ML19312E905
| ML19312E905 | |
| Person / Time | |
|---|---|
| Issue date: | 04/29/1980 |
| From: | Bickwit L NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML19312E906 | List: |
| References | |
| TASK-PS, TASK-SE SECY-80-219, NUDOCS 8006180117 | |
| Download: ML19312E905 (9) | |
Text
k UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D. C. 20555
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POLICY SESSIDN ITEM
^"" 29, M80 l
9 For:
The Commissioners From:
Leonard Bickwit, Jr.
General Counsel
Subject:
COMMISSION REVIEW PROCEDURES Purnose:
To suggest procedures for increased Commission involvement in major decisions by NRR, NMSS, and I&E.
Discussion:
Introduction On December 26, 1979, the Chairman requested that OGC develop a proposal for increased Commission involvement in certain categories of important staff actions.
(Attachment 1).
Acting on this suggestion, we solicited the views of ELD, NRR, NMSS, and I&E, and receiv2d the final staff response on February 21
( Attachments 2-5 ).
In this paper we outline the staff comments briefly and suggest possible procedures for increasing the Commission's role in major licensing and enforcement decisions.
Staff Resconses 1.
Office of the Executive Legal Director The response of the Executive Legal Director analyzes the " potential impacts of the Chairman's suggestions on communications between the staff and the Commission in light of ejc carte and separation of functions restrictions".
(The Chairman's request asked that we keep in mind the Commission's interest in liberalizing ex carte constraints.)
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The Executive Legal Director points out that such constraints (imposed by Section 554(d) of the Administrative Procedure Act and 10 CFR 2.719) would not apply in uncontested OLs or uranium milling licenses where no adjudicatory proceedings are provided.
This would generally be true of enforcenent actions as well.
Difficulties arise, however, in cases wheta the.NRC staff performs an advocacy role.
In such adjudications, increased staff / Commission communications would be permissible only if statutory and regulatory provisions governing separation of functions within NRC are suitably modified.
Even if this is accomplished, however, constitutional due process may still limit the extent to which the Commission may participate in contested licensing matters.
2.
Office of Nuclear Reactor Regulation The Director of NRR describes in some detail the process by which cps and OLs are issued, including the respective roles of the Director of NRR and Licensing Boards.
For cps, where a hearing is mandatory, "NRR is directed by the Board to issue a construction permit and has no discretion to do odnerwise".
The situation in OLs is somewhat more complex.
In uncontested OLs, the Director of NRR or his designee has final authority to issue the license.
In the more typical case, however, some issues are contested, and as to these issues the Licensing Board has the ultimate decisionmaking authority.
Issues not contested before the Board remain within the province of the Director of URR or his designee.
In regard to orders to reactor licensees (operating plants or plants under construction),
the Director states that un' der present procedures, NRR obtains Commission guidance, either informally or at a public meeting, prior to issuing such orders.
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The Director concludes by suggesting a number of areas for possible increased Commission involvement.
These areas include: (1) Antitrust matters (at CP and OL stage),_(2) at the OL stage, findings on matters not under adjudica-tion in contested cases, and the ultimate public health and safety finding in uncontested cases.
3.
Office of Nuclear Material Safety &
Safeguards The Director first discusses how his office exercises its delegated authority to license uranium mill complexes and low-level waste disposal sites.
He notes that NMSS does not have delegated authority to license high-level waste repositories.
In both of these areas, NMSS follows a procedure which provides several oppor-tunities for public comment and state participation.
Similar opportunities will be provided if, and when, high-level waste licensing begins (See Proposed 10 CFR Part 60).
The Director states that maximum benefit from increased Commission involvement in NMSS licensing would be derived from participation in hearings, a number of which may be expected in connection with future license applications.
The Commission could also comment on SER's, EIA's, EIS's, or other major decisional documents pertaining to NMSS licensing activities.
4.
Office of Inspection and Enforcement The Director of I&E supplied a flow-chart indicating the various steps taken during escalated enforcement actions.
The chart shows how various NRC offices (including the Regions) provide input into the decisional chain resulting in orders, civil penalties, and notices of violation.
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Since 1975, the Director states that the policy of I&E has been to notify the Commission of "si,gnificant enforcement actions" before such actions are carried out.
At present, two days elapse between notification of the Commission and dispatch of the enforcement package to the licensee.
For most orders, there is no delay between notification and dispatch.
The Director concludes by stating that, in his view, new procedures for increased Commission involvement in enforcement actions will raise mainly legal, rather than technical, issues.
Options The legal constraints described by the Executive Legal Director severely restrict increased Commission involvement in adjudications where the NRC staff acts as a party.
Whe ther, or to what extent, the Commission can involve itself in adjudicatory proceedings is a matter addressed in the Ex Parte Study.
Because the Commission is now evaluating the legal and policy considerations involved in increased adjudicatory participation in connection with that Study, it is not discussed here.
Instead, we concentrate on options where these constraints do not apply.
It should be noted that, as to both Sections below, some options listed may be mutually exclusive while others could be combined with suitable modifications.
NRR/NMSS Licensing Decisions 1.
Delay the effectiveness of an uncontested NRR or NMSS licensing decision for a given number of days, during which time the staff would brief the Commission at a public meeting.
The staff would be asked to review with the Commission any problems unique to this license, and how they have been resolved.
This
- 1 option would require only minor i
alterations to current NRC regulations.
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2.
Amend the immediate effectiveness rule with regard to contested reactor licenses, providing daat the license would issue only upon Commission approval. 1/
The Commission would thus have the option of delaying license issuance pending the resolution of administrative appeals.
This function could be carried out by three-member Commissioner boards, with ultimate authority residing in the full Commission.
Use of such boards could become necessary if the number of such cases became too large for the entire commission to decide individually.
This option would require substantial changes to current NRC regulations and an increase in Commission-level resources.
3.
Involve the Commission in license application review prior to docketing the application--CP or OL.
This would permit the Commission to review, with staf f assistance, a license application prior to completion of the staff's pre-docketing review. 2/
The Commission could, during this process, request that the staff devote particular attention to i
1/
This would make permanent the procedures now contained in Appendix B to 10 CFR Part 2, perhaps in modified form.
I The FCC utilizes a procedure of this type.
See 47 CFR 0.281(a).
4 The Commissioners 6
certain issues during the remainder of its review and in the hearing if one is held.
Because this re'<iew would be carried out prior to docketing, ex parte constraints would not apply to Commission-staff contacts.
This option would require substantial changes in current NRC regulations and the development of detailed procedures for carrying out this " pre-docketing" application review.
Additional resources at the Commission level would also be needed.
4.
After applications have been docketed (CP or OL), require that intervenors submit contentions within a given period, perhaps 60 days.
Follouing this, two paths could be followed:
(1) all intervenor contentions would be ruled upon by the Commission for relevance to the case, i.e.,
whether they should be considered at the hearing, or (2) "signif-icant" or " novel" contentions would be ruled upon by the Commission for the same purpose.
Formal hear 3 ngs would not be initiated until the Commission had ruled on intervenor 1
contentions, thus permitting the Commission to consult freely with the staff.
This option would, as with #4, require significant changes in NRC regulations and a probable increase in Commission-level resources.
5.
Provide that licensing and appeal boards make only recommended findings and conclusions, subject to final review by the Commission before a license is authorized.
Since ex parte constraints would apply in adjudications, the Cornission would have to develop an independent review staff to perfo;m this function adequately.- This option could be utilized in special classes of
- cases, e.g.,
power reactors or
" major" production and waste processing facilities.
It would obviously require extensive changes to the entire NRC adjudicative process.
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6.
Increase Commission interaction with the ACRS in specific licensing cases.
(Since the ACRS is not a party, ex parte constraints would not apply.)
Tii6 Commission could explore, on a regular basis, problems with specific license applications identified by the ACRS during its review.
This option would require minor, if any, changes to current NRC regulations, and probably would have no effect on Commission resources.
I&E Enforcement Actions 1.
The current two-day delay between Commission notifications and dispatch of an enforcement package could be expanded, perhaps to 10 days.
This would give the Commission suf-ficient time to actually review the package and request further delay if necessary.
This option could be accomplished informally.
2.
Define a set of "significant" enforcement actions for which formal Commission approval will be required. 3/
The definition could be keyed in to the offense categories now under development as part of the enforcement guidelines revision program.
This option would require relatively minor NRC rules amendments, but might place considerable additional demand on Commission-level resources.
3.
In cases where Commission approval is needed, require I&E to present different enforcement options to the Commission.
This option would represent a minor addition to option #2.
l 4.
Establish dbree-Commissioner boards to pass on the initiation of specific enforcement actions, with ultimate authority residing in the full l
l 3/
The FCC uses this procedure.
See 47 CFR 0.281(b) and i
47 CFR 73.3561, 3562, 3584.
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Commission.
Such boards might be necessitated by a heavy load of enforcement caset.
The load, of course, would depend upon the exercise of option #2 above--if the class of cases for Commission review is relatively small, Commissioner boards might not be necessary.
5.
Provide a "saa sponte" review system for enforcement packages similar to that now used for Commission review of 2.206 decisions.
Enforcement packages would be sent to the Commission for review within a specific period, perhaps 20 days.
The package would be dispatched unaltered unless the Commission acted within that period.
This option would necessitate only minor rules amendments, but would place a considerable additional drain on Commission-level resources.
6.
The Commission itself could decide "significant" requests for enforcement action under 10 CFR 2.206.
(This option would involve requests addressed to the Directors of NRR and NMSS as well as I&E.)
Categories of cases would be specified in the regulations where Commission decision would be required, e.g.
those involving major policy issues or the interpretation of important regulatory provisions.
Since 2.206 proceedings are not formal adjudications, ex parte constraints would not
. apply.
This option could, depending on the definition of "significant",
require substantial additional Commission-level resources.
7.
The Commission could review, in an appropriately defined class of cases, whether enforcement orders have been satisfied.
In the Marble Hill matter, for example, the Commission has requested daat it be briefed by the Director of I&E prior to lifting the order suspending
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1 construction.
The " Marble c ill procedure" could be extended to enforcement orders issued by NRR and NMSS, with similar limitations on which orders the Commission will review.
Recommendation:
Our basic purpose in this paper has been to suggest ideas rather than to advocate a specific course of action.
We suggest that a meeting be scheduled at which the options noted above, and others which may arise during Commission review of this paper, may be discussed and voted on.
Detailed crocedures and rules amendments could then be developed, and resource demands estimated, for opticas approved by the Commission.
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Leonard Bickwit, Jr.
General Counsel i
Attachments:
- 1. Memo Ahearne to GC (dated 12/26/79)
- 2. Memo Shapar to Bickwit (dated 1/18/80)
- 3. Memo Denton to Bickwit (dated 1/29/80)
- 4. Memo Stello to Bickwit (dated 2/6/80)
- 5. Memo Dircks to Bickwit (dated 2/21/80)
SECY NOTE:
This paper will be scheduled for consideration at an open meeting.
Please refer to the appropriate Weekly Commission Schedule, when published, for a specific date and time.
DISTRIBUTION Commissioners Commission Staff Offices Exec Dir for Operations ACRS Secretariat
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MEMORANDUM FOR:
General Counselj i
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FROM:
John Ahearne
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SUBJECT:
PROCEDURES FCR COMMISSION REVIEW Recently Congressman Moffett suggested the Commission itself review the Marble Hill case and decide when and under what conditions construction 'should be allowed to resume.
While not agreeing with some of the details in Mr. Moffett's letter, I do agree with the general conclusion.
This type of action belongs to a general category of significant regulatory actions in which I believe the Comission should be directly a ccountabl e.
Please review the procedures by which Staff offices currently take major action -- including:
(1)
NRR agreement a licensee is ready for Cp or OL.
(2)
NMSS ag-eement applicant for mill tailings or waste repository is ready fer license.
(3)
I&E decision that construction or operation o# fuel facility or reactor should be stopped or restarted.
(4)
I&E decision that other major enforcement action should be taken.
Keeping in mind the Cc= mission's interest in liberalizing the ex carte procedures (and as requested by the president in his ConclusioIis regarding the Kemeny Comissien report), please construct procedures that would have the Comi:sion decide or approve the above actions.
I would appreciate your developing a proposal by January 22nd.
Please obtain the view of the concerned offices and OELD.
cc:
Commissioner Gilinsky Commissioner Kennedy Commissioner Hendrie Commissioner Bradford Mr. Chilk EDO
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