ML19322D257
| ML19322D257 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 08/03/1979 |
| From: | Bickwit L NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Gilinsky V, Hendrie J, Kennedy R NRC COMMISSION (OCM) |
| Shared Package | |
| ML19322D253 | List: |
| References | |
| TASK-TF, TASK-TMR NUDOCS 8002100097 | |
| Download: ML19322D257 (4) | |
Text
{{#Wiki_filter:,,C T NUCLEAR REGULATORY COMMISSION [, } WASHINGTON. D. C. 20555 Sys August 3, 1979 8 ~ e,%,, ~
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Q& s (?) hM MDiORANDUM FOR: Chairman Hendrie b) O d-Comissioner Gilinsky Comissioner Kennedy Co=missioner Bradford Co=sissioner Ahearne 7 'FROM: h Leonard Bickwit, Jr., C-eneral Counsel SU3 JECT: COMMISSION PARTICIPATION IN LICENSE ISSUANCE At the 'Co==ission's last meeting on J.'Def_erral of Licenses ;"J - e Co-- i ssioner Ahearne, requested OGC to outline a possible' temporary modification to the Comission's current procedures to permit increased Commissi6hrparticipation, in power reactor. license. issuarii::Fd&ci' T65s9.to= ensure =that-TMI-related safety' issues have s been. adequatelyrconsidered..before licenses are actually issued. .We have considered a variety of options in which the Cor: mission would act either in adjudicatory or in non-adjudicatory capa-cities. Tne criteria we used to analyze these options included: (1) the effectiveness of -Cow ssion participation; (2.) the degree of direct. delay or disruption such participation would have on ' the particular case involved; (3) the potential for future dis ruption 'n the case (in later appellate review for example); (4) the workload burden participation would impose on the Cor: mis sion; and, of course, (5) compliance with the legal requirements of the Atomic Energy Act and the Admihistrative Procedure Act.. If the Co= mission were to decide that new licenses should be issued only with the approval of the Com=ission itself, we would recom-send the following; cburse of action for use in any proceedings in sinich an-adjudicatory hearing is. required, i.e., contested operat-license proceedings and construction permit and limited work in$ho:__ cation. proceedings, whether. contested or uncontested. e au In the case of an uncontested operating license proceeding, the-staff could co==unicate with the Co-Ission informally prior to issuing any license in lieu of employing the more complex pro-cedure discussed below. COSTACT: Stephen S. Ostrach, GC X-43224 8002100 09 7
The Co= mission 2 August 3, 1979 Proposed Procedure 1. Policy Statement The f4-ment.1/se step would be issuance of a Cocnission policy state-The statement would set forth the Commission's belief that while the accident is still under investigation, the Com-mission itself should increase its involvement in license issu-ance since it has the ultimate autbority within the agency and since it' possesses the fullest information on all aspects of the ' accident. The statement would then list a number of subject (operator training and emergency planning are possib'le areas examples) which the Commission had determined were TMI-related. Licensing boards would be directed to consider whether to reopen the re. cord in proceedings before them to take additional evidence on those subject areas.6/ The boards would decide whether to reopen the records on the basis;of their determination whether, without reopening, the record was a fully adequate and current basis on.which a decision in question could be made. This is a much more liberal standard than the Appeal Board would employ in determining wnether to order a record reopened and it is essen- .tially ecuivalent to the test each board should make on its 'cnm motion before closing the record on any issue before it. 2. Initial anE' Reco= minded Decision The policy statement would provide that -dhen a board is prepared to issue its decision in a case before it, it would issue a partial ini.tial decision on all aspects of the proceeding except those which the Co= mission had determined to be TMI-related. The board would issue a reco=mende'd -decision on those latter matters. That partial initial decision would be reviewed by an Appeal Board in the normal fashion with subsecuent by the Co= mission. ~ discretionary review 3. Cdamission Participation The policy statement would further provide that the recommended decision sould go directly to the Co==ission for its considera-tion, and that the parties would be given an appropriate time to ll Some might consider it more appropriate to co==unicate with the boards by a series of orders in lieu of a policy state-ment. For ease of discussion, this me=orandum will assume that the policy statement approach is preferred. 2/ As the Co==ission was told on July 12 by IER and the Chair-man of the Atomic Safety and Licensing Board Panel, a number of boards have already received motions to reopen based on the TMI accident.
The Co==ission 3 August 3, 1979 brief exceptions to that decision. The Co=nission would then have four options: (1) it could accept the recommended decision and =ake it final; (2) it could reverse the decision and deny issuance of the license; (3) it could remand the proceeding to the licensing board for the taking of further evidence; or (4) it could itself hear further evidence and then decide the matter. 4. Discussion Und'er this procedure the Commission would be acting in a fully adjudicatory capacity and thus would be subject to the ex parte and separation of functions rules. Furthermore, if the Com- - nission did choose to take evidence it would have to employ full adjudicatory procedures including a right to cross-examination (when app.ropriate) and application of the normal rules of evidence. Since the licensing board would issue only a partial initial decision,, the icnediate effectiveness rule would not apply at that stage. The license would be issued only if and when-the Commission issued the final decision on the TMI-related issues. Judicial, review would be avai1~able after a Commission decision granting the license or denying it outright, although in the former case a reviewing court most likely would defer review until the Appeal Board decided any~ appeals taken on non-TMI issues. L'e believe there is one potential problem with this procedure. The Co= mission's decision on factual matters would have to be based on the record compiled in the.particular proceeding in-volved. This may create some difficulties since the 'Comnission's information on TMI-related issues will be largely derived from such sources as the Lessons Learned task force, the Special Incuiry, and other investigations none of which will "necessarily be "on the record" in ea'ch licensing action. This problem can be alleviated in-two ways. "First, in accordance with the policy statement, the boards can be expected to reopen some of the records to take evidence on TMI-related matters. It can be expected that the staff will develop and continously update its evidence relating to TMI issues which it will tailor to each proceeding and enter into the record. Furthermore, the Com-mission itself can take any evidence it believes necessary to complete the record. Second, many of the decisions the Com-mission is likely to reach as a result of its consideration of the EII* accident can potentially be categoriced as " policy" decisions rather than decisions on factual issues in controversy. The Co--4 ssion is, of course, free to base its policy decisions on extra-record information. O O
Tne Cotuission 4 August 3, 1979 Conclusion Ue believe that the procedure outlined above provides a process . by sich the Com4 ssion could, if it chose to, involve itself-directly in consideration of 'IMI-related catters as they affect the issuance of new reactor licenses. Tne procedure would limit the distortion of current 1.icensing procedures to a minimum and would avoid the legal and practical problems that the Coc:nission would encounter if it attempted to employ non. adjudicatory pro-cedures. Tne Executive Legal Director's Office contributed substantially to this paper and concurs in the above disc ^ussion. cc: EDO ELD OPE (2) OGA ~ SECY (2) l Te. - 4 69
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