ML19340C590
| ML19340C590 | |
| Person / Time | |
|---|---|
| Site: | Crane, Bailly  |
| Issue date: | 10/23/1979 |
| From: | Scinto J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Bernero R NRC - NRC THREE MILE ISLAND TASK FORCE |
| Shared Package | |
| ML19340C591 | List: |
| References | |
| TASK-TF, TASK-TMR NUDOCS 8012110338 | |
| Download: ML19340C590 (2) | |
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g NUCLEAR REGULATORY COMMJSSION p
WASHINGTON, D. C. 20555 g
October 23, 1979 Note to:
R. M. Bernero Re:
THE NRC VICTORY IN BAILLY (PORTER COUNTY... v %W This is exactly the kind of pyrrhic victories the agency's lawyers have won for the agency over the years. The basic argument starting with PRDC has been 2
that various questionable activities are within the discretion of the agency and its expertise (in a complex technology which nobody else is smart enough to understand) should be given great deference. This leads the agency into questionable overstatements to the court.2 While it is respectable to urge a wide discretion for one's client, it should come coupled with advise to one's client about the obligation that such discre-tion imposes. Here we have the NRC arguing that the court should not presume an institutional bias in having the staff judge whether a prior staff decision should be reversed. Although there is a legal support for this as a proposition of law, it is conducive to the very situation of no effective oversight of regulatory policy decisions made by the staff which is characteristic of the NRC (and the AEC before it).
It is made possible by an admittedly acceptable legal argument; it is enhanced by the kinds of burden-of-proof barriers imposed on outsiders to raise an issue for reassessment;8 and it becomes enshrined by
" improvements" in regulations which specifically decline petitions for review by the Commission of the Director's decision on a petition to reverse a prior determination by the Director.
In short, this decision is indicative of deceptively attractive trap that the agency wandered into by the basic - and winning - legal argument that the agency has the discretion to conduct its business in ways which do not critically l
question the wisdom (if not the technical competence and technical integrity) of its staff.
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l Jo eph Scinto 1
1 Postponing decisions on safety questions to a later point in the process; sharply compartmentalizing into two fixed compartmentt the opportunity to i
persons outside NRC to formally challenge safety issues -- even though those issues change dramatically from that represented in the formal hearing " box."
2Such as those suggesting that the process requires unresolved safety questions be resolved before an operating license is issued p 10-11; clearly indicating that no one told the court that plants are given operating licenses with unresolved generic safety questions and that plants run for years with unresolved generic safety questions - including the very question of hydrodynamic loads on suppression pool containments that was before the court.
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i 2-October 23, 1979 R. M. Bernero j
i 8The difficulty of showing the safety danger posed by a question which has not yet been assessed - this difficulty is best seen in the actual responses to 2.206 petitions.
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