ML19340D960

Informs Commission of NRC Legislative Program for 97th Congress

ML19340D960
Person / Time
Issue date:	08/06/1980
From:	Bickwit L NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:
Shared Package
ML19340D955	List: ML19340D954 ML19340D958 ML19340D960
References
TASK-PS, TASK-SE SECY-80-366, NUDOCS 8101050634
Download: ML19340D960 (11)

Text

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RC, W UNITED STATES O

wucteA.R REGULATORY COMMISSION WASHIN GTON, D. C. 20555 Aucust 6, 1980 SECY-80-366~

POLICY SESS10PJ ITEM To:

The Commissioners From:

Leonard Bickwit, Jr.

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General Counsel

Subject:

NRC LEGISLATIVE PROGRAM FOR 97th CONGRESS Discussion:

During the 96th Congress, now reaching its con-cluding election year phase, a range of legislative proposals affecting NRC were adopted (most notably, in the Com=ission's FY 80 authorization and the President's Reorganization Plan No. 1).

Althcugh.

a number of pending legislative initiatives affecting the Co= mission may yet be dealt with in the closing weeks of this Congress (e.g., waste management and appropriations legislation), it is a suitable time to begin the process of developing a Commission legislative package which woul'd be ready for submission at the beginning of the next Congress in January 1981.

I To begin the process, OGC has preoared this memorandum setting forth a preli:iinary list of legislative proposals uhich the Commission may wish to consider.

These proposals were identified primarily from NRC staff suggestions, but also include topics which emerged during the various TMI inouiries as well as several which the Con-missiori has previously considered in other con-texts (e.g.,

siting and licensing reform dis-cussions).

The list is not intended to be ex-haustive; and there are undoubtedly other pro-posals which will emerge during consideration of this package.

To assist us in developing the NRC legislative program, Commission guidance on'two general points i

is necessary at this stage:

(1) which of the proposals listed should be included and (2) how such included proposals should be pursued.

CCUTACT:

SECY fiOTE:

OGC has requested that tne Ccmmissioners review this paper and fornulate views in preparati; Carlton R. Stoiber, OGC for a Comnission meeting which is expected to be x - 43224 conducted by October 1, 1980.

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l On the first point, we suggest that Commissioners review the proposals listed in this memorandum I

(and any others which they would like to have considered) and assign them to one of' the follow-ing three categories:

(a) those which clearly appear to have merit and which should be drafted now for inclusion in the NRC package; (b) those f

which require further consideration (perhaps I

including staff studies) before a decision on whether to submit them can be reached; and (c) those which the Commission does not want to pursue further at this ti=e.

On the second point, the Commission should con-sider how each proposal could best fit into.the Commission's overall legislative program.

Several.

alternatives are available.

First, NRC could prepare and submit to Congress a draft omnibus bill.

This practice was followed by the AEC and involves collecting a number of unrelated pro-visions to be offered as one measure.

The demise of the Joint Coccittee on Atomic Energy, and the related multiplication of Congressional committees having jurisdiction over NRC activities makes it more difficult to maintain the coherence of an omnibus proposal.

Also, an~ omnibus bill is prob-ably not a very good vehicle for dealing with issues of fundamental policy significance, which are more properly the subject of a separate bill (e.g., the Uranium Mill Tailings Radiation Control Act).

Rather, an omnibus package is best suited to achieving more modest reforms of the Commission's statutory framework and to correcting specific technical and procedural problems faced by the agency.

A second legislative approach would be to seek to attach certain desired provisions to NRC's authori-zation bills.

This technique has become common during the past few years (most notably in the FY 80 authorization), and would seem most relevant for measures requiring funding to implement (such as proposals discussed later in this memorandum for providing special economic assistance to resident inspectors.)

A third possible approach is to forward proposals individually, as they are developed, to the Com-mission's various legislative committees,. leaving to the chairmen of these co=mittees the decision 0

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-l about how to pursue a particular reform.

However, I

this alternative may fail to get NRC proposals the kind of attention needed to move them through a crowded legislative calendar unless there is i

substantial interest in a particular item by a key I

Congressperson.

I' A fourth approach could be used if the Commission wants to develop major proposals of a broader i

scope and complexity dealing with a significant policy area.

For example, if several provisions i

relating to NRC's resident inspector program are developed, it might be useful to draft a single bill (perhaps entitled something like "The Nuclear Inspection Improvement Act of 1981") to give the subject greater visibil;ty and to discourage the kind of unrelated amendments which can alter the primary thrust of an omnibus or authorization bill.

This approach would also be appropriate if the Commission decides to revive its own drafting efforts on siting and licensing reform legislation.

Finally, before listing possible legislative initiatives, it should be noted that a number of categories of potential legislation have been omitted.

First, we have not included proposals for siting and licensing reform legislation.

You will recall that lengthy Commission discussions were conducted in 1978 and early 1979 concerning this long-standing issue.

Just prior to the Ihree Mile Island incident, which has pre-empted Com-mission attention for the last year and a half, the Commission had narrowed the range of issues.it was tentatively prepared to recommend to the

. Congress.

These seven basic topics included:

early site approval; combined construction permit-operating licenses; coordination of federal reviews; eliminating mandatory ACRS review; new provisions on hearings; interim operating licenses; and a pilot intervenor funding program.

The Commission could revive its siting and licensing effort or continue to deal with these issues in the context of pending legislation, such as the Udall bill.

If the Commission wishes to consider drafting its own licensing reform proposals, a useful starting point for that exercise would be the draft bill submitted as an attachment to our memorandum of thrch 14, 1979, entitled " Draft Siting and Licens-ing Legislation."

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4 A second area of possible legislation not included in this memorandum deals with waste management issues.

As you know, the Senate has enacted a compromise version of legislation developed by three separate committees.

The Commission has commented on these proposals; and i' would seem advisable, at this stage, to confine NRC efforts to working with the Congress on this pending measure rather than attempting to develop separate bills.

A third category of legislative issues has already been discussed in the context of Chapter V of the TMI Action Plan.

These matters include seeking a Sunshine Act exemption for emergency situations; clarifying NRC responsibilities for cleanup of damaged facilities; creating a " maintenance license" category; clarifying NRC authority to issue license amendments prior to hearing; and need for authority to regulate a chartered national operat-ing company or consortium.

It was decided to defer any action on these subjects until a need for them could be clearly established.

After you have had an opportunity to review the following list of proposals, we suggest that the Commission convene a meeting to discuss which items it wishes to pursue and how it wishes to submit them to Congress.

Air Shionent of Small Quantities of Pu ELD recommended that legislation be sought to exempt shipment of plutonium in IAEA safeguards samples from the requirement that shipment be in Commission-certified crash-resistant packages (pursuant to " Scheuer Amendment," P.L. 94-79).

The present NRC-approved packages are large and not adapted to the rapid air shipment of sample quantities of Pu of up to several hundred grams to the IAEA safeguards laboratory as required in the implementation of the U.S./IAEA Safeguards Agree-ment.

In ELD's vi.ew, the desired authority can only be

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obtained through legislation.

ELD believes that the non-statutory alternative of developing and certifying smaller packages for safeguards samples.

to meet URC criteria applicable to the larger

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5 approved package design would not be,available in the near term.

IP has indicated that the ELD suggestion sheuld be studied further before being actively pursued.

Development of a regulation to exempt very small shipments of Pu is underway.

Expand NRC Order Authority over Non-Licensees The 1cgal authority of the Commission under the Atomic Energy Act to issue orders to non-licensees is uncertain.

Both IE and ADM strongly support an OGC proposal to amend the AEA to authorize NRC to reach conduct by non-licensees, including vendors, managers and individual employees of the licensee whose conduct affects the public health and safety through its relationship to NRC-licensed activi-ties.

A related proposal would give the Com-mission authority to take enforcement action, including the assessment of civil penalties, against persons not employed by a licensee.

The Division of Security, ADM, believes that such authority could be necessary in a situation where contract guard forces or safeguards systems ven-dors are required to have access to NRC classified safeguards information.

Civil Penalties for Unreasonable or Non-Prudent Behavior not in Violation of Tech-nical Specifications or Regulations Although NRC may be able to revoke a' license under.

Section 186 of the AEA in situations involving l

actions'which threaten the public health and safety but do not violate NRC regulations or technical specifications, less drastic measures l

may not be available to penalize the licensee.

Therefore, amending the AEA to create a civil penalties category for unreasonable or non-prudent behavior affecting public health and safety may be desirable.

However, because such a category of actions is difficult to define precisely, further analysis would need to be devoted to define the conduct to be penalized.

This proposal is by OGC and has IE's support.

Civil Penalties for Violations of NRC Subpoenas An OGC proposal would amend the AEA to include civil penalties in addition to contempt sanctions

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against violators of a Commission subpoena.

Section 233 of the AEA currently requires referral to the Attorney Genera) for contempt of Court proceedings against any person who fails to obey an NRC-issued subpoena.

In some cases a more effective method of obtaining information from a reluctant non-licensee could be imposition of civil penalties against the party for disobeying a subpoena, rather than Justice Department referral, Authorize NRC Grants to Academic Institutions The Office of Nuclear Regulatory Research propos..s that NRC be authorized by legislation to undertake direct grants to colleges, universities and ather institutions, to provide NRC with tecbnical exper-tise from an independent and broader range of the scientific community.

The AEC possessed this authority under the Atomic Energy Act.

However, the Energy Reorganization Act of 1974 transferred this authority te ERDA (now DOE) and not to NRC.

RES suggests that the grant of authority be-imple-mented by amending Sec. 205(b)(2) of the Energy Reorganization Act of'1974 by deleting the present subsection (2) and inserting in lieu thereof:

"(2) Engaging in, contracting ~for, or making grants for, research which the Commission deems necessary for the performance of its licensing and regulatory functions."

This measure'would not in itself involve any increased funding, but would merely provide NRC with greater flexibility in the use of appropriated funds (consistent with any other statutory require-ments) to support the agency's regulatory research l

program.

Administrative Imposition System for Civil Penalties i

As part cf its proposal for increased limits on its civil penalty authority (adopted in the FY 80 authorization), the Commission sought a provision l

allowing civil penalties to. be imposed by the agency through an administrative process.

Under the present system, NRC can impose civil penalties againist a licensee but cannot collect such penalties

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without a civil action instituted by the Depart-ment of Justice in District Court.

In considering NRC's FY 80 Authorization, Congress increased the

' civil penalty 1Leits but dropped the proposal for administratively imposed and collected penalties.

(See Senate Rpt. No. 9 6-176, page 24, Committee on Environmental Public Works to Accompany S. 562, May 15, 1979).

La view of oar new increased civil penalty author-icy and of the apparent Congressional opposition to expanding NRC's administrative collection authority, a renewed request for such authority would probably not be successful.

In the near term the Commission should build a record uti-lizing the new penalty limits.

Should the Com-mission later find an administrative imposition and collection system is still desirable, a pro-posal to that effect can then again be submitted to Congress, with a better factual basis for establishing the need for a statutory change.

Authority for Commission Waiver of the "Present".

I Recuirement i

One of the Commission proposals not included in the Reorganization Plan would have altered the requirement of the Energy Reorganization Act that the Commission can take " action" only through a majority vote of the members "present."

This proposal was also transmitted to the Congress 1

as part of NRC's last omnibus legislative request; i

however, the recommended change was not adopted.

The Commission is unique among multi-member regu-latory agencies in being unable to act other than l

by a vote of members present.

The Commission i

recommended that the reorganization plan provide i

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for waiver of the "present" requirement when all members of the Commission agree to such waiver.

I If the Commission wishes to pursue a change in the "present" requirement, the statutory language which NRC forwarded to OMB for this purpose could l

be included in an omnibus package and resubmitted to Congress.

(See letter from Ahearne to McIntyre, 2/26/80.)

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Carry-Over of a Commissioner's Tenure Until a Successor is Selected Another proposal by NRC not included in the Reorganization Plan was the amendment of the Energy Reorganization Act of 1974 to authorize the continued service of a Commissioner af ter his term has expired until a successor has been confirmed and has assumed office.

In the past, Commissioner vacancies have impeded Commission action.

This provision would reduce that possibility in the future and would put the Commission on a par with other regulatory agencies in this regard.

A variation of this proposal would authorize the continued service of a Commissioner who has been renominated by the President.

This second ver-sion, supported by Commissioners Bradford and Gilinsky, would avoid the tendency of the broader provision to invite unnecessary delay in the process of filling Commission vacancies.

Clarify Basis for NRC's Part 21 Rules to Permit Ass es sment of Penalties Against Non-Licensees Part 21 regulations implement section 206 of the Energy Reorganization Act of 1974 which requires any individual director or officer of a licensee or non-licensee vendor who obtains information indicating a failure to comply with the AEA of i

1954 or any Commission rule, order, or license relating to substantial safety hazards, or indi-cating the existence of a defect which could

. create a substantial safety hazard, must notify the Commission i=nediately of such failure to comply or of such defect.

An argument can be made, however, that section 206 can not be used to enforce compliance with some of the provisions of Part 21 that go beyond imposing an obligation to report defects and items of non-compliance, such as the requirement to have procedures to assure that high-level officials get informed of defects and non-compliance items so that they can be reported.

Clarifying legislation on this point

. and related Part 21 matters should be considered.

Use I=munity OIA has recommended legislation to amend the

-Organized Crime Control Act of 1970 to provide NRC

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"with the authority, granted to AEC, to use the t

"use immunity" provisions o~f 18 U.S.C. 6001 et The 1970 Act authorizes the presiding orficer seg.

in an agency proceeding, having granted a witness l

immunity from prosecution based upon compelled i

testimony, to order a witness claiming the privi-lege against self-incrimination to testify.

The i

I 1970 Act makes the use immunity provisions appli-cable to "any executive department" - which would i'

include DOE - and named agencies, e.g., the AEC.

Although it can be argued that the reference to the AEC in 18 U.S.C. 6001(1) could now serve only to make the use immunity provisions available to NRC, it is not clear that the grant of such author-ity to "AEC" gives "NRC" the sr.me authority.

Accordingly, it is appropriate that the reference to the AEC in the statute be clarified to indicate NRC's authority.

This can be easily accomplished by substituting the term "NRC" for "AEC." 1/

Resident Inspector Relief Legislation Resident inspectors who must relocate from regional effices to reactor sites are experiencing finan-cial hardships.

These hardships are causing, or are likely to cause, the Resident Inspector Pro-gram to suffer from a high turnover rate, trans-fers, resignations, poor morale and the inability.

to attract qualified candidates to fill vacancies.

Present Government-wide reimbursement provisions do not adequately alleviate the financial burdens.

IE has two proposals to alleviate the financial hardships which are discussed in a June 24, 1980 memorandum from the Director of I&E to Chairman Ahearne.

The first proposal is to reimburse resident inspectors for all customary, out-of-pocket expenses which result from a relocation from one duty station locale to another.

The second proposal is to contract for a commercial relocation service which would pay the resident inspector for the equity in his current home and would sell that home without further involvement of the inspector.

IE, OGC and the Controller's Office are pursuing these proposals.

Because these proposals would require additional funding to be implemented, they must be linked in some fashion to the Commission's authorization and appropriation legislation.

Also, because the Resident Inspector Program has 1/

This change would not affect other agencies' authority to employ "use immunity."

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10 been'a key element in recen't efforts to reform NRC's regulatory system, the Commission may wish to consider submitting proposals to address resident inspector hardships to Congress in a separate " resident inspector improvement" package, rather than merely attaching it to a measure having several, different subjects.

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Assignment of Government Vehicles to Resident Inspectors for Home-to-Office Use Present Government-wide law prohibits the assign-ment of Government-furnished vehicles for home-to-office use.

IE wants to be able to assign a vehicle to a resident office to be available to the inspector on a 24-hour basis, i.e.,

the on-call resident inspector can use the vehicle for trans-portation home so that inspector and vehicle are immediately available when an incident occurs.

If the Commission would like to pursue this proposal, it could also be developed as part of a larger package of measures to alleviate resident inspector hardships.

Amendments to Price-Anderson Act '

Statutory amendments are being considered in two areas: (1) the " extraordinary nuclear occurrence" (ENO] provisions, subsections 790(n) and 11(j ) ;

and (2) the limitation of liability provisions, subsection 170(e).

In the ENO area, the proposal is to either modify or eliminate the ENO concept.

The limitation on liability, currently $560 million, will rise even under the current statute once the number of operating plants passes a certain point.

Suggestions have been made, how-ever, to increase the limit to $1.3 billion (based on inflation since 1957) or to eliminate the limit entirely, leaving the individual utilities liable for damages which exceed the first three layers of Price-Anderson coverage.

These possible amend-ments are supported by the Office-of State Pro-grams; NMSS believes additional study of-the subject is necessary before a decision on whether to submit a legislative proposal to Congress can' be made.

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Section 303 of H.R. 6390, introduced by Mr. Udall, provides for elimination of the ENO concept as g,n

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well as an increase in the iimitation on liability from $560 million to $5 billion.

The Commission, in testimony on Section 303, " stated tihat it was

' reluctant' to take a position on this [liabiMty]

question because it involved 'value judgments about proper allocation of financial burdens between the nuclear industry and.other interested persons.'"

SECY 80-230B, Hanrahan and Bickwit to the Commissioners, pages E-3 to E-4.

Mr. Bingham recently introduced the Nuclear Liability Reform Act of 1980 which would increase Price-Anderson coverage to $7 billion and would remove all limits on liability for reactors still in the construc-tion stage.

In light of the recent Congressional activities in this area, Commission interest in furthering changes in Price-Anderson could probably be pur-sued in the context of pending legislative pro-posals, rather than attempting to draft an alter-native version.

Statutory Status to IE On February 21, 1979, Chairman Hendrie submitted a draft bill to Congress which would provide statu-tory recognition for the Office of Inspection and Enforcement.

The proposal was not included in other provisions adopted as part of NRC's FY 80 Authorization.

Also in its recommendations with respect to the NRC reorganization plan, the Com-mission decided to defer seeking IE statutory status pending completion of several organiza-tional activities relating to IE functions, in-I

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cluding internal staff reorganization and regionali-zation.

The Commission may w'*.sh to consider reviving this proposal when these internal efforts have been completed.

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Leonard Bickwit, Jr.

i DISTRIBUTION General Counsel Comissioners Comission Staff Offices Exec Dir for Operations Secretariat sw x.

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