ML19341B192
| ML19341B192 | |
| Person / Time | |
|---|---|
| Issue date: | 12/19/1980 |
| From: | Mark Miller Atomic Safety and Licensing Board Panel |
| To: | Ahearne J, Gilinsky V, Hendrie J NRC COMMISSION (OCM) |
| Shared Package | |
| ML19341B181 | List: |
| References | |
| FRN-44FR61372, REF-10CFR9.7, RULE-PR-50, RULE-PR-51 NUDOCS 8101300416 | |
| Download: ML19341B192 (6) | |
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- UNITED STATES f ?^ ' +
E NUCLEAR REGULATORY COMMISSION
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ATOMIC SAFETY AND LICENSING BOARD PANEL WASHINGTON,0.C.20555 O 4.....
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December 19, 1980 MEMORANDUM FOR:
Chairman Ahearne Commissioner Gilinsky Commissioner Hendrie Commissioner Bradford
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FROM:
Mar a1 Miller, Presiding Officer Waste Confidence Proceeding
SUBJECT:
PROPOSED MEMORANDUM AhT ORDER WASTE CONFIDENCE RULEMAKING PROCEEDING Certain of the participants in this rulemaking proceeding have filed motions objecting to the Commission's working group's use l
of outside consultants to assist in preparing its summary of the record and identification of issues an areas in which additional information may be needed.
Scme of these motions also obj ected to " unduly secret" procedures followed in awarding the contracts.
The Commission's May 28, 1980 Memorandum and Order clearly authorized the working group to " engage the services of outside experts" if it determined that such consultation was needed.
The contracting p,rocedures have not been " secret", but they have followed normal and approved practice in accordance with applicable statutes and regulations.
It is recommended that the proposed Memorandum and Order, which was drafted by the Office of the General Counsel, be adopted and issued by the Commission.
Attachment:
Memorandum and Order Please comment to OGC y January 9, 9,5(.
s CONTACT:
E. Leo Slaggie, OGC o34-3224 8101800 l(o
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
John F. Ahearne, Chairman Victor Gilinsky Joseph M. Hendrie Peter A. Bradford
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In the Fhtter of PROPOSED RULEMAKING ON THE STORAGE
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PR-50, -51 AND DISPOSAL OF NUCLEAR WASTE i
(44 Fed. Reg. 61372) j (Waste Confidence Rulemaking)
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M240RA!' DUP AND ORDER l
l Now that the participants' statenents and cross-statements have i
been received, the opening stage of this proceeding as envisioned in our October 25, 1979 Notice of Proposed Rulemaking, 44 Fed. Pec. 61372, has been completed.
Pursuant to the Presiding Officer's order of May 29,19Bb the participants have filed suggestions as to the nature and scope of further proceedings.
Additional input to the decision on further proceedings will l
come from the Commission's working group, which in accordance with the Com-l mission's Fhmorandmn and Order of May 28, 1980 is expected to identify issues in controversy and areas in~ which additional information may be needed. The thy 28,1980 Memorandum and Order also indicated that the working group would i
submit a summary of the record "following the last phase of the hearing."
l The Commission has been informed, however, that to accompany its identifica-tion of issues the working group is preparing to submit a summary of the l
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record so far compiled.
It appears that this early availability of the summary will be advantageous.
The content of the record so far compiled is of course a major con-sideration affecting the choice of further proceedings.
Accordingly, the Commi-ssion finds well-taken those suggestions which urge that a finn decision on further proceedings should follow rather than precede the Commission's opportunity to review the working groups's summary of the record and iden-tification of issues.
A number of the suggestions for further proceedings have t".so urged that the Commission obtain participants' conments on the working group's report in order to provide further assurance that the summary and identification of issues accurately represent the present state of the record.
The Commission believes that concise canments, limited to pointing out significant gaps or possible errors in the summary and identification of issues, can contribute to the usefulness of the working group's product.
Accordingly, the Commission has directed that the working group shall no later than January 15, 1981 file with the Commission and the Presiding Officer and have served on all participants a report which summarizes the record, identifies key issues and controversies, and indicates insofar as possible at this stage of the proceeding how their resolution could affect
' the Canmission's decision.
However, the working group shall not make recom-mendations or express views regarding the conclusions which the Commission should reach on the issues.
Within 35 days from the date the working group's report is filed, par-ticipants may submit to the Presiding Officer comments regarding the accuracy m-
3 of the working group's summary of the record.
Partic' pants may also comment on whether the working group's identification and description of the issues is accurate and complete.
Participants may indicate their views on the relative importance of the issues identified.
To be of greatest use to the Commission ' comments should be kept reasonably brief and to the point.
Following the close of the comment period, the Presiding Officer shall promptly transmit these comments to the Commission, together with his rectn-mendations concerning further proceedings.
Certain of the participants have filed motions objecting to the working group's use of outside consultants to assist in prepari~ng its summary of the record and identification of issues.1/ Some of these motions also objected to the working group's providing an " evaluation" of the record or in effect perfoming any task involving expressions of judgment on the content of the-record.
Some of the motions regarded as unduly " secret" the contract-awarding procedures followed by the staff.
In response to these motions the Com-mission notes first of all that the !!ay 28, 1980 l'emorandum and Order put the participants explicitly on notice (note 3) that the working group was author-ized "to engage the services of outside experts if it detemines that such consultation is needed."
By the nature of the working group's initial
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assignment the Commission would expect the group itself to be the best judge of the scope and type of outside assistance, if any, which might be needed to 1/
Objections were filed by the United t;uclear k'aste t'.anagement Group --
Edison Electric Institute (UtN!*G), the tiatural Resources Defense Council-l t;ew England Coalition on tiuclear Pollution (f;RDC-flECliP), the State of tiew l
York, the State of Ohio, the California Energy Commission and California Department of Conservation, the State of l4innesota, Environmental Coalition on fluclear Power, i'.arvin Lewis, Safe Haven, Ltd., and John O'tieill II.
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perfom the summarizing and issue-identification tasks set out by the Com -
mission's order.El The Commission notes that the working group's contracting activities have not been " secret" but have followed approved contracting pro-cedures in full accord with applicable statutes and regulations.El Further-more, it was plain from the working group's mission to identify " key" issues El The Working Group has been involved in three separete procurement actions during the course of this proceeding.
First, the Working Group has obtained the services of Editorial Consultants, Inc. to provide technical
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editing and writing assistance.
This contract was initiated on Sep-tember 24, 1980 and will teminate on December 10, 1980.
A second con-tract was awarded to Teknekron, Inc. on October 27, 1980 and was com-pleted on November 5,1980.
The purpose of this contract was for the contractor "to improve the quality of the working group's summaries" of the participants' statements of position.
The Working Group explicitly stated that "the contractor will avoid interpreting, paraphrasing, or otherwise modifying the conclusions rade by the participants on the i ssu es. "
The final procurement action (Request for Quotation (RFQ) No.
RS-MiiS-Sl-032) is entitled " Technical Support for the Confidence Rule-making Proceeding."
The purpose of this contract is for the contractor to review the participants' submittals and to assist the Working Group in its function of identifying issues and assuring completeness of the record by summarizing the record, describing issues identified by the participants, and identifying technical errors and omissions or issues where additional infomation is necessary.
Sixty percent of effort under this contract would be reserved for any support required during the second phase of the proceeding.
Proposals received on this RFQ are currently l
being evaluated by the Working Group.
Accordingly, no contract award has l
been made for this RFQ to date.
El For major contractural actions (i.e., contract awards greater than S10,000), the flRC routinely has published in the Co merce Business Daily a summary of the request for quotation.
This is required by the Federal Procurement Regulations.
In the instance involving RFQ No. RS-fMS -
032, the notice was published in the Commerce Business Daily on October 22, 1980 and contained a partial list of offerors wno were solicited. After a contract award is made, a full list of offerors in any procurement action is nomally obtainable under the Freedom of Infomation Act (FOIA).
Prior to awarding the contract, however, the Commission does not l
release the identity of fims who have submitted bids, since release of this infomation could interfere with the competitive process.
The offerors are being evaluated in accordance with applicable law and pro-cedures, including the NRC Organizational Conflict of Interest Rule, 42 i
CFR 20-1.54.
5 that the group would of necessity have to exercise a degree of judgment in addition to performing " ministerial" duties.
Even the preparation of a summary of the record clearly involves some selectivity and discretion.
In managing a record of this size the Commission finds it both necessary and reasonable that evaluative functions at this level be perfomed by the working group rather than the Commissioners themselves.
At the same time, the Commission has made clear that the working group's technical evaluation of the record to detemine completeness is not to include a judgment on how the evidence
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should be weighted in resolving serious controversies.
That judgment the Commission has reserved for itself.
The Cocmission recognizes the participants' concern that the summary and identification of issues should fairly represent the record.
The Commission believes that the opportunity for participants to comment on the working group's report provides adequate assurance that any significant inaccuracies or b[ases, whate/er their source, will not go unremarked.
Accordingly, the Conmission is not persuaded that the working group's use of outside con-sultants poses a threat to the fairness of this proceeding. The Commission therefore denies motions to the effect that consulting contracts should be wi thd rawn.
It is so ORDERED.
For the Commission l
SAMUEL J. CiilLK l
Secretary of the Commission i
Dated at Washington, DC, this day of December,1980.