ML19345H082
| ML19345H082 | |
| Person / Time | |
|---|---|
| Issue date: | 04/20/1981 |
| From: | Rosenthal A NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | Ahearne J NRC COMMISSION (OCM) |
| Shared Package | |
| ML19240C249 | List: |
| References | |
| REF-10CFR9.7 NUDOCS 8104300434 | |
| Download: ML19345H082 (8) | |
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.g UNITED STATES e
g NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSIMG APPEAL PANEL
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April 20, 1981 I
MEMORANDUM FOR:. Commissioner Aher.rne FROM:
Alan S. Rosenthal, Chairman V p Atomic Safety $and Licensing Appeal Panel
SUBJECT:
ROLE OF THE h*RC EEARING PROCESS This is in respo. e 'to your April 1,19 81 memorandum in which you sought, the vi of the Appeal Panel on two questions:
(1) what role is fulfilled b:.- the NRC hearing process; and (2) why should there be a retention of the present authority of adjudicatory boards to raise new issues sua sconte in operating license proceedings. 1/
I furnisnec copies of that memorandum to the merbers and senior professional staff of the p
Panel.
Several of them supplied comments on one or both ques-tions.
Those of Dr. Buck and Mr. Cho are contained in memo-randa 2 / which are attached hereto; and the others have been taken7nto account in the discussion which follows.
A.
Although under no constitutional mandate to do so, Congress elected to make provision in the Atomic anergy Act for public hearings on, inter alia, applications for-permits to construct or licenses to operate cornercial nuclear power facilities.
Section 189a. of that Act, 42 U.S.C. 2239 (a),
makes such a hearing obligatory; in the case of a construction permit application and confers participatory rights therein to persons "whose interest may be affected by the proceeding".
For its part, a hearing on the operating license level is re-l quired by Section 189a. only in circumstances where so requested by an interested person.
1/
At the time of my receipt of the memorandum, three merbers of the Panel (including myself) were about to depart for the Seabrook seismic remand hearing in New Hampshire.
It is for that reason that the response was not more prompt.
1/
Dated April 13 and April 10, 1981, respectively.
9-no.a s o o pf,
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Commissioner Ahcarna' 2-4 i
The adjudicatory boards are, of course, the primary desig-nated instruments for carrying out the legislative directive respecting public hearings.
They operate within the framework cf the regulations rromulgated bv the Commission in implemer.ta-tion of a variety of statutory commands.
As applied to con-r struction permit proceedings, those regulations vest the boards with responsibilities going well beyond simply the adjudication of the issues, if any, which may have been placed in controversy by a party to the proceeding.
See 10 CFR 2.104 (b), dealing with the safety and environmental determinations which the board is obliged to make. 3/
In an operating license proceeding, the j
board is to confine itself to 'tle matters place d in controversy l
by a party, subject to the discretionary authority to raise sua sconte additional " serious" safety, environmental, or co= mon defense and security matters.
See Section 2.104 (c).
3.
As Mr. Cho's attached memorandum observes, the adjudi-catory boards come into the picture at a very late point in the overall review process.. By the time that the construction permit i
or operating license application reaches the hearing stage, the safety and environmental aspects of the proposed plant will have the ae. licant and the NRC technical been extensivelv exarined bv c
staff.
Additionally, the safety aspects will have had ACES scru In these ci' cumstances, the likelihood that the hearing tiny.
r process will bring to the surface a previcusly undetected signif-icant safety problem or environmental concern is not appreciable.
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This consideration has led some to suggest that the adjudicatory function performed by the boards contributes little, if anything, i
to either safety enhancement er the preservation of envircnmental values; viz., that the hearings serve no other real purpose than te give members of the public the opportunity to ventilate their j
concerns respecting the proposed reactor (concerns, so this line of reasoning goes, which are usually without genuine basis).
__3/
Section 2.104 (b) (2) provides that, if the construction.
cermit croceeding is no a contestec. one (i.e.,
s ceang conducted in the absence of a successful petition for leave to intervene), the board is not to conduct a de novo evaluation of the application.
Rather, it is Eo l
decide the adecuacy of the staff's safety and environmen-3 tal review of the application.
Whether the proceeding l
is contested or not, however, the board is to determine co=pliance with the provisions of the National Environ-mental Policy Act, as well as to strike the ultimate NIPA balance.
Section 2.104 (b) (3).
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Commissioner Ahaarna -
Given the obvious desirability of engendering public con-ficence in the thoroughness and objectivity of the regulation of nuclear power reactors, the time', effort anc expense involved in the hearing process could be justified even if one were to accept this thesis as to ius actual accomplishments.
It is nonetheless clear to us that the public hearings are much more than.an empty ritual designed to allay lif possible) the fears of alarmed, or at least skeptical, citizens.
While the end.re-sult of the adjudication is almost invariably a grant of the application in question, not infrequently the board will require, through the imposition of license conditions or otherwise, cer-tain modifications in the prop 6 sal before it which are intenced further to enhance safety or to protect the environment.
To be sure, there may not be universal agreement as to the warrant for or significance of each and every modification so ordered.
- Most, however, have gone~ unchallenged on that score.
But the hearin
.uroce as cannot be f airiv ju.dc.ed solelv, or u
even principally, on the basis of the number and character of the license conditions which may be i= posed by the adjudicatory boards.
Althcugh of ten uncredited if not overlooked entirely, the hearing process serves an enormously valuable auditing func-tion.
In conducting their safety and environmental analyses, i
.the applicant and the NRC staff are necessarily aware that those analyses will be subject to critical scrutiny by an independent tribunal in a public setting -- at the construction permit stage as a matter of certainty; at the operating license stage as a matter of possibility.
The knowledge that they may be called upon to explain and justify under a public spoulight their methodology and conclusions assuredly provides an additional incentive to them to turn out a quality product.
In this con-nection, although the Commission itsel_ is the ultimate overseer of staff perfor=ance, it is obviously impossible for the Commis-sioners to monitor closely staff reviews on a case-by-case basis.
In large measure, applicant and staff reviews (both saf ety and environmental) have passed muster when put to the test in'a hearing.
On occasion, however, they have not (Ls exemplified by certain alternate site comparisons which were found by boards to be deficient).
Beyond that, from time-to-time boards have
. discerned what has appeared to be a general approach to a par-ticular problem which was not wholly consistent with the further-ance of safety goals.
The Midland construction permit proceed-ing some years ago, for ~ exa=ple, brought to the fore a patently inadequate appreciation on the part of both the utility and the staff respecting the importance of quality assurance and what is required to accomplish it.
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m
Commissionar Ahcarna -
None of the above is intended to imply that the acjudica-tory boarcs are er could be guarantors of safety and environ-mental protection.
Manifestly, the.' hearing process coes not allow for any such guarantee.
The boards have neither the /
assigned duty nor the available resources to e= bark upon an independent examination of every safe"/ and environmental as-pect of reactor construction anc oper cion.
To the contrary, they =ust reach their decisions on the basis of khat is placed into an adjudicatory record by the pn:. ties.
If what is before it suggests the existence of a serious safety or environmental issue.not specifically raised pr addressed by a party, the board is e= powered by the present rules to inquire into that issue on its own initiative.
But even in such circumstances, the outcome of the inquiry will hinge upon what is then pro-vided the board on the record.
And, neecless to say, many po-tential problems will simply not come to the attention of the board at all.
Thus, in the final. analysis, the safety and en-
'rironmental acceptability of a particular reactor depends upon
-he centribution of every link in the regulatory chain.
The acjudicatory boards are but one such link -- even though, we would submit, an important one.
C.
It is with the feregoing considerations in mind that the present' authority of the adjudicatory boards to raise new
" serious" issues sua sponte in operating license proceedings should be appraised._4_/
As I understand it, the principal pragmatic objections to that authority are (1) that it has been promiscuously employed; (2) that, when'invokec, it consures inordinate amounts of staff 4/
Much has been made by at least one industry spokesman
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of the November 1979 amendment of 10 CFR 2.760a and 2.785 (b) (2).
Prior to that amendment, those Sections authorizec 3. censing anc appea_, coarcs to exercise l
their sua sponte authority "chly. in exceptional circum-stances" and went on to direct that the " authority is to be used sparingly".
The snend=ent deleted that re-strictive language.
In the accompanying statement of consideratiods, however, the Co==ission stated that the "amendec rules elirl= ate an apparent constraint on boards as well as more accurately reflect current NRC aijudicatory board practice".
44 Fed. Reg. 67088 TNovember 23, 1979) (emphasis supplied).
And it does not appear that there has been a significantly greater resoru to the sua sponte authority since 1979 in reli-ance upon the amendment.
Both before and after the amendment, the boards have invoked that authority if and when, in their judgment, a " serious" safety or environ-mental issue existed.
(The requirement that the issue be a " serious" one had been contained'in the pre-1979 l
version and was retained.)
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' Cor=issioner Ahearna.
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time whi'ch could be better devoted to other pursuits, and (3)-its use has produced no substantial contribution to safety.
Of the three, it seems to me that only the last might, if valid, pr, ovide a sufficient reason for eliminating or significantly curtailing the authority.
'As to the first, I am personally unaware of any clear-cut abuses by boards, of their sua sponte authority (although reason-able minds might well differ as to the degree of seriousness of any particular board-raised issue).
Be that as it may, I am quite' confident that there are;means of controlling any real abuse problem that may exist without~ eliminating or gutting the sua sponte' authority.
As to the second objection, on April 13 the Executive Legal Director furnished the Commission with 'a memorandum listing the cases in which (since 1975) adjudicatory boards (licensing or ap-peal) have raised new issues on their own initiative.
The memo-randum went on to estimate, inter alia, the time spent by NRR and E* D staff s in responding to those issues.
With due respect to the persons responsible for those estimates, I must note that, on their face, several of them seen grossly inflated -- possibly by as much as an order of magnitude.
Fcr example, it is most diffi-3 cult to credit the estimate that 600 professional staf f hours (i.e.,
a total of 15 full weeks) were required to deal with two exceptionally narrow and uncomplicated questions raised by the Diablo Canyon Appeal Board which is considering the adequacy of tne applicant's security plan.
I might add that the members of that Board were very surprised when their attention was called by me to that estimate.
Based upon their intimate knowlecge of both the scope of the two questions which they had posed and the nature anc extent of the staff's eventual presentation on them, they are unable to comprehend why or how more than a total of 60 hours6.944444e-4 days <br />0.0167 hours <br />9.920635e-5 weeks <br />2.283e-5 months <br /> of technical and lawyer time was expended._5/
Notwithst.. ding these misgivings, I am prepared to accept the proposition that, depending upon its nature and scope, the i
crecaration and presentation cf the staff's resconse to a board-
' aised issue may require the expenditure of cansiderable effort.
r But the same is to be said with regard to the fulfillment of the 1
5/
It is my understanding that the IID is in the process of revising some of the estimates contained in his April 13 i
memorandum.
I have been told, however, that the 600-hour estimate for the Diablo Canyon Board-raised security plan issues will be but modestly reduced (to 540 hours0.00625 days <br />0.15 hours <br />8.928571e-4 weeks <br />2.0547e-4 months <br />).
Cor:dssioner Ahcarna 6-staff's' obligation to develop and present its position on those issues raised b.v the earties to the, operating license eroceed-ine. -- issues which very well mav be of much less sie.nificance in terms of safety or environmental protection, It seems to' me that the ultimate question is not whether adjudication is time-consuming for all concerned; for most issues at least, it =Ani-festly is.
Ra th er, the focus should be on whethpr the time is wor n spenc..ang.
Thus, I come to the third, and crucial, objection.
It would, of course, be fatuous tp assert that every sua sponte exploration produces a safety er environmental improvemenu cormensurate with the time or resources utilized in making the exploration.
But once again, I do not believe that the worth of inquirine. into a earticular issue (whether raised b.v a.carty.
cr by the board sua sponte) is to be measured either exclusively or primarily in terms of whether the end result is some altera-tion in the proposal under review.
To the contrary, a sua sponte inquiry should be thought to make a sufficient contribu-
- 1on to the fulfillment of this agenc.v'r weic.htv. statutor.v re-sponsibilities even if it coes no more than enable the Board to satisfy itself -- before giving approval to the issuance of an coeratinc. license -- that a cerceived notentiallv. serious safetv_
'er enviren= ental problem has received adequate applicant and staff attentien and has been dealt with satisfactorily.
The implications of stripping the boarcs of their current sua sp:nte anuhority are brought into particularly sharp focus bv a consideration cf the securitv clan chase of the Diablo
-Canyon operating license proceec.a.-ng.
c.s earla.er mentionec, in that proceeding the Appeal Board raised sua sponte two issras bearing upon the acequacy of the Diablo Canyon security plan which had not s.oecificall.v been placed into controversy b.v the parties to the proceeding themselves.
Although narrow in scope, those issues were critical to in overall assessment of the ade-c.uae.v of the =lan (indeede as I understand ito thev went to l
whether the plan con:ormec to outstanding Commission regula-tions).
Surely, it cannot be seriously maintained that the public interest in insuring a secure (and thus safe) facility would have been furthered had the Appeal Board simply ignored
.the possible deficiencies in the plan.
Further, how could the Scard'me=bers have been fa rly called upon to pass judgment on the adequacy of the plan and, at the same time, ceprived of the right to consider all aspects of it having a bearing upon that adec.uaev?
On this score what is involved is not merely the o
integrity of the outcome of the adjudicatory process buu, as well, the Board me=bers ' sense of personal professional respon-sibility as principal participants in that process.
m s
Commissioner hhearne
. As'Mr. Shapar noted at a recent Commission meeting, even if it were precluded from injecting a new issue into an operatin.g 31 cense proceecing, a board wou.3 c. retain t.ne rign to ring.its s
concerns to the staff's attention for the latter's considera-tion. 6 /
We recard that alternative as entirelv unsatisf actorv.
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Among other things, the board's concern may bring into cuestion some prior action, inaction or determination on khe part of the staff.
In such. circumstances, there would be no reason for a high degree of confidence that the staff would take the same fresh and penetrating look at the issue as might be expected of independent adjudicators not put in the awkwarc position of hav-ine. to reexamine (and.possibiv overturn) previously formulated conclusions.
Insofar as the public is. concerned, that confidence woulc likely be total lacking.
While the hearing process may not enjov universal respect, ric.h tiv. or wrene.lv. it is c.enerallv thought to produce more trustworthy decisions than are made in non-adjudicatory contexts.
If nothing else, an adjudicatory board must both act upon the basis of a formal record and assign reasons for the conclusions it reaches.
.The staff is not so obligated.
For the forecoine reasons, the A eal Panel urces the re-tention Of O.ne EC uC1Catorv boarc. ' s. exis tinC. autneri V to raise
)
'
- serious"' issues on their own iniriative in operating license proceedings.
It has. no objection, however, to the instituticn of safeguards against the abuse of that authority (assuming that abuse is deemed to be a real or potential problen).
Al-
- t. cuc.h we de not advocate.ts ado. tion one such sa.eguarc o
might be a requirment that the board first obtain Cornission approval to raise and pursue t.ne new issue or issues.
Un.less, however, the Commission were able to act t.remetiv uoon rec.uests 6/
Mr. Shapar also suggested that, before moving forward itself on the new issue, the board might be required to bring it to the attention of the Commission (which could I
then decide whether it wanted the board to pursue the matter).
This alternative is addressed later in this memorandum.
1 1
i m
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Commissionar Ahcarno,
for suc'h approval, the result of a recuirement along that line might be undesirable delays in the. completion of the proceed-in g._7_/
Attachments:
1.
4/15/81 memorandum (Dr. Buck) 2.
4/10/81 memorandum (Mr. Cho) ces w/ attachments:
Chairman Hendrie
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Cor:dssioner C-ilinsky Co==issioner Bradford 3.
P.
Cotter, ASL3P L. Bickwit, OGC H. K. Shapar, ELD S.
Chilk, SECY<
~.~e
>4
__7/
This memorandum is not addressed to any extent to the other sua sponte authority routinely exercised by appeal boards; 1.e.,
the authority to review those portions of a 1 censing coar-
'-'-a, cec s on ( anc. t.ne recore uncer_,ying it) w. ten n
have not been challenged on any appeal which may have been taken from that decision.
As I understand it, that quite i
distinct sui sponte authority is not under Nrrent Co= mis-sion reevaluation.
I mention the point oniv _' :ause the 1
ELD's Acril 13 memorandum includes a reference to the cumo-house s'ettlement aspect of the North Anna operating licen'se l
proceeding.
The Appeal Board did not, however, raise that issue ab ir.itio.
Rather, it was first addressed bv the i
Appeal Board consideration of it was in l
Licensing Board.
the context of a sua sponte review of the Licensing Board's
-initial decision (which was not appealed).
See ALA3-491, 8 NRC 245, 247'(1978).
In contrast, the still-pending turbine missile issue was raised by the Appeal Board under the sua sponte authority now under consideration (i.e.,
that issue had not been considered by the Licensing Board at all).
I d,., at pp. 247-50.
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