ML19345H084
| ML19345H084 | |
| Person / Time | |
|---|---|
| Issue date: | 04/15/1981 |
| From: | Buck J NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | Rosenthal A NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| Shared Package | |
| ML19240C249 | List: |
| References | |
| REF-10CFR9.7 NUDOCS 8104300438 | |
| Download: ML19345H084 (4) | |
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UNITED STATES
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NUCLEAR REGULATORY COMMISSION
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April 15, 1981 EMORANDUM FOR:
Alan S. Rosenthal Chairman, ASLAP
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i FROM:
. John E. Buck
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Vice Chairman, ASLAP 5 6 SU3 JECT:
COMMISSIONER h=.: ARNES APRbL 1 ICMORANDUM ON TE ROLE Of TE LICENSING 30ARDS This memorandum is in reply to your request of April 1, 1980, that members of this Panel individually give their ccm-ments on Cc=missioner Ahearne's request concerning our percep-tien of the role of the licensing boards in the NRC hearing process.
It is my fi m belief that the role of the licensing boards cannot be taken in isolation but must be considered in context with the role of the NRC itself.
I therefore deem it necessary to make scme remarks about the entire organization.
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The Acency Problems When the Atomic Energy Conmission was formed Congress de-clared in to be the policy of the United States that:
SECTION 1.
DECLAPJ. TION.
-- Atomic energy is capable of application for peaceful as well as military purposes.
It is therefore decl*:ed to be the policy of the United States that --
a.
the development, use, and control of l
atomic energy shall be directed so as to make the maximu:5 contribution to the gener-al welfare, subject at all times to the l
paramount objective 'of making the maximum contribution to the common defense and security; and b.
the development, use, and centrol of atomic energy shall be directed so as to l
promote verid peace, improve the general welfare,. increase the standard of living, and strengthen free cc= petition in pri-vate enterprise.
(Atomic Energy Act as Amended) 810.4300 $,
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c Alan S. Rosenthal 2-April 15, 1981 1
As successor to the Reculator.v duties of the Atomic Enerc,1*
Co==ission the NRC is still bound by this policy and by the statement in the Atc=ic Enere.v Act as amended which e.rovide? for the Atomic Safety and Licensing Boards.
Section 191a of that Act authorized the Co= mission to form licensing boards:
. to conduct such hearing's as the to= mission may direct and make such intermediate or final decisions as the Co= mission may authorize with respect to the granting, suspending, revoking or amending of any license or authorization under the provisions of this Act, any other
=rovision of law, or an.y reculation of the j
Cc==ission issued thereunder.
The commission may delecate to a board such other regulatory functions as the Commission deems appropriate.
Under this delegation the initial licensing boards were specifically instructed by the Commissien to use the hearing procedure to cetermine whether the. staff had properly reviewed the license application.
Each board was to satisfy itself that the health and safety of the public were reasonably pro-i
.tected.
.(Later this was expanded to include determination of environmental eff ects and cost-benefit balance).
This approach worked reasonably well as long as (1) the Cornission's review staff (currently called NRR) evaluated the application on the basis of the regulations, (2) intervenors i
had specific technical contentions to present and (3) the tech-nical board members were well prepared and active participants in the hearing.
However, starting several years ago, and acceler-atef bp TMI, the staff has been'less observant of regulations and more active in pushing its own ideas as to how eenipment should be designed, tested andsoperated.
There have been instances where the staff has admitted that it had not reviewed the appli-cant's methods of analyses and calculations but relied on its 'cnm i
calculations even though the answ'ers obtained were widely different.=
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This does not mean that the staff'should not perform independent analyses, but it mus: review and understand
.the applicant's approach and have good reason ft accepting or rejecting it.
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Alan S. Rosenthal
. April 15, 1981 Post TMI, the staff insisted on many changes in design, training and operation (e.c.,
centrol panel-human relations changes, additional control stations, more centrol by staff,-
specific licensing and operating changes).
Some of these
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changes were contrary to licensees' and vendors' suggestions and many were obviously not fully reviewed for saf ety partic-ularly with regard to the effects on other areasief the reactor systems.
This problem has been repeatedly pointed out by the ACRS.
s Under these conditions the licensing boards are often in the position of not knowing whether they are hearing a staff review of an applicant's preposal or an untested staff invention.
This is why a licensing board's role in the hearing process must be viewed in context of other Cc= mission philosophy and procedures.
In my opinion the initial use of licensing boards to provide a public audit of the sufficiency of the NRC staff review of the license application or amendment was a good approach.
However it must be done under clear Commission guidelines not only to the boards but to the entire Commission staff.
I haye two general comments both of which I have mentioned
.before:
A.
I believe that if the hearing process is to be viable the Co= mission must eff ectuate the fellowing policies and assure that the public is fully aware of the Commissien's philosophy:
(1)
The Congress has made the pclicy on the use of nuclear energy and therefore contentions con-cerning the acceptability and need for nuclear power are not to be considered; (2)
The Commission has a complete, understandable set of regulations and criteria, has control of l
its staff and makes that staff aware of its phi-losophy of regulation; (The Commission can claim none of these at the present time,.)
(3)
Each component of the C' mmission's staff (NRR, o
I&E, Standards, Research) has clearly defined functions and procedures; l
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Alan S.
Rosenthal
. April 15, 1981 (4)
The licensing boards actively and sincerel1 test the staff's review of an applicant's designs, manufacturing, construction, operation and qualitv assurance; (5)
The hearing process is aimed at obtaining technical answers to :.mportant safety gnd environ-mental problems and :*.s not an exercise in legal technicalities.
B.
I do not believe thalt the licensing board concept using two technical members can satisfactorily perform its function under the present adjudicatory format.
However, I
_d_o believe that use of an administrative procedure under which the boards do the questioning (but with written suggested questions from the parties) would allow the board to properly perform its technical audit.
This procedure would put a greater burden on the boards and require technical members who are able to suf ficiently prepare themselves en many subjects in order to ask intelligent questions.
In this respect I. note that the task fcree which I chaired on the use of part-time members suggested the use of technical interrogators by the boards.
I recognize
.that 'a change to an administrative type procedure would require congressi~nal action,.but I know of no ethar way to stop the o
present trend in the. licensing boards (and perhaps more so in the appeal boards) toward making a fetish of legal technicalities.
Sua Spente Review I believe that acceptance of sua sponte review by the boards should be allowed under carefully drawn Commission guide-lines.
It would be unconscionable to have a technical board ma-er forced to refrain from asking questions about a perceived major safety aspect of a reactpr.
Such opportunities must be available to board members if the public is to trust the pro-cedures.
I would be glad to discuss with you some possible guide-lines that might be useful to control.such sua sponte questions.
O e,
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