ML19345H085
| ML19345H085 | |
| Person / Time | |
|---|---|
| Issue date: | 04/10/1981 |
| From: | Cho 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 8104300440 | |
| Download: ML19345H085 (4) | |
Text
~~ ~
~ UNITED STITES O,
- 'e, O
a
- l; e.
g NUCLEAR REGULATORY COMMISSION E, %,, lic.i. 'g ATOMIC SAFETY AND LICENSING APPEAL PANEL E
5 W ASH} NCTC N. O.C. 20$55 April 10, 1981 TO:
Alan S. Rosenthal FROM:
,Jchn Cho SU3 JECT:
ROLE'OF ADJUDICATORY BOARDS IN TEI EEARING PROCESS Attached in response to your April 2, 19 81 :ne:no-randu:, is an outline of my views en the captioned subject.
ATTACE.ENT:
As. stated
)
e G
e a 4
e e
810.4300YYO ee e
v.
-r-.
,------,m-w
z
.t ROLE OF THE ADJUDICATORY BOARDS IN THE HEARING PROCESS
~
FOR THE LICENSING OF NUCLEAR P2. ACTORS A basic understanding of what adjudicatory boards do in the NRC hearing process for the licensing of nuclear reacters requires first, as Cc=missicner Ahearne's April 1, 1981 memorandum suggests, an understanding of the role of the hearing pr~ocess itself.
At the outset, it must be recognized that the hearings are required by the Atomic Energy'Act (for all cps and phen there are requests therefor for OLs).
This act and other laws such as the EPA and NEPA impose other requirements which must be met.
All of this means that the role of the hearing process, and concomitantly i
thau of the adjudicatery boards including the Commission it-self, is dictated to a large extent by the requirements of these laws.
With the feregoing understanding in mind, the following points outline my view of the rele of the NRC hearing process
~
and of the boards in that process:
1.
The purpose of the hearing process begins with the f
' premise that a reacter poses an enornous threat to the public health and safety unless it is properly designed, constructed and operated.
To assure the ultimate safety of reacters, the licensing process which has evolved under the relevant acts o
l (initially the Atomic Energy Act and the Administrative Procedure Act and later by the enactment of NEPA) incorporates a multiple review cencept', not unlike the def ense-in-depth con-cept traditienally utilized in the design of these plants.
In-plicit in this multiple review concept is the belief that mem-bers of the public, i.e.,
persons other than the applicant and government experts wnose jcb it is to review the project, offer
[
at uhe.very least a check on'the review ~perfermed by those l
responsible and may uncover safety problems which have escaped l
cr even passed review.
l 2.
Recognizing that the hearing is a fourth or even sub-sequent level review in the entire review process of the reactor project (following that made by the. applicant, staff and ACRS) it is not to be expected that the hearing process will uncover any major fundamental safety deficiency.
If it does, the others w
I>
r i
[
Y
v
.~
reviewing the project before the hearing takes place simply /
have not done their jobs.
By the same token, it is to h3 expected that few, if any, significant safety deficienc es.
will be uncovered during the process because the applicant's self-interest and the staff's and ACRS 's personal and pro-fessional integrity and reputation, and that of the insti-tut' ion they represent, is on the line.
It' pays all of them to do a good job.
3.
Opening the hearing to public participation acds in a sense another level of safhty review -- that by the public.
It must be recognized that whether any technical design, con-struction practice or operating procedure is safe ultimately is a question of judgment.
The public hearing affords the public an opportunity to participate in making that ultimate judgment and by doing so the hope is that the process will help to win public cenfidence in the actual safety of the reactor.
4.
The availability of judicial review adds a further check to the process, particularly on the performance of the decisionmakers (the licensing and appeal boards and the Com-3 mission itself).
The presence of possible review by the courts stands to make sure that the government officials do their' jobs within the framework of what is required of them by the applicable laws.
This means that the government agency -- here the NRC -- must not only assure that the reactor which is allowed to be constructed and operated meets the safety and cther requirements of law (such as those per-taining to the environment), but also that the decision to allow such construction and operation is f airly made insof ar as the rights of the public to participate in that process is concerned.
5.
Seen against the foiegoing background, it is the
. licensing and appeal boards' function to see that through l
the hearing process the review of the project theretofore made has properly provided fe.r the safeuy and other concerns (such as environmental, water quality, etc., which may be imposed by applicable laws) in accordance with the governing laws and policie's of the Commission.
Those laws include the Administrative Procedure Act which requires that any decisien reached be made "on the record" and imposes other procedural requirements designed to assure f airness to the participants in the process.
G e*
G
~;.
. 6.
The sua spente rule is an important part of the means by which the lacensing and appeal boards can ctrry out their fourth level review functic-i.
The rule permits the -
boards to act when they cbserve en their own gaps in the record er mistakes en impo.~. ant safety matters, or en other matters deemed to be important to ec=plia.ce with the re-cuirements of law.
As the Cc: mission-itself declared (with reference to NEPA) :
"The Commission and its Boards have an independent obligation to assure that the important policies of that Act have been protected.
Censolidated Edison Co. (Indian point Nuclear Ge$erating Station, Unit No. 3),
CLI-75-14, 2 NRC S35 (1975).
e l
l 0
l O
1 e
i
-. - -