Order CLI-82-10,declining Review of ALAB-663.Time within Which Commission May Act to Review Expired.Decision Became Final Agency Action on 820514.Separate Views of Commissioners Palladino,Ahearne,Roberts & Gilinsky EnclML20054H291 |
Person / Time |
---|
Site: |
Summer |
---|
Issue date: |
06/22/1982 |
---|
From: |
Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
---|
To: |
|
---|
References |
---|
ALAB-663, CLI-82-10, ISSUANCES-OL, NUDOCS 8206230204 |
Download: ML20054H291 (11) |
|
|
---|
Category:LEGAL TRANSCRIPTS & ORDERS & PLEADINGS
MONTHYEARRC-99-0172, Comment Opposing Proposed Rule 10CFR50 Re Consideration of Potassium Iodide in Ep.Stockpile of Ki Not Effective as Immediate & Suppl Measure of Protection1999-08-24024 August 1999 Comment Opposing Proposed Rule 10CFR50 Re Consideration of Potassium Iodide in Ep.Stockpile of Ki Not Effective as Immediate & Suppl Measure of Protection ML20207E4181999-05-17017 May 1999 Comment Supporting Recommended Improvements to Oversight Processes for Nuclear Power Reactors Noted in SECY-99-007A ML20206G3351999-05-0303 May 1999 Comment on Proposed Rules 10CFR170 & 171 Re Proposed Revs to Fee schedules;100% Fee recovery,FY99.Util Fully Endorses Comments Prepared & Submitted on Behalf of Commercial Nuclear Power Industry by NEI & Submits Addl Comments RC-99-0088, Comment on Draft RG DG-1083 Re Content of UFSAR IAW 10CFR50.71(e).Believes That Inclusion of Statement in DG, Unnecessary1999-04-28028 April 1999 Comment on Draft RG DG-1083 Re Content of UFSAR IAW 10CFR50.71(e).Believes That Inclusion of Statement in DG, Unnecessary RC-99-0060, Comment on Proposed Rule PRM 50-64 Re Joint & Several Liability of non-operating co-owners of Nuclear Plants.Sce&G Endorses Comments Submitted by Winston & Strawn & NEI1999-03-22022 March 1999 Comment on Proposed Rule PRM 50-64 Re Joint & Several Liability of non-operating co-owners of Nuclear Plants.Sce&G Endorses Comments Submitted by Winston & Strawn & NEI RC-98-0230, Comment Opposing Proposed Rule 10CFR50,52 & 72 Re Changes, Tests & Experiments1998-12-21021 December 1998 Comment Opposing Proposed Rule 10CFR50,52 & 72 Re Changes, Tests & Experiments RC-98-0224, Comment on Proposed Rule 10CFR50.65 Re Requirements for Monitoring Effectiveness of Maint at Npps.Encourages NRC to Continue Cooperative Effort with NEI & Nuclear Industry to Focus on Risk Significant Issues1998-12-14014 December 1998 Comment on Proposed Rule 10CFR50.65 Re Requirements for Monitoring Effectiveness of Maint at Npps.Encourages NRC to Continue Cooperative Effort with NEI & Nuclear Industry to Focus on Risk Significant Issues RC-98-0181, Comment Supporting Comments Submitted by NEI Re NRC Proposed Integrated Review of Assessment Process for Commercial NPPs (Irap)1998-10-0606 October 1998 Comment Supporting Comments Submitted by NEI Re NRC Proposed Integrated Review of Assessment Process for Commercial NPPs (Irap) RC-98-0176, Comment on Draft Reg Guide DG-8022, Acceptable Programs for Respiratory Protection1998-09-28028 September 1998 Comment on Draft Reg Guide DG-8022, Acceptable Programs for Respiratory Protection RC-98-0169, Comment on Proposed Rule 10CFR50 Re Reporting Requirements for Nuclear Power Reactors.Proposed Improvements to Current Reporting Requirements Would Have Significant & Positive Impact on Regulatory Burden to VC Summer Nuclear Station1998-09-18018 September 1998 Comment on Proposed Rule 10CFR50 Re Reporting Requirements for Nuclear Power Reactors.Proposed Improvements to Current Reporting Requirements Would Have Significant & Positive Impact on Regulatory Burden to VC Summer Nuclear Station RC-98-0165, Comment on Draft NUREG-1633, Assessment of Use of Potassium Iodide (Ki) as Protective Action During Severe Reactor Accidents. Where Evacuations Are Performed,Ki Would Not Add Any Measures of Safety to Approach & Could Complicate Er1998-09-14014 September 1998 Comment on Draft NUREG-1633, Assessment of Use of Potassium Iodide (Ki) as Protective Action During Severe Reactor Accidents. Where Evacuations Are Performed,Ki Would Not Add Any Measures of Safety to Approach & Could Complicate Er RC-98-0022, Comment Opposing Proposed GL 98-XX, Yr 2000 Readiness of Computer Sys at Npps1998-02-0202 February 1998 Comment Opposing Proposed GL 98-XX, Yr 2000 Readiness of Computer Sys at Npps RC-97-0279, Comment Opposing Draft RG DG-1070, Sampling Plans Used for Dedicating Simple Metallic Commercial Grade Items for Use in Npps1997-12-0808 December 1997 Comment Opposing Draft RG DG-1070, Sampling Plans Used for Dedicating Simple Metallic Commercial Grade Items for Use in Npps RC-97-0243, Comment on Proposed Rule 10CFR50 Re Rule Change to Incorporate IEEE 603 Standard1997-11-26026 November 1997 Comment on Proposed Rule 10CFR50 Re Rule Change to Incorporate IEEE 603 Standard RC-97-0219, Comment Opposing Proposed Rule 10CFR55 Re Initial Operator Exam Requirements1997-10-24024 October 1997 Comment Opposing Proposed Rule 10CFR55 Re Initial Operator Exam Requirements RC-97-0134, Comment Supporting NUREG-1606, Proposed Regulatory Guidance Related to Implementation of 10CFR50.59 (Changes, Tests or Experiments)1997-07-0707 July 1997 Comment Supporting NUREG-1606, Proposed Regulatory Guidance Related to Implementation of 10CFR50.59 (Changes, Tests or Experiments) ML20148N0861997-06-19019 June 1997 Comment Opposing NRC Draft Suppl 1 to Bulletin 96-001 Which Proposes Actions to Be Taken by Licensees of W & B&W Designed Plants to Ensure Continued Operability of CR RC-97-0096, Comment Discussing Proposed Rule 10CFR73 Re Changes to Nuclear Power Plant Security Requirements1997-05-0202 May 1997 Comment Discussing Proposed Rule 10CFR73 Re Changes to Nuclear Power Plant Security Requirements RC-97-0055, Comment Opposing Proposed GL on Loss of Reactor Coolant Inventory & Associated Potential for Loss of Emergency Mitigation Functions While in Shuddown Condition1997-03-12012 March 1997 Comment Opposing Proposed GL on Loss of Reactor Coolant Inventory & Associated Potential for Loss of Emergency Mitigation Functions While in Shuddown Condition ML20136H9531997-03-0505 March 1997 Comment Opposing Draft Regulatory Guide 1068, Medical Evaluation of Licensed Personnel at Nuclear Power Plants RC-97-0024, Comment on Proposed Generic Communication, Effectiveness of Ultrasonic Testing Sys in Inservice Inspection Programs. GL Seems to Approach Mandating Implementation of App Viii Requirements1997-02-25025 February 1997 Comment on Proposed Generic Communication, Effectiveness of Ultrasonic Testing Sys in Inservice Inspection Programs. GL Seems to Approach Mandating Implementation of App Viii Requirements ML20135C4911997-02-17017 February 1997 Comment on NRC Draft NUREG 1560, IPE Program:Perspectives on Reactor Safety & Plant Performance;Vols 1 & 2. Comment Provided to Enhance Accuracy of Nureg,Per Request ML20113C1881996-06-24024 June 1996 Comments on Proposed Rule 10CFR50 Re Financial Assurance Requirements for Decommissioning Nuclear Power Reactors RC-96-0154, Comment on DRG,DG-5007,re Proposed Rev 3 to RG 5.441996-06-17017 June 1996 Comment on DRG,DG-5007,re Proposed Rev 3 to RG 5.44 ML20096F1991996-01-15015 January 1996 Comment Opposing Petition for Rulemaking PRM-50-63 Re Use of Ki as Insurance Against Nuclear Accidents RC-95-0236, Comment Opposing Draft RG DG-1043,Proposed Rev 2 to RG 1.49, NPP Simulation Facilities for Use in Operator Exams1995-09-13013 September 1995 Comment Opposing Draft RG DG-1043,Proposed Rev 2 to RG 1.49, NPP Simulation Facilities for Use in Operator Exams RC-95-0178, Comment on Proposed Review of NRC Insp Rept Content,Format & Style1995-06-28028 June 1995 Comment on Proposed Review of NRC Insp Rept Content,Format & Style ML20086A8611995-06-13013 June 1995 Comment Supporting Proposed Rule 10CFR73 Re Changes to NPP Security Requirements Associated W/Containment Access Control ML20083N4761995-04-26026 April 1995 Comment Re Proposed GL Concerning Pressure Locking & Thermal Binding of SR Power Operated Gate Valves.Believes That Full Backfit Analysis Should Be Performed to Enable Utils to Perform cost-benefit Analysis to Be Utilized RC-95-0009, Comment Supporting Proposed Rule 10CFR21 Re inter-utility Transfer1995-01-0909 January 1995 Comment Supporting Proposed Rule 10CFR21 Re inter-utility Transfer ML20077M7131995-01-0303 January 1995 Comment Opposing Proposed Rule 10CFR50 Re Shutdown & Low Power Operations.Believes That Pr Totally Unnecessary & Represents Addl Regulatory Burden Not Fully Cost Justified RC-94-0292, Comment Supporting Proposed Rule 10CFR20 Re Frequency of Medical Exams for Use of Respiratory Protection Equipment. Util Agrees That Frequency of Medical Exams Should Be Determined by Physician1994-11-11011 November 1994 Comment Supporting Proposed Rule 10CFR20 Re Frequency of Medical Exams for Use of Respiratory Protection Equipment. Util Agrees That Frequency of Medical Exams Should Be Determined by Physician ML20072B1771994-07-29029 July 1994 Comment Opposing Petition for Rulemaking PRM-9-2 to Change Rules Re Public Access to Info,Per 10CFR9 ML20071H4111994-07-0606 July 1994 Comment Supporting Petition for Rulemaking PRM-50-59 Re Change to Frequency of Independent Reviews & Audits of Safeguards Contingency Plan & Security Program ML20071H1091994-06-22022 June 1994 Comment Supporting PRM 50-60 Re Proposed Changes to Frequency W/Which Licensee Conducts Independent Reviews of EP Program from Annually to Biennially RC-94-0107, Comment Supporting Proposed Rule Change to 10CFR50.55 That Would Include Containment Requirements in Inservice Insp Programs1994-04-21021 April 1994 Comment Supporting Proposed Rule Change to 10CFR50.55 That Would Include Containment Requirements in Inservice Insp Programs RC-94-0057, Comment Supporting NUREG-1488, Revised Livermore Seismic Hazard Estimates for 69 NPP Sites East of Rocky Mountains1994-02-28028 February 1994 Comment Supporting NUREG-1488, Revised Livermore Seismic Hazard Estimates for 69 NPP Sites East of Rocky Mountains RC-93-0314, Comment Supporting NUMARC Position on Proposed Rule 10CFR73 Re Protection Against Malevolent Use of Vehicles at Nuclear Power Plants1993-12-28028 December 1993 Comment Supporting NUMARC Position on Proposed Rule 10CFR73 Re Protection Against Malevolent Use of Vehicles at Nuclear Power Plants ML20046D5271993-07-30030 July 1993 Comment Supporting Proposed Rule 10CFR55 Re Proposed Amend to 10CFR55 ML20045G8541993-06-22022 June 1993 Comment on Proposed Rules 10CFR170 & 171, FY91 & 92 Proposed Rule Implementing Us Court of Appeals Decision & Rev of Fee Schedules;100% Fee Recovery,FY93. Provides Recommendations RC-93-0127, Comment Concurring W/Numarc Comments on Draft NRC Insp Procedure 38703, Commercial Grade Procurement Insp1993-05-21021 May 1993 Comment Concurring W/Numarc Comments on Draft NRC Insp Procedure 38703, Commercial Grade Procurement Insp ML20118B8431992-09-29029 September 1992 Comments on Review of Reactor Licensee Reporting Requirements ML20095L2681992-04-27027 April 1992 Comments on NUREG-1449, Shutdown & Low Power Operation at Commercial Nuclear Power Plants in Us. Endorses NUMARC Comments ML20096A4541992-04-27027 April 1992 Comment Endorsing Comments Made by NUMARC Re Proposed Rule Misc (92-1), Conversion to Metric Sys. Concurs W/Nrc Position That Staff Will Not Allow Licensees to Convert Sys of Units Where Conversion Might Be Detrimental to Health ML20096D4661992-04-27027 April 1992 Comments Supporting Proposed Rule Re Conversion to Metric Sys ML20079E0981991-09-20020 September 1991 Submits Comments on NRC Proposed Resolution of Generic Issue 23, Reactor Coolant Pump Seal Failure, & Draft Reg Guide DG-1008 ML20073B2021991-04-15015 April 1991 Comment Supporting Proposed Rule 10CFR50.55a Endorsing Later Addenda & Editions of ASME Code Sections III & XI W/Noted Exceptions.Util Also Endorses Comments Submitted by NUMARC ML20070D9091991-02-21021 February 1991 Comment Opposing Petition for Rulemaking PRM-73-9 Re Rev to 10CFR73.1.Util Disagrees W/Petitioners Contention That Purported Increased Terrorist Threats Necessitate Need to Revise Design Basis Threat for Radiological Sabotage ML20024G0211990-12-0303 December 1990 Comments on Proposed Rule 10CFR50 Re Emergency Response Data Sys (Erds).Nrc Intends to Make ERDS Info Available to State Govts ML20058G5721990-10-24024 October 1990 Comment Opposing Proposed Rule 10CFR26 Re Fitness for Duty Programs 1999-08-24
[Table view] Category:ORDERS
MONTHYEARML20058G2821982-08-0202 August 1982 Memorandum & Order Denying Fairfield United Action 820409 Petition to Intervene & Request for Hearing & B Bursey 820414 Motion for Admission of New Contentions.Different Result Would Not Be Reached by Considering Petition Matl ML20058E4651982-07-27027 July 1982 Memorandum & Order Granting Applicant Motion for Extension of Time Until 820820 or to When Remaining Exceptions Due, to File Exceptions to ASLB 820720 Partial Initial Decision LBP-82-55.Time for All Parties to File Extended CLI-82-10, Order CLI-82-10,declining Review of ALAB-663.Time within Which Commission May Act to Review Expired.Decision Became Final Agency Action on 820514.Separate Views of Commissioners Palladino,Ahearne,Roberts & Gilinsky Encl1982-06-22022 June 1982 Order CLI-82-10,declining Review of ALAB-663.Time within Which Commission May Act to Review Expired.Decision Became Final Agency Action on 820514.Separate Views of Commissioners Palladino,Ahearne,Roberts & Gilinsky Encl ML20004D2681981-06-0202 June 1981 Order Rescheduling 810713 Rate Cause Hearing for 810727 So as Not to Interfere W/Aslb Hearing on Summer Nuclear Plant. Affidavit,Tf Hartnett 810422 Ltr to M Lowe & Certificate of Svc Encl ML19345H3621981-05-0808 May 1981 Order Scheduling 810713 Hearing in Columbia,Sc.Testimony & Exhibits Are to Be Filed by 810706.Conference Scheduled for 810710 in Columbia,Sc ML19340E1121980-06-30030 June 1980 Order by Public Svc Commission of Sc Approving Util Request for Adjustments in Electric Rates & Charges ML20062D2141978-11-0707 November 1978 Rev Order of 780424,establishing Sched for Prehearing Actions Re Subj Facils.Motions for Summary Dispositions May Be Filed Until 45 Days Before Hearing.Answers Opposing Motions May Be Filed W/In 20 Days of Svc of Motion ML20062D1771978-11-0707 November 1978 ASLB Dissolves Protective Order Covering R Hinton'S Deposition of 780802 ML20062C2701978-10-31031 October 1978 Requests Parties to Advise Chairman,Aslb,Concerning Any Info Re Current Present Employment & Address of Witness 4,who Was Deposed in Camera Depositions of 780802.Info Needed Re Necessity for Protective Order ML20062J7631978-04-24024 April 1978 Order Admitting Contentions.Discovery Shall Commence on 780505 & Be Completed on 780915.Motions for Summary Disposition Must Be Served on 781003 & Answered by 781013. Motions Re Order Must Be Served on 780502 1982-08-02
[Table view] |
Text
,
w UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
Nunzio J. Palladino, Chairman Victor Gilinsky John F. Ahearne Thomas M. Roberts SEVED Jg3331982
)
In the Matter of )
)
SOUTH CAROLINA ELECTRIC AND GAS ) Docket No. 50-3950L COMPANY, ET AL. )
)
(Virgil C. Summer Nuclear Station, Unit 1))
)
ORDER (CLI-82-lD)
The Commission by a vote of 3-1, with Commissioner Gilinsky disapproving, has declined to review the Appeal Board decision ('ALAB-663) in this docket. The time provided by NRC regulations within which the Commission may act to review has expired. Accordingly, the decision became final agency action on May 14, 1982. The separate views of individual Commissioners follow.
It is so ORDERED.
49M4 Fo'r the Commission f L c....
s >
e,, o 4- ; n .4,, g 3 , ' _~' C 'j g yje JdLC N
'l ~
- E i SAMUEL J. CHILK k,'fT[3Y Secretary of the Commission
+3,,<.'
Dated at Washington, D.C.
thisN day of June,1982.
n 8206230204 820622 PDR ADOCK 05000395
[c #
C PDR
SEPARATE VIEWS OF CHAIRMAN PALLADIN0 I strongly disagree with Commissioner Gilinsky's view that the standard prescribed by the Appeal Board in ALAB-663 "will serve only to hobble the Licensing Boards." That standard, which centers directly on the Board's ability to reach an " informed decision," can hardly be f airly charac-terized as intended "to hobble," in my opinion.
Furthermore, Commissioner Gilinsky ignores that the Boards were directed in ALAB-663 not to sacrifice anything of significance in the way of health and safety bases for their decisions. As the Appeal Board said:
"We certainly do not suggest that a licensing board should ignore deficiencies in the staff's analysis and testimony or play no role in the development of a complete record. The protection of the public health and safety is a paramount concern. Thus, as we have noted previously, it is a licensing board's right and obligation 'to satisfy itself that the conclusions expressed by expert witnesses on significant safety or environmental questions have a solid foundation.' Our point is simply that the adjudicatory boards should give the staff every opportunity to explain, correct, or supplement its testimony before resorting to outside experts of their own. Moreover, the boards' use of such consultants should be based on more than intuition and vague doubts about the reliability of the staff's presentation: the boards must articulate good reason to suspect the validity and completeness of the staff's work. That is what we meant in requiring a demonstra-tion 'beyond question that a board simply cannot otherwise reach an informed decision on the issue involved.'
"The Licensing Board stated that it did 'not see how that standard can ever be satisfied.' We, of course, disagree. If the staff is unable or unwilling to clarify its testimony on a significant safety issue and the other evidence of record is similarly unresponsive to a licensing board's articulated concerns, the board
2 is free under our standard to seek'outside testimony in an effort to resolve the matter. ... " ALAB-663, Slip Opinion at 31-32 (citations and footnote omitted).
Commissioner Gilinsky wants the Commission to review ALAB-663 because he disagrees with the Appeal Board standard. I believe that standard is consistent with Commission policy, and I do not disagree with it.
Therefore, I would not vote to review.
i r
I
{
i i
SEPARATE VIEWS OF COMMISSIONER AHEARNE Commissioner Gilkinsky obviously has a different view of the events than I do. And, of course, he is entitled to interpret them as he wishes. However, I would like it recorded that I believed the Licensing Board to be wrong. A reading of the transcripts of the Licensing Board's announcements that it was calling witnesses, the method of responding to the Appeal Board, and the procedures followed by the Licensing Board all evidence a belief that the Licensing Boards should conduct an independent technical review. Perhaps Commissioner Gilinsky believes they should. I do not--I believe they are to resolve issues in dispute, using first the resources of the parties. I believed the Appeal Board was placed in an unusual position and tried its best to maintain some rationality in the NRC licensing process.
Therefore, to at least indicate Commissioner Gilinsky's views are not shared by all Commissioners, please include these views with his.
2 SEPARATE VIEWS OF COMMISSIONER ROBERTS Commissioner Roberts concurs in the separate views of Commissioner Ahearne. Additionally, Commissioner Roberts notes that he wished to affirm summarily but was advised by General Counsel that briefs should be requested.
The NRC lawyers should not have taken this course. They had no legitimata interest in excluding these witnesses and, in any event, the case could have been decided more expeditiously if the Licensing Board had simply been allcwed to go forward. This legal maneuvering reinforces my view that the NRC staff should not be a formal party to licensing proceedings and that it should be limited to serving as an advisor to the Boards.
The NRC adjudicatory boards' handling of the case was no better. On August 10, 19G1, the Appeal Board ordered the Licensing Board to explain its reasons for calling its own witnesses. The Licensing Board responded on the same_ day.
On August 25th, the Appeal Board said that interlocutory review might be warranted but delayed ruling on the staff's petition because it wanted to give the staff an opportunity to file supplemental testimony.
On August 27th, the Appeal Board published another memorandum in which it again declined to rule on the staff's petition. However, the Appeal Board discussed the issues at some length and stated that the Licensing Board should call independent witnesses only in "that most extraordinary situation in which it is demonstrated beyond question that a board simply cannot otherwise reach an informed decision on the issue invclved." From the discussicn, it is clear that
. the Appeal Board strongly doubted that this' standard could be met by the Licensing Board.
In the meantime, the experts selected by the Licensing Board prepared their reports, which the Licensing Board issued-to the parties during Septmeber, 1981. However, the Board's experts were not yet called upon to testify before the Board. On October 2, the Appeal Board directed the Licensing Board not to call its independent consultants to the stand as witnesses until it had furnished the Appeal Board with a detailed statement of its reasons for doing so and until the Appeal Board had ruled on the staff's motion for directed certification.
On October 15, the Licensing Board issued an Order l
reaffirming its intention to call its experts to the stand as witnesses and explaining its reasons for doing so. On i
l October 19th, the Appeal Board denied the staff's motion for l-directed certification stating that, while it would be justified in taking interlocutory review of the merits of the seismic issue, it would refrain from doing so in order r to avoid further delav. On December 14, 1981, the Appeal l
l Board issued the memorandum which is presently before the Commission and in which the Appeal Board reiterates its position that a Licensing Board should call its own witnesses only in "that most extraordinary situation in
[ which it is demonstrated beyond cuestion that a board simply
4_
i cannot otherwise reach an informed decision on the issue l
involved."- The Licensing Board's experts finally took the i stand to testify during the week of January 11, 1982.
i Instead of playing cat and mouse, the Appeal Board should have either granted or denied the staff's petition for interlocutory review. With regard to the merits, the Appeal Board should have chosen a more liberal standard which would help the Licensing Boards in fulfilling their function. The I
standard it picked is, as a practical matter, almost impossible to meet and will serve only to hobble the l Licensing Boards.
1 4
The Licensing Board's actions may, in their own way, be as i
4 deficient as the Appeal Board's. The Chairman of the f Licensing Board Panel has informed the Commission that the Licensing Board's disregard for the Appeal Board's directives stemmed, in part, from the Licensing Board's fear that, without the testimony of its own witnesses, it would j not be able to rule in favor of issuing an operating license. The Licensing Board should have obeyed the Appeal Board directive, however misguided, and, if the record did not justify a decision favorable to the applicant -- who has the burden of proof -- the Licensing Board should have f
denied the operating license.
i I
4
Neither of this agency's adjudicatory _ bodies has been able to deal with this case in a straightforward fashion. The Boards have concentrated upon extraneous factors rather than upon their responsibility to ensure the health and safety of the public. Their contradictory efforts to guarantee the prompt licensing of this plant have warped the procedural rules which govern our proceedings.
Of course, the Boards have been getting their cues from the Commission itself. In the present instance, the General Counsel advised the Commission that it could take review or not take review, obtain the views of the parties or issue a decision without doing so, or that it could issue a letter
-- rather than an order -- stating that it did not endorse the Appeal Board's standard, or any other specific standard, and would not do so until the agency's lawyers and adjudicatory panels had had a chance to give the matter some more thought. Needless to say, the General Counsel recommended, and the Commission adopted, the latter course.
In effect, the Commission is saying that although the Appeal Board applied the wrong standard, its heart was in the right place.
The Commission would have done better to take review of the decision, hear the parties, and issue a decision setting forth the proper standard. Alternatively, if the Commission approved of the standard enunciated by the Appeal Board, in J
should have summarily affirmed. The course it chose leaves the Boards and litigants wondering about the presently applicable standard and fortifies the impression that the Cornission is incapable of deciding a case.
e
SEPARATE VIEWS OF COMMISSIONER GILINSKY The Commission should have taken' review of this Appeal Board
, decision. By setting up a new and nearly insurmountable threshold for when a Licensing Board may call its own witnesses, the Appeal Board has tried to limit the authority of the Licensing Boards and reduce their role to that of a blinkered referee. If the Commission wishes to thus constrain its Licensing Boards, it should say so itself, i
rather than by proxy.
This matter arose during the course of the Summer operating license hearing. The Licensing Board was uncomfortable with the " state-of-the-art modeling techniques" employed by the NRC staff and the applicant in their seismic analyses of the Summer site. During the week of July 6, 1981, the Licensing Board indicated that it wished to retain a number of experts in the seismic field, who would appear as its own witnesses, to help it understand these analyses.
4 The applicant did not oppose this proposal. However, the NRC lawyers, protecting the staff's bureaucratic interests, objected vociferously and demanded that the Appeal Board take interlocutory review of the case. This set in motion a chain of events that has resulted in a colossal waste of time and effort.
- . - . . - - . -. --