ML20077L059

Approves Nj Palladino 830210 Response to V Gilinsky 830202 Memo Re Analysis of Gpu & B&W Transcripts

ML20077L059
Person / Time
Site:	Crane
Issue date:	02/14/1983
From:	Ahearne J NRC COMMISSION (OCM)
To:	NRC OFFICE OF THE SECRETARY (SECY)
Shared Package
ML20077K587	List: ML20077K992 ML20077K996 ML20077K999 ML20077L001 ML20077L004 ML20077L020 ML20077L024 ML20077L030 ML20077L036 ML20077L039 ML20077L042 ML20077L056 ML20077L059 ML20077L064 ML20077L070
References
NUDOCS 8308080192
Download: ML20077L059 (2)

Text

..

. ~..

F.Ri,' AHEARNE -

. g., 3.. ' m

' UNITED STATES

-EM

-e.

r.

MR.,gILHOA%.' - +pe,- # gy

,e _#.-sz 1. EAR REGULATORY COMMISSION

'~

m-s ; y.,. 3 ;..., 3. -

.. - - - '. '. - WASHINGTON, D. C.20555 a,

y

.a.

MS.EARDING E

\\

p. : ;. ? *- p._',...

2 ao

/.Un E....._..,

...LL Februarv 10, 1983

.3rdt 2

. T:.::L ?2 "%9.r.. -

~

• 0;4,4f.,. r J.-r.Q'.' C5 5.'

..-- ~-..-

...-u..

, ~.

. M.s..?..

_e.. :.--:.:

,e. "...

q s

/

-4=,d;=' _-.-.h d v - -

~

/

.. L*4 :* *.* -

..:...... MEMORA'NDUM FOR:

Commiss'ioner Gilinsky

./.

(ommissioner Ahearne 1

- ~-

a.

.pf i,&--

Commissioner Roberts

\\

_%T,,,. :. - -2,x:-

.- T.fr Commissioner Asselstine-i r) i

~

+my FROM:-

Nunzio J. Palladino

/]

E SU BJ E'CT:

ANALYSIS OF GPU AND B&W TRANSCRIPTS In response to Commissioner Gilinsky's memorandum of February 2, I propose that we ask the EDO to cover these matters in the work that is already underway, rather than having OGC do F;

this.

I would like SECY to track responses.

cc:

SECY 0GC

-u-OPE DIA EDO 3

')*

T,'!

3 I

W.

8 k

m.

~~. t:

' ~

a.e 8308080192 830715 PDR COMMS NRCC CORRESPONDENCE PDR

m

4.

-['

' D. '

..s 1

. ~ ' M. ' o

• I b - p;_~ -..

,a

.,4 s

a

.- o -.

e -

{

~ ;? *-.r.y-,1

.y 4..

~

, y.

.y y

p-1 -.g..

.=

[

}

_--=.:

.. '~ ~

i.~

~^

U.

..i i+

. u..u -.

, --... g..,,.,, -. -

.:- * ~r. ;.

.-l g..,,

_- m

~..-j-4 '. '. ;. : *. -- ^.:s.

, - - -p.:--m, - - - -

Mt.5I:_.. aj.I

• ..T._..u

- b.-.. - -....

I-

~

. m.7.-i

-:l

' ' ".t t._, mp... --

5.R -~:... - ~. -~ - -

~-

~

~"

. M ~M. -* '.. -

.G".'

J.

.m

. = 3..--. ;

~ ' - ~ ~ - - - - -

.=.y..:..,...

.a

.u

/

-..r=.:> -: =.... _., _

s-

...s r.=_s__.-.,__..

. _a m

-.=:..---- -

3

- fZ-5.

/ _

p--

.==- ::.

=:. m.-

~ ~ ~' "

'* * - * ' - = - -..

M

.. - -. =

N-*.

6h+_

p 6-e:

-j/4 J a _ u,9

[

"O6M t

i.-

~...I._.

l g_

l - - -

l

~ -*

l l

D-l -

--w__...

1 o-.

e.-.e-.gy

~

-~

r..' ** -.

g

/ - - 'A...--.-..

'...e

. =..

l:

e

.e we

.1 g

t g,..

..~em_

~ ' '

.= =..

m_.._

c-----

[paus4 %,

(_

9 UNITED STATES

(..

ECLEAR REGULATORY C.OMMISSKiR-

'.3 y

gig WASHWGTON, D. C.20555 g

gl W**eaf Parch 25,1983

.a*

Chairman Palladino MEMORANDUM FOR:

Commissioner Gilinsky Commissioner Ahearne Commissioner Roberts Commissioner Asselstine

/

Herzel H. E. Plaine FROM:

/-

General Counsel REVIEW AND ANALYSIS OF. TEE TRANSCRIPT IN

SUBJECT:

GPU v. B&W This is in response to Chairman Palladino's request of March for OGC views on the legality of a Commission 9, 1983, rather than OGC, to respond to decision directing-EDO, Commissioner Gilinsky's request for, a review and analysis of the transcript in GPU v. B&W.

It is our opinion that the Commission's action on this matter is authorized by section 42' of the. Energy Reorganization Act of 1974, 201(a) (1) 1 of 1980, S 5841, and by Reorganization Plan No.

U.S.C.

reprinted in 42 U.S.C.A. S 5841.

STATUTORY BACKGROUND AND LEGISLATIVE HISTORY of the in dispute that under section 1(d)

It is not of the Energy-Reorganization Plan and section 201(a) (1)

Reorganiration'Act each individual Commissioner h at issue here is the right of individual Commissioners to require the development of information

However, in existence and which requires the commitment which is not of staff resources to develop.

Statements in the House 1/ And Senate 2/ Reports on the Re'crganization Plan reveal a legislative intent to qualify the right of individual Commissioners to require the 96-1043 on the House of Representatives Report No.1 of 1980, Adverse Report to 1/

Reorganization Plan No.

~

Accompany,E. Res

• 624, May 21,1980, page 10, Senate Report No.96-790, to Accompany S. Res. 397, Disapproving Reorganization Plan No.1 of 1980, page 2/

~

17.

CONTAC'T:

Martin Malsch, OGC Juan L.. Rodriguez, OGC 634-1465

~.-+u wn-.;,

o m

=ser

(_.

.\\*

L developmsnt of information not in existence and reenirinc

~

. the co=r.it.nent of NRC staff res.ources,to develop.

'The

~

co=ments reflect a ce=prc=ise becween the competing considerations of assuring Co==issioner access to inf ormation and analyses necessary.cr useful f or the performance of their functions and the management inefficiency which.results from allowing every Cc=missioner to assign tasks to the staff.

It is clear that the qualification was intended to' foster the orderly assiganent of work and the establishment of cricrities. 3/

The House. Report contains the following language:

Requests for infor=ation not in existence ani,

' -~~~.

therefore, reghiring st'aff resources to develop, and requests for staff opinions or recommendations shall be.

directed to the staff through the Chairman or his designee to foster orderly management processes, including the setting of work priorities. 4/

The Senate Recort stated:

Individual members of the Commission have full access to all informati'on in order to assure that diverse views of me=bers are properly ihfermed, except that and requests for information not in existence, therefore, requiring staff resources to develop, and requests for staff opinions or. recommendations shall be directed to the staff through the Executive Director for operations in order to foster orderly assignment of

- work and setting of priorities. 5/

The House Report goes on to indicate that the Cc= mission itself retains the authority to resolve disagreements between the. Chairman and individual, Commissioners relating to 'this type of request:

"In the case of disagreement between the Chairman and a member as to the need or value of such a request in

~

relation to staff effort or the time in which it is required, the issue shall be' resolved by the Commission."

3/

House Report, suora at page 4.

T/

House Repor't, sunra at page 10.

5/

Senate Report, suora at page 13.

e e

n

2

(

(-

~-

Furthermore, the House Report, suora, at page 5, recognizes a Commission authority to set guidelines for the development of information as part of its policy development function.

The Report notes that.the Commission would be best served by the adoption of such guidelines and states:

The collegial body is the central component of the agency, charged with policy setting, direction and control.

That body should, as a matter of course, determine the agency's priorities, which are then

~

carried out under the Chairman's direction.

Individual requests from the Co==issioners may not i

receive priority attention if the requested work does not come within the subject areas determined.

by the C6mmission'as requiring primary staff attention.

The legislative history of the Plan describes this Commission's policy setting function in broad terms as follows:

" Policy formulation" shall include any decernin'ation, whether specific or generic, affecting the substance of the Commission's responsibilities concerning the common defense and security and the health and safety of the public.

It may therefore encompass a variety of activities beyond the establishment of broad principles to govern Commission action:

for example, majo:

administrative decisions that have substantive implications; approval of the NRC budget, including specific. programs; the setting of research priorities; implementing values.

S' enate Report at page 15.

See also House Report at page S.

The final piece of information necessary for our analysis is section 4 (d) of the Reorganization Plan which provides that "the he' ads of Commission level offices or successor offices, of the General Counsel [etc.,* listing the other Commission level offices) shall continue to report directly to the Commission and the Commission shall continue to receive such reports."

ANALYSIS The request by Commissioner Gilinsky for an OGC review of the GPU v. 3&W transcript entails a review of 47 volumes of transcript, totalling over 7,000 pages, which by itself would be incomplete in view of the approximately 13,000~

pages of exhibits, some of which are depositions adding additional testimony.

A parallel review of the'same transcript is also under way by EDO staf f.-

However, the EDO staff review, unlike the proposed OGC review, cove'rs the entire evidentiary record of the GPU v.

B&W case, including

- ~ - - - - - -.-

a s._

w L.

the,13,000 pages c.f exhibits, and involves the full tima services of several technical and legal personnel who arc'

' f amiliar with the numerous back' ground investigations of the and techn,ical safety issues.

3cch the TF.I-2 accident proposed OGC review and the EDO staff review entail in existance.

c,eneration of new information and analyses net The lancuage of the Reorganization Plan and the Enereven their f ace addre Reorganication Act do not an in...civicca., Cc==issioner to request stueles and analyses in existence and which require resources to which are not develop.

Therefore, any legislative histcry in point would be controlling.

The legislative histcry of the l

is quite clear that the Cer=ission 1

__ Reorganization P an 4

itself is to exercise preeminent. authority in this area and.

that the right of individual Cc=nissioners is qualified or limited. In this area, as stated in the House Report, "in the case of disagreement...as to the need er value of such a in relation to staff ef fort or the time in which it request is required, the issue shall be resolved by the Commission." 6/

of the Re. organization This view is bolstered by section 4 (d)

Section 4 (d) of the Plan provides Plan also cited above.

that Cc= mission level effices such as OC-C " report directlyThe to the Cc==ission" and not to individual Cc=missioners.

~

denotes the existence of use of the word " report" Co==ission superviscry authority

~

su'pervisory authority.

.~estails.a preeminent Cc==ission role in fostering the cr'derly assignment of. work an6 the establishment of

~

T..nis won,.c Inc,_uce cecisions on wnich pro 3ects prioraties.cr tasks should be performec by Cornissica level offices, as opposed'to EDO staff offices.

such as OGC, Fin. ally, the particular task at issue here impinges directly since :ne.

on'the. commission,s po3_1cy ceve_,opment runctaan, results. of the requested transcript review would be relevant both' to the TMI-1 restart adjudication bef ore the Cc==ission As the and 'to the need for additional enforcement action.

House Report notes, the coll'egial Cc= mission is the central

~

~

s The legislative history cited above appears to deal specifically with Commissioner requests for information 6/

However, the discussien

~

' to be ceveloped by EDO staff.

of in the 1.egislative history interprets section 1(d) the Reorganization Flan which references section 1

These of the Energy Reorganizatien Act.

201 (a) (1)

, crevisions establish the respective authority of t acclicable to requests to Cc= mission level offices and the legislative history I

Eence, EDo staff offices.

sheuld'be equally applicable to both kinds of requests.

.:=

v L

w.

v component of the agency charged with pclicy setting,

.n c lu c..s.ng ma-)or acm:.n:.strative cec:.s:.cns, an, ceterrans.ng

' acenev criorities. 7/

The'propositien that the Co=rission itself, as distinguished from an individual Comissioner, exercises the preeminent role here is fully consistent with the concent of the col.3.egia3_ Co==:..ssa.cn e=occ:.ec

.n the governing statutes and legislative historv.. _B/

7/

House Repert,'suora, at pages'5, 10.

T/

It should be noted,

t. hat in certain specific areas the Cc==ission has..already.ey.ercised its collegial authority by assigning certain functions to OGC, such as acv.s:.ng :.nc:.vicual Commiss:.oners on con:,:. cts o, interest issues.

5 CFR S 738.201-203; 10 CFR 0.735-3 (h).

The Cc==ission could, of course, change the delegation of authority and vest the function elsewhere.

cc:

OPE OCA OIA IDO ILD

~

SECY l

L 1

i l

S k

l l

i g

e

, _ -,