ML20113G653
| ML20113G653 | |
| Person / Time | |
|---|---|
| Site: | 05000142 |
| Issue date: | 06/06/1984 |
| From: | Reamer C NRC COMMISSION (OCM) |
| To: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| Shared Package | |
| ML20113G428 | List: |
| References | |
| FOIA-84-198 NUDOCS 8501240461 | |
| Download: ML20113G653 (3) | |
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UNITED STATES l
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June 6, 1984 MEMORANDUM FOR:
Samuel J. Chilk Secretary of the Commission
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C. W. Reamer V Legal Assistant to the Chairman
SUBJECT:
SECY-84-116 Attached are the Chairman's dissenting views which should be appended to the Commission order in this case.
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Attachment:
As stated
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. DISSENTING VIEWS OF CHAIRMAN PALLADINO I disagree with that portion of the Commission's order that declines to initiate rulemaking because "the staff has made no showing as to why the available adjudicatory procedures are inadequate to address the Licensing Board's decision."
Order at 2.
The Commission majority appears concerned that rulemaking may short-circuit the adjudicatory process.
However, it appears that rulemaking was proposed by the NRC staff at the Licensing Board's suggestion.
See NRC Staff Response to Board Order Concerning Contention XX at 5 (Dec. 13, 1983).
Thus, it does not appear to me that the intent of the staff was to short-circuit the adjudicatory process.
Adjudication can address what NRC regulations require, but it is not a way to modify the regulations.
Assuming that the staff first pursues its adjudicatory options as the majority suggests, the Licensing Board's interpretation of the regulations might be upheld on review.
At that point under the majority's approach, the staff could apparently request rulemaking to amend the regulations and the Commission might conclude that rulemaking would be appropriate.
Thus, I question what is to be gained by forcing the staff first to pursue adjudication before l
proposing rulemaking.
On the contrary, delay in addressing i
2 the question of rulemaking may create unnecessary uncertainty for other licensees.
I believe that the better course would be for the Commission to consider rulemaking now and propose an amendment to the rules if there exists a sound supporting techni. cal basis.
I do not intend these views to intimate a judgment on my part on any issue in the UCLA proceeding.
I have reached no such judgment.
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UNITED STATES IN RESPONSE, PLEASE 8
NUCLEAR REGULATORY COMMISSION REFER TO:
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June 13, 1984 CFFICE OF THE SECR ETARY MEMORANDUM FOR:
Berzel H.E. Plaine, General Counsel FROM:
Samuel J. Chilk, Secreta
SUBJECT:
STAFF REQUIREMENTS - AFFIRI ATION/ DISCUSSION AND VOTE, 4:30 P.M.,
THU Y, JUNE 7, 1984, COMMISSIONERS' CONFERENC ROOM, D.C. OFFICE (OPEN TO PUBLIC ATTENDANCE)
I.
SECY-84-116 - UCLA Reactor License Renewal Proceeding and Staf f Request to Initiate Rulemaking on the Interpretation of 10 CFR 73.40(a)
The Commission approved a proposed order that declines the -
NRC staff's request to initiate a rulemaking proceeding to modify two decisions by the Atomic Safety and Licensing Board presiding over the.UCLA research reactor proceeding.
The ASLB decisions held that 10 CFR 73.40 (a) requires UCLA to take some measures to protect the reactor from potential sabotage.
The extent of the measures is the issue that was be. fore.the Board.
Commissions es Roberts, Asselstine and Bernthal approved the proposed order as attached to SECY-84-116.
Chairman Palladino disapproved; his separate views are attached to the order.
Commissioner Gilinsky did not particip, ate.
(OGC)
(Subsequently, the Secretary signed the Order on June 8, 1984.)
-II.
SECY-84-182 - Sua Sponte Issue Raised in the Matter of Duke Power Company The Commission approved a proposed order that terminates the consideration by the Atomic Safety and Licensing Board of a contention, raised sua sponte by the Board, to consider the site-specific problems experienced with Catawba's diesel generator manuf actured by Transamericia Delaval, Inc. (TDI).
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. Chairman Palladino and Commissioners Roberts and Bernthal approved the proposed order as enclosed in SECY-84-182.
Commissioners Gilisnky and Asselstine disapproved; their separate views are attached to the order.
(OGC)
(Subsequently, the Secretary signed the Order on June 8, 1984.)
III.
SECY-84-218 - Shoreham - Suffolk County Motion to Clarify CLI-84-8 The Commission approved a proposed order that responded to a motion by Suffolk County and supported by the State of New York for clarification of the Commission's Order of May 16 (CLI-84-8).
The order indicates in part that suffolk has demonstrated no practical consequences from the Commission's use of the word " resume" to characterize the hearing; and the State of New York's concern that a resumed hearing would deny,
procedural rights is speculative.
Commissioners Roberts, Asselstine, and Bernthal have approved the proposed order with the modifications draf ted by OGC to identify other pertinent and similar motions.
l Commissioner Gilinsky did not participate.
Chairman Palladino l
abstained; his separate statement is attached to the order.
(OGC)
(Subsequently, the Secretary signed the Order on June 8,1984.)
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Chairman Palladino Commissioner Gilinsky l-Commissioner Roberts Commissioner Asselstine l
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REGULATORY ANALYSIS Clarification of beneral Physical Protection Requirements Statement of Problem Paragraph 10 CFR 73.40(a) currently states that "Each 1icensee shall provide physical protection against radiological sabotage and against theft of special nuclear material at the fixed sites where licensed activities are conducted.
i Physical security systems shall be established and maintained by the licensee in i
accordance with security plans approved by the Nuclear Regulatory Comission."
The Commission uses this provision only as a general statement of the need for f
physical protection and not as a detailed requirement.
The more detailed physical protection requirements for ead class of licensed facility are pre-sented in other sections of Part 73 of 10 CFR.
It has been Commission policy e.nd application that the more detailed requirements in the other sections of 10 CFR Part 73 define the extent to which protection against sabotage or theft or both must be addressed by specific classes of licensees.
In a recent ruling, an Atomic Safety and Licensing ioard has held that a facility licensed under 10 CFR 73.67 must specifically treat both theft and sabotage in its physical protection plan even though section 73.67 only mentions the ' threat of theft. The Board based its decision'on its reading and interpretation of the intent of the regulations as written. Thus, the Board concluded that, because both the threats of theft and sabotage are mentioned in the general provision paragaph (10 CFR 73.40(a)), detailed requiremer,ts which only mention one of the threats do not fully satisfy the general provision.
The Board's recent ruling has shown that confusion >can result from the'present i.
wording of 10 CFR 73.40(a). Also, an interpretation of the regulatory intent l
such as the Board's could impact several classes of licensees and not just those licensed under 10 CFR 73.67. Therefore, to avoid any future confusion, a clari-ficatio. Of the language in paragraph 73.40)(a) is needed.
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A language amendment will codify current practice for all fixed site licensees who must provide physical protection. Because 7-3.40(a) only applies to fixed sites no similar clarification is needed for the transport of special nuclear material (SNM).
The significance of taking no action to address the problem would be to let the confusion over NRC's application of 73.40(a) continue.
Such confusion could cause problems in future licensing and relicensing actions.
Other Licensing Boards also might interpret the regulatory language in accordance with the interpretation made by the current Board.
Objective The objective of this rulemaking action is to clarify the NRC's policy and practice regarding the use and -relationship of 73.40(a) and the 7ther sections of Part 73 which contain detailed requirements for specific classes of licensees.
This amendment will codify the current application of 73.40(a) and show th basis under which physical protection plans are presenily approved. Thus, future confusion and nisinterpretation regarding the intent of the general provisions paragraph will be prevented.
Alternatives Two alternatives were considered in detail:
- 1) making a clarifying amendment to the current rule language, and 2) taking no rulemaking action while continuing current licensing practice.
Consequences
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The cost and benefit of making the clarifying amendment are summarized as follows:
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- 1) Future confusion over the NRC's policy and applic~ation regarding 73.40(a) will be prevented.
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Current and future licensees will not be impacted because the amendment merely codifies a course of action that the NRC is already pursuing.
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3)
There will be no cost or impact on NRC operations other than the staff 1
time and cost of publishing the notices in the Federal Register.
The staff time on preparing the notice is largely already spent and only a small amount of future effort is anticipated.
The cost per page of publishing I
in the Federal Register is about $400. This notice should take less space than one full page, and thus, the cost of publishing both a i
proposed and a final rule notice will be less than $800.
I The impact of not making the rule clarification is suxnarized as follows:
1)
Confusion over the intent of the regulation would be allowed to continue.
Such confusion has already required extra staff time and effort in one licensing hearing which is not yet resolved.
An estimated additional 0.4 to 0.8 staff year would be expended in litigating the additional security measures which should be provided at UCLA to specificalli protect against t
sabotage.
This issue could come up in future licensing and relicensing hearings and the probable impact on staff time and resources is uncertain.
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The cost of publishing a proposed and final rule notice.in the Federal 1
r Register will be saved.
Conclusion
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I Alternative 1 (issuing a clarifying amendment to 73.40(a)) should be implemented.
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The dollar cost to the Commission is small and by prevepting further confusion I
over the regulation's intent, much staff and licensee time can be saved in the UCLA hearing and in future licensing and relicensing actions.
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