ML20198H600
| ML20198H600 | |
| Person / Time | |
|---|---|
| Issue date: | 09/06/1985 |
| From: | Chandler L NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Jamgochian M NRC OFFICE OF NUCLEAR REGULATORY RESEARCH (RES) |
| Shared Package | |
| ML20197J537 | List: |
| References | |
| FOIA-85-653 NUDOCS 8601310062 | |
| Download: ML20198H600 (2) | |
Text
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i September 6, 1985 Note to: Mike Jamgochian RES From:
Lawrence J. Chandler OELD
SUBJECT:
DRAFT ANSWERS TO CHAIRMAN PALLADIN0'S QUESTIONS ON SECY-85-283 (QUESTIONS B. 6.(SECOND SENTENCE) AND B. 8.)
At your request, OELD has drafted the following answers to Chairman Palladino's questions on SECY-85-283, dated September 3, 1935, in particular, questions B. 6.(second sentence) and B. 8.:
In the second paragraph [on page 7 of the Commission B. 6.
Paper], may the Comission legally rely on the results of the staff's review as a basis for the final rule?
Staff Reply In general terms, the Comission may legally rely on a staff review conducted in the context of an ongoing rulemaking proceeding provided that such review is made a part of the rulemaking record.
In this instance, however, the staff's review is not formally documented as a part of the rulemaking record inasmuch as it was based on very preliminary results of a larger contract ettort being conducted by Pennsylvania State University for the Comission which is not yet completed. The staff's review was based on crude data concerning 20 actual, non-nuclear evacuations for which data was readily available in the timeframe of this rulemaking. In the staff's Judgment, this data lends support to the view that "no additional emergency preparedness measures need be established to account for severe natural phenomena." In light of the staff's position in SECY-85-283 and recognizing that the staff's review is not formally part of the rulemaking record, however, reliance on this review is not necessary to promulgation of the new rule.
B. 8.What, if any, hearing rights are created?
Staff Reply Promulgation of the rule proposed by the staff would have c. Variety of effects on licensing proceedings dependent on the individual 1
status of each. With respect to proceedings in which final agency action has been taken, the new rule could give rise to requests for the initiation of a proceeding under 10 C.F.R. 6 2.206. Such i
requests would norinally be subject to initial action by the j
8601310062 051223 PDR FDIA DELL 85-653 PDR
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. Director of NRR or IE, as appropriate, and subsequent review of the Director's decision by the Commission.
In those proceedings in which final agency action has not yet been taken, two different situations obtain. For those cases in which an initial decision has not been rendered by the Licensing Board, parties may seek to file a new, late-filed contention based on the new rule. In such instances, an intervenor would have to satisfy the standards of 10 C.F.R. 5 2.714 pertaining to late-filed contentions.
In cases in which the record has been closed, either before or after an initial decision has been rendered, an intervenor would have to move to reopen the record and satisfy the standards for reopening a closed record in addition to the late-filed contention requirements. Such motions could be. filed with the presiding Licensing Board, Appeal Board or Commission, as appropriate.
In sum, then, it is possible that a hearing could be held to litigate issues based on the new rule if detennined appropriate by the Director of NRR or IE in response to a petition filed under 10 C.F.R. $ 2.206, or based on the admission of a late-filed contention in an ongoing or reopened licensing proceeding.
Our comments on those answers to Chainnan Palladino's questions drafted by RES are reflected in the marked up copy which was returned to you earlier.
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Lawrence J. Chandler I
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