ML20202H228
| ML20202H228 | |
| Person / Time | |
|---|---|
| Issue date: | 11/13/1998 |
| From: | Mcgaffigan E NRC COMMISSION (OCM) |
| To: | Diaz N NRC COMMISSION (OCM) |
| References | |
| REF-10CFR9.7 NUDOCS 9902080044 | |
| Download: ML20202H228 (2) | |
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UNITED STATES i
NUCLEAR REGULATORY COMMISSION RELEASED TO THE PD ~
WASHINGTON, D.C. 20555 l ~ date '
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COMMISSIONER :
4 November 13,1998 MEMORANDUM TO:
Nils J. Diaz Edward McGaffigan, Jr. h FROM:
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SUBJECT:
COMNJD-98 007 - COMMISSION DECISION. MAKING,
REGARDING THE EFFECTS OF LEGAL ADVICE AND
. LITIGATIVE RISK ON HIGH PRIORITY POLICY MATTERS The upshot of the rSgnosis in this COM is that "zero tolerance" for litigative risk is impeding simple, specific, and workable solutions to problems posed by our Senate l
critics. The proposed cure is that the staff give the Commission the staff's
" independent" approaches -- the promising, but legally doubtful, solutions, if possible while they are still being developed.
I agree that the Commission should be able to consider a full array of promising options, and not just those related to the topics listed in the COM. The staff should not abandon good policy options simply because early legal review reveals legal shortcomings in them. Laws can be changed. Years ago the Commission took a similar approach to potential backfits. The Commission instructed the staff to bring forward promising policy options even if early review suggested that they would not I g pass muster under the backfit rule.
I am concemed on two' counts however not to send a wrong message to the staff. First, in my experience legal advice at the NRC does not display zero tolerance for litigative risk. Indeed, that legal advice has consistently explored the boundaries of existing law.
For example, as we found out in litigation, the original versions of the backfit rule and Part 52 went beyond what the courts could tolerate, and the agency's lawyers have recently helped the_ Commission articulate positions in adjudications that have not been
. the safest from a legal point of view.
1
-Second, and most important, by inviting the staff to give us its " independent" I
approaches, we should make clear that we are not encouraging the staff to proceed without consulting OGC. Early consultation with OGC, besides assuring that litigative
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risk will be considered in our decision making, can bring to light new possibilitie's, including new interpretations of existing law and new regulations or proposed
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legislation.
4 cc:. Chairman Jackson ACommissioner Dicus 1
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' Commissioner Merrifield EDO OGC SECY 2
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