ML20217K050
| ML20217K050 | |
| Person / Time | |
|---|---|
| Issue date: | 08/04/1997 |
| From: | Shirley Ann Jackson, The Chairman NRC COMMISSION (OCM) |
| To: | Backus R BACKUS, MEYER & SOLOMON |
| Shared Package | |
| ML20217K054 | List: |
| References | |
| NUDOCS 9708150118 | |
| Download: ML20217K050 (2) | |
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UNITED STATES 4
NUCLEAR REGULATORY COMMISSION
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August 4, 1997 caAm m Robert A. Backus Backus, Meyer, Solomon, Rood & Branch 110 Lowell Street P.O. Box 516 Manchester, New Hampshire 03105-0516
Dear Mr. Backus:
I am responding to your letter of June 19,1997. In your letter, you suggest that the standard for deciding whether the Nuclear Regulatory Commission (NRC) should take prompt remedial action, including shutdown of a facility, should be " substantial regulatory compliance" rather than the NRC's traditional standard of undue risk to public health and safety.
The Atomic Energy Act of 1954, as amended, requires the NRC to ensure adequate protection of public health and safety. The NRC appropriately equates this statutory obligation with protecting public health and safety from " undue risk." These concepts are well established by the Commission's regulatory actions as well as by Commission and judicial case law.
Given this precedent, I hope you understand why the Commission is not prepared to embrace your suggestion. Moreover, a " substantial compliance" standard would be no less
" subjective" than the undue risk standard. The very term " substantial compliance" connotes something less than total compliance. Any determination of what would constitute
" substantial" cornpliance necessarily involves the application of judgement. What or 3 rarson might think is substantial another might find to be less than substantial.
This is not to say that compliance with NRC requirements is irrelevant to determinations of adequate protection of public health and safety, it is a mistake, however, to conclude that AD.y failure on the part of a nuclear power plant to meet any specifics of the NRC's f
regulations, license requirements, or technical specifications automatigaA translates to a f
finding that the piant was unsafe during the period of noncompliance. Long-standing Commission precedent holds that while compliance with all NRC requirements presumptively provides reasonable assurance that public health and safety will be adequately protected, the [j p converse - that failure to comply with one requirement or another indicates the absence of adequate protection -is not correct when the agency has determined after careful consideration of the particular set of circumstances that a given noncompliance poses no undue risk to public health and safety. Accordingly, the agency must, of necessity, exercise its expert judgement in determining whether there is an undue risk to the public healin and safety from plant operations.
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CORRESPONDENCE PDR 1o-
2-The Atomic Eriergy Act authorties the NRC to take a variety of enforcement actions, ranging from the ultimate sanction of license revocation to lesser sanctions such as license suspension or modification, including shutdown, orders to protect health and to minimize danger to life or property, civil monetary penalties, and requesting the Department of Justice to seek judicial injunctions, to no action at all when the Commission determines, after careful consideration, that the circumstances surrounding a particular noncompliance warrant the exercise of enforcement discretion. It is well established that the choice of how to correct a regulatory violation, however, is within the sound discretion of the Commission.
The paramount concern in exercising the Commission's discretion to address violations of NRC requirements is protection of public health and safety. The standard for prompt remedial action, including shutdown, is whether a violation poses an undue risk to public health and safety. Not all violations warrant immediate shutdown of licensed reactor fas.es.
As the Commission has stated before:
it goes without saying that a violation posing an undue risk to public health and safety will, of course, result in prompt remedial action, including shutdown if necessary. In other instances, however, the Commission has a wide spectrum of remedies for dealing with violations of regulations....The choice of appropriate mechanism for correction of an assumed violation rests within the sound discretion of this agency.
Polition for Emorgancy and Romodial Action, CLl-78-6, 7 NRC 400,405-406 (1978), quoting Polition for Shutdown of Cortain Reactors CLI 73 31,6 AEC 1069,1071 (1973). 500 also Advanced Medical Systems, Inc., CLl 94-6, 59 NRC 285,312 313 (1994).
In response to your inquiry, you may rest assured that the Office of the General Counsel was consulted with respect to my letter to you of May 9,1997, as well as this letter.
Sincerely, it A~