ML20249C796
| ML20249C796 | |
| Person / Time | |
|---|---|
| Site: | Salem  |
| Issue date: | 02/23/1998 |
| From: | Diaz N NRC COMMISSION (OCM) |
| To: | Shirley Ann Jackson, The Chairman NRC COMMISSION (OCM) |
| Shared Package | |
| ML20249C767 | List:
|
| References | |
| FOIA-98-121 NUDOCS 9807010209 | |
| Download: ML20249C796 (5) | |
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LIMITED DISTRIBUTION February 23,- 1998 L
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._Dr. Shirley Ann Jackson, Chairman
~ U.S. Nuclear Regulatory C6rnmission
Dear Chairman Jackson:
On February 3,1998, I expressed my surprise and confusion over the statements -
- contained in your IOM of January 30,1998, on the " Emergency Exercise for Salem
~ Nuclear Power Plant". I believe I documented my adherence to process, and assumed the issue was closed upon our subsequent meeting on February 18,1998.' Afterwards,
' I was amazed at the resources spent trying to comply with your stated preference that
"' the Chairman does not support t' e use of the 18th floor dining room for this function". (This was the luncheon on March 2,1998, for the four senior foreign
> observers of the exercise.) But now, I am concemed that the mission'of the Nuclear J Regulatory Commission and the integrity of the institution may be weakened by actions that may exceed your authority as Chairman. To focus on this week's issue, I will -
- discuss, within the scope of the Commission's obligations, only emergency preparedness and wait for the requested Closed Commission Meeting to discuss other -
issues.
The issue in que' tion is the authority of the Chairman over emergency preparedness s
and the corresponding policy authority of the C.ommission in the context of the
- Reorganization Plan No.1 of 1980 and NRC applicable practices and historical 1 perspective.
The Reorganization Plan of 1980 is perfectly clear on one issue: the authority of the
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i Chairman is unquestionable " pertaining to an emergency conceming a particular facility".L As Section 3(a) states:
'Notwithstanding sections 1 and 2 on this Reorganization Plan, there are
- hereby transferred to the Chairman all the functions vested in the Commission pertaining to an emergency concerning a particular
- facility or materials //consed or regulated by the Commission, including -
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2 the functions of declaring, responding, issuing orders, determining specific policies, advising the civil authorities, and the public, directing, and coordinating actions relative to such emergencyincident. [ Emphasis added).
Furthermore, the Senate Committee on Governmental Affairs reported on Section 3(a) of the Reorganization Plan as follows:
Subsection (a) provides for all of the emergency response functions of the Commission to be transferred to the Chairman. The Chairman shall have the authority to determine when an emergency exists, alert appropriate officials, issue Commission orders,... interpret Commission policies, or determine specific policies if the Commission has not formulated policies applicable to the emergency situation, and direct and coordinate Commission and other actions in response to the emergency. The Commission shall not have the authority to direct the Chairman in the performance of these functions; but the Chairman's exercise of these functions must conform to subsection (c) of this section. The Chairman is expected to assume such emergency authority only for the limited duration of a specific emergency at a particular facility or involving specific licensed or regulated materials. [S. Rep. No 96-790 at 20].
I am cognizant of, and fully support Section 3(a) of the Reorganization Plan No 1 of 1980. This provision of the Plan also limits the Chairman's authority to an actual emergency and does not extend to emergency preparedness and planning.
The Reorganization Plan of 1980 is not so clear regarding delegation of authority.
Section 3(b) states:
The Chairman may delegate the authority to perform such emergency functions, in whole or in part, to any of the other members of the Commission. Such authority may also be delegated or redelegated, in whole or in part to the staff of the Commission.
However, the legislative language (the message from the President, as well as the Senate and House final reports) that accompanied and clarified the Plan is quite precise regarding this point. The President's message of March 27,1980, states that:
The Plan would correct this situation by specifically authorizing the Chairman to act for the Commission in an emergency. In order to ensure flexibility, the Chairman would be pemlitted to delegate his authority to deal with a particular emergency to any other Commissioner. Plans for
3 dealing with various contingencies would be approved by the Commission
- in advance. The Commission would also receive a report from the
" Chairman or his designee describing the management of the emergency J
. once it was over.
In describing subsection (b), the Senato Committee said in part:
Subsection (b) provides that the Chairman in his discretion may delegate the emergency functions to another member of the Commission if he is-unable to perform such functions or otherwise determines that such delegation would be appropriate under the circumstances....
The Chairman, or anoth,er Commission member delegated the emergency
- functions, may delegate the performance of such functions to the staff. It is expected that such delegations will be partial, and that the Chairman or other member of the Commission shall be fully responsible for the adequacy of the Commission response to the emergency. (S. Rep.
No 96-790 at 20-21).
4 in commenting on subsection (b), the House Committee stated:
The Chairman in his discretion may delegate the emergency functions to another member of the Commission.... The Chairman, or other member delegated the emergency functions, may delegate the performance of l
such functions to the staff. It is expected that such delegations will not be complete, and that the Chairman or other member of the Commission I
shall be fully responsible for the adequacy of the Commission response to 1
the emergency. It is also expected that actions taken under such
- delegations shall conform as nearly as possible. to any Commission plans 1
for emergency response. (H.R. Rep. No 96-1043 at 12].
l These statements, as well as prudence, make clear that the Commissioners can play key roles in emergency responsiveness. Therefore, unambiguous procedures need to exist to discharge our responsibility when the Chairman is unable to discharge these
. functions or is not available at the Response Center within a short_ period of time.
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Again, the Reorganization Plan of 1980 is clear and precise'on one defined issue; that response to emergencies - and therefore emergency preparedness "shall conform to
' the policy guidelines of the Commiesion". As Section 3(c) states:
In acting under this section, the Chairman, or other member of the i
Commission delegated authority under subsection (b), sha// conform to the policyguidelines of the Commission. To the maximum extent
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possible under the emergency conditions, the Ch6rman or other member of the Commission delegated authority under subsection (b), shall inform the Commission of actions taken relative to the emergency. [Emphasi-s added).
This statement addresses the requirement to have policy established by the Commission to deal with actual emergencies, and as required by law, to be prepared to act based on training and using established procedures.
Section 3(c) discussed above, is fully consistent with Section 2(c), which states:
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The Chairman as principal executive officer and the Executive Director for Operations shall be govemed by the genera! policies of the Commission.
The Chairman and the Executive Director for Operations, through the Chairman, shall be responsible for insuring that the Commission is fully and currently informed about matters within its functions.
It appears that the above sections of the Plan are not supportive of your interpretation of your responsibilities for emergency preparedness in general, under the Reorganization Plan No.1 of 1980. While it is undeniable that the Reorganization Plan No.1 of 1980 gives the Chairman or designee extraordinary powers in an actual emergency, the Plan does not award the Chairman the right to take unilateral control over emergency exercises er create policy for emergency preparedness outside of an actual emergency. Therefore, without a duly enacted change to the Plan; a Chairman cannot legally assume authority that is not properly enumerated; nor can Commissioners legally yield authority that is properly theirs.
The following additional observations are submitted to complement this discussion, and to strengthen the principle of collegiality established for the NRC by the Atomic Energy
'Act of 1954, the Energy Reorganization Act of 1974, and the Reorganization Plan No 1 of 1980.
All Commissioners, including the Chairman, are full and equal participants in policy manners.
The Commission has the specific responsibility to establish emergency response policies and is accountable for such.
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The Commission, specifically since TMl and the enactment of the Reorganization Plan of 1980, has been especially concemed with who is in charge during an emergency and has strived to have Commissioners trained and prepared because the entire Commiss:on is accountable, not only the Chairman. This is not only a right, but a responsibility.
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The Commission, as a matter of policy, has established all the elements for -
emergency preparedness, including the improvements to the Response Center, and associated procedures and resources.
There are no known historical precedents for the t.stions you proposed in your February 20,1998, IOM on " Emergency Exercise for Salem Nuclear Plant".
In summary, I disagree with your intent to replace me on the Salem exercise at the last '
minute after months of preparation, as well as your interpretation of your authority in this matter. They could compromise the integrity of the NRC's emergency response effectiveness and the intomational prestige and credibility of the Commission. This would be to the detriment of the United States of America.
I am distributing this letter only to our fellow Commissioners. However, a COMNJD is being sent to SECY requesting Commission action on the most pressing issues.
With the highest regard for the Office of the Chairman and the Commission, I remain, Sincerely,
]
Nils.
cc:
Commissioner Dicus Commissioner McGaffigan f