Matter of Coastwise Marine Disposal Co.. regulating radiation hazards... Activities of State and local governments. Part II. The AEC Regulatory Process- A. AEC regulatory organization_. B. AEC regulatory procedures.. 2. Construction permit for power or test reactors. 3. Operating license for power or test reactors_ 5. Other government-owned reactors... 6. Licensing of nuclear materials. Part III. Discussion of Case Histories_ Vallecitos Boiling Water Reactor. Rural Cooperative Power Association, Elk River. 19 23 Regulation 10 CFR 50: “Licensing of Production and Utiliza- B. Difficulties in meeting the special problems of reactor licensing- 3. The lack of provision for the review of staff determinations by a technically qualified body.. 4. The inappropriateness of the present hearing procedure to secure the full benefit of scientific testimony and the technical judgments of expert witnesses_. 5. The lack of a technically qualified body to determine which applications present safety problems calling for ACRS review or public hearings- 6. The lack of provision for a technically qualified body to review staff appraisals of AEC and military reactors 7. The failure to give reality to the right of intervention by providing adequate public notice of the safety questions to be considered at public hearings.. C. Difficulties in meeting the problems of materials licensing- D. Difficulties in AEC rulemaking- E. Problems of the atomic regulatory process viewed in the light of Part V. Possible Improvements in AEC Regulatory Organization. B. Alternative organizational approaches---- 1. Continuation of present AEC organization with minor changes and improved procedures.-- 2. Creation of a regulatory agency separate from AEC. 3. Creation of a Licensing Board within AEC.. C. Evaluation of the major organizational alternatives.. Part VI. A Plan for an Atomic Safety and Licensing Board Within the BACKGROUND This study by the staff of the Joint Committee on Atomic Energy is designed to bring abreast of current developments an earlier staff study published as a Joint Committee print in 1957 and entitled "A Study of AEC Procedures and Organization in the Licensing of Reactor Facilities." The 1957 study explored certain problems concerning the AEC's regulatory process, including the following questions: (1) whether public hearings should be required on applications for facility licenses; (2) whether safety reports on such applications by the Advisory Committee on Reactor Safeguards should be made public; and (3) whether the regulatory functions of the Commission should be separated from its nonregulatory functions. These problems were considered in the context of an evaluation of the AEC's regulatory experience under the Atomic Energy Act of 1954. Significantly, the 1957 study emphasized the importance of timing in evaluating the need for change in an evolving regulatory organization. With this perspective in mind, the current study by the staff examined the expanded body of experience in atomic regulation since 1957; identified certain problems which have emerged; and projected those problems into the next 10 years-a decade which promises expanded uses for atomic energy and a consequent increase in the regulatory workload of the Commission. The staff has concluded that the time has arrived for a reconsideration of the AEC's regulatory organization and procedures. SCOPE OF THIS STUDY This study is primarily concerned with the decision making process in the AEC regulatory program and considers the roles played in that process by the AEC Division of Licensing and Regulation, the Advisory Committee on Reactor Safeguards, the Office of Hearing Examiner, and the Commission itself. The study also considers the problems engendered by the mixture of promotional and regulatory functions within the Commission in the light of experience since 1957. The staff has concerned itself only incidentally with internal AEC procedures for the processing of papers and the problems of coordination in the Office of the General Manager. Consideration has been given to the problems of overall Federal radiation policy and relations with State and local governments only as they relate to the evolving role of the AEC and the proposals advanced in this study. NATURE OF THE AEC REGULATORY PROCESS The AEC regulatory process, as noted in Part IV of this study, is in important respects unique. The Commission, in the typical case involving the licensing of a power or test reactor, is not called upon : to adjudicate between competing interests, public or private, but rather to reach a judgment as to the safety of a proposed activity. This judgment, because of the abstruse scientific data involved, cannot normally be made on the basis of demonstrable facts alone, but instead must rest upon a complex alloy of fact, new scientific and technical theories, and the application of policy considerations. The regulatory process, in the case of reactor facilities, can generally be described in five "phases." Initially, in the "application submittal phase," the applicant is required to submit a detailed description of the facility and a careful study of every possible risk in its operation, known as a "hazards summary report." In the second, or "AEC staff review phase," the application is evaluated by the Division of Licensing and Regulation with the assistance and advice of other interested divisions. The Divison of Licensing and Regulation then prepares a "hazards analysis" memorandum. If the facility is one for which a public hearing is required, 'the "hazards analysis" is submitted to the Advisory Committee on Reactor Safeguards (ACRS). ACRS review constitutes the "third phase. In the fourth, or "hearing phase" a hearing is held before an examiner, generally under the formalities of the Administrative Procedure Act, at which both the applicant and the AEC staff members testify and at which intervention by interested persons is permitted. AEC rules encourage written testimony but the hearing examiner generally requires extensive oral testimony as well. The hearing examiner renders an initial decision and, at this point, the process enters the fifth, or "final action phase." The hearing examiner's initial decision becomes final unless the Commission, on exceptions by the applicant, the staff, or an intervenor, or on its own motion, reviews the decision. The Commissioners, in reviewing decisions, are not assisted by persons having training or experience in reactor safety matters and their regulations preclude them from consulting experts within the Division of Licensing and Regulation who, for purposes of the case, are isolated in the "separated staff." Following publication of the Commission's decision, appropriate licensing action is taken by the Division of Licensing and Regulation. It should be kept in mind that during the entire course of this five phase procedure, the promotional branch of the AEC may have become thoroughly familiar with the applicant's proposals as a result of negotiations between the applicant and the AEC staff concerning financial and other assistance in research and development and the waiver of use charges for nuclear fuels for the project. Agreements covering such matters will ordinarily have been submitted by the AEC to the JCAE and may even have been the occasion of an appropriation of Federal funds before the first step is taken to apply for a construction permit. Unlike the deliberations of most other agencies, the staff judgment which results from a weighing of scientific and policy factors in reactor licensing should not be reviewed, in the appellate sense, only to determine the fairness of the staff decision and the substantiality of the evidence supporting it. The Commissioners are faced with the task of deciding whether the staff's safety judgment is correct and much rides on the accuracy of their determination--an error could have disastrous consequences. The very difficult job facing the Com |