(6) The lack of provision for a technically qualified body to review staff appraisals of AEC and military reactors not subject to AEC licensing.-AEC has experienced difficulty in evolving procedures for safety review of Government-owned reactors. After long delay, proposed regulations Part 115 containing "parallel procedures," including ACRS review, for power reactors at non-AEC sites were finally announced in late November 1960, thus giving formal sanction to procedures which AEC had already been following for some time. Even these "parallel procedures" leave some ambiguity as to division of responsibility between the AEC and the contractors for proving safety of the proposal.

Moreover, the AEC has not announced under what circumstances it will require ACRS review or permit public participation in the safety evaluation of Government-owned reactors not subject to Part 115. There have been no procedures announced for AEC power-producing reactors at AEC sites such as the EBWR at Argonne (now operating) and the experimental gas-cooled power reactor at Oak Ridge (now under construction). Similarly, the procedures to be applied for licensing of nuclear facilities owned by other Federal agencies is still unclear. The AEC has announced that "parallel procedures" will be applied to the licensing of the NS Savannah, the nuclear-powered merchant ship, which will be owned and operated by the Maritime Administration. However, the National Aeronautics and Space Agency (NASA) will be operating nuclear-propelled rockets and spaceships in the comparatively near future which may present significant health and safety hazards to surrounding communities and the public. Also, the Department of Defense operates power reactors at some military installations, including Fort Belvoir, Va.

(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.-The overdependence of the AEC regulatory process on public hearings has been noted in point (2). Obviously, a hearing devoted to an evaluation of abstruse scientific questions is not likely to provide a meaningful opportunity for public participation unless information can be given in advance to enable competent experts retained by interested public groups to estimate in advance whether the proposed questions merit further investigation and possible intervention. The privilege of attending the hearings and asking for an adjournment if such questions arise is likely, as a practical matter, to be a barren one.

Although the Commission is required by law to give 30 days advance notice of a public hearing in a facility license case, it has not uniformly followed the practice of making public the staff hazards analysis in advance nor has it given adequate and timely circulation to the ACRS report. Without these documents, even an informed member of the public has little basis for deciding whether or not to intervene or raise questions as to the safety of the proposed site and reactor. Some improved type of public notice should be provided by AEC a reasonable period prior to the public hearing. Making the application and accompanying exhibits available in the Public Document Room does not suffice for, as a practical matter, this method does

not afford potential intervenors the time or means to adequately digest the material contained therein, or afford them the benefit of the staff review and analysis.2 Distribution through AEC press release channels would seem the most appropriate method of informing the public. Local and municipal, as well as State, officials should be informed,

C. DIFFICULTIES IN MEETING THE PROBLEMS OF MATERIALS
LICENSING

In the materials licensing field, the difficult burden of preevaluating each proposed use will become more onerous with the increasing use of radioisotopes. This problem cannot be resolved by resort to the general licensing procedure because the general license, in the nature of a blanket authorization, may not provide sufficient assurances of safety. Consideration therefore might be given to substituting a registration requirement for many of the less hazardous sources. Registration would afford a more sure means of enforcing the Commission's regulations without creating an undue burden on the user of the material. Consideration of this measure is especially appropriate at the present time in light of the evolving Federal-State program, still in its formative stage. The States are generally familiar, and have more experience with, a registration system. AEC acceptance of registration before the States begin to assume regulatory responsibility would facilitate operations under the Federal-State program and help to assure the "compatibility" which is essential to its success.

The burden of regulatory responsibilities for materials will undoubtedly become heavier in the years ahead, especially in view of the increasingly expanded uses of radioisotopes. A large number of contested proceedings for the suspension or revocation of materials and waste disposal licenses could dangerously impair the Commission's effectiveness as a regulatory body.

In the materials licensing field, the postlicensing and enforcement procedures of the AEC have been undertaken in some cases with something less than alacrity. It may be advisable therefore to simplify the channels of communication between AEC field inspectors and the Washington headquarters of the Division of Compliance. The existing and complex lines of communication are set out in volume II at page 142.

D. DIFFICULTIES IN AEC RULEMAKING

As noted earlier in this section, the Commission functions in an area with many novel and unique regulatory problems. Understandably, in response to this difficulty, the AEC has been forced to proceed on a case-by-case basis, but this process of trial and error has inevitably led the Commission to take inconsistent positions with a resulting uncertainty that adversely affects the atomic energy industry. It may therefore be advisable for the Commission to reestablish

* As a result of JCAE inquiries, it appears that the Commission is now giving careful study to the problem of the adequacy of public notice of hearings and expects in the near future to make substantial improvements in its notice procedures, particularly with respect to local governments and officials.

an Orders and Regulations Branch with continuing responsibility for identifying the need for, and developing and expediting new rules. After a new rule has been drafted, the AEC staff has experienced difficulty in obtaining Commission consideration. When two or more divisions have divergent views on a proposed rule, it is necessary for the regulatory process to include a means for resolving such differences below the Commission level.

E. PROBLEMS OF THE ATOMIC REGULATORY PROCESS VIEWED IN THE LIGHT OF CURRENT CRITICISMS OF REGULATORY AGENCIES

The independent regulatory agencies have been the target of almost continuous study and criticism for the past quarter century. This criticism was reviewed and the problem reexamined by James M. Landis, of the New York bar, acting at the request of President-elect John F. Kennedy. Mr. Landis, who has now been appointed Special Assistant to the President, introduces his study with a general statement of the problems that have arisen in the administrative process in the course of the past 25 years. He notes that:

There is no single solution which can be projected for problems common to all the regulatory agencies.

*

At various times in the last 25 years so-called general problems came to the surface. Twenty or more years ago the procedural aspect of administrative regulation and adjudication was the uppermost problem. The prime emphasis then was placed on the combination of prosecuting and adjudicatory functions within the same agency. It was the concern with this problem that led eventually to the passage of the Administrative Procedure Act of 1946 with its emphasis upon the internal separation of these functions within the agency and the granting of some degree of independence to the hearing examiners.

Of late the emphasis has shifted to questions of conflicts of interest and ex parte presentations as well as to an effort to transfer certain adjudicatory functions to administrative tribunals or courts. The tendency here is again further to judicialize the administrative process and, in the opinion of many observers, to overjudicialize it to a point where stagnation is likely to set in. More recently a less legalistic approach has been taken, namely to treat the agency as more of a managerial mechanism so as to free it in its broader aspects from the burdens entailed by judicial requirements.

All of these have had their value and in their way have alleviated certain distressing tendencies becoming apparent on the administrative scene. Certain fundamental problems have, however, not been solved. On the contrary, their persistence is too serious to be longer ignored, for their prevalence is threatening to thwart hopes so bravely held some two decades ago by those who believed that the administrative agency, particularly the "independent" agency, held within it the seeds for the wise and efficient solution of the many new problems posed by a growingly complex society and a growingly benevolent government.

Mr. Landis' study has noted various shortcomings of the regulatory agencies which relate in part to their adjudicatory functions and in part to their role as policy forming and executing bodies within the larger structure of the Federal Government. These latter criticisms relate much less importantly to the atomic regulatory process than to the work of the AEC in its roles as the producer of nuclear weapons and as the promoter and developer of a new form of energy.

Concerning their adjudicatory activities, the Landis report comments on the functioning of the independent agencies (not including the AEC) with respect to the following points:

1. Delays in the disposition of adjudicatory proceedings.

2. The costs, direct and indirect, of the regulatory process to the participants and to the Government.

3. The difficulty of maintaining staffs of high quality.

4. The tendency to engage in unethical efforts to influence agency judgment, especially by ex parte approaches to agency members and officials.

5. The judicialization of agency procedures.

6. The reallocation of responsibilities within the regulatory agencies by organizational changes designed to enable the agency heads to devote themselves adequately to policy planning.

In the conduct of the present staff study of the atomic regulatory process, the experience of other regulatory agencies in the Federal Government has, of course, been considered, and helpful interviews have been held with officials of some of the most closely analogous agencies. In addition, the staff has had the benefit of the careful study of other agencies conducted for the 1956-57 staff study by Prof. J. Forrester Davison, of the George Washington University School of Law, and published in appendixes to that study. On the basis of these sources, the following generalizations can be made with respect to the points in the Landis study which are listed above.

(1) Delay in adjudication.-Delay has been a factor in the licensing of both reactors and materials but, perhaps because the caseload is still not high, no great backlog of cases has been built up. Moreover, such delays as have occurred have not as yet actually delayed the completion of any reactors.

The one case in which an active intervention required an adversary proceeding in reactor licensing, the PRDC case, has been extended over a period of more than 4 years and the end is not yet. Moreover, since a construction permit is involved, there remains the prospect of a contest at the operating license stage if the construction permit is granted but the findings of operating safety are open to dispute. Not only did this case run for a protracted period; in doing so it absorbed a great deal of Commission and staff time. While the PRDC case involved questions for which there was no precedent, the burden on the agency of conducting two or three contested reactor licensing proceedings at the same time would not be easy to estimate. Procedures which are reasonably expeditious and an organization at the decision making level which inspires public confidence seem necessary if the risk of the paralyzing effects of contested cases is to be avoided.

(2) The cost of regulatory proceedings. By comparison with the expenditures incurred in the gargantuan, multiparty proceedings conducted in some agencies, the cost of AEC licensing proceedings to date (the contested PRDC case excepted) has not been large. However, where a long series of appearances before the ACRS and the hearing examiner has been required, it is obvious that the expense to the applicant in legal fees and in the time of the applicant's officials and consultants must mount to a considerable figure.

There is, moreover, the continuing hazard that delays in proceedings will result in delays in placing a power reactor on stream with mounting overhead costs. In the Commonwealth Edison case, the applicant

stated that if the protracted series of hearings required by the examiner's order at time of startup resulted in delay in the utilization of the reactor in its electric system, the cost to the applicant would amount to $8,000 a day. It so happened that other factors than the license proceeding delayed the completion of this reactor and so that penalty was not exacted by the cumbersomeness of the procedure for conversion from a construction permit to an operating license. However, in another case such a cost could easily be incurred.

It should be noted, moreover, that, as completion of a reactor draws close, each new hearing is conducted under the Damoclean sword of a new intervention which, so far as existing rules provide, may reopen issues previously considered at the construction permit stage or introduce new matter which, though unimpressive on scientific or engineering grounds, could not be disposed of by a hearing examiner until after the full cycle of hearing, findings, and order had been completed. A persistent intervenor could prolong the process still further by presenting exceptions requiring Commission action and even by seeking judicial review.

(3) Maintaining staffs of high quality.-This point was vigorously pressed in Mr. Landis's report in which he noted the deterioration in the caliber of the members and staffs of most regulatory agencies and remarked: "The prime key to the improvement of the administrative process is the selection of qualified personnel. Good men can make poor laws workable; poor men will wreak havoc with good laws."

Fortunately the AEC has been successful thus far in maintaining a capable staff in its Division of Licensing and Regulation, but it is also true that no agency is so completely dependent on its ability to maintain personnel qualified in a number of advanced and highly specialized fields of scientific and engineering knowledge. Good general capacity and administrative ability cannot replace the essential technical knowledge that AEC must command.

In view of this situation, any proposal for change in the AEC's regulatory organization must put great emphasis on its continuing ability to attract and keep men of high quality on the agency's regulatory staff and also on its efficiency in enabling these men to keep in close and informal contact with the other staffs of the agency and the national laboratories who are engaged in the research and development that is constantly advancing reactor technology and posing new problems for safety analysis and evaluation.

(4) Unethical efforts to influence agency judgment. The difficulties caused by ex parte approaches to regulatory agency members and staffs in some highly controversial fields have apparently not characterized the atomic regulatory process, and the AEC has, by the adoption of a strict code of ethical practices, made plain its resistance to such efforts. However, the agency remains exposed to a subtler influence which arises from the conflict of the responsibilities with which it is charged. As has been noted above, the AEC is subject to greater stress of this character than are other regulatory agencies.

(5) The judicialization of agency procedures.-The typical regulatory agency is engaged in the adjudication of controversies that are frequently hotly contested on the issue of which great material interests are often at stake. These circumstances have led to the development of pressures on the agencies and their staffs which have threatened to undermine the integrity of their adjudicatory process.