missioners is compounded by the fact that the AEC, in handling these complex and serious problems, is subject to a strain on its objectivity ✓ for, in many instances, it is both the promoter and the regulator of the atomic energy project in question.

Although the field of materials licensing presents problems of a more conventional nature, the burden of this regulatory responsibility should increase significantly in the immediate future as growth in the use of radioisotopes enlarges the number of industrial, research, and other licensed users. Thus, the aggregate of these conventional problems may impose burdens of a significance comparable to those in the field of reactor licensing.

PROBLEMS IDENTIFIED

The Joint Committee staff reviewed the detailed case histories contained in Part III and the records of certain cases and held discussions with representatives of applicants, intervenors, AEC staff, ACRS, and one of the Commissioners. In the course of its study, the staff noted many instances in which the unique process described above has given rise to problems which have not, and apparently cannot, be resolved by the present organization.

1. The lack of a technically qualified body to review staff determinations and the tendency to overjudicialization of the hearing process

Perhaps the most serious difficulty identified in the present AEC organization is the lack of a technically qualified body to review the staff determinations, giving due weight to the advice of the Advisory Committee on Reactor Safeguards (ACRS), involved in both licensed as well as AEC-owned and military reactors. There is agreement, as discussed below, that in view of the heavy workload on the part-time ACRS, submissions to that group must be limited to important or novel safety questions. This limitation on ACRS review intensifies the need for a technically qualified body to evaluate applications. The Commissioners, faced with heavy developmental and promotional responsibilities, can hope to devote little time to the many sciences and technologies that bear significantly on reactors safety problems and which are crucial to an effective assessment of the initial staff review, This difficulty has been compounded by a tendency to overjudicialize the hearing process which has the twofold effect of isolating the decision makers from those best able to render invaluable technical assistance and impeding full and free communication of ideas between scientists and technical personnel.

2. The need for selectivity in referring problems to the ACRS and in subjecting license amendments to the formal hearing pro

cedures

Another problem identified in this study is the referral of even minor problems to the ACRS which has the twofold effect of (1) unnecessarily burdening the applicant who must make duplicate presentations before both the staff and the ACRS and (2) placing an excessive workload on the already overworked ACRS. Selectivity in deciding which problems should be submitted to the ACRS is difficult in the absence of a body equipped and having the time to assess

V

promptly the staff judgment as to the need for ACRS review. Similarily, the Commission has found it difficult to decide whether amendments to facility licenses should be subject to full and formal hearing procedures.

3. The inability to formulate needed regulatory policy

Finally, the Commission, with its heavy promotional and operational responsibilities, has been unable to formulate much needed regulatory policies and standards. As a result, its regulatory actions, on occasion, have been marked by inconsistency and a resulting uncertainty which adversely affects the industry.

These problems, and the others identified in Part IV of this study, have not as yet become critical because the AEC's workload and the peaceful uses of atomic energy have not progressed to the point where cumbersome organization and procedures produce an operational crisis or inadequate protection for the public. However, there is every indication that as the Commission's regulatory workload increases, it will be unable to successfully meet its many-sided responsibilities for the regulation and development of atomic energy.

POSSIBLE IMPROVEMENTS IN ORGANIZATION AND PROCEDURES

The staff study concludes that many of the difficulties identified above stem from the present combination of regulatory and promotional functions within the AEC and that improvement in the process requires some change in the AEC's regulatory organization. It must be recognized that any plan of organization has its disadvantages and that no solution is ideal. Whatever plan is adopted, there is also room for improved procedures, some of which will require statutory changes.

Before setting forth alternative organizational arrangements, the staff study outlines the main objectives of an atomic energy regulatory organization. Briefly, these include: (1) protection of the health and safety of the public and of employees in industrial and other uses of radiation; (2) encouragement of public confidence in regulatory determinations; (3) attraction and retention of highly qualified personnel; and (4) administrative efficiency.

It is apparent that these objectives may, at times, be in conflict and that no particular plan or organization can fully achieve all objectives, but a statement of such goals is helpful in comparing the principal organizational alternatives.

Part V of this study sets forth a variety of suggestions for improvement of the Commission's regulatory organization and procedures, received by the staff in the course of its study, which may be summarized as follows:

1. Continuation of present AEC organization with minor changes and improved procedures

At one extreme, it has been suggested that the present organization be continued with only minor organizational and procedural changes. These include: (1) appointment of a single Commissioner to concern himself with regulation and safety as his special sphere of interest; (2) separation of regulatory functions at the General Manager's level by appointment of a Director of Regulation reporting directly to the Commission; and (3) changes in the existing pre-hear

ing and hearing procedures, with or without minor organizational change.

In evaluating these proposals, which essentially call for continuation of the present organization, it is the staff's conclusion that they fail to reach the really significant problems identified: the mixture of regulatory, promotional, and operational functions in the same body; the difficulties of bringing to bear scientific and technical expertise in the review of staff decisions; and the reliance on formal, cumbersome procedures which do not necessarily assure greater reliability in safety decisions.

2. Separate regulatory agency

At the other extreme, it has been suggested that there be created a regulatory agency separate from the AEC. This suggestion would free the Commission from regulatory responsibilities and tend to increase public confidence in the new agency's determinations.

However, this plan has several serious disadvantages, principally centering around problems of communication and staffing. Informal consultation concerning scientific and engineering questions relating to safety between the new agency's staff and the AEC's staff would be made more difficult. It might also be difficult to attract qualified technical personnel to the new agency because of their shortage and reluctance to serve an agency with no developmental functions. Having only safety responsibilities, the agency might come to disregard other considerations. Finally, it does not appear that the AEC's regulatory workload has developed to the point where creation of a separate agency can be justified.

3. Atomic Safety and Licensing Board within the AEC

The plan which the staff finds is best able to meet the needs of the next 10 years is an internal board (Atomic Safety and Licensing Board) with final licensing authority and an active part in the development of regulatory standards and rules (over which the Commission would retain final authority). This plan is set forth in some detail in Part VI of this study. It concerns only regulatory functions and does not extend to changes in the Commission's structure for operational and developmental functions.

The Board would consist of three members, appointed by the President with the advice and consent of the Senate. Two of the members would be technically qualified and the third would be skilled in the conduct of administrative proceedings.

The Board concept has the advantage of obviating the present difficulties inherent in the merger of adjudicatory and promotional responsibilities within the AEC while preserving the opportunity for easy communication between regulatory and nonregulatory staffs. This should result in increased public confidence in regulatory actions. This plan has the additional virtue of avoiding multiplication of administrative agencies.

The Board would also provide an initial hearing before a technically qualified group which would be competent to pass upon the substantive safety questions rather than merely the legality of the proposed action. By virtue of its technical competence, the Board could, with discernment, pass upon questions submitted by the staff as

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to which cases and problems should be referred to the ACRS, and to the formal hearing process.1

In addition, the Board would be a full-time group which could devote more time to the consideration of regulatory standards and policies. The Board, as its functions evolve, would be expected to review existing AEC regulations and recommend changes and new regulations where needed.

There are, of course, disadvantages to the plan for an internal board. Difficulties might arise from the separation of rulemaking and adjudicatory functions, since the Board might be out of sympathy with rules promulgated by the operating agency. One can also see prospective danger if the Board were to become too safetyoriented and hinder atomic energy development through unnecessarily strict rulings. However, both risks would be greatly increased if a separate agency were created.

It is apparent that this plan does not provide a fail-safe device for atomic energy licensing, but its adoption would strengthen and simplify the AEC's regulatory process with respect to both problems of materials and facility licensing. As noted earlier, the choice of a new organizational arrangement is, in large measure, a function of the time at which the choice is made, the regulatory workload of the Commission, and the state of technological development. The staff study concludes that, at least for the developmental period ahead, an internal Atomic Safety and Licensing Board will best serve the Nation's atomic future.

1 It is contemplated that the statute creating the Board would require that all important or novel safety questions involved in any case subject to the hearing requirement would be submitted to the ACRS.

IMPROVING THE AEC REGULATORY PROCESS

PART I—BACKGROUND

When Congress amended the Atomic Energy Act in 1954, the regulatory responsibilities of the Atomic Energy Commission were significantly increased. The 1954 amendments permitted and encouraged private industrial participation in the construction, ownership, and operation of nuclear reactors, but at the same time required the Commission to regulate these reactors to protect the health and safety of the public. The 1954 amendments continued the preexisting responsibilities of the Commission to license the nuclear materials defined in the act.

In 1956, after 2 years of operation under the 1954 amendments, Senator Clinton P. Anderson, chairman of the Joint Committee, directed the committee staff to undertake a study of AEC procedures and organization in the licensing of reactor facilities. That study, published in 1957 as a Joint Committee print,1 considered three questions specified by the chairman: (1) Whether public hearings should be required on applications for facility licenses; (2) whether reactor safety reports by the Advisory Committee on Reactor Safeguards on such applications should be made public; and (3) whether the regulatory functions of the Commission should be separated from its nonregulatory functions.

In August 1957, Congress, on the recommendation of the Joint Committee, further amended the Atomic Energy Act to require a public hearing on applications for construction of major facilities such as power and test reactors. The amendments also established the Advisory Committee on Reactor Safeguards (ACRS) as a statutory committee, and required a public report by the ACRS on all applications subject to the public hearing requirement. The 1957 amendments did not require changes in the licensing of small reactors or nuclear materials, or in the AEC organization, although AEC subsequently made several internal organizational changes affecting the regulatory process.

In 1960, after 3 years of experience under the 1957 amendments, the AEC regulatory process again was reviewed by the Joint Committee. In February, during the section 202 hearings, Chairman Anderson raised the separation of functions question:

I wonder if there is not going to come a point in the work of the Commission at which the regulatory and licensing functions might be split off from those functions which deal with the development of isotopes and the planning of atomic powerplants in Antarctica, or some place of that nature.

"A Study of AEC Procedures and Organization in the Licensing of Reactor Facilities" Joint Committee Print, 85th Cong., 1st sess. (1957).