U.S. Nuclear Regulatory Commission

SECY-81-19 on Emergency Response Facilities

HPPOS-110 PDR-9111210247

Title: SECY-81-19 on Emergency Response Facilities

See the memorandum from M. G. Malsch to Chairman Ahearne

(and others) dated January 30, 1981. It is inappropriate

to use NUREG documents to issue quasi-requirements. The

memo provides a discussion of the various types of

quasi-requirements that are used within NRC.

General Counsel is having difficulty with the subject paper

which we would like to call to the Commission's attention.

In law school, law students learn from studying the

Administrative Procedure Act that all of an agency's

binding rules are published in the Federal Register (FR)

and codified in the Code of Federal Regulations (CFR).

After an individual has dealt with an agency for a few

years, they learn that sources other than the FR and CFR

must be consulted. This was already a fairly complicated

matter with regard to NRC requirements prior to TMI, what

with the extensive "gloss" placed on NRC's regulations by

various adjudicatory decisions, regulatory guides, branch

technical positions, standard review plans, and policy

statements. After TMI came a new breed of

quasi-requirements in the form of the TMI "Action Plan" and

related lists of near term operating license and (to be

issued in the future) near term construction permit

requirements.

Now comes the subject paper with the Staff's proposal that

a NUREG be published on the subject of emergency response

facilities. While the January 26, 1981 correction notice

clearly improves things, the NUREG still has the tone of a

formal document which imposes binding legal requirements.

Indeed, it is indicated at the outset in the "Abstract"

that the report describes facilities and systems "to be

used by nuclear power plant licensees" and that licensees

"should follow" the report. We are fearful that Commission

approval of this latest Staff proposal will be taken as

Commission approval to launch a new series of NUREG

quasi-requirements that will need to be added to the

current burgeoning list of NRC rules, adjudicatory

decisions, regulatory guides, branch technical positions,

standard review plans, and policy statements. Use of

NUREG's to issue quasi-requirements will be especially

confusing because even the most careful reader will be hard

pressed to distinguish such a NUREG from other NUREG

documents that are merely informational.

We can't say that this latest NUREG is the proverbial straw

that breaks the camel's back, but there will be some point

in the future when the expanding categories of NRC

requirements and quasi-requirements reach the point when

even the most experienced NRC practitioners (scientists,

engineers, and lawyers) will be totally confused as to what

is, in fact, legally required. This process should be

stopped before that point is reached. We suggest that the

NUREG be reviewed and that those features of the NUREG that

implement current regulations be issued in regulatory guide

form, and that those features that do not implement any

Commission regulation be considered for rulemaking. If

adoption of this suggestion is not feasible, then the

Commission could at least indicate that in the future

NUREG's should not be used to issue new requirements or

quasi-requirements.

Regulatory references: NUREG Documents

Subject codes: 12.7, 12.19

Applicability: All