Relationship of the Nuclear Regulatory Commission to the Nuclear Industry

the Commission strongly opposes legislation which would give OI additional independence. This same reasoning leads us to conclude unanimously that OI should not be made part of the Inspector General's Office, if such an office is established.

Despite the need for the Commission to establish priorities for OI, that office now has and must continue to have the independence to determine how specific investigations should be conducted, and OI must be free to draw its own conclusions based on the information developed in its investigations, without interference from the Commission, the NRC staff, or others.

The Role and Effectiveness of the Investigation Referral Board

With the concurrence of the Commission, the EDO established the Investigation Referral Board (IRB) in November of 1986. Prior to the creation of that Board, the Commission had established a threshold for the initiation of OI investigations. Before an investigation was to be instituted there was to be (1) a reasonable basis to believe that wrongdoing occurred, i.e., the violation at issue appears more likely to have been intentional or to have resulted from careless disregard or reckless indifference than from error or oversight; and (2) there is a regulatory need for an investigation. The first threshold serves to differentiate what matters should be handled by the staff inspection process rather than by the investigation process. The second threshold is to determine whether additional information is needed before a regulatory decision is made. In some cases there may be sufficient information available so that an investigation is not warranted.

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Based on the agency experience in implementing these threshold criteria, the EDO became concerned that the five NRC regional offices were applying the criteria differently. Another matter of concern to the EDO was that the regions were also not uniformly applying other criteria that had been adopted by the Commission regarding what priority should be assigned to a given investigation. With five regional offices, many different types of licensees that conduct activities with differing potential hazards, and guidance which by necessity is broad, it is difficult to establish uniform agency-wide priorities. Recognizing that regions may have issues of varying importance (for example, a high priority in one region may be a normal priority in another region), the EDO thought it was important to establish an agency-wide priority listing to assure that OI's investigatory resources were being focused on the most important safety issues. For these reasons, the EDO recommended to the Commission that the IRB be established as a management tool to ensure that the matters being referred by the NRC staff to OI for investigation and the priorities being established were appropriate. The Commission agreed with the EDO and permitted establishment of the IRB in November 1986 for a six month trial period. The IRB was comprised of senior representatives from five major NRC offices. It met every two weeks.

The six months trial period for the IRB has now ended. The Director of OI and the EDO have provided the Commission with separate analyses regarding whether the IRB has served a useful purpose. The Commission is currently reviewing the matter and will provide the Subcommittee with the results of its review after we reach a decision.

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Inappropriate Contact between Licensees, and Commissioners,

Commissioners' Staff and NRC Personnel

The Commission is concerned that there have been allegations that there has been inappropriate contact between licensees and NRC personnel. The Commission has long recognized that a prerequisite for public confidence in the NRC's regulatory decisions is integrity in its decision-making process. To this end, the agency has long operated under ex parte and separation of functions rules that are more stringent than those required by law and more restrictive than those adopted by most federal agencies. With respect to Commission licensing and enforcement proceedings, all communications to the Commissioners, their personal staffs, and other Commission-level adjudicatory personnel on matters at issue in such proceedings by the NRC staff, licensees, license applicants, or interested members of the public, must be in writing and served on the other parties to the proceeding. Any oral communications of such a nature received by the Commission from these individuals must be summarized and served on the parties. Throughout the years these rules have been scrupulously observed by the Commission and its staff.

In fact, many have criticized the Commission's rules, stating that the rules should be modified to allow greater communication between the NRC staff and the Commission, so that the Commission will have greater access to necessary technical expertise. The Commission has proposed revisions to its regulations which will give it greater access to the NRC staff.

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The Commission's ex parte rules do not limit communications between the NRC staff under the EDO and licensees. The Staff is the Commission's first line of information on licensees' performance and requests. While mindful of their roles as regulators, the staff must be able to freely communicate with the regulated to assure the Commission has adequate information for decision making and to be sure that licensees understand our requirements. Nuclear power is not a technology where one can rely on after the fact enforcement as the primary way to assure regulations are followed. To assure the public health and safety we must be sure that licensees understand what our regulations require before a mistake is made. That requires communication.

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Relationship of the Nuclear Regulatory Commission to the Nuclear ..., Volume 4