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# 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

Page Last Reviewed/Updated Friday, October 13, 2017