ML062560472
| ML062560472 | |
| Person / Time | |
|---|---|
| Site: | Palo Verde  |
| Issue date: | 09/13/2006 |
| From: | Mike Farrar, Hawkens E, Nicholas Trikouros Atomic Safety and Licensing Board Panel |
| To: | |
| Giitter, R L | |
| References | |
| 06-846-02-EA, IA-05-053, RAS 12231 | |
| Download: ML062560472 (4) | |
Text
UNITED STATES OF AMERICA RAS 12231 NUCLEAR REGULATORY COMMISSION DOCKETED 09/13/06 ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: SERVED 09/13/06 Michael C. Farrar, Chairman E. Roy Hawkens Nicholas G. Trikouros In the Matter of Docket No. IA-05-053 DALE L. MILLER ASLBP No. 06-846-02-EA September 13, 2006 ORDER (Requiring Additional Information Regarding Proposed Settlement)
Two days ago, the parties to this enforcement proceeding, which arose out of the Davis-Besse reactor vessel head problems of several years ago, filed a joint motion asking this Board to dismiss the proceeding by entering the proposed settlement order that accompanied the motion. The joint motion and the proposed order indicate that the parties have reached an agreement to settle the case. To that end, the documents set forth the steps Mr. Miller has agreed to take in order to have the original enforcement order -- which had banned him, effective immediately, from all work in the regulated nuclear industry for five years --
superceded by the new Order accepting the settlement agreement.
In keeping with long-standing NRC policy, the Board certainly wishes to encourage the parties settlement efforts. But any settlement agreement must comply with agency regulations, including 10 C.F.R. §§ 2.203 and 2.338. As submitted, the agreement does not so comply, and thus we must require that additional information be supplied before we consider approving it.
In the first place, those regulations require that the proposed settlement agreement must contain certain information (see 10 C.F.R. § 2.338 (h)(1)-(4)). None of that information is present here.
2 Second, the regulations require the parties to state the reasons why [the settlement]
should be accepted (10 C.F.R. § 2.338(g)), but the papers fail to make any such statement.
This omission prevents this Board from performing its regulatory duty of approving the settle-ment based on giv[ing] due consideration to the public interest. Seqouyah Fuels Corp. and General Atomics (Gore, Oklahoma Site), CLI-94-12, 40 NRC 64, 71 (1994); see also 10 C.F.R.
§ 2.203 (settlement shall be subject to approval by the Board, which may order such adjudication of the issues as [it] may deem to be required in the public interest); id. § 2.338(i)
(to same effect).
We are mindful that, in reviewing the proposed settlement in the course of exercising our approval authority, we must accord due weight to the position of the Staff. 10 C.F.R. §§ 2.203 and 2.338(i). We cannot, however, accord deference to the Staffs position regarding the public interest when the Staff fails to state why a settlement is consistent with that interest. In short, to give due weight to the Staffs position, we must be supplied with at least colorable supporting reasoning for that position.1 This is not to gainsay the remarkable educational and deterrent effect -- and the consequent benefit to the public interest -- that could stem from the talks that Mr. Miller would give under the terms of the agreement. And we are certainly in no position to have any idea of our own as to his guilt or innocence of the original charges the Staff leveled against him, or of the extent, if any, of his involvement in the underlying Davis-Besse transactions.
1 The Staff may think that paragraph five of the proposed Order supplies that reasoning.
In the circumstances of this case, however, where - after years of investigation - the Staff concluded that Mr. Millers conduct warranted the imposition of the harsh penalty of depriving him of his chosen livelihood, effective immediately, for five years, we believe that the regulations require more than what is essentially a mere ipse dixit assertion by the Staff that the settlement deserves approval. We do not suggest that the Staff lacks an adequately supported reason as to why settlement is in the public interest; we simply need to be advised of it.
3 But unless our role is only that of the proverbial rubber stamp -- and the regulations make clear that our role is more than that -- some additional substantive information is required to earn our approval. Because the proposed agreement must in any event be reconfigured to comply with Section 2.338(h) of the agencys Rules of Practice, it should be an easy matter to incorporate the additional substance at the same time.
Accordingly, the relief sought by the joint motion is hereby DENIED, without prejudice to the early submittal of a renewed motion which meets the form and provides the substance required by the Agencys regulations.
It is so ORDERED.
THE ATOMIC SAFETY AND LICENSING BOARD
_____[original signed by]___________
Michael C. Farrar, Chairman ADMINISTRATIVE JUDGE
_____[original signed by]___________
E. Roy Hawkens ADMINISTRATIVE JUDGE
_____[original signed by]___________
Nicholas G. Trikouros ADMINISTRATIVE JUDGE Rockville, Maryland September 13, 2006 Copies of this Order were sent this date by e-mail transmission to counsel for the parties.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
)
DALE L. MILLER ) Docket No. IA-05-053
)
)
(Enforcement Action) )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB ORDER (REQUIRING ADDITIONAL INFORMATION REGARDING PROPOSED SETTLEMENT) have been served upon the following persons by U.S. mail, first class, or through NRC internal distribution.
Office of Commission Appellate Administrative Judge Adjudication Michael C. Farrar, Chair U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Administrative Judge E. Roy Hawkens Nicholas G. Trikouros Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 Sara E. Brock, Esq. Jane G. Penny, Esq.
Mary C. Baty, Esq. Thomas W. Scott, Esq.
Office of the General Counsel Killian & Gephart LLP Mail Stop - O-15 D21 218 Pine Street U.S. Nuclear Regulatory Commission P.O. Box 886 Washington, DC 20555-0001 Harrisburg, PA 17108-0886
[Original signed by Evangeline S. Ngbea]
Office of the Secretary of the Commission Dated at Rockville, Maryland this 13th day of September 2006