ML19206A641
| ML19206A641 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 10/17/1977 |
| From: | Dircks W NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| To: | SENATE |
| Shared Package | |
| ML19206A643 | List: |
| References | |
| NUDOCS 7904200319 | |
| Download: ML19206A641 (5) | |
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Docket No. 50-320 The Honorable H. John Heina, III United States Senate Washington, D. C. 20510
Dear Senator Heinz:
Thb is in reply to your inquiry cf September 21, 1977 enclosing several items of cer espondence from one of your constituents, Mr. Carl J. Jarbce, relating to the ccaduct of licensing proceedings by the Nuclear Regulatory Ccmmission and its Atomic Safety and IJcensing Boards. Specific reference is made to the hearing recently held in Harrisburg, Pennsylvania pertaining to the licensing of tS TFree MIIe Island Nuclear Station, Unit 2, and to a newspaper column sud art cla dealing witn tha proceeding concerning Consumers Power Ccmpany's i
Midland Nuclear Plant and two Court of Appeals decisicas invoW.ng the NRC.
Mr. Jarboe's concerns, which were fully set out in his letter to the Honorable Willia.n GWNg, dated August 3,1977, a copy of which was attached to his letter to you, appear to bear on two distinct matters --
G) the time available to prepare material fer presentation to a meeting of the Commission's Advisory Ccmmittee on Reactor Safeguards (ACRS),
sud (2) the opportunity fer participation in NRC evidentiary proceedings by way of a limited appearance pursuant to the Commissicn's Rules of Practice, specifically section 2.715 of 10 CFR Part 2.
At the outset, it should be stressed that the two proceedings identified above, tha meeting of the ACRS and the evidentiary hearing before the Atomic Safety and Lt-+g Board designated to preside in this particular case, sre completely separate activities. Under the Atomic Energy Act of 1954, as amended, all applicatienz for either construction permits cr operating license.s are referred to the ACRS for its review. The ACRS is an independent advisory committee composed of 15 members appointed 1,
by the Cammission from the academic and nuclea~ industry ccmmunitics to advise the Commission regarding, among other things, the hazards of p;
proposed reactor friimes and the adequacy of proposed reactor safety ahdards on the ham of its review of applicaticne referred to it.
This h[
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'The Honoracle H. Joan Heinz, III review is separate from the reviav cf an application performed by the NRC Staff. The conduct of meetings f the ACRS anci its subcommittees is governed by the Federal Adviscry Cem=ittee Act and the Commissicn's i=plementing regulations found in 10 CFR Part 7. Pursuant t. section 7.11(b) of Part 7, notice must be published in the Federal Regist v at least 15 days in advance of any meeting, except in emergency situations when shorter notice may be given. Additionally, section 7.ll(c) suggests that other forms of notice, such as public releases should be used. In accordance with the regulations, timely notice was publisnec in the Federal Register on September 9,1976 (41 F.R. 33223) and, as indicated by Mr. Jarboe, a notice was published in a local newspaper. The Federal Register notice mvided that an individual could provide 15 copies of any written state-
.t at the meeting itself or could mail a copy to the ACRS. The date ggested for mailing material, September 17, 1976, was selected to allow
.or maiHng time and allowed eight days after the notice was published for mailing such statements. However, as Mr. JarLoe points cut, publication of notice in the local newspaper on September 16, 1976, unfortunately left only one day before the suggested mailing dats. However, this date, September 17, 1976, was not a reandatory cut off for the submission of statements nor did it preclude the presentation of statements on the day of the meeting.
The seemingly greater concern expressed by Mr. Jarboe bears en notifica-tion of the evidentiary hearing in this proceeding and participation by way of a limited appearance. This limited type of participation is provided by the Commission's Rules of Practics, specifically,10 CFR i 2.715. Regarding the questic of notification, a notico scheduling the hearing was published in the Fede a. Register on March 24,1977 (42 F. R.15984) and a praas release was issued on March 25,1977, each indicating that the hearing would commence on April 5,1977. As noted by Mr. Jarboe, his ietter seeking information on the hearing had been referred by Mr. Muller of the ACRS to Mr. H. Silver, the Staff's Licensing Project Manager for the Three Mile Island, Unit 2 project. We regret any inconvanience the lack cf reply may have caused; however, in the days immediately preceeding the hearing, Mr. Silver was deeply involved in the preparation of the Staff's testimony.
Mr. Jar nos correctly states that persons who wish to make a limited appearance statement are not required to give notice to the presiding Board; the Notice of Hearing initially published does, however, suggest that prior notice of intent to make a limited appearance statement be given. This permits the presiding Board to better schedule a proceeding to allow all such statements to be given without undue delay in the
_ evidenHay hearing. _
69-3:5
The honoracle ti. John netn,111 With respect to the need to provide copies of written statements, another matter Mr. Jarboe raises, this requirement is imposed also for the purpose of assuring the conduct of an orderly proceeding. Since there are citen many perscas who wish to make limited appearance statements, Loarcs usually impoise scme rear.cna' ole time constraint on the presentation of cral statements. Persens are free, however, to submit copies of written state-ments without limitation on losgth for inclusion in the record; they are bound in the transcript, and, for that reason, sufficient copics must be pro-victed to the reporter by te person making the statement.
The policy behind the Commission's regulation providinr. Ecr particip. tion by way of Lmited appearance is set out in Appendix A to 10 CFR Part 2, specifically in section III(b) and V(a)(4)--(6). As set forth in these pro-visions, lin.ited appearance statements are suisject to the discretion ci the Board. Relevant to its exercise of this discretion, the Board must consider the conduct of the evidentitry hearing and the tights of the parties alereto.
Thus, it is sometimes not possible to accommodate or schedule limited appearance statements at certain times, to allow more than one statement by the same person or to allow oral statements of extreme length to be made. The record in this proceeding indicates that the Boru d war most liberal in exercising its discretion; it allo.ce 1 one oral statement to be made which took more than one hour to prerent and 2%rded Mr. Jarbce an opportunity to make two statements.
Mr. Jarboe has expressed concern about a statement attributed to th2 Chairman of the presiding Bcard in response to a question he raised.
Unfortunately, Mr. Jarboe appears to have misunderstood the import of the Chairman's reply. Mr. Jarboe had inquired; "Is the granting of a license for Unit 2 contingent upon a satisfactory response to any or all. of my questions?' The Chairman replied. "...nothing stated by way of limited appearance constitutes evidence. It is not in any manner material on which me can base our decisica on these cases." (Emphasis added, Tr. 2756) The sigMhce of the Chairman's statement should be ampli-fled. Commission proceedings such as that pertaining to Three Mile Island, Unit 2, are quasi-judichi, adversary proceedings although such proceed-ings are not beund by strict application of the rules of evidence applicable in a court. Any decision rendered must, nevertheless, be based cn rele-vant competens and material evidence of record including the oral testimony of individuals under oath. Such evidence can be presented only by a party to the proceeding.
A person mhg a limited appearince statement is not a party tn Ote proceeding and such a statement. not made under oath nor is it subject
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-s-weight given to such a statement woulJ. be violative cf te procesa rights of the parties. Nonetheless, such statements de a most valuable purpose. they ahow any anc all members c' the public an opportunity to express their views ed concerns about a particular project, pro or con, and to have their relevant questions mswered.
Frequently, because of the number of the limited appearance statements made, vral and written, and their complexity, replies to questicas raised in the statementa cannot be made at the hearing but must await review and preparation subsequently. In the case of this proceeding, in which the record was closed July 5,1977, the Staff is preparing responses to all televam.;uestions raised in the limited appearance statements made.
Additionally, Mr. Jarboe has suggestad that at the Three Mile Island Nuclea-Station hearing in Harrisburg, the intervenors were denied the right to intro-duce a document on radiation danger and another on the compart.tive eficcts of coal and nuclear power. This, he asserts, is analogous to the situation in the Consumers Power Company case (Midland Nuclear Plant) "in which the NRC censured Myron Cherry for unearthing crucial testimony."
Regarding, the first of Mr. Jarboe's allegations, the presiding Atomic Safety and Licensing Board in the Three Mile Island proceeding did not permit the introductbn of certain material offered by intervenors for a very fundmental legal reason - the intervenors did not provide wit-nesses to support this material who could be cross-ermined by the other parties. This very basic requirement must be observed even in admini-strative proceedings such as those conducted by the NRC in which the strict application of judicial rules of evidence is not required.
Concerning his analogy with the Midland proceeding, the Staff's motions to censure Mr. Cherry were not in any way based on h'- % nearthing t
crucial testi mony'. I want to assure you that the NRC St; t no desire to stifle Mr. Cherry's full and effective representation of..
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interest. 11owever, there is a sharp distinction between vigorous advocacy and conduct which abuses, cui demeans the presiding tribunal, the parties, or their counsel. It is on such abuses that the Staff's motions were based.
Tbn premieling Atou ic Safety and Licensing Board has not yet taken any action on the Staff's motions.
With respect to the second matter raised by Mr. Jarboe, implying that the Three Mile Ishnd hearing proceeded on the basis of generalitica not sub-ject to vigorous probing and that criticiszas were ignor d without answer, e
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The honoracle H. John heinz, III,
it should be stated that all evidence effered by any of the parties was sub-jected to careful examination on the record over the course of this hearing which is fully reflected in the transcript of over 3,000 pages. The Board is still considering the record and has not yet issued a decision in this proceeding.
If I can be cf any further assistance, please do not hesitate to call upon me.
Sincerely, (s: red) C a' '. MS Wiiu2m 1 C9ths Assish:-t Exen.$ 'a >de-fer C;rar.rs DISTRIBUTION:
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NRC FORM 318 (9-76) NRCK 0240 D u. a. eovananeswr easemaae OFFTCSa 0976a.Gae eu 59-239
The Honorable H. John Heinz, III With respect to the need to provide copiee of written statements, another matter Mr. Jarboe raises, this requirement is imposed also for the purpose of assaing the conduct of an orderly prcceeding. Since here are citen many persons who wish to mal.e limited appearance stat ents, Boards usually impose some reasonable time constraint on the, recentation of or::.1 statements. Persons are free, however, to submit e les of written state-ments withcut limitation on length for inclusion infe' record; they are bound in the transcript, and, for that reason, suff tient copies must be pro-The policy behind the Commission's regulation poviding for participation by way of limited appearance is set out in Appe;6 dix A to 10 CFR Part 2.
specifically in section Illb) and V(a)(4)-(6)
As set forth in these pro-r visiens, limited appearancoestatements are bject to the discretion of the Board. Relevant to its exercibe of this dis etion, the Board must consider the conduct ci the evidentiary b' earing anfthe rights of the parties thereto.
Thus, it is sometimes not possible'to acepm=odate or schedule limited appearance statements at certain tim'ea,f o allow more than ona statement t
by.he same person or to allow oral stltements of extreme length to be made. The record in this proceeding /in'dicates that the Board was most liberal in exercising its discretion; (t allo \\ed one oral statement to be made which took more than one ho to pr'esent and afforded.ifr. Jarboe an opportunity to make two sta ' ents.
Mr. Jarboe has expressed con /
cern about a statemynt attributed to the Chairman of the presiding Boa'rd in response to 'a. hestion he raised.
Unfortunately, Mr. Jarboe ap' pears to have misundehtood the import of the Chairman's reply. Mr. Jair,boe had inquired: 'Is thehranting of a license for Unit 2 contingent up a satisfactory response to ' ' or all of my questions?" The Chairm a replied: "...nothing stated' y way of limited app earance constitu te s 'e'vid ene_e. It is not in any usanner materiti on e
which we can base o decia!cn on these cases." (Empha 's adaed:
Tr. 2756) The sig cance af the Chairman's statement sh uld be ampti-fled. C-4esion poceedings such as that pertaining to T' ee Mile Island, Unit 2. are quasi-pdicial, adversary proceedings although uch procead-ings are not b by stric s application of the rubs of evidence applicable in a court. An decision rendered must, nevertheless, be ba's'ed on rele-vant, competent and material evidence of record including the cral testimony of individual / under oath. Such evidence can be presented only by a party to the proceeding.
t A person m= king a limited appearance statement is not a party to the proceeding and such a statement is not made under oath nor is it subject to cross-namination by t' e parties to the proceeding; any ecisional orr.c a w SURusA.sg M oavr
- NaCfeaM 318 (9 76) NEms 0240
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59~240
fne nuncrable 11. John Heinz,111.
weight given to such a statement would be violative of the cue proccas rights of the parties. Nonetheless, such statements do serve a most valuable purpose; they allow any and all memebers of the public an opportunity to express their views end concerns about a particular pr 'ect, pro or con, and to have their relevant questions answered.
Frequentgbecause of the number of the limit ppearance statements made, oran and written and their complexity r lies to questions raised in the staterenh cannot be made at the hearin but must await review and N
preparation subsequently. In the case of thi,s proceeding, in which the record was closed Ju 5,1977, the Staff is pr eparing responses to all relevant questions raise in the limited ap earance statements made.
Additionally, Mr. Jarboe has aggested at at the Three Mile Island Nuclear Station hearing in Har-isburg, h inte,rvenors were denied the right to intro-duce a document on radiation dangh did another on the comparative effects of coal and nuclear power. This, hehserts. is analogous tc the situation in :.he Consumers Power Company epse idland Nuclear Plant) 'in which the ArdC censured Myron Cherry fp une hing crucial testimony."
Regarding, the first of Mr. Jarbyle's allegation, the presiding Atomic Safety and Licensing Board in tpe Three Mile Isl d proceeding did not permit the introduction of cer -
material offered intervenors for a very fundamental legal reaso - the intervenor's d ot provide wit-nesses to support this mater who could be cross-exaxiined by the other d
parties. This very basic re/qt irement must be observed ven in admini-strative proceedings such a those conducted by the NRC which the strict application of judic rules of evidence is not requir
/
Concerning his analotygrith the Midland proceeding, the Staff' motions to censure Mr. Cherryyere not in any way based on his 'uneart ing crucial testimony". I ant to assure you that the NRC Staff has no esire to stifle Mr. Cherry' and effec'ive representation of his clients interest. However, ere is a sharp distinction between vigorous advocacy and conduct which uses and demeans the presiding tribunal, the parties, or their counsel. I is on such abuses that the Staff's motions were based.
The presiding A c Safety and Licensing Board has not yet taken any action on the Staff' motions.
With respect to e second matter raised by Mr. Jarboe, implying the t the Three Mile Island hearing proceeded on the basis of gmeralities not sub-ject to vigorous probing and that criticisms were ignored without answer, 6-e.
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NRC PORM 314 (9J6) NRCM 0 43
- u. a. sovsmaneswv eneserises omcre sore - es-59 261