ML19207B790
| ML19207B790 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 07/09/1979 |
| From: | Shapar H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Gilinsky V, Hendrie J, Kennedy R NRC COMMISSION (OCM) |
| Shared Package | |
| ML19207B785 | List: |
| References | |
| REF-10CFR9.7 NUDOCS 7909050275 | |
| Download: ML19207B790 (9) | |
Text
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o UNITED STATES
[ #'Q., g,h NUCLEAR REGULATORY COMMISSION u.t Q,. C WASHINGTON. O. C. 20555 s %~ w.f J G
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9 1979 MEMORANDU;i FOR:
Chainnan Hendrie Ccmmissioner Gilinsky Commissioner Kennedy
. Comissioner Bradford Comissioner Ahearne FROM:
Howard X. Shapar Executive Legal Director
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Lee V. Gossick
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Executive Director for Operations
SUBJECT:
DISCUSSION OF PROPOSED PROVISIONS RELATItiG TO HEARING TO BE CONTAINED IN COMMISSION'S FURTHER ORDER IN THE THREE MILE ISLAND UNIT l SUSPENSION PROCEEDING Introduction On July 2,1979, the Comission ordered that the Three itile' Island Unit I reactor remain in cold shutdcwn ccndition until further order of the Commission itself.
The Order also provided that the Ccmission would issue a further Order within thirty days specifying in detail the bases for its concerns, and the procedures to govern the hearing which the Comission directed be held prier to restart of the facility.
The Staff was asked to provide'(1) a listing of areas of technical concern to be resolved in connection with any restart of Three Mile Island Unit 1, and (2) a discussion of the Staff's views en the pro-cedures to govern further proceedings in this matter.
This memorandum addresses the matter of procedures; Staff views on the technical areas of concern will be provided by NRR on or before July 20, 1979.
The Ccmission's further Order should address at least the followi.ng matters relating to the hearing:
(1) jurisdictional structure, i.e.,
designaticn of presiding officer, acpellate jurisdiction, and decision form; (2) procedural framework; and (3) designation of issues to be heard.
This nemorandum exolores the alternatives available to the Commission and presents our reccmmendatica in the three areas.
It assumes that an adjudicatory-type hearing will be held and that the Ccmission itself intends to completa its review of the issues relating directly to restart of the facility prior te lifting the suspension of operation.
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- We further consider the hearing as one " required by statute" to which the adjudi-catory provisions of the Administrative Procecure Act apply; i.e., we treat the hearing centemplated by the Cc=ission's Order as the hearing vnich would be required by 6189a of the Atomic Energy Act if any person whose interest may be affected by this suspensicn proceeding shculd request a hearing.
If there should be no petition for leave to intervene frca an interested persen, the hearing would have been granted purely as a~ discretionary matter and the Cc=issien would have broad discretion to tailor procedures for such a hearing.
Since that event-uality seems very unlikely, we do not include a discussicn of procedures for con-duct of a purely discretionary hearing.
Jurisdictional Structure Under the Administrative Procedure Act, the Atcmic Energy Act, and the Cc=ission's regulations, the Commission can conduct the hearing itself or designate one of its adjudicatory boards to preside.
The Administrative Procedur.e Act requires that the presiding officer (or bcard) in an adjudication render an initial decision or a rec = ended decision,1/
except in cases involving initial licensing, past reasonableness of rates 7 or, possibly, when ene or more of the Cc=issicners themselves preside.' Administrative Procedure Act, 5 U.S.C. ss554(d) and 557(b).
This proceeding invcives sus:ension of a license and clearly cannot be construed as initial licensing.
Chotin v. FPC, 250 F.2d 394 (D.C. Cir. 1957).
See also U.S.' Senate, 79th Cong., 2d Sess.,
Lecislative Histcrv of the Administrative Procedure Act (Senate Occument #248) at pp. 2i6, 225, 292 (iW6).. i~ne suggest1cn or 11censee's counsel that there be an adjudicatory hearing board which woulc then certify the record to the Cc =ission for decisicn as was dcne in the Appendix I and ECCS rulemaking proceedings (where no initial or recc= ended decisicn was rendered) is, therefore, inconsistent with the Administrative Procedure Act. 2/
Hendrie dated July 2, 1979.)
(See letter frca G. F. Trowbridge to Chairman The major options available to the Cc=issicn en this questicn are set forth belcw, alcng with a discussicn of each option and. cur rec =endaticn for provisions of the Commission's anticipated Order.
-1/ The difference between the two in this instance is not great since the Cc =.issicn has already deteraired that it will review the record established in the hearing.
and render its cwn final decisicn. A recc= ended decisicn uis no, thing r. ore than that and requires agency review of the entire record and issuance by t.he agency of its cwn decision, while review of an initial decisica may be confined to the excepticas taken by an acpealing party.
2/ There is an exce:ticn which cerni:3 an agency to omit the initial or ac:= ended cecisica in cases "in wnich the agency finds on the record that due and timely executicn of its functions imperatively anc unavoitacly so recuirec."
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A.
Jurisdictional Structure Customarily Used in Initial Licensina Proceedinos Under this option, the'Commissicn would specify that an Atomic Safety and Licensing Board conduct the hearing and render an initial decision, which could then be appealed by an aggrieved party to the Appeal Board.
After Appeal Board decision, parties could petition for Commission review under 10 C.F.R. s2.785 or the Commission could review some or all aspects of the record on its own motion.
I Discussion:
This framework, relied on in most Commission licensing proceedings, is designed in part to -remove from the Commission the burden of complete review of all initial decisions by delegation of that review authority to an Appeal Board.
However, the Commission has already determined that it will itself exercise its review authority in this case. Accordingly, this course would entail the additional time associated with two distinct levels of appellate review rather than one.
It would, hcwever, assure that there would be two complete reviews of the decision regardless of the outcome or nature of the first review.
An additional potential advantage of this course of acticn would be the' opportunity for further refine-ment and focus of the record before it reaches the Commissica. On the other hand, there would appear to be.no compelling reason why participants in the proceeding could not adequately identify and focus the issues for a single (Commission) review.
B.
Designation of Atomic Safety and Licensing Board to Preside With Direct Review by the Commission Under this option, the Commission would direct that an Atcmic Safety ard Licensing Board preside over the hearing and render an initial or recommended decision, which would be reviewed directly by the Commission.
This suspension proceeding is not within the category of cases where the Commission has dele-gated to the Apoeal Board the authority to perform its review functions.
See 10 C.F.R. s2.785a.
The Commission review could be limited to consideration of exceptions or could additionally enccmpass sua sconte review of other issues which might appear frcm the record.
10 C.F.R. iZ.770(a). A variant of this
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option is to require the Licensing Board to certify the record to the Commis-sion with a recommended dacision.
5 U.S.C. ss55a(d) and 557(b).
See 10 C.F.R. 5h2.704(d)(2) and 2.750(b).
Discussicn:
This cption preserves the advantages of designation of a hearing board so that the Commission itself need not preside over the taking of evidence, but involves the Commis:icn in 'the review process promotiy ucon completion of ccmcilation of ~the evidentiary.
record and issuance of the initial decision. Accordingly, this option is probably the most efficient frcm the Commission!s standpoint.
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If the Commission intends review of the entire record, there is no' apparent reason to. prefer initial decision to certification of the record with recommended decision by the Licensing Board. 'If the Commission wishes to preserve the option of reviewing only the issues based on exceptions fi. led by a party (10 C.F.R. s2.770(a)),
then the Licensing Board would have to render an initial decision.
The Staff recommends that the Commission, in its Order, designate.
an Atomic Safety and Licensing Board to conduct the hearing and render an initial decision and that the Order provide for direct reviev of that decision by the Commission on appeal in the manner provided for by 10 C.F.R. 52.762.
C.
Designation of Atcmic Safety and Licensing Appeal Board to Preside With Direct Review by the Ccmmission This option is essentially the same as Option B except that a Soard drawn from the Appeal Panel would conduct the hearing and render the initial (or recom-mended) decision.
Discussion:
Clearly, a Board drawn from the Appeal Panel could ably conduct such a hearing. Mcwever, the practice of Appeal Boards' conducting evidentiary hearings has heretofore been limited and has usually developed to resolve discrete issues or in the context of a remand of issues when there had been diffi-culties in earlier attempts at their resolution.
Moreover, the Appeal Board docket continues to include the review of. all initial decisions within the Commission.
Should it be decided that a Board to hear the issues arising under the Ccmmission'.s Order should consist of two technical members, the designation of a Soard from the Appeal Panel might impose a particular burden upon the work of the Panel.
A variant of this option is to consider establishing a Scard drawn from members of both the Appeal and the Licensing Board Panels.
D.
Designation of-One or More of the Commissioners Themselves to Preside Dis cussion:
This option is expressly permitted by s7(a)(2) of the Administrative Procedure Act (5 U.S.C. s555(b)(2)).
This option would permit a fairly expediticus final decisien of the acency, since one or more members wculd have participated in the develcp-ment of the record.
However, for the advantage to be realized, the presiding Ccmmissioner(s) would have to have an essentially free calendar for the period of active hearings and mi' ht have to g
attend to rulings and other proceeding-related matters to the exclusion of other responsibilities. We assume that the Commis-sicn will desire that the hearings be conducted in the vicinity of the facility, thus placing an additional constrainc on the
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flexibility of the presiding Commissioner (s).
This option would have the advantage of providing closer contact between the Commission and the parties to the proceeding (and the affected public).
Within the limited time available, we have not been able to determine conclu-sively whether the APA permits certification of the record without recommended decision under this option, though section 5(c) appears to permit that course.
We are prepared to research the point further if the Commission wishes to pursue this option.
E.
Conduct of the Hearing by the Full Commission Under this option, the C0mmission would itself preside over the evidentiary hearings and render its decisicn after parties have filed with it proposed findings of fact and conclusions of law.
Discussion:
This option would, like Option D,. permit expediticus decision-making and provide maximum direct contact between the Commission and parties to the proceeding as well as the general public.
The Commission may find, ho..ever, that the price of seek-ing expeditious resolution of the issues through this method,is too high in terms of competing duties.
If, on the other hand, the conduct of the proceeding should be d'eferred to pennit the Commission's attention to other pressing duties, the advantage of expediticus resolution would be lost.
Procedural Framework As in other proceedings, the Ccamission must follow its cwn "egulations in determining what procedures should be folicwed in the conduct of this hearing.
It is a settled principle of administrative law that an agency must follow its cwn regulations.
Vitarelli v. Seaton, 359 U.S. 535, 539-540 (1959). Accord-ingly, those rules in suopart G of 10 C.F.R. Part 2 which apply to all the types of hearings described in 52.700 would be apolicable to this prcceeding.
These rules cover most aspects of the conduct of an adjudicatory proceeding and contain within them flexibility to assure orderly and expediti.ous resolu-tion of the issues.
See, for example, s2.711 (extension and reduction of time), 22.718 and 92.757 (authority to regulate the prcceeding), and 52.749 (su=ary dispositicn).
In its Order, the Commission could, pursuant to these regulations, shorten time limits, impose limitations on time for argucent in the prcceeding, and other-wise attempt to streamline the proceeding.
We have examined the rules of general applicability to cetermine wnether we shculd recommend to' the Ccmmissicn any particular scheduling innovations and have concluded that the proceeding shculd be concucted under the present orovisions of the regul Ations with, of ccur:e, the continued ciscre ionary authority in the presiding officer to m.ake rulings altering the usual time lini:2tions.
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The Comission does have the opticn, hcwever, of directing that the initial or reco = ended decision be rendered by e specified date, subject to extension by the Comission itself for good cause shown.
See Toledo Ediscn Ccmcany and Cleveland Electric illuminatino Ccmcany (Davis-Besse..uciear.-cuer Stat:cn).
4 ntC 601 ( 672).
xl:ernatively, a ' target cate" could be prescribed. We recc=end this latter course.
It avoids ccncern over the possibility of limiting the rights of any party to participate fully yet indicates the Comissicn's expectation that the proceeding be conducted expediticusly.
Such a date should be established in terms of a set nu cer of days after completion of the Staff's technical review and issuance by it of a Safety Evaluaticn.
There are certain provisions of subpart G vhich apply only to particular classes of preceedings. / Tee, for example, s2.715a (censolidaticn of parties) and s2.751a (special p7ehearing conference); both are applicable b
. air terms only to construction permit and operating license proceedings.y/ The Ccmissicn may direct that these be utilized for the hearing ccntemolateli for this proceed-ing, as well as order any other procedures ccnsistent.with fairness and not in conflict with its. regulations.
The detailed discussion of procedures below identifies and recomends certain such procedures.
Should the Comissicn wish to modify the precedures for this hearing in. a manner which directly conflicts with the present regulaticns, promulgaticn of new rules would be required.
Such rules cculd be promulga:ed withcut notice and cc=ent under the excepticn to sectica 4(a) cf the Acministrative ?roceduce Act (5 ;).5.C. 1555(b)) for
" rules of agency organizaticn, procedure, or practice."
We do not, however, perceive any need for rulemaking to establish procedures for this proceeding.
A.
Prehearine p'rocedures.
The Rules cf Practice provide for appropriate basic procedures relating to inter-ventica, icentificaticn of contenticas, specificaticn of issues, and discovery.
Ir. crder that the previsions of 52.714 relating tc intcr;cntica can be Empicyed, the Ccmmissicn's Crder shculd give notice of the time by '..hich petitions fcr leave to intervene may be filed. We recc=end twenty (20) days frc the date of publication of the Ccmmissicn's forthccaing Order.
(The Ccmmission's July 2 Order gives the licensee 20 days to file an answer.) We further recc=end that the provisicas of 10 C.F.R. ss2.751a and 2.752 be made a;;;1icable to.this hearing.
The special ; rehearing conference descriced in 52.751a provides an early cp::ortun-ity far resolving initial questions of standing and party status, admissibility of contencicns, and scheduling. The schedule of discovery cent ained in 52.740 is also tied to the prehearing ccaferences covered by ?!2.751a and 2.752.
This pre-trial structure helps assure an orderly progressicn to the trial of issues.
The Ccmission may wish to consider requiring, pursuant to 10.C.F.R. s2.712(i),
that the presiding officer cercify to the Cc =issica contested rulings on sucn matters as scope of a party's particicacica, admissibility of contencicnr, and scope of the proceeding.
5y ordering certificaticn of ccatested rulings in L
The Comissione'rs.
these matters, the acplication of.10 C.F.R.12.730(f) prchibiting interlocutory appeals is avoided in the primary areas where, if interlocutony apoeals are not permitted, an erroneous ruling by the presiding officer has potential to result in further hearings following the issuance of decision. 3/ Alternatively, the Co=ission could monitor the course of the proceeding such that it can direct certification of particular rulings made during the course of the proceeding, making the determination to do so on a ruling by ruling basis. The presiding officer also has. authority under.52.713(i) to certify questions at his discre-tion to the Co=ission for its determination.
We recomtrend that the Commission rely on these latter two mechanisms to provide for early resolution of appro-priate contested rulings made during the' course of the proceeding.
Additionally, we recc=end that the Comission order application of the provisicns of 10 C.F.R. 52.715a relating to consolidation of parties who have substantially the same interest that may be affected by the proceeding and who raise substantially the same question.
Instead of explicitly' requiring the applicability of these provisions, the Comission could direct that the presiding board, in the exercise of its authority under !s2.718 and 2.757, utilize any of these procedures which it' desms appropriate to the pro.ceeding.
-B.
Hearinc Procedures Most of the procedural considerations involved in the conduct of this eviden-tiary hearing are addressed in the rules which apply to all hearings under subpart G cf Part 2 of the Co missicn's regulations.
The issues covered by the shutdown order can be separated into issues which relate to the immediately effective suscension of oceration and issues which relate to the long-term operation of the facility.
The Comission can order separate hearings and decisions on the two types of issues, as is clearly con-templated in an analogous situation under 10 C.F.R. 52.761a. The Cc=i ssion's Order shculd make clear that its requirement of a hearing prior to any restart of the facility relates only to those issues whicn must be resolved before the Commission can make a determination regarcing restart. The suspension of operation ordered by the Comission prior to hearing (or opportunity for hear-ing) invokcs an extraordinary remecy.
See Section 9(b), Administrative Procedure Act, 5 U.S.C. 5558(c)',10 C.F.R. 552.202( f) and 2.2Cd.
It is justi-fied only so Icng as the bases supporting the action exist. The Comi ssion' has elected to determine through adjudicatory proceedings whether those bases are satisfactorilj resolved.
When and if, however, completed adjudicaticn 3./ If used, this option shculd be designed to avoid the potential (and likely) problem of certification of an unwieldy number of minor rulings.
The Cc ris-sicn could, of course, cecline to accept certification of particular rulings and could base its review of the ruling entirely on argument beica without
-(in mos: instances) near:ng rurther frca the parties.
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reveals that the bases are favorably resolved, the suspension must be lifted to restore the status oco prior to the extraordinary action.
See Northwest Ai rlines _v. CAS, 539 F.2d 748 (D.C. Ci r.1978). The hearings contemplated by tne Orcer should, then, be separated into hearing and decision on the issues requiring resolution. prior to any lifting of the suspension and the issues related to long-term operation of the faci.lity.
The. Commission may also wish to consider directing that the presiding officer certify to it certain contested rulings made during the course of hearings, although it should be made clear that the hearings are not stayed pending resolution of a contested ruling. The rulings which might be subject to such an Order include those which rule adversely on admissibility of evidence or qualification of expert witnesses.
In other words, rulings which, if erroneous, would result in reversible error would be appropriate for certification.
This procedure is designed to serve the same purpose described above in our discus-sion of certification of certain interlocutory prehearing rulings and, if used, should be similarly designed to avoid an unwieldy multiplicity of interlocutory revi ews. The alternative of directed certification of particular rulings during the course of hearings is, of course, also available and, we believe, preferred.
Under 10 C.F.R. s2.75d, parties may file proposed findings of fact and conclu-sions of law and briefs in supoort thereof prior to the issuance of an initial decision.
If the Commission elects to have the presiding officer (board) recommend a decision, it could rely on the briefing process preceding the' Board's recommendation and not take additional briefs.
If an initial cecision is rendered prior to Commission review, aggrieved parties will ha've the right to file exceptions and briefs thereon provided in 10 C.F.R. 52.762.
As discussed above, the Commissicn can elect to conduc.t a full reviev of the record or, if it provides for initial decision by a bcard, to limit its review to issues raised by parties filing exceptions to the initial decision.
The Staff feels that the Commission should retain, the option, pursucnc to 10 C.F.R. 32.770(a), to limit the issues to be reviewed and consider only findings and conclusions to which exceptions have been filed.
This.sould require no explicit refere~nce in the Order, but would require providing for initial decisica rather than rec:mmended decisica if a board is established to conduct the proceeding.
Designation of Issues The Commission's anticipated Order should designate the issues over which the presidi0g officer (board) is to have jurisdicticn. The sccce of these issues necessarily derives frca the nature and content of the Order, i.e., they are the issues which are relevant and material to the action taken under the Order.
We understand from the Office of Nuclear Reactor Regulation that the 5:aff's submittal to the Commission by July 20,19 79 will describe in detaii the bases for immediately effeccive suscension of operacion of the facility as weil as idencify scaci fic 'acticns unich shculd be ccmoler'd prior to li f:ing the sus-
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resume operation.
In addition, the Staff e <pects to identify certain Icng-term actions which should be completed as quickly as practicable-in order to provide continued reasonable assurance of safe long-term operation.
Therefore, the appropriate subject areas for consideration in the preceeding are as follows:
(1) Whether the actions required by the Order to be satisfactorily completed prior to resumption of operation are necessary 1/ and sufficient to provide reasonable assurance that the facility can be operated safely iri light of the bases for suspension.
(2) Whether the actions required by the Order to be satisfactorily com-pleted prior to resumption of operation have been or will be satisfactorily ccmpl eted.
(3)
Whether the licensee shoul,d be required to acccmplish, as pn mptly as practicable, the long-term modifications set forth in the Order.
(4)
Whether the long-term modifications are sufficient to provide con-tinued reasonc.ble assurance that the facility can be operathd safely over the long term in light of the bases for the requirement of these modifications.
Coordination This. paper has been concurred in by NRR. We have rece'. zed co=ents from OGC and have incorporated them in this discussion.
In conjunction with the NRR submittal'concerning the technical areas of concern to be addressed by the Commissicn, OELD will submit a draf t order.
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Howard K. Shacar
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Executive Legal Dired:or cc:
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$/ Should the necessity for any actica scecified by the Order be cnallenged by the licensee, that issue should be separated for early resol,u.icn. by the Scard anqi review by the Cc=issicn.
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