ML19276F862
| ML19276F862 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 03/16/1979 |
| From: | Engelhardt T, Olmstead W NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Deale V AFFILIATION NOT ASSIGNED, Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 7904120399 | |
| Download: ML19276F862 (2) | |
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Q%%; c r, Valentine B. Deale, Esq.
Margaret M. Laurence, Esq.
1001 Connecticut Avenue, N. W.
5007 King Richard Drive Washington, D. C.
20036 Annandale, Virginia 22003 Gary L. Milhollin, Esq.
1815 Jefferson Street Madison, Wisconsin 53711
Dear Sirs and Madam:
This responds to your request of February 23, 1979, in response to Chairman Hendrie's earlier request, for comments as to how the Commission's regulations for handling attorney disciplinary matters in adjudicatory proceedings might be irproved.
The NRC regulations in 10 CFR s 2.713 presently provide that a presiding officer may, by order, suspend or bar any person from participation as an attorney in an NRC proceeding for enumerated reasons.
This regulation requires that the presiding officer's order shall state the grounds on which it is based.
It also provides that before any attorney is suspended or barred from participation in a proceeding, charges must be preferred by the presiding officer against the attorney and the attorney afforded an opportunity to be heard on those charges before a second presiding officer.
In the view of the NRC Staff, the provisions of 10 CFR s 2.713 when coupled with the broad authority of 10 CFR s 2.718 "to maintain order" are gen-erally adequate tools for a presiding officer to control the conduct of participants in a proceeding.
Experience in the Midland Special Proceeding, however, suggests that certain improvements in 10 CFR s 2.713 may be warranted.
In the Midland proceeding, charges were levied by attorneys representing the NRC Staff and Intervenors against each other. These bare charges served as the basis for the referral to the sacond presiding officer.
No findings were made on these charges by the first presiding officer before referral and no apparent effort was made by the first presiding officer to assess the validity of substance of the charges before referral.
Accord-ingly, the second presiding officer was presented with assorted unevaluated charges for consideration.
This resulted in an unnecessary amount of confusion, delay and effort in identifying the charges to be heard by the second presiding officer and in effectively dealing with the charges in an expeditious fashion.
79041203 %
.. This problem could have been avoided if 10 CFR S 2.713 had required a threshold showing as to the validity of the charges of misconduct by those making them and formal findings by the first presiding officer on those charges before the matter was referred to the second presiding officer for hearing.
The hearing before the second presiding officer could then have been focused on those charges which the first presiding officer had determined were of substance and ripe for being heard.
In view of our experience in the Midland proceeding with the application of 10 CFR S 2.713, it would be our recommendation that the regulation be re-vised to provide criteria for threshold showings by charging parties and to require the first presiding officer to make formal findings on the validity of those charges before referring the matter to the second presid-ing officer to be heard.
Such an improvement in the regulation would tend to remedy the problems experienced in the Midland proceeding.
Sincerely, J
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gm, Thomas F. Engelhardt Deputy Executive Legal Director
~5 William J. Olmstead Counsel for NRC Staff cc:
T. S. L. Perlman, Esq.
Milton V. Freeman, Esq.
Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Appeal Panel Docketing and Service Section