ML19309E832
| ML19309E832 | |
| Person / Time | |
|---|---|
| Issue date: | 04/14/1980 |
| From: | NRC COMMISSION (OCM) |
| To: | |
| References | |
| REF-10CFR9.7 SECY-80-130, SECY-80-130A, NUDOCS 8004240471 | |
| Download: ML19309E832 (60) | |
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UNITED STATES NUCLEAR REG UL ATORY COMMISSION r
i in the matter of:
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DISCUSSION OF SECY-80-130/130A I
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P1 ace:
W shington, D. C.
Date:
April 14, 1980 Pages: 1 - 59 lNTERNATIONAL VERBAT1M REronTras, INC.
409 SOUTH CAPITCL STREID", S. W. SUITE 107 WASHINGTON, D. C. 20002 201 dea m 0
8004240 H1I
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UNITED STATES OF AMERICA 2
NUCLEAR REGULATORY COMMISSION 3
i-4
___---_-_-_-_____-__---__ x 5
.In the Matter of:
DISCUSSIONOFSECY-80-130/130Al 6
_------------_---.-----_.x 7
8 9
Commissioners' Conference Room 1717 H Street, N.W.
to Washington, D. C.
Monday, April 14, 1980 11 12 13 The Commission met, pursuant to notice, for presentation of the above-entitled matter at 2:00 p.m.,
34 John F. Ahearne, " Chairman of the -Commission, presiding.
15 16 BEFORE:
VICTOR GILINSKY, Commissioner g
PETER A. BRADFORD, Commissioner I9 JOSEPH HENDRIE, Commissioner 20 RICHARD T. KENNEDY, Commissioner 21 l
22 23 24 l
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CHAIRMAN AHEARNE:
The Commission meets this afternoon
! and we will attempt to refrain from interspersing remarks.
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,COMM. KENNEDY:
Speak for yourself.
CHAIRMAN AHEARNE:
We have been trying for some time 3
I and as the study that we are addressing shows it is not an issue.
[thatisnewinrecentyearstounderstandhowbestcanthecom-6 l
7 mission functio'n and how can it utilize the staff, how can boards 3
utilize the staff, how can the commission utilize the boards and 9
- approprdately come within the variety of constraints and particud to larly those established by separation of functions and ex parte 1I rules.
Sometime ago the general counsel agreed to undertake a 5
1
! study of this issue.
Mr. Shulman developed such a study.
It I-1 d
was sent out to some people for comment and we now have before i
lus the study...to sort of comments...and in addition, probably 14 II
- the most urgent matter a request to address a letter to two id
!Senate committees that have bills on modifying the 7dministrativ i
I i
Procedures Act in front of them and on which we had at an earlier i
18 jstage, in the set of comments, a committee to reply by April 15.!
19 i That I think is a fair summary of the situation.
So I guess, Le'n 20 COMM. KENNEDY:
By April 157 II l
CHAIRMAN AHEARNE:
I believe so. That's correct l
U 1-COMM. KENNEDY:
That's tomorrow.
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CHAIRMAN AHEARNE:
That's correct.
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COMM. KENNEDY:
Fortuitous that we are having this meeting.
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j BICKWIT:
Not fortuitous.
In that sense of the word. [
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CHAIRMAN AHEARNE:
I believe that certainly you do
,wish us to get to addressing that letter.
4
RESPONSE
That's right.
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CHAIRMAN AHEARNE:
And I think you also indicated a
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l earlier at the planning session that you would not be surprised i 6
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lif we required two meetings to address the study itself.
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So 3
! perhaps, I'll turn it over to you, Len and I'm nbt sure how you l
9
. wish to approach the subject.
Ordinarily I start out these k
10
- meetings with the assumption, making the assumption that you l
11 ihave read the papers This is an extraordinarily lengthy paper and I don't think you can necessarily make the assumption.
12 12 BICKWIT:
We haven't made that assumption.
i 14 CHAIRMAN AHEARNE:
But if...I would guess that you l
le
. ought to at least be working on some kind of a deadline...
r 16
- Recognizing that we will have to be coming back to this sometime' i
1-again what time would you like to break this?
I 1g COMM. HENDRIE:
Do you suppose we could get a summary l i
autline of the guts of the proposition in 20 or 30 minutes.
19 l
- o There are a couple of other views.
People have commented.
i' 21
! Allen's commented.
Others have commented.
There's a voting---
uh--we are able to vote here.
Could we then 3_.st see if we 23 couldn't do the business we have?
- 4 CHAIRMAN AHEARNE:
Yes, my (inaudible) was trying to
".5 aim him.
Do you want to break at 47 At 4:30?
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l COMM. HENDRIE:
I would hope we could be out of here
. at 4.
l CHAIRMAN AHEARNE:
Why don't you aim then at getting 4
' out by 4 so that with that kind of constriction, you're making s
sure that you want to get your letter.
i 6
BICKWIT:
As you said, we had a number of things that !
l 7
we are trying'to do and our view is that we can't get them all 3
done in a meeting but we will certainly try.
In light of the i
9 time pressure on the letter, we would propose to proceed as 10 follows:
After a presentation which should run about 30 minutes II
[, we would want to move first to an analysis of the basic options i
II
! A-D that are presented at'the end of the paper and see whether I
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we can get some guidance from the Commission on those.
We l
f would then want to turn to within option A and B, the various N
t I3 suboptions available to see whether gliidance is available f
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Id on those suboptions.
Then, no matter how long it takes to U
deal with those questions, at 3:30, if you are breaking at 4, we would want to turn to the letter that is before you.
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CHAIRMAN AHEARNE:
Is it necessary to reach decisions'.
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.g l on the options and suboptions in order to address the letter?
f 21 BICKWIT:
We don't believe so.
i CHAIRMAN AHEARNE:
Good.
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U COMM. KENNEDY:
We'll have time to hear also a few moments from Allen?
BICKWIT:
Yes.
Certainly.
Then probably at a 18s?Wapmaficuame. VU.maMes FM lMC
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i fseparatemeetingwewouldwanttoturntothequestion--the I
, entirely separable question of the relationship between adjudi-3
! cators of the agency--communications between the various boards
! and the Commission and within the boards of the Commission..We e
l also then might flesh out some of the details resulting from i
your general propositions.
I'd like to preface.
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CHAIRMAN AHEARNE:
We just started.
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BICKWIT:
the presentation with just a few remarks.
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- One is that we have reached some legal judgments in a very muddy 9
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area.
These judgments are our best guesses.
We are not at all i
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[ We do not at all regard those judgments as firm judgments.
Whe i
U we are talking about due process unless the courts have been D
l clear it's very difficult for lawyers analyzing the situation I
l to derive clear answers from the constitution itself and while.
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te we have given guesses as tc what makes the most sense as a re-,'
sult of our legal analysis, we are perfectly prepared to defend fl M
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contrary conclusions if the Commission tends away from those i
I8 judgments or for policy reasons wants to disregard those judg-l M
l ments.
And then I would also like to say that this study unique-i
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ly has been the work of one person.
And the reason you U
! haven't seen Harvey around this table is that he has been I
l laboring over this for quite some time and I think while the i
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l studydoesrepresenttheviewsofourofficeandhasgonethroudh i
i our normal supervisory processes and you should understand that.
it has been developed almost entirely by him with the assistance
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So Harvey will present this l
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! study as the person uniquely qualified to do that.
i SHULMAN:
At the risk of simplifying too much, on an Il important topic I will try to indicate what I think the study 4
i lisfocusingonandthentrytogothroughabriefsummaryof 6
the study and some of the comments and highlight those before l
l we get to a discussion.
I think that it's important to recog-7 s
nize that the study deals essentially with private communications 9
between decision makers and others.
Not on the record public l communications but the kind of private advice and consultation to 11 that has been of most concern to the Commission and in terms of i
12 those private communications between decision makers and others 13 l it focuses mostly on decision makers and the staff although as l
I the study does indicate there are options in terms of talking ta i
te to other levels of decision making personnel.
Now that is per f a
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Id haps a gross exaggeration, but it's important to keep in mind i
17 that we are talking about private matters and talking essentially ;
13 to the staff in such matters.
I also think that there perhaps i
19 l are two basic reasons why the commission is concerned with pri-l t
20 vate communications between decisionmakers and the staff. One i
21 i
is what I would call the upflow consideration, what information 22 comes to the decision makers from the staff.
And that is es-i 22 sentially related to whether those staff people can advise or 24 l participate in the decision of a case.
What information does i
25 the board--does the Commission need for the staff members to lee.Wfiennah VEuumaTMs REMarfWue lasC.
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I ijhelp them make a decision on a case.
The other type of communi-i lcationIwouldcallthedownflowcommunicationwhichrelatesto l !
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! supervision.
And that is what type of discussions, private dis-3 I cussions, would the Commission like to have with the staff, which,
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could guide the staff and supervise the staff in litigating cases generally or in litigating a specific case.
The first l
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- question of advice by the staff and participation by the staff I
l in a decision is applicable to communications between staff and 8
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i all levels of decision making.
The staff might advise the Board j or the Commissioners.
The second question of supervision and 10 i
what the staff is told to do is primarily a question of who the l Commission should talk to for purposes of litigating a case, al-l though we recognize that theoretically it is possible for the i
13 i
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l board -- the Appeal or the Licensing Board -- to advise the staff [
privately cs to what they should do recognizing that that type l of supervision is done now through published orders and opinionsi
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16 for more information etc.
O.K. within those general confines what does this study deal with?
Well, there's a lot of dis-i cussion of separation of functions and ex parte and I think it is important to note that technically those are two different
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issues--that when we are talking about separation of functions 21 3
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1 we are essentially talking about communications between differer}t i
people within an agency and particularly between people who de-23 cide a case and anyone else and we want to separate the adjudica-tory function from other functions which may or may not be in- !
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j consistent with that -- Litigation, rulemaking, preparation of i
- Congressional testimony and the like.
When we are talking about e
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i the phrase ex parte generally refers to communication $
ex parte,
! made to an adjudicator by one side in the proceeding 4
without i
3 other parties in the proceeding having notice of it. And that I
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4 term ex parte has mostly been used to describe communications 7
between people' outside the agency and people in the agency who 3
! make the decision.
The Licensing Boards, Appeal Boards, Commis-9
. sioners and their assistants.
The problem for the confusion f and really the history of what has happened at this agency is 10 11 that the ex parte rule has swallowed up the separation of func-i
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tions rule.
I am not going to go into a detailed discussion of I3 this but I think the study does point out that the rules arose I
14 in separate periods and what happened eventually is that communi-t II t
cations that were permitted by the separation of functions rule 14 were.then no longer permitted after the Commission adopted its I7
! ex parte rule.
II COMM. KENNEDY:
Was there some reason that was true i
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19 Harvey?
20 l
SHULMAN:
It is very difficult to define the reason 21
{ for that from what documents are available.
It's about 20 years.
I 21 old and I did get ahold of the old AEC documents but I think some i
23 j of that is discussed in the Rogovin and the Kemeny reports.
I
,'don't agree with all that was said there.
Their reasoning dealti 2
. with the separation between the promotional responsibilities of i
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2 go to the basic source documents you see that that was not pro I
l i bably the major thrust of the ex parte rule.
It was because of I
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! fairness and then it was that overall notion of fairness that i
3 i carried over into the separation of functions area.
Rightly or 6
wrongly.
O.K. keeping this difference in mind...
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l COMM. KENNEDYi Fairness in the sense that the objective '
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l was to make sure,that all parties to a proceeding were working l
9 from the same base of information.
10 SHULMAN:
I think in essence that is correct.
I 11 0.K.
I will talk mostly then of separation of functions although l
this does relate to the Commission's ex parte rule.
The first i 1:
!3 i major legal analysis in the study relates to the licensing--what 14 i
is called the initial licensing exemption.
Now the separation i
1.5 of functions rules come to the Commission statutorily through 16 Section 554 of the Administrative Procedure Act and basically l
thatsectionsayspeople..agencyemployeeswhoperformprosecut!
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{ ing or investigative functions in a case or related case can't i
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I 19 l participate or advise in a decision of that case.
But there
- o are certain exceptions to that rule and one exception says, if 21 it's an initial licensing case then this rule doesn't apply.
I 22 l
You don't have to have separation of. functions.
Well what is l
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an initial licensing case?
The study does point out that cer-j 24 tain things like operating licenses, construction permits are clearly initial licensing cases--
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l CHAIRMAN AHEARNE:
And amendments opposed by that?
l SHULMAN:
Amendments opposed by the licensee are ini-2
' tial licenses although amendments proposed by the Commission--
1 li at least formally proposed by the Commission -- are not initial r
' licenses.
Renewals, suspensions and revocations even on safety 6
- related grounds having nothing to do with the misconduct of the 7
' licensee are not initial licenses.
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CHAIRMAN AHEARNE:
But it is true that CP's and all 9
else are initial licenses.
10 l
SHULMAN:
This is true.
Now the basic reason for ini-11 tial licensing exemption is that initial licenses are more like f
a.
I rule making where policy issues predominate and we only consider 13 f acts insof ar as they reflect on those policy issues and they i
14 are not of critical concern.
fherefore since we don't require i l
13 under the APA separation of functions and rule makings, we If I
shouldn't require it in initial licensing cases.
That's a reading of the legislative l CHAIRMAN AHEARNE:
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12 history.
l SHULMAN: Yes.
20 CHAIRMAN AHEARNE:
But the law clearly-is initial j
21 licensing.
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SHULMAN:
Well, the law does talk in terms of initiali l
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licensing and as the study points out, the mere presence of the,!
initial licensing exemption, once you say a matter is an ' initial licensing case, would open up more avenues of communication to 1
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! communication to the Commission.
That is only under the APA re l
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2 quirement.
Now assuming the initial licensing exemption was
- abolished or assume that it was inapplicable in the case of the I
suspensions and revocations.
What sort of flexibility does the 4
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Commission have in those instances?
In our reading of 554 looks
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at the terms prosecutors or investigators.
Whoperformsprose-;
7 cuting or investigating functions?
You take a suspension case i
3 l where the Commission decides for example that there is a threat l
9 to the public safety and health and the license ought to be sus-
! pended until the plant is brought up to snuff.
In our review to i
11 of the legislation the staff assigned to litigate that case 1;
that the hearing has demanded would not be performing prosecuting
- 3 or investigating functions within the meaning of the statute.
I l And the reason is that when you go through this lengthy legis-
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te lative history and the normal meaning of proscuting or investi-t i
14 gating, you see that Congress appeared to have in mind an ac-l I
cusatory type proceeding.
If the reason for the agency taking i action was to say you violated certain statutes or you violated l 14 i
certain regulations, this reflects adversely on your character 19 i
- o or means that you are incompetent or that you otherwise should 21 not have a license.
Then the Commission wanted to afford pro-(
tection to the licensee or the applicant in that situation so I
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- n that the staff that was trying to prove that misconduct wouldn't t
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- 4 be the same people who were privately advising the decision l
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makers.
And so what this leads us to conclude is that for I
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for most of the cases that take place at the NRC whether they I
are initial licensing cases or not, the key question is are th'e 3
l accusatory or not.
If they are not accusatory, then there are I
! no staff members performing investigating or prosecuting func-4 i
f
- tions, and Section 554 doesn't tell you as a Commission who you l
6 can't talk to.
If the case 4
f, 7
CHAIRMAN AHEARNE:
Inside agencies 3
SHULMAN:
Pardon me?
I I
9 CHAIRMAN AHEARNE:
Who you can't talk to..inside agent 10 cies.
i II SHULMAN:
Inside yes.
If you are talking about an i
1 accusatory case, be it a non-initial licensing case, like a i
t 13 l revocation, or even an initial licensing case although this is l
open to doubt it appears that if you want to deny a license to Id 1.5 company X because you feel that they have bad character, they i
id are incompetent, they can't be trusted as evidenced by the fact!
I' they violated 97 regulations and statutory provisions from the f operation of the plant they already own, that may be an accusa-l 18
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l I9 tory proceeding.
In that type of accusatory initial licensing {
20 proceeding, and in accusatory non-initial licensing proceedings -
21 l
take away the license because they are bad folks, the APA does i
22 tell you you can't talk to the prosecutors or investigators f
i 23 in the case.
24 CHAIRMAN AHEARNE:
Is there a trigger time in that 13 occurred?
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j SHULMAN:
In Section 554 that isn't trigger.
Now I
the Commission's rules, of course, set up their own trigger, j
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which I think is probably what Congress would have intended.
' Once a matter is designated for hearing or an opportunity for
' hearing is posted, although it's also possible once you know I
- that there is going to be a hearing even though you haven't i formally announced it, it may trigger the separations rule.
7 3
But I think the major point to leave you with on this is that i
accident accusatory proceedings Section 554 of the APA places 9
1 10 very, very few limitations on who Commissioners can talk to.
l.
There is a separate provision there for presiding officers whichI 11 l
! we will get to later.
But.the flexibility is fairly broad undei g
I l the statute.
Now there are however, three major sources of i
l restrictions on interagency communications that come from some i
place other than 554 APA.
The first is the due process clause g
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! and the simplest thing I can tell you there is that our best l
i judgment on that is that in a non-accusatory case, an initial g,
licensing case which is contested by an intervenor, if this I
9 I
i Commission wants to talk to the trial advocates, the ELD attor-l 19 1
t let's say, who are trying that case, it is our reading of
' neys,
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the due process cases that that is likely to lead to a due pro-i g
cess objection which would probably be upheld by the courts.
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i And I will get into disagreements with that view in a few minutes g
4 when I talk about the comments that we've received,
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CHAIRMAN A7.LARNE:
I found Mr. Pedersen very persuasive.
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i SHULMAN:
Well, they are persuasive whether--
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COMM. KENNEDY:
Harvey, but the point -- to get away i from that -- when we say the advocates, are you...do you intend i
4 t my words to confine yourself to ELD lawyers or are we talking 5
about those who are in fact their witnesses?
The NRR staff, 1
6 for example.
I i
7 SHULMAN:
I think the question about staff witnesses 3
- is a lot murkier.
In our view, we felt that generally you coul?
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draw a distinction between the advocate charging into the court 10 room and saying, I'm here to take this position and I will cross i
11 examine the witnesses.
I will impeach witnesses.
I will write i
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up for post findings.
I will do what I can to make sure that i
I 13 I this position wins out.
The will to win.
It is conceivable i
l 14
! and I would admit it depends perhaps on this case.
It's con-i h
15 ceivable that staff witnesses are not going to have that type t'
16 of zeal and enthusiasm for victory that the typical staff at-l 17 torney does.
l 18 COMMISSIONER BRADFORD:
With all due respect to the 19 work you've done on this, I sure wouldn't want to rest a consti-20 tutional case on that proposition.
I can't imagine that those 21
! people would arrive at judgments themselves that e-eticular pro-l positions aren't every bit as committed to them--probably more l
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so than attorneys who are notorious for being able to defend
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24 both sides of the coin.
2 SHULMAN:
I think there is a lot of truth to that argu--
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- ment and maybe what tipped the balance for us here a little bit l
is that the cases seem to be clear to the exrent that they are i
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' clear at all on the validities -- on the attorney's issue more 2
i so than on the witnesses issue.
And most of the commentary also condemns the advice coming from attorneys more than it condemns
' advice coming from witnesses.
I think there is a rational dis-l tinction.
Whether you feel that's compelling enough to draw a 7
l constitutional distinction I think is another question.
But I i
l get into that a little later.
one thing I want to point out i
7 t
in leaving this due process description.
It is very signficant to me that -- it seems that it is universal that all agencies
! have rules which prevent advocates and particular trial attor-neys from advising on licensing cases or in non-accusatory cases 13 l
where they are performing functions similar to this agency.
,4 i
I The Federal Communications Commission, FDA, and there are l
1 i many, many agencies and to the extent that they make exceptions ;
and allow consultations--private consultations with the staff, i b,
l 18 it's generally for consultations with staff supervisors who are r
either not involved in all--in the actual case at hand or only 19 peripherally involved.
So I think that if you want this option.
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you ought to recognize that it is definitely striking out on i
rather new ground.
The second major source of restriction on your communication people which.is more difficult to understand U
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i is Section 557 of the APA.
Now 557 tells you who you can talk j
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with outside the agency.
Or more particularly, if someone is i
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l in a decisional process of an agency, 557 says they cannot have I
i ex parte private discussions with people outside the agency.
That, it therefore seems pretty clear to us that if you wanted 2
l l to talk to the Director of NRR and get his advice about how you I
should decide a particular case, that 557 would preclude the Director of NRR from engaging in off-the-record private conversa-6 i
tions with people outside the agency about the merits of the case.
I CHAIRMAN AHEARNE:
And.you believe the law is very 5
l clear.
9 SHULMAN:
I believe the law is -- I'd probably bet 10 l
half my salary.
I think it's fairly certain on that because 11 if you limit it...If you say only the ultimate decision makers 12 l are covered by 557, then Congress didn't beve to use the language
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I it did which was any employee involved in the decisional process I
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i and the Congressional repcrts make it clear that they are talk '
13 r
ing about more than just the ultimate detision maker.
14 BICKWIT:
Certainly the objective of the statute 6,
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would be frustrated if communications that were prohibited directly could take place anyway.
19 CHAIRMAN AHEARNE:
If the communications took place j
20 t
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i BICKWIT:
Yes, if they.took pldce.
21 j
CHAIRMAN AHEARNE:
Well, but I'm trying to draw a j
22 I
distinction and it depends upon whether that really was a con-23 i
duit.
i 24 BICKWIT:
Whether it was a conduit.
Sure.
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SHULMAN:
Well this maybe brings me to the second I
I I
problem under 557.
This I feel is less clear, but take the f
2 issue of the role of a staff member processing an application 4
and having frequent off-the-record discussions with the appli-
[ cant.
Now assume that you prevent the director of NRR from talk-
'l l
6
~ ing with outsiders because you want his advice on the issue 7
in the case and so the conversations with the outsider is about 3
.l the application are being done by the lower level staff.
What i
i 9
. type of....
I 10 j
COMM. KENNEDY:
Who are in fact responsible to the II Director of NRR.
i 12 SHULMAN:
Yes, and really that's where the problem i
13 comes in.
What type of conversations can most people have l with the people who are advising the commission?
I would say 14 i
e that -- well we are dealing in the area where the statute is I
i 16 a few years old.
There's virtually no traditional construction 17 of it.
The legislative history is pretty barren.
It appears 18 to me that the Director of NRR could still supervise those i
i 19 l people.
You could still have general policies coming down.
l 20
. Ycu might even be able to have specific orders coming down i
21
! about what to do in a particular case, but. one thing that seems 1,
I2 to be not permissible would be wehn the director of NRR is i
I t
23 coming to you and advising you could he in turn go to the staff.
24 and say, " Gee I'm advising the Commission on this matter.
t 2
Can you tell me what you think about issues X and Y so I can i-% v w i,.c l
,m wmm.,n.ar. t
=
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au s e --
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18 I
o c
peor.se.
i ltellthemwhatIthinkaboutissuesXandY.
And where they j
I 2
have been frequently and partly consulting with outsiders, 2
I and they then can turn around and advise the Director of NRR
!whointurnadvisestheCommission, it seems that those staff 4
i 3
members have become people who are involved in the decisional 6
process within the meaning of the statute.
And I think, you lknow,westruggletoseeifthatwasanunreasonableinterpre-7 l
3 l tation or compelling interpretation or however you want to I
9 phrase it and I think we came out that that was about the best !
10 conclusion we could reach under the statute.
That you would t
I1 l
be putting a crimp in the type of communications that the i
i 12
[ Director of NRR could have'with the staff if you wanted to talk 13 to the Director of NRR about how he decided the case and the Id staff continued to talk to people outside the agency about how If the case should be tried.
i 16 1
l CHAIRMAN AHEARNE:
How the case should be tried.
17 Is there another phrase or do you really mean talk off the 18
! record about the case,:
19 i
SHULMAN:
About the merits of the case.
i I
.g CHAIRMAN AHEARNE:
About substantive issues.
2I SHULMAN:
Yes or to use...this is not our language m
i
' That the statute talks communication relevant to the merits of '
l i
U
! theproceedingandthereisnodoubtfromthelegislativehis-l i
tory there that they mean that phrase to be interpreted rather i
broadly.
Z imftcuses. VWuenften h last
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as 30nffM SamTgs, gTuug7, & m, sufft :c, l
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CHAIRMAN AHEARNE:
Now is your interpretation...here l
i l we have the decision maker and here you have the party.
Now I gather that there is one interpretation that says the barrier I
must drop so that the party doesn't talk directly to the decisic 4
n I
3 maker.
Your construction I think is that the barrier must drop s
6 no matter where that link -- how that links established.
As I
7
! long'r.s there is somewhere that you can get a connection between 1
3 the party talking to X to Y to Z to alpha to beta to gamma, as 9
leng as there is that link, there must be a drop and that per-
[
i f son cannot talk to the decision maker.
I think that's essentia -
10
- 1 Jy correct.
I mean you might get to the point where it becomes i
1:
rather attenuated and nothing is left of the l
13 CHAIRMAN AHEARNE:
But in a 3000 person agency I l
i 14 suspect I
I i
i i
te SHULMAN:
0.K.
let me just go quickly to the third I
I point that limits your discretion.
Easier to state in the 14 17 abstract than perhaps to work out in the other case.
And i
13 that is the conversations you have with staff or others in
}'
19 the agency about how you-.should decide the case must relate f
- o to what's in the record for decision.
These people cannot 21 provide you new facts, new evidence, new data, statistics, new p calculations that do not come from the record.
They can talk I
23 to you in evaluating the record, understanding the record,
- 4 l
pointing out why they think argument A in the record is a bet-3 ter argument than argument B.
But the statute and due process i
infuse.atum ne. Vammenes Mamunfusa,l e me sun, rte casetus. svuurr, t e. marrt ist Z
ia 3. C. m
m
o c
p e c z.w e. 2 0 l
l
[ principles require you to consult with these people about 1
i i
t 2
, matters that have been brought to the attention of the parties i and yourselves through the record.
I 4
COMM. KENNEDY:
Can they do that..You said they can speak to you about why argument A is better than argument B, e
6 both being on the record.
Can they do that if there is already !
7 l in the record argument as to why A is a better argument than 3
l B by other parties?
l 9
l SHULMAN:
Yes, in other words, their advice to you 10 l need not be limited to merely duplicating every single statement I
11 on the record.
What they tell you must be based on the record.
'. In the case of arguments for example..let's take that and maybe.i 12 i
13 l take a compelling example where an applicant comes in for a i
ta i license and certain issues are contested and there are issues
!=
A-M that are raised as grounds for denying the license and you I
i I
16 i
then decide after talking with a staff person when the matter i
17 comes up to you that there is also issue ih prime and in prime la l or argument in prime for denying the license and nobody litiga-i 19 l ted that but it seems rather compelling to you.
It would be i
20 improper to base your decision and deny the license based on 21 l
an argument that nobody had a chance to rebut or to comment on l
to introduce evidence on etc. when the case was being tried.
I i
l l
II O.K.
I think so I think that that leaves us basically with j
24 indicating where we think the statute and the Constitution gives 3
you flexibility l
t m m. m v m m. n m ;,<
ase same cAmtm. rmarr. A s. sum ?st A a.C. amma
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21 l
occa.ec.
t CHAIRMAN AHEARNE:
Harvey, on that last issue, what I
I 2
you are fundamentally addressing is it not that the decision j must be based on the record?
SHULMAN:
Yes.
4 I
CHAIRMAN AHEARNE:
Are you saying that's a constitu-l 6
tional due process issue or is that an APA requirement.
7 SHULMAN:
Well, its both and I would say that in i
3 l varying degrees.
I mean there are clearly cases which ind3
.tei i
i' 9
that its a violation of due process, to CHAIRMAN AHEARNE:
Does the APA say that it must be t
it based on the record.
1:
SHULMAN:
The APA in Section 556 indicates that the r
l t
1 l
record, which they define, is the exclusive basis for the i
I I4 decision.
And there are other sections of the APA that also I
13 come into play.
O.K.
So now you know what the so-called legal t r
14 attitude is and now I've told you these restrictions of due l
17 process 557 and the record, you probably wonder what there is l
13 left that we can talk about.
t 19 CHAIRMAN AHEARNE:
No, No, because that is the opinion i
i i
2e advanced in your paper.
21 SHULMAN:
Yes, yes.
Well we'll get to the other But even under the OGC view there are lots of things that you I
i n
can do.
And I think our cover memo summarizes many of those.
24 For example, the agency heads, the Commissioners may consult
+
3 freely with agency staff in NRR and NMSS, I&E regarding review '
i INTWuseaftesame. VWuearles h lmC,
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I i
and investigation regarding the initiation of enforcement action.
f n
We saw this in the TMI 1 and 2 case.
You had a proceeding pend-t I
ing on one of those units and yet you were clearly discussing 4
'i
- matters with the staff which was continuing its investigation i
unrelated to a possible enforcement action on the other unit.
i 6
, And there is case law to support that.
It recognizes that an i
I 7
l agency has many functions to perform and to say that the separa-5 ltionoffunctionsrulesareabsolutewhenissue'soverlapand 9
reads different to those functions would be to paralyze the i
10
! agency.
Similarly when there is a rule making pending, if 11
. there are no objections in the context of a rule making
...if t'
. you are talking to the staff freely about let's say an emergency 13 i
i l
planning issue to help you decide the rulemaking.
But a very 14 i
l similar emergency planning issue happens to be involved in t'e adjudication, that is either accusatory or under our view, not
=
if l
1 I
accusatory, but they are advocates.
.You would really be pre-17 I
vented from talking to the staff to help you decide that rule 18 making.
Also, the Commission and.the Boards may seek advice from i 19 supervisors, particularly supervisors who haven't been involvedi i
I.
l
'g in a particular case.
Furthermore, we think it is clear.
21 COMM. KENNEDY:
How do you define supervisor?
j
- 2 SHULMAN:
Different ways you can define it. 'One I
r' i
way you can just structurally in this organization...you can l
say the Director of NRR is the supervisor for that stand-in.
Similarly we think that the Commission...now those matters dealt i
i.,T
= v n m i c dEBEIIhrpo N STU.EET. L W. SerTE tet I
Tm & L ammt
q 23 I
nas
~<c.
6 l
with upflow of communications getting advice from the staff l about rule makings, enforcement actions and the like.
On the i
i downflow side, we felt that there would be no problems with the 2
i 4
j commission telling the staff as a general matter that it wants emergency planning issues tried this way, it wants even more 3
i technical issues tried in a certain way where different witnesses I 6
i will be called.even though that general generic guidance might 7
have a very real impact on a particular model.
g i
i 9
CHAIRMAN AHEARNE:
You say in your summary, may pro-l vide directions to the staff providing the steps to take in a 10 particular proceeding and that would imply to me that it would i
i i
~
be then acceptable to determine what steps the staff had intended 3
e t
to take if you are going to provide guidance on what steps they
- 3 I
r 72
- should take.
I t
13 SHULMAN:
Well, as a theoretical proposition, I would t
I 16 agree with you.
As I think we point out it's inevitable that there is going to be a give and take when you talk with the stafE 18
! in order to supervise them.
If there wasn't, I suppose it would i
be rather meaningless...So...
g9 I
20 CHAIRMAN AHEARNE:
No, I was just trying to get at it i
21 iin a different context I thought some correspondence back and i
=
lforth on whether or not we could find out what positions the t
staff is going to take in licensing proceedings.
We seem to be {
n naving a debate on whether or not that could be done and this 24 3
almost sounds like we could find that out.
i l
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SHULMAN:
We11,..
2 i
i CHAIRMAN AHEARNE:
And let's give them guidance on it.
,i 4
SHULMAN:
Yes, I answered your question before I added 3
my last caveat to my general statement which is that there are 6
l three potential problems with supervising the staff whether you' 7
I l view that as getting information from one as to what they are 5
l doing or whether you tell them what they ought to do.
And those 9
problems are 11 I:
l 13 l
14 i
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l l
17 18 l
i 19
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21 i
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l i
I l
MR. SHULMAN: -- the decision in this case, that 1
I i
it's not simply the Commission giving orders, it's the Staff, I
each Staff telling the Commissioners, well, we think that's l
bad, this ought to be done this way and we're doing it this I
way for this reason.
i It's a lobbying effort which the court may say has l
6 l
7 i
happened enou'gh to effect the ultimate decision, such that 3
it would be participation or advice in the Commission's
.1 decision.
I 10 MR. KENNEDY:
Is it the other way around?
i II Is the Staff in the process of reaching it's -- it's i
II l
conclusions as to what it'would wish to recommend that the IU l
Commission decide, consult so often with the Staff that the Id l
recommendations are in fact those which the Commission e
i M
desired to hear from the Staff?
i M
That's acceptable?
i II MR. SHULMAN:
Well, I wouldn't want to prejudge i
II that that was going to occur.
But, I -- That's possible.
I I9 l
CHAIRMAN AHEARNE:
But is it as acceptable?
20 MR. SHULMAN:
I think it is acceptable again, with l
21 this caveat.
There is a possible prejudgment problem which I
is the second caveat to this supervision aspect.
There are i
i l
l three caveats to supervision, i
e#
i There's participation advice, there's a prejudgment ;
I problem.
You cannot allow whatever communications go on,
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lead one to conclude that you have prejudged an issue in the 4
1 case.
2 MR. BICKWIT:
But to say that you want the case I
A made along a certain pattern, that can be done consistent with I
the prejudgment constraints.
i l
6 I think it is possible to --
I MR.' KENNEDY:
How would you distinguish?
l 3
f liR. BICKWIT:
Well, you would simply say, I want 9
a case made along the following lines.
However, I don't to l
have to tell you this, but I'm telling you this, that when i
II I make my final decision, I'll make it of what I see in the I
t II record.
l I3 I'll see how far that case is carried.
I will go 14 look at the arguments against them and I think a reasonable I3 mind is capable of making that decision.
i I'5 MR. KENNEDY:
Okay.
II MR. SHULMAN:
Yes, I would agree that the I8 Commission has set out certain general policies and it 19 can certainly tell the Staff.
In essence, what it's doing I
i
'O is -- This is our policy on emergency planning.
We want 21 to make sure when you try this issue that you touch basis i
i
~.
with the concerns we have expressed here.
j i
i U
l Now, what I would say you have to avoid doing I'
there, -- If someone raises other legitimate issues that n
are relevant to the proceeding and maybe which tests that I
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27
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,i i
sort of hypothesis that you made, I think you have to be r
2 careful of, as Lynn says, of prejudging those and going 2
i your route in exclusion of the others.
4 l
The third caveat --
i 3
MR. KENNEDY:
What you can't do, therefore, is 4
tell them not to make a case on something.
~
7 l
MR. SHULMAN:
Unless it was -- it was clearly i
I l
3 l
contrary to your rules.
1 I
I think if the Commission had a rule that the matter 9
10 of X is irrelevant to licensing and an intervenor came in i
11 and said, we want to raise the matter X, the Commission says t,
I' 12 to the Staff, we don't have any proceedures for doing that l
13
{
or it's already been rejected by the Board, we don't want l
14 l
you to litigate the matter X.
I.!
MR. KENNEDY:
Okay.
i id MR. SHULMAN:
Yes.
And I would say that's not l
[
17 prejudgment.
18 l
MR. KENNEDY:
Yeah.
19 MR. SHULMAN:
But most of the stuff I think is 20 going to be more in gray areas.
l 21 The third caveat to the supervision, and I really i
- 2 don't know how to deal with this, is really the exparte 22 problem, the exposure to exparte facts.
24 l
Because, assuming you can supervise the Staff, l
l l
15 in finding out what the Staff wants to do, they may be U
- y..
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p e o r.s c. 2 8 I
c c
i l
I i
i l
telling you that they are going to call witness A, whose i
gonna give this testimony and it may turn out that the Judge or Board rules that that testimony is irrelevant and should.n' t 1
be admitted, or it may turn out that you feel that that's in-appropriate to what Commission's regulations require.
i 6
And so, you know, you're telling them not to put i
7 l
that in the r'ecord.
Or, it may be that after getting advice I
i 3
from you, they might make up their own mind not to put it j
in the record.
I 10 i
Nonetheless, you have now seen what may be rather 11 compelling to some of you, compelling information, which 1
1 people outside the agency do not know about, that people i
13 i
outside the staff don't know about, which may atleast sub-i 14 i
consciously effect the way you're going to look at the issues i
I~
in the case, --
i 16 CHAIRMAN AHEARNE:
But, don't Judges all the time 17 hear information which they then conclude as not acceptable
-1 18
~
l and throw it out and you say that it's always then that they i
19 l
have to excuse themselves because they've now heard this?
i i
'g o
MR. SHULMAN:
Well, this is true for Judges, but l
l the difference is, if you had the staff come in and brief l
you publicly as to what they were intending to do, so that l
Z1 i
everybody knew, that might be another matter.
i 21 s
But, I think the problem here really is an off-the larfguesaftspaae, Vegas 1'us h 14 due SIBWThe CAMT4n. ffuuMT. 3, s. EW,f'E 197 f
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@E@ 98/@
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29 ccan.nc.
I record problem, if you will, where you are getting new facts i
2 and information which may never see the light of day, nobody will know that they were ever presented to you.
2 e
And, you know, how did we presume decision makers 4
l are honest, impartial people, but we also have to take account l i
I 6
of innate human weaknesses and psychological factors and f
7 I th' ink there's a real question of how a court would deal 3
with that, when you were receiving information about the I
9 case that might have effected your judgment but nobody else l
in the case ever knew about it, accept you and the staff.
10 11 I don't know what to tell you about that problem, except to say that I think, to the extent you want to l
supervise the staff, you will minimize to a large extent 13 j
your legal problems, by supervising them based on informa-id 15 tion that is publicly known to all the parties in litigation.
r f4 Okay.
I think this sort of goes to our general l
17 statement of things you can do, and you can't do in the 18 caveats.
i t
i l
We did present you in the paper with four options.
l 19 l
20
[
But before touching on those, let me just make i
l these brief points.
We did send out over 200 copies of 21 22 l
this study for comment to utility companies, trade associa-I l
tions, environmental organizations, other government agencies,,
D 24 virtually anybody.
f 2
MR. KENNEDY:
Did you go to the Administrative 5
Innunnam vemmame RuPosefsps le=c, me soum c.wvu6 avourr. s. e. marrt ier
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pacz.wc i
l Conference?
2 MR. SHULMAN:
Yes, we sent the Conference one.
3 Ironically, they have somebody doing their own
)
studies.
And, we've attached a summary of the comments 4
we've received at the time this paper went out.
i 6
A few points on that.
I think it is rightly said i
l f
that we did not give. equal treatment to the make no change 7
3 option.
l 9
And, I think there are somewhat persuasive argu-10 l
ments that particularly set forth by the Licensing Board and i
11 the Appeal Board, that this is a viable option, if the s
i 12 Commission wants to emphasize the fairness, maintaining l
13 j
fairness and the appearance of fairness in proceedings.
l And, so, perhaps, you know, there should have been 14 i
13 an option F which said, don't do anything, because things I4 worked fairly well.
l 17 We also received comments on the neutral Staff 18 concept.
19 MR. KENNEDY:
Don't they work fairly well?
20 MR. SHULMAN:
I have not been here long enough f
to make that judgment.
21 I
i 3
MR. KENNEDY:
You're also a very smart lawyer.
23 MR. SHULMAN:
Thank you.
24 On the neutral staff concept, there seems to be l
l U
almost unanimous skepticism that there could really be a i
18tfWIBee?'ISpeat. VWIGeffeis h 14
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j neutral staff.
2 The Appeal Board and the Tennessee Valley Authority 2
indicated some of their problems with it.
The Washington i
Public Power Supply System commented upon this point.
4 3
And, I must say that idealistically, I thought the 6
neutral staff was possible.
Ihaveless--I'mlessconvincedj 7
of that and probably.more convinced of the opposite as a I
result of the comments.
i 9
There is also the due process argument.
Now, I i
10 don't think we are going to resolve the due process argument i
11 at this table or ever.
I think that it depends on your l
12 religion and alot of other miscellaneous factors and whether i
f you believe in something or whether you don't believe in it 13 I
14 l
when it hasn't been --
f3 CHAIRMAN AHEARNE:
Do you think Mr. Patterson would !
I 14 i
agree that his arguments are really based on his religion?
l i.
17 MR. SHULMAN:
Well, I think if you take religion in the broad sense, the philosophy and --
18 19 CHAIRMAN AHEARNE:
You don't think he would believe i
20 that it's based upon legal analysis?
f 21 MR. SHULMAN:
I'm sure that he would, but I also 3
think that there are other people, not particularly anyone i
i 23 here, but there are other people who have taken a contrary 24 conclusion -- made a contrary conclusion.
2 i
One thing I will say about his due process arguments, i
l i = = vs.=m. % ie
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CDH,T2/8 i
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I think that he rightly faults the method of our analysis 2
there, probably more because of time constraints, if you can 2
I believe it.
l We did not --
4 l
CHAIRMAN AHEARNE:
I'm glad you didn't say space 6
constraints.
7 MR. SHULMAN:
We did not engage in this balancing 8
process that he refers to.
9 And, his point which the Supreme Court cases support <
i l
although there hasn't been a case in the Supreme Court dealing 10 11 with separation of functions that undertook this analysis.
i l
I:
But, his point is that you look at three things.
13 l
You look at the interest of the party that's at stake, and i
see, is it a really important interest, is it a property 14 interest that you're depriving somebody of.
l l
l 16 And, you balance that against the risk of error l
I t
17 in dbaling with that interest if you don't have a separation l
18 l
of functions, and you balance into that as well, the cost 19 to the government or to the agencies if you require separa-20 tion of functions.
I 21 l
And, you sort of see where this balance leads you 22 to come out.
Now, our paper focused, I'm afraid, almost i
I I2 entirely on the risk of error and the problems where there i
24 are no separation of functions.
15 And, we did mention to a smaller extent, the cost i
iseTWuumetwinnaa. Vesmaffes Maperfgea lac deb Est,TM CAPMII. N. & e. EffTT te?
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occz sc I
to the Government of duplication and whatever, if you do l
separate functions.
4 But, we didn't engage in this balancing approach l
as outlined in his comments.
And, I think that having done 3
i that, my own view is that the case we would have made would I
have been less strong, but I personally would have come out l
6 the same way.
3 And, I think that even when you consider all of I
9 i.
that, there is still a due-process problem.
10 f
One thing I think to add on that, and he doesn't I
II touch on this, -- And, others who do touch on it, I think i
don't do adequately.
What is the interest that's at stake l
l IU in these proceedings?
Id Most of the analysis has been, people are not I3 entitled to a license, and therefore, because they're not l
i 16 entitled to a license, it's not like they have something i
I.
that you're taking away from them.
II f
And, obviously, you want more protections when I
I9 you're taking away something that somebody already has than when you're giving them some benefit that they're not 21 necessarily entitled to.
i Now, I question whether you could -- whether you 23 want to say that if they jump through all the hoops and i
U follow all the rules and spend lots of money, that nonethe-i
~~
less, they don't have an interest that's protectable, that U
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i is, they're not entitled to a license, so you'7;e talking l
2 about applicants.
2 i
MR. KENNEDY:
Aren't they entitled to a license if l
they had met the Agency's rules?
4 MR. SHULMAN:
Well, I would say, the way the i
5 proceedure is set up here, yes.
But, the.. Constitution --
I 7
MR. KENNEDY:
But doesn't the law say that?
l 5
MR. BICKWIT:
Our Appeal Board has said that and 9
we follow that.
10 MR. KENNEDY:
But also, isn't that a rationale f
11 interpretation of the Atomic Energy Act' 8
II MR. GILINSKY:
I thought the Act actually says 13 i
that.
l 14 MR. KENNEDY:
I thought so too.
t i.!
MR. BICKWIT:
Well, it doesn't say that.
I i
f6 MR. KENNEDY:
It says something so close to that, I
17 the Appeal Board didn't have to-- didn't have to make it up.
18 i
MR. SHULMAN:
Let's say that --
i l
19 MR. KENNEDY:
-- not that it couldn't.
I 20 MR. SHULMAN:
To give you an idea of his this 21 position though is, although very reasonable perhaps to all i
I2 of us, is one that is more cavalierly dealt with, some of l
4 i
l 3
the writings on due process indicate that when your --
24 when there's a property interest at stake, you need lots 15 of protections, and then in the throw-away sentence, they I
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CDH T2/ll 35 I
e i
o pect.wc i
l i
t say something like, of course, there are many types of i
I proceedings such as initial licenses where there's really no i
i l
i right involved.
4 I'm not saying we have to agree with that, I'm l
just saying it's a legal reality that we have to deal with, 6
much like the difference betweened a tenured teacher and i
I 7
l an untenured teacher.
1 CHAIRMAN AHEARNE:
But, the presence or absence of l
9 the general principle of due process doesn't, atleast from 10 l
what some of these comments are, it doesn't necessarily 11 then lead you to the conclusion.
i 12 l
MR. SHULMAN:
It doesn't necessarily lead to the r
13 conclusion, but if you conclude that there really is some l
I 14 sort of vested protected interest at stake, whether it's i
i 1.5 the applicant's right, so to speak, to get a license, or l
l 14 intervenor's right to have that land remain park land, and l
17 not be used for the construction of a plant.
l 18 If you recognize those as interests, I think i
i i
19 that leads you more to the conclusion that due process 20 ought to be more protective of this than if you say, well, 21 this is just a benefit and there's discretion in the I
I2 Commission whether to grant --
i 23 CHAIRMAN AHEARNE:
But I think just as the way 2*
you've described it, Harvey, it gets to be more of a policy f
15 decision than a strict requirement of the law.
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I I
MR. SHULMAN:
Well, when you get to due process, unfortunately, everything is so fact-specific, that it's 2
i almost impossible to know where policies leave off and 4
where due process comes in.
3 MR. BICKWIT:
And, we agree with his observations 6
that policy considerations are relevant, to deciding whether l
i 7
due process is present or absent.
3 MR. SHULMAN: Well, let me then just leave you i
9 now to the options.
10 CHAIRMAN AHEARNE:
Are we going to address Mr. Davis I
11 MR. SHULMAN:
If you woule like me to, I will.
1:
If you'd like me to, I'll comment on Mr. Davis' i
13 i
comments.
j i
l I4 i
CHAIRMAN AHEARNE:
I just wondered whether you I
i i
1.5 basically agree or disagree?
I 16 MR. SHULMAN:
I disagree.
l 17 CHAIRMAN AHEARNE:
You may go ahead.
i
\\
18 MR. SHULMAN:
We did check out the specifics for I
19 the record.
We checked out the specific instances that he 20 cited in his letter and we found that the citations were l
in extreme error, so that --
21 22 He certainly has a fine reputation, but on this i
23 particular matter we thought he missed the point.
l 24 CHAIRMAN AHEARNE:
Particularly when he said it I
15 was an advocate's paper?
I
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CDH T2/13 u
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37 occa sc.
i MR. SHULMAN:
Yes.
I i
MR. BICKWIT:
I can assure it was not an advocate's 2
i paper.
j CHAIRMAN AHEARNE:
It was not what?
4 MR. BICKWIT:
It was not an advocate's paper, but 6
it was a paper just designed to read the law as best we f[
I 7
coul'd and know frequen'cy of bias as to the extent we could I
l 3
l identify them and isolate them.
I 9
MR. SHULMAN:
About three weeks before the paper was 10 f
completed, I was convinced that there was no problem with i
11 Commissioners talking to anybody they wanted to in the i
l 1
12 Agency.
i i
1 13 l
CHAIRMAN:
That's where I came out, after I read j
9 la the paper.
IJ MR. SHULMAN:
Well, then I read alot of things 16 that went into the paper and that only experience, legal j
17 experience, could convince me otherwise, although, real l
~
18 experience may be more important.
19 Okay.
Well, we did come to our options and --
20 l
Basically, I think you ought to recognize that the options l
i 21 fall into two types of categories.
22 Options A and B deal with changing the Commission's!
O separation of functions and exparte rules.
They don't i
24 require any basic restructuring, but rather open up the 3
possibilities of who you can talk to under the AP and due INTWenancunaa, Vmftee Mgpoofget lsuc
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i I
proce[s, as opposed to who you can talk to under the present j
is rules.
3 To the extent there is any restructuring of the 4
Agency required, it would be because of how the 557 problem comes in and what you're gonna do with the supervisors and 1
6 others who talk to outsiders and also talk to you.
I CHAIRMAN AHEARNE:
But it also reflects partially 8
on your interpretation of which sub-option you chose.
I 9
MR. SHULMAN:
Pardon me?
j 10 CHAIRMAN AHEARNE:
But it also depends partly on II which sub-option you end up with too.
I2 l
MR. SHULMAN:
Yes, that's right, and you may never l
l IU reach that point.
Id l
Options C and B, on t he other hand, are more of I*
a structural option, C dealing with the notion of separated
[
i 16 staff, either -- And the paper maybe wasn't precisely clear j
l l
II on this point -- either a separated staff by saying that a 18 particular office, whether office, whether it's ELD or NRR, 19 e marticular office and others on a case by case basis, are 20 part of the off-limit staff, or beyond that, as Congressman 21 Moffett has indicated, for each case, you may say -- you 22 may designate which people in NRR and ELD and other places i
23 in the agency are part of the separated staff.
+
4 But, those are more of the structural changes l
rather than the rules changes.
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i I
I think, at this stage there's still some time left 2
to discuss the options and your views on that, although --
3 CHAIRMAN AHEARNE:
Not if we want to hear from i
A l
Alan Rosenthal.
i 3
i MR. ROSENTHAL:
I would just say, that as indicated 6
in my written commentary, that I have a great deal of problem I
I
[
l with the options that have been presented, not from a stand-l 7
3 i
point of whether or not they're legally permissable.
I'm I
l 9
prepared to assume, not having conducted the inquiry that i
10 Mr. Shulman has into the law, that they are legally permis-i II sable, but rather from the standpoint of what is sound policy.j i
U i
I remain entirely unpersuaded that there is a i
r 13 l
need for alternation of the status quo.
Id l
I have yet to, myself, hear an exposition of pre-I!
cisely what the problems that have been encountered with i
!6 the existing proceedures are.
Certainly from the standpo4nt 37 panel and the Appeal Board, lo such problem exists.
I 18 From time to time, the Appeal Boards indeed do 19
[
find As necessary to solicit the input of the NRC Staff 20 beyond that which has been volunteered by the Staff and the l
papers the papers that have been submitted to the Board, 21 i
I U
where that has proven desirable or be necessary, the l
f Appeal Boards have called for submissions en the part of 23 24 the Staff on the record, on the record, so that all of the 13 parties to the proceeding know precisely what the Staff 6
l larTWupeaftGunas. VWeeaffas Mgroofges, tw.
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CDH T2/16 f
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l I
has put before -- put forth before the Board.
I We have found that to be an entirely satisfactory means of acquiring additional information from the Staff.
2 4
We've never found it necessary to conduct private discussions 3
with the Staff with respect to any matter, it's been an i
6 adjudication in a contested posture.
i 7
Now, -- So,'I raise immediately the question of l
3 l
why is this trip necessary.
Secondly, as I've indicated i
9 in my written comments, I think that this course, -- And, 10 l
what I mean by this course is the pursuit of virtually any t
11 of the options, that have been offered in the General Counsel's i
i 12 paper as fraught with enormous peril.
i f
I think that we got to be extraordinarily concerned i 12 l
14 l
about not merely fairness, but about the appearance of 13 fairness.
I can just tell you that if I were an intervenor 16 testing the application of a utility for a permit to 17 construct or a license to operate a nuclear power plant, l
i l
18 I would be extremely concerned about whether I was getting i
i i
19 a fair shake, if I knew that there -were conversations j
i I
i 20 between the adjudicator, be it a Licensing Board, be it an i
i f
Appeal Board, be it the Commission itself, and members of 21 l
22 the Staff of NRR which has gone on record in the particular i
U proceeding as supporting the application all the way.
f I think this Agency should be concerned about it.
l 24 2
One of the things that troubles me, as one who i
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CDH T2/17 o
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pecz se.
i has been engaged in the adjudicatory process for this
,l a
2 Commission and it's predecessor for 7 and a half years, j
to me you will recall, this is a full-time occupation, is 2
i 4
the attacks that have been made upon our adjudicatory process, 5
claims that this process is a charade, that intervenors and l
l 5
the public-at-large are really being duped and decisions i
~
7 are really being made by the Staff and it's just a facade of having adjudicators.
3 9
Now, under the existing state of affairs, I think i
10 that charge is bootless and I would hope that even if f
11 some one or more of these options were adopted, it would i
remain in reality bootless.
l.
I i
12 l
And I tend to think that it would certainly aive i
I4 l
fuel to the suspicions that presently exist.
i 1.5 I would therefore hope that before the Commission 16 adopt any of these options, it will think further about the l
b 17 necessity as well as upon the matter of whether these I
s lll proceedings are not merely legal, not merely fair, but also 19 do not impinge upon what seems to me to be the fundamental 20 concept that our proceedings must not merely be fair, but 21 l
appear to be fair.
l C
MR. BICKWIT:
I think one response that ought to f
i i
l 42 be offered is that -- that our rules are not only tighter l
l l
24 than the statute requires, but are tighter than those in l
25 other agencies and that the appearance of fairness, I think, l
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CDH T2/18 i
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i l
can be maintained, if we regard that there is appearance of fairness in the operations of these other agencies.
It would I
be useful to the Commission to have a brief summary of the 4
status of these rules in other agencies.
I think it's help-l i
ful in meeting the argument raised.
I 6
MR. BRADFORD: Where does one look as part of that j
7 summary for the listin'g of evils to which reforms would be 3
the answer?
s 9
MR. BICKWIT:
You wouldn't --
i 10 MR. BRADFORD:
Aside -- Aside --
11 MR. BICKWIT:
You wouldn't --
t 12 MR. BRADFORD:
Aside from the statements in the i
!2 l
report.
14 i
MR. BICKWIT:
No, you would not -- It was not 6
15 designed to respond to that feature, the argument.
It was 16 designed to respond to the feature of the arguments that l
l t
17 said there would be an appearance of unfairness if the 18 l
Commission were to relax it's rules.
I 19 With respect to that feature of the argument, 1
20 the question -- the answer has to come from the Commissioners.
I 21 l
I think only the Commissioners and perhaps the staff can I
22 testify as to whether there has been any problem that needs I
22 correcting.
24 I know it is the opinion of some on the Commission i
- J that there most definitely is, but I'd rather them speak larvuunna% veemann, aggpenerg,g 1,g i
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CDH T2/19 i
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i to it.
i MR. SHULMAN:
I must say that I read the examples j
l 2
i in the Kennedy Report of instances of problems here that were 1
attributable to the exparte rules.
4 i
1 3
I was rather shocked myself, that -- that they 6
drew the conclusions that somehow the rules were responsible f
i f
for'that.
3 l
Now, it may be that because there is so much mis-9 understanding among everyone as to what the rules really I
b i
to l
meant, that people were overly cautious.
But, I found almost l
l 11 none of the examples that they gave to be precluded by the t
II present, exparte rules.
l l
13
[
CHAIRMM4 AHEARNE:
But actually, the question about i
14 looking into this, as I recall, predated the --
l MR. BICKWIT:
That is certainly true.
The point i
!6 that's being made is that alot of evils have been attributed l
17 to these rules that ought not be attributed to them.
18 l
It's not to say they are without evils.
i 19 MR. HENDRIE:
The difficulties we had, and the I
20 reason we urged this study forward and so on, really don't i
l deal with the sorts of things that Alan has mentioned here.
21 I2 i
I would expect that anything that we did with the I
l 23 exparte rules in this Agency, parties communicating privately i
24 with the Licensing Boards and the Appeal Boards.
I!
When you get to this table, it's a different i
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CDH T2/20 0
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I situation.
i The Appeal Board and the Licensing Board do not 2
have a supervisory function over the Staff of the Agency.
4
[
They do not have a function of worrying about where the Staff 3
resources are ultimately placed to deal with problems in a I
6 way that gives the best break on public safety.
I The Appeal and Licensing Boards deal with the 3
l adjudications in a formal way.
They deal with problems that 9
come to them at a time the Staff and parties who appear before; I
10 them have agreed that they're ready to put arguments on the il table and cross-examine each other and so on.
i U
That is not the case at this table.
At this table D
j we get a telephone call in the evening that there's a problem l
Id l
at the X plant, and comes 1&E staff with Vic Stello on i
13 one hand and maybe Harold and his troops on the other at
!6 9:30 in the morning, and something's going on, and wa aren't l
l I7 quite sure what it is, and we have to make decisions.
18 We make decisions and it occassionally turns out i
19 that it's not too long before somebody wants a hearing on I
20 this plant, or the project is already in a hearing situation 21 and we start out tide in peculiar ways to begin with.
l U
And, it is those kinds of situations that have U
led to expressions of frustration with the present rules r
i
.g on this side of the table.
Very very seldom an orderly progressing construction; h
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CDH T2/21 n
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pecz.sc.
i i
I l
permit case that comes in here and people are hollering 2
about not being able to find out from the staff what's going 2
I on.
I 4
It's typically an operating problem.
i i
CHAIRMAN AHEARNE:
Or a disorderly functioning 6
construction.
7 MR. HENDRIE:
Disorderly functioning and -- It's 3
l often very irritating not to be able to have the Staff down I
9 to tell you about it.
10
,i CHAIRMAN AHEARNE:
And not only irritating, but i
11 inefficient.
i f
MR. HENDRIE:
And, you know, I think it just doesn't'
(
!I fit up that way at the Board level or Appeal's Board.
I4 j
MR. BICKWIT:
There is no difficulty with having e
If the Staff down.
Id i
MR. SHULMAN:
That's right.
i f
17 MR. BICKWIT:
That's right, that is the whole l
18 point.
There is no difficulty whatever.
All you have to do i
19 l
is keep that door open and notify everybody.
20 MR. HENDRIE:
We have repeatedly been able to 21
-- unable to sit down here and hear the technical staff and l
I 2
the agency talk to us on us on a case because we've been i
23 advised that the parties are in Nebraska and they can't i
24 get here and so on.
i I
15 W
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CDH T2/22 i
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i MR. BICKWIT:
That's right.
I i
MR. HENDRIE:
So, having a public meeting of this Commission doesn't save the day.
If that were the solution, 2
i i
l I'd vie off.
4 j
I don't want to go in a back room under a blanket 6
and talk secretly to the Staff. I'm willing to tal.V here in
~
7 the open, but we can't'do that on occassion.
f MR. KENNEDY:
What occassions are these that we've 5
I 9
been unable to do this?
10 l
You went through this whole exercise, you know.
I 11 What were they?
I' 12 CHAIRMAN AHEARNE:
I don't think -- I doubt --
13 MR. HENDRIE:
Don' t you r emember --
i Il i
MR. KENNEDY:
That was an issue -- That wasn't i
i 13 Harvey's charge to do that.
l, Id MR. HENDRIE:
Don't you remember the line of B&W f
17 cases when, you know, the minute somebody asked for a hearing, i
18 shy then we couldn't talk about them here at the table anymore.
I 19 l
MR. KENNEDY:
Not in the way we were doing it.
20 MR. HENDRIE:
In any way.
21 MR. KENNEDY:
I don't think that's true.
I 22 MR. HENDRIE:
Not under advice of counsel without U
getting all of the parties here and allowing each of the i
I4 parties an equal opportunity to present.
U We got a technical probleu running.
I don't want I
larewesea1% Vuesams Azpourruput le me sowTee havvu. sfumarr. t n. sters is, r;
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N 47 o
e EAGE NC 4
I to hear what the Catfish Society of outer Nebraska thinks I
f 2
about the dam problem, I want to know what the technical j,
t 2
experts of the NRC Staff think about the problem.
4 l
CHAIRMAN AHEARNE:
Do I -- Could we -- I don't get the sense that we're necessarily all in agreement on 6
the position to take, and I know that Len does want to try 7
to get to this letter.
5 MR. HENDRIE:
Yeah.
I think the letter is almost, 9
you know --
f MR. BICKWIT:
The letter is essentially --
10 11 That's right, it essentially allows you to retain the i
12 flexibility.
13 CHAIRMAN AHEARNE: Well, it requests being allowed I4 I
to.
f 13 MR. BICKWIT:
Yes, that's right.
16 MR. KENNEDY:
Well, let me ask this.
Why is it, 17 given this legislation, we really have to ask for this is flexibility.
19 If it were such a good idea, one would have 20 thought that all of the advisors to all of the people 21 l
who have been working on this legislation before putting 22 it before the Congress for the past 2-3 years, would have i
22 seen some of the needs for flexibility.
24 What is it that they use for their' arguments for i
13 tightening up?
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MR. BICKWIT:
Well, I think that this will be persuasive to some of you and totally unpersuasive to the others.
i l
And, that is, there has long been a battle going 4
3 on about separation of functions, abolishing the initial 4
licensing exemption and more importantly, extending separation; 7
of dunctions,. beyond p'rosecutors and investigators to include i
3 advocates.
I 9
And, the big push for that is fairness rationale to which the American Bar Association has found to be very 11 persuasive.
i 1:
Now, all I can indicate is that if -- If the 13 i
American Association of Geo-physical Engineers or someone 14 else feels that the technical side of it is being overlooked i
1.!
in the need for better decision making, or agency decision r
i 16 makers themselves feel that, that it is certainly -- It l
1 17 is certainly as much of a valid point as the fairness argu-is ment.
19 And, I don' t think, you know, that we are here to
~
20 tell you via this letter that Congress ought to do this or l
21 that.
At this stage, our concern was with maintaining what we feel is the Commission's present flexibility.
I 23 You may find later on that you want to go -- you 24 don't want to change your rules, or you want to loosen them 15 up only minimal.
But, you may preclude -- You may be IsrTWisna m V aasanes h leg; due EINThe CM'Tilk STugET. & e. RMTR ter j
e
- 2. L m
CDH T2/25 i
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precluded from doing any of that by the Bills.
4 The important thing on the Bills, I think, really to get across, is thtt the Bills would clearly extend i
,~
separation of function rules to non-accusatory cases, where a
you are concerned with conversations between decision makers
~
i f
and advocates.
And', that would have an enormous impact on your 3~
flexibility because -- Although --
i 7
MR. HENDRIE:
That'd even cramp what we do now, i
g I think, wouldn't it?
I 11 i
MR. KENNEDY:
No, I don't think so.
l t
i t =~9 MR. BICKWIT:
No, because your rules go far beyond i
13 existing law and far beyond the laws that would be changed.
I.s i
CHAIRMAN AHEARNE:
Given that, there was a sentence ;
l *'
in here that really puzzled me.
You have on page 3 of the I
16 second letter, --
The extension of separation of f unctions to this is degree could well endanger public safety and health, including I
t i
19 i
the presiding officer from receiving relevant technical I
i advice from disinterested staff members.
21 l
MR. BICKWIT:
We have a number of changes we'd
~,
l
~
j like to make in the letter, small changes, and I think that is one of them.
I i
24 CHAIRMAN AREARNE:
I think elimination of the*
3 i
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I sentence might be --
2 MR. BICKWIT:
Either elimination of it or a revision' 2
of it so that it would read, the Commission would strongly i
4 l
object to these results as potentially harmful.
l 3
j CHAIRMAN AHEARNE:
Well, but that tends to imply l
6 that we are already using this sort of flexibility which i
7 we're not.
I I
3 MR. KENNEDY:
I think if the sentence k 3re to go, i'
9 it would probably more accurate than it is now, by a i
10 l
substantial margin.
Il MR. SHULMAN:
There's no problem with that.
- And, i
I also on page 3, a couple lines above it, we say that --
i i'
the sentence, more significantly, however, in non-initial
!3 licensing cases that are non-accusatory.
id i
I.!
It really should say, most suspensions, revocations i 16 non-renewals, and agency initiated amendments of licensees l
i.
I7 at the NRC.
l 18 l
It is not true that every suspension or revocation I
i 19 is for a non-accusatory reason.
I 20 There are a couple of real small --
l 21 CHAIRMAN AHEARNE:
The only problem I had was that I
22 one sentence.
23 i
MR. KENNEDY:
I have just one other comment.
The 24 letter's fine with me with those changes, but if you're planning to send forward the study, it seems to me, given Istruusmanomaa. Vomartes esporrusuL lac, me sm,Tw caamm. sfuest, s. e. mater ter
-- _. n & & mE
51 l
a
~
c s
pcca sc.
i t
the nature of many of the comments, it would be useful to j
i send those along with it.
2 l
MR. BRADFORD:
I would say more than that.
It l
4 seems to me that two things are really needed.
One is that
-- I came in on the tail end of your response to Professor i
6 Davis' comments, but I don't see how we can transmit a study l
~
7 up to the Congress about which he has written in such j
3 clearly condemnatory terms without pretty well considered l
9 response, yeah.
I l
h 10 After all, this is one of the nation's leading i
authorities.
I l
CHAIRMAN AHEARNE:
Except, I think we promised a
l la them the study by the 15th.
I I
la i
i MR. BRADFORD:
Well, maybe the response has to l ~'
come along later than, but it doesn't seem to me --
CHAIRMAN AHEARNE: Well, perhaps we could say our response to the comments would be provided at a later date.
18 MR. BRADFORD:
Whatever.
But, in any case, I 19 I
don't think that one could expect the study to be -- to i
20 waiver heavily against that opinion unless there are some 21 clear responses to it.
I2 i
The other -- It does seem to me that before we i
6 2
can expect this process to be taken very seriously, there l
i 24 o
does have to be a catalogue of some number of examples 3
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i l
of cases in which the exparte rules have somehow worked to the detriment of the Commission being well-informed on j
decisions that have been made, that it has had to make, and also the ways in which the decrease in flexibility proposed by the legislation would have hampered our ability to deal 5
with that, that is if dealing with the shortcomings in our l
t exparte rules' is simply a matter of interpreting our own 3
rules differently or being more aggressive in having meetings I
properly transcribed and distributed to the parties.
l 10 l
And the answer is going to be, but you're not really.
II talking about the pending legislation at all.
So, that it --
t I needs somehow to be clearer than it is in the letter why I
it is that the kinds of reforms that may be necessary to l
l deal with the real problems that this agency has, would be l'
l' circumscribed by the legislation.
CHAIRMAN AHEARNE:
Well, I think the letter's fairly clear in it's point that it would eliminate flexibility that we now have.
19 MR. BRADFORD:
That's right.
But what's not clear 20
.is why --
MR. KENNEDY:
Why you want it.
MR. BRADFORD:
Why we want it and why, the degree n
j to which the flexibility is diminished by each of the Bills, af i
overlaps with the flexibility that we need to cure the o
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specific problems we're having.
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CEAIRMAN AHEARNE:
Realistically, that's another l
2 side.
2 MR. BRADFORD:
I suppose the compilation of the 4
problems is a study of the sort, but it certainly isn't as 3
extensive a study as this one.
l i
6 CHAIRMAN AHEARNE:
Well, it might and it might not.
l 7
It really -- For example, I can think of my case.
But, when l
3 I
I first got here, I can remember time and time again asking l
9 l
various members of General Counsel Staff when I found out l
about this and being told no, exparte, you can't do this, 10 11 you can't do that.
i 12 I didn't keep a record of that.
So, now, it would 8
13 l
be, atleast in my case, alot of effort to go back and try 14 I
to compile that kind of a record.
II MR. BRADFORD:
But, short of a catalogue like that, I6 I must say, I don't think we're gonna make very credible 1
17 witnesses on how the Congress ought to come out.
la The laws herc --
19 MR. KENNEDY:
As Bixby used to put it, what is the 20 problem to which this is the answer?
i f
MR. BRADFORD:
Or, what is the problem to which this 21 22 will --
i I
f 23 CHAIRMAN AHEARNE:
No, there are two separate 24 issues, though, aren't there?
One is the Congressional l
23 change in the law, but the other is, in the absence of any INMennes VmMae RgPomfWut last due smWTW CAMT46 fMBEE?. & w. Sufft lef I
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l change, what if anything do we do with out regulations.
i MR. BRADFORD:
All right.
But what we're telling a
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the Congress is that the regulatory reform legislation which a
they've now been working on for some period of time, is in e
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fact improving from the point of view of this agency because 6
we need more flexibility rather than less.
i 7
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Wha't their response will be, is look, you have 1
3 l
these exparte rules that will go much further than you have I
9 j
to go.
10 I don't have a firm view on this.
11 CHAIRMAN AHEARNE:
Pardon me?
I j
MR. BRADFORD:
I don't have a firm view on this.
13 j
CHAIRMAN AHEARNE:
Okay.
So, you said that those la j
changes you would -- Joe?
a t~e MR. HEHDRIE:
I'd send a letter.
It seems to me i
Id that the evidence, that from our standpoint, the restrictions,i.
17 i
the limitations posed by the proposed Bill in the present i
is law is from a standpoint unfortunate, is the fact that l
19 we're doing this study and atleast some of us had felt a i
j need to look at the options that were available under
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21 i
present law.
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Notf we've got some new law coming along that will j
I knock those options out.
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24 i
fact that we're looking at it, means from our standpoint, j
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I settled what we want to do.
2 If, down the line we decided no, we're not gonna i
change them, we're just gonna grit our teeth and live with i
4 I
our exparte rules as they are, they an answer at that time l
5 i
to these people could be, go ahead and do it, it doesn't I
6 matter to us.
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7 But I don't'know that that's the case and my guess 3
is that it won't be. There's gonna be a majority on this 9
Commission, it's gonna want some relaxation of these within 10 f
present legislation and to lose that flexibility just when 11 we finally -- you know, finally jacked ourselves up and i
12 leaned forward into some motion on the proposition, I find 13 l
disheartening.
j l
14 So, I think that constitutes perfectly adequate I
i I.!
case for saying hey, leave us out of this if you're bound i
Id to do it.
l' MR. KENNEDY:
I can agree with everything, except
.i 18 that I don't come out with the same case, but I agree 19 we ought to send a letter.
20 l
I think we ought to keep the options open until 21 l
we conclude, but that does not leave me to conclude that i
22 we will wish to use that.
l i
22 i
MR. GILINSKY:
It sounds reasonable to me.
I I
Id can understand Peter's objection a little better.
Is it 15 just the fact that one doesn't have clear examples that i
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would show what the problem was?
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I MR. BRADFORD:
That's the main one that we're 2
i asking Congress to hold off, on the basis of -- a set of a
concerns that we haven't been able to articulate very well.
l 3
As a second -- I have a second concern, but it's i'
6 one that I can't flesh out within the time it'd be necessary 7
to make the decision on it, and that is that -- I'm l
3 just not as comfortable as perhaps I'd like to be with NUREG i
9 0670 before we laid it before the Congress as being a 10 l
definitive statement of the problems in these areas.
i 11 I'd like to see ODC's rebuttal to the Davis points, i
l' 12 because that's one thing to say that's great, let me at him, j
13 l
and maybe you'll completely convince me when you do.
l i
I4 f
But it's another to send up a study as the NRC's a
I!
definitive views on the subject when one or two of the leading!
1 16 authorities in the country has really found nothing good I
I I7 to say about it.
18 l
MR. BICKWIT:
I should add.
We did not promise i
1 19 l
Congress we would get them a study.
We promised Congress l
P 20 we would be doing a study, at that point we would be doing it.
21 CHAIRMAN AHEARNE:
I gather -- To some extent, I
II some members of Congress have been given tne study to U
comment.
24 MR. BICKWIT:
But they haven't -- They've been l
13 given the study as --
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MR. KENNEDY:
I think your point's, John, is sort i
I i
2 of compelling.
If we've taken the trouble of asking for 2
l Congressman Moffett's views on the study, and we have a 1
I couple of Committees up there that are sitting dealing with, 4
I mean, dealing with the subject matter to which the study l
6 is clearly relevant, it would seem to be atleast in politic, l
7 and certainly impolite not to provide it for --
l 3
l MR. BICKWIT:
Well, the middle ground would be I
i i
t 9
that you explicity don't endorse it.
This is not a study 10 that we would expect you to endorse at this stage.
This is 11 our study.
12 MR. KENNEDY:
I think that's perfectly fair.
13 MR. BICKWIT:
You could make that clear.
j l
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CHAIRMAN AHEARNE:
I think with that provision then,,
14 13 I think we will then go ahead with sending the letter.
O I
16 Before we break, I'd like to see what is the
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4 17 pleasure about, -- How would anyone like to proceed with l
18 l
addressing the study itself?
Shall we -- Len will be pro-19 viding some comments on the comments, particularly Professor 1
20 l
Davis'.
21 Do you wish another meeting?
Do you wish to 22 provide written comments to -- on this?
I i
D MR. KENNEDY:
Well, Len's gonna provide us with I
i 24 some more -- some sort of a catalogue or something which i
1 1
3 tries to rather clearly tell us what the problem is that l
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we're gonna deal with, with some examples, that the real I
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life examples.
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And then I guess I'll ask myself my question, but I
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l why under the current-rules is that necessarily a problem.
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3 And at the moment, I can't find that it really is.
I find 5
it may be an inconvenience in some cases but not a problem.
f 7
l And, with a 'ittle careful preparation, I think l
3 l
the inconvenience itself can be eliminated.
So, I'd like i
to see that and after that maybe conclude whether we need a f
9 to meeting or whether we can address it and comment.
11 At the moment I'd be prepared to address it and i
i 12 comment.
j l
13 CHAIRMAN AHEARNE:
Len, can you provide that?
14 i
MR. BICKWIT:
Sure.
I i
i 13 CHAIRMAN AHEARNE.
It would probably be useful if f
14 Harvey's gonna be doing that to atleast come around and
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17 talk to each of us to, so we can atleast try to describe l
18 i
some of the problems that we may have seen or may not have i
f seen under any other circumstance.
l 19 t
20 MR. BICKWIT:
Yes.
May I ask this, what kind of 21 i
answers to these comments is the Commission looking for?
I 22 I would be happy to respond to Professor Davis.
I i
23 l
CHAIRMAN AHEARNE:
I would also like, if you i
24 could, Mr. Peterson, is that his name?
25 MR. BICKWIT:
Yes.
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4 Since he seemed to raise directly ll i
CHAIRMAN AHEARNE:
l 2
l the issue of due process, if you could, and since you had f
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i already quoted him in your study as being someone to be given I
4 some weight on his views by reference then.
e MR. BRADFORD:
How did you arrive at the phrase f'
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respected?
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7 MR. SHULMAN:
Apparently he's been over here and
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3 actually talked to Commissioners in the past and I thought t.
s 9
thnt to MR. BICKWIT:
He got through it, so --
11 MR. B,RADFORD :
The catfish alliance of Western i
12 Nebraska talked to the Commissioners.
l i
t i
i 13 MR. BICKWIT:
He's got a fine reputation in this 14 area.
He's labored in it for many years.
l l
1.5 CHAIRMAN AHEARNE:
My point was that since he had r
e been used as one of the references, in supporting some of j
rd 17 the arguments, and when he came in and disagreec with part j
t l
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of it, I thought it would be useful from my point of view I
pp i
to see the correspondence.
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20 Any other items?
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21 Thank you.
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