ML19309H567
| ML19309H567 | |
| Person / Time | |
|---|---|
| Issue date: | 03/28/1980 |
| From: | Lazo R NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | Ahearne J, Gilinsky V, Kennedy R NRC COMMISSION (OCM) |
| Shared Package | |
| ML19309H562 | List:
|
| References | |
| SECY-80-130A, NUDOCS 8005130509 | |
| Download: ML19309H567 (1) | |
Text
8005130507 m
.U Ccmission 3
March 28, 1c30 Thus, it is probable that those licensing proceedings for which the rules could be modified will be ones which are limited in secpe and which do not raise the full range of safety and envircrrental issues encompassed in a mandatory construction pemit hearing.
How do the separation of Ibnctions and ex parte rules impact these proceedings?
At the outset, insofar as IEiC adjudicators are concerned, it is important to recognize that the separation of functions rule applies only to " presiding officers". Section 2.704 indicates that presiding officers are officers who preside over the hearing, or evidentiary, portion of the proceeding as opposed to the appellate portion. Thus, the separation of functions rule, with its prohibition cn certain contacts by adjudicators, does not apply to the Comissicn or the appeal boanis so long as they are exercising appellate, rather than hear-inM authority.
Similarly, the prohibitions of.the er parte rule are not applicable to members of the ASGP or the AC, but are limited to the members of the ASLAP, the Ccm-mission, and their staffs, and thus applicable to the appellate, natar than hearing function. Of course, it has always been the Panel's positicn that the prohibitions on certau contacts by presiding officers contained in the separa-tion of functions rule are more restrictive than the prohibitions of the el pa"te rule. Thus tM fact that the ex parte rule is by its terms not applicable to rembers of the ASGP does not mean that those members are free from ex parte restrictions.
Thus, to the extent that the General Counsel's study results from the perceived need to alter the rules to permit the Commission greater freedom to direct the staff, it shou'.J focus on possible modification of the present ex_ parte rule.
Lastly, there are some adverse aspects to a modification of the separation of functions rule. As noted, this rule currently applies only to hearing officers, so this discussion focuses on the effect of a relaxation on the conduct of hear-ings by AS Bs.
As noted above, hearings consist of the presentation and testing not of facts, but of expert opinion.
A board is not called on to find facts which happened in the past (except, of course, in some enforcement proceedings). Rather, it is called upon to decide, by applying its own expert knowledge to the expert cpinion in the record, what are the likely consequences to the public health and safety and the envircrrent of permitting the applicant to engage in a par-ticular course of conduct. The specific questions which call for such predic-tions are most often posed by intervenors who have initiated the proceeding for the sole purpose of airing these questions. While occasionally intervenors are able to produce an expert or experts to testify on such questions, they most often are limited to seeking to discredit the applicant's and staff's experts through cross-examiration.
In these circumstances the Panel believes it unwise to relax the sepc.mtion of functions rule so as to permit the staff to discuss pending cases with a presiding board. Regardless of how it is structured, this can only be vie:ed as permitting the staff an off-the-record opportunity to convince the board of the correctness of its experts' opinions.
Permitting the staff to privately
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