ML19309H641
| ML19309H641 | |
| Person / Time | |
|---|---|
| Issue date: | 03/26/1980 |
| From: | Rosenthal A 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 8005130583 | |
| Download: ML19309H641 (4) | |
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UNITED STATES NUCLEAR REGULATORY COMMISSION y'
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ATOMIC SAFETY AND LICENSING APPEAL PANEL k
WASHINGTON, D.C. 20555 80 0513 05T3 March 26, 1980
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MEMORANDUM FOR:
Chairman Ahearne Com=issioner Gilinsky Commissioner Kennedy Commissioner Hendrie Commissioner Bradford FROM:
l Alan S. Rosenthal, Chairman Atomic Safety and Licensing j
Appeal Panel i
SUBJECT :
"A STUDY OF THE SEPARATION OF FUNCTIONS AND EX PARTE RULES IN NUCLEAR REGULATORY COMMIS-5 YON ADJUDICATIONS FOR DOMESTIC LICENSING" By SECY-80-130 (March 11, 1980), the General Counsel has submitted to the Commission the results of his study of the current NRC rules on the subject of private, not-on-the-record, communications between agency adjudicators and other persons l
within or outside the agency.
The study deals with the two aspects of this subject: -(1) the proscription against private communications between adjudicators and persons outside the agency on any matter in issue in an adjudicatory proceeding; and (2) the like proscription against intra-agency,communica-tions.
These bars are found in the Commission's ex parte and separation-of-functions rules (10 CFR 2.780, 2.713IT.
Alrhough 1
the study treats both parts of the subject exhaustively, only changes regarding the separation-of-functions aspect. (i.e.,
intra-agency communications) are proposed for consideration.
By reason of the absence of suggestions for the possible amendment of the existing ban against ex parte communication with outsiders, I infer that the study 7inds that ban to be satisfactory.
My own experience over the past seven years leads me to agree with this assessment.
To my knowledge, the ban against private outside communication has not hindered the i
Appeal Panel members' ability to carry out properly their ad-judicatory functions.
To the contrary, I believe its effect has been salutary.
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i Commissioners i As to the separation-of-functions rule (the subject of my remaining comments), the principal conclusion reached in the j
study is that the NRC places greater restrictions on communi-4 i
cations between adjudicators and agency personnel than required by law.
SECY-80-130, p. 6.
The study finds that there is room, legally, for relaxing somewhat this ban on intra-agency communi-cations between adjudicators and staff in contested cases.
Id.
at pp. 6-7.
(The rule has only limited application in uncon-tested cases; and that aspect of the rule is not the subject of any proposal for change.)
1 By way of possible amendments to the separation-of-functions rule, the study offers five options (A through E) for Commission consideration.
Study, pp. 154-83.
The first two options -- A, for " initial licensing" cases, and B, for ot er cases, -- would distinguish among the various staff members such as staff advo-cates (essentially NRR and ELD members), witnesses, investigators, reviewers and supervisors; and would allow adjudicators to con-4 sult with some but not with others.
Option C would set up a separated staff.
Members of that staff could not be consulted by adjudicators.
Other agency personnel (not on the separated staff) would be available for consultation so long as they did not com-municate with persons outside the agency with respect to the matters under adjudication.
Option D would change the role of the staff in adjudications to that of a mere f act collector.
In that role, the staff would not assume an advocacy function and would not take a position in support or in opposition to the license application.
The final option (E) involves seeking new legislation which would relax one or more of the existing restric-tions against communication by adjudicators with others either within or without the agency.
I have two principal concerns regarding these various pro-posals.
First, it is not clear to me that the study makes a good, let alone compelling, case for liberalization of the rules against private communications by adjudicators with others inside the agency.
Indeed, the study itself expresses uncertainty as to the need for change.
Second, the various proposals for allowing greater private communications between adjudicators and others do not adequately focus upon the element of fairness, in f act and in appearance.
These concerns will be discussed in order.
1.
Although the study concludes that this agency's existing separation-of-functions rule goes beyond the requirements of law in prohibiting consultation between agency decisionmakers an; O
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Commissioners staff personnel, I do not understand its author to conclude that the rule has proven detrimental to the agency's discharge of its In this regard, the study expressly states that "it functions.
is not proper to suggest that the plethora of communications problems in the agency is the result of legal prohibitions im-posed by these rules"- (id at p. 6).
Further, alluding to the seven specific c'mmunicEEions problems specified by the Kemeny Commission's Chief Counsel in his support of that Commission's report, the study states that "it is unclear that any of them were actually caused by these rules" (ibid.).
Insofar as the appeal boards are concerned, I am totally persuaded that the ban against off-the-record communications with the staff has not served as an impediment to the proper discharge of their duties.
Any need for discussion of the merits of any proceeding both can be and has been. satisfied through the mecha-nisms of written submissions and oral arguments. */
- 2. 'As the study points out, the ban against intra-agency communication on matters under adjudication was adopted, as a matter of policy, in the interest of maintaining f airness in the licensing process.
Id. at pp. 35-36, 38, 41, 47, 49.
This is an enormously important objective and, in my judgment, any relax-atien of the ban would be fraught with danger.
First, there are practical difficulties in insuring that any No matter private discussion is.kept within permissible bounds.
how the separation-of-functions rule might be altered, the General Counsel's study correctly concludes (pp. 13 6, 152) that any dis-cussion between adjudicators and others cannot involve new facts or arguments not contained in the public record without giving rise to due process problens.
While it may be theoretically possible to limit any discussion to matters already on the rec-ord, it is not always easy to do so in practice.
This is espe-cially so in cases involving complex facts and novel issues.
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In this connection, it must be borne in mind that, whether or not there are off-the-record private discussio~ns between
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an adjudicator and a staff member, adjudicators must base their decisions upon the disclosures of record; i.e.,
they may not rely upon anything which is told to them in a pri-vate conversation (and thus cannot be confronted by other parties to the proceeding).
I do not believe that the study sufficiently emphasizes this consideration.
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Commissioners 1 Second, even assuming that the private consultation between the adjudicator and a staff member were appropriately limited in content, the mere fact that a private, off-the-record, discussion was held with the representatives of one party might incubate (especially if it first became'known after the event) the suspi-cion of improper' conduct.
In any case, the appearance of unfair-ness which such one-sided discussion would create well might lead to even greater public distrust of NRC's licensing procedures than t
now exists.
In my view, these considerations override whatever benefits might be derived from permitting private consultations between adjudicators and staff members.
I therefore recommend against alteration of 'tlua separation-of-func'.lons rule to allow such consultations as proposed in options A and B.
For the same reasons, I would not f avor a rule change which would allow the Commission to discuss privately with adjudicatory board members any substantive issue involved in a still on-going licensing proceeding.
I am equally opposed to such private discussions between Licensing Board Panel and Appeal Panel members.
I do not, however, see any cause to preclude con-sultation among adjudicators on the same level.
Should the Comrission perceive a need for technical and other advice concerning NRC licensing proceedings which cannot be met under the existing or'ganizational structure, it might wish to establish a small group to perform this function (somewhat along the line of the separated staff system discussed in option C).
This group, the members of which would be publicly identified, would not be permitted to communicate with the staff or the pub-lic on matters under adjudication and would be available only to the Commission for advice and consultation.
Neither of the remaining options (D and E) is sufficiently detailed in the study to permit firm conclusions regarding its acceptability.
As a general observation, however, I share Pro-fessor Davis' skepticism with respect to option D, which is re-ferred to at pp. 179-80 of the study.
In common with him, I have serious doubts that the staff can truly be expected to ad-here to a purely fact-finding, non-advocacy role, given the extensive review functions it now perforns on applications for licenses to construct and operate nuclear power reactors.
cc:
LBickwit, OGC EHanrahan, PE HShapar, OELD RLazo, ASLBP SChilk, SECY
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