ML19309H644
| ML19309H644 | |
| Person / Time | |
|---|---|
| Issue date: | 03/28/1980 |
| From: | Lazo R Atomic Safety and Licensing Board Panel |
| To: | Ahearne J, Gilinsky V, Kennedy R NRC COMMISSION (OCM) |
| Shared Package | |
| ML19309H562 | List:
|
| References | |
| SECY-80-130A, NUDOCS 8005130594 | |
| Download: ML19309H644 (4) | |
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UNITED STATES 80 0513 0$Hl (q
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NUCLEAR REGULATORY COMMISSION
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, i j./ ' E ATOMIC SAFETY AND LICENSING BOARD PANEL Y
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WASHIN GTON, D.C. 20555 g
March 28, 1980 IEORAIOG4 FOR:
Chairm n Ahearne Ccruissioner Gilinsky Ccomissioner Kennedy Cocmissioner Hendrie ssic r Bradford R
FROM:
Ro
, heting Chairman Atomic Safety and Licensing Board Panel
SUBJECT:
SEPARATION OF FUNCTIO!G AIO EX PARIE RULES This is to cocment on the General Counsel's memorandum to you of March 11 on the above subject (SECY-80-130). Because of the inportance of the separation of functions rule to the fair arri impartial conduct of hearings by licensing boards, this office is very much concerned with possible modifications of that rule.
In order to properly evaluate the options identified in the General Counsel's paper on the separation of functions and ex_ parte rules, it is helpful to start with an examination of the proceedirgs which are likely to be conducted in the future.
Only construction permit applications entail mandatory hearings; in all other cases a hearing is held only if requested by a person with standing (or if a detennination to hold a hearing is mde on public interest grounds). A few construction permit applications are pending, but only one is forecast for the future. Thus, because alnest all future applications will result in a hearing only on request of an interested person, it is safe to assume that almost all proceedings conducted in the future will be contested.
How mny of these proceedings are accusatory will depend on how many enforce-ment proceedings are initiated. While it is theoretically possible that the staff might seek to establish that past culpable conduct on the part of a license applicant requires a denial of the application, this does not seem likely. Further, it is unlikely that an applicant would press its application in such circumstances.
As we urrierstarxi the Gene.ral Counsel's conclusions, the Ccn=ission is free to relax its separation of functions arri ex_ parte rules in all licensing cases except proceedings on Onders for Vedification of License because these are 4
031TIACT:
John H Frye, III, ASGP 49-27861 I
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Ca nission 2
Parch 28,1980 l
l initiated by the staff. Further, the Co: mission must retain the rule in almost ali enforcement proceedings because these generally involve allega-tiens of past culpable coniuct.
Where an enforcement proceeding does not involve such allegations (i.e., an Order to Show Cause based on new informa-tion, such as the' discovery of a geologic fault) apparently the rules could be relaxed.
Sane of the factors relevant to a consideration of possible modifications ~ to the mles concern the nature of NRC licensing pro'ceedings. NRC licensing proceedings basically require that certain predictions be made concerning the safety and enviromental impact of specific nuclear power plants.
In order to make these predictions, a reconi is compiled. This reconi consists of the opinions and conclusions of various technical experts who have examined the specific propo' sal.
The first steps in compiling this record are detailed safety analyses and enviromental reports which elaborate specifically what the applicant seeks permission to do and embody the opinions and conclusions of the applicant's experts as to,its safety and environmental ig act. These reports are reviewed and analyzed by NBC staff experts, who then report their opinions and conclusions.
If no one successibily requests a hearing,.this record is the record on which
.a decision is based.
If a hearing is requested and ordered, this record is
. supplemented by a hearing record and an initial decision.
It is important, for purposes of this considerations to focus on the content and purpose of the hearing record and decision. This can be best understood by contrasting it to the construction pemit hearing and initial decision.
The mandatory construction pe=it hearing must address not only issues in controversy, it must also review the staff's work on matters not in contro-versy to ensure that the staff's review of the application has been adequate.
The initial decision mst make all of the findings required by the Atomic Energy Act and NEPA and authorize or deny a constructicn pemit.
In the proceedings which may reasonably be anticipated in the future, the content and purpose of the hearing record and initial decision is rrore narrow.
In these proceedings, the hearing is " optional" and is primarily to focus on the issues which the person who has requested the hearing has placed in con-troversy. To these issues, the hearing board may add matters which it con-l siders significant. The initial decision is limited to deciding these matters,
~1t does not otherwise address the staff's review. Further, the initial deci-sion cannot direct the issuance of a license or amendment, it can only author-ize the appropriate staff office to issue the license or amendrrent based on i
a favorable resolution of the issues in controversy.
It remains for the director of the staff office concerned to make all the other findings required by the Atomic Energy Act and NEPA as a prerequisite to the issuance of the license or amendment.
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Ca mission 3
March 28, 1980 4
Thus, it is probable that those licensing proceedings for which the rules could be modified will be ones which are limited in scope and which do not raise the th11 range of safety and environmental issues encompassed in a nandatory construction permit hearirs.
How do the separation o'f functions and ex_ parte rules impact these proceed-ings? At the outset, insofar as NRC adjudicators are concerned, it is important to recognize that the separation of functions rule applies only
. l 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.
1 lbnctions rule, with its prohibition on certain contacts by adjudicators, does not apply to the Comission or the appeal boards so long as they are exercising appellate, rather than hearing, authority.
Similely, the prohibitions of the ex_ parte rule are not applicable to mem-bers of the ASLBP or the ALJ, but are limited to the members of the ASLAP, the Conmission, and their staffs, and thus applicable to the appellate, rather than hearing function.
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'lhus, to the extent that the General Counsel's study results fran the perceived need to alter the mies to pemit the Comission greater freedan to direct the staff, it should focus on possible modification of the present ex_ parte rule.
Lastly, there are some adverse aspects to a modification of the eparation 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 con-duct of hearings by ASLBs.
As noted above, hearings consist of the presentation and testing not of facts, but of expert opinios. A boani is not called on to find facts which happened in the past (except, of course, in some enforcement proceedings). Rsther, it is called upon to decide, by applying its own expert knowledge to the expert opinion in the recond, what are the likely consequences to the public helth and safety and the environnent of pemitting 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 occasiorally intervenors are able to produce an expert or experts to testify en such questions, they most often are 'imited to seeking to discredit the applicant's and staff's
, experts through cross-examination.
9 In these circumstances the Panel believes it unwise to relax the sepration of functions rule so as to pemit the staff to discuss pending cases with a presiding board. Regardless of how it is structured, this can only be viewed as pemitting the staff an off-the-record opportunity to convince the board of the correctness of its experts' opinions.
Pemitting the staff to privately O
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Cocmission 4
March 28, 1980 advocate its positions which have been publicly questioned by intervenors can only be characterized as unfair.
Intervenors already believe that the
" deck is stacked against them" in NRC proceedings. If by.this they mean j
that their resources are inadequate when compared to the staff's, they are i
right. Permitting such. contacts between the staff and presiding boards would Ibrther exacerbate the disadvantage and create' at least the appearance of unfair practices. The Panel believes the current prohibition on consulta-tion between the staff and presiddag boards should remain unchanged.
j Consultation between presiding boards and other Panel merbers presents dif--
i fering circumstances. Panel members have always considered such consulta-tions appropriate so long as the specifics of a matter in issue were not' 1
discussed. In other words, only general discussions are deemed appropriate.
The Comhsion currently has pending a proposed rule which, if adopted, would recognize the proprietary of off-the-record briefings of presiding boanis by other Panel menfoers on the general subject netter of an issue prior to the hearing on the issue. Further, the proposed rule would permit presid-ing boards to take advantage of the expert knowledge of other Panel members during and after the hearing, provided that such advice and assistance is rendered on the record. The Panel endorses these proposals. However, the e
Panel would oppose any effort to permit off-the-reconi assistance with regard to the specifics of an $ cme during or after hearing.
While such a practice does not present the same degree of unfairness as per.
mittirg off-the-record staff consultations with presiding boards, it does place the parties to a proceeding at a disadvantage'in that they would not have the opportunity to respond to an expert's criticism of the content of the reconi. Fairness requires that those designated to make the decision actudy make it and that any criticism or ccument on the content of the record glven to the decisionmakers similarly be on the record. Of course, presiding boards should be pemitted to take advantage of appropriate assist-ance fzun their staff.
SirniW1y, we do not believe that pennitting consultation among the Conmis-sioners, Appeal Panel members, and Licensing Board Panel members is wise.
Not only does it suffer frcm the same problems as consultations between Panel members an:1 presiding boanis, it could pemit off-the-record explanations and, justifications for particular decisions.
In sum, the Panel believes that the present separation of functions rule should be' modified in accord with the proposed rule discussed above, but should otherwise remain unchanged. In the Panel's view any changes beyond those already proposed would only present problems without any accompany $ng benefits.
e cc: Leonard Eickwit, OGC Alan Rosenthal, ASULD C$aguel J. Chilk, SECY 4
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