ML19318A078
| ML19318A078 | |
| Person / Time | |
|---|---|
| Site: | North Anna, Allens Creek  |
| Issue date: | 06/09/1980 |
| From: | Deale V DEALE, V.B. |
| To: | Ahearne J NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8006180429 | |
| Download: ML19318A078 (5) | |
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IIonorable John F. Ahearne 2
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Dear Chairman Ahearne:
As an attorney member of the Atomic Safety and Licensing Board Panel serving when called upon (1966-71; 1976-present), I have been troubled occasionally by how Atomic Safety and Licensing Appeal Boards exercise their role, I
It appears that sometimes when Appeal Boards deal with Licensing Board decisions on petitions to intervene, the Appeal Board action bears the stamp of legalism gone awry. In these cases, the Appeal Board decisions introduce into the nuclear licensing process delays, waste of legal and technical talents, and distraction from the substance of nuclear safety, health and environment. Allowing intervention to one who should not be allowed to intervene under reasonable construction of the Commission's regulations is a disservice to the public, to every party concerned, and to the particular petitioner, current promotions to increase public participation in hearings notwithstanding.
The legalistic stamp which Appeal Boards give the nuclear licensing process
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evidently finds its roots in the composition of the Appeal Panel: four lawyers and one technical person on a full-time basis and two other persons with technical background very much on a part-time basis.
Before a forum of that kind, the substance of issues imbedded in technical considerations which non-technical persons (such as lawyers) frequently treat with limited, hastily acquired knowledge tends to be placed in a legalistic set;ing. In such circumstance, it is not surprising to find the two lawyers on a typical Appeal Board prevailing over the single non-lawyer.
A fine example of this, where the two lawyers teamed together in misguided legalism against an unconvinced technical person, is found in the Allens Creek case.1/
II By contrast to the Appeal Panel, the Licensing Board Panel contains many more technica? persons than lawyers and its boards on construction permits, operating licenses and technical modifications thereto are prudently determined, pursuant to statutory boundaries, each to contain one lawyer and two technical persons.
If ALAB-590, April 22,1980.
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1 VALE NTIN E O. D EA L E Honorable John F. Ahearne June 9,1980 Page Two The reverse ratio for typical Appeal Boards of two lawyers and one specialist in a relevant technical subject raises a question about the focus of the licensing i
process:
is the licensing process more concerned about legal ramifications than the substance of pertinent technologies? Legitimate legal considerations, it would l
seem, can be amply protected for the Commission by a lawyer on a Licensing Board, presumably by another lawyer on an Appeal Board and by the lawyers at the service of the Commission in the Office of General Counsel. The justification for Appeal, Boards to be decidedly weighted in favor of lawyers at the expense of nuclear physicists, environmental scientists, seismologists, hydrologists, and so forth is not apparent.
Nuclear safety, for example, is not perceived as essentially related to a record of favorable decisions on legal questions in courts of appeals, whereas over-legalizing the nuclear licensing process breaks down efficiency in meeting substantive issues of nuclear safety and causes waste of time and resources. Nuclear safety is not a product of such waste.
We call to mind the North Anna case involving a proposed amendment to an operating license permitting expansion of a spent fuel pool. There, in reversing the Licensing Board's denials of two petitions to intervene, 2/ the Appeal Board effectively read out of the Commission's regulation on intervintion at 2.714(a)(2) that a petition for intervention shall set forth "with particularity" the interest of the petitioner and certain related considerations of the petitioner's interest. 3/
Then later, by accepting without sufficient cause under the Commission's Rules of Practice an untimely appeal by the intervenors of the Licensing Board's grant of the applicant's motion for summary disposition,,4_/ the Appeal Board imposed upon the applicant VEPCO additional unquantified uncertainty with the accompanying burden for all concerned of an oral hearing before the Appeal Board, a later petition by the intervenors for Commission review, and rounds of legal paperwork.
At length, the North Anna case was wound up when, on May 29, 1980, the Secretary of the Commission forwarded notice to counsel for the intervenors that their petition for Commission review wps deemed denied.
By comparison to this year's date of May 29, the Licensing Board's amended denials of petitions to intervene occurred on Dece'mber 19, 1978 and the Licensing Board's grant of the applicant's motion for summary disposition was issued on August 6, 1979.
As perpetuated by the Appeal Board, the North Anna case leaves the impression that its principal impact has.been to provide job security for lawyers both in and out of Government with no perceived offsetting value to the nuclear licensing process.
2_/
9 NRC 54, ALAB-552, January 26, 1979.
3/
9 NRC 361, Licensing Board's comments on ALAB-552, March 13,1979.
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10 NRC 554, ALAB-568, October 29, 1979.
U v A CE N Tk N E O. D E A L E Honorable John F. Ahearne June 9,1980 Page Three III The Appeal Board's decision in the Allens Creek case, which involves the reversal of a Licensing Board's decision denying intervention, raises the question of what is the n aaning of the requirement of the Commission's regulation on inter-vention that a petitioner to intervene must provide the bases for each of his contentions "with reasonable specificity," 2.714(b). Under the legalistic unrealism affected by Appeal Boards, Licensing Boards are constrained to treat mere assertions, speculative' theorizing, and idle claims or allegations of petitioners to intervene as serious statements of substance, without any attention to their merits, or lack thereof, when deciding whether to allow or deny a petition to intervene. Legal foolishness scores against common sense, good reason and sound law.
In both the Allens Creek case and the North Anna case, Appeal Boards have held up to favor the laborious, time-consuming motion for summary disposition as a reasonable means for applicants to deal with marginal petitioners to intervene.
Instead of permitting Licensing Boards to insist that a petitioner to intervene meaningfully develop his interest and related subjects "with particularity" and the bases for each of his contentions "with reasonable specificity," Appeal Boards effectively bypass the referenced provisions of the Commission's regulation on intervention and build up the burdensome motion fcr summary disposition as a possible way of obviating a needless trial.
A far different point of view from the Appeal Boards' is evidenced by the Supreme Court of the United States in its recent decision of Costle v. Pacific Legal Foundation, No. 70-1492, March 18,1980. In the Costle case, the Supreme Court held that agency rules may require an applicant for a hearing "to meet a threshold burden of tendering evidence suggesting the need for a hearing. See, eg., Weinberger v. Hvnson, Westcott & Dunning, 412 U.S. at 620-621 (1973), and cases cited therein." Id. Slip Op. at 15. The Supreme Court went on to reemphasize "the fundamental admTn,istrative law principle that 'the formulation of procedures was basically to be left within the discretion of the agencies to which Congress had confided the responsibility for substantive judgments.' Vermont-Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 524 (1978)."
Id., Slip Op. at 16.
Lest our comments leave a mistaken impression, we take this occasion to express disagreement with a former proposal that Appeal Boards be abolished. The function of the Appeal Panel, in our thinking, is useful and desirable: it is well for the Commission to have Appeal Boards double check decisions of Licensing J
- Boards.
From the standpoint of orderly management of adjudication within the Commission, neither members of the Commission, the Office of General Counsel, nor assistants to the Commissioners are an acceptable substitute for Appeal Boards.
How the authority and responsibility of the Appeal Panel should be defined and carried out is a separate question.
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... t VALE NTIN E O. D EAL E Honorable John F. Ahearne June 9,1980 Page Four IV The Nuclear Regulatory Commission ought to be characterized by technical savvy and speed in decision making. The Commission should not permit impractical legalisms to clutter up its nuclear licensing process.
As a move toward greater emphasis upon the substance of nuclear safety, health and environment and away from legal points of view, two recommendations to the Commission are offered:
First, to change the composition of its Appeal Panel in order to remove the present imbalance between Appeal Board members who are lawyers and those who are knowl-edgeable about the substance of relevant technical subjects, and Second, to jettison the excess legalistic baggage which Appeal Boards have forced the nuclear licensing process to carry when it deals with petitions to intervene.
The Commission could provide assurance to Licensing Boards of their entitlement to the " particularity" and " reasonable specificity" called for in the Commission's regulation on intervention and could also develop the theme on inter-
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vention requirements as approved in the Costle case by the Supreme Court of the United States. The Licensing Boards would thereby be in an improved position for ascertaining whether petitioners to intervene are likely to make a positive contribution to the record and whether their conten-tions are worthy of hearing.
It is submitted that these two recommendations would have a salutary effect upon the three concerns noted at the beginning of this letter, namely, delays, waste of legal and technical talents, and distraction from the substance of nuclear safety, health and environment.
Sincerel
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cc:
The Honorable Victor Gilinsky The Honorable Richard T. Kennedy The Honorable Joseph M. Hendrie The Honorable Peter A. Bradford Leonard Bickwit, General Counsel Alan S. Rosenthal, Chairman, Atomic Safety and Licensing Appeal Panel Robert M. Lazo, Acting Chairman, Atomic Safety and Licensing Board Panel Howard K. Shapar, Executive Legal Director Service lists for Allens Creek and North Anna cases
.