Text

Responds to Re Constitutent Roth Inquiry Re Whether Info Requested by Commission Judge Concerning Facility Would Be Supplied.Subj Info Supplied by Facility on 891104.Related Info,Including Aslab 891221 Order,Encl
	ML20005F353
Person / Time
Site:	07000025
Issue date:	12/28/1989
From:	Scinto J; NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Cranston A; SENATE
Shared Package
ML20005F354	List: ML20005F353; ML20005F360;
References
	CCS, NUDOCS 9001160210
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o UNITED STATES

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NUCLEAR REGULATORY COMMISSION WASHINGTON, D C,20565 5

DEC 2 81999

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Honorable Alan Cranston United States Senate Washington, DC 20510

Dear Senator Cranston:

This letter replies to your letter dated November 27, 1989 which enclosed an inquiry from your constituent, Mr. Roth. Mr. Roth's lett! r asked whether information requested by the Commission's Administrative Judge concerning the l

Rocketdyne facility at Rockwell International Corporation's Santa Susana site would be supplied. Mr. Roth referred to a newspaper article that he believed raised a question as to whether the information would be provided.

In fact, the information requested by the Administrative Judge was supplied by the Rockwell Corporation on November 4, 1989. The information is available for public inspection at the Chatsworth Branch Library, 21052 Devonshire Street, Chat: worth, CA 91311, the Conctission's Local Public Document Room established for public information.

The proceeding referenced by Mr. Roth's letter is an administrative hearing considering the May 1989 application by Rockwell Corporation for renewal of the NRC license for nuclear materials at the Rocketdyne facility. Petitions to intervene and issues of concern are presently under consideration by the Administrative Judge appointed to preside at the proceeding. A ruling on the application will be made after presentation of evidence by the parties to the L

proceeding.

On November 2, 1989 Rockwell Corporation informed the Commission that it was modifying its original tpplication for a full term license renewal to seek only a one year renewal and subsequent decommissioning of the Rocketdyne facility. All information concerning the renewal application for the Rocketdyne facility has been placed in the Local PctHe Document Room at Chatsworth,losure.CA except for the facility security plan which is protected from public disc Mr. Roth's concern about the report in the newspaper discussing an order by the Atomic Safety and Licensing Appeal Board to Judge Bloch questioning some of Judge Bloch's inquiries in the proceeding, involves certain procedural matters addressed in the Appeal Board's order dated October 5,1989. On October 13, 1989 Judge Bloch responded to the questions posed by the Appeal Board and on December 21, 1989 the Appeal Board issued a Memorandum and Order containing directives and guidance to the presiding Judge. A copy of the Appeal Board's December 21, 1989 Memorandum and Order is attached, h

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i 2-m Honorable Alan Cranston i

1,1 I trust this information has answered the inquiry of your constituent.

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Js e F. Scinto 1'

.er uty General Counsel for Hearings, Enforement and Administration

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Sincerely, 1

Joseph F. Scinto Deputy General Counsel for Hearings.

Enforcement and Administration i

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DATE

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'89 DEC 21 P4 $4 ATOMIC SAFETY AND LICENSING APPEAL BOARD

r-Administrative Judges:

5.. s Christine N. Kohl, Chmirman December' 21, 1989 Howard A. Wilber (ALAB-925) 1 G. Paul Bollwerk, III o

j $ERVED DEC 22 95 3

In the Matter of

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2gf'J ROCKWELL INTERNATIONAL

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Docket No. 70-25 CORPORATION

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(License Renewal)

Rocketdyne Division

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(Special Nuclear Material

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License Number SNM-21)

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MEMORANDUM AND ORDER i

L This proceeding, involving applicant Rockwell e

International Corporation's request for a renewal of its special nuclear material license issued under 10 C.F.R. Part 70, is one of the first to be conducted pursuant to the Commission's new rules for informal materials licensing adjudications.

See 54 Fed. Reg. 8269, 8276-80 (1989) (to be u

codified as 10 C.F.R. Part 2, Subpart L, $ 2.1201 et seq.).

In an unpublished order dated October 5, 1989, we observed u

(at 1) that the Presiding Officer assigned to this l

proceeding " appears to be engaging in a form of judicial activism (i.e., discovery) unprecedented in NRC licensing proceedings, in general, and seemingly not contemplated by the special rules that apply to this proceeding, in particular."

In this regard, we referred specifically to N

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three orders issued by the Presiding Officer in which he requested. extensive information from primarily the l

applicant.

Invoking our directed certification power under

'the rules, 10 C.F.R. $$ 2.1209(d), 2.1255, we crdered the Presiding Officer to explain his authority.for-taking this action.

The Presiding Officer responded on October 13 in a published memorandum and order, LBP-89-29, 30 NRC 9

(1989).

Subsequently, he has issued several additional

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orders that raise still other concerns respecting conformity L

with the new Subpart L rules for informal adjudications.

We

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l now address the Presiding Officer's explanation and set forth our understanding of how the Commission intends informal adjudications such as this to proceed.I To this 1

In his October 13 memorandum and order, the Preciding Officer counsels that the "[ulnilateral action" we have undertaken in soliciting his explanation should be exercised

" sparingly."

We agree.

Indeed, it has apparently been almost ten years since the last such reported instance in a formal adjudication.

See Puerto Rico Electric Power Authority (North Coast Nuclear Plant, Unit 1), ALAB-605, 12 NRC 153 (1980).

Nonetheless, when the circumstances call for such action, we will not hostitate to act -- on our own or in response to a request -- in fulfillment of the responsibility delegated to us by the Commission to assure that the agency's proceedings, both formal and informal, are being conducted by the rules, as intended.

Our action here has been undertaken on our own initiative out of necessity:

the NRC staff has chosen not to participate as a party; Rockwell has not shown the interest in ensuring. compliance with the-agency *s procedural rules usually demonstrated by an' applicant; the intervenors appear to be unfamiliar with (Footnote Continued)

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and, we also issue certain directives to the Presiding

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Officer vis-a-vis the future course of this proceeding.

A.

Background

on May 25, 1989, Rockwell submitted to the NRC staff'an application for a 10-year renewal of its license to possess and use special nuclear material pursuant to 10 C.F.R. Part 70.2 Three requests for a hearing on the application were filed in June and later referred by the Commission's Secretary to the Atomic Safety and Licensing Board Panel.

Administrative Judge Peter B. Bloch was designated Presiding i

(Footnote Continued)

NRC proceedings; and the Presiding Officer's orders L

themselves are essentially sua sponte.

i As set forth below, the Presiding Officer's rather unorthodox orders have " fundamentally alter (ed) the very l

shape" of this proceeding before it has barely gotten under way, thereby warranting our interlocutory review.

Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units T and 2), ALAB-675, 15 NRC 1105, 1113 (1982).

Moreover, given that this is among the first Subpart L proceedings, L

the Presiding Officer's actions potentially have greater generic implications.

Thus, if such actions are inconsistent with Subpart L, they should be disavowed now, lest they become a blueprint for future informal adjudications.

See Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-687,16 NRC 460, 464-65 (1982) (appeal board undertakes interlocutory review of licensing board ruling insofar as it interprets the Rules of Practica),

reversed in part on other grounds, CLI-83-19, 17 NRC 1041 L

(1983).

2 For a definition of "special nuclear material,' see section 11.aa of the Atomic Energy Act of 1954, as amended, 42 U.S.C. $ 2014.aa.

3 The hearing requests were filed by Jon Scott, Estelle Lit, and Jerome E. Raskin, et al.

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r Officer on August 21.

54 Fed. Reg. 35,550 (1989).

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immediately scheduled a telephone conference call for i

september 1 and invited the three petitioners to amend their hearing requests so as to comply with Subpart L and to show how their interests are germane to the proceeding.

Memorandum and Order (August 22, 1989) at 5-6; Memorandum (August 31, 1989).

The record does not reflect whether the telephone conference took place, but on September 1 the Presiding Officer scheduled a ' limited appearance" session in California near the Rockwell facility, followed by a "prehearing conference" for the purpose of conducting oral argument on whether the petitions for hearing should be granted.

Memorandum and Order (September 1, 1989).

These sessions were held on September 28 and 29.

Before ruling on any of the requests for hearing, however, the Presiding Officer issued two orders requesting substantial information from the applicant.

First, on Septenber 15, he directed Rockwell to submit, under oath, specified "information about all significant chemical and radiological contamination incidents or releases at Santa l

Susana Field Laboratory (with respect to activities pursuant l

l to License SNM-21 or with respect to DOE (Department of Energy) activities conducted in Area IV or in close proximity to licensed activities) since 1969.'

Memorandum l

and Order (September 15, 1989) at 1 (footnote omitted).

Three days later, the Presiding Officer requested the I

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i applicant's response to several questions concerning, inter alia, offsite emergency planning for its facility.

Memorandum and Order (September 18, 1989) at 2.

At the conclusion of the September 29 *prehearing j

conference,' the Presiding Officer orally granted the three apparently unopposed hearing requests and admitted ^those petitioners as intervenors to the proceeding.

Tr. 240.

No order to that effect, however, has ever been issued.

See ibid.4 Then, in a third request to the applicant, the l

Presiding Officer set forth his own additional concerns and posed still further questions based on his review of Rockwell's response to his earlier inquiry.

The Presiding Officer requested the applicant to submit " reports (unusual i

i occurrences, NCRs, RDs, environmental non-conformance reports, etc.) for events that occurred during the past 20 years, involving releases of radioactive materials,.

regardless of whether or not the standards of 10 C.F.R. $$

20.105 and 20.106 have been exceeded."

Specifying a filing 1

4 In a Federal Register notice dated October 2, 54 Fed.

Reg. 41,529 (1989), the Presiding Officer noted that 'three petitions to intervene were granted last Friday, September l

29,' but did not indicate who those intervenors are or how they satisfied the requirements of 10 C.F.R. $ 2.1205 (g).

l Likewise, the Presiding Officer's October 5 memorandum and order, LBP-89-27, 30 NRC (1989), establishes the schedule and procedures for filingc in this case, but does not identify the intervenors, let alone explain the basis of their standing and interest as parties.

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I date for intervenors, the Presiding Officer added:

"Intervenors may desire to litigate a concern derived from my inquiries."

Memorandum and Order (October 4, 1989) at 3.

The Presiding Officer also made a request of the NRC staff

-- not accompanied by an " order," however -- that it consider in its forthcoming.8afety Evaluation Report each of the comments made by speakers at the limited appearance

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l session and that it refer certain matters to DOE for its L

consideration.

Request (October 3, 1989) at 1-2.

These unusual requests for information at the very outset of the proceeding -- particularly the Presiding l

Officer's orders of September 15, Septamber 18, and October 4 -- prompted our October 5 order calling upon the Presiding Officer to explain the authority for his inquisitive actions.

In his response, the Presiding Officer first states that his actions were "taken in order to expedite this proceeding pursuant to Commission policy."

LBP-89-29, 30 NRC at (slip opinion at 3).

After conceding that "the orders requesting information from Applicants [ sic) may not have been authorized at the time they were issued by 10 C.F.R. $1233(a) [ sics 5 2.1233(a))," the Presiding Officer contends that "the possible error appears to be largely a technical cae and has not harmed any party."

Id. at (slip opinion at 4) (footnotes omitted).

He then explains that he properly exercised his authority under subpart L to ack ouestions so as to assure a complete record.

The

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Presiding officer stresses that he is " obligated 'not just

-to call balls and strikes'

. but to raise questions that would help to complete the. record so that a fair, informed j

and efficient decision (can) be made.'

If. at (slip opinion at 5).

See id. at (slip opinion at 8-11).

i Indeed, he concludes that the Commission's Subpsrt L rules place an especially heavy responsibility on a presiding l

officer to elicit information in informal adjudications like I

t this.

Ig. at

& n.10 (slip opinion at 5-6 & n.10).

t citing a number of decisions in which licensing beards (with our assertedly tacit approval) assumed an active role in obtaining information from parties in formal adjudications, the Presiding Officer further disputes the suggestion in our October 5 order that his actions are unprecedented in NRC licensing proceedings.

Id. at (slip opinion at 11-15).

The Presiding Officer concludes by ordering the staff to j

" include in the hearing file any materials or studies in its possession (that are not already in the hearing file) that relate to the way in which pollution at the Santa Susana q

facility was deposited there and to Rockwell's responsibility or lack of responsibility for that pollution."

Ig. at (slip opinion at 16).

After receiving and reviewing Rockwell's response to his October 4 request for information, the Presiding Officer acknowledged that "[a] full evaluation of the Response goes beyond my expertise and the expertise of my adviser because m,,me, er w

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we do not know the full extent of Rockwell's operations and because we lack professional expertise in quality-

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assurance.'

Memorandum (November 22, 1989) at 2.

He also noted that his ' concerns about quality ansurance do not by themselves call into question the issuance of the amended license that Rockwell has requested."

Ibid.

The Presiding Officer then asked the staff to review and provide him with its judgment about the acequacy of the applicant's response in this matter.

Id. at 2-3.

shifting gears, he also encouraged the parties to explore settlement possibilities.-

To that end, the Presiding Officer offered his assistance, suggesting that the negotiations under his auspices could be o

private and confidential."

Id. at 3.

Less than a week later, the Presiding Officer once j

L again ordered Rockwell to file certain information, this t

time about its onsite emergency plan.

Invoking 10 C.F.R. $

2.1213, he also directed the agency staff-to participate as a party on this issue.

The Presiding Officer's action was prompted by his review of an NRC Region V Inspection Report concerning matters raised at the September 28 limited appearance session by.a person whom the Presiding Officer went on to admit as a party to the proceeding.

LBP-89-37, 1

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30 NRC (November 28, 1989).5 Finally, in yet another 1

order and despite his earlier disclaimer of a lack of i

expertise in the area, the Presiding Officer posed deveral i

more questions to the staff concerning quality assurance matters.

Memorandum and Order (December 1,1989).

B.

Analysis 1.

As pertinent here, pursuant to the subpart L rules t-L for informal adjudications, the proceeding commences with

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the filing of a detailed request for a hearing on the i

subject materials license application ($ 2.1205(c), (d)):

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the applicant and NRC staf f may respond ($ 2.1205(f)); and, in deciding whether there will be any hearing at all, the preuiding officer 'shall determine that the specified areas of concern are germane to the subject matter of the i

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. that the petition is timely [,)

l 5 In three subsequent orders the Presiding Officer admitted five more intervenors, bringing the total to nine.

Memorandum and Order (November 29, 1989); Memorandum and

- Order (December 7, 1989); Memorandum and Order (December 19, 1989).

The occasion for the filing of these late petitions l

was Rockwell's November 2 amendment to its application, shortening the renewal period for the license from ten years i

to less than one year (i.e., till October 30, 1990), and the Presiding Officer's sua sponte 3xtension of time to petition to intervene.

54 Fed. Reg. 47,846 (1989).

We do not decide the issue here, but nonetheless note our doubt about the propriety of allowing or inviting such late petitions to intervene, when the license renewal application amendment that assertedly triggered them substantially limits the ccope of the license renewal originally requested.

See also Metropolitan Edison Co.

(Three Mile Island Nuclear Station,' Unit 1), ALAB-772,19 NRC 1193, 1248 (1984), reversed in part on other grounds, CLI-85-2, 21 NRC 282 (1985).

The critical fact-in those cases in which this principle has been invoked, however, is that the starting line-ups had been announced (i.e., the

- party-status of the participants had been determined), and.

the game was well under way (i.e., the issues to be litigated had been defined by the litigants and the proceedings were at the summary disposition or evidentiary hearing stage).

It is in that context that we have approved of licensing boards that have posed questions to the parties

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1 18 or solicited information and' documents.11 As we have seen, that is not the situation here.

The various other proceedings the Presiding Officer mentions as examples of where licensing boards engaged in

- active questioning of.the parties with great success and

- assertedly tacit appeal _ board approval (Comanche Peaki jtyg Rock,' Point Beach)-similarly do not provide precedential authority for the Presiding Officer's actions here.

For one thing, licensing' board conclusions on legal issues (such

. as the correct interpretation and application of the Rules of Practice) that are not-explicitly reviewed by an appeal board lack precedential effect.

Duke Power Co. (Cherokee Nuclear Station, Units 1, 2, and 3), ALAB-482, 7 NRC 979, 981 n.4; (1978)..Purther, the board questioning undertaken in all but one of the instances-cited appears to have been authorized under the applicable Rules of Practice.

That is, it.was for the purpose of possibly raising an issue sua 11 Indeed,11n'Three Mile Island, we found that "the

[ Licensing) Board should have pursued [a certain) inquiry.

. more fully on its own."

19 NRC at 1263.

This, however, was because Three Mile Island was a special proceeding instituted by the Commission itself to resolve certain Commission-specified issues, not dependent upon the active participation of the parties.

12 Comanche Peak, Big Rock, and Point Beach do have one thing in' common with this proceeding '-- the Presiding Officer here chaired the Licensing Board in each of those cases.

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19 sponte pursuant to 10 C.F.R. $ 2.760a (Texas Utilities Generating Co. (Comanche Peak Steam Electric Station,_ Units 1' and 2), LBP-83-43,18 NRC 122,150-53 (1983)), or it occurred at an appropriate later stage of the proceeding

. (e.g., Comanche Peak, LBP-86-36A, 24 NRC ' 575' (1986) id.,

'LBP-85-37, 22 NRC 601 (1985); id., LBP-85-32, 22 NRC 434 (1985) ; Consumers Power Co. (Big Rock Point Plant),

LBP-82-97,16 NRC 1439 -(1982), vacated and romanded on other grounds, ALAB-725, 17 NRC 562 - (1983)).

one remaining case on which the Presiding Officer relies, however, does bear a similarity to the matter at

. hand.

In Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Units 1 and 2)', LBP-81.-39,14 NRC 819 (1981), and id., LBP-81-44, 14 NRC 850 (1981), the Licensing Board posed-questions and requested information from the applicant at the very outset of the proceeding, before any intervention request had been granted and discovery undertaken.

But the Licensing Board's admittedly " extraordinary" action was teken because the applicant had requested urgent interim relief so that it could begin a steam generator tube sleeving demonstration program.

Id., LBP-81-39, 14 NRC at 821.

Significantly, on appeal we characterized the Board's procedures (specifically mentioning those in LBP-81-39 and LBP-81-44) as " badly in error" and reminded the Board that the Commission's Rules of Practice, which are sufficiently flexible to have accommodated the urgency in that

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e-proceeding, are intended to beLfollowed'and used; fundamental deviations therefrom are not=authorised.

Wisconsin Electric Power Co. (Point Beach Nuclear. Plant,

' Unit 1), ALAB-696,16 NRC 1245,1262-63 ' (1982).

Thus, the agency and court cases in which the. Presiding Officer seeks refuge provide no legitimate precedent'for his premature and t

extensive information requests to the applicant and staff 4

here..

3.

The Presiding Officer's extraordinary information 4

requests are not the only way in which this proceeding has strayed offfthe course prescribed by the subpart L rules.

q For example, in encouraging a settlement between Rockwell' and the intervenors, the Presiding officer suggested that he L

was available to facilitate a settlement and that "these negotiations could be private and confidential," as a way of discussing, among other things, "what information should be

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made available to the public.". November 22 Memorandum at

.3-4.. The Presiding Officer quite properly has encouraged.

i settlement.

See 10 C.F.R. S 2.1241.

The problem.is that the role he suggests for himself as a facilitator of

" private and confidential" negotiations, where determinations might be made about matters such as the l

general public's entitlement to information, is inconsistent with other rules in Subpart L and longstanding coinmission policy.

Under 10 C.F.R. S 2.1209(c), a presiding officer is clearly authorized to "[h]old conferences before or during

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si" 21 the. hearing for-settlement."- Although that provision does not specify that such conferences must be public,

. traditionally all conferences or meetings in connection with

'the agency's formal adjudications, held under the auspices

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and in.the presence of an NRC licensing board or presiding officer,.have--been open.to the public, unless matters of r

national or plant-security or classified, privileged, or proprietary information is involved.

See, e.g., 10 C.F.R. Part 2, J App. A, = $ II (d).

Cf. id. S 2.1203 (public L

-availability of records governed by 10 C.F.R. 6: 2.790, which provides that NRC records and documents relating.to-licensing proceedings shall be public unless specifically I

L exempted).

This practice reflects the fact that NRC proceedings are not merely centests between private litigants, but rather are intended to resolve matters in controversy in a manner that will protect the health and safety of the public generally.

As a consequence, we think it unlikely that the Commission intended to give a presiding.

officer in Subpart L proceedings greater discretion to hold nonpublic, " private and confidential" meetings with the parties.

Cf. id. S 2.1235 (b); 54 Fed. Reg. at 8274 t

(referring to the Subpart L provision on oral presentations, there was "no intention" "to give a presiding officer more

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latitude;to hold nonpublic informal hearings than is 1

provided for formal adjudications under Subpart G").13 The Presiding-Officer's encouragement of settlement i

hero.is-thus commendable, provided that he is not a t

partihipant in any private and confidential negotiations between the parties, and, conversely, that any such conferences in his presence are open to the public, absent compelling circumstances.

See CLI-81-8,13 NRC at 456.

If i

such efforts are-successful, the Presiding Officer will then be called upon to approve any resulting agreement if he finds it to be. fair, consistent with NRC regulations, and in the public-interest.

See 10 C.F.R. $ 2.12413 Combustion Engineering, Inc..(Hematite Fuel Fabrication Facility,-

Special Nuclear Materials License No. SNM-33), LBP-89-31, 30 NRC (October 27, 1989).

See also Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), LBP-89-14, 29 NRC 487, 488-89 (1989); id., LBP-89-22, 30 NRC (August-11,.1989); id., LBP-89-24, 30 NRC (August 30, 1989).

13 Apart from being out-of-step with Commission policy that virtually all NRC proceedings be public, a presiding officer's involvement in private settlement negotiations has another. potential' problem.

Being privy to such negotiations, particularly in instances that involve trank discussions of the strengths and weaknesses of the parties' legal and factual positions, could compromise a presiding officer's role as an impartial adjudicator, should the negotiations fail and the proceeding continue.

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Another questionable action is the Presiding Officer's several requests-to the'NRC staff,~which come close to oversight'of'the staff's work.

See October.3' Request; November 22 Memorandum; LBP-89-37, 30 NRC _ ;. December 1-Memorandum and Order.

But as the Commission explained in Carolina-Power and Light Co. (Shearon Harris Nuclear Power i

Plant, Units 1, 2, 3, and 4), CLI-80-12, 11 NRC 514, 516 (1980), adjudicatory boards are not authorized to " direct j

the staff in performance of [its). administrative functions."14 There is no reason to assume that this principle, which simply-recognizes the inherently different functions.of the technical. staff and neutral adjudicators,15-D would not apply. equally to presiding officers in Subpart L

. proceedings.

This-does not mean, however, that the Presiding Officer must ignore matters that' raise serious safety questions.

As discussed supra p. 11 and note 10, 14 In using the word " administrative," the Commission did not maan " ministerial."

The board. directive =to the staff at issue in Shearon Harris was to assess the capability of the applicant's management to operate the

-facility safely.

11 NRC at 515-16.

15 Simply put, the staff is to perform the technical review of license applications, and adjudicators are to resolve disputed issues between the parties.

The Presiding officer himself essentially recognized these different responsibilities when he conceded that a full evaluation of certain of the extensive information he requested from the applicant was beyond his expertise.

November 22 Memorandum at 2.

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24 there l's-a mechanism for bringing r.uch matters to the Commission's attention,10' C.F.R. S 2.1251(d). -See also Shearon Harris, 11 NRC at 517.

Finally, our review of the record discloses no written-

-order granting the first three_ petitions for hearing.

As noted1 supra p. 5, the Presiding Officer granted these petitions at the September 29 prehearing conference, but never committed this ruling to writing, addressing the appropriate factors as required by 10 C.F.R. $ 2.1205(g).

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To be sure, that section does not state in so many words that rulings on requests for a hearing must-be iri writing,

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but other provicions of Subpart-L clearly assume that to be g

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the case.

For example, sections 2.1205 (n) and 2.1231(a) refer)respectively,-to"serviceoftheorder"and"entryof the order."

Further, the determinations mandated by section j

2.1205(g)16 -- e.g.,

that the areas of concern specified in a petition for hearing are germane to the subject matter of the proceeding and that the requestor meets the judicial standards ~for standing -- are not readily amenable to oral l-ruling.

See also 10 C.F.R. $ 2.1205 (m) (concerning 16 It is noteworthy that the language of section 2.1205(g) ("shall determine") is mandatory, apparently even if there is no opposition to a request for hearing -- a circumstance-contemplated by the permissive language of section 2.1205(f) (the applicant and staff "may file an answer" to a request for a hearing).

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g 25-l conditions that might be imposed on the grant of.a requsst for.a hearing).

Cf. Philadelphia Electric Co. (Limerick Generating Station, Units-1 and 2), ALAB-819, 22 NRC 681, 727 n.61 (1985)- (criticizing licensing board's oral ruling on the' admission of a contention), aff'd ~ in part on other grounds >and review otherwise declined, CLI-86-5, 23 NRC 125 (1986), remanded in part on other grounds sub nom. Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719-(3d Cir. 1989).

And, for the sake of a complete record,'a written order:on a ruling as important as the granting-of requests for a L

hearing ils a necessary and not unduly burdensome formality.

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,As discussed above, the Presiding Officer has taken a number of. actions-that are contrary to the Commission's I

rules for informal adjudications, 10lC.F.R. Part 2, Subpart L.

No purpose would be served, however, by vacating those actions-now and romanding for remedial action.

But, during the future course of this proceeding,.the Presiding Officer I

is-instructed to comply with both the letter and intent of the Subpart-L rules.

In particular,-pursuant to 10 C.F.R.

$ 2.1251(d), the Presiding Officer is to examine and decide only those issues properly put into controversy by the i

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'l 26-t parties, absent some basis for invoking-the' exception found l

-in that-same provision.

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-It'is so ORDERED.

4 FOR THE APPEAL BOARD t

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7 Barbara-A. Tompkins Secretary to the Appeal Board

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.;c UN11ED STATES OF AMERICA

-NUCLEAR RE6ULATORY COMMISBION

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In the Matter of.

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ROCLWELL INTERNAtluNAL CORPORA 110N I

Docket No.(s) 70-25-ML 1

(Rocketdyne Division, Special-I Nuclear' Materials License SNM-21) l I

CER11 FICA 1E OF SERVICE I hereby certify that copies of the foregoing MEMORANDUM AND ORDER DTD 12/22 have. been Served upon the tollowing persons by U.S. sail, first class, except as otherwisa noted and in accordance with the requirements of 10 CFR Sec. 2.712.

Administrative Judoe Administrative Judge Christine N.

Kohl. Chairman G. Paul Bollwerk, 11!

4tomic Seiety and Licensing Appeal Atcete Safety and Licensing Appeal Board Board U.S. Nucleer. kequlatory Commissten U.S. Nuclear Regulatory Commission hashington, DC 20555 Washington, DC 20555 Aceinistrative Judge Administrative Judge Howerc A. Wilber Peter B. Bloch Atomic Safety and Licensing Appeal Fresiding Ofitter Board Atomic Safety and Licensing Board U.S. huclear Hegulatory Commission U.S. Nuclear begulatory Concission

. Washington, DC 20555 Washington, DC 20555 Adms nitt rat t ve Judge Gustave-A. Linenberger, Jr.

Special Assistant Office of the General Counsel Atomic Safety anc Licensing Board U.S.-Nuclear Regulatory Comaission U.S. Rutlear F.coul at ory Commi ssi on Washington, DC 2055S W shington, DC 20535

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Lantet Director Daniel Hirsch

-Rockwell International Corporation President hocketdyne Division Cossittee to Bridge the Gap 6633 Canoga Avenue 1637 But'er Avenue, Suite 203 Canoga Park, CA 91304 Los Angeles, CA 90025 Jon Scott Estelle Lit

-6 Eoundup Road 18233 Bermuda Street Bell Canyon, CA 91307 Northridge, CA 91326

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. : U. '

, Doc k et' No. (sl 70-2b-ML

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, MEh0RANDUM AND ORDER DTD 12/22 e

i Jerome E. haskins, et. al.

Donald W. Wallace c/o 18350 Los Alimos-1710 North Cold Canyon Road

-Northridge, CA 91326 Calabasas, CA 91302 Sheldon C. Plotkin, Ph.D,.P.

E..

. Mary Nichols, Esquire Executive Board Representative Counsel.f or Natural Resources Southern California Federation of Defense Council Scientists 1350 New York Avenue, NW 3318 Colbert-Avenue Washington, DC 20005' Los-Angeles, CA 90066 Jharbara Johnson 2

Presloent.

John Sherman. M.D.

Susana Knolls Homeowners Association-25067. Lewis and Clark Road clo 6'114 Clear Springs Road Hadden Hills, CA 91302 Susana knoils, CA 93v63 i

Drniel Gross, M.D.

John Douglas, M D.

I4635 Long Valley Road 99 Buckskin Roof Hniden hi!!s, CA 91302 Conago Park CA

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(-

Cecelia' Riddle o

)

Enchard Rubenstein, M.D..

Senior Librarian 3Y~Appaloose Lane Chatsworth branch Library L

-Canoge.Far6, CA '91307 21052 Devenshire Street Chatsworth, CA 91311 Dated at Rockville, Md. this 22 day of December 19 B't i

OffWe of the Secretary of the Commission l

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ML20005F353

Text

Dear Senator Cranston:

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