ML20006A057

Motion for Reconsideration.* Urges Board to Reconsider Actions Taken to Date & Refrain from Future Micromgt Case, Per 891221 Memorandum & Order.Certificate of Svc Encl

ML20006A057
Person / Time
Site:	07000025
Issue date:	01/15/1990
From:	Jeffrey Scott AFFILIATION NOT ASSIGNED
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#190-9700 89-594-01-ML, 89-594-1-ML, ML, NUDOCS 9001250149
Download: ML20006A057 (10)

Text

,g s

s lh??l]

JOnuOry 15, 1990 DOCKETED USNRC BEFORE THE 10 JNi 19 P4:49 ATOMIC SAFETY AND LICENSING APPEAL BOARD

"~

'U.S.

NUCLEAR REGULATORY COMMISSION crr!CE OF SECRETARY TOCKEiglyAj!Rvict onAnh

)

In the' Matter of

)

Docket No. 70-25 'US '

4 ROCKWELL INTERNATIONAL

)

-CORPORATION

)

ASLBP No. 89-594-01-ML' Rocketdyne Division

)

)

(Special Nuclear Materials )

License No. SNM-21)

)

)

Motion for Reconsideration u,

5 In response to your Memorandem and Ordur dated December 23,

'198'9,_

I find it necessary to raice the following points and respectfully request that_you. reconsider the actions taken:

r 1.

The Memorandum and Order devotes a

number of pages attempting to' support the Appeal Board's claim that the Presiding Officer in the Rockwell relicensing proceeding

" appears to be engaging in a

form of judicial activism (i. e.

discovery) unprecedented in NRC licensing proceedings."

This is clearly not the case.

10 CFR 2.1233 states explicitly:

"The presiding officer also

may, on his.

or her initiative, submit written 9001250149 900115 PDR ADOCK 07000025 b@

O C

PDR Q

et

,1. j.-

1

. s.g L '

questions to the parties to be answered in writing, under oath or affirmation, and supported by appropriate documentary

data, I'

informational

material, or other written evidence."

Additionally, please note that there is absolutely no statement in the regulations

~

that-this must occur after the evidentary filings by the parties. If the Appeal Board wishes the regulations did so

read, it should petition the Commission for rulemaking. Attempting to add provisions th're is precisely the kind of to regulations when they are not e

" judicial activism" of which the Appeal Board accuses, incorrectly, f

the Rochwell case presiding officer.

Indeed, the presiding officer in this case has evwn greater J

-authority pursuant to the regulations to obtain relevant information than he has exercised to dato.

For ext.rple, 10 CFR 2,1209 states that -"The purpose of this provisiot. is to make it clear that the p2esiding officer has the authartty under AEA section 161 v,

42 U.S.C. 2201(c) to issue a subpoena for documents or witnesses if, in the: course of conducting proceeding, he or she determines that the information is necessary for the full and fair exploration of the issues involved and finds that the information will not be supplied voluntarily.

The issuance of such an order is solely within the power and discretion of the presiding officer."

The presiding

officer, thus has even more authority than he has chosen to exercise.

< :c J, ;;;

'L' 3

,M!hf 3;p

-It is _ clear that the presiding officer is not engaging in a

5 gagjfp L/(6MOfotat of.judibial. activism; on the contrary,-he appears to be "doing k[hh l

^

k his job"! to ensurela reasonable record upon which to make important public-health and' safety findings.

r

'2..

On page 13 of the Memorandum and. Order, the Appeal Board states

that it.is-the NRC staff-not.the presiding officer-who determines h

what.

information is relevant to a.pending application and hearing requests.

However, it.is explicitly stated in 10 CFR 2.1231 that final authority in_this regard rests with the' presiding officer, not the'.NRC istaff:

"The presiding officer shall' rule upon any issue m

.regarding the ; appropriate materials for the hearing file."

Judge Bloch was in full accordance wj FR rules.

3.

On page 13 it is further ed: "The Presiding Officer here has turned 1this process on its hood by requiring the applicant and staff to supply. extensive -information-of dubious relevance..."

The information'the presiding officer requested was clearly relevant due to questions regarding Rockwell's past operations.

The central

' issue in this proceeding has been whether Rockwell can operate in a

safe manner given its past, recently described by EPA, DOE, and the state. health department, of an extensive history of accidents and environmental contamination.

L'

~

m. '

1,3-3,f4 i4.10n page'22,. as; prime, support for. the Appeal' Board's extraordinary claim that settlement conferences must be on the record'and public, 13; NRC at 456Iis cited.

Quite frankly, the citing by the Appeal

-Board of 13 NRC at.4'56'is perplexing as there is nothing in the

. cited passage to support'the Appeal Board's claim.

(See attachment A)l.

lNowhere' does it-state that the meetings cannot be held in s

private-nor without

-a court reporter present.

The citation in question merely_says that settlement conferences with the licensing board present are encouraged; it is entirely silent as to the matter f

.tihie Appealt Board relies upon. the citation for as its support for its 8

claim that'these conferences must be public and on the record, j

l Such a

claim is, furthermore, contrary to long Commission j

i practice.and the practice in virtually all other legal and j

cdministrative settings.

Settlement conferences, including when a presiding ~ : officer is present, are routinely off-the-record and not public,~Lin: order to~ encourage settlement.

l A

settlement conference with the presiding officer in attendance, in my opinon, and, apparently, that of the other parties a

as well, could be. beneficial.

As in any other off-record discussion l

~(e.g.,

conference calls on scheduling matters), a presiding officer

,1 fi's expected to limit the discussion in his presence to areas

permissible-in such off-record settings.

But that is all a very standard practice.

Therefore, we see no reason why the presiding s

- officer? and Rockwell cannot attend. settlement negotiations as is

[

, previously agreed to by all parties.

L 1

The Lappeal'. board's, action can-only have the effect of h

Econtradicting NRC policy of encouraging settlement, since Rockwell 9-N refuses to participate in such conferences if.they are indeed public._

_Indeed, it has already had the effect of canceling the

- settlement conference previously scheduled with Judge.Bloch for January 26, because,:Rockwell declines to participate if. the conditions' ordered in the Appeal Board Memorandum and Order were to be required-that the sessions be on-record and public, y

5.-

The very.taking of these various actions on the Appeal Board's ownLmotion is very troubling.

No party had complained; no motions for. interlocutory appelate relief had been filed; no injury has been asserted by'any party to the proceeding.

Indeed, the presence of the' presiding officer in the settlement conferences had been welcomed by all. parties, and the off-record nature of them had been insisted upon by one of the

parties, Rockwell.

Furthermore, in taking,the matter up on its own motion, the Appeal Board provided no

- opportunity for affected parties to respond to the Appeal Board's motion.

The Appeal Board is both the author of the motions at hand and' the judge of its own motions; thus excluding the affected parties-from responding to the Appeal Board's own motions is doubly r.

wa

~'

2 m.

M L M 4>

.y

,i 2

'1 J sbridus~dipartura from fcir proctice and carries with it the-clear appearance;of-being'arbit'r'ary and capricious, p( m' l

I take particular. exception to_the statement on page 2,

f I

b, footnote 1.

Since neither Rockwell.nor any of the intervenors have

(

filed; complaints and there are no injured. parties, it is, y

g stherefore,l wholly inappropriate for the Appeal Board 1to intervene at-

{k-

'thisftime'.

~.The Presiding Officer's orders, in my opinion, have not A

" fundamentally alter'(ed)" the proceeding before it got under. way.

1 In' particular, the presiding officer's action in requesting f

sr inform' tion 'for the record is an entirely appropriate effort to a

u <

enableia fair hearing and to have a reasonable record upon which' to.

' assess the history of the licensee's operation of the facility whose p

\\;

renewalurequest is1the matter at issue in the proceeding.

In fact, j

j perhaps. the central contested issue in this. proceeding, raised by

. essentially! alllof the'intervenors, is whether the past record of h

n

~ accidents and-environmental releases,.

criticized in a series of recent' DOE,

. EPA, and State Health Department

reports, should 1-preclude renewal'of Rockwell's license to possess and continue to

?use Special Nuclear Materials at the site in question.

The i

presiding officer was merely exercising the authority granted him to 3

.obtain-a, record necessary for ruling on the contested matters in the proceeding.

This was entirely appropriate.

In raising the matters that it did, however, on its own motion, I

with no complaint filed by any party and long before an initial f

=

f

. LG 6 ?n' 8

i k,

y;s:

x 74 V tec '

i deci.sionLis? issued,and th'en ruling'on its own motion without first

~

-t 4

s bc fpermitting (theLaffected parties to provide briefs on the motion the

~

n',_-

.' + iAppeal

;Boardz raisedLon its'own~ initiative, the Appeal. _ Board has h

' acted

'in ~ an. arbitrary and capricious fashion and-violated

[

~

Y i

. fundamental procedures.

y, ll t

Conclusion i

)

i..

'l I

urge: the Board 'totreconsider 'its actions to date

and, f?

Lfurthermore, to. refrain in~the future from such micro-management.of~

~

the. case.below.

LLet'the-process take its

course, and, in.the standard ' procedure' fo'r such matters, decide whether error has o

occurredjifLparties appeal'the outcome after an initial decision has

!been reach 6d. "This micro-management of day-to day operations of the N

Elicensing' -proceedings by the Appeal Board, -taken on~its own motion when Eno' party has. asserted any injury nor filed any complaint and s

while-the proceedinguis just beginning, is extremely disruptive to fthe _ process and goes far beyond the appropriate role of the Appeal E

JBoard.

i Respectfully submitted, co k Jon Scott s

1

~

's, board should exercise its best judgment to uy so anucipaseyuuns awes 1' ^

' by the Board that'a greater number ofinterrogatories bjustified. Pending g which may require such guidance so that the reference or cert (icassen can 9

' Cornmmion decision on the proposed rule, the Boards are reminded that.

be made and the response received without holdin5 "P 8he r ----J E &9-they 'may limit the number of interrogatories in accordance with;the.

' Commission's rules.

i _

Accordingly, the boards should manage and supervise all discovery, G. Sn-mary E' ; "

~

~

c including not only the intidal discovery directly following admission of

~

~'

4 "

q contentions, but also any discovery conducted thereafter. The Commission -

In exercising its authority to regulate the course'of a' hearing, the boards -

again endorses' the policy of voluntary discovery, and encourages 'the should encourage the parties to invoke the summary disposition procedure :

boards,in consultation with the parties, to establish time frames for the :

on issues where there is no genuine issue of material fact so that evidentiary

~~

completion of both voluntary and involuntary discovery. Each individual hearmg time is not unnecessarily devoted to such issues.

board shall determine the method by which it supervises the discovery process. Possible methods include, but are not limited to, written reports.

R Trial Brich, PnfHed l'hg Nh from the parties, telephone conference calls, and status report conferences gg on the record. In virtually all instances, individual boards should schedule an initial conference with the parties to set a general discovery schedule All or any combination of these deviccs should be acquired at the t immediately after contentions have been admitted.

discretion of the board to expedite the..idenly presemanon by each party of.

its case. He Commission believes that uoss.csaminau.,n plana, which ase F-Settlement Conference to be. submitted to the board 'ahme, wouht he of benefit in nwet.

proceedings. Each board rnust deade whnh deme os der ces would be Licens ng boards are encouraged to hold settlement conferences with nwst. fnntful in managing or n g.ciliimp proceedmg by hmismg its the parues Such conferences are to serve the purpose of resolving as many unnecessary direct oral testimony and crosecsammanm.

contentions as possible by negotiation. The conference is' intended toi (a) have the parties identify those contentions no longer considered valid or I.

Combining Reimstal and Surecimes:.I 'lestinie,eiv important by their sponsor as a result of information generated through discovery, so that such contentions can be eliminated from the proceeding, and (bi to have the parties negotiate a resolution, wherever possible, of all For particular, highly techmcal iam s. b. suds ase enu.maged duimp or part of any contention still held vahd and important. De settlement rebuttal and surrebuttal to put opposme utnesses on the stand at she same conference is not intended to replace the prehearing conferences provided ume so that each witness will be atJe to u,mment immediately on an by 10 CFR 2.751a and 2.752.

opposing witness

• answer to a quesinin. Appen.hm A to 10 CFR Past 2 exphcitly recognizes that a board may find it hcipf ul to ' take expcs:

F. Timely Rulings on Prehearing Matters testimony from witnesses on a sourxbiable basis alice the receipt m evidence of prepared testimony.

4 he hcensing boards should issue timely rulings on all matters. In parucular, rulings should be issued on crucial or potentially dispositive J.

Filing of Prvposed Findings of Fact and Camrtusinen of im issues at the earhest practicable juncture in the proceeding. Such rulings

'I may chnunate the need to adjudicate one or more subsidiary issues. Any Parties should be. expected to file psogewd fin *Imgs of fact and ruling which would affect the scope of an evidentiary presentation should conclusions of law on issues which they have saewd The boards, in their be rendered well before the presentation in question. Rulings on procedural discretion, may refuse to rule on an issue m then meual decisi<m if the paity matters to regulate the course of the hearing should also be rendered early.

raising the issue has not fded proposed findmgs of fact and conclusions of If a sigmficant legal or policy question is presented on which Commis-law.

sion guidance is needed, a board should promptly refer or certify the matter to the Atomic Safety and Licensing Appeal Board or the Commission. A ATTACllMENT A ATTACHMENT A TTACIIMENT A 457 456

+

Ib L

.BEFORE THE

' ATOMIC ~ SAFETY AND LICENSING APPEAL BOARD

+

U.S.

NUCLEAR _ REGULATORY COMMISSION 00tKlTED

~In.the-Matter of USNHC I

ROCKWELL" INTERNATIONAL CORPORATION 10 JW 19 P4 :49 D chet No.(s)-70-25 ML

{ (Rocketdyne 'D' ivision_, Special

~

Nuclear Materials License SNM-21) 0FFICE OF i,ECRETARY DOCKl.IING A SERVICE BRANCH CERTIFICATE OF SERVICE I=hereby; certify 1that_ copies of the-foregoing Motion for Reconsideration h2ve been served _ upon the f ollowing persons by U.S. mail, first~ class, except Os otherwise noted and in accordance with the require.nents of 10 CFR Sec. 2. 712 -

DAdministrative Judge hAdministrative Judge-

' Christine N. Kohl, Chairman

.G. Paul Bollwerk, III

-Atcmic-Safety and Licensing Appeal Atomic Safety and Licensing Appeal

-Board Board

'U;S. Nuclear Regulatory Commission.

U.S. Nuclear, Regulatory Commission iWeshington, DC 20555-Washington, DC 20555 L* Administrative Judge Administrative Judge Howard.A. Wilber Peter B. Bloch AtcmicJSafety and Licensing Appeal Presiding Officer Board Atomic Safety and Licensing Board

-U'.S. Nuclear-Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 1 Administrative Judge Office of the General Counsel D Gus tave A. Linenberger, _ J r U.S.

Nuclear Regulatory Commission (Sp;cial. Assistant _

Washington, DC 20555

. Atomic _ Safety and. Licensing Board

~

. ::shington, DC 20555 W

R: T. Lancet Director-Daniel Hirsch Rockwell International Corporation President

- Rocketdyne Division Committee to Bridge the Gap

_6633 Canoga Avenue 1637 Butler Avenue, Suite 203

.C:noga Park, CA 91304 Los Angeles, CA 90025

.Estelle Lit.

Jerome E.

Raskins, et. al.

18233 Bermuda Street c/o 18350 Los Alimos Northridge, CA.91326 Northridge, CA 91326

' Dona'Id W._Wallace stn r y Nichols, Esquire 1-710 North Cold Canyon Rozol

'ounsel t'or Natural Resources Calabasas, CA 91302 Defense Council

e 1350 New York Avenue, NW Washinnton, DC 20005

• Federal' Express

x.

c.

,;ifDoc N.

o ti L. n t rg(d ).I 70'-25-ML NM R;c;nsiderati:n.

Ar-

i.;

• 4 ISh31$o'n: Cl~Plotkin, Ph. D':,- P.E.

Barbara Johnson g"'

Ex:cutive, Board Representative-.

President.

TS'uthern California' Federation of.

Susana1 Knolls. Homeowners:Associatior k ' U Scientists c/o 6714 Clear Springs Road:

3318.Colbert Avenue Susana Knol'Is, CA 93063L

~

Los, Angeles'.CA 90066' Nohn Sherman,.. M. D.

' Daniel Gross, M.D.

i

~25067 Lewis:and' Clark. Road 24835 Long: Valley Road 1 Hidden Hills', CA 91302 Hidden Hills, CA 91302 dohn-Douglas,.'M.D.

Richard Rubenstein, M.D.

.99cBuckskin-' Road 39 Appaloosa Lane-

~

C:rioga' Park, 'CA 91307L Canoga Park ~,.CA'91307 oCecelia Riddle' S;ni'or Librarian 1 iChatsworth Branch Library 121052-Devonshire Street' Ch:tsworth,-CA 91311' h

I

, sDated'at Bell = Canyon, cat this

16-l day ~of January-1990 wSk Jon ScoVt 5

i

)

b 4

v 9

i s