ML20012E300

Provides Justification for Commission Refusal to Answer Questions of House Interior Subcommittee on General Oversight & Investigations Re Min Evacuation Time for Nuclear Power Plants

ML20012E300
Person / Time
Site:	Seabrook
Issue date:	03/16/1990
From:	Parler W NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Carr, Roberts, Rogers NRC COMMISSION (OCM)
Shared Package
ML20012E299	List: ML20012E298 ML20012E300
References
NUDOCS 9004030186
Download: ML20012E300 (10)

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NUCLEAR REGULATORY COMMISSION

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March 16, 1990 MEMORANDUM FOR: Chairman Carr

' Comissioner Roberts Comissioner Rogers Comissioner Curtiss Comissioner Remick FROM:

William C. Parler General Counsel

.SUDJECT:

JUSTIFICATION FOR COMMISSION'S REFUSAL TO ANSWER QUESTIONS OF THE HOUSE INTERIOR SUBCOMMITTEE ON GENERAL OVERSIGHT AND INVESTIGATIONS At the March 14,'1990 hearing before the House Interior Subcomittee on General Oversight and Investigations, Congressman Markey asked the following question of Chairman Carr and Comissioners Rogers, Curtiss and Remick:

If there is no minimum evacuation time for a nuclear power plant, could the NRC' license a plant for which the minimum estimated evacuation time is 8 hours9.259259e-5 days <br />0.00222 hours <br />1.322751e-5 weeks <br />3.044e-6 months <br /> or 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />?

Because of the relationship of that question to the ongoing formal adjudicatory Seabrook licensing proceeding, the Chairman's and Comissioners' refusal to answer this question was fully justified.

My reasons follow.

Whether the. refusal. to answer the question was legally justified;is resolved by analysis of 'P111sbury v. FTC, 354. F.2d 952 (5th Cir.1966).1/ Pillsbury-involved a Fehral= Trade Comission proceeding against the Pillsbury Company for alleged violation of. the anti-merger provisions of the Clayton Act by the acquisition of two smaller companies. The case came before the Comission after the hearing examiner presiding over the proceeding granted P111sbury's motion to dismiss. The Comission then issued an interlocutory order -

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reversing the dismissal of the case on the grounds that a prima facie case had been established. However, in its order, the Comission also took the position that liability under Section 7 of the Clayton Act was to be governed by a rule of reason rather than a so-called "per se" rule that would limit the defenses to the prima facie case. The effect of tYe Comission's ruling was to send the case back to the hearing examiner to take further evidence and m

}/ ' The Pillsbury decision finds its roots in United States v. Morcan, 313 U.S.409(1941).

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. The Comissioners 2-tw:h 16,1990 -

l render a' decision on the merits.

That decision would in turn be reviewable by the Comission.

-The' Comission's interlocutory order provoked strong criticism from some-members of Congress, who believed that a "per se" rule should be applied under L

Section 7 of the Clayton Act, and therefore the FTC ruitng was-unduly generous to Pillsbury and similarly situated companies and could result in substantial i

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delays in bringing antitrust violators-to justice. Some eighteen months after the order was issued, hearings were held before the Subcommittee on Antitrust and Monopoly of-the Senate Judiciary Comittee and the Antitrust Subcomittee of the House _ Judiciary Comittee.1 Chairman Howrey of the FTC appaared.a?

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w those hearings, along with members of his staff, including the General Counsel, who was himself later appointed FTC chaiman at a time when the proceeding was still ptnding before the agency.

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_ Senator Kefauver questioned Chairman Howrey extremely closely about his interpretation of the statute and of the facts adduced in the proceeding, making clear his conviction that the Comission's ruling was both bad law and bad policy.

(Several pages of that dialogue were quoted by the Pillsbury court, in order to make its decision understandable.

354 F.2d 952, 955-62.)'

At one point, in response to Senator Kefauver's assertion that he had "done-some damage to [his] judicial position" by endorsng a particular report ~of an Attorney General's comittee. Chairman Howrey replied:

"Well, I think the question you are asking about the Pillsbury decision is a much greater challengs to judicial processes, because I am sitting as a-quasi-judicial officer in that case."

a Senator Kefauver responded

"Maybe you should not have answered iny question."

Chairman Howrey_then said:

e "I think I will disqualify myself in the Pillsbury case for the-rest of the case because of the inquiry which you have made about

ray mental processes in it.

I _do not think I can sit in a s

quasi-judicial capacity and -- I think you have delved too deeply into the quasi-judicial mind in the Pillsbury matter "

The administrative proceedings against Pillsbury culminated in a Comission finoing that the acquisition of the two companies did in fact violate the

Clayton Act, and Pillsbury was ordered to divest itself of the acquired businesses. On appeal to the'Fifth Circuit, one of the issues was, according Lto the court whether there were " violations of procedural due process of such a nature as to seriously infect tne proceedings in such a manner as to require a reversal of the ~Comission's order."

Discussing. the effect-on the proceedings of the Congressional hearings, the court observed:

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i The. Comissioners March 16. 1990 It is to be noted that these hearings were held after the Commis-sion had issued its interlocutory order, but long before the examiner-made his Initial Decision on the merits, and, of course, before'the Commission made its final decision.

354 F.2d 953,-

955.

Af ter: reviewing the F ture of the Congressional inquiry, the court concluded that it was not enwr.;n for Chaiman Howrey'alone to have disqualified himself.

In the court's viewethe Senators' questions " constituted an improper -

t intrusion into the adjudicatory processes of the Comission and were of such a daraaging character as to have required at least some of the members in' addition.to the Chairman to disqualify themselves." The court explained.

[W] hen such'an investigation focuses directly and substantisily upon the mental decisional processes of a Comission in-a case which is pending before it, Congress is no longer intervening in the aoency's legislative function, but rather, in its Tudicial

. function. - At this latter point, we become concerned wi th the right of private litigants to a fair trial end, equally important, with their right to the appearance of impartiality, which cannot be maintained unless those who exercise the judicial function are free from powerful external influences.

To subject an administrator"to a searching examination as to how and why he reached his decision in a case still pending before 3

-him, and to criticize him for reaching the " wrong" decision, as the Senate subcomittee did in this case. [ footnote omitted]

sacrifices the appearance of impartiality -- the _ sine qua non of American-judicial justice -- in favor of some short-run notions J

regarding the Congressional intent underlying an amendment to a statute, unfettered administration of which was comitted b Congress to the Federal Trade Comission [ citation omitted]y It may be argueo that.such officials as members of the Federal Trade-Commission-are sufficiently aware of the realities of governmental,'not to say.." political," life as to be able to f

withstand such questioning as we have outlined here. However, this court is not so " sophisticated" that it can shrug off such a procedural due process claim merely because the officials involved should be able to discount what is said~ and to disregard the force of the intrusion into the adjudicatory process. We i

conclude that we can areserve the rights of the litigants in a case such as this wit 1out having any adverse effect upon the L

legitimate exercise of the investigative power of Congress. What b

we do is to preserve the integrity of the judicial aspect of the j'

administrative process.

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= The'Comissioners March 16,1990 j

L'e conclude that-the order appealed from must be vacated and the case remanded to the Comission. [emphasisinthecourt's-opinion.)

1 The Pillsbury case is followeo in other circuits and is regarded as the leading case on the due-process implications of Congressional intrusion in agency adjudicatory decisionmaking processes. - E.g,, American.Public Gas Ass'n v. FPC, 567 F.2d 1016 (D.C. Cir.1977), c_ert. denied, 435 U.S. 907 (1978); STv. Wheeling Pittsburgh Corp., 648 F.2d 118 3d Cir.1981); U.S. v.

Armada Petroleum Corp., 562 F.Supp. 43 (S.D. Tex,1982)(.

The Pillsbury case -

(and cases following it) stands clearly for the proposition-that close Congressional examination of an agency's adjudicatory decisionmaking process, including criticism of the agency for reaching the " wrong" decision, in a case still pending before the agency, infringes upon.the due process rights of the

>arties to the case.

Its teachings have been incorporated in~ the Ethics Manual for flembers, Officers and Employees of the United States House of Representatives that'was prepared by the Staff of the Committee on Standards of 0fficia! Conduct at 168-169 (100th Cong. 1st Sess. 1987).

.The question asked by Congressman Markey was whether the Comission would license a plant with a minimum estimated evacuation (ETE) time of 8 hours9.259259e-5 days <br />0.00222 hours <br />1.322751e-5 weeks <br />3.044e-6 months <br /> or 12: hours. The question followed lengthy opening statements by Subcommittee members, several, of whom (including Congressman Markey) were extremely critical of the Comission's decisions on Seabrook emergency planning issues.

In applyino Pillsbury it should make no difference if the question does not specifically mention the Seabrook case, so long as the factual premise for the question rc'lects the litigation. position of one or more p6rties to the case and the enrver to'the question would be material to the matters in controversy in the case. 2/ Over 300 emergency planning issues were proffered for

'litigetion before the Comission in Seabrook, and over 80 were actually the i

subject of testimony at the evidentiary hearing which lasted over'100 days.

An extensive catalt.gue of all ETE-related issues in Seabrook is not possible within the-time constraints of this opinion. However, a focus on just one ETE issue still_ pending before the Comissioners amply demonstrates both that the factual predicate-for the question (a plant with-an ETE of 8 or 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />)

L 2f Moreover, a material issue in the case before the FTC in Pillsbury was the agency's interpretation of the Clayton Act as imposing a " rule of reason" rather than~ a "per se" rule for antitrust liability. This i:

interpretation was the subjEt of nuch of the prodding and criticism of the Congressional comittee. This issue is clearly generic in the sense that it can be characterized generally (i.e., do se" rule should apply to Clayton Act liaMTity?) you believe that a "per Accordingly, it is

'cTear that. generic questions are not exempt from Pillsbury's application J

if they are material to the case before the agency.

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-The7Commissionersi March'16, 1990-I reflects parties' litigatia W.lons in the Seabrook case, and that the answer to the question is waerial to resolution of the Seabrook adjudicatory proceeding.

In one of its briefs before the Appeal Board the Massachusetts Attorney General (Mass AG) argues strenuously.that in its decision on the New Hampshire emergencyplan(LBP-88-32)theLicensingBoarderredin-notseeing'the

" central controversy" to be "whether evacuation at Seabrook is an ' adequate protective measure' under 10 C.F.R. I 50.47(a)(1)" in view of the fact that the estimated peak beach evacuation time found by the. Licensing Board is "within a range of 74 and 81 hours9.375e-4 days <br />0.0225 hours <br />1.339286e-4 weeks <br />3.08205e-5 months <br />". Massachusetts Attorney General's Brief on Appeal of the Partial Initial Decision on the NHRERP LBP-88-32, March 24, 1989, at 46.

The Mass AG's brief further notes that Intervenors argued before the Licensing Board that a more accurate ETE for a Seabrook evacuation at a near peak was "at least 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />".

Id. at 47, note 36.

Thus, the factual predicate for Congressman Markey's question (an'ETE of 8 hours9.259259e-5 days <br />0.00222 hours <br />1.322751e-5 weeks <br />3.044e-6 months <br /> or 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />) fits aluost exactly the litigation position of Mass AG in

the Seabrook case (an ETE of at least 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> or, if the Licensing Board is correct, an ETE of 7) - 81 hours9.375e-4 days <br />0.0225 hours <br />1.339286e-4 weeks <br />3.08205e-5 months <br />).

Since -there must be ' reasonable assurance of " adequate protective measures" L

.under.10 C.F.R. 6 50.47(a) before any plant ~ including Seabrook can be

-licensed, the issue raised in the Mass AG's brief can be rephrased accurately as follows: The Licensing Board's decision is in error because-it failed to address the central issue whether Seabrook, with an ETE of either Bi hours'(according to the Licensing Board), or at least 12. hours (secording to P

Intervenors), can be-licensed by the Commission. This is precisely the question asked by Congressman Markey and its resolution is directly material to.the Seabrook adjudicatory procaeding.

This issue raised by Mass AG is still pending before the Appeal Board.

It is not-addressed in ALAB-924.

It is mentioned, however. in ALAB-922' at 16, note 37. - ;The Appeal Board here notes that while this specific assertion of u+

error by Mass' AG is: not addressed in the decision - the ultiriate> decision on the admissibility of Mass AG's proferred testimony on hypothetical accident doses (the specific subject of ALAB-922) will be pertinent to Mass AG's argument. The admissibility of the testimony on.hypothetice'.' accident doses 9

wasslater addressed specifically by the Commission in CLI-90-C2.

b Thus, whether a plant with an ETE of 74 - 81 hours9.375e-4 days <br />0.0225 hours <br />1.339286e-4 weeks <br />3.08205e-5 months <br />, or 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />, can be licensed under the'Comission's regulations is still pending for decision

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before the Appeal Board. The Appeal Board will presumably use the Commis-l sion's holding in CLI-90-02 in resolving this appeal.

Until all adjudicatory h

issues-in the Seabrook proceeding are fully resolved in a final agency L decision, the Comission's decision in CLI-90-02 is itself subject to Com-H, mission reconsideration. Thus, the question asked by Congressman Markey is L

pending before the Appeal Board and may subsequently come before the Commis-sion.

In addition, as a result of judicial review of agency decisions in this proceeding, the issue could be remanded for further agency consideration.

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The Commissioners March 16, 1990

-The foregoing analysis and conclusion applies direcily to Congressman Markey's question addressed to the three members of the _Comission who are partici r

pating in the adjudicatory decision process for contested Seabrook emergency planning issues -: Chairman Carr and Comissioners Roberts. and Rogers.

A-l different analysis applies to Comissioners Curtiss and Remick, but this 1

analysis indicates the same conclusion that the refusal to answer the question t

was fully justified.

r In connection with his Senate confirmation, Comissioner Curtiss promised to abstain from participating in Comission decisions on contested emergency

i planning issues in the Seabrook operating license proceeding.

See attached.

October 14,11988 Congressional Record at $16265. Comissioner Remick, in the attached November 16, 1989 letter to Senator Kerry of M6ssachusetts,

,1 disqualified.himself from voting on contested issues in the contested operating license proceeding for Seabrook. While the Commissioners' answers would not constitute voting in the Comission's Seabrook adjudicatory proceeding on contested emergency. planning issues, grave questions would still a

have been raised about the Comissioners' compliance with their written comitments.if the questions had been answered.

In Cinderella Career and Finishing-Schools v. FTC, 425 F.2d S83- (D.C. Cir.1970), the order of the FTC was vacateo and the case remanded because FTC Chainnan Dixon should have, but did not, disqualify himself for having prejudged the issues. The Court so r

held.notwithstanding that Chairman Dixon's vote was not needed for a majority voteLin the case. The Court stated. in this regard that:

litigants are entitled to-an impartial tribunal whether it consists of one man or twenty and there is no way which we know

'of whereby the' influence of one upon others can be~ quantitatively.

measured 425'F.2d at 592.

The same result obtains when an adjudicator.who is disqualified participates in Comission deliberations but then recuses-himself or herself from the actual final vote.

In such a case the entire decision must be' nullified and

-.the case. remanded because'there is no way of knowing how the disqualified i

.Coanissioner's discussions influenced the Comission's deliberations; L

Antonin v. SEC, 877 F.2d 721 (8th Cir. 1989), cert. denied, 58 USLW 3345

. (1990).. A disqualified Comissioner cannot merely abstain or not participate in the final Comission vote in the proceeding; he or she must also take no

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part whatsoever in any Commission deliberations in the proceeding or' attempt p

.to influence the final vote in any way.

If he or she does the entire decision is tainted.

When Commissioner Curtiss promised to abstain from participating in Commission

~ decisions on contested Seabrook emergency planning issues, and Comissioner Remick disqualified himself from voting on contested Seabrook issues, the rule of law applicable to disqualified Comissioners would fully apply to them to i

the same extent. Under the cases cited above, this meant not merely that they should not vote.-but also that they should not participate or influence the l

Comission's decision in any way. Answering the question posed to them by m-

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'- Congressman Markey. could easily be construed-as influencing the views, of the other Comission members, especially since the question went to a central contested issue in the Seabrook case. Accordingly, their refusal to respond was in accord with their confinnation commitments and fully-justified under

,l applicable law.

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1111am C. Parler -

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General Counsel-E

- Attachments:

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Curtiss and Remick Comitments

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f FORREST J. REMICK 305 EAST: HAMILTON AVENUs a

STATS COLLssa, PA 16801 Y

16 November 1989 i

The, Honorable John F. Kerry United' States Senate Washington, DC _20510-2102

Dear Senator Kerry:

j This letter is in response 'o the concerns which you expressed in our

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meetings of October l 24,1989 and November 15,_1989 relating to my nomination: to serve as a' member of the Nuc' ear Regulatory Cammf== fan.

.. As'Cha'.1 man of the Nuclear Regulatory comadssion's Advisory Cosenttee on

' Reactor. Safeguards, I have signed on behalf of the Comunittee a letter to the

~ Comadssioners expressing ~the Canadttee's view on emergency planning at the Seabrook Station-(Seabrook).

That letter was developed on the basis of.

presentations ~made to the Committee by interested persons and representatives of cognisant agencies and expresses the collegial and advisory views of the O

Comunittee. -I:do not believe that my participation a a member of the Canadttee-would necessarDy disgus11fy me from acting impartially on Seabrook; issues coudng to me for action in an adjudicatory context as a Commissioner.

I have no doubt that I could and would act on~ Seabrook matters as an.

'impardal adjudicator and would make my decision solely on the' basis of the l

~ adjudicatory record.; Nonetheless, I can understand,why some members of the

.public might question whether I would be able to consider opanmindedly the

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' Seabrook issues now pending before the comunission.- Consequently, I have _ -

reached-the conclusion'that I should disqualify.myself from voting on contested

Issues in the matter of the initial ' authorization for full power operation of the Seabrook Station.- In reaching my conclusion,~ I have been particularly sensitive to.

r the:postible perception of some members of the public of. the need for my

.m disqualifloation on'Seabrook rather than any reality of bias or lack of objectivity on my. part.1 I have reached this conclusion after consultation with the Nuclear Regulatory

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Commission's General Counsel.

'I-appreciate the opportunity to set forth my views on this matter.

Sincerely yours,

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J. Remick J.

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i 11 Submitted to the Congressional Record, October 14, 1988 1

(S 16265)

Scarmuur7 or Jaains R. Cemetes

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If I we confireses, et eeute te my inten, Plan ly. as an atterney and former Senate.

a Uen, prior se paruciestme in any asency omstoyee. I wm estamely sensitive to the --

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lasertanee of avoiding the seosmannse of-neues or eeemen invomas a matter with annfilet of intenet er usereonety for emane.

respect to a nien I has a suanaanual involve.

ment la my prenous sneacity as a stas!

suent seemans I macht maae en manaers.

memaet for the Commastae en Enetronement pmviously within sy ressor.sateuty. In car.

. and Puttle Weres to first consieer whether -

usular. I aan aware of eoneerns that have

' l tun essmose atmst my panteigneses as a

! ena appromen any sucts seeision er meten staff someerof the Committee sa Sneteen.

alth an open and Imparual mine.-la thag rosatt I woute intene to consuat with the ment and Ptablic Weres la mastere massed to emersonry pianaans for the aestrema comunaamsen a office of General Counses on Nuclear Power Plant ans. teanuse of that, the mlevant statutory and PJJtelal stane, ares, prior to rencame a fursinent toout my attuty le appranch CoeMaassaan eso.

tiens mvoinns emerserary prepareenass -

wnether it woule me accroonste for me to this factilly with an open and unear ;&i participase in any suen seemson er action, suna.

Acastionally. with respect to any saluesca.

I shouls my that while I have toen m.

fory DrocTeoins, at n'oute te my nntenuen to eet in t#w trees legassatsve peiler issue, first enamune the contest *e tasues tefore the C.iminnasiun for sectsten ane to rescue states te emersency plannant for ninetest t

myself from particteatms m any surn occi.

power plants Ja. my esonomy as a saMt sion it there is a erssanacle assas for sues.

memeer of the Commstsee en Environment, tienans my ability to ecasteer and reselv, and Putiac Worma, tverseenuns the wwwe suen issues in an imparual marmer terause aste pesatsons of the mammere ser enom I have worsee. I do not have a vie==ner se I of Drior involvement en my sert in seen L

t *" 'I ***'" "' " '##''unu'n' "m'the I

lasues surgr.s my tr..nem enameity as a statt an a mwen the antated m e m eer.

Seneroom proceesans c'Jrrently Mnetr.s In asettletL na any amas there the action, before the NRC.

or seension of the seeney u reevires te te Nonetheless. I slo believe that tite proces.

made named upon a termal ammanistrative tion of celectivity and tmeatusasty is critatal j

revert 14 woule te my intenuen first to to the mteerity of the Ceaugusseen's seen.

1 review the recore in any such proceesma in j

8'*"**"'88 8". I' intens to abstaan from a thorough manner pner to partle:patme in For Inis season any asener seemien er action involvms a partripatms in Commission seeisions on -

contestes issue in such proeveems. In that contested issues that hase arisen or mistat 3

tess>re ' tn new of the tomosessay of the,

artse in tan proepeans Womas the toe.

Shorenam proceesms and the contested euay of the mwney pmpamens stan j

tasues that han artsen m that proceesms, for trte Sestroom facnaty.

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as sell as the voluminous sommmrative revere satener compilee. I teleeve that for

' l the near future.1 will not te m a penit.en to i

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- have reviewee this leasthy rwore with the

,i thoroughness that aoute te necessary !?

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me to partleipate m the upcomans Commt e

- sion review process restrems the I.aeensens

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l Beare's Concluems Initial Decision en I,

Ernetsency Planmas. LBP.48 34 (Septem.

h ter 33.-19881. Incluems any subseeuent Appeed Beare escianens on review of that Lt.

eensms soare seemon. er is paruei. ate a penctns er upcomme Comnussaan seeisens on contestee lasues that mient arise m future littsauen restrems NRC*a review of the June,1988. emergency platnetms eneresse 1

at the Shorenam fae:Asty.

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