ML20012F693
| ML20012F693 | |
| Person / Time | |
|---|---|
| Site: | 07000025 |
| Issue date: | 04/13/1990 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| References | |
| CON-#290-10245 ALAB-925, CLI-90-05, CLI-90-5, ML, NUDOCS 9004200153 | |
| Download: ML20012F693 (7) | |
Text
m k
(D3@
i i Aht C0 Lv UNITED STATES OF AMERICA UsNRC i
ilVCLEAR REGULATORY COMfilSSION i
10 APR 13 Pl2:23 COMMISS10NERS:
grlFJL.V SECRfiAAY Kenneth M. Carr, Chairman v0CKfhNG A Sli4VICf Thomas 11. Roberts URANCH Kenneth C. Rogers l
James R. Curtiss Forrest J. Remick 8EiRVED APR 1 3 1990 6
L In the Matter of ROCKWELL INTERNAT10!lAL CORPORATION Rocketdyne Division Docket No. 70 ML (Special Nuclear Peterial (License Renewal)-
License ilumber Silli-21)
MEMORANDUl4 Af1D CRDER CLI 05 The Commission has determined not to disturb the Atomic Safety and Licensing Appeal Board's Menorandum anc Order of December 21, 1989 in this case, ALAB-925, 30 i;RC _(1989).
However, to underscore our agreement with the Appeal Board's interpretations of three provisions of the Commission's new rules of procedure governing the conduct of informal adjudicatory hearings in materials licensing proceedings, we provide the following comments.
See 54 q
Fed. Reg. 8269 (1989) (codified as 10 C.F.R. Part 2, Subpert L, $5 2.1201 ej seq.).
1.
While the Subpart L rules do not permit discovery, see 10 C.F.R.
G 2.1231(d), the presiding officer is provided the authority to submit written questions to the parties which must be answered in writing unoer oath or affirmation ano supported by appropriate evidence.
10 C.F.R. 5 2.1233(a).
In 90042001D3 900413" PDR ADOCK 07000025
)$o F '
C PDR
m
?
this proceeding the' Appeal Coard became concerned that the timing of the Presiding Officer's exercise of this authority was not consistent with the procedural scheme.
As the Appeal Board explainec:
The opportunity afforded a presiding off'icer to present the parties, including the applicant, with written questions clearly was intenced as a means to clarify his or her understanding of any matter that a party has properly put into controversy through its written presentations, but which is still not amenable to resolution on the, existing record, it was not intended as a vehicle to aid an intervenor, prohibited by the rules from engaging in discovery, in preparing the written presentation in which it bears the responsibility for adding the factual meet to the bare bones of any i
previously unsubstantiated concerns.
]
ALAB-925at15-16(footnoteomittea),
lie agree. This means, at minimum, that the submission of questions to a party by the presiding officer is appropriate only after a ruling has issued on the initial request (s) for hearing and after the NRC Staff has made the hearing file available in accordance with 10 C.F.R.
I 2.1231 and after parties have filed their initial written presentations in accordance with 10 C.F.R. I 2.1233(b) or (c).
See ALAB-925 at 13.
If the presiding officer then determines that follow-up vritten questions are j
necessary to create an adequate record for decision, it is within the presiding j
officer's discretion to pose such questions.
See 10 C.F.R. I 2.1233(a), (a);
see also ALAB-925 at 10-11.
2.
The Subpart L rules encourage the fair and reasonable settlement of proceedings and provide the presiding officer with authority to hold conferences for this purpose.
See 10 C.F.R. El 2.1241, 2.1209(c). The Appeal The Subpart L rules provide a mechanism for bringing to the Commission's attention any " serious safety, environmental, or common def ense and security matter" which has not been properly placed in contest by a party.
1
{ s b
Board became concerned that the Presiding Officer in this proceeding intended to hold such conferences in private. The Appeal Board noted that traditionally all conferences or meetings in connection with the agency's formal 6djudications, held under the auspices and in the presence of an NRC licensing board or presiding officer, have been open to the public, unless matters of national or plant security or classified, privileged, or proprietary information is involved.
See,e.g.,10C.F.R.part2, App.A,6II(d).
ALAB-925 at 21. The Board expressed doubt that the Subpart L rules provided the presiding officer greater discretion to hold nonpublic meetings with the parties than is provided for formal adjudications under Subpart G.
& at 21-22. The Board directed the presiding Officer in this proceeding "not [to be)aparticipantinanyprivateandconfidentialnegotiationsbetweenthe parties, and, conversely, that any [ settlement] conferences in his presence are
[to be] open to the public, cbsent compelling circumstances." & at 22. We generally agree with the Appeal Board's directive.
Commission policy strongly favors settlement of adjudicatory proceedings.
At the same time, we are aware of the potential for compromise of a presiding officer's role as an impartibi adjudicator through involvement in the settlement process discussed in the Appeal Boara's 11emorandum and Order. Id.,
at 22 fn.13. Where an administrative judge's involvement in the settlement
~
process could be extensive (more than providing encouragement to parties or
{
holding a conference in open session), we believe that utilization of a l
settlement judge should be considered. Use of settlement judges has been I
endorsed by the Administrative Conference of the United States:
The settlement judge can command a degree of deference similar to that of the presiding judge without the need to observe all of the commands that establish and maintain impartiality. A separate settlement judge, once appointeo, can engage in ex parte and off-the-record convers6tions, frank assessments of the merits, and other techniques to a1d settlement that the presiding judge is less free to use.
3 i
_ ___o
y-1 C.F.R. i 305.88 5.
i We believe that resort to a settlement juege may te accomplished under our
(
present rules which encourage settlements (10 C.F.R. i 2.769, i 2.1N1), endow l
presicing officers with the authority to hold conferences before or during l
hearings f or settlement (10 C.F.R. $ 2.718(h), i 2.1209(c)) and allow presiding t
officers to take any other action consistent with the Atomic Energy Act, the Administrative Procedure Act and our rules of practice (10 C.F.R. I 2.718(m),
52.1209(1)).
Accordingly, it is our view that the presiding officer could, at the request of the parties, ask that the Chairman of the Atomic $4fety and I
Littrsing Board panel appoint a settirment judge if he considerto it advantagerus to co so.
L'e are mindful, of course, that any party's l
i participation in the settlement process is voluntary.
Therefore, utilization of the settlement judce cannot be mandatory ano cannot accrue to a party's l
detriment.
In aodition, in view of the fact that a settlement juoge might tngage in ej parte discussions and form o judgment on the merits of a party's pus 1 tion curing the course of negotiations, the settlement judge's communications and cealings with the presiding officer on the merits of issues l
and the parties' positions will have to be circumscribed.
With these caveats, j
however, we believe that the settlement judge concept could serve a useful purpose In our proceedings.
3.
The Subpart L rules contemplate that a request for hearing filed by a l
persen other than the applicant will describe in detail the factnrs enumerated at 10 C.F.R. I 2.1205(d). See 54 Fed. Reg. 8272.
The Commission specifico in i
10 C.F.R. I 2.1E05(g) the determinations the presiding officer must make in ruling on a request for hearing by a person other than the applicant: whether the specified areas of concern are germane to the subject matter of the proceeding; whether the hearing request is timely; and whether the reouestor 4
!4 l
meets the judicial standards for standing.
In this proceeding the Presiding
(
Officer did not comit his oral grant of the initial hearing requests to writing.
The Appeal Loard observed that the i 2.1205(g) determinations *are not rese11y amenable to oral ruling" and concluded that *for the sale of a compitte record, a written orcer on a ruling as important as the granting of i
requests for a bearing 15 e necessary and not unduly t'urdensome formality.'
I At.AB 925 at 24 25.
We agree.
Either the denial or the grant of a request for hearirg or a j
petition for Itave to ti.tervene is appealable within ten days of service of the orcer denying or granting the hearing request / petition.10 C.f.R. [2.1205(n).
A party appe611ng such an order must f11e a " statement that succinctly sets out, with supporting argument, tti errars 611eged."
& A party will hardly bt in a position to do this unless the presiding officer has issued a written decision explaining how the demands of 6 2.1205(g) have or have not been met, j
it is so ORDEPED.
l c
f the Comission
- ry E pf%gL, l
[
5AhML J. ditt 9%e Secretary of the Comission j
Dated at Rockville, lid j
l1 k Y
this i day of April, 1990, i
i Commissioner Roberts was not present for the affirmation of this Order, if he had been present he would have approved it.
i i
5 t
b UNlttD $14ttl CF AMERICA NUCLEAR RtlVLATORY COMM16510W i
in the Matter of I
I ROCKktLL INitRN4tlCNAL CORPORAt!CN i
Decket No.(si 70 25 ML i
(Recketsyne Divisten. Icettel i
Nutlear Materials License INM 21) i I
CERT!FICAtt CF ltRVICE
! heretv certify th4t sectes of the fersectne COMM MEMO 6 CRDER (CL1 90 Cll have been served u$ch the felleutnc tersons by V.$. 4411. first Class. esteet as otherwise notee anc in ettertante with the recuirements of 10 CFR let. 2.712.
Aceintstrative Judce Actinistrative Jucce Christine N. Kchl. Chatrean S. Paul
$climerk. !!!
Atcast tafety ans Licenstne Acceal Atcrit $44ety she Latensing Apceal Ecare
$ care U.S. Nutlear Feculaterv Ccesissten V.S. Nuclear Reculatory Ceseissicn Washincten. DC 205!5 Washington. DC 20555 Adsinistrative Jucce Actinistrative Juece Henarc A. Wilcer Peter 5. Bloch Atcent lafety and Licensing Arceal Presidinc Officer beare Atonit Safety one Licenstnc Scard U.S. Nuclear Reculatcry Ceesission U.$. Nuclear Reculatory Ccteissich Washingtcn. DC 20255 Washington. DC 20555 Adenntstrative Jugee Gustave A. Linenterger, Jr.
Settial Assistant Office cf the General Counsel Attent tafety ane Licensing icarc U.S. Nuclear Regulatory Cetnissicn V.E. Nuclear Regulaterv Ccattssten Washincten. DC 20555 Washingten. DC 20555 Philic D. Rutherferg Daniel Hirsch Manster President Nuclear lafety b Reliability Enc.
Costittet to Bridge the Sac 6633 Canoga Avenue. Matt Cece Hl07 1637 Butler Avenue. Suite 203 Caneca Park, CA 91304 Les Angeles. CA 90025 Jon
$cctt Estelle Lit 6 Rounduc Reac 18233 Eersues street tell Canven. CA 91307 Northrtege. CA 91326 J
Dettot No.tel?0:2t C L COMM CtM0 t ORttR (CLl*90 05) i i
lhelsen C. Pletkin. Ph.D, P. E.
Eretutive Scare Representative Jercae E. Restins. et. al.
leuthern California Fegeretten ci t/c il350 Les Atlets 8ttentists herthrtege. CA 91326 3318 Colbert Avenue Les Angeles CA 90066 Rtthard laten M.D parbara Johnach Prestgent Presteent Les Angeles Physittens for lettel lusana Kncils Hesecaners Assettation Responsibility c/o 6714 Clear terings Rese 1431 Ocean Avenue, tutte p lusana Kncils, CA 93063 lanta mentta.. CA 90401 Cetella Ricele lenter Litrarten Chatsacrth Ershth Library 210!! Devansntre Street Chatsacrth. CA 91311 Detec at Retkville. Md. thin 13 day of acrtl 1990 p \\.'.$$f......#..$..................
/
Offic's ci tne tetretary of the Cctellsten
-