ML20028G767
| ML20028G767 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 07/24/1990 |
| From: | Kostmayer P HOUSE OF REP., INTERIOR & INSULAR AFFAIRS |
| To: | Carr K NRC COMMISSION (OCM) |
| Shared Package | |
| ML20028G765 | List: |
| References | |
| NUDOCS 9009040076 | |
| Download: ML20028G767 (18) | |
Text
w
~
.e DNE WumDagp fimST Comonts$ _
MORRIS K. UDALL ARIZONA CHAIRMAN;
- ':=': t*= ' -
- =,rfe. ' t......
n,*;,i,vatogi 1%*//=" :",'ltt'!"' - =Jm;"."tt'
COMMITTEE ON INTERIOR A~o cmm
'$hf,h"[".h'5,
$,N'55",...
AND INSULAR AFFAIRS "nj,f.'1g.1,A,,meto.
x
"?".*c'd"f=Jl"*c7fA'cTu, 07.'difE'A%'7c,l'.
U.S. HOUSE OF REPRESENTATIVES g
H t'c"J."o * *'I'.'A'c2",21'
AS74',"f0"ot'ao.
WASHINGTON. DC 20515 orwtmatcouwstt-EN#oO%v7 dei A%.
- U.??J2!! L*to,=o RICHARD AGNtW l1'2" if.*t,*!!'Jr."'.7.
J. t6 tunaC 6 NORT'4 C.RQth.
~"','"l'"
4 L'472"J.",0'$ *o'.%'
- '?"'**
1
'Si n'J.'JM'w
' YlM JOHN 80N. SOUTM D.%"l*a'?J'" ' '
July 24, 1990 R O1 The Honorable Kenneth Carr Chairman United States Nuclear Regulatory. Commission e
Washington,.D.C. 20555
Dear Mr. Chairman:
Enclosed please find a. memorandum prepared by the General Counsel
.of the 'U. S. House of. Representatives regarding the refusal of Nuclear Regulatory Commissioners Carr,-Rogers, Curtiss and Remick to answer questions. posed by Representative Markey during the March 14, 1990 hearing before the House Interior Committee Subcommittee on General Oversight and Investigations.
According to the House General Counsel, " Review of'the pertinent legal authorities.
. reveals that-the legal analysis in (the NRC i
General Counsel.'s March 16) justification memo is seriously flawed in several-regards and that there is no legal-justification for the y
Commissioner's refusals to answer
- Representative Markey's l
l question.-"
As Chairman of the Subcommittee, I wholeheartedly endorse the finding of. the House General Council.
Moreover,. I.believe the i
Counsel's = finding-extends' to related questions on evacuation j
planning.
Accordingly, I hereby direct the' Commission to answer j
the question posed by Mr. Markey at the hearing and, in addition, the questions enclosed herein.
Given the cons 1derable amount of time which has lapsed since the hearing,. I would ask that you provide the Subcommittee with the-Commission's answers no later than. Friday, August 10, 1990.
With all good wishes, q
Sincerely, l
J J
l MC l
w s
l Peter H.
Kostmayer Chairman L
Subcommittee on General Oversight and Investigations l
-l l
9009040076 900817 PDR ADOCK 05000443 p
PNV u
m-L.'
l E
Questions from Rep. Edward J. Markey 1).
Under current criteria can the NRC license a plant for which the minimum estimated evacuation time is eight hours? 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />? 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />? 2_ weeks? Please explain.
2)
Does ' the NRC use criteria for determining " reasonable and feasible dose reduction under the circumstances?"
Please detail these criteria if they exist.
3)
Could the NRC license a plant for which the emergency plan 1
offered no dose savings during a conceivable postulated accident?
Please explain.
-5 4)
Could the NRC license a plant under whir' members of the public could receive, during a conceivable postulated accident, a radiation dose of 1 REM?
25 REM? 100 REM? 500 REM? Please explain.
5)
Should emergency plans seek to avoid life threatening-radiation doses?
Please explain?
a.
Is this a requiretaent of current emtrgency plans? Please detail any requirements if they exist, b.
If the answer is yes, what criteria does the NRC use to.
determine-the effectivencss of emergency plans in this regard?
6)
Should emergency plans seek to avoid significant risk of fatal cancers?. Please explain.
a.
Is this a requirement of current emergency plans? Please detail any requirements if they exist.
b.
If the answer is yes, what criteria does the NRC use to determine the effectiveness of emergency plans in this regard?-
7)
Should emergency plans seek-to avoid significant risk of non-fatal cancers?
Please explain.
a.
Is this a requirement of current emergency plans? Please detail any requirements if they exist.
b.
If the answer is yes, what criteria does the NRC use to determine the effectiveness of emergency plans in this regard?
8)
Is it " reasonable and feasible", pursuant to the Atomic Energy Act, to shelter the populations near Nuclear Power Plants, such as the beach population at Seabrook, to achieve significant dose a.-.4.n37
.m a.
Do such issues require resolution before full-power of nuclear power plants?
Why or why not?
Please explain.
p 1
[V
)
, l 9)
The National Academy of S.iences Beir-V Report, issued in l
r December 1989, indicates that the risks of low levels of radiation i
i e>.posure are from three to fourtec'. times higher than the academy believed as recently as 1980 -- wnen current emergency planning guidelines (such as NUREG-0654) were promulgated.
Does the Commission believe that its emergency planning requirements should be re-evaluated in light of Beir-V7 Why or Why not?
Please explain.
10)
The NRC/rEMA guidance for emergency plans requires that there i
be available a public alert and notification system which is capable of notifying the public within ten miles of a plant within i
fifteen minutes after of f-site authorities are notified.
Given this requirement for prompt notif. cation, on what basis does the Commission conclude that the times to evacuate are irrelevant in
~~
accessing the adequacy of emergency plans?
11)
Has the Commission issued a full power operating license to an applicant who did not have an NRC-approved emergency plan at the time the license was issued? In the Seabrook issue, did the c
Appeal Board conclude that the New Hampshire plan could not be 1
approved without a sheltering plan component?
Please explain, a.
Has the Commission reversed that conclusion of the Appeal Board?
1 12)
Please list all the instances in which an operating license has been issued to an applicant who did not have an NRC-approved emergency plan, 13)
Has the N**
determined that the lhek of a sheltering plan for the beach pop... ion at Seabrook is not " safety significant," and therefore allowed the plant to prt..eed while the sheltering plan was being developed?
If so whe; was the rationale for this finding? Why isn't the lack of a sheltering r e reason for r
withholding the license?
14)
Can a properly sited plant be denied an operating license because the emergency plans are inadequate with regard to site specific factors such as population size and proximity? evacuation times? effective sheltering?
Please explain for each.
15)
Is there outstanding a viable decision from the Appeals Board that concludes that the "B" planning standards for Seabrook have not bean met?
Please explain.
16)
Does the Licensing Board finding that the remanded issues on the New Hampshire Emergency Plan were not significant cite 10 C.F.R.
- 50. 4 7 (C) (1) ?
Why or why not' 17)
Were the parties to the proceeding given an opportunity to be
%.s y 4 r e,, o c. %. we.
-....u, asse e..
<-..a w.,
. w,
ap F t:OA JCarU Wt:re $19ni!10&nt (
E4das& 6xplaln.
. l 18)
What is the basis of the Commission's determination that the i
deficiencies are not significant for Seabrook?
19)
In 1981 the NRC promised in a brief the D.C. Court of Appeals that no operating license would be issued for Seabrook if emergency planning was " infeasible"..
What standards have been used to determine that the Seabrook Emergency Plan is feasible?
l 20)
Please list all the instances that the Commission has decided l
that compliance with the 16 "B"
standards was sufficient to establish adequacy.
21) 10 C.F.R. 50.47 (A) (1) requires that "no operating license for a n_uclear power reactor will be issued unless a finding is made by the - NRC that there is reasonable assurance that adequate j
protective measures can and will be taken" and this section does not indicate that compliance with the "B" standards _ establishes
" adequacy". On what basis, therefore, did the Commission determine that mere compliance with the planning standards establish
_ adequacy?
22)
Can compliance with the planning standards, themselves, be achieved independent of the particular risks at specific sites?
If so why does the Commission permit litigation of emergency planning contentiens in its licensing proceedings?
i l
f 6
i l
0 I
r.............
.e., n on.
.c l
1
@!fice of ti)e Citrk 41.6. house of RepresentAtibes Mastington. BC M15-M01 May 17, 1990 MEMORANDUM TO:
The Honorable Peter H.
Kostmayer, Chairman Subcommittee on General Oversight and Investigations of the House Committee on Interior and Insular Affairs-m FROM:
Steven R. Ross
)
General Counsel to the Clerk Robert M. Long l
Assistant Counsel to the Clerk s
RE:
Refusal of Nuclear Regulatory Commissioner to Answer A Question During Hearings Before The Subcommittee on General Oversight and Investigations of.the House Committee on Interior and Insular Affairs (March 14, 1990).
"cu have asked for a legal evaluation of the refusal of Nucleat Regulatory Commissioners Carr, Rogers, Curtiss and Remick to answer a question posed by Representative Markey during recent hearings before the House Interior Sube:mmittee on General Oversight and Investigations regarding nuclear power safety issues.
Representative Markey's question was:
"If there is no minimum evacuation time for a nuclear pcwer 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 />?"
To justify the Ccmmissioners' refusals to answer this question the General Counsel of the Nuclear Regulatory Commission prepared a post hoc memorandum dated March 16, 1990 ("the justification
- ..emo"). This justification memo purports to be a lecal analysis l
L
v
)
I May 17, 1990 Page 2 explaining why the refusals to answer the question were " legally ju s t :. f i e d. " 2.:L. a t 1.
Review Of the pertinent legal authorities, however, reveals that the legal analysis in this justification memo is seriously flawed in several regards and that there is no legal justification for the Cemissioners' refusals to answer Representative Markey's question.
First the memo attempts to extract a privilege against
-Y Congressional questi ning frem se' < ral court cases regarding due process requirements f:r admin:.strative adjudications.
See e.o.,
Pil'_rburv v.
FTC, 354 F.
Ed 952 (5th Cir. 1956); A.9erican Public Gar Ass' n v.
rPC, 567 F.
2d 1016 ( D.C. Cir. 1977), cert. denied, l
435 U.S.
907 (1976).
None of these cases even suggest, little alene recognize, such a
privilege against Congressional questioning. :nstead later cases in applying Pillsbury explicitly recogni:e the importance of Congressicnal oversight and are careful e
not to impinge en this Ccnstitutional power of the Congress. Sierra club v.
cestle, (17 T.
?d 298, 4 09 (D.C. Cir.1981); Gulf oil core
[
v.
FPc, 563 T.
2d 568, 610 (3rd Cir. 1977).
Furthermere supplying an answer to Representative Markey's questien in this instance would not trigger the administrative due process problems addressed in those cases.
They explicitly indicate that administrative due process problems only arise from extensive Ccngressional
- prodding, and criticism, of the administrative decisionmakers regarding a specific adjudication pending before an agency -- Congressional pressure aimed 'at forcing the administrative decisionmakers to make " prejudgment (s).
. of i
L P.ay 17, 1990 Page 3 factual questions then pending."
culf Oil at 611.
Representative P.arkey's single question regarding the ability of the Commission te license a
nuclear power facility with a slow evacuation capability simply does not implicate the due process concerns by the courts in these cases. The refusals to answer Representative Markey's question have no legal support.
A.
THE NRC COMMISSIONERS DO NOT HAVE A PRIVILEGE AGAINST CONGRESSIONAL QUESTIONING
.2 2
e Citing the 5th Circuit Court of Appeal's epinion in Pillsbury, surrn, the justificaticn memo attempts to construct a privilege agains; questiening by Congressional Cemmittees.
That
- case, h:vever, does..ct reccgni:e any such privilege.
In Fillsbury the appeals court held that because there had been extensive Cengressional prodding and criticism of certain rederal Trade Commissicners regarding a specific adjudication, for which they were the administrative decisionmakers, they were
" required.
. to disqualify themselves" Pillsburv at 963, from that matter in order to preserve a " fair tribunal."
1 at 965.
Since the Commissioners that had been pressured had not disqualified themselves, the Court remanded the ad3udication back to the FTC in order for it to determine the appropriate steps to take to ensure a fair tribunal.
idm The Pillsburv court did not hold that the Commissioners could refuse to answer the Congressional inquiries posed to them.
Furthermore in all the later decisions by the courts applying the P!11sbury case there has never been any suggestien that such
-s.
s....,
... a
.s.
{
M
'I s
May 17, 1990 Page 4 pcwer of Congress, as a separate and co-equal branch of the gevernment, to eversee executive agencies and operations, including the power to c:mpel testimony.
The Supreme Court has recognized Congressional eversight as an essential constitutional attribute of the legislative function.
Congress's investigatory p:wers are "as penetrating and far-reaching as the potential power to enact and appropriate under the
.=
Constitution."
Sarenb'att v.
United Stater, 360 U.S 109, 111
.. =.
(1959).
The p0wer Of the Congress to conduct investigaticns is inherent in the 1erirlative It c mprehends probes ints, the pr cess.
l-departments of the Federal Government to expese corruption, inefficiency or waste.
Watkins v.
United Stater, 354 U.S.
178, 187 (1957).
See aise, McGrain v. Dauche rtv, 273 U.S.135,175 (1926):
Eastland v. United States serviceren's Fund, 421 U.S. 491 (1975).
Congress's Oversight powers stem directly from the English Parliament's his:Oric investigatory functions --
"We (the House i
of Commons) are called the Grand Inquest of tne Nation, and as such I
it is our duty to inquire into every Step of public management, either Abroad or at Home, in order to see that nothing has been l
done amiss," Chandler Common Debates vol. ?(III p.172, (remarks of and in America have been said to be more l
William Pitt, 1742) important than legislating.
Woodrow Wilson Concre s s t.on al Government 303 (1901)
("The informing function (oversight p)wer) of Congress should be preferred even to its legislative function").
i i
1 May 17, 1990 1
Page 5 Thus in applying E.L11sburv the courts have been careful not to impinge en this Congressienal authority.
For example, in E rederatien of civic As sn's v. Velee, 4 5 9 F. 2 d 12 31, 124 9 (D.C. Cir 1972) although the ecurt
- held, as in Pillsburv, that an administrative decision (regarding the construction of a bridge) be remanded to the agency for an impartial redetermination because of intense Cengressi nal pressures the Court emphasized that it was not :hallenging the 2:ngressicnal actions.
j j
To avcid any miseenceptier.s about the nature of cur holding, we emphasi:e that we have not f:und -- nor, for that matter, have we sought
- any suggestion of impropriety or illegality in the actions of F.epresentative Natcher and others who strongly advocate the bridge.
we incicate no pinien en their authority to exert pressure en Secretary Volpe.
1.sb. at 1249.
Simil.n ly other courts have also recognized Congress' oversight authority in this context.
See e.o.,
Peter Kievit sens' co. v. U.S. Ar-v Ceres o f Enc., 714 F. 2d 163,170 (D.C. Cir.1983)
("C ngressional oversight serves a vital control on the quality. and propriety of low visibility executive decisienmaking ")i Sierra Club 6$7 F.2d at 400 n. 502 (D.C. Cir 1951)
("Under eur. system of government, the very legitimacy of general policymaking performed by unelected administrat:rs depends.
. upon the cpenners.
. to the public" and "I(d)emocratic ideology requires control of administrative acti:n by elected representatives of the people.'")
(quoting Scher, cenditions for tecislative centrol, 25 J. Politics 526 (1963)); Gulf 011 563 F.2d at 610 ("We also are sensitive to the lecislative imoertance of Cencressional committees on oversicht
4 J
May 17, 1990 Page 6 i
i and investigation and recogni:e tnat their interest in objective j
and ef ficient eperation of regula';ory agencies serves a legitimate and wholesome function with which we should not lightly interfere."); bited st ater v. Armada Pet releum Cere., 526 F. Supp.
4 43, 50 (S.D. Tex. 1952)
(" Courts have recognized the importance of Congressional committees en eversight and investigation, and they are sensitive to Congress's interest in the objective and efficient cperation of regulatory agencies.");
United Stater v.
Phoenix
.=
Pet releum cc., 571 F. Supp. 16, 20 (S. D. Tex. 1982).
I 1
Consequently in the few instances when the courts have
)
ccncluded that an agency's decisi nmaking has not afforded the parties due precess because of C;ngressicnal pressures the remedy has always been to remand the decision back to the agency for a fresh, and impartial, redetermination. P_111sburv, UmI.A. ; Vo l e *,
suors.; Texas Medical Asseciat en v.
Mathews, 408 T.
Supp. 303 (W.D. Tex. 1976).
In fact in this context, twiv.s district courts have been reversed by the appeals courts when they have attempted to decide the underlying issues or impose remedies other than remand to the agency.
Meriac.
- nc., villace of Uvak v. Andrus,. 580 F.2d 601, 604 (D.C.
Cir.
1978)
(district court reversed for 1
Most of tM time the courts have concluded that the Congressional actions regarding matters before the agencies have
- .ct created due process problems.
le.e_g. a, Peter Kiewit sens' I
sutra; M mra Club suora; Keniac, Inc E lace of Uvak v. Andrus, 580 F.2d 601 (D.C. Cir 1978); American Public Gas supra; Gulf 011 suora; United States ex rel. Parco v.
Mer ris, 426 T.
Supp. 976 (E.D. Penn. 1977); Phoenix Petroleum Co. suora; Arrada Petroleum Cere. sucrn; Texas Oil & Gas Coro, v.
Andrus, 498 F.
Supp. 677 (D.D.C.
1980); Environmental refense rund. Inc.
v.
Plum, 458 F.
l Supp. 650 (D.O.C.
1979).
l l
o 4-i t
i May 17, 1990 Page 7 ordering preliminary agency determin 7.; ions reinstated)
("we hold that the preper remedy is a remand to the Secretary to redetermine these cases."); Peter Ylewit Fens' co. v. U.
S. Arrv cero of Ene.,
7*4 T.2d 163 (D.C.
Cir. 1983)
(district court determination on contracter debarment reversed and district court instructed to remand to the agency).
The attempt in the lustification memo to derive a testimonial j
privilege against 0:ngressicnal questiening from Pillsbm and related cases fails.
Th:se cases stand merely for the preposition that an a dmini s t r a t :.ve proceeding that has been the subject of intense Congressiena; pressure may have to be reconducted in order to meet administrative due process requirements.
They do not
- mention, let alone, create a privilege against testifying at ccngressional hearings.
B.
REPRESENTATIVE MARKEY'S QUESTION WOULD NOT RAISE THE DUE PROCESS CONCERNS ADDRESSED IN PILLSBURY AND ITS PROGENY Aside from the fact that the Pillsburv cases, and those that f ell e'.
it, do not recogni:e any privilege against Congressional qur.stioning of administration officials as claimed in the justification memo, tne single question pesed by Represent:t! ve Markey does not even constitute Congressional pressure that would give rise te administrative due precess pr:blems at the agency under those cases.
P111sburv and the later cases make it clear that only intense Congressional pressure ained at pushing the agency cecisionmakers into predeterminations of matters pending before the agency give rise to the due process problems that may I
require a
sec nd agency preceeding and redetermination.
O c
May 17, 1990 Page 8 Representative Markey's single question regarding the authority of the NRC to license a
nuclear pcwer plant under certain 2
circumstances,
dees not gave rise to the administrative due 5
pro:ess concerns addressed in the Pillsbury line of court cases.
In Pillsburv the court noted that the specific case pending before the agency "was referred to more than 100 times during the several [ congressional) hearings", P111sburv 354 F.2d at 962, and 2_
the court repr:duced Over five pages of the congressional transcripts in its epinion finding that the FTC decisionmaker had been:
sub ect[ed).
. to a searchine examir:atien as
- how and why he reached his decision in a case still pending before him, and critici e di r
for reaching the
' wrong' decision (by) the Senate subcommittee.
L 1 at 964 (emphasis added).
The Pillsbu s court concluded that the congressional investigation
" focus [ed) directly and substantially upon the mental decisional processes (of an agency) in a case which is pending before it". 1 The circumstances which lead the court in Pillsburv to believe that there might be aciministrative due process problems have been 2
Representative Markey's question was whether the NRC "could" licence a nuclear power plant with a slow evacuation capacility.
This question was not directed at any particular facility, or prcceeding pending befire the agency, but rather was a generalized inquiry regarding the NRC's legal criteria and cperations.
This inquiry is mischaracterized in the analysis portion of the justification memo as one aimed at the mental decisionmaking process of the Commissioners.
"The question asked by Congressman M.arkey was whether the Commission would license a plant [with a slow evacuation capability)." Justification Memo at 4 (emphasis addec).
s May'17, 1990 Page 9 described by later c:urts variously as
" intense congressional pressure" News A erica Pub.,
Inc.
v.
F.C.C.,
844 F.2d 800, 816 (D.C.
Cir.
1988),
as
" legislative intrusions.
into the l agency's) decisional process", culf oil Cere 563 F.2d at 611 as
" legislative interference with an administrative agency's decision-making process" Arrada Petreleur cere. 562 F.
Supp, at 50 and as
' extensive and severe criticism by (Congressieral metabe rs ) "
15 A erican Public 2A1 567 F.2d at 1065.
In deciding ;f Congressi:nal acti0ns rega: ding administrative decisicns create the administrative cue process problems recognized o
in Pill sbury, later c:urts have consistently indicated that the c:ngressional involvement must rise to a intense level of actual pressure aimed at a specific result in a specific matter under consideration by an agency.
Thus in Peter Miewit Sons' suora the court indicated that:
the preper focus is not on the content of congressienal communications in the abstract, but rather apon the relation between the communicatien and the adjudicator's decisionmaking process.
A court must consider the decisionmaker's input, not the legislator's output.
The test is whether
" extraneous factors intruded into the calculus of consideration" of the individual decisionmaker.
Pressure must be evaluated in the context of a concrete decisional process.
.LL, at 170 (quoting D.C.
Federation of Civil Ass' ns v. Volee, 459 T.2d at 1246).
Furthermore that pressure must be aimed at the administrative decision aker in the particular matter.
Koniac Inc.,
C90 F.2d at 610 ("we think the Pillsburv decision is not
i i
a May 17, 1990 Page 10 cent. rolling here because none of the persons called before the 1
subecmmittee was a decisionmaker in the case.").
The courts have only rarely concluded that congressional
.nvolvement has reached the degree of interference or pressure to cause a due process problem at the agency, Pillsburv, Augza.,
Velte, suora., Texas Medical Asseeiatien suera and more often have 1
concluded that the congressi:nal involvement has not caused a due j
process cencern.
See e.e.,
Pet e r $'iewit sens', suora; Sierra Club.,
9uera; Peniac, Mr.,
m ; J.rerican Public Gas, ruera; Gulf oil, ruera; "nited 1tates ex rei. Parce v.
vurir, 426 F.
Supp. 976 (E.D. Penn. *977); Pheenix Pet releum Co., supra; M ada Petroleum Ci re., ruera; Texas Oil t,
T-a s Cere.
v.
Andrus, 498 F.
Supp. 677 (D.D.C.
1980); Envirennental Defense Func, Inc.
v.
Blum, 458 F.
Supp. 650 (D.D.C.
1978).
Not surprising the justification memo d:es not attempt to analyze any of the latter cases.
In A erican Public Gas,
- sucra, although a congressional subcommittee " attack (ed)", 1 at 1066, an agency's rationale for a decision then pending for review on rehearing (as in Pillsbury.
the' court reproduced many pages of the cengressional transcript "illustrat[ing) the hostility of [the subcommittee) Chairman and counsel", 1 at 1070), the court nonetheless in reviewing the "whole setting" 1 at 1069, and the " character and scope of the interference alleged" & 1070, determined that the " possibility cf influence upon the Commission is too intangible and hypothetical a basis for this court.
. to nullify (the agency decision)". &
Thus in this case the court concluded that the degree of
i L.'
o
)
o May 17, 1990 Page 11 congressional pressure was not substantial enough to raise due process problems.
On the other hand, in Gulf oil
- core, ruern.,
the court concluded that alth: ugh "the subce::mittee's interest in this case
[was) substantial.
(i)t was avewedly directed not at the FPC's decision on the merits.
, and therefere c:uld only be construed as " incidental intrusions" that the " Commission was fully capable
'.1 of withstanding".
1 at 611.
The c:urt further indicated that Pillsburv was c:ncerned with
" factual prejudice" and not leg:.slative interference regarding legal issues.
1 L. at 611.
Censequently the c:urt detert:nec that the congressional ir"civement in the issue had n t prov:ked due process problems.
Under either
- tack, both the degree and nature of the congressional involvement, Representative Markey's question regarding the authority of the NRC to issue a license for a nuclear pcwer plant with a slew evacuation capability cannot be construed as the type of ccngressional involvement that has lead to a ci.~.i n i s t r a t ive due process problems under the Pillsburv line of Representative Markey's single question does not even begin cases.
to present the degree and type of congressional activity addressed in Pillsburv and the later cases.
E nvi r e nrp.n;.g l Defense Fund,
("the degree of congressional interference in this case pales sucra in comparison to that wh.ch occurred in the cases cited by plaintiff (i.e., Pillsbur.y, D.C.
Federation, etc.]").
Moreover, it was not aimed at the merits of a pending matter but rather was a generalized inquiry regarding the authority and L
L i
o May 17, 1990 Page 12 i
operations cf the NRC.
The entire issue of nuclear power, is of course, of great concern to the members of Congress and the public they represent.
Congressional oversight in this realm is particularly critical.
Congressman Markey's question is precisely the type of inquiry which Congressmen must make in performing their oversight responsibilities.
C.
THE REFUSALS TO ANSWER BY THE COMMISSIONERS THAT WERE NOT DECISIO! MAKERS IN THE PERTINENT MATTER ARE PARTICULARLY e
GROUNDLESS
.a As discussec there was no legal justification for any of the NRC cf ficials to refuse to answer Fepresentative Markey's question.
s The Pillibury line cf cases d:es not recognize a privilege against i
t congressional inquiry; furthermore Representative Markey's question is not congressional pressure which would give rise to the administrative problems identified in those cases.
The refusals by the two Commissioners that are not participating in the 3
pertinent adjudicatory proceeding to answer the question posed are particularly groundless.
As noted Fillsburv and its progeny stand for the proposition that congressional pressure on agency decisionmakers on a
particular matter pending before that agency may require the agency to make a
second agency determination to allay due process 3
Commissioner Curtiss promised in 1968 to abstain from participating in Commission decisiens on contested emergency planning issues in the Seabrook operating license proceeding -- the issue identified as the ongoing adjudication which justifies the Commissioners refusals to answer.
Justification Memo at 1 &
6.
Ccmmissioner Remick disqualified himself last year from voting on centested issues on the Seabrook matter.
& Neither, however, would answer Representative Markey's question at the March hearings.
c o 9
L h
l May 17, 1990 Page 13 concerns.
When the courts find that the agency decision has been improperly influenced by congressional consunicatiens they remand the decisien back to the agency for a fresh evaluation.
In Pillsbun the c:urt indicated the preper means for the agency to avoid due process problems "some of the members
[of the Ccrsission) in addition to the chairman (should havel disqualify [ed) themselves. " Pillsbury, 354 F.2d at 963.
According
.. =
to Pillsburv, the disqualificatien of the decisionmaker from the m
J matter over whien he receivec congress cnal pressure is sufficient j
te cure any cue pr::ess problems.4 Further the subsequent cases stress that it is the congressi:nal pressure en the decisionmaker that will be deciding the pertinent matter that can give rise to due process problems, not pressure en non-decisionmakers. Veniac.
Inc.,
580 F.2d at 610 (Pillsbury not ::ntrolling "because none of the persons called
'A The justification memo refers t: two cases in arguing that disqualificati:n would not be sufficient, cinderella career and Finishine Scheels v.
FTC, 425 F.2d 553 (D.C. Cir. 1970); Antonin v.
FEC, 877 F.2d 721 (6th Cir. 1969).
Neither is en point.
In Cinderell*,
- surra, the c:urt determined that the Administrative pr: cess in reaching a decision was not in accord with due process principles because one of the carticientine C:: issioners (who had DE;. disqualified himself) had prejudged the matter as apparent in a prior public speech.
Similarly in Antonin, sm't, the court reached the same conclusion because it determined that a decisionmaker had prejudged the matter, as apparent in a prior public speech, and NLd participated in the administrative proceeding.
The decisionmaker had " recused himself" only prior to the " final decision."
Lt. at 726.
Consequently the court could not know() how [his) participation affected the Corais sioner's deliberations."
lj;L.
In this
- instance, both Commissioners at the NRC had disqualified themselves long before the Subecraittee hearings and they are not participating in the matter that the justification me ; cites as :reating the due process problem.
Furthermore, neither is being called upon to prejudge any issues.
..m e, n
s 6
s May 17, 1990 Page 14 i
i before the sube =ittee was a decisionmaker in these cases"); Eal.tz.
I i
Piewit Eens' 714 T.2d at 170 (D.C.
Cir.
1983)
(" responsible of ficial's
' calculus of consideration' or
' mental decisional
)
pr: esses' (must be) clearly tainted by cengressional pressure").
Thus it is apparent that the refusals to answer Representative j
Markey's questi:n by the Commissioners that had previously j
disqualified themselves. fr m the pertinent pending matter do not
...a square with the very cases cited to justify the refusals of the i
active C:=1ssioners.
- nceed Fil'rburv itself indicates that the i
disqualificati:n of a decisi:nmaker with regard to the matter allegedly being pressured by members Of Congress is the very solutien for any due pr: cess pr:blems.
The Cc=issi ners that were already disqualified simply have no basis for invoking P111mburv as a reason for their refusals to testify.
I i
4
?
_