ML20041A482
| ML20041A482 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 02/19/1982 |
| From: | Weiss E HARMON & WEISS, UNION OF CONCERNED SCIENTISTS |
| To: | Smith I Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8202220207 | |
| Download: ML20041A482 (6) | |
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U[F February 19, 1982-
'82 FEB 19 A10:26
[pM ',N, Ivan W.-Smith, Esq.
g Administrative Law Judge U.S. Nuclear Regulatory p#
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Re: MI-l Restart, fbcket No. 50-289 7pa
Dear 01 airman Snith:
h By memorandun dated February 11, 1982, you memorialized the content of a conference call among the Board and the interested parties concerning the UCS and Sholly fttions to reopen the evidentiary record with r_egard to the WI-2 IE Investigation Team report. As you noted, the parties agreed to a plan beginning with informal questioning by UCS and Mr. Sholly of the cognizant authors of the IE report, althotgh the NRC Staff later told you that it was " concerned" over its authority to expend the necessary funds.
(Memorandun of Feb.
9, 1982 Telephone Conference Regarding Intervenors' Motions to Reopen Evidentiary Record)
Since then, I have been informed by Mr. Cutchin that the NRC Staff refuses to make available for face-to-face informal questioning, any of the authors of the so-called " Martin Report" with the exception of Donald C. Kirkpatrick, who is assigned to headquarters in Washington.
According to Mr. Cutchin, to bcing NRC Staff members to Washington for informal questioning would constitute financial assistance to intervenors and is prohibited. We NRC Staff is willing only to make the authors of the report available by telephone.
I presume that the Staff's argument derives from the language of P.L. 97-98, 95 Stat.1135, containing the NRC appropriation for the fiscal year ending 1982. Wat language is as follows:
Sec. 502.
None of the funds in this Act shall be used to pay the expenses of, or otherwise compensate, parties intervening in regulatory or adjudicatory proceedings funded in this Act.
Mr. Cutchin asserts that calling NRC Staff members to Washington is prohibited by this section.
Wus far I have seen no analysis of the Staff's beyond this bald assertion.
In UCS's view, the Staff's position is specious.
Making St.aff members available to informally pursue evidentiary matters relating to central safety issues litigated in this proceeding hardly constitut as paying the expenses of or compensating UCS.
If anything, the costs associr :ed with these questioning sessions are the expenses of the NRC Staff as part of its litigation of the issues.
Analytically, it is no different than the time of a Staff member devoted to answering interrogatories.
While this time costs the NRC money, it does not constitute compensation to Intervenors but rather is an expense incidental to NRC's role as an adversary party.
T 8202220207 820219
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PDR ADOCK 05000289 Q
In addition, I wish to draw the Board's attention to t.he enclosed letter from the Acting Comptroller General of the Unitt.d States to the NRC dated May 11, 1981.
In this letter, the Comptroller General concludes that the provision of free transcripts to parties in NRC adjudicatory proceedings does not violate the above-quoted language of NRC's appropriation because, inter Tra, the purpose is "to expedite the handling of license applications" and that a
"any benefit accruing to Intervenors will be incidental and not the motivating factor in the Conmission adopting the proposal." (See enclosed letter, p. 3,4).
'Ibere can be little question but that making Staff members available for this questioning fits into the same category.
Certainly, had the Board ordered the Staff to do so, rather than sought agreement, not even an arguable question would remain.
At this point, the Staff's position has brought our ability to pursue these issues to a standstill.
A telephone conference call is obviously an unacceptable substitute.
'Ibere is first the general unwieldiness of trying to talk to a number of people (none of whom I have previously met) at once.
In addition, we do not wish to have one person listen to the answers of another and/or to prompt others. My experience also is that the highly technical nature of the issues involved may require frequent reference to documents which cannot be identified except in the course of follow-up questioning, and which are likely not to be available to each person on the call.
It is frequently very difficult even to accurately hear people on conference calls. Inngthy conference calls are uncomfortable and clearly unsatisfactory for these purposes.
Since the Staff will not agree to the plan memorialized in the Board's memorandum, I see no option but to ask the Board to issue an order.
I have been authorized by Mr. Sholly to state that he concurs with this letter.
Very truly yours, a
Ellyn R. Weiss
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Harmon & Weiss 1725 Eye St., IM Suite 506 Washington, D.C. 20006 Counsel for the Union of Concerned Scientists Enclosure cc w/ encl: 'IMI-l Service List (NRC copies hand-delivered to H Street)
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I I lllCl I ICI fIl y 'I!L LA h u " " m blfpaa e OW g @ j THE ccMpTROLLER GENERAL DECISION 1
. P. W.?:. ;OF THE U N ITE D STATES
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WADHtNGTCN, D.C.
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4/ NIT N May 11, 1981 DAT :
FILE:
B-200585 MATTER OF:
Free transcripts of adjudicatory proceedings-Nuclear Regulatory Comission
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N EST:
Nuclear Regulatory Carmission may use funds appropriated by Energy and Water Developent Appropriation Act,1981, to implement proposal to provide free hearing transcripts to all parties to Comission proceedings. Proposal is designed to increase efficiency of Comis-sion and expedite handling of license appli-cations. Appropriation Act prohibition on using appropriated funds to pay expenses of intervenors was not intended to prohibit expenditure, no matter how necessary or desir-able to Comission, simply because it inciden-a tally benefits intervenors.
he General Counsel of the n: clear Regulatory Coma.ission has asked for our decision on the legality of a proposed Comission plan tc provide free transcripts of hearings to all parties toIn Comissa.on adjudicatory proceedings, including intervenors.
his letter, the General Counsel refers to our letter dated to the former chairman, Subcomittee December 3,1980 (B-200585),
on Energy Research and Production, Comittee on Science and Tech-nology, House of Representatives, in which we concluded that the' Comission could not lawfully use its fiscal year 1981 appropria-tion to provide free transcripts and other services to intervenors in its proceedings. %e General Counsel asserts that the purpose
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of the new Carmission proposal is to make the hearing process as efficient and timely as possible and thus eliminate unnecessary delays in the Comission's issuance of licenses.
For the reasons indicated below, we conclude that the Nuclear Regulatory cannission may lawfully implement its proposal to provide free transcripts to all participants in its proceedings even though the proposal may incidentally benefit intervenors.
THE STATUTE Funds for the Ccmission's operations for this fiscal year were appropriated by the Energy and Water Developent Appropriation Act,1981, Pub. L. No.96-367, 94 Stat.1331. Section 502 of the Act provides:
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B-200?S j
"None of the funds in this Act shall be used to pay the expenses of, or otherwise compensate, parties intervening in regulatory
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or adjudicatory proceedings funded in this Act."
94 Stat 1345.
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j THE DECEMBER OPINION 2e subject of our December 3 letter was the Comission's announced This program was designed to ease procedural cost reduction program.the economic burden on intervenors in free transcripts and by copying and serving at no cost certain documents In our letter we concluded that, because the pro-gram was intended to provide assistance to intervenors, and because its filed by intervenors.
effect would be to " pay the expenses" of intervenors, the Comission could not use its fiscal year 1981 appropriation to implement the program with-out violating the statutory prohibition quoted above.
THE COK4ISSION PROPOSAL The Comissih now proposes to provide free transcripts of hearings The General Counsel indicates that the to any party that re.. pests them.
purpose of the proposal is to expedite Comission proceedings an suance of licenses by the Comission.
"***After examining the issue, the Comission is convinced that its interest and that of the public would be best served by providing transcripts to all participants in our licensing proceedings, and that such a program is needed to make the process function effectively.***",
With his letter, the General Counsel enclosed a memorandum frcm the Chairman of the Atomic Safety and Licensing Board Panel which conducts In the memoran-hearings on utilities' applications for nuclear licenses.
dum, the Chaiman indicates "that the quintessential purpose of furnishin transcripts and other documents to any party is to expedite licensing pro-In the Chairman's opinion, denying transcripts to any party can only result in delays both in the hearing itself and in the licensing ceedings."
board's preparation of its initial decision.
f parties is thus " essential to expediting licensing proceedings and i The Chairman concludes, j
complete Initial Decisions."
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I B-200585
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"In sum, the Licensing Panel feels strongly p1 that copies of transcripts and other evidence of record to intervenor and other parties have m
the following benefits:
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They expedite hearings thus saving much more money'than the-cost of the tran-I, "1
i scripts; j
"2. They aid in establishing a complete jr :
and accurate record by supporting cross-j; examination and identifying the need for, and extent of, rebuttal evidence; i
They aid in prompt initial decisions following the hearing because unless the "3
parties can cite the record, the board must search the record, a time constraing, andinefficien
'Ihc nee'd for transcripts is so intertwined with the statutorily mandated "4.
opportunity for proposed findings and con-clusions that the denial of transcriptscould result in a complex IEC proceeding on due processThe cost to the publi grounds.try if this should happen is obviously enormous.
"In short, what is at issue here is not a 5 to cost reduction program, but rather a progr n i
aid licensing boards in their mission of insur ng that their initial decision adequately protecti the public health, safety, and environment.
(Dnphasis in original.)
d the Chairman's memorandum, al to provide
. Based on the General Counsel's letter an it is our opinion that the purpose of the Co:cnission's propos the nuclear free transcripts to all parties is to expedite and improveAn because of the implementation of the proposal will be incva licensing procedure.
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B-200585,.
CONCLUSION We Comission's fiscal year 1981 appropriation act, cuoted above, bars the expenditure of funds appropriated by the act "to pay the ex-penses of, or otherwise compensate" intervenors in the Comission's proceedings.
In our opinion, the intent of this provision was to pre-clude the Co.C
'7n from implementing any program which was intended to and had the pr.acipal effect of paying the adjudicatory expenses of intervenors as a special class. We Comission's procedural cost rcduction program which we found unlawful in our Eecember opinion in fact benefited intervenors to the exclusion of others.
We Comission's new proposal is designed to increase the efficiency of its own operations and to expedite the handling of license applications.
It will provide free transcripts not only to intervenors but to all par-Tne Comission has decided that the imple-ties to Comission proceedings.
mentation of this proposal will facilitate its operations, and we find no basis upon which to object to the Comission's determination that funds We cannot maSe available to it are reasonably necessary for such purpose.
conclude that this proposal will violate the statutory prohibition simply Cf.
b$cause it, incidentally, eases the cost burden on intervenors.
B-92288, February' 19, 1976. Tnerefore, in our opinion, the Comission may lawfully use its fiscal year 1981 funds to implement the pro psal.
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_or the Acting Comptroller General of the United States 4
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