ML20042A852
| ML20042A852 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 03/22/1982 |
| From: | Gutierrez J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8203240206 | |
| Download: ML20042A852 (10) | |
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O-03/22/82 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of HOUSTON LIGHTING AND POWER COMPANY )
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50-499 m
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a (South Texas Project, Units 1 & 2) )
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HEC w 3 MAR 231995 p U n reru nmn g,_i'f NRC STAFF RESPONSE IN OPPOSITION
- 2%fu t TO ALLEGED EX PARTE COMMUNICATIONS
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I.
INTRODUCTION On March 1, 1982, Citizens for Equitable Utilities'(CEU) filed a motion requesting, inter alia, full disclosure by persons subject to the jurisdiction of this Board relative to alleged g parte communications withCommissionersRobertsandGilinsky.1/ The Staff opposes this Motion on three separate grounds.
First, under the facts set forth by CEV this Board does not have jurisdiction to consider whether. communications received or conveyed by a Commissioner constitute ex parte commue.ications and there-fore the requested relief would serve no purpose. Second, assuming this Board has jurisdictica to consider such a matter, CEV has made no showing that the Commissioners or any of the parties to this proceeding engaged in
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See, " Citizens for Equitable Utilities Motion To Require Full Fisclosure And Independently Prepare Affidavits With Respect To The Ex Parte Communication With Comissioner Roberts Of February 21, 1982, And With Commissioner Gilinsky Of December 1981" (Motion).
See pp. 5-6 of the Motion for a full explanation of the relief requested.
DESIGNATED ORIGINAIi Certified By
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IJo 9 s203240206 s20322 PDR ADOCK 0500049s g
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. 2 ex parte communication as defined by 10 C.F.R. 9 2.780,/ during either site visit.
Lastly, further assuming the parties did engage the Commissioners in ex' parte communication during either site visit, 10 C.F.R. 9 2.780(c) provides the remedy to cure such a violation and the Board may not require anything further.
II. DISCUSSION A.
This Board Does Not Have Jurisdiction To Grant The Relief Requested In CEU's Motion A licensing board has only the jurisdiction and power delegated to it by the Commission.
Carolina Power and Light Company (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 and 4), ALAB-577, 11 NRC 18, 25 modified in part, CLI-80-11, 11 NRC 514, 517 (1980); Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-316, 3 NRC 167, 170 (197C); New England Power Company, et al. (NEP, Units 1 and 2), LBP-78-9, 7 NRC 271, 279 (1978).3/
This grant of authority is to be narrowly construed and only gives the Board authority to rule on a particular application or a specific matter referred to it.
See, Shearon Harris, supra,11 NRC at 517; Houston Lighting & Power Company (South Texas Project, Units 1 and 2), ALAB-381, 5 NRC 582, 589 (1977); Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-513, 8 NRC 694 (1978); Union Electric Company (Callaway Plant, Units 1 and 2), LBP-78-31, 8 NRC 366, 370-71 (1978); see, 10 C.F.R. @ 2.717(a).
In this case, this Board has been 2_/
See also, 5 U.S.C. $$ 557(d) and 551(14).
'-3/
A licensing board may rule with respect to the scope of its jurisdiction when that authority is challenged.
Kansas Gas and Electric Company (Wolf Creek Nuclear Generating Station, Unit 1),
ALAB-321, 3 NRC 293, 298 (1976).
e empaneled and delegated the responsibility to decide issues with respect to the issuance of a facility operating license.4/ Accordingly, this Board does not have jurisdir: tion to decide any motion with respect to the alleged ex parte contacts between a Commissioner and party to this proceeding.
CEU's Motion does not seek a ruling on a matter for which this Board has been empaneled.
CEU would have this Board engage in a fact finding exercise relative to the activities of two Commissioners, presumably for the purpose of determining whether they had either conveyed or received e_x parte information.
CEU states in its Motion:
In any event, it is essential to a full explanation of the events that led up to the visit and of the conversations and commv,1 cations that took place during the visit both to clear the air concerning Commissioner Roberts' views and to provide a basis for judging whether additional remedies will be necessa ry. We are concerned that these develop-ments may be sufficient to require Commissioner Roberts' recusal from any consideration of the South Texas Project.
Motion, pp. 4 and 5.
Further, nothing in the wording of 10 C.F.R. 6 2.780 grants this Board authority to police alleged ex parte com-l munications to the Commission.
Indeed, it is only the Commissioner whose disqualification is sought who may judge if his past conduct forecloses him from parti-l l
cipating in an adjudication. As stated in Pacific Gas and Electric Co.
i (Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-80-6,11 NRC 411 (1980):
" Consistent with the Commission's past practice, and the generally accepted practice of federal courts and administrative agencies, l
the Commission has determined that disqualification decisions should l
4/
See, 43 Fed. Reg. 33969.
,a reside exclusively with the challenged Commissioner and are not reviewable by the Commission." 11 NRC at 411-12.
Should any issue concerning ex parte communications be raised upon Commission consideration of this proceeding, that matter could then be decided by the involved Commissioner.E Put simply, under the facts here presented it is both inappropriate and beyond the jurisdiction of this Board to consider the actions of the Commissioners, and it thus may not embark on any fact finding exercise in that regard.
B.
CEU Has Made No Showing That Anyone Engaged In Ex Parte Communication Assuming arguendo, this Board does have jurisdiction over the question of whether either Commissioner engaged in e_x_ parte communications, CEU has made no showing that any party or Comissioner engaged in such communications during the site visits. The heart of CEU's argument seems to be that unless the relief it seeks is granted there is no way of knowing whether anyone engaged in ex parte communications. This position ignores the self-reporting features of 10 C.F.R. 5 2.780(c). See, Section C, infra.
In its pleading, CEU makes the bold assumption that since two Commissioners visited the South i
Texas Project it is " essentially impossible" that the parties to this pro.
ceeding did not engage those Commissioners in ex parte communication. See Motion pp. 3 and 4.
CEV gives the Comission's ex_ parte rules an unrealis-tically broad reading in its Motion. The language of 10 C.F.R. 9 2.780 provides in relevant part:
i
... neither (1) Commissioners... in the l
exercise of their quasi-judicial functions will request or entertain off the record except from
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Thus the materiality of any ex parte communication is now totally
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conjectural, and the issue is not only inappropriate for the Licensing Board but is also premature.
I
- each other, nor (2) any party to a proceeding...
shall submit off the record to Commissioners...
any evidence, explanation, analysis, or advice, whether written or oral, regarding any substantive matter at issue in a proceeding on the record then pending before the NRC...
Courts have recognized that even after administrative adjudication has begun agency heads may have contact with their staff or an applicant on matters which relate to the litigation in connection with the per-formance of other duties, such as: investigative or prosecutional duties, rulemaking responsibilities, other adjudicative decisionmaking or super-vision of the agency's staff, generally. Agency heads cannot be removed from their supervisory functions by reason of ex, parte rules governing their quasi-judicial behavior.
In Environmental Defense Fund, Inc. v.
Environmental Protection Agency, 510 F.2d 1292,1305 (D.C. Cir.1975), it was indicated that the separation of functions rule would not bar a consultation between the prosecutorial staff and the agency head on whether evidence discovered in the course of an ongoing adjudication should be used as the basis for starting a second prosecution.
Cf.,
RSR Corp. v. Federal Trade Commission, 656 F.2d 718, 722-724 (D.C.
Cir.1981); Pangburn v. Civil Aeronautics Board 311 F.2d 349, 356-358 (1st Cir. 1962).
Hence, there are two initial questions which must be answered in deciding whether there was ej( parte communications under 10 C.F.R.
Q 2.780 during the site visit of either Commissioner as alleged by CEU.
First, did any contact occur between a Commissioner and the Staff or Applicant while that Commissioner was performing a quasi-judicial
. function,0/ and second, did that contact concern a substantive matter at 7
issue in a proceeding on the record then pending before the NRC?_/ Both these questions must be answered in the affirmative before there can be a finding of ex parte communication.
The answers to both questions are primarily within the knowledge of Commissioners Roberts and Gilinsky; and this only serves to highlight the futility of this Board attempting to characterize the Comissioners' activities. Neither the parties nor this Board can decide whether there was ex parte communication during the site visits absent that input.
Indeed, many Commission contacts with persons who are parties to its adjudicatory proceedings fall short of being ex parte communications.
For example, the Commission's rules exclude from ex parte constraints communications requested by the Commission concerning general health and safety problems or the gathering of information pursuant to the Commission's oversight responsibilities.
See, 10 C.F.R. @ 2.780(d)(2).
If the Commissioners' visits in question were inquiries with an eye toward under-
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A Comissioner's quasi-judicial functions would be those subject to 5 U.S.C. 557(a) of the Administrative Procedure Act. Contrast 10 C.F.R. 9 2.780(d).
7/
In light of the three arguments set forth in this pleading, the Staff does not attempt to offer a definitive discussion in this pleading of the scope of what constitutes an ex parte communication.
See, 5 U.S.C. 6 551(14); see generally, Raz InTand Navigation Co.,
Inc. vs. Interstate Commerce Commission 625 F.2d 258, 260-61 (9th Cir. 1980); National Small Shipments, etc. v. ICC, 590 F.2d 345 (D.C. Cir.1978); U.S. Lines v. Federal Maritime Comission, 584 F.2d 519 (D.C. Cir.1978); Home Box Office v. F.C.C., 567 F.2d 9 (D.C. Cir.), cert. denied, 434 U.S. 829, 98 S.Ct. 111, 54 L.Ed. 2d 89 (1977); Sangamon Valley Television Corp. v. United States, 269 F.2d 221 (D.C. Cir.1959).
. standing problems within the industry generally, such communications would.not constitute ex parte contact.
Similarly, the definition of g(
f parte communications in the Administrative Procedure Act states that
" status reports," such as may have been received by the Commissioners during their site visits, do not constitute 3g( parte communications.E/
Thus, even though the consultation may involve the same factual, legal and policy matters which arose in the adjudicatory proceeding, there would be no bar to such conversations if they were in furtherance of the Commissioners' general health and safety responsibilities.
Unless and until CEV makes a showing that there were 3g( parte communications between a party and a Commissioner during either site visit, the relief requested should be denied.
C.
10 C.F.R. S 2.780(c) Provides The Remedy To Cure Ex Parte Contact And Accordingly The Remedy Sought By CEU Is Inappropriate Assuming this Board determines it has jurisdiction in the first instance to pass upon the questions raised by CEU's Motion, and further assuming that CEU has set forth sufficient information for this Board to determine that an fgt parte communication occurred, the relief requested by CEV is beyond that provided by the applicable regulation.
10 C.F.R.
Q 2.780(c) envisions a self-policing reporting system for fg( parte communications. Under that subpart, if a Commissioner receives any oral communication concerning a substantive matter at issue in a proceeding before the NRC, he is to advise the communicator that a written summary
!/
See, 5 U.S.C. Q 551(14).
l
. of the conversation will be delivered to the NRC public document room and thereupon he is to make a fair, written summary of such communication.1/
Should Connissioners Roberts and Gilinsky deem it appropriate to file written summaries of their communications, that action would satisfy all the requirements of 10 C.F.R. 2.780(c) and this Board should not provide for other remedies.
There is no provision in the regulations for affidavits from any other person or other relief pertinent to the Commissioners' discharge of their duties.
In light of the self-reporting scheme envisioned by the regulations, this Board is without authority to order the pt 'aration of the affidavits sought by CEU looking into whether the Commissioners engaged in ej( parte communications.
III.
CONCLUSION For the reasons set forth above, under the facts here presented the Staff submits that it is beyond the jurisdiction of the Board to consider whether information received or conveyed by a Commissioner constitutes 5p( parte communication. Moreover, even if the Board possessed such authority, there has been no showing that any ex parte communication occurred or that this Board has the authority to grant the relief requested.
Thus, CEU's Motion should be denied.
Respectfully submitted, M.
Ja M. Gut rrez Counsel for NRC Staff Dated at Bethesda, Maryland this 22nd day of March, 1982.
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10 C.F.R. Q 2.780(c) provides in pertinent part that a Commissioner receiving an ex parte communication "... will make a fair, written summary of su E communication and deliver such summary to the NRC public document room and serve copies thereof upon the communicator and the parties to the proceeding involved."
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of HOUSTON LIGHTING AND POWER COMPANY,)
Docket Nos. 50-498
--ET AL.
)
50-499
)
(South Texas Project, Units 1 & 2) )
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE IN OPPOSITION TO ALLEGED EX PARTE COMMUNICATIONS" in the above-car.'.ioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 22nd day of March, 1982:
Charles Bechhoefer, Esq., Chairman
- Administrative Judge Brian Berwick, Esq.
Atomic Safety and Licensing Board Assistant Attorney General Panel Environmental Protection Division U.S. Nuclear Regulatory Commission P.O. Box 12548, Capitol Station Washington, DC 20555 Austin, TX 78711 Dr. James C. Lamb III Administrative Judge Jack R. Newman, Esq.
313 Woodhaven Road Lowenstein, Newman, Reis, Chapel Hill, NC 27514 Axelrad & Toll 1025 Connecticut Avenue, N.W.
Mr. Ernest E. Hill Washington, DC 20036 Administrative Judge Lawrence Livermore Laboratory University of California Mrs. Peggy Buchorn P.O. Box 808, L-46 Executive Director Livermore, CA 94550 Citizens for Equitable Utilities, Inc.
Melbert Schwarz, Jr., Esq.
Route 1, Box 1684 Baker and Botts Brazoria, TX 77442 One Shell Plaza Houston, TX 77002 Mr. Lanny Sinkin Citizens Concerned About t
William S. Jordan, III, Esq.
Nuclear Power Harmon & Weiss 2207 D. Nueces 1725 I Street, N.W.
Austin, TX 78705 Suite 506 Washington, D.C.
20006
2-Kim Eastman, Co-coordinator Atomic Safety and Licensing Board Barbara A. Miller Panel
- Pat Coy U.S. Nuclear Regulatory Commission Citizens Concerned About Nuclear Washington, DC 20555 Power 5106 Casa Oro Atomic Safety and Licensing Appeal San Antonio, TX 78233 Board Panel
- U.S. Nuclear Regulatory Commission Docketing and Service Section*
Washington,'DC 20555 Office of the Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555 On M -
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