ML20055D125
| ML20055D125 | |
| Person / Time | |
|---|---|
| Issue date: | 05/23/1990 |
| From: | Curtiss J NRC COMMISSION (OCM) |
| To: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| References | |
| FRN-55FR27645 AD60-1-18, NUDOCS 9007030235 | |
| Download: ML20055D125 (3) | |
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. irr TO:
SAMUEL J. CHILK, SECRETARY OF THE COMMISSION
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FROM:
C0MISSIONER CURTISS
SUBJECT:
SECY-90-074A - REVISION TO-RULES:0F' m'
PRACTICE (10 C.F.R. PART 2, SUBPART B) v w/comgents APPROVED b
UISAPPROVED ABSTAIN NOT PARTICIPATING REQUEST DISCUSSION COINENTS:
See attached conunents.
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SIGNATIJRE RELEASE VOTE
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CORRESPONDENCE PDC
I challenges to be made-at the outset on the need for immediate effectiveness.
Such a challenge can be initiated by a motion by the recipient of the order to set aside the immediate effectiveness of the order.
A motion to set aside immediate effectiveness must be based on one or-both of the following grounds:
the willful misconduct charged is unfounded or the public health, safety or interest does not require the ordercto-be" made immediately effective. No other ground for challenge is permitted inasmuch as no other ground is relevant.
The motion must set out specifically its supporting reasons and must be occompanied by any necessary af fidavits providing the factual basis f or the request.
The added provision also specifies that a motion to set aside the immediate eff ectiveness of an order will be decided protvtly by the presiding officer (an atomic safety and licensing bo6rd or an administrative law judge as designated by the Cormiission) before the presiding of ficer takes up any other raatter not necessary to the resolution of that request.
derf. hme, p2.nedh To assure prornpt decision, the provision establishes u p S th =4 for action by the parties as well as by the presiding officer.
It is expected that the presiding officer normally will cecide the question of immediate ef fectiveness solely on the basis of the order and other filings in the record. The presiding officer may cell for oral ergument. However, an evidentiary hearing is to be held only it the presiding officer finds the record is intaequate to reach a proper decision on immediate effectiveness.
Such a situation is expected to occur only rarely.
In deciding the question of immediate effect1veness under section 2.202 es proposed herein, the presiding officer will bpply an adequate evidence standard. This standard is analoenus to the eviaence necessary to fino 4
interest is sufficient to sustain the immediate effectiveness of the order.
This standard does not require evioence by persons with first hand knowleoge of the facts,e' W ;e m i M ea?d h r:; m ed : ik fell edjudic:t^ y-M:rigj Nor does it call for a balancing of evidence between that provided by the NRC staf f and that provided by the person seeking to set aside immediate effectiveness.
It is not a preponderance of the evidence test.
Rather, if the staff's evidence is sufficient to cause a person of in1HNltAGa offuhJc.nes freMtot1 of he reasonable caution to believe that thgorcer is properly founded, the presiding officer is recuired to uphold the immediate effectiveness of the order.
In this regard, the presiding officer must view the evidence presented in a light niost f avorable to the staff and resolve all inferences it, the steff's favor.
be Comission intends that a motion to set aside the immediate effectiveress of an order will be the only mechenism for challenging immediate effectiveness. In the circumstance, a presiding officer will not entertain any motion to stay the in: mediate effectiveness of an ordcr; nor will e presiding officer issue sua sponte such a stay.
In general, the NS iate eflectiveness willShorles/
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be decided within fif teen (15) days of the date of the Counission order hg i
designating the time and place of hearing.
A presiding officer's order uphciding the immediate effectiveness of an order will constitute the final agency action on immediate effectivoness. A presiding officer's order setting aside immediote effectiveness will be l
f referred promptly to the Commission for review and will not be effective pending further order of the Commission.
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