ML20055F894
| ML20055F894 | |
| Person / Time | |
|---|---|
| Issue date: | 07/03/1990 |
| From: | Rogers K NRC COMMISSION (OCM) |
| To: | Quayle J SENATE, PRESIDENT OF THE SENATE |
| References | |
| NUDOCS 9007190334 | |
| Download: ML20055F894 (2) | |
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l July 3, 1990-
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t The Honorable J. Danforth Quayle President of the United States Senate Washington, D. C. 20510
Dear Mr. President:
In response to the Conference Comittee-Report accompanying the Energy Reorganization Act of 1974, P.L.93-438, I am writing to notify you that the Commission has agreed to a phase-out o' une Atomic Safety and Licensing l
Appeal Panel. The enclosed staff requirements memorandum provides the i
background for, and description of, the process by which the Panel will be
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abolished.
Sincerely, Mk.
Kenneth C. Rogers c
Acting Chairman j
Enclosure:
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July 3, 1990 CHAIRMAN The Honorable Thomas S. Foley Speaker of the United States House of Representatives Washington, D. C. 20515
Dear Mr. Speaker:
l In response to the Conference Committee Report accompanying the Energy-Reorganization Act of 1974, P.L.93-438, I am writing to notify you that the Commission has agreed to a phase-out of the Atomic Safety'and Licensing Appeal Panel..The enclosed staff requirements memorundum provides the-background for, and description of, the process by which the Panel will be l
abolished.
Sincerely, i
r Kenneth C. Rogers l
Acting Chairman t.
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- ..J June 29, 1990 OFFICE OF Tet SECRETARY MEMORANDUM FOR:
Christine N. Kohl, Chairman Atomic Safety and Licensing Appeal Panel William C.
parler General Counsel
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FROM:
Samuel J.
Chilk, Secret r '
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SUBJECT:
COMJC-90-005 - ATOMIC S FE Y AND LICENSING APPEAL PANEL From a. review of-the controller's recent evaluation of workload and resource requirements for the Atomic Safety and Licensing
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Appeal Panel, it is clear that the nature of the appellate litigation within the agency is undergoing substantial change.
Once the Appeal Panel completes its work on pending appeals in the Seabrook pre.:eeding, appeals in~ construction permit and I
operating licento proceedings for the existing generation of 1
nuclear power plants -- the mainsta within the agency for many years - ys of appellate litigation I
will have. drawn to a close, j
At the same time, consistent with the shift in the. agency's i
regulatory focus from licensing new power reactors to overseeing the day-to-day operations of reactors and materials licensees, i
NRC's administrative litigation in the foreseeable-future will involve reactor license-amendments, materials-licensing, 1
. enforcement matters, and power reactor license renewals.
The impending completion of the last major operating' license-proceeding, as well. as the shif t in the fundamental character of i
agency litigation,. presents the Con.nission with an opportunity: to restructure the NRC's appellate process to address some of the criticisms that have been directed to that process over the years.
In order that the commission might increase its direct involvement in' agency adjudications, provide earlier regulatory l
and policy. guidance in litigation, and remove some of the overly-judicialized layers of formal appellate procedures that have evolved over the years, the commission, with all commissioners concurring, has agreed to abolish the ppeal Panel and, in its place, establish a mechanism for direct review of Licensing Board decisions by the Comnission.
Accordingly, the Commission has agreed to begin an orderly phase-out of the Appeal 1
Panel and its functions, with the ulcimate objective of p y y -f g {j i) Q s !
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abolishing the Appeal Panel once the rights of the parties to pending1 appeals have been properly accommodated.
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~To' assist the Cc= mission in achieving this objective, the Office of the General Counsel should provide:
1).
a transition plan to phase out the Appeal panel, taking=
into account the procedural rights of parties to.
pending proceedings to pursue appeals before the Appeal Board:
(OGC)
(SUSPENSE:
August 15, 1990) i 2) a discussion of the options and procedures for direct Commission review of Licensing Board decisions,-
including a discussion of such matters as-the effectiveness of Licensing Board decisions during the-pendency of the commission's review, mandatory versus discretionary acpeals to the Cctmission, and possible T.ecnanisms for jarties to comment on Licensing Board decisions in the' event that the Commission does not provide an appeal as-of-right.
The-discussion should-also evaluate the merits of creating a Commission level' Opinion Writing Office which would work closely with the commissioners in initially drafting decisions.
The office would also work closely with the General Counsel's Office to assure the Cc= mission-receives OGC's views'on the defendability of any proposed actions before. acting on adjudicatory issues.
The office would also maintain the variety of expertise,-
including both legal and technical expertise, that currently exists on the Appeal acard and:-
(OGC)
(SUSPENSE:
August 15, 1990) 3)
recommended changes to the procedural regulations in 10 CFR Part 2 to reflect the abolition of the Appeal Panel and the establishment of a mechanism.for direct Commission review of Licensing Board decisions.
(OGC)
(SUSPENSE:
October, 1990)
OGC should coordinate its work on these eval'uations and recommendations with the Appeal Panel so that the recommendations can be provided to the Commission in a time-frame that would allow the Commission to terminate the Appeal Panel when the Panel's work on currently pending appeals is completed.
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.OGC. should work with the Office of Congressional Affairs to provide notification of the Commission's intent to terminate the Appeal Panel to the appropriate Congressional committees in accordance with the Conference Committee Report acco=panying the 1974 Energy Reorganization Act.
(OGC/OCA)
(SECY SUSPENSE:
ASAP) cc:
Chairman'Carr t
Commissioner Roberts Commissioner Rogers Commissioner Curtiss 1
Commissioner Remick EDO IG GPA ASLBP GPA/CA I
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June 13, 1990 OFFICE OF THE L
COMMISSIONE R COMJC-90-5 MEMORANDUM FOR:
Chairman Carr Commissioner Roberts commissioner Rogers q
Commissioner Remick 1
FROM:
Commissioner Curtis
SUBJECT:
ATOMIC SAFETY AND' LICENSING APPEAL PANE From a preliminary review of the Centroller's draft evaluati workload and resource requirements.for the Atomic Safety and on of Licensing Appeal Panel, it is clear that the nature of the appellate litigation within the agency is undergoing substantial change.
Once the. Appeal Panel ecmpletes its work on pending i
appeals in the Seabrcek proceeding permit and operating license procee, dings for the existingappeals in generation of nuclear. powerplants -- the mainstays of appellate litigation within the agency for many years -- will have dra a close.
At the same time, wn'to consistent with the shift in the overseeing the day-to-day operations of reactor and licensees, future will involve reactor license amendments, materials licensing, enforcement matters, and. power reactor license renewals.
t Ihe impending completion of the last major operating licen proceeding, as well as the-shift se Opportunity to restructure the MRC's appellate pr i
some of the criticisms that have been directed to that process ocess to address Over the years.
In'orcer that the Commission might increase its j
l direct involvement in agency adjudications', provide earlier.
' A major: finding of the Kemeny Commission in it of = institutional infirmities after the TMI-2 accident s assessment was that:
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[t]he HRC commissioners have largely themselves - from the licensing process. isolated Although the commissioners have adopted unnecessarily stringent 1
ex carte rules to preserve their adjudicative impartiality, they have also delegated most of their adjudicative duties to the Atomic Safety and Licensing Appeal Board g Q..0' C+-W J (('
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overly-judicialized, regulatory and policy guidance in litigation, remove som 2
evolved over the years,fprmal appellate procedures that have and perhaps save some resources in the Recort of the President's Commission on the Accident Mile Island, at Three October 1979, Main Report,
- p. 51.
The Rogovin Special Inquiry Group had similar criticisms:
Although the NRC itself, und the' law, is the final administrative decisionmaker in the licensing and regulatory process, it has delegated substantially all of that authority J
to the Atomic Safety and Licensing Appeal Board Although one might expect the l
NRC as a collegial body to play a substantial y
role in significant licensing determinations regarding individual plants, that is not the case.
i In practice, NRC l
consideration of appeals from the appeal i
board is rare: the appeal board generally has
'1 the final word on issues raised'before it.
1 Three Mile Island - A Report to the Commissioners and to the Public, -January 1980, Vol.
2, Part 1, p.113.
L TMI-2 accident addressed the criticisms.Few of' the changes to th 2
Despite the Commission's admonition that i
l boards should promptly seek Commission guidance when theyadjudicatory encounter significant legal or-policy questions in the course of
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3n adjudicati0n, Statement of Poliev on Conduct of Licensine Proceedines, CLI-81-8, 13 NRC 452, 456 (1981), the boards generally have been reluctant On auen 1ssues.
to ask for the: Commission's views p
early on has resulted in needlessThis reluctance to seek Commission guidanca cycles of appeals, litigation,' seemingly endless delay in the resolution a# remands and relitigation, and' substantial number of cases over the.ast ten years.important legal and. policy issues in a A case in point is the
' manner in which the adjudicatory boards and the Commission i
handled the development of the " realism"' doctrine'in the Shoreham proceeding, with Commission guidance on this most policy question coming nearly two years years after the issue was important first identified as a significant concern in the adjudicatory proceeding.
3 series of procedural regulations atThe NRC's internal appellate process is 10 CFR $5 2.714a, 2.715(c) and (d), 2.718(1), 2.730(f), 2.760, 2.762, 2.763, 2.764, 2.770, 2,771, 2.785, 2.786, 2.787 and 2.788.
very large number of interpretive rulingsThese regulations and a issued over many years m.
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long term,
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in its place, establish a mechanism for direct review ofI w Licensing Board decisions by the commission.
the Appeal Panel and its functions, with the ultim
-out of of abolishing the Appeal Panel once the rights of the parties to ective pending appeals have been properly accommodated.
proper and. orderly phase out of the Appeal panel, I wnuld propos To ensure a that we direct the Office _of General Counsel to provide:
1.
.taking into account the procedural rights ofa trans before the~ Appeal Board; parties to pending proceedings to 2.
a discussion of the options for direct Commission i
review of Licensing Board decisions; and 3.
in 10 CFR Partrecommended changes to the procedural regulations 2 to reflect Appeal-Panel and the establishmentthe abolition of the i
for direct of a mechanism decisions. Commission review of Licensing Board i
These evaluations and recommendations should be provided i timeframe that would allow the Commission to terminate t I
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. Panel when the Panel's work on currently pending appeals is e Appeal completed.
SECY, please track.
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Lappellate review that is comparable to those app appellate courts.
Interpretive rulings in.particular have the ; format and content of appellate briefs, the timi o
for extensions of time on briefs and~the matters to be addre of motions in motions to postpone oral arguments. See.'e a sed Electric & Gas Co.
Public Service (Hope Creek Generating. Station, Units 1 & 2),
ALAB-394, 5 NRC 769, 771~n.2 l
-(Waterford Steam Electric Station, Unit 3),(1977); Louisiana Power &_ Lich (1973); Philadelchia Electric Co.
ALAB-117, 6 AEC 261
. Station, Units 1 & 2), ALAB-165, _ (Peach Bottom Atomic Power 6 AEC'1145 (1973 This sort of has been widely criticized -- a.':d properly so,extrece proce in my view.
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