Text

Review of Aslbp
	ML20056A140
Person / Time
Issue date:	06/30/1990
From:	; NRC OFFICE OF THE INSPECTOR GENERAL (OIG)
To:	;
References
	NUDOCS 9008030311
	Download: ML20056A140 (62)
	v • d • e

___-______-

f

.s, L

@..%...),

1 OFFICE OF THE L

INSPECTOR GENERAL U.S. NUCLEAR REGULATORY COMMISSION l

I l

Review of the Atomic Safety anc Licensing Board Panel 4

l l6 l

JUNE 1990 010 90A-11

((['h,;[., '

,,',]

[$t50 %,,

UNITUD STATES

['

'g NUCLEAR REGULATORY COMMISSION

-t WASHINGTON. D.C. 20666 p,

\\,'-

g!

U OFFICE OF THE INSPECTOR GENERAL MEMORANDUM FOR:

B.

Paul Cotter, Chief Administrative Judge Atomic Safety and Licensing Board Panel

& 0l w N &

FROM:

William Glenn, Acting Assistant Inspector General for Audits

SUBJECT:

REVIEW OF THE ATOMIC SAFETY AND LICENSING BOARD PANEL Attached is the Office of tne Inspector General's (OIG) report on our review of the Atomic Safety and Licensing Board Panel

( ASLBP).

The report examines the workload and resource requirements of the ASLBP in light of the decrease in construction permit and operating license cases before the Panel.

The report also identifies other functions that can be performed by the ASLBP during periods of low caseload.

On May 25, 1990, the Chief Administrative Judge, ASLBP, commented on five of the seven recommendations contained in the draft report.

The Deputy Executive Director for Nuclear Materials Safety, Safeguards and Operations Support commented on the remaining two recommendations on June 8, 1990.

Both officials agreed with the recommendations addressed to them.

The final report contains an " Executive Summary" which briefly describes the findings, conclusions, and recommendations presented in the report.

.e e

y

We appreciate the time and_ cooperation extended to OIG by the ASLBP and staff during this audit.

Attachment:

As stated cc w/ attachment J. Taylor, EDO H. Thompson, EDO S. Chilk, SECY W. Parler, OGC H. Denton, GPA T. Murley, NRR E. Jordan, AEOD E. Beckjord, RES R.

Bernero, NMSS T. Martiti, RI S. Ebneter, RII A.

B. Davis, RIII R. Martin, RIV J. Martin, RV J.

Blaha, EDO L. Hiller, ICC t

J

j REVIEW OF THE ATOMIC SAFETY AND LICENSING BOARD PANEL EXECUTIVE

SUMMARY

INTRODUCTION 1

The Office of the Inspector General (OIG) has reviewed the functions and operations of the Atomic Safety and Licensing Board Panel (ASLBP).

In its comments to the Five-Year Plan, the Commission mandated that a review of the ASLBP be conducted because of the decrease in construction permit and operating license cases before the Panel.

The Commission subsequently agreed that OIG should perform the review.

The Atomic Energy Act of 1954, as amended, requires that a hearing be held for every application for a construction permit for a nuclear power plant or related facility.

The Act also requires an opportunity for a hearing in connection with other licensing proceedings under the Act.

The ASLBP is the Office that performs the hearing function for the Commission.

OBJECTIVES AND SCOPE The objective of our review was to assess ASLBP's operations, workload and resource level in light of the decrease ir.

construction permit and operating license cases before the Panel.

We examined the adequacy of ASLBP's staffing level and the functions performed by the administrative judges and staff of the ASLBP.

FINDINGS Overall, we found that it is difficult to project the workload and resource requirements necessary to carry cut the mission of the ASLBP.

Also, the ASLBP is going through a transition period with a change in the types of cases conducted.

The report contains four findings covering various aspects of ASLBP's operations.

More specifically, we found that:

The cases forecast by the ASLBP for Fiscal Year (FY) 1990 have been flied at a pace slower than expected.

This makes it necessary for ASLBP to reevaluate its forecasts of cases for FYs 1991-94.

The significant decrease in caseload and the nature of ASLBP's work make it necessary for ASLBP to institute management controls to ensure that Panel members are fully utilized.

At the time of our audit three Panel members did not have a full caseload.

One member had a low caseload because of extenuating circumstances.

The two remaining members had recently completed cases that required greater portions of their time.

l

The functions performed by the ASLBP could be expanded to bridge the gap during periods of low caseload.

Many functions were identified which can be performed by the ASLBP.

l The ASLBP does not have formal operating procedures which

i provide general guidelines on the conduct of adjudicatory cases and other ASLBP operations.

Formal operating.

l procedures have been drafted but have not been finalized.

CONCLUSION The ASLBP conducts a wide range of cases that vary in complexity, J

subject matter, and length of time to complete.

The nature of the work make it essential that management controls be in place to ensure that members are fully utilized.

Also, additional functions can be performed by the ASLBP to bridge the gap during periods of low caseload.

Further, formal operating procedures should be finalized and put in effect by ASLBP management.

Such procedures are in line with sound internal controls.

RECOMMENDATIONS Tha report makes seven recommendations.

Five recommendations are addressed to the Chief Administrative Judge and two recommendations are addressed to the Executive Director for Operations (EDO).

AGENCY COMMENTS On May 25, 1990, the Chief Administrative Judge, ASLBP, provided comments on five of the seven recommendations contained in OIG's draft report.

The Deputy Executive Director for Nuclear Materials safety, safeguards and Operations support provided comments on the two remaining recommendations on June 8, 1990.

Both officials agreed with the recommendations addressed to them and provided suggested changes to the report.

We reviewed the proposed changes and made those we deemed appropriate.

The comments are included in full as Appendices V and VI.

2

i TABLE OF CONTENTS Page INTRODUCTION 1

BACKGROUND.

1 SCOPE AND METHODOLOGY 3

FINDINGS 4

WORKLOAD FORECASTS.

5 i

UTILIZATION OF ASLBP MEMBERS AND STAFF.

5 Use of Full-Time Members 6

~

Use of Part-Time Members 8

Use of Support Staff 10 OTHER FU11CTIONS FOR THE ASLBP 11 FORMAL OPERATING PROCEDURES 13 CONCLUSION 14 RECOMMENDATIONS 14 AGENCY COMMENTS.

15 APPENDICES I

Panel Members, March 19, 1990 II ASLBP Staffing Considerations, March 21, 1990 III ASLBP Staffing Considerations, (Support Staff),

March 21, 1990 IV Memorandum, B. Cotter to R. Kelley, March 9, 1990 V

Memorandum, B. Cotter to R. Donovan, May 25, 1990 VI Memorandum, H. Thompson to R. Donovan, June 8, 1990 VII Major Contributors to this Report e

e

- _~

REVIEW OF THE ATOMIC SAFETY AND LICENSING BOARD PANEL INTRODUCTION The Office of thi Inspector General (OIG) has completed a review of the functions and operations of the Atomic Safety and Licensing Board Panel ( ASLBP).

The review focused primarily on the workload, resource levels, and mission of the ASLBP in light of the significant reduction in the number of construction permit and operating license cases before the Panel.

BACKGROUND The Atomic Energy Act of 1954, as amended, requires that a hearing be held for every application for a construction permit for a nuclear power plant or related facility.

The Act also requires an opportunity for a hearing in connection with other licensing proceedings under the Act.

Other sections of the Act or the Commission's rules provide an opportunity for a heering on such matters as antitrust issues, enforcement actions, and civil penalties, as directed by the Commission.

The ASLBP is the office that performs the hearing function for the Commission.

It also performs other regulatory functions as the commission authorizes.

The ASLBP was created by the Commission in 1962 under the authority of Section 191 of the Atomic Energy Act of 1954, as amended.

NRC's hearings under the Atomic Energy Act are generally conducted before a three member Board which is drawn from the Panel of members of the ASLBP.

All Panel members are called administrative judges and two of the Panel members are administrative law judges.

The Chief Administrative Judge develops and applies procedures governing the activities of the ASLBP and makes recommendations to the Commission concerning the rules governing the conduct of hearings by the Licensing Boards.

Hearings conducted by the ASLBP are the Commission's principal public forum in which individuals and organizations can voice their interests in a licensing, enforcement, or other matter, and have those interests adjudicated by an independent Board.

Licensing and construction permit hearings are conducted before Licensing Boards comprised of three administrative judges chosen from the ASLBP.

In other matters, hearings may be conducted by a single administrative judge or an administrative law judge from the ASLBP.

1 i

rw-

l l

l The three member Boards have one legal and two technical experts.

The Board chair is usually a full-time Panel member and is always the legal member of the Board.

The bulk of the responsibility for the actual conduct of the hearings falls upon the lawyer-chair of the Board who often rules on such things as the relevance and reliability of evidence.

These rulings sometime require a brief conference with the technical members of the Board.

Throughout the conduct of a case the Board members confer both in person and by phone on various issues.

Each Board member has one vote and the majority rules in the Board's decisions.

Petitions for hearings can be filed by any person whose interest may be affected by the proceedings.

The petitions are filed with the Office of the Secretary of the Commission where they are

)

l docketed and forwarded to the ASLBP.

At the ASLBP, the case files are then set up and the Board appointments are made.

For the most part, the judges are appointed to the Boards by the 1

Chief Administrative Judge based on such things as their i

expertise and current workload.

In a few instances the Commission appoints the judges to the Board in Special Proceedings (fact finding, adjudicatory or investigative proceedings).

The ASLBP has been assigned an i

average of one Special Proceeding a year by the Commission.

The cases adjudicated by the ASLBP vary widely in complexity, technical subject matter, and length of time to complete.

During the 1967-74 period, the hearings conducted by the ASLBP changed from relatively brief, uncontested proceedings to lengthy, more adversarial contests.

In the early 1970s environmental impact I

issues surfaced during the proceedings.

In the 1980's much of l

the hearings' subject matter on nuclear power dealt with emergency planning.

The wide range of subjects covered by the ASLBP necessitates having varied expertise among the Panel members to examine the issues.

Consequently, the ASLBP is comprised of members with legal and various technical and environmental backgrounds.

See Appendix I for a breakdown of the disciplines of the ASLBP members.

)

There are 13 full-time and 23 part-time members on the ASLBP.

The ASLBP is authorized a total of 31 full-time equivalent (FTE) positions for FY 1990.

The average length of service for the permanent Panel members is over ten years and the newest permanent member was appointed nine years ago.

Appendix I lists the full-time and part-time members of the Panel and the members of the ASLBP staf f as of March 19, 1990.

A study of the ASLBP similar to our reviaw was performed by the former Office of Administration and Resources Management in 1988.

That study was requested by the Commission because of a request i

by the Chief Administrative Judge, ASLBP, that the ccmmission 2

l revisit adjudicatory staffing needs for fiscal year (FY) 1990 and beyond.

That study found ASLBP's workload forecasts generally acceptable, with some exceptions, and recommended no change in the resource levels of the Panel.

SCOPE AND METHODOLOGY Our review was conducted at NRC Headquarters during February and March 1990 in accordance with generally accepted Government auditing standards.

The study of the ASLBP was mandated by the Commission in their comments on NRC's Five-Year Plan.

The Commission subsequently agreed that OIG should perform the study.

Our primary objective was to assess the operations, workload and resources of the ASLBP in light of the decrease in construction permit and operating license cases.

We interviewed various NRC officials and employees including two Assistants to Chairman Carrt the Deputy Executive Director for Nuclear Materials Safety, Safeguards and Operations Support; and the Directors of the Offices of Nuclear Reactor Regulation, Nuclear Material Safety and Safeguards, Nuclear Regulatory Research, Enforcement, the Secretary of the Commission, Administration (ADM), Personnel (OP) and Small and Disadvantaged Business Utilization and Civil Rights (OSDBUCR).

We also j

-interviewed the Deputy Director, Office for Analysis and Evaluation of Operational Data, officials in the Office of the General Counsel (OGC) and selected full-time and part-time members and staff of the ASLBP.

Further, we obtained information from the full-time members and staff of the ASLBP by way of a questionnaire.

The audit encompassed examination of various documents regarding the functions performed by the ASLBP, including an assortment of laws and regulations, NRC Manual Chapter 0106, " Organization and Functions of the Atomic Safety and Licensing Board Panel,"

workload and resource forecasts, monthly reports to the Commission, annual reports, minutes of meetings, files and general correspondence.

We also performed analyses and tests, as necessary.

To gain an understanding of the hearing process carried out by the ASLBP, we attended the limited appearance session and the prehearing conference for the licensing amendment case being conducted by the Board for the Turkey Point Nuclear Power Plant.

We viewed video tapes of the Three Mile Island restart hearings and of training sessions for Panel members.

In addition, we attended a briefing conducted by the ASLBP for a delegation of visitors from Korea.

OIG was assisted in this review by an employee from the office of the Controller who provided statistics on the staffing and program support for the ASLBP.

3

TINDINGS Overall, we found that it is difficult to project the workload j

and resource requirenents necessary to carry out the functions performed by the ASLBP.

At present, the ASLBP has no active

I construction permit cases; therefore, the workload of cases depends largely on individuals and/or organizations exercising options to petition NRC for hearings on matters that interest them.

Even in instances where the agency is reasonably certain that a case will be filed, the timing of the filing is still uncertain.

Further, the individual cases vary extensively in nature, complexity and 35 vel of effort to complete, and the makeup of the cases is hard to predict with certainty.

The ASLBP is going through a transition period'with the shift from construction permit and operating license cases to more cases involving enforcement actions, license amendments, civil penalties, and materials license issues in the short range.

It is expected that over the next few years the caseload will increase with cases involving plant life extensions, decommissioning, plant design standardization, and high level waste.

However, it is not possible to know the number of contentions, the degree of complexity, or the level of effort required to complete these cases.

This change will likely result in a shift in the nature and complexity of the legal and technical issues placed before the Panel and also compound the difficulty of forecasting workload and resources.

The number of cases being conducted by the ASLBP has decreased over the years and was at a low of 24 at the time of our audit.

Three additional cases were docketed near the end of our review, bringing the total to 27.

In FY 1986 ASLBP had 58 cases on the docket.

The significant decrease in ASLBP's caseload has been accompanied by a significant decrease in Panel members and staff.

During our review we found that:

--The cases forecast for FY 1990 have been filed at a pace slower than expected;

--The significant decrease in caseload and the nature of ASLBP'S Work make it necessary for the office to institute management controls to ensure that Panel I

members are fully utilized;

--The functions performed by ASLBP could be expanded to bridge the gap during periods of low caseload; and

--The ASLBP does not have formal operating procedures.

Each of these issues is discussed in the following sections of this report.

4 i

w

\\'ORKLDAD FORECASTS In October 1989, ASLBP forecasted a workload inventory of 47 adjudicatory cases for FY 1990.

This number was later reduced to 46 because one case was found not to be adjudicatory.

At the beginning of FY 1990 18 cases were on the docket, and as of April 4,

1990, an additional nine cases had been added to the docket, bringing the total to 27.

This means that 19 of the estimated 46 cases remain to be filed in the last five months of the fiscal year.

We noted that ASLBP had also estimated that 17 judicial FTEs would be needed to conduct the 46 cases.

At the time of our audit, the ASLBP had 13 full-time judges.

Our analysis of the docketing of cases showed that an average of 4.56, 4.11, 3.0, and 4.75 cases were docketed in each of the four quarters for the last nine years.

As a result, it appears unlikely at the present time that the caseload forecasted by ASLBP for FY 1990 will be received.

We discussed the ASLBP's workload forecasts with officials in the OGC and were told that the estimates appeared to be reasonable.

However, both ASLBP and OGC officials acknowledged that cases are being filed slower than expected.

Based on the delays in the filing of cases for FY 1990, the slippage in the schedule for the high-level waste repository and the uncertainty in the timing of the plant life extension cases, we believe the ASLBP should reevaluate its forecast of cases for FYs 1991-94.

UTILI2ATION OF ASLBP MEMBERS AND STAFF As stated above, both the caseload and the staffing level for the ASLBP have declined over the years.

In FY 1986 the ASLBP had 58 cases on the docket compared to 40 cases in FY 1989.

This represents a 31 percent reduction in the number of cases during this period.

In 1986 ASLBP had 19 full-time judges, compared to 13 in FY 1989, a reduction of 32 percent.

Fourteen FTEs are allotted for judges; however, one full-time judge is now working a part-time schedule due to illness.

One judge retired at the end of March 1990 and another is expected to retire by the end of FY 1990.

This will reduce the number of full-time judges to 11 and represents a reduction of 42 percent from FY 1986.

The Chief Administrative Judge intends to replace the two judges retiring in FY 1990.

The chief Administrative Judge stated that the ASLBP needs a minimum of 14 full-time and 25 part-time judges and a support staff of 16 full-time employees to perform its mission.

We found that, for the most part, ASLBP judges were being fully utilized.

l 5

However, some judges had an unusually low caseload at the time of our review.

Our findings with regard to ASLBP's staffing level and use of judges and staff are presented below, Use of Pull-Time Members At the time of our review the ASLBP had 13 full-time judges, including the Chief Administrative Judge and two Deputy Chief Administrative Judges.

At that time, the judges were assigned a total of 24 cases and were performing a limited number of special assignments and various other duties in connection with the overall management of the office.

As part of our analysis of the workload and use of the judges, we asked each judge to complete a questionnaire regarding the work he was performing and how much of his time each job consumed.

Based on our review of the responses to the questionnaires, interviews with selected judges, and other analyses, we found that, for the most part, the case work being performed by the judges required either all or nearly all of their time.

Our review disclosed, however, that three judges were devoting low percentages of their time (15 percent for two judges and 20 percent for the third) to the cases assigned to them.

We found that one of the judges was assigned a low caseload because of extenuating circumstances.

Also, one of the two remaining judges retired at the end of March 1990.

We were told that the time devoted by the two judges to cases was low because of the stage at which the cases happened to be in the progression of work, and there were no other cases to be assigned to these judges.

We recognize that the low caseload of the two judges on the date of our discussions with them was not necessarily indicative of their level of effort at previous points in time on these or other cases.

We found that both of the judges had completed cases about two months ago that required a substantially greater portion of their time.

Our analysis of the workload showed that some cases conducted by the ASLBP require nearly 100 percent of one or more gudges' time for extended periods of time, whereas other cases require considerably less effort.

In addition, there are vast fluctuations in the time requirements for a given case depending on the status of the case or whether action is required by someone outside of the ASLBP.

The judges emphasized that in addition to casework they spend time doing general reading relative to their profession, casework, and the office's overall mission.

The two judges were also performing special assignments not directly related to their casework.

6

+. -..

= - - - -

l

.In a memorandum to OIG, the Chief Administrative Judge stated there is a need to have a certain amount of what otherwise might be viewed as " dead time" on each judge's part because of the high cost of delay in major nuclear facilities.

He added that the cost of delay has been estimated to range from $400,000 to

$1,000,000 for each day a reactor is not operating.

He believed that license applicants need a prompt decision, favorable or unfavorable, from the Licensing Boards.

He further stated that if the costs from delay are to be avoided, judges must be available to act and cannot be tied up on another case when action in a major facility case needs to be taken.

The Chief Administrative Judge pointed out that the term " dead time" is misleading because each judge has other adjudicatory and non-adjudicatory work to do during these periods of time.

This work includes researching, drafting, editing or consulting with the Chief Administrative Judge on various aspects of the Panel's work, peer reviews of other judges' decisions, providing technical and legal advice to other judges, and keeping current with developments in legal and technical disciplines.

We believe the uncertainty in the caseload, the complexity of the cases, and the vast fluctuations in the 3evel of effort required on a given case make it imperative that the work assignments of the judges be carefully managed to ensure that they are fully utilized.

At present, the judges are required to complete a monthly status report on their cases; however, this management tool does not provide information on the amount of time devoted to the cases by the judges during the reporting period.

In our opinion, ASLBP should have an internal system whereby the judges report how their time was spent during the reporting period and estimate the time expected to be devoted to their cases for the upcoming period.

This will provide ASLBP management with a systematic way to measure the level of effort required by the cases and identify judges to be assigned to other cases and/or functions perforand by the ASLBP.

There are a number of considerations that go into estimates of ASLBP staffing requirements.

As stated earlier, ASLBP estimates that a minimum of 14 full-time judges are needed to perform its mission.

The Chief Adminiutrative Judge stated that the present and future workload, average age of the full-and part-time judges, the areas of expertise required by the Panel, and an emergency allowance factor are all considered in his staffing estimates.

He added that he believes 14 full-time judges, supplemented by part-time judges, is adequate because most of the cases are not as complex as in prior years and the FY 1990 cases have not been filed at the rate expected.

He further stated that the number of new, complex cases filed will increase substantially from FY 1991 to FY 1995.

He estimated that 17 to 23 judicial FTEs will be needed to handle the anticipated increased workload.

7 l

I

J The Chief Administrative Judge pointed out that because NRC cases are a unique blend of law and science, it takes at least two years experience as a Panel judge for even the most experienced legal or technical judge to become profi: lent in working with a three member, mixed-discipline Board.

He also provided more extensive detail on the staffing considerations for judges.

An excerpt from a memorandum from the Chief Administrative Judge providing more extensive detail on the staffing considerations for judges is included as Appendix II.

Based on our review, the present level of 14 judicial PTE's appears appropriate to handle the present workload.

We believe the ASLBP will be better able to forecast its future resource needs at the end of FY 1990.

Use of Part-Time Members Our analysis of case assignments to members of the ASLBP has shown that cases assigned to part-time judges have decreased slightly since FY 1987.

The following information was extracted from a printout of the ASLBP's utilization of part-time judges between FY 1987 and FY 1990

-- Between FY 1987 and January 31, 1990, there have been 25 part-time members of the ASLBP.

-- Six of these 25 (24 percent) were not assigned to a single case between TY 1987 and FY 1990.

-- Five part-time judges were assigned only one case and another five part-time judges were assigned only two cases during this period of time.

-- Nine part-time judges had more than two case assignments between FY 1987 and FY 1990 with one part-time judge receiving eight cases and another part-time judge receiving six cases during this time period.

-- Nine part-time judges (36 percent) had active cases, accounting for 17 active case assignments and two suspended cases as of January 1990.

Four part-time members were assigned to two or more cases.

-- One part-time member's single case assignment has been suspended for several fiscal years.

-- Six of the seven part-time members who have not been assigned to an active case during the past three fiscal years had attended one or more annual meetings of the ASLBP costing the agency $3,800 in FY 1989, $4,183 in FY 1988, and $3,250 in FY 1987.

8

O The Chief Administrative Judge stated that the time and cost expended in obtaining and keeping part-time members is well worth the investment to have knowledgeable experts in various disciplines available when needed.

Further, he said it takes a few years to train a member of the Panel to think in the judicial way.

Like a lawyer, a technical opinion must stand the test of time.

An ASLBP judge's decision has to be final and binding.

Each Board member has an equal vote and may express either the majority or minority opinion in deciding the case.

The Chief Administrative Judge noted that NRC is currently establishing a list of qualified candidates who could be appointed to the ASLBP as new members when needed.

Nominations will be requested by the agency for candidates for both permanent full-time and part-time positions with an immediate need for candidates with expertise in nuclear physics, geochemistry and geohydrology.

Both legal and technical administrative judges are appointed to the panel by the Commission on the basis of

+

recognized experience and achievement in their field.

The Chief Administrative Judge indicated that once a member has been identified as a qualified candidate, the individual will be placed on a register by discipline and by preference for either full-time /part-time status.

When a vacancy is determined by discipline, a list of two qualified candidates is sent to the Commission for selection.

We discussed case assignments with two part-time members of the ASLBP and both members expressed to us the opinion that if cases were not assigned to part-time members, they would prefer not to be appointed as part-time judges to the Panel.

During periods of low caseload activity, the ASLBP is in a quandary to satisfy the needs of both full-time and part-time members who are competing for fewer and fewer cases.

If cases are restricted totally to full-time members, the part-time members may leave the Panel and thus not be available when the caseload increases.

However, if cases are assigned to part-time members, then full-time members may not be effectively utilized.

We believe that the ASLBP should reconsider the need to continuously appoint all part-time judges to positions on the Panel particularly during periods of low caseload activity and for those disciplines that are infrequently required for Board assignments.

One alternative method for hiring part-time members would be to select candidates from the part-time register by discipline and appoint the judges to temporary positions either for a specified period of time or to a specific case.

Once the case is concluded, the appointment would be terminated.

9

l The advantages of using the register for temporary appointments aret the agency can hire only those members needed for a specific period of time; temporary appointments can be used to supplement the full-time staff during periods of increase or temporary aberrations in caseload activitiest the agency can be flexible in assigning disciplines to the various Boards; it may be easier to retain members on the registert and it may be less costly and cumbersome to administer because annual appointments would not have to be made.

The disadvantages of using the register for temporary appointments aret the need to continuously maintain and update the registers for part-time positions; it may repire an in-depth and specialized training program on administrative law practices for new appointees who may only be appointed to a Board once; every temporary part-time appointment requires commission approvals it may require advance planning to ensure a timely security clearance waiver; and it may prevent development of an experienced core of administrative judges knowledgeable of adjudicatory matters in certain disciplines.

Another alter.tive method for obtaining knowledgeable experts in infrequer',

used disciplines would be to develop a register for consua v,; who would be used as special assistants to the Board, Lhe special assistant would act as a technical i

advisor /intwrrogator on those issues where the ASLBP lacks expertise.

We found that the ASLBP has previously used full-time members as special assistants on several case assignments, j

Although part-time judges are routinely offered yearly renewals of their appointments to the Panel, we believe that the ASLBP should explore the possibility of hiring new part-time members to the ASLBP for those disciplines used infrequently or not needed on a continuous basis on a temporary basis,-i.e., only when needed and only for a specific time period or case assignment, or as a special assistant to a Board.

We are not espousing that part-time intermittent appointments be discontinued.

However, we believe the Panel should periodically evaluate the need for each discipline among the part-time intermittent appointments.

The Chief Administrative Judge should consider this approach for both current part-time appointments and future appointments for those disciplines used infrequently or not needed on a continuous basis.

Use of Sucoort Staff The ASLBP presently has 16 full-time employees on its staff,

,l including two attorneys, one technical advisor and 13 members on the Program Support and Analysis Staff (PSAS).

The PSAS includes two managers, eight paralegal /secretarios and three management information specialists.

These employees provide support for the full-time and part-time Panel members, library. services for the 10

'ASLBP, the Atomic Safety Licensing Appeal Panel, and the Licensing Support System Administrator, and contract administration for court reporters for all NRC offices except the Commission.

The PSAS staff also supports the legal and technical staff members.

We examined the duties and responsibilities of each member of the ASLBP staff and focused our examination on the PSAS staff because the majority of the staff members are on the PSAS.

The PSAS, among other duties, provides typing and other secretarial, paralegal, docketing, and library services; provides hearing and meeting support wherever hearings are held; and maintains a computer based document search and retrieval system.

At one time the ASLBP support staff also included one law clerk for every three or four judges, two Panel technicians to assist in preparations for the hearings, and two senior technical assistants.

The support staff has been cut by about 16 positions since FY 1983.

The Chief Administrative Judge provided information on the above referenced duties performed by the support staff (see Appendix III).

We did not identify a problem with the level of staffing of the support staff, considoring the various duties performed by the staff and the projected increase in the ASLBP's workload.

OTHER FUNCTIONS FOR THE ASLBP I

ASLBP management believes there are other functions and activities that the ASLBP could perform for the agency during periods of low case level activity.

The ASLBP has identified 10 potential types of cases that could be heard by board panel members that are presently either sent outside NRC, heard inside NRC by other agency officials, or for which hearings are not presently being held.

The areas identified by the ASLBP are Access Authorization - Security Clearance 4-i (10 CFR Part 10);

Special Nuclear Materials Access Authorization (10 CFR Part 11);

i l

Personnel Hearings (Adverse Actions and Grievances);

l Equal Employment Opportunity Conmission (EEOC);

i Contract Disputes; Differing Professional Views (DPV) and opinions (DPO) ;

Informal Rulemaking; l

11

Freedom of Information Act Appeals; l

Reconsideration of Tort claims Act Denials; and Fitness for Duty See Appendix IV for more detailed information on the Chief Administrative Judge's position.

1 During our review, we discussed eight of the ten areas with agency officials responsible for or knowledgeable of these areas.

We did not review or discuss with other NRC officials the areas pertaining to Freedom of Information Act Appeals since these cases are referred to the Office of the Secretary of the Commission to decide, and Reconsideration of Tort Claims Act Denials since these cases would be rare.

In general, the officials with whom we spoke agreed with the Chief Administrative Judge that ASLBP administrative judges could perform many of these services.

For example, the Director, ADM, said that contested security cases for an applicant for a license, applicant for NRC employment, an NRC employee or consultant must be heard by someone other than an NRC employee.

However, ASLBP judges may serve as Hearing Examiner in those 10 CFR Part 10 cases involving contractor and licensee personnel and 10 CFR Part 11 cases for Special Nuclear Materials (SNM) Access Authorizations.

The Director, OP, noted that, other than Third-Party proceedings, OP has no objections to using the agency's administrative judges to resolve adverse actions and grievances for non-bargaining unit employees.

In fact, OP has used administrative judges as Hearing Officers to resolve various grievance appeal cases.

The Director, OP, indicated that at most there may be two personnel cases a year that will require a hearing.

The Director, OSDBUCR, stated that the ASLBP administrative judges could serve in the capacity as EEO officers.

Previously, OSDBUCR used a member of the ASLBP to handle a' difficult and sensitive case in the capacity of an EEO Officer.

The Director stated that OSDBUCR could also use administrative judges in ASLDP as EEO Counselors.

The Deputy Executive Director for Nuclear Materials safety, Safeguards, and Operations support is supportive of using ASLBP administrative judges as EEO Officers.

In addition, the Deputy Executive Director agreed that the ASLBP technical judges could be used in assisting the agency in resolving issues dealing with DPVs and DPos.

If a need to hold a formal hearing in the DPO process arises, depending on the issue, the Deputy Executive Director believes that the ASLBP could serve in that process.

12

There appear to be a number of opportunities for the agency to use ASLBP administrative judges as Hearing Officials during periods of low caseload activities.

If a Hearing Examiner is required, NRC should consider including ASLBP's administrative legal judges on the list of qualified attorneys to conduct 10 CFR Part 10 hearings on security clearance cases for contractor and licensee personnel, special nuclear material access authorization cases under 10 CFR Part 11 for licensee personnel, and personnel cases from non-bargaining unit employees.

ASLBP administrative legal judges should be considered in the EEO process as either EEO Counselors or EEO Officers.

If a formal hearing is needed in the DPV/DPO process, ASLBP administrative technical judges should be considered.

FORMAL OPERATING PROCEDURES The ASLBP does not have formal operating procedures which provide general guidelines on the conduct of adjudicatory cases and other ASLBP operations.

Operating procedures have been drafted by ASLBP officials bat have not been finalized.

Also, the ASLBP does have some Belletins that address various functions; however, J

these are not cor.solidated in an operating procedures manual and j

do not cover man:t facets of the office's functions.

i Formal operating procedures could address such things as how and when to announce events in the Federal Register; proper procedures for communicating with the parties to a proceeding;

)

the duties of the Board chairman and members; how to conduct hearings and limited appearance sessions; and general guidelines on the reporting requirements for Board decisions.

The procedures would also be an excellent source document to provide to new members to acquaint them with their functions and responsibilities.

This is especially true in light of the extent of potential turnover of Panel members over the next few years.

We recognize that the judges must be free to independently assess the merits of the cases they hear and reach decisions based on the record.

We believe formal operating procedures will enhance and not impede this requirement and at the same time provide greater assurance of management controls and consistency in operations when appropriate.

The judges are not evaluated, are not supervised, and are independent in the decision making process in accordance with the provisions of the Administrative Procedures Act.

We do not believe this independence eliminates the need for or prevents the establishment of sound internal controls, of which formal operating procedures are a part.

13

I CONCLUSION During our review, nothing came to our attention to cause us to believe that the present level of FTEs for ASLBP was not in concert with the present workload.

However, based on the delays in the filing of cases for FY 1990, the slippage in the schedule for the high-level waste repository and the uncertainty in the timing of the plant life extension cases, there is a need to reevaluate the projected workload for future periods.

The Chief Administrative Judge should assure that full-time l

judges are fully utilized prior to assigning cases to part-time judges.

An internal system should be developed that provides ASLBP management with a systematic way to measure the level of effort required by the cases and/or functions performed by the ASLBP.

~

We believe that the ASLBP should reconsider the need to continuously appoint all part-time judges to positions on the Panel particularly during periods or low case load activity and I

for those disciplines that are infrequently required for Board assignments.

Consideration should be given to hiring knowledgeable experts in those disciplines infrequently used as consultants or part-time judges appointed on a temporary basis for a specific case whenever the need arises.

The agency should consider using ASLBP judges to hold hearings in areas requiring a judicial background and in the EEO process as either EEO Counselors or EEO Officers.

ASLBP technical administrative judges should be included in the formal differing professional opinions hearing process.

There is a need to establish formal operating procedures to be used by the office i

instead of relying on the procedures themselves to be consistently applied without having any assurance that in fact they are.

1 RECOMMENDATIONS We recommend that the Chief Administrative Judge:

1.

Review the remaining years' estimate for the current five-year planning period in light of the current year's actual workload as compared to the original estimate and determine if j

l adjustments are needed in the estimates.

2.

Develop an internal reporting system which will show the amount of time each judge devoted to the cases and other work assigned to him during the current reporting period and also the amount of time he expects to devote to his cases and other work l

during the upcoming reporting period.

l l

l 14

I 3.

Periodically evaluate each technical discipline based on need for part-time members, available internal resources, continuity of technical services, future caseload requirements, and any cther factor in the decision-making process to determine whether part-time technical experts should be hired as consultants or administrative judges.

4.

Maintain a personnel register for technical disciplines and updated periodically as needed.

5.

Finalize and implement the formal operating procedures covering the conduct of adjudicatory cases as well as other functions performed by the ASLBP.

The actions taken by the Chief Administrative Judge on the above recommendations should be provided to the Commission, l

We recommend that the Executive Director for Operations (EDO) 1.

Consider the feasibility of using the ASLBP administrative judges, where applicable by law and regulation, in the formal hearing process for access authorization, i.e.,

security clearance under 10 CFR Part 10 and special nuclear materials i

access authorization cases under 10 CFR Part 11, adverse action and grievance cases for non-bargaining unit employees, EEO Counselors or EEO Officers, and the DPO process.

2.

Develop policies and procedures for referring cases to the ASLBP.

AGENCY COMMENTS On May 25, 1990, the Chief, Administrative Judge, ASLBP, commented on five of the seven recommendations contained in the draft report.

The Deputy Executive Director for Nuclear Materials safety, Safeguards and Operations Support commented on the two remaining recommendations on June 8, 1990.

Both officials agreed with the recommendations addressed to them, provided actions planned to implement the recommendations, and suggested changes to the draft report.

J We reviewed the changes to the draft report proposed by the officials and made those we deemed appropriate.

Also, we believe

'the actions planned satisfy the intent of the recommendations and will evaluate their implementation during our follow-up review of this audit.

The comments are included in full as Appendices V and VI.

I 15 i

{

l AirtNDjA 1 Page 1 of 3

+

l 4

MARCR 19, 1990 i

FANSL NINBERS I.

LAWTERS A.

hil fina (f)

(Average Aset SS) 1.

Seekhoofee 8.

Bleek 8.

Center 4.

Frre S.

Lase S.

Margulies f.

Salth B.

Part fina (6)

(Average Age 71)

I 1.

01essee 3.

Bert

.. (Retired from full time on 18/89) 3.

Miller (Retired from full time la 1986) 4.

Wenaer 5.

Wolfe

(, Retired from full time on 9/1/88)

II.

EN0!NBERS/PETSIC1870 i

A.

Full Time (3):

(Average Agot 64)

'l 1.

Lineaktger (Retire on er before 9/80/90) 3.

Shea 3.

Part Time (8)t 4

(Average Aset ft) 1.

Bright (Retired from full time 12/31/88) 8.

Callikan 8.

Ferguson 4.

E111 8.

Johnson 4.

Jordan f.

Luebke (Retired from full time 9/30/47) 8.

McCollua

Ah khh}A j Page 2 of 3, i

BWVIRONMENTAL/PUBLIC NBALTE:

l A.

Full Time ($)1 lAverase Aset 88) 1.

Carpenter l

8.

Cole 8.

Ellae (0eelosists Retire 8/81/90) 4.

Narbour 5.

Paris (Annielateraleolerosis) i 3.

Part Time (f)

(Averase Aset (64) 1.

Andersea 8.

Poster l

8.

Band 4.

Booper 5.

Laat 4.

Schink IV.

CRIMIST (1) l PUBLIC REALTE 1.

Steladler V.

300 NOM 18T (1) 1.

Elrk-Dussan VI.

MEDICAL DOCTOR (1)8 1.

Foreman P

TOTALS:

Full Timet (18)

Part Timot (88)

Judges Netriek (Physics) and M11he111a (Law) are part time Judges met ava!!able new because of oossulting NOTE:

work who any beoose available la the future for rehire.

.I l

~ " ' " "

n,.....,.

Page 3 of 3 STAFF Senior Technical Advisor:

Charles W. Relber C. Sebastion Aloot Legal Counsel!

Robert R. Pierce Senior Attorner:

81va W. Leias Director, PSAS Jack O. Whetstine Ass' t. Dir., PSA81 Secretary /Paralegalt Melissa Season Allene Coales Carolyn Boker JoFoe MoDow Florence Miller Doria Moras Patricia Wilder Management Informationt James cavanaugh i

Janos Nocutobia i

Espanolm Bushes TOTAL STAFFt il (Ratio of Staff to all Judgest 0.4 to i)

Esith Logan is on 130 day dotati from the Inspecter NOTBt General's office and is counted agalast our FTBs se a convenience to the 10 with the understandias that if the detail resulta la our exceedlag,our FT3e we will act be penalised.

Che Lu,: Sort Staf f :'ater's rmne was lef t off the list, l

he are M stsport staff r.enoers.

4 e

i e

d

l APPL @lk 11 i

Page 1 of 6 4

i j

4.

i Revision 1.

i e

i March 21, 1990 l

MEMORANDUM FOR:

Ren Kelley' FROM:

B. Paul Cetter, Jr.

i Chief Administrative Judge, ASLBP SUBJBCT!

ASLSP STAFFING 00W8tDERATIONS i

l l

S.

Age With respect to age, the Panel needs to recruit new judges l

for the '90s beause, in the next three to five years, 385 to 405 et our 14 full time judges and to to 905 of our 32 part time judges will retire.

The average age of the full time judges is N and the average age of the part time judges is 70.

See Attaohnent A.

To expedite the 'when needed" hiring procese, I have finally convinced Personnel to establish Segisters to which we can recruit and asalga quellfied candidates who can then be r

l nominated to the Panel when an opening arises -- without the need to soar up a national reoruiting effort each time.

I J

expect the first wave of applicants to be qualified and 1

sostaaed to the appropriate Register by the end of the year.

l.

(Set see I.C.S., below).

It will then be poselble to send nominees iron the appropriate Register to the Commission as the need arises.

i 4.

Erportise i

With respect to expertise, it is essential to have full time judges with expertise in technical areas such as physios, l

geology and engineering.

At the end of this sonth, we will lose our only full time Geologist, and some ties in the nest i

three to six months, we will lose our only full time '/hysicist.

Soth must be replaced immediately, particularly in 14sht of the

. length of time it takes a new technical seaber to 1 sara to function in an adjudicatory role.

We are unable to rely on l

e

~~^-

..m..

.,,_.m..

APH A'slA 11 Page 2 of 6

(

s part time judges being able to serve on the larger, comples cases because of their other comattaents.

S.

FULL TINE JUDOBS This is to supplement last Friday's conversation about how many cases a judge can handle.

I believe we identified five factors bearing on the answere vis.:

1.

N'5sther the judge is Legal, i.e. a Board Chairana (and ther >J$re has the heavy burden of case management), or Techrswal; t.

Whether the judge is part time (availability limited by duties of principal occupation) or full time; 3.

Whether the case is:

ext remely complex (e.g. - heavily contested by a,multiple parties like Seabrook);-

b.

complex (e.g. construction permit, operattag license, decosissioning, plant life extension, etc.);

or simple (e.g. asterials license, some enforcement o.

cases, etc.).

NOTE: Unfortuna'tely, even this breakdown can be misleading because even simple cases occasionally have novel or difficult issues that are time intensive to decide; 4.

Whether the panel has enough full time judges in essential soientific disciplines (e.g. ourrent needs include physicists and earth soiences); and 5.

The panel's case work cannot tMs deferred.

In short, the answer is "it depends."

Unfortunately, all these variables do not land themselves to a rigid arithmetical formula for matching tasks to FTBs.

Most interesting to me is the fact that despite all the variables involved in matching FTBs to projected cases, all ASLBP FTB projections for at least the last five years have been consistently at or below the y -

actual usage for the year.

Our projections are a joint effort, and 1 ascribe our forecast accuracy to the peculiar expertise the panel possesses in assessing the many variables involved.

w

~ e o.. e 4.

Page 3 of 6 i

In discussing the appropriate casclu,d per judge,1 pointed out the need to have a certain amount of what otherwise alght be viewed as " dead tino" on each judge's part because of the high cost of delay in major nuclear facilities.

The cost of delay has been estimated to range f rom a sintaus of $400,000 up to

$1,000,000 for each day a reactor is not operating.

Regardless of whether the ultimate Board decision is favorable or unfavorable, license applicants need as prompt a decision as possible, either to begin to operate the facility or to begia corrective actions promptly.

If such costs are to be avoided, judges aust be available to act and cannet be tied up on another case when action in a major facility case needs to be taken.

However, the tera'" dead time" is aisleading because esob 1

Judge has other adjudicatory and non-adjudicatory work.

The other adjudicatory work category includes peer review (on request) of other judge's draf t decisions or portions thereof and consulting with other judges seeking advice on a specifio legal or technical matter.

Non-adjudicatory work includes a heavy reading load to keep current on developments in legal and technical disotylinesi working on ASLBP committees or projects (e.g. the ASLRP computer Users Group, the Panel Executive committee, the Library Committee, LSS advisory committees, etc. ); and researching, drafting, editing or consulting with me whenever I take a position in writing for the Panel on a proposed KRC, DOB, or BPA rule or some,other aspect of the Panel's work (Because of the judges' seniority and considerable expertise, I const ~

no or more of them on virtually everything !

issue).

C.

PART TIME JUDOB8 1.

Source and Nature i' a s - 1e1 judges are Special Government Bayloyees pere.e4.*y a de cnment functioni they are not consultants.

Mos s. a: er W they provide NRC with a senior, experienced t.

s v y.".tist at miniaua cost.

In my judgement, a minimum cadre.'

of 25 part sine Pausi judges is required.

Moet part.tist judges are recruited from National Laborato.'ies and universities.

They are senior, national experts is their respective fields.

For example, at least three current part time seabers were heads-of departments at three major universities.

However, because of obligations to their principal occupations, the availability of all but those

- - - - - _. -_-- - -. -.-.--- - -~_ - - -.-.

APPENDIX 11 Page 4 of 6' 4

part time judges who hsve now retired is limited.

Nevertheless, ther represent an invaluable, irreplaceable, and immediately available resource of senior-expertise to serve on Licensing Boards.

2.

Limitations part tise seabers of the requisite seniority and expertise are hard

>,6 get because:

(1) as a condition of employment, they gug),'agrs, not to do any consulting with nuclear todustry entitAea[

end, (2) academic salaries have caught up with and passed CoJernment salarier in the past to years.

Since nuclear industry consulting is the principal source of supplemental ineone for academics, many qualified experts are not willing to serve as part time panel Members, and some have resigned for this reason in the past.

The most we can p y them is $37.47 per hour when they can set up to $300 per hour as consultants.

Our current effort to establish Registers of potential part time panel Members will give us a reading on the-effect of

(.

relatively lower Government salaries.

3.

Support The panel's current 22 part time members receive year l

round support from the panel's fu111 time staff.

Support i

includes mail (both for assigned cases and regulatory and technical materials), typing, legal research, travel arrangements and vouchers, library satorials, computer support, and a variety of miscella.neous matters.

See Attachment B.

In l

the Seabrook case we were able to use a retired part time seaber who required the loan of a compaq computer and the attendant support.

The Seabrook example will be typical in the future.

l e

l l

AF PLNDI A 11 Page 5 of 6 March 28, 1990 MEMORANDUM FOR:

Ron Kelley /

Ed Gillen /

8. Paul Cotter, Jrq FROM:

Chief Administrativb Judge, ASLBP SUPPLEMENT To ASLSP STAFFING CONSIDERATIONS

SUBJECT:

MEMO (dated 3/21/90)

Subject meno was a bit hurriedly done and in reviewing it They concera an I.found two points that warrant supplementing.

additional judicial staffing factor, emergency considerations, and the ratio of'ASLBP' staff to professionais.

1.

Additional Judicial Staffing Factor

'In determining the appropriate number of Panel judges, an some additional factor (Mono, page 3) aust be considered.-

allowance aust be made for emergency staffing (I was reminded-of that need by this week's station blackout event at Vogtle).

By emergency staf fing allowance, I mean the need to maintain a level of judicial staffing that would enable ASLSP to respond When the to an emergency proceeding like Three Mile Island.

socident ocurred, the majority of Commission resources were and ASLSP was required to make immediately turned to the event, available three judges, a law clerk, a Panel Technician, and a secretary full time out of the office in Earrisburg, as well as periodio support staff in the office before, during, and after the hearing.

Additional judicial support was required at-We were required to find space and various stages-of the case.

ASLDP had build a large court room in Harrisburg from scratch.

no choice in the matter, i.e. handling the TMI case on an One result was the subsequent hiring of a emergency basis.

half dosen judges to deal with both the balance of the workiond that had been preempted and the flood of litigation that the TMI accident generated.

Accordingly, a sixth

emergency staffing allowance" factor is necessary if ASLBP is to be capable of responding.on a moment's notice as required by an emergency such as the THI At our current reduced judicial staf fing, such a proceeding.

case could easily _ and lamediately absorb 30 to 40% of our t,

Quantifying such a factor is nearly tapossible, but it staff.

may be that an allowance of one or two judges over the absolute minimum that the ASLBP workload forecast projects could satisfy l

the need.

l~

l-l

N t LN A A il Page 6 of 6,

2.

Support Staff Ratio

]

The seso also say have been misleading as to the Panel's position on the rationale underlying the appropriate number of support staff for ASLBp.

The meno stated at page S that' For all these reasons ASLSP requires a support-staf f-to judge ratio of 1.8 to 1.

Even that is a minimal ratio that, if nothing else, stands as a credit to the dedicated people who perform so effectively such a wide range of services for the Licensing panel and other Commission offices.

The " ratio of 1.2 to 1" describes the ratio of full time Judmes to suonort staff.

That ratio should not be contro111am and is 1

misleadina.

L As stated elsewhere in subject meno, the ASLBp support i

staff also serves: (1) the 22 part time judges for all purposes (lika the full time judges, general support services are required whether or not the part time judge is actively working on a case); (t) the four members of the Appeal Board (maintaining the Library, some computer training, and uploading l

and full text indexing of Appeal Board decisions into INGUIRE);

(3) the office of the Secretary (document indexias and computer support); (4) the Of fice of General Counsel med Commissioner's offices (training in the use of INGUIRE); (5).the office of the Licensing Support System Administrator-(aaintaining the Library and providing some lialted computer support); and (8) all Commission offices in contract formation and administration for the agency Court Reporting Contract.

In addition the meno did p

I not recognise any additional support that would be needed should cases now sent out of the agency be assigned to AgLBp.

It is difficult to quantify the work in items (2) through (8) above as a ratio despite the substantial nature of the services rendered.

Consequently,.It seems to me more accurate l

to state the support staff ratio in terms of total panel judges.

Thus, at the current low of 38 judges, the ratio is 0.44 to 1 for a support staff of 18.

That statement gives recognition to the direct services furnished other Commission offices.

~

In any event, it seems to me undisputable that the ASLBP Support Staff is called upon to furnish a wider variety of services to more people-than the support staff of any other NRC office.

p.S.

Three cases sitting in SECY for a couple of weeks just in thereby improving our FY1990 case load forecast.

came W

r

~ ~

e

l' APPE;wsA a s s-Page 1 of 8

~

u k

i Revision 1.

March 21, 1990 MEMORANDUM FOR:

Ren Kelley F20M:

B. Paul Cotter, Jr.

Chief Administrative Judge, ASLSP SUBJBCT:

ASLBP STAFFING CONSIDRBATION8 9

II.

SUPPORT STAFF A.

Overview ASLBP support staff requirements differ from other NBC offices because of the nature of the work and the principle of

separation of functions."

In sanaging, hearing,-and deciding a complex case, a Licensing Board must manage a small army of parties, attorneys, and filings.

But the judge aust remain at arm's length from the parties, particularly the NRC Staff.

. A typical judge in a court system is supported by: (1) a secretary for filing, telephone, correspondence, orders and decisions; (2) one or two law clerks for legal research and draf ting oders and opinions; (3) a court room clerk for

n......

Page 2 of 8

)

j 1

J c-i handling court room administration during motions arguments, prehearings, and triali and (4) a bailiff for keeping order in Supporting those judges in general is a I

the court room.

docketing and filing staff under the clerk of the court.

Historically, ASLBp had handled those functions by j

assigning one secretary / paralegal to every two judges; assigning one law clerk to every 3 or 4 judges, and combining the court room clerk and bailiff functions in two panel Technicians who traveled to the hearing before and with the i

1 judges to manage the court room set up (tables, alcrophones, etc. ) and operation.

In addition ASLBp had two senior technical assistants to support the technical judges (senior positions occupied by Ph.Ds.).

Because of drastic FTE cuts since 1983, most of those support staff positions have been lost, and the secretarial staff has been cut to one secretary for every three judges.

Since 1983, 16 support positions have been either lef t vacant or eliminated, namely: two senior technical assistants, four law clerks, two panel Technicians, one law librarian, and seven or eight secretary /paralegals.

The work they performed has simply been spread over those that remain.

In short, today,-

ASLBp has less support than any other comparable Government adjudicatory body.

NRC seems content to have senior Government of ficials perform clerical functions.

We try to make do as best we can.

For example, the Director of the progras 8,upport and Analysis 8taff personally managed the building of a court room in the New Hampshire Legislature for the Seabrook case.

When the Seabrook' board was writing its decisions, it required 6 or 7 FTs's for a period of at least six months which were " borrowed" from elsewhere in the office.

B.

Sedretarial/ paralegal This 8taff performs on important function for the entire NRC (excluding the Commissioners).

ASLBp contracts for and manages the court reporting contract which has run as high as

$800,000.00 per year.

See Attachment B.

Our remaining secretarial / paralegal staff performs the following office and hearing support functions:'

Typing correspondence; office memoranda; and multiple 1.drafts of case memoranda, orders, and partial and final initial decisions (which range up to 1,000 pages) r.

dr r t iwl A All Page 3 of 8 a.

For the full time judges to whom she is assigned; b.

For the part time judges serving on a case with a full time Board chairman; and c.

For part time Board chairmen.

2.

Filing, including three judges' working office files for each case, correspondence, rules and regulations; 3.

-Travel arrangements for hearings and training and post travel vouchers; 4.

Hearing room arrangements including court reporter, microphones, and special case needs (e.g. a telephone line for extended cases);

5.

Paralegal services; 6.

NRC Court reporting contract; and 7.

Telephone services to the judges, counsel in proceedings, other Government officials, the media, and the public.

Our secretarial / paralegal staff of seven is at a bare bones minimum in light of the extended range of their duties in serving 14 full time and 22 part time judges.

C. Prograa S'upport and Analysis Staff As noted above, this staff of six people perfo'ese a range of services that other NRC offices get from IRM.

They manage the Panel's Docket; furnish all office support (including mail, messenger-service, supplies, equipment and furnishings, ADP, I

etc.); hearings and meetings support; Library maintenance; training; and INQUIRE.

SUBJECT:

Pursuant to our conversation, below is a list of They are few in number, but each one subject hearings. referred outside NRC represents a drain on NRC resources and J

All a failure to use the A8LBP resource already in place.

are cases that should not interfere with even a heavy NRC licensing docket.

There are three types of cases here (1) cases sent (2) cases heard inside NRC but not by our outside NRC; Judges; and (3) cases where hearings are not presently held but should be.

In some types of cases, no hearings have been held to date.

However, all these cases represent a practice on NRC's part of referring cases outside the agency when they could be easily handled inside the agency by

(

ASLBF, which has the requisite expertise to hear all of them, or simply not using ASLBP Judges.

I.

CASES SENT OUTSIDE NRC A.

security clearance or Access Authorization 10 C.F.R.

l' Part 10 (1989).

OGC reports one hearing during calendar 1.

ELC.

The Division of Security reports the last years 1987-89. case to have taken place in FY 1986 and the previous case in In the 1986 case, the Hearing Examiner was Andrew FY 1983.

Goodhope, formerly of ASLBP.

These hearing functions could easily be assumed by the ASLBP whose legal Judges (each with a class "Q" access authorization) are well qualified to serve as Hearing ll Examiners.

They are f amiliar with the NRC, with licensing procedures, and with proceedings where the protection of i

various types of restricted or privileged information is t

L

APPEhDIA IV Page 2 of f 2-important.

At least one ASLBP nenber (Judge Bechhoefer) has specifically had experience in dealing with these types of cases as an advisor to the AEC Division of Security during the late 1960s).

Finally, where hearings are held, they must be conducted in a low-key manner notwithstanding potentially high-profile facts; ASLBP Judges have extensive experience in these types of situations.

Under current rules, uno employee or consultant of the NRC shall serve as Hearing Examiner hearing the case of an employee (including a consultant) or applicant for employment with the NRC.'

This provision would either have to be modified or interpreted as not-precluding an ASLBP member from hearing the case of an NRC employee.

In that connection, however, NRC's Manual (Chapter 0106-021) defines ASLBP Judges as ' Members' as distinguished from ' employees,e possibly because of the judges' independence under the Administrative Procedure Act.

2.

DQE.

ASLBP could also hear security cases for the Department of Enern, which has recently been criticised by GAo for using a private contractor (Maxima Corporation) to provide " personnel security review examiners

for this purpose.

Saa Energy Daily, January 22, 1990.

doe's security regulations are similar in many respects to those of NRC; both were initially derived from the AEC security regulations.

B.

Snecial Nuclear Materials (SNM) Access Authorisation -

i 10 C. F.R. Part 11 (1989).

The access involved applies to certain employees, contractors, consultants of, and applicants for employment with, licensees or contractors of the NRC (10 C.F.R. $

11.3).

The requiresents are in addition to those governing access to classified SNN, as to which Part 10 applies.

Hearings are similar to those for security access authorisations and are conducted by Hearing Examiners, as provided by 10 C.F.R. $ 10.26 (incorporated by reference by 10 C.F.R. $ 11.21).

There have as yet been no hearings under the program which commenced in 1985.

C.

Personnel Hearinas (Adverse Actions and Crievances).

1.

Adverse action hearings are conducted by Appeal Examiners, as provided by NRC Manual Appendix 4156, Part II.D.2.

Grievance hearigs are conducted by Grievance Review Examiners, as provided by NRC Manual Appendix 4157, I.6.

Af f L -te t A 4.

Page 3 of 6 3

OGC reports that there have been two hearings involving grievances arising under the NRC grievance procedures during and one adverse action hearing involving a i

the past 3 years,it employee.

The office of Personnel non-bargaining un confirms these general figures and estimates an average of about one case annually for these types of hearings.

2.

Other personnel hearings use triers of fact not selected (or at least not unilaterally selected) by NRC.

significant adverse personnel actions against NRC employees who are veterans are heard before Judges of the Merit systems Protection Board, squal saployment Opportunity complaints are heard before the squal Raployment opportunity Commission (Ata iten D, below.).

3.

Arbitration Hearinas.

Arbitration hearings arising under the collective bargaining agreement between NRC and its employee union.

As is the case in other Federal agencies, the agreement requires arbitration hearings to be held before an arbitrator selected bilaterally by the Union and NRC from a list of arbitrators (who have substantial labor experience) provided by the Federal Mediation and conciliation service (FMCs).

Costs are shared equally by the NRC and the Union.

00C states that, 'Although there is no legal bar to using an NRC administrative judge as an arbitrator in these cases, the NRC cannot unilaterally direct that this be done."

OGC adds that *We consider it highly unlikely that the Union would agree to appointing an NRC employee, albeit an AJ, to serve as arbitrator in a labor dispute.'

Several ASLBP Judges have direct experience in NRC personnel-type cases and all legal Judges are competent to hear such cases.

D.

EEQC - 42 U.S.C. $ 2000e-16; 29 C.F.R. $$ 1613.218-

.219.

Hearings on complaints of discrimination in employment may be conducted either under negotiated grievance procedures (by agencies) (agg above) or before an Equal Opportunity Commission AJ.

Egg 42 U.S.C. $ 2000e-16; 29 C. F.R. $$ 1613. 218 and 1613. 219.

Where the grievance procedures are used, ASLBP Judges could serve as Grievance Review Examiners.

Indeed, the expertise of ASLBP Judges may be more comparable to that of the EBOC Administrative Judges than is the expertise of Examiners that Personnel any now utilize.

Ar, h A h Page 4 of,6

contract Discutes - The Contract Disputes Act of 1978, E.

14 U.S.C. $ 601, 3.t agg.

By interagency agreement dated September 22, 1981, the NRC contracted with the GSA Board of Contract Appeals for services to settle disputes arising under contracts issued Apparently only one such dispute went to hearing--

by NRC.

that involving TERA corp., NRC's contractor for the now-Another contract replaced Document control System (DCS).

dispute, involving ACE Federal Reporters, never quite developed into a contract appeal--and in any event, the ASLBP would likely have been disqualified from hearing that dispute-(involving, intag glia, reporting for ASLBP (One category of disputes, procurement award proceedings).

)

protests, must be filed with either GAO or the G8A Board of Contract Appeals.

Obviously, such cases can not be referre.$.

1 l

to ASLBP.)

The ASLBP has the expertise to reestablish a Board of i

Contract Appeals (like the one under ABC, NRC's predecessor) to consider contract-dispute cases.

Chief Judge Cotter formerly served as the Chief Judge of the NUD Board of Contract Appeals.

i l

Differina Professional Views (DPV) er Oelnions (DPol, l

F.

NRC has a procedure for employees to request an

" independent, outside, qualified review" of technical issues as to which there is a difference of agency views or The DFV and DP0 process does not currently opinions.

involve hearings--under the formal procedures, Office Directors and Regional Administrators appoint a-Standing Review Panel for differing professional views within their respective Offices or Regions, with final resolution by the Executive Director for Operations (EDO) or the Commission.

NRC Manual Chapter 4125.

ASLBP Judges could be designated for the Standing Review Panel.under the existing procedure (with final resolution, where necessary, by the Commission).

In that connection, the DP0 procedures provide that 'The EDO or Commission has the option to use other qualified sources inside and outside NRC to assist in reviewing the issue" (NRC Appendix 4125, C.5).

N'AC regards the DFV or DP0 process as a collegial method for resolving technical disputes and that process would be followed by ASLBP Judges, who, in addition to their APA independence, would not be involved in the mission function underlying such disputes.

Most important,-ASLBP technical Judges are among the most senior in their respective fields with national (some international) reputations.

t v

v-

APPENDIX IV Page 5 of 6 G.

Informal Rulemakina.

The AEC used three-member boards to conduct several well-known legislative hearings.

A single Panel member was used to build the record for the commission's " Waste Confidence" proceeding.

Of many possibilities, two come immediately to aind.

Emercenev Plannina.- If the Commission were seriously to consider modifying the emergeng planning requirements (perhaps based on source-tera considerations), and 12 it wanted to mitigate the potential adverse public criticism which might attend an internally-generated modification of those rules, it might be fruitful for it to authorise a public oral-hearing, conducted by an independent board drawn from ASLBP acabers, to produce recommendations for rule changes.

Final action would, of course, remain with the Commission itself.

Hiah hval Waste.

ASLBP-conducted informal rulemaking hearings might also be used in the high-level waste program.

A number of rule makings are under consideration.

ASLBP could of fer the Commission an indexed, structured electronic record, which would be particularly useful in NLN technical areas, inasmuch as the ultimate storage of records would be in the LSS.

The cost of such hearings would be borne by the HLW fund.

II.

CASES NOT HEARD 8Y ASLBP A.

Freedom of Information Act Anneals.

These cases are referred to the Secretary to decide.

He is not a lawyer.

B.

Reconsideration of Tort claima Act Denials.

10 C.F.R.

$ 14.39.

These are rare.

GPU filed a $16 million claim after the TMI accident.

III.

CASES NOT HEARD Fitness for Duty - 10 C.F.R. Part 26 (1989).

In teras of the individuals to whom the program is applicable, the fitness-for-duty progran parallels the SNM access authorization program.

Current regulations require licensees to establish a fitness-for-duty program and to establish a procedure for licensee and (with certain l

u

Ah dw1A 4i c

Page 6 of.6 i

. exceptions) contractor or vendor employees to appeal a positive alcohol or drug determination.

10 C.F.R. $ 26.28.

There is currently no involvement of NRC in these appeals.

This sight be. an area in which NRC should become involved (comparable to security clearances or SNM access authorizations for licensee or contractor employees).

e e

e Judges Bechhoefer and Frye and Mr. Aloot can answer any questions you may have about the foregoing.

l l

4 I

l

_ - ~

APPENDIX V Page 1 of 14

- jac C84 \\.

UNITED 8TATES 9

t NUCLEAR REGULATORY COMMISSION 5

ATOMIC SAFETY AND LICENSING DOARD PANEL W ASHINGTON, D.C,20666 e..**

May 25, 1990 MEMORANDUM FOR:

Richard Donovan Acting Assistant Inspector kneral for Audits n

Office of the Inspe r

c 1

}

FROM:

B. Paul cotter, Jr.

Chief Administrativt udge

SUBJECT:

RESPONSE TO DRAFT REPORT ON REVIEW OF THE ATOMIC SAFETY AND-' LICENSING BOARD PANEL This is in response to your memorandum of May 8, 1990 requesting comments on the draft Report setting out the results of your recently completed review of the activities of the Atomic Safety and Licensing Board Panel (ASLBP).

On May 14, due to the press of other commitments, you gave us an extension to May 25, 1990 for submitting our comments.

I.

Report Overall, I bel bve the draft Report (" Draft") paints a generally ace' rate picture of the activities and needs of the ASLBP dr. ring.the limited period of review.

I also find the draf t 'seport appropriately tempered in most areas by an explicit recognition of the difficulty.of precisely forecasting future judicial resource needs.

However, several of the Report's statements or findings, particularly L

in the area of caseload projections beyond FY 1993, require clarification or specific response.

l 1

A.

Caseload 1.

Reauired hearinas (c. 6).

The. introduction to the Findings section of the draft Report states that l

l -

(A)1though some hearings are required by law, at the present time, the ASLBP has no active cases where a hearing was required by law.

1 n

l

1 APPENDIX V Page *2 of 14 This statement is in error.

All ASLBP hearings are of three types:

(1) those specifically required by statute; (2) those required by implementing regulations under statute; and (3) those required by the Commission in exercise of statutorily granted discretion (there is only one such proceeding on the docket at this time).

Thus, Section 189 (a) of the Atomic Energy Act, 42 U.S.C.

5 2239, requires

-(1) hearing in connection with all applications for power reactor construction permits; and (2) an opportunity for hearing in connection with power reactor 4

operating licenses.

The distinction between a mandated hearing and a mandated opportunity for hearing does not lead to the quoted conclusion.

Consequently, all hearings conducted by the ASLBP are required by law.

The quoted sentence should be revised to read:

"All ASLBP hearings are required by law."

2.

chancina Caseload fo. 71.

In the same section of the draft Report, mention is made of the changing nature of the l

Panel's adjudicatory caseload.

Based on this change, the Report concludes in part that (T]his change may necessitate a fundamental redefinition of the functions of the Panel...

The use of this language is, in my view, imprecise and misleading.

The fundamental purpose of the ASLBP is to adjudicate.

That function remains constant regardless of the particular type of cases on the Panel's docket.

What will change,-of course, is the type and complexity of the legal and technical issues that will routinely confront a Licensing Board, and, in some cases, the procedural rules that will govern the proceeding.

To the extent the draft Report intended this latter point, I concur.

However, to avoid any possible ambiguity, I recommend that the language quoted above be stricken and replaced with the following:

This change will likely result in a significant shift in the nature and complexity of the legal and technical issues placed before the Panel...

l 3.

FY 1990 Caseload (D.

9).

In the section of the draft Report styled " Workload Forecasts", the Report concludes that

... it appears unlikely at the present time that the caseload forecasted by ASLBP for FY 1990 will be received. l l

APPENDIX V Page 3 of 14 That conclusion is in part based on the average number of new case filings per quarter over the last nine years.

While it appears at.this juncture that the ASLBP FY 1990 workload forecast may be less than originally projected (15 of.our current projection of 23 (originally 28) new cases have been filed), I believe reference to the average generic filings per quarter is misleading.

We have also found that in the last two years 30% of our new cases were filed in the last quarter.

First, as the draft Report itself concludes elsewhere, the nature of the cases that will be filed during the next four years will be significantly different from those filed over the last nine years.

Thus, past generic average filing rates may have little predictive value in assessing future judicial requirements.

Indeed,-in developing our five year workload forecast, the Panel rejected a similar use of generic filing rates in favor of historical averages for snecific tvoes of cases likely to occur durina the forecast neriod (e.g., license amendments, enforcement proceedings, operator license proceedings, etc.)

See Attachment A,. FY 1990= Workload Forecast (Rev.-4).

t l

Second, workload forecasts are comprised of two elements:

[

(1) number of cases; and (2) timing of cases.

As the draft-l Report notes at the bottom of page 9, the actual FY 1990 ASLBP workload may be less than originally projected in part due to delavs in the filing of reasonably expected cases.

This-suggests that while the estimated timing of projected cases over the next five years requires finetuning, the number of projected cases over that period continues to be a reasonable planning basis.

Consequently, the actual' judicial caseload for the outyears (FY 1992-1994) of the ASLDP lorecast may, in fact, be greater than now projected.

(

4.

" Workload" reduction fo. 10).

In the third sentence of the introductory paragraph to the section styled l

" Utilization of ASLBP Members and Staff", the draft Report notes that the ASLBP has had "a 31 percent reduction in the workload" over the last three years.

Because that figure is based'on number of cases even though each: case presents different resource requirements, a-reduction in the number I

of cases does not necessarily translate into a reduction in l

overall workload.

For this reason, I recommend that the i

quoted phrase be amended to read "a 31 percent reduction in the number of cases".

l l

s APPENDIX V Page *4 of 14 c

B.

Staffing 1.

Judicial PTE Forecast (n.

15).,

In the section styled "Use of Full-Time. Members", the draft Report concludes that 14 judicial FTE's

... appears appropriate to handle the present and l

forecasted workload.

We do not believe the need for a i

future increase in the judicial FTE's has been adequately justified.

I am troubled by this conclusion for three reasons.

First, this conclusion,does not appear to take into account the potential impact noted above of case filings originally expected in FY 1990-1991 but now delayed until the FY 1992-1994 period.

Second, the unqualified language of this 1

conclusion appears based on a calculation of precise judicial resource needs notwithstanding the draft Report's j

explicit recognition elsewhere of the difficulty in predicting future needs during a perled of adjudicatory transition.. Third, this conclusion, at least as it applies to potential judicial resources needs beginning in FY 1993 and beyond, is inconsistent with information indicating that the Panel will begin to see increasing numbers of cases in the license renewal, standardir.ed design, and renewed plant construction-areas around this time.

In fact our current Workload Forecast predicts the need for 22 to 25 judges during the period FY'1991-1994.

However, I am not pressing for anything.beyond 14 full-time judges at this time becaase of the contingencies already discussed.

Egg, Attachment A.

In my view, the draft Report should make clear that its conclusion regarding the minimum number of judicial FTE's is limited to the reasonably foreseeable ASLBP caseload over the next two years.

The earlier ASLBP Forecast given your office documents a projection of increased FTE needs in 1992 and beyond.

Consequently, I recommend that the second t

L sentence of the passage quoted above be replaced with the following:

The difficulty in identifying with any precision the timing.and issues of major cases expected to.be filed with the ASLBP makes any recommendation regarding minimus judicial FTE's for FY 1993'and beyond problematic.

2.

Part-Time Members (n. 16).

In the section styled "Use of Part-Time Members", the draft Report indicates that six of seven part-time Panel members who had not been assigned

APPENDIX V Page 5 of 14 to any proceedings during FY 1987 to FY 1989 had attended at least one annual Panel meeting during the-last three years at a cost to the agency of $3800 in FY 1989, $4183 in FY 1988 and $3250 in FY 1987.

I believe this expense (averaging less than $700 per part-time member at its highest) to be a small annual cost for maintaining both the expertise and availability of the nationally known experts who serve the Commission as special Government employees.

Three of the seven currently serve on FY 1990 cases, a fourth is an economist expected to serve on an antitrust case shortly, and all either speak or contribute their expertise at the annual meetings they attend.

More importantly, as the draft Report appears to accept as one of its underlying premises, some period of training is necessary to convert-an otherwise highly trained technical judge into a full participant in the type of legal hearings' conducted by the Panel.

Of equal importance to i

this " pre-hearing" training is an on-going program of continuing education on the new policies, technical and legal issues and statutory and regulatory initiatives affecting the Commission's adjudicatory process.

I firmly believe that every member of the ASLBP, whether full-time or part-time, must remain current on developments in.the i

technical and legal issues affecting the Commission's l

licensing process.

The Panel's annual training meeting has traditionally been the primary vehicle for post-employment training.- Annual meeting training for all Panel members is

'now a Commission requirement resultant from NUREG-0548 which-the Commission sent to Congress over ten years ago as a statement of its program.

See NUREG-0548 at p. 45.

3.

-Tvocarachical' error ( n.' 17).

The last sentence states that "... a list of three qualified candidates...

L Chairman Zech's August 18, 1980 memo specified "... at least two candidates...

l 4.

"Temocrary" Judicial Accointments (no. 18-19).

In the same section, the draft Report recommends that the ASLBp I

consider using temporary judicial appointments to satisfy short-term judicial needs from infrequently required I

technical disciplines.

Specifically, the Report recommends that the Panel

... select candidates from the part-time register by discipline and appoint the judges to temporary positions either for a specified period of time or i

l' to a specific case.

Once the case is concluded, the' appointment would be terminated.

APPENDIX V Page 6 of 14 Draft at pkge 18.

For the reasons set out below, I believe l

that the disadvantages of the recommendation far outweigh its advantages.

L First, the identification and selection of individuals for l-appointment to the ASLBP is, for good reason, a time-l consuming process.

Because individual-judges stand in the L

shoes of the Commission itself, appointments to the ASLBP must be made by the Commission.

A process which requires case-specific temporary appointments could result in adjudicatory delays to accommodate the appointment and clearance process.

Second, appointment as a part-time I

member to the ASLBP subjects the member to strict ethics and l

conflict provisions which significantly limit his or her ability to engage in other work in the nuclear or related industry.

In my view, the temporary appointment L

recommendation would reduce the number of highly-qualified technical experts available fce use by the ASLBP, and, as to those that remain, impose significant paperwork burdens necessary to assess potential ethics and conflict problems created by employment / contract activities during periods of non-appointment.

Third, the temporary appointment recommendation would eliminate any reasonable possibility of providing " pre-hearing" training to new technical judges, thereby affecting the historical quality of the Commission's licensing adjudications.

Fourth, reliance on a series of temporary appointments runs the risk of becoming, as a practical matter, a system of adjudications by contractors.

The Department of Energy was recently criticized for employing a similar adjudicatory process in the security area.

For these reasons, I believe the existing program of renewable part-time appointments to the ASLBP represents the l

best and least costly approach to satisfying.the temporary judicial resource needs of the Commission.

II.

Recommendations The draft Report concludes with savon recommendations.

Two of those recommendations are directed.to the Executive Director for Operations and' recommend increased utilization of the ASLBP by the agency for non-licensing adjudications.

We would add contract disputes, FOIA appeals, reconsideration of Tort Claims Act denials, and fitness for duty appeals to the lisc of matters the Panel could hear that now are handled elsewhere.

I address each of the five recommendations directed to the ASLBP below.

1 f

l-

APPENDIX V Page 7 of 14 1.

Review the remaininc vaars' estimate for the current five-vaar clannina neriod in licht of the current vaar's actual workload as ccanared to the criainal estimate and determina if gdjustments are needed in the estimates.

I concur in the need to continuously monitor workload estimates as a mechanism to project future resource needs of the Panol.

The ASLBP has a general policy-of holding a bi-weekly meeting of its management / supervisory officials to address matters affecting the work of the Panel.

Since the development of the current workload forecast in September of 1989, the major focus of some those meetings has been to finetune the workload forecast in light of actual case filings and new information regarding potential cases or regulatory initiatives by the commission.

Our computerized FY 1989 Workload Forecast is now in its fourth revision.

Ees, Attachment A.

Consistent with this recommendation and the pre-existing intent of the Panel, we will continue to 4

identify, when appropriate, adjustments to the workload i

s forecast as a topic for our bi-weekly management meetings.

2.

Qgyglon an internal recortina system which will show the amount of time each iudae devoted to the cases and other ggrk assioned to him durina the current renortina neriod and also the amount-of time he ernects to devote to his cases and other work durjna the uncomina renortino neriod.

ASLBP management will develop a reporting system for periodically monitoring the general workload requirements of individual judges.

3.

Periodically evaluate each technical discioline based on need for nart-time members, available internal resources, continuity of technical services, future case load reauirements, and any other factor in the decision-makino crocess to determine whether nart-time technical ernerts should be hired as consultants or administrative iudoes.

-While=no formal written policy or procedure exists explicitly tracking this recommendation, ASLBP management already implements the substance of this recommendation in the context of periodically assessing potential future needs for part-time technical judges and in assigning such part -

time judges to particular proceedings.

For example, in determining the ASLBP's near-term judicial needs, the ASLBP t

determined a need for technical judges with expertise in the earth sciences based on a five-year workload forecast indicating increasing numbers of decommissioning, decontamination and land-based waste storage proceedings.

Similar need for a medical doctor and a physicist has been identified.

This resource "needs assessment" process will continue as an element in the management of the Panel.

l' l-

_7-l

APPENDIX V Page 8 of 14 4.

Maintain a norsonnel racister fer technical disciolines god undate it meriodically as needed.

I concur.

As a result of efforts on the part of the Panel first initiated two years ago, the agency recently began a formal recruitment program designed to identify potential candidates for appointment to the ASLBP.

Under-this ASIBP-developed program, the educational and experiential background and writing skills of persons interested in possible future full-time and part-time appointments to the ASLBP will be reviewed by a three member panel of ASLBP and OGC representatives.

Those found qualified will then be placed on an ASLBP register.

When new or_ replacement positions on the ASLBP are authorized, at least two candidates from the register will be forwarded to the Commission for its review and selection.

5.

Finalir; and imolement the formal ooeratino crocedures coverina the conduct of adiudicatory cawes as well as other functions nerformed by the ASLBP.

To the extent this recommendation suggests the need for rules on the conduct of a proceeding, such rules already exist at 10 C.F.R. Part 2.

The promulgation of such rules are the province of the Commission itself.

However, the

.ASLBP is finalizing comprehensive amendments to the existing rules of practice which are intended to clarify and simplify.

those rules.

We-believe that the adoption of these or similar amendments will result in a more understandable, and thus more efficient, adjudicatory procedure.

As to the need for formal internal operating procedures, I note that many such policies already exist in writing and have been distributed to personnel and members of the Panel.

However, I agree that such policies, contained in a single location such as an ASLBP Office Manual, could assist non-ASLBP personnel or new members of the Panel in understanding the day-to-day operations of the office.

The Panel began drafting such an Office Manual a year ago which consolidates, updates, and substantially expands on existing internal operating procedures and policies.

The Manual will be issued by the end of this fiscal year.

9.

_APPENDlX V Page 9 of 14

-i Attachment A 1

ASLBP WORKLOAD FORfCAsit 1990 1994 October 20, 1969 Rev. 4 (4/30/90)

FY 1990 FY 1991 FY 1992 FY

.???

FY 1994 CAlt$ Fit CASES Fit CAlt8 Fit CAST $ Fit CAlti ift (1) 1.

MIGN LEVEL NUCLEAR W $ft A.

LSE Steering Committee, etc.

1 0.10 1 0.15 1 0.15 1 0.15 1 0.15 8.

Rulemsking 0.15 0.10 0.10 0.10 0.10 C.

Technicet tapertise Development 0.15 0.15 0.15 0.15 0.15 D.

PALB 1 1.00 1 1.00 E.

MRS?

ll, letPINDENT ADJ@lCATORY REVltW REGUltt0 BY STATUTE AND RtisULAll0NI J@ets' Fils (2)

1. ANiliRusi (.50 Fit)

(ALJ(.33)+ ECONOMitf(.15))

A.

PENDING 0

0 0

1 8.

FORECAST PERaf/DAVl3 Bilst 1 1.50 1 1.50 1 0.75 0

OTNER 1 0.75 1 1.50 1

(3)

2. CON $ftucil0N PERMITS (2.5 Fit ee.)

A.

PENDING CP's 0

0 0

CARROLL COUNif ($uspended) 1 0.05 B.

FontCAlf Construction Permits 1

LA ENERGY SERV.(URENCO) 1 2.50 1 2.50 1 0.75 0 0.00 FIVE YR. PLAN CONSituCTION PERMIT EARLY Slit atVltW DEFERRfD i 1.00 (Grand Gutf 2, Perry 2. Watts Bar WP 1, WP 3) 1 2.50 1 2.50 1 2.50 (4)

3. OtColetittl0NING (Fils very)

A.

PENDING RAtt (ARTN FACILITY 1 1.20 PATMFINDER(SURP. Lt P.O.+ADV.)

1 0.50 1 0.50 8.

FORtCAsi SNORENAM (LIC. TR.?)

1 1.00 1 1.50 1 1.00 RANCM0 SECO 1 0.25 t 1.50 TMI.2 i

1 0.80 1 1.00 1 0.80 OTNtt 1 1.50 (5)-

i

4. ENFORCtMENT (Fits very)

A. PtNDING Civil Penalty ADVANCEO MEDICAL 1 0.20 FARLEY 1 & 2 1 0.20 Show Cause (.20 FTE)

ALCNEMit 1 0.20 IIAR IMAGING 1 0.20

-i WitANGLER 1 0.20 Order Mod. of License

$AFETY LIGHT (2 cases) 2 0.50 2 0.50 6

15 e

wu

APPENDIX V Page'10 of 14 1999 ASLDP nfDRKLOAD 80ktCAtt Dittet648 1, 1999 DRAff Rev. 4 (4/bO/90)

FY 1990 FV 1991 ff 1992 ff 1993 ft 1994 CAltl ff! CA

......................................................ltl fit CAMS Fil CAtt$ III CAlt$ fit II. AMit' fils (Contirwed)

4. INFORCantkT (Cent'd.)

8.

PtetCA81 Civil Penelty (i Villtff) 2 0.40 4 0.00 4 0.40 4 0.40 4 0.40 thee Came 2 0.40 4 0.80 4 0.00 4 0.60 4 0.80 Oriter for modificellen 1 0.20 2 0.40 2 0.40 2 0.40 2 0.40 t6)

5. CAND 018P06AL Of E lit i 1.00 1 1.00 1 1.00 0

(?)

6. LICtttt AMientwil (f tts very)

A.

PO SING bpent Puel Pool TWRKtf PolW1 364 1 0.50 VIANOWT TA#tti 1 0.50 CP tecepture Vi. ?A#ttt i 1.00 1 1.00 B.

FORtCAlt CP tecepture (10) 1 1.00 1 1.00 OLAs 3 1.50 3 1.50 3 1.50 3 1.50 3 1.50 Prevlelenal Lic. (4) 1 0.50 1 1.00 toont twl tools 1 0.20 1 0.20 1 0.20 1 0.20 1 0.20 tesearch teactor3 1 0.20 1 0.20 1 0.20 1 0.20 1 0.20

7. ItANUFACTURING Pitalf 5 0

0 0

(8)

4. alAttalALS t Mtutt (0.12 Ftt)

(P.O.+ Adviter)

A.

PtelbG ADVANCIO mt0ICAL 1 0.12 1 0.12 NtatAfttt FutL NLA 1 0.12 RectutLL Iki'L.

1 0.12 8.

PottCAtt aseterials License 2 0.24 4 0.46 4 0.48 4 0.48 4 0.48 eleterials License Amenement 1 0.12 2 0.24 2 0.24 2 0.24 2 0.24 (9)

9. OPitAflhG LittkSt (Fils very)

A.

PtelhG 8tAta00K 1 0.75 blASN1h470h WUC. 1 1 0.05 1 0.05 1 0.05 1 0.05 1 0.05 nsAatthC10N NUC. 3 (Swapensed 1 0.00 1 0.00 1 0.00 1 0.00 1

8.

Pob.Mtf StAM00K tietAND 1 1 1.50 1 0.50 alA8800K asetAe 2 1 0.50 1 1.00

10. OPlaAton's LICtutt (0.10 tit)

A.

tentCAst 2 0.20 3 0.30 3 0.30 3 0.30 3 0.30 (10)

11. PLANT Lift EKTIN810W (Ffts very)

A.

FORECA81 YAemit 00WE i 1.00 1 2.00 1 1.00 IsouflCELLO OTNik 1 2.00 1 2.00 1 0.50 1 1.10 1 1.10 (11)

12. RestAN06 A.

FeatCA$f ( 2 Fit) 2 0.30 2 0.30 4 0.60 4 0.60 4 0.80 (12)

APPENDIX V Page 11 of 14 j

1999 Altt> W0stLQAD FontCAlf DEClutit 1, 1999 D4Aff bev. 4 (4/30/90)

Ff 1990 FT IP91 FY 1992 FY 1993 FY 1994 CAltl Ff

................................................t CAlt$ Fft CAlt $ Fil CAbtl Fit (Altl Fit II. ADett' Ftis (Centtrued)

13. sfAuban0 DillG4 CttilFICAfl0s A.

FaktCAST ht(ASWR) i 1.50 1 2.00 1 0.b0 CE SYlflu 60+

i 0 b0 1 2.50 1 0.40 Wilfitsmount (A>600)

CANDU 1 1.50 Det/etR8WR 1 1.$0 OTWitt (e.g. Ctlle, Plus) 1 0.80 lit. 00 pit 810m enDtet0 (13)

14. AULthAtlWG COMMtWil DN PADPD$t0 kULtl 3 0.15 5 0.25 5 0.25 5 0.25 5 0.25 Ptocit0th&B (14) 4

15. $PECIAL P40CitplkCl (Filt very)

A.

PluDlWG Adjudicatory ADvhett0 hiclCAL 1 0.$0 1 0.10 6.

F000CAtt Adjuditetery Feet findths Investipetive TOTAL BPECIAL FontCAlf 2 1.00 2 1.00 2 1.00 2 1.00 2 1.00 (15)

16. UNANilCIPAtt0 tytkis 0 0.00 0 0.00 0 0.00 0 0.00 0 0.00 FV 1990 FV 1991 FY 1992 FY 1993 FY 1994 CAlt$ Fft Fft CAlt$ fit CAlt $ Fit CAltl fi

....................................................CAlt$................................................t Pih0lkG Celt $ (9/30) 20 20 16 23 18 NfW CAbts FOR(Calf 23 27 25 24 24 (ACiuAL htW CAlt$ At Of $/M< %

ofNit NAffill (lteam I & 111.14) 4 6

6 6

6 (16)

TOTAL CAlt$ AND DittCT STAFF Fils 47 14.97 53 22.44 49 24.62

$3 24.97 48 16. T2 SUPPORT STAFF Fits 16.00 18.00 17.00 17.00

........................................................ 18.00 TOTAL Fils 30.97 40.44 42.k2 41.97 36.72

APPENDIX V Page 12 of 96 ASLBP WORKLOAD AND DIRECT FTEs FY 1990 - 1994 FOOTNOTES I.

HIGH LEVEL NUCLEAR WASTE 1.

The slippage in the HLW repository application date now allows a reasonable time period for building and testing the LSS system and loading an estimated 4 million cere documents.

DOE has agreed to fund the LSS with 8 3.1M in 1990 and a 6.6M in 1991.

See 11/24/89 Memo. Donnelly to Chairman Carr.

The LSS Administrator's Office reports that a pre-Application Licensing Board (pALB) will be needed beginning in 1993 for design, development, and access disputes.

See. SECY 88-140.

The FTE requirement has been reduced substantially from the 1988 forecast.

t II.

INDEPENDENT ADJUDICATORY REVIEW REQUIRED BY STATUTE AND REGULATION L

2.

Anijtrust.

Cases forecast based on May 26, 1989 Information Report. Section A (SECY 89-168) and consultation with 000.

l l

3.

Construction permit.

FTE requirement higher than 1988 forecast because:

(1) LES/URENCO gas centrifuge plant case will be heard under the new combined Cp/OL rule and will be more sharply contested in a shorter period of time (probably 2 1/2 years) than power plant Cps in the past; and (2) one or more deferred plants are planned for beginning in 1992 (See SECY-90-060, 2/22/90).

4.

Decom.n i s s i on i ng.

pathfinder, a small reactor" safe store" case, may be a precursor case.

Consequently. FTE estimate may be low.

A hearing request by Shoreham proponents is pending before the Staff.

5.

Enforcement.

A second utility civil penalty case is expected in mid to late FY 1990.

Forecast assumes two new civil penalty and show cause cases and one order for modification case filed each year and completed in the following year.

6.

Land Disposal of Weste.

Up to three low Level Waste Repositories are planned by non-agreement states.

l

a APP [N0!X V o

Pa8e 13 of 14 I

k FOOTNOTES (Continued) 7.

License Amendments. Case forecast based on historical experience with emphasib on the Amst two years and an increase in operating reactors to 115.

There are ten plants eligible for Cp recapture and 4 plants with provisional licenses.

Only two of these 14 have been projected to require a hearing.

8.

deterials Licenses.

Cases are decided by a single presiding Officer assisted by a technical advisor under 10 CFR Subpart L.

They require more work by the judge because he is solely responsible for building the record normally created by the parties in conventional proceedings.

Normally, the Staff does not appear in these.

proceedings.

Cases appear to be n the increase with some 8,200 licenses outstanding line:

ins 2,200 hospitals and 400 private practice clinics -

s SECY 90-047).

Forecast assumes three new cases filed each year and completed in the following year.

9.

Q2tratinz Qgun.

FTE estimates for the two Washington Nuclear reactors are deliberately understated due to the uncertainty of activity.

10.

Plant Life Extension.

Filing dates based on NRR estimatos.

These cases are expected to be intensely contested because of new safety issues.

Consequently, the FTE estimates may be low.

11.

Etaand s.

Remands occur in strongly contested cases like Cps and Obs.

Consequently, remands are expected to increase in 1992 because of the novel issues involved in 1

plant life extension and standard design certification proceedings.

12.

Standard Design Certification.

Case filing dates based on 000 and NRR schedules.

See SECY-89-334 (10/27/89) updated by Chairman Carr's 2/8/90 testimony before the House Interior and Insular Affairs Subcommittee on Energy and the Environment.

These cases will involve novel issues, will be intensely contested, and are estimated to overlap portions of at least three fiscal years.

III.

COMMISSIONED ORDERED PROCEEDINGS 13.

Rule Making.

ASLBp is completing a " plain English Rewrite" of the 10 CFR part 2 rules of procedure requested by Chairman Zech.

In addition, the office of General Counsel has been actively engaged in writing new 4

APPESDDC V Page 14 of 14 I

1 I

t FOOTNOTES (Continued) i rules, and there will be a number of special rules for the HLW Repository requiring ASLBp comment.

See, e.g.

+

" Implementation of the U.S. Environmental protection Agency's High-Level Waste Disposal Standards,"

SECY-89-319 (10/17/89).

14.

Special proceediriga.

Historically, the Commission has

{

assigned one to three adjudicatory, fact-finding, or investigative proceedings to the panel each year.

They are usually large proceedings lasting two to three years.

j l

Consequently, the FTE estimates may be lou.

Additionally, I

the Inspector General recommends that the panel hear cases I

concerning security and special nuclear materialn clearance, adverse notion and non--bargaining unit employees. EEO where authorized by law, and the Dpo process.

The first DPO proceeding was received recently.

15.

Unanticinated Events.

This category covers contingencies such as Commission assignments without an historical j

basis, new jurisdiction conferrred by statute (e.g.,

an MRS proceeding) or regulation, etc.

16.

Total Cases and Direct Staff Years.

a.

Total Cases.

Unless otherwise explained in the foregoing footnotes, forecasts are based on historical experience with emphasis on the last two years.

Total cases include analysis and comment on rulemakings.

b.

Judge Staff Years.

Labor factoru are based on nine years of forecasting adjusted for the changing nature of recent experience in the adjudicatory work required to decide new and evolving issues in particular types of cases, both pending and forecasted.

i o.

Support Staff Years.

Reflect diversity of services required of staff including service to other Commission offices. See Inspector General's Draft

)

Report on Review of the Atomic Safety and Licensing l

panel dated May 8, 1990.

l i

d.

All-cases and FTE estimates have been discussed with and concurred in by 00C's Hearing and Enforcement Division attorneyn at the outset of FY 1990.

The data

]

has been revised to reflect subsequent developments.

i l

l

.r,

APPENDlX VI Page i of 5 re u.,y

^g UNITED sTATis

/

NUCLE AR REGULATORY COMMIS$10N r

{

l utmwoton, p. c. senos JUN 0 81990 MEMORANDUM FOR:

David C. Williams inspector General FROM:

Hugh L. Thompson, Jr.

Desuty Executive Director for (uclear Materials Safety, Safeguards and Operations Support

SUBJECT:

DRAFT REPORT ON REVIEW OF THE ATOMIC SAFETY LICENSINGBOARDPANEL(ASLBP)

This responds to the May 8, 1990 memorandum transmitting the subject audit report. You specifically focused on the use of AELBP judges outside the scope of their regularly assigned duties. With respect to your specific recommendations, I submit the following:

Recommendation 1 Consider the feasibility of using the ASLBP administrative judges, where applicable by law and regulation, in the formal hearing process for security and special nuclear materials clearance cases, adverse action and grievance cases for non bargaining unit employees, EE0 counselors or EE0 officers, and the DP0 process.

Resoonse Agree. With regard to the use of ASLBP judges, the EDO staff has no objection to considering them as Hearing Examiners under the following circumstances:

1.

10 CFR Part 10 cases involving centractor and licensee personnel and 10 CFR Part 11 cases for $NM Access Authorizations. These cases would involve security clearance and/or access.

2.

Grievances and adverse action appeal cases for which no statutory or contractual (i.e., union agreement) obligations exist. These cases would generally involve non bargaining unit employees or those without veteran's preference, i

3.

EE0 cases wherein judges would serve as EE0 Officers, but not EE0 Counselors or hearing examiners pursuant to formal Title Vil proceedings.

Judges may certainly volunteer and be considered for EE0 Counselor positions as any employee may; however, the assignment of judges, as a group, to these positions may not be appropriate or efficient. The EE0 Counselor is not expected to serve as a formal adjudicator or examiner.

With regard to formal proceedings pursuant to Title Vil of the Civil Rights Act of 1964, only the U.S. Equal Employment Opportunity Commission can assign Hearing Examiners.

t i

l

{

l l

APPENDIX VI Page 2 of 5 2-l 4.

Some Differing Professional Opinion or Differing Professional View (DP0/D"V)casesmay,dependingontheissueandtheexistenceof previously constituted standing review panels, lend themselves to the use of St.BP judges. They would be considered on a case by case basis.

J gggrandation2 Dey: lop policies and procedures for referring cases to the ASLBP.

Response

Agree.

1 intend to establish a procedure for considering the use of available A5(BP judges in those situations specified in Recommendation 1.

This procedure will be coordinated with ASLBP as well as appropriate staff components.

Attached are additional comments on the draf t report for your consideration.

l Hug L. Thompson r.

l Qe sty Executive Di or for V'uclear Materials afety, Safeguards, and Operations Support

Attachment:

As stated 1

l I"

E w -

APPENDDC VI t

Page 3 of 5 MAY is q ADM COMMENTS ON DRAFT OIG REPORT ON REVIEW OF ASLBP Page 22, first paragraph, lines 8 and 9, change to readt Access Authorization, i.e. security clearance under 10 CFR Part 10; special Nuclear Material Access Authoritation under 10 CFR Part 11;"

Rationale Technical accuracy and distinction between the

?

two programs.

Page 23, second paragraph, third and fourth sentences, change to read "For example, under the provisions of 10 CFR Part 10, qualified NRC employees, such as ASLBP judges, may serve as..

Hearing Examiner in those cases not involving applicants for NRC employnent, NRC employees or NRC consultants.

ASLBP judges may serve as Hearing Examiner in those 10 CFR Part 10 cases involving contractor and licensee personnel and 10 CFR Part 11 cases for SRM Access Authorizations."

i Rationale:

Technical accuracy and clarity.

It should be noted, however, that SEC has had only one licensee / contractor case since 1975 that a ASLBP judge could have served on.

Page 24, last paragraph, second sentence, change to read:

"If a Hearing Examiner is required, NRC should consider including ASLBP administrative legal judges on the list of qualified attorneys to conduct 10 CFR Part 10 hearings on security clearance cases for contractor and licensee personnel, and special nuclear material access authorization cases under 10 CFR Part 11 for licensee personnel."

j Rationalet Clarity and accuracy 1

Page 29, Recommendation 1, third line, change to readt j

. hearing process for access authorization, i.e.,

security clearance, under-10 CFR Part 10 and special nue. gar material access authoritation cases under 10 CFR Part 11' Rationales Clarity and accuracy

APPENDIX VI 5

l

/

'q, UNITED STATES

,/ '

4 NUCLEAR REGULATORY COMMIS$10N I

l W ASMlWOTON. D C 3 men

/

MY8 10 OFFICE OF THE INSPECTOR GENERAL MEMORANDUM FOR:

B. Paul Cotter, Chief Administrative Judge Atomic Safety and Licensing Board Panel Hugh L. Thompson, Jr., Deputy Executive Director for Nuclear Materials Safety, Safeguards and Operations Support office of the Executive Director for Operations FROM:

Richard Donovan,' Acting Assistant Inspector General for Audits SUIL7ECT:

DRAFT REPORT ON REVIEW OF THE ATOMIC SAFETY AND LICENSING BOARD PANEL Attached for your use in preparing comments are five (5) copies audit report l

of a draf t Of fice of the Inspector General (OIG)ic Safety and containing the results of our review of the Atom Licensing Board Psal (ASLEP)

We would appreciate receiving

'your ponts wfthin 10' days from the date of this memorandum.

If you have any substantive disagreement with the facts as presented, we are available to discuss them with you or your staff before you send us a formal response.

Please note that this is a draft report which is subject to revision and is being made available solely for the purpose of obtaining your review and comments.

Please safeguard copies of the draf t report to prevent its premature publication or similar improper disclosure of its contents.

In its comments on NRC's Five Year Plan, the Commission mandated that a study be performed of the ASLBP.

The Commission subsequently agreed that 01G should perform the study.

Our primary objective was to assess the operations, workload, and resources of the ASLBP in light of the decrease in construction permit and license application cases.

summary of Findinag Overall, we found that it is Ql O Vult'to project,the workload and resource requirements necessary to carry out the mission of the ASLBP.

Also, the ASLBP is going through a transition' period with a change in the types of cases conducted.

The report S

6

--.-n-----.---~-nv

,-,,,,w-n

,,---m-,--n.,e--

,r,-

--s--,,,

ww---

MAY 8 IM I

o.

APPENDIX VI Page 5 of 5 contains four findings covering various aspects of ASLBP's operations.

More specifically, we found that:

--The capes forecast-by,,the ASEAP for.,Piscal Year yt) 1990 have tt:15 hakes it

~

troen filed at a pace slower than expected.P'asts of cases for necessary for ASLBP to reevaluate its forec i

PYs 1991-94.

f

--The significant Asde5se in caseloadWthEnture of ASLBP's k make it necessary for ASLBP to institute..manasement At tafels to ensure.4 bat Panel.neebers are. fully utilized.

w l

the time of our audit three Panel seabers did not have a full One member had a low caseload because of l

caseload.

The two remaining members had extenuating circumstances.

recently completed cases that required greater portions of their time.

--The functions $ rformed by the ASLBP could be expanded to Many bgidge, the gap during perlods of low caseload. functions were iden ASLBP.

--The yLBP does n'oY.~h'a've f'ormal operati'n' Trocedures g

which provide general guidelines on the conduct of Formal adjudicatory cases and other ASLBP operations.

operating procedures have been drafted but have not been finalized.

Conclusion The ASLBP conducts a wide range of cases that vary in complexity, l

The nature of subject matter, and length of time to complete.

the work make it essential that management controls be in place Also, additional to ensure that members are fully utilized.

functions can be performed by the ASLBP to bridge the gap during Purther, formal operating procedures periods of low caseload.should be finalized and put in ef fect by ASLBP managemej Such l

procedures are in line with sound internal controls.

i Recommandations The report makes sevei'reconnendations...

p. recommendations are and two addressed to the Chief Administrative Ju recommendations are addressed to the Executive Director for OperatiMa' (EDO).

Attachment l

As stated NOTE FROM OlG: The draft report attached to Hugh Thompson's memorandum with his comments, is not included in the final report.

..--c.

.,.._.y

-.y.__..,....mv

~,,

t

+

1 APPENDIX V]l Page 1 of 1 MAJOR CONTRIBUTORS TO THIS REPORT William L. Glenn, Jr.,

Assistant Director for Administrative Audits Corenthis B. Kelley, Senior Auditor Edward C. Gillen, Auditor r

o' O

1

-

ML20056A140

Contents

Text

SUBJECT:

Attachment:

SUMMARY

SUBJECT:

SUBJECT:

SUBJECT:

SUBJECT:

Response

Attachment:

Navigation menu

ML20056A140

Text

SUBJECT:

Attachment:

SUMMARY

SUBJECT:

SUBJECT:

SUBJECT:

SUBJECT:

Response

Attachment:

Navigation menu

Search