ML20056B217
| ML20056B217 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 01/30/1990 |
| From: | Cotter B Atomic Safety and Licensing Board Panel |
| To: | David Williams NRC OFFICE OF THE INSPECTOR GENERAL (OIG) |
| Shared Package | |
| ML20056B213 | List: |
| References | |
| ALAB-924, LBP-89-32, OL, NUDOCS 9008150216 | |
| Download: ML20056B217 (13) | |
Text
g ih-W O
- f '
j i
L* ~
i e
g ne.q 1
4 UNITED STATES -
i
%...../[K NUCLEAR REGULATORY COMMISSION.
' 3 ATDMic SAFETY AND LICENSING SOARD PANEL J"Am;ry 8t*m0 a
LIMITED DISTRIBUTION 1
i MEMORANDUM FOR:
David Williams Inspector General FROM:
B. Paul Cotter, Jr.(
Chief Ad7ainistrative Judge
. Atomic Safety and Licensing Board Panel
SUBJECT:
PROPOSED INQUIRY INTO SEABROOK LICENSING PROCESS I. Introduction I recently-learned that Senator John Glenn, Chairman-of the 1
Senate Committee on Governmental Affairs, requested in a letter dated December 4,
.into the Seabrook-licensing-proceeding.1989'that you conduct an inquiry i.
L Senator Glenn's I
request stems from a November 15, 1989 letter to him in his capacity as Committee Chairman signed by' eighteen Congressmen and Senators.
I am' deeply concerned about the propriety of this request..
The New England Congreamional delegation characterized a November ~9, 1989-decision of the Seabrook Licensing Board authorizing a full power license as "a~ flagrant disregard' for proper procedure'and statutory intent."
The November 15 letter.want on to ask the Committee on Governmental Affairs to undertake-
...a full investigation et <ttempts within=the NRC to circumvent the administrative appeal mechanisms and other-procedures tha'
'xist to ensure:public f
L input in the licensing p.acess...[and) how the NRC
'can continue. issuing licenses when the Appeal Board-has acknowledged that it has no idea what the governing statutory standard...means with respect to emergency planning...
.Through his December 4 letter, Senator Glenn asked your office.to conduct the requested investigation.
io
'The November 9 Licensing Board Decision (LBP-89-32, p
30.NRC
__ (November 9, 1989)) followed by two days a November 7, l:
O 9008150216 900007 L
-PDR ADOCK 05000443 If o
.-x--.x-
- - -a w-ew-~w m-d e-,
vv o-
'~9 9T M'
'" i'
'"*'W'
~
m o
l l_.
ll' IlMITED DISTRIBUTION.
-1989, Appeal Board decision which remanded four issues on the New Hampshire ' emergency plan for :further consideration.
ALAB-924,.30 NRC (1989).
the_ Licensing Board concluded'in part that the remandedIn its November 9 decision, issuesJin ALAB-924^did not: require resolution through a-pre-license hearing, and thus did not bar.the issuance of a' full power license for the Seabrook Station,'which it authorized.
In a subsequent decision issued after the November 15 letter
-that prompted Senator Glenn's request to you, the Licensing Board detailed the reasons for this conclusion.
LBP-89-33, 30 NRC
,.(Noveuber 20, 1989).. The Board's decision in this regard is currently under review by the commission pursuant to 10 CPR Part 2.
The request to Senator Glenn clearly was prompted by the perception that the Licensing Board's decision runs counter to the practice at NRC of withholding operating licenses until~all litigated issues have been resolved, a practice
.which the Licensing Board specifically found to be inapplicable.
However, Senator Glenn's request cannot be answered'without necessarily probing the internal deliberative processes of the Saabrook Licensing Board, a judicial body under the Administrative Procedurp Act.
Butz v. Economou, 438 U.S. 478, 513-514 (1978).
133 Consequently, I am compelled to raise at this early stage my concerns regarding the propriety of such an investigation.
II.
Discussion clearly, no employee of the Commission, including the
.memberssof the ASLBP, is exemot from statutory or regulatory 1
The Supreme court held that hearing officers are the functional equivalent of Article III judges and enjoy the same immunity.
In reaching that conclusion, the Court noted that The conflicts which federal hearing examiners seek to resolve are every bit as fractious-as those which come;to court.
As the Bradley opinion points out:
"When the controversy involves questions affecting large amounts of property or relates to a matter of general public concern, or touches the interests of numerous parties, the disappointment occasioned by an adverse decision, ofLen finds vont in imputations of (malice)."
Butz v. Econ 2E2g, 438.U.S. at 513, auctina, Bradlev v.
_ Fisher, 13 Wall 335, 348 (1872).
2
\\
~
LIMITED DISTRIBUTION provisions governing their conduct, investigative authority of your office.or are beyond the However, neither Congressional rsquest contains any_ allegations of-improprieties of the type that.might supportsan investigation into a judicial officer's conduct.,
this is a bare _ request for.a generalized inquiry into theRather, individual and collegial deliberative processes that underlie the' decisions issued in the on-going-Seabrook operating license proceeding.
In my view, this type of' inquiry would not only result in the very circumvention of administrative appeal mechanisms the members of congress so vigorously oppose, it would also run afoul of constitutional and statutory constraints intended to prese{ve the integrity of the administrative adjudicatory process The prohibitions against inquiries into judicial deliberations are greatest where, on going.
as here, the proceeding is-
... agencies are sometimes called to task for failing to adhere to the " intent of Congress" in supplying meaning to the often broad statutory standards from which the agencies derive their 2 Here wefdistinguish inquiries into the personal
. conduct on the'part-of a judge which may violate criminal, statutory or regulatory provisions.. Inquiries into the decisions rendered by such judges must be directed by a party in the first instance to the judge himself followed by review by appropriate appellate bodies.
Eta 10 CFR S 2.704.
This~ap.proach is the' rule throughout the Federal judicial system.
3 administrative review of the Licensing Board's actionThe process a (including allegations of bias or projudice) detail at 10 C.F.R. Part-2.
are set out in Following such administrative review, further-review may be obtained from the Court of Appeals. 28 U.S.C. S 2342.
Indeed, all three levels of
. review'have already been initiated with respect to the very issuance you have been asked to probe.
The decision at
- issue is on appeal before the Appeal Board.
'is presently considering the Licensing Board's decision in The Commission connection with its immediate effectiveness review under 10
.CFR S 2.764.
Finally, a LBp-89-32,'among others, petition for judicial review of has been filed with the United States Court of Appeals for the District of Columbia Circuit.
3 i
'g
.f f
,y' LIMITED DISTRIBUTION _
authority...Although such investigatory methods raise serious policy questions as to the da facto
" independence" of the federal' regulatory agencies, it seems doubtful that they' raise any constitutional issues.
r" However, when such an investigation. focusses directly and substantially upon the mental decisional processes of a commission in a'came which in mendinn before it, Congress is no longer intervening in the agency's x.
lecialative dunction, but rather, in its iudicial function.
At this latter point, we-become concerned'with the right of private litigants to a fair trial and, equally important, with their right to the appearance of impartiality,.which cannot'be maintained unless those who exercise the judicial function are free from powerful avtornal influences.
Pillsbury Comoany v.
F.T.C., 354 F.2d 952, 963-64 (5th Cir.
1966)(citations omitted).
Egg Koniaa. Inc.
Villaae of Uvak
- v. Andrum, 580-F.2d 601, 610 (D.C. Cir. 1978)(Congressman's letter; seeking postponement of adjudicatory decision based on his view of legal issues compromised agency decision-maker's; appearance of-impartiality).
Because a govarnmental body cannot'do indirectly.what it is prohibited from doing directl different rule applies where,y, I do not believe that a as here,,a-member of Congress asks-an agency's Inspector General 1to probe (and potentially interfere or influence) the deliberations of a Licensing Board with respect to an on-going proceeding.
While a member of Congress may request an investigation, he.cannot effectively direct that one be initiated.
Egg SEC v.
Wheelina-Pittsburch Steel corn., 648 F.2d 118, 1981) (RD hanc) (formal investigation at request of130 (3d Cir.
Congressman improper absent independent determination by agency that investigation is warranted).
Given the absence of.any allegation of improprieties on'the part of any member with tne merits of particular Board decisionr,of the Seabrook Lice it would appear that both the Pillsbury doctrine and the rule in Wheelina-pittsburah argue against the initiation of an investigation in this particular case.
Moreover, even where no particular adjudicatory proceedingis deliberative processes of ASLBP remain, in my view, quasi-judicial bodies such as the severely limited.
First, the Supreme court long ago recognized that where the procedure 4
en
~
nr 9'
LIMITED-DISTRIBUTION-
+
under which an agency resolves a matter resembles that of a judicial' proceeding, an examination (of the mental' deliberative processes).of a judge would be destructive of judicial responsibility...Just as a' judge cannot r.3-subjected to such scrutiny,...so the integrity.
ct'the administrative process must be equally respected.
HDited states v. Moraan, 313 U.S.
409 422 1941.'
.Here,
both the proceeding and the decision-m,akers(wpre)and remain quasi-judicial.
ERA Butz v.
Economou, sRDra is'not a modern concept.' The sanctity of the collegial deliberations s
English court from their oath of secrecy in order toAn effort to release memb facilitate an investigation into the basis fe,r their decision in a particular case was defeated in the mid-18th century when its opponents showed that
... justice could not be administered satisfactorily by any tribunal in the world if
-there_ wore to be a public disclosure of the reasonings and observations of those who are to pronounce the verdict or judgment while they are consulting together.
NLRB v.
Botany Worstad Mills, 106-F.2d 262, 264 (3d Cir.
1939), auctina Campbell, Lives 21 thA Lagd Chancellors, V, Chapter 136, p.-141.
Vol.
5 Among the statutory provisions designed to ensure independence, the court in Buta noted that when conductin hearing under the Administrative Procedure Act, ga examiner a hearing is not responsible to or subject to the supervision or direction of employees or agents engaged in the performance of investigative... functions for the agency.
Butz v. Economou., 438 at 514.
rationale underlying this statutory protectionto investiga
, the r
preservation of the. integrity and independence o(f the quasi-i.e.,
the judicial deliberative process) is a strong argument against inquiries of the type requested in this case 5
(
+
,, mme
g,,,
LTMITED DISTRIBUTION Second, absent special circumstances, enhancing the quality of pre-decisional governmentthe public interest in deliberations by preserving their confidentiality has been repeatedly found to outweigh any competing interest in disclosure.
Egg gig Kaiser Aluminum and Chemical Corn.
United States, 157 F.Supp. 939, 946 (Ct.Cl. 1958) v.
privilege"); NLRB v.(deliberations exempt from civil discovery under " executive (1975)
Sears Roebuck and Comnanv, 421 U.S.
132 advice e(deliberative documents reflecting pre-decisional xempt from disclosure under FOIA);
Comeany (Palisades Nuclear Power Facility), consumers Power 117, 120-123 (1980) (pre-decisional delfberative documents ALJ-80-1, 12 NRC protected under FOIA presumed exempt from discovery in NRC proceedings); 5 U.S.C. 552b(c)(10) of collegial gcvernment bodies exemp(tjudicial deliberations instant Congressional requests from disclosure).
The identify no special circumstances which justify a departure from these general rules in this case.
The Panel and its 'ndivid' employees have a duty to a-sint you in the conduct of anyI members inquiry you conclude is necer.sary and proper in the discharge of your statutory duties.
be tempered, as indicated above, However, that duty must by our equal obligation und9r the Administrative Procedure Act and Federal case law resisting generalizedto preserve the integrity of the adjudicatory process by deliberative processes, extra-judicial inquiries into the judges of this Panel.* that underlie the decisions of the 6
to direct inquiries bI have consistently taken this position with respect deliberative precess.y members of Congress into the judicial For example, inquiry by Congressman Edward Markey regarding ain connection with an reconstitution of the Shoreham Licensing Board in 1986, responded:
I Your letter inquires into two protected areas:
(1) the exercise of my responsibility as Chief Administrative Judge in assigning judges to a particular case and (2) the mental processes and deliberations of the judges on the Shoreham Board itself.
from inquiry to preseBoth of these areas are felly protected adjudicatory process.rve the integrity of the It would be improper for me to compromise that process at this Commission by responding to inquiries into such areas.
6 ne
lQ LIMITED DisTarnUTION Accordingly, absent specific and'aupported allegations of improprieties on the part of a particular judge (of which there are none here) or a direction from the commission itself to the contrary, it is my. belief.(and that of my;
. fellow judges) that quasi-judicial officers must refuse to discuss, reveal or otherwise disclose in connection with specific adjudicatory proceedings or the decisions _ rendered thereint (1) their-personal deliberative process; deliberative processes of other judges or their coun(se)l;-(3)-
2 the predecisional drafts of decisions or-other documents which direr +1y or indirectly reveal such deliberative processes;
,and i(: the oral recommendations or advice of other judges or theb counsel regarding the disposition of an adjudicqury matter.
I am available to discuss this matter further should you desire.
cc:
Commissioners William Parler, OGC Dennis Rathbun, OCA Sag Suffolk County Reconstitution of Board byand State of New York Motion to Rescind Chief Administrative Judce Cotter (Shoreham Nuclear Power Station, Unit 1),
LBP-86-37A, 24 NRC 726, n.1-(lH;6).
7
,,..miam.i.i.-
h
r 3 -
Ef
- /,
Ih,.
. UNITED STATES 3
w a
NUCLEAR REGULATORY COMMISSION
%,,7,,*#I[
. wasmWOTON. 0.C. EMB =
February 26, 1990 OFFICE OF THE INSPECTOR GENERAL The Honorable John Glenn, Chairman Senate Committee on Governmental Affairs 3
340 Dirksen Senate Building Washington, DC 20510
Dear Senator Glenn:
on December 4, 1989, you sent me a letter co-signed by 18 Members of Congress requesting an investigation of the Nuclear Regulatory Commission's (NRC) processes with regard.to the licensing of the L
Seabrook Nuclear Power Plant.
You asked that we respond'directly to tt.4 18 Members of Congress.
Enclosed,' for your information,.is a copy of a letter I sent-to o
each of the.18 Members of Congress today identifying the scope of l;
the review we will carry out in' response to your request.
Sincerely, Sam 4c C. Eh David C. 1.'1111ams l
Inspector General e
Enclosure:
As stated The Hon'orable William V. Roth cc:
Chairman Carr be:
Commissioners (4) l.
W. Parler J. Fitzgerald
-0.
Rathbun.
[j'1 '" V M 5.
arp,S J. Fouchard 3#
pmunJb-
~ 'Q c
m
4'
_ hI UNITED STATES
. - ! A, g }',i
't NUCLEAR REGULATORY COMMISSION gl wAswinctow, o.c. annes
\\A.'.O#.8 February 26, 1990
..e OFFICE OF THE INS *ECTOR GENERAL The Honorable John F. Kerry United Statsa senate
Dear SenatW Kerry:
The November 15, 1989, letter to Senator Glenn signed by you and
-17 other Members of Congress has been referred to this office by Senator Glenn.
That letter included as attachments a November
(
15, 1989, letter to Nuclear Regulatory Commission (NRC) Chairman Carr from the same 18 Members of Congress, and a November-3, 1989, letter to Chairman Carr from four Members of Congress.
Our review of those letters identified the foe. lowing two major concerns:
1.
.The governing emergency planning standard requiring-
" reasonable assurance of adequate protective measures" is not understood or effectively implemented within the NRC.
2.
In its deliberations regarding issuing a license for the Seabrook Nuclear-Power Plant, the NRC has attempted to circumvent the administrative appeal mechanisms in the licensing proceedings.
Senator Glenn's letter to me requested that my office carefully evaluate the matter, conduct a thorough inquiry and report directly to you.
Since we received Senator Glenn's letter we have been assessing how wa can be responsive to your request while recognizing the legal constraints'on our ability to fully review the issues in your letters.
Thip letter explains both' what we will be able to review and what.we will not be able~to review in response to your expressed concerns.
On February 22, 1990, a Pfdaber of my staf f = discussed the general content of' this letter with Sally Ericsson, from Senator Kerry's staff, in response to Ms. Ericsson's inquiry regarding the status of our response to Senator Glenn's letter.
Regarding the first issue identified in your letters to Senator olenn and Chairman Carr, we will examine the emergency planning requirements as set forth in NRC's regulations and the implementing guidance to determine whether they provide adequate guidance to the NRC staff in making " reasonable assurance" determinations. -Upon completion of our review we will provide our report directly to you and the other 17 signatories of the November 15, 1989, letter to Senator Glenn.
Regarding the second issue of NRC's compliance with administrative appeal mechanisms in the Seabrook case, we do not
,::s>>e::st:F:::!!::
3*;
/
o believe we can undertaks such a review bacauce it involves a quasi-judicial, adjudicstory proceeding wisich is currently
-ongoing.
This case is ceing conducted pursuant to the Administrative Procedure Act, 5 Usc 551 81:53g, as a formal on-the-record pro:seding subject to administrative appeal and-judicial = review.in the Federal courts.
Hence, there already exists a statutory process-for evaluation arid review of ESAhEaSh adjudicatory rulings.
Indeed, both the Appeal Board and Commission currently have questions pending before them and shortly-after the date of senator Glenn's letter, the Licensing Board decision at-issue was challenged in.the United states Court of' Appeals for the District of Columbia Circuit.
commonwanith of Maamachusetta y L,84 Hg;1ggg Recrulatory commiamien No.- 87-1743-(filed-December 5, 1989).
There well may be additional litigation of-Seabrook issues in the future.
~
The guidance of the court of appeals in 9111mburv gg, y Egggggi Trade commiamien,-354 F.2d 952 (5th Cir. 1966) suggests caution in inveetigating quasi-judicial proceedings in response to Congcossional requests.
The court expintned that when an investigation focusses directly and substantially upon the mental decisional processes of a commission in a came which in eendina-before it, Congress is no longer intervening in the Agency's legislative function, but rather, in=its iudleini function.
At this latter point, we become concerned with the right of private litigants to a fair trial and, equally important, with their right to the appearance of impartiality, which cannot be maintained unless those who exercise the judicial function are free from powerful external influences. Ig at 964 (citations omitted, emphasis in'the original.)
The instant request appears to be within the-ambit of the Pillsbury-holding.
Moreover, I understand from legal counsel that constraints on examining the' mental. processes of NRC's adjudicatory officials, including the Commissioners and the administrative judges, endure even after the completion of the proceeding.
See UnitAd Staisus v. Morgan, 313 U.S. 409'(1941).
Accordingly, the office of the Inspector General inquiry to be carried out in response to Senator Glenn's letter must be restricted to a review of NPC's implementation of the emergeng
. planning requirements.
I regret that our review cannot be fully responsive to your request.
sincerely, MMO wD David C. Williams Inspector General 1
identical letters sent to Senators Kennedy. Leany, and Mottenbaum and Congressmen Atkins. Brennan. Edwara). Frank.Hochbrueckner. Kennedy. Levine. Marney. Havroules.
Panetta. Pelosi. Schroeder. Studos and Wyden
p UNITED STATES OF 46
{
. NUCLEAR RESULATQWY C) Antis 0N s.
In the Matter of I
I PUBLIC SERVICE COMPANY OF NEW l
Docket No. (s) 50-443/444-OL HAMPSHIRE, ET HL.
I (Seabrook: Station, Units i and 2)
I l-I CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB MEMORANDUM DTD 8/7/90 have been served upon the following persons by U.S. mail, first class, except as otherwise noted and-in accordance with the requirements of 10 CFR Soc. 2.712.
~
Admintstrative Judge Administrative Judge G. Paul.
Bollwerk, 111 Thomas S. Moore, Chairman Atomic Safety and Licensing Appeal Atomic.Safet/ and Licensing Appeal Board Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Adannistrative Judge Administrative Judge Howard A. Wilber Alan S. Rosenthal Atomic Safety and Licensing Appeal Atomic Safety and Licensing Appeal Board Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Cosmission
, Washington, DC 20555 Washington, DC 20555
-Adelnistrative Law Judge Administrative Juoge
.tvan W. Smith, Chairman Richard F. Cole Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulat:ry:Commissten U.S. NuclWar Regulatory Commission Washington, DC-20555 Wasr,ington, DC 20555 Robert R. Pierce, Esquire Administrative Judge Atomic Safety and Licensing Board Kenneth A. McCollen U.S. Nuclear Regulatory Commission 1107 West Knapp Etreet Washington, DC 20555 Stillwatv. OK 7a075 Edwin J. Reis. Esc.
Mitzi A. Young
<0ffice of the 6eneral Counsel Attorney U.S. Nuclear Regulatory Commission Office of the General Counsel Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555
- Docket ~No.~(s)S0-443/444-OL LB MEMORANDUM DTD 8/7/90 Diane Curran, Esq.
Thomas 6. Dignan, Jr., Esc.
Harmon, Curran 6 Tousley Ropes 6 Bray 2001 S Street, N.W., Suite 430 One International Place Washington, DC 20009 Boston, MA 02110 Robert A.'Backus, Esc.
Paul McEachern, Esc.
l, Backus, Meyer & Solomon Shatnes 6 McEachern i
L 116 Lowell Street 25 Maplewood Avenue P.O. Box-360 E
Manchester, NH 03106 Portsmouth, NH 03801 h
D Gary W. Holses Esc.
Judith H. Minner, Esc.
Holmes & Ells Counsel for West Newbury 47 Winnacunnet Road 79 State Street Hampton, NH L
03942 Newburyport, MA 01950 Barbara J. Saint Andrei Esq.
Suzanne P. Egan Counsel for Aaesbury, Newburyport
' City. Solicitor
& Salisbury Lagoulis, Hill-Wilton and Rotenci Kapelman and Paige, P.C.
79 State Street 101 Arch Street Newburyport, MA 01950 Boston, MA 02110 Doug'ty, Director Jane h
Seacoast-Anti-Pollution League Ashed N, Amirlan, Esq.
.5 Market Street 145 South Main Street, P.O. Box'30 Portsmouth, NH- 03801 Braoford, MA 01830 George Iverson, Director George W. Watson, Esc.
N. H. Office of Emergency Management Federal Energency Management Agency State House Office Park South 500 C Street, S.W.
107 Pleasant Street Washinctoni DC 20472 Concoro, NH 03301 s
sack-Dolan George D. Bisbee, Esq.
Federal Emergency Management Agency Assistant Attorney General 442 J.W. McCormack-(PDCH)
Office of the Attorney General Boston, MA 02109 25 Capitol Street Concoro, NH 03301
>h
- e.
<D'cket No.is)S0-443/444-OL-o
-LB MEMDRANDUM.DTD-8/7/90 i
'Buranne Breiseth John Traficonte Esq.
i Board of Selectmen.
Chief, Nuclear Safety Unit l
loan of Hampton Falls Office of the Attorney General Drinkwater Road One Ashburton Place, 19th Floor, Hampton Falls, NH 03044 Boston, MA 0210B
- Peter J. Brann, Esq.
Allen
. Lampert Assistant Attorney General Civil Defense Director Office of 'he Attorney General Town of Brentwood State House Station, 46 20 Franklin Street Augusta, ME 04333 Exeter, NH 03833 4
i William Armstrong.
Anne Goodman, Chairman
. Civil Defense Director Board of Selectmen Town of Exeter 13-15 Newmarket Road
- 10. Front Street Durham, NH 03024 Exeter, NH 03033 I-R, Scott Hill-Whilton, Esq.
l Michael Santosuosso, Chairman Lagoulis, Hill-Whilton & Rotondi L
Board.of Selectmen 79 State Street s
South Hampton, NH 03827 Newburyport., MA 01950 l
i Stanley W.
Knowles, Chairman Norman C. Katner Board of Selectmen Superintendent of Schools P.O. Box 710' School Administrative-Unit No. 21 L
I-North Hampton. Nh 03862 Alumni Drive Hamptoni 'NH 03842
~
1 Sandra F..Mitchell-The Honorable Civil Defense Director Gordon J. Humphrey
. Town of Kensington ATTN Janet Colt Box 10.-RR1 United States Senat'i East'Kingston, NH 03027 Wasnington, DC 20510 l [ >'t
- 11 c n e e s w. manclair Greystone Emergency Management Associates 13
- Summer Street Hillsboro, NH 03244 Dated at Rockville. Md. this l}
7 day of August 1990 a;;i;; ;t=f6it!!?;;;; ;; 1;; a;;;t;;t;e b
il L
8 L'
.