ML20056B511
| ML20056B511 | |
| Person / Time | |
|---|---|
| Issue date: | 03/12/1990 |
| From: | Kohl C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | Carr, Roberts, Rogers NRC COMMISSION (OCM) |
| Shared Package | |
| ML19336C343 | List: |
| References | |
| FRN-55FR27645, RULE-PR-2 AD60-1-16, NUDOCS 9008290005 | |
| Download: ML20056B511 (5) | |
Text
'
<w u.
AD(oO-l
/*
g,
,{.
- Unit'ED STATES l
lf NUCLEAR REGULATORY COMMISSION
-(
-E' ATOMIC SAFETY AND LICEN81NG APPEAL PANEL WASHINGTON. D.C. 30855
\\.....*
/h a
7 March 12, 1990 l
- l MEMORANDUM FOR:
Chairman Carr Commissioner Roberts j
Commissioner Rogers.
- j commissioner Curtiss j
Commissioner Remick j
FROM:
Christine N. Kohl c)2b l
Chairman a
]{
Atomic Safety and Licensing Appeal Panel
SUBJECT:
SECY-90-074 (MARCH 6, 1990), REVISION TO RULES OF PRACTICE (10 C.F.R. PART 2, 5
SUBPART B) TO PROVIDE FOR (1)-EXPEDITED -
HEARINGS WHEN REQUESTED IN CONNECTION WITH' IMMEDIATELY EFFECTIVE ENFORCEMENT ORDERS AND, (2) DELAYS IN EXPEDITED HEARINGS IN CERTAIN CIRCUMSTANCES (FINLAY ' SITUATION) ;.
1 INFORMATION CONCERNING PROPOSED CHANGES TO PART 110, SUBPART G.
i i
The Appeal Panel has the following comments on the draft proposed amendments to 10 C.F.R. Part 2-contained'in SECY-90-074.
ia
- 1. -The draft rule proposes an " adequate evidence"-
af /g
. standard by which a licensing board:is to decide motions t#
challenging the immediate effectiveness of orders issued-Uf' under section 2.202.
Implicitly recognizing the vagueness of this standard, the accompanying statement of
.l consideration explains (at p. 10) that " adequate evidence is akin to the probable cause necessary for~an arrest, a search warrant, or a preliminary hearing on a criminal matter."
There are several problems inherent in this approach.
First, the importation of criminal law precepts into civil enforcement proceedings is likely to provoke challenge.
t Second, this evidentiary standard is alien to NRC adjudicatory proceedings and thus there is no existing precedent and guidance in this regard.
As a result, making these determinations will likely be more, rather than less, time-consuming, at least initially.
A more workable and familiar test for evaluating whether an enforcement order should be immediately effective 9008290005 900021 PDR PR 2 55FR27645 PDR
't d.
2 i
woula balance the alleged immediate and irreparable harm to the subject of the order against the public interest.
Consideration of the public interest, of course, would encompass the need to protect the public health and safety and related concerns, including any potentially affected private interests.
These factors are stallar to those in 10 C.F.R.
I 2.788, relating to stays of ad; adicatory decisions or actions.
Necessarily excluded, however, is the first stay factor (likelihood of prevailing on i He merits) because, at this incipient stage of an enforcement action, little will be known to the decisionmaker about the merits of the staff's action (i.e., there is no record yet).
A balancing test (hara vs. the public intarost) is also more consistent with the Administrative Procedure Act (APA), 5 U.S.C.
I 558(c), than the proposed probable cause standard.
The APA, in conjunction with sections 181 and 186 of the Atomic Energy Act, provides the legal authority for immediately effective enforcement orders "in cases of willfulness or those in which public health, interest, or e-fety requires" such.
If the adequate evidence / probable cause standard is nonetheless proposed for public comment, the rule should v/
clarify who has the burden of proof in connection with a J4eg motion challenging the immediate effectiveness of an
'g enforcement order.
In criminal proceedings, it is the vus A
prosecution that must prove it had probable cause for an G
arrest or a search warrant.. If this is the standard to be T
used, the NRC staff should therefore bear the burden of showing that the immediate effectiveness of an enforcement order is warranted.
In NRC hearings on show cause orders themselves, however, the licensee has the ultimate burden of proof.
- see, e.g.,
Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-315, 3 NRC 101, 105 (1976).
Thus, there is the l
potential for considerable confusion with the proposed probable cause standard.
The suggested balancing test, on the other hand, would
f ribute the burdens more equally
- on the movant/lican.e so show immediate and irreparable harm, and on the staff to shou the need for immediate effectiveness to protect the public interest.
\\
2.
The statement accompanying the draft rule states
\\q*
(at p. 9) that "(i)t is expected that such a motian will
\\ y9 normally be acted u,on within 15 days of its filing."
This is unrealistic, if not impossible.
First, under the Commission's Rules of Practice, " filing" is complete upon deposit in the mail.
10 C.F.R. I 2.701(c).
Thus, there are ordinarily several days between " filing" and " receipt" by the agency.
Second, although it is not clear from thw proposal, challenges to the immediate effectiveness of an enforcement ordar will presumably be treated as a section 2.730 motion.
- See, e.g.,
- p. 11, referring to section 2.730.
I
~~
=
(
3 That provision allows other parties 10 days and the NRC staff 15 days to respond.
10 C.F.R. 5 2.730(c).
See also
- p. 10 of the draft, r6 ferring to answers to the action by the NRC staff and any other party.
Depending on how the motion-ils transmitted to the agency, another two or five days may be added to the response time.
10 C.F.R. I 2.710.
In addition, proposed section 2.202 (c) (2) states that the
" motion will be heard and decided expeditiously," suggesting at least the possibility that the board might hear oral argument.
(Given the nature of the issue involved, oral l
argument would not be unreasonable.)
Further, although proposed section 2.202(c) (2) states that the motion will be decided "before any other issue raised by the answer," the statement of consideration (at p. 10) directs the board to determine the novant's standing as a party -- often a complicatedlegalquestion--nriortorulingonpheaction to set aside the order's immediate effectiveness.
- Finally, despite a recent internal change to facilitate the forwarding of requests for hearings on enforcement orders to the Licensing Board Panel (see Memorandum from W. C. Parler to S. J. Chilk, dated 2/20/90), proposed section 2.202 (c) (1) still requires the commission to issue the order and notice of hearing.
It is in this document that the Commission formally refers the hearing request to the Licensing Board l
Panel, after which a board or presiding officer is
' designated to rule.
See 10 C.F.R. 5 2.704 (a).
Thus, it is inevitable that several days will elapse between receipt of the motion by -the Commicsion's Secretary and actual designation of a licensing board to rule on the motion and preside over the hearing.
In sum, it is literally not possible for the motion to "be acted upon within 15 days of its filing."
The statement of consideration for the proposed rule should thus take account of, among other things, the need to hwait replies' and the potential need for oral argument in some cases, as well as allow reasonable time for the board to render its j
decision.
In addition, the rule, or at least the accompanying statement, should allow for emergency ex parte (i.e., " housekeeping") stays by the licensing board, pending receipt of responsive filings.
Compare 10 C.F.R. 5 2.788(g).
1 obviously, t is significant discrepancy between the proposed rule and its accompanying statement should be corrected.
2 In this regard, some consideration might be given to providing in.the rule itself for expedited replies to the motion by the staff and others.
^0
)
)
1
"(
4 3.
The second paragraph on p. 13, which is similar to one included in an earlier related document, SECY-89-321, is no longer necessary and seems out-of-place, given the new disr,ussion added at pp. 8-11.
In any event, the reference new i 2.202(a)" is incorrect, inasmuch as new section
)
to a 2,202(a) pertains to backfits, not immediate effectiveness.
feo too, "I 2.202(f)" on pp. 12 and 13 should be "i 2.202(e)," and all discussion of this provision should be in one place, so as to avoid confusion.
4.
The word " orders" in line 14 on p. 16 should be changed to "denends," in order to be consistent with the text on p. 7 and a principal purpose of the proposed rule.
We also note that the "Regulatcry Analysis" contains no discussion of the immediate effectiveness portion of the proposed rules.
)
5.
The first two full sentences on p. 17 are not consistent with the proposed rules.
Proposed section 2.204 imposes obligations on persons to respond to a " Demand to show cause."
l 6.
The wording of proposed section 2.202(c)(3) suggests that consideration of a motion to set aside the immediate effectiveness of an order can also be suspended.
f.
Assuming that that is not the intent, the rule should be reworded and clarified to eliminate any potential confusion in this regard.
i 7.
The summary (p.1), which is almost identical to that in SECY-89-321, should make some reference to the newly i
proposed mechanism for challenging the immediate effectiveness of an enforcement order.
8.
T' rules should be gender-neutral.
- See, e.g.,
proposed etion 2.20.'(a)(3), (c)(2).
cc William C. Parler, LGC N.
B. Paul cotter, Jr., ASLBP Samuel J. Chilk, SECY t
L 4
e-
-.v m
~, -, _ _ _
r
ll I
g o t a rug'*
I UNITED STATES
[
g NUCLEAR REGULATORY COMMISSION WASHINGT ON, D. C, 20566 i
August 23, 1990
}
3
' ~
MEMORANDUM FOR:
NUDOCS Document Control Desk P1 White Filnt
/
FROM:
Linda Lessler fM p
Office of the General Counsel o
SUBJECT:
DOCUMENTS COMPRISING REGULATORY HISTORY -
l~
AD60-1 l
l The enclosed document was inadvertently excluded fros.the i
regulatory history package sent to NUDOCS on Legust 22.
This document should be placed in the PDR.
l If there are any questions about these documents please feel free to contact me on extension 21612.
j Thank you for your assistance.
[
Enclosure:
[i As stated j
u.pii,,,,.. -
e ROUTING - REQUEST Please b READ-To -
k
~
HANDLE d,#fA.u d/
$M j
v r
-., - - +,., +
-