ML20058K431
| ML20058K431 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 06/13/1990 |
| From: | Curtiss NRC COMMISSION (OCM) |
| To: | Carr, Roberts, Rogers NRC COMMISSION (OCM) |
| References | |
| AD73-1-11, COMJC-90-005, COMJC-90-5, NUDOCS 9007060026 | |
| Download: ML20058K431 (3) | |
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June 13, 1990
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OFFICE OF THE COMJC-90-5 COMMISSIONE R MEMORANDUM FOR:
Chairman Carr Commissioner Roberts Commissioner Rogers Commissioner Remick FROM:
Commissioner Curtis
SUBJECT:
ATOMIC SAFETY AND LICENSING APPEAL PANEL From a preliminary review of the Controller's draft evaluation of workload and resource requirements for the Atomic Safety and Licensing Appeal Panel, it is clear that the nature of the appellate litigation within the agency is undergoing substantial change.
Once the Appeal Panel completes its work on pending appeals.in the Seabrook proceeding, appeals in construction permit and operating license proceedings for the existing generation of nuclear powerplants -- the mainstays of appellate litigation within the agency for many years -- will have drawn to a close.
Al the same time, consistent with the shift in the agency's regulatory focus from licensing new power reactors to overseeing the day-to-day operations of reactor and materials licensees, NRC's administrative litigation in the foreseeable future will involve reactor license amendments, materials licensing, enforcement matters, and power reactor license renewals.
The impending completion of the last major operating license proceeding, as well as the shift in the fundamental character of agency litigation, presents the Commission with an excellent opportunity to restructure the NRC's appellate process to address some of the criticisms that have been directed to that process over the years.
In order that the Commission might increase its direct involvement in agency adjudications', provide earlier
' A major finding of the Kemeny Commission in its assessment of institutional infirmities after the TMI-2 accident was that:
(t]he NRC commissioners have largely isolated themselves from the licensing process.
Although the commissioners have adopted
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unnecessarily stringent ex carte rules to preserve their adjudicative impartiality, they have also delegated most of their adjudicative duties to the Atomic Safety and Licensing Appeal Board.
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regulatory and policy guidance in litigation, remove some of the overly-judicialized, fprmal appellate procedures that have evolved over the years, and perhaps save some resources in the Renort of the President's Commission on the Accident At Three Mile Island, October 1979, Main Report, p.
51.
The Rogovin Special Inquiry Group had similar criticisms:
Although the NRC itself, under the law, is the final administrative decisionmaker in the licensing and regulatory process, it has delegated substantially all of that authority to the Atomic Safety and Licensing Appeal Board Although one might expect the NRC as a collegial body to play a substantial role in significant licensing determinations regarding individual plants, that is not the case.
In practice, NRC consideration of appeals from the appeal board is rare; the appeal board generally has the final word on issues raised before it.
Three Mile Island - A Report to the Commissioners and to the Public, January 1980, Vol.
2, Part 1,
- p. 13.
Few of the changes to the NRC's regulatory process following the TMI-2 accident addressed the criticisms.
2 Despite the Commission's admonition that adjudicatory boards should promptly seek Commission guidance when they encounter significant legal or policy questions in the course of an adjudication, Statement of Poliev en Conduct of Licensina i
Proceedinas, CLI-81-8, 13 NRC 452, 456 (1981), the boards generally have been reluctant to ask for the-Commission's views l
on such issues.
This reluctance to seek Commission guidance early on has resulted in needless litigation, seemingly endless cycles of appeals, remands and relitigation, and substantial delay in the resolution of important legal and policy issues _in a number of cases over the last ten years.
A case in point is the manner in which the adjudicatory boards and the commission handled the development of the " realism" doctrine in the Shoreham i
proceeding, with Commission guidance on this most important policy question coming nearly two years years after the issue was first identified as a significant concern in the adjudicatory proceeding.
I 3 The NRC's internal appellate process is prescribed in a series of procedural regulations at 10 CFR $s 2.714a, 2.715(c) and (d), 2.718(i), 2.730(f), 2.760, 2.762, 2.763, 2.764, 2.770, 2,771, 2.785, 2.786, 2.787 and 2.788.
These regulations and a very large number of interpretive rulings issued over many years 1
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>J long term, I would propose that we abolish the Appeal panel and, in its placa, establish a mechanism for direct review of Licensing Board decisions by the Commission.
To accomplish this, I would propose that the Commission begin an orderly phase-out of the Appeal Panel and its functions, with the ultimate objective of abolishing the Appeal Panel once the rights of the parties to pending appeals have been preparly acco.smodated.
To ensure a proper and orderly phase out of the Appeal Panel, I would propose that we direct the Office of General Counsel to providet 1.
a transition plan to phase out the Appeal Panel, taking into account the procedural rights of parties to pending proceedings to pursue appeals before the Appeal Board; 2.
a discussion of the options for direct Commission review of Licensing Board decisians; and 3.
recommended changes to the procoeural regulations in 10 CPR Part 2 to reflect the tbolition of the Appeal Panel and the establishme'at of a mechanism for direct commission review of Licensing Board decisions.
These evaluations and recommendations should be provided in a timeframe that would allow the Commission to terminate the Appeal Panel when the Panel's work on currently pending appeals is completed.
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l have established a body of procedural requirements governing NRC appellate review that is comparable to those applicable in most appellate courts.
Interpretive rulings in particular have resulted in detailed procedural requirements on matters such as the format and content of appellate briefs, the timing of motions for extensions of time on briefs and the matters to be addressed in motions to postpone oral arguments. See, e.a.,
Public Service Electric & Gas Co. (Hope Creek Generating Station, Units 1 & 2),
ALAB-3 9 4, 5 NRC 769, 771 n.2 (1977); Louisiana Power & Licht Cgz (Waterford Steam Electric Station, Unit 3). ALAB-117, 6 AEC 261 (1973); Philadelchia Electric Co. (Peach Bcttom Atomic Power Station, Units 1 & 2), ALAB-165, 6 AEC 1145 (1973).
This sort of extreme proceduralization of an administrative appellate process has been widely criticized -- and properly so, in my view.