ML20059F139
| ML20059F139 | |
| Person / Time | |
|---|---|
| Issue date: | 07/02/1990 |
| From: | Kohl C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | Curtiss NRC COMMISSION (OCM) |
| Shared Package | |
| ML20059F131 | List: |
| References | |
| CCS, NUDOCS 9009110102 | |
| Download: ML20059F139 (8) | |
Text
-
3 y,
"*kk fyt UNITED STATES p,..
y ' *. 8
-e:
NUCLEAR REGULATORY COMMISSION
.t-
= ATOMIC SAFETY AND LICENSING APPEAL PANEL W ASHING TON, D.C. 20046
'l July 2, 1990 f
_ MEMORANDUM _FOR:
Commissioner Curtiss ChristineN.Kohicyhi-
'FROM:
Chairman Atomic Safety and Licensing Appeal Panel
SUBJECT:
ATOMIC SAFETY AND-LICENSING APPEAL PANEL-
,a p
In a. telephone call last Thursday afternoon (June 28),
youLadvised me that the Commission had unanimously-approved' your June.13,-1990,-proposal to-abolish the Appeal Panel.
COKJC-90-005 (June-29, 1990) memorializes that action.
.Because I had not seen the proposal, you: subsequently sent Eme a copy of your. June 13 memorandum, in which you set..forth the reasons /for this-action.
Although_our telephone conversation covered a lot of ground and generalities,:you invitedcay further comments on the= proposal itself.
Despite the essentially academic: nature of-the debatelat this point, I appreciate and welcome-that-opportunity; nasmuch as your 1
memorandum raises?some specific points that,if-only for the record.py view, in r
warrant direct response, y
The memorandum cites three principal-reasons for L
abolishing.the Appeal Panel:.
(1)' it.will provide lui opportunity:for the Commission toLincrease its direct involvement,in agency adjudications; (2)'the Commission will' 4
be ableito provide-earlier regulatory and policy guidance in l-l 1 Much to my surprise, your. memorandum indicates that-
+
the Commission had'the controller's recent workload / resource L
evaluation of the Appeal Panel. prior to its formal submittal to'.the Commission on: June 22, 1990.
This.unfortunately provides another example of the poor. communication,-or lack thereof, within the agency.
The Controller's staff had
' repeatedly' assured me that the report-would not be
-transmitted to the Commission or anywhere else until the EDO-signed off on the final version.
I sTs even denied a copy-of the-final 1 report until after its fermal transmission to the Commission on June 22.
I thus had every reason to expect that the actual debate about the Panel's future would officially begin after that time, with opportunity _for my input.
90091101o29009h PDR ORO NdFg PDC
,s o
,s jc u
r 2
i litigation; and (3) it will-remove some of tho'" overly-judicialized, fo i
over~the years."{ mal appellate procedures that have evolved o
The memorandum goes on to provide.a l
number of specific examples as support for these general points.
I respectfully disagree, however,.that'either the p
general arguments or the examples cited provide any
?
justification for the abolition of the Appeal Panel.
Excerpts from the Kemeny and~Rogovin reports following the.1979 Three Mile Island accident are cited as support for greater commission-involvemerit in agency adjudications.
To be sure, that was indeed the conclusion of both reports.
It' does not follow, however, that greater commission r
involvement necessarily requires the L abolition. of the Appeal.
l Panel.
On the contrary, neither the Kamenv nor the Doaovin
-l recort recommended abolishina the Aeoeal Panel, end both-took exolicit note of the Panel's efforts to imorove the:
L adiudicatory and reaulatory orocess.
For example, the Rogovin report found that The NRC's failure to. meet its
. responsibility to provide a complete and unambiguous. set of regulations has
,1 exacerbated the appeal board's difficult I
tasks.
The appeal board for years has devoted a good deal of its time and effort to interpreting the NRC's substantive regulations and their application to the facts of record.
4 (Footnote omitted.)
The board and others have for years' pointed out that
- any of the regulations are' ineptly
.raf ted --E some to the point r f being-virtually incomprehensible.-- and.that others have quite obvious gaps in them.
None of these findings have resulted in any substantial overall corrective-action from the NRC, however.
2 The memorandum also notes that there might be some resource savings in the.long term,.but.you indicated in our telephone conversation that the decision to abolish the Panel was not a resource or budget-driven' decision.
Nor does the controller's report' support that' rationale.
Indeed, the report concludes (at 12) that Additional resources would be req' tired if the Appeal Fanel,is abolished end the commission exercises the functions currently performed by'the Panel "because the function would be performed less efficiently."
l i
--,m
,. _ _ >... ~. _, _.,, _
e 3
l Three Mlle Island - _ A Report to the Commissioners and to the Pablic (January 1980), Vol. II, Pt. 1, at 13.
Although the Xemeny report recommended abolishing the five-member r
Commission in favor of k single administrator, it explicitly contemplated the continuation of the Appeal Panel.
For instance, it recommended " provision for the initial-adjudication of license applications and for appeal to a board whose decisions would not be subject to further appeal to the administrator."
The report then added:
"Both initial adjudicators and appeal boards should have a clear mandata to pursue any safety issue, whether or not it is raised by a party."
Reoort of the President's Commission on the Accident at Three Mile Island (Octeber 1,79) at 65-66.
A further recommendation for the establishment of an
" objective" Office of Hearing Counsel stated that such office "should be empowered to appeal any adverse licensing board determination to the appeal board."
Id. at 66.
- Thus, support for abolishing the Appeal Panel cannot be found in, either the Rogovin or Keneny reports; quite the contrary is true.
I also respectfully take exception to the statement in footnote 2 of your memorandum that the boards have generally been reluctant to seek the Commission's guidance on significant legal or policy questions.
Appeal Boards have cought the Commission's guidance on numerous occasions, particularly in the last few years.
Mindful of the Commission's other significant responsibilities, as well as the Commission's rule generally precluding all interlocutory review (10 C.F.R. I 2.730(f)),. however, Appeal Boards have been judicious in the matters they have brought to the Commission's attention.
- See, e.g., Pacific Gas and Electr12 C22 (Diablo Canyon Nucler~ 'ower Plant, Units: 1 and 2),
ALAB-681,.16 NRC 146 (198k; igna Island Liahtina Co.
(shoreham Nuclear Power Station, Unit 1), ALAB-769, 19 NRC 995 (1984); General Public Utilities Nuclear Corn. (Three Mile Island Nuclean Station, Unit No.1), ALAB-881, 26 NRC 465 (1987); Lena island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-908, 28 NRC 626 (1988); Vermont Yankee Nuclear Power Coro. (Vermont Yankee Nuclear Power Station), ALAB-319, 30 NRC 29 (1989); Public Service Co, of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-920, 30 NRC 121 -(1989) ; Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-9 2 2, 30 NRC 347 (1989).
Cf. Vermont Yankee Nuclear Power Coro. (Vermont Yankee Nucleer Power Station), ALAB-876, 26 NRC 277, 285 (1987) (certl fication not necessary because issue involved was already pending before the Commission in connection with party's petition for review), Commission review declined (March 17, a988).
Further, I cannot recall any instance in which the Coh31ssion has criticized the Appeal Board for D91
-i---,,,
)
4 l
certifying an issue to the Commission for its guidance or ruling.
]
in any event, as was recently stressed in the
,I Commission's own decision in Public Service Co. of New L
Hampshire (Seabrook Station, Units 1 and 2), CLI-90-3, 31 NRC 219, 229 (1990), there is nothing to preclude the Commission under the presen?. system from taking the initiative and stepping into any adjudicatory proceeding at any time to provide guidance or to decide a matter in the i
I first instance.
It is my understanding that for a number of years the General Counsel's office has monitored all major
- adjudicatory proceedings and submitted monthly reports to the Commission, highlighting potentially significant_and troublesome issues that might warrant Commission attention and action.
In addition, the Commissioners have both legal L
and technical assistants who could, and perhaps do, perform this function.
On this score, I do not believe that the development of the " realism" doctrine, presented in your memorandum as an d
example of the failure of the adjudicatory process, provides a reason for the abolition of the Appeal Panel.
The so-called' realism doctrine was developed over a period of time by the acclicant (LILCO) in the Shoreham proceeding and was first presented to the Licensing Board in a motion for summary disposition on August 6, 1984.
The Licensi'ng Board rejected this theory in 2 lengthy partial initial decision on numerous issues, rendered on April 17, 1985.
Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-85-12, 21 NRC 644, 909-12.
This matter first came to the Appeal Board'y attention when LILCO appealed that Licensing Board ruling.
Af ter af fording LILCO and the other parties the necessary time to brief and argue orally this issue and the many others raised on appeal, the Appeal Board issued its " realism" ruling (along with its disposition of numerous 3 Your memorandum seems to imply that Appeal Boards had b
an obligation to oversee Licensing. Board proceedings and should hav6 presumed to bring to the Commission's attention significant issues while they were still s',olving.
The Appeal Panel, which historically has had only about one-third the employees of the Licenring Board Panel, has never had the resources to devote to asy significant monitoring of substantive issue development before the Licensing Board.
Thus, Appeal Boards have rarely done so and, when they have, it has been viewed by the Licensiny Board as improper and unnecessary interference.
Further, as noted above, this would have been a duplication of effort, inasmuch as the General Counsel's Office was already performing this function.
s
-. -..., _. _ _ _ _ _ -.. _ _ ~ ~ ~ - -. -,
[
(
other issues) exactly six months af ter the Licensing Board's decision.
The Appeal Loard affirmed the Licensing Board, stressing that the pr!ncipal flaw in LILCO's' argument was j
the total lack.cf -nv avidentiary record to back-up LILCO's j
claim that the State and County, despite their public
~
statements to the contrary, wou',d act to protect the public
)
in the event of a radiological er.craency at the Shoreham i
facility.
ALAB-818, 22 NRC 651 673-76 (October 18, 1985).
i LILCO petitioned for review of the Appeal Board's decision.
More than nine months later, the Commission addressed two of L
the issues decided in ALAB-818.
The Commission reversed the Appeal Board's (and the Licensing Board's) decision on realism, stating for the first time that a utility's emergency " plan should be measured against a standard that i
would require protective measures that are generally j
comparable to what might be accomplished with governmental
]
cooperation."
CLI-86-13, 24 NRC 22, 32 (July 24, 1986).
i The Commission, however, agreed with the Appeal Board that 1
the evidentiary record on this subject was deficient and remanded the matter to the Licensing Eoard for the necessary additional record development.
Id. at 32, 33.
The Commission, however, did have an earlier opportunity in the Shoreham proceeding to address the broader issue from which the realism doctrine grew -- i.e.,
l state and local government nonparticipation in radiological l
emergency planning.
On April 20, 1983, the Licensing Boara referred to the Appeal Board a ruling denying Sufiolk f
County's motion to terminate the proceeding for lack of -
County emergency response plan.
See LBP-83-21, 17 NRC 593, and LBP-83-22, 17 NRC 608.
In an unpublished order (attached hereto) issued on April 26, 1983, the Appeal Board referred this matter and another to the Commission for disposition in light of then-recently expressed views by the agency before Congress.
The Commission accepted the referral and answered the Licensiny Board's question on May 12, 1983, but only in part.
The Cormission stated:
l We express no opinion at this juncture whether it will be possible for the util.ity to meet this burden (i.e.,
L compliance with all applicable NRC L
regulatory standards for emergency L
planning, in the absence of local government participation); there is no evidentiary record before us upon which i
to provide any such opinion.
That record should be compiled, in the first instance, by the Licensing Board, subject to later appellate review by the Atomic Safety and Licensing Appeal Panel and the Commission.
I
+
l c
+..
l l
\\
6 i
CLI-83-13, 17 NRC 741, 743 (1983).
See also id. at 744 (separate view of Commissioner Gilinsky that "the commission has failed to deal with the actual issue in this case").
l Thus, as I read the record, the delay in the evolution of LILco's " realism" theory was occasioned by LILCO's own failure to have supplied the necessary record and other support for its position -- a point cn which both j
adjudicatory boards and the Commission itself all agreed.
?
No one would contend that the development of the " realism" doctrine is an example of a " great moment in federal
-j decisionmaking."
But, in my view, neither is it evidence of
.]
any f ailure on Lhe Anneal Panel's cart, and, most assuredly, i
it does not provide support for the Panel's abolition.
]
Finally, your memorandum criticizes the " overly-3 judicialized, formal appellate procedures that have evolved over the yearr" and focuses on "a.very large number of interpretive culinge" by Appeal Boards, citing three such rulings.
fr.e decisions cited were issued 14 to 17 years cgo, during the Panel'? early. years when its processes were still under development.
In my view, however, these i
decisions and other more recent procedural rulings simply
}
l set forth prhetical, common sense rules that enhance ths orderly, ef ficient, and evenhanded conduct of _ bus.im ss --
irrespective of whether that business is formal or informal adjudication.
Despite your comment that these and other procedural rulings have been "widely criticized -- and i
properly so." this is the first occasion in my ten-year j
cl' association with the Commission on which I have heard any 4
such criticism.
In fact, the overwhelming majority of the Appeal panel's " interpretive" procedural rulings-were made in response to the complaints of applicants' counsel and have long been [atified, implicitly if not explicitly, by i
the commission.
The cited footnote in the decision in Public Service Electric and Gas Co. (Hope Creek Generating Station, Units 1 and 2), ALAB-394, 5 NRC 769, 771 n.2 (1977), merely puts future parties to agency proceedings on notice that their appellate papers should contain a brief statement of the facts relevant to the dispute on appeal.
This can hardly be construed as a burden and is wholly consistent witu the
+
Commission's consistent position over the years that thw parties, in particular intervenors, must be specific and
'.The Commission itself has recently added further procedural requirements to the Rules of Practice.
54 Fed.
Reg.-33,168 (1989), Detition for review Dendina, Union of concerned Scientists v. HEg, No. 89-1617 (D.C. Cir.).
-,_.,,.-.m,,..,...._...%,-_
t o
~
i 7
s clear in their presentations to the agency.
I would add, however, that I know of no instance in which a party's i
filing with the Appeal Board was summarily rejected due to its failure to include a statement of facts.
l Louisiana Power & Liaht Co. (Waterford Steam Electtic f
Station, Unit 3), ALAB-ll7, 6 AEC 261 (1973), just filled what was then a gap in the agency's Rules of Practice (subsequently addressed in 10 C.F.R. Part 2, App. A, i IX (d)(4)) by stating what may have been obvious to the i
experienced legal counsel who usually represent applicants,
.but was not necessarily apparent to the RIS 11 intervenors in the agency's proceedings.
That is, a request for an extensica of time should be filed with the agency and served on opposing parties at least one day before the due date of the document for which the extension is requested.
The need for the expeditious conduct of the agency's adjudications was explicitly cited as the reason for this " interpretive ruling."
It was also issued in response to the complaints of the utility / applicant's counsel about the intervenor in the waterford preceeding.
I am frank to state that I do not see the controversy or any "over-judicialization" in this common sense rule.
The last example given of the Appeal Board's assertedly overly formal procedures is another 1973 decision, Philadelchia Electric co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-165, 6 AEC 1145 (1973).
That L
decision also sets out a common sense rule of conduct --
namely, when a party seeks a change in the scheduled date of oral argument, it should explain why that is necessary and indicate when the need for the date change first arose.
L This ruling was rendered in the context of a request for s postponement 48 hourr in advance of an argument before the Appeal Board.
The record shows that the Board tentatively set a date for argument a month in advance and solicited the parties'. objections thereto.
No one objected, despite the fact that the parties then knew there was a significant I
possibility that they might all be involved in a Licensing Beard hearing in an entirely different proceeding on that date.
The Peach Bottom decision simply advises'all litigants that their participation in the agency's proceedings carries with it certain obligations.
It has been my belief that the Commission has long shared that view.
I thus make no apologies for these or any other Appeal Board procedural ruling, particularly those published as ALABs and having precedential value.
Any efficient and fair decisionmaking body -- especially one that must deal at arm's length with adversary parties and highly controversia3 issues -- needs clearly defined. procedures that can be 4
.--,,.-..n_.
.aw.-,,-,-,n..
.-.---4
l 8
located in publicly available information sources (such as l
published decisions) and is obliged to follow much procedures consistently.
See generally Administrative Procedure Act, 5 U.S.C. I 552(a).
I have not the slightest doubt that, once the Commission assumes day-to-day.
involvement in adjudicatory activities, it will find common sense rulings like those discussed above not only useful, but necessary.
Unfortunately, drawing attention to these and other procedural rulings conveys the impression, however unintended, that the Appeal Panel has spent the last two decades dwelling on minutiae.
The breadth and number of significant technical and legal issues addressed in the nearly one thousand published opinions of the Panel -- only a handful of which were ever. overturned by either the Commission or the courts -- prove otherwise.
Attachment:
As statcd cc Chairman Carr Commissioner Rogers Commissioner Remick William C.
Parler, OGC James M. Taylor, EDO SECY t
m
=
UNITED STATES OF AMERICA J
NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL PANEL j
1 Alan S. Rosenthal, Chairman e
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322 OL
)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
ORDER l
April 26, 1983 On April 20, 1983, the Licensing Board eatered two orders in this operating license proceeding involving the Shoreham f.'cility located in Suffolk Count </, New York.
In one of those orders, 1 the Board denied the motion of that County (an intervenor) to terminate the proceeding.
In the other order, S the Board both (1) referred its ruling on she' motion to us for interlocutory appellate review under,10 c
CFR 2.730 (f) and (2) certified (through us) a related issue
\\
to the Commission for its interlocutory consideration (see 10 CFR 2. 718 (i)).
1 1/
LBP-83-22, 17 NRC p
l 2/
LBP-83-21, 17 NRC
~~
B#
s
+
0 2
In ordinary circumstancer an eppeal board would have been promptly established for the purpose of examining the referred ruling and, if satisfied that interlocutory review 1
of it was warranted, then passing judgment on it.
It appears, however, that, some six days before the Licensing Board issued the two orders and in response to specific l
questions posed by a Senate committee, the Commission itself addressed in large measure the very legal issues encompassed by the referred ruling.
See Commission response to
[
multipart Question 7, furnished in connection with " Prepared Testimony submitted by Nunzio J.
Palladino, Chairman, United States Nuclear Regulatory Commission, to the Subcommittee on Nuclear Regulation, Committee on Environment and Public Works, United States Senate, Concerning Emergency Preparedness," dated April 14, 1983.
As the Licensing Board noted in a memorandum issued earlier today in which it served the response to Question 7 upon the parties to the proceeding, at the time it entereo its orders it was not aware of either the existence of the congressional testimony or the substance of the Commission's views expressed therein.
Had it known on April 20 that the Commission had spoken on the subject (albeit in a non-adjudicatory context), the Licensing Board likely would not have referred its ruling on the County's motion -- at least not to an appeal board.
Be 9
l
e 9
3 that as it may, no good reason exists for the expenditure of appeal board time and resources in the examination of issues that have previously received both Commission attention and a response now a matter of public record.
Rather, the proper course is simply to transfer the referral to the Commission for wha +.ever further consideration, if any, it might deem justified.
As contemplated by the Licensing Board, the related certified question is also passed on to the Commission for such disposition as may be warranted.
It is so ORDERED.
FOR THE APPEAL PANEL CHAIN 0W Q, N M _- - A - h C.Jgsns.5oemaker becre.ary to the Appeal Panel This action was taken by the Appeal Panel Chairman ur. der the authcrity of 10 CTR 2.787(b).
t t
t I