ML20126E068
| ML20126E068 | |
| Person / Time | |
|---|---|
| Site: | 05000000 |
| Issue date: | 05/15/1984 |
| From: | Plaine H NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Gilinsky, Palladino, Roberts NRC COMMISSION (OCM) |
| Shared Package | |
| ML20126D950 | List: |
| References | |
| FOIA-84-942, FOIA-85-A-5 NUDOCS 8506150285 | |
| Download: ML20126E068 (5) | |
Text
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CASHINGTON, D. C. 20084 y....j May 15, 1984 MEMORANDUM FOR:
Chairman Palladino Commissioner Gilinsky Commissioner Roberts Commissioner Asselstine Commissioner Bernthal FROM:
Herzel H. E. Plaine J-General Counsel L L
SUBJECT:
REMOVAL OF ASLB MEMBER FROM HEARING Enclosed is a memorandum providing information -(based on a brief examination of the law) regarding th emoval of Licensing Board members from a proceeding,
Enclosure:
As stated cc:
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BELAIR85-A-5 PDR i
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Contact:
Trip Rothschild, OGC, 41465 U
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DISQUALIFYING OR REMOVING ADMINISTRATIVE LAW JUDGES DURING A PROCEEDING Section 191 of the Atomic Energy Act i
Under Section 181 of the Atomic Energy Act, the provisions of the Administrative Procedure Act were made applicable to the Commission.
By amendment, Section 191 of the Atomic Energy Act authorized the Commission to establish atomic safety and 1
licensing boards.
The legislative history underlying that section makes clear that even though the Commission was no longer required to use administrative law judges, the APA provisions relating to the relationship between the judges (including judges who constituted the panels), and the agency were applicabi'e.
The Joint Committee on Atomic Energy report stated:
The great bulk of the provisions of the Administrative Procedure Act will remain applicable, pursuant to section 181 of this act, and the only exceptions authorized by these amendments are to permit the Board to preside at hearings in lieu of a hearing examiner, and to permit the Board to render final as well as intermediate decisions.
Report No. 1966 on H.R.
12336, 87th Cong., 2d Sess. at 7 (July 5, 1962).
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Administrative Procedure Act i
Section 5 U.S.C.
556(b) provides:
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.1 A presiding or participeting employee may at any time disqualify himself.
On the filing in good faith of a timely and sufficient affidavit of personal bias or other disqualification of a presiding or participating employee, the agency shall determine the matters as a part of the record and decision in the case.
In Marcus v. Director, Office of Worker's Compensation Programs, 548 F.2d 1044. _(D.C. Cir.1976) the court explained this provision:
Whereas disqualification is mandatory under section 554 (d) of the APA, 5 U.S.C.
S 554 (d) (1970), whenever a govern-ment employee or official would otherwise combine both prosecutorial and adjudicatory functions, disqualification under section 556 (b) is entirely voluntary, although a
_ decision not to disqualify oneself may be subject to subsequent review by the agency."
(Emphasis supplied) s The Attorney General of the United States issued an opinion on January 18, 1977 which addressed whether the Department of Interior could reprimand an administrative law judge.
43 Att'y r-Gen. Op. No. 9..
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- However, he asserted that the " clear legislative prescription f indepen-dance of adjudicatory action clearly does prevent the use of I
reprimand as a means-of effe.cting, controlling or sanctioning an administrative-law judge's-decision'in a formal.APA procee' ding."
M. at p. 6.
The remedy is on review by the appellate body of the agency.
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wanias osuct om mama (202) 452-7023 HAND DELIVERED Director FREEDOM OF INFORWTION Office of' Administration ACI REQUEST g
U.S. Nuclear Regulatory Commission FOT A-SL-h[1 Washingto$, D.C.
20555 d W[tay/64 i
Subject:
Freedom of Information Reque Gentlemen On behalf of our client, Suffolk County, we request pursuant to the Freedom of Information Act, as amended, 5 U.S.C. S 552
("FOIA"),' and the rules of the Nuclear Regulatory Commission ("NRC")
issued thereunder, 10 C.F.R. Part 9, copies of written materials in the possession or control of the NRC, whether in the Commissioners' offices, the Office of General Counsel, the Office of Policy Evalua-tion, the Office of the Executive Director of Operations, or any other NRC of fice, which relate in any manner whatsoever to the is-sues discussed in "CLI-84-8" -- a May 16, 1984 Commission order per-taining to exemption requirements in the Shoreham operating license proceeding.*
Without limiting the scope of this request, but merely to assist the NRC in its search, the materials that we are requesting may incluide the following:
1.
Transcripts and/or notes of any meetings attended i
by the Commissioners and/or by NRC Staff and/or by other persons at which issues addressed in CLI-84-8 were discussed.
Suffolk County has already obtained copies of the transcripts of the May 7 oral argument before the Commission and the Commission's Shoreham meetings of April 23, 24, 26 and 27.
Therefore, copies of these transcripts need not be produced except to the extent that the NRC has possession or control of transcripts which have handwritten notations thereon.
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KRKPATIUCK k LOCKHART U.S. Nuclear Regulatory Commission Page 2 December 21, 1984 3E 2.
Any materials relating to the "as safe as" standard adopted in CLI-84-8, including any materials which relate to whether the "as safe as" standard will affect the application of the provisions in 10 C.F.R. S 50.47(d) to the Shoreham low power exemption proceeding.
I 3.
Any materials relating ~to whether to replace the Licensing Board for low power matters chaired ~ by Marshall E. ' Miller, Esq., and any materials relating to the Miller Board's in-volvement in the Shoreham proceeding.
In the event that access is denied to any part of the re-quested materials, please supply the following information:
}.
A.
Identify the withheld or deleted material and specify the statutory basis for the denial, as well as your reasons for believ-ing that an exemption applies, as required by 10 C.F.R. S 9.10 (b).
B.
Segregate the non-exempt from the allegedly exempt portions of all materials and release the former, as required by 10 C.F.R. S 9.5 (b).'
C.
Supply a detailed statement of the content of the withheld or deleted material, along with the date on which the material was written; its title or section heading; its author; the author's title; and the identification of any persons or entities who have received copies of such material, as required by applicable case law.
Vaughn v. Rosen, 484 F.2nd 820, 826-27 (D.C. Cir. 1973).
D.
Separately state your reasons for not invoking your discretionary power to release the allegedly exempt materials.
10 C.F.R. S 9.9.
The undersigned is willing to inspect the requested material prior to its reproduction in order to identify specific material for reproduction.
i IdIOCFATRICK & LOCKHART U.S.. Nuclear Itagulatory Comunission Page 3 December 21, 1984 I
The undersigned will pay charges for search time and copying j
fees, as provided by NRC regulations at 10 C.F.R. 5 9.14.
If search l
and copying fees to be incurred by the undersigned will exceed $500, please notify the undersigned before this sum is exceeded.
~We expect to receive your response to this FOIA request with-in ten (10) working days of your receipt of this request, as required under the FOIA and as set forth at 10 C.'F3R. S 9.8...
Sinceredy, M
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Robert R air j
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Office of Administration ACI REQUEST U.S. Nuclear Regulatory Commission Fot A-s'- 9 Y2.
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20555 Act Reque i
Subject:
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Gentlemen:
1 On behalf of our client, Suffolk County, we request pursuant
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to the Freedom of Information Act, as amended, 5 U.S.C. S 552
("FOIA"), and the rules of the Nuclear Regulatory Commission ("NRC")
issued thereunder, 10 C.F.R. Part 9, copies of written materials in the possession or control of the NRC, whether in the Commissioners' 4
offices, the Office of General Counsel, the Office of Policy Evalua-j L
tion, the Office of the Executive Director of Operations, or any i
other NRC office, which relate in any manner whatsoever to the is-
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sues discussed in "CLI-84-8" -- a May 16, 1984 Commission order per-y l
taining to exemption requirements in the Shoreham operating license j
proceeding.*
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l Without limiting the scope of this request, but merely to E
assist the NRC in its search, the materials that we are requesting
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f, may include the following:
g l.
Transcripts and/or notes of any meetings attended h
f' by the Commissioners and/or by NRC Staff and/or g
by other persons at which issues addressed in CLI-84-8 a
were discussed.
1
- Suffolk County has already obtained copies of the transcripts of l
the May 7 oral argument before the Commission and the Commission's Shoreham meetings of April 23, 24, 26 and 27.
Therefore, copies of i
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these transcripts need not be produced except to the extent that the
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NRC has possession or control of transcripts which have handwritten notations thereon.
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KRKPATRICK & LOCKHART 1
U.S. Nuclear' Regulatory Commission Page 2
' December. 21, 1984 L
2.
Any' materials relating to the "as safe as"
[
standard adopted in CLI-84-8, including any
. materials which relate to whether the "as safe as" standard will affect the application of the
. provisions in 10 C.F.R. S 50.47(d) to the Shoreham low power exemption proceeding.
3.
Any materials relating to whether to replace the Licensing Board for low power matters chaired by Marshall E. Miller, Esq., and any
' materials relating to the Miller Board's in-volvement inLthe Shoreham proceeding.
^
In'the event that access is denied to any part of the re-quested materials, please supply the following information:
t' A.
Identify the withheld or' deleted material and specify the statutory basis for the denial, as well as your reasons for believ-ing that an exemption applies, as required y
by 10 C.F.R.- S 9.10 (b).
B.
Segregate the non-exempt from the allegedly exempt portions of all materials and release the former, as required by 10 C.F.R. S 9.5(b).
e C.
. Supply a detailed statement of the content of the. withheld or deleted material, along with 4 -
the date on which the material was written; its-title'or section heading; its author; the author's title;'and the identification of any persons'or entities who have received copies j --
of such material, as required by' applicable i
- case law.- Vaughn v. Rosen, 484 F.2nd 820,.
I 826-27 (D.C. Cir. 1973).
l D.
Separately _ state your reasons for not invoking
[
your discretionary power to release the allegedly exempt materials.
10 C.F.R. S 9.9.
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- The undersigned is willing to inspect the requested material' prior to its reproduction.in order to. identify specific material for q]l reproduction.
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U.S. Nuclear Regulatory. Commission
- Page 3 December 21, 1984 The undersigned will pay charges for search time and copying fees, as provided by NRC regulations at 10 C.F.R. S 9.14.
If search and copying fees to be incurred by the undersigned will exceed $500, please notify the undersigned before this sum is exceeded.
We expect to receive your response to this FOIA request with-in ten (10) working days of your receipt of this request, as required under the FOIA and as set forth at 10.C.~
R. S 9.8 7 e
Sincere y, 1
Robert R.
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