ML20210D799
| ML20210D799 | |
| Person / Time | |
|---|---|
| Issue date: | 04/26/1999 |
| From: | Mcgaffigan E NRC COMMISSION (OCM) |
| To: | Hoyle J NRC OFFICE OF THE SECRETARY (SECY) |
| Shared Package | |
| ML20210D778 | List: |
| References | |
| SECY-99-006-C, NUDOCS 9907280027 | |
| Download: ML20210D799 (4) | |
Text
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NOTATION VOTE RESPONSE SHEET TO:
John C. Hoyle, Secretary FROM:
COMMISSIONER MCGAFFIGAN
SUBJECT:
SECY-99-006 - RE-EXAMINATION OF THE NRC HEARING PROCESS Approved Y
Disapproved Abstain Not Participating g
,hy COMMENTS:
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Entered on "AS" Yes (
No ES7*!om*s $8c22 CORRESPONDENCE PDR 9 99 72 yod 2,7 i
v Commissioner McGatfigan's Comments on SECY 99-6:
OGC's thorough and useful research and analysis has confirmed that the law gives us considerable flexibility to adopt hearing policies that we think makes sense. OGC has also given us useful advice about a wide range of policies. In light of this material, I believe we should retain formal adjudication for enforcement cases, through rulemaking pursue informal procedures for licensing cases, and seek legislative confirmation of our interpretation of the law. In the meantime, with the help of the licensing boards, we must maintain the agency's increased discipline in adjudications.
Enforcement: We should retain formal processes for enforcement cases. The main use of formal processes throughout federal agencies is for just such cases, because formality affords the accusea the means of active self-defense.
Rulemaking: We should make use of the flexibility given us by current law to institute by rulemaking informal procedures in all licensing cases, both materials and reactors.
Historically, some have thought that formal procedures assured more complete resolution of complex issues, built public confidence, and produced licensing actions that were more defensible. However, at this point it is not clear that any of these three things is true. First, complex technical issues, especially at our fellow technical agencies, are well decided all the time in government and the private sector without the use of cross-examination and discovery. Pointing to the statutes that subject EPA to
" citizens' suits," some have argued that if the agency doesn't do formal adjudication of technical issues, the courts will do it for us. I don't agree. " Citizens' suits" are enforcement driven; they parallel our 2.206 process,'not our licensing actions, and therefore do not "make up" for an absence of adjudication. Pointing to litigation of technical questions in common law courts, especially in negligence cases, some have argued that there is nothing unusual about adjudication of technical questions. Again I disagree. Negligence litigation is not piled on top of multi-million dollar reviews by expert technical staff, and negligence litigation takes the shape of a trial not because trials are the best way to settle technical issues but because the main issue in the trial is whether the stigma of negligence should be imposed on the defendant; the litigation therefore adopts many of the procedures designed to protect defendants in a criminal proceeding. Moreover, it is widely recognized that trials are a particularly expensive, and far from ideal, way to decide who pays for the costs of accidents.
Second, I have not heard expressions of great confidence in an adjudicatory system that brings the public in after the staff has largely completed its review, and that pits the staff and the applicant against the intervenor. (I am not criticizing the Licensing Boards, which have a tradition of fair-dealing with all the parties, but rather the system within which the Boards operate.) Third, licensing actions do not have to be adjudicated to be defended; rules or actions on 2.206 petitions are not adjudicated, and, despite having been subjected frequently to appellate court litigation, they have seldom been criticized by the courts for inadequate records (the rules on fire protection being memorable exceptions).
APA and cross-examination: At the very least, the rulemaking i am calling for should not commit us to more formality in licensing hearings than the APA requires for "on the record" adjudication. That means no discovery, and no separation of functions in initial licensing, where the Commission's separation from its most knowledgeable staff is likely to be felt most keenly.
However, I do not think that the APA model of formality should be our standard model.
I continue to think that we need a notion of standing based less on " interest" (a legitimate guard against useless trials) and more on ability to contribute to thorough discussion of the issues facing us. I remain skeptical of the uses of cross-examination; I do not want to rule it out entirely, but I also do not v' ant to hold it up as the ideal form of inquiry. We have, as yet, no clear theory of its pro;mr role. We all agree that n has a place where issues of credibility arise, but why we think that is not clear; after all, in the recent trial in the Senate, a trial in which there were issues of credibility, such examination of witnesses as took place was neither a legally mandated part of the proceeding nor conducted underjudicial discipline. I've also heard it said that cross-examination is useful where the issues are complex, and I understand that well-framed questions are useful in revealing the connections among things and isolating from a complex array the key points, but why the particular form of questioning called cross-examination should be used, rather than questions from the presiding officer, is not clear; the members of the ASLBP have established a reputation for persistent and thorough questinning (see, e.g., Meehan, The Atom and the Fault, MIT,1984). It is said that cross-examination empowers the parties and subjects the staff to greater scrutiny, but the staff is already subject to the scrutiny of the ACRS, NRC judges, those j
members of the public who follow a given licensing review, the Commission, the IG, the
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courts, and the Congress; the public surely can be empowered in other ways that bring them into the process at an earlier stage.
NEPA: I would also ask OGC's help in reviewing the status of NEPA in our hearings.
Regulations implementing NEPA already provide full public participation in the preparation and consideration of environmental impact statements, but, partly as a result of a nearly 30-year-old case in one federal court of appeals, Calvert Cliffs' Coordinating Committee v.. AEC,449 F.2d 1109 (D.C. Cir.1971), NRC presiding officers must also consider NEPA issues, in some cases whether the issue is in controversy or not. Thus, in construction permit proceedings, the presiding officer acts as another layer of review for environmental impact statements, and even in operating license proceedings, even if a party has already fully participated in the public scoping meetings and notice and comment periods leading up to an final environmental impact statement, the party gets yet another opportunity, in the hearings, to make its case on the statement. This double system, without parallel that I know of, provides intervenors incentive to delay their engaging the Commission on licensing actions, at the same time that it risks iaaking their engagement less effective because it comes later.
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4 I would ask OGC whether intervening cases that emphasize our flexibility under 189a, and the agency's own intervening history of full consideration of NEPA issues, haven't weakened the authority of Calvert Cliffs. For example, in UCS v NRC,920 F.2d 50 (D.C. Cir.,1990), the court says that Calvert Cliffs "does not establish... an absolute right to a hearing on the documents that Act requires agencies to compile." (See footnote 6.) Moreover, at the time of Calvert Cliffs, NEPA was new and the court wac not persuaded that the agency was committed to its implementation. The agency had taken a little over r " ear to issue its NEPA rules, a short time by our standards (unfortunately), b
.parently not by 1971 standards, for the court said, "The period of the rules' gestatic ses not indicate overenthusiasm on the Commission's part." (449 F.2d 1116.) Reviving the same regulations tcday, a court might not be so anxious to search for devices to assure that the agency T. d adequate attention to environmental matters. I would invite OGC's legal and prudential advice on attematives to our existing treatment of NEPA in hearings.
Legislation: Making use of the h?gh interest from all sides in shifting the agency toward a new paradigm of regulation, we should seek legislative confirmation of the 1
flexibility we believe we have under section 189a of the Atomic Energy Act. We should ask to be explicitly given, for all licensing hearings under 189a, the same flexibility 189a explicitly gives us for Part 52 hearings between construction and operation under a combined license (see 189a(1)(B)(iv)). Also, section 193 of the Act should be revised so that it does not.equire "on the record" hearings..
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More generally: It will not be enough to change our hearings. I am not out simply to shorten and informalize hearings. Rather, I would like to see us transform the ways in which we deal with the public. In responding to SECY 99-06 we are moving away from imposing the trappings of trials on citizens who seek to participate in licensing actions,
- but we should also increase our efforts to engage with the public more generally and less formally. We are less often using the label "predecisional" to keep from the public documents that would generate useful discussion. Both the staff and the Commission are more often engaging in early, frequent, and useful discussion with public interest groups that, before, we faced largely only through the formal devices of litigation or petitions for rulemaking or enforcement. I hope that our rulemaking on hearings, and our pursuit of legislation on the same, will make clear that we are not trying to push the public away but instead are actively seeking to engage the public in what we hope will be more timely, useful, and satisfying ways.
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