ML20246F247
| ML20246F247 | |
| Person / Time | |
|---|---|
| Issue date: | 03/31/1989 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| NUREG-1363, NUREG-1363-V01, NUREG-1363-V1, NUDOCS 8905120177 | |
| Download: ML20246F247 (62) | |
Text
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NUREG-1363 Vol.1 ATOMIC SAFETY AND LICENSING BOARD PANEL i
ANNUAL REPORT FISCAL YEAR 1988 I
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March 1989 U.S. NUCLEAR REGULATORY COMMISSION Washington, DC 20555 gkB REOgg 89051g077090331
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s AVAILABILITY NOTICE Availability of Reference Materials Cited in NRC Publications Most documents cited in NRC publications will be available from one of the fol'owing sources:
1.
The NRC Public Document Room, 2120 L Street, NW, Lower Level, Washington, DC 20555 2.
The Superintendent of Documents, U.S. Government Printing Office, P.O. Box 37082, Wathington, DC 20013-7082 3.
The National Technical Information Service, Springfield, VA 22161 Although the listing that follows represents the majority of documents cited in NRC publica-tions, it is not ' intended to bo exhaustive.
Referenced documents available for inspection and copying for a fee from the NRC Public Document Room include NRC correspondence and internal NRC memoranda: NRC Office of Inspection and Enforcement bulletins, circulars, information notices, inspection and investi-gation notices: Licenses Event Reports; vendor reports and correspondence: Commission papers; and applicant and licensee documents and correspondence.
The following documents in the NUREG series are available for purchase from the GPO Sales Program: formal NRC staff and contractor reports, NRC-sponsored conference proceed-ings, and NRC booklets and brochures. Also available are Regulatory Guides, NRC regula-tions in the Code of Federal Regulations, and Nuclear Regulatory Commission issuances.
Documents available from the National Technical Information Service include NUREG series reports and technical reports prepared by other federal agencies and reports prepared by the Atomic Energy Commission, forerunner agency to the Nuclear Regulatory Commission.
Documents available from public and special technical libraries include all open literature items, such as books, journal and periodical articles, and transactions. Federal Register notices, federal and state legislation, and congressional reports can usually be obtained from these libraries.
Documents such as theses, dissertations, foreign reports and translations, and non-NRC conference proceedings are available for purchase from the organization sponsoring the publication cited.
Single copies of NRC draft reports are available free, to the extent of supply, upon written request to the Office of Information Resources Management, Distribution Section, U.S.
Nuclear Regulatory Commission, Washington, DC 20555.
Copies of industry codes and standards used in a substantive manner in the NRC regulatory process are maintained at the NRC Library, 7920 Norfolk Averue, Bethesda, Maryland, and are available there for reference use by the public. Codes and standards are usually copy-righted and may be purchased from the originating organization or, if they are American National Standards, from the American National Standards institute,1430 Broadway, New York, NY 10018.
L-___-__________-____________________-_____
NUREG-1363 Vol.1 ATOMIC SAFETY AND LICENSING BOARD PANEL ANNUAL REPORT FISCAL YEAR 1988 s
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db March 1989 U.S. NUCLEA.R REGULATORY COMMISSION Washington, DC 20555
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NUCLEAR REGULATORY COMMISSION 3.
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E ATOMIC SAFETY AND LICENSING BOARD PANEL j[
W ASHtNGTON, D.C. 20555 April 19, 1989 MEMORANDUM FOR:
Chairman Zech Commissioner Roberts Commissioner Carr Commissioner Rogers Commissioner Curtiss FROM:
B. Paul Cotter, Jr.
Chief Administrative Judge
SUBJECT:
SEVENTH ANNUAL REPORT OF THE ATOMIC SAFETY AND LICENSING BOARD PANEL:
FISCAL YEAR 1988 Attached is the seventh Annual Report of the Atomic Safety and Licensing Board Panel.
The Report provides a general overview of the activities and docket of the ASLBP and details some of the more significant decisions of individual Licensing Boards during fiscal year 1988.
Despite the availability of fewer judges and a significant increase in new filings over previous years, the Panel succeeded in reducing its overall caseload again in Fiscal Year 1988.
i The Panel is now reduced to 14 full-time judges, including ASLBP i
officers, and 10 of them are or will be eligible for retirement within two years.
The Panel has asked the Office of Personnel to l
establish a system for establishing a Register of Qualified ASLBP candidates to be available in the future when the inherently complex safety questions in the high-level waste repository, plant life extension, and standardized design proceedings will have to be confronted.
As current workflow fluctuates, however, the Panel's interest is renewed in hearing personnel and security cases (cases which the NRC now pays outside judges to hear), and in greater use of I
individual Panel members, Legal and Technical, for the informal' agency hearings and inquiries that arise periodically.
l i
di l
B.
Paul Cot r, Jr.
Chief Admin strative Judge I
Attachment:
ASLBP Annual Report
ABSTRACT This is the fiscal year 1988 annual report of the Atomic Safety and Licensing Board Panel.
In response to further reductions-in its authorized staffing level and with an eye toward the proposed full-text, electronic docket of the expected High-Level Waste Repository proceeding, the Panel stepped up efforts-during fiscal year 1988 to extend the scope, depth and availability of its Computer Assistance Project (CAP) through INQUIRE.
INQUIRE, and the Panel's ability to use the system to expeditiously manage and search the massive records that characterize our most complex cases,,has generated great interest among legal practitioners and adjudicatory bodies throughout the United States and Canada.
iii
TABLE OF CONTENTS Pace ABSTRACT iii LIST OF TABLES iX EXECUTIVE
SUMMARY
ES-1 A.
Overview.
ES-1 B.
Docket Data ES-2 C.
Administration.
ES-3 I.
ORGANIZATION AND JURISDICTION 1
II.
ASSURING THE PUBLIC HEALTH AND SAFETY:
SIGNIFICANT FISCAL YEAR 1988 DECISIONS 3
A.
Fiscal Year 1988 Caseload Overview.
3 l
B.
Significant Panel Decisions 4
1.
Operating Licenses.
4 2.
License Amendments 6
3.
Reactor Operator Licenses 7
4.
Enforcement 8
5.
Informal Proceedings 8
6.
Significant Settlements 9
III.
FISCAL YEAR 1988 CASELOAD ANALYSIS 11 A.
Overview.
11 B.
Docket Management 11 C.
Types of Cases.
14 D.
Operating Licenses.
14 E.
Contentions 16 v
F.
Reconstitution 18 G.
Hearings 18 IV.
PERSONNEL AND SUPPORT 21 A.
Panel Members 21 B.
Professional and Support Staff 22
(
1.
Legal. Support Staff 22 2.
Technical Support Staff 23 3.
Administrative Support Staff.
23 V.
IMPROVEMENTS IN HEARING ADMINISTRATION 24 A.
General 24 B.
Computerized Proceeding Rec
.s 24 1.
Components 25 2.
Court Reporting Contract 25 3.
Application.
25 4.
INQUIRE 26 C.
Hearing Procedures 27 D.
Court Reporting Contract 28 VI.
CONCLUSIONS 30 A.
1988 in Retrospect.
30 B.
Present Indications of Future Trends.
30 C.
Fiscal Year 1989 Projection 31 D.
Five Year Projection.
31 1.
General 31 2.
The High Level Waste Repository 32 E.
Judicial Resources.
32 vi
APPENDICES APPENDIX A:
Organizational Chart APPENDIX B:
ASLBP Professional Personnel and Biographical Sketches APPENDIX C:
Major Statutes and Regulations Relevant to ASLBP Adjudications vii
LIST OF TABLES Table No.
Pace 1
ASLBP Caseload by Fiscal Year.
12 2
FY 1989 Docket Recapitulation 12 l
l 3
Average Case Age by Type /Overall 13 4
Types of Cases on Docket, Fiscal Year 1988 15 5
Contentions by Type of Proceeding, Fiscal Year 1988 17 l
6 Contentions by General Type, Fiscal Year 1988 19 7
Total Hearing Days by Type of Proceeding (Including 114 Hearing Days During FY 1988) 20 s
ix
EXECUTIVE
SUMMARY
A.
Overview After ten years of adjudications principally focusing on operating license applications, fiscal year 1988 marked the second full year of transition in the subject matter of the Atomic Safety and Licensing Board Panel's hearing work.
Only 9 of the 50 cases on the FY 1988 docket concerned construction permits, CP amendments, and operating licenses.
Other types of cases accounted for 82% of the Panel's cases, and focused on issues arising out of the continuing operation of 109 nuclear power plants, 8,500 materials licenses, and other nuclear licenses.
One nuclear power plant unit was approved for a full power license during the fiscal year. That brought to 41 the number of such units approved for operation by the ASLBP since May 1981.
Proceedings concerning four units at three facilities remained on the docket at the close of FY 1988.
Continuing the trend from fiscal year 1987, new filings during the last year increased 28% over new filings in FY 1987. And FY 1987 represented a 20% increase over the average number of new cases filed in the preceding five years.
Significantly, 87% of all new filings last year focused on issues typical of a mature regulated industry, principally applications for license amendments, re-hearings of remanded issues, and challenges to NRC Staff enforcement actions.
In response to further reductions in its authorized staffing level and with an eye toward the proposed full-text, electronic docket of the expected High-Level Waste Repository proceeding, the Panel stepped up efforts during FY 1988 to extend the scope, depth and availability of its Computer Assistance Project (CAP) through INQUIRE.
INQUIRE, and the Panel's ability to use the system to expeditiously manage and search the massive records that characterize our most complex cases, has generated great interest among legal practitioners and adjudicatory bodies throughout the United States and Canada.
B.
Docket Data CASE AGE:
The average age of all cases on the docket during the fiscal year (as of September 30, 1988) was 18.1 months, a decrease of 33%
over the FY 1986 average age.
The average age of all operating license cases on the docket was maintained at 50 months despite the intervening twelve months.
CASE FILINGS:
New cases filed in FY 1988 increased 27% over the FY 1987 filings, which themselves reflected a 20% increase over the average for the last five years.
CASELOAD:
Of the 50 cases on the Panel's FY 1988
- docket, six involved operating license applications.
The remaining 41 proceedings were of nine different types, the bulk being license amendment, remand and enforcement proceedings.
OPERATING LICENSES:
In FY 1988, Licensing Boards authorized operation of one nuclear power plant unit, Shoreham Unit 1,
and made possible the amicable settlement of all contested issues concerning two other units, Comanche Peak 1 and 2.
PREHEARING CONTENTION RESOLUTON:
For all proceedings, over 88% of all contentions were resolved during the prehearing phase of the proceeding.
For operating license cases, over 88% were resolved before hearing.
The rate of prehearing resolution of contentions by type was 72%
for safety contentions, 96%
for environmental contentions, 91% for emergency planning contentions, and 100% for other types of contentions.
HEARINGS:
During FY 1988, the Licensing Panel held 114 days of haarings (101 trial days and 13 prehearing conference days).
This represents some 340 Administrative Judge Hearing days, almost 75% of the total 153 hearing days required for all current cases during their entire tenure on the Panel's docket.
ENFORCEMENT: There were six enforcement proceedings ES-2
during FY 1988, half of which were closed during the year.
Significantly, one enforcement proceeding required 15 hearing days before a settlement agreement was reached between the NRC Staff and the licensee.
COMPLETED PROCEEDINGS:
Of 50 proceedings on the docket during the
- year, 25 (50%
of all proceedings) were closed in 1988.
FY 1989 CARRYOVER:
Of the twenty-five proceedings carried over to FY 1989 from the 1988 docket, seven address issues associated with operating license applications for four units at three different facilities.
The largest group of carryover proceedings, 40%
of all such proceedings, involved applications for license amendments and enforcement actions.
C.
Administration STAFFING:
As of the close of the fiscal year, full-time Panel personnel totalled 31.
ASLBP membership stood at 37 judges (15 full-time and 22 part-time), reflecting a decrease of over 46% in the number of available judges since 1982.
In addition to the Panel's authorized permanent staff, the Seabrook Board received special temporary hiring authority for two FTE's.
COMPUTER ASSISTANCE PROJECT / INQUIRE: The Panel made substantial progress in expanding the scope,
- depth, and availability of the Computer Assistance Project (CAP) during FY 1988.
As of the close of the fiscal year, the Panel was:
(1) training agency personnel in other Commission offices in how to access the CAP using INQUIRE; and (2) enhancing the system through the addition of ASLBP and Appeal Board issuances within 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> of decision.
This Annual Report documents improvements in essentially all important measures of hearing management and early issue resolution.
Licensing Panel reforms in hearing management, when combined with an experienced and dedicated group of judges (legal and technical), continue to bring a high degree of efficiency and expertise to the Commission's complex, multi-party litigation.
ATOMIC SAFETY AND LICENSING BOARD PANEL ANNUAL REPORT Fiscal Year 1988 l
I.
ORGANIZATION AND JURISDICTION Adjudicatory hearings under the Atomic Energy Act of 1954, as amended ("The Act") are usually characterized as among the most
- complex, lengthy and controversial administrative hearings conducted by the Federal government.
They are conducted by Licensing Boards drawn from the Atomic Safety and Licensing Board Panel ("ASLBP" or " Panel").
The ASLBP was created by the Commission pursuant to the authority of Section 191 of the Act.
The first Licensing Board was i
appointed November 9,
1962.
Nuclear reactor licensing and construction permit hearings are conducted before Licensing Boards comprised of three administrative judges.
Thus, the ASLBP is perhaps the only " science court" in the country because two of the three judges on each Licensing Board are l
engineers, physicists, or environmental scientists.
In other
- matters, hearings may be conducted by a
single ASLBP administrative judge or administrative law judge.
J Commission appointment to the ASLBP is based upon recognized experience, achievement and independence in the appointee's field of expertise.
Individual judges are I
assigned to particular hearings where their professional expertise will assist in resolving the technical and legal matters at issue in a proceeding.
The Panel was staffed by 39 judges during Fiscal Year 1988.
The Panel's 16 full-time judges were headquartered in Bethesda, Maryland. The Panel's 23 part-time judges came from the private sector, universities, and national laboratories throughout the United States.
The Act and implementing regulations require that a hearing be held on every application for a construction permit for a nuclear power plant or related facility.
In addition, the Act or regulations require an opportunity for a hearing in connection with any other licensing proceeding under the Act.
Other sections of the Act or the Commission's rules provide an opportunity for a hearing on antitrust issues, enforcement actions, civil penalties, and other matters as
l 1
l l
4 ASLBP ANNUAL REPORT Fiscal Year 1988 I
l directed by the commission.
These hearings are the Commission's principal, public forum in which individuals, organizations and State and local governments can voice their interest in a particular licensing, enforcement or other matter, and have those interests adjudicated by an independent tribunal.
Virtually all hearings are held at or near the site of the facility.
)
The hearing on a particular application for a nuclear facility license may be divided into several phases:
(1) health, safety, and the common defense and security aspects of the application, as required by the Atomic Energy Act; (2) environmental considerations as required by the National Environmental Policy Act (NEPA); and (3) emergency planning requirements.
These
- matters, often raising difficult interrelated questions of policy, law and engineering, were treated by judges in 50 proceedings during Fiscal Year 1988.
i II.
ASSURING THE PUBLIC HEALTH AND SAFETY:
SIGNIFICANT FISCAL YEAR 1988 DECISIONS A.
Fiscal Year 1988 Caseload Overview During the fiscal year ending September 30, 1988, the Panel conducted 50 proceedings, 37 involving 20 nuclear power plants or related facilities valued in excess of $60 billion, and 13 involving other Commission licensees.
A total of 114 days of hearing (101 trial and 13 pre-hearing conference days) were held during fiscal year 1988.
The 25 proceedings closed brought the total number of proceedings completed by the Panel over the last eight years to 187.
As a result of ASLBP action during FY 1988, operating licenses were authorized for one additional commercial nuclear power reactor unit, Shoreham, and a Board-induced settlement resolved all contested issues for two other units, Comanche Peak 1 and 2, bringing the total number of operating licenses authorized by the Panel since May 1981 to 43.
As of the start of the fiscal year, the last three active operating license proceedings left on the Commission's dockets remained to be completed.
Twenty-three new cases were opened in Fiscal Year 1988, a 28% increase over the number initiated in FY 1987.
This increase in new cases continued to reflect the developing trend toward more numerous, more focused cases of greater technical and legal diversity typical of a maturing industry.
Twenty-five cases were closed during the year, continuing the pattern set in FY 1987 of closing old cases at a rate greater than the filing of new cases. _
ASLBP ANNUAL REPORT Fiscal Year 1988 B.
Significant Panel Decisions 1.
OPERATING LICENSES SHOREHAM The hotly contested Shoreham case generated seven significant decisions on public health and safety in emergency planning.
- However, the most significant decision for administrative law generally involved the imposition of sanctions and thus is summarized first.
Two separate Licensing Boards were required to keep this complex case moving expeditiously during the fiscal year.
(1)
Sanctions Interveners Dismissed and Operatina License Authorized.
To set the stage for the sanctions decision, it is necessary to first review LBP-88-9, 27 NRC 355, rendered on April 8,
1988.
This decision held that, absent the development of an adequate and feasible alternative emergency response plan by the intervening state and local governments (the State of New York, Suf folk County, and the Town of Southampton, hereinafter "the Governments"), which they steadfastly refused to do, it will be assumed that the Governments will in fact utilize the utility's plan should an emergency arise. The board concluded that the Commission's emergency planning
" realism" rule reinforced its responsibility to ensure that a utility's emergency plan, in conjunction with an assumed "best efforts" response by state and local governments, satisfied the Commission's regulatory standards.
More importantly, the Board noted that the Governments' position that they would respond only on an M hoc basis would be acceptable only if accompanied: (1) by a specification of the resources available for such a response; (2) the actions involved in such a response; and (3) the time f actors involved.
27 NRC 355 (LBP-88-9, 1988)
Nonetheless, the intervening Governments persisted in their refusal to respond beyond their assertion that they did not know what the nature of their M hoc emergency actions might be.
Consequently, the Board found the Governments to be in willful default of its discovery orders. Significantly, this default concerned the very issues the Governments' position had made critical:
that they would not plan for --
ASLBP ANNUAL REPORT Fiscal Year 1988 emergency response.
As a sanction, the Board dismissed the Governments from the entire proceeding.
[ EDITOR'S NOTE:
On March 3, 1989, the Commission affirmed the Board's sanctions decision in its entirety, thus paving the way for the issuance of an operating license.
The Governments' appeal from that affirmance is presently before the United States Court of Appeals for the District of Columbia Circuit.)
(2)
Exercise Requirements Exercise Requirements Clarified.
One other Shoreham decision rendered during the year retains its significance despite the termination of the proceeding.
In connection with the February 1986 exercise of the applicant's emergency plan for the Shoreham Station, the Licensing Board construed the Commission's regulatory standards to require that an initial full-participation exercise test as much of the plan as is reasonably achievable.
The board specifically disapproved Staff's and FEMA's position that the regulation permitted major plan elements to be tested over a period of years rather than all together in the initial exercise.
The board also held that the exercise must include participation by all response organizations within both the plume and ingestion exposure Emergency Planning Zones. However, the board did not require testing in the initial exercise of those plan elements when local government action or the lack of federal standards prevented it.
Thus, those plan elements were not considered in determining whether the exercise met the requirements of the Commission's criteria.
Applying these standards, the board concluded that four portions had not been adequately tested (Emergency Broadcast System messages, school and ingestion exposure pathways emergency plans, and coordination and communication between the local emergency response organization and special facilities).
[ EDITOR'S NOTE:
This decision was affirmed in ALAB-900, 28 NRC 275.
The Commission specifically declined to review it in CLI-88-11, 28 NRC 603.
The decision corrects a FEMA practice which did not fully comply with the Commission's regulations.]
SEABROOK Remanded Contentions No Ear to Low-Power Operation. In two decisions issued February 17 and August 8,
1988, the Licensing Board renewed its March 25, 1987 authorization of a low power operating license for the Seabrook Station. The f
ASLBP ANNUAL REPORT Fiscal Year 1988 board found that three contentions remanded by the Appeal Board for further litigation did not raise safety concerns relevant to low-power operation of the Seabrook Station. The board also rejected arguments that the Atomic Energy Act required that all issues relevant to a full-power license must be resolved before a low-power license could be authorized.
However, the board declined to authorize the issuance of a low-power license pending, inter alia, completion of the Commission's rulemaking on proposed modifications to its regulations on offsite public notification requirements. 27 NRC 245 (LBP-88-6, 1988); 28 NRC 161 (LBP-88-20, 1988) 2.
LICENSE AMENDMENTS Turkey Point.
In an April 19, 1988
- decision, the Licensing Board affirmed the grant of an earlier license amendment more than doubling the authorized storage capacity of the spent fuel pools at the Turkey Point Nuclear Generating Plant (Fla.). The board found that the proposed high-density racks satisfied the Commission's structural criteria with respect to seismic events.
The board also concluded that the staff had adequately considered the effects of long-term storage in a high-density configuration on the rate of deterioration and integrity of the materials used in the racks. 27 NRC 387 (LBP-88-9A, 1988).
St. Lucie. In an April 20, 1988 decision, the Licensing Board framed the issues that it will consider in connection with a challenge to a St. Lucie (Fla.) license amendment. That amendment authorized an increase in the spent fuel storage capacity at the plant from 728 to 1706 fuel assemblies. In addition, the board noted that the Commission had under its regulations reserved to itself review of staff "no significant hazards consideration" determinations made pursuant to 10 CFR S 50.92(c).
Because of thie, the board concluded that it was without authority to review the propriety of that determination in the context of a post-amendment hearing.
Rather, the board's authority extended only to determining whether any threat to the public health or safety disclosed at any subsequent hearing required corrective action.
The board also concluded that low probability severe accidents (i.e., beyond design basis accidents) were outside the ambit of the National Environmental Policy Act and need not be considered in connection with Commission licensing actions.
27 NRC 452 (LBP-88-10A, 1988) - _ _ - _ - _ _ - _ _ _ _ _ _ _ _ - _ - - -
ASLBP ANNUAL REPORT Fiscal Year 1988 3.
REACTOR OPERATOR LICENSES These proceedings are normally heard by a single Panel judge, either legal or technical.
A second Panel judge with the appropriate expertise is assigned to assist the presiding officer in matters beyond his or her expertise.
In the Matter of David W.
Held.
An applicant challenged the NRC Staf f's determination that he had failed the simulator portion of the Commission's reactor operator license examination.
The judge concluded that under the applicable facts, the applicant could not utilize more than one license at a time.
Since the applicant already possessed a license to operate the facility's companion reactor, review of the Staff's determination was a moot question. However, the judge retained jurisdiction over the matter for two years given the possibility that the utility-employer could seek to dual-license its operators. In that event, the judge concluded that the challenged staff action would have some real impact on the applicant. 27 NRC 29 (LBP-88-1B, 1988). See also 27 NRC 233 (LBP-88-3A, 1988).
On remand from the Commission, and after the staff withdrew its objection to the applicant's challenge, the judge determined that the applicant had passed the simulator examination and thus was entitled to a Senior Reactor Operator's License. 28 NRC 176 (LBP-88-22, 1988)
In the Matter of Alfred J.
Morabito.
An applicant for a senior reactor operator license successfully challenged a Staff finding that he had failed both the written and simulator portions of the Commission's examination. While subsequently awarding a
passing score on the written examination, the Staff had re-affirmed the applicants' unsatisfactory grades on four of the eight competencies tested in the simulator examination.
The judge performed a detailed and exhaustive review of the factual basis for and legal sufficiency of the Staff's ratings.
Based on his analysis, the judge sustained cnly one of the Staff's unsatisfactory scores, and upgraded the applicant's performance on three of the competencies to a passing level. The judge then concluded that the applicant's overall performanc.e on the test, when viewed against the insignificance of the deficiencies in his test performance, warranted a passing score on the simulator examination. 27 NRC 417 (LBP-88-10, 1988)
L i
ASLBP ANNUAL REPORT Fiscal Year 1988 4.
ENFORCEMENT In two-decisions arriving at different
- results, a
Licensing Board and an Administrative Law Judge highlighted the impact of on-going Department of Justice (DOJ) criminal inquiries on parallel Commission enforcement proceedings.
In the Matter of Finlav Testina Laboratories. Inc.
In a decision issued January 27, 1988, the Licensing Board denied a Staff motion to stay a show-cause proceeding pending completion of a DOJ inquiry.
The proceeding involved a challenge to an immediately effective order suspending a
-materials ' license.
The board held that where a stay.would devastate a licensee's business and deny its due process rights,.the Staff had a heavy burden to demonstrate that a.
stay was warranted.
Because the stay sought was of an unlimited duration and because no significant adverse impact on the parallel DOJ inquiry was clearly established, the board concluded that a stay was not justified, particularly where the licensee was unable to conduct any business pending completion of the administrative hearing. 27 NRC 19 (LBP 1A,1988). Subsequently, the board approved settlement of this enforcement matter as in the public interest. 27 NRC 586 (LBP-88-17, 1988).
In the Matter of Edward Hines, Jr. Medical Center.
In a decision issued April 29, 1988, the Administrative Law Judge granted a Staff motion for a stay pending completion of a i
parallel Department of Justice criminal inquiry. In this case, the judge concluded that no significant harm to the respondent would result from a grant of a short stay since he was still employed.
In contrast, the Staff established the possibility of some harm to the on-going Grand Jury investigation in the absence of a stay. Balancing the competing harms, the judge found that the equities favored the grant of a stay. 27 NRC 475 (ALJ-88-1, 1988).
Ultimately, the judge approved a settlement proposed by the parties.
28 NRC 477 ( AIJ-8 8-2,
1988).
5.
INFORMAL PROCEEDINGS In the Matter of Radioloav Ultrasound Nuclear.
In this decision on remand, the Administrative Judge concluded that while new information submitted by the applicant technically _ _ _ _ - - - - -
ASLBP ANNUAL REPORT Fiscal Year 1988 satisfied the requirements of 10 C.F.R. 6 2.734 for reopening, the proffered information still was insufficient to support the grant of a materials license under the Commission's Policy Statement on the Medical Uses of Radioisotopes. Specifically, the Administrative Judge found that the record, even as supplemented by additional information from the applicant, failed to establish an effective and practical means to separate the uses for which the applicator may be effective from these for which it has not been demonstrated to be effective.
Consequently, the application failed to demonstrate that the proposed medical usage of the Strontium-90 applicator was " safe and effective" as required by the Commission. Accordingly, the Administrative Judge re-af firmed his prior decision denying the license application. Moreover, in the course of deciding the merits of the application, the judge held that an applicant did not have a legal right to an oral hearing under the Commission's informal hearing procedures.
Rather, an applicant was entitled to an " oral" hearing only if, in the judge's view, an oral presentation was "necessary or desirable for a full development of the record."
Because none of the additional facts advanced by the applicant would assist the judge in resolving the " safe and effective" issue that was the basis for his prior decision, an " oral" hearing was unwarranted.
6.
SIGNIFICANT SETTLEMENTS Comanche Peak.
In an unpublished order dated July 12, 1988, the Licensing Board concluded a major case involving a myriad of quality assurance and quality control issues without need for a hearing.
The board dismissed both the operating license and construction permit amendment proceedings based on a Joint Agreement and Joint Stipulation of the parties.
The joint filings were the product of the applicants' and intervenor's mutual cooperative efforts in evaluating the construction and safety of the Comanche Peak facility af ter years of dispute.
Those cooperative efforts, in turn, resulted from the board's refusal to simply call the balls and strikes in the litigation or to rely solely on the
" engineering judgment" of the original NRC Staf f and applicant witnesses.
As a result of the settlement agreement, the intervenor was reimbursed for prior legal and expert witness expenses, and an intervenor-representative was appointed to the Comanche Peak Operations Review Board (and provided a
$150,000 engineering consultant budget) for the next five - _ _ _ - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
ASLBP ANNUAL REPORT Fiscal Year 1988 years.
With its appointment to the Operations Review Board, the intervenor was made an integral and formal partner with the applicant in the safe construction and operation of the facility. _ _ _ _ - _ _ _ _ _ _ _ _ _ _
)
c III.
FISCAL YEAR 1988 CASELOAD ANALYSIS A.
Overview i
Since November 9,
1962, the date the first Licensing Board was appointed by the Commission, there have been 541 cases filed, 517 of which had been closed by the end of fiscal year 1988.
During Fiscal Year 1988, the ASLBP had 50 proceedings docketed for adjudication, the average age of which was 18.1 months.
In connection with those 50 proceedings, the Panel had, as of the end of the fiscal year, resolved over 88% of all the contentions prior to hearing, and held a total of 153 days of hearings (28 prehearing conference days and 125 trial days).
During 1988, the Panel closed 25 proceedings, and resolved disputes to authorize the issuance of operating licenses for three power reactor units.
During this same period, the Panel docketed 23 new proceedings, a 28%
increase over fiscal year 1987.
B.
Docket Management The success of any docket management program is generally reflected by the average age of the cases on the docket.
Average case age, in turn, is a function of two interrelated yg factors:
(1) case filings; and (2) case closings.
The following figures and tables show that the Panel has been highly successful in reducing the average age of its cases despite a significant reduction in recent years in its authorized staffing level.
Over the last five fiscal years, the Panel's staff has been reduced almost twice as much as the decrease in the number of active proceedings on the docket. -___ _ ___
ASLBP ANNUAL REPORT Fiscal Year 1988 TABLE 1 ASLBP CASEIDAD BY FISCAL YEAR FY 1988 50 FY 1987 52 FY 1986 58 FY 1985 55 FY 1984 63 The 22.2% decrease in total proceedings shown in Table 1 has been accompanied by a 40% reduction in the Panel's authorized staffing level over the last three fiscal years and a 46%
decrease in available judges since October 1, 1982.1 Notwithstanding the decrease in its staff by a factor of two over the decrease in the number of cases, the Panel was able to replicate in FY 1988 its FY 1987 success in closing more cases than were docketed.
TABLE 2 FY 1988 DOCKET RECAPITULATION Cases Pending October 1, 1987 27 Cases Docketed, FY 1988 23 Total Cases, FY 1988 50 Cases Closed, FY 1988 25 Cases Pending October 1, 1988 25 As Table 2 shows, the Panel was able to reduce the number of cases carried over into FY 1989 despite a 28% increase in the number of cases filed.
As a result of its overall docket management, the Panel was able to reduce the average age (length of time a proceeding is considered by a Licensing Board) to 18.1 months, l
l As of the end of Fiscal Year 1988, the ASLBP had 37 judges (15 full-time and 22 part-time).
In 1982, the Panel had 68 judges. ___
ASLBP ANNUAL REPORT Fiscal Year 1988 a 17.7% reduction over the FY 1987 average and a 33% reduction over the FY 1986 average.2 TABLE 3 AVERAGE CASE AGE BY TYPE /OVERALL Type of Case (Number of Cases)
Tot.Mo./All Averace Construction Permit (2) 10 5.0 CP Amendment (1) 18 18.0 Decommissioning (2) 75 37.5 Enforcement (6) 30 5.0 License Amendments (12) 116 9.7 Materials License (4) 39 9.6 Operating Licenses (6) 296 49.3 Operators Licenses (2) 14 7.0 Remand (11) 128 11.6 Suspended (4) 179 44.7 DOCKET AVERAGE (50 Cases) 905 18.1 The overall average reflected in Table 3 was inflated by the presence of a handful of operating license and suspended proceedings characterized by problems which delayed resolution of hearing issues or created new ones late in the proceeding.
Once these operating license proceedings are brought to a close, the average age of all cases should drop dramatically, particularly if the Panel should continue to close cases at a rate equal to or greater than the rate of new filings.
For
- example, excluding operating license and suspended 2" Average age" means the number of months from the time a Licensing Board is first appointed (usually 30 to 60 days after a license application is formally docketed) until the case is closed or the end of the fiscal year, whichever is earlier.
Average age includes waiting time resulting from suspension of work or unavailability of hearing documents (except where a Licensee has requested that the entire proceeding be suspended, for example, Washington Public Power Supply System, WPPS Nuclear Project No.3).
" Average age" does not include the time a case may be pending before the Appeal Board or the Commission.
- 13
ASLBP ANNUAL REPORT Fiscal Year 1988 proceedings, the average age of the remaining cases on the ASLBP docket at the close of the fiscal year was 10.8 months.
C.
Types of Cases While massive, complex operating license application proceedings dominated the Panel's docket over the last ten
- years, fiscal year 1988 continued the transition to the caseload of the early 1990's:
license amendments, decommissioning, and enforcement actions.
As Table 4 on the following page shows, only 16% of the cases pending at the close of the fiscal year involved applications for operating licenses.
The majority of the new FY 1986 cases, or 56% of all new filings, concerned license amendments and enforcement actions.
D.
Operating Licenses An operating license for one new unit was authorized by Board action in FY 1988, Shoreham Unit 1.
In addition, the proceeding concerning operating licenses for two other units, Comanche Peak Units 1 and 2, was dismissed at the request of the parties.
That request resulted from determined and extensive Board efforts to facilitate a settlement among the parties, a major contribution gratefully acknowledged on the record by both the Applicant and the interveners at the close of the proceeding.
The dismissal, based on a settlement between the parties, amicably resolved one of the most contested proceedings in recent years.
From May 1981 to September 30, 1988, Licensing Boards have authorized or facilitated the issuance of full power operating licenses for forty-three (43) commercial nuclear power reactors in 18 states.
These units include Beaver Valley 2, Braidwood, Byron 1 and 2, Callaway 1, Catawba 1 and 2, Clinton 1 and 2, Comanche Peak 1 and 2, Diablo Canyon 1 and 2,
Enrico Fermi 2,
Grand Gulf 1 and 2,
Hope Creek, Indian Point 2, Limerick 1 and 2, McGuire 1 and 2,
Nine Mile Point 2,
Palo Verde 1,
2 and 3,
Perry 1 and 2,
River Bend 1,
San Onofre 1 and 2,
Shoreham 1,
St. Lucie 2,
Shearon Harris 1,
South Texas 1 and 2, Summer 1, Susquehanna 1 and 2, Vogtle 1 and 2, Waterford 3, and Wolf Creek 1.
These units are valued at over $100 billion.
- 14
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ASLBP ANNUAL REPORT Fiscal Year 1988 E.
Contentions Data on contentions generally under-represent the number of legal and factual issues raised in a proceeding and thus understate the amount of work necessary to effectively and fairly resolve the disputed matters at issue.
Frequently, a single contention contains multiple subparts or issues, each of which must be considered on its individual merits.
However, as a general matter, the data concerning the disposition of contentions during the fiscal year show that:
(1) contentions are being resolved expeditiously; (2) case management, discovery, and prehearing procedures are effective in achieving an early reduction or focusing of issues for hearing; and (3) most disputed matters (in the form of contentions) associated with a licensing or enforcement matter are resolved during the prehearing portion of the proceeding.
See Table 5 at p.
17.
The data on the resolution of contentions confirm the Licensing Boards' active exercise of case management tools and inherent' authority under 10 CFR Part 2 to streamline and focus proceedings.
CLf_,_ the Commission's May 1981 " Statement of Policy on Conduct of Licensing Proceedings", 13 NRC 452 (1981).
As Table 5 shows, the largest number of contentions eliminated prior to hearing (43.3% of all contentions filed in all categories of cases) resulted frcm Licensing Board rejection of proffered contentions under 10 CFR Part 2.3 In terms of active case categories, the highest percentage of rejected contentions (51.5% rejection rate)'
occurred in operating license proceedings while the lowest 3The data reflected in Tables 5 and 6 are based on monthly activity reports filed by ASLBP judges individually characterizing the adjudicatory activities before them.
Due to the changes in the handling and characterization of certain contentions over time, some contentions might be listed in multiple categories in the same report or in different categories in subsequent reports, resulting in some inconsistencies in end-of-year totals.
'The " Suspended" category of cases had a higher percentage of rejected contentions (56.4%).
However, by definition, such cases were not active during all or part of the fiscal year. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ -
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_ - _ _, _ = _ - - _ _ - - _ _ _-__ _ _ - -_ _ _ _
ASLBP' ANNUAL REPORT Fiscal Year 1988 percentage (17.3% rejection rate) occurred in decommissioning The same Table shows that 88.2% of all contentions in cases.
all proceedings were resolved prior to hearing.
The greatest success among active proceedings in prehearing resolution of contentions occurs in remanded and operating license proceedings (98.1% and 88.5% resolution rates, respectively),
and is lowest in decommissioning proceedings (56.5% resolution rate).
When viewed in terms of general type of contention, the resolution of contentions in FY 1988 cases reveals that I
admitted, safety-based contentions are more likely to remain for hearing, while environmental and emergency planning contentions are most likely to be resolved during the S_ee Table 6 at p. 19.
prehearing stage of the proceeding.
e F.
Reconstitution The boards assigned to five proceedings were reconstituted during FY 1988 to avoid delay resultant from individual board member's schedule conflicts with other cases, retirements, or unavailability due to other reasons.
In addition, reconstitution were used to create multiple boards focusing on different aspects of a single application for an operating license.
Such multiple boards shorten the time needed to complete cases by handling multiple ' issues on parallel time tracks.
G.
Hearings Of the 50 cases on the Panel's FY 1988 docket, 14 required the conduct of prehearing conferences or hearings between their initial filing and the close of the record or the fiscal year.
As reflected in Table 7,
these cases collectively averaged 10.9 days of hearings by the end of FY 1988 (2.0 days of prehearing and 8.9 days of hearing).
The vast majority of these hearing days (114) occurred during FY 1988. - _ - _ _ - _ -
tca dr ea y
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ASLBP! ANNUAL REPORT Fiscal Year 198'8 TABLE 7 TOTAL HEARING DAYS BY TYPE OF PROCEEDING (Including 114 Hearing Days During FY 1988) 5 Tvoe of Proceedina(No.1 Pre-Hearina Hearina Total Construction (1) 2 0
2 CP Amendment (1) 5 0
5 Enforcement (2) 0 16 16 License Amendment (2) 2 1
3 Operating License (3) 5
.101 106 Operator License (1) 0 1-1 Remand (2) 13 2
15 Suspended (2) 1 4
5 TOTAL (14) 28 125 153 Average:
2.0 days 8.9 days 10.9 days However, the Shoreham and Seabrook proceedings, both hotly contested and heavily litigated, accounted for the substantial majority of all hearing days to date, and most of
.the FY 1988 hearing days.. Absent these two proceedings, the.
average number of hearing days required becomes quite low and reflects the Licensing Boards' success in resolving issues before hearing.
SNumber of cases includes only those proceedings which required hearings days.
Where no prehearing conference or hearing had been required prior to the end of the fiscal year, a proceeding was not counted in Table 7. I
i-IV.
PERSONNEL AND SUPPORT A.
Panel Members Commission appointment to the ASLBP is based upon recognized experience, achievement and independence by the appointee's in his or her field of expertise.
Once appointed to the Panel, judges are assigned, as - cases arise, to individual Licensing Boards where their professional expertise will assist in resolving the technical and legal matters likely to'be raised during the proceeding.
- As of the end of the fiscal year, the Panel had available a total of 37 judges (15 full-time and 22 part-time).
By profession, the judges of the ASLBP included 13 lawyers, 11 public health and environmental scientists, 6 engineers, 5 physicists, one medical
- doctor, and one economist.
Collectively, Panel members held 39 graduate degrees in technical or hard science areas, including 21 Ph.D's.
Several part-time members.are or have been heads of departments at major. universities or national laboratories.. As a group, they represent in excess of elaht centuries of experience in the nuclear field.
See Appendix B.
However, FY 1988 witnessed a continued reduction in the ranks of the Panel's judges.
During the last year, the ranks of the full-time Panel judges fell by three judges, a 16.6%
reduction, with the partial retirements to part-time status of Judge James H.
Carpenter (1981-1987) and Judge Sheldon Wolfe (1978-1988), and the retirement of Judge Peter A. Morris
-(1981-87).
The number of part-time Panel judges was reduced p
by one with the retirement of Judge Hugh K.
Clark who had i
j served the Panel for 16 years.
Because no new judges have been appointed to the ASLBP in the last seven years, these losses have accelerated the erosion of the Panel as a unique adjudicatory resource l
ASLBP ANNUAL REPORT Fiscal Year 1988 available to the Commission.
Over the last three fiscal years, the Panel's total authorized personnel staffing level has been reduced over 40%,' from 52 as of October 1, 1984 to 31 as of October 1, 1988.
Over the last seven years, the Panel has suffered a 46% decrease in the number of judges available for assignment.
Moreover, the loss of existing judges is expected to continue, if not increase, in the inmediate future.
The average age of full-time Panel judges is $8, and a majority of them are eligible for retirement now.
The average age of the Panel's part-time judges is higher, and all part-time judges are currently eligible to retire.
B.
Professional and Support Staff i
i Support for the activities of the ASLBP, individual Licensing Boards, and the Panel's judges is structured along functional lines:
(1) legal; (2) technical; and (3) administrative.
The Chief Administrative Judge of the ASLBP manages and supervises these functional areas through interrelated support activities.
1.
Legal Support Staff The Panel's principal, full-time legal support was provided in FY 1988 by the Panel's Chief Counsel.7 He l
furnished advice, legal research, drafting support, and other assistance to Boards in individual cases and to the Chief Administrative Judge on a broad range of legal and policy matters.
The formal law clerk component of the Panel's legal support was terminated in 1986 because af badget cuts.
- However, due to extraordinary demands in the Seabrook proceeding, the Panel was authorized in FY 1988 to hire two temporary full-time FTE's for necessary legal support.
As a result of this special authority, the Seabrook Board obtained 6 This reflects an increase of one FTE over fiscal year 1987 due to a special situation.
I The Panel's long-term Chief Counsel left the ASLBP for 7
private practice at the mid-point of the fiscal year.
Because the new Counsel was unable to join the Panel until the fourth quarter of the fiscal year, the Panel and individual Licensing Boards were without any legal support for a substantial period during the year.. _ _ _ _ _ _ _ - _ _ -
ASLBP ANNUAL REPORT Fiscal Year 1988 the temporary services of one full-time special counsel and two part-time law clerks.
2.
Technical Support Staff Historically, Licensing Boards had been able to count on technical support from an ASLBP reactor safety engineer and a health scientist.
However, both positions were vacated in 1984 and were not filled due to personnel ceiling limitations.
Consequently, the Panel had to use Administrative Judges (Technical), when and if available, to perform these support functions.
However, at the end of FY 1988, the Panel obtained the services of a Senior Technical Advisor who transferred from the management ranks of the Office of Research.
3.
Administrative Support Staff (1)
Program Support Administrative support is furnished under the direction of the Director and Assistant Director of the Program Support and Analysis Staff.
See Appendix A.
They provide all l
analyses and support for budget, personnel, part-time Panel judges support, labor relations, travel, space and facilities at headquarters and in hearings nation-wide, training, FOIA, license fee data, security, and contracts. These two officers have primary responsibility, agency-wide, for the NRC's court reporting contract used in all official proceedings except for the Commissioners.
(2)
Information Processing Section The Chief of the Information Processing Section reports to the Director and Assistant Director.
The section is responsible for development and implementation in support of:
(1) Docket management; (2) Mail distribution; (3) ADP systems; (4) Panel administration aNL individual proceedings support (particularly CAP), and (5) providing training in the use of the Panel's computerized
- systems, including
- software, hardware, and INQUIRE.
See Section V.B.,
infra.
Paralegal and stenographic work, as well as the court reporting contract and field services support are carried out by a small staff of paralegals, legal secretaries, and information specialists. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ -
"4 l
l l
l l
V.
IMPROVEMENTS IN HEARING ADMINISTRATION A.
GENERAL Due to restrictions on support personnel and concerns over the costs. of delays in the Commission's licensing process, the Panel has moved rapidly towards achieving the goal of an " electronic" office, particularly in-the management of its voluminous. and complex hearing records.
Important administrative tasks like travel and timekeeping have been computerized.
All the Panel's judges and critical support-personnel are provided the necessary hardware and software to permit.the full use of their electronic workstation and the Panel's computerized docket.
B.
COMPUTERIZED PROCEEDING RECORDS l
i During fiscal year 1988, the scope, capabilities and availability of the Panel's Computer Assistance Project '(CAP) were greatly enhanced.
The purpose of CAP is to capture, electronically, the full text of the record for decision in a complex case.
In place at the outset of a large case, CAP permits electronic filings of pleadings and hearing documents j
and the electronic storage, in retrievable form, of all or part of the hearing record created during the proceeding.
This is, in. essence, the major goal of the Licensing Support Sy9 tem currently being contemplated for use in the projected High-Level Waste Repository-proceeding.
CAP automation permits enormously expedited record searches and faster and more complete decisiru making, both resulting in shortened j
hearings.
By using resources for.the most part already in
- place, the cost-benefit ratio for large cases has been substantial. !
_-__-_-.__--___J
r;,
n ASLBP ANNUAL REPORT Fiscal Year 1988 1.
Components CAP, as currently structured, has seven components:
(1) the judges' electronic workstations; (2) general office support equipme (3) electronic databases in' full-text, searchable form;gt;(4) electronic' filing of selected documents by the parties; (5)
ASLBP issuances; (7)
Appeal Board issuances; and (7) a database search and retrieval system (INQUIRE).
During
'FY. ~ 1988, each judge was provided a workstation composed of an IBM XT personal computer with a 20 megabyte hard disk, a printer, a modem, and appropriate software for word processing, -legal research through LEXIS and WESTLAW, -and XTALK for sending and receiving
- orders, memoranda, and pleadings.
In early FY 1989, alll personal computers will be hard-wired into the agency's mini-computers located in the Philips Building and One White Flint North.
In addition, all authorized agency personnel will have access to CAP using INQUIRE, either by modem or hard-wire to the agency's-mini-computers.
2.
Court Reporting Contract The ASLBP court reporting contract provides for computer readable diskettes of the transcript of the hearing in large, complex cases.
In the appropriate case, parties are directed to file findings of fact, conclusions of law, and prefiled testimony on computer readable diskettes.
Such filings are in ASCII (the American Standard Code for Information Exchange) to overcome the problem of incompatible computers and software.
Each. day's filings are them compiled and fully indexed by the Panel's Information Processing Section, usually a half-hour task.
3.
Application Thus, CAP enables a judge, without leaving his or her workstation, to draft an -Initial Decision, search a large record, conduct legal research, and integrate the draft with the work of the other two judges on the Licensing Board.
In addition, CAP helps compensate for the loss of law clerks and the reduction in Licensing Panel secretarial support.
The 8
The databases currently include, for selected proceedings, all hearing transcripts, prefiled testimony, proposed findings of fact and conclusions of law, and headers for all documents filed i
by all parties.
j l L
l ASLBP ANNUAL REPORT Fiscal Year 1988 resolution of large, complex summary disposition motions (often the equivalent of a case within a case) has many times been substantially expedited by CAP.
Time lost at hearings to search for documents and witness statements should also be sharply reduced.
- Judges, using the Panel's high-speed portable computer can now easily transport all or part of the case record to the hearing site and, when necessary, for example during cross-examination, find a particular document, question, or answer among 10,000 pages of material in a matter of seconds.
The ABA Judoes Journal published a description of the CAP system by Judge Cotter, entitled "When the Electronic Judge Meets the Electronic Lawyer," as the lead article in its Spring 1988 issue.
4.
INQUIRE To realize the full value of CAP and to make it more widely available, ASLBP developed
- INQUIRE, a
full text adjudicatory document storage and retrieval system as an adjudicatory management program.
INQUIRE is a database management system for mini and main frame computers that stores and retrieves the full text of the Panel's adjudicatory records and related issuances. The system utilizes the newest IBM search and retrieve technology in retrieving information from the database. Custom-designed, user friendly, form fill-in panels and menus eliminate the users' need to learn the i
system's search commands or understand its supporting computer l
logic.
As of the close of the fiscal year, upwards of 18,000 pages of the Seabrook proceedings and 6,500 pages of the
)
Shoreham OL-3 proceeding had been loaded onto the system. The Panel is also moving forward to include, on the date of issuance, the decisions of both the Licensing Boards and the Atomic Safety and Licensing Appeal Boards. In fiscal year 1989, the Panel will begin to load into the system, on the date of receipt, an abstract of every document received in the office.
CAP and its companion INQUIRE has been the subject of much interest by other adjudicatory bodies and legal associations both in the United States and Canada.
Representatives of the Department of Agriculture, the Department of Housing and Urban Development, the U.S. District Court for the District of Columbia, the National Judicial College, the National Labor Relations Board, the New York Public Utility Commission, and the U.S.
Claims Court came to _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ -
ASLBP ANNUAL REPORT Fiscal Year 1988 the Panel during the year to be briefed on CAP.
In connection with the expected license application for the construction of the high-level nuclear waste repository, the Panel took an active role in developing the procedural rules for that licensing proceeding, as well as the planning for the proceedings' Licensing Support System (LSS), a state-of-the-art full-text and image computerized document retrieval system.
It is expected that the LSS will be fully compatible with the Panel's own pioneering Computer Assistance Project.
Equally important, the Panel's judges and staff will be fully conversant in the use and operation of full-text retrieval systems like the LSS.
C.
HEARING PROCEDURES In addition to its-efforts to computerize the licensing process, the Panel has. moved aggressively to use traditional case management tools under the Commission's rules of practice to streamline and focus the licensing process. In many cases, the hearing on a particular application for a nuclear facility license may be divided into several discrete topics (e.g.,
onsite versus offsite emergency
- planning, environmental
- issues, and reactor health and safety considerations).
Consequently, in complex cases, the Panel has often created
- separate, parallel licensing boards for each topic.
In addition to the time saved through parallel adjudication, each board can be assigned Panel judges whose expertise matches the~ issues to be resolved. Even single boards frequently structure their hearing schedule into distinct phases, each dealing with related groups of issues.
This case management allows the parties to narrow their hearing preparation efforts and' focus their discovery.
In addition, Licensing Boards have taken an active role in shaping the issues before them through an active involvement in the most time-consuming segment of the Commission's licensing process--the pre-hearing discovery phase.
All Boards establish litigation schedules at the outset.
Then, pre-hearing conferences are routinely utilized to review and define proposed contentions, to clarify the scope and timing of discovery, to develop realistic hearing schedules, and to resolve potentially time-consuming procedural disputes among the parties.
Perhaps the most efficient prehearing conference mechanism, given the far-flung l
ASLBP ANNUAL REPORT Fiscal Year 1988 location of parties, is the frequent use of the telephone for prehearing conferences. The discovery process is continuously monitored in an effort to identify and resolve as early as possible unnecessary, excessive or duplicative discovery l
requests.
As a
- result, the vast majority of proposed contentions in operating license proceedings are resolved prior to hearing. Equally important, the resolution of issues has occurred through a process which involves direct and timely interaction between the Licensing Board and the parties, anchored in the fundamental fairness to all parties mandated by law.
1 D.
COURT REPORTING CONTRACT During FY
- 1988, the Licensing Panel managed the Commission's $1.2 million court reporting contract for all in-town and out-of-town court proceedings except those of the Commission itself.
The Panel furnished such services to 13 other Commission offices:
the Appeal Panel
( ASLAP) ; the j
Advisory Committee on Reactor Safeguards (ACRS) ; the Advisory Committee on Nuclear Waste (ACNW);
and the Offices of Administration (ADM), Analysis and Evaluation of Operational Data (AEOD), General Counsel (OGC) ; Government and Public Affairs (GPA),
Information Resources Management (IRM);
Investigations (OI),
Inspector and Auditor (OIA), Nuclear Materials Safety and Safeguards (NMSS),
Nuclear Reactor Regulation (NRR), and Personnel (OP).
All told, some 230,000 pages of originals and copies were contracted for and managed for accuracy and billing.
The Panel is particularly interested in additional developments that would expedite not only the hearing process, but all Commission operations, through electronic filings.
j We anticipate that computer capture of all types of NRC proceedings, adjudicatory and non-adjudicatory, will become the norm.
Indeed, as the fiscal year closed, both the Office 1
of the Secretary and the Office of the General Counsel had l
indicated an interest in learning more about CAP and INQUIRE with an eye towards its possible use in their operations.
Finally, the Panel is drafting a revision to the Rules of Procedure, 10 C.F.R. Part 2,
at the request of Chairman l ;
I
ASLBP ANNUAL REPORT Fiscal Year 1988 Zech.'
The revision will seek to correct several infirmities in the rules as they exist today.
The current rules are based on the status of litigation in the late 1950's, and have never been comprehensively revised.
Rather, they have been patched up on an ad hoc basis for the last 30 years.
The rules sorely need both updating and a " plain English" rewrite.
In recent years, specialized rules for particular t have proliferated, some with little value.ypes of proceedings The Panel should have a
single set of rules for all proceedings, a
simplification that the Federal Courts take for granted despite their unlimited range of subject matter jurisdiction.
'The Panel's first effort in this regard, SECY-85-290 (August 29, 1985) was suspended by the Commission pending action on the recommendations of the Regulatory Reform Task Force.
10For example, 10 C.F.R. Part 2,
Gubpart J,
the rules governing proceedings on spent fuel pool expansions, were published in final form in 1985 and had never been used or invoked as of the end of FY 1988. - -__ _ __-__ -
i l
l l
VI.
CONCLUSIONS A.
1988 in Retrospect Fiscal Year 1988 witnessed more new case filings and more case' closings than in any recent year..At the same time, the Licensing Boards have maintained or increased their.ratefof
-resolving disputed matters prior to hearing.
In large measure, this success is due to the active involvement of the i
Panel's experienced judges in the management of their cases l
and their continuous monitoring of the ebb and flow of l
litigation.
B.
Present Indications of Future Trends The analysis of the FY 1988 docket confirms the Panel's continued ability to reduce the number of disputed issues ultimately requiring resolution through a hearing.
- However, several trends suggest possible future impediments to continued success in prehearing dispute resolution as the type of cases before the Boards and the issues they raise begin to change as we enter the 1990's.
While the Panel expects no great difficulty in resolving these impediments, it is well to note them.
First, the rate at which contentions are resolved prior to hearing is at its lowest in decommissioning and license amendment proceedings, the cases likely to characterize the near-term Panel caseload.
- Second, the rate of
- early, prehearing resolution of contentions is lowest with respect to safety contentions, the type of. issues likely to play a large ' role in any future plant life extension proceedings.
Third, challenges to the Commission's Severe Accident Policy,
.if ultimately successful, could result in the admission of severe accident contentions under NEPA in individual licensing ___ _ -_-___ _-_ _
a
ASLBP ANNUAL REPORT Fiscal Year 1988 cases.
Such contentions, which typically rest upon arguments founded on disputes at the edge of scientific confidence, could produce heavily-litigated, single issue proceedings.
Fourth, once the last of the operating license proceedings are closed, the change in the nature of cases filed with the l
- Panel, will demand different types of technical expertise of the Panel than those typically required to appropriately staf f OL proceedings.
This will be particularly the case with respect to the high-level waste repository proceeding, where a combination of expertise in the earth sciences and the efficient conduct of adjudicatory hearings will be essential.
The Panel is alert to the possible adverse impacts of these factors on its ability to manage both its cases and the contentions they present.
Where appropriate, the case management techniques developed principally with respect to operating license proceedings (particularly multiple Boards) will be applied to other categories of cases. Where possible, those techniques will be modified to the unique technical or practical demands of new forms of proceedings (for example, the
- HLW, plant life extension, and one-step licensing proceedings).
And where necessary, the Panel intends to explore new approaches to case and contention management with the goal of structuring and conducting efficient, fair and full adjudications.
C.
Fiscal Year 1989 Projection I
The Panel expects the number of cases on its docket to continue to drop slightly in FY 1989 as the remaining operating license proceedings, with their multiple Boards, come to a close.
However, it is likely that the number of new enforcement cases that characterized FY 1988 will continue in FY 1989.
Moreover, of the three suspended cases carried over to FY 1989, at least one will be activated.
Finally, recent action by the courts will result in several additional remand proceedings during the upcoming fiscal year.
D.
Five Year Projection 1.
General During the next five years, Fiscal Years 1989-1993, the NRC will have some regulatory responsibility for up to 120 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _
ASLBP ANNUAL REPORT Fiscal Year 1988 nuclear reactors, over 50,000 devices manufactured per year under General Nuclear Licenses, some 8,000 materials licensee, and some 2.75 million nuclear material package shipments. All of these activities foretell a
substantial litigation caseload.
In
- addition, the first two plant life extension applications (of 35 expected by the year 2000) will be filed in 1991. There are also approximately six partially completed but deferred plants that may seek licenses.
Finally, the Panel may see cases on applications for early site approval for evolutionary and newly designed nuclear power plants.
2.
The High Level Waste Repository The Department of Energy's application to build and operate a permanent high level waste repository promises to be the largest administrative law proceeding in history.
The combination of an 18 month statutory period to hear and decide the matter and a projected database of 11 million discovery documents is estimated to require the services of a
substantial number of the Panel's judges.
At least three judges will begin dealing with discovery issues in 1992 as members of a Pre-Application Licensing Board.
If the application is filed on schedule in 1995, it will require a large corps of experienced judges with the broadest possible range of legal and technical expertise.
E.
Judicial Resources Given the likely depletion in the ranks of the Panel's judicial workforce, a new challenge looms on the horizon in continuing the present rate of success in managing both the cases and contentions of the new, potentially more complex and l
controversial matters, described above.
Case management may become particularly challenging because the losses in judges have reduced not only the number of available judges, but also the depth and range of expertise represented on the Panel.
Replacing the Panel's judges will be difficult because of the hostile envirw ent in which they must work and depressed Government sa",
iles.
verhaps the most unusual aspect of the present resource is the command the Panel's technical judges have of the litigation process. l i
1 l
1 APPENDICES l
E S
A R
E O
A P
L E
D I
S RS S
H P
A A
G I
D OI E
C V
D E
O I V I
R C
ND V
L P
E A O
R R
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D LE N
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FC
. ON H S
D rZ OT R R S
J A H I E E E
R
,LS M B Y S
.S MWWA Y
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R.
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RUNI EE EN,
H
. T S
H H S M I Y N
O C H T I I MT IS C E
E C R T DL D
L N
N E T OMT N
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,E I
A.
A ( (
EO L
S M
N NCA ) P SE R EE O
P2 GG A
I L
( L I
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I O CJ J G I A N I N I A DD P
SE R I
T N
R H UUE S N ODV I
R L A A
A H
(
D E
Z E T EEU H
M L
N H U EVVJ OE L ;
,E I
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CH US T M D
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( E UI E
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I ESSE p
EEI I C F O J R R L H
E RA T T T
.S N T H AG A
ES Y O ICS VI INI B D D N N D V
YGGGT R
S I
I N I A DJ J A
F M T I M T
UUE AR F O A M C
OC R D DR E
DRO T
I T AAT T EE N A B E
M Y E I F F I IOTI IVAE S
S N V S
R H
,H O
OT N E E N T
A F
T T
P A ASO A
A US I I I I P R R T H E M H H M T N D CC D AT T SWV A O A
A S S I R
S T
I F T T F D N I T SE Y Y SI S T N N ES C
E UUE R
E N I P PI A
I I E G M M I DD C
H U H E E H OD D CUN T F CD DC B AA S J A I
M O
TA N,T G
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OR E
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,NI TR I
N A P I
N M U T
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O T A R S N L F T L
I O
S
, TF E P C
T F T T
M N E R F E D N C K
E
. E OA G N J R W
OE I C H
O A A P T I
I S W
N P D T
D P S A
.D U
ME C
E AG AD V
N S S LI T
MN L A J
I L T N
RI L
A MS AA A
OS R
S T
N E E I F
ON VI P S
O IDT G A IDI R N O I
I C S
E VI I
R OG H
R D U R O P
P A S A
P PL C
ll
Appendix B ATOMIC SAFETY AND LICENSING BOARD PANEL Fiscal Year 1988 I.
PANEL MEMBERS l
A.
Officers' B.
PAUL COTTER, JR.
CHIEF ADMINISTRATIVE JUDGE DR. ROBERT M.
LAZO DEPUTY CHIEF ADMINISTRATIVE JUDGE (EXECUTIVE) i l
FREDERICK J.
SHON DEPUTY CHIEF ADMINISTRATIVE JUDGE (TECHNICAL)
IVAN W.
SMITH CHIEF ADMINISTRATIVE LAW JUDGE l
B.
Full-Time Administrative Judaes 1.
Leaal JUDGE CHARLES BECHHOEFER JUDGE PETER B.
BLOCH JUDGE JOHN H.
FRYE, III JUDGE HELEN F.
HOYT JUDGE MORTON B. MARGULIES JUDGE SHELDON J. WOLFE 2.
Technical JUDGE GLENN O.
BRIGHT JUDGE RICHARD F.
COLE Engineer Environmental Scientist i
l
' All ASLBP Officers, professional and administrative staff and full-time members are based in Bethesda, Maryland.
I i
l JUDGE' JERRY HARBOUR JUDGE JERRY R.-KLINE Geologist Environmental-Scientist JUDGE GUSTAVE A.LINENBERGER JUDGE OSCAR H.
PARIS Physicist Environmental Scientist.
JUDGE PETER A. MORRIS Physicist (Retired October 1987)
C.
Part-Time Administrative Judaes 1.
Leoal l
JUDGE HUGH K.
CLARK, Retired Attorney, E.I.
duPont deNemours
~
& Company,. Kennedyville, Maryland (Judge Clark retired in June 1988)
JUDGE JAMES P. GLEASON, Attorney, Silver Spring, Maryland JUDGE GARY:L. MILHOLLIN, Professor, University of Wisconsin School of Law, Madison, Wisconsin JUDGE MARSHALL E.
- MILLER, Retired
- Judge, U.S.
Nuclear Regulatory' Commission, Washington, DC JUDGE SEYMOUR WENNER, Retired Chief Administrative Law Judge, Postal Rate Commission, Chevy Chase, Maryland C
2.
Technical JUDGE GEORGE C.
ANDERSON, Marine Biologist, University of Washington, Seattle, Washington JUDGE A.
DIXON CALLIHAN, Retired Physicist, Union Carbide Corporation, Oak Ridge, Tennessee JUDGE JAMES H.
CARPENTER, Oceanographer, Atomic Safety and Licensing Board Panel, Bethesda, Maryland JUDGE MICHAEL A. KIRK-DUGGAN, Economist, University of Texas, Austin, Texas l
JUDGE GEORGE A.
- FERGUSON, Retired Physicist, Howard University, Washington, DC B-2 a
JUDGE HARRY FOREMAN, Medical Doctor, University of Minnesota, Minneapolis, Minnesota l
JUDGE RICHARD F.
FOSTER, Environmental Scientist, Sunriver, Oregon
(
JUDGE CADET H.
- HAND, JR.,
Marine Biologist, University of l
California, Bodega Bay, California JUDGE DAVID L.
- HILL, Nuclear Engineer, Hill Associates, Danville, California JUDGE FRANK F.
- JOHNSON, Nuclear Engineer, Oak Ridge National Laboratory, Oak Ridge, Tennessee JUDGE WALTER H.
- JORDAN, Retired Physicist, Oak Ridge Laboratories, Oak Ridge, Tennessee JUDGE JAMES C.
LAMB, III, Sanitary Engineer, University of North Carolina, Chapel Hill, North Carolina JUDGE EMMETH A.
- LUEBKE, Retired Physicist, U.S.
Nuclear Regulatory Commission, Bethesda, Maryland JUDGE KENNETH A. MCCOLLOM, Electrical Engineer, Oklahoma State University, Stillwater, Oklahoma JUDGE DAVID R.
SCHINK, Oceanographer, Texas A&M University, College Station, Texas JUDGE MARTIN J.
STEINDLER,
- Chemist, Argonne National Laboratory, Argonne, Illinois II.
PROFESSIONAL STAFF C. SEBASTIAN ALOOT, Director and Chief Counsel, Legal Support Staff DR. CHARLES N.
KELBER, Senior Technical Advisor ROBERT PIERCE, Counsel to Seabrook Licensing Board B-3
I III.
ADMINISTRATIVE OFFICERS CHARLES J. FITTI, Director, Program Support and Analysis Staf f ELVA W.
- LEINS, Assistant
- Director, Program Support and Analysis Staff JACK G.
WHETSTINE,
- Chief, Information Processing Section (Computer Prograus)
BIOGRAPHICAL SKETCHES ANDERSON, George, C.
Education:
B.S.,
University of British Columbia (1947); M.A., University of British Columbia (1949);
Ph.D.,
University of Washington (1954).
Experience:
Dr.
- Anderson, currently Professor Emeritus at the School of Oceanography, University of Washington, has been a part-time member of the ASLBP since 1973.
In addition to authoring over 40 publications in the fields of limnology and oceanography, Dr.
Anderson has held numerous
- teaching, research, and administrative positions over his forty-year career with the University of Washington, the AEC and the National Science Foundation.
He.was Director of the University's School of Oceanography for several years.
BECHHOEFER, Charles.
Education:
A.B.
magna cum laude, Harvard College (1955); LL.B., Harvard Law School, 1958.
Experience:
Judge Bechhoefer has been a full-time legal member of the ASLBP since 1978.
Prior to being appointed to the ASLBP, his federal service included positions as Counsel to the. Atomic Safety and Licensing Appeal Board, attorney with the Office of the General Counsel of the AEC, and attorney-adviser in the Office of the General Counsel, U.S.
Housing and Home Finance Agency.
He is currently the Editor of the Administrative Judiciary News and Journal of the National Conference of Administrative Law Judges, and has held several leadership positions within the Section of Administrative Law of the American Bar Association.
BLOCH, Peter B.
Education:
B.S.,
Tufts University (1962); LL.B, Harvard Law School (1965);
LL.M., Harvard Law School (1967).
Experience:
Judge Bloch has been a full-time member of the ASLBP since 1981.
His prior positions include Assistant Director of the Office of Hearings and
- Appeals, U.S.
Department of Energy, Attorney-Advisor, Office of Opinions and Review, FERC, Executive Director of the Commission on Law and B-4
the Economy of the American.Bar Association, Senior Research Associate and Project Manager, the Urban Institute, and Attorney-Adviser, U.S.
Securities and Exchange Commission.
Judge Bloch has authored several articles on the conduct and management of criminal investigations.
BRIGHT, Glenn O.
Education:
B.S., University of Oklahoma (1949) ;
M.S.,
University of Oklahoma - (1950).
Experience:
Judge Bright has been a. full-time member of the ASLBP since 1972.
Prior to his appointment to the Panel, he spent 22 years with the Phillips Petroleum Company or its successor subsidiaries in various technical and management positions overseeing nuclear matters, including one year as a technical consultant to the Government of Venezuela, and several years at the Idaho National Engineering Laboratory in charge of experiments for SPERT I and SPERT II.
CALLIHAN, A.-Dixon.
Education:
A.B.,
Marshal College (1928);
M.A.,
Duke University ~ (19 31) ;
Ph.D.,
New York University (1933) ; D.Sc. (Hon. ), Marshall University (1961).
Experience:
Dr. Callihan has been a part-time member of the ASLBP since 1963.
In his 54 year career, he has held positions as a physicist with the Union Carbide Corporation and Columbia University, and Assistant Professor at the College of the City of New York.
Dr. Callihan is currently the Chairman or member of several committees concerning nuclear reactor operations for the United States Army, and the American Nuclear Society.
During 1988, he was awarded the American National Standards Institute's Meritorious Service Award.
CARPENTER, James H.
Education:
B.A.,
University of Virginia (1949);
M.A.,
Johns Hopkins University (1951);
Ph.D.,
Johns Hopkins University (1957).
Experience:
Dr. Carpenter has been a full-time member of the ASLBP since 1981.
In addition to numerous publications in the areas of marine science and environmental chemistry and research activities for the Chesapeake Bay Institute, Dr. Carpenter has held teaching and administrative positions with Johns Hopkins University and the University of Miami.
During his 31 year career, Dr. Carpenter has been on the editorial boards of several national journals, held senior positions in several professional associations, and chaired or participated on numerous professional committees on environmental issues, particularly the marine environment.
Dr. Carpenter was a member of the Committee that issued the BEIR I report.
COLE, Richard F.
Education:
B.S.C.E.,
Drexel University (1959);
M.S.S.E., Massachusetts Institute of Technology (1961) ; Ph.D.,
University of North Carolina (1968).
Experience:
Dr. Cole has been a full-time member of the ASLBP since 1973.
In B-5
i addition to numerous articles on water, wastewater treatment, and international training of environmental engineering, Dr.
Cole has held
- teaching, administrative, or engineering positions in the United States and Guatemala with the University of North Carolina, Pennsylvania State University, and the State of Pennsylvania. He has held several leadership positions and committee assignments with numerous professional associations, and is a Diplomate of the American Academy of Environmental Engineers.
During
- 1988, Judge Cole was appointed to the Radiation Protection Subcommittee of the American Academy of Environmental Engineers and served as Secretary-Treasurer of the Inter-American Association of Sanitary Engineering.
- COTTER, B.
Paul, Jr.
Education:
A.B.,
Princeton University (1959);
J.D.,
Georgetown University (1968).
Experience:
Judge Cotter has been the Chief Administrative Judge of the ASLBP since 1980.
Prior to his appointment to head the Panel, Judge Cotter was a member and then Chief Administrative Judge of the Department of Housing and Urban Development Board of Contract Appeals, a trial. attorney with the U.S.
Department of Transportation, and in private practice for six years.
He is a faculty member of the National Judicial College, a
recognized leader in the use of computers in managing complex cases, and has held several leadership positions with the National Conference of Administrative Law Judges, the American Bar Association, and the Federal Bar Association.
During 1988, Judge Cotter served on the faculty of the National Center for State Courts' National Conference on Court Technology, spoke at the Annual meetings of the Federal and American Bar Associations, was elected a member of the American Law Institute, and was appointed Chair of the Federal Judiciary Committee and a member of the National Council of i
the Federal Bar Association.
FERGUSON, George A.
Education:
B.S.,
Howard University (1947);
M.S.,
Howard University (1948);
Ph.D.,
Catholic University (1965).
Experience:
Dr. Ferguson has been a part-time member I
of the ASLBP since 1972.
During his 38 year career, he has held teaching, administrative and research positions with l
Howard University, the U.S.
Naval Research Laboratory, the l
University of Pennsylvania, and Clark College where he was Chairman of the Physics Department.
Dr. Ferguson is a member i
of the American Physical Society and several teaching associations.
FOREMAN, Harry.
Education:
B.S.,
Antioch College (1938);
Ph.D.,
Ohio State University (1942);
M.D.,
University of California (1947).
Experience:
Dr. Foreman has been a part-time member of the ASLBP since 1971.
In addition to authoring numerous B-6
]
professional papers in the biological and chemical fields, Dr.
Foreman has held
- teaching, administrative and research positions with the University of Minnesota and the University of California, the latter involving work in the area of radiation and biomedical research at Los Alamos.
FOSTER, Richard F.
Education:
B.S., University of Washington (1938);
Ph.D., University of Washington (1948).
Experience:
Dr. Foster has been a part-time member of the ASLBP since 1981.
Dr.
Foster is the author of numerous professional papers on the discharge of heat and radionuclides into water pathways, and has headed or participated on several panels and committees on radiation and the environment for, among others, the U.S.
Public Health Service, the National Academy of Sciences, the International Atomic Energy Agency, and the NRC Advisory Committee on Reactor Safeguards.
During his 46 year
- career, Dr.
Foster has also held research and management positions with the State of Washington, the University of Washington, and numerous Laboratories and companies at the Hanford Washington facility.
t FRYE, John H.,
III.
Education:
A.B., Davidson College (1958);
LL.B., Vanderbilt University (1965).
Experience:
Judge Frye has been a full-time member of the ASLBP since 1981.
Prior to his appointment to the Panel, Judge Frye was the Counsel to the Panel and was in private practice in Washington DC for eight years.
He has held leadership positions with numerous committees of the Federal Bar Association, and has published in various law journals.
- GLEASON, James P.
Education:
B.S.S.,
Georgetown University (1948);
LL.B.,
Georgetown University (1950).
Experience:
Judge Gleason has been a part-time member of the ASLBP since 1980 and held a similar appointment from 1967-1970.
During his 37 year career, Judge Gleason has held numerous elective and appointive offices at the coonty, state and federal level, taught at the University of Maryland and Harvard University, maintained a private law and consultant practice, and served as an aide to two U.S.
Senators.
{
i HAND, Cadet H.,
Jr.
Education:
B.S.,
University of Connecticut (1946);
M.A.,
University of California, Berkeley (1948);
Ph.D., University of California, Berkeley (1951). Experience:
Dr. Hand has been a part-time member of the ASLBP since 1971.
Currently Emeritus Professor and Emeritus Director of the University of California Bodega Marine Laboratory, Dr. Hand has held teaching, research and administrative positions with Mills College, the Scripps Institution of Oceanography, the University of California, Berkeley, and the University of California, Davis, f
l B-7 l
I 3
i HARBOUR, Jerry.
Education:
B. A., University of New Mexico (1951) ;
M.S.
University of New Mexico (1958);
Ph.D.,
University of I
Arizona (1966).
Experience:
Dr. Harbour has been a full-time member of the ASLBP since 1981.
In addition to publishing numerous articles in the field of geology, Dr. Harbour has held geologist and research positions at a number of Federal Government departments and agencies, including the U.S.
Geological Survey, the Institute for Defense Analyses, the AEC and the NRC.
- HETRICK, David L.
Education:
B.S.,
Rensselaer Polytechnic Institute (1947);
M.S.,
Rensselaer Polytechnic Institute (1950); Ph.D., University of California, Los Angeles (1954).
Experience:
Dr. Hetrick has been a part-time member of the ASLBP since 1972.
He has held teaching positions at the University of
- Bologna, Italy, University of
- Arizona, California State University, Northridge, and Rensselaer Polytechnic Institute.
He has also been a physicist with Rockwell International, International Controls Corporation, the United Kingdom Atomic Energy Agency, and the Los Alamos Scientific Laboratory.
- HILL, Ernest E.
Education:
B.S.,
University of California, Berkeley (1943);
M.S.,
University of California, Berkeley (1959).
Experience:
Judge Hill has been a part-time member of the ASLBP since 1972.
Currently the President of Hill Associatec, a nuclear engineering consulting company, Judge Hill has held numerous nuclear engineer and management positions with the AEC and the Lawrence Livermore National Laboratory.
- HOOPER, Frank F.
Education:
B.A.,
University of California l
(1939);
Ph.D.,
University of Minnesota (1948).
Experience:
Dr. Hooper has been a part-time member of the ASLBP since 1973.
Currently a Professor Emeritus at the University of
- Michigan, Dr. Hooper has held teaching and administrative positions at the University of Michigan, the Institute for Fisheries Research, and the University of Minnesota.
In 1962-63 and again in 1966, Dr. Hooper was an aquatic ecologist with the AEC.
From 1979 to 1988, he was Chairman of the Ecology, Fisheries and Wildlife Program in the School of Natural Resources at the University of Michigan.
HOYT, Helen F.
Education:
A.B.,
University of Georgia (1949);
LL.B.,
Emory University (1951).
Experience:
Judge Hoyt has been a full-time member of the ASLBP since 1981.
Prior to her appointment to the Panel, Judge Hoyt was an Administrative Law Judge and Senior Trial Attorney with the Interstate Commerce Commission.
Judge Hoyt also served in the Air Force for ten B-8
years, rising to the position of Air Force Judge Advocate General for Turkey.
She is a member of and has held various leadership positions in a broad range of bar associations and professional societies.
- JOHNSON, Elizabeth B.
Education:
B.S.,
Western Kentucky University (1943);
M.S.,
Vanderbilt University (1952).
Experience:
Judge Johnson has been a part-time member of the ASLBP since 1975.
Currently on the staff of the Instrumentation & Controls Division of the Oak Ridge National Laboratory, Judge Johnson has held physicist and engineer positions on various Union Carbide Corporation nuclear projects at Oak Ridge and elsewhere, and was a research assistant with the Manhattan Project.
During her 44 year career, Judge Johnson published numerous AEC and professional papers, principally concerned with reactor experiments and j
nuclear criticality.
JORDAN, Walter H.
Education:
A.B., University of Oklahoma (1930) ;
M.S.,
University of Oklahoma (1931);
Ph.D.,
California Institute of Technology (1934).
Experience:
Dr. Jordan has been a part-time member of the ASLBP since 1970.
Dr. Jordan is the author of numerous articles, professional papers and books in the nuclear and radar field, and is a Fellow of the American Nuclear Society and the American Physical Society.
In addition to teaching positions at the University of South Dakota and the University of Tennessee, Dr. Jordan spent twenty-seven years with the Oak Ridge National Laboratory in various research and management positions.
KIRK-DUGGAN, Michael A.
Education:
B.S.,
College of the Holy Cross (1953) ; J.D., Boston College (1956) ; M.P.L., Georgetown University (1959).
Experience:
Judge Kirk-Duggan has been a part-time member of the ASLBP since 1972.
Currently a Professor in Business Law and Computer Sciences at the University of Texas, Judge Kirk-Duggan has held teaching, engineer and attorney positions with the University of New Hampshire, Sylvania Data Systems, and the Antitrust Division of the U.S.
Department of Justice.
Judge Kirk-Duggan is on the editorial staff of several national journals and is the author of four books and over 875 articles, case comments, monographs, and reviews in the areas of economics, antitrust, law, and computer science.
KLINE, Jerry R.
Education:
B.S., University of Minnesota (1957);
M.S.,
University of Minnesota (1960);
Ph.D.,
University of Minnesota (1964).
Experience:
Dr. Kline has been a full-time member of the ASLBP since 1980.
Prior to his appointment to the Panel, Dr. Kline held various research and management positions with the Puerto Rico Nuclear Center, the Argonne B-9
National Laboratory, the AEC and the NRC.
He is the author of numerous scientific papers and reports in the fields of-radio-ecology and soil science.
During 1988, Judge Kline attended the International Nuclear Power Plant Aging Symposium.
LAMB, James C.,
III.
Education:
B.S.C.E.,
Virginia Military Institute (1947) ; M.S., Massachusetts Institute of Technology (1952); Sc.D., Massachusetts Institute of Technology (1953).
Experience:
Dr. Lamb has been a part-time member of the ASLBP since 1974.
Currently a Distinguished Visiting Professor of Civil Engineering at George Washington University and Professor of Sanitary Engineering at the University of North
- Carolina, Dr.
Lamb has also held
- teaching, engineer, management and research positions in private industry, the University of North Carolina, Massachusetts Institute of Technology, and Newark College of Engineering.
LAZO, Robert M.
Education:
B.S.,
University of Alberta (1946);
M. A., University of British Columbia (1950) ; Ph.D., University of Notre Dame (1954);
J.D.,
Rutgers University (1958).
Experience:
Dr. Lazo has been a member of the ASLBP since 1970, first in a part-time capacity and, since 1972, in a full-time capacity.
Between 1977-80, he served as the Executive Secretary of the Panel, and since 1980, as its Deputy Chief Administrative Judge.
Prior to joining the Panel as a full-time member, Dr. Lazo maintained a private legal practice and had been a member of the Patent Departments of both Standard Oil of New Jersey and Bell Telephone l
Laboratories.
During 1988, Judge Lazo attended the Federal Executive Institute and the American Nuclear Society's Topical Conference on Industrial Radiation and Radioisotope Measurement Applications.
i I
LINENBERGER, Gustave A.
Education:
B.A with honors, Rice University (1941).
Experience:
Judge Linenberger has been a full-time member of the ASLBP since 1972.
Prior to his appointment to the Panel, Judge Linenberger was the President and Board Chairman of Southern Nuclear Engineering, and held several senior management positions with Aerojet-General Corporation.
In addition, Judge Linenberger was a staff physicist with the Los Alamos Scientific Laboratory (1943 1956) and the Manhattan District Project of the University of California Radiation Laboratory.
LUEBKE, Emmeth A.
Education:
B.A.,
Ripon College (1936);
Ph.D.,
University of Illinois (1941).
Experience:
Dr. Luebke has been a full-time member of the ASLBP since 1972.
A Fellow of the American Nuclear Society and recipient of a Presidential I
Certificate of Merit for Microwave Radar Research, Dr. Luebke B-10
spent 27-years in private' industry involved in the. design, testing and operation of nuclear power plants for submarines.
Before that, he held a teaching position at the University of Illinois and a research leader position at-the Massachusetts Institute of Technology.
During 1988, Judge Luebke attended the International Nuclear Power Plant Aging Symposium.
McCOLLOM, Kenneth A.
Education:
B.S.,
Oklahoma State University (1948) ; M.S., University of Illinois (1949) ; Ph.D., Iowa State University (1964).
Experience:
Dr. McCollom has been a part-time member of the ASLBP since 1972.
He is currently Dean and Professor Emeritus of the College of Engineering, Architecture and Technology, Oklahoma State University.
During his 39 year career, he has held teaching, research and administrative positions with the Oklahoma State University, Iowa State University, and the Atomic Energy Division of Phillips Petroleum Company.
In
- addition, he has held numerous leadership positions with several professional associations and the Oklahoma Board of Registration for Engineers and Land Surveyors.
MARGULIES, Morton B.
Education:
B.A.,
Brooklyn College (1953);
J.D.,
~ Brooklyn Law School (1954).
Experience:
Judge Margulies has been a full-time member of the ASLBP since 1982.
Prior to his appointment to the Panel, Judge Margulies served as an Administrative Law Judge-(1969-1982), Regional Counsel and Trial Attorney for the Interstate Commerce Commission, and i
as a member of the Army Judge Advocate General's Corps.
MILHOLLIN, Gary L'.
Education:
B.S.,
Purdue University (1961);
J.D.,
Georgetown University (1965);
J.S.D.,
Columbia University (1970).
Experience:
Judge Milhollin, currently a Professor of Law at the University of Wisconsin School of Law, Madison, Wisconsin, has been a part-time member of the Panel since 1976.
Previously, he held a teaching position at the Catholic University of America School of Law, was a Regional Attorney for the U.S. Office of Economic Opportunity, and engaged in the private practice of law.
MILLER, Marshall E.
Education:
A.D.
with honors, University of Illinois (1935);
LL.B.,
University of Illinois (1937).
Experience:
Judge Miller was a full-time member of the ASLBP (1974-1985) and has been a part-time member since 1985. Judge
- Miller was an Administrative Law Judge for the U.S. Department of Labor.for 11 years and previously a partner for 15 years in the Washington, DC law firm of Danzansky & Dickey.
He is the author of several books on legal practice.
PARIS, Oscar H.
Education:
A.B.,
University of North Carolina (1953);
M.A.,
University of North Carolina (1956);
Ph.D.,
i B-11
University of California, Berkeley (1960).
Experience:
Dr.
Paris has been a full-time member of the ASLBP since 1976.
Prior to his appointment to the Panel, Dr.
Paris held
- teaching, research and management positions with the University of Wyoming, University of California, Berkeley, and University of North Carolina.
Dr. Paris is the author of numercus papers, reports and reviews on such topics as population
- ecology, radiation
- ecology, adjudication of scientific evidence, and the biological effects of ionizing radiation.
During 1988, Dr. Paris attended the International Nuclear Power Plant Aging Symposium.
SCHINK, David R.
Education:
B.A.,
Pomona College (1952);
M.S.,
University of California, Los Angeles (1953); M.S.,
Stanford University (1958) ; Ph.D., University of California, San Diego (1962).
Experience:
Dr. Schink has been a part-time member of the ASLBP since 1974.
Currently a
Professor of Oceanography and formerly the Associate Dean of the College of Geosciences at Texas A&M University, Dr. Schink is the author of monographs and professional papers on marine geochemistry, silicon, radium, radon, and early digenesis.
Dr. Schink has also held teaching and research positions at the Palo Alto Laboratory, Teledyne Isotopes, University of Rhode Island, Scripps Institute of Oceanography, and Stanford l
University.
In addition, Dr. Schink has served on several Advisory Panels for the National Science Foundation and the United Nations.
- SHON, Frederick J.
Education:
B.S.,
Columbia University.
Experience:
Judge Shon has been a full-time member of the ASLBP since 1972 and currently serves as its Deputy Chief Administrative Judge (Technical).
Prior to his appointment to the Panel, Judge Shon held management positions with the AEC, and served as a physicist with the Lawrence Radiation Laboratory and several corporations within the nuclear industry.
Judge Shon has also served as a consultant on reactor safety to the Spanish and Danish AEC's, and taught nuclear engineering at the University of California, Berkeley.
During 1988, Judge Shon attended the International Nuclear Power Plant Aging Symposium.
SMITH, Ivan W.
Education:
Pre-Law, Ohio State University, Mexico City College, Kent State University (1946-48);
J.D.,
Wm.
McKinley School of Law (1952).
Experience:
Currently Chief Administrative Law Judge, Judge Smith as been a full-time member of the ASLBP since 1975.
Prior to his appointment to the Panel, Judge Smith served as an Administrative Law Judge for the Social Security Administration, Trial Attorney with the Federal Trade Commission, Deputy Director of the Ohio B-12
__________________________A
Department of Liquor Control, and engaged in the ' private practice of law.
STEINDLER, Martin J.
Education:
Ph.B.,
University of Chicago (1947);
B.S.,
University of Chicago (1948);
M.S.,
University of Chicago (1949);
Ph.D.,
University of Chicago (1952).
Experience:
Dr. Steindler has been a part-time member of the ASLBP since 1973.
In addition, he has held chemist and management positions during a 35 year career at the Argonne National Laboratory.
Prior to that, Dr. Steindler was a research assistant with the U.S.
Navy Inorganic Project.
Currently, he is a member of the NRC's Advisory Committee on Reactor Safeguards.
WENNER, Seymour.
Education:
A.B., Harvard College (1933); LL.B.,
Harvard Law School (1937).
Experience: Judge Wenner has been a part-time member of the ASLBP since 1978.
In addition, he is currently a mediator for the District of Columbia Superior Court and a member of the Arbitration Panel of the New York Stock Exchange.
Prior to his appointment to the Panel, Judge Wenner's 44 years of Government service included 25 years as a hearing
- examiner, Administrative Law Judge, or Chief Administrative Hearing Officer for the Interstate Commerce Commission, Federal Power Commission, Federal Reserve Board, and the Bonneville Power Administrations.
WOLFE, Sheldon J.
Education:
A.B.,
Harvard University (1942);
LL.B., Georgetown University (1956). Experience: Judge Wolfe has been a full-time member of the ASLBP since 1976.
Prior to his appointment to the Panel, Judge Wolfe was a partner in Coal Mines Equipment Sales Company of Terre Haute, Indiana, an attorney with the Civil Aeronautics Board, and, for 20 years, a Trial Attorney with the Civil Division of the U.S.
Department of Justice.
He is a member of the District of Columbia Bar and the Federal Bar Association.
l B-13
APPENDIX C MAJOR FEDERAL STATUTES AND REGULATIONS RELEVANT TO ASLBP ADJUDICATIONS i
I.
FEDERAL STATUTES 1.
'The Atomic Energy Act of 1954, as amended, 42 U.S.C.
$$ 2011 at sea,, Pub.L.83-703, 68 STAT. 919.
2.
The Energy Reorganization Act of 1974, as amended, 42 U.S.C.
66 201 - 401, Pub.L.93-438, 88 STAT. 1233.
3.
Uranium Mill Tailings Radiation Control Act of 1978, as amended, 42 U.S.C.
66 7901 gt sea., Pub.L.95-604, 92 STAT. 3021.
4.
Administrative Procedure Act, 5 U.S.C.
SS 551-559.
5.
Transportation Safety Act of 1974, 49 U.S.C.
66 1801 at seg,, Pub.L.93-633, 88 STAT. 2156.
6.
National Environmental Policy Act of 1969, as amended, Pub.L.91-190, 83 STAT. 852.
7.
Clean Air Act Amendments of 1977, Pub.L. 95-95, 91 STAT. 685.
8.
Nuclear Waste Policy Act of 1982, 42 U.S.C.
66 10101 gt sea., Pub.L.97-425, 96 STAT. 2201.
II.
REGULATIONS Title 10, Code of Federal Regulations:
Part 0, Conduct of Employees Part 2,
Rules of Practice for Domestic Licensing Proceedings Part 19,
- Notices, Instructions, and Reports to Workers, Inspections Part 20, Standards for Protection Against Radiation Part 21, Reporting of Defects and Noncompliance
L.-
Part 30, Rules of General applicability to Domestic Licensing of. Byproduct Material Part. 31, General Domestic Licenses for Byproduct Material Part.32, Specific Domestic Licenses to Manufacture or:
Transfer Certain Items Containing Byproduct Material Part 33, Specific Domestic Licenses of Broad Scope for Byproduct Material Part 34, Licenses for Radiography and Radiation Safety Requirements for Radiographic Operations Part 35, Medical Use of Byproduct Material Part 39, Licenses and Radiation Safety Requirements for Well Logging Part 40, Domestic Licensing of Source Material Part 50, Domestic Licensing -of Production and Utilization Facilities
'Part 51, Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions Part 53, Criteria and Procedures for Determining Adequacy of Available Spent Nuclear Fuel' Storage Capacity Part 55, Operators' Licenses Part 60, Disposal of High-Level Radioactive Wastes s Geologic Repositories Part 61, Licensing Requirements for Land Disposal of Radioactive Waste Part
.70, Domestic Licensing of Special Nuclear Material Part 71, Packaging and Transportation of Radioactive Material Part 72, Licensing Requirements for the Storage of C-2 i
)
Spent' Fuel-in an Independent Spent Fuel Storage Installation (ISFSI)
Part 73, Physical. Protection of Plants and Materials Part 74, Material Control and Accounting of S'pecial Nuclear Materials Part 100,' Reactor Site Criteria Part~ 140, Financial Protection. Requirements and Indemnity Agreements III.
OTHER SIGNIFICANT GUIDANCE DOCUMENTS NUREG-0396 (December 1978), Planning Basis for the Development of-State and Local Government Radiological Emergency Response Plans in Support f
l of Light-Water Nuclear Power Plants.
NUREG-0654/ FEMA-REP-1 (February.1980), Criteria for Preparation and Evaluation of Radiological..
Emergency Response Plans and Preparedness.in Support of Nuclear Power Plants.
NUREG-0696 (February 1981),. Functional Criteria for Emergency Response Facilities:
Final Report.
NUREG-0981,Rev.1 (February 1985), NRC/ FEMA Operational Response Procedures for Response to a Commercial Nuclear Reactor' Accident.
NUREG-1055 (May 1984),
Improving Quality and the Assurance of Quality in
.the Design and Construction of Commercial Nuclear Power Plants.
NUREG-1150, Vols. 1-3 (Febtaary 1987), Reactor Risk Reference Document:
braft for Comment.
i l
i C-3
NRC FORM 335 U.S. NUCLE AR REGULATORY COMRilSSION
- 1. REFORT NUYBE R NRC i f 02 dum humtmas ay um.ne' BIBLIOGRAPHIC DATA SHEET (See mstrucroons or the reverse)
NUREG-1363, Vol. 1
- 2. m u AND Supt M LL j
Atomic Safety and Licensing Board Panel Annual P,eport for Fiscal Year 1988 3
DATE REPORT PUBLISHE D uows,,
n an March 1989
- 4. F IN OR GR ANT NUMBE R h, AUTHOR (S)
- 6. TvPE OF REPORT Annual i
i
- 1. Pk RIOD COV E R E D sincivere couest Fiscal Year 1988
- 8. PE R F 0RMING ORG ANIZ AT SON - N AME AND ADDR ESS (!! NRC. prosode Orvoston. orr ce or Reguon. v.s Nuswer neouterors commowan. and moonne oudress si contractor, provorn a
name and moohne addomi Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission d
Washington, DC 20555
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V SPONSORING ORGANIZATION - N AME AND ADDRESS tir NRC, rype "Some n eteve", or onto stor provodr NRC Dovhoorr. Orroce or Regen. v,S. Nuclear Reputartny Commowon.
c and meiltng eddresLI Same as 8, above.
- 10. SUPPLEME NT ARY NOTES
- 11. ABST R ACT (200 words or wun This is the fiscal year 1988 annual report of the Atomic Safety and Licensing Board Panel.
In response to further reductions in its authorized staffing level and with an eye toward the proposed full-text, electronic docket of the expected High-Level Waste Repository proceeding, the Panel stepped up efforts during FY 1988 to extend the scope, depth and availability of its Computer Assistance Project (CAP) through INQUIRE.
INQUIRE, and the Panel's ability to use the system to expeditiously manage and search the massive records that characterize our most complex cases, has generated great interest among legal practitioners and adjudicatory bodies throughout the United States and Canada.
- 12. KE Y WORD 5'DE5CH P10R$ Itist words orparenes ther wai essist researchers m iorotone rnc renort. J 13 AV A'L Abit 'I Y h l AI L ML N 1 Un1imited
. annual report
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