ML20062K572

Opposes Congressional Investigation Re Conduct of Ongoing Adjudicatory Proceeding.Investigation Could Irreparably Impair Legal Validity of Subsequent Agency Decisions.Memo Detailing Concerns Encl

ML20062K572
Person / Time
Site:	Indian Point
Issue date:	08/13/1982
From:	Duffy J POWER AUTHORITY OF THE STATE OF NEW YORK (NEW YORK
To:	Ottinger R HOUSE OF REP., ENERGY & COMMERCE
References
ISSUANCES-SP, NUDOCS 8208170284
Download: ML20062K572 (7)

Text

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The Honorable Richard L. Ottinger g -f?86 S['

Chairman, Subcommittee on Energy Conservation and Power Committee on Energy and Commerce United States House of Representatives 2241 Rayburn House Office Building _

Uashington, D.C. 20515-- - -

Dear Congressman Ottinger:

We have been ad. vised by your~ staff that the~ Power- Authority of the State of New York, the licensee of the Indian Point Unit 3 Nuclear Power Plant, is expected to provide testimony during the hearing scheduled by the Subcommittee on Energy Conservation and Power on August 16, 1982', relating .to the pending Indian Point adjudicatory proceeding. We have also reviewed correspondence between. the Chairman of. the Nuclear: Regulatory Commission and you~

in which Chairman Palladino explains why it would be inappropri-ate for either . members of the- Commission or members. of the Atomic -

Safety and Licensing Board to appear at this time.

The Authority, as a party to the special proceeding, is itself gravely concerned that the subcommittee's hearing could threaten the integrity of the special proceeding, the rights of the licensees, and the ability of the Commission to expeditiously complete its investigation of Indian Point.

A congressional investigation of~a' regulatory agency's conduct of an ongoing adjudicatory proceeding could irreparably impair the legal validity of subsequent agency decisions because

. the fact or at least the. appearance of impartiality could be destroyed. Our review ~of applicable judicial precedent and the the questions you. have addressed to Chairman Palladino indicates that the proposed Subcommittee hearing during the pending special proceeding is constitutionally circumscribed by the doctrines of separation of powers and due process of law. We are enclosing a 8208170284 820813

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The Honorable Richard L. Ottingar August 13, 1982 Page 2 memorandum which details our concerns and the legal constraints they engender. ,'

Because of the Commission's ongoing proceeding, the Authority is obliged respectfully to advise you of its belief that congressional investigation at this time is inappropriate and of the Authority's consequent inability to provide testimony at the hearing. The Authority, however, is fully-willing to cooperate with the Subcommittee to respond to its legitimate

_ inquiries upon satisfactory resolution of the serious concerns and legal constraints noted above.

Sincerely, John F. Duffy Assistant General Counsel JFD:llb Enclosure cc: By Hand: Honorable _ Carlos J. Moorhead _ . _

United States Nuclear Regulatory Commission

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MEMORAUDUM Augu's t '12, 1912ETED USNRC To: Power Authority of the St 'e of Ne York Charles Morgan, Jr S_ 3 From:

Re: Congressional Investigation of Indian PointF Pippge9di4%C' 00CKET:.4G & SEnVICc-

____________________________________________________iU_6t______

The Power Authority of the State of New York (Power Authority), licensee of the Indian Point Unit 3 nuclear power plant, should decline to appear on August 16, 1982, before the House of Representatives Subcommittee on Energy Conservation and Power of the Committee on Energy and Commerce. The hearing to be held by this subcommittee to investigate the Nuclear Regulatory Commission's (Commission's) special proceeding on Indian Point may create undue pressure.or prejudice, or.the appearance thereof, which may deprive the participants in the Commission's adjudicatory proceeding of their right to a fair trial.

Because of the nature of the Commission's ongoing l

proceeding, congressional intervention is inappropriate at this juncture. " Congress intended.that.the Commission.b6 independent I ~

l not only from pressure brought to bear ~by the President, but from all external pressures." Westinghouse Electric Corp. v. NRC, 598 F.2d 759, 775 (3d Cir. 1979) (emphasis added). "The fundamental justification for making' agencies independent is that since they exercise adjudicatory powers requiring impartial expertise, political interference is undesirable." Consumer Energy Council of America v. FERC, 673 F.2d 425, 472 (D.C.Cir. 1982). An independent agency "is to be nonpartisan; and it must, from the 4 e

.q very nature of its duties, act with entire impartiality."

Humphrey's Executor v. United States, 295 U.S. 602, 624 (1935).

The questioning of the members of the Commission or its Atomic Safety and Licensing Board (Board) by a congressional committee " endangers, and may undermine," the impartiality of the Commission and its administrative law judges,1 see American Public Gas Association V. -PPC , 567 F.2d 1016, 1069 (D.C.Cir.-

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1977), cert, denied, 435 U.S. 907 (1978), who must be permitted I

to conduct their administrative hearings free from external pressure. See Pillsbury Co.-V. FTC, 354 F.2d 952, 964 (5th Cir.

1966); see also SEC v. Wheeling-Pittsburgh Steel Corp., 640 F.2d I 118, 130 (3d Cir. 1981) (parties in an administrative proceeding I "are entitled to a decision by the SEC itself, free.from third-

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party political pressure") (emphasis in original). I'~Wi th regard to judicial decisionmaking, whether by court or agency, the

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appearance of bias or prissure may be no less objectionable than the reality." D.C. Federation of-Civic Associations v. Volpe,

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459 F.2d'12'31, 1246-47'(D.C.Cir.:1971), cert. denied, 405:U.S.

1030 (1972) (emphasis added). _ ..

Yet, in' public statements the -subcommittee demands "a f ull explanation and justification regarding Section II D of the Commission's ruling on the Licensing Board's conduct of the

1. The Commission has already noted that its appearance before the subcommittee to discuss an " adjudicatory proceeding before it" raises serious concerns. Letter from Hunzio J.

Palladino to the Honorable Richard Ottinger at 1 (Aug. 5, 1982)

("There are, of course, legal limitations on the form and content of Commission discussions concerning any adjudicatory proceeding before it.").

e-3' proceeding"1 and terms the Commission's order an " alarming decision."2 The subcommittee has announced its list of 21 specific inquiries to the Commission. Illustrative of these improper inquiries are:

(3) The July 22 Order further states the Commission's concern that the Board needs to

" assure that the proceeding remains. clearly focused on the isues of the Order." What in the Board proceedings -is perceived by the Commission to be unfocused or beyond the scope of inquiry? What i-s the basis for that ,

judgment? ]

(9) What affect (sic] did the pre-filed testimony of the intervenors have on the Commission's decision about the Order and guidance?

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-(10) -How does-the Commission characterize the July 22 Order? Does the Commission assert that the July 22 Order reiterates instructicns previously established, refines the original guidance, or changes the instructions?

(12) Did the Commission ask the OGC to provide any guidance or evaluation or to render a systematic review of the Board's proceedings? If not, why not?

(21) The Subcommittee also requests that the NRC provide all relevant documents on this Decision and Order, including transcripts of meetings, staff notes, internal memoranda,

. 1. Letter from Richard L. Ottinger to the Honorable Nunzio Palladino at 1 (Aug. 3, 1982).

2. News Release, Subcomm. on Energy Conservation and Power of the House Comm. on Energy and Commerce (July 28, 1982) (the subcommittee "want[s] a full explanation and justification from the [C]cmmission for this alarming decision").

s-draft orders, guidance comments, and other communications involving commissioners or staff, including the office of General Counsel.

Letter from Richard L. Ottinger to the Honorable Nunzio Palladino at 2-4 (Aug. 6, 1982) (emphasis added).

The actions of the subcommittee raise serious questions, for

" Congress may (not] interfere with an independent agency's decisions without regard to separation of powers." Consume r Energy Council of America v. FERC , 67 3 F. 2d at 47 2. The power to conduct investigations is not unlimited, see Watkins v. United states, 354 U.S. 178, 187 (1957):

when (a congressional) investigation focuses directly and substantially upon the mental decisional processes of a Commission in a case which is pending before it, Congress is no longer _in_tervening in the agency's legis-lative function, but rather, in its judicial function. At this latter point, we become concerned with the right of private litigants to a fair trial'and, equally'important, with their right to the appearance of impartial-ity, which cannot be maintained unless those who exercise the judicial function are free from powerful external influences.

Pillsbury Co. v. FTC, 354 F. 2d at 964 - (emphasis ~ in original -and -

added)';Esee also Citizens to Preserve Overton Park, Inc. v. i Volpe, 401 U.S. 402, 420 (1971) (" inquiry into the mental processes of administrative decisionmaking is usually to be avoided"). As Commission Chairman Nunzio J. Palladino stated, close Congressional probing of the deliberative process of an independent regulatory agency with regard to an adjudication pending before that agency presents extremely serious legal problems, capable of rendering the outcome of that proceeding void as a matter of law.

- Letter from Nunzio J. Palladino to the Honorable Richard L.

Ottinger at 1 (Aug. 11, 1982).

The conduct of this hearing in which the Power Authority's rights are at issue is a denial of due process of law. Pillsbury Co. v. FTC, 354 F.2d at 964. " Congress . . . has responsibility to protect the (Commission's] decisional integrity." American Public Gas Association v. FPC, 567 F.2d at 1069. There exist ,

" legal constraints on the Commission which are designed to insulate and protect the integrity of the regulatory process."

Letter from Nunzio J. Palladino to the Honorable Richard Ottinger at 1 (Aug. 5, 1982). .

In. view of the foregoing, the Power Authority should decline to participate in this hearing. l C:1Jr. :llb

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