ML20002B818
| ML20002B818 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 07/26/1979 |
| From: | Bickwit L NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Gilinsky V, Hendrie J, Kennedy R NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8101060905 | |
| Download: ML20002B818 (10) | |
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4 MEMORANDUM FOR:
Chairman Hendrie I
Commissioner Gilinsky Commissioner Kennedy Comei.ssioner Bradford Commii'ioner Ahearne FP.OM:
Leonard Bickwit, Jr.
General CourMel
SUBJECT:
TMI-l PROCEEDING I.
INTRODUCTION As a preface to discussions of some possible courses of action it may be helpful to attempt to summari::e some of the concepts discussed at yesterday's meeting.
They are relevant not only to the decision arrived at yesterday but to other matters still under consideration.
The proposal to have a " hearing on the restart of TMI-1," has a number of possible meanings two of which formed the basis for yesterday's discussion.
First, there is the statutorily required hearing which must be held, if requested, on all elements of an order to suspend or revoke a l
license.
This hearing is one to determine whether the order is an appropriate one or whether more or less should be required in the way of actions prescribed.
As discussed, this hearing must be a full adjudicatory hearing under the I
requirements of the Administrative Procedure Act.
While it l
must be held even on those aspects of the order which concern I
- restart, i.e.,
actions which are required to be taken as a l
condition to restart, the Atomic Energy Act does not require l
the hearing to be held prior to restart.
A second possible meaning of "a hearing on restart" is that, under the terms of the order itself, a hearing must be held as an aid to a decision required by the order.
Unlike the CONTACT:
Stephen S. Ostrach, OGC X-43224 1
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hearing described above, this hearing is not a hearing to determine if the order makes sense or should be adjusted.
Rather it is a hearing which must be held under the. dictates of the order before an action specified in the order may be t aken.
Put another way, it is a hearing not to question the order but rather to satisfy the requirements of the order.
In the case of the other B&W plants, certain actions were required of the licensee prior to restart, such actions to be performed to the satisfaction of the staff.
It was understood that the staff /would not implement a decision based on its satisfaction until after it conferred with the Commission.
Had the Commission been required to hold a he'aring and to make a determination in the matter with the assistance of that hearing, the hearing would have fallen into this second category of hearings.
No statutory requirements are applicable to any such hearing.
Since the plants could be restarted in the absence of any hearing whatsoever, it would appear to follow that if a hearing of this nature were prescribed, no requirements, save those of fairness, would be applicable.
As was discussed yesterday, it would be possible for two hearings, one of the first category and one of the second, to be held simultaneously.
Under such an approach, the full adjudicatory hearing would be conducted as statutorily required but, as permitted by statute, would not be required to run its course prior to restart.
A more abbreviated legislative-type hearing, which would not be subject to statutory constraints, could be conducted in satisfaction of a Commission requirement imposed by order to condition restart on the hcilding bf'a ~ prior hearin~g.
i The Commission has rejected this approach for several reasons, one of which is the confusion inherent in two ongoing proceedings dealing with many similar issuer.
It has been decided instead to use the statutorily required hearing, which will address the appropriateness of the order, as a vehicle for satisfying the requiremer.ts of the order for a hearing prior to restart.
II.
REVIEW PROCESS Not only is an adjudicatory hearing required under the Atomic Energy and Administrative Procedure Acts; a full adjudicatory proceeding, which includes an opportunity for i
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fu'll Commission review of an initial or recommended decision by a board, is also prescribed.
Again, however, no review process of any sort ~is required prior to restart.
Nor does any particular review process appear to be contemplated by the Commission's July 2 order, which mandates only "a hearing" and a "further order of the Commission itself" prior to restart.
It thus would be possible to have two different review processes, one meeting the statutory requirement for review of the appropriateness of the order and a less extensive one, not subject to statutory requirements, to consider whether the plant ought to be permitted to restart while the full-scale review is in progress.
The element of confusion arising out of the "two hearings" approach is not nearly so worrisone in the case of this "two reviews" process.
It could be provided, as the simplest way to proceed, that immediate effectiveness with respect to the short-term portions of the order could be lifted by further order of the Commission after a specified short review process and subject to specified conditions.
Some alternative courses of action follow.
A.
Presumption in Favor of Permitting Restart The Commission could provide in the order that it will view a Licensing Board decision approving restart upon certain conditions and staff's certification that those conditions have been met as creating a presumption that the concerns that led to making the order immediately effective no longer existed. Accordingly, the Commission would provide that in such circumstances it would lift the immediate effectiveness j
of the order and permit resumption of operation during its review of the Board's decision unless a party could show that the immediate effectiveness concerns still existed.
In effect, this would require a party to satisfy a substantial l
burden similar to that he would need to'obtain a stay.
B.
Accepting Motions Requesting Restart The Commission could provide that af ter receipt of a Licensing Board decision authorizing restart on conditions and staff's certification that those conditions had been met, the Commission would entertain motions requesting lifting of the immediate effectiveness of the original order and resumption of~ operation during Commission review of the Licensing Board decision.
Such motions would be due within a short time, perhaps 10 days, after the staff's certification.
Opposition would be due 7 days later as is normally required in the case of h
The Commission
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notions, and the Commission could promptly issue a decision.
Its decision would be based solely on its judgment whether in the circumstances then existing it continued to feel that the public health, safety and interest required the plant not to operate despite the views of the Board and staff.
C.
Sua Sponte Consideration of Restart Alternatively the order could provide that the Commission would on its own motion address the immediate effectiveness question as soon as the decision and the certification are in hand.
The standards for decision would be the same as
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those discussed in alternative B.
D.
Discussion We believe that any of these three courses of action would be legally defensible.
In fact, if an adjudicatory hearing has been held on all of the subjects of the Commission's concern, the Board has determined all of the actions it believes are necessary to ensure safe operation, and staff has certified those actions have been completed, the Commission might incur some litigation risk in not permitting resumption of operation.
It must not be forgotten that the licensee received a valid license to operate TMI-l and that under the APA it requires an extraordinary finding on the Commission's part to forbid operation before a suspension or revocation order has been subjected to a hearing.
After the Licensing Board's decision and staff's determination, it may be quite difficult to justify continuation of that finding.
We.. expect full-Commission review of the Board's decision l
would take a minimum of four months.
Of course the staff certification will come after the Board's decision, and Commission consideration of the lifting of immediate effectiveness would also require some weeks.
However, unless the Board's j
decision requires actions substantially different from those proposed by staff, which we expect the licensee will be implementing during the Board hearing, we expect that a Commission decision on lifting immediate effectiveness could precede full review of the Licensing Board's decision by several months.
It should be added that if an amendment involving significant hazards considerations is required as a condition to operation, such savings would probably be lost.
That has not been the case, however, with regard to the other B&W plants.
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The. Commission -
E.
Recommendation and Draft Language We recommend Option B which for all pract,ical purposes is the same as option C.
To accomplish this the order should include language such as:
3 If the Licensing Board should issue a decision authorizing resumption of operation upon completion of certain specific actions by the licensee, and sub-4 sequently if staff certifies that those actions have been completed to its' satisfaction, the Commission will entertain motions within 10 days of such certification pursuant to the provisions of 10 CFR 2.730 on whether this order shall remain immediately effective.
The Commission shall issue an order lifting the immediate effectiveness of this order, or provisions of this i
order, if it determines that the public health, safety i
i or interest no longer require that this order or such provisions remain immediately effective.
The Commission's decision on that question will not affect its normal appellate review of the merits of the Board's decision.
III. DISCOVERY The Administrative Procedure Act does not establish any pro-cedures for the conduct of discovery in administrative proceedings.
The Commission's freedom to specify discovery-procedures for the TMI-1 hearing is limited only by due process and by the Commission's self-imposed regulations.
In practice this means that the Commission can select virtually any discovery procedure that it believes would be appropriate.
We believe there are only two realistic alternatives: (1) normal adversary discovery tightly mon-itored by the Board; (2) requiring a party to justify his conduct of discovery in light of the large volume of informa-tion publicly available in this case.
We recommend the second option, although as discussed below, we do not believe it will significantly expedite the hearing.
A.
Tightly Monitored Adversary Discovery If this course is chosen, the TMI-1 order should include language such.as:
The provisions for pre-hearing discovery set forth in sections 2."40-2.742 of the Commission's regu-lations SP,a?l apply to this proceeding.
- However, as provided by sections 2.740(c) and 2.740(d),
the licensing board may, and when appropriate should, in the interests of~ justice, limit the extent or control the sequence of discovery to prevent undue delay or imposition of an undue burden on any party.
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The' Commission..
B.
Limited Discovery If this option is chosen, the TMI-l order should include language such as:
The Commission has determined that the extra-ordinary amount of information that is and will be made publicly available as a result of the various investigations of the Three Mile Island accident that are now underway makes it unneces-sary to apply to this proceeding the discovery procedures in sections 2.740-2.742 of the Com-mission's regulations.
This information, which is being gathered by the licensee, by NRC staff, by the Commission's Special Inquiry, by the Pres-ident's Commission and by several Congressional committees will far exceed in depth and breadth the information publicly available in any normal Commission proceeding, and exceeds that which would likely be uncovered through even the most extensive use of discovery procedures.
Accord-ingly, in several locations including the Commis-sion's Public Document Room and the TMI Local Public Document Room in Harrisburg, the Commission will maintain and continously update compilations of all publicly available information on the Three Mile Island accident and related catters, and it will also permit informal access to NRC staff considera-tions of the issues involved in this hearing.
Any party wishing to employ the discovery procedures in IL CFR 2.740-2.742 will have to satisfy the
- Licensing ~ Board that the infommation sought is clearly relevant to the proceeding, is not avail-ible in the data compilation and that permitting discovery will not ::esult in undue delay or impose j
an undue burden on any party.
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C.
Discussion l
l Under Option A, the parties will eqploy the normal adversary l
discovery procedures.
This may delay the restart hearing somewhat.
However, other factors, particularly preparation of the SER and ACRS review of that document most likely will control the time the hearing can begin regardless of discovery proceedings.
In addition to possible delay, adversary discovery has other disaGvantages.
Responding to discovery requests will distract parties' attention from preparing for i
the hearing.
It takes substantial time to respond to a broadly worded discovery request, and that is time that.
The Commission...
cannot be spent in preparation of testimony or cross-examination.
This factor may bear particularly heavily on intervenors who will not have the resources available to. staff and the licensee which would enable them to conduct discovery while preparing for hearing.
There have been allegations in other proceedings that lengthy interrogatories and other discovery requests have been used in efforts to deter intervention.
Furthermore, adversary discovery often leads to controversies about what is privileged against discovery and similar matters which, although they may be only tenuously related to the ultimate issue of the hearing, will require the time of the parties and the Board.
We also note that the TMI-l hearing lacks the key factor which underlies the need for discovery in normal hearings.
In the usual proceeding the only information publicly available is that which the applicant and the staff, which is normally allied with the applicant, have made available and which they likely believe supports their position.
Parties interested in opposing points of view have to be give~n a license to dig out any information that may be relevant but that has not been voluntarily been made publi,c.
The TMI-1 case is obviously much different.
There have been and will be extensive independent reviews conducted on most or all of the matters that will be in issue at the hearing..
It is not unreasonable to accept as a working presumption that much of the information necessary is already available, and so to require any person who wishes to conduct further discovery to show that what he wants is relevant, that it is not otherwise available, and that obtaining it is likely to be worth the time and effort involved.
D.
Time and Paperwork Savings Although it is difficult to quantify the amount of time that would be saved by limiting discovery, it seems likely that it will not be substantial.
As discussed above, even if no discovery is conducted in the time provided for discovery in the ELD schedule, the hearing could not be substantially
.dvanced.
However, by restricting discovery the possibility of slippage due to discovery controversies would be eliminated.
Furthermore, as discussed above, limitation of discovery might lead to a better prepared and more tightly organized hearing which should save some time.
As a final matter we note that a justification requirement would not likely result in a net addition to the parties' paper-work burden since discovery justifications would be replacing the 4
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~ lengthy discovery requests, oppositions, replies and motions for protective order which parties would otherwise be likely to prepare.
The Board may have to participate more in ruling on justifications than it normally would in its passive role in ordinary discovery, but this would offer an aggressive Board an additional opportunity to shape and control the timing of the proceeding.
IV.
CROSS-EXAMINATION:
Cross-examination, unlikefdiscovery, is a right explicitly provided for in the Administrative Procedure Act.
5 USC 556 provides that, in an adjudicatory hearing such as the TMI-1
- hearing, "A party ic entitled... to conduct such cross-examination as may be required for a full and true disclosure of the facts. "
This language is repeated in 10 CFR 2.743(a).
However, 10 CFR 2.757(c) provides that to " prevent unnecessary delays," a licensing board may take ?necessary and proper measures to prevent argumentative, repetitious, or cumulative cross-examination..."
There.are again two options available for use in the TMI-I order: (1) direct the licensing board to oversee cross-examination closely to elimate undue delay; or (2) provide that cross-examination will be permitted'only after all direct testimony has been given and upon a specific showing that particular cross-examination is necessary for " full and true disclosure of the facts."
We recommend the first option.
A.
Close Scrutiny by the Board If this option is chosen, the order should include language such as:
1 In the conduct of this hearing the Licensing Board should exercise its authority to seek to ensure that it receives all information necessary to a thorough investigation and resolution of the questions before it.
How-ever, it should also employ its authority under 10 CFR 2.757 to prevent any undue delay to the proceeding resulting from unnecessary or excessive cross-examination or from the other sources mentioned in that section.
B.
Delayed Cross-Examination If this option. is chosen the order she tid include such language as the following which is taken in part from FDA regulations (21 CFR 12.87):
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The Licensing Board shall receive evidence from all parties as - provided by 10 CFR 2.743.
Once all of the evidence presented by the parties has been received, any party may request the oppor-tunity to conduct cross-examination of any wit-Such cross-examination shall be permitted ness.
only upon a showing that the particular cross-examination proposed is necessary for a full and true disclosure of relevant facts, and that alter-nate means of disclosing those facts are not avail-able.
In considerin.g whether to grant such a request the Board should consider: (1) the extent to which full and true disclosure can be achieved without cross-examination by presentation of additional evidence; (2) the extent to which there are circum-stantial guarantees of the trustworthiness of evi-dence sought to be cross-exanined; (3) whether the evidence or testimony sought to be cross-examined is necessary for resolution of any disputed factual issue; (4) whether in the Board's judgment cross-examination would advance its understanding, appre-ciation or resolution of any issue before it; and (S) any other factor the Eoard believes relevant.
C.
Discussion Limitation of cross-examination would almost certainly shorten the hearing.
It would prevent fishing expeditions and would eliminate redundant cross-examination.
- However, it would introduce a new type of issue to be briefed and resolved by the Board.
On balance, we believe the time gained by eliminating automatic cross-examination will outweigh the time lost by hearing and ruling upon requests for cross-examination and accepting the examination permitted.
We have reservations on this point, however, in view of the fact that the procedure is untried at the NRC.
There are considerations that weigh against the limited cross-examination procedure outlined above.
First, although OGC believes on balance that that procedure is legal, it would be subject to a potentially serious legal challenge either as not complying with the APA, or as being an arbitrary, and therefore illegal, refusal to follow normal Commission practice in this area.
Furthermore, it can be argued as a matter of policy that the TMI-1 proceeding is an unuscally l
sensitive one that calls for use of extra procedural precautions rather than limitation en the use of an existing one such as cross-examination.
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V.
MATTERS REMAINING FOR CONSIDERATION 3.
Whether satisfactory compliance with requirements of the order should be a hearing issue.
2.
Whether the requirements for the long-term actions should be made immediately effective.
3.
Whether the Commission should remove from the order any implication that the Commission has determined that the actions enumerated and only such actions should be required.
Whether the actions at.. concerns should be set out with either more or less specificity than under the current draft.
4.
Whether a procedure for determining the scope of public health and safety and environmental considerations should be included in the order.
5.
Whether and to what extent financial qualifications should be treated in the hearing.
6.
Whether provision should be made for modification of the order in the event of future generic action by the Commission based on the Lessions Learned report.
7.
Whether some form of intervenor funding on some or all issues is appropriate.
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