Chapter 3

Part I

Informal Adjudications

We have been talking about informal adjudications

Most adjudications are informal Goldberg hearings are the most structured Matthews shows that they may be on paper

until the appeals Can be as simple as talking to the principle

before getting suspended

Contrast with Federal Trials

Article III judges in the federal system What are the protections for these judges? Can they be told what to do?

Are the attorneys for the parties independent of the judge?

How are ex parte contacts handled? Are Judges supposed to know the subject

matter? What goes in the record?

Formal Adjudications

These are modeled on civil trials They are defined in the APA

Requirements for Formal Adjudications

Separate prosecuting and adjudication functions, and no ex parte contacts with the decisionmaker - 556(d)

An agency must allow such cross-examination at the hearings as "may be required for a full and true disclosure of the facts" - 556(d)

The hearing must be conducted by an ALJ who is hired and assigned to cases according to set standards

Attorney's Fees

If the private party wins and the agency position was not substantially justified, the party can recover attorney's fees under the Equal Access to Justice Act

Unusual, but it happens Important to remember

Cost of Formal Adjudications

Why do these requirements increase the time and cost of adjudications? Who can be a party? How is this different from a trial?

They are only used when they are specifically required by Congress

What language triggers a formal adjudication?

554(a) - "adjudication required by statute to be determined on the record after opportunity for an agency hearing"

Nuclear Power Plant Regulation

Originally regulated by the Atomic Energy Commission

Charged with both regulation and promotion of nuclear power

Regulation was split off to the Nuclear Regulatory Commission because of conflicts of interest

Important administrative law battle ground

Why are Nuclear Power Plants Controversial?

What do they use as fuel? What else is this used for? What if it gets into the environment? What happened at Chernobyl? What would an accident like this mean near

a US city? What does NIMBY mean?

Who Pays if there is an Accident?

Price-Anderson Act Nuclear Energy Institute Mothers for Peace

Who really pays if there is a huge accident?

What are the advantages of nuclear power?

Why has France pushed for 50% nuclear power?

What about the environment if there is no accident?

What do we do to prevent accidents like Chernobyl

What do you think? Who should decide?

What type of Agency Action is Nuclear Plant Licensing?

What factors do we look for?

City of West Chicago v. NRC

What did Kerr-McGee process in West Chicago?

What had piled up? Why did it pile up?

Disposal of Nuclear Waste

Where do we dispose of nuclear power plant waste in the US?

What has stopped the development of a central depository at Yucca Mountain?

What is the impact on the nuclear power industry?

Is this a smart strategy for stopping nuclear power?

What was the Hearing About?

KM wants to tear down some buildings and receive and store more stuff on the plant site

What happens if they cannot do this? Is this the right long term answer? Why do they want to do this?

What act Provided for a Hearing?

The controlling act, The Atomic Energy Act, requires a hearing

Why do KM and the NRC want an informal hearing?

Can the question be resolved by looking at the NRC regs which only require an informal hearing?

What else controls?

What does the AEA Say?

"the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding."

Do the Magic Words have to be in the Statute?

What do you look for? Congress must clearly indicate its intent to

trigger the formal, on-the-record hearing provisions of the APA. ... We find no such clear intention in the legislative history of the AEA, and therefore conclude that formal hearings are not statutorily required for amendments to materials licenses.

What about Previous Hearings on Reactors?

Court says it is not sure they were required, but even if they were, that is not precedent here.

What does the City Claim are its Liberty and Property interests?

Does the court buy this? Why doesn't it matter? What due process did the city get?

How was Mathews v. Eldridge used in this Case?

What were the costs? What were the benefits? Would an oral hearing improve the accuracy of

the process? What do the city politicians really want, beyond

endless delay?

Another Avenue to Formal AdjudicationsLane v. USDA, 120 F.3d 106 (8th Cir. 1997)

Statute required hearings but did not say "on the record" or otherwise refer to the APA.

The court held the hearings were covered by the APA, since the statute called for formal hearings and seemed to require that decisions be made on an exclusive record.

Exclusive record – only the materials from the hearing.