Ex Parte Communication
HPPOS-126 PDR-9111210297
Title: Ex Parte Communication
See the memorandum from J. P. Murray to J. G. Keppler dated
February 3, 1981. Ex parte provisions prohibit discussion -
written or oral - by one party to a proceeding with a
"judge." Judges include licensing boards, appeal boards,
administrative law judges, the Commissioners, and staffs of
all the above.
An explanation of the term "ex parte" in assisting IE
personnel in the recognition of potential ex parte contacts
was sought. Here is an attempt to briefly summarize the
situation in simplified terms.
The latin phrase "ex parte" means "from one side only." It
has application only in the context of a legal
"proceeding". What is a "proceeding?" It is the agency's
process for issuing, amending, suspending or revoking a
license or issuing a civil penalty. When is it "going on?"
It begins when a hearing has been noticed or when a request
for a hearing is made. It ends with the final decision by
the agency.
The basic idea behind the ex parte prohibition, codified in
10 CFR 2.780, is the prevention of the unfairness which
could occur if one of two (or more) parties to a proceeding
were to have secret discussions with the decisional
authority on a matter at issue in the proceeding. One
party ought not be allowed to discuss secretly with the
judge matters at issue before the judge. This could be
unfair to the party or parties left in the dark as to what
was said.
In NRC's practice, the "judges" are: the licensing boards,
the administrative law judge, the appeal board and, of
course, the Commissioners themselves when there is a case
pending before them. (This includes all members of the
staffs of these "judges".) Also, in NRC's practice the
"parties" to proceedings are: the NRC staff, the applicant
or licensee, and any intervenors.
So, the prohibition is against discussion - written or oral
- between one of the parties and a judge concerning a
matter at issue in a pending proceeding. Put another way,
all parties to a proceeding are entitled to be in on any
discussions which occur between the judge and any of the
other parties.
One final observation is as follows. Although the
subsequent revelation on the record of a prior ex parte
contact serves, at least in most cases, to largely
eliminate the pernicious effect which might otherwise
occur, such a "curative" action does not eliminate the
original illegality of the contact.
In summary, IE personnel should be sensitive to any contact
they may have with the "judges" or their staffers and,
never discuss a matter currently pending before one of the
"judges," except on the formal record.
Regulatory references: 10 CFR 2.780
Subject codes: 12.19
Applicability: All