United States Nuclear Regulatory Commission - Protecting People and the Environment

U.S. Nuclear Regulatory Commission

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

Page Last Reviewed/Updated Thursday, March 29, 2012