ML19240A176
| ML19240A176 | |
| Person / Time | |
|---|---|
| Issue date: | 03/30/1981 |
| From: | Bickwit L NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML19240A177 | List: |
| References | |
| REF-10CFR9.7, TASK-PICM, TASK-SE SECY-81-202, NUDOCS 8104030037 | |
| Download: ML19240A176 (11) | |
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March 30,1981
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The Comtuission r
From:
Leonard Bickwit, Jr.,
Ceneral Councel Suhjact:
Draft Policy Statement cu the Efficient Conduct of Licensing Proceedings D_isc us sion :
OGC has prepared the attached draft policy statement which ie intended to ccmbine elements of the draft statement submitted to the Commission by the Licensing Board Chairman and the alternative draft letter prepared by the Executive Legal Director.
The ASLaP, ASLBP, and OELD Fave provided us with crc ments on the draf t, 'Gich we have incorpo 3ted.
OGC, the AFLLe, cnd OELD tecor end th:1 the Ocminiscion issue the atta;nd.d s r.a r. e m e n t..
The TSLAP har no ab e,"rion to it i s.; u a n c e.
This revised draft differs n the earlier ve rsions in it doas noc addracs ene majer respect.
s ch ed ulirg.
There is no referance to how quickly the hearir.g should commence after issuance of the ttaff SSEP or how quickly Board decisionr should be issued after the record is closed.
Those matters werc addressed in the 5tatement of Considerations accompanying the proposed procedural rules thr.t have been pubb shed in the Federal Register for comment.
We suggest that Contact.
Trip Rothscnild, CC X-41465 SECY NOTE: This paper, wnich is identical to advance copies which were distributed to Commission offices on March 30, 1981, may be the <;oject of discussicq among other related items at the apen Commission meeting on Revised Licensing Procedures on Tuesday, March 21, 1981.
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2 decisions on those matters should await comments on the rules but that the Com-mission's acti:n on the 6ttached statement should not.
Ore issue that the Commission may wish to add to the draft policy state-ment is a statement c.7 when the Boardr, may raise iss'.les cua sponte.
OGC underst. ands that this issue wL 1 be discitssed at %ca'ay's meeting.
'"he CTmission may also want to discuss or mark up the attachment at that time.
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Leonard Bickwit, Jr.
General Counse?
Attacamant; Draft Policy Stdter.1ent DISTRIBUTM N Cerrmissioners Commission Staff Off!cer F.xec Dir for Operations ACRS ASLBP ASLAP Secrecariat
U.S NUCLEAR REGULATORY COMMISSION COMMISSION STATEMENT OF PFLICY ON EFFICIENT CONDCT OF LTCENSING PROLEEDINGS I.
BACKGROUND
'everal tir~ H re'nt years the Coruission has stated that its reactor licenr ~ 7 p,0ceedings should be conducted in a ti~.ely fashion.
In The State-ment af Considerations which accompar.ied :tajor revisions to its bles of Practice,10 CFR Part 2, that were adopted in 19/2 the Comission said (37 Fed. Reg.15127, July 28,1972):
"The Commission is concerned not only with its obligation to the segment of the priblic participating in licensing proceed-ings but also with a resuonsibility to the general public --
a responsibility to artive at sound decisions, whether favorable or unfavorable to any particul.r party, in a timely fashion.
The Commission exsressly recognizes the posit've necessity for expediting the decisionmaking process and avoid-ing undue delays.
It expects that its responsibilitias under 1he Atomic Energy Act of 1954, as anended, the Naticnai Envirenrr. ental Policy Act of 1969, and oth-- apolicable stdt' t es, (l' be carriac out i~ a manmr consistent with this policy in the aterall Niit interest."
'fe Statement of Gercra? Policy and Precedure (10 CFR Part 2, Appendix A) or the conduct of i aarings for the licensing of nuclear power plants which the Concission issued in 1972 states:
"The Statement [of General Policy ad Procedure] reflects the Com ission's intent that such proceedings be conducted expeditiously and its concern that its procedures maintcin sufficient flexibility to accommcc ? that objective.
This position is founded upon tt:
- a Jgnition that fair-ness to all the parties in such caw and the cbligation of administrative agencies to conduct their functions with efficiency and economy, recuire that Comission adjudica-tions be conducted without ennecessary delay."
More recently, thc-Con: mission has noted (Miscellaneous Amendments to its Rules of Practice, 43 F.R.17795 and 17801, April 27,1978) that it is " committed to &!veloping a hearing process which will produce decisions in a timely fashion"
2 and rcferred to its " responsibility to the general public to arrive at sound licensing decisions in a timely fashion."
Conducting licensing proceedings in a timely fashion is even more imonrtant now.
In the past, the scheduling and processing of licensing reviews has typically provided sufficient time so that the he. rings would be corq%ted an" the license issued by the time the nuclear plant is completed and ready to operate.
For the first time, however, these hearings on a number o',oue-operating license applications may not be completed prior to the rim, that construction is completed.
This situation is an ivirect c.cequence of the Tt ree Mile Island (TMI) accident, which required a reexam mion of the entire regulatory structure.
After TMI, for a period of over a year c 'd a hal f, ihe Commission's attention and resources were focused on plants rhich were already licensed to operite and to the preparation of an action phn <,nich specified a discrete set of TMI-related requirements for oV.=
n ng reactc,rs.
/,lthough staff review of pending licerse application: Ws delayed during this period, utilities wiich had received construct.ior. ' rrnits continued to build the authorized p'. ants.
The staff is now exped* ting its review of the applications, and an unprecedented number of board croceedings are schedu'ed for hearing i : the next i4 months.
At lea:>t hali of these p, oceedings concern applications for construction permits and ope *ating licenses pursuant to the Atomic ;.nergy Act, as amer ied.
These rcumst ar.ces mil severely strain the r
existing resources of the Conmission and have the potential to deiay operation of qualified power plants.
The potential cost of such delays to consumers as clearly of great consequence.
3 The Commission therefore is issuing this policy state ent on the need for the efficient conduct of all phases of the hearing process as part of its ongoing effcrt to expedite its licensing proceedings.
Individual adjudica-tory boards are encouraged to expedite all phases of the hearing process by Ucing those management methods wh n 'l presently exist in Pc-t 2 of the Comis-sion's Rules and Regulations.
Virtually all of the procedural devices discussed in this Statement are currently being employed by sitting boards to varying d eg rees.
The Cornmission's reemphasis of the use of such tools in intended to reduce the time for completing licensing proceedings.
The guidelines set forth below are not to be considered inclusive, but rather are to be considered illustrative of the actions that can be taken bs indi vidual Boards.
The Con-mission wishes to emphasize though that in expediting the hearings the Board should ensure that the hearings are fair, and produce a record whicF leads to high quality decisions ti.at adeouately protect the environment and the public health and safety.
II.
?AL GUIDANCE 3
The Commissio i's Rules of Practice provide the Board with substantial authority to regulate hearing procedures.
In the final analysis, the actions, consistent with applicable rules, which may be taken to conduct an efficient hearing are limited primarily by the good sense, judgment, and managerial skills of a presiding board which is dedicated to seeing that the process moves along at an expeditious pace consistent with the demands of fairness.
The boards are reminded that the failure of a party to cocply with any obligation properly imposed in accordance with applicable law and Commission regulations, without a showing of good cause, ray result in imposition of
4 appropriate sanctions.
In cxtreme cases, such sanctions may include denial of the right to cross-examine or present evidence, dismissal of the offending party, or dismissal of one or more of its contentions.
III.
SPECIFIC GUIbANCE A.
Time We note at the outset that tL fundamental ingredient in managing licensing proceedings is setting sopropriate time limits for recuired actions.
The Boards should wec1fy time frames fcr all actions where they deem such delineations of time w'.~t expedite proceedings.
Concomitantly, the Boards are advised to satisfy themselvet that the 10 CFR 2.711 " good cause" standard for adjusting times fixed by the Boarc or prescribed by Part 2 truly exists.
Pequests for extension of time shoul2 penerally be in writing and should be received by the Bocrd at least three workirg dcas before the time snecified exp:res.
B.
Consolidated Intervenors In accordanco with 10 ' ' 2.715a, intervenors should be consolidcted and a lead intervenor designated who has "substantially the same interest that may be affecteo by the proceedin;s and whc rcise[s] substantially the same questions Obviously, no consolidaSon should be ordered that would nrejudice the rights of any intervenor.
However, consonant with that to dition, single, lead interven. s should be designated tu present evidence to conduct cross-examination, to submit briefs, and to propose findings of fact, conclusic.:s of law, and argument.
Where such consolidation has taken place, those functions should not be
5 perfomed by other intervenors except upon a showing of prejudice to such other intervenors' interest or upon a showing to the satisfaction of the Board that the record would otherwise be incomplete.
C.
Necotia tion The parties should be encouraged to negotiate at all times prior to and during the hearing to resolve contentions, settle procedurcl disputes, and better defiae issues.
As apprcpriate, negotiations should be monitored by the board through written reports, prehearing conferences, and telephone con-ferences, but the boards should not become directly involved in the negotia-tions themselves.
D.
Board Manacement of Discovery, The purpose of discovery is to expedite hearings by the disclosure of information in the possession of the partins which is relevarit to the subject matter involved in the proceeding so that, inter alia, issues may be narrowed, stipulated, or eliminated and evidence to be presented at hearing can be stipu-lated or otherwise limited to that which is relevant.
The Commission is con-cerned that discovery not delay hearing through abuse of discovery devices or their overuse, however well intentioned, by the parties.
Accordingly, the Boards should manage and supervise all discovery, including not only the initial discovery directly following admission of contentions, but also any discovery conducted thereafter.
The Commission reindorses the policy of voluntary discovery, and encourages the Boards, in consultation with the parties, to establish time frames for the compietion of both voluntary and involuntary discovery.
6 Each individual Board shall determine the method by which it supervises the discovery orocess.
Possible methods include, but are not limited to, written reports fren the parties, telephone conference calls, and status recort conferences on the record.
In virtually ali instances, individual Ecards shculd schedule an initial conference with the parties to set a general discovery schedule icediately after contentions have been admitted.
E.
Settle ent Con #erence Licensing Boards are encouraged to hnid settlement conferences with the parties.
Such conferences are to serve the purpose of resolving as many con-tentions as pessible by negotiation.
The conference is intended to:
(a) have the parties tientify those contentions no lo'ger considered valid cr imoortant by their sponsor as a result of infor ation generated through dis-covery so that such contentions can be eliminated from the proceedinc, and (c) to have the parties negotiate a resolution, wherever possible, of all or part of any contention still held valia and important.
The settle ent con-ference is not intended to raplace the prehear;'g conferences orovided by 10 CFR 2.751a and 2.752.
F.
Timely Ta;lincs on Prehearine "atters The Licensing Boar., should issue tirrely rulings on all matters before it.
In carticular, timely rulings should be issued on crucial er potentially dispositive issues at the earliest practicable juncture in the proceeding.
Such rulings may eliminate the need to adjudicate one or more subsidiary issues, by rulir;,ihich,cculd affect the sc:pe of an evidentiary presentation snould be mndered pro ptly so that resources would not unnecessarily be used because
7 of the uncertainties regarding the definition of mat'ers in controversy which would exist without the ruling.
In other words, a board should issue timely rulings on questions of fact and law to define the issues in controversy in as r, arrow and specific a manner as is justifieu.
Rulings on procedural matters to regulate the course of the hearing should also Le rendered in a timely manner.
If a significant legal or policy ques'; ion is presented on M1ch Commis-sion guidance is needed in r Mer to prevent detriment to the public interest or expense, a board should promptly refer or certify tne matter to the Atomic Safety and Licensing Appeal Board or the Commission, as appropriate.
The Appeal Board or the Commission will make its best effort to answer such questions promptly.
A board should exercise its best judgment to try to anticipate crucial issues which may requii e such guidance so that the reference or certification can be mis,e and the response received without holding up the proceeding.
G.
Summary Disposition In exercising its aut'lority to regulate the course of a hearing, the Boards should encourage the part es to invoke the summary dispositior, procedure on issues where there is no genuine issue of matarial fact so tnat evidentiary hearing time is not unnecessarily devoted to such Msues.
H.
Trial Briefs, Prefiled Testimony Outlines and Cross-Examination Plans All or any combination of tht se devices should be required at the discretion of the Board to expedite the orderly presentation by each party of its case. The Commission believes that crose-examination plans, which are to be submitted to the Board alone, would be of benefit in most proceedings.
Each Board must decide
8 which device or devices would be most fru'tful in managing or expediting its proceeding by, inter alia, limiting rep".tive end unnecessary direct oral testimony and cross-examination.
I.
Combininc Rebuttal and Surrebuttal Testimony For particular, highly technical issues, Boards are encourageG during rebuttal and surrebuttal to put opposing witnesses on the stand at the same time so that each witness will be able to comment inmediately on an opposing witness' answer to a question.
Appendix A to 10 CFR Part 2 explicitly recog-nizes that a board may find it helpful to take expert testimony from witnesses on a roundtable basis after the receipt in evidence of prepared testimony.
J.
Sua Soonte Raisina of Issues by Boards
[To
'>e prepared following Commission discussion.]
K.
Filina of Proposed Findinas of Fact and Conclusions of Law Parties should be expected to file proposed findings of fact and conclusions of law cn issues which they have raised.
The Boards, in their discretion, may refuse to rule on an issue in their initial decision if the party raising the issue has not filed proposed findings of fact and conclusions of law.
In draf t-ing initial decisions, Boards are encouraged to adopt proposed findings as frequently as they deem appropriate.
L.
Initial Decisions Licensing proceedings vary greatly in the difficulty and complexity of issues to be decided, the number of such issues, and the size of the record
O compiled.
These factors bear on the length of time it will take the Boards to issue initial decisions.
The Connission expects that decisio,ns not only
. e.P will continue to be of high quclity, but also that decisionsyssue as soon as practicable after the submission of proposed findings of fact and conclusions of law to insure that facilities, if qualified, are licensed as soon as they are ready to operate.
Accordingly, the Chief Admininstrative Judge of the Atomic Safety and Licensing Board Panel should schedule all Board assignments so that after the record has been completed individual Board members are free to write Initial Decisions on those applications where const.uction has been completed.
Issuance of such decisions should take precedence over other responsibilities.
IV.
COMMISSION MONITORING The Commission will closely monitor hearing proceedings in order to offer guidance on procedural and substantive matters, where appropriate, as part of its inherent supervisory authority over pending adjudications.
For the Commis"on SAMUFc J. CHILK Secretary of the Commission Dated at Washington, D.C.
this day of
, 1981