ML19247D874
| ML19247D874 | |
| Person / Time | |
|---|---|
| Issue date: | 02/17/1981 |
| From: | Bickwit L NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML19247D875 | List: |
| References | |
| FOIA-81-104, TASK-RINV, TASK-SE SECY-81-111, NUDOCS 8103160485 | |
| Download: ML19247D874 (4) | |
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Februa ry 17. 1981 SECY-81-lli v-5-
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From:
Leonard Bickvit, Jr.
General Counsel
Subject:
INT 7RVENTION IN NRC ADJUDICATORY PROCEEDINGS
Purpose:
To offer for Commission consideration a draft rule that would raise the threshold for contentions.
Discussion:
At the Chairman 's request, we are forwarding for your consideration a draft rule that would raise the threshold for the admissibility of intervenor contentions in NRC adjudicatory proceedings.
At present, a person petitioning to intervene in a formal NRC proceeding must file "a list of the contentions which petitioner seeks to have litigated in the matter and the bases for each contention set forth with reasonable spec-ificity."
10 CFR 2.714(b).
Th.is requirement serves the threefold purpose of (1) notifying th e applicant and NRC staff, at least generally, as to what Ehey will have to defend against or oppose, (2) limiting the scope of subsequent stages of the proceeding including discovery, and (3) assuring, to a degrec, daat the issues which petitioner seeks to raise are cognizable in an individual licensing proceeding.
If a would-be intervenor fails to raise at least one litigable contention, he may not participate in the proceeding as a party.
10 CFR 2.714(b).
The contention requirement was upheld in BPI v. Atomic Energy Conmission.
502 F.2d 424 (D.C. Cir. 1974).
The draft rule now offered for your consideration would also require the person petitioning for intervention (1) to identify for each contention the material f acts in dispute which warrant an ad udicatory hearing, and (2) to submit the 3
documents and other information relied on to show the existence of such facts.
If the applicant or NRC staf f contested the existence of such an issue, the contention would not be admitted for CONTACT:
C.W. Reamer, CGC 534-1493 ra a 0 s 1 0 0 R5btb
2 hearing if the documents and other information submitted showed tha t there was no genuine issue of material fact and no reasonable likelihood that additional facts could be developed which would show the existence of a genuine issue to be heard.
NRC rules providing for summary disposition on pleadings (10 CFR 2.749) recogni::e th e general principle that an adjudicatory hearing is not required for matters as to which there is no genuine dispute.
The draft rule seeks to integrate that general principle into the contention stage of a proceeding.
In practice, however, a would-be intervenor will be less prepared to fend off sur. mary disposition ar this early stage; th us, the rule change could signific?.ntly affect public participation in licensing proceedings.
The short timeframe for draf ting the rule has permitted no real study of tnis and other questions about th e workability and possible consequences of the rule change.
Recommendation:
Approve the draf t rule as a subject for further study by OGC and dizect OGC, after conraltation with the staf f and the adjudicatory boaJds, to report its cor.clusions and reccomenda-tions as to whether the draf t rule should be the subject of rulemaking.
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n Leonard Bickwit, Jr.
J General Counsel Commissioners' comments should be provided directly to the Office of the Secretary by c.o.b. Tuesday, March 3,1981.
Comission Staff Office coments, if any, should be submitted to the Commissioners NLT February 24, 1981, with an information copy to tna Office of the Secretary.
If the paper is of such a nature that it requires additional time for analytical review and comment, the Comissioners and the Secretariat should be apprised of when comments may be expected.
DISTRIBUTION Commissioners Commissien Staff Offices Exec Dir for Operations ACRS ASL5P ASLAP Secretariat
ATTACEMINT 1 1.
Amend 10 CFR 2.714(b) by inserting af ter the first sentence thereof the following new sentence:
The supplement must set forth a concise statement of the f acts supporting each contention together with references to the written documents and other information relied upon to show the existence of such f acts.
If an answer filed under subsection (d) of this section contests the existence of an issue of material fact with respect to any contention petitioner shall be afforded a reasonable opportunity to submit additional written documents or other information to show either an issue of material fact er a reasonable likelihcod that such an issue may be developed in the course of the proceeding.
2.
Amend 10 CFR 2.'714 (c) by inserting at the end thereof the followinc new sentence:
If a party states in its answer that, as to a particular contention of a petitioner, there exist no material f acts as to which there is a genuine issue to be heard, it shall submit a concise statement of the material facts not in dispute, together with references to the written documents and other information upon vnich it relies.
2 3.
Amend 10 CFR 2.714(d) by inserting at the end _ hereof the following new sentence:
No contention shall be admitted for hearing if the documents and other inforr.. ion submitted show that there is no genuine issue of materia. fact to be heard and that there is no reasonable likelihor.d that additional facts can be developed in the proceed'ng which will show the existence of such an issue.