ML19252A503
| ML19252A503 | |
| Person / Time | |
|---|---|
| Issue date: | 03/09/1981 |
| From: | Shapar H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Bickwit L, Cotter B, Rosenthal A NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP), Atomic Safety and Licensing Board Panel, NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| Shared Package | |
| ML19252A504 | List: |
| References | |
| FOIA-81-104 NUDOCS 8103300338 | |
| Download: ML19252A503 (8) | |
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"a rcn 9,1951 NOTE TO:
Lecnard Cich<it, Cencral Counsel Alan S. Posenthal, Chainvr Attric Safety and Licensino Apneal Board E. Paul Cotter, Jr.
Chief /,dninistrative Judge Atonic Safety and Licensing Coard ranel SL'BJECT:
CONDUCT C5 LICEf!S!^ r 00ARD PRCCEEDIt'CS I have reviewed Tony Cetter's Draf t Proposed Statorent of Policy en the subject cf "Conrission Cuidance en Conduct of Licensing Ecard Proceedings" which he ser.t to the Comission on t' arch 5,19E1.
l'y suggestions for changes are included in a revised draft which is attacted.
Further changes will undoubtedly be rec;uired as a result of Corrission cecisions reachec' in the ongoing Corrission reetings on revised licensing pecedures (including possible rule changes).
Cne of the things I have tried to do here is to ccrrelate this staterent with cur existing policy staterent (Appendix A to Part 2) and the situation of the " eleven irrected plants".
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.u In tre past, the scheduling and pro:essing of licensing reviews has typically provided sufficient time so that the hearings would be co pleted and the license issued by the tire the nuclear plant is co pieted and ready to c;er-
- ate, For the first tire, ho.ever, these hearings are or will be contir.uing for at least eleven nuclear poner plants tnat should be co~plete and ready to operate before the hearings conclude.
This situation is an incirect con-se;;ence of the Three Mile Island (TMI) accident, which required a reexa-i-natico of the entire regulatory structure.
Af ter TM!, for a period of cver a year and a half, the Corrission's attention and resources were focused on plants which were already licensed to operate and to the preparatice o' an action plan which specified a dis: rete set of TMI-related reauirecents for nes operating reactors.
During this period utilities wnich had received construction permits continued to build the aJthorized plants.
The severe public interest impact of these delays has been discussed exten-sively before interested co nittees in the House and Senate.
Altnou;5 there ray be differences of opinion on the precise overall inpact cf these delays, as well as in the different esti-ates of the consecuences for each cf tre plants, as a general proposition, the delay costs now are esti ated to range in the tens of millions of dollars per mcnth for each corpleted plant.
Mareover, these plants would need an 0:erating license if their generating capacity is to be responsive to any severe need for power situatico whitt may devel;p.
As ~you are aware, the Corrission is taking every ef fort to see that availatie resources are devoted to the ccTpletion of its licenring reviews of these ror exa ple, plants and to avoid all unnecessary celays in nese hearings.
tne Office of haclear Reactor Regulation (O' RR) and the Office of the Executive Legal Director, as a part of their intensive effort to expedite the processinc of facility license ap? ications, have instituted an extended l
work week.
B. Paul Cotter, Jr. A presiding licensing board is the principal entity which is in a position to impose an informed direction over the hearing phase of the overall licensing process on the basis of detailed knowledge of what is required to meet the legitirate interest of the public as well as legitimate interest of the pa rties.
A presiding licensing board has the responsibility for controlling the course of the hearing so that it 05 completed expeditiously.
Tne authority to do so (see $5 2.718 and 2.757) ana the procedural tools to carry it out are provided in the Rules of Practice,10 CFR Part 2, and nore detailed gu.d-ance is given in the Staterent of General Policy and Procedure in appendix 1 to Pa rt 2.
I fully recognize the difficulties uncer which licensing boards labor, even under nor al circumstances.
I also recognize that efficiency and expedition of the hearing process are not the only interests at stake.
It is central in the Commission's accomplishment of its role that the hearing process be conducted fairly.
Nonetheless, unnecessary delay does not properly serve any O' the interests which could be affected by the hearing process.
In vies of tne unique responsibility bestowed on presiding licensing boards, and the important challenge which the Commission is now facing, I would like to raiterate the Coccission's firm policy on expediting cases:
In Tne Statement of Considerations which accompanied the restructured Rules of Practice, the Comission said (37 Fed. Reg. 15127, July 28, 1972):
"The Commission is concerned not only with its obligation to the segment of the public participating in licensing proceed-ings but also with a responsibility to the general public--a responsibility to arrive at sound decisions, whether f avorable or unfavorable to any particular party, in a tinely fashion.
'he Commission expressly recognizes the positive necessity for expediting the decisionmaking process and avoiding undue delays.
It expects that its responsibilities under the Atomic Energy Act of 1954, as amended, the National Environ-mental Policy Act of 1969, and other applicable statutes, will oe carried out in a nanner consistent with this policy in the overall public interest."
The Statement of General Policy and Procedure (10 CFR Part 2, Appen-dix A) on the conduct of hearings for the licensing of nuclear power plants now states:
"Tne Statement [of General Policy and Procedure] reflects the Comission's intent that such proceedings be conducted expedi-tiously and its concern that its procedures naintain sufficient flexibility to acconmodate that objective.
This position is founded upon the recognition that fairness to all tne parties
B. Paul Cotter, Jr. in such cases and the obligation of administrative agencies to conduct their functions with efficiency and economy, require that Commission adjudications be conducted without unnecessary delay."
More recently, the Commission has nott.d (Miscellaneo;s A endnents to its Rules of Practice, 43 F.R.17798 and 17801, Acril 27,1978) that it is "conmitted to developing a hearing proces: which will produce decisions in a timely fashion" and referred to its "respon-sibility to t.he general public to arrive at sound licensing decisions in a tinely fashion."
Implamentation of this long-standing policy of the Commissior is, in larae
- part, the responsibility of each presiding licensing board.
Recently'in public Commission neetings, as well as in an earlier seminar which I convened
("Seninar Report on the Public Hearing Process For Nuclear Power Plants",
NUREG-0545, June 26-27, 1978), constructive suggestions have been discussed on steps which presiding boards could take to reduce or elininate unnecessary delay from each of the three phases (prehearing, the hearing itself, post-hearing, including the rendering of a decision) of the hearing process.
In the final analysis, the actions, consistent with applicable rules, which can be taken to accomplish that objective are limited primarily by the good sense, judgment, and nanagerial skills of a presiding board which is dedi-cated to the task of seeing that the process moves along at an expeditious pace consistant with the demands of fairness.
Some of the najor observa-tions which have emerged from these discussions are:
The effectn eness of a presiding licensing board depends on its ability to organize and manage the proceeding.
In this regard, the establishment of schedules for the completion of the hearing and for the compietion of significant actions is necessary.
Even though such schecules must of r.ecessity be flexible in appropriate circumstances, a presiding board should insist that all parties make dedicated efforts to neet schedules.
In this regard, the times provided for in the Rules of Practice may ordinarily be reaarded as the maximun times for the various milestones in the hearing process.
Reasonable reductions in these times are entirely proper if a presiding board deems such reduction to be in the interest o# regulating the course of the hearing. A board should be satisfied that the section 2.711 " good cause" require-ment for adjusting times fixed by it or prescribed by Part 2 is met.
All reqJests for extension of time should be in writing and should be filed with the Board three working days before the time spec.fied expires.
With regard to its duty to r.anage and regulate the course of a hearing, a presiding board should make it clear to participating parties that the failure to comply with any obligation properly
B. Paul Cotter, Jr. imposed in accordance with applicable law and Commission regula-tions, without a showing of good cause, will result in appropriate sanctions which include when appropriate, dismissal of that party from the proceeding.
Infonnal Consultation and Conferencqs_,
Full advantage should be taken of the use of informal consultation end infornal conferences to work out measures such as those with respect to the admissibility of contentions and the nature and scope of discovery.
Use of these informal approaches have a clear potential for resulting in a more expeditious hearing than a situation in which every dispute in these areas must ultimately be resolved by the board itself.
A board should encourage parties to negotiate through informal consultation at all times prior to and during the hearing to resolve contentions, settle procedural disputes, and better define issues.
Negotiations should be monitored by the board tnrough written reports, prehearing conferences, and telephone conferences, but the boards should not become directly involved in the negotia-tions themselves.
Se t tlement s.
A board should encourage settlements either as to particular issues in a proceeding or the entire proceeding.
At least, following completion of discovery, and prior to the filing of motions for summary disposition, boards are encouraged to hold settlement conferences with the parties.
Such conferences are to serve the purpose of resolving as many cor.tentions as possible by negotiation.
The conference is intended o:
(a) have the parties identify those contentions which they no longer consider as valid or important so that such contentions can be eliminated from the proceeding, and (b) to have the parties negotiate a resolution, whereever possible, of all or part nf any contention still held valid and important.
The settlement conference would not replace the prehearing conferences provided by $5 2.751a and 2.752 in the Rules of Practice.
Summa ry Disposition.
In exercising its authority to regulate the course of a hearing, full use should be made of the summary disposition procedure so tha+ evidentiary hearing time on any issue, which although allegeo.f in controversy, is not the sub-ject of a factual dispute which needs to be resolved at an evi-dentiary hearing.
Timely rulinas on crucial issues. A board should issue timely rulings on crucial or potentially dispositive issues at the earliest practicable juncture in the proceeding.
For example, a ruling on such an issue may eliminate the need to adjudicate one or more subsidiary issues.
Any ruling which would affect the scope of the evidentiary presentation, and the time and resources
B. Daul Cotter, Jr..
needed for such a presentation, should be rendered promptly so that resources woule not unnecessarily be used because of the uncertainties regarding the definition of matters in controversy which would continue to exist without the ruling.
In other words, a board should issue timely rulings on questions of fact and law so as to define the issues in controversy in as narrow and specific manner as is justified.
Rulings on procedural matters to regulate the course of the hearing should also be rendered in a timely manner.
If a significant legal or policy question is presented on which Commission guidance is needed in order to prevent detriment to the public interest or expense, a board should promptly refer or certify the matter to the Commission.
The Commission, for its part, will make its best effort to answer such questions promptly.
A board should exercise its best judgnent to try to anticipate crucial issues which may require such Commission guidance so that the reference or certification can be made and the response received withost holding up the proceeding.
Board nanagement of discovery.
Discovery should be limited to matters relating to the key issues in controversy.
In no event should the parties be permitted to use discovery procedures to delay the proceeding or to conduct a " fishing expedition." Unless there is a compelling reason for the non-disclosure of documents relating to such issues, they should be made available as a matter of course.
When a party resists a reasonable discovery request, the entire progress of the proceeding slows.
A board should manage and supervise all discovery, not only the initial discovery relating to admitted contentions, the applica-tion and acccmpanyirig environmental report, the original Safety Evaluation Report, and the Draf t and Final Environmental Statenent, but also discovery arising out of any relevant supplement to those documents.
A board, in consultation with the parties, should establish time frames for the completion of both voluntary and involuntary discovery.
Each board should determine the method by which it supervises the discovery process.
Possible methods include, but are not limited to, written reports from the parties, telephone conference calls, and status report conferences on the record.
In virtually all instances, individual boards should schedule an initial con-ference with the parties to set a general discovery schedule immediately af ter contentions have been admitted.
With respect to any discovery permitted following the filing of supplements to the SER and the FES, a board should closely monitor
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such discovery and insure that it is cc: leted as quickly as possible.
All useful managenent devices should be employed, and specific time frames should be established.
The f ailure of a party to co.cnly with discovery requirerents is subject to appropriate sanctions.
A board should, when justified, rule against the >.'nterests of a party which fails to cooperate in discovery requests.
For example, such sanctions nay include denial of the right to cross-examine or present evidence, d's-missal of the offending party, or dismissal of one or more of its contentions.
Schedule for conrencement of hearing. As a general goal, with recognition that there may be differences among individual pro-ceedings, boards should manage all prehearing procedures so that the evidentiary hearings will comnence not later than ncnths following the issuance of the requisite staff documents which are needed for the staff's presentation on key issues which are in controversy in the proceeding.
In all instances, however, if a board believes it advantageous and practicable to do so, it should commente the evidentiary hearing and decide discrete issues even prior to the availability of such staff riocuments.
Consolidated Intervenors.
In accordance with Section 2.715a of the Rules of Practice, intervenors should be consolidated and a lead intervenor designate) who has "substantially the same inter-est that may be affected by the proceedings and who raise [s] sub-stantially the same questions...."
As stated in this section, consolidation may not be ordered which would prejudice the rights of any party.
However, consonant with that condition, single, lead intervenors should be designated to present evidence, to conduct cross-examination, to submit briefs, and to propose findings of fact, conclusions of law, and argument.
Where cuch consolidation has taken place, those functions should not be per-formed 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 incompl e te.
Trial Briefs, Prefiled Testimony Outlines and Cross-Exanination Plans.
All or any combination of these devices should be recuired at the discretion of a board to expedite the orderly presentation by each party of its case.
Cross-examination plans, which are to be submitted to the board alone, should be benefic.ial in nost proceedings.
Each board nust decide which device or devices would be nost fruitful in managing or expediting its proceeding by, among others, limiting repetitive and unnecessary direct oral testimony and cross-exanination.
E. Paul Cotter, Jr. t Corbinir.g Rebuttal and Surrebuttal Testimonv.
Far particular, highly technical issues, a board is encouraged during rebuttal and surrebuttal to put opposing witnesses on the stand at the same time so thit each witness will be able to comment inrediately on an opposing witness' answer to a question.
Appendix A to Part 2 explicitly recognizes that a board may find it helpful to take expert testimony from witnesses on a roundtable basis af ter the receipt in evidence of prepared testimony.
Sinultaneous Filing of Proposed Findincs.
Whenever possible, a board is encouraged to require all parties to file proposed find-ings of fact and conclusions of law simultaneously.
Issuance of Initial Decisions.
Appendix A to Part 2 states as a target goal the desirability of having a board render its initial decision within 35 days af ter its receipt of the proposed findings of fact and conclusions of law which are filed by the parties in a contested case. While the Comnission recognizes that hearings involving particularly difficult, complex, or novel issues nay take longer to decide than others, boards are encouraged to make every effort to complete their work within this tire frane.
Boards are also encouraged to adopt proposed findings as fre-quently as they deem appropriate.
Steps such as those which I have identified herein, if vigorov:ly imple-rented, should reduce substantially unnecessary delay in the hearing process.
I am confident that the Commission can depend on your full cooperation and that of your colleagues in responding to the challenge we now face.
Joseph M. Hendrie Chairman