ML19257D006
| ML19257D006 | |
| Person / Time | |
|---|---|
| Issue date: | 12/18/1979 |
| From: | Bickwit L, Shapar H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD), NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML19257D001 | List: |
| References | |
| REF-10CFR9.7 SECY-79-668, NUDOCS 8001310203 | |
| Download: ML19257D006 (15) | |
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UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D. C. 20555 CONSENT CALENDAR ITEM;ECV-79-668 December 18, 1979 FOR:
The Ccmmission FROM:
Howard K. Shapar xecutive Legal Director Leonard Bickwit, Jr.
General Counsel SUBJ ECT:
REGULATI0flS IMPLEMENTING THE RECOMMENDATI0tl5 0F THE TASK FORCE STUDY OF THE USE OF ? ART-TIME MEMBERS OF THE ASLSP PURPOSE:
To respond to the Commission's directive *to prepare proposed rules on the Task Force recommendations.
DISCUSSION:
In response to the Commission's request that we examine the Ccemission's rules of pra:tice to identify rule changes necessary to implement the recommendations of the task force study concerning the use of part-time members of the Atomic Safety and Licensing Board Panel, we have analyzed the rules of practice and have prepared rule changes for your approval. (Attachment A).
The substance of the Task Force reconnendations is outlined below.
The first recommendation, that the Commission continue the use of part-time members on the Licensing Board Panel, is assentially an affimation of existing practice.
As such, it requires no rule changes.
The second recommendation is that the memborship of the ASLBP be reviewed and enlarged to add members to cover new areas of expertise which would be helpful to the Panel work.
The Task Force identified three particular areas in which greater ASLBP expertise is needed:
- 1) knowledge of electric utility industry, 2) geology /
seismol;gy, and 3) " hands-on" power reactor experience.
This recommendation is entirely consistent with the existing statutory and regulatory provisions authorizing appointment of ASLS members who "have such technical or other qualifications as the Ccamission or the Chaiman of the Atomic Safety and Licensing Board Panel deems appropriate to the issues to be decided." (10 CFR 2.721; see also,10 CFR Part 2, App. A; Atomic Energy Act i 191.)
Accordingly, no changes in the rules of practice are necessary to implement the second re endaign.
Contacts: E. Grammer Ex. 27673 M. Chopko Ex. 43224
- Ref:
Chilk to Sucx, et al memo dated 11/5/79 u 001310 2(13
The Commission The third recommendation entails four alternative methods of using part-time ASLBP members to facilitate the hearing process and improve the quality of the record produced.
The Task Force suggested that the boards be empowered to use at their discretion the following special assistants drawn from the ASLBP:
1)
Technical interrogators in their individual fields of expertise.
2)
Alternate Atomic Safety and Licensing Board members to sit with the board and participate in the eviden-tiary sessions on the issue for which the alternate members were designated.
3)
Special masters to hear evidentiary presentations by the parties on specific technical matters.
4)
Consultants to brief the board prior to the hearing cn the general technical background of subjects involving complex issues.
Because this recommendation would alter existing decision-making procedures and present authority in the regulations does not explicitly include the use of such special assistants to the licensing boards, an amendment to the regulations is in order.
(See Attachment A.)
The fourth item appearing in the " Conclusions and Recommenda-tions" section of the Task Force Report is the concept of a two-board proceeding--a "prehearing" or issues board and a " hearing" board.
The Task Force concluded, however, that this idea is not recommended because it might tend to increase the length of the licensing proceedings.
Thus, we have prepared no nJle changes to implement this fourth item.
In order to implement this proposed rule change emLodying the Task Force recommendations, the Commission should note that it will be necessary to conform existing regulations on separatien of functions to the proposed regulation on the use of part-time ASLBP members as described in Attachment A.
See 10 CFR 2.719, which makes no provision for such special assistants.
It will also be necessary to make a corresponding change in the proposed final rule changes to section 2.719 now pending before the Commission in the memorandum from the General Counsel to the Commission on Ex Parte Communications and Separation of Functions datedletober 15, 1979.
Specific 1845 117
The Commission changes to the proposed final section 2.719 are noted in Attachment B.
There does not appear to be any ex parte problem since the special assistants would all be ASLB Panel members who are " adjudicatory employees" as defined in the ex parte rules and since " adjudicatory employees" are not prohibited from off-the-record discussions with each other.
(See 10 CFR 2.780(a),(f); proposed final 10 CFR 2.780(c) (Oct.15,1979 memo.).)
The Atomic Safety and Licensing Board and Atomic Safety and Licensing Appeal Board were consulted in the develor-ment of the proposed regulations in Attachment A and have no objections to the proposed rule changes.
RECOMMENDATION:
That the Commission approve the Proposed Rules for publication in the FEDERAL REGISTER.
2/igh 9 yv Howard K. Shapar Executive Legal Director
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Leonard Bickwi t, Jr.
General Counsel Attachments:
A.
Proposed Regulations B.
Modification to Separation of Functions Amendment Commissioners' comments or consent should be provided directly to the Office of the Secretary by c.o.b. Friday, January 4,1980.
Comission Staff Office comments, if any, should be submitted to the Commissioners NLT December 28, 1979, with an information copy to the Office of the Secretary.
If the paper is of such a nature that it requires additional time for Snalytical review and coment, the Commissioners and the Secretariat should be apprised of when comments may be expected.
This paper is tentatively scheduled for affirmation at an Open Meeting during the Week of January 14, 1980.
Please refer to the appropriate Weekly Commission Schedule, when published, for a specific date and time.
DISTRIBUTION 1845 li8 Commissioners Commission Staff Offices Exec Dir for Operations ACRS ASLBP ASLAP
O O
ATTACHMENT A 1845 119
Attachment A
[7590-01]
NUCLEAR REGULATORY COMMISSION
[10 CFR Part 2]
Rules of Practice AGENCY:
U.S. Nuclear Regulatory Commission ACTION:
Proposed Rule.
SUMMARY
The Nuclear Regulatory Commission is proposing to amend its
" Rules of Practice" to permit NRC Atomic Safety and Licensing Boards to use special assistants to be drawn from the membership of the Atomic Safety and Licensing Board Panel.
The special assistants may be allowed to participate as technical interrogators, alternate Atomic Safety and Licensing Board members, s pecial masters, or consul tants. The purpose of the amendments is to facilitate the hearing process and improve the quality of the record produced.
DATES:
Comment period expires (60 days after publication date).
ADDRESSES:
Written comments or suggestions for consideration in connec-tion with the proposed amendments should be submitted to the Secretary of the Commission, Washington, D.C. 20555, Attention: Docketing and Service Branch.
Copies of comments received may be examined at the Commission's Public Document Room at 1717 H Street, NW., Washington, D.C.
1845 120
Attachment A
-?-
[7590.-0]
FOR FURTHER INFORMATION CONTACT:
Mark Chopko, Office of General Counsel, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555 (phone 202-634-3224); Guy H. Cunningham III, Office of the Executive Legal Director, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555 (phone 301-492-7203).
SUPPLEMENTARY INFORMATION:
On October 11, 1979, the U.S. Nuclear Regulatory Commission Task Force Study of Use of Part-Time Members of the Atomic Safety and Licensing Board Panel (referred to herein as ASLBP), recommended that the Connission continue to use part-time members on licensing boards and adopt several alternative methods of employing those members to make more effective use of their expertise.
Specifically, the Task Force recommended that the presiding officer have the option of using part-time ASLBP members as technical interrogators, alternate ASLB members, special masters, or consultants to facilitate the hearing process and improve the quality of the record produced.
The Task Force concluded that the part-time members on the ASLBP are an importaat asset to the Commission.
It found that their use should be con-tinued since they allow the ASLBP to even out its caseload, afford the opportunity for use of additional expertise, provide a greater range of viewpoints and attitudes, and enhance the public perception of the boards' impartial i ty.
While the Task Force was concerned that the present trend toward longer and more intensive hearings would adversely affect the avail-ability of part-time members, the Task Force concluded that alternate methods for their use should be developed rather than lose the benefit f
18 121
Attachment A [7590-0]
their expertise.
The Task Force believed that methods could be developed to facilitate the hearing pncess and improve the quality of the record produced through expanded use of part-time ASLBP members.
The proposed regulations respond to the Task Force recommendations for expanded use of ASLBP part-time members as special assistants to hearing boards. Although the special assistants drawn from the ASLBP will report to or advise the individual boards, the three designated members of an Atomic Safety and Licensing Board will retain all ultimate decisionmaking authority.
A new section 2.722 is proposed to be added to give the presiding officer authority to designate such special assistants.
Since the matters at issue would not be determined by a board in a particular proceeding until after the notice of hearing and the pre-hearing conference ruling, it would not be practical to appoint a special assistant until some later need for one were established by the board during the proceeding.
Thus, the proposed regula-tion permits appointment at any appropriate time during a proceeding.
- Also, because the special tssistants are indeed Panel members, Section 2.722(a) provides for notice of the appointment to the parties in order to pennit motions for disqualification as described in 10 CFR ".704.
Section 2.722(a)(i) provides for technical interrogators who may assist the presiding officer during the hearing by examining witnesses in the interroga-tors' field of expertise.
As is the current practice, the board may wish to reserve its questions until the parties have completed questioning of the witnesses (unless testimony is being taken on a roundtable basis or there is 1845 122
Attachment A [7590-0]
some occasion for clarification of testimony as rendered), since counsel for the respective parties will generally be prepared to develop the lines of pertinent questions.
(See 10 CFR Part 2 App. A V(11).)
In questioning from the board, however, it is expected that the technical interrogator would take the lead in questioning in matters in his field, so that the record will be as complete as possible.
Section 2.722(a)(ii) authorizes special masters to hear evidentiary presenta-tions by the parties on specific technical matters, and, upon completion of the presentation of evidence, prepare a report that would become part of the record. Although the special master is authorized to conduct the evidentiary presentation at which he gathers infomation for his report, appeals on his evidentiary rulings may be taken to the presiding officer and the presiding officer retains final decisionmaking authority over the issues heard and reported on by the special master.
Section 2.722(.a)(iii) authorizes an alternate Atomic Safety and Licensing Board member to participate in that portion of the evidentiary sessions relating to his area of expertise and report his conclusions to the presiding officer. This report is advisory; the presiding officer retains final authority on the issue for which the alternate member was designated.
Section2.722(b) authorizes consultants to brief the presiding officer prior to the hearing on the general technical background of issues to be heard.
Such appointment is not subject to the notice and disqualification procedures described in i845 123 section 2.704.
Attachment A [7590-0]
Section 2.718 is proposed to be amended to authorize the presiding officer to appoint the special assistants described in section 2.722.
Appendix A to Part 2 is amended to confom it to these proposed regulations authorizing special assistants to the ASLB's.
Because the use of special assistants as defined in these proposed rules had not been considered at the time when the NRC separation of functions regula-tions were put into effect (see 10 CFR 2.719), it is necessary to confom the NRC regulations to this newly proposed addition to. Licensing Board functions.
No changes to the existing NRC reculations on ex parte communica-tions are necessary under this proposal because special assistants would be Panel members who are adjudicatory employees as defined in the g parte rules and because adjudicatory employees may discuss proceedings with each other.
(10 CFR 2.780(a),(f).)
PROPOSED REGULATORY CHANGES:
Pursuant to the Atomic Energy Act of 1954, as amended, the Energy Reorganiza-tion Act of 1974, as amended, and section 553 of the United States Code, notice is hereby given that adoption of the following amendments to 10 CFR Part 2 are contemplated.
1.
A new section 2.722 is proposed to be added as follows:
Sec. 2.722 Special assistants to the presiding officer.
(a)
In consultation with the Panel Chaiman, the presiding officer may, at his discretion, appoint from the Atomic Safety and Licensing 1845 124
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Attachment A [7590-0]
Board Panel established by the Commission, personnel to assist the presiding officer in taking evidence and preparing a suitable record for review.
Such appointment may occur at any appropriate time during the proceeding but shall, at the time of the appointment, be subject to the notice and disqualification provisions as described in 5 2.704.
Such special assistants may function as:
(i) Technical interrogators in their individual fields of expertise.
Such interrogators shall be required to study the written testimony and sit with the presiding ofiicer to hear the presentation and cross-examination by the parties of all witnesses on the issues of the interrogators' expertise, taking a leading role in examining such witnesses to ensure that the record is as complete as possible; (ii) Special masters to hear evidentiary presentations by the parties on specific technical matters, and, upon completion of the presentation of evidence, prepare a report that would become part of the record.
Special masters may rule on evidentiary issues brought before them, in accordance with 55 2.743 and 2.757.
Appeals of such rulings may be taken to the presiding officer in accordance with procedures which shall be established in the presiding officer's order appointing the special master.
Special masters' reports are advisory only; the presiding officer shall retain final authority with respect to the issues heard by the special master; or 1845 125
Attachment A [759 0-0]
(iii) Alternate Atomic Safety and Licensing Board members to sit with the presiding officer, participate in the evidentiary sessions on the issue for which the alternate members were desig-nated by examining witnesses, and advise the presiding officer of their conclusions through an on-the-record report. This report is advisory only; the presiding officer shall retain final authority on the issue for which the alternate member was designated.
(b) The presiding officer may at his discretion infomally seek the assistance of Members of the Atomic Safety and Licensing Board Panel to brief the presiding officer on the general techni-
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cal background of subjects involving complex issues which the presiding officer might otherwise have difficulty in quickly grasping.
Such infomal briefings shall take place prior to the hearing on the subject involved and shall supplement the reading and study undertaken by the presiding officer. They are not subject to the procedures described in section 2.704.
2.
Section 2.718 is proposed to be amended by redesignating subparagraph (k) as (1) and subparagraph (1) as (m), and inserting a.new subpara-graph (k) as follows:
Sec. 2.718 Power of presiding officer.
- 1845 126*
Attachment A [7590-0]
(k) Appoint special assistants from the Atomic Safety and Licensing Board Panel pursuant to 5 2.722.
(1)
Issue initial decisions; and (m) Take any other action consistent with the Act, this chapter, and sections 551-558 of title 5 of the United States Code.
3.
Section 2.719 is proposed to be amended by revising 2.719(b) to read as follows :
Sec. 2.719 Separation of functions.
(a)
(b)
In any adjudication, the presiding officer may not consult any person other than a member of his staff or a special assistant as provided for in Q 2.722 on any fact in issue unless on notice and opportunity for all parties to participate, except (1) as required for the disposition of g parte matters as authorized by law and (2) as provided in paragraph (c) of this section.
4.
Appendix A of 10 CFR Part 2 is proposed to be amended by. inserting the following as a new third paragraph:
1845 127
Attachment A [7590-0]
An Atomic Safety and Licensing Board may at its discretion appoint special assistants to the Board from the membership of the Atomic Safety and Licensing Board Panel established by the Commission.
Thes~e special assistants are to be employed to facilitate the hearing process and improve the quality of the record produced for review.
The special assistants may serve as technical interrogators in their individual fields of expertise, alternate Atomic Safety and Licensing Board mem-bers to sit with the Board and participate in the evidentiary sessions on the issue for which the alternate members were designated, special masters to hear evidentiary presentations by the parties on specific technical matters, or infomal consultants to brief the board prior to the hearing on the general technical background of subjects involving complex issues.
(Secs. 161b, 191, Pub. L. No.83-703, 68 Stat. 948 et seq. (42 U.S.C. 220lb, 2241))
Dated at Washington, D.C. this day of
, 1979.
For the Nuclear Regulatory Commission Samuel J. Chilk For the Commission 1845 128
e ATTACHMENT 8 1845 129
Attachment B Modifications to proposed final rules pendino before the Commission (new '
language underscored):
9 2.719 Separation of Functions:
Commission Adjudicatory Employees (a)
(c)
In any adjudication, the Commission adjudicatory employees listed in paragraphs (a)(2) through (a)(4) of this section shall not consult any person, other than a member of their respective staffs, their respective special assistants, or their respective boards, on any fact in issue unless on notice and opportunity for all parties to participate, except (1) as required for the disposition of g cante natters as authorized by law and (2) as provided in paragraph (d) of this section.
The supplementary information accompanying this proposed final rule would require modification to conform to this change, unless the rules in Attach-ment A are issued before this proposed final rule.
1845 130