ML19294B606
| ML19294B606 | |
| Person / Time | |
|---|---|
| Issue date: | 01/15/1980 |
| From: | Shapar H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| Shared Package | |
| ML19294B552 | List: |
| References | |
| REF-10CFR9.7, RULE-PRM-2, TASK-CC, TASK-SE SECY-80-022, SECY-80-22, NUDOCS 8003050139 | |
| Download: ML19294B606 (13) | |
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January 15, 1980 SECY-80-22 UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D. C. 20555 CONSENT CALENDAR ITEM FOR:
The Comissioners FROM:
Howard K. Shapar, Executive Legal Director THRU:
Lee V. Gossick, Executive Director for Operations
SUBJECT:
DOCKET NO. PRM PETITION FOR RULE MAKING FILED BY TROY 8.
CONNER, JR. ON BEHALF 0F CINCINNATI GAS & ELECTRIC COMPANY, ET AL. TO AMEND 10 CFR PART 2 TO LIMIT CROSS-EXAMINATION BY INTERVENORS AND MAKE OTHER CHANGES IN PART 2.
PURPOSE:
To obtain Comission approval to publish a notice of denial of the petition (Attachment A) in the Federal Register.
CATEGORY:
This paper covers a routine matter.
DISCUSSION:
On July 31, 1979, Troy B. Conner, Jr. of Conner, Moore
& Corber, counsel for Cincinnati Gas & Electric Co.,
Columbus and Southern Ohio Electric Company and Dayton Power & Light Company filed a petition for rule niaking with NRC requesting amendment of Part 2, " Rules of Practice for Domestic Licensing Proceedings," through the addition of a new !i2.718a and changes to Appendix A to 10 CFR Part 2 by (1) limiting cross-examination by intervenors to conten-tions of the pe=ticular intervenor admitted in controversy, (2) limiting examination and cross-examination by intervenors strictly to the scope of the contention, and (3) directing the presiding officer to expedite hearings in NRC adjudicatory proceedings in a number of ways.
A notice of filing of the petition requesting comments by November 13, 1979 was published in the FEDERAL REGISTER on September 12,1979 (44 F.R. 53114-15).
One letter of public coment was received which supported the petition.
The attached Federal Register notice of denial of the petition (Attachment A) notes that the petition shows insufficient need for departing from the Comission's policy of permitting cross-examination by an intervenor on contentions other than its own established in the Prairie Island Case, 8 AEC 357, aff'd 1 NRC 1 (1975).
It also notes tnat some of the petitioners' objectives can be achieved under existing NRC regulations.
Contact:
M. Staenberg, OELD 492-8689 8003050
. RECOMMENDATION: That the Commission (a) Approve the attached Notice of Denial of Petition for Rule Making (Attachment A) for publication in the Federal Register and clu;e Docket No. PRM-2-9.
(b) Note (1) A letter transmitting a copy of the Notice of Denial will be sent to Troy B. Conner, Jr. at the same time that the notice is dispatched to the Federal Register for publication (Attachment B).
(2)
Denial of the petition for rule making does not con-stitute a major Federal action significantly affect-ing the quality of the human environment. Accordingly, no environmental impact statement, negative declaration
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or environmental impact appraisal need be prepared.
(3) The House Committees on Interior and Insular Affairs, Interstate and Foreign Commerce, and Government Operation, and the Senate Committee on Environment and Public works will be informed (Attachment E).
(4) A public announcement will not be issued.
COORDINATION:
The Chairmen of the Atomic Safety and Licensing Appeal Board Panel and the Atomic Safety and Licensing Board Panel and the Division of Rules and Records in the Office of Administration Concur.
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,/,
4, ibvho Howard K. Shapar Executive Legal Director Attachments:
A.
Notice of Denial of Petition for Rule Making B.
Draft ltr. to Troy B. Conner, Jr.
C.
Ltr. of Comment D.
Petition for Rule Making E.
Draft ltr. for Congressional Committees
. Commissioners' comments or consent should be provided directly to the Office of the Secretary by c.o.b. Thursday, January 31, 1980.
Commission Staff Office comments, if any, should be submitted to the Commissioners NLT January 24, 1980, with an information copy to the Office of the Secretary.
If the paper is of such a nature that it requires additional time for analytical review and comment, 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 February ll, 1980.
Please refer to the appropriate Weekly Commission Schedule, when published, for a specific date and time.
DISTRIBUTION Commissioners Commission Staff Offices Exec Dir for Operations ACRS ASLBP ASLAP Secretariat
ATTACHMENT A
\\Jd I
NUCLEAR REGULATORY COMMISSION (Docket No. PRM-2-9)
CINCINNATI GAS & ELECTRIC COMPANY, et al.
NOTICE OF DENIAL OF PETITION FOR RULE MAKING Notice is hereby given that the Nuclear Regulatory Commission has denied a petition for rule making submitted by Troy B. Conner, Jr., of Conner, Moore
& Corber, counsel for Cincinnati Gas & Electric Co., Columbus and Southern Ohio Electric Company and Dayton Power & Light Company.
The petition requested the Commission to amend its regulation " Rules of Practice for Domestic Licensing Proceedings," 10 CFR Part 2, through the addition of a new 52.7,18a and changes in Appendix A to 10 CFR Part 2.
In essence, petitioners seek' the elimination of problems which they believe prolong many NRC adjudicatory hearings.
The suggested amendments would, in petitioners' view, rectify the perceived problems by (1) limiting cross-examination by inter-venors to contentions of the particular intervenor admitted in controversy, (2) limiting examination and cross-examination by intervenors strictly to the scope of the contention, and (3) directing the presiding officer to expedite hearings in NRC adjudicatory proceedings in a number of ways.
Specifically, the petitioners request that the Commission amend 10 CFR Part 2 of its regulations as follows:
1.
10 CFR Part 2 would be amended by adding a new section 2.718a to read:
ATTACHMENT A
. 52.718a Special rules for the conduct of evidentiary hearings.
(a)
Cross-examination by an intervenor shall be limited to con-tentions granted to that intervenor, and (b)
Examination and cross-examination by an intervenor shall be limited strictly to the scope of its specific contention.
2.
Appendix A to Part 2 would be amended by adding the following new sentences at the end of subsections V.(d)(4), (5), (7), and (11),
and by adding a new subsection V.(d)(15):
(d)(4)... As provided in 82.718a, cross-examination may be con-ducted by intervenors only on contentions granted to them and examination and cross-examination by intervenors will be limited to granted contentions in order to protect against expansion of issues. The Board will not interrupt the taking of evidence to consider procedural matters unrelated to the contentions scheduled ft ' that session of evidentiary hearings, unless failure to do so would in fact prejudice the rights of a party.
(d)(5)... It is expected that parties will prepare their examina-tion and cross-examination of witnesses in advance and the Board shall not pemit long del'ys by counsel in conducting questioning.
Where a party is not represented by counsel, the presiding officer shall make every effort to avoid such delays.
(d)(7)... It is expected that the presiding officer shall endeavor to admit only competent and material evidence as well as relevant evidence.
Nothing contained herein shall prohibit the presiding
. officer from excluding matters which do not meet these tests or which are otherwise of no probative value to an issue.
It is expected that the presiding officer shall endeavor to rule on evidentiary questions without delay and avoid prolonged conferences and motions relating to such matters.
(d)(ll)... In contested cases, particularly in an operating license proceeding, the presiding officer shall avoid questioning in areas which are not essential to the resolution of contentions, except as provided in section VIII(b).
(d)(15)
In order to expedite the receipt of evidence in adjudica-tory proceedings, the presiding officer will, to the extent practicable, limit luncheon recesses to one hour and morning and afternoon recesses to ten minutes.
A notice of filing of the petition requesting comments by November 13, 1979 was published in the FEDERAL REGISTER on September 12,1979 (44 F.R. 53114-15).
One letter of public coment was received which supported the petition.
Both the petition and comment were placed in the Comission's Public Document Room at 1717 H Street, N.W., Washington, D. C., where they are available for public inspection.
The Nuclear Regulatory Comission shares the concern voiced by the petitioners and commenter regarding the need for efficiency in the Comission's adjudica-tory proceedings and agrees that unnecessary delays should be avoided whenever possible.
Since its inception, the Commission has recognized the need for a
.. - nuclear power plant licensing process which will achieve more effective public participation in the process and at the same time, increase efficiency in the conduct of public hearings.
The first croposed rule change, limiting cross-examination by an intervenor only to its admitted contentions (62.718a(a)), cuts against a long established principle first enunciated in Northern States Power Co. (Prairie Island Nuclear Power Plant, Units 1 & 2), ALAB-244, 8 AEC 857 (1974), that an intervenor nay cross-examine on contentions other than its own.
This right is subject to the intervenor having a discernible interest in resolution of the matter and is also subject to the Board's authority to assure that such participation is not irrelevent, repetitous, cumulative or otherwise of no value to the ventilation of the issues in contest (8 AEC 868).
The " Prairie Island Rule" was specifically affirmed by the Commission in 1975.
CLI-75-1,1 NRC 1 (1975).
The Commission there stated:
... we wish to underscore the fundamental importance of meaningful public participation in our adjudicatory process.
Such participation, performed in the public interest, is a vital ingredient in the open and full consideration of licensing issues and in establishing public confidence in the sound discharge of the important duties which have been entrusted to us.
It cannot be disputed that only if our rules provide for, and are perceived by all to allow, " full exploration of the safety and environmental aspects of each reactor for which a con-struction permit or operating license is sought," will the objective of such meaningful participation be achieved. We do not believe, nor do we intend, that this interpretation of our rules will lead to "open ended" examination, as the staff fears, or " needless and unproductive
. delay", as the hearing board anticipated. As stated by the Appeal Board, such inquiry shall be " strictly confined to the scope of the direct examination in order to insure that it does not have the effect of expanding the boundaries of the contested issues."
If, as suggested by the petitioner, atomic safety and licensing boards have not imposed the limitations on cross-examination on contentions other than those raised by the intervenor, as stated by the Appt.al Board, the remedy lies in Commission instructions to licensing boards emphasizing those limitations, rather than in a rule change.
On balance, it appears that the petitioners have not shown sufficient need for departing from the Commission's established policy of permitting cross-examination by an intervenor on contentions other than its own.
The second part of the proposed rule change,in !i2.718a(b), that examination and cross-examination by an intervenor be limited strictly to the scope of the specific contention, is also, at least in part, reflected in Commission policy.
The Appeal Board, in the Prairie Island case, 8 AEC 857, stated spesifically, in footnote 17 on p. 869, that:
To avoid possible misunderstanding, it should be stressed that we do not hold here that an intervenor may adduce affirmative evidence (or do anything else during the course of the hearing other than conduct cross-examination) with regard to an issue placed in contest by another party.
Existing policy as noted in the Commission's opinion in the Prairie Island case, quoted above, is that cross-examination on issues not raised by an
. intervenor must be " strictly confined to the scope of the direct examination in order to insure that it does not have the effect of expanding the boundaries of the contested issues."
l NRC 2.
The proposed changes in Appendix A would, for the most part, provide authority or instruction to atomic safety and licensing boards in conducting hearings in facility licensing proceedings that are already included in Part 2.
Thus, 52.714(e) and (f) authorize atomic safety and licensing boards to con-dition orders permitting intervention to (a) restrict irrelevalt, duplicative or repetitive evidence and argument, (b) require representation of common interests by a spokesman, (c) retain authority to determine priorities and control the compass of the hearing and (d) limit an intervenor's participation if the intervenor's interest is limited to one or more of the issues in the proceeding.
Section 2.718 grants to presiding officers all powers necessary to, among other things, take appropriate action to avoid delays, including regulating the course of the proceeding and the conduct of the participants.
Para 5raph 2.743(b) requires parties to submit direct testimony in writing unless otherwise ordered by the presiding officer and 92.743(c) provides that only relevant, material and reliable evidence which is not unduly repetitious will be admitted.
Section 2.757 permits the presiding officer to, among other things, take necessary and proper measures to prevent argumentative, repetitious, or cumulative cross-examination.
With respect to the proposal that the presiding officer admit only competent and material, as well as relevant, evidence, it should be noted that the new
- ,' Federal Rules of Evidence do not include the concept of " material evidence",
but define " relevant evidence" as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
It would not be appropriate for the Commission to, in essence, adopt a rule of evidence more restrictive than that used in the Federal courts.
In view of the foregoing, the Commission has denied the petition for rule making filed by Troy B. Conner, Jr. on July 31, 1979 on behalf of Cincinnati Gas & Electric Company, et al. A copy of the Commission's letter of denial is available for public inspection at the NRC's Public Document Room at 1717 H Street, N.W., Washington, D.C.
Dated at Washington, D.C., this day of
,1980.
FOR THE U.S. NUCLEAR REGULATORY COMMISSION Samuel J. Chilk Secretary of the Commission