ML19305D231
| ML19305D231 | |
| Person / Time | |
|---|---|
| Issue date: | 03/12/1980 |
| From: | Shapar H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Dingell J, Hart G, Moffett T, Udall M HOUSE OF REP., GOVERNMENT OPERATIONS, HOUSE OF REP., INTERIOR & INSULAR AFFAIRS, HOUSE OF REP., INTERSTATE & FOREIGN COMMERCE, SENATE, ENVIRONMENT & PUBLIC WORKS |
| References | |
| RULE-PRM-2-9 NUDOCS 8004140245 | |
| Download: ML19305D231 (8) | |
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-[g John D. Dinge11 8.Chaiman EI H. Shapar United States House of Representatives G. Cunningham cc: The Honorable Clarence J. Brown M. Staenberg Toby Moffett, Chaiman OELD United States House of Representatives OELD/RF cc: The Honorable Paul N. McCloskey, Jr.
C ntral Files Gary Hart, Chaiman SECY United States Senate OPE cc: The Honorable Alan Simpson ED0 OCA R&P Branch Chief The Honorable Morris K. Udall, Chairman R&P
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Subcomittee on Energy and the Environment R&P R/F Corsnittee on Interior and Insular Affairs
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United States House of Representatives DOCKET NUtE'F.7 Washington, D.C.
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Dear Mr. Chainnan:
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. Enclosed for your inforsation are ccpies of a Motice of Denial of Fetition
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for Rulemaking in Docket PRM 2-9, Cincinncti Gcs & Electric Co. et cl. to
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be published in the Federal Register.
The petition, filed July 3T."T979, requested the NRC to amend its Rules of Practice for Domestic Licensing Proceedings,10 CFR Part 2, to (1) limit cross-examination by intervenors V-to contentions of the particular intervenor admitted in controversy, (2) limit examination and cross-examination by intervenors strictly to the scope of the contention, and (3) direct the presiding officer to expedite hearings in NRC adjudicatory proceedings in a number of ways.
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Motice of receipt of the petition was published in the Federal Register.
One letter of connent supporting the proposed changes was received.
For the reasons stated in the enclosed notice, the Commission has concluded that the petition should be denied.
Sincerely,
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1 Docket No. PRM-2-9)
CINCINNATI GAS & ELECTRIC COMPANY, et al.
NOTICE OF DENIAL OF PETITION FOR RULEMAXING Notice is hereby given that the Nuclear Regulatory Commission has denied a petition for rulemaking (PRM-2-9) 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 t
petition requested the Commission to amend its regulation " Rule. of Practice for Domestic Licensing Proceedings," 10 CFR Part 2, through the addition of a new 5 2.718a 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 intervenors to contentions of the particular intervenor admitted in contro-versy, (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.
Spticifhpily, the petitioners requested that the Commission amend 10 CFR Part 2 of its regulations as follows:
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10 CFR Part 2 would be amended by adding a new section 2.718a to a
read:
5 2.718a Special rules for the conduct of evidentiary hearings.
(a) Cross-examination by an intervenor shall be limited to contentions 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),
i and by adding a new subsection (d)(15):
(d)(4)... As provided in 9 2.718a, cross-examination may be conducted 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 interrrupt the taking of evidence to consider procedural matters unrelated to the contentions scheduled i
for 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-r %s tion and cross-examination of witnesses in advance and the Board shall not permit long delays 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 evi-dentiary questions without delay and avoid prolonged conYerences and recesses before ruling on objections and motions relating to such matters.
(d)(11)... 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 practi-cable, limit luncheon recesses to one hour and morning and afternoon recesses to ten minutes.
A noti e of filing of the petition requesting comments by November 13, 1979 was published in the FEDERAL REGISTER on September 12, 1979 (44 FR 53114).
One letter of public comment was received which supported the petition.
Both the petition and comment were placed in the Commission's Public Docu-ment Room at 1717 H Street, N.W., Washington, D.C., where they are available for public inspection.
The Nuclear Regulatory Commission shares the concern voiced by the petitioners and commenter regarding the need for efficiency in the Commission's adjudica-tory proceedings and agrees that unnecessary delays should be avoided wheneyer possible.
Since its inception, the Commission has recognized the need for a I
nuclear power plant licensing process which will achieve more effective j
public participation in the process and, at the same time, increase efficiency in the conduct of public hearings.
However, the Commission finds that the proposed changes are either not justified or not necessary.
The first proposed rule change, limiting cross-examination by an int'ervenor only to its admitted contentions ($ 2.718a(a)), cuts against a long estab-lished principle first enunciated in Northern States Power Co. (Prairie i
Island Nuclear Power Plant, Units 1 & 2), ALAB-244, 8 AEC 857 (1974), that f
f an intervenor may cross-examine on contentions other than its own. This right is subject to the intervenor's having a discernible interest in reso-lution of the matter and is also subject to the Board's authority to assure that such participation is not irrelevant, repetitious, cumulative or other-wise of no value to the ventilation of the issues in contest (8 AEC 868).
t 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.
3uch 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 believd, nor do we intend, that this interpretation of our rules will lead to "open ended" exanination, as the staff' fears, or " needless and unproductive dela'y", 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 Appeal Board, the remedy lies in Commission instructions to licensing boards emphasizing those limita-l.
tions, rather than in a rule change.
On balance, it appears that the petitioners have not shown sufficient need l
l for departing from the Commission's established policy of permitting cross-examination by an intervenor on contentions other than its own.
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_ The second part of the proposed rule change, in 5 2.718a(b), that examina-tion and cross-examination by an intervenor be limited strictly to the scope of the specific contention, is also, at least in part, reflected in Commis-sion policy. The Appeal Board, in the Prairie Island case, 8 AEC 857, stated specifically, 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 bound-aries of the contested issues."
1 NRC 2.
The proposed changes to Appendix A would, for the most part, provide author-ity or instruction to atomic safety and licensing boards in conducting hearings.in facility licensing proceedings that are already included in Part 2 Thas, 6 2.714(e) and (f) authorize atomic safety and licensing boards to con-dition orders permitting intervention to (a) restrict irrelevant, duplicative w -
t 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 participa-tion 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.
Paragraph 2.743(b) requires parties to submit direct testi-mony in writing unless otherwise ordered by the presiding officer and 9 2.743(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.
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 Co.,pany, g al.
A copy of the Commission's letter of denial is available for putlic 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 C0K4ISSION Samuel J. Chilk Secretary of the Commission i
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