ML19345H086
| ML19345H086 | |
| Person / Time | |
|---|---|
| Issue date: | 04/21/1981 |
| From: | Bradford P NRC COMMISSION (OCM) |
| To: | Ahearne J, Gilinsky V, Hendrie J NRC COMMISSION (OCM) |
| Shared Package | |
| ML19240C249 | List: |
| References | |
| REF-10CFR9.7 NUDOCS 8104300443 | |
| Download: ML19345H086 (14) | |
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. p3 At:g#e UNITED STATES
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't NUCLEAR REGULATORY COMMISSION W ASHIN GTON, D.C. 2 C555 e
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April 21,1981 OFFICE OF THE C!MMIS$10N ER
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i' MEMORANDUM FOR:
Chairman Hendrie Co:miissioner Gilinsky Commissio?nar Ahearne 3.
FROM:
Peter A. Bradford Attached is a revision of the proposed Licensing Board policy statement.
Attachment:
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As' stated cc:
D. Rathbun,.0PE T. Cotter, ASLSP A. Rosenthal, ASLAP S. Chilk, SECY /
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L. Bickwit, DG_C n
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't BACKGROUND l
Since the accident at Three Mile Island, the Commission has reexamined almost all' aspects of its operations relating to nuclear power plants in
.j some detail.
}{owever. we have not until now commented on our licensing process directly.
Some of the comments made by those who investigated the accident follow:
"We have no illusions about the fact that the ' hidden agenda' of many intervenors who ostensibly press many technical points is really to stop the plant from being built by causing protracted delay in the licensing process....
Nevertheless, intervenors have made.an important impact on safety in some instances - sometimes as a catalyst in the pre-hearing stage of proceedings, sometimes by forcing more thorough reviews of an issue or improved review pro-cedures on a relu'ctant agency.
More important, the promotion of f'
effective citizen participation is a necessary goal of the regulatory
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system."
(Spdcial Inquiry Group, pp. 143-144)
"While seme compromises between the needs of safety and the needs of an industry are inevitable, the evidence suggests that the NRC has sometimes erred on the side of the industry's convenience rather than carryino out its primary mission of assuring safety.
Two of the most important activities of NRC are its licensing j
function and its inspection and enforcement activities. We found l
serious inadequacies in both."
(Kemeny Commission, p. 19)
These criticisms must be kept in mind as the accident recedes in memory and the agency begins to issue licenses and to conduct hearinDs i
l in contested cases that involve substantial costs associated with delays in operation.,The Commission appreciates the many difficulties faced by its Boards in conducting these contentions and complex proceedings.
By and larhe, the Boards' have performed very well.
This documen't is intanded I
to deal with problems not primarily of the Boards' own making, though the Boards will play an important role in their resolution.
A
U.S. NUCLEAR REGULATORY COMMISSION STATEMENT OF POLICY ONyMCONDUCT OF LICENSING PROCEEDINGS
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Se eral' times in recent years the Comission has stated that its r ctor licensing receedings should be conducted in a timely fashion.
In e State-ment of, Cons erations which accompanied major revisions to its les of Practice,10 CF Part 2, that were adopted in 1972 the Comi sien said (37 Fed. Reg.15127, J y28,1972):
concerned not only with its [o igation to "The Comission public participating in lic,e sing proceed-the segment of th eneral public --
ings but also with responsibility to the g/s, whether rive at sound decisioJ a responsibility to favorable or unfavorake to any particulafparty, in a timely
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fashion.
The Comissio expressly recocdizes the positive necessity,for expediting he decision =ating process and avoid-ing undue delays.
It exp s that its responsibilities under j
the Atomic Energy Act of 1
, as
' ended, the National Environmental Policy Act of nd other applicable statutes, will be carried out a manner consistent with this policy in the overall pu e interest."
The Sta'tement of General Policy nd Pr edure (10 CFR Part 2 kppendix A) on the conduct of hearings for '. e licensin of nuclear power plants which the Com ission issued in 1972 atates:
"The Statement [of General Policy and Procedure) reflects the Comission'fintent that such prodeedhgs be conducted I
expeditiously. d its concern that its pro'gdures maintain o
sufficient fl xibility to accommodate that objective.
This positi. is. founded upon the recognition \\tha fair-ness to al the parties in such cases and theibligation of admin
- trative agencies to conduct their funttions.with g
effici cy and economy,'yequire that Comission adjudica-tions e conducted without unnecessary delay."
l Me e recently, the Commission has noted (Miscellaneous Amendments to its
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Ru5e of Practice, 43 F.R.17798 and 17801, April 27,1978) that it is "ccmitted!
to developing a ' hearing process which'will produce decisions n a timely fashion" l
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2 pub ic to arrive soun nd referred t
. s "respo ibility to the ge c
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licensing reviews k-e-L'a--
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.g g.e.....% completed and 7.-..,s s... m <--; e the license issued by the time the nuclear plant is ----'r'
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4-:. the first: time, '
-"--; these hearings on a number of power N
, operating license applications may not be complet'ed p':
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construction is completed.
This situation is :: '-direct consequence of the Three Mile Island (TMI) accident, which required a reexamination of the entire r'egulatory structure.
After THI, for a period of over a year and a half, the Commission's attention and resources were focused on plant's which were already licensed to operate and f.d~the preparation of an action plan which specified.e g c,1
<w d':;--:'- ee'4 TliI-related requirements for operating reactors.
Although staff review of pending license applications war delayed during this period, utilities which had received construction permits continued to build the authorized plants.
The staff is now expediting its review of the appl.ications, and an unprecedented number of. board proceedings are scheduled,
for hearing in the next 24 months.
it least half of these proceedings concern applications for.e++.str. ti:: ;;. 't: :-d operating, licenses pursuant to the Atomic. Energy Act, as amended.
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- ' have the potential to delay operation of qualified power plants.
The-;;t:rti.: cost of such delays 'c -- : nz: f:
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The Co=miss on. therefore is issuing this policy statement on the need hsb. nu) for the efficient conduct of all phases 'of the hearing process...,.. ;
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Individual adjudica-
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.l tory boards tre encouraged to expedite f.:,.:..
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using those management methods which presently exist in.Part 2 of the Comis-sion's Rules and RegulatiW.
Virtually all of the procedural devices discussed in this ? Statement are currently being employed by sitting boards to varying degrees.
The Commission's reemphasis of the use of such tools in intended to reduce the time for completing licensing proceedings.
The guidelines se't forth below are not to be considered inclusive, but rather are to be considered illustrative of the actions that can be taken hy individual Boards.]The cc...-
' mission wishes to emphasize though that in expediting the hearings the Board should ensure that the hearings are fair, and produce a record which leads to high quality decisions that adequately protect the environment and the public health and safety.
22ntnAL bu wndCE The Commissien's Rules of Practice. provide the Board with substa ': 1 authe ity.
regulate hearing procedures..In the final anal. s, the actions, consistent with app '-=ble rules, which may be taken conduct an efficient hearing are limited primarily.
the good sa.oe., judgment, and managerial skills of a p' residing board Mich is dedi seo.
seeing that the process moves along at an expeditious pace c.
stent with the dema of fairness.
The boards e reminded that the failure of a par, to comply with any obljgat'. properly imposed in accordance with applicable law Commission
..ulations, without a showing of good cause, may result in impositio f
i GENERAL. GUIDAf;CE (A clarification of the spirit of SECY-81-201A)
The Comission thinks well of Anatole France's jurisprudential observation, "The law. fin its majestic equality, forbids the rich as S
well as the poor to s.leep under bridges, to beg in the streets, and to steal bread."
Boards are comanded to enforce this principle rigorously as it applies,to resource differences among hearing participants.
Capital punishment is not yet feasible, but corporal punishment is not 7
ruled cut.
The Commission hereby removes corporal. punishment from
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Appeal Board review and f'om interlocutory appeal to us.
It may be r
reviewed by us after the fact, subject to the normal " sunk cost" and
" obvious superiority" tests.
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Fairness to all involved in NRC's adjudicatory proceedings re-fulfill its obligations imposed in quires that every participant 1;hile cecordance with applicable law and Commissien regulations.
4 a board'should endeavor to conduct the proceeding i.4 a manner i
that takes account of the special circumstances. faced by any the board shocid assure that this does not result in s& w m.
part3.cipant,% c.s -, o s <J.e; Y r. s.e Jq a-In this connection, the fact that a 5~4 prejucice to cther parties 4 party may have perscnal or other obligations or pcssess fewer resources than others to devote to the proceeding does nou re-of the hearing chiigations that must be met to avoid lieve it
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such prejudice.
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It is the Commissien's v' that against the offending party.
extent neces-sanctions have nc't been imposed in the past to t' O needed.
A sarv to cremote the exc. edition we new be -
,ere is available to the spectrum cf sanctions from minor to s The Boards, in the managem
...'of proceedings.
boards to assist for example, could warn '.
of fending party that such conduct in the future, refuse.to consider a filing will not be tolera*
examine or pre-
.by the.offen.g pa'rty, deny the right to cross-dismiss one or more of the party's contentions, sent e - cence, isose appropriate sanctions en counsel for a party, or, in V
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~ ing a sanction, boards should consider the relative importance of
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the unmat. obligation, its potential 'fo'r ha:6m to oth,er parties or o
the orderly conduct of t}ie proceeding, whether 'its occurrence is
.an isolated incident or a part o a pattern of behavior, and all of the circumstances.
soards should attempt to tailor sanctions to mitigate the harm ' caused by the failure of a party to fulfill its obligations and bring about improved fI:ture compliance.
At a board should make all parties an early stage in the proceeding,
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aware of the Commission's policies in tihis regard.
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Wen the M5.C s'taf f is' responsible for the delay of.a proceeding its cbligations in a t me y fashion the i
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Executive Director for Operations should apprise the Commission of this; and provide an explanation.
This may be dene by separate memora.nda or on a monthly basis in one memorandum covering all This document will be served'on all parties to a proceedings.
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proc'eeding and the board.
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ahropriatesancti s.
In extreme cases, un sa etion may inclu e de al f
th e right to
.oss-examine or presen+ evidence, ism'_ sal of the ffe ding pa.y, o
dismissal.of one or mor of its conte, i. s.
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'6 III.
SPECIFIC GUIDANCE A.
Time
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fundamental ingredient in managing licensing hcb.. oc Le-G.
proceedings is se% ' <<.upN.
ttin. c;; :;ri_ts-time limits. for recuired actions. %e cou s F r'd :;;.:~s t i....~. -... ; ': - ; ' ' n. t !.... c.:....:..; in- -" ' d=14ea +4~e e-->me coy ne,
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h, eyne m a nnneces
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7 '-"ly avie'.
Requests for extension of time should generally be in writing and should be received by the Eoard at ' ::t de- {/
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J.; > before the time specified expires.
B.
Consolidated Intervenors In accordance with 10 CFR 2.715a, ~intervenors should be consolidated and a lead intervenor designated who has "substantially the same interest that may be affected by the proceedings and who raise [s] substantially the same questions Obviously, no consolidation should be ordered that would prejudice the rights of any intervenor.
However, consonant with th71 ce jition, single, lead intervenors should be designated to present evio w.,
- :enduct cross-examination, to submit s
brie'fs, and to propose findings of fact, conclusions of law, and argument.
Where such consolidation has taken place, those functions should not be
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performed 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 inect.aleta.
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'l C.
Necotiation The parties sho"uld be encouraged to negotiate at all times prior to and
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during the hearing to resolve contentions, settle prosedural disputes, and better define issues.. Aa.cr. wgr.o e, f/egotiations should be monitored by the board through written reports, prehearing conferences, and telephone con-ferences, but the boards should not' become directly involved in the negotia-tions themselves.
D.
Board Manacement of Discovery
'The purpos'e of discovery is to expedite hearings by the disclosure of information in the possession of.the parties which is relevan't to the subject matter involved in the proceeding so thatg:fLd]!A_ issues may be narrowed, stipulated, or eliminated and evidence to be presented at hearing can be stipu-lated or otherwise limited to that which is relevant.
The Cu...aission is con-skm t cerned that disce[very not delay hearing 3,tt.. ;.3..
discovery uc :...
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Accordingly, the Boards should manage and supervise all discovery, including not only the. initial discovery direct 1y f,ollowing admissior of
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contentions, but also any discovery conducted thereafter.. The Commission reindorses the policy of voluntary discovery, and encourages the Boards, in consultation with the parties, to establish time frames for the completion of.both voluntary and involuntary discovery.
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6 Each individual Board shall 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
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conferences on the3 record.
In virtually all instances, individual Boards should schedule an initial conference with the parties to set a general discovery schedule immediately after' contentions have been admitted.
E.
Settlement Conference Licensing Boards are encouraged to' hold settlement conferences with the parties.
Such conferences a're to serve the purpose of resolving as many cen-tentions as possible by negotiation.
The ccnference is intended to:
(a)have r
ths parties identify those cententions no lenger censidered valid or important by their sponsor as a result of information generated through dis-covery so that such contentiens can be eliminated frca the proceeding, and (b) to have the parties negotiate a resolution, wherever possible, of all or part of. any contention still held valid and important.
The settlement con-ference is not intended to replace the prehearing conferences provided by 10 CFR 2.751a and 2.752.
F.
Timely Rulinas on prehearina Matters The Licensing Boards should issue timely rulings on all matters.hf:r:
-4+r In particula r, *ti=+2.y. rulings shculd be issued on crucial or potentially dispositive issues at the ear.liest practicable juncture in the proceeding.
.Such rulings may eliminate the need to adjudicate one or more subsidiary issues.
Any ruling which wculd affect the scope of an avidentiary preser)tation should i pt_ % b b:ff ni ;.
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In other words, a board should issue timely w '. J m i, 6 w....
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rulinrs on questions of fact and law to define the issues jn, controversy in as 4 specific ~a manner as is justified.
Rulings on procedural matters tc
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If a significant legal or policy question is presented on which Commis-i sion guidance is needed in order to prevent detriment to the public interest i
.or expense, a board should promptly refer or certify the matter to the Atom c Safety and Licensing Appeal Board or the Commission :.: :.;;::;rn t:. 9he-l t t:
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A board should exercise its best judgment to try.to anticipate crucial issues which may require such guidance so that the l
reference or certification can be made and the response received without holding up the proceeding.
G.
Summary Discosition In exercising its authority to regulate the course of a hearing, the Boards should encourage the parties to invoke the summary disposition procedure on issues where there is no genuine issue of material fact so that evidentiary l
hearing time is not unnecessarily devoted to such issues.
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H.
Trial Briefs, Prefiled Testimony Outifnes and Cross-Examination Plans All' or any combination of these devices :hould be required at the discretion >
I of -the Board to expedite the orderly presentation by each party of its case.
The Co.ission believes that cross-examination plans,.which are to be submitted to the Board alone, would be of benefit in most proceedings..
Each Board must decide
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which device er devices would be most fruitful in managing or expediting its proceeding by[wddAT.2vlimiting
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- ? : :-f unnecessary direct oral testimony and cross.-examination.
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Cembininc Rebuttal and Surrebuttal Testimony For particular, highly, technical issues, Ecards are enceuraged during rebuttal and surrebuttal to put cpposing witnesses on the stand at the same time so that each witness will be able to comment immediately on an opposing witness' answer to a question.
Appendix-A to 10 CFR Fart 2 explicitly reccg-nizes that a board may find it helpful to take expert testimony from witnesses en a roundtable basis after the receipt in evidence of prepared
' testimony.
J.
Sua Socnte Raisinc cf Issues by Ecards
[To be prepared follcwing Commission discussion.]
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- 4es should be expected to file prepcsed findings cf fact and c--
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of law cn issues wn.s.. 'he have raised.- The Boards, in ".. r discretien, may refuse to rule en an issue in thel
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..isien if the party raising the issue has not filed -proposed fN ngs of fact ano
-li sions of law.
In draf t-e.
ing initial decisi Boards are encouraged to. adopt proposed T...:'-as as l
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..uly as they deem appropriate.
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Initial Decisiens Licensing proceedings vary greatly in the difficulty and ccmplexity of issues to be decided, the number of such issues, and the size of the record
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compiled.
Tnese factors bear on the length of time it will take the Boards to issue initial decisions.
The Commission expects that decisions nov.nly i
will continue to be cf.'.is,_
't;g but also that decisionsyssue as soon as practicable after the submission of proposed firidings of fa'ct and conclusions Ok of law to insure that facilities, if qualified, are licensed t' :::: :-:- they are ready to operate.
Accordingly, the Chief Admininstrative Judge of the Atomic Safety and Licensing Scard Panel should schedule all Board assigre.ents so that after the record has been completed individual Board members are free to write Initial Decisions on those applicatidns where construction has been completed.
Issuance of such decisiens should take precedence over other respcnsibilities, f,
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l For the Com.ission SAMUEL J. CHILK Secretary of the Comission Dated at Washington, D.C.
.this day of
, 1981.
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