ML19345H276
| ML19345H276 | |
| Person / Time | |
|---|---|
| Issue date: | 03/31/1981 |
| From: | Bickwit L NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML19345H275 | List: |
| References | |
| REF-10CFR9.7, RULE-PR-2, TASK-RIA, TASK-SE SECY-81-111A, NUDOCS 8105010467 | |
| Download: ML19345H276 (35) | |
Text
,
7,
-... ~.,,...-n,..
,,,,. c ;...
- .., y...y ;. -.....
.....p This papr hn han revisar
[
8 REVSED g~g 7 i3 S
h,,h [ j E
SECY-81-111A March 31, 1981 w
RULEMAKING ISSUE (Affirmation)
For The Commission From:
Leonard Bickwit, Jr.
General Counsel
Subject:
INTERVENTION IN NRC ADJUDICATORY PROCEEDINGS Summary:
When it approved SECY-81-lll, the Commission directed OGC to study the draf t rule that would raise the threshold for contentions and to recommend whether the rule should be the subject of rulemaking.
The Commission also i
asked for an assessment of the time and resources that could be saved by the draft rule, with references to specific cases.
OGC has completed the study, made several changes to the draft rule, and consulted the staff and adjudicatory boards.
Attached is a revised draft rule (Attachment 1) which we i
believe is suitable for rulemaking.
We found no consensus among the persons reviewing the draft rule as to its consequences, if implemented, for the licensing process generally or for the Commission's particular objective to reduce hearing and prehearing time and resources for unworthy issues.
However, we found no one who disputed that the hearing process is distracted by insubstantial centroversies, that this distraction does not serve the public interest, and that Commission action of some kind is appropriate.
CONTACT:
C.W. Reamer, OGC 634-1493 I
8305010
= _ _ __=_____-_____- -
l' O
+
<~
2 Discussion:
The draft rule would require a person seeking to intervene and participate as a full party in a hearing to show, as to each contention, that an evidentiary hearing is needed to resolve a genuine issue of material fact.
This requirement would overrule, in effect, the Allens Creek intervention decision ( ALAB-590, 11 NRC 542, 548 (19 80 ) which, on the' basis of established practice, admitted a contention on marine biomass that was subsequently dismissed for want of a material factual dispute (ALAB-629, 13 NRC (February 2, 1981)).
Under the draft rule, a prospective intervenor would need to offer some evidence at the contention stage of the proceeding which supported his concern.
The extent of the required showing is daat which would lead reasonable minds, technically trained, to inquire further.
There is no " genuine issue of material fact" if, as to a contention or a critical element thereof, the prospective
/
intervenor makes no such showing.
In evaluating a petitioner's showing against this standard, licensing board technical members would take due account of generally accepted scientific and' engineering principles.
A contention which failed to satisfy the requirement would not be admitted unless there was a reasonable likelihood that an issue of fact could be developed.
The " reasonable likelihood" language would provide an escape hatch from the issue-of-fact requirement in order to account for intervenors who have a genuine need to rely on discovery to develop the facts of their case.
However, the escape hatch would close -
following discovery, at which time the intervenor would need to show an issue of fact to avoid having the contention dismissed.
m.
-- - -==-~~-=- - *---= ** - - - ' " - - ' * * * - - - - ~ ~
'--~ ~~""**~~~~*~~~
e - -, -
w-w-
s 3
The mechanics, basis and legal considerations of the draft rule are more fully set out in Attachment A.
A discussion of the principal issues follows.
1.
Does the draft rule accurately target the perceived problem?
As we understand the Commission's concern, it is that time and money are being wasted in the hearing and prehearing process on frivolous issues, at the possible expense of focus on important matters.
One view is that this situation is epitomized by Allens Creek.
The marine biomass contention was eventually dismissed from the proceeding, but not without the cost to the parties and the hearing boards of summary dispositiono The draft rule seeks to avoid this cost by advancing the time for the required showing of an issue of fact sufficient to obtain an evidentiary hearip.g and by r
imposing this burden on Ehe would-be intervenor.
Another view is that licensing hearings should be altered to concentrate on important issues even if, as to less important ones, questions of fact are' raised.
NRC intervention practice already requires a petitioner to state, when he submits a contention, how it is material to the licensing action at
- issue, i.e.,
to be prepared to explain how his concern is of possible significance i
to the proposed action.
We did not discover a permissible means in our study to eliminate contentions that raise unimportant issues other than the present requirement of materiality.
2.
Should a " reasonable likelihood" escape hatch be included in the rule?
The draft rule requires a showing of an issue of fact, but a would-be intervenor can postpone the showing until after
s l
4 (N
discovery if he can show a reasonable likelihood that discovery will produce the facts needed for petitioner's case.
OELD correctly observes that greater savings would be possible if the escape hatch were dropped from the rule and that the savings which the draft rule can otherwise provide may be lost because of the escape hatch.
We have sought to counter this possibility through guidance in the statement of consideratichs that the board must find a substantial chance that discovery will be useful.
The board is to exercise its judgment and experience in making this finding.
a l
t
s 5
3.
Will the draft rule save time and money?
The draf t rule's savings benefit would arise from (1) fewer footless contentions being submitted, and (2) earlier dismissal of contentions not warranting an evidentiary hearing.
However, the rule is likely to transform the cont'ention phase of a licensing proceeding into an inquiry as to contentions Unat would consume much more time and resources of the parties and adjudicatory boards.
This led several people reviewing the draft rule to conclude that any savings under the rule are totally unclear.
Nonetheless, some savings seem clearly possible because of the substantial time entailed in litigating a contention or resolving it through summary disposition.
ELD roughly estimates that as much as 30-40 days of hearing time was spent in the Susquehanna proceeding on contentions that arguably might not survive under the draft rule.
Comparable time may be spent in Allens Creek on contentions that arguably might fall under the draf t rule.
If the marine biomass contention in Allens Creek had been dismissed at the outset, approximately 3-5 weeks of staff time in preparing summary disposition papers would have been avoided.
' These figures are rough and, further, do not reflect the increased time that might be necessary because of a greatly expanded contention phase in a proceeding.
4.
Should greater use be made of the technical members of the boards under the draft rule?
Several who reviewed the draft rule suggested that the Commission should consider opening the way for technical members of the licensing boards to exercise a greater degree of technical judgment in decisions on
4 l
6 whether to admit contentions.
The draft rule does not incorporate this suggestion in that, under the rule, decisions on the merits of contentions are to be made on the basis of the information submitted.
However, members would be free to resort to generally accepted scientific and engineering principles in determining whether a petitioner demonstrated a genuine issue of fact, (i.e.,
whether petitioner's showing is sufficient to lead reasonable minds to inquire further).
Legally, more latitude probably can be afforded technical members of the boards at the contention stage of a proceeding because it centers on whether a hearing is required on a petitioner's contention.
The initial agency determination whether a hearing is required by statute need not be "on the record" under the Admin-istrative Procedure Act.
See Weinberger
- v. Hynson, Westcott & Dunning, 412 U.S.
609, 622 n.19 (1973).
Under the APA, the legal bounds associated with agency determinations that are not "on the record" generally afford agency officials greater freedom to exercise expertise and judgment in decisionmaking.
- However, the contention phase may not legally be turned into a substitute for an evidentiary hearing as the proper means to resolve-contested issues of fact in nuclear licensing cases.
The outcome of affording technical members of licensing boards greater freedom for technical judgment than the draft rule would provide does not necessarily mean that their views on the technical merit of a contention will ultimately prevail.
The appeal board and the Commission can review board decisions, and the scope of their reviews could be p-' scribed to be eidner broad
(
{
l
=+e
======m-
++m
.e me==
m pi.
w
-e--=.
.um.-
e.,m.e
=.
e
^+ +
e
7 (i.e., reviewer may exercise its own technical judgment) or narrow (i.e.,
reviewer may correct only abuses of discretion as, for example, in the case of director's decisions under 10 CFR 2.206).
On the one hand, if the scope of review to be-imposed on such judgments is broad, the'n the technical ' judgment that prevails would be that of the last technical person on a board or the Commission to review the contention.
Such a review system could demoralize some licensing board members and give the appearance of arbitrariness to the decision as to a particular contention.
On the other hand, if the scope of review is narrow, the judgment of board members will receive greater weight, but such deference could insulate the Commission (and the appeal board) from important questions about when nuclear licensing hearings are to be held.
Recommendation:
Approve Attachment 1 for proposed rulemaking.
\\
DISTRIBUTION
( f3,e4si
<~
Comissioners Comission Staff Offices t
Exec Dir for Operations Leonard Bickwit, Jr.
~
ACRS General Counsel ASLBP ASLAP Secretariat
Attachment:
1.
Draf t Notice of Proposed Rulemaking 2.
Memo dated 3/25/81 to A.
Rosenthal, ASLAP 3.
Memo dated 3/27/81 to J. Frye, ASLBP Comissioners' coments or consent should be provided directly to the Office of the Secretar; by c.o.b. Wednesday, April 15, 1981.
Comission Staff Office coments, if any, should be submitted to the Comissioners NLT April 8, 1981, 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 coment, the Comissioners and the Secretariat should be apprised of when coments may be expected.
This paper is tentatively scheduled for affinnation at an Open Meeting during the Week of April 20, 1981. Please refer to the appropriate Weekly Comission Schedule, when published, for a specific date and time.
g
,9
'4
.4 O
[
/
s P00RDiliniUR ATTACHMENT 1
I
'~~~
e=
.mm
m NUCLEAR REGULATORY COMMISSION
[10 CFR Part 2]
Proposed Amendments to the Rules of Practice for Domestic Licensing Proceedings AGEFCY:
Naclear Regulatory Commission ACTION:
Notice of Proposed Rulemaking and Request for Public Comments
SUMMARY
The Nuclear Regulatory Commissioil is proposing to amend 10 CFR 2.714 concerning intervention in fomal NRC hearings.
Comments are reque'sted on the amendment which would require persons seeking intervention to show an issue of material fact as a prerequisite to requesting or participating in a hearing.
DATES:
Comments received after April _, 1981 [30 days from publication]
1 will be considered if it is practical to do so, but assurance of consideration cannot be given except as to comments submitted on or before April 1981 [same date].
Submit comments to the Secret' ry of the Commission, U.S. Nuclear ADDRESS:
a Regulatory Commission, Washington, DC, 20555.
Attention: Mr. Chase R.
Stephens, Chief, Docketing and Service Branch.
Copies of comments received on the proposed amendment will be available for examination at the NRC Public Document Room,1717 H St. N.W., Washington, D.C.
FOR FURTHER INFORMATION CONTACT:
C. W. Reamer, Office of the General Counsel (202-634-1493).
SUPPLEMENTARY INFORMATION:
Fomal administrative hearings are always conducted by NRC as part of its proceedings on applications for construction 7
2 permits for nuclear power plants and frequently on applications for operating licenses and license amendments.
10 CFR Part 2 of the Commission's Rules and Regulations provides for a trial-type hearing fonnat.
Any member of the public whose interest may be affected by the proceeding is entitled to participate in NRC hearings under 10 CFR 2.714 and section 189a of the Atomic Energy Act (42 U.S.C. 2239a).
The Commission is concerned that its present adjudicatory process is not satisfactorily serving the public's interest in efficient resolution of nuclear plant licensing issues.
See 46 Fed. Reo.
(March 18,1981).
Trial-type hearings are generally acknowledged as best-suite'd for the resolution of contested factual issues.
Thus, one means to more efficient decisionmaking is to reduce the possibility that time and resources may be expended by the parties and hearing tribunals in a proceeding on issues that do not involve material factual disputes.
To this end, the proposed l
amendment seeks to relate the Commission's rules on intervention (10 CFR l
l 2.714) more clearly and directly to the fact-oriented character of NRC licensing hearings.
Under the proposal, persons who petitica to intervene and request a hearing would be required to show at the outset some evidence of a genuine issue of material fact.
For purposes of this rule, an issue i
regarding application of expert opinion to a set of facts would be regarded l
as an issue of fact.
The Commission official designated to rule on intervention questions could dismiss any petition, request, or contention that could be l
determined not to raise an issue of fact suitable for resolution in a formal hearing.
1.
The Present System.
A nuclear power plant licensing proceeding may be commenced before NRC by the filing of an application or order to show cause.
NRC publishes a notice of hearing (10 CFR 2.104) or notice of opportunity for hearing (10 CFR 2.105(a)), as appropriate.
r r:
3 n
An interested member of the public may file'a petition to intervene in the proceeding and/or request a hearing.
The A+.omic Energy Act of 1954, as amended (42 U.S.C. 2239a) provides that "the Commission shall grant a hearing upon the request of any person whose interest may be affecte.1 by the proceeding, and shall admit any such person as a party to such proceeding."
Commission rules for intervention (10 CFR 2.714(b)) further provide that a person who petitions to intervene in a proceeding must later submit "a supplement to his petition to intervene which must include a list of contentions which petitioner seeks to have litigated... and the bases for each contention set forth with reasonable specificity." To participate as a party, the petitioner must advance at least one contention that satisfies this requirement.
The requirement of a list of contentions serves as the mechanism by which a would-be intervenor informs the parties to the proceeding and the hearing tribunal of the issues upon which he wishes to be heard.
The list of contentions, in turn, crystallizes the question whether such issues are germane to matters properly within the scope of the proceeding l
as set out in the notice of hearing or notice of opportunity for h' earing.
Admitted cententions are included as matters in controversy in a proceeding l
and, thus, govern the scope of administrative discovery under 10 CFR 2.740(b)(1).
Under present practice, the Commission official designated to rule on intervention questions examines each contention to determine whether (i) the contention is stated with the requisite specificity, (ii) the basis is adequately delineated, and (iii) the issue sought to be raised is cognizable in an individual licensing proceeding.
Alabama Power Co. (Joseph M. Farley l
Nuclear Plant, Units 1 and 2), ALAB-182, 7 AEC 210, 216-17 (1974).
l
4 e
The examination is limited to what appears within the four corners of the contention as stated.
No inquiry is to be made into the merits of the contention.
All that is required is that the petitioner " state his reasons (i.e., the basis) for his contention...." Houston Lighting and Power Co.
(Allens Creek Nuclear Generating Station, Unit 1), ALAB-590,11 NRC 542, 548 (1980).
The petitioner is under no obligation to demonstrate the existence of some factual support for a contention, as a precondition to its acceptance under 10 CFR 2.714.
That obligation arises later in the proceeding, either in opposition to a motion for summary disposition filed by another party (10 CFR 2.749) or at the evidentiary hearing.
ALAB-590 supra, 11 NRC at 549-51.
As a consequence, the requirement of a list of contentions, as now applied by the Commission, does little to determine whether an evidentiary hearing is needed to resolve issues of material fact.
Yet, there can be no substantial doubt that contested evidentiary hearings on nuclear power plant licensing can and, as a general rule, should focus on factual questions and, as to intervenor claims, the specific facts place'd in issue by intervenor contentions.
Summary disposition of a contention, without an evidentiary hearing, is pennitted when the moving party can demonstrate no genuine issue of material fact.
See 10 CFR 2.749.
However, summary disposition depends upon the initiative of the parties to the proceeding.
Summary disposition can also entail a substantial expenditure of time and resources on the part of the parties and hearing tribunals.
The amendment to the Commission's rules of practice proposed in this notice would structure a process for screening i
i contentions when submitted, and would place on a member of the public seeking to participate in a hearing the additional burden of showing the l
l need for the hearing on petitioner's contentions (i.e., the burden of i
l offering some evidence of an issue of material fact).
5 C
2.
Right to Hearing and Admission as a Party.
The Commission believes that the proposed rule would not unlawfully restrict the public participation rights provided by the Atomic Energy Act of 1954 (42 U.S.C.
2239a) or the Administrative Procedure Act (5 U.S.C. 554-557).
The proposed rule is intended to curtail participation in hearings only in instances when a potential intervenor can show no issue of fact in support of his request for hearing and, thus, no reason for an evidentiary hearing on the matter.
Under such circumstances, the time and resources expended on such
" issues" cannot be justified.
There is no absolute or unconditional right to intervene, or receive a hearing, in a nuclear power plant licensing proceeding under the Atomic Energy Act.
BPI v. Atomic Energy Commission, 502 F. 2d 424 (D.C. Cir.
1974).
Section 189a of the Act which provides for hearings is subject to the Commission's rulemaking p.wer under section 161p and, thus, to reasonable procedural requirements designed to further the purposes of the Act.
~
BPI v. Atomic Eneray Commission supra, 504 F. 2d at 427, 428; See also American Trucking Ass'ns., Inc. v. U' ited States, 627 F. 2d 1313,1320-23 n
(D.C. Cir.1980).
Furthennore, a hearing under section 189a is explicitly conditioned upon a " request." The proposed amendments would, in effect, l
provide that a proper request by a member of the public for an evidentiary, trial-type hearing on an issue shall include some showing of the need for such a hearing.
Finally, the Administrative Procedure Act creates no independent right to a hearing in nuclear licensing proceedings.
See Easton Utilities Commission v. Atomic Energy Commission, 424 F. 2d 847, 852 (D.C. Cir.1970) (en banc); cf. National Coal Ooerators' Assn. v. Kleppe, 423 U.S. 388, 398-99, 46 L. Ed. 2d 580, 96 S. Ct. 809 (1976) (statutory words " opportunity for hearing" may be keyed to a " request").
6 A requirement that a person requesting an administrative hearing bear the
.o burden of demonstrating the need for an evidentiary hearing by offering some evidence of an issue of fact is not unusual.
Regulations of the Environmental Protection Agency governing the availability of evidentiary hearings in proceedings on NPDES pennits provide that a request shall be
)
granted if it " sets forth material issues of fact relevant to the issuance 6
of the pennit."
40 CFR 124.74(a)(1).
Similar regulations were upheld by a unanimous court in Costle v. Pacific Legal Foundation, 445 U.S.198, 63 L.
Ed. 2d 329, S. Ct.
(1980), notwithstanding the strong congressional-policy supporting public participation in water pollution control decisions.
l The District of Columbia Circuit sustained an order of the Federal Reserve Board which denied a hearing to a requestor who "ha[d] not given reason l
to believe a hearing would be worthwhile."
Connecticut Bankers Assn, I
- v. Board of Governors, 627 F. 2d 245, 251 (D.C. Cir.1980) (petitioner need f
l act make detailed factual allegations to meet the requirement that he raise
" issue of material fact," but he does not become entitled to evidentiary hearing merely on request, or on a bald or conclusory allegation that such a disput.e eicists),
l A related line of Supreme Court cases recognizes that "the statutory requirement for a hearing... does not preclude the Commission from particularizing statutory standards through the rulemaking process and barring at the threshold those who neither measure up to them nor show reasons why in the public interest the rule should not be waived."
Federal Power Commission
- v. Texaco, 377 U.S. 33, 39,12 L. Ed. 2d 112, 84 S. Ct.1105 (1964).
This line of authority was applied in Weinberger v. Hynson, Westcott & Dunning, 412 U.S. 609, 620, 37 L. Ed. 2d 207, 93 S. Ct. 2469 (1973), to uphold FDA rules which denied a fonnal hearing to an applicant "where it is apparent at the threshold that the applicant has not tendered any evidence which
._ on its face meets _ the statutory. standards _ as. particularized by the regulations"
9 7
O The Commission believes there is some possibility that, while lawful, the proposed rule, if adopted, could unintentionally reduce useful public participation in nuclear licensing proceedings.
If the rule works as intended, the time and resources expended by all parties to a licensing proceeding should more directly correlate to a satisfactory hearing because the hearing will be more closely drawn to issues of fact.
By definition and by design, the elimination of contentions under the rule will improve the hearing product and reduce the drain on the time and resources of the parties and the hearing tribunals.
However, some intervenors who must rely on discovery to prove their case may not be prepared to satisfy.the threshold burden when they submit their contentions.
The NRC official authorized to rule on intervention questions may take this circumstance
(
into account, as more fully set out below, through the language in the proposed amendment that permits a contention to be admitted when there is "a reasonable likelihood that an issue of material fact can.be developed in the course of the proceedings."
Further, the Commission ha's the power, through its authority to review particular licensing decisions (10 CFR l
l 2.786), to ensure that the rule is not misapplied so as to reduce useful l
l public participation in licensing proceedings.
3.
Mechanics of the Proposed Rule.
Under the proposed rule, an
~
l interested person petitioning to intervene in an NRC licensing proceeding and requesting a hearing must show some evidence, as to each of his contentions, establishing the existence of an issue of material fact.
No contention would be admitted for hearing without this threshold showing, unless there l
l
~.
8
(~ '
existed a reasonable likelihood that such an issue could be developed through prehearing discovery in the course of the proceeding.
The petitioner's burden of tendering evidence suggesting the need for an evidentiary hearing is not intended to be the equivalence of a prima facie case, but mere assertion or conclusory allegation that an issue exists would not suffice.
The showing must be sufficient to cause reasonable minds to inquire further.
Thus, the Allens Creek decision (ALAB-590 supra, 11 NRC 542,) and the cases cited therein (11 NRC 549 n.10) would be effectively overruled by the proposed amendment.
t The NRC official authorized to rule on intervention matters, or any party to the proceeding, may contest the claim that an evidentiary hearing is needed to resolve an issue of fact, in which c.ase the person seeking the hearing would be afforded a reasonable opportunity to respond.
The ruling NRC official will consider all the information submitted before deciding whether to admit the issue for hearing.
However the official would not undertake s
to resolve factual disputes at this stage of the proce.eding, and he would not admit a contention if it appeared from the information submitted, that l
an evidentiary hearing was warranted.
If no party contests the existence of a genuine issue of material fact with -
respect to a particular contention, the ruling NRC officia', will evaluate the statements and information submitted by the petitioner and will refuse to admit any contention as to which petitioner has failed to tender some l
l evidence suggesting the need for an evidentiary hearing.
The official may 1
rely on generally accepted scientific and enginecring principles in making his detennination, and will refuse to admit a contention which is not t
~.
9 reasonable or credible in light of such principles.
However, no contention shall be denied on the basis of such principles without first affording petitioner an opportunity to demonstrate the contrary.
If an intervenor claims that evidence showing the existence of an issue of fact can only be elicited through prehearing discovery ~ the ruling NRC official may, after taking due account of the character of the issue and other pertinent matters, provisionally admit the contention when he finds, on the basis of the information submitted, that there is a reasonable likelihood that an. issue of material fact, as to that contention, can be developed.
The purpose of pennitting contentions to be admitted provisionally is to provide the ruling NRC official with the authority to allow discovery as to a particular contention when, in his judgment, there exists a substantial possibilii.y that, following such discovery, petitioner will be able to show the existence of the requisite issue of fact and need for a hearing.
- Thus, the ruling NRC~ official will require, and will evaluate in light of his experience, some explanation of why petitioner believes that the opportunity for discovery holds the real chance to develop an issue of fact.
The i
ruling official will provide, at the time he admits a contention on a provisional basis, that the contention and the documents and information relating to it will be reexanined at a specified future date, following a l
reasonable opportunity for discovery but prior to any hearing.
i At the time a provisionally admitted contention is reexamined, the petitioner' must come forward with some evidence establishing the existence of an l
issue of material fact.
At such time, a party may oppose the admissibility
10
/'
of a provisionally admitted contention.
The ruling NRC official will, after affording the person seeking the hearing a reasonable opportunity to respond to such opposition if any, decide to admit or deny the contention on the basis of whether the information submitted demonstrates the existence of a material issue of fact.
This procedure would apply only to contentions as to which there has been no satisfactory threshold showing of an issue of material fact.
Prior to ruling on the admissibility of a contention, the NRC official is free to pemit opportunity for a person seeking a hearing to meet with the NRC staff fcr the purpose of exploring the need for an evidentiary hearing and developing infomation showing the existence of an issue of material fact.
An intervenor raising only legal or policy arguments not raising an issue of fact, but otherwise cognizable in a licensing proceeding, may be admitted under 10 CFR 2.714 for the limited purpose of submitting a brief and participating in oral argument if it is deemed appropriate.
In applying the provisions of the proposed amendment, the Commission will take into account the dual NRC policies that (i) the primary purpose of evidentiary hearings is to develop a record for the resolution of issues of material fact, and (ii) the primary purpose of intarvention in NRC licensing l
proceedings is to assist the Commission in making sound licensing decisions in accordance with the public objectives of the Atomic Energy Act and the National Environmental Policy Act.
The NRC official authorized to rule on l
l intervention matters will resolve significant doubts about the proper disposition of a contention in a particular case in favor of public participation and further proceedings, making free use of the procedure for provisional i
admission of contentions.
l
11 REGULATORY FLEXIBILITY ACT:
In accordance with the Regulatory Flexibility Act of 1980, 5 U.S.C. 605(b), the Commission hereby certifies that this rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.
This rule affects the Commission's rules of practice and procedures by permitting expedition of the licensing process.
PROPOSED REGULATION CHANGES:
Pursuant to the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and section 553 of Title 5 of United States Code, notice is hereby given that the following amendments to Title 10, Chapter I, Part 2, Code of Federal Regulations, are contemplated:
1.
Redesignate 10 CFR 2.714(b) as 10 CFR 2.714(b)(1) and insert after the first sentence and before the remaining sentences thereof the following new seritence:
The supplement must set forth a concise statement of the facts supporting each contention together with references to the written documents and other information relied upon to show the existence of such facts.
2.
Insert at the end of the redesignated 10 CFR 2.714(b)(1) the fci q
new paragraphs:
5 12 (2) A party may, as to a particular contention of a petitioner, contest the existence of a genuine issue of material fact and, in such event, shall submit a concise statement of the material facts which it contends cannot be genuinely disputed, together with references to the written documents and other information upon which it relies.
(3)
If a party contests the existence of an issue of material fact, with respect to any contention, or if it is determined by the presiding officer, in the absence of such a contest, that petitioner has not demonstrated an issue of fact, petitioner shall be afforded a reasonable opportunity to submit additional written documents or other information to show that a genuine issues of material fact exists.
(4) A contention shall not be admitted for hearing if the documents and other information submitted fail to demonstrate that there is a genuine issue of material fact to be heard.
(5)
A contention shall be provisionally admitted if the documents and information submif.ted, while failing to show an issue of material fact, demonstrate that there is a reasonable likelihood that additional facts can be developed in the proceeding which will show the existence of such an issue.
When a contention is provisionally admitted, a date following discover 7 but before any hearing on the contention shall be prescribed at which time petitioner shall be required to submit the statement of facts and supporting documents and information required by paragraph (1).
t, 9
D 1
4 -
a i
l I
l J
m 4
0 4
6 4
l J
l I
s e
i
'f
.)
e t
d i
h
- r s.
t 4
1 d
l i
l r
1 i
\\
e l
l l
l.
s
\\ s.
g
_)
9 l
s tr f
I
~~--c-,., -,,,., - _,. _,,, _, _,__ _,_
, [$NUvgI9,,
UNITED STATES g
g NUCLEAR REGULATORY COMMISSION
- L E
ATOMIC SAFETY AND LICENSING APPEAL PANEL yyg WASHINGTO N, D.C. 20555
)
March 24, 1981 MEMORANDUM FOR: James A. Fitzgerald Office of the General Counsel k/
FROM:
John H. Buck, Vice Chairman 7,e[(
Atomic Safety and Licensing Appeal Panel
SUBJECT:
YOUR REPORT TO THE COMMISSION ON THE ADMINISTRATIVE JUDGES' CONCERNS ARISING OUT OF ALAB-590 My comments are limited to your discussion of the adminis-1.cative judges' opinions on pages 5 and 6 of the report.
First, you mention the " concern among the judges about the nature of the role the Commission-intends its adjudicatory boards to play in dealing with public participants and the feeling among some of the judges for the need of more guidance by the commiss1on."
I believe this concern is justified.
In the Atomic Energy Act, Section 191a states in part that:
- - - the Commission is authorized to establish one or more atomic safety and licensing boards, each comprised of three members, one of whom shall be qualified in the conduct of administrative pro-ceedings and two of whom'shall have such technical or other qualifications as the Commission deems appropriate to the issues to be decided, to con-duct such hearings as the Commission may direct and make such intermediate or final decisions as the Commission may authorize - -
This puts no limit on where in the hearing process the technical members should begin to exercise their judgment.
If ALAB-590 is_
maintained technical members essentially will be allowed no judg-ment as to the permissibility of any contentions.
If the con-tentioris are legally permissible, that is, fulfill the require-
__W%O,R@ChWNm
- 34mp}.iness, and are presented by a party
,ments of_specifh;ig g
' ^,.
R he contention must be accepted.
This lembers to sit helplessly by while the DUPLICATE DOCUMENT yhe intervenors present testimony on itions.
(This has already taken place Entire do.:ument previously LM3-590).
entered into system under:
(1 ANo
%Iaidal02LY
^
I N o. of pages:
[
k s
..j-fj
.. ~. _,,, _ _ _,,
puer o,,
UNITED STATES g.
g NUCLEAR REGULATORY COMMISSION j
ATOMIC SAFETY AND LICENSING APPEAL PANEL WASHINGTON, D C. 20555 March 25, 1981 MEMORANDUM FOR:
C. W. Reamer Office of the General Counsel FROM:
Alan S.
Rosenthal, Chairman Atomic Safety and Licensing Appeal Panel
SUBJECT:
INTERVENTION IN NRC ADJUDICATORY PROCEEDINGS This is in response to your March 19, 1981 memorandum, and the attached notice and proposed rule, on the above-styled subject.
In addition to my own comments which immediately follow, I am transmitting to you herewith (1) Dr. Buck's memoranda; and (2) Ms. Kohl's comments (in the form of notations made on the notice and proposed rule themselves).
A.
I certainly agree, and have often said so in decisions i
and elsewhere, that it is neither necessary nor desirable to devote hearing time to insubstantial contentions.
For this reason, I -- as well as my Appeal Panel colleagues -- have en-couraged greater resort to the long-established summary disposi-l tion procedure for 'the purpose of veeding out such contentions at a prehearing stage.
I As I understand the principal effect of the draf t amend-l ments, the merits of a particular contention would be open to l
examination at an earlier time than under now-prevailing prac-tice.
No longer would the contention be admitted to the pro-ceeding irrespective of its possible merit, subject to later summary disposition if found not to present a genuine issue of _
material fact.
Rather, the contention would not be admitted at all unless its proponent first established to the Licensing l
Board's satisfaction either (1) the existence of a genuine issue of material fact respecting the substance of the conten-7,
- 7..,
,. y.~?kelihood that facts could be devel-4 which would demonstrate the exist-l n ^1-.
L 3L_ -
1 s l
DUPLICATE DOCUMENT 4
Entire document previously 3
entered into system under:
1 l3 l0 f.lQ $0be AO l
b ANO
{l 9
No. of pages:
Q
$ L M m m 1 d i. i [ A U E E L w
Sa aerug'o UNITED STATES g
[,
g NUCLEAR REGULATORY COMMISSION t
gj ATOMIC SAFETY AND LICENSING APPEAL PANEL
%,yff f WASWNGTON. D.C. 20555 March 24, 1981 MEMORANDUM FOR: C. W. Reamer Office of the General Counsel FROM:
John H. Buck, Vice Chairman
,/ /4'~
Atomic Safety and Licensing n
v Appeal Panel
SUBJECT:
REVISIONS TO 10 CFR 2.714 j
I have reviewed the proposed revisions to 10 CFR 2.714 and find myself in agreement with those revisions.
- However, as I have pointed out to Mr. Fitzgerald (see attached copy of my. letter t.o him) I believe that further Commission guid-ance to the licensing boards is needed.
Many of the contentions admitted to a proceeding should be handled by rulemaking because they are likely to be con-sidered over and over again in many proceedings.
On the other hand other contentions which are both legally and technically viable, are of very minor importance as to whether a license should be granted.
All such contentions can cause the hearing to deteriorate into a game of tedious trivia.
Cross-examination in these areas is usually unfocused and likely to be inordinately lengthy.
The boards are obviously reluctant to limit argument on these items without strong Commission guidance to focus on the major safety and-environmental issues of concern to the specific reactor.
The revised 10 CFR 2.714 (b) (1) is the first step but further Commission guidance to the licensing boards is necessary.
Attachment-As stated cc:
James A. Fitzgerald C"/"
fid%2/fl4$/
t UNITED STATES y
NUCLEAR REGULATORY COMMISSION UI 5
ATOMIC SAFETY AND LICENSING BOARD PANEL W ASHIN GToN, D.C. 20555 s
f March 27, 1981 MEMORANDUM FOR:
C. W. Reamer, OGC I
FROM:
e S-Trye III, ASLBP
SUBJECT:
INT RVENTION IN NRC ADJUDICATORY PROCEEDINGS This is in response to your Note of March 19 on the above subject.
The Panel has reviewed the draft proposed amendment to $ 2.714.
While no Panel Member voiced objection to these amendments, some members furnished the following observations:
The proposed changes provide considerable leeway to the boards 1.
in determining whether issues of fact exist with respect to a particular contention.
2.
The provision which permits contentions to be admitted provi-sionally if it appears that an issue of fact might be developed could turn out to be a large " loophole." If so, it is doubtful that present practice would be changed significantly.
i 3.
The purpose of the proposed amendments might be better accom-plished by providing simply that contentions which are unsup-ported by any factual allegations are not entitled to be admitted.
Barren or conclusional allegations that material factual disputes exist are not sufficient to trigger a hearing on a contention.
4.
The proposed changes might not change the result reached in Allens Creek.
In that case, reference was made to a govern-ment study as a basis for the contention in question.
In order for the result reached in that case to be changed, it might be necessary to require affidavits (which were required prior to the 1978 amendment to 5 2.714) alleging facts in support of the contention.
In any event, the proposed amendments provide enough flexibility to reach the same result again.
I l
5.
Editorial comments are attached hereto.
r m w m.s..m..y.,
l
_eedings, two distinct objectives should DUPLICATE DOCUMENT ljudicatory hearings should be focused basis.
Second, the issues should have Entire docurrent previously
- ance to the application under review.
entered into system under:
[h/,/d Q9 ANO I
e y
,}4 N o.
of pages:
y m
_ _m um
U.S. NUCLEAR REGULATORY COMMISSION STATEMENT OF POLICY ON CONDUCT OF LICENSING PROCEEDINGS I.
BACKGR0llND
}'\\
The Commission has reviewed the docket of the Atomic Safety and Licensing I
Board Panel (ASLBP) and the current status of proceedings before its individual boards.
In a series of public meetings, the Commission has examined at length all of the major elements in its licensing procedure.
It is clear that there are a number of difficult problems facing the agency as it endeavors to meet its responsibil'ities in the licensing area.
This is especially the case with regard to staff reviews and hearings, where requested, for applications for nuclear power plant operating licenses.
Historically, NRC operating licensing reviews have been completed and the license issued by the time the nuclear plant is ready ~to operater Now, for the first time these hearings on a number of power operating license applications may not be coc;:leted before construction is completed.
This I
situation is a direct consequence of the Three Mile Island (TMI) accident, which required a reexamination of the entire regulatory structure.
After TMI, for a period of over a year and a half, the Commission's attention and resources were focused on plants which were already licensed to operate and on the preparation of an action plan which specified the TNI-related require-r its for operating reactors.
Although staff review of pending license applications was delayed during this period, utilities which had received construction permits continued to l
build the authorized plants.
The staff is now expediting its review of the applications, and an unprecedented number of board proceedings are scheduled
2 for hearing in the next 24 months.
At least half of these proceedings concern applications for operating licenses pursuant to the Atomic Energy Act, as l
amended.
These proceedings have the potential to delay operation of qualified power plants.
The cost of such delays could reach billions of dollars and is to be avoided whenever measures are available that do not compromise the fundamental Commission commitment to a fair and thorough review of legitimate contentions from interested parties.
The Commission therefore is issuing this policy statement on the need for the balanced and efficient conduct of all phases of the hearing process.
The Commission appreciates the many difficulties _ faced by its Boards in con-ducting these contentions and complex proceedings.
By and large, the. Boards have performed very well.
This document is intended to deal with problems h not primarily of the Boards' own making, though the Boards will play an important role in their resolution.
Individual adjudicatory boards are encouraged to expedite the hearing process by using those management methods which presently exist in Part 2 of the Commission's Rules and Regulations.
The Commission wishes to emphasize though that in expediting the hearings the Board should ensure that the hearings are fair, and produce l
a record which leads +w high quality decisions that adequately protect the environment and the public health and safety.
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 set forth below are not to be considered inclusive, but rather are to be considered illus-trative of the actions that can be taken by individual Boards.
l
3 II.
GENERAL GUIDANCE The Commission's Rules of Practice provide the Board with substantial authority to regulate hearing procedures.
In the final analysis, the actions, consistent with applicable rules, which may be taken to conduct an efficient hearing are limited primarily by the good sense, judgment, and managerial skills of a presiding board which is dedicated to seeing that the process moves along at an expeditious pace consistent with the demands of fairness.
Fairness to all involved in NRC's adjudicatory procedures requires that every participant fulfill its obligations imposed in accordance with applicable law and Commission regulations.
While a board should endeavor to can' duct the proceeding in a manner that takes account of the special circumstances faced by any participant, the fact that a party may have personal or other obligations or possess fewer resources than others to devote to the proceeding does not j
relieve it of its hearing obligations. When a participant fails to meet f
its obligations, a Board should also consider the imposition of sanctions against the offending party.
A spectrum of sanctions from minor to severe is available to the boards to assist in the management of proceedings.
The Boards, for example, could warn the offending party that such conduct will not be tolerated in the future, refuse to consider a filing by the offending.
party, deny the right to cross-examine or present evidence, dismiss one or more of the party's contentions, impose appropriate sanctions on counsel for a party, or, in severe cases, dismiss the party from the proceeding.
In selecting a sanction, boards should consider the relative importance of the unmet obligation, its potential for ham l
4 to other parties or the orderly conduct of the proceeding, whether its occur-rence is an isolated incident or a party of a pattern of behavior, the importance of the safety or environmental concerns raised by the party, and all of the circumstances.
Boards should attenpt to tailor sanctions to miti-gate the harm caused by the failure of a party to fulfill its obligations and bring about improved future compliance. At an early stage in the proceeding, a board should make all parties aware of the Commission's policies in this regard.
When the NRC staff is responsible for the delay of a proceeding it should inform the Executive Director for Oparations.
The Executive Director for Operations will apprise the Commission in writing of significant delays and provide an explanation.
This document will be served on all parties to a proceeding and the board.
III.
SPECIFIC GUIDANCE A.
Time The fundamental ingredient in managing licensing proceedings is setting and adhering to reasonable time limits for required actions.
(VGinsert)
Requests for extension of time should generally be in writing and should be received by the Board well before the time specified expires.
5 B.
Consolidated Intervenors In accordance with 10 CFR 2.715a, intervenors should be consolidated and a lead intervenor designated who has "substantially the same interes^ 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 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 such consolidation has taken place, those functions should not be 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 incomplete.
C.
Negotiation The parties should be encouraged to negotiate 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 through written reports, prehearing conferences, and telephone conferences, but the boards should not become directly involved in the negotiations themselves.
D.
Board Management of Discoverv The purpose of discovery is to expedite hearings by the disclosure of information in the possession of the parties which is relevant to the subject matter involved in the proceeding so that issues may be narrowed, stipulated, or eliminated and evidence to be presented at hearing can be stipulated or
6 otherwise limited to that which is relevant.
The Commission is concerned that abuse of discovery not delay hearings.
Accordingly, the Boards should manage and supervise all discovery, including not only the initial discovery directly following admission of 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.
8
--.m-
. - - - _ _ _ _, - - _. -. - _,..,, -,. _..,. _ -, _, _,. - -. _., ~,.. _,,.
..m
9 Each individual Board shall determine the method by which it supervise.s thi.lscovery 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 conference with the parties to set a general discovery i
schedule immediately after contentions have been admitted.
E.
Settlement Conference Licensing Boards are encouraged to hold settlement conferences with the parties.
Such conferences are to serve the purpose of resolving as many con-tentions as possible by negotiation.
The conference is intended to:
(a)have the parties identify those contentions no longer considered valid or important by their sponsor as a result of infomation generated through dis-covery so that such contentions can be eliminated from 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 ';ettlement con-ference is not intended to replace the prehearing conferences provided by 10 CFR 2.751a and 2.752.
F.
Timelv Rulinos on Prehearino Matters The Licensing Boards should issue timely rulings on all matters.
In particular, rulings should be issued on crucial or potentially dispositive issues at the earliest practicable juncture in the proceeding.
Such rulings may eliminate the need to adjudicate one or raore subsidiary I
issues.
Any ruling which would affect the scope of an evidentiary
- presentation should be rendered well before the presentation in question.
l f
In other words, a board should issue timely rulings on questions of fact and law to define the issues in controversy in as specific a manner as is justified.
Rulings on procedural matters to regulate the course of the hearing should also be rendered early.
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 Atomic Safety and Licensing Appeal Board or the Commission.
A board should exercise its best judgment to try to anticipate crucial issues which may' require such guidance so that the reference or certification can be made and the response received without holding up the proceeding.
G.
Summary Disposition l
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 hearing time is not unnecessarily devoted to such l
issues.
H.
Trial Briefs, Prefiled Testimony Out~ ines and Cross-Examination Plans All or any combination of these devices should be required at the discretion of the Board to expedite the orderly presentation by each party of its case.
The Commission 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 which device or devices would be most fruitful in managing or expediting its proceeding by 1
limiting unnecessary direct oral testimony and cross-examination.
-7 I.
Combining Rebuttal and Surrebuttal Testimony For particular, highly technical issues, Boards are encouraged during rebuttal and surrebuttal to put opposing 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 Part 2 explicitly recognizes that a board may find it helpful to take expert testimony from witnesses on a roundtable basis after the receipt in evidence of prepared testimony, J.
Sua Sponte Raisino of Ise.ves by Boards
[To be prepared following Commission discussion.]
K.
Filing of Proposed Findings of Fact and Conclusions of Law' Parties should be expected to file proposed findings of fact and conclusions of law on issues which they have raised.
The Boardt, in their discretion, may refuse to rule on an issue in their initial decision if the party raising the issue has not filed proposed findings of fact and conclusions of law.
l i
L.
Initial Decisions Licensing proceecings vary greatly in the difficulty and complexity of issues to be decided, the number of such issues, and the size of the record compiled. These factors bear on the length of time it will take the Boards to issue initial decisions.
The Commission expects that I
decisions not only will continue to be fair and thorough, but also that decisions will issue as soon as practicable after the submission of a
proposed findings of fact and conclusions of law.
i5 Accordingly, the Chief Admininstrative Judge of the Atomic Safety and Licensing Board Panel should schedule all Board assignments so that after the record has been completed individual Board members are free to write Initial Decisions on those applications where construction has been completed.
Issuance of such decisions should take precedence over other responsibilities.
For the Co=11ssion SAMUEL J. CHILK Secretary of the Commission Dated at Washington, D.C.
this day of
, 1981.
I i
l l
i l
i
'