ML19350A875
| ML19350A875 | |
| Person / Time | |
|---|---|
| Issue date: | 03/05/1981 |
| From: | Cotter B Atomic Safety and Licensing Board Panel |
| To: | Bradford P, Gilinsky V, Hendrie J NRC COMMISSION (OCM) |
| Shared Package | |
| ML19350A874 | List: |
| References | |
| FOIA-81-104, REF-10CFR9.7 NUDOCS 8103170314 | |
| Download: ML19350A875 (11) | |
Text
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4' N1 UNITED STATES i
NUCLEAR REGULATORY COMMISSION i
ATOMIC SAFETY AND LICENslNG BOAnD PANEL e
5,,
WASHIN GTON. D.C. 20555 March 5,1981 MEMORANDUM FOR:
Chairman Hendrie Commissioner Gilinsky Commissioner Bradford Commissioner Ahearne FROM:
B. Paul Cotter, Jr. [
Chief Administrative Judge Atomic Safety and Licensing Board Panel
SUBJECT:
CONDUCT OF LICENSING BOARD PROCEEDINGS As a consequence of the public meetings of February 26, 27 and March 3, 1981 on licensing procedures, attached hereto is a revised Draft Proposed Statement of Policy on that subject.
The drafi is based on all the proposals submitted by the ASLBP, the General Counsel, the Executive Director for Ooerations, the Director of the Office of Policy Evaluation, and the Director of the Office of Nuclear Reactor Regulation concerning possible improvements to licensing proceedings.
The draft represents a consensus view of five full-time Panel members (the remaining 10 members l
were out of the office at hearings and one at the National Judicial College).
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l 81031703/O
[ WORKING PAPER]
U.S. NUCLEAR REGULATORY COMMISSION COMMISSION GUIDANCE ON CONDUCT OF LICENSING BOARD PROCEEDINGS DRAFT PROPOSED STATEMENT OF POLICY
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I.
BACKGROUND The Comission has reviewed the docket of the Atomic Safety and Licensing Board Panel ("ASLBP") and the current status of proceedings before its individual boards.
In a series of public meetings, the Comission has i
examined at length all of its major components involved in licensing proceedings.
An unprecedented number of board proceedings are scheduled for hearing in the next 24 months.
At least half of these proceedings concern applications for construction permits and operating licenses pursuant to the Atomic Energy Act, as amended.
These circumstances will severely strain the exist-
.ing resources of the.ASLBP and have the pccential to delay operation of qualified power plants.
The potential cost of such delays to consumers is clearly of great consequence.
II.
C0tHISSION DECISION Based,upon 'an extensive review and consideration of the Comission's rules of procedure for licensing hearings, the contentions raised in such proceed-ings, and the manner in which such proceedings are conducted--a review that is still continuing--the Comission has concluded that: _ (1) individual l
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boards should be strongly encouraged to employ all of the hearing manag'ement devices presently within their authority under the Administrative Procedure Act; (2) the requirements for admissible contentions in operating license proceedings should be refined; and (3) while plant operation must abide the resolution of those issues which materially bear on the public health and safety, the comon defense and security and the environment, operation need not await the resolution of other issues. ~This statement, the first in a series, sets forth the Comission's policy'of insuring that all possible hearing management tools are employed by licensing boards. Virtually all of the procedural devices discussed within are currently being employed by s'it-ting Boards.
The Comission's reemphasis of the use of such tools is in-l tended to reduce the time for resolving licensing proceedings following Com-i mission action in response to the Three Mile Island accident.
Recent Supreme Court decisions have reaffirmed the broad latitude which agencies have in shaping their procedures.
See Costle v. Pacific Leoal l
Foundation, et al.,
U.S.
, 63 L. Ed. 2d 329, 100 S. Ct.
(1980) and' Vermont Yankee Nuclear Power Corp. v. National Resources Defense Coun-l cil, Inc.,435 U.). 519, 55 L. Ed. 2d 460, 98 S. Ct.1197 (1978).
l While the Comission views this policy statement as merely elaborating on existing regulations, the foregoing cases provide ample authority for any changes in the interpretation of existing regulations that might be reflected in this statement.
l III.
HEARING MANAGEMENT TOOLS In consideration of the circumstances' recited in Section I and the Comis-sion's decision.in Section II, above, the Comission strongly reiterates ATTACHMENT A
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its firm policy requiring expedition of the hearing process to the maximum extent consistent with the procedural ri hts cf the parties.
Individual S
licensing boards are encouraged whenever pcssible to expedite hearings by using all those hearing management methods which presently exist in Part 2 of the Comnission's Rules and Regulations,10 C.F.R. Part 2 (1980). Those
, procedures addressed below are not to be considered inclusive, but rather are to be considered illustrative of the actions that can be taken by individual Boards.
A. Time We note at the outset that the fundamental ingredient in managing licensing proceedings is time.
Sections 2.710 and 2.711 prescribe the general rules for computing and adjusting specified times for action by the parties.
The Boards are directed to specify time frames for all actions where they deem such delineations of time will expedite proceedings.
Concomitantly, the Boards are advised to thoroughly satisfy themselves that the Sec-tion 2.711 " good cause" for adjusting times fixed by the Board or prescribed by Part 2 truly exists.
All requests for extensions of time shall be in
-writing and shall be filed with the Board three working days before the time specified expires.
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B.
Ceaselidated Intervencrs In accordance with Section 2.".5a, intervenors should be consolidated and a lead intervenor designated vr.o has "substantiaHy the same interest that may ATTACH? TENT A Page 3 of 10
be affected by the proceedings and who raise [s] substantially the sa+e ques-tions...."
Obviously, no con'solidation should be ordered that would preju-dice the rights of any intervenor.
However, consonant with that condition, single, lead intervenors should be designated to present evidence, to conduct cross-examination, t'o submit briefs, and to propose findings of fact, conclusions of law, and argument.
Where such consolidation has taken place,.those functions should not be per-formed by other intervenors except upon a showing of prejudice to such other intervenors' interest or upon a showing to the satisf action of the Board, that the record would otherwise be incomplete.
C.
Necotiation The parties shoul' be encouraged to negotiate at all times prior to and dur-ing the hearing 1.
2 solve contentions, settle procedural disputes, and bet-ter 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 tne negotiations themselves.
D.
Board Manaoement of Discovery The purpose of discovery is to expedite hearings by the disclosure of all
-information in the possession of the parties so that, inter alia, issues may be narrowed, stipulated, or eliminated and evi:ence to be presented at hear-ing can be stipulated or otherwise limited tc that which is relevant.
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The Co mission is concerned that discovery not delay hearings thro.gh abuse of discovery devices or their overuse, hoLever well intentioned, by the parties.
4 Accordingly, the Boards are directed to manage and supervise all discovery, not only the initial discovery relating to admitted contentions, the appli-cation and accompanying environmental report, the original Safety Evaluation Report', and the Draft and Final Environmental Statement, but also discovery arising out of any supplements to those documents.
The Commission rein-dorses the policy of voluntary discovery, but directs the Boards, in consul-tation with the parties, to establish time frames for the completion of both voluntary.and involuntary discovery.
Each individual Board shall determine tne cetnod by which it supervises the discovery process.
Possible methods incluce, but are not limited to, writ-ten reports from the parties, telephone conference calls, and status report conferences on the record.
In virtually :'l instances, individual Boards should schedule an initial conference with the carties to set a general dis-l covery schedule immediately after contentiens have been admitted.
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1 K'ith respect to discovery following the filing of final supplements to the SER and the FES, Boards are directed to closely monitor such discovery and insure that it is completed as quickly as possible.
All useful management devices should be employed, and specific time frames should be establ.shed.
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t Finally, the Boards are reminded that the failure of a party to comply with the letter or the spirit of discovery is s'ubject to appropriate sanctions.
In extreme cases, such sanctions may include denial of the right to cross-examine or present evidence, dismiss'al of the offending party, or dismissal of one or more of its contentions.
E.
Settlement Conference Following completion of the discovery provided in ss2.740, et, sea., and prior to the filing of motions for summary disposition, licensing boards are encouraced to hold settlement conferences with the parties.
Such conferr ences are to serve the purpose of resolving as many contentions as possible by negotiation.
The conference is-intended to:
(a) have the parties iden-tify those contentions no longer considered valid or important by their sponsor as a result of informatien generated through discovery so that such contentions can be eliminated from the proceeding, and (b) to have the par-
. ties negotiate a resolution, wherever possible, of all or part of any con-tention still held valid and important. The settlement conference is not ~
intended to replace the prehearing conferences provided by ! 2.751a and 4
2.752.
F.
Prehearing Procedures in General The Commission, while recognizing that differences among individual proceed-ings may dictate a longer or shorter time, believes that Boards should schedule all prehearing procedures to be completed so that hearings will commence not later than five months following the issuance of the last staff document in the proceeding.
Further, whenever advantageous and practicable.
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l Boards are encouraged to be,ar and decide discrete ' issues prior to the issuance of the last staff document in the proceeding.
G.
Trial Briefs, Prefiled Testimony Outlines 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 sub-mitted to the Board.alone, would be of benefit in most proceedings.
Never-theless, each Board must decide which device or devices would be most fruit-ful in managing or expediting its pro,ceeding.
H.
Combining Rebuttal and Surrebuttal Testimony For particular, highly technical issues, Boards are encouraged during rebut-tal and surrebuttal to put opposing witnesses on the stand at the same time so that each witness will be able to comment irmediately on an opposing wit-ness' answer to a question.
.I.
Simultaneous Filing of Proposed Findings t
Whenever possible, Boards are encouraged to require all parties to file pro-posed findings of fact and conclusions of law simultaneously.
l J.
Initial Decisions Licensing proceedings vary greatly in the difficulty and complexity of is-sue's to be decided, the number of such issues, and the size of 'the record ATTACHMENT A Page 7 of 10
compiled.
Records running 20 to 40 linear feet with transcripts of 10,000 to 20,000 pages are the rule rather than ~the exception in today's contested proceedings on operating licenses and construction permits.
These records frequently represent 40 or more man years of work by the parties.
In con-trast some types of proceedings are substantially smaller and less complex.
The Commission expects Initial Decisions of the highest qual'ity in view of '-
the importance of these decisions to the ' national interest.
Concomitantly, the Commission directs that such decisions issue as'soon as practicable after the submission of proposed fin, dings of fact and conclusions of law to insure that facilities, if qualified, are licensed as soon as they are ready to operate.
Accordingly, the Chief Administrative Judge of the Atomic Safety and Licens-ing Board Panel is directed to schedule all Board assignments to that indi-vidual Board members are free to devote full time to writing those Initial Decisions that could delay construction or operation of a nuclear facility immediately after the record has been completed.
The Chief Administrative Judge is also directed to furnish all available resources in the fann of '
staff work and law clerks to each licensing board when it is working on an Initial Decision. The issuance of Initial Decisions on completed proceed-
-ings, which could delay construction or operation of nuclear facilities, takes precedence over other responsibilities.
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Additionally, the Comission deems it appropriate to establish guidelines for the length of time necessary to compl'ete and issue Initial Decisions.
Appendix A to Part 2 of the Comission's rules established a single, stan-dard guideline of 35 days in 1972. At that time the average proceeding lasted three days, few were contested, and the Atomic Safety and Licensing Bo'ard Panel was just being established as a full-time activity.
A more realistic guideline is needed in 1981.
The Commission has concluded that a reasonable guideline.can be constructed from a ratio of four working days for each day of hearing with a minimum, of 35 calendar days to accomodate communication aT.cng Board members geographi-cally dispersed. Thus an Initial Decision on a one-week hearing should be issued within 20 working days of the close of the record or the last filing of proposed findings of fact and conclusions of law, whichever is later.
For larger cases lasting a month or longer to hear, a ratio of three working days to each day of hearing is an appropriate' guideline.
Thus, an Initial Decision on an operating license or construction permit proceeding requiring a m: nth, or 20 days of hearings, should be issued in 60 working days.
l While the Comission recognizes that hearings involving particularly diffi-cult, complex, or novel issues may take longer to decide, the foregoing Boards are directed to make every effort to complete their work within the time frame established by the guidelines.
Boards are encouraged to adopt proposed findings as frequently as they deem appropriate.
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a Boards should strive to complete and issue their Initial Decisions in shorter time frames than the guidelines pFovide whenever possible.
K.
Oblications of Parties The Commission wishes to emphasize that the failure of any party to comply with any obligation imposed by the Commission's laws and regulations without good cause will result in appropriate sanctions which include for extreme cases, dismissal of that party from the proceeding.
9 VI.
COMMISSION MONITORING The Commission desires to closely monitor hearing proceedings in order to offer guidance where appropriate.
In tfeis conne: tion, should the Boards certify close questions regarding the interpretation of this policy state-ment or any other appropriate matter to the Commission for its considera-tion, the Commission will exercise its best effort to answer' such questions within 15 working days'of receipt.
The Commission recognizes that many such certifications will occur'at critical' points in the proceeding and that some proceedings will not be able to go forward until such questions are an-5 swered.
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