ML19350C937
| ML19350C937 | |
| Person / Time | |
|---|---|
| Issue date: | 04/01/1981 |
| From: | Ahearne J NRC COMMISSION (OCM) |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8104100436 | |
| Download: ML19350C937 (7) | |
Text
_ _ _ _
l
\\
j,0# "**4 c
,r UNITED STATES y
4, NUCLEAR REGULATORY COMMISSION g
)
WASHINGTON, D.C. 20555 v
%, * * * * * }
April 1,.1981 OFFICE OF THE
'g COMMISstONER
-t t
SUBJECT:
< THE NR'C' HEARING PROCESS Attached are some initial thoughts on the NRC hearing process.
This. paper is a slight modificat'on of my March 17th memorandum.
Attachment f.
,3 x
- f d&g C
q%yik,*s?qunagra n
12 es, v/ w
/
'h e
l
o------_
John F. Ahearne April 1, 1981 Purpose of NRC Hearings f\\g.'
In my limited experience, I have seen'our hearings described or l
justified as having any or all of the following purposes:
i; 1
1.
To satisfy the requirements of the Atomic Energy Act and of the Administrative Procedure Act.
9 j
2.
To contribute significantly to insuring adequate protection of the puWic health land safety.
- 3.
Tc build public confidence in and, understanding of NRC licensing.
~
Assuming these purposes, my estimate of their being satisfied is as follows:
1.
Yes -- by design, i.e., the hearir)g process. is designed to satisfy these statutory requirements.
2.
There are several arguments offered to support this view:
(a)
Plants are safer because of items identified in hearings and subsequently corrected.
But:
this may be true, but I knew of no case.
(b)
Contested plants are safer because the NRC staff works more thoroughly when they know they will be tested in a hearing. But:
are uncontested plants less safe? Are the 46 y plants that received operating licenses without a hearing less safe than the 251/ plants that went through hearings?
(c) All plants are safer because staff review is toughened by exposure to hearings, causing the staff to articulate their assumptions and their logic,:which assures sound reasoning.
But:
these benefits, even if true, are unmeasurable, and this is a very costly and indirect approach to improving staff practice.
Improving staff practice requires clear guidance and good management.
(d)
The staff and applicant are not sole possessors of truth. The hearing process allows others to raise significant issues and to challenge the staff and applicant. The Board will discover the truth.
But: aside from the question of significance of the issues, the current process is not well geared to accomplish this objective.
Standing is essentially a residence requirement, not an expertise test.
Our practices on contentions l
if Preliminary data.
L
M
~
w h_
2 L.
i y'
and. discovery seem to invite participants to come and look for c.L c ~,.
.e The adversary court model presumes opposing sides which have a b
The courts do not recognize the dis ute when a party represents a public as opposed to a private interest (p direct personal interest.
i.e.,
But the NRC hearing process supposedly focuses Sierra Club _v. Morton).
on legitimate issues rather than personal interest, i.e., on public c
rather thpn private interests. For a person with an issue to reside y.j near the plant may be entirely fortuitous.
k
-Unless the objective is to delay, the parties should be looking for E
a mghanism which assures their issues will be given serious attention and provides a response which describes disposition of the issues and There should be a better
. makes clear the basis for that resolution.
alternative than our current process, which exhausts all_ parties (e.g.,
7 e
Seabrook seismic pleading).
b If this is the purpose it obviousTy is not working and may not be 3.authorized (nor funds appropriated).
The process could be defended as educating the public, particular y those who live near a plant: (1) if l
t in your backyard, you are entitled to understand it; (you have a p an2) the hearing prov to get the attention of the NRC and the applicant to get answers; (3)
But:
this is a very costly way the bureaucracy is often unresponsive.
to achieve objectives that could be met by more informal public meetings to air issues and educate the local public.
Other problems The process as it now, exists is unable to distinguish betweenThis 'is due trivial and significant iisues.
~
structure which rarely rewards and often punishes attempts to control a proceeding and (b) a failure f.o provide clear, consistent, timely, and rational guidelines which can bs applied bf a Board with confidence in
~
The first is inherent in the nature of the an individual proceeding.Since interlocutory appeals are discouraged, review appeal process.almost always takes place from the perspective of a completed hearing.
Complaints that contentioris, discovery, or testimony were improperly
~
~
The affected party excluded can be effectively raised at this stage.
argues that it was prejudiced in that "if only X were included, the Complaints that too much was included I
decision would be different."the prejudice lies in the delay which already will will be academicLicensing Board members are inclined to be " conservative" have occurred.
Errors in excluding items in allowing issues to enter the hearing.
might lead to remand, while errors in including items seem to have little consequence.
I
.2'
... M--
. = _
i, y
3 The second aspect flows from the Commission collegial decision-A Collegial decisions are the result of compromise.
h final Commission document is the result of a slow process of coordinating making process.
and negotiating different views. Unless the Comission devotes great effort,.the product will be imprecise.
yi proposed Changes if If hearings are not necessary to assure public health and safety, b-The current process has high costs.
then fundamental reform ist needed.
P If there are few benefitsi we should look for a more efficient, effective
,[
alterna tive..
It is realistic to expect we can provide significant E.
improvemerits in the process without radical. change to the framework.
7 However, any approach which begins and ends by establishing an envelope f(
schedule or by setting time limits for individual pieces is largely a The logical approach is to (1) understand the major stab in the dark.
components of the process, (2) identify at least in qualitative temsRecognizing the major problems, and (3) then address those problems.
this is a complex process, we must be prepared to make decisions with imperfect understanding.
A significant amount can be accomplished even without radical Although I agree with the change to the current hearing process.Chaiman of the Licensing Board pane responsibility and authority to make judgments for individual proceedings, the Commission has the responsibility for setting the general rules.
In light of these considerations I propose that the Comission take the following actions:
Support use by the Boards of current authority to control
,,N proceedings.
Raise t.he threshold for admitting contentions.
Clarif responsibilit9 nf the Boards, Modify or eliminate sua_ sponte authority o
Strengthen deference given to judgment of a Board in an o
individual case Support sanctions o
We should issue a Emphasize current authority of the Boards.
policy statement which gives strong support for the Boards to use. existing A.
authority to control proceedings. The primary utility would be to stem l
t l
l
-. ~..m;.
-.c a
~.
c 4
the trend of the past few years. A policyItatement would have a positive effect because we would clarify our expectations of the Boards. We also must be prepared to support Boards when they follow our guidance.
The.' statement proposed in the March 5th Cotter memorandum is good.
Use of existing authority by Boards could significantly,/ shorten and
/
focus proceedings.
B.
Raise contention threshold.
This very important step is relatively simple, feasible, could be implemented quickly, and directly addresses the failure to distinguish between trivial and signiff ont issues.
We must develop better mechanisms for selecting ru. issues.
Regardless of whether the Allens Creek decision was correct or not (i.e., whet.her it merely continued a body of practice which originated in 1973 or constituted a departure from past practice), this issue needs to be addressed.
(Summary disposition is not a reasonable substitute for adequate screening of contentions. Sumary disposition motions require a disproportionate amount of resources and accelerated schedules i
will make them virtually impractical.)
f OGC should work with the various Licensing Board members who expressed concerns in connection with the Allens Creek decision.
0GC should also specifically consider Costle v. Pacific Leaal Foundation (63 L Ed 2d 329).
That decision in combination with Vermont Yan(e_e, should be analyzed to help formulate an appropriate, higher threshold.
C.
Clarify responsibility of Boards.
Is the primary responsibility of
- a. Licensing Board to resolve disputes presented by the parties or to p'erfom an independent technical review? I believe it to be the first tiut perceive an increasing shift towards the second.
I would narrow and strengthen the focus of the Boards on contested issues by the following:
m 1.
Modify br eliminate sua sponte role.
Under the current rule a
~
Board is to raise an issue on its own in an OL proceeding when it
~
detemines "that a serious safety, environmental, or common defense and security matter exists." The " serious" threshold has been lowered.
Boards have read Comission and Appeal. Board _ decisions over the last few years as defining a broader responsibility for them, which increases the pressure to build an all inclusive record.
We could take action to counteract the recent expansion of the sua sponte role (e.g., see attached excerpt from my February 23,1MT memorandum)'.and reinforce the
" serious" threshold.
If uncontested plants are safe enough, only admitted contentions j
should be debated.
I would eliminate the sua sponte role. The hearing
\\
l
\\
l
__...e r---
~. ',
5
...q should examine only contested issues, i.~e.', the ones that make the case different from uncontested cases. The threshold should be high.
Public confidence would then be based on real issues being debated.
If there is no support for deleting the sua sponte role, we should restructure the process by which these issues are raised'.
In particular, a Board should certify to the Comission a question it believes should be raised before requiring parties to address it in a hearing. This would serve to emphasize the unusual nature of such inquiries.
Atthevery1hastwe'needtoreemphasizetheboundarieswhichwere established in the original articulation of the sua sponte rule:
"The fact that the Boards may inquire into matters that concern them should in no way be construed as a license to conduct fishing i
expeditions. As a general rule, Boards are neither required nor expected to look for new issues. The power to do so should be exercised sparingly and utilized only in extraordinary circumstances where a Board concludes that a serious safety or environmental issue remains.
Nonnally there is a presumption that the parties.
themselves have properly shaped the issues, particularly because' '
f the hearing follows comprehensive reviews by the regulatory staff and the Advisory Comittee on Reactor Safeguards."
Consolidated Edison Co.
(Indian Point Unit 3), CLI-74-28, 8 AEC 7, 9 (1974).
2.
Strenathen deference aiven to a Board's judoment in an individual case.
No Board is going to aggressively manage a process if it is concerned that it will be second guessed at a later date.
Given guidelines, such a's those in the Cotter March 5th memorandum, a Board's judgment shculd be given great deference. Application of general principles to specific cases will usually turn on the details of; the circumstances. The Board is most familiar with those details and has the advantage of personally participating in.the ongoing proceedings. A paper record is no substitute for actual presen~ce.
This does not mean we should not follow closely individual cases.
I will support efforts to develop better ways to monitor the hearing process.
3.
Give sanctions real content.
Although authority clearly exists to sanction parties who do not meet their obligations, as a practical matter a Board cannot make a credible threat of sanctions.
i For example, a Board has no control over the NRC staff.
Obviously, the
~
staff has a number of competing priorities.
Although in some cases its hearing work should slip, the staff should be prepared to justify.those l
slips.
-i l
e w.
Cu E
6
.!I t
We should expand the concept suggested b~y the Appeal Board in OPS, hearing i.e., communication by a Board when the staff does not meet its The EDO should be told;of'each scheduled commitment p'
by the staff in a proceeding and os any failure to meet such a commitment.
j responsibilities.
Pa s
The applicant already has an incentive, in that delay can be verymeet deadliney However, if the applicant does not We t5 costly.
not be heard to complain about the ultimate delay in the process.
gg should document contributions to delay by the applicant.
W'ch respect to' other parties, the penalties described by Cotter Focusing the hearing on more important issues will help should be used.
avoid dissipation of intervenor resources as.well as staff resources.
In addition, clarifying the responsibility of Boards to pursue issues on their own will help make the threat of throwing out a contention more It is not very effective to strike a contention and then realistic.
adopt it as a Board question (which has happened).
g Iriterim licensing legislation is D.
Interim Licensing Legislation.
The licensing impact problems are due to (1) TMI the wrong solution.
Going-having deflected staff resources and (2) an inefficient process.
'for interim licensing authority neglects the first and accepts the
[
It significantly undercuts public credibility, introduces the second.
ieast efficient part of the licensing process (the Commission) directly into our ongoing proceeding, but, worst of all, accepts all the problems If the majority concludes they are unwilling with the current system.
or unable to address making substantive changes to the process, or that I
such changes would take too long to affect the near term problems, would not oppose a legislative proposal for low power interim licensing.
Conclusions Although I question whether the adjudicatory format is appropriate for 'the resolution of technical issues involving a large degree of professional judgment, I recognize that a fundamental change in the We can significantly process will not occur without extended debate.
The improve the process without radical change to the framework.
participants in the process are entitled to guidance, and it is the A pronouncement that "we Commission's responsibility to provide it.
It want the hearing process shortened -- go and do good" is not enough.
By not addressing the purposes fails to address fundamental questions.
of the Hearings and the details of the process, we can. neither estimate whether the schedule will really be shortened, nor the costs of shortening.
e 4
m l
EXCERPT FROM FEBRUARY 23, 1981 MEMORANDUM TO THE COMMISSIONERS FROM MR. AHEARNE,
SUBJECT:
HEARING ISSUES REQUIRING COMMISSION ATTENTION
... UNRESOLVED SAFETY ISSUES
'.r 7.
The Commission should clarify the Licensing Boards' responsibilities in OL and OL amendment proceedings concerning unresolved safety issues, to make it cl. ear that litigation and findings are required in this area only if a Board determines that a " serious safety environmental or common defense and security matter exist." See 10 CFR 2.760a.
Discussion I did not object to the Appeal Board decisions in Monticello and North Anna because' I expected they would be interpreted as simply.
cautioning boards to be particularly sensitive about possible issues relating to unresolved safety issues.
In other words, resolution.of unresolved safety issues inherently is more likely to contain a serious issue.
I never thought there was danger that they would be interpreted as an independent mandate to consider those issues since that would be contrary to Section 2.760a.
However, apparently the Boards have not seen it my way.
For example, the September Zimer decision contains the statement (p. 3):
"Recent Appeal Board decisions have also re-emphasized the obligation of Licensing Boards in operating license proceedings to make. findings concerning the resolution of unresolved generic issues applicable to the particular reactor, whether or not the issues are the subject of contentions."
In fact, one Board seemed to find such a m
responsibility even in an amendment proceeding (see the ASLB decision issued January 26, 1981 in the Dresden spent fuel pool proceeding).
That Board s'ua sponte ordered:
" Based on a review and analysis of the various generic unresolved safety issues under continuing study, what relevance is there, if any, to the proposed spent fuel pool modification? Further, what is the potential health and safety implication of any relevant issues remaining unresolved?"
To avoid further expansion of the already unwieldy hearing process, l.
I recomend we clarify this matter....
4
.