ML19353A595
| ML19353A595 | |
| Person / Time | |
|---|---|
| Issue date: | 04/24/1981 |
| From: | Bickwit L NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML19353A596 | List: |
| References | |
| FRN-46FR17216, REF-10CFR9.7, RULE-PR-2, TASK-PICM, TASK-SE SECY-81-252, NUDOCS 8105060022 | |
| Download: ML19353A595 (24) | |
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l' f(pucy April 24,1981 SECY-81-25E j
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,'&, u =11e POLICY ISSUE
$#f((['/g' (Commission Meeting)
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For :
The Commission o>
V un From:
Leonard Bickwit, Jr., General Counsel
Subject:
PROPOSED CHANGES TO 10 CFR PART 2 -- ANALYSIS OF PUBLIC COMMENTS AND RECOMMENDATIONS OF NRC'S LEGAL OFFICES AND MCENSING PANELS Discussion:
I.
Summary On March 18, 1981 the Commiasion published in the
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Federal Register a Notice of Proposed Rulemaking t
soliciting public comments on six proposed changes i
to the Commission's Rules of Practice, 10 CFR Part 2 These changes would:
(1) eliminate formal discovery against the NRC staff; (2) permit licensing boards to issue oral rulings on written i
motions; (3) prchibit motions for reconsideration of prehearing orders; (4) permit the licensing t
board chairman to rule on prehearing matters without soliciting the views of the other board members; (5) eliminate applicant's right to file a reply to the other parties' proposed findings of facts; and (6) eliminate the requirement that l
motions for summary judgment be filed no later than 45 days prior to the commencement of the hearing.
The licensing boards on a case-by-case i
basis would set an appropriate schedule for the filing of such motions.
i More than 600 comments were received.
The great preponderance of the comments were from intervenors in MRC proceedings and citizens who opposed all of j
the proposed changes.
Many stated that the Commis-sion should not be expediting the licensing process, arguing that the *Ihree Mile Island accident (and the CONTACT:
SECT nuit: This papu, which is Trip Rothschild, OGC identical to advance copies which were 4-1465 distributed to Commission offices on April 24,1981, will be a subject of discussion at the open Courission meeting 1 on hised Limnsing Procedures on j
810 5 0600R Tuesden April 28. 1981.
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l The Commission 2
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Kemeny and Rogovin reports) indicates that more concern should be given to safety issues.
Com-pressed hearing schedules would, in their view, detract from safety and would be inconsistent with the Commission's mandate to protect the public health and safety.
The preponderance of the nuclear industry com-mentersopposedtheeliminationofdiscoveryagainsd the NRC staff and applicant's right to file a i
reply to other parties ' proposed findings of fact. l The industry is rather ambivalent about the other four aroposed changes, believing that they would have little effect o.1 the hearing schedule.
The i
indu try suggested that if the Commission is serious about expediting the process it should (a) reinstate the immediate effectiveness rule; (b) raise the threshold for admission of conten-tions; (c) direct the licensing boards to manage i
the proceeding better; (d) dire..t staff to publish,
its SER and SER supplements in a more timely fashion; and (e) seek legislation which would permit full power operation of facilities prior to ;
the completion of adjudicatory hearings.
There was not as much comment on the proposed j
hearing schedule as we expected.
The intervenors who commented on the schedule indicated that they j
could not meet the proposed deadlines because of a '
lack of resources.
On the other hand, several
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industry commenters believed the schedule could be i further compressed, for example, by reducing the proposed 65-day period for the licensing board to issue a decision following receipt of proposed findings of fact.
In the following pages, we su= mar'ze the comments that iere submitted and provide tLa recocmendationm of OGC the Chairman of the ASLAP, the ASLBP, and OELD.
i% also discuss other means to expedite the i licensing crocess which were suggested by com-menters.
We have not counted the numbe-of com-menters who support a given argument, and rarely identify which commenter(s) supports a particular position.
Our analysis instead focuses on the major arguments advanced by commenters in favor er against the proposed changes and alternative approaches available to the Commission.
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Tho:Commiopion 3
The major proposal under consideration is the elimination of formal discovery against the NRC staff.
This propor.21 is the major time saver in the rule.
Because they view the decision on that matter as primarily a policy decision which requires balancing of numerous competing interests, OGC, the Chairman of the ASLAP, and the ASLBP are not making recommendations to the Commission in this paper, limiting the analysis to a discussion of the various factors that must be balanced and various options available to the Commission.
The j
staff will submit separate views on this subject in-I another paper early next week.
On the other five 1
issues, which involve minor technical fixes to the regulations, OGC, the Chairman of the ASLAP, the ASLBP and OELD are submitting joint recommendations.
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l II.
Analysis of Proposed Rule Changes j
1.
Eliminate Discovery Against the NRC Staff.
Under the Commission's regulations parties may l
engage in formal discovery against the staff.
The Commission. sought comment on a rule which would not require the staff to respond to formal discovery requests.
The staff would, however, routinely l
produce relevant documents and respond to telephone and written requests for information wherever practicable.
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A.
Summary of Ccmments i
i This proposal.was strongly opposed by most com-ments from citizens, intervenors, and industry.
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Several commenters argued that the most important l
role of the staff is to furnish the public with objective information on the relevant issros, and that informed public participation is essential I
to democracy.
Several intervenors asserted that their pa;ticipation in NRC proceedings would be severely impeded if they could not get relevant information from the NRC staff prior to the cr==ancement of the hearing.
Intervenors claimed l
that elimination of formal discovery against the staff would make it far more difficult for i
tima to identify significant safety issues and +w l
a2.?'culate positions.
~Intervanors repeated 1v
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l emphasized that without discovery against the i
staff important safety issues might not get raised.!
Opponents of the proposal also argued that the NRC l
. staff should not be given a preferential position j
in the proceeding.
Intervenors also argued that elimination of dis-l covery against the staff might lengthen the licensing process.
Intervenors stated that through staff responses to interrogatories they j
' frequently learn of the NRC staff position prior j
to publication of the SER.
This permits inter-venors to decide at an early date whether to pursue or-drop contenciens.
It is also argued that the SER and prefiled staff testimony are conclusory in nature and that it is through interrogatories that the intervenors are able to ascertain the basis of the staff position.
These l
commenters emphasized that access to staff's rea-
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soning is essential to preparation of testimony and cross-examination.
I Intervenors further assert that staff learns of j
their specific concerns through questions posed i
in interrogatories and this permits the staff to i
focus its testimony.
Because intervenors fre-t quently do not put en direct testimony and present j their case through cross-examination of the appli-l cant and the staff, it is argued that if the pro-j posed rule is adopted staff may not be aware of intervenor's specific concerns until it is subjected to cross-examination.
The staff j
witness therefore might not be prepared to answer i
intervenor's questions and staff might be required!
to prepare additional testimony.
This could delayi the hearing.
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l Moreover, it is asserted that ir, on cross-l examination, staff refers to documents which have :
not been made available to intervenors, the Board l l
might be required to recess the hearing to permit ~
intervenors time to study the material, and file any necessary rebuttal testimony.
Intervenors also pointed out that under 10 CFR 2.720(h)(2)(ii), the staff is required to respond to. interrogatories only if the licensing board determines that'" answers to the interrogatories are necessary to a proper decision in the proceed-t ing and that answers to the interrogatories are l
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i The Commission 5
i not reasonably obtainable from any other source
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Intervenors note that if staff does not l
wish to respond to interrogatories it can seek relief from the board.
i Most of the industry commenters also believed that the elimination of discovery against the staff might lead to longer delays in the completion of L
hearings than occurs under the current rules.
The traditional argument that discovery substantially reduces hearing time was frequently espoused.
i A good example of the industry position is found i
in the comments submitted on behalf of Southern California Edison-In the first place, under the proposed rules Applicants and Intervenors would be severely hampered in adequately preparing to rebut or cross-examine the NRC Staff's case.
Attorneys may have to wait until i
NRC Staff witnesses were on the stand in j
ask questions, and then they'd ask We t ong questions and more of them Hearl c; w:ald rhereby become longer, puc.ctuated with continuances, and less 1 ;elligible.
j Findings of fact and conclusions of 1sw 1
would be more difficult to draft and support.
Accordingly, it would also take longer for the Licensing Boards to make l
intelligent decisions based on such an incomplete or unintelligible record.
Secordly, withdrawal of contentions or i
settlement between the parties prior to j
hearing would be discouraged on the hope i
that on the brink of trial the NRC Staff 1
would reveal material in the SER or Final SER Supplement favorable to one of the l
parties' negotiating positions.
Discovery of the NRC Staff position curren.ly facili-tates such withdrawal and settleuent of tenuous contentions.
Thirdly,. Applicant motions for summary L
judgment of contentions prior to hearing,
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- a. procedure heretofore encouraged by NRC could be restricted on the procedural ground that 1RC Staff did not have to reveal-its position until piblication of the SER er L
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The Commission 6-
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SER Supplement, as the case may be, and no infounal discovery against the NRC Staff was available prior to such publication.
I Cf. Dude Power Company (McGuire Nuclear i
WatTon, Units 1 and 2), LBP-77-20, 5 NRC
~680, 68i (1977).
The practical inchility to move. for summary disposition until after the NFC Staff had issued its Final SER Supplament would require " eleventh hour" l
summary judgment motions, unnecessary prep-l aracion of hearing testimony, an increased j
nnmber of issues for hearing, thereby increasing, not decreasing, the delay in completion of hearings.
In the case of
[ San Onofre Units 2 and 3], Applicants 7
-conservatively estimate that the summary judgments disposing of the dewatering well and uranium price contentions have saved two to three weeks of hearing time.
These motions may not have been successfully made under the proposed rule changes.
Another argument made by the industry was that the applicant sometimes poses interrogatories upon the staff and that it would be handicapped in develop-ing its position if it could not file interrogatoriq upon the staff.
Finally, it was argued that if discovery is permitted on the applicant and intervenors during a 25-day period following issuance of the last SSER required before hearing, discovery against staff during this same period would not create delays.
The industry commenters though did not unanimously oppose the proposed change.
General Electric endoraed the proposal stating that it could result in a significant time savings.
Westinghouse stated, "This change is a good start towards the reallocation of scarce and valuable Staff resources!
Staff resources and expertise would be used more efficiently in preparing the Safety Evalua-tion Report...."
Another commenter suggested that discovery should be permitted against the staff until after the SER is published.
No dis-I covery against the staff would be permitted on j
Another suggested approach is that there
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l be no discovery against any party _following the i
. issuance of the SSER.
Since it is a staff do:nment; it is argued that in most cases any nuestions i
Taised;by the document should.be posed to-the staff a
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The Commission 7
rather than the applicant.
Therefore, if there is -
no formal discovery against the staff following
' issuance of a SSER, it follows there should be none permitted against the other parties.
Several:
utilities went further, arguing that there should l
be no discovery permitted in NRC proceedings as access to the application, the applicant's FSAR and the staff's SER provides' participants with sufficient information to present their case.
Several commenters suggested that the proposed change should not be applied to all NRC proceed-ings suggesting that if adopted it be limited to initial licensing proceedings.
The industry l
wishec to retain the opportunity to engage in formal discovery against the staff in enforcement or license amendmenc proceedings.
The NRC staff supported the proposed rule change, arguing that there are ample means to ascertain i
staff views without engaging in formal discovery.
Staff arguec that the staff position is sec forth in the SER and that staff responses to discovery usually amount to little more than a restatement of; information contained in that document.
In addi-tion disagreements' among NRC staff members are surfaced under the NRC's Policy on Differing i
Professional Opinions and relevant information is furnished under the NRC board notification policy.
Staff noted also that the FOIA is
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currently used extensively by parties in lieu of i
formal discovery to obtain staff documents.
Staff further emphasized that it would continue to make material available and answer questions on an informal basis in most cases.
Staff also argued that it prefiles its testimony which affords!
the other parties ample opportunity to ascertain i
the staff position prior to hearing.
- Finally, staff noted that the parties have the right to make appropriate motions to produce additional j
staff personnel or documents if examination at the :
hearing reveals that information material to issues!
in the case has not been made available.
Staff t
i firmly believes that adoption of the proposed rule l l
change would substantially expedite the hearing schedule, noting that under the present rules 103 L
days are provided for any contested discovery required after issuance of the SSER.
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'Tha Commission 8
l B.
Analysis 1
The decision whether to eliminate the right to formal discovery against the NRC staff requires
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a careful weighing of competing interests.
j Benefits of Eliminating Discoverv A primary benefit of completely eliminating compalsory discovery against the NRC staff is that it would permit scarce NRC resources to be
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devoted to higher priority items such as timely publication of SER and SSERs.
This would, in j
turn, expedite the hearing process where timely publication of SERs and SSERs is on the critical path.
In addition unless discovery against staff I
on SSERs is either eliminated or sharply restricted!
there is no way that the schedule in the proposed I
rule can be met.
As noted in the staff comments i
on the rule, contested discovery could require up i
to 3-4 months.
Most of the discovery e;ainst the staff that would be eliminated by the proposal is in t!te form of interrogatories.
Upon receipt of fater-rogatories, staff resources frequently mus: be diverted from other higher priority efforts.
This l 1s not to imply that every question posed to the staff in interrogatories is burdensome and requireei a reallocation of resources.
Many request iden-i tification and production of documents which can be satisfied with little staff effort.
On the i
other hand, a fair percentage of the questions posed are aimed at probing the review processes of the staff in great detail.
The questioner usually seeks reasoning that 19 not clearly spelled out in the SER or SSER or asks whether or how the staff took into account other facts or expert opinions not cited in staff review docu-ments.
Responding to these types of questions which probe staff's mental processes can require a substantial effort.
For example, in the ongoing San Onofre operating license proceeding staff estimates that approximately 6 man-months were devoted to answering interrogatories.
In certain areas, such as seismology, the staff has a' limited number of experts and to the extent the individual must spend time responding to interrogatories, the individual is precluded
Tho-Commiccion 9
from working on SER chapters on seismic issues to
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be issued in other proceedings. -The result is i
delays in issuance of staff documents and delays in hearings.
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Costs t
On the other hand, Af discovery is eliminated against the staff and staff declines to respond to some discovery, the parties will not have as good a grasp of the reasoning behind the NRC staff position and this could lead to longer cross-examination of the staff at the hearing.
This is because in some cases interrogatories serve as substitutes for hearing cross-examination, and r
because without discovery intervenors can make a better claim at the hearing that some response or document divulged on cross-examination was t
unforeseen and requires further study and later questioning.
Thus the hearing itself will. ot be as efficient, and perhaps the record will not be as complete.
Moreover, without discovery against i
the staff, intervenors may delay decisions whether to drop a given contention until later in the proceeding, and without discovery against the staff, the boards may be more reluctant to grant motions for summary disposition.
In addition, staff would be given a preferential position in the proceeding.
Presently, staff is given longer to respond to motions and to file proposed findings of fact than the other parties are, but is not relieved of any substantial requirement that is imposed on the other parties (other than the fact that it is not required to i
file contentions).
Of course, the staff is arguably in a different position than other parties because of its substantive review responsibility.
j The Commission must also recognize that a major premise of the proposal is that staff will make available pertinent documents on a voluntary basis.
This means that staff will respond to l
telephonic inquiries, wherever.possible, and l
.will ait tr voluntarily _ provide documents relied i
upon to Anta;venors or place in the local public j
document rooms ILFDRs) the material relied upon in generating the SER and SSER.
It is our under-standing that.if discovery is eliminated against
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Tha Commiscion 10 l
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the staff, substantial expansion of the local l
public document room program would be required.
l Currently LPDRs contain only docket-related material, and do not contain generic information i
I or information on plants of similar design.
More sophisticated subgect matter indexing would be j
i required.
However, the NRC now has a toll free 800 number for the LP3Rs, and the LPDR Branch staff could assist inv.ervenors in locating docu-
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ments.
Further upgrading the LPDRs would require i
substantial staff and financial resources.
Staff has informally advined OGC that at a minimum NRC would need to provide each LPDR (we have approxi-mately 100 covering the Part 50 facilities) with j
financing of at least $3,000 per year.
At the present time, financial support has been prcvided to only six LPDRs, although additional funds are i
being requested for the FY 1982 budget.
Addi-l tional travel money would be required to more frequently visit the LPDRs to make sure that
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documents are readily accessible to all intervenors and have not been removed from the libraries.
In addition, staff resources would have to be expended to index the discovery documents before they are j
shipped to the LPDRs.
(Some of the material pre-i viously provided by ELD attorneys under discovery I
is in boxes and has not been indexed.)
Given the resources required to further expand the LPDR collections, it might be cheaper to provide all j
parties to the proceedings copies of the pertinent documents.
This might appear to some though to be a form of intervenor funding.
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I Even upgrading the LPDR's will still not be satisfactory to some participants in the hearing as frequently intervenors may live more than 20 i
miles from the LPDR and will find this arrangement to be unsatisfactory because of the travel time.
Moreover, given the large number 'f staff technical reviewers and the staff practice of relying exten-sively on reviews in prior cases and ceneric technical studies, compilation of a cong,lete collection of documents and studies relid upon in the review is very difficult.
Thus doccment collections are likely to be incomplete de cite staff's best efforts.
""hus sit is the judgment of the NRC legal offices and-boards that.if the Commission decides to change its present rule and preclude discovery against the
The Commission 11 staff, there will be time savings in most cases, but there are also going to be costs.
1 There are a number of options available to the j
Commission.
These include:
(a) maintain the present rule which permits discover'y against the staff, 1
(b) permit filing of discovery requests against l
all parties, including the staff, up until 30 days after issuance of the SER; there-i after, no dise trery will be permitted against any party, unless the board orders that further discovery is essential to developing a complete record (other time restrictions could be proposed);
l (c) eliminate all discovery against the staff; (d) eliminate or limit interrogatories against staff; or (e) provide for some higher standard for dis-
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covery against staff.
In addition, if the Commission decides to change the present rule, it needs to decide to which proceedings the rule would apply.
Options would i
include:
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(a) all proceedings; (b) only to construction permit and operating license proceedings (but not to enforce-i ment, license renewal, or license amendment proceedings); or l
(c) only to impacted plant proceedings (the rule would expire on a set date).
j 2.
Permit the Licensing Boards to I
rule on written motions orallv.
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'The Commission's regulations require the
' licensing boards to prepare written orders on those motions submitted to it in>wri+& g.
The Commission sought comment on a proposed
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i The Commission 12 i
rule which would permit the licensing boards to make oral rulings on written motions l
during the course of a prehearing conference or hearing.
A.
Summary of Comments i
Many of the nuclear industry commenters supported the proposed rule change noting that it could expedite the hearing process by i
enhancing the ability of the licensing boards to rule promptly on motions pertaining to procedural matters.
Most noted though that the time savings would be insignificant.
Several cautioned that if boards are permitted to make oral rulings, they must take care to spell out their reasoning.
Others suggested that the boards should be permitted to make oral rulings, but thereafter should reduce the ruling to writing.
Apparently they did not realize that this approach is already frequently used.
Intervenors, on the other hand, vehemently oppose the rule change because of a concern that they would not promptly learn of oral rulings.
Intervenors frequently limit their attendance at the hearings to the days where their con-l tentions are being litigated, and do not have the resources to purchase transcripts.
The local public document rooms do not receive transcripts on an overnight basis, and fre-i quently do not receive transcripts until two to four weeks later.
Without knowledge of the rulings, intervenors could miss filing deadlines imposed by the boards in oral orders and the period for seeking reconsidera-tion of a board's ruling could expire before intervenors even learned of the ruling.
Intervenors also expressed a concern that the reasoning set forth in oral rulings is not as complete as that in written rulings, thereby complicating appeals.
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The Commission 13
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Analysis and Recommendations j
i OGC, the ASLAP Chairman, the ASLBP, and OELD believe that oral rulings on written motions i
should be permitted where this could expedite the proceeding, or is otherwise appropriate.
- However, because intervenors frequently do not attend all t
hearing sessions and do not purchase transcripts, l
boards should be required to promptly notify all parties that were not present of oral rulings.
There are several means to do so.
The Board could notify the party by phone, it could direct i
one of the parties to contact the absent party, it could serve the transcript pages, or issue a written order.
.We would encourage the boards at a minimum to serve the transcript pages.
A board would have to be careful to fully set forth its reasoning in its oral ruling.
i Although the rule change we are recommending would to a large extend codify existing practice there is an advancage in enacting a revised rule.
l There is some legal question whether under the current regulations un oral ruling on a written motion is legally effective upon issuance of the i
ruling or whether it takes legal effect only upon issuance of a followup written order.
By revising the regulations the Commission could make clear that oral rulings are effective upon issuance.
3.
Prohibit Motions to Reconsider Prehearina Orders.
Under the Commission's current regulations, parties other than the staff may file, within five days after service of a Board prehearing order, a motion requesting the board to l
reconsider its ruling.
Staff has' ten days l
after service of such motion to request reconsideration.
Parties have ten days to file responses.
The Commission sought comment on a proposed rule which would preclude partiea from liling requests for reconsideration on.prahearing i
orders.
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l The Commission 14 A.
Summary of Comments l
l A few industry commenters supported the pro-posed change because it could. marginally ex-l pedite the licensing process, but the pre-
.ponderance of industry commenters and vir-
- tually all intervenors opposed the proposed.
change.
Opponents argued that important mistakes may be prevented at an early stage i
by permitting motions for reconsideration.
7.t was further argued that when such motions a.e I
without merit they can be promptly answere.d and denied, and that the proposed rule would not generate time savings because the hearing may proceed while motions for reconsideration are pending.
It was further argued that it is unclear'how the proposed change would save the licensing board's time, particularly in compari-son with the efforts which would be required should the board be reversed by an appeal board for an error which a party wished to bring to the board's attention.
B.
Analysis and Recom=endations OGC, the Chairman of the ASLAP, the ASLBP, and OELD believe that a modified version of the rule i
should be adopted.
We do not believe that adopt-ing the proposed change would expedite hearings.
If adopted it could actually result in delay of the hearing if an appeal board remands a matter back to the licensing board for further hearings because of an error which could have been cor-rected if motions for reconsideration had been permitted.
There have been circumstances where boards have altered rulings as a result of motions' for reconsideration.
Taking away the board's flexibility is unwise and would produce few benefits.
There are, however., two changes to the regulations that the OGC, the ASLAP Chairman, the ASLEP, and OELD recommend be adopted.
First, eliminate the right.cf the parties to respond to motions for reconsideration and instead provide that no responses will be permitted, unless the board so direrts.
His would mean that notions that on their face hava little merit would be summarily
i LThe' Commission 15 I
dismissed by the board, and parties would respond i
only on those motions that the board believes may c
-have some merit.
The appeal panel on a case-by-case basis frequently follows this approach.
l In addition if motions for recocsideration are filed on prehearing orders admitting or denying l
the admission of contentions, the order is for practicel purposes stayed under present practice l
and the proceeding comes to a halt until replies i
are filed and the board rules on the motion.
We recommend that the Commission adopt an amendment-to the regulation which would provide that filing l
of a motion for reconsideration does not stay the effectiveness of the prehearing order, unless the board for good cause shown decides that an issuance!
of a stay would be appropriate.
This approach j
would be consistent with existing regulations pertaining to petitions for reconsideration of i
final board decisions.
Those regulations provide that neither the filing nor the granting of the l
petition shall stay The decision, unless the Connission orders otherwise.
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4 Permit L'. censing Board Chairman to Rule on Prehearing Matters Without Consulting I
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Other Board Members, j
i The Commission sought comment on a proposed rule l
which would permit the licensing board chairman to :
act alone on prehearing matters.
It would be within the discretion of the chairman to consult l
with the other members on appropriate matters l
before taki6g action.
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i A.
Sucmary of Comments j
There was little support for this proposal.
A few l industry commenters supported the proposal noting that it would enhance the ability of licensing boards to dispose promptly of procedural matters,
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and would probably only formalire what is already common practice.
liumerous argtunents were advanced by the opponents of the prnposed change. 'Some argued that it vould !
be a serious error to allow the chairman to act i
alone in issuing substantive orders on prehearing
Th3 C:mmiccion 16 matters such as ruling on contentions and motions for summary judgment.
The prehearing orders set the framework for the hearing and input, from the technical administrative judges should be heard.
Others commented. that centralized decisionmaking i
may be appropriate in times of crisis, but is not i
necessary in-licensing proceedings.
Some expressed i
a concern that the chairman would consult with the I
members, find that they disagreed with his/her position, but nonetheless issue an order reflect-ing his/her opinion.
It was pointed out this would be particularly troublesome if the Commission were to adopt the proposed rule prohibiting filing i
of motions for reconsiderstion on prehearing I
orders.
Others argued ~ that it was inconsistent with Congress' intent in establishing three member i
panels to preside over NRC hearings.
Arguments were also made that the proposed change would create dictatorial rule.
B.
Analysis and Recommendations Under the Commission's regulations, 10 CFR 2.721(d) and 2.718, when a licensing board is not in session, the chairman of the board is vested with the power, inter alia, to rule on procedural requests.
This would include ruling on intervention petitions, contentions, motions for summary judgment, requests to compel a party to respond to interrogatories, and requests for extension of time.
In practice though, the board chairmen do not rule alone on petitions for leave to intervene, contentions or motions for summary judgment, as technical input is frequently essen-1 tial in ruling on such motiens, j
Upon reflection, OGC, the Chairman of the ASLAP, I
the ASLBP, and OELD do not believe that the present regulations require modification.
Under the current regulations, board chairmen will continue to consult with the technical members on those proce-dural matters where technical input would be beneficial, and the collegial board vill rule on intervention. petitions, admissibility of contentions, and 2 notions for summary judgment.
On balance, we believe that the line betuusn collegial and chairman actions is presently drawn in the right place.
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The Commission 17 j
l 5.
Eliminate the Right of the Acolicant l
to File a Recly to Other Parties' Pro-j posed Findings of Fact and Conclusions l
of Law.
UndertheCommission'scurrentregulations,unlessI otherwise directed by the board, the applicant musti file his proposed findings of fact and conclusions of law within 20 days after the record is closed.
The filings from the other parties, except the staff, are due 30 days after the close of the record.
Staff's filing must be filed by day forty.
The applicant must file his reply within ten days after service of the other parties' filings.
The Commission sought comment on a pro-posed rule which would eliminate the right of the j
applicant to file a reply submittal.
A.
Summary of Comments A few intervenors supported the rule change noting,
that applicant should be given only one opportunity; te set forth their views and that the licensing board is capable of making its findings without having a reply finding from the applicant.
An intervenor in the Jamesport proceeding noted that applicant's reply filings were a rehash of their initial filing and therefore a waste of time.
Anotherintervenornotedthatallthereplyfindink accomplishes is providing more work for attorneys j
which ultimately increases ratepayers costs.
j Most commenters, including several intervenors, opposed the change.
The industry strongly opposed l l
it.
The industry argued that since the applicant bears the burden of proof, it seems inappropriate t give the NRC staff the last word.
Applicants desir' the opportunity to respond to intervenors' filingsi and particularly those of the staff.
Industry l
argued that reply findings focused the' disputes I
between the parties and permitted prompter resolu-tion of the issues by the board.
Intervenors such as UCS and NRDC opposed the change for the latrer reason, indicating that if the applicant did not have the opportunity to. reply, more work would l
hur+ ro be done by the board.
They also argued that the quality of the licensine board decision might be adversely affected.
Tihally, industry i
The Commission 18 i
commenters noted that if the applicant wished to expedite the proceeding, it could waive the l
opportunity to file a reply pleading.
l Some commenters suggested that the Commission adopt an alternative approach, which would require l
all parties to file initial proposed findings of f act at the same time and then permit all parties to file reply findings.
i i
B.
Analysis and Recommendations i
t OGC, the Chairman of the ASLAP, the ASLBP and i
OELD believe that because the applicant has the I
burden of proof it should be given an opportunity to file a reply to the other parties' findings.
since only ten days is provided for such replies, j
permitting the reply filing does not result in a substantial delay of the proceeding, and might, in fact, expedite the time required for the licensing j
board to issue a decision because it helps identify :
and focus the disputes.
We believe, though, that
{
some change in the present regulations should be made.
We are recommending that all parties to the pro-ceeding, except the staff, be required to file i
their proposed findings within 30 days after the record closes.
This would give the applicant ten j
days longer than the present regulations provide.
In most cases the present 20-day period has proven to be inadequate and the board invariab1v has
?
given the applicant more time.
Thus the proposed i
change would make the regulations more realistic.
There is also no reason why parties other than the staff should have the opportunity to review
(
the applicant's proposed findings before filing their submissions.
We are proposing that parties other than the staff file at the same time that the applicant does.
The staff's filing would be j
due on the 40th day after the record closes.
j This will permit it to examine the other parties' i
filings and submit filings that reflect its view of the public interest.
The applicant's reply submissions would be due five days after the staff submission.
Staff would hand serve its filing on applicant's counsel in order to give j
applicant time to review the staff document before j
submitting its reply.
This proposed approach would reduce the period for filing proposed find-ings from.50 days (the present regulations, assuming )
2md. service of staff's proposed findings on the
)
applicant) tz> 45.
i Tha Commission 19' t
The present regulations give the boards the l
authority to alter the time limits for these filings.
The board should retain the discretion l
to alter the limits to fit the proceeding.
In cases with few contentions and brief hearings the schedule could be expedited; in more compli-cated cases more time may be required.
6.
Eliminate Reouirements that Motions for Summary Judgment be Subnitted n.
ater than 45 Davs before the Commencement of the Hearing.
l l
Currently, parties to proceedings must file any
?
motions requesting summary disposition at least 45.!
days prior to the start of the hearing.
The l
would permit motions for summary disposition to be ;j Commission sought comment on a proposed rule which filed at any time.
However, the board would be authorized to set appropriate time limits for the l
filing of such motions which would be tailored to fit the circumstances.
A.
Summary of Comments I
l Most commenters opposed this proposed change.
The '
industry was divided on the issue.
Some industry r
commenters favored the proposal, stating that it would provide greater flexibility in the use of these motions and would not impair the hearing l
process.
l However, a large number of industry commenters and '
virtually all intervenors opposed the proposed j
change.
The major arguments advanced against the proposal are that if there is no genuine factual dispute which exists on a particular issue, a competent attorney should recognize that well before the hearing, and that late filed motions actually disrupt and delay the hearing.
It was frequently noted that most motions for summary l
disposition are filed against intervenors, who generally have limited resources.
Responding to smimary disposition motions requires a substantial '
effort and intervenors ' lack the resources to
- prepare responses to motions filed -just before the i
hearing or during the hearing itself because their limited.recources are devoted. to preparing testi=on or preparing to cross-er=+ me.
It similarly
The Commission 20 J
distracts the applicant and the staff, as well as the licensing board, which must rule on the 1
motion.
Several commenters suggested that if the boards are given the discretion to permit such motions to be filed less than 45 days prior to the commencemen of the hearing, they should be directed summarily to reject motions which unduly divert parties' resources away from the hearing.
Another suggested approach would be to provide the parties more than l the 20 days set forth in the regulations to respond l to such motions.
)
B.
Analysis and Recocmendations OGC, the Chairman of the ASLAP, the ASLBP, and OELD believe the current requirement is too inflexible because there may be circumstances where motions should be permitted to be filed within 45 days of the start of the hearing.
We therefore believe the proposed rule should be adopted, but that the Commission should stress that the boards are encouraged to set appropriate time limits for filing such motions and should i
i summarily dismiss motions filed right before the hearing or during the course of the hearing which would unduly divert the other parties' resources or delay the proceeding.
l We also suggest that another change in the regula-l tions be adopted pertaining to filing of summary i
disposition motions.
Currently, the regulations provide that parties have twenty days to respond i
to a motion for su= mary disposition.
The regula-l tions also provide that following the submission i
of the responses, the board shall permit the opposing party an opportunity to file a second
)
pleading responding to new facts and arguments preo sented in the responses, which were not presented in the papers of the moving party. 1/
The pre-siding officer is to establish appropriate time 1I In simple terms this means that if the applicant files a motion for se ma y judgment against an intervenor, staff and the inter-venor.have twenty days to file a response.
Intervenor may also file a subsequent response which addresses any new arguments raised in.the staff pleading.
,~
j Thi C:mmiccion 21 1
limits for such pleadings.
We suggest that in lieu of the board's deciding on an ad hoc basis i
how much time for responses should be provided, a ten-day response period should be provided.
This would save the board time.
III.
Comments on the Proposed Hearina Schedule i
Most commenters chose to focus on the six proposed rule changes rather than on the proposed hearing schedule.
Generally, the public interest commenters opposed i
the schedule, arguing that with their limited resources they could not meet the proposed schedule.
More specifically, there were objections to having discovery on the SSER end and revised contentions filed on the same day (day 25).
Intervenors argued that after discovery ends several days should be provided to file revised contentions, and that it is unreasonable to expect that revised contentions be filed the very same day that one might receive responses to a discovery request.
It was also argued that holding a prehearing and settlement conference 40 days after the SSER is l
published is too soon becaase 40 days was not a sufficient time for the intervenors to examine i
seriously the issues and de termine whether settlement was appropriate.
Others argued that the time limits for discovery were inadequate.
Some suggested that the Commission not adopt a hearing schedule, even if it was only a guideline, because the schedules will differ substantially from case to case based on the number of intervenors,;
number of contentions, and the complexity of the issues.
The industry commenters on the other hand suggested that the hearing schedules could be compressed, especially if the Commission were to raise the threshold for admission of contentions.
Others suggested the' hearing should be compressed further by eliminating discovery, having revised contentions filed earlier, have the licensing board rule from the bench at the prehearing conference on any revised contentions, and by reducing the 65-day period provided for the' licensing board to issue
.its ' initial decision.
1 1
The Commission 22 1
One industry commenter doubted, though, that the taking of testimony could be completed in 45 days as contemplated in the proposed schedule.
l Another stated that the schedule would not'be _
appropriate for antitrust hearings and that the Commission should develop a schedule for such proceedings.
Others noted that the~ proposed i
schedule would also not be appropriate for processing applications for waste disposal i
facilities.
l Several commenters noted that discovery on the SSER should begin only after revised contentions are filed and admitted into the proceeding.
They i
did not believe it was meaningful to engage in discovery on the SSER prior to the admission of revised contentions.
Several -industry commenters apr' aded the statement in the Fedrial Register notice which stated that early hearings on dis-crete issues addressed in SER's will be required, unless segmentation of the hearing would clearly be counterproductive.
They felt that adoption of such a course was essential if hearings were l
to be completed on a more timely basis.
Other industry commenters attacked the prepa^ed i
schedule, noting that it began with issua.-
of i
the final supplemental SER.
They felt that this l
was rather late in the process and the timetable should begin much earlier.
It was suggested that j
staff be required to prepare its SER in a more timely fashion and that everytime staff is not able -,
to meet a projected schedule date the Commission i
should be informed.
Several commenters argued
(
that because generally no new information is l
presented in an SSER there should be no discovery on the document and intervenors should not be permitted to file revised contentions following its issuance.
i B.
Analysis and Recommendations The proposed senedule can serve as a guideline i
only if no discovery is permitted on SSERs.
The
~25-day period following issuance of the final SSER required for filing discovery requests,
)
. receiving responses, and filing revised contentions !
may'be unrealist::.c.
l 9
.n,,
0 i'
,'W,-
f e,
I,
' - - The Commission,I' n %
)'.
1 23 i;;
s The Commission should also recognize that in pro-
'ceedings involvieg large numbers of intervenors or./ contentions, it is unlikely that. the. hearing
]
)' itself will only take 45 days.
We he e not pre-4 r(p'ared a revised proposed schedule.
We will do so after1the Commission decides how it wishes to i
e handle Jthe issues r.aised by this rulemaking.
We bell' eve'that, whatever is decided, some schedule i
should be included in the statement of considera-tions with the caveat that it is offered only as i
.4 s " guidance and that the facts of a given case may l
y
>Vt
. call for it to be shortened or, if necessary in 7
. the interests of fairness'or thoroughncss, length-D.
'l '
aned, to suit the circumstances.
i l
IV.
Alternative $
3xpedite the Process j
i A large number of ce rs used the invitation
.c to comment on the proy._,d changes as a means to t
f(/":"
suggest alternative nethods of expediting the licensing process.
We will briefly summarize the more significant proposals.
i l
^
- The UCS and NRDC suggested that the NRC staff should be directed. co issue its staff documents i
within one month of publication of the notice of l
hearing; the applicant should make available all j
information pertinent to the application at the l
time it files its application; and the parties should be required to identify their witnesses at an early date.
The NRC would then sponsor depositions of each of these witnesses.
The l
latter proposal is particularly troublesome from a logistical standpoint.
Also Congress has man-l dated that the NRC not fund intervenors.
Since intervenors would not be paying for the depost-l tions, it could be argued that NRC would be funding the intervenors.
The industry suggested that the Commission adopt a l
number of proposals almost all of which are l
currently under Commission consif.eration:
j (1) reinstate the immediate effectiveness rnle; j
(2) revise the threshold level for the admission l
of contentions; (3) issue a. policy statement j
directing the licensing ' boards to better manage
)
I I
l l
l l
F n- (,-
The Commission
'24
<~
i the proceedings; (4) direct staff to meet its
. projected schedules on issuance of staff documents, and require staff to report to the Commission failures to meet projected schedules; (5). eliminate l
the rule which permits intervenors to cross-examine on another intervenor's contentions (this has been rejected by the Commission); (6) preclude the l
board! from raising issues sua sponte; (7) avoid i
considerations of financial qualification issues in the hearing; (8) avoid consideration at the OL stage of, issues such as alternative sites, alternative energy sources, need for power, etc.;
and'(9) adopt the NUREG-0737 " requirements" as rules.
l The industry also strongly urged the Commission to seek legislation which would permit the Commission to issue full power applications prior to the i
completion of the adjudicatory hearing.
The Department of Energy also endorsed this approach.
Other suggestions include: (a) staff not be a mandatory party to the proceedings (staff would j
issue a FES and SER but would appear as witnesses i
only at the request of the board); (b) litigation of issues at the OL stage that were raised at the a
construction permit hearing be precluded ( this -
poses legal difficulties because the parties in the two proceedings might not always be identical; l
in addition, there is usually new design informe.-
tion at the OL stage); (c) the Chairman of the l
Commission (or e Commissioner) meet with the EDO and the Chief Administrative Judge, ASLBP, twice i
a week to discuss licensing schedules; (e) the Commission adopt rules making it more difficult for the board to grant late petitions to intervene;
}
and (f) the Commission rewrite its Rules of l
Practice -- 10 CFR Part 2.
i
)
4 d
S Cs
.x tu y y.
c Leonard'Bickwit, Jr. 4 i
l General Counsel l
l DISTRIRU10N:
'Cautissioners Commission Staff Dffices Exec Dir for Operations ASLBP
.ASLAP-Secretariat l
.