ML20003D630
| ML20003D630 | |
| Person / Time | |
|---|---|
| Issue date: | 02/23/1981 |
| From: | Dircks W NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| To: | Ahearne J NRC COMMISSION (OCM) |
| Shared Package | |
| ML19247D875 | List: |
| References | |
| FOIA-81-104 NUDOCS 8103270927 | |
| Download: ML20003D630 (9) | |
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A UNITED STATES Abtachment 2 I g NUCLEAR REGULATORY COMMISSION
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February 23, 1981 e
MEMDRANDUM FOR:
Chairinan Ahearne FROM:
William J. Dircks Executive Director for Operations
SUBJECT:
IMPROVEMENTS IN THE LICENSING REVIEW PROCESS This'is in re:ponse to your memoranda of February 10, 1981, " League of Women Voters" and of February 13,1981, requesting information which generally deals with the sJbject of possible changes in the licensing process for nuclear power reactors.
.c We have included background infomation prepared by OELD which we believe is responsive to your questions regarding the concerns expressed on February 4, 1981 by a League of Women Voters representative. This background, in turn, will better place in. context our response to item number 4 in your February 13 memorandum on proposals to expedite the adjudication process.
Suggestions which the Commission may wish to consider (within the framework of existing ~
legislation) in that regard follow the general background discussion.
(Questions numbers 1-3 in your February 13 memorandum will be addressed at the briefing on NRR licensing schedules which is set for February 26.)
BACKGROUND Under the Atomic Energy Act, section 189a., any person whose interest may be '
affected by a nuclear powerplant licensing proceeding may become a party to the proceeding by filing a petition to intervene with the Commission.
In the case of nuclear powerplant construction permit applications, the holding of a hearing is mandatory under the Act even if no person requests a hearing.
' Ir. the case of operating license applications and applications for amendmentst to construction permits and operating licenses, a hearing is held when requesteid by a person whose interest may be affected.
Under the Act these hearings are trial-type in nature, that is, adjudicatory #
i type hearings that must be conducted in conformance with sections 5, 7 and 8 oftheAdministrativeProcedureAct(APA). The APA affords parties a number of procedural rights, including the right to offer evidence and to conduct such cross-examination as may be required for a full and true disclosure of the facts. The APA also directs agencies to conclude matters before them within a reasonable time, but with due regard for the convenience and neces ~
sity of the parties or their representatives, and to base licensing decisions only on the record of the proceeding, including the transcript of testimony and exhibits.
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s The formal procedural system, established by these statutory provisions and -
implemented in the Commission's Rules of Practice in Part 2 now offers the l
principal.means for public participation in the Commission's licensing process.
Interested persons have a statutory right to participate, to have :.-
reasonable opportunity to make their views known, and to have their views i
taken into account by the Commission.
Of course, the final decision rests.-
l with the Commission and no party has the legal right to dictate to the i
Commission what the decision should be on arty issue, wheether substantive or &
pixedural.
In addition, under section 102(2)(C) of NEPA, the Commission has the legal obligation to seek comments on major licensing actions with significant envirorsnental impact from certain Federal. State and local agencies.
Here' again, though, the final decision rests with the Consission. NEPA does not require that any particulkr comment be adopted or rejected.
Thus NRC licensing of nuclear powerplants is subject to a statutory regime ~ l which establishes a broad test for " standing" to request a hearing, requires -
trial-type hearings to resolve contested issues which may encompass radio-logical and conunon defense and security matters under the Atomic Energy Act -
as well.as a wide variety of environmental matters under NEPA..
Understandably, a body of law has. evolved which our procedures must satisfyt if they are to pass muster with the courts.- The procedural re Part 2 and in Par't 51 (for NEPA) have been developed in light'quirements in" of both praca-tical considerations as well as legal constraints.
For example. Part 2 was restructured in 1972, after exhaustive consideration with the objective of expediting proceedings without sacrificing the fair and impartial-consideras.
tion and adjudication of issues.
' Within the ' framework of existing law and the basic structure of the Ru'les
.of Practice, the Commission has considerable flexibility to again change the-process as it now exists. Any such changes necessarily involve questions as..
to what, beyond adjudicating the contested' issues raised by the parties to a' FMing, the Commissica wishes the role of the presiding boards, and
, - therefore the purpose of the hearing process, to be.
1 Under the existing rules, it is clear that the role of presiding. boards goes beyond adjudicating matters which are placed in controversy by the parties. - '
In both CP and OL proceedings, presiding boards under the rules now have a --
responsibility which goes beyond deciding the contested issues raised by the r parties.
Whether or not the rules should be' changed on such matters depends-.;.;
on what role the Commission wishes to bestow on presiding boards.
In addition to the legal constraints applicable to the adjudication of contested issues, and the policy flexibility which the Connission has in assigning other than an adjudicatory role to its presiding boards, there is another practical constraint involved in the realistic consideration of proposals to expedite the adjudication process. This is the limitation of
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available resources.
On the one hand, changes which would release committed resources, such as by narrowing the scope of the adjudicatory process, sould be a distinct plus (from a resource standpoint). On the other hand, some proposals ~, suci as rulemaking, would require the additional commitment of resources which may not be immediately available.
Other suggestions to expedite the adjudication process, such as the comencement of a hearing within a specified number of days after ccepletion the staff's reports (Safety Evaluation Report (SER) or Environmental Impact Statement (EIS)),
would impose certain additional burdens on the Staff (and other parties).
Before listing specific procedural-type items that have potential for expe-diting the adjudication process, let me say that I agree completely with your observation (February 10,1981 memorandum) that we should try to have more' informal meetings at which issues can be discussed and, hopefully, resolved without subsequent adjudication. There is no doubt in ny mind that such meetings could save time and resources, and.would probably be of greater:
informational valu.e to interested citizens.
The staff has had a productive informal public meeting in Nebraska which
' resulted in the petition for rulemaking by the Citizens Advisory Comittee for Omaha and Council Bluffs -(SECY 80-548). The earlier experience with public meetings in Arizona on the Palo Verde reactors 3 and 4 (the appli-cations for which were subsequently withdrawn) probably was less productive than the one in Omaha.
Even with this mixed experience, the success of the Omaha meeting demonstrates the potential value of informal meetings when the circumstances (e.g., public concerns on discrete issues) are favorable. The value of such meetings, however, needs to be balanced against the resource and cost commitments of holding them near the reactor site.
(The NRC does have an open meeting policy which applies +.o meetings on applications regard-less of whether they are held in the vicinity of the site or elsewhere (see 0 pen Meetings and Statement of NRC Staff Policy", 43 Fed. Reg. 28058;-
June 20,1978)). As you may recall, recomendations to carry out the objec-tive of. holding informal meetings in the vicinity of the site were made in
" Nuclear Power: Plant Licensing: Opportunities For Improvement" (NUREG42g27' June 1977, the so-called "Denton Report"). The Commission approved these
' reccamendations and this in turn led to the meetings held in Arizona and Nebraska.
I certainly agree that we should make an effort to build on this experierice. To the extent that issues are resolved informally before the required adjudicatory proceeding, this obviously eliminates or reduces the number of issues which would require adjudication and that in turn should save time and resources.
POSSIBLE CHANGES l
It is with this background that I offer the following items which the Commis-~
sion may wish to consider as measures to expedite the adjudication process.'
These items are clearly contreversial and have both advantages and disadvan-tages from a public policy standpoint. They do, however, have potential for decreasing delays in the hearing process. As we have suggested,'some of thern
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]qchairman.Ahearne are resource dependent and.others depend on the role the Comunission wishes, as a metter of policy, its presiding boards to perform.
To the extent that the Commission wishes to consider further any of these itans, we are prepared..o to furnish an appropriate refinement and analysis together with estimates of a the time. savings involved.
. The items which the Commission may wish to examine are as follows:
Restore the immediate effectiveness rule to the extent that -
it has been suspended in.the licensing of nuclear power reactors by Appendix B to Part 2.
Appendix B procedures, realistically, probably would add at least 10 to 12 weeks to the time for an effective decision which authorizes the issuance of a license.
Reiterate a firm policy on expediting cases.M i
. JJ In The Statment of Considerations which accompanied the restructured _.-
Rules of Practice, the Constission said (37 Fed. Reg.15127. July 28
.._. 1972}
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"The Commission is concerned not only with its obligation to the segment of the public participating in licensing proceedings but also with a responsibility to the general public--a responsibility to arrive at sound decisions, whether favorable or unfavorable to any particular party, in a timely fashion. The Coneitssion expressly recognizes the positive necessity for expediting the decisionmaking
. process and avoidir.g undue delays.
It expects that its responsi-bilities under the Atomic Energy Act of 1954, as amended, the National Environmental Policy Act of 1969 and other applicable statutes, will be carried out in a manner consistent with this policy in the overall public interest."-
"The Statement of General Policy and Procedure (10 CFR Part 2. Appen-c-dix A) on the conduct of hearings for the licensing,of ruclear power plants now states:
"The Statement [of General Policy and Procedure] reflects the.
Conurission's intent that such proceedings be conducted expedi-tiously and its concern that its prWures maintain sufficient.T flexibility to acconnodate that objective. This position is founded upon the recognition that fairness to all the parties in such cases and the obligation of administrative agencies to conduct their functions with efficiency and economy, require that Commission adjudications be conducted without -
(Continued)
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Amend the discovery rules.
Although the existing nles do not provide a schedule for the completion of discovery, the i
Statement of General Policy and Proced.ure (Appendix A to Part 2) states explicitly that:
"In no event should the parties be pemitted to use discovery procedures to conduct a
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' fishing expedition' or to delay theproceeding."
Discovery is expected to be completed by the second prehearing conference-
"except for good cause shown". Typically, discovery probably l
postpones the start of the hearing.
. The Consnission could require a discovery schedule to be adhered to, absent a showing of substantial prejudice to an affected party, so that the start of the hearing would not be delayed.
It should be noted that most staff doctanents are publicly available pursuant to current p icy and practice and others can be sought under.the FOIA t
' JJ (Continued) unnecessary delay. These factors take on added importance in 7 nuclear power reactor licensing proceedings where the growing-national need for electric power and the companion need for pro-tacting the quality of the environment call for decision making which is both sound and timely. The Commission expects that its responsibilities under the Atomic Energy Act of 1954, the National Envirorsnental Policy Act of 1969, and other applicable statutes as set out in the statement which follows, will be carried out in a
.. manner consistent with his position in the overall ;wblic interest"..
More recently, the Commission-has noted (Miscellaneous Amendments to its Rules of Practice. 43 F.R.17798 and 17801. April 27,1978) that it tis " committed. to developing a hearing process which will produce dect-J:...
.sions in a timely fashion" and referred to its " responsibility.to the
. general public to arrive at sound licensing decisions in a timely fashion."
2f The current discovery rules include special provisions (i 2.720 (h))
to provide reasonable insulation from discovery in NRC proceedings of.
"the Commissioners and named NRC personnel" other than staff witnesses 2 designated by the EDO.
Upon a showing'of " exceptional circumstances" a~ < '.
l presiding officer may require the attendance and testimony of named NRC.
l personnel other than those designated by the EDO.
(Continued)
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Establish, at least as a goal, that normally hearings will start within thirty days (or some other specified interval) after the pertinent staff docaents are available. Some
" years ago this was the targeted goal which was in most instances ~.:
met by presiding boards.
- Encourage presiding boards to meet ths guideline for rendering 7 o
. timely decisions.
Appendix A to Part 2 provides that the Commission expects that " ordinarily a boartl will render its initial decision -within 35 days after its receipt of proposed-findings of fact andynclusions of law filed by the parties in a contested case.
Typically, presiding boards do not meet this guideline.
If the Commission should decide that the role of the boards in a contested proceeding is essentially only to decide matters.placed in controversy by the parties, the Rules of Fractice could be revised either to restore the " extraordinary" standard for boards to raise issues sus sponte or to eliminate the board's sua sponte role in contested proceedings.
to intervene to set forth (not later than fifteen days prior to the holding of the special prehearing conference called for in i 27751a.) the basis for each contention with reasonable specificity. 'Although this requirment has been upheld
,iudicially)fB.P.I. V. A.E.C., 502 F.2d 424, 426-42g(D.C.
Cir., Ig74 ), it has in effect been arguably read out of the rules by the Appeal Board.
(SeeHoustonLight&PowerCompany 2/
(Continued)~
.These provisions were included in the rules of practice to provide-a
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reasonable accommodation to the needs of interested. parties in having some discovery access to the staff, but without having uncontrolled requests which would be disruptive and detrimental to the on-going conduct of NRC business (such as the preparation of the SER and EIS l
Recent events suggest that the content and purpose of these special provisions may need reiteration or strengthening.
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Prior to the restructured rules, Appendix'A to Part 2 established..
the goal of an initial decision within 45 days after the boards
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receipt of the proposed findings of fact and conclusions of law.
(37 Fed. Reg. 15127,15128, July 28,1972).
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- i AChaiman.Ahearne 7-(Allens Creek Nuclear Generating Station Unit 1), ALAB-590, 11 NRC 542 and ALAB-629 in which, by a divided vote, an Appeal Board reversed an order of a licensing board which
- denied a petition to intervene and litigate the issue whether-the construction and operation of a marine farm is both a
. viable and environmentally superior alternative to Allens Creek.)
Adopt a rule restricting participation by a party to those issues raised by the party's own admitted contentions. Com -
mission precedent provides to the contrary.
See Northern States Power Company (Prairie Island Nuclear Generating Plant Units 1 & 2), CL1-75-1 NRC (1975) and ALAB-244, 8 AEC 857, i
867a68(1974).
Under these holdings, an intervenor may cross-examine wit-nesses on issues not raised by the intervenor if the inter-venor has a discernible interest in resolution of those issues.
In its decision affirming the Appeal Board's holding in this regard, the Commission cautioned that licensing boards ~
must carefully restrict and monitor such cross-examination, however, to avoid repetition. Nevertheless, much time is spent ~
in current hearings on repetitive mund-robin cross-examination ~'
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by each participating pa'rty.
Provid for the summary disposition of issues at any time during a proceeding, either on motion by a party or by a
' presiding board ruling sua sponte that there is no issue to be heard.
Presiding boards should fully use summary disposi-
.. tion authority in regulating the course of hearings so that hearing time is not used for issues about which no genuine issue of material fact is in dispute and therefore need not be litigated any further.
'Use an Administrative Law Judge (ALJ) instead of a th... person licensing board to conduct hearings and render initial decisions; ~
No change in the Atomic Energy Act is required.for this te be done.
Use of an ALJ would be consistent with a policy deterui-nation that the purpose of a hearing is to resolve contested issues raised by parties to the proceeding.
Limit the notification procedure to presiding boards to material which is relevant to admitted contentions. ~ In view of the sua sponte role of these boards, the notification procedure presently covers material which goes well beyc.nd ' -
matters in controversy in the hearing.
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.f.Chaiman Ahearne -. l Establish a higher threshold before ordering a hearing to be held if a hearing is not otherwise required by law.
If a hearing is nevertheless held as a matter of Cesarission discre-tion, the hearing could be of a legislative or hybrid-1;ype l
rather than adjudicatory.
This would conserve resources for l
those' adjudications which are required by applicable law or for other regulatory purposes.
increase use of rulemaking to resolve or provide guidance on generic issues so that recurring issues will not have to.be
. adjudicated repeatedly in individual licensing iwmdings.
This was one of the recommendations in the "Denton report "
Progress on its implementation after March 1979, has been interrupted by resource constraints.
IG noted in SECY 79-299, April 27,1979, the Counission may-detemine that the requirement for a demonstration of finan--
cial qualifications should~be eliminated or that the curmnt scope of the financial qualifications review is excessive in some respects.
Either approach could be accomplished by
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As noted in SECY-81-69 January 27, 1981, rulemaking should be initiated to preclude, in the absence of new cnd signifi-cant information, the reconsideration at the operating license stage of need for power and energy alternatives.
.The Consnission could place greater reliance on State assess-i ment of need for power, energy conservation, and alternative energy source analyses to assist in the fulfillment of NRC's NEPA responsibilities.
(SeeSECY81-69). ~
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If the Commission should decide to confine the scope of adjudicatory pron-
, ings to those contested issues which the law requires to be adjudicated..theg.-
process could be expedited under existing law without sacrifice af basic elements of fairness to all parties.
In addition to a reduction in licensing l
time, staff resources would be conserved. These resources in turn could be devoted to those matters which are properly at issue, or to other regulatory priorities, such as the timely production of the staff reports needed for ther licensing process (SER's, supplements thereto, and EIS's)--with a resultant T '
overall benefit to the public health and safety.
t Aside from the steps outlined above, the basic structure in the Rules of Practice provide adequate procedural tools and authority for the conduct of...
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I adjudicatory proceedings.
Presiding boards, of course, must use the proce--
t dural devices available to them to regulate the course of the hearing and -
produce a decision without. unnecessary delay.
l M WHliam 1 Dhn h William J. Dircks Executive Director for Operations cc:
Commissioner Gilinsky Commissioner Hendrie Comissioner Bradford
- H. Shapar L. Bickwit E. Hanrahan' H. Denton 2.
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