ML20003D633

Submits Recommendations Re Scheduling,Personnel Resources & Hearing Mgt for OL Proceedings.Panel Must Obtain Exemption from Hiring Freeze for Two Recently Appointed Chairmen

ML20003D633
Person / Time
Site:	Byron, Pilgrim, Susquehanna, Summer, Turkey Point, South Texas, San Onofre, Midland, Zimmer, 05000510, 05000511, Bailly, Marble Hill
Issue date:	02/25/1981
From:	Cotter B Atomic Safety and Licensing Board Panel
To:	Ahearne J, Bradford P, Gilinsky V NRC COMMISSION (OCM)
Shared Package
ML19247D875	List: ML19247D874 ML20003D429 ML20003D630 ML20003D631 ML20003D632 ML20003D633
References
FOIA-81-108 NUDOCS 8103270947
Download: ML20003D633 (33)

Text

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UNITED STATES 8

NUCLEAR REGULATORY COMMISSION

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fN ATOMIC SAFETY AND LICENs!NG BOARD PANEL acMent 5 WASHINGTON.DA 20365 O-February 25, 1981 MEMORANDUM FOR: Chairman Ahearne Comissioner Gilinsky Comissioner Hendrie Comissioner Bradford FROM:

B. Paul Cotter, Jr.

Chief Administrative Judge, ASLSP

SUBJECT:

WORKLOAD, RESOURCES AND RECOMMENDATIONS I.

INTRODUCTION We have concluded from workload and scheduling analyses in January of this year that 42 of our 62. active proceedings could go to hearing in the next 12 months. As a result of our analyses, it is clear that to meet this work-load, certain actions must be taken with respect to scheduling, personnel resources, and. hearing management. This memorandun sets forth the ASLBP's l

recommendations.

A.

Background

1.

Staffing

' As you are aware from my February 20, 1981, status report, the Panel is presently un'derstaffed in comparison with the full staffing level of 1975.

This circunstance trose as a result of a variety of factors that were of a transient nature.

It should be noted, however, that since the Panel assumed e

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Comnission ' 2/25/81 its present form in Koveniber 1972 and began to staff up early in 1973, the j

average length of service for all full-time Panel members is 4.2 years.

Many.of those who left did so because (1) they did not wish to spend pro-tracted amounts of time way from their families at lengthy hearings, or (2) because they did not like sitting in a Panel of three membecs, or (3) because they had reached retiremen# age relatively shortly after they came on the Panel. Many of those interested in joining the Panel are either reTa'tively young (and thus more transient) or are career civil servants i

nearing retirement.

It has become increasingly difficult to obtain quali-fied Pane 1 members, not only for the foregoing reasons, but also because of the pay cap.

2.

Proceeding Management

The fundamental fact.in judicial management of multi-party proceedings.is that it is extremely difficult to get a mnber of parties in one place at

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the same time. That difficulty is recognized not 'only in NRC rules govern-

'ing licensing procedures but also in the rules governing complex proceedings l

in other administrative agencies.

In our rules, for example, there are only a few sections requiring action by the parties within fixed periods of time, and all these are subject to the requirement of flexibility in administra-I tive proceedings.

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f Connission. 2/25/81

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The difficulty in managing licensing proceedings is compounded further by provisions authorizing intervention by interested parties, many of whom are not represented by couns'el, do not possess resources adequate to manage litigatice, and may well never appear before a board again. Because such parties are entitled to full administrative due process under' the Adminis-trative Procedure Act, the rule of flexibility is even broader in scope.

In addition, boards do not have final authority over a major party, the Connission staff, in scheduling dates for the submission of docunents and taking other actions required by that party.

Finally, other factors add to the difficulty of managing licensing proceedings. Examples include delay in the construction. of a facility and Connission action in imposing new l

hearing requirements resulting not only from events such as TMI but also

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from changes in the current state of the " art."

7 T'he foregoing factors point to the principal reasons dy licensing proceed-1

,ings do not lend ~themselves to absolute predictions of the time between the l

appointment of a board and the issuance of its final initia1 decision.

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' Connission - 2/25/81 3.

Decision Writing The first task in preparing a decision is to review the record.

In a recent case, Pilorim Nuclear Power Station, Unit 2, the record, compiled during 66 l

' days'of hearing, was comprised of 12,000 pages of testimony and 128 exhibits of several hundred pages.

Generally, the record review is divided among the three judges. Some parts of a transcript can be read quickly; others have j

to be studied intensively to cover points not well developed at the hearing.

Complex technical issues, can require a full day to read and understand a single day's transcript, normally 220 to 320 pages. Next, the decision writers study the briefs and proposed findings of the parties.

In Pilorim l

l these totaled 800 pages.

In a major decision this preliminary work can take a minimum of several weeks.

l On the basis of their review of the record, the judges select the most difficult issues to~be' decided. The issues cover matters of vital concern:

health and safety; the varied impacts of a nuclear reactor on a connunity;

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the effects and ramifications of possible malfunctions; and 'the effects of construction and operation on the environment. Memoranda -on these matters are prepared; conferences are held; and tentative decisions.are reached.

Then issues are assigned to each judge to prepare a draft decision. This stage two process takes one to three weeks.

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e Comission. 2/25/81 Further conferences are held at which the drafts and decisions on specific issues are considered. Absolute accuracy and precision are needed in this work, and sound judgmen't is attained only after deliberation on issues such as.the technical qualifications of the applicants to build and operate a nuclear plant, seismology, and specific engineering issues such as steam

' generator tube integrity.

In Pilgrim, some 56 issues and contentions had to be decided. Findings of fact and conclusions of law had to be written for all of them., Proposed l

findings point the decision writer to support for a specific conclusion, but cannot normally be adopted verbatim because they are intrinsically struc-tured to state a partisan point of view.

Fifteen major health and safety issues were addressed in Pilgrim, and com-

• plate findings with supporting references to the record were made. ' Twenty-five environmental. issues were' decided, with findings on issues such as l

, alternate energy sources, compliance with the Federal Water' Pollution Control Act, cost-benefit analysis, radiological effects..and impacts on land and water use.

Findings were also made on sixteen contentions raised by intervenors, such as the impact of aircraft on the site, alternate condenser cooling, etc.

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Comission -

6-2/25/81 i

Basic findings detailing these items had to be included in the overall

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health and safety and' environmental analysis so that proper conclusions could be drawn.

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The Pilcrim Board held twelve conferences consuming 20 days in dealing with all the, foregoing matters.

Drafts were rewritten and positions'sometimes l

changed. after these deliberations. Rewrites required intensive restudy of parts of the record.

Writing and. editing a nuclear decision is a unique undertaking. Decisions concern technical problems not understood fully by laynen. An intense effort is required not only to articulate problems but also to state reasons l

l that will explain to both the public and the reviewing authorities the cor-rectness of a decision under the statutory standards.

r Writing decisions in large proceedings takes time, time required by the technical complexity of the record, the length of the record, the time con-sumed in analyzing and organizing the facts and conclusions, and the need for care and completeness in deciding each of the issues.

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- Comnission, 2/25/81 In addition, three special factors should be noted. Firstly, conferences and drafting are ofte' de' layed becausc the judges a-e hearing other cases n

while the decision ~in a par cicular case is being prepared. The situation is

' aggravated because almost all hearings are held in the field; judges are then not nven available for conferences after regular hours.

Second y, while the opposition in a nuclear proceeding is almost alw?ys in-tense and emotional, it is often inexpert, inadequate, and unskilled in pre-sentation. Contentions are raised and insufficiently developed by the par-ties, often only through cross-examination. This situation places an extra l

burden on the Licensir.g Board to clarify and explore issues not only at the hearing but al'so during the decisional process.

Frequently, much additional I

research in and analysis of the record is required after the hearing is over.

Finally, judges spend a substantial amount.of time in reading, stamarizing, and indexing-a record. Much of this work could be,done by law clerks who

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could also search the record for material under the direction of the judges.

Clerks could also keep running starcaries of the record so that at the conclusion of a hearing the judges could address the essential iss;es immediately. At the Federal Energy Regulatory Conn'ssion, one law clerk is assigned

Comission 2/25/81 to each group of two judges or some 10 to 12 clerks for 23 judges.

It is the unanimous opinion of'the Chief Judge and the judges at that agency that

.these law clerks have substantially increased the productivity of the judges and improved the quality of their decisions. At the Department of Labor one of some 40 law clerks is assigned to each judge.

In addition to-analyzing records,, these law clerks prepare parts of decisions under the direction of the judges. This practice has proved effective in expediting the issuance of decisions.

II. SCHEDULING A.

The Problem l

We have designed a linear schedule to identify conflicts in proceedings khere members of different boards overlap. These conflicts are illustrated in Attachments 1, 2 and 3.

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As a consequence ten licensing brards have been identified.that need to ;e reconstituted now. Nine Panel members are affected.

(Board members to be replaced are marked with an asterisk.)

Set forth below is a tentative pitn f

for reconstituting those boards which asstnes tha't the two frozen Adminis-trative Judges (Lawyer) will not be available. Their names are shown in parentheses where they would be used should they become available.

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Comission 2/25/81 B.

The Solution 1.

Impacted Boards Bailly (CPA)

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Cole

• Holton Bright

• Leeds i

Miller Blue Hills (ESR) i Linenberger*

Ferguson Little Byron (OL)

' Miller Cole

• Hand Callihan Midland (OM) (OL)

Bechhoefer Linenberger*

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@nn SanOnofre(OL)

Smith

• Clark Luebke*

Johnson Hand Shoreham (OL)

Bowers *. '- -

1auis Carter Shon (James Kelley)

Paris i

l SouthTexas(OL)

Bechhoefer*

Milho111n Hill Luebke*

Lamb Summer {0L)

. Grossman Linenberger Hooper

• deSylva Susquehanna (OL)

Bechhoefer*

J. Gleason Bright Paris

• Purdom l

l Turkey Point (OLA)

Bowers

• Miller Paris (PeterBloch) l Luebke l

Zimer (OL)

Bechhoefer Bright

• Livingston Hooper l

..a Commission. 2/25/81 The Marble Hill (CP), Pebble Springs (ESR), Perkins (CP), and UCLA Argonaut boards will have to be reconstituted. later this year because their chairman plans to retire in Febru'ary 1982.

It should be noted that reconstitution is 2

a continuing practice. For example, four boards have been reconstituted in the last three months alone.

The fi[.st set of impacted proceedings identified in "A" above will be recon-stituted within the next 10 days. Boards are reconstituted reluctantly be-cause reconstitution means losin2 the time and expertise of the member being replaced.

III.

PANEL RESOURCES A. Lawyer Chairmen 1.

The Problem

'h linear charts show that full-time lawyer chairmen are carrying an aver-f age of five cases' each. Four p' art-time lawyers have no' cases while some

,part-time lawyers have only one or two cases. As a practical matter, two or at the most three cases are the maximum part-time lawyer chairmen can man-age. Consequently, it is clear that the Panel's lawyer chairmen resources are presently strained to the limit.

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' Cossnission - 2/25/81 It is difficult to make pronouncements respecting the maximun numbe of cases that either full-time or part '.ime board chairmen should be assigned because of the intermitt'ent nature ci the proceedings and other factors whic.h cause periods of inactivity in a given case. However, it is clear:

(1) that some further reassignment of cases should be made, and (2) that the Panel does not have adequate resources to handle properly any significant nurber.of new cases.

As noted in my February 20 status report, the number of full-time Panel lawyer chairmen has declined from 14 in 1975 to 8 in 1981. The nunerical decline is equivalent to an almost 40 percent reduction in full-time judge years available.

1 2.

The Solution

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The Panel must obtain an exemption fran the freeze for the two recently appointed Board chairmen. Both men are knowledgeable in the field and could assume a full caseload in a very short time. Efforts to have one of these men detailed in the interim from the Department of Energy to h2C are bogged down.

Secondly, the Panel's personnel ceiling should be increased by two more full-time lawyer chairmen. The hiring process, including tha. work cf the

Commission. 2/25/81 Advisory Screening Comittee, takes just as long to complete for a full-time chairman as it rioes for A part-time. However, full-time chairmen represent 4 to 5 times as many ju'dge years as do part-time Board chairmen.

B.

Leoal Secretaries 1.

The Problem The A,LBP now has 10 legal secretaries for 19 full-time professionals and managers and 39 part-time professionals. Afts subtracting the two assigned to the Chairman and Vice Chairman (Executive) and one assigned full time to the TMI restart proceeding, the Panel has seven legal secretaries-assigned to perform the work of 12 full-time Administrative Judges, two management personnel, the General Counsel, the Technical Assistant, and 39 part-time j

Administrative Judges.

1. side frn the Chairman and Vice Chairman (Executive), legal secretaries are A

assigned to two Administrative' Judges, one legal and one technical. At that ratio, we have no one to assign to the three full-time members just ap-pointed, should they become available. The Panel has lost three positions since 1977, one clerk-typist, one secretary and one full-time docket clerk.

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Comission. 2/25/81 In fact no secretary is specifically assigned to either the Assistant Executive Secretary, the' Management Services Assistant, or the 39 part-time Administrative Judges. 'The latter situation is particularly distressing for

~ part-time board chairmen.

In any given week, at least three part-time members are in the office for the sole purpose of writing and issuing orders,, memoranda, and partial oi full initial decisions. They compete with only moderate success and considerable frustration for secretarial support.

2.

The Solution Increase the ASLBP personnel ceiling by three legal secretary positions.

One position would support one full-time Administrative Judge (Legal) and one full-time Administrative Judge (Technical) when those two positions are exempted from the freeze or otherwise become available. The second would support an Administrative Judge (Lawyer) and the Assistant Executive Secre-tary of the Panel. The third legal secretary would be assigne'd to the Man-agement Services Assistant who ' furnishes all administrative support to the 39-part, time Administrative Judges. This last legal secretsrv would thus be available at all times to support part-time members.

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Comission. 2/25/81 C.

Law Clerks

.1.

The Problem At present the Panel has no law clerks.

One honor law graduate scheduled to begin work in August 1981 has been caught in the freeze.

In comparison, the Federal Energy Regulatory Comission has one law clerk for every two Admin-istrative Law Judges or hearing officers.

Law clerks increase the productivity of Administrative Judges by a substan-tiak' percentage. Law clerks can save enormcus amounts of time by preparing

.... __ fir.st._ drafts _ of_ orders, and memoran a, reading,through and outlining volumi _ _,

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nous-transcripts, preparing first drafts of findings of fact and conclusions of law and by performing a broad range of legal research assignments. At present, all these functions are performed by the Panel's. Administrative i

Ju'Jges.

More significantly,.this work c'an be performed by a law clerk while an

, Administrative Judge is hearing another case or working on another decision.

At present, we frequently have situations where an Administrative Judge as-signed to more than one case cannot begin the basic work necessary to draft initial decisions because he or she must attend a hearing previously sched-uled. Law clerk!. would minimize such conflicts and save weeks in the issu-ance of final decisions.

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Comission. 2/25/81

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l 2.

The Solution Increase the personnel ceiling of the ASLBP by a minimun of four full-time law clerk positions.' The positions would be two-year appointments.*

D.

Administrative Law Judoes 1.

The Problem At present the Commission has only one Administrative Law Judge-("ALJ"), and i

he is, devoting full time to the TMI restart hearing. To my knowledge, no arrangements have been made with the Office of Administrative Law Judges in OPM'to authorize use of NRC qualified ALJs in other agencies as needed.

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The Atomic Energy Act authorizes the use, in licensing and related proceed-ings, of either a single Administrative Law Judge or a three-member panel chaired by one experienced in the conduct of administrative proceedings.

s Historically (and wisely), the Comission has elected the three-member panel l

alternative because of the technical and scientific expertise it brings to i

resolving complex issues affecting the public health, safety and environ-ment.

I In the near term, ALJs could be used in four situations:

(1) alone in civil l

penalty proceedings; (2) alone in antitrust proceedings; (3) as chairman in

• These positions could well furnish both the Office of the General Coun-sel and the Office of the Executive Legal Director with a steady supply of experienced attorneys.

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2/25/81

' Connission.

licensing proceedings; and (4) alone in spent fuel pool expansion cases not involving complex technical issues. Of these, only four civil penalty cases and six antitrust cades hind less than six total spent fuel pool cases have been filed in the last five years.

i.um_ver, of all the cases heard by the Panel, antitrust proceedings demano the most judge years. By their nature they have the longest hearings and 1

thelabgestmcordsfordecision. The cases arise at the construction per-mit stage and are normally heard by panels of three lawyers or two lawyers and one economist. Most antitrust cases settle, after the record Ms,been

.__made._

The Office of the Administrative Law Judge exercises strict control over the appointment of ALJs to an agency and interagen:y assignment of cases ic non-agency ALJs.

In both instances, control is exercised in part by estab-hishing criteria for qualifying particular ALJs to hear certain types of cases.

It should be emphasized' that additional ALJs represent an unavail-

'able resource rather than an innediately perceived need.

2.

The Solution Authorize the Chairman of the Atemic Safety and Licensing Board Panel to i

initiate discussions with the Office of the Administrative Law Judge for the purpose of:

(1) establishing criteria for qualifying ALJs for NRC hearings;

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Comission-2/25/81 (2) determining whether present board members can be designated as ALJs; and (3) establishing a specific list of ALJs in other agencies qualified to hear ASLBP cases as needed.

f E.

Financial Resources

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1.

The Problem We have conservatively estimated that total travel costs for the 8 months remaining in Fiscal Year 1981 will total $100,000.00. Our travel budget has been cut from $210,000.00 to $180,000.00, and we have spent $90.,000.00,

-. leaving _a. balance of_190,000.00.

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The foregoing figures include the one-week training sassion for the entire l

l Panel in May but make no allowance for other individual training after the f

first week of March of this year.

I believe strongly that other training

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needs should be funded.

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.The impdfate effectiveness of any new Panel members would ' e greatly en-b hanced by attendance at a one or two week session at the National Judi-ial l

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Connission,- 2/25/81 i

College. The same holds true for all existing Panel members, at the ra+4 of six per fiscal year. The Judicial College offers invaluable sessions taught by sitting judges in the hearing and management of litigation for hearing officers who are lawyers and for hearing officers who are not lawyers.

These sessions can greatly increase the effectiveness of our boards.

2.

The Solution Reallocate travel funds to the Panel for hearings ($10,000.00) and training

($30,000.00) in the total amount of $40,000.00.

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Comission

- 19 2/25/81 IV.

HEARING MANAGEMENT 1.

The Problem The management of hearings is a function of the size of the record. The size of the record is in, turn a function of the number of contentions in a he'aring and the factors described in Section I.A.2., above. Given the requirements of the three Mncipal statutes governing board proceedings I estimate that not more than 25 percent of the time needed to complete a l

l licensihg proceeding can be controlled by hearing management tools.

l The Administrative Procedure Act and 10 CFR Part 2 presently contain virtually l

all of the authority Administrative Judges need to conduct their proceedings.

.Howevet,_the._i.ssu.ance.of.a_pql. icy statement by the.Comiss. ion would reiterate and enhance that authority and facilitate its exercise.

Similarly, the management of hearings depends on the number of issues required 1

to be heard. Public policy dictates that a broad range of issues be considered.

l NRC case law, largely made by intervenors at the trial and, the appellate level, broadly implements that public p.olicy.

In view of the present substantial length of time required for NRC proceedings, a policy statement addressing the subject of contentions would be most helpful at this time. That is particularly true because of tha conyargence of a large number of proceedings going to hearing in the next 12 months. Attachment A is a working paper in the fonn of a draft proposed statement of policy addressing the subjects of contentions and hearing manageme.it.

Finally,10 CFR Part 2 has been revised piecemeal over the course of the last eight years. The Panel feels that it is time to revise Part 2 in its entirety l

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' Comission 2/25/81 to incorporate the case law of the last eight years, to rewrite its provisions i

in s.uccinct, simple English, and to more accurately reflect the current nature of Board procesdings.

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2. The Solution The Comission should issue a policy statement addressing the subjects of contentions and hecring management within the next 30 to 60 days,

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The Comission should direct the Chaiman, ASLBP, to review Part 2 and submit a :omplete revision within 90 days for circulation throughout the Comission.

The revised Part 2 should be published for coment within 45 days after inter circuiation;===

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2-V.

SUMMARY

OF RECOMMENDATIONS The Atomic Safety and Licensing Board Panel recomends that the Commission take the fo11owing steps to allevit.te problems in the management of licensing pmceedings:

l 1.

Obtain an exemption from the freeze for:

(a) the three full-time

.and two part-time Administrative Judges recently appointed; and (b) four part-time technical vacancies; l

Issue a statement of policy furnishing guidance to the Boards in the hearing ~ and management of licensing cases (a proposed draft is attached);

3.

Direct the Panel to review Part 2 and submit a complete revision within 90 days for circulation throughout the Comission with

l Comission 2/25/81 t

publication of the proposed revisions scheduled for 30 to 60 l

days thereafter; 4.

Increase the autfiorized personnel ceiling of the Panel by nine:

two full-time Aliministrative Judges (legal); four full-time law l

clerks (two-year appointments); and three legal secretaries; l

5.

Increase the ASLBP budget for travel and training by $40,000.00

to $220,000.00 per year.for the cost of hearing travel and a..ual

' training of Board Members at the N'ational Judicial College; ud 6.

Direct the ASLBP Chairman to seek authorization from th,e Office of

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..._... Administrati.ve Law Judges.in.0PM.to:,(1) qualify existing Panel.,,,,

Members as ALJs, and (2) obtain authority to use prior Panel Members not ALJs in other agencies, as needed.

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McLa rGaso scneau:0, Galondar 1981, ~l382,1983 LAWYER - CHAIRMAN PANEL MEMSER 1981 1982 1983 Sl0lN FlM, A lM.J JlAlS!OfhjD AlMlJ l Jl Al SlO NlD J

P M A M J J

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U.S. NUCLEAR REGULATORY CO MISSION COMMISSION GUJDANCE ON CONDUCT OF LICENSING BOARD PROCEEDINGS ORAFT PROPOSED STATEMENT OF POLICY I.

BACKGROUND The Comission has reviewed the workload of the Atomic Safety and Licensing Board Panel and the current statu; of proceedings before its indi{ridual boards. The Comission has determined that an unprece-dented number of board proceedings are scheduled for hearings the next 24' months. Almost half of these proceedings concern applications for construction permits and operating licenses pursuant to the Atomic Energy ace, as amended. ThesecircumstanceswillseveYelystNEnthe

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existing resources of the ASLBP and have the potential to delay operation of qualified power plants. The potential cost of such delays to consumers is clearly of great consequence.

II. Co MISSION DECISION

' Bas'd upon an extensive review and consideration of contentions raised s

in licensing proceedings and the manner in which ;uch proceedings are conducted--a review that is still continuing--the Comission has concluded that the requirements for admissible ' contentions in operat-ing license proceedings should be refined and that individual boards ATTACHMENT A.

Page 1 of 9.

T should N strongly encouraged to employ all of the hearing management devices presently within their authority under the Administrative Procedure Act. Additionally, the Comission has concluded that, while plant operation must abide the resolution of those issues which mater-ially bear on the public, health and safety, the comon defense and security and the environment, operation need.not await the resolution of other issues.

The: purpose of this statement is to express the Comission's policy of expediting proceedings by eliminating contentions which do not raise signficant public interest issues, making g-eater use of 9 50.57(c) of the Comission's regulations, and, because of the intermittent and

- ~ -- protracted nature of-licensing proceedings,- insuring that all possible - -

hearing management tools are employed by licensing boards. Thus, Gese guidelines' are intended to reduce the time for resolving licens-l ing proceedings following Comission action and response to the Three Mile Island accident.

e.

Recent Supreme Court decisions have reaffirmed the broad latitude which.ag'encies hav'e in shaping their proceedures. See Costle v.

l Pacific Legal Foundation, et al.,

U.S.

, 63 L. Ed. 2d 329, 100 S. Ct.

(1980) and Vermont Yankee Nuclear Power Coro. v.

Natural Resources Defense Council, Inc., 435 U.S. 519, 55 L. Ed. 2d 460', 98 S. Ct. 1197 (1978). While the Comission views this policy ATTACHMENT A.

Page 2 of 9.

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statemen't as serely elaborating on existine regulatior.c, these cases provide ample authority for any changes in the interpretation of existing regulations reflected in this statement.

III. CONTENTION GUIDELINES The Comission expects licensing boards to admit or retain in operat-l ing license hearings those issues which raise significant public

~

int,erest considerations.

Issues which do not raise such considera-tioris, such as issues primarily related to private interests, should be looked upon skeptically. Our proceedings should not be made the vehicle for the vindication of some purely private right of action

- - " whenrother-fora are availablei~

~-

Similarly, the C$ mission believes that contentions which question the justification for the facility, and the consideration of alterna-tives (both for the site and the facility), matters sich are fully explored in the construction permit proceeding, have no place in operating license proceedings absent a strong showing that some new

- development or information calls into considerable question the validity of the findings made earlier. Boards should be careful not to relitigate at the operating license stage issues which were ade-quately aired at the construction permit stage. The doctrines of res judicata and collateral estoppel snould be judiciously applied.

ATTACW.ENT A.

Page 3 of 9.

s,

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In short, contentions should be accepted in operating license proceed-

~

ings only when they raise significant issues pertaining to the health and safety of the public, the comon defense and security, and the envirorunent.

Contentions should be rejected:

(1) which assert essen-tialy private rights. capable of vindication elsewhere; (2) which raise issues which only can be considered meaningfully prior to construction of the facility; and (3) which seek to relitigate issues which were or could have been adeouately considered at the construction permit stage.

IV. SECTION 50.57(c) PROCEEDINGS l

'~ In operatiig licenseTases iiwhich applicants seek authority under ~

50.57(c) of the Comission's regulations for low-power testing and further operations short of full power, the licensing boards are to view the request in light of the issues raised in the proceeding. The

Comission expects the. boards to resolve all issues which raise seri-ous implications concerning the impact of plant operation on the public health and safety, comon defense and security, and the envi-l ronmerit prior to authorizing operation pursuant to Appendix B to Part 2.

The boards are to view other issues in terms of their significance in l

the context of plant operation.

In the event operation is pennitted.

l ATTACHMENT A.

Page 4 of 9.

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Boards aire to insure that appropiate conditions, including limitations on power levels and the duration of the authority, are imposed to safeguard the public. Boards must also keep in mind their authority to order a cessation qf operation at any time. It is the Connission's intent that its regul dirns be flexibly applied to require resolution of issues which raise significant public interast considerations prior tb authorizing operation, while permitting operation to comence prior to the resolution of those issues which do not raise significant public interest considerations.

In this context, the Connission notes that' it is standard practice to permit operation to go on even though subst.antial issues may be the subject of further evidentiary proceed-l ings before an appeal board. The propriety of continued operation is, of course, viewed in the context of the issues still-to be resolved ---

l and is not. permitted where those issues so dictate. This considera-tion necessarily involves questions of the acceptability of the risk of operating, pending resolution of the issues, and whether operation might prejudice the incposition of any conditions which might be required as a result of the proceeding.

ATTACHMENT A.

Page 5 of 9.

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V.

QUASI ilUDICIAL MANAGEMENT TOOLS Individual licensing boards are encouraged whenever possible to expedite the hearings.by using all those hearing management methods which presently exist in Rules and Regulations,10 C.F.R. Part 2 (1980). These devices include, but are not limited to:

1.

Consolidated Intervenors In accordance with 2.715a intervenors shou nd be consolidated and a lead intervenor designated who has "substantially the same interest that may be affected

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- r = by' the" proceedings-~and who raise [s] substantially the -~-

same question.s...." Obviously, no consolidation should be ordered that would prejudice the rights of either party.

l However, consonant with that condition, single-lead inter-venors should be designated to present evidence, conduct l

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cross-examination,.and submit briefs, propose findings of fa-t, c5nclusions of law, and argument. Where such

~ consolid6*. ion has taken place, those functions should not be performed by other intervneors except upon a showing of prejudice to such other intervenors' interest.

ATTACHMENT A.

Page 6 of 9.

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Necotiation The parties,should be encouraged to negotiate at all times prior to and during the hearing to resolve contentions, settle procedural disputes, and better define issues.

Negotiations should be monitored by the board through l

written reports, prehearing conferences, and telephone conferences,buttheboardsshouldnotbecomedirebly l

involved in the negotiations themselves.

l l

3.

Settlement Conference l

l Following completion of the discovery provided in f 2.740, e_t, segl, and prior to the filing of motions for summary t

l disposition, licensing boards are encouraged to hold settle-1 ment conferenes with the parties. Such conferences are to serve the purpose of resolving as many contentions as possi-ble by' negotiation. The conference is intended to: (a) have

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the parties identify those contentions rio longer considered

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valid or important by their sponsor as a result of informa-l l

tion generated through discovery so that such contentions l

l can be eliminated from the proceeding, and (b) to have the l

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ATTACHMENT A.

Page 7 of 9.

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parties negotiate a resolution, wherever possible, of all on part of any contention still held valid and important. The settlement conference is not intended to replace the pre-hearing conferences provided by ? 2.751a and 2.752.

4.

Trial Briefs, Pretrial Testimony Outlined and Cross-Examination Plans All or any combination of these devices should be required at the discretion of the board to expedite the orderly pres-i entation by each party of its case.

Each board must decide which device or devices would be most fruitful in managing r_r-. r. br" expediting its~~proceedf ag.

~ ~

Combinine Rebuttal and Sur ebuttal Testimony 5.

For particular, highly technical issues boards are encour-l aged during rebuttal and surrebuttal to put opposing wit-nesses on the stand at the same time so that each witness will be able to coment imediately on an answer to a l

question by the opposing witness.

1 I

-ATTAC10ENT A.

- Page 8 of 9.

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6. I Simultaneous Filing of prooosed Findings When possible, boards are encouraged to require the simultaneous filing of. proposed findings of fact and conclusions of law from all parties.,

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7.

Oblications of Parties l

The Comission wishes to emphasize that the failure by a party to ecmply with discovery, filing or other obligations without good cause should, in serious cases, result in dismissal of that party from the proceeding.

l VI. C0!EISSION MONITORING i

t j

The Comission duires to closely monitor hearing proceedings in order to offer guidance,Aere appropriate.

In this connection, should the boards certify close questions regarding the interpretation of this policy statement to the Comission for its consideration, the Connission will 1

l exercise its best effort to answer such questions within 20 days of receipt.

The Comission recognizes that mar.y such certifications will occur at

- critical points in the proceeding and that some proceedings will not be i

able to go forward until such questions are answered.

l ATTACHMENT A.

i Page 9 of 9 l

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UNITED STATES Attachment g p.,.

NUCLEAR REGULATORY COMMISSION s

3 ATOMIC SAFETY AND LICENslNG BOAnD PANEL r

WASHINGTON. O.C. 20555 g

March 5, 1981 MEMORANDUM FOR:

Chairman Hendrie Commissioner Gilinsky Comissioner Bradford Commissioner Ahearne FROM:

B. Paul Cotter, Jr.

Chief Administrative Judge Atomic Safety and Licensing Board Panel

SUBJECT:

CONDUCT OF LICF.NSING BOARD PROCEEDINGS As a consequence of the publi'; 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 draft is based on all the proposals submitted by the ASLBP, the General Counsel, the Executive Director for Operations, 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 were out of the office at hearings and one at the National Judicio!

College).

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UNITED STATES Attachrent 7

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i NUCLEAR REGULATORY COMMISSION ss ~.

wAssiscTow. o. c. 2:sss k

p P. arch g, 1981 NOTE TO: Leonard Bickwit, General Counsel Alan S. Rosenthal, r.hairman Atocic Safety and Licensine Apseal Board B. Paul Cotter, Jr.

Chief Ad=inistrative Judge Ato:ic Safety and Licensing Board Panel

SUBJECT:

CONDUCT OF LICENSING 50ARD PROCEDINGS I have reviewed Tony Cotter's Draft Proposed State =er.: cf Policy on the subject of "Comission Guidance on Co'nduct of Licensing Board Proceedings" which he sent to the Commission on P. arch 5, 1951.

My suggestions for changes are included in a revised draft which is attached.

Further changes will undoubtedly be required as a result of Comission decisions reached in the ongoing Co==ission meetings on revised licensing procedures (including possible rule changes).

One of the things I have tried to do here is to correlate this statement with our existing policy statement (Appendix A to Part 2) and the situation of the " eleven impacted plants".

rieward K. Shapar Executive Legal Director l

Attachment:

Revised Draft e

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a h.ent 8 78, UNITED STATES i

NUCLEAR REGULATORY COMMISSION g 7) w

,.g{ 3.t wAssiscTon, c. c.:esss

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March 10, 1981 MEMORANDUM FOR:

Chairman Hendrie Commissioner Gilinsky Commissioner Bradford Commissioner Ahearne FROM:

Leonard Bickwit, Jr.

General Counsel Attached are several charts to be used in connection with this afternoon's discussion on licensing procedures.

Attachments l

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OPE OCA SECY EDO

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ASLBP ASLAP l

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,p February 17, 1981 i

S SECY-81-111 s

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RULEMAKING ISSUE (Notation Vote)

For:

The Commissioners From:

Leonard Bickwit, Jr.

General Counsel i

Subject:

INTERVENTION IN NRC ADJUDICATORY PROCEEDINGS

Purpose:

To offer for Commission consideration a draft i

rule that would raise the threshold for contentions.

l Discussion:

At the Chairman's request, we are forwarding l

for your consideration a draf t rule that would l

raise the threshold for the admissibility l

of intervenor contentions in NRC adjudicatory I

proceedings.

At preseat, a person petitioning to intervene in a formal NRC proceeding must file "a list of the contentions which petitioner seeks to have litigated in the matter and the bases for i

each contention set forth with reasonable spec-1 ificity."

10 CFR 2.714(b).

This requirement i

serves the threefold purpose of (1) notifying the l

applicant and NRC staff, at least generally, as to what they will-have to defend against or oppose, (2) limiting the scope of subsequent stages of the proceeding including discovery, and (3) assuring, to a degree, that the issues which petitioner seeks to raise are cognizable in an individual licensing proceeding.

If a would-be intervenor fails to raise at least one litigable contention, he may not participate in the proceeding as a party.

10 CFR 2.714(b).

The contention reqc:.rement was upheld in BPI v. Atomic Enerev Commission.

502 F.2d 424 (D.C. Cir. 1974).

The draft rule now offered for your consideration would also require the person petitioning for intervention (1) to identify for each contention the material facts in dispute which warrant an ad]udicatory hearing, and (2) to submit the documents and other information relied on to show the existence of such facts.

If the applicant or NRC staff contested the existence of such an issue, the contention would not be admitted for L

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Bf M er, OGC

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2 hearing if the documents and other information submitted showed that there was no genuine issue of material fact and no reasonable likelihood that additional facts could be j

i developed which would show the existence of a genuine issue to be heard.

l NRC rules providing for summary disposition on pleadings (10 CFR 2.749) recognize the

' general principle that an adjudicatory hearing l

is not required for matters as to which there is no genuine dispute.

The draft rule seeks to integrate that general principle into the contention stage of a proceeding.

In practice, however, a would-be intervenor will be less prepared to fend off.aummary disposition at this early stage; thus, the rule change could significantly affect public participation in licensing proceedings.

The short timeframe for drafting the rule has permitted no real study of this and other questions about the workability and possible consequences of the rule change.

Recommendation:

Approve the draft rule as a subject for further study by OGC and direct OGC, after consultation with the staff and the adjudicatory boards, to report its conclusions and recommenda-tions as to whether the draft rule should be the subject of rulemaking.

Q Q\\

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Leonard Bickwit, Jr.

J l

General Counsel 1

Comissioners' coc:nents should be provided directly to the Office of the I

Secretary by c.o.b. Tuesday, March 3, 1981.

Comission Staff Office comments, if any, should be submitted to the Comissioners NLT February 24, 1981, with an information copy to the Office of the Secretary.

If the paper is of such a nature that it requires additional time for analytical review an! coment, the Comissioners and the Secretariat should be apprised of when coments may be expected.

DISTRIBUTION Comissioners Comission Staff Offices Exec Dir for Operations ACRS ASLBP ASLAP Secretariat

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..______1 ATTACHMENT 1 1.

Amend 10 CFR 2.714(b) by inserting after the first sentence thereof the following new sentence:

The supplement must set forth a concise statement of the facts supporting each contention together with references to the written documents and oEher information relied upon to show the existence of such facts.

If an answer filed under subsection (d) of this section contests the existence of an issue of material fact with respect to any contention petitioner shall be afforded a reasonable opportunity to submit additional l

written documents or other information to show either an issue of material fact or a reasonable likelihood l

that such an issue may be developed in the course of P

l the proceeding.

l l

l 2.

Amend 10 CFR 2.714(c) by inserting at the end thereof the following new sentence:

l 1

If a party states in.its answer Ehat, as to a particular contention of a petitioner, there exist no material facts as to which there is a genuine issue to be heard, it shall submit a concise statement of the material facts not in dispute, together with references to the written documents and other information upon which it 1

relies.

l

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l

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l 2

l 3.

Amend 10 CFR 2.714(d) by inserting at the end thereof the I

following new sentence:

l 1

No contention shall be admitted for hearing if the documents j

and other information submitted show that there is no genuine iscsue of material fact to be heard and that there is no reasonable likelih M that additional facts can be developed l

in the proceeding which will show the existence of such an I

issue.

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