ML20003F287
| ML20003F287 | |
| Person / Time | |
|---|---|
| Issue date: | 04/07/1981 |
| From: | Shapar H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| References | |
| FRN-46FR17216, RULE-PR-2 46FR17216-286, NUDOCS 8104200522 | |
| Download: ML20003F287 (4) | |
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UNITED STATES
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NUCLEAR REGULATORY COMMISSION WASHINGTON, D. C. 20555
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MEMORANDUli FOR:
Samuel J. Chilk
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Secretary of the Comission Y: /g,,e '
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Howard K. Shapar CCcnT.ct3D Executive Legal Director up.O EJu PR. 2_
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NRCSTAFFCOMMENTSONPROPOSEDAMENDMENTSTO)
SUBJECT:
10 C.F.R. PART 2 On March 13, 1981 by letter to counsel to the parties in NRC proceedings, the Nuclear Regulatory Commission requested comments on proposed amendments to the Comission's Rules of Practice,10 C.F.R. Part 2.
The Commission indicated that it was particularly interested in the parties' views on how the proposed amendments would affect the
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quality of the licensing board decision, tLa parties' ability to w
participate and the time savings that might be achieved. The NRC St
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submits the following coments.
I.
TIME SAVINGS
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A.
The time savings available under the proposed rule chan#
l should expedite the conduct of NRC adjudicatory proceedings.
The ave'i:
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time from the issuance of the relevant Staff Safety Evaluation Supplem'
< h,V (SSER) to the commencement of the hearing has been approximately nine b 4' i
months in the past. Under the current Rules of Practice in 10 C.F.R. Part 2 it would appear possible to accomplish prehearing matters following SSER issuance in five months.
Implementation of the proposed rules could reduce that time to three months. Under current Commission rules experience shows a period of seven months elapsed time from start of hearings until an effective licensing decision. The proposed rules could reduce that time by three months. Thus implementation of the proposed amendments could improve hearing schedules by at least five months, possibly more.
B.
The proposed amendments and suggested schedule provide ninety days from issuance of the SSER to the start of hearing. While this time is probably justifiable for near term cases where significant new information can probably be anticipated in SSERs for particular facilities, (because of TMI-related issues), it does not necessarily follow that subsequent SSERs in cases scheduled for hearing later in 1981 or 1982 will contain such new infornation.
If there is no significant new information at this stage, it should be possible to begin the hearing within thirty days - after SSER issuance.
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-2 In the past there have been instances where hearings concenced within thirty days of SSER issuance, for instance, Indian Point Unit 2.
Where the last supplement relevant to the hearing issues dces not contain new information significantly different from that available to the parties in an applicant's FSAR/PSAR submittal, then commencing the hearing witnin 30 days after SSER issuance is feasible.
II. ABILITY TO PARTICIPATE The proposed i=endments would not affect the Staff's ability to participate in Commission proceedings if adequate resources are made available to meet the shortened review schedules. While there has been criticism of these pr:vistens of the pr000 sed amendnents which would eliminate formal discovery against the Scaff, none of the changes would prevent parties frem effectively Obtaining ne information necessary to litigate their contentions.
Discovery is a legal tool designed primarily to prevent surprise at a hearing wnere a party has prepared its case assuming certain facts Only to " discover" at the hearing tnat tne cpponent was actually relying on facts different from those supposed. Staff respenses to discovery usually amcunt to little more than a restatemert of the SER in most cases. A number of other less formal, but effective ceasures are available to participants in Commission proceecings to avoic sucn surprise with regard to the Staff's case. First, tne SER wnica documents ne Staff's position is available to carties ell in advance of the hearing.
In addition, the Staff 40uld c:ntinue to make material available and answer questions en an informal basis. Second, tne Freeden of Information Act is currently used extensively by parties in lieu of formal discovery to cbtain Staff documents. Third, the Connission's Policy on Differing Professional Opinion routinely surfaces disagreements among technical members of the Staff.
Fourth, testimony must be prefiled prior to the hearing. Finally, the carties have the right to make appropriate motions to produce additional Staff personnel or documents if examination at the hearing reveals tnat information material to issues in the case is not available.
In short, the proposed amendment to eliminate for=al discovery against the Staff would produce very significant savings in Staff rescurces while not =aterially affecting the amcunt or quality of Staf' infor:ation available to the parties to the proceeding.
The time that would be saved as a result of the elimination of for=al discovery against the Staff is perhaps the most significant benefit of the proposed amendments.
In explex cases the sayings can be as much as four months. The times involved under current rules for formal discovery against the Staff runs frcm issuance of the SSER.
If only one round of discovery by written interrogatories were to be allcwed by a licensing board, the following time is involved:
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. Day Action 0
SSER issues.
5 Service by mail complete (12.710).
15 Interrogatories filed on Staff (192.740, 2.740a(f),
2.7405.
20 Interrogatory service complete (12.710).
30 Cross-interrogatories served (12.740a(f)).
34 Interrogatory replies due (12.74Cb(b)).
35 Cross-interrogatory service complete (12.710).
39 Service of interrogatory replies complete (12.710).
Earliest completion of first round if no objections or cross-interrogatories are filed.
49 Motions to compel due (12.740(f)). Reply to cross-interrogatories due (12.740a(f)).
54 Service of motions to compel and cross-interrogatories complete (12.740(f)).
64 Answers to motions to compel (12.730) and motions to compel answers to cross-interrogatories.
69 Service of answers and motions complete (12.710).
79 Ruling 'on motions to compel.
84 Service of Board Order complete (12.710).
98 Further responses if required.
103 Service complete; 1st round of discovery complete.
The proposed amendments would not change the formal discovery provisions applicable to other parties in NRC proceedings. However, this discovery would be ongoing prior to SSER issuance and should be virtually complete before the SSER was published.
III. CUALITY OF LICENSING BOARD DECISIONS While the proposed amendments tighten the post-hearing procedures by eliminating applicant reply findings and proposing forty days for the parties to file proposed findings, the time suggested for a
4 board decision is sixty days. Currently, Appendix A to 10 C.F.P.. Part 2 suggests 35 days for board decisions. Although licensing boards have taken longer to issue decisions, some decisions have been issued within 35 days. As discussed above the proposed amendments do not change the amount or quality of information to be produced during the hearing. Since the proposed amendments do not contract the time suggested for decisions.
there is no reason to believe the quality of decisions should suffer if the amendments are adopted.
Howard K. Shapar Executive Legal Director cc:
W. Dircks H. Denton i
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