ML20004D040
| ML20004D040 | |
| Person / Time | |
|---|---|
| Issue date: | 05/18/1981 |
| From: | Bickwit L NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20004D035 | List: |
| References | |
| FRN-46FR20215, REF-10CFR9.7, RULE-PR-2, TASK-PICM, TASK-SE SECY-81-202C, NUDOCS 8106080241 | |
| Download: ML20004D040 (11) | |
Text
1 May 18, 1981
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- 4 SECY-81-202C h
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G POLICY ISSUE (Commission Meeting)
For:
The Commission From:
Leonard Bickwit, Jr.,
General Coun:el
Subject:
Revised Draft Policy Statement on de Conduct of NRC Proceedings Discussion:
Attached for your consideration is a revised v
draf t policy statement which incorporates comments made by the Commissioners at recent public markups.
The only new material is found in Sections III(A) and (D).
We have also suggested several editorial changes. OGC, the Chairman of the ASLAP, the ASL3P and OELD concur in this draf t.
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-. - -. N a.
.. s Leonard Bickwit, Jr. /
General Counsel
Attachment:
DISTRIBUTION:
Draft P>1 icy Statement Ccmmissioners' Cormission Staff Offices EDO ACRS ASL3P ASLAP CONTACT:
Trip Rothschild, OGC 634-1465 SECY NOTE:
This paper is identical to the advance copy distributed to the Cermissioners offices en May 18, 1981.
81 O G 080M!
U.S.' NUCLEAR REGULATORY COMMISSION STATEMENT OF POLICY ON CONDUCT OF LICENSING PROCEEDINGS I.
BACKGROUND The Commission has reviewed the docket of the Atomic Safety and Licensing Board Panel (ASLSP) and the cur:ent status of proceedings before f ts individual
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boards.
In a series of public meetings, the Commission has examined at length allhf the] major eler.ents in its licensing procedure.
It is clear that[here e
are)a number of difficult problems fachs-the agency as it endeavors to meet its responsibilities in the licensing area.
This is especially the case with regard to staff reviews and hearings, where requested, for applications for nuclear power plant operating licenses.
Historically, NRC operating licensing reviews have been completed and the license issued by the time the nucle =.r plant is ready to operate.
- Now, for the first time the hearings on a number of cperating license applica:icns
&d-may not be@ompleted]before construction is completed.
This situation is a consequence of the Three M'le Island (TMI) accident, which required a reexam-inttion of the entire regulatory structure.
After TMI, for[a period 'o[over a yur and a. half, the Commission's attention and resources were focused on plants which were a: ready licensed to operate and on the prepara' ion of an action plan which specified changes necessary for reactors as a result of the accident.
Although staff review of pending liccase applications was delayed during this perioc, utilities which had received construction pemits continued to build the authorized plants.
Tne staff is now expeciting its review of the applications and an unprecedented number of hearings are scheduled in the next 24 months.
Many of these proceedings concern applications for operating licenses.
If these proceedings are not concluded prior to the completion af
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construction, the cost of such delay could reach billions of dollars.
The Commission will seek to avoid or recuce such driays whenever =easures are available that do not compromise the Ccmmission's fundamental commitment *w a l
l fair and thorough hearing process.
b[he Commissionperefore. is issuing this policy statement on th l
i for the balanced and efficient conduct of all phases of the hearing process.
I The Commission appreciates the many difficulties faced by its boanis in con-ducting these contentious and complex proceedings.
By and large, the boards have performed very well.
This document is intended to deal with problems nm, not primarily of the boards' own makingyhough]the boards will play an 6
imnortant role in h5eidresol p~ic". -A d.@Mw -
.t Individual adjudicatory boards are encouraged to ex::edite the hearing f
%P process by using those management methodshhich presently] exist in Part 2 of the Commission's Rules and Regulations.
The Cc= mission wishes to emphasize though that, in expediting the hearings, the board should ensure that the hearings are t
fair, and produce a record which leads to high cuality decisions that adeouately pro'ect the public h'ealth and safety and the environment.
Virtually all of the procedural devicts discussed in this Statement are currently being employed by sitting boards to varying degrees.
Tne Commission's remphasis of the use of such tools is intended to reduce the time for completing licensing proceecings.
Tne guidelines set forth below o L O-are not to be consideredynclusive, but rather are to be considered illus-trative of the actions that can be taken by individual boards.
3 II.
GENERAL GUIDANCE The Commission's Rules of Practice provide the board with substantial authority to regulate hearing procedures.
In the final analysis, the actions, consistent with applicable rules, which may be taken to conduct an efficient hearing are limited primarily by the good sense, judgment, and managarial skills of a presiding board which is dedicated to seeing that the process moves along at an expeditious pace, consistent with the demands of fairness.
Fairness to all involved in NRC's adjudicatory procedures requires that every participant fulfill the obligations imposed by and in accordance with applicable law and Commission regulations.
While a board should endeavor to conduct the proceeding in a manner that takes account of the special circum-stances faced by any participant, the fact that a party may have personal or other obligations or possess fewer resources than others to devote to the
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proceeding does not relievedt]af its hearing obligations.
When a participant fails to meet its obligations, a board shculd consider t% imposition of_ sanc-.
tions against the offending party.
A spectrum of s_ar.c.tions_from. minor to severe A/
is available to the t cssist in the management of proceedings. /The boards Tor examplMeould warn the offending party that such conduct will not t
j be tolerated in the future, refuse to consider a filing by the offending party, deny the right to cross-examine or present evidence, dismiss one or more of the party's contentiuns, impose approcriate sanctions on counsel for a party, or, in severe cases, dismiss the party from the proceeding.
In selecting a sanction, boards should consider the relative importance of the unmet obligation, its l
l potential for ham to other parties or the orderly conduct of the proceeding, whether its occurrence is an isolated incicent or a part of a pattarn of l
behavior, the importance of the safety or environmental concerns raised by the
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4 party, and all of the circunstances.
Boards should attempt to tailor sanctions to mitigate the harm caused by the failure of a party to fulfill its obligations and bring about improved future compliance.. At an early stage in the proceeding, a board should make all parties aware of the Commission's policies in this rega rd.
When the NRC staff is responsible for the delay of a proceeding the Chief Administrative Judge, Atomic Safety and Licensing Board Panel, should infonn the Executive Director for Operations.
The Executive Director for Operations will apprise the Commission in writing of significant delays and provide an explana-tion.
This document will ' a served on all parties to a proceeding and the boa rd.
III.
SPECIFIC GUIDANCE A.
Time The fundamental ingredient in managing licensing proceedings is setting
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appropriate time limits for required actions.
The Boards should specify time frames for all actions where they deem such delineations of time will expedite proceedings.
Concomitantly, the Boards are advised to satisfy themselves that the 10 CFR 2.711 " good cause" standard for adjusting times fixed by the Board or prescribed by Part 2 has actually been met before granting an extension of time.
Requests for an extension of time should generally be in writing and should be received by the Board well before the time specified expires.
5 B.
Consolidated Intervenors In accordance with 10 CFR 2.715a, intervenors should be consolidated and a lead intervenor designated who has "substantially the same interest that may be af#ected by the proceedings and who raise [s] substantially the same questions Obviously, no consolidation should be ordered that would prejudice the rights of any intervenor.
However, consonant with that condition, single, lead intervenors should be designated to present evidence, to conduct cross-examination, to submit briefs, and to propose f'ndings of fact, conclusions of law, and argument.
Where such consolidation has taken place, those functions should not be perforned by other intervenors except upon a showing of orejudice ;o such other intervenors' interest or upon a showing to the satisfaction of the board that the record would otherwise be incomplete.
C.
Necotia tion The partics should be encouraged to negotiate at all times prior to and during the hearing to resolve contentions, settle procedural disputes, and l
better define issues.
Negotiations should be monitored by the board through written reports, prehearing conferences, and telephone conferences, but the beans should noc beccme directly involved in the negotiations themselves.
D.
Soard Manicement of Discoverv l
The purpose of discovery is to expedite hearings by the disclosure of information in the possession of the parties which is relevant to the subject matter involved in the proceeding so that issues may be narrowed, stipulated, l
or eliminated and evidence to be presented at hearing can be stipulated or l
g otherwise limited to that which is relevant.
The Commission is concerned that abuse of discovery not delay hearings.
Accordingly, the boards should manage and supervise all discovery, including not.only the initial discovery directly following admission of contentions, but also any discovery conducted thereafter.
The Comission again endorses the policy,of voluntary discovery, and encourages the boards, in consultation with the parties, to establish time frames for the completion of both voluntary and involuntary discovery.
Each individual board shall determine the method by which it supervises the discovery process.
Possible methods include, but are not limited to, written reports from the parties, telephone conference calls, and status report conferences on the record.
In virtually all instances, individual boards should schedule an initial conference with the parties to set a general discovery schedule imediately after contentions have been admitted.
The boards should not countenance discovery requests that are filed for the primary purpose of delaying the commencement of the hearing.
If a board determines that the right to engage in discovery is being abused, it may issue an order advising the party to whom the discovery request was directed that no response to the request is required or impose other suitable sanctions.
To further prevent abuse of discovery, the Commission has agreed to solicit public comment on a proposed rule which wculd limit the number of interrogatories that could be filed in a proceeding.
E.
Settlement Conference Licensing boards are encouraged to hold settlement conferences with the parties.
Such conferences are to serve the purpose of resolving as many con-tentions as possible by negotiation.
The conference is intended to:
(a) have
7 the parties identify those contentions no longer considered valid or important by their sponsor as a result of infomation generated through discovery, so that such contentions can be eliminated from the proceeding; and (b) to have the parties negotiate a resolution, wherever possible, of all or part of any con-tention still held valid and important.
The settlement conference is not intended to replace the 'prehearing conferences provided by 10 CFR 2.751a and 2.752.
F.
Timely Rulines on prehearina Matters The licensing boards should issue timely rulings on all matters.
In par-ticular, rulings should be issued on crucial or potentially dispositive issues at tne earliest practicable juncture in the proceeding.
Such rulings may eliminate the need to adjudicate one or more subsidiary issues.
Any ruling which would 2.ffect the scope of an evidentiary presentation shoulti t.e rendered wel! before the presentation in question.
Rulings on procedural matters to regulate the course of the hearing should also be rendered early.
If a significant legal or policy question is presented on which Commission l
guidance is needed, a board should promptly refer or certify the matter to tne I
l Atomic Safety anc !.icensing Appeal Board or the Commission.
A board should exercise its best judgment to try to anticipate crucial issues which may recuire such guidan:e so tha: the reference or certification can be made and the response received without holding up the proceeding.
G.
Summary Discosition T.n exercising its authority to regulate the course of a hearing, the boards snou'.d encourage the parties to invoke the summary disposition procedure on
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g is;aes where there is no genuine issue of materi;l fact so that evidentiary hearing time is not unnecessarily devoted to such issues.
H.
Trial Briefs, Prefiled Testimony Outlines anc Cross-Examination Plans All or any combination of these devices should be required at the discre-tion of the board to exp'edite the orderly presentation by each party of its case.
The Commission believes that cross-examination plans, which are to be submitted to the board alone, would be of kenefit in most proceedings.
Each board must decide which device or devices would be most fruitful in managing or expediting its proceeding by, limiting unnecessary direct oral testimony and cross-examination.
I.
Cembinin: Rebuttal and Surrebuttal Testimony For particular, highly technical issues, boards are enc uraged during rebuttal and surrebuttal to put cpposing witnesses en the stand at the same time _
so that each witness will be able to e omment immediately on an opposing witness' answer to a question.
Appendix A :: 10 CFR Part 2 explicitly recognizes that a board may find it helpful to take expert testimony from witnesses on a round-table basis after the receipt in evidence of prepared testimony.
J.
Filinc cf Dro:csed Findincs of Fact and Conclusions of Law Parties shculd be expected to file preposed findings of fact and conclu-sions of law on issues which they have raised.
The boards, in their discretion, may refuse to rule on an issue in their initial decision if the party raising the issue has not filed proposed findings of fact and conclusions of law.
g K.
Initial Decisions Licensing proceedings vary greatly in the difficulty and complexity of issues to be decided, the number of such issues, and the size of the record compiled.
These factors bear on the length of time it will take the boards to issue initial decisions.. The Commission expects that decisions not only will continue to be fair and thorough,. but also that decisions will issue as soon as practicable after the submission of proposed findings of fact and conclusions of law.
Accordingly, the Chief Administrative Judge of the Atomic Safety and Licensing Board panel should schedule all board assignments so that after the record has been completed individual Administrative Judges are free to write initial decisions on those applications where construction has been completed.
Issuance of such decisions should take precedence over other responsibilities.
IV.
CONCLUSION This statement on. adjudication is in support of the Commission's effort to complete operating license proceedings, conducted in a thorough and fair i
manner, before the end of construction.
As We have noted, that process has not, in the past, extendcd beyond completion of plant construction.
Because of the considerable time that the staff had to spend on developing and
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carrying out safety improvements at cpera:ing reactors!!r. lg7g-lgSO, in the
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wake of the Three Mile Is1.and accident, this historical situation has been l
disrupted.
To reestablish it on a reliable basis requires changes in the agency review and hearing process, some of which are the subject of this s ta tement.
10 As a final matter, the Commission observes that in ideal circumstances operating license proceedings should not bear the burden of issues that ours do now.
Improvement on this score depends en more complete agency review and decision at the construction pennit stage.
That in turn depends on a change in industrial practice:
submittal of a more nearly complete design by the applicant at the construction permit stage.
With this change operating license reviews and public proceedings could be limited essentially to whether the facility in question was constructed in accordance with the detailed design approved for construction and whether significant developments after the date of the construction pennit required modifications in the plant.
For the Commission I
l SAMUEL J. CHILK
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Secretary of the Commission Dated at Washington, D.C.
l this day of
, 19El.
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