ML20004D053
| ML20004D053 | |
| 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-RIA, TASK-SE SECY-81-310, NUDOCS 8106080269 | |
| Download: ML20004D053 (18) | |
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SECY-81-310 May 18, 1981
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RULEMAKING ISSUE (Affirmation)
Fo r -
The Commission From :
Leonard Bickwit, A., General Counsel Subj ect :
Final Rule Amen _ng Part 2 Discussion:
Attached f:: your consideration is a draft Federal Register Notice en the proposed final rule amending 10 CFR Part 2.
OGC, the Chairman of the ASLAP, the ASL3? and CELD concur in the proposed draft.
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Leonard Bickwit, Jr.
General Counsel
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Attachment:
Draft Final Rule Amending Part 2 SECY NOTE:
This paper may be discussed during the ongoing series of Commission meetings on Licensing Procedures.
It is identical to the adranced copy distributed to Commissioner offices on May 18, 1981.
CGNTACT:
Trip Rothschild, OGC L-1L65 8100 08 0 h%
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This paper is tentatively scheduled for consideracion at an open meeting during the week of June 1, 1981.
Please ' refer to the appropriate weekly Commission schedule, when published, for a specific date and time.
Commissioners' comments or consent should be provided directly to the Office of the Secretary by c.o.b. Tuesday, June 2, 1981.
Commission Staff office comments, if any, should be submitted to the Cc=missioners NLT May 26, 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 and comnent, the Commissioners and the Secretariat should be apprisec of when comments may be expected.
DISTRIBUTION:
Cc=missioners Commission Staff Offices EDO ACRS ASLSP ASLAP t
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NUCLEAR REGULATORY COMMISSION - -
10 CFR Part 2 ROLES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS Expediting the NRC Eearing Process AGENCY:
U.S. Nucle'ar Regulatory Commission ACTION:
Final Rule
SUMMARY
The Nuclear Regulatory Commission has adopted several amendments to its Rule:s of Practice te facilitate expedited conduct of ice cdjudicatory proceedings on applications to construct or operate nuc1 car power plants.
These amendments authorire 'the licensing bo'ards to take oral rulings on written motions during the course of a prehearing conference or a hearing, preclude parties from filing responses to objections to a prehear-ing order unless the licensing board so directs, revise the schedule for filing proposed findings of fact and conclusions of I
law, and permit summary disposition motions to be filed at any time during the course of the proceeding.
EFFECTIVE DATE:
De.ne gf publicEticn in the Federal Recister.
FOR FURTHER INFORMATION CONTACT:
Trip Rotnschild, Esc., Office o f the General Counscl, U.S. Nuclear Regulatcry Commission, Washington, D.C.
20555 (202-534-1465).
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2 SUPPLEMENTAL INFORMATION on March 17,, 1981 the Commission published in the Federal Register (46 Fed. Reg. 17216) a Notice of Proposed Rulemaking soliciting public comments on six proposed changes to the Commission's Rules of ~ oractice, 10 CFR Part 2.
The purpose of the proposed amendments was to shorten the hearing process en applications to construct.or operata a-nuclear power plan t, without reducing the-overall quality or fairness of NRC adjudicatory proceedings.
In response the Commission received more than 600 comments.
The comments are set forth and analyced in SECY 81-252, a publicly available memorandum from the-Commission's General Counsel to the Commission and,. therefore, only a brief sum =ary of' the more significant comments is contained in this Notice.
The Commission also sought ec= ment on a proposed mocel hearing schedule which would serve as a guideline for NRC's administrative judges.
The Commission is still deliberating on the proposed schedule and, therefore, a model schedule is not set forth in l
l this notice.
1.
gliminate Discovery Acainst the NRC Staff Currently, parties to NRC licensing proceedings may engage in formal discovery against the NRC staff.
The Ccmmission sought ccament en a proposed rule which would eliminate formal discovery again s t the staff.
Most of the commenters opposed the propcsal, crguing that their participation in a proceeding would be severely impeded if they could not ootain relevant information from the NRC
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staff through formal discovery prior to the commencement of the hearing or.that elimination.of discovery against the staff.might lengthen The licensing process.
A majority of the -Commission does not support the proposed rule and it has not been adopted.
However, the Commission has under consideration a different proposal which would limit the number of interrogatoriev that a party may file against,another party in an NRC adjudicatory proceeding.
Public comment would be sought in-a future rule-making proceeding on any such proposal.
2.
Permit the Licensinz Boards to Rule Orally on Written Motions Under 10 CFR 2.730(e), licensing boards are required to issue written orders on those to icns submitted to them in writing.
The Co--4ssion sought comment on a proposed rule which unuld permit the-boards, where apprepriate, to issue oral rulings addressing such motions during the course of a prehearing conference or hearing.
Many of the nuclear industry cocoenters supported the proposed rule change noting that it could expedite the hearing process by enhancing the ability of the licensir.g boards to rule pro =ptly on
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motions pertaining to procedural matters.
Several. emphasized, l
I however, that if oral rulings are permitted, a board must take care to fully spell out its reasoning.
Intervenors, on the other hand, opposed the rule change because of a concern that they would not promptly learn.of oral rulings.
Interveaors frecuently li=it their attendance at the hearings to the days when their contentions are being litigated, l
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4 and do not have the resources to purchase transcripts.
Intervenors asserted that without prompt notification they could miss filing deadlines imposed by the boards in oral rulings and the period for seeking reconsideration of a board's ruling 'could expire before they learned of the ruling.
After eval'1ating these comments; the commission has adopted a rule which amends 10 CFR 2.730(e) to permit the boards to make oral rulings on written motions, but will require the board to ensure that the paities are promptly notified of the ruling.
This will permit oral rulings where this could expedite the proceedings, or is otherwise appropriate, without ptcjudicing any party.
Several mechanisms are available to notify absent parties.
of the ruling.
The Board may notify the party by phone; it may direct one of the parties present to contact the absent party; or it may serve the transcript pages containing the order on all parries.
The Commission encourages the boards at n minimum to
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serve the transcript pages.
When the boards rule orally they are l
also directed to take special care to fully set forth the reason-ing behind the decision.
3.
Prohibit Motions to Recensider Prehearing Orders
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Under 10 CFR 2.751(d) and 2.752(c) parries other than the NRC staff may file, within five days af ter service of a board prehearing crder, an objection to the ort.er.
Such an objection constitutes, in effect, a motion requesting the board to reconsider t
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its ruling.
The NRC staff has ten days after service of the order to request reconsideration.
The Co==ission sought comment on c
' proposed rule which would preclude parties from filing requests for reconsideration of prehearing orders.
Virtually all commenters opposed the.projosed rule change arguing that mistakes which could significantly affect the-pro-ceeding might be prevented if motions for reconsideration are permitted.
Moreover many commenters argued that the proposed rule would not result in significant time savings because such motions which are without merit can be promptly answered and denied, and the proceeding may continue while the cotions for reconsideration are pending.
It was further argued that it is unclear how the proposed change would save time, particularly in comparison wirh the time which would be required should the licensingboardberevers&dfebanerrorwhichapartywishedto but' cou1d'~not'bridg to the board's attention.
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The Cotsission agrees with the co=menters and therefore has not adopted the proposed rule.
However, the Cocmission has adopted other changes to its regulations pertaining to objections to or motions for reconsideration of prehearing orders.
The Commission has observed that objections er =ctions for reconsideration are not frequently granted.
The Coc=ission therefore is amending its regulations to take away the right of a party to file an answer to an obj ection or motion for reconsideration.
Responses will only be permitted, if the licensing board so directs.
This means that
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motions which on their face have little merit pill be su==arily dismissed-by the board.
Parties will be asked to respond only to those motions that a board believes =ay have some = erit.
In addition, although the com #ssion's present rules do not so dictate, it is possible under the present practice for an objec-tion or motion for reconsideration to have the effect of staying the effectiveness of the board's order until the board rules on the =atter.
The Coccission Las adopted an amendment to its regu-lations which provides that filing of an objection to or a motion for reconsideration does not stay the effectiveness of the prehear-ing order, unless the board. for good cause shown deter =ines that the decisien should be stayed pending board action.
Thus parties are to proceed with prehearing catters on admitted contentions, even though objection: te er actient for recensider: tion of the ruling ad=itting the contentions are pending before the board.
This approach would be consistent with existing regulations pertain-ing to petitions for reconsideration of final board decisiens, 10 CFR 2.771(c).
4 Permit Licensinz Board Chairman to Rule on l
Prehearinz Matters Without Consultinz Other l
Board Memoers Under 10 CFR. 2. 721(d) and 2.713, when a licensing board is not in session, the chair =an of the board (who is always cualified in the conduct of adtinistrative proceedings) it vested with the power to rule on procedural recuests.
This includes ruling on intervention petitions, contentions, =ctions for sn=cary disposition P00R ORRE
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requests to compel a party to respond to interrogatories, and requests for extension of time.
However, in practice the board chairman does not rule alone on petitions.for leave to intervene, contentions, or motions for summary disposition because the techni-cal expertise of the administrative judges serving on the board who have scientific backgrounds is frequently essential in ruling on auch motions.
The Cor #ssion sought co==ent on a proposed rule which would per=it the licensing board chair =an to act alone on all prehearing.=atters.
It would be within the discretion of the chair =an to consult with the other administrative judges before taking action.
Few co== enters supported this proposal.
The co== enters argued that it would be a serious error to allow the chair an to act alcne in issuing substantive orders on prehearing =atters, such as ruling on contenticns and =otions for su==ary disposition.
Cn this point the ce== enters e=phasired that prehearing orders set the fra=ework for the hearing add therefore the technical administrative judges should contribute to the decision.
Others co=uented that centralized decision =aking cay be appropriate in ti=es of crisis, but is not necessary in licensing proceedings.
Others argued that the proposal was inconsistent with Congress' intent in establishing three ce=ber panels to preside over NRC hearings.
Based upon the review of these cc==ents, the Co==ission has decided not to a= cad 10 CFR 2.721 as proposed.
The Co==ission believes that the present practice whereby all three board =e=bers participate in acting upon substantive prehearing orders should Continue.
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Eliminate the Richt of the Aeolicant to File a Recly to Other Parties' Procosed Findinos of Fact and Conclusions of Law Under 10 CFR 2.754(c) unless otherwise directed by the board, the applicant must file its proposed findings of fact and conclu-sions of law within 20, days af ter the record is closed.
The filings from the other parties, except for the NRC staff are due 30 days af ter the close of the' record.
Staff's filing must be filed by day forty.
The applicant must file
'.ts reply to the other parties' submissions within ten days after service of the other parties' filings.
The Commission sought comment on a proposed.
rule which would eliminate the right of the applicant to file a reply submittal.
A few commenters supported the proposed rule change arguing that the applicant should be giv_en only one opportunity to set forth its views and that the licensing board is capable of making its findings without having a reply finding from the. applicant.
However, most commenters opposed the rule change.
Because the applicant has the burden of proof. in NRC initial licensing proceed-ings, many argued that fairness dictates that it should have the last word.
It was also argued that the applicant's reply filing served a useful function because it focused on the disputes between the parties and permitted prcmpt resolution of issues by che board.
Finally, many ccmmenters noted that if the t.pplicant wished to expedite the proceeding, it could waive the opportunity to file a reply pleading.
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After reviewing these co=ments, the Commission has decided not to eliminate the right of the applicant to file a reply pleading.
However, it has adopted amendments to 10 CFR 2.754 which alter the time limits for filing proposed findings of fact.
Experience indicates that because of the complexity of NRC pro-
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ceedings the applicant frequently is unable to file its proposed findings within the prescribed 20-day period and the Soard =ust establish another filing schedule.
The Cocsission therefore is modifying the schedule to make it more realistic.
Under the new regulations the. applicant's submission will be due thirty days after the record closes, the filing of other parties (except for the NRC staff) will be due 40 day.s after the record closes.
The staff's pleading will be due 50 days after the record closes.
The applicant's response will be due 5 days after the staff files its proposed findings, five days earlier than the ten days allowed under prior regulations.
The Co==ission contemplates that ~ staff
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.would hand-deliver or air express its filing to the applicant to provide applicant a reasonable time to respond.
Although boards are authorized to deviate from this suggested schedule, it is expected that absent unusual circumstances the board will not authorire use of a core extended filing schedule.
In cases with few parties, and few contentions, the boards should not hesitate to order use of a core compressed filing schedule.
LP/hWlE-@Il 10 6.
Eliminate Recuirement That Motions for Summary Disoosition be Submitted no Lateg Than 45 Days Before the Commencement c2 the Hearing Under 10 CFR 2.749(a) parties to proceedings must file any motions requesting summary disposition at least 45 days p_'ior to the start of the hearing.
The Commission sought comment on a proposed rule which would permit motions for summary disposition to be filed at any time.
However, the board would be authorized to set a; propriate time limits for the filing of such motions which would be tailored to fit the circumstances.
Although a few commenters favored the proposed change because it would provide greater flexibility in the use of these motions, most commenters opposed the propcsed change.
The major arguments advanced againsu the proposal are that if thereis no genuine
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factual dispute which exists on a particular issue, a competent 1
attorney should recognire that well before the hearing, and that'
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late filed motions actually disrupt and celay the hearing.
Commenters frequently noted that most motions for summary disposi-tion are filed against intervenors, who generally have limited resources.
Because responding to summary disposition motions requires a substantial effort, if motions are filed just before the hearing or during the hearing itself, intervenors will be j
required to divert resources from ongoing efforts to prepare testimony or to prepare for cross-examination.
Late filed motions similurly distract the other parties to the proceeding as well as 1
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[7590-012 the board which must rule on the motion.
Several commenters suggested that if the boards are given the discretion to permit motions for su= mary disposition to be diled less than 45 days prior to the co=mencement of the hearing, they should be directed to reject summarily motions which would unduly divert parties' resources away from the hearing.
Af:er evaluating these cou=ents, the Coc=ission has adopted a rule which provides that motions for summary disposition may be filed at any time, but that.the boards are to reject motions filed right before the hearing or during the hearing itself where response to such motions would require the other parties or the board to divert substantial resources from the hearing.
Boards are directed in each case at an early date to set forth an appro-priate schedule for filing motions for su==ary disposition.
inis opproach should provide the board maximum flexibility in setting a schedule for the filing of such motions, but will discourage ~
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filing of motions right before the hearing or during the hearing itself.
i The Co==ission has also adopted cne other minor amendment to the regulations.
In 1980 the Co==ission adopted an amendment Oc 10 CFR 2.749a which provides that a party may file an answer i
1 in supper cf a =otion for su==ary disposition, as well as in opposition to such a motion.
The Cecnission also revised the regulations to permit the party opposing the motion for summary disposition to file a supplemental response which addresses any new t
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=atters raised in answers supporting the =otion.
The Cocsission directed its boards to estsblish expeditious time limits on a case-by-case basis for the filing of any response to supporting statements consistent with the requirements of fairness.
The Co= mission has amended the regulations to provide for a ten-day response period rather than having the boards establish the time for response on a case-by-case basis.
Establishing time limits for response on a case-by-case basis is not a profitable use of the board's time.
Unlike the other amendments addressed in this Notice, the Co= mission did not seek public cocaent on this minor change.
The Cermissien has determined that public cccment is not recuired because the amend =ent is procedural in nature.
Because the amendments are related only to matters of
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procedure, the Commission is making the amendments effective upon pubifcation in the Federal Register.
Accordingly, pursuant to the Atomic Energy Act of 1954, as amended, the Energy Reorgani-zation Act of 1974, as amended, and sections 552 and 55: of Title 5 of the United States Code, the following acendments to Title 10, Chapter 1, Ccde of Federal Regulations, Part 2, are published as a dccument subj ect to ecdificatien to be effective upon publi-cation in the Federal Register :
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Part 2 -- RULES OF FRACTICE FOR DOMESTIC LICENSING PROCEEDINGS l
1.
In 5 2.730, paragraph (e) is revised to read:
i 2.730 Motions (e) The Board m'ay dispose of written motions either by written order or by rulinz orally during the course of a orehearinz conference or hearing.
The Boarc should ensure that carries not oresent for the oral ruline are notifiec cromotly of the order.
2.
In S 2.749, paragraph (a) is revised to read as follows :
5 2.749 Authority of presiding officer to dispose of certain issues on the pleadings.
(a) Any party to a proceeding may ove, with or without supporting affidavits, for a decision by the presiding officer in that partv.'s favor as to cil or any part of the matters involved in the proceeding.
There shall be annexed to the moti'on a separate, short and concise statement of the caterial facts as to which the moving party con-tends that there is no genuine issue to be heard.
Motions shall be filed within such time as may be l
fixed by the presiding efficer.
Any other party l
=ay serve an answer supporting or opposing the l
notion, with or without affidavits, within twenty l
(20) days afte service of the cocion.
There shall be annexed to any answer opposing the cotien a separate, shcr: anc concise statement of the caterial facts as to which i: is contended tha:
there exists a genuine issue to be heard.
All
=aterial facts se ~ forth in the statement recuired l
- o be served by the moving party will be deemed to be admitted unless controverted by the statement recuired to be served by the opposing party.
The oc_cosinz carry = a v. within ten cavs a :er service responc in writinz to new fac:s anc arzuments ore-sentec in any statement filec in succort of the i
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No further supporting statements or responses thereto shall be en:ertained.
The board may dismiss su=marily motions filed shortly oefore the hearine commences or curing the hearinz if the other parties or the 'coarc wculd be recuirec to divert substantial resources from the hearing in order to respond adecuately to the motion.
3.
In 5 2.751a, paragraph (d) is revised to read as follows:
(d) The presiding officer shall enter an order which recites the action taken at the conference, the schedule for further actions in the proceed-ing, any agreements by the parties, and which identifies the key issues in the proceeding, makes a preliminary or final determination as to the parties in the proceeding, and provides for the submission of status reoorts on discovery.
The order shall be served upon all parties to the proceeding.
Objections to the order may be filed by a party within five (5) days after service of the order, except that the staff may file objec-tions to such order within ten (10) days after service.
Parties may not file reclies to the objections unless the Boarc so directs.
The board may revise the order in consideration of the cbj ec-tions presented and, as permitted by 5 2.718(i), may certify for determination to the Commission or the Atomic Safety and Licensing Appeal Board, as appro-oriate, such matters raised in the objections as
't deems appropriate.
The order shall control the isubsequent ccurse of the proceeding unless modified for good cause.
4 In S 2.752, paragraph (c) is revised to read as follows:
(c) The presiding officer shall enter an order which recites the action taken a: the conference, the amendment's allowed to :he pleadings and agree-ments by the parties, und which limits the issues or defines the matters in controversy to be deter-mined in the proceeding.
Objections to the order may be filed by a party within five (5) days after service of the order, except that the regulatory staff may file objections to such order within ten
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Parties may not file renlies to the objections unless the coarc so directs.
The boarc =ay revise the order in the light of the objec-l tions presented and, as permitted by 5 2.718(i) cay certify for determination to the Coc=ission or the appeal board, as appropriate, such catz.e:s raised in the objections as it deems appropriate.
The order shall control the subsequent course of the proceeding unless modified for good cause.
i 5.
In 5 2.754, paragraph (a) is revised to read as follows :
i 2.754 Proposed findings and conclusions.
(a) Any party to a proceeding =ay, or if directed by the presiding officer shall, file proposed find-i ings of fact and conclusions of law, briefs and a i
proposed form or order of decision within the time provided by the following subparagraphs, except as otherwise ordered by the presiding officer :
(1) The party who has the burden of proof shall, within thirty (30) days after the record is closed, file pFoposed IIndings of fact and conclu-sions of law and briefs, and a p cposed form of order or decision.
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(2).0ther parties may file proposed findings, conclusions of law and briefs within forty (40) days after the record is closed.
However, the stEIf may file such proposed findings, conclusions of law and I
briefs within fifty (50) day.s after the record is closed.
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(3) A party who has the burden of proof may reply within five (5) days after filing of croposed findings and conclusions of law and briefs by other parties.
(Sec. 161p., Pub. L. No.83-703, 60 Stat. 948 (42 U.S.C.
2201); Sec. 201, as amended, Pub. L. No.93-438, 88 Stat.
1243 (42 U.S.C. 5841).)
For the Com=ission l
SAMUEL J. CHILK Secretary of the Commission Dated at 'Jashington, D.C.
this day of 1981.
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