ML20004D058
| ML20004D058 | |
| 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-RICM, TASK-SE SECY-81-311, NUDOCS 8106080277 | |
| Download: ML20004D058 (32) | |
Text
{{#Wiki_filter:,g g.:ir:-: ?- ^ ' - - e i ja t May 18, 1981 SECY-81-311
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,,i !Ihr$ljl\\ O Vas g-RULEMAKING ISSUE (Commission Meeting) For: The Commission From: Leonard Bickwit, Jr., General Counsel
Subject:
Proposed Rule icending Part 2 Discussion: Attached for your consideration is a draft Federal Register Notice soliciting public com-ment on several proposed changes to 10 CFR Part 2. These amendments would require a person seeking intervention in formal NRC hearings to set forth the facts on which he bases his conten-tion and the sources and documents he uses :o establish those facts, limit the number of inter-rogatories that a party may file on another party in an NRC proceeding, and permit the Board ~ to require oral answers to cotions to compel and service of documents by express mail. OGC, the Chairman of the ASLAP, :he ASLBP and OELD concur in the proposed draf:. ^ \\ (: (nM(-Q: 7. C' r- _\\ i Leonard Bickwit, Jr. l General Counsel A :achcent: Draf: Proposed Rule Disrribution: Cc= issioners Ccmmission Staff Offices EDO ACRS ASLEP ASLAP CONTACTS: Trip Rothschild, OGC 4-1465 C. 'J. Reamer, OGC 4-1493 810008 417
[7590-01] NUCLEAR REGULATORY COMMISSION (10 CFR Part 2] RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS Modifications to the NRC Hearing ?:ocess AGENCY: U.S. Nuclear Regulatory Co==ission ACTION: Proposed Rule i
SUMMARY
The Nuclear Regulatory Co 'ssion is considering several amendments to its Rules of Practice to facilitate expedi:ed conduct of its adjudicatory proceedings. These amendments would require a person seeking intervention 'in for=al NRC hearings to set forth the facts on which he bases his contentions and the sources or docu=ents which he uses to establish those facts, limit the nu=- ber of interrogatories that a par:y =ay file on another party in an NRC proceeding, and per=it the boards to require oral answers do~ soEions do ec=pel' a'nd service of docu=ents by express = ail. ~ l %~.. - l OATES: Co==en period expires on (20 days after publication in the Federal Rer'ister). No rec,uests for ex:ensions of time will be granted. 1 ADDRESSES: All interested persons who desire to sub=1: ce==ents in connection with the proposed a=end:ents should send the= to the Secretary of the Cc==ission, U.S. Nuclear Regulatory Co==ission, Washington, D.C. 20555, A::ention: Docketing and Service 3:anch. Ccpies of co==ents on the proposed a=end=ents =ay be examined at t l I
2 [7590-01) 2 the Co==ission's~ Public Document Room at 1717 H Street, N.W., Washington, D.C. FOR FURTHER INFORMATION CONTACT: Mar tin G. Mals ch, Es q., Dep'uty General Counsel, U.S. Nuclear Regulatory Cocnission, Washington, D.C. 20555 (202-634-1465). SUPPLEMENTARY INFORMATION: In recent weeks the Cocmission has been exasining its hearing process to determine if there are means to expedite the hearing process without reducing its quality or fairness. As a result of this review the Commission has sought t ce==ent on several proposed amendments to 10 CFR Part 2, the i Cor #rsion's Rules of Practice (46 Fed. Rec. 17216, March 18, 1981) and issued a " Statement of Policy on the Conduct of Licenc-ing ?:oceedings". The Cc=rissicn is soliciting cc==ents on the following additional chcnges to the Co= mission's Rules of ?:ac-t l tice: l 1. Intervention in NRC Proceedines f Formal administrative hearings are always conducted by NRC as par ) of its proceedings on applications for cens :uction per=its for nuclear power plants and frequently en applications for cperating l licenses and license amend =ents. Any = ember of the public whose l interes =ay be affected by the proceeding is en:itled to partici-Y pace in NRC hearings unde: 10 CFR 2.714 and section 189a of the Y Acccic Energy Act (42 U.S.C. 2239a). i e o A
~ 3 [7590-01] The Commission is concerned that its present intervention process is not satisfactorily serving the public's interest in efficient resolution of nuclear plant licensing issues. Trial-type hearings are generally acknowledged as best-suited for the resolution of contested factual issues. Thus, one means to more efficient decisionmaking is to reduce the possibility that time and resources may be expended by the parties and hearing tribunals in a proceed-ing on issues that do not involve material factual disputes. To this end,'the proposed amendment seeks to relate the Commission's rules on intervention (10 CFR 2.714) more clearly and directly to the fact-oriented character of NRC licensing hearings. Under the proposal, a person who petitions so intervene and request a hear-ing would be required to set forth at the outset the facts on which-he bases his centention-and the sources c: dccuments which he has used or intends to use to establish those facts. This require =ent would help deter intervenors who do not intend to litigate actively their claims and would give other parties early notice of an intervenor's case so as to afford opportunity for an early motion for summary disposition where there is no factual dispute. The Co= mission official designated to rule on interven-tion questions could dismiss or otherwise impose a sanction respecting any petition, request, or contention that could be determined not to a satisfy the requirement. The Atomic Energy Act of 1954, as amended (42 U.S.C. 2239a) pro-vides that "the Co==ission shall grant a hearing upon the request
I 4 (7590-01] ofanypersonwhoseinterest=aybeaffectedbyltheproceeding, and shall admit any such person as a party to such proceeding." Cc==ission rules for intervention (10 CFR 2.714(b)) further provide that a person who petitions to intervene in a proceeding must later submit "a supplement to his petition to intervene which must include a list of contentions which petitioner seeks to have litigated... and the bases for each contention set forth with reasonable specificity." To participate as a party, the petitioner must advance at least one contention that satisfies this require-ment. The requirement of a list of contentions was intended to serve as th mechanism by which a would-be intervenor informs the parties to the proceeding and the hearing tribunal of the issues upon which he wishes to be heard. The list of contentions, in turn, uas incended :: crys:allite :he ;ucs:icn whe: hor such ~ issues are germane to matters properly within the scope of the proceeding-as set-out in the notice of hearing or notice of oppor-tunity for hearing. Admitted contentions are included as matters in controversy in a proceeding and, thus, govern the scope of administrative disecvery under 10 CFR 2.740(b)(1). Under present practice, the Cc=nission official designated to rule on intervention questiens ex= #nes each centention to determine whether (1) the centention is stated with the requisite specifi-city, ( 2) the basis is adequately delineated, and (3) the issue sought te be raised is cognizable in an individual licensing P00RDHINAL
5 [7590-011 proceeding. Alabaca Power Co. (Joseph M. Farley Nuclear Plant, Uni:s 1 and 2), ALA3-IS2, 7 AEC 210, 216-17 (1974). The examination is limited to what appears within the four corners of the contention as stated.' Nd inquiry is =ade into the =erits of the contention. All that is required is that the petitioner l " state his reasons (i.e., the basis) for his contention...." Houston Lizhtinz and Power Co. ( Allens Creek Nuclear Generating Station, Unit 1); ALA3-590,.11 NRC 542, 548 (1980). The peti-tiener is under no obligation to demonstrate the existence of some factual support for a contention, as a precondition to its accept-ance under 10 CFR 2.714 That obligation currently arises later in the proceeding, either in opposition to a cotion for succary disposition filed by another party (10 CFR 2.749) or a: the evi-denciary hearing. ALA3-590 suora, 11 NRC at 549-51. t Under the proposed anendment, an interested person petitioning to intervene in an NRC licensing proceeding and requesting a hearing must set forth in the supplement required by 10 CFR 2.714(b) a concise statement of the facts supporting each contention together with references to the specific sources and do,cu=ents which have been or will be relied on to establish such facts. Thus, the acendment would strengthen one of the purposes of the present 1 l rule, which is to give notice to the parties and the adjudicatory board of a would-be intervenor's concern, by also recuiring notice i 1 of (1) the facts on which the concern is based, and (2) the sources 1 P90RORENA
6 (7590-01] or references which have been or will be used to establish those facts. Referene-to lengthy or g2neral studies and reports would not suffice. I:, for example, the SEIR Report or the Reactor Safety Study 's relied upon, specific pages, sections or portions of the document must be referenced. The amendment.would peEmit the staff or applicant to seek and presiding NRC official to compel a more specific or definite statement if the would-be intervenor (1) fails to submit any facts, sources, or references at all, or (2) submits purported facts, sources, or references which are se vague as to give inadequate notice. The presiding officer would have the auth-ority to impose appropriate sanctions against a person whose supplemen: failed ro satisfy the proposed requirement, including the power to dismiss a contention. As under existing practice, a person who fails to file a supplenent which satisfies the require-ment with respect to at least one contention would not be per-mitted to participate as a party. See 10 CFR 2.714(b). l The proposed change does not permit the NRC official authorized to rule on petitions for intervention to consider whether the facts, sources, or references contained in a supplement are legally I .=ufficient to prove the cententicn. However, en obviously insuf-ficient factual or evidentiary basis could pronpt the staff or i applicant to move early for summary disposition. l
7 (7590-01] In recognition that one purpose of the contention process is to help frame the scope of subsequent proceedings, an intervenor admitted to a proceeding would not be permitted, absent good cause, to seek or establish facts or rely on sources as to which notice was not given when the contention was admitted.
- However, an intervenor would not be limited to the facts, sources, and references identified in his supplement if he can show good cause such as, for exa=ple, newly discovered facts, sources, or refer-ences not reasonably available when the contention was admitted.
The Co--ission believes that the proposed amendment would not unlawfully restrict the intervention rights provided by the Atomic Energy Act of 1954 (42 U.S.C. 2239a) or the Adminis trative Pro-cedure Act (5 U.S.C. 554-557). The amendment is intended to curtail an intervenor's right to participate only on those issues where the intervenor fails to identify the facts, sources,'and ~ ~ references on which he has or will rely for his contention. Under such circu= stances, the ti=e and resources expended on such a contention cannot be justified. I A =enber of the public has no absciute or uncenditional right to intervene in a nuclear power plant licensing proceeding under the Atomic Energy Act. BPI v. Atecic Enercy Cocmissien, 502 F.2d 424 1 l (D.C. Cir. 1974). Section 189a of the Act which provides for intervention is subject to the Co=nission's rulecaking power under 1 i
~ 8 [7590-01] section 161p and, thus, to reasonable procedural requiremen:s designed to further the purposes of the Act. SPI v. Atom #c Energy Commission, suora, 502 F.2d at 427, 428; see also American Trucking Ass'ns, Inc. v. United States, 6 27 F. 2d 1313, 13 20- 23 (D. C. Cir. 1980). Further= ore, the right to intervention under section 189a for a member of the public is explicitly conditioned upon a " request." The proposed amendments would, in effect, provide that a " proper request" by a member of the public shall include a statement of the facts supporting each con:ention together with ~ references to the sources and documents en which he relies to establish those facts. Finally, the Administrative Procedure Act creates no independent right to intervene in nuclear licensing proceedings. See Easton Utilities Coccissien v. Atomic Enerzy Cem=ission, 424 F. 2d 847, 852 (D.C. Cir. 1970) (en banc); cf. National Coal Operators' Assn. v. Klepoe, 423 U.S. 388, 39 8-99, 46 [ L.'Ed. 2d 580, 96 5. Ct. 809 (1976) (sta:utory words "opportuni:7 for hearing" =ay be keyed to a " request"). 2. Limit on Interrocatories I l Curren:1y, parties to NRC proceadings =ay file interrogatories on the other parties-without any specific lici:. The Commission is recuesting co= ment on a proposed ule which would provide that. i unless leave to file additional interrogatories is granted by a l l licensing board, parties may no: file more than 50 interroga:orics en ancther party in a single NRC proceeding. This rule would 1 l l l
9 (7590-01] I apply to hearings on construction permit and operating license applications, license amendment proceedings, antitrust hearings, and enforcement proceedings. For purposes of the rule, in deter-mining what constitutes an interrogatory, each subpart of a question (whether or not designated as such) would be considered as an interrogatory, except that requests for supporting reasoning relied upon or the name of a witness who will testify on a matter count as separate covered by an interrogatory response will not interrogatories. The rule would be applied in URC proceedings prospectively. Thus, regardless of how many interrogatories a party has filed prior to the effective date of the rule, it could still file an additional 50 interrogatories on each parry if the period fer discovery has not been closed. The Board would not grant requests to file interroga.cori~es eicee~d- ~ " ~ ing the limit set forth in the rule unless it determined that: (a) a rasponse to the extra interrogatories is essential for the party to adequately prepare its case, taking into account the number of contentiens in the proceeding, the co=plexity of issues, and timing of issuance and nu=ber of staff /applican documents; '(b) the informarion sought is not otherwise reasonably available; and (c) the party was not improvident in its use of its first 50 interrogatories. This rule, if adopted, would be designed to curtail abuse of the discovery process and to alleviate strains placed on the resources of the par:icipants in NRC proceedings when an inordinate number of interrogatories are filed. In recen
10 (7590-01] years, more than 20 United States district courts have adopted rules which similarly limit the number of interrogatories that may be filed en a party without leave of the court. l l l Even if this rule is adopted the NRC staff would continue its practice of voluntarily taking pertinent staff documents available to the public, and responding to requests for production of docu-ments under 10 CFR 2.741 and the Freedom of Information Act. 3. Motions to Commel Discoverv Under the Co==ission's cur:ent regulations, parties may file responses to motions to cocpel. To expedite t!RC proceedings, the Coc=ission is proposing amendments to its regulations which would provide the Roerds with the discretion to order that the responses be cade orally in a conference telephone call or other prehearing conference, rather than in writing. 4 Service The Coc=ission is also proposing to permit its licensing boards to recuire service of documents by express cail (nex: day de'_ivery). Currently, the Cc==ission's rules provide five days for cervice of documents. Use of express call in licized circu= stances could reduce this time to two days. The Cec =ission would expect express call delivery Oc be required only in those proceedings where it appears that construction of 100RORIKI
11 (7590-01] a facility may be finished prio: to the completion of the opera:- ing license proceedings, or other similar circumstances where expedition is especially important. Because of the expense of express = ail delivery, parties should be required to use that form of service only on those parties who are required to respend to the pleading being served. For example, a party may be required to file interrogatories en a party by express mail, but should not be required to express mail copies of the interroga-teries to the Board or to the parties Oc the proceeding which are not being asked to respond to the interrogatories. Alternatively, if a party prefers no: to use express tail, when so c:dered by the Board, it eculd use first class = ail and file its document three days earlier. REGULATORY FLEXIBILITY ACT: In accordance with the Regulatory l Flexibility Act of 19 80, 5 U.S. C. 605 (b), the Coc=ission hereby i I certifies that this rule will not, if promulgated, have a sig-nificant economic i= pact on a substantial number of small l l l entities. This rule affects the Commission's rules of pr, c: ice l and procedures by permitting expedition of the licensing process. PROPOSED REGULATORY CHANGES: Pursuant to the Accric Energy Act of 1954, as acended, the Energy Zeorganization Act of 1974, as 1 amended, and sectica 553 of the United States Code, notice is hereby given that adoption of the following acendments to 10 l CFR Part 2 are contemplated. t
[7590-01) 12 Part 2--RULES OF PRACTICE FOR DOMISTIC LICENSING PROCEEDINGS 1. In S 2.714, subsection (b) is revised to read as follows: 5 2.714 In tervention. (b) Not later than fifteen (15) days prior to the holding of the special prehearing conference pur-suant to S 2.751a, or where no special prehearing conference is held, fifteen (15) days prior to the holding of the first prehearing conference, the petitioner shall file a supplement to his petition to intervene which must include a list of the con-tantions which petitioner seeks to have litigated in the matter, and the bases for each contention set forth with reasonable specificity. The su= clement must set forth a concise statement of the facts succortinc each contention toce her with references to the s ecific sources and documents and oortions, sections or caces thereof which have been or will be relied upon to establish such facts. A cetitioner who fa Is to file such a supplement which satisfies the recuirements of this paragraph with respect to at least one contention will not be permitted to .cartici.cate as a party. Additional time for filing the supplement may be granted based upon a balancine of the factors in paragraph (a)(1) of this section. 2. 5 2.710 is revised tc read as follows: ~ S 2.710 Computation of time. In computing any period of time, the day of the act, event, or default after which the designated period of time begins to run is not included. The last day of the period so computed is included unless it is a Saturday, Sunday, or lecal holiday at the place where the action or event is to occur, in which event the period runs until the end of the next day which is neither a Saturday, Sunday, nor
- holiday, whenever a party has the right or is recuired to do some act er take some proceeding within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon by mail, five (5) days shall be added to the prescribed period.
Only two (2) days shall be added when a document is served by air ex=ress. P00R ORGINAL
13 (7590-01] 3. In 5 2.712, subsection (c) is revised to read as follows: 5 2.712 Service of papers, methods, proof. (c) How Service may be cade. Service =ay be made by personal delivery, by first class, certified or registered cail including at: = ail, by telegraph, or as otherwise authorized by law. Where there are numerous parties to a proceeding, the Cocsission may l make special provision regarding the service of papers. The cresiding office: may recuire service by excress mail. 4. In 5 2.720, subsection (h) is revised to read as follows : 5 2.720 Subpoenas. l \\ l l (h) (2) l (ii) In addition, a party may file with the ~ ~~ presiding officer written interrogatories to be~ answered by NRC personnel with knowledge of the facts designated by the Executive Director for Operations. Upon a finding by the presiding l office: that answers to the interrogatories are necessary to a proper decision in the proceed-ing and that answers to the interrogatories are not reasonably obtainable froc any other source, the presiding office may recuire that the staff answer the interrogar:r es.
- ne limits on the number of interrocateries that rav be servec on a : arty rursuant to $ 2.740b a0017 Oc the staff.
x l t 5. In 5 2. 730, subsection (h) is added which :eads ' as follows : 1
14 [7590-01] 5 2.730 Motions w (h) Uhere the motion in cuestion is a motion to ecmoel discoverv under this section or 5 2.7406, parties may file answers to the motion oursuant to paragraph (c) of this section. The Boarc, in its discretion, may order that the answer be riven orally during a telephone con erence or etr.e prehearing conference, rather than in wuiting. 1 6. La 5 2.740b, subsection (c) is added which reads as follows : $ 2.740b Interrogatories to parties (c) No party cay file = ore than fifty (50) interrogatories on another party during the course of the preceeding, unless leave to do so is granted by the presiding officer. For purposes of this section each subpart of a question (whether or no designated as such) is considered as an interroga-4 t tory, except that requests for supporting reasoning relied upon or the name of a witness who will testify on a matter covered by an interrogatory response will not count as separt:a interrogatories. The Board will grant leave to file addi:ichal interrogatories if it determines that: (1) response to the extra interrogatories is assential for~a party to prepare adequately its case, taking into . account the number of conten: ions in the proceeding, the complexity of issues, and timing of issuance and l number of staff /applicaer documents; (2) the infor-mation sought is not otheJwise reasonably available; and (3) :he party was not improvident in its use of its firs 50 interrogatories. For the Ccc=ission I l SAMUEL J. CHILK Secretary of the Ccemis sion l Dated at Washington, D.C. l this day of 1981. i .. ~
Commissioner Bradford's proposed revisions to SECY-81-307 (Attachment), distributed at 3/19/81 Commission meeting on Discussion of Revised Licensing Procedures: ? '-{759h-01) ~ NUCLEAR REGULATORY COMMISSION .. 10 CPR Part 2 Immediate Effectiveness Rule Commission Review Procedures for Power Reactor Operating Licenses AGENCY: Nuclect Regulatory Commission. ACTION: Final Rule.
SUMMARY
The Nuclear Regulatory Commission hereby amends its, r review procedures for h Licensing Board decisions'en q a n~? nuclear power reactior operating license applications by recuiring d irect Commission review of those decisions to determine whether their effectiveness should be delayed pending normal acenc.v appellate review. The amendment elirinates the Atomic Safety and ( Licensing Appeal Board review directed by Appendix 3 to Part 2 of the Cc= mission's rules of practice. T h i ; c a c;.d = .t ic i. ::: pence l ~ .tc tM,- 7-Ac"-. hi;h thc MRC.. ..2dc in--- in;c., ;rc-ting i2m l -; c. f 0 t' re[fi-a"ASts la e S C -lC arn Od-f rC.-' IO?i C - cf O.C O S;id e..t O t-n. ....e .., ~ u.,,s ,a u ..u s u u-..- .C-C.. A L e b. 2 <N u: ~ e n_. .4w g ww.w; -.w _ w ic:-procc2: cc-h-rcsuIt-cf S.:--Aive. w. u.~..;RC i.eif w m e; ;;.he "I.reries_ The amendment is intended to reduce the length of time between a Licensing Board decision permitting fuel l loadinc and Icw-cowe-testing or full power operation and the a l on O T' M l Commission's decision to permit the Licensing Board's decision to l fi l become effective. EFFICTIVE DATE: [ Insert date of publication in the FEDERAL REGISTER.]
.,S,,'. 2 -(75,90-01) FOR FURTHER INFORMATION CONTACT: Martin G. Mals'ch,, Esq., Deputy - General Counsel, U.S. Nuclear Regulatory Commission",. Washington,' D.C., 205e5 (202-634-1465). SUPPLEMENTARY INFORMATION: Appendix B to Part 2 was adopted some one-and-one-half years ago as an interim response t'o the, Three Mile Island (TMI) accident inordertoincreaseCommiksionsuper-vision of adjudicatory licensing decisions involving power reactors. .Under Appendix B, an initial decision by an Atomic Safety and' Licensing Board favoring grant of a nuclear power reactor construction permit or operating license di.d not become effective until both the Atomic Safety and Licensing Appeal Board and the Commission had reviewed that decision end decided whether it should become effective. The review process contained in Appendix B nominally postponed the issuance of licenses for close 4 to three months beyond a favorable Licensing Board decision. Following the Three Mile Island accident, the Commission reassigned most of the staff who had been reviewing applications seeking authorization to construct or operate nuclear power reactors to other tasks, such as investigating the causes of the accident and developing new regulations based on the lessons learned. As a direct resu'. of these reassignments construction of a number of plants will be finished prior to any effective decision by the Commission on the issuance of an operating
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.c J. ...:: 7 [7,590-01) 3 license. On April 3,1981, the Commission published in the FEDERAL REGISTER proposed alternative modifications of Appendix B ' ~ 46 Fed. Rec. 20215. designed to expedite the review process. Two alternatives were set out for public comment: , Option,A, which retained a period of deferred ef fectivenes's pending ex- ~ pedited Commission review of favorable Licensing Board decisions; and Option B, which would grant immediate effectiveness to favor-cble Licensi.ng Board decisions while retaining the Appeal Board and Commission review process of Appendix B. The' alternatives were designed to reduce or eliminate the delay between completion of construction and issuance of an operating license following a favorable Licensing Board decision. Approximately 90 comments on the proposed rule were received from interested individuals and organizations, divided along two . J. distinct lines which may be characterized as intervenor-and nuclear industry-oriented positions. Intervenors, over two-favored retention of Appendir B, gener-thirds of the commenters, ally citing concerns that elimination of Appendix B reviews would provide less assurance that OiI-related policy concerns would be I included in decisions. Nuclear industry commenters, meanwhile, f avored Option B of the prcposed alternative modifications, generally citing the thoroughness of the review process before Appendix B takes hold. These commenters of ten stated a strong preference for full reinstatement of the immediate effectiveness l l
( a d ~ .. ~ .[7590-01] 4 Sever'lindustrycommentersalsourgedreinstatementof rule. a the immediate effectiveness rule for construction permits, a is the subject of another, separate rulemaking.1/ matter that a brief analysis of the public comments, was SECY 81-prepared for the Commissioners by the Office of 'the General along with a copy of all comments receive'd, is Counsel and, available for public inspection at the NRC Public Document Room, located at 171.7 H. Street, NW., Wa hington, D.C .3.io row h L ' em 'd5 $RP The Commission believer '% t cu' tantive 1 uui.=1443, ze g riv+- .D'y& J L d Qw e.xp' MSU k C-WM k i.; l' #t c' 'S c '"m m"c2-etsf;e r dente :!c.;;fficient!" ea" f*&Q
- OLLM,
-{- AL Yk Y 3, ~ m -g.7,-~...,c'tme ' a t en. z um p.. e uherew drat--the fullAppendixBreviewsofoperatinglicensedecisionsarenok Therefore, some changes to Appendix B are bases necessary. warranted in order to avoid unwarranted and expensive delays. concideration,Te Commission has decided to adopt p:-:n d : This decision is based uoon a balancing the proposed Option A. & lc< E l.o n l % d w of two competing factors: (1) the benefit of incrc::04. assurance that nuclear power reactor operating licenses are issued only (2) the costs asso-when consistent with Commission policy; and ciated with postponing operation of completed plants. S.ct this amendment does not O.c Cc.mic i.. fiti...,r M.w c ^ ~
- 34. Cow.v. Ocommitment to the protection of public health and compromise it-Thorough technical safety A fety or to a fair hearing process.
reviews of license applications by the NRC staff and the Advisory 1 1/ See 45 Fed. Rec. 34279 (May 22, 1980).
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-w 5 p590- W Committee on Reactor Safeguards, the availabilit'y of public hearings on license applications, and the Comm'issions. inherent supervisory authority form the basis of the network o.f procedural safeguards intended to implement this commitment to a fair de-cision process and public health and safety. yhese are all ' unaffected by the instant rule change. When warranted, stays of effectiveness remain available pursuant to the. standard procedure and criteria of 10 CFR 2.788. The Commission review provided for in this amendment will focus narrowly on significant policy issues. ~ wh2h Sc/c bccn br-cught tc 4hc ferrh ricr. % t4 cati w Lg 1m . persona 1-steGfh The Commission does not intend,to review the entire r.ecord developed during the licensing proceeding. Because these amendments relate solely to procedural matters and serve to relieve procedural restrictions on licensees, the Commission has determined to make them effective upob publication in the FEDERAL REGISTER. Finally, the format of the rule has been revised to conform to i FEDERAL REGISTER guidance on proper format, removing Appendix B and incorporating the Appendix 3 procedures, as amended, into 10 CFR i 5 2.764. REGULATORY FLEXIBILITY ACT: In accordance with the Regulatory Flexibility Act of 1980, 5 U.S.C. 605(b), the Commission hereby certifies that this rule will not, if promulgated, have a sig-nificant economic impact on a substantial number of small entities. .- ~ -,. _r-
? ..? ;.~. . '(7590-01) 6 This rule af fects the Commission's Rules of P'rac ice and pro-cedures by permitting expedition of the licensing process. Pursuant to the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and section 553 of the United States Code, notice is hereby given of the ad, option cf the following amendments to 10 CFR Part 2. 1. 10 CFR Part 2 is amended by. removing Appendix B. 2. 10 CFR S' 2.'764.'is amended by revising paragraphs. (a) and (b) to read as follows and by adding new paragraphs (e) and (f). 2.764 Immediate Effectiveness of initial decision. directing issuance or amendment of construction permit or operating license. (a) Except as provided in paragraphs (c) through (f) of this 4 section, an initial decision directing the issuance or. amendment of i construction permit, a construction authorization,' or an operating license shall be effective immediately upon issuance unless the presiding officer finds that good cause has been shown b a party why the initial decision should i not become immediately ef fective, subject to the review thereof and further dc ision by the Commission upon exceptions filed by any party pursuant to. S 2.762 or upon its own motion. (b) Except as provided in paragraphs (c) through (f) of this section, the Director of Nuclear Reactor Regulation or
,.,l 1..'[h'., ~ 7 D ~~.,[7590-01] Director of Nuclear Material Safety and Safe' guards', as i appropriate, notwithstanding the filing of exceptions, shall issue a construction permit, a construction authorization, authorized or an operating license, or amendments thereto r by an initial decision, within ten (10) day,s from the date of issuance of the decision. (e) Constru'ction Permits i (1) Atomic Safety and Licensing Boards Atomic Safety and Licensing Boards shall hear and decide all i 'I issues that come before them, indicating in their decisions the type of licensing action, if any, which thei.r decision would authorize. The Boards' decisions concerning construction permits shall not become effective until the Appeal Board (2) and Commission actions outlined below in paragraphs and (3) have taken place. In reaching their decisions the Boards should interpret existing regulations and regulatory policies with due con-sideration to the implications for those regulations and In this regard policies of the Three Mile Island accident.
..O-4 8 ',(7590-O'1] should be understood that as a result 5f. analyses still it under way the Cor.imission may change its presen't regulations and regulatory policies in important respects} and' thus compliance with existing regulations may turn out to no longer warrant approval of a license applicati6n. As pro-vided in paragraph (3 ) below, in addition to tak{ng generic rulemaking actions, the Commission will be providing case-by-case guidance on changes in regulatory policies in conduct-ing its reviews in adjudicatory proceedings. The Boards 1 shall, in turn, apply these revised regulation,s and policies in cases then pending before them to the extent that they are applicable. The Commission expects the Licensing Boards to pay particular attention in their decisions to analyzing the evidence on those safety and environmental issues arising 4 under applicaole Ccmmission regulations and polkcies which the Boards believe present serious, close questions and which the Boards believe may be crucial to whether_a license should become effective before full appellate review is completed. Furthermore, the Boards should identify any aspects of the case which in their judgment, present issues on which prompt Commi ion policy guidance is called for. The Boards may request the assistance of the parties in identifying such policy issues but, absent specific Com-I mission directive, such policy issues shall not be the subject of discovery, er. amination, or cross-examination. l w -.-m- -m e -,wy ,,,--,,,n--,.,---e w
..s '('7590-01] 9 ~. ~ ~ (2) Atomic Safety and Licensing Appeal. Boards Within sixty days of the service of any Licensing Board . decision that would otherwise authorize issuance of.i con-struction permit, the Appeal Board shall decide any stay motions that are timely filed. 1/ For the purpp'se of this policy, a " stay" motion is one that seeks.to defer the effectivenes.s of a Licensing Board decision beyond the perio'd'necess'ary for the Appeal Board and Commission action described -herein. If no stay papers are filed, the Appeal Board shall, within the same time period (or earlier if possible), analyze the record and construction permit de-cision below on its own motion and decide whether a stay is warranted. It shall not, however, decide that a stay is ( warranted without giving the affected parties an opportunity l 'to be heard. f i l 1/ Such motions shall be filed as provided by 10 CFR 2.788. No l recuest need be filed with the Licensing Board prior to filing with the Appeal Board. Cf. Public Service Company of I New Hampshire (Seabrook Staticn, Units 1 and 2), ALA3-338, 4 NRC 10 (1976). The sixty-day period as been selected in recognition of two facts: first, allowir.g time for service by mail, close to thirty days may elapse before the Appeal Board has all the stay papers before it; second, the Appeal Board may find it necessary to hold oral argument. l l [
'. ? ,e. ',',(75,90-01] 10 ~ In deciding these stay questions, the Appeal B~oard shall Nowever, in employ the procedures set out in 10 CFR 2.788.- addition to the factors set out in 10 CFR 2.788 (e), the Board will give particular attention to whether is'suahce of the permit prior to full administrative review' may: (i) create novel safety or environmental issues in light of the Three Mile Island accident; or (ii) prejudice review of In addition to significant safety or environmental issues.. deciding the st&y issue, the Appeal Board will inform the Commission if it believes that the case raises issues on ~ which prompt Commission policy guidance, particularly guidance on possible changes to present Commission regulations and policies, would advance the Board's appellate review. If the Appeal Board is unable to issue a decision within the sixty-day period, it should explain the cause of the delay to the Commission. The Commission shall thereupon either allow the Appeal Board the additional time necessary to complete its task or take other appropriate action, including The running of the sixty-day taking the matter over itself. period shall not operate to make the Licensing Board Cacision Un ess on..erwise ordered by the Commission, the effective. Appeal Board will conduct its normal appellate review of the Licensing Board decision af ter it has issued its decision on any stay request. l l . ~ _ _. _ -. -..,, - ~_--
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11 s. ' (5590-01) ~ (3) Commission ~ Reserving to itself the right to step in at anp earlier stage of the proceeding, the Commission will, upon receipt of the Appeal Board decision on whether the effectiveness of a Licensing Board construction permit. decision shhul'd be further delayed, review the matter on its own motion, apply-ing the same criteria. The parties shall have no right to file pleadings with the Commission with regahd to the Appeal Board 's stay decision unless requested to do so. The Commission will seek to issue a decision in each' con-struction permit case within 20 days of receipt of the Appeal Board's stay decision. If the Commission does not 1 act finally within that time, it will state the ' reason for J its further consideration and indicate that time it antici-pates will be required to reach its decision. In such an event, if the Appeal Board has not stayed the Licensing Board's decision, the initial decision will be considered stayed pending the Commission's decision. In announcing the result of its review of any Appeal Board stay decision, the Commission may allow the proceeding to I D ,,---.,en-, e - -,,, e.. .m, ,,n_ + - -, - -,., -,e ge, e-----> m y y
,c.. i .?* 1 IiS9,0.01) 12 e run its ordinary course or give whateve'r l'nstructions as to' the future handling of the proceeding it deems appropriate (for example, it may direct the Appeal Board to review the merits of particular issue.s in expedited fashion; furnish policy guidance with respect to particular'iss'ues; or decide toreviewthemeritsofparticularissuesitsel[, bypassing the Appeal Board). Furthermore, the Comm.ission may in a partigular. ca.se determine that compliance with existing ~ ~ regu1ations a'nd policies may no longer be sufficient to warrant approva'. of a license application and.may alter those regulations and policies. (f) Operating Licenses (1) Atomic Safety and Licensing Boards Atomic Safety and Licensing Boards shall hear and. decide all issues that ccme before them, indicating in their decisions the type of licensing action, if any, which their decision would authorize. The Board's decisions concerning fuel loading and low-power testing operating licenses or full-power operating licenses shall not become effective until the Commission actions outlined below in paragraph (2) have taken place.
..V 13 -l. ~ - (- i.{.7590-01) - }.._ '. In rea'ching their decisions the Boards shoul'd interpret existing regulations and regulatory policies,with due con-sideration to the implications for those regulations and policies of the Three Mile Island accident. In this. regard it should be understood that as a result of a'nalyses still under way the Commission may change its present*crdgulations and regulatory policies in important respects and thus compliance with existing regulations may' turn out to no longer. warrant approval of a license appli6ation.~ 5s pro-vided in paragraph (2) below, in addition to taking' generic rulemaking actions, the Commission will be providing case-by-case guidance on changes in regulatory policies in con-ducting its reviews in adjudicatory proceedings. The Boards shall, in turn, apply these revised regulations and policies in cases then pending before them to the extent that they are applicable. The Commission expects the Licensing Boards to pay pa.-ticular attention in their decisions to analyzing the evidence on those safety and environmental issues aris-ing under applicable Commission regulations and policies which the Boards believe present serious, close questions and which the Boards believe may be crucial to whether a license should become effective before full appellace review is completed. Furthermore, the Boards should identify any aspects of the case which in their judgment, present issues ~
.,1, .[7590.01) 14 on which prompt Commission policy guidance is called for. The Boards may request the assistance of the parties'in identifying such policy issues but, absent specific Com-mission directive, such policy issues shall not be the subject of discovery, examination, or cross-examination. (2) Commission Reserving 'the right to step in at an earlier timIe, the Commission will, upon receipt of the Licensing Board deci-sion authorizing issuance of an operating license, review the matter on its own motica to determine whether to stay the effectiveness of the decision. An operating license decision will be stayed by the Commission if it determines that operation would prejudice correct resolution of serious safety issues. The parties shall have no right to file pleadings with the Commission with regard to this Commission review unless requested to do so by the Commission, except that no exten-sive stay shall be issuec.ithout giving the affected parties an opportunity to be heard.
.4 ., n 14a P00R' ORIGINAL on which prompt Commission policy guidaned is called for. The Boards may recuest the a'ssistance.of the parties in identifying such policy issues but, absent specific Commission directive, such pol' icy' issues shall not be the subject of discovery, examina' tion, or cross-examination. (2) Commission ~ ~ f od t-<* Reserving the rif.r.t to step in at an earlier time, the Commission will, upon receipt of 'the Licensing Board i decision authori::ing issuance of an operating' license, review the matter on its own motion to determine l whether to stay the effectiveness of the decision. An 1 operating license decision will be stayed by the Commission it b in the public interest to if it determines that do so, based on a consideration of the gravity of the substantive issue, the likelihood that it has been 1 I resolved incorrectly below, the degree to which correct resolution of the issue would be prejudiced by operation pending review, and other relevant public interest ~ factors. W 0*$ O L C u is k U $ L k q5 s' W.e~.ca. ties sha)-1..hava,-nc-.right-toki1-ed?. b C ~. ~.it & p ad f de#1aus,is the 0 ^-i c c iv, 4 k b.<- P u E'< 1
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4 w r i gj,Qmn,.tnet )fo extensive stay shall be issued without giving the affected parties an opportunity to be heard.
15 [7590-01] The Commission intends'to issue a decision re,ga$ ding each ~ fuel loading and low-power testing license within 10 days 6f receipt of the Licensing Board's decision and regarding each full-power operating license within 30 days'of receipt of the Licensing Board's decision. In announcing a stay deci.sion, the Commission may allow the proceeding to run its ordinary course or give wh:trc_.- instructions as to the future handling of' Ehe p'roceeding 44-h i r rri_.__ (for example, it may direct the,A' peal p Board to review the merits of particular issues.in expedited fashion; furnish policy guidance with respect to particular issues; or decide to review the merits of particular issues itself, bypassing the Appeal Board). Furthermore, the Commission may in a particular case determine that com-pliance with existing regulations and policies may no longer be sufficient to warrant approval of a license application and may alter those regulations and policies. In operating license cases, the Commission's review under this section is with- : prejudice to Appeal Board or other Commission decisions, including decisions on stay recuests filed under 10 CFR 2.788.
..?.: - y,- (7.590-01] 16 (Sec. 161, Pub. L. 83-703, 68 Stat. 9 4 8.( 4 2 U. S. C. 2201); sec. 201, as amended, Pub. L. 93-438, 88 S. tat. 1243, Pub. L. 94-79, 89 Stat. 413 ( 4 2 U. S. C. ' 58 41') ) Dated at Washington, D.C., this day of May, 1981. For the Nuclear Regulatory Commission, Samuel J. Chilk, ~ Secretary of the Commission i e 9 9 1 -}}