ML20004D251
| ML20004D251 | |
| Person / Time | |
|---|---|
| Site: | Big Rock Point File:Consumers Energy icon.png |
| Issue date: | 05/20/1981 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| Shared Package | |
| ML20004D242 | List: |
| References | |
| NUDOCS 8106090071 | |
| Download: ML20004D251 (12) | |
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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 (ASLBP) and the current status of proceedings before its individual boards.
In a series of public meetings, the Conunission has examined at length all major elements in its licensing procedure.
It is clear that a number of difficult problems face the agency as it endeavors to meet its responsibili-ties in the licensing area.
This is especially the case with regard to staff i
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 nuclear plant is ready to operate.
- Now, for the first time the hearings on a number of operating license applications may not be cor.:luded before construction is completed.
This situation is a consequence of the Three Mile Island (TMI) accident, which required a reexam-ination of the entire regulatory structure.
After TNI, for over a year and a half, the Commission's attention and resources were focused on plants which were already licensed to operate and on the preparation of en action plan which specified changes necessary for reactors as a result of the accident.
Although staff review of pending license applications was delayed during this period, utilities which had received construction pennits continued to build the authorized plants.
The staff is now expediting 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 810609ocn1
2 licenses.
If these proceedings are not concluded prior to the completion of construction, the cost of such delay could reach billions of dollars. The Commission will seek to avoid or reduce such delays whenever measures are available that do not compromise the Commission's fundamental commitment to a fair and thorough hearing process.
Therefore, the Commission is issuing this policy statement on the need for the balanced and efficient conduct of all phases of the hearing process.
The Commission appreciates the many difficulties fated by its boards 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 not primarily of the boards' own making.
However, the boards will play an important role in resolving such difficulties.
Individual adjudicatory boards are encouraged to expedite the hearing process by using those management methods already contained in Part 2 of the Commission's Rules and Regulations.
The Commission wishes to emphasize though that, in expediting the hearings, the board should ensure that the hearings are fair, and produce a record which leads to high quality decisions that adequately protect the public health and safety and the environment.
Virtually all of the procedural devices discussed in this Statement are currently being suployed by sitting boards to varying degrees.
The Commission's reemphasis of the use of such tools is intended to reduce the time for completing licensing proceedings.
The guidelines set forth below are not to be considered all inclusive, but rather are to be considered illustrative 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 procedt res.
In the final analysis, the actions, consistent with applicable rules, which may be taken to conduct an efficient j
hearing are limited primarily by the good sense, judgment, and managerial 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 proceeding does not relieve that party of its hearing obligations. khen a participant fails to meet its obligations, a board should consider the imposition of sanctions against the offending party.
A spectrum of sanctions from minor to severe is available to the boards to assist in the management of proceedings.
For example, the boards could warn the offending party that such conduct will not 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 contentions, impose appropriate 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 potential for harm to other parties or the orderly conduct of the proceeding, whether its occurrence is an isolated incident or a part of a pattern of behavior, the importance of the 1
4 saf ty or environmental concerns raised by the party, and all of the circum-nces.
Boards should attempt to tailor sanc!'ons to mitigate the ham 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 Comission's policies in this regard.
When the NRC staff is responsible for the delay of a proceeding the Chief Administrative Judge, Atomic Safety and Licensing Board Panel, should infom 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 be served on all parties to a proceeding and the boa rd.
III.
SPECIFIC GUIDANCE A.
Time The Commission expects licensing boards to set and adhere to reasonable schedules for proceedings.
The Boards are advised to eatisfy 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.
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 affected by the proceedings and who raise [s] substantially the same l
5 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 findings of fact, conclusions of law, and argument.
Where such consolidation has taken place, those functions should not be performed by )ther intervenors except upon a showing of prejudice to such other intervenors' interest or upon a showing to the satisfaction of the board that the record would otherwise be incomplete.
C.
Negotiation f
The parties should be encouraged to negotiate at all times prior to and during the hearing to resolve contentions, settle procedural disputes, and better define issues.
Negotiations should be monitored by the board through written reports, prehearing conferences, and telephone conferences, but the boards should not become directly involved in the negotiations themselves.
D.
Board Management of Discovery 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 i: sues may be narrowed, stipulated, or eliminated and so that evidence to be presented at hearing can be stipu-lated or otherwise limited to that which is relevant.
The Commission is concerned that the number of interrogatories served in some cases may place an undue burden on the parties, particularly the NRC staff, and may, as a consequence, delay the start of the hearing without reducing the scope or the length of the hearing.
6 The Commission believes that the benefits now obtained by the use of interrogatories could generally be obtained by using a smaller number of better focused interrogatories and is considering a proposed rule which would limit the nmnber of interrogatories a party could file, absent a rul-ing by the Board that a greater number of interrogatories is justified.
Pending a Commission decision on the proposed rule, the Boards are reminded that they may limit the number of interrogatories in accordance with the Commission's rules.
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 Commission 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 i
schedule immediately after contentions have been admitted.
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 information 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 Rulings on Prehearing Matters The licensing boards should issue timely rulings on all matters.
In pa r-ticular, rulings should be issued on crucial or potentially dispositive issues at the earliest practicable juncture in the proceeding.
Such rulings may eliminate the need to adjudicate one or more subsidiary issues.
Any ruling which would affect the scope of an evidentiary presentation should be rendered well 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 guidance is needed, a board should promptly refer or certify the matter to the Atomic Safety and Licensing Appeal Board or the Commission.
A board should j
exercise its best judgment to try to anticipate crucial issues which may require such guidance so that the reference or certification can be made and the response received without holding up the proceeding.
G.
Summary Disposition In exercising its authority to regulate the course of a hearing, the boards should encourage the parties to invoke the summary disposition procedure on
8 issues where there is no genuine issue of material fact so that evidentiary hearing time is not unnecessarily devoted to such issues.
H.
Trial Briefs, Prefiled Testimony Outlines and Cross-Examination Plans All or any canbination of these devices should be required at the discre-tion of the board to expedite 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 benefit in most proctedings.
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.
Combinine Rebuttal and Surrebuttal Testimony For particular, highly technical issues, boards are encouraged during rebuttal and surrebuttal to put opposing witnesses on the stand at the same time so that each witness will be able to comment immediately on an opposing witness' answer to a question.
Appendix A to 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.
Filing of Proposed Findings of Fact and Conclusions of Law Parties should be expected to file proposed 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.
.~
9 K.
Initial Decisions
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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 canpleted 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 manner, before the end of construction. As we have noted, that process has not, in the past, extended beyond completion of plant construction.
Because of the considerable time that the staff had to spend on developing and carry-ing out safety improvements at operating reactors during 1979-1980, in the wake of the Three Mile Island accident, this historical situation has been 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 statement.
10 As a final matter, the Comission observes that in ideal circumstances operating license proceedings should not bear the burden of issues that ours do now.
Improvement on this score depends on more complete agency review and decision at the construction permit stage.
That in turn depends on a change in industrial practice:
submittal of a more nearly complete design by the applicant at the construction pemit 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 pemit required modifications in the plant.
For the Commissic n A
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SAMUEL J. CillLX Secretary of the' Commission Dated at Washington, D.C.
this day of bS(LL)
, 1981.
(
UNITEDSTATESOFAkERICA f4UCLEAR REGULATORY CO..ilSS10N BEFORE Tile ATOMIC SAFETY AND LICENSING BOARD in the fiatter of
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CONSUMERS P0'.!ER C0!iPANY
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Docket No. 50-155
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(Dig Rock Point Plant)
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(Spent fuel Pool ik difiustion)
CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF RESPONSE TO INTERVENORS' REQUEST FOR A C0 fit [fiUANCE in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an aste-isk, through deposit in the fluclear Regulatory Commission's internal mail sy'. tem, this 5th day of June,1981.
- Herbert Grossman, Esq., Chairman Joseph Gallo, Esq.
Atomic Safety and Licensing Isham, Lincoln & Beale Board 1120 Conniecticut Ave, N.W., c325 U.S. Nuclear Regulatory Commission
!!ashington, D. C.
20C36 t!ashington, D. C.
20555 John A. Leithauser
- Dr. Oscar H. Paris Leithauser and Leithauser, P.C.
A:omic Safety and Licensing Opal Plaza, Suite 212 Loard 18301 Eight Mile Road U.S. Nuclear Regulatory Commission East Detroit, MI 40021
:-;hington, D. C.
20555 John O'Neill, II
- Mr. Frederick.' Shon Route 2, Box 44 Atomic Safety and Licensing Maple City, Michigan 49664 Coard U.S. Nuclear Regulator. c caission Chri sta-fiaria 1.tshington, D. C.
205u5 Route 2, Box 108c Charlevoix, MI 49720 l'ailip P. Steptoe, Esq.
Michael I. 11 iller, Esq.
Ms. JoAnne Bier Isham, Lincoln & Beale 204 Clinton One first National Plaza Charlevcix, MI 49720 Suite 4200 inicago, Illinois 60603 P00RORIGM
c Mr. Thomas Damann
- Atomic Safety and Licensing Route 3, Box 241 Ap! cal Board Panel U.S. Nuclear Regulatory Commission Charlevoix, MI 49720 Washington, D. C.
20555 Judd L. Bacon, Esq.
- Atomic Safety and Licensing Consumers Power Co.
212 West Michigan Avenue Board Panel l
U.S. Nuclear Regulatory Comnission Jackson, MI 49201 l
Washington, D. C.
20555 Mr. Gordon Howie
- Docketing and Service Section 411 Pine U.S. Nuclear Regulatory Commission Boyne Cit.
MI 49712 Washington, D. C.
20555 Mr. Jim Mills Route 2, Box 108 l
Herbert Semmel, Esq.
Charlevoix, MI 49720 Urban Law Institute of The Antioch School of Law 1624 Crescent Place, N.W.
l Washington, D. C.
20009 l
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Janice E. Moore Counsel for NRC Staff I