ML20009A730
| ML20009A730 | |
| Person / Time | |
|---|---|
| Site: | Byron  |
| Issue date: | 05/20/1981 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| Shared Package | |
| ML20009A729 | List: |
| References | |
| CLI-81-8, NUDOCS 8107140022 | |
| Download: ML20009A730 (10) | |
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U.S. NUCLEAR REGULATORY COMMISSION USN'a 3
MAY 2 01981
- STATEMENT OF POLICY ON CONDUCT.OF LICENSING PROCEEDINGS u::e cf Se Secretary 2)
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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 Commission 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 %e case with regard to staff reviews and hearings, where requested, for applications for nuclear power plant operating licenses.
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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 b-concluded before construction is completed.
This situation is e consequence of the Three Mile Island (TMI) accident, which required a reexam-ination of the entire regulatory structure.
After TMI, for over a year and a half, the CEmmission's attention and resources were focused on plants which were already 1 scensed to operate and on the preparation of an 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 permits 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 9107140022 010629 PDR ADOCK 05000454 A
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licenses.
If these proceedings are not concluded prior to the completion of construction, the co~st 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 faced 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' oici making.
However, the bot.rds will play an important role in resolving such difficulties.
IndiYidual 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 hearjngs, 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 discessed in this Statement are currently being employed 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 acti,ons that can be taken by individual boards.
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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 manage. ial skills of a presiding board which is dedicated to seeing that the process moves alcng 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 accordanc with applicable law and Cort.uission regulations.
While a board should endeavor to conduct the_ proceedjng in a manner that takes account of the special c.rcum-s stances faced by any participant, the fact that a party may have personal or
. other obligations or pos'sess fewer resources than others to devote to the proceeding does not relieve that party of its hearing obligations. When 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 appropride 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 hann 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 n
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4 safety or environmental concerns raised by the party, and all of the circum-stances.
Boards should attempt to tailor sanctions to mitigate the hann 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 regard.
When the NRC staff is responsible for the delay of a proceeding the Chief Administrative Judge, Atomic Safety and Licensing Board Panel, should inform 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
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III.
SPECIFIC GUIDANCE A.
Time i
The Comission expects licensing boards to set and adhere to reasonable schedules for proceedings.
The Boards are advised to satisfy themselves that
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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.
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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 thr' may be affected by the proceedings and who raise [s] substantially the same
5 questions...." Obviously, no consolidation should be ordered that wculd 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 other intervenors except upon a showing of prejudice to such other intervenors' interest or uoan a showing to the satisfaction of the board that the record would otherwise be incomplete.
C.
Neactiation The parties sh'ould be encodraged 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
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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 infonnation in the possession of the parties which is relevant to the subject matter involved in the proceeding so that issues may be narrowed, stipulated, or eliminatec and so that evidence to be presented at hearing can be stipu-lated or otherwise limited to that which is relevant.
Tne Commission is concerned that the number of interrogatories served in some cases may place
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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.
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The Comission believes that the benefits now obtained by the use of
-interrogatories couTd generally be obtained by using a smaller number of better focused interrogatories and is considering a proposed rule which would limit the number 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 alEo any 'dischery 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 involut.tary discovery.
Each individual board shall, detennine the method by which it supervises the discovery
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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 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-
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t'entions as possible by negotiation.
The conference is intended to:
(a)have
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y 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 Rulings on Preheering Matters The licensing boards should issue timely rulings on all matters.
In par-ticular, rulings should be issued on crucial or potentially dispositive issues Such rulings may at the earliest practicable jun'cture in the proceeding.
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 sign'ificant legal or policy question is presented on which Comission guidance is needed, a board should promptly refer or certify the matter to the Atomic Safety and Licensing Appeal Board or the Comission.
A board should 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.
Sumary Disposition i
In exercising its authority to regulate the course of a hearing, the boards should encourage the parties to invoke the sumary disposition procedure on w
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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 combination of these devices should be required at the discre-t tion of the board to expedite the orderly presentation by each party of its The Commission believes that cross-examination plans, which are to be case.
submitted to the board alone, would be of benefit in most proceedings..
Each board must decide which device or devices would be most fruitful in nanaging or expediting its. proceeding by limiting unr.ecessary direct oral testimony and cross-examination.
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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.
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Filina of proposed Findinas of Fact anc Conclusions of Law Parties should be expected to file proposed firdings of fact and conclu-sions of law on issues which they have raised.
The aoards, 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.
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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 beards 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 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 i
e 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.
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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 on 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 permit required modifications in the plant.
For the Commissidn areD Q
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SAMUEL J. ClfILY L
Secretary of *;he Commission Dated at Washington, D.C.
this day of M GLL/
, 1981.
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