ML20028F589
| ML20028F589 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 01/31/1983 |
| From: | Hoyt H Atomic Safety and Licensing Board Panel |
| To: | NEW HAMPSHIRE, STATE OF |
| References | |
| ISSUANCES-OL, NUDOCS 8302020253 | |
| Download: ML20028F589 (12) | |
Text
.
a
-6.
i l
000KETED l
UNITED STATES OF AMERICA 09ec l.
NUCLEAR REGULATORY COPNISSION, ATOMIC SAFETY AND LICENSING BOARD '83 FED -1 A11 :23 Before' Administrative Judges:
3,;. -
Helen F. Hoyt, Chairperson Emmeth A. Luebke Jerry Harbour SERVED FEB 11983
)
In the Matter.of
-)
Docket Nos. 50-443-0L
)
50-444-OL PUBLIC SERVICE COMPANY OF
)
NEW HAMPSHIRE, et al.
)
)
(Seabrook Station, Units 1
)
and 2)
J January 31, 1983
)
MEMORANDUM AND ORDER (Re the State of New Hampshire's Objection to the BoaFd's Ruling on Motions for Extension of Discovery)
MEMORANDUM On December 13, 1982, the State of New Hampshire filed a motion requesting a three month extension of the discovery period.1 S'imilar motions were filed by the New England Coalition Against Nuclear Pollution (NECNP), the Coastal Chamber of Consnerce for New Hampshire (CCCNH),.and the Seacoast Anti-Pollution League (SAPL).
I In this Board's Prehearing Conference Order of September 13, 1982, the Board allotted three months (until December 15, 1982) for discovery on admitted contentions.
S 8302o20253 03o131
- - o oooo3 o
$. On December 22, 1982, this Board conducted a conference telephone call _to discuss and rule on these motions.2 After listening to the arguments of the parties, the Board granted a three week extension of the discovery schedule.
New Hampshire filed an objection.to this ruling on January 7,1983. Although New Hampshire's filing contained no
~
request f6r relief, the Board treats the objection as a motion for reconsideration.
New Hampshire considers the Board's ruling to be prejudicial, violative of New Hampshire's due process and fair hearing rights, and
- based upon factors which are outside of the record of this proceeding-and upon which New Hampshire has no notice or opportunity to be heard.
The last reference is to the Staff's argument during the conference call that this Board should attempt to meet the dates set f6rth in the -
Bevill report.3 In its Statement of Policy on the Conduct of Licensing Proceedings, 13NRC452(1981)', the Commission stated that "[i]ndividual adjudicatory boards are encouraged to expedite the hearing process by using those management methods contained in the Commission's Rules of Practice in orde-to avoid regulatory delay.
Id_. at 452.
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, judg:nent, and managerial skills of a presiding 2
Memorandum and Order dtd January 17, 1982.
3 See Memorandum and Order dtd January 17, 1982, at 2-3.
. board which is dedicated to seeing that the process moves along at an expeditious pace, consistent with the demands of fairness.
Id.
In particular, the Commission endorsed the use of a smaller number of better focused interrogatories, Board supervision of discovery, and the use of time frames for discovery.
Id. at 455-456. Moreover, the Commission advised the Boards "to satisfy themselves that the 10 C.F.R.
Q 2.711 " good cause" standards for adjusting times fixed by the Board... has actually been met-before granting an extension of time."
The Board subscribes in full to this policy, and it has consti,tuted the cornerstone for the Board's hearing schedule and its ruling on the motions for extension of discovery.
In reaching its decision, this Board scrutinized the filings to determine if any of the movants had
'I shown " good cause." The Board considered New Hampshire's argument that delayed and incomplete responses to its first discovery requests prevented it from an effective second round of discovery.
The Board found some merit in this position, and granted the extension to compensate for-the time New Hampshire lost.
The Board found no justification, however, for extending discovery for three months.
In this respect, the Board noted that New Hampshire waited for slightly more than a month before filirg its first set of interrogatories. Moreover, with the extension the Board granted, the discovery period approached four months.
This Board also considered the arguments of the NRC Staff. The Board did not, however, base its decision on the Bevill Report; rather, the Board accepted the premise underlying the Staff's argument, that this Board should exercise judicious case management. As the Staff e
. aptly pointed out, there are still many stages to be completed' in this proceeding, including rulings and discovery on emergency planning contentions.
While the slippage in the fuel loading date permits some adjustment in the schedule, it does not require that a Board make an adjustment, Wisconsin Electric Power Co. (Kosh.konong Nuclear Plant, Units 1 & 2), CLI-75-2, 1 NRC 39 (.1975); nor is it reasonable to utilize almost one third of the leeway provided by the slippage in extending discovery on the first set of contentions.
As the movant, New Hampshire had the burden of proving that its motion should be granted, and this New Hampshire failed to do.
10 C.F.R. 6 2.732; Consolidated Edison Co. of N.Y., Inc. (Indian Point Station, Units 1, 2
& 3), CLI-77-2, 5 NRC 13, 14 (1977).
ORDER Based on the foregoing, it is this 31st day of January,1983 ORDERED 1.
That New Hampshire's objection to this Board's ruling on the Motion for Extension of Discovery is denied.
IT IS S0 ORDERED FOR THE ATOMIC SAFETY AND LICENSING BOARD Q
i Helen F. H?vt, Chairperso U ADMINISTRATrVE JUDGE
Enclosure:
Statement of Policy on the Conduct of Licensing Proceedings I
Cite as 13 NRC 452 (1981)
CU.413 UNITED STATES OF AMEfMCA NUCLEAR REGULATORY COMMISSION enaanannannassen Joseph M. Hendrie, Chewman h GMnsky Peter A. Bradised i
John F. Ahoorno in See MeIIsr of STATEIENT OF POUCY 000 COOGUCT OF UCENSIBIG PROCEEDIDIGS May 20,1981 De ca====ian issues a policy senta===t emy gedance to its licensing boards on the use of tools intandad to reduce the time for comp sang licensing proceedags while stir ensumg that haamp are fair i
andproduce fblirecords.
L BACKGitOUND De ca==i=== bas reviewed the docket of the Atomac Safety and Ucenseg Board Panel (ASLBP) and the current status of proceediap -
before its individual boards. In a senes of public meetags, the r-has===in=d at lengdr all major elements in its licanang procedure. It is clear that a n=nhar of daf5 cult problems face the agency as it endeavors to meet its r==pannihilities in the licensmg area. His is especially the case with regard to staff reviews and hearmgs, where requested, for applicances for nuclear power plant operatmg lican==
Hissancany, NRC operanng Hemn=ng reviews have been completed and the license issued by the time the nuclear plant is ready to operate. Now, for the Hrst time the hearmgs on a number of operanng hcense appi-may not be concluded before construenon is T-d This si'natv= is a consequence of the Dree Mile Island (TMI) accident, winch requaed a m=ans6m of the entire regulatory structure. After TMI, for over a year and a half, the Co=====an's attention and resources were focused ca plants winch were already licennad to operate and on the preparation of an 452
~
acnon pian which phd changes necessary for reactors as a result of the accadent Although staff review of ga-hcense apphcanons was delayed during this penod, utilities winch had received cometruenon pernnes ca=*innad to build the authonaed plants. The staffis now expedanng its review of the appbcanoes and an ------:+' -- ! naniber ofhennngs ars =eh-d=hd in the next 24 months. Many of these p+=" 7 concern applie=*=== for operanng l====== If these p-- - " 7 are not an=chwhd prior to the completion of construenon,.the cost of such delay could reach hiilia== of dallers.Ther-will seek to avoid or reduos such deisys whenever measures are available that do not conspraanse the ca=====ia='s fbada-l mental comunmnent to a fair and thorough heanng process.
Therefore, the ca==imia= is isanng this pobcy =*=*===* on the need i
for the halamaad and h conduct of all phases of the haanng process, I
The e-appreciaans the many difficaines faced by its boards in 8
hg these -*=*iam and compiez proceedags. By and large, the boards have perfonned very well. This dae====* is i=*=whd o deal with t
probiens not i : --ny of tim baanw own malang. However, the bosnis win play an important role in resolv=g such ddm=>i==
Individual adjmbcatory beenis m ---- - 74 to expakes the hearing process by usung those management =athada aheady ea=*=i==d in Part 2 of the ca==i==a='s Rules and Regal =*=== 1he ca===ia= wishes e I
- rha-though that, in expahang the hearings, the board should ensure that the beanags am fair, and produce a moord which leads to highquakty d=-==
that adequately protect tim public wth and difisty and the envuonment.
VirtuaDy all of the procedural devices h==d in this *=*====* are cunently bemg employed by sitting boards to mying degrees. The ra==i=ia='s r===ph==== of the use of such tools is i=**= dad o reduce the t
The sf alma = set forth below id time for - ;l *. hasammg p--- " 7 are not to be na==idared all inclusve, but rather are to be considered iBustrative of the acnous that can be taken by individual boards.
IL GDERAL GUIDANG The en==n.a.an's Rules of Preenos pnmde the board with =1=r==eial authonty to regulate heanng procedures. In the final analyus, the acaces, aa===*a=* with appi-hi ruk, winch may be taken to cand-et an,ma e haanng are limited prunarily by the good sense, judgment, and % sal diHs of a prendmg board which is dedicated to somng that the process moves along at an expeditious pace, an==i=*==* with the d====da of farness.
453 m
Fairness to an involved in NRC's adpdicatory procedures requrts that every panimpant fhlfill the obligations imposed by and in accordance with applicable law and c
' '--- While a board shoold endeavor to conduct the proceeding in a meaner that takes account of tne specal W faced by any y=-- ; -; the fact that a party may have personal or other obligations or poseoas fewer resources than others to devoes to the proceeding does not relieve that party of its haanag
-:";' -- When a perncipant fails to meet its E";' =+. a board should consider the i=Ta=*ia= of =^ against the ofendag party. A spacerma a( =- ama namor to avers is available to the boards e assist in the management of y.--
"7 For esempia, the bosnis could warm the oSending party that such oceduct win not be toisraasd in the funne, afhes to ocasider a Sling by tbs agending party, deny tbs right a W or present evidence, disanes one er more of the partys h impose appropnate sancaces on counsel for a party, or, in severs cases, dismiss the party fkoma tbs proconding. In pelocang a==nes=
boards should counder the relanve insportmece of the munet obhgance, its poesatial for bana to other pernes or the orderly conduct d the procuding, whether its occurrenos is an isolased inadent or a part of a ponern of behavior, the importance of the sar'ety or envira====*=1 concerns ramed by die party, and au c( the W Boards should attempt to taiicr sanctions to anngsas the harm canned by the faihus of a party to fhlfE its oblignacas and bang about improved fhaure <=T== At an early stage li in the proceeding, a board should make au pernes aware of the e
'spolicnesinthisregard.
When tbs NRC staffis.-,- % for du delay of a procenhng the Cheaf Adsnimstrative Judge, Atomme Safety and Licanemg Board Panel, should afons the Executzve Duector for Operanons. 'Ibs Execumve Director for th===h win appnes the c-in wntag of ageficant delays and provide an =pl==== 1his Aae====* win be served on au partes to a proceeding and the board.
IIL SPElCIFIC GUIDANG A. 1 hse expects licemeng boards to set and adhere to lhe ca=====a=
-=hl= schedules for proceedags. The Boards are advised to satufy themselves that the 10 CFR 2.711 " good cause" standard for adpenag tunes axed by the Board or procribed by Part 2 has acmany been met before sranting an extenman of time. Requests for an ~*--an d tia=
464 en
I should generaHy be in writing and should be reassved by the Board mail before the time spaciE=d expina.
B. c===ad and immersemese In accordance with 10 CFR 2.715a, intervenors should be ca==alidanad and a lead intervenor designated who has "pih=*==*=ny the sanne inasrest that may be affected by the p -- -- 't and who raise (s] enh====*iany the I
same quescons
" Otmoody, no===ahd=*ian should be ordered that would prepubce the rights of any intervenor.
However, -==t with that "" angle, lead inservenors should be ' 'y-=' to present evidence, to widace --=='iaa to subant bnsfs, and to propoos findings of fact, -h==ia== oflaw, and arguement.
Where such==akd== bas taken place, those funcoces should not be perfonned by other intervenors except upon a showing of propodios to such other intervenors' interest or upon a showing to the==h of the board that the record would otherwise be !=----(
C. Negedaden 1
h parties should be = - ; ' to negonano at aR times prior to and L
durmg the hearing to resolve==*==tiaan settle praa=d==1 disposes, and better danne issues. F:f= = should be momsored by the board through written reports, prehearmg conferences, and +=1=pha== confer-ences, but the boards should not haan=* duectly evolved in the negoe==*v=n= themselves.
D. Board Mamassment of Dissevery
[
The purpose of -R-._j is to expedias heanny by the disclosure of infor==tian in the possesman of the pernes which is relevant to tbs subject matter mvolved in the proceeding so that issues may be narrowed, supulatad, or ah====*=d and so that evulence to be pr===*=d at hearmg can be sepulated or otherwise linused to that winch is relevant. Tk Corn====ian is concernut that the number afinterrogatones served in some caers may plaos an undue burden on the pernes, FWj the NRC staff, and may, as a consequence, delay the start of the hearmg without reduceg the scope or the length of the hearing, h Com==== nan befseves that the benefits now obtamed by the use of interrogatones could generaHy be obtnsned by usmg a smaDer number of better focused interrogatones and is considering a proposed rule which would limit the number ofinterrogatones a party could file, absent a ruhng 455 Y
--.e
. ~. _, _ _ _ _ _. _...
~
by the Board that a greater nuaiber dinterrogatones isjuended. Pending a t'h decimon on the proposed rale, the Boards are r====d=1 hat t
they may lisait the amnber of interrogatones in accordance with the r=== dada ='s rules.
Accor&ngly, the boards should manage and supervios au discovery, including not only the intitial discovery directly foGowing =Ani==a= of aaaa==*=a== but also any discovery h herenner. 'Ibe c===d==a=
t agua endorses the policy of voluntary discovery, and encourages the boards, in aa==demaa= with the perns to menblish thne Samos for the d
aa=5 ana= of both volunta*y and invaluntary discovery. Each individual board shan desenmine the metod by winch it supervues the dmoovery proces. Possibie -=ehada % but are not linnad to, wntten repoem Sona the parties, tek;home conference caus, and status report conferences on the record. In virtuaRy an instances, individual boards should erhai=I=
an insmal conference with the pernes to set a general discovery =chaink-
~
, aner-*==an== bave been admined.
E h CenAmemme Licenoeg boards are encouraged to hold==**1====t conferences with the pernes. Such conferences are to serve the purpose of resolving as many cant==*iens as possible by negonation. "Ihe conference is int==d=1 to: (a) have the parties identify those anae=tia== no longer canadered valid or important by their sponsor as a result ofinfonnanon peersed through discovey, so that such con *==*ia== can be =H====*=d Gom the proceeding; and (b) to have the pernes negotians a resolunon, wherever possible, of an or part of any an=t==tia= sein held valid and important. The==*+8====t conference is not i=*== dad to repleos the prehsenng conferences provided by 10 CFR.1751aand1751 F.11eenly Es% em Prehearing Mantess The licanemg boards should imens tunely rulings on au matters. In y h, rulings should be issued on crucial or potentiaHy dispositive issues at the earheet pracacable juncture in the proceeding. Such ruhngs may alind==*= the need to adpdic=*= one or more s=h=Aary issues. Any ruling winch would affect the scope of an evidennary pr===tanan should be rendered well before the presentanon in quesnon. Ruliny on procedural matters to regulate the course of thehearmg s.nould also be rendered early.
If a if r =--t legal or policy quesmon is presented on winch Commis-sion gn=d==ca is needed, a board should yiQf refer or cernfy the matter to the Atonnc Safety and T M= Appeal Board or the Cn=====a= A
board shouki exercise its best judgment to try to==*ieT=t* crucal issues which may reqmre such F-- so that the reference or carencanian can be made and the response reouved without bokhng up the proceedag.
G. - W N=rman==
In exercismg its -~% to regulate the couros of a hearmg, the boards should encourage the parties to invoke the samnary dispanitian procedes on issues where there is no gemene issue of maasnal fact so that endentiary hearmg timeis not:
2 devoted to suchia=ama y
IL 'IMal Breeds, Pneed Teodmeny Osannes and wh Plums All or any ca== hie =*= cf these donces should be required at the discretaosrdthe board to expedite the aiderly pr====*='- by each party of its case. The c-behoves that W=aan plans, which are to be unhenistad to the board alona, would be of bene 81 in snoet proceedmgs. Each board smet decade which devios or devices would be most fruitnd in manapag or expedismg its proceeding by huutag
========ry direct cral 'a=*==any and cr--*ian L r=-unimy Rebeneal and Sarsehement Tessisseny For paracular, highly tachaient issues, boards are -=-- g ' during rebuttal and surrebuttal to put oppceng witnesses on the stand at the same time so that each witness will be shie to an====='
~
-r
, on an oppoemg witness' answer to a quesman. Appendix A to 10 C91. Part 2 exphcitly recognizes that a board may find it help 6d to take expert testunomy froma witnesses on a round-table basis after the teceipt in endence of prepared *=='unany.
J. IWmg of Proposed FW of Fra and r===4==I=== ef Imer Parnes should be expected to file proposed Sadings cf fact and conclumons oflaw on issues which they have reased. The boards, in their decronon, may refuse to rule on an issue in their initial decimon if the party rainng the issue has not fDed proposed h== of fact and conclumons of law.
457
E. Imanama n ad Iinsami"5 Proceedings vary greatly in the difHculty and F =;' -4 of issues to be decided, the amnbar of such issues, and the sine of the record compiled. These factors bear en the length of time it will take the boards to issueinitial decisions.The ch expects that decimens not only will comanus to be fair and thorough, but also that decisions will issue as soon as &him after the =h-i==a= d proposed findings of fact and anmel==ana cflaw.
Accordingly, the Ciner Ad=i=ierative Judge of the Atoasic Safety and Licemang Board Panel should schedule all bar:d assignments so that after the record has been completed individual Ash ministrative Judges are free to write innat de9 ions on those applications where construction has been completed. Issuance of such decanoes should take pr= cad = ace over other m
IV. CONCIUSION 1his p=an===e on adj= die =*== is in support of the ch's effort to aa=Ta operanng license proceedings, conducted in a thorough and.
fair - berare the end c(oonsancoon. As we have noemd, that process has not, in the past, aw*madad beyond cr==pi=han c( plant construenon.
Because of the comaiderabis time that the staff had to spend on developmg and carrymg out safety impsevements at operstag reactors durmg 1979-1900, in the walos o(the Three Mile Island ^* this luetoncal situanon has been disrupeed. To reestablish it on a reliable basis requires changes in the aguacy review and hearmg process, some of winch are the subpet of this.
en W As a final matter, the car=====aa observes that in ideal care====-
operanag licones proceedings should not bear the burden'ofissues that ours do now. T-- ; m on this score depends on more complete agency review and d cimon at the construenon permit stage. That in turn dap=ade on a change in industnal p.-A.
submittal of a more nearly +-- 't denga by the applicant at the construccon permit stags. With this change operaung license reviews and public pracaarhngs could be limited essen-er k
tially to whether the facihty in question was constructed in accordanos with the detailed denga approved for construenon and whether " "- - h cPassets aAer the date of the construccon permit resparaimndimmemna in the plant.
For the ce=n-immian SAMUEL J. CHILK Secretary of ths'c-this 20th day of May,1981.
~
m 6
9 O
e
__.-_-_-.______m____-_____..__m_
________.m_
_. _ _.___ _