ML20037D010
| ML20037D010 | |
| Person / Time | |
|---|---|
| Issue date: | 04/27/1981 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | Ahearne J, Bradford P, Hendrie J NRC COMMISSION (OCM) |
| Shared Package | |
| ML19353A596 | List: |
| References | |
| REF-10CFR9.7 NUDOCS 8105060576 | |
| Download: ML20037D010 (12) | |
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UNITED STATES NUCLEAR REGULATORY COMMISSION
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April 27, 1981 L3 OFFICE OF THE stenETAny g
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MEMORANDUM F"R:
Chairman Hendrie h
Comissioner Bradford
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Comissioner Ahearne g
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Samuel J. Chilk, Secreta dl -
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SUBJECT:
STATEMENT OF POLICY ON CONDbCT OF LICENSING PROCEEDINGS -
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SECY has been asked to circulate the attached mark-up copy of the k
Policy Statement indicating Comissioner Gilinsky's views.
This paper 5
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is scheduled for discussion at the Comission meeting cn revised licensing j
I procedures on Tuesday, April 28.
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Conrnissioner Gilinsky Comission Staff Offices l
Exec Dir for Operations i
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5 COMMISSIONER GILINSKY'S CHANGES - 4/27/81
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U.S. NUCLEAR REGULATORY COMMISSION STATEMENT OF POLICY ON CONDUCT OF LICENSING PROCEEDINGS I.
BACKGROUND
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The Commission has reviewed the docket of the Atomi'c Safety and Licensing i
j Board Panel (ASLBP) and the current status of proceedings before its individtial boards.
In a series of public meetings, the Commission his examined at length all of the major elements in its licensing procedure.
It is clear that there are a number of difficult problems facing the agency as it endeavors to meet its responsibil'ities in the: licensing area.
This is especially the case with regard to staff reviews and hearings, where requested, for applications for nuclear power plant operating licenses.
Historically, NRC operating licensing reviews have been completed and the license is' sued by the time the nuclear plant is ready to operate.
- Now, for the first time these hearings on a number of power operating license applications may not be completed before construction is completed.
This situation is a direct consequence of the Three Mile Island (TMI) accident, which required a reexamination of the entire regulatory structure.
After TMI, for a period of over a year and a half, the Commission's attention and resources were focused on plants which were already licensed to operate and caw m y on the preparation of an action plan which specified " "'
f5 mats fcr operating reactorsa A % ic h ^"M-Although staff review of pending license applications was delayed during this period, utilities which had received construction permits continued to build the authori::ed plants.
The staff is now expediting its review of the 6Mp applications and an unprecedented number of kard pr.cced Sgs are scheduled
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At least half-of these proceedings cent.ern m
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applications for operating licenses pursuert te t% 1.t--ic :=rgy tet, :e<
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ese proceedings hnu da whuGai La ceiay operauun vT G ca ws n
w J guJ i fied-pow, pion b. 'fhe cost of sm& delayf could reach billfor.s of
% w-.n so. sus. w.i _w J s'Jyo dollars.W 4-O-L-w U+1 whenever measures are available that do not 7
compromise the fundamental k'om=issionh:c:mitter}t to a fair and thorough chYtb ate cea'entiens 'r= htcrected par **en 1 /
The Commission therefore 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-h ducting thece contentiera ar[ complex proceedings.
By and large, the. Boards t
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j have performed very well.
This document is intended to deal witn problems l
not primarily of the Bcards' own making, though the Boards will play an l
important role in their resolution'.
Individual adjudicatory boards are encouraged to expedite the hearing process by using those management methods which presently exist in Part 2 of the Commission's Rules and Regulations.
The Commission wishes to e:phasize though thagin expediting the hearings,the Board should ensure that the hearings are fair, and produce a record which leads to high cuality decisions that adequately protect the i
environment and the public health and safety.
Virtually all of the procedural devices discussed in this Statement.
are currently being employed by sitting boards to varying degrees.
The Commission's reemphasis of the use of such tools in intended to reduce the time for completing licensing proceedings.
The guidelines set forth below are not to be considered inclusive, but rather are to be considered illus-t trative of the actions that can be taken by individual Boards, i
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II.
GENERAL EUIDANCE The Commission's Rules of Practice provide the Boardswith substantial A
authority to regulate hearing procedures.
In the final aralysis, the actions, consistent with applicable rules, which may be taken-to conduct an efficient 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 $ obligatiens imposed ir. =crd c: e'-applicable ' -
4 law and Commission regulations.
While a board should endeavor to conduct the proceeding in a manner that takes account of the special circumstances 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 j
relieve it of its hearing obligations. When a participant fails to meet 50
't 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. The Boards, for example, could warn the offending party that such conduct will not be tolerated in the future, refuse to consider a filing by the offe6 ding.
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 m_lative importance of the un=et obligation, its potential for har=
4 to other parties or the orderly conduct of the proceeding, whether its oc ur-rence is an isolated incident or a party of a patternr of behavior, the importance of the safety or environmental concerns' raised by the party, and all of the circumstances.
Boa-ds should attempt to tailor sanctions to miti-gate 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 tais regard.
When the NRC staff is responsible for the delay of a proceeding should inform the Executive Director for Operations.
The Executive Directer for Operations will apprise the Commission in writing of significant delays and provide an explanation.
This document will be served on all parties to a proceeding arid the board.
III.
SPECIFIC GUIDANCE A.
Time The fundam/ ental ing edient in man /ging licen ng proceedings is se and adhering to reason le time limit for recui ed actions.
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i Reque ts for extension of tim should ge erally be in iting an should be
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III.
SPECIFIC GUIDANCE
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A.
Time The Commission expects licensing boards to set and adhere to reasonable schedules for proceedings.
Reque'sts fo'r' 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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5 B.
Consolidated Interveners 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 questions Obviously, no consolidation should be ordered that would prejudice the
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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 consolidatf6n has taken place, those functions should not be performed by other intervenors except upon a showing of prejudice to siuch other intervenors' interest or upon a showing to the satisfaction of the Board that the record would otherwise be incomplete.
C.
Necotiation The parties should be ence aged 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 Manacement of Discoverv 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 eliminated andfevidence to be presented at hearing can be stipulated or s a claX P00ROR8NAL
6 otherwise limited to that which is relevant.
The Commission is concerned that abuse of discovery not delay hearings.
.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.
1he Commission ay s Mindorses the policy of voluntary discovery, and encourages the Boards, in A
consultation with the parties, to establish time frames for the completion of both voluntary and involuntary discovery.
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- Each individual Board shall detemine the method by~ which it supervise.s -
the discovery process.
Possible methods include, but are not-limited to,
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written reports from the parties, telephone conference calls, and status -re; rt %
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-tentions as possible by negotiation.
The conference is intended to:
(a)have the parties identify those contentions no longer considered valid or-important by their sponsor as a result of infomation generated through dis-covery 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 contention still held valid and important.
The settlement con-ference is not intended to replace the prehearing conferences provided by 10 CFR 2.751a and 2.752.
F.
Timely Ralines on Prehearina Matters The Licensing Boards should issue timely rulings on all matters.
In particular, 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 I
issues.
Any ruling which would affect the scope of an evidentiary
- presentation should be rendered well before the presentation in question.
In cth:r = rd:, a beard :h:uld iian.i.d.y..;.u32 un ques.ivna e' feet -
aM is, i.e du.'ine the 1::ucs in c:ntrove.3y in
.3 specific a manner a.
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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 '- --'-
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- a cpublic intere3; e. expens., a board should promptly refer or certify the f matter to the Atomic Safety and Licensing Appeal Board or the Commission.
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.
Summary Disoosition In exercis'ing its authority to regulate the course of a hearing, l
the Boards should encourage the parties to invoke the su==ary disposition l
procedure on issues where there is no genuine issue of material fact so that evidentiary hearing time is not unne:essarily devoted to such issues.
H.
Trial Briefs, Prefiled Testimony Outlines and Cross-Examinacion.31ans All or any c:=bination of these devi:es should be required at the discretion 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 proceedings.
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.
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Combining Rebuttal and Surrebuttal Testimony n_,
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 roundtable basis after the receipt in evidence of prepared testimony.
G J.
Sua Soonte Raising of Issues by Boards
[To be prepared following Commission discussion.]
(( Filine of Prooosed Findinos of Fact and Conclusions of Law' Parties should be expected to file proposed findings of fact and conclusions 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.
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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 si:e 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 1
i decisions will is:.te as soon as practicable after the submission of l
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proposed findings of fact and conclusions of law.
- Accordingly, the Chief Admininstrative Judge of the-Atomic Safety and I.icensing Board Panel should schedule all Board assignments so that after the record has been completed individual Board n:.'mbers are free to write ' Initial Decisions on those applications where construction has been completed.
Issuance of such decisions should take precedence over other responsibilities.
For the Co=ission
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SAMUEL J. CHILK Secretary of the Commission Dated at 'n'ashington, D.C.
this day of
, 1981.
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