ML20057B520
| ML20057B520 | |
| Person / Time | |
|---|---|
| Site: | Three Mile Island  |
| Issue date: | 08/12/1980 |
| From: | Bickwit L NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20049A457 | List:
|
| References | |
| FOIA-92-436 SECY-A-80-119, NUDOCS 9309220171 | |
| Download: ML20057B520 (10) | |
Text
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UmTED STATEE g NUCLEAM RE2ULATORY COMMISUCN-i
. ADJUDICATORY ITEM l
CONSENT CALEND AR ITEM Auaust 12, 1980_ SECY- A- 80-119 i
i For: The Commissioners From: Leonard Bickwit, Jr.
General Counsel
Subject:
CERTIFICAT!CN FRC'M LICENSING BOARD IN T.'41 RE-START PROCEEDING CONCERNING PROCEDURAL ASSISTANCE TO INTERVENORS
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Purrose:
Discussion: a ditensth d in the TMI re-start proceeding certified the issue of whether the Commission would authorize it to provide '
V procedural assistance N free transcripts, in thetoproceecingh intervenors particular.
The Board 's certification ( Attachment B) notes that th e recently-adopted procedural assistance rules, 10 C.F.R.~55 2.708(d),
2.712(f) and 2.750(c), see 45 Fed. Reg. 49535 (July 25, 1980) apply only to an "adjudicatery proceeding on an application for a license or an amendment thereto, " and that the re-start croceeding does not f all into this category.
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L CONTACT:
Harvey J. Shulman, OGC 634-3288 j.;:c r--m., , r.,
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2 Recommendation: _ _ _ ___ _ __
& Leonard Bicxw ' t , Jr.
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General Counsel Attachments:
As stated Comissioners' coments or consent should be provided directly to the Office of the Secreta
- by c,0.b. Uednesday, August 27, 1980.
Cormission Staff Office coments, if any, should be submitted to the Cemissioners NLT August 20, 1980, with an infomation copy to the Office of the Secretary. If the paper is of such a nature that it reouires additional tine for analytical review and coment, the Comissioners and the Secretariat should be apprised of when coments may be expected.
This paper is tentatively scheduled for affirmation at an Open Meeting during the Week of .;
September 1, 1980. Please refer to the appropriate Weekly Conrission Schedule, when l published, for a specific date and time.
DISTRIBUTION ,
Commissioners Commission Staff Offices Secretariat
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NUCLEAR REGULATORY COMMISSION USNRC 9-AUG 81980 > !
ATOMIC SAFETY AND LICENSING BOARD j'3N ,
Ivan W. Smith, Chairman 'd 4 Dr. Walter H. Jordan 4 Dr. Linda W. Little /
Cd In the Matter of )
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METROPOLITAN EDISON COMPANY ) Docket No. 50-289 (Three Mile Island Nuclear ) (Restart) 4 Station, Unit No. 1) )
CERTIFICATION TO THE COMMISSION (August 8, 1980)
The immediately effective rule, Procedural Assistance in Adjudicatory Licensing Proceedings , 45 FR 49535, July 25,1980, authorizes. presiding officers to arrange for free transcripts upon the request by parties other than an applicant "... in any adjudicatory proceeding on an application for a license or an amendment thereto...." 45 FR 49537. One intervening party in 1/ )
this proceeding ~ has made a request under the rule and the board has learned informally that other parties intend also to request I transcripts.
In anticipation of such requests, the board consulted with I
the Docketing and Service Section, Office of the Secretary and- i with Commission attorneys involved in drafting the Procedural 1/
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Sholly Motion to Board for Routine Free Distribution of Hearing Transcripts Pursuant to Notice, 45 FR 49535-49537, dated July- 30, 1980.
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. Assistance Rule, who pointed out that the Three Mile Island Unit No s 1 restart proceeding is probably noc covered by the rule because it is not a proceeding on an application for a license or license snendment. We agree with this interpretation and believe that we are without authority to grant requests for
. free transcripts in this proceeding.
The purpose of this certification is to bring to the atten-tion of the Commission the fa'ct that the terms of the Procedural Assistance Rule exclude- this proceeding, and to request that the provisions of the rule be extended to apply to this proceeding.
Neither the licensee nor the NRC staff has yet responded to the intervenor's request for free transcripts but neither objects to this certification. By this certification we request only the authority to consider requests for free transcripts, we do not certify the requests themselves.
In the board's Certification to the Commission on Psychologi-cal Distress Issues, February 22, 1980, LBP-80-8, 11 NRC 297, we reported to the Commission in connection with the Commission's stated interest in considering intervenor funding in this pro-ceeding, that we had no recommendation to make on that issue. We stated that our views on intervenor assistance are "... individual and philosophical, and not likely to be helpful to the Commission."
11 NRC at 309. This is still the case. In making this request,
_3 we are seeking only to be permitted to employ the means provided in the Procedural Assistance Rule to assist the board in pro-ducing a complete and reliable evidentiary record without undue delay.
The board requests the Commission to consider the following points:
- 1. Traditionally board members (and sometimes the staff)1end transcripts to intervenors during the hearings to avoid delays caused by confusion over earlier events in the hearing and to improve the quality of the record. This results in some inconvenience to the board whose efficiency is impaired i by the need to share transcripts. In this proceeding there are many parties without resources to purchase transcripts and not j l
enough transcripts to lend. ;
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- 2. In its August 9, 1979 Order and Notice of Hearing, CLI-79-8, 10 NRC 141, the Commission directed the board to con- i duct the proceeding expeditiously and to avoid delay caused by
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unneeded crosi-examEnation. Id. at 147. The board has issued specific instructions to intervenors to limit cross-examination to that necessary for a full and true disclosure of the facts, and we have outlined strict procedures intended to accomplish i 2/
that result. The intervenors themselves have, on at least seven l l
2/ Memorandum and Order on Prehearing Conference of May 13, 1980, !
dated May'22, 1980, pp. 9-11, and Memorandum and order, dated !
May 5, 1980, pp. 5-7. l l
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M occasions, met at their own expense to arrive at consolidation agreements , to designate lead intervenors , and to arrange for 3/
the efficient use of cross-examination.-
Transcripts are fundanental tools used in effective cross-examination. They may be essential to efficient cross-examina-tion. Transcripts can be effectively used by intervenors to
\ assist each other to be efficient where they have consolidated contentions or have designated lead Lncervenors on particular issues. If they do not have transcripts, the board may be less able to limit cross-examination to efficient and productive non-repetitive questioning.
- 3. The quality of cross-examination, and for that matter, direct examination, is Leproved by informed examiners.
4 The board has already instructed the parties that it intends to apply the provisions of 10 CFR 2.754(a) to this proceeding, i.e., the parties will be required to file proposed findings of fact, conclusions of law and proposed form of order or decision; that any failure to do so may be construed by the board to be a def ault according to Section 2.754(b) . Tr. 1973-78.
Access to transcripts is very important to the prompt filing of accurate proposed findings. If intervenors must share the few transcript copies presently made available in public document roocm , either proposed findings will be delayed, or if not delayed, they will be reduced in accuracy -- probably both.
3/ Sholly Report to the Board on Consolidation Proposal, dated Julv 29, 1980.
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- 5. When we speak of transcripts being useful in developing a complete and reliable record without undue delay, we are not referring to contentions relating ':o the personal interests of individual intervenors in the p_-oceeding. Many of the contentions are parallel to mandatory issues required to be considered in the notice of hearing and all are within the scope of the hearing. We cannot identify any contentions relating solely to an intervenor's private interest, all are ,
related to a broader public interest. The board believes that it will be assisted in arriving at a more reliable initial decision in this proceeding by intervenors equipped with funda-mental litigation tools, particularly transcripts.
- 6. Even from the point of view of those interested in an early restart of TMI-1, we cannot identify any disadvantage to providing transcripts to intervenors in this proceeding. The
, board has the authority to insist upon an efficient hearing and we have used this authority. We will not permit access to tran-scripts to become an implement 'for delay. To the contrary, we will regard transcripts as a reason for not accepting some tradi-tional delays. With a shorter hearing and record, with greater efficiency in preparing findings and the initial decision, much if not all of the cost of providing transcripts will be recovered.
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6-CONCLUSION The board requests the Commission to extend the provisions of the Procedural Assistance Rule to this proceeding for the purpose of assisting the board in developing a complete and reliable record without undue delay.
THE ATOMIC SAFETY AND LICENSING BOARD
'/t, A,'-r ty,'/. ,A'.:'i' -.! rg';
Ivan W. Smith, Chairman Bethesda, Maryland August 8, 1980
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