ML20058F799
| ML20058F799 | |
| Person / Time | |
|---|---|
| Issue date: | 07/25/1990 |
| From: | Curtiss J NRC COMMISSION (OCM) |
| To: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| References | |
| NUDOCS 9011090139 | |
| Download: ML20058F799 (5) | |
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' AFFIRMATION V 0 T. E.........
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RESPONSE SNEEI
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SAMUEL J. CHILK, SECRETARY OF THE C0bNISSION FROM:
COM4ISSIONER CURTISS
SUBJECT:
SECY-90-255 - FINAL RULE ON INFORMAL PROCEDURES FOR REACTOR OPERATOR AND SENIOR REACTOR OPERATOR LICENSING ADJUDICATIONS E
APPROVED
.X' DISAPPROVED ABSTAIN fNOT PARTICIPATING REQUEST DISCUSSION L'
COW 4ENTS:
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. RELEASE'. VOTE '
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ENTERED ONL"AS" YES l NO 7842 88AslTS8C CORRESPONDENCE PDC
afforded in the event that an interested person, including an applicant for a reactor operator license or a licensee, requests a hearing with regard to agency action concerning a reactor operator license.
Previously, the Commission has declared in individual orders responding to operator hearing requests that an applicant for an operator license whose application is denied is entitled only to an informal hearing in accordance with procedures like those now embodied in Subpart L.
L.g., David W. Held (Senior Operator License for Beaver Valley Nuclear Power Station, Unit 1), Docket No. 55-60402 (Comm. Aug. 7 1987).
In the wake of NRC's adoption of Subpart L (54 FR 8269),.the Commission decided that the Commissiokrules should reflect the p:.
e practice followed in the individual orders.
II. Comments and Commission Resconses The Commission received seven comments representing a broad spectrum of-interested persons.
Commenters included three utilities, a law firm representing'five utilities, the Nuclear Management and Resources Council
- (NUMARC), a licensed senior reactor operator and a law firm representing. the E
.,. Professional Reactor Operator Society (PROS). All. comments are available for
-inspectioniand copying in the agency's Public Document Roorn, 2120 LStreet,N.W.[LowerLevel), Washington,D.C.
Oneistility,,and,a;1aw;, fire: representing
- five--utilities' expressed general c
support:for.: specification <.ofhthee. informal. adjudicatory procedures that will apply:in: reactor 2 perator,1.icense> proceedings; but deemed it necessary or, 0
a desirableithetithe amendments; explicitly; grant applicants-and licensees -
access)to' formals djudicationeuponia-showing of good cause or special a
' circumstances.. NUMSC -affinnedtthe rationale for the proposed amendments, but nonetheless deemed desirable the. application of Subpart G toahearings 3
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th'at the presiding officer make the'necessary recommendation to the
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Commission.:
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- b. Standino for Intervention.
Oneutilityurgedthespecificationofa/
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= =ad W strict test of j.d ;t:1 anding for intervention in operator
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license proceedings.
Specifically, the commenter suggested that b,;#
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+m+y be required to demonstrate that it will present evidence that would N
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materially alter the outcome of the NRC hearing decision. NUMARC also I
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recommended a clarification that the threshold of standing for intervention in
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reactor operator licensing adjudications, under either Subpart L or Subpart G, M
will be very high.- he pr:M e citF r:;., my suu, ; ir:~+"+ 4^
ei e --
i.,;;;rt:1 ;ltei dier ;f th ed;:r: ef th e. usceu ms is tnat
-vuld vi;;; :n i6 y
rirr:'y Hf brir, ;r, tM petitierr fer %ter" -tir.
The Commission S<
' shares the concern that-intervention not.be indiscriminate, such as for the l
purpose of. creating unnecessary delay.
However, the Commission believes that.
the existing procedures and judicial standards for standing will provide fair i
and sufficient' scrutiny of petitions for intervention, jag 10 CFR 2.1205.
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Under Subpart L, for example, the petitioner for intervention must show how its interests will be-affected by the proceeding and identify the concerns of e
1 the petitioner.
10 CFR 2.1205(d),-(j).
And,_the presiding officer must L
determine,that the specified areas of concern are germane to the subject 1
matter of the proceeding, and that the petition is timely nd mefts the 97=1Q
. judicial standards for standing.. 10CFR2.1205(g),-(j)(3).pnterventionis, in~ fact, likely to be difficult under the present standards inasmuch as such
- proceedings will generally focus on issues peculiar to the applicant's or operator's. qualifications.for the position.
In: promulgating Subpart L, the Commission indicated that the " distance-15
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standard" established by NRC case law for standing in nucle r reactor j
licensing proceedings, whereby persons residing withi ifty miles of a i
facility generally are considered to have standing, was not applicable to j
material licensing proceedings. [54 FR at 8272). The Comission will take this opportunity to clarify that the " distance standard" is not automatically appl.icable to reactor operator license proceedings.
The standing of a
, petitioner in each case.should be determined upon the basis of the circumstances of that case as they relate.to the factors set forth in 5
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1 2.1205(g).
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Aeneal of the Denial of a Reauest fry Hearina. Section 2.1205(n) of 1
Subpart:L currently permits appeal of an order denying a request for a hearing (or petition for intervention) in its entirety within ten days of.the service of: t'he order.. Th;t.ppvai wii end, lic: "ith th. Ate;;;.fet>.ad ik.u.ia; "ppnl Oe. J.
10 un c.4c55. The law firm representing five utilities requested that the Comission amend existing 9 2.1205(n) so as to permit an 1
immediate appeal of a presiding officer's denial of a request for a formal hearing. As discussed below, this-commenter also recommended that the n
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-l A,gy L h Commission give the presiding officer the power to grant a request for : t M r' 4
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- ;ndlng The Coccission declines to adopt this recomendation for several reasons.
First, the existing procedure fcr en immediate appeal is premised upon the denial' of A01 hearing' as 'a final bar to adjudication.
This is far
.)
A, b /c W4 different circumstance for appeal than. a mere denial og procedures:for a hearing that is in fact granted.
Indeed, completion of the ~ informal i
adjudication may resolve the requestor's concerns.
Se:: d, f;r ru n;; :t;t;d
- ki r:, ' + % Cr-N 4 a-An :hi:: t:,et.in the rM M Hty t: ;rd:r prn:fr a
' t :ddit h; te then in : Apert L f;r pre... ding other,;in ge,e n J L, 16-
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d~ Wrn m: J ~ '.::Er": Othr pr;;;;dir.i, ;bdd b car.t:t;d Finally, the 7
Comission sees no reason to carve out for reactoy op rator hearing questions i
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'y a special exception to its existing procedures appeal a.'d review.
g 3.
Existing i 2.1209--Presiding Officer's Powers The law firm representing five utilities recommended that the Comission amend existing i 2.1209(k) so as to authorize the pres ding officer in a Part 55 hearing to grant a requestj}s tas 9)%W AAf :'
f:r -": edjA.ti Cu ently, the 7
presiding officer's power under i 2.1209(k) is limited to a recommendation that the Commission authorize the use of other procedures for a particular
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proceeding.. The recommended change might slightly expedite decisionmaking on 4
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a request for other adjudication. However, the Comission. believes that the -
small potential benefits of the change are outweighed by the benefits of. its retention of the ultimate determination.
For instance, a decision by-the 9
'Comission serves the : interests of uniformity of decisionmaking, full L[
consideration of the potential commitment of. costs and resources, and administrative finality.
This comenter also recommended amendment of 6 2.1209 so as to authorize
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the presiding' officer to entertain a specific requ'est for a formal J
adj:idication or for certain formal procedures in the course of the hearing if the.need for such procedures becomes apparent.
A preuding officer, however,.
j already has authority to entertain such requests during the course of an i
b I1hformalhearing.
Nothing in' Subpart L prohibits any party from presenting
'such a motion,to the presiding = officer during an informal proceeding. Sgt 10 CFR-2. 1237. Moreover, the Commission need not and probably could not specify l
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