ML20058G685
| ML20058G685 | |
| Person / Time | |
|---|---|
| Issue date: | 08/15/1990 |
| From: | Chilk S NRC COMMISSION (OCM) |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML19330F723 | List: |
| References | |
| FRN-54FR17961, FRN-55FR36801, REF-10CFR9.7, RULE-PR-2 AD17-2-02, AD17-2-2, NUDOCS 9011130348 | |
| Download: ML20058G685 (33) | |
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August 15, 1990 FOR AFFIRMATION THURSDAY, AUGUST 16, 1990
SUBJECT:
SECY-90-2SS - FINAL RULE ON INFORMAL PROCEDURES FOR REACTOR OPERATOR AND SENIOR REACTOR OPERATOR
- LICENSING ADJUDICATIONS The Commission'is being asked to approve'a fihal rule which j
provides procedures for the use of informal adjudicatory j
procedures in nonenforcement operator licensing: proceedings.
The rule-also includes express permission for an applicant to include within the. request for a hearing a request that the presiding i
officerirecommend'to the-Commission that procedures other than i
.those specified in Subpart L be used in the proceeding.
]
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-All Commissioners have approved the final rule as attached.
i i
^
r' Sa$ue]fJ. Chilk l
Secret &y f the-Commission j
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-Ahtachment*
As stated I
cc:
Chairman Carr Commissioner Rogers j
Comm'issioner Curtiss h
Commissioner Remick OGC i
-EDO l
4 9011130343 901107 i
PDR PR i
2 SSFR36801 PDR 7
9, cm a c ' a s
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Qf b
t NUCLEAR REGU' ATORY COMMISSION 10 CFR Part 2 RIN 3150-AD17 Informal Hearing Procedures for Nuclear' Reactor Operator Licensing Adjudications AGENCY:
Nuclear Regulatory Commission
' ACTION:
Final rule.
i
SUMMARY
- The Nuclear Regulatory Commission (NRC) is amending its regulations to' provide rules of procedure for the conduct of informal adjudicatory 1
hearings in nuclear' reactor operator licensing proceedings.
The Atomic Energy Act of 1954 requires that the NRC, in any proceeding for the granting, suspending, revoking or amending of any license afford an' interested person, upon. request,Ja "he'aring." This final rule would include reactor operator i
licensing:pruceedings under the informal hearing procedures.already E'
' established =for materials licensing proceedings.
EFFECTIVE DATE:
(Insert the date of publication in the Federal Register) l
- FOR FURTHER INFORMATION CONTACT: Roger Davis,. Senior. Attor' ey, Office of the n
General Counsel, U.S.' Nuclear Regulatory Commission, Washington, DC 20555,
- Telephone (301) 492-1600, SUPPLEMENTARY INFORMATION:
- 1..B3ckaround
'On Apr.il 26, 1989 (54 FR 17961-17962), the Nuclear Regulatory Commission published ~.in ~the Federal Register proposed amendments to its Rules of Practice at 10 CFR Part 2.
The amendments make the informal adjudicatory procedures set forth in 10 CFR Part 2, Subpart L, applicable in proceedings i
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for.the grant, renewal or licensee-initiated amendment of a reactor operator or senior reactor operator license.
However, the amendments provide for the
' use of the formal' adjudicatory procedures set forth in 10 C.F.R. Part 2, Subpart'G. in.any reactor operator licensing proceeding that is initiated by a notice of hearing under 6 2.104, a notice of proposed action under
$ 2.105, or a. request for hearing under Subpart B-of 10 CFR Part 2 on an order to show cause, an order for modification of license or a civil penalty.
On. July:3, 1989, the NRC extended the date for submission of comments on the proposed amendments to August 10, 1989 [54 FR 28822).
Section 189a of the Atomic Energy Act of 1954 (AEA)-(42 U.S.C. 2239(a))
provides.that in any proceeding for the granting, suspending, revoking or 1 mending of any, license, the NRC.shall grant a hearing upon the request of any person whose interest >may be affected by the proceeding.
Among the licenses: issued by the NRC are those for operators and senior operators of.
nuclea_r:rea.ctors (AEA Section 107,-42 U.S.C. 2137; 10 CFR Part 55).
The Commission's rules of_ practice generally provide for two types of
- hearing procedures for licensing proceedings -- formal and informal.
Under 101CFR Part':2,~Subpart G, those requesting.a. hearing with respect to a 4
m-reactorslicensing action or any agency enforcement activity affecting a
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- license are-generally provided a formal,. trial-type hearing conducted in L
accordance with the provisions.of the Administrative Procedure Act, 5 U.S.C.
[
c554-5571and'10 CFR Part 2,1Subpart G.
On the other hand, a request for'a hearir.g regarding an NRC materials licensing action generally entitles an.
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interested person to.an informal, legislative-type hearing in accordance with s
10-CFR Part.2, Subpart L.
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'.NRC regulations currently do not'specify %e. type of hearing to be i
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- afforded in the event that an interested pefson, 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
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-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.
Lg., 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 Commissio rules should reflect the
,A practice sfollowed in the individual orders.
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Comments and Commission Resoonses-The Commission receiveduseven comments representing a broad spectrum of-interested persons.
Commenters included three utilities, a law firm a
representing five' utilities, the Nuclear Management and Resourn Council
[NUMARC], :a} licensed: senior reactor operator and a law firm representim the:
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Professional: Reactor Operator Society-[ PROS).
All comments are available for inspection'andLeopying;in the agency's Public Document Room,L2120
! L Street,s N.W.1[LowerLevel), Washington,D.C.
l-One.utili.ty and'a law firm representing five utilities expressed general'
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support for specification of the informal adjudicatory procedures that will L
apply in; reactor _' operator license proceedings, but deemed it-necessary or s
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~ desirable that the amendments explicitly grant applicants and 1icensees access to. formal' adjudication upon a showing of good cause or special m
circumstances.
NUMARC affirmed the rationale for the proposed amendments, f
- but nonetheless deemed desirable the application of.Subpart G to hearings 3
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V-7, concerning.the-denial of an initial or renewal application.
These commenters
- also. suggested certain changes =in provisions of the existing, informal
-adjucicatory rules under Subpart L insofar as they'would apply to reactor operator licensing proceedings.
One utility found the NRC's Statement of Consideration inadequate and urged renotice either justifying the amendments more ' clearly 'or proposing adoption of formal procedures for all operator license proceedings.
Two other commentors, a senior reactor operator and the 8
law. firm representing PROS, opposed the amendments'as contrary to the due process rights of licensed reactor operators. One' utility wholly endorsed the proposed amendments.
After cnnsidering'all-comments, the Commission is persuaded that with
-one exception the amendments should issue as prcposed.
In response to the comments,.the Commission has explicitly extended to the initial or renewal applicant who is issued a notice ~of_ proposed denial or a notice of denial permission to incl ~ude.in his or her request for hearing a request that the presiding officer recommend authorization of other procedures for the proceeding, Such a request must include a statement of the special factual circumstances.or-issues supporting other. hearing. procedures.
s At the outset, it.is.useful to note some of the highlights of the Comm'ssion's' informal' adjudicatory procedures. 'Within thirty days after a i
presiding officer's; entry of an order granting a request for a hearing, NRC staff flies in-the docket a hearing file consisting of the-application,'and any relevant NRC report and correspondence between the applicant and'the NRC.
10-CFR 2.1231.
Thereafter, the parties are afforded an opportunity to submit-3 written presentations of their arguments. and supporting written evidence.
10 m
CFR 2.1233(a).- These presentations are to be made under oath or affirmation.
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?.i l is In. addition, the presiding officer is empowered to submit written
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questions to the parties to be answered in writing, id., and to issue
-subpoenas.for attendance and testimony at hearings and for production of documents'or things.
Upon determining that it is necessary to create an adequate record for decision, the presiding officer may also allow or require oral presentations, including. testimony by witnesses, under oath and stenographically. recorded.
10 CFR 2.1235(a)-(b).
The p_ residing officer conducts examination of the witnesses and may allow the parties'to propose. questions for posing to the witnesses. J.d.
Finally, the l
presiding officer may recommend to' the Commission that procedures other than
'the specified informal procedures be used in the proceeding.
10 CFR E.1209(k)..
A.
. General Commann
' 1.
Formal Hearings Are Required-for Licensees If Requested q
Two commenters. opposed the proposed amendments o.n the ground that s
licensed operators are entitled to' trial type hearings under the Constitution.
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'The licensed senior reactor operator viewed the proposed amendments as both permitting the. revocation of a license for-any-reason or-whim and eliminating the r.ight to a formal hearing. The commenter apparently overlooked the specific: standards in 10 CFR Part 55 under which licenses 'are issued, renewed, T
-modified,, suspended or revoked.
The commenter ah oes'not-seem to lappr
- ateLthat:
- 1) the proposed amendments provide, for formal adjudication j
in. proceedings that,would involve revocation, suspension or modification of a
-license; and 2) Subpart L already authorizes a presiding officer's
. recommendation that the Commission approve other procedures in a particular 4
proceeding-otherwise conducted under Subpart L procedures.
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The, law' firm representing PROS argued that the informal procedures are insufficient for actions that could deprive an operator of his or her property
~ interest in the continueo validity of the license and his or her liberty interast in pursuit of a career as reactor operator.
PROS would support the amendments only if they were modified to make informal procedures available as an option to an operator in lieu of formal proceedings. Another commenter, NUMARC, believed that the codification and use of informal hearing procedures for the grant, renewal or licensee-init:ated amendment of a reactor operator license woula provide fair, efficient and effective adjudication.
i Nonetheless, NUMARC suggested that it would be desirable for the NRC to apply Subpart G to proceedings concerning.the denial of an initial or renewal applicatinn because of the significance of such a denial for the operator.
The Commission believes that these commenters similarly fail to give sufficient consideration. or weight to the specification of circumstances in 1which formal' procedures will apply and to the authorization of the presiding N
officer to recommend other than informal procedures in appropriate cases.
~ Moreover, these commenters do not scrutinize closely the type of affected
. individual.. interests or the general types of inquiries'in the adverse actions -
at issue.
A party's entitlement to a hearing is determined by the balancing of three factors:
the private interest affected by official action; the probable
'value 'of additional or different proce; res; and the Government's interest,
.. including the function involved and the fiscal and administrative ' burdens of additional' or diff$ rent procedural requirements. Mathews v. Eldridae, 2424 U.S._319,-335 (1976). After reviewing and weighing these factors, the Commission remains convinced ~that the informal adjudicatory procedures set d
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forth in Subpart L are appropriate for the reactor operator licensing proceedings.to be covered by this rule.
This conclusion follows from a number
.of observations and findings, but in particular the following:
- 1) the nature of the interests at stake; 2) the Commission's provision of a meaningful hearing at a meaningful time _; 3) the appropriateness of informal-procedures for resolution of the typical inquiries-in the proceedings to be held under Subpart L; and 4) the opportunity to obtain other procedures when they are
- necessary for a fair resolution of critical factual issues.
The Commission recognizes that substantial personal interests may be affected by the decision to grant or deny an application for a reactor
- operator license.
However,; the nature of the affected interest is. limited by
. virtue of the fact thu reactor operator liceMe applicants are subject to broad. commission powers to ' grant or deny, and operator licenses permit' s
performance' of the licensed functions aalv in c rpecific facility,10 CFR c
55.53(b)-(c), where the licensee of or>?
has certified to the need for
. the position and requested examination of the applicant for a license..10 CFR 55.31(a)(3)-(4)
.The interest at issue is also somewhat limited by the fact that reactor operator licenses expire six years.after issuance with no
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guaranteed right to renewalj 10 CFR 55.55.
Moreover, the-applicant for i
initial ~ issuance of an o'perator or senior operator 1icense does not face a deprivation of a vested or -existing position or status.
An' individual seeking y
renewal of an-existing license may feel that he or-she'has been deprived of a x
vested or existing position or status, but there is no guaranteed right of renewal. Therefore it is t certain that protected interests are always or genera 1h stake in proceedings concerning the issuance or renewal of a Part L
55~..licenn However,--the Commission will nonetheless assume for purposes of u
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..o.x L'furtherLdiscussion that.they are.
The key question remains as to whether the_ Commission is providing less procedure than due process requires under the circumstances.
The Commission is,providing-a hearing. And, it is clear that due process does not require full trial-type procedures in every such case.
"The fundamental requirement of-due process is the opportunity to be heard 'at a meaningful time and in a me'aningful manner.'" Mathews v. Eldridae, 424 U.S. at 333 (quoting Armstrona v. Manzo, 380 U.S. 545,-552 (1965)).
The Supreme Court has repeatedly emphasized that "'[d]ue process,' unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances." M. at 334. (quoting Cafeteria Workers v.
McElrov,- 367 U.S.
886,.895 (1961)). Thus, "'[d]ue process is flexible and calls for such
-procedural protections as'the particular situation demands.'" JA. (quoting Morrissev v. Brewer,'408 U.S. 471, 482 (1972)).
The nature of the relevant-inquiry is central to the evaluation of the fs fairness ~and reliability of the existing procedures and the probable value, if
.any, of additional safeguards. M. at-343.
Arguing that the Commission should bolster initial and renewal applicants' access to formal adjudication, one'commenter emphasized that the requirements for_a Part 55 licenst I
. necessitate. subjective evaluations on such issues as health, and administration of the written examination and operating' test.- See Section 11--
B-2-a.~
The Commission does believe that the typical issues in reactor l
operator proceedings for the grant or renewal of licenses are likely to l
.concorp performance on-a written examination or an operating test. As set iforth in Part 55, however, these examinations test knowledge, skills and abilities pertaining to specific-technical and scientific matters.
See 10 CM 8
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- 55.41(b), 55.43(b), 55.45, 55.57 and 55.59(a).
In addition, the Commission has issued standards for-examination and grading of the tests. S.gg NUREG-1021 ~. 3.While some parts of these examinations may be less amenable to
" objective" evaluation than other parts, s.a., short answer as opposed.to multiple choice questions, the subject matter still falls within the Commission's special-' expertise and judgment.
Even when substantial factual i
issues arise regarding performance on a question or problem concerning technical or scientific knowledge or judgment, oral trial-type presentation imay not be required. $3qq Kerr-McGee Coro. (West Chicago Rare Earths facility),
OL1-82-2,'15 NRC 232, 259-60 (1982), aff'd sub nqa. City of West Chicaao v.
.i 1
[IBL, 701 F.2d 632 -(7th Cir.. '1983), and cases cited therein.
Indeed, in such cases the right to cross-examination may serve little or no purpose, and i
result only in futility or delay. S_e_q Buttrev v. United-States, 690 F.2d J
1170, 1182 (5th Cir.'1982). And, the possibility or existence of professional
. disagreement over an' applicant's health, for example, doec not suffice-to create a specter of questionable credibility or veracity. Eg.e Mathews v. Eldridae, 424'U.S. at'344.
Moreover, an applicant who is denied a
' license =because of failure to' pass the written examination or operating test, or both, may reapply two months after the date of denial, and make successive applications at other intetvals thereafter.
These.
opportunities.for. reapplication in and of themselves may satisfy the purposes of a hearing ifione is otherwise required. Egg lyler v. Vickerv, 517 F.2d 2
H t ' Copies of NUREGS may be purchased from the Superintendent of Documents, U.S. Government Printing Office, =P.O.' Box 37082,- Washington, D.C. 20012-7082.
Copies are 'also available from the National Technical Information Service, 5285 Port Royal Road, Springfield, VA 22161.
A copy is also available for 4
inspection and/or copying at the NRC Public Document Room,
~N.W., Washington, D.C.-
2120 L Street, 9
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.n 1089 (5th Cir.- 1975).1For the renewal applicant, the risk of error and the need'for other procedures is also reduced by the fact that the Commission will permit _ the licensed operator to take the NRC requalification examination three times before denying the renewal application on the basis of the_ licensee's failure _of the NRC requalification examination.2 Recommendation and approval of other procedures such as cross-examination may occur, for example, where resolution of substantial factual t
-issues involving witness credibility, bias or veracity is essential to the determination of a license renewal'.
However, the Commission expects that the broad powers of a presiding officer in Subpart L proceedings will permit fair, correct and efficient decision-making in typical reactor operator licensing proceedings; _In any event, the Commission need not provide formal
' adjudication for_ all hearings requested by initial or renewal applicants simply because.some hypothetical cases not before the Commission' arguably may
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require the use of formal pr.ocedures. S_tq FDIC v. Mallen, 486 U.S. 230, 247-48 (1988)..
The Commission's conclusion that Subpart L procedures are sufficient for proceedings concerning the granting and renewal of reactor ' operator licenses is not altered by.the emphasis of one commenter,- the law firm representing -
p-D4 five utilities,_ on the rarity of hearings concerning Part 55 licenses and the L
o relatively smaller volume of Part 55 licenses as compared to materiar 7,
= licenses. ;Despite the' history of a small number _ of reactor operator licensing t,j hearings,. reduced cost and delay while maintaining-fair. procedures should -
P 2NUREG 1021, Rev. 6, ES-605 (June 1, 1990). I-The licenscc ny be-r=M H
frein-1 lceiieed duties etic, Tiiling the first MC-edciitaiste,ed,equelifirtien Axaminat-lon--and=will b= re=:+ed % licca;cd duti;; ;fter fciling : t ecan!
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'uor_2aministered m: % n ige 10
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' remain important objectives for.both the Commission and the parties.
In
~ ddit' on, the cost of-one or a group of: formal hearings in reactor operator a
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licensing cases could in fact prove substantial.
In e nh formal proceeding, a three-member licensing board or an administrative law judge must be appointed, and with that would also generally follow the costs of such procehres as formal discovery, prefiled testimony and a trial-type hearing with oral m
testimony of '.he witnesses and cross-examination.
For instance, real costs associatedwithformal, trial-typeadjudicationsarisefromneefforcourt X
reporters, transcripts, rect for hearing facilities,3 and travel expenses for necessary agendy personnel. Moreover,, the commenter conceded that it is difficult to' generalize from the figures, considering the fact that the Commission did issue 790 Part 55 licenses and processed 1750 renewals during 1987.
'2..
'Of ffett;nces Between Challenges to Proposed Enforcement Action and
- Challenges to the Denial of the Grant.or Renewal of a Ucease
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One commenting utility requested further justification of the Commission's. decision to grert formal hearings in proceedings resulting from proposed enforcement. action but infornal hearings in proceedings concerning the denial' ofithe issuance or renewal of a license.
It has been a long--
. standing: Commission policy to provide the opportunity for formal adjudication
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lregarding the CommissWs enforcemer.t actions affecting licenses. This should not come as a surprise in light of the severity and potential stigma of
- Commission-initiated action for revocation or suspension of a license, or a 3Pursuant to agency policy, the trial-level proceedings conducted in formal Subpart G adjudications are usually held near 'the applicant ~ or E
licensee involved, and this often requires renting _ a hotel conference room or similar facility.
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civil penalty,f as well as the propriety of formal procedures for adjudication of such underlying issues as a material false statement and willfui violation of a rule or ' regulation.. Ette 10 CFR 55.61. As noted above, the Commission does not contemplate that the typical grounds of denial of an initial or
-renewal application will generally involve such issues.
B.
Comments Relating to Specific Provis' ions of Suboart L f
1.
Proposed 9 2.1201--Scope of Subpart The law firm representing PRCS dec t red that it was not possible to
.d,iscern the circumstances to which the proposed rule would and would not apply.
In particular,.this :commenter felt that proposed 5 2.1201(b) was extremely vague.
Other commenters.did not appear to have this difficulty.
y' The Commission sees-no need for any change in the proposed amendments, but
'will elucidste briefly the application of the amendments.
Section 2.1201(a) clearly provides 'that the rules of Subpart L will govern procedures in an
.adjudicc' ion initiated by alrequest for a hearing in a proceeding for the grant, renewal, or licensee-initiated amendment of an operator or senior t
operator license. On the ot'her hand, the proposed amendment of 5 2;1201(b) provides that the formal procedures of Subpart G will govern an adjudication 1
.regarding an operator or senior operator license that arises from a request for hearing under Subeart B of 10 CFR Part 2 Lon an order to show cause, an.
order for ' modification of license, or a civil penalty. An order to show cause under Subpart B is' the mech [nism by which the Commission would generally:act E
to revoke or suspend a license.
Thus, the Commission contemplates that.the-formal precedures of Subpart"G will govern proceedings to revoke or suspend an operator or senior operator ' license subject to Part 55.
The proposed 12 s
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amendment-of f 2.1201(b) also' would make the formal procedures set forth in Subpart G applicable to an adjudication initiated by a notice of hearing issued under 6 2.104, or a notice of proposed action under 5 2.105.
The Commission's construction of s5 2.104'and 2.105 is set forth in West Chicaao, j
15 NRC at 244-46.
Application of these provisions to reactor operator i
licensing under Part 55 would.arise if the Commission determined that the i
public int'erest required a formal hearing on a particular application for, or.
amendment to, a' reactor operator or senior operator license.
Of course, this i
rulemaking' record indicates that the Commist.;on does not expect that it will l
.be making the requisite determinations under 55 2.104 and 2.105 with regard to reactor operator. licensing proceedings.
2.
Existing 9 2.'1205--Request for c Hearing; Petition for Leave to Intervene i
a.' Reauests for Formal Adiudication.
One utility. and the law firm representing five utilities urged that the Commission add a provision that explicitly. permits an operator to request formal adjudication upon a showing of apod cause or special circumstances. The latter commenter recommendnd ispecifically an. amendment of existing 6'2.1205(b) so as to provide explicitly 5
i to the Part 55 license applicant "who-is issued a~ notice of proposed denial or l
a notice.of denial" the opportunity to include in his request for hearing a specific. request for formal adjudication.
The amendment would require that y
the' applicant include with the request an explanation of the circumstances j
h requiring such formal procedures as discovery and cross-examination of L'
witnesses. This commenter conceded that the procedures in Subpart L are generally appropriate for hearings on Part 55 licenses, but analyzed the 3
balancing factors for determining administrative due process as warranting i
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' trial-type proceedings in many cases, particularly for renewal applicants.
The Commission has responded to many of this commenter's views on due process in Section Il-A-1, above.. Whi,_ the Commission differs with some of the commenter's views on the circumstances which are likely to warrant use of
- other procedures, explicit authorization' of an early vehicle for the applicant's identification of case-specific needs for other procedures is desirable. -Thus,.the final rule amends f 2.1205(b) so as to authorize the l
applicant to' request, :within the request for a hearing, "that the presiding officer recommend to the Commission that procedures other than those authorized _under this subpart be used in the proceeding, provided that the applicant identifies the special factual circumstances or issues which support the use of other procedures."
'Under 6 2.1209, the presiding officer already "has the duty to conduct a fair and impartial hearing according to law" and "has all power necessary to
- those ends, including'the power to... (d]ispose of procedural requests or q
'similar matters'." And, nothing inLSubpart L expressly prohibits the applicant who-is; subject,to_Subpart L. procedures from asking within the1 request for 5
hearing, or separately, that' the presiding officer exercise the power to t
"[r]ecommend to the Commission that procedures other than those authorized under (Subpart L]'be used'in [the) proceeding." Seg 10 CFR 2.1209(k).
Nonetheless, explicitLrecognition of an opportunity under Subpart L for applicants;to request.other' procedures within their request for hearing clarifies the procedural scheme and tr.ereby enhances the ' applicant's access to n
other procedures'where appropriate.
The Commission is not altering, however, i
the necessity of the Commission's authorization of the use of other procedures. Thus, the new provision only authorizes the applicant to request
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" * - t$at the prasiding officer make the necessary recommendation to the Commission,-
- b. Standina for Intervention. Oneutilityurgedthespecificationofa[
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oveenai=;tr strict test ;f,;.dici:1 anding for intervention in operator
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license. proceedings.
Specifically, the commenter suggested thatfm.W...ird5 kk g
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-pee 4y be re' quired to demonstrate that it will present evidence that would materially-alter the outcome of the NRC-hearing decision.
NUMARC also recommndd a clarification that the threshold of standing for intervention in reactor operator licensing adjudications, under either'Subpart L or Subpart G, will be very high.
The preb'er "ith r-c:;u.. ing suu;. ;. d::e"+"+4e--ef.e mat:ri;l :.itsouei. ;f th; entc:;
ef th; m ucecuing is tnat iL ovuld gl;.;; :n
=tr::r'y hi@ burdca ;n the _petitiener fe! Stervert!=,
The Commission shares the concern that intervention not be indiscriminate. such as for the purpose of creating unnecessary delay.
However, the Commission believes that the existing' procedures:and judicial standards for standing will provide fair and sufficient scrutiny of petitions fo-intervention. figg 10 CFR 2.1205.
Under Subpart L, for example, the petitioner for-intervention must show how 4
its ~ interests _will be affected by the proceeding and identify the concerns of the petitioner.
10 CFR 2.1205(d),(j).
And, the presiding officer must h
determine t at the specifietareas of concern.are germane to the subject matter of the proceeding, and that the petition is timely and meets the D ffd 9 M
. judicial standards for standing.
10CFR2.1205(g),(j)(3).gJnterventionis, 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 qualificati_ons for the position.
in promulgating Subpart L, the Commission indicated that the " distance t
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standard" established by NRC case law for standing in.Mclear reactor L
M licensing proceedings, whereby persons residing within fifty miles of a g
g facility generally. are considered to have standing, was not applicable to-L
' material licensing proceedings. [54 FR at 8272)
The Commission will take l
p this opportunity to clarify.that the " distance stadard" is not automatically
' appl.icable to reactor operator license proceedings.
The standing of a
. etitioner in-each case should be determined upon the basis of the p
circumstances of that case as they relate to the factors set forth in 5 2.'1205 (g).
i c.
Acceal of the Denial of 'a Reauest for Hearino.
Section 2.1205(n) of 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 the order.
Th:t.ppeai currend.7 lic: "ith thm Atea;i; S;fet3 and Licensing app;;l Ce. J.
i0 dx 4.1455.
The law firm representing five utilities requested that the' Commission amend existing 6.2.1205(n) so as to permit an immediate appeal of a presiding officer's denial of a request for a formal hearing..As discussed below, this commenter also recommended that the Commission give the presiding officer the power to grant a request for e eth^r 4
pr::;;dirp The Commission-declines to adopt this recommendation fort r:
A existing procedure for an immediate appeal is premise
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reasons.
upon'the denial of 10.Y hearing as a: final bar to adjudication.
This is far tt Tenussl k udA different circumstance for appeal than a mere c.anial'. of[t.ber procedures for a
< hearing that is.in fact granted.
Indeed, completion of the informal adjudication may resolve the requestor's concerns. SO :nd, f;r re::;n: :teted-t:ler, the M-i"4-5:: ch::en t;,etain the e"the-ity t Order prc::dur : -
h additi:n to th;;; n ';nbpert L for pre;ssJing vth;r i : ;;;vecncJ Ly 16
1
/ e ;y+g, e-< wqn a r14-9 ::h ";;14-3+= +he p r;;s; -
nytg &L 2- ?,y' A ^ : 5^-ann
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g deci:::=' ::km; hy-i ::!"80"+ cf th: App 0M "Or: '-
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. M ~R ; Aierro W 6ngp%- :th:r pr;;;;dia;m,_.,
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7 mia.,,y, the 5
- w:
Commission sees rio reason'to carve out for reacto,r operator hearing questions att M
- a special exception to its existing proceduresjef appeal and review.
p 3.
Existing i 2.1209--Presiding Officer's Powers The law firm representing five utilities recommended that the Commission amend existing i 2.1209(k) so as to authorize the residing officer in a Part b A G//tw Cu r)%FeeduA V.
55 hearing to grant a requestj or Othen.djedk.ti;r7 f
ently, the presiding off'cer's power under 5 2.1209(k) is limited to a recorrmendation that the Commission authorize the use of other procedures for a particular L
proceeding. The. recommended change might slightly expedite decisionmaking on a request for other adjudication.
However, the Commission 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 Commission serves the interests of uniformity of decisionmaking, full consideration of the potential commitment of costs and resources, and ~
administrative finality.
This commenter also recommended amendment of 6 2.1209 so'as to authorize the presiding officer to entertain a specific request for a. formal adjudication'or for certain formal procedures in the course of the hearing if the'need for such procedures becomes. apparent. A ' presiding officer, however, already has authority 'to entertain such requests during the course of an informal hearing.
Nothing in Subpart L. prohibits any party from presenting such.a motion to the presiding officer during an informal proceeding.
See 10 CFR 2. 1237. Moreover, the Commission need not and probably could not specify 17
. ~
f all or even most types of procedural motions and supporting circumstances that could be, presented de-ing the course of an informal hearing.
4.
Existing 6 2.1211--Nonparty Participation NUMARC expressed concern about the application of 5 2.1211 of Subpart L, which provides for participation in a hearing by a person not admitted as a party, including a representative of an interested State, county, municipality or agency thereof.
Section 2.715 of Subpart G contains similar provisions.
-The commenter recommends. that the Commission clarify that such nonparties should not be. able to use individual operator license proceedings to address
-an issue other than an issue that is the subject of the hearing.
The.
te.
' Commission notes that 5 2.1211 alreadystatesthat"[t]he-presidingofjerEH permit'.a person who is not a party to make a limited appearance in order to state his or her views.on the issun."
10 CFR 2.1211(a) (emphasis added). '
'The rule al.so requires that the request for governmental participation " state with reasonable specificity the requestor's areas of concern about the f
10 CFR licensing activity that is the subiect matter of the croceedina."
2.1211(b)l(emphasis 'added).. Although>the nonparty participant may not be required-to take'a position on the issues, the views to be expressed must-
+
relate:to the issues that are properly subject to challenge in such a
, As with the consideration of a petition for intervention, the'
. proceeding.
. presiding _ officer may determine that the views to be expressed are not germane to.the; proceeding and therefore may deny the request for nonparty participation.
For=these reasons, the Commission sees no need for other clarification of the limits on nonparty participation-,
' Environmental Impact:
Categorical Exclusion
= The NRC has determined that this final rule is the type of action 18 m
m m
4 e
i described in categorical exclusion 10 CFR 51.22(c)(1). Therefore, neither an
. environmental impact statement nor an environmental assessment has been prepared for this. final. rule.
Paperwork Reduction Review This final rule contains no information collection requirements and
~~
therefore is not subject tc the requirements of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.).
Regulatory Analysis The Atomic. Energy Act affords interested persons'the right to a hearing regarding a reactor-operator licensing proceeding. As the Commission previously indicated in its decision in West Chicaao, 15 NRC at 241, the use
.of informal procedures generally involves less cost and delay for the parties and,th'e Commission than the use of formal, trial-type procedures, the principal other procedural alternative. ' Also, procedures must be in place to allow for the orderly conduct of those adjudications. Codifying the informal hearing procedures for operator licensing proceedings is preferable to the present practice of. establishing the procedures to be followed on a case-by-case basis.
By codifying the procedures, the ' Commission will avoid the expenditure of time and resources necessary to. prepare the individual orders
'that previously have been used to designate-those procedures. This final rule
.j is the preferred. alternative and the cost entailed in its promulgation and application is necessary and appropriate.
The foregoing discussion constitutes the. regulatory analysis for this final rule.
Regulatory Flexibility Certification
-The NRC hereby.-certifies that.this final rule will not have a significant
- economic impact upon a substantial number of small entities. iiany operator 19 s.
7 i
'.m
~ license applicants or operator licensees fall within the definition of small d
businesses found in section 34 of the.Small Business Act,15 U.S.C. 632,. or 1
the:Small Business Size Standards set out in regulations issued by the Small Business Administration at 13.CFR Part 121, or the NRC's size standards published December 9, 1985 (50 FR 50241). The final rule should reduce the litigation cost burden upon applicants or licensees because of the informal i
nature of the hearing, although submission of filings > and documentary J
information detailing contested legal and factual issues is still required.
Cost reduction in comparison to the cost of participating in a formal
~ djudicatory hearing can.be anticipated, although it cannot be estimated with a
certainty whether that reduction as a whole will be significant.
It is clear that use of informal hearino oroce.dures should not increase the burdens of a hearing. upon an applicant or licansee.
Backfit Analysis Because these. amendments do not inve'vc any provisions that wouid impose backfits as defined in 10 CFR 50.109(a)(1),-the NRC has determined thit the backfit'. rule,.10 CFR 50.109, does not apply to this final rule and, tterefore, i
'that a backfit analysis'is not required.
c/' _
List of. Subjects in 10 CFR Part.2 Administrative practice and procedure, Antitrust, Byproduct material,
' Classified information, Environmental protection, Nuclear Materials, Nuclear j
-power plants and reactors, Penalty, Sex discrimination, Source material, Special nuclear material,-Waste treatment and. disposal.
i For the reasons set out in the preamble and under the authority of the Atomic Energy Act'of-1954, as amended, -the Energy Reorganization Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and 5 U.S.C.
20
?
1.
,~.
- .F E552 and 553, the NRC is' adopting the following amendments to 10 CFR Part 2:-
Part 2 -- RULES OF PRACTICE FOR 00MESTlc LICENSING PROCEEDINGS l '.
The authority citation for Part 2 continues to read as follows:
AUTHORITY:
Secs. 161, 181, 68 Stat. 948, 953, as amended (42 U.S.C. 2201,.2231); sec. 191,.as amended, Pub. L.87-615, 76 Stat.
409 (42 U.S.C. 2241); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); 5 U.S.C. 552.
-Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104, 105, 68 Stat. 930 932, 933, 935, 936, 937,-938, as amended (42
.S.C.i2073, 2092,.2093, 2111, 2133, 21234, 2135); sec. 102, Pub. L.91-190, 83. Stat. 853, as amended (42 U.S.C. 4332); sec. 301, 88 Stat. 1248-(42 U.S.C. 5871).
Sections 2.102, 2.103, 2.104, 2.105, 2.721 also issued.under secs. 102, 103, 104, 105, 183, 189,1 68 Stat. 936, 937, 938, 954, 955, as amended (42 U.S.C. 2132, 2133,
'2134, 2135,'.2233, 2239).
Section 2.105 also issued under Pub. L.97-415, 96 Stat.-2073 (42 U.S.C. 2239).
Sections 2.200-2.206 also issued under-secs. 186,;234, 68 Stat. 955, S3 Stat. 444, as amended
.42 U.S.C. 2236, 2282); sec. 206. 88 Stat. 1246 (42 U.S.C. 5846).
Sections 2.600-2.606 also issued under sec.102, Pub. L.91-190, 83 Stat. 853, as amended (42 U.S.C. 4332).
Sections 2.700a, 2.719 1
also issued u'nder 5 U.S.C. 554.
Sections 2.754, 2.760, 2.770, 12.780 also-issued under 5 U.S.C. 557.
Section 2.764 and Table ~1A of. Appendix C also issued under secs. 135,141, Pub. L.97-425, 96
' Stat. 2232, 2241-(42 U.S.C. 10155, 10161).
Section 2'790 also issued under sec. 103, 68 Stat. 936, as amended (42 U.S.C. 2133) and 5 U.S.C. 552.
Sections 2.800 and 2.808 also issued under 5 U.S.C. 553.. Section 2.809 also issued under_5 U.S.C. 553 and sec.
29, Pub. L.'85-256, 71. Stat. 579, as. amended (42 U.S.C. 2039).
Subpart K also issued'under sec. 189, 68 Stat. 955 (42 U.S.C.
l 2239); sec.'134,' Pub. L.97-425, 96. Stat. 2230-(42 U.S.C. 10154).
- }
Subpart L also' issued under sec. 189, 68. Stat. 955 (42 U.S.C.
i 2239). Appendix A also issued under sec. 6, Pub. L.91-560, 84 Stat. 1473 (42 U.S.C.-2135). Appendix B also~ issued under sec. 10, Pub. L.99-240,.~99. Stat. 1842-(42 U.-S.C. 2021b,.et seq.).
l 2.
.The heading of: Subpart-L of Part 2 is revised to read as follows:
Subpart l'-
Informal Hearing Procedures for Adjudications in I-
' Materials and Operator Licensing Proceedings i
s 3.
Section 2.1201'is revised to read as follows.
L 2.1201 Scope of subpart.
- g
'(a) The general rules'of this subpart govern procedure in any
' adjudication initiated by a request for a hearing in a proceeding for --
21 l.
gr
. ;.8 :
y*
(1) The grant, transfer, renewal, or licensee-initiated amendment of.
a materials licerse subject to Parts 30, 32, through 35, 39, 40, or 70 of this chapter; or (2) The grant, renewal, or licensee-initiated amendment of an
~
operator or senior operator license subject to Part.55 of this chapter.
(b) Any adjudication regarding a materials license subject to Parts 30,
~
32 through 35, 39, 40, or 70, or an operator or senior operator license i
subject to Part 55 that.is initiated by a notice of hearing issued under 6 2.104, a notice of' proposed action under 2.105, or a request for hearing under Subpart B of 10 CFR Part 2 on an order to show cause, an order for modification of license, or a civil penalty, is to be conducted in accordance with the procedures set forth in Subpart G to 10 CFR Part 2.
4.
.In 6 2.1205, paragraph (b) is revised to read as follows:
+
(b) An. applicant for a license, a license amendment, a license transfer, i
or'a license renewal who is issued a notica of proposed denial or a notice of denial and who desires a hear,ing shall file the request for the hearing within the time specified in 6.2.103 in all cases.
An applicant may include in the request for hearing'a request that the presiding officer recommend to the t
22 w
4
. i.*
c
~'..
Commission that procedures other than those authorized under this subpart be e
j used in the proceeding, provided that the applicant identifies the special factual circumstances or issues which support the use of other procedures.
a Dated at Rockville, MD, this day of-
, 1990.
V For the Nuclear Regulatory Commission.
1 L
i s-i Samurl J. Chilk I
Secretary of the Commission
.l I
1 l'
I f
4 f
23
ES-605 MB/74 Rev 6 06/01/90 g/)
l PROCEDURES FOR PROCESSING RENEWAL LICENSE APPLICATIONS PURSUANT TO 10 CFR PART 55 - REQUESTS FOR ADMINISTRATIVE REVIEWS AND HEARINGS A..
PURPOSE This chapter is established to specify the procedures for the NRC staff in processing requests for administrative reviews and hearings by 10 CFR Part 55 licensees in connection with f ailures of NRC-administered requalification examinations and denials of applications for license renewal.
B.
BACKGROUND
~Due to the dif ferences between initial license and renewal license applications, this separate chapter is established to specify the procedures to be used to process licensee requests for administrative reviews and hearings related to license renewal.
The 1987 revision to 10 CFR Pa.t SS included a requirement that applicants for renewal of six year licenses pu-a comprehensive written examination and operating test administered by the NRC during the term of the current six year license.
By this change to the r e 1ations, failure of NRC-administered examinations may be tie basis for revocation of a current license and/or denial of an application for license renewal.
NRC-administered requali-fication examinations are administered in accordance with the Examiner Standards, NUREG 1021.
C.
PROCEDURE FOR ADMINISTRATION OF NRC EXAMINATIONS An NRC-administered requalification examination will be administered to each six year licensee during the term of the six year license.
If the licensee passes, he/she should be so informed (Attachment 1).
If a licensee fails the first NRC-requalification examination administered pursuant to 10 CFR 55.57, and the facility.-licensee's requalification training program is determined to be satisfactory;. the facility will take corrective action consistent with its NRC-approved requalification program, i.e., the facility will remove the individua1'from licensed duties, retrain the individual, and retest the indi-vidual.in the areas of weakness.
If the individual tests-satisfactorily, the
. facility licensee may= return the individual to licensed duties.
The. individual, however, must pass'an NRC-administered examination to be eligible.for license renewal.
It a licensee fails-the-first NRC requalification examination administered pursuant to 10 CFR 55.57 and the facility's training program is. determined to be unsatisfactory, then the same procedure shall be applied, with the exception that the individual'shall not be returned to licensed duties until he/she has passed an NRC reexamination. which will also make the individual eligible for license renewal.
The Regional Office that has the licensing authority for the licensee who failed the first NRC-edministered requalification examination will inform the licensee of the failure (Attachment 2 or 3) and administer a second requali-fication examination to the individual. The second NRC-administered examination will usually be administered within six months of the initial failure notifi-cation, and will address the area (s) where the licensee exhibited deficiencies, If the licensee fails' a second NRC-administered examination, the licensee s.
Examiner Standards 1 of 9 (vk
A ES-605 Rev 6 06/01/90
. will be removed from licensed duties.
The individual will be informed of the second failure (Attachment 4) and apprised of the fact that he/she must not return to licensed duties until-the individual passes a comprehensive NRC-administered requalification examination.
The-requalif.ication examination
'will include a comprehensive written examination and a complete operating test.
The examination will be scheduled at a time that will permit the individual adequate time to prepare for the examination and will consider the availability of facility licensee and NRC resources.
Failure of the third requalification examination will result in a thorough review of the individual operator's performance and the-facility's training program.
The third failure may be grounds for suspension and/or revocation of the individuals license.
In the case that the individual has a renewal applica-
. tion pending before the NRC, failure of the third requalification examination would provide the basis for denial of that renewal application.
A licensee who has successfully passed an NRC-administered requalification erimination for the purposes of license renewal may subsequently be part of another operating crew and therefore subject to the simulator portion of another NRC-administered examination to qualify other members of the operating crew for license renewal..If the licensee who successfully passed an earlier simulator portion of a NRC-administered examination fails a subsequent exami-nation, the f acility. licensee will take corrective action consistent with its NRC-approved requalification program as described in the paragraphs
- above.
The licensee will be informed of the failure (Attachment 2 or 3) and administered another NRC-administered simulator examination in about six months.
If the licensee fails the re-examination the licensee will be removed from licensed duties and fall into the.same category as outlined above for second and succeeding failures.
D.
PROCEDURE FOR DENIAL OF AN APPLICATION FOR LICENSE RENEWAL If, upon' review of NRC Forms 398 and 396, submitted by a licensee to demonstrate eligibi.lity. for license renewal, the staff concludes that the licensee does not meet the requirements for renewal. pursuant to 10 CFR 55.57, the licensee shall be notified and the deficiencies noted.
The licensee will be given the oppor-tunity to supply supplemental information.
If, after additional information is supplied, the NRC staff still concludes that the application is. inadequate for 11censesrenewal,.the licensee will be issued a proposed denial of his/her
~
license renewal application, which notes the deficiencies (Attachment.5).
Within 20 days of the date of the letter of notification of proposed denial, the licensee may exercise one of the following options:
1)
Request, in writing, a review of the application.
Such a request should be sent to the Director, Division of Licensee Performance and 4
Quality Evaluation, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555, and should include the reasons for the review request and supporting documentation as applicable.
2)
Request, in writing, a hearing pursuant to 10 CFR 2.103(b)(2).
A hearing request is required to be submitted to the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, D.C.
20555, with a copy to the Assistant General Counsel for Hearings, Office of General Counsel, at the same address.
Examiner Standards 2 of 9
'ES-605 Rev 6 06/01/90 If the licensee exercises option (1) and the application denial is sustained
~ (Attachment 6), the applicant may request a. hearing pursuant to 10 CFR 2.103(b)(2).
E.
PROCEDURE FOR DENIALS THAT ARE OVERTURNED If, as.the result of a hearing process, the licensee's failure of a requalifi-cation examination is overturned:
(1) the licensee's license will be reinstated, (2) the licensee will be eligible for license renewal pursuant to.0 CFR 55.57 if all'other requirements are satisfied and (3) the facility licensee may
=
return the licensee to-licensed duties when he/she has been brought current with respect to the facility's requalification program and the provisions of 10 CFR 55.53(e).
If, as a result of a hearing process, the denial of a licencee's renewal application is overturned, the licensee will ce eligible for license renewal pursuant to 10 CFR 55.57 if all other requirements which were not at issue in the hearing are satisfied.
F.
NOTES
=
(
1.
Letters informing a licensee of a proposed denial must be signed by a Branch Chief or higher.
In the event of an appeal, DLPQ generated correspondence will include a distribution copy to the appropriate k-regional Licensing Assistant for tracking purposes.
_ Provide the facility licensee's representative authorized to sign the renewal 2.-
application a-copy of correspondence to the licensee generated as a result of this process.
3.
The Director, DLPQ, will keep regional management informed of the status of his actions as a result of this process and will acknowledge correspondence from the licensee.
4.
All examination failure or adverse action correspondence sent to the licensee is to be sent via certified-mail, return receipt requested.
5.
It is inappropriate to ask the facility licensee to reassess the need for an operator's license while the informal review process or a hearing is ongoing.
Examiner Standards 3 of 9 l
r ES-605 Rev 6 06/01/90.
R0/SRO REQUALIFICATION EXAMINATION PASS LETTER FROM THE REGION Docket No. 55-(Number)
(Applicant Name)
(Street Address)
(City, State Zip)
Dear (Name):
This letter is to inform you that you passed the NRC-administered requalification written examination and operating test taken on (date).
Enclosed is a copy of,.ES-601 summarizing the results of your examination.
Your facility training department has a copy of the master answer key.
'If you have a question, please contact (Name) at (number).
Sincerely, (Regional Branch Chief) cc:
(Facility authorized representative who signs NRC Form 398) 1 1
l l
L l
l Examiner Standards 4 of 9 l
~
Rev 6 06/01/90 h
R0/SRO REQUALIFICATION EXAMINATION / TEST FAILURE LETTER FROM THE REGION (SATISFACTORY PROGRAM)
Date Docket No. 55-(Number)
(Applicant Name)
I (Street Address)
(City, State Zip)
Dear (Name):
.This is to inform-you that, based on the grading of the NRC-administered requalification (written examination and/or operating test) taken'on (date),
you did not achieve an acceptable score.
Enclosed is a copy of the results indicating the area (s) in which you exhibited deficiencies.
Your facility training: department has a copy of the master answer key.
This failure places you in the same status as if you had. failed a facility-administered requalification examination.
Therefore, you are subject to the i
requirements set forth in the NRC-approved requalification program for the facility for which you are licensed and must meet those requirements prior to resuming licensed duties.
For license renewal second NRC-administered requalification examination will be administered to you in the area (s) in which you exhibited deficiencies on (Date).
If you have any questions, please contact (name) at (nuniber).
Sincerely, (Regional Branch Chief or above) cc:
(Facility authorized representative who signs NRC Form 398)
CERTIFIED MAIL-RETURN RECEIPT. REQUESTED 1
~I t
Examiner Standards 5 of 9
ES-605 Rev 6 06/01/90
'R0/SRO REQUALIFICATION EXAMINATION / TEST FAILURE LETTER FROM THE REGION (UNSATISFACTORY PROGRAM)
Date L
Docket No. 55-(Number)
-(Applicant Name)
(Street Address)
(City, State Zip)
Dear (Name):
This is to_ inform you that, based on the grading of the NRC-administered requalification (written examination and/or operating test) taken on (date),
you did not achieve.an acceptable score.
Enclosed is a copy of the results indicating the area (s) in which you exhibited deficiencies.
Your facility training department has a copy of the master answer key.
In as much as your facility's Requalification Program has been found unsatisfactory, your facility should provide you with.the appropriate remedial training but you must not resume licensed duties based upon a facility administered requal.ification examination.
Prior to. resuming
' licensed duties, you.must pass an NRC-administered requalification examination covering the area (s) in which you exhibited deficiencies on (date).
This NRC-administered re-examination will be scheduled for you within the next 6 months.
If you have any questions, please contact (name) at (number).
Sincerely, (Regional Branch Chief or above)
.cc:
(Facility authorized representative who signs NRC Form 398)
CERTIFIED MAIL-RETURN RECEIPT REQUESTED Exc?iner Standards 6 of 9
ES-605-Rev 6 06/01/90 4
R0/SR0 REQUALIFICATION EXAMINATION /SECOND FAILURE LETTER FROM THE REGION Date Docket No. 55-(Number)
(Applicant Name)
(Street Address)
(City, State Zip)
Dear (Name):
This is to inform you that, based on the grading of the NRC-administered requalification (written examination and/or_ operating test) taken on (date),
you did not achieve an acceptable score.
Enclosed is a copy of the results indicating the area (s).in which you exhibited deficiencies.
Your facility training department has a copy of the master answer key.
In as much as this is your second failure of an NRC-administered requalification examination, your f acility should provide you with appropriate remedial training but you must not resume licensed duties based upon a facility administered requalfication examination.
Prior to resuming licensed duties, you must pass an NRC-administered comprehensive requalification examination.
Your facility
)
training manager will be contacted to arrange a time for administration of the examination.
If you have any questions, please contact (name) at (number).
Sincerely, (Regional Branch Chief or above)
(Facility authorized representative who signs NRC Form 398) cc:
CERTIFIED MAIL-RETURN RECEIPT REQUESTED l
l
~
L Examiner Standards 7 of 9 l
ES-605 Rev 6 06/01/90 t
l R0/SR0 RENEWAL APPLICATION DENIAL FROM REGION Date Docket No. 55-(Number)
(Applicant Name)
-(Street Address)
(City, State Zip)
~0 ear.(Name):
This is to inform you that your renewal application for a (senior) reactor operator-license. submitted in connection with the (facility name) does not demonstrate your eligibility for license renewal for the following reason (s):
(Region to discuss deficiencies and applicable part(s) of the Examiner Standards and 10 CFR Part 55 that apply.)
If you do not' accept this pr3 posed denial, you may within 20 days of the date of this letter, exercise ont of the following options.
(1) Request reconsideration of the application denial by submitting such a request to the Director, Division of Licensee Performance and Quality Evaluation, U. S. Nuclear Regulatory Commission, Washington, D.C. 20555, stating therein the reasons _for the request and support-ing documentation as applicable.
If the proposed denial is upheld, you'may then request a hearing pursuant to 10 CFR 2.103(b)(2).
(2) Reques+'a hearing pursuant to 10 CFR 2.103(b)(2).
A hearing request is required to be submitted, in writing, to the Secretary of the Commission,'U.S. Nuclear Regulatory Commission, Washington, D.C.
20555, with a copy to the Assistant General Counsel for Hearings, Office of the General Counsel, at the same address.
If< you have any questions, please contact (name) at (number).
Sincerely, (Regional Branch Chief or above) cc: (Facility authorized representative who signs NRC Form 398)
CERTIFIED MAIL-RETURN RECEIPT REQUESTED o
Examiner Standards 8'of 9
Rev 6 06/01/90
.;. e,
R0/SRO RENEWAL APPLICATION DENIAL FROM DLPQ Date Docket No. 55-(number)
(Applicant Name)
(Street Address)
(City, State Zip)
Dear (Name):
This is'to inform you that review of your request for reconsideration of the proposed denial of your renewal application for a (senior) reactor operator license submitted in connection with the (facility name) has been completed.
Your renewal application is hereby denied.
(DLPQ to discuss deficiencies and applicable part(s) of the Examiner Standards, and 10 CFR Part 55 that apply.) When you have met these requirements, you may
= submit another application to the appropriate Regional office.
If you do not accept this-denial, you may, within 20 days of the date of this letter, request a hearing pursuant to 10 CFR 2.103(b)(2).
A hearing request is required to be submitted, in writing, to the Secretary of the Commission, L
U.S. Nuclear Regulatory Commission, Washington, D.C. 20555, with a copy to l
the Assistant General Counsel for Hearings, Office of the General Counsel, at the same address.
If you have any questions, please contact (name) at (number).
' Sincerely, (Director, Division of Licensee Performance and Quality Evaluation Office of Nuclear Reactor Regulation or above)
,cc: ~(Facility authorized representative who signs NRC Form 398)
L CERTIFIED MAIL-RETURN RECEIPT REQUESTED t
Examiner Standards 9 of 9
Ce Y, gg p p(Q ecosogi fo UNITED STATES IN RESPONSE, PLEASE
'g7 NUCLEAR REGULATORY COMMISSION REFER TO:
M900816B
)
n 5
.i W ASHIN GTON,0.C. 20555 j
s August 22, 1990 OFFICE OF THE SECRETARY MEMORANDUM FOR:
James P.,
Taylor
[
Executive Director for Operations William C. Parler, Genera 'Opunsel FROM:
Samuel J.
Chilk, Secreta p
SUBJECT:
STAFF REQUIREMENTS - AFFfRF TION / DISCUSSION AND VOTE, 9:30 A.M.,
THURS Y,
AUGUST 16, 1990, COMMISSIONERS' CONFE NCE ROOM, ONE WHITE FLINT NORTH, ROCKVILLE, MARYLAND (OPEN TO PUBLIC ATTENDANCE)
I.
ISECY4 0 255C FinalFRule"on" Informal 7Procadhia N b Reack$r f0neratorcand, Senior' Reactor ^Onerator'Licensina'Adiudicatigng)
The Commission, by a 4-0 vote, approved a final rule which provides procedures for the use of informal adjudication procedures in nonenforcement operator licensing proceedings.
The rule also includes express per::.lssion for an applicant to include within the request for a hearing a request that the.
1 presiding officer recommend to the commission that procedures o
other than those specified in Subpart-L be used in the o
proce'eding.
En The Federal Register Notice should be revised to-incorporate the attached changes (Attachment 1), reviewed by the Regulatory Procedures Branch ADM, for consistency with Federal Register requir. aments, and forward to SECY for signature'and publication.
j (OGC)
(SECY Suspense:
9/10/90)
II.
SECY-90-209 - Final t990 Waste Confid.ence Decisions and Amendments' to 10 CFR Pa r,t;jlil The Commission, by a 4-0 vote, approved issuance'of the final
" Waste Confidence Decision Review" and final conforming amendments to'10 CFR Part-51 subject to the attached modifications (Attachment 2).
=
9003065 C-
? l Q'Lf c % jy y. 4-!
l5 Of
[
B
e The Federal Register Notice should be revised as noted, and forwarded for signature and publication.
(OGC/EDO)
(SECY Suspense:
9/10/90)
C Attachments:
As stated cc:
Chairman Carr Commissioner Rogers-
. Commissioner Curtiss Commissioner Remick GPA ACRS PDR - Advance DCS - P1-24 l
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4 1-~
W NUCLEAR REGULATORY COMMISSION 10 CFR Part 2 RIN 3150-AD17 1
Informal Hearing Procedures for Nuclear Reactor Operator Licensing Adjudications AGENCY:
Nuclear Regulatory Commission ACTION:
Final rule.
SUf#1RY:
The Nuclear Regulatory Commission (NRC) is amending its regulations to provide rules of procedure for the conduct of informal adjudicatory hearings in nuclear reactor operator licensing proceedings.
The Atomic L
Energy Act of 1954 requires that the NRC, in any proceeding for the granting,
' suspending, revoking or amending of any license afford an interested person, upon request, a " hearing." This final rule would include reactor operator licensing proceedings under the informal hearing procedures already established for materials licensing proceedings.
EFFECTIVE DATE:
[ Insert the date of publication in the Federal Register)
FOR r0RTHER INFORMATION CONTACT:
Roger Davis, Senior Attorney, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555,
'elephone (301) 492-1600.
SUPPLEMENTARY INFORMATION:
I.
Backaround On April 26, 1989 (54 FR 17961-17962), the Nuclear Regulatory Commission published in the Federal Register proposed amendments to its Rules of Practice at 10 CFR Part 2.
The amendments make the informal adjudicatory procedures set forth in 10 CFR Part 2, Subpart L, applicable in proceedings l
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- s t - for the grant, renewal or licensee-initiated amendment of a reactor operator or senior reactor operator license. However, the amendments provide for the use of the formal adjudicatory procedures set forth in 10 C.F.R. Part 2, Subpart G, in any reactor operator licensing proceeding that is initiated by a notice of hearing under 6 2.104, a notice of proposed action under l'2.105, or a request for hearing under Subpart B of 10 CFR Part 2 on an-order to show cause, an order for modification of license or a civil penalty.
On-July 3,1989,_ the NRC extended tne date for submission of comments on the proposed amendments to August 10, 19S9 [54 FR 28822).
Section 189a of the Atomic Energy Act of 1954 (AEA) (42 U.S.C. 2239(a))
provides that in any proceeding for the-granting, suspending, revoking, or amending of any_ license, the NRC shall grant a hearing upon the request of any' person whose _ interest may be affected by the proceeding.
Among the licenses issued'by the NRC are those for operators and senior operators of nuclear reactors (AEA Section 107, 42 U.S.C. 2137; 10 CFR Part_55).
The Commission's rules of practice generally' provide for two types of hearing procedures for licensing proceedings -- formal and informal.
Under
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i 10 CFR Part 2, Subpart G, those requesting a hearing with respect to a
-reactor licensing action or any agency enforcement activity affecting a Llicense'are generally provided a formal, trial-type hearing conducted in l
accordance with the provisions of the Administrative Procedure Act, 5 U.S.C.
1' 554-557-and 10 CFR Part 2, Subpart G.
On the other hand, a request for a hearing regarding an NRC materials licensing action generally entitles an interested person to an informal, legislative-type hearing in accordance with
.10 CFR Part 2, Subpart L.
NRC regulations currently do not specify the type of hearing to be 2
)
4fforded 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.
E 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 Comndssio$k rules should reflect the f(
practice followed in the individual orders.
II.
Comments and Commission Responses The Commission received seven comments representing a broad spectrum of interested persons.
Commenters included three utilities, a law firm i
representing-five utilities, the Nuclear Management and Resources Council t
(NUMARC), a licensed senior reactor operator and a law firm representing the Professional Reactor Operator Society (PROS].
All comments are available for inspection' and copying in the agency's Public Document Room, 2120 L Street,:N.W. (Lower Level), Washington, D.C.
One utility and a law firm representing five utilities expressed general support for specification of the informal adjudicatory procedures that will apply in reactor operator license proceedings, but deemed it necessary or i
- desirable that the amendments explicitly grant applicants and licensees 4
l access to formal adjudication upon a showing.of good cause or special l
l
' circumstances. NUMARC affirmed the rationale for the proposed amendments, i
but nonetheless deemed desirable the application of Subpart G to hearings 3
---e,,,
' concerning the denial of an initial or renewal application.
These commenters also suggested certain changes in. provisions of the existing, informal-adjudicatory rules under Subpart L insofar as they would apply to reactor operator licensing proceedings.
One utility found the NRC's Statement of-Consideration inadequate and urged renotice either justifying the amendments more clearly or proposing adoption of formal procedures for all operator license proceedings.
Two other commentors, a ser!or reactor operator and the J
law firm representing PROS, opposed the amendments as contrary to the due process rights of licensed reactor operators. One utility wholly endorsed the proposed amendments.
After considering all comments, the Commission is persuaded that with one exception the amendments should issue as proposed.
In response to the s
-comments, the Commission has explicitly extended to the initial or renewal applicant who is issued a notice of proposed denial or a notice of denial
--permission to include in his or her request for hear.ing a request that the presiding officer recommend authorization of other procedures for the proceeding.
Such a request must include a statement of the special factual circumstances or issues supporting other hearing procedures.
t At the outset, it is useful'to note some of the. highlights of the l
Within thirty days after a i
. Commission's -informal adjudicatory procedures.
presiding officer's entry of an order granting a request for a. hearing, NRC l
staff files'in the docket a hearing file consisting of the application, and
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1 any relevant NRC report and correspondence between the applicant and the NRC.
Thereafter, the parties are afforded an opportunity to submit written presentations of their arguments and supporting written evidence.
10 CFR 2.1233(a). These presentations are to be made under oath or affirmation.
4
M. In addition, the presiding officer is' empowered to submit written
_ uestions to the parties to be answered in writing, M., and to issue q
subpoenas for attendance and testimony at hearings and for production of documents or things.
Upon determining that it is
.necessary to create an adequate record for decision, the presiding officer may also allow or require oral presentations, including testimony by witnesses, under oath and stenographically recorded.
10 CFR 2.'1235(a)-(b).
The presiding. officer conducts examination of the witnesses and may allow the parties to propose questions for posing to the witnesses. B.
Finally, the presiding officer may recommend to the Commission that procedures other than the specified informal procedures be used in the proceeding.
A.
General Comments 1.
Formal Hearings Are Required For Licensees If Requested Two commenters opposed the proposed amendments on the ground that licensed operators are entitled to trial-type hearings under the Constitution.
The licensed senior reactor operator viewed the proposed amendments as both permitting the revocation of a license for any. reason or whim and eliminating the right to a formal hearing. The commenter apparently overlooked the specific standards in 10 CFR Part 55 under which licenses are issued, renewed,
. modified,-suspended or revoked.
The commenter also does not seem to appreciate that:
- 1) the proposed amendments provide for formal adjudication in proceedings that would involve revocation, suspension or modification of a license; and 2) Subpart L already authorizes a presiding officer's recommendation that the Commission approve other procedures in a particular proceeding otherwise conducted under Subpart L procedures.
5
o The law firm representing PROS argued that the informal procedures are
= insufficient for actions that' could deprive an operator of his or her property interest in the continued validity of the license and his or her liberty
, interest in pursuit of a career as reactor operator.
PROS would support the-amendments only if they were modified to make informal procedures available as an option to an operator in lieu of formal proceedings. Another commenter, NUMARC,-believed that the codification and use of informal hearing procedures for the grant, renewal or licensea-initiated amendment of a reactor operator license would provide fair, officient and effective adjudication.
Nonetheless, NUMARC suggested that it would be desirable for the NRC to apply Subpart G to proceedings concerning the denial of an initial or renewal application because of the -significance of such a denial for the operator.
The Commission believes that these commenters similarly fail to give sufficient consideration or weight to the specification of circumstances in which formal procedures will apply and to the authorization of the presiding officer to recommend other than informal procedures in appropriate cases.
Moreover, these comraenters do not scrutinize closely the type of affected 1.
individual' interests or the general types of inquiries in the adverse actions-at issue.
- A party's entitlement.to a hearing is determined by the balancing of l
three factors:
the private interest affected by official action; the. probable 1
L value of additional or different procedures; and the Government's interest, L
including the function involved and the fiscal and administrative burdens of additional or different procedural requirements.
Mathews v. Eldridoe, 424 U.S. 319, 335 (1976) ~After reviewing and weighing these factors, the Commission remains convinced that the informal adjudicatory procedures set 6
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forth in Subpart L are appropriate for the reactor operator licensing proceedings to be covered by this rule.
This conclusion follows from a-number of observations and findings, but in particular the following:
- 1) the nature of the interests at stake; 2) the Commission's provision of a meaningful hearing-at a meaningful time ; 3) the appropriateness of informal procedures for resolution of the typical inquiries in the proceedings to be held under j
Subpart L;' and 4) the opportunity to obtain other procedures when they are necessary for a fair resolution of critical factual issues.
The Commission recognizes that substantial personal interests may be affected by the decision to grant or deny an application for a reactor operator license.
However, the nature of the affected interest is limited by virtue of the fact that ruactor operator license applicants are subject to broad Commission powers to grant or deny, and operator licenses permit performance of the licensed functions only in a specific facility,10 CFR 55.53(b)-(c), where the licensee of'the facility has certified to the need for the position and requested examination of the applicant for a license.
10 CFR 55.31(a)(3)-(4). The interest at issue is also somewhat limited by the fact that reactor operator licenses expire six years after issuance with no guaranteed right to renewal.,
10 CFR 55.55. Moreover, the applicant-for initial issuance of an operator or senior operator license does not face.a deprivatien of a vested or existing position or status.
An individual seeking renewal of an existing license may feel that he or she has.been deprived of a vested or existing position or status, but there is no guaranteed right of renewal. Therefore it is not certain that protected interests are always or generally at stake in proceedings concerning the issuance or renewal of a Part 55 license.
However, the Commission will nonetheless assume for purposes of 7
further-discussion that they are.
The key question remains as to whether the Commission is providing less procedure than due process requires under the circumstances.
The Commission is providing a hearing.
And, it is clear that due process does not require full trial-type procedures in every such case.
"The fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a mer.ningful manner.'" Mathews v. Eldridae, 424 U.S. at 333 (quoting
.g Armstrona v. Manzo, %) U.S. 545, 552 (1965)). The Supreme Court has j
repeatedly emphasir.ed that "'[djue process,' unlike some legal rules, is not a technical conception with a fixed content unrelated ts time, place and circumstances." M. at 334.(quoting Cafeteria Workers v. McElrov, 367 U.S.
886, 895 (1961)).
Thus,' "'[ dice process is flexible and calls for such procedural protections as the particular situation demands.'" B. (quoting Morrissey v. Brewer, 408 U.S. 471, 482 (1972)).
i The nature-of the.' relevant inquiry is central to the evaluation of the fairness and reliability of the existing procedures and the probable value, if any,Lof additional safeguards.
B. at 343.
Arguing that the Commission should bolster initial and renewal applicants' access to formal adjudication, one commenter emphasized that the requirements for, a Part 55 license necessitate subjective evaluations on such issues as health, and administration of the written examination and operating test. -See Section 11-B-2-a.
The Commission does believe that the typical issues in reactor operator proceedings for the grant or renewal of licenses are likely to concern performance on a written examination or an operating test.
As set forth in Part 55, however, these examinations test knowledge, skills and abilities pertaining-to specific technical and scientific matters. Jag 10 CFR 8
7 L
55.41(b)', 55.43(b), 55.45, 55.57 and 55.59(a).
In addition, the Commission has issued standards for examination and grading of the tests. M NUREG-1021.2 While some parts of these examinations may be less amenable to
" objective"' evaluation than other parts, n, short answer as opposed to multiple choice questions, the subject matter still falls within the Commission's special expertise and judgment.
Even when substantial factual issues arise regarding performance on a question or problem concerning technical or scientific knowledge or judgment, oral trial-type presentation may not be required. M Kerr-ficGee Coro. (West Chicago Rare Earths Facility),
CLI-82-2, 15 NRC 232, 259-60 (1982), aff'd sub nom City of West Chicaoo v,
((RG, 701 F.2d 632 (7th Cir.1983), and cases cited therein.
Indeed, in such cases the right to cross-examination may serve little or no purpose, and result 'only in futility or delay.
M Buttrev v, United States, 690 F.2d 1170, 1182 (5th Cir. 1982). And, the possibility or existence of professional disagreement over an applicant's health, for example, does not suffice to create a specter of questionable credibility or veracity. M Mathews v. Eldridae, 424 U.S. at 344. Moreover, an applicant who is denied a license because of failure to pass the written examination or operating test, or both, may reapply two months after the date of denial, and make successive applications at other intervals thereafter.
These opportunities for reapplication in and of themselves may satisfy the purposes of a hearing if one is otherwise required. M Tyler v. Vickerv, 517 F.2d
' Copies of NUREGS ma) be purchased from the Superintendent of Documents, U.S. Government Printing Office, P.O. Box 37082, Washington, D.C. 20012-7082.
Copies are also available from the National Technical Information Service, 5285 Port Royal-Road, Springfield, VA 22161.
A copy is also available.for inspection and/or copying at the NRC Public Document Room, 2120 L Street, N.W., Washington, D.C.
l 9
1089 (5th Cir. 1975).- For the renewal applicant, the risk of error and the need for other procedures is also reduced by the fact that the Commission will-permit the licensed operator to take the NRC requalification examination three times before denying the renewal application on the basis of the licensee's failure of the NRC requalification examination.2 Recommendation and approval of other procedures ruch as cross-examination may occur, for example, where resolution of substantial factual-issues involving witness credibility, bias or veracity is essential to the
~ determination of a license renewal. However, the Commission expects that the.
broad powers of a presiding officer in Subpart L proceedings will permit fair, correct and efficient decision-making in typical reactor operator licensing
, proceedings.
In any event, the Commission need not provide formal adjudication for all hearings requested by initial or renewal applicants simply because some hypothetical cases not before-the. Commission arguably may require the use of formal procedures.
Sag FDIC v. Mallen, 486 U.S. 230, 247-48 (1988).
The Commission's conclusion that Subpart L procedures.are' sufficient for proceedings concerning the granting and renewal of reactor operator licenses is not altered by the emphasis of one commenter, the law firm representing five utilities, on the rarity of hearings concerning Part 55 licenses and the relatively smaller _ volume of Part 55 licenses as compared to material licen:::.
Despite the history of a small number of reactor operator licensing hearings, reduced cost and delay while maintaining fair _ procedures.should o
'NUREG 1021, Rev. 6, ES-605 (June 1,1990). /-Th; li;enses m;y be r ::'/ci free lice.ed Judeo efte, feiling the fi 3;,TC-ed,,,iniste ed, ewelif t::tica examin+44or, :nd ' ' " be = =-J ; _ 1;;;a;;d dutic: ;f t:r f;in; : r ecan_d MDr.ndminict p ed g,-
10
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- - remain important objectives for both the C'ommission and the parties.
fn
, addition, the cost of one or a group of formal hearings in reactor operttor licensing cases could in fact prove substantial.
In each formal proceeding, a three-member licensing board or an administrative law judge must be appointed, and with that would also generally follow the costs of such procedures as formal discovery, prefiled testimony and a trial-type hearing with oral-testimony of the witnesses and cross-examination.
For instance, real costs associated with formal, trial-type adjudications arise from neeffor court X
reporters, transcripts, rent for hearing facilities,3 and travel expenses for necessary agency personnel. Moreover, the commenter conceded that it is difficult to generalize from the figures, considering the fact that the Commission did issue 798 Part 55 licenses and processed 1750 renewals during 1987.
2.
Differences Between Challenges to Proposed Enforcement Action and Challenges -to the Denial of the Grant or Renewal of a License One commenting utility requested further justification of the Commission's decision to grant formal hearings in proceedings resulting from proposed enforcement action but informal hearings in proceedings concerning the denial of the issuance or renewal of a license.
It has been a long-standing Commission policy to provide the opportunity for formal adjudication regarding the Commission's enforcement. actions affecting licenses. This should not come as' a surprise in light of the severity and potential stigma of Commission-initiated action for revocation or suspension of a license, or a-3Pursuant to agency policy, the trial-level proceedings conducted in formal Subpart G adjudications are usually held near the applicant. or licensee involved, and this often requires renting a hotel conference room or similar facility.
11
l civil penalty,.as well as the propriety of formal procedures for adjudication of such underlying issues as a material false statement and willful violation of a rule or regulation.
jin 10 CFR 55.61. As noted above, the Commission does not; contemplate that the typical grounds of denial of an initial or renewal application will generally involve such issues.
B.
Comments Relating to Specific Provisions of Suboart L 1.
Proposed 6 2.1201--Scope of Sutnart The law firm representing PROS c'clared that it was not possible to discern the circumstances to which the proposed rule would and would not apply.
In particular, this commenter felt that proposed 5 2.1201(b) was extremely vague. Other commenters did not appear to have this difficulty.
The Commission sees no need for any change in the proposed amendments, but will elucidate briefly the application of the amendments.
Section 2.1201(a) clearly provides that the rules of Subpart L will govern procedures in an adjudication initiated by a request for a hearing in a proceeding for the grant, renewal, or licensee-initiated amendment of an operator or senior operator license. On the othe'r hand, the proposed amendment of f 2.1201(b) provides that the formal procedures of Subpart'G will govern an adjudication regarding an operator or senior operator license that arises from a request.
for hearing under Subpart B of 10 CFR Part 2 on an order to show cause, an -
order' for-modification of license, or -a civil penalty.
An order to show cause under Subpart B is the mechanism by which the Commission would generally act to revoke or suspend a license. Thus, the Commission contemplates that the formal procedures of Subpart G will govern proceedings to revoke or suspend an.
operator or senior operator license subject to Part 55.
The proposed 12 i.
1 sh
. amendment of.f 2.1201(b) also wo~uld make the formal procedures set forth ir..
Subpart G applicable to an adjudication initiated by a notice of hearing issued under 9'2.104, or a notice of proposed action under 6 2.105.
The t
Commission's construction of 56 2.104 and 2.105 is set forth in West Chicaao, 15 NRC at 244-46.
Application of these provisions to reactor operator-licensing under Part 55 would arise if the Commission determined that the public interest required a formal hearing on a particular application for, or amendment to, a reactor operator or senior operator license. Of course, this rulemaking record indicates that the Commission does not expect that it will be making the requisite detenainations under SS 2.104 and 2.105 with regard to reactor operator licensing proceedings.
2.
Existing s 2.1205--Request for a Hearing; Petition for Leave to Intervene a.
Reauests for Formal Ad.iudication.
One utility and the law firm representing.five utilities urged that the Commission add a provision that explicitly permits an operator to request formal adjudication upon a showing of good cause.or.special circumstances.
The latter commenter recommended
, specifically an amendment of existing 5 2.1205(b) so as to provide explicitly.
to the Part 55 license applicant "who is issued a notice of proposed denial-or La notice of denial" the opportunity to include in his request for hearing a
. specific' request for formal adjudication.
The amendment would require that the applicant include with the request an explanation of the circumstances requiring such formal procedures as discovery and cross-examination of.
witnesses.
This commenter conceded that the procedures in Subpart L are 4
generally appropriate for hearings on Part 55 licenses, but analyzed the balancing factors for determining administrative due process as warranting 13
L f
trial-type proceedings in many cases, particularly for renewal applicants.
The Commission has responded to many of this commenter's views on due process in Section II-A-1, above.. While the Commission differs with some of the commenter's views on the circumstances which are likely to warrant use of other procedures, explicit authorization of an early vehicle for the
' applicant's identification of case-specific needs for other procedures is desirable. Thus, the final rule amends 5 2.1205(b) so as to authorize the applicant to request, within the request for a hearing, "that the presiding
.fficer recommend to the Commission that procedures other than those authorized under this subpart be used in the proceeding, provided that the applicant identifies the special factual circumstances or issues which support the use of other procedures."
Under 5 2.1209, the presiding officer already "has the duty to conduct a fair and ' impartial hearing according to law" and "has all power necessary to these ends,. including the power to.... [d]ispose of procedural requests or similar matters." And, nothing-in Subpart L expressly prohibits the applicant i
who is subject.to Subpart L procedurer from asking within the request for hearing, or separately, that the rcesiding officer exercise the power to
"[r]ecommend to the Commission that procedures other than those authorized under (Subpart L] be used in [the] proceeding." Sag 10 CFR 2.1209(k).
Nonetheless, explicit. recognition of an opportunity under Subpart L for applicants to request other procedures within their request for hearing clarifies the procedural scheme and thereby enhances the applicant's access to other procedures where appropriate.
The Commission is not altering, however, the necessity of the Commission's authorization of the use of other procedures.
Thus, the new provision only authorizes the applicant to request 14
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' that the presiding. officer make the necessary recommendation to the Commission,
- b. Standino-for Intervention.
One utility urged the specification of a/
4.
maad4W strict test of j4d anding for intervention'in operator
/
license proceedings.
Specifically,' the commenter suggested that%...MR #N tkJAb
...i r g
g pev$j be required to demonstrate that it will present evidence that would N
materially alter the outcome of the NRC hearing decision.
NUMARC also recommended a clarification that the threshold of standing for inter ~!ention in reactor operator licensing adjudications, under either Subpart L or Subpart G, will: be very high.
The preb'er i tF rew.. ins suu. ;d:
~+"+4^=
or e
.T.et:r i:1 elte, ot ;w.. Of th; vutc; : c# tF.; givueeuing is Enat it wvuid gle;;
n c::tr;::'y h4? burd;r. ;r. the petitiener fe" interventi:L The Commission shares the concern that-intervention not be indiscriminate, such as for the purpose of creating _ unnecessary delay.
However, the Commission believes that the existing procedures and judicial standards for standing will provide fair and sufficient scrutiny of petitions for intervention. Egg 10 CFR 2.1205, t
,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 the petitioner.
10 CFR 2.1205(d),(j).
And, the presiding officer must determine that the specified areas of concern are germane to the subject matter of the proceeding, and that the petition is timely and meets the 1
.CetAlpW judicial standards for standing.
10 CFR 2.1205(g), (j)(3).gJntervention is, 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 L
operator's qualifications for the position.
In promulgating Subpart L, the Commission indicated that the " distance 15
{'
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m m
,1 standard" established by NR., case law for s'tanding in nucle r reactor licensing proceedings, whereby persons residing within fifty miles of a 4
facility generally are considered to have standing, was not applicable to material licensing _ pro eedings. (54 FR at 8272].. The Commission will.take this opportunity to clarify '. hat the " distance standard" is not automatically applicable 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 i 2.1205(g).
c.
ADoeal of the Denial of a Reauest for Hearino.
Section 2.1205(n) of 4,
Sub'part L currently permits appeal of an order denyina a request for a hearing
' t (or petition for intervention) in its entirety within tet days of the service of the order.
Th;t.ppeai curr m i, lir "ith um At;ai; L f;ty and L wn.ing App;;l L.id.
4v urn.c.1455.
The law firm representing five utilities
- requested that'the Commission amend existing i 2.1205(n) so as_to permit an p
immediate appeal of a presiding officer's denial of a request for a formal hearing. As discussed below, this_ commenter also recommended that the ah Commission give the presiding officer the power to grant a request for 2 ethe 4
l p::;;d:9.
The Commission declines to adopt this recommendation fort r
N existing procedure for an immediate appeal-is premised
)
,t reasons.
upon the denial of any hearing as' a final bar_ to adjudication.
This is far aY f k M4a
- different circumstance for appeal than a mere denial o procedures for a L
hearing that is in fact granted.
Indeed, completion of the informal L
adjudication may resolve the requestor's concerns.
S::nd, f:r re:::n; : tat; 1 b:M:' the Cc~4"i" 5:: ch:::r to.etain the tutbed ty t Ord r pr;::t r;; -
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s dditi:n t; th;;;
n L bpert L for pre.u Jinua vthcrai;; g;
.nuJ Ly L
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...aily, the Comission sees no reason to carve out for reactor op rator hearing questions rn a special exception to its existing proceduresjef appeal an review.
p 3.
Existing i 2.1209--Presiding Officer's Powers The law firm representing five utilities recommended that the Commission amend existing i 2.1209(k) so as to authorize the residing officer in a Part b ubt. $/hw AAf W.
55 hearing to grant a request f:r W - edjudis.ti;r Cu rently, the j
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 proceeding.
The recommended change might slightly expedite decisionmaking on a request for other adjudication.
However, the Commission 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 Commission serves the interests of uniformity of decisionmaking, full consideration of the potential commitment of costs and resources, and administrative finality.
This commenter also recommended amendment of i 2.1209 so as to authorize the presiding officer to entertain a specific request for a formal adjudication or for certain formal procedures in the course of the hearing if the need for such procedures becomes apparent.
A presiding officer, however, already has authority to entertain such requests during the course of an informal hearing.
Nothing in Subpart L prohibits any party from presenting such a motion to the presiding officer during an informal proceeding.
P1 10 CFR 2. 1237. Moreover, the Camission need not and probably could not specify 1/
all or even most types of procedural motions and supporting circumstances that could be presented during the course of an informal hearing.
4.
Existing i 2.1211--Nonparty Participation NUMARC expressed concern about the application of f 2.1211 of Subpart L, which ;n ?vides for participation in a hearing by a person not admitted as a party, including a representative of an interested State, county, municipality or agency thereof.
Section 2.715 of Subpart G contains similar provisions, i
The commenter recommends that the Commission clarify that such nonparties should not be able to use individual operator license proceedings to address an issue other than an issue that is the subject of the hearing.
The.
Commission notes that i 2.1211 already states that "[t]he presiding ofjer mn permit a person who is not a party to make a limited appearance in order to p
state his or her views on the issues."
10 CFR 2.1211(a) (emphasis added).
The rule also requires that the request for governmental participation " state with reasonable specificity the requestor's areas of concern about the licensing activity that is the subiect matter of the oroceedina."
10 CFR l
2.1211(b) (emphasis added). Although the nonparty participant may not be required to take a position on the issues, the views to be expressed must relate to the issues that are properly subject to challenge in such a proceeding. As with the consideration of a petition for intervention, the presiding officer may determine that the views to be expressed are not germane to the proceeding and therefore may deny the request for nonparty participation.
For these reasons, the Commission sees no need for other I.
clarification of the limits on nonparty participation.
Environmental Impact:
Categorical Exclusion The NRC has determined that this final rule is the type of action l
l 18 l
1' l
described in categorical exclusion 10 CFR 51.22(c)(1). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this fin'al rule.
Paperwork Reduction Review This final rule contains no information collection requirements and therefore is not subject to the requirements of the Paperwork Reduction Act o' 1980 (44 U.S.C. 3501 et seq.).
Regulatory Analysis The Atomic Energy Act affords interested persons the right to a hearing regarding a reactor operator licensing proceeding. As the Commission previously indicated in its decision in West Chicaco,15 NRC at 241, the use of informal procedures generally involves le'ss cost and delay for the parties and the Commission than the use of formal, trial-type procedures, the principal other procedural alternative.
Also, procedures must be in place to allow for the orderly conduct of those adjudications. Codifying the informal hearing procedures for operator licensing proceedings is preferable to the present practice of establishing the procedures to be followed on a case-by-case basis.
By codifying the procedures, the Commission will avoid the expenditure of time and resources necessary to prepare the individual orders that previously have been used to designate those procedures.
This final rule is the preferred alternative and the cost entailed in its promulgation and l
application is necessary and appropriate.
The foregoing discussion constitutes the regulatory analysis for this final rule.
l Regulatory Flexibility Certification 1
The NRC hereby certifies that this final rule will not have a significant economic impact upon a substantial number of small entities. Many operator 19
license applicants or operator licensees fall within the definition of small businesses found in section 34 of the Small Business Act, 15 U.S.C. 632, or the Small Business Size Standards set out in regulations issued by the Small Business Administration at 13 CFR Part 121, or the NRC's size standards published December 9, 1985 (50 FR 50241).
The final rule should reduce the litigation cost burden upon applicants or licensees because of the informal nature of the hearing, although submission of filings and documentary information detailing contested legal and factual issues is still required.
Cost reduction in comparison to the cost of participating in a formal adjudicatory hearing can be anticipated, although it cannot be estimated with certainty whether that reduction as a whole will be significant.
It is clear that use of informal hearing procedures should not increase the burdens of a hearing upon an applicant or licensee.
Backfit Analysis Because these amendments do not involve any provisions that would impose backfits as defined in 10 CFR 50.109(a)(1), the NRC has determined that the backfit rule,10 CFR 50.109, does not apply to this final rule and, therefore, that a backfit analysis is not required.
List of Subjects in 10 CFR Part 2 Administrative practice and procedure, Antitrust, Byproduct material, Classified information, Environmental protection, Nuclear Materials, Nuclear power plants and reactors, Penalty, Sex discrimination, Source material, Special nuclear material, Waste treatment and disposal.
For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and 5 U.S.C.
20
l
$52 and 553, the NRC is adopting the following amendments to 10 CFR Part 2:
Part 2 -- RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS 1.
The authority citation for Part 2 continues to read as follows:
AUTHORITY: Secs. 161, 181, 68 Stat. 948, 953, as amended (42 U.S.C. 2201, 2231); sec. 191, as amended, Pub. L.87-615, 76 Stat.
409 (42 U.S.C. 2241), sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); 5 U.S.C. Sb2.
Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104, 105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, as amended (42 U.S.C. 2073, 2092, 2093, 2111, 2133, 21234, 2135); sec. 102, Pub. L.91-190, 83 Stat. 853, as amended (42 U.S.C. 4332); sec. 301, 88 Stat. 1248 (42 U.S.C. 5871).
Sections 2.102, 2.103, 2.104, 2.105, 2.721 also issued unier secs. 102, 103, 104, 105, 183, 189 68 Stat. 936, 937, 938, 954, 955, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2233, 2239).
M tion 2.105 also issued under Pub. L.97-415, 96 Stat. 2073 (42 L S.C. 2239).
Sections 2.200-2.206 also issued under secs. 186, 234, 68 Stat. 955, 83 Stat. 444, as amended 42 U.S.C. 2236, 2282); sec. 206. 88 Stat. 1246 (42 U.S.C. 5846).
Sections 2.600-2.606 also issued under sec. 102, Pub. L.91-190, 83 Stat. 853, as amended (42 U.S.C. 4332).
Sections 2.700a, 2.719 also issued under 5 U.S.C. 554.
Sections 2.754, 2.760, 2.770, 2.780 also issued under 5 U.S.C. 557.
Section 2.764 and Table 1A of Appendix C also issued under secs. 135, 141, Pub. L.97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161).
Section 2.790 also issued under sec. 103, 68 Stat. 936, as amended (42 U.S.C. 2133) and 5 U.S.C. 552. Sections 2.800 and 2.808 also issued under 5 U.S.C. 553.
Section 2.809 also issued under 5 U.S.C. 553 and sec.
29, Pub. L.85-256, 71 Stat. 579, as amended (42 U.S.C. 2039).
Subpart K also issued under sec.189, 68 Stat. 955 (42 U.S.C.
2239); sec. 134, Pub. L.97-425, 96 Stat. 2230 (42 U.S.C. 10154).
Subpart L also issued under sec. 189, 68 Stat. 955 (42 U.S.C.
2239). Appendix A also issued under sec. 6, Pub. L.91-560, 84 Stat. 1473 (42 U.S.C. 2135).
Appendix B also issued under_sec. 10, Pub. L.99-240, 99 Stat. 1842 (42 U.S.C. 2021b, et seq.).
2.
The heading of Subpart L of Part 2 is revised to read as follows:
Subpart L - Informal Hearing Procedures for Adjudications in Materials and Operator Licensing Proceedings 3.
Section 2.1201 is revised to read as follows:
2.1201 Scope of subpart.
(a) The general rules of this subpart govern procedure in any adjudication initiated by a request for a hearing in a proceeding for --
21
(1) The grant, transfer, renewal, or licensee-initiated amendment of a materials license subject to Parts 30, 32, through 35, 39, 40, or 70 of this chapter; or (2) The grant, renewal, or licensee-initiated amendment of an operator or senior operator license subject to Part 55 of this chapter.
(b) Any adjudication regarding a materials license subject to Parts 30, 32 through 35, 39, 40, or 70, or an operator or senior operator license subject to Part 55 that is initiated by a notice of hearing issued under i 2.104, a notice of proposed action under 2.105, or a request for hearing under Subpart B of 10 CFR Part 2 on an order to show cause, an order for modification of license, or a civil penalty, is to be conducted in accordance with the procedures set forth in Subpart G to 10 CFR Part 2.
4.
In i 2.1205, paragraph (b) is revised to read as follows:
(b) An applicant for a license, a license amendment, a license transfer, or a license renewal who is issued a notice of proposed denial or a notice of denial and who desires a hearing shall file the request for the hearing within the time specified in i 2.103 in all cases.
An applicant may include in the request for hearing a request that the presiding officer recommend to the 22 l
~
Commission that procedures other than those authorized under this subpart be used in the proceeding, provided that the applicant identifies the special factual circumstances or issues which support the use of other procedures.
Dated at Rockville, MD, this day of
_, 1990.
For the Nuclear Regulatory Commission.
Samuel J. Chilk Secretary of the Commission 23
___________s
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fDIS AUGUST 1, 1990 C O R R E C T I O 11 11 O T I C E TO ALL HOLDERS OF SECY-90-255 - FIllAL RULE 011 I!1 FORMAL PROCEDURES FOR REACTOR OPERATOR A11D SE1110R REACTOR OPERATOR LICE!1SI!1G ADJUDICATIO!1S
( C O M M I S S I O11 A C T I O!! ITEM)
PLEASE 110TE THE ATTACHED CORRECTIOllS TO SECY-90-255.
ATTACHMEllTS:
AS STATED THE SECRETARIAT
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( 0 July 31. 1990 SECY-90-255 ERRATA Attached are f our pages with correctione, requested by OGC, for the proposed Federal Register notice of the final rule on informal procedures f or reactor operator operator licensing adjudications.
Please replace existing pages 10, 11, 16 and 17 with the attached, corrected pages 10. 11, 16 and 17.
The corrections are as f oll ows:
1.
Pege 10.
The f ollowing sentence is deleted f rom
-footnote 2:
The licensee may be removed from licensed duties after falling the first NRC-administered requalification examination and will be removed f rom licensed duties af ter i aili r. ; a second NRC-admi ni stered exami nati on.
Upon a rereading of t he document, the Operator Licensing Branch steff notified OOC that thi s statement was not completely accurate and should be corrected or deleted.
2.
Page 11, line D.
The word "need" has been changed to "needs".
3.
Page 16, lines 18-19.
The word "other" has been deleted and "more f ormal " has been inserted in its place.
4.
Page 17, lines 3, 9-10 and 13-14.
The word "other" has been deleted and "more f ormal" has been inserted in its place.
1089 (5th Cir. 1975).
For the renewal applicant, the risk of error and the need for other procedures is also reduced by the fact that the Commission will permit the licensed operator to take the NRC requalification examination three times before denying the renewal application on the basis of the licensee's failure of the NRC requalification examination.2 Recommendation and approval of other procedures such as cross-
^
examination may occur, for example, where resolution of substantial factual issues involving witness credibility, bias or veracity is essential to the determination of a license renewal.
However, the Commission expects that the broad powers of a presiding officer in Subpart L proceedings will permit fair,
. correct and efficient decision-making in typical reactor operator licensing i
proceedings, in any event, the Commission need not provide formal l
adjudication for all hearings requested by initial or renewal applicants simply because_ some hypothetical cases not before the Commission arguably may require the use of formal procedures. Sag FDic v. Hallen, 486 U.S. 230, 247-1 48(1988).
The Commission's conclusion that Subpart L procedures are sufficient for proceedings concerning the granting and renewal of reactor operator licenses I
is not altered by the eniphasis of one commenter, the law firm representing five utilities, on the rarity of hearings concerning Part 55 licenses and the 2
relatively smaller volume of Part 55 licenses as compared to material licenses. Despite the history of a small number of reactor operator licensing hearings, reduced cost and delay while maintaining fair procedures should
[
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2NUREG 1021, Rev. 6, ES-605 (June 1, 1990).
10
' re:ain important objectives for both the Commission and the parties.
In C.
addition, the cost of one or a group of formal hearings in reactor operator licensing cases could in fact prove substantial.
In each formal proceeding, a three-member licensing board or an administrative law judge must be appointed, and with that would also generally follow the costs of such procedures as formal discovery, prefiled testimony and a trial-type hearing with oral testimony of the witnesses and cross-examination.
For instance, real costs
' associated with formal, trial-type adjudications arise from needs for court g
reporters, transcripts, rent for hearing facilities,' and travel expenses for necessary agency personnel. Moreover, the commenter conceded that it is difficult to generalize'from the figures, considering the fact that the Commission did issue 798 Part 55 licenses and processed 1750 renewals during
- 1987, t
2.
Differences Between Challenges to Proposed Enforcement Action and Challenges to the Denial of the Grant or Renewal of a License 3
One commenting utility requested further justification of the Commission's decision to grant formal hearings in proceedings resulting from proposed enforcement action but informal hearings in proceedings concerning the denial of the issuance or renewal of a license.
It has been a long-standing Commission policy to provide the opportunity for formal adjudication
- regarding the Commission's enforcement actions affecting licenses. This should not come as.a surprise in light of the severity and potential' stigma of Commission-initiated action for revocation or suspension of a license, or a I
3Pursuant to agency policy, the trial-level proceedings conducted in formal Subpart G adjudications are usually held near the applicant or
' licensee involved, and this often requires renting a hotel conference room or similar facility.-
11 L
L o
O standardo established by NRC case law for standing in nuclear reactor d
licensing proceedings, whereby persons residing within fifty miles of a o
facility generally are considered to have standing, was not applicable to materici licensing proceedings. [54 FR at 8272).
The Commission will take this opportunity to clarify that the " distance standard" is not automatically applicable 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 2.1205(g).
c.
Aeneal of the Denial of a Reauest for Hearina.
Section 2.1205(n) of 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 the order.
That appeal currently lies with the Atomic Safety and Licensing Appeal Board.
10 CFR 2.1255. The law firm representing five utilities requested that the Commission amend existing i 2.1205(n) so as to permit an.
]
immediate appeal of a presiding officer's d--ial of a request for a formal hearing. As discussed below, this commenter also recommended that the Commission give the presiding officer the power to grant a request for a more formal proceeding. The Commission declines to adopt this recommendation for several reasons.
First, tlie existing procedure for an immediate appeal is premised upon the denial of any hearing as a final bar to adjudication. This is a far different circumstance for appeal than a mere denial of other procedures-for a hearing that is in fact granted.
Indeed, completion of the informal adjudication may resolve the requestor's concerns.
Second, for-reasons stated below, the Commission has chosen to retain the authority to order procedures in addition to those in Subpart L for proceedings otherwise 16
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governed by Subpart L.
Thus, the Commission declines to complicate the I.
proposed decisional scheme by involvement of the Appeal Board in immediate consideration of whether a more formal proceeding should be conducted.
Finally, the Commission sees no reason to carve out for reactor operator j
hearing questions a special exception to its existing procedures for appeal and review.
3.
Existing 5 2.1209--Presiding Officer's Powers The law firm representing five utilities recommended that the Commission amend existing 6 2.1209(k) so as to authorize the presiding officer in a Part L
55 hearing to grant a request for more formal adjudication.
Currently, the presiding officer's power under 6 2.1209(k) is limited to a recommendation that the Commission authorize the use of other procedures for a particular proceeding.
The recommended change might slightly expedite decisionmaking on y
a request for more formal adjudication. However, the Commission believes that y
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
^
Commission serves the interests of uniformity of decisionmaking, full consideration of the potential commitment of costs and resources, and administrative finality.
This commenter also recommended amendment of 5 2.1209 so as to authorize the presiding officer to entertain a specific request for a formal adjudication or for certain formal procedures in the course of the hearing if the need for such procedures becomes apparent. A presiding officer, however,.
already has authority to entertain such requests during the course of an informal hearing.
Nothing in Subpart L prohibits any party from presenting such~ 'a motion to the presiding officer during an informal proceeding. Egg 10 CFR 2. 1237. Moreover, the Commission need not and probably could not specify 17
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RULEMAKING ISSUE SECY-90-2ss July 19, 1990 The Commis(sionersAffirmation)
IpI:
II.QB:
William C. Parler General Counsel Subiect:
FINAL RULE ON INFORMAL PROCEDURES FOR REACTOR OPERATOR AND SENIOR REACTOR OPERATOR LICENSING ADJUDICATIONS Purnose:
To request approval of a final rule providing for the use of informal adjudicatory procedures in nonenforcement operator licensing proceedings, including express permission for an applicant to include within the request for a hearing a request that the presiding officer recommend to the Commission that procedures other than those specified in Subpart L be used in the proceeding.
Backaround:
In February, 1989, the Commission adopted a final rule providing for the uce of informal adjudicatory procedures in materials licensing cases.
10 C.F.R. Part 2, Subpart L (54 Fed. Reg. 8269, Feb. 23, 1989).
Such procedures are also being used on a case-by-case basis in dealing with requests from operators and senior operators for hearings relating to staff actions on their 10 C.F.R. Part 55 licenses.
On April 26, 1989 (54 Fed. Reg. 17961), the NRC published in the Federal Register proposed amendmer.ts of the Rules of Practica in Subpart L that would bring nonenforcement reactor operator licensing proceedings within the scope of Subpart L.
-The Commission received seven comments on the proposed rule.
Of these comments, two opposed the rule and three favored it subject to modifications.
One commenter requested either greater justification of'the use of informal
Contact:
NOTE:
TO BE MADE PUBLICLY AVAILABLE WHEN R. K. Davis THE FINAL SRM IS MADE AVAILABLE x21606 I
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The Commissioners 2
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adjudicatory procedures or the adoption of formal adjudicatory procedures for all reactor operator licensing hearings, one commenter was fully i
1 satisfied with the rule as drafted.
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The attached Federal Register notice contains a summary of the comments received and the Commission responses to those comments.
oGC obtained comments on a draft of the Federal Register notice from the EDO and the Chairmen of the Licensing Board Panel and Appr.al Panel. The changes in the notice recommended by these' officials were adopted.
The public and internal comments were important in deciding on the one recommended modification to the rule, j
i specifically, one utility and a law. firm l
representing five utilities recommended that the rule expressly permit an applicant to request more formal procedures on the basis of the applicant's identification of good cause or special circumstances.
These and other commenters felt that the potential deprivation of an applicant's means of livelihood and ability to pursue or practice the applicant's chosen occupation is so significant to the applicant, particularly the renewal applicant, that access to more formal j
procedures for resolution of adjudicatory factual i
l issues should be clarified and bolstered.
i Nothing in the existing Subpart L would prohibit the applicant for a materials license or reactor operator license from requesting the authorization-of more formal procedures.
The presiding officer already has "the duty to conduct a fair and impartial hearing accor$1ng to law" and has "all power necessary to thoss ends, including the power to... (djispose of procedural requests or similar i
matters."
In particular, the j
presiding officer has :o power to recommend i
to the Commission that procedures other than those
^
authorized under Subpart L be used in the proceeding.
10 C.F.L. 2.1209(k).
The Chairman of ASLBP agreed with the public commenters that the rule should be amended so as to expressly permit a party's request for the J
U
Tho Commicciencro 3
presiding officer's recommendation under S 2.1209(k).
He commented that explicit recognition of an early opportunity for an applicant to make such a request with adequate factual support would clarify the procedural scheme and encourage early identification of facts potentially triggering the need for more formal procedures.
We believe making the rule explicit in this regard is worthwhile.
Accordingly, the final rule amends S 2.1205(b) so as to authorize the applicant to request, within the request for a hearing, "that the presiding officer recommend to the Commission that procedures other than those authorized under L
this subpart be used in the proceeding, provided L.
that the. applicant identifies the special factual circumstances or issues which support the use of other procedures."
This clarification will permit such requests by any applicant requesting a hearing under Subpart L, whether the application is for a materials license or reactor operator license.
L The Chairman of ASLBP also recommended reconsideration of whether Subpart L,.as it will apply to reactor operator licensing, should L
eliminate the-involvement of third parties as L
intervenors, nonparty participants or interested states.
It is true that standing to intervene in an operator licensing proceeding will involve l
factors that differ from the typical reactor-licensing case.
See Sections II-B-2-b and II-B-4 at 15-16, 18-19.
However, the legal requirement L
in'Section 189a of the Atomic Energy Act to admit L
interested persons as parties applies to operator i
licensing proceedings.
For this reason, OGC does not believe that it is wise to revise the final rule so as to eliminate the possibility of any third-party involvement.
OGC is confident that the rule will provide the process that is due.
However, the question of general authorization of the use of formal adjudicatory procedures in hearings on the denial u
of the-issuance or renewal of a Part 55 license L
could still be addressed by the commission as a l
The Commissioners 4
- i policy issue given the very limited number of requests for a hearing that have been received in the past.
OGC notes that regulations of the National Transportation Safety Board direct the use of formal adjudicatory procedures for-proceedings concerning the denial of the issuance or renewal of an airman's certificate, despite the absence of a statutory requirement for a formal, "on-the-record" hearing.
Coordination:
The Executive Director for Operations has reviewed this paper and concurs with it.
As noted above, comments were also obtained from the Chairman of ASLBP and the Chairman of ASLAB.
Recommendation:
That the Commission:
1.
Anorove for publication in the Federal Register.the final rule, attached to this paper, on informal hearing procedures fer euclear reactor operat'or licensing adjudications.
2.
Certify that these amendments will not have any significant economic impact on a substantial number of small entities.
This certification is necessary in order to satisfy the requirements of the Regulatory Flexibility Act, 5 U.S.C. 605(a).
3.
Note:
a.
The NRC has determined that this final rule falls-within the scope of the actions described in categorical exclusion 10 CFR 51.22(d).
Therefore, either an environmental impact statement nor an environmental assessment has been prepared for this rule.
I b.
As amended, the final rule does not
?
contain any information collection r
requirements that would be subject to the requirements of the Paperwork Reduction Act of 1980, 44 U.S.C.
- 3501, u
et, seq.
l l
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The Commissioners S
t l
l c.
The NRC has determined that the backfit rule, 10 CFR 50.109, does not apply to this final rule and, therefore, that a backfit analysis is not required for this final rule because these amendments do not involve any provisions which would impose backfits as defined in 10 CFR 50.109(a)(1).
d.
The Senate Committee on Environment and i
Public Works, the House committee on Interior and Insular Affairs, and the House Committee on Energy and Commerce will be informed of the Commission's action concerning this final rule.
e.
The Chief Counsel.for Advocacy of the Small Business Administration will be
. informed of the certification and reason for it as required by the Regulatory Flexibility Act.
f.
Copies of the final rule will be distributed to affected licensees and other interested parties.
L.
/
iam
. Par e General Counsel
Attachment:
Federal Register Notice containing Final Rule on Informal Procedures for Reactor _ Operator and Senior Reactor Operater Licensing Adjudications
V<. 14 t g',
'...g i e i
a rt s 6
2*,. n Commissioners' comments or consent should be provided directly tc the Office of the Secretary by COB Friday, August 3, 1990.
Commission' Staff Office comments, if~any, should be submitted to-the Commissioners NLT Friday, July 27, 1990, with an infor-l mation copy to the; Office of the Secretary.
If the paper is of n
such a nature that it requires additional time for analytical review and. comment, the Commissioners and the Secretariat-should be. apprised of when comments may be expected.
This paper,is tentatively schedul^^'for affi.mation at an Open-Meeting during the Week of August 1990.- Please refer to the t
a appropriate-Weekly Commission Sche;olo, when published, for a
. specific date and time.
- DISTRIBUTION:
Commissioncrs OGC g
- LSS-
. GPA REGIONAL OFFICES
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ASLBP ASLAP-i
-SECY l
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NUCLEAR REGULATORY COMMISSION 10 CFR Part 2 RIN 3150-AD17 Informal Hearing Procedures for Nuclear Reactor Operator Licensing Adjudications AGENCY:
Nuclear Regulatory Commission ACTION:
Final ~ rule.
SUMMARY
The Nuclear Regulatory Commission (NRC) is amending its regulations to provide. rules of procedure for the conduct of informal adjudicatory hearings in nuclear reactor operator licensing proceedings.
The Atomic Energy Act of 1954 requires that the NRC, in any proceeding for the granting, suspending, revoking or amending of any license afford an interested person, upon request,'a " hearing," This final rule would include reactor operator licensing proceedings under the. informal hearing procedures already established for materials licensing proceedings.
EFFECTIVE DATE:. (Insert the date of publication in the Federal-Register]
FOR FURTHER INFORMATION CONTACT: ' Roger Davis, Senior Attorney, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555, Telephone (301) 492-1600.
l.
SUPPLEMENTARY INFORMATION:
I
-1.
Backaround l
On April 26, 1989 (54 FR 17961-17962), the Nuclear Regulatory Commission published in the Federal Register proposed amendments to its Rules of Practice at 10 CFR Part 2.
The amendments make the informal adjudicatory procedures set forth in 10 CFR Part 2, Subpf rt L, applicable in proceedings i
for the grant, renewal or licensee-initiated amendment of a reactor operator or senior reactor operator license.
Hot?ver, the amendments provide for the use of the formal adjudicatory procedures set forth in 10 C.F.R. Part 2, Subpart G, in any reactor operator licensing proceeding that is initiated by a notice of hearing under i 2.104, a notice of proposed action under i 2.105, or a request for hearing under Subpart B of 10 CFR Part 2 on an order to show cause, an order for modification of license or a civil penalty.
On July 3, 1989, the NRC extended the date for submission of comments on the proposed amendments to August 10, 1989 (54 FR 28822).
Section 189a of the Atomic Energy Act of 1954 (AEA) (42 U.S.C. 2239(a))
provides that in any proceeding for the granting, suspending, revoking, or amending of any license, the NRC shall grant a hearing upon t'ie request of any person whose interest may be affected by the proceeding.
Among the licenses issued by the NRC are those for stors and senior (perators of nuclear reactors (AEA Section 107, 42 U.S.-
137; 10 CFR Part !5).
The Commission's rules of practice generally provide for two types of hearing procedures for licensing proceedings -- formal and informal. Under 10 CFR Part 2, Subpart G, those requesting a hearing with respect to a reactor licensing action or any agency enforcement activity affecting a license are generally provided a formal, trial-type hearing conducted in accordance with the provisions of the Administrative Procedure Act, 5 U.S.C.
554-557.-and'10 CFR Part 2, Subpart G.
On the other hand, a request for a 1
L hearing regarding an NRC materials licensing action generally entitles an-interested person to an informal, legislative-type hearing in accordance with 10 CFR Part 2, Subpart L.
L NRC regulations currently do not specify the type of hearing to be 2
i
l 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.
Lg., David W. Held (Senior Operator License for Beaver Valley Nuclear Pr tion, Unit 1), Docket No. 55-60402
~
(Comm. Aug. 7, 1987).
In the wake of :. C s adoption of Subpart L (54 FR 8269),-the Commission decided that the Commissions rules should reflect the practice followed in the individual orders.
II.
Comments and Commission Responses 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 Professional. Reactor Operator Society (PROS). All comments are available for inspection and copying in the agency's Public Document Room, 2120 L
L Street, N.W. [ Lower Level), Washington, D.C.
Y One utility and a law firm representing five utilities expressed general l"
support for specification of the informal adjudicatory procedures that will apply in reactor operator license proceedings, but deemed it necessary or desirable that the amendments explicitly grant applicants and licensees access ~to formal adjudication upon a showing of good cause or special circumstances.
NUMARC affirmed the rrtionale for the proposed amendments, but nonetheless deemed desirable the application of Subpart G to hearings 3
i I
concerning the denial of an initial or renewal application.
These commenters also suggested certain changes in provisions of the existing, informal adjudicatory rules under Subpart L insofar as they would apply to reactor operator licensing proceedings.
One utility found the NRC's Statement of Consideration inadequate and urged renotice cither justifying the amendments more clearly or proposing adoption of formal procedures for all operator license proceedings.
Two other commentors, a senior reactor operator and the law firm representing PROS, opposed the amendments as contrary to the due process rights of licensed reactor operators. One utility wholly endorsed the proposed amendments.
After considering all comments, the Commission is persuaded that with one exception the amendments should issue as proposed.
In response to the comments, the Commission has explicitly extended to the initial or renewal applicant who is issued a notice of proposed denial or a notice of denial permission to include in his or her request for hearing a request that the presiding officer recommend authorization of other procedures for the proceeding.
Such a request must include a statement of the special factual circumstances or issues supporting other hearing procedures, i
At the outset, it is useful to note some of the highlights of the Commission's informal adjudicatory procedures. Within thirty days after a
. presiding officer's entry of an order granting a request for a hearing, NRC staff files in the docket a hearing file consisting.of the application, and-any relevant NRC report and correspondence between the' applicant and the NRC.
Thereafter, the parties are afforded'an opportunity to' submit written presentations of their arguments and supporting written evidence.
10 CFR2.1233(a). These presentations are to be made under oath or affirmation.
4
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Id. In addition, the presiding officer is empowered to submit written questions to the parties-to be answered in writing, id., and to issue subpoenas for attendance and testimony at hearings and for production of documents or things.
Upon determining that it is necessary to create an adequate record for decision, the presiding officer may also allow or require oral presentations, including testimony by witnesses, under oath and stenographically recorded.
10 CFR 2.1235(a)-(b).
The presiding officer conducts examination of the witnesses and may allow the parties to propose questions for posing to the witnesses. Id.
Finally, the presiding officer may recommend to the Commission that procedures other than the specified informal procedures be used in the proceeding.
A.
General Comments 1.
Formal Hearings Are Required For Licensees If Requested Two commenters opposed the proposed amendments on the ground that licensed operators are entitled to trial-type hearings under the Constitution.
The licensed senior reactor operator viewed the proposed amendments as both permitting the revocation of a license for any reason or whim and eliminating the'right. to a formal hearing. The commenter apparently overlooked the specific standards in 10 CFR Part 55 under which licenses are i:suert, renewed, modified, suspended or revoked. The commenter also does not seem to L
appreciate that:
- 1) the proposed amendments provide for formal adjudication-l in proceedings that would involve revocation, suspension or modification of a license; and 2) Subpart L already authorizes a presiding officer's l_
recommendation that' the Commission approve other procedures in a particular proceeding otherwise conducted under Subpart L procedures.
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The law firm representing PROS argued that the informal procedures are insufficient for actions that could deprive an operator of his or her property interest in the continued validity of the lictnse and his or her liberty interest in pursuit of a career as reactor operator.
PROS would support the amendments only if they were modified to make informal procedures available as an option to an operator in lieu of formal proceedings. Another commenter, NUMARC, believed that the codification and use of informal hearing procedures for the grant, renewal or licensee-initiated amendment of a reactor operator license would provide fair, efficient and effective adjudication.
Nonetheless, NUMARC suggested that it would be desirable for the NRC to apply Subpart G to proceedings concerning the denial of an initial or renewal application because of the significance of such a denial for the operator.
The Commission believes that these commenters similarly fail to give sufficient consideration or weight to the specification of circumstances in which formal procedures will apply and to the authorization of the presiding officer to recommend other than informal procedures in appropriate cases.
Moreover, these commenters do not scrutinize closely the type of affected individual interests or the general types of inquiries in the adverse actions i
at issue, l
A party's entitlement to a hearing is determined by the balancing of three factors:
the private interest affected by official action; the probble value of additional or different procedures; and the Government's interest,
[
_ including the function involved and the fiscal and administrative burdens of 1-additional or different procedural requirements. Mathews v. Eldridae, 424 U.S. 319, 335 (1976). After reviewing and weighing these factors, the l
Commission remains convinced that the informal adjudicatory procedures set 6
forth in Subpart L are appropriate for the reactor operator licensing
. proceedings to be covered by this rule.
This conclusion follows from a number of observations and findings, but in particular the following:
- 1) the nature of tae interests at stake; 2) the Commission's provision of a meaningful hearing at a meaningful time ; 3) the appropriateness of informal procedures for resolution of the typical inquiries in the proceedings to be held under Subpart L; and 4) the opportunity to obtain other procedures when they are I
necessary for a fair resolution of critical factual issues.
The Commission recognizes that substantial personal interests may be affected by the decision to grant or deny an application for a reactor operator license.
However, the nature of the affected interest is limited by virtue of the fact that reactor operator license applicants are subject to broad Commission powers to grant or deny, and operator licenses permit performance of the licensed functions only in a spectfic facility,10 CFR 55.53(b)-(c), where the licensee of the facility has certified to the need for I
the position and requested examination of the applicant for a license.
10 CFR 55.31(a)(3)-(4). The interest at issue is also somewhat limited by the fact that reactor. operator licenses expire six years after issuance with no i
guaranteed right to renewal.
10 CFR 55.55. Moreover, the applicant for initial issuance of an operator or senior operator license does not face a deprivation of a vested or existing position or status. An individual seeking renewal of an existing license may feel that he or she has been deprived of a vested or existing position or status, but there is no guaranteed right of
)
renewal.
Therefore it is not certain that protected interests are always or generally at stake in proceedings concerning-the issuance or renewal of a Part 55 license.
However, the Commission will nonetheless assume for purposes of 7
further discussion that they are.
The key question remains as to whether the Commission is providing less procedure than due process requires urder the circumstances. The Commission is providing a hearing. And, it is clear that due process does not require full trial-type procedures in every such case.
'The fundamental requirement of 6 arocess is the opportunity to be heard 'at a meaningful time and in a meaningful manner.'" Mathews v. Eldridae, 424 U.S. at 333 (quoting Armstrena v. Manzo, 380 U.S. 545, 552 (1965)). The Supreme Court has repeatedly. emphasized that "'[d]ue process,' unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances." id, at 334 (quoting Cafeteria Workers v. McElrov, 367 U.S.
886, 895 (1961)).
Thus, "'[d]ue process is flexible and calls for such procedural protections as the particular situation demands.'" id. (quoting Morrissey v. Brewer, 408 U.S. 471, 482 (1972)).
The nature of the relevant inquiry is central to the evaluation of the fairness and reliability of the existing procedures and the probable value, if-any, of additional safeguards. Id. at 343. Arguing that the Commission should bolster initial.and renewal applicants' access to formal adjudication, one commenter emphasized that the. requirements for a Part 55 license necessitate subjective evaluations on such issues as health,-and administration of the written examination and operating test.
See Section 11-B-2-a.
The Commission does believe that the typical issues in reactor operator proceedings for the grant or renewal of licenses are likely to concern performance on a written examination or an operating test. As set forth in Part 55, however, these examinations test knowledge, skills and abilities pertaining to specific technical and scientific matters. Jag 10 CFR 8
l l
- ) 55.41(b), 55.43(b), 55.45, 55.57 and 55.59(a).
In addition, the Commission has. issued standards for examination and grading of the tests. M NUREG-1021.3 While some parts of these examinations may be less amenable to
" objective" evaluation than other parts, g.a., short answer as opposed to multiple choice questions, the subject matter still falls within the Commission's special expertise and judgment.
Even when substantial factual issues arise regarding performance on a question or problem concerning technical or scientific knowledge or judgment, oral trial-type presentation may not be required. M Kerr-McGee [.or.g. (West Chicago Rare Earths facility),
CLI-82-2, 15 NRC 232, 259-60 (1982), aff'd sub nom. City of West Chicaao v.
NRC, 701 F.2d 632 (7th Cir. 1983), and cases cited therein.
Indeed, in such cases the right to cross-examination may serve little or no purpose, and result l only in futility or delay. M Buttrev v. United States, 690 F.2d 1170, 1182 (5th Cir. 1982). And, the possibility or existence of professional disagreement over an applicant's health, 4r example, does not suffice to create a specter of questionable credibility or veracity. M i
fiathews v. Eldridae, 424 U.S. at 344. Moreover, an applicant who is denied a license because of failure to pass'the written examination or operating test, l
or both, may reapply two months after the date of denial, and make successive-l applications at other intervals thereafter.
These opportunities for reapplication in and of themselves may satisfy the purposes of a hearing if one is otherwise required. M Tyler v. Vickerv, 517 F.2d
' Copies of NU EGS may be purchased from the Superintendent of Documents, U.S. Covernment Printing Office, P.O. Box 37082, Washington, D.C. 20012-7082.
Copies are also available from the National Technical Information Service, L
5285 Port Royal Road, Springfield, VA 22161.
A copy is also available for L
inspection and/or copying' at the NRC Public Document Room, 2120 L Street, L
N.W., Washington, D.C, 9
l l
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1089 (5th Cir. 1975).
For the reneual applicant, the risk of error and the need for other procedures is also reduced by the fact that the Commission will
. permit the:11 censed operator to take the NRC requalification examination three times before denying the renewal application on the basis of the licensee's failure of the NRC requalification examination.2 Recommendation and spproval of other procedures such as cross-examination may occur, for example, where resolution of substantial factual issues involving witness-credibility, bias or veracity is essential to the determination of a license renewal.
However, the Commission expects that the broad powers of a cresiding officer in Subpart L proceedings will permit fair, correct and efficient decision-making in typical reactor operator licensing proceedings.
In any event, the Commission need not provide formal adjudication for all hearings requested by initial or renewal applicants simply because some~ hypothetical cases not before the Commission arguably may require the use of formal procedures. SSA FDIC v. Mallen, 486 U.S. 230, 247-48 (1988).
The Commission's conclusion that Subpart'L' procedures are sufficient for proceedings concerning the granting and renewal of reactor operator licenses is not altered by the emphasis of one commenter, the law firm representing five utilities, on the rarity of hearings concerning Part 55 licenses and the relatively' smaller volume of Part 55 licenses as compared to material-licenses.
Despite the history of a small number of reactor operctor liceasing hearings, reduced cost and delay while maintaining fair procedures should 2NUREG 1021, Rev. 6, ES-605 (June 1, 1990).
The licensee may be removed from licensed. duties after failing the first NRC-administered requalification examination and will be removed from licensed duties after failing a second NRC-administered examination. Id.
10
remain important objectives for both the Commission and the parties.
In j
addition, the cost of one or a group of-formal hearings in reactor operator j
licensing cases could in fact: prove substantial.
In each formal _ proceeding, a three-member licensing board or an administrative law judge must be appointed, and with that would also generally follow the costs of such procedures as formal. discovery, prefiled testimony and a trial-type hearing with oral testimony of the witnesses and cross-examination.
For instance, real costs associated with formal, trial-type adjudications arise from need for court reporters, transcripts, rent for hearing facilities,8 and travel expenses for necessary agency personnel.
Moreover, the commenter conceded that it is difficult to generalize from the figures, considering the fact that the Commission did issue 798 Part 55 licenses and processed 1750 renewals during
.1987 2.
Differences Between Challenges to Proposed Enforcement Action and Challenges to the Denial of the Grant or Renewal of a License l
One commenting utility requested further justification of the Commission's decision to grant formal hearings in proceedings resulting from proposed enforcement action but informal hearings in proceedings concerning the denial of the issuance or renewal of a license.
It has been a long-standing Commission policy to provide the opportunity for formal adjudication l
regarding the Commission's enforcement actions affecting licenses.
This-should not come as a surprise in light of the severity and potential stigma of Commission-initiated action for revocation or suspension of a license, or a 4
3Pursuant to agency-policy,.the trial-level proceedings conducted in formal Subpart' G adjudications are usually held near the applicant or licensee involved, and this-often requires renting a hotel conference room or similar facility.
11
?
e
e
.f civil penalty, as well as the propriety of-formal procedures for adjudication C.
of such underlying issues as a material false statement' and willful violation of a rule or regulation. Igg 10 CFR 55.61. As noted above, the Commission does not' contemplate that the tvpical grounds of denial of an initial or 4
renewal application will generally involve such issues.
B.
Comments Relating to Specific Provisions of Suboart L-i 1.
Proposed 6.2.1201--Scope of Subpart The law firm representing PROS declared that it.was not possible to
- discern the circumstances to which the proposed rule would and would not apply.. In particular, this commenter felt that proposed 5 2.1201(b) was extremely vague.
Other commenters did not appear to have this difficulty.
The Commission sees no need for any change in the proposed amendments, but-will elucidate briefly the application of the amendments.
Section 2.1201(a)
)
clearly provides that the rules of Subpart L will govern procedures in an adjudication initiated by a request for a hearing in a proceeding for the grant', renewal, or licensee-initiated amendment of an operator or senior
' operator license.
On the other hand, the proposed amendment-of.5 2.1201(b) provides that the formal procedures of Subpart G will govern an adjudication-
- regar og an operator or senior operator: license that arises from a request i
for hearing under Subpart 8 of 10 CFR Part 2 on an order to show cause, an order for modification of license, or a civil penalty. An crder to show cause L
under Subpart B is the mechanism by which the Commission would generally act to revoke or_ suspend a license. Thus, the Commission contemplates that the
. formal procedures of Subpart G will govern proceedings to revoke or suspend an L
- operator or senior operator license subject to Part 55.
The pecposed 10 l
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amendment of 6 2.1201(b) also would make the formal procedures set forth in Subpart G applicable to an adjudication initiated by a notice of hearing i
issued under 6 2.104, or a notice of proposed action under 6 2.105. The Commission's construction of 59 2.104 and 2.105 is set forth in West Chicaco, 15 NRC at 244-46.
Application of these provisions to reactor operator licensing under Part 55 would arise if the Commission determined that the public interest required a formal hearing on a particular application for, or amendment to, a reactor operator or senior operator license.
Of course, this rulemaking record indicates that the Commission does not expect that it will be making the requisite determinations under il 2.104 and 2.105 with regard to
-reactor operator licensing proceedings.
i 2.
Existing 6 2.1205--Request for a Hearing; Petition for Leave to Intervene
.a.
Reauests for Formal Ad.iudication.
One utility and the law firm representing five utilities urged that the Commission add a provision that explicitly permits an operator to request formal adjudication upon a-showing.
of good cause or special' circumstances. The latter commenter recommended specifically an amendment of existing 5 2.1205(b) so as to provide explicitly to the-Part 55 license applicant "who is issued a notice.of proposed denial or a notice of denial" the opportunity to include in his request for hearing a specific request for formal-adjudication.
The amendment would require that the applicant include with the request an explanation of the circumstances requiring such formal procedures as discovery and cross-examination of witnesses.
This commenter conceded that the procedures in Subpart L are i
generally appropriate for hearings on Part 55 l< censes, but analyzed the balancing factors for determining administrative due process as warranting i
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- trial-type proceedings in many cases, particularly for renewal applicants.
E.
The Commission has responded to many of this commenter's views on due process in Section II-A-1, above.
While the Commission differs with some of the i
, commenter's views-on the circumstances which are likely to warrant use of other procedures, explicit authorization of an early vehicle for the applicant's identification of case-specific needs for other procedures is I
desirable.
Thus, the final rule amends 6 2.1205(b) so as to authorize the
- pplicant to request, within the request for a hearing, "that the presiding officer recommend to the Commission that procedures other than those authorized under this'subpart be used in the proceeding, provided that the applicant identifies the'special factual circumstances or issues which support the use.of other procedures."
Under 6 2.1209, the presiding officer already "has the duty to conduct a fair'and impartial hearing according to law" and "has all' power necessary to those ends, including the power to... (d]ispose of procedural requests or similar matters." And, nothing in Subpart L expressly prohibits the applicant u
who is subject to Subpart L procedures from asking within the request for l
hearing,.or separately, that the presiding officer exercise the power to
"[r]ecommend to the Commission that procedures other than those authorized under-(Subpart L] be used in {tte] proceeding." igg 10 CFR 2.1209(k),
1 h
Nonetheless, explicit recognition of an opportunity under Subpart L for i
L applicants to request other procedures within their request for hearing l
clarifies-the procedural scheme and thereby enhances the applicant's access to l=
' otherprocsdureswhereappropriate. The Commission is not altering, however, j'
the necessity of the Commission's authorization of the use of other l
procedures. Thus, the new provision only authorizes the applicant to request 4
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o that the presiding officer make the necessary recommendation to the 4
X Commission,
- b. Standina for Intervention.- One utility urged the specification of an.
exceedingly strict test of judicial standing for intervention in operator license proceedings.
Specifically, the commenter suggested that the third party be required to demonstrate that it will present evidence that would materially alter the outcome of the NRC hearing decision.
NUMARC also l
4 recommended a clarification that the threshold of standing for intervention in reactor operator licensing adjudications, under either Subpart L or Subpart G, will be very high. The problem with requiring such a demonstration of a material alteration of the outcome of the proceeding is that it would place an extremely high burden on the petitioner for-intervention.
The Commission l
shares the concern that intervention not be indiscriminate, such as for the purpose of creating unnecessary delay.
However, the Commission believes that i
the existing procedures and judicial standards for standing will provide fair and sufficient scrutiny of petitions for intervention.
Sag 10 CFR 2.1205.
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 the petitioner.
10 CFR 2.1205(d),(j).
And, the presiding officer must determine that the specified areas of concern are germane to the subject matter of the proceeding, and that the petition is timely and meets the judicial standards for standing.
10 CFR 2.1205(g), (j)(3).
Intervention is, t
- 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
standard" established by NRC case law for standing in nuclear reactor licensing proceedings, whereby persons residing within fifty miles of a i
facility generally are considered to have standing, was not applicable to material licensing proceedings. [54 FR at 8272).
The Commission will take this opportunity to clarify that the " distance standard" is not-automatically applicable 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 6 2.1205(g),
- c.. Apoeal of the Denial of a Reauest for Hearino.
Section 2.1205(n) of Subpart'L currently, permits appeal of an order denying a request for a hearing-l (or petition for intervention) in its entirety within ten days of the service of the order..That appeal currently lies with the Atomic Safety and Licensing Appeal Board.
10 CFR 2.1255. The law firm representing five utilities t
. requested.that the Commission amend existing 5-2.1205(n) so as to permit an immediate appeal of. a presiding officer's denial of a. request for a formal hearing.
J.s discussed below,- this commenter also recommended that the Commission.give the presiding officer the power to grant a request for a other U
proceeding. The Commission declines to adopt this recommendation for several reasons.
First,-the existing procedure for an immediate appeal is premised upon-the denial of any hearing as a final bar to adjudication. _This is a far different circumstance for appeal than a mere denial of other procedures for a hearing that is in fact granted.
Indeed, completion of the informal E
adjudication may resolve the requestor's concerns.
Second, for reasons stated I
below, the Commission has chosen to retain the authority to order procedures in addition.to those in Subpart L for proceedings otherwise governed by 16 l
Subpart L.
Thus, the Commissi e declines to complicate the proposed decisional scheme by involvement of the Appeal Board in immediate consideration of whether a other proceeding should be conducted.
Finally, the Commission-sees no reason to carve out for reactor operator hearing questions a special exception to its existing procedures for appeal and review..
3.
Existing i 2.1209--Presiding Officer's P:,wers The law firm representing five utilities reconnended that the Commission amend existing 9 2.1209(k).so as to authorize the prasiding officer in a Part 55 hearing to grant a request for other adjudication. Currently, the presiding officer's power under 5 2.1209(k) is limited to a recommendation that the Commission authorize the use of other procedures for a particular proceeding..The recommended change might slightly expedite decisionmaking on a request for other adjudication.
However, the Commission 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 Commission serves the interests of uniformity of decisionmaking, full consideration of the pc' ntial commitment of costs and resources, and administrative finality.
This commenter also recommended amendment of 9 2.1209 so as to authorize the presiding officer to entertain a specific request for a formal
- adjudication or for certain formal procedures in the course of the hearing if the need for such procedures becomes apparent.
A presiding officer, however, already has authority to entertain such requests during the course of an informal hearing._ Nothing in Subpart L prohibits any party from presenting such a motion to the presiding officer during an informal proceeding. S.gg 10 CFR 2. 1237. Moreover, the Commission need not and probably could not specify 17-
~
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y all or even'most types of procedural motions.and supporting circumstances that could be presented during the course of an informal hearing.
4.
Existing 6 2.1211--Nonparty Participation NUMARC expressed concern about the application of 5 2.1211 of Subpart L, which provides for participation in a hearing by a person not admitted as a party,-including. a representative of an interested State, county, municipality i
t or agency thereof.
Section 2.715 of Subpart G contains similar provisions, The commenter recommends that the Commission clarify that such nonparties s..
sh'ould not 'be able to use individual operator license proceedings to address an issue'other than an issue that is the subject of the hearing. The Commission notes that 5 2.1211 already states that "[t]he presiding offer En permit a person who is not a party to make a limited appearance in order to state his or her views on the issues._"
10 CFR 2.1211(a) (emphasis added).
The rule also requires that the request for governmental participation " state with reasonable. specificity the requestor's areas of, concern about the q
licensing activity that is the subiect matter of the oroceedina."
10 CFR 2.1211(b) (emphasis.added). Although the nonparty participant may not be required to take a position on the issues, the views to be expressed must relate to.the issues that are properly subject to challenge in such a p'roceeding.- As with the consideration of a petition for intervention, the-presiding' officer may determine that the views to be expressed are not germane
-to the proceeding and therefore may deny the request for nonparty participation.
For these reasons, the_ Commission sees no need for other clarification of the limits on nonparty participation.
. Environmental Impact:
Categorical Exclusion The NRC has determined that this final rule is the type of action 18
described in' categorical exclusion 10 CFR 51.22(c)(1). Therefore, neither an environmental. impact statement nor an environmental assessment has been prepared for this final rule.
Paperwork Reduction Review This final rule contains no information collection requirements and
-therefore is not subject to the requirements of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.).
. Regulatory Analysis
-The Atomic Energy Act affords interested persons the right to a hearing regarding a reactor operator licensing proceeding. As the Commission previously indicated in its decision in West Chicaao, 15 NRC at 241, the use of informal procedures generally involves less cost and delay for the parties and the Commission than the use of formal, trial-type procedures, the principal other procedural alternative. Also, procedures must be in place to allow for the orderly conduct of those adjudications. Codifying the informal hearing procedures for operator licensing proceedings is preferable to the
.present practice of establishing thel procedures to be-followed on a case-by-case basis.
By codifying the procedures,-the Commission will avoid the expenditure of time and resources necessary to prepare the individual orders
-that' previously have been used to designate those procedures.
This final rule is the preferred alternative and the cost entailed in its promulgation and application'is necessary and appropriate. The foregoing discussion constitutes the regulatory analysis for this final rule.
Regulatory Flexibility Certification The NRC hereby certifies that this final rule will not have a significant economic impact upon a substantial number of small entities.
Many operator 19 l
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s license applicarits or operator licensees fall within the definition of small
'?
businesses found in section 34 of the Small Business Act,15 U.S.C. 632 or
.the Small Business Size Standards set out in regulations issued by the Small Business Administration at 13 CFR Part 121, or the NRC's size standards published December 9,.1985 (50 FR 50241). The final rule should reduce the litigation cost burden upon applicants or licensees because of the informal nature of the hearing, although submission of filings and documentary information detailing contested legal and factual issues is still required.
Cost reduction in comparison to the cost of participating in a formal adjudicatory hearing can be anticipated, although it cannot be estimated with certainty whether that reduction as a whole will be significant.
It is clear that use of informal hearing procedures should not increase the burdens of a hearing upon an applicant or licensee.
Backfit Analysis Because these amendments do not involve any provisions that would impose backfits as defined in 10 CFR 50.109(a)(1), the NRC has determined that the backfit rule,10 CrR 50.109, does not apply to this final rule and, therefore, that a backfit analysis is not required.
List of Subjects in 10 CFR Part 2 Administrative practice and procedure, Antitrust,' Byproduct material, Classified information, Environmental protection, Nuclear Materials, Nuclear power. plants and reactors, Penalty, Sex discrimination, Source material, Special nuclear material, Waste treatment and disposal.
For the reasons set out in the preamble and under the authority of the-Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and 5 U.S.C.
20 l
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552 and 553, the NRC is adopting the following amendments to 10 CFR Part 2:
Part 2 -- RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS 1.
The authority citation for Part 2 continues to read as follows:
AUTHORITY:
Secs 161, 181, 68 Stat. 948, 953, as amended (42 U.S.C. 2201, 2231); sec. 191, as amended, Pub. L.87-615, 76 Stat.
409 (42 U.S.C. 2241); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); 5 U.S.C. 552.
Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104, 105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, as amended (42-U.S.C. 2073, 2092, 2093, 2111, 2133, 21234, 2135); sec. 102, Pub. L.91-190, 83 Stat. 853, as amended (42 U.S.C. 4332); sec. 301, 88 Stat. 1248 (42 U.S.C. 5871).
Sections 2.102, 2.103, 2.104, 2.105, 2.721 also issued under secs. 102, 103, 104, 105, 183, 189, 68 Stat. 935, 937, 938, 954, 955, as amended (42 U.S.C. 2132, 2133, 2134,2135,2233,2239).
Section 2.105 also issued under Pub. L.97-415, 96 Stat. 2073 (42 U.S.C. 2239). Sections 2.200-2.206 also issued under secs. 186, 234, 68 Stat. 955, 83 Stat. 444, as amended 42 U.S.C. 2236, 2282); sec. 206. 88 Stat. 1246 (42 U.S.C. 5846).
Sections 2.600-2.606 also issued under sec. 102, Pub. L.91-190, 83 Stat. 853, as amended (42 U.S.C. 4332).
Sections 2.700a, 2.719 also issued under 5 U.S.C. 554.
Sections 2.754, 2.760, 2.770, 2.780 also issued under 5 U.S.C. 557.
Section 2.764 and Table 1A of Appendix C also issued under secs. 135, 141, Pub. L.97-425, 96 Stat. 2232, 2241'(42 U.S.C. 10155, 10161).
Sectd.on 2.790 also issued under sec. 103, 68. Stat. 936, as amended (42 U.S.C. 2133) and 5 U.S.C. 552.
Sections 2.800 and 2.808 also issued under 5 U.S.C. 553.
Section 2.809 also issued under 5 U.S.C. 553 and sec.
29, Pub. L 85-256, 71 Stat. 579, as amended (42 U.S.C. 2039).
Subpart K also issued under sec. 189, 68 Stat. 955 (42 U.S.C.
2239); sec. 134, Pub. L.97-425, 96 Stat. 2230 (42 U.S.C. 10154).
Subpart L also issued under sec.'189, 68 Stat. 955 (42 U.S.C.
2239). Appendix A also issued under sec. 6, Pub. L.91-560, 84 Stat. 1473 (42 U.S.C. 2135).
Appendix B also issued under sec. 10, Pub. L.99-240, 99. Stat. 1842 (42 U.S.C. 2021b, et seq.).
2.
The. heading of Subpart~L of Part 2.is revised to read-as follows:
Subpart L - Informal Hearing Procedures for Adjudications in Materials and Operator Licensing Proceedings 3.
Section 2.1201 is revised to read as follows:
2.1201 Scope of subpart.
(a) The general rules of this subpart govern procedure in any adjudication initiated by a request for a hearing in a proceeding for --
21
t ta, L
(1).The grant, transfer, renewal, or licensee-initiated amendment of l-a materials license subject to Parts 30, 32, through 35, 39, 40, or 70 of this chapter; or s
(2)- The grant, renewal,- or licensee-initiated amendment of an l
l operator or senior operator license subject to Part 55 of this chapter.
(b) Any adjudication regarding a materials license subject to Parts 30, 32 through 35, 39, 40, or 70, or an operator or senior operator license subject to Part 55 that is initiated by a notice of hearing issued under 6
-2.104, a notice of proposed action under 2.105, or a request for hearing under Subpart B of 10 CFR Part.2 on an order to show cause, an order for modification of license, or a civil penalty, is to be conducted in accordance with the procedures set forth in Subpart G to 10 CFR Part 2.
4.
In 6 2.1205, paragraph (b) is revised to read as follows:
(b) An applicant for a license,_ a license amendment, a license transfer, or a license renewal' who is-issued a notice of proposed denial or a notice of
~
denial and who desires a hearing shall file the request for the hearing within the time specified _in 6 2.103 in all cases. An applicant may include in the request for hearing a request that the presiding officer recommend to the i
22
,7 Commission that procedures other than those authorized under this subpart be used in the proceeding, provided that the applicant identifies the special factual circumstances or issues which support the use of other procedures.
Dated at Rockville, MD, this day of
, 1990.
For the Nuclear Regulatory Commission.
Samuel J. Chilk Secretary of the Commission i
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