ML20058K987
| ML20058K987 | |
| Person / Time | |
|---|---|
| Issue date: | 08/01/1990 |
| From: | NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| References | |
| SECY-90-255, SECY-90-255-ERR, NUDOCS 9008030327 | |
| Download: ML20058K987 (6) | |
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- SECY-90 255 I FINAL' RULE-ON INFORMAL PROCEDURES POR REACTOR
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-OPERATOR AND SENIOR REACTOR OPERATORELICENSING ADJUDICATIONS
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JJuly 31, 1990 SECY-90-255 i
ERRATA Attached are f our pages with corrections, requested by OGC, for-the proposed Federal Register notice of the final rule on informal' procedures for 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 ollows:
1.
Pege 30.
The f ollowing sentence is deleted f rom footnote 2:
The licensee may be removed from licensed duties after failing the first NRC-administered requalification
, examination and will be removed f rom licensed duties' af ter f ailing a second NRC-administered examination.
Upon'a' rereading o+
the document, the Operator Licensing Branch staf f notifi ed OGC 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 "moreffprmal" has been inserted in its place.
- 4l. -
Page'17, lines 3, 9-10 and 13a14. 'The woral"other" 'has been deleted and. "more f ormal" has been inserted :In its place.
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- 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 i
. 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
" ssues involving witness credibility, bias or veracity is essential to the i
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 l
Ladjudication 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.
See 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 operator-licensing hearings, reduced cost and delay while maintaining fair procedures should 2NUREG 1021, Rev. 6, ES-605 (June 1, 1990).
10
remain important objectives for both the Commission and the parties, in 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 1
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 y
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
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' ' standard" established by NRC case law for standing in nuclear reactor licensing proceedings, whereby persons residing within fifty miles of a 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 j
applicable to reactor operator license proceedings.
The standing of a i
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.
Acceal of the Denial of a Reouest for Hearina.
Sn cion 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.
The law firm representing five utilities l
_ 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 a more formal. proceeding.
The Commission declines to adopt this recommendati::n fer
' 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 i
' informal adjudication may resolve the requestor's ' concerns.
Second, for
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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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Thus, the Commission declines to complicate the t
r proposed decisional scheme by involvement of the Appeal Board in immediate-j consideration of whether a more formal 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 re'iew.
3.
Easting S 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 presiding officer in a Part
- 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
.i that the Commission authorize the use of other procedures for a particular proceeding.
The recommended change might slightly expedite decisionmaking on a request for more formal adjudication.
However, the Commissicn believes that V
the small potential benefits' of the change are outweighed by the benefitr of' its retention of the ultimate determination.
For-instance, a decision by the
~
Commission ~ serves the interests of uniformity of decisionmaking, full l
consideration of the potential commitment of costs and resources, and i
administrative; finality.
This'commenter al'so recommended amendment of 5 2.1209 so as,to authorize t
.the presiding officer to entertain a specific request for.a formal 1
L 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.auth'rity to entertain such requests during the course of an o
-informal hearing..Ncthing in Subpart L prohibits any party.from presenting l
l' such a motion to the 3. residing officer during an informal proceeding. See 10 CFR 2. 1237.
Moreover, the Commission need not and'probably could not specify l
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