ML20135J112
| ML20135J112 | |
| Person / Time | |
|---|---|
| Issue date: | 09/23/1985 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | Dircks W, Plaine H NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO), NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| References | |
| REF-10CFR9.7 AB19-2-54, M850905, NUDOCS 8509250273 | |
| Download: ML20135J112 (10) | |
Text
IN RESPONSE, PLEASE-REFER TO:
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o UNITED STATES NUCLEAR REGULATORY COMMISSION g
r W ASHIN GTON, D.C. 20555
'%...* s September 23, 1985 OFFICE OF THE
_x SECRETARY REVISED MEMORANDUM FOR:
William J. Dircks, Executive Director for Operations Herzel H.E. Plaine, General Counsel
[(ha el J. Chilk, Secretary FROM:
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SUBJECT:
STAFF REQUIREMENTS -' AFFIRMATION / DISCUSSION AND VOTE, 11:30 A.M., THURSDAY, SEPTEMBER 5, 1985, COMMISSIONERS' CONFERENCE ROOM, D.C.
OFFICE (OPEN TO PUBLIC ATTENDANCE)
I.
SECY-85-242 - Mr. Husted's Request'for Hearing The Commission, by a 5-0 vote, approved a notice.of hearing which grants the request of Mr. Charles Husted for a hearing on the issue of whether the Appeal Board's condition barring him from supervisory responsibilities insofar as the training of non-licensed personnel is concerned should be vacated and on the related question of whether he is barred by concern about his attitude or integrity from serving as an NRC licensed operator, or a licensed operator instructor or training supervisor.
The notice of hearing instructs the Chief Judge of the Atomic Safety and Licensing Board Panel to appoint an Administrative Law Judge to preside over the hearing and authorizes the Atomic Safety and Licensing Appeal Board to exercise the authority and perform the review functions which would otherwise be exercised and performed by the Commission.
(Subsequently, on September 5, 1985 the Secretary signed the Notice of Hearing.)
II.
SECY-854102B - Procedures to be Followed When a Subpoena or Other Demand for Disclosure of Records or Information is Served on NRC Employees The Commission, by a 5-0 vote, approved a final rule, the addition of.Subpart D to 10 CFR Part 9,to prescribe procedures for production of documents or disclosure of information in response to subpoenas or demands of courts or other judicial authorities in State and Federal proceedings.
(Subsequently, on September 11, 1985 the Secretary signed the Federal Register Notice.)
8509250273 850923 PDR 10CFR PT9.7 ppR
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1 III.
SECY-85-235 - Final 10 CFR Part 2, Subpart K,
" Hybrid Hearing Procedures for Expansions of Onsite Spent Fuel Storage Capacity at Civilian Power Reactors"
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The Commission, by a 5-0 vote, approved the issuance of a final rule establishing hybrid hearing procedures for licensing proceedings regarding expansion of spent nuclear fuel storage capacity at civilian nuclear power reactor sites.
The Commission also approved several modifications proposed by Commissioners Zech and Bernthal (as shown in the attached pages 16, 31, 33, 41, and 42).
Commissioner Asselstine preferred the original text of pages 16, 31, 33, and 42.
You should. forward the Federal Register Notice as modified for signature and publication in the Federal Register.
(EDO)
(SECY Suspense:
10/7/85)
Attachments:
l As stated i
cc:
Chairman Palladino l
Commissioner Roberts Commissioner Asselstine Commissioner Bernthal
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commissioner Zech Commission Staff Offices PDR - Advance j
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admissibility of contentions, which could be saved by requiring merely a statement of issues within the scope of the proceeding.
It was also designed to provide intervenors with an opportunity to obtain necessary information regarding their concerns through participation in discovery, recognizing that at the oral argument stage they would be required to show the existence of a genuine and substantial dispute of fact in order to trigger a formal adjudicatory hearing.
It was believed that, overall, this approach would save time and would enhance the fairness of the hybrid process.
In view of the substantial opposition to this approach to the initial stages of the hybrid hearing process, the Comission has reconsidered and has decided to abandon it. By requiring the degree of specificity embodied in the existing rule regarding contentions, the delay that would inevitably result from conducting discovery on loosely-stated issues can be avoided.
Accordingly, intervenors will be held to existing requirements regarding petitions to intervene and the filing of contentions.
The Comission does that the threshold for admission of contentions should lieve r-eemosee,M MM.
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be ised g rement at an i tervenor monstrate the existence o a genuine and bstantial spute of act is al ac y suffici tly string t to ensur hat only 5 ous que ons are c sider in a ormal adjud atory ontext. To opose a h er thresh of ad ssibi ty at the tset, p or to disco ry, coul severely re rict oppor nity to pa icipate n spent fue expansion nd transshi.
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, the mission believes at no c to the existin hreshold for admiss n of cont s is warranted for hybrid hearings.
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4 request for oral argument.
In other words, one party may trigger a hybrid
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hearing; the consent of all parties is not required.
B.
Threshold for Admission of Issues or Contentions Under Option 1, a petitioner would not have been required to plead l
contentions but could have simply filed a list of issues within the scope of the proceeding. Option 2 would have required a petitioner to specify at least one admissible contention, as under existing practice. Of the thirteen commenters who addressed the relaxed pleading requirement of Option 1, all objected to it. One noted that although more intervenors would be admitted initially, they would be able to say little because of the expedited hearing The remaining ten ccmmenters argued that the low threshold for process.
admission of issues in Option 1 was inconsistent with the NWpA because it would lengthen rather than expedite the hearing process. They generally preferred Option 2 because it would retain the existing contention requirement.
Nine commenters went further, urging that the threshold for admission of 1
contentions be raised. Several suggested a prima facie test or the submission of sufficient evidence to require reasonable minds to inquire further. Two noted that, because in most cases a previously-licensed technology will be involved, there is sufficient publicly available information to require a stronger factual showing in support of contentions.
Option 1 was intended to provide a simpler, less formal alternative to the initial stages of the existing hearing process.
It was developed in l
consideration of the time that is typically spent arguing about the
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admissibility of contentions, which could be saved by requiring merely a statement of issues within the scope of the proceeding.
It was also designed to provide intervenors with an opportunity to obtain necessary information regarding their concerns through participation in discovery, recognizing that at the oral argument stage they would be required to show the existence of a genuine and substantial dispute of fact in order to trigger a formal adjudicatory hearing.
It was believed that, overall, this approach would save time and would enhance the fairness of the hyterid process.
In view of the substantial opposition to this approach to the initial stages of the hybrid hearing process, the Comission has reconsidered and has decided to abandon it.
By requiring the degree of specificity embodied in the existing rule regarding contentions, the delay that would inevitably result from conducting discovery on loosely-stated issues can be avoided.
Accordingly, intervtants will be held to existing requirements regarding petitions to intervene and the filing of contentions. The Commission does that the threshold for admission of contentions should lieve, i M_ _. u n w.
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rement iat an i tervenor monstrate the existence o a be aised4 genuine and abstantial spute of act is al ac / suffici tly string t to ensur hat only s ous que ons are c sider in a omal adjud atory t.ontext. To
.. pose a h er thresh of ad ssibi ty at the tset, p or to disco ry, coul severely re rict oppor nity to pa icipate n spent fue expansion nd transshi,
roceedin Accordin
, the mission to the existin hreshold for admiss n of believes
.at no c-3 cont s is warranted for hybrid hearings.
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s procedures that must be followed when a Board raises an issue not placed in controversy by the parties.
In essence, a serious safety, environmental, or 4
common defense and security question must exist and the Board must inform the Commission of its action.
See, e a, 10 CFR 2.760a; Houston Lighting and Power Co. (South Texas Project, Units 1 and 2), LBP-81-54, 14 NRC 918, 922-23 (1981).
The Comission agrees that this provision is unnecessary.
Section 134 clearly restricts the designation of issues for adjudication to those genuine, substantial, and material disputes of fact that can only be resolved with sufficient accuracy by the introduction of evidence in an adjudicatory W
arHmtAns 1t n,q^ any] issue [ t'at a Board might consider raising on its own 1
l hearing moti
_ever be y : t]meetthestatutorystandard.
In all likelihood, the staff could satisfa torily examine and resolve any uncontested matters without the need for a f
.al hearing.
Because of the possibility, however rdmote, that the presidin officer's authority to raise issues sua sponte could be appropriately exer ised in a hybrid hearing, the Comission has deleted the prohibition from the final rule.
i Vituedh mnkgifL c/5 pubs WFAct wbo'cY IV.
THE FINAL RULE The final rule adds a new subpart K to 10 CFR Part 2, with sections numbered 2.1100 to 2.1108. Subpart K establishes the procedure for initiating and conducting the first part of a hybrid hearing.
The second part of a hybrid hearing -- the resolution of genuine and substantial disputes of fact -- will be conducted in accordance with procedures already established in 10 CFR Part 2, subpart G.
- 4 Section 2.1100 defines the purpose of subpart K, to establish procedures to be used at the request of a party-in certain contested proceedings for the expansion of spent fuel storage capacity or transshipment, as authorized by section 134 of the Nuclear Waste Policy Act of 1982. The procedures are intended to encourage and expedite those proceedings.
Section 2.1101 defines the scope of subpart K.
It governs applicatiens filed after January 7, 1983 to expand the spent fuel storage capacity at civilian nuclear power plants through the use of (i) high density fuel storage racks (ii) fuel rod compaction, (iii) transshipment to another facility in the same utility system, (iv) construction of additional spent fuel pool capacity or dry storage, or (v) other means.
It includes licensing of an independent spent fuel storage installation under 10 CFR Part 72.
Subpart K does not apply to the first application to use a new technology not previously licensed by the Commission.
l Section 2.1102 adds two definitions of terms used in the subpart,
" civilian nuclear power reactor," and " spent nuclear fuel." These terms are a
used and defined in the Nuclear ifaste Policy Act. A " civilian nuclear power reactor" is a civilian nuclear power plant required to be licensed as a t
utilization facility under Sections 103 or 104b of the Atomic Energy Act of 1954, as amended.
This approximates the NWPA definition but relates it to l
the term " utilization facility," as used in the Atomic Energy Act and I
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Comission regulations. 5I " Spent nuclear fuel" is defined exactly as in the NWPA.
It is fuel that has been withdrawn from a nuclear reactor following irradiaticn, the constituent elements of which have not been separated by reprocessing.
Section 2.1103 has been considerably shortened to avoid duplicating existing provisions in Dart 2.
It provides for a notice of proposed action in accordance with 10 CFR 5 2.105 if the Comission has not found that a hearing is required in the public interest, a hearing has not already been convened on the application, and a notice of proposed action has not yet been publishedasoftheeffectivedateofsubpartK.II The notice specifies As noted that hybrid procedures are available at the request of any party.
earlier, section 2.1103 should be read in conjunction with 10 CFR 95 50.58 and 50. 1.
Application of the Comission's rules implementing Public Law 97 415 (the so-called "Sholly" amendments) is not affected by the fact that a hybrid proceeding is offered.
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Section 2.1104 outlines the procedure for initiating a hybrid hearing.
A A party must make a tirely request for oral argument under subpart K.
l timely request must be granted. An untimely request for oral argument will A power reactor is comonly understood to be a utilization facility
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whose primary function is to produce atomic energy for the generation of electricity. A " civilian nuclear activity" is any atomic energy activity other than an " atomic energy defense activity," as defined in sections 2(5) and 2(3) of the talPA, respectively.
If the Ccmission finds that a hearing is required in the public 1/
interest, a notice of hearing will be published under 10 CFR 2.104 and the hybrid procedures will not be available.
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i require a showing of good cause for the lateness with an opportunity for 1
other parties to rebut.
In' either case, the presiding officer shall issue a l
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written order and establish a schedule for discovery and oral argument on t
admitted contentions.
Thus, as noted earlier, present Commission practice f
I requiring at least one valid contention is maintained in hybrid proceedings.
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Finally, if no request for an oral argument is made or all untimely requests are denied, the proceeding will be conducted in accordance with 10 CFR Part 2, subpart G..
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Section 2.1105 provides that discovery shall be conducted according.to the schedule set by the presiding officer and.is to be completed in 90 days.
2 Additional time will require a showing of good cause.
The foms of discovery
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i permitted are those in subpart G.
In view of the continued applicability of i
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l subpart G under section 2.1108, the list of discovery sections in the f
l proposed rules has been eliminated as unnecessary.
Section 2.1106 establishes the ground rules for oral argument.
Fifteen f
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i days prior to the oral argument the parties must submit a preargument brfef f
summarizing the facts, data, and arguments on which they will rely at oral i
argument. The brief must be supported by facts and data in the form of sworn f
testimony or other sworn written submissions.
Only sworn facts and data may l
be cited during oral argument, and the presiding officer may consider those j
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facts and data only if they are submitted in that form.
i Section 2.1107 states the manner in which issues will be designated for j
L adjudicatory hearing under subpart G.
After the oral argument, the presfding j
officer will (1) designate disputed questions of fact and unresolved 1
ouestions of law for a subpart G hearing, and (2) dispose of all other l
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- 2.1103 Notice of proposed action.
(a)
In connection with each application filed after January 7, 1983, 1
for a license or an amendment to a license to expand the spent nuclear fuel f
storage capacity at the site of a civilian nuclear power plant, for which the I,
Commission has not found that a hearing is required in the public interest, for which an adjudicatory hearing has not yet been convened, and for which a t
notice of proposed action has not yet been published as of the effective date i
of this subpart, the Connission will, prior to acting thereon, cause to be I
published in the FEDERAL REGISTER a notice of proposed action in accordance i
with 1 2.105 of this chapter. The notice of proposed action will specify j
that, at the request of any party to the proceeding, any hearing held on the 1
l application shall be conducted in accordance witn the procedures in this i
subpart.
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l l 2.1104 Requests for oral argument.
I (a)(1) Within ten (10) days after an order granting a request for hearing or petition for leave to intervene, any party may request an oral I
argument.
Requests for oral argument shall be in writing and shall be filed
'i with the presiding officer. The presiding officer shall grant a timely 1
l request for oral argument.
I (2) The presiding officer may grant an untimely request for oral I
j argument only upon a showing of good cause by the requesting party for I
failure to file on time and after providing the other parties an opportunity l
to respond to the untimely request.
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. 42 (b) The presiding officer shall issue a written order ruling on any requests for oral argument and, when a request for oral argument is granted, establishing a schedule for discovery and subsequent oral argument with respect to the admitted contentions.
i (c) If no party to the proceeding requests oral argument, or if all untimely requests for oral argument are denied, the presiding officer shall conduct the proceeding in accordance with subpart G of this Part.
6 2.1105 Di s covery.
Discovery shall begin and end at such times as the presiding officer Je ls sqGcTEO Rnt ALL The shall order. DMin "rigiscovery shall be completed within 90 days.
presiding officer may extend the time for discovery upon good cause shown 6 neapWo ewoes after. providing the other parties an opportunity to respond to the request.
I 2.1106 Oral argumen'..
(a) Fifteen (15) days prior to the date set for oral argument, each party, including the NRC staff, shall submit to the presiding officer a detailed writ *.en sumary of all the facts, data, and arguments which are known to the party at such time and on which the party proposes to eely at the oral argument either to support or to refute the existence of a genuine and substantial dispute of fact.
Each party shall also submit all supporting facts and data in the form of sworn written testimony or other sworn written submission.
Each party's written summary and supporting informatice shall be simultanecusly served on all other parties to the proceeding.
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