ML20210D788
| ML20210D788 | |
| Person / Time | |
|---|---|
| Issue date: | 05/21/1999 |
| From: | Diaz N NRC COMMISSION (OCM) |
| To: | Hoyle J NRC OFFICE OF THE SECRETARY (SECY) |
| Shared Package | |
| ML20210D778 | List: |
| References | |
| SECY-99-006-C, NUDOCS 9907280024 | |
| Download: ML20210D788 (3) | |
Text
l NOTATION VOTE RESPONSE SHEET l
TO:
John C. Hoyle, Secretary FROM:
COMMISSIONER DIAZ
SUBJECT:
SECY-99-006 - RE-EXAMINATION OF THE NRC HEARING PROCESS with comment IX Approved Disapproved Abstain Not Participating COMMENTS:
See attached comments 34 %
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~ COMMISSibNER DIAZ'S COMMENTS ON SECY-99-006
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I commend the Office of General Counsel for its excellent review of the Commission's latitude and options regarding adjudicatory hearing procedures. As explained more fully below, I support a move toward rulemaking even as we pursue legislation confirming NRC's discretion in the choice of hearing procedures. In addition to this variation of option 4, I believe the Commission's direction should embrace aspects of option 1, except for its exclusion of major changes to the hearing process, that call for continuation of the Commission's current course as
- set out in its recent Policy Statement Conduct of Adjudicatory Proceedings, strong case management and Commission oversight with disciplined adherence to procedures and milestones, and modification of our procedural regulations to adopt appropriate features of the Commission's recent policies.
LEGISLATION As the Commission has already indicated in the SRM for SEC-98-197 (Sept. 4,1998), it would be useful to have legislative confirmation of the Commission's flexibility in choice of hearing procedures under section 189a(1)(A). There is no obvious reason why the Commission should not have the same clear and unequivocal authorization as it has been given for combined construction permit and operating license cases under 189a(1)(B)(iv). Continuing deliberation about this question - despite the Commission's adoption of less than full trial-type procedures for certain kinds of cases and the judicial approval of the Commission's action -is a potentially inhibiting factor in setting adjudicatory policy. It can also be a source of confusion and uncertainty for those parties that would be affected by new hearing procedures.
RULEMAKING -
it is appropriate that the Commission now follow up its recent actions for improvement of the adjudicatory process with a move toward rulemaking that would further enhance the efficiency and fairness of the process. The Commission has already taken strong steps toward the assurance of disciplined case management and oversight. I refer not only to our Policy Statement, but also the case specific orders in license renewal cases and the promulgation of procedures for license transfer cases. As originally envisioned in COMNJD-97-004/COMEXM-97-004, effort should also be directed toward review and improvement of the procedural regulations.
As we move toward rulemaking, the Commission should exercise care to ensure the overall promise of major changes. The many steps the Commission has taken over the years to ensure efficient and fair hearings, in combination with recent actions, may go far toward addressing many concems. In addition, OGC cautions that informal proceedings, such as those conducted i
under 10 CFR Subpart L, are no guarantee of a speedy and uncomplicated proceeding as evidenced by past cases under Subpart L in which live hearings may have expedited the proceeding substantially. Thus, I believe it would be useful to obtain stakeholder views on
^ experience with Subparts G and L and options for change, either through a facilitated i
stakeholder meeting or an advance notice of proposed rulemaking, or both.
The Office of General Counsel has identified several options worth exploring. These include the
" Fast Track Option." I would also support further evaluation of a standard hybrid set of procedures (modifying the current Subpart G and eliminating a separate subpart L) that would j
j
2 limit motions, formal discovery, and cross-examination by the parties. For example, the Commission could consider adoption of a requirement, along the lines of Rule 26(a) of the Federal Rules of Civil Procedure, that would require parties to make disclosures - without written demand - of knowledgeable individuals, relevant documents, and expert testimony.
A broad issue to explore is whether the Commission should continue to dictate paths for certain types of cases. There are benefits and disadvantages in that approach as well as in an approach permitting the presiding officer to determine the appropriate path orjustify deviations from limitations on trial-type procedures. I believe we must recognize rather full trial-type procedures will continue to be appropriate or required in some cases, particularly enforcement cases. For example, cross-examination may be desirable or necessary for purposes of efficient fact-finding on such matters as the perception, bias or assumptions of a witness. I am not inclined to alter the basic standing and contention requirements, but I am inclined to support codification of a standard for discretionary intervention. Again, early receipt of the views of stakeholders should be extremely beneficial as the Commission refines its course on this I
important subject i
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