ML20210D810
| ML20210D810 | |
| Person / Time | |
|---|---|
| Issue date: | 02/05/1999 |
| From: | Merrifield J NRC COMMISSION (OCM) |
| To: | Hoyle J NRC OFFICE OF THE SECRETARY (SECY) |
| Shared Package | |
| ML20210D778 | List: |
| References | |
| SECY-99-006-C, NUDOCS 9907280029 | |
| Download: ML20210D810 (4) | |
Text
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1 NOTATION VOTE RESPONSE SHEET j
TO:
John C. Hoyle, Secretary i
FROM:
COMMISSIONER MERRIFIELD
SUBJECT:
SECY-99-006 - RE-EXAMINATION OF THE NRC HEARING PROCESS 1
Approved x w/cmts. Disapproved Abstain Not Participating COMMENTS:
See attached comments.
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DATE' 7 Entered on "AS" Yes / No 99o72eoo29 99o722 f,Ea!SeY%'Poa
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COMMENTS OF COMMISSIONER MERRIFIELD ON SECY-99-006 I recommend that the Commission retain formal adjudications for enforcement proceedings. For all other proceedings, I suggest establishing an innovative adjudicatory process that would require at a minimum the opportunity for informal hearings, but which would contemplate the use of more formal procedures, where appropriate. In this way the Commission would retain the maximum flexibility to use all available tools to resolve adjudicatory matters.
To this end, I would suggest replacing Subparts G and L with a new informal hybrid process, accompanied by vigilant monitoring by the Commission (the Office of Commission Appellate Adjudication) to ensure that proceedings are progressing efficiently and fairly. The new process would not distinguish between materials and reactor licensing proceedings. I recognize the litigation risk associated with moving forward with such an extensive change, but I believe strict adherence to our present procedural rules for adjudications would be inconsistent with the Commission's goals to achieve regulatory efficiency. Many of our stakeholders, including Congress, believe we must act to provide a more transparent, predictable, and streamlined method of resolving adjudications. Thus, I think it is time rethink the hearing process.
I would envision a complete review of the twv Subparts to determine the best way to proceed. I offer the following suggestions as starting point:
- 1. Prehearine Matters A. Who should preside? - At the prehearing stage, I would prefer the Chief Judge of the Atomic Safety and Licensing Board Panel assign the case to a either a Presiding Officer or a Board, to initially resolve prehearing matters. A Board could consist of Administrative Law Judges (we currently have no ALJ's on staff), Administrative Judges, staff attomeys from the Office of the General Counsel, or staff technical expens. The Presiding Officers similarly would not have to be Administrative Judges.
I B. Parties - Intervenor(s) and the licensee. Our present informal procedures do not require the staff to be a party. I would continue that practice. I would prefer the NRC staff to assist in adjudications by presiding over hearings, resolving appellue issues, and appearing as witnesses at the discretion of the Presiding Officer, Board or Commission.
C. Standing and Contentions - I would retain the basic framework of the procedures for standing and contentions in Subpart G. I would modify the procedures to expressly pennit discretionary intervention, which is intervention by a party who does not meet the expressed requirements for standing, but whose input would aid the Commission in making sound decisions. I would codify the Commission's long-standing practice of considering factors annunciated in Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 & 2), CLI-76-27,4 NRC 610,616 (1976), to determine whether to permit discretionary intervention. Codifying this longstanding practice would be supported by the stakeholders because it would signal that the Commission is interested in a greater 1
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2-exchange ofinformation and participation by parties who would otherwise be excluded from our proceedings. I would also clarify and shorten the Subpart G procedures.
D. Prehearing Conferences - Prehearing conferences would not be required. However, the Presiding Officer or Board would be free to hold prehearing conferences to expedite the decision on standing and contentions. Prehearing conferences seem to be especially useful in difficult standing cases and where there are many contentions. But prehearing conferences seem to be unnecessary in uncomplicated cases, ea, where the standing determination is obvious and there are few contentions.
E. Prehearing Order - This would be a new monitoring tool used by the Commission to ensure that proceedings are on track and would give the Commission an opportunity to determine whether to hear a case itself. A Presiding Officer would issue a Prehearing Order after it had decided standing and all contentions. The order would explain the Board's ultimate ruling on intervention, would set out the particular hearing procedures to be used, would set milestones for resolving the merits, and establish a final date for resolving the case. The Presiding Officer would decide, with input from the parties, whether a formal oral hearing would be most fair and eflicient or whether a written record would suffice. The Board would be encouraged to seek Commission guidance on novel issues. The Prehearing Order mlings would be referred to the Commission. At that time the Commission would review the rulings and decide whether to preside over the hearing itself. The Commission could also comment on standing, the admissibility of contentions, milestones, and the date for issuing its final order resolving the controversy.
The Commission could also offer guidance at that time on any novel or particularly difficult issues. The parties would be permitted to challenge rulings on standing and admissibility of contentions, as is now the case, but would not be permitted to seek review of other rulings in the Prehearing Order.
F. Alternative Dispute Resolution - Ifit is clear that a case is going to hearing, whether before the Commission or Board, I think the parties should be required to go through some type of altemative dispute resolution within a specified time frame. It is not uncommon for the Board to encourage settlement in licensing matters and if the staffis not a party, there is no risk of compromising the Commission's position on safety issues.
This is consistent with President Clinton's May 1,1998, Memorandum encouraging agencies to use attemative methods of dispute resolution and with our own policy on such matters. See 57 Fed. Reg. 36678 (1992).
G. Discovery - Formal discovery by the parties in the proceeding would not be permitted.
However, the Presiding Officer or Board could encourage voluntary disclosure of documents in order to narrow the issues for hearing. The staff would be required to make licensing documents available consistent with the disclosure provisions in Subpart j
L. The Commission, Board or Presiding Officer would also be free to request documents or other information relating to the proceeding.
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- II. Hearine Procedures A. Who should preside? - Either the Commission, a Presiding Officer, or a Board.
Ultimately, the Commission would make this determination, but the Conunission would have the benefit of the Licensing Board's packaging of the issues, recommended procedures, expected milestones, and a date for finally resolving the controversy, provided in the Prehearing Order.
B. Cross Examination - As a general matter, I would prefer to follow the basic procedures set out in Subpart M, which would in this context permit only the Commission, the Presiding Officer, or the Board to ask the panies questions at hearings. Subpart M does not permit one pany to ask questions of another. However, I would continue the practice under Subpart M, of permitting the panies to submit questions to the Presiding Officer, Commission, or in this context a Board, in advance of the hearing. This having been said, I recognize that cross examination may be a statutory requirement for certain proceedings and the regulations should recognize this Congressional intent.
C. Oral or Written Record - Oral hearings would not be required. However, the Commission would use oral hearings to aid in fair and efficient decision making and will encourage the Boards and Presiding Officers to do the same. Although in instances where the Commission chooses not to hear the case itself, the Commission will leave the details of how best to conduct a hearing to a Board or Presiding Officer. Under this mechanism, the Commission would still be able to monitor the proceedings to ensure that the Presiding Officers and Boards remain on target to meet the dates ofissuing their final decisions.
D. Witnesses - The Commission, Board, or Presiding Officer on its own motion, could call witnesses, including staff experts, to appear at the hearing to provide assistance in resolving difficult issues.
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UNITED STATES 8'
NUCLEAR REGULATORY COMMISSION o
g WASHINGTON, D.C. 20555-0001 s*****/
July 22, 1999 SECRETARY MEMORANDUM TO:
Karen D. Cyr General Counsel FROM:
Annette Vietti-Cook, Secretary IM ~
SUBJECT:
STAFF REQUIREMENTS - SECY-99-006 - RE-EXAMINATION OF THE NRC HEARING PROCESS The Commission har
.ed the two-track solution outlined in Option 4 which includes rulemaking while coru.rently pursuing legislation to confirm that NRC has the discretion to choose the hearing procedures it desires in carrying out its responsibilities. Additionally, the Commission has approved retaining the use of the formal hearing process for enforcement cases. The Commission has directed careful case management and will continue close Commission oversight and monitoring of cases via the Office of Commission Appellate Adjudication. OGC should prepare draft legislation that would give the Commission the same flexibility the Commission has been given by section 189a(1)(B)(iv) of the AEA for hearings on combined licenses. The Mgislative package the Commission has already sent to the Congress y
should be amended accordingly.
(OGC)
(SECY Suspense:
8/1/99)
The ruiemaking should outline the NRC's discretion and flexibility to determine the type of proceeding for hearings which would require at a minimum the opportunity for informal hearings, but which would contemplate the use of more formal procedures where appropriate. The rulemaking should provide an approach that would modify at least 10 CFR Part 2, Subparts G, L, and J so that all hearing requests (except enforcement cases but including reactor and materials licensing matters) will follow a similar path. The rulemaking should also provide for comment on a ' Fast Track Option' (a's outlined by OGC in Attachment 4, page 8). The rulemaking should provide specific techniques that would be available if an informal process was determined to be appropriate and should describe the agency rationale for the type of proceeding selected. The rulemaking should include evaluation of procedures that would limit or discipline the use of 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. The rulemaking should eclude codification of a standard for discretionary intervention. The rulemaking should utilize and codify, as appropriate, the Commission's previous guidance in Statements of Policy on Conduct of Adjudicatory Proceedings. The staff should consider use of an enhanced participatory process for facilitating the exchange of views from stakeholders, such as facilitated meeting (s) and/or an advanced notice of proposed rulemaking where stakeholders could present their views on experience with Subparts G and L.
(OGC)
(SECY Suspense: Proposed Rule:
12/15/99)
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The statement of considerations for the proposed rules, and the case we make in pursuit of legislation on hearings, should make clear that we are not trying to push the public away but instead are actively seeking to engage the public in what we v pe will be more timely, useful, and satisfying ways. In proposing logislation and changing Part 2, the agency is not out simply to shorten hearings and make them less formal. Instead, we are moving away from imposing the trappings of trials on citizens who seek to participate in licensing actions. Many public interest groups, even some reasonably well funded ones, simply do not have the time and money for NRC formal adjudication. The cases we make for legislation and rulemaking should also say that we are increasing our efforts to engage with the public more generally. Hoping to generate useful discussion, the staff and the Commission are more often engaging in early, frequent, and useful interactions with public interest groups.
The staff should include the questions attached in the Statement of Considerations to assure identification for public comment.
Attachment:
As stated cc:
Chairman Dicus Commissioner Diaz Commissioner McGaffigan Commissioner Merrifield EDO CIO CFO OCA OlG OPA Office Directors, Regions, ACRS, ACNW, ASLBP (via E-Mail)
y ATTACHMENT QUESTIONS FOR THE STATEMENT OF CONSIDERATIONS FOR PUBLIC COMMENT Tracks - How many proceeding tracks should there be? We understand that there will need to be at least two tracks: a formal track (for enforcement proceedings and maybe some others),
and an informal track. There could be more than one informal track (for example, there could be a highly expedited informal track and a general informal track). Rules would need to be prescribed for each of these tracks (of course, some rules could apply equally to all tracks).
Assuming that there is more than one track, who will decide which track is appropriate? Should there be criteria for selection of the appropriate track for a proceeding? Should parties be permitted to choose the track they want to follow?
Presiding Officer -- Should there be criteria in the rule for determining whether a proceeding should be held before an administrative judge or the Commission? If yes, what should those criteria be?
Discovery - Should discovery be eliminated in adjudicatory proceedings other than enforcement proceedings? Should it be limited to requests from the Presiding Officer? Should the parties be required to provide each other, at the outset of a promeding, with all documents in their possession that are relevant to the proceeding, wit %ut going through a discovery process?
Witnesses -- Should parties be permitted to present witnesses who testify orally? Or shouH all witness testimony be in the form of written submissions? Who should be allowed to elicit testimony from a party's witnesses (e.g., the presenting party, or only the presiding officer)?
Cross examination -- Should parties be permitted to cross examine witnesses orally? Should cross examination be limited to questions from the Presiding Officer?
Oral statements - Should oral statements by parties be limited to time-circumscribed arguments made by parties or their representative? Should proceedings be permitted to take place on paper filings alone?
Time limitations -- should firm time schedules for various aspects of proceedings be laid down?
For example, if discovery is allowed, it could be required to be completed within a relatively short period of time; an initial decision could be required within a certain number of days after the parties have presented their final arguments?
Alternative Dispute Resolution - Should parties be required to engage in alternative dispute resolution? When would be the best point in the proce'eding to engage in alternative dispute resolution?
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