ML20235D781
| ML20235D781 | |
| Person / Time | |
|---|---|
| Issue date: | 05/21/1987 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| References | |
| FRN-52FR20089, RULE-PR-2 PR-870521, NUDOCS 8707100297 | |
| Download: ML20235D781 (18) | |
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DOCKET NUMBER
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PROPOSED RULE b8 Y cxe a wn)
D0LKETrr 3
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IlVCLEAR REGULATORY COMMISSION 10 CFR Part 2 0FFu 00 Chi n.
- Informal Hearing Precedures for Materials Licensing Adjudications AGENCY:
t'uclear Regulatory Comission.
ACTION:
Proposed rule.
SUWARY: The Nuclear Regulatory Comission is proposing to amend its regulations to provide rules of procedure for the conduct of informal adjudicatory hearings in materials licensing proceedings. The Atomic Energy Act of 1954 requires that the NRC, in any proceeding for the granting, suspending, revoking, or amending of an NRC license, including a license involving source, byproduct, and special nuclear materials, afford an interested person, upon request, a " hearing." The Comission previously'has determined that the " hearing" provided for a materials licensing proceeding need not encompass all the procedures in t.'RC regulations that govern formal adjudications for the licensing of production and utilization facilities.
Rather, the Comission has determined that, in most instances, an informal hearing with an opportunity to present written views is sufficient to fulfill this requirement. This proposed rule prescribes the procedures that would govern these informal proceedings.
DATES: Coment period expires July 28, 1987 Coments received after this date will f
be considered if it is practicable to do so, but assurance of
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8707100297 870521
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consideration can be given only for comments filed on or before that date.
ADDRESSES:
Submit written consnents to: Secretary, U.S; Nuclear Regulatory Comission, Washington, D.C. 20555, ATTN: Docketing and Service Branch. Hand deliver coments to: Room 1121, 1717 H Street, NW., Washington, D.C., between 8:15 a.m. and 5;00 p.m.
Examine coments received at: The NRC Public Document Room, 1717 H Street, NW., Washington, D.C.
FOR FURTHER INFORMATION CONTACT: Paul Bollwerk, Attorney, Office of the General Counsel, U.S. Nuclear Regulatory Comission, Washington, D.C.
20555, Telephone: (202)634-3224.
SUPPLEMENTARY INFORMATION: 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 agency shall grant a hearing upon the request of any person whose interest may be affected by the proceeding. Among the licenses issued by the agency are those for byproduct material (AEA sections 81-84, 42 U.S.C.
2111-2114, 10 CFR Parts 30-35), source material (AEA sections 61-69, 42 I
U.S.C. 2091-2099, 10 CFR Part 40), and special nuclear material (AEA sections 51-58, 42 U.S.C. 2071-2078, 10 CFRPart70).
In a February 1982 decision, the Commission declared that, with regard to materials l~
licenses, the agency was not required to afford a formal, trial-type adjudicatory hearing under the Administrative Pro::t. dure Act (5 U.S.C.
554,556,557).
Kerr-ticGee Corp. (West Chicago Rare Earths Facility),
Rather, the Commission found that it was
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sufficient to afford an informal hearing in which the parties are given an opportunity to present to the hearing officer their written views and whatever documentary evidence they wish. The Commission's interpreta-tion of the type of hearing it need provide ir conneccion with materials licensing actions was upheld by the United States Court of Appeals for the Seventh Circuit.
City of West Chicago v. NRC, 701 F.2d 632 (7th Cir. 1983).
In order to specify the particular procedures that will be applicable in such informal proceedings, the Commission now proposes to add a new Subpart L to Part 2 of its rules in Title 10 of the Code of Federal Regulations. The chief differences from the Subpart G " Rules of General Applicability" for formal adjudications are discussed below.
TIME FOR FILING A HEARING PETITION Under proposed 9 2.1205(c), " interested persons" (other than an applicant or licensee) wishing to request a hearing en a materials licensing action would be required to file a petition for a hearing within thirty days of the agency's publication in the Federal Register of a notice of the receipt of an application or a notice of agency action relative to an application for a materials license. Thus, the publication of an initial Federal Register notice regarding a materials license application generally will trigger the time for filing a bearing petition.
Under current Comission practice, however, a Federal Register notice is not published with respect to each prcposed or completed materials licensing action that nay be subject to a hearing request.
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[7590-013 While the AEA specifically requires that " interested persons" be afforded a hearing upon request, it does not impose any requirement that the Commission publish a Federal Register notice with respect to each of
.the thousands of material licensing applications-it receives annually.
Because of the large number of materials licensing actions involved, the administrative ano resource burden of a self-imposed requirement to provide notice in all instances, and the relative insignificance of many of the licensing actions invcived, it has been the Commission's practice to provide a published notice only in significant cases. The Commissicn will retain this practice.
If no notice is published, however, a petition is timely if it is filed within thirty days after the petitioner receives actual notice of the action or proposed action complained of, or within one year after completien of the agency action, whichever first occurs.
Further, the proposed rule indicates that a hearing petition filed more than one year after completion of the agency's action will be granted upon a showing of " exceptional circumstances" that precluded the petitioner from discovering the agency action and petitioning for a hearing earlier.
The requirements in 5 2.1205 for the filing of hearing petitions -
would not change the requirements in 5 2.103(b) for the time for filing applicant hearing petiticns following a notice of denial or a notice of proposed denial.
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PROVISION FOR HEARINGS SUESE0 VENT TO GRANT OF A LICENS_E_
While section 189a of the Atomic Energy Act (42 U.S.C. 2239(a)) has provisions that govern whether a hearing must be provided upon request prior to staff action with regard to reactor construction permits and operating licenses, the Act says nothing specific about whether such a hearing requested by an interested person must be completed prior to agency action granting or denying a materials license. The proposed rule therefore' does not preclude, and in fact contemplates, the grant of a license by the NRC staff prior to any initial decision in any proceeding convened as a result of a hearing request.
Of course, the lack of any statutory directive will not relieve the Due agency of any obligation constitutional due process may impose.
process generally requires that if a constitutionally protected right to a hearing exists,I opportunity for that hearing must be afforded before agency action beceres effective.
E.g., Opp Cotton Mills v.
Administrator, 312 U.S. 126, 152-53 (1941).
It also has been recognized, hcwever, that in particular circumstances a balancing of the IThe due process right of a license applicant or a licensee to a hearing with regard to its request for licensing action has been recognized, e g, Buttrey v. United States, 690 F.2d 1170, 1177-78 (5th Gallacher & Ascher Co. v.
Cir. 1982), cert, deniec, 461 U.S. 927 (1983);
Simon, 687 F.2d 1067, 1077 & n.12 (7th Cir. 1982); whether other
" interested persons".have such a oue process right is less apparent, l
City of West Chicago v. NRC, 701 F.2d 632, 645 (7th Cir. 1983).
It also should be noted that in cases involving renewal of a licer.se, the l
Administrative Procedure Act, 5 U.S.C. 558(c), and 10 CFR 2.109 provide l
that the existing license will remain in effect, whether or not the staff cr an intervenor opposes license renewal, pending a final determination of the renewal application.
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[7590-012 private and governmental interest involved may allow government action to precede any hearing. See, e a, Cleveland Eoard of Education v.
Loudermill, 470 U.S. 532, 542 n.7 (1985); Hewitt v. Helms, 459 U.S. 460, 476 n.8 (1983); Parratt v. Taylor, 451 U.S. 527, 540-41 (1901); Barry v.
Barchi, 443 U.S. 55, 64 (1979). A weighing of those interests here has led the agency to conclude that a relicensing hearing is not necessarily required.
The private rights involved in this instance are two-fold:
the right of the applicant to a reasonably prcept administrative assessment of and determination about its application so it can go forth with its planned activities end the right of other " interested persons" to challenge the requested licensing action on the basis of their specific concerns about anticipated harm to radiological health and safety or the environment.
Into this balance also must be weighed the governmental interest in cvoiding delay in the administrative process that will be caused by halting all action on the application pending notice of opportunity for hearing and any hearing. The importance of this factor is heightened by the fact that the agency reviews and processes Kerr literally thousands of materials license applications each yu r.
McGee Corp., 15 NRC at 261. Finally, it is significant that the l
materials involved in the vast majority of cases, when compared to pcwer Ici. at 262.
reactors, involve substantially less hazard.
c Taking these factors into account, the Cctr.ission believes that an appropriate balance is struck by its present practice of not requiring that completion of any regt.ested hearing be a prerequisite to every licensing action by the agency while providing that any " interested
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I person" who believes the effectiveness of the licensing action will be harmful to his or her interests can request a stay from the presiding officer. Section 2.1263 of the prcposed rule cutlines the procedure for making such requests.
DESIGNATION OF A SINGLE HEARING OFFICER Unlike reactor licensing proceedings in which a three-member board is established to conduct any hearing, for most materials licensing proceedings only-a singic hearing officer would be appointed by the Chairman of the Atomic Safety ard Licensing Board Panel (ASLBP) from the panel's membership to rule on a petition for hearing and, if a hearing is granted, preside cver the adjudication. The exception to this rule is for proceedings on Part 70 licenses to receive new fuel at reactor facilities that are subject to an ongoing proceeding for an operating j
license under Part 50.
In such instances, the three-member licensing board conducting the Part 50 proceeding also will ccnsider the Part 70 application in cccordance with the infcrmal procedures in preposed Subpart L unless the beard certifies to the Ccmmission that the matters presented for adjudication are substantially the same as those being litigated in the operating license proceedirg. Upon certification, the Part 70 issues can be adjudicated using the formal hearing procedures in 10 CFR Part 2, Subpart G.
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REQUIREMENTS F0R STANDING Under the proposed G F.1205, the focus of an initial request for hearing or a petition to intervene is to be the issuc of standing.
In turn, the presiding cfficer's determination about whether the petitioner for a hearing has standing would be ia accordance with the Commission's existing practice and would include a consideration of the factors set forthat10CFR2.714(d). Nonetheless, the " distance 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, see, e a, Tennessee Valley Authority (Matts Bar huclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418, 1421 n.7 (1977), is not applicable in materials licensing proceedings.
Instead, the interest of the petiticner must be assessed in terms of the particular licensed facility or activity at issue in the r,aterials licensing proceeding.
PEARING FILE Following a presiding officer's determination to grant a hearing request because the requestor has standing, ! 2.1231 requires that the f4RC staff assemble and make available to the presiding officer and the parties a hearing file cf materials relevant to the licensing proceeding. The file would include the application and any amendment thereto, as well as any environmental assessment or impact statement and any f;RC report er any correspondence between the i;RC and the applicant
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relating to the application. The hearing file also would be placed by
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the staff in the NRC's public document room (PDF) and in any appropriate local PDR.
If a local PDR did not exist, as it does not for the overwhelming majority of materials licenses, then the applicant would be responsible for making the hearing file provided by the NRC staff l
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publicly available during regular business hours in the vicinity of the principal location where the nuclear material that is.the subject of the application will be possessed. This could be dcne by the applicant in a number of different ways, including making the file available at a local public library.
Although the proposed rule provides that no discovery by the parties is allowed in informal proceedings, creation of the hearing file is intended to give all parties in such proceedings access to the central documentation relating to the application for use in preparing written and oral presentations. Foreover, es proposed 5 2.1231(c) indicates, the NRC staff is given the continuing duty of keeping the hearing file for a proceeding current by supplementing it with appropriate documents that are generated after the file is established initially. Further, any issue that arises over the appropriate documents to be included in the file is to be resolved by the presiding officer.
kRITTEN PRESENTATIONS AND DISCRETICN TO HOLD ORAL PRESENTATIONS Under the proposed rule, after a hearing file is established the parties would be given an opportunity to make written presentations.
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These presentations are to be made under oath or affirmation. Those filed by an applicant challenging a proposed denial or a denial of its licensing request must describe with particularity any deficiency or omission in the staff's action.
Similarly, the written presentation of interveners challenging an application for licensing action must describe in detail any deficiency or omission in the application.
Each written presentation also must be supported by all documentation or information that supports or illustrates each deficiency or omission complained of.
Subsequent attempts to present or to rely upon other documentation or information would require the pennission of the presiding officer.
In addition to receiving the parties' filings, the presiding officer could require that the parties answer his or her written questions.
If it appears to the presiding officer, in his or her discretion, that it is necessary for the creation of an cdequate record for decision, oral presentations to the presiding officer by the parties or oral questioning of witnesses concerning the factual and legal issues presented by the licensing action are allowed. An oral presentation by the parties would be appropriate in instances when the presiding officer is convinced that such a presentation is the most expeditious way to clarify or resolve specific ambiguities or controversies arising from the written presentations. Although such presentc.tions generally would be similar to the nontestimonial cral arguments held with respect to notions in formal adjudicatory proceedings, in the event a party wished to make any additional factual presentations for the record, under Oral 6 2.1233(b) the presentor woula be required to be under oath.
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l questioning of affiants or of principals or employees of the applicant or licensee, also under oath, might be allowed in addition to or in lieu of an oral presentation.in instances when the veracity or demeanor of such individuals is at issue and is critical to resolving an important matter in controversy. Normally such questioning would be done by the presiding officer on the basis of his'or her concerns and any questions of the parties the presiding officer finds appropriate. The proposed rule also contemplates that oral questioning could be done by the parties themselves, but only after the specific questions or the line of questions for the witness has been approved by the presiding officer.
Free-ranging cross-examination would not be allowed. The Commissien contemplates that oral presentations or oral questioning would not be necessary in the vast majority of cases.
Thereafter, on the basis of the hearing file, any information presented under cath in written or oral presentations, and any facts that might be officially noticed, the presiding officer would make an initial decision. This decision would be subject to review by an Atomic Safety ano Licensing Appeal Boarc under the same procedures as exist for the appeal of initial decisiens in formal adjudications under Subpart G of 10 CFR Part 2.
In the event that the presiding officer, on his own cr at the request of any party, reaches the conclusion that a full cod fair airing of the issues in the proceeding requires that additional procedures should be used, such as discovery or allering the parties to cross-examine witnesses, or that the prcceeding shculd be conducted
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entirely in accorcance with Subpart G in formal procedures, i 2.1209(j)
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authorizes the presiding officer to request authority to use the additional procedures or to have the Commission convene a formal l-adjudication. The Commission contemplates that this wil,1 not be appropriate in the vast majority of cases.
S,ee generally Sequoyah fuels Corporation (SequoyahUF to UF Facility), CLI-86-17, 24 NRC 489 6
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.(1986).
ROLE OF THE NRC STAFF Another important change in procedure prcpesed in these rules of procedure is.the role provided for the NRC staff.
In formal hearings under Subpart G of 10 CFR Part 2, the staff is a party to the proceeding.. L'nder the proposed rule, in instances other than an applicant-or licensee-initiated hearing following a denial or proposed denial of an application, the staff need rot assume such a role.
Instead, it may decline to participate as a party in the proceeding.
However, if the staff subsequently determined it wished to assume party status or the presiding officer decided it should participate as a party, under proposed 6 2.1213 the presiding officer cculd afford or impose party status.
RESTRICTIONS ON PRIVATE COMMUNICATIONS WITH /EUDICATORS Despite the lack of any statutory requirement that the Comission apply the g parte and separation of functions prohibitions of the Administrative Procedure Act (5 U.S.C. 554(d), 557(d)) to informal adjudications, these prohibitions can in some circur.stences have due process implications.
See Bethlehem Steel Corp. v. EPA, 638 F.:d 994,
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1008-10 (7th Cir.), cert. denied, 447 U.S. 921 (1980); United States Lines v. FMC, 584 F.2d 519, 536-42 (D.C. Cir.1978). The crux of judicial concern in this regard is that the decision resulting from the adjudication should not be based upon information about which the parties have not had notice and a chance to provide their views.
Bethlehem Steel Corp., 638 F.2d at 1009-10; United States Lines, 584 F.2d at 540-41. Proposed s 2.1215(c) addresses this concern by providing that an initial decision can only be based upon information with respect to which all parties have had notice and an opportunity to comment.
SEPARATE VIEWS OF COMMISSIONER ASSELSTINE I do not support publication of this rule for one very simple reason. The rule contains no provision requiring that the Cennission provide notice of licensing actions.
Interested persons have a-statutory right to a hearing on materials licensing actions. Yet, the NRC does not intend to provide notice of an opportunity for a hearing in any save a very few major actions. Absent notice there is little chance that anyone will learn that a licensing action is planned, let alone that they might have a right to a hearing on that acticn. A statutcry right to a hearing is of little benefit if no one knows about it.
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ENVIRONMENTAL IMPACT:
CATEGORICAL EXCLUSION l
l The NRC has determined that this proposed regulation is the type of action 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 proposed regulation.
PAPERWORK REDUCTION REVIEW This proposed 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 materials licensing proceeding. As the Commission previously indicated in its decision in Verr McGee Corp., 15 NRC at 241, the use of informal procedures involves less cost and delay for the parties and the Commission than the use of formal, trial-type procedures, the only other procedural alternative.
Also, procedures i
must be in place to allow for the orderly conduct of those adjudications. Codifying the informal hearing procedures for materials licensing proceedings is preferable to the only other alternative, which is the present practice of setting forth the procedures to be followed on a case-by-case basis.
By codifying the procedures, the Commission will cvoid the expenditure cf time and resources necessary to prepare
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the-individual orders that previously have.been used'to designate those procedures.
It thus is apparent that this proposed rule is the l
preferred alternative and the cost entailed in its promu gation and application is necessary and appropriate. The foregoing discussion constitutes the regulatory analysis for this proposed rule.
BACKFIT ANALYSIS This proposed rule does not modify or add to systems, structures, components, or design of a facility; the design approval or manufacturing license for a nuclear reactor facility; or the procedures or organization required to design, construct, or operate a facility.
Accordingly, no backfit analysis pursuant to 10 CFR 50.109(c) is required for this proposed rule.
REGULATORY FLEXIBILITY CERTIFICATION The proposed rule will not have a significant economic impact upon a substantial number of small entities, f4any materials licensees or interveners 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). While the proposed rules, if adopted, would reduce the burden on licensees or interveners because of the informal nature of the hearirig, the requirement that they submit f
i filings and documentary information detailing centested legal and factuti issues is still required.
Some cost reduction in comparison to 3
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the cost of participating in a formal adjudicatory hearing can be anticipated, although that reduction as a whole may not be significant.
Further, the use of informal procedures will not increase significantly the burden upon licensees to respond to hearing requests. Since the Commission's determination in 1982 that use of such procedures was appropriate, it has received, on average, fewer than five hearing requests per year regarding materials licensing applications. Thus, in accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), the NRC hereby certifies that this rule, if promulgated, will not have a significant economic impact upon a substantial number of small entities.
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 1974, as amended, and 5 U.S.C. 553, the NRC is proposing to adopt the following amendments to 10 CFR Part 2:
PART 2 - RULES OF PP.ACTICE FOR DOMESTIC LICENSING PROCEEDINGS 1.
The authority citation for Part 2 is revised to read as folicws:
Authority:
Secs. 161, 181, 68 Stat. 948, 953, as amendeo (42 U.S.C. 2201, 2231); sec. 191, as amended, 1
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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, 935, 936, 937, 938, as amended-(42 U.S.C. 2073,12092, 2093, 2111, 2133, 2134, 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.
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, 83 Stat. 444, as amended (42 U.S.C. 2236, 2282); sec. 206, 88 Stat. 1246 (42 U.S.C. 5846).
Sections 2.300-2.309 also issued under Pub.L.97-415, 96 Stat. 2071 (42 U.S.C. 2133). 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 also issued under 5 U.S.C. 557. Section 2.790 also issued under sec. 103, 68 Stat. 936, as amended (42 U.S.C. 2133) and 5 U.S.C. 552. Secticns 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). Appendix A also issued under sec. 6, Pub.L.91-580, 84 Stat. 1473 (42 U.S.C.2135),
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2.
Subpart L of Part 2 is added to read as follows:
Subpart L - Informal Hearing Procedures for Ad, indications in Paterials Licensing Proceedings Sec.
2.1201 Scope of subpart.
2.1203 Docket; filing; service.
2.1205 Request for a hearing; petition for leave to intervene.
2.1207 Designation of presiding officer.
2.1209 Power of presiding officer.
2.1211 Participation by a person not a party.
2.1213 Role of the NRC staff.
2.1215 Appearance and practice.
HEARINGS 2.1231 Hearing file; prohibition on discovery.
2.1233 Written presentations; written questions.
2.1235 Oral presentations; oral questiens.
2.1237-Co.nsideration of Commission rules and regulations in informal adjudications.
2.1239 Settlement of materials licensing proceedings.
INITIAL DECISION, COMMISSION REVIEW, AND FINAL DECISION 2.1251 Initial decision and its effect.
2.1253-Appeals from initial decisions.
2.1255 Review by the Atomic Safety and Licensing Appeal Board.
2.1257 Review of decisions and actions of an Atomic Safety and Licensing Appeal Board.
2.1259 Final decision; petition fcr reconsideration.
2.1261 Authority of the Secretary to rule on procecural matters.
2.1263 Stays of NRC staff licensing actions cr of decisions of a presiding officer, an Atomic Safety and Licensing Appeal Board, or the Connission, pending hearing or review.
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6 2.1201 Scope of subpart.
The general rules in this subpart govern procedure in any adjudica-tion initiated by a request for a hearing in a proceeding for the grant, transfer, renewal, or licensee-initiated amendment of a matericis license subject to Parts 30, 32 through 35, 40, or 70 of this chapter.
Any adjudication regarding a materials license subject to Parts 30, 32 through 35, 40, or 70 that is initiated by a notice of hearing issued under 5 2.104, a notice of proposed action under 5 2.105, or a request for hearing under Subpart B of 10 CFR Part 2 on an crder to show cause, an order for modification of license, or a civil peralty, is to be conducted in accordance with the procedures set forth in Subpart G of 10 CFR Part 2.
i f 2.1203 Docket; filirg; service.
(a) The Secretary shall maintain a docket for each adjudication subject to this subpart, comencing with the filing of a request for a hearing. All papers, including any request for a hearing, petition for leave to intervene, correspondence, exhibits, decisions, and orders, submitted or issued in the proceeding; the hearing file compiled in accordance with 6 0.1231; and the transcripts of any oral presentations or oral questioning made in accordance with ! 2.1235 cust be filed with the Office of the Secretary and must be included in the decket.
(b) Documents will be considered filed with the Office of the i
Secretary in adjudications subject to this subpart either --
(1) By delivery to the Docketing and Service Branch of the Office of the Secretary at Ecom 1121, 1717 P Street, NW.,
Washingten, D.C. or
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(2) By mail or telegram addressed to the Secretary,
'U.S. Nuclear Regulatory Commission, Washington, D.C. 20555, Attention: Docketing and Service Branch.
i Filing by mail or telegram will be complete as of the time of deposit in the mail or with the telegraph company.
(c) Computation of time shall be done in accordance with 6 2.710.
(d) A request for a hearing or a petition for leave to intervene must be served in accordance with $ :'.1205(e), (j). All other documents offered for filing are to be served as the presiding officer, the Atomic Safety and Licensing Appeal Board, or the Commission shall direct.
% 2.1205 Request for a hearing; petition for leave to intervene.
(a) Any person whose interest may be affected by a proceeding for the grant, transfer, renewal, or licensee-initiated amendment of a materials license subject to this subpart may file a request for a hearing.
(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 must in all cases file a request for n hearing within the time specified in i 2.103.
(c) The request for a hearing of a person cther than an applicant nust be filed (1) within thirty (30) days of the agency's publication in the Federal Register of a notice of the receipt of, or action relative to, an application, or (2) if no such notice is published, within thirty (30) days after the requestor receives actual notice of a pending
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application or agency action granting an application or within one (1) year after agency action granting an application, whichever first A request for a hearing filed more than one (1)' year after occurs.
effective completion of the agency action will be granted only upon a showing of exceptional circumstances for the late filing.
(d) The request for a hearing filed by a person other than an applicant must describe in detail --
(1) The interest of the requestor in the proceeding; (2) How that interest may be affected by the results of the proceeding, including the reasons why the requestor should be permitted a hearing, with particular reference to the factors of paragraph (g) of this section; and (3) The specific aspect or aspects of the subject matter of the proceeding about which the requestor wishes to be heard.
(e) Each request for a hearing must be served, by delivering it personally or by mail to --
(1) The applicant (unless the requestor is the applicant);
and (2) The NRC staff, by delivery to the Executive Director for Operations, ll.S. Nuclear Regulatory Commission, Washington, D.C. 20555.
(f) Within ten (10) days of service of a request for a hearing filed under paragraph (c) of this section, the applicant may file an The NRC staff may file an answer to such a request for a answer.
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I hearing within ten (10) days of the designation of the presiding officer.
(g)
In ruling on a. request for a hearing filed under paragraph (c) of this section, the presiding officer shall determine that the requestor meets the judicial standard for standing and shall consider, among other factors --
(1) The nature of the requestor's right under the Act to be made a party to the proceeding; (2) The nature and extent of the requestor's property, financial, or other interest in the proceeding; and (3) The possible effect of any order that may be entered in the proceeding epon the requestor's interest.
(h)
If a hearing request filed under paragraph (b) of this section is granted, the applicant and the NRC staff shall be parties to the proceeding.
If a hearing request filed under paragraph (c) of this section is granted, the requestor shall be a party to the proceeding along with the applicant and the NRC staff, if the staff chooses to participate as a party in accordance with 9 2.1213.
(
(i)
If a request for a hearing is granted and no notice of 1
opportunity for a hearing previously has been published in the Federal Register, a notice of hearing must be published in the Federal Register
{
that must state --
(1) The time, place, and nature of the hearing; (2) The authority under which the hearing is to be held; (3) The matters of fact and law to be considered; and l
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(4) The time within which any other person whose interest may be affected by the proceeding may petition for leave to intervene, as specified in paragraph (j) of this section.
(j) Any petition for leave to intervene, which must be filed within thirty (30) days of the date of publication of the notice of j
hearing, must set forth the.information required under paragraph (d) of this section.
A. petition for leave to intervene must be served upon the applicant and upon the NRC staff, by delivering it personally or by mail i
to the Executive Director for Operations, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555. Within ten (10) days of service of L
l a petition for leave to intervene, the NRC staff and the applicant may file an answer. Thereafter, the petition for leave to intervene must be ruled upon by the presiding officer, taking into account the factors set forth in paragraph (g) of this section.
If the petition is granted, the petitioner shall be considered a party to the proceeding.
(k) A nontimely petition for leave to intervene will not be entertained absent a finding by the Commission or the presiding officer that the petition should be granted based upon a balarcing of the factors set forth in { 2.714(a)(1)(1)-(v), in addition to those set forth in paragraph (g) of this section.
(1) The filing or granting of a request for a hearing or a petition for leave to intervene need not delay NRC staff action regarding an application for a materials licensing action covered by this subpart.
(m) An order granting a request for a hearing or a petition for leave to intervene may condition or limit participation in the interest of avoiding repetitise factual presentations and argument.
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(n) In the event the presiding officer wholly denies a request for a hearing or a petition for leave to intervene, that action is appealable within ten (10) days of service of the order on the question whether the request for a hearing or the petition for leave to intervene should have been granted in whole or in part.
If a request for a hearing or a petition for leave to intervene is granted, parties other than the requestor or ' petitioner may appeal that action within ten (10) days of service of the order on the question whether the request for a hearing or the petition for leave to intervene should have been wholly denied. An appeal may be taken by filing and serving upon all parties a statement that succinctly sets out, with supporting argument, the errors alleged. The appeal may be supported or opposed by any party by filing a counter statement within fifteen (15) day. of the service of the appeal brief.
9 2.1207 Designation of presiding officer.
I (a) Unless otherwise ordered by the Commission or as provided in paragraph (b) of this section, within ten (10) days of filing of a request for a hearing relating to a materials license proceeding covered by this subpart, the Chairman of the Atomic Safety and Licensing Board Panel shall issue an order designating a single member of the panel to l
rule on the request for a hearing and, if necessary, to serve as the l
presiding officer to conduct the hearing.
i l
(b)
For any request for hearing relating to an application under 10 CFR Part 70 to receive and store unirradiated fuel at the site of a l
production er utilizatico facility that also is the subject of a l
8
[7590-01]
proceeding under Subpart G of this Part for the issuance of an operating license, the Chairman of the Atomic Safety and Licensing Board Panel
)
shall issue an order designating a Licensing Board conducting the operating license proceeding to rule on the request for a hearing and, if necessary, to conduct the hearing in accordance with this Subpart.
Upon certification to the Commission by the Licensing Board designated to conduct the hearing that the matters presented for adjudication by the parties with respect to the Part 70 application are substantially the same as those being heard in the pending proceeding under 10 CFR Part 50, the Licensing Board may conduct the hearing in accordance with the procedures in Subpart G.
6 2.1209 Power of presiding officer.
A presiding officer has the duty to conduct a fair and impartial hearing according to law, to take appropriate action to avoid delay, and to maintain order. The presiding officer has all powers necessary to those ends, including the power to --
(a) Regulate the course of the hearing and the conduct of the participants; (b) Dispose of procedural requests or similar matters; (c) Hold conferences before or during the hearing for settlement, simplification of the issues, or any other proper purpose; (d) Certify questions to the Atomic Safety and Licensing Appeal Board for determination, either in the presiding cfficer's discretion or i
on direction of the Commission or the Atomic Safety and Licensing Appeal l
l Board; 1
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(e) Reopen a proceeding for the reception of further information l-at any time prior to initial decision; (f) Administer oaths and affirmations; (g)
Issue initial decisions; (h)
Issue subpoenas requiring the attendance and testimony of witnesses at the hearing or the production of documents for the hearing; (1) Receive written or oral evidence and take official notice of any fact in accordance with 6 2.743(1);
(j) Recommend to the Consnission that procedures other than those authorized under this subpart be used in a particular proceeding; and (k) Take any other action consistent with the Act and this chapter.
2.1211 Participation by a person not a party.
(a) The presiding officer may permit a person who is not a party to make a' limited appearance in order to state his or her views on the issues. Limited appearances may be in writing or oral, at the discretion of the presiding officer, and are governed by rules adopted by the presiding officer. A limited appearance statement is not to be considered part of the decisional record under 5 2.1251(c).
(b) Upon request, the presiding officer shall afford the representative of an interested State, county, municipality, or an agency thereof, c reasonable opportunity to participate in a proceeding conducted under this Subpart, including an opportunity to make written and oral presentations in accordance with 56 2.1233, 2.1235, without requiring the representative to take a position with respect to the a
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issues. Participants under this subsection may notice an appeal of an l
initial decision-in accordance with 5 2.1253 with respect to any issue 4
on which they participate.
5 2.1213 Role of the NRC staff.
If a hearing request is filed under 9 2.1205(b), the NRC staff shall be a party to the proceeding.
If a hearing request is filed under 9 2.1205(c), within ten (10) days of the designation of a presiding officer pursuant to 5 2.1207 the NRC staff shall notify the presiding officer whether or not the staff desires to participate as a party to the adjudication. Thereafter, upon a determination by the presiding officer that the resolution of any issue in the proceeding would be
' aided materially by staff's participation in the proceeding as a party, the presiding officer nay order or permit the NRC staff to participate as a party with respect to that particular issue.
% 2.1215 Appearance and practice.
(a) Representation by an attorney-at-law is not necessary in order for an individual, an organization, or a 5 2.1211(b) participant to appear in an adjudication conducted under this subpart.
If the representative of an organization is not an attorney-at-law, he or she must be a member or officer of the organization represented.
Upon request of the presiding officer, an individual acting as a representative shall provide appropriate information establishing the basis of his or her authority to act in a representational capacity.
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-(b) Any action to reprimand, censure, or suspend a party, a 9.2.1211(b) participant, or the representative of a party or a 6 2.1211(b) participant must be in accordance with the procedures ini s 2.713(c).
HEARINGS
$ 2.1231 Hearing file, prohibition on discovery.
(a) Within thirty (30) days of'the presiding officer's entry of an order granting a' request for a hearing, the NRC staff shall file and make available to the presiding officer, the applicant, and any other party to the proceeding a hearing file. Thereafter, within ten (10) days of the date a petition for leave to intervene or a request to participate under Q 2.1211(b) is granted, the NRC staff shall make the The hearing file available to the petitioner or the participant.
hearing file also shall be made available for public inspection and copying during regular business hours at the NRC public Document Room in i
In Washington, D.C., and at any appropriate local public document room.
the event no appropriate local public document room exists, the i
{
applicant must make the hearing file available for public inspection and copying during regular business hours at a location in the vicinity of the principal location where the nuclear material that is the subject of the application will be possessed.
(b) The hearing file will consist of the application and any amendment thereto, any NRC environmental impact statement or assessment relating to the application, and any NRC repcrt or any correspondence between the applicant and the NRC that is relevant to the application.
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The presiding officer will rule upon any issue regarding the appropriate materials for the hearing file.
(c) The NRC staff has a continuing duty to keep the hearing file Lp to date with respect to the raaterials set forth in paragraph (b) of this section.
(d) A party may not seek discovery from any other party, 9 2.1211(b) participant, or the NRC or its personnel, whether by document production, deposition, interrogatories, or otherwise.
5 2.1233 Written presentations, written questions.
(a) At such time or times and in such sequence as the presiding officer may establish after publication of a notice of hearing in accordance with 5 2.1205(i) and after the NRC staff has made the hearing file available in accordance with 6 2.1231, the parties shall submit, under oath or affirmation, written presentations of their arguments and documentary data, informational material, and other supporting written evidence. The presiding officer also may, on his or her initiative, submit written questions to the parties to be answered in writing, under oath or affirmation, and supported by appropriate documentary data, informational material, or other written evidence.
(b)
In a hearing initiated under 5 2.1205(b), the initial written presentation of the applicant that is issued a notice of proposed denial or a notice of denial must describe in detail any deficiency or omission in the agency's cenial or proposed denial of its application and what relief is sought with respect to each deficiency or omission.
(c)
In a hearir,9 initiated under s 2.1205(c), the initial written presentation of a party that requested a hearing or petitioned for leave
i _
j 13 (7590-01) i to intervene must describe in detail any deficiency or omission in the f
license application, with references to any particular section or portion of the application ccnsidered deficient, give a detailed statement of reasons why any particular section or portion is deficient 4
-or why an omission is material, and describe in detail what relief is sought with respect to each deficiency or omission.
(d) A party making an initial written presentation under this section must submit with its presentation or identify by reference to a generally available publication or scurce, such as the hearing file, all documentary data, informational material, or other written evidence upon which it relies to support or illustrate each omission or deficiency complained of. Thereafter, additional documentary data, informational material, or other written evidence can be submitted or referenced by any party, other than the NRC staff, or any 5 2.1211(b) participant in a written presentation or in response tc a written question only as the presiding officer, in his or her discretion, permits.
(e) Strict rules of evidence will not apply to written submission under this section, but the presiding officer may, on motion or on the presiding officer's own initiative, strike any portion of a written presentation or a response to a written question that is cumulative, irrelevant, immaterial, cr unreliable.
l S 2.1235 Oral presentations, oral questions.
(a) Upon a determination that it is necessary for the creation of l
an adequate record for decision, in his or her discretion the presiding officer may allow or require oral presentations by the parties or pose questions orally to witnesses. The presiding officer may inpose
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[7590-01]
appropriate time limits on oral presentations and may entertain and pose questions to witnesses proposed by any party or allow a sponsoring party to pose any particular question or line of questions the presiding officer finds are appropriate.
(b) Oral presentations and responses to oral questioning to be relied upon as oral evidence must be given under oath or affirmation.
All oral presentations or oral questioning must be stenographically reported and, unless the presiding officer orders otherwise, must be l
public.
.(c) Strict rules of evidence will not apply to oral submissions under this section, but the presiding officer may, on motion or on the presiding officer's own initiative, strike any portion of an oral presentation or a response to oral questioning that is cumulative, irrelevant, immaterial, or unreliable.
! 2.1237 Consideration of Commission rules and regulations in informal adjudications.
(a) Except as provided in paragraph (b) of this section, any regulation of the Commission issued in its progran for the licensing and regulation of production and utili:ation facilities, scurce material, special. nuclear material, or byproduct material may not be challenged in any adjudication subject to this subpart.
(b) A party to an adjudication subject to this subpart may petition that the application of a Commission regulation specified in paragraph (a) of this section t,e waived or an exception n,ade for the particular proceeding. The sole ground for such a request for waiver or i
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[7590-01]
exception must be that special circumstances exist such that application of the regulation to the subject matter of the proceeding would not serve the purposes for which the regulation was adopted.
In the absence of a prima facie showing of special circumstances, the riresiding officer may not further consider the matter.
If the presiding officer determines that a prima facie showing has been made, he or she shall l
certify directly to the Cemission itself for determination the matter of whether special circumstances support a waiver or an exception. The I
Commission's determinatico shall be made after such further proceedings as the Comission deems appropriate.
% 2.1239 Settlement of materials licensing proceedings.
The fair and reasonable settlement of proceedings subject to this subpart is encouraged. A settlement must be approved by the presiding
)
officer or Atomic Safety and Licensing Appeal Board, as appropriate, in order to be binding in the proceeding.
INITIAL DECISION, C0tEISSION REVIEW, AND FINAL DECISION 5 2.1251 Initial decision and its effect.
(a) Unless the Commission directs that the record bt. ;artified to it in accordance with paragraph (b) of this section, the presiding officer shall render an initial decision after completion of an informal hearing under this subpart. That initial decision constitutes the final action of the Commission forty-five (45) days after the date cf issuance, unless an appeal is taken in accordance with 5 2.1253.
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'i j.
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[7590-01]
(b) The Commission may direct that the presiding officer certify the record to it without an initial oecision and may omit an initial decision and prepare a final decision upon a finding that due and timely l
execution of its functions so requires.
(c) An initial decision must be in writing and must be based only upon infonnation in the record or facts officially noticed. The~racord must include all information submitted in the proceeding with respect to which all parties have been given reasonable prior notice and an opportunity to comment. The initial decision will include --
(1) Findings, conclusions, and rulings, with the reasons or basis for them, on all material issues of fact, law, or discretion presented on the record; (2) The appropriate ruling, order, or denial of relief with its effective date; and (3) The time within which appeals to the decision and a brief in support of those appeals may be filed, the time within which briefs in support of or in opposition to appeals. filed by another party may be filed, and the date when the decision becomes final in the absence of an appeal.
(d) Matters not put into controversy by the parties may not be examined and decided by the presiding officer or the Atomic Safety and Licensing Appeal Board.
If the presiding officer or the Appeal Board believes that a serious safety, environmental, or common defense and security matter exists that has not been placed in controversy, the presiding officer or the Appeal Board promptly shall advise the Commission of the basis for that yhw, and the Ccmmission may take appropriate action.
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[7590-01) 5 2.1253 Appeals from initial decisions.
Parties and 9 2.1211(b) participar.ts may appeal from an initial decisicn under this subpart in accordance with the procedures set out in l
SG 2.762 and 2.763.
l l'
.5 2.1255 Review by the Atomic Safety and Licensing Appeal Coard.
l The Commission authorizes the Atomic Safety and Licensing Appeal l
Board to exercise the authority and carry out the review functions to be performed under si 2.1205(n), 2.1209(d), and 2.1253.
E 2,1257 Review of' decisions and actions of an Atomic Safety and Licensing Appeal Board.
The Commission will not entertain any petition for review of a
. decision or action of an Atomic Safety and Licensing Appeal Board under this subpart. Commission review is available only on the Commission's own motion issued within forty (40) dcys after the date of a decision or action by the Appeal Board under 5 2.1255. Commission review will be conducted in accordance with such procedurcs as the Commission deems appropriate. Absent Commission review, the decision of the Appeal Board constitutes the final action of the Commissicn.
$ 2.1259 Final decision; petition for reconsideration.
(a) Commission or Atomic Safety and Licensing Appeal Board cctica to render a final decision niust be in accordance 6 tith 12.770.
(b) The provisions of 6 2.771 govern the filing of petitions for reconsideration.
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[7590-01]
1 9 2.1261 Authority of the Secretary to rule on procedural matters.
l l
I l
The Secretary or the Assistant Secretary may rule on procedural
{
matters relating to proceedings conducted by the Commission itself under this subpart to the same extent they can do 1.o under 9 2.772 for proceedings under Subpart G.
t 2.1263 Stays of NRC staff licensing actions-and decisions of a
> residing officer, an Atomic Safety and Licensing Appeal Board or the Commission, pending hearing or review.
Applications for a stay of any decision or action of the Cnmmission, a presiding officer, or an Atomic Safety and Licensing Appeal Board or any action by the NRC staff in issuing a license in accordance with 62.1205(1) are governed by 6 2.788, except that any request for a stay of staff licensing action pending completion of an adjudication under this subpart must be filed at the tirie a request for a hearing or petition to intervene is filed or within ten (10} days of the staff's action, whichever is later.
Sr
/
Dated at Washington, DC, this2/
day of hl!h 1987.
For The Nuclear Regulatory Connission.
?
r ha
\\l 4
S AMURUftllX, 7
Secretary of the Commission.