ML20235N472
| ML20235N472 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 02/09/1989 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | Parler W NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| References | |
| REF-10CFR9.7 M890202C, NUDOCS 8903010234 | |
| Download: ML20235N472 (12) | |
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!" NUCLEAR REGULATORY COMMISSION IN RESPONSE, PLEASE h-. W ASHIN GTON, D.C. 20555 O
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- February 9, 1989 OFFICE OF THE SECRETARY MEMORANDUM FOR: William C. Parler, General Counsel FROM: N' 1 J. Chilk, Secretary
SUBJECT:
STAFF REQUIREMENTS - AFFIRMATION / DISCUSSION AND VOTE, 3:30 P.M., THURSDAY, FEBRUARY 2, 1989, COMMISSIONERS' CONFERENCE ROOM, ONE WHITE FLINT NORTH, ROCKVILLE, MARYLAND (OPEN TO PUBLIC ATTENDANCE)
I. SECY-89-003 - Shoreham - Intervenor Motion to Admit New Contention on Medical Services for Contaminated Iniur&d -
Individuals The Commission, by a 4-0 vote, approved an order responding to a pending motion to add a new contention for litigation in the Shoreham proceeding. The order denied the motion.
Commissioner Curtiss did not participate in this action.
(Subsequently on February 2, 1989, the Secretary signed the Order.)
II. SECY-88-357 - Final Rule on Informal Procedures for Materials Licensina Adiuslications The Commission, by a 5-0 vote, approved a final rule which
. provides procedures for the conduct of informal adjudicatory j hearings in materials licensing proceedings subject to the l following:
- 1. The rule should be modified to require that if FRN's of pending actions are issued, they would describe the opportunity for a hearing or reference the regulations under which a hearing request can be made;
- 2. Section 2.1211(b) of the rule should rmiaim, states, localities and other similar entities, at LL L'.me they l}$gf l k, seek to participate, to state with reasonable specificity M the subject matter on which they desire to participate; and ') ,[ ,
- 3. The attached editorial corrections. ,/} /
8903010234 890209 l PDR 10CFR l
PT9.7 PNU i t
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Th'e rule should be modified as noted and returned for signature and publication.
(OGC) (SECY Suspense: 3/3/89)
III. SECY-88-358 - Final Rule on Immediate Effectiveness Procedures and Related Federal Recister Notice on TMI-Related Policy Statements The Commission, by a 5-0 vote, approved a final rule which makes minor changes in the Commission's rules of practice that specify when a license, permit or amendment can be issued following an initial adjudicatory decision resolving all issues. The final rule also deletes outdated language in the existing regulations emanating from the Three Mile Island related regulatory policies upon which action has been completed. The Commission also approved the issuance of an updated policy statement and the revocation of a superseded policy statement relating to requirements imposed after the Three Mile Island accident. The attached modifications should be incorporated into the policy statement.
The revised rule and policy statement should be returned for signature and publication in the Federal Register.
(OGC) (SECY Suspense: 3/3/89)
Attachments:
As stated cc: Chairman Zech Commissioner Roberts Commissioner Carr commissioner Rogers commissioner Curtiss EDO GPA PDR - Advance DCS - P1-124
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NUCLEAR REGULATORY COMMISSION 10 CFR Part 2 Informal Hearing Procedures for Materials Licensing Adjudications ;
AGENCY: Nuclear Regulatory Commission.
ACTION: Final rule.
SUMMARY
- The Nuclear Resulatory Comission is amending 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 inTtd d an interested person, upon request, a " hearing The-Commission previously has determined that the " hearing" provided for a materials licensing proceeding need not encompays all the procedures in NRC CWWMfj regulationsp that govern ..... ] f Wforethe adjudications fM licensing of reactor facilities. Rather, the Commission has determined that, in most instances, an informal hearing with an opportunity to present written views is sufficient to fulfill this requirement. The final rule prescribes the procedures that would govern these informal proceedings.
l EFFECTIVE DATE: Insert date 30 days after date of publication in the FEDERAL REGISTER.
FOR FURTHER INFORMATION CONTACT: Paul Bollwerk, Senior Attorney, Office of the General Counsel, U.S. Nuclear Reo"19+nry Comission, Washington, DC 20555 Telephone: (301)492-1634.
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informal hearing is designed to elfeit infonnation and resolve issues primarily through inquiry by the presiding officer rather than tlirough an adversarial confrontation between the parties. As a consequence, the presiding officer has broad discretion in controlling the manner in which the issues raised by the 3
parties are to be explored.
II. Comments and Comission Responses The Comission received twelve letters of coment representing a broad Pers M -
spectrum of interested 4 : _6 Cementers included private corporations that '
hold NRC materials licenses, a trade association representing companies holding NRC materials licenses, private counsel that represent NRC reactor and materials licensees, public interest groups, a local governmental entity, and an individual member of the public. Seven of the comenters expressed general support for the proposed rules and provided specific comments and suggestions .
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on particular provisions. Three comenters opposed the rules as providing -
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insufficient procedural projections for intervening parties. Two other .
comenters opposed the rules as unnecessarily formalizing the hearing process for materiale licensing adjudications. A review of the specific coments and a the Comission's responses to those comments follows.
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A. General Coments
- 1. Hearing Procedures Are Too Fonnal Several comenters who are materials licensees or who represent materials I
licensees expressed concern that the proposed informal procedures were unnecessary or too formal. One comenter suggested that, given the small number of materials licensing hearing requests received by the Comission over the past several years, the Comission need only continue its present practice.
That practice, which has been in effect since the first informal hearing in the 1982 West Chicago proceeding, is to issue an order in response to each materials licensing hearing request that establishes the procedures governing that informal hearing. The Commission disagrees. Its practice of issuing individual orders has allowed the agency to gain valdable practical experience in conducting informal adjudications, experience that is reflected in the provisions of this final rule. The small number of hearing requests explains in part the delay in the Comission's promulgation of this final rule in that it has taken longer to gain the relevant experience that has guided it in formulating appropriate procedures. However, it ultimately is not a sufficient fuclen&
counterweight to the eeweet observation of the United States Court of Appeals for the Seventh Circuit in its West Chicago decision, 701 F.2d at 645, that the interests of all concerned in the hearing process are better served if the agency formulates regulations that make it clear what procedures will apply to all infonaal proceedings. This is particularly so given the large number of materials licensing actions the Commission takes each year that potentially are subject to hearing requests.
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This comenter also asserted that the proposed informal procedures should ~
not be adopted because the adjudicatory fomat is not sui %d to the resolution of technical questions and, in any event, the existence of two sets of precedures, one for_ informal proceedings and one for formal proceedings, inevitably will lead interveners to complain that their allegations require the use of the more extensive formal procedures. _Regarding the issue of the suitability of " adjudicatory" procedures, the comenter appears to be questioning the advisability of using a trial-type, adversary format, as opposed to more legislative-type, informal procedures, to resolve technical In its proposed rule, .however, the Comission has sought to strike a disputes.
necessary balance between these two poles. Recognizing that interested persons within the meaning of AEA section 189a are statutorily afforded the. status of
" parties" with a^ pa icipate in a hearing, M the rules allow participation though written and, in limited circumstances, oral submissions by l which a challenged licensing action can be supported or opposed. On the other hand, cognizant that these materials licensing hearings need not adhere to the Administrative Procedure Act's (APA) adversary trial model set forth in the formal hearing provisions of 5 U.S.C. 556-557, the Comission has attempted to l-/
enhance the role of the presiding officer as a technical factfinder.Pf$ Upset A
K 8 by giving him or her the primary responsibility for controlling the development of the hearing record beyond the initial submissions of the parties. Further, the Comission does not believe that the mere existence of e i 1/ Because an interested p.;,05 has a statutory right to request and recaive a hearing on those materials licensing actions specified in AEA section 189a, the Comission cannot, as one licensee appeared to suggest, simply decline to convene any materials licensing hearings.
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set of informal procedures will lead to an erosion of the distinction between formal and informal proceedings or lead to undue confusion about when the use of either type of proceeding is appropriate. See generally Sequoyah Fuels Corp. (Sequoyah UF6 to UF4 Facility), CLI-86-17, 24 NRC 489 (1986) (Comission declines to accept presiding officer's suggestion to convert informal hearing toformalproceeding).
- 2. Hearing Procedures are Too Informal In contrast to the coments discussed above, several individuals and public interest groups asserted that the Comission's proposed informal procedures were too " informal." In particular, these comenters decried the failure of the rules to provide for discovery or for wide-ranging cross-examination by parties to'the proceeding.
Parties generally have no right to discovery even in APA "on the record" hearings, unless discovery procedures are authorized by agency regulations.
Further, because the Commission is not required to conduct an APA "on the record" hearing in a materials licensing case, the parties in these cases have no right to cross-examination under the Comission's "on the record" hearing procedures in 10 CFR Part 2, Subpart G. Nor does the Comission believe these measures are necessary to afford the parties a full and fair hearing. Although there is no discovery, the proposed rules do provide that the NRC staff is to create and update a hearing file consisting of the materials relevant to the licensing proceeding, including the application and anv amendments to the application, any environmental assessment or . impact statement, and any NRC report or correspondence between the NRC and the applicant relating to the l
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application ~. In addition, i an oral presentation is found by the presiding n OJA /~/
officer to be Ahe appropriate factfinding vehicle, the presiding officer is N A /
given the authority to pose to witnesses questions that have been suggested by the parties. This is not the type of cross-examination usually associated with l formal adjudicatory proceedings, as is described in more detail in the discussion that follows; nonetheless, it still provides the parties in the context of this more informal proceeding with an opportunity to raise questions with the presiding officer about a witness' testimony.
B. Comments Relating to Specific Provisions of the Proposed Rule
- 1. Proposed 6 2.1201 -- Scope of Proceeding One commenter has raised two concerns about 6 2.1201 of the proposed rule, which describes those materials licensing actio.ns for which informal hearings are provided. This commenter pointed out that in previous instances involving a request under 10 CFR 20.302 for agency. approval of proposed procedures for the disposal of very low-level radioactive waste not covered by 10 CFR Part 61, the Comission has authorized tne use of informal hearing procedares and suggested this does not appear to be covared by proposed 6 2.1201. An authorization under 6 20.302, which is not referred to specifically in 6 2.1201, generally comes about as an amendment to an existing byproduct, source, or special nuclear material license issued under Parts .30, 40, or 70. [
As an amendment for authorization tc- dispose of materials held under an exi.nting materials licenses, rather than a request for a license to operata 0 waste disposal facility under 10 CFR Part 61, this authorization clearly falls within 6 2.1201. The same would be true of various other Part 20 7 :
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NUCLEAR REGULATORY COMMISSION .
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Statement of Policy on Litigation of TMI-Related' Issues in Power Reactor Operating License ~ Proceedings; Revocation of Superseded Policy Statement Concerning TNI-Related Procedures j j
i- 1 AGENCY: Nuclear Regulatory Commission, ACTION:- Policy statement; revocation of policy statement.
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SUMMARY
- The Nuclear Regulatory Commission is-issuing an updated policy. statement on the manner in which the applicant and any intervening I
party to an NRC operating license proceeding can raise a challenge to those requirements imposed upon utilities seeking an operating license as a result of.the March 1979 accident at Three Mile Island, Unit 2. In addition, the Comission is revoking another policy statement relating to requirements imposed after the Three Mile Island accident as superseded by subsequent agency action. -
EFFECTIVE DATE: [ Insert date thirty days after publication in the Federal Register.]
FOR FURTHER INFORMATION CONTACT: Paul Bollwerk, Senior Attorney, Office of the General Counsel, U.S. Nuclear Regulatory Comission, Washington, DC. 20555. Telephone: (301)492-1634.
SUPPLEMENTARY INFORMATION: Following the March 1979 accident at Three Mile Island, Unit 2 (TMI-2), the Comission took a number of regulatory measures designed to provide the appropriate mechanisms for assimilating the_ regulatory changes resulting from THI-2 into the ongoing process for facility licensiny.- "rincipal among these was the Commission's issuance of policy guidance on how the regulatory requ'irements imposed as a result 5 0 Gila s
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4 I .' Comission Policy on Litigation of TMI-Related Issues in Power Reactor Operating License Proceedings Current Comission policy on the appropriate parameters for applicant
'and intervenor litigation of TMI-related issues in operating license proceedings .is set forth in a Comission Policy Statement, CLI-80-42, 12 NRC 654 (1980) (45 FR 85236; Dec. 24,1980). However, the implementation of TMI " lessons learned" and other events have rendered
, much of the background discussion in this 1980 policy statement outdated and confusing. Also, while the Comission previously noted that very few operating license hearings have involved the litigation of these issues (48 FR 13987,13988; Apr.1,1983), there nonetheless are facilities under construction for which certain specific guidance afforded by the policy statement'coeld be pertinent. Accordingly, the Comission has decided to rescind that 1980 policy strtement, but to provide the following supplemental guidance for the litigation of THI-related issues in operating license proceedings: [
In conjunction with existing NRC regulations, the !St of "!-i cloicd di M
-r:g.i.cmen u for new operating licenses found in NUREG-0737,
" Clarification of TMI Action Plan Requirements," can serve as the basis upon which the NRC staff makes a determination about whether an applicant meets the necessary requirements for issuance of an operating license as (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) .
Information Service, 5285 Port Royal Road, Springfield, VA 22161. A copy is available for public ' inspection and/or copying at the NRC Public Document Room, 2121 L Street, NW., Washington, DC.
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th b 4en d e'; 9 :M22(r-073 F p&u
= t: interpret:i, refinsi, or quantif he general language of existing regulations. The parties to a proceeding may challenge the$UICton.ncA. tr esF NUREG-0737,em*mesma as unnecessary on the one hand or n nec#
insufficient on the otherg ...............,7 existing regulations.
Parties to a proceeding, the Licensing Boards, and the Appeal Boards also should heed the additional Comission guidance regarding the litigation of TMI-related issues given in Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-81-5,13 NRC 361 (1981).
II. Policy Statement Relating to Imediate Effectiveness Prior to the Comission's action in November 1979 adopting the now rescinded Appendix 8 to 10 CFR Part 2 (44 FR 65049),2 the Commission's post-TNI policy relating to imediate effectiveness of Licensing Board initial decisions authorizing the issuance of construction permits and operating licenses was set forth in an October 1979 policy statement,
" Interim Statement of Policy and Procedure" (44 FR 58559). This policy 2
The existing Appendix B tt Part 6 " General Statement of h,1;i.y .nd Procedures Concerning Petitions Pursuant to 2.802 for Disposal of Radioactive Waste Streams Below Regulatory Concern," which was issued on August 29, 1986 (51 FR 30839), is not related to this policy statement.
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statement was superseded by the November 1979 action and is hereby formally resy aded b '
Dated at Rockville, MD, this day of , 1988.
For the Nuclear Regulatory Commission.
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/ Samuel J. Chilk, Secretary of the Comission.
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