ML20236E108
| ML20236E108 | |
| Person / Time | |
|---|---|
| Issue date: | 03/20/1989 |
| From: | Martin D NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS) |
| To: | Pay D TECHNICAL INFORMATION PROJECT |
| References | |
| REF-WM-3 NUDOCS 8903230445 | |
| Download: ML20236E108 (13) | |
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1 DM/DPAY W
. l MAR 2 01989 Mr. Donald' Pay Technical-Information Project. i P.O. Box 1371- ;
Rapid City, SD 57709 ,
Dear Mr. Pay:
Enclosed is a copy of a Federal Register notice publishing a final Nuclear " Regulatory-Commission rule on " Informal Hearing Procedures for Materials Licensing Adjudications." j On February 28, 1989, we sent a letter to Senator Larry Pressler which- ; addressed issues you had-raised concerning the decommissioning of the ~ . t l Pathfinder Plant in Sioux. Falls, SD. In that letter we indicated we would , send you a copy of the enclosed final rule after it was published. ' Sincerely, I (06snal Sigeh . Dan E. Martin Regulatory Branch < l Division of Low Level Waste Management' 1 l and Decommissioning ) Office of Nuclear Material Safety I and Safeguards
Enclosure:
As stated j
'l Distribution:
Central File'-# NMSS r/f LLRB r/f DMartin MBell File No.: Docket No. 30 05004, RIV TJohnson JGreeves PLohaus. JSurmeier JDelmedico, OCA WFisher, RIV
- i PDR/NUDOCS Yes -/</ No / /
l ACNW Yes N No / / l 1 SUBJECT ABSTRACT: NOTICE OF FINAL RULE FOR DONALD PAY t 0FC :LLR - lLLR :L RB : NAME: a in/es: ohn on :MBe : .
..___.....__ ..... __ ..._____....__. _______________________________...___ 3 DATE: J/2,9/89.: / 89 :J/p/89: III 0FFICIAL-RECORD COPY 8903230445 890320 PDR WM-3 WASTE PDC b / 4; 4///.M_ Wh/2 3
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Fed:ral R:sistir / Vol. 54, N2. 33] Tuesday,. February 23,1989./ Rules 'and Regulations " 8269 Done at Wuhington DC, this zWday e[ rebeveryfasa affected by a nuclear materiMs licensing femu W. Closser, proceeding. KarrWcGee Corp. (West comments and the Comminalen's V re sponses to those comments foDows. Administrator, AnimalandMantHechh Chicago Rate Earths Facility), CIW la8pection service. 15 NRC 232 (1982). ofl'dsub noat City of ' 'A 0***'*W***"**$* 'N West Ch/ cop r. NRC,701 F.2d 632 7th .< W'M [Mt Doc. sp4623 %d 2-U-40; t45 em] 1, Heating Procedures Are Too Forma! sumo coor me.nas Cir.1963) (both here[nafter referred West Chicop). On July M,1987, the . (to as - date for submitting comments on the . Sevwsl commenters who are . . 1 materials licensees or who repre.-sent NUCLEAR REGULATORY proposed rule was s'xtended to August matedals Ucansus exprosed concera COMMISSION 28,1987 (52 FR 27821). that the proposed informal procedures 10 CFR Pa,t 2 As proposed, b informalhM, were unnecessary or too formal. One
. procedures differ substantially from the e d [
existing regulations in 10 CFR Part s' com{an ed informalHearing Procedures for h Materials Ucensing Adjudication [, 'h,Y ' djuUc sa on o er I d b the -{ ast a veral' years, AotwcV: Nuclear Regulatory Specifically, b pnsiding omcwla to . the Commission need only continue its Commission. receive and to make his or her . ACTION: Final role
- determination based solely upon a {as been in effect since the firstrese
" hearing fue" compusd by b NRC Informalheadng in b 1982 Wasi svuuAmV:The Nucleat Reguletory - staff, which need not be a party to the Ch/cogo Proceeding, is to issue an order' Commission is amending its reguladone proceeding, and writtan presentations by the parties.ners would be no in naponse to each matedals licensing i to provide rules of procedure for the .
hearing request that establishes the , - conduct ofinformal adjudicatory discovery. Only if the presiding omoor rocedures governing thatinformal hearings in rosterf ats licensins found that the written presentations { earing. The Commission disagru proceedings.The Atomic Energy Act of wm ineumcient to create an adequate practice of Issuing individual orde has 1954 requires that the NRC afford an record would oralpresentations be aUowed the agency to gain valuable interested permitted. Any examination of those practical experience in conducting
" hearing," person, upon request, making ain any proceeding oral presentationsfor wouldthebe informal adjudications, expedence that granting, suspending. revoking, or limited strictly by b presiding omcor. is reDected in the provisions of this final amending of an NRC license, including a The type of cron-examination by the rule.The small number of hearing license involving source, byproduct, and parties that generally la permitted in requests explains in part the delay in b special nuclear materials.The formal adjudications would be
' Commission's promulgation of this final Commission previously has determined prohibited, Essentially, the informal -
{ that the " beating" provided for a rule in that it hao taken longer to gain hearing is designed to elicit informadon and resolve issues prhnard thro the relevant experience that has guided materials licensing proceeding need not it in formulating appropriate preadures, encompass all the procedures in NRC inq by b presiding of car ra regulations that currently govern more than ugh an advmarial
. Howsver,it ultimately is not a =Ma=t counterweight to the prudent '
formal adjudications for b licensing of confrontation betwun the parties. As e reactor facilitin. Rather, the consequence, the presl oscar has obemadon of the United States Court 3 Commission has determined that,in of Appeals for the Seventh Circuit in its broad discretionin contro b- West CMeago decision,701 F.2d et ses, most instances, an Informal bearing with mannerin which the issues rafaed by 1 an opportunity to present wdtten views b partin an to be explored, that the interests of alUconcerned in the { is sufficient to fulfill this requirement. - hearingprocess mbetter served if the ' The final rule presedbes the procedures II. Comments and t'e===laam ' agency fortnulates regulations that make Resposses
- it clear what procedures will apply to all tasI would govern these Informal E' C" ^8 Informal procadings.His is
%e Commisslon received twelO ~ . particularly so given the large number of Erncnys OATE: March 30,1988- letters of comment representing a broad materials licensing actions the spectrum ofInterested persons.
POR PUsttNEM INFORMAMON COWrAC?t - , Commlesion takes each year that . Paul Bollwerk, Senior Attorney, Omco Commenters included private .
- potentially an subject to hearing- {j of b Ceneral Counsel, IJ.S. Nuclear corporations that hold NRCmatedals , ' requests, g Regulatory Commission Washington, licenses, a trade association i DC 20555 Telephone:(301) 492-1634. representing companin holding NRC his commenter also asserted that b l proposed informal procedures should SUPPLEMENTARY WP0fusAD0fc materials licenses, private counsel that !
. represent NRC reactor and meteriale - not be adopted because the adjudicatory !
1. Background
licensees, public interest groups, format governmental entity, and an individual a local is not suited to the resolution of
. technical questions and, in anj:
On May 9.1987 (52 W. 20089-20006), member of the public. Seven of b existence of two sets of procedures, one ' the Nucleat Regulatory Commission forinformal proceedings and one for published in the Federal Register commenters expressed general su l for the proposed rules and pro formal proceedings, inevitably will lead ' proposed amendments to its Rules of 4 interveners to complain that their specific comments and suggestions on - j Praclice (10 CFR Part 2) that would particular provisions. Three commenters allegations require b use of the more specify the particular procedures 1 opposed the rules as providing , extensive formal procedures. Regarding applicable to informal adjudicatory the issue of the suitability of l hearings. In accordance with section insufficient procedural projections for " adjudicatory" procedures, the j 189a of b Atomic Energy Act of1954 intervening parties.Two other . ..
, commenters opposed the rules as commenter appears to be questioning 1 (AEA)(42 U.S.C. 2239[s ), informal the advisability of using a trial-type, l hearings are conducted)upon the request unnecessarily formalizing adversary b bearing format, as opposed to more of any person whose laterest may be process for materials licenalns legislative type,Informalprocedures, to adjudications. A review of the specific , resolve technical disputes. In its j
j _ _ _ _ - - - - - - - - - - - - - - - - - - - - - - - ~ - -
7 , C270 Faderal Register / Vol. 54, No. 381 Tuesd:y; F bruary 28,1909 7 kulek tnd Regsla!!5ah proposed rule, however, the Commission ' partiu a full and felt hearing. Although that formal hearing procedures are M, has sought to strike a necessary balance there is no discovery, the proposed rules applicable to those adjudications . between these two poles. Recognizing do provide that the NRC staff is to that interested persons within the instituted in response to a notice of . ; - meaning of AEA section 189a are create and update a hearing file , ' ' - proposed action issued under 10 CFR ., } - conslating or the materials relevant to l statutorily afforded the status of 2.105(a)(7) for "any other license se the licensing proceeding, including the amendment as to which the Commission
" parties" with an opportunity to application and any amendments to the determines that an opportunity for a ~
participate in a hearing 3 the rules allow app!! cation, any enc atal . public hearing should be afforded,"# ' participation though written and, in assessment or impact statement, and - limited circumstances, cral submissions However, as the Commission's West any NRC report or correspondence Chicago decfslon makes clear, the notice by which a challenged licensing action between the NRC and the applicant can be supported or opposed. On the of proposed hearing referenced la other hand. cognizant that these relating to the application. In addition. If I 2.105(a)(7) is one that is issued when an or.tf presentation is found by the the Commission has determined the malerials licensing hearings need not presiding officer to be an appropriate adhere to the Administrative Procedure public Interest requires a formal hearing. aid to fact. finding, the presiding officer West Chic o,15 NRC at 244-46. ../ Act's (ApA) adversary trial model set is given the authority to pose to ' ; forth in the formal hearing provisions of witnesses questions that have been According! , the provision correctly 1.'" 5 U.S.C. 556-557, the Commission has reflects th hearings commenced in suggested by the parties. This is not the attampted to enhance the role of the type of cross examination usually - . response to a notice of proposed action , presiding officer as a technical fact Issued under i 2.105(a)(7) will, in' ' associated with formal adjudicatory accordance with 6 2.700, be conduct'ed . finder by giving him or her the primary proceedings, as is described in more responsibility for controlling the under the formal hearing procedures of
' detailin the discussion that follows: Subpart G.
nonetheless, it still provides the parties '- , development of the hearing beyon theinitialsubmissions record of the in the context of this morn Informal ' . 2. Proposed i 2.1203-Docket. Filing, ' parties. Further, the Commission does ' and Service < proceeding with an opportunf ttto raise . , , not believe that the mere existence of a questions with the presiding otzcer set of informal procedures will lead to - ' Section 2.1203 establishes thei T, ' about a witness' testimony, ' - an erosion of the distinction between administrative requirements for the . , - formal and informal proceedings or lead B. Comments Relating to eci sc ' docket and the filing and service of to undue confusion about when the use p,,,f,f,,, g ,pf,po, ,' . documents in each proceeding. One . of either type of proceeding is ' t. Proposed i 2.1201- Scope of - commenter recommended that the rule. appropria te. See generally Sequoyah set out requirements for documents in Proceeding i . Fuels Corp. (Sequoyah UF8 to UF4 4 terms of size, signatures, numbers of ' , FaclUty). Cth46-17,24 NRC 480 (1986) One Commenter has raised two copies, etc. A new paragraph (c) (Commission declines to accept concerns about i 2.1201 of the. proposed implements this suggestion.De , presiding officer's suggestion to convert rule, which describes those materials provisions of I 2.711 relating to the. ..,,,, . licensing actions for which infonnal . extension and reduction of time limits .
- informal hearing to formal proceeding).
hearings are provided.%1e commenter are referenced in paragraph (d).. -
- 2. Hearing Procedures are Too Informal pointed out that in previous instances his commenter also suggested In contrast to the cominents discussed involving a request under 10 CFR 20.302 this section incorporate the ......:e . y,that :
above, severalindividuals and public for agency approval of pro sed requirements of I 2.712 relating to :
- r interest groups asserted that the procedures for tha disposa f very low, service of documents. %e proposed Commission's proposed informal level radioactive waste not covered by 9 2.1203(d), which leaveallt up to the procedures were too " informal. In to CFR Part 61, the Commission has presiding officer in the first instance to.
particular, thest commenters decried the authorized the use of informal hearing set any rules for service of documents, failure of the rulo to provide for procedures and suggested this does not was intended to add to the informality discovery or for wiManging cron. appear to be covered by proposed of the proceedings. After further I 2.1201, An authorization under J' examination by partle> to the consideration, however, the Commission proceeding, i 20.302, which is not referred to concluin that establishing rules for , Parties generally hsve oc right to specifically in i 2.1201, generally comes routine matters such as docun,ent - discovery even in APA "on the record" about as an amendment to an existing service contributes to the efficient hearings,unless discover' procedures byproduct, source, or special nuclear conduct of the proceeding for both the are authorized by agency regulations, materiallicense issued under Part 30,40, parties and the presiding officer. Further, because the Corzmission la not or 70. As an amendment for Accordingly, the Commission has added required to conduct an / PA "on the authorization to dispose of materials language to that paragraph, which is held under an existing materials s. . sow designatedas e).re ( f erencing the - record" hearing in a mauriaL licensin8 5 case, the parties in thes e cases have no licensee,'rather than a request for a ' - requirements of I 2.712. right to cron examinet4 'n urst ta license to operate a waste disposal factllty under 10 CFR Part si, this' ' 3. Proposed i 2.1205-Request for a ' Commission s "on the record hwarin8 guthcritsuon clearly falls within - Hearing: Petition for lesve to Intervene procedures ln to CFR Pact 2, Subprt G. U1201,%e nme would be true of Dl8 provision, which describes ho'w a Nor does the Commissloa believe Dese vanu e other Part 20 authoHastions, i measures are necessary to afford the request for a hearing or a petition to which nlate to a licenu luned under intervene is to be lodged and treated by l i Part 30,43 or 70.Eg.,20.106(a). the agency, was the subject of a number 8 Decem as totmeted pmoe he a statviaer AMordir(R no specific reference is ] rte %t to request and rusive a Ma *s on thoe* of comments that are discussed below . t regulrvd !n i 2.1201 to cover these according to sobject matter. e $a $ $ c 7a ao' e$R**** authorizations. l
- o. Notico ofmaterials licensing \
oppemd to susgest etmply dochna W convece any This commenter also suggested this actions / timing ofheoring requests. in / aseteriale beansms bannen. provision la too broad because it states the proposed rule, the Commission
e
. Federal R: gist:r / Vol. 54, No. 38 / Tuesday, February 28, 1989 / Rules and Regulations 8271-described its long.stending practice of materials licensing actions through a Islandughting Co. (Shoreham Nuclear - !
limiting Federal Register notice for the Federal Register notice relating to the power Station, Unit 1), ALAB-743,18 j theusands of material licensing receipt of the application or to NRC NRC 337,396 n.37 (1983). On the other l applications it receives annually to environmental findings relating to the hand,it is apparent that whether to those that are significant. For those licensing request (e.g., a negative i prov' :e for further admission of late-applications for which no Federal . declaration of the need to prepare an filed petitions and the terms under - l Register notice is published, proposed environmentalimpact statement). Also, which they will be admitted ultimately l 2.1205(c) provided that a hearing those persons truly interested in a is a matter eommitted to the agency's petition would be considered timely if particular materials licensee's activities discretion. . filed within thirty days after the can keep abreast of pending matters by In most instances, materials licensing petitioner receives actual notice of e periodically contactiryt appropriate NRC actions do not involve substantial licensing action or within one year after bendquarters or regional personnel for bszards to public health and safety, completion of the agency actica, information concerning the license. With After weighing the matter carefully, we whichever occurs first. Section 2.1205(c) these vehicles in place for providing the have concluded that,in the context of also declared any petition filed beyond public with information concerning materials licensing, considerations of this period would be corisidered timely materials licensing actions, the regulatory ficauty counsel that the only upon a showing of exceptional Commission does not be . eve it is Commission place a heavy burden upon circumstances. In response, several necessary or prudent to expend the those who wish to institute e hearing commenters asserted that the agency's substantial additional agency resources proceeding more than six months after notice practice was improper and urged that would be needed to publish notices the agency has approved the applicant's that Federal Register notice be given for in the Federal Register for each of the request for licensing action. Therefore, each materials license application approximately five thousand materials to avoid the litigation of state clata s,in received. Other commenters, principally licensing =ctions the agency takes on meterials licensees or theirlegal lieu of the reference in i 2.1205(c) to the average every year. See NRC1987 grant of a late-filed initial hearing counsel, challenged the provisions AnnualReport at 73. In addition to the petition on a showing of "exceptf 6nal allowing timely hearing petitions to b* staff resources that would be required to circumstances" and the language of filed no to one year after the licensing prepare the notices, the NRC staff { 2.1205(k) that provided for the use of action and permitting subsequent estimates that it would cost in excess of the formal hearing late. filed petition petitions upon an " exceptional one hundred thousand dollars annually factors in i 2.714(a)(1), the Commisalon circumstances" showing. AUowing up to shaply to pay the cost of publishing has substituted new language in one year to file a challenge leaves notices in the Federal Register for all i 2.1205(k).The paragraph now states } licensed activities under an unnecessary these actions. The Commission also that to gain adminion of a late. filed cloud, they assert. Instead, the period finds the alternative notice suggestion for filing should be shortened to 120 request, whether an initial request or a made by one commenter unacceptable. petition to latervene, the requestor or I days or less. Also, they contend, the Slinitar or higher costs to the agency intervenor will have the heavier burden exceptional circumstances provision could be expected if the agency of establishing that (1) the delay in filing should be deleted in favor of a provision published notices in local newspapera. the hearing request or intervention
^
that mandates that after the period for filing a petition expires the appropriate On the related question of the timing petition was excusable; and (2) the grant challenge to a licensing action is to filo a of a hearing request when there is no of the hearing request or intervention petition for enforcement or other Federal Register notice, the Commission petition, which fastitutes a he. ring agrees with the comments that a lesser proceeding to explore the efficacy of the he o knc tinues o e ve period of time may be appropriate for agency's licensing actiory will not cause that it~ present practice te arding accepung headng requests as Emely. undue preNdice orinM to any Fsderal Register notice for materials Balancing the interests of materials participant to the proceeding, including licenmg applications comports with all licensees in prompt closure for potential the applicant and the NRC staff Lf the applicable legal requirements and, under licensing action chauenges against the stafichooses to be a party. Essentially, the circumstances. is appropriate in public interest in aUowing a reasonable the paragraph requires that the terms of the allocation of agency opportunity for " interested persons" to requestor or etitioner demonstrate that posed avail themselves of their section 189a the well-esta lished doctrine of"laches" resources. rule, the Atomic AsEnergy notedAct in the p)oes not would not bar the institution of a , require tlast any notice be given of a hearingearing request to be filed proceeding. inidal for aright,Add we4 tonally, find that allowing this provision an materials licensing action. Civen the Period of six months after a materials has been revised to state that any lack of any constitutional right te a . Iicensing action not noticed in the untimely heating request or intervention hearing in the usual materials licensing Federal Register is appropriate, petition that cannot overcome this case, see West Chicago at 645, the The Commission does not agree with Iaches bar will be referred for Commission does net agree with the ' the comment that any hearing request or disposition e accordance with to CFR argument that there is a general petition to intervene filed after the six. 2.206. constitutional right to notice of the month period should be treated only as Also on the subject of notice, one opportunity for such a hearing.s a petition unde, 20 CFR 2.206. In commentes suggested that the Further, the publication of notices for determining under what circumstances Commisalon clarify the meaning of all materials licensing activities cannot the agency will entertain a late-filed i 2.1205(c)(1) to make it clear that the be justified as a judicious use oflimited petition, consideration undoubtedly first Federal Register notice relating to a agency resources. Under present must be given to the fact that the materials licensing application,- practice, notice is given of sign 11icant hearing provisions in the Atomic Energy including a notice about activities under Act suggest a congressional policy the National Environmental Policy Act, fostering a degree of citizen triggers the thirty. day period within pN, 5rD.N gNn"t$.Imore participation in specified types of which a hearing request must be filed in e.smrium nucleat licensing proceedings. See long order to be timely. The Commission bas
~ ] , . 8 772 Fcdsral Regist:r / Vcl. 54, No. Se / Tusaday, Febtutry 28, 1980 / Rules and Regulethas '
- i d:ne so %e Commission would add upon the standards that are enunciated . Aling of hearing requests, so as not ks t - -
i that, in response to the suggestion of one in i 2.714 for formal adjudications. De " encourage" additional hearing ' ' commenter,it has revised the rule to Co'nmission indicated that b standing demanda.%e Commission disagrees (*, state that for an initial Federal Register decision should be based upon an with this comment because it - notice regarding a particular application analysis of the particular material that misconstrues the purpose oft.'- this C M- 1: . cr licensing action, the notice must was the subject of the licensing action provision. In instances when a Federal , include a statement that the opportunity and not the " fifty.adle redlus" rule that Register notice previously has not been f', for a hearing exists under the had developed with respect to power issued relating to a materials licensing ; 1 procedures set forth in Subpart I, reactor licensing proceedings. (52 FR at action, once a hearing request regarding j la addition, this commenter requested 20000). Several commenters agreed with that action has been received and < that the provisions of 9 2.1205(c)(2) the Commission's rejection of the fifty- granted, it is in the agency's interest to5 ) . concerning " actual notice" be changed mile standard for materials licensing. ensure that only one proceeding need be to indicate that timeliness One commenter went on to enggest that conducted.%e purpose of this provialan < determinations will be based on instead the Commission should create a is to provide constructive notice to all / whether the petitioner either knew or presumption that anyone residing (and interested persons of the date by which .
. should have known of the pending presumably workina) outside of a five. . any further hearing requests must be . ', .
licensing ag,iication or acdon. A finding mile radius of the site where the nuclear filed, thereby cutting off any - ' that the petitioner should have known materials in question are possessed Intervenor's later assertion of timeliness would be based upon such factors as does not have standing.%e based upon lack of actual notice. .... newspaper accounts.%e Commission Commission rejects this suggestion.%e
, 3 Cithg previous lJeensing Board h .' . . '
declines to adopt this suggestion. If a standing of a petitionerin each case practice in individualinformal Federal Register notice has not been should be determined based upon the proceedings, see, e.g4 51 FR 8020; March published, a determination about circumstances of that case as they relate 14.1986, one commenter also sugaested whether and when a petitioner to the factors set forth in paragraph (3). that the rules provide the presiding . .. otherwise had actual notice should be c. Lit /gotion subject matter. At the officar with the authority to require that . based upon the petitioner's particular suggestion of a commenter, the a petition to latervene must include factual situation rather than Commission has added language to particular information on tha i, w, presumptions about what other than paeagraph (g) indicating that in addition intervenor's concerns about the . ... ' Federal Register publication provides to making a standing determination with materials licensing action. like that .. constructive notice, as the commenter respect to granting a hearing petition, or. . required by i 11233 for the intervance's. sesmo to contemplate. Moreover, to aid by reason ofits incorporation in in making that determination the written presentation. %1s type of paragraph (J), an intervention petition, requirement likely is not practicable 1 Commission has, as the same the presiding officer should rule upon under the present regulaton uhama l commenter suggested, provided in whether the petitioner desires to litigate Under the Ucensing Board's practice . ' ; paragraph (d) to this section that the matters that are germane to the request for a hearing should detsu the (which the comments of this and other ' proceeding and whether the hearing ' commenters regarding the creation of a . circumstances that establish, in request is timely. Further in this regard, hearing file make it apparent they accordance with paragraph (c), that the to clarify exactly what information a disliked), the applicant was responsible request is timely. With that information, petitioner must supply in its hearing or as weu as any answer from the for assembling a hearing fue and making intervention request, the Commission it available to potentialintervenors applicant or the NRC staff (if it has revised paragraph (d) to state that "immediately" upon the receipt of the participates as a party), and any the petitioner must provide a concise a dditional informa tion requested from notice granting an initial)aaring , statement of the areas of concern the request. As the Ucensing Board's the participants, a presiding officer requestor desires to raise at the hearing. notices make clear,immediate action ' should be able to make an informed his statement of concerns need not be was necessary to allow additional determination about when a petitioner extensive, but it must be sumclent to intervonors to fue a detaued petition / (which in & case of partnership, establish that the issues the requester corporation, or unincorporated initial written presentation within thirty wants to raise regarding the licensing days. 51 FR at 8021. March 14 tees. As anociation would include its directors, action fall genereUy within the range of is discussed infin, the present scheme officers, and any members duly matters that properly are subject to gives the NRC staff the duty of authorized to represent it) had actual challenge in such a proceeding. It should compiling the hearing fue within tBirty notice. We note that under i 11206(j) be added that a similar requirement has days of the grant'of anlaitialhearing the additional requinment of a showing been provided for thou who wish to request, the same period of time within of timeliness also would ordinatuy request nonparty participation status which any intervenor must file a apply to those seeking to intervene under l 11211(b). petition. It would not be equitable to pursuant to a Faderal Register notice of d Intervention. Section 11206(l) of the require an intervenor to file its written hearing.These interveners would propoud rule states that lf a request for presentation setting fodh allits crdinarily have to show that they did a hearing was granted and no previous concerns without access to the hearing nst have actual notice of the licensing Federal Register notice has been file. Of course, the intervenor is required action prior to the notice of hearing. published, a notice of hearing le to be to identify the areas of concern it wlahes
- b. Stonding. Paragraph (3) of proposed put in the Federal Registee tat, among to raise in the proceeding, which wul i 11205 statu that in determining ~. other things, willIndicate that any . provide the presiding omcar with the whether a particular petitioner has additional hearing requests relating to minimal information needed to ensure standing to participate in an informal the licensing proceeding should be filed the intervenor desires to litigate issues adjudication, the presiding omeer is to within thirty days. One commenter has germane to the licensing proceeding and consider whether the judicial standard suggested that this should be changed therefore should be aUowed to take the for standing le met.The presiding simply to a reference to paragraph (c) of additional step of making a full written.
cmcer's detennination is to be based the same section, which provides for the presentation under i 11233.
8273 Federal Register / Vol. 54, No. 38 / Tue_sday. Feb_ru1ry 28,1989 / Rules and ReguWions _ days of the nouce of h"aringissued
- e. Stafflicensing action during involved and finds that the information under 12.1205(l). By adding these will not be supplied voluntarily.The pendency of a hearing in explaining its issuance of such an order is solely specific provisions relating to the time of proposed rule. the Comrnission declared 6 2.1211(b) participation requests, the within the power and discretion of the that after weighing the private and Commission intends to ensure that all presiding officer. nerefore, contrary to i 2.1211(b) participants becutne involved governmental rights involved,it the commenter's suggestion, there is no concluded it would not require the in the proceeding from its inception, need for the procedures that govern cornpletion of any requested hearing subpoena requests as in formal hearings. thereby maximizing theirfor participation before the NRC staff could take the '"'" "s the possibility later
- 5. Proposed i 2.1211-Nonparty d - '
a pfica t et$on1 1) Participation l
- 6. Proposed i 2.1231-Hearing File memorializes this determination. As in formal hearings, the Although one commenter questioned Commission has provided for nonparty Unique to the informal proceeding is this conclusion, the Commission the hearing file that is required by participation in informal adjudl:ations continues to believe that it has struck by " interested" state and local i 2.1231.That file is to be compiled by '
the appropriate balance, particularly the NRC staff and provided to the governments and by limited appearance since a process has been provided in statements for interested groups and presiding officer, the applicant, and all i 2.1263 whereby the staff's action can Individuals. One commenter protested parties and I 2.1211(b) participants to be stayed.If appropriate. that the statement in i 2.1211(a) that "(a] the proceeding. It is to consist of the Another commenter declared that the limited appearance statement is not to - application for licensing action and any - Commission should revise the language be considered part of the decisional ' amendment to the application; any NRC cf paragraph (1) to indicate that the safety, environmental, or other reports staff, rather than "need not" delay in record"is evidence of the undue restraints being placed upon public relating to the application: and any issuing the license,is obligated to participation in informal adjudications relevant correspondence between the proceed in the absence of a stay.The compared to formal hearings.This NRC and the applicant. Commenters Commission declines to adopt this raised questions about how and when language, however,is merely a sugges, tion.The purpose of this restatement of the practice followed in the file is to be made available to those provisionis to indicate that in the face formal proceedings with respect to involved in the proceeding and about of a hearing request it was permissible the projections that would be afforded ! limited appearance statements. for the staff to proceed to act in a Other commenters suggested that to repdetary and other sensitive particular proceeding if. In its judgment, paragraph (b) concerning participation infocation that documents in the file l the action was appropriate. As indicated by interested state and local . might contain. J previously, the Commission certainly governments be revised to include a mmss a s contemplates that when the staff is able standing requirement and to mandate e to reach a positive conclusion about the that these entities request permission to that providing the NRC staff days safety and environmental consequences participate within thirty days of the of a proposed licensing request,it will grant of a hearing request. The to [reparea the wi impinge andnisungmake the file aval able Ucensing take action despite a pending hearing Commission declines to adopt the first ddng a joint request. The determination about suggestion. As in formal adjudications Board interventionprecuce of req / initial written petition whether or not it is appropriate to under 6 2.715(c), there is no formal pre sentation. See II.B.3.d. s upra. *lte proceed with a particularlicensing " standing" requirement for " interested thirty-day period is retained, subject to. action prior to the conclusion of the state" participation in informal hearings; adhstment by the prisiding officer as proceeding before the presiding officer those state and local governmental the circumstances of a particular case is left to the NRC staff, based on its technical and administrative judgment entities that can demonstrate a may require. cognizable interest in the licensing This commenter also questioned
- 4. Proposed i 2.1209-Presiding Officer's proceeding should be allowed to whether the requirement to make the Powers participate under ( 2.1211(b). See Exxon hearing file "available" te parties and Nuclear Co. (Nucle ar Fuel Recovery and 12.1211(b) participants would mandate One commenter questioned whether two of the powers afforded presiding Recycling Center), ALAB-447,6 NRC 873 that the NRC staff serve the file upon officers by i 2.1209 are appropriate.%e - (1977). them, with the attendant costs in On the other hand, as Commission instances when the file is large.%e first of these is the power under paragraph (d) to certify issues to the . precedent relating to formal proceedings proposed rule did envision that service suggests, interested governmental of the file might be one way to make it Appeal Board. We have concluded it is, for the reasons discussed more fully entities that do seek to come into a .
available, depending on the size of the proceeding generally must comply with file. As the commenter points out, infro. The other is the power to any rules relating to timely intervention, subpoens documents or witnesses See Clevelond Electric l//uminating Co. another we would be to make it afforded by paragraph (h).His is available 1 .To clari'y what is (Perry Nuclear Power P!snt, Units 1 & 2), meant by "ava ble." we have revised improper, the commenter declares, CU-86-20,24 NRC 518 (1986). As a because it would invite discovery paragraph (a) to make it clear that consequence, the Commission has service upon the parties end i 2.1211(b) requests. De Commission does not declaring agree. De purpose of this provision is to added language to i 2.1211(b)deQparticipants and local availability are make it clear that the presiding officer that in instances in which Fe alternauve means of fulfilling this Register notice has been given under requirement. Which method the NRC has the authority under AEA section 12.1205(c)(1), a request for i 2.1211(b) staff chooses undoubtedly will depend 181c,42 U.S C. 7201(c), to issue a subpoena for docurnents or witnesses if, participation must be filed within thirty on the circumstances of the proceeding. in the course of conducting the days of an order granting a request for a This commenter also expressed strong bearing. Alternatively,if no notice has reservations about the proposed rule's proceeding, he or she determines that been issued, the request for tb information is necessary for the full requirement that the applicant would be and fair exploantien of the issues participation must be filed within thirty
l ,. 02N Federal Register / Vol. 54 No. 3e / Tuesday, February 28, 1989 / Rtdes and Regulations responsible for making the fue pub!!cly hearing fue, b Commlulon double that examination of witneues by 5 ' avellable locally. After careful a joint intervention / written presentation nonsponsoring parties.To clarify this M consideration we have decided to shift SHng will be appropriate in snoet matter, the Commisalon has included m this responsibility to the NRC staH, with not languageb in (a)par stating that h J the understanding that if this Instances. See In this regard, ILB.1d. supris, ion the the Commiss hasresponsibili the examination et .
" availability" option is chosen, the file adopted the suggestion of another ' all witnesses rests with the presiding > '
nesd be maintained only through the commenter that the rule contain omeer, who may allow parties to " end of the licensing proceeding. And,if language setting specific time frames propose estions for the witness that m the staff chooses to use serdce as the within which an initial presentation and b prest omcer can pose if the . means of makin the file available to any reply thereto must be filed after the questions are found appropriate. %e & participants in i e proceeding, requests date the hearing fue is made available. for the file by other members of b Commission recognizes that by requiring While the Commission endorses the the presiding officer to make J public do not require that arrangements concept that written presentations for local availability must be made, determinations about the propdety of . .. should be made as promptly as possible. uch question for a witness, an '^ Instead, these requests can be handled the Comminion continues to beneve through the usual NRC process for additional burdec is being imposed that n that the presiding officer will be in the making public documents avauable, best position to set a schedule based could involve delay in the proceeding -' 5-while the parties compose and the The matter of protecting proprietary upon his or her review of the issues and other sensitive information relating pruiding officer decides the propriety of I raised in each hearing petition. %e to a licensing action was raised by questions for each witness. Nonetheless,' Commission also cannot endorse this because oral resentstions should be another commenter. Although the plain commenter's suggestion that langu e language of I 2.790 appears to cover this necessary o y 11. those rare instances in should be added that would direct at which the written presentations leave 1: sue for materials bcensing the submission of written presentations ' proceedings, to eliminate any ambiguity unresolved issues that the presi - should not await the complet% of an officer finds can be decided only in this regard we have included a NRC etafisafety or environm.utal ' y having oral presentations, and because - reference to that provision in i 2.1203(a). anal sis that is being prepared relative pro osed questions undoubtedly can be
- 7. Prop to th licensing appucation. Again, this pre led in many instances, the p,,,osed ,gi 2.1233-Writtet. , is an issue best left to the discretion of the presiding oscar,%e Commission Commission expects these procedural .
An important difference between the notes, however, that because the NRC requirements to be manageable. informal heerin provided for in Subpart etaff can take a licensing action prior to On othe commmu quatloud . 1.and the forma proceeding conducted pan under Subpart C is the written the completion of a hearing on the
'.I' 8 re, presentation outlined in l 2.1233 %e application, ay dela in the hearing . . . alus(%'7,' t miding omeu &s that might be caused y awaiting a staff Commission contemplates that in the safety or environmental evaluation otherwise, must public,"is designed vast majority of cases these would not necessarily translate into a to ve a pdng omen more ladu e presentations and follow.up written delay in license issuance, to old nonpublic informal hearings than questions, rether than an oral hearing Finally, one commenter suggested that is provided for formal adjudications before the presiding officer, will be the opcific langu e be added to are ph under Su art G. In fact, there was no .
vehicle by which the parties and an (r:) to indicate at applicants ave inten h a at als proWein be 12.1211(b) participants are heard d right to file a re y to the written substantively different from i 1.751. the issues resolved. presentation of one parties who which governs formelheariAss. To avoid Comroenter concerns about this challe the requested licensing action. an ambigulty, the Commission has provision centered on issues of timing. While e right of an applicant, as a ad edlanguage to aragraph (b) to that is, when will written presentations party to the proceeding. to file a written make it clear that a section paraHels be required to be submitted. Section i 2.781. presentation is implicit in the language 2.1233 as proposed atated that the timing of pa ph (a), b Commission has and sequence of these presentations is g. Proposed i 2.1251-initial decision adde tionallanguage to that to ba set by the prest officer after paragraph clariflying Two commenters raised questions ambiguity, no any notice of hearing an after the NRC sequence and timing o at submission . about i 2.1251, which specifies that aker staff has made the hearing file avausble completion of the informal writtsn and, remains in the discretion of the to the parties. One commenter suggests preiding omoer. if necessary, oral presentations, a that h rovision be reworded to make presiding officer must render an initial it clear at an order establishing h g. Proposed i 1.1235-Oral pusenta@ns decistoi unless the Commission schedule for written submissions may . chooses to undertake that task itself by be issued before the end of b - la the event that the written having the record certified to it. One { day patiod that the staff has to ma the ' presentations afforded by 8 2.1233 and commenter suggested that, as with - 4 hearing fue avausble. %e commentar b responses to written questions posed 12.764, there should be language making repeats its plea that this la necusary to by the presiding officer prove to be the initial decision immediately effective aUow for b continuation of the inadequate to resolve the issues raised, so as to authorize the NRC staff to take Licensing Board practice of having the presidig officeris given the the appropriate licensing action. Section intervention petitions include the l discretion to allow or require the parties 3.1205(1), which authorizes the NRC I information required for the laitial to make oral presentation.%ese staff to take a requested licensing action written presentation. The Commission presentations may inr.lude the testimony without regard to an pending hearing adopts the suggested wording change. of witnesses. Commenters expressed request,endoubtedl willprovide the As indicated previously, however, concern that the language of I 2.1235 did functional equivalent of an effectiveness i oscause the NRC staff rahr than the not make clear b parametare under provision in many instances. The omlicant le now responsible for which oral presentations were to be possibility exista, however, that the staff compiling and making svallable tLa allowed, particularly with respect to - will not yet have taken any action or,if I I 1
i j Fedtral Reglst:r / Vcl. 54, No. 38 / Tuesday, February 33. 1989 / Rules and Regulations 8275 l the atafthan acted, the presiding materials licensees. As a result, the Regulatory flexibf!!ty Certification v ' I officer's determination may include Commission has decided to retain - vJ
/ Ucense conditions that were not Appeal Board initial review of presiding ne finalrule willnot have a ,
( imposed by the staff. In these instances, officer decision, subject thenafter to sua significant economic impact upon a-it would be appropriate for the presiding sponte Commission review. substantial number of small entities. ! cfficer's decision to become Many materials licensees or interveoors l Immediately efrective so as to authorize C. Addit /onalComments the staff to take the sp priate fall within the definition of small l One commenter made two additional businesses found in section 34 of the licensing action proru . Accordingly, suggestions. De commenter suggested Small Business Act,15 U.S.C. 632, or the ' ) the Commission bas a ed paragraphs ) (e) and (f) to l 2.1251 t,o Indicate that the that the materials licensing rule conta!n Smau Business Size Standards set out in I presiding officer a decision will be - a provision regarding burden of proofin regulations issued by the Small Business I the proceeding and a provision on Administration at 13 CFR Part 12t or t g e sought a d a edin motions procedures. ne Commission the NRC's size standards published accordance with 12.1263, hae included a new 12.1237 that would December 9,1985 (50 FR 50241). While A second commenter suggested that incorporate the appropriate provisions the final rule would reduce the litigation, the time within which an trutf al decision of Subpart G relating to these matters. cost burden upon licensees or will become final agency action, absent EnvironmentalImpact: Categodcal mm because ne Wormal an appeal, should be thirty days rather Exclusion - nature e hea&g. Se aquinment than the forty.five days specified in the . that they submit filings and proposed rule.%e Commission agrees %e NRC has determined that this ' documentary information detailing l with this proposal aragraph (a) has final rule is the type of action described contested legal and factual issues is still j been revised acco y in categorical exclusion 10 C.FR required. Some cost reduction in '
- 10. proposed il 2.1253 .1257- Agency 51.22(c)(1).nerefore, neither en ' comparison to the cost of participating AppeUate Review of a Presiding envir nmentalimpact statement not an in a fortaal adjudicatory hearing can be Officer's Determination environmental assessment has been anticipated. although it is problematic -
prepared for this final rule. whether that reduction as a whole will Under i12.1253 .1257 of the proposed rule, parties and i 2.1211(b) partici ants Paperwork Reduction Review the use of be significant. informal procedures CertaltdyN wi not incname I an app al s f htt the Atomic We anal rule catains no informadon signincandy 6e burden upa ucensees l Safety and 1.icensing Appeal Board, as collecdon requirements and therefore is to respond to hearing requests. %ua, in ' they do under the existing practice for not sub}ect to the requirements of the accordance with the Regulatory Paperwork Reduction Act of 1980 (44 j formal adjudications. Several Flexibility Act. 5 U.S.C. 605(b), the NRC ( commenters criticized this provision as U.S.C. 3501 et seq.). certifies that this rule does not have a i \ bringing an unnecessary and overly Regulatory Analysis signincant ecuomic impact upu a l formal step into the informal hearing substantial number of small entities. I process. One commenter recommended %e Atomic Energy Act affords that any review be limited to interested persons the right to a hearing Backfit Analysis Commission <onducted sua sponte regarding a materials licensing consideration of the presiding ofDeer's proceeding. As the Commission ne finalrule does not modify or add decision to determine whether there previously indicated in its West Chicago to systems, structure, components, or were any errors that require correction, decision,15 NRC at 241, the use og design of a faculty; the design approval for those informal materials licensing informal procedures involves less cost or manufacturing licenne for a nuclear hearing proceedings convened since the and delay for parties and the reactor faculty; or the procedures or West Chicago proceeding, the only Commission than the use of formal, trial. organization required to de:Ign, appellate review provided has been a construct, or operate a facility, type procedures, the only other . Commission sua sponte review of the presiding officer's decision, such as is procedural alternative. Also, procedures Accordingly, no backfit analysis suggested by the commenter. As a result must bs in place to allow for orderty pursuant to to LFR 50.109(c) is required conduct of those adjudications, for this final rule, o on as concfu th t t e *
,, gor me et. List of Subjects inho CF2 Part 2 interest of all parties is better served if " I"8 the Appeal Board is given the trdtlal pmceedm.gs in pMferaNe to e's m4-Administrative practice and opportunity to consider any arguments een shunaun, which is the pM procedure Antitrust, Byproduct concerning errors in a presiding officer's praedce of estaWahing es pmoeduns material, Classified information, legal or factual findings relating to a to be followed on a case by. case basis.
By codifying the procedures, the Environmentalprotection Nuclear particular licensing action.%e Appeal materials Nuclear power plants and Board, whose princJpal function is the Commission wiD avoid the expenditure reactors, penalty, Sex discrimination, review of adjudicatory records in formal of time and resources necessary to Source material, Special nuclear licensing matters, generally is in as good pMpare the individual orders that a position as the Commission to provide previously have been used to designate material, Waste treatment and disposal. a thorough, prompt, initial appellate those procedures. it thus is apparent For the reasons set out in the . review of individualinformal that this final rule is the preferred preamble and under the authority of the adjudicatory decisions, as we!! as alternative and the cost entalled in its Atomic Energy Act of1954, as amended, interlocutory certified questions, thereby promulgation end appucation is the Energy Reorganization Act of 1974, freeing Commission resources for the necessary and appropriate.%e as amended, and 5 U.S.C. 552 and 553, ( consideration of broader polley tr.atters foregoing discussion constitutes the the NRC is adopting the foDowly relating to reactor facilities and regulatory analysis for this final rule, amendments to 10 CFR Put 2:
, 258 Fed:rd Regist:r / Vol. 54 No. 38 / Tuesday, February 28, 1989 / Rules and 'Regulatirna PART 2-RULES OF PRACTICE FOR e c. -
DOMESTIC UCENSING PROCEEDINGS 11:30 Consideration of Comminion mies (b) Documents are !!!ed with the
""d 8"h d *"* I" '"I"*I Office of the Secretary in adjudications De authority citation for Part 2is d) d subject to this subpart either .
{ M ed to res a follows., atui Idal bM . on,Conin M on N MW W M4 d . Service Branch of the Office of the Authority. Secs.181.1st, 88 Sta t. 944, 963. as amended (42 U.S.C 22o1. 2231); sec.191. as I"g y ,and Secretary at One White Flint North, , emended, Pub. L $7-415,78 Stat. 400 (42 11251 Inidel decislon and its eNect. 11555 Rockville Pike. Rockville MD UAC 2241): sec. 201,88 Stat.1242, as 2.1253 Appeals from initial decisions. 20852 or . amended (42 USC SM1): 5 U.S.C 551 2.1258 Review by the Atomic Safety and (2)By mallor telegram addressed to Section 2.101 also luued under secs. 84,62 Ucensing AppealBoard, the Secretary, U.S. Nuclear Regulatory 63,81,103,104,105,68 Stat. 930,832. 933, ess, 2.1257 Review of decisions and actions of Commission. Washington, DC 20656, 936. 937,938, as amended (42 USC 2073, an Atomic Safety and mensing Appeal 2002,2003,2111. 2133,21M. 2135); sec,102. IO*'d. Attention: Docketing and Service 125 e n;poddos for Branch.< Pub. L F1-190,83 Stat. 853, ea amended (42 USC 4332); sec. 301, se Stat.1248 (42 UAC Filing by mad or telegram is complete
- 5871). Secuons 2.102, 2.103. 2.104, 2.106, 2.721 11281 Authority of the Secretary to rule ce as of the tima of deposit in the mall or also luued under aca.102.103,104,106,183. procedure] matters. with the telegraph company. Filing by 140, es Sta t. 936,937,938,954,968, as 112e3 Stays of NRC steFlicensintactions other means is complete as of the time or of decisions of a preelding omcer, an of delivery to the Docketing and Service 3
c'tf 2.10 e sois ued Pub. L 97-415,96 Stat. 2073 (42 UAC 2339. [^ o In
'C bearing or review' ,
e e e Se tary, (c) Esch document submitted for filing Sections 2.200-2.20e also fasued under sea). in an adjudication subject to this part, 186, 234,68 Stat. 955, 83 Stat. 444, ea amended . (42 USC 2236,2282); sec. 206, as Stat.1240 other than an exhibit, must be lesibly Subpart I.,-Informal Hearing typed, must bear the docket number and (42 USC Ba4e). Secuens 2.eoo-2.coe also Procedures for Adjudications in issued under sec.102. Pub. L 91-100,83 Stat. the title of the proceeding, and,ifit is a53, a amended (42 UAC 4232). Sections Materiale Ucensing Proceedings the first document filed by that 2.700s. 2.719 also issued under 5 U.S.C sa4- participant, must designate the name Secdons 2.7H. 2.reo, 2.770, 2.rao s!so inued g 2,ttot scope et sunpert, and address of a person upon whom under 8 USC 537, Section 2.764 and Table
%e generalrules in this subpart service can be made.De document also
"' must be signed in accordance with 38.14 97 2 Stet 22 8 ' y ad udication USC 10155,10181). Section 2.750 also inued 1(42 [UstNedurein * "S "" #* "#i"I " ' ~ C0ff88Pondence, i 2.700(c). A document, other than must be filed in an under uc.103. es Stat. 936, se amended (42 procee for the grant, transfere renewal. licensee-initiated original and two conforming copies.
USC 2133) and 5 USC. 552. Secdons 2.400 and 2 Joe also issued under 5 USC 883, amendment of a materiallicense. subject Documents filed by telegram are { Section 2. sos also issued undet 8 UAC 563 to Parts 30,32 through 35,39,40, or 70 of govuned by 5 2.706(l). A document that and ac. 29. Pub. L 85-256,71 Stat. 879, as this chapter. Any adjudication regarding falls to conform to these requirements amended (42 USC 2039). Subpart X also a materials license subject to Parts so, may be refused acceptance for Aling and lesued under uc. tes, as Stat e66 (42 UAC 32 through 35,39,40, or 70 that is may be returned with an indication of 2239); sec.134. Pub. L 97-425, 96 Stat. 2230 the reason for nonacceptance. Any (42 UAC.10154). Subpart L also issued under initiated by a notice of hearing issued. document tendwed but not accepted for sec.180,66 StaL 965 (42 U.S.C. 2230 under i 2.104, a notice of proposed Appendix A else issued under sec. a). action under i 2.106, of a request for filing may not be entered in the docket,
. Pub.L hearing under Subpart B of10 CFR Part el-Sec. 44 Stat 1473 (42 UAC 21361 Appendix B also issued under sec.10, Pub. L 2 on an order to show cause, an order and )reauction of timIllmits is done in(d 96 240. es Stat 1642 (42 USC 2ntib et seq.)' for modification oflicense, or a civil accedance wie H 2.71M1.
penalty,is to be conducted in (e) A request fo'r a hearing or a
- 2. Subpart 1 of Part 2 is added to road' accordance with the procedures set petition for leave to htervene must be as follows: forCa in Subpart G of10 CFR Part 2, semd in accedences with 12.712 and i 11206(e). j). All otLer documents SQbpart L-Mfortnal Hearing Precedures . $11303 Decket;fulng;servloe, issued by th(e presiding ofBcer, the for Adjudication in Malwtate Ucensing (a)De Secretary shallmaintain a Proceedings Atomic Safety and I.icensing Appeal docket for each adjudication subject to , Board, or the Commission or offmd for g this subpart, commencing with the filing filing are served in accordance with 2.1201 Scope of subput. '. of a uest for a hearing. All papers, l 2,712. .~
2.1203 Dochet: filing; service. inc! any request for a hearing * . 2.1206 Request for a bearing petition l'or petition r leave to intcrvena. ' . $2.1306 R t % % petum
- lun to internoe. correspondence, exhibits, decielona, 'and %, g gg,,,,,
11207 Doisnadon of presiding ofBcer. ordere, submitted or lesued in the 11200 Power of preelding omcer. (a) Any person whose intmet.may be proceeding; the hearing file compiled in affected by a proceeding for the grant,
- 11211 Participation by a person not a party, accordance with l 2.1231; and the transfu, renewal, or licensee-initiated 2.12t3 Role of the NRC staff. transcripts of any oral presentations or 11215 Appearance and practice. amendment of a license subject to this oral questioning made in accordance subpart may file a request for a hearing. 1 Heartage . with 6 2.1235 or in connection with any (b) An applicant for a license, a ~
11231 Hearing file: prohibidae on epPeel under this subpart must be filed license amendment, a license transfer, disconry with the Office of the Secretary and 11233 Written pruentations; writtes or a license renewal whois lasued a j must be included in the docket. De notice of proposed denial or a notice of qua dons, public availability of official records denial and who desires a hearing shall I 11235 Oral pruentaHons; oral queedona. relating to the proceeding is governed by file the request for the hearing within I 11237 Modone; burden of proot i 1790. j
, the tirne specified in i 2.103 in all cases.
i. Federal Register / Vol. 54, No. 38 / Tuesday, February 28, 1969 / Rules and Regulations 8277 ? (c) A person other than an applicant judicial standards for standing and shah matters set forth in paragraph (3) of this shall file a request for a hearing consider, among other factors- section, ( withlm (1) The nature of the requestor's right (4)If the petition le granted, the (1) Thirty (30) days of b agency's under the Act to be made a party to the petitioner becomes a party to the - publication of the (tuttal Federal proceeding proceeding. - d-Register notice referring or reja ting to an (2)%e nature and extent of the (k)(1) A request for a hearing' or s' application or the licensing action requestor's property, financial, or other petition for leave to intervene found by requested by an application, which must interest in the proceeding: and the presiding officer to be untimely . include a reference to the opportunity for a heanng under the procedures set tha(3) t maynebepossible entered ineffect of any order under the proceeding paragraph (c) or Q)will be entertained only upon determination by forth in this subpart: or - upon the requestor's interest. the Commission or the presiding o! Boer (2)If a Federal Register notice is not (b)If a hearing request filed under that the requestor or petitioner has published in accordance with paragraph paragraph (b)of this sectionle nted. established that-(c)(1), the eariier of- the applicant and the NRC staf allbe (i) % delay in filing the request for a (i) Thirty (30) days after the requestor hearing or the petition for leave to receives actual notice of a pending parties to the proceeding. lf a haar4 request filed under paragraph (c) of stus intervene was excusable; and - application or en agency action granting section is granted, the requestor shall be (11)The grant of the request for a en application; or a party to the proceeding ajo with the hearing or the petition for leave to (ii) One hundred and eighty (180) days plicant and the NRC staff, the staH , intervene will not result in undue after agency action granting an akooses or is ordered to participate asprejudice a e or undue injury to any other Party In accordance with I 2.1212. participant in the proceeding, including (d) be request for a hearing filed by a (i)If a request for a hearing is granted licant and the NRC staff,if the i person other than an applicant must the staff cop$ooses or is ordered to participat and a notice of the kind described in e er f the requestorin the paragraph (c)(1) previously has not been as a party in accordance with 3 2.1213. , (1 roceedi published in the Federal Register, a (2)If the request for a heartng on the n Uce f hearing must be publishedin (2) How that interest may be affected petition for leave to intervene is found by the results of the proceeding, the Federal Register stating- to be untimely and the requestor or . I including the reasons why the reiuestor (1) The time, place, and nature of the petitioner fails to establish that it . l hearing; i should be permitted a hearing, with otherwise should be entertained under particular reference to the factors set (2)The authority under which the paragraph (k)(1) cf this section, the hearingis to be held: request or petition will be treated as a l out in paragraph (g) of this section:
- 3) The requestor's areas of concern (3)The matters of fact and law to be petition under 12.206 and referred for l
( ab(out the licensingo activ y that is coneidered: the appropriate dispoeltion. j subject matter of the proceeding: and (4) ne time within which any other (1)The filing or granting of a request (4) W circumstances establishing Person whou interest may be affected for a hearing or petition for leave to that the request for a hearing is timely In by the proceeding may peution for leave intervene need not delay NRC staff accordance with paragraph (c) of this to latervene, as specified in paragraph ution regarding an application for a section. 0) of this section: and licensing action covered by this subpart. ) (e) Each request for a bearing must be (5) The time within which a request to served, by delivering it personally or by Participate undet i 2.1211(b) must be he(aring or a peution forleave. tom) An or mail to-- med. intervene may conditioryorlimit ) (1) The applicant (unless the requestor 0) Any petition for leave to intarvene participation la the'laterest of evoldlag j is the applicant): and must be filed within thirty (30) days of repetitive factual presentations and I (2) The NRC staff, by delivery to b the date of argument. Executive Director for Operations, One hearing. &petitionpublication must setofforth thethenotice (n)1f of the presiding o! Beer denlee a White Flint North,11555 Rockville Pike, information required under paragraph request for a hearing or a petition for Rockville, MD 20852, or by mall (d) of this section. . leave to intervene in its entirety, the addressed to the Execudve Director for (1) A petition for leave to intervene action is appealable within ten (10) daye Operations, UA Nuclear Regulatory must be served upon the applicant.no of service of the order on the question Commission Washington, DC 20555. peution also must be arved upon the whether b reqyest for a hearing be the (f) Within ten (10) days of service of a NRC staff- peution for leavd to intervene should request for a hearing filed under (i) By delivery to b Executive have been granted in whole or in part. lf paragraph (c) of this section, b Director for Operations, One White Flint a request for a hearing or a petition for applicant may file an answer.%e NRC North,11555 Rockville Pika, Rockville, leave to intervene is' granted, parties staff,if it chootes or is ordered to MD 20652; or . other than the requestor or petitioner participate as a party in accordance (LI) By mail addressed to the Executive may appeal that action within ten (10) with I 2.1213, may file an answer to a Director for Operations, UA Nuclear days of service of the order on b request fcr a hearing within ten (10) Regulatory Commission, Washington, question whether the request for a days of the deelgnation of the presiding DC 20585, hearing or the petition for leave to officer, (2) Within ten latervene should have been denied in its (glin ruling on a request for a hee-ing petition for leave (10) days to intervene, the of service entirety.of An a appeal may be teken by l filed under paragraph (c) of this section, applicant and the NRC staff,if the staff ft!!ng and serving upon all parties a the presiding officer shau determine that chooses or is ordered to participate as a statement that succinctly sets out, with the specified areas of concern are party in accordance with 6 2.1213, may supporting argument, the errors alleged. germane to the subject matter of the file an answer. The appeal may be sup ed or ( proceeding and that the petition is (3) Thereafter, the petidon for leav's to opposed by any party filing a timely. The presiding officer also shall intervene must be ruled upon by the counter. statement wit in fifteen (15) determine that b requestor meets the presiding officer, taking into account b days of b service of the appeal brief.
u ] 8278 FedIrel Register / Vol.'54. No. 38 / Tuesday, Eebruary'28,1980 / Ritze an'd Regu'lations 1 i..
$ 11207 Designation of presiding ofnser. (g)Issueinitialdecialone; % 2 b' (a)Unless otherwise ordered by the (b) Issue subpoenas requiring the oMoor whebt or not b staff dwiru Commission or as provided in paragraph attendance and testimony of witnesses to participate as a party to the (b) of this section, within ten (10) days at b hearing or b production of . adjudication.In addidon, upon a of receiving from the Office of the determination by the presiding oscar Secretary a request for a hearing documents for the hearing;l that the resolution of any luue in the evidence' (i) Receive written or ora - proceeding would be aided materially -
relating to a licensing procuding and take omcfal notice of any factin covered by this subpart, the Chairman by staff's participation in the proceeding accordance with 51743(i); as a party, the presiding officer m'a y of the Atomic Safety and Ucensing (j) Appoint special assistants from the offer or permit the NRC staff to ' ' Board Panel shat!luus an order . Atomic Safety and Ucensing Board designating a single member of the Panelin accordance with 4 2.722; pardcipate as a party with respect to _' panel to rule on the request for a hearing that particularissue. ' ' l and,if necessary, to serve as the . (k) Recommend to the Commission *~ t that procedures other than those 1 presiding omeer to conduct the hearing. authorized under this subpart be used in. $11215 Appearance and practice (a) An individual may appear in an' (b) For any request for hearing j a particular proceeding; and adjudication under this subpart on his or relating to an application under 10 CFR (1) Take any other action conststent l her own behalf or by an attorney at. law. Part 70 to receive and store unirradiated with the Act and this chapter. l fuel at the site of a production or Representation by an attorney.at-law is 4 utilization facility that also is the subject f 112H Participa6cn by a peon not a- not necessary in order for an - j of a proceeding under Subpart G of this . 8""Y' - organization or a l 2.1211(b) participant Part for the issuance of an operating (a) The presiding officer m.ay permit a. to appear in an adjudication conducted ' ' l license, within ten (10) days of recelving person whois not a party to make a under this subpart,if the representative 1 from the Office of the Secutary a umsted appearance in order to state his cf an organization is not an atterney-at. I request for a hearing the Chairman of or het views on the issues. Limited law,he or she shan be a member or the Atomic Safety and Ucensing Board appearanen may be in writing or oral
- omcer of the organization represented. '
Panel shall issue an order designa ting a at the disention of the pmsiding omcar, Upon request of the presiding officer, as ) Ucenslag Board conduc the . and are governed by rules adopted by individual acting as a representative
- operating license procee to rule on - the presiding officer. A lindted shall nrovide ap the request for a hearing an if appearance statement is not to be utabhhlg b $repriate information asis of his or her necessary, to conduct the hearing in considered part of the decisional tecord authority to act in a representational accordance with this Subpart. Upon . capacity, under i 2.1281(c).
certification to the Commission by the (b)Within thirty days of an order (b) Any action to reprimand, censure, Ucensing Board designated to conduct granting a request for a hearing made or suspend a party, a i 2.1211(b) ' the hearing that the matters pruented under i 2.1205(b c) or,in instances participant, of the representative of a for adjudication by the parties with when it is publis ed, within thirty days or a l 2.1211(b) participant must respect to the Part 70 application are of a notice of hearing luued under in accordance Wh b proedura in 4 substantleUy the same as those being i 11206(l), the representative of an i2.712(c)* *- l
-r' t heard in the pending proceeding under interested State, county, municipality, or Hearings "-
to CFR Part 50, b Ucensing Board may an agency thmof, may mquest an . conduct the hearing in accordance with opportunity to participate in a g g,, g ,, the procedures in Subpart G. Proceeding under this subpart.%e dwwy' i L1200 power of presiding otnoer, request for an opportunity to participate (a) Within thirty 30) days of the must state with reasonable specificity Presiding omcer's e(ntry of an order A presiding officer has b duty to the mquator's amas of concern about
- conduct a fair and impartialhearing Ilanting a mquat fos hearing, the the licensing activity that is the subject MC staff shall file in'the docket, . -
according to law, to take appropriate ar. tion to avoid delay, and to maintain matter of the proceeding. Upon receipt Present to the presiding oscar, and of a request that is filed in accordance make available to the applice.nt and any ctdet. ne presiding officer has all with these time limits and that specifies othe_rparty to the proceeding a hearing. powers necessary to those ends, the requestor's areas of concern, the Including b power to-- file. Thereafter, within ten (10) days of . presiding officer shaU afford the. . the date a petitico for leave to intervene (a) Regulate the course of the hearing and the conduct of b participants: spruentative a reasonable opportunity or a request to participate under . to make written and oral presentation,a i 2.1211(b)is granted, the NRC staff (b) Dispose of procedural requesta or sirnilar matters; in accordance with ll 2.1233 and 2.1235, shall make the hearing file available to without requiring the repreuntative to the petitioner or the i 2.1211(b) - the(c) Hold conferences before or during take a Participant. hearing for settlement, simplification inun. position with under Participants respect thisto the of the issues, or any obt proper (1)ne hearing Ble must be made Purpose; subuction may nodoe an appealof an available to the applicant and any other (d) Certify questions to the Atomic initial decision in socordance with Party or i 2.1211(b) participant to the Safety and Ucensing Appeal Board for I 2.1253 with respect to any lasue on Proceeding either by- - . which by participate. determination, eitherin the presiding . (1) Service I 2.1203(e); or in accordance with] . - cmcer's discretion or on direction of the i3.1218 Mok of the N Aaft = Commission or the Atomic Safety and if a hearing request le filed under loc l(a)public document room in theii Plac Ucensing Appeal Board: l1.1205(b), the NRC staff shall be a - - (e) Roopen a closed record for the vicinity of the principallocation where party to the proceeding. lf a hearing nuclear material that is the subject of a reception of further information at any request is filed under 3 2.1206(c), within time prior to initial decision in proceeding under this subpart wiU be
' ten (10) days of the designation of a possessed. and informing b appucant, accordance with 6 2.734:
presiding officer pursuant to l L1207 the party, or l 2.1211(b) participant in (f) Administer osthe and amtmations: NRC staff shaU notify the presiding writing ofits action and the location of
i l'ederal Register / Vol. 54. No. 3a / Tocsday, ir bruary e 23. W3G / Rules and Regulations
't _ 0079 the file. lf an established local public or times and in the sequence the oral presentations by any party or document room does not exist, the NRC presiding officer establishes by 9 2.1211(b) participant, including staff will arrange for the documents appropriate order. The presiding officer testimony by witnesses. Oral contained in the hearing file, along with also may, on his or her initiative, submit presentations are subject to any
, any other material docketed in written questions to the parties to be appropriate time limits the presiding accordance with I 2.1203, to be made answered in writing, under oath or officer imposes. Responsibility for the as allable for public inspection and affirmation, ard supported by conduct of the examination of any copying during the course of the appropriate documdary data, witness rests with the presiding officer adjudication in a library or other facility informational material, or eher written who may allow a party or 12.1211(b) that is accessible to the general public evidence.
during regular business hours and is in partir.ipant to propose questiuns for the (b)In a hearing initiated under presiding officer to pose a witness. the vicinity of the principallocation 12.1205(b), the initial written where the nuclear material that is the (b) Oral presentations and responses presentation of the applicant that is subject of the proceeding will be to oral questioning to be relief upon as issued a notice of proposed denial or a possessed. oral evidence must be given under oath notice of denial must describe in detail or affirmation. All oral presentations cr (2)The hearing file also must be made any deficiency or omission in the available for public inspection and oral questioning must be agency's denial or proposed denial of its copying during regular business hours at application and what reliefis sought stenographically reported and, except as the NRC Public Document Room in requested pursuant to section 181 of the with respect to each deficiency or
. Wa shington, DC. omission. Act, must be public unless otherwise r ordered by the Commission.
(b) The hearing file will consist of the (c)In a hearing initiated under application and any amendment thereto. 5 2.1205(c). the initial written (c) Strict rulss of evidence do not
, any NRC environmentalism act presentation of a part that requested a app y o s m ss : nd r thi statement or assessment te ating to the eating or petitioned orleave to P n8 y ,m n m i I
application, and any NRC report and intervene must describs in detail any motion or on the presiding officer s own - any correspondence between the deficiency or omission in the license initiative, strike any portion of an oral applicant and the NRC that is relevant application, with references to any presentation or a response to oral to the application. Hearing file particular section or portion of the questioning that is cumulative, documents already in an established application considered deficisnt. give a irrelevant. immaterial, or unreliable. local public doeurnent room or the NRC detailed statement of reasons why any $ 2.1237 Mouons; burden of proof. Public Document Room when the particular section or portion is deficient hearing request is ranted may be or why an omission is material, and (a) Motions presented in the I incorporated into t e hearing file at describe in detail what rallefis sought proceeding must be presented and those locations by a reference indicating with respect to each deficiency or disposed ofin accordance with il 2.730 wherc .tt those locations the documents omiulon. I'M8I'
; can be found. The presiding officer shall (d) A party or i 2.1211(b) participant (b) Unless otherwise ordered by the rule upon any lasue regarding the making an initial written presentation presiding officer, the applicant or the appropriate materials for the hearing under this section shall submit with its proponent of an order has the burden al file. presentation or identify by reference to proof.
(c)ne NRC staff he: a conthulng a generally available publication or duty to keep the hearing file up to date source, such as the hearing file, all $2.123s conalderanon of commission with respect to the materials set forth in ruses and regutsuona in informal documentary data, informational - adjud6 capons, paragraph (b) of this section and to material, or other written evidence upon i provide those materials for the docket, which it relies to support or illustrate } p a'p d' 8 i the presiding officer, and the applicant each omission or deficiency complained (b) of as do ay u lon I e or any party or i 2.1211(b) articipant in of. %ereafter, additional documentary Commission issued in its program for a manner consistent with e way the data, informational material, or other the licensing and regulation cf hearing file was made available initially written evidence may be submitted or production and utilization facilities, under paragraph (a). ' (d) A pa or i 2.1211(b) participant referenced by any party, other than the ' [aya{or r uct a rial may not NRC staff, or by any 12.1211(b) may not see discovery from any other participant in a written presentation or be challenged in any adjudication party, t 2.1211(b) participant, or the NRC in response to a written question only as a"bject to this subE art' or its personnel, whether by document the presiding ofE.or,in his or her (b) A party to an adjudication subject production, deposition, interrogatories, discretion, permits. to this subpart may petition that the or otherwise. (e) Strict rules of evidence do not application of a Commission regulation apply to written subcilssions under this 8Pecifiedin paragraph (a)of this section
] 12.1233 wettten presentations;wettten
"" section, but the presiding officer may, on be waived or an exception made for the i
motion or on the presiding officer's own particular proceeding. The sole ground (a) After publication of a notice of i initiative, strike any portion of a written f r a request for waiver or exception ,
, hearing in accordance with 12.1205(l) , must be that special circumstances exist J presentation or a response to a written and after the NRC staff has made the question that is cumuleuve, irrelevant, so that application of the regulation to hearing file available in accordance immaterial, or unreliable, the subject matter of the proceeding with I 2.1231, the parties and i 2.tu1(b) would not serve the purposes for which participants shall be afforded the $2.1235 Oralpresentatione; oral the regulation was adopted. In the opportunity to submit, under oath or questions.
absence of a prima facie showing of affirmation, written presentations of (a) Upon a determination that it is special circumstances, the presiding their arguments and documentary data, necessary to create an adequate record officer may not further consider the j informational material, and other for decision. in his or her discretion the matter. !f the presiding officer supporting written evidence at the time presiding officer may allow or require determines that a prima facie showing i l l 0- .. . .
~
r- l l g80 Federal Registor / WI. 54, No. 38 / Tuesday, February 28, 1989 / Rules and Rexuiativns 1.as been made, he or she shall certify safety, environmental, or common { 2.12U Final deelslon; petidon for directly to the Commiselon itself for defense and security matter exists that l r*coaal6*'aten. j determination the matter of whether has not been placed in controversy, the (a) Commission or Atomic Safety and ' spedal circumstances support a waiver proelding officer or the Appeal Board Ucensing Appeal Board action to render or an exception and whether a walver or shall adviae the Commission promptly of a fina! decision must be in accordance an exceptinn should be granted. The the basis for that view, and the with I 2.770. Commission's determination shall be Commission may take appropriate (b) The provisions of I 2.771 gnvern roads after any further proceeding the action. the filing of petitions for Commission deems appropriate. (el pending review and final decision reconsideration. f 2.1241 Settlement of proceedings. by the Commission, an initial decision The fair and reasonable settlement of resolving allissues before the presiding i 2.12e t Aumortry of the secretary to ruse off cer in favor of authorizing licensing on pmcedural mauws. proceedings subject to this subpart is er.couraged. A settlement must be action subject to this subpart is The Secretary or the Assistant approved by the presiding officer or framediately effective upon ish..'nce Secretary may rule on procedural except- matters relating to proceedings Atomic Safety and ucensmg Appeal Board, as appropriate,in order to be (1) As r*ovided in any order issued in conducted by the Commission itself binding in the proceeding. accordance with 12.1283 that stays the under this subpart to the same extent effectiveness of an initial deciolon: or they can do so under i 2.772 for Initial Decision. Commiseloo Review, (2) As otherwise provided by the proceedings under Subpart G. And Final Decision Commission in special c!rcumstances. i 2.1251 fnitial decialon and its offect, (f) Tollowing an Initial decision i 2.1293 Stays of NRC statt Acensing resolving allissues in favor of the accons or of deciolons of a pmsamns (a) Unless the Commission directs licensing action as specified in that the record be certified to it in orncer, an Atomic.Safeh d and Ucensing accordance with paragraph (b) of this p.,agraph (e) of this section, the Director ""**' "*'Wg ", ' e commusion, pensng section, the presiding officer shall o Nucbar Reactor Regulation or the Deector cf Nuclear Material Safety and app lications for a stay of any render an initial decision after decision or action of the Commission, a completion of an informal hearing under Safeguards, as appropriate this subpart. net initial decision notwithstanding the filing or pecden presiding officer, or an Atomic Safety of an appeal pursuant to $ 2.1253, she and Ucensing Appeal Board or any l constitutes the final action of the udon by eMC sta0n issWng a Commission thirty (30) days after the take the appropriate licensing actian date of issuance, unless an appealis upon making the appropriate !! censing beense in accadance e i 2W1) findings promptly, except as may be are governed by 6 2.788, except that any taken in accordance with i 2.1253. (b) The Commission may direct that provided pursuant to paragraph (e)(1) or request for a stay of staff licensing action pendhg cornpletion of an the presiding officer certify the record to (2) of this section. , adjudication under this subpart must be it without an initial decision and may i 2.1253 Appeals from inloal dechions, omit an initial decision and prepare a filed at the time a request for a hearing final decirlon upon a fiding that due and Parties and i 2.1211(b) participants or petition to intervene is filed or within ten (10) days of the starts action, j timely execution ofits functions so requires, "Q s n p M the procedures set out in il 2.762 and rd is whicheverislater A request for a stay f a stafflicensing action must be filed j (c) An initial decision must be in , writing and must be based only upon 2.763. with the adjudicatory decisionmaker .
" before which the licensing proceeding is n um ae ny me Aion* satety and acyaaaetreadyj"N, include allinformatior ubmi in the W herd.
Pendias-Dated at RocW W. Wa 2nd day of proceeding with respect to which all The Commission authorizes the February.1980L l parties have been given reasot.able prior Atomic Safety and ucensing Appeal For the Nuclear Regulatory Commission. notice and an opportunity to comment. Board to exercise the authority and Samuel J. Chilk. The initial decielon must include- carry out the review functions to be secretary of the Commission, (1) Findings, conclusions, and rulings, performed under il 2.1205(n),2.1200(d), ]j with the reasons or basis for them, on all and 2.1253, [FR Doc. 81h4001 Filed 3-27.e a:45 aml m ene, ,,,, g, .y materialissues of fact, law, or discretion presented on the record: $ 2.1257 h*w of dechion and accorw of ,! (2) The appropria te ruling, order, or en Atomic safety and ucenalng Appeal ~ denial of relief with its effective date; "*"I' -NATIONAL CREDIT UNION and ADMINISTRATION i The Commisalon will not entertain i
, 3)
( ne time within which appea's to any petition for review of a decielon or tne decision and a briefin support of action of an Atomic Safety and 12 CFR Parts 701 and 741 ! i those appeels may be filed, the time Ucensing Appeal Board under this within which briefs in support of or in subpart. Cornmission review is available Nonmember and Public Unit Accounts opposition to appeals filed by another only on the Commission's own motion AosNcy: National Credit Union party may be filed and the date when within forty (40) days after the date of a Administration. i the clecision becomes finalin the decision or action by the Appeal Board j absence of an appeal, actio,e Interim final rule-extension of 1 under i 2.1255. Commission review will comment period. 1 (d) Matters not put into controversy be conducted in accordance with those ' by the parties may not be exarnined and procedures the Commission deems suasesARY: On December 14.1988, the ; decided by the presiding officer or the appropriate. Absent Commission NCUA Board approved an interim fmal ' Atomic Safety and ueensing Appeal review, the decision of the Appeal Board rule limiting the amount of pub!!c unit Board. If the presiding officer or the constitutes the final action of the and nonmember accounts that may be i Appeal Board believes that a serious Commission. maintained by federally. insured credit l I i 1 _ _ _ _ . _ - . . _ . _ . - - . _ _ _ _ _ _ _ _ _ 1}}