ML20245D544
| ML20245D544 | |
| Person / Time | |
|---|---|
| Issue date: | 04/25/1989 |
| From: | Parler W NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| References | |
| TASK-RIA, TASK-SE SECY-89-133, NUDOCS 8905010039 | |
| Download: ML20245D544 (72) | |
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RULEMAKING ISSUE April 25, 1989 (Affirmation)
SECY-89-133 ror:
The Commissioners From:
William C. Parler General Counsel
Subject:
FINAL RULE FOR REVISIONS TO 10 CFR PART 2 TO IMPROVE THE HEARING PRCCESS
Purpose:
To obtain Comission approval for publication in the Federal Register of a final rule which would 6 mend 10 CFR Part 2 to modify the Comission's Rules of Practice to. improve the hearing process.
Background:
SECY-86-40, dated February 4,1986, SECY 86-40A, dated February. 20,1986, and SECY 86-408, dated May 1, 1986 discussed the proposed rule.
On July 3, 1986, the Commission published for public comment-(51 FR 24365) a notice of-proposed rulemaking to amend certain of its rules of practice to improve the hearing process. The proposed rule was the culmination of an extensive process of study, evaluation and review of earlier public comments. The Commission create ~ the Regulatory Reform Task Force in d
November 1981 to conduct a detailed examination of the NRC licensing process for nuclear power plants.
The Task Force developed a number of proposals which were reviewed, in turn, by an internal Senior Advisory Group, an Ad Hoc Advisory Committee for the Review of Nuclear Reactor Licensing Reform, several Comission meetings, and by the public through a Request for Public Comment on Suggestions For Licensing Process published April 12, 1984 (49 FR 14698).
The Commission identified five proposals which merited continued consideration for possible adoption.
The proposed changes were related to admission of I
Contact:
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fact, conclusions of law or appellate briefs.
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Discussion:
The NRC received over 150 comments from electric utilities, electric utility and nuclear power L
associations, counsel for NRC licensees, an architect-engineer, interveners in NRC proceedings, L
public interest groups, state and local governments and individuals.
In response to the coments, one of the proposals has been dropped and several minor changes have beer, made to the remaining proposals. All issues and responses are addressed in the Supplementary Information Section of the draft final rule.
Contentions The proposed amendment to 10 CFR 5 2.714 would require the proponent of a contention to supply information showing the existence of a genuine dispute with the applicant on a material issue of fact, law or policy.
The amendment also specifies standards to be used by the'licinsing' boards or Commissio'n in acmitting contentions.
Cross-examination Plans The proposed amendment to 10 CFR 5 2.743 would require a party to a proceeding to submit a cross-examination plan containing specified inforntion to obtain permission of the presiding officer to conduct cross-examination. The proposed plan was to include a brief description of the issues on which cross-examination is to be conducted and a proposed line of questions and the expected answers. A number of commenters were concerned about the burden impused by the requirement to submit plans, particularly due to the necessity to speculate about possible responses to questions. The requirement to include expected answers has been deleted. We believe a plan including a statement of objectives and a line of possible questions will give sufficient information to the presiding officer to allow him or her to determine whether the proposed cross-examination is necessary for full and true disclosure of the facts.
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-.i Summary Disposition The proposed amendment to 10 CFR 5 2.749(a) woulo permit motions for summary disposition to be filed at any time during the proceeding, including during the hearing.
The purpose of the preposal is to eliminate unnecessary hearing time spent on testimony and cross-examination where no material issues remain in dispute. A number of commenters asserted that, depending upon when they are filed, summary disposition motions have the potential to actually prolong hearings. Consequently a sentence has been added to clarify that the presiding officer retains the authority to dismiss or hold in abeyance such motions if they would divert substantial resources from the hearing and thereby prolong the hearing process.-
Proposed Findings and Conclusions of Law and Appeals From Initial Decisions The proposed amendment to 10 CFR 6.2.754(c) would have limited an intervenor's filings of proposed finding of fact and conclusions of law to issues which that party actually placed in controversy or' sought to place in controversy. The proposed amendment to 10 CFR 52.762(d)wouldhavesimilarlylimitedtheissueswhich an intervenor'could raise irian a~ppellate brief.
In Nsponse to the comments on this proposal we have dropped these changes from the final rule package. A number of commenters indicated the change would cause interveners to adopt each other's contentions to preserve their rights which could prolong any hearings and overwhelm hearings with the volume of participation. Several commenters also asserted that the proposal violated the Administrative Procedure Act (APA) which provides that: "Before a recommended, initial, or tentative decision on agency review of the decision of subordinate employees, the parties are entitled to a reasonable opportunity to submit for the consideration of the employees participating in the decisions -- (1) proposed findings or conclusions; or (2) exceptions to the decisien...; and (3) supporting reasons for the exception or~
conclusions." 5 U.S.C. 557(c) proposed findings or We believe it would be reasonable to argue that the rule would be in accord with the APA because a party's opportunity to file i
findirgs and exceptions are preserved for issues l
specifically raised by the party.
However, in view of
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. t the. potential for the change to significantly complicate a proceeding and encourage' the proliferation q
L of contentions, the proposal has been withdrawn.
High-Level Maste Proceeding In a' February 29, 1989 Staff Requirements Memorandum on SECY-89-23, the Commission directed the General Counsel to evaluate the need for additional modifications to the procedural provisions for the high-level waste (HLW) proceeding. The General Counsel intends to submit its evaluation no later than June 15, 1989 for Commission review. Section 2.1000 of the final LSS rule-(54 Fed. Reg.14925, April 14,1989) cross-references any sections of general applicability in subpart G of Part 2 that will continue to apply to the HLW licensing proceeding. As such, all but one of the provisions in the draft final regulatory reform rule (section 2.714, which requires contentions to show that a genuine dispute exists on an issue of law, fact, or policy) will apply to the HLW proceeding. The LSS rule contains a new provision on contentions, section 2.1014, and consequently section 2.714 would no longer apply to the HLW proceeding. The General Counsel, in his evaluation, will review the need to extend the
" genuine issue of fact" standard to the HLW proceeding.
Recommendations:
That the Commission:
1.
Approve for publication the amendments to 10 CFR Part 2. (Enclosure 1).
Certify that this rule will not have a significant 2."
economic impact on a substantial number of small entities in order to satisfy the requirements of the Regulatory Flexibility Act, 5 U.S.C. 605(b).
3.
Note:
(a) That the amendments to Part 2 will be published in the Federal Register and will become effective 30 days af ter publication.
(b) The Subcommittee on Nuclear Regulation of the Senate Committee on Environment and Public Works, the Subconraittee on Energy and Environment of the House Committee on Interior and Insular Affairs, and the 4
. 5-Subcommittee on Energy and Power of the House Committee on Energy and Commerce will be notifiec of the Commission's action by letter such as Enclosure 2.
(c) A copy of the Commission's Regulatory Flexibility Act certification will be forwarded to the Chief Counsel: for. Advccacy, SBA, by the Division of Freedom of' Information and Publication Services ADM.
(d) That a public announcement'will be issued ~
when the final rule is filed with the Office of the Federal Register.
(e). The proposed rule was coordinated with the ASLBP and the ASLAP..Both of the Panels have been advised that OGC would be forwarding the draft final rule to the Commission and the draft final rule has been discussed
.inf.ormally with the P ls.
l v4lgy' William C. Parler
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General Counsel j
Enclosures:
1.
Federal Register Notice of Final Rule 2.
Congressional Letter l
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l Commissioners' comments or consent should be provided directly I
l to the Office of the Secretary by COB Thursday, May 11, 1989.
Commission Staff Office comments, if any, should be submitted to the Commissioners NLT Thursday, May 4, 1989, with an infor-mation copy to the Office of the Secretary.
If the paper is of such a nature that it requires additional time for analytical review and comment, the Commissioners and the Secretariat should j
be apprised of when comments may be expected.
1 This paper is tentatively scheduled for affirmation at an Open Meeting during the Week of May 15, 1989.
Please refer to the q
appropriate Weekly Commission Schedule, when published, for a specific date and time.
DISTRIBUTION:
Commissioners OGC OIA GPA REGIONAL OFFICES EDO ACRS ACNW ASLBP ASLAP SECY o
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NUCLEAR REGULATORY COMMISSIDH 10 CFR Part 2 Rules of Practice for Domestic Licensing Proceedings--
Procedural Changes in the Hearing Process i
i AGENCY:
Nuclear Regulatory Commission.
ACTION:
Final rule.
SUMMARY
- The Nuclear Regulatory Commission is anending.its Rules of Practice to expedite the hearing process with due regard for the rights of the parties.
Under the amendnents a person seeking to participate as a party in an NRC proceeding is required to file a list of contentions with the presiding officer together with a brief explanation of the bases for each contention, a concise statement of the alleged facts or expert opinion which support the contention and which, at the time of the filing, the person intends to rely upon in proving the contention at the hearing, and references to the specific sources and documents of which the person is aware and upon which he or she intends to rely to gstablish such facts or expert opinions.
The information L
submitted by a p,otential intervenor must be sufficient to show that a genuine dispute exists between it and the applicant or licensee on an issue of law, l
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. fact or policy.
If the person fails to satisfy these requirements the presiding officer shall not admit the contention. Other amendments are also made on the Commission's regulations to reduce unnecessary discovery against the NRC staff, to require parties in a proceeding to file with the presiding officer a description of the purpose and nature of questions which they intend to ask witnesses during cross-examination, and to expand the time during which motions to dispose of contentions summarily and without a hearin~g may be filed.
EFFECTIVE DATE:
Insert date 30 days after date of publication in the FEDERAL REGISTER.
FOR FURTHER INFORMATION CONTACT:
Karen D. Cyr, Senior Attorney, Rulemaking and Fuel Cycle Division, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, D.C.
20555; Telephone (301) 492-1637.
SUPPLEMENTARY INFORMATION.
I.
Background.
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- On July 3,1986, after extensive study, evaluation ar review and careful
.considerationofpriorpubliccomments1/ the Commission published a notice of proposed rulemaking stating that it was considering amending certain provisions of its rules of practice in order to improve the licensing process i
for nuclear power plants and inviting public comment (51 FR 24365, Jcly 3, 1986.) The proposed amendments, which were initially developed by the Regulatory Reform Task Force, addressed specific aspects of the hearings process: admission of contentions; discovery against NRC staff; use of cross-examination plans; timing of motions for summary disposition; and limitations on interveners' filings of proposed findings of fact, conclusions of law, and appellate briefs.
In adoition to these proposals, the Ccmission also requested caents on a series of related proposals developed by former Commicsinner Asselstine concerning the intervention process. The comment period expired October 17,'1986. More than 150 com~ments, including a few late-filed comments, were received from electric utilities, electric utility and nuclear power associations or their counsel, utility stockholders, counsel for NRC licensees, an architect-engineer, interveners in NRC proceedings, public interest groups, states, local governments, Indian tribes and interested individuals. Copies of all comments received are available for public inspection and copying for a fee at the NRC Public Document Room at 2121 1. Street, N.W., Washington, D.C.
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A detailed account of the background of this proceeding is set out in the lireamble of the preposed rule, see 51 FR 24365-24366, July 3,1986.
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i t II. Summary of Comments.
A.
General.
Although objections were raised to some of the specific proposals, the
. proposeo rule received broad support from electric utilities, their counsel and various industry ' groups. According to these commenters, the proposed rule would streamline the hearing process and make it more efficient. States, local governments, public interest groups, interveners and individuals generally opposed the proposals on the ground that they would curtail the public's role in the licensing process and meaningful public participation in licensing proceedings would be eliminated.
Noting the need for anr8 importance of unbiased factual information in reaching sound regulatory decisions and the effectiveness of intervenor's in identifying and obthinin'g fu11' consideration of vital health and safety issues, these commenters expressed the view that opportunities for full public participation in the licensing process should be expanded, not reduced.
Some commenters questioned the need for the proposed changes. Others stated that the Commission's rules of practice should be
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retained unchanged.
B.
Comments on Specific Proposals, with Responses.
l The sections which follow contain a description of each of the proposed amendments, a' summary of the comments received and an NRC response.
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- 1. - Intervention (10CFR62.714)AdmissionofContentions-Item 2)2/
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The proposed amendments to 10 CFR 5 2.714 would raise the threshold for'the admission of contentions to require the proponent of the contention to supply information showing the existence of a genuine dispute with the applicant on an issue of law, fact or policy. The required showing must include references to the specific portions of the application which are disputed. The I
contention must also be supported by a concise statenent of the alleged facts
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or expe-t opinion, together with specific sources and documents of which the petitioner is aware, w'hich will be relied on to establish the facts or expert opinion.
In determining whether there is a genuine dispute on a material issue of law, fact or policy, the Commissio4. or the presiding officer will consider whether the information presented prompts reasonable minds to inquire further as to the validity of the contention.
Absent such a showing, the contention will not be admitted.
Under the proposed amendments, acmission of a contention may also be refused if it appears unlikely that the petitioner can prove a set of facts in support of the contention or if it is determined that the contention, even if proven, would be of no consequence in the proceeding because it would not entitle the petitioner to relief.
- Finally, the proposed amendments would provide that a contention raising only an issue of law will not be admitted for resolution in an evidentiary hearing but shall be decided on the basis of briefs and/or oral argument.
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In each case, the item number refers to the number of the amendment in the text of the proposed rule.
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. : Electric utilities, their counsel and industry groups, for the most part, supported.this change, while environmental and citizen action groups and state
.and. local government representatives opposed the proposed amendments raising the threshold for the admission of contentions.
Characterizing the proposed changes respecting the admission of contentions as one of the most significant aspects of the proposed rule, the comenters who
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favored adopting more stringent standards of admissibility stated that the Comission's existing procedures permitted too many insignificant, meritless, hypothetical and time-consuming contentions to be admitted and that the proposed amendments would have the salutary effect of requiring petitioners to know in advance of filing a petition to intervene what issues they intended to litigate and how they planned to conduct the litigation.- In the opinion of some comenters, the proposed amendments, if vigorously enforced, could becone an important tool in crystallizing disputes at an early stage in the proceeding, thereby significantly improving the efficiency and quality of the hearing process. The comenters noted that the proposed amendments should curtail the practice of using discovery procedures to develop contentions and that the proposed amendments would bring NRC practice more in line with Federal practice under the Administrative Procedure Act. The proposed amendments would also, in one respect, conform NRC practice more closely to that permitted by the Federal Rules of Civil Procedure. On this point, one comenter noted the similarity between Rule 12(b)(6) of the Federal Rules of Civil Procedure and the provision in proposed 6 2.714(d)(2)(iii) under which a
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presiding officer could refuse to admit a contention upon a determination that the contention, if proven, would be of no consequence in the proceeding because it would not entitle the petitioner to' relief.
Some of the proponents of the proposed amendments expressed the view that the amendments should be further revised.
Several commenters expressed the view that the' proposed amendments did not go far enough in that they failed to include more stringent requirements respecting standing. Several commenters questioned the propriety of admitting contentions based on disputes on issues of policy.
In the opinion of these commenters, it would be inappropriate for licensing and appeal boards to decide policy issues.
Policy and disagreements concerning policy should be addressed by the Comission itself. According to these commenters, to permit policy statements which have been formally adopted by the Comission to be challenged in, licensing and. regulatory proceedings devoted to other matters would be inconsistent with current NRC practice (see 10 CFR 5 2.758) which precludes parties in any adjudicatory proceeding involvinginitiallicensing,exceptasprovidedinE2.758(b),(c)and(d),
from challenging any Comission rule or regulation.
Instead, concerns respecting Commission policies should be raised at the time the Comission is actively engaged in developing and formulating those policies in the forum provided by the Comission for that purpose.
In response, the Comission would note that the use of the terms " law, fact and policy" was not meant to change in any manner the way Commission regulations or policy statements are dealt with in NRC proceedings. The terms a.---,----------,,--------_----
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were used merely to encompass the variety of issues, often mixed factual, legal or policy issues, which can be the subject of contentions in NRC proceedings.
Several comenters criticized the language used in paragraph-(b)((2) of i 2.714 to describe the threshold of admissibility on the ground that it was
-unnecessarily redundant because it included two separate stancards of admissibiMty, i.e., (1) the existence of a genuine dispute with the applicant on a material issue of law, fact or policy, and (2) the information presented prompts reasonable minds to inquire further as to the validity of the contention. Some comenters opposed, while other comenters favored, inclusion of the " reasonable minds" standard. One comnenter noted that the genuine dispute standard is the same standard used to determine standing and that if this standard is applied as it.has been in the past, adoption of the proposed amendments will have,little practical effect.
Comenters opposing the proposed amendments objected on the grounds that the proposed *.mendments were unnecessary, contrary to due process, unduly burdensome, unfair and in violation of the provisions of section 189a of the Atomic Energy Act of 1954, as amended. According to these comenters, the proposed standard for the admission of contentions is so restrictive that it would be virtually impossible for persons seeking to participate in an HRC adjudicatory proceeding to succeed in having their contentions admitted with the result that significant safety issues might not be fully explored or carefully reviewed.
Instead of sharpening the issues in dispute, the proposed
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amendments would. simply ' eliminate certain issues from further consideration
'.with'the result that.the problems presented might never be satisfactorily c
resolved. This could'be highly detrimental to the public health and safety.
l Asserting that the proposed' standard for admissibility of contentions is far i
more stringent than that applied by the Federal courts, the commenters argued I
that,-if promulgated, the standard would have the effect of requiring persons i
seeking to participate in an NRC proceeding to prepare and prove their complete evidentiary case before cny determination is made on their right to be a' party to the proceeding.
Under the proposed procedures, several commenters argued, petitioners would not only be required to produce the proof of their alleged facts in order to be admitted to the proof-gathering end fact-finding process, licensing boards would also be permitted to prejuoge the petitioner's evidence before the petitioner was granted standi.t to participate in the proceeding. Severa? commenters took strong exception to the provision in 5 2,714(d)(2)(ii) which would permit presiding officers to bar an intervence from participating in a proceeding on the basis of a preliminary determination that "it apperes unlikely that petitioner can prove a set of facts in support of its contention."
In the opinion of some commenters, the requirement that petitioners must document and furnish evidence in support of their contentions before taey are entitled to participate in an ad,iudicatory proceeding and take advantage of the mechanisms normally available t'o parties to such a proceeding to obtain relevant documents and information is patently unfair and constitutes a denial l
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of due process.
In addition, they argue, contrny to the intent of the j
present regulatory scheme, one immediate effect of the propcsed amendments I
would be to shift the burden of proof from the license applicant to the intervenor. The comments also noted that under the Commission's regulations, license applicants are not required to furnish all the necessary documentation supporting the application at the time the application is first submitted.
These circumstances, coupled with the more stringent standard for the admission of contentions prescribed by the proposed amendments, would make it impossible for interveners to prepare and litigate a fully definitive case.
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Some commenters also argue that to the extent that the proposed amendments would operate to bar interveners from participating in NRC adjudicatory proceedings, they would contravene the provisions of section 18Sa of the Atomic Energy Act of 1954,'as amended, which states', in' pertinent part:
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i "In any proceeding unuer this Act, for the granting, suspending, j
revoking, or amending of any license or construction permit, or application to transfer control, and in any proceeding for the l
issuance or modification of rules and regulations cealing with the activities of licensees, and in any proceeding for the payment of compensation, an eward, or royalties under sections 153, 157, 186c., or 188, the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such I
proceeding...."
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i The comenters also opposed the proposed amendments because, in their opinion,.
the amendments would, if adopted, create a hopeless state of confusion respecting the matters to be considered in determining whether a person should be entitled to participate in a proceeding and the matters to be considered in i
reaching a decision on the merits of the proceeding.
In their view, the standards used in deciding an issue on the merits are not appropriate for deciding whether a particular person should be allowed to participate in a proceeding. The comenters also took exception to the cases cited in the preamble of the proposed rule in support of this proposal.
Finally, some comenters objected to the proposed amendments on the grounds that they are unnecessary. According to these comenters, presiding officers have adequate authority under the Comission's present rules of practice to bar contentions which are friv61o'us and without merit. 'In general, when an 1
effort has been made to apply the existing requirements in a disciplined i
a manner, presiding officers have experienced little difficulty in determining J
l whether a particular contention is meritorious and should be acmitted as an 1
issue in the proceeding. The comenters are firmly of the view that
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additional amendments establishing more stringent standards for the admission of contentions are unnecessary.
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The Ccmission disagrees with the assertions that the proposed amendments are unduly burdensome and so restrictive that it will be virtually impossible for persons to have safety contentions admitted to an NRC proceeding.
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Linder these new rules an intervenor will hv'e to provide a concise statement of the alleged facts or expert opinion which support the contention and on which, at the time of filing, the intervenor intends to rely in proving the
. contention at hearing, together with references to the specific sources and documents of which the intervenor is aware and on which the intervenor intends to rely in establishing the validity of its contention.
This requirement does not call upon the intervenor to make its case at this stage of the proceeding, but rather to indicate what facts or expert opinions, be it one fact or opinion or many, of which it is aware at that point in time which provide the basis for its contention.
In addition to providing a statement of facts and sources, the new rule will also require interveners to submit with their list of contentions sufficient information (which may include'the known significant facts described above) to show that a genuine dispute exists between the petitioner and the applicant or the licensee on a material issue of fact, law or policy. This will require the intervenor to read the pertinent portions of the license application, including the Safety Analysis Report and the Environmental Repcrt, state the applicant's position and the petitioner's opposing view. Where the intervenor believes the application and supporting material do not address a relevant matter, it will be sufficient for the intervenor to explain why the application is deficient.
.. e The Commission does not agree that this rule contravenes b 189a of the Atomic Energy Act of 1954, as arended. A member of the public has no absolute or
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, unconditional right to intervene in a nuclear power plant licensing proceeding under the-Atomic Energy Act.
8PI v. Atomic Energy Commission, 502 F.2d 424 l
(D'.C. Cir. 19'4). Section 189a of the Act which provides for intervention is l
l subject to the Commission's rulemaking power under.section 161p and, thus, to l
l reasonable procedural requirements designed to further the purposes of the Act.. BPI v. Atomic Energy Commission, supra, 502 F.2d at'427, 428; see also l
American Trucking Ass'ns, Inc. v. United States, 627 F.2d 1313,1320-23 (D.C.
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1980), Furthermore, the right to intervention under section 189a for a member of the public is explicitly conditioned upon a " request." The proposed amendments would, in effect, provide that a " proper request" by a rember of l
the public shall include a statement of the facts supporting each contention together with references to the sources and documents on which the intervenor relies to establish those facts.
Finally, the Administrative Procedure Act creates no independent right to intervene in nuclear licensing ' proceedings.
See Easton Utilities Commission v. Atomic Energy Cormiission, 424 F.2d 847, 852 (D.C. Cir. 1970)(en banc), cf. National Coal Operators' Assn. v. Kleepe, 423 U.S. 388, 398-99, 46 L. Ed. 2d 580, 96 S. Ct. 809 (1976).
Nor does the Commission believe that this requirement represents that substantial a departure from existing practice. Under the Commission's existing requirements, as explained by the Atomic Safety and Licensing Appeal Psei,"[A]ninterventionpetitionerhasanironcladobligationtoexaminethe publicly available documentary material pertaining to the facility in question with sufficient care to enable the petitioner to uncover any information that could serve as the foundation for a specific contention.
Neither Section 189a
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of the Atomic Energy Act'nor Section 2.714 of the Rules.of Practice per'mits
. the filing of a vague, unparticularized contention, fellowed by an endeavor to flesh it out through discovery against the applicant of Staff."
' Duke Power Co.- (Catawba Nuclear Station, Units 1 and 2), ALAB-687,- 16 NRC 460, l
468(1982); vacatedinpartonothergrounds,CLI-83-19,17NRC1041(1983).
See also Ohio v. NRC, 814 F.2d 258 (6th Cir. 1987).
Under the current requirement to provide the basis for a contention, a petitioner must provide some_ sort of minimal basis indicating the potential validity of the contention.
The requirement generally is fulfilled when the sponsor of an otherwise acceptable contention provides a brief recitation of the factors underlying the contention or references to documents and texts that provide such reasons." Texas Utilities Electric Co. (Comanche Peak Steam Electric Station,'Ur.it 1), ALAB-868, 25 NRC 912, 930 (1987). The new requirements will require, in addition, that a petitioner include in.its submission some fact or facts in support of its position sufficient to prompt reasonable minds to inquire further.
I We reject the arguments that the new rule is unfair and a denial of due process because it requires interveners to state facts in support of its contention before the intervenor has access to NRC reports and documents and before discovery against the applicant. Several months before contentions are filec, the applicant will have filed an application with the Comission, accompanied by multi-volume safety and environmental reports.
Interveners will continue to be able to use discovery to develop the facts necessary to I
I support its case. However, the rule will require that before a contention is l
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u admitted the intervenor'have some factual basis for its position and that there-exists a genuine dispute between it and the applicant.
It is true that this.will preclude a contention from being admitted where an intervenor has no 1j facts.to support its-position and where the intervenor contemplates using i
I discovery or cross-examination as a fishing expedition which might produce relevant supporting facts. The Commission does not believe this is an appropriate use of discovery or cross-examination. BPI v. Atomic Energy
_Comission, 502 F.2d 424, 429 (D.C. Cir.1974). The Commission believes it is a-reasonable requirement that an intervenor be able to identify some facts at-the time it proposes a contention to indicate that a dispute exist; between it and the applicant on a material issue.
Tne Commission agrees with comenters that the new rule may require persons seeking intervention to do 'mors work at an earlier " stage' of the proceeding than under the current regulations. However, the Comission disagrees with the conclusion reached by some commenters.that the rule shifts the burden of proof to potential interveners or should be rejected because of the burden placed on potential interveners. The Comission believes it to be a reasonable requirement that before a person or organization is admitted to the proceeding it read the portions of the application (includiag the applicant's safety and environmental reports) that address the issues that ara of concern to it and demonstrate that a dispate exists between it and tne applicant o'n a i
material issue of fact, law or policy. Many interveners in NRC proceedings already ably do what is intended by this requirement: they review the application before submitting contentions, explain the basis for the
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contention by citing pertinent portions and explaining why they have a disagreement wich -it.
TheCommissionalsodisagreeswiththecommentsthatsubsection(b)(2)(iii) i should permit the petitioner to show that it has a dispute with the Commissicr. -
staff or that petitioners not be required to set forth facts in support of contentions until the petitioner has access to NRC reports and documents.
Apart from NEPA, issues, which are specifically dealt with in the rule, a contention will not be admitted if the allegation is that the NRC staff has not performed an adequate analysis. With the exception of NEPA issues, the sole focus of the hearing should Se on whether the application satisfies NRC regulatory requirements, rather than the adequacy of the NRC staff performance. 3,/ For this reason, and because the license application should include _ sufficient informat' ion'to form'a basis for contentic.ns, we reject s
commenters' suggestions that interveners not be required to set forth pertinent facts until the staff has published it's FES and SER.
The new rule provides that in ruling on the admissibility of a contention, the presiding officer shall not admit a cc.tention to the proceeding if the intervenor fails to set forth the contention with reasonable specificity or 3/
The Commission recognizes that in sone cases the applicant's and the NRC staff's position on a particular issue will be similar.
Although under these rules the contentior, must be framed to disagree with the applicant's position, an ir*' evenor's evidentiary presentation in such a case at the hearing may be directs d towards both the staff and the applicant to the extent required for a consistent litigation strategy.
j O 1 estchlish a basis for the contention.
In addition, the contention will be j
dismissed if the intervenor sets forth no facts or expert opinion on which it j
intends to rely to prove its contention, or if the contention fails to establish that a genuine dispute exists between the intervenor and the applicant (or, possibly, the ERC staff on a HEPA issue).
In determining whether a genuine dispute exists, the presiding officer shall determine whether the infortnation presented prompts reasonable minds to inquire further as to the validity of the contention.
Contrary to the assertions of some commes;ters the use of this standard for the admission of contentions has been supported by the federal courts in numerous instances.
Vermont Yankee Nuclear Fa ar Corp. v. NRC, 435 U.S. 519 (1978); Independent Bankers Ass'n
- v. Beard of Governors, 516 F.2d 1206 (D.C. Cir.1975); Connecticut Bankers Ass'n v. Board of Governors, 627 F.2d 245 (D.C. Cir. 1980).
The court in the latter case emphasized that "a' protestant does not beconie entitled to an evidentiary hearing merely on request, or on a bald or conclusory allegation that such a dispute exists. The protestant must make a minimal showing that material facts are in dispute, thereby demonstrating that an ' inquiry in depth' is appropriate." 627 F.2d at 251.
The Commission's rule is consistent with these decisions.
Several cormlenters were concerned that the standard " dispute on a genuine issue of material fact" is the same one to be used bf the presicing officer in ruling on motions for summary judgment filed ender 10 CFR S 2.749.
The Commission expects that at the contention filing stage it will take less factual support to "prempt reasonable minds to inquire further" than it will l
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at thel sumary disposition. stage because in 'the latter case, the' parties will.
L11kely.have completed discovery and there is substantially less likelihood that substantia 1' new information.will. subsequently be developed by the S
' par _ ties.
The proposed rule also provided that the presiding officer would refuse to-admit.a contention where:
j j
s (ii) It appears unlikely that petitioner can prove a set of facts in
. support of its contention; or
. (iii) The contention, if proven, would be of no consequence in the proceeding because it would not entitle petitioner to relief.
The requirement in (iii) above was intended to parallel the standard for dismissing a claim under Rule 12(b)(6) of the Federal Rules of Civil
' procedure. The intent of Rule 12(b)(6) is to permit dismissal of a claim where the plaintiff would be entitled to no relief under any set of.. facts which could be proved in support of his claim.
1 A number of comenters disagreed with the language of proposed section 1
(d)(2)(ii);specifically,thephrase"appearsunlikely",becauseitsuggests that the presiding officer is to prejudge the merits of a contention before an intervenor has an opportunity to present a full case. The Comission
\\
c,
,1 I c-1 recoge!2es the potential ambiguity of the proposed phrasing and the subsection has been' deleted.
Issues which arise.under the National Environmental Policy Act.(NEPA) cre specifically addressed in the new rule. HEPA requires the NRC to analyze the environmental impact of its proposed major actions significantly affecting the quality of the environment.
In the licensing context, the f1RC fulfills this obligation by issuance of a draft environmental impact statement (DES) and a final environmental impact statement. 'Any' license or permit application
{
subject to NEPA's impact statement requirement must contain a complete i
. Environmental Report (ER) which is essentially the applicant's proposal for the DES.
(See 10 CFR is 51.20 and 51.40). As described in 5
.2.714 b()(2)(iii),anintervenorwillberequiredtodemonstratethatagenuine dispute exists between it ano the applicant or the staff on a material issue of. fact or law which relates to NEPA. Several commenters took exception to
~
the provisions in paragraph (b)(2)(iii) of 6 2.714 relating to environmental matters, claiming, among other things, that those provisions appear to authorize petitioners to submit late + filed contentions based on the NRC l
staff's environmental review documents. One comenter recommended that the I
discussionofNEPAissuesini2.714(b)(2)(iii)bedeletedasunnecessary, l
noting the availability of a right, based on past precedents, to amend or wpplement environmental documents to reflect new information. The comenters disagreed on whether contentions relating to environmental matters should l
focus on environmental reports submitted by the applicant or er.vironmental documents prepared by the NRC staff.
1 3;
j
^4 I.
u' The Comission hasL reexamined those portions of 9 2.714(b)(2)(iii). which relate to the filing of environmental contentions in the' light of these coments and.has concluded that the text of the rule as presently drafteo is Ls o
. clear and that no further revision'is needed. The rule maker clear that to the extent an environmental issue is raised in the applicant's ER, an intervenor must file contentions on that document. The NRC staff in its DES
.or FES may well take a different position than the applicant.
10 CFR a
5 2.714(b)(2)(iii.) explicitly recognizes for environmental matters existing precedent regarding the right to amend or supplement contentions based on new i
information. The Commission wishes to emphasize that these amendments to i 2.714(b)(2)(iii) are not intended to alter the standards in 6 2.714(a) of its rules of practice as interpreted by NRC caselaw, e.g., Duke Power Co.,
(Catawba Nuclear Station, Units I and 2), CLI-65-19,17 NRC 1041 (1983),
respecting late-filed contentions nor are they intended.to exempt environmental matters as a class from the applu.ation of those standards.
One commenter objected to the inclusion of the word " concise" in paragraph (b)(2)(ii) of 9 2.714 on the ground that it "could be misconstrued as requiring brevity." The comenter added that a word or phrase which connotes sufficient detail to inform the reader of the various factual or other bases for the contention should be used instead.
The Comission disagrees with the view of the comenter that retention of the word " concise" in paragraph (b)(2)(ii) of 5 2.714 could be misleading.
In the opinion of the Comission., paragraph (b)(2)(ii), when read in context with
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b aragraphs:(b)(2)(1) and (b)(2)(iii)'of 9 2.714,' clearly identifies the kind p
of detailed information which a petitioner must provide to sinable the Commissien or the presiding officer to determine whether a' cont'ention should be admitted in a particular adjudicatory proceeding.
L Several commenters suggested that paragraph (b)(2)(iii) should require that the issue being raised is not only in dispute but is also
- material", that is, that the resolution of the dispute would make a difference in the outcome of the licensing proceeding. The Commission cencurs that that was the intention of the requirement, as is demonstrated by the the language of (d)(2)(i), which provided for "de,termining whether a genuine dispute exists on a material issue of law, fact, or policy..." Section (b)(2)(iii) has been revised to include the word " materiel".
.One commenter expressed the view that there was very little likei nhood that contentions involving purely legal issues would be submitted (in most cases contentions raise mixed questions of law and fact) and therefore paragraph (d)(2)(iv) of 5 2.714 is unnecessary and should be deleted. Another commenter disagreedwiththeformof62.714(d)(2)(iv). As written, it conflicts with the proposec definition of a contention in 10 CFR $ 2.714(b)(2) as a statement i
of law, fact or policy". While not opposed to the intent of the prcposal, the comenter recommended that this section be revised to read as follows:
If the Commission, the presiding officer, or the Atomic Safety and
~
Licensing Board designated to rule on the admissibility of contentions
_____.a_m
_____m.--__--
. i determines that any of the admitted contentions constitute pure issues of law, those contentions must be decided on the bcsis of briefs or oral
~
argument according to a schedule determined by the Commission or the presiding officer.
The intent of the proposed rule in subsection (d)(2)(iv) was that purely legal contentions, which occur rarely, may be admitted as issues in the proceeding.
Howe'ver, they will not be a part of an evidentiary hearing, but rather, will be handled on the basis of briefs and oral arguments.
The language of f 2.714(d) has been modified as suggested above to clarify this intention.
Former Commissioner Asselstine also suggested in the proposeo rule additional changes in the Commission's rules on intervention ano public participation in the licensing process. Cha'nges to 10 CFR 96 2.104,~2.71'4, 2.751a and 2.752 were proposed to require early publication of notice of receipt of an application, to specify the time within which petitions for intervention can be filed, to separate the decision on standing from the decision on the validity of contentions, to provide for a mandatory ninety day period of time to draft contentions, and to create a two stage screening process to determine whether or not a genuine issue of a material fact exists with respect to each contention.
Those commenters who favored former Commissioner Asselstine's proposals felt they would improve the efficiency of the hearing process without imposing additional burdens on interveners.
They were thought to be logical and easy
- 23 ' -
c to understand and dealt with the fact that although the hearing clock begins when an application is docketed, much of the documentation of interest-to interveners may not be ready for some time. Some commenters felt the proposals.would encourage informal discussion and resolution of disputes and were generally more equitable and fair.
'Those commenting unfavorably on the Asselstine proposals felt they would exacerbate the current problems of instability and unpredictability in the
' hearing process. The use of provisional admission and the notice of receipt proposals would only add additional steps to the hearing process without
' increasing its effectiveness. They felt presiding officers alreaoy have the authority to reject petitions for intervention prior to submission of
. contentions and do so.
These proposals would substantially increase the number of parties and contentions without any countervailir,g benefit.
Other commenters, although favoring the approach of Commissioner Asselstine, believed discovery should take place before contentions and that too much discretion was being given to the presiding officer to dismiss contentions.
The Commission has considered the consents on Commissioner Asselstine's proposals and concluded that it does not wish to take any additional action regarding these proposals at this time. Several of them address the same aspects of the hearing process, e.g. the filing of contentions, as the proposed rule changes made by the Commission, and, the Commission has chosen l-to adopt those rules essentially as proposed.
.. - 2.
Subpoenas (10 CFR.6=2.720) Discovery Against NRC Staff (Item 3)
The proposed hmendments to 10 CFR 9 2.720(h)(2)(ii) would. codify two existing grounds used by NRC staff to object to responding to interrogr.ories from parties in NRC adjudicatory proceedings.
This change would enable the staff-simply to cite the provisions of the rule in objecting to a request, thereby conserving limited staff tire and resources. The first ground for objecting reflects' existing NRC practice in which a response stating that the requested information is available in NRC public document roums or in public compilations and providing sufficient information to enable a party to locate the material requested is considered adequate.
The second ground would limit the scope of an interrogatory by barring the requestor from asking the NRC staff to explain its reasons for not using data, assumptions and analyses where the NRC staff did not rely on this information in -its review. Persons submitting interrogatories would also be prevented from asking the Staff to perform additional research or analytical work beyond that needed to support the NRC staff's position on any particular matter.
Requestors could continue to submit interrogatories seeking to elicit factual information reasonably related to the NRC staff's position in the proceeding, including data used, assumptions made and analyses performed by the NRC staff.
The commenters who supported the proposed amendments did so because they believed it would be advantageous if certain established and well recognized precedents cor.raonly used in NRC adjudicatory proceedings were codified in NRC's Rules of Practice. According to the connenters, the perceived m_.,___________-
.25.-
advantages of codification includ'ed conservation of increasingly limited NRC staff resources, increased use of accep'ted legal procedures and reduction of-delays in the application review process.
One commenter stated that these procedures should not be limited to the NRC staff but that' they should be equally available to all parties to any NRC adjudicatory proceeding. Sevardi commenters who opposed the rule, also made this comment.
One commenter supported codification in principle but pointed out that-the proposed amendments as presently drafted, do not accurately reflect existing precedent.
For example, the proposed amendments convert a statement indicating the availability.of a document, long recognized as an acceptable response, into an acceptable rationale for not responding. The commenter also took issce with the prohibition against the submittal of questions requesting the NRC staff to explain why it did-not use certain alternative data or assumptions or perform certain analyses. According to the commenter, questions of this type wculd not require the staff to perform additional research; the staff need only respond by providing an explanation.
The commenters who opposed placing additional restrictions on interrogatories l
to the NRC staff did so for a variety of reasons. Considered unfair, unnecessary and unwise as a natter of policy, the proposed amendments were 1
criticized because they would defeat the basic purpose of discove'/;
. obtain relevant information on issues raised in and pivotal to the proceeding, thereby preventing surprise at trial.
9
A number of comraenters noted that the Staff is a major if'not crucial party J
i because it is the party with the technical resources and expertise.
1 Interveners need full opportunity to understand and question the staff's position. Moreover, the staff should be held accountable for its actions.
This proposal could restrict the flow of information and would place the burden on interveners to locate information bearing on the staff's position.
This would increase intervention costs. The current rules provide ample protection for the staff.
If anything, discovery against the staff should be increased rather than decreased.
A number of commenters opposed to the rule change expressed concerns similar to those described above made by supporters of the rule. They were concerned that the proposed rule would improperly shield the staff from its obligation to explain and justify its position.. The stated rationale for-the rule--caselow on the issue of requiring extensive independent research--does not support the prcposal in the view of one comenter.
The staff may have examined alternative assumptions, data and analyses and chosen not to rely on them.
Interrogatories asking the staff to provide an explanation for why one particular source of data or analysis was chosen is fair discovery.
Several commenters argued that parties are entitled to know not just the facts supporting the staff's position but whatever facts are in the staff's possession.
It is unreasonable and unfair to limit discovery to information that supports the staff's position.
Relevant facts which do not support the staff's final position could be concealed.
.,_____.-__-____.--.w.
. _.. ~. -.. _ -
.. A number of commenters were also critical of the assertion that this proposal was an attempt to conserve staff resources.
Several asserted that the existing rules already give the staff special status in responding to discovery.
If the staff is to remain a full party, it should be equal not privileged. Commission arguments that this rule is necessary to preserve scarce staff resources are not consistent with positions previously taken with 4
respect to other parties to NRC proceedings. The Commission has consistently taken the view that parties are not excused from hearing obligations due to a lack of resources.
Inhibiting the flow of information is not an appropriate way ta deal with scarce staff resources. The Commission should either seek additional appropriations or eliminate party status for the staff.
If the Commission wants to institutionalize the two objections discussed in the proposal they should be made applicable to all parties not-just the staff.
Commenters representing applicants asserted that discovery against them has
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many of the same objectionable qualities--asking for docunents already on the docket or requesting the applicant to perform new analyses. These comrenters saw no justification for codifying the NRC caselaw solely for the benefit of the Staff.
A rumber of commenters were also critical of the second elenent of the proposed rule which would codify the existing NRC practice that ar adequate discovery response is to state that the requested information is available in public document rooms or other public ccmp11ations.
Several commenters noted that this propos&1 does more than just codify existing practice.
If that were 4
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1 all' it did, the basis for it is weak, because citing a rule rather than caselaw is not a meaningful reduction in staff workload. The proposal converts a mettiod of response (citation to a specific document) into grounds for not responding. Under the proposed rule the Licensing Board must determine if information is reasonably obtainable from the public document room or another source.
But the Licensing Board won't readily be able to determine this on its own. The staff might as well respond at the outset with the information which constitutes an adequate response under existing practice--title, page reference and location of document--rather than object and become involved in a round of pleadings to determine the Staff's duty to respond.
Several commenters objected to the proposal because of the impact they felt it could have on specific type's of proc ~eedings. One commenter objected to limitations on interrogatories to the staff in enforcement proceedings regarding alternative assumptions ano analyses not relied on. The concern was that if the staff refused to rely on a particular analysis performed by the licensee or its contractor in determining compliance, litigation of the issue could be protracted if the staff were not required to address it during discovery.
Other commenters objected to the application of these changes to High Level Waste (HLW)Licensingproceedings. The Commission has established the procedures for the HLW licensing proceeding in a final LSS rule which added a new subpart J to 10 CFR Part 2 (50 Qd. Reg. 14925, April 14, 1989).
- However,
. the Commission is now in the process of evaluating whether any additional
)
modifications are needed to these provisions. As part of its evaluation, the Commission.is considering whether any of the provisions in the final I
4 amendments on regulatory reform that would not already be included in subpart J by cross-reference, should be added to subpart J.
Section 2.1000 of subpart I
l J cross-references any sections of general applicability in subpart G of Part
.j 2 that will continue to apply to the HLW licensing proceeding.
As such, all but one of the provisions in the final regulatory reform rule (section 2.714, which requires contentions to_show that a genuine dispute exists on an issue of law, fact, or policy) will apply to the HLW proceeding.
However, subpart J contains a new provision on contentions, section 2.1014, and consequently section 2.714 would no longer apply to the HLW proceeding. The Commission intends to evaluate the need to extend the " genuine issue of fact" standard to the HLW proceeding. A determination of such a need.woul.d result in the Commission proposing a rule amending 10 CFR 5 2.1014.
As the Commission noted in the Supplementary Information to the final LSS rule --
... the Comission is comnitted to do everything it can to streamline its licensing process and at the same time conduct a thorough safety review of the Department of Energy's application to construct a high-level waste repository.
The negotiators to this rulemaking have made a number of improvements to our existing procedures. However, more improvements may be necessary if the Commission is to meet the tight licensing deadline established by the Nuclear Waste Policy Act of 1982, as amended.
By publishing this rule, the Commission is not ruling out further changes to its rules of practice, including (further changes to the rules contained in the negotiated rulemaking.
50 Fed. Reg. 14925, 14930, April 14,1989).
The Commission has decided to adopt the amendment to 19 CFR 6 2.720(2)(h)(ii) as proposed. The right of parties to file interrogatories against the staff
4
. in certain circumstances is retained; however, the breadth of permissible interrogatories will be limited to those which address factual information related to the' staff's position in the proceeding, such as data useo, assumptions made, and analyses performed by the staff.
To the extent that discovery elicits otherwise unavailable factual information concerning the basis for the staff's position on a particular issue in a proceeding, a party should be better prepared for trial. At the sarne time, the staff should be able to produce the factual information requested with minimal disruption of its limited resources.
Staff documents relevant to a proceeding are publicly available as a matter of course unless there is a compelling ju'stification for their nondisclosure. These publicly available documents reasonably disclose the basis for the staff's position. Thus formal discovery against the staff may legitimately be restricted to minimize staff resources involved in time consuming discovery procedures.
The Commission does not believe that the staff should be called upon in advance of trial to explain why it did not use other data or be required to perform additional studies.
Interrogatories which elicit what data the staff has relied on and why are acceptable.
Interrogatories which ask the staff to describe what other data is av3ilable and to explain why it wasn't relied upon will not be permissible.
So long as prior to the trial the other parties have an opportunity to learn what the staff has done, they will be able to show at the hearing what, in their view, the staff should have done.
By eliminating L_____.
L..
. these burdensome interrogatories the Commission will conserve staff resources while retaining a fair hearing process for all parties.
The second proposed change to 10 CFR $ 2.720(h)(2)(ii) does not, despite suggestion by some commenters to the contrary, add any new bases for objecting to interrogatories.
The change merely adds a specific reference to the Comission's Public Document Room and Local Public Document Rooms (PDRs) to
' existing language. This addition clarifies that if an interrogatory requests information alteady in the PDRs, such information is " reasonably available from any other source" and, therefore, need not be provided as stated in the existing rule. A sufficient answer to an interrogatory involving such documents would be the title and a page. reference to the relevant document.
3.
Evidence (10 CFR 5 2.743) Gross-Examir,ation (Item 4)-
The proposed amendment to 10 CFR 5 2.743 would require a partyv to a proceeding to obtain the permission of the presiding officer in order to conduct crocs-examination and would bar the presiding officer from considering any request to cross-examine unless the request was accompanied by a cross-examination plan containing specified information. The required plan would include a brief description of the issues on which cross-examination would.be conducted and a proposed line of questions to achieve stated objectives together with the expected answers. The cross-examination plans would be kept confidential until the Licensing Board issued its decision.
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The commenters who supported the proposed amendments believed the requirement for a plan would encourage' parties to think out their case in advance and
. would lead to better questions and a shorter proceeding. The' proposed' changes I
would add structure to cross-examination and decrease repetitive and cumulative questions. Some noted that cross-examination plans are essentially already standard practice, while others indicated their belief that the proposed changes would improve the Board's ability to control' proceedings.
One consenter, in supporting the proposal, noted that the I;RC was within its authority to limit cross-examination to cases where it is required for full and true disclosure of the facts; nothing in the Atomic Energy Act or the Administrative Procedure Act guarantees an absolute right to cross-examine witnesses. Seacoast Anti-Pollution League v. Costle, 572 F.2d 880 (D.C. Cir.
1976).
Several of these same commenters believed the Commission's proposed changes did not go far enough.
One asserted that the changes would not change the hearing process but would only increase procedural requirements that will ao little absent a vigilant presiding officer.
The Commission should only permit cross-examination if the points to be made could not be achieved by written testimony. Under such an approach, cross-examination would ba reserved for impeaching credibility.
Several suggested that a party's cross-examination should be limited to issues or contentions that the party had placed in controversy.
Another suggested that if more than one interested party had raised an issue, lead responsibility for litigating it should be assigned to one party.
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One commenter stated that this. proposal was so watered down from the Commission's; earlier proposal in its Advanced Notice as to be almost meaningless. The. Board.should permit cross-examination only where, based on written evidence,'there is a genuine anti substantial issue of fact and I
resolution would be substantially assisted by cross-examination. This commenter also believed that the rule should provide for establishing time limits and noted that requiring and enforcing time limits is routine in federal courts and other administrative agencies.
Connnenters opposed to the proposed rule had concerns both with the proposal as a whole and,with specific aspects of it.
Several asserted that cross-examination is a fundamental rigit, and is especially important in NRC proceedings which deal with matters of public health and safety.
In their view, the public interest ~fn a' full look at safety inatte'rs outweighs an interest in reducing a cluttered record.
The proposal seeks to gain efficiency at the expense of quality decision-making and the openness of the
- process, To restrict cross-examination is to negate the purpose of adjud',catory proceedings--to adjudicate disputed facts.
The purpose of cro;s-examination is to explore credibility, inconsistency and bias.
Effective cross-examination requires an element of surprise and the ability to shift direction.
One comenter asserted that the stated reliance on caselaw is misplaced. While the caselaw does support requiring parties to demonstrate the need for cross-examination, it has never suggested that barriers may be used to actively preclude the public litigant from participating.
I c.
u y 1 Several commenters argued that the proposal imposes a disproportionately severe impact on interveners. Some argued that the proposed rule was a.
blatant attempt to limit the record to testimony prepar'ed by applicant and staff who have the resources to file a large amount of direct testimony.
Interveners are more likely to make their case on cross-examination because they lack the resources to produce their own witnesses.
A number of commenters also opposed the rule as unnecessary because the existing rules, 10 CFR 59 2.628 and 2.757, are more.than sufficient to control cross-examination. The conduct of a hearing end the scope and amount of cross-examination are traditionally within the presiding officer's discretion.
One commenter noted that prefiled cross-examina.tico plans are essentially already standard practice. Ancther stated that such requirements are unnecessary for experienced counsel <and unenforceable against others. Several noted that the proposal could waste.more time than it would save by creating litigation of the cross-examination plans and by creating a new area for appellate litigation. The remedy is for the board to control the hearing, not add new paperwork requirements on counsel.
Another commenter took a slightly different approach in opposing the proposed rule. This commenter felt there were preferable means to limit argumentative and unnecessary cross examination.
Parties should be limited to litigating only. their own contentions and only their stated interest in the contention.
If parties have a common interest, their contentions may be jointly admit'ted end lead responsibility assigned for litigating the contention, including
p'-
. c cross-examination.
Rather than develop more paperwork, the Commission should simply reiterate that hearings be conducted in strict accordance with the NRC's evidentiary practice.
i One commenter questioned whether a Board in rejecting a cross-examination plan would not be prejudging an issue because the presiding officer might not-understand the party's overall litigation strategy. Another que'stioned whether NRC can legally require a party to produce its workproduct to the Board and ultimately to other parties. On the other side, one commenter expressed concern that the filing of plant, in confidence with the Board'could unfairly influence the Board because parties could expound their theory of the case under the guise of describing objectives to be schieved during cross-examination.
One commenter argued that the proposed rule change violates the requirements of the National Env.ironmental Policy Act (NEPA) for full consideration of all environmental impacts of a decision to license a nuclear power plant..Another commenter asserted that it would violate due process requirements if proceedings to impose civil penalties as well as other enforcement proceedings are not excluded from the rule.
I Several objections to specific elements of the proposal were also noted. Many felt fifteen days to review prefiled testimony and prepare cross-examination plans was insufficient. A number of commenters objected to the requirement that the plans include not only questions but also the expected answers to l
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d' questions. Most felt a statement of objectives and a proposed line of questions was sufficient for a Board to determine relevancy.
If snswers are required, then a party is in effec't limited to asking questiens for which he already knows the answers. A requirement for prefiled questions and answers would unfairly limit the scope of cross-examination because it would not allow questioners to follow up on the unexpected.
Cross-examination is dynamic and litigants need the flexibility to try different tacks. The logical extension of the proposed requirement would be plans for redirect and recross-examination which would further delay a proceeding.
Several commenters also noted their belief that this requirement could have a negative impact on discovery. They feared it could encourage a lack of full and prompt response to discovery by applicants in order to make it difficult for interveners to file adequate plans and, consequently, to conduct cross-examination.
~
The Commission believes that cross examination plans can have a very beneficial impact on the conduct of a hearing by encouraging parties to develop and evaluate the objectives they expect their cross-examination to achieve and by giving the presiding officer information to enable her or him to effectively manage the proceeding.
The Commission disagrees with those commenters who believe that recuiring cross-examination plans will sacrifice the quality or openness of its decisionmaking for the sake of efficiency.
Cross-examination plans have been used effectively in a number o' *,ommission i
proceedings. This rule merely formalizes the practice. We do not believe it is unduly burdensome to require a party to a proceeding to examine prefiled
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,t
.e
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ite'stimony sufficiently to be able to articulate to the presiding officer the i.
_ nature of the questions the party believes are necessary to illuminate the issues of concern to them.
The regulation makes clear that parties are entitled to conduct.such cross-examination in accordance with their plan as is necessary for full and true disclosure of the facts. This is the standard set forth in section 7(c)
'of the Administrative Procedure Act, 5 U.S.C. 556(d) and existing section 2.743(a). That provision has never been understood to confer unfettered rights to cross-examine witnesses. See Seacoast Anti-Pollution League v. Costle, 572 F.2d 872 (1978); cert. denied, 439 U.S. 824 (1978); Northern States Power Co. (Prairie Island Nuclear
. Generating Plant, Units 1 and 2), ALAB-244, 8 AEC 857, 867 n.16 (197a),
reconsideration denied, ALAB-262, 8 AEC 1175, aff'd~., CLI-75-1, 1 NRC 1
~
(1975). The standard in the rule will assure that issues are appropriately
- examined and it is also consistent with the C. omission's chl ?gations under NEPA to consider the environmental impacts of a decision. We do not believe, as suggested by some commenters, that a more restrictive test for cross-examination, ea where genuine and substantive issues will be substantially assisted by cross-examination, is appropriate. The requirement for submittal of cross-examination plans together with the discretion granted to the presiding officer elsewhere in the regulations should be sufficient to assure that unnecessary, argumentative or duplicative cross-examination is limited.
l l
rd
. This regulation will not inhibit a party's ability to use the element of surprise or shift direction as the cross-examination progresses. The plans will be kept confidential by the presiding officer.
Parties must submit objectives and a proposed line of questions. They are not required to submit all of the questions to be asked.
If the objectives are sufficiently developed and described, there will be no impediment to shifting the direction of questioning in response to the answers received because the presiding officer will be aware of the ultimate objective of the questioner or be able to ascertain through briet queries of the cross-examiner why the change in direction is appropriate. The Commission does agree with a number of
'4 commenters that a requirement to include the postulated answers to the questions may create an unnecessary burden on the preparer of the plan. The intent of the requirement was to help the presiding officer understand more easily how the proposed line of ques'tions would ach'ieve'the stated objective.
We have concluded, however, that the statement of objectives can provide sufficient notice to the presiding officer-cf the party's intentions and the final rule deletes the requirement to includt in the plan exprc.ted responses to proposed questions.
Several concenters were also concerned that 15 days was insufficient time to examine testimony and prepare cross-examination plans. Deleting the requirement to incluce postulated answers should eliminate much of the difficulty which commenters identified for preparation of the plans. Therefore, we are retaining the 15 day prefiling requirement.
Several commenters suggested that the Commission should impose strict limits on when cross-examination will be available, e.g., for impeaching credibility or where a genuine and substantive issue is substantially assisted by
]
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cross-examination, and that it should limit the issues on which an intervenor may cross-examine and assign lead responsibility to a party when several have
)
raised the same-issues. The agency's rules currently authorize a presiding officer to consolidate parties and limit or consolidate cross-examination.
10 CFR 66 2.715a, 2.718 and 2.757.
Dy mandating the development of cross-examination plans, this rule creates a valuable input for the presiding l
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i officer to make such consolidation determinations. The Consission believes it is desirable to retain the presiding officer's flexibility to decide whether such consolidation is appropriate and therefore, has not limited the presiding officer's discretion in this regard.
(
One commenter noted that civil penalty and enforcement proceedings should be excluded from these requirements. As drafted, proposed subpart (b)(3) of 6 2.743 provided that paragraphs-(b)(1) and (2) of the section do not apply to proceedings under Subpart B of this part for modification, suspension, or revocation of a license. This was intended to continue the existing exemption for enforcement proceedings from requirements regarding prefiled testimony and provide a similar exemption concerning cross-examination plans. The Commission agrees that civil penalty proceedings as an additional type of enforcement proceeding should be included within these exemptions. The final rule has been revised to clarify the intended exemptions and to include civil penalties within the exemptions.
4 Authority of Presiding Officer to Dispose of Certain Issues on the Pleadings (10 CFR 5 2.749) (Summary Disposition - Item 5)
l l l l
The proposed amendment to 6 2.749(a) would permit motions for summary disposition to be filed at any time during the proceeding, including during the hearing. Current rules provide that summary disposition motions shall be filed within such time as may be fixed by the presiding officer and also provides that the presiding officer may dismiss motions filed shortly before the hearing commences if responding to or ruling on the motion would divert substantial resourcys from the hearing. The proposed change is intended to give parties maximun flexibility to file such motions and to terminate litigation at any point in the proceeding when it becomes apparent that no genuine issue of material 6:t remains in dispute.
Those concenters who favored the proposed change felt that it would help simplify and rationalize the hearing process by preventing unnecessary' litigation. Resolution of issues would be permitted at any point where it became apparent further prosecution is unnecessary. Thus, the proposal could expedite elimination of frivolous contentions. Another commenter pointed out that section 2.749(c) would still be available to protect a party who for valid reasons could not respond to a motion for summary disposition, and would thus provide sufficient protection against inopportune motions.
Several commenters recommended that the proposal be clarified to provide that during a hearing, where cross-examination has not created a genuine disputed j
issue and the intesvenor has not called any witnesses, the Board is empowered to grant summary disposition on the applicant's testimony or the evidentiary record, without a requirement for supporting affidavits.
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1. Commenters opposing the proposed change generally felt that it would not increase the effectiveness of the hearing process, but rather could result in chaos and enormous inefficiencies during the hearing process. Several commenters were particularly concerned that this change would create the opportunity for harassing motions.
Well-funded parties could overwhelm other parties with paperwork at crucial times. Several commenters felt the change would be unfair to interveners, who generally have fewer resources and rciy on volunteers. Several indicated that time was needed before trial to prepare testimony and review that of others.
If summary judgment motions could be filed anytime, they could divert resources away from trial preparation.
In addition, several expressed concern that motions could be filed before discovery was completed and before opponents of the motion cculd have obtained information to respond to the motion.
This could result in legitimate sefety issues being lost and never litigated. One commenter noted that this proposed change constitutes a departure from federal practice. The purpose of summary judgement is to eliminate issues from hearing, and they are appropriately filed before a hearing begins.
Once the hearing has started, use of summary
.iudgment motions is more likely to slow down rather than speed up the process.
Another commenter noted that the rule change is unnecessary because the current rule would permit summary judgment motions at all times if the J
l presiding officer permits.
If the rule is changed, however, the commenter argued that the last sentence of the current 10 CFR 6 2.7a9(a) should be retained.
It provides that the Board may summarily dismiss summary
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- ' disposition motions if they are filed shortly before or during and hearing and would result in a substantial diversion of resources..The commenter expressed concern that without this sentence the presiding officer's authority to cor, trol the hearing process would be diminished. The Board should be ab'e to 4
dismiss or at least hold in abeyance motions filed during the hearing that I
have the potential to disrupt the hearing.
q Summary disposition is a significant procedural tool to eliminate unnecessary hearing time spent on testimony and cross-examination where no material issues remain in dispute. The Comission has evaluated the coments on sumary disposition and continues to believe that the advantages for streamlining the hearing process by explicitly permitting sumary disposition motions-to be filed at any time during the proceeding outweigh the potential disadvantages I
for the process. The Comission's regulations in 10 CFR ! 2.749(c) provide safeguards against potential abuses of the sumary disposition procedures. A party who is unable to respond to such a motion because discovery is incomplete may state his or her reasons in a response to the motion and the presiding officer may refuse to grant summary disposition or take other appropriate action. The Comission believes that this provision provides sufficient protection in those instances where a party opposing a motion for sumary disposition is urable to respond. However, the Commission recognizes the validity of the concern expressed by several commenters that sumary disposition motions filed close to the start of or during a hearing have the e
potential for prolonging the hearing. Therefore, a sentence has been cdded to 10 CFR E 2.749(a) to give the presiding officer the discretion to ditnJos or l
k
. hold in abeyance summary disposition moticns which could divert substantial resources from the hearing and thereby prolong the hearing process.
5.
Proposed findings and Conclusions (10 CFR 5 2.754) and Appeals to the Commission From Initial Decisions (10 CFR S 2.762) (Limitations - Items 6 and 7)
The proposed amendment to 10 CFR 5 2.754(c) wou'd limit an intervenor's filings of proposed findings of fact and conclusions of law to issues which that party actually placed in controversy or sought a place in controversy in the proceeding. The proposed amendment to 10 CFR S 2.'.62(d) would similarly limit the issues which an intervenor could raise in an ar. pellate brief. Under current practice, a party may file proposeo findings and conclusions of law on any issue in the proceeding and may also appeal on sil issues in the proceeding. The cnly limitation is that a party must have a discernible interest in the outcome of the particular issue being considered. The purpose of the proposed change is to ensure that presiding officers and 49'ency appellate tribunals will be able to focus on disputed issbes in a proceeding as presented and argued by parties with a primary interest in the issue. The change would also avoid having these officials inundated with filings from persons with little or no stake in the resolution of a particular issue.
The proposed amendments did not apply to the license applicant or the NRC staff. Applicants have the burden of prcof to demonstrate that the action should be taken and thus should be free to submit findings on all issues which
c
. could affect the Commission's decision to grant a license or to take an appeal from an adverse decision. The NRC staff has an overall interest in the proceeding to assure that the public health and safety and environmental values are protected.
Commenters supporting the change agreed that it would improve the hearing process and would contribute to the overall effort to streamline and make the hearing process more efficient. Several indicated they felt this change had considerable merit and would ensure that filings are submitted by part,1es who have a real concern and interest in resolution of issues. One supporter of the proposal suggested that the current policy which permits appeals by a party on any issue whether they have litigated it or not is inconsistent with the basic tenet of hearings to resoive disputes between specific p'rties.
a Redundant filings are unnecessary and generally net' helpful.
One commenter suggested that the Commission go fufther and pretlude interveners from pursuing issues in which it has no cognizable interest.
If this were done, there would be no need to place limits on crost-examination or j
filings. Another suggested that the rule should also provide that an intervenor who fails to file proposed findings on an issue may not thereafter appeal the portion of the initial decision which deals with that issue.
Comments by opponents of the proposed change focused on three main points.
(
The first area concerned the discriminatory impact on interveners and en asserted misperception on the part of the NRC of the role of interveners in i
1
)
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NRC proceedings. Several asserted that the proposal was a denial of.due process and one comenter stated that the Administrative Prccedure Act entitles all parties to a hearing to file proposed findings of fact and conclusions of law.
5llSC557(c). Several argued that there was no logical f
explanation given for discriminating against interveners. They called attention to the fact that in its proposed rule the Commission acknowledged l
.that interveners have broad, generalized interests in protecting the hea th and safety. This interest is akin to the same kind of interest which the
- Comission found to be justification for preserving the right of the NRC staff to file proposed findings and conclusions of law.
One comenter asserted that the process of gaining aimission as a party should be sufficient to cismiss any allegations of a lack of a discernible interest in the outcome of issues raised in the proceeding.
Several comenters described the proposal as " mysterious" and confounding.
In their view, the goal of the agency shculd be to compile as full a record as possible for the decisionmakers; the NRC should not seek to limit the information it receives in any licensing proceeding.
Findings and conclusions do not harm the decisionmaker and could be helpful.
Another commenter noted that the NRC currently has less than a dozen proceedings underway, suggesting that the Hearing Boards are not overworked or overwhelmed by cases.
Comenting specifically on the limitation of appeals to issues litigated by a party, one person noted that an erroneous initial decision should be identified and corrected no matter who initially raised the issue of concern.
f 1: 'A second focus of concerns was on the impact of such a change on NRC 1
L.
l i
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- proceedings. A number of commenters suggested' that the proposal would cause l
l interveners to adopt each other's contentions and assert all issues in order to preserve their rights. This could prolong the hearing and overwhelm j.
hearings with the. volume of participation on an issue. The proposal would also make it difficult for interveners to work together, divide tasks and share the: expense of litigating issues. Such coordination now makes it possible for interveners to financially bear the cost of litigation and l
reduces redundancy in the proceeding. Currently, interveners may share issues J
i
- and an intervenor may not partic:pate fully knowing encther intervenor is I
I raising the issue. Under this propon,' if a party subsequently fails to pursue an issue, other interveners would not have the opportunity to adopt the issue. Without this opportunity, further consideration of issues would be blocked regardless of how serious or meritorious they were. Also, because of the complex and technical nature of NRC's proceedings, an intervenor may s
discover it is interested in an issue it glid not identify initially. The preposal also ignores the fact that each intervenor brings a different perspective to the proceeding and can make a unique contribution through their J
filings. Boards should be able to judge these filings and give them such l
consideration as their quality merits.
I Finally, several commenters focused on the application of this proposal to an i
affected state.
States bring a unique perspective to NRC proceedings ano f
should have the opportunity to submit filings. Otherwirie, NRC could be deprived of valuable input from the party with the most interest in a I
I l
particular issue. The State of Nevada indicated its view that under the Nuclear Waste Policy Act, a host state or Indian tribe is to be accorded the same status as the staff or an applicant. The proposed change would thus violate provisions of the NWPA.
Another group of commenters, while generally favoring the proposal, disagreed with the language which would permit filings and appeals on issues which interveners " sought to place in controversy".
If an issue has not been admitted into the proceeding then no record will have been developed and nu basis for proposed findings will exist.
It is appropriate to allow an appeal and briefs on the basis that a contention was erroneously rejected. But this proposal would appear to allow appeals on a much broader basis and permit filings on the merits of the contentions.
The Commissicn has reviewed the comments on the proposed changes to 10 CFP. EE 2.754 and 2.762. After consideration of the various arguments put forth by the ccmmenters the Commission is persuaded that the proposed changes would have little beneficial impact on the length of the hearing process, but do j
l have the potential to significantly complicate proceedings. The Commission was particularly persuaded by the number of commenters who indicated that the likely response to such a change would be that interveners would adopt each other's contentions and each pursue all possible contentions in order to l
preserve their rights. Although the Commission's rules provide for consolidation of parties, cross-examination, etc. where parties' interests are coincident, the adoption of a rule which would encourage the proliferation of
4
+, 3 contentions would be counterproductive to the intended effect of these proposed changes to the Commission's hearing procedures.
The Commission has also examined the assertion that the proposed rule could violate a provision of the Administrative Procedure Act, 5 U.S.C. 557(c).
That section provides that:
"Before a recommended, initial, or tentative decision, or a decision on agency review of the decision of subordinate employees, the parties are entitled to a reasonable opportunity to submit for the consideration of the employees participating in the decisions--(1) proposed findings or conclusions; or (2) exceptions to the decision or recommended decis:ons of subordinate employees or to tentative agency occisions; and (3) supporting reasons fop the exception or proposed findings'or conclusions."
There has been little analysis of this espect of the APA in the case law; see, e.g. Klinestiver v. DEA, 606 F2d.1182 (D.C. Cir.1979), and we recognize thereissomeuncertaintyabcuttheappropriatereadingofsection557(c). k'e believe, however, that the proposed rule would be in accord with the Administrative Procedure Act because it preserves the opportunity for parties to file findings of fact, conclusions of law, and exceptions to initial decisions with respect to those issues which the party had specifically raised i
l as concerns in the proceeding.
Nevertheless, we have concluded thot the existing regulations, 10 CFR 55 2.715a and 2.718, give the presiding officer
sufficient authority.to consolidate parties for purposes of filing proposed findings of fact and conclusions of l w, where multiple filings would not contribute to resolution of the issues. Therefore, the proposed amendment has not been adopted.
Miscellaneous Issues l
Several commenters included their views en other possible rule changes discussed by the Commission in its 1984 Request for Public Comment on Regulatory Reform Proposals (49 FR 14698, April IE,1984) which preceded this proposed rule. Those proposals are not a part of this rulemaking. The Corrnission evaluated comments on the 1984 proposals as part of the decision-making process which led to the choice of the five proposed changes which constitute this rulemaking. No further discussion of those initial proposals is necessary.
The revised rules do not apply to civil penalty proceedings conducted uncer 10 CFR 9 2.205.
Section 189a. of the Atomic Energy Act does not provide for interested persons to participate in such proceedings.
i These amendments will take effect thirty days after publication in the FEDERAL REGISTER. The amendments will apply only to contentions in proceedin5s initiated after that date. The Commission's rules and administrative cecisions interpreting those rules in existence prior to that date will be applied to contentions filed prior to that date.
a
. The amendments do not apply to interested states and governmental entities participating in NRC proceedings pursuant to 10 CFR 5 2.715(c).
Withdrawal of Earlier Rulemaking The Commission published for public comment on June 6, 1981 (46 FR 30341) a proposed rule to make changes to elements of its Rules of Practice, including several of the sections amended by this proceeding. Because the Commission has chosen to proceed with adoption of the changes to its Rules of Practice included in this rulemaking, the earlier proposal is withdrawn.
Environmental Impact: Categorical Exclusion The NRC has determined that this final' rule is the type'of action described in categorical exclusion 10 CFR $ 51.22(c)(1). Therefore, neither an
- environmental impact statement nor an environmental assessment has been prepared for this proposed regulation.
Paperwork Reduction Act Statement This final rule does not contains a new or amended information collection requirements subject to the requirements of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501, et seq.).
.s..
Reculatory Analysis The revisions to the Commission's Rules of Practice in 10 CFR Part 2 will improve'the effectiveness and. efficiency of NRC proceedings nIth due consideration for the rights of all participants. The changes to.10 CFR 9 2' 714 will require the proponent of a contention to submit sufficient factual information to demonstrate the existence of a genuine dispute with'the applicant or the licensee or the NRC staff regarding a material fact. This-amendment will' ensure that the resources of all participants in NRC proceedings are focused on real issues and disputes among the perties and thus it is preferable to existing requirements. The revisions to 10 CFR 9 2.720 l clarify existing practice that the staff may not be requireo:
(1) to perform additional research or analytical work beyond that required to support its position, or (2) to explain why it did not use alternative data, assumptions, or analyses in its reviews. Codification of this requirement is preferable to relying on existing case law because it will conserve rescurces trat would otherwise have to be expended in opposing such discovery requests. The final rule's provisions in 10 CFR 6 2.743 on cross-examination plans will require a party to obtain the permission of the presiding officer in order to conduct cross-examination and will bar the presiding officer from considering any such request unless it is accompanied by a plan containing specific information abo'ut the nature and purpose of the proposed line of questioning. While the use of cross-examination plans could have been left as a matter of discretion for-the presiding officer, the benefits from the use of such plans, i.e., more focused and controlled hearings, favor making use of such plans standard
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' 1 practice in NRC proceedings. The revision of 10 CFR 6 2.749 will permit the filing of motions for summary disposition at any time during a proceeding.
The current' practice leaves the timing for filing of such motions wholly within the discretion of the presiding officer. 'The final rule is preferable to continuing the present practice because making it explicit that summary disposition motions may he filed at ar.y time during the proceeding will encourage the use'of such procedures whenever an issue can be disposed of without a hearing.
Since November 1981 a number of ai+.ernative changes to improve the hearing process have beeri evaluated. by the Regulatory Reform Task Force, the Senior Advisory Group (NRC personnel)., the Ad Hoc Committee for the Review of Nuclear Reactor Licensing Reform Proposals (non-NRC persons with experier,ce in the licensing process) and through the Request for Public Co.cment on Regulatory Reform Proposal published in the Federal Register on April 12, 1984 (49 FR 14698). This final rule will improve the efficiency and effec,tiveness of NRC's hearing process while maintaining due regard for the rights of affected parties and thus is the preferred alternative. This rule does not have a significant impact on State and local governments and geographical regions, public health and safety, or the environment; nor does it represent substantial costs to licensees, the NRC, or other Federal agencies. This constitutes the regulatory analysis for this rule.
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f 7g,.
Regulat'ory Flexibility Certification j
- This final rule will not have a significant economic impact upon a substantial
. number of small entities. The amendments modify the Commission's rules of practice and procedures. Most entities seeking or holding construction permits or Commission licenses that would be subject to the revised provisions would not fall within the definition of small busir. esses found in section 34 of the Small Business Act, 15 U.S.C. 632, in tM Small Business Size Standards set out in regulations issued by the Small Business Administration at 13 CFR Part 121, or in the NRC's size standards published December 9, 1985 (50 FR 50241). Although interveners subject to the provisions likely would fall within the pertinent Small Bus ness Act definition, the impact on interveners or potential interveners will be neutral. While interveners or potential interveners will have to me~et a higher' threshold to' gain aomission to NRC proceedings'and, thereby incur some additional economic costs in preparing requests for hearing or requests to intervene, these costs should be offset by a reduction in interveners' costs once the hearing commences because infomation develop,ed to support admission to the proceeding will be used during the conduct of the proceeding.
Thus, in accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), the NRC hereby certifies that this rule does not have a significant economic impact upon a substantial number of small entities.
4 Backfit Analysis This final rule does not modify or add to systems, structures, components, or design of a fac.11ty; the design approval or manufacturing license for a facility; or the procedures or organization required to design, construct, or operate a facility. Accordingly, no b:ckfit analysis pursuant to 10 CFR !
50.109(c) is required for this final rule.
List of Subjects
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Administrative practice and procedure, Antitrust, Byproduct material, Classified information. Environmental protection, Nuclear materials, Nuclear power plants and reactors, Penalty, Sex discrimination, Scurce material,
.Special nuclear material, Waste treatment and disposal.
For the reasons set out in the preamble a,nd under the authority of the Atomic -
Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and 5 U.S.C. 553, the Nuclear Regulatory Commission is adopting the following amendments to 10 CFR Part 2.
PART 2--RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS
- 1. The authority citation for Part 2 continues to read as follows:
L___________
. AUTHORITY:
Secs. 161, 181, 68 Stat. 948, 953, as amended (42 U.S.C.
2201, 2231); sec. 191, as amended, Pub. L.87-615, 76 Stat. 409 (42 U.S.C.
2241); sec. D1, 88 Stat. 1242, as amended (42 U.S.C. 5841); 5 U.S.C. 552.
Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104, 105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, as amended (42 U.S.C. 2073, 2092, 2093,2111,2133,2134,2135);sec.102, Pub.L.91-190,83 Stat.853,as amended (42 U.S.C. 4332); sec'. 301, 88 Stat. 1248 (42 U.S.C. 5871). Sections 2.102, 2.103, 2.104, 2.105, 2.721 also issued under secs. 102, 103, 104, 105, 1
183, 189, 68 Stat. 936, 937, 938, 954, 955, as amended (42 U.S.C. 2132, 2133, 2134,2135,2233,2239).
Section 2.105 also issued under Pub. L.97-415, 96 Stat. 2073 (42 U.S.C. 2239). Sections 2.200-2.206 also issued under secs. 186, 234, 68 Stat. 955, 83 Stat. 444, as amended (42 U.S.C. 2236, 2282); sec. 206,88 Stat 1246(42U.S.C.5846). Secticr 2.600-2.606 also issued unoer sec. 102, Pub. L.91-190, 83 Stat. 853, as amended (42 U.S.C. 4332).
Sections 2.700a, 2.719 also issued under 5 U.S.C. 554. Sections 2.754, 2.760, 2.770, 2.780 also issued under 5 U.S.C. 557. Section 2.764 and Table 1A of Appendix C also issued under secs. 135, 141, Pub. L.97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). Section 2.790 also issued under sec. 103, 68 Stat. 936, ds amended (42 U.S.C. 2133) and 5 U.S.C. 552.
Secticns 2.800 and 2.808 aisc issued under 5 U.S.C. 553.
Sectier, 2.809 also issued under 5 U.S.C. 553 and sec. 29, Pub. L.85-256, 71 Stat. 579, as amended (42 U.S.C. 2039).
Subpart K also issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239); sec. 134, Pub. L.97-425, 96 Stat. 2230 (42 U.S.C. 10154). Appendix A also issued under sec. 6,
'l. :
- 56'-
N Pub. L.'91-560,.84. Stat. 1473 (42 U.S.C. 2135). Appendix B also issued under-sec. 10. Pub. L.99-240, 99 Stat. 18a2 (42 U.S.C. 2021b et seq.).
- 2. In 5 2.714, paragraphs (e) through (h) are redesignated as paragraphs (f) through(1).
In paragraphs (a) and (g) of $ 2.714, the words " paragraph (d) of this section" shich appear in the fourth sentence of paragraph (a)(1), in the single sentence in paragraph (a)(2) and in the single sentence in paragraph (g) are revised to read " paragraph (d)(1) of this section."
Paragraphs (b), (c), and (d) of 9 2.714 are also revised and a new paragraph (e) is added to read as follows:
2.714 Intervention.
.s (b)(1) Not later than fifteen (15) days prior to the holding of the special prehearing conference pursuant to 9 2.751a, or if no special prehearing conference is held, fifteen (15) days prior to the holding of the first prehearing conference, the petitioner shall file a supplement to his or her petition to intervene that must include a list of the contentions which petitioner seeks to have litigated in the hearing. A petitioner who fails to file a supplement that satisfies the requirements of paragraph (b)(2) of this section with respect to at least one contention will.not be permitted to j
participate as a party. Additional time for filing the supplement may be 1
granted based upon a balancing of the factors in paragraph (a)(1) of this section.
i l 1 (2) Each contention must consist of a specific statement of the issue of law, fact, or policy to be raised or controverted.
In addition, the petitioner shall provide the following information with respect to each contention:
(1) A Brief explanation of the bases of the contention.
(ii) A concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner intends to rely in proving the cont'ention at the hearing, together with references to those specific sources and documents of which the petitioner is aware and on which the petitioner intends to rely to establish those facts or expert opinion.
(iii)Sufficientinformation(whichmayincludeinformationpursuantto paragraphs (b)(2)(1) and (ii) of this section) to show that a genuine dispute exists with the applicant on a material issue of law, fact, or policy. This showing must include references to the specific pcrtions of the application (including the applicant's environmental report and safety report) that the petitioner disputes and the supporting reascns for each dispute, or, if the petitioner believes that the application fails to contain information on a relev'nt matter as recuired by law, the identification of each failure and the a
supporting reasons for the petitioner's belief.
On issues arising under the National Environmental Policy Act, the petitioner shall file contentions based on the applicant's environment' 4 eport. The petitioner can amend those contentions or file new contentions if there are data or conclusions in the NRC draft or final environmental impact statement, environmental assessment, or any supplements relating thereto, that differ significantly from the data or conclusions in the applicant's document.
l It.
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(c)' Any party to a' proceeding may file an. answer'to a petition for leave to intervene within' ten (10) days after service of the petition, with particular-reference to the. factors set forth in paragraph (d)(1) of this section.. The staff may file such an answer within fifteen (15). days after se'evice of the
. petition.
(d) The Commission, the presiding officer, or the atomic safety and licensing board designated to rule on petitions to intervene and/or requests for hearing shall permit intervention, in any hearing on an application for a license:to receive ~and possess high-level' radioactive waste at a geologic repository operations area, by the State in which such area is located and by any affected Indian Tribe as defined in Part 60 of this chapter.
In all.other circumstances, such ruling body or officer shall, in ruling on--
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(1) A petition-for leave to intervene or a request for a hearing, consider.
the following factors, among other things:
(1) The nature of the petitioner's right under the Act to be made a party
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to the proceeding.
(ii) The nature and extent of the petitioner's property, financial, or other interest in the proceeding.
(iii) The possible effect of any order that may be entered in the proceeding on the petitioner's interest.
(2) The admissibility of a contention, refuse to admit a contention if:
(1) The contention and supporting material fail to satisfy the requirements of paragraph (b)(2) of this section.
In determining whether a genuine dispute l
exists on'a material issue of law, fact, or policy, the Commission or the presiding officer shall consider whether the information presented pursuant to
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l' paragraph (b)(2) of this section prompts reasonable minds to inquire further as to the validity of the contention; or (11) The contention, if proven. wculd be of no consequence in the proceeding because it would not entitle petitioner to relief.
(e) If the Commission, the presiding officer or the atomic safety.and licensing board designated to rule on the admissibility of contentions i
determines that any of the admitted contentions ccnstitute pure issues of law,
, those contentions nost be decided on the basis of briefs or oral argument according to a schedule determined by the Consission or presiding officer.
- 3. In 5 2.720, paragraph (h)(2)(ii) is revised to read as follows:
2.720 Subpoenas.,
(h)*
(2) *
(ii) In addition, a party may file with the presiding officer written interrogatories to be answered by NRC personnel with knowledge of the facts designated by the Executive Director for Operations. Upon a finding by the presioing officer that answers to the interrogatories are necessary to a proper decision in the proceeding and that answers to the interrogatories cre not reasonably obtainable from any other source, such as from the Commission's l
Public Document Room or 1.ocal Public Document Room, the presiding officer may require that the staff answer the interrogatories. Such interrogatories may
- ,- p.y seek to elicit factual information reasonably related to the NRC staff's
' position in the proceeding, including data used, assumptions made, and-
- ' analyses performed by the NRC staff.- Such interrogatories may not,.however, be addressed to' or be construed to require
- (A) Reasons for not using alternative data -assumptions, and analyses where. tne. alternative data,.
assumptions, and analyses were not relied on in the NRC staff' review; or (b)
Performance of additional research or analytical work beyond that which is needed-to' support the NRC staff's' position cr. any particular matter.
~4. In i 2.743, paragraphs (a) and (b) are revised to read as follows:
2.743 Evidence.
(a) General. Every party to'a proceeding shall have the right to present
'such oral or' documentary evidence and rebuttal evidence and to conduct, in accordance with an approved cross-examination plan that contains the:
information specified in paragraph (b)(2) of this section, such cross-examination as' may be required for full and true disclosure of the
' facts.
(b)Testimonyandcross-examination.
(1) The parties shall submit die tct testimony of witresses in written form, unless otherwise ordered by the presiding officer on the basis of objectior.s presented.- In any proceeding in which advance written testimony is to be used, each party shall serve copies of its proposed written testimony on each a
- b other party'at least' fifteen '(15) days in advance ~ of the session of the hearing at which its testimony is to be presentea. The presiding office may.
permit the introduction of written testirnony not so served, either with the.
l consent of all parties present or after they have had a reasonable opportunity-to examine it. Written testimony must be incorporated into the transcript of the record as if read or, in the discretion of the presiding officer, may be i
offered and adruitted in evidence as an exhibit.
(2) Any party seeking an opportunity to cross-examine shall request permission from the presiding officer.
The presiding officer shall not consider any rectuest to conduct a cross-examination unless the request is accompanied by a cross-examination plan that contains the folicwing information:
'(1) A brief description of the issue or issues on which cross-examination will be conducted; (ii) The objective to be achieved by cross-examination; and (iii) The proposed line of questions that may logically lead to achieving the objective of the cross-examination. The cross-examination plan may be submitted only to the presiding officer and to the members of the Board and i
must be kept by them in confidence. The presiding officer shall include each cross-examination plan and any order relating thereto in the record of the proceeding certified cr appeal.
(3) Paragraphs (b)(1) and (2) of this section do not apply to proceedings under Subpart B of this part for modification, suspe.nsion, or revocation of a license or to proceedings for imposition of a civil penalty.
. 5.
In 5 2.749, paragraph (a) is revised to read as follows-l
- I 2.749 Authority of presiding officer to dispose of-certain issues on the pleadings.
(a) Any party to a proceeding may move, with or without supporting.
affidavits, for a decision by the presiding officer in that party's favor as to all or any part of the matters involved in the proceeding. The moving party shall annex to the motion a separate, short, and concise statenent of the material facts as to which the moving party contends that there is no genuine issue to be heard. Motions may be filed at any time. Any other party may serve an answer supporting cr coposing the motion, with or without affidavits, within twenty (20) days efter service of the motion. The party shall annex to any answer opposing the motion a separate, short, and concise
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statement of the material f' acts as t'o which it is contended there exists a genuine issue to be heard. All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party.
The opposing party may, wi+.nfr ten (10) days after service, respond in writing esented in any statement filed in support of the to new facts and arguments e motion.
No further supporting statements or responses thereto may be entertained. The presiding officer may dismiss summarily or hold in abeyance motions filed shortly before the nearing commences or during the hearing if the other parties or the board would be required to divert substantial
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- resources from the. hearing in' order to respond adequately to the motion and i
F1 thereby extend the proceeding.
I Dated at Rockville, Maryland, this day of 1989.
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For the Nuclear Regulatory Commission.
Samuel J. Chilk, Secretary of the Commission.
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ENCLOSURE 2
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. UNITED STATES M
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NUCLEAR REGULATORY COMMISSION.
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WASHINGTON, D. C. 20555 A,,;
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The Honorable Philip R. Sharp, Chairman y
Subcommittee on. Energy and Power
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Comittee on Energy and Comerce l
United States House of Representatives i
Washington,'D.C. 20515 l
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Dear Mr. Chairman:
l' The NRC has sent to the Office of the Federal Register for publication the enclosed final ~ amendment to' the Commission's rules in 10-CFR Part 2.
The amendment would modify the Comission's Rules of Practice to improve the hearing process.
i Sincerely, William C. Parler j
General Coe.iael
Enclosure:
As stated cc: The Honorable Carlos J. Moorhead i
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