ML20245L277
| ML20245L277 | |
| Person / Time | |
|---|---|
| Issue date: | 08/02/1989 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| References | |
| FRN-51FR24365, RULE-PR-2 NUDOCS 8908220063 | |
| Download: ML20245L277 (69) | |
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10 CFR Part 2 RIN: 3150 - AC22, 3150 - AA05 Rules of Practice for Domestic Licensing Proceedings--
Procedural Changes in the Hearing Process AGENCY:
Huclear Regulatory Commission.
ACTION:
Final rule.
SUMMARY
- The Nuclear Regulatory Commission is amending its Rules of Practice to improve the hearing process with due regard for the rights of the parties.
The amendments require a person seeking to participate as a party in an NRC proceecing to ffle 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 that support the contention anc which, at the time of the filing, the person intends to rely upon in proving the l
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 l
rely to establish such facts or expert opinions.
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.a potential.intervenor must b'e sufficient to show that a genuine dispute exists between.it and the applicant or licensee on an issue of law or fact.
i If the person fails to' satisfy these requirements the presiding officer shall not admit the contention.
Other amendments are made to reduce unnecessary discovery, to describe procedures by which a presiding officer may require parties to file a description of the purpose and nature of questions which 1
they intend to ask witnesses during cross-examination, to expand the time during which motions to dispose of contentions sunparily and without a hearing may be filed, and to limit an intervenor's appeals and filings of proposed findings of fact and conclusions of law to issues which that party actually placed in controversy or sought to place in controversy in the proceeding.
EFFECTIVE DATE:
Insert date 30 days after date of publication in the Federal Register.
FOR FURTHER INFORMATION CONTACT: Stuart A. Treby, Assistant General Counsel Rulemaking and Fuel Cycle Division, Office of the General Counsel, U.S.
Nuclear Regulatory Commi.sion, Washington, D.C.
20555; Telephone (301) 492-1636.
SUPPLEMENTARY INFORMATION.
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3-On July 3,1986, af ter extensive-study, evaluation and review and careful consideration of prior public comments, 1/ 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 for nuclear power plants and inviting public comment (51 FR 24365. July 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 intervenor" filings of proposeo fincings of fact, conclusions of law, and appellate briefs.
In addition to these proposals, the Commission also requested comments on a series of related proposals developed by former Commissioner Asselstine concerning the intervention process. The comment period expireo October 1:, 1986. More than 150 comments, including a few late-filed comments, were received from electric utilities,. electric utility eno 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 2120 L Street, NW., lower level, Washington, DC.
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A detailed account of the background of this rulemaking 1s set out in tha
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preamble of the proposed rule, se_e 51 FR 24365-24366, July 3,1986.
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- 11. : Summary of Comments.
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General; 7
Although. objections were raised to some of.the-specific proposals, the proposed rule received broad. support from electric utilities, their counsel an' various industry' groups. According to these commenters,'the proposed rule:
d would streamline the. hearing process and make it more efficient. States, local governments, public' interest groups, interveners and individuals 1
. generally opposed the proposals on the ground that they would curtail the~
' public's role in the licensing process ano meaningful public participation in
- licensing proceedings woulo be eliminated.
Noting the need for and importance of unbiased factual information. in reaching sound regulatory decisions and.the effectiveness of interveners in identifying ar.d obtaining full 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 Concission's rules of practice should be retained unchanged.
L B.
Comments on Specific Proposals, with Responses.
The sections which follow contain a description of each of the proposed amendments, a summary of the comments receiveo and an flRC response.
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Intervention (10 CFR 2.714) Aamission of Contentions The. proposed amendments to 10 CFR 2.714 would raise the threshold for the admission of contentions to require the proponent of the centention to supply information showing the existence of a genuine dispute with the applicant on-an issue of law or f act. The required showing must include references to the specific portions of'the application which are disputed.
The contention must also be supported by a concise statement of the alleged facts or expert opinion, together with specific sources and documents of which the petitioner is aware, which will be relied on to establish the facts or expert' opinion.
Absent this showing, the contention will not be admitted.
Under the proposed amendments, aomission 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 it 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 amenoments 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 any oral argument that may be held.
Electric utilities, their counsel and industry groups, for the most part, supported this change, while environmental and citizen action groups and state and local governuent representatives opposed the proposed amendnents 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 commenters who
' favored adopting more stringent standards of admissibility stated that the Commission's existing procedures permitted too many insignificant, meritless, hypothetical and time-consuming contentions to be aomitted and that the proposed amendnents 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 commenters, the proposed amendments, if vigorously enforced, could become an important tool in crystallizer.g oisputes at an early stage in the proceecing, thereby significantly improving the efficiency ano quality of the hearing process. The commenters noted that the proposed amendments should curta11 the practice of using discovery procedures to develop contentions and that the proposeo amendments would bring NRC practice more in line with Federal practice under the Admir.istrative Procedure Act.
The proposed amendments wuulo also, in one respect, conform NRC practice more closely to I
that permitteo by the Federal Rules of Civil Procedure.
On this point, one commenter 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 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.
1 Some of the proponents of the proposed amendments expressed the view that the amendments should be further revised.
Several commenters expresseo the view I
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-.that the proposed amendments did not go far enough in that they f611ed to l-includt 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 adoressed by the Commission itself. According to I
these commenters, to permit policy statements which have been formally adopted by the Commission to be. challenged in licensing and regulatory proceedings cevoted to other matters would be inconsistent with current NRC practice (see 10 CFR 2.758) which precludes parties in any adjudicatory proceeding involving initial licensing, except as provided in i 2.758(b), (c) and (d), from challenging any Commission rule or regulation.
Instead, concerns respecting Commission policies should be raised at the time the Commission is actively engaged in developing uno formulating thosa policies in the forum provided by the Cocm.ission for that purpose.
In response, the Commission would note that the use of the terms " law, fact ano policy" was not meant to change in any manner the way Commission regulations or policy statements are dealt with in NRC proceedings.
The terms 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. However, to avoid any ambiguity about the manner in which policy issues are to be dealt with before the NRC, the word " policy" has been deleted from the final version of 62.714
. Several commenters criticized the language used in paragraph (b)(2) of 5 2.714 to describe.the threshold of admissibility on the ground that it was unnecessarily redundant because it included two separate standards of admissibility, 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 commenters opposed, while other commenters favored, inclusion of the " reasonable minds" standard. One commenter noted that the genuine cispute standard is the same standare used to determine standing and that if this stanoard is applied as it has been in the past, adoption of the proposed amencments will hu e little practical effect. The Commission has-conclucto that describing the threshold for admissibility by two different phrases is unnecessary ar.d could create confusion.
Therefore the " prompts reasonable minds to inquire further" language has been deleted from the final rule.
Commenters opposing the proposed amendments objected on the grounds that the proposed anenoments were unnecessary, contrary to due process, unculy buroensome, unfair and in violation of the provisions of section 189a of the Atomic Energy Act of 1954, as amended. According to these commenters, the proposed standard for the acmission of contentions is so restrictive that it i
would be virtually impossible for persons seeking to participate in an NRC adjudicatory proceeding to succeed in having their contentions admitted with I
i the result that significant safety issues might not be fully explored or carefully reviewed, instead of sharpening the issues in dispute, the proposeo I
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9 amendments-would simply eliminate certain issues from further consideration with the result that'the problems presented might never be satisfactorily resolved. This could be highly detrimental to the public health and safety.
Asserting that.the proposed standard for admissibility of contentions 'is far more stringent than that applied by the federal courts, the commenters argued that, if promulgated, the standard would have the effect of requiring persons seeking to participate in an NRC proceeding to prepare and prove their complete evidentiary case before any determination is made on their right to be a party to the proceeding.
Under the proposed procedures, several corraenters argued, petitioners would not only be required to proouce the proof of their allegeo facts in order te be aamitted to the proof-gathering and fact-fir,oing process; licensing boards would also be permittee to prejudge the petitioner's evidence before the petitioner has granted standing to participate in the proceeoing.
Several commenters took strong exception to the provisien in i 2.714(d)(2)(ii) which would permit presiding officers to bar an intervenor from participating in a proceeding on the basis of a preliminary determination that "it appears 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 they are entitled to participate in an adjudicatory proceeding and take advantage of the mechanisms normally available to parties to such a proceeding to obtain relevant cocuments and information is patently unfair ano constitutes a denial 1
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' of.due process.
In addition, they argue, contrary to the intent of the present regulatory scheme, one immediate effect of the proposed amendments 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.
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 189a of the Atomic Energy Act of 1954, as amended, which states, in pertinent part:
i "In any proceeding under this Act, for the granting, suspending, revoking, or amending of any license or construction permit, or application to transfer control, and in any proceeding for the issuance or modification of rules and regulations dealing with the activities of licensees, and in any proceeding for the payment of compensation, an award, 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 proceeding...."
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I-The commenters also opposeo-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 1'
j reaching a aecision 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 commenters also took exception to the cases cited in the preamble of the proposed rule in support of this proposal.
Finally, scrae commenters objected to the proposed amendments on the grounds that they ore unnecessary. According to these commenters, presiding officers have adequate authority under the Commission's present rules of practice to bar contentions which ere frivolous and without merit.
In general, when an effort has been made to apply the existing requirements in a disciplined manner, presiding otticers have experienced little difficulty in determining whether a particular contention is meritorious and should be admitted as an issue in the proceeoing. The commenters are firmly of the view that additional amendments establishing more stringent standards for the admissicn of contentions are unnecessary.
The Connission 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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_ 12 Under these new rules an intervenor will have 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 ano 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 ano sources, the new rule will also require interveners to submit with their list of contentions sufficient information (which may include the known significant facts cescribed above) to show that a genuine dispute exists between the petitioner and the applicant or the licensee on a material issue of law or fact. This will require the intervenor to read the pertinent portions of the license application, incluoing the Safety Analysis Eeoort and the Environmental Report, 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.
The Commission does not agree that this rule contravenes section 189a of the Atomic Energy Act of 1954, as amended. A member of the public has no absolute
- or unconditional right to intervene in a nuclear power. plant licensing proceeding.under the Atomic Energy Act. BPI v. Atomic Energy Comission, 502 F.2d 424 (D.C. Cir.1974).
Section 189a of the Act which provides for intervention is subject to the Comission's rulemaking power under section 161p and, thus, to reasonable procedural requirements designed to further the purposes of the Act.
BPI v. Atomic Energy Comission, supra, 502 F.2d at 427, 428; see also American Trucking Ass'ns, Inc. v. United States, 627 F.2d 1313, 1320-23 (D.C. Cir. 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 member of the public shall include a statement of the facts supporting each contentiori together with references to the sources and documents on which the intervenor relies to establish those facts. Finally, the Administrative Frocedure Act creates no independent right to intervene in nuclear licensing proceedings. See Easton Utilities Commission v. Atomic Energy Cnmission, 424 F.2d 847, 852 (D.C. Cir.1970)(en banc); c1 National Coal Operators' Assn. v. Kleppe, 423 U.S. 388, 398-99, 46 l
l L. Ed. 2d 580, 96 S. Ct. 809 (1976).
Nor does the Comission believe that this requirement represents that substantial a departure from existing practice. Under the Comission's existing requirements, as explained by the Atomic Safety and Licensing Appeal Board, "[A]n intervention petitioner has an ironclad obligation to examine the publicly available documentary material pertaining to the facility in question with sufficient care to enable the petitioner to uncover any information that 1
. could serve as the foundation for a specific contention.
Neither Section 189a of the Atomic Energy Act nor Section 2.714 of the Rules of Practice permits the filing of a vague, unparticularized contention, followed by an endeavor to flesh it out through discovery against the applicant or Staff."
Duke Power Co. (Catawba Nuclear Station, Units I and 2), ALAB-687,16 NRC 460, 468 (1982); vacated in part on other grounds, CLI-83-19, 17 NRC 1041 (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 provic'e 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 Ltilities Electric Cc. (Comanche Peak Steam Electric Station, Unit 1), ALAB-868, 25 NRC 912, 930 (1987).
The revised rule does, however, overturn the holdings of Mississippi Power and Light Co.
(Grand Gulf Nuclear Station, Units 1 and 2), ALAb-130, 6 AEC 423, 425-26 (1973) and Houston Lighting and Power Co.
(Allens Creek Nuclear Generating Station, Unit 1), ALAB-LEO, 11 NRC 542, 546-49 (1980). The Appeal Board found in those cases that the current language of 10 CFR 62.714 dces not require a petitioner to describe facts which would be offered in support of a proposed contention.
The new rule will require that a petitioner incluce in its submission some alleged fact or facts in support of its position sufficient to indicate that a genuine issue of material fact or law exists.
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We reject the arguments that the new rule is unfair and a denial of due process because it requires interveners to allege facts in support of its contention before the intervenor is entitled to discovery. Several months before contentions are filed, the applicant will have filed an application with the Commission, accompanied by multi-volume safety and environmental reports. These focuments are available for public inspection and copying in -
the Commission's headquarters and local public document rooms. Admitted interveners will continue to be able to use discovery to develop the facts necessary to support its case.
However, the rule will require that before a contention is admitted the intervenor have some factual basis for its position ano 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 facts to support its position and where the intervenor contemplates using 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 Eneroy Commission, 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 exists between it and the applicant on a material issue.
The Commission agrees with commenters that the new rule may require persons seeking intervention to do more work at an earlier stage of the proceeding than under the current regulations.
Huwever, the Connission disagrees with the conclusion reached by some conmenters that the rule shifts the burden of
.. proof to potential interveners or should be rejected because of the buroen placed on potential interveners. The revised rule does not shift the ultimate i
1 burden of persuasion on the question of whether the permit or license should be issued;'it rests with the applicant. Rather, the rule only details what isL expected of an intervenor as part of its burden of coming forward with information in support of a proposed contention. Cf. Consumers Power Co.
(Midland Plant, Units 1 and 2) ALAB-123, 6 AEC 331, 345 (1973). The Ccmmission believes it to be a reasonable requirement that before a person or organization is acmitted to the proceeding it read the portions of the application (including the applicant's safety and environmental reports) that address the issues that are of concern to it and demonstrate that a dispute exists between it and the applicant on a material issue of fact or law.
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 contention by citing pertinent portiens and explaining why they have a disagreement with it.
The Commission also disagrees with the comments that 5 2.714(b)(2)(iii) should permit the petitioner to show that it has a dispute with the Commission 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 steff has not performea an adequate analysis.
With the exception of NEPA issues, the sole focus of the hearing is on whether the application satisfies NRC I
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regulatory requirements, rather'than the adequacy of the NRC staff performance. See, e.g., Pacific Gas and Electric Co. (Diablo Canyon Nuclear
. Power Plant, Units 1 and 2),-ALAB-728, 17 NRC 777, 807, review declined, CLI-83-32,.18 NRC 1309 (1983).2/ For this reason,.and because the license application should include sufficient information to form a basis for contentions, we reject commenters' suggestions that interveners not be requireo to set forth pertinent facts until the staff has published its FES and SER.
The new rule provides that in ruling on the admissibility of a contention, the presiding officer shall not admit a contention to the proceeding if the intervenor fails to set forth the contention with reasonable specificity or establish a basis for the contention.
In aodition, the contention will be cismissed it the intervenor sets forth no facts or expert opinion on which it intenos to rely to prove its contention, or if the contention f ails to establish that a genuine dispute exists between the intervenor end the l
applicant (or, possibly, the NRC staff on a NEPA issue).
Contrary to the assertions of some commenters, the use of this standard for the admission of contentions has been supported by the Federal courts in numerous instances.
Vermont Yankee Nuclear Power Corp. v. NRC, 435 U.S. 519 (1978);
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The Commission recognizes that in some cases the applicant's and the NRC staff's position on a particular issue will be similar.
Although under these rules the contentions must be framed to disagree with the applicant's position, en intervenor's evidentiary in the proceedinp.
For each issue appealed, the precise portion of the record reliec upon in support of the essertion of error must also be provided.
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h Independent' Bankers Ass'n v. Board 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. 19B0). The court in the latter case emphasized that "a protestant does not become 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 cepth' is' appropriate." 627 F.2d at 251.
The Commission's rule is consistent with these decisions.
Several commenters were concerned that the standard " dispute on a genuine issue of material law or fact" is the same one to be useo by the presiding officer in ruling on motions for summary judgment filed under 10 CFR 2.749.
The Commission expects that at the contention filing stage the factual support necessary to show that a genuine cispute exists need not be in affidavit or formal evidentiary form and need nnt be of the quality necessary to withstand a summary disposition motion. At the summary disposition stage the parties will likely have completed discovery ano essentially will have developed the evidentiary support for their positions on a contention. Accordingly, there is much less likelihood that substantial new information will be developed by the parties before the hearing. Therefore, the quality of the evidentiary support provided in affidavits at the summary disposition stage is expected to be of a higher level than at the contention filing stage.
The proposed rule also provided in section 2.714(d)(2) that the presiding officer would refuse to admit a centention where:
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(ii) It appears unlikely.that petitioner.can prove a set.cf facts in!
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support of its contention; or-si
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(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 L
where the plaintiff would be entitled to no relief under any set of. facts which could be proved in support of his claim.
A number of commenters cisagreed with the language of proposed i
$2.714(d)(2)(ii); specifically, the phrase " appears unlikely", because it suggests that the presioing officer is to prejudge the merits of a contention l
before an intervenor has an opportunity to present a full case.
The Commission recognizes the potential ambiguity of the proposto phrasing and the i
paragraph has been deleted.
Issues which arise under the National Environmental Policy Act (NEPA) are specifically addressed in the new rule.
NEPA requires the NRC to analyze the environmental inipact of its proposed major actions significantly affecting the quality of the environment.
In the licensing context, the NRC fulfills this cbligation by issuance of a draft environmental impact statement (DES) anc a final environmental impact statement (FES).
Any license or permit application
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subject to NEPA's impact statement requirement must contain a complete-o Environmental' Report.(ER) which is essentially the applicant's proposal for the DES.
(. See_10 CFR 51.20 and 51.40). As described in i 2.714(b)(2)(111),
an intervenor will be' required to demonstrate that a gen"ia* dispute exists
'between it and 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 f 2.714 relating to environmental matters, claiming, among other things, that those provisions appear to authorize petitioners to submit late-filec contentions based on the NRC staff's environmental review documents. One commenter recommenced that the discussion of NEPA issues in i 2.714(b)(2)(iii) be deleted as unnecessary, noting the availability of a right, based on past precedents, to amend or supplement environmental documents to reflect new information.
The ccc.menters oisagreed on whether contentions relating to environmental matters should focus on environtiental reports submitted by tne applicant or environmental documents prepared by the hRC staff.
The Commission has reexamined those portions of 9 2.714(b)(2)(111) which relate to the filing of environmental contentions in the light of these comments and has concluded that the text of the rule as presently drafted is clear and that no further revision is needed.
The rule makes 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 cr FES may well take a different position than the applicant.
10 CFR 2.714(b)(2)(iii) explicitly recocnizes for environmental matters existing
. 1 precedent regarding the right to amend or supplement contentions based on'new i
information. The _ Commission wishes to emphasize that these amenoments to 6 2.714(b)(2)(111) are not intended to alter the standards in 6 2.714(a) of l
l its rules of practice as interpreted by NRC caselaw, e.g., Duke power Co.,
(Catawba Nuclear Station, Units 1 and'2), CLI-83-19,17 NRC 1041 (1983),
i respecting late-filed contentions nor are they intended to exempt l'
environmental matters as a class from the. application of those standards.
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One commenter objected to the inclusion of the woro " concise" in paragraph (b)(2)(ii) of 6 2.714 on the grouno that it "could be misconstrued as requiring brevity." The correnter added that a word or phrase which connotes sufficient detail to inform the reader of the various tactual or other bases l
for the contention should be used insteac.
The Consission disagrees with the view of the commenter that retention of the word " concise" in paragraph (b)(2)(11) of 6 2.714 could be misleading.
In'the opinion of the Consission, paragraph (b)(2)(ii), when read in context with paragraphs (b)(2)(i) and (b)(2)(iii) cf 6 2.714, clearly identifies the kind of oEtailed information which a petitioner must provide to enable the Commission or the presicing officer to determine whether a contention should be admitted in a particular adjudicatory proceeding.
Several commenters suggested that paragraph (b)(2)(iii) of $2.714 should recuire that the issue being raiseo 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 concurs that that was the intention of the requirement, as is demonstrated by the language of paragraph (d)(2)(i) of 52.714, which provided for " determining whether a genuine dispute exists on a material issue" of law or fact. Section 2.714(b)(2)(iii) has been revised to include the word " material".
One cer.nenter expressed the view that there was very little likelihood that contentions involving purely legal issues would be submitted (in most cases contentions raise mixed questions of 16w and fact) and therefore paragraph (d)(2)(iv) of 6 2.714 is unnecessary and should be deleted. Another commenter disagreed with the form of 6 2.714(d)(2)(iv). As written, it conflicts with the proposed definition of a centention in 10 CFR 2.714(b)(2) as a statement of " law, f act or policy". While not opposed to the intent of the proposal, the commenter 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 determir.es that any of the admitted contentions constitute pure issues of i
law, those contentions must be oecided on the basis of briefs or oral ergument according to a schedule determined by the Commission or the presiding officer.
l The intent of the proposed rule in i 2.714(d)(2)(iv) was that purely legal contentions, which occur rarely, may be acmitted as issues in the proceeding.
However, they will not be a part of an evidentiary hearing, but rather, will
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.be handled on the basis of briefs and oral arguments. A new paragraph (e) has been edded to $2.714 to clarify this intention..
The Commission is also making a clarifying change to 10 CFR 92.714(c). TMt 4
paragraph provides that any party to a proceeding may file -.nswer to a petition to intervene within certain time perioos.
Prior to 1978, a person petitioning to intervene in an NRC proceeding was requireo to state not only how his or her interest might be affecteo by the results of the proceeding, but also the basis for his or her contentions with regard to each aspect on which he or she desired to intervene.
Under that scheme for petitions for leave to intervene, it has clear that a response filed pursuant to 10 CFR 62.714(c) could be a response to the contentions ano the bases for any contentions proposed.
In 1978, the Rules of Practice were amended to provide that a petitioner coulo file his or her contentions sepLrately in a supplement to the originel petition to intervene, not later than fifteen days prior to the special prehearing conference held pursuant to 10 CFR 92.751a or the first prf. hearing conference. Section 2.714(c) was not 6 mended to make it clear that answers to these supplemental petitions containing contentions ano their bases were permitted as well as to the original petition to intervene.
However, the practice before the Commission since 1978 has been that answers to supplements to petitions to intervene as well as to an initial petition to intervene are permissible within the timeframe established in $2.714(c).
Language is being added to %2.714(c) to make it clear that answers to both initial petitions and any supplements thereto are permissible.
- 24 Former Commissioner Asselstine also suggested in the proposed rcle additional changes-in the Commission's rules on intervention and public participation in the licensing process.
Changes to 10 CFR 2.104, 2.714, 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 stancing 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 e 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 tc understand and dealt with the fact that although the hearing clock begins when en application is cocketed, much of the documentation of interest to interveners may not be ready for some time. Some commenters ftlt the proposals would encourage inforr.al discussion and resolution of disputes ano l
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 tearing process.
The use of provisional admission and the notice of receipt proposals woulo only add additional steps to the hearing process without increasing its effectiveness. They felt presiding officers already have the
t
. : authbrity to reject petitions, for intervention prior to submission 'of contentions and do so. These proposals woula substantially increase the number of parties and contentions without any countervailing benefit. Other comenters, 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 considereo the coments 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 accress the same aspects of the hearing process, e.o. the filing of contentions, as the proposed rule chtnges made by the Comission, and, the Comission has chosen j
_to aoopt those rules essentially as proposed.
2.
Subcoenas (10 CFR 2.720) Discovery Against hRC Staff The proposed amencments to 30 CFE 2.720(h)(2)(ii) would codify two existing grounds used by HRC staif to object to responding to interrogatories 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 limiteo staff time and resources.
The first ground for objecting reflects exist 1ng NRC practice in which a response stating that the requested information is available in either NRC public document rooms or in public compilations and providing sufficient information to enable a party to locate the material requested is considered acequate.
The second ground would limit
- s the scope of an interrogatory by barring the requstor fro.
sking 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 cubmit interrogatories seeking to elicit f actual information reasonably related to tN 6RC staff's position in the proceeding, incluoing data used, assumptions %de and analyses performed by the NRC staff.
The commenters whc mpported the proposed amenoments did so because they believed it would be advantageous if certain established and well recognized precedents consonly used in NRC adjuoicetory proceedings were codified in NRC's Rules of Practice.
According to the comenters, the perceived advantages of codification included conservation of increasingly limited NRC staff resources, increased use of accepted legal procedures and reduction of delays in the application review process. Dre commenter stated that these procedures should not be limited to the hRC staff but that they should be equally available to all parties to any NRC adjudicatory proceeding. Several commenters who opposed the rule, also made this comment.
One commenter supported codification in principle but poin Md out that the proposed amendments as presently drafted, ao net accurately reflect existing precedent. For example, the proposed amendments convert a statement indicating the availability of a cocument, long recognizad as an acceptable
1 27 p
response, into an acceptable rationale for not responding.
The commenter also L
took issue with tne. prohibition against the submittal of questions requesting the NP.C 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 would not require the staff to perform additional research; the staff need only respond by providing an explanation.
l The commenters who opposed placing accitional restrict 1ons'on interrogatories to the NEC Ataf f old so for a variety of reasons. Considered unfair, unnecessary and unwise as a n.atter of policy, the proposed amendments were criticized because they woulo defeat the basic purpose of discovery--to obtain' relevant information on issues raised in and pivotal to the proceeding, thereby prevcating surprise at trial.
A number of consenters noted that the staff is a major if not crucial party l
because it is the party with the technical rescurces and expertise.
Interveners need full opportunity to understano 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 1
burden on interveners to locate information bearing on the staff's position.
This woul6 increase intervention costs. The current rules provide ample protection for the staff.
If anything, discovery against the staff should be increased rather than decreased.
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A number of commenters opposed to the rule change expressed concerns similar r
to those described.-above made by supporters of the rule. They were concerneo that the proposed-rule wou)o improperly shield _the staff from its obligation to explain and justify its' position. The stated rationale for the rule--caselaw on-the. issue of requiring extensive independent research--does not support the proposal in the view of one commenter. The staff may have examined alternative assumptions, data and analyses and chosen not to rely on them.
Interrogatories asking the staff to provide ar. explanation for why one particular source of data or analysis was chosen is fair discovery.
Sestral 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 oo not support the itaff's final' position could be concealed.
A number of commenters were also critical of the assertion that this proposal
.was an attempt to conserve staff resources.
Several asserteo that the eristing 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 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 1.
E
way to deal with scarce staff resources. The Commission shoulo either seek 4
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.
1 Commenters representing applicants asserted that discovery against them has many of the same objectionable qualities--asking for documents already on the cocket or requesting the applicant to perform new analyses.
These commenters saw no justification for codifying the hRC caselaw solely for the benefit of the staff.
A number of commenters were also critical of the second element of the proposed rule which would cooify the existing NRC practice that an adequat.e discovery response is to state that the requested information is available in public dccument rooms or other public compilations, Several commenters noted' that this proposal does more than just codify existing practice.
If that were all it did, the basis for it is weak, because citing a rule rather than caselaw is not a meaningful reouction in staff workload.
The proposal converts a method 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 rounc of pleadings to determinei he staff's duty to t
, respond.
Several commenters objected to the proposal because of the. impact they felt it could have on specific types of proceedings. One commenter objected to limitations on interrogatories to the staff in enforcement proceedings regarding alternative assumptions and analyses not relied on. The concern was-that if the staft 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.
The Consission has decided to adopt the proposed changes to its oiscovery procedures; however, the changes will apply to all parties to NRC proceedings, not just to the NRC staff.
Because of this expanded applicability of the changes, they are being incorporated into 10 CFR 6 2.740, the ger.eral provisions governing discovery rather than into i 2.720 as proposed.
Commission caselaw has long established that while in response to a discovery 1
request a party must reveal information within its possession and control, L
which may entail some investigation to determine what information is in the l
party's possession, the party is not required to engage in independent research. Pennsylvania Power and Light Co. (Susquehanna Steam Electric Station, Units 1 and 2, ALAB-613, 12 NRC 317, 334 (1980).
The breadth of
x
- permissible interrogatories is limited to those which adciress factual information relateo to a party's position in the proceeding, such as data used, assumptions made, and analyses performed by the party.
A party must provide the basis for its position on an issue in the proceeding, but the Commission does not believe that a party should be called upon through the discovery process to explain why it did not use other data or be required to perform acc1tional studies.
Interrq<. tories which elicit what data the party has relled on and why are acceptable.
Interrogatories which ask a party.
to describe reasons why other data were not relied upon in developing a party's position will not be permissible. So long as prior to the trial, parties have an opportunity to learn what another party has done or what information that other party has to provide the basis for its position, the party seeking discovery will be able to show in the hearing what, in its vieri, the other party should have done or why its position is incorrect.
By eliminating burdensome interrogatories the Commission will conserve not only its own stafi resources, but provide a fair hearing process for all parties.
These-principles are particularly important when applied to the NRC 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 same time, the staff should be able to produce the factual information requested with minimal disruption of its limiteo resources.
Staff documents relevert to a proceeding are publicly available as a matter of course unless there is a 1
1 compelling justification for their nondisclosure.
These publicly available a
documents reasonably disclose the basis for the staff's position. Thus formal l
discovery against the staff may legitimately be narrowed to minimize staff resources involved in time consuming discovery procedures.
The secono proposed change to discovery procedures does not, despite suggestion by some commenters to the contrary, add any new bases for objecting to interrogatories. The change merely clarifies current practice that when a document is reasonably available from another source, such as the Commission's Public Document Room or local public Document Room, the information need not be proviceo in response to the interrogatory.
A sufficient answer to such an interrogatory is the location, title and a page reference to the relevant cocument.
3.
Evidence (10 CFR 2.743) Cross-Examination The proposed amendment to 10 CFR 2.743 would require a party to a proceeding to obtain the permission of the presiding officer in oroer to conduct cross-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 requireo 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
3 4
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would be kept confidential until the presiding officer issued his or her
- decision, j
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 would add structure to cross-examination ana cecrease repetitive and cumulatise ouestions.
Some noted that cross-examination plans are essentially alreacy stancard practice, while others indicated their belief that the.
-proposed changes woulo improve the Board's ability to control proceedings.
One'commenter, in supporting the proposal, notec that the NRC was with19 its autnority 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 Frocedure Act guarantees an absolute right to cross-examine witnesses. Seacoast Anti-pollution League v. Costle, 572 F.2d 872, 880 (1st Cir. 1978); cert. denied, 439 U.S. 824 (1978).
Several of these same commenters believed the Commission's proposed changes did not go far enough.
One asserted that the proposal would not change the hearing process but would only increase procedural requirements that will do 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 be 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 i
i
' 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.
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 and substantial issue of fact anc resoluticn 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.
Commenters opposed to the proposed rule had concerns both with the proposal as a whole and with specific aspects of it.
Several asserteo that cross-examination is a fundamental right, and is especially important in NRC
)
proceedings which deal with matters of public health and safety, in their view, the public interest in a full look at safety matters outweighs an interest in reducing a cluttered record.
The proposal seeks to gain efficiency at the expense of quality decision-making end the openness of the To restrict cross-examination is to negate the purpose of process.
adjuoitatory proceedings--to adjudicate disputed facts. The purpose of cross-examination is to explore credibility, inconsistency ano bias.
Ef tective cross-examination requires an element of surprise and the ability to l
shift airection. One commenter asserted that the stated reliance on caselaw 1
f l
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... i is misplaced. While the caselaw does support requiring partfes to demonstrate the need for cross-examination, it has never suggested that barriers may be used to actively preclude the public litigant from participating.
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 prepared by applicant and staff who have the resources to file a large amount of direct testimony.
Interveners are more likely to make their case en 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 2.718 and 2.757, are more than sufficient to control cross-examination. The conduct of a' hearing and the scope and amount of cross-examination are traditionally within the presioing. officer's discretion.
One commenter noted that prefiled cross-examination plans are essentially already standard practit.e. Another 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 far appellate litigation.
The remedy is for the busrd 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
'f n,
L and unnecessary cross examination. Parties should be limited to litioating only their own contentions 6nd only. their' stated interest in the contention.
If parties have a common interest, their contentions may be jointly admitted and. lead responsibility assigned for litigating the contention, including cross-examination.
Rather than develop more paperwork, the. Commission should simply. reiterate thdt hearings be conducted in strict accordance with the NRC's evidentiary practice.
One commenter questioned whether a Board in rejetting a cross-examination plan would not be prejudging an issue because the presiding officer might not understand the party's overall litigation strategy. Another questioneo whether NRC can legally require a party to produce its workproduct to the Board and ultimately to otner parties. On the other side, one commenter expressed concern that the filing of plans in conticence with the Board could unfairly influence the Board because parties tsuld expound their theory of the case under the guise of describing objectives to be achieveo during cross-examination.
One commenter argued that the proposeo rule change violates the requirements of the National Environmental 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 excludeo from the rule.
I i
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1
-N-Several. objections to specific elements of the proposal were also noted. Many.
felt fifteen days to. review prefileo 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-questions. Most felt a statement of objectives and a proposed'line~of questions was sufficient for a Board to determine relevancy.
If answers are required, then a party is in effect limited to asking questions for which he or she already knows the answers. A requirement for prefiled questions and answers would unfairly limit the scope of cross-examination because it would notillow questioners to follow up on the unexpecteo. Cross-examination is:
-dynamic and litigants need the flexit111ty to try different tacks. The logical extension;of the proposed requirement woulo be' plans for redirect ano recross-examination which would further delay a proceecing.
Several comenters also noteo their belief that this requirement could have a negative impact on oiscovery. They fearec it coulo encourage a lack of full ano prompt.
response to discovery by applicants in order to make it difficult for interveners to file adequate plans ano, consequently, to concuct 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 oevelop and evaluate the objectives they expect their cross-examination to achieve and by giving the presiding officer the necessary information to effectively marage the proceecing.
The Commission disagrees with those commtnters who believe that the use of cross-examination plans will sacrifice lE______
p p
.e.
l
-.the' quality or openness of its decisionmaking' for the sake of efficiency.
Cross-exam, nation plans have been used effectively in a number of Commission:
proceedings. We do not believe it is unduly burdensome to require a party to
,a: proceeding to examine prefiled testimony sufficiently. to be able to articulate to the' presiding officer the. nature of the questions the party believes are necessary to' illuminate the issues of concern'to it. However, because the usefulness of this procedure is highly dependent upon the circumstances of a particular proceeding, the final rule has been ch6nged to give the' Presiding Officer discretion to require submittal of the piens.
The regulation makes clear that parties are entitled to conduct such cross-examination, in accordance with a plan if required by ti.e Presiding Officer, as is necessary for full ano true disclosure of the facts. This is the stancard set furth in section 7(c) of the Administrative Procedure Act, 5 U.S.C. 556(d) and existing h 2.743(a). That provision has never been understocc to confer unfettered rights to cross-examine witnesses. See Seacoast Anti-pollution League v. Costle, 572 F.2d 872 (1st Cir. 1978); cert.
denied, 439 U.S. 824 (1976); Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-244, 8 AEC 857, 867 n. 16 (1974),
reconsideration denied, ALAB-252, 8 AEC 1175, aff'd., CLI-75-1, 1 NRC 1
-(1975). The standard in the rule will assure that issues are appropriately examined ano it is also consistent with the Commission's obligations under NEPA to consider the environmental impacts of a decision.
i
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.1 '
We do not believe, as suggested by some commenters, that a more restrictive test for cross-examination, e.g.'where genuine and substantive issues will be substantially assisted by cross-examination, is appropriate.
The option of.
requiring use of cross-examination plans together with the discretion grant ed to the presicing officer elsewhere in the regulations to' limit unnecessary, argumentative or duplicative cross-examinar.ior, provide adequate measures to control the conduct of cross-examination.
This regulation will not inhibit a party's ability to use the element of surprise or shif t direction as the cross-examination progresses. 'When a plan is requireo, 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 devcloped ano oescribed, there will be no impediment to shifting the cirection of questioning in response to the answers received because the presiding otticer will be aware of the ultimate objective of the questioner or'be able to ascertain through brief queries of the cross-examiner why the change in direction is appropriate.
It is also noted that the plans are required to be kept confidential by the presiding officer.
The Commission ooes agree with a number of commenters that a requirement to include the postulateo 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 questions would achieve the stated objective.
We have concluded, however, that the statement of objectives can provide sufficient notice to the presiding officer of the party's intentions and the final rule deletes the requiren:ent to 1Lclude in the plan expectec responses to proposed questions.
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Several.commenters were also concerned thet 15 cays was insufficient time to examine testimony and prepare cross-examination plans. Deleting the requirement to include postulated answers should eliminate much of the difficulty which commenters identified for preparation of the plans.
1 Therefore, we are retaining the 15 day prefiling requirement.
- However, language has been added to 12.743(b)(2) to indicate that the schedule for filing cross-examination plans is to be established by the Presiding Officer.
This will assurt that the presiding officer will have sufficient time af ter filing of testimony but before the hearing to review the plans and make any necessary rulirgs. It will also permit the Presiding Officer to accomodate any unique circumstances of a particular proceeding.
Several commenters suggesteo 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 cross-exan,1natico, and that it should limit the issues on which ar. intervenor may cross-examine and assign lead responsibility to a party when several have -
r4ised the same issues. The egency's rules currently authorize a presiding officer to consolidate parties and limit or consolidate cross-examination.
10 CFR 2.715a, 2.718 and 2.757. The Commission believes it is desirable to 4
retain the presiding officer's flexibility to decide whether such consolidation is appropriate ano therefore, has not limited the presiding officer's discretion in this regard.
n +-
One commenter.notea that civil pena.ity and ' enforcement proceedings should be excluded from these requirements.. As 'draf ted, proposed paragraph (b)(3) of 9 2.743 provided that paragraphs (b)(1) and (2) of.the section do not apply to
- proceedings unoer 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 provice 6 similar exemption concerning. cross-examination plans. The Commission agrees that civil penalty proceedings as an additional type of enforcement proceeding should be includeo within these exemptions. The final rule has been revised to clarify the intended exemptions and to include civil pe-nalty proceedings within the exemptions.
Several changes of.a citrifying nature have been made to the rule as proposed.
10 CFR 62.743(b)(2)(iii) has been n.odified to indicate that the presicing officer is to keep the cross-examination plans in confidence until the initial decision on tne n.atter being litigateo has been issued. The language describing how the plans are to become part of the official record has also been clarified.
4.
Authority of Presidino Officcr to Dispose of Certain Issues on the Pleadings (10 CFR 2.749) Sunn.ary Disposition The proposed amendment to i 2.749(a) would permit motions for summary disposition to be filed at any time during the proceeding, including during the hearing.
Current rules Drovide that summary disposition motions shall be
l-filed within such time as may be fixed by the presiding officer and also provices tha't the presiding officer may dismiss motions filed shortly before the hearing commences if responding to or ruling on the motion would divert substantial resources from the hearing. The proposed change is intenced to give parties maximum 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 fact remains in dispute.
l Those comenters who favored the proposed change felt that it would help simplify and rationalize the het, ring process by preventing unnecessary litigation.
Resolution of issues would be permitted at any point where it became apperent further hearing is unnecessary.
Thus, the proposal could expecite elimination of frivolous contentions. Another commenter pointed out that i 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 clarifieo to provide that during a hearing, where cross-examination has not created a genuine dispute of f act and the intervenor 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.
Commenters opposing the proposed change generally felt that it would not increase the effectiveness of the hearing process, but rather could result in
- 43 l-1 chaos and enormous inefficiencies curing the hearing process.
Several comenters 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 rely on volunteers. Several indicated that time was needed before trial to prepare testimony and review that of others.
If summary judgment motions coulo be fileo anytime, they coulo civert resources away from trial preparation.
In eddition, several expressed concern that motions could be filed before discovery was completed anc before opponents of the motion coulc have obtained information to respond to the motion. This could result in legitimate safety issues being lest and never litigated.
One commenter noted that this proposed change constitutes a departure from Federal practice. The purpose of summary iudgment is to eliminate issues from the evidentiary hearing; therefore, summary disposition niotions are appropriately filed before a hearing begins.
Once the hearing has storted, use of summary juogment motiors 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 presiding officer permits.
If the rule is changed, however, the commenter argued that the last sentence of the current 10 CFR 2.749(a) should be retained.
It provides that the Board may sunnerily cismiss summary disposition motions if they are filed shortly before or during the hearing and would result in a substantial diversion of resources.
The commenter expressed
l lT 44 concern that without this sentence the presiding officer's authority to control the hearing process would be diminished.
The Board should be able to
' dismiss or at least hold in abeyance motions filed during the hearing that l
have the potential to disrupt the hearing.
I Sumary disposition is a significant procedural tool to eliminate unnecessary hearing time spent on testimony and cross-examination where no material issues j
of fact remain in oispute. The Comission has evalcated the comments on sumary disposition and continues to believe that the advantages for streen. lining the her. ring prccess by explicitly permitting sumary disposition motions to be filed at any time during the proceeding outweigh the potential disaoyantages for the process. The Commission's regulations in 10 CFP.
2.749(c) provide safeguards against potential abuses of the summary disposition procedures. A party who is unable to respono to such a motion because dist.overy is incomplete may state his or her reasons in a response to the motion and the presiding officer may refuse to grant sumary disposition or take other appropriate action.
The Commission believes that this provision provides sufficient protection in those instances where a party opposing a l
motion for summary disposition is unable to respond.
However, the Commission recognizes the validity of the concern expressed by several commenters that summary disposition motions filed close to the start of or during a hearing have the potential for prolonging the hearing.
Therefore, a sentence has been i
added to 10 CFR 2.749(a) to give the presiding officer the discretion to dismiss or hold in abeyance sumary disposition totions which could divert 4
a g
4 45 -
substantial resources from the hecring ano thereby prolong the hearing process.
5.
Proposed Findings and Conclusions (10 CFR 2.754) an'd Appeals to the Corr.ission From Initial Decisions (10 CFR 2.762) Limitations The'peoposed amendment to 10 CFR 2.754(c) woulo 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 to place in controversy in the proceedir9 The proposed amendn.ent to 10 CFR 2.762(d) woulo similarly limit the issues which an intervenor could raise in an appellate brief. Under current practice, a party may file proposed findings and conclusions of law on.
any issue in the proceeding and ray also appeal on all issues in the proceeding. The only limitation is that a party must have a discernible j
interest ir. the outcome of the particular issue being considered. The purpose l.
of the proposed change is to ensure that presiding officers and agency L
i appellate tribunals will bE able to focus on oisputeo issues in a proceeding as presented and argued by parties with a primary interest in the issue.
The
' change woulo 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 proof to demonstrate that the action should be taken and thus shoulo be f ree to submit findings on all issues which coulo affect the Conmission's cecision to grant a license or to take an appeal
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g fronian'aoverse decision. The NRC staff has an overall interest in the l
proceeding to assure that the public health and safety and environmental values are protected.
Commenters supporting the change agreed that it would improve th'e hearing
. process and would contribute to the overall effort to streamline ano make the hearing process more effic.ient.
Several indicated they felt this change had considerable merit and would ensure that filings are submitted by parties who have a real ccncern and interest in resolution of issues. One supporter of the proposal suggested that the currer.t policy which permits appeals by a
. party on any issue whether they have litigated it or not is inconsistent with the basic teret of hearings to resolve disputes between specific parties.
Recundant' filings are unnecessary and generally not helpfal.
One consaenter suggested that the Consission go further and preclude an intervenor from pursuing issues in wnich it has no cognizable interest.
If this were done, there would be no need to place limits on cross-examination or tilings. Another suggested that the rule shoulo also provide that an intervenor who f ails to file proposed findings on an issue may hot 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 an asserted misperception on the part of the NRC of the role of interveners ir:
NRC proceedings. Several assertea that the proposal was a cenial of cue
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process and one crwenter stated that the Administrative Procedure Act entitles all parties to a hearing to file proposed findings of fact and conclusions of law. 5 USC 557(c).
Several argued that there was no logical
. explanation given for discriminating against interveners.
They called attention to the fact that in its proposed rule the Commission acknowledged
' that interveners have broad, generalized interests in protecting.the health ano ' safety. This' interest is akin to the same kind of interest which the
. Commission found to be justification f or preserving the right of the NRC staff to file proposeo findings and conclusions of law. One commenter asserted that the process of gaining admission as a party shoulo be sufficient to dismiss any allegations of a lack of a discernible interest in the outcome of issues raised in the proceeding.
Several comu nters described the proposal as " mysterious" ano confounding.
In their view, the goal of the agency should bt to compile as full a recurd as possible for the cecisionmakers; the fiRC should not seek to limit the intcrmation it receives in any licensing proceecing.
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 uncerway, suggesting that the Hearing Boards are not overworkea or overwhelmed by cases.
Commenting 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.
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A second focus of concerns was on the-impact of such a change on NRC H
proceedings. A number of commenters suggested that the proposal would cause Ir-interveners to adopt ea'ch other's contentions and assert all issues in order to preserve their rights. This could prolong the hearing and overwhelm hearings with the volume of participation on an issue._ The proposal would also make it. difficult for. interveners to work together, divice' tasks and share the expense of. litigating issues. Such coordination now makes it possible for interveners to financially bear the cost of litigation and i
reduces redundancy in the proceeding. Currently, interveners may share issues and an intervenor may not participate fully knowing another intervenor is raising the issue.
Under this proposal 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 ano technical nature of NEC's proceedings, an intervenor may discover it is interested in an issue it did not joentify initially. The proposal also ignores the fact that cach intervenor brings a different perspective to the proceecing ano can make a unique contribution througn their filings. Boards should be able to judge these filings and give them such consideration as their quality merits.
Finally, several commenters focused on the application of this proposal to an affecteo state. States bring a unique perspective to NRC proceedings and should have the opportunity to submit filings.
Otherwise, NRC could be deprived of valuable input frora the party with the most interest in e
. particular issue.
The State of Nevaca 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 pernit filings and appeals on issues which interveners "scught to place in controversy".
If an issue has not been admitteo 1r.to the proceeding then no record will have been oeveloped and r.o 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 proposel would appear to allow appeals on a much broader basis and permit filings on the merits of the contentions.
The Ccmmission has reviewed the comments on the proposeo changes to 10 CFR 2.754 and 2.762. Af ter consideration of the various arguntnts put torth by the commenters, the Commission is persuaded tudt the proposed changes should j
be adopteo.
Limitations on proposed findings and appeals to issues that the intervenor actually placed in controversy or sought to place in controversy I
will ensure that the parties and the adjudicatory tribunals focus their interests and adjudicatory resources on the contesteo issues as presented and 3
1 argued by the party with the primary interest in, and concerns over, the issues. These sorts of limitations should also serve to reduce the paper burdens f or the adjudicatory boarcs.
We disagree with the suggestion that the proposed limitations will cause interveners to raise a multitude of issues or i
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.6copt-each other's contentions in orcer to preserve their rights, and thus, will prolong and overwhelm the hearing process with the attendant high level of participation on all issues.
The new standards for admission of contentions that we are adopting as part of this rulemaking should serve to limit the degree to which any party can gain admission of contentions that are frivolous or in which the party has little real interest. Moreover, existing sections 2.715a and 2.718 which authorize the presiding officer to consolidate parties, issues and adjudicatory presentations, can and should be used to
. limit unnecessary multi-party presentations and participation in the litigaticr. of common contentions.
The Cour,ission has also examineo the essertion that the proposed rule could violate e provision of the Administrative Procedure Act, 5 U.S.C. 557(c).
That section provides that:
"Before a recommenced, initial, cr tentative cecision, or a cecision 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 partied 7ating in the decisions--(1) proposed findings or conclusions; or (2) exceptions to the decision or recommended decisions of subordinate employees or to tentative egency decisions; and (3) supporting reasons for the exception or proposed finoings or conclusions."
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' -There has been little analysis of this aspect of the APA in the case law; see, e.g., Klinestiver v. DEA, 606 F2d. Il82-(D.C. Cir. 1979).
While we recognize there may be some uncertainty about the' appropriate reading of section 557(c),
we believe that the rule is 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 has specifically raiseo es concerns i.) the proceeding.
Practice under the Commission's existing regulations has been moving in the direction of a more carefully circumscribed appeals process. In.
Philadelphia Electric Lo. -(Limerick Generating Station, Units I and 2),
ALAB-845, 24 NP,C 220 (1986), the Appeal-Board concluded that an intervenor which had limited its participation to certain technical-issues and had not participated in any aspect of litigation of emergency planning contentions did not hhve a right to appeal the Licensing Boaro's decision in connection with the applicant's emergency plan.
"Whether an intervenor has the right to pursue a particular issue on appeal is a function of the level of interest expressed by the intervenor in such issue throughout the course of the proceeding." Io. at 253.
We also note that the phrase " sought to place in controversy was intended to recognize that an appeal and briefs are permissible on the basis that a contention was erroneously rejected. The language was not intended to allow appeals on a broader basis or on the merits of the contentions not somitted.
f
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In' view of all of the'above, the proposed amendment has been adopted.-
1 i
i Miscellaneous Issues-
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Several comenters included their views on other possible rule. changes j
i discussed by the Comission in its 1984 Request for Public Comment on Regulatory Reform Proposals (49 FR 14698, April 12,.1984) which preceded this proposW rule. Those proposals are not a part of this ruleiraking.
The Commission evaluated comments on the 1964 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.
I l
Some commenters objected to the application of these char.ges to High Level 1
1.
Waste (HLW)Licensingproceedings.
The Comission has established the procecures for the HLW licensing proceeding in a final LSS rule which added a l
new Subpert J to 10 CFR Part 2 (50 FR 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 1
amenoments on regulatory reform that would not alreacy be included in Subpart
)
J by cross-reference, should be added to Subpart J.
Section 2.1000 of Subpart
. J cross-references any sections of general applicability in Subpart G of Part 2 th61 will cor.tinue to apply to the HLW licensing proceecing.
As such, all
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s but _one of the provisions.in the final regulatory reform rule (i 2.714, which
- requires contentions to show that a genuine dispute _ exists on an issue of law 1
or fact) will apply to the HLW proceecing.
However, Subpart J contains a new provision'on' contentions, 9 2.1014, and consequently 6 2.714 would no. longer apply to the HLW proceeding. The Commission intenas to evaluate.the need to-
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extend the " genuine issue of fact" standaro to the HLW proceeding.
A.
cetermin6 tion of such e need would result in the Commission proposing a rule omending 10 CFR 2.1014. As.the Commission noted in the Supplementary Information to the final LSS rule --
... the Commission is committed 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. vaste repository. The negotiators. to this rulemaking have L
m6de a number of improvements to our existing procecures.
However, more improvements may be nEcessary if the Connnssion'is to meet the tight 1iuensing ceadline established by the Nuclear Weste Policy Act of 1982, as amended.
By publishing this rule, the Comn.ission is not ruling out further changes to its rules of practice, including further changes to the rules contained in the negotiated rulemaking.
(50 FR 14925, 14930, April 14,1989).
The reviseo rules do not apply to civil penalty proceedings conducted under 10 CFR 2.205. Section 189a. of the Atomic Energy Act does not provide for third perties to participate es " interested persons" in such proceedings.
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~These amendments wili'.take effect-thirty days after publication in the Federal Register. The amendments will apply only-to contentions.in proceedings
^
initiatec after that date. The Commission's rules and administrative dscisions interpreting those rules in existence prior to that date will be
~
applied to contentions filed in proceedings initiated prior to that date, Withdrawal'of Earlier Rulemaking The Conmission published for public comment on June 8, 1981 (46 FR 30349) a preposed rule to make changes to elements of its Rules of Practice, including several of the sections amended by this proceeding.
Because the Consissien 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 cescribed in 4
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, i
1 J
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p,.
u
. i-Paperwurk Recuction Act Statement This final rule contain
'o information collection requirements and therefore
'is not subject to the requiren,ents of the Paperwork Recuction Act of 1980(44 U.S.C. 3501, et. seq.).
l Regulatory Analysis The revisions to the Counission's Pules of Practice in 10 CFR Part 2 improve the effectiver.ess and efficiency of NRC proceedings with due consideration for the rights of all participants.
The changes to 10 CFR 2.714 require the proponent of e contention to submit dufficient factual information t4 demonstrate the existence of a genuine dispute with the opplicant or.the licensee or the NRC staff regaroing a material issue of law or fact.
This amendment ensures that the resources of all participants in NRC proceedings are focuseo un real issues and disputes aniong the parties and thus it is preferable to existing requirements.
The revisions to 10 CFR 2.720 clarify existing practice thet the stafi n.ay not be required:
(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 conserves resources that would otherwise have to be expended in opposing such discovery requests.
The final rule's provisions in 10 CFR 2.743 on cross-examination plans require a party to obtbin the permission of the presiding officer in order to conduct j
J I.
cross-examination and bar the presiding officer from considering any such request unless it is accompanied by a plan containing specific information.
about 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 her. rings, favor making use of such plans standard
- practice in NRC proceedings. The revision of 10 CFR 2.749 permits 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 presioing officer.
The final rule is preferable to continuing the present practice because making it explicit that summary
' disposition motions may be filed at any time during the proceeding encourages the use of such procedures whenever an issue can be disposed of without a hearing..
Since November 1981 a number of alternative changes to improve the hearing process have been 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 experience in the licensing process) and through the Request for Public Comment on Regulatory Reform Proposal published in the Federal Register on April 12, 1984 (49 FR 14698). This final rule improves the efficiency and effectiveness 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 loc 61 governments and geographical regicns, L_
i public heal.h and safety, or the environment; nor cces it represent substantial costs to licensees, the NRC, or other Federal agencies.
This constitutes the regulatory analysis for this rule.
Reculatory Flexibility Certification This final rule does not have a significant economic impact upon a substantial i
1 number of sniell entities. The amendments mooify the Commission's rules of practice and procedure. 110st entities seeking or holding construction permits er Commissiun licenses that would be subject to the revised provisions woulo not fall within the definition of small businesses found in section 34 of the Small Business Act, 15 U.S.C. 632, in the Small Business Size Stancards set out in regulations issued by the Small Business Administration at 13 CFR Part 121, or in the NRC's size stancards published December 9, 1985 (50 FR 50241).
Although interveners subject to the provisions likely would fall within the pertinent Small Business Act definition, the impact on interveners or potential interveners will be neutral.
While interveners or potential interveners will have to meet a higher threshold to gain admission to NRC proceedings and, thereby incur some additional econon,1c 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 information developed to support admission to the proceeding will be used curing the conduct of the proceeding.
Thus, in accordance with the Regulatory Flexibility Act, 5 b.S.C. 605(b), the NRC hereby certifies that
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-this rule does'not have'a:significant economic impact upon a substantial l number'ofsmall; entities.
Backfit Analysis This final rule does not modify or. add.to systems,. structures, components, or
- design of a f acility; the designfapproval or. manufacturing license for a facility; or the procedures.or. organization required to design, construct, or
- operate.a.fhcility.. Accordingly,' no backfit' analysis pursuant. to 10 CFR'
-50.109(c) is required-for this final rule.
List'of Subjects:
Administrative pr6ctice and procedure, Antitrust, Byproduct material,
' Classified information, Environmental protection, Nuclear materials, Nuclear pcwer plants and reactors, Penalty, Sex discrimination, Source material, Special-nuclear material, kaste tre6tment and disposal.
For the reasons set out in the preamble and under the authority of the Atomic L*
Energy Act.of 1954, as amended, the Energy Reorganization Act of 1974, as' amenceo, and 5 U.S.C. 553, the Nuclear Regulatory Conmiission is adopting the fo'llowing amendments to 10 CFR Part 2.
'PART 2--RULES OF PRACTICE FOR 00tiESTIC LICENSING PROCEEDINGS i
_a__1_.__1___1__..._
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- 1. N ' authority citation fur Part 2 continues to read as.follows:
1 i
AUTfiORITY:- Secs. 161, 181, 68 Stat. 948, 953, as amended (42 U.S.C.
l 2201, 2231); sec. 191, as amended, Pub. L'87-615, 76. Stat. 409 (42 U.S.C.
2241); sec. 201, 88 Stat. 1242, as' amended (42 U.S.C. 5841); 5 U.S.C. 552.
~
Section 2.101 also issued under secs. 53,.62, 63, 81, 103, 104, 105, 68-Stat. 930, 932, 933, 935, 936, 937, 938, as amenced (42 U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 2135); sec. 102, Pub. L.91-190, 83 Stat. 853, as s
amended (42 U.S.C. 4332); sec. 301, 88 Stat. 1248 (42 U.S.C. 5871).
Sections 2.102, 2.103, 2.104, 2.105, 2.721 also issued under secs. 102, 103, 104, 105, 183, 189, 68 Stat. 936, 937, 938, 954, 955, as amended (42 U.S.C. 2132, 2133, 2134,2135,2233,2239). Section 2.105 also issued under Pub. L.97-415, 96 Stat. 2073 (42 U.S.C. 2239).
Sections 2.200-2.206 also issued under secs. 166, 234, 68 Stat. 955, 83 Stat. 444, as amenced (42 U.S.C. 2236, 2282); sec. 206, 88 Stat 1246 (42 U.S.C. 5846).
Sections 2.600-2.606 also issueo under sec. 102, Pub. L.91-190, 63 Stat. 653, 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 issueo 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 issueo under sec. 103, 68 Stat. 936,
. as amended (42 U.S.C. 2133) ana 5 U.S.C. 552. Sections 2.800 and 2.808 also issued under 5 U.S.C. 553. Section 2.809 also issued under 5 U.S.C. 553 and sec. 29, Pub. L.85-256, 71 Stat. 579, as amenceo (42 U.S.C. 2039). Subpart K also issueo under sec. 189, 68 Stat. 955 (42 U.S.C. 2239); sec. 134, Pub. L.
g h:
L
- 60 97-425, 96 Stet. M30 (42 U.S.C.10154).
Subpart L also issued under sec.
~
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'189, 68 Stat. 955 (42 U.S.C.'2239). Appendix A also issued under sec. 6 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.1842 (42 U.S.C. 2021b et seq. ).
- 2. In i 2.'714, paragraphs (e) through (h) are redesignated as paragraphs (f) through (1').
In paragraphs (a) and (g) ' f i 2.714, the words " paragraph (d) ~
o of this sectier." which appear in the fcurth senter.ce of paragraph (a)(1), in the single ' sentence in paragraph (a)(2) and' in the single sentence in paragraph (g) dre revised to read " paragraph (d)(1) of this section."
Paragraphs (b), (c), and (o)~of-6 2.714 are also revised and a new paragraph (e) is acded to read as follows:
2.714 Intervention.
(b)(1) Not later than fif teen (15) days prior to the holding of-the special prehearing conference pursuant to E 2.751a, or if no special prehearing
(
conference. is held, fif teen (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 pan cicipate as a party. Additional time for filing the supplement may be
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granted based upon a balancing of the factors.in paragraph (a)(1) of this
'sectien.
I' (2) Each contention must consist of a specific statement of the issue of law or. fact to be raised or controverted.
In addition, the ~ petitioner shall provice 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 anc on which the petitioner intends to rely in proving the contention at the hearing, together.with references to those spec 1fic sources and documents of which the petitioner is aw6re and on which the petitioner intencs to rely to establish those facts or expert opinion.
(iii) Sufficient information (which may include information pursuant to paragraphs (b)(2)(i) and (ii) of this section) to show that a genuine dispute exists with the cpplicant on a material issue of law or fact. This showing must incluce references to the specific portions of the application (including the applicant's environmental report and sefety report) that the petitioner disputes and the supportino reasons for each dispute, or, if the petitioner I
i believes that the application fails to contain information on c relevant i
matter as requireo by law, the identification of each failure and the 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 environmental report.
The petitioner can amend those i
contentions or file new contentions if there are data or conclusions in the NRC draft or final environmental impact si.atement, environmental assessment, 1
1 l
'or any supplements relating thereto, that differ significantly from the data or conclusions ~ in the. applicant's docunient.
1 (c) Any party to a proceeding may file an answer to a ' petition for leave to intervene or a supplement thereto within ten (10) days after service of the petition or supplement, with particular attention to the factors set forth in paragraph (d)(1) of this section. The staff may file such an answer within I
fif teen (16) days after service of the petition or supplement.
(d) The Commission, the presiding officer, or the Atomic Safety and Licensing Board designatea to rule on petitions to intervene and/or reouests for hearing shall permit intervention, in any hearing on an application for a license to receive ano possess high-level radioactive waste at a geologic repository operaticns area, by the State in which such area is located and by any affecteo Indian Tribe as defined in Part 60 of this chapter.
In all other circumstances, such ruling body or officer shall, in ruling on--
(1) A retition for leave to it.tervene or a request for o hearing, consider the f ollowing factors, among other things:
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(1).The nature of the petitioner's right under the Act to be made a party 1
L 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.
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.. (2) The admissibility of a contention, refuse to admit a centention if:
(i) The contention and supporting material fail to satisfy the requirements of paragraph (b)(2) of this section; or (ii)Thecontention,ifproven,wouldbeofnoconsequenceinthe proceeding because it would not entitle petitioner to relief.
(e) If the Commission or the presiding officer determines that any of the admitted contentions constitute pure issues of law, those contentions must be decided on the basis of briefs or oral argument according to a scheoule determined by the Commission or presiding officer.
3.
In 62.740, paragraph (b)(1) is revised and a new paragraph (b)(3) 's added to read as tollows:
(b)(1)
In ceneral.
Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involveo in the proceeoing, whether it relates to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. Where any book, document or other tangible thing sought is reasonably available from another source, such as from the Commission's Public Document Room or local Public Document Room, a sufficient response to an interrogatory involving such L -_
L i-w materials woulo be the location, the title and a page reference to the relevant book, document or tangible thing.
In a proceeding on an application for a construction permit or an operating license for a production or utilization facility, discovery shall begin only af ter:the'prehearing conference provided for in 92.751a'and shall relate only to those matters in l.-
l.
controversy which have been identified b;y the Commission or the presiding-officer in the prehearing order entered at the conclusion of that prehearing conference.
In such a proceeoing, no discovery shall be had af ter the beginning of'the prehearing conference held pursuant to 62.752 except upon leave of the presiding cfficer upon good cause shown.
It is not ground for objection.that the information sought will be inadmissible at the hearing it the information sought appears reasor: ably calculated to lead to the discovery of admissible evidence.
(b)(3) Wnile interrog6 tories may seek to elicit factual information reasonably related to a party's position in the proceeding, including cata used, assumptions mode, and analyses performed by the party, such interrog6teries may not be addressed to, or be construed to require:
(A)
Reasons for not using alternative data, assumptions, and analyses where the alternative data, assumptions, and analyses were not relied on in ceveloping the party's position; or (B) Performance of 6cditional research or analytical work beyond that which is needed to support the party's position on any particular matter.
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1
- 4. In E E.743, paragraphs (a) and (b) dre revised to reaa as follows:
f 2.743 Evidence.
i
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.'(a) General. Every party to a proceeding shall have the right to present such oral or documentary evioence and rebuttal evidence and to conduct,. in i
accordance with an. approved cross-examination plan that contains the information specified it. parograph (b)(2) of this section.if so directed by' the presiding officer, such cross-examination as may be required for full.and true disclosure'of the tacts.
(b)(1) Testimony and cross-examination.
The parties shall submit direct
-testimony of witnesses in written form, unless otherwise ordereo by the presioing officer on the basis of objections. presented.
In any proceeding in which advance written testirnony is to he used, each party shall serve copies of its proposed written testitrony on each other party at least fifteen (15) days in advance of the session of the hearing-at which its testimony is to be presented. The presioing officer may permit the introduction of written testimony not so served, either with the 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 oiscretion of the presiding officer, may be offered and admitted in evidence as an exhibit.
,._,____-,,._,._r_--,-
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- ., (2) The presiding officer may require a party seeking an' opportunity to cross-examine to request-permission to do so in accordance with a scheoule established by the presiding officer. A request to conduct cross-examination-shall be accompanied by a cross-examination plan that contains the following.
information:
(1) A brief description of the issue or issues on whic;1 cross-examination 1
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.
Tne cross-examination plan nay be submitted only to the presiding officer and must be kept by.the presiding officer in confidence until issuance of the initial decision on the issue being litigated. The presiding officer shall then provide each cross-examination plan to the Commission's Secretary for inclusion in the official record of the proceeding.
(3) Paragraphs (b)(1) and (2) of this section do not apply to proceedings unuer Subpart B of this part for modification, suspension, or revocation of a license or to proceedings for imposition of a civil penalty.
5.
In i 2.749, paragraph (a) is revised to read as follows:
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
c k.
((-
.a..
f to all or any part of the matters involvec 1h the proceeding.
The moving party shall annex to the motion a separate, short, and concise watement 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 or opposing the motion, with or-without affidavits, within twenty (20) days after service of the ration. The party shall annex to any answer opposing the motion a separate, short, and concise
. statement of the material facts as to 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 adraittea unless controverted by the statement requireo to be served by the opposing party.
The opposing party may, within ten (10) days after service, respond in writing to new facts and argLments presented in any statement filed in support of' the motion. No further supporting statements or responses thereto may be entertained. The presiding officer may dismiss summarily or hold in abeyance motions fileo shortly before the hearing commences or during the hearing if the ether parties or the presiding officer would be requireo to civert substantial resources from the hearing in orcer to respond adequately to the motion and thereby extend the proceeding.
J C.
g.
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In 52.754, paragraph (c)'is revised to read as follows:
ye 92.754. Proposed findinos and conclusions.
.(c) Proposed findings of fact must be clearly. and concisely set forth in numberec paragraphs.and must be confined:to the material issues of. fact presented on.the record, with exact citations to the transcript of record:and exhibitsLin support of each proposeo finoing.
Proposed conclusions of law must be set forth in numbered paragraphs'es to all' material issues of law or-oiscretion presented.on the record. An intervenor's proposed findings of tact and conclusions of law must be confined to issues which that party placed in controversy or sought to place in controversy in the proceeding.
7.
In 62.762, paragraph (d) is revised to read as f ollows:
62,762 Apptals to the Commission from initial aecisions.
(d) Brief Content. A brief in excess of ten (10) pages must contain a table of contents, with page references, and a table of cases (alphabetically arranged), statutes, regulations, and other authorities cited, with references to the pages of the brief where they are cited.
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' i (1) An ' appellant's brief must clearly identify the errors of fact or law j
that are the subject of the appeal. An intervenor-appellant's brief must be confined to issues which the intervenor-appellant placed in controversy or J
l sought to place in controversy in the proceeding.
For each issue appealed, the precise portion of the record relied upon in support of the assertion of l
error must also be provided.
'I (2) Each responsive brief must contain a reference to the precise portion of I
the recoro which supports each factu61 assertion made.
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Dated at Rockville, Maryland', thisD day of k;,1989.
For the Nuclear Regulatory Commission.
AJ la m San 4uel s
- ilk, (Secretary of he Commission.
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