ML20246K285
| ML20246K285 | |
| Person / Time | |
|---|---|
| Issue date: | 07/06/1989 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | Parler W NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| References | |
| REF-10CFR9.7 M890628, NUDOCS 8907180126 | |
| Download: ML20246K285 (70) | |
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- UNITED STATES -
L-M NUCLEAR REGULATORY COMMISSION REFER TO:- M890628 3 i @% ' ' t
., ASHIN{. TON, D.C. 20555, W
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r LHEMORANDUM'FOR:
William C.
Parler,' General Counsel
.FROM:
bi inuel J.
Chilk, Secretary
SUBJECT:
STAFF-REQUIREMENTS - AFFIRMATION / DISCUSSION AND VOTE, 11:30 A.M., WEDNESDAY, JUNE 28, 1989, COMMISSIONERS' CONFERENCE ROOM, ONE WHITE FLINT NORTH, ROCKVILLE, MARYLAND (Oh,N TO PUBLIC ATTENDANCE) q I.
SEQJ-89-133 - Final Rule for Revisions to'10 CFR Dart 2 to Jmor;ove the Hearina Process The. Commission, by a 5-0 vote, approved a final rule amending 10:CFR Part 2 to modify the Commission's Rules of Practice to improve the hearing process, as attached.
The amendments, (1)
-require filing of-a list of contentions and information to show that a genuine dispute. exists'on an issue of law or fact, (2)
' reduce unnecessary discovery, (3) expand the time.during which motions to dispose of contentions summarily and without a 4
hearing may be filed, and (4) limit an intervenor's appeals and filingslof proposed findings of fact and' conclusions of law to issues which a party actually.placed in controversy or sought to place in controversy'in the proceeding.
The Federal Register Notice should be reviewed by the Regulatory Publications Branch, ?.N, for consistency with the requirements of the Federal Register and forwarded to the Office of the Secretary for signature and publication.
(OGC)
(SECY Suspense:
7/28/89)
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- NUCLEAR REGULATORY-COMMISSION 10 CFR Part 2 RIN: 3150 - AC22, 3150 - AA05 Rules of Practice for Domestic Licensing Proceedings--
. Procedural Changes in the Hearing Process
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AGENCY:.
Nucleer Regulcicry Comission.
- ACTJON:
Final rule.
'SUMVARY: The Nuclear Regulatory Comission is amending its Rules of Practice tc irtprove the hecring process with due' regard for the rights of the partier,.
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The amendments recuire 6 person seeking to participate as a party in ar. ARC proceeding to file a list of conter.tions with the prestains 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 and which, at the time' of the filing, the person intends to rely upon in proving the -
contentien at the hearing, and references to the specific sources and
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documents of which the person is aware and upon which he or she intends to rely'tc establish such f6 cts or expert opinions. The information submitted by Is L
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a pcitrticl intervenor must be sufficient to show that a genuine dispute
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exists between it anc the applicant or licer.see on an issue of law or fact.
-If thc perscr. ftils to satisfy these requirements the presiding officer shall not adrit the contention.
Other amenoments are made to reduce unnecessary discovery, to oescribe procedures by which a presiding officer may require pert 1es tv filt-e de'cription of the purpose and nature of questions which' thcy ir. tend to est witnesscs during cross-examir.ction, to expand the time curir.c'vFich.mctict s to cispose of contentions sunmarily and without a hearing rey he filec, erd to lirit an intervehcr's appeals and filings of proposed findints cf f act erc cerclusions cf law to issues which that party actually placed in controversy or sought to place in controversy in the proceeding.
EFFECTIVE DATE:
Insert dcte 30 days after date of publication in 1
the Federal Register.
-FOR-FUATHER INFORMATION CONTACT:
Francis X. Cameron, Senior Attorney, Rulem6 Ling ar.c Fuel Cycle Division, Of fice of the General Counsel, U.S.
Nuclear Regulatory Conmission, kashington, D.C.
20555; Telephone (301) 492-1637.
SUPPLEMENTAL.Y ILFORMATI0f;.
1.
Background.
On July 3,19P6, af ter extensive study, evaluation ano review and careful censicer cticn of prior public concents,1/ the Commissica published a notice of proposed rulenaking 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, 1950.) The proposed amenon, Lots, which were initially developed by the Regulatery Reform Task Force, addressed spt:cific aspects of the hearings process:
admission of contenticr.s; discovery against NRC staff; use of cross-examination plar.s; timing cf c:ctions for summary disposition; and liroitatiers on interverors' filings of proposed findings of fact, conclusions cf law, and appellate tricfs.
In addition to these proposals, the Commission also requested comments cn a serits of related prcposals ceveloped by former Commissioner Asselstine concerning the intervention process. The comment peried expirec October 17, 1986. fiore than 150 comments, including a few late-filed concents, were receivec frca electric utilities, electric utility ano nuclear power associaticos or their counsel, utility stockholders, coursel for NRC licensees, an architect-Engineer, interveners in hkC proceedings, putlic interest groups, states, local governments, Indian tribes and int (rested individuals. Copies of all comments received are available for public inspection, and copying for a fee, at the NRC Public Document Room at 2121 L Street, NP., lower level, Washington, DC.
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A detailed ecccunt of the background cf this rulemaking is set cut in the prean.ble of the proposcd rule, see 51 FR 24365-24366, July 3,1986.
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.4-II. Sumary cf Corrents.
A.
General.
Although objections vore raised to some of the specific proposals, tbt propostd. rule receivcc broao support from electric utilities, their counsel and. variour. ireustry groups. According to these commenters, the proposed rule would streumline the hearing process and make it more efficient.
States.
local governments, public interest groups, interveners and individuals gererally orpcsec the prcroscis on the grouno that they would curtail the public's rcle in tbc licensing process and reaningful public participation in licensing proceedings would te eliminated.
Noting the need for and importance
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' cf urbiased f actual inferration in reaching sound regulatory decisions and the effectiveness of interver. ors in identifying and obtaining full consideration of vital bcalth and safety issues, these commenters expressed the view that opportunities for full public participation in the licensing process should be
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. expanded, not reduced. Some commenters questioned the need for the proposed changes.. Otters stated that the Commission's rules of practice should be retained ur.thanged.
B.
Comments or Specific Proposals, with Responses.
The sections which follow centain a description of each of the proposed amendrents, a sumcary of'the comments received and an NRC response.
h__.-___m.______.__._m__ _ _ _ _ _ _ _.... _. _ _
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' 1.
Intervention (10 CFR 0.714) Admission of Contentions The propcsed amendments to 10 CFP 2.714 would raise the threshold for the edmission of contentions to require the propcnent of the contention to supply 2
'ir.iornation showing the existentt.cf a genuine dispute with the applicant on an -issue cf law or fact. The required showing must incibde references to the
- specific portiens of the application which are disputed. The ccntention must i
also be suppt,rted by a concise staten4ent of the alleged facts or expert-opinior, together with specific sources and documents of which the petitiorer 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 amerdrents, admission of a contention may also be refused if it appears unlikely that the petitior.er can prove a set of facts in support of the contentitr or if it is determinec that the contention, even if proven, would be of no consequence in the proceeding tecause it would not entitle the petitioner to relief.
Finally, the proposed amendments would provide that a contentien raising only an issue cf law will not be admittee for resolution in an evidentiary hearing but shall be decioed en the basis of briefs and eny 4
cral argument that may be belo.
1 Electric utilities, their counsel and industry groups, for the most part, l
supported this change, while environmental and citizen action groups and state l
and local government representatives opposed the proposed amendments raising ths threshold for the acmission of contentions.
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. Chareettrizing the proposed changes respecting' the admission of contentions as -
L" ore cf the most significant espects of the proposed rule, the commenters whc L
favcred adoptirc' rtcie strir. cent standards of admissibility stated that.the.'
I Concisrion's existing peccedures perritteo too many insignificant, meritless, hyrctheticci ano tir.e-consurring contentions to be admitted and that the prcrcsec amencrents would thve the salutary effect of. requiring petitioners to know in aavarce c' filirg e petiticr. to intervene what issucs they intended to litigtte ar.c how they planned to condbet the litigation. 'In the opinion of sore concertcrs, the picrcsed amendments, if vigorously enforced, could become en importert tool in crystallizer.g disputes et an early stage in the procecc'irg, therety significtrtly improving the efficiency and quel 1ty of the hcering proces:. The commenters noted that the proposed amendmer.ts should curttil the practict of using discovery piccedures to develop cor.tentions' and thct tfe proposed amendrrents would bring NRC practice more in line with Feder>al practice under the Administrative Procedure Act. The propcsed r
arthoments would also, in ene respect, confom URC practice more closely to thut nmitted by the Feaerel Rules of Civil Procerjure. On this point, one l
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commenter noted tbt similarity between Rule 12(b)(6) of the Federal Rules of Civil precedure and the provision in proposed E 2.714(d)(2)(111) under which a l
presioing officer could refuse to attit a contention upon a detertnina' tion that the contention, if proven, would be of no consequence in the proceeding because it would net cntitle the petitiorer to relief.
Sore of the propcrerts of the proposed atendments expresseo the view that the amer.dcents shovic be further revised. Several co7nmenters expressed the vier I
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that the proposed amendments did not go far enaugh in that they failed to include more strinctnt requirements respecting standing. Several commenters cuestioned the propriety cf admitting contentions based on disputes on issues of pulicy.
In-the opinion of these commenters, it wculo be inappropriate for licensing and appeal bocrds to decide policy issues. Policy and disagreements concerning policy should be addressed by the Commission itself. According to these conmenters, to permit policy statements which have been formally adopted by the Commission tc be challenged in licensing and regulatory proceedings devcted to other mrtters would be inconsistent with' current NRC practice (sce 10 CFR ?.758) which precludes perties in any adjudicatory proceeding involving initici licensing, except as provided in 6 2.758(b), (c) and'(d), f roni challenging any Cornission rule or regulation.
Instead, concerns respecting Commission policies should be raiscd at the time the Commission is actively engaged in developing and formulating those policies in the forum provided by the Ccmmission for thht purpose.
In response, the Ccnaission would note that the use of the terms " law, f act 6nc policy" was not meant to change in any manner the way Commission regulations or policy stetements are dealt with in NRC proceedings. The terms were useo nierely to encompass the variety of issues, of ten n.ixed 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 6re to be dealt with befcre the NRC, the word " policy" has been deleted from the final version of 62.714.
.e.
Several conraenters criticized the language used in paragraph (b)(2) of $ 2.714 tc tcscribe tre threshold cf admissibility on the ground that it was unrecesserliy rtdundant because it ir cluded two separate standards of adristibility, J.e., (1) the existence of a genuine dispute with the applicant j.
en a materiti issue of lev, fact or policy, and (2) the information presented l
prompts.reascr.able mirits to inquire further as to the validity of the contenticr.
Scre corrr iters oppcsed, while other comrucnters favored, inclusien cf the " reasonable minds" standard. One commenter noted that the genuine dispute stcr derd is the same standcrd used to determine standing and thet it this standard is applied as it has been in the past, adoption of the prcrcsed amendrents will teve little practical effect. The Commission has concluded that describing the threshold for adntissibility by two different i
rhrases 1s ur.recessary arc coulo create confusion. Therefore the " prompts reascrebic minds to incuire further language has been deleted from the final rulc.
Commenters opposing the. proposed amendments cbjected on the grounds that the proposed ereridments were unnecessary, contrary to due process, unduly hurdensene, ur f air ar.d in violation cf the provisions of section 189a of the Atomic Ener.gy A:ct sf 1954, as amended. According to these commenters, the propcseo stencard for the admission of contentions is so restrictive that it would be virtuelly impossible for persens seeking to participate in an hRC adjudicatory proceeding to succeed in having their contentions admittec with the result thet significant safety issues might not be fully explored or carefully reviewed.
Instead of shstpening the issues in dispute, the proposed
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-1 amencments would simply eliminate certain issues from further consideration with the result that the problems presented might never be satisf actorily reselved. This could be highly detrimental to the public health and safety.
l Asserting that the proposed stancard for admissibility of contentions is far.
more. stringent than that applit.d by the Federal courts, the commenters arguec that,.if promulgated, the standard would have the effect of requiring persons seeking to participate. in an fiRC procceding to prepare and prove their complett evioentit.ry case before hny determination is mace on their right to be'a party to the proceeding.
Ur, der the proposed procedures, several correnters argued, petitioners would nct onlly be required to produce the proof
. of tbcir alleged facts in order tc be admitted to the proof-gathering and tact-finding process; licensing boards woule also be permitted to prejudge the petitionet's evidence before the petitioner was granted standing to participitc in the proceeding.
Sevcral commenters took strong exception to the provision in 6 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 thet "it appears unlikely that petitioner can prcv.e I
a set of facts in support of its contention."
In the opinion of some commenters, the requirement that petitioners must document and furnish evioence 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 documents and inf orn.i. tion is patently unfair er.d cons'titutes a denial
. c' cae process.
Ir addition, they argue, contrary to the intent of the present regulatory scheme, one inrediate effect of the proposed amendments woulc te to shif t the burder cf proof frcn the license applicart to the intervenor. The ccreents also rctea that under the Commission's regulations, license applicar.ts are not required to furnish all the necessary documentation, surperting tic applicatier at the tire the application is first submitted.
These circun.;ter.ces, ccurlec with the rore stringcnt standard for the adrissier, of contertiers prescribeo by the proposed amer.dments, would make it impcssitic fcr irtervenor: 10 prepare and litigate a fully definitive case.
Some ccreentert tisc argue that to the extent that the proposed amer:cments would operate tc bar interveners f rca participating in NP.C adjudicatory rroceedingt, they would contravene the provisions of section 189a of the Attr.ic Ener gy Act of 1954. as amenoec, which states, in pertinent part:
"In any proceeding under this Act, for the granting, susper.cing, revoking, or trending cf any license er construction permit, or cpplicaticn to transfer control, and in any proceeding for the issuar.ce cr modification of rules and regulations cealing with the activitics cf licensees, and in any proceeding for the payment of compensation, ar. evard, or royalties under sections 153, 157, 10Cc., or ISE, the Commission shall grant a hearing upon the recuest cf any persco whose interest may be affected by the proceeding, and shall admit any such person as a party to such prcceedino.
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+ 3 The commenters 6150 opposed the' proposed amendments because, in their opinion, the_ arce cments'would, if adopted, create 's hopeless state of confusion-respecting the matters te be considered in determining whether a persori should be entitled to. participate in a proceeding and the matters to be considered in
. reaching a ' decision on the merits of the proceeding. 'In their view, the-standards used ir; deciding an issue on the merits are not appropr16te for dcciding whether a particular persen should be allowed to participate in a e
proceedirt. The commenters also tcck exception to the cases cited in the preamble of' the proposec' rule in suppcrt of this proposal.
' Finally, sorte commenters objected to the proposed amendments on the grcunas
'that they are unnecessary. Accoroir g to these commenters, presiding officers have adequate authority under the Comission's present rules of practice to bar contentions which tre frivolous and without merit.
In gereral, when an effort has been made to apply the existing requirements in a disciplines manner, presiding officers have crperienced little difficulty in determining whether a particular cor.tention is trcritorious and should be nomitted as an issue in the proceeding. The comnienters are firmly of the view that additional amencments establishing more stringent standards for the admission of contentions are unnecessary.
The Comission c!isagrees with the assertions that the proposed aneendments are unduly burdensome anc so restrictive that it will be virtually impossible for Mrsons to have safety cor.tentions adtritted to an liRC proceeding.
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1 l'r.cer these rew rules er ir.tervenor will have to provide 6 ccncise staterent ot_tra (11eged facts or expert opinion which support the contention and on whict, et the tire cf filinc, the intervenor intends to rely in prcving the centention ut hearing, tocether with references to the specific sources and documents of which trc interser.cr is aware and on which the intervenor intends to rely ir esterlishing the silidity of its contention. This requirement does not cell urer the inter venor to make its casc at this stage of the proceeding, but r6thcr tc irdicatt whet f acts or expert opinions, be it one fact or opirier er rany, cf which it is avere at that point in time which provioe the Ptsis foi its conter.tior.
In addition to providing a staterent cf facts and sources, the new rule will cisc recuire interver; ors to submit with their list of contentions sufficient iniornatien (which rcy include the known significant facts described above) to sher th6t a ger. tire dispute exists between the petitioner and the applicant er the licersee on a caterial isset cf law or fact. This will require the intervenor to read the pertinent pcrtions of the license application, including the Safety Anelysis pepert and the Environmental Report, state the applicant's position ano the petitioner's opposing view. Where the intervenor believes the applic6 tion end supporting n:sterial do not address a relevant m6tter, it will be suf ficient for the intervenor to explain why the application is deficient.
The Connissior coes not agree that this rule contravenes sectier.189a of the Atomic Energy Act of 1954, as amended. A aember of the public has r.o ebsolute
cr untenditional ristt to intervene in a nuclear power plant licensing proceecing under the Atoric Energy Act. 8PJ v. Atomic Energy Commissien, 502 F.2c 424 (D.C. Cir. 1974).
Section IE9a of the Act which provides for intervention is subject to the Commission's rulemaking pcwer uncer section 161p and, thus, to reasor.cble procedural requirements designed to further the purposes of the Act.
EPI v. Atomic Energy Commission, supra, 502 F.2d at 427, 428; see also Anerican Trucking Ass'ns, Inc. v. United States, 627 F,2d 1313, 2
1320-23 (D.C. Ci r.190C-).
Furthermore, the right to intervention under scction 189a for a member of the public is explicitly conditioned upon a
req u e s t. " The proposeo amendments would, it. effect, provide that a " proper request" by a member of the public shall include a statement.of the facts supporting tact contention together with references to the sources and documents on which the intervenor relies to establish those facts.
- Finally, the Administrative Procedure Act creates no independent right to intervene in r.uclear licensing proceedings.
See Easton Utilities Comrnission v. Atomic Energy Conmission, 424 F.2d 847, 852 (D.C. Cir.1970)(en banc); cf. Nctional Coal Operators' Assn. v. Kleppe, 423 U.S. 388, 398-99, 46 L. Ed. 2d 550, 96 S. Ct. 809 (1976).
her does the Commission believe that this requirement represents that substantial a departure from existing practice.
Under the Commission's existing requirements, as explained by the Atomic Safety and Licensing Appeal Board, "[A]n intervention petitioner has an ironclad obligation to examine the publicly cvailable documentary raterial pertaining to the facility in question l
with sufficient care to enable the petitioner to uncover any information that
. couic serve es the foundation for a specific contention. Neither Section IE9a cf the Atoric inergy Act nor Section 2.714 of the Rules of Practice permits ttc filing cf a vcgue, unparticularized contention,_followed by an endeavor to flesh it out throupt discovery treinst the applicant or Staff."
ftf e Dever Co. (Catawbc huclear Station, Units 1 and 2), ALAB-687,16 NRC 460, l
4E8 (198?); vecetec in pdrt en other orocnds, CLI-83-19, 17 KRC 1041 (1983).
See also Ohic v. tJC, 814 F.2c 258 (6th Cir.1987). Under the current roccirement tc trcvice ttt teris for a contenticr., a petitioner must prctide some sert of M niral tcsis indicating the pctential validity of the cont e r,ti er..
"Ttt requirerert generall) is fulfilled when the sponsor of an otherwise accepte!Ce contentier provides c brief recitatfori of the f4ctors urttrlying the ccrtentier er referer.ces to documents ano texts that provide such reescns.' ieras l'tilities Electric Co. (Comanche Peak Steam Electric Staticr., l' nit 2 ), ALAt-868, 25 NPC 912, 930 (1967). The revised rule dces, hovever, overttrn the hcleings of Mississippi Power and Light Co.
(GrandGulf f.Lclear Statier., l' nits 1 ccd 2), ALAP-130, 6 AEC 423, 425-26 (1973) and houston Lichtine erc Fower Co.
(Allens Creek Nuclear Generating Station, Unit 1), ALAB-E90, 11 NRC 54I. E4E-49 (1980). The Appeal Board found in those cLses that the current lit:guage of 10 CFR 52.714 dcas not require a petitioner to descriLe facts which would be offered in suppcrt of a prcposed contention.
The new rule viii require that a petitioner include in its sutsission some alleged fact or itcts in support'of its position sufficient to inoicate that a genuir.e issue of raterici ftct or law exists.
8 l; We reject the argunents that the new rule is unfair and a denial of due process because it reouires interveners to allege facts in support of its cententico before the intervenor is er.titleo to discovery. Several mor.ths before contentions are fileo, the applicant will have filed an application with the Coratission, accomponieo ty multi-volume safety and environmental reports.. Tbtse documents are availtble for public inspection and copying in the Comrrission's headquarters ano local public document rooms. Admitted
' interveners will continue to be able to use discovtry to develop the facts i.ecessery to supprt its ccse.
However, the rule will require that before e conter. tion is admitieo the intervenor have sone f actual basis for its position end that thert exists a genuine dispute between it and the applicant.
It is true-thet this will preclude a contention f rom being adroitted where an intervenor hss no facts to support its position and where the intervenor contenpittes using discovery or cross-examination as e fishing expedition which might produce relevant supporting 1 acts. The Commission does not ttlieve this is an appropriate use of discovery or cross-examination.
BPI v. Atomic _E_nergy grrissien, 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 er.ists between it arid the applicant on a material issue.
The Commission agrees with cor: renters that the new rule may require persons seehitig intervention to do incre work at an earlier stage of the proceeding ther. Under the current regulations. However, the Commission disagrees with the cor.clusion reached by some commenters that the rule shifts the burden of
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. pro V to petentici interver.crs or shoulo be rejected because of the burden placed or, pcter.tial.12.tervenors. The revised rule does not shift the ultimate bcroerf of persuasion er the questien of whether the permit or license shculd
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i be issuec; it rests with the applicent.
Rather, the r ule only details what is expected of er ir.terver.cr as p?rt of its burcen of coning forward with
- inferraticr, ir suppcrt of a proposcd contention. C1 Ccnsumers Power Co.
(Pidler,d plarit, Units I end 2), ALAC-123, 6 AEC 331, 345 (1973). The ferrissior. Ltlicves it te te a reescr.6ble requirement that before a person or organirtticr. is acmitted te the proceeding it read the portions of the application-(inciccing the applicant's sa aty and environmental reports) that ecdress the issues tbbt tre of contcrn to it and derronstrate that a disputt eusts betwe.r it and the applicant on a material issuc of fact or law. Many interverors in l'pC proceedings already ably do what is intended by this requircrent: they review the agglicetion before subruitting contentions, explair thc tesis for. the ctrtention ty citing pertinent portions and explaji.irg rhy they have a otsagreement with it.
The Cornissier also disac ees with the coments that 6 2.714(b)(2)(111) shculd pomit the pctitioner to show that it has a dispute with the Comission staff cr that petitioners nct be required to set forth facts in suppert of contentier.s until tt.( petitioner has access to NRC reports and documents.
Apart from fiEPA issues, v.t.ich are specifically dealt with in the rule, a cont..iticr vill not be adritted if the allegation is that the NRC staff hes r.ct performed an adequate analysis. With the exception of NEPA issues, the tole focus of the hearitis is on whether the application satisfies NRC
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' s rttulatory requirements, rather than the adequacy of the NRC staff
' perf orr.ance. See, e,c.. Pacific Gas and Electric Co. (Diabic Canyon Nuclear
> Power Plant, Units 1 and 2), ALAB-728, 17 NRC 777, 807, review declined, l-
'CLI-E3-32, 18.NRC 1309.(1982). 2/- For this reason, and because the license 1^
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application should include sufficient ir. formation to form a basis for p
contentions, we reject conrxt.ters' suggestions thet interveners not be
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r(c;uired to set forth pertinent facts until the staff has published its FES anc SER.
~ The new rule praioes that in ruling cr. the admissibility of a contention, the presicing of ficer shell net admit a contention to the p oceecing if the interver.or f ails te set forth thc contention with reasenable specificity or establish a tesis for the contention.- In adoition, the contention will be cisniissed if the intervenor sets forth no facts cr expert opinion.on which it ir.tends to rely te prove its contention, or if the contention fails to establish that e'ser.uine'oispute exists betvecen the intervenor and the 4pplicant (or, possibly, the Ni<C staff on a NEPA issue). Contrary to the
- assertions of some conn. enters, the use oT this standard for the admission of r deral courts in numerous instances.
contentions has been supported by the e
Versnont Yankee Nuclear Pcker Corp. v. NRC, 435 U.S. 519 (1976);
2/~ The Comission recognizes that in some cases the applicant's cad the NRC staff's position en a particular issue will be similar. Although under these rules the contention trust be frarneo to disagree with the applicant's position, an intervenor's evidentiary presentation in such a case at the hearing may be airecteo towards both the staff and the applicant to the extent required for a consistent litigation strategy.
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. t Ircepencer.t Eenters Ass'n v. Board of Governors, SIC F.2d 1206 (D.C. Cir.
197f); Ccr.r.ecticut Eerkers Ass'n v. Boarc of Governors. 627 F.2d 245 (D.C.
Cir. 1 PED).
The ccurt in thc lattee case emphasized that "a protestant aces not becore entitlec' tc an evider.tiary hearing nierely on request, or or a bald or ccr.clusory cliegttion that such 6 cispute exists. The protestant must make a minital showing that raterial f6 cts are in dispute, thereby demonstrating thti cr 'incuiry ir. cepth' is appropriate." 627 F.2d et 251. The Commissior.'s rule is ccesister.t s.ith these decisions.
Severti correr.ters were corcerned that the standard " dispute on a genuine issue cf material icy cr fact" is the same one to be used by the presidinc officer 'in rulirg on moticus for summary judgment filed under 10 CFR 2.749.
The Comristion errccis th61 et the contenticr. filing stege the factual support reccisery to show that a geruine dispute exists need not be in 6ffidavit or forrel eticentiary forn and need not be of the cuality necessary to withstand a sunnery disposition n.ction.
At the summary disposition stage the parties hili lil(ly have corpleteo disccvery and esser.tially will have developec the evidcr tiary sutrcrt for their positicos on a contention. Accordingly, there is much less libelibeed that substantial new informatfor. hill be developed by the partic; before the heering. Therefore, the quality of the evioentihry support provided ir affidavits at the summary disposition stage is expected to be of a higher level than at the contentiori filing stage.
The prcposed rule also provideo in section 2.714(d)(2) that the presiding cfficer would refuse tc adrit a contention whers:
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(ii) It appears unlikely that petitioner can prcve a set of facts in suppcrt of its contention; or (iii) The contention, if proven, would be of no consequence in the proceeding beccuse it would nct entitic petitioner to relief.
v.
The requirement in (iii) ebove was intended to parallel the standard for I
dismissing a clcir under Rule 12(b)(C) of the Federal Rules. of Civil Procedure. The inter,t of Rule 12(b)(6) is to permit dismissal.of a claim where the plaintiff would be entitled to no relief under any set of facts which cecid.be proved in support of his claim.
aA nur,ber of commenters di;cgreed with the language of proposed
$2.714(d)(2)(11); specifically, the phrase " appears unlikely", because it suggests' that the presiding officer is to prejudge the merits of a contention before ch interveror has an opportunity te present a fuli case. The Commission recognizes the potential ambiguity of the proposed phrasing and the p6rdgraph has been dtleted.
j Issues which arise unc'er the National Environmental Policy Act (NEPA) are specifically addressed in the new rule. NEPA requires the NRC to analyze the environmental impact of its proposed major act'r significantly affecting the qutlity of the environment.
In the licensing context, the NRC fulfills this l
obligation by issuerce of a draft environne:.tal impact statement (DES) ano a final environner.tal impact statement (FES). Any license or permit application l
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. i t t.' e c t t e f,'E FI. ' t imp 6tt stetement requiren,er.t must contain a complete Environrcrtal Fepcrt (EL) which is essentially the applicaf s proposal for
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the DES.
. See 3D CFP E1.2C ana 51.40).
Asdescribedin62.714(b)(2)(iii),
7:r; interverict tiii be required to demor. strate that a genuine dispute exists betvr.en it anc tr e erplicert or the staff on a material issue of fact or law which reintes tc HEP 4.
Several connenters took exception to the provisions in p6regraph (t)(E)(iii) ci ! 1.712 relating to environn(ntal matters, claiming, arcrp cther things, th61 these provisitns appear to authorize petitioners to
!Ltri* lete-filec ccrientions based on the hP,C staff's environmental review dccuments.
Cre comrer.tet recommer.ded that the discussion of NEPA issues in
! E.714(t)(E)(iii) t( celeteC cs unnecessary, noting the availability of a rigFt, based cr p6st prectderts, tn amtrd or supplement environmental documents te reflatt ner it.forniation. Tnc commenters disagreed on whethcr contentions relatir.p.to environrcntal matters should focus on environmental reports sebnitted by the applicant or environment 61 documents preparet by the f60 s'teff.
The Cermission has reexerined those portions of 5 2.714(b)(2)(iii) which relate tc the filing of er.vironmental contentions in the light of these corrents and has concluded that the text of the rule as presently drafted is clear and that ro further r(vision is neecec. The rule makes clear that tc the extent an environrcntal issue is raised in the applicant's ER, an l-l-
intervenor rust file cor.tentions on that docunent. The NRC staff in its DES or FE5 may vell tale a dif ferer.t position ther, the applicant.
10 CFR l
2.714(b)(2)(iii) c>plicitly recognizes for environmental matters existing
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precedcnt regarcing the right to amend or supplement contentions based on new infern tion. The Commissicn 41shes to emphasize thet these amendments to 6 T.714(b)(2)(iii) at e not intended to alter the standards in.$ 2.714(a) of its rulcr. of practice es interpreted by NRC caselaw, g, Duke Power Co.,
(Latawba Nuclear Statior., Units 1 and 2), CLI-83-19,17 NRC 1041 (1983),
respecting late-fileo contentions nor are they intended to exempt environmental n;atters at t class fron the application of those stanoards.
One concenter objected to the inclusion of the word " concise" in paragraph (b)(2)(ii.) cf ! 2.714 on the ground that it "could be misconstrued as requiring brevity." The commenter added that a word or phrase which connotes sufficient ceteil to infern the reacer of the various factual or other bases for the contention shculd be used instead.
The Commissicn disacrees with the view of the commenter that retention of the word " concise" in paragraph (b)(2)(ii) of f 2.714 could be misleading.
In the cpinion of the Commissicn, paragraph (b)(2)(ii), when read in context with peragraphs (b)(2)(1) ano (b)(2)(iii) of C 2.714, clearly identifies the kind of ottailed information which e petitioner must provide to enable the Conrission or the presidinc officer to determine whether a contention should be admitted in a particular adjudicatory proceeding.
Several conunters suggestea that paragraph (b)(2)(iii) of 92.714 should I
rcquire that the issuc beirg raised is not only in dispute but is also
" material", that is, tht the resolution of the dispute would make a i
. c11terence in the outccme of the liter. sing proceeoing. The Commission concurs t h t.: thet wts the intenticn of the requirement, as is demonstrated by the the larcuace of paragrarb (d)(2)(i) cf $2.714, which providec' for " determining whether a ger.uire dispute exists en a material issue" of law or f act. Section 2.724fe)(2)(111) has been revised tc include the word " material".
Cre concier.ter e: Tressec' the view that there was very little likelihood that conter. tic. s iriscivinc purely legel issues would be submitteo (in most cases ccr.tertiers raise ti>ed cuestiers cf law anc fact) and therefore paragraph (d)(E)(iv) cf ? 2.714 is cr.r.ecessery and should be deleted. Another commenter disegrecd with the ferr, cf 5 2.714(c)(2)(iv). As written, it conflicts with l
the preposed definit 1cr cf a contentien in 10 CFR 2.714(b)(2) as a statement of " let, tact cr policy".
k'hile not oppcsed to the intent of the proposal, the ccncenter recommended ttct this section be revised to read as follows:
If the Conmissicn, the presidir.g of ficer, or the Atomic Safety and Lictrsing Boarc designated tc rule on the admissibility of contentions determines that any of tre admitted contenticos constitute pure issues of ltw, those contentions nLst be decided on the basis of briefs or oral argument according to a schedule detern,ined by the Commission or the presidir,g of ficer.
The intent of the proposed rule in i 2.714(d)(2)(iv) was that purely legal cor.tentier.s, which occo rerely, may be aoniltted es issues in the proceeding.
f'twever, they will nct te a part of an evidentiary hearing, but rather, will l
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l be handled cn the basis of briefs and oral crguments. A new paragraph (e) has I
1 been accec to ??.714 to clarify this intention.
The Commissict, is also reking a clarifying change to 10 CFR 52.714(c). That partgraph prcvides that ary party to a proceeding may file an Enswer to a petitior: to intervere within certbin time periods. Prior to 1978, a person petitionirc to intertene in an NRC proceecing was reQJired to state not only bcw his or her interest right be affected by the results of the proceeding, bLt tisc the basis f or his or her contentions with regard to each aspect on which te er she desirec to intervere. Under that scheme for petitions for Itcyt to intervert, it was clear that a response filed pursuant to 10 CFR L2.714(c) coulc he e response to the contentions and the bases for at:y conter.tions proposed.
In 1970, the Rules of Practice were amended to provice that e petiticier could file his or her contentions separately in a supplement
- c the original pttition to i',1tervene, nct later than fifteen dayt prior to the srtcial pretcaring cerference held pursuant to 10 CFR 62.751a or the first preheurir c conference..Sec';icn 2 714(c) was not amenced to make it clear that answers to these supplemental petitier.s containing contentions anc their bases were permitted as well ts to the original petiticr to intervene. However, the practict before the Corn.ission since 1978 has been that answers to supplements to petitior.: to intervent as well as it an initial petition to intervene are permissible within the timeframe established v 92.714(c). Language is being edded to !2.714(c) to make it clear that answers to both initial petitions and any supplements thereto are permissible.
. Forner Commissinrtr Asselstire also suggested in the proposed rule adoitional charges in' the Comniission's rules on intervention and public participation in 1
the licensir.g process.
Changes to 10 CFR 2.104, 2.714, 2.751a and 2.752 were proposte to recui,t early publication of notice of receipt of an application, te s'recify the tirie within which petitions for intervention can be filed, to serarete thc decision on standing from the decision on the validity of contertier;s, to provide for a mandatory ninety day period of time to draft ccntentiens, und to cicete a two stage screening process to determine whether t r r.ot a gerivire issuc c' c taterial fect exists with respect to each conte r.ti en.
'These conrenters who fevored forner Commissioner Asselstine's proposals felt they would improve ite (fficiency of the hearing process without imposing additional burdens on intersenors.
They were thou5 t to be logical and easy h
to unterstar,d ard d(alt with the fact that although the hearing clock begins when an application is docketed, much of the documentation of interest to interveners may not be ready for some time. Some commenters felt the propcsals would encourage informal discession and resolution of disputes and-were generally more equitable and fair.
Those commenting unfavorably on the Asselstine preposals felt they would exacerbate the current problems of instability and unpredictability in the hearing process. The use of provisional ada.ission and the notice of receipt proposals wculd oni) cc'd additional steps to the he6 ring process without
.ie: creasing its effectiveness. They felt presiding officers already heve the c
authority:to reject petitions for intervention prior to submission of.
contentions ar.o do so. These proposaid would substantially increase the number of parties and contentions without any countervailing benefit. Other commenters, although favoring the approach cf Commissioner Asselstine, Lelieved discovery shoulc take place before contentions and that too much oiscretion was being given to the presiding cfficer to dismiss content 1ons.
The Commission has considered the ccmments on Commissioner Asselstine's proposals (no concluded that it dc.cs not wish to take any additional action regarding these prcresels at this time. Several of them address the same aspects of the hearing process, e.g. the filing cf contentions, as the proposed rule changes made by the Commission, and, the Commission has chosen to adopt those rules essentially as proposed.
2.
Subpoenas (10CFP2.720). Discovery Against NRC Staff The proposed arendments te 10 CFR 2.720(h)(2)(11) would codify two existing grour.ds used by NpC staff to ctject to responaing 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 limited staff time er.c resources. The first ground for objecting reflects existing NRC practice in which a response stating that the requested information is available in either NRC public occument rooms or in public compilations end providire sufficient information to enable e party to locate the material requested is considered adequate. The seccnd ground would limit
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Q the iccpe cf an ir.terrugatory ry barrino the requestor from asking the hRC L
l-stei It'e>rlsir its reasons for rot using data, assun,ptions and analyses wtcre the f;FC siti, oic r.ct rely on this information in its review. Fersons sobrittir9 interrcrater.;
vculo alsc be prevented from asking the staff to p e r' ort tooitier,al research or aneiytitel work beyond that needed to support the fiRC staff's position on any particular matter. Requestors could continue tc surrit int (rreccteritt seeLing to elicit f actual informatier. reasonably roleted it the TJi staff's pc-sition in the proceeding, including data used, asscrstions rede and analysts performed by the NRC staff.
t The cont.cnters whc supportec the proposed emendments cid so because they ttlieved it wetic be advantageous if certain established.and well recognized pe acedents commu.1; used in NRC adjudicatory proceedings were codified in imf's Rules of Practice. Accoroing tc the commenters,Lthe perceived 6ctentaces of ctdificatier. included ecnservation of increasingly limited NRC staff rescurces, ircreaseo use of accepted legal procedures and reduction of deltys in the atplicatico review proccFs. One commenter stated that these procedurcs shoulo net be limitet tc the f1RC staff but That they should be equelly evtilable to til parties to any NRC adjudicatory proceeding. Several ccmrnenters who opposed tbt rule, also made this conient.
Or.e commenter supported codification in principle but pointed out that the proposed accr.oments as presently drafted, de not accurately reflect existing preceder t.
For exceple, the proposed amendments convert a statement ind'c6 ting the availability of a docurent, lono recognized as an acceptable
< q S 7 response, into er' acceptable rationale for not responding. The ccirmenter also tooF. issue with the prchibiti.' tcairest the submittal of questions requesting the hht staff to explain ~why it did nct use certain citernative data or assuirptions or perforrn certain s nalyses. According to the commenter, oues ens of this type would riot require the staff to perfom additional research; tne staff need only respond by providing an explanation.
The cctmenters who opposed plucing accitional restrictions on interrogatories to the NRC staff did so tcr a variety of reasons.
Considered unfair, unnecessary and unwise as a matter of policy, thc proposed arrendments were critic 1zec tecause they wculo oef ect thE basic purpose of oiscovery--to cbtain relevant ir; formation en issues raiseo in and pivotal to the. proceeding, thereby preventing surprise at trial.
A nLtber of commenters noted that the staff 1s a major if not crucial party betst.se it is the party with the technical resourccs and expertise.
Ir'erverors need full opportunity to understand and question the staff's position. Moreover, the stef t should be held accountable for its acticns.
This proposal could restrict the flew of information and would place the 1
burden on interver: ors to locate information bearing on the staff's position.
This would increase intervention costs. The current rules provide ample prctection for the staff.
If anything, discovery against the t,taff should be increased rather that, decreased.
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0 11.rurier of corrtnters c; posed to the rule change expressed concerns similar
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to those cescribed etcse piace !y supporters of the rule. They were concerned ttt the picpesed rule uccia improperly shield 'the staff irem its obligation to explcir er.c. justify its positiori. The stated rationale fcr the rule--ccselet cr the issue cf requiring extensive independent research--does net suppcrt the prcpcsal in the view of one commenter. The staf f ray have excrired alterrrtist ersprptions, data anc analyses and chosen not to rely on t h en..
Interrecaterie! tii.ing thc staff to provide an explanation for why one rerticular scurce. cf Cr.a cr analysis was choser; is fair discovery.
Leveral commenters trstec that parties are entitleo to knew not just the facts supporting the staff's positicr. but whatever facts are in the staff's possession.
It is unreasonable and unfeir to limit discovery to information that supports the staff's position.
Relevant facts which do 70t' support the steff's final 'esitior could be concealed.
p A number of commenttrs were also critical of the assertion that this proposal was in attempt to conservo stett resources. Several asserted that the existing rules already give the staff special status in responding to discesery.
If the staff is to remain a full party, it shculd be equal not privileged._ Comn.ission arguments that this rule is necessary to preserve scerce staff resources are not consistent with pcsition+ previously taken with respect to other parties to NRC proceedings. The Commission has consistently taken the view that parties are nct excused frcm hearing obligations due to a lack of resources.
Inhibiting the flow of infcnmation is not an appropriate J____-_--_-
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1 way to ceai with scarce staff resources.' The Commission should either seek 1
additionel appropriations or eliminate party status for the staff.
j If.the Commissicr. wants.to institution.61'ize the two objectior.s discussed in
- the prcpcsal they should be made applicable to all parties not just the staff.
Conr;.er.ters representing applicants asserted that discovery against them has n<any of the'same objectionable qualities--asking for documents already on the s
docket or requesting the applicant to perform new analyses. These commenters y
sch no justification for codifying the NRC caselaw solelf for the benefit of the staff.
A number of commenters were also critical of the second element of the preposeo rule which would codify the existing NRC practice that an adequate discovery response is to state that the requested information is.availtble in public document rooms or other public compilations, Several commenters noted -
that this prc.posal does more than just codify existing practice. - It that were all it did, the basis for it is weak, because citing a rule rather than caselaw is not a meaningful reduction ir, staff workload. The proposal converts a method of response (citation to a specific documer.t) into grounds for not responding. Under the proposed rule the Licensing Board must determine if 'information is reasonably cbtairable from the public document room'or another source. But the Licensing Board won't readily be able to determine this on its cwn. The staff might as well respond at the outset with the inforniation which constitutes an adequate response under existing
. practice--title, page reference and lo:ation of document--rather than object Ye
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3 an4 bectre' involved ir.. a rounc cf pleadines te determine the staff's _ duty to rt.s rcrit,
i Several com. enters objected to the propesal because of the impact they felt it cculd teve er s ucitit ty gs of precetcings. Cr,e commenter objectec to s
M i;@ eticr.s en interrugettries te the staff in er.f orcaent proceedirigs 4
regarcir.g elterr etive assbr.ptiens ard enalyse!. not relied on. The concern was i
thet if ttt'sicif reibsed to rely cr e particular analysis perfctmed by the licensee er its contrtctcr ir. determining conp11ance, litigation of the issue cct.lc te_ prctrected if the staff were not recuirec' to address it during lN
'discoury.
The Cow 5stiu. has' cecided to adopt the proposed changes to.its ciscovery i
.trescedures; howscr, the charges will apply to ell parties to NRC proceed ngs, Oct just to the NPC staff.
P,ecause of this expanded applicability of the changes,-they 6re being incorporated into 10 CFR ! 2.746, the general provir.1ons governing discovery rather than into 5 7.720 as proposed.
Convissien ctselaw has long established that thile in response to a discovery request a party rmust reveci inicrmation within its possession and control, which rr,ay entail sore investi5ation to determine what information is in the party's possession, the party is not required to engage in independent resea rch.
Pennsylvania Power and tight Co. (Susquehanna Steam Electric Staticr, Units I and T, ALAS-613, 17 #RC 317, 334 (1980). The breadth of V
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permissible interrogatories is limited to those which address factual informaticr. relatea to t. party's position in the proceeding, such as data used, assumptions maae, ard analyses perforraed by the party.
A party rr.ust providc the basis for its positior; cn an issue in the proceeding, but the Conm.issicr does not believe that a party should be c611ed upon through the discovery process to explain why it did nct use other data or be required to perfort edditional studies.
Interrogatories which elicit what data the per.j has relied en and why cre acceptable.
Interrogatories which ask 6 party it describe reasons why other data were not relied upon in develeping a party's pcsition will r.ot be perrtissible. Sc long as prior to the trici, ptrties have en cpportur.ity to learn what another party has dcne or what inforraction thct cthci party has to provide the basis for its positiori, the
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PLrty seekir e discovery will be able te show in the hearing vt at, in its view, the other party should have done or why its position is incorrect. By elirrir.cting burdersome interrogatories the Comission will conserve not only its ovr. statt rescurces, but prcvide a fair hearing precess for all parties.
These principles are particularis 1rrportant wher applied to the fiRC staff. To the extent that discovery elicits otherwise unavailable factual iriformation ccncerning the tasis for the staff's position on a particular issue in a l
proceeding, a party should be better prepared for trial. At the same time, j
the staff shoulo bt thle to produce the f actual information requested with rainin61 disruption of its lin.iteo resources. Staff documents relevant to e proceeding art publicly tvailable es a matter of course unless there is t b
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l 'ecrto' ling jLstificatier. for theirlr.cridisclosure. These publicly available docurents reasonably disclose the basis for the staff's position. Thus formal
, 1, discovery ageinst the staff ray legitimately be narrowed to minimize staff resources 'involvtd ir, time cor.suming discovery procedures.
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The seconc prcpcred chance to discovery procedures does not, despite
- suggestier.,by sore correr,ters to the contrary, add any new bases for objecting s
to ircerrogatcries. TheLcher.ce merely clorifies current practice that wher. E occurent is reestr.ebly/aseileble from another source, such es the Commission's-
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- Public.Docur;ent RooN tr lttal Public~ Document Rocn, the information need not tc provioed in resper.se ML the interrogatory. A sufficier.t answer to suct. 6n interrcgetery is theilocatict,. title and a page reference to the relevant at.c even t.
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Evidtr.ce '(10 CFT< 2.743) Cross-Examination.
The proposed amendment to 10 CFR 2.743 wculd requirc e party to a proceeding to obtair.!the perrission of the presiding cfficer in order to condcSt cross-exarinatien anc would bar the presiding otticer from considering any request to cross-examint unless the request was accompanied by a L
cross-examination plar. conteining specified information. The requireo plan a
i would includc a brief description of the issues on which cross-examination 1
weulo be.cor. ducted and a prcposed line of cuestions to achieve stated I
ebjectives together with the expectec answers. The cross-examination plans
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wculd be kept confidential until the presiding officer issued his or her il L
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cecision.
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The commenters who supported the prcposed amendments believea the requirement for a plan woulc encourage parties to think out their case in advance end.
wu.lo lead to better questions and a shorter proceeding. The proposed changes would rdd structure to cross-tyaminatien and oecrease repetitive and cumulative cuestiu.s. Some noted that crchs-examination plans are essentially already stancard practice, while others 1rdicated their belief that the prertseo changes would ir: prove the Board's ability to control proceedina,
One ccmenter, in supporting the proposal, noteo that the NRC was within its authority to limit cross-examination to cases where it is recuired for full and true oisclosure of the facts; nothing in the Atomic Energy Act or the Administrative Procedure Act guarer. tees an absolute right to cross-examine witnesses. Scacoast Anti-Pollution League v. Costle, 572 F.2d 872, 600 (1st Cir. 1970); cert. denied, 439 U.S. 824 (1978).
Several cf these w e comrenters believed the Commission's proposed changes.
did oct go far enouch. One asst.rted that the proposal woulo not change the Lt;ering process but woulc cnly increase proceoural requirements that will do
.littic absent a vigilant presiding officer. The Commission should only permit cross-examination if the points to be made could not be achieved by written testimer.y. Under such an approach, cross-examination would be reserved for impecching crec'ibility. Several suggested that a party's cross-examination should be limited to issues or contentions that the party hed placed in
. - y4 ccr *oversy.
/.r.cther sugoested that if more than one interested party had
- 'r6ised er. issue, le+.d respersibility f or litigating it should be assigned to cre party.
4 One cernrenter stetcc thet this propo al was so watered down from the Ccerissior's eerlier prcpesel in its Advanced iotice as to be almost rttaningicss. The Boarc should permit cross-examination only where, based on writu rJ pvidence, there is e struir,e and substantial issue of fact and.
reLclutior. wocid te substar,tielly assistea-by cross-examination. This cornenter aisc relieved that the rule should provide for establishing tirr.e limits cr c notec thtt recuiring arid enforcine time limits is routine in Federtl courts trid cthcr adrir.istrative agencies.
Comer ters oppcsed.to the prescsea rule had concerns both with the proposal es
' e whcit anc with specific aspec.ts of it.
Several asserted that i
cross-exan.ineticr. is a furdarter.tel right, and is especially important in NPC proceedings which ceal with riatters cf public health and safety.
In their view, the public interest in a full look at safety matters outweighs an interest in reducir.c e cluttered recora. The proposal seeks to gain efficiency at the expense of quality decision-Iraking and the openness of the l
process.
Tc restrict cross-examination is tc negate the purpose of 1
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adjudicatory proceedings--to adjudicate disputea facts. The purpose oi' crc 5s-exerniretion is to e::plore credibility, inconsistency and bias.
Ef ttetive cross-extri;inetion reouires an elenient of surprise and the ability to shift direction. C + corcenter assertec that the stated reliance cn caselaw i
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'is misplaced. While ttc caselaw does support reo/sirir.g pert 1es to demonstrate
. the need for crcss-examination, it has r.ever suggested that barriers may be uhec to actively preclude'the public litigant from participating.
Several comer.ters argued that the prcposal imposes a disproportionately severe impact on interveners. Some argued that the. proposed rule was a-blatent ettempt to limit the record to testimony prepared by applicant and staff who have the resources to file e large amount of direct testimony.
Interver. ors are ricre likely tc tale their cese on cross examination because the) 11.ek the resources to procuce their own witnesse:..
A r.urrber of comer.ters also cpposed +.he rule as unnecessary because the
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. existing roles, 10 CFR 2.718 ano E.757, are more than sufficient to control cross-examination.
The conduct of e hearing and the scope and amount of cross-exarrirtation arc traditier. ally within the presidirg of ficer's discretion.
One commenter noted thet prefCed cross-examir:ation plans are essentially air er.c'y standard practice. Another stated that such requirements are ur.r.ccessary for expe.rienccd counsel and Unenforceable against others. Several noted that the proposal could waste more time than it would save by creating litigation of the cross-mmination plans and by creating a new area for appellate litigation. The remedy is for the board to control the hearing, not add new paperwork requirements on counsel.
Another comrrenter tock a slightly different approach in opposing the proposed rule. This comenter felt there were preferable means to limit argumentative
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, arc annecesstry cross exerqr,atlor. Farties shcult be limited to litigatir.g oniy' tl.eir ov:n ccrter.tions enc cr.ly their statea interest in the contention.
If rarties hau a' cone.cn ir,terest, their contentions iray be joir.tly acmitted and lead responsibility assigned for litigeting the contention, including c res s-exari na t i cr,.
Rcther than develop more paperwork, the Commission shculo simply reiterate that tearings te conducted in strict 6ccordance with the f.FC's evidertitry practier.
One contenter questicred whetbu a Board in rejecting e cross-examination plen wculd not be prefucging 61. issue because the presiding officer might not unoerstart the part;'s overall litigaticr. strategy. Another questionec whether fRC car. legall.y require e party to produce its workproduct to the Bcard and ultirciely to other parties.
Oc the other side, one comrcenter EXfress'ec CertCerr.thft the filing of plans in ConfioenCe With the Board Coulo unfair 13 ir.11uence the Board beceuse parties could expour.d their theory of the case under the guise cf describing objectives to be achieved durire crost-examinatico.
One'commenter argued that the prcposed rule change violttes the requirements of thc t;ational Environmental Policy Act (fiEPA) for full consideration 01611 environtrental ir46 cts of a decision to license a nuclear power plcit. Another cormienter esserted thet it woulo violate due process requirements if proceedings to impcse civil penalties as well as other enforcement proceedings are r:et excluded fror, the rule.
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' Several objections to specific elements of the proposal were also noted.. Many-
~ felt fifteen days to review prefiled testimony and prepare cross-examination, plans was insufficient. A number of commenters objected to the requirement that the plans include not only questions but also.the expected answers to
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i questiens.. Most felt a statement of objectives and a prcposed line of questions was. sufficient for a Board to determine relevancy.
If ar.swers are '
required, ther a party is in effect limited to asking questions for which he I
. or she alrLaay knows the answers.. A equirement for prefiled questions and r.nswers would unfairly limit the secte of cross-examination because ittould hut olick cuestientru to follow up on the unexpected. Crcss-examination is dynamic sod litigants need the flexibility to try different t'acks. The logicel.extensien of the proposed requirement would be plans for rt: direct and recross-exurination which would further delay a proceecing. Several comenters also octed their belief that this. requirement could have a negative
.* pact on discovery. They feared it could encourage a lack of full and prompt response to discovery' by applicants in order tu make it dif ficult for 3
interveners to file adequate plans ano, consequently, to conduct cross-examination.
The Comission believes that cross examination plans can have a very bentficial impact on the conduct of a hearing by encouraging n rties to develop ano evaluate the objectives they expect their crcss-examination to
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achieve and by giving the presiding cfficer the necessary information to effectively manage the proceecing.
Tr;e Comission oisagrees with thosc commenters who believe ther the use of cross-examination plans will sacrifice o
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the cotlity or 'citrre!! of its decisionr.4 ting for the sake of efficiency.
Crcss-examin6 tier plans have been used effectively it a number of Comission p ccet cings. We cc not believe.it is unduly buroensome to require 6 party tc a proceedinc tc exerir.e prefiled testimony sufficiently to be.able to on.icLlate to ttc presicir.g (fficer the nature of the cuestfotis the party belines are necessoty tu illurrinate the issues of concern to it.
- Hcwever, a
i becci:e the usefuirtis of thu procedure is highly dependent upon the l
i circumstances of h particuler proceeding, the final rule has been changed to cive the Presicirr Officer ciscreticr. to require submittal of the plans.
l The recciation nates clear that partiet are entitled to conduct such cross-examin4tten, in accercance with a plan if rec:uired by the Presiding-1 0'ficer', as is r.ecessary fer fell anc true disclosure of the f acts. This is th standard set forth ir. section 7(c) of the Aoniinistrative Procedure Act, 5 L.S.C.556(d)ar.dexisting$2.743(a). That provision has never been unc.crstood to confer untettered richts to cross-examine witnesses. See Seecoest Anti-Pellution Leacue v. Costle 572 F.2d 872 (1st Cir.1978); cert.
denied 439 U.S. 824 (1978); h_crthern States Power Co. (Prairie Islanc Nuclear Generating Flant, Units I and 7), ALAB-244, 8 AEC 857, 867 n. 16 (1974),
reconsideration denied, ALAB-252, 6 AEC 1175, aff'd., CLI-75-1, 1 NRC 1 (1975). The standerd in the rule w n) assure that issues are appropriately cramined end it is also ccnsistent with the Commission's obligations under NEPA to consider the errironmental impacts of a decision.
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L'e dc riot believe, as suggested by sorte commenters, that a rnore restrictive test for cross-examination, e.c. where genuine and substantive issues will be substantially assisted by cross-examination, is appropriate. The option of requiring use of cross-ex winetion plans togethcr with the discretion granted to the presiding officer elsewhere in the regulations to limit unnecessary, argurrentative or ouplicative cross-examination provide adequate measures to control the concuct of cross-examination.
4 This regulaticr. will net inhibit a party's ability to use the element of it.rprise or shif t direction as the cross-examir.etion progresses. Wher, e plan is required, parties ut.st submit objectives er.c a proposed line of questions.
They are not recuired to subn.it til of the questions to be asked.
If the objectives are sufficiently developed and cescribed, there will be no irrredirnent tc shifting tbc direction of questioning in resgnse to the answersi received because the presiding cfficer will be aware of the ultimate objective of the cuestioner or te able to ascertain through brief queries of the f
cross-examiner why the char.ge in oirection is appropriate.
It is also noted that the piens are required tc be kept confidential by the presiding officer.
The Commission dces agree with a number of commenters that a requirement to irclude the gstulated 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 t,fficer understand more ebsily how the proposed line of questions would echieve the stated objective. We have concluded, however, that the statement of objectives can provice sufficient notice it, the presiding officer of the party's intentiens and the final rule deletes the requirer 2nt to include in the plan expected responses to proposed questions.
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> -' - Severel concentcrs 1:cre 'also concerned that 15 days was insufficient time to
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exerir.c testiricry.and prepare cross-examination plans. Deleting'the.
recuirccut to include postulated = answers should eliminate much of the difficulty which comer.ters, identified for preparation of the ' plans.
Therefore, we are rr.teining the 15 day preffling requirement. However, I
lar5Lage has teen added to 52.743(b)(2) to indicate that the schedule for filing cress-exarir.ction p1trs is tc be established by the Presiding Officer.
7 tis vill csscre th61 the presidire officer will have sufficient time after t'ilir.g of testircry tut before the hearing to review the plans and snake any necessary rulings. It will else permit the Presiding Officer to accomodate any Ltdcoe circurrstances of L perticular proceecir,g.
Several comenters st.ggested that the Comission should impose strict limits cn 1. hen cross-examination will be available, e.c.,'for impeaching credibility ct where a geruine and substantive issue is substantially assisted by
. cross-e>6mination, and thet it shculd limit the issues on which an intervenor tr.cy cross-exerint. and assign lead responsibility to a party when several have 1
raised the sun.e 1ssees.
The agency's rules currently authorize a presiding officer to consolidate parties and limit or consolidate cross-examination.
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CIT; 2.715a, 2.710 anc E.757. The Commission believes it is desirable to l
retain the presiding of ficer's flexibility to decide whether such l
consolintion is appropriate and therefore, has not lirnited the presiding
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officer's discretion in this regard.
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- 41 One commenter notec thet civil penalty and enforcement proceedings should be excluceo f rcm these requirenients. As drafted, preposed paragraph (b)(3) ci 6 l
y 2.743 provided that paragraphs (b)(1) and (2) of the section do not apply to proceedings urc'r.r Subpart B of this part for modification, susperision, or revotetion of a' license. This was intended to continue the existing exemption for tr.forcement proceedings from requirements reDaroing profiled testimony and provice a similar excmption ccocerning cross-examir.ation plans. The l
Corrr.ission agrees that civil penalty proceedings as an additior;al type of enforcernent proceeding should be incluotd within these exemptions. The final rule has been revised to clarify the intended exempticns and to include civil penalty proceedings within the exemptions.
Scveral charges of a clarifying nature have been ir.ade to the rule as propo:;ed.-
10 CFR 52.743(b)(2)(ii1) has been modified to inoicatt that the presioing officer is to Ecop the cross-examinatiu. plans in confidence until the initial decision on the ir,etter being litigated has been issued. The lenguage de.ccribing how the plans are to becon.e part of the officiti record has also been clarified.
4.
Authority of Fresiding Officer to Dispose of Certain Issues on the Pleadings (10 CFR 2.749) Summary Disposition The proposed amendment to i 2.749(a) would permit motions for summary oistesition to be filco et any time during the proceeding, including caring the hearing. Current rules provide that sumr.:ary disposition motions shall be
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filec withir. st.ct tire as rey be fixed by the presiding officer and also prcvices that the presiding officer may disriss rhotions filed shortly before ttt hearino corrences if responding tc or ruling on the motion would divert substentici resturces from the1 hearing. The proposed change is intended to give perties intxirrur flexibility to file such moticr.s and to terininate litiretion at any pcint in the proceeding when it becomes apparent that no
.cermine issue of reteriti f6ct ren.cins in dispute.
.Those comenters wht. fevered the prccosed char.ge felt that it would help siirplify and raticrtli:e tFe hearing process by preventing unnecessary litiretion. Resolutier cf issues would be permitted at ar,y point where it becare apptrent furtk r hearing is unnecessary. Thus, the proposal could erncite elirinetici. cf frivolous cor,tentions. Ar.cther corwenter pointe 0 out that !
.7a9(c) vculd still be cveilable to protect a phrty who for valid reasers could ret responc to a motion for suunary disposition, ar.d would thus
. provide sufficier.t protectico against inopportuita rnotions.
Several comenters recommended that the proposal be clarified te pnvide that during a becring, where cross-examinutier,has not created a genuiut dispute of
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fect and the intervener has t.ot called any witnesscs, the Board is empowereo to grant surocry disresition on the applicant's testiscny or the evidentiary reccrd, withcLt a requirement for suppcrting affidavits.
Correrders cpposing the proposed change genertily felt that it woulo r.et it. crease the effectiveness of the hearing prccess, but rather could result in i
chaos una encrricus inefficiencies curing the hearing proctss. Several commenters were particularly cor.ctrned that this change would create the cppertunity fcr harassing rautions. Well-funoed parties could overwhelm other parties with paperwork at crucial times.
Several concenters felt the change would be unf air to interveners, who ger.erally have fewer resources and rely on volunteers. Several indicated that time was needed befcre trial to prepare testimony anc review ttit of others.
If sunraary judgment motions could be fileo anytime, they could c1 vert resources away ficm trial preparation.
In accition, several expressed concern that motions could be filed before discovery was completec and before opponer.ts of the rnotion could have obtained inferrration to resgnd to the motien. This could result in legitin, ate safety issets being lost and never litigated. One commenter notea that this propcsec change ccrstitutes a departure from Federal practice. The purpose of summary judprrent is te climinate issues from the evidentiary hearing; therefore, summary dispositicr.ruotions are appropriately filed before a hearing begins.
Orce the hearino has startec, use of summary judgacr.t motions is inore likely to slow down rather thur. speed up the process.
I,nother commenter noted that the rule change is ut.riecessary because the currer t rule woula permit sumary judgment motions at all times if the presiar's efficer permits.
If the rule is changed, however, the comenter argued that the last ser.tence of the current 10 CFR 2.749(a) should be retained.
It provides that the Board may summarily dismiss summary disposition motions if they tre filed shortly before or during the hearing ur.d would result in e setstantial diversion of resources. The commenter expressed i
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ccrcerr ttEt withcLt this sentence the presiding officer's authority to ceru ci the hearing prccess woulo be cirr.inished. The Board should be able tc disriss or et least boic ir, abeyance motiens filec during the hearing that have the potentif1 tt cisrupt the hearing.
Surracry c'isrcsitier. is a significant procedural tool to elirninate un.,ecessary hearirt tirt srtra cr; testircry and cross-examination where no treterial issues cf f act remain 1r. L'isputc. The Commissict, has evaluated the comer.ts on surrary 01spesitic r and cor,tinues tu believe that tht. aavantages for stretriining trc. hecring process by cyplicitly pomitting sumary disposition motior.s to be fih.L' tt any time during the proceeding outweigh the potential cisaovartsges for the process. The Comrrission's regulations in 10 CFR I.749(c) provide safeguarde against pctential abuses of the sumary cisptsitinti procedures. A party who is unable to respond to such a motion because discovoy is incertplete may stste his or her reasons it: a response to the rnetien and the presiding officer may tcfuse to > grant sumary disposition er tale other appropriate ettion. The Comission believes that this provision proviots sufficiert protection in those instances where a party opposing a cction for surrery disposition is :tnable to respond. However, the Comission recognizes the valicity of the concern expressed by several comenters that sursory disposition rrctions fileci close to the start of or during a hearing have the pctential fcr prolor,ging the hearing. Therefore, a sentence has been l
added to 10 CFR ?.749(a) to give the presiding officer the discretion to dismiss or hcid in abeyanct sumary disposition rnotions which could divert
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' substantial rescurces from the heuring 6nd thereby prolong the hearing-prccess.
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5.. Propcsed Findings and Conclusions (10 CFR 2.754) and Appeals to the Commission From Initial Decisions (10 CFR 2.762) Limitations Thr proposed arrendrrent to 10 CFR 2.754(c) would limit an 'intervenor's filings of proposed findingt of fact and' conclusions of law tu issues which that party
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actually placed in controversy or sought to place in controversy in the proceeding. The prcpesed arrendment to 10 CFR 2.762(d) would similarly limit
.the issues which an intervencr could raise in an appellate brief. Under current practice, a part) trey file propcsed findings and conclusions of law on any issue in the proceeding and may also appeal on all issues in the proceeding. The only limitatien is that a party must have'a discernible interest in the outcome of the particular issue being considered.. The purpose cf the proposed change is to ensure that presi ing officers and agency appellate tribunals wili be able to focus on disputed issues in a proceeding as presented and argued by parties with a primary interest in the issue. The change would ciso avoid having these efiicials inundated with filings from persons with little or no stake in the resolution of a particular issue.
The propcsed amendrrents 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 should be free to submit findings on all issues which coulc effect the Corraission's decision tc grant a license or to take an appeal
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J1 rom et. Edverse decision. The hRC staff has an overall. interest in the
.prcceeding te etsure that the'public health and safety and environmental i
values ere protected.
Ccmrenters.scpportinp tbe change agreea that it would improve the hearing process anc wouic certribute to the overhil effort to streamline and make the hearir.9 process r. ore efficier.t. Several indicated they felt this change had cons 1ctreble rerit er.c woulo ensure that filings arc submitted by parties who have e real'ccr.ccrn anc ir.terest in resciution of issues. One supporter of thc pruposal suggested thr.1 the currert policy which perniits appeals by a party or, arc issue whether they hevt litigated it or not is inconsistent with the basic tenet of hterirgs' to resolve oisputes between spccific parties.
EtcLnoent filirgs are unt.ecessary end generally r.ot helpful.
Crc commentcr suggested that the Conrission go further and preclude an interver.cr f rom pursuing issues ir, which it has no cognizable interest.
If this'were dor.e, there wculd be no need to place linits on cross-examination or
. filings. Another suggesteo that the rule should also provide that an it.tervenor who fails to file proposed findings cr. an issue may not thereafter appeal the pertiori cf the initiel decision which deals with that isstc.
Cons.crits by oppener.ts of the proposed change focused on three main points.
The first aree ccrcerned the discriminticry imphet en interveners and an assertec misperceptien on the p6rt of the NRC of the role of interveners in NPC proceedir:gs. Several esserted that the proposal was a der.ibi of oue
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L process and one commenter stated that the Administrative Procedure Act entitle.s 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-l explanation given for discrin.inating against interveners. They called attention to the fact that in its prcpcsed rule the Comission acknowledged that interveners have bruac, generalized interests in protecting the health and shfety. This interest is akin to the same kina of interest which the Cornissien four.d to be justification for preserving the right of the f4RC staff to file prcposeo findings and conclusions of law. One comenter asserted that ttc process of gaining adnission as a party should be sufficient to dismiss any tilegetiers cf u lack of c discernible interest in the outcorre of issues raised in the proceeding.
Several commenters oescribed the propeshi as
- mysterious" and confounding. In their view, the scal of the agency should be to compile as full a record as possible for the decisionmsters; the NEC should not seck to limit the information it receivts in any licensing proce.eding. Findings and conclusions do not harm the decisiert..aker and could be helpful.
Another commenter noted thet the NRC currently has less th6r. a dozen proceedings underway, suggesting that the Hebring Boards are not overwor kea or overwhelmed by cases.
Commenting specifically en the limitetion of appeals to issue.s litigated by a party, or.t. person noted that an erroneous initial decisich should be identified ano corrected no matter who initially raised the issue of concern.
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- A secer,c focus of concerrs was on the imp 6ct of such a change on hRC l
l procei.ci ng s. A r.urber c' corror.ters suggested that the proposal would cause interveners tc adcpt each other's contentions and assert all issue; in oroer to preserve their rights. Th'is could prolu.g the hearing and overwhelm 1
hearir4s with the velurte of participation on en issue. The proposal would also trale it difficult for interveners to work together, dividt tasks and sh6re the exp rse o# liticcting issues. Such coercination now inakes it ressible fcr iritervencrs to financicily bear the cost of litigation and reduces reduricancy ir the proceeding. Currtr.tly, interveners may share issues arc en interverer may net rcrticipate fully knowing another intervenor is nising the issue. Onct.r this proposel if a party subsequently fails to pursue an issue, etber interveners would not hu e the opportunity to eccpt the isste. WithtLt this opportunity, further consideration of issues would be t'lecf ed rcghrcless cf how serious cr nieritorious they were. Also, because of the cortplex 6no techr.ical r,aturc cf hkC's proceedings, an interver.cr may discover it is interestec in nn issue it did not ider,tify initially, The prcposel also ignores the fact thet each intervenor brints 6 different perspective to the proceecing and can trake a uniquc contribution through their i
f iiir.gs.
Boards should be able to judge these filings and give them such cor. sideration as their quality merits.
Finally, several comrrerters focused on the application of this proposal to an affected state. Stetcs bring 6 unique perspective to NRC proceedings and shculd have thc opportunity to submit filings. Otherwise, NRC coulo ve
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ceprived of valuable input f ror: the perty with the n, cst interest in a
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- particular issue. -The State of fievada indicated its view that under the Nuclear Waste Policy Act, ~a host state er -Indian tribe is to be accorded the stme status as the' staff or an applicent. The proposed change would thus violate provisions of the NWPA.
- Another group of commenters, while generally fevering the proposal, disagreed with the language which woulo prmit filings and appeals on issues which interveners "scusht to plcce in controversy'.
If an issue has nct been admitted into the'p,accecing then no record will have been developed ano no basis for propesea findirgs will exist.
It is appropriate to ellow an appeal and briefs on the tcsis that a contention was erroneously rejected. But this propcsal would appear to allow appeals on a much broader basis and permit filings on the t'erits of the contenticrs.
The Ccmmission has reviewed the consents on the proposed changes to 10 CFR 2.754 end 2.762. Mter consideration of the various arguments put forth by the connenters, the Comission is persuaded that the proposed changes should be adopted. Limitations on pr0 posed findings and app 6Lis to issues that the intervenor actubily placed in controversy or sought to place in controversy will ensure that the parties and the adjudicatory tribunals focus their interests and adjudicatory rescurces on the contested issues as presented and argued by the party with the primary interest in, and concerns over, the i
issues. These sorts of lin;itations should also serve to reduce the paper i
F buroens for the adjudicatory boards. We disagree with the suggestion that t s
. proposed limitations will cause interveners to raise a multituce of issues c.-
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p adc;; each other's-conterittens in orcer to preserve their rights, and thus, w11i prolong ard overwhelm.thc tearing process with the attendant high level of f erticipEtitrt cr. ell issues. The new standards for admission cf conter: tiers that we are aooptirg as part of this rulercuting should serve to lirdt tre degree te which eny perty can gair. 6dn,ission of contentict.s that are frivcicus or it, wtict the party has little ret.1 interest. Moreover, existing sectitr.s 2.7L arc 2.7]E v.tich authorize the presidirig of ficer to consolidate partict, issues arc' adjucicticry presentations, car,end should be used to I
lirit errecest.cty r..ulti-rerty presertetions and participation in the l i t i ge t i c o 01 c or..t.. r-c c r.t e n t i on s.
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Ttt C onc.issict has also enr.inec the tssertion thet the proposed rule could vicii,te a provisicn of the Acrinistrative Proceoure Act, 5U.S.C.557(c).
Thct section rrcvices thct:
"Pefore a rtects.enoec, initial, er tentative cecision, or a decision on egency review of the decision of sulcrdinate employees, the parties are entitlec' tc a reasonable opportunity to submit for the consideration of the errployees participating in the cecisions--(1) proposed findings or conr.lusions; or (2) exceptions to the decision or recorraenoea decisions of suboroinett erployees or to tentetive agency decisions; and (3) supporting reasons for the exception or proposed findings or conclusions."
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There has been little analysis cf this aspect of the AFA in the case law; see.
0.r., Klinestiver v. DEA, 605 F2d. 1182 (D.C. Cir. 1979). While we recognize there may be some uncertainty about the approptinte reading of section 557(c),
we believe that the rule is in acccrd with the Administrative Procedurt Act because it preserves the opportunity for parties to tile findings of f act, conclusions of law, and exceptions to initial decisions with respect to those issues which the party has specifically raist.d as concerns in the proceeding.
Practice ur. der the Corrission's existing regulations has been moving it, the direction of a more carefully circumscribed appeals process. In Philadelphia Electric Cc.
(Limerick Ger.erating Station, Units 3 cr.o 2),
ALAB-S45, 24 NFC 220 (19E6), the Appeel Board ccncluceci thet an intervenor which had limiteo its participation to certain technical issues and had not participated in any aspect of litigation of en,ergency planning contentiers did r.ct have a right to appeal the Liter. sing Board's decision in connection with the applicant's emergency plan.
"Whether an interver.cr has the right to pursue a particular issue en appeal is t fLriction of the level of it.terest expressed by the intervenor ir. such issue throughout the course of the proceeding." Id. at 253.
We also note that the phrase " sought to place in controversy" has intended to reccgnize that an appeal ar:d briefs are perrnissible on the basis that a contention was erroneously rejected. The language was not intended to allow appeals on a brcader basis or on the it,erits of the contentions nct admitted.
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. Ir. vier cf cll c'.the ebove, the. proposed amendment has been adoptea.
hiscellerecus Issu(;
Several commenters irclucec thcir views on other possible rule changes
. discussed by the Co.icasticr. in its 1984 Request for Public Comment on Reguletory Peferr Prottsels (49 FR 14698, April 12, 1964) which precedec this propcsed rule. Tttse proptscis are not a part of this rulemaking. The Commission eveluttec comrents on the 1984 proposals as part of the cecisico-making process which led to the choice of the five proposed changes which constitutt this ruler,ating.
No further discussion of thosc initial trcrosais is necessary.
Some commentet s objected to the application of these changes to high Level Maste (HLk) Licensing proceedings.
The Commission has established the procedures for the PLW licensirs proceeding in a final LSS rule which added a new Subpart 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 neeced to these provisions. As part of its evaluation, the Ccnaissicr. is considering whether any of the provisions in the final aner.dnents on reculatory reform that would not already be included in Subpsrt J by cross-reference, should be added to Subpart J.
Section 2.3000 cf Subpart J cross-references any sectier.s of general applicability in Subpart G of Part 1
2 thet will cor.tinue to apply tc the hLk licensing proceeding. As such, al?
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Lut one of the'provisior.s in the final regulatory reform rule (6 2.714, which requires contentions to show that a genuine dispute exists on an issue of law or fact) will tpply to the HLW proceeding.- however, Subpart J contains e new provisien on conter.tions, G 2.1014, and consee,uently ! 2.714 'would no longer apply to the HLW proceeding. The Commission intends to evaluate the need to extend the
- genuine. issue of fact" stanoard to the HLW proceeding. A dcttrniination of such a need would result in the Commission' proposing a rule arending IC CFP. 2.1014.
As the' Commission noted in the Supplementary Information to the final L55 rule --
... the Commission is committed to do everything it can to strcumline its licensing process and at the same time conduct u thorough safety review of the ~ Departraent of Energy's application to construct a high-level weste repesitory. The negotiators to this rulemaking have race a number of improvements to our cxisting procedures. However, more irprover.ents may be r:ecessary if the Connission is to meet the tight licer. sing deadline established by the Nuclear Wasic Policy Act of 1982, as amended.
By publishing this rule, the Commission is not ruling cut furthcr changes to its rules of practice, including further changes to the rules contair.ed in the negotiated rulemaking.
(50 FR 14925, 14930, April 14, 1989).
The revised rules do not apply to civil penalty proceedings ccnducted under 10 CFR 2.205. Section 109a. of the Atomic Energy Act does not provide for third parties to participate as " interested persons" in such proceedings.
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5These amendments'will.take'effect thirty days after publicationLin the Federal Lj
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.l Register. The amenaments Will apply only to contentions in proceedings.
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,initiatedLafter that-date. The Commission's rules anc administrative s
decisions:1 interpreting those rules it, existence prior.to that cateLwill be-appliec-to contertiens filed in proceedings initiated prior to that date.
.i Nithdrawal of Ear, lier Puleratir.g 1The Commission' published 'for public concent on June 8, 1981'(46 FR 30349) a proposed rule to make. cherges to eierents of its Rules of Practice incluoing several ef ~ the sections amended by this proceeding. Because the Commission
-has chosen. to proceed viith. acoption of the changes to.its Rules of Practice ircludehinthisrulemaling,theearlierproposalis. withdrawn.
j Envirenrertal Irpect: Catecerical Exclusion
.The NRC has determineo that this final rule is the type of action described ir, categorical exclusion 10 CFR 51.22(c)(1). Therefore, neither an environmental irpact statement nor an environmental assessment has been prepared for this propoced regulation.
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Paperwork Reduction Act Staterent This finel rule contains no information collection requirements and therefore is net subject to the requirements of the Paperwork Peduction Act of 1980 (4t.
U.S.C.3501,etseo.).
peulatoryAralysis The revisior.s to the Corrission's Rules of Practice in 10 CFR Part 2 improve the effectivermss and efficiency of MRC proceedings with due consideration for the rights of all participants. Tr.e changes to 10 CFR 2.714 require the proponent of a contention to subn.it sufficient factual ir. formation to demonstrate the existence of a genuir.e dispute with the applicant or the licensee or the NPC staff regarding e material issue of law cr fact. This amendirent ei.sures thct the resources of all pt.rticipar.ts in NRC proceedings are focusea on rcel issues ard disputes cmong the parties ano thLs it is preferable to existing requirements. The revisions tc 10 CFR 2.720 clarify existing practice that the staff may not be required:
(1) to perform l
edditional research or analytical work beyond that required to support its position, or (2) to u plairi why it did not use alternative data, assumptions, or analyses in its reviews. Codification of this requirement is preferable to relying on uisting case law because it conserves resources that would otherwise have to be expended in oppcsing such discovery requests. The final rule's provisions in 10 CFR ?.743 on cross-examination plans require a party to obtain the pemissier, cf the presiding officer in orcer to conduct L_-___________.
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crc >s-e>'erinatier tr,c bar the presiding officer from considering any such i
request unless it is acccrpanies by a plar; containing specific it. formation ebcLt the nature and purpose of the proposed line of questioning. Phile the
'use cf crcss-e).atinaticr. rians cculo have been left as e n.atter of discretion for the presiding efficer, the t(refits from the use of such plans, i.e., merc fccused and cor:roiiec hearings, favor making use of such plans standard tractice it. hf.: ;receedings.
The revision of 10 CFR 2.749 permits the filing cf retier.s f or surr.ery disposition at any time'during a proceecing. The currert practice letves the tiring f or filing of such motions wholly within the c'1scretict cf the presicing officer. The final rule is preferable to cor tinuing the preser.: rrectice because makir.g'it explicit that sunst.ry cispositier reticr.s re) Le filed at ery tire during the proceeding encourages the use cf such prccecures wher.ever an issue can be dispesed of without a betrirg'.
Since November 19f] a number of citernative changes to iniprove the hearing I
precess have beer, evalucted by the Regulatory Reforn Task Force, the Ser.ior Aavisory Group (NRC personnel), the Ad Hoc LonT.ittee for the Review cf huclear Feactor Liter. sir.g Reforn Prcposels (non-NRC persens with experience in the licensing process) and through the Request for Public Connent on Regulatory
' Reform Preposal pub 11sted in the Federal Register on April 12, 1984 (49 FR 2t.695). This finel rule improves the ef' ciency and effectiveness of NRC's hehring process while mair.teining due regard for the rights of affected parties and thus is the preferred alternative. This rule does not have a i
significar:t impact on State ano lccel governments and geographical regions, l
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F public heelsh and' safety,,or the' environment;,nor does it represent
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substantial costs to licensees, the hRC,'or other Federal agencies.. This-i constitutes the regulatory analysis for this rule..
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Reculatory flexibility Certification.
-This final rule does not have a'significant economic-impact upon a substantial
. number of small entities. The amendments n.cdify the Commission's. rules of
' practice ana; procedure. Most entities seeking or hciding construction permits or Commission licenses that would be subject'to the revised provisions would not fall within the definition cf small businesses found in section 34 of the-Small Pusiness Act. 35 ll.S.C. 632, in the Snill Business Size Standards set out ir. regulatiers issued by the Small Business Administration at'13 CFR Part
'121, or in the NRC's size standords published December. 9, 1985 (50 FR 50241).
~Althcugh interveners subject to the provisions likely wou_ld fall'within the pertinent Strell Business Act defir.ition, the impact on interveners or potentiel it.tervenors will be neutrui. While interveners cr potential interveners will have to freet a higher threshold to gain admission to NRC' proceedings and, thereby incur scn.e additional economic cost a in preparing requests for hearing or requests to intervene, thcse costs shoulc be offset by a reduction in interveners' costs once the hearing commences because information developed to support admission to the proceeding will be used during the conduct of the proceeding.
Thus, in accordance with the
~ Regulatory Flexibility Act, 5 (I.S.C. 605(b), the NRC hereby certifies that a
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tt:is rule aces rci have e significant. economic l impact upon'a substantial rurber of srcli' entities.
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L baci'it Ar,alysis This.firal rule coes not mocity er add to syston.s, structures, components, or design of'a fici M ty; tPC cesigt. 6pproval or Manufacturing license for a facility; cr the'procederes or organization required to design, construct, or
.crerate:c ftcliity..l Accordingly, no backtit'enelysis pursuant to:30 CFR' 50.109(c) is ' reccired for this final rule.
[itt-of Subjects
- Acministrativt practice anc precedure, Antitrust, Byproduct F.etu1al, Clessifico inf'orr.etion, Environmental protection, Nuclear niaterials, Nuclear
. power plants and reactors, Pcr.alty, Sex discrimination, Source material, Special ruclear raterial, Weste treatment and disposal.
For.the reasci.s set out in the prear.ble ano under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, ana 5 U.S.C. 553, the Nuclear Regulatory Comission is adopting the following arrendtrents to 10 CFR Part 2.
PAPT'2--RULES OF PRACTICE FOR DOMESTIC LICEhSING PROCEED]IlG5
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- 1. The bothority citaticn for Part 2_ continues:to read as follows:
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! AUTHORITY: Sees. 161, 181, 68 Stat. 948, 953, as amended (42 U.S.C.-
2201, 2231); sec.191, as annded, Pub. L.87-615, 76 St.at. 409 (42 U.S.C.
2241);'sec.201,88-Stat.1242,asamended(42U.S.C.5841);5U.S.C.552.
Section 2.101 als6 issued under secs. 53, 62, 63, 81, 103, 104, 105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, asamended(42U.S.C.2073,2092, 2095,2111,2133~,.2134,2135);sec.102, Pub.L.91-190,83 Stat.853,as amended (42 l'.S.C. 433F); 'sec. 301, 88 Stat.1240 (42 U.S.C. 5871). Sections 2.102, 2.103, 2.104, 2.105, 2.721. elso issued under secs. 102, 103, 104, 105
'183, 189, 68 Stet. 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 Stet. 2073.(42 f S.C. 2239). Sections 2.200-2.206 alsc issued under secs. 186, 234, 68 Stet. 955, 03 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 issued uncer sec.102, Pub.L.91-190,83Stut.853,asamended(42U.S.C.4332). Sections 2.700s, 2.719.elso issued under S U.S.C. 554. Sections 2.754, 2.760, 2.770, 2.780 elso issued under 5 U.S.C. 557. Section 2.764 and Table 1A of Appendix C also issued under secs. 135,141, Pub.L.97-425,96 Stat.2232,2241(42 U.S.C.10155,10161). Section 2.790 also issued under sec. 103, 68 Stat. 936, c5 amended (42 U.S.C. 2133) and 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; es emendec (42 U.S.C. 2039). Subpart K also issued under sec. 109, 68 Stat. 955 (42 U.S.C. 2239); sec. 134, Pub. L.
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c' t2E, 90 Stet. M 30 (4? U.S.C. 10154). Subpart l'also issued under.sec.
IEf,-(E Stat. 9EE (42 U.S.C. ??30). Appendix'A also issccd under sec. 6, Pub.'
- L..M-EEt,84 Stet.:1472(4?U.S.C.2135). Appendix B also issued under sec.
10, Pub. L.99-240,:90 Stat.1842 '-(42 U.S.C. 2021b et seq.).
- 2. :Ir ! 2.714, puregreths- (c) through (h) are _ redesignated as paragraphs'(f) through (11.
In paragraphs -(e) er.c (g) of 6 2.714, the words " paragraph (d) cf thit.section' whic! crrecrinthefourthsentenceofparagraph.(a)(1),in-the singic ser.tence in pcr69raph (a)(2) and in the single sentence in paragraph-(g) ere rcvised to reac paragraph (d)(1) of this secticn."
Pare 5r6phs (b), (c), er,d (d) ci 6 2.714 are also revised and a new paragraph
_(e). is edded tc reac' ts iolicu:
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L714 In terve r. tion..
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'(b)(1) Not later than fifteen (15) days prior to the holding of the special prehearing conference pursuant to ! 2.751a, or if no special prehearing conference is helc, fif tten (15) days prior to the holding of the first prehearing conference, the petitioner shall file a supplement to his cr her
- petitic>n to intervene that must include a list of the contentions which
- petitioner seeks to have litigeted in the hearing. A petitioner who fails to file a supplement thet setisfies the requirements of paragraph (b)(2) of this section with respect to at least one contention will not be permitted to participate as a pbrty. Acditionel time for filing the supplement n.ay be
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' ' I' granted based upon a balancing of the factors in paragraph (a)(1) of this l
sec tior..
(2) Each contention must consist of a specific statement of the issue of law cr fact to td. raised or controverted.
In addition, the petitioner shall provide the following information with respect to each t.cntention:
(1) A brief explar,6 tion of the beses of the contention.
(ii) A concise staterient of the alleged facts or expcrt opinion which support the contention ard cn which the petitioner intends to rely in proving the contention at the hetring, together with references to those specific scurces and documents of which the petitioner is aware and on which the petitiorer intends tc rely to establish those facts or expert opinion.
l (iii)Sufficientinformation(whichmayincludeinformationpursuantto paragraphs (b)(?)(1) and (ii) of this section) to show that a genuine oispute exists with the applicant en 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 safety report) that the petitioner disputes and the supporting reasons for each oispute, or, if the petitioner believes that the application fails to centain infonnation on a relevant matter as rt. quired by law, the identification of each failure and the supporting reasons for the petitioner's belief. On issues arising under the National Environtrental Policy Act, the petitioner shall file contentions based on the applicant's environmental report. The petitioner can amend those contentions ~ file new contentions if there are data or conclusions in the NRC draft or final crivironrnental irnpact stotement, environmentti assessment,
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'or.an EL;rlertrtt! releting thereto, thet 'dif f er significantly from the dat6 or cerclusiors ir. the applicart's docurer.t.
(c)-fry party te e proceedir5 rey file an answer to a petition for leave to intervere or e sur;1en,ent thereto within ter. (10) days after service of the rrtition or sup;1erert, with particulcr attention to the f actors ' set' forth in parapresh (c)(*.? c f this sectier.. The staff may file such an answer within
'if teer (If) deys ef tri service of the petition or supplement.-
(d) The Corrittler., the presidirt efficer, or the Atomic Safety and Licensing Ecerd designateo to rule tr petitions to intervere and/or recuests for hearing shell pErrit irterVCf.tiore, in any hearing on ar. EppliC6 tion for a licCr.se to receive ar.d possess high-level rcticactive waste at a geologic repository
.creratior:5 trea, by the State in vbich such area is located and by any difelted Jrdian Trit'e 6s cefir.cd in Part 60 of this chapter.
In all other circumstances, ELch ruling bcdy or officer shall, in ruling on--
(1) I petition for leave tc intervene or a request for a hearing, consioer the followine factors, among other things:
(1) The nature of the pctitioner's right under the Act to be made a party to the proceeding.
(ii) The nature ar.d extent of the petitioner's property, financial, or other interest in the proceeding.
(iii) The possible effect of any order that sty be entered in the proceeaing cr. the petitiortr's interest.
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(r) The admissibility cf a contention, refuse to admit a contention if:
(i) Tr.e contention end supporting raterial fail to satisfy the requirements-
-of paragraph (b)(2) of this section; or (ii):The contention, if proven, would be of no conseque r.e in the
. proceeding because it would.not entitle petitioner to' relief..
'(c)21f the Comission or the presiding officer detemines.that any 'of the
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. admitted contentions constitute pure issues of law, those contentions must be.
decided on the basis of briefs or oral argument 'according to a scherfule determined by the Cctmission or presioing officer.
3.
In $2.740, paragraph (b)(1) is revised and a new paragraph (b)(3) is added to read as folicvs:
(b)(1)
I,n, general.
Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the proceeding, 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 inatter. k'here any
' book, document or other tr'.gible thing sought is reasonably available from another source, such as from the Commission's Public Document Room or local Public Document Room, a suf ficient response to an interrogatory involving such
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o r..ittriels wculc be the lccction, the title and a rege reference to the reiever.t bcck, docurer.t or tangible thing.
In-c proceeding on an application 1
L for c-constructicr. fermit cr 60 cperating license for a production or utilitetier fccility, oiscovery shall begin only after the preheering 1
ccr.ferer.ce provided fct in E2.7526 ard shall relate only to those matters in controversy v.hich hetc been.identifico by the Commission or the presiding officcr it, the prehetring order entered at the conclusien of that prehearing ccr.ference.
Je such a proteccing, no discovery shcIl be had after the tecinrirr c' the prehttring conference held pursuant to 52.752 except upon it6ve of the presidit; cf;1cer upon good cause shchn.
It is not ground for objectic s. that.tte ir.f orn.hticr, sought. will be inaan.issible at the hearing 1f the inferratiot scLght eppcers reascrably calculated to lead tc the oiscovery of edrissible evidence.
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(b)(3) Vtile interrecctories rey seek to elicit factual information reesonably related tc a party's position in the proceeding, including date used, essumptior.s made, ard analyses performed by the party, such interrogatories may net be adoressed to, or be construed to require:
(A)
LEtsons for not using alterfictive data, assumptions, and analyses where the alternative date, cssun.ptions, and analyses were not relied on in developing the party's position; or (B) Performance of additional research or analytical work beyond that khich is necceo to support the party's position on any perticular nitter, eu nd
- 4. Ir. E l.743, paragraphs (e) and (b) are revised to read as follows:
?.743 Evidence.
[a); General. Every party to a proceeding shall have'the right to present such oral. or documentary evidence and _ rebuttal evidence and to conduct, in accordance with er. cpprovea crcss-examination plan that contains the intorn.htion specifice in paragraph (b)(2) of this section if so directed by the presiding cfficer, such cross-cycmination as may be requireo for full and true disclestre of the facts.
(b)(1)Testircryandcrocs-examination. The parties shall submit direct testimony of 41trrsses in written form, unless otherwise oroered by the presiding officer en the basis of objections presented.
In any proceeding in which advance vritten testimc9y is to he used, each party shall serve copics of its preposed written testimony on each other party at least fifteen (15) days in acvance of the session of the hearing at which its testimony is to be presented. The presiding officer may permit the introduction cf written testimony not so served, either with the consent of all parties present or after they have had a. reasonable opportunity to examine it. kritten testimony nust be incorporate 61r.to the transcript of the record as if read or, in the discretion of the presiding officer, may be offerea and admitted in evidence as an exhibit.
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.T Tr,e' presicir4 of ficer rey recuire a party seeking an opportunity tc crcss-exarine te reevu1. per!.ission to do so ir, accordance with a schedule estcblishtc by the p'/esidir.g otticer. A request to conouct cross-examination shell be accompeni.*'.: ty a cross-emination plan that:contains the following ir.f ortetion:
(i) A brief cu.ctlpticr. cf the issue cr issues on which cross-examination will be cer. ducted; (ii) Tre ptjectne to be schievet by cross-examination; and (iii) The prcgsec lir.c cf cuestions that may logicelly lead to achieving the object'.ve cf the cress-examination.
The cross-exarinttict. Fler r:ay be subnitteo cr.ly to the presiding officer and e.ust be Lef t by the presicing officer in confidence until issuance of the initici decision en the issue ttirg litigated. The presiding officer hhall thtr provide eccl. cross-exerination plan to the Comission's Secretary for irclusion in the. cfficial recoro of the proceeding.
(2) Paragraphs (b)(1) er.c' (2) of this section do not apply to proceedings ct, der Subpart C cf this pert for rrodification, suspension, or revocation of a license er to proceedings for impcsition of a civil per.alty.
5.
In 5 2.749, paragraph (a) is revised to read as follows:
2.749 Authority of presidir.g of ficer to dispose of certain issues on the pleedines.
(a) Any party to a proceeding may move, with er without supporting afficavits, fcr 6 decision by the presiding officcr in that perty's favor as
to ell cr any part of the metters involved in the proceeding. The moving p6rty shall ent.e> to the motion a separate, short, and ccncise statement of the reterial touts es to which the moving p&rty contends that there is no genuine issue to be heard. fictions acy be filed at ary time. Any cther party nay serve en 6nswer serporting er cpposing the motion, with or withLut efficavits, within twer.ty (20) days after service of the motion. The p6rty shall 6nnex to any ar.swer opposing the motien a separcte, short, and concise statement of the atterici facts es to which it is contended there exists a genuit.c issue to be heard. All r..cterial facts set forth in the statenent required to be servec by the moving party will be deemed to be admittec unless centrovertec Ly the steterent required to be served by the opposing party.
The cppesing perty may, within tor. (10) cE)s rf ter service, respond in writing to r.tv facts and arguments presented in any staten. cot filed in support of thc motion. No further ELpportine stetements er responses thereto may te entertcired. The presioing 01ficer rey dismiss suramarily cr hold in ebeyance r.ctions filed shcrtly before the heering commences or durinD the hearing if the other phrties or the presiding officer would bc required to divert substantial resources from the hetring in orcer to respond soequately to the votion 6no thcreby extend the proceeding.
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't l'.!!/. ;trsprert (c) is revised to reed as follows:
!!.7E4 FrepcLee 11ncires end conclusions.
(c' f rcrcsed fin u45 e' fcct must be clecrly and concisely set forth in nut.iert d rcreprerts er.c mL>t be ccr. fined tc the materiel issues of fact presorted or tt( recurc, witt exact citttiLns to the transcript of recoro and cybilitt in sL;;crt of eact prcposeo finding.
Proposed concitsions of law rust be set torth ir. rurbered partp ephs 6s to all meteriel issues of law or cis creticri presentec on it'e record. An interver.cr's preposed findings of fact ci.o cor.clusions of ini r..ust be cctfined to isstes which thet party plecec in c entrovers,s cr sought it piece in controversy in the proceeding.
In 12.7C2, parecraft (c) 15 revised to read as follows:
62.702 frr.tt1s to the Cotnissicn from initill, dtcisions.
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(c) brief Content.
A brief in excess of ten (10) pages must contein a table of contents, witt. page references, and e teble of cases (alphabetichily arrarred), statutts, re guleticns, and other suthoritics citeo, neith references in ti.t pages of the brief white they are cited.
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-[ l i (1) An appellant's brief must clearly identify the errors of fact or law thi.t nre the subjcct..of the appeal. An intervenor-appellant's brief must be confined to issues khich the intervenor-eppellant placed in' controversy or-sought to piece in controversy in the proceeding.
For each issue apperled.
the precise portion of the record reiteo upon in support of the assertion of errer must also be' provided.
M) Each responsive brief cust contain a reference to the precise portion of-the retorc Wilch suppcrts each factual assertion made.
Dated at Rockville,_ Maryland, this day of 1939.
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For the Nuclear Regulatory Corar.ission.
Samuel J. Chilk, Secretary of the Comission.
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