ML20248C807

Subpart L of Procedural Rules.* Forwards Applicable Procedural Rules & Statements of Consideration for Informal Hearing to Help Understand Background of Subpart L.Related Correspondence

ML20248C807
Person / Time
Site:	07000025
Issue date:	08/23/1989
From:	Bloch P Atomic Safety and Licensing Board Panel
To:	Lit E, Raskins J, Jeffrey Scott AFFILIATION NOT ASSIGNED
References
CON-#489-9224 ML, NUDOCS 8910040018
Download: ML20248C807 (13)

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UNITED STATES t

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NUCLEAR REGULATORY COMMISSION CCCTD ik f E-ATOMf0 SAFETY AND LICENSING BOARD PANEL Y"

l' Y, 9 @T WASHINGTON. D.C. 20555 1

'89 SEF 26 P3 54 August 23, 1989 MEMORANDUM FOR:

Jon Scott 6 Roundup Road Bell Canyon, CA 91307 Estelle Lit 18233 Bermuda Street Northridge, CA 91326 Jerome E. Raskins 18350 Los Alimos Street Northrid CA 91326 Peter l..Bloch,AdministrativeJudge W

FROM:

Atomic Safety and Licensing Board Panel

SUBJECT:

SUBPART L OF OUR PROCEDURAL RULES l

I am enclosing for your convenience a copy of the applicable procedural rules, Subpart L.

I am also enclosing the " Statements of Consideration", which nay help you to understand the background of Subpart L.

If there is ambiguity in Subpart L, you may use the Statements of Consideration as an aid in interpretation. Consideration which covers Informal Hearing Procedures for Materials Licensing Adjudications, and Subpart L.

l' l

Enclosures:

l As stated l

l cc:

R. T. Lancet, Director l

Nuclear Safety and Licensing l

Rockwell International Corporation 6633 Canoga Avenue Canoga Park, California

91304, w/ copy encl.

bcc: Office of the Secretary, w/ copy of encls.

Note:

Express Mailed to Addressee and cc 8/24/89, 10:35 AM.

8910040018 890823 PDR ADOCK 070 5

c 7@v t

u

d, IN PART 2 RULES OF PRACTICE FOR DOMESTIC LICENSING PR 4

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' considered.

(b) Documents are filed with the (c) A person other than an app!icant (d) The provisions of paragraph (c) of Office of the Secretaryin adjudications sha I file a request for a heanng this section shall a respect to hcenses.pply only with subject to this subpart either-

• b authorizations.or amendments to licenses or (1)By delivery to the Docketing and (1) Th rty (30) days of the agency's Service Branch of the Office of the publication of the initial Federal authonzations applied for under the Secretary at One White Flint North, Register notice referring or relating to an Atomic Energy Act of1954, as amended.

11555 Rockville Pike Rockville, MD application or the licensing action f3 before December 31.2005.

.t 20852:or requested by an application, which must 4

(e) Unless the presiding officer (2) By mail or telegram addressed to include a reference to the opportunity k disposes of allissues etd dismisses the the Secretary. U.S. Nuclear Regulatory for a hearing under the procedures set

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I proceeding, appeala from *he pmsiding Commission. Washington, DC 20555, forth in this subpart; or

? officer's order disposing of issues and Attention: Docketing and Service (2)If a Federal Register notice is not I designating one or more issues for published in accordance with paragraph Branch.

1 2 E nsolutionin an adjudicatory bearing areFiling by mail or telegram is complete (c)(t). the earlier of-interlocutory and must await the end of as of the time of deposit in t (i) Thirty (30) days after the requestor the proceeding.

with the telegraph company.he mail orreceives actualnotice of a pending Filing by m of other secnoaa.

other means is complete as of the time application or en ages.cy action granting i 2.1117 %

r an application: or in proceedings subject to this subpart.

of delivery to the Docketing and Service the provisions of Subparts A and C of to Branch of the Office of the Secretary.

(ii) One hundred and eighty (180) days )

CFR Part 2 are also applicable. cxcept (c) Each document submitted for Gling after agency action grantmg an

'FP g4 The$ quest for a heanng filed b where inconsistent with the provisions anydiudicati sub ctt sa of tMs subpart" person other than an applicant must typed, must bear the docket number and desenbe in detail-m the title of the proceeding, and. ifit is (1) The interest of the requestor in the Subpart L-Intormal Hearing the first document filed by that proceeding:

Procedures for Adjudications in participant, must designate the name (2)How that interest may be affected

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Matertata Ucensing Proceedings and address of a person upon whom p the results of the proceeding.

service can be made. The document alsoincluding the reasons why the requestor l

!2.1201 Scope of subpart.

must be signed in accordance with should be permitted a hearing with l

The generalrules in this subpart correspondence, must be filed in an in p ra

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f se io I 2.700(c). A document, other than govern procedure in any adjudication h D cuments filed by telegram areonginal and two conforming cop k abou)t the licensing activity that is j

imt ated by a request for a hearingin a proceeding for the grant, transfer, E fa a toverned by i 2.708(f). A document that

• subjecunatterof the proceeding:and renewal, or licensee initiated E

conf nn to thue nquinments 6 (4) The circumstances establishing amendment of a materiallicense subject may be refused acceptance for filing and 3 accordance with to Parts 30,32 through 35,39,40. or 70 of may be returned with anindication of thf a chapter. Any adjudication regardinghueas n orn unacceptance. Any s

section.

a materials license subject to Parts 30 document tendered but not accepted for (e)Each request for a hearing rsat be 32 through 35,39,40, or 70 that is initiated by a notice of hearing issued filing may not be entered in the docket.

served, by delivering it personally or by mail to -

under i 231. a notice of proposed (d) Computation of time and extension action under i 2.105, or a request for and reduction of time limits is done in (1) The applicant (un!cas the requestor is the applicant): snd heanng under Subpart B of to CFR Part accordance with Il 2.7142.711.

(2)The NRC staff. by delivery to the 2 on an order to show cause, an order (e) A request for a hearing or a Executive Director for Operations. One 4

for modification of license, or a civil petition for leave to 1.ttervene must be White Flint North.11555 Rockville Pike.

@ penalty,is to be conducted in served in accordance with 6 2.712 and accordance with the procedures set i 2.1205(e). (j). All other documents Rockville, MD 20a52, or by mail e

E forth in Subpart G of10 CFR Part 2.

issued by the presiding officer, the addressed to the Executive Director for; ;

OperCons. U.S. Nuclear Regulatory 4

g Atomic Safety and Licensing Appeal 1 2.1203 Docket; titing: servk*-

Board, or the Commission or offered for Comrrassion Washington, DC 20555.

request for a heann)g filed under(f)V

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(a) The Secretary shall maintain a filing are served in accordance with l -

docket for each adjudication subject to i 2.712.

g paragraph (c) of this section, the this subpart. commencing with the filin i11205 Request for a hearing; petition applicant may file an answer. The NRC I

of a request for a heanng. Allpapers, g foH*m to intmene.

staff. Ifit chooses or is ordered to including any request for a heanng, l

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petition for less e to intervene, (a) Any person whose interest may be participate as a party in accordance with 6 2.1213. may file an answer to a correspondence. exhibits, decisions, and affected by a proceeding for the grant.

request for a hearing within ten 10) orders. submitted or issued in the transfer. renewal, or licensee.initia ted days of the designation of the pr(esiding proceeding: the heanna file compiled in smendment of a heense subject to this officer.

accordance with $ 2.1231: and the subpart may file e request for a beanng.

(g)ln ruling on a request for a hearing

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transcnpts of any oral presentations or (b) An applicant for a license. a filed under paragraph (c)of this section.

oral questioning made in accordance license amendment a license transfer, the presiding officer shall determine that

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with 5 2.1235 or in connection with any or a license renewa,l who is issued a the specified areas of concern are l

appeal under this subpart must be filed notice of proposed denist or a notice of germane t the subject matter of the with the Office of the Secretary and demal and who desires a hearing shall pr ceedmg and that the petttien is must be included in the docket.The file the request for the heanng within public availability of official records the time specified in i 2.103 in all cases.

timely. The presidmg officer also shall "9"""'"'

relating to the proceeding is governed by i 2.700.

April 28,1989 (reset) 26

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PART2 RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEDINGS 2.1209(

2'1205(g) judicial standards for standing and shall matters set forth in paragraph (g) of this i 2.1207 Designation of prestatng otticer.

consider. among other factors-6ection.

(1)The nature of the requestor's right (4)lf the petition is granted, the (a) Unless otherwise ordered by the.

under the Act to be made a party to the petitioner becomes a party to the Commission or as provided in paragraph proceedmg.

(b) of this section, within ten (10) days proceeding:

of receiving from the Office of the (2) The nature and extent of the (k)(1) A request fc7 a hearing or a Secretary a request for a heanng requestor's property, financial, or other petition for leave to it.tervene found by relating to a licensmg proceeding interest in the proceeding: and the presiding officer to be untimely covered by this subpart, the Chaittaun (3) The possible effect of any order under paragraph (c or (j) will be that may be entered in the proceeding entertained only up)on determination by of the Atomic Safety and ucensmg Board Panel shallissue an order upon the requestor's interest.

the Commission or the presiding officer designatmg a single member of the (h)If a beanng request filed under that the requestor or petitioner has paragraph (b) of this section is granted, established that-panel to rule on the request for a hearing.

end. if necessary.to serve as the g

the applicant and the NRC staff shall be (t)The delay in filing the request for a presiding ceficer to conduct the hearmg.

parties to the proceeding. If a hearing hearmg or the petition forleave to (b) For any rea';est for hearing l

request filed under paragraph (c) of this intervene was excusable: and relating to an ap:licatinn under to CFR section is granted. the requestor shall be (ii)The grant of the request for a Part 70 to receive and store unitradiated

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a party to the proceedmg along with the hearing or the petition for leave to fuel at the site of a production or applicant and the NRC staff.11 the staff intervene will not result in undue utilization facility that also is the subject chooses or is ordered to participate as a party in accordance with 12.1213.

prejudice or undue injury to any other of a proceeding under Subpart C of this

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(i)If a request for a heanng is granted participant in the proceeding. including Pa t for the issuance of an operating the applicant and the NRC staff,if the license, within ten (10) days of recening and a notice of the kind desenbed in staff chooses oris ordered to participate from the Office of the Secretary a paragraph (c)(1) previously has not been as a party in accordance with 6 2.1213.

request for a hearing the Chairman of published in the Federal Register, a (2)l! the request for a heanng on the the /Gomic Safety and ucensing Board notice of hearing must be publishedin petition for lesve to intervene is found Panel shallissue an order designatmg a the Federal Register stating to be untimely and the requestor or duct gt e (1)The time. place and nature of the petitioner fails to establish that it p,rl e

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hearmg; otherwise should be entertained under the request for a heanng and,if (2)The autLority under which the heanng is to be held; paragraph (k)(1) of this section, the necessary, to conduct the heanng in request or petition will be treated as a accordance with this Subpart. Upon (3)The matters of fact and law to be petition under i 2.200 and referred for certification to the Commission by the considered; appropriate disposition.

ucensing Board designated to conduct (4) The time within which any other (1) The filing or granting of a request the hearing that the matters presented person whose interest may be a!!ected for a hearing or petition for leave to for adjudication by the parties with by the proceedmg may petition for leave mtervene need not delay NRC staff respect to the Part 70 application are

} g (to intervene.as specified in paragraph g action regarding an application for a substantially the same as those being h heard in the pending proceeding unde f of this section:and E )(5)The titr.e within which a regi.st to licensing action covered by this subpart.

E [m) An order granting a request for a cc 10 CFR Part 50. the Ucensing Board may

' conduct the hearingin accordance with g participate under i 2.1211(b) must be 3 heanng or a petition forleave to I

filed.

Intervene may condition or limit the procedures in Subpart C.

(j) Any petition forleave to intervene must be filed within thirty (30) days of participation in the interest of avoiding i 2.1209 Power of presiding otticer.

repetitive factual presentations and the date of publication of the notice of argument.

A presiding officer has the duty to hearing.The petition must set forth the (n)If the presiding officer denies a conduct a fair and impartial hearmg information required under paragraph request for a hearmg or a petition for according to law to take appropriate (d)of this section, leave to intervene in its entirety, the action to avoid delay, and to maintain (1) A petition for leave to intervene action is appealable within ten (10) days order.The presiding officer has all 4

must be served upon the applicant. The of service of the order on the question powers necessary to those ends.

petition also must be served upon the whether the request for a hearing or the including the power to-NRC staff-petition for leave to intervene should (a) Regulate the course of the heanng (i) By delivery to the Executive have been granted in whole or in part. If and the conduct of the participants:

Director for Operations. One White Flint (b) Dispose of procedural requests or 1:

North.11555 Rockville Pike. Rockville, a request for a hearms or a petition for similar matters:

MD 20852; or leave to intervene is granted, parties (c) Hold conferences before or during other than the requestor or petitioner the hearing for settlement, simplification (ii) By mail addressed io the Executive

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Director for Operations. U.S. Nuclear may appeal that action within ten (10) of the issues, or any other proper days of service of the order on the Regulatory Commission. Washington, question whether the request for a (d) Certify questions to the Atomic purpose:

i DC 20555, hearing or the petition for leave to 5

(2) Within ten (10) days of service of a intervene should have been denied in its Safety and utensmg Appeal Board for petition for leave to intervene, the determination eitherin the presiding

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applicant and the NRC staff,if the staff entirety. An appeal may be taken by officer's discretion or on direction of the filing and servtng upon all parties a Commission or the Atomic Safety and 7

chooses or is ordered to participate as a statement that succmetly sets out with Ucensing AppealBoard;

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party in accordance with I 2.1213. may supportmg argument, the errors alleged.

(e) Reopen a closed record for the file an answer.

The appesi may be supported or (3) *nereafter, the petition for leave to opposed by any party by filing a reception of further information at any time prior to initial decision in intervene must be ruled upon by the counter. statement within fifteen (15) accordance with 1233t

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presiding officer, taking into a ecount the days of the service of the appeal brief.

(f) Admmister oaths and affirmations; t

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A 2-61 April 23,1989 (reset)

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PART2 RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEDING (8) Issue mitial decisions (h)!ssue subpoenas requ; ring the officer whether or not the staff desires the file. lf an established local public i

to participate as a party to the attendance and testimony of witnesses adjudication. In addition upon a document room does not exist the NRC at the hearmg or the production of documents for the hearing:

determmation by the presiding officer staff will arrange for the documents (i) Receive wntten or oral evidence that the resolution of any issue in the contained in the heartng file, along with any other materisi docketed in and tak e official notice of any fact in proceeding would be agled materially accordance with 6 2.1203. to be made accordance with ! i?43(i);

by staffs participation in the proceeding available for public inspection and (i) Appomt specialcasistants from the as a party, the presiding officer may Atomic Safety and 1.lca nsing Board offer or permit the NRC staff to copying during the course of the panelin accordance with 123:2; participate as a party with respect to adjudication in a library or other facility (k) Recommend to t!'e Commission that particular issue.

that is accessible to the general public during regular business hours and is in that procedures other tan those i 2.1215 Appearance and practice.

the vicinity of the pnncipallocation authorized under thb subpart be used in (a) An ir.dividual may appear in an where the nuclear material that is the a particular proceeding; and adjudication under this subpart on his or subject of the proceeding will be (1) Take any other action consistent her own behalf or by an attorney-a t-law.

possessed.

with the Act and this chapter.

Representation by an attorney.at-law is (2) The hearing file also must be made i 2.1211 ParucipatAon by a person not a not necessary in order for an available for public inn ecuon and party.

organization or a i 2.1211(b) participant copying during regular usiness hours at (a) The presiding officer may permit a to appear in an adjudication conducted the NRC Public Document Room in Washington. DC.

person who is not a party to make a under this subpart. If the representative limited appearance m order to state his of an organization is not an attorney.at-(b) The heanng file will consist of the or her views on the issues. Limited law. he or she shall be a member or application and any amendment thereto.

appearances may be in writing or oral.

officer of the organization represented.

any NRC environmentalimpact at the discretion of the presiding officer, Upon request of the presiding officer, an statement or assessment relating to the and are governed by rules adopted by individual acting as a representative application, and any NRC report and the preending officer. A limited shall provide appropnate information any correspondence between the appearance statement is not to be establishing the basis of his or her applicant and the NRC that is relevant considered part of the decisional record authonty to act in a representational to the application.Heanns file under i 2.1251(c).

capacity, doctiments already in an established (b) Within thirty days of an order (b) Any action to repnmand. censure..

local public document room or the NRC Public Document Room when the grantmg a request for a heanng made or suspend a party, a i 2.1211(b) hearing request is granted may be under i 2.1205(b)-(c) or. in instances participarc. or the representative of a incorporated into the hearing file at when it is published. within thirty days party or a i 2.1211(b) participant must those locations by a reference indicating of a notice of heanng issued under be in accordance wid L precema u.

i 2.1205(i), the representative of an i 2J13(c),

where at those locations the documenta can be found. *Ihe presiding officer shall interested State. county, municipality, or Haaring' rule upon anyissue regarding the an agency thereof. may request an appropriate materials for the heanns opportunity to participate in a i 2.1231 Hearing file; proNbition on fue.

E proceedmg under this subpart.The cc escovery.

E (c.) The NRC staff has a continuing 5 request for an opportunity to par:icipate 3 (a) Within thir must state with reasonable specificity presiding officer.ty (30) days of the g duty to keep the hearing fPe up to date a entry of an order

, with respect to the materials set forth in the requestor's areas of concern about "8

paragraph (b) of this section and to the licensmg activity that is the subject tjsk4N dob8 the provide those materials for the docket, b

matter of the proceeding. Upon receipt present to the presiding officer, a'nd the presiding officer, and the applicant of a request that is filed in accordance make available to the applicant and any or any party or i 2.1211(b) participant in with these time limits and that specifies other party to the proceeding a hearmg a manner consistent with the way the the requestor's areas of concern, the e a p liio ij,th n en 10]da s hearing file was made available initially presiding officer shall afford the d

under paragraph (s).

representative a reasonable opportunity or a request to Partici ate under (d) A party or i 2.1211(b) participant P

to make wntten and oral presentations i 2.12n{b)is granted the NRC staff may not seek discovery from any other in accordance with Ii 2.1233 and 2.1235.

shall make the hearing file availab!e to party. I 2.1211(b) participant, or the NRC without regmrmg the representative to the petitioner or the i 2.1211(b) or its personnel, whether by document take a position with respect to the participant.

production, deposition. interrogatories, issues. Participants under this (1) The heanng file must be made or otherwise.

subsection may notice an appeal of an avadaWe to the apphcant and any other

$2.1233 Wrttten presentat ons; wrmen initial decision in accordance with party or l 2.1211(b) participant to the questions.

l t 2.1253 with respect to anyissue on proceeding either by-I which they participate.

(i) Service m accordance with (a) After publication of a notice of i 2.1203(e); or hearing in accordance with I 2.1205(i) 5 2.1213 Rois of the NRC staff.

if a hearing request is filed under (ii) placing the fde in an established and after the NRC staff has made the i 2.1205(b), the NRC staff shall be a local public document room in the heanng file avadable in accordance y

vicinity of the pnnc:pallocation where with 12.1231 the parties and i 2.1211(b) party to the proceeding. If a hearing nuclear matenal that is the subject of a participants shall be afforded the i

request is filed under i 2.1205(c). within proceeding under this subpart will be opportunity to submit, under oath or ten (10) days of the designation of a affirmation. written presentations of presiding officer pursuant to i 2.1207 the possessed, and informing the applicant, their arguments and documentary data.

3 party, or i 2.12n(b) participant in NRC staff shall notify.the presiding wnting of its action and the location of informational matenal. and other 1-supporting wntten evidence at the time l

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April 28,1989 (reset) 2-62

nh 3(a) PART2 RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEDINGS 2.125 3 [tEnes and in the sequence the oral presentations by any party or has been made. he or she shall certify g

iding officer establishes by 9 2.1211(b) participant, including directly to the Commission itself for repriate order.The presiding officer testimony by witnesses. Oral determmation the matter of whether

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may, on his or her initiative, submit presentations are subject to any,

special circumstances support a waiver

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g erritten questions to the parties to be appropriate time limits the presiding or an exception and whether a waiver or kanswered in writing, under oath or officer imposes. Responsibihty for the an exception should be granted.The

{aHirmation, and supported by conduct of the exammation of any Commission a determmation shall be hpropriate documentary data, witness rests with the presiding officer made after any further proceeding the r

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ermational material, or other wntten who may allow a party or i 2.1211(b)

Commission deems appropriate.

evidence.

participant to propose questions for the i 2.1241 Setttement of proceedings.

& (b)in a hearing initiated under presiding officer to pose a witness.

3 The fair and reasonable settleme:,t of I 2.1205(b). the initial written (b) Oral presentations and responses

, presentation of the applicant that is to oral questioning to be relief upon as proceedings subject to this subpart is er couraged. A settlement must be sissued a notice of proposed denial or a oral evidence must be given under oath

. notice of denial must describe in detatl or affirmation. All oral presentations or approved by the presiding officer or any deficiency or omission in the oral questioning must be Atomic Safety and Licensing Appeal l<

s Board, as appropriate,in order to be agency's demal or proposed denial of its stenographically reported and. except as binding in the proceeding.

application and what reliefis sought requested pursuant to section 181 of the with respect to each deficiency or Act. must be public unless otherwise Initial Decision. Commission Review.

omission.

ordered by the Commission.

And final Decision i

t under

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(c) Strict rules of evidence do not i2.1251 inttist decision and us offect.

presentation of a party that requested a apply to oral submissions under this (a) Unless the Commission directs earing or petitioned for leave to section, but the presiding officer may, on that the record be certified to it in intervene must desenbc in detail any m tion or on the presiding officer's own deficiency or omission in the license initiative, stnke any portion of an oral accordance with paragraph (b) of this section, the presiding officer shall application, with references to any presentati n of a response to oral render an imtial decision after particular section or portion of the quesu mng est is gumulauve, completion of an informal hearing under application considered deficient. give a irrelevant, immatenal. or unreliable.

this subpart.That initial decision detailed statement of reasons why any IL1237 Motions; burden of proof.

c nstitutes the finalaction of the

'pirticular section or portion is deficient Commission thirty (30) days after the cr why an omission is material, and (a) M ti ns presentedin the date of issuance, unless an appealis desenbe in detail what relief is sought proceeding must be presented and taken in accordance with i11253.

disposed ofin accordance with 112.730 (b) The Commission may direct that with respect to each deficiency or p I*N83' o,

3l - (d) A party or i 2.1211(b) participant (b)Urdess otherwise ordered by the it without an initial decision and may 2

omission.

4

$ II'd presiding ofhcer certify the record to m

e E inaking an initial written presentation

' presiding officer the applicant or the

' omit an initial decision and prepare a Wunder this section shall submit with its proponent of an order has the burden of E final decision upon a fiding that due and presentation or identify by reference to proof.

timely ex cution of its functions so

' a generally available publication or

$ 2.1239 conalderation of commisalon

]c"y$* initial decision must be in source. such as the hearing file, all rules and regutauons in informal w d:cumentary data, informational adjud canona.

wntmg and must be based only upon tQwterial, or other wntten evidenco upon information in the record or facts 4

ch it relics to support or illustrate (a) Except as provided in paragraph officially noticed.The record must (b) of this section, any regulation of the include allinformation submitted in the y'

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[d Commission issued in its program for proceeding with respect to which all p ined

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Y a dsta.1dorma tionaI ma terial. or other the licensing and regulation of parues have been given reasonable prior written evidence may be submitted or production and utilization facilities, notice and an opportunity to comment.

l erenced by any party, other than the source material, special nuclear The initial decision must includo-C staff, or by any 5 2.1211(b) material, or byproduct material may not (1) Findings. conclusions, and ruhngs'.

s participant in a written presentation or be challenged in any adjudication with the reasons or basis for them. 2n a!!

subject to this subpart.

material issues of f act. law, or discretion stio ody as (b) A party to an adjudication subject presented on the record:

ep din o fi er h o,

to this subpart may petition that the (2) The appropnate ruling. order. or discretion, permits' evidence do not application of a Commission regulation demal of rehef with its effectis e date:

(e) Strict rules of epply to wntten submissions under this specified in paragraph (a) of this secuan and s

8 io b h be waived or an exception made for the (3)The tm, ie with, which appeals to

, m particular proceeding. The sole ground the decision and a brief in support of motion or on the res ficer on I

j initistive. stnke any portion oi a wntten i r a request for waiver or exception those appeals may be filed, the time murt be that special circumstances exist within which briefs in support of or in ula ive, trebe so that application of the regulation to opposition o p als filed b anather uest o t at is c nt imrpaterial* or unreliable

• the subject matter of the proceedirig pany may e

.an en i

would not serve the purposes for which the decissor, becomes final in the 1 2.1235 Orat presentauons; oral the regulation was adopted. in the absence of an appeal.

quesuons.

absence of a pnma facie showing of (d) Matters not put into controversy (a) Upon a determmation that it is special circumstances, the presiding by the parties may not be exammed and nIcessary to create an adequate record officer may not further consider the decided by the presiding of ficer or the for decision. in his or her discretion the matter. lf the presiding officer Atomic Safety and Licensmg Appeal presiding officer may allow or require determines that a pnma facie showmg Board. If the presiding ofhcer or the Appeal!1oard belieses that a serious 2-63 April 28,1989 (reset)

PART2 RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEDINGS safety environmental. or common i 2.1259 Rnel decis6on; petstion for defense and security matter exists that reconedersuon.

has not been placed in controversy, the (a) Commission or Atomic Safety and presidmg officer or the Appeal Board ucensing Appeal Board action to render shall advise the Commission promptly of a final decision must be in accortlance the basis for that view, and the with I 2.770.

Commission may take appropriate (b) The provisions of I 2.771 govern action.

the filing of petitions for (e)Pendmg review and final decision reconsideration.

by the Commission, an initial decision resolving at: issues before the presiding 12.1261 Autnority of the Secretary to rule officer in favor of authonzing licensing on procedural sneners.

action subject to this subpart is The Secretary or the Assistant immediately effective upon issuance Secretary may rule on procedural except-matters relating to proceedings (1) As provided in any order issued in conducted by the Commission itself accordance with 6 2.1283 that stays the under this subpart to the same extent effectiveness of aninitialdecision:or they can do so under i 2.772 for (2) As otherwise provided by the proceedings under Subpart G.

Commission in special circumstances.

(f) Following an initial decision

$ i2.12ss sters of NRC staff Noeria6r.g resolving allissues in favor of the E eesons or of deciekne of a proe6 ding licenstna action as specified in oMC*f. 8" Akm60 8888ty and ucenwng g

paragraph (e) of this section. the Director

,,,i.",f

1. "8 of Nuclear Reactor Regulation or the Director of Nuclear Material Safety and Applications for a stay of any Safeguards, as appropriate, dedsion a medon oMe Commbsion. e notwithstand ng the filing or pendency presiding officer, or an Atomic Safety of an appeal purseant to i2.1253, shall

""d U#*"'t"8 AEP'"iB "#d

1. ""I

"" " I'" "8 "

'I take the appropriate licensing action upon making the appropriate licensing I

I Endings promptly, except as may be are g verned by i 2.788, except that any I

provided pursuant to paragraph (e)(1) or requesdea stay of stahan%

(2) of this section.

8ction pending completion of an adjudication under this subpart must be 12.1253 Appsats froniinitiat dec6siona.

Eled at the time a mquest fw a bearmg parties and i 2.1211(b) participants r petition to intervene is filed or within may appeal from an initial decision "I'

under this subpart in accordance with whichever is later. A request for a stay E

he rocedures set out in 5 6 2 762 and "b y deci ior th a

a a r before which the lice.. sing proceeding is

( 2.1255 Review t>y the Atomic Safety and pending.

Ucensing Appe+1 Board.

The Commission vuthorizes the Atomic Safety and Ucensmg Appe61 i

Board to exercise the authority and j

carry out the review functions to be penormed under ii 2.1205(n). 2.1209(d),

and 11253.

{ 2.1257 Review of docis6on and actions of an Atomic Safety and ucenseg Appeal Board.

The Comnussion willnot entertain any petition for review of a decision or ection of an Atomic Safety and i

Ucensing AppealBoard under this j

subpart. Commission review is available only on the Commission's own motion within forty (40) days after the date of a decision or action by the Appeal Board under i 2.1255. Commission review will be conducted in accordance with those procedures the Commission deems appropriate. Absent Commission review, the decision of the Appeal Board constitutes the final action of the Cummission.

.1 April 28,1989 (reset) 2M inhemmass h u amai...

m

82(A PART 2 STATb.MENTS OF CONSIDERATION uffected by a nuclear matenals hcensmg comments and the Commission's proceeding. Kerr.McGee Corp. (West Chicago Rate Earths Facility). CLI-62-2.

responses to those comments follows.

15 NRC 232 (19821. cff'dsub nom. City af A* O'"*'*I * * * *"

West Chicago r. NRC,701 F.2d 632 (7th Clr.1983) (both hereinafter referred to as 1.11 earing Procedures Are Too formal West Chico;ij. On July 24.1987, the Several commenters who are date for submitting comrsents on the materials licensees or who represent 20 Published 2/28/89 proposed rule was ex' ended to August matenals licensees expressed concern Effective 3/30/89 23.1987 ($2 FR 27821).

that the proposed informal procedures 10 CFR Part 2 As propon'd. b infomi heang were unnecessary r to f rmal. One procedures ddfer substantially from the cornmenter suggested that, given the i

informal Heanng Procedures for Subpart C that govern the conduct of small number of materials licensing j

existing regulations m to CFR Part 2.

i a

rg st eiv'd te Matertate Ucensing Adjud6 cations NRC formal, tnal. type adjudications.

, n oy paat s.ctNCY: Nuclear Reguirory

-specifically, the presiding of!Icer as to the Commission need only contmue its Commission.

receive and to make his or her present practice. That practice, which acTaoN: Final rule.

determmation based solely upon a has been in effect since the first

]

"hearms file" compded by the NRC mformal heanng in the 1982 West 1

suuwaar The Nuclear Regulatory staff, which need not be a pany to the Chicago proceeding, is to issue an order j

Commission is amending its regulations proceeding. and wnnen psentauons in response to each matenals licensmg b provide rules of procedure for the by the parties. T9e would be no hearmg request that establishes the conduct of informal adjudicatory discovery. Onlyif the presidmg officer procedures governmg that informal henemp m materials licensm8 found that the wntten presentauons hearmg. The Commission disagrecs, its proceecmgs. The Atomic Energy Act of were moufficient to create an adequate practice ofissuing mdividual orders has

)

195t requires that the NRC afford an record would oral presentsuons be allowed the agency to gain valuable jnterested person, upon request. a permitted. Any exanunation of those practical expenence ir* conducting heanng."in any proceeding for the making oral presentations would be grantmg suspending revoking,or limited stnctly by the presiding officer.

informal adjudications, expenence that Is reflected in the provisions of this fmal amenomg of an NRC license, including a The type of cross. examination by the rule.no smallnu:pber of heanng bcense myolving source, byproduct. and parties that generally is permitted in requests explains in part the delay in the special nuclest matenals. The formal adjudications would be Commicsion previously has determmed prohibited. Essentially, the informal Commission's promulgation of this final that the 'heanng

• provided for a heanng is designed to elicitinformation rule in thatit has taken longer to gam the relevant experience that has guided matenals licensmg proceeding need not and resolve issues pnmanly through it in formulating appropriate procedures.

encompass all the procedures m NRC int,uiry by e4 presiding ofScer rather llowever. it ultimately is not a sufficient regulations that currently govem mo e than through an adversanal counterweight to the prudent 4

formal adjudications for the hcensmg of confrontation between the parties. As a observation of the United St.ites Court reactor facilities. Rather. the consequence, the presiding officer has of Appeals for the Seventh Circuit in its

-mission has determined that.in broad d3scretion tu controlling the West Chicago decision. 701 F.2d at 645 most instances, an informal heanng with mat. W.* shich the issues raised by that the interests of all concerned in the l

en opportunity to present wntten views the pa.w, are to be explored.

hesnng process are better served if the is sufhcient to fulfdl this requirement.

The fmal rule presenbes the proc.edures fl. Comments and Commission agency formulates regulations that make Responses it clear what procedures will apply to all inst wo dd govern these mformai inimal proceedings. This is

1. "* #U' ne Commission received twelve particularly so given the large number of rFrtcTive caTE: March 30.1989.

letters of comment representing a broad matenals licensmg actions the FOR FURTHe't tWFORMATION CONTACTt spectrum ofinterested persona.

Commission takes eacb year that Puul Bollwerk. Senior Attorney. Office Commenters included pnvate potentially are subject to hCaring I

of the General Counsel. U.S. Nuclear corporanons that hold NRCmatenals requests.

l Regulatory Commission. Washington-licenses. a trade association This commenter also asserted that the DC 20555. Telephone: (301) 492-1t334.

representing companies holding NRC proposed mformal procedures should

{

suPPctrnNTARY INFORMATtoln materials licenses, pnvate coansel that represent NRC reactor and matenais not be adopted because the adjudicatory I~ Back """d licensee 8 public interest groups, a local format is not suited to the resolution of I

On May 29.1987152 FR 2000940096),

governmental entity, and an individual technical questions and, in any vent, the the Nucleat Regulatory Commission member of the public.Seven of the existence of two sets of procedures, one j

published in the federal Register commenters expressed general support for infonnal proceedings and one for proposed amendments to its Rules of for the proposed rules and provided formal proceedings, inevitably will lead Practice (10 CTR Part 2) that would spectfic comments and suggestions on interveners to complain that their specify the ; articular procedures particular provisions. Three commenters allegations require the use of the more apphtahic to mformal adjudicatory opposed the ru!cs as providing extensive formal procedures. Regardmg heanngs.in accordance with section insufficient procedural projections for the issue of the suitability of 189a of the Atom:c Energy Act of1954 intervenmg parties. Two other "adjudica tory" procedures, the

( AEA) (42 U.S.C. 2239(a)) informal commenters opposed the rules as commenter appears to be questiorung l

hearmp are conducted upon the request unnecessanly fonnalizing the beanng the advisability of ustng a trial-type.

cf any persan whose interest may be process for matenals licensing adversary format. as opposed to more I

legislative-type, infermal procedures. to adjudications. A review of the specific resolve technical disputes. In its l

fAarch 31,1989 2-SC-22

%7L PART 2 STATEMENTS OF CONSIDERATION proposed rule. however, the Commission has sought to etnke a necessary balance parties a full and fair hearms. Although that formal heanns procedures are between these two poles. Recogmzmg there is no discovery, the proposed rules apphcable to those adjudications that interested persons within the do provide that the NRC staffis to insututed in response to a notice of meaning of AEA section 189a are create and update a heanngtile proposed action issued under 20 CFR statutonly afforded the status of consistir.g of the materials relevant to L105(a)(7) for "any otherlicense or

" parties" with an opportunity to the licenams proceedmg. including the amendment as to which the Commission application and any amendments to the participate in a heanng.8 the rules allow application, any environmental determmes that an opportunity for a participation though wntten and. in public heanng should be afforded."

limited circumstances. oral submissions assessment or impact statement, and However, as the Commission's West by which a challenged licensing action any NRC report or correspondence Chicago decision makes clear, the notice between the NRC and the apphcant of proposed heanns teferenced in can be supported or opposed.On the relating to the application. in addition. if i 2.105(a)[7) is one that is issued when other hand. cogruzant that these an oral presentauon is found by the the Commnsion has determmed the matenals licensms hearings need not presiding officer to be an appropnate edhere to the Administrative Procedure Act's (ApA) adversary tnal model set nid to fact. finding. the presiding officer public interest reqtures a formal heanng.

West Chicego.15 NRC at 244-46.

fenh in the formal hearing provisions of is given the authonty to pose to Accordingly, the provision correctly 5 U.S.C. 550-557. the Commission has witnesses questions that have been reflects that heanngs commenced in suggested by the parties.This is not the attempted to enhance the role of the type of cross. examination usually response to a notice of proposed action 8.ssued under i 2.105(s)(7) will. in presiding offlect as a technical fact associated with formal adjudicatory accordance with 6 2.700. be conducted finder by giving him or her the pnmary proceedings, as is descnbed in more under the fonnut hearmg procecures of responsibility for controlling the dete'l in the discussion that follows:

Subpan G.

development of the hearing record nonetheless,it still provides the parties beyond the initir.1 submissions of the m the context of this more informal

2. Proposed i 2.1203-Docket. Filing, parnes. Further. the Commission does proceeding with an opportumty to raise and Semce not believe that the mere existence of a quesnons with the presiding officer Section 2.1203 establishes the set of informal procedures willlead to about a witness' testimony.

administra tive requirements for the an erosion of the distinction between formal and informal proceedings or lead B. Comments Relating to Specific docket and the filing and semce of to undue confusion about when the use Pmrisions of theProposedRule documents in each proceeding. One of either type of proceeding is

1. Proposed i 2.1201-Scope of commenter recommended that the rule appropnate.See generallySequoyoh Proceeding set out requirements for documents in fuels Corp. (Sequoyah UF6 to UF4 terms of size, signatures, numbers of Facility). CLI-ao-17. 24 NRC 489 (1906)

One Commenter has raised two copies, etc. A new paragraph (c)

(Commission declines to accept concerns about 12.1201 of the proposed implementa this suggestion.The presiding omcer's suggestion to convert rule whir.h desenbes those matenals provisions of i L711 relating to the informal heanng to formal proceeding).

licensing actions for which informal extension and reduction of time limits hearmgs are provided.This commenter are referenced in paragraph (dl.

2. Hennns Procedures are Too Informal pointed out that in previous instances This commenter also suggested that In contrast to the comments discussed involving a request under to CFR 20.302 this section incorporate the above, severalindividuals and public for egency approval of proposed requirements of 6 2.712 relating to interest groups asserted that the procedures for the disposal of very low.

semcc of documents.The proposed Commission's proposed informal level radioactive weste not covered by 5 2.1203(d), which lesves it up to the procedures were too " informal."In 10 CFR Part et, the Commission has presiding officer m the first instance to particular. these commenters decned the authonzed the use ofinformalbeanng set any rules for semce of documents.

failure of the rules to provide for procedures and suggested this does not was intended to add to the informality discovery or for wide-ranging cross.

appear to be covered by proposed of the proceedings. After further examination by parties to the I 2.1201. Art authonzation under consideration, however, the Commission proceeding.

i 20.302, which is not referred to concludes that establishing rules for Parties generally have no n. ht to specifically in i 2.1201, generally comes routine matters such as document g

discover about as an amendment to an existing semce contnbutes to the efficient heanngs.y even in APA "on the record'*

unless discovery procedures byproduct. source, or special nuclear conduct of the proceeding for both the are authorized by agency regulations.

material license issued under Part 30. 40.

parties and the presiding officer, Further because the Commission is not or 70. As an amendment for Accordingly, the Commission has added record,d to conduct an APA "on the authorization to dispose of materials languste to that paragraph. which is require heanng in a materials licensing held under an existing matenals now designsted as (el. referencmg the case the parties in these cases have no licenses, rather than a request for a requirements of I 2.712.

right to cross-examination under the license to operate a waste disposal 3 Proposed i 2.1205-Request for a Commission's on the record' heanng facility under to CFR Part el.this Nearing: Petition for Lesve to Intervene procedures in 10 CFR Part 2. Subpart C.

authorization clearly falls within Nor does the Commission believe these I 2.1201.The same would be true of This provision. which desenbes how a measures are necessary to afford the various other Part 20 authorizations.

request for a heanng or a petition to wh ch relate to a license issued undeg intervene is to be lodged and treated by j

e nee.v...n interested person ha...tatutory Part 30. 40. or 70. Eg. 20.104s).

the agency, wea the subject of a number risht to twou..i.nd receive e h..rsns on tho..

Accordingly, no specific reference is of comments that are discussed below required in i 2.1201 to Cover these according to subject matter.

tY.."tU.Yo*r.Io*n connN.

authorizations.

c

a. Notice o/motenols licensing

.pp....a io. ss..o..rapiy occain. so can

n. erty This commenter also suggested this octwns/ timing of hearing requests. In enan.t. h.nsins b..nns..

provision in too broad because it states the proposed rule. the Commission 2.SC.23 fAarch 31, !989

l S 2 71 1

PART2 STATEMENTS OFCONSIDERATION desenbed its long-standmg pracute of limiting Federal Register nonce for the matenala licensmg actions through a thousands of matenallicenstng Federal Register notice relating to the IslandLighting Co. (Shoreham Nuclear applications it receives annually to receipt of the application or to NRC Power Station. Unit 1), ALAB-743.18 Na N Pm s4;;tdicaat. For those environmental findings relating to the NRC 387.396 n.37 (1983). On the other applicanons for which no Federal licensmg request (e.g a negattre hand. it is apparent that whether to l

Register notice is published. proposed declaration of the need to prepare an prende for funher admission oflate-i 2.305(c) provided that a heanns environmentalirnpact statement). Also, filed petitions and the terms under petition would be considered umely if those persons'truly interested in a which they wdl be admittsd ultimately i

l particular materials licensee's actmties is a matter committed to the asency's filed within thirty days after the discreuon.

petitioner receives actual nouce of a can keep abreast of pending mat ers by licensmg action or within one year after penodically contacting appropetate NRC In most instances, materials licensmg completion of the agency action.

headquarters or regional personnel for actions do not mvolve substantial whichever occurs first. Secuan 2.u05tc)

Information concernmg thelicense. With hazards to public health and safety.

also declared any petition filed beyond these vehicles in place for providing the After weighing the matter carefully, we this penod would be considered timelypublic with information concenung have concluded that. in the context of only upon a showing of exc matenals licensing actiona, the materials licensmg. considerations of circumatonces. In response,eptional Commission does not believe it is regulatory hnality counsel that the several commenters assened that the agency's necessary or prudent to expend the Commission place a heavy burdenupon nottce practice was unproper and urged substantial additional agency resources those who wish to institute a heanng that Federal Register notice be given for that would be needed to publish notices proceeding more than six months after each matenals license appbcation in the Federal Register for each of the the agency fra'sTpproved the applicant's received. Other commenters, pnncipally approximately five thousand materials request for licensmg action, Therefore, matenals licensees or their legal bcensmg actions the agency takes on to avoid the litigation of stale claims. in counsel challenged the provisions average every year.Sae NRC1987 lieu of the reference in i 2.1205(c) to the allowmg timely heanng petttions to be AnnualReport at 73. In addition to the grant of a late-filed trutial heanng filed up to one year after the licenstnBstaff resources that would be required to petition on a showmg of " exceptional acuon and permitting subsequent prepare the notices, the NRC staff c:rcumstances" and the language of petitions upon an " exceptional ecumates that it would cost in excess of i 2.uc5{k) that provided for the use of circumstances' showing. A!!awmg up to one hundred thousand dollars annuallythe formal heanng late-filed petition one year to file a challenge leaves simply to pay the cost of publishing factors in i 2.714(a)(1), the Commission licensed activities under an unnecessary notices in the Federal Register for all has subantuted new language in these actions. The Commission also i 2.noS(k).The paragraph now states ofi 8 sho ea r e ed to 120 that to gam admission of a late-filed days or icss. Also, they contend. the made by one commenter unacceptable.

I'9"**

• exceptional circumstances provision Simdar or higher costs to the agency petition to intervene the requestor or could be expected if the egency intervenor will have the heavier burden i

hat andates that afte the Period for published notices m iocai newspapers.

of establishing that (1) the delay in filing gigt On the related question of the timmg the beanns request orintervention ng action 17to le a chalenge1 a lic peution was excusable: and (2) the grant f a heanng request when there is no petition for enforcement or other Federal Register notice, the Commission of the heanns request or intervention sppropnate relief under to CFR 2.206.

agms wadi the corntnents that a team petition, which institutes a heanng The Commission continues to believe penod of time may be appropnate for proceeding to explore the efficacy of the that its present practice regarding acceptmg heanng requests as timely.

agency s hcensmg action, will not cause Federal Register notice for mater.nla Balancing the interests of materials undue prejudice or injury to any licensmg appbcations comports with all licensees m prompt closure for potential participant to the proceeding. including applicable legai requirements and. under Ucensing action challenges against the the applicant and the NRC staffif the the circumstances. is appropnate in terms of the allocation of agency public interest m allowing a reasonable staff chooses to be a party. Essentially, resources. As noted in the proposed opportunity for "mterested persons" to the parsgraph requires that the avail themselves of their secuan 189a requestor or petitioner demonstrate that rule the Atomic Energy Act does not beanng nght. we find that allowing an the well-established doctnne of laches_

require that any notice be given of a initial heanng request to be filed for a would not bar theinstitution of a matenals licensmg action. Given the penod of six months after a matenals proceeding. Additionally, this provision lack of any constitutional nght to a licensmg action not noticed in the has been revised to state that any heanng m the usual matenals licensingFederal Register is appropnate.

unumely heanng request or mtervenuen case.see West Chicago at 645. the The Commission does not agree with petition that cannot overcome this Commission does not agree with the argument that there is a general the comment that any heanng request or laches bar will be referred for disposition in accordance with 10 CFR constitutional right to notice of the peution to mtervene filed after the six.

2.200.

opportunity for such a heanng.

month penod should be treated only as Also on the subject of notice, one Further. the publication of notices for a petition under 10 CFR 2.206. In all materials licensmg actmties cannot determining under what circumstances commenter suggested that the be justified as a judicious use oflimited the agency will entertain a late-filed Commission clanfy the meanmg of agency resources. Under present petition. consideration undoubtedly i 2.C05(c)(11 to make it clear that the practice. notice is given of significant must be given to the fact that the first Federal Register notice rela ting to a heanng provisions in the Atomic Energy matenals licensmg application.

including a notice about actmties under

• As espi med heio. nouce is s,ven Act suggest a congreestonal policy purucuter meien... te.n.mp enon, m.or tho..

lostenng a degree of citizen the National Environmental Policy Act.

i =g participation m specified types of inggers the thirty-dsy period withm ovmtic.ai.

which a heanng request must be filed in nuclear heensmg proceedings. See Long order to be timely, The Commission has I.'.arctt 31, isS9 2-S C-24

PART2 STATEMENTS OFCONSIDERATION donc so.The Co==iam-n would add upon the standards that are===riated filing of hearing requests, so as not to that. in response to the suggesuon of one in i 2 na far i- _= t = *

- The

• ' encourage'* additional heanng commenter.it has revised the rule to

' Commassion mdicated that the standing demands.no Commission disagrees state that for an initial Federal Register L.

notice regarding a particular application decision should be based upon an with this comment because it analysis of the particular matanal that misconstrues the purpose of this orlicensms accon.the notice mu6:

was the subitet of the licensing action provision. In instances when a Federe!

include a statement that the opportunity and not the " fifty.nule redina" rule that Register notice previously has not been for a heanns exists under the j

procedures set forth in Subpart 1.

had developed with respect to power issued reisting to a matenals licensing reactor licenalng proceedings. (52 FR at action, once a hearing request regarding in addition. this commenter requested that the provisaans of I 2.1205(c)(2) 20030). Several ca===aters agreed with that action has been received and i

the Comnussion's rejection of the fifty-granted. it is in the agency's interest to i

concernma "actoni notice'* be changed -

mile standard for matenals ha====g

' ensure that only one proceeding need be to indicate that timeliness determinations wdl be based on One commenter went on to sensest that conducted.The purpose of this provision instead the Commission should create a is to provide constructive notice to all whether the petitioner either knew t.r presumption that anyone reading (and interested persons of the date by which should have known of the pending presumsbly working) outside of a five-any further heanng requests must be licensmg application or action. A finding mile radius of the site where the nuclear filed, thereby cutting off a that the peutioner should have known materials in question are possessed intervenor's later sesertion of timeliness would be based upon such facton as does not have rtacding.%e based upon lack of actual notice.

newspaper accounta.The f'a==imaion Ca==ia= ion miects this suggestion.The declines to adopt this suggestion. lf a standing of a pentionerin each case Citing previous Licensing Board Federal Register notice has not been

~ should be deteramed based upon the practice in individualinformal published. a determination about circumstances of that case as they relate 14.1986. one commenter also suggested proceedings, see, e.g 51 FR 8920: March whether and when a peutioner otherwise had actual not ce should be to the factors set forth in paragraph (g).

that the rules provide the presiding

c. Litigarmn subject marren At the officer with the authonty to require that based upon the petitioner's particular factual situation rather than suggestion of a commenter, the a petition to intervene must include Commission has added languese to particularinformation on the presumptions about what other than paragraph (g) indicatmg that in addition intervenore concerns about the Federm Register publication provides to making a standing deternunation with materials licensing action, like that constructive notice, as the commenter respect to granting a hennas petition, or.

required by i 2.1:33 for the intervenor's seems to contemplate. Moreover, to aid in making that determmation the by reason of its incorp2rationin written presentation.This type of Commission has. as the same paragraph (i), an intervention petition.

requirement likely is not practicable the prestding officer should rule upon under the present regulatory scheme.

commenter suggested.pnmded in whether the petitioner desires to litigate Under the Licensing Board's practica paragraph (d) to this secuan that the matters that are germane to the (which the comments of this and other request for a hearms should detail the proceeding and WliiR!igl'1HElearing ca===nsers regarding the creation of a circumstances that establish.in accordance with paragraph (c), that the request is timely. Further in this regard.

hearing file make it apparent they to clanfy exactly what infonnation a disliked), the applicant was reopensible request is timely. With that information. petitioner naust supply in its hearms or for assembling a hearirig file and making as well as any answer from the intervention requeet. the t'a==e=='on it available to potentia!!ntervenors applicant or the NRC sieff Liiit has revised paragraph (d) to siste that "Immediately" upon the receipt of the participates as a parry), and any the petitioner must provide a conci notice granting an initial hearms additional information requested from statement of the areas of ~ m e request. As the Licensms Boarcrs the participants.a presiding officer MequertBftiesirer1STgtsW1EThearms. notices make clear,irranediate action e

should be able to make an mformed determmatica about when a pentioner This statement of concerns need not be was necessary to allow additional extensive, but it must be suhiant to interveners to file a detailed petition /

(whichin the case of partnership.

establish that the issues the requester initial wntten presentation within thirty corporation. or unincorporated association would include its directo's, wants to raise regarding the licenomg days. 51 FR st 8921. March 24.1988. As action fall generally within the range of is discussed in/m. the present scheme r

officers.and any members duly matters that properly are subject to gives the NRC staff the duty of authorized to represent it) had actual notice. We note that under i 2.1205(l) challenge in such a proceeding. It should compiling the heanns file within thirty be added that a sumlarrequirement has days of the grant of aninitialheanns the additionalrequirement of a showmg been provided for those who wish to of timeliness also would ordinanly request, the same period of time within apply *s those seeking to intervene request nonparty participaraan statue which any intervenor muet file a under i 2.12n(b).

petition.It would not be equitable to pursuant to a Federal Registar notice of

d. latervention. Section 2.1205(!) of the require an intervenor to file its wntten hearms.These interveners would ordinanly have to show that they did proposed rule states thatif a request for presentation setting forth allits a heenng was granted and no previous concems without access to the heanns l

not have actualnatice of the licensmg Federal Register notice has been ille. Of course. the intervenor is required action gior to the notice of hearmg.

published. a notice of hearing is to be to idenufy the atens of concern it wishes

b. Standing. paragraph (g) of proposed i 2.1205 states that in determinmg put in the Federal Register that, among to raise m the proceeding which will whether a particular petitioner has other things. will indicate that any provide the presiding officer with the standing to participate in an mformal additional hearung requests relating to minimalinformation needed to ensure adjudicauon. the presiding officer is to the licensmg proceedmg should be filed the intervenor desires to litigate issues within thirty days. One commenter has germane to the licensmg proceeding and consider whether the judicial standard suggested that this should be changed therefors should be allowed to take the for standing is met. The presiding officer's determmation is to be based simply to a reference to paragraph (c) of additional step of makmg a full wntten the same section, which provides for the presentation under i 2.1233.

2-SC-25 Marcit St.1989

l D73 PART2 STATEMENTS OFCONSIDERATIOfJ

e. Stofflicensing action dunng penc'ency of a heonng. In explani.ing its involved and fmds that the informationdays of the notice of beanng issued proposed rule. the Commission declared will not be supplied voluntanly. The that after weighing the pnvate and issuance of such an orderirsolely under i 2.1205(i). By adding these governmental rights involved. it within the power and discretton of the specific provis4ons relating to the time of 12.1211(b) participation requests, the concluded it would not requtre the presidmg officer. Therefore, contrary to Comuussion intends to ensure that all completion of any reonested heanng the commenter's suggestion. there is no before the NRC staff couse a the need for the procedures that govern i 2.1211(b) parucipants become involved in the proceeding from its incepuon.

licensmg action requested by the subpoena requests as m formal hearmga. thereby maximizmg their parn applicant. Section L1205(1)

5. proposed i 2.12n--Nonparty while nunimiamg the possibility forlater memonalizes this determmation.

participation d4 Although one commenter questioned this conclusion. the Commission As in formal heermgs, the

6. Proposed i 2.1231--.Heanng File contmues to believe that it has struck Ccmmission has provided for nonparty the appropnete balance. particularly panicipation in informal adjudications Unique to the informal proceedmg is since a process has been provided in by " interested" state and local the hearmg fde that is required by i 2.1203 whereby the stsif's action can governmems and by limited appearance 12.1231. That file is to be compiled by be stayed,if appropriate.

statements ferinterested groups and the NRC staff And provided to the Another commenter declared that the individusla. One commemer protested preutding officer. the applicant. and all that the statement in i 2.1211(al that "[a] parnes and 5 2.1211(b) participants to Coramission should revise the language limited appearance statement is not to the proceeding. it is to consist of the of paragraph (1) to indicate that the staff, rather than "need not" delay in be considered part of the decisior.al application for licensmg action and any issumg the license. is obligated to record"is evidence of the undue amendment to the application: any NRC restramts being placed upon public safety, environmental, or other reports proceed m the absence of a stay.The participation in informal adjudications relatiog to the application: and any Comnussion declines to adopt this suggestion. The purpose of this compared to formal hearmgs. This relevant correspondence between the provision :s to indicate that in the face language. however,is merely a NRC and the applicant. Commenters of a heanngrequestit was permissible restatement of the practice followed in raised questions about how and when for the staff to proceed to act in a formal proceedmgs with respect to the file is to be mada available to those particular pro:eeding if,in ita judgment.

limited appearance statements.

involved in the proceeding and about the acuen was appropnate. As indicated Other commenters suggested that the protecuona that would be afforded paragraph (b) conceming participation to propnetary ar.d other sensitive previously, the Commission certamly contemplates that waen the staff is able by interested state and local information that documents in the file to reach a positive conclusion about the governments be revised to include a might contain.

standing reqmrement and to mandate ne Commissien previously has safety and environmental consequences that these entities request permission to addressed one commenter's observation of a proposed licensing request. it will participate within thirty days of the that providing the NRC staff thirty days take action despite a pending heanng grant of a hearmg request.The to prepare and make the file available request. The determmation about whether or not it is appropnate to Commission declines to adopt the first willimpinge on the existing Licensmg suggestion. As in formal adjudications f,*t proceed with a particularlicensmg under i L715(c), there is no formal action pnor to the conclusion of the ent o petiti n m nt n proceeding before the presiding officer "standmg" requirement for " interested presentation. See IIA 3.d. supro. ge is left to the NRC staff, based on its state" parucipation in informal hearmsst thirty-day period is retained. subject to those state and local governmental adjustment by the presiding officer as technical and admmistrative judgment.

entities that can demonstrate a the ekcumstatices of a particular case

4. Proposed i 2120S--Presiding Officer's cogmzable interest in the limnamg may require.

I"*"'

proceeding should be allowed to This commentu also questiond One commenter questioned whether participate under i 2.1211(b).See Exxon whether the regmrement to make the two of the powere afforded presiding Nuclear Co. (Nuclear Fuel Recovery and officers by i 2.1209 are appropriate. The Recychng Center). A1.AB-447,5 NRC S73 heanng file "available" to parties an first of these is the power under (1977).

12.1211(b) participants would mondate that the NRC staff serve the file upon petagraph (d) to cerufyissues to the On the other hand, as Commission them, with the attendant costs in Appeal Board. We have concluded it ia,

'grecedent relating to formal proceedings instances when the flie is large. The for the reasons discussed more fully suggests, interested governmental infra. The otheris the power to enuties that do seek to come into a Proposed rule did envision that service subpoena documents or witnesses proceeding generally must comply with of the file might be one way to make it afforded by paragraph (h).This is any rules relating to timely intervention.

svailable. depending on the sine of the improper, the commenter declares.

See Clevelcad Electnc illuminatmg Co.

file. As the commenter points out.

because it would invite discovery (perry Nuclear Power Plant. Units 1 & 2). another wey would be to make it requests.The Commission does not CL!-66-20. 24 NRC 518 (1986). As a svailable locally. To clanfy what is agree. The purpose of this provision is to consequence, the Commission has meant by "available." we have revised make it clear that the presiding officer added language to i 2,.1211(b) declanng paragraph (a) to make it clear that has the authenty under AEA section that in instances tn which Federal service upon the parties and $ 2.1211(b) 101c. 42 U.S.C. 2201(c) to issue a Register notice has been given under participants and local availabihty are subpoena for documents or witnesses af.

i 2.1205(c)(1), a request for i 2.1211(b) alternative means of fulfilling this requirement. Which method the NRC in the course of conducting the particips. tion must be filed within thirty proceeding.he or she determines that days af an order granting a request for a staff chooses undoubtedly will depend the informauon is necessary for the fu!1 heanng. Ahernauvely.if no notice has on the circumstances of the proceeding.

and fair exploestion of the issues been issued, the request for This commenter also expressed strong participation must be filed within thirty reservanons about the proposed rule's requirement that the appiacant would be Marcn ;,11,1989 2-SC-26

U7't i

PART 2 STATEMENYG OF CONSIDERATION responsible for making the file publicly hearing file. the Commission doubts that examination of witnesses isy availablelocally. Aftercareful consideranon we have decided to shift a joint mtervrnnon/wntten presentation nnnsponsonng parties. To clanfy this filing will be appropnate in most matter, the Commission h this responsibility to the NRC staff, with instances. See ll.B.3.d. supin.

language m paragrapn (a)as included the understandmg that if this stating that in this regard. the Commission has not tha responsibility for the examination of -

"availabihty" opnon is chosen, the file adopted the suggestion of another all witnesses rests with the presiding need be ma:ruamed only through the commenter that the rule contam officer, who may allow parties to end of the licenstng proceeding. And,if language settmg specific time frames propose questions for the witness that the staff chooses to use service as the within which an mitial presentation and the presiding officer can pose if the j

means of making the file available to any reply thereto must be filed after the questions are found appropnate.The j

participants m the proca edmg, requests date the heanng file is made available.

Commission recognizes that by requiring for the file by otner members of the While the Comuussion endorses the the presiding officer to tnake

)

public do not require that arrangements concept that wntten presentations deternanations about the propriety of i

for local availsbdity must be made, should be made as promptly as possible. each question for a witness, an Instead. these recuesta can be handled the Commission continues to believe through the usual NRC process for that the presiding officer will be in the additional burden is being imposed that making public documents available.

best posttion to set a schedule based could involve delay in the proceeding The rr.atter ni protecting propnetary upon his or her review of the issues while the parties compose and ths and other sensiuve mformauon relating raised in each heanes peution.The presiding officer decides the propriety of to a licensmg acucn was raised by Commission also cannot enoorse this questions for each witness. Nonetheless, another commenter. Although the plain because oral presentations should be commenter's suggestion that language language of I 2.790 appears to cover this should be added that would direct that necessary only in those rare instances.n issue for matenals licensmg the submission cf wntien presentations which the wntten presentations leave proceedmps to eliminate any embiguity should not await the completion of any unresolved issues that the presiding in this regara we have included a NRC staff :afety or environmental officer finds can be decsded only after reference to that provision m i 2.1203(a).

analysis that ts being prepared relative havmg oral presentations, and because

7. Proposed i 2.1233-Written to the licensmg application. Agal1. thf a proposed questions undoubtedly can be i

Presentations is an issue best left to the discretton of prefiledinmanyinstances the An imponant ddierence between the the presiding officer.The Commission Commission expects these procedural l

{

informal hearmg provided for in Subpart notes, however, that because the NRC requirements to be manaFeable.

1 L and the forrr ai proceeding conducted stall can take a licensing action prior to One other commenter questioned I

under Subpart G is the wntien the completion of a hearms an the whether the language to parag sph (b)

{

presentation outlined,in i 2.12:3.The application. any delay in the hearing s.tating that "ta]Il oral presentations i

Commission contemplates that in the that might be caused by swaiting a staff other' unless the presiding officer ordecs vast majority of cases these safety or environmental evaluation se, must be public."is designed

{

would not necessanly translate into a to give c presiding cI!icer more latitude l

presentations and follow-up wntten delsy in license issuance.

to hold nonpublic infonnal hearmga than j

questions, nther than an oral heanng Finally, one commenter suggested that is provided for formal adjudications before the presiding officer, will be the adu S* put GA Iact. ene wu no

{

vehicle by which the parties and any specific langucge be added to paragraph A

I 2.1211(b) parncipants are heefd and (c) to indicate that applicants have the a cat mis paion be the issues resolved.

nght to file a reply to the written substantively different from i 2 751.

Commenter concerns about this presentation of those parties who which governs formal heanngs. To avoid challenge the requested licensing action. any ambiguity the Comnussion has provision centered en issues of timing.

While the right of an applicant, as a added language to paragraph (b) to that is, when will wntten presentations be requt*ed to be submitted. Sectinn party to the proceeding, to file a wntten make it clear dat Ws netaon para e s j

11233 as proposed stated that the timing presentation is implicit in the language 12nt l

4 and sequence of these presentations is of parsgraph (a), the Commtssion has to be set by the presiding officer after added additionallanguaga.to that

9. Proposed i 2.1251-Initial decision any notice of heanng and after the NRC paragraph clarifiying any ambiguity. Re Two commenters raised questions staff has made the hesnns file available sequence and timing of that submission about i 2.1251. which specifres dat aher to the parties. One commenter suggests remains in the discretion of the nompletion of the informal written and, that the provision be reworded to make presiding officer.

11nessary, oral presentations, a it clear that an order establishing the

8. Proposed i 2.1235-Oral presiding officer must render an initial schedule fer wntten submissions may prenntations decision, unless the Commissicn chooses to undertake that task itself by be issued before the end of the thirty-In the event that the wntten having the record cernfied to it. Opv day pened that the staff has to make the heanng file available.ne commenter presentations afforded by 12.1233 and commenter suggested that, as victs repeats its plea that this is necessary to the t esponses to wntten questions posed i 23se, there shoW be langeege making allow for the contmustion of the by the presiding officer prove to be the initial decision miedie'.ely effective Licensing Board practice of hevmg inadequate to resolve the issues raised.

so as to authonze thei % staff to take l

intervennon petitions include the the presiding officeris given the the appropriate licenomg action. Section l

information required for the initial discrenon to allow or require the parties t1205(1) which authonze6 the NRC l

to make oral presentations.These staff to take a requested liceming action l

wntten presentation. The Commission adopts the suggested wording change.

presentations may include the test: mony without.* gard to any pending heanng As indicated previously. however, cf witnesses.Commenters expressed request, unuubtedly will provide the concern that the language of I 2.1235 did functional equ'velent of an effectiveness because the NRC staff rather than the not make clear the parameters under provision in mat.v instences. The applicant is now responsible for which oral presentaticus were to be possibility exists. however. that the staff compiling and making available the allowed. particularly wnh respect to will not yet have taken any action or, if l

ggg mee m ern

E D7f PART 2 STATEMENTS OF CONSIDERATION the staff has acted, the presiding ofBeer's determmation may include matenals licensees. As a result, the ib.ense conditions that were not Commission has decided to retain Regulatory Flazilality CertiEmation -

imposed by the staff. in these instances,. AppealBoardinitialreviewof presiding The fmalrule willnot have a it would be appropnate for the presiding officer decision subject thereafter to sua significant economicimpact upon a officer a decision to become sponte Comnussion review.

substantial nurr.ber of small entities.

immediately effective so as to authorize C. AdditionalComments Many matanals licensees or intervenorm the staff to take the appropriate fall within the definitica of small licensms action promptly. Accordingly' One commenter made two additional businesses found in section 34 of the suggestions. The commenter suggested Small Business Act.15 U.S.C. 63L or the (e) cnd to i 2.1 1 to i e te that the that the materials licensing rule contain Small Busineos Size Standards set out in presiding ofhcar's decision wdlbe a pension regarding burden of proofin regulations issued by the Small Business immediately effective, subject to any the pmceeding and a procsion on Administration at ts CFR Part 121. or stay that might be sought and granted in motions pmcedures.The Commission the NRC's size standards published accordance with i 1.1203, has included a new i 2.uW that would December 9,1985 (50 FR 50241). While A second commenter suggested that incorporate the a ppropriate provisions the fmal rule would reduce the litigation the time within which an imttal will become final agency acnon. decision of Subpart G relating to these matters, cost burden upon licensees or absent an appeal, should be thirty days rather hvironmentalImpe caw interven rs becauseof theinformal then the forry.five days spemfied in the Enlaim nature of the heanng. the requirement proposed rule.The Comuussion agrees The NRC han detennined that this that they submit filings and with this proposal and paragraph (a) has final rule is the type of action derenbed contested legal and factual issues is stdl documentaryinformation detailing been rensed accordingly.

In categoncal exclusion 10 CFR

- 10. Proposed il 2.n53 1257-Agency E22(cMilhrefwe.neither an requared. Some cost reduction in Appellate Review of a Presiding enenmentalimpact statement nor an compenson to the cost of participating environmental assessment has been in a formal ediudicatory heanng can be Officer's Determmation Under il 2.1253.1257 of the proposed prepared for this final rule.

anticipated. although it is problemenc whether that reduction as a whole will l

rula, parties and i 2.1211(b) participants Paperwork Reduction Review be signiGcant. Certainly, the use of naalrule catains m infwmadon hd procedun wd! nM turnu an op eel i h the At c

Safety and 1.icensma Appeal Board. as collection requirements and therefore is ngnsEcanth the Mn tipon bassa they do under the existing practee for not subject to the requirements of the to respond to heanng requests. Thus,in formal adjudications.Several paperwork Reduction Act of1930(44 accordance with the Regulatory rommenters enticized this provision as U.S.C. 3501 et seq.),

Flexibility Act. 5 U.S.C. 605(b) the NRC bringing an unnecessary and overl certifles that this rule does not have a Y

formal step into the informal heanns RegulatoryAnalysis signincant economicimpact upon a process.One commenterrecommended The Atomic Energy Act affaeds substantial number of small antities.

that any review be limited to Commission. conducted sua sponte interested persons the right to a hearing BackGt Analysis 1

consideration of the presiding officer's regarding a materialo licensing i

decision to determme whether there proceedmg. As the Commission The final rule does not modify or add l

previously indicated in its West CA/cago to systems, structure. componetits, or j

were any errors that require correction.

decision.15 NRC at 241. the use of design of a facility: the design approval For those mformal ma terials licensing informal procedures involves less cost or manufacturing license for a nuclear heanns proceedings convened since the West Chicago proceeding. the only and delay for parties and the reactor facility; or the procedures or appellate review provided has been a Commission than the use of formal. trial, organization required to design.

Commission sus sponte review of the type procedures, the ordy other construct, or operate a facility.

presiding officer s decision. such as is procedural siternative. Also, procedures Accwdingly, a becm analysis suggested by the commenter. As a result must be in place to allow for orderly pursuant to 10 CFR 50.109(clis required of its experience in those proceedings.

conduct of those adjudications.

for this final rule.

the Commission has concluded that theC"d interest of all parties is better served if p ocedures fo a 1 IIcensan8 I.lst of Subjects in 10 CFR Part1 the Appeal Boaro is riven the inet proceedings in preferable to the only opporturury to coa-d- =av u Sa'a other alternative, which ts the present Administrative practice and cortcerning errors i: a nr==^- nma- 's practice of establishing the procedures procedure. Antitrust. Byproduct 14iu er racmai na^a== =Ima m to a -

to be followed on a case-by. case basta.

material. Classified infonnation.

parncqiulicemina =+nn.The Appeal By codifying the procedures the Environmental protection. Nuclear Board, whose pnncipal function is the Commission wtll avoid the expenditure matenals. Nuclest power plants and review of adjudicatory records in formal of time and resources necessary to reactors. Penelty. Sex discrimination, licensmg matters. generally is in as good prepam the mdividual orders that Source material. Special nuclear Y a position as the Commtwon to provide previously have been used to designate material. Waste treatment and disposal.

a thorough, prompt. initial appellate those procedures, it thus is apparent For the reasons ser out in the review ofindividualinformal that this final nue is the preferred adjudicatory decisions, as well as interlocutory certified quesnons, thereby alternative and the cost entailed in its preamble and under the authonty of the promulgation and applications Atomic Ene gy Act of1954. es amended.

freeing Commission resources for the consideration of broeder policy matters necessary and appropnate.The the Energy Reorganization Act of 1974 relating to reactor facilities and foregomg discussion constitutes the as amended, and 5 U.S.C. 552 and 1,53, regulatory analysis for this final rule.

the NRC is adopting the followmg amendmente to to CFR part 2:

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