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)

Text

- - . _ _ _ _ _ _ _ _ - - _ - - _ - - _ . _ - _ - _ _ _

, [ yf;W FR CORitESP0y09%

CD g; t, h-T..

a--m= /k[h

.&p are"%

.k 2t UNITED STATES E )W E NUCLEAR REGULATORY COMMISSION CCCTD Y"

ik f E- ATOMf0 SAFETY AND LICENSING BOARD PANEL 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 FROM:

W Peter l..Bloch,AdministrativeJudge 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 5 PDR ADOCK 070 c

t u -- __ _ _ _ _

7@v

d, IN

^

' considered.

PART 2 RULES OF PRACTICE FOR DOMESTIC LICENSING 4PR (d) The provisions of paragraph (c) of (b) Documents are filed with the (c) A person other than an app!icant this section shall a Office of the Secretaryin adjudications respect to hcenses.pply only with subject to this subpart either- sha I file a request for a heanng authorizations.or

• b amendments to licenses or (1)By delivery to the Docketing and (1) Th rty (30) days of the agency's

' authonzations applied for under the Service Branch of the Office of the publication of the initial Federal Atomic Energy Act of1954, as amended. Secretary at One White Flint North, Register notice referring or relating to an

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

4 (e) Unless the presiding officer 20852:or requested by an application, which must f3 k disposes of allissues etd dismisses the (2) By mail or telegram addressed to include a reference to the opportunity I proceeding, appeala from *he pmsiding the Secretary. U.S. Nuclear Regulatory for a hearing under the procedures set {#

Commission. Washington, DC 20555, forth in this subpart; or

? officer's order disposing of issues and I designating one or more issues for Attention: Docketing and Service (2)If a Federal Register notice is not 1 2 Branch. published in accordance with paragraph

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

with the telegraph company.he Filing by mail orreceives actualnotice of a pending i 2.1117 % other means is complete as of the time application an or en application: or ages.cy action granting m rof other secnoaa.

of delivery to the Docketing and Service in proceedings subject to this subpart. Branch of the Office of the Secretary. (ii) One hundred and eighty (180) days )

the provisions of Subparts A and C of to after agency action grantmg an CFR Part 2 are also applicable. cxcept (c) Each document submitted for Gling 'FP .,

where inconsistent with the provisions anydiudicati sub ctt sa g4 The$ quest for a heanng filed b '

of tMs subpart" person other than an applicant must m

typed, must bear the docket number and desenbe in detail-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 Matertata Ucensing Proceedings and address of a person upon whom p the results of the proceeding.

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

!2.1201 Scope of subpart. must be signed in accordance with should be permitted a hearing with l I 2.700(c). A document, other than The generalrules in this subpart -

correspondence, must be filed in an in p ra

govern procedure in any adjudication ( f se io j '

imt ated by a request for a hearingin a h D cuments filed by telegram areonginal abou)t the and licensing two conforming activity that cop is proceeding for the grant, transfer, k renewal, or licensee initiated E fa a toverned by i 2.708(f). A document that

• subjecunatterof the proceeding:and E conf nn to thue nquinments 6 (4) The circumstances establishing amendment of a materiallicense subject  !'

to Parts 30,32 through 35,39,40. or 70 of may be refused acceptance for filing and 3 accordance with may be returned with anindication of s thf a chapter. Any adjudication regardinghueas n orn unacceptance. Any section.

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

initiated by a notice of hearing issued (d) Computation of time and extension mail to -by delivering it personally or by served, under i 231. a notice of proposed (1) and reduction of time limits is done in is the applicant): sndThe applicant (un!cas the requestor action under i 2.105, or a request for heanng under Subpart B of to CFR Part accordance with Il 2.7142.711.

(e) A request for a hearing or a (2)The NRC staff. by delivery to the 2 on an order to show cause, an order Executive Director for Operations. One 4 for modification of license, or a civil petition for leave to 1.ttervene must be -

@ penalty,is to be conducted in served in accordance with 6 2.712 and White Flint North.11555 Rockville Pike.

e i 2.1205(e). (j). All other documents Rockville, MD 20a52, or by mail accordance with the procedures set  ; ;

E forth in Subpart G of10 CFR Part 2. issued by the presiding officer, the addressed to the Executive Director for 4 g Atomic Safety and Licensing Appeal OperCons. U.S. Nuclear Regulatory 1 2.1203 Docket; titing: servk*- Board, or the Commission or offered for Comrrassion Washington, DC 20555.

filing are served in accordance with

' j i

(a) The Secretary shall maintain a i 2.712. request for a heann)g filed under(f)V l -

docket for each adjudication subject to paragraph (c) of this section, the g I

this subpart. commencing with the filin -

i11205 Request for a hearing; petition applicant may file an answer. The NRC of a request for a heanng. Allpapers, g foH*m to intmene.

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

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.

transfer. renewal, or licensee.initia ted request for a hearing within ten 10) orders. submitted or issued in the 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 transcnpts of any oral presentations or subpart may file e request for a beanng.

(b) An applicant for a license. a (g)ln ruling on a request for a hearing {,

filed under paragraph (c)of this section.

oral questioning made in accordance license amendment a license transfer, the presiding officer shall determine that or a license renewa,l who is issued a }

with 5 2.1235 or in connection with any the specified areas of concern are appeal under this subpart must be filed notice of proposed denist or a notice of germane t the subject matter of the l ,

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 timely. The presidmg officer also shall

• public availability of official records the time specified in i 2.103 in all cases. '""*"' ' "9"""'"'

relating i 2.700.

to the proceeding is governed by April 28,1989 (reset) 26 -

i 4 I

' R) 2'1205(g)

{  !

PART2 RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEDINGS 2.1209(

' judicial standards for standing and shall matters set forth in paragraph (g) of this consider. among other factors- 6ection. i 2.1207 Designation of prestatng otticer.

(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 proceeding: proceedmg. -

(b) of this section, within ten (10) days (2) The nature and extent of the of receiving from the Office of the (k)(1) A request fc7 a hearing or a Secretary a request for a heanng requestor's property, financial, or other interest in the proceeding: and petition for leave to it.tervene found by relating to a licensmg proceeding 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 of the Atomic Safety and ucensmg upon the requestor's interest.

entertained only up)on determination by Board Panel shallissue an order 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 .

g the applicant and the NRC staff shall be end. if necessary.to serve as the (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 l

request filed under paragraph (c) of this (b) For any rea';est for hearing 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 a party to the proceedmg along with the hearing or the petition for leave to Part 70 to receive and store unitradiated applicant and the NRC staff.11 the staff fuel at the site of a production or  ;

~ chooses or is ordered to participate as a intervene will not result in undue utilization facility that also is the subject party in accordance with 12.1213. prejudice or undue injury to any other of a proceeding under Subpart C of this participant in the proceeding. including Pa t for the issuance of an operating (i)If a request for a heanng is granted 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 the Federal Register stating Panel shallissue an order designatmg a (1)The time. place and nature of the to be untimely and the requestor or '* ' duct gt e hearmg; petitioner fails to establish that it p,rl e ,e g otherwise should be entertained under the request for a heanng and,if (2)The autLority under which the paragraph (k)(1) of this section, the necessary, to conduct the heanng in heanng is to be held; 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 (tof ofintervene.as specified in paragraph ,

g action regarding an application for a substantially the same as those being this section:and h heard in the pending proceeding unde E )(5)The titr.e within which a regilicensing

.st to action covered by this subpart.

E [m) An order granting a request for a cc 10 CFR Part 50. the Ucensing Board may g participate under i 2.1211(b) must be 3 heanng or a petition forleave to 'Iconduct the hearingin accordance with filed. the procedures in Subpart C.

Intervene may condition or limit (j) Any petition forleave to intervene participation in the interest of avoiding i 2.1209 Power of presiding otticer.

,' must be filed within thirty (30) days of 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, action to avoid delay, and to maintain leave to intervene in its entirety, the (1) A petition for leave to intervene order.The presiding officer has all action is appealable within ten (10) days 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 including the power to-NRC staff- whether the request for a hearing or the

- petition for leave to intervene should (a) Regulate the course of the heanng (i) By delivery to the Executive and the conduct of the participants:

have been granted in whole or in part. If Director for Operations. One White Flint (b) Dispose of procedural requests or 1: a request for a hearms or a petition for similar matters:

North.11555 Rockville Pike. Rockville, leave to intervene is granted, parties MD 20852; or (c) Hold conferences before or during other than the requestor or petitioner the hearing for settlement, simplification (ii) By mail addressed io the Executive may appeal that action within ten (10)

{ Director for Operations. U.S. Nuclear days of service of the order on the of the issues, or any other proper purpose:

Regulatory Commission. Washington, question whether the request for a i DC 20555, (d) Certify questions to the Atomic 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

')7 applicant and the NRC staff,if the staff entirety. An appeal may be taken by filing and servtng upon all parties a officer's discretion or on direction of the chooses or is ordered to participate as a statement that succmetly sets out with Commission or the Atomic Safety and

} party in accordance with I 2.1213. may Ucensing AppealBoard; file an answer. supportmg argument, the errors alleged. (e) Reopen a closed record for the

' 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 intervene must be ruled upon by the time prior to initial decision in

($ presiding officer, taking into a ecount the counter. statement within fifteen (15) days of the service of the appeal brief. accordance with 1233t (f) Admmister oaths and affirmations; t

[

A 2-61 April 23,1989 (reset)

.k4 _ _ . _ _ _ _ _ . _ _ _ _ - - _ - _ - - - - -- - - - - - -

PART2 RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEDING (8) Issue mitial decisions (h)!ssue subpoenas requ; i ring the officer whether or not the staff desires the file. lf an established local public attendance and testimony of witnesses to participate as a party to the at the hearmg or the production of adjudication. In addition upon a document room does not exist the NRC staff will arrange for the documents documents for the hearing: determmation by the presiding officer that the resolution of any issue in the contained in the heartng file, along with (i) Receive wntten or oral evidence any other materisi docketed in and tak e official notice of any fact in proceeding would be agled materially by staffs participation in the proceeding accordance with 6 2.1203. to be made accordance with ! i?43(i); available for public inspection and (i) Appomt specialcasistants from the as a party, the presiding officer may copying during the course of the Atomic Safety and 1.lca nsing Board offer or permit the NRC staff to participate as a party with respect to adjudication in a library or other facility panelin accordance with 123:2; that particular issue. that is accessible to the general public (k) Recommend to t!'e Commission 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 where the nuclear material that is the a particular proceeding; and (a) An ir.dividual may appear in an adjudication under this subpart on his or subject of the proceeding will be (1) Take any other action consistent possessed.

with the Act and this chapter. her own behalf or by an attorney-a t-law.

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. copying during regular usiness hours at organization or a i 2.1211(b) participant (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 (b) The heanng file will consist of the limited appearance m order to state his ,

of an organization is not an attorney.at- application and any amendment thereto.

or her views on the issues. Limited law. he or she shall be a member or any NRC environmentalimpact appearances may be in writing or oral. officer of the organization represented.

Upon request of the presiding officer, an statement or assessment relating to the at the discretion of the presiding officer, individual acting as a representative application, and any NRC report and and are governed by rules adopted by any correspondence between the the preending officer. A limited shall provide appropnate information establishing the basis of his or her applicant and the NRC that is relevant appearance statement is not to be authonty to act in a representational to the application.Heanns file considered part of the decisional record doctiments already in an established under i 2.1251(c). capacity, local public document room or the NRC (b) Within thirty days of an order (b) Any action to repnmand. censure..

or suspend a party, a i 2.1211(b) Public Document Room when the grantmg a request for a heanng made 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 of a notice of heanng issued under be in accordance wid L precema u. those locations by a reference indicating 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 opportunity to participate in a i 2.1231 Hearing file; proNbition on appropriate materials for the heanns 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 g duty to keep the hearing fPe up to date must state with reasonable specificity presiding officer.ty (30) a entry of days of the 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 dob8b the provide those materials for the docket, 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 '

presiding officer shall afford the e a p liio ij,th n en, 10]da s hearing file was made available initially d .

under paragraph (s).

representative a reasonable opportunity or a request to ParticiPate under (d) A party or i 2.1211(b) participant 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 initial decision in accordance with $2.1233 Wrttten presentat ons; wrmen party or l 2.1211(b) participant to the l questions.

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

(a) After publication of a notice of (i) Service m accordance with i 2.1203(e); or hearing in accordance with I 2.1205(i) 5 2.1213 Rois of the NRC staff. and after the NRC staff has made the if a hearing request is filed under (ii) placing the fde in an established y local public document room in the heanng file avadable in accordance i 2.1205(b), the NRC staff shall be a with 12.1231 the parties and i 2.1211(b) vicinity of the pnnc:pallocation where ,

party to the proceeding. If a hearing participants shall be afforded the request is filed under i 2.1205(c). within nuclear matenal that is the subject of a i 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, party, or i 2.12n(b) participant in their arguments and documentary data. 3 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 P h

April 28,1989 (reset) 2-62

nh ..

3(a) PART2 RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEDINGS 2.125 oral presentations by any party or has been made. he or she shall certify 3g [tEnes andestablishes iding officer in the sequence by the9 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 may, on his or her initiative, submit presentations are subject to any , special circumstances support a waiver

]

~

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

. r witness rests with the presiding officer made after any further proceeding the

{ hpropriateermational documentary data, material, or other wntten who may allow a party or i 2.1211(b) Commission deems appropriate.

evidence. participant to propose questions for the

& (b)in a hearing initiated under i 2.1241 Setttement of proceedings.

3 presiding officer to pose a witness.

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

, (b) Oral presentations and responses proceedings subject to this subpart is

, presentation of the applicant that is to oral questioning to be relief upon as sissued a notice of proposed denial or a er couraged. A settlement must be oral evidence must be given under oath approved by the presiding officer or

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

' agency's demal or proposed denial of its Board, as appropriate,in order to be 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 omission. Initial Decision. Commission Review.

ordered by the Commission. And final Decision i t under

• '{ {1 c e l (c) Strict rules of evidence do not apply to oral submissions under this i2.1251 inttist decision and us offect.

presentation of a party that requested a (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 accordance with paragraph (b) of this initiative, stnke any portion of an oral deficiency or omission in the license 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 disposed ofin accordance with 112.730 taken in accordance with i11253.

.' with respect to each deficiency or (b) The Commission may direct that 2

omission. p I*N83' o, 3l - (d) A party or i 2.1211(b) participant 4 (b)Urdess otherwise ordered by the

$ II'd presiding ofhcer certify the record to m

' presiding officer the applicant or the e it without an initial decision and may E inaking an initial written presentation ' 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 source. such as the hearing file, all $ 2.1239 conalderation of commisalon ]c"y$* initial decision must be in rules and regutauons in informal

. w d:cumentary data, informational adjud canona. wntmg and must be based only upon 4

tQwterial, or other wnttenorevidenco information in the record or facts ch it relics to support illustrate upon (a) Except as provided in paragraph officially noticed.The record must U*5' (b) of this section, any regulation of the include allinformation submitted in the y' , ,a [d c p ined Commission issued in its program for proceeding with respect to which all Y the licensing and regulation of a dsta.1dorma tionaI ma terial. or other parues have been given reasonable prior written evidence may be submitted or production and utilization facilities, notice and an opportunity to comment.

erenced by any party, other than the source material, special nuclear The initial decision must includo-l 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 ep din o fi er h o, , (b) A party to an adjudication subject presented on the record:

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

s epply to wntten submissions under this specified in paragraph (a) of this secuan and 8

io b h be waived or an exception made for the (3)The tm, ie with, , m which appeals to motion or on the res ficer on particular proceeding. The sole ground the decision and a brief in support of 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 uest o t at is c ula ive, trebe nt so that application of the regulation to opposition o p als filed b anather i

imrpaterial* or unreliable

• the subject matter of the proceedirig pany may e .an en 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 g oMC*f. 8" Akm60 8888ty and ucenwng paragraph (e) of this section. the Director of Nuclear Reactor Regulation or the , ,,,i.",f # "8

• 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 #""I take the appropriate licensing action * " "" " I'" "8 " 'I 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 ' '

'

• th a "b a y deci ior 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 inhemmassu hamai...

m . - -

. 82(A PART 2 STATb.MENTS OF CONSIDERATION uffected by a nuclear matenals hcensmg proceeding. Kerr.McGee Corp. (West comments and the Commission's 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 1.11 earing Procedures Are Too formal Clr.1983) (both hereinafter referred to as West Chico;ij. On July 24.1987, the 20 Several commenters who are date for submitting comrsents on the Published 2/28/89 materials licensees or who represent 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 existing regulations m to CFR Part 2. j informal Heanng Procedures for small number of materials licensing Subpart C that govern the conduct of a rg st eiv'd te i

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 by the parties. T9e would be no in response to each matenals licensmg b provide rules of procedure for the 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 '

making oral presentations would be practical expenence ir* conducting heanng."in any proceeding for the informal adjudications, expenence that grantmg suspending revoking,or limited stnctly by the presiding officer. 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 special nuclest matenals. The formal adjudications would be requests explains in part the delay in the Commission's promulgation of this final Commicsion previously has determmed prohibited. Essentially, the informal that the 'heanng

• provided for a rule in thatit has taken longer to gam heanng is designed to elicitinformation 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 regulations that currently govem mo e than through an adversanal llowever. it ultimately is not a sufficient 4 counterweight to the prudent formal adjudications for the hcensmg of confrontation between the parties. As a reactor facilities. Rather. the consequence, the presiding officer has observation of the United St.ites Court 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 l en opportunity to present wntten views the pa.w, are to be explored. that the interests of all concerned in the is sufhcient to fulfdl this requirement. hesnng process are better served if the 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

1. "* #U' inimal proceedings. This is 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 I potentially are subject to hCaring of the General Counsel. U.S. Nuclear corporanons that hold NRCmatenals requests. l Regulatory Commission. Washington- licenses. a trade association DC 20555. Telephone: (301) 492-1t334. representing companies holding NRC This commenter also asserted that the proposed mformal procedures should suPPctrnNTARY INFORMATtoln materials licenses, pnvate coansel that not be adopted because the adjudicatory {

represent NRC reactor and matenais I~ Back I """d format is not suited to the resolution of licensee 8 public interest groups, a local governmental entity, and an individual technical questions and, in any vent, the On May 29.1987152 FR 2000940096), existence of two sets of procedures, one j the Nucleat Regulatory Commission member of the public.Seven of the for infonnal proceedings and one for published in the federal Register commenters expressed general support formal proceedings, inevitably will lead proposed amendments to its Rules of for the proposed rules and provided interveners to complain that their Practice (10 CTR Part 2) that would spectfic comments and suggestions on  ;

specify the ; articular procedures particular provisions. Three commenters allegations require the use of the more  !

opposed the ru!cs as providing extensive formal procedures. Regardmg apphtahic to mformal adjudicatory the issue of the suitability of heanngs.in accordance with section insufficient procedural projections for "adjudica tory" procedures, the 189a of the Atom:c Energy Act of1954 intervenmg parties. Two other l commenters opposed the rules as commenter appears to be questiorung

( AEA) (42 U.S.C. 2239(a)) informal the advisability of ustng a trial-type.

I hearmp are conducted upon the request unnecessanly fonnalizing the beanng adversary format. as opposed to more cf any persan whose interest may be process for matenals licensing legislative-type, infermal procedures. to l adjudications. A review of the specific resolve technical disputes. In its ,

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 determmes that an opportunity for a participate in a heanng.8 the rules allow application, any environmental participation though wntten and. in public heanng should be afforded."

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

edhere to the Administrative Procedure nid to fact. finding. the presiding officer Act's (ApA) adversary tnal model set West Chicego.15 NRC at 244-46.

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

beyond the initir.1 submissions of the nonetheless,it still provides the parties m the context of this more informal 2. Proposed i 2.1203-Docket. Filing, parnes. Further. the Commission does and Semce proceeding with an opportumty to raise not believe that the mere existence of a quesnons with the presiding officer set of informal procedures willlead to about a witness' testimony. Section 2.1203 establishes the an erosion of the distinction between administra tive requirements for the 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.g ht to specifically in i 2.1201, generally comes routine matters such as document discover about as an amendment to an existing semce contnbutes to the efficient heanngs.y even unless in APAprocedures discovery "on the record'* 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 require authorization to dispose of materials languste to that paragraph. which is record ,d to conduct an APA "on the held under an existing matenals heanng in a materials licensing 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 facility under to CFR Part el.this 3 Proposed i 2.1205-Request for a Commission's on the record' heanng 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 Part 30. 40. or 70. Eg. 20.104s). the agency, wea the subject of a number e nee.v.. .n interested person ha. . .tatutory 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.c . authorizations. a. Notice o/motenols licensing

.pp....a io . ss..o ..rapiy occain. so can n. erty This commenter also suggested this enan.t. h.nsins b..nns.. octwns/ timing of hearing requests. In provision in too broad because it states the proposed rule. the Commission 2.SC.23 fAarch 31, !989

l 1

S 2 71 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 prende for funher admission oflate-Register notice is published. proposed declaration of the need to prepare an i 2.305(c) provided that a heanns environmentalirnpact statement). Also, filed petitions and the terms under i

l petition would be considered umely if those persons'truly interested in a which they wdl be admittsd ultimately filed within thirty days after the particular materials licensee's actmties is a matter committed to the asency's 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 several Commission does not believe it is regulatory hnality counsel that the 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 i 2.uc5{k) that provided for the use of ecumates that it would cost in excess of the circumstances' showing. A!!awmg up to one hundred thousand dollars annually 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 forhas allsubantuted 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

• • " I'9"** * * '# ""

made by one commenter unacceptable. * ""

exceptional circumstances provision Simdar or higher costs to the agency petition to intervene the requestor or hat i could be expected if the egency intervenor will have the heavier burden gigt andates that afte the Period for published notices m iocai newspapers. of establishing that (1) the delay in filing the beanns request orintervention chalenge1 a lic ng action 17to le a On the related question of the timmg f a heanng request when there is no peution was excusable: and (2) the grant 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 challengesthe the circumstances. is appropnate in against applicant and the NRC staffif the the public interest m allowing a reasonable staff chooses to be a party. Essentially, terms of the allocation of agency the parsgraph requires that the opportunity for "mterested persons" to resources. As noted in the proposed requestor or petitioner demonstrate that rule the Atomic Energy Act does not avail themselves of their secuan 189a beanng nght. we find that allowing an the well-established doctnne of laches_

require that any notice be given of a would not bar theinstitution of a initial heanng request to be filed for a matenals licensmg action. Given the proceeding. Additionally, this provision lack of any constitutional nght to a penod of six months after a matenals licensmg action not noticed in the has been revised to state that any heanng m the usual matenals licensing Federal Register is appropnate. unumely heanng request or mtervenuen case.see West Chicago at 645. the petition that cannot overcome this Commission does not agree with the The Commission does not agree with argument that there is a general the comment that any heanng request or laches bar will be referred for peution to mtervene filed after the six. disposition in accordance with 10 CFR constitutional right to notice of the 2.200.

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

Act suggest a congreestonal policy including a notice about actmties under

• As espi med heio. nouce is s,ven the National Environmental Policy Act.

purucuter meien... te.n.mp enon, m.or tho.. lostenng a degree of citizen ovmtic.ai. i =g participation m specified types of inggers the thirty-dsy period withm nuclear heensmg proceedings. See Long which a heanng request must be filed in 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 that. in response to the suggesuon of one in i 2 na far i- _= t = *

• filing of hearing requests, so as not to commenter.it has revised the rule to

- The *' encourage'* additional heanng

' Commassion mdicated that the standing demands.no Commission disagrees state that for an initial Federal Register notice regarding a particular application decision should be analysis of the particular matanal that based upon an with this comment because it L.

orlicensms accon.the notice mu6: misconstrues the purpose of this '

. 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 for a heanns exists under the Register notice previously has not been had developed with respect to power issued reisting to a matenals licensing j procedures set forth in Subpart 1.

reactor licenalng proceedings. (52 FR at in addition. this commenter requested action, once a hearing request regarding 20030). Several ca===aters agreed with that action has been received and i

i that the provisaans of I 2.1205(c)(2) the Comnussion's rejection of the fifty-concernma "actoni notice'* be changed - granted. it is in the agency's interest to mile standard for matenals ha====g ' ensure that only one proceeding need be to indicate that timeliness One commenter went on to sensest that conducted.The purpose of this provision determinations wdl be based on instead the Commission should create a whether the petitioner either knew t.r is to provide constructive notice to all 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 that the peutioner application should have or action. known A finding mile radius of the site where the nuclear filed, thereby cutting off a materials in question are possessed would be based upon such facton as does not have rtacding.%e intervenor's later sesertion of timeliness newspaper accounta.The f'a==imaion based upon lack of actual notice.

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 practice in individualinformal

~ should be deteramed based upon the published. a determination about proceedings, see, e.g 51 FR 8920: March circumstances of that case as they relate whether and when a peutioner 14.1986. one commenter also suggested to the factors set forth in paragraph (g).

otherwise had actual not ce should be c. Litigarmn subject marren At the that the rules provide the presiding based upon the petitioner's particular officer with the authonty to require that suggestion of a commenter, the factual situation rather than a petition to intervene must include Commission has added languese to particularinformation on the presumptions about what other than Federm Register publication provides paragraph (g) indicatmg that in addition intervenore concerns about the constructive notice, as the commenter to making a standing deternunation with materials licensing action, like that respect to granting a hennas petition, or. required by i 2.1:33 for the intervenor's seems to contemplate. Moreover, to aid by reason of its incorp2rationin in making that determmation the written presentation.This type of paragraph (i), an intervention petition. requirement likely is not practicable Commission has. as the same the prestding officer should rule upon commenter suggested.pnmded in under the present regulatory scheme.

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

accordance with paragraph (c), that the hearing file make it apparent they to clanfy exactly what infonnation a disliked), the applicant was reopensible request is timely.

as well as any answer from the With that information. petitioner naust supply in its hearms or intervention requeet. the t'a==e=='on for assembling a hearirig file and making applicant or the NRC sieff Liiit it available to potentia!!ntervenors 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 additional information requested from notice granting an initial hearms the participants.a presiding officer statement of the areas of ~ m e request. As the Licensms Boarcrs MequertBftiesirer1STgtsW1EThearms. e notices make clear,irranediate action should be able to make an mformed This statement of concerns need not be determmatica about when a pentioner 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 corporation. or unincorporated initial wntten presentation within thirty wants to raise regarding the licenomg days. 51 FR st 8921. March 24.1988. As association would include its directo's, r action fall generally within the range of officers.and any members duly is discussed in/m. the present scheme matters that properly are subject to gives the NRC staff the duty of authorized to represent it) had actual challenge in such a proceeding. It should compiling the heanns file within thirty notice. We note that under i 2.1205(l) be added that a sumlarrequirement has the additionalrequirement of a showmg been provided for those who wish to days of the grant of aninitialheanns 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 pursuant to a Federal Registar notice of under i 2.12n(b). petition.It would not be equitable to hearms.These interveners would d. latervention. Section 2.1205(!) of the require an intervenor to file its wntten proposed rule states thatif a request for presentation setting forth allits ,

ordinanly have to show that they did . -

a heenng was granted and no previous l not have actualnatice of the licensmg Federal Register notice has been concems without access to the heanns action gior to the notice of hearmg. ille. Of course. the intervenor is required -

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

b. Standing. paragraph (g) of proposed put in the Federal Register that, among i 2.1205 states that in determinmg to raise m the proceeding which will whether a particular petitioner has other things. will indicate that any provide the presiding officer with the additional hearung requests relating to minimalinformation needed to ensure standing to participate in an mformal the licensmg proceedmg should be filed the intervenor desires to litigate issues adjudicauon. the presiding officer is to within thirty days. One commenter has consider whether the judicial standard germane to the licensmg proceeding and suggested that this should be changed therefors should be allowed to take the for standing is met. The presiding simply to a reference to paragraph (c) of additional step of makmg a full wntten officer's determmation is to be based 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 issuance of such an orderirsolely under i 2.1205(i). By adding these that after weighing the pnvate and governmental rights involved. it within the power and discretton of the specific provis4ons relating to the time of presidmg officer. Therefore, contrary to 12.1211(b) participation requests, the concluded it would not requtre the completion of any reonested heanng the commenter's suggestion. there is no Comuussion intends to ensure that all need for the procedures that govern i 2.1211(b) parucipants become involved before the NRC staff couse a the 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 participation while nunimiamg the possibility forlater memonalizes this determmation. d4 Although one commenter questioned As in formal heermgs, the 6. Proposed i 2.1231--.Heanng File this conclusion. the Commission contmues to believe that it has struck Ccmmission has provided for nonparty panicipation in informal adjudications Unique to the informal proceedmg is the appropnete balance. particularly by " interested" state and local the hearmg fde that is required by since a process has been provided in 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 individusla. One commemer protested preutding officer. the applicant. and all Another commenter declared that the Coramission should revise the language that the statement in i 2.1211(al that "[a] parnes and 5 2.1211(b) participants to the proceeding. it is to consist of the of paragraph (1) to indicate that the limited appearance statement is not to 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 proceed m the absence of a stay.The restramts being placed upon public safety, environmental, or other reports Comnussion declines to adopt this participation in informal adjudications relatiog to the application: and any 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 limited appearance statements. involved in the proceeding and about particular pro:eeding if,in ita judgment.

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 by interested state and local contemplates that waen the staff is able information that documents in the file governments be revised to include a might contain.

to reach a positive conclusion about the safety and environmental consequences standing reqmrement and to mandate ne Commissien previously has of a proposed licensing request. it will that these entities request permission to addressed one commenter's observation 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 request. The determmation about to prepare and make the file available whether or not it is appropnate to Commission declines to adopt the first willimpinge on the existing Licensmg proceed with a particularlicensmg suggestion. As in formal adjudications under i L715(c), there is no formal f,*t ent o petiti n m action pnor to the conclusion of the 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 technical and admmistrative judgment. those state and local governmental adjustment by the presiding officer as entities that can demonstrate a the ekcumstatices of a particular case

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

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 12.1211(b) participantsfile "available" would mondate to parties an first of these is the power under (1977).

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 Proposed rule did envision that service infra. The otheris the power to enuties that do seek to come into a of the file might be one way to make it subpoena documents or witnesses proceeding generally must comply with svailable. depending on the sine of the afforded by paragraph (h).This is any rules relating to timely intervention. file. As the commenter points out.

improper, the commenter declares. See Clevelcad Electnc illuminatmg Co. another wey would be to make it because it would invite discovery (perry Nuclear Power Plant. Units 1 & 2). svailable locally. To clanfy what is requests.The Commission does not CL!-66-20. 24 NRC 518 (1986). As a meant by "available." we have revised agree. The purpose of this provision is to consequence, the Commission has paragraph (a) to make it clear that make it clear that the presiding officer added language to i 2,.1211(b) declanng service upon the parties and $ 2.1211(b) has the authenty under AEA section that in instances tn which Federal participants and local availabihty are 101c. 42 U.S.C. 2201(c) to issue a Register notice has been given under alternative means of fulfilling this subpoena for documents or witnesses af. i 2.1205(c)(1), a request for i 2.1211(b) requirement. Which method the NRC in the course of conducting the particips. tion must be filed within thirty staff chooses undoubtedly will depend proceeding.he or she determines that days af an order granting a request for a heanng. Ahernauvely.if no notice has on the circumstances of the proceeding.

the informauon is necessary for the fu!1 and fair exploestion of the issues been issued, the request for This commenter also expressed strong reservanons about the proposed rule's participation must be filed within thirty 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 availablelocally. Aftercareful hearing file. the Commission doubts that examination of witnesses isy 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 responsibilitythat the understandmg to the if thisNRC staff, with instances. See ll.B.3.d. supin. language m paragrapnstating (a)asthat included "availabihty" opnon is chosen, the file in this regard. the Commission has not tha responsibility for the examination of -

adopted the suggestion of another all witnesses rests with the presiding need be ma:ruamed only through the end of the licenstng proceeding. And,if commenter that the rule contam officer, who may allow parties to language settmg specific time frames propose questions for the witness that the staff chooses to use service as the j means of making the file available to within which an mitial presentation and the presiding officer can pose if the any reply thereto must be filed after the questions are found appropnate.The participants m the proca edmg, requests date the heanng file is made available. j for the file by otner members of the Commission recognizes that by requiring public do not require that arrangements While the Comuussion endorses the the presiding officer to tnake )

for local availsbdity must be made, concept that wntten presentations i deternanations about the propriety of Instead. these recuesta can be handled should be made as promptly as possible. each question for a witness, an through the usual NRC process for the Commission continues to believe additional burden is being imposed that that the presiding officer will be in the 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 questions for each witness. Nonetheless, another commenter. Although the plain Commission also cannot enoorse this because oral presentations should be commenter's suggestion that language necessary only in those rare instances .n ,

language of I 2.790 appears to cover this should be added that would direct that 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 officer finds can be decsded only after NRC staff :afety or environmental reference to that provision m i 2.1203(a). havmg oral presentations, and because analysis that ts being prepared relative

7. Proposed i 2.1233-Written to the licensmg application. Agal1. thf a proposed questions undoubtedly can be Presentations prefiledinmanyinstances the i is an issue best left to the discretton of l the presiding officer.The Commission Commission expects these procedural An imponant ddierence between the requirements to be manaFeable.

{

informal hearmg provided for in Subpart notes, however, that because the NRC One other commenter questioned 1 L and the forrr ai proceeding conducted stall can take a licensing action prior to I under Subpart G is the wntien the completion of a hearms an the whether the language to parag sph (b)

{

application. any delay in the hearing s.tating that "ta]Il oral presentations presentation outlined,in i 2.12:3.The .. 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 to give c presiding cI!icer more latitude {

presentations and follow-up wntten would not necessanly translate into a l delsy in license issuance. to hold nonpublic infonnal hearmga than questions, nther than an oral heanng Finally, one commenter suggested that is provided for formal adjudications j

before the presiding officer, will be the langucge be added to paragraph adu S*Aput GA Iact. ene wu no vehicle by which the parties and any specific {

I 2.1211(b) parncipants are heefd and (c) to indicate that applicants have the a cat mis paion be nght to file a reply to the written substantively different from i 2 751.

the issues resolved.

presentation of those parties who which governs formal heanngs. To avoid Commenter concerns about this provision centered en issues of timing. challenge the requested licensing action. any ambiguity the Comnussion has While the right of an applicant, as a added language to paragraph (b) to that is, when will wntten presentations j be requt*ed to be submitted. Sectinn party to the proceeding, to file a wntten make it clear dat Ws netaon para e s 12nt l 11233 as proposed stated that the timing presentation of parsgraph (a), is implicit in the language the Commtssion has 4

and sequence of these presentations is 9. Proposed i 2.1251-Initial decision to be set by the presiding officer after added additionallanguaga.to that any notice of heanng and after the NRC paragraph clarifiying any ambiguity. Re Two commenters raised questions sequence and timing of that submission about i 2.1251. which specifres dat aher staff has made the hesnns file available nompletion of the informal written and, to the parties. One commenter suggests remains in the discretion of the presiding officer. 11nessary, oral presentations, a that the provision be reworded to make .

it clear that an order establishing the 8. Proposed i 2.1235-Oral presiding officer must render an initial prenntations decision, unless the Commissicn schedule fer wntten submissions may be issued before the end of the thirty- chooses to undertake that task itself by day pened that the staff has to make the In the event that the wntten having the record cernfied to it. Opv 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 by the presiding officer prove to be the initial decision miedie'.ely effective allow for the contmustion of the inadequate to resolve the issues raised.

Licensing Board practice of hevmg 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 to make oral presentations.These staff to take a requested liceming action l wntten presentation. The Commission l 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 because the NRC staff rather than the concern that the language of I 2.1235 did functional equ'velent of an effectiveness 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 PART 2 STATEMENTS OF CONSIDERATION D7f the staff has acted, the presiding ofBeer's determmation may include matenals licensees. As a result, the Regulatory Flazilality CertiEmation -

ib.ense conditions that were not Commission has decided to retain 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.

immediately effective so as to authorize substantial nurr.ber of small entities.

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 (e) cnd to i 2.1 1 to i e te that the that the materials licensing rule contain Small Business Act.15 U.S.C. 63L or the presiding ofhcar's decision wdlbe a pension regarding burden of proofin Small Busineos Size Standards set out in immediately effective, subject to any regulations issued by the Small Business the pmceeding and a procsion on stay that might be sought and granted in motions pmcedures.The Commission Administration at ts CFR Part 121. or accordance with i 1.1203, the NRC's size standards published A second commenter suggested that has included a new i 2.uW that would December 9,1985 (50 FR 50241). While incorporate the a ppropriate provisions the time within which an imttal the fmal rule would reduce the litigation will become final agency acnon. decision of Subpart G relating to these matters, absent cost burden upon licensees or 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 that they submit filings and The NRC han detennined that this documentaryinformation detailing with this proposal been rensed accordingly. and paragraph (a) has final rule is the type of action derenbed In categoncal exclusion 10 CFR contested legal and factual issues is stdl requared. Some cost reduction in

- 10. Proposed il 2.n53 1257-Agency E22(cMilhrefwe.neither an Appellate Review of a Presiding enenmentalimpact statement nor an compenson to the cost of participating Officer's Determmation in a formal ediudicatory heanng can be environmental assessment has been anticipated. although it is problemenc Under il 2.1253 .1257 of the proposed prepared for this final rule.

rula, parties and i 2.1211(b) participants whether that reduction as a whole will l Paperwork Reduction Review be signiGcant. Certainly, the use of an op eel i h the At c naalrule catains m infwmadon hd procedun wd! nM turnu 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 proceedmg. As the Commission The final rule does not modify or add l decision to determme whether there j were any errors that require correction. previously indicated in its West CA/cago to systems, structure. componetits, or For those mformal ma terials licensing decision.15 NRC at 241. the use of design of a facility: the design approval heanns proceedings convened since the informal procedures involves less cost or manufacturing license for a nuclear 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 I.lst of Subjects in 10 CFR Part1 the Appeal Boaro is riven the inet 1 IIcensan8 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 ato -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 review ofindividualinformal that this final nue is the preferred For the reasons ser out in the adjudicatory decisions, as well as preamble and under the authonty of the interlocutory certified quesnons, thereby promulgation alternative and the cost entailed and applications Atomic Ene in its gy Act of1954. es amended.

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

amendmente to to CFR part 2:

_ _ _ _ _ _ _ _ - - . - _ _ _ _ . _ _ _ . . _ _ .