ML20248G414
| ML20248G414 | |
| Person / Time | |
|---|---|
| Issue date: | 10/03/1989 |
| From: | Bradley Jones NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC |
| Shared Package | |
| ML19324A884 | List: |
| References | |
| FRN-54FR39387, RULE-PR-2 AD27-1-1, NUDOCS 8910100234 | |
| Download: ML20248G414 (3) | |
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- UNITED STATES (f, E
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October 3, 1989 5
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Nuclear Document System
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Bradley W. Jones
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Subject:
Legislative History for Proposed Rule on Procedures-4
. Applicable to Proceedings for the Issuance of Licenses for
-the Receipt of High-Level Waste at' a; Geologic Repository In' accordance with th'e: September 27, 1989 Memorandum to me from Michael Lesar of the Regulatory Publications Branch, I have: attached the' relevant documents
-for the: legislative history of the subject rulemaking. Appendix A: lists those
. documents which are' not publically available. Appendix B lists-those.
documents which are publically.available.
I understand that you will forward-to me-a computer printout of these documents after they have been entered on
- the NUDOCS. system.. If you have any questions please call me at 492-1637.
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APPENDIX A f40N-PUBLICLY AVAILABLE DOCUMENTS 1.
SECY-89-186, " Consideration of Revisions to the Commission's Rules of Practice in Order to further Streamline the High-level Waste Licensing Process". June 20, 1989.
2.
Vote Sheet of Lando W. Zech, Jr. on SECY-89-186. June 28, 1989.
3.
Vote Sheet of James R. Curtiss on SECY-89-186. June 28, 1989.
4.
Vote Sheet of Kenneth C. Rogers on SECY-89-186. July 6, 1989.
5.
Vote Sheet of Thomas Roberts on SECY-89-186. July 13, 1989.
6.
Vote Sheet of Kenneth W. Carr on SECY-89-186. July 24, 1989.
7.
Staff Requirements Memorandum on SECY-89-186. July 25,1989.
8.
Memorandum from Lesar to Jones on Legislative History. September 27, 1989.
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f-l 1 APPENDIX B DOCUMENTS THAT CAN BE PUBLICLY RELEASED 1.
Proposed Rule on Procedures Applicable to Proceedings for the~ Issuance of
- Licenses for the Receipt of High-level Radioactive Waste at a Geologic Repository. Signed by the Secretary on September 19, 1989.
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NUCLEAR REGULATORY COMMISSION 10 CFR Part 2 Rill: 3150-AD27 Procedures Applicable to Proceedings for the Issuance of Licenses for the Receipt of High-level Radioactive Waste at a Geologic Repository 4
AGENCY:
Nuclear Regulatory Commission.
ACTION:
Proposed rule.
SUMMARY
The Nuclear Regulatory Commission is proposing to amend its Rules of Practice for the licensing proceeding on the disposal of high-level radioactive waste at a geologic repository (HLW proceeding). The proposed revisions are intenced to facilitate the Commission's ability to comply with i
the schedule for the Commissica's decision on the construction authorization for the repository contained in Section 114(d) of the Nuclear Waste Policy Act,
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while providing for a thorough technical review of the license application and the equitable treatment of the parties to the hearing.
For the HLW proceeding, I
the proposed rule would establish a new standard for the admission of initial I
I contentions, would define " late contentions" as any contention proposed after the initial contentions were submitted, would require parties to present direct testimony on contentions, would establish a compulsory hearing schedule, and would eliminate sua sponte review by the Commission's adjudicatory boards.
l The Cour,ission is also proposing a change to the regulations to clarify that the 1
1.SS Adntinistrator's periodic evaluation of, and written report on, DOE's
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compliance with the LSS requirements will be circulated to potential parties who must timely file any objections they may have to the Administrator's evaluation or risk waiving such objections.
In addition, the Commission.is proposing to amend its regulations to clarify its authority to designate a l
presiding officer to resolve disputes during the period prior to receipt of a 1
formal application for construction of the high-level waste repository. The proposed amendments would also clarify that the Commission will specify the jurisdiction of the presiding officer in designating the presiding officer pursuant to these amendments.
DATES:
The comment period expires [ INSERT Dl;TE SIXTY DAYS AFTER PUBLICATION]. Comments received after this date will be considered if it is practical to do so, but assurance of consideration is given only for comments filed on or before that date.
ADDRESSES:
Submit written comments to: Secretary of the Commission, U.S.
Nuclear Regulatory Commission, Washington DC 20555, Atter. tion: Docketing and Service Branch.
Copies of comments received may be examined at the NRC Public Document Room, 2120 L Street NW. (Lower Level), Washington, DC.
i FOR FURTHER INFORMATION CONTACT:
Bradley W. Jones, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington DC 20555, Telephone:
i 301-492-1637.
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. SUPPLEMENTARY INFORMATION:'
Background
In the final rule on the Licensing Support System-(LSS), promulgated on
. April 24, 1989 (54 FR 14925), the Commission added a new Subpart J to 10 CFR Part 2 which' establishes the basic procedures for the HLW licensing proceeding, including.the use of the LSS in.the proceeding. As the Commission noted in the Supplementary Information to this rule--
...the Commission is committed to do everything it can to r
streamline its licensing process and at the.same time conduct a thorough safety review of the Department of Energy's application to construct a high-level waste repository. The riegotiators to this rulemaking have made a number of improvements to our existing procedures.
i However, more in.provements may be necessary if the Commission is to meet the tight licensing deadline established by the Nuclear Waste Policy Act of 1982, as amended.
By publishing this rule, the Commission is not ruling out further changes to the rules' contained in the negotiated rulemaking.
54 FR 14925, 14930.
Accordingly, the Commission has evaluated the need for any further modifications to the procedures for the HLW proceeding. This evaluation has focused on the need to modify or supplement, through rulemaking or other procedural mechanisms, the provisions contained in the new Subpart J.
The objective of the proposed revisions is to enable the Commission to conduct the HLW licensing proceeding in the most efficient manner possible and to facilitate compliance with Section 114(o) of the Nuclear Waste Policy Act, as amended, which requires the Commission to make a decision on the issuance of I
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- the construction authorization for the repository within three years after the submission of the DOE license application, while still providing for a thorough technical review of the license application and equitable k
participation in the HLW proceeding by affected parties.
For the HLW pre.:eding, the proposed rule would establish a new standard for the admission of initial contentions, would define " late contentions" as any contention proposed after the initial contentions were submitted, would require parties to present direct testimony on contentions, would establish a compulsory hearing scheoule, and would eliminate sua sponte review by the Commission's-adjudicatory boards.
In conducting its evaluation of the need for further changes to the HLW licensing process, it has cone to the Commission's attention that there is some question as to whether the Commission is required to use a three member Licensing Board to resolve disputes during the pre-license application phase of the HLW proceeding.
It was never the Commission's intention that it have less flexibility for resolving disputes during the pre-license application phase of the HLW proceeding than exists for other NRC licensing proceedings.
Accordingly, the Commission is proposing clarifications to the regulations to provide the Commission with the same options for resolution of disputes during the pre-license application phase of the HLW proceeding as exist in other NRC licensing actions.
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, Tne Preposed Rule:
Standar6s for initial contentions (6 2.1014)
On August 11, 1989, the Commission promulgated a final rule amending the provisions of general applicability in Subpart G of the Commission's Rules of Practice (" final rule on regulatory reform").
54 FR 33168. The final regulatory reform rule addresses standards for the admission of contentions (6 2714), the elimination of unnecessary discovery against the parties (6 2.740), the discretionary use of cross-examination plans (6 2.743), motions for summary disposition (62.749) and limitations on interveners filings of proposed findings (6 2.754) and appeals (b 2.762). Section 2.1000 of Subpart J cross-references those sections of general applicability in Subpart G that will cor.tinue to appl.y to the HLW licensing proceeding. As such, all but one of the provisiores in the final regulatory reform rule - 6 2.714, which requires contentions to show that "a genuine dispute exists on a material issue cf law or fact" - will autcrtatically apply to the HLW proceeding.
However, Subpart J contains a new provision on contentions, 6 2.1014, and 6 2.714 would therefore not apply to the HLW proceeding.
Consequently, the proposed revisions to Subpart J would amend 6 2.1014 to incorporate a similar standard for contentions to that contained in 6 2.714 of the final regulatory l
1 reform rule.
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The proposed amendments to 10 CFR 2.1C14 would raise the threshold for the admission of contentions to require the proponcnt of the ccntention to l
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r3 1 applicant on a material issue of law or fact. The contention must be supported by a concise statement of the alleged facts or expert opinion, together with specific sources and documents of which the petitioner is aware, which will be relied on to establish the facts or expert opinion. This requirement does not call upon the intervenor to make its case at this stage of the proceeding, but rather to indicate what facts or expert opinion, be it one fact or many, of which it is aware at this point in time which provide the basis for its contention. Absent a showing that there is a genuine dispute on a material issue of fact or law, the contention will not be admitted.
Under the proposed
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amendments, admission of a contention may also be refused if it is determined that the contention, even if proven, would be of no consequence in the proceeding because it would not entitle the petitioner to relief.
- Finally, the proposed amendments would provide that a contention raising only an issue of law will not be acmitted for resolution in an evidentiary hearing but shall be decided on the basis of briefs and/or oral argument, in aodition to providing a statement of facts and sources, the proposed rule will also require interveners to submit with their list of contentions sufficient information (which may include the known significant facts described above) to show that a genuine dispute exists between the petitioner and the applicant on a material issue of fact or law. This will require the intervenor to read the pertinent portions of the license application, state the applicant's position and the petitioner's opposing view.
Where the intervenor believes the application and supporting material do not address a relevant matter, it will be sufficient for the intervenor to explain why the application is deficient.
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' Late-filed contentions (: 2.101')
The proposed rule vould amend 6 2.1014 to require that any contentions proposed after the initial contentions have been filed must satisfy the higher stanGard for admission that is currently set forth in 62.1014(a)(c)of Subpart J.
Inadditiontothestandardsini2.1014(a)(1),aproponentofa late-filed contention would need to demonstrate that the contention addresses e si[nificant new safety or environr. ental issue. or that the contention raises-
-a neu material iss'.;e related to the erformance evaluation required by 10 CFR 6'.112 and 6r.113. The proposed' revision would retain the standard for late filed-contentions that is in 0 2.1014(a)(') of the existin? rule, but would apply that standarJ to any contention filed after the initial contentions are submitted. The existin; rule only applies the higher standard to contentions submitted more than 40 days af ter the iss"cnce of the NRC Staff Safety Evaluat-:or.
Report (SER). The-Hearing Licensin-Board is to interrret the " good cause" criterion in 2.1014(a)(1)(i) strict y; the mere issuance of the SER uould not constitute 9000 cause" for late filing under 6 2.1^1t.(a)(1)(i).
In evaluating whether the contention raises "significant" or " material" issues, the Board could consider such factors, among others, as whether a materially different result in the proceeding might be likely if the contention were to be admitted, or whether a modification in facility design or construction that substantially enhances the protection of public health and_ safety would result if the contention here to be admitted. The later in the proceeding that a contention is raised, the creater the burden in showing I
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'its significance or materiality. The extensive interaction between NRC, DOE, and affected parties such as the State of Nevada in the pred. cense application phase, as well as the early availability 'of relevant documents through access to the LSS before initial contentions must be filed, should j
substantially reduce the need for late-filed contentions.
By identifying Ita
. issues in controversy, to the extent practicable, at the outset of the hearing, the proposed revision will contribute to an efficient hearing
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process.-
Participation in the LSS (s 2.1014)
The Negotiatir.g Comnittee had originally proposed that a facter to be considered under s 2.1014(c) governing admission to the high level waste proceeding would be the petitioner's participation as a potential party under 9 2.1005(c) of Subpart J.
The Commission deleted this provision in the final version of the Subpart J rulemaking because, the Commission did not believe that pre-license application access would have any meaningful effect j
on a Licensing Board's determinaticr. on' intervention petitions. Thus,
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1 participation in the LSS would not be given weight as a factor in favor of j
granting an intervention petition.
1 In deleting that provision, however, the beneficial effect of encouraging
-participation in the LSS was also celeted.
Because participation in the LSS is an important component of the procedural mechanisms adopted by the Commission to meet its statutorily dictate.d deadline for consideration of the application for construction of the high-level waste repository, the
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p Comission does wish to encourage participation in the LSS. While it still does not believe'that participation in the LSS should be a favorable factor affecting the Licensing Board's decision on granting an intervention petition, the Commission does believe a failure to participate in'the LSS should weigh against the granting of an intervention petition. Accordingly, the Commission has decided to add as an additional factor under 10 CFR 2.1014(c), to be cor.sidereo by the Licensing Board in determining whether a petitioner has met the requirements for participation as a party to the high-level waste proceeding, the' failure of a petitioner to participate in the LSS.
Direct testimony on contentions (6 2.1024)
The proposed rule would acd a new i 2.1024 to Subpart J that would require a party that sponsors a contention to present direct testimony on the contentier.
Past NRC practice has been to allow a proponent of a contention to prove its case sclely by cross-examination of the license applicant's or the NRC staff's witnesses. The proposed amendment would require a party sponsoring a contention to put forth direct expert testimony in support of the contention. However, a party could subpoena a witness of the applicant or the NRC staff to satisfy this requirement, in effect, calling a " hostile witness.
Under proposed 6 2.720(a),
a party seeking to subpoena a hostile witness, other than from the NRC staff, would be required to demonstrate the general relevance of the testimony to the contention. However, under proposed i 2.720(h)(2)(v), the presiding officer is directed to not issue a subpoena requiring the testimony of named NRC personnel
s unless a showing is made that the particular named NRC employee has direct personal knowledge relevant to the contention, and that the testimony sought is not reasonably obtainable from another source. This will reduce the potential for the direct case requirement to divert critical NRC staff resources from other functions. The cost of obtaining the necessary testimony from another source will not be a relevant factor-in making the determination requiredunderproposedb2.720(h)(2)(v).
The proposed requirement for a direct case would also apply to replies to motions for sumary disposition as well as to contentions. Surreary disposition motions that are supported by evidentiary material in the form of dffidavitS Would also necessitate a reply to the sumary disposition motion tht.t is supported by affidt.vits.
Although the propcsed amendment oeviates from current hRC practice, the Commission believes that the expedited hearing schedule recuired by the NWPA, the extensive pre-license application cor.sultation process, and the early availability of relevant licensing material through the LSS, justifies a requirement of a direct case from those who seek to participate in the proceeding. The sanctions for failing to present a direct case on a contention at the hearing will be dismissal of the contention.
Failure to respond in kind to a motion for sumary disposition of a contention would also result in the dismissal of the contention.
In terms of the ultimate burden of proof, the license applicant would still have to satisfy the NRC thct the issue involved has been acceptably resolved, as is the case with all uncontested issues.
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,- Compulsory hearing schedule ($2.1026)
In order to facilitate compliance with the NWPA schedule, the Commission set forth a model hearing schedule in the Supplementary Information of the LSS rule. 54 FR 14924, 14939.
Several of the milestones in the model schedule are already required by virtue of the provisions in Subpart J.
The proposed rule f
would make the entire schedule mandatory, while still providing some flexibility to the Board to address mitigating circumstances. For the filings required of j
the parties, the Board may grant extensions for any individual milestone of up j
to'15 days. Ab) approval by the Boaro of extensions in excess of 15 days would be referred to the Commission.
If the Commission did not act to disapprove the-i
. extension within 10 days, the Board's extension would be effective. Barring exceptiorel and unforeseen circumstances, a party who seeks an extension beyond I
15 days must file the request for the extension no later than 5 cays in advance of the scheduled date for the milestone.
For Board issuances, the Board would have a grace period of thirty days to J
i comply with the milestone.
If the Board anticipates that such a milestone j
will be exceeded by more than thirty days, the Board is required to notify the Commission of the delay at least ten days in aovance of the scheduled date for
, the milestone, and to provide a justification for the delay. This will allow the Cocinission to track the cuniulative effect of individual delays on its ability to meet the NWPA schedule.
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L Sua sponte ($2.1027) 1 The proposed rule specifically prohibits ~the Hearing Licensing Board or the Appeal Board from raising issues that have not been placed in controversy by the parties to the proceeding. The Commission does not believe that sua sponte authority is necessary in a proceeding, such as the HLW proceeding, where a hearing is required'on the decision to authorize construction of the repository, and where the parties will include entities that should be well-prepared and have had substantial involvement in the hLW licensing process, and therefore, there is little likelihood that a significant issue will be overlooked.
Conforming Amendments The proposec rule also contains several conforming amendments. Section 2.1000hasbeenrevisedtodeleteis2.749and2.785(b)(2). The proposed rule adds a new 9 2.1025 on sumary disposition for the HLW proceeding. Therefore, the summary disposition provision, in the general applicability provisions of Subpart G, 6 2.749, no longer needs to be cross-referenced in 6 2.1000. Section 2.785(b)(2)inSubpartGallowsth: 'ppeal Board to consider serious matters that have not been raised by the parties. This would conflict with proposed 6 2.1027 which prohibits sua sponte review and therefore has been deleted f rom 9 2.1000. Finally, proposed 6 2.4(p) clarifies that for purposes of 9 2.1018, "NRC personnel" includes NRC consultants.
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,. Clarification to LSS Regulations The Comission is also proposing a change to 10 CFR 2.1003(h) to clarify that the periodic evaluations of, and written report on, DOE's compliance with the LSS requirements, required by 62.1003(h)(2)(1)and(ii),willbecirculated to the potential parties for comment. While the current regulations provide at 6 2.1003(h)(2)(iii) that a party may coment on the report required under-6-2.1003(h)(2)(ii), the regulations are silent concerning coments on the evaluations required by 62.1003(h)(2)(i).
In order to essure early identification of any disputes concerning the LSS administrator's findings on DOE's compliance with the LSS requirements, the Comission is amending i
6 2.1003(h)(2)(iii) to specify that both the evaluations required under 62.1003(h)(2)(i)andthewrittenreportrequiredunder 92.1003(h)(2)(ii)will be circulated to the potential parties in the high level waste proceeding for coment ano that objections to the Administrator's findings on DOE's compliance must be filed within 3C days of the Administrator's report or be waived.
In addition, the Comission is proposing clarifications to 10 CFR 2.1010 governing resolution of disputes during the pre-license application phase of the HLW proceeding. Current NRC regulations, at 10 CFR 2.1010, provide that a
" Pre-License Application Licensing Board" will decide certain disputes which arise during the pre-license application phase associated with licensing of j
the high-level waste' repository. The regulations at 10 CFR 2.1000 also I
provide that the provisions of 10 CFR 2.704 will apply to the high-level waste repository licensing proceeding. Although 10 CFR 2.704 provides that the Commission may, in a Notice of Hearing, provide for one or more members of the
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L J 1 Commission, or an atomic safety and licensing board, or a named officer who has been celegated final authority in the matter, to preside over NRC hearings, the Notice of Hearing associated with the high level waste repository construction application will post-date designation of a Presiding Officer to rule on issues during the pre-license application phase of the High Level Waste Repository proceeding.
In addition, the language in 10 CFR 2.1010 has raised some question as to whether the Commission is limited to use of a three member licensing board'during the pre-license application phase of the high level waste repository proceeding.
The Commission, in adopting 10 CFR 2.1010, did not intend to limit the Connission's options to use of u three merrber licensing board during the pre-ficense application phase of the high-level waste repository licer. sing proceeding. While the Commission may, in fact, decide to use a three member licensing board to resolve pre-licer,se application disputes, the Commission did not intend that its options for resolutich of these issues would be more limited then for other NRC proceedings. Accordingly, the Commission is adopting amencments to the language of 10 CFR Part 2, which clarifies that the
-Commission retains the full range of options, similar to the options delineated in 10 CFR 2.704 for other NRC proceedings, for resolution of disputes during the pre-license application stage of the high-level waste licensing proceeding.
In addition, the jurisdiction, of a Presiding Officer designated under 10 CFR 2.704 is normally contained in the Notice of Hearing for the procceding over which the officer will preside. Because no Hotice of Hearing will have issued in the pre-license application stage of the high-level waste
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proceedings,'the Commission is also adopting an amendment that clarifies that the Comission will, in designating.a Presiding Officer under 10 CFR 2.1010
'for the pre-application phase of the HLW proceeding, specify the jurisdiction
-of the Presiding Officer.
Notice of Hearing h
I In addition to the procedures' set forth for the HLW proceeding in Subpart J, the Commission intends to also address several issues related to the..
management of the hearing in the Comission's Notice of Hearing for the HLW proceeding. Under the; current schedule, the DOE license application will not be subnitted.until early 1995. However, the Commission is now evaluating, and seeks comment on, the following issues that it plans to include in the Notice -
of Hearing--
(1) The Commission itself will designate the members of the Hearing Licensing Board. This Board will have plenary authority and mariagement responsibility for the HLW hearing, including the authority to discipline parties, to rule on procedural motions on issues before it, and to rule on party status and contentions. The Hearing Licensing Board may establish such other subsidiary boards as are necessary te hear and decide discrete issues identified by the Hearing Licensing Board for separate disposition.
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-(2) The Commission is contemplating the selection of the technical members of the Hearing Licensing Board from a wide pool of external and internal candidates, including members of the Comission's Licensing Board Panel. This will ensure the greatest potential-for identifying candidates with the reouisite expertise. The Comission anticipates a three member r
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. Hearing Licensing Board consisting of a lawyer-chairman who is experienced with NRC procedures, and two technical members, one with engineering expertise ar.d one with geoscienca expertise, ano both with a backgrouno in performance assessnci;t.
(3) Encourage the Board to set time limits on cross-examination _if necessary to meet the hearing schedule.
(4) Direct the Boarc to institute the " lead intervenor" I
concept for the proceeding.
I (5)DirecttheBoarctolimitthescopeofre-directand re-cross examination to the issues raised on cross-examination and re-direct examination, respectively.
(6) Encourage the Board and parties to reach agreement on the order of hearing issues, so that related issues can be I
addressed at the same time, and to extent practicable, in a logical sequence.
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'\\ (7)InstructtheNRCstafftorefrainfrombecominginvolved in_ pro'cedural disputes between other parties in which the staff does not have an interest, unless the Hearing Licensing Board
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specifically requests the staff's views on the matter.
(8) The Comission will clearly' define the precise scope of the hearing, outline the appropriate general issue areas to be j
l considered in the proceeding anci define the boundries of the Hearing Licensing Board's jurisdiction in the Notice of j
Hearing.
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t Environmental Impact: Categorical Exclusion The NRC has determined that this proposed regulation is the type of-actiondescribedincategoricalexclusion10CFR51.22(c)(1). Therefore neither an environmental impact statement nor an environmental assessment has been prepared for this proposed regulation.
Paperwork Reouction Act Statement
'This proposed rule contains no information collection requirements and therefore is not subject to the requirements of the Paperwork Reduction Act of1989(44U.S.C.3501etSeq.).
Regulatory Analysis The Commissich has prepared c draft regulatory analysis on this proposed regulation. The analysis examines the costs and benefits of the alternatives considered by the Commision. The-draft analysis is available for inspection in the NRC Public Document Room, 2120 L Street NW (Lower Level), Washington, DC.
Single copies of the analysis may be obtained from B. W. Jones, U.S. Nuclear Regulatory Comission, Washington, D.C.
20555, Telephone: 301-492-1637.
The Commission requests public comment on the draft regulatory analysis.
Comments on the draft analysis may be submitted to the NRC as indicated under
..the ADDRESSES heading.
I
e i Regulatory Flexibility Certification This proposed rule will not have a significant economic impact upon a substantial number of small entities. The amendments modify the Comission's rules of practice and procedures. The license applicant for the HLW repository will be the Department of Energy, which would not fall within the definitier, of small businesses found in section 34 of the Small Business Act, 15 U.S.C. 632, in the Small Business Size Standards set out in regulations issued by the Small Business Administration at 13 CFR Part 121, or in the ARC's size standards published December 9, 1985 (50 FR 50241). Although a few of the interveners in the HLW proceeding are likely to fall within the pertinent Small Business Act definition, the iropact on interveners or potential interveners will not be significant. While interveners or potential interveners will have to meet a higher threshold to gain autission to NRC proceedings and will be required to present a direct case on contentior.s, and thereby incur some additional costs ir, preparir.g for, and participating in, the proceeding, these costs will be minimized by the early availability of information through the LSS and the pre-license application consultation process. Thus, in accordance with the Regulatory Flexibility Act, 5 U.S.C.
605(b), the NRC hereby certifies that this proposed rule will not have a significant economic impact upon a substantial number of small entities.
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! Backfit-Analysis This proposed rule does not modify or add to systems, structures, components, or. design of a production or utilization facility; the design approval or manufacturing license for a production or utilization facility; or the procedures or organization required to design, construct, or operate a production cr utilization. facility.. Accordingly, no backfit analysis pursuant -
'to10.CFR50.109(c)is'requiredforthisproposedrule.
List of Subjects Part 2 - Administrative practice anc procedure, Antitrust, Byproduct material, Classified information, Environmental protection, Nuclear materials, Nuclear power plants ano reactors, Penalty, Sex discrimination, Source material, Special nuclear material, k'aste treatnent and disposal.
For.the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amendeo, the Energy Reorganization Act of 1974, as amended, and 5 U.S.C. 553, the Nuclear Regulatory Commission is proposing the following amendments to 10 CFR Part 2.
PART 2--RULES OF PRAC ICE FOR DOMESTIC LICENSING PROCEEDINGS
- 1. The authority citation for Part 2 continues to read as follovts:
AUTHORITY:
Secs. 161,'181, 68 Stat. 948, 953, as amended (42 U.S.C.
.2201, 2231); sec. 191, as amended, Pub. L.87-615, 76 Stat. 409 (42 U.S.C.
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i-4 2241); sec. 201, ES Stat. 1242, as amended (42 U.S.C. 5841); 5 U.S.C. 552.
i Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104, 105, 68 Stat.-930, 932, 933, 935, 936, 937, 938, es amerded (42 U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 2135); sec. 114f, Pub. L.97-425, 96 Stat. 2213, as amended (42 U.S.C. 10134(f)); sec. 102, Pub. L.91-190, 83 Stat. 853, as amended (42 U.S.C. 4332); sec. 301, 88 Stat. 1248 (42 U.S.C. 5871). Sections 2.102, 2.103, 2.104, 2.105, 2.721 also issued under secs. 102, 103, 104, 105, 183, 189, 68 Stat. 936, 937, 938, 954, 955, as amended (42 U.S.C. 2132, 2133, 2134,2135,2233,2239). Section 2.105 also issued under Pub. L.97-415, 96 Stat. 2073 (42 U.S.C. 2239).
Sections 2.200-2.206 also issued under secs. 186,234,68 Stat.555,83 Stat.444,asamended(42U.S.C.2236,2282);sec. 206, 88 Stat 1246 (42 U.S.C. 5646). Sections 2.600-2.606 also issued under sec. 102, Pub. L.91-190, 83 Stat. 853, as amended (42 U.S.C. 4332). Sections 2.700a, 2.719 also issued under 5 U.S.C. 554. Sections 2.754, 2.760, 2.770, 2.760 also issued under 5 U.S.C. 557. Section 2.,764 ano Table 1A of Appendix C also issued uncer secs. 135, 141, Pub. L.97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161 ).
Section 2.790 also issued under sec. 103, 68 Stat. 936,
.as amended (42 U.S.C. 2133) and 5 U.S.C. 552.
Sections 2.800 and 2.808 also issued under 5 U. sic. 553. Section 2.809 also issued under 5 U.S.C. 553 and sec. 29, Pub. L.85-256, 71 Stat. 579, as amended (42 U.S.C. 2039).
Subpart K
g; i
A also issued under'sec. 189, 68 Stat. 955 (42 U.S.C. 2239); sec. 134 Pub. L.:
97-425,96 Stat.2230(42U.S.C.10154). Subpard L also issued under sec. 189,68 Stat.955(42U.S.C.2239). Appendix A also issued under sec. 6, Pub. L.91-560, 84 Stat. 1473 (42 U.S.C. 2135).. Appendix B also issued under sec.10, Pub.L.99-240,99 Stat.1842(42U.S.C.2021betseq.).
2.-
Section 2.4 is amended by revising the definition of "NRC Persor.nel" to read as follows:
9 2.4 Definitions.
"NRC perscnnel" means (1) NRC employees; (2) for the purpose of $9 2.720, 2.740, and 2.1018 only, persons acting in the capacity of consultants to the Connission,:regardless of the form of the contractual arrangements under which such persons act as corisultants tc the Commission; and (3) niembers of advisory boards, comriittees, sno panels of the NRC; members of boards designated by the Commission to preside at adjudicatory proceedings; and officers or employees of Government agencies, including military personnel, assigned to duty at the NRC.
3.
Section 2.720 is amended by revisirg paragraph (a) and adding paragraph (h)(2)(v)toreadasfollows:
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e, s
23 -
5_ 2.720 Subpoenas.
(a) On application by-any party, the designated presiding officer or, if he or she is not available, the Chairman of the Atomic Safety and Licensing Board Panel, the Chief Administrative' Law Judge, or other designated officer will issue subpoenas requiring the attendance and testimony of witnesses or.the production of evidence. The officer to whom application is made may require a showing of general relevance.of the. testimony or evidence sought or, in the case of a subpoena requested for purposes of'providing cirect testimony pursuant to i 2.1024, a showing of. general relevance.to the contention, and may withhold the subpcene if such a showing is not made, but the officer may not attempt to determine the admistitility of evidence.
(h)
(2)
(v) For purposes of 6 2.1024, the presiding officer may not issue a i
subpoena requiring the testimony of named NRC personnel unless a showing is made that the particular named NRC employee has direct personal knowledge relevant to the contention, and that the testimony sought is not reasonably obtainable from another source.
. 4.
Section 2.1000 is revised to read as follows:
E 2.1000 Scope of subpart.
The rules in this subpart govern the procedure for applications for a license to receive and possess high-level radioactive w6ste at a geologic repository operations area noticed pursuant to 6 2.101(f)(8) or 6 2.105(a)(5) of this part. The procedures in this subpart take precedence over the 10 CFR Subpart G, rules of general applicability, except for the following provisions: il 2.702, 2.703, 2.704, 2.707, 2.709, 2.711, 2.713, 2.715, 2.715a, 2.717, 2.718, 2.720, 2.721, 2.722, 2.732, 2.733, 2.734, 2.742, 2.743, 2.750, 2.751, 2.753, 2.754, 1.755, 2.756, 2.757, 2.758, 2.759, 2.760, 2.761, 2.762, 2.763,2.770,2.771,2.772,2.780,2.781,2.785(a),(b)(1),(c),(d),2.786, 2.767, 2.788, and 2.790.
5.
In s 2.1003 paragraph (h)(2)(iii) is revised to read as follows:
6 2.1003 Submission of material to the LSS.
1 (h)
(2)
Jd F
c,
(iii)' The'LSS administrator shall circulate each evaluation prepared pursuant to paragraph (h)(2)(i) of this section, and the written report preparedpursuanttoparagraph(h)(2)(ii)ofthissection,topotential parties to the high level waste proceeding. Potential parties may submit comments on or objections to the evaluations prepared pursuant to paragraph (h)(2)(i) of.this section, or the report prepared pursuant to paragrcph (h)(2)(ii) of this section, to the LSS Administrator withir. 30 days of
' issuance of the evaluation or report. Comments or objections not filed within this time period are waived.
6.
Section 2.1004 is araended by revising paragraph (d) to read as folicws:
i 2.1004 Amer.diaents and acditions.
(d) Any document that has been incorrectly excluded from the Licensing Support System must be submitted to the LSS Actinistrator by the potential party, interested governmental participant, or party responsible for the submission of the document within two deys after its exclusion has been identified unless some other time is approved by the Pre-license Application Presiding Officer or the Licensing Board established for the high-level wastc proceeding, hereinafter the hearing Licensing Boaro"; provided, however, that
y
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the' time for submittal'under this paragraph will be stayed pending Board action on a motion to extend.the time for submittal.
ia i-L l
7.. Section 2.1006 is aanded by. revising the introductory text to
, paragraph-(b) to read as follows':
l'2.1006 Privilege.
l (b) Any' document for which a claim of privilege is asserted, but is denied ir.whole or in part by the Pre-license Application Presiding Officer or the hearing Licensing Board, must be submitted by the party, interested l.
' governmental participu;t, or potential party that asserted the clain, to-8.
Section 2.1008 is amended by revising paragraphs (c) and (d) to read as
-follows:
I 2
Z___________________________________
___________________1_____.i__.______
_...____.__________________.._____________.__J
~~
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I
( '
'f2.10C8Potentialparties.-
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.(c) The Pre-license Application PresidinD Officer shall, in ruling on a petition for access,-consider the factors set forth~in paragraph (b) of this
.section.
(d)i An;> person whose retitiotrfor access is approved pursuant to paragraph (c) of this.~section shall comply with the regulations set forth in this subpart, including 6 2.1003' ant' agree to comply uith the orders of the Pre-license Application Presiding Officer desianated purs'iant-to'! 2.1010.
9.
Section 2.1'10 is amended by revising the heac'ing, paragraph (a), t!.e
. introductory language to paragraph (b), paragraphs (b)(t ), an.'(e),andby addin;anewparagraph(f)toreadasfollovs:
[ 2.1010 Pre-license application presiding officer.
(a)(1) The Commission may designate one or more members of the Commission, or an atomic safety and licensing board, or a named officer who has been celegated final authority on the natter (Pre-license Application
p-u i Presiding' Officer) to rule cn all petitions for access to the Licensing
.. Support System submitted under 6 2.1008; disputes over the entry of documents during the pre-license application phase, including disputes relating to the LSS Administrator's decision on' substantial compliance pursuant to 6 2.1003(h);
discovery disputes; disputes relating to the design and development of the Licensing Support System by DOE or the operation of the Licensing Support System by the LSS Administrator under $ 2.1011, including disputes relating to the iriiplement6 tion of the recorriendations of the LSS Advisory Review Panel
. established under i 2.1011(e).
(2) The Pre-license Application Presiding Officer shall be designated six months before access to the Licensing Support Systen is scheduled to be available.
(b) The Pre-licer.se Application Presiding Officer shall rule on any clcim of document withholding to determine-I i
1
F
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j
]
'b (fs) Whether the material should be disclosed under a protective order containing such protective terms and conditions (including affidavits of non-disclosure) as may be necessary and appropriate to limit the disclosure to potential participants, interested governmental participants and parties in the proceedin:, or to.their qualified witnesses and counsel. When Safeguards Information protected fron disclosure under section 18.7 of the Atomic Energy Act, as amended, is received and possessedby a potential party, interested governmental participant, or party, other than the Commission staff.it shall also be protected according to the requirements of L 73.21 of this chapter. The Pre-license Application Presiding Officer may also prescribe such additional procedures as will effectively safeguard and prevent disclosure of Saferuards Information to unauthorized persons with minimum impairment of the procedural rights which would be available if Safeguards Information were not involved.
In addition to any other sanction that r.ay be imposed by tre Pre-license Application Presiding Officer for violation of an order issued pursuant to this paracraph, violation of an order pertaining to the disclosure of Safeguards Information protected from disclosure under section 1*7 of the Atonic Energy Act, as amended, may be subject to a civil penalty imposed pursuant to i 2.205. For the purpose of imposing the criminal penalties contained in section 223 of the Atomic Energy Act, as amended, any order issued pursuant to this paragraph with respect to Safeguards Information shall be deemed an order issued under section If.lb of the Atomic Energy Act.
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(e) The Pre-license Application Presiding Officer shall possess all the ceneral' powers srecified in 65 2.721(d) and 2'.718.
'(f) The Commissien, in ' designating the Pre-license Application Presiding-l' Officer in accordance with paragraphs (a)(1) and (2) of. this section, shall specify1the jurisdiction 'of the' Presiding Officer.
IC'.- Secticr.I.1'12 is auended by by revising carar,raphs (c) and (d) to read L
2 as f0110ts:
1 2.1C12 Compliance.
(c) The Hearing Licensinr Board may not make a finding of substantial and tinely-compiiance purs'.cnt to paragraph (b) of this'section for any nerton who is not in compliance vith all applicable orders of the Pre-license Application Presiding Officer established pursuant to 5 2.1010 (d) Access to the Licensing Support System may be suspended or terminated by the Pre-license Application Presiding Officer or the llearing Licensing Board for any potential party, interested governmental participant or party who is in noncompliance eith any applicable order of the Pre-license i
Application Presiding Officer or the liearing Licensing Board or the requirements of this subpart.
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l L11.TInlj2.1014,-paragraphs-(a)(2)(iii),(a)(3),and(a)(4)arerevised incparagraphs,(c)(4)-and(h)areaddedtoreadas~~follows:
}s'2.1014-Intervention.
L p
~(a)
.(2)
,(iii) With respect to each contention; (A)
A, specific' statement of the issue of law or fact, to be raised 1
or controverted.
(B) A brief. ex;lanation of the bases of the contention.
(C) A concise statement of the alleged facts or expert opinion that support the contention and on which the petitioner intends to rely in proving the contention at the hearint, together with references to those L
specific sources and documents of which the petitioner is aware and on
. hich the petitioner intends to rely to establish those facts or expert w
opinion.
(D) Sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. This showing must include references to the specific documentary material that provides a basis for the contentict., or if the petitioner believes that any
g 5
o l documentary naterial fails to contain information on a relevant natter as required by la,, the identification of each failure and the supporting reasons for the petitioner's belief.
In determining whether a genuine dispute exists on a material issue of lau or fact, the Commission or the presiding officer shall consider whether the contention, if proven, would be of no consequence in the proceeding because it would not entitle the petitioner to relief.
(3) Any petitioner who fails to satisfy paragrap! (a)(2)(iii) of this section with respect to at least one contention may not be permitted to participate as a party.
(4) Any party may amend its contentions specified in paragraph (a)(2)(ii) of this section. The hearing Licensing Board shall rule on any petition to amend such contentions based on the balancing of the factors specified in paragraph (a)(1) of this section, and a showing that a significant safety or environmental issue is involved or that the amended contention raises a material issue related to the performance evaluation anticipated by El 60.112 and 60.113 of this chapter.
(c)
f'W 4
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u
-.-(l:)LiTheif ailure of the petitioner. to participate as a potential. party:in :the i Licensing Support System.
a.
(h) ~If the Commission.or presiding officer designated.to rule.on the-
- admissibility of contentions determines that any of.the admitted contentions constitute pure issues of:lau, those contentions must be decided on the' basis-of Lriefs or. oral' arpument according. to a schedule determined by the -
Con.iission'or tresiding officer.
- 15.
In ! 2.1C15, the introductory text of paragraph (b) ar.c' paragraph L
.(b)(1)' are. revised.to reac' es follows:
-h 2.101E Appeals.
l
-(S) A notice of appeal from (1) a Pre-license Application Presiding Officer order issued pursuant to E 2.1010, l
47 m 13. - Section 2.1022 is amended by. revising paragraph (a)f to read as follons:
'l 2.1022 Second prehearing conference.
(a) The Commission or the Hearing Licensing Board in a proceeding on an application _for a license to receive and possess high-level radioactive waste at a geological respository operations area shall direct the parties.
interested governmental participants, or tteir counsel to appear at a srecified tir.ie and place not later than thirty days after the Safety Evaluation Report is issued by the NRC staff for a conference to consider:
-(1).. Simplification, clarification, and specification of the issues; The obtainin' of stipulations and admissions of fact and of the contents (2) and. authenticity of documents to avoid unnecessary proof; i
.(3)
Identification of witnesses and the limitation of the number of expert 1
witnesses, and other steps to expedite the presentation of evidence; 1
(4) The setting of a hearing schedule; 1
(5) Establishing a discovery schedule for the proceeding taking into account the objective of meeting the three year time schedule specified in Section 114(d) of the !!uclear Waste Policy Action of 1982, as amended, 42 U.S.C. 10134(d); and a __ _ _
~6; ' iA
+
,3g,.
(6) 'Such.other. matters:as may aid in the orderly disposition of the-
. proceeding.
- 14. 'Section 2.1024 is added to Subpart J to read as follows:
['
2.1#2/ Evidence.
A party who sponsors a contention ender b 2.1'.14 is iequired to present direct testirony in suprort of the contention.
- 15. Section 2 1;25 is acded to Stbpart J to reac as follous:
L 2.1025 h thority of *residinc officer to dispose of certain issues on_the ; leadings.
(a) Any party to a proceedinc may move, with or without supporting affidavits, for a decision by the presiding officer in that party's favor as to all or.any part of the matters involved in the proceedint;. The moving party shall annex to the notion a separate, short, and concise statement of the material facts as to which the moving party contends that there is no cenuine issue to be heard. Motions may be filed at any time. Any other party may serve an ensuer supporting or opposing the motion, uithin twenty (20) days after sertice of the motion.
If the motion has accompanied by supporting
gy
' 4
' affiCavits, any.snswer opposing the notion raust' be accompanied by affidavits 1"
- in support of such opposition. The party shall annex to any answer opposing the motion a separate, short, and concise statement of the material facts as to which-it is contended there exists a genuine issue to be heard. All material ~ facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement reouired to be served by the opposing party. The opposing party may, within ten (10 days 'after service, respond' in writing to new f acts and arguments
' presented in any statement filed in support of the motion. 1;o further supporting statements or responses thereto may be entertained. The presiding officer raay dismiss summarily or hold in aheyance notions filed shortly before the hearing commences or during the. hearing if the other parties or the presiding officer would be required to divert substantial-resources from the hearing in or6er to respond adequately to the motion.
(D) Affidavits uust set forth such facts as world be admissible in evidence and must show affirmatively that the affitnt is competent to testify-to the r.atters stated therein. The presidinc officer nay permit affidavits to be supplemented or opposed by depositions, answers to interrogatories or further affidavits. When a motion for summary decision is made and supported as provided in this section, a party opposing the motion may not rest upon the mere allegations or denials of his or her answer; his or her answer by affidavits or as otherwise provided in this section must set forth specific facts showino that there is a genuine issue of fact.
If no such answer is filed, the decision sought, if appropriate, must be rendered.
g-.
Y,,,y V
.- 37 (c) The presidin's officer shall render the decision sought if the l
' filings ~in the proceeding, depositions, answers to interrogatories, and admissions on file, together with the statements of the' parties'and the affidavits, if any,-show that there is no genuine issue as-to any material fact and that the-moving' party is entitled to a decision as a matter of law.
- Ho :ever, in any proceeding involvino a construction authorization for a geologic repository o;1erations area, the procedure described in this section
.may !e used only for the. determination of specific subordinate issues and may not be used to determine the ultinate issue as to whether the authorization must le issued.
IC. Section 2.1026 is added to Subpart J to read as follows:
1 2.1026 Schedule.
(a) Subject to pararraphs (h) and (c) of this section, the Hearing Licensing board shall adhere to the schedule set forth in Appendix D of this Part.
(b)(1) Pursuant to i 2.711, the Hearing Licensing Board may approve extensions of no more than 15 days beyond any required time set forth in this subpart for a filing by a party to the preceeding. Except in the case of 1
exceptional and unforeseen circumstances, requests for extensions of more than I? days nust 'ce filed no later than 5 days in advance of the required time set forth in this subpart for a filing by a party to the proceedinn.
n
- , ;
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-f
+
-:38 l
'.'(2)
Extensions '.eyond 15 days must be referred to the Commission. -If t
the. Commission.does not' disapprove the extension within 10 days of receiving the request, the extension will be effective.
s (c)(1). The Board'may delay'.the issuance of a Board order up to thirty days.
L beyond the time' set forth for the issuance in Appendix D.
i(2)
If the Board anticipates that the issuance of an order will not
-; occur'until after the thirty day extension specified in paragraph (c)(1).of
~
'this section, the Board shall notify the Commission at least ten days in 1
advance of the scheduled date for the milestone and provide a justification fortheLdelay.
, 17.
Section 2.lf27 is added to Subpart J to read as follows:
'!. 2.1027 Sua Sponte.
i In any initial or appellate decision in a proceeding on a application to i
. receive and possess waste at a geologic repository operations area, the Board shall make findings of fact and conclusions of law on, and otherwise nive consideration to, only those matters put into controversy by the parties and.
- determined to be litigable issues in the proceeding.
l l
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4 18. Appendix D is added to 10 CFR Part 2 to read as follows:
/.ppendix D - Schedule for the Proceeding on Applications for a License to Receive and Possess High-Level Radioactive Waste at A Geological Repository Operations Area i
' Day, Regulation (10'CFR)
Action 0
2.101(f)(8)
Federal-Register Notice of Hearing 2.105(a)(5) l 30 2.1014(a)(11 Petition to. intervene / request for hearing,s/ contentions 2.715(c)
Petition for status as interested governnent Participant E Interested j.
Governnent Participant 50 2.1014(b)
Ansrers to inter $ention & Interested Government Participant petitions 70 2.1:21 1st Pre! earing Conference 100 1st Prehearing Conference Order:
identifies participants in proceeding, admits contentions, and sets discovery and other schedules 2.1"18(')(1)
De70sition discoverv begins 2.1919 110 2.1015(b)
Appeals from ist Prehearing Conference Order, w/ briefs 120 2.1015(b)
Briefs in opposition to appeals 100 Appeal Board order ruling on appeals from ist Prehearing Conference Order 548 NRC staff issues SER 578-2.1022 2nd Prehearing Conference 608 2nd Prehearing Con #erence Order: finclizes issues for hearing and sets schedule for ;. refiled testimon.v and hearing
.a
- 4C -
t18 2.1015(b)
Apreals from 2nd Prehearing Conference Order, w/ briefs 628 2.1015(b)
Briefs in opposition to apreals 658 Appeal Board order ruling on appeals from 2nd Prehearing Conference Order 660 2.102C (set by LB)
Final Motions for summary disposition 680 2.102E Replies to final motions for summary disposition 690 Supp. Info.
Discovery complete 7C0 Licensine Board order on final notions for summary disposition 710 2.1015(b)
Appeals f rom final senoary disposition order, w/ briefs 720 Evidentiary hearing begins 2.1015(b)
Briefs in o; position to appeals from final sumr.:ary disposition orders 750 Apneal Board order on apreals frou final sumr.iary disposition orders 810 Evidentiary hearing ends 840 2.754(a)(1)
Applicant's proposed findings 850 2.754(a)(2)
Other parties' (except t'RC staff's) proposed findings 860 2.754(a)(2)
NRC staff's proposed findings BE5 2.754(a)(3)
Applicant's reply to proposed findings 955 2.760 Initial Decision 9ES 2.788(a)
Stay motions to Appeal Board 2.762(a)
!!otices of Apceal 2.1E15(c) 9:'5 2.788(d)
Reclies to stay motions
______-_ L
v pMN *,
- 1.,.
.41 L.;
h*
995 Appeal Board' ruling on stay motion 2.762(b)
Appellant's briefs-6
-1 05.
2.788(a)
Stay motions to' Commission 1015 2.788(d)
. Replies to stay motions
[-
1025 2.762(c)
Appellee's brief 1035 2.762(c)
HRC staff brief 1055 2.1023 Completion of ;' MSS and l
Supp. Info..
Commission su.ervisory revieu; Commission ruling on any stay
[
motions;-issuance of construction E
authorization; l'WPA 3-year period tolled 3065.
2.763 Oral argument on appeals 112!
Appeal. Board decision 1140 2.1015(e)
Petitions for Commission review 2.786(b)(1)
~
11L0.
2.78?(b)(3)
Replies to petitions Dated at Rockville, Maryland, this day of 1989.
For
'1e fluclear Regulatory Commission.
^"
6 Samue' K Chilk, Secretary qf the Commission.
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