ML23151A373

PR-002 - 54FR17961 - Informal Hearing Procedures for Nuclear Reactor Operator Licensing Adjudications

ML23151A373
Person / Time
Issue date:	04/26/1989
From:	Chilk S NRC/SECY
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PR-002, 54FR17961
Download: ML23151A373 (1)

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{{#Wiki_filter:DOCUMENT DATE: TITLE: CASE

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KEYWORD: ADAMS Template: SECY-067 04/26/1989 PR-002 - 54FR17961 - INFORMAL HEARING PROCEDURES FOR NUCLEAR REACTOR OPERATOR LICENSING ADJUDICATIONS PR-002 54FR17961 RULEMAKING COMMENTS Document Sensitivity: Non-sensitive - SUNSI Review Complete

STATUS OF RULEMAKING PROPOSED RULE: PR-002 RULE NAME: INFORMAL HEARING PROCEDURES FOR NUCLEAR REACTOR OP ERATOR LICENSING ADJUDICATIONS PROPOSED RULE FED REG CITE: 54FR17961 PROPOSED RULE PUBLICATION DATE: 04/26/89 NUMBER OF COMMENTS: 7 ORIGINAL DATE FOR COMMENTS: 06/26/89 EXTENSION DATE: 08/10/89 FINAL RULE FED. REG. CITE: 55FR36801 FINAL RULE PUBLICATION DATE: 09/07/90 NOTE~v ON' *Fi lAL ACTION IS UNDETERMINED PER REGULATORY AGENDA OF 10/89. STATUS - COMMISSION BY 4-0 VOTE APPROVED FINAL RULE; SEE SRM 8/22/90 F RULE FILE LOCATED ON P-1. TO FIND THE STAFF CONTACT OR VIEW THE RULEMAKING HISTORY PRESS PAGE DOWN KEY HISTORY OF THE RULE PART AFFECTED: PR-002 RULE TITLE: -INFORMAL HEARING PROCEDURES FOR NUCLEAR REACTOR OP EAATOR LICENSING ADJUDICATIONS OPOSED RULE SECY PAPER: 89-076 FINAL RULE SECY PAPER: 90-255 CONTACT!: PAUL BOLLWERK CONTACT2: KARLA SMITH PROPOSED RULE DATE PROPOSED RULE SRM DATE: 03/22/89 SIGNED BY SECRETARY: 04/20/89 FINAL RULE DATE FINAL RULE SRM DATE: 07/19/90 SIGNED BY SECRETARY: 08/31/90 STAFF CONTACTS ON THE RULE MAIL STOP: 15 B18 MAIL STOP: PHONE: 492-1634

DOCKET NO. PR-002 (54FR17961) DATE DOCKETED 04/21/89 05/30/89 06/26/89 06/27/89 06/27/89 06/28/89 06/29/89 06/29/89 06/30/89 07/05/89 07/05/89 07/05/89 08/31/90 In the Matter of INFORMAL HEARING PROCEDURES FOR NUCLEAR REACTOR OP ERATOR LICENSING ADJUDICATIONS DATE OF TITLE OR DOCUMENT DESCRIPTION OF DOCUMENT 04/20/89 05/23/89 06/26/89 06/26/89 06/26/89 06/27/89 FEDERAL REGISTER NOTICE - INFORMAL HEARING PROCEDURES FOR NUCLEAR REACTOR OPERATOR LICENSING ADJUDICATIONS COMMENT OFF. G. "CHIEF" DAVIS ( COMMENT OF FIVE UTILITIES (NICHOLAS REYNOLDS, ESQUIRE) (

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COMMENT OF NUMARC (JOE COLVIN, VICE PRESIDENT) ( COMMENT OF YANKEE ATOMIC ELECTRIC COMPANY (DONALD EDWARDS, DIRECTOR) (

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COMMENT OF COMMONWEALTH EDISON (M. H. RICHTER, ADMINISTRATOR) (

5) 06/26/89 JIM PETERSON OF THE PROFESSIONAL REACTOR SOCIETY REQUESTS A 30 DAY EXTENSION OF THE COMMENT PERIOD 06/27/89 DEBORAH CHARNOFF OF SHAW, PITTMAN, POTTS &

TROWBRIDGE REQUESTS AN EXTENSION OF THE COMMENT PERIOD UNTIL JULY 3, 1989 06/23/89 COMMENT OF PHILADELPHIA ELECTRIC COMPANY (E. P. FOGARTY, MANAGER) (

6) 07/03/89 THE NRC HAS EXTENDED THE COMMENT PERIOD TO AUGUST 10,1989 07/03/89 COMMENT OF PROFESSIONAL REACTOR OPERATOR SOCIETY (DEBORAH B. CHARNOFF, ESQUIRE) (

7) 07/05/89 HAND DELIVERED LETTER FORWARDING CORRECTED COPY OF COMMENT #7. THESE ITEMS ACTUALLY ARRIVED BEFORE THE ORIGINAL MAILED LETTER AND THUS WERE UTILIZED 08/31/90 FEDERAL REGISTER NOTICE - FINAL RULE

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DOCKET NUMBER PR --i1 PROPOSED RULE 2 (5LJ FR. 17r~iJ* DOCKETED [ 7 590.LJa~~c NUCLEAR REGULATORY COMMISSION *9 tr' 31 r 2 :53 10 CFR Part 2 RIN 3150-AD17 Informal Hearing Procedures for Nuclear Reactor Operator Licensing Adjudications AGENCY: Nuclear Regulatory Commission. ACTION: Final rule.

SUMMARY

The Nuclear Regulatory Commission (NRC) is amending its regulations to provide rules of procedure for the conduct of informal adjudicatory hearings in nuclear reactor operator licensing proceedings. The Atomic Energy Act of 1954 requires that the NRC, in any proceeding for the granting, suspending, revoking or amending of any license afford an interested person, upon request, a hearing." This final rule would include reactor operator l icensing proceedings under the informal hearing procedures already established for materials licensing proceedings. EFFECTIVE DATE: October 9, 1990. FOR FURTHER INFORMATION CONTACT: Roger Davis, Senior Attorney, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555, Telephone (301) 492-1600. SUPPLEMENTARY INFORMATION: I.

Background

On April 26, 1989 (54 FR 17961), the NRC published in the Federal Register proposed amendments to its Rules of Practice at 10 CFR Part 2. The amendments make the informal adjudicatory procedures set forth in 10 CFR Part 2, Subpart L, applicable in proceedings for the granting,

licensee-initiated amendment of a reactor operator or senior reactor operator license. However, the amendments provide for the use of the formal adjudicatory procedures set forth in 10 CFR Part 2, Subpart G, in any reactor operator licensing proceeding that is initiated by a notice of hearing under_ § 2.104, a notice of *proposed action under§ 2.105, or a request for hearing under Subpart B of ro CFR Part 2 on an order to show cause, an order for modification of, license or a civil penalty. On July 10, 1989 (54 FR 28822), the NRC extended the date for submission of connents on the proposed amendments to August 10, 1989. Section 189a of the Atomic Energy Act of 1954 (AEA) :(42 U.S.C. 2239(a)) 9 p_rovides t.hat in any'proceedirig for the granting, suspending, revoking, or amending of any license, the NRC shall grant a hearing upon the request of -any person whose interest may.be affected by the proceeding. Among the licenses issued by the NRC are those for operators and senior operators of nuclear,reactors (AEA Section* 107*, 42 U.S.C. 2137'; 10 CFR Part 55). The Corrmi ss ion's rules of pr act fee generally pro vi de for two types of hearing procedures for licensing proceedings -- formal and informal. Under 10 CFR Part 2, Subpart G, those requesting a hearing with respect to a-reactor licensing action or any agency enforcement activitj affecting a

• license are generally pro*vided a formal, trial-type hearing conducted in accordance with the provisions of the Administrative Procedure Act, 5 U.S.C.

554-557 and 10 CFR Part 2, Subpart G. On the other hand, a request for a hearing regarding an NRC mater1als_ lic~nsing action generally entitles an interested person to an fnformal, legislative-type hearing in accordance with 10 CFR Part 2, Subpart L. NRC regulations currently do not specify the type of hearing to be 2

afforded in the event that an interested person, including an applicant for a reactor operator license or a licensee, requests a hearing with regard to agency action concerning a reactor operator license. Previously, the Conrnission has declared in individual orders responding to operator hearing requests that an applicant for an operator license whose application is denied is entitled only to an informal hearing in accordance with procedures like those now embodied in Subpart L..L_g., David W. Held {Senior Operator License for Beaver Valley Nuclear Power Station, Unit 1), Docket No. 55-60402 (Comm. Aug. 7, 1987). In the wake of NRC's adoption of Subpart L {February 28, 1989; 54 FR 8269), the Commission decided that the Coll111ission's regulations should reflect the practice followed in the individual orders. II. Public Conrnents and Commission Responses The Commission received seven convnents representing a broad spectrum of interested persons. Commenters included three utilities, a law firm representing five utilities; the Nuclear Management and Resources Council {NUMARC), a licensed senior reactor operator and a law firm representing the Professional Reactor Operator Society {PROS). All comments are available for inspection and copying in the agency's Public Document Room, 2120 L Street, NW. (Lower Level), Washington, DC. One utility and a law finn representing five utilities expressed general support for specification of the informal adjudicatory procedures that will apply in reactor operator license proceedings, but deemed it necessary or desirable that the amendments explicitly grant applicants and licensees access to formal adjudication upon a showing of good cause or special circumstances. NUMARC affirmed the rationale for the proposed amendments, but nonetheless deemed desirable the application of Subpart G to hearings 3

concerning the denial of an initial or renewal application. These co1T111enters also suggested certain changes in P.rovisions of the existing, informal adjudicatory rules under Subpart L insofar as they would apply to reactor operator licensing proceedings. One utility found the NRC's Statement of Consideration inadequate and urged renotice either justifying the amendments more clearly or proposing adoption of formal procedures for all operator license proceedings. Two other commenters, a senior reactor operator and the law firm representing PROS, opposed the amendments as contrary to the due process rights of licensed reactor operators. One* utility wholly endorsed the proposed amendments. After considering all convnents, the Commission, with one exception, is issuing the amendments as proposed. In response to the comments, the Commission has explicitly extended to the initial or renewal applicant who is issued a notice of proposed denial or a notice of denial permission to includ~ in his or he~ request for hearing a request that the presiding officer recommend authorization of other procedures for the proceeding. This request must include a statement of the special factual circumstances or i ssµes supporting other hearing p'rocedures.

• At the outset, it is useful to note some of the highlights of the Co111T1ission's informal adjudicatory procedures.

Within thirty days after a presiding officer's entry of an order granting a request for a hearing, NRC files in the docket a hearing file consisting of the application and any relevant NRC report and correspondence between the applicant and the NRC (10 CFR 2.1231). Thereafter, the parties are afforded an opportunity to submit written presentations of their arguments and supporting written evidence (10 CFR 2.1233{a)). These presentations are to be made under oath 4

or affirmation. lg_. In addition, the presiding officer is empowered to submit written questions to the parties to be answered in writing, i_g_., and to issue subpoenas for attendance and testimony at hearings and for production of ~ocuments or things (10 CFR 2.1209(h)). Upon determining that it is necessary to create an adequate record for decision, the presiding officer may also allow or re-quire oral presentations, including testimony by witnesses, under oath and stenographically recorded (10 CFR 2.1235(a)-(b)). The presiding officer conducts examination of the witnesses and may allow the _parties to propose questions for posing to the witnesses..IQ. Finally, the presiding officer may reconJ11end to the Commission that procedures other than the specified informal procedures be used in the proceeding (10 CFR -2.1209(k)). A. General comments.

1.

Formal hearings are required for licensees if requeste.d. Two commenters opposed the proposed amendments on the ground that licensed operators are entitled to tr.ial-type hearings under the Constitution. The licensed senior reactor operator viewed the proposed amendments as both permitting the revocation of a license for any reason or whim and eliminating the right to a formal hearing. The comnenter apparently overlooked the specific standards in IO CFR Part 55 under which licenses are issued, renewed, modified, suspended, or revoked. The convnenter also does not seem to appreciate that: 1. the proposed amendments provide for formal adjudication in proceedings that would involve revocation, suspension, or modification of a license; and 2. Subpart L already authorizes a presiding officer's recommendation that the Conmission approve other procedures in a particular proceeding otherwise conducted under Subpart L procedures. 5

The law firm representing PROS argued that the informal procedures are insufficient for actions that could deprive an operator of his or her property interest in the continued validity of the license and his or her liberty interest in pursuit of a career as reactor operator. PROS would support the amendments only if they were modified to make informal procedures available as an option to an operator in lieu of formal proceedings. Another commenter, NUMARC, believed that the codification and use of informal hearing procedures for the granting, renewal or licensee-initiated amendment of a reactor operator license would provide fair, efficient, and effective adjudication. Nonetheless, NUMARC suggested that it would be desirable for the NRC to apply Subpart G to proceedings concerning the denial of an initial or renewal application because of the significance of this denial for the operator. The Commission believes that these convnenters similarly fail to give sufficient consideration or weight to the specification of circumstances in which formal procedures will apply and to the authorization of the presiding officer to recommend other than informal procedures in appropriate cases. Moreover,_ these coR111enters do not scrutinize closely the type of affected individual interests or the general types of inquiries in the adverse actions at issue. A party's entitlement to a hearing is determined by the balancing of three factors:

1. the private inte.rest affected by official action; 2. the probable value of additional or different procedures; and 3. the Government's interest, including the function involved and the fiscal and administrative burdens of additional or different procedural requirements.

Mathews v, Eldridge. 424 U.S. 319, 335 (1976). After reviewing and weighing these factors, the Commission remains convinced that the informal adjudicatory procedures set forth in Subpart Lare appropriate for the reactor operator 6

licensing proceedings to be covered by this rule. This conclusion follows from a number of observations and findings, but in particular the following:

1. the nature of the interests at stake; 2. the Commission's provision of a meaningful hearing at a meaningful time; 3. the appropriateness of informal procedures for resolution of the typical inquiries in the proceedings to be held under Subpart L; and 4. the opportunity to obtain other procedures when they are necessary for a fair resolution of critical factual issues.

The Commission recognizes that substantial personal interests may be affected by the decision to grant or deny an application for a reactor operator license. However, the nature of the affected interest is limited by virtue of the fact that reactor operator license applicants are subject to broad Commission powers to grant or deny, and operator licenses permit performance of the licensed functions only in a specific facility (10 CFR 55.53(b)-(c)), where the licensee of the facility has certified to the need for the position and requested examination of the applicant for a license (10 CFR 55.3l(a)(3)-(4)). The interest at issue is also somewhat limited by the fact that reactor operator licenses expire six years after issuance with no guaranteed right to renewal (10 CFR 55.55). Moreover, the applicant for initial issuance of an operator or senior operator license does not face a deprivation of a vested or existing position or status. An individual seeking renewal of an existing license may feel that he or she has been deprived of a Jested or existing position or status, but there is no guaranteed right of renewal. Therefore, it is not certain that protected interests are always or generally at stake in proceedings concerning the issuance or renewal of a Part 55 license. However, the Co111T1ission will nonetheless assume for purposes of further discussion that they are. 7

The key question remains as to whether the Commission is providing less procedure than due process requires under the circumstances. The Conrnission is providing a hearing. And, it is clear that due process does not require full trial-type procedures in every case. "The fundamental requirement of due process i~ the opportunity to be heard 'at a meaningful time and in a meaningful manner.'" Mathews v. Eldridge, 424 U.S. at 333 (quoting Armstrong v. Manzo. 380 U.S. 545, 552 (1965)). The Supreme Court has repeatedly emphasized that "'[d]ue process,' unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and Circumstances." Id. at 334 (quoting Cafeteria Workers v. McE]roy, 367 U.S. . 886, 895 (1961)). Thus, "'[d]ue process is flexible and calls for such procedural protections as the particular situation demands.'" IQ: (quoting Morrissey v. Brewer, 408 U.S. 471, 482 (1972)). The nature of the relevant inquiry is central to the evaluation of the fairness and reJiability of the existing ~rocedures and the probable value, if any, of additional safeguards (lg. at 343). Arguing that the Commission should bolster initial and renewal applicants' access to formal adjudication, one conrnenter emphasized that the requirements for a Part 55 license necessitate subjective evaluations on such issues as -health, and administration of the written examination and operating test. See Section II-B-2-a of this notice. The Conrnission does believe that the typical issues in reactor operator proceedings for the granting or renewal of licenses are likely to concern performance on a written examination or an operating test. As set forth in Part 55,'however, these examinations test knowledge, skills and abilities pertaining to specific technical and scientific matters (10 CFR 55.4l(b), 55.43(b), 55.45, 55.57 and 55.59(a)). In addition, the Convnission 8

has issued standards for examination and grading of the tests..ill NUREG-1021.1 While some parts of these examinations may be less amenable to "objective" evaluation than other parts, e.g., short answer as opposed to multiple choice questions, the subject matter still falls within the Commission's special expertise and judgment. Even when substantial factual issues arise regarding performance on a question or problem concerning technical or scientific knowledge or judgment, oral trial-type presentation may not be required. See Kerr-McGee Corp. {West Chicago Rare Earths Facility), CLI-82-2, 15 NRC 232, 259-60 (1982), aff'd sub nom. City of West Chicago v. NRC, 701 F.2d 632 (7th Cir. 1983), and cases cited therein. Indeed, in these types of cases, the right to cross-examination may serve little or no purpose, and result only in futility or delay. See Buttrey v. United States, 690 F.2d 1170, 1182 (5th Cir. 1982). The possibility or existence of professional disagreement over an applicant's health, for example, does not suffice to create a specter of questionable credibility or veracity. lli. Mathews v. E]drjdge, 424 U.S. at 344. Moreover, an applicant who is denied a license because of failure to pass the written examination or operating test, or both, may reapply two months after the date of denial, and make successive applications at other intervals thereafter (10 CFR 55.35). These opportunities for reapplication in and of themselves may satisfy the purposes of a hearing if one is otherwise required. See Tyler v, Vickery. 517 F.2d 1089 (5th Cir. 1975). For the renewal applicant, the risk of error and the 1Copies of NUREGS may be purchased from the Superintendent of Documents, U.S. Government Printing Office, P.O. Box 37082, Washington, D.C. 20012-7082. Copies are also available from the National Technical Information Service, 5285 Port Royal Road, Springfield, VA 22161. A copy is also available for inspection and/or copying at the NRC Public Document Room, 2120 L Street, NW. (Lower Level), Washington, DC. 9

need for other procedures is also reduced by the fact that the Commission will permit the licensed operator to take the NRC requalification examination three times before denying the renewal application on the basis of the licensee's failure of the NRC requalification examination. 2 Recolllllendation and approval of other procedures such as cross-examination may occur, for example, where resolution of substantial factual issues involving witness credibility, bias or veracity is essential to the determination of a license renewal. However, the Commission expects that the broad powers of a presiding officer in Subpart L proceedings will permit fair, correct and efficient decision-making in typical reactor operator licensing proceedings. In any event, the Commission need not provide formal adjudication for all hearings requested by initial or renewal applicants simply because some hypothetical cases not before the Commission arguably may require the use of formal procedures. See FDIC v. Mallen, 486 U.S. 230, 247-48 (1988). The Commission's conclusion that Subpart L procedures are sufficient for proceedings concerning the granting and renewal of reactor operator licenses is not altered by the.emphasis of one commenter, the law firm representing five utilities, on the rarity of hearings concerning Part 55 licenses and the relatively smaller volume of Part 55 licenses as compared to material licenses. Despite the history of a small number of reactor operator licensing hearings, reduced cost and delay while-maintaining -fair procedures should remain important objectives for both the Commission and the parties. In addition, the cost of one or more formal hearings in reactor operator 2NUREG 1021, Rev. 6, ES-605 (June 1, 1990). 10

licensing cases could in fact prove substantial. In each formal proceeding, a three-member licensing board or an administrative law judge must be appointed, and with that would also generally follow the costs of formal discovery, prefiled testimony and a trial-type hearing with oral testimony of the witnesses and cross-examination. For instance, real costs associated with formal, trial-type adjudications arise from needs for court reporters, transcripts, rent for hearing facilities, 3 and travel expenses for necessary agency personnel. Moreover, the conunenter conceded that it is difficult to generalize from the figures, considering the fact that the Commission did issue,798 Part 55 licenses and processed 1750 renewals during 1987.

2.

Differences between challenges to proposed enforcement action and challenges to the denial of the granting or renewal of a license. One commenting utility requested further justification of the Corrmission's decision to grant formal hearings in proceedings resulting from proposed enforcement action, but informal hearings in proceedings concerning the denial of the issuance or renewal of a license. It has been a long-standing Commission policy to provide the opportunity for formal adjudication regarding the Co1T1Tiission's enforcement actions affecting licenses. This should not come as a surprise in light of the severity and potential stigma of Commission-initiated action for revocation or suspension of a license, or a civil penalty, as well as the propriety of formal procedures for adjudication of such underlying issues a~ a material false statement and willful violation of a rule or regulation (See 10 CFR 55.61). As noted above, the Co1T1Tiission 3Pursuant to NRC policy, the trial-level proceedings conducted in formal

• subpart G adjudications are usually held near the applicant or licensee involved, and this often requires renting a hotel conference room or similar facility.

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does not contemplate that the typical grounds of denial of an initial or renewal application will generally involve these types of issues. B. Conments relating to specific provisions of subpart L.

1.

Proposed§ 2.1201--Scope of subpart. The law firm representing PROS declared that it was not possible to discern the circumstances to which the proposed rule would and would not apply. In particular, this commenter felt that proposed§ 2.120l(b) was extremely vague. Other co11111enters did not appear to have this difficulty. The Commission sees *no need for any change in the proposed amendments, but will explain briefly the application of the amendments. Section 2.120l(a) clearly provides that the rules of Subpart L will govern procedures in an adjudication initiated by a request for a hearing in a proceeding for the granting, renewal, or licensee-initiated amendment of an operator or senior operator licensi. On the other hand, the proposed amendment of§ 2.120l(b) provides that the formal procedures of Subpart G will govern an adjudication regarding an operator or senior operator license that arises from a request for hearing under Subpart 8 of 10 CF~ Part 2 on an order to show cause, an order for modification of license, or a civil penalty. An order to show cause under Subpart 8 is the mechanism by which the Co11111ission would generally act to revoke or suspend a license. Thus, the Commission contemplates that the formal procedures of Subpart G will govern proceedings to revoke or suspend an operator or senior operator license subject to Part 55. The proposed amendment of§ 2.120l(b) also would make the formal procedures set forth in Subpart G applicable to an adjudication initiated by a notice of hearing issued under§ 2.104, or a notice of proposed action under§ 2.105. The 12

Commission's construction of§§ 2.104 and 2.105 is set forth in West Chicago, 15 NRC at 244-46. Application of these provisions to reactor operator licensing under Part 55 would arise if the Commission determined that the public interest required a formal hearing on a particular application for, or amendment to, a reactor operator or senior operator license. Of course, this rulemaking record indicates that the Commission does not expect that it will be making the requisite determinations under§§ 2.104 and 2.105 with regard to reactor operator licensing proceedings.

2.

Existing§ 2.1205--Request for a hearing; petition for leave to intervene.

a. Requests for formal adjudication.

One utility and the law firm representing five utilities urged that the Commission add a provision that explicitly permits an operator to request formal adjudication upon a showing of good cause or special circumstances. The latter commenter recorrmended specifically an amendment of existing§ 2.1205(b} so as to provide explicitly to the Part 55 license applicant "who is issued a notice of proposed denial or a notice of denial" the opportunity to include in his or her request for hearing a specific request for fonnal adjudication. The amendment would require that the applicant include with the request an explanation of the circumstances requiring such formal procedures as discovery and cross-examination of witnesses. This co11111enter conceded that the procedures in Subpart Lare generally appropriate for hearings on Part 55 licenses, but analyzed the balancing factors for determining administrative due process as warranting trial-type proceedings in many cases, particularly for renewal applicants. The Commission has responded to many of this commenter's views on due process in Section II-A-1, above. While the Co1T111ission differs with some of the conmenter's views on the circumstances which are likely to warrant use 13

of other procedures, explicit authorization of an early vehicle for the appl~cant's identification of case-specific needs for other procedures is desirable. Thus, the final rule amends§ 2.1205(b) so as to authorize the applicant to request, within the request for a hearing, "that the presiding officer reconunend to the ColTITlission that procedures other than those authorized under this subpart be used in the proceeding, provided that the applicant identifies the special factual circumstances or issues which support the use of other procedures." Under§ 2.1209, the presidirig officer already "has the duty to conduct a fair and*impartial hearing according to law" and "has all power necessary to e those ends, including the power to... [d]ispose of procedural requests or similar matters." Nothing in Subpart L expressly prohibits the applicant who is subject to Subpart L procedures from asking within the request for hearing, or separately, that the presiding officer exercise the power to "[r]ecommend to the Commission that procedures other than those authorized under [Subpart L] be used in [the] proceeding" (See 10 CFR 2.1209(k)). Nonetheless, explicit recognition of an opportunity under Subpart L for applicants to request other procedures within their request for hearing clarifies the procedural scheme .' and thereby enhances the applicant's access to other procedures where appropriate. The Corrmission is not altering, however, the necessity of the Convnission's authorization of the use of other procedures. Thus, the new provision only authqrizes the applicant to request that the presiding officer make the necessary recommendation to the Commission.

b. Standing for intervention.

One utility urged the specification of a strict test for standing for intervention in operator license proceedings. Specifically, the commenter suggested that persons other than the operator 14

licensee or applicant be required to demonstrate that it will present evidence that would materially alter the outcome of the NRC hearing decision. NUMARC also recommended a clarification that the threshold of standing for intervention in reactor operator licensing adjudications, under either Subpart Lor Subpart G, will be very high. The Convnission shares the concern that intervention not be indiscriminate, such as for the purpose of creating unnecessary delay. However, the Convnission believes that the existing procedures and judicial standards for standing will provide fair and sufficient scrutiny*of petitions for intervention (See 10 CFR 2.1205). Under Subpart L, for example, the petitioner for intervention must show how its interests will be affected by the proceeding and identify the concerns of the petitioner (10 CFR 2.1205(d),(j)). The presiding officer must determine that the specified areas of concern are germane to the subject matter of the proceeding, and that the petition is timely and meets the judicial standards for standing (10 CFR 2.1205(g), (j)(3)). Indiscriminate intervention is, in . fact, likely to be difficult under the present standards inasmuch as the proceedings will generally focus on issues peculiar to the applicant's or operator's qualifications for the position. In promulgating Subpart L, the CoR111ission indicated that the "distance standard* established by NRC case law for standing in nuclear reactor licensing proceedings, whereby persons re~iding within about fifty miles of a facility generally are considered to have standing, was not applicable to material licensing proceedings (February 28, 1989; 54 FR at 8272)~ The Conmission will take this opportunity to clarify that the "distance standardn is not automatically applicable to reactor operator license proceedings. The standing of a petitioner in each case should be determined upon the basis of 15

the circumstances of that case as they relate to the factors set forth in § 2.1205(g).

c. Appeal of the denial of a request for hearing. Section 2.1205(n) of Subpart L currently permits appeal of an order denying a request for a hearing (or petition for intervention) in its entirety within ten days of the service of the order.

The law firm representing five utilities requested that the Commission amend existing§ 2.1205(n) so as to permit an immediate,appeal of a presiding officer's denial of a request for a formal hearing. As discussed below, this commenter also reconrnended that the Commission give the presiding officer the power to grant a request for a formal hearing. The Commission declines to adopt this recommendation for the following reasons. The existing procedure for an immediate appeal is premised upon the denial of any hearing as a final bar to adjudication. This is a far different circumstance for appeal than a mere denial of a request to use formal procedures for a hearing that is in fact granted. Indeed, completion of the informal adjudication may resolve the requester's' concerns. Additionally, the Conmission sees no reason to carve out for reactor operator hearing questions a special exception to its existing procedures on interlocutory appeal and review.

3.

Existing§ 2.1209--Presiding officer's powers. The law firm representing five utilities recommended that the Co11111ission amend existing§ 2.1209(k) so as to authorize the presiding officer in a Part 55 hearing to grant a request to use other adjudicatory procedures. Currently, the presiding officer's power under§ 2.1209(k) is limited to a recommendation that the Commission authorize the use of other procedures for a particular proceeding. The recorrmended change might slightly expedite decisionmaking on a request for more formal adjudication. However, the Connission believes that the small potential benefits of the change are 16

outweighed by the benefits of its retention of the ultimate determination. For instance, a decision by the Co11111ission serves the interests of uniformity of decisionmaking, full consideration of the potential commitment of costs and resources, and administrative finality. This commenter also reco11111ended amendment of§ 2.1209 so as to authorize the presiding officer to entertain a specific request for a formal adjudication or for certain formal procedures in the course of the hearing if the need for these types of procedures becomes apparent. A presiding officer, however, already has authority to entertain these types of requests during the course of an informal hearing. Nothing in Subpart L prohibits any party from presenting this type of motion to the presiding officer during an informal proceeding (See 10 CFR 2. 1237). Moreover, the Commission need not and probably could not specify all or even most types of procedural motions and supporting circumstances that could be presented during the. course of an informal hearing.

4.

Existing§ 2.1211--Nonparty participation. NUMARC expressed concern about the application of§ 2.1211 of Subpart L, which provides for participation in a hearing by a person not admitted as a party, including a representative of an interested State, county, municipality or agency thereof. Section 2.715 of Subpart G contains similar provisions. The commenter recommends that the Corrrnission clarify that nonparties should not be able to use individual operator license proceedings to address an issue other than an issue that is the subject of the hearing. The Commission notes that§ 2.1211 already states that R[t]he presiding officer.l!!.U pennit a person who is not a party to make a limited appearance in order to state his or her views on the jssyesn (10 CFR 2.12ll(a) (emphasis added)). The rule also 17

, requires that the request for governmental participation "state with reasonable specificity the requester's areas of concern about the licensing activity that is the subject matter of the proceeding" (10 CFR 2.12ll(b) (emphasis added)). Although the nonparty participant may not be required to take a position on the issues, the views to be expressed must relate to the issues that are properly subject to challenge in this type of proceeding. As with the consideration of a petition for intervention, the presiding officer may determine that the views to be expressed are not germane to the proceeding and therefore may deny the request for nonparty participation. For these reasons, the Commission sees no need for other clarification of the limits on nonparty participation. Environmental Impact: Categorical Exclusion The NRC has determined that this final rule is the type of action described in categorical exclusion 10 CFR 51.22(c)(l). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this final rule. Paperwork Reduction Act Statement This final rule contains no information collection requirements and therefore is not subject to the requirements of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.). Regulatory Analysis The Atomi~ Energy Act affords interested persons the right to a hearing regarding a reactor operator licensing proceeding. As the Commission previously indicated in its decision in West Chicago, 15 NRC at 241, the use of informal procedures generally involves less cost and delay for the parties and the Co11111ission than the use of formal, trial-type procedures, the 18

principal other procedural alternative. Also, procedures must be in place to allow for the orderly conduct of those adjudications. Codifying the informal hearing procedures for operator licensing proceedings is preferable to the present practice of establishing the procedures to be followed on a case-by-case basis. By codifying the procedures, the Convnission will avoid the expenditure of time and resources necessary to prepare the individual orders that previously have been used to designate those procedures. This final rule is the preferred alternative and the cost entailed in its promulgation and application is necessary and appropriate. The foregoing discussion constitutes the regulatory analysis for this final rule. Regulatory Flexibility Certification As required by the Regulatory Flexibility Act (5 U.S.C. 605(b)), the NRC hereby certifies that this final rule does not have a significant economic impact upon a substantial number of small entities. Many operator license applicants or operator licensees fall within the definition of small businesses found in Section 34 of the Small Business Act, 15 U.S.C. 632, or the Small Business Size Standards set out in regulations issued by the Small Business Administration at 13 CFR Part 121, or the NRC's size standards published December 9, 1985 (50 FR 50241). The final rule should reduce the litigation cost burden upon applicants or licensees because of the informal nature of the hearing, although submission of filings and documentary information detailing contested legal and factual issues is still required. Cost reduction in comparison to the cost of participating in a formal adjudicatory hearing can be anticipated, although it cannot be estimated with certainty whether that reduction as a whole will be significant. It is clear that use of informal hearing procedures should not increase the burdens of a 19

hearing upon an applicant or licensee. Backfit Analysis The NRC has determined that the backfit rule, 10 CFR 50.109, does not apply to this final rule and, therefore, that a backfit analysis is not required because these amendments do not involve any provisions that would impose backfits as defined in 10 CFR 50.109(a)(l). List of Subjects in 10 CFR Part 2 Administrative practice and procedure, Antitrust, Byproduct material, Classified information, Environmental protection, Nuclear materials, Nuclear power plants and reactors, Penalty, Sex discrimination, Source material, Special nuclear material, Waste treatment and disposal. For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and 5 U.S. C. 552 and 553, the NRc' is adopting the fo 11 owing .amendments to 10 CFR Part 2: Part 2 -- RULES OF PRACTICE*FOR DOMESTIC LICENSING PROCEEDINGS

1.

The ~uthority citation for Part 2 continues ~o read as follows: 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. 2241); sec. 201, 88 Stat. 1242, as amended (42 u.s.c.

• 5841); 5 u.s.c. 552.

Section 2.101 also issued under *secs. 53, 62, 63, 81, 103, 104, 105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, as amended (42 U.S.C. 2073, 2092, 2093, 2111, 2133, 21234, 2135); sec. 114(f), 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. 955, 83 Stat. 444, as amended (42 U.S.C. 2236, 2282); sec. 206. 88 Stat. 20

1246 (42 U.S.C. 5846). 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, 2.780 also issued under 5 U.S.C. 557. Section 2.764 and Table IA of Appendix C also issued under secs. 135, 141, Pub. L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). Section 2.790 also issued under sec. 103, 68 Stat. 936, as amended (42 U.S.C. 2133) and 5 U.S.C. 552. Sections 2.800 and 2.808 also issued under 5 U.S.C. 553. Section 2.809 also issued under 5 U.S.C. 553 and sec. 29, Pub. L. 85-256, 71 Stat. 579, as amended (42 U.S.C. 2039). Subpart K also issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239); sec. 134, Pub. L. 97-425, 96 Stat. 2230 (42 U.S.C. 10154). Subpart L also issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239). Appendix A also issued under sec. 6, Pub. L. 91-560, 94*stat. 1473 (42 U.S.C. 2135). Appendix B also issued under sec. 10, Pub. L. 99-240, 99 Stat. 1842 (42 U.S.C. 2021b, et seq.).

2.

The heading of Subpart L of Part 2 is revised to read as follows: Subpart L ~ Informal Hearing Procedures for Adjudications in Materials and Operator Licensing P~oceedings

3.

Section 2.1201 is revised to read as follows: § 2.1201 Scope of subpart. (a) The general rules of this subpart govern procedure in any adjudication initiated by a request for a hearing in a proceeding for -- (1) The grant, transfer, renewal, or licensee-initiated amendment of a materials license subject to Parts 30, 32 through 35, 39, 40, or 70 of this chapter; or (2) The grant, renewal, or licensee-initiated amendment of an operator or senior operator license subject to Part 55 of this chapter. (b) Any adjudication regarding a materials license subject to Parts 30, 32 through 35, 39, 40, or 70, or an operator or senior operator license subject to Part 55 that is initiated by a notice of hearing issued under § 2.104, a notice of proposed action under§ 2.105, or a request for hearing under Subpart B of 10 CFR Part 2 on an order to show cause, an order for 21

modification of license, or a civil penalty, is to be conducted in accordance with the procedures set forth in Subpart G to 10 CFR Part 2.

4.

In§ 2.1205, paragraph (b) is revised to read as follows: § 2.1205 Request for a hearing; petition for leave to intervene. (b) An applicant for a license, a license amendment, a license transfer, or a license renewal who is issued a notice of proposed denial or a notice of denial and who desires a hearing shall file the request for the_ hearing within the time specified in§ 2.103 in all cases. An applicant may include in the request for hearing a request that the presiding officer reconvnend to the Commission that procedures other than those authorized under this subpart be used in the proceeding, provided that the qpplicant identifies the special factual circumstances or issues which support the use of other procedures. Dated at Rockville, MD, this':3(:lor day of.Ji~ 1990. atory Commission. 22

OOCKET NUMBER PR. PROPOSED RUL\\ IJ5 l/Lf::!((::J;;;'/ --16)) SHAW, PITTMAN, POTTS & TROWBRIDGE 1*:~.*!_- A PARTNERSH IP INCLUDING PROFESSIONAL CORPORATIONS 2300 N STREET, N. W. TELEX/CABLE 89*2693 (SHAWLAW WSH) WASHINGTON, D. C. 20037 '89 JUL -5 P12 *('\\~ IRGINIA OFFICE

• 1~'01 FARM CREDIT DRIVE MCLEAN, VIRG INIA 22102 TELEPHONE (202) 663*82 15 DEBORAH B. CHARNOFF

,)f' DUCK* 'I July 5, 1989 BY HAND Mr. Samuel J. Chilk Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attn: Docketing and Service Branch Re: Proposed Rule on Informal Hearing Procedures for Nuclear Reactor Operator Licensing Adjudications, 54 Fed. Reg. 17961 (Apr. 26, 1989)

Dear Mr. Chilk:

Enclosed please find a corrected copy of our filing, submitted on July 3 on behalf of the Professional Reactor Operator Society (PROS). The prior filing had a word out of order on the second page. Thank you. Respectfully submitted, (703) 790-7900 TELECOPIER (202) 663-8007 ~~a -~ DBC/ff Deborah B. Charnoff, on behalf of the Professional Reactor Operator Society

CJ. 5. NUCLFAR RfGULATORY COMMISSIOII OOCK EH*!G & SERVICE SECTION OFF~[ C;F THE SECRET ARY OF THE COMMISs-lQN Doo.*mont S1atiatics Postmar!t Date __ jj C, I Add' I Co,:c r:, ,.,.,.,..;, *c,.d _J ____ _ &pecial Distrib1;t1on _£).JI(_ J/ fJJ: fr :-JJ.-- (.

DOCKET NUMB'ER PR 'I PRO.POSED RULE th*~ C s L) f IZ I 1 9 6)) SHAW, PITTMAN, POTTS & TROWBRIDGE A PARTNERSHIP INCL UDING PROFESSIONAL CORPORATIONS TELEX/CABLE 8 9 *2693 (SHAWLAW WSH) TELEPHONE (202) 663 -821 5 DEBORAH B. CHARNOFF Mr. Samuel J. Chilk Secretary 2300 N STREET, N. W. WASHINGTON, D. C. 20037 July 3, 1989 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attn: Docketing and Service Branch Re: Proposed Rule on Informal Hearing Procedures (jJ VIRGINIA OFFICE 15 01 FARM CREDIT DRIVE MCLEAN, VIRGIN IA 22102 (703) 7 90-7900 TELECOF'IER (202) 663-8007 for Nuclear Reactor Operator Licensing Adjudications, 54 Fed. Reg. 17961 (Apr. 26, 1989)

Dear Mr. Chilk:

The NRC is proposing to amend Part 2 of its regulations in order to provide for the conduct of informal adjudicatory hearings in nuclear reactor operator licensing proceedings. "Proposed Rule on Informal Hearing Procedures for Nuclear Reactor Operator Licensing Adjudications," 54 Fed. Reg. 17961 (Apr. 26, 1989 ). On behalf of the Professional Reactor Operator Society (PROS), these comments oppose the proposal. PROS is a professional organization whose membership includes reactor operators located at nuclear power plants throughout the United States. There are two basic problems with the proposed rule which, we believe, require further consideration. First, it is not possible to discern the circumstances to which the proposal would apply. The proposed rule appears to exclude from its scope all proceedings initiated as a result of proposed enforcement action. See last paragraph of Supplementary Information and proposed Section 2.1201(b). What is extremely vague, however, are the circumstances to which the rule would apply. Not only is the need for the rule not specified, but neither are all of the scenarios in which the NRC feels that an informal hearing would be sufficient. At issue, in these circumstances, may be the continued validity of a reactor operator's license, which is a license that requires enormous

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SHAW, PITTMAN, P O T TS & TR OWBRIDG E A PART NER S H I P IN C L U D ING PROFESSIO N A L CO RPORATI ONS Mr. Samuel J. Chilk U.S. Nuclear Regulatory Commission July 3, 1989 training, dedication and time for an individual to obtain and maintain, and which is a necessary prerequisite to the career path of the nuclear reactor operator. As the Commission well knows, such a license is protected under the United States Constitution because of its value as property. Moreover, the individual licensee's liberty interests may also be challenged by NRC's proposed action. And yet no consideration is paid in the proposed rule to these important rights, nor does the proposal specify the precise circumstances under which countervailing considerations nevertheless should take precedence. Our second comment concerns the need for the proposal. In view of the critically important rights of operators that are at issue here, PROS would support a proposal which gave to operators the opportunity to utilize informal processes, without requiring them to do so. This might simplify procedures when all of the parties agree that it is appropriate and advantageous to do so. However, this option is not equivalent to the denial to an operator of the opportunity to cross-examine witnesses, for example, when his license may be at stake, and to take advantage of the other more formalized procedures set forth in Subpart G of 10 C.F.R. Part 2. In summary, we urge the Commission to reject the proposal as drafted and to either withdraw it, or modify it so that the proposed informal procedures are another option available to but not required for nuclear reactor operator licensing adjudications. DBC/ff Respectfully submitted, t)~ &~ Deborah B. Charnoff, on behalf of the Professional Reactor Operator Society

-~-.~.,,~{lt~f DOCKET NUMBER PR PROPOSED RULE ? ) ( 5'9 Ff ) NuJfA{ REGULATORY COMMISSION 10 CFR Part 2 RIN: 3150-AD17

• a9 JUL -5 P 3 :41 Informal Hearing Procedures fovFr 1:.,,

Nuclear Reactor Operator Licensing Adjud'1ft:~ti,9.nsN*.; *,!!.t ..... ~. ~- AGENCY: Nuclear Regulatory Commission. ACTION: Proposed rule: Extension of comment period.

SUMMARY

On April 26, 1989, (54 FR 17961), the NRC published for public corrment a proposed rule to amend its regulations to provide procedures for the conduct of informal adjudicatory hearings in nuclear reactor operator licensing proceedings. The corrment period for this proposea rule was to have expired on June 26, 1989. On June 26, 1989, the Professional Reactor Operator Society requested a thirty-day extension of the comment period and on June 27, 1989 Shaw, Pittman, Potts & Trowbridge law firm, on behalf of several of its clients, requested an extension until July 3, 1989. Around this same time, two other individuals requested copies of the rule and indicated that they may file written requests for extensions of time. In view of the importance of the proposed rule, the recent interest of the public in the rule, the amount of time that the requesters suggest is required in order to provide meaningful comments, and the desirability of developing a final rule as soon as practicable, the NRC has decided to extend the corrment period for an additional forty-five days. The extended comment period now expires on August 10, 1989. DATES: The comment period has been extended and now expires August 10, 1989. Comments received after this date will be considered if it is practical to do so fv/,/)~L~) 11\\ f'R, 0 I' 1)-/{)-f 7 I J' S1/ f' /(_ 'Jf ( ;J_~

I.I. S. NUCLE.A R REGULA, TORY COMMI SSIO.M DOCKETli-.JG & SERVICE SECTION OFFrCE OF THE SECRETARY or TH!: COtY-.MISSION Document Statistics Postmark Date __ t./~Q'--------- Copies Received ---1-----:::e------ A d d' l Co;:iie:s Reproduced_].,..,_,,,__ ___ _ &eeciel Distribution @(Lr?-- f1 /,f)[ S'-["',1 f )

[7590-01] 2 but the Commission is able to assure consideration only for corrments received before this date. ADDRESSES: Send written comments or suggestions to the Secretary of the Corrmission, U.S. Nuclear Regulatory Corrmission, Washington, DC 20555, ATTN: Docketing and Service Branch. Hand deliver comments to Docketing and Service Branch, One White Flint North, 11555 Rockvi 11 e Pike, Rockvi 11 e, MD between.Y: 30 am and 4:15 pm. Examine comments received at: The NRC Public Document Room, 2120 L Street NW., Washington, DC. FOR FURTHER INFORMATION CONTACT: Karla Smith, Attorney, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555, Telephone (301) 492-1606. Dated at Washington, DC this.}lday of ~ , 1989. For the Nuclear Regulatory Commission

DOCKET NUMBER -!) PRoPosEo R cLJ y!....!r.!-f<.~1-1-9-61~ PHILADELPHIA ELECTRIC COMPANY ([) NUCLEAR GROUP HEADQUARTERS 955-65 CHESTERBROOK BLVD. "89 JLJ'U 30 IV p 4 :16 WAYNE, PA t 9087-5691 (215) 640-6000 (:Fr '(* DOCK*-,,

• ! !,NLi1 June 23, 1989 Mr. Samuel J. Chilk Secretary of the Commission U.S. Nuclear Regulatory Commission Attn:

Docketing and Service Branch Washington, DC 20555

SUBJECT:

Comments Concerning the Nuclear Regulatory Commission Proposed Rule Regarding Informal Hearing Procedures for Nuclear Reactor Operator Licensing Adjudications, 10 CFR 2 (54 FR 17961)

Dear Mr. Chilk:

This letter is being submitted in response to the Nuclear Regulatory Commission's (NRC's) request for comments regarding the Proposed Rule 10 CFR 2, "Informal Hearing Procedures for Nuclear Reactor Operator Licensing Adjudications," published in the Federal Register (54 FR 17961, dated April 26, 1989). The Philadelphia Electric Company (PECo) appreciates the opportunity to comment on this proposed rule. PECo endorses this effort and supports promulgation as a final rule since less formal hearing procedures could l) be more cost effective, 2) provide for standardization and consistency, and 3) result in a more extensive exchange of information between interested parties. contact us. If you have any questions, please do not hesitate to Very truly ~ E. P. Fogar y Manager Nuclear Support Division '31.Jl 2 s 198' P-cknowledged by card.*.* ~:;~n ~ ** ~

',S. NUCLEAR RE UL "'0PY COMMISSIOli DOCKET G [!:P /ICE SECTION OJ:f,.. OF i'tF SfCRHAR'l'J OF THE (OMMl~SION Doc. n! ~t,'i des Postm!lrk ate __ 6- ~ ,.. f Copi s P. c Add' I Co. $ r-,mduced '.3 6pa,I I Distribution /?..-D---'f..-,---,f_,...)_D( f-m, t)-

DOCKET NUMBER i PROPOSED RULE l 5 YfR )1 1bl J SHAW, PITTMAN, POTTS & TROWBRIDGE TELEX/CABLE 89*2693 (SHAWLAW WSH) TELEPHONE (202) 663 -8215 DEBORAH B. CHARNOFF Karla Smith, Esq. A PARTNERSH IP INCLUDING PROFESSIONAL CORPORATIONS 2300 N STREET, N. W. WASH INGTON, D. C. 20037 June 27, 1989 Office of the General Counsel Nuclear Regulatory Commission Washi ngton, D.C. 20555

Dear Ms. Smith:

V IRG INIA OFFICE 1501 FARM CREDIT DRIVE MCLEAN, VIRGINIA 22102 (703) 790-7900 TELECOPIER (202) 663-8007 Following up on our conversations of yesterday and today, as you requested, I am hereby making a written request for an extension of time within which to submit written comments on the proposed rule entitled Informal Hearing Procedures for Nuclear Reactor Operator Licensing Adjudications, 54 Fed. Reg. 17961 (April 26, 1989). I would appreciate an extension until July 3, 1989 to submit comments. Thank you very much for your attention to this matter. Sincerely, Deborah B. Charnoff DBC/ff

N01 At 11 NOi UOII *9!JJS!Q 1ep8dS !dO) I,PPV s :dO) ,rt.JJSOd

PROFESSIO REACTOR OPERATOR SOCIETY 414-755-2725 CKET NUMBER *

• - ~

..,ED U ) Al l6Yff2J0~6] Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 ATTN: Docketing and Service Branch June 26, 1989

SUBJECT:

Federal Register Notice/ Vol. 54, No. 79 / April 26, 1989 / Proposed Rules 17961 10 CFR Part 2 Informal Hearing Procedures for Nuclear Reactor Operator Licensing Adjudications I would like to request a thirty (30) day extension of the comment period for the above referenced rule. In the past few days our organization was made aware of the fact that this proposal may eliminate the option of a formal hearing in cases related to the licensing of reactor operators and senior reactor operators. I request the extension in order clarify and respond to the implications of this proposal. Thank you, EJ~\\?~- Jim Peterson President x c Karla Smith, Ofice of the General Counsel P.O. Box 181, Mishicot, Wisconsin 54228-0181

Poslm r Cop ~ R

Add' I Cop

PROFESSIONAL REACTOR OPERATOR SOCIETY 414-755-2725 Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 ATTN: Docketing and Service Branch "89 JUN 30 P 4 : 1 7 OFF !L:: I I

• Ar-.

OOCKE i.. i & -;,,.,*,u. ~ANLf-i June 26, 1989

SUBJECT:

Federal Register Notice/ Vol. 54, No. 79 / April 26, 1989 / Proposed Rules 17961 10 CFR Part 2 Informal Hearing Procedures for Nuclear Reactor Operator Licensing Adjudications I would like to request a thirty (30) day extension of the comment period for the above referenced rule. In the past few days our organization was made aware of the fact that this proposal may eliminate the option of a formal hear i ng in cases related to the licensing of reactor operators and senior reactor operators. I request the extension in order clarify and respond to the i mplications of this proposal. Thank you, ~v~ '-J1..m Peterson President xc Karla Smith, Ofice of the General Counsel P.O. Box 181, Mishicot, Wisconsin 54228-0181

J. Ut,~N* i ' r-UtATORY COMMISSK:11 DOCl':fTa-JG & SERVICE SECTION 0 r!r_, OF T~.E SECRETARY: 0~ TtlE COMMISSION Docurn°,! S*dtist"cs Postmark Da'e Copies Rcc"1vr.d 6-XJ-t j }_ ___ _ Add' I Co-. s Rr>,,rc luced ------- Special Distribution

e Commonwealth Edison 72 West Adams Street, Chicago, Illinois Address Reply to: Post Office Box 767 Chicago, Illinois 60690 - 0767 DOCKET NUMBER PR --.,_J __ PROPOSED RULE - 0 { SV ri~ I? qt I June Samuel J. Chilk, Secretary U.S. Nuclear Regulatory Commission Attn: Docketing and Service Branch Washington, DC 20555 '89 JUN 28 27, 1989

Subject:

Proposed Rule on Informal Hearing Procedures P4 :13 for Nuclear Reactor Operator Licensing Adjudications (54 Fed. Reg. 17961, April 26, 1989)

Dear Mr. Chilk:

This provides Commonwealth Edison's comments on the subject proposed rule. In that proposal, the Nuclear Regulatory Commission (NRC) proposes to interpret the hearing provision in Section 189a of the Atomic Energy Act of 1954, as amended, 42 USC 2239(a), as it applies to Operators (ROs) and Senior Operators (SROs) of nuclear reactors. Since ROs and SROs are NRC licensees under Section 107 of the Atomic Energy Act, 42 USC 2137, they (ROs and SROs) are entitled to a hearing in any proceeding for the granting, suspending, revoking or amending of an operating license. The nature of that hearing, however, is not specified by the Atomic Energy Act. The NRC proposes to interpret the statutory hearing language differently depending on whether an applicant/licensee or the NRC initiates the license proceeding. If an applicant or licensee initiates the proceeding, the hearing would be conducted in accordance with the informal adjudicatory procedures which were recently adopted by the NRC as Subpart L to 10 CFR Part

2.

This determination to adopt informal procedures for licensee-initiated proceedings is consistent with recent NRC practice. By contrast, if the NRC initiates the proceeding, then the hearing would be conducted in accordance with the formal adjudicatory procedures in Subpart G to 10 CFR Part 2. The decision to apply formal procedure under these circumstances is based on an analogy between these circumstances and NRC enforcement actions for which formal, trial - type hearings are provided. This proposed rule is difficult to comment on meaningfully because the Statement of Consideration does not prov ide adequate information about the NRC's decision-making process as required by the Administrative Procedure Act. Information was not provided on why Subpart L to 10 CFR Part 2 was considered appropriate for proceedings initiated by ROs and SROs. The justification for Subpart L relies strongly on its formulation for materials license issues. Those issues are different from the issues involved in proceedings initiated by ROs/SROs, therefore, it is not clear that the issues raised by ROs / SROs can be addressed appropriately by Subpart L or whether some other informal procedures may be more appropriate. JUL 2 3 1989 "'** lcknowledt?ed by* cirL';..... ~

2 - Additionally, no basis is provided for interpreting the statutory language in Section 189a in two different ways depending solely on who initiates the proceeding. It can be argued that an RO/SRO initiated proceeding on the NRC's denial to grant a license is just as important to the RO/SRO as the NRC's initiation of a proceeding to suspend or revoke a license. Conversely, it can be argued that the reduced cost and shorter time of an informal proceeding actually provide greater opportunity for relief for an RO/SRO. These are the kinds of issues which the NRC must address in interpreting the hearing right in Section 189a. Based on the previous discussion, Commonwealth Edison urges the NRC to re-notice this proposed rule with a clear statement of the NRC's decision-making process, including a showing of the appropriateness of Subpart L for proceedings initiated by ROs/SROs. Otherwise, the proposed rule should be amended to provide for formal adjudicatory procedures for all license proceedings involving ROs/SROs. Edison appreciates this opportunity to provide comments on this proposed rule. Respectfully, M.H. Ri chter Generic Issues Administrator 900lk33/34

YANKEE ATOMIC ELECTRIC COMPANY Telephone (508) 779-6711 TWX 710-380-7619 Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Docketing and Service Branch

Subject:

Informal Hearing Procedures for Nuclear Reactor Operator Licensing Adjudications (54FR17961)

Dear Si r:

Yankee Atomic Electric Company (YAEC) appreciates the opportunity to comment on the subject proposed rule change to 10 CFR Part 2. YAEC owns and operates a nuclear power plant in Rowe, Massachusetts. Our Nuclear Services Division also provides engineering and licensing services for other nuclear power plants in the Northeast, including Vermont Yankee, Maine Yankee, and Seabrook. .r We support NRC's proposal to provide rules of procedure for the conduct of informal adjudicatory hearings in nuclear reactor operator license proceedings. We believe, however, that applicants should be afforded the opportunity to request a formal hearing under 10 CFR Part 2, Subpart Gin special cases. To our knowledge, the infrequent requests for adjudicatory hearings on operator license proceedings indicates that it is not a process being abused by licensees, and it has not been a burdensome regulation for NRC to impl ement (particularly in view of the due process protection it affords licensees). The NRC even admits in the "Regulatory Flexibi lity Certification" to the proposed rule that it is questionable as to whether there will be a significant cost reducti on in comparison to the cost of participating in a formal adjudicatory hearing. Because the scope of issues in a Part 55 operator license proceeding are limited, and the operator license proceeding is of such fundamental importance to the individual operator, we urge the Commission to explicitly include provisions for formal adjudications in special circumstances. For instance, it would seem appropriate that an individual whose entire career could be ended as a result of a denial for license renewal, should be afforded the opportunity to initially request a formal hearing and, if needed, to request one upon appeal of an unfavorable hearing decision. Finally, in addition to the rights of the applicant, the proposed rule establishes the rights of other parties to request a hearing - - JUL 2 3 1!189.,. ~cknowledged by card......,..., .i.;,., -r

J. i. ~~~~ t.A?,,,,:ULr-rc.~*;y c"u"/.r../.,d~',' DOCKET!,!G & SC:?.'/ICE SECTION o r ~,rE C*F Tl'E SE'.:'~T/RY o, TH CC 1*A,1 ',,~SION Postmark Ch* L )- C-f't ( 11-i;r, '<' Copies " e } Add' l Ceo r.

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or intervene in operator license proceedings. To ensure that such requests for participation are not indiscriminate, such as solely for the purpose of creating unnecessary schedular delays, we urge the Commission to impose a threshold for participation that exceeds the strict judicial standing test that has been formulated for licensing hearings for nuclear power plants. We urge the Commission to specifically require that, to be granted standing, a third party demonstrate that it has information that would materially alter the outcome of the NRC hearing decision. Sincerely, !P4l~ Donald W. Edwards Director of Industry Affairs JMG/ef

DOCKET NUMBER PR -~~--- P,RQp_QSED RULE ) C f LJ f I<. I? q b I NUCLEAR MANAGEMENT AND RESOURCES COUNCIL 0 1776 Eye Street, NW

• Suite 300
• Washington, DC 20006-2496 "89 JUN 27 P 4 :08 (202) 872-1280 Joe F. Colvin Executive Vice President &

Chief Operating Officer Mr. Samuel J. Chilk Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Docketing and Service Branch June 26, 1989 RE: Proposed Rule - Informal Hearing Procedures for Nuclear Reactor Operator Licensing Adjudications 54 Fed. Reg. 17960 (April 26, 1989) Request for Comments

Dear Mr. Chilk:

These comments are submitted on behalf of the Nuclear Management and Resources Council, Inc. ("NUMARC") in response to the request of the U.S. Nuclear Regulatory Commission ("NRC") for comments on the NRC's proposed rule entitled "Informal Hearing Procedures for Nuclear Reactor Operator Licensing Adjudications" (54 Fed. Reg. 17961 - April 26, 1989). I

• NUMARC is the organization of the nuclear power industry that is responsible for coordinating the combined efforts of all utilities licensed by the NRC to construct or operate nuclear power plants, and of other nuclear industry organizations, in all matters involving generic regulatory policy issues and on the regulatory aspects of generic operational and technical issues affecting the nuclear power industry.

Every utility responsible for constructing or operating a commercial nuclear power plant in the United States is a member of NUMARC. In addition, NUMARC's members include major arch itect-engineering firms and all of the major nuclear steam supply system vendors. The nuclear industry believes that the NRC's proposed codification of hearing procedures for nuclear reactor operator licensing adjudications is fair and appropriate. We agree that it is appropriate for the NRC to codify its practice so that all parties potentially affected can have a clear understanding of what procedure would be followed in any particular circumstance. The NRC's intended use of informal, legislative-type hearings associated with proceedings for the grant, renewal, or licensee-initiated amendment of a reactor operator's license is an effective way to provide an appropriate forum for the resolution of issues in a cost and resource effective way. The submittal of written testimony, under oath or affirmation, and the opportunity to make an oral presentation to a presiding officer would seem to provide a process that is fair and would lead to a timely decision, which JUL 2 8 1989 AcknowledQ'ed by caf~ I

( 0 t d

Mr. Samuel J. Chilk June 26, 1989 Page 2 is very important to an operator whose license and ability to perform under the license are at issue. For licensing procedures initiated pursuant to§ 2.104 and§ 2.105, formal adjudicatory hearings would be appropriate, as the proposed rule would provide, and particularly so for proceedings initiated under Subpart B of Part 2, or where the imposition of a civil penalty under§ 2.205 applies. Because of the potential affect on an operator of these types of proceedings, the full legal and procedural protections afforded by Subpart Gare appropriate. It would be desirable for the NRC to clarify that appeals by an operator of the denial of his/her initial application or renewal request, because the significance to the operator is similarly so great, will also be conducted in accordance with Subpart G. Because a result of the codification of the NRC practice would be to establish rights of other persons to intervene in operator licensing adjudications, under either Subpart Lor Subpart G, the NRC should clarify its intent that the provisions of both subparts as they pertain to operator licensing adjudication hearings should be interpreted literally; the threshold should be very high for any person 21bfil: than the operator whose license is the subject of the proceeding to be allowed to participate as a party to that proceeding. Section 2.1211 of Subpart L provides for, potential participation in a hearing by a person not admitted as a party to that proceeding, which would include a representative of an interested State, county, municipality or an agency thereof; Section 2.715 of Subpart G contains similar provisions. The NRC should clarify in the Statement of Considerations accompanying the final rule that no individual or representative of a governmental instrumentality should be able to use individual operator license proceedings to address any issue other than the issue under 10 C.F.R. Section 55 that is the subject of the hearing. We appreciate the opportunity to comment on this proposed rule and would welcome the opportunity to discuss our comments further with appropriate NRC staff personnel. Sincerely, JFC/RWB:bb

Jun 26, 89 16:25 BISHP

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REi' NOLD S F.C2 ~OLKCTt C, ,J'.,Ni*.C oacKET NUMBER PR a PROPOSED RULE ) ( S-LJ {/2 l)9(,) June 26, 1989 Mr, Samuel J. Chilk Secr~tdry of the CummJssion tJ. S. Nuclear Re)ll ~t ory Comrnission Wd hington, D.C. 20555 Re: Notice of Propos~d Rulemaking '89 JUN 26 P 5 :09 InEor:rr,* 1 Hf..'ct.c:i11y Proc.edure*_; fot i u~.11::>,:1. Reac o 01,crc1.tor L1 cen~ing Adj utl11.: t t;.t ,il__Fr~ct!.. R~CJ. 17. 96l_ _ _( ~ri,_1 j.2.L_J.9a~J l)f~iJf Mr. Chilk: 'tn a::::c0rd,:1.rc, t*1 t:1e above** '.l.'efen.-rn<;e l N:.t. c * <.: *1ok, 1,l.rCcll & He 1wld.: hereby s 1 i11it.-c the i. ~. r *!. y ... t!f 't HcrLhen~t Utilitie ;; Rochest, r

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Jun 26, 89 1 6 : 25 BI SHP COOK PURCELL & REYNOLDS 202-37 1-595 0 Mr. Samuel J. Chilk Secr etar y of the Commission June 26, 1989 Page 2 at 17, 961. It would apply 10 c. F.R. Part 2, Subpart L (informal hearing procedures for adjudications in materials licensing proceedings} to hearings on Part 55 licenses;1) consequently, no formal adjudications under Subpart G (rules of general applicability ) would be available. P. 03 As a legal matter, the extension of Subpart L to hearings on Part 55 licenses arguably would not violate the Atomic Energy Act or the Due Process Clause of the U.S. Constitution.y However, as a practical matt er, we disagree that the procedures that govern d hearing on a Part 55 license should be identi1;al to those that govern a hearing on a materials license. Fi rst, the interests in a Part 55 license are fundamentall y different from t hose in a materials license. The former snot merely an authorization to engage in a regulated act i vity -- it represent s t he very l ivel ihood of the licensee. The denial of an applicati on for a Part 55 license, particularly for the renewal of that license., effectively terminates a career as a nuclear power plant operator. For t his reason, it should not be viewed merely as a typical licensing action. Arguably materials license also represents the livel ihood of the licensee.

However, a facility that makes some incidenta l use of bypr.oduct material is less vulnerable to an unfavorable licensing action.

In the i nterest of fairness, an individual licensee should receive an even gre ter measure of process compared to that accorded a corporate licens ee. Similarly, the extent of public interAst in Part 55 licenses is fundamentally different from that in materials licenses. The 1/ Subpart L was adopted by the Comrnis sjon on February 28, 1989. 54 Fed, Reg. 8296. rt provides fer informal adjud' ations on the issuance, amendment, renewal, or tra1sfer of materials licenses issued under Parts 30, 32-35, 39, 40, or 70. However, i t provides for formal adJudications (i) if t e hea ing is initiated by the NRC under Section 2.104 (notice of hearing) or Section 2.105 (notice of proposed action); or (ii ) on s how cause orders or orders that impose amendments or civil penalties. 10 C.F.R. § 2.1201. Y However, we observe that the NRC, in its promulgation of Subpart L, largely relied on City of West Chicago v. NRC, 701 F. 2d 632 (7th Cir. 1981). The court in that case held that the NRc i s not required, under t he Atomic Energy Ac t or the Due Proce s s Cl ause, to provid e a forma l a d judication on a materia ls l icens e amendment. Howe ver, the c ourt never considered a Part 55 license. 11 In the c i rcumstances__Q_{ thi~ ~, we find that an informal hear ing suffices." 701 F.2d at 638 (emphasis added),

Jun 26, 89 16:26 BISHP COOK PURCELL & REYNOLDS 202-371-5950 Mr. Samuel J. Chilk Secretary of t he Commission J une 2 6, 1989 Page 3 public interest in Part 70 licenses, for example, is apparent. As a result, Subpart L establishes certain requirements for potitions to intervene in proceedings on materials licenses. 10 C.F.R. § 2.1205. There should be considerably less public interest in involvement in proceedings on Part 55 licenses. We ara aware of no instance in which a member of the public petitioned the NRC to in ervene in a proceeding on a Part 55 license. Second, the issues adjudicated in hearings on Part 55 licenses are quite different from those adjudicated in hearings on materials licenses. The requirements for a Part 30 license, for example, are largely technical and objective. See 10 C.F.R. P.04 § 30.33 (general requirements for issuance of specific license). Those requirements are published and understood and are dlscussed by a license applicant with the NRC before the application is filed. Because they are objective and technical, moreover, they are difficult to misjudge by the individual who reviews and approves the application. In contrast, the requirements for a Part 55 license necessitate several sub'ective evaluations. See 10 C.F.R. § 55.3 3 (health; written examination and operating test). The examinations and tests for a Part 55 license are not published and understood and are not discussed by a license applicant with the NRC before the application is filed. Because they necessitate several subjective evaluations, they are e sy to misjudge by the individual who administers and grades them. Consequently, the expertise, veracity and demeanor of the individual who reviews and approves a Part 30 license application would not be an issue in a hearing on the license. However, the expertise, veracity and demeanor of the individual who administers and grades the examinations and tests for a Part 55 license could be an issue in a hearing on the license. Third, and finally, the principal practical rationale for Subpart Lis less persuasive in view of the relative volume of Part 55 licenses. 1'[T]he use of informal procedures involves less cost and delay for parties and the Commission than the use of formal, trial-type procedures.... " 54 Fed. Reg. at 8275 (regulatory analysis for Subpart L); compare 54 Fed. Reg. at 17,961 (regulatory analysis for proposed regulation).

However, the prospects for hearings on Part 55 licenses are quite different from those fo~ hearings on materials licenses.

n 1987, the NRC issued 700 materials l'censes and processed 3 00 amendments and 1000 renewals. That same year, it issued 798 Part 55 licenses and processed 1740 renewals. There apparently were no amendments. ~ generally NUREG-1145, vol. 14, 1987 NRC Annual Report at 30, 73. It is difficult to generalize on the basis of these figures. However, it ls apparent that, because its materials licensees generate twice the licensing actions generated by its Part 55 licenses, the burden on NRC r~sourc~s or

Jun 26,89 16:27 BISHP COOK PURCELL & REYNOLDS 202-371-5950 Mr. Samuel J. Chilk Secretary of the Commission June 26, 1989 Page 4 Part 55 license hearings should not b ex ected to rival that of materials license hearings. P. 05 Indeed, we have identified only six requests for llearir1gs on Part 55 licenses since 1984.,Y Five of those requests ~ere resolV8d before a hearing was conducted. Thus the NRC has conducted only one hearing on a Part 55 license since 1984. Perhaps most import ntly, because of the very liMited scope of the issues in a Part 55 license renewal hea ing, compared co those in a license renewal hearing for a fuel fabrication tacility, for example, the former should be brief and involve fewer NRC resources for a shorter period of time. Opportunity for Formal Adjudication For the foregoing reasons, ~e believe that, as a practical matter, the procedures that govern a hearing on a Part 55 licensa should not be identical to those that govern a heaiing on a materials license. To address the differences between Part 55 licenses and materials licenses, and to acknowledge the different prospects for and issues in hearings on the former, the proposed regulation, at a minimum, should explicitly preserve the ppoLtunity for a formal adjudication on a Part 55 license upon a demonstration of good cause that.reflects those differences. Subpart L presently fails to preserve that opportunity explicitly. Section 2.1209(k) authorizes the presiding officer in a hearing on a materials license to "(r)ecornrnend to the Commission that procedures other than those authorized under this subpart be used in a particular proceeding.... This provision authorizes the presiding officer to advise the Commission to conduct a formal adjudication under Subpart G on a 1/ See Kenneth L. Burton (Senior Operator License for M'llstone Nuclear Power station Unit No. 3), Docket No, 55-60575, ALJ-86-01, 23 N.R.C. 31 (1986) (unsuccessful examination invalidated and license issued); Alfred J. Mordbito (Seniot Operator License for Beaver Valley Power Station Unit No. 1), Docket No. 55-607~5, CLI-88~4, 28 N.R.C. 5 (1988) (denial of license vacated); David w. Held (Senior Operator License for Beaver Valley Power Station Unit No. 1), Docket No. 55-60402, LBP-88-22, 28 N.R.C. 176 (1988) (issuance of license authorized): Christopher D. Gentile (Sen or Reactor Operator License No. 20359), Docket No. 55-20674, 52 Fed. Reg. 47,983 (Dec. 17, 1987) (rescission of license suspension); Maurice P. Acosta, Docket No. 55-08347, 53 Fed. Reg. 32,484 (Aug. 25, 1988) (establishment of Atomic Safety and Licensing Board): Rodger W. Ellingwood, Docket No. 55-20449, 54 Fed. ~eg. 17,847 (April 25, 1989) (designation of presiding offi~er).

Jun 26, 89 16:28 BISHP COOK PURCELL & REYNOLDS 202-371-59_-_~_o _____ __ P_.u_b_. _ _ Mr. Samue l J. Chilk Secretary of the Commission June 26, 198 9 Page 5 materials license. However, when it proposed Subpart L, the NRC observed that it "contemplates that this will not be appropriate in the vast majority of cases." 52 Fed. Reg. 20,089, 20, 091 (May 29, 1987). §~ ~nerall y In the Matter _9f _Seguo ah_ Fuels Cor:p_orgition 1-Seguoyah UF6 to UF4 Facility), CLI-86-17, 24 N.R.C. 489 (1986) (presiding officer recommendation for formal ,:1 judication rejected by Commission). The unqualified application of Subpart L to hearings on Part ~5 licenses would result in a similar presum tion against formal d judic~tions. It also would fail to address and acknowledge tte numerous differences between Part 55 licenses and materials l icenses. Finally, the proposed regulation would bolster the pe r ception that the NRC issues only two t pes of licenses -- t hose for nucle

• r pow.r plants and those not for nuclea~ power

~)'dnts. Generally, bubp rt G is appro~riate for hearings on Part 50 licenses and the procedures codified in Subpart Lare ~ppropriate for he rings on Part 55 licenses. However, the

• odification of that generalization as a legal presumption is n~ither contemplated by Section 189 of the Atomic Energy Act no i n the interest of fairness.

We would not urge the Commission t.o retain its ad hoc ,~iopment of procedures for hearings on Part 55 licenses. Rather, we believe Subpart L should be amended to p~eserve explicitly the opportunity for a formal adjudication for good cause. First, Section 2.l205(b) should provide the Part 55 license applicant "who is issued a notice of proposed denial or a t~- ~ of denial" with the opportunity to include..i.n his request f or a hearing as ecific request for a formal adJudication. It hould require the specific request to explain the circumst.:tnces that require discovery, confrontation and examination of witnesses, and the other formal procedures under Subpart G. ~hose circumstances would arise, for exampJe, if a Part 55 licensee failed an initial examination but beli ved the examination was unfairly administered nnd graded. rn thal case, the expertise, veracity, or demeanor of the individuals who Qdministered and graded the examination would be an i~sue that s ~titical to the resolution of the case. Second, Section 2.1205(n) ~hould provide that the denial of

3. specific requ~st for a formal adjudication on a Part 55 license also is appealable.

Third, Section 2.1209 shoul d ~uthorize the presiding officer in a Part 55 hearing to qr-ant the specific request~ it should not require a Commission order. It also should authorize the presiuing officer to ent~rtain a specific request for a formal adjudication or for certain formal procedures in the course of the hearing it it becomes ap aYent only later that those procedures are necessary.

Jun 2b,89 16:29 BISHF CCUK PUhCELu ~ RBYNOLDS 2G~-37_1_-_~_~_.S_u ________ r_._u"7-- Mr. Samuel J. Chilk Secretary of the Commlssion cTl.lnC> 26, 1989 f'age 6 'f'hr)s *, *'lmer1drne11~., to Subpart r... wou* d f*')< )1 ic.i tly prr.:?'-,erve the ,.:,pp\\.it turd ty fcJr a formal lclj udic,'\\tim1, f r \\_;ootJ 1~ause, on a Part ~5 license, wh i ch we b~lievo is a necessa!y m~asur~ lo ensur~ t*~,at. the l ic@nf;i ls ; c1 i rly issued,:rnd rcmm.i~.cl. 1 t also would l J i.*n i n-cttt:: th.~ untai r t-.nd J eg~1lly quE;.sticn,b l f: pr***s*un1pt ion that a

• 11t ~5 1:Gense is no different from a ma ~r* ls license.

Nicho Josep James BISHOP, CO<F, PURC~LL & REYNOLDS

QOCKET NUMBER PR ~ R,ROPOSED RULE !) {.f LJ r, i 1o/JI MAY 23 1989 "89 MAY 30 A11 :44 TO.US N~~LEAR REGULATORY COMMISSION [JOC ht.-1~,r. .,!.I a : H. *, F.G."CHIEF"DAVIS ST.LUCIE NUCLEAR FLA.PWR&LIGHT (!) GENTLEMEN THIS IS IN REPLY TO YOUR PROPOSED CHANGE TO 10 CFR PART 2 OF APRIL 26 1989 TO DO AWAY WITH MY RIGHT TO A FORMAL HEARING IF FOR ANY REASON YOU OR YOUR SUBORDINATES DECIDE TO REMOVE MY SRO LICENSE REGARDLESS OF THE REASON. GENTLEMEN THIS VIOLATES MY CONSTITUTIONAL RIGHTS OF BEING INNOCENT UNTIL PROVEN GUILTY BY JURY OR NON JURY TRIAL. I HAVE BEEN DEALING WITH REPRESENTATIVES OF THE NRC FOR MORE THAN 15 YEARS NOW AND IT IS A SAD THING TO SAY BUT LESS THAN 10% HAVE ANY EXPERIENCE AT ALL IN THE CONSTRUCTION ,OPERATION,OR MAINTENANCE OF COMMERCIAL NUCLEAR REACTORS. BUT THESE ARE THE PEOPLE THAT MAKE THE RULES THAT I MUST CONFORM TO OR LOOSE MY JOB OR MY COMPANY MUST SHUT DOWN THEIR REACTORS;OR EXPEND MILLIONS OF DOLLARS TO SATISFY ONE OF THEIR WHIMS. CASE IN FACT; ALL THE COMMISSIONERS HAD GIVEN MY COMPANY A LICENSE TO TAKE OUR UNIT 2 CRITICAL BUT BECAUSE THE REGION 2 BOSS AT THE TIME HAD A PERSONAL VENDETTA WITH OUR UPPER MANAGEMENT HE TOLD US (WITH TWO COMMISSIONERS PRESENT) THAT WE COULD NOT TAKE OUR UNIT CRITICAL UNTIL WE ACCOMPLISHED ALL HIS PERSONAL WHIMS AND NEITHER COMMISSIONER SAID A THING. I SPENT THE BEST YEARS OF MY LIFE DEFENDING THE CONSTITUTION OF THE UNITED STATES WHERE EVER AND WHEN EVER MY COUNTRY NEEDED IT. SINCE I HAVE

RETIRED, I

HAVE WATCHED THE FEDERAL,STATE,COUNTY,OR THEIR APPOINTEE'S SLOWLY CHOP AWAY MY CON-STITUTIONIAL RIGHTS. NOW IN THIS PROPOSAL YOU ARE TRYING TO CHOP OFF ANOTHER BIG HUNK; NO TRIAL 1I AM GUILTY NO MATTER WHAT WHIM IT MAY BE OR WHO'S WHIM IT MAY BE. IF YOU ARE GOING TO MAKE A NEW RULE, AT LEAST GIVE ME OR LEAVE ME MY RIGHTS.I AM SORRY IF I HAVE STEPPED ON A FEW TOES WITH THIS REPLY; BUT I HAVE BEEN BUILDING,OPERATING,OR MAINTAINING NAVY OR COMMERCIAL REACTORS SINCE 1958, AND I MUST HAVE LEARNED A LITTLE IN ALL THOSE YEARS. I HAVE WITNESSED MANY CHANGES OVER THIS PERIOD OF TIME AND I WISH THAT I COULD SAY THAT MOST WERE FOR THE BEST. IN ALL HONESTY, I CANNOT SAY THAT MORE THAN 30% WHERE FOR THE BEST; THE REST WHERE NOT NECESSARY OR MADE THE OPERATION OF NUCLEAR PLANTS MORE ON THE UNSAFE SIDE RATHER THAN ON THE SAFE SIDE. THE ONLY THING THAT.I CAN CONTRIBUTE THIS TO IS THAT THE PEOPLE THAT WERE RESPONSIBLE FOij, THE CHANGES DID NOT HAVE OVER ALL EXPERIENCE OR KNOWLEDGE OF THE CONSTRUCTION,OPERATION,OR MAINTENANCE (SUCH AS INTERRELATION OR INTERACTIONS OF SYSTEMS) OF NUCLEAR REACTORS AND THEIR SUPPORT SYSTEMS. WE DO NOT OPERATE THESE BIG MOMMA'S IN A LABORATORY; WE OPERATE THEM IN THE REAL WORLD WHICH IS A DIFFERENT BALL GAME ALL TOGETHER. 1 lUL 1 1 1989

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BOX 128, FT. PIERCE, FLA. 33454 FLORIDA POWER & LIGHT COMPANY 2 VERY RESPECTFULLY,

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F.G."CHIEF" DAVIS NUCLEAR PLANT SUPERVISOR ST. LUCIE PLANT

AGENCY: ACTION:

SUMMARY

DOCKET NUMBER PR J__ -. PROPOSED RULE ~ {I11UJ?CJbO NUCLEAR REGULATORY COMMISSION 10 CFR Part 2 RIN: 3150-ADl 7 Informal Hearing Procedures for [7590-01] '89 AP 21 A10 :35 Nuclear Reactor Operator Licensing Adjudications Nuclear Regulatory Commission. Proposed rule. The Nuclear Regulatory Commission (NRC) is proposing an amendment of its regulations to provide rules of procedure for the conduct of informal adjudicatory hearings in nuclear reactor operator licensing proceedings. The Atomic Energy Act of 1954 requires that the NRC, in any proceeding for the granting, suspending, revoking, or amending of an NRC license, including licensing as an operator or senior operator at a nuclear reactor, afford an interested person, upon request, a "hearing." This proposed rule would include reactor operator licensing proceedings under the infonnal hearing procedures already established for materials licensing proceedings. DATES: Comment period expires June 26, 1989. Comments received after this date will be considered if it is practicable to do so, but assurance of consideration can be given only for comments filed on or before that date. ADDRESSES: Submit written comments to: Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555, ATTN: Docketing and Service Branch. Hand deliver comments to Docketing and Service Branch, One White Flint North, 11555 Rockville Pike, Rockville, MD between 8:15 am and 5:00 pm.

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[7590-01] Examine co11111ents received at: The NRC Public Document Room, 2120 L Street NW., Washington, DC. FOR FURTHER INFORMATION CONTACT: Karla Smith or Paul Bollwerk, Attorneys, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555, Telephone (301) 492-1600. SUPPLEMENTARY INFORMATION: Section 189a of the Atomic Energy Act of 1954 (AEA) (42 U.S.C. 2239(a)) provides that in any proceeding for the granting, suspending, revoking, or amending of any license, the NRC shall grant a hearing upon the request of any person whose interest may be affected by the proceeding. Among the licenses issued by the NRC are those for operators and senior operators of nuclear reactors (AEA section 107, 42 U.S.C. 2137; 10 CFR Part 55). The Conmission's rules of practice generally provide for two types of hearing procedares for licensing proceedings -- formal and informal. Under 10 CFR Part 2, Subpart G, those requesting a hearing with respect to a reactor licensing action or any agency enforcement activity affecting a license generally are provided a fonnal, trial-type hearing conducted in accordance with the provisions of the Administrative Procedure Act, 5-U.S.C. 554-557 and 10 CFR Part 2, Subpart G. On the other hand, a request for a hearing regarding an NRC materials licensing action generally entitles an interested person to an infonnal, legislative-type hearing in accordance with 10 CFR Part 2, Subpatt L. NRC regulations presently do not specify the type of hearing to be afforded in the event that an interested person, including an applicant for a reactor operator license or a licensee, requests a hearing with regard to agency action concerning a reactor operator license. Previously, the

• C011111ission has declared in individual orders responding to operator hearing 2

[7590-01] requests that an applicant for an operator license whose application 1s denied is entitled only to an infonnal hearing in accordance with procedures li~e those now embodied 1n Subpart L. E.g., David W. Held (Senior Operator License for Beaver Valley Nuclear Power Station, Unit 1), Docket No. 55-60402 (Corrm. Aug. 7, 1987). In the wake of NRC's recent adoption of Subpart L (54 FR* 8696), the Co1TM1ission has decided that the Conmission's rules should reflect the practice followed in the individual orders. Accordingly, the C01T111ission proposes to amend Subpart L to include within its scope proceedings for the grant, renewal, or licensee-initiated amendment of a reactor operator's license. The proposed rule also specifies that any reactor oper~tor licensing proceeding that was initiated by a notice of hearing issued under§ 2.104, a notice of proposed action under§ 2.105, or a request for hearing under Subpart B of 10 CFR Part 2 on an order to show cause, an order for modification of license, or a civil penalty is to be conducted in accordance with the procedures for fonnal hearings set forth in Subpart G of 10 CFR Part 2. Environmental Impact: Categorical Exclusion The NRC has detennined that this proposed rule is the type of action described in categorical exclusion 10 CFR 51.22(c)(l). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this proposed rule. 3

[7590-01] Paperwork Reduction Review This proposed rule contains no 1nfonnation collection requirements and therefore is not subject to the requirements of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.). Regulatory Analysis The Atomic Energy Act affords interested persons the right to a hearing regarding a reactor operator licensing proceeding. As the Co111J1ission previously indicated in its decision in Kerr-McGee Corp. (West Chicago Rare Earths Facility), CLI-82-2, 15 NRC 232, 241 (1982), aff 1d sub n0111., City of West Chicago v. NRC, 701 F.2d 632 (7th Cir. 1983), the use of 1nfonnal procedures generally involves less cost and delay for the parties and the Convnission than the use of fonnal, trial-type procedures, the principal other procedural alternative. Also, procedures must be in place to allow for the orderly conduct of those adjudications. Codifying the infonnal hearing procedures for operator licensing proceedings is preferable to the present practice of establishing the procedur~s to be followed on a case-by-case basis. By codifying the procedures, the Commission will avoid the expenditure of time and resources necessary to prepare the individual orders that previously have been used to designate those procedures. This proposed rule is the preferred alternative and the cost entailed in its promulgation and application is necessary and appropriate. The foregoing discussion constitutes the regulatory analysis for this proposed rule. 4

[7590-01] Regulatory Flexibility Certification As required by the Regulatory Flexibility Act, 5 U.S.C. 605(b), the NRC hereby certifies that this rule, if prolll.llgatea, will not have a significant ~, economic impact upon a substantial number of small entities. Many operator license applicants or operator licensees fall within the definition of small businesses found in section 34 of the Small Business Act, 15 U.S.C. 632, or the Small Business Size Standards set out in regulations issued by the Small Business Administration at 13 CFR Part 121, or the NRC's size standards published December 9, 1985 (50 FR 50241). While the proposed rule would reduce the litigation cost burden upon applicants or licensees because of the infonnal nature of the hearing, the requirement that they submit filings and documentary irifonnation detailing contested legal and factual issues is still required. Some cost reduction in comparison to the cost of participating in a formal adjudicatory hea~ing can be anticipated, although it is problematic whether that reduction as a whole will be significant. Certainly, the use of informal procedures will not increase significantly the burden upon applicants or licensees to engage in hearings. 5

[7590-01] Backfit Analysis The NRC has determined that the backfit rule, 10 CFR 50.109, does not apply to this proposed rule and, therefore, that a backfit analysis is not required for this proposed rule, because these arnend_ments do not involve any provisions which would impose backfits as defined in 10 CFR 50.109(a)(l). List of Subjects in 10 CFR Part 2 Administrative practice and procedure, Antitrust, Byproduct material, Classified infonnation, Environmental protection, Nuclear Materials, Nuclear power plants and reactors, Penalty, Sex discrimination, Source material, Special nuclear material, Waste treatment and disposal. For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and 5 L'.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR Part 2: 6

[7590-01] PART 2 -- RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS

1. The authority citation for Part 2 continues to read as follows:

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. 2241); sec. 201, 88 Stat. 1242, as amended (42 u.s.c. 5841); 5 u.s.c. 552. Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104, 105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, as amended (42 U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 2135); sec. 102, Pub. L. 91-190, 83 Stat. 653, 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. 955, 83 Stat. 444, as amended (42 U.S.C. 2236, 2282); sec. 206, 88 Stat. 1246 (42 U.S.C. 5846). 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, 2.780 also issued under 5 U.S.C. 557. Section 2.764 and Table lA of Appendix C also issued under secs. 135, 141, Pub. L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). Section 2.790 also issued under sec. 103, 68 Stat. 936, as amended (42 U.S.C. 2133) and 5 U.S.C. 552. Sections 2.800 and 2.808 also issued under 5 U.S.C. 553. Section 2.809 also issued under 5 U.S.C. 553 and sec. 29, Pub. L. 85-256, 71 Stat. 579, as amended (42 U.S.C. 2039). Subpart K also issued under sec. 189, 68 Stat. 955 (42 ll.S.C. 2239); sec. 134, Pub. L. 97-425, 96 Stat. 2230 (42 U.S.C. 10154). Subpart L also issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239). Appendix A also issued under sec. 6, Pub. L. 91-560, 84 Stat. 1473 (42 U.S.C. 2135). Appendix B also issued under sec. 10, Pub. L. 99-240, 99 Stat. 1842 (42 U.S.C. 2021b et seq.).

2. The heading of Subpart L of Part 2 is revised to read as follows:

Subpart L - Infonnal Hearing Procedures for Adjudications in Materials and Operator Licensing Proceedings 7

[7590-01]

3. Section 2.1201 is revised to read as follows:

§ 2.1201 Scope of subpart. (a) The general rules of this subpart govern procedure in any adjudication initiated by a request for a hearing in a proceeding for (1) The grant, transfer, renewal, or licensee-initiated amendment of a materials license subject to Parts 30, 32 through 35, 39, 40, or 70 of this chapter; or (2) The grant, renewal, or licensee-initiated amendment of an operator or senior operator license subject to Part 55. (b) Any adjudication regarding a materials license subject to Parts 30, 32 through 35, 39, 40, or 70, or an operator or senior operator license subject to Part 55 that is initiated by a notice of hearing issued under§ 2.104, a notice of proposed action under§ 2.105, or a request for hearing under Subpart B of 10 CFR Part 2 on an order to show cause, an order for modification of license, or a civil penalty, is tc be conducted in accordance with the procedures set forth in Subpart G to 10 CFR Part 2. ~ A""., Dated at Rockville, MD, this 1-£> - day of~' 1989. For the Nuclear Regulatory COl1lllission

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