ML23156A564
| ML23156A564 | |
| Person / Time | |
|---|---|
| Issue date: | 05/17/1972 |
| From: | NRC/SECY |
| To: | |
| References | |
| PRM-2 | |
| Download: ML23156A564 (1) | |
Text
DOCUMENT DATE: 05/ 17/1972
TITLE: PRM by En vironmental Defense Fund to Amend the NRC's Part 2 Rules of Practice
CASE
REFERENCE:
PRM on 10 CFR Part 2
KEYWORD: RULEMAK IN G COMMENTS
Document Sensitivity Non-sensitive - SUNSI Review Complete I ',
ATOMIC ENERGY COMMISSION ENVIRONMENTAL DEFENSE FUND, INC.
Filing and Denial of Petition for Rule Making
Notice is hereby given that the Environmental Defense Fund, Inc.,
by letter dated May 17, 1972 has filed with the Commission a petition for rule making to amend the Conmission's Rules of Practice, 10 CFR Part 2.
The petitioner, in anticipation of the enactment of Public Law 92-307, which added.a new section 192 to the Atomic Energy Act of 1954, as amended, (the Act) providing for the use of expedited procedures in proceedings in which a hearing is otherwise required before issuance of an operating license, in connection with the issuance of certain temporary operating licenses for nuclear power reactors whose electrical energy is needed to meet specified energy needs, requested promulgation of procedures specified in the petition for the conduct of such pro ceedings. A copy of the petition is available for inspection in the Commission's Public Document Room at 1717 H Street, N.W., Washington, D. C.
The Commission has given careful consideration to that petition for rule making and is appreciative of the suggestions made therein.
However, the Corrmission has itself developed the amendments to Parts 2 and 50 published at p., in implementation of Public Law 92-307.
- 2 -
The Commission believes that those amendments are a more appropriate means of carrying out the Congressional purpose, although some of the petitioner's suggestions have been appropriately implemented and the amendments do, in fact, include provisions similar to some of the provisions suggested in the petition for rule making.
Accordingly, the petition for rule making filed by the Environmental Defense Fund, Inc., is denied.
For the Atomic Energy Commission
Secretary of the Commission W. B. McCool
Dated atGermantown,Maryland this
13th, 1972 day of June UM BE R PETITION RULE PRM -
BBBLXNo ROISKAN AND KESSLER 1712 N STRIIET, NORTHWEST WASHINGTON, D. C. 20039 IIDWARD BERLIN AIIIIA CODE 202 ANTHONY Z. ROISMAN,-HONE 833*9070 GLADYS KESSLER DAVID R. CASHDAN
KARIN "* SHELDON May 17, 1972
Mr. Stanley Robinson AY I 7 19 72 Public Proceedings Branch Olfit~ of the, r~lary Office of the Secretary Pt,~"t *,.otllnn ;.1 gs U. s. Atomic Energy Commission Washington, D. C. 20545
Dear Sir:
Petition For Rule Making and Proposed Regulations. It further Enclosed herewith is Environmental Defense Fund, Inc.
Act, promulgated pursuant to emergency authority under the states the rules to implement Section 192 of the Atomic Energy Administrati ve Procedure Act in order to facilitate early de cisions on requests for interim operating licenses.
Anthony z. R *s an Counsel for Environmental Defense Fund
AZR/pq D CKE r NU ~BER PETITION RULE PRM -
BEFORE THE UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION
PETITION FOR RULE MAKING ) AND MEMORANDUM IN )
SUPPORT )
ENVIRONMENTAL DEFENSE BUND, INC.
PETITION FOR RULE MAKING
INTRODUCTION This petition is being filed pursuant to 10 CFR Part 2, Section 2.801 and 2.802. It is filed on behalf of the Environ mental Defense Fund, Inc. EDF is a non-profit, tax exempt membership corporation organized under the laws of the State of New York. EDF is made up of scientists and other citizens de dicated to the protection of man's environment, employing legal action where necessary. EDF has, through litigation, sought to protect the environment from various forms of pollution. Its Scientists Advisory Committee, with more than 200 members, in cluding some of the world's foremost environmental scientists, assures that positions taken are thoroughly supported by scientific evidence. In its activities, EDF does not concern itself with the pecuniary interests of individuals; rather, it seeks to assure the preservation or restoration of environmental quality on behalf of the general public. EDF has over 27,000 individual members of whom more than 6,000 reside in the State of New York, 647 in Westchester County, 25 in Croton-on-Hudson, 18 in Ossining and 10 in Peekskill.
2
There is presently pending before an Atomic Safety and
Licensing Board the application of the Consolidated Edison*
Company of New York for an interim license to operate its
Indian Ponnt No. 2 Nuclear Power Plant at up to 90% of*full
power. AEC Docket No. 50-247 EDF is a party to that proceed
ing and has opposed the.issuance of the interim operating li
cense.
This rule making petition seeks the establishment of pro-
cedures for the conduct of contested interim license hearings
which will assure that prompt decisions are reached with respect
to plants which, like Indian Point No. 2, are ~lleged to be needed
to meet alleged critical power shortages. The procedures would
be adopted pursuant to new legislation adding Section 192 to the
Atomic Energy Act of 1954. The legislation has just passed the
Congress and is expected to be signed by the President immediate
ly. The primary purpose for this Petition is to assure the im
mediate adoption of rules of practice pursuant to Section 192
which will be legally defensible under Section 192 and which will
fulfill the purposes of that legislation.
In the last several months the AEC has frequently testified
that it needs temporary operating license authority to respond to
possible summer shortages. Certa~nly that allegation, supported
by the Federal Power Commission, would warrant the issuance of 3
regulations under Section 192 without a prior notice in the
Federal Register. This petition is filed even before Section
192 is officially-adopted (ioe. before it has been signed by
the President) in order to ensure that the Commission has avail
able one possible set of regulations which can implement Section
192 without foreclosing the public's rights in the required
hearings.
In recently published proposed regulations for the con~
duct o~ contested licensing proceedings, the Commission has
attempted to use* an overly stringent standard for determining
whether to allow public intervention. Such an approach to the
problem of the protracted hearing-reflects a basic distrust by
the Commission in its own ability to guarantee full administra
tive procedural rights in hearings without permitting the hearing
to get*out of hand. We are fearful that a similar approach
might be used for Section 192 and believe these proposed regu
lations demonstrate a feasible and far more desirable alternative.
In Citizens For Allegan County, Inc. v. _ Federal Power* cornrn:ission
414 F2d 1125, the Court in language particularly pertinent here
s:a,td (414 '.!r2d at 11341:
Care* must be taken to avo.;t,d con~us,mg the. *t.s:sue and dismiss*ing a consumer's* claJ._m on jur.is.,,.
dictional grounds when the real grounds-of re~
jection*go to the merits.
- 4
SECTION 192
This section was added to the Atomic Energy Act of 1954
in response to the AEC's request.for authority to issue temporary
operating licenses for nuclear power plants in those cases where
the power from the plant is needed to avert power shortages.and
the problem arises between now and October 30, 1973. The date
selected reflects the AEC's belief that by then it will have
completed the transition to a more orderly and less protracted
hearing procedure and that sufficient lead time will be built in
to licensing hearings to._ avoid the present problems. In approving
the legislation the Joint Committee on Atomic Energy was re
sponsive to this need and said (S. Rep. No.92-787, 92nd Cong.,
2nd Sess, p. 3) ~
S. 3543 is designed to be responsive to the Commission's request. It is also responsive to the concerns ex pressed by interested members of the public that they not* be deprived of an opportunity for a complete re view of the safety and environmental aspects of the operation of a nuclear power plant, and that the li censing of nuclear power reactors continues to be the subject of public proceedings in which members of the public whose* interest may be affected by the proceeding have an opportunity to present their views.
The legi~lation which received approval by the JCAE (S. 3543
and H.R. 14655) was markedly differ;ent than the legislation ori
ginally considered by the Committee (H.R. 13731, 13732 and 14065).
The most marked difference between those bills and the legislatiQn
which was enacted is the provision for public hearings. In
H.R. 14065 for instance, the provisions of Sections 181 and 189a 5
0~ the. Atomic Energy Act and Sections 554, 556 and 557 of Title
5 of the U.S. Code were specifically inapplicable to the in
terim licensing proceeding. Those are the Sections which specify
the right to a hearing (Section 189 of the Atomic Energy AcB and
the procedures to be followed in the conduct of the hearing
(Sections 181 of the Atomic Energy Act and 554, 556 and 557 of
Title 5b Significantly Section 192 as enacted not only leaves:
these sections in full force but specifically requires that the
"Commission shall hold a hearing".
There cannot be any doubt that the decision to issue a
temporary opera ting license is governed by Section 554 of Title 5,
i.e. is an "adjudication" under the Administrative Procedure Act
and not a legislative type procedure as used for rule-making.
First, it has*been generally held that when an agency statute
requires a "hearing" there must be an "adjudication 11
- Storer
Broadcasting v. FCC 351 U.S. 192, 201 where an adjudication is
required under the Federal Communications Commission statute
provision which requires a "full hearing"; FPC v. Texaco
377 U.S. 33, 44-45, Public Utility District No. 1 v. FPC 242 F2d
672, 678-9 and Citizens for Allegan County,* Tnc. v.* FPC 414 F2d
1125 all of which indicate that the statutory requirement in the
Federal Power Act for a "hearing" means an adjudication.
Sect:i:,on 189a of the Atomic Energy Act requi.res a "hearing
this has always been understood by Congress to mean an
"adjudicaton". For instance in 1962 when the JCAE approved 6
legislation authorizing the establishment of three member hearing
boards it went out of its way to specifically indicate that se
lected portions of Sections 556 and 557 of Title 5 (then Sections
7 and 8 of the Administrative Procedure Act) would not apply to
limit the Commission's authority to establish these hearing
boards. S. Rep. No. 1677, U. S. Code Congressional and Admini
strative News (1962) pp. 2207, 2211-15 This specific reference
to the inapplicability of portions of Sections 556 and 557 would 1/
have been unnecessary unless those sections applied.- The Committee
made clear that the AEC decision to issue a permit or a license
1/
On the floor of House when the legislation establishing Section 192 was passed.(Cong. Rec. (Daily Ed.) May 3, 1971, H. 4038)
Congressman Hosmer suggested that the fact that the phrase
'bn the record" was excluded from the bill meant that the hear ing would not be adjudicatory. The statement is confusing because the term adjudicatory applies to the entire process of which the hearing is only one part. Section 554 of Title 5 applies to ltadjudicatibns" some of which may not involve hear iµgs. See Section 554(c) (2) of Title 5 for instance. It is clear that the process by which the Commission issues any operating license, temporary or full-term, is an adjudication.
As the JCAE observed in 1962 (S. Rep. No. 1677, supra) and again today (S. Rep. No.92-787, supra) the hearing need not be a trial-type hearing and expedited and informal procedures can and should be utilized. SuGh procedures are not incon sistent with the Administrative Procedure Act and the pro posed regulations indicate the breadth of the flexibility.
but the decision must be "on the record" even though there is no cross-e~m:ination or oral testimony.
7
was always meant to be. "on the record", even though those words
do not appear in Section 189a, when it stated (S. Rep. No. 1677,
supra, p. 2214):
This amendment, although relaxing the mandatory hearing requirement, should not prejudice the public interest in reactor safety determinations. A mandatory hearing will
- stilt be held at the.critical point in reactor licensing the construction permit stage-where the suitability of the site is to be judged.
- Succeeding regulatory actions will take place only upon publication and sufficient ad vance notice to afford an interested party the oppor tunity to intervene. In these succeeding stages, if a hearing is* not held, the decision would still be on the public record and if an important safety question was involved, could be made by the Board. (emphasis added)
Were there any lingering doubt on this issue the Supplemental
Views of Senator Baker attached to S. Rep. No.92-787 made abun
dantly clear the Committee's intent to preserve the rights as-
sociated with an "adjudication". (S. Rep. No.92-787, supra,
- p. 14) :
The bills finally agreed to by the Committee, S. 3543 and H.R. 14655, far from waiving sections 181 and 189a of the Atomic Energy Act and sections 554, 556 and 557 of Title 5, preserve and reinforce the rights and pro cedures guaranteed by those provisions. The agency process whereby the Commission or its delegate makes the findings required in new subsection 192b and de termines whether* or not to issue a temporary operating license is an adj~~iea,t;L.oo required to be determined on the record within the meaning of section 554 of Title 5.
The bills require a mandatory public hear~ng with ~e spect to any petition for a temporary operating license, even if such a petition is not contested. This hearing would be held on an expedited basis, in accordance with the procedural framework.of section 554 of Title 5. We note in the body of our report that the hearing.itself need not "necessarily be a trial-type hearing." That is, of course, true. Section 554 specifically provides that 8
a "trial-type hearing 11 must be held only when there is a controversy and *such a controversy cannot be determined by consent of the parties. In the event that there is an unsettled controversy in any adjudi cation condricted pursuant to these bills, sections 556 and 557 would clearly apply.
The scheme of the proposed regulations is to compel all ~~Qf.C~_~ED ~E_~ULAT:C:GNS'.
parties and the board to work full-time, if necessary, to en
sure a prompt decision on a request for a temporary operating
license. Any expedited hearing procedure depends upon the
cooperation of the parties but steps can be taken to encourage
that cooperation. The proposed regulations attempt to build in
those steps.
The process begins with the Petition which must be sub
stantially more detailed and specific than is the present prac
tice. For instance, a request for a 1% testing license was
filed on behalf of Vermont Yankee (Docket No. 50-271) on October
22, 1971. The request included only the most superficial factual
support and had to be substantially expanded prior to the commence
ment of the hearing. Obviously the Applicant could have pro-
vided all of the relevant data on October 22 and thereby improved
the ability of all other parties and the board to prepare for the
November 30 hearings.
To prevent similar problems under Section 192 the proposed
regulations not only specify, indetail, what is required to be in
cluded in the Petition but intend that the Director of Regulation
will refuse to accept a Petition for filing unless all of the 9
data required is provided. The data cannot merely be the con
clusions of the Applicant's witnesses but must also include the underlying facts from which these conclusions were drawn.
To further assure that all data is available at the earliest
time the filing of the Petition immediately entitles parties to
the main licensing proceeding to obtain all relevant documents
without making a formal written request. Both the Staff and the
Applicant are expected to be liberal in granting these requests
and to avoid raising procedural objections which may be unwar
ranted and certainly will be time - consuming. Penalties for
gross abuse of the request for documents or for gross abuse of
the right to object to the request for documents are included in
the regulations in the hope that this will forestall endless
quibbling over documents.
Armed with this data the other parties to the proceeding
must develop, within 14 to 24 days, an entire case in support of
or in opposition to the Petition. The filing of their affidavits
must be accompanied by a detailed description of the issues of
concern, the factual and legal basis for the parties position on
those issues, the further facts, if *any, which the party wishes
to develop and how those facts are to be developed. Vague and
unsubst~n,tiated positions will be disallowed. On the other hand
reasonably specific contentions for which more data is needed
which is not*readily available will be sustained and the hearing
board will permit development of the additional. facts in the 10
manner best suited to the need for a prompt decision.
Under the proposed regulations and in a case where all
relevant facts are developed without cross-examination, i.e.
where the Applicant and the Staff have been particularly
thorough and candid in their presentations, it is possible for
a decision on a Petition to be issued on the 24th day following
the filing. Certainiy within two months of the filing of a
Petition a decision could be reached on the Petition.
However, the proposed regulations contemplate that but for
plants, if any, seeking temporary operating authority for the
Summer of 1972, there will be more than two months available for
a decision on the Petition. Predictions with regard to need for
certain plants for the Winter of 1972-73 and the Summer of 1973
were made by the AEC, the FPC, the NERC and a number of utilities.
These same organizations should also be able to determine whether
the full-term license hearings on those plants will extend beyond
the date on which a licensing decision is required. It would be
an abuse of the proposed regulations and the Congressional intent
of Section 192 for the utilities to wait until the last moment to
seek temporary operating authority. Of course it could needlessly
prolong the full-term operating license hearing if the request for
temporary operation is made when it will clearly not be needed -
i.e. when the full-term operating license hearing will conclude
prior to the date on which the power will be needed.
Once the :Petition has been filed and all affidavits-of other
parties have been received the hearing board has ten days to issue 11
an order. The order will be*based on the data presented and on
the day the order is issued the board will hold a hearing at
which time the data already presented by the parties will be
offered in evidence. Any issues of concern to the board, having
previously been identified for the parti~s would be explored by
the board at this time. This may be the only day of hearing if
the board concludes that no further factual development of the
issues is required.
If further factual development is required the board's order
will specify the issues for which more facts are needed, how those
facts are to be developed and the time limit within which they are
to be developed. For instance, if a party has been unable to ob
tain identified categories of documents which the board believes
should be produced the production order would be issued and the
date on which the party must supplement its presentation would
also be set. Further days of hearing would be required only if
cross-examination were allowed or if the board wished a proforma
hearing for the purpose of accepting offers of proof, The time
allowed for the various steps leading to a conclusion of the li
censing adjudication should be measured in days or at most weeks
never in months.
The board's are given guidelines to help them focus on the
relevant considerations in reaching conclusions on what further
development of issues should be allowed. With a few exceptions,
most hearing board chairman lack experience in conducting contested 12
hearings and needed more guidance from the Commission. This will
not only improve the efficiency of the board's but will develop uniformity in their decisions. 2/
In Section 192 reference is made to a 1full disclosure on
all substantial issues". The phrase "substantial issues" is not
defined in the statute nor does the legislative history provide
any guidance. The thrust of the phrase is directed at eliminating
issues which require time for factual development. Obviously it
should not be used to limit the right to obtain production of
docume.nt during the 14 to 24 day period prior to the other parties
filing their affidavits. It is also not relevant to the pre
sent~tion of legal arguments in the brief accompanying the affi
davits. But in ruling on those legal arguments and factual issues
related to them the board would apply the substantial issue
stanard to determine if further factual development should be
permitted.
The "substantial issues" standard should at least mean that
if the issue raised would not affect the outcome of the proceed
ingi t should be dismissed. T~~, n0t enJ,X" 11').e.a;n_i;;,, :t?el*eva,ncy~ but
2/ One suggestion not directly related to the proposed regu
lations but that should be considered is a Commission.
operated decision reporting service which would quickly and thoroughly report regulatory actions and all board decisions. Present services in this area are slow, ex pensive and incomplete. A common body of regulations and case law would help to improve uniformity and efficiency.
13
also magnitude. Thus if an environmental issue which is rele
vant would not significantly affect the balance between costs
and benefits the board should not permit extensive factual de
velopment of the issue. To assist the board in applying the
magnitude standard the parties are required to not only specify
issues but to describe precisely what they seek to prove through
further factual development.
The "substantial issues" standard should not be an excuse
for heavy-handed* action in which a board permits its own per
sonal convictions to blur the evidence. If the Applicant has
not made a case on an issue then even if the board believes the
Applicant is right it should not rule out the issue until the
record of the adjudication contains sufficient data to support
the Applicant.
Section 192b(3) refers to the need to obtain "data from
appropriate Federal and State governmental bodies" with regard
to the need for electricity. The Committee Report refers to
Commission reliance on FPC data. This does not mean that the
FPC or any other official data is accepted without the right of
a party to challenge it. It still must be shown that the FPC
figures utilize proper demand projections, are based upon an
historicilly valid reserve figure, adequately reflect the ex
haustion of all available alternatives, etc. To the extent an
Applicant or the Staff seeks to rely on this data the authors of
the data will have to be willing to produce their underlying
factual data and, if necessary be available for cross-examination.
14
Finally, the proposed regulations build in flexibility to
permit a board to adjust schedules to the needs of the situation.
No adjudication under Section 192 should be long but some can
afford to be longer than others. As the Court in Allegan, supra,
cautioned in allowing the FPC to use an extremely expedited pro
cedure (414 F2d at 1128):
The use of such a procedure puts a heavy burden on the agency to demonstrate that its procedure com ported with fairness and requirements of law.
Nonetheless the Court went on to establish the solid legal justi
fication for the kind of expedited procedure used there and pro
posed here (414 F2d at 1128):
However, the right of opportunity for hearing does not require a procedure that will be empty sound and show, signifying nothing.
Dated: May 17, 1972
- -,-.,.___.,.,,--------.,----. G flt i i. LJ
"~ir.n IJu(,,.l.i
. MP1Y 1 71972 D> DOCKET NUMBER r::-;) Oiti~, O/ me SBCTelary PETITION RULE PRM-
'-~ ~). P:~f1/1c rr:::]e2LJings
/ tnrn~!1
<o PROPOSED REGULATIONS
10 CFR, Part 2 is amended by adding a new subpart entitled:
- 10. Regulations Governing The Issuance Of Temporary Operating
Licenses Pursuant To Section 192 of the Atomic Energy Act
of 1954
Section 2.1000 - Petition For A Temporary Operating License
Any Applicant for an operating license which is the subject
of a contested hearing and which seeks to obtain a license to
operate a nuclear power plant for less than the power level or
term or both sought in the operating license application must
file a Petition with supporting affidavits requesting such
authority. The Petition and affidavits'must at least include
the following:
- a. The full evidentiary presentation which is contemplated
by the Applicant in support of the petition including
all relevant facts known to the Applicant with regard to
the relevant issues and all documents relied upon or to
be relied upon by the Applicant in support of the Peti
tion.
- b. The relevant issues will include 1) the environmental
affect of the proposed level and duration of operation,
the basis for concluding that full term, full power
operating license issues are not relevant and all steps
to be taken during that period to protect the environ
ment including steps to avoid alterations in the 2
environment the effects of which are not fully known,
- 2) the safety considerations which are relevant and
the basis for the conclusion that any full term, full
power operating license issues are not relevant, 3) the
basis for the assertion that the temporary operating
license is essential toward insuring that the power
_ generating capacity of th~ utility system or power pool
(whichever is relevant) is at, or is restored to, the
levels required to assure the adequacy and reliability
of the power supply taking into account factors which
include but are not limited to a) evidence regarding
the steps previously taken or to' be taken to prevent
an emergency such as eliminating planned maintenance
or other planned shutdowns of plants on this system
and other inter-connected systems during the antici
pated period of power shortage,discontinuing all pro
motional advertising, promotional rates or other in
centives to use electric power, seeking changes in
rate structures to discourage electric consumption,
actively encouraging* reduced use of electricity
through extensive public education on the efficient
uses of electricity, actively en_couraging large indus
trial and commercial users of electricity to obtain all
or part of their electricity on an interruptible load 3
basis, b) alternative available sources of power such
as firm purchase contracts from other systems or re
gions, installation of interconnections with other
systems or regions particularly those with peaks at
different times of the year or during different parts
of the day, utilization of direct current transmission
of power for long distance transmission of.bulk power,*
c) the anticipated reliability of the particular nuclear
power plant based upon the operating experience of
similar nuclear power plants during the early weeks and
mon.ths of operation d) availibili ty of the particular
nuclear power plant based upon the status of construction,
pre-operational testing, corrective steps or plant.modi
fications already required to be completed by the AEC
regulatory staff (including compliance division) prior
to obtaining the power level sought, state or federal
permits, licenses or approvals required prior to opera
tion at the power level sought e) the historical reserve
requirements of the system based upon at least.the last
ten years disclosing the previous unavoidable causes for
the use of the reserves during the comparable time
period for which the operating authority is sought, the
criteria and factual basis for the criteria upon which
the.historical reserve figure is based, any conditions 4
now known to the Applicant which.would suggest that the
reserve required for the period for which operating
authority is sought should be higher or lower than the
historical figure f) possible endangerment to the public
health and safety in the event of power shortages re
lated specifically to the extent to which the unavaili
bility of the particular plant at the power level and
time period requested would increase that danger, the
specific classes of customers which would be affected
by demand exceeding supply and the basis for selecting
those customers, the steps taken in the event demand
exceeds supply including voltage reduction and/or load
shedding including equipment for this and a pre-deter
mined plan for its use, and the anticipated duration of
such steps based upon the historically established
duratio~ of the peak demand level which would require
the use of voltage reduction and/or load shedding and
a detailed explanation of the dangers to-health and
safety of such steps, the most probable series of
events which could occur which would create a situation
in which demand exceeded supply including the likeli
hood of the situation being known in advance due to
plant outage(s) occurring at some time other than peak
demand and protective steps which could be taken to
avert demand exceeding supply once the existence of 5
plant outages were* known g) the plans of the all
reliability regions or power councils to which the
Applica~t belongs which describe the procedure to
be used during emergencies by the member companies
- c. A certificate showing that service of the Petition
has been made on all parties to the contested pro
ceeding and that the Petition has been received by
them.
- d. The Petition may be accompanied by a brief in support
of the Petition.
Section 2.1001 - Notice of Receipt of Petition
Based upon the determination.of the Commission, the Secre
tary of-the Commission shall promptly notify all parties to the
contested licen~ing proceeding by telegram on the date of the
receipt of the Petition of the time within which affidavits of
other patties with respect to the Petition must be received but
in no event shall less than 14 days or more than 24 days be
allowed for receipt of such affidavits. In setting the time for
receipt of affidavits the Commission will allow the maximum time
permitted by law consistent with the imminence of.the alleged
power shortage.
6
Section 2.1002 - Availibilily of Infoimation Within Time Period
Allowed For Filing Of Affidavits Of Other Parties
In keeping with the expedited nature of the proceeding
authorized by this subpart and in order to provide for the fullest
possible disclosure of any genuine conflict on the issues the
Applicant.and the Regulatory Staff are directed to make available
to any other party in the proceeding any documents requested
~xcept as precluded by Subpart 9 of Part 2 of these Regulations}
whether oral or written which are relevant to the Petition or
could result in the production of documents which could lead to
data which is relevant to the Petition. Production shall be
made at a place convenient to Applicant or the Regulatory Staff
as the case may be but access.to such documents shall be on a
24 hour2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> seven day a week basis except as prohibited by legitimate
and unavoidable security ~equirements.
- a. If qn Applicant refuses to produce the document requested,
the party-requesting the document may pursue the request by formal
motion. Response to such motion must be filed by the Applicant
within 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> after it is received. The motion will be acted
upon by the hearing board within 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> of receipt of the
Applicant's response and the parties to the proce~ding will be
notified of the decision by telegram.
- b. All data alleged to be proprietary will be produced by
the Applicant in the same manner as other documents except that 7
the Applicant may take such reasonable steps as it deems necessary
to prevent disclosure of the documents to persons other than those
assisting the requesting party and if the proprietary data be~
comes part of the record of the hearing it shall be in a parallel
in camera proceeding. No challenges to the alleged proprietary
nature of the data produced shall be permitted except by the
hearing board on its own motion.
- c. If the Applicant refuses to produce documents requested
and the hearing bo~rd later determines that such refusal was not
only wrong but unreasonable the board may allow the party which
requested the documents, additional time to prepare its case to
compensate for the time lost. If the Applicant voluntarily pro
duces documents upon request and if the- *board finds based upon
Applicant motion that the docume.nt request was *not only wrong
but frivilous and made for the purpose of delay or.harassment
the board may awared the Applicant up to the fair costs of the
document production (other than any attorney's fees) to be paid
by the offending party~
Section 2.1003 - Affidavits From Other Parties
- a. The affidavits shall provide a clear exposition of the
issues upon which the Petition is supported or opposed including
a statement of whether the basis for the position taken is legal
or factual.
8
- b. As to each issue identi~ied there shall be a listing
of all facts which the affiant believes need to be proven for it to pr~vail on the issue or all critical facts which it alleges
the Applicant cannot adequately prove and how the failure to
prove the fact will affect Applicants case. As to each fact
listed the affiant shall identify the evidence then available
to it upon which it relies to sustain its position.
- c. To the extent that the affiant believes it is unable to
comply with the requirements of paragraphs a. and b. above with
respect to any issue, any fact or any item of evidence it shall
clearly identify the cause of the inability, the additional
action required to overcome the inability (including the need
for more time to study available data, the need for more dis
covery, the need for cross-examination, and/or the need for
preparation of direct testimony) and as to each additional action
required it shall state (so fas as applicable):
- a. the minimum additional time needed to complete the
action
- b. the reason for the unavailibility of the evidence
- c. the specific objective of any further discovery re
.quested and the documents or categories of documents
which are sought
- d. the specific objective of any cross-examination and the nature of the cross-examination 9
e.. tl:le. ~mbje.ct matter of the proposed direct testimony,
who will present it (if known) and the objective
sought to be achieved by the testimony.
- d. The requirements of this subpart (except the requirement
to file an affidavit within the time prescribed) are not rigid
and inflexible rules and may be waived or relaxed in whole or in
part by the board if it finds that such waiver or relaxation is
warranted by extraordinary circumstances and on good cause shown
and if such waiver will not substantially interfere with the
final resolution of the contested issues on a timely basis con
sistent with the time when the alleged power shortage will be a
problem. See Section 2.1006
- e. The affidavits may be accompanied by a brief in support
of the position taken. The brief should include any argument which
the party believes is relevant to the resolution of the matters
under Section 2.1005.
Section 2.1004 - Response By The Applicant
The Applicant shall have two days after receipt of the affi
davits of all parties to respond to the affidavits. The response
shall be by affidavit as to all facts alleged and may be accom
panied by a brief. To the extent relevant, the Applicant shall conform to the requirement~ of Section 2.1003 in. the preparation
of its affidavits.
10
Section 2.1005 - Action On The Petition A,hd A,f;;f; idavi:ts Of All
Parties
- a. The action to be taken under this section*shall be
taken by the hearing board unless the Commission shall determine
that as to one or more issues the Petition and the Affidavits
raise matters with respect to those. issues which are predominantly
within the knowledge of the Commission such as the interpretation
of a Commission regulation. As to such issues the Commission
may take the action under this section.
- b. The Petition and Affidavits, to the extent they qualify
as acceptable evidence within the meaning of Section 2.743 of
Part 2 of these regulations shall be received into evidence and
shall constitute the record of the proceeding on the temporary
operating license as of this time. Any evidence so received
shall be subject to a motion to strike and/or to cross-examination
unless as to that evidence and the issue to which it relates the
board rules that no further presentation shall be allowed.
- c. Based solely upon the data received in evidence pur
suant to paragraph b. of this Section the board shall determine
as to each issue on which the Affiant or the Petitioner seeks the
opportunity for further 1) dis.covery, 2) cross-examination,
- 3) time or 4) in any other way indicate that it is not prepared
to submit that issue to the board for resolution based upon the
Petition, the Affidavit~ and the briefs, 11
whether further presentation and/or action shall be allowed by
any party and shall specify what further presentation and/or
action will be allowed and the time within which it must occur.
- d. In making the determinations under paragraph c. of this
Section the board shall be guided by the general principle that
an issue shall not be deemed to be closed unless the board con
cludes that as to that issue there is no genuine issue of fact
and that no further action or presentation would be relevant.
The standard used by a Court in granting a summary judgment should
be applied in deciding any issue at this stage. In addition the
following principles should be utilized:
- 1) the parties have a right to thorough; relevant and
non-dilatory discovery and cross-examination which
can.only be foreclosed if it is clear that further
discovery and cross-examination would not serve any
use.ful purpose.
- 2) whether the data available to the board on the re
cord develops the salient facts of the dispute to
a sufficient depth and detail that the board is en
abled to perceive, define and resolve the issues
raised by the Petition and Affidavits.
- e. Whenever the board is in doubt as to whether further
presentation or action on an issue is warranted it shall balance and weight the following factors among others that it deems 12
relevant_:
- 1) the additional time needed to permit the further
presentation or action
- 2) the significance of the issue on which a further
presentation or action is sought to the ultimate
issues in the proceeding
- 3) the period within which the Applicant must have
a decision on the petition if it is to be able to
utilized the plant to meet the electric power shortage
(assuming that the decision is favorable)
- 4) the extent to which the parties have acted in good
faith and with due diligence
- 5) whether the party seeking a further presentation or
action has already had a reasonable opportunity to
make the further presentation or to take the further
action
- f. The board shall issue an order within ten days after the
affidavits of other parties were filed which shall set forth in
full the basis for the *board's decision on the factors covered
by this section and shall specifically state:
- 1) the issues if any upon which no further presentation
or action will be permitted and the board's resolution
- 2) the issues if any upon which further presentation or
action will be permitted, which party(ies) will be
allowed to make a further presentation or action, 13
the further presentation or action authorized and
the time in which it shall be completed
- 3) if the board concludes that an evidentiary or other
session of the hearing is reqciired it shall specify
a) the time when such hearing shall commence
and.end
b) the time when a pre-hearing conference shall
be held with respect to the hearing
c) the specific issues which will be explored
at the hearing and which parties will be
permitted to make presentation or take action
with respect to those issues, the specific
presentation or action authorized and condi
tions if any upon the specific presentation
or action.
- g. Any further presentation or action authorized shall be
governed to the extent relevant, by the provisions-of Section
2.1002, 2.1003, 2.1004 and 2.1005.
- h. Within two days after receipt of the board's order, any
party may file exceptions with the board with respect to the order
and the board shall rule upon the exceptions within two days(of.
the receipt of the exceptions of all parties.
Secti_cm 2.1006 - ;Flexibility In Implementation
- a. The regulations prescribed in this subpart are adopted to 14
provide for the briefest possible hearing and quickest possible
decision consistent with the requirements of the Administrative
Procedure Act. The strict adherence to all of the time limits
and the absolute and unalterable decisions on when further ex
ploration of certain issues is foreclosed will have to be applied
without exc~ption in some cases.
However, there will be cases where more time is.available for
the decislon without endangering the ability of the board to reach
a decision in sufficient time to permit the plant (if operation is
authorized) to meet the power shortage. In these cases the board
should consider itself free to modify the time requirements set
(except those prescribed by statute) or its own orders where such
modification may serve the ends of justice. Where additional time
does not exist for the decision the board would modify the time
required or any board order only where there was a clear showing
that such modification was necessary to serve the ends of justice.
Modifications contemplated by this section would include:
- a. Opportunity for the Applicant to supplement or amend
the data submitted with its original Petition other
than to respond to objections raised by the parties.
- b. Opportunity to the other parties to supplement or
amend. the data submitted by them in their original
- c. Extensions of time other than the time prescribed
by the Commission for the filing of affidavits by
parties other than the Petitioner.
15
- b. Factors warranting a modification under this section
should generally not include:
- a. Other commitments (including other hearings) of the
parties or the board - the temporary operating li
cense is expected to receive first priority. If
there is an apparently irreconcilable conflict in
schedule between hearing dates for two temporary
operating license applications which involve some
or all of the same people the boards involved will
immediately certify the schedule problem to the
Commission which will set the schedule for the-hear
ings within 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />.
- b. Any personal* problems of the people involved in the
hearing except illness, or death in the family.
Section 2.1007 - Role Of The Staff
- a. The staff's primary responsibility shall be to review
the Petition to determine if the substantive and procedural re
quirements for issuance.of a temporary operating license have
been met and to insure that all data relevant to whether the
license should be issued or not is fully disclosed at the earliest
time.
- b. Within 10 days after filing of the Petition or 5 days
before the affidavits of other parties are due, whichever is longer,
the Staff shall deliver to all parties and the Board a statement 16
of the Staff position with respect to the Petition. This state
ment shall include a thorough discussion of the basis for the Staff position on the following issues
- 1. Any radiological safety issues on which the Staff
I position differs from its position in the Staff Safety
Evaluation with appropriate reference to the portions
of the Safety Evaluation which are relevant for this
license application.
- 2. Any environmental issues on which the Staff position
differs from its position in the Draft or Final (which
ever is appropriate) Environmental Impact Statement
with appropriate references to the portions of that
Statement which are relevant here.
- 3. If no Final Environmental Impact Statement has been
prepared the Staff will submit a statement consistent
with the requirements of Paragraph D.2 of Appendix-D
of 10 CFR Part 50.
- 4. The issues included in Section 192b of the Atomic Energy
Act of 1954 as amended.
- c. The Staff statement shall follow the requirements con
tained in Section 2.1003 of this Subpart with respect to speci
ficity.
- d. The Staff shall include a statement of those issues rai_se.d by the Petition on which.it believes further factual data
is required and shall specify the data and the recommended pro-*
cedure for obtaining that data.
17
- e. The Staff shall deliver to all federal and state agencies
which have relevant environmental expertise a copy of its state
ment on the same day it is delivered to other parties. On that
day the Staff shall have published in the Federal Register and
shall issue a notice to the Press within 50 miles of the plant
site of the filing of such statement and its immediate availi
bility at a place near the site and at the Commission's offices
in Washington, D. C.
- f. All parties to the proceeding, all federal and state
agencies and all members of the general public shall have until
the date on which the affidavits of other parties are filed to
submit comments on the Staff statement. The Commission or the
board as appropriate may grant an extension of time for the
filing of these comments so long as the. time allowed will not
delay the final decision of the boird on the Petition. In any
event the comments must be received at least 10 days before the first
hearing is scheduled.
- g. Th~ee days after the date set for the receipt of the
views of all federal and state agencies, the parties and the
public, th.e Staff shall submit a final statement* incorporating
as pertinent these views.
Section 2~1008 - Hearing
- a. There shall be a hearing on all Petitions filed pursuant
to this subpart.
18
bo The matters to be covered by and the conduct of the
hearing shall be determined by the Order of the board issued
under Section 2.1005(f) and any subsequent pre-hearing Order.
- c. The* hearing shall be noticed in the Federal Register
at least 10 days before the scheduled date for the hearing. As
a matter of course the Commission will issue a Federal Register
notice calling for a hearing to be held 10 days after the date on
which the affidavits of parties are ~equired to be filed pursuant
to Section 2.1001. On that day a hearing will be held to receive
into evidence the Petition and affidavits of the parties and the
Staff Statement and the board will issue its order under Section
2.1005(f). Notwithstanding the Commission's notice of hearing
the board shall determine in its order whether any further hearing
shall be held and shall set such hearing for no sooner than three
days from the date of its order. Notice of the board order and
the hearing, if any, shall appear in the Federal Register for the
date of the issuance of the order and shall be released to the
press within 50 miles of plant _site on the same day.
Section 2.1009 - Hearing Board
- a. The hearing board which is considering the full-term,
full-power operating license shall be the hearing board for the
consideration of the temporary operating license.
- b. Upon the filing of a Petition under this subpart all
proceedings on the full-term, full-power license shall be sus
pended and all due dates for various actions by the parties shall 19
automatically be extended for the n.umber of days between the
Petition and the final decision on the Petition.
- c. The hearing board's role with respect to the temporary
operating license shall be the same as its role on the full-power
operating license. To the extent the board desires further in
formation from any of the parties by way of product1on of documents
or cross-examination it shall notify the party a reasonable period
of time in advance of the date on which it wishes this information
with sufficient specificity to permit the party to fully comply
with the request. The board shall make such requests within the
context of the time limits set for other parties and shall, to
the fullest extent possible, comply with the time limits and
specification requirements set for the other parties with respect
to requesting data~ identifying issues, and seeking further dis
covery and cross-examination.
Section 2.1010 - Final Decision
- a. Five days after the board issues its initi~l decision
the decision shall become final and if no appeal is filed under
sub-paragraph b of this Section the final decision shall be a
final order of the Commission.
- b. Within five days after the board issues its initial de
cision any aggrieved party may file an appeal with the Commission
and deliver a copy of the appeal to all parties. The Appeal shall
be accompanied by a detailed listing of the alleged errors with
record references and a brief.* Other parties may respond to the 20
appeal within three days of its receipt. The Commission shall
act on the appeal within five days after the time for submittals by the parties.
- c. An aggrieved party may seek a stay of the decision of
the board by filing a request for a stay with its appeal. The
request for a stay shall not be granted unless it establishes
that within the.time allow~d for consideration of the appeal by
the Commission there will be an irreversible, significant, ad
verse affect on the environment or on the health and safety of
the public. The Commission shall act upon the request for a
stay in a timely manner and so as to avoid the issue raised by
the stay being mooted.
Section 2.1011 - General Principles
a; It is the intent of this subpart that the Applicant
will file one Petition for a temporary operating license seeking
the power levels and duration of the license which it deems es
sential. Multiple requests for operating licenses at 1%, 20%,
etc. will not be permitted. If the level of power allegedly
needed by the Appli~ant is affected by events which occur subse
quent to the filing of a Petition then the Applicant may amend
its Petition or, if a decision on the Petition has already been
reached, may file a new Petition. In either event the rights of
other parties with respect to the amended Petition or the new
Petition shall be governed by this subpart as if an original Petition had been filed.
21
- b. Except as otherwise provided by this subpart the other
provisions of 10 CFR Part 2 dealing with the conduct of contested licensing shall apply to proceedings under this subpart so far as
applicable. The board shall interpret those provisions in light
of the general policy of this subpart.
- c. The Commission is aware that expedited procedures out
lined here will impose a substantial burden on all of the parties
to a proceeding. The need for a prompt decision when emergency
situations arise warrants these procedures. These procedures
will assure a fair hearing and a prompt. decision if the pabties
will abide by them in good faith. The Applicant has a heavy re
sponsibility to present a Petition and supporting affidavits
which are so thorough that further requests for data will be un
necessary. This will require the disclosure of substantial under
lying data and it will not be sufficient for the Applicant to
present unsupported opinions, even of experts.
The other parties have an equally-heavy burden. They must
establish* the issues which are relevant to them at an early date
and must concentrate on developing specific contentions with re
ference to those issuss. Equally important is the need to focus
on the factual contention in such a way that the.need for futher
discovery or cross~examination, if any is apparent. The use of
broad unsupported attacks or attempts to relitigate issues already foreclosed in the main hearing will not be permitted.
22
- d. Any party to a proceeding under this subpart shall be.
permitted to challenge the validity of any regulation applied
in this proceeding. The form of that challenge shall be in
conformity with the provisions of-the proposed amendments to
10 CFR Part 2 as published in the Federal Register on May 9,
1972 with the following modifications:
- 1) In the initial presentation by a party challenging
a regulation there shall be included the facts upon
which it relies in asserting that the basis for the
challenge to the regulation is relevant to the power
level and duration requested in the Petition.
- 2) The board will initially determine whether on the
basis of the c~allenge there is a substantial question
as to the validity of the regulation as applied to
the specific request for operation.
- 3) The board shall receive whatever evidence is neces~
sary pursuant to the general procedures of this sub
part to determine whether the Applicant meets the
challenged regulation.
- 4) If the board shall determine that there is a sub
stantial question of the validity of the regulation
as applied it shall notify the Commission immediately and the Commission shall decide within 24 hOurs of
such notice whether to request certification of the
validity of the regulation*at once or whether to 23
require the board to issue its initial decision
based upon the assumed validity of the challenged regulation and to consider the challenge to the
regulation on appeal from the initial decision.
- 5) If the Commission elects to decide the issue of
the challenged regulatiori after issuan~e.of an
initial decision then the provisions of Section
2.1010a shall not apply~ The decision shall not
be final until the Commission has issued its order
ruling on the challenge to the regulation.