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| {{#Wiki_filter:ADAMS Template: SECY-067 DOCUMENT DATE: 07/03/1986 TITLE: PR-002 - 51FR24365 - RULES OF PRACTICE FOR DOMESTIC LICENSINGPROCEEDINGS - PROCEDURAL CHANGES IN THE HEARING PROCESS CASE | | {{#Wiki_filter:}} |
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| ==REFERENCE:==
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| PR-002 51 FR24365 KEYWORD: RULEMAKING COMMENTS Document Sensitivity: Non-sensitive - SUNSI Review Complete
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| _)
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| STATUS OF RULEMAKING PROPOSED RULE: PR-002 RULE NAME: RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDIN GS - PROCEDURAL CHANGES IN THE HEARING PROCESS PROPOSED RULE FED REG CITE: 51FR24365 PROPOSED RULE PUBLICATION DATE: 07/03/86 NUMBER OF COMMENTS: 154 ORIGINAL DATE FOR COMMENTS: 09/02/86 EXTENSION DATE: 10/17/86 FINAL RULE FED. REG. CITE: 54FR33168 FINAL RULE PUBLICATION DATE: 08/11/89 NOTES ON COMMISSION APPROVED FINAL RULE AMENDMENTS BY A 5-0 VOTE (SRM-M8906 TATUS 28).
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| OF RULE FILE LOCATED ON Pl.
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| TO FIND THE STAFF CONTACT OR VIEW THE RULEMAKING HISTORY PRESS PAGE DOWN KEY HISTORY OF THE RULE PART AFFECTED: PR-002 RULE TITLE: RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDIN GS - PROCEDURAL CHANGES IN THE HEARING PROCESS PROPOSED RULE PROPOSED RULE DATE PROPOSED RULE SECY PAPER: 86-040B SRM DATE: 05/27/86 SIGNED BY SECRETARY: 06/30/86 FINAL RULE FINAL RULE DATE FINAL RULE SECY PAPER: 89-133 SRM DATE: 07/06/89 SIGNED BY SECRETARY: 08/02/89 STAFF CONTACTS ON THE RULE CONTACTl: LINDA S. GILBERT MAIL STOP: 9604MNBB PHONE: 492-7678 CONTACT2: TRIP ROTHSCHILD MAIL STOP: H-1035 PHONE: 634-1465
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| DOCKET NO. PR-002 (51FR24365)
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| In the Matter of RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDIN GS - PROCEDURAL CHANGES IN THE HEARING PROCESS DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT
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| - 07/01/86 06/30/86 FEDERAL REGISTER NOTICE - PROPOSED RULE 07/31/86 07/09/86 COMMENT OF COMMONWEALTH EDISON COMPANY (DENNIS FARRAR) ( 1) 08/07/86 08/05/86 LTR NUCLEAR INFORMATION AND RESOURCE SERVICE (TRAPASSO) REQUESTING EXTENSION OF COMMENT PERIOD 08/07/86 08/03/86 COMMENT OF ECOLOGY/ALERT (E. NEMETHY) ( 2) 08/19/86 08/15/86 COMMENT OF CONSERVATION COUNCIL OF NORTH CAROLINA (JOHN RUNKLE) ( 3) 08/21/86 08/15/86 COMMENT OF DALE SALTMAN ( 4) 08/21/86 08/14/86 COMMENT OF (PETER R. MITCHELL) ( 5) 08/25/86 08/21/86 COMMENT OF MARY ABBOTT-MILLS ( 6) 08/25/86 08/21/86 COMMENT OF CAROLINA PEACE RESOURCE CENTER (JOHN CARROLL) ( 7) 08/25/86 08/20/86 COMMENT OF (BARBARA A. HILDT) ( 8) 08/25/86 08/20/86 COMMENT OF THREE MILE ISLAND ALERT, INC.
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| (ERIC EPSTEIN) ( 9) 08/28/86 08/27/86 FR NOTICE - EXTENSION OF COMMENT PERIOD 08/28/86 08/25/86 COMMENT OF COMMON SENSE (JOHN OAKES) ( 10) 08/28/86 08/26/86 COMMENT OF LINDA SCHELLING ( 11) 08/29/86 08/26/86 COMMENT OF LEWIS C. GREEN ( 12) 08/29/86 08/27/86 COMMENT OF WISCONSIN'S ENVIRONMENTAL DECADE (KARRY RITTER) ( 13)
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| DOCKET NO. PR-002 (51FR24365)
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| DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT 08/29/86 08/27/86 COMMENT OF MONROE MICHIGAN BOARD OF COMMISSIONERS (RICHARD E. PETTICREW) ( 14) 08/29/86 08/26/86 COMMENT OF JULIE SWILER ( 15) 08/29/86 08/25/86 COMMENT OF INGRID M. SANBORN ( 16) 08/29/86 08/25/86 COMMENT OF MARSHA REILLY-SULLIVAN ( 17) 08/29/86 08/24/86 COMMENT OF MICHAEL SHOOP ( 18)
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| - 09/02/86 08/28/86 JOHN OAKES ON BEHALF OF COMMON SENSE REQUESTS AN EXTENSION OF THE COMMENT PERIOD 09/02/86 08/30/86 COMMENT OF NECNP, INC. (CORNELIA W. !SELIM) ( 19) 09/02/86 08/29/86 COMMENT OF BALTIMORE GAS AND ELECTRIC (JAMES P. BENNETT) ( 20) 09/02/86 08/28/86 COMMENT OF STONE & WEBSTER ENGINEERING CORPORATION (R.B. BRADBURY) ( 21) 09/02/86 08/27/86 COMMENT OF COUNCIL OF THE CITY OF NEW YORK (RUTH W. MESSINGER) ( 22) 09/02/86 08/28/86 COMMENT OF WILLIAM & LORRAINE GOLD ( 23)
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| - 09/02/86 08/29/86 COMMENT OF PETER R. HAACK ( 24) 09/02/86 08/29/86 COMMENT OF DR. ELLEN BECKER ( 25) 09/02/86 08/29/86 COMMENT OF TOWN OF HAMPTON (PAUL MCEACHERN) ( 26) 09/02/86 08/27/86 COMMENT OF JANET P. PRIMO ( 27) 09/02/86 08/28/86 COMMENT OF SHEILA G. KING ( 28) 09/02/86 08/28/86 COMMENT OF MINNESOTA OFFICE OF THE ATTORNEY GENERAL (HUBERT H. HUMPHREY,111) ( 29) 09/02/86 09/02/86 COMMENT OF NUBARG (NICHOLAS S. REYNOLDS) ( 30) 09/03/86 08/30/86 LETTER FROM PETER R. HAACK CORRECTING ERRORS IN EARLIER COMMENT LETTER OF 08/29/86 (COMMENT #24) 09/03/86 08/29/86 COMMENT OF SIERRA CLUB - SANTA LUCIA CHAPTER (FRANK BUSH) ( 31) 09/03/86 08/27/86 COMMENT OF ECOLOGY TASK FORCE (ALBERT G. COHEN) ( 32)
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| DOCKET NO. PR-002 (51FR24365)
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| DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT 09/03/86 08/26/86 COMMENT OF CITIZENS WITHIN THE TEN MILE RADIUS (THOMAS F. MOUGHAN) ( 33) 09/03/86 08/27/86 COMMENT OF SHEILA B. WYNNE ( 34) 09/03/86 08/29/86 COMMENT OF WES ARMSTRONG ( 35) 09/03/86 08/29/86 COMMENT OF SUSAN DOUGHERTY ( 36) 09/03/86 08/28/86 COMMENT OF L.C. COONSE ( 37)
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| - 09/03/86 08/30/86 COMMENT OF H.W. IBSER ( 38) 09/03/86 08/26/86 COMMENT OF NATALEA G. BROWN ( 39) 09/03/86 08/27/86 COMMENT OF BRUCE CAMPBELL ( 40) 09/03/86 08/28/86 COMMENT OF RESIDENTS AGAINST POLLUTED ENVIRONMENT (DAPHNE MITCHELL) ( 41) 09/03/86 08/30/86 COMMENT OF CAROLINA ENVIRONMENTAL STUDY GROUP (JESSEL. RILEY) ( 42) 09/03/86 08/29/86 COMMENT OF MARY BYE ( 43) 09/03/86 08/29/86 COMMENT OF JAMES L. PICKERING ( 44)
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| - 09/03/86 08/28/86 COMMENT OF RICHARD D. WILSON ( 45) 09/03/86 08/29/86 COMMENT OF DOROTHY K. CINQUEMANI ( 46) 09/03/86 08/29/86 COMMENT OF OHIO CITIZENS FOR RESPONSIBLE ENERGY (SUSAN L. HIATT) ( 47) 09/03/86 09/02/86 COMMENT OF PSEGC, NIAGARA MOHAWK, GULF STATES (TROY B. CONNER, JR.) ( 48) 09/03/86 08/29/86 COMMENT OF SEACOAST ANTI-POLLUTION LEAGUE (JANE DOUGHTY) ( 49) 09/03/86 08/23/86 COMMENT OF MARVIN I. LEWIS ( 50) 09/03/86 08/30/86 COMMENT OF JOHN E. LODER ( 51) 09/03/86 08/29/86 COMMENT OF SAN LUIS OBISPO MOTHERS FOR PEACE (NANCY CULVER) ( 52) 09/03/86 08/30/86 COMMENT OF WELLS EDDLEMAN ( 53)
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| DOCKET NO. PR-002 (51FR24365)
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| DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT 09/03/86 08/30/86 COMMENT OF ROBERT L. ANTHONY ( 54) 09/04/86 08/30/86 COMMENT OF ILLINOIS SAFE ENERGY ALLIANCE (CATHERINE QUIGG) ( 55) 09/04/86 08/29/86 COMMENT OF HERB &KAREN MOYER ( 56) 09/05/86 08/29/86 COMMENT OF STATE OF NEVADA (~LACHY R. MURPHY) ( 57) 09/05/86 08/31/86 COMMENT OF GE STOCKHOLDERS' ALLIANCE AGAINST N.P.
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| (PATRICIA BIRNIE) ( 58) 09/05/86 09/02/86 COMMENT OF WESTINGHOUSE ELECTRIC CORPORATION (E.P. RAHE, JR.) ( 59) 09/05/86 08/28/86 COMMENT OF (JAMES E. BEARD) ( 60) 09/05/86 09/03/86 COMMENT OF YANKEE ATOMIC ELECTRIC COMPANY (D.W. EDWARDS) ( 61) 09/07/86 09/06/86 COMMENT OF ITEM WAS MISCODED ( 68) 09/08/86 09/04/86 LTR WESTINGHOUSE ELECTRIC CORPORATION (RAHE)
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| ENCLOSING SUBSTITUTE PAGE 7 TO COMMENTS SUBMITTED 09/02/86 (SEE COMMENT #59) 09/08/86 08/19/86 COMMENT OF ILLINOIS SAFE ENERGY ALLIANCE
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| - (KURT D. TORRES) ( 62) 09/09/86 09/02/86 COMMENT OF TOM &NANCY NORWOOD ( 63) 09/09/86 09/06/86 COMMENT OF ROSALIE RANSOM ( 64) 09/09/86 09/06/86 COMMENT OF MARTHA I. MORSE ( 65) 09/09/86 09/05/86 COMMENT OF PAUL DAUBITZ ( 66) 09/11/86 09/08/86 COMMENT OF KATHLEEN KRZCUIK ( 67) 09/11/86 09/02/86 COMMENT OF GEORGIA POWER COMPANY (L.T. GUCWA) ( 69) 09/12/86 09/10/86 COMMENT OF MARTHA WILSON ( 70) 09/15/86 09/10/86 LTR SINNISSIPPI ALLIANCE FOR THE ENVIRONMENT (CAMPBELL) REQUESTING EXTENSION OF COMMENT PERIOD 09/15/86 09/08/86 COMMENT OF BEVERLY BROWN ( 71) 09/15/86 09/09/86 COMMENT OF PAMELA RICHARDSON ( 72)
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| DOCKET NO. PR-002 (51FR24365)
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| DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT 09/15/86 09/12/86 COMMENT OF JUDITH B. SHAW ( 73) 09/15/86 09/12/86 COMMENT OF JUDITH B. SHAW ( 73) 09/15/86 09/09/86 COMMENT OF DAVID A. BISHOP ( 74) 09/19/86 09/16/86 COMMENT OF KRIS MOSS ( 75) 09/19/86 09/17/86 COMMENT OF ROSEMARY S. LOVEDAY ( 76) 1 09/19/86 09/17/86 COMMENT OF MAE ATKINSON ( 77) 09/19/86 09/16/86 COMMENT OF CAROL B. FEINGOLD ( 78) 09/19/86 09/16/86 COMMENT OF R.A. AMFRACE ( 79) 09/19/86 09/14/86 COMMENT OF ELIZABETH PETTY ( 80) 09/19/86 09/13/86 COMMENT OF JOHN M. CHAPLICK ( 81) 09/22/86 09/15/86 COMMENT OF GPU NUCLEAR (J.R. THORPE) ( 82) 09/22/86 09/19/86 COMMENT OF DIANE CHATIGNY ( 83) 09/22/86 09/18/86 COMMENT OF SUSAN MORRISON ( 84) 09/23/86 09/19/86 COMMENT OF SOPHIE MOUGHAN ( 85) 09/23/86 09/18/86 COMMENT OF MRS. EDWARD MORRISON ( 86) 09/23/86 09/18/86 COMMENT OF CHRISTOPHER KEETS ( 87) 09/24/86 09/19/86 COMMENT OF JEANETTE R. CHATIGNY ( 88) 09/24/86 09/20/86 COMMENT OF EMMA &JACK CRAIB ( 89) 09/25/86 09/20/86 COMMENT OF BARBARA MISPILKIN ( 90) 09/25/86 09/21/86 COMMENT OF THOMAS PESUE ( 91) 09/25/86 09/21/86 COMMENT OF LORETTA L. GALLAGHER ( 92) 09/25/86 09/18/86 COMMENT OF BARBARA OSWALD ( 93) 09/25/86 09/21/86 COMMENT OF SARAH BODLPE ( 94) 09/26/86 09/22/86 COMMENT OF M. ELIZABETH & PIERRE N. BARATELLI ( 95) 09/29/86 09/25/86 COMMENT OF JANET P. PRIMO ( 96)
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| DOCKET NO. PR-002 (51FR24365)
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| DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT 09/29/86 09/25/86 COMMENT OF LESLIE A. LIPKIND ( 97) 09/29/86 09/25/86 COMMENT OF A.N. EDISELLI ( 98) 09/29/86 09/24/86 COMMENT OF STEVE A. HOLT ( 99) 09/29/86 09/29/86 COf,V,1ENT OF J.G. BATCHELDER ( 100) 09/29/86 09/25/86 COMMENT OF ANNE V. SHEEHAN ( 101) 09/29/86 09/26/86 C0""1ENT OF *BARBARA J. HAUER- ( 102) 09/29/86 09/25/86 COMMENT OF GEORGE A. JOHNSON ( 103) 09/29/86 09/23/86 COMMENT OF HILLARIE L. GAYNOR ( 104) 09/29/86 09/23/86 COMMENT OF ALICE PRINCE ( 105) 09/29/86 09/23/86 COMMENT OF SINNISSIPPI ALLIANCE FOR THE ENVIRONMENT (STANLEY E. CAMPBELL) ( 106) 10/02/86 09/19/86 LTR OF CONGRESSMAN JOSEPH M. MCDADE TO CHILK TMTG LTR FROM J. OAKES OF COMMON SENSE(SEE COMMENT #10) 10/02/86 09/27/86 COMMENT OF HILJA S. BURTON ( 107) 10/02/86 09/29/86 COMMENT OF SAIMA I. GRACE ( 108) 10/02/86 09/29/86 COMMENT OF MARYE. REILLY ( 109) 10/02/86 09/29/86 COMMENT OF DON & EILEEN BURLINGEME ( 110) 10/02/86 09/29/86 COMMENT OF MARTHA R. DONOVAN ( 111) 10/02/86 09/29/86 COMMENT OF MR. &MRS. J.L. KALFEL ( 112) 10/02/86 09/30/86 COMMENT OF PATRICIA YOUNGER ( 113) 10/03/86 10/01/86 COMMENT OF LYNN DREYFUSS MARTIN ( 114) 10/03/86 09/29/86 COMMENT OF LUANN MCKENNEY ( 115) 10/03/86 10/02/86 COMMENT OF ENVIRONMENTAL DEFENSE FUND (MELINDA KASSEN) ( 116) 10/03/86 09/30/86 COMMENT OF TOBY R. GORDON ( 117) 10/06/86 09/29/86 LTR GC (PARLER) TO CONGRESSMAN W.L. CLAY ACKNOW-LEDGING LTR RECEIVED RE COMMENTS FM CONSTITUENT L.C. GREEN (SEE COMMENT #12)
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| DOCKET NO. PR-002 (51FR24365)
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| DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT 10/06/86 09/30/86 COMMENT OF PATRICIA A.L. HOYT ( 118) 10/06/86 10/01/86 COMMENT OF HOLLY BEARDSLEY ( 119) 10/07/86 09/29/86 LTR GC (PARLER) TO CONGRESSMAN R.C. SMITH ACKNOW-LEDGING LTR RECEIVED FM CONSTITUENT J.E. LODER (SEE COMMENT #51) 10/07/86 10/06/86 NOTE TO RECEIPIENTS NOTING THAT COMMENT #68 WAS MISCODED AND NUMBER WILL NOT BE USED AGAIN
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| - 10/07/86 09/30/86 COMMENT OF JEANNE SCHROTH { 120) 10/08/86 10/06/86 COMMENT OF RUTH &WILLIAM BAKER ( 121) 10/08/86 10/06/86 COMMENT OF MICHAEL PRENDERGAST ( 122) 10/09/86 10/07/86 COMMENT OF WASHINGTON NUCLEAR WASTE BOARD (WARREN A. BISHOP) ( 123) 10/10/86 10/08/86 COMMENT OF BASIL W. REILLY ( 124) 10/10/86 10/08/86 COMMENT OF SCOTT T. BILLINGTON ( 125) 10/15/86 10/08/86 COMMENT OF CHARLES J. SWEENEY ( 126) 10/15/86 10/08/86 COMMENT OF ELIZABETH A. SWEENEY ( 127) 10/15/86 10/10/86 COMMENT OF NANCY S. AXELSON { 128) 10/16/86 10/12/86 COMMENT OF NUCLEAR ENERGY INFORMATION SERVICE ( 129) 10/16/86 10/13/86 COMMENT OF RICHARD A. MANSO ( 130) 10/17/86 10/16/86 COMMENT OF MASSACHUSETTS JOINT COMMITTEE ON ENERGY (N. COSTELLO/L.R. ALEXANDER) ( 131) 10/17/86 10/16/86 COMMENT OF CITIZENS ASSOCIATION FOR SOUND ENERGY (JUANITA ELLIS) ( 132) 10/17/86 10/16/86 COMMENT OF NORTH CAROLINA DEPARTMENT OF JUSTICE (LEMUEL W. HINTON) ( 133) 10/17/86 10/16/86 COMMENT OF OREGON DEPARTMENT OF JUSTICE (JAMES E. MOUNTAIN, JR.) ( 134) 10/17/86 10/17/86 COMMENT OF EDISON ELECTRIC INSTITUTE (JOHN J. KEARNEY) ( 135)
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| DOCKET NO. PR-002 (51FR24365)
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| DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT 10/17/86 10/17/86 COMMENT OF KERR-MCGEE CORPORATION (PETER J. NICKLES) ( 136) 10/17/86 10/18/86 COMMENT OF NUCLEAR INFORMATION AND RESOURCE SERVICE (BEATRICE TRAPASSO) ( 137) 10/20/86 10/16/86 COMMENT OF MASSACHUsms DEPT. OF ATTORNEY GENERAL (DONALDS. BRONSTEIN) ( 138) 10/20/86 10/17/86 COMMENT OF CONFEDERATED TRIBES/YAKIMA INDIAN NATION (DEAN R. TOUSLEY) ( 139)
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| - 10/20/86 10/16/86 COMMENT OF MAINE DEPARTMENT OF THE ATTORNEY GENERAL (JAMES E. TIERNEY) ( 140) 10/20/86 10/17/86 COMMENT OF CLEVELAND ELECTRIC ILLUMINATING COMPANY (JAYE. SILBERG) ( 141) 10/20/86 10/18/86 COMMENT OF RICHARD N. YOKE AND ELEVEN OTHERS ( 142) 10/21/86 10/17/86 COMMENT OF CONNECTICUT OFFICE OF ATTORNEY GENERAL (JOSEPH I. LIEBERMAN) ( 143)'
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| 10/21/86 10/17/86 COMMENT OF UNION OF CONCERNED SCIENTISTS (ELLYN R. WEISS) ( 144) 10/21/86 10/17/86 COMMENT OF ALABAMA OFFICE OF THE ATTORNEY GENERAL (ROBERT L. RASH) ( 145) 10/21/86 10/17/86 COMMENT OF LEBOEUF, LAMB,LEIBY &MACRAE &UTILITIES (HARRY H, VOIGT) ( 146) 10/23/86 10/17/86 COMMENT OF ATOMIC INDUSTRIAL FORUM, INC.
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| (BARTON Z. COWAN) ( 147) 10/24/86 10/23/86 COMMENT OF STATE OF TEXAS (RENEA HICKS) ( 148) 10/31/86 10/29/86 LTR GC (PARLER) TOK. DEKUIPER RESPONDING TO SENATOR LEVIN'S LTR OF 10/14/86 TO C. KAMMERER RE COMMENTS BY MONROE COUNTY BD OF COMMISSIONERS 11/05/86 11/02/86 COMMENT OF NATALEA G. BROWN ( 149) 11/12/86 10/22/86 COMMENT OF JUDITH POLICH ( 150) 11/17/86 11/13/86 COMMENT OF RUTHANNE STAMNE ( 151) 11/17/86 11/11/86 COMMENT OF FRANKE. KRAMER ( 152) 11/19/86 11/16/86 COMMENT OF ESTHER M. MANN ( 153)
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| DOCKET NO. PR-002 (51FR24365)
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| DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT 04/06/87 04/02/87 COMMENT OF EILEEN PEYTON ( 154)
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| 08/03/89 08/02/89 FEDERAL REGISTER NOTICE - FINAL RULE
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| DOCKET NUMBER PR _*.
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| P,ROPOSED RULE ~
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| ( (; ) ( {!_ 'J- lJ 3 6S) [7590-01 J 89 AUG -3 All :51 0
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| NUCL EAR REGULATORY COMMISSION 10 CFR Part 2 RIN: 3150 - AC22, 3150 - AA05 Rules of Practice for Domestic Licensing Proceedings--
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| Procedural Changes in the Hearing Process AGENCY: !~uclear Regulatory Commission.
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| ACTIO N: Final rule.
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| e St!M: .ARY: The Nuclear Regulatory Commission is amending its Rules of Practi ce to imp rove the htaring process with due regard for the rights of the parties.
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| The amendments require a person seeking to part i cipate as a party in an NRC proceeding to file a list of contentions with the presiding officer together with a brief explanation of the bases for each contention, a concise statement of the alleged facts or expert opinion that support the contention and which, at the time of the filing, the person intends to rely upon in proving the contention at the hearing, and references to the specific sources and documents of which the person is aware and upon which he or she intends to rely to establish such facts or expert opinions. The information submitted by f11 t/1 J)c ~ 1h t he (cduo..J t ~(j,sfer o,_
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| f -lJ-8~ tt.S s-vf K 33/t 8
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| .J.S. NUCV/\'; COMMISSION DOC"l(n 1 c SEO ION iARY ON Postmark D;i' tJ )J Copies R , *. '
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| Add' I Co, i, Re Special Dis* ribution inlu 'fc n "Jq h.J . . ~,;,
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| YC
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| '" 'ir/649 fo}J tr JI"\ .riwllje
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| a potential intervenor must be sufficient to show that a genuine dispute exists between it and the applicant or licensee on an issue of law or fact.
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| If the person fails to satisfy these requirements the presiding officer shall not admit the contention. Other amendments are made to reduce unnecessary discovery, to describe procedures by which a presiding officer may require parties to file a description of the purpose and nature of questions which they intend to ask witnesses during cross-examination, to expand the time during which motions to dispose of contentions summarily and without a hearing may be filed, and to limit an intervenor's appeals and filings of proposed findings of fact and conclusions of law to issues which that party actually placed in controversy or sought to place in controversy in the proceeding.
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| EFFECTIVE DATE: Insert date 30 days after date of publication in the Federal Register.
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| FOR FURTHER INFORMATION CONTACT: Stuart A. Treby, Assistant General Counsel Rulemaking and Fuel Cycle Division, Office of the General Counsel, U.S.
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| Nuclear Regulatory Commission, Washington, D.C. 20555; Telephone .(301) 492-1636.
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| SUPPLEMENTARY INFORMATION.
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| I. Background.
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| On July 3, 1986, after extensive study, evaluation and review and careful consideration of prior public coIT1TJents 1 l/ the Co1T111ission published a notice of proposed rulemaking stating that it was considering amending certain provisions of its rules of practice in order to improve the licensing process for nuclear power plants and inviting public comment (51 FR 24365, July 3 1 1986.) The proposed amendments, which were initially developed by the Regulatory Reform Task Force, addressed specific aspects of the hearings process: admission of contentions; discovery against NRC staff; use of cross-examination plans; timing of motions for summary disposition; and limitations on 1ntervenors' filings of proposed finGings of fact, conclusions of law, and appellate b.riefs. In addition to these proposals, the Corrmission also requested comments on a SEries of related proposals developed by former Commissioner Asselstine concerning the intervention process. The corrment p~riod expirea October 17 1 1986. More than 150 comments, including a few late-filed coIT1Tients, were received from electric utilities, electric utility ana nuclear power associations or their counsel, ut1li~ stockholders, counsel for NRC licensees, an architect-engineer, intervenors in NRC proceedings, public interest groups, states, local governments, Indian tribes and interested individuals. Copies of all comments received are available for public inspection, and copying for a fee, at the NRC Public Document Room at 2120 L Street, NW., lower level, Washington, DC.
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| 1/ A detailed account of the background of this rulemaking is. set out in the preamble of the proposed rule,~ 51 FR 24365-24366, July 3, 1986.
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| II. Su1T111ary of Co111T1ents.
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| A. General.
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| Although objections were raised to some of the specific proposals, the proposed rule received broad support from el~ctric utilities, their counsel e and various industry groups. According to these commenters, the proposed rule would streamline the hearing process and make it more efficient. States, local governments, public interest groups, intervenors and individuals generally opposed the proposals on the ground that they would curtail the public's role in the licensing process and meaningful public participation in licensing proceedings would be eliminated. Noting the need for and importance of unbiased factual information in reaching sound regulatory decisions and the effectiveness ot intervenors in identifying ar,d obtaining full consideration 9 of vital health and safety issues, these cormienters expressed the view that opportunities for full public participation in the licensing process should be expanded, not reduced. Some commenters questioned the need for the proposed changes. Others stated that the Co1T1T1ission s rules of practice should be 1
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| retained unchanged.
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| B. Comments on Specific Proposals, with Responses.
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| The sections which follow contain a description of each of the proposed amendments. a summary of the comments receivta and an NRC response.
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| : 1. Intervention (10 CFR 2.714) Admission of Contentions The proposed amendments to 10 CFR 2.714 would raise the threshold for the admission of contentions to require the proponent of the contention to supply information showing the existence of a genuine dispute with the applicant on an issue of law or tact. The required showing must include references to the e specific portions of the application which are disputed. The contention must also be supported by a concise statement of the alleged facts or expert opinion, together with specific sources and documents of which the petitioner is aware, which will be relied on to establish the facts or expert opinion.
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| Absent thi~ showing, the contention will not be admitted. Under the proposed amendments, admission of a contention may also be refused if it appears unlikely that the petitioner can prove a set of facts in support of the contention or it it i~ determined that the contention, even if proven, would be of no consequence in the proceeding because it would not entitle the pttitioner to relief. Finally, the proposed amendments would provide that a cont~ntion raising only an issue of law will not be admitted for resolution in an eviaentiary hearing but shall be decided on the basis of briefs and any oral argument that may be held.
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| Electric utilities, their counsel and industry groups, for the most part, supported this change, while environmental and citizen action groups and state and local government representatives opposed the proposed amendments raising the threshold for the admission of contentions.
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| Characterizing the proposed changes respecting the admission of contentions as one of the most significant aspects of the proposed rule, the commenters who favored adopting more stringent standards of admissibility stated that the Coll1llission 1 s existing procedures permitted too many insignificant, meritless, hypothetical and time-consuming contentions to be admitted and that the proposed amendments would have the salutary effect of requiring petitioners to know in advance of filir,g a petition to intervene what issues they intended to litigate and how they planned to conduct the litigation. In the opinion of some commenters, the proposed amendments, if vigorously enforced, could become an important tool in crystallizing disputes at an early stage in the proceecing, thereby significantly improving the efficiency and quality of the hearing process. The commenters noted that the proposed amendments should curtail the practice of using discovery procedures to develop contentions and that the proposed amendments would bring NRC practice more in line with Federa 1 practice under the Admi rii strative Procedure Act. The proposed amendments would also, in one respect, conform NRG practice more closely to that p~rmitted by the Federal Rules of Civil Procedure. On this point, one commenter noted the similarity between Rule 12(b)(6) of the Federal Rules of Civil Procedure and the provision in proposed§ 2.714(d)(2)(ii1) under which a presiding officer could refuse to admit a contention upon a determination that the contention, if proven, would be of no consequence in the proceeding because it would not entitle the petitioner to relief.
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| Some of the proponents of the proposed amendments expressed the view that the amendments should be further revised. Several commenters expressed the view
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| that the propo~ed amendments did not go far enough in that they failed to include more stringent requirements respecting standing. Several conunenters questioned the propriety of admitting contentions based on disputes on issues of policy. In the opinion of these convnenters, it would be inappropriate for licensing and appeal boards to decide policy issues. Policy and disagreements concerning policy should be addressed by the Commission itself. According to e these conmenters, to permit policy statements which have been formally adopted by the Convnission to be challenged in licensing and regulatory proceedings devoted to other matters would be inconsistent with current NRC practice (see 10 CFR 2.758) which precludes parties in any adjudicatory proceeding involving initial licensing, except dS provided in§ 2.758(b), (c) and (d), from challenging any Corrrn1ss1on rule or regulation. Instead, concerns respecting Corrmission policies should be raised at the time the Convnission is actively engaged in developing and formulating those policies in the forum provided by the Commission for that purpose.
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| In response, the Commission would note that the use of the terms "law, fact and policy 11 was riot meant to change in any manner the way Corrmission regulations or policy statements are dealt with in NRC proceedings. The terms were used merely to encompass the variety of issues, often mixed factual, legal or policy issues, which can be the subject of contentions in NRC proceedings. However, to avoid any ambiguity about the manner in which policy issues are to be dealt with before the NRC, the word "policy" has been deleted from the final version of §2.714.
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| Several corrmenters criticized the language used in paragraph (b)(2) of§ 2.714 to describe the threshold of admissibility on the ground that it was unnecessarily redundant because it included two separate standards of admissibility, i.e., (1) the existence of a genuine dispute with the applicant on a material issue of law, fact or policy, and (2) the information presented prompts reasonable minds to inquire further as to the validity of the contenti.on. Some colrlTlenters opposed, while other corrmenters favored, inclusion of the "reasonable minds" standard. One collll1(:nter noted that the genuine dispute standard is the same standard used to determine standing and that if this stanoard is applied as it has been in the past, adoption of the propos1::d amer1dments will have littlt:! practical effect. The Commission has concluded that describing the threshold for admissibility by two different phrases is unnecessary and could create confusion. Therefore the "prompts reasonable minds to inquire further" language has been deleted from the final rule.
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| Commenters opposing the proposed amendments objected on the grounds that the proposed amendments were unnecessary, contrary to due process, unduly burdensome, unfair and in violation of the provisions of section 189a of the Atomic Energy Act of 1954, as amended. According to these commenters, the proposed standard for the admission of contentions is so restrictive that it would be virtually impossible for per~ons seeking to participate in an NRC adjudicatory proceeding to succeed in having their contentions admitted with the result that significant safety issues might not be fully explored or carefully reviewed. Instead of sharpening the issues in dispute, the proposed
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| amendments would simply eliminate certain issues from further consideration with the result that the problems presented might never be satisfactorily resolved. This could be highly detrimental to the public health and safety.
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| Asserting that the proposed standard for admissibility of contentions is far more stringent than that applied by the Federal courts, the corrmenters argued e that, if promulgated, the standard would have the effect of requiring persons seeking to participate in an NRC proceeding to prepare and prove their complete evidentiary case before any determination is made on their right to be a party to the proceeding. Under the proposed procedures, several conrrnenters argued, petitioners would not only be required to produce the proof of their alleged facts in order to be admitted to the proof-gathering and fact-finding process; licensing boards would also be permitted to prejudge the petitioner's evidence before the petitioner was granted standing to participate in the proceeding. Several commenters took strong exception to the provision in§ 2.714(d)(2)(ii) which would permit presiding officers to bar an intervenor from participating in a proceeding on the basis of a preliminary determination that "it appears unlikely that petitioner can prove a set of facts 1n support of its contention.u In the opinion of some cormnenters, the requirement that petitioners must document and furnish evidence in support of their contentions before they are entitled to participate in an adjudicatory proceeding and take advantage of the mechanisms normally available to parties to such a proceeding to obtain relevant documents and information is patently unfair and constitutes a denial
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| of due process. In addition, they argue, contrary to the intent of the present regulatory scheme, one i111T1ediate effect of the proposed amendrr~nts would be to shift the burden of proof from the license applicant to the intervenor. The corrments also noted that under the Commission's regulations, license applicants are not required to furnish all the necessary documentation supporting the application at the time the application is first submitted.
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| These circumstances, coupled with the more stringent standard for the admission of contentions prescribed by the proposed amendments, would make it impossible for 1ntervenors to prepare and litigate a fully definitive case.
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| Some commenters also argue that to the extent that the proposed amendments would operate to bar intervenors from participating in NRC adjudicatory proceedings, they would contravene the provisions of section 189a of the Atomic Energy Act of 1954, as amended, which states, in pertinent part:
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| 11 In any proceeding under this Act, for the granting, suspending, revoking, or amending of any license or construction pennit, or application to transfer control, and in any proceeding for the issuance or modification of rules and regulations dealing with the activities of licensees, and in any proceeding for the payment of compensation, an award, or royalties under sections 153, 157, 186c., or 188, the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding, and shall admit 'any such person as a party to such proceeding. 11
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| The commenters also opposed the proposed amendments because, in their opinion, the amendments would, if adopted, create a hopeless state of confusion respecting the matters to be considered in determining whether a person should be entitled to participate in a proceeding and the matters to be considered in reaching a decision on the merits of the proceeding. In their view, the standards used in deciding an issue on the merits are not appropriate for deciding whether a particular person should be allowed to participate in a proceeding. The coITHTienters also took exception to the cases cited in the preamble of the proposed rule in support of this proposal.
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| Finally, some commenters objected to the proposed amendments on the grounds that they dre unr1ecessary. According to these co1T111enters, presiding officers have adequate authority under the Corrrnission s present rules of practice to 1
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| bar contentions which are frivolous and without merit. In general, when an effort has b~en made to apply the existing requirements in a disciplined manner, presiding otf,cers have exp~rienced little difficulty in determining whether a particular contention is meritorious and should be admitted as an issue in the proceea,ng. The commenters are firmly of the view that additional amendments establishing more stringent standards for the admission of contentions are unnecessary.
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| The Commission disagrees with the assertions that the proposed amendments are unduly burdensome and so restrictive that it will be virtually impossible for persons to hav~ safety contentions admitted to an NRC proceeding.
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| Under these new rules an intervenor will have to provide a concise statement of the alleged facts or expert opinion which support the contention and on which, at the time of filing, the intervenor intends to rely in proving the contention at hearing, together with references to the specific sources and documents of which th~ intervenor is aware and on which the intervenor intends to rely in establishing the validity of its contention. This requirement does
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| - not call upon the intervenor to make its case at this stage of the proceeding, but rather to indicate what facts or expert opinions, be it one fatt or opinion or many, of which it is aware at that point in time which provide the basis for its contention.
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| In addition to providing a statement of facts and sources, the new rule will also require intervenors to submit with their list of contentions sufficient information (which may include the known significant facts described above) to
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| .show that a genuine dispute exists between the petitioner and the applicant or the licensee on a mat~rial issue of law or fact. This will require the intervenor to read the pertinent portions of the license application, including the Safety Analysis Report and the Environmental Report, state the applicant*s position and the petitioner's opposing view. Where the intervenor believes the application and supporting material do not address a relevant matter, it wi 11 be suffi*ci ent for the intervenor to explain why the application is deficient.
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| The Commission does not agree that this rule contravenes section 189a of the Atomic Energy Act of 1954, as amended. A member of the public has no absolute
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| or unconditional right to intervene in a nuclear power plant licensing proceeding under the Atomic Energy Act. BPI v. Atomic Energy ColTITlission, 502 F.2d 424 (D.C. Cir. 1974). Section 189a of the Act which provides for intervention is subject to the Connnission's ru.lemaking power under section 161p and, thus, to reasonable procedural requirements designed to further the purposes of the Act. BPI v. Atomic Energy Corranission, supra, 502 F.2d at 427, 428; ~ also American Trucking Ass'ns, Inc. v. United States, 627 F.2d 1313, 1320-23 (D.C. Cir. 1980). Furthermore, the right to intervention under section 189a tor a member of the public is explicitly conditioned upon a "request. 11 The proposed amendments would, in effect, provide that a "proper request" by a member of the public shall include a statement of the facts supporting each contentior, together with references to the sources and documents on which the intervenor relie~ to establish those fact~. Finally, the Administrativ~ Procedure Act creates no independent right to intervene in nuclear licensing proceedings. See Easton Utilities Commission v. Atomic Energy Corrmission, 424 F.2d 847, 852 (D.C. Cir. 1970)(en bane); cf. National Coal Operators' Assn. v. Kleppe, 423 U.S. 388, 398-99, 46 L. Ed. 2d 580, 96 S. Ct. 809 (1976).
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| Nor does the Con~ission believe that this requirement represents that substantial a departure from exi~ting practice. Under the Commission's existing requirements, as explained by the Atomic Safety and Licensing Appeal Board, "[A]n intervention petitioner has an ironclad obligation to examine the publicly available documentary material pertaining to the facility in question with sufficient care to enable the petitioner to uncover any information that
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| could serve as the foundation for a specific contention. Neither Section 189a of the Atomic Energy Act nor Section 2.714 of the Rules of Practice permits the filing of a vague, unparticularized contention, followed by an endeavor to flesh it out through discovery against the applicant or Staff.u Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-687, 16 NRC 460, 468 (1982); vacated in part on other grounds, CLI-83-19, 17 NRC 1041 (1983).
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| See also Ohio v. NRC, 814 F.2d 258 (6th Cir. 1987). Under the current requirement to provide the basis for a contention, a petitioner nrust provi<lt::
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| some sort of minimal basis indicating the potential valid*ity of the contention. urhe requirement generally is fulfilled when the sponsor of an otherwise acceptable contention provides a bri.ef recitation of the factors underlying the contention or references to documents and texts that provide such reasons." Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 1), ALAB-868, 25 NRC 912, 930 (1987). The revised rule does,
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| - howt::ver, overturn the holdings of Mississippi Power and Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 AEC 423, 425-26 (1973) and Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 NRC 542, 546-49 (1980). The Appeal Board found in those cases that the current language of 10 CFR §2.714 does not require a petitioner to describe facts which would be offered in support of a proposed contention.
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| The new rule will require that a petitioner include in its submission some alleged fact or facts in support of its position sufficient to indicate that a genuine issue of material fact or law exists.
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| We reject the arguments that the new rule is unfair and a denial of due process because it requires intervenors to allege facts in support of its contention before the intervenor is entitled to discovery. Several months before contentions are filed, the applicant will have filed an application with the Corrmission, accompanied by multi-volume safety and environmental reports. These documents are available for public inspection and copying in
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| - the CoDlllission's headquarters and local public document rooms. Admitted intervenors will continue to be able to use discovery to develop the facts necessary to support its case. However, the rule will require that before a contention is admitted the intervenor have some factual basis for its position and that there exists a genuine dispute between it and the applicant. It is true that this will preclude a contention from being admitted where an intervenor has no facts to support its position and where the intervenor contemplates using discovery or cross-examination as a fishing expedition which might produce r~levant supporting facts. The Commission does not believe this is an appropriate use of discovery or cross-examination.
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| BPI v. Atomic Energy Corrmission, 502 F.2d 424,_429 (D.C. Cir. 1974). The Commission believes it is a reasonable requirement that an intervenor be able to identify some facts at the time it proposes a contention to indicate that a dispute exists between it and the applicant on a material issue.
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| The Coounission agrees with coD111enters that the new rule may require persons seeking intervention to do more work at an earlier stage of the proceeding than under the current regulations. However, the Commission disagrees with the conclusion reached by some commenters that the rule shifts the burden of
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| proof to potential intervenors or should be rejected because of the burden placed on potential intervenors. The revised rule does not shift the ultimate burden of persuasion on the question of whether the permit or license should be 1ssued; it rests with the applicant. Rather, the rule only details what 1s expected of an intervenor as part of its burden of coming forward with information in support of a proposed contention. Cf. Consumers Power Co.
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| (Midland Plant, Units 1 and 2), ALAB-123, 6 AEC 331, 345 (1973). The Commission believes it to be a reasonable requirement that before a person or organization is admitted to the proceeding it read the portions of the application (including the applicant's safety and environmental reports) that address the issues that are of concern to it and demonstrate that a dispute exists between it and the applicant on a material issue of fact or law. Many intervenors i~ NRC proceedings already ably do what is intended by this requirement: th~y review the application before submitting contentions,
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| - explain the basis for the contention by citing pertinent portions and explaining why they have a disagreement with it.
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| The Commission also disagrees with the comments that§ 2.714(b)(2)(iii) should perunt the petitioner to show that it has a dispute with the CoR1J1ission staff or that petitioners not be required to set forth facts in support of contentions until the petitioner has access to NRC reports and documents.
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| Apart from NEPA issues, which are specifically dealt with in the rule, a contention will not be admitted if the allegation is that the NRC staff has not performed an adequate analysis. With the exception of NEPA issues, the sole focus of the hearing is on whether the application satisfies NRC
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| regulatory requirements, rather than the adequacy of the NRC staff performance. See,~' Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-728, 17 NRC 777, 807, review declined, CLI-83-32, 18 NRC 1309 (1983). 21 For this reason, and because the license application should include sufficient information to form a basis for contentions, we reject conmienters' suggestions that intervenors not be required to set forth pertinent facts until the staff has published its FES and SER.
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| The new rule provides that in ruling on the admissibility of a contention, the prtsiding officer shall not admit a contention to the proceeding if the intervenor fails to set forth the contention with reasonable specificity or establish a basis for the contention. In addition, the contention will be dismissed if the intervenor sets forth no facts or expert opinion on which it
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| - intends to re*1y to prove its contention, or if the contention fails to establi~h that a genuine dispute exists between the intervenor and the applicant (or, possibly, the NRC staff on a NEPA issue). Contrary to the assertions of some commenters, the use of this standard for the admission of contentions has been supported by the Federal courts in numerous instances.
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| Vermont Yankee Nuclear Power Corp. v. NRC, 435 U.S. 519 (1978);
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| 2/ The ColTlllission recognizes that in some cases the applicant's and the NRC staff's position on a particular issue will be similar. Although under these rules the contentions must be framed to disagree with the applicant's position, an intervenor's evidentiary in the proceeding. For each issue appealed, the precise portion of the record relied upon in support of the assertion of error must also be provided.
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| Independent Bankers Ass'n v. Board of Governors, 516 F.2d 1206 (D.C. Cir.
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| 1975); Connecticut Bankers Ass'n v. Board of Governors, 627 F.2d 245 (D.C.
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| Cir. 1980). The court in the latter case emphasized that "a protestant does not become entitled to an evidentiary hearing merely on request, or on a bald or conclusory allegation that such a dispute exists. The protestant must make a minimal showing that material facts are in dispute, thereby demonstrating
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| ,ie that an 'il'lquiry in depth' is appropriate." 627 F.2d at 251. The Co1T111ission 1 s rule is consistent with these decisions.
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| Several commenten. were concerned that tht standard "dispute on a genuine issue of material law or fact" is the same one to be usea by the presiding officer in ruling on motions for summary judgment filed under 10 CFR 2.749.
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| The Commission expects that at the contention filing stage the factual support necessary to show that a genuine dispute exists need not be in affidavit or
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| ,*19 formal evidentiary form and need not bt of the quality necessary to withstand a su1T1T1ary disposition motion. At the su111T1ary disposition stage the parties will likely have completed discovery and essentially will have developed the evidentiary support for their positions on a contention. Accordingly, there is much less likelihood that substantial new information will be developed by the parties before the hearing. Therefore, the quality of the evidentiary support provided 1n affidavits at the summary disposition stage is expected to be of a higher level than at the contention filing stage.
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| The proposed rule also provided i~ section 2.714(d)(2) that the presiding officer would refuse to admit a co~tention where:
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| (ii) It appears unlikely that petitioner can prove a set of facts in support of 1ts contention; or (iii) The contention, if proven, would be of no consequence in the proceeding because it would not entitle petitioner to relief.
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| The requirement in (iii) above was intended to parallel the standard for dismissing a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Tht intent of Rule 12(b)(6) is to permit dismissal of a claim where the plaintiff would be entitled to no relief under any set of facts which could be proved in support of his claim.
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| A number of commenters disagreed with the language of proposed
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| §2.714(d)(2)(ii); specificdlly, the phrase "appears unlikely", because it suggests that the presiding officer is to prejudge the merits of a contention before an intervenor has an opportunity to present a full case. The Commission recognizes the potential ambiguity of the proposed phrasing and the paragraph has been deleted.
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| Issues which arise under the National Environmental Policy Act (NEPA) are specifically addressed in the new rule. NEPA requires the NRC to analyze the environmental impact of its proposed major actions significantly affecting the quality of the environment. In the licensing context, the NRC fulfills this obligation by issuance of a draft environmental impact stdtement (DES) ana a final environmental impact statement (FES). Any license or permit application
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| subject to NEPA s impact statement requirement must contain a complete 1
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| Environmental Report (ER) which is essentially the applicant 1 s proposal for the DES. (See 10 CFR 51.20 and 51.40). As described in§ 2.714(b)(2)(iii),
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| an intervenor will be required to demonstrate that a genuine dispute exists between it and the applicant or the staff on a material issue of fact or law which relate~ to NEPA. Several co1T1T1enters took exception to the provisions in paragraph (b)(2)(iii) of§ 2.714 relating to environmental matters, claiming, among other things, that those provisions appear to authorize petitioners to submit late-filed contentions based on the NRC staff 1 s environmental review documents. One commenter reconillended that the discussion of NEPA issues in
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| § 2.714(b)(2)(1ii) be del~ted as unnecessary, noting the availability of a right, based on past precedents. to amend or supplement environmental documents to reflect new information. The commenters disagreed on whether contentions relating to environmental matters should focus on environmental
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| - reports submitted by the app 11 cant or env i ronme:nta l documents pre pa red by the NRC staff.
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| The Commission has reexamined those portions of§ 2.714(b)(2)(iii) which relate to the filing of environmental contentions in the light of these co11111ents and has concluded that the text of the rule as presently drafted is clear and that no further revision is needed. The rule makes clear that to the extent an environmental issue is raised in the appl1cant 1 s ER, an intervenor must file contentions on that document. The NRC staff in its DES or FES may well take a different position than the applicant. 10 CFR 2.714(b)(2)(iii) explicitly recognizes for environmental matters existing
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| precedent regarding the right to amend or supplement contentions based on new information. The Commission wishes to emphasize that these amendments to
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| § 2.714(b)(2)(ii1) are not intended to alter the standards in§ 2.714(a) of its rules of practice as interpreted by NRC caselaw, ~ . Duke Power Co.,
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| (Catawba Nuclear Station, Units 1 and 2), CLI-83-19, 17 NRC 1041 (1983),
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| respecting late-filed contentions nor are they intended to exempt environmental matters as a class from the application of those standards.
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| One commenter objected to the inclusion of the word "concise" in paragraph (b)(2)(ii) of § 2.714 on the ground that it "could be misconstrued as requiring brevity." The commenter added that a word or phrase which connotes sufficient detail to inform the reader of the various tactual or other bases for the contention should be used insteaa.
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| The Corramssion disagrees with ttii: view of the colllllenter that retention of the word "concisf" in paragraph (b)(2)(i1) of§ 2.714 could be misleading. In the opinion of the Confflission, paragraph (b)(2)(ii), when read in context with paragraphs (b)(2)(i) and (b)(2)(iii) of§ 2.714, clearly identifies the kind of detailed information which a petitioner must provide to enable the Corrmission or the presiding officer to determine whether a contention should be admitted in a particular adjudicatory proceeding.
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| Several commenters suggested that paragraph (b)(2)(iii) of §2.714 should requir~ that the issue being raised is not only in dispute but is also "material", that is, that the resolution of the dispute would make a
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| difference in the outcome of the licensing proceedirig. The Connnission concurs that that was the intention of the requirement, as is demonstrated by the language of paragraph (d)(2)(i) of §2.714, which provided for "determining whether a genuine dispute exists on a material issuew of law or fact. Section 2.714(b)(2)(iii) has been revised to include the word "material".
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| One convnenter expressed the view that there was very little likelihood that contentions involving purely legal issues would be submitted (in most cases contentions raise mixed questions of law and fact) and therefore paragraph (d)(2)(iv) of§ 2.714 is unnecessary and should be deleted. Another commenter disagreed with the form of§ 2.714(d)(2)(iv). As written, it conflicts with the proposed definition of a contention in 10 CFR 2.714(b)(2) as a statement of II law, fact or policy". While not opposed to the. intent of the proposal, the co111T1t:nter reco1T111ended that this section be revised to read as follows:
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| If the Commission, the presiding officer, or the Atomic Safety and Licensing Board designated to rule on the admissibility of contentions determiries that any of the admitted contentions constitute pure issues of law, those contentions must be ciecided on the basis of briefs or oral argument according to a schedule determined by the CoD111is.sion or the presiding officer.
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| The intent of the proposed rule in§ 2.714(d)(2)(iv) was that purely legal contentions, which occur rarely, may be admitted as issues in the proceeding.
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| However, they will not be a part of an evidentiary hearing, but rather, will
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| be handled on the basis of briefs and oral argun~nts. A new paragraph (e) has been added to §2.714 to clarify this intention.
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| The ColTITlission is also making a clarifying change to 10 CFR §2.714(c). That paragraph provides that any party to a proceeding may file an answer to a petition to intervene within certain time periods. Prior to 1978, a person petitioning to intervene in an NRC proceeding was required to state not only how his or her interest might be affected by the results of the proceeding, but also the basis for his or her contentions with regard to each aspect on which he or she desired to intervene. Under that scheme for petitions for leave to intervene, it was clear that a response filed pursuant to 10 CFR
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| §2.714(c) could be a response to the contentions ana the bases for any contentions proposed. In 1978, the Rules of Practice were amended to provide that a petitioner could file his or her contentions separately in a supplement
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| - to the original petition to intervene, not later than fifteen days prior to the special prehearing conference held pursuant to 10 CFR §2.751a or the first pretiearing confertnce. Section 2.714(c) was not amended to make it clear that answers to these supplemental petitions containing contentions ana their bases were permitted as well as to the original petition to intervene. However, the practice before the Commission since 1978 has been that answers to supplements to petitions to intervene as well as to an initial petition to intervene are permissible within the timeframe established in §2.714(c). Language is being added to §2.714(c) to make it clear that answers to both initial petitions and any supplements thereto are permissible.
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| Former Commissioner Asselstine also suggested in the proposed rule additional changes in the Corrmission's rules on intervention and public participation in the licensing process. Changes to 10 CFR 2.104, 2.714, 2.751a and 2.752 were proposed to require early publication of notice of receipt of an application, to specify the time within which petitions for intervention can be filed, to separate the decision on standing from the decision on the validity of contentions, to provide for a mandatory ninety day period of time to draft contentions, and to create a two stage screening process to determine whether or not a genuine issue of a material fact exists with re~pect to each contention.
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| Those commenters who tavored former Commissioner Asselstin~*s proposdls felt they would improve the efficiency of the hearing process without imposing additional burdens on intervenors. They were thought to be logical and easy
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| - to understand and dealt with the fact that although the hearing clock begins when dn application is docketed, much of the documentation of interest to intervenors may not be ready for some time. Some cornmenters felt the proposals would encourdge inforrrial discussion and resolution of disputes and wtre generally more equitable and fair.
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| Those convnenting unfavorably on the Asselstine proposals felt they would exacerbate the current problems of instability and unpredictability in the hearing process. The use of provisional admission and the notice of receipt proposals would only add additional steps to the hearing process without increasing its effectiveness. They felt presiding officers already have the
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| - 25 ~
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| authority to reject petitions for intervention prior to submission of contentions and do so. These proposals would substantially increase the number of parties and contentions without any countervailing benefit. Other commenters, although favoring the approach of CoR1TJissioner Asselstine, believed discovery should take place before contentions and that too much discretion was being given to the presiding officer to dismiss contentions.
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| The Commission has considerea the comments on ColliTlissioner Asselstine 1 s proposals and concluded that it does not wish to take any additional action regard1ng these proposals at this tiw~. Several of them address the same aspects of the hearing process,~ the filing of contentions, as the proposed rule changes made by the Commission, and, the ColTlllission has chosen to adopt those rules essentially as proposed.
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| * 2. Subpoenas (10 CFR 2.720) D1scovery Against NRC Staff The proposed amendments to 10 CFR 2.720(h)(2)(ii) would codify two existing grounds used by NRC staff to object to responding to interrogatories from parties in NRC adjudicatory proceedings. This change would enable the staff simply to cite the provisions of the rule in objecting to a request, thereby conserving limited staff time and resources. The first ground for objecting reflects existing NRC practice in which a response stating that the requested information is available in either NRC public document rooms or in public compiiat1ons and providing sufficient information to enable a party to locate the material requested is considered adequate. The second ground would limit
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| the scope of an interrogatory by barring the requester from asking the NRC staff to explain its reasons for not using data, assumptions and analyses where the NRC staff did not rely on this information in its review. Persons submitting interrogatories would also be prevented from askfng the staff to perform additional research or analytical work beyond that needed to support the NRC staff's position on any particular matter. Requesters could continue to submit interrogatories seeking to elicit factual information reasonably related to the NRC staff's po~ition in the proceeding, including data used, assumpti-0ns made and analyses performed by the NRC staff.
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| The commenters who supported the propos,ed amendments did so because they believed it would be advantageous if certain established and well recognized precedents commonly used in NRC adjua,catory procedings were codified in NRC's Rules of Practice. According to the commenters, the perceived advantages of codification included conservation of increasingly limited NRC staff resources, increased use of accepted legal procedures and reduction of delays in the application review process. One co11T11enter stated that these procedures should not be limited to the NRC staff but that they should be equally available to all parties to any NRC adjudicatory proceeding. Several commenters who opposed the rule, also made this corrment.
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| One colTlllenter supported codification in principle but pointed out that the proposed amendments as presently drafted, do not accurately reflect existing precedtrnt. For example, the proposed amendments convert a statement indicating the .availability of a document, long recognized as an acceptable
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| response, into an acceptable rationale for not responding. The commenter also took issue with the prohibition against the submittal of quest1ons requesting the NRC staff to explain why it did not use certain alternative data or assumptions or perform certain analyses. According to the corrmenter, questions of thi~ type would not require the staff to perform additional research; the staff need only respond by providing an explanation.
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| The conunenters who opposed placing additional restrictions on interrogatories to the NRC staff d1d so for a variety of reasons. Considered unfair, unntcessary and unwise as a matter of policy, the proposed amendments were criticized because they woula defeat the basic purpost of discovery--to obtain relevant information on issues raised ,n and pivotal to the proceeding, thereby preventing surprise at trial.
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| A number of commenters 11oted that the staff is a major if not crucial party because it is the party with the technical resources and expertise.
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| lnterv~nors need full opportunity to understand and question the staff's position. Moreover, the staff should be held accountable for its actions.
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| This proposal could restrict the flow of information and would place the burden on intervenors to locate information bearing on the staff's position.
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| This woula increase intervention costs. The current rules provide ample protection for the staff. If anything, discovery against the staff should be increased rather than decreased.
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| A number of commenters opposed to the rule change expressed concerns similar to those described abov.e made by supporters of the rule. They were concerned that the proposed rule would improperly shield the staff from its obligation to explain and justify its position. The stated rationale for the rule--caselaw on the issue of requiring extensive indep~ndent research--does not support the proposal in the view ot one commenter. The staff may have examined alternative assumptions, data and analyses and chosen not to rely on them. Interrogatories asking the staff to provide an explanation for why one particular source of data or analysis was chosen is fair discovery.
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| S~\eral commenters argued that parties are entitl~d to know not just the facts supporting the staff s position but whatever facts are in the staff s 1 1 possession. It is unreasonable and unfair to limit discovery to information that supports the staff 1 s position. Relevant facts which do not support the staff's final position could be concealed.
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| A number of commenters were also critical of the assertion that this proposal was an attempt to conserve staff resources. Several asserted that the existing rules already give the staff special status in responding to discovery. If the staff i.s to remain a full party, it should be equal not privileged. Coll11lission arguments that this rule is necessary to preserve scarce staff resources are not consistent with positions previously taken with respect to other parties to NRC proceedings. The Co11111ission has consistently taken the view that parties are not excused from hearing obligations due to a lack of resources. Inhibiting the flow of information is not an appropriate
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| way to deal with scarce staff resources. The Commi~sion should either seek additional appropriations or eliminate party status for the staff.
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| If the Corrmission wants to institutionalize the two objections discussed in the proposal they should be made applicable to all parties not just the staff *.
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| Commenters representing .applicants asserted that discovery against them has many of the same objectionable qualities--asking for documents already on the docket or r~questing the applicant to perform new analyse~. These corrmenters saw no justification for codifying the NRC caselaw solely for the benefit of the staff.
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| A number of commenters were also critical of the second element of the proposed rule which would codify the existing NRC practice that an adequate discovery respon~e is to state that the requested information is available in
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| - public document rooms or other public compilations. Several co11111enters noted that this proposal does more than just codify existing practice. If that were all it did, the basis for it is weak, because citing a rule rather than caselaw is not a meaningful reduction in staff workload. The proposal converts a method of response (citation to a specific document} into grounds for not responding. Under the proposed rule the Licensing Board must determine if information is reasonably obtainable from the public document room or another source. But the Licensing Board won't readily be able to determine this on its own. The staff might as well respond at the outset with the infonnation which constitutes an adequate response under existing practice--title, page reference and location of document--rather than object
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| and become involved in a round of pleadings to determine the staff 1 s duty to respond.
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| Several coDITienters objected to the proposal because of the impact they felt it could have on specific types of proceedings. One conrnenter objected to limitations on interrogatories to the staff in enforcement proceedings 9 regarding alternative assumptions and analyses not relied on. The concern was that if the staff refused to rely on a particular analysis performed by the licensee or its contractor in determining compliance, litigation of the issue could be protracted if the ~taff were not required to address it during discover)'.
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| The Corrunission has decided to adopt the proposed changes to its discovery
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| - procedures; however, the changes will apply to all parties to NRG proceedings, not just to the NRC staff. Beca~se of this expanded applicability of the changes, they are being incorporated into 10 CFR § 2.740, the general provi~ions governing discovery rather than into§ 2.720 as proposed.
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| Convnission caselaw has long established that while in response to a discovery request a party must reveal information within its possession and control, which may entail some investigation to determine what information is in the party*s possession, the party is not required to engage in independent research. Pennsylvania Power and Light Co. (Susquehanna Steam Electric Station, Units 1 and 2, ALAB-613, 12 NRC 317, 334 (1980). The breadth of
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| permissible interrogatories is limited to those which address factual information related to a party's position in the proceeding, such as data used, assumptions made, and analyses performed by the party.
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| A party must provide the basis for its position on an issue in the proceeding, but the Co111T1ission does not believe that a party should be called upon through
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| - the di-scovery process to explain why it did not use other data or be required to perform additional studies. Interrogatories which elicit what data the party has relied on and why are acceptable. Interrogatories which ask a party to describe reasons why other data were not relied upon in developing a party's position will not be permissible. So long as prior to the trial, parties have an opportunity to learn what another party has done or what information that other party has to provide the basis for its position, tht party seeking discovery will be able to show 111 the hearing what, in its view, th~ other party should have done or why its position is incorrect. By eliminating burdensome interrogatories the Corrmission will conserve not only its own staff resources, but provid~ a fair hearing process for all parties.
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| These principles are part~cularly important when applied to the NRC staff. To the extent that discovery elicits otherwise unavailable factual information concerning the basis for the staff's position on a particular issue in a proceeding, a party should be better prepared for trial. At the same time, the staff should be able to produce the factual information requested with minimal disruption of its limitea resources. Staff documents relevant to a proceeding are publicly available as a matter of course unle_ss there is a
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| compelling justification for their nondisclosure. These publicly available documents reasonably disclose the basis for the staff's position. Thus formal discovery against the staff may legitimately be narrowed to minimize staff resources involved in time consuming discovery procedures.
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| The second proposed change to discovery procedures does not, despite suggestion by some co1T1TJenters to the contrary, add any new bases for objecting to interrogatories. The change merely clarifies current practice that when a document is reasonably available from another source, such as the Commission's Public Document Room or local Public Document Room, the information need not be provided in response to the interrogatory. A sufficient answer to such an interrogatory is the location, title and a page reference to the relevant document.
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| : 3. Evidence (10 CFR 2.743) Cross-Examination The proposed amendment to 10 CFR 2.743 would require a party to a proceeding to obtain the permission of the presiding officer in order to conduct cross-examination and would bar the presiding officer from considering any request to cross-examine unless the request was accompanied by a cross-examination plan containing specified information. The required plan would include a brief description of the issues on which cross-examination would be conducted and a proposed line of questions to achieve stated objectives together with the expected answers. The cross-examination plans
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| would be kept confioential until the presiding officer issued his or her decision.
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| The corrmenters who supported the proposed amendments believed the requirement for a_ plan would encourage parties to think out their case in advance and would lead to better questions and a shorter proceeding. The proposed changes
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| - would add structure to cross-examination and decrease repetitive and cumulative questions. Some noted that cross-examination plans are essentially already standard practice, while others indicated their belief that the proposed chang~s would improve tht Board's ability to control proceedings.
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| One connenter, in supporting the proposal, not~d that the NRC was within its authority to limit cross-examination to case~ where it is required for full and true disclosure of the facts; nothing in the Atomic Energy Act or the Administrative Procedure Act guarantees an absolute right to cross-examine 9 witnesses. Seacoast Anti-Pollution League v. Costle, 572 F.2d 872, 880 (1st Cir. 1978); cert. denied, 439 U.S. 824 (1978).
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| Several of these same commenters believed the ColTITlissi'on's proposed changes did not go far enough. One asserted that the proposal would not change the hearing process but would only increase procedural requirements that will do little absent a vigilant presiding offi-cer. The Commission should only permit cross-examination if the points to be made could not be achieved by written testimony. Under such an approach, cross-examination would be reserved for impeaching credi.bility. Several suggested that a party's cross-examination should be limited to hsues or contentions that the party had placed in
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| controversy. Another suggested that if more than one interested party had raised an 1ssue, lead responsibility for litigating it should be assigned to one party.
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| One co111T1enter stated that this proposal was so watered down from the Commission's earlier proposal in its Advanced Notice as to be almost
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| - meaningless. The Board should permit cross-examination only where, based on written evidence, ther~ is a genuine and substantial issue of fact and resolution would be substantially assisted by cross-examination. This co1TV11enter also believ~d that the rule should provide for establishing time limits and noted that requiring and enforcing time limits is routine in Federal courts and other adm1ntstrative agencies.
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| Commenter~ opposed to the proposed rule had concerns both with the proposal as a whole and with specific aspects ~fit. Several asserted that cross-examir,ation is a fundamental right, and is especially important in NRC proceedings which deal with matters of public health and safety. In their view, the public interest in a full look at safety matters outweighs an interest in reducing a cluttered record. The proposal seeks to gain efficiency at the expense of quality decision-making and the openness of the process. To restrict cross-examination is to negate the purpose of adjudicatory proceedings--to adjudicate disputed facts. The purpose of cross-examination i~ to explore credibility, inconsistency and bias.
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| Effective cross-examination requires an element of surprise and the ability to s~1ft direction. One corrrnenter asserted that the stated reliance on caselaw
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| 1s misplaced. While the caselaw does support requiring parties to demonstrate the need for cross-examination, it has never suggested that barriers may be used to actively preclude the public litigant fro~ participating.
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| Several convnenters argued that the proposal imposes a disproportionately severe impact on intervenors. Some argued that the proposed rule was a
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| - blatant attempt to limit the record to testimony prepared by applicant and staff who have the resources to file a large amount of direct testimony.
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| Intervenor~ are more likely to make their case on cross-examination because th~y lack the resources to produce their own witnesses.
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| A number of comrnenters also opposed the rule as unnecessary because the existing rules, 10 CFR 2.718 and 2.757, are more than sufficient to control cross-examination. The conduct of a hearing and the scope and amount of 9 cross-examination are traditionally within the presiaing officer's discretion.
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| One co11W1enter rioted that prefiled cross-examination plans are essentially already standard practice. Another stated that such require~nts are unnecessary for experienced counsel and unenforceable against oth~rs. Several noted that the proposal could waste more time than it would save by creating litigation of the cross-examination plans and by creating a new area for appellate litigation. The remedy is for the board to control the hearing, not add new paperwork requirements on counsel.
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| Another corrmenter took a slightly different approach in opposing the proposed rule. This colTITienter felt there were preferable means to limit argumentative
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| and unnecessary cross examination. Parties should be limited-to litigating only their own contentions and only their stated interest in the contention.
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| If parties have a corrmon interest, their contentions may be jointly admitted and lead responsibility assigned for litigating the contention, including cross-examination. Rather than develop more paperwork, the Corrrnission should simply reiterate that hearings be conducted in strict accordance with the NRC's evidentiary practice.
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| One commenter questioned whether a Board in rejecting a cross-examination plan would not be prejudging an iss~e bEcause the presiding officer might, not understand the party's overall litig.ation strategy. Another questione:o whether NRC can legally require a party to produce its workproduct to the Board and ultimately to other parties. On the other sidei one comment~r expressed conc~rn that the filing of plans in confidence with the Board could 9 unfairly influence the Board because pdrties could expound th~ir theory of the case under the guise of describing objectives to be achieved during cross-examination.
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| One conmenter argued that the proposed rule change violates the requirements of the National Environmental Policy Act (NEPA) for full consideration of all environmental impacts of a decision to license a nuclear power plant. Another commenter asserted that it would violate due process requirements if proceedings to impose civil penalties as well as other enforcement proceedings are not excluded from the rule.
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| Several objections to specific elements of the proposal were also noted. Many felt fifteen days to review prefiled testimony and prepare cross-examination plans was insufficient. A number of commenters objected to the requirement that the plans include not only questions but also the expected answers to questions. Most felt a statement of objectives and a proposed line of questions was sufficient for a Board to determine relevancy. If answers are 9 required, then a party is in effect limited to asking questions for which he or she already knows the answers. A requirement for prefiled questions and answers would unfairly limit the scope of cross-examination because it would not allow questioners to follow up on the unexpected. Cross-examination is dynamic and litigants need the flexibility to try different tacks. The logical extension of the proposed requirement would be plans for redirect and recross-examination which would further delay a proceeding. Several cormienters also notea their belief that this requirement could have a negative impact on discovery. They feared it could encourage a lack ot full and prompt response tu discovery by applicants i11 order to make it difficult for intervenors to file adequate plans and, consequently, to conduct cross-txaminatio~.
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| The Commission believes that cross examination plans can have a very beneficial impact on the conduct of a hearing by encouraging parties to develop and evaluate the objectives they expect their cross-~xamination to achieve and by giving the presiding officer the necessary information to effectively ma*nage the procet:ding. The CoITmission disagrees with those com~nters who believe that the use of cross-exaffi1nation plans will sacrifice
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| the quality or openness of its decisionmaking for the sake of efficiency.
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| Cross-examination plans have been used effectively in a number of Colllllission proceedings. We do not believe it is unduly burdensome to require a party to a proceeding to examine prefiled testimony sufficiently to be able, to articulate to the presiding officer the nature of the questions the party believes are necessary to illuminate the issues of concern to it. However, because the usefulness of this procedure is highly dependent upon the circumstances of a particular proceeding, th~ final rule has been changed to give the Presiding Officer discr~tion to require submittal of the plans.
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| The regulation makes clear that parties are entitled to conduct such cross-examination, in accordance with a plan if required by the Presiding Officer, as is necessary for full a~a true disclosure of the facts. This is the standard set furth in section 7(c) of the Administrative Procedure Act, 5 U.S.C. 556(d) and existing§ 2.743(a). That provision has never been understood to confer unfettered rights to cro~s-examine witnesses. See Seacoast Anti-Pollution League v. Castle, 572 F.2d 872 (1st Cir. 1978); cert.
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| denied, 439 U.S. 824 (1978); Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-244, 8 AEC '857, 867 n. 16 (1974),
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| reconsideration denied, ALAB-252, 8 AEC 1175, aff'd., CLI-75-1, 1 NRC 1 (1975). The standard in the rule will assure that issues are appropriately examined ana it is also consistent with the Corrunission's obligations under NEPA to consider the environmental impacts of a decision.
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| We do not believe, as suggested by some commenters, that a more restrictive test for cross-examination,~ where genuine and substantive issues will be substantially assisted by cross-examination, is appropriate. The option of requiring use of cro~s-examination plans together with the discretion granted to the presiding officer elsewhere in the regulations to limit unnecessary, argumentative or duplicative cross-examination provide adequate measures to
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| - control the conduct of cross-examination.
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| This regulation will not inhibit a party's ability to use the element of surprise or shift direction as the cross-examination progr~sses. When a plan is required, parties must submit objectives a~d a proposed line of questions.
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| They are 11ot required to ~ubmit all of the questions to be asked. If the objectives are sufficiently developed and described, there will be no imptdiment to shifting the direction of questioning in response to the answers e received because the presiding officer will be aware of the ultimate objective of the questioner or be able to ascertain through brief queries of the cross-examiner wt~ the change in direction is appropriate. It is also noted that the plans are required to be kept confidential by the presiding officer.
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| The Co1J111ission aoes agree with a number of commenters that a requirement to include the postulated answers to the questions may create an unnecessary burden or, the preparer of the plan. The intent of the requirement was to help the presiding officer understand more easily how the proposed line of que~tions would achieve the stated objective. We have concluded, however, that the statement of objectives can provide sufficient notice to the presiding officer of the party's intentions and the final rul~ deletes the requirement to include in the plan expected responses to proposed questions.
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| Several comrnenters were also concerned that 15 days was insufficient time to examine testimony and prepare cross-examination plans. Deleting tht requirement to include postulated answers should eliminate much of the difficulty which commenters identified for preparation of the plans.
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| Therefore, w~ are retaining the 15 day prefiling requirement. However, language has been added to §2.743(b)(2) to indicate that the schedule for
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| - filing cross-examination plans is to be established by the Presiding Officer.
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| This will assure that the presiding officer will have sufficient time after filing of testimony but before the hearing to review the plans and mdke any nece5sary rulings. It will also permit the Presiding Officer to accomodate any unique circumstances of a particular proceeding.
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| Several commenttrs suggested that the Commission should impose strict limits on when cross-examination will be available,~. for impeaching credibility or wh~re a genu1ne and substantive issue is substantially assisted by cross-examinati0n, and that it 5hould limit the issues on which an intervenor may cross-examin~ and assign lead responsibility to a party when several have raised the same issues. The agency s rules currently authorize a presid1r19 1
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| officer to consolidate parties and limit or consolidate cross-examination. 10 CFR 2.715a, 2.718 and 2,757. The Conrniss1on believes it is desirable to retain the presiding officer 1 s flexibility to decide whether such consoliaation is appropriate and therefore, has not limited the presiding officer s discretion in this regard.
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| 1
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| One commenter noted that civil penalty and enforcement proceedings should be excluded from these requirements. As drafted, proposed paragraph (b)(3) of§ 2.743 provided that paragraphs (b)(l) and (2) of the section do not apply to proceedings unaer Subpart B of this part for modification, suspension, or revocation of a license. This was intended to continue the existing exemption for enforcement proceedings from requirements regarding prefiled testimony and provide a similar exemption concerning cross-examination plans. The Commission agrees that civil penalty proceedings as an additional type of enforcement proceeding should be included within these exemptions. The final rule has been revised to clarify the intended exemptions and to include civil penalty proceedings within the exemptions.
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| Several changes of a clarifying nature have been made to the rule as proposed.
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| 10 CFR §2,743(b)(2)(iii) has been modified to indicate that the presiding officer is to keep the cross-examination plans in confidence until the initial decision on the n~tter being litigated has been issued. The language describing how the plans are to become part of the official record has also been clarified.
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| : 4. Authority of Presiding Officer to Dispose of Certain Issues on the Pleadings (10 CFR 2.749) Surrmary Disposition The proposed amendment to§ 2.749(a) would permit motions for surrmary disposition to be filed at any time during the proceeding, including during the hearing. Current rules provide that summary disposition motions shall be
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| filed within such time as may be fixed by the presiding officer and also provides that the presiding officer may dismiss motions filed shortly before the hearing commences if responding to or ruling on the motion would divert substantial resources from the hearing. The proposed change is intended to give parties maximum flexibility to file such motions and to terminate litigation at any point in the proceeding when it becomes apparent that no
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| * genuine issue of material fact remains in dispute.
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| Those commenters who favored the proposed change felt that it would help simplify and rationalize the hearing process by preventing unnecessary litigation. Resolution of issues would be permitted at any point ~here it became apparent furth~r hearing is unnecessary. Thus, the proposal could expedite eliminafion of frivolous contentions. Another commenter pointed out thdt § 2.749(c) would still be available to protect a party who for valid reasons could not respond to a motion for surmiary disposition, and would thus provide sufficient protection against inopportune motions.
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| Sev~ral commenters recolmlended that the proposal be clarified to provide that during a hearing, where cross-examination has not created a genuine dispute of fact and the intervenor has not called any witnesses, the Board is empowered to grant surrmary disposition on the applicant's testimony or the evidentiary record, without a requirement for supporting affidavits.
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| Commenters opposing the proposed change generally felt that it would not increase the effectiveness of the hearing process, but rather could. result in
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| chaos and enormous inefficiencies during the hearing process. Several corrrnenters were particularly concerned that this change would create the opportunity for harassing motions. Well-funded parties could overwhelm other parties with paperwork at crucial times. Several corrmenters felt the change would be: unfair to intervenors, who generally have fewer resources and rely on volunteers. Several indicated that time was needed before trial to prepare t~stimony and review that of others. If surrmary judgment motions coula be fil£:o anytime, they coula divert resources away from trial preparation. In addit1on, several expressed concern that motions could be filed before discovery was completed and before opponents of the motion coula have obtained information to respond to the motion. This could result in legitimatt safety issues being lost and never litigated. One convnenter noted that this proposed change constitutes a departure from Federa 1 practi c.e. The: purpose of summary judgment is to elimir.ate issues from the evidentiary hearing; therefore, summary disposition motions are appropriately filed before: a hearing begins.
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| Once the hearing has stdrted, use of summary judgment motions is more likely tu slow down rather than speed up the process.
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| Another corrmenter noted that the rule change is unnecessary because the current rule would permit summary judgment motions at all times if the presiding officer permits. If the rule is changed, however, the corrunenter argued that the last sentence of the current 10 CFR 2.749(a) should be retained. It provides that the Board may su111r1drily dismiss summary disposition motions if they ar~ filed shortly before or during the hearing and would result in a substantial diversior, of resources. The COITiTienter expressed
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| concern that without this sentence the presiding officer's authority to control the hearing process would be diminished. The Board should be abl~ to dismiss or at least hold in abeyance motions filed during the hearing that have the potential to disrupt the hearing.
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| Su1T1T1ary disposition is a significant procedural tool to eliminate unnecessary hearing time spent on testimony and cross-examination where no material issues of fact remain in di~pute. The Con11:ission hds evaluated the comments on sun111ary disposition and continues to believe that the advantages for streamlining the hearing process by explicitly permitting summary disposition nwtions to be filed at any time during the proceeding outweigh the potential disadvantages for the process. The Commission's regulations in 10 CFR 2.749(c) provide safeguards against potential abuses of the sunvnary disposit1on procedures. A party who is unable to respond to such a motion because discovery is incomplete may state his or her reasons in a response to the motion and the presiding officer may retuse to grant sunvnary disposition or take other appropriate action. The Commission believes that this provision provides sufficient protection in those instances where a party opposing a motion for summary disposition is unable to respond. However, the Coll1llission recognizes the validity of the concern expressed by several commenters that summary disposition motions filed close to the start of or during a hearing have the potential for prolonging the hearing. Therefore, a sentence has been added to 10 CFR 2.749(a) to give the presiding officer the discretion to dismiss or hold in abeyance summary disposition motions which could divert
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| substantial resources from the hsaring and thereby prolong the hearing process.
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| : 5. Proposed Findings and Conclusions (10 CFR 2.754) and Appeals to the Con~ission From Initial Decisions (10 CFR 2.762) Limitations The proposed amendmer,t to 10 CFR 2.754(c) would limit an intervenor's filings of proposed findings of fact and conclusions of law to issues which that party actually placed in controversy or sought to place in controversy in the proceeding. The proposed amendment to 10 CFR 2.762(d) woula similarly limit the issues which an intervenor could raise in an appellate brief. Under current practice, a party 111oy file proposed findinys and conclusions of law on any issue in the proceeding and may also appeal on all issues in the proceeding. The only limitation is that a party must have a di~cernible interest in the outcome of the particular issue being considered. The purpose of the proposed change is to ensure that prfsiding officers and agency appellate tribunals will be able to focus on disputed issues in a proceeding as presented and argued by parties with a primary interest in the issue. The change would also avoid having these ofticials inundated with filings from persons with little or no stake in the resolution of a particular issue.
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| The proposed amendments did not apply to the license applicant or the NRC staff. Applicants have the burden of proof to demonstrate that the action should be tijken and thus should be free to submit findings on all issues which coula affect the Co1T111ission s decision to grant a license or to take an appeal 1
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| from an adverse decision. The NRC staff has an ovErall intertst in the proceeding to assure that the public health and safety and environmental values are protected.
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| ColTdllenters ~upporting the change agreed that it would improve the hearing process and would contribute to the overall effort to streamline and make the hearing process more efficient. Several indicated they felt this change had consid~rable merit and ~,ould ensure that filings are submitted by parties who have a real concern and interest in resolution of issues. One supporter of the proposal suggested that the current policy which permits appeals by a party or, any issut whether they have litigated it or not is inconsistent with the basic tenet of hearings to resolve disputes between specific partits.
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| Redundant filings are ur,necessary and generally not helpful.
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| One con~~nter suggested that the Con~ission go further and preclude an intervenor from pursuing issues 1n which it has no cognizable interest. If this were done, there would be no need to place limits on cross-examination or tilings. Another suggested that the rule should also provide that an intervenor who fails to file proposed findings on ar, issue may not thereafter appeal the portion of the initial decision which deals with that issue.
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| Comments by opponents of the proposed change focused on three main points.
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| The first area concerned the discriminatory impact on intervenors and an asserted misperception on the part of the NRC of the role of 1ntervenors in NRC proce~dings. Several asserted that the proposal was a denial of due
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| process a~d one con~enter stated that the Administrative Procedure Act entitles all parties to a hearing to file proposed findings of fact and conclusions of law. 5 USC 557(c). Several argued that there was no logical explanation given for discriminating against intervenors. They called attention to the fact that in its proposed rule the Commission acknowledged that intervenors have broad, generalized interests in protecting the health and safety. This interest is akin to the same kind of interest which th~
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| Corranission found to be justification tor preserving the right of the NRC staff to file propo~~d findings and conclusions ot law. One co1T1T1ent~r asserted that the process of gaining admission as a party should be sufficient to dismiss any allegations of o lack of a aiscernible interest in the outcome of issues raised in the proceeding.
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| Several corranent1::rs desc.ribed the proposal as no,sterious aria confounding.
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| 11 11 In their view, the goal of the agency should bt to compile as full a record as possible for the decisionmakers; the NRC should not seek to limit the information it rectives in any licensing proceeoing. Findings and conclusions do not harm the decisionmaker and could be helptul. Another co1t111enter noted /
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| that the NRC currently has less than a dozen proceedings unaerway, suggesting that the Hearing Boards are not overworked or overwhelmed by cases.
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| Commenting specifically on the limitation of appeals to issues litigated by a party, one person noted that an erroneous initial decision should be identified and corrected no matter who initially raised the issue of concern.
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| A second focus of concerns was on the impact of such a change on NRC proceedi.ngs. .A number of coounenters suggested that the proposal would cause intervenors to adopt each other's contentions and assert all issues in order to preserve their rights. This could p.rolong the hearing and overwhelm hearings with the volume of participation on an issue. The proposal would also make it difficult for intervenors to work together, divide tasks and
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| - share the expense of litigating issues. Such coordination now makes it possible for intervenors to financially bear the cost of litigation and reduces redundancy in the proceeding. Currently, fntervenors may share issues and an intervenor may not pa.rticipate fully knowing another intervenor is raising the issue. Under this proposal if a party subsequently fails to pursue an issue, other intervenors would not have the opportunity to adopt the issue. ~Jithout this opportunity, further consideration of issues would be blocked regardless of how serious or meritorious they were. Also, because of the complex and technical nature of NRC's proceedings, an intervenor may discover it is interested in an issue it did not identify initially. The proposal also.ignores the fact that each intervenor brings a different perspective to the proceeding ana can make a unique contribution through their filings. Boards should be able to judge these filings and give them such consideration as their quality merits.
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| Finally, several corrmenters focused on the application of this proposal to an affected state. States bring a unique perspective to NRC proceedings and should have the opportunity to submit filings. Otherwise, NRC could be deprived of valuable input from the party with the most interest in a
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| particular issue. The State of Nevada indicated its view that under the Nuclear Waste Policy Act, a host state or Indian tribe is to be accorded the same status as the staff or an applicant. The proposed change would thus violate provisions of the NWPA.
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| - Another group of commenters, while generally favoring the proposal, disagreed with the language which would permit filings and appeals on issues which intervenors "sought to place in controversy". If an fssue has not been
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| \
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| admitted into the proceeding then r10 record will have been developed and no basis for proposed findings will exist. It is appropriate to allow an appeal and briefs on the basis that a contention was ~rroneously rejected. But this proposdl would appear to allow appeals on a much broader basis and permit filings on the merits of the contentions.
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| The Co~fflission has reviewed the comments on the propos~d changes to 10 CFR 2.754 and 2.762. After consideration of th~ various arguments put torth by the cormnenters, the Commission is persuaded that the proposed changes should be adoptea. Limitations on proposed findings and appeals to issues that the intervenor actually placed in controversy or sought to place in controversy will ensure that the parties and the adjudicatory tribunals focus their interests and adjudicatory resources on the contested issues as presented and argued by the party with the primary interest in, and concerns over, the issues. These sorts ot limitations should also serve to reduce the paper burdens fur the adjudicatory boards. We disagree with th~ suggestio~ that the proposed limitations will cause int~rvenors to raise a multitude of issues or
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| adopt each other's conter1tions in order to preserve their rights, and thus, will prolong and overwhelm the hearing proces~ with the attendant high level of participation on all issues. The new standards for admission of contentions that we are adopting as part of this rulemaking should serve to limit the degree to which any party can gain admission of contentions that are frivolous or in which the party has little real interest. Moreover, existing sections 2.715a and 2.718 which authorize the presiding officer to consolidate parties, issues and adjudicatory presentations, can and should be usr:d to limit unnecessary multi-party presentations and participation in the litigation of corrvnon tontentions.
| |
| The Commission has also .e;xamin1:d the assertior1 that the proposed rule could violated provision of the Administrative Procedure Act, 5 U.S.C. 557(c).
| |
| Thdt section provides that:
| |
| 11 Before a recorrvnended, initial, or tentative decision, or a decision on agency review of the decision of subordinate employees, the parties are entitled to a redsonable opportur11ty to submit for the consideration of the employees participating in the decisions--(1) proposed findings or conclusions; or (2) exceptions to the decision or recommended decisions of subordinate employees or to tentative agency decisions; and (3) supporting reasons for the exception or proposed findirigs or conclusions. 11
| |
| | |
| There has been little analysis ot this aspect of the APA in the case law; see 1
| |
| ~ Klinestiver v. DEA, 606 F2d. 1182 (D.C. Cir. 1979). While we recognize there may be some uncertainty about the appropriate reading of section 557(c),
| |
| we believe that the rule is in accord with the Acuninistrative Procedure Act because it preserves the opportunity for parties to file findings of fact 1 conclusions of law, and exceptions to initial decisions with respect to those issues which the party has specifically raised as concerns in the proceeding.
| |
| Practice under the Commission 1 s Histing regulations has been moving ,n the direction of a more carefully circumscribed appeals process. In Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2),
| |
| ALAB-845, 24 NRC 220 (1986) 1 the Appeal Board concluded that an intervenor which had limited its participation to certain technical issues and had not participated in any aspect of litigation of emerg~ncy planning contentions did not have a right to appeal the Licensing Board's decision in connection with
| |
| * the applicant's emergency plan. 11 Whether an intervenor has the right to pursue a particular is5ue on appeal is a function of the level of interest expressed by the intervenor in such issue throughout the course of the proceeding. 11 Id. at 253.
| |
| We also note that the phrase 11 sought to place in controversy" was intended to recognize that an appeal and briefs are permissible on the basis that a contention was erroneously rejected. The language was not intended to allow appeals on a broader basis or on the merits of the contentions not admitted.
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| In view of all of the above, th~ proposed amendment has been adopted.
| |
| Miscellaneous Issues Several coITmenters included their views on other possible rule changes discussed by the Corrmission in its 1984 Request for Public Cooment on
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| - Regulatory Refonn Proposals (49 FR 14698, April 12, 1984) which preceded this propos~d rule. Those proposals are not a part of this rulemaking. Th~
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| Co~ission evaluated comments on the 1984 proposals as part of the decision-making process which led to the choice of th~ five proposed changes which constitute this .rulemaking. No further di5cussion of those initial proposals is necessary.
| |
| Some co~nters objected to the application of these changes to High Level Waste (HLW) L1c~nsing proceedings. The Convnission has established the procedures for the HLW licensing proceeding in a final LSS rule which added a new Subpart J to 10 CFR Part 2 (50 FR 14925, April 14, 1989). However, the Commission is now in the process of evaluating whether any additional modifications are needed to these provisions. As part of its evaluation, the Corrmission is consid~ring wh~ther any of the provisions in the final amendments on regulatory reform that would not already be included in Subpart J by cross-reference, should be added to Subpart J. Section 2.1000 of Subpart J cross-reference~ any sections of general applicability in Subpart G of Part 2 th~t will continue to apply to the HLW licensing proceeding. As such, all
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| but one of the provisions in the final regulatory reform rule(§ 2.714, which requires contentions to show that a genuine dispute exists on an issue of law or fact) will apply to the HLW proce~d1ng. However, Subpart J contains a new provision on contentions,§ 2.1014, and consequently§ 2.714 would no longer apply to the HLW proceedir,g. The Commission intenas to evaluate the need to extend the ugenuine issue of fact" standard to the HLW proceeding. A
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| - o~term1nation of such d need would result in the Commission proposing a rule orr~nding 10 CFR 2.1014. As the Corrmission noted in the Supplementary Information to the final LSS-rule --
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| * the Commission is committed to do everything it can to streamline its licensing process and at the same time conduct a thorough safety rt:-view of the Department of Energy's application to construct a high-level wa~te repository. The negotiators to this rulemaking havt made a number of improv~ments to our existing procedures. However, more 9 improvements may be r,Ecessary if the Commission 1s to meet the tight 11tensing deadline established by the Nuclear Wdste Polity Act of 1982, as amended. By publishing this rule, the Commission is not ruling out further changes to its rule~ of practice, including further changes to the rules contained in the negotiated rulemaking. (50 FR 14925, 14930, April 14, 1989).
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| The revisea rules do not apply to civil penalty proceedings conducted under 10 CFR 2.205. Section 189a. of the Atomic Energy Act does not provide for third parties to participate as "interested persons'' in such proceedings.
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| | |
| These amendments win take effect thirty days after publication in the Federal Register. The amendments will apply only to contentions in proceedings initiated after that date. The CoU111is.sion I s rules and administrative decisions interpreting those rules in ~xistence prior to that date will be applied to contentions filed in proceedings initiated prior to that date.
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| Withdrawal of Earli~r Rulemaking The Commission published for public comment on June 8, 1981 (46 FR 30349) a proposed rule to make changes to elements of its Rules of Practice, including sev~ral of the s~ctions amended by this proceeding. Because the Corrmission has chosen to proceed with adoption of the changes to* its Rules of Practice included in this rulemaking, the eorlier proposal is withdrawn.
| |
| Er1vironmenta l 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 proposed regulation.
| |
| | |
| Paperwurk Reduction Act Statement This fi.nal 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.) *
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| * Regulatory Analysis The revisions to the Commission's Rules of Practice in 10 CFR Part 2 improve the effectiveness and efficiency of NRC proceedings with due consideration for the rights of all participants. The chdnges to 10 CFR 2.714 require the proponent of a contention to submit ~ufficient factual information to demonstrate the existence of a genuine dispute with the dpplicant or the licensee or the NRC staff regarding a material issue of law or fact. This
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| - amendment ~nsures that the resources of all participants 1n NRC proceedings are focused on real issues and disputes among the parties and thus it is preferable to existing requirements. The revisions to 10 CFR 2.720 clarify existing practice that the staff may not be required: (1) to perform additional research or analytical work beyond that required to support its position, or (2) to explain why it did not use alternative data, assumptions, or analyses in its reviews. Codification of this requirement is preferable to relying on existing case law because it conserves resources that would otherwise have to be expended in opposing such discovery requests. The final rule's provisions in 10 CFR 2.743 on cross-examination plans require a party to obtain the permiss1on of the presiding offiter in order to conduct
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| | |
| cross-examination and Lar the presiding officer from considering any such request unless it is accompanied by a plan containing specific information about the nature and purpose of the proposed line of questioning. While the use of cross-examination plans could have been left as a matter of discretion for the presiding officer, the benefits from the use of such plans, i.e., more focused and controlled hearings, favor making use of such plans standard
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| * practic~ in NRC proceedings. The revision of 10 CFR 2.749 permits the filing of motions for sulllllary disposition at any time during a proceeding. The current practice leaves the timing for filing of such motions wholly within the discretion of the presiding officer. The final rule is preferable to continuing the present practice because making it explicit that summar; disposition motions may be filed at any time during the proceeding encourages the use of such procedures whenever an issue can be disposed of without a hearing *
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| * Since November 1981 a number of alternative changes to improve the hearing process have been evaluated by the Regulatory Retorm Task Force, the Senior Advisory Group (NRC personnel), the Ad Hoc Committee for the Review of Nuclear Reactor Licensing Reform Proposals (non-NRC persons with experience in the licensing process) and through the Request for Public Co1m1ent on Regulatory Reform Proposal published in the Federal Register on April 12, 1984 (49 FR 14698). This final rule improves the efficiency and effectiveness of NRC's hearing process while maintaining due regard for the rights of affected parties and thus is the preferred alternative. This rule does not have a significant impact on State and local governments and geographical regions,
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| | |
| public health and safety, or the environment; nor doe~ it represent substantial costs to licensees, the NRC, or other Federal agencies. This constitutes the regulatory analysis for this rule.
| |
| Regulatory Flexibility Certification This final rule does not have a significant eco~omic impact upon a substantial number of small entities. The amendments modify the Corm,ission 1 s rules of practice and procedure. Mo~t entities seeking or holding construction permits or Commissiot, licenses that would be subject to thE revised provisions woula not fall within the definition of small businesses found iri section 34 of the Small Business Act, 15 U.S.C. 632, in the Small Business Size Stanaards set out in regulations issued by the Small Business Administration at 13 CFR Part 121, or in the NRC 1 s size standards published December 9, 1985 (50 FR 50241).
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| Although intervenors subject to the provisions likely would fall within the pertinent Small Business Act definition, the impact on intervenors or potential intervenors will be neutral. While intervenors or potential intervenors will have to meet a higher threshold to gain admission to NRC proceedings and, thereby incur some additional econon1ic costs in preparing requests for hearing or requests to intervene, these costs should be offset by a reduction in intervenors 1 costs once the hearing corrrnences because information developed to support admission to the proceeding will be used during the conduct of the proceeding. Thus, in accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), the NRC hereby certiftes that
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| this rule does not have a significant economic impact upon a substantial number of small entities.
| |
| Backfit Analysis This final rule does not modify or add to systems, structures, components, or design of a facility; the desi.gn approval or manufacturing license for a facility; or the procedures or orgar1ization required to design, coristruct, or operate a facility. Accordingly, no backfit ar10lysis pursuant to 10 CFR 50.109(c) is required for this final rule.
| |
| List of Subjects Administrativ~ practice and procedure, Antitrust, Byproduct material, Classified information, Environmental protection, Nuclear materials, Nuclear power pldnts 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. 553, the Nuclear Regulatory Commission is adopting the following amendments to 10 CFR Part 2.
| |
| PART 2--RULES OF PRACTICE FOR DOMESTIC LICENSINS PROCEEDINGS
| |
| : 1. lht authority citation fur Part 2 continues to read as follows:
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| AUTHORITY: Secs. 161, 181, 68 Stat. 948, 953, as amended (42 U.S.C.
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| 2201, 2231); sec. 191, as amended, Pub. L. 87-615, 76 Stat. 409 (42 U.S.C.
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| 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. 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.
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| - 186, 234, 68 Stat. 955, 83 Stat. 444, as amended (42 U.S.C. 2236, 2282); sec.
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| 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 issuea 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). Settion 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 issuea under sec. 189, 68 Stat. 955 (42 U.S.C. 2239); sec. 134, Pub. L.
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| | |
| 97-425, 96 Stat. 2230 (42 U.S.C. 10154). Subpart L also issued under sec.
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| 189, 68 Stat. 955 (42 U.S.C. 2239). Appendix A also issued under sec. 6, Pub.
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| L. 91-560, 84 Stat. 1473 (42 U.S.C. 2135). Appendix B also issued under sec.
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| 10, Pub. L. 99-240, 99 Stat. 1842 (42 U.S.C. 2021b et seq.).
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| : 2. In§ 2.714, paragraphs (e) through (h) are redesignated as paragraphs (f) through (i). In paragraphs (a) and (g) of§ 2.714, the words "paragraph (d) of this section'' which appear in the fourth senttnce of paragraph (a)(l), in the sin~le sentence in paragraph (a)(2) and in the single sentence in paragraph (g) dre revised to read "paragraph (d)(l) of this section. 11 Paragraphs (b), (c), and (a) of§ 2.714 are also revised and a new paragraph (e) 1s added to read as follows:
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| 2.714 Intervention.
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| (b)(l) Not later than fifteen (15) days prior to the holding of the special prehearing conference pursuant to§ 2.751a, or if no special prehearing conference is held, fifteen (15) days prior to the holding of the first prehearing conference, the petitioner shall file a supplement to his or her petition to intervene that must include a list of the contentions which petitioner seeks to have litigated in the hearing. A petitioner who fails to file a supplement that satisfies the requirements of paragraph (b)(2) of this section with respect to at least one contention will not be permitted to participate as a party. Additional time for filing the supplement may be
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| granted based upon a balanc1ng of the factors in paragraph (a)(l) of this section.
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| (2) Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner shall provide the following information with respect to each contention:
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| (i) A brief explanation of the bases of the contention.
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| (ii) A concise statement of the alleged facts or expert opinion which
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| ~upport the contention ano on which the petitioner intends to rely in proving the contention at the hearing, together with references to those specific sources and documents of which the petitioner is aware and on which the p~titioner intends to rely to establish those fact~ or expert opinion.
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| (iii) Sufficient information (which may include information pursuant to paragraphs (b)(2)(i) and (ii) of this section) to show that a genuine dispute exists with the ~pplicant on o material issue of law or fact. This showing must include referfnces to the spEcific portions of the application (including the applicant's environmental report and safety report) that the petitioner disputes and the supporting reasons for each dispute, or, if tht petitioner believes that the application fails to contain infornIBtion on a relevant matter as requir~d by law, the identification of each failure and the supporting reasons for the petitioner's belief. On issues arising under the National Environmental Policy Act, the petitioner shall file contentions based on the applicant's ~nvironmentdl report. The petitioner can amend those contentions or file new contentions if there are data or conclu~ions in the NRC draft or final environmental impact statement, environmentai assessment,
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| or any supplements relating thereto, that differ significantly from the data or conclusion~ in the applicant's document.
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| (c) Any party to a proceeding llldY file an answer to a petition for leave to intervene or a supplement thereto within ten (10) days after service of the petition or supplement, with particular attention to the factors set forth in paragraph (d)(l) cf this section. The staff may file such an answer within fift~en (15) days after service of the petition or supplement.
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| (d) The Cor1111ission, the presiding officer, or the Atomic Safety and Licensing Board designatea to rule on petitions to intervene and/or requests for hearing shall permit intervention, in any hearing on an application for a license to rce1ve and po5sess high-level radioactive waste at a geologic repository operations area, by the State in which such arEa is located and by any aftected Indian Tribe as defined in Part 60 of this chapter. In all other circumstance~, such ruling body or officer shall, in ruling on--
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| (1) A p~tition for leave to i~tervene or a request ford hearing, consider the following factors, among other things:
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| (i) The nature of the petitioner's right under the Act to be made a party to the proceeding.
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| (ii) The nature and extent of the petitioner's property, financial, or other interest in the proceeding.
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| (iii) The possible effect of any order that may be entered in the proceeding on the petitioner*~ interest.
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| (2) The admissibility of a contention, refuse to admit a contention if:
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| (i) The contention and supporting material fail to satisfy the requirements of paragraph (b)(2) of this section; or (ii) The contention, if proven, would be of no consequence 1n the proceeding because it would not entitle petitioner to relief.
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| (e) If the Commission or the presiding officer determines that any ot the
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| - admitted contentions constitute pure issues of law, those contentions must be decided on the basis of briefs or oral argument according to a schedule determined by the Commission or presiding officer.
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| : 3. In §2.740, paragraph (b)(l) is revised and a new paragraph (b)(3) is added to read as follows:
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| (b)(l) ln general. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the proceeding, whether it relates to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. Where any book, document or other tangible thing sought is reasonably available from another source, such as from the C011111ission 1 s Public Document Room or local Public Document Room, a sufficient response to an interrogatory involving such
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| materials would be the location, the title and a page reference to the relevant book, document or tangible thing. In a proceeding on an application for a cvnstruction permit or an operating license for a production or utilization facility, discovery shall begin only after the prehearing conference provided for in §2.751a and shall relate only to those matters in controversy which have been identified by the Coumissior, or the prE:siding
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| * officer in the prehearing order entered at the conclusion of that prehearing conference. In such a proc.eeaing, rio discovery ~hall be had after the btginning of the prehearing conference held pursuant to §2.752 except upon leav~ of the presiding officer upon good cause shown. It is not ground for objection that the information sought will be inadmissible at the hearing it the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
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| (b)(3) While interrogatories llldY seek to elicit factual information rtasonably related to a party's position in the proceeding, including data used, assumptions made, and analyses performed by the party, such interrogatories may not be addressed to, or be construed to require: (A)
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| Reasons for not using alternative data, assumptions, and analyses where the alternative data, assumptions, and analyses were not relied on in aeveloping the party's position; or (B) Performance ot aoditional research or analytical work beyond that which is needed to support the party's position on any particular matter.
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| : 4. In§ 2.743, paragraphs (a) and (b) dre revised to read as follows:
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| 2.743 Evidence.
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| (a} General. Every party to a proceeding shall have the right to present such ordl or documentary evidence and rebuttal evidence and to conduct, in accordance with an approved cross-examination plan that contains the informatiun specified in pardgraph (b}{2) of this sectio11 if so directed by the presiding offic~r, such cross-examination as may be required for full and true disclosure of the tacts.
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| (b){l) Testimony and cross-examination. The parties shall submit direct testimony of witn~sses in written form, unless otherwise orderea by the presiding officer on the basis of objections presented. In any proceeding in
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| * which advance written testimony is to be usEd, each party shall serve copies of its proposed written te~timony on each other party at least fifteen (15}
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| day~ in advance of the session of the hearing at which its testimony is to be presented. The presiaing officer may permit the introduction of written testimony not so served, either with the consent of all parties present or after they have had a reasonable opportunity to examine 1t. Written testimony must be incorporated into the transcript of the record as if read or, in the aiscretion of the presiding officer, may be offered and admitted in evidence as an exhibit.
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| l*
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| (2) The presiding officer may require a party seeking an opportunity to cross-examine to request permission to do so in accordance with a schedule established by the presiding officer. A request to conduct cross-examination shall be accompanied by a cross-examination plan that contains the following information:
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| (i) A brief description of the issue or issues on which cross-examination will be conducted; (ii) The objective to be achieved by cross-examination; and (iii) The proposed line of questions that may logically lead to achieving the objective of the cross-examination.
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| The cross-examination plan may be submitted only to the presiding officer and must be kept by the presiding officer in confidence until issuance of the initial d~cision on the issue being litigated. The presiding officer shall then provide each cross-examination plan to the Co1T111ission 1 s Secretary for
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| - inclusion in the official record of the proceeding.
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| (3) Paragraphs (b)(l) and (2) ot this section do not apply to proceedings under Subpart B of this part for modification, suspension, or revocation of a license or to proceedings for imposition of a civil penalty.
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| : 5. In§ 2.749, paragraph (a) is revised to read as follows:
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| 2.749 Authority of presiding officer to dispose of certain issues on the pleadings.
| |
| (a) Any party to a proceeding may n~ve, with or without supporting affidavits, for a decision by the presiding officer in that party's favor as
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| to all or any part of the matters involvea i11 the proceedirig. The moving party shall annex to the motion a separate, short, and concis~ statement of the mate*rial facts as to which the moving party contends that there is no genuine issue to be heard. Motions may be filed at any time. Any other party may serve an answer supporting or opposing the motion, with or without affidavits, within twenty (20) days after service of the motion. The party
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| * shall annex to any answer opposing the motion a separate, short, and concise statement of the material facts as to which it is contended ther~ exists a genuine issue to be heard. All material facts set forth i11 the statement required to be served by the moving party wi 11 be deemed to be admitted unless controve:rted by the statement requi rtd to be served by the oppos mg party.
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| The opposrng party may. within ten (10) days after service, respond in writing to new facts and arguments presented in any stdtement filed in support of the motion. No further supporting statements or responses thereto may be
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| * entertained. The presiding officer may dismiss sunm,arily or hold in abeyance motions fi1~d shortly before the hearing corrmences or during the hearing if the other parti~s or the presiding officer would be required to divert substantial resources from the hearing in order to respond adequately to the motion and thereby extend the proceeding.
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| : 6. In §2.754, paragraph (c) is revised to read as follows:
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| §2.754 Proposed findings and conclusions.
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| * (c) Proposed findings of fact must be clearly and concisely set forth in numbertc paragraphs and must be confined to the material issues of fact presented on th~ record, with exact citations to the transcript ot recora and exhibits in support of each proposea finaing. Proposed conclusions of law must be set forth in numbered paragraphs as to all material issues of law or discr~tion presented on the record. An intervenor 1 s proposed findings of tact and conclusions of law must b~ confined to issues which that party placed in controversy or sought to place in controversy ,n the proceeding.
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| : 7. In §2.762, paragraph (d) is rfvised to read as follows:
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| §2.762 Appeals to the CorrJTiission from initial aec1sions.
| |
| (d) Brief Content. A brief in excess of ten (10) pages must contain a table of contents, with page references, and a table of cases (alphabetically arranged), statutes, regulations, and other authorities cited, with references to the pages of the brief where they are cited.
| |
| | |
| (1) An appellant's brief must clearly identify the errors of fact or law that are the subject of the appeal. An intervenor-appellant's brief must be confined to issues which the intervenor-appellant placed in controversy or sought to place in controversy in the proceeding. For each issue appealed, the precise portion of the record relied upon in support of the assertion of error must also be provided.
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| * (2) Each responsive brief must contain a reference to the precise portion of th: recora which supports each factual assertion made.
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| Dated at Rockville, Maryland, thisl..i:l day of A-vy.1989.
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| For the Nuclear Regulatory ColllTlission.
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| JOCKET NUMBER p // C)i 2RQPQ3EDIWIJi -1J0 0!$1 C~I F£ j,13~sJ :)OLK[ Tl('
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| Docketing & Service Branch '.JSN!<C Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 "87 APR -6 P5 :56 DOCKET/fa 50-443/50-4440L
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| | |
| ==Dear . Sir:==
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| | |
| This letter concerns the proposed rule changes in licensing procedures for nuclear power plants. It is clear that these proposed changes are designed to get the public out of the licensing process and to speed up licensing of nuclear power plants in the United States, this democratic country. We are aware that these proposals would:
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| : 1. Raise admissions criteria for contentions.
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| : 2. Restrict use of discovery against NRC staff.
| |
| : 3. Restrict use of cross-examination during hearings.
| |
| : 4. Allow Summary Disposition of contentions anytime during the licensing proceedings .
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| : 5. Limit the scope of issues that could be appealed.
| |
| All these proposals minimize the role and effect of intervenors during licensing proceedings.
| |
| Raising admissions criteria means the intervenor basically must prove his case in advance. As the rules are now, intervenors can hardly get NRC staff reports; comments on license applications are generally not available.
| |
| This proposal would keep safety information from being brought forward to protect *the public.
| |
| By restricting the use of discovery against the NRC staff, the public would have to take the NRC at its word. Under current law, the NRC staff can be forced to justify its conclusions.
| |
| Restricting the use of cross-examination means that intervenors would have to obtain special permission from the hearing judge in order to cross-examine witnesses. Face to face confrontation is the people's tool for -
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| getting at facts behind an applicant's claims.
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| Allowing Summary Disposition at anytime is a blatant disregard for public input. Potentially,all of an intervenors contentions could be dismissed even before any hearing took place.
| |
| Finally, limiting the scope of issues that could be appealed prevents -
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| intervenors with interests in another party's contentions from contributing -
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| to the hearing process.
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| Intervenors are voices of concern for public safety, a matter which the NRC continues to disregard.
| |
| We oppose these rule changes for the harm they do to public participation.
| |
| Does the NRC wish to be autonomous? If so, they will surely be held accountable when safety measures prove insufficient in American nuclear power plants.
| |
| * Yours truly, E1(.,.<11 mf~
| |
| ~/i?AL ff_, ..Spn ',v..3 -ZSt-J
| |
| .N.G<N ioi-, f IN' f- MA-Atk now Iedged by card ..~:~..~ .3..1:!7 *Tl!l!IIJ
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| / I I U. s. NU CLEAR WGlJLAT;;RY C0, 1\JllSSION CH OFF D
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| Postmark D ,
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| Co; 1es Add'
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| ~pe
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| 00 NUV 19 J\l J :S 4 Mrct. Edward W. Monn 23 Hilltop Road Sudburl:J, M ~ 01776
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| ~/t,/(1/~
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| Docketing & Service Branch Secretary of the Corrnnission
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| * U.S. Nuclear Regulatory Commission Washington, D.C. 20555 DOCKET# 50-443/50-4440L
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| .86 NOV 17 P12 :23
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| ==Dear Sir:==
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| This letter concerns the proposed rule changes in licensing procedures for nuclear power plants. It is clear that these proposed changes are designed to get the public out of the licensing process and to speed up licensing of nuclear power plants in the United States, this democratic country. We are aware that these proposals would:
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| Raise admissions criteria for contentions .
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| Restrict use of discovery against NRC staff.
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| Restrict use of cross-examination during hearings.
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| Allow Summary~~~~ of cs t au Hun s anytime during the lic ensing proceedi-rrg-s:--
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| Limit the scope of issues that could be appea l ed .
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| All these proposals minimize the rol e and effect of intervenors during licensing proceedings.
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| Raising admissions criteria means the intervenor basically must prove his case in advance. As the rules are now, intervenors ca n hardly get NRC staff repor-ts; comments on license arplications are ge n e rally not available.
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| This proposal would keep safety information from being brought forward to protect the public.
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| By restricting the use of discovery a gainst the NRC staff, the public would have to take the NRC at its word. Under curren t law, the NRC staff can be forced to justify its conclusions.
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| Restricting the use of cross - examination means that intervenors would have to obtain special permission from the hearing jud ge in order to cros s-examine witnesses. Face to face confrontation is the people 's tool fo r getting a t facts behind an app li cant 's claims.
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| Allowing Summary Disposition at anytime is a blatant disregard for public input. Potentially,a ll of an intervenors contentions could be di smissed even before any hearing took place.
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| Finally, limiting the scope of issues that could be app ealed prevents intervenors with interests in another party's contentions from contributing to the h ea ring process.
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| c:>>
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| Intervenors are voices of concern for public safety, a matter which I the NRC continues to disregard. o We oppose these rule changes for the harm they do to public participation. ~
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| Does the NRC wish to be autonomous? If so, they will sure ly be held accountable when safety measures prove insufficient in American nuclear power plants.
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| * Yours
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| U. S, NUCLEAR REGULATORY COMM ISSION.
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| OOCK t:TI NG & SERVICE BRANCH OHICE OF T HE SEC ETARY OF THE COM ~ ,-.,' iJ l'l Docuc'"' eat !:: ./ ; s Postmark o~ e Co, IC. :i I~~ '-' *j Z __,8,"-----
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| -/-
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| Ad d I Co,J s, _- '¥---1
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| J0LKE1l'
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| * USNPC
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| *86 NOV 12 P4 :39 October 22. 1986 Judith Polich 18 Pine Street Newburyport, MA 01950 Docketing & Service Branch Secretary of the Commission US Nuclear Re gulatory Commission Washington, DC 20555
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| - Docket #50-443/50-444DL
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| ==Dear Sir:==
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| Re: Proposed Licensing Procedures It seems evident that your proposed rule changes are designed to inhibit public participation and thus to speed up the licensing procedure.
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| Clearly the industry does not address the public safety issues. Apparently such issues were not addressed in the Soviet Union either or Chernoboyl might not have occurred. This, however, is a democratic nation. Public participation is the back bone of a strong democracy. Any rule changes that in any way limits public participation must be withdrawn including: raising admissions criteria, restricting the use of discovery against NRC staff, restricting cross examination and limiting the scope of appealable issues.
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| Ve~ ?J-----
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| J u d~ t h Po l i c h
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| U. f. HfJ(iJAR DOCKET !'
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| r:,r.r* 1
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| ~
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| T"RYcOMMI SSION
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| * "('.E SECT ION OFF ' ':TARY 0 ION r . . cs P* ~tmarlc es r ///;d I
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| 'I ,-</
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| ~1~..., -ial o: .,ut
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| 00lK [fl ~:
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| 'JS NRC November 2 , l1Jl6 t()V -5 Pl2 :28 me Honorab..: e E}tward M. Kennedy J ohn F* Kennedy Felera , BuL. J.i ng
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| ~o* - 4<.yJ aos ton , r'. a . 022CJ Re a :iuc l ear Reg-..1 la tory ~.:oiamis;:, j on Jear ;;ena to r cennedy, r he pUblic ha.s .i..ost ail res pect and .f a i+..h in the Nae a.s a regu _ator; agency o *er s ee i c; the comae.rcW. uuc -ea.r_power i.ndustq.
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| The . .: atest i ll a. .1.ong seri e s of concw:ns i n*.*--l ve three area.... ,
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| : l. Pro:r>o-Je<i ru.1.e changet::. that would L l ow i ncreas ed radi at i on
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| -"-> . :.. set. f :-ir e.x{,'Osure to workers insi de the j,Jla.nts , the
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| ;ub.d c oui..:;;ide aai the en-ri.ronaent a..!.laround..
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| : 2. Pro!A)sed ru l e changes that would drasti~ lf reduce public 1:a.-rt. i -: i ~t i on 1n ::. icensing heari ngs.
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| J. 1 ssua.n.ce of .J.OW-:power U cense:.5 before sa.tety factors and evacuation i..;..,-1e::. are re ~ol ved.
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| congress a l one Cll.O curb the powers c.f the NRG, vhi ch as set u_p pr aa.ri . y to o ersee the safety and heal th ,:,.f the~bl ic in recpect to tho operat .: on of nuc~M.r p.L ants, not ju.i.>t :to license them~ r t L
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| * Mme the IrR~ was pi.it bl.ck ~ t.he r i ght track, or e ~::;e J. .:..,.:.;vl ve t h e agen7.
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| ,n the caRe of .the two controversi a .i. p...at~ in *Ha.ssachu~etts , i t i:.:;
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| ~xtreme.:.y urgent that independent stud i es be as.de of the sa.tety of the i r cons truct i on before any licenses are issued to ope:ra.te them. The publLc wL .:.. -ne-ver ,-ccePt an NRC or i ndu s try ~ s o in regards to the :: r safety.
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| Pl ea~e do whatever you can to bring about a rer6m ~-u, agency
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| . . ,i,'~) '"I*
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| and t,o .
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| hal t any further nucl ear ;x,-..:er plan t .:;_ icen .:-. ing unt ,, . ~,all safety .
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| ~
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| factors are res o.1.ved, and if they cannot. be, no be it.
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| 1ha,nk you for your continued support of' vtta.l.
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| Sincere.y, -*,.
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| .~ D 0 ec 6-~
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| Natal'e a G* .Brown eopy toa _,,,.--
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| NUc.lear gegul atoiy COJIIJllission V
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| ~
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| ::m"':'PR-~
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| UNITEDSTATES ,,5/ ~41{;5) f=°,
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| NUCLEAR REGULATORY CO MISSION WASHINGTON, D . C. 20555 DOCKETED USNRC
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| '86 OCT 31 P4 :22 OFF ICT .- - *--
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| OOCI' ' ; ..
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| Ms. Kay DeKuiper Office of the Honorable Carl Levin United States Senate Washington, D.C. 20510
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| ==Dear Ms. DeKuiper:==
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| I have been asked to respond to Senator Levin's letter to Carlton Kammerer dated October 14, 1986. Appended to Senator Levin's letter were comments submitted to the NRC by the Monroe County Board of Commissioners opposing several proposed rules that the NRC had sought public comment on.
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| Senator Levin sought additional information on the NRC proposals.
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| In 1981, the NRC established a Regulatory Reform Task Force to review the process for licensing nuclear reactors and to make recommendations on how the process could be improved.
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| After reviewing its recommendations, the Commission on July 3, 1986 published in the Federal Register, the enclosed notice inviting public comment on several proposed changes to the agency's rules governing public hearings. The notice describes the proposed changes in detail and provides the Commission's rationale for believing such changes may be warranted. The period for submitting comments expired on October 17, 1986. After carefully evaluating the public comments, including those submitted by the Monroe County Board of Commissioners, the Commission will then consider whether to issue a final rule.
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| Sin~J;l l!dliam c . Parler General Counsel Enclosure : As stated
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| *I
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| *Federal Register / Vol. 51, No. 128 / Tbul'!lday, July 3, 1986 / Proposed Rules 24365 Subpart A-Servi ng or Real Estate aettled wtder th Securtty for Farm r Program Loan1 . B of Part 195e and Certain Not nly Cues , 24. Section 1
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| , ded b * , . revbliig the In
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| %2. Section 1965 llmen . Y . * . paragraph {f) to revising paragrap to read 81 ~ _ .
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| * follows: . * * :*- 1*1NU1 ,*
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| r**.. ,*' ~~ . *
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| * 11115.24 (a) Sale *or real opeity on which improvement, we made with note-only FmHA funds. ny loan evidenced only by an unaecu d note will be collected by volu ry means at the time of the aale of the perty, If possible. If collection 11 not p sible, the Joan may be a11umed by th urchaaer of the property on the te I or the note if the a11umptlon Is det lned to be In the FmHA'1 best flna ial interest. If collection or 11s11u lion cannot be *
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| . effected. conalde Ion should be given to ettling the ac nt in accordance with Subpart 8 of rt 1958 of this . .:
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| * chapter, If it la ell le, obtainlnl .
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| judgment. or class ying It a col1ection-
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| * only. In case of a J dgment 1ale. the
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| * State Director wl the advice of 0GC and the US. Atto y. will authorize employee lo atten the sale and if appropriate. enter bid on behalf of the Government unde ubpart A of_Part *
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| * an l
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| ( * . .
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| 1955 of lhb chapt
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| .e
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| 2'366 Federal. Register / Vol. 51. No. 128 I Thuraday, July 3. 1986 / Prop01ed Rule Draft Report I lo the Conunluion received. In addition, *hall be decided OD th ... or briefs containlll8 a 111unber of these ,ropoaal1. l10 considered tbe ae and/a, oral a,eamenL ** * ..
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| Inclusion of* propo,al in the Draft refonn propoeal1 of Section 1888. aftbe .l\tOcnic Enerv Report lndlc ted tha&.a comemua of the Aaael1llne which re ~cussed in Acl of 1954. a1 amende4, provides tut Task Force membera believed that greater detail ii,fro. Onithe ball ef for apectfied types of p-,xeedings :-the further evaluaUon or die proposal wu
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| * these comment, and tding Into account
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| * Commi11ion shall grant;a hearing upon appropriate. It did not lndk*le that the . the extensive study and analyal1
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| * the requeat of any peM18n whose intere11 proposal necet1sarily~mmanded the . accorded the propo1Bt.fby the
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| * ma)' be affected by the proceeding. and support of a majority oFTalk Force membe~emben frequently held Regulatory Refonn T** FOfQ. the -
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| Senior Advisory Group,*and the Ad Hoc shall admit any such penon u a party to 1uch proceedins-" The Commluion'1 1trongly dlffering views on the merits of Committee, the Commlulon Identified regulation, implementing thia pro\'islon individual propoaala. five propoNl1 wbich merit continued require thaL once a petitioner ia The Draft Report wa1 reviewed conaideratioo for pouiltle Inclusion in admitted to the proceeclng, he or 1he internally by II Senior AdvilOT)' Group, Subpart G of the Commlulon'a Rule of must auppJement the petition with a li1t composed of NRC personnel. and by an Practlce. These propoaals, which would of 00ntenU01U1 and a alatement or the Ad Hoc Committee for the Renew of affect 112.714. Z.720. 2.l43, V49. :Z.754
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| * basi1 for each contenU011 with Nuclear Reactor Llcensing Reform - and 2.782 or those rules, relate lo the * - reasonable apeciflcity. Stt 1DCFR Proposals. The latter group. eatabliabed admission of contentions: dlacovery
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| * 2.714(b). In order lo be permitted to by the Comml111lon, was compoaed of against NRC *taff: use of croa- participate u a party. an Intervenor non-NRC peraona with experience mthe . examination plans: timing oF motions for must advance at lea1t ohe contention Commission's U~lng process and summary disposition: and limitallom on that satiafies these requlrementa. The procedures. Members oI each group held matter, and iuues which may be list of contentiom 11 intended lo inform diversenl views on the merita of included In lntervenora' proposed .
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| * the parties and the presldlns officer of
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| * particular proposals, and 10 adviaed the findings of fcL conclualons oI law, or the i11&ues whlcll the lmerveoor aeeb to
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| =
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| Commission. appellate briefs. F.ach of the proposed litigate. In practice. thla requirement -
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| On November 17, 1983, the - - *
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| * changM Is described more fully in the may be met by copying contention, &om Commiaalon diacuued the - ~ Following aection-by-sectioo an lfsia;
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| * another proceeding Involving another administrative ~ for the Section-by-Secllon Analpis of RllTF reactor. Thua. an interv,nor may not procen at II pu lie meeting. Bued on~ Proposal, . . J
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| * fully understand a cootantion and the Information before iL the * *,. , , fri\"OIO\Ja contenUOJU mtY be admitted.
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| Commission decided lo solicit public IntervenUon (10 CPR Z.714) Admitslon In addition, the contentwm may not comment on the entire package of of Conteolione-llem 2) 1 * * * * *
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| * adequately identify .the wuea that the _
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| dmloi1trallve proposals before
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| * The proposed ame~ents to t Z.7H intervenor aeek1 to litigate.
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| deciding on
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| * particular course of action would raise the lhrethold forthe
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| * Under current practice, the presiding with respect to any or all of the admi111lon of contentions enenliaDy to - officer makes DO inquiry into the merita
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| - individual proposals. On April 12. 1984. require the proponent o, the contention of a contention in ruling on iu the Commwion published a notice in to supply Information s~owing the admluiblllty. An lnterv,mor la under no the Federal Register, 49 FR 14698-14715.
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| * existence of a genuine dispute with the obligation to demonstrate the existence April 12, 1984, Inviting the public to applicanl or the NRC ti-ff on an issue of of some Factual .Appor1 'for the
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| * submit comments by June 11, 1984 on the fact. The 1howing must include contention a1 -a precondition to ifa
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| * proposals. * * .* * * *
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| * references to the specl!portlons of the acceptance. In addition. an intervenor The Cornmlulon received twenty-nine application which are aputed. The need not ahow that* senulne diapute of letters ttf CQ11UDent in response to the * .contention must be sup rtecl by-a
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| * fact exlats with the applicant or the NRC Federal Register notice of April 1%, 1984. conciee statement oft~ alleged facts or staff. These obligations oo not arite The commentera included nine nuclear upert opinion. taseth~ with apecific until later in the proceeding, either in utilities or their counseL nine ' aourcea and documents of which tbe opposition to* motion ~r summary intervenor& or their counseL four atatea..
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| * petitioner is aware, w:iwill be relied disposition or t the evipentiary hearing.
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| three Individuals, n architect on to establish the fa or expert _ By increasing the threshold for the engineering firm. a nuclear * * ,, - , - opinion. The purpose o Increased _ admi111ion of cosatentioiJa, the proposed manufacturer, an indUBtry group, and an threshold, which ls c atent with .. amendment would sha,rpen the iuues J.
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| * energy newsletter. Copiea of aH * *
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| * Supreme Court precedent,' ta to sharpen in dispute throughout t}!e proceeding comments received have been placed in the issues In dispute throughout the
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| * _ and ensure that the reaourcea of all the Commission's Public Document prehearing and hearing phaaee and to* parties are not apent o11itig~ting * *.
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| Room al 1717 H Street NW.. ensure that the resources of all parties frlvolOUI contentiona. *
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| * Washington. OC. 20555. where they are are focused on real rather than -. *- * *
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| * Under the proposed rple, 11 contention avallaMe for Inspection and for copying Imaginary i88ues. . .. will be admitted only if1he petitioner for a fee. . . - .
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| * A new provision has been added. _ can establish that a se"11ne dispute * .
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| At public meetings held December U. proposed § 2.714[d)(2)(1v), which would
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| * exiata on a material w9e of law, fact. or 1984 and January 9. 1985. the_ _- * *
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| * provide that a contention raising only an policy between petitio~r and the--~-" -
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| * Commluion considered~ suggested
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| * Issue of law wlQ not be"admJtted for applicant (or the NRC s)aff on. _-; .- -
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| prop'?sals lo change the lice~ * . resolution in an evidentlary hearing_ but environmental lnues). ~ decldini <* -*--:
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| process. as set out in the April 12. 1984 . . * * * - ..
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| * __:_-; .... , _ whether a genuine disp,ate exists. the.~ -
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| noUce. In the light or the' commen~. 'I.lo ucb caae.tlM! IIHI IUIIOOff ,.,_ lo the presiding officer shan ci!termlne ' -. -~- .*
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| - - ~ - - * ,: - -~.;::. ~-,,- -* .-.,. . DUmberoftuaaeadlMAI lilltheautollbe ***** ** whether the infonnatiod presented is.*
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| * The Dnifl Report i:oataiaad propmed rule . *
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| * prop<>>ed rule. . .- , : . .* aufflcient to prompt rea1wnable mind, to duin,e C011cemms backfllllrc- the huru11 procaa. *&eeo.tle. v.-Poc,T,c u,ol Foundollon. MS U.S inquire further with ~rd to the leplll'llllon of fttncllont/a pom coannllllialllena. . 1118. %14 (19t!O) Idling Wei~*- HptMJ#I.
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| and partlap.11Hn1 of the NRC alaU In lnlllal ~ Wwcott GIid lll#Uli,w. I/IC. 41! UA llllUIZD-CI ' va lidi ty O r the CO;Dtenntid1*n. Thi S la th e .
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| proceedinp.11 alao llldaded leaJlaHvefN'OPIINh * ~19'JII * .: -* ** * * :---*- * * -:-.' , - , * - 1tandard articulated lmCo6ile Y * .Pucif,c
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| Federal Register f Vol. It. No. 121 f Thursday, fufy S. 1988 f Proposed Rules 24367 legal Foundation. 445 U.S. 1N (1980) may be reqllired to perform - any G'Oft4Uffllnallon actuUy
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| ( and other federal cow1 decillona. See.
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| * e.g., Vermont .Yankee NuaJsar Power .
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| Corp. ** NRC. US U.S.119 (1178):
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| ~nwesltgatlon lo delenntne what Information It acluaUy poet * **1** -* . -
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| Pen,.yfvimia l'owtJr and U,,,,C.. :*
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| condocted Is respomlYe and productive.
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| By ulh,s the croaa.umlnatfon plan a, or
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| * method control. the value of croa-Connecticul Bankers Aa'n w. Boardqf (Susquehanna Steam Electric Station, examina lion lboald be enbaoced and Governors. C1 F.2d ffi (D.C. Cir.1980):
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| * Unlt.1 and IJ, ALAB-813. 1Z NRC 317, the IUUllber of cluttentd trial l'8COl'dt lndepeDdeat BollkMs .tu 'n "* Board of
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| * 334 {1980). See aln Fed. IL Cw. P.13 {c). produced as a reaull ol' unfoalNd Goi*emors. 511 P.Jd 1206 (D.C. Cir. awst. The propoeal nne would codify thi1 queatlonlng thoutd be ll8nfBcantly
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| * * *
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| * limltatton with rnpect to inlenoploriel reduced.
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| Subpoenas 110 CFR 2.120) (Diacovery- directed to the ftaff. It would make clear Against NRC Sll!ff-llem 3) that 1uch aterrotatoriea may DOC - In determlnlJii whether lo pe1llll1 Under lhe.procedurea in require the .taff either to perf'onn cron-examJna11on on a particular lnue.
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| I 2.720(h)(2J(li). partiet may aubmt~ * - addlUonal reeeatcb or analytical won the pruldtn, ofJlcer ahoulcf conalder
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| -.fnlerrogalories to NRC penoanel lo beyond that needed to support lhe whether lhe cro11-examln.tloll plan elicit factlMII information reuooably 1tarr1 poalUon oa any partfculaT matter contain the required Information and related lo the NRC etaff'a posjUon at the or to explain why the ataff did DOt ue whether the requuted crou-he11ring. The 1taH 6- not required to alternative data, anumptions, or examlnaUon b DBCeU8J')' for a full and answer those inlerrogaloriea. bowever, analyses In Its reviews. It would provide tJUe d1ecloaure of the facts. Thia ii the unJeu the presiding office finds that the added 8S9Ul1ince that scarce staff . - standard et rortb in aection ?(c) of the a111wer, are necessary lo II proper . resource would not be expended Admlnlttr11Uwe Procedure Act. I U.S.C.
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| decision in the proceeding and that they unnecessarily al the pretrial stage of the 556( d). and exit Ii DI V43(a). 5tJe f . are not reasonably obtainable Crom any hearing on matten not directly pertinent SiJacoast Anti-Pollution League v.
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| other IOW'C8. In many INtancea lhe NRC to the slafr1 poalUon in the bearing.
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| * Co6'/e. 572 F.2d 872 (tal Cir.). cert.
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| 1taft voluntarly and u a matter of Despite the proposed amendment. It .. - denied, '39 U.S. 1Z4 (1978): Northern discretion. provides written amwera lo - would. of course, still be permlnfble for Slats.~ Co. (Prairie bland Nuclear Interrogatories without IDIUtlng that the a party to argue at the hearing that the - Generating Plant. Units 1 and 2), ~
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| party requesting the iBFormatioD comply 1taff should performed edditional . - .244. 8 AEC 857, 187 n. 18 (t97f), .
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| with lhe procedures apeclfied 1n lhla . 1tlldlet or reked on alternative data.
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| * l"IICOll6ideratian denied. ALAPrU2. I section. Thia can nve time, particularly IF the lnterrogatorlea are such that lhe E\idence'(10 CFR.2.743) Crou- AEC 1175. offd, W-~1. 1 NRC 1 1taIT would probably be requlred by lhe Examinaliop Plan-Item f) .. (1975}.
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| preslalng officer to answer lhem. In . The proposed amendments to I ua Under exlating NRC practtce. crou*
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| examination 1D11}' not be med to expand other instances, however, the 1taff' hu would require a party to a proceeding lo objected to interrogatories on varlout obtain the permlaalon of the presiding c the number or scope of conletted isauet.
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| grounds and lhe presiding officer hat - officer in order lo conduct cron- Prairie Island. .upra, B AEC at 887. The not required the*1taff to re1pond. examination and would bar the Commiufon'* ru1ea authorize the Although the staff mey ultimately _
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| * presiding officer from considerina any - .* prelidlng officer to regulate the course prevail in such Instances. staff resource request to crou-examine un1ea ihe -of the bearing and to take DeCeaaJy and must be expended In preparing and requeat was accompanled by a a"ON- proper meumea to prevent defending objections to lhe reques1. The examination plan containinR apecified argumentative. npelitioUI. or proposed rule would conserve slaff . information. As proposed. llie required cumulative crou-examination. 10 CFR resources by codifying two.existing cross-examination plan wowd include a 2.718, 2.W(c). The propoeed rule is grounds for obiectlon to intem,gatories brief description of &he lnue or Indal *:- intended to formalize thia practice to directed to the ataff. This would enable on which the crosa-examinatioa would naist lhe presiding officer 1n ennrlng lhe staff simply to cite the provision of be conducted. the objecUve to be
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| * that appropriate llmllatiODI on the use the rule In objecting lo the requesL achlend by croea-eiamlnation. and a .
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| Under exilling NRC practice. it is n proposed line of quealiona which ol croas-examlDation are obaened.
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| adequate reaponse to state' dun the logically may lead to achieving the Authority of Prea1dina Officer To lnfomuttion requeated Is available tn* objective of the crou-examination. Dispose of Certain Ufllel on the NRC public document l'001lll or in pubHc together wilh the po1tulated answers. - Pleadingi {10 CFR. Vfi) (Summary complia tiom and lo provide *,uffteient l\'liich might be reaonably anticipated. DispotHioo-ltem 5) information lo enable. a party lo locate - The crosa-examination plan would be the material requested. See. a.,~
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| * available only lo the presiding officer The propom! amendment to MetropolitoR Edison Co. (Three Mile and to the memben of the Board and . I 2.749{a) would permit moliont for
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| _) Island Nuclear Station. Unit No. 1). CU-79-8. -10 NRC 141, 147-48 (1979). Sud!
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| would be kept confidential until after lhe Licensing Board bad rendered its
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| * 1UD1mary dispoaitlon to.be filed at any time during lhe proceeding. lncludlna Information ii "reasonably available decision on the l11ue llligaled. In order . during the hearlng. Instead of requiring from any other 10urce" wlthln tbe
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| * lo en1ure a complete record on appeal such motlona to be filed well In advance meaning of 16 CFR 2.720(h)(2)(11) and. the proposed amendment. would *. *
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| * or the hearing and wlthin such llme u therefore. need not be provided. A requ.ire the presiding officer to include may be fixed by the preaiding officer. n sufficient answer lo 1uch a queation each crosH!xamlnatlon plan and any *
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| * provided in th~ existing rule. Thil *:
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| f would be the Htle, page reference. and order relating thereto in the record of
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| * change ia lntenaed to give lhe parties location of lhe relevant documenL , the proceeding certified Oft appeal. . .
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| '*
| |
| * In addlUoa. NRC cote law recognlzes ** In the opinion of the CommJaion. this m a ~ flex.lbilhy lo file .aucb motioM and to make It possible lo terminate that ilJn_ rupoodlng lo dltcovery proposed requ~I to aubmJI a cron- lltigaUon at any point durins the requesla. a partJ is l)O( required lo
| |
| * examination plan ahouJd aaaiat the - -.
| |
| * engase In extensive l n d e ~ prealding officer bolh In declcflaa .
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| * proceedins when U becomes apparent rcaelU'Ch. It need onJy reveal informatlon
| |
| * whether lo grant or deny a request for lbal a pnufne laue of rad la no longer in Ila poaseuion or control (although it croas-examinatlon and In auuring that * ~dlsputL ..
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| | |
| 24368 Federal Register I Vol. 51, No. 128 / Thlll'lday, July s. 1986 f Proposed. Rules Propoied Fi nd ings
| |
| * nd Conc;lukml (10 overall Interest In the PN>CNdJns ~ -penons to rue petitions within a Ume CFR 2.75-t) Appeal to the CommluJOll * -enture that public .heal_tb an4 Nfety-Ud
| |
| * priod that ha lJtde connection .wUh the From Initial DeciaioM (10 O'R Z.712) environmental val'"!' are protected. .: _ time frame lor the llecbion on the . )
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| (Limitations-Ile~ 0 Jad 7) ,. . . , .Each baa an obvlou lnlerett in fittns - *
| |
| * petffion. Second. tt require per,on who The propoaed amentlrnenu lo* .: *
| |
| * propoaed findings of fact.and ... * ; do pot have the requS.lle inlerut in the I 2.754(c) would JlmU a intervenor'* . c:oncl\lllom of law on moat, ff not alL * - . proceedilll to apend time. effort. ud *. .
| |
| nling11 of proposed finding of fact and . conh teal_ed luUM and In taking *ppeal, money drafting contention whk:h-lhat
| |
| * conclu1lon1 of law -to luun which that party actually placed 1n controverey or
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| :..!!t 1eyofflare *~verely affected ~y the penon would not be enlltled to
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| .,...... ln8 cer
| |
| * decllon. U lheae *.. : advance. Third. the framework ~ * *
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| * 10ught to place in *controveray iD the . , proposed amendments are adopted, - * .. - decJ1fon on the atanding of a penon to*
| |
| r;.~~,)~!J'w::U!t=:u frt1~~';: !me:'=:r!~ke-tb *
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| * luuH which an intervenor could ralae Intervene .illh portJona of prop'ond ftndlnp of fact. °'.'8 inte~anar to draft valid contentlont. _.
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| the ability of the putative*..
| |
| in an appellate brief. _* ,,:* , . * . *proposed conclusion, of law and ** Thi* accordlns lo Commitalonar
| |
| * Present NRC parctice permha*any*
| |
| * appellate brier. filed i n ~ 11 of Auelttne. le akla to 1hejudlclary party to file proposed findings of fact these eections of the ~1 on .
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| * detenninins that a litigant lack and conclu1lon1 of law on any ieue tn nslu * * ' -.landing lo proaecute a lawault by
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| .the proceeding, Including lnuea not .
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| * concludtns that the litigant doea not placed In controversy by that party, and 0. Propou)1 of Cornmfnloner have a merttorlou1 claim dnpite the to appeal ori all lauea whether or not AuelstiDe litigant'* dear interest In the outcome.*
| |
| those ieauea were raled by ~ party' The propoaali of the RRTF did not *
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| * Comml.aloner Auelattne'1 propoed
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| .. tiafy completely the concern, of all . . revielon to the intervention procen
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| * Commiaaioner.
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| own contentlona. Thia general principle
| |
| * fa subject to the limitation that a party the Cpmmi 11ioner . would separate the decielon oo atandins A mu1t have a dlecemible interest In the . Alael&tine wee particularly dfuatiiftod
| |
| * from the decision on the validity of W
| |
| * outcome of the particular luue beins , wilh the scope and direction of the . contentloria. By requtrlrtg a decillon on
| |
| - 'conaidered. 4 In practice, however lhe
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| * RRTF proposals. At the Januaey-9, t98S the Intervention petition prior to the
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| - . adjudicatory boards have not gen*~1y 7 meeting of the CommJaaion, . ming of contention,, Commluloner
| |
| * examined an intervenor'* ftllngt to . ** Conimluloner AuelUne 1ubmltted hl1 Aaselatine expectl to alleviate eome of determine whether the Intervenor . . . proposal, for Commisalon the problems with cunent NRC practice.
| |
| possesses lhe requisite Interest with consideration. The Commilelon agreed
| |
| * Since a deci1lon on landing would regard to a particular luue, 81 ,et forth * -to publish ~era! of his propoala for. . precede
| |
| * decision on the validity of a in lhe petition to intervene. In addition, comment and requeited the staff 10 draft contention, the proceu for drafting and fntervenon may have 1Uch broad. .
| |
| * notice of propoed rulemakitig that . filing contention alao would undergo
| |
| * 1eneralized intereall bt NRC * * : . incorporated CommJsaloner Auelatine' . revlalon; Another revlelon to the )
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| &;dings that an examination of their . Pl'OP0881s. . . * * . _. _.
| |
| * Intervention proceu would provide for a In light of this lJmitatfon would do - While the CommJBBion.requesla public ninety-day period to draft contentions.
| |
| little to reduce* the volume of fUinga that comment on CommJuioner Auel1tine'* At the end of that period and prior to .
| |
| lhe adjudicatory boards muet consider proposals for the purpoae of glvmg them discovery, the contentiona would have The purpose of lhe proposed cihange ii*
| |
| * further consideration, ~ Cominislion _ to ~ve an initial ecreenlng with to enaure lhat presiding offlcert1.Jid *
| |
| * does not neceuari)y endone In fu1l the . napect to their validity, * .
| |
| agency appellate tribunal ue able to diecuaalon of the propoaal1 that followa. A more rigarou tut of contentiona*
| |
| __focue on the di1puted ieauee*in 1he * *. ** .H commenter agree .or d.iaape with . ** would_ be undert:aken after ditcovery proceeding as presented and argiied 1,y* upecta of ~t ~ICUNlon. ~ can io *-. . was completed. At thi1 atage. the A the partiea with a primary lnterett-hi the note in their commenta. . . . :.
| |
| * _ presiding Qfficer would have lo . -
| |
| W . luue. The propoed change a1eq lhou1d -* "Commluioner Auehtlnes ,belleva
| |
| .
| |
| * ensure that these aame preiiding officera
| |
| * that hl1 propoub would improve the.- - .
| |
| * lnue of* material fact exiata with
| |
| * ~termlne whether;. not
| |
| * senume
| |
| * " a,nd appellate tribunal, are 1)01 ..-. * . * . efficiency ol the lk:ensins p ~ yet *: -rupect to each contantlon. H 1be . .
| |
| *
| |
| * Inundated by a multipHcity of *. *. ' .: . : provide for full public participation In_ * : -~~!ding ~cer fiDda that no INue extraneo~ filings from penons with .* _* that procee1. In contrut to ~ broad * *
| |
| * exi1ts. lben a bearing would not be held li~tle or no take in the reolution of a - changea auggeted by AAn', * : *
| |
| * on that specific lasue. .'* * . . .
| |
| - _. particular ilsue. The proponent of a
| |
| * Commisal~er Aaelltlne'.* propoeala ;_ In addition to thete c:bangi* **
| |
| *- _ . contention i, responsible for'maldng tta
| |
| * focua narrowly en intervention and Commlaaioner AuelUne would require can on the J11ue at the hearing a.ncf can . public participation in the licenalns *
| |
| * the Commiulon to publltb. prior. lo the therefore be expected to preaent and*** - ~ It ii CmJ:uniaaloner Aesel1tine'1 docketing of an application. a notice argue Ila case on the contention much*** -f:?liilon that l:iluilodmte changes to the that an application for a comtrucUon
| |
| . m~re persuasively than a party who** . wfervenllon proceu_would attain the.\..,. permit or operating license has been elecla to argue an laaue only in legal
| |
| * pis sought by RRTF and yet maintain .. tiled. In Commlasioner Asselstine'i
| |
| * papers filed after the evldentlary portion a satisfactory level of falmeu to all * *. _oplni_on t1d! \¥ 9utd ensme full eubllc
| |
| * of the bearing ii complfte4.. *. .. particfpanla and the public. * . . -. * . * * ~, . -: . , * ~ _ _) ...
| |
| The proposed amendmenta are not Current practice requires petition, for
| |
| * 1n 1be 01111tex1 of
| |
| * 1c1a1 * * * - * .- ~
| |
| * applicable to Uce~ appllcanla or to
| |
| * leave to intervene to be filed within * . detmntnatton ol a~-. =:8.!'::.! by NRC ataff. Ucenae applicantl have the time apecifled in the notice of bearing. ralina on the merit of the Htlplioa c:rea119 _;
| |
| burden of proof. The NRC lblff bu an This filing deadline la not related 1o the problem ar c:oas1111111ona1 JanlRcance. See Wortti
| |
| _ _ _ _ * .*: *,., *-.';***-:.,; ***,,. . . time at whJch a declilon on the petition =v.Seld/n.4Z2U.S.490.~ten). Whiletbe *
| |
| -1"WTT-,J __,,-
| |
| .* ~=- **.
| |
| .,_ *--~L-.:.. .,~ l'owe,-Q,. ~ .*lllaJld.
| |
| (Prairie ***. . . ii made. Jnlead. the UV\alll _._...,...,on *lo allow.:-
| |
| * ollllandlna11111p1111a1n 11111)' not Cl'Hle q ~ of 1oadmialstntlve
| |
| :. ~ )
| |
| Nuclaar Ceneratlna Plant. Unita and~ Al.AB-
| |
| * intervention la delaYe:d until content!~ * -1111111o111 dimension. the problem. unrthetea. _
| |
| 1 JM.IAECB57,l70a.H(1874):..-l'dttnltloe *. _have been Ried.. * ~-': *. :*:.- -: . .* . lnl1nlflcurt.Pilureto pply pproprillt.crtterlllln
| |
| * mni<<l. ALAB--ZU.
| |
| * AEC 1171. affrJ. arn-1. s . * -comml11loner Aaaelitine bet~ . . ~tenalnlna tandins can lead 1o** c:hmared recon1 NJIC 1 ttm). - _,_ *that thla ii lnefficlenL First, It ~""'_...,....
| |
| 1_~ : : and ~-bearma In which valuable time md resourcea
| |
| --~oa,eoenllallylrrelev11111-- *
| |
| | |
| -Federal a__,_ f *Vol.. 51, No. tze f '11n1rtdey, Ja!y s. **
| |
| * i PropORd 1lw*: - *Ja89 warenffl of propoted actlom ad *: -i *
| |
| * the ;abUcaUon of* aotlce of ~ - f l f * * *
| |
| * The current ftl'IIOD of the ralea1Soet would enable the NRC. tbe atilitJ, -cl an tppHcatlon. * *** -.* ', .. , - :'.-.- *-__ .,,. *' *11ohpecifJ Umepmod for the .*
| |
| the public to meet Informally h. Identify
| |
| * Cumml NRC pr~dlcHet1a:lre9 '._ ** .....
| |
| * submlnlon of petltiom for INn to and ret10lve q,,esliona and couceuw .of pubUcaUon ef a notice et the tbne an -
| |
| * Intervene. The nbtniuloa of petition*
| |
| lnterett le the pabllc.* . *
| |
| * application It docketed. Al 11m poinL *
| |
| * may take a, long a, the aot1ca l:pedflet
| |
| -Commlnloner Anet.tine believN * * -the lime period for ftlins petltionl for -even If tt la longer than thirty days.
| |
| * that thue chaqea would remove aome . leave to interYene commences. The aw
| |
| * _*_
| |
| * Then revislom to J U<M proposed by of the probleml of the exiatiDs paragraph (a){2) would~ . *
| |
| * Commlaaioner Auelatme would regulatiom. lnc:tivtdualt without publtcatton prior to docketing. * * * ** streamllne the J>l00UI of lnternntkm appropriate lnterNt In the proceeding CommJ1noner ANelttlne't l)rOIIOA) by forclDi the mtarYeDOn ID nbmlt would not be ffllng contentkml, would require the NRC to pabllth a
| |
| * petition, within thirty daya. Thia ahowd
| |
| . . ., contenHont without any nHdfty would not be the ,ubject of discovery, and -
| |
| notice ln the F.senl Repater that It bu reoelnd an application. In 90me result in tha nrly ldeotlficatioD of thole persona with *tandina lo participate u contention, that do not nbe B8mdne circum,tancea, lhe regulations woald partlet to the p"OcHcilng tate filed lasue1 of fact would not be addressed In permit an appllcan1 to flle an application Intervention petttlom would be a bearing. These moderate comtnlntt . In teparate parts. In these butancea, the considered 81 provided ID lbe on fonnal 1nterveoti0D1 would be *_ proposal would require publication of* C'.ommlalion'a nalu.
| |
| ..... balanced by expanding the _ notice of receipt at the time the earliest * .
| |
| opportunities for inf'ormal public
| |
| * filing ii made with the NRC. The Notice of Proposed Action (10 a'R participation at a much earlier N89 ot proposal also would require the NRC lo 2.105) (Item 11) the Jioemlng procen and in greater eatabllah a local public document room The nvt'..iom to thia aection proposed depth than la DOW p01slble. . at th e time tfpubllahet the notice of by Commlsaloner Aaselatine are At the Comm1Bsion'1 dlrectioa. the r receipL * . '. . . -~ . .* *. designed lo weamlin& the intervention it,_,..,.. __
| |
| Ch a irman of the A t omJ c o<<U.,,., ~
| |
| ~ . Thete Ntvitiomwouldenable . -
| |
| Interested naNont to notify the NRC of procees tn proceed1np la which
| |
| * LicenJin3 Board Panel prepared a* r-- bearin'"' is not ulred by la reviled version of 10 CFR Part i. This their Interest In the application at the
| |
| * e .... ~ req The war
| |
| '"*- rewrite of Part 211 available mthe earliMt posn'ble ~ of the licemin;g , C'-o~lu:ion ~~ (prop}{B)~~
| |
| Comml as Ion** Publlc n-----*
| |
| &,IU\,WIJCUl ~
| |
| n~ A proceu. These per.0111 would then be , m informed. either -'1--.t~ or keptt inf ...,_..1, ca on require luuance of required notice majority of the Commluton bu ..., -~ .... ..,.... t th time U tioD la docketed.
| |
| previously voted not to tolidt comment. the JcicaJ public document room. of the 1 1 a e an *PP ca on this proposal and haa Indicated that progress of the application. 11:da early * ** Similarly, the proposed rewlon lo
| |
| ~ - _..-1.. notification also would allow the NRC paragraph (e)(2) would require lbe It does not propose to CODBIUCJ" sm.u_ * *. ttaff to meet with Interested penona presiding officer to decide whether to comments at this time. - *
| |
| * before formal procedurel regarding grant e request for bearing and/or Nonethelesa. Comminioner Intervention commence. _ petition for lean to Intervene u aoon u Anelstine believes that 1M Uoeming - _ _The final change in the regulation ai practicable after the fi1ins deadline Board Panel rewrite contaim
| |
| * number proposed by Commiwoner A.net.tine . tpeclfied in the notice bat dONd.
| |
| of useful ideas for improving the ,
| |
| Commiaaion'a Rules of Practice. He would delete the provision for early Without these proposad .
| |
| * would appreciate any commenti 00 this publication of* notice that an modificatlom. Commissioner Aaehtine
| |
| "'*. -* . . revision to Part 2 In addition lo __ application has been received If the
| |
| * believes that the poeaibillty would exist commentl 011 this proposed rule.
| |
| * NRC decidet to review the application that a proceeding In which a bearing la for technical adequacy pursuant to not required would take longer than a u
| |
| * Section-by-Secticln Analysi8 of I 2.101(11)(2). Since the notice of receipt proceeding in which* bearing it CommiasioDBr Asse1sl.JM,.1'ropo.ala **
| |
| * would be published a1 the time the required because the NRC took too*
| |
| Definitions (t_ 0 CPR 2._f) (Item I) __*_ : _ application la received, retention of a epedal provision for thil kind of nview much time either to lane the required notice of proposed action or lo decide One addition la made to the : -* ; _- would be redundpL *
| |
| * whether to grant petitlom for leave to
| |
| *- =a:n1::~~~~ _ N~ttceof~_(tOCFR1.1ot)(I~ :!i:;c:ii:1~:~o!~'=
| |
| public document room." Tbil room II an 101 - -..... - . .it * * : * -: : - The proposed rules would ensure that _
| |
| integral part of the NRC'1 program to
| |
| * One of the two reviaiom lo thi proceedings that do not require hearings enaure public awareness and eectlon proposed by Commissioner would proceed wtth appropriate celerity.
| |
| participation. Therefore, a deftnltion of a Asseletine would require the *
| |
| * _
| |
| "local public document room" (IJJDR) *Commission to publish a notice of * - . - Intervention (10 CFR !.71.l) (Item 15) that mirrors the definition of the hearing at the aame time that the * * - .:.-
| |
| Commission', publlc document room - Commlulon docbts the application for The main focue of Commiaaloner bas been added. Commiasloner *. *
| |
| * a construction permll Applicatione for
| |
| * A.sselstine*, proposals would Involve
| |
| . I Aaselatlne*a proposal would also codify
| |
| * early site review are excepted became existing 11taff practice, which la to the notification procedurea pertainlng to the rulee govemlng Intervention.
| |
| Specifically, Commluioner Anelttine establiah an LPDR u ~ u an *_ early elte review provide Bllfflclent : would not require the contentiona be application I t ~ *; } *- * * * -- '. notice to the persona that mlsht be drafted before a declaion on the 1:':liR~ of * * ~_:::<-'* ** ,: **
| |
| * affected by an early alte review~** * - * * . intervention petition la made. After that
| |
| .-UUl6 ~~!-Fl (10 O'R ~ ) * - The other revdlon ii more aignificanL decision la banded down. the_ draftins of (Item 8). :::,;-:'~- ;,-~-.;,.: *.o'<i-~.,_, '***-* * * :
| |
| * Thia revi11lon would add a new
| |
| * _ _ contentiom would commence under L ** A number of revialom iJrould be made *. paragraph (5) to I %.tOl[a) and would *
| |
| * to. this section under Commi11loner * . require the notice of bearing to state that Asselat1ne*, proposal. The ID0lt ' ** - -~ ** petitions to intervene mmt be med no important change would Involve 1be -*-
| |
| * later than thirty dip after lhe notice of modified ,F.OC8dures-*, -*
| |
| * 1P "_-_ . -- -
| |
| * To accompllab thb rettnlcturing.
| |
| oubstantlal revistona would be made In
| |
| * I 1.114. Paragraph (a)[l) would be -
| |
| * addition oh new paragraph reqalrlJl8**- hearing la publlmed. ** * ***:*. '!" * * *
| |
| * rewritten to take*account_of the change
| |
| | |
| 24370 Federal Register / Vol 51, No. 128 / 11umday, July 3. 1186 I Proposed 'Rules in the notice provialont of I UIM. . application. He therefore tloet 111>1 wait
| |
| * prealdln, offioer lo declae whether
| |
| * Paragraph (e) would be rede,tgnated to aacrlrice the ability otlntervenon to beartna ahould be held an the paragraph (d) and rewritten to raqulre addreaa their .-.lid concema in ahe name Cl0ntent10111 filed by an intervenor. To that the prealdin8 officer grant or deny of afficlezacy. Commi&eioner Auelatlne - obtai.D
| |
| * heuq on a contention. an the petition and/or, In certain lnatance1. recognize* that ninety daya ii a abort . tntl!A'enor wouJd bne to eatabliah that a requeat for* hearl"!f_ H 100D u period when dealing with an iuue H
| |
| * eenulne i*aue .of mater1al fact mata. .
| |
| practicable aher the Wini pedod ha . complex u nuclear power.-Therefore. be Although the propoeed revision * : * * *_.
| |
| closed. ** * ,- * *
| |
| * eapeclally eeb ~ l l on the * . duplicates the summary dl1po11tJon *
| |
| * Paragraph (b) would be redesignated paragraph (h) and would be revied to
| |
| ~ufficiency of lhe ninecy-day period lo.
| |
| . accomplih the tab that would be *
| |
| *tandard, lhe burden would not rigorou1. For pW'pOllea of the decJel:on be** *:*
| |
| * require that the period for drafting. . ...required by the ~1100 lo paragraph ., required by the amendment, the - *~
| |
| * contention not commence until a (b), Commilsloner Auelstine alao teek -- intervenor would not have lo make decision on Intervention ha been made. comment on the advisability of revlafna detailed factual all~ationa. Rather, the
| |
| * In addition. the revulon fo parqraph (b) the ~11l00'1 rules govffllll>I the
| |
| * intervenor would only need lo ,how that
| |
| - would contain more delaUed ~ : - - conalderation of la le-filed conlentiona lo an "inquiry lo depth .. ft appropriate.
| |
| _* requlrementa for the drafting oT * .::_. **
| |
| * require the admlnlon of any late-filed_ .. Once that 1howipg t. made, the contenUons and would provide for* - contention upon a bowing of gopd _ Intervenor would have established that ninety-day period In which tom~ ta use due to the ln titutional . a genuine isue of material facu exlata.
| |
| contentiona after the orders on . unavailability of the informaUon which . Thia 1tandard wa adopted from the
| |
| * intervention had luued. The ninety-day eatabllabea the factual bul,s ~or ~e D.C. Crcuit'1 decision In Independent period alao would apply to any order contention. .__ ._ - _ .*-<. _ ..: Banken Au'n v. Board of Governon, with respect lo a requeat for* hearhli
| |
| * Special Prehearing Conf~ In
| |
| * fi16 F.2d 12061220 n.57 (D.C. Cir. 1975).
| |
| made puru_nt to I UOS. belie . : _ ConstrucUon Permit and Operating In Commiuioner Auelatine"1 opinion.
| |
| CommisSJoner Asset.tine ves . Ucense Proceedings (10 CFR 2.7511) the reult of lhJ1 propoaal could be * .
| |
| that these change would repreent an , (Item l6l .- ** , , . - further reduction in the number of l1111ea improvement over CWTeDt practice. By ' to be de d be
| |
| * requiring that the contution drafting The revhiODJ *to I 2.7H propoaed by consl re at a anng.
| |
| - period not commence qntil after the CommJHloner Auelstlne would Acco rd inalY, more lime could be decls.lon to grant or deny-the - *, *- * *:*
| |
| * neoesltate certala changes to this * -
| |
| * dev~ted to th e iu~ of real Intervention petition. Commlulooer .
| |
| * ffciion. First. paragraph (a) would be slgmficance. ~ addition. the hearins Aaselsline would 1eparale the decision
| |
| * amended so that the time limlta for a * .could take.leu time. . *
| |
| . on Intervention from the deciaion oa the , prehearing conference conform lo the . Envtronmenial lm~tegodcal validity of conlentlona. ** * *- -*. ** time limits for drafting contentions. _ Excluskm * . -~- ,
| |
| * Aa a result of this revision, lhe .- ~ ' _.
| |
| * Second, In paragrapha (a)(3) and (d}.
| |
| presiding officer may not have lo review
| |
| * references to decisions on the atatn, of :
| |
| as many contention because peraona , Intervenor& would be deleted. Third. and * .am
| |
| , . Th er:.p~ osetf ~ t a ould CommJ H 1on*
| |
| , Rul w of 81
| |
| * l without sufficient Interest lo establish ,
| |
| * most lgnificant. the reviaiom of
| |
| * Practice oondifed in lO Cf'.R Part 2 and standing 18 a party would not be . .-*
| |
| * paragraphs (a)(3) and (d) to thi ection therefore~ the eli~blhty criteria for_
| |
| permitted to file contentiona. In . would require that a provialonal or, fn the calegoncal exclusion et forth ill 10 addition. the poHible reduced workload 10me case, a final determination on the CFR Sl.2Z{c)(l). Accordingly, pursuant ahould enable the preidlng officer to
| |
| * admJHibillty of conlentiona be made.. *. *to 10 CFR 51.2Z(b}. no environmen~
| |
| devote more time to reviewing the
| |
| * Under Commissioner Aaselatine'1 . impact tatemenl or environmental
| |
| ** validity of contention, rued by persons proposal provialonal admtttanoe_of . anessmenl need be prepared In who have a aufficient stake in the *
| |
| * contentiona would occur if the . * -~-
| |
| * _ connection with the iuuance of the
| |
| * outcome of the proceeding. .* : - =** requirementa of rewed I %.71.f were** - * . -proposed ~dm~n':'- .
| |
| - .
| |
| * Beaide1 changing the or4er of the -,
| |
| * met and the presiding officer 4etermined Paperwork Redudlon .(ct Re~ .
| |
| A . proceedJng. CommluJoner Auelatine's .that a set of facts exat ~ch, if true. *. .* * *' * .
| |
| 'W. revision to paragraph (b) would add would entitle the Intervenor lo relief.
| |
| * Tha Information collection
| |
| * aome greater rigor to the draftlna of . Thia latter requirement la 1hndar to the *. requirements contained in this proposed contentions. No longer would ll be - calculus used by the federal -courta in_ rule are exempt fNim the requirementa aufficient for the Intervenor to ftle an
| |
| * deciding motiona lo dismlu for a failure *of the Paperwork Reduction Act of 1980 umupported list ofspeclfic contentiona. ** to stale a claim upon whicluellef oan be * (44 U.S.C. 1518}. * - * .. J - * ;. - * -* :
| |
| * Under the proposaL the intervenor *granted. See Conley v. Gibson, 355 U.S. Backfit Analym O - *:.. * * -~ * -
| |
| * would have ninety day to draft -- .fl, 45-48 (1957). * -.. - - * - * ~-- * ** * -- * , -- ' .
| |
| - contentions which m111t Include a brief - II fa Comrnisidouer Aaaelstine'1 view : -: This proposed rule does not modify- or ata temenl of algnificanl facll that .. that thla propoaal would eliminate all . a_dd lo 1ystems, *~tures, components,
| |
| * upport the contention and c'ftatlona lo - contentiona that clearly have no baia In or design of a facility. the design - ** - *.
| |
| . documents or 1ource1 which have been fact or have no bearing on the outcome approval or manufacturing license for.a or will be used to establish 1uch facta. - of the proceeding. In either event. more *- facility; or the procedurea or r_ * * - ,: , .z. *
| |
| ' Thus, contentions would have lo have al time could be devoted to Issues that * * - organization required lo-design. ...__ ~~- i_
| |
| least some scientilic er legal -:: *- ~ * .
| |
| * have some impact on the outcome of the.. * . construct. or operate a facility, : -... : *.:_. .*._,,-*
| |
| * underpinning. Thi also would reduce . proceediq; *. ..,_ *.- --~*~*~ -:, -:::. - *,. ,.
| |
| * Accordingly, no backfit analysis . . - '- . *.c the number of contenijons lhst the - .
| |
| * _* Preh * - , j,. __ ;. * * '( ,b CFR- ) *. . *pursuant.lo 10 CFR 50,109(<:) ia required-:-*:*
| |
| presldingofficerwould~vetoreview.,, earfng~~ce 1 . _ ~ , . . ,. forthlaproposed~, *_.*..... *,:....*.;.* ~
| |
| The increase in efficJency la obvfoua. *- _ - ~lem 17) * *. * :;. *.
| |
| * _- .-*.: :.---:.i !*. -*: ;-_ *Regulatory~ Ad Certificatioii".: --j Commissioner ANelatlne bcdieYea , *. _ The revfalan pro~ed bf ** ! ~ * ,..... * . - .. *- . - - , -*. **. -
| |
| * _
| |
| _ that efficient adjudication l not lhe *: *
| |
| * Cornmlsaloner.AsselUne would add a : * .. - The proposed role will reduce the . . '-
| |
| primary goal ofa hearina on a * ~ . ,. . -new paragraph (a){6J to .thlnecti~- -:* *. procedural b~en on NRC Ucenaeea- by
| |
| . ~tructlon ~ I J .or.operating U ~ . '.fhis addition 't'.!ould require.the ..;: :*:-:'-*. __ imprqvlng the hearing proceu. The
| |
| | |
| Federal Register / Vol. St, No. 128 1 Thunday, July I, 1986 I Propoted Rules ZU71 tmpact on lntervenora or potential . 167. Section uao mo INvetl under NC. 103. appllcanr1 environmental report and tn tervenora will be neutral While ea Stat. 838. u amended (42 u.s.c. n>>J and ulety nport) that lhe petitioner intervenors or potenUal intervenon will I U.S.C. W. Sect.lom l.800 and U08 alto dilputn and the IUJ)pOl'tins reapom for have to meet* h.l.J. . , ,*L--L-1d e r ~ to Jain laiued llirued under u.s.c. au.
| |
| under 5 U.S.C. Section IA and z.eoe alto NC. Z8. Pub. L e ch di spute, or, If the petitioner 1
| |
| 5 admiaalon lo NRC proceedinp aJl(I. es-aae, 11 Ital 579. u amended (42 u.s.c. bellevea that the application faU. to thereby, incur IOqle addiUonal economic Z039). Bubpan IC abo INued under tee. uc, contain Information on* relevant matter cost In prepariq reque ll for bearing Pub. L 11-us.1& Stat. mo (-CZ U.S.C. t01MJ. aa required by law, the Identification of or reque1ts to Intervene, the proposea Appendix A also llsued under tee. e. Pub. L each failure and the 1upportlns ~
| |
| lmprovementt lbould reduce for the petitioner'* belleL On wuu lntervenora' coat ~ the bearing -
| |
| commences. Thu, In accordance with
| |
| : 2. In paragrap i
| |
| 91-680. IC Stal 1471 (42 U.S.C. !115).
| |
| h1 (1 ..:..1 (f) of RU 1 2.7l4' ri lna under the National *
| |
| * Em1ronmental Policy Act. the petitioner the Regulatory FlexJbillty Act of 1980. 5 lhe words "paragrap (d) of th l.a shall 6Je contentiom hued on the U.S.C. 605(b), and the NRC Size tectlon" which appear1n the fourth sentence of paragraph (a)(l), In the applicant' envtronmental nport. The Standards (50 FR 50241), the petitioner can amend thoae contentions Commlulon certifies that thia rule. If promulgated, will nQt have* algnlficant alng]e tenlence In paragraph (a)(2 and In th e tingle sentence_ In para~p (f)
| |
| L or 8le new contention* If then are data or conclUJlom in th9 NRC draft or flnaJ economic Impact upon* 1ubetantial are reviaed to read "paragrap (d)(l) of -environmental Impact 1tatement.
| |
| number of amall entitles and that thJJ eection." Paragraplu (b), (c), and (d) environmental aueument. or anv of f .Z.7'H are also revt1ed to read 11 -
| |
| therefore a regulatory Dexibillty followa: 1upplementa relating thereto, that differ analyal1 need not be prepared, 1lgniflcantly from the data or Llat of Subjecta In 10 CFR Put i f 1.714 Intl! wecllllOIL conclut10n1 In the applicant's document
| |
| * * * * * (c) Any party to a proceeding may file Adminlltratlve practice and (b) (1) Not later than fifteen (15) daya
| |
| * an answer to* petition for leave to procedure, Antitrust. Byproduct prior to the holding of the lptCial . intervene within ten (10) day1 after materlaL Claulfied lnfOJ'DlJltion. prehearing conference ~ant lo . lervfce of the petition. with particular Environmental protection. Nuclear I 2.751&. or if no special prehearing _ reference to the factora aet (orth In
| |
| * materials. Nuclear power plants and conference ii held. fifteen (15) daya prior paragraph (d)(l) of thla NCtion. The 1taff reactors, Penalty, Sex discrimination. to the holding of the first prehearins may Die euch an answer within fifteen Source materiaL Special nuclear confer.ence. the petitioner ehall file* ** (15) daya after aervtce of the petition. .
| |
| material, Waste treatment and disposal,
| |
| * aupplement to hla or her petition lo (d) The CommlHlon. the preaklina 1
| |
| For the re&80D8 set out in the preable Intervene that mut Include a lilt of the
| |
| * officer or the atomic Nfety and licensing and under the authority of the Atomic contentlona which petitioner aeeb to board designated to rule-on petitiom to Energy Act of 1954, u amended, the have litigated In the hearing. A
| |
| * intervene or requeetl for hearing or the Energy Reorganization Act of 1974. u petitioner who falls to file a eupplement adminlbillty of contentionl ahall. in amended. and 5 U.S.C. 653, the Nuclear that aatlafiet the requirementl of
| |
| * ruling on- * .
| |
| . Regulatory Commiaslon 11 proposing to paragraph (b )(2) of thia section with (1J A petition for leave to intervene or adopt the following amendmentl to 10 respect to at least one contention 1rill a request for a hearing. consider the CFR Part 2. * . not be _t:tted to partlcf~_te u a following factora. among other thinp:
| |
| PART 2-RULES OF PRACTICE FOR party. ditlonal time for filq the (I) The nature of the petitioner'* right DOMESTIC LICENSING PROCEEDING aupplement may be granted hued upon under the Act to be made
| |
| * party to the a balancing of the facton in paragraph proceeding.
| |
| L The authority citation for Part Z * (a)(l) of thia aection. (ll) The nature and extent of the contlnuea to read u foll~ *
| |
| * _ * (2) Each contention mutt comfit of* petitioner'* property, ftnancla), QI' other Authority: Seel; 161, 181, 88 Stal 9C8. 853.
| |
| u amended ('2 U.S.C. Z201, ZZ31); aec. 191. u
| |
| *= ==
| |
| *mended. Pub. L 117~5. 79 Stat. a (42 U.S.C. ZZ-tl): tee. 201, 88 StaL1MZ. u
| |
| ~~'!;,:!: 53. 82.
| |
| . ~=*=~lion:~~
| |
| apeclfic atatement of the luue of law, fact. orr policy to be raised m contro
| |
| **verted.
| |
| * In addition. ~tltloner (I) A brief explanation of the bae1 of
| |
| : m. 81 , too. 104, tos. BIi Stal 930, 832. m, 835. the contention.
| |
| 936. 937, 938. u amended (42 u.s.c. mn, . ~ (ll) A concise 1tatement of lhe alleged Interest in the proceectine (ill) The poulble effect of any order-that may be entered"in the proceedins on the petitioner'1 lnter81L (2) The lfdmlnlbllity of a contention.
| |
| and refuae to admit
| |
| * contention If:
| |
| (l) The contention and aupporting 209Z. 2093. 2111. 2133. 2134, 2135): aec:.10Z. .
| |
| * facts or expert opinion wbJch aupport material fall to 1atilfy lhe requlrementa Pub. L 91-190. B3 Stal 853. a amended (42 the contention and on which the . of paragraph (b)(2.) of 1h11 section. In
| |
| * U.S.C. 4332): aec. 30:t, 88 Stat. tffl (42 U.S.C. petitioner intends to rely in provmg the determining whether* genuine diapute
| |
| &871). Sectiom z.t02. Z-103. l.101. Z-105. z.m contention at the bearing, together with exiata on a material issue of law, fact. or*
| |
| also inued under aeca. 1oz. 103. tot. 105, 183. references Jo those ,pecffic IOUl'C8I and policy, the Commfaaion or the ~cling 189. 611 Stal~ 937. 938. 954. 955. u - . documente of which the petitioner la officer shall conaider whether the .
| |
| ~\~~ ~~ !f.o~ ~ aware and on which the petitioner will Information presented punuant to Pub. L 97-415. 116 Stal 2073 (42 U.S.C. 22311). rely to eatablJeh those facta or expert paragraph (b)(2) of this Mctlon promptl Sectlona Z-200-Z.206 also luued undeneca. *. opinion. _ ,_ * *, _. _ _ .. . reasonable minda to inquire~ u to
| |
| ~-=
| |
| 1118. %34, ea Stal~ 83 Stal 44-1. u ainended. (ill) Sufficient Information (which may _the validity of the content!~ or
| |
| .-.._-* (42 U.S.C. ZZ38. Z282); sec. 206. 88 Stal 1248 f!;u';[=~
| |
| Include ~ormatfon pursuant to* .. . . (Ii) It appeara unlikely that petitioner
| |
| .C 1~ ~ : (-IZ. . paragraphs (b)[2) (I) and (Ii) of thil * - *
| |
| * can prove
| |
| * eet of facll .in 1upport of ill u.s.c. n 33). 8eictlom z.1100-2 608 alio muea section) to 1how that* genuine dispute . ~tention: or . - . : . *
| |
| * under MC. 10Z. Pub. 1;. 91-190. 93 StaL 1153. u . exists with the applicant on an luue of* , * (Ill] The contention. If proven. would inende(f (U u.s.c. -4332). Sections 2.700a, * -.. law, fa~ or policy. Thia ahowlna mUlt
| |
| * be of no conaequence in the proceeding
| |
| * 2..719 alao luued under & u.s.c..uc. 8ectfone . Include referencet to the 1peci8c . * .,.. becaUH It would not entitle petitioner to
| |
| * 2.75-1. ~ %.770 aho IAued *under s U.f.C..
| |
| * portions of the application (iqcluding the relJ,t or, . ;.
| |
| * 24ffl Federal Regiltar / Vol. 11, No. *129 f Thursday, July I, 1986 I Propoied Rules
| |
| . (Iv) The oontmtioa ranee ealJ 11D be uaed, ftdi pel1y ehaU lerft tlOptes of anwer oppotlng the 1l'IOtion
| |
| * separate.
| |
| l sue of law. contenUom niain8 mtfJ u ltl proposed written lelttmoby on each abort, end conctn mtement of the lnue of IMw may DOt be adailtled for other partJ at leut fifteen na) day tn materieJ factl H lo which II ts resolution In an evidenUary ..-ins, but . advance of the aeuion of Iha beanna at conll!llded that time exJ8'l1 a pnulne rather, 111u1t be dech:led ma tu baia of whJcb lb le1llmony 1- to l,e presented. Issue lo be beard. AD material facta set brief, or oral aquJMDt H direded bJ The preidins officer may permit tJae forth in the statement reqtilm! to be
| |
| . . . . ~ .
| |
| the Commiuloa or prnklq offios.
| |
| : 3. In I %.720. pansnpb (h)(Z)(W) II Introduction ol writtea leetimoay not 10
| |
| &e1"ec1. either wflh the comeiat of all parties preNDt or after Ibey have bad
| |
| * aerved bJ the IIIOTffll party wfD be deemed to be admltt.d unlen ' .
| |
| controverted by the statement reqalntd revised to read u foUows:
| |
| * reunnable opportunity to axarnme it. to be aened by the opposbti party. The Written lutimomy muat be IDcorporated opposing party may, within ten ('10) daya I 2.720 (h) * **
| |
| 8ubpoenaa. In the lranacript ol the record u if read or, fn the dlacreUon oI the prea1ding after Rn'k:e. repond In wri1m3 to new fact and argument, presented tn any omcer, may be offered and admitted In 1tatement filed hl 1upport of the motion.
| |
| {2) *** evidence u en exhibit. No flD"lhff upporting 1tatement or
| |
| *(ii} In addition. a party may file with (2) Any party aeelcing an opportunity respontn thereto wny be entertained.
| |
| the pre1lding officer written to cron-examlne 1hall requeet * * * * * *
| |
| * interrogatories to be answered by NRC perml111ion from the prel1ding oUicer. In I 11 ...._. b t ) I reviaed peraoonal with knowledge of the facrts The prealding officer shall not conJder 8. ...,_ peragrap c 1 designated by the Executive Director for any requeet to conduct a cron- to read u followa:
| |
| * Operatio111. Upon a finding by the examina Uon unless the reque t II I l.714 Pre19oaed lllldlngland prealding officer that atuwen to the accompanied by a crou-examination ooncluslona.
| |
| Interrogatories are necessary to a proper *plan that contaim the followiq . ** * ~ *
| |
| * decision In the proceeding and that lnformatioo:* (c} Proposed findings of fact mllll be nawera to the lnterrogatorie an not (l) A brief descrlpUon of the la.sue or clearly and concisely aet forth In reasonably obtainable from &DJ other Issues on which a"Oll-examination will numbered paragraphs and mlllt be 1ource, such a from the Commwton** be conducted;
| |
| * confined to the materia1 lnuea of fact PubJlc Document Room or Local Public {11) The obfective to be achieved by preeented on lhe record. with exact Document Room. the pre1lding officer cross-examinaUon: bd citation to the transcript of record and may require that the 1taff anawer 1he (iii) The proposed line or q_u_es'!,0ns
| |
| * exhibit in support of each propoaed Interrogatories. Such tnmTOg&torfn that may Jogically Jead to acbievini the finding. Propoaed conc:IHiona of law may aeek to elicit factual information objective of the ~ t i o n . must be aet fortb In numbered ,,.--.
| |
| reasonably related to the NRC mfr, together with lhe postulated answera paragraph u to all materiel iaoel of poslUon in the proceeding. Including
| |
| * data used, assumptions made, and analyses performed by the NRC ltaft which mJght be reasonably anticipated.
| |
| The cron-examiDatJon plan may be Jaw GI' dilcretion presented on the
| |
| -record. An latervenar"a propoed - J submitted only to the presidinK officer find.I.up of fact and coac1uBlom of law Such interrogatoriea may not. however, and to the membera of the Boa-rd and must be confined to luues which lhat be addressed to, or be oonslraed to must be kept by them In confidence. The party placed In controversy or sought to require: {A) Reaaom for not ulng presiding officer shall include eacll pla~ in controversy In the proceeding.
| |
| alternative data. uaumptioua, and analyaea where the altemative data, crou-examlnatiOD plan mid uy order 7.'Ja 1 ~ - ........pb (d) i. reYiaed relating thereto In the record ol aha ..-- -o- -
| |
| usumptlons, and analy1ea were not proceeding certified on appeal _ to read u follows:
| |
| relied on In the NRC staff reYiew; er (BJ (3) Paragraph (bJ (1) and {2] of tbl 11.112 Appeals to lhe Comm1n1en 1ron1 Performance of additional reeeercb or aectJon do not apply to proceedlop 1n1t1a1 c1ec111~-..
| |
| analytical work beyood that which ii under Subpart B or thJa part for * * .~ ..
| |
| * needed to aupport the NRC ataff'a modifica lion. aupeosicm,, or revocatlou (d) Brief CWJlsRL A brief ill exceaa of position on any partiailar mattm-.
| |
| of*allcenae.
| |
| ten (IO)"pages must contain* wunr content* wllh page references, mad*
| |
| ...u..of
| |
| : 4. In I 2.743, paragrapha (a) and (b) 6. Jn I 2.749, parqraph <-J ii l'eVlled table of case (alphabetically airanpd),
| |
| are revised to read u lollowa: * *
| |
| * to read u followa: . ,tatutea, regulation.a. and other
| |
| * f 1.743 Evldenoe. I l.741 a.--... of__,,_ offlc.rto authoritiea dted. with references to the
| |
| ............. o,'""=.:;! .__!:.___onN. ! . * . . . .. . - page of the brief when they are cited.
| |
| (8) General, Every party to. . - _, _,, - - UIW - * * -
| |
| proceeding hall have the right to (~) Any party to* proceedlna may * (1) An ppellanra brief must clearly present such oral or docmnentuy move, wtth or without wpporttns Identify the en-ors of fad or law that are evidence and rebuttal evidence and to affidavit.. For a decfeion by the the subject of lhe appeal An Intervenor-conduct. fn accordance with an . presiding officer In that party' favor as appellant' brief mu t be confined to
| |
| * approved crou-examfnatton plan that to all or any part of the matter Involved . issues which the f n t e ~ l l a n t contauu the information apecifled In In the proceeding. The moving party
| |
| * placed in controversy or 1 to pl!IC!'I .
| |
| paragraph (b)(2) oftble 980tion. ncb ,hall annex to the motion a eparate, In coptroversy In the For .
| |
| * cross-examination as may _be required . abort, and conciae statement of the
| |
| * for full and true dlclosure of the facll. material feels as to which the movblg
| |
| * each of the is.::r'Jpealed. the precise portion relied upon In support of *
| |
| [b) Testimony aad cron-examinatlon. . party contends that there fl no genuine the aaaertlon of arror ~u I ~ ~ :. - _
| |
| (1) The partlu shaD submit dlrect Issue to be heard. Motions may"be med t,rovided.ch - '
| |
| * bri.* .- * * ** ~~
| |
| testimony of wltnesaet In wrttten Form. at any time. Any other party may serve (2) Ea reeponafn ef mut amtafn .
| |
| unless otherwtae ordered by the
| |
| * an answer aupportlna or OPJ)08llll the a reference to the precl e portion of Iba _.
| |
| * presiding officer on the butt of * * * : motion, wilh or without aft!da_riti, *. record which R I ~ e~ ~~
| |
| objections preaented. In any proceeding
| |
| * within twenty (ZO] days aher aervice of _ aaertion made. *- ..., * **
| |
| !n which advance written teatlmony le lo the mo~ The party ah_a)l annex and * * * * * * **
| |
| | |
| Federal Regilter f ,vet. 61, No. 128 f Thunday. July a, .1986 I Proposed Rulef 14373 0
| |
| **_( . Comml,lloner ANetllhse'* Propou1a . utlll.:u Uoa laclllty t, oomplefe and . * *- The noUce of beal'ffll and the DOtlc:e or
| |
| . *a. in I u. paragraph (kl It reviled to _ acceptable lqr/ocket.ins, II ,rill be '*
| |
| * docketing nqu:::, I UOt(d) may be
| |
| ,*readufollQwa:.*-.**: ,*._-.**, ___ ...*
| |
| * lnlUally~ate uaieadered .*
| |
| * r -~-- cotnbinedand u alnsle~Uce.
| |
| f * * ,(.* , - '" * .......* ** - a . application. .For thoae applicatiom not "l'be DOtice will llate: .
| |
| t tu _Dtn.~ ;.:~
| |
| 1
| |
| .i.-_.: *.*_. *..- *: aubfectto.theadvanqenottficattoo *11)'11letfme,place.~aatureol'the
| |
| * * ~ _ t;. ~-~ . -~ .. . .._. ., procedun11inl;.101(1)(2),aeopyoftbe ~and/orpre'!9ariqconference.lf (k) MJ)ublJc Document Room" mean * , tendered applicaUon will be available - * .-* any: ~ :- . - .* * - . * .r: :
| |
| * the place at 1n, ff Street NW., . : for PQbllc ~pectton In the * . (ff) 11}e authority~~ ,the.
| |
| Walhlngton. DC, at which public. *_' .* - ~Inion I Public Document~~* beartns I.I to be~~ _. _:~.: ,-. .* :
| |
| * record, ol the Commlalon wUl ... . . *. .- Generally*.* determination of * * ' * * * (iii) The ma~.o! ~ id.la~ to be ordinarily be madeavallabl~ for
| |
| * acceptsbllity for docbting wUl be made_ considered:_-- . . . * . ; . . .
| |
| inspection. "Local Public Document* *: wi th in thirty (30) daya. However,: 1!1-:..: :*; **(ivjTbe time within wbicb IUllW8l'I to Room" mean the place neu the aelected conslnlction permit * - * *.* ..* '. the notice lhaD be filed; and
| |
| * proposed laclllty or activity at whJch *
| |
| * applicatio111, the CommlNlon may * * * * (v) That petitlom to Intervene mutt be l-
| |
| * public record, or the Commission * ~~ 0 1~" dete~~~!f'f'JI) filed no later than thirty (30) da)'I after
| |
| ; ** .-. . regarding that facility or activity ~u a e--e O0 ,nthee li otion~a, ell the docketins or the application." .
| |
| . * ~ ,*, *.
| |
| * ordinarily be made available for a equacy 8PP ca w u .
| |
| .- Jnspection. Ill completeneu. In such ca1e1, the . tt. In I 2.105, paragraph, (a)(B) and
| |
| .. ** . . . _. . :.. _ * : .. *: * ** * - determination ol acceptability will _ {e)(2) are l'e\rited to read a1 follows:
| |
| * * ** * ** generally be made within a period of **
| |
| * _...
| |
| * _ .,__ _ 9. In I 2.101, paragraph (a) la amend~ iixty (60) day1. For dockettns and othar t 1.105 Nollet or propowl actloft.
| |
| a follow: * * - . requirement lorappllcatiom punuant * (a)* * * .... * - * * * * * *.-. *
| |
| * _* * . . Paragraph, (a)(3). (4). and (S) are to Part 61 ol thla diapter, 1ee paragraph * * ** * * * * * - * -~ *. * :_*
| |
| ,** ** * --- ' . redeslgnal~ *-*~ragraphl_!a)(f). (S). . _. * (g) ofthJueption. _* * ~ _-. :;_- : . _- _ '(8) In the ai°e"ol u*appllcation tor an A' .* and (B); * * ~ * * . *
| |
| * _ * . * ' * *. * *
| |
| * operating license for .a facility of a type W' ., . . In the flrt eentence ol redeaignated .- '10. .bi I .Uot. paragrap"b (a) la revlled described in I S0.21(b) 1 M.,., of thl1
| |
| .- * -* - paragraph (a)(4), the reference to *:*'
| |
| * r U * . ~* or ' I " ' -
| |
| :-
| |
| * 1a)(S)" 1, changed to '1a){&)"; . , -: . _....- _to read a.~o owa: 1 . *_ :* _ .... *._ :. chapteJ: er I testing facility, a notice ol
| |
| .,
| |
| * hi the second"sentence ol * - * ' * . f 2.104 Notice of IINrtng. * .* . - * . . opportunity lor hearing muat be INued
| |
| ~ *: * *
| |
| * ntdealgnated paragra&(aK4)til). the- . * * (a) (1) In the cue ol an ap_plicalkm on * ~ 1~Uns °! the,.BPP~
| |
| * c*
| |
| * * ... . . . "{a)t4)[U) ;
| |
| r-. -.
| |
| reference,,to"(a)[3){il) i l ~ _ t o _.-*_- whlchah~aringllrequiredbytbeAct* _:
| |
| . Paragraph (a)(Z) ia reviaed and redealgnated paragraph (a)(3); and a *
| |
| * -. follows: *
| |
| * * -.* *
| |
| * or tha chapter, or In which the
| |
| * Commission ftnda ihat hearing ii **
| |
| required In ihe public lnlerett, 1ne
| |
| *.
| |
| * new paragraph (a)(Z) iJ added lo read as Secretary will luue a notice of bearing
| |
| * to be published in the Federal R.eglater (e) 4.-~*_i:. '~ *
| |
| (2) If a reque,t for a- beariq or
| |
| * petition for leave to Intervene b filed
| |
| * within the tlme prm:rfbed in the notice,
| |
| -the prelldlng officer, who lhall be an
| |
| * 1 1
| |
| . * * .* as required by law at leat fifteen (15) Atomic Safety and Lfcentlns Board
| |
| * _ .. . f 2. 0 FJllng Dfasiplkdon.- -* : * .; * . *days, and in the cue of an application established by the Commission orby the*
| |
| * *:: . (a} (1) * ,. * - :- * * * ,
| |
| * concerning a comtruction permit for a .. Chief Administrative Judge of-th*
| |
| * _: _ . (2) Upon the re;eelpt of an application facility of the type deacribed in *
| |
| * Atomic Safety and IJcenalng Board
| |
| * : ~-- * .for* license for a faclllty deacribed In .
| |
| * I S0.21(b) or I 50.22 or this chapter or a PaneL will tule on the request or_~litlon
| |
| *. . . . I S0.21(b) or I 50.22 or this cbaptm:, _the testing radlity, at least thirty (30) daya, u 100D u practicable altar the Wing
| |
| . __ .. . Commission hall publlah a notice of prior to the datuet for beariiJa In_ the .
| |
| * date ipecified In paragraph (d) of th1a
| |
| . receipt or the application 1n the Federal .. ROti~ .. ,.1.
| |
| * _ nctlon bu cloeed. The Secretary or the
| |
| * .. Register. Uthe application ~.fora. . . . (2) If the notice of heariha concemhJi pmiding officer hall Issue a notice of
| |
| * a __*.* ..
| |
| W nuclear power reactor, the notice mut!- , *an application for a comtruction permit Identify the Local Public Document . for a facility or the type deaaibed in .
| |
| bearing or an appropriate order: The presldins officer deaignaled lo nJle on a I** .
| |
| * Room where Information relating lo the .. I S0.21(b) or I 50.22 ol thia chapter or a request or petition concemfria a.e application will be available for public. *.testing facility does not speclly the time antitrust~ ol an application may lnapection. If the application it : and place of Initial bearing. a . be either an Admlnla1rative Law Judie 1ubmitted In three part, ** permitted In subaequent notice will be published In or an Atomic Safety and 1Jcena1na paragraph (a)[6) ol this section, the date . the Fecleral Reglter which will provide Board. * . * * *
| |
| * or receipt ol the application will be the at Jeat thlrty (30) daYJ notice of the *: *. - * * *' -
| |
| * e~rlieat date on which any part of the
| |
| * time and place of that hearing. *After this . I 2.110 (Amended]
| |
| appllcaUon ii submitted. A c;o.py ol the notice 11 given, the prealdlpg officer may U. In I 2.110. paragraph (aX2) b application and the noflce ol reoelpt will teechedule the commencement of the -
| |
| * amended by changing the reference to be available for public lmpecUon In the
| |
| * Initial hearing for a later date or . **: ... "I 2.101(a)(2Ha)(4)" to .., Z.tot[a)(S)- .
| |
| Commlaalon'1 Public Document Room,--*, reconvene a receaaed be&rlng without*** *. - (a)(&)." *' * * - ** * *.- * . .
| |
| and In the Local Public Document Room .- agaln providing thJrty (30) daya notice: .-:. ' * .,.-* , *
| |
| * _.,, *:, .,.,.:_ .*. * * ~-~ * -
| |
| * Identified In thil notice. * * .. * - _. * (3) In addiUon.-ln tbe caae of an *: _* * -~:.. I 2.8:03 I ~ *. * *- ** .a *. *.., r *
| |
| (3) Each application for a license for a -* application for aconstruction permit for *
| |
| * 1.3. In 12.603. the third aenlence of
| |
| ., Facility or fQr '8(:elpt ol waste * * , faclllty of the type described In 150.%2 * * : paragraph (b)(l)lumended br :-~.-< * *
| |
| . radioactive ,natertal from other per&ODI
| |
| * or this chapter, or .a tee tins facility, ~
| |
| * changing the reference to ... z.toi. (1){3)
| |
| * ... _ _: for the purpote o~commercial drapou1 - noUce{otber than a no~ce ~~ -* ~ *and (aX.cr to "I_J.~(a)(t).~ (aX5)."
| |
| - by the w11te diapoal licensee will be , paragraph (d) of this aection) mut be * , - *-
| |
| * _. * ** ,.., *:.. .,. +=-'"\.!-:,-
| |
| '
| |
| * aulgnedadQcketnumber.Howev.er,to*. lauedatthetimetheappllcationlr-:-:- ~I.IOC I~_-.-*_; ~,_-, - .
| |
| ..
| |
| * allow a de terminal ton ol whether an * - docketed except a otherwise provided
| |
| * H. In I 2..604. paragraph (o) .la appUcatton for a con1tructlon pennlt or , by 11 2.101(a-1}. 2.6()3. and z.804 and by -amended by cbanglna the reference to opera ling license for a production or .* Appendix Q to Part 50 of thla chapter. - " , 2.714{cl)"_ tq .. I z.714(c).* .
| |
| | |
| M37t Federal Reptm / Vol 11, No. UB f '11lunday, July I, t986 / Pn,poted Rates I UM, paragraph (b) II
| |
| : 15. In ndetlgnated (h); pare,rapht (c). (d). {*),
| |
| (0. (a}, and (h) an rtdeaqinated (b), (c:),
| |
| (d), (e), (f), and (8}; and parqraph (a)(t).
| |
| tntereta of: (I) lnlrlcflns ineleftnl.
| |
| dupUcatin. or NPeffllve eYidence and argwnent. (I) brrins common tnteneta tntffffllat don not list at leat one ooaaatioD whlclt Mtiafia the ,
| |
| nquirement of thl1 p&ragrapb. tlaat
| |
| (}
| |
| reprennted by a lpOketman. and (3) Intervenor, absent
| |
| * howfns of sood and ft!delgnac.ed puqrapba {d) and (h) ntal.nJng l'Othority lo determine cause, will loe U1 ,tatua n a party to are NviNd to read u luUowa:
| |
| I Z.714 ll1tel ve1111011: "
| |
| =*and~~~Naflbe the proceeding: and (a)(t){l) Any perwoD wlaose lnteret (d) The pralclin, omcer 1hall eutar u (h) Not later than ftfteen ('115) daya may be affected by a proceeding and prior lo the holding of the apeci.al order which recite the action laba at who desires to participate 111 party the conference, the chedu)e for futher lhall file a written petition for lean to prehearinl a>nference punuant to I 2.'15ta, or where no IJ)ecial pnbeartng actlona in the prooeectinc, IDJ
| |
| * iDtenene OI' request a beuinB Ill agreements by the parliea, and which followa: *
| |
| * conference it held, ftfteen (15) dafl prior to the holding of the ftm ~ ldentifie by ksuH ID the proceeding.
| |
| (A) In
| |
| * prvceedi111 cm atUrat make provillonal or final ..
| |
| matten noticed pmnant tD conference, but In no event hm 'than determ1antions pursuant to paragraph I 2.t02(d)(3).
| |
| * petition to lntarnne or* ninety (OO) d111 after the fauance of an order pumiant to ~graph (d) of this [a}(3) of tbit aection, and provide for request for a hearing must be med ao the 1ubmlllalon of 1tatut report, DD later than thirty (30} day, after . section or paragraph [e)(2) of I 2.105, the publication of the notice. , intervenor hall me a Uat of contention dicovery. The order mmt be served which the Intervenor 1eeb to have upon all partial to the praceeding.
| |
| (B) In
| |
| * proceeding noticed pursuant to I 2.104(a), the petition lo intervene litigated In the proceedlng and the bun Objections lo the order may be filed by mut be filed no later than the time for each contention. In addition, the a party within five (.s) daya after am,ice epeclfied In the notice publiahed lntervenOT shall npport each contention of the order, except that the ltafl' may pursuant lo I 2.104{a} but In no event with a brief 1tateQ1ent of the algnlficant file objection lo aoch order within ten may lhe lime be leas than thhiJ (30) fact known to the Intervenor that (10) daya after aerrice. Puti8I may not daya after publication of the notice. support the contention, togethar with me replia to the objection anlen lbe (CJ Jn a proceeding noticed panuut . .-eference1 lo the olll'C81 and docummta Board 10 dlrecta. The flliDg of objectionl to I Z.105, a petition to Intervene or a which have been or will be relied oo lo - will not stay the decision un1en the request for a bearing mllBt be Bled no eatablJah 1uch fact. Additional time for presiding officer IO order. The Board later than the time epeclfied in the fWna the information described In drla may reme lhe order In oonslderation of notice of proposed action. paragraph may be granted baaed upon a the objectiODII preaented and, 81 (ii) Non timely filinga will not be balancing of the facton In paragraphs permitted by I 1.118{1), may certify for
| |
| * entertained absent* determillltiou by (a)(l)(li)(A}-{EJ of thl1 Ndion.
| |
| * determination to the C,ommJnfon or the the Comrni11lon, the presiding officer, or 18. la. I VSt* lbe iDtroductoty tat lo Atomic Safety and 1Jceming Appeal the Atomic Safety and Ucensing Board paragraphl (a). and paragraph (a)13) Board, a appropriate, auch matten designated to rule on the petition or and (d) are reviled to rNd u follows:
| |
| * raiaed in the objectiom u it deem request, that the petition or request appropriate. The order will control the ahould be grantecl baaed upon a t2.1&11 lpedalpl'9heartngconfernceln corwtrvctlon permit and opera~ llcenN 1ubequent COW'lle of the proceed1q balancing of the followins fadora In prooNdlngL unlea modified for ,ood oaue.
| |
| addition lo those aet out In paragraph (c)
| |
| (1) In any proceeding imolvfng an of thls IGCtion: application (or a conl1ructton permit or 11.1n I z.,az. the word "'and"
| |
| * (A) Good caUBe, if any, for fallµre to following paragraph (a)[5} la removed; file on time.
| |
| * an operating Bcnese for I production m utilization facility, the Commiaaion or paragraph {a}(8) la redestgnated (a}(1):
| |
| (B) 'I1le avallabWty of other means and a new paragraph [a){&) II added 1D
| |
| -whereby lbe petitioner' intere1t will be . the presiding officer ahaB direct the partiet or their counael to appear at a read II follow:
| |
| protected. -. .
| |
| tel The extent lo which 1he : * . 1peclaJ place and at apeclfied timt IUIZPrehwtl-.conllrallal.
| |
| petitioner'* participation may
| |
| * which DlUllt be at leut ninety (90) daya II rea onably be expected to amt In after iuuance of an order pmsuant lo I
| |
| .developing a 101.1I1d record.
| |
| * I I 2.t05(e){2) or 2.714{d) for* * * * *
| |
| * J (D) The extent to which lhe
| |
| * conference" to- (6)"J'be ~ f o r a ~ OD~
| |
| petitioner's Interest will be l'el)l'e;l8Dted * * * *
| |
| * contentiom filed by any and aH by existing partiea. . (3) Conlder all contentiODII of the lntemmora. A hearing must be held on a (E) The extent lo which the
| |
| * intervenon to allow the pre ldio,g officer contention nnlus lhe presldjng officer petitioner'* participation will broaden to make such provlalonal or Bna1 find that no senuine lnue of material the lssuea or delay ~ proceed1na. - determination u to the @drnl111b0lty of fact exiala with regard to the contention;
| |
| * *
| |
| * 1
| |
| * each contention, as may be approprtate. and A contention will be admitted * .; * * * -- _ ** >
| |
| [cf} An*order permitting or denyfna . provl1Ionally if It atlBes lhe c:riterta *.
| |
| * Intervention or directing that a bearing be held musfbe made 11 900D H
| |
| * et forth In I 2.714{h) and the pre,ldiJla officer determinee that the lnlervenor
| |
| °:!i::'_wuJiJn,ton.
| |
| DC. lltla 30th dQ ol practicable after the kriod petftfona or requat 1 doed.
| |
| for~ has ldentlfied a el of facts in upport of Jt contention which. if trua, *woaia For the Nudu.r RqaJatory Cmn~_ *
| |
| * SammJ J. CWJk. -. a * - * * *
| |
| * order may be CODditloned on IUCll tenM entitle the Intervenor toteliel..lfmi ; . Secrela17oftM Commitnta . *. ** _( ) -
| |
| a1 the Commission, the prea1dins offioer. ____ * *
| |
| * or the dnlgnated Atomic Safety and . , J1ue conr._ lllQ be omltled i.: 1,.. c...lbwe (FR Doc. ~1&081 Plied 1 ~ 1:cs aJII)
| |
| IJcemlng Board may direct in the *. - ... ether6mnamlemdp;u _ , , . ' *. .*--:.* ........ all.UNG COOUIIMMII :* *. , . . .
| |
| . . - .. *. :_.:\- . ,. *,:.~~-:-::>:!*=: .:,-:-::,:::.,..**_*-<,> . ' .. .- :**.=-,. *.*:*.':- .. ~
| |
| i
| |
| | |
| LIUQ(IJ ( SI 11111PR -,&
| |
| F/!---:f4~t,5) <J:J£/
| |
| 9 DO CKET ED USNRC THE ATTORNEY G ENER A L O JF' TEXAS
| |
| *a6 OCT 24 Al 1 :37 OFFI C~ *; ,:: * :- ,
| |
| JIM MATTOX OOC Y.'~: UL .fl. , .
| |
| ATTORNEY GENERrL October 23, 119.86':.
| |
| Secretary of the Commission Re: Proposed Changes U.S. Nuclear Regulatory Commission to 10 CFR Part 2 Washington, D.C. 20555 Rules of Practice for Licensing Attn: Docketing and Service Branch
| |
| | |
| ==Dear Sir:==
| |
| | |
| The State of Texas welcomes this opportunity to address the changes to the rules of practice for domestic licensing proceedings recently proposed by the Commission (51 FR 24365, July 3, 1986). In the comments below, Texas reviews first the proposed amendments which would apply to all parties and then those which would apply to intervenors only.
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| I*
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| §2.720 Subpoenas Texas strongly opposes the proposed blanket prohibition of interrogatories addressed to the reasons that the NRC Staff did not use alternative data, assumptions, and analyses. The choice of such matters often determines the conclusions reached. The presiding officer already has authority to reject unnecessary interrogatories addressed to Staff. It would be fundamentally unfair to place the Staff above the law and make the Staff immune from advance inquiry into the very bases underlying its positions.
| |
| §2.743 Cross-Examination The proposed rule would make a mockery of the judicial process in the administrative context. In accepting or rejecting a cross-examination plan, the presiding officer would have to decide whether the plan is necessary for a full and true d i sclosure of the facts. The fundamental flaw in this approach is that the presiding officer is not omniscient. On the contrary, a fundamental purpose of cross-examination is to elicit facts not already known or on the record.
| |
| 512/475-2501 SUPRF;MJ<-; COUUT DUILDJ .. 'G USTI. '* TR.' AS 7871111*25,BS Acknowledeed bv card ..* 9.~! 2 8 19~
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| a I .,
| |
| | |
| f U, S. NJCLE R Rt.CUL 0 f DOv~ I Oft Q I D
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| | |
| The change would raise serious problems and solve none. The existing rules allowing the presiding officer to regulate the course of the hearing (§2.718 and §2.757) are more than sufficient to allow control of excessively burdensome and irrelevant cross-examination. The amendment does not address the procedures to apply when a cross-examination plan is rejected or testimony deviates from the approved cross-examination plan. If the presiding officer rejects the cross-examination plan in advance, how would the cross-examiner go about establishing what the testimony might have contained? If he is given the opportunity then to make a record, then no one's time has been saved. If the testimony is heard and then later stricken, when would the questioner have the opportunity to challenge the striking or present alternate proof? The rule would include all cross-examination plans in the record on appeal. This would provide fertile ground for parties to argue about whether certain testimony should have been allowed and considered by the presiding officer in arriving at his decision. The facts would take second place to lawyering acrobatics.
| |
| §2.749 Motions for Summary Disposition The rule would give to a well-funded party the obviously unfair advantage to overwhelm other parties at crucial times, particularly during hearings. Further, the best-funded party is usually the applicant utility, with its own special objectives, and not an intervenor, the state, or the NRC, which either represent or are charged to represent the public interest.
| |
| Ironically, the amendment would detract from the presiding officer's current authority to control the timing of motions for summary disposition. According to the "Supplementary Information," the proposed rule is intended in part "to make it possible to terminate litigation at any point during the proceeding when it becomes apparent that a genuine issue of fact is no longer in dispute." (51 FR 24367, July 3, 1986) However, it would doubtless be used to try to inundate the other parties at inopportune times. The losing party would then almost certainly assert a due process violation and proceed to pursue litigation on that point alone. If circumstances (i.e., apparent absence of a factual dispute) really justify it, the presiding officer could, under his existing power (10 CFR 2.718), terminate the hearing and proceed to consider a motion for summary disposition under the orderly process of the existing rule.
| |
| | |
| II.
| |
| ' Texas, as an interested state, is not directly affected by the three procedural changes aimed at intervenors. Yet, it is indirectly affected by the proposed changes' adverse effect on the exposure of health and safety concerns during licensing proceedings. The local citizens often have better access to the facts than does the state. For example, whistleblowers have been much more willing to go to intervenor groups with their concerns.
| |
| The unfair aspects of these proposed rules are an affront to the people of Texas and seriously undermine crucial health and safety concerns.
| |
| §2.714 Intervention Some of the proposed changes would require too much of an intervenor at this very early stage of the proceeding. It would be unfair to require, as in proposed (b)(2)(ii) for example, the detailed references to sources and documents upon which the petitioner will rely to prove its case. Further, part (d)(2)(ii) would allow refusal of a contention if it "appears unlikely that petitioner can prove a set of facts in support of its conten-tion." There is no way to be kind about this proposal: it is a grossly improper method to prevent the airing of issues by prejudging them.
| |
| §2.754 & §2.762 Proposed Findings/Conclusions and Appeals These last two proposals ignore--and even denigrate--
| |
| laudable efforts of a number of citizen groups who have brought to light deficiencies that otherwise would have remained hidden until the licensed plant began operating. Each intervenor has a different perspective on the licensing proceeding from those of the other participants. Conscientious intervenors can make a unique contribution to the adjudicatory process. The months and years of an intervenor's effort can bear a ripe fruit when the time comes to reach findings and conclusions or to review an appeal. The efforts should not be summarily rejected because they do not fit some mold. They should receive such due contemplation as their quality merits.
| |
| CONCLUSION Texas is disappointed that the majority of the Commission is taking the proposed approach to revision of the procedural rules and calling it an improvement. The Commission would be wise to reject the rules proposed. No one would claim that the NRC's procedures are flawless: yet, the Commission should try to offer improvements which do not sacrifice fairness in the name of efficiency. Our nation's fundamental values do not place expediency above truth, justice, and the public health and welfare.
| |
| | |
| Respectfully submitted,
| |
| ~~
| |
| Renea Hicks Joe Riddell Assistant Attorneys General Environmental Protection Div.
| |
| P.O. Box 12548 Austin, Texas 78711-2548 (512) 463-2012
| |
| | |
| __ JOCAil,_.
| |
| etoeolfomPR-b @
| |
| Atomic Industrial Forum, Inc./
| |
| 710 1 Wisconsin Avenue Bethesda, Maryland 208 14
| |
| 'I ~
| |
| L~J ,A ~A?/&'"
| |
| td v /4
| |
| ?) 'I' ,:;,JC£);,/
| |
| * Telephone (301) 654-9260 TWX 7108249602 ATO MIC FOR DC DOCKETED USNHC
| |
| '86 OCT 23 P12 :28 October 17, 1986 (mailed Octatfe-f' :"2 F ,. 1986)
| |
| OOCr1:. Ti' ~: * -..
| |
| Secretary ~-' I \ I J * ._
| |
| U.S. Nuclear Regulatory Commission Washington, D.C. 20555
| |
| | |
| ==Dear Sir:==
| |
| | |
| Re: Request for Public Comment on Proposed Rule:
| |
| Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process (51 Fed. Reg. 24365-74, July 3, 1986)
| |
| The Lawyers Committee of the Atomic Industrial Forum, Inc. files these comments in response to the request for public comment on "Rules of Practice for Domestic Licensing Proceedings
| |
| - Procedural Changes in the Hearing Process" (51 Fed. Reg.
| |
| 24365, July 3, 1986).
| |
| The Commission previously had requested public comments on a package of administrative proposals for revising the hearing process contained in a draft report of the Regulatory Reform Task Force. (49 Fed. Reg. 14698, April 12, 1984). Pursuant to that request the Lawyers Committee of the AIF on June 25, 1984, filed comments. We hereby request that those comments be incorporated and be made a part of the comments on the currently proposed rule changes.
| |
| The Federal Register notice of July 3, 1986, requests comments on five proposals which the Commission has identified as meriting "continued consideration for possible inclusion in Subpart G of the Commission's Rules of Practice." The comments of the Lawyers Committee on each of those proposals are as follows:
| |
| : 1. Section 2.714 - Intervention (Admission of Contentions). As noted in our comments of June 25, 1984, we agree with the suggestion that the threshold for the admission of contentions be raised to essentially require the proponent of a contention to tender evidence suggesting the existence of a genuine factual dispute. We continue to support the idea that proffered contentions should be supported by a prima facie evide ntiary showing of specific facts which, if established, would cause a modification in the plant or its method of construction or operation. In this regard we generally support the revision to 10 C.F.R. § 2.714.
| |
| Ack OCT 2 8 1986 nowfectged by ca rd . .. . n **.-.--. I I I *
| |
| * I ** *W
| |
| | |
| S. N\JCl.EAR R.EGUlATORY COMMISSION DOCKETING 8. SERVICE SECT ION OF FICE OF THI' SECRET ARY OF THE COM I , ION stmar' p:
| |
| d' ec ial
| |
| | |
| We have difficulty with three specific points in the proposed amended Section 2.714 as follows:
| |
| (a) The proposal would allow a contention to consist of specific statement of an ''issue of law, fact, or policy." We do not believe it is appropriate for policy issues to be the subject of contentions in individual licensing prodeedings. The purpose of a hearing on an individual license is to resolve issues of fact which are in dispute with respect to the license. Formulation of policy is for the Commission and disagreements with Commission policy should only be addressed to the Commission. It is singularly inappropriate for an Atomic Safety and Licensing Board in the context of an individual licensing hearing to admit and decide issues of policy.
| |
| In connection with this matter we call the attention of the Commission to the method utilized by the Environmental Protection Agency ("EPA") with regard to consideration of ques-tions of policy in initial licensing proceedings under the National Pollutant Discharge Elimination System ("NPDES"). By regulation, hearings are limited to disputed issues of material fact. (40 C.F.R. § 124.12l(a)). The EPA regulations provide "no cross-examination shall be allowed on question of policy except to the extent required to disclose the factual basis for permit requirements, or on questions of law, or regarding matters (such as the validity of effluent limitation guidelines) that are not subject to challenge in permit issuance proceedings." (40 C.F.R.
| |
| § 124.12l(b)). NRC Rules of Practice today prohibit challenge in an individual licensing proceeding to rules and regulations of the Commission in the absence of a particularized showing set forth in the regulation. (10 C.F.R. § 2.758). Even where such challenge is made, the matter is directly certified to the Commission for determination. We suggest that it is inconsistent with this regulation as well as the thrust of Commission organization to allow contentions based on policy disputes to be heard by an Atomic Safety and Licensing Board.
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| (b) The standard for determining whether a proposed contention state a material issue of law, fact, or policy under the proposed revision to Section 2.714 is whether the information presented in connection with the contention "prompts reasonable minds to inquire further as to the validity of the contention."
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| We suggest that such a standard is inappropriate as a basis for ruling on contentions. According to the Supplementary Information in the Federal Register notice, the proposed standard is the standard articulated in the 1980 United States Supreme Court case of Costle v. Pacific Legal Foundation, 445 U.S. 198 (1980), as well as other federal court decisions. We disagree with this reading of those cases. The Costle decision does not support the standard as articulated in the proposed regulation and, in fact, does not involve or incorporate any standard concerning the prompting of reasonable minds to inquire further. The other cases cited similarly do not support the proposed regulatory provision. As we read the proposed regulation, this standard would be but one of the items (and an alternative item) to be considered in determining whether a genuine dispute exists. (See proposed§ 2.714(d)(2)(i)). We suggest that this standard be deleted.
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| (c) In our previous comments submitted to the Commis-sion on June 25, 1984, we suggested that issues at the operating license stage should be limited to issues that were not and could have been considered and decided in a prior related proceeding before the Commission unless the proponent of such issue makes a substantial evidentiary showing that significant new information relevant to the issue has been discovered since the prior proceeding and that, as a result of such new information, the facility will not comply with the Atomic Energy Act, other provisions of federal law, or Commission regulations. This concept has not been included in the proposed revision to 10 C.F.R. § 2.714. We urge the Commission to adopt it as one of the standards for admissibility of contentions.
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| : 2. Section 2.720 - Discovery Against the NRC Staff.
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| Although we do not object to the effort to control discovery against the NRC Staff, we do not believe that the proposed change is an adequate response to the general abuse of the discovery process in NRC licensing proceedings. Analysis will disclose that the current NRC practice with respect to interrogatories consumes far more time and effort than any possible benefits from such discovery. In fact, the interrogatory process in licensing cases is subject to greater abuse than any other step in the hearing process. Discovery primarily is being used for harassment and delay, and only rarely does discovery translate itself into material useful to or introduced in the licensing hearing proceeding itself. We believe appropriate revision to the rules of practice requires a substantially greater modification to the discovery rules than those proposed in the current rulemaking.
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| : 3. Section 2.743 - Cross-examination Plans. In the prior Commission request for public comments dated April 12, 1984, a provision was included whereby meaningful cross-examination plans were required to be filed in order to assist in the determination as to whether to permit cross-examination. The current proposal of July 3, 1986 substantially dilutes the usefulness of requiring such cross-examination plans. Under the current proposal, a cross-examination plan must contain a brief description of the issue on which cross-examination will be conducted, the objective to be achieved by cross-examination, and information that the proposed line of questions logically leads to achieving the objective, together with postulated answers.
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| This contrasts with the prior proposal under which a party seeking to cross-exami ne would have been required to specify the disputed issue of material fact on which cross-examination is requested, an offer of proof on wha t is to be established, a statement as to why cross-examination would result in resolving the issue of material fact as to which cross-examination was requested and why written testimony could not establish the same point. Moreover, under the prior proposal, a party requesting cross-examination also would have been required to include with the motion an estimate of time necessary to complete the cross-examination and the names of individuals who were to conduct the cross-examination. Further, the prior proposal would have allowed a party to request cross-examination "only as to issues of material fact germane to the subject matter of an admitted contention advanced by that party." The prior proposal also would have allowed opposition to be filed to the motion for cross-examination. These requirements are all missing from the current proposal. In essence, there no longer appears to be a need for a party requesting cross-examination to demonstrate the need for such cross-examination, and the new proposal for cross-examination plans contains no express provision for allowing the presiding officer to deny or condition cross-examination. We believe this so waters down the proposed revision with respect to cross-examination as to make it almost meaningless. We also believe any proposed rule on cross-examination should include a requirement that a board only permit cross-examination where, based on the written evidence, a genuine and substantial issue of facts exists, and the resolution of the disputed matter would be substantially assisted by cross-examination.
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| The proposed new rule provides that a cross-examination plan may be submitted only to the presiding officer and members of the board, and must be kept in confidence by them. We believe this has a potential for abuse. A party seeking cross-examination now will be able to submit a document to the licensing board in secret which may expound on that party's theories of the case under the guise of objectives to be achieved by cross-examination. Under the prior proposal, the safeguard was that the plan was to be kept in confidence only until cross-examination was completed, at which time it was to be inserted physically in the record. This would enable other parties to review and refute any arguments made in the plan before the licensing board arrived at its final decision. The current proposal, by contrast, only would have cross-examination plans included in the record certified on appeal.
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| We are disappointed that the proposal does not contain any reference to the imposition of time limits on cross-examination. Requiring and enforcing time limits for cross-examination is accomplished routinely in federal courts and in other administrative agencies, and rules of practice before such agencies frequently specify that time limits will be established.
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| In summary the proposed new rule on cross-examination does not adequately accomplish the goal of providing for meaningful cross-examination within reasonable time limits.
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| : 4. Section 2.749 - Summary Disposition. As explained in the Supplementary Information in the July 3, 1986 Federal Register notice, the proposed amendment to the summary disposition rule would permit motions for summary disposition to be filed at any time during the proceeding, including during the hearing. This would be accomplished by changing the sentence in the present rule, which currently permits summary disposition motions to be filed "within such time as may be fixed by the presiding officer," to a provision that would allow such motions to be filed "at any time." We do not believe the rule change is necessary since, in our view, the current rule allows motions to be filed during the hearing if the presiding officer permits. We think this interpretation of the current rule is supported by the last sentence of the current Section 2.749(a) which begins:
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| "The board may dismiss summarily motions filed shortly before the hearing commences or during the hearing if the other parties or the board would be required to divert substantial resources from the hearing in order to respond adequately to the motion."
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| This sentence is not included in the proposed new rule. If the rule is changed in the manner proposed, we would urge the quoted sentence be retained. Otherwise, the effect of the change will be to diminish the authority of the presiding officer to control the hearing process. Summary disposition motions filed shortly before or during a hearing have the potential to interrupt the hearing, and in such case the Board should be able to dismiss, or at least hold in abeyance, such motions.
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| : 5. Section 2.754 - Proposed Findings and Conclusions.
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| Section 2.762 - Appeals to the Commission From Initial Decisions.
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| We support the proposed change in Section 2.754 which would confine an intervenor's proposed findings of fact and conclusions of law to issues placed in controversy by the intervenor.
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| However, we oppose the concept of allowing findings of fact and conclusions of law to be filed on ma t ters which were "sought to place in controversy." No record is developed on contentions which are sought to be placed in controversy but which are rejected. It is inappropriate, therefore, to allow proposed findings on such rejected contentions. We also believe it is inappropriate to permit an intervenor-appellant, on appeal, to brief the merits of issues which such party sought to place in controversy where the contentions were rejected. However, it is appropriate to allow appeals on the basis that a contention was erroneously rejected, and hence to allow appellant's brief on the subject of whether or not a contention was properly rejected. As we read the proposed rule, it would allow briefs on a much broader basis, going to the merits of the rejected contention.
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| The July 3, 1986 Federal Register notice also sets forth certain revisions proposed by Commissioner Asselstine to the present hearing procedures. The revisions suggested by Commissioner Asselstine would exacerbate the current problems of instability and unpredictability in the licensing hearing process.
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| Commissioner Asselstine's proposal that intervenors be admitted as parties based solely on consideration of standing, without the need to file any contentions prior to such admission, is particularly inappropriate. Such proposal makes no functional sense if the purpose of the hearing is dispute resolution.
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| Similarly, the process suggested by Commissioner Asse ls tine for provisional contentions, coupled by open discovery on all provisionally admitted contentions, appears to be open season for extending the licensing process. The standard for admissibility of provisional contentions suggested by Commissioner Asselstine would be a determination of whether the intervenor has identified a set of facts in support of its contention which, if true, would entitle the intervenor to relief. Such a standard is almost no standard at all when the entire determination of whether or not a contention is to be provisionally admitted is to be based solely upon the intervenor's statement and document references without the provision for any opposing filings or the applications of any Commission expertise in the determination of whether or not the filings of intervenor are credible. Viewing contentions in the light most favorable to the proponent, resolving every doubt in a proponent's behalf, and not permitting any opposing filings is particularly inappropriate for an independent regulatory agency which has as its reason for being the expertise it can bring to bear on a subject.
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| Moreover, according to the background information provided, an intervenor "would only need to show that an 'inquiry in depth' is appropriate" rather than the current requirement that the intervenor raise "issues of material fact." This completely alters the nature of the hearing process and would represent a step backward in licensing. The sole purpose of the contested hearing is dispute resolution - to adjudicate legitimate and substantiated licensing issues. A nuclear licensing hearing is an ineffective mechanism for providing independent technical review, and Licensing Boards have neither the across-the-board discipline nor the resources for the type of "inquiry in depth" suggested in Commissioner Asselstine's proposal.
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| Although as discus s ed abo ve we support cer t ain of the changes to the Ru l es of Practice propos ed in the July 3, 1986 Fede r al Register notice, we are disappointed that the con-siderable effort of the last f i ve years in this area has resolved itself into suggestions for minor changes of a few of the rules. We believe an overall look must be taken of Commission hearing rules, and that revisions far more substantial than those being proposed should be made. We urge the Commission to take further action on this matter.
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| We thank the Commission for the opportunity to file these comments and look forward to Commission action leading to licensing reform.
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| Very truly yours,
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| #!~~
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| Chairman, Lawyers Committee Atomic Industrial Forum, Inc.
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| BZC:sjl A PARTNERSHIP INCLUDIN G PROFESSIONAL CORPORATIONS DOCKETED USNRC 1333 NEW HAMPSHIRE AVENUE , N. W.
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| WASHINGTON, DC 20036 "86 OCT 21 P4 :46 (202) 457 -7500 TELEX : 440274 FACSIMILE : 202-457-751 I NEW YORK , NY 0FFI V*- c; -:::, , _ BOS , ON , MA SALT LAKE C I TY, UT DOCI\ ETJt;*,~,:;
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| * s _.;~ ; t'.t~oRT, cT RALEIGH, NC BP:\:*c,* ALBANY, NY SAN FRANCISCO , CA October 17, 1986 NEWARK, N.J LEBOEUF, LAMB, LEIBY & MACRAE (UK ) EDISON, N.J LONDON, ENGLAND Samuel J. Chilk, Esq.
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| Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555
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| * Re:
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| ==Dear Mr. Chilk:==
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| Proposed Changes in 10 C.F.R. Part 2 On July 3, 1986, the Commission published for comment certain proposed amendments to its procedural regulations in 10 C.F.R. Part 2. 51 Fed. Reg. 24365. As attorneys representing a number of utilities involved in the Commission's licensing and regulatory process, we wish to comment on the proposed changes.
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| The Commission has proposed changes in five areas of its rules of practice. The proposals range from potentially significant to trivial to unnecessary. In our judgment, only two of the five are worthy of further consideration by the Commission. We shall comment first on the two proposals that we support, and then on the three that we believe are unnecessary or unwise. Thereafter, we shall offer some additional comments on the proposals advanced separately by Commissioner Asselstine.
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| The most significant proposed amendment, and the one that clearly deserves prompt Commission action, is the proposed amendment to§ 2.714 concerning the admission of contentions.
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| This proposal closely resembles Option B to amend§ 2.714 originally published for comment by the Commission in 1981. 46 Fed. Reg. 30349. On June 29, 1981, we filed comments supporting the adoption of Option B by the Commission. A copy of our 1981 comments is enclosed and is incorporated by reference herein. It is unfortunate, to say the least, that the Commission has let five years pass without taking any final OCT 2 2 1986
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| #,knD#ledSt:U,.... hu w1 card. -***., **,.. *.....; -n'aslil
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| tl,t, NU(' r oo:r.. '
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| Samuel J. Chilk, Esq.
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| Proposed Changes in 10 C.F.R. Part 2 October 17, 1986 action on Option B. We hope that the current rulemaking signifies an intention on the Commission's part to adopt long-overdue reforms in§ 2.714.
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| The current proposal to amend§ 2.714 differs from, although it appears to follow the intent of, Option B. To the extent that there are differences, we are inclined to prefer Option Bas originally proposed.
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| There is one area in which the current proposal significantly departs from Option B. We believe that the new departure detracts fron the intended reform, and we suggest that it be omitted. Specifically, proposed § 2.714(b) (2) (iii) would authorize amended contentions or new contentions based upon data or conclusions in the NRC draft or final Environmental Impact Statement that differ significantly from the data or conclusions in the applicant's document. We do not understand the desirability of this provision. The purpose of a licensing hearing is to evaluate the project proposed by the applicant. EAnvironmental contentions should be addressed to the desirability or sufficiency of the project, not to the sufficiency of the Staff's review. There is no reason why an intervenor can not evaluate the project and prepare legally sufficient contentions based upon the application, including the applicant's environmental report. Under any version of§ 2.714, it is always possible to submit a late-filed contention and attempt to justify it. However, we see no reason specifically to invite or authorize late contentions based upon the Staff's environmental review documents. The burden should remain upon the intervenor to demonstrate why the contention could not have been formulated and filed at the outset
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| * The second proposed change that should be adopted by the Commission is the amendment of§§ 2.754 and 2.762 to limit the issues that may be raised by an intervenor in proposed findings or in appellate briefs. A similar proposal was advanced by the Commission in 1984, 49 Fed. Reg. 14698. In our comments filed on June 11, 1984, we supported the adoption of that proposal, and we continue to do so.
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| We believe that two changes should be made before the current proposal is adopted. First, both§§ 2.754 and 2.762 would permit an intervenor to argue issues that it "sought to place in controversy in the proceeding." We do not understand the basis for this provision. If a contention has been Samuel J. Chilk, Esq.
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| Proposed Changes in 10 C.F.R. Part 2 October 17, 1986 rejected under§ 2.714, there is no basis for permitting findings of fact or appellate argument on the matter. It is simply a waste of the resources of the other parties and the Commission to invite a intervenor to litigate an issue that has been rejected.
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| Second,§ 2.762 should also be amended to provide that an intervenor who fails to file proposed findings with respect to an issue or contention may not thereafter appeal from that portion of an initial decision dealing with that issue or contention.
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| We turn now to the remaining three proposals that we believe the Commission should not adopt. Proposed§ 2.720 would impose restrictions on the right to obtain answers to written interrogatories from the NRC Staff. The notice of proposed rulemaking indicates that the amendments would simply codify existing case law. If that is all that is intended, it is unnecessary. The Staff can respond to interrogatories that it objects to by simply citing the existing law. In any event, there is no reason why the case law should be codified solely with respect to the Staff. The indicated objections should be equally available to the applicant or any other party.
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| Adoption of the amendment as proposed would suggest that the Staff is protected from burdensome discovery and other parties are not.
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| The proposed amendment§ 2.743 would require the filing of a cross-examination plan as a prerequisite to conducting cross-examination. This is a silly proposal. It promises to waste more time than it is likely to save
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| * Moreover, by requiring inclusion in the record on appeal of the cross-examination plans and orders relating thereto, the proposed amendment would simply create a new area for appellate litigation, one that does not exist today.
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| It has been our experience that cross-examination is not a major source of delay in licensing hearings. There will, of course, be instances where the right of cross-examination is abused. The remedy is for the presiding officer to control the hearing as necessary, not to create new paperwork requirements that apply to all counsel.
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| The final proposal that we regard as unnecessary would amend§ 2.749 to permit the filing of a motion for summary disposition at any time. This would represent a departure from the Federal practice, upon which§ 2.749 is modeled. The purpose of a motion for summary disposition is to eliminate a contention or issue from the hearing. Logically, all such Samuel J. Chilk, Esq.
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| Proposed Changes in 10 C.F.R. Part 2 October 17, 1986 motions should be made and disposed of prior to the hearing.
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| Motions for summary disposition made during the course of the hearing are likely to slow down, rather than speed up the process. We believe that the Commission should refrain from adopting this amendment.
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| We do not propose to comment in detail on the separate amendments proposed by Commissioner Asselstine. It is our understanding that Commissioner Asselstine's proposals are not being presented by the Commission. If that is so, we believe that their inclusion in the notice of proposed rulemaking has no real effect, and that none of the separate proposals could legally be adopted. We are therefore somewhat puzzled as to why they were published at all
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| * In any event, it is clear that Commissioner Asselstine's proposals would seriously detract from the beneficial effects of restricting the admissability of contentions as originally proposed in Option Bin 1981. For that reason alone, they sould be rejected. Further, his approach would serve to divorce consideration of the standing of an intervenor from consideration of the intervenor's contentions. Recent decisions of the United States Supreme Court are to the contrary. The Supreme Court has emphasized that standing requires a demonstration that the injury complained of is both traceable to the challenged action and redressable by the proposed remedy. S e e , ~ , Allen v.
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| Wright, 104 s. Ct. 3315, 3325-26 & n.19 (1984); Simon v.
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| Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 42-43 (1976). Such prudential considerations are equally appropriate in administrative proceedings. The Commission should inquire whether an intervenor has standing to advance a particular contention. If the answer is no, the contention should not be admitted. Commissioner Asselstine's approach would serve to defeat this inquiry.
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| Commissioner Asselstine proposes various tests for the admission of contentions, including the existence of facts "which, if true, would entitle the intervenor to relief", and a showing that "an 'inquiry in depth' is appropriate." 51 Fed.
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| Reg. 24370. These formulations, if adopted, would undermine the purpose of amending§ 2.714 and would support holding hearings for the sake of having a hearing, rather than solely to determine matters concerning which there is a genuine dispute.
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| Samuel J. Chilk, Esq.
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| Proposed Changes in 10 C.F.R. Part 2 October 17, 1986 Finally, Commissioner Asselstine has requested comment on the so-called "plain English" version of 10 C.F.R. Part 2.
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| The Commission has wisely rejected that version. It goes far beyond a restatement of existing practices and would alter the conduct of Commission proceedings in many significant respects. Detailed comment on the "plain English" rewrite would require dozens of pages. It has not found support from the other Commissioners, and it should receive no consideration in this rulemaking.
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| In conclusion, we reiterate that the revision of§ 2.714 has been pending before the Commission since 1981. We hope that the Commission will now proceed to adopt significant reforms in its rules for the admission of contentions
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| * Sincerely, LeBOEUF, LAMB, LEIBY
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| & MacRAE
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| OFFICE OF THE ATTORNEYl oornuu USNHC .
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| '86 OCT 21 Pl2 :sa OFF1
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| CHARLES A. GRADDICK . OCKET/Nu' -I C£ f\-,,._11*-r~t-r
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| J A MES R. S OLO M ON , JR . ATT ORNEY GEN ERAL BRANC1-1 ,
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| DEP U TY ATTO RNE Y G ENER AL S TATE O F ALABAM A WILLIAM M . BEK U RS , JR .
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| E X E C UTIV E A SSISTANT ALABAMA STATE H OUSE W A LTER 5 . T UR NER 1 1 SOUTH UNION STREET CH I EF A SSI S T AN T A TTORNE Y GE N ERA L MONTGOMERY, A LABAMA 36 1 30 JA NI E N O BLES A REA (20 5) 26 1-7 3 00 E X E CU T IV E ASS ISTANT October 17, 1986
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| * Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Docketing and Service Branch Gentlemen:
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| We are writing in reference to the Nuclear Regulatory Commission's request for comments on proposed amendments to its rules of practice. 51 Fed. Reg. 24-365 (July 3, 1986).
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| We are concerned t hat the proposed rules may severely restrict meaningful public participation in hearings before the NRC. Moreover, these proposed rules could be an impediment to the limited resources available for public intervention. We ask you to carefully reconsider your proposal in light of these concerns and those of other parties opposed to these changes.
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| Sincerely yours, CHARLES A. GRADDICK ATTORNEY GENERAL Bk!wl./2l ROBERT L. RASH ASSISTANT ATTORNEY GENERAL CAG/sgt Aeknowted~ by card . ~~~~:,:,:. ,1, ,i, ,,. ..
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| OO(;KETEO 200 1 S STREET, N . W .
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| USNHC SU I TE 430 WASHINGTON, D. C. 20009-1125 .86 OCT 21 P12 :47 GAIL McGREE V Y H ARMON TELEPHONE ELLY N R . WEISS (2 0 2) 328-3500 DIANE CURRAN CFF :
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| f'('\f"J . '
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| !'r DEAN R . TOUSLEY tJ..J...,I "
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| ANDREA C . FERSTER October 17, 1986 'i.,_,
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| Mr. Samuel Chilk Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555
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| ==Dear Mr. Ch ilk,==
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| Enclosed please find the Union of Concerned Scientists Com-ments on Procedural Changes in the Hearing Process, 10 CFR Part 2, published at 51 Fed . Reg. 24365.
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| Very Truly yours, E11 y n R
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| * We is s Acknowledged by cartf. ~, .~.£!, !. ~-*
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| Ii I. NUCl£A~ ~t'("'fff A DOCKETINr.;
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| OFF l,-
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| Postmar1 D Copies r Add'I r Special D
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| /
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| '-------------- _.,/
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| UNITED STATES OF AMERICA NUCLEAR REGULATORY COMM!SSION
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| )
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| Rules of Practice for )
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| Domestic Licensing )
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| Proceedings-Procedural )
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| Changes in the Bearing ) 51 Fed. Reg. 24365 Procedures )
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| )
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| 10 CFR Part 2 )
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| )
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| UNION OF CONCERNED SCIENTISTS COMMENTS ON PROPOSED CHANGES
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| * Introduction IN THE BEARING PROCESS, 10 CFR PART 2, 51 Fed. Reg. 24365 These proposals are the latest and most draconian effort of the NRC to place obstacles in the path of reasonable and meaning-ful public participation. These proposals, and similar ones which preceded them have been rejected as unnecessary and un-reasonable by the NRC's own Appeal Board and Licensing Board Panel Chairmen. We have been unable to find any other agency
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| * which has devised a procedural system characterized by such systematic burdens on public participation.
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| NRC justifies these rule*s in the name of enhanced ef-ficiency, but it is abundantly clear that, if implemented, they will not make the hearing process more efficient, if that goal means that the hearings focus on the relevant safety and environ-mental issues. On the contrary, they will ensure that the boards' and parties' time is wasted in non-productive wheel-spinning legalistic arguments over, for example, whether sufficiently nspecific portions* of the application have been cited, whether the petitioner ncan proven the facts he alleges, whether a cross-
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| examination plan contains apostulated answers" that are "reasonably anticipated.* In short, the intent and clear effect of these rules is to focus hearings on threshold issues in an ef-fort to have intervenors thrown out of a proceeding, or to pre-vent them from questioning witnesses, rather than to have the boards actually hear evidence and decide issues. The NRC's fun-damental hostility to public participation is manifest in every page of this one-sided proposal.
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| The Chairman of the NRC's Atomic Safety and Licensing Board
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| * Panel has made a strong case that rules such as these are not justifiable on the grounds of administrative efficiency.
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| "While tempting to some, such proposals can only be counter-productive." B. Cotter, aNuclear Licensing Innovation Through Evolution in Administrative Hearings" Administrative Law Review, Fall, 1982, p. 532.
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| The article is incorporated by reference herein. The NRC has not presented any information to counter the data and arguments pre-sented by Chairman Cotter. In fact, the failure of the agency to do so in favor of repeating the incantation of efficiency simply makes it more evident that the motivation behind these proposals is to eliminate meaningful public participation.
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| 2.714 Intervention The proposal would require-as a condition for intervention-that a petitioner present a statement of the facts or expert opinion on which he will rely in "proving the contention at hear-ing" as well as references to *the specific sources or documents" he will rely on. This is before discovery (so virtually impossible) and totally one-sided. Neither the NRC nor the ap-plicant have to state what they will present in opposition.
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| - 3 Also prior to discovery, the would-be intervenor must pres-ent sufficient information nto show that a genuine dispute with the applicant* of law, fact, or policy exists, conplete with references to *specific portions" of the ER and FSAR which are disputed. This is a merits test. That is, petitioner has the burden of showing that he meets the equivalent of the summary judgment test as a threshold for admission. Such a procedure is without precedent, violative of fundamental due process, and con-trary to law. Note again the one-sided nature of the rule - ap-plicants need not present or support a motion, it is simply auto-matically presumed.
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| Additional hurdles for admissibility of contentions are con-tained in the requirements that the board must also find that the petitioner ncan prove a set of facts in support of its conten-tion* and that, "if proven,* the contention would "entitle petitioner to relief." 10 CFR 2. 714(d) (2) (ii) and (iii). Thus, before being admitted as an intervenor, petitioners must present evidence, show they meet the summary judgment standard, show they
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| * can *proven the facts alleged, and show that, if proven, they would be entitled to "relief."
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| The Commission claims that the "increased threshold" for ad-mission of contentious is "consistent with Supreme Court prece-dent," citing two cases, Costle v Pacific Legal Foundation, 445 U.S. 198 (1980) and Weinberger v HinSQn, Westcott and Running, Inc., 412 U.S. 609 (1973). 51C__~. Re~?~ 24366, n. 3, col. 2.
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| Neither case supports the Commisfil~n.,L0osition. On the con-trary, the differences between those cases and the proposed rule
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| serve to illuminate the legal defects in the Commission's proposal.
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| Costle v Pacific Legal Foundation, 445 U.S. 198, 100 s. Ct.
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| 1095 (1980) involved a challenge to EPA's rule requiring a person 0
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| requesting an adjudicatory hearing on an NPDES permit to set forth material issues of fact relevant to the questions of 0
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| whether a permit should be issued, denied or modified. 445 U.S.
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| at 204. The requester had concededly raised no factual issues; his contentions were solely legal and were resolved by certifica-tion to the Administrator. The requester nonetheless argued that EPA has an affirmative obligation in all cases to establish that the material facts supporting the permit are not in dispute, whether or not a party raised factual issues. Id. at 211.
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| The Court held otherwise, ruling unsurprisingly that it is 0
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| permissible for an agency to establish a threshold burden of tendering evidence suggesting the need for a hearing.a Id. at 214. Obviously, when relevant facts material to a decision are not set forth there is no need for a hearing. The more interest-
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| * ing aspect of the case is that the *threshold burden" approved by the Court is strikingly by similar to NRC's.current threshold; that is, a party must currently show 0 the bases for each conten-tion set forth with reasonable specificity." 10 CFR 2.714 {b).
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| In practice, this has required a showing of a factual basis for each contention and a showing of materiality, i.e. - a rela-tionship between the contention and an issue relevant to licens-ing.
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| 0 It is apparent, then, that NRC's current threshold test" is essentially the equivalent of the EPA test approved in the Costle
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| 5 -
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| case: a party must "set forth" material and relevant "issues of fact." The Costle case approves the use of a threshold standard similar to a "motion to dismissa standard. By contrast the Com-mission has proposed a threshold test that requires the ASLB to rule on the merits of the case as a condition for obtaining a hearing. This is clear from the use of the slll\mary judgment lan-guage (would-be intervenors must present sufficient information ato show that a genuine dispute* of fact, law or policy exists) and that they acan prove a set of facts in support of [the] con-tention, and that these facts would "entitle petitioner to relief." Proposed 10 CFR S 2.714(d) (2) (ii) and (iii). Nothing in the modest holding of the Costle decision can be stretched so far as to authorize use of a merits test as a condition of inter-vention, particularly considering that the relevant language of the Atomic Energy Act provides that "the Commission shall grant a hearing upon the request of any person whose interest may be af-fected by the proceeding, and shall admit any such person as a party to such proceedings.* (emphasis added)
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| * The Weinberger case, supra, 412 U.S. 609, 93 S. Ct. 2469 (1973) is even less supportive of NRC's position. The case con-cerns FDA procedures for withdrawing approval of drugs - a pro-ceeding in which, by law, the drug manufacturer has the burden of proof. The Court held that, because the burden of proof is on the manufacturer and because the proof required to forestall withdrawal is spelled out in great detail in the statute and rules, a hearing may be denied "when it appears conclusively from 0
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| the applicant's pleadings that the application cannot succeed.
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| 412 U.S. at 621, 93 s. Ct. at 2479.
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| | |
| Thus, while the case would authorize NRC to summarily deny an application for a license which failed on its face to meet NRC rules, it does not support use of a merits test at the interven-tion threshold against petitioners who do not carry the burden of proof. See 412 U. s. at 620-621, 93 s. Ct. at 2478-2479.
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| Moreover, further language in the case highlights the inap-propriateness of applying such a standard to intervenors/
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| petitioners in NRC licensing proceedings. The Court emphasized that the pertinent FDA rules were so detailed and specific as to make it clearly apparent from the pleadings whether the legal
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| * standard was met. By contrast, the Court noted that this rea-soning would not apply to regulations that of discretion or subjective judgment 0 0
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| call for the exercise in determining adequacy.
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| 412 U.S. at 621, 93 s. Ct. at 2479, n. 17. The Court stated:
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| The qualitative standards 'adequate' and 'suitable' do not lend themselves to clear-cut definition, and it may not be possible to tell from the face of a study whether the stand-ards have been met. Thus, it might not be proper to deny a hearing on the ground that the study did not comply with this regulation.
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| Id. The governing NRC standards, most prominently *reasonable as-
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| * surance" of safety, similarly require the exercise of judgment, as do the NEPA analyses, and thus fall well outside the scope of the Weinberger ruling.
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| In summary, neither case cited by NRC either explicitly or implicitly supports the threshold intervention test the agency has proposed.
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| In their entirety, these rules impose burdens so onerous and one-sided as to violate principles of fundamental due process.
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| They hopelessly confuse the merits decision with the intervention
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| \
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| - 7 -
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| decision - the latter being properly based on considerations of standing (i.e. - does the petitioner have a recognizable interest in the proceeding), not on whether he can, at this early stage, prove his substantive case. In our view, adoption of these rules would also, for that reason, violate the Atomic Energy Act's pro-vision that *the commission shall grant a hearing upon the re-quest of any person whose interest may be affected by the pro-ceeding, and shall admit any such person as a party to such pro-ceedings." {emphasis added) While the agency has reasonable lat-
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| * itude to ensure that frivolous requests are not granted (latitude which it now fully exercises under current rules), it may not set up such a stringent merits test as a condition of intervention.
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| 2.720 Subpoenas This section has been changed to require prior permission from the board to propound interrogatories to the staff, on the finding that answers are 0 necessary to a proper decision in the proceeding* and are not available elsewhere. In addition, the 0
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| staff may only be asked about factual information" related to the staff's "position in the proceeding. 0 They may not be asked the reasons why "alternative data, assumptions or analyses were not relied on in the NRC staff review *** n The agency cannot have it both ways~ if the NRC is going to continue to have the staff appear as a full party to proceedings, it may not insulate it from reasonable discovery. This is not, as the agency claims, simply a "codification" of current law.
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| While a party may not be forced to perform additional research through discovery, asking a party to reveal the reasons for its choice of data or analytical method is clearly fair discovery.
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| - 8 -
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| Indeed, it is often essential. Also, when the NRC is a party, opposing parties are entitled to more than the facts supporting its "positions" - they are entitled to know whatever facts relevant to the issues in the case are in the NRC's possession.
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| This rule is set up so that the staff need only produce what is favorable to itself - clearly an unfair result.
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| Moreover, the attempt to justify this rule as needed to con-serve staff resources is transparently weak. The staff now has fewer licensing cases than at any time in the past decade. If
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| * staff resources are insufficient to meet the reasonable obliga-tions that go along with party status,. the staff should not par-ticipate as a party. Intervenors are not excused from meeting the full obligations of the discovery process because of their disparate lack of resources.
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| 2.743 Evidence This proposal would work a fundamental change in inter-venor's rights. Now, a party is entitled to cross-examination *
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| * Under the proposed rule, he must receive prior permission from the board, which may only be granted if a cross-examination plan is presented which includes, inter alia, the 0 objective to be achieved by the questioning," the proposed questions, complete with "answers which might be reasonably anticipated." Moreover, the rule is stated in such a way as to indicate that, even if these requirements are met, the board may deny cross-examination on other unspecified grounds. This is supported by the ac-companying material, which directs the board to consider "whether the requested cross-examination is necessary for a full and true disclosure of the facts." 51 Fed. Reg. 24367.
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| Remarkably, the NRC tries to characterize this change in 25 8
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| years of practice as merely formalizing" existing practice. 51 Fed. Reg. 24364. While it has become common practice for cross-examination plans to be submitted (of substantially lesser for-mality and requiring less mind-reading than the proposed rule sets out), there has never been a requirement for prior board permission as a condition to cross-examine a witness.
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| Given the vital importance of the opportunity to cross-examine for intervenors, who are not able to approach the finan-
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| * cial resources available to the applicants and the NRC, this ad-ditional anti-intervenor rule can be seen as part of the pattern of assault on the ability of public participants to get evidence on the record, in favor of exhausting their resources and refocusing the hearings on threshold maneuvering to keep the record clean of troublesome information.
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| 2.749 Authority of Presiding Officer to Dispose of Certain Issues on the Pleadings
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| * This rule would remove the time limit for summary judgment motions, allowing them at any time, even during the hearing.
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| time for sUII1mary judgement is before hearings begin: if ap-The plicants and staff, with all their resources, are unable to make a successful motion prior to hearing, they should not be permitted to interrupt the flow of evidence to interpose a late summary judgement motion. Such a procedure is not allowed in any court or agency of which we are aware and is fundamentally at odds with the concept of summary disposition. The rule would provide a mechanism for diverting the scarce resources of inter-venors in the midst of a hearing and is patently unfair.
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| /
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| 2.754 Proposed Findings and Conclusions This rule would prohibit parties from presenting proposed findings on other parties' contentions. Its apparent purpose is to protect the agency from having to consider the full implica-tions of the record; one would have thought that the agency would welcome the views of participants in this regard.
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| Commissioner Asselstine's Proposals In general, we support Commissioner Asselstine's proposals.
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| They represent a genuine effort to get at the root cause of
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| * *inefficiency* on the licensing process - that the hearing "clock" begins at the time an application is docketed, even though that comes months before the completion of the basic staff review docliltlents necessary to focus the case and to put it in a posture ready for litigation. Moreover, the current system creates a positive incentive on the part of applicants and the staff to delay completing these documents. This is so for two reasons. First, since the Commission has ruled that contentions
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| * based on material submitted by applicants late in the process must meet the more difficult admission standard governing late-filed contentions (even if, by definition, they could not have been filed earlier), there is an obvious benefit to withholding material in the hope that intervenors will not be permitted to litigate contentions arising from that material. Second, even if an intervenor succeeds in having contentions admitted, his time for discovery and development of a case will be shortened. More-over, intervenors' resources are exhausted chasing a moving target. The current system is clearly inequitable in this
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| regard. The clock should begin only after the application, SER and EIS are completed.
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| Commissioner Asselstine's accompan1/4ing proposal is that a notice of receipt of application and public access to the relevant documents should take place early in the process, so that all potentially interested persons could familiarize them-selves with the material. Then, when the notice of opportunity for hearing is officially noticed, the case can proceed effi-ciently to hearing *
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| * Conclusion The timing of these proposals could scarcely be more ironic.
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| After the Chernobyl accident, the NRC and the industry proclaimed that such a terrible thing could never happen here because of the freedom of interested members of the public to raise and pursue safety issues in our system. Now, the NRC proposes a set of rules changes designed to make a mockery of that system. These proposed rules are anathema to a fair and open decision-making
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| * process. In its mistrust of the public it is mandated to pro-tect, this agency is willing to sacrifice public input and, as a result, gamble public safety.
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| These rules should be rejected.
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| Submitted by:
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| ~-R.. ~D1l::I Ellyn R. Weiss, General Counsel for Union of Con-Scientist Harmon and Weiss 2001 "S" Street, NW, Ste 430 October 17, 1986 Washington, D.C. 20009
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| OOC:K ETEO USNRC JOSEPH I. LIEBERMAN ATTORNEY GENERAL
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| .86 OCT 21 P1 :QQ
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| @ffice cf ~~e J\ttcmcl! l~cneral 30 TRINITY STREET HARTFORD 06106 October 17, 1986 Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Re: Proposed Rule: Rules of Practice for Domestic Licensing Proceedings--Procedural Changes in the Hearing Process
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| ==Dear Sir:==
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| The State of Connecticut, by its Attorney General, submits these comments on the proposal of the U.S. Nuclear Regulatory Commission ("Commission"), published July 3, 1986, 51 Fed. Reg.
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| 24365, to amend certain practice rules governing adjudicatory proceedings. These proceedings include hearings on applications to construct or operate reactors and all other nuclear fuel cycle facilities; to possess or transport radioactive material such as spent fuel or other nuclear waste; to expand existing operations (such as spent fuel poos); and to change the nature or scope of licensed activities (for example, to decommission a reactor).
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| Connecticut's concern about the Commission's proposed rule changes arises from the fact that four nuclear reactors and two nuclear fuel fabrication facilities presently operate here, and
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| * 350 persons and companies within the State are licensed by the Commission to handle radioactive materials.
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| Connecticut concurs in and adopts the comments already submitted by the State of Minnesota. On the proposed changes to Rule 2.714 governing participation in adjudicatory proceedings, Connecticut offers the following additional comments.
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| Rule 2.714 (10 C.F.R. Sec. 2.714) presently requires that a petitioner for intervention (i.e., for participation in an adjudicatory proceeding) submit a list of the contentions he seeks to litigate, "and the bases for each contention set forth with reasonable specificity." The Commission's proposal would instead require the petitioner to provide A concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner intends to rely
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| &J*
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| * NU l~AR p ("I l)O('KrT 0
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| Postl"'
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| Cc A
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| Special
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| Secretary October 17, 1986 Page 2 in proving the contention at the hearing, together with references to those specific sources and documents of which the petitioner is aware and on which the petitioner would rely to establish those facts or expert opinion.
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| Proposed Rule 2.714(b)(2)(ii): emphasis added. The licensing board will deny a petition which does not satisfy these requirements, or where it
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| - appears unlikely that petitioner can prove a set of facts in support of its contention
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| * Proposed Rule 2.714(d}(2)(ii): emphasis added .. Thus, the Commission would have petitioners for intervention (which includes the right to pursue discovery) produce the proof of their alleged facts in order to be admitted to the proof-gathering and fact-finding process. Moreover, the Commission would authorize the licensing boards, in effect, to prejudge the merits of petitioners' evidence. On its face, this proposal is unfair to those who may seek to intervene in Commission proceedings and unrealistically assumes that petitioners can have their cases-in-chief ready at the earliest stages of a hearing.
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| In the Supplementary Information to the July 3 Federal Register notice, the Commission cites several cases in support of these changes to the intervention rule. The primary cases referred to are Costle v. Pacific Legal Foundation, 445 U.S. 198 (1980), and Weinberger v. Hynson, Westcott and Dunning, 412 U.S.
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| 609 (1973). These cases do not support the Commission's proposed rule change: indeed, Hynson suggests that it is improper.
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| Costle v. Pacific Legal Foundation presented an issue which is not involved*here: Whether Sec. 402(a)(l) of the Clean Water Act, 33 U.S.C. Sec. 1342(a)(l), requires the U.S. Environmental Protection Agency to conduct an adjudicatory hearing before taking action on a permit application where, after notice of the proposed action, no *one requested a hearing and the only request filed subsequently raised solely legal questions and no material question of fact? The issue created by the Commission's present proposal is altogether different: Whether Sec. 189(a)(l) of the Atomic Energy Act, 42 u.s.c. Sec. 2239(a)(l), requires the Commission,
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| . after notice. of proposed licensing pr enforcement
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| / .
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| action, to grant a hearing upon the request of any interested person who raises a material question of fact, regardless whether proof of such fact accompanies the hearing request?
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| Secretary October 17, 1986 Page 3 Weinberger v. Hynson, Westcott and Dunning dealt with a drug manufacturer's challenge to the denial of a hearing request submitted after the Food and Drug Administration (FDA) proposed to withdraw marketing approval for a drug. Under the Food, Drug and Cosmetic Act, 21 u.s.c. Secs. 321 ff., the FDA is required, after notice and opportunity for hearing, to refuse approval, or withdraw any prior approval, of a new drug where "substantial evidence" is lacking that the drug is effective for its intended use. The manufacturer carries the burden of demonstrating that such substantial evidence exists. 412 U.S. at 617. "Substantial evidence" is defined by the statute to mean evidence derived from "adequate and well-controlled investigations". 21 U.S.C. Sec.
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| 355(d); id. FDA regulations establish minimum standards for "adequate and well-controlled investigations" and limit the right to a hearing to those applicants who can profer at least some evidence meeting those standards. Id. at 616.
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| In support of 'one of its new drugs, Hynson had provided the FDA with various materials -- a list of literature references, a copy of an unpublished study, and a sample testimonial letter on behalf of the drug. These materials did not meet the standards established by the FDA for "adequate and well-controlled investigations". When the FDA gave notice that it was withdrawing the drug and offered Hynson opportunity for a pre-withdrawal hearing, Hynson requested a hearing and submitted more material of like kind. The FDA denied the hearing request because it was apparent on the face of the application that Hynson could not prove its case, since that case depended on types of evidence the agency could not consider pursuant to its own regulations. Id. at 620 .
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| Approving the FDA's action, the Court observed:
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| There can be no question that to prevail at a hearing an applicant must furnish evidence stemming from "adequate and well-controlled investigations." We cannot impute to Congress the design of requiring, nor does due process demand, a hearing when it appears conclusively from the applicant's "pleadings" that the applicant cannot succeed.
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| Id. at 620-21. The Court went on carefully to point out when the agency cannot determine from the face of an application whether regulatory standards for "adequate and well-controlled investigations" have been met, i.e., where "the exercise of discretion or subjective judgment" is necessary it is improper to deny a hearing. Id. at 621, n.17.
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| Secretary October 17, 1986 Page 4 It is thus clear that the Hynson case presented far different issues than those presented by the Commission's proposal to limit public access to hearings under the Atomic Energy Act. First, Hynson involved a statutory provision (elaborated by adm1nistrative regulations) prescribing the type of evidence that will be allowed at a hearing, thus making it possible to determine at the threshold whether a hearing is necessary or will serve any purpose. There is no such provision in the Atomic Energy Act, which is not surprising, given the very different nature and the broad scope of matters litigated before the Commission.
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| Second, in Hynson it was the applicant, i.e., the seeker after a governmental privilege, against whom the agency's strict hearing requirements operated. In distinction here, it is the opponents of an applicant against whom the Commission's proposed hearing restriction would operate. This is important for two reasons: (a) Licensing applicants before the Commission, like applicants before the FDA, carry the burden of proving that the permission they seek will not harm the public. 10 C.F.R. Sec.
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| 2.732. It makes sense to scrutinize carefully their applications to determine whether there is any chance at all that they could discharge their burden at a hearing, thus justifying the time and expense a hearing entails. (b) Opponents of an Atomic Energy Act application generally represent those very interests -- the public interests in health, safety and corporate accountability
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| -- which the Atomic Energy Act and the Commission's safety standards seek to promote. To limit unduly public access to the hearing process undermines protection of those interests .
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| * Finally, the FDA applied precise and non-discretionary regulatory standards in determining that Hynson could not prevail at a hearing and that, therefore, a hearing would be useless.
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| The Commission is not in a position similarly to evaluate an intervention petition. Where a petitioner specifically raises a disputed issue of material fact -- even where he furnishes some supporting evidence or expert opinion -- the Commission cannot possibly determine whether he will prevail on that issue without the exercise of discretion and subjective judgment. The Hynson opinion indicates that in such circumstances, a hearing request should not be denied.
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| The remaining cases cited by the Commission also do not support the changes it now proposes. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519 (1978), addressed situations not involved here: 1) a Commission rule-making complying with the procedural requirements of the
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| Secretary October 17, 1986 Page 5 Administrative Procedure Act, 5. u.s.c. Sec. 553, and the Commission's practice rules but not amounting to a formal adjudicatory proceeding, and 2) a Commission refusal to reopen a reactor licensing proceeding and revise an Environmental Impact Statement under the National Environmental Policy Act, 42 U.S.C.
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| Secs. 4321* ff. (NEPA), to provide consideration 1,
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| of energy conservation measures as an alternative to the reactor. The Court validated the rulemaking process and held that, under NEPA, intervenors who urge the Commission to consider an environmental issue must structure their participation so that it is meaningful, so that it alerts the agency to the intervenors' position and contentions.
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| This is especially true when the intervenors are requesting the agency to embark upon an exploration of an unchartered [sic]
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| territory, as was the question of energy conservation [at the time involved here].
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| 435 U.S. at 553. The Court cited with approval the Commission's view that "[t]he showing should be sufficient to require reasonable minds to inquire further." Id. at 554.
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| The question of how much process need be provided during an agency rulemaking plainly is not involved in the Commission's present proposal. The second question decided in Vermont Yankee is also irrelevant, for it related to requirements for agency action under NEPA, not to requirements for public hearings under the Atomic Energy Act (or any other statute). The Court's decision on the NEPA question does not bear upon the issue whether the Commission has the authority, or should exercise its discretion, to demand more of a hearing petitioner than the formulation of disputed issues of material fact.
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| Independent Bankers Association v. Board of Governors of the Federal Reserve System, 516 F.2d 1206 (D.C. Cir. 1975), addressed the hearing provision of Sec. 4(c)(8) of the Bank Holding Company Act, 12 U.S.C. Sec. 1843(c)(8), and decided that the Board is required to accord a full hearing to interested parties whenever there is a dispute as to facts material to the Board's ultimate decision. 516 F.2d at 1221. In Connecticut Bankers Association
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| : v. Board of Governors of the Federal Reserve System, 627 F.2d 245 (1980), as in Independent Bankers Association, supra, banks opposing the application of a bank holding company to engage in non-banking activities challenged the Board's denial of their hearing request. In this case, however, the Board demanded that
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| Secretary October 17, 1986 Page 6 the opponents support their request with a statement "sUilUJlarizing the evidence they intended to submit and elicit at the requested hearing." 627 F.2d at 248. The Board denied the request for failure to raise a disputed issue of material fact, and the court affirmed. While it is not completely clear what role the opponents' evidentiary statement played in the Board's action, the court's affirmance was apparently based simply on the fact that the opponents' allegations "were either immaterial, or conclusory, involving only arguments or commentary on the significance of the evidentiary facts." Id. at 251. The court cited with approval its prior decision in Independent Bankers Association, supra, as well as a decision of the Eighth Circuit, American Bancorporation, Inc. v. Board of Governors of the Federal Reserve System, 509 F.2d 29 (9th Cir. 1974), which had required the Board to conduct a formal hearing on disputed material facts. Observing that "the burden of making the*
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| requisite showing to trigger the hearing requirement is not great," the court quoted Independent Bankers Association for the principle that A petitioner need not make detailed factual allegations in order to meet the requirement that he raise "issues of material fact."
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| 627 F.2d at 251.
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| In short, the cases the Commission cites in support of its proposed changes to the intervention rule do not support the proposal and, insofar as they bear at all on the matter, suggest
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| * that hearing restrictions like those sought here are improper.
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| Even without the guidance of these cases, it is apparent that the Commission's proposed action may violate Sec. 189(a}(l) of the Atomic Energy Act, 42 u.s.c. Sec. 2239(a)(l), which provides that:
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| the Commission shall grant a hearing upon the r~q'uest of any person .whose interest may be affected by the pro*ceeding, and shall adrni t any such person as a party to such proceeding.
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| Congress' intention of providing the public with a mandatory forum before the Commission is readily apparent not only from the statute's clear language but from the fact that all other forums are closed to the public with respect to questions of radiological safety. Pacific Gas & Electric Company v. State
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| Secretary October 17, 1986 Page 7 Energy Resources Conservation and Development Commission, 461 U.S. 190 (1983); Northern States Power Co. v. Minnesota, 447 F.2d 1143 (9th Cir. 1971), aff'd 405 U.S. 1035 (1972). In other words, the oniy opportunity the public and its officials have to voice their concerns over the licensing or conduct of a nuclear fuel cycle activity or to seek enforcement of Commission safety standards is in a hearing before the Commission -- an opportunity the Commission now seeks to severely restrict.
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| In the Supplementary Information the Commission expresses a desire to eliminate the admission of "frivolous" contentions. 51 Fed. Reg. at 24366. The Commission presently has the ability to exclude frivolous contentions without resort to such draconian methods as those proposed here. Applying the basis and specificity requirements of Rule 2.714(b), the licensing boards have long demanded relevant, unambiguous, and reasonably detailed contentions that alert the applicant and Staff to the issues in dispute. Moreov~r, the Commission's summary disposition procedure (Rule*2.749) enables the licensing boards, upon motion of a party, to dismiss contentions which have no basis and as to which there can be no genuine_ contest.
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| I~ should be.kept* in mi~d th~t the_proposed rule change, by requiring the submission of proof before discovery and by allowing the prejudgment of issues before a record is developed, would exclude not only frivolous contentions but m~ny meritorious and constructive contentions as well. Experience demonstrates that public intervenors in licensing proceedings often develop facts during discovery which significantly aid the Commission in
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| * making a well-informed decision and alert applicants to remediable deficiencies in their project proposals. There is no process like the adversarial process for keeping the regulated community and its regulators on their toes. See Independent Bankers Association, supra, 516 F.2d at 1224.
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| In a related vein the Commission has indicated its desire to conserve time and resources by cutting off at-the threshold litigation on baseless issues. Unfortunately, the Commission's proposal may generate, rather than obviate, delays and wasted resources. For example, Proposed Rule 2.714(b)(2)(ii) indicates that "expert opinion" will be received as evidence of facts alleged in a proffered contention. It is not hard to imagine an applicant vigorously contesting the accuracy of an expert opinion that accompanies an intervention petition, or the credibility of the expert. Debates of this kind at the outset of a proceeding can only cause useless and unnecessary delays. It should also be noted that-a person with standing, excluded because the licensing
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| Secretary October 17, 1986 Page 8 board discretionarily rejected his evidence on a material issue without giving him an opportunity to develop the facts through discovery, will have colorable grounds for appeal and may well obtain a remand. From the perspective of administrative efficiency, it is far better for the Commission to admit an interested person who raises a material issue and, in the event of an appeal, to defend its ultimate decision on the basis of a fully developed record.
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| As a matter of policy, it is inappropriate unnecessarily to limit public input into the Commission's licensing and enforcement actions. At a time of serious public concern about the safety of nuclear fuel cycle activities, the Commission ought not further restrict the ability of States and their citizens to participate in the regulatory process. "Open government" in this regard can help maintain public confidence in the impartiality and effectiveness of our regulatory agencies.
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| In conclusion, the State of Connecticut, its citizens, and the Radiation Compliance Division of its Department of Environmental Protection need to be assured of their opportunity to effectively participate in Commission decision-making on nuclear fuel cycle activities affecting Connecticut. I therefore request the Commission to reconsider its proposed rule changes in light of the comments set out herein and the comments of the State of Minnesota.
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| Very truly yours,
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| * LIEBERMAN GENERAL
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| | |
| Docketing & Service Branch Secretary of the Connnission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 0 DOCKETIF 50-443/50-4440L 86 OCT 20 P5 :3Q v Fl~~ r::- n:r OOC/:.~.,:
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| rj*e ar Sir:
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| This letter concerns the propo~ed rule changes in licensing procedures for nuclear power plants. It is ciear that these proposed changes are designed to get the public out of the licensing process and to speed up licensing of nuclear power plants in the United States, this democratic country. We are aware that these proposals would:
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| * 1.
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| 2.
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| 3.
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| 4.
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| Raise admissions criteria for contentions.
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| Restrict use of discovery against NRC staff.
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| Restrict use of cross-examination during hearings.
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| Allow Summary Disposition of contentions anytime during the licensing proceedings.
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| : 5. Limit the scope of issues that could be appealed.
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| All these proposals minimize the role and effect of intervenors during licensing proceedings.
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| Raising admissions criteria means the intervenor basically must prove his case in advance. As the rules are now, intervenors can hardly get NRC staff reports; corrnnents on license applications are generally not available.
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| This proposal would keep safety information from being brought forward to protect the public.
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| By restricting the use of discovery against the NRC staff, tbe public would have to take the NRC at its word. - Under current law, the NRC staff can be forced to justify its conclusions.
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| Restricting the use of cross-examination means that intervenors would ._
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| have to obtain special permission from the hearing judge in order to cross-e x amine witnesses. - Face to face confrontation is the people's tool for getting at facts behind an appli ~ant's claims.
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| Allowing Summary Disposition at anytime is a blatant disregard for public input. Potentially,all of an intervenors contentions could be dismissed even before any hearing took place.
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| Finally, limiting the scope of issues that could be appealed prevents intervenors with interests in another party's contentions from contributing to the hearing process.
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| Intervenors are voices of concern for public safety, a matter ' which the NRC continues to disregard.
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| We oppose these rule changes for the harm they do to public participation.
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| Does the NRC wish to be autonomous? If so, they will surely be held accountable when safety measures prove insufficient in American nuclear power plants.
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| * LEAR REGIJl ATn~y CO KETING 8 c: - ,, -c ~*
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| FFICE C"-
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| OF T C D11te e
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| r I r rl i 1r' *i .,
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| Docketing & Service Branch Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, n.c. 20555 DOCKETft 50-443/50-4440L near Sir:
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| This letter concerns the proposed rule changes in licensing procedures for nuc lear ?OWer plants. It is clear that these proposed changes are desi gned to get the public o -: t of the licensing process and to speed up lice;sing of ~'Jclear power '. la nts in the Uni ted States, this democratic co~~: ry. We are aware tha t these proposals would:
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| : 1. Raise admissions criteria f or co ~ tentio n s.
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| : 2. Rest:-ict use o f discovery aga*inst NRC staff.
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| : 3. Rest:-ict use of cross-examin atio n during hearings.
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| : 4. Allo*..* Summary Disposition of co nt entions anytime during the lice~sing proceedings .
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| : 5. Li=:: the scope of issues tnat could be appealed.
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| All : hese pr.:;~s als min imize the role and effect of intervenors during lic2~sing p :- 2.: =e dings.
| |
| Raising adm issions cr iteria means t he int e r ve nor basically must prove h is .:ase in .:.:*,an ce. As the rules are no..*, intervenors can hardly get ~KC staf= reports ; comments on license a?plications are gene rally not available.
| |
| This p roposal ~ould ke ep safety info=mation from being brought forward to prot2ct t he ;~jlic.
| |
| By rest=~.:ting the use of disco ~ery against the KRC staf f, the public woul.: have t2 :ake the NRC at its \,*o:-d. L"nde r current law, the NRC staff can ~ e fo rce~ :o justify its concl u s : on s .
| |
| ~est ri c::~g the ~se of cross-ex ~~ inetion means that intervenors wou ld h a v ~ =o obte::..~ spec ia l ?e r mission fr . ~ t~~ hearing judge in orde r to c r o ss-e :, 2 =:. :-: e \,~i t :--. -.-.-- ~ E e s . ? a : e to . : a c e c ;:) :- : r o :i :: 2 : ion i s t h e ? e op 1 e ' s to o 1 f o r g e=: : . ~ g at E=~ :s behinc an applicanc's cl=: s .
| |
| .~llowir:; :=: *.1r;;mary !)isposition ac anyt::..::ie is a blatant disregard ior pub lic inp~:. Pote~:::..al ly,a ll of an interveno rs contentions could be dismissed even bef0=e any h22=ing took place.
| |
| ?inally. :::..miting the scope of issues that could be appealed p4e': er:t s inte~:enors ~::j interests in another party's contentions from contr ibuting to =~e heari~; ? roces5.
| |
| :nterve~:=s are vo ices of concern fo= public safety, a ma tter which the ~~C cont:~ .: :?s to dis regard.
| |
| ~e oppcs5 :hese r u le changes for the ~arm t h ey do to pu bli c participation.
| |
| Does :he ~RC *~* :.sh to b e autonomous, If sc, they will su rely b e held accountable wher: safety ~ f 2 sures p rove insuffic::..en t i~ Am erican nuclear pow er plants.
| |
| | |
| . -* .* "r '
| |
| Docketing & Service Branch Secretary of the Coa1I1ission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 DOCKET/I 50-443/S0-4440L
| |
| | |
| ==Dear Sir:==
| |
| | |
| This letter concerns the proposed rule changes in licensing procedures for nuc lear ?O-wer plants. It is clear t h at these proposed changes are des igne d to ge t the public out of the licensing process and to speed up lice;sing of ~~clear power plants in the Uni ted States, this democratic co L~= ry. ~e are aware that these proposals would:
| |
| : l. Raise admissions criteria for co~tentions.
| |
| : 2. Rest::-ict use of discovery aga*inst NRC staff.
| |
| : 3. Rest~ict use of cross-examination during hearings.
| |
| : 4. Allo- Summary Disposition of contentions anytime during the lice~sing proceedings.
| |
| : 5. Li=:= the scope of issues that could be appealed.
| |
| All =hese pr=; ~sals minimize the role an~ effect of intervenors during lic=~sing p ::- .:=eedi ngs.
| |
| Raisin~ == i ssions criteria means the intervenor ba sically mus t prove h is =ase in a.:~ ance. As the rules are no~, intervenors c an hardly get NRC staf= reports ; comments on license applications are generally not a *ailable.
| |
| This proposal -ould keep safety information from being brought forward to protect t he ;~~lie.
| |
| By rest::-:=ting the use of discovery against the KRC st aff, the pu blic "1,;"0ui..: have t.: ::ake the NRC at its word. l"n der current law, the NRC staff
| |
| * can =e force~ ::o justify its conclusi o ns .
| |
| ~estric:i::g the ~s e of cross-exa ~ ination means th a t intervenors wo u ld hav= to obts i:: special permission fr o~ t te hearing judge in order t o c ross-e :-- 2= ~:-ie \,;~ t:-- . ,:-::se s. ? a =e to :.::ce cor;: :*0:1 ::.=:io n is t he ;:-e ;::- ple 's to ol fo r ge :: i~g at :2::s behinc an appl icant 's claims .
| |
| .~llowi::.~ ~:.:..*:m1ary Disposition at 2nyL::ie is a blata:1t disregard fo r public in?~=. Pote~:ially,all of an intervenors contentions could be dismissed even befc:e any he: ::-ing too k place.
| |
| ?inally. ::miting the scope of issues that could be a!)pealed pr-e\'ents inte ::-.*enors -...- i : ~ interests in another part :* ' s coc1tent ior:s from contr ibuting to t ~ e hear i~~ ?recess .
| |
| interve~::s are voices of concern fo: public safety, a matter wh ich the ~::ZC cont:'.. :: .: es to di sre gard .
| |
| ~e oppcse :hese rule changes for the ~arm they do to public participation.
| |
| Does ::he ~'RC *-*:.sh to be auton omous? If sc, the:-* ,,:ill su rely be held accountable wher: safety = ~ 2 su res p rove insufficie n t ir: American nuclear power plants.
| |
| * Yo u rs truly,
| |
| | |
| Docketing & Service Branch Secretary of the Cormnission U.S. Nuclear Re gulatory Commission Was hi ngton, D.C. 20555 DOCKE.Tfi 50-443/ 50-4440L
| |
| | |
| ==Dear Sir:==
| |
| | |
| This letter concerns the proposed rule changes in licensing procedures for :iuclear ?~~er plants. It is clear that these proposed changes are desi gned to get the public out of the licensing process and to speed up lice:ising of ~~clear power plants in the ~ni ted States, this democratic we are aware that these proposals wou ld :
| |
| Raise admissions crit e ria for co:itentio ns.
| |
| : 2. Rest:-:.ct use of disc overy aga*inst NRG staff.
| |
| : 3. Rest:-:.ct use of cr oss -examinatio n during hearings.
| |
| I, Allo~ Summary Dis ~osition of co nt entions anyt ime during the lice~sing procee c ugs.
| |
| : 5. Li=:.: the scope or issues t h at could be ap pe aled.
| |
| All : nese p:-:; osals cin i~iz e the role anc effect of inte rvenors during lic2~sing p :- : : e eding s.
| |
| Raisinf =jni ssion s criteria means t t e intervenor basically must prove his :ase in a::~ ance. As the rules are no~, intervenors can hardly g e t NRC sta f :: reports ; comments on license applications are generally not available .
| |
| This proposal .ould k eep safety information from being brought fon-: a rd to prc:2c t t he ;~jl ic.
| |
| By rest:-:.=ting th e use of disco v ery against t h e KRC staff, the public
| |
| '-:ot;::: have t : :ake the NRC at its word. r:id er current law, t he NRC staf f car. je force~ :o just ify its conclus i on s.
| |
| ~estri ~ =:. ~g t he ~se of cross-e~ 2rnina:ion means t h at intervenors would ha ~e =o obta:.:-. special permission f ~orn t~e hea r ing judge in o r d er to cro ss-e~ a= ::-.e ~ i t :-.e ffes . Fac e to _ face c o~fro ~=a:ion is t h e ? eo ple's tool for ge:: :. :-.g at fa : :s behi~~ an applicant's cla:.rns .
| |
| .~llowi~; :::-..L---:1.-na r y !)i sposit ion at anyt:.:::ie is a blata:it disrega rd for public in?~=- Pot e~ : : . ally,all of an intervenors ~o nte ntion s could be dismissed even bef~=e any h ea = ing too k place.
| |
| ?inally. ::.miting the scope of i ssues that could be appealed p=e v ent s int,:; :-:enors ..*:. ::- interests in another pare :,*' s c o:it ent ior:s f rom co.n t:-ibut ing to : : e hear i ~~ ?ro cess.
| |
| :nterv e ~ :=s are voi ces of concern fo= public safety, a matt er wh ich the ~~C cont::.. :-.~ es to disregard.
| |
| ~ e oppcse : h ese r ul e chan ge s for the ~ arm they do to public participation.
| |
| Does :he ~"RC *-*:.sh to be auton omo us ? If sc, they \."ill s u rely be held account ab le
| |
| ~her: ~afety =ea su res prove insufficient i~ American n uclear power plants.
| |
| * Yo u rs truly ,
| |
| | |
| Docketing & Service Branch Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 DOC~Tf} 50-443 / 50-4440L
| |
| | |
| ==Dear Sir:==
| |
| | |
| This letter concerns the proposed rule changes in licensing procedures for nuclear ?~wer plants. It is clear that these proposed changes are designed to get the public out of the licensing process and to speed up lic~;sing of ~~clear power plants in the Vni ted States, this democratic co~~:ry. We are aware th a t these proposals would:
| |
| : 1. Raise admissi ons criteria for co~tentio n s.
| |
| : 2. Rest::-ict use of discovery aga*inst NRC staff.
| |
| : 3. Rest::-ict use of cross-examination during hearings.
| |
| ~.
| |
| I, Allo- s~~mary Disposition of co nt entions anytime during the lice~sing proceedings.
| |
| Li=~: the scope of issues that cou ld be appealed.
| |
| All : h ese pr.:;~sa ls minimize the role an~ effect of intervenors durin g lic e~ sing p ::-.:- .:~eding s.
| |
| Raisinf =j issions criteria means t he intervenor basically must prove h is .:ase in c .: *.*ance. As the rules are no-...*, intervenors can hardly get !--."RC staf: reports; cor:iments on license applications are generally no t a~ailable.
| |
| This p r oposal -ould keep safety information from being brou gh t fo rw ard to pr o~ect the ;~jlic.
| |
| By rest::-~.:ting the use of discovery against the KRC st aff, the publ ic woul.: have c.:- :ake the NRC at its \,' ord. rnd er current law, the TRC staff can ~e force~ :o j usti:y its concl u sions.
| |
| ~estric:~~g the ~se of cross-ex amina tion means that i n ter ve nors wo u ld h a ~~ =o o~ts:~ s pe cial ?ermissi on ir o m t~e hearing jud g e in orde r to cross-exa = : ~e ~it~ e ~~e s. F:.:e t o f ace c o~ fro~=acion is t he ?eople's to o l ior
| |
| £ e:: : ~g s t : 2: :s behin~ an appl icant's cl aims .
| |
| ..t. llo\, i~~ ~'.!...--:.uary ~ispo sition at anyt::.:::ie is a blatant disr eg ard for public in?~: . Pote~::2l ly,a ll of an intervenors contentions could be dismissed even bef c:2 any h2: :ing to ok place.
| |
| ?inally. :~miting the scope of issues that could be appealed pre ven ts inte :;-.*enors ,.: ::. ::-i inter e sts in another part:, ' s content ions from contributing to =~ 2 heari~~ ?recess.
| |
| :nterve~~=-s are voice s of concern fo: public safet y, a ma tter whi ch the ~~C cont~:-. ~2s to dis re gard.
| |
| ~e op pose : hes e r u le chan ges for the ~a rm they do to public partici pa tion.
| |
| Does :he XRC ~~sh to be auton omous? If so, they ~ill sure l y e held acc oun t ab le
| |
| ~he~ safety = f2 s u res prove insu f fici en t i~ Ame rican nuclear power plants.
| |
| * Your s truly,
| |
| | |
| Docketing & Service Branch Secretary of the Comnission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 DOCKETfi 50-443/50-4440L
| |
| | |
| ==Dear Sir:==
| |
| | |
| This letter concerns the proposed rule changes in licensing procedures for nuclear ?CTwer plants. It is clear that these proposed changes are designed to get the public out of the licensing process and to speed up lice~sing of ~~clear power plants in t he ~nited States, this democratic coi.::-.:ry. We are aware that these pro :Josals would:
| |
| : 1. Raise admissions criteria .:>r co:-itentions.
| |
| : 2. Rest:- i ct use of discover Jgainst NRC staff.
| |
| : 3. Rest:-ict use of cross-F ,i nation during hearings.
| |
| All o. Summary Disposi
| |
| * of contentions anytime during the lice:-.sing proceedin r
| |
| : 5. Li=::: the scope of Jes that could be appealed.
| |
| All : hese pr~;~sals mini~ the role anc effect of i nte rvenors duri ng lic 2:-.sin g pr~~eedings.
| |
| Raisin~ :dcissior 4t eri a means the intervenor basically mu st prove his ~ase in c.:,, a n ce. t he ru les are no;.* , intervenors can hardly get ,'RC staf:: reports ; COI!l:ll e o n lic ense applications are generally n ot avai lable.
| |
| This ?roposal '-'Ou :1 .* Kee p sa f ety inf o rmation from being brought f orw a r d to pro:ect the ;~j* * ~.
| |
| By rest:-~ _ing the u se of disc o very against the KRC staff, the public woui..: have c.~ ::ake t he NRC at its \,'ord. rnder current law, t he NRC staff
| |
| * can ~e forc e ~ ::0 jus ti f y its concl usi o ns.
| |
| ~e stri c : ~~g t he ~ se of cross-e ~a~ ina:i on oean s t ha : inte=venors would have co obta~ ~ spe c ial ? ermission i p: ~ t ~2 he aring judge in o =d er to c ross-exa = ::-.e wi t ~ 2 ~,_;2s. Fa : e to fsce c c~ f r o~ :a: ion is t he ?22?le's to o l :or ge::~:-. g at f a: :s ~e ~ i~c an applic an t's cla:cs.
| |
| _q lowir:~ := -..:....--:za ry Di sposition a t an y t:::::e is a blat2nt disregard : o r public in?~=. Pote~::ally , al l of an intervenors contentions c ou ld be dismissed even befc=e any hea:-ing took place.
| |
| ?inally, ::.~it in g the scope of issues that could be appealed pre ~en:s inte~:enors ~::: ~ in terests in another part y' s co n tentior:s from contr:buting to c~ e heari~~ ?roce ss.
| |
| :nterve:-.::- s a re voices of concern fo= ?ublic safety, a na tter ~ hi ch the ~~C cont:.:-. ..: es t o disregard.
| |
| ~e oppose : hes e rule changes for the ~a rm t h ey do to public participation.
| |
| Does ::he NRC ~~s h t o be auton omo us? If sc. t hev ~ill si.:relv b e held ac cou ntable
| |
| ..*her. safety ::: -;; 2 s u r es prove ins uf fic ien t i ,.
| |
| * _~;n er.ican n uclear* power pl a nts.
| |
| * truly,
| |
| | |
| I* "'
| |
| Docketing & Service Branch Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 DOCKETfi 50-443/S0-4440L
| |
| | |
| ==Dear Sir:==
| |
| | |
| This letter concerns the proposed rule changes in licensing procedures for nuclear ?~wer plants. It is clear that these proposed changes are designed to get the public out of the licensing process and to speed up lice:1sing of :: *.J clear power plant , in the Vni ted States, this de mocratic co~:::ry. We are aware that thF .e proposals would:
| |
| : 1. Raise admissions C,- c! ria for co :1tentions.
| |
| : 2. Rest:-ict use of d ,very aga*ins t NRC staff.
| |
| : 3. Rest:- ic t use of s-examination during hearings.
| |
| : 4. Allo*~- Summary ' J S it ion of contentions anytime during the lice:-:sing pre-, ings.
| |
| : 5. Li=:.: the S C of issues that could be appealed.
| |
| All :hese pr.:=~sal8 i ~imi ze the role an~ effect of intervenors during lic2 :: sing p :-:-.:eed i 5.
| |
| Raising adr ' J si o ~ s criteria means t he intervenor basically must prove h is .:ase in c.:: * .::n ee. As the rules are no;,.*, intervenors can hardly get :::-..~c staf:: report,, : comme n ts on license a?plications are generally not ava ilab le.
| |
| This propos ~l ~ould keep safety info:-mation from being brought fon-ard to protect t he =~jlic.
| |
| By re,::-:.=ting the use of disco v ery against the NRC staff, the public woul.: have t: :ake t h e NRC at its word. l.."n der current law, the NRC staff
| |
| * can je force~ :o justify its concl us io ns.
| |
| ?:estri c ::.:-.g the ...: se of cross-e:-::c:-:iin ation means that intervenors ,,*o u l d have to obta:.:- special ?errn ission f :~ tte hearing judge in order to cro s s-ex~ = : ~e w* t :-~ f~es. ? a.:e t o :a c e c : ::: r o~ :a: ion is t he peo ple's tool for ge:: :. :- g at :a: :s beh i ~c an applicant ' s cla:.ms.
| |
| _.!_lloi*: i:-; ~-.i.:imary :)isposition at anyt:.:::ie is a blatant disregard for p ub lic inp~ :. Pote:-:~al ly,a ll of an intervenors contentions could be dismissed even bef~=e any ~ ea=i ng too k place.
| |
| ?inally. ::.miting the scope of issues that could be appealed pre*:er.ts inte~:enors w:.:~ interests in another party's contentions from contr ibuting to t ~ e hear i ::; ?recess.
| |
| :nterve:- ::-s are vo ices of conce rn fo:- publ ic s afety, a matter whi c h the ~~C cont:.:-. .: es to dis reg ard .
| |
| ~e oppcse these rule changes for the ~a rm they do to public participation.
| |
| Does : he ~"RC *.*:.sh to be autonomous? If sc, they ~*ill surely be held acco un t ab le whee ~afety =~a sures prove insuffic:.ent ic Ame rican nuclear power pl a ~ts.
| |
| Yo u rs truly,
| |
| | |
| Docketing & Service Branch Secretary of the Comm i ssion U.S. Nuclear Reg u la tory Comm is sion Washington , D.C . 20 5 55 DOCKET# 50-443/50-444 0 L De a r Sir:
| |
| This letter c oncern s t he pro posed r ule c h ange s i n licensing p r ocedure s for nu cl ea r pow er plants . It is clear t hat t h e se proposed change s are designed to get the publ ic ou t of t he licensing proc e ss an d to speed up l icen sin g of n uclear power plants in th e Un i ted St a tes , this demo cra ti c co u~ try . We a re aware that the s e proposals would :
| |
| * 1.
| |
| 2.
| |
| 3.
| |
| 4.
| |
| 5.
| |
| Raise adm i ssion s criter i a fo r content i ons .
| |
| Restrict use of discov er y against NRC staff.
| |
| Restrict use of cross-examinatio n during hearings.
| |
| All a~ Summary Disposit i on of cont en tion s a nyt ime durin g the li ce~si ng proce edin g s .
| |
| Li i t the s cope of issues that co u ld be appea l e d.
| |
| All these pr o?os als min imi ze the r o le and e ffect of intervenors durin g lic en sing pr ~e ed ings.
| |
| Ra i sing adm issions crit e ria means t he i n terv e nor basically mus t prove h i s case in adv an ce . As t he ru l es are now, inter ve no r s can hardly ge t :t\KC sta ff report s ; commen t s on license app l i ca tions are generally not ava il able.
| |
| This proposal wou ld kee p safety information from being b rou gh t forwa rd t o pr otec t the p 1b lic .
| |
| By restr ic ting the us e of d iscove r y aga in st the NRC s t aff, t h e public woul.::: have t o take t he NRC at i t s wo rd. *nde r current law, the NRC s t af f can je f o rc e~ t o justify its concl usion s .
| |
| Res t ri c : ::..ng th e cs e of c ross-ex amin a tion means t hat intervenors wo u ld have to obta::..~ s pec i al pe r miss ion f r om t he he a r in g jud ge in o r de r to cr o ss -
| |
| uxa~:~e wi t ~~sse s . Face t o ~ace conf ro :-i t ati on i s t he people ' s t oo l f or get:::..ng a t ~2~ : s behind an a pp lic a nt' s cl a::..o s .
| |
| .-Ulowi n,; 5wnmary Di s posi tion at anyt i uie is a blatant d i sre gard for pu b l ic i np~ :. Pot er : : . a lly, a ll of an int erveno r s c on t en t ions could be dis misse d ev en be fo ::-e a ny he2 ::- i ng t o ok place .
| |
| Finally, l im itin g the sco pe of issue s that could be appealed preve n ts int e ::-*,* enors \.;::._i: h int eres t s in another pa r t~-' s c ontentions from co n trib u ti :-ig to t ~ e heari~ I ?recess.
| |
| In t e r ven o ::-s are vo ices of con cern f or pu bli c s af e t y, a matte r whic h the ~~C conti:-. 'J es to dis re g a rd.
| |
| ~ e opp o se thes e rul e changes for the ~a rm they do to public particip a ti on .
| |
| Does che NRC ~::.s h to b e autonomous ? If s o , t h ey wi ll su rel y be held acc ou t ab le when safety cea su res p rove insufficient i n Am e ri ca n nuc l ea r powe r p l ants .
| |
| Yours trul y,
| |
| | |
| Docketing & Service Branch Secretary of the Commission U.S. Nuclear Regulatory Commission Was h ington, n.c. 20555 DOCKETi'i 50-443/S0-4440L
| |
| | |
| ==Dear Sir:==
| |
| | |
| This letter concerns the proposed rule changes in licensing procedures for n uclear ?~wer plants. It is clear that these proposed changes are des i~ned to g et the public out of the licensing process and to speed up 1 l. C ~:
| |
| _ * . s 1*n g o~* -.. -:.i ~-lear power plants in the 1,n- ited States, th i s d emocrat i c c o ~~ :ry. We a re aware that these propos a ls wou l d:
| |
| : 1. Raise admissions criteria for co n ten t io ns.
| |
| : 2. Rest= i ct use of discovery a g ainst NRC staff.
| |
| : 3. Rest= i ct use of cross-examinatio n during hearings .
| |
| : 4. All o. Summary Disposition of co r.t entions anyt ime during t h e l ic e ~ s i ng p roceedings.
| |
| : 5. Li =:: the s co pe of issues t n at cou ld b e a ppealed.
| |
| All :: hese p r =;~ sals minimize t h e role a n~ effe c t of intervenors during l ic:~s i ng p r: :e edings.
| |
| Rais i n f 238issions criteria mea n s t t e int e r v enor ba sic a lly mu s t pro ve h i s : a se i n c.:*,*ance. As t h e rules a r e no*"* , int e r ve n o rs can ha rdly g e t NRC staf:: reports ; comme n ts on license a ? p li ca tions a re gen era lly no t available.
| |
| Th i s p r o po sa l ~ ould k eep safety in format ion from b e ing brought fon~ard t o pr c ::e c t t h e ;~j lic.
| |
| By restr : =ting the use of discov ery ag ainst the .*Re s taff , the pub l i c
| |
| ..,-oi.;::. .: have i: .:- :: ake t h e NRC at its wo rd. ~.-:-ider c u rrent l aw, the NRC s t a ff can ~e fo rc e~ :: o j ust i fy it s c o ncl usio ns.
| |
| ~es tr ic::~g t h e ~s e of cr oss - ex2~ina:ion means tha t in t erveno r s wou ld ha~~ co ob t a:.~ special ?ermission fr ~m t ~: h ea r ing judge i n o r d er to c ross-ex~=~ ~e ~it~ ~~ ~es . Fa: e t o tace co~tro~: a : ion is t he ? e c ple's tool fo r ge : :~~g a t :=:::s behinc an app lic an t ' s c la: s.
| |
| _;llowi~~ ~ -..1=1."lla r y ~ i spo s i tion at anyt:::ie is a bl atan t d i s rega rd io r pub l i c in?~ =- Pote~:::.al l y, a l l o f an inter veno rs : onten t ion s cou ld be d ismi ssed e v en be f~ =e any hea = i ng too k place.
| |
| ? ina ll y . :~mitin g the scope of issues that c ou ld b e appe ale d pre ven ts ince~: e nors ~: :: ~ interests in a nothe r par cy 's con tenti on s f rom c on tr ibu t ing to :~e he a r i~~ ? ro c es5 .
| |
| :n terve~:=s are vo ices o f c onc ern for public safety , a ma tter ~ h ich th e ~~C cont:~ ~e s to di sre g ard.
| |
| ~ e oppcse ch ese r u le cha ng es fo r the ~arm th e y do to publ ic pa r t i c i pa t ion .
| |
| Does : he XRC *~*:. s h to b e a u ton omo us? If sc, t hey ;...* ill su r e l y b e h el d a ccoun t a::>le
| |
| ~ he~ ~afecy ~ ~asu res p r ove insuf f ic :.e~ t i~ American n ucle a r pow er p l an t s.
| |
| * Yo u r s t ru l y ,
| |
| | |
| Docketing & Service Branch Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 DOC:Q:Tft 50-443/50-4440L
| |
| | |
| ==Dear Sir:==
| |
| | |
| This letter concerns the proposed rule changes in licensing procedures for n uclear ?CT<<er plants. It is clear that these proposed changes are desi gn ed to get the public out of the licensing process and to speed up l ice ~ s in g o: ~~clear power plants in the ~nited States, th i s de mocratic co ~:-::ry. we are aware that these proposals would:
| |
| * 1.
| |
| 2.
| |
| 3.
| |
| 4.
| |
| 5.
| |
| Raise admissions criteria for co~tentions.
| |
| Res:::- i ct use of discovery aga*inst NRC staff.
| |
| Rest:- ~ct use of cross-examinatio n during hearings.
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| All .:,*_* Summary Disposition of co n tentions anytime during the lice~sing proceedings.
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| Li=~: the scope of issues that c o uld be appea l ed.
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| Al l : h ese p :- : ; ~sals minimize the role anc ef fect of int erveno rs d uring lic 2~ sing p :-.: :e edings.
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| Raisinf ==cissions criteria means the interv enor basicall y mu st pro ve his .:ase i n -=. .: *.*a n ce. As the rules are n o;..* , inter venors can hardly get NRC staf: reports: comments on license applications are ge n erally not a ,ai la b le.
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| This p rop o sa l ~ o uld k eep safety inf o :-matio n fro m bei ng b rou ght fo n-: a r d t o pr c ::ect t h e ; ~j lic.
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| By rest:- ~.:ting the use of disco very against the .~C staff, the ? ubl i c wou ::..: have !:.: :ake the NRG a t its \,o r d . i_*nder current law, the NRG s t a ff ca n j e fo rc e ~ :o justify its concl us io ns.
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| ~es tr ic : :.~g the ~ se o f c ross-e ~ 2 in ati on me a ns t ha t i n te r v e nors wo u l d ha *.*-= ::o ob :. =:. :-. s pec i al ;, e r-mis si o n f : :i ;;i t:-.e he ar ing j udg e in o r d er co c ros s -
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| e :~ 2 = : :-e \,i t :-.,:c .;:.;:2- s. F2:: e t:o _ :::.::c e c c :-: .:: 1*0 :1 : =:ion is t he ?e o p le's t ool i or s e :: ~~g a t ::: 2: :s b e h i nc a n ~pp lic a:: ~ ' s c i= ~ms .
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| .-~ l l owi ~ ~ :::..:::-.:nary ~ is p si tion a t anyti ::ie is a blata n t d i sre gard fo r public in?~ :. Po t e~ : i a l ly,all o f ~n i n te r v enors contentions could be dismi ssed even bef c :- e any he~ =ing too k p l a c e.
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| ? i nally. :~miting th e s c o ?e of issues that c ould be appealed p rev en ts int e ::-.*enors ..- ~ : :, interest s in ano ther part :*: ' s co n tent io n s from contr ibu t in g t o : ~e hear i~~ ?recess.
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| : nter ve~~ =-s are v o i ces of c once r n fo = pub l ic s a fe ty, a ma tter ~ hi c h t he ~~ C con t ~:-. .: es to disr e ~a r d .
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| ~e op pcse :: h ese r u le c han~e s for the ~a rm t h ey d o to public par ti c ipa ti on .
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| Does : h e :-."RC *~* :s h to b e a *u11: on c r:1ous ? If s c . theY \.."ill s urely b e held ac co un t able
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| ~ he r: s a f et y =-= 2 .:; u res p ro ve ins L;f fi c ien t i :-. * ..\me r .ic a n n uc lear* pow er p l a n t s .
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| * You rs trul y ,
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| Docketing & Service Branch Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 DOCKET# 50-443/50-4440L
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| ==Dear Sir:==
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| This letter concerns the proposed rule changes in licensing procedures for nuclear ?OWer plants. It is clear that these proposed changes are designed to get the public out of the licensing process and to speed up lice::-ising of ~~clear power plants in the ~ nited States, this democratic co~~:ry. We are aware that these proposals would:
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| : 1. Raise admissions criteria for co::-itentions.
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| : 2. Rest::-ict use of discovery aga*inst NRC staff.
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| : 3. Rest::-ict use of cross-examinatio n during hearings.
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| : 4. All o*..* Summary Disposition of contentions anytime during the lice~sing proceedings.
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| : 5. Li=:: the scope of issues tnat could be appealed.
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| All : h ese pr;;~sals minimize t h e role an~ effect of intervenor s during lic2~sing pr2;eedings.
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| Raisin~ :draissions criteria means t he intervenor basically must prove his ;ase in c.:*,*ance, As the rules are no;..*, intervenors can hardly get ,"RC staf::: reports; comments on license applications are generally not available.
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| This proposal ~ould k eep safety informaticn from being brought forward to protect the ;~~lie.
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| By rest~:=ting the use of disco v ery ag ainst the KRC staff, the public woui.: have t2 :ake the NRC at its \s"Ord. *.::1der current law, the NRC staff can ~e force~ :o justify its conclus ion s.
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| ~estric::~g the ~s e of c::-oss-ex2rnina:ion mean s that intervenors would hav2 ~o obta~~ special ?ermis s ion fr ~c tt 2 hearing judge in orde r to cross-exa = :~e ~i t ~~~se s. ?a;e c o _ ~s e e co~ ~r o~ : a : ion is t he ?eople' s tool for g e::~~g a t : : ~:s behi~c an ap?licant's cls:ms.
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| _qlowi:.f :=:mma ry !)isposition at anyt:::ie is a blatant disregard for public in?~=- Pote~::ally,all of an intervenors contentions could be dismissed even bef0=2 any h2= =ing took place.
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| ?inally. ::miting the scope of issue:: that could be appealed pre*:er.ts inte~:enors w~:~ interests in another parcy's contentions from contrib uting to t ~ 2 heari~~ ?recess.
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| :nterve~:=s are voices of concern fo= public safe ty, a mat ter which the ~~C cont: :-. .: 2s to disregard.
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| ~e oppcs~ ~hese rule changes for the ~arm they do to public partici?ation.
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| Does :he ~RC *~*:sh to be auton c::ious? If s c, they will surely be held acc oun t abl e whee 5afet y ~ iasu res prove insufficient i~ Americ an nuclear power plants.
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| Yo ur s truly,
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| Doc keting & Se r v i c e Br a nch Secret a ry of t h e Comm ission U.S . Nu c l ear Reg u l ator y Comm i ss ion Wa s h i ng t on, D. C . 20555 DOCKETif 5 0 -44 3/ 50 -4440L Uear Si r :
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| Th i s lette r conce r n s the pr oposed rule c hanges i n licen s ing proced u r e s for nuc l e ar pow e r plant s. It i s clea r t h at t hese p ro posed c ha n g es a r e des igne d to get the public out of the licens i ng p r o c ess a nd to spee d up lice~sing of nu cle ar power pl an ts i n t he ni ted Sta t es, t his deDoc ra t ic councry. We ar e awar e t h a t these proposa ls would:
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| ** 1.
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| 2.
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| 3.
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| ..,I J .
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| Raise a dmissio n s crite r ia f or c onte n ti o ns .
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| Restr i ct use of discov er y a gainst NRC staff .
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| Res tri ct use of cr o ss-ex am inati on d ur i ng hearin g s .
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| All ow Summary Di s posit i on o f c on tentio ns a nytime d urin g the l ice~ s i ng pr oce e d in g s .
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| Limi~ t he s cope o f issues t ha t cou ld be appea l e d.
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| All t~ese p r O?J sa l s mi nimi z e the r o l e an d e f fec t o f intervenors d u rin g lice ns ing p r o2ee di n g s .
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| Ra i sing adm i ssi o ns cri t e r i a mea ns t he i nte r ve n o r bas i ca ll y mu s t p r ove h i s ca se in sc~anc e . As t h e r u l es a r e now, i nt er ve no rs ca n hardl y ge t NRC s taf f reports ; comments on licens e appl ica tions a r e ge n e r a l ly no t avai l abl e.
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| Thi s prop osa l wo u l d ke ep safety i n for mat ion f r om be ing b r ou ght forwar d to prot ect th e p~j lic .
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| By rest ric ting t h e use of dis c ove r y a g ain s t the NRC st af f, t he pub lic wou l c h ave t o cake t h e NRC at i t s word . Un de r c urrent l aw, t he NRC s t a ff can be forced co j us tify i t s conclusions .
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| ~e s t ric t:~g t h e us e of c ross - exam i na t ion means t ha t in t er veno rs would have : o obta:~ spec i al permission f r om t he hea rin g judge in o r de r co c r oss -
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| exa~ ~~ e witn 23 3es . Face t o face conf r o~ ca tion is th e peop le' s tool for ge tt: ~; a t f a~ ::s behinc an appl i ca n t 's c laims .
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| ..:.. llowin g ~-JIT1mary Disposit i o n a t an y t ime is a b l atan t d i s r egard for !) ' b lic inpu ::. Pote n:~a l l y , al l of a n in terveno r s con t entions coul d be di sm issed eve n befo= e a ny he a = i ng t ook p l a ce .
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| ?:na ll y , ~irni t in g t he s co pe o f issues t ha t cou l d be appealed p reve n ts in ter*:eno rs ,._- ~=~ int ere sts in a no t he r pa rt y ' s conten t ions f r om c o~ t r i bu t ing t o t ~e hear i n; ~rocess .
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| :~te r ve nc =s a r e vo ices of con c ern for publi c s af e ty, a ma tter which t he ~:-. C con t i ~*_: es t o dis re ga rd .
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| ~; e op pose - he se r u le c hang e s fo r the ha rm they do t o publi c partici pa t ion .
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| Does :: ~e NRC w:sh t o be a ut onomous? If s o , th ey wil l su r e l y be held accountable w~e n 3a fe t y cea sure s prove insufficient i n Ame ri ca n nuclea r power p l a nts .
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| SHAW, PITTMAN, POTTS & TROWBRIDGE DO CKETED A P ARTN ERSHIP INCLUDING PROF"ESS IONAL CORPORATIONS USNnc 2300 N STREET, N. W .
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| TE LEX/C ABLE WASHINGTON , D. C . 20037 1 89 -2693 (S HAWLAW WSH)
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| -~ .'.:tlCfR:l"G'~!J?J2 :58 MCLEAN, VIRGINIA 22 102 TELEPHONE (703) 790-7 900 (202) 663 -8000 CFF I,. TE LEC OP I ER ZAP MAI L
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| @g~ 2~313760 & 223 -3 761 (202) 775-0 3 38 October 17, 1986 .,
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| Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Docketing and Service Branch Proposed Rule Amending 10 C.F.R. Part 2
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| * Procedural Changes in the Hearing Process (51 Fed. Reg.
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| ==Dear Sir:==
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| On July 3, 1986, the Nuclear Regulatory Commission published and invited comments on a proposed rule to amend the NRC's Rules 24,365) of Practice. 51 Fed. Reg. 24,365 (1986). Five changes to the hearing process are proposed and address 1) the admission of con-tentions; 2) discovery against the NRC Staff; 3) the use of cross-examination plans; 4) timing of motions for summary dispo-sition; and 5) limitations on intervenors' filings of proposed findings of fact, conclusions of law, and appellate briefs. The purpose of the amendments is to improve the licensing process for nuclear power plants.
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| We are pleased to submit these comments on behalf of The Cleveland Electric Illuminating Company (CEI). CEI is the opera-tor and co-owner of the Perry Nuclear Power Plant and a co-owner of the Davis-Besse and Beaver Valley nuclear power plants.
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| CEI generally supports the proposed rule. The current hear-ing process has proven to be inadequate. Indeed, the Chairman of the NRC's Regulatory Reform Task Force has characterized the pro-cess as a "quagmire." The Commission's proposed rule -- particu-larly the higher threshold for the admission of contentions --
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| goes a long way toward correcting the failings of the current process. Accordingly, the Commission should adopt the proposed amendments. Specific comments and a number of suggestions to im-prove the proposed amendments are set forth below.
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| While the proposed amendments will considerably improve the licensing process, more is needed to eliminate its current inef-ficiency. The presently proposed amendments should be viewed only as a good first step toward reform. The Commission must continue to pursue other licensing reform initiatives, such as OCT 2 2 198
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| 10 IIY/11
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| (
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| f
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| SHAW, PITTMAN, POTTS & TROWBRIDGE A PARTNERSHIP INCLUDING PRQ,-ESSIONAL CORPORATIONS the elimination of the two-phase reactor licensing process, in order to return to a workable system.
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| The Proposed Amendments
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| : 1. Admission of Contentions Clearly, one of the most significant obstacles to an effi-cient hearing process is the present standard for the admission of contentions. Under the current Rules of Practice, a conten-tion will be admitted if an intervenor states a basis for the contention with reasonable specificity. 10 C.F.R. S 2.714(b).
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| This standard has been construed to require an intervenor to do no more than state a reason for the contention. Houston Lighting
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| & Power Co. (Allens Creek Nuclear Generating Station, Unit 1),
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| ALAB-590, 11 N.R.C. 542, 548 (1980). If this standard is met, a licensing board is not permitted to reject the contention no mat-ter how insubstantial that contention may be. Washington Public Power Supply System (WPPSS Nuclear Project No. 1), LBP-83-66, 18 N.R.C. 780, 789 (1983).
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| Contentions may in fact simply be copied from other proceed-ings. Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), LBP-80-30, 12 N.R.C. 683, 686-90 (1980). Allega-tions in a contention may be utterly inconceivable, but a licens-ing board may nevertheless find itself obliged to admit the con-tention. S e e , ~ , Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant, Units 1 and 2), LBP-82-119A, 16 N.R.C. 2069, 2103 (1982). Neither inquiry into the merits of the contentions nor inquiry into an intervenor's ability to support or prosecute its contentions is permitted. Allens Creek, supra, 11 N.R.C. at 548; Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 and 2), ALAB-182, 7 A.E.C. 210, 216 (1974) .
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| Once contentions are admitted, an intervenor may seek dis-covery of any matter generally relevant to the admitted conten-tions. The process encourages an intervenor to plead every con-ceivable contention, irrespective of support, and then use discovery as a fishing expedition in the hope of uncovering some issue it can pursue. As a result, licensing boards have increas-ingly been deluged with contentions. S e e , ~ , Shearon Harris, supra, 16 N.R.C. at 2074 (334 contentions proposed by petition-ers.) After discovery, which in itself is a lengthy and expen-sive process, the license applicant must either seek summary dis-position of each contention, or litigate its merits. These procedures are cumbersome, time-consuming, and result in consid-erable resources being devoted to demonstrably insubstantial issues.
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| SHAW, PITTMAN, POTTS & TROWBRIDGE A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS The proposed rule would amend 10 C.F.R. S 2.714 to raise the threshold for the admission of contentions. Under the proposed rule, the proponent of a contention would be required to show the existence of a genuine dispute with regard to a material issue of fact. The proponent of a contention would accomplish this by providing information -- including an explanation of the bases of the contention, a concise statement of the alleged facts, expert opinion, and references which support the contention, and refer-ences to pertinent portions of the licensing documents suffi-cient to prompt reasonable minds to inquire further as to the va-lidity of the contention.
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| This change is clearly the most significant provision of the proposed rule. If properly applied, it would eliminate frivolous contentions at the outset of a proceeding. The hearing would be better focused and more efficient. Decision-making would be im-proved, since the resources of all parties (including the NRC staff) and the resources of the licensing board would be devoted to issues worthy of pursuit rather than being unreasonably di-verted.
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| The standard the Commission has chosen to accomplish these objectives is well-founded. Essentially the same standard was articulated in Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-123, 6 A.E.C. 331, 345 (1975), and upheld by the Supreme Court in Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S.
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| 519, 553-55 (1978). See also Costle v. Pacific Legal Foundation, 445 U.S. 198, 214 (1980);Weinberger v. Hynson, Westcott &
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| Dunning, Inc., 412 U.S. 609, 620-21 (1973). In the same vein, the courts have made it clear that hearing rights are not abso-lute, but may be circumscribed by reasonable procedural require-ments. BPI v. AEC, 502 F.2d 424, 428-29 (D.C. Cir. 1974); Office of Communications of the United Church of Christ v. FCC, 359 F.2d 994, 1005-06 (D.C. Cir. 1966). The proposed amendment to 10 C.F.R. S 2,714 is thus fundamentally sound and should be adopted.
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| : 2. Discovery Against the NRC Staff The second provision of the Commission's proposed rule would amend Section 2.720(h)(2)(ii) to codify two precedents regarding responses to interrogatories: (1) that it is an adequate response to identify a specific source where the requested information can be found (Metropolitan Edison Co. (Three Mile Island Nuclear Sta-tion, Unit No, 1), CLI-79-8, 10 N.R.C. 141, 147-48 (1979)); and (2) that a party is not required to engage in extensive indepen-dent research to respond to an interrogatory (Pennsylvania Power and Light Co. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613, 12 N,R,C. 317, 334 (1980)).
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| SHAW, PITTMAN, POTTS & TROWBRIDGE A PARTNERSHIP JNCWDING PROFESSIONAL CORPORATIONS These precedents are well-recognized, both in NRC practice and in Federal Court practice. Both precedents reduce the burden of discovery. Codifying the precedents will encourage their use.
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| Several changes to the proposed rule, however, are necessary to codify the precedent accurately.
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| Under the proposed rule, the presiding officer must deter-mine that the information requested by an interrogatory is not reasonably available from any other source (such as the NRC's public document room) before the NRC Staff is required to re-spond. This procedure is not consistent with NRC precedent, since it converts a method of response (i.e., citation to a spe-cific document) into a grounds for non-response. As a practical matter, a Licensing Board is unlikely to be able to determine on its own whether information requested by an interrogatory is
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| * available in the public document room or from other sources.
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| This inability might in turn prompt a flurry of pleadings and ar-guments between parties and the NRC Staff in order to determine the NRC Staff's duty to respond. Arguably, the Staff might have to identify the location and content of a particular document in order to show that the information is available from other sources, and in such cases the Staff might just as well have re-sponded at the outset. It would therefore be more practical and truer to precedent to instead have the NRC Staff determine in the first instance whether information requested by an interrogatory is available from other sources and if so to respond to the interrogatory by citation.
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| In addition, the proposed rule states too broadly the precedent that a party is not required to perform additional re-search to respond to an interrogatory. First, the proposed rule would prevent inquiry concerninq why the Staff did not use a dif-ferent analysis in its review of a license application. Such an interrogatory seeks an explanation, not necessarily further re-search, and may therefore be legitimate. Second, the proposed rule prohibits interrogatories requiring the performance of addi-tional research or analytical work "beyond that which is needed to support the NRC staff's position on any particular matter."
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| The quoted phrase invites argument about what is "necessary" and unduly limits the objection. The phrase should be stricken.
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| The precedents in CLI-79-8 and ALAB-613 are applicable to all parties, not just the NRC Staff. Codifying these precedents with regard only to the NRC Staff might suggest otherwise. We therefore recommend either that 10 C.F.R. S 2.740(b) also be amended to codify the two precedents, or that the statement of consideration accompanying the final rule make it clear that the precedents continue to apply to other parties.
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| SHAW, PITTMAN, POTTS & TROWBRIDGE A PARTNERSHIP INCLUDING PROFESSIONAL CORPDRATJONS
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| : 3. Cross-Examination Plans The third provision of the proposed rule would amend Section 2.743 of the Rules of Practice to require a party to obtain the permission of the presiding officer in order to conduct cross-examination. It would further bar the presiding officer from considering such a request unless the request was accompanied by a cross-examination plan containing specified in-formation.
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| This proposal is constructive and would considerably improve the hearing process. Cross-examination is frequently conducted by lay intervenors with little or no experience in legal proceed-ings. Such intervenors often spend considerable time asking ir-relevant, repetitive, or unfocused questions. Poor cross-examination in turn clutters the record and protracts the proceeding. Requiring the preparation of cross-examination plans would force a party desiring to conduct cross-examination to think out the questions in advance and would result in better questioning and a shortened proceeding. Indeed, past experience has demonstrated that cross-examination plans improve the quality and focus of cross-examination, improve a licensinq board's abil-ity to control the proceedinq, and create a better-record for de-cision making. Cotter, Nuclear Licensing; Innovation Through Evolution in Administrative Hearings, 34 Ad. L. Rev. 497, 519 (1982).
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| While this provision is worthwhile, the Commission should further amend Section 2.743 to bar an intervenor from conducting cross-examination on issues which the intervenor did not place in controversy. This additional amendment would be consistent with the other Commission proposals (discussed below) to limit an in-
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| * tervenor's findings of fact and appeals to issues which that in-tervenor placed in controversy.
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| cross-examination.
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| It would eliminate repetitious It would also reduce cross-examination of non-adverse witnesses(~ one intervenor cross-examining anoth-er intervenor's witnesses), which is a practice that wastes time and contributes little to the record. The Commission should sim-ilarly consider initiating another rulemaking proceeding to amend its rules to bar an intervenor from engaging in discovery and proffering evidence addressing contentions of other parties. The provision should also be modified to make cross-examination plans available to other parties following completion of cross-examination, rather than keeping them confidential until certification of the appeal record.
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| SHAW, PITTMAN, POTTS & TROWBRIDGE A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
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| : 4. Authority of Presiding Office to Dispose Of Certain Issues on the Pleadings Under the fourth provision of the proposed rule, section 2.749(a) of the Rules of Practice would be amended to permit mo-tions for summary disposition to be filed at any time during the proceeding. This amendment would provide greater flexibility in the hearing process. It would promote efficiency, since it would permit the resolution of issues at any point when it becomes ap-parent that further prosecution is unnecessary. Section 2.749(c) would continue to protect a party who for valid reasons cannot respond to a motion for summary disposition, and would thus pro-vide sufficient protection against inopportune motions.
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| : 5. Proposed Findings and Conclusions, and Appeals to the Commission From Initial Decisions The Commission's last proposal is to amend Sections 2.754(c) and 2.762(d) to limit an intervenor's proposed findings and ap-peals to issues that the intervenor placed in controversy. This amendment too would significantly improve the hearing process.
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| It would ensure that such filings are submitted by parties who have a real concern and interest in the resolution of the issues.
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| It would also eliminate redundant filings. There is simply no justification for requiring licensing board and appeal board judges to read and respond to multiple sets of proposed findings and briefs. CEI urges the Commission not only to adopt this pol-icy, but as discussed above to initiate another rulemaking pro-ceeding to similarly limit an intervenor's right to conduct dis-covery and proffer evidence to those issues that the intervenor placed in controversy. To the extent that the proposal can be read to allow proposed findings on rejected contentions (i.e.,
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| * matters "sought to be placed in controversy"), the final rule should be clarified to exclude this possibility as well as the possibility that an appeal brief include merits consideration of rejected contentions.
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| Proposals of Commissioner Asselstine In addition to the provi~ions discussed above, the Commis-sion's July 3, 1986 Federal Register notice requested comments on alternative amendments to 10 C.F.R. Part 2 proposed by Commis-sioner Asselstine. These alternative proposals are ill-advised and would not improve the efficiency of the hearing process.
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| In essence, Commissioner Asselstine proposes permitting any person with standing to become a party to a proceeding. All admitted parties would then have ninety days to formulate SHAW, PITTMAN, POTTS & TROWBRIDGE A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS contentions. The proposed contentions would undergo an "initial screening" and would be "provisionally" admitted if the facts al-leged would entitle the intervenor to relief if true. The inter-venor would then be entitled to full discovery on all such con-tentions.
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| These proposals would hopelessly entrammel the hearing pro-cess. They would substantially increase both the number of par-ties and the number of contentions admitted in a proceeding, without any countervailing benefit. At a time when the hearing process has been found unacceptably inefficient -- particularly with respect to its inability to screen out frivolous issues--
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| Commissioner Asselstine's proposals would reduce the standard for admitting contentions; under his proposed standard, an intervenor would not even be required to provide a basis or reason in sup-port of a contention. Such a rule would not only condone but ac-tually encourage the filing of contentions that have no basis whatsoever -- contentions filed simply to permit a fishing expe-dition during discovery.
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| *with respect to the proposal to admit as a party any person with standing, Commissioner Asselstine argues that the present process is inefficient because it requires persons who lack the requisite interest in a proceeding to draft contentions only to learn that they lack standing. The solution to this concern, however, is not to admit as parties all persons with standing at the very outset of the proceeding, but rather to reject at the outset those persons who lack standing. The licensing boards al-ready have the authority to reject petitions to intervene prior to the submission of contentions, and in practice, typically do so. S e e , ~ , Georgia Power Co. (Vogtle Electric Generating Plant, Units 1 and 2), Docket Nos. 50-424 & 50-425, Memorandum
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| * and Order (March 9, 1984).
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| For these reasons, Commissioner Asselstine's alternative proposals should be rejected.
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| JAMES E. TIERNEY ATTORNEY GENERAL DOCKET ED US NRC STATE OF MAINE
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| '86 OCT 20 P 1 :52 DEPARTMENT OF THE ATTORNEY GENERAL STATE HOUSE STATION 6 AUGUSTA, MAINE 04333 October 16, 1986 Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attn : Docketing and Service Branch
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| * Re: State of Maine's Comments on Proposed Rules Regarding Procedural Changes in the Hearing Process
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| ==Dear Commissioners Zeck,==
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| Asselstine, Bernthal, Roberts On July 3, 1986, the Nuclear Regulatory Commission (NRC)
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| & Carr:
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| published a notice of proposed rulemaking regarding procedural rules for the NRC licensing process for nuclear power plants.
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| 51 F.R . 24365 (July 3, 1986). The proposed rule comports with neither the intent nor the spirit of the Atomic Energy Act.
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| That Act contemplates full and real public participation in the licensing process. In the past, public participation in licensing hearings has been instrumental in raising vital and relevant issues and evidence which, otherwise, would have remai ned hidden .
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| * The Maine Yankee Atomic Power Station is located in the State of Maine. The citizens of the state have a real interest with respect to any future licensing hearing for nuclear power plants with in or close to the borders of the State of Maine.
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| The procedural changes suggested in the proposed rule would seriously hinder those citizens and, indeed, the State of Maine, in participating in any future hearings which might impact the state. In view of this, on behalf of the State of Maine , we strongly object to these rules and request that the NRC not adopt them .
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| I I The proposed rules are presented with the hope of making the process more efficient. Efficiency, however, should never override public participation in the process. Further, we have serious doubts that the process will be more efficient if these rules are put into effect. Our comments on the specific*rules are as follows:
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| Intervention (10 C.F.R. 2,714) (Admission of Contentions)
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| This proposal would require that an intervenor, as a condition of participating in the hearing process, present a statement of facts and expert opinion on which he will rely in "proving the contention at hearing" as well as references to specific sources or documents on which the intervenor will rely. This is not required of the NRC staff or the applicant with regard to what they may present in opposition to the contention. Moreover, an intervenor must present sufficient
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| * information "to show that a genuine dispute with the applicant" of law, fact or policy complete with references to specific portions of the Environmental Report which are disputed.
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| Remarkably, this is all prior to discovery.
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| In effect, an intervenor must hurdle the obstacle of the summary judgment standard as a condition for getting a contention admitted and, thereby, participating in the hearing. This hopelessly confuses the merits decision with the intervention decision. As the NRC is well aware from prior licensing proceedings, much of an intervenor's case comes out as a result of discovery. Quite simply, this proposal would result in many valid contentions that are presented by sincere intervenors not seeing the light of day. Thus, many vital issues and much evidence will remain hidden which, otherwise, could certainly affect the outcome of a hearing and conditions upon a license .
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| Simply put, this is an attempt to require the intervenor to win the race before he is let out of the starting block. This violates not only the spirit and intent of the Atomic Energy Act, but fair play as well.
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| Subpoenas (20 C.F.R. 2.720) (Discovery Against NRC Staff)
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| This section, in effect, would protect the NRC staff from normal type of discovery. The NRC staff takes a position at hearing; however, the type of discovery the rule contemplates being prohibited is vital to a full understanding of how the staff reached its position and whether that position is correct. In particular, questioning whether and why the staff
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| has or has not taken a particular approach or analysis may reveal serious errors in the staff position. In effect, this is an attempt to hermetically seal off the staff's work from the type of serious scrutiny that is vital to ensuring the staff position, which is seriously considered by the licensing boards, is well-based. The staff should be able to respond to such questioning; if the staff cannot, it raises serious questions about the staff's position.
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| Evidence (10 C.F.R. 2.743) (Cross-Examination)
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| The requirement that a cross-examination plan be submitted and approved by the hearing's presiding officer is both troubling and unnecessary. The information revealed as the result of cross-examination, in many cases, seriously affects
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| * the ultimate decision. This proposal puts into the presiding officer's hands the ability and, apparently, the discretion, to prevent cross-examination altogether if, in his view, it does not appear necessary to a full and true disclosure of facts.
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| This decision is made prior to the answering of a single cross-examination question. It is difficult to understand how such a decision can be made under these circumstances. The hearing officer already has the authority to abbreviate cross-examination on the ground, inter alia, of relevancy during the hearing. This proposal does nothing more than add yet another burden to a public intervenor with limited resources. Further, if a presiding officer wrongfully prohibits proper cross-examination, there is the very real possibility of reversal on appeal. Clearly, this is both inefficient and unnecessary.
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| Authority of Presiding Officer to Dispose of Certain Issues on the Pleadings (10 C.F.R. 2.749) (Summary Disposition)
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| Simply put, the time for summary judgment is before a hearing begins. This proposal permits such motions at any time. It opens all of the parties up to surprise tactics at the hearing which would result in chaos and enormous inefficiency during the hearing process. This proposal certainly should not be seriously considered.
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| Proposed Findings and Conclusions (10 C.F.R. 2.754) (Appeals to the Commission from Initial Decisions)
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| This rule, apparently, would prohibit parties from presenting proposed findings on other parties' contentions.
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| Why the proponents of this proposal believe that it can hurt a licensing board to have additional informed input with respect
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| to the contentions that are before it is mysterious. All this purports to be is an attempt to prevent members of the public, who are participating in the process, from formally presenting their views on contentions otherwise before the Board. The agency, indeed, should welcome the views of these participants.
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| The proposals of Commissioner Asselstine present a very real and informed attempt to deal with some of the problems in the licensing process. Commissioner Asselstine's thoughts concerning the intervention process and the prehearing conference are certainly the type of constructive proposals that should be more seriously considered than those being put forth presently .
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| * In view of the above, we strongly request that the proposed changes in procedural rules be rejected, and that the proposals of Commissioner Asselstine be more seriously studied. Should the proposed procedural rules be adopted, we suggest that the public's ability to participate and assist in the NRC licensing process will be seriously and, we feel, fatally damaged.
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| HARMON & WEISS DO(;KETEP.
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| 200 1 5 STREET , N. W. USNf1C SU IT E 430 WASHINGTO N, D. C. 20009-1125 '86 OCT 20 p 3 :52 GAIL Mc G REEV Y HA R M ON TELE P H O NE
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| ( 20 2) 32 8 - 3500 EL LYN R . W E I SS D I ANE C U RRAN l-F:: ; --~ C -
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| DEA N R . TOUSLE Y ANDREA C . FERSTE R October 1 i r ;;l '9 *8*6 Mr. Samuel Ch ilk Secretary of the Commission U.S. Nuclear Regulatory Commission 1717 H Street, N.W. 11th Floor Washington, D.C. 20555
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| ==Dear Mr. Secretary:==
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| Enclosed are the Comments of the Confederated Tribes and Bands of the Yakima Indian Nation on the Commission's proposed amendments to 10 CFR Part 2, which were published in the Federal Register at 51 Fed. Reg. 24368.
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| Sincerely yours, D~:~~
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| ASSOCIATE ATTORNEY FOR THE YAKIMA INDIAN NATION Enclosure cc: Mr. Russell Jim Mr. James B. Hovis Acknowledged by card.:,,l~l.11:&f r
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| U. S. Nllrl J:\ ,,.. ' ,-. w COMMISSI08 DC'" * <:ECTION
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| '~y N
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| * Ccpi Ad fp
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| UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
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| )
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| Rules of Practice for Domestic ) 10 CFR Part 2 Licensing Proceedings--Proposed ) 51 Fed. Reg. 24365 Procedural Changes in the Hearing )
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| Process )
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| )
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| COMMENTS OF THE YAKIMA INDIAN NATION On July 3, 1986, the Nuclear Regulatory Commission published
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| * in the Federal Register proposed amendments to 10 CFR Part 2, the Commission's Rules of Practice for Domestic Licensing Proceed-ings. 51 Fed. Reg. 24365. Following are the comments of the Confederated Tribes and Bands of the Yakima Indian Nation on the proposed amendments.
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| General Comments With the stated purpose of "improv[ing] the licensing proc-
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| * ess for nuclear power plants," the Commission is proposing a set of changes to its procedural rules governing the hearing process in NRC licensing proceedings. Unfortunately, both the general approach and the specific provisions of these proposed changes demonstrate that the basic philosophy underlying them is a con-viction that improving the licensing process is primarily a mat-ter of curtailing the participation of potential intervenors in that process. As former intervenors in an NRC reactor construc-tion permit proceeding (Skagit-Hanford), and as potenti~l future intervenors in NRC licensing proceedings for reactors, a high-
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| \ /
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| level radioactive waste repository, or defense high-level waste disposal systems, the Yakima Nation vigorously opposes this as-sault on intervenor participation in the licensing hearing proc-ess. The basis for our objections follows.
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| I. Requirements for Admissibility of Contentions The proposed provision calling for Commission refusal to admit a contention if "[i]t appears unlikely that petitioner can prove a set of facts in support of its contention", proposed S 2.714(c) (2)(ii), is violative of basic due process. The
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| * licensing board is in no position to make determinations about the likely validity of a petitioner's alleged facts at that very early stage in the proceeding. Neither decisions on the right to intervene, nor decisions on the admissibility of contentions, should be based on the licensing board's initial, necessarily un-inform~d impressions about the substantive merits of petitioner's case. Indeed, determining the merits of that substantive case is precisely the function of an evidentiary hearing *
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| * The proposed changes would make meaningless the Commission's recent grant of automatic intervenor status to host states and affected Indian tribes in a repository licensing proceeding. The grant of automatic intervenor status is a hollow gesture if host states and affected Indian tribes must virtually prove their con-tentions, before the proceeding starts and before discovery, in order to have them admitted.
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| The requirement to virtually prove contentions in order to have them admitted violates the NWPA's requirement that affected Indian tribes and host states must be able to participate fully
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| in all aspects of repository siting, licensing, and developnent.
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| NWPA S 111(6), 42 u.s.c. S 10131(6). This requirement would also violate section 189(a) of the Atomic Energy Act, which provides 0
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| that the commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to the proceedings. 0 42 u.s.c. S 2239(a).
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| Commissioner Asselstine's proposals for amending the inter-vention provisions of Part 2 are much more reasonable than the Commission's, and are more likely to result in the improved ef-
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| * ficiency the Commission purports to seek without trampling ,.on due process interests of potential intervenors. We support Commis-sioner Asselstine's proposal to make the decision on the right of a party to intervene a pure standing determination, wholly sepa-rate from the admission of contentions. This distinction would mesh with the Commission's recent grant in amendments to 10 CFR Part 60 of automatic intervenor status to host states and af-fected Indian tribes in a repository licensing proceeding *
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| * Commissioner Asselstine's proposals on the admissibility of contentions are also far preferable to those proposed by the Com-mission. Provisional admission based on a finding by the presid-ing officer that a set of facts exists which, if true, would entitle the intervenor to relief, is consistent with constitu-tional due process considerations, and yet would permit the dis-missal of wholly frivolous contentions. The Commission's pro-posed additional requirement that those facts be considered by the presiding officer as likely to be able to be proved, proposed
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| S 2.714(d) (2) (ii), is the most fundamentally objectionable aspect of its proposal.
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| We disagree, however, with Commissioner Asselstine's further suggestion that, to obtain a hearing on a contention, an inter-*
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| venor would have to establish that a genuine issue of material fact exists. The Applicants have the burden of proof in a licensing proceeding. They and the staff can file summary dis-position motions where they perceive the absence of a genuine issue of material fact concerning an intervenor contention.
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| There is no efficiency or fairness in codifying a summary dis-
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| * position determination where there is no motion for one. Commis-sioner Asselstine's distinction between a need to make adetailed factual allegations* and a need to *show that an 'inquiry in depth' is appropriate", 51 Fed. Reg. 24370, is a nice one which would be too easily lost on licensing boards anxious to dispose of issues under the new, *streamlined* licensing regime.
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| Finally, the cases cited by the Commission as precedent for its proposed higher threshold for intervention and hearings are
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| * not on point. Neither Costle v. Pacific Legal Foundation, 445 U.S. 198, 100 s.ct. 1095 (1980), nor Weinberger v. Hynson, Westcott and Dunning, Inc., 412 U.S. 609, 93 s.ct. 2469 (1973),
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| supports the proposition that an interested party's factual al-legations must be likely to be provable at hearing to be admitted for adjudication.
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| Rather, Costle upholds a threshold for grant of a hearing on an Environmental Protection Agency NPDES permit which is vir-tually identical to the present NRC threshold for admission of a contention~ i.e., a request for an adjudicatory hearing is
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| granted if the request *sets forth material issues of fact relevant to the questions of whether a permit should be issued, denied, or modified." 445 U.S. at 198, 100 s.ct. at 1097. In citing the Weinberger case, the court in Costle speaks of its prior approval of agency rules "that have required an applicant who seeks a hearing to meet a threshold burden of tendering evi-dence suggesting the need for a hearing.* (Emphasis added.) 445 u.s. at 214, 100 s.ct. at 1105. Similarly, Weinberger upheld a Food and Drug Administration rule providing that the agency need not provide a formal hearing where it is *apparent at the
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| * threshold that the applicant has not tendered any evidence which on its face meets the statutory standards as particularized by the regulations.* (Emphasis in the original.) 412 U.S. at 620, 1
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| 93 s.ct. at 2478.
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| These cases do support the proposition that an agency may establish a threshold burden that a party must tender some evi-dence supporting a contention or the need for a hearing. Such a threshold is contained presently in section 2.714(b). They
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| * equally clearly do not support the Commission's far more radical proposal that the alleged facts supporting the contention must be determined by the presiding officer to be likely to be provable.
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| There is absolutely no basis or precedent for establishing such a substantive merits test as a prerequisite for participation in an administrative adjudication such as NRC licensing.
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| 1 Indeed, the majority in Weinberger held that a hearing was warranted based on the applicant's factual allegations. The validity ot those allegations played no part in the hearing determination.
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| II. Discovery Against NRC Staff The proposed new limitations on discovery against the Com-mission staff are unjustified and unfair. The prohibition against interrogatories requiring the staff to explain why it did not use alternative data, assumptions, or analyses in its reviews is especially objectionable. The selection of data, assumptions, and methods of analysis used by the staff in its reviews go to the very heart of the reasons for the staff's positions on the merits of a proposed facility. If other parties--including both
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| * intervenors and applicants--may not discover the basis for the staff's positions, they will have to prepare testimony and cross-examination and enter the hearing largely ignorant of the rationale for the staff's positions. This would constitute a fundamental frustration of the purpose of discovery under modern procedural rules, which is to prevent surprises at trial.
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| The proposal to insulate the NRC staff from discovery is also wholly inconsistent with section 117(a) (1) of the Nuclear
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| * Waste Policy Act, 42 u.s.c. S 10137(a) (1), which requires the Commission to provide to host states and affected Indian tribes "timely and complete information regarding determinations or plans made with respect to the site characterization, siting, de-velopment, design, licensing, construction, operation, regulation, or decommissioning of [a] repository." (Emphasis added.) It is also inconsistent with the Morgan-Davis agreement between NRC and DOE which governs agency interactions and parti-cipation by states and affected Tribes in the waste program.
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| - 7 -
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| The YIN is of the opinion that the Commission staff's per-formance under these provisions has generally been very good, and our interactions very productive, during the nearly four years of NWPA implementation. Rather than imposing new procedural rules which will poison those productive interactions by placing impos-sible constraints on intervenors, the Commission could more pro-ductively consider extending the more open waste program model for public participation to its reactor-licensing programs.
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| If the staff is going to continue to be a full party to the licensing proceeding, the Commission may not insulate them from reasonable discovery. The relevant facts and analyses in the staff's possession are obviously material to the staff's posi-tions in the proceeding, whether or not the staff purports to rely on them. Discovery against the staff may not--consistent with any reasonable sense of fairness--be limited to only those facts and analyses which are supportive of the staff's ultimate positions in the proceeding *
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| * III. Cross-Examination Plan The YIN has no fundamental objection to the requirement of a pre-filed cross-examination plan, which is essentially already standard NRC practice. However, the requirement that the plan include a party's postulated answers that might be anticipated to its questions is absurd. A statement of the objectives to be achieved by a line of questions and proposed questions is clearly sufficient for the presiding officer to make determinations of relevancy, where necessary. The party's speculations about the
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| responses that will be elicited can add nothing to the presiding 2
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| officer's consideration.
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| IV. Timing of Summary Disposition Motions The proposed amendment to S 2.749(a) to permit motions for summary disposition to be filed even during a hearing appears to be designed simply to facilitate burdensome diversions of inter-venors' usually scarce resources during the hearing. This is un-necessary and patently unfair. It will almost always be possible
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| * for the parties to determine through discovery whether such is-sues of fact are present, and for such motions to be filed well in advance of the hearing. In the rare event that the absence of a genuine issue of material fact manifests itself during or just prior to a hearing, such motions should be submitted following 0
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| the hearing. The marginal flexibility* which this proposed change would provide does not begin to justify the extraordinary hardship it would be certain to impose on intervenors during
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| * hearings.
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| : v. Limitations on Intervenors' Proposed Findings and Conclusions, and Appeals Finally, the amendments that would limit an intervenor's proposed findings of fact and conclusions of law, proposed S 2.754(c), and limit an intervenor's appeals, proposed S 2.762(d) (1), to only the specific issues that intervenor placed 2
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| Moreover, if the Commission's proposed restrictions on dis-covery against the staff survive in anything like their pro-posed form, the questioning party may have very little basis for any such speculation.
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| in controversy in its contentions, is patently discriminatory and objectionable. The intervenors, no less than the NRC staff, have "an overall interest in the proceeding to ensure that public health and safety and environmental values are protected." 51 Fed. Reg. at 24368. Indeed, if potential intervenors were of the opinion that the NRC staff satisfactorily represented public health, safety, and environmental interests, they would never put themselves through the ordeal of intervention.
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| This provision would only provide potential intervenors with
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| * an incentive to submit more contentions than they have the resources to pursue through adjudication. Indeed, in cases where there is more than one intervenor, the chronic resource problem is frequently addressed in part by a dividing of the issues among intervenors which is based not on the respective intervenors' in-terests in the issues, but only on their lack of resources to pursue all the issues in which they have an interest. Such in-tervenors, inasmuch as they have participated in the proceeding
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| * as a whole, should not be restricted against providing their views on the proceeding as a whole to the decision-makers. Nor should they be constrained against appealing on the basis of is-sues in which they have an interest, but lacked the resources to pursue through the adjudication.
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| Conclusion In general, the Commission's proposals place unseemly emphasis on increased efficiency in the hearing process. While efficiency concerns are legitimate and there is room for modest improvements in NRC hearing procedures in that regard, they
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| should take a distant back seat to the ability of the public to participate meaningfully in the licensing process.
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| Section 189(a) of the Atomic Energy Act provides that nthe commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to the proceedings.* 42 u.s.c.
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| S 2239(a). Section 111(6) of the Nuclear waste Policy Act of 1982 provides that "state and public participation in the plan-ning and develoµnent of repositories is essential in order to promote public confidence in the safety of disposal of such waste and spent fuel." 42 u.s.c. S 10131(6). The proposed amendments violate both the letter and the spirit of these, the Commission's organic, governing statutes. They reflect a pervasive desire on the part of the Commission to impose the maximum possible con-straints on public participation in Commission proceedings. Far from being "neutral" in their effect upon intervenors, as the Commission alleges, 51 Fed. Reg. 24370-71, these proposals would make an already very difficult undertaking virtually impossible
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| * to sustain for most potential intervenors.
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| In general, and in most specifics, the proposals of Commis-sioner Asselstine are much closer to the mark in terms of improv-ing both the efficiency and the fairness of the Commission's hearing procedures. His proposal to permit public participation earlier in the process is a step in the direction of the Commis-sion's presently more open high-level waste program participation model, which is unquestionably in far higher regard with states, Indian tribes, and the public, than is its reactor licensing model. Commissioner Asselstine's proposal to separate the inter-
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| vention and contention determinations is also salutary. More-over, his proposed standard for the admission of contentions is far preferable to that proposed by the Commission, although it, too, goes too far in requiring a virtual summary disposition determination without even requiring a motion for it by the other parties.
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| In sum, the Yakima Indian Nation emphatically urges the Com-mission not to implement anything even remotely similar to the proposed RRTF amendments, and to give serious consideration to Commissioner Asselstine's much more reasonable proposals for im-proving the NRC licensing process.
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| Respectfully submitted,
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| ~~~
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| HARMON & WEISS 2001 S Street, N.W.
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| Washington, D.C. 20009 (202) 328-3500 October 17, 1986 ASSOCIATE ATTORNEY FOR THE YAKIMA INDIAN NATION
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| THE COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF THE ATTORNEY GENERAL JOHN W. Mc CORMACK STATE OFFICE BUILDING
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| ~ R * @
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| ONE ASHBURTON PLACE, BOSTON 02108-1698 00(,'KETE O USNRC FRANCIS X. BELLOTTI ATTORNEY GENERA L
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| ~~~~~ "86 OCT 20 PS :30 OFF IC'- ,7~* * * ' !. '.' '(
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| oocr'.ET1r1u ~- **, *"/ :(. r October 16, 1986 2F'..'i**:'>
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| Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Docketing and Service Branch Re: Comments Concerning the Nuclear Regulatory Commission's Proposed Changes to 10 C.F.R. Part 2
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| ==Dear Sir or Madam:==
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| On behalf of Massachusetts Attorney General Francis X. Bellotti, I have enclosed Comments Concerning the Nuclear Regulatory Commission's Proposed Changes to 10 C.F.R. Part 2.
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| Thank you for your attention to this matter.
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| Very truly yours, IA,, 4 A~-(;;:_
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| Donald S. Bronstein
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| * DSB/dd enc.
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| Assistant Attorney Ge neral Environmental Protection Division (617) 727-2265 AcknoWtedged by card.:.~:,~-~.!§! ,ta
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| CLEAR REGUI
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| .,T;P; rn CKETING & c*
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| OFFICE "' F OF
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| * c D
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| D~te ;0/0 I
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| D r . 4
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| COMMENTS OF MASSACHUSETTS ATTORNEY GENERAL FRANCIS X. BELLOTTI CONCERNING THE NUCLEAR REGULATORY COMMISSION'S PROPOSED CHANGES TO 10 C.F.R. PART 2 As Attorney General, representing the Commonwealth of Massachusetts, I welcome this opportunity to comment on the proposed changes to 10 C.F.R. Part 2 which appeared at Vol. 51, No. 128, p. 24365 of the Federal Register on July 3, 1986.
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| These proposals, if adopted, would greatly restrict the ability
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| * of intervenors to participate meaningfully in licensing proceedings for nuclear power plants by raising obstacles to their admission as parties, by restricting cross-examination, by limiting discovery, and by allowing their early dismissal from the proceeding.
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| My comments are based upon almost twelve years of experience in domestic licensing proceedings, an experience which has made me, like the representatives of the nuclear
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| * industry whom I frequently oppose, a believer in regulatory reform. I, like them, wholeheartedly support the notion of streamlined, simplified licensing proceedings. I am equally wholehearted, however, in opposing the particular proposals of the Regulatory Reform Task Force, because I believe they will effectively curtail the critical role currently played by intervenors and interested states and localities in allowing full exploration of vital health and safety concerns.
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| In light of the Chernobyl disaster, we need to be even more cautious in the licensing of nuclear power plants and even more vigilant in addressing health and safety issues. The changes suggested by the Regulatory Reform Task Force represent a dangerous and ironic move in the wrong direction. If adopted, these proposals would make it likely that critical information may never be brought to light in the hearing process. Whatever arguments can legitimately be made suggesting streamlining the administrative process, any regulation which serves as a
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| * barrier to the receipt of critical information is indefensible and unwise.
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| The proposed changes would make it considerably more difficult than at present for intervenors (including interested states and localities) to participate in any meaningful way in the hearing process. First, 10 C.F.R. S 2.714 would make the admissibility of contentions even more restrictive than at present. Section 2.714 currently requires that each petitioner
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| * seeking intervention must list all issues it wishes to raise in the proceeding. In addition, the petitioner must state the basis for the contention. The proposed change would add the unrealistic burden of requiring the petitioner to support each contention with a concise statement of the alleged facts, expert opinion, sources, and documents on which the petitioners will rely at the hearing. The revised section would essentially require that intervenors prepare and present their entire case before the licensing process even begins. Such a requirement is utterly unrealistic since the discovery process would not have commenced by the time the contention must be filed. There is simply no precedent for this burdensome and illogical requirement.
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| In fact, the current regulation concerning the admissibility of contentions is itself unduly restrictive, at least as it has been applied to date in the Seabrook licensing case. From the inception of the licensing process -- both construction and operating -- I, on behalf of the Commonwealth
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| * of Massachusetts, have opposed the siting and licensing of Seabrook. It has been our position, consistent and unchanged for the past twelve years, that no adequate evacuation plan can be devised to protect the population near the plant. Despite the apparent truth of this assertion, however, the Atomic Safety Licensing Board, acting under the current regulation, -
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| has made it virtually impossible for us to participate meaningfully in raising this vital concern .
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| * In February, 1986, we filed a single contention in the New Hampshire off-site planning phase of the Seabrook licensing proceeding. This contention asserted that, in the event of a serious accident at Seabrook on a summer weekend, adequate protective measures could not be taken, even under typical meteorological conditions, for the large transient beach population within the emergency planning zone. This contention was well-supported by the expert opinion of a nuclear physicist, Dr. Jan Beyea. Dr. Beyea's study, submitted as a basis for the contention, concluded that, even assuming the utility's estimated evacuation times, a large portion of that beach population would suffer lethal radiation exposure from the Seabrook plume. Moreover, we asserted that there was no provision in the New Hampshire emergency plans for sheltering of the beach population.
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| Rather than welcoming our participation and that of our well-qualified expert as a means of exploring this critical issue, the Board dismissed our contention. We are thus unable
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| * to introduce Dr. Beyea's thorough study and unable to litigate this issue before the Board. While we believe that there is a good likelihood that a later appeal to the Commission's Atomic Safety and Licensing Appeal Board or, if necessary, to a court, is likely to result in a reversal of the Board's order, the delay resulting from this dismissal is unnecessary and unfortunate. In its effort, presumably, to streamline the hearing process by limiting our intervention, the Board will
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| * have succeeded only in prolonging that process, perhaps for years. Moreover, the dismissal of our single contention from the Seabrook licensing proceeding is only one example of the numerous we could cite from that proceeding in which contentions raising serious safety concerns have been inappropriately dismissed or narrowed.
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| In the Seabrook proceeding, we have for years attempted to raise the critical issue of off-site emergency planning. When we tried to raise that concern in the construction license proceeding, we were told first that there was no need to evacuate the beach population, and later, after the accident at Three Mile Island, that the issue was premature. When we then raised it in the licensing proceeding, it was dismissed. When we appealed to the Appeals Board, our appeal was dismissed as interlocutory. The Governor of Massachusetts has now stated that he cannot and will not participate in emergency planning because no adequate plans can be devised. He based his position, in part, on the Beyea study the ASLB will not admit *
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| * The Governor's position could result in no operating license being approved for Seabrook. Yet rather than addressing this central issue years ago, the Commission, through its present regulations and interpretation of those regulations, has delayed consideration and added years to the hearing process.
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| The proposed amendment to 10 C.F.R. S 2.714 dealing with the admission of contentions raises even further the threshold for the admission of such contentions. It is supposed to
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| * result in more efficient, speedier proceedings.
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| the exact opposite will occur.
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| I submit that By encouraging the dismissal of parties and contentions, the changes will encourage litigation with the likely result of adding years to the licensing process.
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| Rather than devising new rules to curtail even more sharply the full exploration of issues, which will in the long run do nothing to shorten the hearing process, the Commission should consider ways to have these issues fully developed in a simple, timely and fair manner.
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| While our own experience particularly highlights the inefficacy of the proposed changes concerning intervention, we also object to proposed changes to sections 2.720 (subpoenas and discovery against NRC staff), 2.743 (cross-examination during hearing), 2.749 (motion for summary disposition), and 2.762 (proposed findings of fact, conclusions of law, and appeals). For example, the limits placed on cross-examination are unrealistic and unduly restrict cross-examination, a tool often recognized as the greatest vehicle for the discovery of
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| * truth. These changes to 10 C.F.R. S 2.743 would allow cross-examination only by permission of the hearing judge and only after the party has submitted a description of the basis of the cross-examination, the objectives to be achieved by the cross-examination, the proposed questions, and the anticipated answers. These burdensome restrictions are unjustifiable and unprecedented in American jurisprudence.
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| Likewise, the proposed change to section 2.762 prohibiting
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| * parties from submitting proposed findings on any contentions raised by other parties erects unnecessary obstacles to the full consideration of all issues. Rather, the Board should welcome the assistance and participation of all parties.
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| Moreover, the proposed change to section 2.749 allowing summary disposition motions to be heard at any time, even prior to the completion of discovery, means that contentions raising serious safety concerns may be dismissed simply because intervenors, who often depend on the discovery process to develop adequate factual support for their contentions, will be unable at an early date in the proceeding to supply appropriate affidavits to counter such motions. Such precipitous dismissal can hardly help achieve any worthwhile purpose.
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| Finally, the proposed change to section 2.720 would prohibit parties from asking the NRC staff in interrogatories to state its reasons for not using alternative data, assumptions, and analyses. Yet these questions are clearly relevant and would, in most proceedings, properly be the
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| * subject of cross-examination. It is inexplicable why the Commission and the Board would choose to devise a procedure to discourage, indeed prohibit, the disclosure of such vital matters.
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| I urge the Commission to reject the proposed changes and to then address itself to the challenge of making the hearing process a fair and efficient forum in which all parties can make a genuine contribution to assuring that health and safety
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| * issues are thoroughly explored.
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| -"' .... -.,2_, @
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| ~ {_51 FJ! '48~5"). oou~i~~ED Se OGT 17 P2 :13 Nuclear Information and Resource service 1616 P Street, N.W. , Suite 160, Washington, D.C. 20036 (202) 328-0002 October 18, 1986 Mr. Samuel Chilk, Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555 subject: comments on Proposed Procedural Changes in the Hearing Process. 51 Fed, Reg. 24365
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| ==Dear Mr. Chilk:==
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| I have enclosed the comments of the Nuclear Information and Resource Service on the Commissions's proposed rule on licensing hearings. I urge the Commi ssioners to consider them carefully before developing a final rule.
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| Thank you.
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| Sincerely, Beatrice Trapasso Research Coordinator Enclo sure OCT 2 2 ,
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| Acknowledged by card .* ,;:;,:,,.,,"' ** ,, ,,a
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| : u. s. NUCLEAR REG',,
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| DOCKETING p .-
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| OFFICE N OF T "T("\O Y ( ( '
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| 0~
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| Postmark c Copies R I Add ' I C 4 Special D, ,
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| COMMENTS BY THE NUCLEAR INFORMATION AND RESOURCE SERVICE ON nRULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS, PROCEDURAL CHANGES IN THE HEARINGS PROCESSn 51 Fed. Reg. 24365 (July 3, 1986)
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| Introduction These proposals are the latest in a series of proposals designed to grossly limit public participation in licensing bearings for nuclear power plants. With minor modifications, this proposed rule is adopted from 1984 proposals by the Regulatory Reform Task Force, proposals which were opposed by individual members of the task force, the NRC's own Senior Advisory Group, and the Ad Hoc Committee for the Review of Nuclear Reactor Licensing propoals.
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| The need at this time to *streamlinen the licensing process is a dubious claim that has been made repeatedly over the years.
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| Each time, the facts prove otherwise. In 1981, the House Government Operations Committee issued a report which found that while the NRC was devoting personnel and resources to tbe0 alleged problem of licensing delay," its safety-related projects slipped behind schedule. In 1983 Congressional bearings ori licensing reform, former NRC chairman Nunzio Palladino said hearings have never unjustifiably delayed a single reactor.
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| There are fewer than a dozen reactors currently undergoing licensing hearings, and there is no need to *maximize staff resources."
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| * Furthermore, these proposals, as written, will not accomplish the Commissione~s*-stated goals of "streamliningn the licensing process and *sharpening" the issues in dispute.
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| * Rather, hearings will become more complex as time is spent discussing and considering issues such as: If *specific enough" portions of the license have been cited, if petitioners to intervene can "prove" the facts they allege, and if they can, if they would be "entitled to relief"--issues that are far less important than quality assurance, safety, and management compete_nce.
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| One must wonder, then, what the main purpose of this rule is. The goal of these proposals in essence is to have as many intervenors and their contentions thrown out at as early a stage in the proceedings as possible, and to intimidate potential intervenors from ever beginning the process. _That becomes clear by considering the practical effects of this rule in any future licensing hearings.
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| The Commissioners should never forget the fact that intervenors have the legal right to scrutinize the safety of a potentially hazardous reactor being sited near them. We see, however, a hostility towards public participation expressed in every one of these proposals. Individually and together, these proposals are a direct assault on intervenor rights by the NRC, and must be rejected.
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| A detailed discussion of each of the proposed revisions follows.
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| section 2,714--Intervention This proposal would require, as a condition for intervention, a prospective intervenor to list f o r ~
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| * contention a statement of the facts or expert opinion that will be relied on in °proving the contention at hearing," together with "the specific sources of documents used." Contentions and the back-up information must be submitted before discovery. The applicant and the NRC staff may then respond to the petition to intervene, but in refuting the contentions, are not required to produce evidence of the same magnitude of that required by the intervenors. While the proposal states that responses must have "particular reference" to paragraph D-1, the rule does not restrict applicant and NRC staff responses to the question of an intervenor's standing.
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| A Licensing Board must dismiss a contention if it "appears unlikely that a petitioner can prove his case,n and that the contention, if proven, would not entitle the petitioner to relief *
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| * The Commission justifies this by saying current requirements may be met by copying contentions from another proceeding involving another reactor. Thus, an intervenor may not fully understand a contention and frivolous contentions may be admitted.
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| First of all, to say intervenors don't understand their own contentions is a gross insult to intervenors all across the country. As an Appeals Board observed in 1984:
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| 0 Public Participation in licensing proceedings not only can provide valuable assistance to the adjudicatory process, but on frequent occasions demonstrably has done so. It does no disservice to the diligence of either applicants generally or the regulatory staff to note that many of the
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| substantial safety and environmental issues which have received the scrutiny of licensing boards and appeal boards were raised in the first instance by an intervenor.a Gulf States Utility co. (River Bend 1 & 2), /
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| ALAB-183, RAI-74-3, March 12, 1974 Secondly, Section 2.714 currently requires petitioners to list not only their contentions, but ntbe bases for each contention with reasonable specificity.* This must be done without the benefit of a final Environmental Impact Statement, other NRC and industry documents, and must be completed before discovery. The current procedure is not easy to abuse--indeed, many contentions are not admitted. Contentions can also be dismissed under summary disposition. There are, instead, many cases where intervenors have not been allowed to bring up safety issues which resurfaced later as actual problems at the plant.
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| At Zimmer, the NRC had to vote to stop all work at the plant, after rejecting intervenor's contentions three times between 1976 and 1970. Diablo Canyon's low-power license was also suspended when investigations revealed a wide-spread breakdown in the plant's quality assurance program.
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| * In its proposed revisions to 2.714, the NRC is clearly confusing a merits test with a standings test. The petitioner must show that be meets the summary judgment test, can prove the facts, and once succeeding at that, would be nentitled to relief.n These requirements violate fundamental due process, and the Atomic Energy Act requirement that the NRC shall grant a hearing upon the request of any person whose interests may be affected by the hearing, and shall admit any such person as a party to such proceeding.
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| section 2,120 - Discovery Aaainst*NRC staff Under this proposal, interrogatories could be used against NRC staff only to obtain the facts used by the staff to formulate its opinions. The NRC staff could not be required under discovery to explain why it did not consider alternative information in its possession, or to perform additional research.
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| The NRC staff is currently a full party to any licensing proceeding--and its position is usually crucial to the outcome of a proceeding. As long as the staff's participation carries so much weight, its accountability to the public should not be reduced. Opposing parties are entitled to know whatever facts relevant to the case are in its possession. Asking a party to reveal the reasons for its choice of data or analytical method is fair discovery.
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| ~ection 2,743--Limits on cross-Examination Parties to license hearings are now entitled to cross-examination. Under this proposal, parties must receive prior permission to cross-examine a witness, and furthermore, submit a cross-examination plan which includes the objectives to 0
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| be raised by the questioning, the proposed questions themselves, smd "answers that might be reasonably anticipated." The Licensing Board then would rule on whether to allow the cross-examination, making a judgment on whether the requested questioning would be necessary for a "full and true disclosure of the facts. 0 As the NRC notes, Sections 2.718 and 2.757(c) already give the licensing board the authority to prevent argumentative, repetitious, or cumulative cross-examination. But there has never been a requirement for prior board permission to conduct a cross-examination.
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| Since presiding officers already have the authority to prevent *cluttered records, 0 this proposal is simply a direct attack on one of the most fundamental tools used by intervenors in NRC proceedings. It jeopardizes due process rights to a full and fair hearing of the issues.
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| The Administrative Procedures Act requires agencies to allow cross-examination when needed for a *full and true disclosure of the facts. 0 The right to confront and cross-examine witnesses can be especially important where broad issues of public health and safety are concerned *
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| * While the proposed rule now applies to all parties in a proceeding (as opposed to the 1984 proposal which applied only to intervenors), NIRS still sees this as a direct attack on one of the fundamental tools of intervenors, who do not have the resources to submit volumes of direct testimony. The rule gives parties only 15 days to examine direct written text before submitting its request for cross-examination. This is another example of the NRC's attempt to refocus license hearings on issues of threshhold rather than getting facts out on an open .
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| record.
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| section 2,749-Authority of Presidina*officer to Dispose of Issues Currently, the licensing board's presiding officer has the authority to set a schedule for summary disposition, and the discretion to bar such motions shortly before or during a hearing. This is to protect the parties so that resources are not diverted away from, for example, preparing for a hearing.
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| The proposed revision to 2.749 removes this protection. summary judgments would also be allowed before discovery. An intervenor could lose an important issue simply because the summary judgment motion was filed before discovery had yielded adequate information to answer the motion. Under this proposal, applicant could also use this rule to interrupt the flow of evidence. If applicants and staff, with all their resources, are not able to make a succesful motion pr~or to bearing, they should not be permitted to interrupt the flow of evidence to interpose a late summary judgment motion. Such a procedure is not allowed in any court or agency of which we are aware and is fundamentally at odds with the concept of summary disposition.
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| section 2,754--Restrictions on Proposed Findings and conclusions
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| * Under this proposal, parties would be allowed to submit proposed findings of fact and conclusions of_law and appeal only those issues which they themselves entered as contentions.
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| Currently an intervenor may participate on all issues in which he has a discernible interest. This principal was established in Northern states Power co, ALAB 244. The NRC acknowledges that intervenors often have "broad, generalized interestsn in NRC proceedings, but this proposal would unreasonably prevent them from contributing to the bearing process. It would hamper the ability of intervenors to pool their limited resources and divide/
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| tasks among each other.
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| The NRC offers little in defense of this proposal besides referring once again to 0 volumes 0 and "multiplicities of filings" that licensing boards must consider. With less than a dozen cases being heard right now, the boards are certainly far from overworked. The Commission's overriding objective should be to obtain as full a record as possible, and one would think the NRC would welcome the views of participants.
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| commissioner Asselstine's Proposals NIRS supports Commissioner Asslestine's proposals which attempt to separate the decision on standing from the decision on the validity of contentions. Most important, they would make public all application materials as soon as they are received at a Local Public Document Room.
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| Commissioner Asselstine's proposals are an important first step at attacking t h e ~ problem with NRC licensing hearings:
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| that the hearing nclock begins when an application is docketed 0
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| even though the case is not even remotely ready for hearing, since basic licensing documents aie not available. The NRC and applicants cannot blame intervenors for nlicensing delay when 0
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| the basic materials required to prepare a case are not available.
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| conclusion After the Chernobyl accident, the NRC and the industry proclaimed that such a terrible accident could not happen in the United States because of the freedom of interested members of the public to raise and pursue safety issues in our system. Time and again we have seen intervenors raise legitimate safety concerns that have led to the safer operation at many plants across the country. Former NRC Commissioners, Licensing Board members and Appeals Board members have all spoken of the contribution intervenors have made to the licensing process. But now, after Chernobyl, the NRC proposees a set of rule changes that are designed to make a mockery of that very system of open hearings.
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| The NRC, in this proposal, is attempting to "Sovietize" the licensing process. There is no justification even in terms of expedience to cut back on intervenors' procedural rights. These proposed rules are an an anathema to a fair and open decision-making process. By sacrificing public input, the Nuclear Regulatory Commission System is gambling with the public health and safety.
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| These rules should be rejected.
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| Respectfully Submitted,
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| ~7)
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| -----------~
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| Beatrice Trapasso --------
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| Research Coordinator Nuclear Information and Resource Service 1616 P Street NW, Suite 160 Washington, DC 20036 (202) 328-0002
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| aoeoam
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| {5112~4 & BURLING 1201 PENNSYLVANIA AVENUE, N. W.
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| DANIEL M , GRIBBON STANLEY L . TEMKO P . O. BOX 7566 DON y. HARRIS,JR. JAMES C . McKAY WILLIAM STANLEY, JR, WEAVER W, DUNNAN JOHN W, DOUGLAS H AMILTON CAROTHERS WASHINGTON, D. C . 200 44 DOCKET ED EDWIN M . ZIMMERMAN JEROME ACKERMAN J , RANDOLPH WILSON R OBERTS B. OWEN USNRC HENRY P , SAILER EDGAR F.CZARRA,JR.
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| JOHN H, SCHAFER WILLIAM H, ALLEN ALFRED H . MOSES DAVID B- IS B ELL ( 202) 662-6000 JOHN Lr:MOYNE ELLICOTT JOHN B . JONES,JR.
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| DAVIDE. McGIFFERT PAUL R DUKE WRITER'S DIRECT DIAL NUMBER
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| .86 ~ii\~!~~;25 0
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| H , EDWARO OUNKELBERGER, JR, PHILIP R , STANSBURY BRICE McADOO CLAGETT CHARLES A . MILLER RICHARD A , BRADY PETER BARTON HUTT CHARLES A , HORS KY HERBERT DYM EUGENE I. LAMBERT JOHN T. SAPIENZA JOHN VANOERSTAR MARK A, WEISS JAMES H. McGLOTHLIN NEWMAN T. HALVORSON, JR. HARRIS WEINST E IN ERNEST W, J E NNE S HARVEY M . APPLEBAUM JOHN B. D E NNISTON MICHAELS . HORNE CHARLES F. C. RUFF PETER J , NICKLES JONATHAN 0 , BLAKE (202) 662-5394 0FF IC ~~i~~ ;/c"o"~~~RM~~
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| 0 M ICHAEL BOUDIN BINGHAM B. LEVERICH CHARLES E , BUF" f" ON ROBERT N. SAYLER DOC l~[Tl,~~ " . - ! \ 1 1Cf.
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| ALLAN TOPOL E, EDWARD BRUCE VIRGINIA G. WATKIN DAVID N. B R OWN ~g~~A~:~l~i1~~f~OPER RICHARD D . COPAKEN PAUL J, TAGLIABUE CHARLES LISTER ANDREW w. SINGER OF COU NS C L PETER o . TROOBOF"f" DAVID H , H I CKMAN WESLEY S. WILLIAMS, JR , RUSSELL H, CARPENTER , JR.
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| DORIS Q . BLAZEK NICHOLAS W , f"ELS WILLIAM O. IVERSON THEODORE L GARRETT S , WILLIAM LIVINGST ON , JR. DANA T. ACKERLY TWX: 710 822 - 0005 (C B WSH)
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| JAMES R. ATWOO D JOHN M VINE0 TELEX: 89*593 (COVLING WSH)
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| COLEMAN S. HI C KS JOHN THOMAS SMITH I l TELECOPIER INF"ORMATION:
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| STUA R T C. ST OCK JOHN P. RU P P (202) 6f52-6280 E UG E N E O. GULLAND CLAU S EN E LY, JR . C A BLE: COVL I NG 0, THOMAS JOHNSON, JR . RICHARD f". K l NG HAM E UGENE A. LUDWIG ROB E RT M, SU S SMAN P ATRICIA A. BARALO MICHAEL R , LEVY RODERICK A . DEARMENT REEVES C . WESTBROOK GEORGE B. REIO, JR . THEODORE VOORHEES,JR ,
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| THOMAS S. WILLIAMSON , JR . JEF" f" REY G, HUVE L LE PAUL J. BERMAN JOANNE B . GR O SSMAN WILLIAM P . SKINNER J . MICHAEL HEMMER October 17, 1986
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| * *m GEORGE M, CHES T ER,JR . GREGORY M. SCHMIDT RICHARD A. MES E RVE J, MARK IWRY GREGG H, LEVY ROBERT J. GAGE CAROLYN F". CORWIN ARVID E. ROACH I l
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| "*""'"": 'a muel J. Chil k, Secretary Office of t he Commission United States Nuclear Regulatory Commission 1717 H Street, N.W.
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| Wash i ngton, D.C. 20555 Re: Rules of Practice for Domestic Licensing Proceedings -- Procedural Changes in the Hearing Process, 10 C.F.R. Part 2 (10 Fed.
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| Reg. 25365 (Ju l y 3, 1986))
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| ==Dear Mr. Chilk:==
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| These comments are submitted on behalf of Kerr-McGee Corporation and its subsidiaries (hereinafter col lectively referred t o as '' Kerr-McGee") concerning certain proposed modifications of the NRC rules governing the conduct of licensing proceedings. 51 Fed. Reg. 25365 (Ju l y 3, 1986).
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| Kerr-McGee has been an active part i cipant in several l i censing proceedings and antic i pa t es t hat the proposed ru l e changes, i f adopted, cou l d affect certain pending proceedings involving Kerr-McGee. Kerr-McGee supports some of the changes, but urges that others be substantially modified or rejected.
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| These commen ts fo cus on t he seve ra l i tems t ha t are advanced by the Commi s sion as a whole:
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| Item 2. The NRC proposes to amend §2.714 so as to raise the t hreshold for the admission of contentions. The changes are i n tended to r equ i re an i n t erve no r t o prov i de concre t e in f o r mat i o n that will enabl e t he decision-maker to determine a t an early stage whether a genuine i ssue of dispute exists on a material issue. Kerr-McGee strongly urges that the modification be adopted, with the single mi nor exception noted below. Based on Kerr-McGee's exper i ence, i t appears t hat ve r y gene r a l a nd ambi guous co nt ent i o ns may often be
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| : u. s. NUCLEAR p er
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| * II
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| * T~.,., rn DOCKET !~~
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| OFF' a~
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| r Postm~rk "' t Copies R (
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| Add ' I C Special D 4
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| COVINGTON & BURLING Samuel J. Chilk, Secretary October 17, 1986 Page 2 admitted, with the result that an intervenor is not required to focus the issues and often chooses not to do so. The proposed changes, if vigorously enforced, could provide an important tool in crystallizing disputes at an early stage and thereby significantly improving the efficiency and quality of the hearing process.
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| In one respect, however, the NRC should modify the proposed text. The rule would provide that "[o]n issues arising under the National Environmental Policy Act, the petitioner shall file contentions based on the applicant's environmental report." Efficiency would be better served by requiring the petitioner to focus NEPA contentions on the Staff's impact statement or environmental assessment, rather than the applicant's submissions, because the core of a NEPA dispute customarily concerns the adequacy of the Staff's evaluation.
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| Item 3. The NRC proposes amendment of§ 2.720 to erect certain new barriers that will enable the Staff to avoid the obligation to respond to interrogatories in certain circumstances. Kerr-McGee views these changes as unnecessary and inappropriate and urges that they not be adopted.
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| The Staff seeks to justify the proposed changes on the basis that they merely reflect existing grounds for objection to an interrogatory and that their codification will conserve Staff resources. Even if the premise that the changes reflect existing law were accepted, the Staff's argument can not justify the modifications: a change in the rule so as to authorize the Staff to cite a regulation in lieu of case law would not result in a meaningful reduction of the Staff's workload. Moreover, on closer scrutiny, the changes appear to be far more sweeping than the preamble implies.
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| One change is intended to authorize the Staff to object to an interrogatory on the basis that the information is obtainable from a public document room. The preamble states that under existing NRC practice it is "an adequate response to state that the information is available in NRC public document rooms . *
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| * and to provide sufficient i nformation to enable a party to locate the ma t e r ial requested." 51 Fed. Reg. at 24367 (emphasis added). (The preamble notes further that a "sufficient answer" would include "the title, page reference, and location of the relevant document." Id.) The preamble thus reveals that the rule change would achieve a radical change in existing requirements: if the Staff were entitled to object to an interrogatory on the basis that the information is available in a public document room, it obviously would not go on to respond by providing the information that constitutes an adequate response under existing practice. In light of the
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| COVINGTON & BURLING Samuel J. Chilk, Secretary October 17, 1986 Page 3 Staff's greater familiarity with the materials in NRC public document rooms than the typical proponent of an interrogatory, the existing practice of requiring an NRC answer that identifies responsive materials should be preserved.
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| The proposed rule also would allow the Staff to avoid an interrogatory that probes the Staff's "[r)easons for not using alternative data, assumptions, and analyses where the alternative data, assumptions and analyses were not relied on in the NRC staff review." Although the preamble states that this change is justified by case law holding that a party is not required to engage in extensive independent research, the rationale for the change in fact bears no necessary connection to the proposal. For example, the Staff may well have examined alternative data, assumptions, or analyses and
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| * chosen not to rely upon such material. An interrogatory to probe the reasons for the Staff's action would not require independent research, but the proposal would nonetheless allow the Staff to evade the interrogatory. Indeed, in light of the concession in the preamble that "it would, of course, still be permissible for a party to argue at the hearing that the Staff should performed [sic) additional studies or relied on alternative data," 51 Fed. Reg. at 24367, the rule would serve only to bar discovery on an issue that might be pivotal in the hearing. The proposal thus would serve to defeat the purpose of discovery and should be rejected.
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| Item 4. The Staff proposes to amend§ 2.743 so as to require a party to submit a cross-examination plan to the presiding officer that includes a description of the issues on which cross-examination will be conducted, the objective sought in the cross-examination, and the proposed line of questions. Although the text of the proposed rule is not entirely clear on the point, it appears that the Presiding Officer would be authorized to bar cross-examination that falls outside the scope of the plan.
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| The proposal may serve to allow more efficient proceedings, but at the cost of fact finding through the adversarial process. Experienced litigators frequently encounter situations in which a witness's response to a question opens up avenues for cross-examination that had not been previously apparent. If in such a case the Presiding Officer were to require adherence to a pre-filed cross-examination plan, the opportunity to explore these avenues would be eliminated, with resulting erosion of the hearing process as a vehicle to illuminate the issues fully.
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| Although the adversarial process may in some cases be inefficient, the NRC should not impose a rule that will hobble its capacity to achieve its intended function.
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| COVINGTON & BURLING Samuel J. Chilk, Secretary October 17, 1986 Page 4 Item 5. The proposed amendment of§ 2.749(a) would permit motions for summary disposition to be filed at any time during the proceeding. Kerr-McGee supports this change; it is wise to permit the termination of litigation on an issue at any point at which it becomes apparent that a genuine issue of material fact is no longer in dispute.
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| Items 6 and 7. The proposed amendments of§ 2.754 and§ 2.762 would limit an intervenor's filings at the hearing and in an appellate brief to issues which that party actually placed in controversy or sought to place in controversy.
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| Kerr-McGee supports these changes; consideration of both efficiency and fairness counsel for the adoption of the proposals .
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| * Kerr-McGee submitted separately view these proposals means to improve the is not commenting on the various proposals by Commissioner Asselstine. In Kerr-McGee's do not hold significant promise as a licensing process.
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| y submitted, eter J. Nickles Richard A. Meserve Counsel for Kerr-McGee Corporation
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| EDISON ELECTRIC r--* -
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| Olalll 51 r~
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| lllllllRPR
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| ~
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| .*@ .ARNEY. Seoioc Vice Pcesideot DOCKET ED USNRC INSTITUTE The association of electric companies 111119th Street , N.W. '86 OCT 17 P4 :23 Washington , D.C. 20036-3691 Tel : (202) 828-7400 October 1 7, 19 8&" 1;c~ c:-
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| * OOC ! ,_ 11 '
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| * I, * .
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| Secretary U. s. Nuclear Regulatory Commission Washington, D. C. 20555 Attention: Docketing and Service Branch Re: Proposed Rule: Rules of Practice for Domestic Licensing Proceedings - Changes in the Hearing Process
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| ==Dear Sir:==
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| On July 3, 1986, the Nuclear Regulatory Commission published in the Federal Register a proposed revision to 10 CFR Part 2 regarding the hearing process. The Edison Electric Institute (EEI) and the Utility Nuclear Waste Management Group (UNWMG) are pleased to comment on the proposed rule. EEI is the association of the nation's investor-owned electric utilities. UNWMG is a group of forty-four electric utilities formed specifically to provide active oversight of the implementation of the federal statutes concerning radioactive waste management. The proposed rule affects the interests of EEI and UNWMG since the NRC's Rules of Practice are applicable both to nuclear power plant license amendments concerning spent fuel storage and transportation and to the licensing of waste disposal facilities. EEI/UNWMG' s comments are set forth in the enclosure to this letter *
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| * EEI/UNWMG believes that the proposed rule is a very good first step toward much needed licensing reform.
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| licensing process has become protracted and unwieldy.
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| proposed amendments, particularly the higher threshold for admissibility and contentions, will result in more focused and efficient hearings.
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| The current The The proposed amendments will be of particular benefit to the efficient licensing of high-level waste repositories. The Commission has announced that it will conduct a formal hearing prior to licensing the repositories and has amended its rules accordingly (reference 46 Fed. ~ 13,971 (1981), amending 10 CFR 2.101 ( f) ( 8) )
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| * These hearings will be perhaps the most complex licensing proceedings conducted to date. Therefore, the need for a disciplined, orderly process is particularly great.
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| the proposed amendments will be essential to an incisive, effi-
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| *ient hearing. Without the proposed amendments, the geologic lste repositories may well be held hostage to today's cumbersome ocedures, a situation clearly not in the nation's best interest.
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| nowle
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| ,. s. NUCLE/>R nrr"' " * - roMMISSI08 DC' '"''" .. . rECT ION
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| - RY p
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| C f A
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| S e 1
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| Secretary U.S. Nuclear Regulatory Commission October 17, 1986 Page Two Accordingly, EEI/UNWMG urges the Commission to adopt the proposed amendments and hopes that the Commission will continue to pursue further licensing reform. While the proposed amend-ments are a significant step forward, there remains room for improvement in the licensing process. EEI/UNWMG further recommends that certain changes to the hearing process be implemented specifically for the licensing of high-level waste repositories. For example, EEI/UNWMG recommends that the Commission consider issuance of a preliminary license for "low power" operation and disposal, analogous to a low power reactor operating license that under current practice can be issued prior to the completion of hearings .
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| * EEI/UNWMG commends the Commission for the proposed amendments and appreciates the opportunity to submit these comments.
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| Sincerely yours, arne~
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| JJK:nmd Enclosure
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| Enclosure EDISON ELECTRIC INSTITUTE AND UTILITY NUCLEAR WASTE MANAGEMENT GROUP COMMENTS ON PROPOSED 10 CFR PART 2 I. The Proposed Rule With respect to the proposed amendments to 10 CFR Part 2, five changes to the hearing process are proposed. These changes concern (1) the admission of contentions; (2) discovery against the NRC Staff; (3) the use of cross-examination plans; (4) timing of motions for summary disposition; and (5) limitations on matters and issues which may be included in intervenors' proposed findings of fact, conclusions of law, or appellate briefs. Each of these changes is discussed below. Commissioner Asselstine's alternative proposals, which EEI/UNWMG believes are counter-productive, are also discussed.
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| : 1. Admission of Contentions The proposed rule would raise the threshold for the admission of contentions (reference proposed S 2.714). Under the proposed rule, the proponent of a contention would be required to show the existence of a genuine dispute with regard to a material issue of fact. The proponent of a contention would accomplish this by providing information sufficient to prompt reasonable minds to inquire further as to the validity of the contention.
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| Such information would include an explanation of the bases of the contention, a concise statement of the alleged facts, expert opinion, references which support the contention, and references to pertinent portions of the licensing documents
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| * This change is clearly the most important provision of the proposed rule. Under existing § 2. 714, a contention will be admitted if an intervenor pleads a contention and its basis with reasonable specificity. In practice, § 2.714 has been construed to require an intervenor to do no more than state a reason for the contention. Houston Lightinf & Power Co. (Allens Creek Nuclear Generating Station, Unit 1 , ALAB-590, 11 N.R.C. 542, 548 (1980). Neither inquiry into the legal or factual merits of the contention nor inquiry into a petitioner's ability to support or prosecute its contention is permitted. Id.; Alabama Power Co.
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| (Joseph M. Farley Nuclear Plant, Units rand 2), ALAB-182, 7 A.E.C. 210, 216 (1974).
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| The current standard as applied by licensing and appeal boards is far too weak. It prevents licensing boards from dismissing contentions at the pleading stage even if they are patently insubstantial. Washington Public Power Supply System (WPPSS Nuclear Project No. 1), LBP-83-66, 18 N.R.C. 780, 789
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| (1983); Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1 and 2), LBP-820119A, 16 N.R.C. 2069, 2103 (1982) .1/ These contentions may simply be copied from other proceedings. See ~ , Commonweal th Edison Co. (Byron Nuclear Power Station, Units 1 and 2), LBP-80-30, 12 N.R.C. 683, 686-90 (1980).
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| As a result of such standards, licensing boards have increasingly been deluged with contentions. S e e ~ , Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1 and 2) ,LBP-82-119A, 16 N.R.C. 2069, 2074 (1982) (334 contentions proposed by petitioners). The likelihood for the repository hearing to be overwhelmed with vast numbers of unsupported contentions seems particularly great, given the large number of participants that such a hearing is likely to attract. Once a contention is admitted, an intervenor is entitled to the full panoply of discovery procedures, which may amount to no more than
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| * a lengthy fishing expedition, and thereafter the licensee appli-cant must either pursue summary disposition or litigate the merits (or lack thereof) of the contention in order to have rejected an issue all parties knew was frivolous.
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| resources is self-evident.
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| The waste of The proposed amendment to S 2.714 would reverse this trend.
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| It would eliminate frivolous contentions at the outset of a proceeding. The hearing would be better focused and more effi-cient. Decision making would be improved, since the resources of all parties (including the NRC Staff) and of the licensing board would be devoted to issues which have some minimum level of support, rather than being unreasonably diverted.
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| These objectives are legitimate. Congress has recognized that hearings on nuclear license applications can be unnecessary and burdensome in the absence of "bona fide" interventions .
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| S. Rep. No. 1677, 87th Cong., 2d Sess., reprinted in [1962] U.S.
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| Code Cong. & Ad. News 2207, 2212. Similarly, the judiciary has recognized the propriety of predicating hearing rights on compliance with reasonable procedural requirements. BPI v. AEC, 502 F.2d 424, 428-29 (D.C. Cir. 1974); Office of Communication of the United Church of Christ v. FCC, 359 F.2d 994, 1005-06 (D.C.
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| Cir. 1966). The standard proposed by the Commission to achieve 1/ In Shearon Harris, the Licensing Board accepted a contention that a saboteur might introduce clams, oysters, or barnacles into the plant's cooling tower water which might then clog most of the condensers simultaneously and block access to the heat sink. Finding this "clam and barnacle scenario" inconceivable, the Board nevertheless concluded that the contention was admissible under current standards.
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| its objectives has been specifically upheld. Costle v. Pacific Legal Foundation, 445 U.S. 198, 214 (1980); Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 620-21 (1973); Vermont Yankee Nuclear Power Cor. v. NRDC, 435 U.S. 519, 553-55 (1978) upholding the threshold standard articulated in Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-123, 6 A.E.C. 331, 345 ITT75) >.
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| : 2. Discovery Against the NRC Staff The proposed rule (reference§ 2.720(h) (2) (ii)) would codify two precedents regarding responses to interrogatories: ( 1) that it is an adequate response to identify a specific source where the requested information can be found (Metropolitan Edison Co.
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| (Three Mile Island Nuclear Station, Unit No. 1), CLI-79-8, 10 N.R.C. 141, 147-48 (1979)); and (2) that a party is not required to engage in extensive independent research to respond to an interrogatory (Penns lvania Power and Li ht Co. (Susquehanna Steam Electric Station, Units 1 an 2, ALAB-6 , 12 N.R.C. 317, 334 (1980)). These precedents avoid undue burdens of discovery.
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| EEI/UNWMG believes the well-recognized precedents above are reasonable and supports their codification. Several changes to the proposed rule, however, are necessary to codify the prece-dents accurately.
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| As the rule is presently proposed, the presiding officer of a licensing board would be required to determine that the information requested by an interrogatory is not reasonably available from any other sources (such as the NRC's public document room) before the NRC Staff is obliged to respond to the interrogatory. This procedure is not consistent with NRC precedent, since it converts a method of response (i.e., citation to a specific document) into grounds for non-response. As a practical matter, a licensing board is unlikely to be able to determine on its own whether information requested by an inter-rogatory is available in the public document room or from other sources. This inability might in turn prompt a flurry of pleadings and arguments between parties and the NRC Staff in order to determine the NRC Staff's duty to respond. Arguably, the Staff might have to identify the location and content of a particular document in order to show the information is available from other sources, and in such cases the Staff might just have well responded at the outset. It would, therefore, be more practical and truer to precedent to instead have the NRC Staff determine in the first instance whether information requested by an interrogatory is available from other sources and, if so, to respond to the interrogatory by citation.
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| In addition, the proposed rule states too broadly the precedent that a party is not required to perform additional research to respond to an interrogatory. First, the proposed
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| rule would prevent inquiry concerning why the Staff did not use a different analysis in its review of a license application. Such an interrogatory seeks an explanation, not necessarily further research, and may therefore be legitimate. Second, the proposed rule prohibits interrogatories requiring the performance of additional research or analytical work "beyond that which is needed to support the NRC Staff's position on any particular matter." The quoted phrase invites argument about what is "necessary" and unduly limits the objection. The phrase should be stricken.
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| Accordingly, EEI/UNWMG suggests that the proposed § 2. 720 (h) (2) (ii) be reworded as follows:I/
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| (ii) In addition, a party may file with the presiding officer written interrogatories to be an-swered by NRC personnel with knowledge of the facts
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| * designated by the Executive Director for Operations.
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| Upon a finding by the presiding officer that answers to the interrogatories are necessary to a proper decision in the proceeding aRe--t:fl-frt:-~1:'-S--~e-~-~ft-ee~Pega-
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| ~e~iee-~-'fte't--~1-y---oo-t.-tH.-ftftb.l~-~~em--a-ny--e~~e~
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| eett~ee,-suen---a-e--~~-~fte--e-omm-i-s-s-:i--on-'-s-~~.:i:-e--Bee'l:!HleH~
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| Reeffl--e~--:&eea-~--Pttb-~.:i:e--~-~, the presiding officer may require that the staff answer the inter-rogatories. Such interrogatories may seek to elicit factual information reasonably related to the NRC staff's position in the proceeding, including data used, assumptions made, and analyses performed by the NRC staff. Such interrogatories may not, however, be addressed to, or be construed to require:-~M--He-frs-ons
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| ~er--fiM---tl"S":i-ng--~-~,--a&&l::Hft~~~ft~r--aHe aHa+/-yeee-~--ehe--a+/-~e~~a'eive-~-~~;-aHe aHa+/-ysee-we~e-He~-~e+/-iee-eH-iH-~~e-NRe-e~aif-~eview~-e~
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| ~Br [p]erformance of additional research or analytical work :eeyeRe-~ -wll ~ell--i--e- -Re edee- - - t : & - ~ n - ~fte- -NHC e ~ a :E f .1. ~ --pos-i-1:i-on- --e-ft - ~ ~.i-eu-~- ffltt ae ie e ~ . [ The NRC staff may respond to interrogatories by providing specific citations to documents containing the request-ed information.]
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| EEI/UNWMG further recommends that§ 2.740b also be amended to codify the precedents in CLI-79-8 and ALAB-613. These precedents are applicable to all parties, not just to the NRC Staff. The application of these precedents to discovery directed to the Department of Energy in hearings on high-level waste 2/ The words that are lined out are those that EEI/UNWMG recommends be deleted, while the words in brackets are those EEI/UNWMG recommends be added.
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| repositories would be particularly appropriate. In such a proceeding, DOE would be in much the same position as the NRC Staff is in reactor licensing proceedings, having established public document rooms and having detailed its analyses in publicly-available documents. Codifying the precedents with regard only to the NRC Staff might in fact suggest that the precedents are not available to other parties.
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| : 3. Cross-Examination Plans The proposed rule would require a party to obtain the permission of the presiding officer in order to conduct cross-examination and would bar the presiding officer from considering any request to conduct cross-examination unless the request was accompanied by a cross-examination plan containing specified information (reference§ 2.743) .
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| * This proposal is constructive and would considerably improve the hearing process. Cross-examination is frequently conducted by unskilled intervenors, thereby protracting the proceeding.
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| Tourtellotte, Nuclear Licensing Litigation: Come On In, the Quagmire Is Fine, 33 Ad. L. Rev. 367, 375 (1981). Requiring the preparation of cross-examination plans would encourage a party desiring to conduct cross-examination to think out the questions in advance and would result in better questioning and a shortened proceeding. Indeed, past experience has demonstrated that cross-examination plans improve the quality and focus of cross-examina-tion, improve a licensing board's ability to control the proceed-ing, and create a better record for decision making. Cotter, Nuclear Licensin: Innovation Throu h Evolution in Administrative Hearings, 34 Ad. L. Rev. 497, 519 1982 .
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| EEI/UNWMG supports this amendment wholeheartedly, but also suggests that the Commission further amend S 2. 743 to bar an intervenor from conducting cross-examination on issues that the intervenor did not place in controversy. This additional amend-ment would be consistent with the other Commission proposals (discussed below) to limit an intervenor's findings of fact and appeals to issues that the intervenor placed in controversy. It would eliminate repetitious cross-examination. It would also prevent "non-adverse cross-examination", a frequent abuse where one intervenor in effect introduces new direct testimony into a proceeding on another intervenor contention.3/ Given the expected scope and number of parties to a repository licensing proceeding, these constraints are of even greater significance.
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| 3/ The Commission should similarly consider amending its rules to bar an intervenor from engaging in discovery and proffer-ing evidence addressing contentions of other parties.
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| : 4. Authority of Presiding Officer to Dispose of Certain Issues on the Pleadings The proposed rule would permit motions for summary disposi-tion to be filed at any time during the proceeding (reference S 2.749 (a)), thereby providing greater flexibility in the hearing process and promoting efficiency; the resolution of issues would be permitted at any point when it becomes apparent that further prosecution is unnecessary. EEI /UNWMG notes that S 2. 749 (c) would continue to protect a party who for valid reasons cannot respond to a motion for summary disposition, and thus the amendment would work no hardship or inequity on the proponents of contentions.
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| : 5. Proposed Findings and Conclusions, and Appeals to the Commission From Initial Decisions The Commission's last proposal is to limit an intervenor's proposed findings and an intervenor's appeals to issues that the intervenor placed in controversy (reference §§ 2.754(c) and 2.762(d)). This proposal, too, has considerable merit. It will ensure that such filings are submitted by parties who have a real concern and interest in the resolution of the issues and will also eliminate redundant filings. In view of the likely scope and complexity of repository licensing proceedings, these limita-tions can significantly simplify the process without impinging on the rights of any party. As discussed above, EEI/UNWMG urges the Commission not only to adopt this policy but to extend it to discovery and evidence.
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| II. Proposals of Commissioner Asselstine While the proposals of the majority of the Commission contribute to a better hearing process, Commissioner Asselstine's proposals will clearly encumber the hearing process further.
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| In essence, Commissioner Asselstine proposes permitting any person with standing to become a party to a proceeding. All admitted parties would then have ninety days to formulate contentions. The proposed contentions would undergo an "initial screening" and would be "provisionally" ad.mi tted if the facts alleged would entitle the intervenor to relief, if true. The intervenor would then be entitled to full discovery on all such contentions.
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| These proposals will open the floodgates for intervention and dilatory practices. At a time when the hearing process has been found unacceptably inefficient, particularly with respect to its inability to screen out frivolous issues, Commissioner Asselstine is proposing to reduce the standard for admitting contentions. His proposed standard would not even require a
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| basis or reason for the contention. These proposals would not only condone but actually encourage filing contentions that have no basis whatsoever.
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| With respect to the proposal to admit as a party any person with standing, Commissioner Asselstine argues that the present process is inefficient because it requires persons who do not have the requisite interest to spend the time, effort and money drafting contentions before learning that they will not be entitled to proceed. This argument appears to be without basis.
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| The solution to Corrnnissioner Asselstine's concern is not to admit as parties all persons with standing at the very outset of the proceeding, but rather to reject at the outset those persons who lack standing. The licensing boards already have the authority to reject petitions to intervene prior to the submission of contentions, and in practice, typically do so. S e e ~ , Georgia Power Co. (Vogtle Electric Generating Plant, Uni ts 1 and 2) ,
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| Docket Nos. 50-424 & 50-425, Memorandum and Order (March 9, 1984)
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| * III. Conclusions EEI/UNWMG commends the Corrnnission for the proposed amend-ments and urges their passage. The Commission's proposals reflect five years of study and the recommendations of the NRC's Regulatory Reform Task Force, the NRC' s Se,nior Advisory Group, the Ad Hoc Committee for the Review of Nuclear Reactor Licensing Reform Proposals, and the Conunissioners themselves. The proposals are rational and well-reasoned responses to the universally recognized need to improve the NRC hearing process.
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| Improvements to the hearing process are particularly in order for the licensing of the geologic nuclear waste repositories. The added discipline which will result from the proposed amendments is an important component in achieving a rational adjudicatory process.
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| -- ~
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| DA VE FROHNMA YER ( ! ! J ! , ,llIAM F. GARY ATTORNEY GENERAL DEPUTY ATTORNEY GENERAL STATE OF OREGON OOC:KET EO USN RC DEPARTMENT OF JUSTICE Justice Building "86 OCT 17 P12 :31 Salem, Oregon 97310 Telephone: (503) 378-4400 October 16, 1986 ATTN: Docketing and Service Branch Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, DC 20555
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| * Re: Proposed Amendments to 10 CFR Part 2, Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process
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| ==Dear Sir:==
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| On July 3, 1986, the commission published notice of proposed amendments to 10 CFR Part 2, Rules of Practice for Domestic Licensing Proceedings. (51 Fed Reg 24365.)
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| The State of Oregon, by its Attorney General, Dave Frohnmayer and its Oregon Department of Energy (hereinafter ODOE}
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| has reviewed the proposed rules and submits the following comments.
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| Oregon is opposed to extending the existing rules for licensing production and utilization facilities to licensing procedures for high level nuclear waste repositories. We urge reconsideration of that decision. Licensing for construction and operation of such a repository should be considered in a more open procedure which would permit all affected states, whether or not they are host states, to participate fully in the exploration of the technical feasibility of the repository. Such participation would help allay citizen concerns, will establish that the decision rests on the most sound basis, and should not delay the licensing process. Recognizing that that decision has already been made, should the Nuclear Regulatory Commission (NRC}
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| not wish to reconsider, we offer the following comments on the draft rules. While these comments apply with greatest force and vigor to the licensing procedure for high level nuclear waste repositories, they also apply to licensing procedures for production and utilization facilities.
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| : .. S. ~ " R ? Ril:GUI..ATQRY COMMISSION TING, & SERI/ICE "ANCH flC.E OF THE S[CRE. TARY, 0 IHE co ..11 1:.::,1J
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| .,., --*~
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| Secretary of the Commission October 16, 1986 Page Two COMMENTS OF THE STATE OF OREGON ON PROPOSED AMENDMENTS TO 10 CFR PART 2, RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEEDINGS -- PROCEDURAL CHANGES IN THE HEARING PROCESS
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| : 1. Intervention: Rule 2.714(b) and Rule 2.714(d)(2)(ii)
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| The proposed amendments inappropriately tighten the requirements for intervention. The Nuclear Waste Policy Act (NWPA) contemplates extensive review and analysis before a repository for the nation's high level waste is fully operational. The emphasis is not on speed, but upon careful consideration. NWPA's first purpose is to
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| ****provide a reasonable assurance that the public and the environment will be adequately protected from the hazards posed by high level radioactive waste***" 42 USC S 1013l(d)(l).
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| The licensing procedure for nuclear power plants for example raises few technical issues that cannot be anticipated. The proposed high level nuclear waste repositories, on the other hand, will be a new phenomenon. These repositories present many issues over which there is extensive academic debate, but little practical experience.
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| There is more at stake as well. Wastes will remain at the site much longer than at nuclear power plants. By the time of licensing, the affected states will have invested much effort and many years in technical studies of these new issues. But for all their efforts, the states may not have information of sufficient importance, standing alone, to qualify for full intervenor status under the new rules. This would be a travesty if the information that the states have provides a key to understanding a problem or reveals a new and significant problem when considered in conjunction with technical studies presented by other parties.
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| No reliable understanding of any technical or scientific knowledge can ever be achieved from information developed in splendid isolation. Therefore, instead of restricting the intervenors, NRC should broaden the class 'of potential intervenors to mandate intervenor status for all affected states, without making the showings that the new rules require.
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| Secretary of the Commission October 16, 1986 Page Three Participation should not be limited to "host" states in which the repository operations area will be located. Oregon, for example, would have an interest in determining the safety of the Hanford facility (should it be selected) because of the proximity to the Columbia River. The Columbia flows between Oregon and Washington, and is a major water resource for northern Oregon.
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| Although NRC rules do not guarantee non-host affected state, the right to participate in licensing proceedings for either repositories or for production and utilization facilities, states' technical resources and keen interest will permit them to make a contribution that will be beneficial to the NRC, and to the public generally. No such state should be required to meet the requirement of Rule 2.714 for intervention in any type of licensing proceeding, but especially for a respository.
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| Oregon urges adoption of the following language to be added to Section 2.714(b):
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| "The provisions of this subsection shall not apply to any host State, any other affected State or affected Indian Tribe, in any proceeding involving an application for license to receive and possess high level radioactive waste at a geologic repository operations area, under Part 60 of this chapter or in any other licensing proceeding.n Oregon urges that 10 CFR 2.714(d), 10 CFR 60.16(b) and 10 CFR 60.63 be amended similarly to make clear (or to provide) that that non-host affected states shall also have an unquestioned right to participate in licensing proceedings and prelicensing colloquy with NRC. Section 2.714(d)(2)(ii) should be deleted.
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| : 2. Discovery of NRC Personnel: Rule 2.720(h)(2)(ii)
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| The proposed discovery restrictions will not foster the in-depth understanding of the technical aspects of site selection that NWPA requires. Full exchange of scientific data, complete discussion of analytical techniques and candid sharing of the reasons for making and rejecting assumptions can only help all scientific experts to a better understanding of the new inquiries that are a necessary part of the repository siting process. By
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| Secretary of the Commission October 16, 1986 Page Four the time the NRC licensing proceedings are held, affected states such as Oregon will have studied the technical issues for years and will have spent many dollars on expert analyses. They will therefore be in a position to make a postive contribution to the examination of these previously unconsidered issues surrounding the licensing of a high level nuclear waste repository. However, in order to obtain the optimum level of understanding, the state's experts must have the benefit of the thinking of the NRC's staff on critical issues such as hydrology and geology.
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| Full consideration of the scientific and technical studies requires verification that the most accurate description or best mathematical model of the area be used. This holds true for both high level nuclear waste repository licensing and for licensing of production and utilization facilities. NRC should demand licensees have answered the most revealing studies and worst case scenarios. The flaws in a model of a situation or a system are more often discovered by examining the problem from a different approach or using different techniques than in reviewing the path already chosen. Should such a flaw be present, we are certain that NRC would want to have it exposed. Cross pollination of ideas will achieve that goal. Discovery of NRC staff on technical issues should be unencumbered, in all licensing proceedings.
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| The State of Oregon proposes that the section should be amended by deleting the last two sentences, and read as follows:
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| * n(ii) In addition, a party may file with the presiding officer written interrogatories to be answered by NRC personnel with knowledge of the facts designated by the Executive Director for Operations. Upon a finding by the presiding officer that answers to the interrogatories are necessary to a proper decision in the proceeding and that answers to the interrogatories are not reasonably obtainable from any other source, such as from the Commission's Public Document Room or Local Public Document Room, the presiding officer may require that the staff answer the interrogatories.n
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| Secretary of the Commission October 16, 1986 Page Five
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| : 3. Cross-Examination of Witnesses: Rule 2.743 The proposed rules require submission of a detailed cross-examination plan before any party will be permitted to conduct cross-examination of a witness._ .However, the direct testimony of the witness in written form is not required to be served until 15 days in advance of the session in which it is to be offered. This is not sufficient lead time to prepare and submit cross-examination plans. The thrus~ of the NRC's rules amendments in this area seems to be to cut down on the clutter in the trial record. However, preparing a cross-examination plan
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| ** that surgically cuts to the critical issues requires time for analysis, cross-checking other studies and literature, and thought. Providing an extra 15 days to prepare a cross-examination plan will, we predict, better assist the NRC in achieving one of its purposes.
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| It is at best, a very difficult task to prepare a brief written description of the issues, objectives and proposed line of questions that will be pursued in cross-examination. The additional requirement that the cross-examination plan postulate answers that are anticipated, is unrealistic and draconian. The cross-examiner, to be effective, needs to probe wherever the witnesses' answers might reasonably lead. Preclusion of this inquiry can only conceal some.potentially critical information from NRC.
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| Cross-examination is not conducted (as the amendments seem to indicate) for the purpose of harrassing a witness, but rather cross-examinations explore thought processes and obtain information about assumptions, methodologies and data that would be useful to the NRC in making its decision. Because the technology in licensing decisions involving high level nuclear waste repositories is not settled, questions of scientific and technical merit will be addressed in the first instance. NRC will need all the information it can get to make a decision between conflicting studies.
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| As an example, if two witnesses present written statements diametrically opposed on the existence of a disqualifying fissure at the Hanford respository site, extensive probing and cross-examination of both witnesses may lead each to a deeper level of understanding incorporating the criticisms. This would not otherwise occur. And without effective cross-examination,
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| Secretary of the Commission October 16, 1986 Page Six there would be no basis upon which NRC can make a determination on the relative weight to be applied to each of the two statements. Restriction of cross-examination is a false economy if the goal of this amendment is to achieve expeditious and yet reliable licensing decisions. Rather than sacrifice cross-examinations, NRC should be pursuing a more open and less formal*proceeding, for repository licenses. A well-done cross-examination is equally beneficial in other licensing proceedings.
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| We note in passing that should NRC's restricted discovery of NRC's staff stand, it may be next to impossible to predict answers of NRC staff on cross-examination
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| * The State of Oregon proposes that Section 2.743(b)(2)(iii) be deleted.
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| : 4. Summary Judgment: Rule 2.749(a)
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| The proposed rule provides that summary judgment motions may be submitted at any time. Submission of a summary judgment motion, and the time that it requires to prepare an adequate response, can be unnerving and more distruptive of the proceedings than the current practice. Moreover, it will not be cost effective. Stopping to answer a summary judgment motion may interfere with a party's proposed order of proofs, usually designed to explain and persuade. This will make the proceeding less easily understood to NRC *
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| * It would be more logical for the presiding officer to segregate issues at the outset for case management purposes, and designate appropriate times for summary judgment (in advance of proofs) so that all parties may anticipate these times in making their presentations. Permitting the filing of summary judgment motions at any party's whim, however, can be disruptive of the proceedings and wasteful of everyone's time if abused aggressively as a trial tactic.
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| Oregon requests the amendment not be adopted.
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| : 5. Proposed Findings, Conclusions, and Appeals:
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| Rules 2.754(c) and Rule 2.762(d)
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| Affected state intervenors should not be restricted to filing proposed findings, conclusions and appeals on issues
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| Secretary of the Commission October 16, 1986 Page Seven raised by them at the outset of the hearing. It is likely that issues may arise during the course of proceedings upon which the affected state has the ability to present a comment or to help construct a new method of analysis. These are issues upon which the affected state is uniquely situated and qualified to submit proposed findings and appeals, and yet they may be issues which no one could anticipate at the outset. Practically speaking, NRC's new rule would deprive it of valuable input from the party with the most interest in a particular issue, and in the best position to help clarify the issues through findings, proposals and briefs. Production and utilization facility licensing and especially high level nuclear waste repository licensing are not the types of situation in which any governmental agency should want to limit the input it receives.
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| Oregon requests the amendments not be adopted.
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| Respectfully submitted, STATE OF OREGON LYNN FRANK, Director DAVE FROHNMAYER Oregon Department of Energy Attorney General
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| * ty Director Oregon Department of 625 Marion Street NE Salem, OR 97310
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| ~MES E. MOUNTAIN, pecial Counsel to Attorney General PAUL A. GRAHAM WALTER PERRY, III MARGARETE. RABIN LINDA R. RODGERS Assistant Attorneys General Justice Building Salem, OR 97310 Telephone: (503) 378-6002 LRR:tlaH-3/nrc5.l/.7
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| r OOCKETEr.
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| US NHC
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| *86 OCT 17 P12 :33 State of North Carolina LACY H. THORNBURG Department of Justice
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| /1. TI'ORNEY GENER/1.L P.O. BOX629 OFF ICE '...' :r :. . f, r RALEIGH OO CK E.T!NG s; ;-:vl Cf.
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| BR;,i'IL)!
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| 27602-0629 16 October 1986 Samuel J. Chilk Secretary of the Commission U. s. Nuclear Regulatory Commission 1717 H Street, N.W.
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| Washington, D. c. 20555
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| * Attn:
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| ==Dear Sir:==
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| | |
| Docketing and Service Branch The Attorney General is permitted by statute (N.C. Gen. Stat.
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| 62-20) to intervene in legal, quasi-legal and administrative proceedings concerning public utilities which affect the interests of the using and consuming public of this state. Pursuant to this authority, we have intervened in many proceedings before agencies that are responsible for reviewing nuclear power plants to ensure:
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| (1) that these plants are necessary to meet the consumers needs, (2) that they are safely designed, built and operated: and, (3) that the most suitable types and mixes of generation have been considered. Although we have not always prevailed before these agencies or agreed with their determination, we have felt that, with few exceptions, the process permitted the public's perspective to be adequately and fairly communicated to the decision-maker.
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| After reviewing the newly proposed NRC rules governing pro-cedural changes in the hearing process, we are concerned that the public's ability to communicate will not be similarly protected in the aforementioned hearings. The proposed rules are not likely to facilitate meaningful participation in the hearing process: rather, the newly proposed rules, under the guise of enhanced efficiency, seem designed to severely circumscribe the public's ability to participate in proceedings which will greatly affect their lives.
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| While we find much of the proposal to be objectionable, three provisions are especially onerous: (1) Section 2.714 concerning the admissions of contentions, (2) Section 2.720 which limits the use of subpoenas and discovery against the NRC staff, and (3) Section 2.743 regarding cross examination during hearings.
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| OCT 2 2 1986 AcknoWtedged by card *** Tfi ****** , , ,
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| Page 2 October 16, 1986 Please consider the following comments. As the text accompanying the proposals makes clear, 10 C.F.R. § 2.714 would substantially raise the threshold for admissibility of contentions for all litigants. It would require an intervenor wishing to litigate a contention in the licensing hearing to list each issue and specify a portion of the licensing application concerning that issue that he disputes prior to the hearing. In addition, the intervenor would be required to list the sources and expert opinions upon which he relies to support his contention. This proposal represents a radical departure from present practice which
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| * requires only that the intervenor provide a list of issues to be litigated and the reason why the contention should be examined.
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| With the time and fiscal constraints that this office and many other intervenors face, this provision will effectively eliminate public inquiry in these proceedings and needlessly divert scarce personnel and fiscal resources.
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| In 10 C.F.R. § 2.720 the NRC has proposed that interroga-tories to the staff be limited to factual information relating to the staff's position in the proceeding. Inquiries concerning alternative data, assumptions or analysis which were not relied upon by the NRC would no longer be permitted. The NRC staff, the party with technical expertise and resources, is not required to examine all alternatives to its recommendation before or during the decision-making process. Thus, its decision will be un-challenged in most instances. This is an unwise policy to adopt *
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| * Finally, in 10 C.F.R. § 2.743 the NRC has proposed severe restrictions on the right to cross examine witnesses. It has proposed that litigants be required to obtain special permission from the hearing officer to cross examine witnesses. Further, it has proposed that litigants file a cross examination plan which lists the proposed line of questions that they will pursue as well as postulated answers which might reasonably result therefrom.
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| Failure to comply with this proposal or to satisfy the hearing officer that the proposed cross examination is necessary will result in the summary denial of a party's right to cross examine.
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| This represents a departure from traditional administrative and judicial practice which the NRC attempts to justify by reliance on caselaw. The reliance, however, is misplaced. While caselaw and prior administrative practice do provide support for requiring parties to bear the burden of demonstrating the necessity for cross examination, they have never suggested that barriers be used to actively preclude public litigants from participating in these proceedings.
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| Page 3 October 16, 1986 In conclusion, we wish to restate our opposition to the pro-posed changes. They are extremely burdensome and will severly limit public participation in these proceedings of vital concern.
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| The NRC, as recently as the Chernobyl disaster, has recognized that public participation is an important safeguard and provides a check on our review process. Furthermore, the Attorney General firmly believes that intervenor participation in the past has improved the ultimate safety of the plants and the public. Thus, more, not less, participation must be encouraged. These proposals should
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| * therefore be rejected.
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| Sincerely, LACY H. THORNBURG Attorney General
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| ~~u.J.~
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| Lemuel W. Hinton Assistant Attorney General LWH/jw
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| I y CASE
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| ( CITIZENS ASSN. FOR SOUND ENERGY) 1426 S. Polk Dallas, Texas 214/946-9446 DOCKETED 75224 US NRC October 16, 1986 FEDERAL EXPRESS il8IG'f .
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| "'---~~
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| Mr. Samuel J. Chilk '/5/
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| Secretary of the Commission Le U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Attn: Docketing and Service Branch
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| ==Dear Secretary Chilk:==
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| ==Subject:==
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| Proposed Rule: 10 CFR Part 2 -
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| Rules of Practice for Domestic Licensing Proceedings -- Procedural Changes in the Hearing Process (FEDERAL REGISTER/Vol.
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| 51, No. 128/Thursday, July 3, 1986/
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| Proposed Rules/Pages. 24365 ff.)
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| CASE (Citizens Association for Sound Energy), the only remaining intervenor in the operating licensing hearings jJ_/ for the Comanche Peak nuclear power plant under construction near Glen Rose, Texas, wishes to make the following comments regarding the proposed rule changes to 10 CFR Part 2 as noticed in the July 3, 1986 edition of the FEDERAL REGISTER (see above subject), response date for which was amended in the September 3, 1986, FEDERAL REGISTER, Vol. 51, No. 170, FR 31340-31341.
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| ==GENERAL COMMENT==
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| S It is with great difficulty that CASE words its responses to these proposed rule changes, for several reasons. First, we consider them to generally be outrageous, and it appears to us to be a deliberate attempt to
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| /1/ CASE is also an accepted intervenor in the construction permit application proceeding for Unit 1 of Comanche Peak, which has recently been returned to the CPA hearing Board by the Appeal Board.
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| 1 Acknowtedge(f by ca ref* *TIT~-:;~ 1~ i ~ : .
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| circumvent the intent of Congress and the Atomic Energy Act, and to achieve by a rule change what the utilities and the nuclear industry have been trying very hard, but have been unable, to achieve by Congressional action.
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| Second, the proposed rule changes would drastically decrease whatever assurance might currently exist that the public's health and safety is being protected. Third, if the NRC adopts the proposed rule changes, any remaining confidence which the intervenors and the public might have in the NRC's regulatory process and in the NRC's ability to protect the public health and safety will be severely and irreparably damaged -- and the NRC itself will have deliberately brought such damage on itself. Fourth, the proposed rule changes throw any semblance of due process rights of intervenors right out the window, and reduce the already severely flawed intervention process to a farce. CASE thought long and hard, and had much internal debate before we initially decided to intervene in the Comanche Peak licensing proceedings in 1979, because there were many among us who believed that the regulatory process was already so severely flawed and the deck so stacked that for us to intervene would only add credibility to a process which was, even at that time, not credible.
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| More specifically, each of the proposed rule changes would, if approved, severely restrict CASE's rights in the ongoing hearings, as well as the rights of other intervenors across the country. In general, we are opposed to the proposed changes, and conclude that each change would have a devastatingly negative impact on current and future intervenors in licensing proceedings for nuclear plants throughout this country. As a result, there 1 would be, in CASE's opinion, a correspondingly devastating and negative decrease in the probably of the public's health and safety due to these 2
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| I!
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| unjustified and unwarranted restrictions of the rights of the public to participate meaningfully in a fair and impartial administrative proceeding.
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| If our comments sound abrupt at times, it is because we are, quite frankly, appalled at these proposed changes, which would take the NRC's rules of practice so far outside the Federal Rules of Evidence and which so severely handicap the search for the truth in NRC licensing proceedings.
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| Had these proposed rules been in effect earlier: the Comanche Peak Applicants would never have admitted, had to come grips with, or ultimately
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| * had to correct the many problems in construction and QA/QC identified by the NRC's Technical Review Team; the severe design problems regarding pipe supports would never have even been recognized, much less corrected; and the severe design problems regarding cable tray supports would never have even been recognized, much less corrected /2/ before the plant was granted an
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| /2/ Applicants' consultant, Cygna Energy Services, came into the May 1984 hearings stating (Cygna's Draft Phases 1 and 2 Report):
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| "In conclusion, Cygna has found that the cable tray supports within the Cygna scope are adequate * * * "
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| -- Report at page 4-12 See also Tr. pages 13591, line 13, through 13592, line 3, of the 5/2/84 hearing transcript, wherein Cygna's counsel indicated emphatically that Cygna still did not believe or recognize that there were any serious and significant problems with either the pipe supports or the cable tray supports.
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| It was not until January 25, 1985, that Cygna stated, in a letter to the NRC Staff's Vince Noonan (Cygna letter 84056.050, January 25, 1985, Attachment B, Sheet 2 of 6, which was supplied as Attachment A to Cygna's 9/6/85 Response to Board's Memorandum (Information Concerning Cygna Independence):
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| "3. Cable Tray/Conduit Supports (Phase 2 and 4)
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| "Cygna reviewed cable tray support design as part of the Phase 2 work scope and is currently reviewing both cable (continued on next page) 3
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| operating license. Further, the numerous additional design and construction problems which Applicants themselves are currently finding would not have been identified or corrected before the plant was granted an operating license.
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| fl) (continued) tray and conduit support designs as part of the Phase 4 work scope. As a result of the Phase 4 reviews, Cygna
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| * is withdrawing all Phase 2 conclusions for both technical adequacy and design quality assurance of cable tray support design." (Emphasis added.)
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| And on February 19, 1985, Cygna reversed it previous position on the issue of stability of pipe supports (one of the most hotly contested design issues in the proceedings, which Applicants had consistently denied was even a problem), and took a position which basically supported CASE's position. Cygna's 2/19/85 letter (which was attached to CASE's 2/25/85 Notification of New and Significant Information and CASE's Supplement to CASE's 10/15/84 Motions and Answer to Applicants' Motion for Summary Disposition Regarding Stability of Pipe Supports) stated, in part:
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| "If individual support stability is not assured, system stability is not guaranteed. The instability of one support can trigger the progressive instability of adjacent supports by causing the limits of the forces and displacements to which the adjacent supports were originally designed to be exceeded. This may result in the formation of plastic hinges in the pipe (due to overload) which in turn may develop into a collapse mechanism." (Emphases added.)
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| It is obvious that we are not dealing with unimportant or frivilous problems with which CASE is concerned, but with design problems which can have severe adverse effects on the public health and safety if they are not: promptly and properly identified; their root causes and generic implications promptly and properly pursued, and measures taken to prevent their recurrence or spread to other areas; and promptly and properly corrected before the plant is granted an operating license.
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| Were there any further doubt as to the extent or seriousness of the problems at Comanche Peak, one has only to look at the Applicants' own 7/30/86 First Progress Report (and attachment, TUGCO Letter #TXX-4844 (6/9/86), copy of which was sent to the Licensing Board by Applicants under cover letter dated 8/1/86) and 7/30/86 Annotated Bibliographies.
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| 4
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| In fact, CASE believes that if we had had to become an intervenor and proceed in a hearing under some or all of these suggested "improved" rules, Comanche Peak with all or most of its problems (only acknowledged after many hearings and over many years) yet unsolved, would have been granted an operating license -- perhaps with devastating consequences to the public health and safety. Not the NRC Staff, nor the Commission, nor the Applicants (if one can believe one of their own filings fl!) would now want that to have happened. But that is exactly what most probably would have
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| * happened if these proposed rules had been in effect at the time, and possibly if they are put into effect in the future.
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| CASE must consider the possibility that this is, in fact, part of the reason for the proposed rule changes - which would, in effect, amount to the open adoption by the NRC of the attitude that nuclear power plants must be licensed whether they are safe or not.
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| In short, these proposed rule changes appear to CASE to be a blatant attempt to get rid of intervenors such as CASE (or cut down their ability to work within the regulatory system to such an extent that it would have virtually the same effect). Certainly, this would be the result of their adoption. If this is indeed the position of the NRC, why doesn't it just come right out and say that this is its intent and be done with it?
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| /3/ In their 6/28/85 Applicants' Current Management View and Management Plan for Resolution of All Issues, the Applicants in the Comanche Peak proceedings stated (page 7):
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| "TUGCO management is not satisfied with the status of the plant and would not proceed to operate it, even if authority were to be granted, until all of the outstanding concerns have been addressed, their safety significance determined, generic implications and collective significance considered, and necessary corrective actions have been completed."
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| 5
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| Section Comments Intervention (10 CFR 2.714) Admission of Contentions - Item 2 This proposal, which raises the threshold of the admissability of contentions, will not accomplish its intended purpose of" * *
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| * sharpen(ing) the issues in dispute throughout the proceeding * * * ", but will instead, unjustifiably remove entire issues from consideration in the hearing at all.
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| Intervenors may have legitimate concerns(~, concerns based on information obtained from "reliable sources" onsite, or questions arising from the PSAR, etc.) - but for which documentation may not be publically available from either the plant's owners or from the NRC prior to acceptance as an intervenor in a hearing and the opening of the discovery process as set forth in the regulations. CASE is all too aware (as are other intervenors) that even during the hearing process, the legitimate use of the discovery process by an intervenor can be a grueling exercise in frustration, with every request met with an applicant's objections, pleas for extensions of time, and (if all else fails) requests for protective
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| * orders to prevent the release of data deemed critical by the intervenor to its case.
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| If the discovery process for the acquisition of discoverable documentation is so fraught with difficulties for an intervenor after acceptance as an intervenor in the hearing process, how can the Commission expect an as-yet unaccepted intervenor, with no discovery rights, to be able to produce, in effect, its entire case in advance of its ability to obtain the production of those documents that may support its case? The answer is, it cannot.
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| 6
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| The problems with this and other proposed rule changes were recognized by NRC Commissioner Asselstine when they were presented for public comment in 1984, when he stated, in part (FEDERAL REGISTER, Vol. 49, No. 72, April 12, 1984, pages 14713 and 14714):
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| "These proposals, which were presented to the Commission in a November, 1981 draft report from the Chairman's Regulatory Reform Task Force (RRTR), reflect the most extreme view of licensing
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| 'reform' and, if adopted, would as a practical matter effectively eliminate public participation in the hearing process * * *
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| "Such proposals, and the process by which they were developed, do not provide a basis for Commission development of a set of reasonable and constructive changes to the hearing process --
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| changes which I believe are needed to improve the efficiency and effectiveness of the process and to enhance the opportunities for participation by all involved parties, including public intervenors, the utility applicants and the NRC staff.
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| "The following proposals being issued by the majority for comment are of particular concern: the proposal to establish a higher evidentiary threshold for the admission of contentions; * *
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| * the proposal to restrict opportunities for cross-examination "Each of these proposals suffers from significant legal, policy or administrative disadvantages that are not readily apparent from the discussion in the document being issued by the majority. For example, the proposals for the filing of detailed support for contentions prior to any opportunity for discovery, together with the added restrictions on late-filed contentions, would impose an unfair and robabl ille al burden on ublic intervenors."
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| Emphases added.)
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| Should the Commission approve this fundamental change, in the threshold needed for a concerned person/group to become an intervenor and to have contention(s) accepted, it would only serve to dismiss legitimate problems prematurely, and thus ensure that they may never be properly resolved. It can sweep problems under the rug; it cannot make them go away, nor can it ensure that a plant is licensable or that the public health and safety will be protected.
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| 7
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| Subpoenas (10 CFR 2.720) Discovery Against NRC Staff Item 3 According to current regulations, the NRC Staff is a party to an operating license proceeding, with rights and responsibilities like those of any other party, at least to a certain extent. But the Staff does have some rights that other parties do not have. (For example, the Staff cannot be dismissed as a party to the proceedings, or ordered to complete its review or studies by a certain time. Nor does the Staff have to respond to an Applicants' Motions for Summary Disposition - even though, in the Comanche
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| * Peak case, the Intervenor had to respond or risk losing important issues forever, with the possible or probable result that an operating license would be granted, in effect by default -- and even though, in the Comanche Peak case, the Staff has vitally important information and input which would support the Intervenors' position. Nor, in the Comanche Peak case, has the Staff had to respond substantively to the Intervenor's Motions for Summary Disposition jj_l.) Still, the NRC Staff has the statutory responsibility for protecting the health and safety of the public, while Intervenors are not so enjoined (although this is certainly one of CASE's primary concerns). Yet there is no mechanism to ensure that the Staff will fulfill its responsibility.
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| In any case, the Staff should at least continue to be bound by the rules which are currently in place, which are already restrictive enough for intervenors and already afford the Staff favored treatment in many regards.
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| The parties must continue to be able to ask the Staff (and to obtain
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| /4/ Nor have the Applicants in the Comanche Peak case had to respond substantively to the Intervenor's Motions for Summary Disposition.
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| 8
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| answers) regarding the bases for their testimony, conclusions, and position, as well as why they did or did not use a certain calculation or assumption or datum in the Staff's review or to reach its conclusions. This is an integral and necessary part of the process by which intelligent persons come to understand how a witness's or a party's answers came to be what they are, and (if appropriate) point out flaws in that process used to arrive at an answer jJ.j. It is also an essential ingredient in the process by which the Licensing Board will eventually arrive at its decision; indeed, without it,
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| * the Board's authority and responsibility would be usurped, in part, by the Staff's behind-closed-doors decisions, since the Board would not have all of the information necessary regarding the Staff's position to make an informed, reasoned decision based on a complete record.
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| il..f CASE notes that it believes that one reason problems at Comanche Peak and other plants are acknowledged by applicants and by NRC Staff only after sometimes years of grueling hearings is because the Staff has not kept a close enough eye on design, construction, and QA/QC through the years, or done enough studies, calculations, etc., independently of
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| * what it reviews onsite, or questioned the assumptions, input, or processes used by Applicants to arrive at their answers -- and because the NRC Staff does not look closely enough at a plant until the utility requests an operating license and legitimate and serious concerns are raised by intervenors.
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| In all fairness, CASE recognizes that part - but only part -- of the reason for this may be that the NRC Staff simply does not have a sufficient number of knowledgeable, technically competent individuals to do the job, and that this in turn may be partly because of insufficient funds to hire the quantity and quality of individuals needed. This should be changed, and the Staff's oversight should be increased and begun at the outset of construction.
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| It must also be noted, however, that another problem, in CASE's opinion, is the mindset of the Staff, which too often tends to want to automatically believe the applicants and disbelieve the intervenors or whistleblowers. It should also be recognized that, by the time a plant gets to the point where an operating license is requested, the Staff itself has a vested interest in the outcome, since anything adverse that it says at that time is, by its very nature, an indictment of the Staff's own oversight of the plant during the previous years.
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| 9
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| Evidence (10 CFR 2.743) Cross-Examination Plan -- Item 4 In the April 12, 1984, FEDERAL REGISTER, Vol. 49, No. 72, page 14714, Commissioner Asselstine stated:
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| "The proposal to restrict opportunities for cross-examination would impose an unfair burden on public participants and would represent an improper attempt to eliminate present legal requirements for trial-type adjudicatory hearings." (Emphases added.)
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| CASE firmly believes that the suggestion that parties to a hearing must be required to file cross-examination plans with the Board prior to a
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| * hearing is a blatant attempt to unjustifiably restrict the elicitation of information by the intervenor during the hearing process. (It should also be noted that the licensing boards already have the authority to do so should they deem it necessary.) The proposed process also has numerous drawbacks.
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| First, only intervenors lack unlimited (by comparison) access to ever-increasing legal and technical staffs and (by comparison) unlimited funds not only to prepare written testimony, fend off pre-hearing Motions for Summary Disposition of its accepted contentions, and now (if this proposal is adopted) to develop and produce such a proposed cross-examination plan.
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| To do so would take up proportionately more of an intervenor's time and money than it would for the NRC Staff or applicants. As such, it is unfairly biased against intervenors.
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| Second, the requiring of the development of such a plan unduly and unquestionably makes it much more difficult for an intervenor which is not represented by an attorney. It is already difficult enough for public 10
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| interest organizations such as CASE (which has often had to participate in the licensing proceedings without having an attorney) to force applicants and the NRG Staff to look at important issues, without the additional burden of such a requirement. The Licensing Boards already have the authority to control and restrict cross-examination should they believe it has become unfocussed or unproductive; this occasionally happened in the Comanche Peak proceedings but the vitally important information which has been brought out by CASE in those proceedings, even so, has helped significantly to
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| * assure that Comanche Peak is a much safer plant and, CASE believes, more than offset any inconvenience due to cross-examination by laypersons or experts.
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| Also, the requiring of the development of such a plan severely and unfairly limits the scope of cross-examination during the hearing. Should something come up during a hearing as the result of cross-examination (i.e.,
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| based on a witness's answer) which is unexpected and unplanned for, this rule change would not allow the cross-examining party or the Board to follow where the answer logically leads, no matter what the implications are for the future safe operation of the plant in question, thus disregarding the possible cost to the public's health and safety. In short, things come up during hearings that no one can plan in advance for - and to make a rule forbidding the consequences of that is simply unrealistic and unfair.
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| Further, it flies in the face of any semblance to established legal practice (such as is contained, for instance, in the Federal Rules of Evidence) and raises significant issues regarding due process rights.
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| 11
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| The Comanche Peak proceedings include issues which are highly technical, complex, and complicated. The information elicited by CASE's cross-examination of the witnesses of Applicants and their consultants, as well as the NRC Staff, was of vital importance to the development of a complete and accurate record on crucial safety-significant design issues.
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| Had this proposed rule been in effect during earlier Comanche Peak proceedings, the Licensing Board would have been deprived of much valuable and essential information, and would have had to base its decision on an
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| * incomplete and inaccurate record jj_/. Again, CASE must wonder if the actual reason for such a proposed rule change is to achieve the specific purpose of keeping intervenors such as CASE from being able to force damaging admissions from applicants, their consultants, and the NRC Staff --
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| admissions which are made, under oath, and are forever in the public record.
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| Whether this is indeed the actual reason, this proposed rule change would certainly help accomplish that end.
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| Another problem arises before the hearing even begins, for the proposed rule would give the presiding judge the authority, based merely on the written plan, to determine in advance of the hearing if a party will be afforded the opportunity of cross-examination on a particular issue or not.
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| First, this smacks of (indeed, almost requires) pre-judging an issue --
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| which a judge is not supposed to do - and of understanding the party's
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| /6/ See Footnote 2, pages 3 and 4. Testimony by the witnesses of Applicants and their consultant, Cygna, as well as of the NRC Staff, was instrumental, coupled with testimony by CASE's witnesses, in bringing out the severe design problems with pipe supports. Similarly, it was largely through the cross-examination of Cygna's witnesses, coupled with testimony by CASE's witness, that the issues regarding the severe design problems with cable tray supports were first brought to light.
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| 12
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| total scope of litigation (i.e., where this particular bit of information or issue fits into the overall litigation strategy). It also raises the issue of whether or not the NRC can legally -- or should require a party to an administrative hearing to produce its attorney work product either to all parties or even just to the Board in a hearing.
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| It is instructive to note when considering this proposed rule change that the judge (as mentioned before) already has the authority to cut off or to limit unproductive or unfocussed cross-examination during a hearing.
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| CASE believes that this should be left to the discretion of the judges who are actually there, who have the opportunity to see and hear the witnesses first-hand, to evaluate for themselves the credibility of the witnesses, and to evaluate the relevance and importance of cross-examination to the overall hearing process in the partic~lar case at bar. Thus, there is no reason to cut off cross-examination on any particular issue before the bearing even begins. Cross-examination may lead to extremely important, but unexpected, information which is essential to a complete record and to a reasoned, informed decision *
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| * Finally, it appears to CASE that requiring a cross-examination plan to be filed could also encourage a lack of full and prompt responses to discovery requests on the part of an applicant, since issues not fully responded to on discovery could not be covered adequately in a cross-examination plan, and therefore such issues could neither be pursued on cross-examination, nor appear later in findings of fact and conclusions of law. CASE opposes any rule change that might encourage any lack of production on discovery.
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| 13
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| Authority of Presiding Officer to Dispose of Certain Issues on the Pleadings (10 CFR 2.749) - Summary Disposition -- Item 5 Frankly, CASE is stunned and incensed by this proposed rule change which would allow for the filing of Motions for Summary Disposition at any time during a case even during a hearing itself! CASE firmly believes that this proposed rule change is deliberately intended to irreparably dam.age intervenors' cases (since intervenors are less likely to file Motions for Summary Disposition during such already-hectic times, and are more likely to be the ones who would have to answer them - although CASE in
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| * fact filed three almost two years ago which have still not been substantively answered by either Applicants or NRC Staff). This is clearly intended to allow applicants and/or the NRC Staff /7/ to derail an intervenor's litigation preparation at an applicant's or the Staff's convenience, thus ensuring that legitimate issues may be lost and not litigated -- not by legitimate responses or solutions, but merely by legal technicalities and lack of time to respond.
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| Instead of doing what the writer of this proposed rule change indicates
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| * (" * *
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| * to make it possible to terminate litigation at any point during the proceeding when it becomes apparent that a genuine issue of fact is no longer in dispute. " (emphasis added)), this proposal in fact does just the opposite: it ensures that genuine issues of fact which ARE in dispute will never make it to the hearing stage (or to the Findings of Fact stage, etc.). It will ensure that some -- perhaps many -- genuine J.2! For instance, early in the Comanche Peak proceedings, Applicants filed a Motion for Summary Disposition on one of CASE's contentions, and the Staff filed a supporting response; the Staff filed a Motion for Summary Disposition of another of CASE's contentions, and the Applicants filed a supporting response.
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| 14
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| construction foul-ups and genuine design flaws that will affect the proper operation of a nuclear power plant are never adequately examined, such that genuine monetary and health and safety consequences to the public may follow.
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| The current regulations already allow (and judges at times permit) motions for summary disposition to be filed at times very inconvenient and under time constraints very taxing to intervenors (i.e., right before a hearings, while a party is also trying to prepare its own witnesses' testimony, analyze the other parties' testimony and prepare in general for trial). That is already too much for intervenors to bear -- much less this p~oposal which is, in effect, a loaded. gun cocked to go off at any time.
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| The acceptance of this proposed rule would not only hamstring intervenors before, during, and after hearings~/, but it would prevent the Board and the Commission from hearing the full facts on the legitimate issues which were included under accepted contentions.
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| In addition, this particular proposed rule change would virtually assure chaos insofar as a licensing board's being able to conduct an orderly, efficient proceeding -- a responsibility which licensing boards currently have and which is difficult enough as it is for them to be able to fulfill at times (especially, as in the Comanche Peak proceedings, where
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| ~/ Under this proposed rule change, motions for summary disposition could also be filed at the same time (or in lieu of) responses to requests for information on discovery, giving the intervenor no time to assimilate whatever data is provided (or to counter data that is not given); motions could be filed during hearings, while working on proposed findings of fact and conclusions of law, etc. The mind boggles at the limitless possibilities for filing motions which could torpedo an intervenor's limited resources so that the issue could be dismissed without real-world problems being satisfactorily aired and resolved.
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| 15
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| detailed technical issues are involved). Were this proposed rule change, adopted, it would make their job in this regard totally impossible.
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| Finally, CASE is adamantly opposed to this rule change for another very specific reason - one which the Commission should seriously weigh in considering this proposed rule change. As anyone who has followed the Comanche Peak licensing proceedings is aware, CASE is a party to a proceeding where the Applicants filed and then subsequently withdrew some seventeen motions for summary disposition (after CASE had answered them,
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| * having spent many, many hours, and faced numerous deadlines in an effort to beat the NRC Staff in filing responses - deadlines which were, in effect, phony to begin with, since the Staff in fact never responded to most of the Motions at all; see CASE's 8/18/86 letter to the Licensing Board discussing this in some detail). These motions were, with few exceptions, regarding design issues -- serious and severe design issues. CASE answered each of the Motions for Summary Disposition as best we could under almost impossible conditions and time constraints. The fact that Applicants subsequently, in effect, repudiated their own Motions by withdrawing them, helped lead the Licensing Board to conclude that CASE had prevailed again (for the second time) on design issues.
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| CASE expects that all utility companies' who filed a response to these proposed rule changes will tell you that they agree with this proposed rule change. But it must be kept in mind that, at least in the Comanche Peak case, this is true only so long as it suits the utility's purposes. There is a need for a rule change here, most assuredly - but it should be that, 16
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| once a party has filed motions for summary disposition and another party has expended its resources in responding to such motions, the initiating party should not be allowed to merely withdraw their motions. Instead, they should be allowed to modify them - but with specific and detailed reasons required for each such modification.
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| It is also CASE's opinion, based on our specific experiences in the Comanche Peak proceedings, that summary disposition is not a good way to handle detailed technical issues such as the design issues under litigation
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| * in our proceedings. Regardless of the decision which would have ultimately been reached by the Licensing Board (assuming the Applicants had not withdrawn their Motions), it would only have proven - again - what everybody already knew: that there were indeed serious design issues which were in contention. Thus, little would have been gained by all the time and effort expended on the motions for summary disposition and their responses that could not have been achieved through the discovery process, requests for admissions, and stipulations
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| * It is important to note, however, that if this new proposed rule had been in effect and the timing of the motions had been different, it is quite possible that CASE simply would not have had time to do even what it did.
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| Thus, there is a possibility that Comanche Peak might already have been granted an operating license based on unanswered motions for summary disposition which were later found to be faulty and which have since, in effect, been repudiated by the Applicants themselves, as they embarked on their third "get well" ,plan for Comanche Peak. The acceptance of this rule 17
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| change would not have helped Comanche Peak correct its severe design and construction problems -- it merely might have allowed the Applicants to cover them up by "winning" by default with inaccurate and inadequate Motions for Summary Disposition. Again, CASE must ask the question: Is this the real intent of this proposed rule change?
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| Proposed Findings of Fact and Conclusions (10 CFR 2.754); and Appeals to the Commission from Initial Decisions (10 CFR 2.762)
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| Limitation - Items 6 and 7
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| * At least the writer of this proposed rule change is honest in that it says in black and white that this curtailment of rights is to be applied only to intervenors, since it would limit each intervenor to presenting findings of fact and conclusions of law to only those issues which itself placed into controversy in the proceeding. Thus Intervenor A cannot comment on Intervenor B's testimony; nor can Intervenor B comment on Intervenor A's testimony - nor can either comment on any issue raised by the NRC Staff in the proceeding *
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| * First, it should be noted that when the rights of only one party in a proceeding are limited, there is a denial of due process and the hearing process is in danger of becoming a kangaroo court, with prejudicial restrictions on the public's right to participate fully in the hearing as a full and equal partner in the process. The very fact that an intervenor has already gone through the necessary requirements of being admitted into the proceeding as an intervenor should be sufficient to dismiss any allegations of lack of discernible interest.
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| 18
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| CASE further takes issue with the paragraph in the proposed rule change which states:
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| "The proposed amendments are not applicable to license applicants or to NRC staff. License applicants have the burden of proof.
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| The NRC staff has an overall interest in the proceeding to ensure that public health and safety and environmental values are protected. Each has an obvious interest in filing proposed findings of fact and conclusions of law on most, if not all, contested issues and in taking appeals when they are adversely affected by the presiding officer's decision."
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| The writer of this portion of the proposed rule changes exhibits an extraordinary and total lack of understanding of intervenors and their interests and concerns (certainly this is true regarding CASE). Let's face it -- if CASE (and undoubtedly most other intervenors) had believed that either the utility or the NRC Staff was doing its job the way it should have been doing it, we would never have intervened in the proceedings to begin with. The-very fact that we have intervened, in effect, said that to the applicants, the NRC Staff, and to the world. We don't like having to do what we're doing, and we shouldn't have to be doing it. The fact is that CASE did not (and does not) believe that either the Applicants or the NRC
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| * Staff has fulfilled its obligation to ensure the public health and safety in regard to the Comanche Peak plant -
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| proceedings proves it.
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| and the record of the Comanche Peak And our "overall interest in the proceeding to ensure that public health and safety and environmental values are protected" and specifically as it applies to our members who live near Comanche Peak (some within about five miles), along with our concern that the public has a right to participate and to be kept informed about the important decisions being made about this plant, has led us to where we are today.
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| 19
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| And in the real world, although the burden of proof is supposed to be on the applicants, it is in fact often the intervenor on whom the burden of proof really falls. Further, input from the intervenors (which will often present different perspectives and arguments from what is presented by applicants and/or NRC Staff) in proposed findings of fact and conclusions of law is necessary and helpful for the Boards to make reasoned, informed decisions based upon a complete record.
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| This is directly relevan 4 to the Comanche Peak proceeding, since occasionally the NRC Staff or even the Applicants or their consultants have identified problems which were not specifically pointed out by whistleblowers or CASE's witnesses, although such matters are properly within the realm of CASE's admitted contention. Further, this proposed rule change, if adopted, would create still more confusion, dissention, and antagonism in NRC licensing proceedings due to the fact that (as was the case regarding the Staff's SSER Nos. 7 through 11) many times the NRC Staff has identified problems due to the intervenor's having brought whistleblowers to the NRC; this proposed rule would place intervenors and the NRC Staff in a very awkward and difficult position raising important legal, moral, and ethical questions such as whether or not an intervenor would have to identify (and the Staff confirm) such whistleblowers or lose the right to litigate the issues raised by them - a factor apparently unconsidered (or at least hopefully unconsidered) by the writer of this proposed rule.
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| Further, it is to be expected that CASE's interpretation of the meaning and/or proper disposition of such problems will be quite different from the 20
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| interpretation of Applicants or NRG Staff. Under the proposed rule, CASE could not prepare findings of fact or conclusions of law on those issues even though they are relevant to our admitted contention. And under the proposed rule regarding appeals, CASE's ability to appeal such issues would also be curtailed.
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| There is no rational explanation offered by the writer of this portion of the proposed rule change as to why the same due process rights should not be afforded intervenors as are afforded the applicants and NRG Staff
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| * either in regard to filing proposed findings of fact and conclusions of law or in regard to appeals. It appears that the writer has some serious misconceptions regarding intervenors, their motivations, and the important function they serve in NRG proceedings.
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| Summation and Conclusion In summary, CASE is firmly opposed to any of the proposed rule change to 10 CFR 2 discussed above. In fact, if each of these changes (or even any of them) were to be put into effect, we believe that the unjustified and unwarranted restriction of the rights of intervenors would result in the formation of what amounts to a kangaroo court, with prejudicial rules and predetermined verdicts based on the exercise of technical legalities to cover up real-world construction, inspection, and design flaws at nuclear plants across the country. The hearing process, which is already severely flawed, would be reduced to nothing more than a farce designed to lull the American public into thinking that the public health and safety is being protected when, in reality, it is not.
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| 21
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| CASE wonders why such draconian proposals that seek to curtail the rights of only one party - intervenors -- are even being considered seriously by the NRG. Did the Chernobyl accident teach the NRG only one thing - that the hearing process should more closely resemble the Soviet process, without intervention? To CASE, the message of Chernobyl should have been loud and clear: Instead of touting U. S. plants and trying to persuade the American public that such an accident can't happen here, the message should have been that we should be very, very careful to do everything possible to assure that U. s. plants are designed and constructed properly before they are given an operating license or allowed to go into operation. Intervenors have helped assure that the public health and safety is protected. This was pointed out by the NRC's own report commissioned to look into the Three Mile Island accident jJ_/ - but, contrary to what is being proposed in these rule changes, the Rogovin Report recommended increased public involvement in the decision-making process and even recommended intervenor funding for citizens or groups which "contribute materially to rulemaking or licensing efforts by pressing significant concerns that are not being urged by other parties."
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| /9/ NUREG/CR-1250, Vol. 1, Three Mile Island, A Report to the Commissioners and to the Public, by Nuclear Regulatory Commission Special Inquiry Group (the Rogovin Report), pages 143-144. The Report further states:
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| " * *
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| * intervenors have made an important impact on safety in some instances -- sometimes as a catalyst in the prehearing stage of proceedings, sometimes by forcing more thorough review of an issue or improved review procedures on a reluctant agency. More important, the promotion of effective citizen participation is a necessary goal of the regulatory system, appropriately demanded by the public * * * " (Emphases in the original.)
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| 22
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| Had these proposed rules been in place at the time CASE intervened in the Comanche Peak proceedings, one thing would have been accomplished: CASE would not have intervened and added credibility to a system which would have been (and if these proposed rule changes are enacted, will be) undeserving of any credibility. Again, we must ask: Is this sort of response from intervenors, in reality, the true purpose of these proposed rule changes?
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| If so, why doesn't the NRC just go ahead and plainly state that they don't want intervenors in licensing proceedings?
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| For the past seven years, CASE has been a party to a licensing proceeding in which the Applicants have had every legal advantage (they currently have four law firms working on the case) and every monetary advantage -- and yet they are now on their third partial reinspection/
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| redesign/reconstruction program (CASE having prevailed twice on design issues). This is not because of any superior legal manuevering by CASE in the licensing proceedings or because of delays brought about by CASE -- it is because there are numerous severe safety-related problems at Comanche Peak /10/ *
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| * /10/ On July 14, 1986, for instance, the Licensing Board was provided with a copy of Texas Utilities' 7/11/86 SEC Form 8-K which stated, in part:
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| "The Registrant [Texas Utilities Electric Company] has previously reported that modifications would be required on approximately thirty percent of the pipe supports in Unit 1 and that containment electrical penetrations would be replaced. It now appears that more corrective actions will be required than was anticipated at that time. In the course of the design reviews being performed at Comanche Peak, additional problems have recently been discovered in several areas of the design of the plant. Some of these discoveries will result in additional corrective actions which include reanalysis, revision or updating of existing design (continued on next page) 23
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| CASE suggests that a more fruitful and effective use of the NRC's time in regard to proposed rule changes would be to require utilities such as the owners of Comanche Peak -- once they have r~ached a certain threshhold -- to automatically go to a 100% reinspection of design, followed by a 100%
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| reinspection of construction. The time when this should have occurred at Comanche Peak was when the Applicants received the Licensing Board's 12/28/83 Memorandum and Order (Quality Assurance for Design) in which the Board suggested very specific steps which the Board made clear it
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| * would like for the Applicants to take, in order to assure the Board that I
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| Comanche Peak was designed such that the public health and safety would not be jeopardized. Had the utility done this -- or been required to do this at that time, the plant would probably have received an operating license by now and been on line.
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| Applicants chose instead to employ a "get well" Plan to attempt to resolve the Board's concerns; the Board, which could not prejudge whether or not the Applicants' Plan would accomplish that purpose, allowed Applicants to pursue that course. Applicants abandoned a major portion of their 1984 Plan when CASE responded to Applicants' 17 Motions for Summary Disposition when it became obvious that whereas before the Licensing Board had ruled (in
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| /10/ (continued from preceding page) calculations, reinspection, and in some cases, physical rework. These developments will further extend the time needed to perform corrective action and to obtain an operating license from the NRC and will increase the cost for this generating facility * *
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| * The reanalysis, reinspection and corrective action and the hearing process before the ASLB cannot be completed in time for commercial operation of Unit 1 for the Registrant's peak load in the summer of 1988 and the Registrant is, therefore, making other arrangements to obtain additional power supplies for such time." (Emphases added.)
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| 24
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| its 2/8/84 reconsideration order) that there was a deficiency of proof, CASE now had additional proof of deficiencies. It is becoming more obvious as time goes by that Applicants now have no intention of adequately investigating the root cause and generic implications of their past mistakes or of repudiating past practices -- or of allowing their consultants to do so /11/. CASE is now concerned that since the Applicants may be unable to adequately fix its plant (a position other applicants may also well find themselves in), by correcting construction and design flaws and errors in
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| * the real world, they will -- by the adoption of rule changes such as those being proposed -- be allowed to walk away from their problems by, in effect, "fixing" (i.e., by rigging) the system instead.
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| CASE hopes that the NRC will take its statutory responsibility to protect the public's health and safety seriously /12/, and will not allow a legal "fix" to substitute for the real thing. Rejecting all of these proposed rule changes would be a step in the right direction.
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| Respectfully submitted, CASE (Citizens Association for Sound Energy)
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| : s. )JuanitaEllis resident
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| /11 / See Applicants' 8/26/86 letter from Applicants' President to the President of Cygna (Applicants' consultant working on a major portion of Applicants' 1984 Plan), and the Licensing Board's 9/9/86 Memorandum and Order (Questions About Cygna's Continuing Role). See also Applicants' 10/6/86 Response to Board Memorandum of 8/8/86 (Assistance to the Board) at pages 6 et seq.
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| /12/ CASE notes that the comments of Commissioner Asselstine reflect a more accurate understanding of the real world -- and of real world solutions
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| -- than is reflected in these proposed rule changes.
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| 25
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| ::'1WJ)-:;PR ~
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| i ~ e ~mmo/uoea//£ (ffl&,?4o S o/~:kJac/4a.J.e//2 DOCKETE O USNRC
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| ~~n/ ~mm~//ee 0/t &iery/
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| !Jl!oon-t .5.fa Sfa/e YCtM6, !J?Jo.-J/t}/1, tJ..P/J>Y
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| '86 OCT 17 Pl2 :34 SENATOR NICHOLAS J . COSTELLO
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| ;c/f) 7~..P-..Pt?.9tJ REPRESENTATIVE LAWRENCE R . ALEXANDER SEN A TE CHAIRMAN 0FF1c~ u* 5i.. 1,1bus.5 1df1A1 RMAN October 16, 1986 OOC Kf f! NG ;, SU,'ViC (
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| BR AN~~H Secretary of the Commission US Nuclear Regulatory Commission Washin g ton, DC 20555 Attention: Docketing and Service Branch
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| ==Dear Mr. Secretary:==
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| We strongly urge the Commission not to adopt any of the rule changes officially proposed on July 3, 1986 concerning the reactor licensing process.
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| We are shocked that the proposed rule to "improve" the reactor licensing process would most likely have the effect of completely eliminating meaningful public participation in licensing proceedings.
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| If the Commission is seriously interested in streamlining the licensing process without blocking a full and fair hearing on legitimate health and safety issues, the proposals of Commissioner James Asselstine should be issued for full public comment.
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| The proposed rule would make it virtually impossible for any issue to be accepted by the licensing board for resolution in the hearing process.
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| Under current regulations, a person must describe the issues to be contested with reasonable specificity to provide adequate notice to the other parties .
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| The proposed rule would go far beyond this and require that each contention be supported by facts, e x pert opinions and the specific sources and documents which will be used to prove the case. In other words, an intervenor would be required to prove each contention before having the benefit of any discovery or cross-e x amination during the hearing process! Not only would this violate all principles of due process, but it arguably would destroy the right of interested persons to a hearing on legitimate issues, a right which was granted by Congress in Section 189a of the Atomic Energy Act .
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| The second proposed change would restrict the discretion of the NRC's own hearing judge to determine whether there is an adequate basis for the NRC staff position. The new rule would prevent the hearing judge from requiring the NRC staff to perform additional research or analysis to justify the staff's positions on an issue or to e x plain why alternative data assumptions or anal y ses were n ot relied upon. Intervenors often have very restricted access to technical information and nuclear reactor e x perts; therefore, the y frequent l y must rel y on NRC data and e x perts to buttress their case for most technical issues.
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| This proposal would block the full disclosure of the facts, preventing a full and fair airing of technical issues.
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| U. $ . N UCLE,\R REGULATORY COMM ISSION DOCKETING & SERVICE BR,\NCH OFFICE OF THE SECRETARY, OF THE COMMISSION Document St.iti::;:
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| Po ~mark Dato /tJ[{ G Cgp1es Rece1 j _ _ _ ___,',,,----- - - - - I A!,Jd I G pi Roptoduccd _ _,___ _ _ _ _
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| !;;1Jec1a1 Q1!.H1bulu:m
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| ==---- ~--------*--
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| The third proposal would seriously restrict intervenors' rights to cross-examine utility officials or the NRC staff. Intervenors would be required to obtain permission from the hearing judge to cross-examine; they would be required first to submit a "cross-examination plan" that would have to include a description of the issues to be reviewed, the objective to be achieved by cross-examination, the proposed line of questions, plus "postulated answers" to the questions that are "reasonably anticipated"!
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| Intervenors with scarce resources have relied upon relevant cross-examination to expose major weaknesses in utility or NRC staff positions. Under the proposed rule, intervenors would be required to submit the entire line of questions and answers at least 15 days before even being allowed to ask them. Why should cross-examination be limited only to questions to which intervenors already know the answers? In addition, relevant new questions often arise from an original line of relevant questions. Requiring all cross-examination questions and answers to be developed first would prevent any follow-up on relevant lines of inquiry and prevent a full hearing on legitimate issues in controversy .
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| * The fourth proposed diminution of intervenors' rights would permit parties to file motions and affidavits for summary disposition of issues at any time, including just prior to the hearing.
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| would be deleted from Section 2.749:
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| Currently, such motions may only be filed at such time as is determined appropriate by the presiding officer. One sentence "The board may dismiss summarily motions filed shortly before the hearing commences or during the hearing if the other parties or the board would be required to divert substantial resources from the hearing in order to respond adequately to the motion." The Commission now proposes to allow the harassment of intervenors by permitting motions to dismiss during or just prior to hearings, which would require intervenors to divert substantial resources from their hearing preparation. Why should the discretion of the presiding officer on the timeliness of motions be removed from such important decisions affecting the conduct of the proceedings, at the sole expense of the intervenors?
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| The fifth proposed amendment to the rules would prevent intervenors with
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| * a clear interest in a contention filed by another party from submitting proposed findings of fact and conclusions of law on that issue or from appealing that issue. The high cost of effective representation on the complex technical issues in licensing proceedings often forces some intervenors with obvious interests in certain contentions to stop pursuing some or all of their legitimate contentions at some stage of the process. Presently, other interested parties can pick up where their fellow intervenors left off. The new rule would simply block further consideration of these matters regardless of how serious or how meritorious the issues.
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| Viewing the proposed rules changes in total, a clear theme emerges: intervenor participation would be greatly restricted, regardless of the merits of the issues the intervenors were raising. In addition, hearing officers' discretion would be sharply limited.
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| Although the Commission suggests that these proposed rules would streamline and improve the licensing process, the top NRC licensing official disagrees.
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| B. Paul Cotter, Jr., the Chairman of the NRC's Atomic Safety and Licensing Board Panel, has criticized these proposals as "counter-productive." Instead of focusing on the substantive merits of issues in contention, parties would spend many hours litigating whether a proposed cross-examination plan contains
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| "postulated answers" that are "reasonably anticipated."
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| Active public participation by the American citizenry has forced a higher standard of safety in American nuclear power plants than in Soviet plants.
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| The NRC seems to be ignoring this important lesson from Chernobyl. The NRC also seems to be overlooking an important lesson from the Three Mile Island accident. The NRC's own Special Inquiry Group which probed that accident as well as the general regulation of nuclear power concluded that public intervenors in licensing proceedings have made significant contributions to enhancing the safety of nuclear reactor operations:
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| "Intervenors have made an important impact on safety in some instances--
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| sometimes as a catalyst in the prehearing stage of proceedings, sometimes by forcing more thorough review of an issue or improved review procedures on a reluctant agency." (emphasis in original)
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| This NRC Task Force came to this conclusion even as it also concluded that the present licensing process contains serious obstacles which inhibit effective public participation:
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| " Insofar as the licensing process is supposed to provide a publicly a ccessible forum for the resolution of all safety issues relevant to the construction and operation of a nuclear plant, it is a sham."
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| The Special Inquiry Group concluded that ''the promotion of effective citizen participation is a necessary goal of the regulatory system, appropriately demanded by the public." (emphasis in original) It recommended the establishment of an Office of Public Counsel that would provide legal and technical assistance to intervenors. In addition, the NRC Task Force recommended that funding be provi d ed to intervenors who could "contribute materially to rulemaking or licensing efforts by pressing significant concerns that are not being urged by other parties."
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| Si x years later, neither of these recommendations has been implemented by the Commission. Instead of promoting "effective citizen participation",
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| the Commission now proposes to further restrict the ability of public intervenors to present important and relevant issues involving the health and safety of the public in licensing proceedings.
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| I f the Commission is seriously interested in "improving" the licensing process, these proposed rule changes should all be rejected and the proposals of Commissioner Asselstine published in the July 3, 1986, Federal Register should be issued for public comment.
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| Thank you for giving our comments you most serious attention.
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| Best wishes.
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| NICHOLAS J. COSTELLO LAWRENCE R. ALEXANDER Senate Chairman House Chairman NJC/LRA/kam
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| .86 OCT 16 Pl2 :41 October 13, 1986 1263 Green Se ffWf nF ~,
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| San Franciscg cf~ T1Ni~.}~6t *,r:r.
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| BR ANC!-!
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| Sec r etary of the Commission U . S. Nuclear Regulatory Commission Washington D.C. 20555 ATTENTION: Docketing and Service Branch Gentlemen:
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| Attached please find a draft copy of a Comment which will be soon appearing in the University of San Francisco School of Law's Law Review. The Comment addresses the NRG procedural regulations regarding intervention into the licensing hearing and submittal of allegations. A solution to reduce the likelihood of submittal of n on-meritorious allegations is proposed . The Comment is submitted in response to your proposed rule published in the Fede ral Register on July 3, 1986.
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| If you have any questions feel free to contact at home (415-673-4866) or at the office (415-972-2677) .
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| Richard A . Manso OCT 18 AcknO,YJedged by card* If I I i I ~ Ii iii iii JW I C~iiil
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| , ~ RfGU ATnPY r<1M '
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| ~ TING & <;FD r*
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| * O F ICE OF T' OF TL' r * : Jn
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| I. INTRODUCTION Congress declared the need to develop, use and control nuclear energy in the Atomic Energy Act of 1954 (the Act). 1 The Act established a regulatory scheme requiring a utility company (utility) to obtain a license prior to operating a nuclear power plant. 2 Any person whose interest may be affected by the license may intervene the licensing proceeding by filing a petition3 and submitting allegations. 4 The license cannot be issued until the presiding h~aring officer renders a favorable decision. 5 With the ratemaking methodology required by many public utilities
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| /
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| commissions, 6 any pre-operational delays, especially during the latter stages of construction or licensing, result in significant increases in the power plant's overall costs.7 However, even with an accounting system which would
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| - enable the utility to recoup costs when incurred, pre-operational delays still result in cost increases. This can be attributed to the direct costs incurred to obtain replacement electricity and to remove the causes of the delay. 8 The proceedings for nuclear power plants licensed since 1980 have been steadily taking more time. 9 A factor in this trend has been the increased presence of intervenors. 10 I
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| Since all allegations must be resolved before a license can be issued11 , non-meritorious allegations result in unnecessary delays. While having a minimal impact on the safe operation of the plants, these unnecessary delays have a definite impact on the costs to provide electricity to the ratepayers served by.the utility.12 The current debate centers on whether the ratepayers or the utility's shareholders should absorb these unnecessary costs. 13 Regardless of the outcome, a significant segment of the population wi~l ultimately bear these
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| costs.1 4 Reform is necessary to ensure that similar abuses do not occur during the licensing of the next generation of nuclear power plants. 15 This comment will summarize the regulations which establish the framework of the licensing proceeding and the right to intervene. Specific examples of non-meritorious allegations which have caused unnecessary delays will be presented. 16 The avenues of recourse currently available to a utility will be identified and the inadequacies of such avenues will be discussed. A solution intended to deter the introduction of non-meritorious allegations will be proposed.
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| The proposed solution imposes a duty of responsibility on intervenors similar to the duty under Rule 11 of the Federal Rules of Civil Procedure.
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| When this duty is not met, the solution provides sanctions similar to those in other federal administrative agency proceedings. The solution does not alter the standing requirements established for intervention, so as to ensure representation of all affected interests in the licensing proceedings. This comment provides a modification to the pertinent procedural rules which incoporates this solution.
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| II. BACKGROUND A. Regulatory Framework of the Licensing Proceeding In the Atomic Energy Act of 1954, Congress declared a policy favoring the development, use and control of nuclear energy to* improve the *country's general welfare. 17 To effectuate this policy, a program for governmental control of nuclear energy was established. 18 A significant aspect of this program included the establishment of the Atomic Energy Commission (AEC) 19 with responsibilities including research, 20 licensing 21 and regulation 22 of the nuclear power industry. Congress subsequently abolished the AEC in 1974, 23 transferring all of its licensing and regulatory functions to the Nuclear Regulatory Commission (NRC). 24 The NRG has since established procedural and substantive rules for the licensing of nuclear power plants. 25 The procedural rules established by the NRG require a utility to acquire a construction permit prior to the commencement of any significant construction activities 26 The application for a construction permit must include certain general information27 and a Preliminary Safety Analysis Report (PSAR). 28 A licensing hearing on the application is required to be held. 29 The Atomic Safety and Licensing Board (ASLB) 3 0 conducts the licensing hearings and issues a decision. 31 An ASLB decision may be appealed to the Atomic Safety and Licensing Appeals Board (Appeals Board). 32 The Appeals Board reviews the record and the ASLB decision and issues its own decision, giving the affected parties a further opportunity to be heard. 33 The Appeals Board decision may in turn be appealed to the NRG Commissioners (Commission). 34 Upon determining that the application meets the pertinent standards, the Commission issues a construction permit. 3 5 The procedural rules then require a utility to acquire an operating license prior to commercial operation of the plant. 36 About the time construction is completed, the utility must file additional information to update the construction permit application. 37 This information includes a physical*
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| security plan38 and the Final Safety Analysis Report (FSAR). 39 A process similar to that used for review of the construction permit application is employed for review of the operating license application. 40 Absent any good cause to the contrary, the NRG will issue an operating license if it finds that the plant was constructed and will operate as required 41 The issuance of the operating license is subject to judicial review. 42 B. The Right to Intervene Any person whose interest may be affected by either a construction permit or operating license proceeding and who desires to participate as a party in a proceeding may file a petition for leave to intervene. 43 The presiding hearing officer rules on the petition to intervene based on consideration of (1) the nature of the petitioner's right to be made a party; (2) the nature and extent of the petitioner's interest in the proceeding; and (3) the possible effect an order which may be entered in the proceeding would have on the petitioner's interest in ruling on the petition to intervene. 44 These factors establish the standing requirements for intervention of licensing proceedings.
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| The petitioner must also file a supplement to the petition to intervene. 45 This supplement must include a list of the allegations which the petitioner seeks to have litigated in the proceeding and the basis for each allegation, set forth with reasonable specificity. 46 However, once admitted as an intervenor, the petitioner has all the rights of the utility to participate fully in the conduct of the hearing, including examination and cross-examination of witnesses. 47 The result is that an intervenor may submit allegations at various times during a licensing proceeding.
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| G. Diablo Canyon Nuclear Power Plant A licensing hearing which has been the subject of numerous allegations from intervenors involves Pacific Gas and Electric Company's (PGandE) Diablo Canyon Nuclear Power Plant (Diablo Canyon), Units 1 and 2 . PGandE applied for a construction permit for Diablo Canyon Unit 1 in January of 1967. 48 After two days of public hearings in February of 1968, 49 the construction permit was issued the following April.SO PGandE applied for a construction permit for Diablo Canyon Unit 2 in June of 1968. 51 After three days of contested hearings, commencing in December of 1969 and conducted over an eight month period, 52 a construction permit for Unit 2 was issued in December of 1970. 53 The AEC acknowledged receipt of PGandE's application for operating licenses for both Unit 1 and Unit 2 on October 10, 1973. 54 A full power operating license for Unit 1 was issued by the Commission in August of 1984. 55 The license was stayed when an intervenor was successful in an appeal to the United State Court of Appeals. 56 The court lifted its stay in November of 1985. 57 After start-up tests, Diablo Canyon Unit 1 became operational on May
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| - 7, 1985. 58 A full power operating license for Unit 2 was authorized in 1985. 59 Diablo Canyon Unit 2 became operational on March 13, 1986. 6 0 D. The Intervention Movement at Diablo Canyon The intervenors in the Diablo Canyon licensing proceedings initially consisted of individuals and organizations who were from the surrounding community. 61 The names of some of the organizations suggested their grass roots character: Scenic Shoreline Preservation Conference, 62 San Luis Obispo Mothers for ~eace 63 and the Ecology Action Club of California State Polytechnic University - San Luis Obispo. 64 As the licensing proceedings progressed, the intervenors retained legal counse1 65 as well as expert witnesses 66 from outside their community. This marked the maturation of the intervention movement from a loosely-knit group of concerned neighbors to a organization of concerned neighbors supported by outside legal and technical experts.
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| Early in 1983, the NRG started to.receive a large number of allegations regarding Diablo Canyon. 67 Although some of the intervenors remained anonymous, the majority of the allegations were submitted by a small number of publicly identified intervenors. 68 An organization responsible for numerous allegations was Government Accountability Project (GAP), 69 based~in the District of Columbia,70 which was organized to protect the public from government abuse by legally defending employees who expose such practices. 71 In addition to the Diablo Canyon proceedings, GAP has also appeared in the licensing proceedings for Louisiana Power & Light's Waterford Steam Electric Station, Unit 3, 72 Texas Utilities Generating Company's Commanche Peak Steam Electric Station, 73 Union Electric Company's Callaway Plant,7 4 Cincinnati Gas & Electric's William. H.
| |
| Zimmer Nuclear Power Plant, 75 Duke Power Company's Catawba Nuclear Power
| |
| - Plant, 76 and Consumers Power Company's Midland Plant. 77 With the introduction of GAP, the intervention movement was no longer dominated by neighbors of the plant, i.e. those who would logically have an interest which would be impacted by the operation of the plant. Instead, a national organization generally opposed to nuclear power, regardless of a plant's safety and the needs of the community surrounding the plant, was using the licensing proceeding as a forum to halt nuclear power.
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| III. PROBLEM: NON-MERITORIOUS ALLEGATIONS There are two hurdles which a party_must overcpme befo_re a utility i_s required to respond to the party's allegations. To be admitted to the proceeding as an intervenor, a party must possess an interest which may be affected by the licensing proceeding. 78 This relatively broad standing requirement promotes utility and nuclear industry responsibility in the design, construction and operation of nuclear power plants. T9 limit the parties which may intervene may have an unnecessary and undesireable chilling effect on the I
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| identification and resolution of design, construction or operational errors.
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| For this reason the standing requirement is not under scrutiny in this comment.
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| The second hurdle requires the party to file allegations with a basis for each, set forth with reasonable specificity.7 9 PGandE's experience with Diablo Canyon indicates the ability of intervenors to introduce non-meritorious allegations into the licensing proceeding, notwithstanding this second hurdle.
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| Both the NRc 8 0 and PGandE 81 have devoted extensive resources to address the allegations of intervenors in the Diablo Canyon licensing proceedings. The NRG initially received allegations regarding the design, construction and operation of Diablo Canyon and the management of these activities by PGandE in early 1982. 82 As the flow of allegations increased, a special Diablo Canyon Allegation Management Program was established to pursue the allegations and concerns to resolution. 83 On October 28, 1983, the Commission directed the NRG staff to review all allegations and concerns and requested a status report prior to rendering its decision regarding the low power license. 84 By early March of 1984, the NRG staff had addressed 219 of the approximately 400 allegations which had been received. 85 In mid-March, scores of new allegations were filed, including several filed by GAP which were received by the NRG only hours before the scheduled meeting on reinstating the low-power license. 86 By July of 1984, allegations regarding Diablo Canyon numbered 1,400 87 and by March 1, 1985 a total of over 1,600 allegations had been received.88 All of these allegations were reviewed and none were found to warrant a delay in the licensing of Diablo Canyon. 89 Over 400 allegations were found to be duplicates or small variations of other allegations. 90 Although numerous allegations were not duplicative, the resolution of all of these allegations required less than ten physical changes to the plant. 91 The NRG staff concluded that none of the allegations, either individually or collectively, indicated problems that would be detrimental to the plant's safety so as to preclude operation.92 As Diablo Canyon was prohibited from operating at full power until final resolution of all of the allegations, 93 these allegations significantly delayed the operational date of Diablo Canyon with little, if any, increase in the level of protection afforded public safety. An attorney for GAP, the organization which presented a large number of these allegations under the cover of improving the plant's safety margin, observed that the efforts of the NRG and PGandE in responding and resolving such allegations had no impact on the plant's safety margin. 94 The Commission recognized the generic nature of the non-meritorious allegation problem in March of 1985. 95 The Commission expressed concern with the* need to address large numbers of allegations brought to their staff's attention very shortly before and, in some cases, on the eve of a licensing decision date. 96 The Commission observed that significant resources were necessary to address these las~ minute allegations and many were proven -
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| non-meritorious or of little, if any, significance. 97 However, after recognizing the problem, the Commission stated that non-meritorious allegations would merely receive no further consideration. 98 Although the Commission stated that federal law imposes penalties upon any person who intentionally makes any false statement or representation to any agency of the United States,9 9 a review of these penalties reveals their inadequacies.
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| IV. CURRENTLY AVAIIABLE AVENUES OF RECOURSE AND THEIR INADEQUACIES A. Common Law: Cause of Action for Abuse of Process At common law, a cause of action for abuse of process is available to a party which has been the subject of malicious misuse or misapplication of a legal process_lOO The essential elements of the tort are an ulterior motive and a willful act in the use of the process not proper in the regular conduct of the proceedings. 101 The abuse need not occur in one claim, but may result from a "pattern of baseless, repetitive claims ... which lead the factfinder to conclude that the administrative and judicial processes have been abused. ,.l0 2 One who abuses a legal process is liable for the pecuniary loss suffered by the other party 1 0 3 and, if conditions warrant, punitive damages. 104 The inadequacy of an abuse of process cause of action as an avenue of recourse for a utility which has been the subject of non-meritorious allegations can be attributed to the required burden of proof. The utility must prove the intervenor had an ulterior motive and acted willfuly in submitting non-meritorious allegations. The person introducing non-meritorious allegations may not intend to delay the licensing proceeding, but may merely be unreasonably evaluating the basis of an allegation or forming an unreasonable belief that the allegation is true or has not been previously litigated. The impact on the licensing hearing is the same and therefore an abuse of process cause of action does not provide an adequate level of protection. Even if the party possesses the necessary intent, the difficulty in meeting this burden and the time and money which may be wasted in pursuing a cause of action with such a high burden may be enough to convince a utility that its time is better spent responding to the allegations upon their receipt.
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| B. Administrative Remedy: Title 10 of the Code of Federal Regulations Title 10 of the Code of Federal Regulations addresses the burden of proof problem in an abuse of process cause of action by providing its own procedural safeguards to protect a utility from abusive practices. Each original document filed with the NRC must be signed by the filing party, its authorized representative or attorney.lOS The signature indicates that the person has read the document, knows its contents and asserts that, to the best of his/her knowledge, the statements made are true and the document was not interposed for delay. 106 If the document is signed with intent to defeat the purpose of these requirements, the document may be stricken. 107 The inadequacy of these regulations can be attributed to the subjective test of knowledge which must be met in order to defeat a motion to strike. The person who introduces a document has no duty to investigate or evaluate the basis of an allegation contained in such document. As previously discussed, the individual need not meet any minimal knowledge level in order to obtain standing to intervene. The result is that a individual may unintentionally introduce non-meritorious allegations which would not be .introduced after a reasonable investigation.
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| Of course there still remains the individual who intentionally introduces non-meritorious allegations in order to delay the licensing proceeding. The meager penalty of having the non-meritorious allegation stricken from the proceeding is not enough to deter such individuals. Additionally, the utility may be relµctant to bring a motion to strike as the probability of success factored with this meager result does not justify the additional resources, time and money necessary to present such a motion.
| |
| Title 10 attempts to respond to this problem by enabling the presiding hearing officer to suspend a party from a proceeding if necessary for the orderly conduct of the proceeding.lOS If the suspension is for more than a day, however, the proceeding may be stayed for a reasonable time in order to afford the affected party an opportunity to obtain representation. 109 The intent of suspending the party for introduction of non-meritorious allegations which cause unnecessary delays is to punish the party for delaying the proceeding. But in so punishing the party, Title 10 may further delay the proceeding by providing such a party an opportunity to stay the proceeding.
| |
| The party intending to delay the proceeding achieves hisjher goal whether the allegations are admitted to the proceeding or the party is suspended from the proceeding. This is a no-lose situafion for the intervenor committed to delaying the proceeding and a no-win situation for the utility faced with non-meritorious allegations from such an intervenor.
| |
| V. RECOMMENDED SOLUTION The existing judicial and administrative remedies do not provide a reasonable avenue of recourse for a utility which has suffered delays resulting from non-meritorious allegations. A modification to the existing NRG procedural regulations for the issuance of a license might alleviate this r
| |
| | |
| problem. However, certain guidelines should be observed in formulating this modification. The modification should not affect the standing requirements, as it is desirable to have all affected interests adequately represented in the licensing proceeding. Instead, the modification should impose a duty of responsibility on the intervenor for actions in the licensing proceeding and the financial impact of such actions on the general public. A practical and equitable modification should deter intervenors from abusing their intervention rights and provide an effective mechanism for a utility to request restitution and punitive damages when this deterence fails. While achieving these goals, the modification should maintain the public's ability to actively participate in the licensing process. This author recommends a two prong modification to the current NRG procedural regulations: (1) an express statutory duty to reasonably investigate the basis of any allegation and to reasonably develop a belief as to its truth and non-delaying purpose and (2) definite and enforceable sanctions for violations of such duties.
| |
| Rule 11 of the Federal Rules of Civil Procedure (Rule 11) provides some guidance for both of these prongs. With respect to the first prong, Rule 11 requires every document submitted by a party to be signed either by the attorney representing the party or, if unrepresented, by the party. 110 The t
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| signature certifies that (1) the signatory has read the document, (2) that to the best of the signatory's knowledge, the document has some basis and (3) that the document was not interposed to cause unnecessary delay. 111 These requirements are similar to the current procedural regulations established by the NRG in Title 10, as discussed previously.
| |
| \
| |
| However, Rule 11 goes further than the NRG procedural rules by requiring a reasonable inquiry by the signatory or appointed representative and a certification that the document is well grounded in fact and warranted by existing law or a good faith argument for modification of the existing law. 112 Rule 11 is violated where after reasonable inquiry a party could not form a reasonable belief that the subject document was well grounded in fact and was warranted by existing law or a good faith argument to the extension, modification or reversal of existing law. 113 Inclusion of this aspect of Rule
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| (
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| 11 imposes an objective test for the evaluation of a document, as oppossed to the subjective test which is an inadequacy of the currently available remedial measures of the Title 10.
| |
| With respect to the second prong, Rule 11 enables a party to file a motion requesting sanctions against a party whose document was signed in violation of these requirements, an option not presently available to a utility in a licensing proceeding. 114 The sanctions may include an order to pay reasonable expenses incurred because of the document, including a reasonable attorney's fee. 115 The sanction may be imposed against the person who signed the document, the represented party, or both. 116 These sanctions are intended to discourage dilatory or abusive tactics and to help streamline the process by lessening frivolous claims, 117 exactly the problem encountered by a utility when a party introduces non-meritorious allegations. Incorporation of similar sanctions into the NRG procedural regulations, coupled with the removal of the intervenor's ability to stay the proceeding in the event of suspension from the proceeding, will resolve the no-win situation which currently exists for the utility when an intervenor has violated the duties described above.
| |
| Other federal agencies regulating the energy industry have definitive sanctions for abuses of their administrative proceedings. For any practice that circumvents or contravenes the requirements of the Department of Energy's regulations, a,person may be subject to civil penalties. 118 Additionally, any willful violation may expose the perpetrator to criminal penalties. 119 The Federal Energy Regulatory Commission has the ability to disqualify and deny, temporarily or permanently, the privilege of appearing before it in any way if a person has engaged in improper conduct.1 2 0 To effectuate the modification recommended above, I suggest that the parts of Title 10 of the Code of Federal Regulations be revised as detailed below:
| |
| Part 2.708(c): So as to impose a duty of investigation, revise the text of this part to read as follows:
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| The original of each document of a party represented by an attorney shall be signed by at least one attorney of record. A party which is not represented by an attorney shall sign the document. The capacity of the person signing, their address and the date shall be stated on each document. The signature of an attorney or party constitutes a declaration that the document has been subscribed in the capacity specified with full authority and that the signatory has read the document and is aware of the contents. Further_, the signature constitµtes a declaration _that the party has a reasonable belief, formed after a reasonable inquiry, that ,the statements made are true and have not been previously litigated in the particular proceeding and that the document is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of obtaining a license. If a document is not signed or is signed in violation of this section, the attorney or the party, if not represented by an attorney, or both, shall be subject to the sanctions provided in 2.713(c).
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| Part 2.713(c): So as to impose definite and enforceable sanctions for violation of the duties described in the revised Part 2.708(c), revise the title of this part to "Sanctions" and revise paragraphs (1) and (2) of the text of such part to read as follows:
| |
| (1) A presiding officer, an Atomic Safety and Licensing Appeal
| |
| - Board, or the Commission may, if necessary for the orderly conduct of a proceeding, upon motion or upon its own initiative, impose an appropriate sanction on any party or representative of a party who shall not comply with the procedural requirements provided in Part 2 of Title 10 of the Code of Federal Regulations, or who shall refuse to comply with its directions or who shall be guilty of disorderly, disruptive or contemptuous conduct. An appropriate sanction may include a reprimand, censure or suspension from participation in the particular proceeding pending and/or an order to pay to the other party or parties the amount of direct and consequential damages suffered as a result of such non-compliance or conduct. For willful violations of the procedural requirements provided in Part 2 of Title 10 of the Code of Federal Regulations, a pafty shall be subject to an order to pay the other party or parties punitive damages suffered as a result of such violations and/or criminal penalties for each such violation, which may include imprisonment for not more than 30 clays or a fine not mor~ than $10,000.
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| (2) A reprimand, a censure or a suspension which is ordered to run one day or less shall be ordered with grounds stated on the record of the proceeding and shall advise the person disciplined of the right to appeal pursuant to paragraph (c)(3) of this section. A suspension which is ordered for a longer period shall be in writing, shall state the grounds on which it is based, and shall advise the person suspended of the right to appeal and to request a stay of such a suspension pursuant to paragraphs (c)(3) and(c)(4) of this section.
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| VI. CONCLUSION Because the general public will ultimately bear the costs of constructing, operating and licensing new power plants, measures should be taken to eliminate needless costs. Elimination of abuses in the ;nterventi~n proce~s pre~ents an excellent opportunity to take such measures. The licensing history of Diablo Canyon .amply demonstrates these abuses and the need for reform in the procedural rules of licensing new nuclear power plants. Reform is necessary to ensure similar abuses are not repeated in future licensing proceedings. An effective reform measure would be the imposition of an duty to investigate coupled with appropriate sanctions in the event of failure to meet this duty.
| |
| The proposed modification of the NRC's procedural rules would alleviate the abuses currently taking place in the licensing process* of nuclear power plants.
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| The filing of non-meritorious and duplicative allegations are delay tactics which abuse the licensing process. These abuses have succeeded in delaying the operation of nuclear power plants and increasing plant costs without a commensurate increase in the protection afforded to the public. The right to intervene exists to protect interests which may be affected by the operation of the plant and to ensure its safe operation. The licensing proceeding is not intended as a forum to debate the pros and cons of nuclear power. This debate is best left to the political process and the ballot box.
| |
| I RICHARD A. MANSO Class of 1987 FOOTNOTES
| |
| : 1. The Atomic Energy Act of 1954, Pub. L. No. 703, ss 1, 68 Stat. 919, 921 (1954) (codified at 42 U.S.C. sss 2011-2296).
| |
| : 2. 42 u.s.c. ss 2131 (1982).
| |
| : 3. Id at ss 2239 (a) (1).
| |
| : 4. 10 C.F.R. ss 2.714 (b) (1985).
| |
| : 5. 10 C.F.R. ss 2.760 (a) (1985).
| |
| : 6. The ratemaking methodology required by most public utilities commissions is allowance for funds used during construction (AFUDC). Starr and Braun, U.S. Nuclear Power Performance, Energy Policy, Sept. 1984, at 257.
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| This methodology requires a utility to await commercial operation of a plant before the ratepayers commence payments of the plant's costs.
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| Construction Work in Progress for Public Utilities; Inclusion of Costs in r
| |
| Rate Base, 48 Fed. Reg. 24323, 24324 (1983) (Supplementary Information provided with the final rule to be codified at 18 C.F.R. ss 35.26). The total costs of a new power plant includes the direct cost of land, labor and construction materials plus the cost of financing the project. Id.
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| Finance charges continue to accrue during the pre-operational period.
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| Id. Therefore, although the direct costs may increase slightly during a delay, the significant costs increases are associated with the finance charges which continue to be applied to the plant's total cost.
| |
| : 7. Pacific Gas and Electric Company ~PGandE) estimated their costs to be $16 .
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| million per week due to post-construction, pre-operational delays at their Diablo Canyon Nuclear Power Plant, Unit No. 1 (Diablo Canyon).
| |
| Wall St. J., Aug. 24, 1984, at 33, col. 4. Texas Utilities Generating FOOTNOTES Company (TUGCO) estimated their costs to be $30 million per month to keep their completed Commanche Peak Steam Electric Station (Commanche Peak) out of operation due to licensing delays. 214 Engineering News Rec.,
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| Jan. 31, 1985, No. 5, at 15. Cincinnati Gas and Electric Company (CG&E) estimated their costs to be $15 million for each month of delay it experienced on their Wm. H. Zimmer Nuclear Power Plant. The Bureau of National Affairs, Inc., Energy Report, Vol. 10, No. 46, Pg. 1147, November 18, 1982.
| |
| : 8. (Later)
| |
| : 9. Starr and Braun, U.S. Nuclear Power Performance, Energy Policy, Sept.
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| 1984, at 256.
| |
| : 10. Id.
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| - 11. (Later).
| |
| : 12. (Later) .
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| : 13. Cf, Whom to Soak When Utilities Take a Bath?, Wall St. J., Oct. 9, 1984 at 30, col. 2; Asinof, Rate Shock, Environmental Action, January/February 1985, at 12.
| |
| : 14. For example, PGandE has over 3.7 million ratepayers and has a weighted average number of common shares outstanding of 320 million. Pacific Gas and Electric Company, Report for the Third Quarter Ended September 30,
| |
| ~ Similarly, LP&L serves an area with a population over 1.6 million and has over 130 million outstanding shares. Louisiana.Power-& Light Company, 1985 Annual Report,
| |
| : 15. Although no nuclear power pla~t orders have been placed since 1978, (Starr and Braun, U.S. Nuclear Power Performance, Energy Policy, Sept.
| |
| FOOTNOTES 1984, at 254) the nuclear industry and Congress are preparing for the next generation of nuclear power plants. The nuclear industry, including electric utilities, manufacturers, architect-engineers and the Nuclear Regulatory Commission, has embarked on a program to develop the next generation of nuclear power plants. Douglas, Nuclear Power: The Next Generation, EPRI Journal, March 1985, at 6. This program's intent is to improve and simplify the design of nuclear power plants and the licensing of these plants. Id. Legislation has been proposed in both the Senate (S. 836, 99th Cong., 1st Sess. (1985)) and the House of Representatives (R.R. 1029, 99th Cong., 1st Sess. (1985); R.R. 1447, 99th Cong., 1st Sess. (1985); and R.R. 2488, 99th Cong., 1st Sess. (1985)) to provide standardized plant designs and a single licensing proceeding for construction permits and operating licenses. 214 Engineering News Rec.,
| |
| Feb. 28, 1985, No. 9 at 18. However, the single licensing proceeding concept is still subject to the problem addressed by this comment. The concept merely reduces the opportunities available for the injection of allegations.
| |
| : 16. For puroposes of this comment the term ~on-meritorious allegation includes allegations without merit and duplicative allegations. This comment will focus on the problems experienced by PGandE.
| |
| : 17. The Atomic Energy Act of 1954, Pub. L. No. 703, 68 Stat. 919 (1954)
| |
| (codified at 42 U.S.C. sss 2011-2296).
| |
| : 18. Id. at ss ss3).
| |
| : 19. Id. at ss 21.
| |
| : 20. Id. at ss 31-33.
| |
| FOOTNOTES
| |
| : 21. Id. at ss 101-110.
| |
| : 22. Id. at ss 161-169.
| |
| : 23. Energy Reorganization Act of 1974, 42 U.S.C. ss 5814 (a) (1982).
| |
| : 24. Id. at ss 5841 (f) (1982).
| |
| : 25. The Atomic Energy Act incorporates provisions of the Administrative Procedures Act. 42 U.S.C. ss 2231 (1982). These provisions allow governmental agencies, such as the NRG, to establish and publish procedural and substantive rules. 5 U.S.C. ss 552 (1982). Pursuant to these provisions, the NRG has promulgated such rules for the licensing of nuclear power plants in the Code of Federal Regulations, Title 10, Parts 2 and 50.
| |
| : 26. 10 C.F.R. ss 50.10 (b).
| |
| - 27. Id. at ss 50.33. Such general information includes descriptive information regarding the applicant, the class of license applied for, the period of time for which the license is sought, and information sufficient to demonstrate the applicant's financial qualifications to carry out the activities covered by the license. Id.
| |
| : 28. Id. at ss 50.34 (a). The PSAR includes a description and safety assessment of the plant site, the preliminary design of the facility, a preliminary analysis and evaluation of the design, a description of the quality assurance program for the design and construction phases, a discussion of the preliminary plans for coping with emergencies and other pertinent information. Id.
| |
| : 29. Id. at ss 50.58 (b).
| |
| : 30. The ASLB is established by the NRG to preside in licensing proceedings
| |
| \
| |
| | |
| I FOOTNOTES and is comprised of three members of the Atomic Safety and Licensing Board Panel: one member qualified in the conduct of administrative proceedings and tow members with technical or other qualifications the I
| |
| NRG deem~ appropriate. Id. at ss 2.721 (a). The Panel consists of administ~ative judges appointed by existing members of the Panel. Id. at ss 1.11.
| |
| : 31. Id. at ss 2.764 (e) (1).
| |
| I
| |
| : 32. The ASLAB is composed of three members of the Atomic Safety and Licensing I
| |
| I' Appeal P4nel possessing qualifications deemed appropriate by the Chairman I
| |
| of the Panel. Id. at ss 2.782(a). The Panel consists of administrative judges appointed by existing members of the Panel. Id. at ss 1.12.
| |
| I
| |
| : 33. Id. at sss 2.764 (e) (2), 2.785 and 2.762.
| |
| I
| |
| - 34. Id. at ss 2.786 (b) (1).
| |
| : 35. Id. at ss 50.50.
| |
| i i
| |
| : 36. Id. at ss 50.10 (a).
| |
| i
| |
| : 37. Id. at s~ 50.55 (d). Prior to obtaining an operating license authorizing full pow~r, in any case where a he'aring is held in connection with a pending operating license proceeding, a utility may seek an operating license authorizing low power testing and further operation short of full power. Id. at ss 50.57 (c) (1985). This low power license authorizes operation of the plant at not more than one percent of full
| |
| .power for the purpose of testing the facility. Id. This leads to three distinct licenses which a utility may obrain during the licensing process of its nuclear power plant: construction permit, low power testing license and full power operating license.
| |
| FOOTNOTES
| |
| : 38. Id. at ss 50.34 (c).
| |
| : 39. Id. at ss 50.34 (b). The FSAR includes information that describes the plant, its design bases and their operation limits, and a safety analysis of the structures, systems, components and the facility as a whole. Id.
| |
| : 40. See, Id. at sss 2.764 (f) (1) (ASLB), 2.785 (a) and 2.762 (a) (Appeal Board, 2.786 (b) (1) (Commission) and 50.58 (b) (hearing requirement).
| |
| : 41. Id. at sss 50.56-50.57.
| |
| 42 42 u.s.c. ss2239 (b).
| |
| : 43. 10 C.F.R. ss 2.714 (a) (1).
| |
| : 44. Id. at ss 2.714 (d).
| |
| : 45. Id. at ss 2.714 (b).
| |
| : 46. Id.
| |
| : 47. Id. at Appendix A of Part 2.
| |
| : 48. 4 A.E.C. 89 (1968).
| |
| : 49. Id.
| |
| : 50. 7 N.R.C. 989, 992 n. 2 (1978).
| |
| : 51. 4 A.E.C. 447 (1970).
| |
| : 52. Id. at 448-9.
| |
| : 53. 7 N.R.C. 989, 992 n. 2 (1978).
| |
| : 54. Id. at 991.
| |
| : 55. 20 N.R.C. 267, 280 (1984).
| |
| : 56. Los Angeles Times, Aug. 18, 1984, at , .col.
| |
| : 57. Wall St. J.' Nov. 1, 1984, at 10, col. 2.
| |
| : 58. Pacific Gas and Electric Company, Report for the Third Quarter Ended September 30, 1985, p. 9.
| |
| FOOTNOTES
| |
| : 59. 22 N.R.C. 177 (1985).
| |
| : 60. PGandE's Management News Digest, Thursday March 13, 1986.
| |
| : 61. During the construction permit licensing proceeding, the intervenors included Gerald C. Weaver, Esq. and Hal Strobe (on behalf of the San Luis Obispo Properties, the owner of the land on which PGandE proposed to construct the plant, in favor of PGandE's application), M.A. Walter (on behalf of the Local Union 1245, International Brotherhood of Electrical Workers, which represented the PGandE workers to be employed at Diablo Canyon, in favor of PGandE's application) and Ian I. McMillian, Dr.
| |
| Roderick Nach and Dr. Issac Farfel (on behalf of Scenic Shoreline Preservation Conference Inc., whose members reside within 10-50 miles of the plan~ site, in opposition to PGandE's application). 4 A.E.C. 89 (1968). In the early stages of PGandE's operating license proceeding additional intervenors included Elizabeth P. Apfelberg and Sandra A.
| |
| Silver (on behalf of themselves and San Luis Obispo Mothers for Peace, in opposition to PGandE's application) (7 A.E.C. 999 (1974)) and William P.
| |
| Cornwell (a commercial abalone fisherman from nearby Morro Bay, California) (8 A.E.C. 241 (1974)).
| |
| : 62. 4 A.E.C. 89 (1968).
| |
| : 63. 7 A.E.C. 999 (1974).
| |
| : 64. 7 N.R.C. 989 (1978).
| |
| : 65. In the Diablo Canyon operating lieense proceeding, intervenors who had an admitted allegation on the physical security plan retained Yale I. Jones, Esq. of San Francisco, California and Paul C. Valentine, Esq. of Palo Alto, California in 1977. 5 N.R.C. 1398 (1977) and 7 N.R.C. 989, 993 FOOTNOTES (1978). All intervenors were represented on all other issues by the Center for Law in the Public Interest of Los Angeles, California. 7 N.R.C. 989, 993 (1978).
| |
| : 66. In a 1981 evidentiary hearing before the Appeals Board regarding seismic issues, the intervenors presented James N. Brune (a Professor of Geophysics at the University of California - San Diego), Stephen Alan Graham (an Exploration Geologists from San Francisco, California),
| |
| Clarence A. Hall, Jr. (a Professor of Geology at the University of California - Las Angeles), Richard B. Hubbard (a partner in a cousulting firm located in Palo Alto, California) and Eli Alfred Silver (an Associate Professor of Earth Sciences at the University of California -
| |
| Santa Cruz). 13 N.R.C. 903, 1011-12 (1981).
| |
| : 67. 20 N.R.C. 267, 273 (1984).
| |
| : 68. Pacific Gas and Electric Company, Diablo Canyon Power Plant Application No. 89-06-014, Licensing, at 97 (1984).
| |
| : 69. See generally, 19 N.R.C. 953, 959 (1984), 20 N.R.C. 776 (1984).
| |
| : 70. Issac, Games Anti-Nukes Play, The American Spectator, Volume 18, No. 11, November 1985, at 12.
| |
| : 71. See generally, A whistleblower's Guide to the Federal Bureaucracy, Government Accountability Project, 1977; Noonan, Group Stretches Tight Budget to Help Fed Whistleblowers, Federal Times, Volume 20, July 23, 1984; and McGowan, The 'Whistleblowing Game: Truth and Gonseq~ences,_ New Age Journal, September 1984, at 45
| |
| : 72. See, Inside N.R.C., Vol. 7, No.7, Aprill, 1985, at 11, 22 N.R.C. 5 (1985) and 20 N.R.C. 1007 (1984).
| |
| : 73. See, Inside N.R.C., Vol. 7 No.2 , January 21, 1985, at 5 and 20 N.R.C.
| |
| 1646 (1984).
| |
| : 74. See, 21 N.R.C. 1552 (1985).
| |
| : 75. See, 19 N.R.C. 480 (1984).
| |
| : 76. See, 20 N.R.C. 161 (1984); 21 N.R.C. 1754 (1985).
| |
| : 77. See, 19 N.R.C. 478 (1984); 19 N.R.C. 633 (1984); and 20 N.R.C. 226 (1984). Other proceedings which have attracted the attention of GAP include Southern California Edison's San Onofre plant, Arizona Public Service's Palo Verde plant and Commenwealth Edison Company's LaSalle and Braidwood plants. Issac, Games Anti-Nukes Play, The American Spectator, Volume 18, No. 11, November 1985, at 13, n.2.
| |
| : 78. See, footnote 43 and accompanying text.
| |
| : 79. See, footnote 45, footnote 46 and accompanying text.
| |
| : 80. 19 N.R.C. 953, 958-59 (1984).
| |
| : 81. Pacific Gas and Electric Company, Diablo Canyon Power Plant Application No. 89-06-014, Licensing, at 124 (1984).
| |
| : 82. 19 N.R.C. 953, 958 (1984).
| |
| : 83. Id.
| |
| : 84. Safety Evaluation Report Related to the Operation of Diablo Canyon Nuclear Power Plant, Units 1 and 2, NUREG-0675, Supplement No. 22, March 1984, at E-1. For a discussion of what a low power license is and when it can be issued see footnote 37, supra.
| |
| : 85. 19 N.R.C. 953, 959 (1984).
| |
| : 86. Id.
| |
| FOOTNOTES
| |
| : 87. 20 *N:R.C. 267, 273 (1984).
| |
| : 88. Safety Evaluation Report Related. to the Operation of Diablo Canyon Nuclear Power Plant, Units 1 and 2, NUREG-0675, Supplement No. 32, at 5-1.
| |
| : 89. 20 N.R.C. 267, 273 (1984).
| |
| : 90. Id.
| |
| : 91. Id. at 274.
| |
| : 92. Safety Evaluation Report Related to the Operation of Diablo Canyon Nuclear Power Plant, Units 1 and 2, NUREG-0675, Supplement No. 32, at 5-1.
| |
| : 93. See generally, Safety Evaluation Report Related to the Operation of Diablo Canyon Nuclear Power Plant, Units 1 and 2, NUREG-0675, Supplement No. 22, March 1984, at E-1, E-14; 20 N.R.C. 267, 273.
| |
| : 94. Issac, Games Anti-Nukes Play, The American Spectator, Volume 18, No. 11, November 1985, at 14.
| |
| : 95. Statement of Policy; Handling Late Allegations, 50 Fed. Reg. 11,031 (1985).
| |
| : 96. Id.
| |
| : 97. Id.
| |
| : 98. Id.
| |
| : 99. Id.
| |
| 100. 1 Am, Jur, 2d, Abuse of Process, ss 1 (1962).
| |
| 101. Prosser, Torts (5th ed) 121, p. 897. See also Slaughter v. Legal Process & Courier Service, 162 Cal. App. 3d 1236, 209 Cal. Rptr. 189 (1984); Ion Equipment Corp. v. Nelson, 110 Cal. App. 3d 868, 168 Cal.
| |
| FOOTNOTES Rptr. 361 (1980).
| |
| 102. California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 513 (1972).
| |
| 103. See generally, Ion Equipment Corp. v. Nelson, 110 Cal. App. 3d 868, 876, 168 Cal. Rptr~ 361, 364; Restatement of the Law Second, Torts 2d ss 682 (1981); Spellens v. Spellens, 49 Cal. 2d 210 (1957); and Trabchina v.
| |
| Arcinus, 78 Cal. App. 2d 522, 178 P.2d 65, 68 (1947).
| |
| 104. Board of Education v. Farmingdale Classroom Teachers Assoc., 38 N.Y.2d 397, 380 N.Y.S.2d 635 (1975). See also Templeton Feed and Grain v.
| |
| Ralston Purina Company, 69 Cal. 2d 461, 72 Cal. R~tr. 344 (1962).
| |
| 105. 10 C.F.R. ss 2.708 (c) (1985).
| |
| 106. Id.
| |
| 107. Id.
| |
| 108. 10 C.F.R. ss 2.713(c) (1985).
| |
| 109. Id.
| |
| 110. ;Eed R- Civ, ~- ll,
| |
| \
| |
| 111. Id.
| |
| 112. Id.
| |
| 113. Idianapolis Colts v. Mayor and City Council of Baltimore, 775 F.2d 177, 181 (7th Cir. 1985) (citing Eastway Construction Corp. v. City of New York, 762 F.2d 243, 256 (2d Cir. 1985).
| |
| 114. -Fed R, Civ. P, 11, 115. Id.
| |
| 116. Id.
| |
| 117. See Advisory Committee's Notes to 1983 Amendment of Rule 11.
| |
| FOOTNOTES 118. 10 C.F.R. S 205.203 (b) (1985).
| |
| 119. 10 C.F.R. ss 205.203 (c) (1985).
| |
| 120. 18 C.F.R. ss 385.2102 (a) (1985).
| |
| l NUCLEAR ENERGY INFORMATION SERVICE DOC,/';rru*
| |
| P.O BOX 1637
| |
| * EVANSTON, ILLINOIS 60204-1637 USNH C (312) 869-7650
| |
| .86 OCT 16 p3 :ss Date:
| |
| OFFtc i- J"
| |
| * 1 T : Docketinc ana. Service Branca Secret00c1tr1NG t\;: ,?' f 1 U. S. N clear Reg l tory Coaai sion BRANcr/P.dC f.
| |
| Wa aincton, DO 20555 Fro: 5 lear Enera In!ora tion SerYi e P. O. Box 1637 ET naton , IL 60204 Rs: NRC'a Propoaea. Pro ea.ur l Cllance* in tlle Li ensinc Hearinc Pro ea In v o inion, tlle ** n1e1Ein tlle llearinc proceaa proposei
| |
| *Y tlle NRC represent exa tly t e wr$nc priority on tlle part or tll acency . Tlli is mot a1 ti e to apeei: p tlle- procesa o!
| |
| lieensinc !or new n *lear ower plants , espe ia~ly iy ioinc eYerytllinc possi*le to ini*ize tlle role o! p blie interYenora in seeinc to it tllat Yit 1 q estions of plant afety ani reliability are anawe~ed ( e ause tllis wouli *e tlle effe to!
| |
| i pleaentinc tlle new rule) . Muell rataer, tlli* ia m ti e for tlle liRC to ,o ** k to tae procra it ea arkei on fter tlle Taree Mile Islana. a* ia.ent iut lla~ aince aiana.onei: Haely , to increaae tlle aafety o! existinc n elear lanta , o! w)ai a tllere are now 102 .
| |
| EYerytllinc poasiile allo la ea.one to rea.**e tlle eYere a*ciient risk at tlleae plantF. To tllia ene, tlle new iaek!it r le allo*li
| |
| ** repealea. ie auss it alli!t tlle iurien of proof to proponents o! sa!ety iproYe enta . Tllia ontraiicta tae policy et !ortll iy tlle Presiient's Co ission on tlle TMI a iient taat new aa!ety i roYe ent are to ie ieTelo e~ an~ iaple ente . Tllat pro*es~
| |
| aao la not ie aie wme essarily i!fi ult .
| |
| illere is u ll talk a1owt ievelo inc IEtana.ariizei reactor a.eaicns . EYen it one really safe a.esi1n were a.eYelopea. , tllo ell ,
| |
| tllat wo li still ae no reason to sllut tlle ali* o*t or tlle lieensinc llearin& proeess as
| |
| * proposea. by tke Coission. After all , ea ll re1ion or tae ountry as its own unique 1eologi al ,
| |
| cli atological, seis ie, n
| |
| * otker haracteristics w iell loeal eople are est q ali!iei to i iscuss in relat i on to reactor safety Gonsi erations . But the trutll is taat tlle nu lear ina. str1 AcknaNtedged by carer ****
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| di I I NUCLEAR REGULATORY c*o 1$ *"°'.f l
| |
| * r r:,
| |
| .J.
| |
| 1 P9CKETll'lG & srnv1cE SECTION J l .
| |
| OFFICE OF T' ~ ':~CRET~R'f0 . -L j l .i:
| |
| PF V
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| J H![: _( C','.''.\_ISSIO~
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| C
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| *1 j , ( j ...I J .*
| |
| J l - ,I l' l J
| |
| __.__ ..L,_
| |
| ~
| |
| | |
| wants no li it on tae nu er of esicns taat *ouli *e *stan ariizei.*
| |
| iaat is no iaproveaent over the present situation o! ustoaizei plants. In tae aeantiae, tae country aas 102 nv*leaP nits operatinc in tae taoe of a lencthy liat of unresolvei safety efecta--aatters suca aa pressure vess~l ea*rittleaent, pipe r ckin,, ateaa cenerator tu e era kin 9 !eedwater s arger e,ra<<.ation, t e naae a few. Tlle U.S'. pu li*
| |
| * n look !'orwari t*
| |
| several taousana reactor years ot aazar 0ua operation o! taose- lants waile tae:--NRC seeks to fini ways to a <eaaoiate the n-*lear iniustry even Gre o sequiously than aefore.
| |
| In aU11 ary, we reje t *aapletely tae **ance~ ro oaei *Y tae NRC. :rurtaeraore, we uce tae ar;en y to a.evise aaort--tera an*
| |
| lonc-tera aolutiona- to tae safety pro lea at presently o eratinc reaCJtors.
| |
| | |
| ='1......,PR-~
| |
| C~I F£ ~,4j&,£ Docketing & Service Branch Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 '86 OCT 15 P3 :36 DOCKET/fo 50-443/50-4440L OFFI CE:. J* *r ... f;-.r't OOCKET lt G & sr- v1cr.
| |
| BRAN CH D'ear Sir:
| |
| This letter concerns the proposed rule changes in licensing procedures for nuclear power plants. It is clear that these proposed changes are designed to get the public out of the licensing process and to speed up licensing of nuclear power plants in the United States, this democratic country. We are aware that these proposals would:
| |
| : 1. Raise admissions criteria for contentions.
| |
| : 2. Restrict use of discovery against NRC staff.
| |
| : 3. Restrict use of cross-examination during hearings.
| |
| : 4. Allow Summary Disposition of contentions anytime during the licensing proceedings.
| |
| : 5. Limit the scope of issues that could be appealed.
| |
| All these proposals minimize the role and effect of intervenors during licensing proceedings.
| |
| Raising admissions criteria means the intervenor basically must prove his case in advance. As the rules are now, intervenors can hardly get NRC staff reports; comments on license applications are generally not available.
| |
| This proposal would keep safety information from being brought forward to
| |
| ~
| |
| protect the public.
| |
| -- By restricting the use of discovery against the NRC staff, the public would have to take the NRC at its word. - Under current law, the NRC staff* -* *!
| |
| can be forced to justify its conclusions.
| |
| Restricting the use of cross-examination means that intervenors would have to obtain special permission from the hearing judge in order to - cross-examine witnesses. Face to face confrontation- is the people's tool for getting at facts behind an applicant's claims.
| |
| Allowing Summary Disposition at anytime is a blatant disregard for public input. Potentially,all of an intervenors contentions could be dismissed even before any hearing took place.
| |
| Fi nally, limiting the scope of issues that could be appealed prevents -
| |
| intervenors with interests in another party's contentions - from contributing to the hearing process.
| |
| Intervenors are voices of concern for public safety, a matter which the NRC continues to disregard.
| |
| We oppose these rule changes for the harm they do to public participation.
| |
| Does the NRC wish to be autonomous? If so, they will surely be held accountable when safety measures prove insufficient in American nuclear power plants.
| |
| * Yours truly,
| |
| )(_~S- ~
| |
| Acknowfedged by caret , OCT 1 6 1986
| |
| . *
| |
| * rm,-. * ;:;;-;.;~, ,Twr
| |
| | |
| EAR. REGULATORY COMMI ETING & S[R"ICE SECTION FICE OF TH E c;rcRETAF:.Y' Qt; ***e ~,- IC)~
| |
| /~;1/(!7
| |
| /
| |
| ,4 r,wulivn
| |
| | |
| Docketing & Service Branch DOl K[ l L:.
| |
| Secretary of the Commission USNHC U.S. Nuclear Regulatory Commission Washington, D.C. 20555 DOCKETiF 50-443/50-4440L .86 OCT 15 P3 :52 c:
| |
| OFf ll,t.. G ., L,. :. ,,.,,,
| |
| * QOCKETING il..: it. :w1r:r BRANC~
| |
| | |
| ==Dear . Sir:==
| |
| | |
| This letter concerns the proposed rule changes in licensing procedures for nuclear power plants. It is clear that these proposed changes are designed to get the public out of the licensing process and to speed up lic e nsing of nucle a r power pl a nts in the United States,
| |
| * this democratic country. We are aware that these proposals would:
| |
| : 1. Raise admissions criteria for contentions.
| |
| : 2. Restrict use of discovery against NRG staff.
| |
| : 3. Restrict use of cross-examination during hearings.
| |
| : 4. Allow Summary Disposition of contentions anytime during the licensing proceedings.
| |
| : 5. Limit the scope of iss ues that could be app e aled.
| |
| All these proposals minimize the role and effect of interve nors during licensing proceedings.
| |
| Raising admissions criteria means the intervenor basically must prove his case in advance;** As the rules are now, intervenors_ can hardly get NRG :
| |
| staff reports; comments on license applications are generally not available.
| |
| This proposal would keep safety information from being brought forward *to
| |
| * pro tee t *the pub Fe.
| |
| By restricting the use of discovery a g ainst the NRG staff, the . public ~
| |
| would have to take the NRG at its word. Under *current law, the NRC staff ._.,.
| |
| _can be forced to justify its conclusions.
| |
| Restricting the use of cross-examination means that intervenors would have to obtain sp e cial p e rmission from the h e aring *judg~ in order to cross~ -
| |
| e xam ine witn es ses. Face to face confrontation is the people's
| |
| * tool for getting *at facts behind an applicant's claims . .
| |
| Allowing Summary Disposition at anytime is a blatant disregard for public input. Potentially,all of an intervenors contentions could be dismiss e d even _
| |
| * before any hearing took place.
| |
| Finally, limiting the scope of issues that could be appealed prevents intervenors with interests in a nother party's contentions from contributing to the hearing process.
| |
| Intervenors are voices of concern for public safety, a matter which the NRG continues to disregard.
| |
| We oppose these rule c~an g es for the harm they do to public participation.
| |
| Does the NRG wish to be autonomous? If so, they will surely be held accountable wh~n safety measures prove insufficient in American nuclear power plants.
| |
| * Yours truly,
| |
| | |
| CLEA~ ~r~, ATfJRY COMMI DOCKETINC, ' rE SF.CTIO OFFICE '\RY OF D
| |
| ostmark D Copi s R dd'I C cial r
| |
| | |
| Docketing & Service Branch Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 DOCKET// 50-443/50-4440L OCT 15 p4 :oo
| |
| \
| |
| | |
| ==Dear . Sir:==
| |
| | |
| This letter concerns the proposed rule changes in licensing procedures for nuclear power plants. It is clear that these proposed changes are designed to get the public out of the licensing process and to speed up licensing of nuclear power plants in the United States, this democratic country . We a re aware that these proposals would:
| |
| : 1. Raise admissions criteria for contentions.
| |
| : 2. Restrict use of discovery against NRC staff.
| |
| : 3. Restrict use of cross-examination during hearings.
| |
| : 4. Allow Summary Disposition of contentions anytime during the licensing proceedings.
| |
| : 5. Limit the scope of issues that could be appealed.
| |
| All these proposals minimi z e the role and effect of intervenors during licensing proceedings .
| |
| Raising admissions criteria means the interve nor basically must pro v e his case in advance. As the rules are now, intervenors can hardly g et NRC staff reports; comments on license applications are generally not available.
| |
| This proposal would keep safety informa tion from being bro ug ht forward to protect *the pubtic.
| |
| By restricting the use of discovery against , t h e NRC staff, the . public -
| |
| would have to take the NRC at its word. Under *current law, the NRC staff
| |
| * _can be forced to just i fy its conclusions.
| |
| Restricting the use of cross-examination means that intervenors would have to obtain special permission from the hearing judge in order to cross- -
| |
| examine witnesses. Face to face confrontation is the people's - tool for getting *at facts behind an applicant's claims.
| |
| Allowing Summary Disposition at anytime is a blatant disre gard f o r pub li c input. Potentially,all of an intervenors contentions could be dismissed eve n before any hearing took place. ...,
| |
| Finally, limiting the scope of issues that could be appealed prevents intervenors with interests in another party's contentions fro~ contributing to the hearing process.
| |
| 8 ..
| |
| Intervenors are v oices of concern for public safety, a matter which the NRC continues to disregard.
| |
| We oppose these rule changes for the harm they do to public participation.
| |
| Does the NRC wish to be autonomous? If so, they will surely be held accountab,le when safety rne:isures prove insufficient in American nuclear power plants.
| |
| * Mr. C J Sweeney Lake Attitub The Birch ~*
| |
| Ames ury MA 01913
| |
| | |
| IL
| |
| * NUaEAR REGULATORY COMMISSI~
| |
| DOCKETING & SERVICE SECTION OF ll t ~ - rrr nqt._RY
| |
| ,,. IQ l Ad
| |
| $p c1al
| |
| | |
| Oci- . '15.) cq<g;b cr-1 fn"YV' e, s k.v c;--t-Docketing & Service Branch N-ew lo uv y p ov~
| |
| Secretary of the Commission U.S. Nuclear Regulatory Commissio~
| |
| Washington, D.C. 20555 OCT 10 P3 :4a DOCKET# 50-443/50-4440L
| |
| \
| |
| | |
| ==Dear . Sir:==
| |
| | |
| This letter concerns the proposed rule changes in licensing procedures for nuclear power plants. It is clear that these proposed changes are designed to get the public out of the licensing process _and to speed up licensing of nuclear power plants in the United States, this democratic country. We are aware that these proposals would:
| |
| : 1. Raise admissions criteria for contentions.
| |
| : 2. Restrict use of discovery against NRC staff.
| |
| : 3. Restrict use of cross-examination during hearings.
| |
| : 4. Allow Summary Disposition of contentions anytime during the licensing proceedings.
| |
| : 5. Limit the scope of issues that could be appealed.
| |
| All these proposals minimize the role and effect of intervenors during licensing proceedings.
| |
| Raising admissions criteria means the intervenor basically must prove his case in advance. As the rules are now, intervenors can hardly get NRC staff reports; comments on license applications are generally not available.
| |
| This proposal would keep safety information from being brought forward to protect *the public.
| |
| By restricting the use of discovery against the NRC staff, the public would have to take the NRC at its word. Under current law, - the NRC staff
| |
| * can be forced to justify its conclusions.
| |
| Restricting the use of cross-e xaminatio n means that intervenors would have to obtain special permission from the hearing judge in order to cross-examine witnesses. Face to face confrontation. is the people's tool for "
| |
| getting at facts behind an applicant's claims, Allowing Summary Disposition at anytime is a blatant disregard for public impu t. Potentially,all of an intervenors contentions could be dismissed even .
| |
| before any hearing took place.
| |
| Finally, limiting the scope of issues that could be appealed prevents intervenors with interests in another party's contentions from contributing to the hearing process.
| |
| Intervenors are voices of concern for public safety, a matte r which the NRC continues to disregard.
| |
| We oppose these rule changes for the harm they do to public participation.
| |
| Does the NRC wish to be autonomous? If so, they will surely be held accountable when safety measures prove insufficient in American nuclear power plants.
| |
| * Yours truly,
| |
| ?54fTP!Jl r/4~.._......'-----""
| |
| I
| |
| 'Svo++ T.
| |
| | |
| 0 rm & 0 Copies .
| |
| Add' I Copi <
| |
| ci I Distribution
| |
| | |
| Docketing & Service Branch DOl KEit.~
| |
| ~:5 NPC Secretary of the Commission U.S. Nuclear Regulatory Commission 0
| |
| Washington, D.C. 20555 86 OCT 10 P3 :48 DOCKETII 50-443/50-4440L OFF ICt. ur _[: *~* t At<~
| |
| OOC KETIN G t.i SERV ICf BR.A NCH
| |
| | |
| ==Dear Sir:==
| |
| | |
| This letter concerns the proposed rule changes in licensing procedures for nuclear power plants. It is clear that these proposed changes are designed to get the public out of the licensing process and to speed up licensing of nuclear power plants in the United States, this democratic country. We are aware that these proposals would:
| |
| : 1. Raise admissions criteria for contentions.
| |
| : 2. Restrict use of discovery against NRC staff.
| |
| : 3. Restrict use of cross-examination during hearings.
| |
| : 4. Allow Summary Disposition of contentions anytime during the licensing proceedings.
| |
| : 5. Limit the scope of issues that could be appealed.
| |
| All these proposals minimize the role and eff~ct of intervenors during licensing proceedings.
| |
| Raising admissions criteria means the intervenor basically must prove his case in advance . As the rules are now, intervenors can hardly get NRC staff reports; comments on license applications are generally not available.
| |
| This proposal would keep safety information from being brought forward to protect the public.
| |
| By restricting the use of discovery against the NRC staff, the public would have to take the NRC at its word . Under current law, the NRC staff can be forced to justify its conclusions.
| |
| Restricting the use of cross-examination means that intervenors would have to obtain special permission from . the hearing judge in order to cross-examine witnesses . Face to face confrontation is the people's tool for getting at facts behind an applicant's claims.
| |
| Allowing Summary Disposition at anytime is a blatant disregard for public input. Potentially,all of an intervenors contentions could be dismissed even before any hearing took place. .
| |
| Finally, limiting the scope of issues that could be appealed prevents intervenors with interests in another party's contentions from contributing to the hearing process.
| |
| Intervenors are voices of co~cern for public safety, a matter which the NRC continues to disregard.
| |
| We oppose these rule changes for the harm they do to public participation.
| |
| Does the NRC wish to be autonomous? If so, they will surely be held accountable when safety measures prove insufficient in American nuclear power plants.
| |
| | |
| 11,f, NUaEAR REGULATORY COMMISSI OOCKETING p. ~t"VICE ('rrr,oN GFF ll"E ".), I *rn* r;, y OF "!'fl. -~ \ N
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| ,,,tm rk Copl 1 D *~
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| 0 .JCu
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| *;~;;v_/ ...
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| ~
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| ~dd' I
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| ,, I r Ir r\
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| 4
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| l WARREN A. BISHOP Chair STATE OF WASHINGTON NUCLEAR WASTE BOARD Mail Stop PV-11
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| * Olympia, Washington 98504 * (206) 459-6670 "86 OCT -9 p 3 :05 October 7, 1986 Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Docketing and Service Branch
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| * Re: Proposed Rule--10 CFR Part 2, Rules of Practice for Domestic Licensing Proceedings--
| |
| Procedural Changes in the Hearing Process This is written in response to the invitation to submit comments, as set forth in 51 Federal Register 24365, dated July 3, 1986, relating to the subject proposed.
| |
| The proposals, as we understand them, are designed generally to make more efficient and less costly the process-ing by your agency of applications for licenses for nuclear facilities. This is, of course, a laudable objective; however, we have very serious reservations as to the thrust of the pro-posed rule, especially as it relates to such a highly sensitive area of government regulation as nuclear facilities licensing *
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| * In light of the widespread apprehension across our nation with regard to the entire area of nuclear facilities, e.g.,
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| power plants and waste repositories, it is imperative that the licensing process relating to such facilities be as credible as possible in order to ensure public safety and instill public confidence in your agency's program. To promote that end, it is necessary in our view to establish a liberal policy with regard to both who may participate formally as parties in a licensing proceeding and what evidence may be presented and testimony elicited by such parties. Following this policy, a full and complete record will allow your Commission to reach well-reasoned decisions based upon all sources of information reasonably available.
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| Your proposal of July 3, 1986 is not in harmony with the policy and approach just described. It is our view that the oc 10 1986 Ack110Wtedged by card .* nn'o I ***** ,...-rn\li
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| U, S. NUCLE',R REGULATORY COMM ISSION:
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| DOCKETING & SERV,Ct. BRANCl-l OFf ,C 1.,F TI-JE. SECRc.TARY, OF- THE. COMM!
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| ;t'(-
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| | |
| U.S. Nuclear Regulatory Commission October 7, 1986 Page 2 proposed rule is designed not only to make it more difficult for an interested person to become a formal party-intervenor, but to reduce the opportunities of an intervenor to present evidence and cross-examine witnesses. See proposals §2,714 and §2.743. On the latter point, we are of the view, contrary to the proposal, that an intervenor should have very broad and wide-ranging opportunities to present relevant evidence and conduct appropriate cross-examination. Likewise, we believe, contrary to the proposed rule, that intervenors should be allowed to present proposed findings of fact and conclusions of law of the same scope as a party-applicant. See proposal
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| §2.754. Similar treatment of intervenors should also be given as to the scope of content of briefs filed on appeals to the Commission from initial decisions. See proposal §2.754 *
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| * Finally, we have serious concerns as to the limitations placed on discovery of information in the possession of the staff of the NRC. See proposal §2.720. In our view, the scope of interrogatories should be broad enough to allow discovery of all information of the staff that is relevant to any issue raised in the proceeding.
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| In sum, we believe that the proposed rules should not be adopted. They, in large measure, embody an unwise crabbed approach to license application processing by the Nuclear Regulatory Commission.
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| Turning to Commissioner Asselstine's proposals, we support his suggestion that the Commission publish, prior to the docketing of an application, a notice that an application for a permit or license has been filed with the Commission.
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| See 51 Fed.Reg. 24369, Column 3 *
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| * Thank you for the opportunity to present these views.
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| Very truly yours,
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| ~~If' Warren A. Bishop Chairman WAB:gb
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| Docketing & Service Branch OOl KfT Er' US NHC Secretary of the Cormnission U.S . Nuclear Regulatory Commission Washington, D.C. 20555 "86 OCT -8 PS :17 DOCKETIF 50-443/50-4440L OF FI CE C. S. ,, 1 IAr-:
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| OOC KE. TIN G ,x .,E t'VIC f.
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| BR ANCH
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| | |
| ==Dear Sir:==
| |
| | |
| This letter concerns the proposed rule changes in licensing procedures for nuclear power plants. It is clear that these proposed changes are designed to get the public out of the licensing process and to speed up l icensing of nuclear power plants in the United States, this democratic country. We are aware that these proposals would:
| |
| : 1. Raise admissions criteria for contentions.
| |
| : 2. Restrict use of discovery against NRC staff.
| |
| : 3. Restrict use of cross-examination during hearings.
| |
| : 4. Allow Summary Disposition of contentions anytime during the licensing proceedings.
| |
| : 5. Limit the scope of issues that could be appealed.
| |
| All these proposals minimize the role and effect of intervenors during licensing proceedings.
| |
| Raising admissions criteria means the intervenor basically must prove his case in advance. As the rules are now, intervenors can hardly get NRC staff reports; cormnents on license applications are generally not available.
| |
| This proposal would keep safety information from being brought forward to protect *the public.
| |
| By restricting the use of discovery against the NRC staff, the public would have to take the NRC at its word. Under current law, the NRC staff can be forced to justify its conclusions.
| |
| Restricting the use of cross-examination means that intervenors would have to obtain special permission from the hearing judge in order to cross-e x amine witnesses. Face to face confrontation is the ~eople's tool for getting at facts behind an applicant's claims. -
| |
| * Allowing Summary Disposition at anytime is a blatant disregard for public input. Potentially,all of an intervenors contentions could be dismissed even before any hearing took place ..
| |
| Finally, limiting the scope of issues that could be appealed prevents intervenors with interests in another party's contentions from contributing to the hearing process.
| |
| Intervenors are voices of concern for public safety, a matter which the NRC continues to disregard.
| |
| We oppose these rule changes for the harm they do to public participation.
| |
| Does the NRC wish to be autonomous? If so, they will surely be held accountable '
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| when safety measures prove insufficient in American nuclear power plants.
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| * Yours truly, M. l Ct-{A-E:C. 'P<2.:: tJQ ER.GA Sf
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| ::RARC3A~~ Dow.a
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| , 2... Y\,t t:.R. ie. 1L..L sr1c.eer t,:Ji2tAJ~uR.y'PoRr MA- o 19<[;0
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| U.I. NUCLEAR DOCKET!
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| PFf' I ~v c"dMM($$"'1!1 E SECTION OFF T .RY 0 ';)N Postmark Copic~ "
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| /t?/4 I Add'I c Speci I
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| Docketing & Service Branch OOCKEilt Secretary of the Connnission lJ SNRC U.S. Nuclear Regulatory Commission Washington, D. C . 20555 DOCKET:// 50-443/50-4440L 0
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| 86 OCT -8 P4 :48 OFF ICL Or St . : ;Ai-< Y 00CK ET ING & ~f VI Cf.
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| BRANUl
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| | |
| ==Dear Sir:==
| |
| | |
| This letter concerns the proposed rule changes in licensing procedures for nuclear power plants. It is clear that these proposed changes are designed to get the public ou t of the licensing process and to speed up licensing of nuclear power plants in the United States, this democratic country . We are aware that these proposals would:
| |
| * 1.
| |
| 2.
| |
| 3.
| |
| 4.
| |
| Raise admissions criteria for contentions.
| |
| Restrict use of discovery against NRC staff.
| |
| Restrict use of cross-examination during hearings.
| |
| Allow Summary Disposition of contentions anytime during the licensing proceedings.
| |
| : 5. Limit the scope of issues that could be appealed.
| |
| All these proposals minimize the role and eff~ct of intervenors during licensing proceedings.
| |
| Raising admissions cr ite ria means the intervenor basically must prove his case in advance. As the rules are now, intervenors can hardly get NRC staff reports; connnents on license applications are generally not available.
| |
| This proposal would keep *safety information from being brought forward to protect the public .
| |
| By restricting the use of discovery against the NRC staff, the public would have to take the NRC at its word. Under current law, the NRC staff can be forced to justify its conclusions.
| |
| Restricting the use of cross-examination means that intervenors would have to ob tain special permission from the hearing judge in order to cross- -
| |
| examine witnesses. Face to face confrontation is the people's tool for *
| |
| -.t' getting at facts behind an applicant's claims. C()
| |
| Allowing Summary Disposition at anytime is a blatant disregard for public °'
| |
| rl 0
| |
| input. Potentially,all of an intervenors contentions could be dismissed even ........
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| 1/)
| |
| before any hearing took place . . QJ 1/)
| |
| Finally, limiting the scope of issues that could be appealed prevents . . ::,
| |
| ..c:u intervenors with interests in another party's contentions from contributing 1/)
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| 1/)
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| to the hearing process .
| |
| Intervenors are voices of co~cern for public safety, a matter which ~
| |
| the NRC continues to disregard. E We oppose these rule changes for the harm they do to public participation. ..c:"'
| |
| C:
| |
| Does the NRC wish to be autonomous? If so, they will surely be held accountable QJ when safety measures prove insufficient in American nuclear power plants.
| |
| QJ QJ C/)
| |
| Yours truly ,
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| t
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| *')J/3~/'
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| .,,( lh~@~
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| ..c:
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| u 0
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| -.t' QJ Acknowtedlzed bv card . _. OCT 9 198~ '
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| U, S NUCLEAR RE~LJ ~ MMI SSIOS DOCKETING TION OFFICE ,Y OF D,
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| Postmark fh tr Copie* :-tc Add' I Cr
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| ! pecial D, r
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| | |
| OOl K[T ((
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| Docketing & Service Branch US NH C Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 .86 OCT -7 Pl2 :19 DOCKET/F 50-443/50-4440L OFFI CE y: :~' I. )1'.I* '(
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| DOCK ETING~ St:-.R VICF.
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| BRANC H
| |
| | |
| ==Dear Sir:==
| |
| | |
| This letter concerns the proposed rule changes in licensing procedures for nuclear power plants. It is clear that these proposed changes are designed to get the public out of the licensing process and to speed up licensing of nuclear power plants in the United States, this democratic c ountry. We are aware that these proposals would:
| |
| * 1.
| |
| 2.
| |
| 3.
| |
| 4.
| |
| Raise admissions criteria for contentions.
| |
| Restrict use of discovery against NRC staff.
| |
| Restrict use of cross-examination during hearings.
| |
| Allow Summary Disposition of contentions anytime during the licensing proceedings.
| |
| : 5. Limit the scope of issues that could be appealed.
| |
| All these proposals minimize the role and eff~ct of intervenors during licensing proceedings.
| |
| Raising admissions criteria means the intervenor basically must prove his case in advance. As the rules are now, intervenors can hardly get NRC staff reports; comments on license applications are generally not available.
| |
| This proposal would keep safety information from being brought forward to protect the public.
| |
| By restricting the use of discovery against ~he NRC staff, the public would have to take the NRC at its word. Under current law, the NRC staff can be forced to justify it~ conclusions. ::
| |
| Restricting the use of cross-examination means that intervenors would have to obtain special permission from the hearing judge in order to cross-examine witnesses. Face to face confrontation is the people ' s tool for getting at facts behind an applicant's claims.
| |
| Allowing Summary Disposition at anytime is a blatant disregard for public input. Potentially,all of an intervenors contentions could be dismissed even before any hearing took place.
| |
| Finally, limiting the scope of issues that could be appealed prevents intervenors with interests in another party's contentions from contributing to the hearing process.
| |
| Intervenors are voices of concern for public safety, a matter which the NRC continues to disregard.
| |
| We oppose these rule changes for the harm they do to public participation.
| |
| Does the NRC wish to be autonomous? If so, they will surely be held accountable when safety measures prove insufficient in American nuclear power plants. ~
| |
| Yours truly, Jeanne Schroth 34 Cedarcrest A*enue Salem. MA 01970 Acknowledged by carcf. ., -~~~ .....!.!~.. . ,
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| | |
| U.S. NUCLEAR REClfr ATl')RY COMMISSION DOCKETING R,_ C "l("C <; ECTION OFFIC~ C RY OF Tl-' Isl Postmark D~!.-.
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| Copies ,~
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| Add ' !
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| Special 1 ,...,
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| OO LKETlC:
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| usNRC
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| *86 OC1 -1 l\\O :02 October 6, 1986 NOTE TO RECEIPIENTS OF PR-2 (51 FR 24365)
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| Please note that Comment No. 68 was miscoded. This number will not be used again.
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| Docketing and Service Branch Office of the Secretary of the Commission
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| The Honorable Robert C. Smith United States House of Representatives Washington, D.C. 20515
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| | |
| ==Dear Congressman Smith:==
| |
| | |
| I have been asked to respond to your letter of September 16, 1986 to Chairman Zech regarding proposed changes to the procedures governing the Nuclear Regulatory Commission's licensing hearings.
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| On July 3, 1986, the Commission published in the Federal Register the enclosed notice inviting public comment on several proposed changes to our rules of practice. The notice describes the proposed changes in detail and provides the Commission's rationale for believing such changes may be warranted. Although public comments were to be submitted by September 2, because the Commission is particularly interested in receiving the views of the public on its proposal, it extended that date until October 17, 1986. After carefully evaluating the public comments, the Commission will then consider whether to issue a final rule. In acting on the proposals, the Commission will take your views into account .
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| * General
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| ==Enclosure:==
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| As stated
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| WASHINGTON OFFICE ROBERT C. SMITH 1ST DISTRICT , NEW HAMPSHIRE 506 CANNON BUILDING WASHINGTON . DC 20515 COMMITTEES: (202) 225-5456 sc1rncE AN D TECHNOLOGY DISTRICT OFFICES .
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| SMALL BUSINESS filottgress of t~e ,ttitd~ jihties 340 COMMERCIAL STREET MANCHESTER , NH 03101 N.E. MIDWEST CONG RE SSIONAL COA LITI ON :
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| ~ouse of ~epresenhttiues (603) 644-3387 90 WASHINGTON STREET STEERING COMMITTEE ;3Jl1lnsqington, ~(!1 20515 DOVER , NH 03820 (603) 742 -0404 P.O . BOX 658 September 16, 1986 WOLFEBORO . NH 03894 (603) 569-4993 NEW HAMPSH IRE TOLL FREE NUMBER 1-800-626-2690 Cornnissioner Lando Zech Nuclear Regulatory Carrnission 1717 H Street, N.W.
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| Washington, D.C. 20555
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| | |
| ==Dear Carrnissioner Zech:==
| |
| * Please find enclosed a letter from a constituent of mine who is concerned with five proposed rule changes by the NRC. I have also enclosed a news article from a New Hampshire seacoast newspaper reporting the proposed rule changes.
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| Would you, at your earliest convenience, provide me with further infonnation on these proposed rule changes. While I support nuclear power, I share the view that has been expressed among the Canmissioners thanselves that, in sane cases, the NRC has acted more as a protector of the nuclear industry than the protector of the public. In this regard, I believe that that any rule changes which would limit or otherwise reduce public input in the licensing of a nuclear power plant would be counter to Congressional intent in this matter and detrimental to the credibility of the NRC and the licensing process.
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| Thank you in advance for your cooperation and assistance in this matter *
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| * Robert C. Snith RCS:mp Enclosure
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| il obert C. Smith, MC 606 Cannon House Of£ice , Building Washington DC 20515
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| | |
| ==Dear Representative Smith:==
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| | |
| In reference to the approaching Seabrook Station licensing hearings in Por.tsmouth, 29 September, and pursuant to mine to you of 29 August, last, I am enclosing for your kind attention a copy of a letter I have sent to the Secretary of the Commission, NRC, opposing their prospective adoption of the five rule changes which would further limit intervenor po,rer.
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| Furthe r, I have declared in advance to the Commission my intention to attend thes e hearings both as a private commwiicant and to further inform myself on this subjecto In c a s e any difficulty may arise from officials at the door, I shall need from you a firman of entry, over your signature and verified by the
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| _ ommissioner of the NRC, pas sing me without question into these proceedings.
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| Given that my attendance represent s time away from my work, consequent loss of income during this period and scheduling considerations, your earliest attention in this matter will be appreciated. I am Si c,,e rel,, .
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| 1 vV lvt/v'v
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| //;}
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| John E.
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| I Loder Box 666 Rollinsford NH 0386.9 2 September 1986
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| | |
| .*secretary of the Commission
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| . U.So Nuclear Regulatory Commission Washington DC 20555 Att'n: Docketing and Service Branch To Whom it may Concern:
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| It has come to my attention that your Commission is considering the institution of five new rules of procedure which Tould further limit public participation in the licensing process of nuclear poYer plants intending to commence operations.
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| I have studi~*d , Yhat is . reported to* me of these rules, and if .t he information about them is accurate as described in the nelrspaper article whose photocopy I enclose and make part of this letter, then hereby formally I register protest over these changes. They represent nothing less than an impemissible, prejudicial abridgement of public right of. unrestricted access to, comment_
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| upon and influence in such proceedings, whose outcome and aftereffect a.re the
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| * . public concern
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| * and the public burden to bear.
| |
| It is enough t _h at Te ~ave had to endure the historic. tort in the _public right to due process of advice and consent, represented by the very construction of' this Seabrook Station now in question, both without our consent and against our will, about which licensing procedures are to be held. Now it seems your.
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| Commission would exhibit the temerity to attempt to strip us of our right as the public, and your employers, to bypass our judgement altogether upon whether we consider this plant safe enough to tolerate in our presence, economical enough for us to afford, and conson~t . with our interests in the planning of our future energy requirements, all three of Tnich considerations we feei ourselves better equipped to judge than yourselves.
| |
| I have already written to my Representative in the Congress, Robert C. Smith, in whose District Seabrook Station lies, reporting and describing these changes, and instructing him to direct you to desisL from any such ruling, a.mounting to a violation of public right of access to and voice in any such discussions OL
| |
| * public catte~s. I .have celled for his inquiry into hoT and by ~hem this shameful nonsense began.
| |
| * We already lmov out here that the NRC . are the express underlings of the nuclear industry. For example, Commissioner James K. Asselstine is reported in one newspaper to have said, "I believe that in some cases, the ~"RC he.s o.cted more as the protector of the nuclear industry than the protector of the publi~'o (Documentation sent at your request). ~ot one step of progr:.ess made by this industry since 1942 has been possible without assistance of this government, and never once after due solicitation of public advice and consent. It has its roots in government mandate, takes its nourishment from ac~s of a Congress unsubmissive to the inter.ests we elec~ it to represent, and would achieve its full flo,rer in a nation cleared of public po1rer to regulate or stop ito We face therefore a limitless threat to our survival from an indusLry now and forever incapable of proving to us that its fuel and the methods of handling and disposing of it can be made safe enough to be acceptable in our midst, on our planet o.nd in the presence of the, genet.ic codes ,re intend "to pass along intact to our descendants.
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| | |
| / '
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| Your Commission is charged rith th~ responsibility which we the public hav~
| |
| given you, and at handsome pay, an4 to carry out the directives we require t.o protect us from danger. Hard experience has taught us that the nuclear industry represents, our greatest threat of danger todo.y. We a.re watching, therefore every step you take to do thiso When Ye ~tispect that you are failing, then we must step in on our o~ a~counts~ Therefore in the matter at band, any attempt. your Commission may make to limit our aQ6~ss to, or our contribution in the~e coming licensing hearings will be construe!] by us as malfeasance, and will become subject to full weight of legn.l prol!eedings.*
| |
| I shall attend these bearings. Therq, I shall demand entrance and the right to be seated, -where I shall l istf:n to !lll that is said. I shall be subject to no effort toward my removal, since yout Commission will see to it that I shall have
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| £ull right to enter.
| |
| If I decide that I have something t,, say on the subject then, according to the rules of procedure in vhich I shall have full right to do it, I shall do so.
| |
| * I em chargin_g you _with the defenso 1,f my right to be there and to speak.
| |
| We have indulged these machination~ of a preferred industry Tith the collusion of the government -for *1ong enougho 'that PSNH now faces . bankruptcy they are crying like babies for the consequet,ces of their massive misjudgements about nuclear generation in *past planning, and they will go to any lengths to extricate themselves from downfall, including rule changes in licensing procedures, 1:l~-
| |
| .. radius reductions, rate-hike plans ttnd all the other squalid measures they would
| |
| *have the government counten ance. Th~ costs they bemoan represent the hard-"on safety features at Seabrook Stat_ion to make it ev.e n as safe as it is., though it
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| .remains st.ill unacceptably risky t.o license.
| |
| Acceptance of these five rule changes will commence our steps to disqualify your Commission from validity as a servwit 0£ the public safety. I am Sincerely,
| |
| * John E. Loder Box 666 Rollins£ord NB 03869 30 August 1986
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| .Encl: 3
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| | |
| *-:* .-*.r . ---- ---
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| \
| |
| by Steve Haberman the n1..*d1iar power plant are tossing around the licensing* process. First, idea of decreasing the KENS INGTON
| |
| * Over t~e the Commission decided, Emergenc f" Plann_lng past several weeks the *in *** the *-case *,s*of - the Zone,
| |
| * essentially the media hos carried stories Shoreham Plant on long evacuation zone around a
| |
| * of the various rule Island, that it'would not nuclear pla.n t, from the cl-ionges enacted c.,r being require , ,tote or .local current 10 _miles le 2 ~iles, consideredbytheNuclear approval of off-site rnost probably in *re sponse Regulatory Commission evacuation plans as a !O Massachusetts Gov-wh ich would effectiveiy criteria for plant lice,uing. ernor Dukakis' dec ision to n_e aate oublic input into Now 1he Com;~.-s withold off-site evacu-
| |
| '4r~1/4QU3/4M&U%t!dt£S3/4 191191!!}5~'1 otion plans for that state.
| |
| ' . J Lost week, Herb Moyer, a
| |
| , ~ ei-fect Touch . *Inc. , resident of Exeter ,
| |
| advised the League of ii) Super Summer. Tanning . *. ' Towns, o coalition of New I) Hampshir_e and Massa-FABULOUS SALE! . i) chusetts towns
| |
| * and i>
| |
| '-------~
| |
| organ izations concerned
| |
| ~i) with the safety issues raised by the Seabrook il Bed No. .l plant;~ that~ the ;; NRC -.is .
| |
| * considering instituting five **
| |
| ; .:. - @rdi)
| |
| ,~ '30 visits: *$30 ~ ,
| |
| 1 new rules which would ***
| |
| further' ; lim'it -_pu .blic ,:~
| |
| participat i on* i n : the licensing process.
| |
| - The first rule change I I) ' - ~ \ 1 involves tne* filing of
| |
| ' (2 IJJJ>. the in ., ( ,') /4) contentions, issue, which
| |
| ~ 3 months: $6~i ~/ , an intervenor In the licensing process would
| |
| ~ ~ like !h(' licensing board lo
| |
| ~~ ~
| |
| rule un. Cu *re nlly on l . . . . ; intervenor nee~ onl)'
| |
| provide a list of the issues he or she wished to have
| |
| : 4) Beds No. :2 &*3.>. ,) . . , '
| |
| decided during the
| |
| -!, ; . ' _,.; ' . . ** . '::. J hearings . Under the new
| |
| - .,. .. ., . '* . ' . ' ~) rule, the intervenors must
| |
| ,~ * . r, , '.~. ':. .. * (
| |
| i ~- *:-i.: ~. i) dispute *a specific portion i) *~~ 30 Visits:_$~5 :. i) . of the license application itself , ond must list the 9~ ii: ,~ms. ,tiie,llnl.J;'' ; i1 sources and e_xpert opinions wh ich will be
| |
| , ~~ ( I )
| |
| 3*- fuonths:*$1~.- i).
| |
| * *.* , ~-. ., * * * * * * ' ' .. * *
| |
| * j rel ied upon to back up the contention . In essence,
| |
| * \ ,... ~* ; . * * * . .1:-. =~ :;t,._~:-~,:-:*; \_~-- -;:*.: I) this requires the inter-
| |
| . ,, . . -* .. . *t:-. *- n~ ,1- ,,, *..,. .- *"' .** ; venor to prove the co,e
| |
| '4)- ;_l , - ;,,,**:/_; ./ .:. }.:t-t f) l::lefore the actual hearing -
| |
| ' r)",'. *~* *- *, : '.: '* 1: ~) ond without hovi~ all the necessary documeni..
| |
| i) Open l\lon to Sat. *} The second proposed
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| ~
| |
| rule wou ld ,imit the use of supoenos ond discovery
| |
| ' (603\ 964-89.56 aga inst the NRC staff .
| |
| ' Lnf,nctte Hood f) Under the current NRC
| |
| ~1 F't>rn Crmo~ine Mull ,~ regulation, the NRC staff *
| |
| ---IQ
| |
| . I J. ~
| |
| Nurlh llum,Jt1111. ,' d l socWWWV""nr&I Ml l ~ i m£ 4(\J . £ E ~
| |
| ! '!'o !'c::c ! P.
| |
| | |
| I U.,J ;..! ) I \ ' .J * . ' * . ',,1l I i' - ' . . '. 1 , :~ l _,, . l ; .. ;1,
| |
| *om POile l years).~ Included in this indicated that o problem problem in New Hamp* sp~I perm~n , .f~ !-onfl9 '°9k p!ace1
| |
| *** cost ore welfare poy- 19al1l1 In the 1tatewlde 1hlre and to d ...elop the . the
| |
| * hearing ludo- )n The fifth ,,_,...,
| |
| * 1.4*.~1 to opp0ai~1ately
| |
| * 100. tq ~* ,,:,oo youths mentl, Incarceration COlh, unemployment lnsu;once, coUection of information . atrategiet uc-ry *:* to ,., ~ .to, * ~--o...,_.
| |
| concerning the dropout *_ ,reduce the prob!-.:;:: -,_,.;, *wltnesaes.;,i:_11\e ~ on lnter1Nf ' '"-
| |
| forbid, I l l ~ *
| |
| ,~ 'ng'' out annually .' loat r...enue due to lower problem. This WOI olao ' . [* *. would . hoYe to ltld~4!
| |
| * pady', . contention .. , I .
| |
| ,t,
| |
| * cco~ding "°* the -11"* lost ta* re"9nue ~ ...idenl in dllcunlOIII will, , * \~ ' : deac,lpfloft of the . . _ filing oppeolt of * *
| |
| * dy. , re , costihg the due to lower wogn, etc. official, ot . Winnocunnet From *p -,. I /: ,, ':' '.
| |
| * lhcit -,ould bet~ bati1 ,0.. . forth C:ench1sion1 of ~ -
| |
| x po y \' of __ Hew The New Hampshire High School iii Hampton*. .
| |
| * 1 * - :, fh*c-onunotloft,tti. the cose of conlefttioli .
| |
| *mp1hlr- by ury State Prlsoi, In Concord .iichord Walsh of the' baportytoanylkensii,g ob(edivestobeochiewed, which they ihem11l,il .
| |
| ,,erwotive c t esti- currently ho1 a population *ouii:lo-nce Deportment hearing and con
| |
| * bt lti. line af quelliont that hod not fUed. Under 11*11:
| |
| te1,mHlion10 dollona of over 700 men. Of indicated that "we forced t* jintify lt'1 would be uMd, together propoaed rult, .tii,1*
| |
| and the1e, 524 did . not haven't really done o conclu5ions and ellplain with the wltne11i11 Stocoost Anti,Poll~tion*
| |
| 1men11.* complete 12th grade. Of study (o_f the dropout why,forexomple,ltrelied "poatoulottd onawert.~ league, for txomplt, ,
| |
| , , primary re on that figure, 132 event- problem) in 10 yeon."
| |
| * ononeNRC1tudyondnot thefourthpropo1edrule would b1 *p,ewentedft0111
| |
| * ermined by the T uolly went on to 11cure The lost study done in the another In making It'* l,1wolvu Motions for contributing pertinent .
| |
| rce for student their G .E.D. diploma. A mid, 1970'1 indicated, findings . Under the Sum mo ry Di1po1lt,lon information too licenling ~**
| |
| , pping out was a etter doted Jyly 26, 1986 according to Wol,h, a proposed rule the NRC (motions for disminal of boord which pertained to .'**
| |
| , bination of academic om the prison arid 12% dropout rate at that staff would hove to be, contentiom). Currently a contention filed by
| |
| * icultie1 ond .lack of inc ded in the Task Force Khool., Walsh slated his essentially, token ot it't the pre,idirig officer at another intervenor.
| |
| *rest. Fully 65 % of the rep
| |
| * indicated that of opinion that with the word since intervenon the licensing hearing 1eh TIie Nuclear Information Ii tchool wi1hdrawol1 the 4 inmates under the advent of Spec i al could only obtain the schedule 01 to when and Re1ource Service in '.,_
| |
| ween 1979 an d 1984 age o 21, only 3 hod Education, Vocational 1ource information u$ed . Motions for Summary Wo,h inglon, D.C., views '. 1 e for these reason,. attained a high school Education
| |
| * and the by th* 1totf. Thi, would Disposition will be the proposed new rule, * *,
| |
| odd itional 17% left for diploma ior to being Alternative School, the force intervenor> to *pend accepted . The officer 01, "an attack on the role * '
| |
| -,loyment, 5% were incarcerate , dropout problem Is not 01 extra time .and effort in may bar motion,
| |
| * ol of lntervenon in license mined, 2% w'ertt The Youth O elopment severe here as in other locating NRC d_ocument1 certain times, for hearing,.* Accord.ing to vHd , 2% entered the Center (YOC) in oncord, port, o4 th.estate, but that pertinent 10 their _c ase but example, before '"* the Service, the new rulei tary, 1% got *married, indicated that of e 120 he really didn't know for not used by the staff In hearings ,tori. Under the
| |
| * accomplish thi, in three left due to illneis, 1% young1ters ir, that f ility sure. forming It', conclusions. proposed rule Motiom _lor woys--by making it harder
| |
| :i and 6% left for other os al J,Jly of this ye The most (ondemning Most intervenors ore Summary Disposition wiU to become o party to o known ond between the oge1 of 1 ,totement contained in operating under o very . be accepted Of'lytlme, licensing hearing , by ood 17, 20% have 'been e report was found In tight budget and with o .' removing from inter* Impos ing limitatio n,
| |
| * of the dropout identified 01 "knownw the
| |
| * troduction _se ct ion. It limited 1toff and this rule venon the protedion from during the hearing itself,
| |
| :,lem to New Hamp* dropoull. The YOC recap ,aid, "few 1t~ategies or would place yet another horrossing motioi,1 on th* ond by allowing motions re taxpayers i1 goes on ta slate, ioi1;01 s seem to be in burden on them in port of the Applicant far di1missol of conten*
| |
| ogering . The Tosk "However, the currently place lo retain youth in preparing and litigating which require 1uh1tontiol lions al any time .* The c~ reports that used data/ record collect* schools o get ot the their coses.
| |
| * diversion of re1ource1 Service concluded thot
| |
| >pouh may coil New ion system does not allow underlyin COUSH for The third rule change away from preparing for "The NRC appare ntly 1p1hire toxpa , en in for good identification of dropping ou w involves the use of cross* the hearings themselves. ' feels that the licensing m of $5,000,000 per dropouts and the 20% The
| |
| * Task orce is examination during Polentiolly,underthisnew process would benefit by r, per class, for each 'known' is by oil gue11e1. propaing a_ 1 tewide licensing hearings. The rule, oil the interve11on' the e Ii min a Ii on o I r of their work ing life on undereslimale .w conference to locus proposed n,le would contention, could be T,
| |
| , proaimotely 40 The Task Force study attention oi, th~ dropout requ ire parties to obtain dismiued even before a o DlJl!<' 32 PIPE PROFILES PATIO SHOPPE Nicole Oriental Rugs I'\ C l'll'i:: . .\LUii \ l ~I. FIBEHU \S~ \\ lt.il:1.11
| |
| & HESJ:\ H R\J rt 'RE Cleaning Rug Pads Appraisals Re~airs
| |
| ** END OF
| |
| * ~..
| |
| ~-
| |
| q!;~~-p ~!"-~ ?.Tra'd*lna :i.1 ' .,
| |
| v-\*: Stafri Kits * *. Home Trial ~~ SEASON SALE 1
| |
| ~ OPEN TUES. - SU N. 10 A.M.
| |
| * 5 P.M 180 Lafayette Rd. (Rte.1)
| |
| * No. Hampto11. N.H.* I\ i*: ll,~~I(;\ .\\II \I \\I f'I ITI Ur, tit II l'I H\11111 , .
| |
| 160319G4-9272 (603)772-:i323 . \\II IIH: C0\11 ',:'IITII ;; l\ .01 H 1'111* :, ~~- Ill T ,-t l'r.1111111 I\ Ill 11 ~II II.In .
| |
| Junction Rtea. 4 & 125 We Cuslotnlze for your .;; ' .. * ' ,:..,,,
| |
| 11 .. .., / *** **~ /1,,. , 11 LN Trame Clrcte, Lff, NH
| |
| * speclal needsll T11e1d1y lhrv Sunday 10-5:30 '
| |
| (603)868-7000 , , 11., n, 111111, 11 TIIC 5prtt* is ~cfy our lowest*
| |
| ~ SCOOlB 10 bq:in witli. And for i lim-j tinlC, we*~ lowering~ pri!:e ~ more. The Sclssorsmllh -_.........---- 964-9902 Why? TIIC ~OIY ~ iuthortll'd us l..orull'J in E,u*hu111,tr 200. l..afuyc*lle RJ., l\o. llamplcm offer you h~ discounts. But this dCil ii
| |
| ~ liniittd time only, ~ hurry in.
| |
| ~ Sprtt. 11's ~)'S bttn easy 10 TIRED OF DRY, FRIZZY,
| |
| ~-And now. it's just u e~ 10 .ilford.
| |
| . CHLORINE HAIR ?
| |
| :IONDA I
| |
| .. ;. SCRUpl.ES .
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| ~
| |
| 5ummer 5aYe ! SCRUPLES ~*
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| HAIR CLEARIFIE~
| |
| . SHAMPOO '
| |
| I/ $9.95:~:
| |
| | |
| *,,1/m or If~* i~*OUI of
| |
| ' From -POile 18 Comments may bt ..nt to done Secretary of the Commi1-iirams.lhat were
| |
| ~ide,and _wt"go ~*1 anJ
| |
| * 1011.ini; f..(1 lo. J,,f,.nJ, lntervenora ...
| |
| * The Nuclear REgulatory 1 i o n , U.. S . H u cl* a r Regulatory Coinmiuion,
| |
| ,111 lo prult"l'I the suul Comminion i1 accepting *Washi.ngion, D.C. 20SS5.,
| |
| public comment on these .1.ttn: Docketing and proposed changes until S*!"'ic* Branch.
| |
| September 2, 1986.
| |
| FULL UOUOR LICENSE OPEN The .. me of Mah Jong la believed to have been Invented
| |
| {EAR ROUND In China about 2500 yean ego.
| |
| ~A
| |
| \ T IN,,,,,,.4, miclwl e.amwti OWNE" OR
| |
| ~Oln' l"~
| |
| <.'. lil/\-:r
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| ~
| |
| 'R ,*. c w,k~~ ~ £_l:i£>4U
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| ~ { " 3*f 18 WOODKNOLL Dlt.
| |
| NOIITH HAMll'TON lKTIOU~t>jf 5t.~\)1C£,
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| N,W HAMPSHIRE 03862 603-964 -6966 AFT£R 8PM 11'. IU. *I.\':
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| y.\p~e Gl f TS & APPAREL lq ,
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| t,
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| * *
| |
| * SALE * *
| |
| * SALE * *
| |
| * 10 LOBSTERS 9,95 !Qw'su~~'~,'iie 6-4~
| |
| S.nie. Citiaen Oi.cevnt II t~
| |
| NJ Boardwalk 6oulh JL'V STEAK Open Doily through October 63 Ocoan Blvd. ~d 5,95 9 AM-10 PM MC/ VISA/ AMEX Hampton Beach 826-2175 p10 oie iLoli,
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| *1~
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| L~!
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| f:eo, Wefccme the newe.rt member of our stylin,z team!
| |
| * Seacoa~I \ 'illn~t' (Nc*lll lo l\lcl>onalJ'11)
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| Rte. t, North llamplon, NII 961--9:i57
| |
| *Ye Olde Allen Farm :,
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| ORC~ARO*CIDERMlll*FARMSTANO !
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| A 11'1 Pick Your Own . I;,,,. ,4 u,,,,,,,;,, f JD Apple Tlmell
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| , *.. ,.. l'irkini: **r,*, h. Firm & Jui,*, 'i :-
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| C:IC\\DSTt:I'\ .\l'l'l.t:S!! .
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| l'lO "d111o~l1 .-\ppli*s ~;*''
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| .'it11rti11:: l.11/11,r /Ja r I/ 1*l'k1*111/ H
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| .'il //1 l'.Jl-.'l.l. 1-1/IJ.\/: 1-1.1//:/::\f,' & /Jl/1/*. /J 1-'/.IJII U/S .. f\ Ill I/ UJ/ . \ '/10' .~*tOU/:'.'.' J PAIR ,.3,,
| |
| RI, 101, Greenland, NH ,,
| |
| .\SH ONLY (603)436-2861 *2:
| |
| ~
| |
| 11 *. rru, nl/1 /'Ill-.' SIii/./\(; . 1/'l'I,/:' SI(;\
| |
| :VERY OPEN 8 M1-5 PM 7 'DAYS DAY
| |
| 'RICE! 1
| |
| .I
| |
| :i
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| , .,i_
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| ~.. /. (
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| | |
| .mn~PR- ~ ~
| |
| UNITED ST~ ~/ Fi ~ '4"9~5"" FF I 2-NUCLEAR REGULATORY COMMISSION ~ - - -- -
| |
| f' DO(;KET ED WASHINGTON, D. C. 20555 USNHC SE.r* 2 B 198E
| |
| .86 OCT -6 Al 1 :09 OFF ICE Or St. *,t. ~,;!f(
| |
| The Honorabl~ -Willfam L. Clay DOC KET ING~< 3fR'-' ICt BRA NC '
| |
| United States Housi of Representatives Washington, D.C. 20515
| |
| | |
| ==Dear Congressman Clay:==
| |
| | |
| Than k you for your letter of September 10, 1986 forwarding the enclosed views of your constituent, Lewis C. Green, on the Commission's proposed revisions to its Rules of Practice in 10 CFR Part 2. The Commission is particularl y interested 1n receiving public comments on these proposals and has accordingly extended the comment period to October 17, 1986. At the close of the comment period, the Office of the General Counsel will analyze the comments received and recommend further action to the Commission. We will consider Mr. Green's views, together with those of other members of the public, 1n formulating that recorrmendation .
| |
| I appreci ate your concern in this matter. Please let me know 1f I can be of further assistance.
| |
| Sincerely, lJJ .
| |
| William C. Parler General Counsel
| |
| * Enclosure :
| |
| Ltr fm Lewis C. Green dtd 8/26/86
| |
| | |
| t)l1t.~t1 r G REEN. H EN N , NG s & HEN R v f\ ~~ CS3 314 NORTH 8R0"0W"Y - SUITE 18.30 ST. LOUIS, Mo . e3102 OV[IIALL. JU010N*l877
| |
| .JOMN R . GRCCN,D JUDSON* OIIUN*1800 L[WIS C . GRt[N JUOIOH . OllaH . HtHIIIY. 111£Nlllllll *181 011£[1< . H[NHIHGI , H[NIIIY. AIIINOL0*1815 c"aLE "001u:aa
| |
| .JUOGl'ICCN August 26, 1986
| |
| * The Honorable William Clay House Office Building Washington, D. C. 20515 Re: Nuclear Regulatory Commission Rule Changes
| |
| | |
| ==Dear Bill:==
| |
| | |
| Enclosed is a copy of comments I have submitted to the Nuclear Regulatory Commission respecting p*r oposed rule changes.
| |
| These rule changes vrnuld make a sham of the public hearing, and effectively deny public participation, to the endangerment of the public.
| |
| I hope that you can use your influence to assure that these ru l e changes are rejected *
| |
| * With best wishes I remain LCG:ggl /
| |
| r Enclosure
| |
| | |
| r GREEN. HENNINGS & HENRY 31<4 NORTH 8ROA0WAY
| |
| * SUIT£ 1830 ST. LOUIS. Mo. e3f02 OVtllALL 6 JUDI0 .. *1877
| |
| .JOMN l'I . Gl'l[CN, II JUDIO" .. Glltt .. -,.oo LCWIS C . GRttN JUDSO .. . GIIO:"* M[ .. IIY 6 lltMMtlll*l8H Glltt .. . Mt .... 1.. GS , MtNIIY 6 AII .. OLD* lalS August 26, 1986 CAaLE A0011ESS JIJ0G,.EEN Secretary of the Commission U. S. Nuclear Regulatory Commission Washington, D. C. 20555
| |
| * Attention: Docketing and Service Branch
| |
| | |
| ==Dear Sir:==
| |
| | |
| Re: Proposed Rules to Limit Public Participation in Licensing Proceedings for Nuclear Power Plants These proposed changes would make a mockery of the hearing process.
| |
| : 1. Section 2. 714. This change would . force the interv.enor to spel 1 out al 1 the details of its case before it has obtained the reports, opinions, and other documents which are to be chal-lenged, and before it has had any discovery. This is so obviously nonsensical that it is probably a denial of due process of law.
| |
| There is nothing like this anywhere in the judicial process, or anywhere in our legal traditions *
| |
| * 2. Section 2.720. The existing rules insulate the NRC staff from discovery far more than is desirable. If the public is going to participate effectively, the public must have the right to co mpel the staff to explain and justify its position.
| |
| Only after that is done can the explanation and justification be effectively challenged or discredited. The proposed rule would eli8inate the ability of the public to require the staff to come forth with its explanation and justification. The proposed rule would thus make the hearing a pseudo-hearing, a Hamlet without~-
| |
| Hamlet.
| |
| * The
| |
| * propos~~ rule squarely co~flicts in principle with the unbroken line of decisions of the Supreme Court which require that an administrative ruling be clearly supported by its ration-ale.
| |
| : 3. Section 2.743. Cross-examination is the essence of any meaningful hearing. It should be available at all times, with respect to eve *r y witness. The proposed rule would make cross-examination discretionary with the hearing judge. and would re-quire that any application for permission to cross-examine be
| |
| | |
| I
| |
| * GREEN, HENNINGS & HENRY Au gust 26, 1986 Page 2 accompanied by details which could not possibly be furnished. It is nothing more than a poorly disguised effort to protect the staff and the utility witnesses from any meaningful probing of their testimony * .
| |
| : 4. Section 2.749. The orderly process of any major liti-gation requires a sub-stantial period immediately before trial for preparation, without being deluged with motions and briefs filed by the parties with unlimited resources. This proposal would permit the utilities to bury the intervenors with a paper bliz-zard which would prevent the intervenors from preparing for trial.
| |
| Further, in al lowing motions for summary disposition before or during discovery, the proposal fails to make explicit the proposition that such motions should not be granted before the responding party has had an adequate opportunity for discovery.
| |
| * 5. Often an intervenor will not place in contention an issue which is being pressed by another party. Hpwever, if the other party thereafter fails to pursue the matter, the interested intervenor should have every right to pursue the matter further.
| |
| There can be no prejudice to any party in this procedure. The proposed rule appears to be nothing more than another piece of the pattern to preclude effective public participation.
| |
| * Summary These proposed rules are a transparent effort to deny effec-tive public participation. They would make a mockery of the hearing process. In so doing, they would further endanger the
| |
| * public safety. The proposed rules should be rejected
| |
| * Very _truly, ,,,,YOU~-~ ,
| |
| Green LCG:ggl
| |
| | |
| DOCK[ ft['
| |
| Docketing & Service Branch USNRC Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 "86 OCT -6 P7 :34 DOCKET# 50-443/50-4440L OFF ICE Of ' L L ! AKY DOCKETI NG & StR VICf:
| |
| BRAN CH
| |
| | |
| ==Dear Sir:==
| |
| | |
| This letter concerns the proposed rule changes in licensing procedures for nuclear power plants. It is clear that these proposed changes are designed to get the public out of the licensing process _and to speed up licensing of nuclear power plants in the United States, this democratic country. We are aware that these proposals would:
| |
| * 1.
| |
| 2.
| |
| 3.
| |
| 4.
| |
| Raise admissions criteria for contentions.
| |
| Restrict use of discovery against NRC staff.
| |
| Restrict use of cross-examination during hearings.
| |
| Allow Summary Disposition of contentions anytime during the licensing proceedings.
| |
| : 5. Limit the scope of issues that could be appealed.
| |
| All these proposals minimize the role and effect of i ntervenors during licensing proceedings.
| |
| Raising admissions criteria means the intervenor basically must prove his case in advance. As the rules are now, intervenors can hardly get NRC staff reports; comments on license applications are generally not available.
| |
| This proposal would keep safety information from being brought forward to protect the public.
| |
| By restricting _the use of discovery against the NRC staff, . the public -
| |
| would have to take the NRC - at its word. Under current law, the NRC staff --
| |
| can be forced to justify its conclusions .
| |
| Restricting the use of cross-e x amination means that intervenors would have to obtain special permission from the hearing judge in order to cross-examine witnesses. Face to face confrontation is the people's tool for getting at facts behind an applicant's claims. _
| |
| Allowing Summary Disposition at anytime is a blatant disregard for public -
| |
| input. Potentially,all of an intervenors contentions could be dismissed even before any hearing took ~place.
| |
| Finally, limiting the scope of issues that could be appealed prevents m':-
| |
| ~
| |
| intervenors with interests in another party's contentions from contributing to t h e h earing process.
| |
| l'-
| |
| c.,
| |
| Intervenors are voices of concern for public sa fe ty, a ma tter which 0 .
| |
| the NRC* continues to disregard.
| |
| We oppose these rule changes for the harm they do to public participation.
| |
| Does the NRC wish to be autonomous? If so, they will surely be held accountable when safety measures prove insufficient in American nuclear power plants.
| |
| * Yours truly, lfrt4 ~ ~~,
| |
| HOLLY BEARDSLEY, M.S.W ., L.I.C.S.W .
| |
| 8 CHERRY ST.
| |
| NEWBURYPORT, MA. 01950
| |
| | |
| J llli MJttfAll RfGUI.AfOliY C6MM~aR° E>OCKET G & SERVICE SE°CTION OFFICE OF THE SECRET RY OF THE COMMISSION Document Stati~tics Pesfmarfc Date Copies Rece1 ved I Add'I Copies Reproduced -;;;;;,- - --
| |
| Special Oistributi()n
| |
| | |
| OOCkET R SI Fi ([if)
| |
| DO LK[J ((
| |
| ~* ~
| |
| Docketing & Service Branch
| |
| ~'iNPC Secretary of the Commission
| |
| ,I
| |
| ,171/J c}J'fYJ U.S. Nuclear Regulatory Commission Washington, D.C. 20555 .86 OCT -6 P7 :1 /:; J2, DOCKETIF 50-443/50-44401 FFICE U' :~t.-t-* ,,._. ,, y 1:
| |
| DOCKET ING sr-* v1C f BR ANCH .
| |
| | |
| ==Dear.Sir:==
| |
| | |
| This letter concerns the proposed rule changes in licensing procedures for nuclear power plants. It is clear that these proposed ch ange s are designed to get the public out of the licensing process and to speed up licensing of nuclear power plants in the United States, this democratic co untry. We are aware that these proposals would:
| |
| * 1.
| |
| 2.
| |
| 3.
| |
| 4.
| |
| Raise admissions criteria for contentions.
| |
| Restrict use of discovery against NRC staff.
| |
| Restrict use of cross-examination during hearings.
| |
| Allow Summary Disposition of contentions anytime during the licensing proceedings.
| |
| : 5. Limit the scope of issues that could be appealed.
| |
| All these proposals minimize the role and effec t of intervenors during licensing proceedings.
| |
| Raising admissions criteria means the intervenor basically must prove his case in advance. As the rules are now, intervenors_ can hardly get NRC
| |
| * staff reports; cormnents on license applications are ge nerally not available.
| |
| This proposal would keep safety information from being brought forward *to protect *the pub tic.
| |
| By restricting the use of discovery against the NRC staff, the . public .
| |
| would have to take the NRC at its word. Under *current law;* the NRC staff -*.-**
| |
| * _can be forced to justify its conclusions.
| |
| Restricting the use of cross-e xa mination means that intervenors would have to obtain special permi ssion from the hearing judg*e in order to cross- . -: .
| |
| examine witnesses. Face to face confrontation is the people's
| |
| * tool for getting at facts behind an applicant's claims.
| |
| Allowing Summary Disposition at anytime is a blatant disregard for public input. Potentially,all of an intervenors contentions could be d i smissed even before any hearing took place.
| |
| Finally, limiting the scope of issues that could be appealed prevents intervenors with interests in another party's contentions from contributing to the hearing process.
| |
| Intervenors are voices of concern for public safety, a matter which the NRC continues to disregard.
| |
| We oppose these rule c~anges for the harm they do to public participation.
| |
| Does the NRC wish to be autonomous? If so, they will surely be held accountable when safety measures prove insufficient in American nuclear power plants.
| |
| * Yours truly,
| |
| ~t?-~~6
| |
| ~ne-1'o.. /t_L i!tJyo'
| |
| .t\cknowtedged by card * *OCT 7 l98i
| |
| * * * ** * * * * * * * * *#"W?'IIIII'
| |
| | |
| REGUt l Y COM ISStO)J
| |
| & SERVI CE S CT OF THE SEC~ET RY HE COMMISSION vn nt St s i cs
| |
| /tJ j__z...
| |
| /
| |
| r-,*-luc d ;/
| |
| on
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| | |
| @J Docketing & Service Branch DOCKE!E C Secretary of the Commission US NHC U.S. Nuclear Regulatory Commission Washington, D.C. 20555 '86 OCT -3 P3 :50 DOCKET# 50-443/50-4440L OFF IC E !.If S[,,r.~ 1AR 't DOC KETIN G&. SER VICF:
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| BRANCH
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| ==Dear Sir:==
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| | |
| This letter concerns the proposed rule changes in licensing procedures for nuclear power plants. It is clear that these proposed changes are designed to get the public out of the licensing process .and to speed up licensing of nuclear power plants in the United States, this democratic country. We are aware that these proposals would:
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| * 1.
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| 2.
| |
| 3.
| |
| 4.
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| Raise admissions criteria for contentions.
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| Restrict use of discovery against NRC staff.
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| Restrict use of cross-examination during hearings.
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| Allow Summary Disposition of contentions anytime during the licensing proceedings.
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| : 5. Limit the scope of issues that could be appealed.
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| All these proposals minimize the role and effect of intervenors during licensing proceedings.
| |
| Raising admissions criteria means the intervenor basically must prove his case in advance. As the rules are now, intervenors can hardly get NRC ..
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| staff reports; comments on license applications are generally not available.
| |
| This proposal would keep safety information from being brought forward to protect the public.
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| By restricting the use of discovery a gainst the NRC staff, the public would have to take the NRC at its word. Under current
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| * law,' the NRC staff
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| * can be forced to justify its conclusions.
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| Restricting the use of cross-ex amination means that intervenors would have to obtain special permission from the hearing judge in order to cross-examine witnesses. Face to face confrontation is the people's tool for getting at facts behind an applicant's claims . .
| |
| Allowing Summary Disposition at anytime is a blatant disre gard for public input. Potentially,all of an intervenors contentions could be dismissed even before any hearing took place. _..
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| Fi nally, limiting the s~ope of issues that could be appealed prevents -
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| intervenors with interests in another party's contentions from contributing to the hearing process.
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| Intervenors are voices of concern for public safety, a matter which .*
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| the NRC* continues to *disregard.
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| We oppose these rule changes for the harm they do to public participation.
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| Does the NRC wish to be autonomous? If so, they will surely be held accountable when safety measures prove insufficient in American nuclear power plants.
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| * Yours truly,
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| | |
| , P<<JC.EA~ f!(~I ,,
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| DOCKET"'-'~
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| OFF' -
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| 0'
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| .. iMISSION
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| -roN
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| (
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| f '
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| fm~ k (
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| j 1' <
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| c ial
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| | |
| oocm NUMIIR IROPAMD 1W PR' -tZ 1771 (51 F~ ~4~'1s) cft~
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| ENVIRONMENTAL DEFENSfu~f fiND
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| '86 OCT -3 A11 :49 1405 Arapahoe Avenue Boulder, CO 80302 (303) 440-4901 ' \JI'.\(
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| .*:u.
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| Samuel S. Chilk Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Re: Proposed Amendments to 10 C.F.R. Part 2, Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process; Published July 3, 1986 at 51 Fed. Reg 24365.
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| | |
| ==Dear Sir:==
| |
| | |
| In response to the above-referenced proposed amendments, the Environmental Defense Fund (EDF) has the following specific connnents on certain of the proposals.
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| : 1. 10 C.F.R . 2.714, Intervention.
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| The Commission proposes changes in section 2.714(b) which are designed to sharpen the issues in dispute at a
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| * National Headquarters hearing; EDF is not opposed to such streamlining.
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| in this proposal, the Commission raises the threshold for the admission of an intervenor's contentions at this However, 444 Park Avenue South earliest stage of the process far beyond what is necessary New York, NY 10016 (2 12) 686-4191 to accomplish its stated purpose. Interested parties with 1525 18th Street, NW Washington, DC 20036 genuine contentions will be excluded from participation by (202) 387-3500 the burdensome requirements of section 2.714(b)(2)(i) 2606 Dwight Way Berkeley, CA 94 704 (415) 548-8906 through (iii), as proposed. No potential intervenor can 11 South 12th Street reasonably be expected to expend the time, effort and Richmond, VA23219 (804) 780-1 297 expense involved in developing the specific and concise 100' o Recycled Paper OCT 3 1986 Acknowledged by card ..*******,.-*** ____,...
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| | |
| ~I, HUO.U~ ~t~Ul toR MMISSIOH DOCKETING r TIQN OFF !' " , * '{
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| 0 14
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| ') C
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| ,ostmar1 -
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| Cop10' A,J ,, I
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| | |
| statements, explanations and information requested in these subsections prior to discovery, let alone prior to being granted party status. The particular elements of paragraphs (i) through (iii) are repetitive and unnecessary. The general description of the contentions intended to be raised in the proceeding, as set forth in paragraph (i), should be a sufficient threshold.
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| The Commission's proposed threshold would act as a closed door despite the fact that a potential intervenor could squeeze through the transom by filing
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| * what amounts to a completed brief.
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| EDF also objects to the proposed requirement in section 2.714(d)(2)(ii) permitting the Commission to reject a petition based upon the Commission's preliminary determination that it is unlikely that an intervenor will prove facts to support its contentions at the hearing. Such a rejection would be extremely unfair to an intervenor at this stage in the process, and is without parallel elsewhere in administrative or judicial prodecure.
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| Paragraph (iv) is improperly included in Section 2.714(d)(2)(iv) given that, pursuant to subsection (b)(2) of Section 2.714, contentions may state
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| * solely an issue of law. The proposed paragraph (d)(2)(iv), which appears to provide that contentions raising pure issues of law are subject to refusal by the Commission, is unsupportable. EDF has no objection to purely legal contentions being handled through the Commission's summary proceedings, but there is no rationale for those issues to be rejected, especially given the language in paragraph (b)(2). The Commission should clarify the procedures for handling legal issues.
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| Generally, EDF believes that the proposed additions to rules concerning interventions discriminate unfairly against intervenors, particularly public interest petitioners. Parties develop the details of their cases through discovery which occurs after all parties are admitted as such. Thus these regulations would severely limit the ability of concerned and interested people to intervene and would result in improper and illegal decision- making.
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| These requirements cannot be rationally tied to the purposes for which they were proposed without unduly burdening a class of legitimately interested persons and the Commission has not, in fact, offered any reason why potential intervenors' claims are treated so differently from those of the staff and
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| * applicant. Without a rational basis, these proposals deny intervenors equal protection under t he law
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| : 2. 10 C.F.R. 2.743, Evidence.
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| EDF finds the proposed modifications to this section particulary offensive and patently illegal. The Commission seeks to deny the fundamental right to cross-examine witnesses in its adjudicatory hearings. This denial is contrary to the very purpose of adversarial proceedings. Our legal system rests on the tenet that disputed facts are best resolved through the clarifying framework of cross- examination which promotes inquiry into the
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| * basis, considerations and assumptions pertinent to any decision- making.
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| right of parties to cross- examine witnesses is a fundamental aspect of due process which would be defeated by this section.
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| The In addition, this proposal is unfairly burdensome to individual and public interest petitioners who lack the resources which other parties more likely possess. The Commission unreasonably expects that parties will uniformly be able to have their entire cross- examination developed in advance of the hearing, but cross-examination is by its very nature and purpose a dynamic activity. If one line of inquiry does not el ic it the response sought, most examiner s wi ll try another tack.
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| The ability to respond to a live witness' first responses cannot be removed from the process without rendering the right irretrievably crippled; paragraph (b)(2)(iii) is therefore antithetical to effective cross-examination.
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| Similarly, in multi-party proceedings in particular, issues and objectives may change through the cross-examination process' very progression. Thus, paragraphs (b)(2)(i) and (ii) are equally problematic. This proposal will deprive all participants, but especially resource-limited public and individual parties, of the benefit of effective cross-examination, thereby severely affecting the quality of decision-making and the openness of the process. The Commission's presiding officers and adjudicatory boards are vested with the authority to cut off undirected, meandering, argumentative and irrelevant cross-examination. EDF would urge the Commission to abandon the idea of "cross-examination plans" and rely instead on the common sense and abilities of their officers and boards to control the hearings over which they preside. Not only are the cross-examination plans yet another set of papers to clutter the record that the officers and boards must read and approve before the hearing, but they often could not be designed in advance to obtain
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| * a full and true disclosure of the facts.
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| : 3. 10 C.F.R. 2.754(c), Proposed Findings and Conclusions.
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| EDF is strongly opposed to the last sentence of this proposed section which would permit an intervenor only to challenge issues which that intervenor placed in controversy. This proposal is contrary to the Commission's goal of streamlining. Were this sentence adopted, the resulting regulation would needlessly magnify the number of issues each intervenor would raise, because the failure to raise a potential issue would preclude later review of that point. If intervenors believe that they must raise every conceivable issue prior to the hearing, the Commission will be swamped by sheer volume.
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| Perhaps even more disturbing is that this rule affects intervenors but neither applicants nor Commission staff. As such, this proposal again highlights the senseless discrimination these rules work against intervenors.
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| In complex technical proceedings, it is important that intervenors be allowed to pool their expertise and allocate responsibility. This coordination reduces redundancy in the process as well as the Commission's work load, but could not continue under the proposed changes .
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| * The Commission's rationale for this remarkable limitation is that, "[i]n practice, however, adjudicatory boards have not generally examined an intervenor's filings to determine whether the intervenor possesses the requisite interest with regard to a particular issue, as set forth in the petition to intervene." 51 Fed. Reg. at 24368, col. 1. That the adjudicatory boards have not had the resources or inclination to perform their duties is simply not a reason to punish intervenors. There are likely to be situations where intervenors raise and prove contentions without the Commission staff's participation; yet, the staff is not limited under this subsection, by virtue
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| * of their "overall interest in the proceeding to insure that public health and safety and environmental values are protected." 51 Fed. Reg. at 24368, col 2.
| |
| EDF submits that the above- quoted description applies equally to many intervenors and that intervenors should not be precluded from participation because of a broad interest. This section is a blatant example of a discriminatory, burdensome rule which lacks any valid or rational basis for its distinction. As such it may work a denial of equal protection and is at best illegal and improper.
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| : 4. 10 C.F.R. 2.762(d)(l), Appeals.
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| EDF objects equally strenuously to the language of this section which would limit an intervenor-appellant's brief to only those issues which that party placed in controversy. This proposal is illegal, unfair, and unduly burdensome for intervening parties. Again, the restriction affects intervenors only; applicants and Commission staff are not so bound. The Commission offers no logical explanation or basis for the distinction, the obvious purpose of which is to narrow the number and scope of appeals. It is inappropriate for an agency like the Commission which deals in such a complex and hazardous field to so severely limit serious intervenors .
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| * 5. General Comments.
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| EDF notes that the apparent purpose of these proposed changes is to streamline an extremely involved technical process. Most of the changes directly affect the ability of the interested public to participate in the process. As regular attendees of these proceedings, we sympathize with the Commission's desire to simplify the process and eliminate the innane, irreverant and irrelevant participants. But this limitation should not come at the cost of reducing the quality of the decision, one of the main purposes for public involvement. If the NRC-proposed rules are found to prohibit
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| * participation by bonafide concerned intervenors, then the proposals must be withdrawn. Serious involvement in the Commission's adjudicatory proceedings is expensive, time consuming, and complex. Meaningful participation poses a significant strain on any intervenor, taxing resources and patience. The applicant is typically represented by a battery of lawyers and supported by a sympathetic Commission. Were these obstacles not unfair enough, the Commission now seeks to impose additional burdens on intervenors as a class.
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| These restrictions bear no relationship to the Comrnissions's purpose and purposefully discriminate against the meaningful and effective presentation of the public's view, interest and concern in the matter. As such, EDF respectfully requests that the Commission withdraw these proposals and instead adopt the rule changes proposed by Commissioner Asselstine.
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| : 6. Commissioner Asselstine's Proposals.
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| Generally, EDF supports the proposals of Commissioner Asselstine as far more equitable, just and fair than those of the Commission. Commissioner Asselstine's proposals lack the discriminatory effects on intervenors while streamlining the process increasing its efficiency .
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| * EDF's only critical comment on these proposals concerns 10 C.F.R.
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| 2.75l(a). This new section would place great discretion in the hands of the presiding officer. It would allow the premature dismissal of intervenors' contentions simply by the presiding officer's determination that the factual support appears, at this prehearing stage, to be inadequate.
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| We appreciate the opportunity to comment on the Commission's proposals and hope that we have provided a helpful perspective for the Commission as it revises the proposals .
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| * Si ncerely, Melinda Kassen Staff Attorney
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| ~~lo¥ Volunteer Attorney Docketing & Service Branch DOlKETH*
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| U'3 NH C Secretary of the Connnission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 .86 DOCKET# 50-443/50-44401 OFF ICE OF ::.t -*' t /H~Y B0C KETING &. ::iFf<Vlf: f.
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| BRAN Cf-i
| |
| | |
| ==Dear Sir:==
| |
| | |
| This letter concerns the proposed rule changes in licensing procedures for nuclear power plants. It is clear that these proposed changes are designed to get the public out of the licensing process and to speed up licensing of nuclear power plants in the United States, th~s democratic country. We are aware that these proposals would:
| |
| * 1.
| |
| 2.
| |
| 3.
| |
| 4.
| |
| Raise admissions criteria for contentions.
| |
| Restrict use of discovery against NRG staff.
| |
| Restrict use of cross-examination during hearings.
| |
| Allow Summary Disposition of contentions anytime during the licensing proceeding s.
| |
| : 5. Limit the scope of issues that could be appealed.
| |
| All these proposals minimize the role and effect of intervenors during licensing proceedings.
| |
| Raising admissions criteria means the intervenor basically must prove his case in advance. As the rules are now, intervenors can hardly get NRG staff reports; comments on license applications are generally not available.
| |
| This proposal would keep safety information from being brought forward to protect the public.
| |
| By restricting the use of discovery - against the NRG staff, the public would have to take the NRG at its word. Under current law; the . NRG staff
| |
| * can be forced to justify its conclusions.
| |
| Restricting the use of cross-examination means that inte~venors would have to obtain special permission from the hearing judge i ntr"order to cross-examine witnesses. Face to face confrontation is the people's tool for get t ing at facts behind an applicant's claims.
| |
| Allowing Summary Disposition at anytime is a blatant disregard for public
| |
| -~
| |
| iriput. Potentially,all of an intervenors contentions could be dismissed even before any hearing took place.
| |
| Finally, limiting the scope of issues that could be appealed prevents intervenors with interests in another party's contentions from contributing to the hearing process.
| |
| Intervenors are voices of co~cern for public safety, a matter which the NRG continues to disregard.
| |
| We oppose these rule changes
| |
| * for the harm they do to public participation.
| |
| Does the NRG wish to be autonomous? If so, they will surely be held accountable when safety measures prove insufficient in American ouclear power plants.
| |
| * Yours truly,
| |
| ~~m~
| |
| 7 / tyn-th-t ~ ;fCl/YU.--,
| |
| QCT s 1986 Ii A-A I /I L P " ~ --
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| I u.vl.U rn 0..-
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| CJ 01 q; 3 A.cknowte<ked by card . .* ********.*,** ..-.-....
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| | |
| VtfA REGULATORY C(?MMISSldll OCKETING & SERVi - c Y ~ 1 OFF *c 'Y - * 'lY I
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| | |
| )
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| DOC.KET Er USNHC Docketing & Service Branch Secretary of the Commission '86 OCT -3 P2 :06 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 OFF ICE iJ* .:.t*, :-. A,JY DOCKET# 50-443/50-44401 0OC KETIN G &. SF tWIC f.
| |
| BRANC~
| |
| | |
| ==Dear Sir:==
| |
| | |
| This letter concerns the proposed rule changes in licensing procedures for nuclear power plants. It is clear that these proposed changes are designed to get the public out of the licensing process .and to speed up licensing of nuclear power plants in the United States, this democratic country. We are aware that these proposals would:
| |
| : 1. Raise admissions criteria for contentions.
| |
| : 2. Restrict use of discovery against NRC staff.
| |
| : 3. Restrict use of cross-examination during hearings.
| |
| : 4. Allow Summary Disposition of contentions anytime during the licensing proceedings.
| |
| : 5. Limit the scope of issues that could be appealed.
| |
| All these proposals minimize the role and effect of intervenors during licensing proceedings.
| |
| Raising admissions criteria means the intervenor basically must prove his case in advance. As the rules are now, intervenors can hardly get NRC staff reports; comments on license applications are generally not available.
| |
| This proposal would keep safety information from being brought forward to protect *the public .
| |
| By restricting the use of discovery against the NRC staff, the public _ .
| |
| would have to take the NRC at its word. Under current law, the NRC staff can be forced to justify its conclusions.
| |
| Restricting the use of cross-examination means - that intervenors would have to obtain special permission from the hearing judge in order to cross-examine witnesses. Face to face confrontation is the people's tool _for getting at facts behind an applicant's claims.
| |
| Allowing Summary Disposition at anytime is a blatant disregard for public input. Potentially,all of an intervenors contentions could be dismissed even before any hearing took place.
| |
| Finally, limiting the scope of issues that could be appealed prevents intervenors with interests in another party's contentions from contributing to the hearing process.
| |
| Intervenors are voices of concern for public safety, a matter which the NRC continues to disregard.
| |
| We oppose these rule changes for the harm they do to public participation.
| |
| Does the NRC wish to be autonomous? If so, they will surely be held accountable when safety measures provi insufficient in American nuclear power plants.
| |
| * U.S. NUCTEAR REGUlATORY COMMfSSf08 DOCKETING & SERVICE SE,CTION 0 (")IC - '
| |
| * r r r, cT *~ y
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| ~J Co Ad
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| | |
| Docketing & Service Branch Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 *86 OCT -2 PS :15 DOCKET# 50-443/50-4440L
| |
| | |
| ==Dear Sir:==
| |
| | |
| This letter concerns the proposed rule changes in licensing procedures for nuclear power plants. It is clear that these proposed changes are designed to get the public out of the licensing process and to speed up licensing of nuclear power plants in the United States, th~s democratic country. We are aware that these proposals would:
| |
| : 1. Raise admissions criteria for contentions.
| |
| : 2. Restrict use of discovery against NRC staff.
| |
| : 3. Restrict use of cross-examination during hearings.
| |
| : 4. Allow Summary Disposition of contentions anytime during the licensing proceedings.
| |
| : 5. Limit the scope of issues that could be appealed.
| |
| All these proposals minimize the role and eff~ct of intervenors during licensing proceedings.
| |
| Raising admissions criteria means the intervenor basically must prove his case in advance. As the rules are now, intervenors can hardly get NRC staff reports; comments on license applications are generally not available.
| |
| This proposal would keep *safety information from being brought forward to protect the public.
| |
| By restricting the use of discovery against the NRC staff, the public would have to take the NRC at its word. Under current law, the NRC staff
| |
| * can be forced to justify its conclusions.
| |
| Restricting the use of cross-examination means that intervenors would have to obtain special permission from the hearing judge in order to cross-
| |
| * examine witnesses. Face to face confrontation is the people's tool for getting at facts behind an applicant's claims.
| |
| Allowing Summary Disposition at anytime is a blatant disregard for public iriput. Potentially,all of an intervenors contentions could be dismissed even before any hearing took place.
| |
| * Finally, limiting the scope of issues that could be appealed prevents intervenors with interests in another party's contentions from contributing to the hearing process.
| |
| Intervenors are voices of co~cern for public safety, a matter which the NRC continues to disregard.
| |
| We oppose these rule changes for the harm they do to public participation.
| |
| Does the NRC wish to be autonomous? If so, they will surely be held accountable when safety measures prove insufficient in American nuclear power plants.
| |
| * Yours truly,
| |
| | |
| \
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| ,J l~AR R~c u, ATORY COMMISSION ETING & <:~~V 1CE SE'cTION FF Ire OF l fffe Doc*
| |
| ate I
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| l ored -1 r I n
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| | |
| Docketing & Service Branch Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 "86 OCT -2 P4 :45 DOCKET# 50-443/50-4440L OFF ICE Of '.:t .r- r. ,An DOC KETING i-. '.:1t - vie r.
| |
| 8RAN Crl D'ear Sir:
| |
| This letter concerns the proposed rule changes in licensing procedures for nuclear power plants. It is clear that these proposed changes are designed to get the public out of the licensing process _and to speed up licensing of nuclear power plants in the United States, this democratic country. We are aware that
| |
| * these proposals would:
| |
| * 1.
| |
| 2.
| |
| 3.
| |
| 4.
| |
| Raise admissions criteria for contentions.
| |
| Restrict use of discovery against NRC staff.
| |
| Restrict use of cross-examination during hearings.
| |
| Allow Summary Disposition of contentions anytime during the licensing proceedings.
| |
| : 5. Limit the scope of issues that could be appealed.
| |
| All these proposals minimize the role and effect of intervenors during licensing proceedings.
| |
| Raising admissions criteria means the intervenor basically must prove his case in advance. As the rules are now, intervenors can hardly get NRC staff reports; comments on license applications are generally not available.
| |
| This proposal would keep safety information from being brought forward to protect the public.
| |
| By restricting the use of discovery against the NRC staff, the public would have to take the NRC at its word. Under current law, the NRC staff
| |
| * can be forced to justify its conclusions.
| |
| Restricting the use of cross-examination means that intervenors would have to obtain special permission from the hearing judge in order to cross-examine witnesses. Face to face confrontation is the people's tool for getting at facts behind an applicant's claims.
| |
| Allowing Summary Disposition at anytime is a blatant disregard for public input. Potentially,all of an intervenors contentions could be dismissed even before any hearing took place.
| |
| Finally, limiting the scope of issues that could be appealed prevents intervenors with interests in another- party's contentions from contributing to the hearing process.
| |
| Intervenors are voices of concern for public safety, a matter which the NRC continues to disregard.
| |
| We oppose these rule changes for the harm they do to public participation.
| |
| Does the NRC wish to be autonomous? If so, they will surely be held accountable when safety measures prove insufficient in American nuclear power plants.
| |
| * Leslie and Jesse Kalfel
| |
| #6 51st St. Box 502 Yours truly, Plum Island Newbury, Ma. 01950
| |
| '711?-, -0'lw>-J,L. ~
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| Acknowledg d by card. QCT*.* ;3/4,.JSa&.,.,. ,/Y'lt,,vb ~ 1 /?1A,
| |
| | |
| NUCLEAR REC:111 DOCKETING OFF1rc r OF T, O
| |
| AT0RY COMMISSIO~
| |
| "VICE SE°CTION T-'RY "l
| |
| ark D~te s ~
| |
| c l D r n J
| |
| | |
| DOlKETEr*
| |
| Docketing & Service Branch US Nfi('
| |
| Secretary of the Connnission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 .86 OCT -2 P2 :SQ DOCKET# 50 -443/50-4440L OFF ICE UF $~v-: * !Ar- Y lilOCK ETIN G ,\ S[RV ICf BRAN Cfi -
| |
| n ea r Sir:
| |
| This letter concerns the proposed rule changes in licensing procedures for nuclear power plants. It is clear that these proposed changes are designed to get the public out of the licensing process and to speed up licensing of nuclear power plants in the United States, this democratic country. We are aware that these proposals would:
| |
| * 1.
| |
| 2.
| |
| 3.
| |
| 4.
| |
| 5.
| |
| Raise admissions criteria for contentions.
| |
| Restrict use of discovery against NRC staff.
| |
| Restrict use of cross-examination during hearings.
| |
| Allow Summary Disposition of contentions anytime during the li censing proceedings.
| |
| Lim it the scope of issues that could be appealed.
| |
| All these proposals minimize the role and effec t of intervenors during licensing proceedings.
| |
| Raising admissions criteria means the intervenor basically must prove his case in advance . As the rules are now, intervenors can hardly get NRC staff reports; comments on license applications are genera ll y not available .
| |
| This proposal would keep safety information from being brought forward to protect the public.
| |
| By restricting the use of discovery against the NRC staff, the public would have to take the NRC at its word. Under current law, the NRC staff can be forced to justify its conclusions .
| |
| Restricting the use of cross-examination means that intervenors would have to obtain special permission from the hearing judge in order to cross-examine witnesses. Face to fa ce confrontation is th e people's tool for -
| |
| getting at facts behind an applican t's claims. -
| |
| Allowing Summary Disposition at anytime is a blatant disr ega rd for public input. Potentially,all of an intervenors contentions could be dismissed even before any hearing took place.
| |
| Fina lly, limiting the scope of issues that could be appealed prevents intervenors with interests in another party's contentions from contributing to the hearin g process.
| |
| Intervenors are voices of concern for public safety, a matter which the NRC continues to disregard. __ --
| |
| We oppose these rule changes for the harm they do to public - p-articipat-j.en - - - - - - ~
| |
| Does the NRC wish to be autonomous? If so, they will sure l y be held accountable when safety measures prove insufficient in American ouclear power plants.
| |
| * yti~C?~
| |
| M. Donovan
| |
| , OCT 3 198E 21 Thorndike St . #2 Acknowtedied by_card . .*** , ** , ***** ,
| |
| * Beverly , MA 01915
| |
| | |
| U.S. NUCLEAR RE~ULAfORY COMMISSKJII ~
| |
| DOCKETING & SERVICE SECTION OFFICE n ~ p ~ ~~ ETARY OF Tl ' i" CC ION Po.tm"k Copies R D,,:
| |
| 00
| |
| **,t 1/41 / - ---
| |
| Add' I C " ro , ~er:l 4 Special o* r tion
| |
| | |
| OOLK[T L ;
| |
| Docketing & Service Branch USNHC Secretary of the Commission U.S. Nuclear Regulatory Counnission Washington, D.C. 20555 *86 OCT -2 P1 :30 DOCKET# 50-443/50-4440L OFF ICE OF *:;_1.,r,c :. ,-< Y DOC KET ING SUWICf.
| |
| 8RANC '1
| |
| | |
| ==Dear Sir:==
| |
| | |
| This letter concerns the proposed rule changes in licensing procedures for nuclear power plants. It is rcrear that these proposed changes are designed to get the public out of the licensing process and to speed up licensing of nuclear power plants in the United States, this democratic country. We are aware that these proposals would:
| |
| * 1.
| |
| 2.
| |
| 3.
| |
| 4.
| |
| Raise admissions criteria for contentions.
| |
| Re*strict use of discovery against NRC staff.
| |
| Restrict use of cross-examination during hearings.
| |
| Allow Summary Disposition of content i ons any t i me durin g the licensing proceedings.
| |
| : 5. Limit the scope of issues that could be appealed.
| |
| All these proposals minimize the role and effect of intervenors during lice nsing proceedings.
| |
| Raising admissions criteria means the intervenor basically must prove his case in advance. As the rules are now, intervenors can hardly get NRC staff reports; cormnents on license applications are generally not available.
| |
| This proposal would keep safety - information from being brought forward to protect the public.
| |
| By restricting the use of discovery a gainst the NRC staff, the public would have to take the NRC at its word. Under current law, the NRC staff *.*
| |
| * can be forced to justify its conclusions.
| |
| Restricticg the use of cross-examination means that intervenors would have to obtain special permission from the hearing jud g e in order to cross-examine witne~ses. Face ~o face confrontation is the people's tool for getting at facts behind an applicant's claims. _
| |
| Allowin g Summary Disposition at anytime is a blatant disre g ard for public input. Potentially,all o f an intervenors contentions could be dismissed even before any hearing took place.
| |
| Finally, limiting the scope of issues that could be appealed preve n ts intervenors with interests in another party's contentions from contributing to the hearing process.
| |
| Intervenors are voices of concern for public safety , a matter which the NRC continues to disre g ard.
| |
| We oppose these rul e ch a n g es f or the h a rm they do to public participation.
| |
| Does the NRC wish to be autonomous ? If so, th e y will surely be held accountable when safety measures prove insufficient in Ame r i can n u clear power plants.
| |
| * Yours truly ,
| |
| J)ol) -r fdeer'I 6 ur/, *r1lJcvn
| |
| %).bod-frf r}ULM.-J---1 ~ ~
| |
| ~,/Yl.ll. dt9!)
| |
| | |
| .t '
| |
| fJ.S. NU LEAR RfGUl M OR Y COMMISSIOJI CKET ING , c; n SECTION OFFICF Y TARY 0~ T, ** {' ON P~~tmerk D 10
| |
| (
| |
| | |
| LJOcm
| |
| * PR-( 51 r~ t?l4g~~
| |
| Docketing & Service Branch OO LKET U' U. NH C Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 '86 OCT -2 P1 :29 DOCKET# 50-443 /5 0-4440L OFF ICE Uf :::. , l iA~Y OOC K(TINLi }, S~ f/VI CL BRA NC ~'
| |
| | |
| ==Dear Sir:==
| |
| | |
| This letter concerns the proposed rule changes in licensing procedures for nuclea r powe r plants. It is clear that these proposed changes are designed to get the public out of the licensing process and to speed up licensing of nuclea r power plants in the United States, this democratic country. We are aware that these proposals would:
| |
| : 1. Raise admission s criteria for contentions.
| |
| : 2. Restrict use of discovery against NRC staff.
| |
| : 3. Restrict use of cross-examination during hearings.
| |
| : 4. Allow Summary Disposition of contentions anytime during the licensing proceedings.
| |
| : 5. Limit the scope of issues that could be appealed .
| |
| All these proposals minimize the role and efffct of intervenors during licensing proceedings.
| |
| Raising admissions criteria means the intervenor basically must prove his case in advance. As the rules are now, intervenors can hardly get NRC staff reports; comments on license applications are generally not available.
| |
| This proposal would keep safety information from being brought forward to protect the public.
| |
| By restricting the use of discovery against the NRC staff, the public would have to take the NRC at its word. Under current law, the NRC staff
| |
| * can be forced to justify its conclusions.
| |
| Restricting the use of cross-examination means that intervenors would have to ob t ain special permission from the hearing judge in order to cross- -
| |
| examine witn e sses. Face to face confrontation is the people's tool for g e t t ing at facts behind an applicant's claims.
| |
| Allowing Summary Disposition at anytime is a blatant disregard for public input. Potentially,all of an intervenors contentions could be dismissed even before any hearing took place .
| |
| Finally, limiting the scope of issues that could be appealed prevents interveno rs with interests in another party's contentions from contributing to the hearing process.
| |
| Intervenors are voices of co~cern for public safety, a matter which the NRC continues to disregard.
| |
| We oppose these rule changes for the harm they do to public participation.
| |
| Does the NRG wish to be autonomous? If so, they will surely be held accountable when safety measures prove insufficient in American nuclear power plants. ~
| |
| ~CT 3 1986 Acknowledged by card * ., .-. , , , , , , , ,,; ,:, , ** ilii?.I
| |
| | |
| &1, ~fA~ ~EGfJI. 1<1 Y COMMISSION DOCKETING ~ ~, ~ '* ~ FC':T ION OFFICE ,. - ~- I y OF T .
| |
| | |
| OOlKETE O Docketing & Service Branch US NHC Secretary of the Commission 0
| |
| U.S. Nuclear Regulatory Commission 86 OCT -2 P1 :21 Washington, D.C. 20555 DOCKET1fa 50-443/50-44401
| |
| 'C [l I.. V IOCKl 11 J I I h) ~ S '7- B
| |
| ~ I{7~,:L .
| |
| | |
| ==Dear Sir:==
| |
| 01 j 3 D This letter concerns the proposed rule changes in licensing procedures for nuclear power plants. It is clear that these proposed changes are designed to gee the public out of the licensing process .and to speed up licensing of nuclear power plants in the United States, this democratic ountry. We are aware that these proposals would:
| |
| : 1. Raise admissions criteria for contentions.
| |
| : 2. Restrict use of discovery against NRC staff.
| |
| : 3. Restrict use of cross-examination during hearings.
| |
| : 4. Allow Summary Disposition of contentions anytime during the licensing proceedings.
| |
| : 5. Limit the scope of issues that could be appealed.
| |
| All these proposals minimize the role and effect of intervenors during licen s ing proceed i ngs.
| |
| Raising admissions criteria means the intervenor basically must prove his case in advance. As the rules are now, intervenors can hardly get NRC staff reports; corrnnents on license applications are generally not available.
| |
| This proposal would keep safety" information from being brought forward to protect the public.
| |
| By restricting the use of_discovery a g ainst the NRC staff, the public would have to take the NRC at 1.ts word.
| |
| * Under current" law, the NRC staff : ,*
| |
| * can be forced to justify its conclusions.
| |
| Restricting the use of cross-examination means that
| |
| * intervenors would _
| |
| have to obtain special ~ermission from the hearing *judge .in order to cross-examine witnesses. Face to face confrontation *is the pe~ple's tool for getting at facts behind an applicant's claims.
| |
| Allowing Summary Disposition at anytime is a blatant disregard for public input. Potentially,all of an intervenors contentions could be dismissed 'even before any hearing took place.
| |
| Finally, limiting ~he ~cope of issues that could be appealed prevents intervenors with interests in another party's contentions from contributing to the hearing process.
| |
| Intervenors are voices of concern for public safety, a matter which the NRC continues to disregard.
| |
| We oppose these rule changes for the harm they do to public participation.
| |
| Does the NRC wish to be autonomous? If so, they will surely be held accountable when safety measures prove insufficient in American nuclear power plants. *
| |
| * Yours truly,
| |
| | |
| tm p1e d'
| |
| ecial ., r
| |
| | |
| OCT 3 1986 Aeknowledged by card ... * * * ...
| |
| * 0 * * * * * ,r; * *
| |
| | |
| . DOCKETING Nt1CLEAR RE ?'
| |
| om,..r. - ... _.
| |
| * 1
| |
| ~~T()Rf cqMMISSal '
| |
| ecnoN OF ~RY N
| |
| D mark o11*.
| |
| ies ,
| |
| d'I c cial Dist riS '
| |
| . ,J
| |
| | |
| JOSEPH M . McDADE
| |
| ' DISTRICT, PENNSYLVANIA 10TH COMMITTEES:
| |
| LJ CKil (51 II
| |
| ~
| |
| REPLY TO:
| |
| WASHINGTON OFFICE :
| |
| 2370 RAvEl_uRN OFFICE Bu1L01N G WASHINGTON. DC 20515 J' APPROPRIATIONS Qtongress of tbe It niteb * ~tates AREA CooE (2021 225- 3731 SMALL BUSINESS DOlKE fE r US NH C DISTRICT OFFICE :
| |
| J,ouse of Representatibts o* 514 SCRANTON LIFE BUILD I N G SCRANTON . PA 18503 Miasbington, me 20515 (717-1 346- 3834 0
| |
| 86 OCT -2 A9 :55 September 19, 1986 OFF ICE Of :tLr,* ,Al(Y DOCK ET! G & SL f<VI Cf BRAN CH The Honorable Samuel J. Ghil k Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 attn: Docketing and Service Branch
| |
| | |
| ==Dear Sir:==
| |
| | |
| I have enclosed a copy of a letter I received from one of my constituents, regarding a proposed rule to make procedural changes in the hearing process.
| |
| I recognize that the designated comment period ended earlier this month, but I am confident you will give this letter the attention it deserves.
| |
| Thank you in advance for your consideration.
| |
| Sincerely,
| |
| * JMM:dd Enclosure M. McDade of Congress
| |
| | |
| OOIOIOJI UDB RD.l BOI 398 OLTPRilTt PA.
| |
| ,. 18447 AUGUST 25.1986 JOSEPH M. Mc DADE : . . , . ~*
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| * REGARDING THE MAJOR CHANGES PROPOJtD IN RAUl .ArION 1-*ROTECTION _oTANDA~DS:
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| X _ - CONTROL INDUSTRY PLAN S TO !:.NUANGC:R H[)MAN A.ND E.:N VIRON MBNTAL HEALTH ~
| |
| AN OUT ~AN TO ADMI T THAT ITIN'IBNDS 1D OVER-UO St. THE GENERAL PUBLI C AN D WORKER'.:>
| |
| : ~ ~ :ADIOACTIVF EXPO S URES . SIMPLY TO L VADE RESPON SIBILITY
| |
| * R.B1 D D ~ RJWIBTER VOL.5lt WO.128 10 C.JR PART 2 PROPOSJ:D RUUI
| |
| .AB .1 CITIZEN'S ORGANIZATIO*, D .JUD THX PROPOSBD CHANGES 9YTI!AGEOUS1 XABIJJG THR ~UIRE!IUT8 o-, il A.LR1U.DY IRllS.PORSIBIA llfDUSTRY *
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| * VIRTUALLY .llLIMINATING .A1fY CRITIC IS ilD TBX PROCESS OP DISCOVDT (10 CFR 2.720)
| |
| SUCH A IIE(;HA.RISll(AB THIS PROPOSAL DAR118 TO PREBUT)WOULD UKDERKI.NB PUBLIC PARTICIPATIOR* GIVIlfG RRC STJFP ilD PRKSIDIIG OFJICER DICTATORlil, PO'IYES;TO ilS'fD ORLY WHAT THEY OBOOSB TO
| |
| .l.NSUR; AND TO nm.n:a RESPONSIBILITY BY DBL!llD RBSPONfm.
| |
| cooo* BE.HSI: DUA.RDS THAT BOD or THK PROPOSED CH.ilQKS g ALLOOJ>.
| |
| I:r CHA.BG:! BK IUDJI: .ll.,L()I l(O OW LlcmiSIIG UBTIL lffiC.UU.R INDUSTRY PROVES RXSPONSIBLI -,OR RU>IOJ.CTIVE W.lSDB I
| |
| * IP CH.ANGE BK UDK: WRITE THB RULBS IN PL!ll! UGLIBH, SO THAT DANI.HG IS ROT OBSCURED* lJfTllT NOT HIDDU.
| |
| I:r CHANGE B.S IUD:11 SlllPLI1'Y !BD lliU J.lfSWKR.lBLBs TH08l£ iTHO PRO:JIT BI-TO THOSB WHO auP,B.R :rROll .. THJ: KIPHCTS or RilIJ.TIO1'
| |
| * WE HA.VB BORROWKD AG.A.INST THE P.AST, BURRING l"OSSIL FUELS1 A RDJl:WABLE RESOURCK1 .RUOLJU.R POUR BARG.AUS !GA.INST TD ODDS 01' OUR OBILDREN'B rorn, AND THKIR CHILDRK1i'8 nrrt:JRM *** llAIIIllD!S FOTUR.S.
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| ~o!;LT I J
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| \J:roo OA.08 CODOI UBS&
| |
| | |
| <Ji§)
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| ;f4-8~ff DOCKETED USNRC 46 Sinnissippi Alliance L for the En* oi1~rfi3 :
| |
| 326 North Avon Street Rockford, Illinois 61 o\:9~E OF ~- lr,r, -,.~11_ Y OOCK ETING ?.:. .:, I :* V !Cf.
| |
| 8RAN CI-\
| |
| September 23, 1986 Secretary of the Commission ATTN: Docketing and Service Branch U.S. Nuclear Regulatory Conrrnission Washington, D.C. 20555
| |
| | |
| ==Dear Commissioners,==
| |
| | |
| These reforms are a way of locking out, and destroying, the citizens' chance of raising issues before the proper authorities before a reactor receives a license to construct or operate. I include comments sent to me, as well as to other citizen groups, which I heartily endorse. Please listen to the concerns of the Nuclear Information and Resource Service (NIRS). They speak for a t least sixty groups that I am awa re of who have taken issue with specific re-actors, and, at some level, have been successful at raising issues.
| |
| Do you understand - common citizens taking on multi-billion dollar conglom-erates, and winning - and you want to load these citizens down with legal bag-gage and red tape when these people have saved your ass a number of times!
| |
| Believe me when I say that the intervention here (Byron Units 1 & 2) upgraded the standing of the NRC in the public's eyes because:
| |
| : 1. They saw the government at work responding to local concerns.
| |
| : 2. Even though the utility had outspent the citizen groups 20 to one, it was still a fair hearing most of the time - and the public knew when we, the citizens, were getting shafted (i.e., when we were not able to present witnesses because of timeliness constraints).
| |
| : 3. NRC officials were always treated fairly by the public media, and often seen as the middle person between the citizens and the utility. If any of these rules are adopted, the NRC will look like lap do gs of the utilities.
| |
| To ensure a fair hearing - please disregard these new "reforms" which only limit and hamstring citizens.
| |
| : Yours,
| |
| ~i.~
| |
| Stanley E. Campbell Sec retary Sinnissippi Alliance has 458 members and is the lar gest citizens group that actively monitors the By ron reactors.
| |
| cc: Representative Lynn Martin
| |
| | |
| e U.S . Nl'C'",'P nr~,
| |
| CC n
| |
| * Pc*
| |
| Cop A* "
| |
| | |
| I* BACKGROUND Over the past several ye__a rs, the Qepart e,n-t _ _ .:*. . . *-**-<..
| |
| the nuclear industry have been lobbying the NRC ,.. ._~ngi e:s-s for measures that would sharply limit public partici '* . * . i * ,tuple I!
| |
| plant licensing proceedings . Ju t a licensing *r,~:_** . /" *.,._ .
| |
| legislation has been considered by Congr , t: * *
| |
| * it;ff~f:. J.t * .
| |
| examined proposals that would chang proce.d'Ur used br 11 * * *~ :t,f hearings. These proposals have been attacked fO:'f their ... ~
| |
| unfairness by NRC-appointed task forces, me *: r *** o.f the Jf -~:_.a_ ;
| |
| and NRC commissioners themselves. In 1984, the eo i~a.£ *_ 1" :
| |
| * ijed .
| |
| for comment an entire package of administrative proposal1J-"****. ~-- *-:
| |
| plant 1 icens ing. These proposals were widely er iticiz-ed y ': *
| |
| * Commissioner Asselstine and by members of the NRC's Regulato,y Reform Task Force. Despite this, the NRC is planning to move ahead with five sections of the 1984 proposal. Tbese .revisl4ns to 10 CFR Part 2 were published in the July 3, 1986 Regi ster , with only a 60-day comment period. It ia extremely unlik ely the comment period will be extende4.*
| |
| II. ANALYSIS OF PROPOSAL
| |
| : 1. Admission of contentions <section 2,714>
| |
| Currently, a petitioner seeking to intervene in a licensing hearing must provide a lis t of issues thats/he wishes t o have litigated during the hearing , and state the basis for each contention--why it should be examined. The proposed rul e substantially raises the threshold for admissibility of contentions. Each contention mus t dispute a speci fic portion of the license application itself, and the intervenor mu st list the sources and expert opinions relied on to back up th e contention.
| |
| This proposal essentially require s the intervenor to lay out in significant detail the entire case before th e licensing hearing even begins.
| |
| Even now, it is extreme ly difficult for interv enors to prepare their case because NRC staff reports and comrnen*ts on the license application generally are not available. Requiring intervenors to prove their case in advance, without having all the necessary document s, will limit even further the ir ability to investigate and bring vital safety information forward.
| |
| : 2. Limits on supoenas and Discovery Against NRC staff csection 2,720)
| |
| The NRC staff is a party to any l icensing hearing, just as the applicant and intervenor. The staff responds to contentions raised by intervenors. Under curren t law, the NRC staff can be forced to justify its conclusi ons and e xplain, for example, why it re lied on one NRC study and not another. If the basis for the
| |
| | |
| staff's position was inadequate , the bearing judge could require that additional resear~h and/o teats l;>e co.m pleted. Under the proposed rule, the NR<; *staff Woult!
| |
| * 6sserit:ially be take.Ji .. at it word. Interrogatories could b~ used only t e obtain 1tffe our-ee&,*.;
| |
| th, ~infQ~m,tion f ts
| |
| * I, relied on by ti)~. ,a~aff , :t'htt _st .. ff !OlJ},;d . n!>;t : ev~n b ~ - ~o ~r9v~e
| |
| !f i * * , re .on, t y o
| |
| * t other source.* T is WoUio for<: tSe '" }ntir . ft()r to . - ~-, ". ..
| |
| -ie *i t1r0~ _ -
| |
| ~- -
| |
| time and effort loc ti.-ig: and, ex iningr documents ~
| |
| * t r~ *?i . '
| |
| readily available* , a~ the loca l Public Document Room. The: s"t:-.ff coulG not be reqfih:
| |
| * cl- to perfor: aQdition-aJ. r .s- ar *
| |
| * O:ri.
| |
| * a _' ys-t*_ .,
| |
| ..".:. ,..,. ..4.,.,
| |
| NRC staf f is already protected from d *f co.very to.,,, a ce.r extent. These provisions shield it further, making it more difficult for vital information to come forth.
| |
| e 3. cross-Examination puring Ui:ar ,iJ)ga <§ection 2,741)
| |
| Cross-examination of witnesses is currently a .powerful tool used by intervenors t'o obt in th *tu.ii ~nq true di ~-l_Q:9ure o_f facts," as required in the Administrative Procedures Act.. The proposed rule requir es parties to obtain special permission from the bearing judge in order to cross-examine witnesses. The request must be submitted to the hearing judge in advance, and must include a descr iption of issues that will be the basis for the cross-examination, the objectives to be achieved by the cross-examination, and the proposed lin e of questions that will be used, together with "postulated answers."
| |
| While the NRC would apply t his rule to all parties wishing to utilize cross-examination (under the 1984 proposal, this provision only applied to intervenors), intervenors would still be severely hampered duri ng hearing s. Intervenors simply do not have the resources available to submit volumes of direct testimony. Face - to-face confrontation is one of the few ways to get at the facts behind an applicant's claims. Intervenors would have only 15 days to examine written testimony before making its request to cross-examine a witness.
| |
| : 4. Motions for summary Disposition Allowed at Anytime (2,749)
| |
| Under current NRC rules, the presiding officer at the license hearing sets a schedule for summary disposition of issues, and may bar motions at certa in times, for example, the period immediately before a hearing. This protects intervenors from harrassing motions that requi re substant ial diversion of resources away from preparing for the bearing itself.
| |
| The proposed rule removes th i s protection. Motions for disposition would be allowed at any time, even before or during discovery. An interveno r could lose a safety issue contention simply because adequate information had not been reviewed .
| |
| | |
| Potentially, all of an intervenor's contentions could be dis missed even before a hearing took place!
| |
| This proposal is unchanged from 1984, and more than any other provision, reveals the one-sided naturt: nd intention. of '
| |
| the entire rule. * ....;
| |
| : s. Proposed Findings of fact, conclusions of Law, and AppeJLs '
| |
| must be confined to issues which the intervenor *alone µ-:raced or sought to place in contention, csec, 2,162)
| |
| Currently an inter venor may participate on ill issues in which s/he has an interest. This proposal precludes a full hearing on the issues, by preventing intervenors with interests in another party's contentions from contributing to the hearing process.
| |
| III. GENERAL DISCUSSION Not one of these proposals is designed to enhance public participation in NRC proceedings. The package is simply a scaled down attack from 1984 on the role of intervenors in licens e hearings. It accomplishes this in three ways--by making it harder to become a party to a licensing hearing, by imposing l imitations during the hearing itself, and by allowing motions for dismisal of contentions at anytime. The NRC apparently feels that the licensing process would benefit by the elimination of intervenors, even though former NRC ch air Nunzio Palladino himself could cite no instance where wthe hearing process has unjustifiably delayed a nuclear power plant's operation. w There is no justification even in terms of expedience to cut back on intervenors' procedural rights. History shows that members of the public have consistently raised and pursued vital safety issues that the NRC itself overlooked.
| |
| Furthermore, should any licensing "reform" legislation pass in the Congress, these procedural changes would affect hearings on standardized design approvals, site selection and combined construction permits/operating licenses. The combination of the legislation and p r oposed rule would le ad to a serious curtailment of citizen participation in licensing hearings. Both must be opposed, but while Congress is bound by legislative procedures, the NRC has the power to make these ch a nges immediately . The limited period for comments reveals th e NRC's eagerness to push forward.
| |
| COMMENTS ARE DUE SEPTEMBER 2, 1986!
| |
| | |
| :=PR-:u l~I FR-J48Ct,~)
| |
| Docketing & Service Branch Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 DOCKETII 50-443/50-4440L D~ar Sir:
| |
| This letter concerns the proposed rule changes in licensing procedures for nuclear power plants. It is clear that these proposed changes are designed to get the public out of the licensing process and to speed up licensing of nuclear power plants in the United States, this democratic country. We are aware that these proposals would:
| |
| : 1. Raise admissions criteria for contentions.
| |
| : 2. Restrict use of discovery against NRC staff.
| |
| : 3. Restrict use of cross-examination during hearings.
| |
| : 4. Allow Summary Disposition of contentions anytime during the licensing proceedings.
| |
| : 5. Limit the scope of issues that could be appealed.
| |
| All these proposals minimize the role and effe,ct of intervenors during licensing proceedings.
| |
| Raising admissions criteria means the intervenor basically must prove his case in advance. As the rules are now, intervenors can hardly get NRC staff reports; comments on license applications are generally not available.
| |
| This proposal would keep safety information from being brought forward to protect the public .
| |
| By restricting the use of discovery against the NRC staff, the public would have to take the NRC at its word;- Under current law, the NRC staff can be forced to justify it~ conclusions .
| |
| Restricting the use of cross-examination means that intervenors would have to obtain special permission from the hearing judge in order to cross- _
| |
| examine witnesses. Face to
| |
| * face confrontation is the people's tool for getting at facts behind an applicant's claims.
| |
| Allowing Summary Disposition at anytime is a blatant disregard for public input. Potentially,all of an intervenors contentions could be dismissed even before any hearing took place.
| |
| Finally, limiting the scope of issues that could be appealed prevents intervenors with interests in another party's contentions from contributing to the hearing process.
| |
| Intervenors are voices of concern for public safety, a matter which the NRC continues to disregard.
| |
| We oppose these rule changes for the harm they do to public participation.
| |
| Does the NRC wish to be autonomous? If so, they will surely be held accountable when safety measures prove insufficient in American nuclear power plants. ~
| |
| Yours truly, ALICE PRINCE 15 ROLFES LN.
| |
| NEWBURY, MA. 01950
| |
| | |
| '' I U. S. NUC' r . '" (()f,,\
| |
| DQ,..j( . r~c, -*
| |
| (
| |
| Po, Cu A I '
| |
| Spern:il
| |
| | |
| Docketing & Service Branch Secretary of the Connnission U.S. Nuclear Regulatory Connnission 33 Washington, D.C. 20555 '86 SEP 29 P3 :
| |
| DOCKET11 50-443/50-4440L
| |
| | |
| ==Dear Sir:==
| |
| | |
| This letter concerns the proposed rule changes in licensing procedures for nuclear power plants. It is clear that these proposed changes are designed to get the public out of the licensing process and to speed up licensing of nuclear power plants in the United States, this democratic country. We are aware that these proposals would:
| |
| : 1. Raise admissions criteria for contentions.
| |
| : 2. Restrict use of discovery against NRC staff.
| |
| : 3. Restrict use of cross-examination during hearings.
| |
| : 4. Allow Summary Disposition of contentions anytime during the licensing proceedings.
| |
| : 5. Limit the scope of issues that could be appealed.
| |
| All these proposals minimize the role and effect of intervenors during licensing proceedings.
| |
| Raising admissions criteria means the intervenor basically must prove his case in advance. As the rules are now, intervenors can hardly get NRC staff reports; cormnents on license applications are generally not available.
| |
| This proposal would keep safety information from being brought forward to protect the public.
| |
| By restricting the use of discovery against the NRC staff, the - public would have to take the NRC at its -* word ;- * :under current law, the NRc
| |
| * staff
| |
| * can be forced to justify its conclusions. -
| |
| Restricting the use of cross-examination means that intervenors would have to obtain special permission from the hearing judge in order to cross-examine witnesses. Face to face confrontation "is the people's tool for getting at facts behind an applicant's -claims. _:.
| |
| Allowing Summary Disposition at anytime is a blatant disregard for public input. Potentially,all of an intervenors contentions could be dismissed even before any hearing took place.
| |
| Finally, limiting the scope of issues that could be appealed prevents intervenors with interests in another party's contentions from contributing
| |
| ,)
| |
| to the hearing process. ..,::> .*
| |
| Intervenors . are voices of concern for public safety, a matter which the NRC continues to disregard.
| |
| ~=
| |
| ::I:
| |
| We oppose these rule changes for the harm they do to public participation.
| |
| Does the NRC wish to be autonomous? {;ff so, they will surely be held accountable when safety measures prove insufficient in American nuclear power plants.
| |
| * Docketing & Service Branch Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 DOCKET# 50-443/50-4440L OFFI C Li~ S'.:. ~_" t_!u'.Y.
| |
| 1 OOC KETING & ::lt<VICf.
| |
| BRANCl-l
| |
| | |
| ==Dear Sir:==
| |
| | |
| This letter concerns the proposed rule changes in licensing procedures for nuclear power plants. It is clear that these proposed changes are designed to get the public out of the licensing process .and to speed up licensing of nuclear power plants in the United States, this democratic country . We are aware that these proposals would:
| |
| : 1. Raise admissions criteria for contentions.
| |
| : 2. Restrict use of discovery against NRC staff.
| |
| : 3. Restrict use of cross-examination during hearings.
| |
| : 4. Allow Summary Disposition of contentions anytime during the licensing proceedings .
| |
| : 5. Limit the scope of issues that could be appealed.
| |
| All these proposals minimize the role and effect of intervenors during licensing proceedings.
| |
| Raising admissions criteria means the intervenor basically must prove his case in advance. As the rules are now, intervenors can hardly get NRC staff reports; comments on license applications are generally not available.
| |
| This proposal would keep safety information from being brought forward to protect the public.
| |
| By restricting the use of discovery against the NRC . staff, the public would have to take the NRC at its word. Under current-* law, the NRC staff .
| |
| can be forced to justify its conclusions.
| |
| Restricting the use of cross-examination means that intervenors would have to obtain special permission from the hearing judge .in order to cross-examine witnesses. Face to face confrontation is the people's tool for getting at facts behind an applicant's claims.
| |
| Allowing Summary Disposition at anytime is a blatant disregard for public input. Potentially,all of an intervenors contentions could be dismissed even before any hearing took place.
| |
| Finally, limiting ~he ~cope of issues that could be appealed prevents intervenors with interests in another party's contentions from contributing to the hearing process.
| |
| Intervenors are voices of concern for public safety, a matter which the NRC* continues to disregard.
| |
| We oppose these rule changes for the harm they do to public participation.
| |
| Does the NRC wish to be autonomous? If so, they will surely be held accountable when safety measures prove insufficient in American nuclear power plants.
| |
| * Yours truly,
| |
| | |
| U.S. NUCU=' J':.. i< '' COMM( SSION DOCKET" OF*
| |
| l, Postm11r 1 Cop Add'I Spec* I
| |
| | |
| Docketing & Service Branch OO lK [ ll L"
| |
| ~S NHC Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 0 86 SEP 29 P3 :28 DOCKETil 50-443/50-4440L OFFI Ct: O* ~t *~1,r IAt<Y DOCK ET ING,;_, SlRVICf BRANC~
| |
| Dea r Sir:
| |
| This letter concerns the proposed rule changes in licensing procedures for nuclear power plants. It is clear that these proposed changes are designed to get the public out of the licensing process and to speed up licensing of nuclear power plants in the United States, this democratic c~untry. We a~e aware that these proposals would:
| |
| : 1. Raise admissions criteria for contentions.
| |
| : 2. Restrict use of discovery against NRC staff.
| |
| : 3. Restrict use of cross-examination during hearings.
| |
| : 4. Allow Summary Disposition of contentions anytime during the licensing proceedings.
| |
| : 5. Limit the scope of i ssues that could be appealed.
| |
| All these proposals minimize the role and effect of intervenors duri ng licensing proceedings.
| |
| Raising admissions criteria means the intervenor basically must prove his case in advance. As the rules are now, intervenors can hardly ge t NRC staff reports; comments on li cense applications are generally not available.
| |
| This proposal would keep safety information from being brought forward to protect the public.
| |
| By re strict in g th e use of discovery a gainst the NRC staff, the public would ha ve to take the NRC at its word. Under current law , the NRC staff can be forc e d to justify its c onclusions .
| |
| Rest ri cting the use of cross-examination means th a t intervenors would have to obtain spec ial permiss ion from the hearing jud ge in order to cross-e xamine wi t nesse s . Fa c e to face confrontation is the people's tool for g e ttin g at fa c t s b e hind an app l icant's claims.
| |
| Allowin g Summary Di s position at anyt ime is a blatant disregard for public input . Pot e ntial l y,all of an intervenors contentions cou ld be d ismissed even before any hea ring took place.
| |
| Final l y, limiting the sco pe of issues that cou ld be appealed prevents intervenors with interests in another party's co nt entions from contributing to the hearing process.
| |
| Interv enors are voices of concern for public safety, a mat ter which the ijRC~_G.9n._tinues to disregard.
| |
| _~-:.=---::::::=- =- _:e¥fi-ese rule changes for the harm they do to public participation.
| |
| Does the NRC wish to be autonomous? If so , they will surely be held account a ble when safety me a sures prove insufficient in Am e rican nuclear power plants.
| |
| Yours truly,
| |
| | |
| \I. S. NUC'L ! ' "
| |
| DOCK C".
| |
| Po5t Cop Ad '
| |
| Spec,,.'
| |
| | |
| Docketing & Service Branch 00l K[ T[r1 Secretary of the Connnission US NRC U.S. Nuclear Regulatory Commission Washington, D.C. 20555 "86 SEP 29 P3 :26 DOCKET# 50-443/50-4440L ff ICE n~ s~ *-* 1*1 *
| |
| * t< v 00 KETING !J. SEP VIC:f.
| |
| BRANG~
| |
| \
| |
| | |
| ==Dear . Sir:==
| |
| | |
| ff} I 'J This letter concerns the proposed rule changes in licensing procedures for nuclear power plants. It is clear that these proposed changes are designed to get the public out of the licensing process and to speed up licensing of nuclear power plants in the United States, this democratic country. We are aware that these proposals would:
| |
| : 1. Raise admissions criteria for contentions.
| |
| : 2. Restrict use of discovery against NRC staff.
| |
| : 3. Restrict use of cross-examination during hearings.
| |
| : 4. Allow Summary Disposition of contentions anytime during the licensing proceedings.
| |
| : 5. Limit the scope of issues that could be appealed.
| |
| All these proposals minimize t he role and effect of intervenors during licensing proceedings.
| |
| Raising admissions criteria means the intervenor basically must prove his case in advance. As the rul es are now, intervenors can hardly get NRC staff reports; comments on license applications are generally not available.
| |
| This proposal would keep safety information from being brought forward to protect *the public.
| |
| By restricting the use of discovery against the NRC staff, the public -
| |
| would have to take the NRC at its word. Under -current law, the NRC staff - ,
| |
| can be forced to justify its conclusions. *{
| |
| Restricting the use of cross-examination means 1 that intervenors would __
| |
| have to obtain special permission from the hearing judge in order to cross-examine witnesses. Face to face confrontation - is the people's tool for getting at facts behind an applicant's claims.
| |
| Allowing Summary Disposition at anytime is a blatant disregard for public input. Potentially,all of an intervenors contentions could be dismissed even before any hearing took place.
| |
| Finally, limiting the scope of issues that could be appealed prevents intervenors with interests in another party's contentions from contributing*
| |
| to the hearing process.
| |
| Intervenors are voices of concern for public safety, a matter which the NRC continues to disregard.
| |
| We oppose these rule changes for the harm they do to public participation.
| |
| Does the NRC wish to be autonomous? If so, they will surely be held accountable when safety measures prove insufficient in American nuclear power plants.
| |
| * kkMwfedged by card sa:-p ll 1ai)i 3 >--.
| |
| | |
| U.S. NUCLEI R R r ' *.,. R" COMMISSION DOCKETING , -r SEG ION 0 '_.: RY r;
| |
| Poslm Copies "'
| |
| Add'I Spec*al
| |
| | |
| (jjj)
| |
| Docketing & Service Branch DOCK [ l l[*
| |
| Secretary of the Commission USN C U.S. Nuclear Regulatory Commission Washington, D.C. 20555 0 86 SEP 29 P3 :12 DOCKET/I 50-443/50-4440L Uear Sir:
| |
| This letter concerns the proposed rule changes in licensing procedures for nuclear power plants. It is clear that these proposed changes are designed to get the public out of the licensing process _and to speed up licensing of nuclear powe~ plants in the United States, this democratic country. We a*re a are that these proposals would:
| |
| : 1. Raise admissions criteria for contentions.
| |
| : 2. Restrict use of discovery against NRC staff.
| |
| : 3. Restrict use of cross-examination during hearings.
| |
| : 4. Allow Summary Disposition of contentions anytime during the 0 licensing proceedings .
| |
| : 5. Limit the scope of issues that could be appealed.
| |
| All these proposals minimize the role and effect of intervenors during licensing proceedings.
| |
| Raising admissions criteria means the intervenor basically must prove his case in advance. As the rules are now, intervenors can hardly get NRC staff reports; comments on license applications are generally not available.
| |
| This proposal would keep safety information from being brought forward to protect the public.
| |
| By restricting the use of discovery against the NRC staff, the public would have to take the
| |
| * NRc at its word. Under current law, the NRC staff can be forced to justify its conclusions.
| |
| Restricting the use of cross-examination means that intervenors would have to obtain special permission from the hearing judge in order to cross-examine witnesses. Face to face confrontation is the people's tool for getting at facts behind an applicant's claims.
| |
| Allowing Summary Disposition at anytime is a blatant disregard for public input. Potentially,all of an intervenors contentions could be dismissed even before any hearing took place.*
| |
| Finally, limiting the scope of issues that coulg be appealed prevents
| |
| * intervenors with interests in another party's _c ontent ions from contributing to the hearing process.
| |
| Intervenors are voices of concern for public safety, a matter which the NRC continues to disregard.
| |
| We oppose these rule changes for the harm they do to public participation.
| |
| Does the NRC wish to be autonomous? If so, tQey will surely be held accountable when safety measures prove insufficient in American nuclear power plants.
| |
| * Yours truly,
| |
| /.,.
| |
| ~ -J ~ *Au *a_,
| |
| / , SEP 3 0 l
| |
| , / Acknow~ed y ca rd . ..**..*****-*.*** , * ,,_..
| |
| | |
| Juelil . . .R
| |
| ¥1WYII PE PR- .
| |
| [~!Fl, ~48~
| |
| Docketing & Service Branch Secretary of the Connnission U.S. Nuclear Regulatory Connnission Washington, D.C. 20555 DOCKED'! 50-443/50-4440L +10LT 5-SMt~S\,
| |
| ~ru
| |
| \
| |
| | |
| ==Dear . Sir:==
| |
| 0£?:SV This letter concerns the proposed rule changes in licensing procedures for nuclear power plants. It is clear that these proposed changes are designed to get the public out of the licensing process : and to speed up licensing of nuclear power plants in the United State.s , . this democratic country. We are aware that these proposals would:
| |
| : 1. Raise admissio~s criteria for contentions.
| |
| : 2. Restrict use of discovery against NRC staff.
| |
| : 3. Restrict use of cross-examination during hearings.
| |
| : 4. Allow Summary Disposition of contentions anytime during the licensing proceedings.
| |
| : 5. Limit the scope of issues that could be appealed.
| |
| All these proposals minimize the role and effect of interve nors during licensing proceedings.
| |
| Raising admissions criteria means the intervenor basically must prove his case in advance. As the rules are now, intervenors can h ardly get NRC staff reports; comments on license .a pplications are generally not available.
| |
| This proposal--.would keep safety information from being brought forward to protect *the public . .
| |
| By r~stricting ::.the ,_tise ~.of discovery . against the *NRc *staff, ; the pubFc would have to take the - NRC ~at -its word. -- Under 'current law, the NRC staff *-*-
| |
| can be forced to justify its conclusions. -
| |
| . Res-tricting the -use -of cross-ex.a mination means .that intervenors would - ...
| |
| have to obtain spec i al _permission from t:he*- hearing judge in order to cross-:
| |
| examine witnesses. -Face
| |
| * to face confrontation is the -people '-:s tool for . .**
| |
| getting ~at facts behind *an applicant Is claims ;-=---
| |
| Allowing Summary Disposition -* at anytime *is a blatant *disregard for -public *_
| |
| input.
| |
| * Potentially,all of an intervenors *contentions -could be dismissed even before any hearing *t~ok . plac~. -
| |
| Fina l ly, limiting the .scope of issues that . could be appealed prevents intervenors with interests in another party's contentions from contributing *"-
| |
| to the hearing process.
| |
| Intervenors are voices of concern for public safety, a matter which the NRG continues to disregard.
| |
| We oppose these rule changes for .the harm they
| |
| * do to public participation.
| |
| Does the NRC wish to be autonomous? If so, they will surely be held accountable whe*n safety measures prove insufficient in American nuclear power plants.
| |
| * Yours truly,
| |
| . - ~~~
| |
| Ack *. _
| |
| l,,wf...,,..b . 8£P ... 3*0 JOO.:!
| |
| _,. I\C?W""ue;~d y card,. .... ;;;. u ; .. ~.,, u
| |
| | |
| PostM~ '
| |
| Copi Ad 'I Sp C'
| |
| | |
| Docketing & Service Branch Secretary of the Commission Sf_P 29 p 3 *.09 U.S. Nuclear Regulatory Commission *S6 Washington, n.c. 20555 DOCKET# 50-443/50-4440L
| |
| \
| |
| | |
| ==Dear . Sir:==
| |
| | |
| This letter concerns the proposed rule changes in licensing procedures for nuclear power plants. It is clear that these proposed changes are designed to get the public out of the licensing process and to speed up licensing of nuclear power plants in the United States, this democratic country. We are aware that these proposals would:
| |
| : 1. Raise admissions criteria for contentions.
| |
| : 2. Restrict use of discovery against NRC staff.
| |
| : 3. Restrict use of cross-examination during hearings.
| |
| : 4. Allow Summary Disposition of contentions anytime during the licensing proceedings.
| |
| : 5. Limit the scope of issues that could be appealed.
| |
| All these proposals minimize the role and effect of intervenors during licensing proceedings.
| |
| Raising admissions criteria means the intervenor basically must prove his case in advance. As the rules are now, intervenors can hardly get NRC staff reports; comments on license applications are generally not available.
| |
| This proposal would keep safety information from being brought forward to protect *the public.
| |
| By restricting the use of discovery against the NRC staff, the public would have to take the NRC at its word. Under current law; the NRC staff can be forced to justify its conclusions.
| |
| Restrict[ng the use of cross-examination means that intervenors would have to obtain special permission from _the hearing judge in order to cross- _
| |
| examine witnesses. Face to face confrontation is the people's tool for getting at facts behind an applicant's claims.
| |
| Allowing Summary Disposition at anytime is a blatant disregard for public input. Potentially,all of an intervenors contentions could be dismissed even before any hearing took place.
| |
| Finally, limiting the scope of issues that could be appealed prevents intervenors with interests in another party's contentions from contributing to the hearing process.
| |
| Intervenors are voices of concern for public safety, a matter which the NRC continues to disregard.
| |
| We oppose these rule changes for the harm they do to public participation.
| |
| Does the NRC wish to be autonomous? If so, they will surely be held accountable when safety measures prove insufficient in American nuclea r power plants. *
| |
| | |
| \.._,
| |
| IJ.~. NU(LtA ~.: 10RY COMMISSION DOCl'".,.I I vier !:iCTION 0 F .
| |
| -~
| |
| "T RY Pos tl'T',r ~
| |
| : Cop, Add' 1 Spec ial
| |
| | |
| OOCK [ TEr Docketing & Service Branch tJS NHC Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 *86 SEP 29 P3 :Q8 DOCKET4! 50-443/50-4440L
| |
| \
| |
| | |
| ==Dear Sir:==
| |
| | |
| This letter concerns the proposed rule changes in licensing procedures for nuclear power plants. It is c,l ear that these proposed changes are designed to get the public out of the licensing process and to speed up licensing of nuclear power plants in the United States, this democratic country. We are aware that these proposals would:
| |
| : 1. ~aise admissions criteria for contentions.
| |
| *2. Rest.rict use of discovery against NRC staff.
| |
| : 3. Restrict use of cross-examination during hearings.
| |
| : 4. Allow Summary Disposition of contentions anytime during the licensing proceedings.
| |
| : 5. Limit the scope of
| |
| * issues that could be appealed.
| |
| All these proposals minimize the role and effect of intervenors during licensing proceedings.
| |
| Raising admissions criteria means the intervenor basically must prove his case in advance. As the rules are now, intervenors can hardly get NRC staff reports; comments on license applications are generally not available.
| |
| This proposal would keep safety information from being brought forward to protect *the public.
| |
| By restricting the use of discovery against the NRC staff, the public would have to take the NRC at its word. Under current law, the NRC staff can be forced to justify its conclusions.
| |
| Restricting the use of cross-examination means that intervenors would have to obtain special permission from the hearing judge in order to cross-examine witnesses. Face to face confrontation is the people's tool for getting at facts behind an applicant's claims.
| |
| Allowing Summary Disposition at anytime is a blatant disregard for public input. Potentially,all of an intervenors contentions could be dismissed even before any hearing took place.
| |
| Finally, limiting the scope of issues that could be appealed prevents intervenors with interests in another party's contentions from contributing to the hearing process.
| |
| Intervenors are voices of concern for public safety, a matter which the NRC continues to disregard.
| |
| We oppose these rule changes for the harm they do to public participation.
| |
| Does the NRC wish to be autonomous? If so, they will surely be held accountable when safety measures prove insufficient in American nuclear power plants.
| |
| MS LESLIE A LIPKIND 178 MAIN STREET V NEVBIRV MA 019B5 ~
| |
| prs t .ruly, /1_* J) -
| |
| f;;x' ~
| |
| -J .
| |
| . . SEP 3 0 1986 knowte~ by card ................ , ....,
| |
| | |
| /.J. S NUCLEAR *,*r '!': T0~Y COMMI SSIOt DOCKETIW' f, ~ *:* :~ '.';E°CTION OFFICE , .. 'RY
| |
| ('" .
| |
| p , I r
| |
| | |
| Docketing & Service Branch DOCKET LL US NRC Secretary of the Connnission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 "86 SEP 29 P3 :O?
| |
| DOCKET# 50-443/50-4440L
| |
| | |
| ==Dear Sir:==
| |
| | |
| This letter concerns the proposed rule changes in licensing procedures for nuclear power plants. It is clear that these proposed changes are designed to get the public out of the licensing process and to speed up licensing of nuclear power plants in the United States, this democratic country. We are aware that these proposals would:
| |
| : 1. Ra i se admissions criteria for contentions.
| |
| : 2. Restrict use of discovery against NRC staff.
| |
| : 3. Restrict use of cross-examination during hearings.
| |
| : 4. Allow Summary Disposition of contentions anytime during the licensing proceedings.
| |
| : 5. Limit the scope of issues that could be appealed.
| |
| All these proposals minimize the role and eff~ct of intervenors during licensing proceedings.
| |
| Raising admissions criteria means the intervenor basically must prove his case in advance. As the rules are now, intervenors can hardly get NRC staff reports; corrnnents on license applications are generally not available.
| |
| This proposal would keep safety information from being brought forward to protect the public.
| |
| By restricting the use of discovery against the NRC staff, the public would have to take the NRG at its word. Under current law, the NRG staff can be forced to justify its conclusions.
| |
| Restricting the use of cross-examination means that intervenors would ha v e to obtain special permission from the hearing judge in order to cross-examine witnesses. Face to face confrontation is the people's tool for getting at facts behind an applicant's claims.
| |
| Allowing Summary Disposition at anytime is a blatant disregard for public input. Potentially,all of an intervenors contentions could be dismissed even before any hearing took place.
| |
| Finally, limiting the scope of issues that could be appealed prevents intervenors with interests in another party's contentions from contributing to the hearing process.
| |
| * Intervenors are voices of concern for public safety, a matter which the NRG continues to disregard.
| |
| We oppose these rule changes for the harm they do to public participation.
| |
| Does the NRG wish to be autonomous? If so, they will surely be held accountable when safety measures prove insufficient in American nuclear power plants. ~
| |
| .J A tJ £T f._ f ((:,/Mo l'Cknow~d by card ...SEP. .3 .a.
| |
| | |
| S. NUCLEAR REGULATORY COMMISSION DOCKETING & SEP.VI CE S~CT !ON OFFtcr: c*~ ~ ~ (_, ,.- t. ~-y strn, 1* ~
| |
| dv I ,
| |
| ecial D
| |
| | |
| Docketing & Service Branch 00 ( KEi u,
| |
| :J5 NRC Secretary of the Connnission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 SEP 26 P2 :44 DOCKET:/fa 50-443/50-4440L Uear Sir:
| |
| This letter concerns the proposed rule changes in licensing procedures for nuclear power plants. It is clear that these proposed changes are designed to get the public out of the licensing process and to speed up licensing of nuclear power plants in the United States, this democratic country. We are aware that these proposals would:
| |
| : 1. Raise admissions criteria for contentions.
| |
| : 2. Restrict use of discovery against NRC staff.
| |
| : 3. Restrict use of cross-examination during hearings.
| |
| : 4. Allow Summary Disposition of contentions anytime during the licensing proceedings.
| |
| : 5. Limit the scope of issues that could be appealed.
| |
| All these proposals minimize the role and effect of intervenors during licensing proceedings.
| |
| Raising admissions criteria means the intervenor basically must prove his case in advance. As the rules are now, intervenors can hardly get NRC staff reports; comments on license applications are generally not available.
| |
| This proposal would keep safety information from being brought forward to protect the public.
| |
| By restricting the use of discovery against the NRC staff, the public would have to take the NRC *at its word. Under current - law, the NRC staff can be forced to justify its conclusions.
| |
| Restricting the use of cross-examination means that intervenors would have to obtain special permission from the hearing judge in order to cross-examine witnesses. Face to face confrontation is the people's tool for -
| |
| getting at facts behind *an applicant's claims ~
| |
| Allowing Summary Disposition at anytime is a blatant disregard fpr public input. Potentially,all of an intervenors contentions could be dismissed even before any hearing took place.
| |
| Finally, limiting the scope of issues that could be appealed prevents intervenors with interests in another party's contentions from contributing to the hearing process.
| |
| Intervenors are voices of concern for public safety, a matter which the NRC* continues to disregard.
| |
| We oppose these rule changes for the harm ~hey do to public participation.
| |
| Does the NRC wish to be autonomous? If so, they will surely be held accountable when safety measures prove insufficient in American nuclear power plants~
| |
| * U.S. NUCLEAR (<f'. GUL'. T01 DOCKETlt*i G & ~E1 ~*1c OFFIC n;- ~y OF ,I Postmark ..,
| |
| Copies '
| |
| Add' I pociai ...
| |
| | |
| Docketing & Service Branch oornrrff' US NH C Secretary of the Connnission U.S. Nuclear Regulatory Connnission Washington, D.C. 20555 136 SEP 25 P2 :52 DOCKET# 50-443/50-4440L OFF /CE O;:'*,. 'H DOCKETING-- sr~/1 c/
| |
| BRAN CH '*
| |
| | |
| ==Dear . Sir:==
| |
| | |
| This letter concerns the proposed rule changes in licensing procedures for nuclear power plants. It is clear that these proposed changes are designed to get the public out of the licensing process .and to speed up licensing of nuclear power plants in the United States, this democratic country. We are aware that these proposals would:
| |
| : 1. Raise admissions criteria for contentions.
| |
| : 2. Restrict use of discovery against NRC staff.
| |
| : 3. Restrict use of cross-examination during hearings.
| |
| : 4. Allow Summary Disposition of contentions anytime during the licensing proceedings.
| |
| : 5. Limit the scope of issues that could be appealed.
| |
| All these proposals minimize the role and effect of intervenors during licensing proceedings.
| |
| Raising admissions criteria means the intervenor basically must prove his case in advance. As the rules are now, intervenors can hardly get NRC staff reports; corrnnents on license applications are generally not available.
| |
| This proposal would keep safety information from being brought forward to protect *the pub lie.
| |
| By restricting the use of discovery against the NRC staff, the public would have to take the NRC at its word. Under current law, the NRC staff can be forced to justify its conclusions.
| |
| Restricting the use of cross-examination means that intervenors would have to obtain special permission from the hearing judge in order to cross-examine witnesses. Face to face confrontation is the people's tool for getting at facts behind an applicant's claims. --
| |
| Allowing Summary Disposition at anytime is a blatant disregard for public input. Potentially,all of an intervenors contentions could be dismissed even before any hearing took place.
| |
| Finally, limiting the scope of issues that could be appealed prevents intervenors with interests in another
| |
| * party's contentions from contributing to the hearing process.
| |
| Intervenors are voices of concern for public safety, a matter which the NRC continues to disregard .
| |
| We oppose these rule changes for the harm they do to public participation.
| |
| Does the NRC wish to be autonomous? If so, they will surely be held accountable when safety measures prove insufficient in American nuclear power plants.
| |
| * U. S NUCLEAR REG 1S510 DOCKETI* 10 OFrlCI: Y cc T Postm rk ..,
| |
| Co;:>ies *
| |
| '\dd'I C Special D, r
| |
| | |
| 1 (fl)
| |
| Docketing & Service Branch DOCK[ l Er1 Secretary of the Commission US NRC U.S. Nuclear Regulatory Commission Washington, D.C. 20555 .86 SEP 25 P2 :54 DOCKET# 50-443/50-4440L
| |
| | |
| ==Dear Sir:==
| |
| | |
| This letter concerns the proposed rule changes in licensing procedures for nuclear power plants. It is clear that these proposed changes are designed to get the public otit of the licensing process and to speed up licensing of nu clear power plants in the United States, this democratic country. We are aware that these proposals would:
| |
| : 1. Raise admissions criteria for contentions.
| |
| : 2. Restrict use of discovery against NRC staff.
| |
| : 3. Re§trict use of cross-examination during hearings.
| |
| : 4. Allow Summary Disposition of contentions anytime during the licensing proceedings.
| |
| : 5. Limit the scope of issues th at could be appealed.
| |
| All these proposals minimize the role a nd effect of intervenors during licensing proceedings.
| |
| Raising admissions criteria mea ns the interve nor basically must prove his case in advance. As the rules are now, interven ors can hardly get NRC staff reports; comments on license applications are ge nerally not available. llj This proposal would keep safety informa tion from being brought forw a rd to protect *the public.
| |
| By restricting the use of discove ry against the NRC staff, the public would have to take the NRC at its word . Under current law, the NRC staff can be forced to justify its conclusi o ns .
| |
| Restricting the use of cross-e xam ination means that intervenors would have to obtain special permissio n f r om the heari n g judge in order to cross-examine witnesses. Face to face confrontation is the people's tool for gett in g at facts behind an applicant's claims.
| |
| Allowing Summary Disposition at anytime is a blatant disregard for public input. Potentially,all of an intervenors contentions could be dismissed even before any hearing took place.
| |
| Finally, limiting the scope of issues that c ould be appea led prevents intervenors wi th interests in anoth er par t y 's conten ti ons from contributing to the hearing process .
| |
| Intervenors are voices of concern fo r public safe t y, a matter which the NRC continues to disre ga rd.
| |
| We oppose these r u le chan g es for t he harm the y do to public participation .
| |
| Does the NRC wish to be autonomous? If so, th ey will su rely be held accountable when safety measures prove insufficient in Am e rican nuclear power plants.
| |
| * Yours truly, 13Mb~~cJd_
| |
| !SK S-hvk. S+v-ed-v-J.ew ~c'.> ro-rr ) ~s . a Ic:i _'.) D
| |
| | |
| . NUCLEAR R'GUL; T " .' COMMI S. 0~
| |
| DOCKET *~ & *. R,'iC S~'c:TION OFFl.'"E - 1 *- rrq RY o- -* .
| |
| r . . ,. .
| |
| 6ostm~rk D
| |
| -op1cs f'
| |
| * d~' I Cc;.
| |
| pcci1:I D* 'r
| |
| | |
| Docketing & Service Branch DDCK[ rcr, USNftC Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 "86 SEP 25 P2 :54 DOCKETifo 50-443/50-4440L fi~ 'rYl - ~ ~ - ~ 1IY1 - P ,J}U ter-Df- ;wi -
| |
| ., '*-r---. "-...-v-OO'Cf(E-1lNG ,;_. S[R v,c;'{-\"*
| |
| ~ I"
| |
| ' '--\'* j ''f*
| |
| BRANCH Dear . Sirs '
| |
| This letter concerns the proposed rule changes in licensing procedures for nuclear power plants. It is clear that these proposed changes are designed to get the public out of the licensing process and to speed up licensing of nuclear power plants in the United States, this democratic country. We are aware that these proposals would:
| |
| : 1. Raise admissions criteria for contentions.
| |
| : 2. Restrict use of discovery against NRC staff.
| |
| : 3. Restrict use of cross-examination during hearings.
| |
| : 4. Allow Summary Disposition of contentions anytime during the licensing proceedings.
| |
| : 5. Limit the scope of issues that could be appealed.
| |
| All these proposals minimize the role and effect of intervenors during licensing proceedings.
| |
| Raising admissions criteria means the intervenor basically must prove his case in advance. As the rules are now, intervenors can hardly get NRC staff reports; comments on license applications are generally not available.
| |
| This proposal would keep safety information from being brought forward to protect -the public.
| |
| By restricting the use of discovery against - the NRC staff, the public
| |
| - would have to take the NRC at its word. Under current law, the NRC staff
| |
| _can be forced to justify its conclusions.
| |
| Restricting the use of cross-examination means that intervenors would have to obtain~pecial permission from the heating judg~ in order to cross-examine witnesses. "' . Fa ~e _ t ,tl _face confrontation is the people's tool for getting at facts behind an applicant's claims, ---
| |
| Allowing Summary Disposition at anytime is a blatant disregard for public input. Potentially,all of an intervenors contentions could be dismissed even before any hearing took place.
| |
| Finally, limiting the scope -of issues that could be appealed prevents _
| |
| intervenors with interests in another party's contentions from- contributing -
| |
| to the hearing process.
| |
| Intervenors are voices of concern for public safet y , a matter which the NRC continues to disregard.
| |
| We oppose these rule changes for the harm they do to public participation.
| |
| Does the NRC wish to be autonomous? If so, they will surely be held accountable when safety measures prove insufficient in American nuclear power plants. *
| |
| ~~-h~~~P-<J-:k ~~
| |
| i:; ~ IO O 'fo ~ , _,_.__,- ~
| |
| <<~ o(.-h~
| |
| fa"-<J Yours truly,
| |
| ~~, f ~~~~~
| |
| ~~Jr.-~-~-;b~~ ' 3 , V ~ -ct1~
| |
| F-J. d~ - ~ ,./ ~ ~ ~ I IY1A- 01 '1 J1)
| |
| | |
| ,' . t-liJClEAR REGULATORY C6MMfS51 POCKETING & SE" '!Cf SE°CTION "FFICE OF TL: ~EGETA~Y OF T!-lt COili I . I N Copies Rec , ~* ,c 1 Add' I Co;::* *:; -.
| |
| pecial Di st r'' " * ,
| |
| | |
| Docketing & Service Branch DOC. KETE.i '
| |
| * US NHC Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 ~86 SEP 25 P2 :53 DOCKET# 50-443/50-4440L OFFI CE Or 5:: nt :Ai-' ':'
| |
| DOCK ET ING t, ~E~VlrF BRA NCH
| |
| | |
| ==Dear Sir:==
| |
| | |
| This letter concerns the proposed rule changes in licensing procedures for nuclear power plants. It is clear that these proposed changes are designed to get the public otit of the licensing process and to speed up licensing of nuclear power plants in the United States, this democratic country. We are aware that these proposals would:
| |
| : 1. Raise admissions criteria for contentions.
| |
| : 2. Restrict use of discovery against NRC staff.
| |
| : 3. Re§trict use of cross-examination during hearings.
| |
| : 4. Allow Swnmary Disposition of contentions anytime during the licensing proceedings.
| |
| : 5. Limit the scope of issues that could be appealed.
| |
| All these proposals minimize the role and effect of intervenors during licensing proceedings.
| |
| Raising admissions criteria means the intervenor basically must prove his case in advance. As the rules are now, intervenors can hardly get NRC staff reports; comments on license applications are gen erally not available.
| |
| This proposal would keep safety information from being brought forward to protect the public.
| |
| By restricting the use of discovery against the NRC staff, the public wou ld have to take the NRC at its word. Under current law, the NRC staff -
| |
| can be forced to justify its conclusions.
| |
| Restricting the use of cross-examination means that intervenors would have to obtain special permission from the hea rin g judge in order to cross-examine witnesses. Face to face confrontation is the people's tool for ge ttin g at facts behind an applicant's claims.
| |
| Allowing Summary Disposition at anytime is a blatant disregard for public input. Potentially,all of an intervenors contentions could be dismissed even before any hearing took place. ~
| |
| Finally, limiting the scope of iss ue s that could be appealed prevents intervenors with interests in ano ther party's contentio ns from contributing to the hearing process.
| |
| Intervenors are voices of concern for public safety, a matter which the NRC continues to disregard.
| |
| We oppose these rule chan g es for the harm they do to public participation.
| |
| Does the NRC wish to be autonomous? If so, th ey will surely be held accountable wh~n safety measures prove insufficie nt in Am erican nuclear power plants. *
| |
| | |
| * §_ f{UClfAR ~~GULA TO h -CKETING OFFl'.:r: .
| |
| ; Tf Post~rk L.
| |
| Copie:s :~ *
| |
| ~Ir Add' t Cor ..
| |
| Spe6-l.;I D,< 1 *
| |
| * 1 41
| |
| | |
| Docketing & Service Branch DOtK[T [r,
| |
| :.JS NHC Secretary of the Connnission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 "86 SEP 25 P2 :51 DOCKETifa 50-443/50-4440L
| |
| \
| |
| | |
| ==Dear . Sir:==
| |
| | |
| This letter concerns the proposed rule changes in licensing procedures for nuclear power plants. It is clear that these proposed changes are designed to get the public out of the licensing process and to speed up licensing of nuclear power plants in the United States, this democratic country. We are aware that these proposals would:
| |
| : 1. Raise admissions criteria for contentions.
| |
| : 2. Restrict use of discovery against NRC staff.
| |
| : 3. Restrict use of cross-examination during hearings.
| |
| : 4. Allow Summary Disposition of contentions anytime during the licensing proceedings.
| |
| : 5. Limit the scope of issues that could be appealed.
| |
| All these proposals minimize the role and effect of intervenors during licensing proceedings.
| |
| Raising admissions criteria means the intervenor basically must prove his case in advance. As the rules are now, intervenors can hardly get NRC staff reports; comments on license applications are generally not available.
| |
| This proposal would keep safety information from being brought forward to protect *the public.
| |
| By restricting the use of- discovery against the NRC staff~ the public would have to take the NRC at its word. Under current law, the NRC staff can be forced to justify its conclusions.
| |
| Restricting the use of cross-examination means that intervenors would have to obtain special permission *from the hearing judge in order to cross-examine witnesses. Face to face confrontation is the people's tool for getting at facts behind an applicant's claims.
| |
| Allowing Summary Disposition at anytime is a blatant disregard for public input. Potentially,all of an intervenors contentions could be dismissed even before any hearing took place.
| |
| Finally, limiting the scope of issues that could be appealed prevents
| |
| -C
| |
| ~
| |
| intervenors with interests in another party's contentions from contributing to the hearing process.
| |
| Q.
| |
| Cl)
| |
| Intervenors are voices of concern for public safety, a matter which the NRC continues to disregard. ' .
| |
| We oppose these rule changes for the harm they do to public participation.
| |
| Does the NRC wish to be autonomous? If so, they will surely be held accountable when safety measures prove insufficient in American nuclear power plants.
| |
| * i l;
| |
| Yours truly, I
| |
| /!S,,u-6a.ra.-#sI', t..kA-
| |
| . I 1 f//.fz. 1-/adu '#n-..s::r A_ ____ ,L_ ** - ~ ~ ..d..t,_ _ .,,,..,1: .,,::,
| |
| | |
| IJ. S. NUCLEAR p_c ,
| |
| DOCKETING OF FIC~
| |
| OF Postm,.rk r' Co ric, " ~
| |
| I Ad d' I Cop*
| |
| . 4 ---
| |
| Speci al o; 'r
| |
| | |
| Docketing & Service Branch Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 .86 SEP 24 P5 :Q4 DOCKET# 50-443/50-4440L OFF ICE c::: Sl t-t.'AkV DOC KET ING t~ Sfrl VIC: f BRANCl-i n*e ar Sir:
| |
| This letter concerns the proposed rule changes in licensing procedures for nuclear power plants. It is clear that these proposed changes are designed to get the public out of the licensing process and to speed up licensing of nuclear power plants in the United States, this democratic country . We are aware that these proposals would:
| |
| : 1. Raise admissions criteria for contentions.
| |
| : 2. Restrict use of discovery against NRC staff.
| |
| : 3. Restrict use of cross-examination during hearings.
| |
| : 4. Allow Summary Disposition of contentions anytime during the licensing proceedings.
| |
| : 5. Limit the scope of issues that could be appealed.
| |
| All th ese proposals minimize the role and effect of intervenors during licensing proceedings.
| |
| Raising admissions criteria means the intervenor basically must prove his case in advance. As the rules are now, intervenors can hardly get NRC staff reports; corrnnents on license applications are generally not available.
| |
| This proposal would keep safety information from being brought forward to protect the public.
| |
| By restricting the use of discovery against the NRC staff, the public
| |
| _,would have to take the NRC at its word. Under *current iaw; the NRC staff
| |
| 'c an be forced to justify its conclusions.
| |
| 1 Restricting the use of cross-ex amination means that intervenors would h ave to obtain special permission f rom the hearing judge in order to cross-examine witnesses. Face to face confrontation -is the people's tool for gett i ng at facts behind an applicant's . claims.
| |
| Allowing Summary Disposition at anytime is a blatant disregard for public input. Potentially,all of an intervenors contentions could be dismissed even -
| |
| ~=
| |
| before any hearing took place.
| |
| Finally, limiting the scope of issues that could be appealed prevents i ntervenors with interests in another party's contentions from contributing pf ,.
| |
| to the hearing process.
| |
| Intervenors are voices of concern for public safety, a matter which the NRC continues to disregard.
| |
| We oppose these rule changes for the harm they do to public participation. "t;j
| |
| . L Does the NRC wish to be autonomous? If so, they will surely be held accountable ro
| |
| (.)
| |
| when safety measures prove insufficient in American nuclear power plants.
| |
| * E "O
| |
| (!)
| |
| OJ:*
| |
| "O
| |
| (!)
| |
| ~
| |
| 0 C
| |
| .::::c 0
| |
| | |
| U.S. NUCLEAR R~~ 1 IT RY COMMISSIO~
| |
| DOCKHING & SE :') " . SECT ION OF
| |
| * 0 ~ T 1Y 0 Tq ro, ,i* . ...,N Doc11mle:,1t "., tist ics
| |
| ~tmerk Date ies Roe
| |
| _2/4>> /
| |
| I I Copin~ n.,.- r* -*u::ed -- --
| |
| ':1 '1 1 Distributio:i
| |
| | |
| i,l()Cf([f (Mllill UOPJ)IS) 1111 PR - ' .
| |
| ~
| |
| (!__µ (51 p;eJ4~~5") ,
| |
| DOCK ET ED Septerrber 19, 1986 USNRC
| |
| '86 SEP 24 PS :QQ
| |
| [)ocketing & Service Branch Sec r etary of the Onmission OFFI CE CF SL n, ,. " y U.S. Nuclear Regulatory Cannission DOCKET ING \ s[ **v1cr BRAN CI-J .
| |
| Washington, D.C. 20555 Re: C>ocket ll50-443/50-4440L This letter concerns the proposed rule changes in licensing procedures for nuclear power plants . It is clear that these proposed changes are designed to get the public out of the licensing process and to speed up licensing of nuclear power plants in the United States, this derrocratic country . We are aware that these proposals would:
| |
| (1) Raise adnissions criteria for contentions.
| |
| (2) Restrict use of discovery against~ staff.
| |
| (3) Restrict use of cross-examination during hearings.
| |
| (4) Allow SLmIBry Disposition of contentions anytirre during the licensing proceedings.
| |
| (5) Limit the scope of issues that could be appealed .
| |
| All these proposals minimize the r ole and effect of intervenors during licensing proceedings .
| |
| Raising adnissions criteria rreans the intervenor basically rrust prove his case in advance. As the rules are now, inte r veno r s can hardly get~ staff reports; canrents on license a pplications a r e generally no t available . Th is pr oposal would keep safety inforrration fran being brought forward to protect the public .
| |
| By restricting the use of discovery against the~ staff, the pub lic would have to t ake the r-.RC at its word . Under current law, the~ staff can be forced to justify its conclusions .
| |
| Restricting the use of cross-examination rreans that intervenors would have to obtain special permission fran the hearing judge in order to cross-examine witnesses . Face - to - face confrontation is the people's tool for getting at facts behind an applicant's claims.
| |
| Allowing SLITTIBry Disposition at anytirre is a "blatant" disregard for public input. Potentially, all of an intervenor's contentions could be dismissed even before any hearing took place .
| |
| Finally, limiting the scope of issues that could be appealed prevents intervenors with interests in another party's contentions fran contributing to the hearing process.
| |
| Acknowledged by car9.~~. ~. ~..~.~. **m'III
| |
| : u. S. NUCLEA~ ( Of.',A:SSI DOCKET!**-:; *,\..,.Ii- ;
| |
| :r C
| |
| C
| |
| ,ostmark D;it opies P.. ~c * ,
| |
| Add' I Cc-:-i , n
| |
| ' ec:ial Distr, io-i
| |
| | |
| Docketing & Service Branch U.S. Nuclear Regulatory Cmrrission SeptEITber 19, 1986 2
| |
| Intervenors are voices of concern for public safety -- a rratter which the ~C continues to disregard.
| |
| We oppose these rule changes for the harm they do to public part1c1pation.
| |
| Does the ~C wish to be autonarous? If so, they will surely be held accountable when safety rreasures prove insufficient in hrerican Nuclear power plants.
| |
| Sincerely, R. Chatigny
| |
| /jc cc: President Ronald Reagan Senator Edward M. Kennedy Senator John F. Kerry Congressrran Nicholas l'v\3.vroules Congressrran Edward l'v\3.rkey
| |
| ~3 Washington Street Newburyport, Ml\ 01950
| |
| | |
| DOCK[ f EC Docketing & Service Branch US NHC Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 SEP 23 P4 ;57 DOCKET# 50-443/50-4440L OF S:. Li':L 1/,t, Y TIN G & SE VIC f BRANCH .
| |
| | |
| ==Dear . Sir:==
| |
| | |
| This letter concerns the proposed rule changes in licensing procedures for nuclear power plants. It is clear that these proposed changes are designed to get the public out of the licensing process and to speed up licensing of nuclear power plants in the United States, this democratic country. We are aware that these proposals would:
| |
| : 1. Raise admissions criteria for contentions.
| |
| : 2. Restrict use of discovery against NRC staff.
| |
| : 3. Restrict use of cross-examination during hearings.
| |
| : 4. Allow Summary Disposition of contentions anytime during the licensing proceedings.
| |
| : 5. Limit the scope of issues that could be appealed.
| |
| All these proposals minimize the role and effect of intervenors during licensing proceedings.
| |
| Raising admissions criteria means the intervenor basically must prove his case in advance. As the rules are now, intervenors can hardly get NRC staff reports; comments on license applications are generally not available.
| |
| This proposal would keep safety information from being brought forward to protect *the public.
| |
| By restricting the use of discovery against the NRC staff, the public would have to take the NRC at its word. Under current law, the NRC staff can be forced to justify its conclusions.
| |
| Restricting the use of cross-ex amination means that intervenors would have to obtain special permission from the hearing judge in order to cross-examine witnesses. Face to face confrontation is the people's tool for getting at facts behind an applicant's claims. ~.
| |
| Allowing Summary Disposition at anytime is a blatant disregard for public input. Potentially,all of an intervenors contentions could be dismissed even before any hearing took place.
| |
| Finally, limiting the scope of issues that could be appealed prevents intervenors with interests in another party's contentions from contributing to the hearing process.
| |
| Intervenors are voices of concern for public safety, a matter which the NRC continues to disregard.
| |
| We oppose these rule changes for the harm they do to public participation.
| |
| Does the NRC wish to be autonomous? If so, they will surely be held accountable when safety measures prove insufficient in American nuclear power plants.
| |
| * truly,
| |
| | |
| J. S. NUCLEAR REG V1AT0RY COMMISSIO~
| |
| DOCKET l"r; :-:.. $E VI c~ sE°r:T 'ON OFF *-- "'= . ,
| |
| * e rr /\PY C -*
| |
| Postm rk "
| |
| Copies i Add'I c . .
| |
| Sp cia! o*
| |
| | |
| .,,.M:.
| |
| IJ8Cffl (j'/
| |
| . ~~~ . ~
| |
| '4 5 OOl KE l E['
| |
| ~S NHC Docketing & Se rvice Branch Sec r eta r y of the Commission U.S. Nuclear Reg ulatory Commission Washington, D.C. 20555 DOCKET# 50-443/50-4440L
| |
| | |
| ==Dear Sir:==
| |
| | |
| This letter concerns the proposed rule changes in licensing procedures for nuclear power plants. It is clear that these proposed changes are designed to get the public out of the licensing process and to speed up licensing of nuclear power plants in the United States, this democratic country. We are aware that these proposals would:
| |
| : 1. Raise admissions criteria for contentions.
| |
| : 2. Restrict use of discovery against NRC staff.
| |
| : 3. Restrict u se of cross-examination during hearings.
| |
| : 4. Allow Summary Disposition of contentions anytime during t he licensing proceedings.
| |
| : 5. Limit the scope of issues that could be appealed.
| |
| All these proposal s minimize the role and effect of intervenors during licensing proceedings.
| |
| Raising admissions criteria means the intervenor basically mus t prove his case in advance, As the rul e s a re now, intervenors can hardly ge t NRC staff reports; cormnents on license applications are gene rally not ava ilable .
| |
| This proposal would keep safety information from being brought forward to protect *the pub lie.
| |
| By restricting the use of discovery against the NRC staff, the public would have to take the NRC at its word . Under current law, the NRC staff can be forced to justify its conclusions .
| |
| Restricting the use of cross -e xaminat ion means that intervenors would have to obtain special permission from the hearing judge in order to cross -
| |
| examine witnes s es . Face to face confrontation is the people's tool for getting at facts behind an applican t's claims.
| |
| Allowing Summary Disposition at anytime is a blatant disregard for public input. Potentially,all of an intervenors contentions co u ld be dismissed even before any hearing took place.
| |
| Finally, limiting the scope of issues that could be appealed prevents intervenors wit h in terests in anothe r party's contentions from contributing to the hearing process.
| |
| Intervenors are voice s of concern for publ ic safety, a matter which the NRC continues to disregard . .
| |
| We oppose t he se rule changes for the harm the y do to public participation.
| |
| Does the NRC wish to be autonomous? If so, they will surely be held accountable when safety me asu res prove insufficient in American nuclear power plants.
| |
| * Yours truly,
| |
| ~ M .~~ \Y\
| |
| 1-/,o/ ~~
| |
| ' ; t ~ I ~ . 0J/>y{)
| |
| | |
| D.S. NUCl EA"! ~~r* ~~ 0 *v <"OMMISS ION DOCKETi~'G , ', f~ ~ -r. ~fCTION O ff E r
| |
| ( '* .,
| |
| Pos tmar' C:opic*
| |
| Add' peci l
| |
| | |
| /9/ ;rr?
| |
| OOCKETE [!
| |
| Docketing & Service Branch US NHC Secretary of the Conn:nission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 "86 SEP 23 P4 :50 DOCKED'/ 50-443/50-4440L OFF ICE OF St 1~1H t< y OOCKETI Nli & S[RV ICf.
| |
| BRANCH Jj*e ar Sir:
| |
| This letter concerns the proposed rule changes in licensing procedures for nuclear power plants. It is clear that these proposed changes are designed to get the public out of the licensing process .and to speed up licensing of nuclear power plants in the United States, this democratic country. We are aware that these proposals would:
| |
| : 1. Raise admissions criteria for contentions.
| |
| : 2. Restrict use of discovery against NRC staff.
| |
| : 3. Restrict use of cross-examination during hearings.
| |
| : 4. Allow Summary Disposition of contentions anytime during the licensing proceedings.
| |
| : 5. Limit the scope of issues that could be appealed.
| |
| All these proposals minimize the role and effect of intervenors during licensing proceedings.
| |
| Raising admissions criteria means the intervenor basically must prove his case in advance. As the rules are now, intervenors can hardly get NRC staff reports; comments on license applications are generally not available.
| |
| This proposal would keep safety information from being brought forward to protect the public.
| |
| By restricting the use of discovery against the NRC staff, the public would have to take the NRC at its word. "Under 'current law, . the NRC staff can be forced to justify its cone lusions. *'
| |
| Restricting the use of cross-e xamination means that intervenors would have to obtain special permission from the hearing judge tn order to cross-examine witnesses. Face to face confrontation is the people's tool for getting at facts behind an appli~ant's claims~ -
| |
| Allowing Summary Disposition at anytime is a _blatant disregard for public input. Potentially,all of an intervenors contentions could be dismissed even before any hearing took place.
| |
| Finally, limiting the scope of issues that could be appealed prevents intervenors with interests in another party's contentions from contributing to the hearing process.
| |
| Intervenors are voices of concern for public safety, a matter which the NRC* continues to disregard.
| |
| We oppose these rule changes for the harm they do to public participation.
| |
| Does the NRC wish to be autonomous? If so, they will surely be held accountable when safety measures prove insufficient in American nuclear power plants.
| |
| * U. S. NUCLL R . *: .. ' '* *.1 COMMISSION DOCKET l~!G - ::::'cTION OH . .'(
| |
| (
| |
| Postmar!. **
| |
| Copie~
| |
| Add'I Special
| |
| | |
| Docketing & Service Branc h Se cr e tary of the Commi ss ion U.S . Nucle a r Re g ulator y Commission Washing ton, D.C. 20555 DOCKET# 50-443/50-4440L OFF ICE. Of- _: '~* ,. hi<
| |
| * OOCK ETING & ~.i:.PV ICf.
| |
| BR.A NUl
| |
| | |
| ==Dear Sir:==
| |
| | |
| This letter concerns the proposed rule changes in licensing procedures for nuclear power plants. It is clear that these proposed changes are designed to get the public out of the licensing process and to speed up licensing of nuclear power plants in the United States, this democratic country. We are aware that these proposals would:
| |
| : 1. Raise admissions criteria for contentions.
| |
| : 2. Restrict use of discovery against NRC staff.
| |
| : 3. Restrict use of cross-examination during hearings.
| |
| : 4. Allow Summary Disposition of contentions anytime during the licensing proceedings.
| |
| : 5. Limit the scope of issues t ha t could be appealed.
| |
| All these proposals minimize the role and effect of intervenors during licensing proceedings.
| |
| Raising admissions criteria means the intervenor basically must pr ove his case in ad va nce. As the rules are now, intervenors can hardly g et NRC staff reports; comments on license applications are genera lly not available.
| |
| This proposal would keep safety information from being brought forward to protect *the public.
| |
| By restrictin g the use of discovery against the NRC staff, the public would have to ta ke the NRC at its word . Under current law, the NRC staff can be forced to justify its conclusions.
| |
| Restricting the use o f cross-e x amina tion means that intervenors would have to obtain speci a l permission from the hearing jud g e in order to cross-examine witnesses. Face to face confrontation is the people's tool for getting at facts behind an applicant's claims.
| |
| Allowing Summary Disposition at anytime is a blatant disregard for public input. Potentially,all of an intervenors contentions could be dismissed even befo re any hearing took place.
| |
| Finally, limiting the scope of issues that could be appealed pre vent s intervenors with interests in an other party 's contentions from contributing to the hearing process.
| |
| Intervenors are voices of conce rn for public safety, a matter which the NRC continues to disre ga rd . .
| |
| We oppose these rule chan g es for t h e harm they do to p ub lic particip ation .
| |
| Does the NRC wish to be autonomous? If so, they will surely be held accountable when safety measures prove insufficient in American nuclear power plants.
| |
| * SEP 2 3 1986 byc:ard . **.**** *** -.. ...........
| |
| | |
| JJ. S. NUCLEAR -
| |
| DOCKET!
| |
| OFFI 0 .
| |
| Posrm t (opies r:
| |
| rl\dd' I C Special D ,
| |
| | |
| DOCKET Er!
| |
| USNHC SeptEITber 19, 1986 0
| |
| 86 SEP 22 P3 :51
| |
| [)ocketing & Service Branch Secretary of the Ccmnission U.S. Nuclear Regulatory Ccmnission Washington, D.C. 20555 Re: [)ocket #50-443/50-4440L This letter concerns the proposed rule changes in licensing procedures for nuclear power plants. It is clear that these proposed changes are designed to get the public out of the licensing process and to speed up licensing of nuclear power plants in the United States, this derocratic country. We are aware that these proposals would:
| |
| 9 (1) Raise acinissions criteria for contentions.
| |
| (2) Restrict use of discovery against WC staff.
| |
| (3) Restrict use of cross-examination during hearings.
| |
| (4) Allow Sunnary Disposition of contentions anytirre during the licensing proceedings.
| |
| (5) Limit the scope of issues that could be appealed.
| |
| All these proposals minimize the role and effect of intervenors during licensing proceedings.
| |
| Raising acinissions criteria rreans the intervenor basically rrust prove his case in advance. As the rules are now, intervenors can hardly get WC staff reports; canrents on license applications are generally not available. This proposal would keep safety inforrration fran being brought forward to protect the public.
| |
| By restricting the use of discovery against the WC staff, the public would have to take the WC at its word. Under current law, the~ staff can be forced to justify its conclusions.
| |
| Restricting the use of cross-examination rreans that intervenors would have to obtain special permission fran the hearing judge in order to cross-examine witnesses. Face-to-face confrontation is the people's tool for getting at facts behind an applicant's claims.
| |
| Allowing Sunrary Disposition at anytirre is a "blatant" disregard for public input. Potentially, all of an intervenor's contentions could be d i smissed even before any hearing took place.
| |
| Finally, limiting the scope of issues that could be appealed prevents intervenors with interests in another party's contentions fran contributing to the hearing process.
| |
| _ SEP 2 3 1986 ref. *tiQI; I ill it J.111 alil'
| |
| | |
| Y. . 'UCitAR R .,.. W1sl0 17 ECTION OCKETING & -
| |
| OFFICE r
| |
| * r \RY OF * ,N 6st"n3'*k v Copi s Rec.
| |
| dd' I Co .
| |
| C I t> ~
| |
| ,;;;:m,rar...:-.
| |
| | |
| Docketing & Service Branch U.S. Nuclear Regulatory Cmmission Septarber 19, 1986 2
| |
| Intervenors are voices of concern for public safety -- a rm.tter which the ~C continues to disregard.
| |
| We oppose these rule changes for the harm they do to public participation.
| |
| Does the~ wish to be autonamus? If so, they will surely be held accountable when safety measures prove insufficient in Prrerican Nuclear power plants.
| |
| /de cc: President Ronald Reagan Senator Edward M. Kennedy Senator John F. Kerry Congressrran Nicholas Mavroules Congressrran Edward Markey 320 Lafayette Road Salisbury, rv¥\. 01950-1233
| |
| | |
| JOCKII.... ""
| |
| ~~~~ @
| |
| T Ef '
| |
| U', NHC GPU Nuclear Nuclear 100 Interpace Parkway Parsippany, New Jersey 07054
| |
| .86 SEP 22 P3 :51 201 263-6500 TELEX 136-482 Writer's Direct Dial Number OFF ICt. i,* .: , , ,,r't OOCK ET l~lu t, .,; r* VIC f
| |
| !3 RANC~ September 15, 1986 JRT 148 Mr. Samuel J. Chilk Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, DC 20555
| |
| | |
| ==Dear Mr. Chilk:==
| |
| | |
| ==Subject:==
| |
| Request for Comments on Procedure Changes in the Hearing Process Proposed Rule The staff of GPU Nuclear Corporation herewith submits comments on the subject proposed rule. Comments were requested in a July 3, 1986 Federal Register notice (51 FR 24365).
| |
| As a general comment, we believe this proposed rule appears to achieve its purpose of improving the licensing process for nuclear power plants , however we would like to make two specific comments and these are put forth below.
| |
| First, although the requirement to have a cross-examination plan is useful, the proposed rule appears to be overly proscriptive in content . Unless there is clear, legal precedent which would allow the NRC to establish a requirement for an intervenor to list questions and anticipated answers as part of a cross-examination plan, these provisions could subject the proposed rule to active opposition, including legal challenge, and delay its implementation.
| |
| We also believe that Commissioner Asselstine's proposal to make a separate determination of a potential intervenor's standing prior to the filing of contentions appears to have some merit and should receive careful consideration by the NRC staff.
| |
| Sincerely,
| |
| &~~~
| |
| J. R. Thorpe ~
| |
| Director-Licensing &
| |
| Regulatory Affairs JRT:RPJ:jh:4010f GPU Nuclear is a part of the General Public Utilities System .SEP 2 3 \986
| |
| ~tedged by caret ** .-.,. ,,. ; , .,. .,**,, , , aw
| |
| | |
| '(I 1e!,a~
| |
| ) l ,PP'f j Scl!dOJ 1j..ll?Wl~Q t
| |
| Ab NC!.:.::;~. f ,
| |
| NOISS IV>i., :)_;
| |
| | |
| DOt.KETEf' US NRC
| |
| ~ b y c : a r d ***
| |
| * u s. ., ON DC 0 ,{
| |
| C, r.,
| |
| p qj;:;--
| |
| Ui.. d /7 -- -
| |
| ~PE. I ..> .i n
| |
| ===--=--=---=-==== --*
| |
| | |
| DOC. KE f!:. D U~NRC
| |
| .86 EP 19 AlO :21 0FF1c£ , Ah Y TOWER LEDGE 8OCKET l*r -, ,
| |
| f ,- vir:r.
| |
| | |
| I.,
| |
| | |
| Docketing & Service Branch Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 DOCKET# 50-443/50-4440L ri'ear Sir:
| |
| This letter concerns the proposed rule changes in licensing procedures for nuclear power plants. It is clear that these proposed changes are designed to get the public out of the licensing process .and to speed up licensing of nuclear power plants in the United States, this democratic country. We are aware that these proposals would:
| |
| : 1. Raise admissions criteria for contentions.
| |
| : 2. Restrict use of discovery against NRC staff.
| |
| : 3. Restrict use of cross-examination during hearings.
| |
| : 4. Allow Summary Disposition of contentions anytime during the licensing proceedings.
| |
| : 5. Limit the scope of issues that could be appealed.
| |
| All these proposals minimize the role and effect of intervenors during licensing proceedings.
| |
| Raising admissions criteria means the intervenor basically must prove his case in advance. As the rules are now, intervenors can hardly get NRC staff reports; comments on license applications are generally not available.
| |
| This proposal would keep safety information from being brought forward to protect the public.
| |
| By restricting the use of discovery against the NRC staff, the public would have to take the NRC at its word. Under current law, the NRC sta,ff 0 can be forced to justify its conclusions.
| |
| Restricting the use of cross-examination means that intervenors would have to obtain special permission from the hearing - judge in order to cross-examine witnesses. Face to face confrontation is the people's _ rool for getting at facts behind an applicant's claims.
| |
| Allowing Summary Disposition at anytime is a blatant disregard for public input. Potentially,all of an intervenors contentions could be dismissed even before any hearing took place.
| |
| Finally, limiting the scope of issues that could be appealed prevents intervenors with interests in another party's contentions from contributing t the hearing process.
| |
| Intervenors are voices of concern for public safety, a matter which the NRC continues to disregard.
| |
| We oppose these rule changes for the harm they do to public participation.
| |
| Does the NRC wish to be autonomous? If so, they will surely be held accountable when safety measures prove insufficient in American nuclear power plants.
| |
| * Yours truly,
| |
| ~ ~
| |
| | |
| Docketing & Service Branch Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 0 86 SEP 19 A10 :20 DOCKET# 50-443/50-4440L OFF ICE rr ~L1... M iAK Y OOCK ETING & S[RVICf.
| |
| BRANC ~
| |
| | |
| ==Dear Sir:==
| |
| | |
| This letter concerns the proposed rule changes in licensing procedures for nuclear power plants. It is clear that these proposed changes are designed to get the public out of the licensing process and to speed up licensing of nuclear power plants in the United States, this democratic country. We are aware that these proposals would:
| |
| : 1. Raise admissions criteria for contentions.
| |
| : 2. Restrict use of discovery against NRC staff.
| |
| : 3. Restrict use of cross-examination during hearings.
| |
| : 4. Allow SUillmary Disposition of contentions anytime during the licensing proceedings.
| |
| : 5. Limit the scope of issues that could be appealed.
| |
| All these proposals minimize the role and effect of intervenors during licensing proceedings.
| |
| Raising admissions criteria means the intervenor basically must prove his case in advance. As the rules are now, intervenors can hardly get NRC staff reports; corrnnents on license applications are generally not available.
| |
| This proposal would keep safety information from being brought f orward to protect *the public.
| |
| By restricting the use of discovery against the NRC staff, the public would h~ve to take the NRC at its word.
| |
| * Under current law, the NRC staff can be ~arced to justify its conclusions.
| |
| Restricting the use of cross-examination means that intervenors would have to obtain special permission from the hearing judge in order to cross-e x amine witnesses. Face to face confrontation is the people's tool for getting at facts behind an applicant's claims.
| |
| Allowing Summary Disposition at anytime is a blatant disregard for public input. Potentially,all of an intervenors contentions could be dismissed even before any hearing took place.
| |
| Finally, limiting the scope of issues that could be appealed prevents intervenors with interests in another party's contentions from contributing to the hearing process.
| |
| Intervenors are voices of concern for public safety, a matter which the NRC continues to disregard.
| |
| We oppose these rule changes for the harm they do to public participation.
| |
| Does the NRC wish to be autonomous? If so, they will surely be held accountable when safety measures prove insufficient in American nuclear power plants. *
| |
| (/{~~~]~ . . EP 2 2 1986' Acknowllwil8ed by card* ~.* i i I ; i i I I i I i i ill ;Iii'
| |
| | |
| I u s. ~.
| |
| D C
| |
| | |
| 58 Market Street Amesbury, MA 01913 DOlKE1U:
| |
| Docketing & Service Branch !JS NRC Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 "86 SEP 19 AlO :20 DOCKET# 50-443/50-4440L Sept. 16, 1986 OFFI CE Of ::t*,.,t_ i; RY DOCK ETI NG & SERVICf.
| |
| BRA NC~
| |
| Jj*e ar Sir:
| |
| This letter concerns the proposed rule changes in licensing procedures for nuclear power plants. It is clear that these proposed changes are designed to get the public out of the licensing process _and to speed up licensing of nuclear power plants in the United States, this democratic country. We are aware that these proposals would:
| |
| : 1. Raise admissions criteria for contentions.
| |
| : 2. Restrict use of discovery against NRC staff.
| |
| : 3. Restrict use of cross-examination during hearings.
| |
| : 4. Allow Summary Disposition of contentions anytime during the licensing proceedings.
| |
| : 5. Limit the scope of issues that could be appealed.
| |
| All these proposals minimize the role and effect of intervenors during licensing proceedings.
| |
| Raising admissions criteria means the intervenor basically must prove his case in advance. As the rules are now, intervenors can hardly get NRC staff reports ; cormnents on license applications are generally not available.
| |
| This proposal would keep safety information from being brought forward to protect the public.
| |
| By restricting the use of discovery against the NRC staff, the public would have to take the NRC at its word. Under -current - ~aw, - tbe NRC staff ---.
| |
| can be forced to justify its concl usions. '~
| |
| Restricting the use of cross- examination - means that inte t venors would have to obtain special permission from the hearing judge in
| |
| * order to cross-examine witnesses. Face to face *confrontation - is the p~ople's tool for -
| |
| g etting at _facts behind an applicant's claims.
| |
| Allowing Summa ry Disposition at anytime is a blatant disregard for public input. Potentially,all of an intervenors contentions could be dismissed even before any hearing took place .
| |
| Finally, limiting the scope of issues that could be appealed prevents intervenors with interests in another party's contentions from
| |
| * contributing to the hearing process.
| |
| Intervenors are voices of concern for public safety, a matter which the NRC continues to disregard.
| |
| We oppose these rule changes for the harm they do to public participation.
| |
| Does the NRC wish to be autonomous? If so, they will surely be held accountable when safety measures prove insufficient in American nuclear power plants.
| |
| * Yours truly,
| |
| ~ 6 .~ r#'
| |
| Ca rol B. Feingold 4cknowlqed t.y. I U~f~e.~~.J~!~ ..
| |
| | |
| ' I fj I
| |
| U S. N DU C
| |
| | |
| Docketing & Service Branch OO CKET G '
| |
| Secretary of the Connnission USNRC U.S. Nuclear Regulatory Commission Washington, D.C. 20555 '86 SEP 19 AlO :20 DOCKET# 50-443/50-4440L OfF ICt t ::: t *~ht IA h_Y OOC KETIN . & <: ~ 1 VICf.
| |
| 3RANUl
| |
| | |
| ==Dear Sir:==
| |
| | |
| This letter concerns the proposed rule changes in licensing procedures for nuclear power plants. It is clear that these proposed changes are designed to get the public out of the licensing process _and to speed up licensing of nuclear power plants in the United States, this democratic country. We are aware that these proposals would:
| |
| : 1. Raise admissions criteria for contentions.
| |
| : 2. Restrict use of discovery against NRC staff.
| |
| : 3. Restrict use of cross-examination during hearings.
| |
| : 4. Allow Summary Disposition of contentions anytime during the licensing proceedings.
| |
| : 5. Limit the scope of issues that could be appealed.
| |
| All these proposal s min i mize the role and effect of interve nors d uring licensing proceedi ngs.
| |
| Raising admissions criteria means the intervenor basically must prove his case in advance. As the rules are now, intervenors can hardly get NRC staff reports; comments on license applications are generally not available.
| |
| This proposal would keep safety information from being brought forward to protect the public.
| |
| By restricting the use of discovery against . the NRC staff, the public would have to take the NRC at its word. Under current -law,
| |
| * the NRC staff
| |
| * can be forced to justify its conclusions. ~
| |
| Restricting the use of cross-e xamination means that intervenors would have to obtain special permi ssion from the hearing judge in order to cross-examine witnesses. Face to face confrontation is the people's tool for getting at facts behind an applicant's claims.
| |
| Allowing Summary Disposition at anytime is a blatant disregard for public input. Potentially,all of an intervenors contentions could be dismissed even before any hearing took place.
| |
| Finally, limiting the scope of issues that could be appealed prevents intervenors with interests in another party's contentions from contributing to the hearing process.
| |
| Intervenors are voices of concern for public safety, a ma tter which the NRC continues to disregard.
| |
| We oppose these rule changes for the harm they do to public participation.
| |
| Does the NRC wish to be autonomous? If so the will surely be held accountable when safety measures prove insufficient in American nuclear power pans.
| |
| Yours truly,
| |
| ~~~
| |
| SEP 2?.
| |
| \
| |
| d nr le d y card ........ .....,......
| |
| | |
| .J
| |
| ' u 0 (
| |
| o.
| |
| | |
| (ii) "*
| |
| DO CK[ I E.f' Docketing & Service Branch US NRC Secretary of the Connnission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 *86 SEP 19 A10 :20 DOCKETIF 50-443/50-4440L OFFI CE o;: ~l:u,. i..\t<'r DOC KE TING t-t Sf VIC f.
| |
| BRANCH Uear Sir:
| |
| This letter concerns the proposed rule changes in licensing procedures for nuclear power plants. It is clear that these proposed changes are designed to get the public out of the licensing process _and to speed up licensing of nuclear power plants in the United States, this democratic country. We are aware that these proposals would:
| |
| : 1. Raise admissions criteria for contentions.
| |
| : 2. Restrict use of discovery against NRC staff.
| |
| : 3. Restrict use of cross-examination during hearings.
| |
| : 4. Allow Summary Disposition of contentions anytime during the licensing proceedings.
| |
| : 5. Limit the scope of issues that could be appealed.
| |
| All these proposals minimize the role and effect of intervenors during licensing proceedings.
| |
| Raising admissions criteria means the intervenor basically must prove his case in advance. As the rules are now, intervenors can hardly get NRC staff reports; comments on license applications are generally not available.
| |
| This- proposal would keep safety information from being brought forward to protect the public.
| |
| By restricting the use of discovery against the NRC staff, the public would have to take the NRC at its word . - Under current law, the NRC staff can be forced to justify its conclusions.
| |
| Restricting the use of cross-examination means that intervenors would have to obtain special permission from the hearing judge in order to cross-examine witnesses. Face to face confrontation is the people's tool for getting at facts behind an applicant's claims.
| |
| Allowing Summary Disposition at anytime is a blatant disregard for public input. Potentially,all of an intervenors contentions could be dismissed even before any hearing took place.
| |
| Finally, limiting the scope of issues that could be appealed prevents intervenor s with interests in another party's contentions from contributing to the hearing process.
| |
| Intervenors are voices of concern for public safety, a matter which the NRC continues to disregard.
| |
| We oppose these rule changes for the harm they do to public participation.
| |
| Does the NRC wish to be autonomous? If so, they will surely be held accountable when safety measures prove insufficient in American nuclear powe r plants. *
| |
| : r. Roemary S Loveday 1,U N Blvd 35th Street Newbury MA 01950 truly, 4tkm:,,,~ b SEP 2 2 1986 y card . .** -.-.-. *** : a;.VVwJiil
| |
| | |
| ' u
| |
| [,
| |
| | |
| 00 lK[ I H
| |
| * Docketing & Service Branch U5 NRC Secretary of the Corrnnission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 '86 SEP 19 A10 :20 DOCKET4f 50-443/50-4440L OFF ICE Qi- Sf- ,,t t IA KY BOC KETIN G & SfRV ICf.
| |
| BRAN Cl-l
| |
| | |
| ==Dear Sir:==
| |
| | |
| This letter concerns the proposed rule changes in licensing procedures for nuclear power plants . It is clear that these proposed changes are designed to get the public out of the licensing process ~nd to speed up licensing of nuclear power plants in the United States, ' this democratic country. We are aware that these proposals would:
| |
| : 1. Raise admissions criteria for contentions.
| |
| : 2. Restrict use of discovery against NRC staff.
| |
| : 3. Restrict use of cross-examination during hearings.
| |
| : 4. Allow Summary Disposition of contentions anytime during the licensing proceedings.
| |
| : 5. Limit the scope of issues that could be appealed.
| |
| All these proposals minimize the role and effect of intervenors during licensing proceedings .
| |
| Raising admissions criteria means the intervenor basically must prove his case in advance. As the rules are now, intervenors can hardly get NRC staff reports; comments on license applications are generally not available.
| |
| This proposal would keep safety information from being brought forward to protect the public.
| |
| By restricting the use of discovery against the NRC staff, the public would have to take the NRC at its word. Under current law, the NRC staff
| |
| * can be forced to justify its conclusions.
| |
| Restricting the use of cross-e xamination means that intervenors would have to obtain special permission from the hearing judge in order to cross-examine witnesses. Face to face confrontation is the people's tool for getting at facts behind an applicant's claims.
| |
| Allowing Summary Disposition at anytime is a blatant disregard for public input. Potentially,all of an intervenors contentions could be dismissed even before any hearing took place.
| |
| Finally, limiting the scope of issues that could be appealed prevents intervenors with interests in another party's contentions from contributing to the hearing process.
| |
| Intervenors are voices of concern for public safety, a matter which the NRC continues to disregard.
| |
| We oppose these rule changes for the harm they do to public participation.
| |
| Does the NRC wish to be autonomous? If so, they will surely be held accountable when safety measures prove insufficient in American nuclear power plants.
| |
| * Yours truly,
| |
| | |
| 9/;bI -
| |
| 1
| |
| | |
| \ . .* \
| |
| * ~\
| |
| * V *
| |
| * _) '~
| |
| *; ~* - -*
| |
| . '- . . _, . \
| |
| | |
| 0 MISSIO
| |
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| |
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| |
| | |
| lJOCGl ***.
| |
| , aoam...
| |
| JPR*-,q, ,3(1~ ~u 6n
| |
| ( ~d F-,e ff/qqz oornn[ c*
| |
| USNR C SEP 161986 N, 110W y card.... **** * **
| |
| | |
| U.S. UCLE ~fGULA T COMM SSION DOCr"TI ~G &
| |
| D ,
| |
| Postmark at Ccpi ,
| |
| Add'I C Special D1str
| |
| | |
| J
| |
| ~,~efdYrj}ji
| |
| ~M l '1t) ~
| |
| Pamela ti_~pPt._lCd.son 2 Plumbu~W HDowns Newbury, MA 01 950
| |
| -86 SEP 15 P3 :47 September 9, 1986 OFF ICE O* ~b,r: t *,;k Y DOCK ET ING & SU<'V lr:r.
| |
| Nuclear Regulatory Commission BRAN CY Docketing & Service Branch Washington D. C . 20555
| |
| | |
| ==Dear Sirs:==
| |
| | |
| As a resident of Newbury, Massachusetts which lies in close proximity to the Seabrook Nuclear Power Plant, I would like to express my heartfelt (and not uninformed) opinion regarding two issues which you have invited the public to respond to:
| |
| : 1) Do NOT increase the present limits for radiation exposure to workers inside a plant, the public at large and the environment.
| |
| The International Commission on Radiation Protection has recozmnended radiation expo-sure level limits five times lower than pr esent *NRC1-le1ra:i1s. The NRC is mandated to protect the public not the nuclear industry.
| |
| : 2) Do NOT reduce public participation in licensing hearings.
| |
| To do so would go against the grain of American democracy . If a nuclear power plant is to be operating in a heavily congested area (i . e . Seabrook), certainly those people whose health and property stand to be adversely affected have a constitutional right to be heard .
| |
| Thank you for listening .
| |
| Sincerely,
| |
| | |
| i
| |
| , j" 4 *.
| |
| | |
| ::,:--PR--1q ,30 e,,m,,[ @
| |
| c~~i-* ff'qq}lJ Sept. 8, I 986 DOCK[ TU*
| |
| USNRC I
| |
| | |
| ==Dear Sirs,==
| |
| .86 SEP 15 P4 :47 I am in opposition to proposed rule chang6J~Flttle.it ~~-Q.~M:'.J,. y DOCKET ING ,;-,. SER VICf.
| |
| reduce public participation in licensing hearings for8~eiear plants. I am in opposition to changing the rule regarding the limits for radiation exposure to workers inside the plants and the public and enviornment outside of the plants. No chance should be taken with the lives and health of thousands of American citizens everywhere . I imagine that the officials in Russia always mainta ined that their nuclear plants were safe and the citizens in no danger because of safeguards and official regulations - look what happened- to foolishly and stubbornly insist that it won't happen at Seabrook or any other place is
| |
| * **:t; deliberately putting thousands of lives in a very dangerous situation . It is unthinkable.
| |
| Beverly Brown I4 Oakland St .
| |
| Newburyport, Mass.
| |
| 01950 ACl(now
| |
| | |
| ... i,..;. 1 I
| |
| \:
| |
| ......~
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| : v. S. NUCLEAR ;EG::1 ';r}*: --~,,,,P.!SSION 0OC~ETiNG :" .- -: ,*: -:* . : ..... :."N C ,.
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| Postm~r' Copies :*
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| -a6 SEP 12 P2 :59 September 10, 1986 OFF ICE Cf"" :. *~r t :Ah t Director, !ilOCKETIN li r. Srf* VIC: f.
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| Docketing and Service Branch BRA NCH NUCLEAR REGULATORY COMMISSION Washington, D. C. 20555
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| ==Dear Sir:==
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| The rule changes which propose elimination of our participation in nuclear power plant licensing hearings and increase tremendously the radiation limits for public and power plant workers is not in the public interest.
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| R a d ia tion has cle arly b ee n prov en to be h a r mful t o our h ealth. Please work to reduce exposure levels rather than increase them.
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| Since it is us who would be affected by the harmful radiation from a nuclear plant, we should have a say in what we are being exposed to. Isn't that what democracy is all about?
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| Again, I not only oppose these changes, but suggest that the NRC not license any additional electric generating plants which make steam from a dangerous nuclear reaction.
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| Sincerely, Martha Wilson 6 Birch Ridge Road Acton, MA 01720 cc: Senator Edward Kennedy Speaker Thomas O'Neil ted db SEP 1 5 1 .
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| Ycard . .. ....... .:;.-
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| n-.,,,.,1 ..
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| U.S. NUCLEAR REGULATf"l Y COMM 5S DOCKET' G P, C" r r
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| Pos tm *r.
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| Copi Add Spec1a1
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| Georgia Power Company 333 Piedmont Avenue uOCKEJ NU .am pR_1 Atlanta, Georgia 30308 &BilEO D 8Ulf_~P(,I -
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| Telephone 404 526-6526 Mailing Address :
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| C5 / /=£ t:14 ~~i)
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| Post Office Box 4545 DOCKETED Atlanta, Georgia 30302 USNRC Georgia Power LT. Gucwa .86 SEP 11 g\_z *~.Q,rn electnc system Manager Nuclear Safety and Licensing SL-1122-a 2966N September 2, 1986 Mr. Samuel J. Chilk Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Attention: Docketing and Service Branch ColTffllents on Proposed Rules of Practice for Domestic Licensing Proceedings -
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| Procedural Changes to the Hearing Process
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| ==Dear Sir:==
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| On July 3, 1986, the United States Nuclear Regulatory Commission ( NRC 11 11
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| )
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| proposed amending certain provisions of its rules of practice (51 Fed. Reg.
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| 24365, July 3, 1986). Georgi a Power appreciates the effort whichpreceded the Cammi ssion I s five proposed procedural rule changes. Specifically, the Regulatory Reform Task Force, the Senior Advisory Group within the NRC and the Ad Hoc Committee for the review of Nuclear Reactor Licensing Reform Proposals developed, reviewed and analyzed many proposed procedural changes in addition to the five noticed by the NRC.
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| Georgia Power generally supports procedural revisions which decrease the societal cost of adjudicatory proceedings while at the same time assuring that genuine disputes of fact, law or policy are given an appropriate forum and interested parties may participate in the proceedings. The proposed additions to 10 CFR 2.714 are particularly appropriate in this regard.
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| Contentions will be more specifically and fully developed and will not be admitted if merely hypothesized or unsupported. Further, if the contention would not affect the outcome of the proceeding or raises only matters of law, factual hearings would not be required for that particular contention.
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| Georgia Power applauds this type of practical and fair treatment of the contention process. All too often in the past, specious or imaginary SEP 15 i9So cknowtedged by card ***
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| U. S. JC*::* ISSIOH
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| ~ ION V
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| C Poslc 'r' Co,>*c Add Sp ciol
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| Georgia Power A Mr. Samuel J. Chilk Secretary of the Commission September 2, 1986 Page Two allegations, without support to factual, legal or policy bases, have needlessly prolonged the licensing process. As a constructive suggestion, Georgia Power points out that the use of the word "concise" in 10 CFR 2.714(b)(2)(ii) can be misconstrued as requiring brevity. A word or phrase which connotes sufficient detail to inform the reader of the various factual or other bases for the contention may be more appropriate.
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| As with the other proposed revisions, the proposed cross-examination plan requirement (10 CFR 2.743(b)(2) will enhance the hearing process by adding additional structure to cross-examination. This structure will decrease repetitious or cumulative cross-examination.
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| The proposed changes to 10 CFR 2.749, 2.754 and 2.762 constitute additional amendments which will streamline the hearing process. Georgia Power supports these proposed amendments as well.
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| With respect to the proposals of Commissioner Asselstine, Georgia Power notes that the Commissioner's proposals focus on public participation, including intervention. Specifically, the Commissioner proposes that the process of intervention and filing of contentions be temporally separated, that an early notification be published in the Federal Register upon receipt of a license application, non-timely filings (e.g., late-filed contentions) be examined for admission by balancing factors, contentions be supported by a brief statement of significant facts, and special pre-hearing conferences focus upon the admission or elimination of contentions. As a general proposition, Georgi a Power supports proposed revisions which increase the predictability of the licensing process. The early notification, ostensibly designed to allow informal interchange between interested persons and the applicant, the separation of the intervention and contention submittal and the special pre-hearing conference summary disposition add additional stages in the licensing process. While Georgia Power views the underlying rationales for each of these proposed revisions as commendable, the Company doubts that more meaningful public participation or timely decision-making would result from the proposed revisions.
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| Commissioner Asselstine proposed revision which would add greater rigor to drafting of contentions is along the lines of the revision proposed by the Commission. Georgia Power supports the intent of both of these proposals, and views the Commission's as preferable. With respect to late-filed contentions, Georgia Power submits that the proposed 2.714(a)(l)(ii) provides too little guidance to the presiding officer or 700775
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| Georgia Power , \
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| Mr. Samuel J. Chilk Secretary of the Commission September 2, 1986 Page Two Board and, for obviously trady filings, fails to place an appropriate burden upon the petitioner. Non-timely filings is an issue which needs addressing by the Commission, however. Perhaps by more fully developing this area in the future, including an el uci dati on of good cause considerations and 11 11 establishment of a rebuttable presumption for obviously tardy filings, the Commission could address Commissioner Asselstine s concerns.
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| 1 Georgi a Power appreciates the opportunity to submit these comments and applauds the Commission's attempts to instill greater regulatory predictability in its processes while assuring full public participation.
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| Sincerely, L. T. Gucwa SHC/mb c: Georgi a Power Company Mr. J. P. O'Reilly Mr. J. T. Beckham, Jr.
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| Mr. H. C. Nix, Jr.
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| GO-NORMS 2966N
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| October 6, 1986
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| .~:1
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| : r. ,. ~i ' ~*
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| NOTE TO RECEIPIENTS OF PR-2 (51 FR 24365)
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| Please note that Comment No. 68 was miscoded. This number will not be used again.
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| Docketing and Service Branch Office of the Secretary of the Commission
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| Kathy Krzcuik Sept. 8, 1986 87 Stewart St.
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| W. Newbury, MA 01985 Nuclear Regulatory Commission Docketing & Service Branch Washington, DC 20555
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| ==Dear Sir:==
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| I would like to go on record as being ve-hemently opposed to the proposed rule changes.
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| The NRC's mandate is to oversee the safety and licensing of nuclear power plants. The proposed changes would be in direct conflict with the safety of plant workers and the general public. Any limitation on public participation in licensing hearings would not be in the public interest. The idea of increasing the limits of radiation levels inside and outside the plants is outrageous. Radiation levels should be lowered, not increased.
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| Copies of this letter have been sent to my Congressmen.
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| Sincerely, SEP i 5 1986
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| I.
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| EGULA O"'Y COMMISSIOS
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| '" WI ""E SE':::T IOt-1 CFF ,. Of TH SE RET . Y Or THc COMMIS,ION Postm k Copie Ad ' I ,.
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| Sp i: , I ,
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| September 5, 1986 '86 SEP -9 A10 :58 Chairman, NUCLEAR REGULATORY COMMISSION Docketing and Service Branch Washington, D.C. 20555
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| ==Dear Mr. Chairman,==
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| I am writing to express my opposition to rule changes which will reduce public participation in licensing hearings and also increase substantially the radiation limits for plant workers and the public. In view of the fact that radiation has been clearly proven to be harmful to health, you should be working to reduce
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| * exposure levels rather than increase them. Further, since it is the people who would be affected by the harmful radiation from a steam plant which has its water heated by a nuclear reaction, we should have a say in what we are being exposed to. That is what democracy is all about.
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| Again, I not only oppose these changes, but seriouly suggest that THE NRC not license any more electric generating plants which make steam from a dangerous nuclear reaction.
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| 12 Annapolis Way
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| * Plum Island, MA 01950 cc: Senator Edward F. Kennedy Senator John F. Kerry Cong. Nicholas Mavroules Speaker O'Neill 210 SEP~
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| . rd .********* -=,,-
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| os k 9/4/f'~I d 'I l 7
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| :,::PR -1 ~3c1~~1 c~~ !=~ 5"/9qz)
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| Martha I. Morse OOCKET EP ~
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| 66 Conrad Roa d USNR C Melrose, Massachusetts O2176 "86 SEP -9 A10 :47 September 6, 1986 Nuclear Regulatory Commission Docketing & Service Branch Washington, D.C. 20555
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| ==Reference:==
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| Proposed Rule Changes Gentlemen:
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| Your proposed rule changes which would reduce public participation in licensing hearings and increase the "acceptable" radiation exposure limits ten-fold make it clear that your only concern is to protect the interests of nuclear power investors at the expense of public safety.
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| Restricting public participation in the licensing procedure would insure that no debate takes place and no safety-related information is made available to the public. Your current limits on radiation exposure are five times higher than those recommended by the International Commission on Radiation Protection. The proposed increase would put your limits fifteen times higher. This constitutes gross neglect of your mandate to protect the safety of the public.
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| Recent world events should have made us more aware of the need for caution and responsibility in licensing new plants. Instead you are reacting with proposals to protect the industry. Your responsibility is to regulate the industry - not to promote it.
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| Sincerely, cc: Senator Edward Kennedy Senator John Kerry Congressman Edward Markey SEP 9 1986 Acknowt d y ca rd . ***** ,* *..-r.,,* ... , * ,,_.
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| e.s. NUO.EAR DOCKETING ~
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| OFFICE C' RECIII PN;{Y COMMISSION OF Tl-< .: ,
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| 0.5 NUCl.EAR. REGUlAT Y COMMISSION DOCKETIN E SE'cTION OFFl<'E T RY 0 T ON Ooc Postmark D .*
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| t DOlKE TE C1 USNRC Westinghouse Power Systems
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| * SEP -B P\Z *5ti.Jclear Technology Electric Corporation 86 * ~ystems D1v1s1on Box 355 OFF ICE OF 5:. ~r,r._fAR,'i'_Pittsburgh Pennsylvania 15230-03 55 DOCKETING & St ! vier BR ANC~ .
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| NS- NRC- 3159 September 4, 1986 Secretary of the Commission U.S. Nuclear Regulatory Commission
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| * Washington, D.C . 20555 Attn: Docketing and Service Branch Re: Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Heari ng Process (51 FR 24365)
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| By date of September 2, 1986, Westinghouse Electric Corporation submitted comments (eight pages) responding to the Commission request. Attached is a page 7 which should be substituted for the original page 7. The original page seven has a text discontinuity which has been corrected in the attachment. We apologize f or the inconvenience .
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| Very truly yours,
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| * 'E~~~
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| Nuclear Safety Department k
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| Attachment SEP 9 1986 AdfflgWtedged by card . * ~. *
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| ' u.
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| I s. NI 0 RI' COMM ISSION I DC !"i CH l nt~Y IUN 0 *
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| ~fff 3
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| r Secretary to the Commission Page 7.
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| : l. 2. 714 (b) (1). strike the 'WOrds "in the hearin;J" at the em. of the first sentence. Until such tine as the contentions are admitted, it isn't clear that there will be a hearin;J, as to that petitioner.
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| : 2. 2.714(d) (2). '1he larguage as proposed is not clear. Reword it as follows: "(2) '1he admissibility of a contention, refuse to admit a contention where *** ".
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| : 3. 2. 714 (d) (2) (i) * 'Ihis larguage urrlercuts the intent of the first sentence. For a detennination of whether the contention satisfies the requirements of (b) (2) does not require a test of "reasonable mirrls to inquire further as to the validity of its contention". 'Ihat is an inquiry to the merits which can only be resolved
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| * on an evidential record after a rulin; of admissibility. '!his is what Boards are doin;J ro<< in adrnittin;J vague, generalized arxl l.mfocused contentions, saroohc::M hopin;J that an evidential record will develop that justifies the admissibility of the contention. '!his is a cart before the horse situation which should be stowed* If the proposed (b) (2) is strictly follc:Med by the Boards, then the evidential record will not later have to justify the Board decision to admit an othel:wise inadmissible contention.
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| : 4. 2. 720(h) (2) (i). '!be test of relevan:::e should be the relevan:::e to the admitted contentions. 'Ihe NRC Staff's position in any proceedirq is one of p.lblic health am safety arxl the camoon defense arxl security. In the day to day tedium of the p.lblic hearin;J process, the Boards often loose sight of the :furrlamental. staff position to protect the p.lblic health arxl safety. 'lberefore, the third sentence should be changed to read: "SUch interrogatories may seek to elicit factual infonnation already developed by the NRC Staff that is reasonably relevant to the contention, includin;J *** 11
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| * For similar reasons, change the last sentence to read as follows: (B) Perfonnance of additional research or analytical
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| 'WOrk beyorxl that already carried cut by the NRC Staff."
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| B. camnissioner Asselstine' s Proposal..
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| In view of the total disparity between this prc:p,sal arxl the reality of ASIB p.lblic hearin;Js, it would be inappropriate to offer any '"WOrd smithin;J" changes. To brin;J this proposal into focus arxl to reaffinn the Commission's prior rejection of this prcp:,sal, reliance is place'i on the discussion in the General cx::munents set forth above.
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| Again, Westin;house Electric 0:>rporation appreciates the opportunity Revised 9/4/86
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| I.S.E.A.
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| 53 West Jackson Boulevard, Room 343
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| * Chicago, Illinois 60604 * (312) 663-1667 OFF ICE Of SE.L. ,,:.._t ;., K_Y DFF IC ( Or OOCKETING & SUN IC!. DOCK ETING.,, ERV!C f.
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| Secretary of the Commission BR ANCH A.ugus t 19, 1986 BR ANCH U.S. Kuclear Regulatory Comm ission Washington D.C. 20555 At tn: Docketing and Service Eran ch
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| ==Dear Er. Secretary:==
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| It has co me to our attention that th e KRC plans to resubmit slightly modified versions of a series of rul e chan g es proposed in .
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| 1984. It appears that once again these rule changes are being sub-mitted under the g uise of 'reform' which they clearly are not.
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| * To reduce the role of public intervention in the licensing process is not reform. The proposals you have mad e would give a decided advantage to the license app licant in the hearing process. In view of past decisions by the NRC we 'f eel th ese latest proposals reflect an overall trend towards a sympathetic, if not vicarious, relation-ship between the NRC and th e nucl ea r industry. In that sheilding the nuclear industry fro m publi~ scrutiny is neither wise,nor safe, nor the intended function of the NRC,we feel you should reconsider your decision to propose licinsing hearing rule changes.
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| We sugg est you r evise or reject the following proposals for the following reasons:
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| : 1) Admission of Contentions (Section 2.714)
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| Because of the vast disparity of resources and preparation time that exists between the license applicant and public intervenors
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| * raising the threshold of admissibility for contentions, requiring a detailed reporting of sources and contentions to be made before the actual hearing, will eliminRte intervention by public interest groups which are often understaffed, less well-funded and therefore less able to finalize all aspects of their cases before the hearings begin.
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| : 2) Limits on Subpeonas and Discovery Against NRC Staff (Sec. 2.720) hs a pa rty to the licinsin g hea rin g , like the applicant and intervenors, NRC staff should be required to justify their opinions and assertions with explanat ion and documentation. Furthermore, to not require NHC staff to provide to intervenors information they have relied upon in making their judgements as it may be "reasonably obtainable fro m any other source" will greatly inhibit th e flow of information, and may prevent some information from ever corning under review at all. We have ha d sporadic success with Public Document Rooms in attempts to obtain information necessary to successfully intervene. In addition, while FCIA laws do make information more SEP 9 198 Acknowtedged by card* .~,._;,;;;;;;;;:;~'a-
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| I I . 2
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| accessible, it often takes weeks, even months, to get the information requested. We feel it is imperative for information to be made readily available for public scrutiny.
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| : 3) Cross Examination (Section 2.743)
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| Cross examination is an essential part of t he intervention process. It is the on e aspect of the system, more than any other in our opinion, which allows for "full and true disclosure of (the) facts." To restrict cross examination by requiring intervenors to obtain special permission from the hearing judge to cross examine a witness is to attack the very purpose of intervention, which is "full and true disclosure of facts."
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| : 4) Motion for Summary Disposition (Section 2.749)
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| On c e a gain the gross di s parity in resources and preparation time which exists between th e license applicant a nd the interv enors is being used to give advantage to th e multi-billion .dollar backed licnese applicant . Allow in g motions for su mmary disposition at any time will op en interveno rs to pr e-h earing barrages which divert res our ces away from preparing for th e actual h ea rin g . This proposal app ears to be an attempt to s he ild 2pplicants fro m int ervenors by allowing an interven or's cont entions to b e quie tl y di s missed before the hear in g ever takes pl a ce .
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| : 5) Conf i n i ng Ap~eals to One 's Own Content ions ( Sect io n 2 .7 62 )
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| 3y pro h i b itin g one interven or fro m r epresent in g their inter ests as voiced by th e contentions of anoth er intervenor prevents the formation of a united front on all points raised by all intervenors.
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| 1lliance and networking are two of the stron ge st tools of the issue organizer. It is often t he cas e where one expert wil l represent t he contentions of one groups and also be cal led upon to testify on be-half of another group. To divide and conquer is not to reform.
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| The Illino is Safe Inergy All ianc e is a state-wide coalition of a~ti-nuclear, environmental and alternative energy advocate groups.
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| The Allian ce has signed on many petitions as intervenors to the lic-ensing of a nuclear powe r plant. We fe el your 'reform' proposals will greatly hinder our chan ces of successfully interven in g in th e future, and for that matter , from participatin g in the licensing pro-cess in the future. These latest proposals s eem to e cho Commi ssioner Paul Asselstine 's cl a i m that "the commission believes its job ia to protect the industry and not the public." It also r eit erates the claim that the industry exh ibits "a willingness to acco modat e i nd ustry wishes and a reluctance to take a strong and ag gressive role to enforce regulation." We stron gly ur ge you to rethink your proposals for licinsing "reform." J>'inimizing t he public's rol e in the licensing process is clearly not in t he public's best interests.
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| Sincerely,
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| ~
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| Kurt D. To rres Administrative Director
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| ll(D[( NUNJtPR --~ @
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| YANKEE ATOMIC ELECTRIC COM '-AN vl*5/pt4..rJ4?,(p5)Telephone (617) 872
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| * 81 00 TWX 710-380-7619 FYC 86-0ll OO lKEJE Q GLA 86-186 16 71 Worcester Roatf.~~mingham, Massachusetts 0 1701
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| '86 SEP -5 P2 :32 OFfl Cr.. Of- ~t r !. !ti"'* September 3, 1986 DOCK ET ING!'-. s-r ./! Cf BRA NCH Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Docketing and Service Branch
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| ==Subject:==
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| Comments on Proposed Rule (10 CFR Part 2) Regarding Rule of Practice for Domestic Licensing Proceedings - Procedural
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| * Changes in the Hearing Process (FR Doc. 86-15087)
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| ==Dear Sir:==
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| Yankee Atomic Electric Company (YAEC) appreciates the opportunity to comment on the Proposed Rule for Licensing Reform. 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.
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| The Nuclear Utility Backfitting and Reform Group (NUBARG) is filing comments resulting from its analysis of the proposed rule based on its unique perspective. YAEC is an active member of NUBARG and endorses its comments, but would also like to offer the following.
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| We endorse the proposed rule changes. They establish a more precise basis and specificity as the standard for licensing board rulings on the admission of contentions. The proposed changes should result in a better definition of the facts and issues and elimination of contentions that are frivolous and without merit.
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| We also agree with the stated objectives of Commissioner Asselstine's suggestion that the decision on standing for intervention be separate from the decision on validity of contentions. However, it has been our experience and the experience of counsel that both decisions are made separately, but do not result in fewer contentions being reviewed and/or admitted. These objectives could be accomplished if the decision on standing for intervention were evaluated in a new light, (i.e.,
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| based on more than the distance test) and if the decision on validity of contentions were based on the proposed, more stringent criteria.
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| We applaud the Commission's efforts to reform the hearing process.
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| However, we are concerned that this is a very small portion of the list suggested by the Regulatory Reform Task Force (RRTF) in 1984 (49 FR 14698). Although we agree that the changes proposed AcknaNtedged by
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| as. JIIIUCLEAR RfGUtATORY COMMISSION DOCKETING & SERVICE SECTION OFFICE OF THE SECRET ARY Of THE COMMISSION or ree I
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| should have a positive effect on the hearing process, we urge the Commission to continue active pursuit of licensing reform.
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| Thank you for the opportunity to comment.
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| Sincerely, D. W. Edwards Director of Industry Affairs DWE/jac
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| 00(,KETEO US NH C August 28, 1986 "86 SEP -S P2 :22 Secretary of the Com mission Off/ CE f- SL L-Ht
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| * RY U.S. Nuclear Regulatory Commission DOCKETING .~ SE RVIC(
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| BRANCH -
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| Washington, D.C. 20555 ATTN: Docketing and Service Branch Dear Sir; I am writing in response to the proposal, currently under consideration, to change several parts of 10 CFR part 2, the licensing procedure for commercial nuclear power plants .
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| It is clear that the purpose of these five rule changes is to sharply limit the role of intervenors in licensing proceedings. In other words, the NRC is seeking to limit public input as much as possible. I must therefore voice strong disagreement with this general trend, and will address each specific rule change in turn.
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| I. Admission of Contentions (Sec. 2.714)
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| Raising the threshold of admissibility for contentions is clearly an attempt by the NRC to shield the nuclear power industry from public questioning.
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| The proposed rule change would require intervenors to outline in significant detail the entire case, before the licensing hearing begins. This is, in effect,
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| * begging the question, as the whole reason for holding a licensing hearing is to determine the validity or non-validity of contentions. The NRC is putting the cart before the horse.
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| II. Limits on Subpoena and Discovery Against NRC Staff (Sec. 2.720)
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| The proposal to lift requirements that the NRC staff justify their conclusions on licensing matters is ludicrous. A licensing hearing is intended to determine whether or not the design of a specific plant and its operating systems are consistent with good engineering practice. For conclusions on such issues to be validated, the conclusions must be subjected to review; in other words, the information and the analysis used by NRC staff to arrive at their conclusions must be a topic open for discussion during licensing proceedings.
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| III. Cross-Examination During Hearings (Sec. 2.743)
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| SEP 8 kltawledled by cant.*__..;;.....;;~::;:;r;;;i~
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| ,. r "t. - - * ...
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| l'tt. Mlt1.fAt REGULATORY c6MMfS"~rON CKETING & SERVICE SECTION QFFICE OF THE SECRET ARY (if: THE COMM ISSION cument S atist ics I l"l;, te ed
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| _ _f/4~~0- /
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| Ari. , Reprcd*Jced £ - --
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| ljt I I ,* \! ributi n
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| This proposed rule change appears to be another attempt by the NRC to shield itself from having to justify its methods. analysis. and conclusions (see above). Limiting cross-examination apparently violates the intent of the Administrative Procedures Act, which requires "full and true disclosure of facts."
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| IV. Motions for Summary Disposition AHowed at Anytime (Sec. 2.749)
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| Oearly designed to allow license applicants to harass intervenors, this proposed rule change effectively limits the intervenor's ability to deal with licensing issues by requiring the intervenor to respond to motions for summary dispositions at any time during the licensing procedure, even before or during discovery .
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| V. Proposed Findings of Fact, Conclusions of Law, and Appeals must be confined to issues which the intervenor alone placed or sought to place in contention (Sec. 2.762)
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| This proposed rule change, like the others, is intended to preclude a full hearing on licensing issues, by preventing intervenors from contributing to the portion of the hearing process dealing with contentions not filed by them. In effect, intervenors would only be aJlowed to contribute to that portion of the hearing deaJing with their specific contentions. This is another attempt by the NRC to limit and diffuse technicaJ discussion of licensing matters.
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| * These rules changes represent a concerted effort by the NRC to limit public input on licensing issues, when in fact the NRC should be doing every thing it can to ~olicit public input. The recent Bechtel foul-up at the Hope Creek plant is the latest in a long line of indications that the nuclear industry needs aJ1 the public oversight that can be mustered.
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| ames E. Beard, Greenpeace Greenpeace Northwest 4649 Sunnyside Ave. North Seattle, Washington 98103 Janes E. Beard
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| 00(.;KETEO USNRC Westinghouse Water Reactor Electric Corporation Divisions Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.c., 20555 Attn: Docketing and Service Branch Re: Rules of Practice for Domestic Licensing Proceedings -
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| Procedural Changes in the Hearing Process (51 FR 24365)
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| Westinghouse Electric Corporation appreciates the opportunity offered by the Commission in the Federal Register publication of the proposed changes (July 3, 1986) and in response provides the following comments.
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| The comments are set forth in two separate sections, General and Specific.
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| The General Comments address both subjects, the Regulatory Reform Task Force proposals and the additional proposals of Commissioner Asselstine in two separate subsections. Thereafter, Specific Comments deal with the actual wording changes as interlined with existing regulations, also in separate subsections where comment is deemed appropriate.
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| I. General.
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| A. The Regulatory Reform Task Force Proposals.
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| : 1. 2.714 - Intervention.
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| For those involved in the actual hearing process over the years, the tenets of 2. 714 both as to standing for inteJ:vention and as to specificity or basis for individual contentions, have stood the test of time. The basic shortcoming has been the failure of Boards and Presiding Officers to enforce basis and specificity on the one hand or to deny contentions as lacking requisite basis and specificity on t.lie other hand. Numerous accorded opportunities to amend have still resulted in vague, generalized and unfocused contentions taking hours of time for technically qualified witnesses responding to inane inteJ:venor quest.ions. Here, the problem is UA .I .W not in the definition of 2. 714, it is in the discipline which 2. 714 was intended to impose, not being imposed.
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| SEP a 198&
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| ~ l!j, iilnf, : .;;; .......... #
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| Ill.I. NClttfA( (fCUI.Af61tY' COMMfSSION DOCKETING & SERVICE SECTION OFFICE OF THE SECRETARY Of THE COMMISSION Document Statistics D le - ~ '-=- lf&J_
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| ed Reprc,hced _ 4/ ___
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| [> tributien
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| Secretary of the Corn:rni ssim Page 2.
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| The newly proposed. wording comprises law, fact, or policy. [See (b)(2), (b)(2)(iii) and (d)(2)(i)]. While there is no question that the
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| -----se!)ara.'Eion---of----fact-and law issue--s-w+/-ll---slrO?'ten the tediously long evidential sess:1..a,s of an ASLB hearing, the possibility of an intervenor raising policy issues before an ASLB in an individual license proceeding boggles the mind. An ASLB is not a policy forum. Policy is to be left to the Congress when it is cJearJy discern:1ble and to the Commission when it is not so disoern:ib1e. The Cammi ssim has beeh exhaustively thorough and grindingly slow is sa11c1t1ng broad participation in policy questions. The Commi.ss:icn has invented such vehicles as an Advance Notice of Proposed Policy; a Notice of Proposed. Policy and a Proposed Policy, soliciting comments at each stage and MJDEt:imes adding years to the t:ilne required to promulgate effective policy. To even suggest that this painfully slow process be injected into an :lndividual lioense proceeding in the guise of improving the licensing process confirms that the authors do not understand and have not made an analysis of the problems which Applicants must face in the hearing process. Consideration by an ASLB of policy issues in an individual license proceeding will guarantee that any intervenor no matter how inexperienced and poorly funded could grind the entire process to a complete halt.
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| While the Commission has no express rule for policy, the Commission clearly p:rchibits a challenge to rules and regulations of the Commission in an individual license proceeding absent the requisite showing required in 2. 758 and there, the C"-OIDJDi ssian expressly makes the determination, not an ASLB. A more :restdctive rule respecting policy would be appropriate.
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| The Co:mm:lsmm as a c:ollegia1 body has d8ll1Cl'lSt:rate Jimitad success in the unanimous formulation of policy. Del.egi!t:ing such a function to an ASLB for determination in an adversary proceeding is not lawful and is so impractical as to suggest a total misconception of what licensing boards are chartered to do: rule on controversies put forth by the parties.
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| The prologue to the regu12lto:cy change, middle column, paragraph 2 of the Federal Register notice, page 24371 does not clearly state that existing paragraphs (e), (f), (g) and (h) of 2. 714 are retained intact
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| * Any change sh.ool.c;I retain these ililportant concepts and preserve the case law precedents which have developed.
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| : 2. 2. 720 - Subpoenas.
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| While the proposed changes may, indeed, ca1serve Staff resources, the changes totally ignore the much broader issue of the role of the.
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| Regu1atmy staff in the adjudicating process. It is the role issue that must be addressed to effect any fundamental change and restore stability and predictability to the licensing process, not tinkering with the subpoena rules. Such window dressing brings into questim the resolve and
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| Secretary of the ~.nmm:issia1 Page 3.
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| the ability a! the of the Commission to affect any fundamental change.
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| : 3. 2. 743 - cross-examination.
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| The cx,mments respecting the fundamental. role of the Regulatory Staff are also app]:iasble here. What little time was saved in addressing the Interrogatories by the Staff will certainly be consumed in drafting c:ross-examinat:i.al plans which cxmtain answers to questions. The entire pw:pose of a cross-examination plan is to provides the Board and the parties with reliable information m whidl witnesses will be required and for how lalg. Again, the drafters have not made a sufficiently critical examination of the problems in public hearings to propose a practical solution.
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| Tuming to the real world, the staff and the Applicant provide wftnesses and to the extent they can ascerta:in the compass of a particular contention make their affirmative case in the filing of direct testimony.
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| 'Ihese witnesses are usually highly skilled tedmica1 experts who must take time from other duties to address intervenor questioning that runs the gamut from exploring tedmica1 differences of opinion to absurd inanities and is generally weighed heavily towam the inane. I't is the Staff and the Applicant who shoo.ld be put ai notice as to which witnesses and for how long, not the Board. The Board does not provides witnesses except under unusual c:ircumstances. Why have the cross-examination plans kept secret by the Board? Because of the content of the answers, you say. Don *t require answers. Require strict time limits based on subject matter, number of witnesses and a reasonable time to cross-examine and make it ava:iJable to all parties, not just the Board. Have the Board enforce the strict t:i1ne Jim:fts- Courts do. A trial cxurt is rarely reversed on appeal for the enforcement of predetermined strict time limits.
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| Intervenors rarely provide credible witnesses and rarely provide written testimooy. Trad+/-tionally, inte:cvenor lawyers make their so called case on cross-examination of staff and Applicant witnesses. A better approadl for Boards to follow is to weigh the intervenor pursuit of an affirmative case with witnesses and testilllclly aga.:inst an asserted right Qf cross-examinat: Where no testimony and no w.i:tness is presented to go forward with an affirmative case, the intervenor allowed cross-examination shcw.d be very J:fm:ited and strictly enforced. '!his will go much further in keeping the evidential record short, concise and to -the point. It will also shorten the hearing process and put intervenor l a ~ ai notice that their mere physical presence will no l.cnger carry the day. The burden of go:irg forward suggested here is no mare than every lawyer must shoo.lder in a civil matter and aligns NRC practice with fundamental tenets of civil practice.
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| * Secret:aey of the Crnmni ssion Page 4.
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| : 4. 2.749 - Authority of presiding officer to dispose of certain issues on the pleadings.
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| While the "at any time" provision does not preclude early filing to limit the number of issues for which witnesses and testilllony will be required for an evidential session, a material concern to both the Staff and the Applicant, the "at any time" occurring in the middle of an evidential sessi en may well be a ploy to interrupt and delay as opposed to a genuine effort to advance the proceeding. As a consequence, the authority of the presiding officer to "dismiss summarily motions filed shortly before the hearing commences or during the hearing if the other parties or the board would be required to divert substantial resources from the hearing in order to respond adequately to the motion." is an existing provision of limitation wbic:h must be preserved if discipline is
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| . to be a realizable goal.
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| Once again however, a threshal.d for true reform, restoring stability and predid:ability to the licensing process has been avoided or missed.
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| This sectiai should be made applicable to all contentions for which the sponsoring intervenor has either no witness or no written testimony. Why provide an q;,port;un.i:ty to cross-examine staff and Applicant experts when no affirmative case of colorable credibility has been presented? Why bail.a.It an intervenor who has essentially told the world that he has no case as far as the burden of go:ing forward in a civil matter is concerned?
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| SUcb. ccntent:i.als are ripe for snmma:ry cleds:ioo and no ev.idential. record is required.
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| * 5. 2. 754 - Proposed findings and conclusions.
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| This appears to be a laudable effort to force intervenors into f:ind:lngs and conclJJs:imR that will be helpful to the Board in drafting an Initial Decision. Rather than Boards being confronted with sweeping poJe:mics *condemn:ing the process, the intervenor is encouraged to request the Board's attention to any matters of fact or law that c::cw.d be found in
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| * the inteJ:venor's favor. unfortunately, the phrase "or sought to place in controversy in the proceeding." will be used to reargue rejected CCl'ltentions. such reargument will be on intervenor turf, subject to the rules of his invention and asserting "evidence" of his choice. There is no evidential record on a rejectErl content:i.cn - the time for evidence had not arrived. 'lhis cme phrase will destroy any usability to the Board and present the Board with a polemic which they can ignore (they should but rarely do) or a body or incompetent evidence which the Board will try to refute. The Board is placed in the position of defending its prior rulings en i!ldmissibility whic::h are not subject to appeal, initially. This phrase shcw.d be drq)ped. It is a'lly an cxrasian for m:isdrlef and its use
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| * Secret:aJ:y of the C"..omrn:f ssim Page 5.
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| will be to detract from the soundness of Commission records and decisions. This is not to say that an intervenor cannot appeal,
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| -----...n.....
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| lti ......m&tely-,-a-B~f-tldmissibillty;--The time and plll:ce=--to~~a-o=-------
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| that is not in findings of fact and concl.nsfons at law. Record exception to a denial af edrn:lss:lbjlity and asserted grounds can be preserved for appeal of the initial decision.
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| : 6. 2. 7 62 - Appeals to the Commission from initial decisions.
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| Here, the phrase "or sought to place in controversy in the proceeding." is not only appropriate it is the "quid pro quo" for the prdrlb.:i:t:i.ai in 2.730(f) and the limited appeal allowable under 2.714a(a).
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| For emphasis, it is here and only here that the phrase is appropriate, not in 2.754.
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| B. Commissioner Asselstine's proposals *
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| : 1. 2.4 - Definitions.
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| No cxmnnent. The fact that a local public document room has remained undefined for years is acknowledged.
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| : 2. 2.101 - Filing of application.
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| '!he proposal introduces the giving af notice based on receipt rather than docketing. The reason for the administrative delay based on docketing was to assure the Commission that the staff was satisfied that the requirements of form had been fully satisfied and that the Staff had authority to consider the application which resulted in docketing. The present system should be retained. Otherwise, the Commission may be noticing applications that are either insufficient for consideration based on a preJ :frn:lnary review of form or are applications for which the Commission lacks authority to review or docket
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| * The proposal assumes that an application for a nuclear power plant first comes to light in the application filed with the Commission. Such is not the case. Lalg before an app1.i.cat:ioo is filed with the Commission, every state has a requirement that new generation facilities receive the equivalent of a "certification of public convenience and necessity". In many instances the equivalent of the State Public utility Commission provides an cpportunity for public participation in the determination of such necessity and cawenience. In other words the cx:ntraversy is brought to light and oppositial is mc:unted lalg before as 8PPlication is presented to the Comrn:lss:foo. Therefore the need to "docket first and read later"
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| * 6ecretaJ:y of the ~-OJDrnission Page 6 snnply does net exist. Incidentally, the use of the Federal Register to inform the general public of a matter in controversy such as an
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| -----c\i,p.+/-;LSaa.<a1R-;WI~-pewer-----rea.ct:o-is-a-legal--fict+/-on-----wh+/-clrca:nnot-withstand,,__ _ _ __
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| any further inqub:y. It satisfies judges and the Administrative Procedure Act. Whether it actually notifies the general public is not important.
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| If the application is for amendment to an existing license, the Commission maintains a service list of "the merely interested" for all open dockets and l.iberally extends to that service list actual notice (as opposed to published notice) for subsequent actions such as amendments. I:f there is a conceni that parties with standing are not receiving notice, the concern is not justified.
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| : 3. 2.714 - Intervention.
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| The proposal is basically flawed. It seeks to separate "standing" from the formulation of a justiciable issue or "contention" and would adjudicate each independently in a different time frame (i.e. contentions ninety days latel:?. Congress determined under 18 9a of the Act that: "any person whose .interest may be ,affected by the proceeding *** " shall have certain rights of admissibility as a party. The demonstration therefore is one of "interest". J'11d:lciaJJy, interest has been demonstrated by both "standing" and the pleading of a particularized harm separate and apart from any general allegation of harm. Interest requires both standing and
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| .in U.S. NRC practice the statement of a justiciable issue - if you will -
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| a harm for which the Commission is empowered to grant relief - a content:l.cn. Both are required and a separate adjudication of one simply delays the finding of :interest. until the other is demonstrated. Therefore the proposal .in reality sbnply tacks on another ninety days to the already endless adjudication process and is not an improvement but more of the same - delay. While ninety days seems a short time in comparison to other hearing time frames, it can be an enormous burden on a utility paying millions for funds used during construct:ial. As a consequence the ninety days has been properly rejected by the Commission. The Commission's regulations on a limited appearance have engendered wide public participation by those who cannot or are unwilling to become parties to a
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| * proceeding.
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| Since the other dlanges proposed mostly accommodate a separate finding on standing and the filing of contentic:ns, a constru.ct:ial not ~pported by the stat:utoJ:y language and reject.ed by the Commission, the other changes are unnecessary and are actually harmful.
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| II. Specific.
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| A. The Regulatory Reform Task Force Proposal.
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| * Secretaey to the Cammi ssim Page 7.
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| L 2. 714(b) (1). Strike the words "in the hearing" at
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| ----the-end-ot----the-first sentence;----Until such time as the contentions a r e ~ - - - - -
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| admitted, it isn't clear that there will be a hearing, as to that petitioner.
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| horse situation which should be stopped. If the proposed (b) (2) is strictly fallowed by the Boards, then the evidential record will not later have to justify the Board decision to admit an otherwise inadmissible contention.
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| : 2. 2. 714(d) (2). The language as proposed is not clear. Reword it as follows: "(2) The admissibility of a contention, refuse to admit a contention where *** ".
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| : 3. 2. 714(d) (2) (i). This language undercuts the intent of the first sentence. For a determination of whether the contention satisfies the requirements of (b) (2) does not require a test of "reasonable minds to inquire further as to the validity of its cantent:i.on". That is an inquiry to the merits which can only be resolved ai an evidential record after a niling of admissibility. This is what Boards are doing now in admitting vague, generalized and unfocused caitentions, somehow hoping that an evidential record will develop that juRt:1fies the admissibility of the contention. This is a cart before the
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| : 4. 2. 720(h) (2) (i), ';['he test of relevance should be t h e ~ to the admitted contentions. The NRC Staff's position in any proc;::eeding is one of public health and safety and the common defense and security. In the day to day tedium of the public hearing process, the Boards often loose sight of the fundamental staff position to protect the public health and safety. Therefore, the third sentence sh.aJld be changed to read,: "Such interrogatories may seek to elicit factual information already developed by the NRC Staff that is reasonably relevant to the cantent:i.on, including***". For similar reasons, change the last sentence to read as fallows: (B) Performance of additional research or analytical
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| * work beyond, that already carried out by the NRC Staff."
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| B. Commissioner Asselstine's Proposal.
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| In view of the total disparity between this proposal and the reality
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| .of ASLB public hearings, it would be inappropriate to offer any "wqrd smithing" changes. To bring this prq>aeal into focus and to reaffirm the Commission's prior rejection of this proposal, reliance is placed on the discussion in the General comments set forth above.
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| Aga:1n, Westinghruse Electric COZ'poration appreciates the opportunity
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| * J Secretm:y to the C"-OJDmiss:fan Page 8.
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| to express its views on the Commission efforts to bring needed administrative reform to the licensing process, to restore stability and predictability and preserve a viable nuclear option for the United States. Should the Commission or members of the Regulatory Staff in advising the Commission on the nature and extent of comments received desire further discussion, illumination or justification, Westinghouse will make knowledgeable people available .
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| GE Stockholders' Alliance Against Nuclear Power
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| '- P.O. Box 966
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| * D 21044 * (301) 730-0178
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| .-.m :~. (it) DOC KET H!
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| US NHC
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| ~/ August 31, 1986 Secretary of the Commission
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| '86 SEP -S P1 :SQ U. S. Nuclear Regulatory Commission Chairman Washington, D. C. 20555 OFFI C... tJ :;::.t...r'.~ 1Art Y Patricia T. Birnie DOC KET IN G&. SEP. VIC f.
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| BR ANCI-!
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| ATTN: DOCKETING & SERVICE BRANCH Board of Advisors (In Formation)
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| ==SUBJECT:==
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| Proposed revision of 10 CFR Part 2 Larry Bogart Citizens Energy Council
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| ==Dear Secretary :==
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| Leo Goodman The accident at Chernobyl happened in a closed society, where (1910-1982)
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| Split Alom public review was not possible , and where the public had no Study Group say about the stringency of precautions for public safety .
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| udith Johnsrud, Ph.D.
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| Vice Presidenl Please don ' t destroy the small vestige of citizen participation Solar lobby in our system. Informed U.S . citizens know that even in our Charles *Komanoff democracy, a strong nuclear priesthood exists here . The Komanoff Energy existence of the Nuclear Regulatory Commission ' s Public Document Associales Room came about as a result of citizen pressure . Even though Claude Lenehan, OFM citizen intervenors are discouraged from participation in the Corporale Responsib ility Advisor licensing process , many vital safety issues which have not been addressed by the NRC or the nuclear industry have been raised Paul L. Leventhal by infor~ed citizens .
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| President , Nuclear Conlrol Institute The American nuclear inpustry is advocating licensing changes Grigsby Morgan-Hubbard Wriler and which would result in as closed a society as the Soviets' . The Energy Consultant proposed licensing reform would further restrict public access John R. Newell to information , eliminate public review, prevent citizen parti-Bath Iron Works cipation in licensing procedures, and in essence, allow indus try President (Rel.)
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| * to set its own standards and safety review.
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| iles H . Robinson, M .D .
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| Citizens for The accident rate, unsafe performance and environmental pollution Health Information records of U.S. nuclear reactors is already alarming . Improvement Nathan H . Sauberman cannot be guaranteed by allowing the industry to licen-se new Professional Engineer f acilities in a process further insulated from public review.
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| (Rel .)
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| In fact, it will ceratinly cause further loss of public confidence John Somerville, Ph.D. since no guarantee exists that safety practices will improve.
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| Presidenl, Union of American and Japanese Professionals Againsl Nuclear Omnicide General Electric is lobbying hard to get NRC authorization for its new standardized reactor. With the (recently revealed)
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| Irving Stillman, M.D.
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| Physicians for Socia l complicity of the Atomic Energy Commission in covering up flaws Responsibility in the BWR design back in 1971, (with the continuing silence of Faith Young the present NRC), you may understand our strong objection to the Energy People, Inc. proposed rule changes.
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| M fil iarions lo, Ident ification The public used to believe that the purpose of the NRC was to Purposes, only. protect the interests and health of the public. But so many NRG decisions have favored the industry in spite of well documented objections of citizens.
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| U~t, NUCUAR ReGVlATORY COMMISSION D0<:J<rttNG & SERVICE SECTION C>FFICE OF THE S£CRET ARY d, THE COMMISSION Documer-1 c tics f6'ltmerk
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| : fopie, Da te c , ved c;#E~ I Ad,J ' 1 Copi s Rep r .>duced ,f
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| '1,ecial Distribution
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| Page 2. Secretary of NRG Public confidence in the NRG dropped further when the NRG chose to conduct closed meetings, and not even allow public access to the minutes . If the American nuclear industry is so finely engineered and safe, it would seem logical that the NRG would welcome public review and knowledge of licensing proceedings and NRG meetings.
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| Specific rule changes to 10 GRF Part 2 to which we object are the following:
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| The proposed revision would:
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| 1 . require an excessive amount of detailed documentation to qualify a citizen petitioner to intervene in a licensing hearing (virtually impossible because the reports and documents are not available (Section 2. 714).
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| 2 . shield NRG staff from justifying conclusions or providing research or analysis services for intervenors, making it more difficult for citizen access to important information (Section 2. 720) .
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| : 3. limit all parties ' ability to cross examine witnesses during hearings , a special hardship for citizen intervenors. It requires a request to the hearing judge in advance , with a detailed description of issues, objectives ,
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| questions to be used, and planned counter-arguments. (Section 2. 743 ).
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| : 4. provide that the presiding officer at a licensing hearing may call for summary dispositions at any time , opening the possibility of dismissal of an intervenor ' s contentions even before a licensing hearing takes place (Se ction 2. 749) .
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| : 5. restrict intervenor participation to only the specific issue which s/he formally enter.ed into contention (Section 2. 762) .
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| We urge you to protect the democratic process and , if licensing reform is needed , expand the function of public review and the requirement of advice and testimony of objective , independent experts .
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| Thank you for your careful consideration *
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| * cc : All Senators and selected Representatives
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| {/~$~
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| Sincerely, Patricia Birnie
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| ~ ,e @
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| DURYEA, MURPHY, DAVENPORT & VAN WINKLE Attorneys at Law James H. Davenport Evergreen Plaza Building Cheryl L. Duryea 711 Capitol Way Malachy R. Murphy Olympia, Washington 98501 Rose Marie Van Winkle (206) 754-6001 Of Counsel Seattle Tower, 24th Floor Robert F. Hauth, P.S. 1218 Third Avenue Seattle, Washington 98101 (206) 343-9365 Please reply to: Olympia August 29, 1986 ooCKETED
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| * Mr. Samuel J. Chill<
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| Secretary of the Commission, U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Docketing and Service Branch JEPS 1986 1)()CKET11'0 I 111\'VICE UMNCH lll<rl*NRC Re: Proposed Amendments to 10 CFR Part 2; 51 FR 24365.
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| ==Dear Secretary Chill<:==
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| In accordance with the Commission's Notice of Proposed Rule Making dated June 30, 1986, and published at 51 FR 24365 - 24373, the State of Nevada submits the following comments to the proposed amendments to 10 CFR Part 2, Rules of Practice For Domestic Lisencing Proceedings - Procedural Changes In the Hearing Process *
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| * Yours very truly, DURYEA, MURPHY, DAVENPORT & VAN WINKLE
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| \J a.: arC\.J~\
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| alachy R. ~ ~
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| rphy Special Deput Attorney Ge eral State of Nevada MRM:jfr cc Bob Loux Harry Swains ton
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| * I SEP 8 1986
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| ~ledg.ed by card ........... .,.... ..
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| ,lf,I, NUCLEAR REGUI ATORY COMMISSION DOCKETING & SERVICE SECTION OFFICE OF THE SECRETARY Of THE CCMMISSION Documen* Statistics
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| ~
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| Date llt.eceived 1/2-jft_ /
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| lad' I Copies Reproduc'ed A --I-} ,-lJT,;.
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| ~ Dlatributien ~ ~ _§Uutd,
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| '/)IJ 7d-
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| COMMENTS OF STATE OF NEVADA ON PROPOSED AMENDMENTS TO 10 CFR PART 2 - RULES OF PRACTICE FOR DOMESTIC LISENCING PROCEEDINGS - PROCEDURAL CHANGES IN THE HEARING PROCESS; 51 FR 24365 The State of Nevada submits these comments in response to the Notice of Proposed Rule and request for public comments dated June 30th, 1986, and published at 51 FR 24365 - 2437 3. Nevada had earlier commented on the substence of these proposals in response to the Commission's April 12th, 1984, Request for Public Comment on Regulatory Reform Proposal Concerning Rules of Practice,
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| * Rules For Lisencing Production and Utilization Facilities, at 49 FR 14698.
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| As with Nevada's earlier comments, these comments are limited to the effect of the proposed rule upon lisencing proceedings under 42 U.S.C.10134(d) involving a deep geologic repository for high-level nuclear waste and spent nuclear fuel. As the Commission is fully aware, Nevada contains a candidate site for the development of a high-level nuclear waste repository, and thus has a genuine concern respecting the adequacy of any rules of practice which will govern a lisencing proceeding in which it may be directly involved.
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| Many of Nevada's earlier comments have been addressed by the Commission
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| * in its proposed rule, and in its supplementary information published therewith. To a certain extent, at least, the State's earlier expressed concerns have been satisfied. Certain significant concerns remain, however, and these comments are addressed thereto.
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| INTERVENTION -ADMISSION OF CONTENTIONS In its final rule amending 10 CPR Parts 2 and 60, effective August 29, 1986, published at 51 FR 27158, the Commission, partly in response to Nevada's earlier expressed concerns, adpoted § 2. 714(d). That rule now reads, in pertinent part, as follows:
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| 1
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| "The Commission, the presiding officer, or the atomic safety and licensing board designated to rule on petitions to intervene and/or requests for hearings shall permit intervention, in any hearing on an applicaition for a license to receive and possess high-level radioactive waste at a geologic repository opperations area, by the State in which such area is located and by any affected Indian Tribe as defined in Part 60 of this chapter. * *. ".
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| That amendment, while it goes a long way towards satisfying Nevada's earlier concerns, does not address the problems we pointed out with respect to the admission of contentions provisions of the proposed amendments to § 2. 714. We continue to adhere to our earlier views, and again urge the commission to revise the proposed rule to make clear that, as to any host state, the proposed requirements of§ 2. 714(b) simply do not apply.
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| We believe this would be consistent with the Commission's statement in the preabmle to its final rule amending 10 CFR Parts 2 and 60, that:
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| "Under the amended rule, State's and affected Indian Tribes would have unquestionable legal right to full party status which includes, with respect to all matters affecting its interests, the rights to introduce evidence, put on witnesses, cross-examination, full notice and service of all pleadings, full rights of descovery, and standing to appeal. (51 FR 27160.)
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| While the State's concern may indeed have little practical significance, we believe strongly that the Commission should recognize, at the outset, a state's right to participate fully as a party in any lisencing proceeding involving a high-level nuclear waste repository. To attempt to limit that participation, even by limiting or otherwise conditioning a state's admission of contentions, would, we submit, violate the Nuclear Waste Policy Act. See Nevada v. Herrington, 777 F.2d 529 (9th Cir. 1985).
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| 2
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| It is sometimes noted (See 51 FR 27160) that§ 2.715 provides the states with the same right to participate in any high-level nuclear waste repository licensing proceedings. We disagree. That section gives a host state only a "resonable right to participate" in such proceedings, controlled by the presiding officer, and with, notably, no consequent automatic right to appeal.
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| We urge the Commission to amend the proposed rule by inserting in§ 2.714(b) the following language:
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| * ''The provisions of this subsection shall not apply to any host State, or affected Indian Tribe, in any proceeding involving an application for lisence to receive and possess high-level radioactive waste at a geologic repository operations area, under Part 60 of this chapter."
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| DISCOVERY AGAINST STAFF The proposed § 2. 720(h)(2)(ii) should be further amended to make clear that the NRC staff is required to answer interrogatories propounded to them unless they object and the presiding officer rules that they need not be answered. Furthermore that section should be amended by deleting the sentence:
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| "Such interrogatories may not, however, be addressed to or be construed to require:
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| (A) Reasons for not using alternative data, assumptions and analyses where the alternative data, assumptions and analyses were not relied on in the NRC staff review; **. ".
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| Parties, including host states, should be able to discover why the staff has not relied on alternative data, assumptions and analyses in its review. Indeed, Nevada remains mystified as to why the Commission itself, or any atomic satety and lisencing board or presiding officer, would not want that same information, and thus why it should not be discoverable.
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| 3
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| CROSS-EXAMINATION The proposed§ 2.743 also needs further revision. A cross-examination plan is acceptable, provided that prefiled written direct testimony is availble to the parties suficiently in advance of the session of the lisencing proceedings at which such testimony is to be presented. Fifteen days is simply not suficient. Nevada urges the Commision to amend that provision to provide at least thirty days for the consideration of any prefiled written direct testimony.
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| Furthermore it is simply unworkable to require a party to submit, in a cross-examination plan, not only the proposed line of questions which may logically lead to achieving the objective of the cross-examination, but also the postulated answers which migtht reasonably be anticipated. It is one thing to say what you think the answer should be, but is quite another to predict what they will be, as any attorney with litigating experience knows full well. It is hard to postulate answers, for example, when searching on cross-examination for the reasons why someone did or did not do something; why, for example, the staff did not rely on certain data, assumptions and analyses, when that information is not subject to discovery.
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| * PROPOSED FINDINGS AND CONCLUSIONS - APPEALS The proposed §§ 2. 754(c) and 2. 762(d)(l) are simply not acceptable. Each of those sections would limit an intervenor's filing of proposed findings of fact and conclusions of law, and its right to raise issues on appeal, to issues which that party actually placed in controversy or sought to place in controversy in the proceedings.
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| Those limitations, while otherwise appropriate, simply should not apply to a host state or affected Indian Tribe in any licensing proceeding involving a high-level nuclear waste repository.
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| 4
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| We note that according to the supplemental information (51 FR 24368) these restrictions are not applicable to license applicants or to NRC staff. The same should be true of the host state and affected Indian Tribe parties, who, under the Nuclear Waste Policy Act, have the same status as either an applicant or the staff.
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| The supplemental information notes that:
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| ''The NRC staff has an overall interest in the proceeding to ensure that public health and safety and environmental values are protected. Each has an obvious interest in filing proposed findings of fact and conclusions of law on most, if not all, contested issues and in taking appeals when they are adversly effected by the presiding officer's
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| * decision.".
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| That statement could not be more true of the State of Nevada, should we find ourselves a party to any lisencing proceedings. To deny those rights to Nevada, and to fail to recognize that Nevada has an "overall interest in the proceeding to ensure that public health and safety and environmental values are protected" is to violate the Nuclear Waste Policy Act. Nevada v. Herrington, supra.
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| 5
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| &JICQI Nllllllffi*** *, .
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| eRllfJllfll IUII PR-h (jj) 51 Westside Drive
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| (_~1rt~,4g,5.. Exeter, t-.few Hampshire 03833 Au gu '=* t 29, 1 9dtl'CK£T EO US NRC Secretary of the Commission U.S. Nuclear Regulatory Commission "86 SEP -4 A10 :38 Washington, D.C. 20555 ATTN: Docketing and Service Branch OFFICE OF S[~r:l:.TM RY DOC KET ING & SERVI Cf" BRANCI-J .
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| ==Dear NRC Commissioners,==
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| We were very disappointed to read that the NRC is considering some prc,po:,ed r*1Jl es change*=*, the net effect of v,1h i ch would be to 1 imi t pub 1 i c and pub 1 i c i n t er* est gr* ou p par* t i c i pat i c,n i n the 1 i c ens i n g process. There are three (3) basic reasons why this is not a good idea.
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| : 1. I t would run counter to the intent of the Atomic Energy Act of 1954.
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| * 2._The pu~,1 ic ~nd_publ '.c inter~*=-t grou~*=* ha*.)e r*a!sed :-ignificant
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| *:-afety 1-=-sues 1n NRL 11cens1ng hear*1ngs, l,,1h1ch other*v..11se m.3.y not have been addres:.ed.
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| : 3. I t l1,1ou 1 d g i ,...,e Congr*es:. and the publ i c ::,'et another* e:,,;amp 1 e of the NRC's changing the rules mid-game to benefit the nuclear industry.
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| I n r* e t u r n f or* f e de r* a 1 c *J n t r* o 1 of t h e r:::!e *J e 1 op me n t of c omm e r* c i a 1 n 1J c 1 e a r*
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| el ectr* i c gener*at ion, municipal i t i e*s and public orga.n i zat ion:. r*etai ned the right to have a meaningful opportunity to present substantive i s*sues during 1 i cen-=- i ng prc,ceed i ngs and ha1,..1e them dea 1 t v,1 i th in a re*:-ponsible manner. This prc,pc,sed r*ule change t,.1c,uld -=-e*v*er*ely 1 imi t that opportunity.
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| Fr* om o u r* f i r* =* t h an d ob-=* e r* 1,.1 a t i on s r* e gar* d i n g t h e p r* c, c e -=* s of 1 i c e n '=* i n g the Se abr oc,~'. -=* t .at i on , the pub 1 i c a.n d pub 1 i c i n t ere st gr* ou p s h a*.J e pr*ov i ded a m.aj or share of the i ncen ti 1Je and the -=-ucce-=-s at pr*c,tec ti n,;i the public health and safet:;,, by vir*tue of their* unrestr*icted i n v c,1 1..1 em e n t i n t h e 1 i c e n s e p r* c, c e e d i n g =*
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| * kn O~\, 1 e d g e ab 1 e c i t i z e n s 1 i v i n g in the vicinity t,J i 11 te 11 ;,'OU ther*e is absolute 1 )-' no que*:.t i c,n th.3. t Seabrook is a much safer plant because of that involvement.
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| The NRC, unfortunately, does not have an exemplary record at taking the initiative when i t comes to assuring the heal th and safety of the p u b 1 i c
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| * Th e N RC ,* =* f a i 1 u r e t o ad e q u .,d e 1 ::,,* .3. n d c om p 1 e t e 1 ~., add r e s s t h e issues arising from both the Rogovin and Kemeny Commission Reports is
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| ~\,e 11 dc,cumen ted. The f i nanc i a 1 qua 1 i f i cation i s-=-ue and the dollar*
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| va.lue >?;<pended per a*Joided fatality ar*e t,.,.10 examples of NF:C r*ule-=-
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| change-=* not benefiting the public.
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| Th e p u b 1 i c i s. gr* op i n g f or* an e ::,; amp 1 e t o ..i u s t i f y c c, n t i n u e d f a i t h i n t h e NRC a*;; pr*c,tec tor of the publ i ,: in ter*est. Cc,ngr*ess tc,o seems. concerned
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| .ab o u t b a c k *= 1 i d i n g f r* om '=* a f e t ;,** i s s u e -=* a-=** a r* e s u 1 t c, f 1 e s =* c, n s 1 e a r n e d from Chernobyl and the 1 i tany of near accidents in the U.S. nuclear pr*ogr*am.
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| SEP 4 1
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| , -, ~roiY t'~JSIIII OQCETING & SERVICE sE'cncJN OfFICE OF THE SECRETAll'£ OF THE COMMISilOH Document Statistics l: Date
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| ~ec: ,ed 9//j/~- - /
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| Cc ph * ~e ro~uced A/'- - - -
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| Distribution
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| The ,;;i en er* a 1 pub 1 i c i -=* po i -:. e d r* i g h t n c,v,1 i n a po-:. i t i on w h i ch i t ha-=*
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| never before been in. Should i t support continued use of nuclear power because i t feels the NRC is s.atisf>'ing its pr*imary -:.afet~...* obligations
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| ? Or, should i t support the nation's anti-nuclear organizations who want to bring the industry to a safe and final closing?
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| An NRC de c i s i c,n to 1 i mi t the r* c, 1 e of the pub 1 i c i n he 1 p i n g to br* i n g to l i g h t s. om e of t h e i n du s t r >' *' s s a f e t >' p r* ob 1 em-:. c o u l d p u sh t h e p u b l i c i n a direction contrary to your agency's long-term interests. Consider f or* a mom e n t ::,-* o 1J r* age n c y ' s p o s i t i on ~*-J i t h Con gr* e *=- -=* an d t h e p u b l i c i f ,
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| at some point in the future following such an adverse rulemaking change, a nuclear* accident l,,1i th significant f.atal i ties wer*e tc, c,ccur in this country. Such rulemaking, along with the numerous post-TMI safety recommendations which have gone unresolved, would make the NRC the focus of the nation's news organizations for a very long time.
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| tJe de, not think that either* the public c,r* the t'-JRC is. -:.er**.,red b::,' such r u 1 e s c h an g e *s
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| * kl e u r* g e >** o u t c, r* e f r a i n f r om 1 i m i t i n g p u b 1 i c
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| * par* tic i pat i c,n in the 1 i cen-:. i ng pr*oce-:.-:.* l.,le fee 1 :~-our agenc;,'' s.
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| credibility and the public would be best ser*ved b>-' doing all in your p Ol1,1 e r* t o r* e a f f i rm t h e p u b 1 i c ' *=* r* i g h t an d op p or t u n i t :,' t o c on t r* i b 1J t e t o the 1 icensing process.
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| cc:Senator Gordon Humphrey Senator Warren Rudman Congressman Bob Smith Congressman Judd Gregg Herb Moyer, Karen Moyer
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| I.S. E.A.
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| 53 West Jackson Boulevard, Room 343
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| * Chicago, Illinois 60604
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| * Aug0f,f+CEE-m.. SE1j.6&KY lfflt"li< i f 1rn & StYV ICf 8 RANC H .
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| TO: Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 ATTN: Docketing and Service Branch FROM: Catherine Quigg, research director Illinois Safe Energy Alliance
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| * LICENSING "REFORM" PROPOSALS The Illinois Safe Energy Alliance is opposed to the U.S.
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| Nuclear Regulatory Commission's proposed licensing "reform" proposals because we believe these rules will severely limit public participation in nuclear plant licensing by cutting back on intervenors' procedural rights during licensing hearings.
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| l) We oppose proposed rule Section 2.714, which increases the admissions criteria for intervenors' contentions. This rule requires the intervenor to lay out in great detail the entire case before the licensing hearing even begins.
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| Requiring intervenors to prove their case in advance without having all necessary documents available, limits the intervenors' ability to present the full range of safety issues of concern to them.
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| 2} We oppose proposed rule Section 2.720, which puts limits on supoenas and discovery against the NRC staff. This rule imposes a burden of document research on the intervenor, when that burden rightfully belongs to the NRC. The NRC staff should be protected from discovery, since it is this procedure which may allow vital safety *information to come to light.
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| : 3) We oppose proposed rule Section 2.743,which restricts the use of cross-examination during hearings. This rule requires all parties to obtain special permission from the hearing judge to
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| U~ MJC'!fA" RfGOlATORY COM'MTS5ICII DOCKETING & SERVICE SECTION OFFICE OF THE SECRETARY, OF THE COMMI SilOH Docu ent St tistics Postmarl Date /gl/____
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| Cf _ 0_
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| Cop1e5 ftr C Add' I Ceo Special Di strib
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| ,-,j on r-*foced _ ~
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| /
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| I
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| ' I page two cross-examine witnesses. Intervenors, with their limited resources, would be at serious disadvantage in the preparation of required written testimony, prior to interrogation.
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| : 4) We oppose proposed rule Section 2.749, which allows motions for summary disposition of intervenors' contentions at any time, even before or during discovery. This coule could cause all of an intervenor's contentions to be dismissed before a hearing even takes place.
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| : 5) We oppose proposed rule Section 2.762, which limits the scope of issues that can be appealed. This rule prevents the intervenor from participating in all issues in which he has an interest, including those of another party to the proceeding--and thus precludes a full hearing on all safety issues.
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| The proposed rules are clearly unacceptable. The public interest is not served because the proposed rules make it harder to become a party to a licensing hearing, impose limitations during the hearing itself, and allow motions for dismissal of contentions at any time. These rules should be rejected *
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| - .. Box 186 Moylan,Pa 19065 Secretary of the Commission U.S.Nuclear Regulatory Commia-si Washin gton, D.C. 20555:
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| . --jpn1\ -~ lb1 auic r->.Auguet 30,1986 00(.;KETEO eAOP.DIEIJ 1 51 F'~ ,f,4 ?;'5) US NRC TO THE SECDE.TA-!tY . AND :M:!MBERS. 07 TH& COMMIS'S"Io'N:
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| *86 SEP -3 P2 :06 Ae an iuterTe*or in ta* lioeuaing process for the Pailadelpaia Electric Company'* Liaeriok 11uclear pla*t u11der the naae ot Bobert L,, ~ t~o~t . ~ nda of the Ear:t;h i* ~* Delaware Valle7 I w:iaa, to aubi t tb.~~~~~~-; ~~~**t*
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| in oppoai tio11 to
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| * the, chaaps 1* the ru.lea propo!led by DC ~llfjQ)l~H* *reate* ta*
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| ability to interTea* a*d to fuactio* i* tae liceaaiag process ot citize*
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| adTocatea like ayself. Tlleae rule change come under 10 en Section 2.71.,
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| 2.720,2.7*3 and 2.749. according to my understanding.
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| DISCOURAGEMENT o* CITIZEN P.A.RTICIPATIOB NRC's proposed caaages 1* tae sectio** above are direct.a toward curtail-i*g ci tizea partioipatioli ia tlle lioensiag :,roce a for auoleli.r pla*t*** I
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| * ha Te been actiTe ia thia proceas for the Limerick plant for more tna* 5 years. I aa *either a lawyer or a persoft trained i* eagineering or aoieace. Ia sJit*
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| of .tais I have beeu able to u*derstaud the safety aad legal iesues from the "gut " reactio*e of a person who ia compelled to coafroat the dangers to IUl*
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| and my faaily a*d friends from tae o,era¥on of tae Limerick rea~tor aad al o the ecoaomio impact on me a*d on the areas eoo*oll'.)- from tbe rate afkea re- .
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| * quired* to pay for tllia expeaai Te,dangerous sou:r*ce of power * .
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| EXPERIENCE WITH NRC REGULATIONS AffD B:oARDS The propo*e~ rule caanges are in a completely opposite directio* from n-couraging citize* imput a*d bringi*g increasing safety iato auclear plaat operatio~. NEPA aad Ali legislation i~cluded citiz~* ,articipatioa as a fundame11tal base. My experience of the pas:t 5 years wita Limerick ia that a oiti*e* like myself has to fight for eTer cRanoe to ohalle~* licens&& sub-missions awd Im.C actioas. Only because of ertreme persistence was I able to be admitted as a* intervenor and to haTe three minor contemtiofts accepted.
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| I submitte:d. about tweaty conteations. Had I been able to pay for professional help I probably could aave preTailed o* some of the tecnaical contentions I raised and h*v* argued them with the help of a lawyer before the beari*g ltoard. As a result a number of safety i ssues that are Tital to the community were aever ex1lored. , 0onsequeatly I have bee* forcelto caallenge eaca auta-orizatioa by N~C from bri*ging fuel to tae site,to ~ preseat efforts to aave the operatiag license suspeaded. I aaTe s:,ent thousands of aours of my time without aay recompense and hundreds of dollars of my own fuada. I do aot re-gret this i*Teahent i* the attempt to protect my health and iateres~s 'aad those: of my family and frit'i id* but I aubmi t that this ia an e:xtre-mely waste-ful proces~. It is all baeed o~ aa adversary relation betwee* ayaelf as a citizeD and no. We should be working together to ,rotect ae a*d ta* com-munity. There should be fujds,public funds,to pay for legal and techaica.l experts for citizens,eve* NRC staff members aTailable to help citize* cases.
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| ~
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| ERROR IN THESE PROPOSED CHSGES.
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| f!;
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| 'I'll& rule changes I would have 1ffl.C s,onsor are those opening more chances c,,
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| for oi tizen Jarticipation as tom:hed on aboTe. Ae a ci tizea I haTe be . . impeda:d :
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| by the present regulations. I earnestly request the 1'RC to 1. lower conteatio* 1!
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| criteria., 2.o:,en diacovery TS the St.ff, 3. expand interTe*or cross examinatioa, 1
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| : 4. furtb.r restrict the use of aUJD11ary disposition "Ta. oontentions,and 5.ex1and ~
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| i I
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| the sco1e of issues whio~ can
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| * be &Jpealed on citizen initiatiTe. In the in-terest of safe 1l~nt operation a~d the safety and health of tae public.reject J thia rule for changes in the RboTe regulations. Two press releases about eome of my 1artioipation are enclosed*. Ver-r sincerely yours, t.. ' ,.I -.
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| ~,L, ~
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| U.S. NUCLEAA ltEGUt.ATO Y COMMISSIOII DOCKETING & S£trvtcE SECTiOM 0FFIC£ C5f THE SfC~HA~Y OF THE COMMIS 101'4 I
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| Copi* ltec.eived AcM' I Copies Reproduced SpecAII Di,tributien
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| De c . 26 ,1 984 LrThGD IATE R.SLE.A.SE ~ITIZEN CIL\ ~LENG2 TO PHILAD~LFH IA EL~CTJIC PLANT.
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| r *For
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| ~
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| infe.: R.L.An then y, Box 186 , Moylan,Pa. 19065 566- 4289''
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| A citizen enTir*n*enta list, Re b ert L.~nth eny
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| * f Meylan,Pa.,re,re s enting ~i*-
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| self a nd t* e bra nca ef tae natienal enTiren*ental erg -n izatien,Friends o f t
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| * Eart int e Del aware Vall.,-, is filin!" a petitien t edar *ith tae U.S. Nuole 8 r R9 ~atery-C***ia*ei*n' s Direa-ter, Inspectie.n and Enferoeaent, Wasaingten, te tart lepl pr*-
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| oeedin~* te reTeke tae eperatin~ lie nse is ued t* PHil&delpaia Electric Ce.in Octeber. PECe i.as recently anneunced tae start up *f it1 # 1 rea ter at tae Lia**rick Nuclear P1ant as a result *f t\tis license.
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| Anthen;r c *J1lains te NRC ti.at PEC* "is net qualifiec"r te *11*rate th.is reacter safe-ly". He oi tes *or* taan 50 " specific deficiencie*s and T.iel~tiens in equiJ1-aent, precedures, trainin~, te11tint!;' and saf*~ards. 11 He states, 11 *
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| * tite :publio **alt*
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| and s ref ety are at r isk beoause *f PECo's *J t!'! r a ti*n et! t is reactor" and'rPEC& li.as
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| * willfully Tie lat ed eur. _ eal t'b, sat ety and interests."
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| In is co*11laint to NRC,Antbeny qu*t~s fr** PEC* Yice ,~esidents' r*quests f r e:x:eaptiens fr** NRC re~la ti*n** * .A.nta.eny clai*a taat these c oapreaise safet7 in ffiv* essential areas , (1.) ability t* *Jlerate the contrel r oe* and snut dewn tae pl8nt in case *fan aiccident)(2.) deferrini cennectierr e! e e r gency ~as treat-
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| *ent te 11reTent radiea*cti ve disc hart!:* te t\te public:, ( 3. / leak r a te testin~ te aoniter discaar~es taat ceuld re;ca the publio, ~ (4.) extra Talves en pipes
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| :rre-quirin~ isela-ti*n in case of an accident in the reactor, and(5) A.!l s urance *
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| *f water supply in cas* e! ternad* er explosion,t* ceel a.n accident in ti.9':r-e-a.ct*r and assure a~ainst tae Jl*ssibility ef a aeltdewn.
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| In a ekin~ f r tl\ese exe*ptiens PEC 'a *ff'i.cials s a:id, "Ci.an~es t* f a.cilitat-e tes<tin~ at the Jlrese'nt ti** weuld la.ave an adverse iapa.o-t en eystea turneTe>r and plant sta.lltup'~ Th ey a.ls* SEtid, "If literal ceaplia.nce were anda. ted", t ere weuld be "a c~~spendin~ d9la.y in tae e-pe,ratien.~
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| In \tis sta-teaent t* NRC,.A.ntl.eny says t'lila.t PEC* h.a.s dieceun t ed public aealti.
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| fl' . ,,
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| and safety in r der t* ~et the ,1ant runnin~. He says tkat literal c**plia.nc*
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| is preper te preteet liTes and is what tae r e~latiena require. He states, "'epe d in t ettin~ Liaeriek in OJler~~i n and the financial effects of delay *n PEC* are secendary i sues . - t* tke pretecti*n *f tae publio."
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| " II
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| .A.nt"bon-y oi tes PEC*' *1era..t in~ eTent TeJl*rts te NRC fr** Octeber 27 te NeTe-.-ber 20 when t~e fuel was in tke re a ctsr but t\e precese net started. He says t~at 12 incidents in 25 days ia a 9 h eckin~ re~*rd. Had tke reacter been eperatia~ alaost all *f t'ltese ceuld "llave caueed a seri us failure *f tae syste*, , erlla-,s an .acc-ident-an~. rele a se *f r a dieaotiTit~
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| Re eay~ th at 3 ether citizen ~r*u-,s and the City of Pkila.. ha.v9 current a11~eal* a aa]
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| t e ete-,. Li-rs ericlc *11eratin~, bu.t"PEC* ie as13uain~ ** it dees net ha.Te te res,ec,t eur PP
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| *- * - .._ _____ I
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| .} ,.:_:Jr.OR IMllEDUTE RELEA.ii RobQrt.L.Anrtaany Jilox ]86, Moylan, P~. 1~065
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| ,UNSAFE OPE.RATION OF PHIL!.D~LPHll ELECTRIC NUCLEA.b.
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| 215- 566 - 4289 REACTOR AT. LIMERICK, PENNA.. 7,f "Event11 11 in, g6 De.ya; Fttbruary 27,1985 waiea is x~ 911Tironmental eitizen aiTooat~, Ro~ert L.Anti.ony of M0ylan,a western 1uburb of Pailad81, ia, who ~0.m done raeearcR ~n Pkilndelphia Elaotri~*m nuol~ar plant for fiTe l99~rm Qurin~ t2e oompleition of t~8* unit No. 1 reaetor,is que~tio-nin~
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| tke* U.S. Nuclear Re~latory Commi1sion'e lieen~~ ~antei to tae utility in Oatob~r
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| **f 1984.
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| k1 a Tolunte:eir Anthony *~-1!!1 re,resentei himself and ~im fA,lllily and Friend~~~ th*
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| Eart~ in t~e Delaware Valley in aaarin~~ b*fore tRe mtC earin~ bo~r* in epp*aitien
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| : {
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| * te 'a *11eense. to opereite tlte plant. Now 'Ile is iutndiTII!; 1,n ur~ent :,e::hi tion it~ Harcli 1
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| * *+-~-~'tiett'ton;"-+1Jir~oter*of NRC'si *-Offi*1.-11-bf Nuol8ar 1teao*tor R\l!-gulationi, to-~u.1f#n.t the
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| *,, lioense issuet to Pltila.EleGltrio t.ll.rc,u~i. a "ma.ow Cause,." ordier whieb. wouli requir*
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| I ta~ utility to aQoount for ti.$ 8a!ety tefioiensies in tae plan~~e son~t:im.~tien in
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| * :*:*l!l.it!i tion to tae errors b~ "peratorl"I, ainse tl!e leadin~ af nualear fuel inte tae-
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| *
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| * rnoto~ and tke startin~ ef t&e fi sion reaetien prosee~ OTI Deoember 22,1984*
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| lntaony ~laim11 the plant is Tiot saf~ ani aites ta~ operatin~ reeori to d~t&. On
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| . tlte-
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| . Feb.11, 1985 Pa.:Ha.E1&0tria answerei',.._mtc
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| * inspeetor w~o reportei on Jm.11, 1985,
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| * ** ,, I Tiote taat sfn~e tRe start o! t e fuel loai aotirttiee,tkere aTe be9n ee~-
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| **. *e'f&l in11t~nQe1 of problems w'll.ie'h. apparently 'llave iTITOl Tei personne1 1rrQII's ** wllioll
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| *. lta.d me t~ belieTe t'hret t:ti,G.Y may be indicatiTe ef an a.iTers-e trend."
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| T e oGmp~ny responie~ t~ ta1~ oritioism, "PEC~ mana~ement aas alse been oonorrnej
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| *wtta ta~ num~er of LiQenee ETent Report11 an<< u8pectW-li~ense eTent rep~rte w~i~*
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| ,-* llM* e,eeu~ 11inc,~ Unit 1 reo--ei Ted ths- license to operate at low powar ** "
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| ' . ' \
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| . .lntaon11 ea.ya ta,.t tme reQord :ls sm.~okint;. He _e+/-ye ta~t all trur "eTent1 11 ar-i;* 1
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| '. ' tOl!l!Hb l
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| , .. ***r.iou11 mieti:,,kee in rttaoter 01ur-ratiGn wlliffll.,.oou 11.aTe reeul ted in nuellt"ar ac11-icie'l'lts
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| ,*ani re.ii0aetiv~ r~leaeea to the ~ommunity, nad t~e plant been in full 01erati$n.
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| - ' '' I q
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| * _Ta9re were 74 of tae!8 potential nuolear aeoid8nta from Oct.26,18~ to Jan.31,1985.
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| ,, PEC(l) reoorl!lec!. 27 of' t\teme a!!I Pereonnel Error ana 31 8.m Desi~,Manufaeturin~,
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| I
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| :,,'G<<metruotion/Installa tion Defieiensy. Tl!te former we:ire caueea by ~,era tor mil!!take1, C *
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| ** tae latt*r by oon tnuetion mistakes int** plant,intera~ting wit* ~perators ani m~intenanee worker ,ATitaony ee,ye. H~ ea~we tltBt tlte treni ie ~ettin~ worBe c ~8
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| ** potential aQoiient in 65 iays tarou~k De~. 31 ,and 26 in 31 iays of Janu~ry. Tlte rate elimbe!i f'r&m 9ne,..eTent"every 1.35 ie.y11 to one eYu*y 1.2 **aye.
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| int ony tainke tagt N'RC dia TIOt properly reTi~w tne plant. He wr0te ts R.R. Denton, "NRC muet be 'kela responsible f0r tlte la.Qk of reTiew of all tme eu:Jr.Ycnlli.n!!e* teste rtquired before initial eri tieali ty" He toli Dtrnt'on, to0, taat"NRC 8A0Uli 'ila~ineiete en a eom11let1B reTi'ew of ieei~ and eonetruotien of all eyetemB and oom,en-ents re-la-te~ to tke plaTit saf~ ebutiown eapability before ap,rovin~ operatin~ t~e re~ctor" Ant~Gny referr1td to a 3onault~nt'B re,ort in D~aember 1984 waica ~e cla.ims ekouli kaYe warneli NRC ani 1m!l,ended tlu li1umee. T1'li~ rl!,ort aon~lmiei: tlrla t the s~eigo aiequaey ol t~e safety eyetems f~r ~~fe ebutdown couli not ve autb~ntioate*~ bea6uee that waa U89d te e~0W plaff~ sed'e
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| --- -~- -
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| - ---~--s-ltutiowo "** -- * - - - - * - - - - - - - - *
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| /
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| \
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| r [
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| Anthony ie-e~mrtnaen. tlfl,it mtC mu.l!t enut clown t~e r-1.'taetor until all ~af~ty al'!l'ecttl"I
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| \i.a:ve beftn reTie"w!!l 15 nt1. made 1*igb.t-,an1 until J-ECo <'m~J.0y(u~ ha:"~ btuin "'Lll1'quahly tr8innd:.
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| Hs ~&ii, "Fer the pr~~*nt tk&~* is no way ta 0veraom~ t~@ i~fici~neiq~ or to r~buili t~e ~bility ~, t~e pers~nnel to fun~tion. eAfely iu 8n ~11Yiro~~*nt ~k~re t'IHty rlo oo-l; h11Ye eanfi,a_en,-,o in tb~ :;el ant -'lr thl'liX una'!!r1!:te.n-!l.i T?(!: of t:.-ie :r,1.*o~f)tH~
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| ~r t,N~ir eff~*tiTsn~~" to ~anil~ l~-......__" _.--,. /
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| * Wells Eddleman Durham, NC 27701-3152 9l~~~f-r1P07 6 US NH C <//30/f-'6 Secretary US Nuclear egulatory Commission Attn: Docketing and Service, Comments on 51 FR 2~ 5SEP -3 P2 :Ql Washington, DC 20555 OFFI CE OF _:!; I f,t fAf-< )'
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| DOCKETIN G & SCRV ICF.
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| Comments on proposed rules re intervention, 51 ~ ANCH 24365 et seq.
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| by Wells Eddleman The Commission is deceptive, throughout this proposal, in its claims, as well as in what it does NOT reveal . The first point that needs to be made is that the Commission has shown no need for "improvement" in the licensing proceedings . There is no showing that the resources of the NRC Staff or its Licensir:g Boards are inadequate to deal with the issues now raised in such proceedings, under the current rules .
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| Nor has the Commission shown that redirection of such resources would
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| * lead to any benefit to the public health and safety. Indeed, it appears that the proposed rule changes would result in no improvements and would create the atmosphere for substantial detriments. The Cornmiss on evident-ly intends to remove the resources now spent in dealing with contentions by intervenors, and not to redirect them at all.
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| This is absurd, since there appear to be no construction permit pending for nuclear reactors, and a declining nimber of operating licenses pending, as plants are either abandoned or licensed, so that NR'C now has more resources available to deal with a given licensing proceAding than it had in the recent past, e . g. the early 1980s . Moreover, the NRC has ad,op t ed hybrid hearing procedures for many other types of applications and amendments, reducing both the review in public, and the resources used by the NJtc in dealing with the public and potential or actual intervenors in these cases. Thus there is less strain on NRC's resources in actual nuclear licensing proceedings now than formerly. That means NRC Staff and Licensing Boards do not require their scone of review to be restricted as these proposed amendments would restrict them *
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| * Why do I say restrict them? Because Boards cannot pursue an issue without a contention, in general, and the NRC has greatly undermined the ability of Boards to review issues sua snonte by its own decisions, e.g.
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| V.C. Summer, which creates elaborate opportunities for the Staff or Applicants to present their own views and prevent the Board from seeking independent expertise or information . (This is yet another of NRC's attempts to prevent independent-minded review of the self-serving data provided by Applicants and the Staff, or to prevent the finding or use of data or expert opinion withheld or not presented by the Staff and/or Applicants) . -
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| A key aspect of content:5.ons which the Commission ignores is the ' :
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| better review produced within the Staff when the issue is raised. NC ~
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| Staff being normal bureaucrats in some ways, they are naturally afraid *O of being caught without looking into a potentially important issue . !
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| Even though there is great pressure on the Staff to "justify" what they i§ or the Applicants propose, it is obvious from the Staff's own operations J that they do give increased attention to review and analysis of matters raised in contentions. Their own documents show that they look into ~
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| the matters involved with contentions more, and even include on some forms ~
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| the item that a contention has been raised regarding a matter .
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| Because the contentions raised reflect the concerns of the public, not just those obvious to NRC staff or the self-interested Applicants who seek to minimize public concern about nuclear safety and all other aspects of nuclear energy that may be harmful or negative, contentions
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| ....
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| * I"'\
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| 'I~ uciri:Af6 Y{~M'MC$Sf0N
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| _... " IIOCKEiNG & SERVICE SECT JON
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| ' ,- OFICE OF fHE StCRETAR'f' C,, 1H C:OMMIS51QM
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| )
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| caa usefully broaden and direct NRC S'taff review, and public awareness of issues. I have found that news media seem more interested in the admitted contentions than the more important aspects that NRC regulations already exclude (e.g. most unresolved safety issues, financial qualification, and the economic and environmental risks and benefits of nuclear power plant operation).
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| Thus, even though licensing boards are often cavricious in tossing out good contentions (and sometimes admitting weaker ones), there is a positive result from allowing braod-ranging contentions in increasing the awareness and scrutiny of both the public and the NRG Staff to issues they may have overlooked.
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| It is also true that most important issues that the NRC allows to be heard under its current rules are complex enough that the full details are not available at the outsen of the proceeding -- indeed, no information may be available, because documents are unwritten, e.g. the BIS, SER~
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| emergency plans, etc. etc.
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| The present system of the NRC' allows Applicants to amend or revise their applications at any time, to submit very incomplete information, and to continually add or change information from basic documents such
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| * as the Final Safety Analysis Report (FSAR)o Meanxwhile, even the present rules, as interpreted by NRG, greatly restrictthe intervenor's ability to raise issues and generally do not allow contentions to be amended even in light of new information.
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| Some examples of these problems from the Shearon Harris proceeding (50-400 OL) include: the Licensing Board refused to order serviee of copies of the FSAR on the intervenors/petitioners. Vague and incomplete information was often found in.:t the FSAR and information was - '
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| left out of both the FSAR and the OL stage Environmental Report.
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| Intervenors were required to make contentions at the outset conce:r-ning documents which didn't even exist, such as the Emergency Plan.
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| The Licensing Board dismissed contentions arbitrarily. For example, concerning the em:irgency plan, intervenor CHANGE raised the problem of evacuating boaters and others who had consumed alcQp.ol or drugs to an intoxicating degree, from the large recreation areas on Jordan Lake within ten miles of the Harris nuclear plant, during an emergency.
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| OneBoard comment was to the effect n'Don 1-t you think the announcement
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| * of a nuclear accident would have a r sobering effect t ? 111 * ,- On another contention regarding the adequacy of evacuation information for transients in the evacuation zone {EPZ), the Board rejected the content~on, even though the Board itself, transients in the area, got lost on their way to the nuclear plant from a nearby city, in spite of having a clear and detailed map of their route, given them by a power company attorney who repeatedly, in my presence, explained the route to the Board judges and answered any questions they had about how to get there. I could go on and on with examples, but the basic problem is clear:
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| Intervenors are expected to rapidly digest huge amounts of information, identify key flaws in it, and raise these issues in a legal form that no one can clearly define: The contention with 9:dequa te bash and specifiei ty. -.As in s*upreme Court Justice Stewart rs defini tio~l) "I know 1 t when I see i t't, in the judges r opinion, appears to be the standard for admittir:g contentions., Intervenors must do this with incomplete, misleading, and even non-existent information, as they are not allowed to freely amend their positions, while A:pi,licants and Staff are free t0 do so. The present system then allows discovery (against Staf~ and Applicants skilled in objecting and delaying) to find out what lies behind the tips of the icebergs the admitted contentions usually form. Then The Applicants typically move for summary judgment (after limiting discov~ry as best they can) and seek to overwhelm the intervenor, wh<5 will als6 have difficalty getting expert assistance due .
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| to lack of money and fear of harassment among even those experts willing
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| to provide services free or at a cost intervenors can, affordv Rt this sta$e Applicants have nothing to lose by ma.king false statements under 05th (I never heard of any action taken against one who states something untrue. For example, A~plicants in Shearon Harris gave an affidavit stating that atoms are comparable in si~e to micron-sized ash or dust particles, or words to that effect. This is clearly false; atoms are much smaller. The NRC' Staff 1 in stlavish adherence to Applicants (their typical position, so much do that their responses were recognized as II second motions for summary disposttion) swore to the same false "fact" and no action for misconduct was taken against them.f The Board generally refused to deal with the credibility of technical .s:withnsses of any kind.)'
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| For example, the Harris Applicants presented a psychiatrist as an expert on drug abuse. His resume revealed that :k:he had done considerable work and published articles (though he did not represent them as professional publications in his resume, which was so detailed as to include letters to the editor he had written, listed by date and publication as* I recall) on "'nuclear phobia# for various branches of the nuclear industry and DoE (US Department of Energy}. The presiding officer would not allow me to ask him whether the American Psychia~tric Association or Arrerican Psycho-local Association for other professional bodies, e.g.) recognized. "'nuclear phobian as a mental illness.ether questions along that line were clearly going to be ruled out. Yet it is clear that this work shows not just work on behalf of clients inthe nuclear industry, but an attemut to use a gloss or appearance of professionalism (the witness had headed the Phobia Society) for what essentially is a pro-nunlear public relations camp~ign that was not professional in terms of the witness' own resume).
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| In an even worse example, a security consultant, whose name had not been made public by intervenors, had to have name and qualifications stated on documents filed with the Board for review of the qualifi~ations of our proposed security experts. This expert them told us that clients were calling and saying "You're fired because you're working for those o:bzies on the East Coast", etc etc and that the expert would have to withdraw in order to maintain a livelihood. When facts concerning what had happened, which in my view was oleaffl:y intimidation of a potential witness by the nuclear industry clients the expert had, was brought before the Licensing Board, the Board's response was essentially "Isn't that the
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| * way the world works? If you work for one side you don't work for the :-*,other And of course, that is the heart of the matter in the proposed rules 51 FR 24365. The NRG' is working for one side, the nuclear power industry.
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| The rules do not address abuses of the bearing process by A~nlicants, e.g.
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| maintaining clearly erroneous early fuel load dates in order t6 Dush proceedings forward. This occurred, e.g., in Catawba (50-413/41 4) on the diesel generator and whistleblower-raised issues, in Harris, the claimed fuellload date was known to be 6 months or so too mptimistic by the Staff, but Applicants took 4 separate delays as reported in the local press to slip the fuel load date back 6 months, and who knows that it may not slip further, since even the information available to NRC 1 s caseload forecast panel in the past is not now available to intervenors.
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| The danger of the proposed rules can be seen in Grand Gulf, a case with no intervenor.; where the NRC' licensed the plant 'Using the technical specifications for a different plant (one not the same as Grand Gulf).
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| Tb.is grand goof was eventually discovered, but who knows how many other goofs are not found yet, and may lead to accidentsi As one NRC witness said to me on coming off the witness stand nKeep it upo It helps keep them honest'"* Unfortunately, as Diabla C'anyon shows, great effor:bs in that regard* are needed, and NRC tries very hard to prevent honesty from breaking through to the public's attention.
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| To take a few examples from D:tablo, the Applicant there had tried to cover up the risks from an offshore fault (evidently capable ~fa massive earthquake), and NRG staff had too often cooperated. The seismic issue was dismissed by the Diable licensing Board only months before a junior staff member at the plant discovered that the seismic restraints on the entire plant had been built backwards due to wrong blueprints.
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| If the intervenors had had the blueprints, they might have noticed wrong directions. It's hard to get bluep:bints sometimes (I got some originals in Shearon Ha~i.!3 about the control room that were virtually um>eadable.
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| ~ T h e Applicant~'1.'nformed me that no better copies existed).
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| But Diable's debacles don't end there. As the Commission well knows, it met in secret session trying to find a way to license Diablo and was told that its proposals were illegal. The Commission overrode the objections by majority vote, and attempted to suppress the transcript of the meeting. Once the transcript had been leaked to the press, the Commission proceeded with rules revisions to prevent teanscripts of such meetings from being taken in the future. NRC' Staff member ISa Yin, who had identified important deficiencies in the Diablo plant, was evidently pressured into reversing himself for the industry's convenience, and later resigned. These are the actions of a "Henry VIII"' NRC', and
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| * there don 1 t seem to be enough St. Thom.as Mores (or Isa Yins) around to make up for it.
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| Another blatant inatance of NRC Staff misconduct was at North Anna, where the utility could not be prosecuted for concealing information about buildings ~inking or moving on foundatocions at the plant, because, it was reported, the US Dept of Justice found that NRC staff members (perhaps it was far enough back to be AEC, but same difference since AEC.' s nule s and staff were adopted by NRC') had known of the problem and aided in concealing it.
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| Just recently two judges in Indian Point observed that the NRG Staff had wi tbheld from them an NRC' study indicating problems with the alerting system at Indian Point. The .1udges evidently became aware of the problems, and perhaps of the report, via a contention I raised in Shearon Harris, which was litigated. Without that coneention, would the report and the Staff's withholding of it have come to light?
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| The above instances of NRG' misconduct (or worse) show why you need intervenors with lots of vigor and curiowsity, and discovery from the
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| * Staff. Intervenors and discovery cannot overcome dedicated deceivers but they create the possibility, and they can focus public attention on -
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| wrongdoing. Another reason you need discovery of the NRC' staff is that often the Staff's opinion is based on next to nothing, or on their willingness to OK what the Applicant has said. Discovery can also fish out contrary information that the Staff has rot brought forward, or that the Applicant is hiding but the Staff knows about, which undercuts the positions taken in public by the Staff or Applicants (usually they take about the same position on almost everything, the Staff often going beyond Applicants in its zeal to deny intervenors on everything from pro,e sdural trivia to important points). n It is worth pointing out again that former NRC Chairperson Nt1,eio Palladino could not identify to Congress a single case where intervenors had unnecessarily delayed a nuclear planto Indeed, intervenors can be very beneficial in catching errors and increasing the safety of plants.
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| For example, NRC Staff nay have given more attention to radioactive releases from Harris (and required more of the releases to go past monitors) due to the questions I raised about this and othe:rs raised. NRC Staff evidently borrowed the 11 vessel lid unzip"' from oolt failure from the McGui111e inter-venor Car..oli_naiEnvi:ro8:mental Study O~up. Intervenors wi.th more resources sucn as the Un on 01" one erned Scleh'.tlsts, have accompl1slied much more. '
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| Here are some more detailed comments on the proposals of the NB'C and those of Commissioner Asselstine.
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| NRC's proposals look like a wish list compiled by attorneys for Applicants and the Staff after a night of heavy drikling. As noted above, NRC' has shown no need for changes, and has not shown how direction of resources now used in ways these proposals would eliminate, would or even could improve protection of the public health and safety. NRC: has not included the differing views of the non-industry members of its so-called Regulatory 1w i << Reform Task Force or of its Ad Hoc Committee for the Review of Nuclear Reactor Licensing Reform Propcsals.
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| These di~sents woulc clearly show how biased the NRG is in favor of the reactor-building industry. The title '"nuclear reactor licensi~ reform" is a giveaway, since there will soon be no nuclear reactor licensing because no one is ordering nuclear reactors. This is another.reason why rules changes are obviously unnecessary.
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| Of course, the reactor-building industry wants to make it easy to sell its wares again. And the industry is fond of blaming the victims, e.g. the public and intervenors, for its troubles, which are largely self-
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| * inf'licted. For example, regulatory requirements have increased because the AEC/NRC/industry lax attitude toward safety, ra tber than having things done w right the first time, turned things like fire protection, post-TMI re~uirements, and plant security into add-onse The industry's economic di~fioulties are likewise ita own fault. I can't recall a delay being listed in NRC 1 s Yellow or Green Books as "'due to intervenors" or ndue to public oppositionn. No need for the plant, inability to finance it, unf'oreseen construction problems, or the latest favorite, no reason given, are the kinds of thir.gs you see in the official reasons for nuclear plant delays.
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| These proposals are particularly dangerous because if there were a next generation of nuclear reactors, they would be different designs, which would be quite incomplete despite NRG's claims to the contrary in seeking "standardized" licensing or designs. If intervenors cannot conduct effective intervention on these new designs, there is much greater likelihood, because of the industry's willingness to cut corners, and NRC I s laxness in "regulation", o.f accidents and difficulties carrying that "next generation" to the same eionomic, technical am political doom as the present light water reactor technology has come to, but much more rap~dly.
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| The p reposed item 2 change to 10 CFR 2.714 (51 FR 24366) reverses the burden of proof, basically requiring the intervenor, on minimal notice, to assemble a complete casex one ach contention before it can even be considered. The burden of proof is on the A~pli cants. This provision violates section 189(a) of the Atomic Energy Act( which the Commission 1
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| violates often enough, and is reversed in court) by denying hearings to persons whose interest "may be affected"- by the proposed licensing action.
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| The proposal violates elementary due p._rocesa in that~l~,,rec;;mires an intervenor to prepare a complete case without access to~flformation about the plant. Public document rooms at the local level typically acquire doclllllents 4 to 6, or even 8 weeks after they came to NRC', and their iocal staff typically have little time or training in dealing with the documents. Worse, the documentation need not be comFlete. If the Applicant were required to file complete documentation, including expert witnesses and all 1documents they would rely on to prove that every part of their application meets every NRC reguirement, and intervenors were then given a year or 18 months to review it an\-prepare contentions of the form required, that might be possible. Tb.at requirement of Applicants would be analogous to what is proposed by NRC here (Hrequirel!IV" 1 in the previous sentence means required by these propo sale).
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| As a practial matter preparing such contentions in a short time is impossible, since the required information is 111ot available, the (possibly quite damning) information held or wltheld by Applicants and NRC staff is not available, one has to recruit witnesses and locate documents, etc. For example, I believe it took the Harris A:,ppicants' Washington Law firm, with huge resources including over 100 staff attorneys and essentially unlimited funds Y"'We can hire the world"' one of their lawyers told me), almos,t,.,a year, or a bout a year,
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| (\_\\ 1. to assemble a schedule that would allow them tckr':ri tiga te a few dozen
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| ~~ contentionse Even then, they had not been required to present their xcase.
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| No intervenor has such resources, so no intervenor could do it, and ce~tainly not in a mere 90 days.
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| In effect, the intervenor is required to do more than meet a motion for summary judgment, just to get a contention admitted.
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| Intervenors are also required to show they can prove their contention
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| ,ind that, if proven, the contention wouilid entitle the petitioner to relief (e.g. my siren contention In Harris wouldn't meet this test since I don't live within 10 miles of the plant, and would cmsider it foolish and dangerous to do so, but sirens are not required beyond
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| * 10 miles).
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| By stating that contentions may only deal with cases where "the a-pplica tion fails to contain information on a r elevent matter as required by law't 51 FR24371, emphasis addedm, the proposed rule would not allow lack of information required by regulation, or lack of information mm!l:l where there was no specific statute requiring the information in the application, to be litigated. Thus, a clever lawyer for an Applicant would draft an Application containing virtually no information except that explicitly requ1red by a statute, and put that information into confusing form so that it would be difficult to define, much less dispute. Only NEPA would be left, and NEPA's statutory requirements for the content of environmental statements (and EIS 1 s) are not so well defined as to be impervious to the strategy of minimal ini'orma.tion in confusing form outlined above.
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| Moreover, the proposed requirement of "significant differend:;e''"' w i th amendments and staff reports (2e714(b)(2)(iii) as proposed, 51 FR 24371) would, given the ability of s*taff and Applicant writers in weasel-
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| * wording, make it almost ilfil)ossible to prove tmt a difference was significant. E.g$ the Staff might well state "we have changed the maximum dependable capacity of the unit from 900 to 868 megawatts but in our opinion this change is not significant') or the lik:) for any change whatsoever.
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| The proposed section (d)(2) {51 PB 24371-72.) gives a 11st of ,
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| excuses not to admit contentions that can be tailored to almost fit QJJl.1,tk~,
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| (,iiat's good enough for the NRC, unless a reviewing court clobbers them, and then, as ifl financial qualifications and medical arrangements for contaminated injured persons, the NRG will try to weasel out of any real change. e.g. in its discussion of GUARD v. NRG* on the medical arflangements the Commission invited its licensing boards to do what the Couut had forbidden the NRC to do, namely to keep on with the old rule) e Not only are the summar7i judgment (~enuine dispute **. material issue of law, fact or policy') standard there, and the prima facie case standard (a stronger one than is now in NRC' case law: this one says "prompts reasonable minds to inquire further .** m) but also theeasy-out
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| "'appears unlikely that petitioner can prove 11 a "set of facts"'e What a set-up for arbitrary and capridcious rulings; the "no consequence" test tied to a petitioner's being entitled to relief, instead of protection of the health and safety of the public, or finally, that an issue of law is what's there and thus no discovery will ~e allowed -- limiting the
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| facts available to petitioner in trying to prove their point of law.
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| These are essentially formulas to deny intervention. They restrict intervenor so greatly that due process in allowing intervention or admitting contentions is effectively impossible.
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| No such requirements are made of the s*taff or Applicants, e.g. to set forth* their complete cases in opposition to each contention proffered, to show that they can prove their case, etc. This is just another aspect of the one-sided nature of these rule proposals.
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| In effect, th~ peti tio~;- 118-.s to~win ~n tpe n_\eri ts to even get into the proceeding.~ tif\l CD/J~tJa- ~ 6 O,we.,,Pn,ava.,
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| Of course, Connnissioner Asselstin is right to suggest that the decision on who gets to intervene ("does the intervenor have any interest that may be affected by the proceeding'", which is laid out in the Atomic Energy Act) should be separated from assessment of contentionsl There is no reason why parties who do not present contentions (as interested governments e.g. States and municipallties may nomiw do) could not participate as parties without contentions, conductting examination under the Prairie Island doctrine or as interested governments now can.
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| But the more important guestion is whether such a mine field of legal barriers is allowable. NRO typically seeks to limit the public's
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| * rights to the absolute minimum required by court interpretations of the law, and NRD is often reversed in court due to its violations of the law.
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| The Atomic Energy Act, section, 189(&} clearly provides that the Commission
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| "'shall grant a hearing upon the request ol an! person whose interest may be affeifoted by the procee ing, and shall admit any such person as a party to such proceedings. 11 (emphasis added)
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| The courts allow the NRC' only reasonable latituxde to ensure that frivolous requests are not grantedo Given the large interests that a nuclear plant impacts (e.g. Chernobyl was felt around the world, the NRC 1 s director of Nuclear Reactor Regulation, (NRR) Harold Denton, stated in Raleigh NC on July 2, 1986 in public th.at the worst accident at the Harris -plant would be like Chernobyl), and the huge impact of nuclear plants on people's pocketbooks, land values, etc., the personsJ....~
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| whose interest may be affected are virtually all of us. Pf,,C.! ~ ~ e . . / b , ' l , v ~ *
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| * Moreover, the purpose of this requtrement is to assure the protection of the public health and safety. NRC may not make it so difficult to use this provision of the law, a fundamental provision of the act under which the NRC' operates, that 1 t cannot be usede NRC may not twist court decisions to deny the rights bf persons whose interest may be affected by nuclear power plants. Essentially, the proposals require any intervenor to win before she/he/or the organization can even begine This is not just illegal. It is fundamentally stupid and opposed to the basic principles of American government. It is stupid because it prevents the public from either having influence or giving feedback to the NRC ar:rl the nuclear industry, both of which have repeatedly demonstrated inadequate attention to nuclear safety (with adverse consequences to the industry *.* you should remember that if the public will not tolerate the nuclear industry -- one more accident could create that situation --
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| the entire industry is lostl. It is opposed to the principles of American government because it not only denies public scrutiny and public participation, but does not permit the use of the adversary proceeding to elicit facts. Who is more likely to catch the fox before it gets into the chicken coop -- tb.e farmer whose interest may be affected, or some bureaucrat in the National Regulation of Chickens office in Washington?
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| You don't have to eelieve the NRC is strongly o~posed to public partici-pation in its processes (though the e~idence of that cries out) to see that an adversary will be better at finding flaws than some bureaucracy.
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| Even the NRC must realize that Ronald Reagan's artic!,Ulated philosophy
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| is that people are better at protecting their own interests than the government iJ. So why won't you let people at least try to protect their own interests?
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| I have described the present intervention system this way:
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| It's like football played on a field sloping 45 degress downward toward the goal you defend. The other team has 22 ~layers. You have 5.
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| You never switch ends of the field, and the referBes are crooked.
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| By contrast, the proposed system looked like this: the field will now slope downward at 89 degrees toward your goal. This can be increased to 90 degrees at the referee's option. The referee isx still basically in the pocket of the other team. You will not be allowed on the field until you convince the ~eferees that your team can score at least one field goal or touchdown and that the referees will not peanalize you on the play where you score. If you are allowed on the field, the opposing team can Kjump on you at any time, not just when the ball 1s in playl You will have to show the referees your playbook in advance and you can only run the plays the referees allow. You cannot ask questions of the referees. After the game, you have to write the a~peals as only the finest lawyers with elegant resources would *
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| * Tl:le game can start by surprise and you will have to prove that your team can defend against any offense the ofuer team might use.
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| Now, of course, under the present system, no intervenor has ever won a final NRC decisiono Under the proposal, there will be far fewA~
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| intervenors and far fewer areas examined more closely due to contentions (because there will be fewerH contentions). The NRC' and jndustry are not satisfied with their present stacked deck, in which the !l18.ssive economic resources of utilities and waste dumpj;ers (paid, for utilities, by their customers) go against the §Jl.._~ resollt"ces of anyone willing to devote time and money beyond the reach of most citizens just to stay in the game.
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| Instead, in addition to the intervenxtion rules changes condemned above they seek to make it virtually impossible to get information from the Staff (Be warned, the Freedom of Information Act will be used -- even now, though, the Staff's notoriously slow and uncooperative resnonses to FOIA requests are an outrage. For example, when the management contention~ in
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| * Harris was tried, a FOIA had been sent well before hearing to NR C Staff.
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| Response was delayed until after the record was closed. How cleverJ )
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| I have already seen how hard it is to convince a judge that you need information when you don't even know the informatior 'aDIIQt; ii&' or what it reveals or connects to -- that's why you have discovery, to find out what they other parties know and what they may conceal -- under ~resent NRC rules. the proposed 2.720 would prevent any relevant facts from being revealed unless they support the Staff's ?osition. Facts that do not support the Staff's position could be concealed, and reasons for the Staff's position would not have to,be given. In effect, this places the NRC Staff agove the law. This is no codififation of cUM-ent law. It is a travesty, particularly since the Staff now has less cases to deal with than
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| ~ 17,J\f£,v
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| ;p iji l- 1 has for about 10 years, and thus roore time to answer questions.
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| ~
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| One has to wonder the relation of these changes to nuclear waste dump siting. In spite of the claims that they relate to reactor licensing (and that's clearly the industry, reactors, that's pushing them), the reactors all produce waste and the lack of waste dumps is a large political and tedhnical embarrassment to the nuclear reactor industry and friends, eog. nuclear fuel producers~ food irradiators, etc. Since the changes are being made in the basic intervention rules of the NRC, the same "guaranteed license" set up that seems planra d for reactors would also apply to nuclear waste dumps. ! assure you the public will not stand for this.
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| The ~roposed section 2.743 revisions on evidence are NOT a codification of existing practice. Cross examination is a fundamental right of a party in our system of justice, and is very important in NRC proceedings in addition because harassment of potential intervenor witnesses and the ~reat dispartiy of resources between the Applicants/
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| Staff (well-funded) and the typical intervenor (.:mxa~ usually unfunded or underfunded) means the intervenor must, as lmng-standing precendent allows, make (intervenor's) case defensively by cross-examination.
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| Of course, the preponderance of the evidence standard, which is evidently used in NRG' cases to allow, for example, some contradicting evidence to be ignored because a larger volume of evidence upholds the side that con:bradicted its own position logically, as a result of crosss-examination, means that intervenors now have little defense. As just stated, if the intervenor on cross elaicit~acts which together logically contradict other parties' position, the fact that the other parties put in more evidence is still used to allow the other parties to win, e.g. by considering health effects onlt within a certain area (50 mile radius for coal particulates resulting from Table S-3 effluents from
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| * uranium enrichment, Shearon Harris case, contention 8Fl by Eddleman) for example.
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| Neuertheless, the proposed rule takes away any defense unless the presiding officers allow it. It will often take almost as much time to thoroughly review a cross-examination plan as to conduct the cross.
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| Indeed, such plans were rarely used in the Harris proceeding, which ran from 1982 to this spring (1986) before the ASLB, and is now on appeal.
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| Moreover, the level of detail (objectives, questions, and assumed answers) is very high and the proposal evidently seeks to deny cross-examination even when a plan is presented, if the officer determined it was 1
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| tnot necessary for a full and true disclosure of the facts" -- well, how is the intervenor supposed to challenge such a determination if it is in error???? There are no procedures. As it is now, the presidiag officer may rule out any question, and often the presiding officers disallow pertinent questions. This proposal would remove even the defense of cross-examination from intervenors on whom the burden of proof had already been unfairly placed *
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| * To elaborate a bit on the how-challenge-denial of-cross question, any order denying cross could not, without revealing the plan, speak other than in general terms which are hard to challenge. Any challenge, in fairness to the other parties, should argue from the plan in order to show the basis of the challenge* to the order denying cross-examination.
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| Yet this would reveal the plan, which is legal strategy etc and exempt from disclosure. Of course, the rule as drafted appears to require an order to allow cross examination of any witness. Usually, Auplicants will be able to assign numerous attorneys and personnel,to prepare plans, and to conduct cross. Intervenors, without similar resources, will also be vulnerable to summary disuosition motions, which could be prepared by computer in advance, only being adjusted slightly to be dropped in at any time, disrupting the intervenor's work and examination.
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| Summary disposition. One of the things that I found most irritating in the Shearon Harris case was the fact that the presiding officer would allow mosions for summary disposition both before discovery was o'mpleted A
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| and ffter the deadlines for filing such motions had passed. I had been naive enough to expect that all the parties would play by the same rules, and that abaent an extension of time, a passed deadline precluded new motions for summary disposition. I was wrong to think such fairness mi~t exist in the NRC'.
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| 0r at least I was wrong to expect it to exist. Applicants would toss in affidavits and motions without warnin~, and I'd have to deal with themo Forewarned by such "sneak attacks I did manage to get some consent to not having summary disposition motions served during hearings.
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| Tb.is protection, which was negotiated in Harris, would be removed by the proposed rule.
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| The biggest problem with this rule is that '"at>ifarent that a genuine issue of fact is no longer in dispute" is in many Applicants' schemes ee.quivalent to "whenever we can put together something that looks like tha tn, and worse with the Staff or FEMA. I was confronted with sunnna::ry disnosition motions with sworn affidavits an emerijency planning to the effect that language stating (certain information "shall be in the plan"'
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| did not mean that that information had to be in the emergency plan.
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| The Licensing Board accepted these motions containing statements which were and are absurd and self-contradictory on their face. Obviously sim1lar motions conld be drafted by any clever attorney with the aid of compliant affiants (I've never heard of anyone being prosecuted or even reprimanded for making a false statement in an affidavit supporting summary di1rposition in anV NRC proceeding -- certainly
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| * not any affiant for Applicant or Staff or FEMA). Such motions could be filed at any time, diverttng the already-scarce resources of intervenors to dealing w.i th what uould be either frivolous or false statements.
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| ~ > ct,t-yi) ~\AS The proposed change to 2.754(c) limits only intervenors. Staff or Applicants can still say anything they want. But this prevents any better-equipped intervenor from helping out with the legal details that a less-well-equipeed intervenor. Within the Harris proceeding, the Joint Intervenors got shafted on an appeal which only I,~ p~ §.fl--
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| intervenor) had time to work on, and which was not signed by an attorney even though I had the consent of all the joint and emergency planning joint intervenors to take the appeal on. This is typical of the nit-picking which intervenors must face with the NRCT. But the proposal, for example, would foreclo~se anv interested State or municipali~,
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| apparently, from making findings, and would prevent any in tervennr from devoting its resources to carry forward an issue. Even NRC admits that intervenors may "have such broad generalized interests in NRC proceedings" that they do, in fact, have an interest in almost any
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| /?issue in the proceeding. The NRC therefore proposes to out off any abili cy
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| - to represent that interest through proposed findings/conclusions on any other pan:by's contention. allow In essence, this is like a court refusing to ruuruany amicus briefs without any consideration of the issue in which the briefs may atise, instead creating a rule that no one may help anyone else 0 This is just more assault on the ability of any -intervenor to get anything done with the NRC. No doubt NRG and industry hope that such Draconian rules will discourage anyone from even trying. On the contrary, I expect not only that you may be swted for violating intervenors' rights if you adopt such rules, but that intervenors will be foreed for self-defense to find ways of making headway even against such onerous and undemocra~ic rules. By seeking to deny intervenors the ability to raise contentions, to discover information (particularly from the Staff or outside agencies like FEMA), to cross-ex.a.mine, and be free of harassment by untimely sumra3..ry disposition (a place NRC now allows violation of its own rules and board orders to sa~ction harassment), and to file findings, and putting the most rigorous legal filing requirements on appeals (obviously another way for NRC to make it hard on the intervenor with minor amounts of money. Counsel at even $50 an hour--cheap these days --
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| would cost in the thousands for even one appeal), NRG is violatigg section 189(a) of the Atomic Energy Act, American procedures, and common sense.
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| Cormnissioner Asselstine has made other proposals which are evidently intended to provide for full~ public participation.
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| These are inadequate, but more in the right direction than NRC' 1 s proposed rules, which are without merit, and thoro.ligly, 100%, wrong.
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| Item 8--Local Public Document Rooms. It's nice to have them in the definitions, Commissioner, but they also need enough funding for the librarians to become ~amiliar enough with them to assist the public, and at minimum keep119 with the volume of information coming in and get the information being used refiled properly. EEven with the responsive efforts of the LPDR Braneh and the Washington PDR, , I had tremendous difficulty in the Har~is proceeding getting hold of documents through the local public document room. Things were missing, misfiled, misplaced, or hadn't arrived yet.
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| - I suggest that the section 2.714 be amended to require service on aily petitioner for intervention of a complete FSAR or PS~R, Envi~onmental R~port, and Safety Evaluation Report. Further, the Applicants or Staff should be required to make a showing, jus*t as Intervenors are now required to show for late-filing contentions, for any amendment to any suhh document,
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| * including all reasons why the information in the amendment could not possibly have been filed earlier. Applicants and S.a:tiitaff, as wmll as intervenors, should be held responsible for knowing all publicly (or, to them, privately or secretly) available information,and a list of all secret or proprietary information should be available in each LPDR and in the PDR.
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| Item 9- applicatj?onfiling -- see last paragraph above. Also:
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| Publishing notice of receipt of an application is a good idea. ~Public notice in newspapers (and by radio or TV since many people now do not receive any newspapers) should be required within 100 miles of the site proposed. Such notice should be in plain English: "'We want to Build a Nuclear.t\1'-(Power Plant, Waste Storage, Waste Dump, Food Irradiation~+/-x Facto~) as the headline, giving the locatHion, a map, and an explanation of how interested people, organizations, corporations, government bodies, etc. can apply to intervene. The Shearon Harris docketing notice (not a receipt notice) was hidden under a shoe ad, not at the legal notices section, of the largest newsapaper in eastern NC', the Raleigh NC News
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| * and Observer. It was in such thick legalese that one would have to read 5o to 100 words to get to the point that it was a notice about a nuclear plant licensing.
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| Setting up an LPDR when the av~lication is received is a good idea.
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| However, it wouldn't work for standardized designs, though it would if applied to site banking. Most folks today don't think there ever will be more nuclear plants, so standard design hearings far away from them may not even be noticed.
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| It is certainly desirable that an a-pplication be complete ~fore it is received, much less docketed, but I doubt the nuclear industry will ever be able to do that, or want to do it (and be bound by "its filing) in practice.
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| Item 10-Notice, Section 2.104. There doesn't seem to be much reason for exl'epting site review, since changing that matter will pro~ably take as much effort as publiching notice for site review would anyway. Notice of hearing should defNinitely explain that intervention must be filed within 30 days nor forever hold your peace"' and give information on what is requirec to do it, again in plafun English.
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| Item 11 N t:lce of Proposed action -- I can I t figure this one. No comment
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| ~ because I don't understand why it would
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| ;;- m needed.
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| -ll-Intervention, item 15. The idea of separating the requirements for intervenor status from the requirements for contentions is a good one. But intervenors who do not file contentions but have an interest should be allowed to participate as interested States and municipalities can now.
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| Even with the present requirements for contentions (which are only va.JllgBgue, as opposed to the pernicious ones the Commission proposed),
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| however, only 90 days isn't really enough time to file contentions.
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| Requiring the 5-factors showing for more time is not helpful since the other parties and sound record portions would be speculative, good cause is not defined, etc.
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| The statement that an intervenor can file an nunspported list of specific contentionsn 51 FR 24370, is not so. Contentions now have to have basis. The Harris board forbade, eventually, a statement of basis being laid out as part of the contention. However, in other proceedings contentions with explicit basis statements ("The FSAR fails to consider adequately the potential for acc<<idents involving.... BASIS: Such accidents can occur as stated in Nuclear Safety:13: pp ") have been allowed .lnJ: 11 1;:1 jn 10Jt;;;1,;,.,oo~ Contentions do have tonave
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| * scientific,tl, logical, or legal underpinning right now.
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| Commissioner Asselstine believes that efficient adjudication is not the primary ~oal of a hearing on a construction permit or operating license (51 FR 243i70). There is no requirementx for efficient adjudi-cation (whatever that two-word phrase means) in the Atomic Energy Act, while there is for a hearing and for protection of the public health and safety, so he's right as far as he goes.
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| But then he tosses out these goals by limiting to 90 days the time to put together contentions that are more complex than the contentions now required (but which do not really improve things because of his evident misunderstanding of contentions now, see para.graph 3 above, this page). There just isn't enough time to (1) digest the huge fili,:tgs for a nuclear plant (2) try to identi&! key issues that are eitherITmportant or possible to raise (many of thg,'1important issues are xexcluded by NRC's rules and practice) and(3) formulate them in legalese that meets the requirements of either present contentions or the Commission's proposals or Commissioner Asselstine's proposals if they differ. About the best you can do in th.at much time, even with an adequate LPDR with all the inf'ormation available, is write contentions a.s fast as you can think of them and try to arrange to get them duplicated and filed on time.
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| To understand the difficulty of figuring out what's important, try to state ~e ten, or twenty, or fifty most likely causes and sequences of the next serious nuclear accident in America. Then see which are unresolved or generic safety issues and try to link them to one particular plant's FSAR. Try, without blueprints, to analyxze electrical systems for flawsa Try to figure out what the NRC means by 1tbasisn and by '~specificity". See if' you can formulate an issue in a nspecific 11 way without trivializingx it. See if the Licensing Board will let you include related matters (often, they won't.) You can't get discovery until you have contentions. That should be changed. But you see the sorts of problems any intervenor would face, and the magnitude of resources needed to resolve them could be well shown by the fact that NRC itselfj with a budget in excess of lj/3 billion dollars a year and numerous staff, probably could not answer all these questions about any specific nuclear plant in the country, even ones that are already built and operating, much less from the data available aRt construction permit or operating license stage.
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| So one change that should be m1de would allow parties admitted under item 8 to have discovery before formulating consatentions.
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| That should require about 6-9 months. Then 90 to 120 days after the
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| conclusion of discovery, the contentions would be due. Of course, the intervenor would then have ha.d a.boLJt a. year to collect ria.tq* and formulate contentions. Odds a.re this would result in much better contentions, although intervenors should be w~rned not to trust the NRC staff, and need full discovery of the staff as well as the applicants during the t:tme for discovery pre-contentions.
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| The idea that contentions can be formulated without discoven information is like requiring a defendant in a criminal trial to prepare a defense without discovery of the prosecution and without process for getting evidence, except that most crimlnal indictments do not run thousands of paggs like most so-called safety analysis reports do.
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| Intervenor Jesse Riley well said that the reports get thicker wh'ile the amount of useful information is greatly reduced (e.g. since the late 1960s)
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| As to the late-filed contention requirements and institutional un-availability of documents, I've ha.d lots of experience with that. The real problem is the one-sided nature of NRG' proceedings, where intervenors have to lay everything out at the outset, Applicants can change things any time they want to, and the NRC Staff just supports the Applicants, almost always. (E.g. in Shearon Harris, the Staff technical people evident~
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| ly wanted to support a contention on the control room design/review. But the higher ups vetoed that and the Staff did ro thing, letting the contention
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| * be dismissed in large part; later staff review found most of the allegations of the dismissed contentions were valid-- but then what can the intervenor do. There are no proceedings within NRC for dealing with Staff actions of this ty~e that I am aware of.)
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| I think tb&t when a new document becoroos available,intervenors should have 60 days, ~luaive of hearing time and of three days at each due date for other filings, e.g. proposed findings, resnonse to discovery, etc.,
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| for filing contentions, provided the document becomes available after 30 to60 ~ days after the pre-contention discovery pBriod I describe above, is closed. Documents becoming available before that time, and any documents over 100 pages long or containing substantial highly technical information, should allow 120 days, extended for good cause shown. The requirements for contentions should be the same that apnly to "timely-filed" contentions now. There shouldn't be any requirements of late filing for documents that are institutionally unavailable. Late-filed contentions would be those based on information that becaroo available
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| * outside the NRC or related (e.g. FEMA, EPA) government agencies, and should at roost have to meet the present .5-factor lateness test. C'ontentions based on instutionally unavailable documents would not be considered late, since the lateness is duex to the unavailability, not the intervenor.
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| In Shearon Harris, information on the eroorgency plan exercise was withheld for months by FJ3NA and the State of NC, and thus delayed filing of contentions on the exercise. In cases like this, too the cont*entions should not be considered late andiilould meet only the present contention
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| ( ntimely filed") requirements. To rule otherwise encourages the agencies
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| -----:> to withhold information. Indeed, all of the proposals above on late filing make it in the interest of agencies to promptly issue reports, documents and i~ormation so that litigation, if any, can be completed faster.
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| I'm tempted to comment or speculate a bit on "efficient adjudicationn.
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| Efficiency to the NRC majority and nuclear industry seems to mean, l0t's get .it over with as fast as possible and cover as few issues as possible.
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| If your goal were to rubber-stamp licenses on nuclear plants, without regard to the public interest or th.e rights of the public under the Constitution and the Atomic Energy Act and other laws, that would seem "efficient1t. However, the purpose 'lmoacts the effici encv. Not all efficiency is good, particu~arly efficiency to evil ends: or unwise ones.
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| It would be hard to imagine a more un'efise end than to put many lives and many billions of dollars at risk with unsafe nuclear plants~
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| This is the end that the Commission majority's proposals can achieve.
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| However, it is inefficient to make mistakes. "If you can't find time to do it right the first time, when are you going to find time to do it over" and correct it, is still wisdom. This is true of money, safety and time. How do you insure things get done right the first time? One of the best ways is to be sure than anything could be targeted for very close scrutinya It is this added scrutiny that intervention achieves, through stimulating the Staff to be more careful (no bueeaucracy wants to be blamed for a failure they were warned about in advance -- look at NASA and the space shuttle Challenger, destroyed by a seal failure NASA awas repeatedly warned about), through focusing public attention (that's where we get virtually all the whistleblowers who contacted the Harris intervenors), and through the direct efforts of the intervenors. Admittedly, the nuclear industry seems to have the watchwords 11 don 1 t get caughttt and 11 don 1 t take the blame", but I can still find no better way to insure safety than to make sure that anything can
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| * be carefully scrutinized. Limitations on intervention and contentions remove more and more of the nuclear industry from scrutiny (e.g. INPO reports on equipment failures, INPO training, generic safety issues not to be litigated, information suppressed by the Staff, exempt5.ons from NRC rules or regulations or requirements, etc etc., not least the Commission's p~istent decisions against intervenors and their rights).
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| That, in the long run, is not afficient.
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| = Efficiency in this sense consists of increasing the likelihood of catching and correcting e:flrors. With the nuclear industry so dedicated to short-sighted "self-defense", i.e. ostracizing or denying jobs, or even threatening, beating up, or killing people who raise problems outside tne "nuclear family"*, the public is ever roore vitally needed to help perform this role. Because of internal pressure, even the most dedicated and best NRC staff members can't get the job done. The fellow who warned about the possibility of Three Mile Island resigned. Those who news-managed the disaster got rewards. The NRC's mindset hs been identified as one of its biggest problemso Again, the only cure I see for this
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| * is to allow those who are outside the industry's sphere of influence to be able to participate. Intervention is the imperfect way to try to do that at the specific plant level, just like voting is the irrrperfect way we have to influence national poller (as Churchill said, the other systems besides democracy are so much worse)o In practice, powerful factors, especially lack of money and human resources, impede intervenors. We have xto finance our own living expenses and still find time to deal with the NRC and well-staffed (to say the least) applicants. Ineeed, concerning interrogatories to the Staff, they explicitly threatened us with na thousand interrogatories". If they were imnn1me from having to respond, they could abuse intervenors to no end.
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| You might ask why any of us do intervening, then. First, intervenors think that what they're doing is important enough to spend, often, thousands of hours of uncompensated or poorly-compensated time on. Second, any chance is better than none. So we intervenors are in one way like the nuclear industry: we both go against long odds to try to succeed. The industry must overcome Murphy's Law and its own failings. Intervenors have to deal with the much larger resources of applicants and the no-real-chance NRG system, wh:tch changes the rules (e.g. on need for power and financial qualifications, etc) whenever it seems likely an intervenor might win.
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| I don't suggest that there's great merit in intervening for the intervenors.
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| m<<ru[ almost anyone could find better ways to waste time and effort.
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| .. -ll~-
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| I But even the smallest corrective action could end up saving very large amounts of money, and lives (~erhaps few, as the claims that a nuclear plant rs operation will "'onlytt cause one or three additional deaths)
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| (perhaps mare. Harold Den~ln said the worst accident at Shearon Harris could be like Chernobyl. July 2, 1986, Raleigh NC. I think it could be even worse. And NRC is great at ignoring truly long term effects.)
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| To get back to the proposals, number 16 is not much good and the special prehearj.pg conference rule should be brought into accord with what I s ~gested above, and occur about a year after intervention is decided.
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| Item 17, the prehearing conference, incorporates a good standard for summary disposition, which should replace the one of 2.749. It would be appropriate to restore to Boards, by rule, the ability to pursue such "inquiry in depth"'~ sponte.
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| I think Commissioner Asselstine is trying to give all parties (industry, the public, the staff) something here, and he also seems to be trying to stay within the law, at least the law as he sees it.
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| Given the tendency for regulatory capture of agencies by the industries they 11 regula te", -these are noble achievements. But they will be un-availing as long as the public is excluded from influence on the NRC and the nuclear industry.
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| Let me return briefly to 2.720 in the 6ornmission 1 s proposals:
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| It is ridiculously unfair to let the Staff do discovery of other parties (I've never seen them ask an Applicant much formally, so they target the tntervenors) and not let the other parties have discovery of the staff. As noted above, in the Harris proceeding the NRC Staff, off the record, threatened the intervenors with
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| *ta thousand interrogatories". Since they participate in many cases (all of them) the Staff could put together either complete information or incomplete disiniformation with impunity if no discovery could be had of them. Exclusion of questions about m.y the staff did something or didn't do it invites abuseso The true answer could be anythig from "we don't know'~ to "we were pressured" to nwe were bribed'' and t here would be no way to require an answer. Shielded from inquiry, the Staff could bombard intervenors with harassing questions to no endo They did well enough in dodging questions under the existing rules. There should be no limitations on discovery of the staff.
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| The Commission's proposals unconstitutionally deny intervenors due process (or even any process) of law. They violate the Atomic Energy Act's hearing requirement language and the intent of Congress. They violate NEPA 1 s requirements for full consideration of all the environmental impacts of a decision to license the plants, waste dumps, etc.
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| Finally, the Commission's declaration that these amendments are catgeorically excluded from environmental impact statements, assessment, etc is a good example of why humans may become an endangered species. Thesex proposed rules could have catastrophic environmental impact since they effectively would prevent the public from having a voice in nuclear siting and licensing decisj_ons. Yet, because of a detail of law, the Com.mission can claim there is no need to eonsider the environroontal impact that will result from changing its rules to weaken the public's rights.
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| The New York Times recently reported the statement that the Soviet Un-f_on 1 s nuclear difficulties s-temmed from puttJ_ng production and money ahead of safety. The NRC in its rules proposes to Sovietize the US nuclear bureacB~racy and hasten the American Chernobyl. Oh well, I hear two men who raised safetty and quality concerns about Chernobvl -f!ot sent to Siberia before the ace 1 den
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| * Ma:vbe I 1 11 be so luckv hAT'A- "'* /_~_,,, 'r"'i_,/';;j'~_
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| DOC.K[I E.l '
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| U. NHC "86 SEP -3 P2 :04 OFF ICE Or Stl,,.t lARY DOCK ET ING & SERVICf.
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| BRANCH
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| .Mothers for Peace August 29 l 9B6
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| * Secretary of the Commission U.S. Nuclear Regulatory Commission Washin gton, D.C. 20555 Attn: Docketina and Service Branch The San Luis Obispo Mothers for Peace wish to make the followina comments on the series of proposed rule changes that would affect NRC public hearin os.
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| The primary effect of -the proposed new re9ulations, taken tooether, is to seriously reduce the role that the public is allowed to play in the licensing proceedings for a nuclear faci-lity, and to make what role is left exceedinaly difficult to pursue. These proposals follow a pattern that began about 5 years aao, a pattern of streamlining licensin~, no matter what the cost.
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| These would not only streamline NRC hearin0s, they would leaye i:them little more
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| * than a meaningless ritual .
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| A.s thin 0s s t and now , a public intervenor enters an NRC proceedi.nq with multiple handicaps, pitted aaainst a utility that freely spends the oublic 1 s *money t o advance *i ts . case, and the publicly funded NRC staff which also serves as an adversary to the intervenor, rather than the impartial resource that we believe it was intended to be. Current rules aovernina contentions and hearinn orocedure all serve . to hamoer the intervenor . The proposed new re0ulatfons ao so* much farther in that direction that we think it would be hypocri tical to maintain that the ~e i s ~ meaninnful role to be played by the public i.n NRC hearinos .
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| The NRC has 1ona treated the pu6 l i c as the enemy, with noa 1s dHferent from its own, an attitude we have seen amply demonstrated during 13 years as an intervenor orqanization. The Commission has moved to close many of its own meetinns to the public, makinq public policy behind closed doors . Now the NRC ' s publi'c hearinns are about to become a good deal less public . If enacted , the new rules would so constrict the public's role in hearin 9-s that it would eliminate all but the most persistent from even tryinCJ to participate .
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| SEP 4 Acknowfedfed by card. ,.,....:;;;;;:;:;;;;;~~'f
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| &1, .RIJmitil 1l!OO!'ATORY COMMISSION D0a<ETING & SERVICE SECTION OfFICE Of THE SECRET ARY OF THE COMMl!:SION Document Sta' isl ics POftni k D Copies ,.
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| te z/_~/Ifb_ /
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| Ad.J ' ' .. ~
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| Speci ...
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| As intervenors, we could spend much time and effort trying to raise the funds needed to participate in NRC hearings, then spend weeks or months working on our case, in order to see that NRC and utility claims are not simply accepted without close scrutiny, only to find that all the effort was a waste because:
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| : l. We're put in the impossible position of having to prove our case before a contention is even accepted; and/or
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| : 2. We cannot get access to important information because NRC staff is 11 protected from many discovery requests; and/or 11
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| : 3. We're not allowed even to question NRC or utility witnesses because we couldn't prepare and submit ahead of time a detailed description of our proposed questions, their objective, and even "postulated answers" for each and every witness, robbing us of one of the fundamental rights of a party in a court of law; and/or
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| : 4. If any contentions survive the revised standards for acceptance, they might be dismissed at anytime, even just before a hearing, after weeks or months of preparation . .
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| These proposals seem to come from an NRC that is increasingly fearful of public participation in its proceedings. Public intervenors have contributed to the safety of many of America's nuclear plants, and therefore to the survival of the nuclear power industry. These regulations would move the NRC staff even further into the role of adversary to any member of the public who dared question any aspect of the licensing (or license amendments) of a nuclear plant.
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| This can only further damage any effort to get all of the information possible on a particular issue out into the open so that it can be fully examined in a non-hostile atmosphere. We have found NRC staff generally very hostile and defensive and these rules would provide them the tools to be even more so, all to the detriment of both the public and plant safety.
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| Nancy Culver for San Luis Obispo Mothers for Peace
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| Secretary of the Commission DOCKETED USNRC U. S . Nuclear Regulatory Commission Washington DC 20555
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| *86 SEP -3 A9 :03 Att'n: Docketing and Service Branch OFFI C!: Of Si.:CF1t*. 1..\hY To Whom it may Concern: DOCKETING & SER VI C[
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| BR ANr.1-l It has come to my attention that your Commission is considering the institution of f~ve new rules of procedure which would further limit public participation in the licensing process of nuclear power plants intending to commence operations.
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| I have studied what is reported to me of these rules, and if the information about them is accurate as described in the newspaper article ,v-hose photocopy I enclose and make part of this letter, then hereby formally I register protest over these changes. They represent nothing less than an impermissible, prejudicial abridgement of public right of unrestricted access to, comment upon and influence in such proceedings, whose outcome and aftereffect are the public concern and the public burden to bear.
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| It i s enough that we have had to endure the historic tort in the public right to due process of advice and consent, represent.e d by the. very construction of' this Seabrook Station now in question, both without our consent and against our will, about which licensing procedures are to be held. Now it seems youn Commission would exhibit the temerity to attempt to strip us of our right as the public, and your employers, to bypass our judgement altogether upon whether we consider this plant safe enough to tolerate in our presence, economical enough for us to afford, and consonant with our interests in the planning of our future energy requirements , all three of which considerations we feel ourselves better equipped to judge than yourselves.
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| I have already written to my Representative in the Congress, Robert C. Smith, in whose District Seabrook Station lies, reporting and describing these changes, and instructing him to direct you to desist from any such ruling, amounting to a violation of public right of access to and voice in any such discussions 0£ public matters. I have called for his inquiry into how and by whom this shameful nonsense began .
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| We already know out here that the NRC are the express underlings of the nucle a r industry. For example, Commissioner James K. Asselstine is reported in one newspaper to have said, "I believe that in some cases, the NRC has acted more as the protector of the nuclear industry than the protector of the public:!' .
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| {Documentation sent at your request) . Not one step of progress made by this industry since 1942 has been possible wi thout assistance of this government, and never once a ter due solicitation of public advice and consent. It has its roots in government mandate, takes its nourishment from acts of a Congness unsubmissive to the intenests, we elect it to represent, and would achieve its full flower in a nation cleared of public power to regulate or stop it . We face therefore a limitless threat to our surviva l from an industry now and £orever incapable of proving to us that its fuel and the methods of handling and disposing of it can be made safe enough to be acce ptable in our midst, on our planet and in the presence of the) genetic codes ,v-e intend to pass along intact to our descendants. SEP 4 '986
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| &I>~':::~~~ UClrlA.TORY COMMISSIOff
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| ** ., & VICE SECT ION l'.i)ff-lCE Of 'THE SfCRET ARY 0F THI: CpMMISSION
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| °:"""f/i/t/
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| ,-f
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| Your Commission is charged with the responsibility which we the public hav~
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| given you, and at handsome pay, and to carry out the directives we require t.o protect us from danger. Hard experience has taught us that the nuclear industry represents, our gneatest threat of danger today. We are watchin~ therefore every step you take to do this . When we suspect that you are failing, then we must step in on our own accounts;. Therefore in the matter at hand, any attempt_ y,ouv Commission may make to limit our access to, or our contribution in these coming licensing hearings will be construed by us as malfeasance, and will become subject to full weight of legal proceedings.
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| I shall attend these hearings. There, I shall demand entnance and the night to be seated, where I shall listen to all that is said. I shall be subject to no effort toward my removal, since your Commission will see to it that I shall have full right to enter.
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| If I decide that I have something to say on the subject then, according to the rules of procedure in which I shall have full right to do it, I shall do so
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| * I am charging you with the defense of my right to be there and to speak.
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| We have indulged these machinations of a prefer:ued industry with the collusion of the government for long enough. That PSNH now faces bankruptcy they are crying like babies for the consequences of their massive misjudgements about nuclear generation in past planning, and they will go to any lengths to extricate themselves from downfall, including rule changes in licensing procedures, EMZ-radius reductions, rate-hike plans and all the other squalid measures they would have the government countenance. The costs they bemoan represent the hard-won safety features at Seabrook Station to make it even as safe as it is,, though it remains still unacceptably risky to license.
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| Acceptance of these five rule changes will commence our steps to disqualifw your Commission from validity as a servant of the public safety. I am
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| * 'ohn E.
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| ox 666 Rollinsford NH 03869 30 August 1986 Encl: 3
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| p,~ ' ' AT~K (lt:> t - l ~ ~ f<S\Alvr vt~l
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| \u~u st 26, 1986 eux ~2- -H~ 0?~2-N RC 'A TEMPTS.,. TO.- ~-LIMIT }:~i -
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| in the PUBLIC'S ROLE IN .<*-~-, * -_. ~---~_;,~
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| LICENSING HEARINGS s a chef by Steve Haberman KENSINGTON-Overthe the nuclear power plant licensing process.
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| the Commission decided, First, are tossing around the idea of decreasing the Emergency Planning past several weeks the in the case of the Zone, essentially the
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| ~rstands media has carried stories of the various rule changes enacted or being Shoreham Plant on Long Island, that it would not require state or local evacuation zone around a nuclear plant, from the current 10 miles to 2 miles, considered by the Nuclear a ppr ova I . of off* site_ most probably in response
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| ;eafood.'' Regulatory Commission which would effectively neaote public input into evacuation plans as a criteria for plant licensing.
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| *Now the Commi~sjoners
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| * to Massachusetts Gov-ernor Dukakis' decision to
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| * withold off-site evacu-
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| '1a,zazine PM Revit>W I 986 )
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| U I dJ ation plans for *t hat state.
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| J { T *
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| * h. In / lost week, Herb Moyer, a
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| ~..\ ~ er_~eCt - 0. ~C .. _., . ___c*_ :/: ~~::!~". \heo fle!;:: e ~f
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| *1
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| * Tow~s, a coalition of New J
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| f) Su,per Summer Tanning -.) . Hampshire and Massa-
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| {), . FABULOUS SAL£! .ll** ** ,chusetts. towns and organizations
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| * concerned fl il with the . safety issues
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| ,, *1 i) . . tw:t.i;E,* Ii . j) raised by
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| * the Seabrook plant, that the NRC is derstands J 4)
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| * J
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| ~ f). new . rules which would
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| . conside!ing instituting five J ~- J further limit _public
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| :d steaks, f) i) ~
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| . f)
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| ~:* i) . p a rt i c i p a t i o n i n t h e licensing p_rocess . ; ..
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| J D,~ -.. J . .-:c
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| * l:he_ f_irst _rule change
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| .shes and f)
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| J
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| . (rt')\
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| . * .'/,
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| f)' involv~s th~ filing _of
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| . J
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| * _c ontentions, issues which f) -,, ' f) an intervenor in the
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| . als .. J
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| -*>*.,'-*,.Ji.. J licensing process would f)
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| J i)f) .. like t~e licensing board to.
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| ~ule on. Currently an intervenor need only f) l.***-i~!!lll'!-!I!!!!~~~~~~~~~~*) '.
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| * provide a es* no \- t'v.,. list of the issues
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| *- 1 J * * . he or .s he wished to have
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| .) 4) ,~ d e c i d e d d u rin g t h e i~ -'-* iL ~-~~ri~c~* =-~-n-~~::~~ :~:*
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| dicoted that a problem problem in New Hamp- special perm1ss1on from hearing took place.
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| ,ists in the* statewide shire and to develop the the hearing judge in The fifth proposed rule From llection of information strategies necessary to order to cross-examine forbids intervenors with ncerning the dropout reduce the problem . witnesses. The request on interest in another The go~
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| oblem. This was also would hove to include a por:ty's contention from stand arc ident in d iscussions with description of the issues filing appeals of bringing for the ficiols at Winnocunnet From Paee 2 that would be the basis for forth Conclusions of Low in general
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| ~h School in Hampton. the cross-examination, the the case of contentions some sit
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| :hard Walsh of the is a party to any licensing objectives to be achieved, which they themselves adequot, Jidonce Deportment hearing and con be the line of questions that hod not filed. Under this demonstr dicoted that "we forced to justify it's would be used, together proposed rule, the insure the ven't really done a conclusions and explain with the witnesses Seacoast Anti-Pollution the pub dy (of the dropout why, for example, it relied "postouloted answers." League, for example, i-adiolog
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| )blem) in 10 years."
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| * on one NRC study and not The fourth proposed rule would be prevented from greater ti e lost study done in the another in making it's involves Motions for contributing pertinent level as d-1970's _indicated, findings. . Under the Summary Disposition information to a licensing radiologic
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| :ording to Walsh, a proposed rule . the NRC (motions foi- dismissal of board which pertained to at Sea bro 3/o dropout rote at that staff_ would hove to be, contentions). *
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| * Currently *a contention filed by third assL ool. Walsh stated his essentially, token at it's . the presiding officer at another intervenor. "Reosonol nion that with the word since intervenors the licensing hearing sets The Nuclear Information protection vent of Special could only obtain the schedule as to when and Resource Service in standard Jcotion, Vocational source information used Motions for "Summary Washington, D.C., views defined o n and the by the staff. This would Disposition will be the proposed new rules
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| * been pro,
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| ~* School, the force intervenors to spend accepted. The officer as, "on attack on the role Town of R) pout problem is not as extra time and effort in may bar motions at of intervenors in license indicates t ere here as in other locating NRC documents certain times, for hearings." According to ts of the state, but that pertinent to their case but example, before the the Service, the new rules really didn't know for not used by the staff in hearings start.
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| * Under the . "accomplish this in three ~,
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| forming it's conclusions. proposed rule Motions for woys--by making it harder e most condemning Most intervenors ore Summary Disposition will to become a party to a HJ ement contained in operating .under a very be accepted anytime, licensing hearing, by INSURA report was found in
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| * tight budget and with a , removing from inter- imposing limitations .: :**_. INCO limited staff and this rule venors the protection from during the hearing itself; introduction section. It ~-*....7.2.5
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| :- -~.*J.*_o_
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| l
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| , "few strategies or . would place yet another horrossing motions on the and by allowing motions
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| ::itives seem to be in burden
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| * on them in port of the Applicant for dismissal of conten-* Han
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| *e for retain youth in preparing and litigqting which require
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| * substantial tions at any time." _ The Bob ols or get at the .
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| * their coses". -* :*.,.;. : ' diversion of resources
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| * Service* concluded .. that t erlying causes for The third rule change .. away from preparing for "The, ~RC appa;entl_y iping out." ,.- ~nvolves the use of cross- the hearings themselves. ~ feels that . the licensin.g - .
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| e- k Force 1s examination during Potentiolly,underthisne...; proces; wo~ld *be~~fit by J a statewide
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| =er nee to ** f.ocus 1tion on the dropout licensing hearings. The
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| * rule, all the intervenors' *.
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| proposed rule would contentions could be require
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| * parties to obtain dismissed even befo.re a PIPE PROFILES PATIO SHOPPE*
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| ~ P Y C 1i1pr.:, .-\LL\11\L.\1, Fl*BEKCL\SS \\ ICKEK the ~-lim .-i nation . of
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| .:.:;. _. --,
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| * To vaee 32 I S3liSOI
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| .o\lE
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| ~ & RcSL\ Fli R~ITURE * . , - *- Of ~LJF
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| ..; *.~~. END-0F-
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| --* ":* :*:-;'~SEASON ';:; ~ "'--
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| * STILL IN
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| ~ 1 /? C
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| , . That ' s a victim of the wipe-out of From Paee 18 Comments may be sent to domestic programs that were done Secretary of the Commis- -..- . . -* ..
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| p the military side, and we go on and intervenors ... " s io n , U . S . N u c Ie o r md we have nothing left to defend, . The Nuclear REgulatory Regulatory Commission, 10thing. I'm out to prot ect th e so ul - Commission is accepting Washington , D.C. 20555.,
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| public comment on these Attn : Docketing and proposed changes until Service Branch.
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| September 2, 1986.
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| FULL LIOUOR urant LICENSE b YEAROPEN ROUND The game of Mah Jong is believed to have been invented in China about 2500 years ago.
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| * michael &imuti OWNER 1 8 WOODKNOLL DR.
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| (' .,......,_, . ;;;-;:PR - @
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| MARVIN LEWIS ($1 I=£ A4~fos-)~
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| 7801 ROOSEVELT BLVD. # 62 PHILA., PA 19152
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| : 8-23-86. DOCKETED USNHC Secretary of the Commission U* S* N* R* C* 0 86 SEP -3 P3 :02 Llashington, D.C. 20555
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| ==Dear Mr. Secretary; OFF ICE OF St.Ci-<lit,==
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| k't OOCKETING & SU~ ' !Cf.
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| Pleass accept the following letter as my comments on Par f R1 NCH CFR (July 3,1986.) The Notice referred to a reform in the Licensing process.
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| Llell, the proposed rule sure does reform the licensing process to the point where any effective intervention is totally and unfairly eliminated.
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| Let's loo k at what th e licensi ng process presently a ll ow~
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| the intervenor .
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| * 1. The intervenor is not allowed upon the site.
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| she cannot build their case from actual inspection of the actual physical inspection of the site , but must build their entire case upon paperwork provided grudgingly by the licensee or staff at some remote location. Often this remote location is hundreds or thousands of miles He or away. Examples: problems with the SDV at Limerick involved meeetings with the subcontractor in California. California is thousands of miles away from the Pennsylvania site of the Limerick reactor. TMI meetings were often in the Llashington, D.C., area. Llashington , D.C. , is over a hundred miles away from the TMI area in Pennsylvania.
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| The intervenor must build their case with an excruciatingly limited access to needed data. Often the very staff further limits the access by not providing anything in a timely manner.
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| : 2. The intervenor is limited access to individuals directly
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| * involved in the construction and operation. Intimidation of individuals has been documented on 60 Minutes, 20/20 and in NRC hearings. Individuals have actually explained to me how the NRC staffers at Region 1 intimidated them and told them that they would not have any leg to stand upon. Sweetheart contracts between union and management at TMI bring a clear message to workers to keep their mouths shut. The Polar Crane issue at TMI and the subsequent transfer of two high level engineers also provided a clear message to keep your mour shut.
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| In all of this , NRC has supported the licenseeat the
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| . cost of nuclear safety to the public.
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| : 3. Now that the NRC has eliminated the intervenors abilities to ferret out any evidence himself, the NRC now proposes to eliminate the intervenors right to ferret out any information thru the legal process of intervention.
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| (Continued.)
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| .
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| * I
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| ')
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| 191 MJaw REGULATORY COMMISSION DOCKETING & SERVICE SECTION OFFICE OF THE SECRETARY OF THE COMM1"£10N
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| * I 0 Adel' I Copl Re- red* ccd _ _=i_
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| Oi ,,butien
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| MARVIN LEWIS 7801 ROOSEVELT BLVD, #62 PHILA., PA 19152 Discovery is a means whereby an intervenor is a Uowed to ask the licensee questions to elicit information that might help the intervenor. Presently the NRC staff can be a subject for discovery. The new rules will limit discovery against the staff. Here is an example of what has happened in the past.
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| At TMI#2, the staff allowed that the PDRV did not have to~ safety grade. The PORV leaked. The leaking PDRV was a major precursor to the 1979 TMI#2 accident. ~ithout discovery against the staff , dangerous conditions such as major precursors to meltdowns which are regularly allowed in to the design and construction with the staff's f ull knowledge and approval would remain hidden. Hiding such pertinent safety infractions increases the danger to the public. Often , discovery against the staff is the only means to ferret out this sort of information as the staff is the only repository wherein the decisions were made.
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| the new rules would allow no questions from the intervenor except first submitted to the Board for approval and then no followup thru immediate cross examination.
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| Since cross examination would be delayed and limited, the licensee would have ample oppurtunity to foul the nest and provide smokescreens to hide behind and defenses to coefuse the issue. Adequate cross e x amination under the new rules would be virtually eliminated.
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| Right now the inter '{h or process is stacked so badly against any effective intervention, the chance of an intervenor proving his case, no matter how strong, is a joke. The new rules provide that the whole process is a farce.
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| Perhaps at this juncture in time , the new rules are presenting a reality: that democracy is finally dead in o u r great r epublic. Sic transia omnia.
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| I wish that I could say that this was respectfully submitted, Marvin I. Lewis
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| * 524 1574
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| 7801 ROOSEVELT BLVD, # 62
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| ,: PHILA., PA 19152
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| :8-23-86.
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| Secretary of the Commission U
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| * S
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| * N* R
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| * C
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| * Washington, D.C. 20555 De a r Mr
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| * S e c re t a r y';
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| Please accept the following letter :,as my comments on Part 2 CFR (July 3,1986.) The Notice referred to a reform in the Licensing process.
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| Well, the proposed rule sure does reform the licensing process to the point where any effective intervention is totally and unfairly eliminated.
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| Let's look at what the licensing process presently allows the intervenor.
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| : 1. The intervenor is not allowed upon the site. He or she cannot build their case from actual inspection of the actual physical inspection of the site , but must build their entire case upon paperwork provided grudgingly by the licensee or staff at some remote location. Often this remote location is hundreds or thousands of miles away. Examples: problems ~ith the SDV at Limerick involved meeetings with the subcontractor in California. California is thousands of miles away from the Pennsylvania site of the Limerick reactor. TM! meetings were often in the Washington, D.C., area. Washington , D.C. , is over a hundred miles away from the TM! area in Pennsylvania.
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| The intervenor must build their case with an excruciatingly limited access to needed data. Often the very staff further limits the access by not providing anything in a timely manner.
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| : 2. The interve~or is limited access to individuals directly involved in the construction and operation. Intimidation of individuals has been documented on 60 Minutes, 20/20 and in NRC hearings. Individuals have actually explained to me how the NRC staffers at Regiqn 1 intimidated them and told them that they would not have any leg to stand upon. Sweetheart contracts between union and management at TM! bring a clear message to workers to keep their mouths shut. The Polar Crane issue at TM! and the subsequent transfer of two high level engineers also provided a clear message to keep your mour sh~t.
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| In all of this , NRC has supported th~ licenseeat the
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| . cost of nuclear safety to the public.
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| : 3. Now that the NRC has eliminated the intervenors abilities to ferret out any evidence himself, the NRC now proposes to eliminate the intervenors right to ferret out any information thru the legal process of intervention *
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| . (Continued.)
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| ill.CMl IMPIIPR* * * .
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| SAPL ee!PMA BUL&
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| (~/ F.
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| Seacoast Anti-Pollution L~~g~e 5 Market St., Portsmoutflfs~~. 03801 (603) 431-5089 "86 SEP -3 P2 :38 OFFI CE OF E, 1.;R t. lAR Y DOCKETING & SE. \IIC f. August 29, 19 86 BR ANCH Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attn: Docketing and Service Branch RE: Request for Public Comment on Regulatory Proposals Concerning
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| * Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process at 51 F e d , ~ 24365
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| ==Dear Mr. Secretary:==
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| The Seacoast Anti-Pollution League herein comments on the proposals put forward for public comment in regard to the hearing process for domestic licensing proceedings, At this point due to time constraints, SAPL will confine its commentary to those proposals put forward by the Regulatory Reform Task Force (RRTF) and may submit comment on Commissioner Asselstine's proposals at a later date.
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| SAPL is most chagrined that the Commission is still seeking to couch the RRTF proposals, that are plainly intended to weaken the position of intervenors in licensing prodeedings, in euphemistic and positive terms. Now the Commission is talking about ways "to mprove" the licensing process, SAPL believes this is simply
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| * uplicitous and cynical on the Commission°s part since these proposals are expressly designed to make public participation in licensing proceedings far more difficult. It_ would be much more forthright of the Commission to simply come right out and admit so, The Commission has declined to look at the overall role of the NRC Staff as SAPL suggested in its comment on the proposals the Commission put forward for public comment on April 12, 19840 SAPL still finds it untoward and contrary to the public interest that the NRC Staff counsel are allowed to lighten the Applicants' burden of proof by shoring up Applicants' position on contested issues.
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| In addition to performing a review of the Staff's role, the RRTF could have looked at other regulations that could have been modified to better serve the public interest. An example that immediately comes to mind is the Commission's present requirement that late-filed contentions address the five-part test at 10 CFR
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| : 2. 714( a)( 1) even when those contentions are filed late due to the Founded 1969 Acknowledged by card . *,.'"'1;:;;;;;;;;;~~ i
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| CJ ...
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| llal!l1 RUo.&IIR UCUtATORY COMMISSIOff DOCJ<ETING & SERVICE SECTION OFFICE OF TH rr fT y OF T E OM I S.
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| Dncirn
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| institutional unavailability of documents or information which provide their factual basis. This is purely and plainly unfair and a waste of resources. The practice of causing intervenors to have to cross this raised threshold ought be eliminated.
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| But, again, it would probably be naive of SAPL to expect that the Commission would want to effect a change that would advance the cause of fairness to intervenors (i.e. the public). The proposals set forth in this instant rulemaking proposal certainly do not. Their impact is not even "neutral" as alleged in the Regulatory Flexibility Act Certification.
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| Admission of Contentions (10 CFR 2,714)
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| This proposal raises the threshold for admission of contentions to a very substantial degree. At present, intervenors must provide a reasonable factual basis for further inquiry and this, in SAPL's view, is sufficient to allow judgment as to whether a contention has merit or not. The new proposal would require intervenors to bring an essentially complete evidentiary case right at the time when contentions are due. Intervenors would not have adequate
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| * time to examine documents and secure expert assistance and would further not have benefit of discovery for developing their case.
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| This proposal could serve to discourage and defeat public inquiry into matters essential to public safety. The harm to the public done by defeating the examination of important issues far outweighs any harm that might accrue from spending time on so-called "frivolous" contentions.
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| SAPL has not sought to litigate frivolous contentions and does not imagine that other intervenors have either the resources or the time to Spend litigating frivolous contentions either. Where it has, in a few instances, become apparent that a contention lacked merit, SAPL has withdrawn that contention. SAPL has not copied contentions from proceedings involving other reactors and suspects that where other intervenors may have it was because similar sets of circumstances prevailed at both reactors. The current standard which requires that a reasonable factual basis be provided for
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| * contentions sufficiently guards against resources of parties being expended on "imaginary issues".
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| Limits on Discovery Against NRC Staff (10 CFR 2.720)
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| This proposal might well result in the improper shielding of the NRC Staff from its obligation to justify the position it takes in agency proceedings, even in view of the fact that the Staff 0 s position is often crucial to the outcome. The public interest clearly requires that the staff be held accountable for its positions.
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| SAPL believes that the present provisions of the rules provide more than ample protection for the Staff.
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| Cross-Examination (10 CFR 2.743)
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| SAPL holds that cross-examina tion i s a party's f *u ndamental due process right and that a party should be allowed to exercise its right without regard to whether or not the presiding officer is
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| hostile or not. The right of cross-examination can be especially important where broad issues of public health and safety are con-cerned. O'Donnell v. Shaffer, 491 F,2d 59,62 (D,C. Cir, 1974)
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| SAPL believes that the interest in reducing a cluttered trial record is far outweighed by the interest in assuring that a full look into matters significant to safety is carried forward, SAPL reiterates the comments made with regard to cross-examination plans in response to the April 12, 1984 request for public comment:
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| On the matter of cross-examination plans, SAPL would note that in the hands of a malevolent licensing board chairman such plans can be employed as a device for cutting off productive cross-examination, Furthermore, there is the need for flexibility in formulating questions to the witness that cross-examination plans would not allow. As an example, there are often instances where it can be of benefit in the search for truth to have the leeway to formulate questions based upon the cross-examination conducted by another party. As another example, there are instances wherein a witness makes amendments to prefiled testimony, and since written cross- examination plans must needs be based on prefiled testimony, the plans would restrict inquiry into the new areas. Therefore, written cross-examin-ation plans are unduly burdensome and can lead to unwise constrictions of the scope of inquiry. Additionally, they can contribute to difficulties related to matters of confidentiality, as has already been evidenced in the Seabrook proceeding. In short, SAPL feels such a requirement to be of detriment to the conduct of a fair hearing process.
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| SAPL would also add that intervenors do not have the resources not the time to conduct inapposite cross-examination.
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| Motions for Summary Disposition (10CFR 2.749)
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| This particular proposal sets up conditions where an inordinate number* of frivolous motions could result. If avoiding waste of the resources of the parties and avoiding frivolous pleadings were
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| * truly the intent of the Commission, it would not entertain this proposal, Nothing would shield intervenors, or Applicants for that matter, from a barrage of summary disposi tio_n motions prior to hearing . which could draw resources away from hearing preparationo Further, motions for summary dispositions could be filed prior to discovery, before a party would have the opportunity to gain the necessary information to controvert a summary disposition motiono This would not serve the public interest because, again, it might thwart inquiry into an .area of public safety significance.
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| Proposed Findings of Fact and Conclusions of Law (10 CFR 2,754) and Appeals to the Commission (10 CFR 2.762)
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| These proposals would interdict intervenors with a legitimate interest in the resolution of other parties' contentions from con-tributing to the record on those contentions, This would make it more difficult for intervenors to work together, share resources and divide tasks. It would likely result in the filing of more contentions because parties would know that they could not have any part, in the litigation of an issue, other than cross-examination,
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| if they did not raise the issue themselves . The merit of this proposal, which is that it would reduce the volume of filings, would be more than offset by its demerits. Those demerits are that the proposal would end up putting a greater burden on intervenors to file a contention on each and every i s sue in which they might have a n interest, resulting in more contentions, and would also likely have the net result that some areas significant to public safety , which de s erved scrutiny, would go unaddressed, The Commission is once again taking industry's position that the woes of the nuclear industry are due t o regulatory delay, This claim is unsubstantiated, These proposals effect a further encum-brance of intervenors who have di s proportionately small resources compared with the applicants to begin with. SAPL believes that the Commission's Regulatory Flexibility Act Certification is patently false as regards this rulemaking and its effects on the ''small entities" who will be impa c ted by its provisions should they be adopted *
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| * Respectfully submitted, Q.,v~
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| Jane Doughty Field Director
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| LAW OFFICES CONNER & WETTERHAHN, P.C. OOCKETEC 1747 PENNSYLVANIA AVENUE, N. W .
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| US NHC WASHINGTON, D. C. 20006 TROY B. CONNER , JR .
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| MARK J. WETTERHAHN ROBERT M . RADER 116 SEP -3 All :39 NILS N. NICHOLS BERNHARD O. BECHHOEFER OF COUNSEL September 2, 1986 OFFICE Of F:io2 e3:,:.._:1i ~ o DOC K£T1Nl.i &. s~r.r c~iAN£HrnEss: ATOMLAW Samuel J. Chilk Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Re: Proposed Changes in Rules of Practice for Hearings in Licensing Proceedings
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| ==Dear Mr. Chilk:==
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| On July 3, 1986, the Nuclear Regulatory Commission
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| ("Commission" or "NRC") proposed changes in its Rules of Practice regarding the hearing process and requested public comment.1/ The Commission also requested comments upon related -proposals developed by Commissioner Asselstine concerning intervention procedures. The following comments are offered by the firm of Conner & Wetterhahn, P.C. on beha l f o f itself, Public Service Electric & Gas Company, Niagara Mohawk Power Corporation, and Gulf States Utilities Company.
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| As an overall observation, we applaud the efforts of the Commission to revise its hearing procedures by eliminat-ing frivolous issue s . All too often, content ions which obviously lack merit, but meet liberal admissibility tests, have unnecessarily consumed valuable hearing and prehearing time. The implicit premise of the proposed changes is that the Commission recognizes that its pleading and hearing practices have been abused by intervenors who have been more interested in procuring delay, publicity and gamesmanship than establishing the existence of genuine health and safety or environmental issues.I/
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| l/ 51 Fed. Reg. 24365 (July 3, 1986).
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| II See, ~ , Cleveland Electric Illuminating Company (Perry Nuclear Power Plant , Units 1 and 2), LBP-8 4-28, 20 NRC 129, 130-31 (1984).
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| ,)' I . / if /. il )' i: l .. l : ./ i .h *, l : I /. / \) )
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| , ' i* , >:.:l
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| ! ' ,! )-~ ~ ,,.
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| I.,; I t - , .~ . .... l *,
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| U.,f , M1CUAR ~OOLATORY COMMISSIOB OOC'XETING & SERVICE SECT ION OFFrCE OF THE SE ,mARY Of' THF f".C MIS ION Document Statist ics Copi8' lteceived
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| _r/2/f~* I Add' I Copies Reproduced ~// -=1--- ---
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| t,eclaf Distributien
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| Samuel J. Chilk September 2, 1986 Page 2 We therefore agree that most of the proposed changes, including other proposals under consideration, but not yet proposed, will improve the hearing process by focusing the efforts of boards and parties on significant matters. With regard to the specific proposals, our comments are as follows:
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| Item 2 - Raising the threshold for admission of con-tentions. Undoubtedly, the most compelling need for change in the regulations is the Commission's requirement for the pleading of "the bases for each contention set forth with reasonable specificity."3/ This standard has been so loosely construed as to be written out of the regulations by some boards. We favor any proposal which would bring NRC J?roceedings more in line with federal practice under the Administrative Procedure Act. Any steps which would elimi-nate useless contentions are to be encouraged. Moreover, this proposal will not only reduce frivolous contentions, but also better define the scope of admitted contentions.
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| The Commission correctly notes that intervenors in separate proceedings involving different reactors commonly copy one another's contentions with little idea of their meaning or substance. As the proceeding progresses, the intervenor will drop some contentions and pursue others, depending upon his understanding of the technical issues.
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| In many cases, the intervenor simply has no understanding of the technical issue at all.
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| In many other cases, intervenors simply adopt a "table of contents" approach and frame contentions from an appli-
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| * cant's Final Safety Analysis Review, Environmental Report, emergency plans or other materials in the docket of the proceeding. The shot-gun allegations are then made, without any scientific or technical support, that the particular items do not meet NRC requirements or are "inadequate."
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| Another aspect of the problem is that many contentions are frivolous on their face. Efforts by licensing boards to eliminate groundless issues, however, have often been reversed by the Appeal Board in finding that the board below II 10 C.F.R. S2.714(b).
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| Samuel J. Chilk September 2, 1986 Page 3 conducted a prohibited exploration of the "merits" of the contention in determining its admissibility.ii Therefore, we support the Commission's change in the rule so that a contention must be supported by specific references to documented technical and scientific expert opinion. Requiring a petitioner to establish that a genuine dispute on a material issue actually exists should eliminate most frivolous contentions advanced by intervenors.
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| With respect to the specific language of proposed Section 2.714(b) (2), some misunderstanding may be created in stating that a contention may consist of an "issue of law . .
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| * or policy to be raised or controverted." This
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| * could be construed as overturning the longstanding legal principle that a party may not challenge an NRC regulation in a hearing or raise generic issues which are the subject of rulemaking. 5/ Similarly, it has been held that the Commission's adjudicatory boards are bound by its policy For example, an intervenor in the Allens Creek case succeeded in obtaining admission of a patently frivolous contention that a 100,000 acre marine biomass farm could produce alcohol or methane gas as an energy equivalent, environmentally superior alternative to the Allens Creek nuclear plant. Over the strong objection of its technically qualified member, the Appeal Board
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| * reinstated the contention after it had been dismissed by the licensing board. Houston Li~hting and Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 NRC 542 (1980). Predictably, the contention was dismissed on summary disposition, prompting the dissenting member to comment that admitting the contention "served no purpose other than to consume unnecessarily the time of the parties, the Board below and this Board. That time could have been much more profitably devoted to those issues in the proceeding truly deserving of serious consideration."
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| Allens Creek, supra, ALAB-629, 13 NRC 75, 83 (1981).
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| Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit No. 2), ALAB-456, 7 NRC 63, 67 n.3 (1978); Potomac Electric Power Company (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-218, 8 AEC 7 9 , 8 9 ( 19 7 4 ) .
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| Samuel J. Chilk September 2, 1986 Page 4 statements.~/ To avoid possible misinterpretation, we suggest that Section 2.714(b) (2) be rephrased to refer to a "specific statement of the issue the petitioner wishes to raise." A corresponding change should be made to Section
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| : 2. 714 (b) ( 2) ( iii) to refer to "an issue which petitioner wishes to raise."
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| Section 2. 714 (b) (2) (iii) as proposed should also be changed to delete the specific discussion of issues arising under the National Environmental Policy Act. There is no need for a special provision differentiating between con-tentions based upon an applicant's Environmental Report and amended contentions based upon the NRC' s Draft or Final Environmental Statement. Existing Commission precedents are
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| * already quite clear as to a petitioner's right to amend or supplement his contentions with new information which was institutionally unavailable at the time contentions were originally filed.
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| In Catawba, the Commission held that the institutional unavailability of a licensing-related document may create "good cause" for a late filing, but that "good cause" alone is not determinative. In other words, an intervenor must demonstrate that, on balance, it has met the five-factor test for admitting late-filed contentions "even if the contentions are based on information contained solely in institutionally unavailable documents."?/ As proposed, Section 2.714(b) (2) (iii) could be read to overrule this well settled principle.
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| In Section 2.714(d) (1), the Commission proposes to
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| * retain the rule on considering a petitioner's interest in intervention as presently stated in the rule.
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| est" requirement in the rule is unambiguous and Commission precedents expressly state that the test for standing developed by the United States Supreme Court should be The "inter-Mississi i Power & Li (Grand Gulf Nuclear Station, Units 1 and , 16 NRC 1725, 1732 n.9 (1982).
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| ']__/ Duke Power Company (Catawba Nuclear Station, Units 1 and 2) , CLI- 8 3-19 , 1 7 NRC 10 41 , 10 4 6 (19 8 3) .
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| Samuel J. Chilk September 2, 1986 Page 5 applied in NRC cases. 8/ To be an effective part of the rule, however, a more explicit statement is needed.
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| This is because the "interest" requirement under Section 2.714 has been effectively replaced with a de facto 50-mile proximity test.9/ In at least one recent case, the Appeal Board has left open the possibility of a retreat from its proximity test, at least in license amendment cases,l.Q./
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| See, ~ , Westinghouse Electrical Corp. (Export to South Korea), CLI-80-30, 12 NRC 253 (1980);
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| Transnuclear, Inc., CLI-77-24, 6 NRC 525 (1977). See
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| * also Nuclear Engineering Company, Inc. (Sheffield, Illinois, Low-Level Radioactive Waste Disposal Site) ,
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| ALAB-473, 7 NRC 737, 739-43 (1978); Allied General Nuclear Services (Barnwell Fuel Receiving and Storage Station), ALAB-328, 3 NRC 420 (1976).
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| J_/ In the North Anna case, for example, the Appeal Board held that "close proximity [i.e., within 50 miles] has always been deemed to be enough, standing alone, to establish the requisite interest" to intervene in a licensing proceeding. Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2), ALAB-522, 9 NRC 54, 56 (1979). As one licensing board later observed, "[a]lthough residence within fifty miles is not an explicit requirement for intervention by right; that limit is consistent with precedent * " Cleveland Electric Illuminating
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| * l.Q./
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| Company (Perry Nuclear Power Plant, Units 1 and 2),
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| LBP-81-24, 14 NRC 175, 178 (1981).
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| In the Pilgrim proceeding, the Licensing Board denied intervention on the ground that residence 43 miles from the plant was insufficient for standing to challenge a reactor license amendment affecting only the spent fuel pool. The Board stated that it knew of "no scenario under which radiation attributable to the fuel pool would affect a residence 43 miles distant from the fuel pool." Boston Edison Compan;, (Pilgrim Nuclear Power Station) , LBP-85-24, 22 NRC 7, 9 9 (19 85) . Affirming on other grounds, the Appeal Board left open the question of "whether either [petitioner's] place of residence or his consumption of food products originating in the vicinity of the facility serves to clothe [him] with the requisite mantle of standing to (Footnote Continued)
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| Samuel J. Chilk September 2, 1986 Page 6 but has not explicitly departed from its stated proximity test. The Commission has never sanctioned the replacement of its three stated criteria for establishing "interest" under Section 2.714(d) with a 50-mile proximity test . .!..!,/
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| Under the decisions permitting intervention on the basis of residence or activities within a 50-mile radius of the plant, boards have not required an intervenor to limit his contentions to those associated with the purported interest. For example, intervenors who reside more than 10 miles from the plant have been able to challenge emergency plans and preparedness for the plume exposure emergency planning zone. Similarly, intervenors have been permitted to litigate environmental impacts without any showing that
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| * the specific impacts alleged would significantly affect them.
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| These permissive intervention practices ignore the express criteria of the regulation and are contrary to the Supreme Court's rulings, adopted by the Commission, which require a litigant to demonstrate some distinct and palpable harm to himself beyond a mere generalized or abstract interest in the proceeding .12/ Therefore, the Commission should now state explicitly that (1) its three criteria for determining whether a petitioner has a sufficient interest for intervention shall be construed in accordance with the decisions of the federal courts on standing, and (2) that the proximity of a petitioner's residence or other activ-ities to a nuclear power plant, in and of itself, does not entitle a petitioner to intervene in a proceeding .
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| * As to the standard for admitting contentions, we agree that a petitioner should have to meet a greater threshold (Footnote Continued) challenge the proposed amendment to the Pilgrim operating license." Pilgrim, supra, ALAB-816, 22 NRC 461, 465 ( 1985)
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| * QI Although the Commission's pleading requirements for contentions have been challenged, BPI v. AEC, 502 F.2d 424 (D.C. Cir. 1974), no party has ever, to our knowledge, challenged the interest requirement for intervention under Section 2.714(d).
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| See Westinghouse Electric Corp. (Export to South Korea), CLI-80-30, 12 NRC 253, 257-60 (1980) (opinion of Chairman Ahearne and Commissioner Hendrie).
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| Samuel J. Chilk September 2, 1986 Page 7 showing in order to obtain a hearing on contested issues.
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| Nonetheless, we are concerned that the language in the proposed rule is unnecessarily redundant. In Section 2.714(b) (2) (iii), the Commission proposes that an intervenor must supply sufficient information to show that a "genuine dispute II exists on the issue raised. In proposed Section 2.714(d) (2) (i), the Commission states that whether a genuine dispute exists depends on "whether the information presented pursuant to paragraph (b) (2) * .
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| * prompts reasonable minds, versed in applicable scientific disciplines, to inquire further as to the validity of the contention."
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| In our view, it may prove confusing to apply both standards in conjunction with each other. We feel that the
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| * information which a petitioner is required to submit in support of his contention should not be confused with the standard by which it will be judged for admissibility. Our suggestion is to eliminate subsection (b) (2) (iii) and modify subsection (ii) to require references to the specific portions of the application (or omissions) disputed by the petitioner. The admissibility of a contention would depend on whether it prompts reasonable minds to inquire further as to its validity, as stated in proposed subsection (d) (2) (i).
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| Another reason for eliminating the "issue of genuine dispute" standard is that the same standard already applies to summary disposition of contentions under Section 2.749.
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| Regrettably, some boards have applied the standard so stringently as to render summary disposition practically useless in eliminating groundless issues. If existing law on summary disposition were applied to the proposed II issue
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| * of genuine dispute" standard for admitting contentions, the purpose of the Commission in proposing these changes could be defeated.
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| ently.
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| avoided.
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| Inevitably, debate will ensue over whether the same language in both provisions should be applied differ-This totally unnecessary controversy should be We also agree with the Commission that a contention should not be admitted if it appears unlikely that a peti-tioner can prove his case (subsection (d) (2) (ii)), or if the validity of the contention is inconsequential (subsection (d) (2) (iii)). The Commission should state, however, that these particular categories are not exclusive of all reasons why a contention should not be admitted.
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| We question whether there is a need for subsection (d) (2) (iv). Although contentions frequently involve legal issues, it is difficult to conceive of any contention
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| Samuel J. Chilk September 2, 1986 Page 8 admitted in a licensing proceeding which could raise a purely legal question.
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| We emphasize that the new rule should make it clear that the decisionmaker is expected to utilize the full range of scientific, engineering and other technical disciplines available to the Commission in reactor licensing. Boards should not judge the admissibility of contentions by lay standards.
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| Item 3 - Discovery against NRC Staff. In this pro-posal, the Commission states that it wishes to codify the case law on certain objections to written discovery in order to conserve its Staff's resources in objecting to discovery requests filed with the presiding officer. So long as the Staff remains a party to adjudicatory proceedings, it should not receive any greater protection than an applicant.13/ In its present form, the regulation which the Commission proposes to amend already gives the Staff undeservedly special status in responding to discovery.1..!/
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| Therefore, if the Commission wishes to institutionalize the two particular objections discussed in the proposed rule, it should enable all parties to invoke the rule.
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| Toward that end, the general rules on discovery could be amended to create a new Section 2.740(b) (3), using the language of the proposed rule but substituting "a party" in place of "the NRC Staff."
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| QI This is not some academic or abstract concern for equality. As the Commission is well aware, the licensing documents prepared by an applicant in support of its application are extremely voluminous. With regard to such matters as probabilistic risk assessment, severe accident risk analysis and similar technical studies, intervenors frequently seek discovery against an applicant just to obtain materials already in the docket or to request the applicant to perform new analyses. There is no justification for codifying the NRC' s case law on objections to such discovery for the benefit of the Staff, but not an applicant.
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| In any event, it is difficult to see how the Staff will save time or better ward off discovery by citing the proposed regulation instead of the case law which supports the proposed change.
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| Samuel J. Chilk September 2, 1986 Page 9 A matter of increasing significance will be contested enforcement cases. The Commission's policies involving civil penalties and other enforcement actions will, in time, be changed from the present generally-docile-acceptance of such penalties by licensees. Challenges will be made as to the accuracy, validity and basis of many of the Staff's conclusions and allegations, particularly when based upon the claims of "allegers." In such cases, the NRC Staff should have no more protection against discovery than any agency of the federal government instituting actions against its citizens.
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| In changing the rules to ensure that time is not wasted on unnecessary discovery, the nub of the problem is that intervenors do not do their own homework. From its incep-tion, the AEC/NRC licensing procedures have enabled a potential intervenor to inspect in the Public Document Room and local Public Document Room all material in the docket necessary to determine the position of the applicant and Staff on every possible safety and environmental issue._!~_/
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| Commonly, intervenors seek to discover earlier drafts of technical documents, privileged communications, technical work product and the like to create irrelevant issues. In copyright and patent law or, in the case of the NRC, materi-al false statement and similar cases, comparison of earlier versions of documents may be important. Commission licens-ing proceedings, however, resolve technical issues, not "who struck John.".!.§_/ *
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| * ~/ In Catawba, for example, the Commission stated that its hearing petitioner's requirements obligation are to "consistent examine the with a publicly available documentary material pertaining the facility in question with sufficient care to enable it to uncover any information that could serve as the foundation for a specific contention." Duke Power Company (Catawba Nuclear Station, Units 1 and 2),
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| CLI-83-19, 17 NRC 1041, 1045 (1983).
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| The technical and legal staff have, of course, an obligation to state any dissenting professional opinion on the record. See NRC Manual, Chapter 4125, Section 4125-02 (September 19, 1980). See also Memorandum from Edson G. Case, Acting Director, Office of Nuclear Reactor Regulations, NRR Office Letter No. 19 at p. 1 (Footnote Continued)
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| Samuel J. Chilk September 2, 1986 Page 10 Item 4 - Cross-examination plans. In this proposal, the Commission would make pemission to cross-examine a witness contingent upon submission of a cross-examination plan, which would include proposed questions and anticipated answers. The stated purpose of the proposal is to assist the presiding officer in deciding whether to grant a request for cross-examination and in assuring that cross-examination enhances the record.
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| We submit that there are other, more direct and conven-tional means to achieve these objectives. Moreover, dis-agreement as to whether a party has departed from its cross-examination plan or has offered a proper cross-examination plan is likely to produce collateral
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| * disagreements which will only confuse the record.QI Since the idea of cross-examination plans was original-ly proposed,18/ it has been tested by several, if not all, licensing boards. This experience has demonstrated that such plans are unnecessary for experienced counsel and are largely unenforceable against others, particularly lay intervenors.
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| (Footnote Continued)
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| (July 6, 1978). The Commission's adjudicatory boards have recognized the same obligation in requiring that Boards be provided with any new, relevant information.
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| See Geor~ia Power Company (Alvin W. Vogtle Nuclear
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| * Plant, Units 1 and 2), ALAB-291, 2 NRC 404, 409 (1975);
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| Duke Power Company (William B. McGuire Nuclear Station, Units 1 & 2), ALAB-143, 6 AEC 623, 625-26 (1973).
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| Even if an intervenor has reason to believe that the Staff is withholding or suppressing a differing professional opinion, a direct interrogatory to that point would be the simple and direct solution.
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| Proposed Section 2. 743 (b) (2) (iii) states that cross-examination plans and related orders will become part of the record on appeal. This underscores the possibility that rulings on cross-examination plans are likely to produce claims of error.
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| The Commission endorsed this requirement in Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 457 (1981).
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| Samuel J. Chilk September 2, 1986 Page 11 We believe that there are preferable means, which we endorse, to limit argumentative and irrelevant cross-examination of witnesses. No party should be able to litigate a contention beyond its stated interest in its petition for intervention. As a corollary, no party should be able to cross-examine except on its own contentions. To the extent existing precedent is to the contrary, 19 / it should be explicitly overruled. If parties have a common interest, their contentions may be jointly admitted and the board may assign lead responsibility in litigating the contention, including cross-examination, to one of the parties. 20/ This will prevent repetitious cross-examination by different parties, involving an endless rotation of examination by intervenors, the Staff and the applicant on direct and redirect examination, followed by Board questions and the same sequence of direct and redirect by the parties. It is inconceivable that courts of law would tolerate such wasteful procedures.
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| In essence, this rule is aimed principally at the lay representatives of intervenors. As noted, there is certain-ly no need to require detailed cross-examination plans from counsel representing the applicant, the NRC Staff, and other federal and state agencies in hearings. Rather than develop more paperwork beyond the necessary record, the Commission should simply reiterate that hearings be conducted strictly in accordance with the NRC's evidentiary practice.
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| As a final consideration, the parties have enforceable rights through discovery not to be surprised by the case presented by their adversaries. The board is neither a party nor an adversary and has no such right. Potentially, cross-examination plans inhibit a party in trying its case as it sees fit. For tactical reasons, it may wish to abandon altogether a portion of its planned cross-examination or pursue a new avenue previously unantic-ipated. As long as the testimony sought by cross-examination is relevant, material and not repetitive, See Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-244, 8 AEC 857, 867 (1974), reconsideration denied, ALAB-252, 8 AEC 1175, aff'd, CLI-75-1, 1 NRC 1 (1975).
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| Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), ALAB-836, 23 NRC 479, 500-02 (1986).
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| Samuel J. Chilk September 2, 1986 Page 12 it should not be within the province of the presiding officer to analyze whether or not a party's lawyer or representative has followed some predestined plan.
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| Item 5 - Summary disposition. We endorse the Com-mission' s proposal to permit a party to move for summary disposition at any point in the proceeding, including a hearing in progress. Basically, we endorse any change which would expedite the elimination of frivolous contentions under Section 2.749. The Commission should also shorten the basic time frames incorporated by the rule so that summary disposition can be made truly effective case management tool.
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| It is unclear from the proposed rule whether a motion for summary disposition filed during a hearing would require a party to file supporting affidavits. Therefore, the Commission should explicitly amend Section 2.749 to permit a party to move for summary disposition based upon the evi-dentiary record.
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| As the Commission has observed, it sometimes "becomes apparent that a genuine issue of fact is no longer in dispute,"21/ even during the course of a hearing. For example, TI the intervenor plans to call no witnesses, and the applicant's witnesses offer testimony which meets the standard for summary disposition under Section 2.749, there is no point in continuing the hearing simply to hear the testimony of witnesses presented by the NRC Staff and other parties. Nor is there any need for the applicant, as the moving party, to recast the testimony in the form of affida-vits or formal motion papers in order to obtain dismissal of the contention. The board has heard the testimony and is in a position to grant summary disposition on the contention just as a judge can nonsuit a plaintiff or direct a verdict upon determining that the party is entitled to prevail as a matter of law.
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| The Commission should therefore provide that a board should grant a motion for summary disposition based upon the applicant's testimony where (1) cross-examination of the witnesses has not created a genuine issue of disputed fact; (2) the intervenor is not calling any witnesses; and (3) no other party, such as the Staff or an ° interested State, 0 seeks a different outcome on the contention and intends to
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| ~/ 51 Fed. Reg. at 24367.
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| Samuel J. Chilk September 2, 1986 Page 13 call witnesses in support of that result. This will elimi-nate the necessity for filing proposed findings of fact and conclusions of law by the parties as a formality where the applicant has clearly prevailed on one or more of the issues.~/
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| Items 6 and 7 - Limitations on proposed findings and conclusions and a eals from initial decisions. It is commendable that the Comm ssion desires to limit an inter-venor's filings of proposed findings of fact and conclusions of law and issues raised on appeal to those which the intervenor actually placed or sought to place in controver-sy. There is no reason, however, for limiting this princi-ple to the final phases of litigation .
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| * Rather, the Commission should revise its procedural rules so that, at the very outset, an intervenor is preclud-ed from pursuing issues in which it has no cognizable interest. If this is accomplished, as suggested above, there is no need to amend rules on cross-examination, proposed findings and appeals in order to ensure that intervenors stay within the scope of their recognized interests. Therefore, we support this change, but believe that the Commission should effect a much more fundamental revision of its procedures.
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| Other Matters In 1984, other possible rule changes were discussed by the Commission and offered for public comment, but have not been included in the presently proposed changes. Some of these deserve further scrutiny .
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| a) Last Minute Allegations - Largely as a result of the Commission's guidance,23/ the Staff perforce has become much more efficient in dealing with late filed charges by allegers just prior to licensing. Indeed, the practice of intervenors bringing forth late allegations in contested as well as uncontested cases has diminished. Nevertheless, in adjudications, all late contentions should be banned unless
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| ~/ Limerick, supra, LBP-84-31, 20 NRC 446, 509-513 (1984),
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| aff'd in part, ALAB-819, 22 NRC 681 (1985).
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| See Statement of Policy on Handling of Late Allegations, 50 Fed. Reg. 11030 (March 19, 1985).
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| Samuel J. Chilk September 2, 1986 Page 14 there is a true finding of newly discovered information under Catawba, supra.
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| b) Certification of Prehearing Discovery The original proposal was that a party seeking discovery must certify that its request is made in good faith and not for the purpose of delay. Although the boards remain reluctant to impose any sanctions against intervenors, this require-ment should be adopted.
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| c) Contention Screening Panel - Uniformity in the evaluation of contentions is desirable, but total consisten-cy in results by different boards is an illusory objective at best. It would probably lead only to one more level of review and more frequent appeals. If the Commission adopts its proposed change regarding admission of contentions, which we endorse, the problem of inconsistency would be largely mooted.
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| d) Hearings on Issues - The licensing boards were created in an effort to reduce the time required for hear-ings. It was thought that having two "technically qual-ified" individuals on a board would assist the lawyer member to more quickly understand and resolve the contentions. No experiment in American administrative law has fallen wider of the mark. Rather than simplify the process, creating licensing boards has immeasurably prolonged the process by establishing an additional level of technical review to that conducted by the Staff and the ACRS.
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| As a second matter, it is significant that since the boards were created some 25 years ago on the theory of helping attorney hearing examiners understand technical issues, the percentage of technical issues has decreased.
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| Most of the contentions now advanced in the NRC hearing process could easily be decided by an administrative law judge, and there is little, if any, need for engineers and environmental scientists to participate.
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| e) Atomic Safety and Licensing ARpeal Board - The earlier proposals by the Commission questioned the need for the Atomic Safety and Licensing Appeal Board. The Atomic Energy Commission had some justification for abrogating decisional responsibility to an employee group because of its responsibilities for weapons and various other programs.
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| The Nuclear Regulatory Commission has no such excuse.
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| No other federal regulatory agency, except the FCC for limited purposes, delegates its statutory responsibility.
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| The time required for appellate review would be greatly
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| Samuel J. Chilk September 2, 1986 Page 15 reduced if such review were limited to the Commissioners.
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| Especially now that litigation has significantly decreased, the Commission can adequately control the actions of licens-ing boards through direct review of initial decisions, exercise of its sua sponte authority as it has in the past, and grant of interlocutory review where necessary.
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| Commissioner Asselstine's Separate Proposals As a procedural matter, we note that the separate proposals by Commissioner Asselstine have not been endorsed by a majority of the Commissioners. We do not believe that the Commission could, in the present rulemaking, legally adopt any of Commissioner Asselstine's suggestions to revise Part 2. Because the Commission has nonetheless solicited public comment on Commissioner Asselstine' s proposals for the purpose of giving them further consideration, we offer the following observations.
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| Item 8 - Public document room. Before the Commission institutionalizes the concept of a "local" public document room, it should take a very hard look at what requirements it wishes to impose upon its Staff for the establishment and operation of such a facility.
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| Item 9 - Public notice u on recei t of an a lication.
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| We believe that the Commission's exist ng procedures for public notice upon docketing of an application are fair, manageable and well understood by all concerned. Earlier notice as to receipt is unnecessary. There is ordinarily a lapse of several months between docketing and issuance of notice of opportunity for hearing. This is more than enough time for potential intervenors to become familiar with the application and contact the NRC. We see no benefit to an earlier publication of notice that the NRC has received the application.
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| Typically, an application is supplemented and amended after receipt by the NRC but prior to docketing. Therefore, Commissioner Asselstine's suggestion could be construed to require the NRC to notice its receipt of each amendment to the application prior to docketing.
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| Item 10 - Notice of hearing. Similarly, we believe that the Commission's practices regarding the publication of notice of hearing are sufficiently understood and ingrained in agency practice that, absent a compelling reason, the rules should not be modified. It is, of course, the prac-tice of the NRC to require in the notice that interested parties file petitions for intervention within 30 days. We
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| Samuel J. Chilk September 2, 1986 Page 16 have no objection if this longstanding practice is codified, as long as it is made clear that notice may be shortened if appropriate and that prior notice for license amendments under 10 C.F.R. S50.91 may be eliminated if exigent circum-stances so demand.
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| Items 11 Notice of proposed action. We agree with Commissioner Asselstine' s theory that hearings should be commenced as soon as practicable after the docketing of an application and that the designated board should decide, as soon as practicable, whether a hearing is required. Howev-er, there is no purpose in commencing a hearing until the Staff has completed its technical review on contested issues. The way to expedite licensing is to require the Staff to expedite its review on such issues to accommodate the intervenors, but without waiting for completion of all technical matters, i.e., the Commission should amend Parts 50 and 51. On the other hand, these suggestions are really a matter of internal agency management. Such matters* are more appropriately handled by Commission policy statements and oversight of its cases.
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| Item 15 Intervention. Commissioner Asselstine's proposal on filing contentions and rulings on their admis-sibility has two stated objectives. The first is to elimi-nate the necessity for boards to rule upon contentions where a petitioner fails to show he is entitled to intervene in the proceeding. As a practical matter, boards have already adjusted to this possibility by a two-phase procedure.
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| Initially, the board decides the threshold question of the petitioner's admission to the proceeding and denies inter-vention or grants intervention conditionally, subject to pleading one valid contention. Only then does the board rule upon the pleaded contentions.
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| The other objective is to give intervenors more time to frame their contentions. As noted in our prior comments, the docketing of the application is noted in the Federal Register months in advance of the notice of opportunity for a hearing, which gives potential intervenors ample time to review the record and frame contentions. Experience has shown that serious intervenors are not constrained by the present filing requirements. In our view, Commissioner Asselstine's proposal is not regulatory reform, but only an opportunity for more intervenors to state the same case.
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| Item 16 - S~ecial prehearing conference. We believe that "provisional rulings upon the admissibility of con-tentions, akin to a motion to dismiss in federal court, will only add yet another step to already lengthy proceedings and
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| Samuel J. Chilk September 2, 1986 Page 17 unnecessarily delay the inevitable denial or admission of contentions.
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| Item 17 - Prehearing conference. The proposed standard for admitting contentions is similar to that which the Commission has proposed, which we endorse.
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| Respectfully submitted, sdd
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| ~~ofr,(bc*/f?~
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| COMMENT$ OF OHIO CITIZENS FOR RESPONSI BLE ENER GY, I NC. < "OCR E *) OOGKETEO ON PROPOSED RULE, " RUL ES OF PRACTI E FOR DOMESTIC LICENSING USNRC PROCEEDING S - PROCEDURAL CHANGES I N THE HEARING PROCESS" 51 FR 2436-5 <JULY 3, 1986) 116 SEP -3 P1 :59 on July 3, 1986 the NRC published in the Federal Register a p oposed rule conc e rning procedural chang es in the heari ng OFFI CE o::- S::Cf,C: T,\R'-'
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| pr-ocess (51 FR 24365). Two proposo l s were offered for comm efHl-CKET: Nf3 ;;, S:*-/lfi:
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| one f r om th Reg u l a to r y Re f o r m Ta s k For c e (
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| * RR T F * ) and t .h e o t her 8 Rti NC '-!
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| from commission e r Asse lst i n e . Ohio Citizens for Responsible Energy, Inc. ("OCR E"} h e eb y submits it s comm e nts on th e s-e proposals, OCR E favors commissioner Asselstine's pr op os e d chang es to 10 CFR 2. OCR E f i nds th e RRTF p ropo sed r e vi s ion s to b e unaccep able, as th e y would vitiat e th e effe ct ive n e:s of public participation in licensing hearin gs.
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| I. Specific Comments A. RRTF Proposals
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| : 1. Section 2. 714 The RRTF proposed r e vi sio ns to 10 CFR 2.714 would substantiall y raise the threshold for a d mi ssio n of co ntentions.
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| Rather than the "ba s is set forth with reasonable spe cificity
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| * standard now us ed , th e proposed rule would r eq uire in ter v enors to pr o vid e a *conc ise stateme nt of the a lleged fact or e x pert opinion* to be r el i ed upon *tog ethe r with refer e nce s to tho se specific ources and documents* upon which th e interveno r intends to rely.
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| OCRE Finds this s tandar d to be mo r e app l icabl~ to the s ummary di spos it io n s ta ge than to the pr_liminary stages of ~
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| proceeding when determining party s tatus. Th- standard wo u ld essentially requir e a petitioner to pro v e its c ase befo r e e v e n being admitted to the proceeding, This is a standard not r equ ired in the federal courts; it would app e ar that the somewhat l ess formal agency p roce edings should not have such a stringent standard for admis sio n to th e proceeding, Requ i ring a petitioner to identify all documents and other sources to be relied upon - at the outset, a s the basis for th2 con ten t i an , r a i s es the d i f f i cul t qu es t i on of w he the r the i ~ 1-t ..f ~
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| interv e nor will be limit ed to making its case to only th0s e ,A source s a *e- later st ages o f the proceeding, e,g,, the e v identiar y hearing, e v e n if s ubsequent sources are found offering relevant and mat erial e vid e nce . Compare Cle v ela nd Elec tric Illumi natin g co. ( Perry Nuclear Power Plant, Unit s 1 an d 2 ), ALA B-6 7 5 , 15 NRC ill 5 , 111 5 <198 2) ( a Li c e n *;; in g Bo a rd sh o u l d no t exp a-' d a_ n-inte rv enor
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| * s contention beyond its self-impos d limitations).
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| Given this ruling, a Board 's admission of e vid e nc e , be yond that
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| &la-~ UGULATOltY COMMISSION
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| .. ' DOQCFrl'IIG & SERVICE SECT ION OFFICE OF THE SECRET ARY OF THF CC'MM'S~ION
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| * Doc~11Mnt Statistics C.. ltec* *J t/ztt/f"~ I
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| 'AM' f Copicu R3p,o".!uced _ - - * - __
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| lpc* Oistributi*n
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| page 2
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| -- - - - ---- - ___ \ -- --
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| firs!: identified as the basis for the contention could be seen as expanding the contenti~n.,beyond its original limitations, The resultant necessary exclusion of relevant and material evidence on an issue is neither fair nor logicGl, and would lead to a d~~isian based upon an incomplete record, An intervenor's ability to make its case would be, in all likelihood, severely limi~ed, as there ,
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| is often very little information available -
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| at the beginning of the proceeding, and discovery and new research
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| \
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| almost always produce additional relevant material, all of which might be ex~luded fr9m the hearing record.
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| ~ -~- ~- .. :.
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| The***propo;;al would alsw appear to be contrary to Section 189(a) of the Atomic Energy Act as interpreted by the courts.
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| In San Luis Obispo Mothers for peace et al v, NRC, 751 F.2d 1287, 1316 <D. C. Cir. 1984), a disti_nction was m~de between a material issue Cthe showing necessary to obtain o hearing under sect:ion 189(a')) and m_ateri_a1-e*1idence*, Requiring ;a. petitioner*
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| to adduce material evidence is *a substantially more onerou~
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| burden* than raising a material issue, the only statutory prerequisite to obcaining a hearing, The RRTF-proposed changes to section 2.714 would essenci~lly require a p~titioner to set forth material ~Viden~e at the o u ts e t
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| * Sec t i on 2 . 7 14 .( d ) <2 ) Ci i ) re q u i re ;; . th a t the pres i d i n g officer refuse to ~dmit a contention if "it appears unlikely th~t petitioner c~n prove.a set of facts in support of its contention," paragraph (i) of tha~ section (and p~rt (b~ (2) (iii)) establishes that a pe.titioner mus'c demonstrate the *
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| ~xistence of a genuine dispute of material fact, _law, or policy, This is the standard now u;;ed for summary disposition, 1~ CF~
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| 2 . 7 4 9 ( c!)
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| * How_ eve. r , i: he prov i s i on o f proposed Sec c i on 2 . , I 4 (d) (2) (ii) is even more severe than the standar*ds- one mu;;.1: :10!..'
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| meet to avoid summary di;;position. presently, the burden* in deciding a mot~on for summary disposition i;; on the movant, not on the opponent, And, a party opposing summa~y disposition need not show that i t would prevail. but only that there are genuine issues t:o be tried.
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| (See, e.9., NUREG-0386, NRC practice and procedure Digest, section 3.5.3.) BY requiring denial of Q contencion when it appears unlikely that the petitioner cou~d prove it, the proposal is demanding that a petitioner adduce at thE outset material evidence sufficien~ to prove its case. This is clearly contrary to the Atomic Energy Act, which only requires that a petitioner raise a material issue.
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| The :toted reasons for substantially raising the threshold for admission of cont:entioTis is that, *under current proctice, the presiding officer makes no inquiry into the merits of a contention in ruling on its admissibility,* apparently, in the commission's mind, leading to the admission of "frivolous
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| Page 3
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| =ontentions.
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| * Having participated in the operating license proceedings for the Perry and Beaver Valley 2 plants, OCRE can attest to the fact th~t presiding officers do in fact inquire into the merits of proposed contentions, While they properly do not requ~re intervenors to prove their cases ac the outset, tt-.ey do probe the bases for the proposed contentions thoroughly anough th,:H frivolous ~~ntentions and *imaginary issuee* ar~ not admitted.
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| OCRE kno~s of no instance in which *frivolous* or "imaginary*
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| contentions were admitted, and the commission's utter failura tc identify any such admitted issues in any proceeding renders the RR T F- proposed - 2
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| * 7 14
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| * t *a be a remedy i n sear c h o f . an d i l @en t , ctn a an extraordinarily ~arsh remedy at that, ThE commission's di ;;cuss ion gives orie the impression that ever::,-* contention*,
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| meritorious or not, prQposed by intervenore is automatically admitted. This is simply not the reality of the situation. A re*; i ew c. f recent ca'ses would i nci i ca te th~, t. the. licensing boc,r*ds do a good JOb o( separati~g the whea~ from the chaff, Requiring an i~tervenor ta be able to prove its case at the outset also contravenes the long-standing rule that tMe applicant, not the intervenor, bears the burden or proof in NRC.
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| l'icensing proceedings, 10 CFR 2.732,
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| .:.. . Sect:.on 2.720 r1-.-e RRTF.,proposal would rasl:rict dis.:overy against the NRC
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| *staff even more than i t is no~. oeRE beli~ves that_ if ths Staff i:i l:o ret.:iin full Rarty s-tacus in NRC proceedings (a, debatable pc.int}, it ihould be an equal *party and not a ~rivileged ~q~tY.
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| The restrictions now present in 10 CF~ 2.720 against di;;covery against the s:taff st-iould be* eliminated. W.hile *tne Fed, ~ -
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| n at ice . ta l. ks of conserving* *
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| * scar.: e _st a f .f resources ,
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| * alma st certainly the Staff has ~reater resources t~an most i~~ervanors.
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| The comm is s i an 5h ws no concei:-_n for ,con ;;erv i ng l:he sea :rce resource:* of in ter_ve nors. If licen~ing eraceedings are in fact*
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| a drain on Staff resources (an asserl:ion not substantiated bY e*J i de nee) ,
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| the Proper cour5e for the NRC co take i;; 1:*a. :eek* increa,:;ad appropriations from Congress. Inhibiting the flow of information in il:;; licen;;ing proceedings is not the fair and just answer.
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| The proposa1 would make an adequate Staff re;;ponse to an interrogatory athe title, page reference, and location of the.
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| relevant doc4ment* containing infarm6tion responsive co the queE ti on-. However,* a problem arises in the s i -cua ti.on where Oil intervenor Wi:ihes to offer into ev~dence a Staff document nol:
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| included or expressing different fact: or opinions than the Staff's formal position as contained in its testimony, ~GS9 law has held that documentary evidence Sh Ul~ be sponsored bY a
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| .. *"' ,*t,
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| ',)
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| Page 4 competent witness. puke Po\..'er Cg, (McGuire Station), ALHB-669:
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| 15 NRC 453 (1982). The witriess most competent to testify on a Sl:aff documEnt is l:he Staff or contractor per~onnel preparing it, But, HJ CFR 2.720(h) (2) (i) pr'Ohibits (except upoTI a showing of exceptional circumstances) a porty from calling a particularly nomed Staff person to testify, So, a very neat *catch-22" situation is Lreated, The Staff's position is made publicly available in documenl:5, (See 10 CFR 2 Appendix A, Part IV(d).) Documents are not admissible unless sponsored by a competent \..'itness.
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| But, a party may not comRel the appearance of a particular Sl:aff witness. Documents refuting the Staffts formal testimony thus never get into the hearing record, br if l:he board in its discretion does admit the document, it will probably be given, little weight, see Cleveland Electric Illuminating co. (per~y Nuclear Power Plant, Units 1 and 2), ALAB-841 (July 25, 1986), Slip op, at 16,
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| *footnote 34. If the t~RC insists on shielding the Staff frorr, the full disclosure expected of other parties 1n discovery by merely citing documents, 10 CFR 2. 743 should be umended ta include a' Pro 'Ii :Si on assuring the , ad mi s s i bi 1 i l: Y , f O Y" a 11
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| * e Vi den l: i a r Y FUrposes, of all Staff or contractor documents reasonablJ*
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| relevant to the issues being litigated. Ab5ent a showing of ,
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| forgery or alteration by a party oppos*ing its admission, a dac~~ent purporting* on ics f~ce to be ~.NRC staff wr contractor document (e,g,, NUREG, Staff request far information to a licensee or applicant, NRC memorand~, Regulatory Guides, inspection report~, SECY papers,
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| ,etc,) shall be considered self-authenticating, 5uch*a provision is the only *fair means ~o protect the rights of othe~ parties and to en 5 Ure th a t de~ i 5 i on s .are m.a de on the bas i s o F G C om P l' e t: 2
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| *~videntiory record, if the Staff is to limit ~ts di5covery responses to references to documents.
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| The RRTF proposal would expressly prohibit interrogatories in9uiring into the Staff's reasons for not using alternative data, os:umpti~ns qnd analyses in the NRQ Stoff review. Th~s i5 an u~reasonable restriction. In an instance Where an intervenor's contention challenges the adequacy of the Sta~f*s review (particularly in NEPA issues), this provision would severe 1 y 1 i mi t the i n t e I" v en or ' s a b.i l i t y to make i ts case
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| * Explanation of why some assumptions, data and analyses ~ere used and why others were QOt is ~n entirely reasonable and necassary area for discovery.
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| : 3. section 2.743 Cross-examination ha: been called "the essence of an adjudicatory hearing.* Cleveland Electric Illuminating Co, (Perry Nucl~ar Po~er Plant, Units 1 and 2), ALAB-443, 6 NRC 741 (1977), Notwithstanding this pronouncement of its own Appeal
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| page 5 Board, the NRC in the RRTF proposed revi~ions to 10 CFR 2.743 would not allow cross-examination unless a party has requested permission to do ~o and has filed with the Board a cross-e~arnination plan containing thE proposed line of questioning (and postulated answers) and the objective to be achieved thereby, The purported goal of this proposal is apparently to redu~e the number of *c1utcered triai records* resulcing from
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| *unfocused questioning,* .Again, no examples are cited. one gets the impression from the ~d. ~ . notica .that cross-examinotion, oryce it has begun, is allowed to proceed unfettered by the presiding offic~r until (implicitly) the intervenor has exhausted every dilatory tactic in its malicious bag of tricks.
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| ThE fact is that opposing ~arties can and do pose numerous ObJections to cross-examination. presiding offi~ers do sustain those o5Jections found to be meritorious, A review of recent cases would reveal ~hat the boards are doing a good Job of preventing the unfocused questioning and ~luttered records dee@ed deleterious. The conduct of che hearing and the scope and amount of cross-examination are areas traditionally left to che discretion of the presiding officer, and the RRTF proposal should be reJected in favor of conti~uing this tradicion.
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| The pr~parotion of such detailed cross-examination plans as tnis Proposal would require would work a hardship on the parties. OCRE can also envision a number of problems in the
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| *implemencation of this opproach, What if the WicneEs does not give the 9 POEtu~oted ans~er* to a qu~stion? Will the cros:-
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| e~arniner be QYlowed to deviate from the plan in this situation?
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| or will this be an.excuse for the board to terminate c. line of questioning? What about redirect and recross? would advan~e plans have to submitted for these? To do so would be virtually imposs i b 1 e, a~ questions on redirect and* recross wi 11 no c be
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| *k now n u r, t i 1 a f t er cross - e.x am i n a t i on ta k es pl ace
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| * prep a r i n g plans to su~mit to the board would m~rely delay the hearing, vet another point is troublesome. Even though the rule would require the cross-examination plans to be submitted to the board alone, this may prejudice the outcome of the hearing, Unfor.tunately, it is OCRE's observation that some member: of the Licensing Board panel hove e~hibited definite pro-utility bias.
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| BY revealing to tne Board the objective of the proposed questioning, a biased Board could cut off an effective li~e of questioning for contrived reasons. The availability of appeal on the ma t t er is not an e f f e ct i v e subs ti tu t e *f or prevent i n g the abuse.
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| 4 ,, 5 e c t i on 2 .- 7 4- 9
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| page 6 T~i5 proposed amendment would allow motions for summary d_i s po s i ~ i on to be f i led at any time , even during the hearing ,
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| *when it becomes apparent that a genuine issue of fact is no longer in dispute.* This is entirely illogical, The purpose of summary disposition is to avoid conducting unnecess~ry hearings on issues raising no factual dispute. In fact, the Appeal Board has ruled that summary disposition is appropriate only for matters which have not alr~ady been the subject of an ev~dentiary hearing but which are susceptible of final resolution on the paper: submitted in advance of any such hearing, Tennessee Valley A,uth_ority (Hartsville Nuclear Plant,
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| ** Units 1A, 2A, 1B, and 28), AL~B-554, 1e NRC 15 (1979).
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| completion.
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| once a hearing has begun, ho~ever, boch logic and the Administra~ive Procedure Act require it to proceed to The RRTF proposal would create the potential for much abu~e, disruption of the hearing, and re5ultant delay in the proceedings, OCRE can envision ~arties filing for sum@urY dispositiun after submitting direct testimony which chey fGel is disposicive of the case. after elicit{ng what they feel is a damning response on cross-examination, etc. The orderly progres5 of the hearing would be con5cantly disrupced bY motion:
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| for summary di spo: it ion to which the other_ por ti es mu: t respor,d C and upon which the Board must rule, Even without such abuses, this proposal would impose 5Ubstantial hardship upon the partias, Logic and efficienc) dictate ~hat motions ror summary disposition be filed and ruled u~on far enougn in advance of the hearing thac the partie5 do no~ have to simultaneously respond to summ~ry disposition motions and prepare for a hearing ~hich may never be held, 0_1:2RE also believes that summary disposition :hould not be permitted uptil after the close of discovery, as only chen will the partle;; have gathered sufficient f~cts as to properly support or oppose a motion for summary di5position,
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| : 5. sections 2.754 and 2.762
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| . The RRTF proposals would restrict parties to filinQ proposed findings and-appeals on only those issues which tHey sought to place in controversy. -This is again a matter bese left to the discretio~ of the presiding officer. OCRE would also note ~hat the Administrative Procedu~e Ace, 5 USC 557(c), apparently entitles all parties to the right to file proposed findings and conclu:;;ions.
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| B. commissioner Asselatine's Proposals OCRE fully supports the proposal5 advanced by Commissioner
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| page 7 Asselstine. These revisions would enhance the hearing process bY ensuri~g fairness and due proces~ and promoting efficiency, Ruling on a pecitioner's standing in advance of ruling on the merit5 of proposed contentions and allowing a 90 day period in which to draft contentions should greatly allevi~te th2 *rush" at the outset of the proceeding which may re5ult ip poorly drafted contention~ and other problems which may plague the proceeding throughout. It would also relieve persons lackiDg standing from the effort of proposing contentions. comMissioner Asselstine's approach is far more Just and sensible ~han the RRTF Rroposals.
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| Tbe RRTF revision5 should be rejected, and Commissioner
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| -*- AsselstinE's odopte~--- _
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| commissioner Asselstine has requested public comments .on
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| ~nether the 90 day period in ~hich to drQft contentions is sufficient. OCRE believes that 120 days might be more appropriate. License appl~cqtions are usually voiuminaus, and the extra time devot~d to their careful study at th2 incepticn of the proceeding shciuld reap benefits in greater efficiency thereafter.
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| commissioner Asselstine has also requeat~d comment on the advisibility of revising the NRC's rules on the admission of late-filed contentions to require admission of a contention based upon information previously institutionally unavailable.
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| OCRE would strongly support this r~vision, The five factors of 10 ~FR 2.71~ presently used in deciding whether to adwit late-fil2d con~entions are more properly reserved for det~rrnining w~ether to admit late petitioners, Having* the separate test suggested by commissioner Ass2lstine is far more appropriate, It is also consistent with tne holding in Union of concerned scientists~. NRC, 735 F.~d 1437, 1443 CD.C. Cir. 1984): under the Ato~ic Energy Act, once the ~earing has ~egun, it st->all encompass all material issues raised by the requester, Raising the threshold for litigating material issues after the initi~l ruling on contentions may not be consistent with section 189(a) of the AEA.
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| com~issioner Asselstine ~equested comment on the proposed revision to 10 CFR 2 prepared by the Chairman of the Atomic Safety and Licensing Board Panel. However. O~RE has been unab~e to obtain this document from the PDR and is thus unable to comment. ~RE would note its general agreement with Howard Shapar, former Executive Leg~l Director, who in NUREG-05~5,
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| *seminar Report on the Public Hearing Process for Nuclear power Plants,* stated that sweeping ~evisions to the rules of practice are not needed as the rules are based upon the Hdministrative Procedure Act and the Federal Rules of Civil Procedure.
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| II. Regulatory Flexibility Act Analysis
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| K 'P *.-,
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| * Paga 8 The NRC claims that a regulatory flexibility analysis need not be prepared because the propo~ed rule will not have a significanl: economic impact upon a subsl:ancial number of 5mall entities. 51 FR 24371. OCRE believes this claim is erroneous for l:he RRTF proposals, ~hich ~ill have a severe impact on small entities if promulgated, OCRE contends that a regulatory flexibility analysis must be prepared for the RRTF proposals, Gnd that su~h an analysis would not support approval of the RRTF proposals, The NRC claim~ that the impact upon incervenors 4ill be neutral, as the RRTF proRosal~ would increase the costs of preparing requ~sts for hearing but reduce costs once the hearing begins, perhaps this *cost reductionL truly stems from the fact thac, under l:he RRTF proposals, it is very unlikely that a hearing would be held, This t~eory is corroborated by th~ NRC's s ta t 2 men t th a 1: the prop o s.e d r u 1 a w i 11 reduce the pro c e du r ti 1 burden on NRC licensees bi "improving* the hearing proceEs, Acl:uallY, this statement is neither appropriate for purposes of the Regulatory Flexibility Act nor entirely l:~ue. IF bi "NRC licensees" i t is meant holders of licenses issued under part 50 for nuclear power generating facilitie;, then this is an inappropriate class to consider under the Regulatory Flexibilil:Y Act, The NRC has always held that such licensees, being alectric utilities do~inant in their ;ervice areas, are not
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| ** small entities; thus, the Regulator~ Flexibility Act does not apply to chem. "NRC licensees* on its face 01;0 incl~des
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| *per;dns licensed to possess and use source and byproduct material (industrial, research, and medical users of radioisotopes)' and research reactor 1 ice nsees.
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| Many of these per;ons fit the *small entities* category of 5 US~
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| 601. The~e entities would suffer along with intervenors f~om the increased costs and decreased effectiveness as;ociated* with the RRTF proposals in hearings held regarding modification, suspension, or revocation of their licenses.
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| The RRTF proposals will have a significant adverse eco~omic impact upon small entities such as OCRE, OCRE, an intervenor in the operating license proceeding for the perry Nuclear power Plan~, is a nonprofit, tax-eY.empt corporation inde~endently owned ond operated and not dominant in its field, OCRE is a small organization with limited resource;, Tnus, OCRE is a
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| *small entjty* within the meaning if the Regulatory Flexibility Ace, 5 USC 601 (4) and (6). A great man::,, of the organi:;:::ations intervening in NRC proceedings have similar characteristics.
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| The RRTF proposals would have devastating economic impacl:
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| upon OCRE. In order to retain the same level of effectivene=s as is possible under the currant rules of practice, OCRE Mould
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| page 9 have to spend much more money; In order to meel: the higher threshold for admissiDn as a party under the RRTF proposals.
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| CRE would have ,to mount- a herculean effori* to review the license application, draft contentions, obtain expert opinion in support of the contentions, and local:e and obtain every documer.~
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| re 1 e\1 an t to the con ten t i on s . A11 o f th i s mus t be done b y 1 5 days prior to the speciol preh~aring conference, which may be held at.any l:im~ l:he presiding officer may establish but net more l:han 90 days from the notice of hearing,
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| * Then, assuming that it is even possibie to surmount the high RRTF threshold for interve~tion, OCRE would have to be ready at*
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| any time (even before the completion of discovery or during the hearing itself) to successfully oppose numerous and* repetitive motions for summary dispositiop of its contenti6ns.
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| I As~4ming thpt the*contentions survive sum~ory dispcsition, OCRE must t.hen prepare detailed cross-examination plans just l:o gain permission to CDnduct cross-examinpticn ~t the hearing~
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| This would necessitate considerable effort and .~xpense.
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| And, because the RRTF proposals-would make abuses of our rights by the boards easier, more effort ~nd money would hov2 tG be spent on appeals and judicial review to preserve these righl:S',
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| It is OCRE's rough estimate that the RRTF propcsals would increase the costs of intervention for sm~ll entities like OCRE at least tenfold. The proposed rule *therefore does pose a significant economic impact on smali entities~ and ~he NRC should be re~uired to perform a* regulatory flexibility an~lysis.
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| If on initial regulatory flexibility analysis were performed in accordance with 5 USC 603, it would be found that the RRTF propoEals are not justified and that alternatives exi:t Which would have far less impact on small entities ~hile still increasing th~ efficiency of the hC~'i ng process. For example, 5 USC 603(b) (1) and (2) requires a description of why the proposed action is needed Gnd,a statement of its objective Gnd legal b6sis. The NRC in advocating the RRTF proposals has utterly failed to provide any valid reason for considering these rev~sions. The only reason given is a vague reference to "improving* the licensing process. No eyidence is ~resented that the current rules are unworkable or inefficient. There is no explanacion of why non-regulatory guidance would not accompliEh the same objectives. The NRC did in fact issue a Statement. of Policy on, the conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452 (1981), which encouraged but did not require some of thev\
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| concepts in the RRTF proposals, e.g., th~ use of cross--
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| pc:1ge lo examination Plans, The NRC has given no indication that this guidunce hos been ineffective, .And rather tnon conside~ing olternacives wnich wGuld take.into account the limited rescurce5 available t6 :mall entities (5 IJSC 603(c)), the NRC is.
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| ~pecificallY advocating rules which would substontiall~ incr2ose the bu~dan on small entities.
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| Tha *RRiF proposo ls comp 1 e ce l y fail to mee l:- the letter one!
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| intent of the Regulotory Flexib;lity Act and should, be re:j_ected.
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| Cummi~siGner Asselscina's propo5als, however, _ore a welcome improvement and would serve to redµce the burden on small
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| ~ntities participating in th2 licenaing process. OCRE urges the NRC to adopt commissioner Asselstine's proposed revisions ~o 10 C'.FR part .2.
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| Respecttu11y sub~i~ted, Susan L. Hiott OCRE Representative 8275 Mun5on,Rd .
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| .Men tor_, Oti
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| * 44.069.
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| (216)255-3158
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| AU9Ui!it 29, 1986 Mr, Frank swain Chief Counsel for Advocacy U.S. small Busines~ Adminietrat1on 1441 L Street NW Suite 1012 Washington, DC 20416 Qecir Hr. Swain:
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| Ohio Citi;:ens for Responsibl~ Energy, Inc, ( 1 0CRE 1 ) would like to call to your attention a proposed rule under consideration by the U.S. Nuclear Regulatory commission. This propo$ed rule, *Rules of Practice for Domestic Licensins Proceedings - procedural Changes in the Hearing Pro2ess* (51 FR 24365, July 3, 1986) would, in OCRE's opinion, impose a
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| ;ubstant1al financial burden on small entities such as OCRE.
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| ** The Regulatory Flexibility Act, 5 USC 601 et seq, require~
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| federal agencies to prepare an initial regulatory flekibilitY analysis when publishing a notice of proposed rulemaking, However, the NRC claims that a regulatory flexibility analysis need not be prepared because the proposed rule will not hove a significant economic impact upon a substantial number of small entities, 51 FR 24371. OCRE believes this claim is erroneous for the proposals of the Regulatory Reform Task Force ("RRTF"),
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| which will have a severe impact on small entities if promulgated. OCRE contends that a r~gulatory flek1b1l1ty analys1£ must be prepared for the RRTF proposols, and that such an analysis would not support approval of the RRTF proposals.
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| OCRE has enclosed a copy of its comments on the NRC's proposed rule, These comments detail the burden the RRTF proposals would impose on small entities such as OCRE. The
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| ~omments also demonstrate the RRTF proposals to be bosi~ally unjust, unnecessary, and in conflict with law and NRC rules and I policies of 1ong5tanding, OCRE hopes that you will investigate ~h2 NRC'3 departure from the letter and spirit of the Regulatory Flexibility Act and will ta~e the appropriate actions.
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| Respectfull/ submitted, Su3an L. Hiatt OCRE pepresentotive 8275 Munson Rd, Mentor, OH 4406fl (210)255-3158 cc w/enclosur-e: NRC senator John Glenn senator HGw~rd Het=enbaum Congres5man John Seiberling congressman D~nnis Eckart
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| IJUCAiINUWPR -:;Z WI fSHPfJl Ill
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| [5.IFIJ,,2.4?J6s ~
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| DOCK[ r(('
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| U5NRC
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| '86 SEP -3 P1 :54 Dr. Dorothy K. Cinquemani t !f:IPPIP@E 3
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| 0
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| ~_!:!!fin ~!fl\lWY 1J8~K£1'1.:f~~_3s ER v1cr t.lt*. j, August 29, 1986 Docketing and Service Branch Secretary of the Commission U. S . Nuclear Regulatory Commission washington, DC 20555
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| ==Dear Secretary of the Commission:==
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| * I am writing you as a concerned citizen and in the name of the New Jersey Safe Earth Alternatives Alliance.
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| We strongly oppose the so-called "reform"of the licensen-ing procedure for new nuclear power plants.
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| Chernobyl, atop the many near disasters in the U.S.A. and abroad should not be ignored in dealing with nuclear power plants. Dr. John Gofman, both physicist and physician, and perhaps the most knowledgable world authority on the effects of radiation has estimated 357,655 fatal cancers outside of the USSR (including only the Ukraine) and a total of fatal and non-fatal cancers and leukemias for the same area at 730,020. How many more warnings do we need?
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| ew Jersey had what was described as the worst near miss up to that time in the USA since TMI 2(which we understand came within 30-60 minutes of an complete core melt). And Sandia Lab estimates had put the first year fatalities at 100,00 for a Salem 1 or 2 worst case accident . And now you have let Hope Creek go on line (with its assembly error) making it the largest producer of commercial nuclear energy in the USA. , , l1 New Jerse1 is also threatened by Indian Point, some 35 miles from Montclair , And then there are the problems with Mark 1 GE reactors: the new Hope Creek 1 and Peach Bottom 1 and 2.
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| Thus we of NJ S*E*A Alliance ; urge you 1 )) do not expedite or "streaminine" licensening procedures
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| : 2) do no) in any way inhibit the full participation ofthe public in the licensening process (we understand that after intervenors presentation trying to prevent TMI 2 fr 5 m going on line they lost by 1 vote. Sometime the NRC might just heed some intervenor and prevent that total core melt you have given as a 45% chance by 20000.
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| Sincerely yours, nc: Exerpts from S *E*A ~S Summer, 1986
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| ~ I )~,ri~r V
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| f SEP 4 .....,1986 Acknowled&ed liy c:an,I * *****.***.* .....,._..r.::i,,._
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| D* . NUOJA~ ltCUlAfC~Y COMMfSSfOM DOCKETING & SERVICE SECTION OFFICF F rq~ c~,-, , 9, or . - .
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| 'Pos _,.
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| Cvr
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| *.~$]E~
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| ALLIANCE SUMMER 198 6 -~~~ "*"' no. 36 QUARTERLY NEWSLETTER OF THE SEA ALLIANCE/ A NEW JERSEY COALITION WORKIN& FOR SAFE EARTH ALTERNATIVES
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| 2 / SEA Al/lance NEWS CHANGES IN RADIATION STANDARDS: Even during normal ACTION ALERT oper~tion, nuclear power plants routinely release low-level radiation. Though there is no safe dose, the NRC sets "acceptable levels." Studies of low-Although the Reagan Administration got what it wanted level radiation effects indicate allowed levels on Central America so far. the contra money will not should be lowered by a fa~tor of 10. The NRC pro-be available as soon as it was wanted and the funding poses some changes permitting up to a tenfold lar-can be stopped if a Contadora Agreement is signed by ger exposure. However, for the first time the NRC all 5 countries involved. is proposing lower levels for pregnant women, but The House voted to stop nucle~r test funds, it voted even these levels studies indicate can double the a significant cut in SDI (Star Wars) funds, it voted leukemias in children exposed in utero. Write be-to prevent spending funds for any weapons that would fore Sept. 12: Docketing & Service Branch, Secre-exceed SALT II limits, and stopped chemical arms funds. tary of the Commission, Nuclear Regulatory Commis-DC 20555. Refer to 11 10 CFR, Part
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| CHERNOBYL UPDATE The *1 ~test "'I n'format ion from the USSR lists 30 people dead, 203 people with radiation sickness, of whom 28 are hospitalized. Several thousand people have had medical checkups. Radioactive contamina-tion is reported for an area of about 1,000 square kilometers. Farmland has been taken out of pro-duction and other work suspended. Direct monetary
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| ~ost thus far has been put at $2.7 billion in direct damage. The indirect costs include round-the-clock work to entomb the ruptured 4th reactor in concrete, decontaminate the station, protect water supplies and build entire new towns. Some 112,000 people have been evacuated from contamin-ated areas; some 310,000 children have been sent to summer camps. Tunneling under the reactor and laying a concrete "cushion" has been completed. A protective concrete barrier is being built by spec-ial remote-control bulldozers and cranes in areas still considered too dangerous for people. The concrete shell entombment will then be constructed.
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| Problems with soil and water contamination are massive.
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| nl Dr. John Gofman, physicist, physician, and per-haps the world's leading authority on radiation, was asked to estimate Chernobyl casualities. His preliminary, minimal figures (including only the Ukraine in the USSR) are 357,655 fatal cancers, 357,655 non-fatal cancers, and 14,710 s for a "grand" total of 730,020 cancers mi s~ These figures would need to be ed upward, especially with more USSR data.
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| Dorothy Cinqueman1
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| near na an commun, ,es ana western towns orownig found that can guarantee permanent isolation rom their deadly gases for the full lifetime of the the biosphere for the requisite time period, ten uranium-238 (billions of years) and leaching into to twenty ha lf-1 i ves of the l ongest-.1,.i ved
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| * rij,dio-rive~s used for drinking water. These tailings i sotopec0-or up to half a million years ! In fact are the single largest source of radioactivity in it is arguable that no solution will ever exist; the entire nuclear fuel cycle. When the deaths the government's own criteria for waste disposal from this one source are calculated and extrapolat- (for anything short of permanent isolation is ed into the future. the number of cancer fatalities merely interim handling) will stop at 1,000 years eventually will reach one million per year. and those born after that be damned. Despite After enrichment, the fuel is fabricated into official assertions that a "solution" will be rods and packed into a reactor. If it happens to found, these can be dismissed out-of-hand, since*
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| be a military one, it is showered with neutrons none of us- or them - -will be around to find ou\
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| which are absorbed by the uranium which evenutally whether it is true or false.
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| convert it into plutonium-239. Plutonium, whose half-life is 24,400 years, is a transuranic alpha- RAVAGES OF RADIOACTIVITY emitter which gives off non-penetrating particles. What connects nuclear power and nuclear weap9ns, When inhaled or ingested, these particles condemn in the end, is radioactivity, those dangerous the victim to eventual lung cancer. In solid form pulses of energy and particles that irrevocably the heavy metal is not very radioactive and can be and obscenely twist our cells and genes and sub-handled, but as plutonium oxide, a fine powder, it vert our body processes unforgivingly. Invisible is deadly. and undetectable, it is entering the biosphere in more ways than Madame Curie ever imagined - not NUCLEAR WASTE staying deep underground where it can spend itself After fuel is used in a reactor, it eventually without human impact, but being created by humans becomes so contaminated with fission products and in more and more "toys."
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| other transuranics that it must be replaced. It Short of an all-out nuclear war, nuclear reactor<
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| is then removed and stored under water to keep it present more of a threat to public health than a cool enough to prevent further criticality. Most single nuclear weapon, based on the fission pro-military wastes are stored at the Hanford, Hash. duct content. Large 1000 megawatt reactors contai 1 reservation, and stored very badly. High level the equivalent in radioactivity of a thousand or wastes have leaked there and have also been inten- more Hiroshima-size bombs; the cesium-137 - ent tionally dumped into the ground which overlies the in the Chernobyl accident was nearly 2000 Columbia River watershed. The most famous leak of higher and has already been detected in a 400,000 gallons of high-lev~l wastes conta~ning flesh in western Europe, moving from soil to rass fission products and plutonium took place ,n the cut for hay to animals to humans in an uninter-
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| upted chain of poison. Its 32-year half-life SEA' Alliance NEWS/ 5 eans that it will take 600 years before Chernobyl
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| 'al lout disappears. These radiation hazards are real. They are Ultimately, the most significant connection be- killing people right now. In this sense, they ween nuclear power and weapons for activists is are more serious than nuclear weapons, simply he political one. The same attitudes, values, because the use of nuclear weapons is potential, orld view, objectives and strategies motivate not actual. Hhile it is true that the uranium, those who promote nuclear power and weapons, for fuel fabrication and wastes , 1nvolved in pro-
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| ~ach concentrates and solidifies the control of the ducing nuclear weapons are actual hazards, the scientific and military elite. Each has its own end product of the nuclea~ explosion has not yet apologists who point fingers at each other.to occurred. But nuclear reac~ors are operating and confuse and deceive those who might detect that in so doing present an ongoing daily hazard. Even both emperors are naked. Thus, presfinious nuclear if notone nuclear bomb is ever exploded, we will physicists wax almost radical in proclaiming their be burdened with the tragic legacy of cancer, dedication to peace but let public health fall by leukemia, genetic defects and shortened life-span the wayside, as they declare their own work to be from the radioactivity created and released by absolutely risk-free. Indeed, Alvin Weinberg was commercial reactors.
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| often seen as an iconoclast because he persisted, The poison of radioactivity has no ~ure but to the discomfort of the nuclear power establish- prevention at its source: the banning of uranium ment, in saying publicly that "nuclear power is mining and fuel cycle operation. A meaningful very dangerous" (his solution was not to ban it pol1t1cal agenda must equate peace and public but_to createa nuclear priesthood to protect us). health, not selecting one preferentially.
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| Life on earth was not possible early in the earth's history because of high radiation levels. --Lorna Salzman, former NY On. ction of these levels ~llowed life to representative of Friends of the Earth, and now ev an orderly manner. But now the nuclear a member of the ~y Green Party coordinating coun-est ment is reversing this trend. In a cil. She is a long time anti-nuclear activist distinctly counter-evolutionary manner, lt is and writer. She is presently working on a book -
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| creating more and more artificial sources of "America the Green; Post Environmental Politics."
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| radioactivity and allowing its dispersal into the environment and into human beings. Contrary to traditional policies of reducing public exposure to radioactivity as hazards became more well known, the government and pro-nuclear scientists are now proposing to increase per-missible exposures to facilitate an expanding and Book Review unimpeded nuclear industry. This continual Tactics and Strategies for the Peace Movement:
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| production and release of radioactivity - from Where do we QO from here?
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| operating reactors, waste handling, transport This is a recent publication by the A.J. Muste and storage, medical and research uses, food Institute which presents the responses to a series irradiation sources, smoke. detectors (all of provocative questions distributed to prominent added on to background and naturally occurring activists, theoreticians, writers and organizers sources) is intended to assure that uses of the in today's social protest movements. They include atom are unimpeded by considerations of public pacifists and non-pacifists, socialists, Democrats, health. Few people are aware that the Atomic feminists and anarchists. The project was con-Energy Act actually puts the development of ceived and edited by Marty Jezer, writer and peace n- c r power ahead of pub 1i c hea 1th and activist since the sixties and now working with s and_that citizens must accustom them-s *o l1v1ng 1n an environment of greater the anti-inte-rvention movement and the Rainbow an eater radiological risk. Coalition. Mr. Jezer is concerned that the move-ment is "ideologically shallow and politically soft." He points out that many controversies sti 11 exist. "Many who favor a nuclear freeze, for example, also support the build-up of con-IONIZING RADIATION ventional weapons, and fear of nuclear war does not always translate into opposition to Latin American intervention." He also states that
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| __ many activists attach their own political mess-ages to the movement as if "nuclear war cannot t'J~i~- be averted unless we first have socialism, fem-inism, decentralism, etc."
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| -l!ll'Nn;<
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| .... ';... .: .~ The 35 responses to the question asked express
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| ~'!'l~J[..~~ .. a gen~ral consensus in one area. The peace move-
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| -:*. -* --:-. -::-: . 7 1!_'!}_[ ment has much work to do in order gain the con-
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| :~: ~~:
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| fidence and support of 1'mainstream" society. The present movement still seems to many to be a sub-culture *to which one clearly does or does not belong.
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| This booklet is designed to stimulate discussion
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| :ithin organizations, networks and study groups.
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| The answer to where we go from here can only be decided through open minded debate, leading to
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| . ,,., ,,...... .__, _"-~--~
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| "7____
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| L. .............. ......... ..
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| political action." This debate should involve everyone for its outcome is our future
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| * This booklet is available for $3 from A,J.Muste Memorial Institute, 339 Lafayette St. N.Y. NY 10012. ' * *
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| ------------~--------~--...J----------~----~---- --Laura McCluskey
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| 6 / SEA Alliance NEWS Nuclear Nuggets NJ FIRST TO BLOW?
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| New Jersey forges into first position as the most HIGH INTEGRITY CONTAINER? dangerous nuclear power area with the commissioning The new low level waste regulations, adopted by of the Hope Creek #1 boiling-water reactor at Salem.
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| the Muclear Regulatory Commission (NRC) in 1981, This area will soon contain the record quantity of are full of holes. deadly radioactive waste, stored in concrete'~wim-Well, at least the containers are. Under NRC ming poolsuin shifting soil on Artificial Island.
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| regulations, 10 CFR 61, containers must isolate Like the ill-starred trio of TVA plants at Brown's waste for 300 years. They must also withstand Ferry, which have been mysteriously out of service stress and pressure during handling and burial, for over a year, New Jersey now has the distinction resist chemical and radioactive attack, and of being the world's largest nuclear power station be completely sealed to prevent loss of contents. as well as the most dangerous complex.
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| In general, these high integrity containers (HIC) The Sandia National Lab study done quietly for are made of plastic reinforced by fiberglass. NRC in 1983 gave the ghastly consequences should During transport, because of the penetrating gamma a worst-case accident occu~ with various nukes.
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| radiation, HIC's fit within a lead-shielded over- Salem led the list with 100,000 prompt deaths and pack or cask. property damage of $200 billion. Like the con-But internal gas generation has caused the HIC's troversial Shoreham nuke on Long Island, an* *-
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| to hiccup, or bulge, and become stuck in the trans- dent at Salem would make drinking water con port cask. The cause of gas generation, which inated for centuries and much industrial an would eventualy lead to rupture of the HIC, is idential property uninhabitable for 20 years.
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| unknown. Rather than elimtnate the cause of gas --Nuclear Hazards, 4/ 86 buildup, the NRC now requires a ventilation system, or hole, to allow gases to escape.
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| Let's see if we have this right. The 300 year HIC container is designed with a hole in it.
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| Sti 11 called "high integrity" though. ISPLIT NOT ATOMS WOOD I
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| --Sierra Club l~aste Paper, Spring '86 GOOD NEWS FROM WALL STREET The Fahnestock Letter, issued by the Wall Street investment firm. of the same name, had good news for anti-nuclear* activists in its letter of June 2, 1986. A report on the Chernobyl disaster cauti ons against the claims by the pro,nuclear experts in the U.S. that 'it can't happen here.'
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| The following advice to their investors meets with our approval.
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| * DIVIDEND CASUALTIES General Public Utilities has paid no divid since 1979, the year of the Three Mile Island GLOW DOUGH accident. Since then investors have seen their dividends slashed, or entirely omitted, by ten At the Chernoby1 nuciear power plant the men other companies:
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| who are tunneling under the crippled reactor are getting ~ouble pay for their hazardous work. But Previous Current New Yorks Daily News reports that "Glow Boys," Year Dividend Dividend as these men are called, are also convnon in the Central Maine Power 1983 $1.96 $1.46 U.S. where they "take the fry" at faltering nuclear Long Island Light 1984 $2.02 Nil power plants nationwide. "Taking the fry" means P.S. of New Hampshire 1984 $2. 12 Nil absorbing radiation. *Kansas G. &E. 1984 $2.36 $1. 18 A typical base rate for these US 1vorkers is P.S. of Indiana 1984 $2.88 $1.00
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| $10/hour and, while they can only work for about (omitted entirely in 1986) ten minutes because of the intense radiation, Consumers Power 1984 $2.52 Nil they are paid for 12 hours of work. They are Middle South Utilities 1985 $1.80 Nil often eligible for bonuses for "burning out," No. Indiana P. S. 1986 $1.56 Nil getting the maximum permissible radiation dose. Duquesne Light 1986 $2.06 $1.20 One company that dispatches "glow boys" around Gulf States Utilities 1986 $1.64 $1.04 the nation is the Atlantic Group of Norfolk, VA.
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| This single company does $15 million worth of In every case cited above, the dividend delin-business annually. Most repairs involve corrosion quencies were directly related to ' nuclear problems.
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| or leaking water pipes. The last two companies, Duquesne Light and Gulf One "glow boy" commenting on the security checks States Utilities, reduced their payouts effective needed for the job said, "They don't want nuts cut- in the current (June) quarter, a good indication ting up in the reactor. Y9u have to be a little that the days of painful dividend surgery are not weird to do this job. You just can't be too weird." over. And while there are a number 6f well-m,naged comp~nje~ we are cautioning the prudent investor
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| --The Non-Violent Activist July/Aug 86 to restrict his funds to non-nuclear companies.
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| SEA Alliance NEWS/ 7 New Jersey Containment Crisis In the wake of the Chernobyl accident the nuclear gressman John Dingell (MI), chairman of the In-indust ry wa s qu i ck to pinpoint the major flaw in the vestigation and Oversight Committee of the House Soviet r eactor - no containment structure . Later Energy and Commerce Committee to investigate the we learned t hat Che rnobyl actually had two con- GE Mark l containment design. Activists in Mon-tainment st r uctu res , both of which failed. Still roe County, MI - home of the Fermi 2 reactor -
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| later we learn th at 24 U.S. plants have contain- have prevailed upon the i r County Board of Com-ments of almost i de nt i cal des i gn; the Mark l con- missioners to make such a request of John Dinge*ll t ai nment made by Ge neral Electric. Four of these who is their representative.
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| * should be of great concern to New Jersey residents: With four Mark l containments, within or ad-Hope Cr eek l , Salem, NJ joining our state, do we dare remain silent?
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| Oyster Creek , Toms Ri ve r, NJ Peach Bottom 2 and 3, Peach Bottom, PA (c lose to NJ border)
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| ~J hat does the Nucle ar Regulatory Commission thin k of these containme nts? In 1972, Dr. Stephen W
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| er, Atomic Energy Comm i ssion Safety Advisor mended banning GenJ ral Electric's design.
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| did not ha ppen because Dr. Joseph Hendrie later became chai rman of t he NRC) said, "This could well be the end of nuclear po~11:!r. It would throw into questio n t he continued operation of l i censed plants . . . and would generally create more turmoil than I can stand t o think about."
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| Harold Denton , Di recto r of the NRC office of Nu-c lear Rea~tor Reg ulati ons had this to say in 1986, "I don't have the same wa rm feeli ng about GE con-tainments that I do abou t larger dry containments **
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| There has been a lot of work done on those con-tainments , but Mark l containmen t s, especially being smaller with l ower design pressure - and in spite of the suppress i on poo l - if you look (at t he) WASH (l400)reg sa fety s tudy, you will find something like a 90% pr obability of that con-t ainme nt failin.9 ."
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| WHAT TO DO al l or write yo ur congr ess person requesting that
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| ~ use personal' i nf luence to persuade Con-GENERAL ELECTRIC BOYCOTT 6oyco tt General Electric until GE agrees to sto p produ ci ng and promoting nuclear wea pons that threaten the surviva l of the hum a n race.
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| I hese a re ,o me of GE's major products : APPLIANCES ELECTRONICS (GE & Hotp oint labe ls)
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| LIGHT ING Co lo r Te lev isio ns Microwave Ovens VC Rs Li ght Bulbs Elect ric Ra nges Vid eo Ca meras Ex te ns io n Cord s Gas Ranges Com pact Di sc Pl ayers Electric Lamp s Batteries Refrigerato rs A M
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| * FM Radi os He adlights for cars F reeze rs Ca ssett e Reco rde rs Fl as h Bulbs Was hers C B Rad ios D rye rs D igi ta l C locks CONST R UCT IO N Te le ph ones Dis hwas her; Wirin g Pho ne A nswe ring Mac hines Dis posers Co nt ro ls Te le ph o ne Accessories T rash Co mpacto rs S witches Motors A ir Co nditi oners SERVICES INFACT Ca ul kin g De humid ifi ers G E C redit C orp. 186 Linco ln Street. Roo m 203 Heat P umps G E In fo rm atio n Servicek Bosto n. MA 02 111 (617)338-6 10 1
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| ... a nd a ny other product that ca rries the G E or Hotpoi nt label.
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| 8 / SEA Allfance NEWS USA's Russian Roulette assurances that there was no meltdown during the .
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| Aside from the environ~ental and economic impact accident. Partial meltdown did occur and there 1s of nuclear weapons, ther~ qre many ways in which we strong evidence that transuranic elemen t s, i n-are affected by the nuclear industry, including: cluding plutonium, escaped into the atmosphere.
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| - nuclear reactor accident risk and liability They admitted the temperature reached 5, l00° F.
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| (as a homeowner you can't get nuclear insurance) An NRC Commissioner had *stated at the time of the accident that if the temperature had approached
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| - new reactor licensing "reform" ( to speed up 2, 1Q0°F it would have been mandatory to evacuate procedures and further limit the public's Harrisburg. Did the USSR cover up more about
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| ,participation)
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| Chernobyl?
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| - radioactive waste accident liability (lacking now, but of course needed)
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| MAJOR U.S. ACCIDENTS
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| - changes in radiation standards ("acceptable" Seven years after the TMI accident (1979), the exposure levels may be raised,when they need to Bechtel Group subsidiary with a $1.2 billion con-be lowered by a factor of 10) tract (plus cost overruns) for the "cleanup" had
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| - food irradiation contaminated over 600 workers and removed only 36,000 pounds of highly radioactive material. The remainihg 308,000 pounds is kept in the reac.
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| See ACTION ALERT, Page 2 chamber, under 20 . feet of chemically treated The Chernobyl accident alerted many people to nu-
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| * ant water, because of its pot~ntial to melt clear reactor and radiation dangers, but numerou~ If it did melt down, at the least the entire East-implications of the accident were ignored or mini- ern seaboard would be at risk of contamination.
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| mized by most of the media. ~le were initially Last year, at the Davis-Besse reactor near misinformed that "it couldn't happen here" because Toledo, Ohio, the pump on the main feedwater system "aTI our reactors have containment buildings and of a reactor failed. The reactor began to overhect.
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| Chernobyl did not." The auxiliary pump failed. A valve stuck, so To produce weapons grade plutonium, the Depart- needed cooling water drained away. And 11 other ment of Energy (DOE) operates nuclear reactors pieces of equipment also failed. An *operator without containment buildings. A DOE spokesperson punched the wrong button. That stuc k valve was told the Udall House Interior Committee on April 29 the same type valve that jammed at TMI 2. At 1986, three days after the -Chernobyl accident, least this time, an operator had learned enough that U.S. plutonium reactors don't need containment from TM! to close the valve quickly. A similar buildings because the chances of an accident are accident occurred at the Rancho Seco reactor at too remote. The Deputy Minister of USSR Power and Sacramento, CA in December, 1985. These are just Electrification, before the Chernobyl accident, two of the 8 Babcock & Wilcox reactors with oper-stated that the probability of a nuclear accident ating licenses. Few or none of the 8 has com-amounted to once in a million years and even then pleted all the long-term modifications ordered the radiation released would not exceed permissible by the NRG 7 years ago.
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| levels. Closer to home, Salem 1, opera t ed by Public The Nuclear Regulatory Commission (NRG) now Service Electric & Gas (PSE&G), experie nced th-believes the Chernobyl plant had two containments, total failure of an automatic shutdown mechan one designed to withstand 27 pounds per square inch twice in incidents 3 days apart, February 198 (psi) and the other 57 psi. Chernobyl also had As the first incide~t was misdiagnosed, the cor huge "pressure suppression" pools of water to con- trol was not repaired. The second time, luckily dense steam and reduce stress on the containment the operator quickly realized what had happened walls. and manually dropped the safety rods that choke off the nuclear reaction. Risk assessment pre-U.S. NUCLEAR REACTOR CONTAINMENTS dicted this type of problem would occur once in Almost half (49) of all U.S. nuclear power reac- 33,000 reactor years, but it happened twice .within tors have pressure suppression containments. All 3 daysl Former NRG nuclear safety engineer now these General Electric and Westinghouse contain- with the UCS, Robert Pollard, observed, "If the ments are designed to withstand less force than Salem plant had been operating at full power, were the Chernobyl containments. Shoreham is rather than 12%, an extremely serious accident designed to withstand only 48 psi, while . the older might have resulted." Indeed, in 1983 these Westinghouse pressurized reactors are built to incidents were characterized as perhaps the most withstand just 12 psi. serious since TMI.
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| Most U.S. containments without pressure sup-pression are designed to withstand from 55 to 65 psi. Jhree Mile Island (TMI) 2 had a small hydro-gen explosion of 29 psi. The NRC Rogovin Com-mission on TMI concluded that there would have been a complete meltdown had the stuc~ valve . re-mained open another 30-60 minutes. This crucial valve was closed only because "No one could think of anything else to do," a reactor operator told the Rogovin Commission.
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| In 1984, TMI's owner pleaded guilty or no contest in Federal District Court to 7 criminal charges of falsification of data on leaks of radioactive material. They also admitted the falsity of their
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| 1ne circuit-breakers in the automatic system SEA Alliance NEWS/ *s .
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| were identical and unreliable because of a long series of disquieting errors. PSE&G said it never received a maintenance bulletin sent by the manufacturer in 1973. The circuit-breakers were never lubricated for 10 years. Then in Jan-uary, 1983, they were lubricated, but with the wrong kind of oil. At the next two emergencies, both circuit-breakers jammed. This "scram" system is one of the most vital high-level safety features in a nuclear plant and yet its critical circuit-breakers were so mistreated. It is believed that if the operator had not quickly intervened manually, in spite of operating at only 12% power, another 90 seconds could have caused a rupture of containment with major release of radioactivity.
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| WORST-CASE SCENARIO Furthermore, a study by the Sandia National laboratory estimated that a major radioactive release at either Salem plant would result in 100 1 000 fatalities in the first year alone and property damage of $200 billion. An accident at Salem would contaminate drinking water for ies and make industrial and residential uninhabitable for 20 years. Now PSE&G ces that the addition of the Hope Creek or will make that complex the largest pro- NRC'S ROLE ducer of commercial nuclear energy in the U.S.A.
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| -with an output of 3,300 megawatts.
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| Salem l and 2 had already been cited 3 times At recent Energy Conservation and Power Subcom-among the worst U.S. nuclear power reactors in mittee hearings, Commissioner James Asselstine said each of the annual evaluations up to 1983 (along "Management is the fundamenta 1 aspect of safety.
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| with NJ's other nuclear power reactor, Oyster There is a wide diversity in management performance Creek, one of the oldest in the US and thus ex- among the plants and we don't regulate management ceedingly contaminated). very well." The then NRC Chairman, Nunzio Palla-Oyster Creek was still listed among the 17 dino, cited a "recalcitrant" attitude and a "bit nuclear plants with the worst safety records in of arrogance" toward safety improvements by some May, 1986. In 1983, PSE&G was severely criti- utility executives. Chairman Edward Markey cized by the NRC for mishand1ing both safety and characterized the NRC report as "a stinging indict-maintenance procedures at Salem 1 and 2. Now ment of the nuclear industry's ability to safely with Hope Creek going on line requiring additional operate nuclear reactors." He also expressed specialized personnel, PSE&G's other plants, Salem concern that the NRC was cuttiQg back on regulation 1 and 2 have been removed from the worst reactor of the nuclear industry amid continuing safety list! problems. Commissioner Asselstine, a lone dissident voice on the NRC said, "A review of recent studies REACTORS IN OTHER STATES THREATEN N.J. of U.S. nuclear power plants demonstrates that the Commission's new-found philosophy of safety com-
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| - eral plants located outside NJ could have placency is inconsistent not only wjth the advice
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| ~ trophic effects on residents of NJ and at of the President's Commission on the Three Mile least 7 nearby states. Ors. Frank von Hippel and Island Accident, but also with lessons learned from Jan Beyea estimated that a total core meltdown at Chernobyl."
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| TMI 1 (now on line) could cause up to 60,000 NRC safety analyses indicate that there is a 4S%
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| delayed cancer deaths in the area beyond a SO-mile chance of a core meltdown in the next 20 years, and radius. They did not estimate the much larger a 12% chance of two core meltdowns. Consider the number of delayed cancer deaths within the SO-mile record of U.S. nuclear reactors:
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| radius, nor the immediate deaths. - poor training of personnel Peach Bottom, PA, near the NJ border, has two - poor management operating reactors of the faulty GE Mark I design. - poor maintenance The NRC believes these GE reactors are the most - poor security against terrorists vulnerable to containment rupture. They are on Is your own safety sufficiently at risk to galvan-the current list of worst "problem" plants which is ize y~u into acti _on? _Rea<;tors must be s.tiut down.
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| based primarily on management, not on faulty design. But first you must Join with others in stopping They are the only 2 plants on the current list legislative efforts to relax industry abuses.
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| still operating. See ACTION ALERT, Page 2.
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| Indian Point (IP) reactors l, 2, and 3, in Buch- --Dorothy Cinquemani anan, NY, are within 60 miles of all or parts of 7 NJ counties. Robert Ryan, NRC Director of State Programs said "I think it is insane to have a three unit reactor on , the Hudson Kiver ... if vou describe that SO-mile circle, _,You've _got 21 mif1ion people, CHERNOBYL RADIATION Anc1 that's cr~zy." TherP. have been many serious A recent report suggests that more radiation problems at Indian' Point. For instance, December was released at the Chernobyl nuclear power 28, 1984, IP 2 started up with all 3 safety in- plant than by the Hiroshima atomic bomb:
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| jection pumps disabled. These pumps, a major part of the emergency cooling system, were blocked. \
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| On that occasion, the problem was discovered in time.I
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| . i 1O / SEA Al/lance NEVIS
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| 'l have a dream" The editorial of the Sierra Club lfoste Paper I have a dream.
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| (Spring 1986) is reprinted here because it serves That the U.S. government demonstrates as much to highlight our convnon destiny on this fragile concern for the victims of the 66 U.S. atmospheric planet and suggests "Safe Earth Alternatives" tests conducted in the Marshall Islands in the in our thinking and practice. South Pacific between 1946 and 1958, as it is cur-
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| "I HAVE A DREAM" rently manifesting towards the victims in the This editorial is dedicated to Martin Luther Ukraine.
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| King who delivered his "I have a dream" speech . That no one, right or left,experienced a sigh of in 1963 at the Washington monument in Washington relief when the radioactive cloud turned away from D.C. Europe and headed in the direction of the "enemy" I have a dream,. Russia. '
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| That no one takes the meltdown of the reactor That worldwide there is a renaissance in the at Chernobyl as an excuse to heat up the cold war sentiment of compassion. That anarchists, capit-by launching tirades against the Soviet government alists, conservatives, centrists, socialists, and for its lack of respect for human life. Yes, ~ommunists, th~t people of all political complex-we agree that is was unconscionable for the Soviets ions, alike grieve for those who have died, for to fail to notify promptly affected countries of those given sentences of leukemia, bone marrow the accident. Yes, the Soviets deserve to be sev- cancer and birth defects in future years and decad.
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| erely criticized for any withholding of infor- for th~se faced with the economic and psychologic mation during this international tragedy. But hardship of contaminated farm land, ruined home-before we wax too wroth, does any country ~,hich steads and forced relocations, for those confront-has tested nuclear weapons in the atmosphere, ing permane11t, awesome uncertainties-will the Kiev spewing radioactive debris across the fragile water supply ever again be "safe" to drink?
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| planet, have superiority in the realm of sharing I have a dream.
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| information or respecting life? That the President of the U.S. gives an executive I h4ve a dream. order to shut down, within three months, all That the employee at Brookhaven National Lab- nuclear power plants and all nuclear weapons facil-oratory who on CBS television on Tues. April 29 ities operating in the U.S. and an order to ban stated there was only a small amount of radio- immediately, any further export of nuclear tech~
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| activity inside a nuclear reactor core pyblicly nology. And that the President calls upon Congress recants and tells the truth: there are millions to transfer the entire military budget (excluding of curies of radioactivity inside a nuclear reactor pensions) to the implementation of a radical energy
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| - one reactor at Chernobyl contains the radio- conservation program across the land with a crash logical equivalent of 100 Hiroshima bombs. program on conservation retrofits, co-generation That all the employees of U.S. Dept. of Energy, facilities, recycling, electric cars, mass transit, the NRC, the Atomic Industrial Forum, members of methane gas production, solar, wind and small hydro Congress, staff at Westinghouse, General Electric plants, this implementation to include an intensive and Bechtel, that anyone who has ever lied about job retraining program for all employees affected nuclear power anywhere, anytime, steps forward by the dismantling of the military-industrial com-and recants publicly. plex.
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| I have a dream. I have a dream.
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| * That television commentators become rigorously That extreme nationalism goes ou\ of style, that impeccable in their presentation of the facts re- the definition of anybody as an "enemy" ceases garding nuclear accidents and do not allow experts including both nuclear utility corporate executive~
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| to coddle the American public with false assurance~ ma1igned by anti-n-ukes or Russian communist "devils" Why was an expert from Harvard University.inter- targeted in the press, that institutionalized viewed on the MacNeil/Lehrer program after the state killing becomes as abhorrent as the concept accident allowed to get away with the statement of individual murder, that the bombing of an 18-that be.cause of the containment vessels present month old baby anywhere, including Libya, is an in U.S. reactors in the event of a major accident occasion for national mournina.
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| none of the radioactivity inside the core would I have a dream * .
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| * that a 11 life is sacred.
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| be released to the environment? This statement gives a false assurance. A containment vessel provides some time for evacuation of workers and --Mina Hamilton, former dir-surrounding populations, but, in the event of a ector of the Sierra Club meltdown, the molten fuel will *eat through any Waste Campaign
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| * containment structure.
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| . I IT SoUMOS 6ooD, BIJT 1't: SoVletS 1\\EW IT~ CM OF I WQUU> NE'Jl:Q 1612EE 1b IT ~ Q\JESfla-1 .
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| \
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| ~ SEP -3 A10 :24 Route 2, Box 84A Apex, NC .2.1 5,02 L
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| * _ A "
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| 0f~ 1Ct Or :. t.., . . ~~,. K, DOCKETIN G & Sr P' I Cf .
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| Augus t 28, 196~ANCH Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 ATTN: Docketing and Service Branch Comments on Proposed Changes to Regulations Governing Citizen Participation in Licensing Hearings
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| ==Dear Sirs:==
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| I am opposed to th~proposed revi~ions to 10 CFR Part 2 which were pub l i s hed in the July 3~ 1986, F-ederal Register , I have been an intervener acting on my own behalf in the operating license procedure for the Shearon Harris nuclear power plant (Docket #50-400 OL) and it has been my experience that the administrative and technical burden already required of anyone hoping to act as an intervenor are tremendous. T~e effect of ~he changes provosed for Sections 2.714 , 2.720, 2.743, 2.749 and 2 , 762 would be, in my opinion, to make licensing hear i n gs totally inaccessible to any citizen who does not have tremendous financial re-sources and unlimited time to bring to bear on this process ,
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| The purpose of allowing citizen participation in the licensing process is to allow citizens whose interests are- affected by the operation of the power plant to voice their concerns* and force the Commis*sion, the staff and the Applicant to address issues which they might otherwise overlook .either because of financial reasons or because the issue raised is not one that has been previously thought to be significant .
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| There is no evidence of citizen intervention has added significantly to the time or cost of licensing a power plant directly ; It has added both time and money because it has raised many significant issues which would have otherwise gone unnoticed. Those issues hay-e f:/J! to legislation and rule making which hf- s made nuclear powe r plants s-afer , In t he cas*e of Shearon Harri s , for example r the generic issue of whether the specifications for the siren system are adequate for nightime alerting in the summer has been brought to your attention and,as a result, I presume that the safety of the public will be enhanced, Several other i ssues have been r a ised and the Applicants have compromi s ed, also enhanc i ng the s afety, Many issues have been dealt witrPfthe Applicants in much greater detail than they would have if they had not facea."citizen opposition, Many further issues raised by intervencrs such as myself were not pursued because of the lack of finances and time but could also have enhanced the safety of the power plants, Acknowledged by card .*** ~~~.~..
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| a, "'1dtA<< CUt.ATO.V t'OMMf!l!IIOM IOcKETING & SERVICE SECTION GFPICF OF HE SECRET ARY fH F rn~* If * ., I I
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| : r. ?/2?/f0 I
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| ~ad' f CC" cµ, .. , ce~ ,,,,
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| ~ Ofilfibufien
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| Pag_e 2 Therefore, I repeat that as an experienced intervenOr, I found the process tremendously burdensome in terms of administrative duties and financial resources and I believe that the proposed changes mentioned above would make the process even more inaccessible than it is now, Sincerely, Richard D. Wilson RDW:bgp
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| :::::PR-k Jame s L.Pickering Ul rJ, ,,,t4J6s) @
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| DOCKETED USNRC
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| '86 SEP - 3 A10 :34 v.J . r uclear egu atory Co"'11li,3ion OFF ICE OF : ~l,I L ~.G.R y
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| ,i a shington, D. C DOCKET ING & StflVIC f.
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| BRANC l-l LJear Commiss i on Me11oer, 8-2.9-86 I ha\e thi.~ date recei*.-ec ~ "'U"'111ation of your proposed rule change s and am s ubmitting the following comment s in oppo s ition.
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| Sect ~ -714.I am oppo s ed to rai s ing the threshold for ad-
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| * missability of contentions under thi s s ec tion . ie have nroceeded far too recle ss ly afield in the nuclear field witho ut re aly know-ing the potential aftereff ect s .Rai s ing the thres old would f ree ze s ubject matted to that whic h is known and leave the unknown to future generations to deal with the a*Lter effects .Having just finished four months of hearings in Hew York State I can factually state that much pertinent information is brought to lite by the hearing process simply because the testators will not come for-ward except befor a judicial forum.This information otherwise becomes lost and may well forstall advancement of public knowkedge on the subject for many years and delay corrective act-ivity beyond the threshold of safety consiferat~ons.Faults ,errors and ommissions are best corrected early in mitigation of the after effects that you are charged with preventing through regulation.
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| Section 2.720 In like manner the suppresion of discovery anddisclosure under the proposed reviiions of this section severely limits the ability of the taxpaying public to participate in and effectively ex~rcise control of a government that they are forced to support by taxation and found necessary to establish for their
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| 3 U.S. NUdW lliGUtAf6~ ~OMMf ~SION DOCKETING & SERVI CE SECT ION OFFICE OF THE SECRET t ~y OF TW r ri Post Copi Add' I Copi ~
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| ISpeciaf Oistributian
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| own protection Section 2.74J.At the hearing afor mentioned in New York cross examination brought out thr fact that monitoring wells were improperly installed,accidentially miffled to the extent that readings obtained were not factual as to conditions to be monitored and test samples taken were improperly extracted and stored pror to analysis for too long a period to be of any value.In order for the commision to have befor it as complete a record as possible it is vitally necessary to retain crosse examination freedom for all parties.Opposition to the propo sed
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| * change is therfore mandatory.
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| Section 2.749 The proposed rule change creates ha~oc with an orderly hearing and impaires the rights of all litigants as well as stifling the publics acquisition of knowledge that is pertinant to its survival.The rule change proposed must not be allowed and opposition therto is expressly stated here.
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| Section 2 .762.The proposed rule change substantially abridges the rights already existing to all parties to protect all their interests whether know at commencement of the hearing
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| * or not.This rule change should not be a~lowe d .
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| i1he commission is urged to disallow. all of the rule change proposals as struc turally they~embody a concept of law that suspends the Constmtution of the United States and the principles protected by it.
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| My opposition to these rule change s is submitted with deep regret that it was neces s ary to express adversarial po s ture to protect the Constitution from those who aee bound by their oath of office 7
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| to defend it. L-,~ - / . / ? 7 - ~
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| DOCK[lE C August 30, 1986 U5 NflC 854 Henley Place Charlotte, NC 2820~ SEP _ AlO :Sl Secretary of the Commission 3 U.S. Nuclear Regulatory Commission Washington, DC 20555 OFF ICE OF .,c t.,,,t. IAKY DOCKETING & SFRVICf.
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| Attention: Docketing and Service BrancnRANCH These comments in regard to rules changes in the licensing process proposed by the NRC.
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| As the representative of the Carolina Environmental Study Group in the McGuire and Catawba CP and OL proceedings I am familiar with the intervention process. I favor, as a minimum, the retention of the present rules. Althgough CESG did not succceed in its objective of denying CP's for these plants, it is my belief that participation in the intervention process resulted in some benefits to the public. Although the Hearing Boards found in favor of only one CESG contention, there appear to have been significant responses to a number of issues which CESG raised. These include:
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| The use of screens to keep debris from entering the sump pumps (McGuire).
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| The question of reactor stud bolt strength and the effect of the weak bolt (McGuire).
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| The competence of the applicant's demand forecast technique and the probable continued linear growth in peak after satuaration of the all-electric home market (McGuire).
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| The adequacy of the ice basket support structure (McGuire).
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| The combustibilty of the insulation used in an ice condenser containment (McGuire).
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| The ultimate strength of an ice condernser containment in relation to possible stresses in a hydrogen combustion or detonation event (McGuire).
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| The efficacy of the siren alert system in the EPZ for meeting FEMA requirements (Catawba).
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| The number of sensitized welds in unit-1 (Catawba).
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| Welder competence and welder supervision (Catawba).
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| The adequacy of representation of weather/demography in release accidents in the EIS (Catawba).
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| SEP 4 Acknowledged by card . **************
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| | |
| U,I. Hf.1Ct1A~ "f:CUL(fott' COMMfSStON 00cKETING & SE!lVICE SECTION QfFICE OF TH~ <;E(I'!~ ~ R.'(
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| 0C *u. co,._ 'v\ l<SiOM
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| ~ o,,:*"*m* *;;;"/fi_ 0__
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| fopi* l'.eC:eiv ed
| |
| ~
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| ~dd' I Copiei Rtprc,duced
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| /
| |
| ltpec l>istribution
| |
| | |
| The desirability of evacuation procedures for that part of Charlotte within 15 miles of the plant (Catawba).
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| The utility of a computer-run telephone alerting system providing real time messages as a component of the emergency alerting and notification provisions (Catawba)
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| * Other contentions which were, I believe, of comparable merit were rejected by boards under present rules.
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| The success, under the present rules of other intervenors in calling attention to serious problems in construction, as in Midland and Byron, and operation, as at TMI, resulting in the abandonment of poorly constructed plants and the public awareness of unsatisfactory management have been very much in the public interest *
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| * The NRC has always proceeded on the premise that there is nothing intrinsically wrong with a nuclear energy program. Based on some of its performance, one can adduce a supportive attitude toward nuclear utilities. Dr. Blix, of the IAEC makes the point, in relation to the just concluded meeting in Geneva re the Chernobyl accident, that the matter was yet to be taken up as to whether the nuclear program per se was in the public interest.
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| For many, of whom I am one, the answer is in the negative.
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| The relevance in the present instance of the foregoing is whether the proposed rule change will be perceived as promotional on the part of the NRC. If it is thus widely perceived there is the reasonable likelihood that a concerned Congress, made skeptical as to industry and agency claims as to the safety of nuclear electricity production, will insist on maintaining present procedures or further strengthen the position of intervenors. The most positive step which could be taken in this direction would be, of course, to remove the licensing boards from the agency. A resourceful Congress could, I suspect, find a means of removing license adjudicators from institutional influence and promotional taint.
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| Jesse Riley r the Ca olina Environme 1 Study Group
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| DOCKET[ ['
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| P.O. Box 207 US NRC Ottawa II 61350 Phone 433-5986 "86 SEP -3 P2 :37 August 28, 1986 OFF ICE Of S[ ,,t L ,ARY DOCKETIN G & 51:.PVl (;f.
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| Dear Commission Secreta~NCH The members of the Board of Directors of R.A.P.E.
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| would like to comment on the limiting of the role of the public in NRC licensing hearings.
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| We believe the public should have more access to information and more of a voice in licensing of
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| * of nuclear power plants, not less!
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| We do not believe that the NRC's proposed changes will improve the licensing process. Rather, we believe that they will minimize the public's role in licensing.
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| As residents of La Salle county) Illinois, we are extremely aware of problems concerning nuclear power plants. Needless to say, we do not sleep well at night, knowing that the LaSalle Station plant is one of the ten worst in the United States. We are currently petioning the NRC, of which you are most
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| * likely aware, regarding safety of the plant.
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| Our m~mbership is comprised of 1500 dues paying ditizens. We represent them, and would like you to take our op1**nions as representative of our general membership's views.
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| R=~Daphne Mitchell Member, Board of Directors, R.A.BE.
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| U.I, ..,..,...._P'< I !Oil l)O.(;l(flrlhlG & SERVICE SECTION OFFICE Of THE SECRETA.RY OF T E cnMf ':iS.!OH O:x:ument S
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| * Ii c.s Ccprc~ P. ,: ~
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| _J?k/fo I Adi:!' I Ccp, .s Special Di,tr utio n
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| JOCj[( NUl\6l"PR-~
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| cJr/?m;,5"J @
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| Bruce Campbell 614 Gretna G~uum1 E.Way Los Angeles, ~R9oo49 August 27, 1986 Secretary of the Commission 16 SEP -3 Pl2 :14 U.S. Nuclear Regulatory Commission Washington , D.C, 20555 OFF ICE GF SL '~i,t 1Ak Y ATTN: Docketing and Service Branch DOCK ETING& SERV ICF.
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| BRANU!
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| To the Nuclear Regulatory Commission:
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| At present , there exists in the NRC pro cess very limited admissions criteria for contentions. For example, the legal inter-venors in the Diablo Canyon case had about 40 sound contentions comparing some Diablo equipment problems and their safety implications to lessons learned from Three Mile Island plant equipment/safety problems . However , only a few contentions were allowed in the NRC process .
| |
| It is clear that more (not less) contentions should be admitted for NRC proceedings ; the scope of issues which can be appealed should be broadened, not narrowed, Also, generic safety issues should be able to be brought before the NRC , not just issues which are totally unique to a certain facility.
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| The NRC staff is extremely biased; if they were not, they would lose their jobs, I have seen no difference between NRC staff and utility witnesses/lawyers at NRC hearings. There needs to be more questioning of the NRC staff, while the use of discovery against the staff must be increased (not decreased). Help prevent further cover-ups!
| |
| Especially due to the highly technical nature of most NRC hearings, cross-examination needs to be increased because often there is distor-tion in figures and often the biased technical types who testify at NRC hearings cannot translate their computer-simulated graphs either
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| * into simple language or even mechanical (or in some cases, vertical ground acceleration/seismic) reality.
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| The Chernobyl disaster reminds us that we need to get as unbiased and factual information about our nuclear facilities as possible , The proposed NRC rule changes. are going in the opposite direction, There is absolutely no way that streamlined procedures with the attitude-~-
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| "get it on line no matter what the equipment problems are or what quake fault it is on" can bring greater safety to the risky and deadly nuclear reac*t or technology. The proposed rule changes are more likely to lead to a tragic meltdown in the United States, which will be the catalyst for building opposition to shutting down all nuclear reactors permanently .
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| Sincerely concerned, Bruce Campbell
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| | |
| r
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| &It
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| ~ ~U(AfOU COMMISSIOti
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| ~EtfNO & SERVICE Sl:CTIOH CfflCE OF THE SECRn .\RY OF rHE COW\ISSION C>o.ei:im.nt Slati,t i,c1
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| ,__, o.,. ~~r~
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| I i.- ll~eived
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| _, f C.~** Reproduced _ __r._ _ __
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| . . . , 01ttibutlen
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| .-ai"°:PR-,c Secretary, NRC (51 r/4 A-4.34'5) August 26, 1986 Washington, D.c. 20555 00 (.K[ T[f' Attn: Docketing & Service Branch USNHC Re: Docket #50-443-50-444oL Rule Changes, Nuclear Power Plant Licensing Procedures "86 SEP -3 All :22 I wish to comment on NRC proposals for chaJiging the rules governing licensing proceedings for nuclear power plants. I object to these changes, as they would drastically curtail the ffi_d!Cla.fid. :efil'~i -t,. ~f the public in NRC licensing hearings. I also object ~ Kt§I~~~~~'i!f-ke period allowed for comments, in view of the vital importance 't.R~se rule changes would have, if allowed.
| |
| My ma.in comment is that the NRC should.be scrapped as the safety-regu-lating agency of the commercial nuclear industry.
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| In 1979, after TMI, President carter appointed the "Kemeny Commission" of twelve to study the accident, identify causes and make recommendations.
| |
| They made 44 recommendations, 42 of which were directed at refonning the institutions involved with building, running and regulating plants.
| |
| The top culprit was the NRC itself, which they described as "a headless agency that lacks the direction and vitality needed to police the nuclear power industry on a day-to-day basis." They concluded that given the short-comings of the NRC, "an accident like Three Mile Island was eventually inevitable." They warned that "to prevent nuclear accidents as serious as TMI fundamental chan es will be necessa in the or aniza.tion rocedures, and practices - and above all - in the attitudes of the NRC **** " orig.emphasis)
| |
| The Kemeny Commission recommended abolishing the NRC and replacing it with a single Drector of Nuclear Regulation - one person, with single respon-sibility for decisions. Other recommendations, no plants be located near l arge urban centers, workable emergency-response and evacuation plans be in pl ace. Their main concern: that preoccupati on with safety equi pment over the vulnerable human el ement in running these plants was the most serious mindset besetting the industry.
| |
| At the time, everyone hailed the Kemeny report and its recommendations as a giant step forward in re-establishing public confidence in the industry and i ts regul ator. Unfortunately, the congress and its committeesrave all owed the NRC to slip backward with giant steps. The same old pre-TMI attitudes are surfacing again at the NRC and the public is again without protection or recourse from the hazards of a desperate dinosaur of an industry doomed to extinction from the fallout of the Chernobyl disaster.
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| These proposals for rule changes are but an excuse to forge ahead and indulgeour nuclear moguls. This NRA arrogant, I?Ublic-be-da.mned attitude has plagued our nucl ear regulatory agencies since their inception in 1946.
| |
| Forty years of deception is the history of the NRC1 it's time for a change.
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| Thank you for the opportunity to comment.
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| Yours truly,
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| ~O Q o (5-- , ~
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| Natal ea G. Brown 339 High Street Newburyport, Ma. 01950
| |
| | |
| S .r..
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| li~t. MJCLEAR -Rt<~lil .-.ron C'OMMISSIOB:
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| .OOCKETING .~ S~~VtC'E SECTION
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| *. OFfV~f CF Thi. SECRETARY. ,
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| | |
| 7 M llriGUl'.ATOff COMM1SSION TING & SERVICE s{cr ICE OF TH F c;r-rR rTA Y F ff V "J
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| * Re ibuli n
| |
| | |
| OOCK[TE .
| |
| USNHC 0
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| 86 SEP -3 AlO :27 OFF ICE OF St1_.Rt_ fA R DOC KET ING & SERV ICf.
| |
| BRANCH 71 Pinewood Road Granite Falls, NC August 28, 1986 Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Attention: Docketing and Service Branch
| |
| | |
| ==Dear Sir or Madam:==
| |
| | |
| ==Subject:==
| |
| NRC rule changes regarding public participation I believe that public participation in the licensing of nuclear powe r plants is essential. Any efforts to weaken the public participation will only strengthen public opposition to nuclear plants and increase suspicion of corruption of regulatory agencies.
| |
| Incidentally, I support the construction and operation of more nuclear plants. Also, I support construction of breeder reactors for the purpose of reduction of waste volume and conservation. I oppose the construction of more nuclear bombs . I support extensive research in the area of fusion reactors.
| |
| I believe that extensive public opposition has been caused by the cloak and dagger approach taken by the NRC and utilities. The flow of information made possible by modern technology allows the public to quickly detect biased representation and cover-ups. As a result, for example, even minor malfunctions of plants are perceived by the public as near disasters which the NRC and utility are attempting to downplay.
| |
| Sincerely, o1 C, ~
| |
| L. C. Coonse
| |
| ~by
| |
| | |
| ,.. ")
| |
| U.S. NUCf..EAA rtEGULA roitY COMMf!Sf DOCKETING & SERVICE SECTION OFFl'"E OF THE SECRET ARY "r- ~* ~ r01; ,cqf"lN Post Co i .
| |
| Add' I L Spec I DtlitnL
| |
| | |
| Susan Dougherty
| |
| ]6 ~EfRi.3e1AHf-~4
| |
| ~ewbury, Mass. 01950 OFF ICE r. :r. ,JKt.i AR'r DOC KETING <'le *rR VICf.
| |
| BR NCH Secretary of Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555
| |
| | |
| ==Dear Secretary,==
| |
| | |
| The N.R.C. has issue d new r ules for the role of the public in licensing hearings and proceedings for Nuclear Power Plants .
| |
| * I feel that these new rules limit the say the public h as to nearly eliminating any public input.
| |
| I also feel that the N.R.C. has ruled in favor of the Nuclear Plants, particularly Seab r ook and Stoneham, and feel tha t partiality appalling.
| |
| Please STOP these rulings and be as fair as possible.
| |
| The people DO NOT WANT nuclear power, but alternatives.
| |
| Thank you.
| |
| ~ ~ (7/,(
| |
| Susan Dougherty SD/mcf 8/29/86
| |
| | |
| ... MntAA ~Aro,v COMMISSIO DOCKETING & SERVICE SECTION
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| | |
| LI.I. NUCLE.AA ltEGUUTORY C M 1 DOCKETING & SERVICE SECTtON OFFICE OF THE SECRETA Y F T''' N"lMUJc;c;10N Postmerk Copi* *C \ M Add' I Copi s ~eproduc S,.cilf Distributien
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| w,
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| . ,.. ,UCKII IIUMBiA
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| C~l!=,i '148~5)
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| DOCKETED Citizens Within the Ted-Mile Radius Post Office Box 382, Amesbui§, !SfflssJcjWsJf\:s 01913 OFF ICE OF ~E*;r: t. 7 / ,,,.y DOCKE TI NG & S[RV ICf.
| |
| BRANCH August 26, 1986 Secretary of the Commission U. S. Nuclear ~egJ13tory Commission W3shington, D.C. 20555 Attention: Docketing and Service Branch DeAr Mr , Secretary:
| |
| This is to register the strong opposition of Citizens Within the Ten Mile Radius to the proposed revisions to 10 CFR Part 2, regarding public participation in licensing proceedings for nuclear po wer plants, as pu blished in the July 3, 1986 Federal Register.
| |
| Citizens Within the Ten Mue Radius (CWTMR) is a coalition of of residents from Massachusetts communities affecte d by the siting of the New Hampshire Yankee nuclear power plant in Seabrook, New Hampshire. We view the proposed rule changes as detrimental to public participatio n and a threat to full consideration of issues vital to public safety in this region and all emergency planning zones in the United Sta tes.
| |
| We oppose the prosed changes for the following reasons:
| |
| : l. Section 2.714 - Regarding Admission of Contentions.
| |
| This change would make it even more difficult, if not impossible, for an intervenor to adequately research and prepare arguements. In effect, the rule would require an intervenor to prove his/her contention prior to having access to NRC reports and license application comments.
| |
| The rule change will further limit the ability of the public to investigate safety questions and bring that information before the hearing body.
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| : 2. Section 2.720 - Regarding Cross Examination of NRC Staff Conclusions.
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| The proposed change would give NRC staff concl usions the status of "last word" in important public safety considerati ons by limiting supoena and di scove ry against NRC staff. The rule further prevents public challenge s to NRC concl usions.
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| : 3. Section 2 .7 4~ - Re garding Witness Cross-Examination .
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| Direct cross examina t i on of ap plicant data i s vital to the disclosure of fact . Intervenor efforts to c ross ex am i ne will be impeded by both time con s traint s in revie wing AMESBURY
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| * MERRIMAC
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| * NEWBURY
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| * NEWBURYPORT
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| * SALISBURY
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| * WEST NEWBURY
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| * AND BEYOND AeknOW!ed@ed by card *** ,~f-~~rr..~:,
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| & ,,,.u,ua.c,,- ~UL~'TO Y COMMISSION
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| ~ETING & SERVICE SECTIO OFFICE OF THE SECRETAR Y or T' I~ f"l"'\AI,, I~(' '0N
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| Secretary, NRC 2 August 26, 1986 testimony and allowable range of cross examination.
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| Again, thorough evaluation of safety issues is being sacrificed to procedural expediency.
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| : 4. Section 2.749 - Regarding Summary Disposition.
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| By allowing motions for disposition at any time in the hearing, this rule could jeopardize any contention proposed by the interv~not. The applicant could easily bufy the intervenor in unnecessary paperwork that would deftact from*
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| the pursuit of safety issues. This rule clearly weighs in favor of the applicant.
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| : 5. Section 2.762 - Regarding Limitations of Intervenor Participation.
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| Intervenors would be prevented from participating in issues beyond his/her own contentions. Each intervenor would be forced to research and introduce every issue he/she has an interest in. The result would be duplication of effort and resources, both for hearing body and intervenor, and the loss of valuable contributions to the hearing objectives.
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| In the area of radiological emergency planning, this organizations primary focus, it is imperative that public participation and scrutiny be complete and unencumbered. It is, after all, the public and local community that would make any emergency plan r *.
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| function. To minimize the input and testimony of an intervenor in nuclear plant public safety proceeding§ i ~ careless and dangerous. The proposed rule changes is an obvious attempt to do just that. At a time when public participation should be encouraged, the NRC is entertaining proposals to result in the opposite.
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| Recently, in response to the relocation of residents fifty miles from the Chernobyl IV disaster, the Chairman of the construction Bo a rd i n Bye 1 or u s s i a , ! Mr . Yu r i Pu pp i k o v , s a i d : " Bu t we hones t 1 y
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| * explained everything to them, telling them it was ~eing done in :
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| their bwn b~st interest and in the interest of the state. THERE WERE NO PROTESTS."
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| Let the record show that Citizens Within the Ten Mile Radius (of the Seabrook nuclear plant) protest the attempt of the Nuclear Regulatory Commission to weaken the public participation in licensing hearing for nuclear power plants in the United States.
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| Thank you for your attention to this matter. We trust you will seriously consider the need for greater public confidence in all NRC procedur es an d decision s .
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| Sincerely,
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| ~~~~//2~
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| Thomas F. Maughan, Coordinator For Citizens Within the Ten Mile Radius cc: Senator Edward M. Kennedy Senator John F. Kerry Congres s man Nicholas Mavroules Congres s man Edward Markey
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| f Atfd:E.Ni 1W:~'flr..(f(jti" (OMMr!SfON DOCKETING & SERVICE SECTIO omr~ t")F Tf-'E SECRET ARY
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| *r ll')N
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| :u.
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| d', C.oi; r. ' ~
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| i lr.,tributton
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| - ,. .,__,PR IIPOfUBIU CSI/:".
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| -,& (jj)
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| Ecology Tas orL ~e.
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| USNHC Southern California Ecumenical Council Post Office Box 32305, Los Angeles, Cali£uniro>9,Dj>3MQ :09 August 27, 1986 Ref: Revisions to 10CFR Part 2 - Cited in July 3, 1986 Federal Register, also known as licensing reform legislation Secretary of the Commission U.S.Nuclear Regulatory Commission Washington, DC, 20555 Attn: Docketing and Service Branch Mr. Secretary:
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| We have been aware of recent moves on the part of the NRC to encourage a revival of nuclear plant construction, an important aspect of which is to facilitate the licensing procedure. We know that the proposals referred to above are designed to inhibit inter-vention by concerned citizens like ourselves, who for example in the case of Diablo Canyon brought to light a host of gross violations of sound engineering practices and the commission's own guidelines.
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| Citizen participation might mave saved the industry the em-barrassment of Chernobyl (we know there are plants just like Cherno-
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| * byl in this country) yet the commission chooses at this time to limit constructive criticism in favor of the self-interest which has betrayed us at Three Mile Island, Fermi I and Rocky Flats (to mention but three of the dozens of nuclear disaster areas in this country.)
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| Common sense would require your tightening restrictions and raising standards for nuclear construction. You choose an opposite course. We will do what we can to make the congress aware that you are poor stewards of the public welfane ~ that you serve other interests than the safety of the citizens.
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| chairperson Acknowled&ed by
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| EGULATORV COMM!
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| & SEllVICE SF'cTIOH
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| '" C[("q_ETARY
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| ,Slot
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| ?/47/Fb I
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| 4
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| OOC K[ill 1 SIERRA CLUB ~ SANTAu~t5c1A CHAPT ER 738 Higuera St., Suite H, San Luis Obispo, CA 93401
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| .86 SEP -3 AlO :02 August 29, 1986 OFFI CE OF ::L1.,1,L IAHY DOCKETING & SE VIC [
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| BRAN CH Secretary of the Commission U.S. Nuclear Regul atory Commission Washington, D.C. 20555 ATI'N: Docketing and Service Branch Re: 10 CFR Part 2 Revisions
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| ==Dear Secretary of the Commission:==
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| | |
| It has come to our attention that the NRC has again proposed changes that would aJ.ter the role of the public in licensing proceedings for nuclea!'
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| power pl ants. These revisions would greatly restrict public input and participation, to the detriment of the licensing process and the concerns of public safety. The revisions specifically concerning admission of contentions, discovery against NRC staff, cross-examination during hearings, summary dispositions at anytime, and J.imiting the scope of issues for appeals would mean only minimal benefit to the NRC and the nuclear industry while drastically curtailing citizen participation.
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| The Sierra Club, Santa Lucia Chapter, believes that public involvement in the licensing of nuclear power plants is largely responsible for the safety record of nuclear plants in the United States. More, not less, public involement should be encouraged by the NRC. Certainly, the events at Chernobyl nuclear power plant in Russia might not have occurred or been as serious had those affected by that plant been informed of the risks around them and had an opportunity to curtail them.
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| Ultimately, it is the public who bears the risk of a nuclear power plant accident in their community. The public should always have the chance to l imit those risks. We urge the NRC to avoid revisions such as these proposed ones that restrict citizen participation.
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| Sincerel y,
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| /f~d~
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| Frank Bush, Chairman Santa Lucia Chapter Sierra Club C: Congressman Panetta 0
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| 1003/4 REC YCLED PAPER . . To ezplore . enioy . and protect thl' na11011's S(l> nic rrsourceI .
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| U,I. NUCLEAR UGUlATORY COMMISSION DOCKETING & SERVICE SECTION OFFICE OF THE SECRET ARY 01= r1-1i: r (' MMISSION Copi6' Add' I l
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| ~.f 0i1lfihuti*n
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| "86 SEP -3 AlO :51 OfFICs OF S[1.,r'1L IAR Y DOCKETING 1 SE"<V ICf" BRANCH ,.
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| 102 Main Street West Newbury, Massachusetts 01985 30 August 1986 Re: My letter of 29 Aug 86 concerning proposed changes to 10 CFR 2
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| * Sir:
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| There are several errors in my letter which I would like to correct.
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| In par.4 line 2, read "fusion" in place of "fission".
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| In par.5 change line 3 to "though we must obtain it from the Congress and the courts, not the NRC".
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| ttd~
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| Peter R. Haack Secretary Nuclear Regulatory Commission Washington, DC 20555 Attn: Docketing Branch
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| U.S. NUCI.EAR REG-ULATORY CcJMMf. m DOCKETING & SERVICE SECTION OFFICE OF THF <;FCRETA':.Y r T'' rn c: H D -
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| COQQNTE@NSE RD J _sffax: 398
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| *86oL~~~?:d2 AUGUST 28,1986 OFF ICE OF ~tu<t.TARY OOCKETINli lRV ICf.
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| BRANC'1 U.S.NUCLEAR REGULATORY COMMISSION SECRETARY OF THE COMMISSION:
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| COMMON SENSE DEMANDS THAT MORE TIME BE GIVEN FOR COMMENT ON THE PROPOSED RULE CHANGES IN LICENSING PROCEEDINGS AND . IN THE HEARING PROCESS FOR NUCLEAR
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| * POWER PLANTS, 10 CFR PART 2.
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| DUE TO INADEQUATE PUBLIC NOTICE DUE TO INADEQUATE AVAILABILITY OF DOCUMENTS DUE TO INADEQUATE TIJ4E GIVEN DUE TO THE DIPORTENCE AS A PUBLIC HEALTH ISSUE DUE TO THE IMPORTANCE OF DVIRONMENTAL IMPACT DUE TO THE COMBINATION OF ALL OF THE ABOVE DUE TO THE NmILISTIC ATTITUDE OF THE INDUSTRY THE COMMENT PERIOD.~ BE EXTENDED.
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| HONESTLY,
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| * JOHN OAKES COMMON SENSE ORGANIZATION
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| & NEWSLETTER
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| .I.
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| i)
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| .J.: .. ,*....:
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| *J
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| .i\.,
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| il
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| -:. CA :-~. ~ - . ., J
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| ~-- ~ Rf~ULATORY COMiv,~ **r,il l)OCl(ffAt:1'0 & SERVICE SECTION OFFICE Of' fH£ SKRET ARY OF THE COMMi~SIQH Document
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| * _.
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| Pos""-rlt Date 0
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| Co,iw ltecei ed Add' I Copies Re ;,reduced --;;if Speciaf Distribution
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| - ---------- ,I
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| LAW OFFICES OF oocKETE.0 USNRC BISHOP, LIBE R MAN , COOK , PURCELL & REYNOLDS 1200 S EVEN T EE N TH STREET, N . W .
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| WAS HIN G TO N, D . C . 2 003 6 *86 SEP -2 P5 :QO
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| ( 2 02 ) 85 7 - 9 800
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| ~rr*r:*
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| u "' ....
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| r1-:- C ' IN- N *E,; ~ ~ RK TELE X 440574 INTLAW UI September 2, 1986 OGC \'.,t.! ~ l ~ HOP, .LIBERMAN & C OO K TELE COP IER ( 202 ) 85 7 - 9846 IIS'S AV ENU E OF T HE AM E RI CAS NEW Y ORK, NEW Y OR K 10036
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| ( 212 ) 704 - 0100 Mr. Samuel J. Chilk TELE X 222767 Secretary U.S. Nuclear Regulatory Commission WRITER ' S DIRECT DI A L Washington, D.C. 20555 ( 202 )
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| Attn: Docketing and Services Branch
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| | |
| ==Subject:==
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| NRC Proposed Rule: Procedural Changes in the Hearing Process (51 Fed. Reg. 24365)
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| ==Dear Mr. Chilk:==
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| | |
| On July 3, 1986, the Nucl e ar Regulatory Commission published a proposed rule intended to improve the licensing process for nuclear power plants. Specifically, the proposed rule would amend portions of the NRC's Rules of Practice (10 C.F.R. Part 2 ) to narrow the focus and theoretically increase the efficiency of licensing hearings.
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| See 51 Fed. Rea. 24365. On behalf of th Nuclear Utility Backfitting an Reform Group ("NUBARG''), 1 we submit the following comments on the licensing hearing reform proposals.
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| I. General Comments The NRC's hearing process i s in desperate need of reform. The purpose of a licen s ing hearing is to resolve
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| !/ The members of NUBARG submitting their comments are:
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| Alabama Power Company, Ar kansas Power & Light Company, Baltimore Gas & Elect r ic Company, Cleveland Electric Illuminating Company, Commonwealth Edison Company, Detroit Edison Company, Duke Power Company, Duquesne Light Company, Edison Elect r ic Institute, Florida Power &
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| Light Company, Florida Powe r Corp., Georgia Power Company, Houston Lighting & Power Company, Long Island Lighting Company, New York Power Authority, Niagara Mohawk Power Corporation, Northeast Utilities, Northern States Power Company, Pennsylvania Power & Light Company, Philadelphia Elect r ic Company, Portland General Electric Company, Rochester Gas & Ele c t r ic Corporation, Southern California Edison Company, Texas Utilities Generating Company, Toledo Edison Company, Washington Public Power Supply System and Yankee Atomic Electric Company.
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| SEP 4 Acknow dpd by card~-:
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| ,. . - -~= - - - . . ;
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| I prccl ,. 4
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| ~ Distri *f .
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| - 2 -
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| specific issues of material fact in dispute. However, hearings as presently conducted are often no less than general forums on the status of th~ license application and the advisability of nuclear power. The proceedings are unfocused and unnecessarily protracted, and frequently dwell on issues which are of minor safety or environmental significance. As a result, the hearing process has contributed significantly to the unpredictability of the licensing process, and has become a substantial drain on NRC Staff and applicant resources which could more productively be used to protect the public health and safety.
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| In November, 1981, the NRC created the Regulatory Reform Task Force ("RRTF") to evaluate and suggest improvements to the NRC's licensing process for nuclear power plants. NUBARG has consistently supported the Commission's goal in appointing the RRTF. NUBARG commented upon and supported many of the licensing reform measures published in the Federal Register for public comment on April 12, 1984. The current proposed rule changes are consistent with the Commission's objectives and represent one step in the long overdue reform of the hearing process.
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| NUBARG supports that step. (Specific comments on the proposed rule changes are provided below.) However, the few changes to the Rules of Practice currently proposed (selected from the much longer list originally published by the RRTF) are in themselves insufficient to resolve the existing problems. NUBARG therefore encourages the Commission to continue the reform process it has begun.
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| One important area which represents an additional fertile ground for reform is discovery. As currently practiced, discovery in NRC cases has become an extremely long and burdensome process in and of itself. Far too much time is being allowed for discovery, encouraging inefficiency and delay. Some licensing boards have remained passive to this state of affairs and in some instances have even encouraged it. Simply stated, discovery must be put back into its proper perspective. In the earlier Federal Register notice, the RRTF proposed to give licensing boards a clear role in supervising discovery. The provision would have allowed the board, either on its own motion or upon a motion for a protective order, to limit unnecessary discovery. That proposal would have been an important step in the right direction because it implicitly established that licensing boards have a duty to supervise discovery.
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| We further propose that the rules set a standard time for discovery, and require that parties make a substantial Legalistically stated, the hearings are far more akin to legislative hearings than they are to the adjudicative hearings they should be under the Administrative Procedure Act.
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| showi~g of good cause for discovery beyond the specified time.
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| NUBARG does not believe that hearing process reform should be dismissed, or placed on the permanent "back burner", simply because no new power plants are presently on order. The NRC has a duty to provide a workable and stable regulatory framework that will be able to process pending and forthcoming adjudications involving present licenses and to accommodate future applications when and if they are docketed. A reformed hearing process will be one vital element of that framework -- necessary to assure prospective applicants and the public that any future generations of nuclear power plants can be licensed in an efficient manner without compromising public safety. The current "lull'' in licensing activity is a perfect opportunity to investigate and implement that much needed reform.
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| II. RRTF Proposals Item 2 - Admission of Contentions: This proposal would amend 10 C.F.R. §2.714 to raise the threshold for admission of contentions. Specifically, the revised §2.714 would require an intervenor to draft specific contentions and to supply information demonstrating the existence of a genuine dispute as to a material issue of fact, law, or policy. In addition, a new provision would be added to provide that a contention raising only an issue of law not be the subject of an evidentiary hearing. Instead, such a dispute would be resolved on the basis of written pleadings and/or oral argument.
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| NUBARG applauds this proposal. It should be readily apparent to any observer of NRC hearing dockets that far too many insignificant and meritless contentions have in the past been admitted in NRC proceedings. The lack of a meaningful, principaled screening process for contentions is one major contributor to the current licensing morass.
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| Under the NRC's current regulations, intervenors are required only to set forth proposed contentions for litigation, and the basis for those contentions, "with reasonable specificity." See 10 C.F.R. §2.714(b).
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| Presiding officers are expected to rule on the admissibility of the contentions based only on this "basis and specificity" standard. No inquiry into the legal or factual ii In addition, as discussed below, some of the proposals of Commissioner Asselstine merit further consideration.
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| Similarly, the Commission could rejuvenate the Atomic Safety and Licensing Board reform proposal (SECY-84-390 -
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| - now apparently moribund) for further consideration and public comment. In this manner, it is our hope that the NRC can accomplish true hearing process reform.
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| merits of the contention is allowed. Alabama Power Co.
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| (Joseph M. Farley Nuclear Plant), ALAB-183, 7 AEC 210, 216 (1974). In addition, no inquiry into the petitioner's ability to present any meaningful evidence in support of its contention is permitted. Houston Lighting & Power Co.
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| (Allen's Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 NRC 542, 547-48 (1980). The admissibility requirement can therefore be met by a very weak assertion as to the basis of a contention. In practice, licensing boards have consistently held that intervenors can simply copy contentions from other proceedings. S e e , ~
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| * Commonwealth Edison Co. (Byron Nuclear Power StatTon, Units 1 & 2), LBP-80-30, 12 NRC 683, 686-90 (1980). Similarly, intervenors can simply copy NRC inspection reports as a basis for a contention without alleging that the report is not closed or that it was not correctly dispositioned.
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| It should be clear that the NRC needs to tighten its threshold standards for admissibility of contentions .
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| Proposed S2.714(b)(2) in effect articulates a more precise basis and specificity requirement for contentions. Under the provision, contentions must asser~ specific portions of the application which are in dispute. As a basis for the contentions the petitioner must include a statement of alleged facts or expert opinions which will be relied upon to prove the contention. These two requirements are important steps to improving the contention screening process. In effect they will require potential intervenors to know what it is they will litigate and how they will litigate it before they file a petition to intervene. This will help eliminate frivolous petitions and contentions, and will prevent petitioners from simply trying to get a foot in the door in order to develop further contentions after a "fishing e~pedition" through an applicant's records during discovery .
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| * ii Of course, no threshold "specificity" requirement can alone tighten the focus of an NRC hearing if NRC hearing officers in practice do not confine the litigation to the specific issues placed in controversey. This is a separate problem with the hearing process that has not been addressed either in the proposed rule or by Commissioner Asselstine or Judge Cotter in their proposals. The Commission must define the role of the licensing board, particularly in operating license cases, in order to correct weaknesses in the hearing process, including the penchant of some boards to assume the role of case prosecutor (through, inter alia, the calling of board witnesses and the hostile, adverse cross-examination of witnesses).
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| ~/ It should also be noted that these discovery "fishing expeditions" are extremely time consuming and expensive for applicants who must respond to them.
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| | |
| Equally important is amended §2.714(d). This provision would for the first time establish actual regulatory standards to be used by a presiding officer in ruling on the admissibility of contentions. Section 2.714(b) as presently constructed does not articulate any such standard. Instead, it merely states what duties petitioners must fulfill. The regulation, as noted above, gives licensing boards little or no room to actually rule on the admissibility of a contention if the petitioner meets the low standards of specificity and basis. On the other hand, under the proposal, licensing boards would be entitled to review the petition even if it meets the specificity and basis test, in order to determine whether it presents a genuine dispute on a "material issue of law, fact, or policy." This requirement represents a positive change and provides a meaningful threshold for admission of contentions.
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| Similarly, proposed §2.714(d)(2) provides other threshold considerations for the presiding officer. These provisions properly give licensing boards authority to review a proposed contention on the merits in order to determine whether there is any conceivable validity to the contention and whether the petitioner could possibly prove a set of facts which would support the contention. The proposal would also permit boards to dismiss a contention which, if proven, would still not entitle petitioner to relief. This standard is analogous to a Rule 12(b)(6) dismissal under the Federal Rules of Civil Procedure. The adoption of such a standard would help eliminate, before lengthy and costly hearings, many contentions seeking relief far in excess of legal requirements and which therefore cannot reasonably be granted. Such contentions are particularly common in the context of emergency planning.
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| Finally, revised §2.714(d)(2) would allow the licensing board to dispose of legal issues on the pleadings. Such issues should not be the subject of evidentiary hearings .
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| Where no issues of fact are in controversy, trial type adjudications are unnecessary and would likely degenerate into no more than broad forums on the proposed plant.
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| Item 3 - Discovery Against NRC Staff: This proposal would codify existing NRC case law providing limitations on discovery against the NRC Staff. Specifically, under revised §2.720, the Staff would not need to provide detailed responses to discovery where the information is available in the Public Document Room. Moreover, the Staff could not be required, through discovery, either to perform research beyond that needed to support its position on a matter or to explain why it did not use alternative data, assumptions, or analyses on its review.
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| As a codification of existing law, NUBARG supports this proposal. The existing law serves the valid purpose of conserving increasingly limited Staff resources for its
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| - 6 -
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| substantive review of the license application. This policy also helps to assure that the Staff review does not unduly delay NRC action on the application.
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| Item 4 - Cross-Examination Plans: This proposed amendment to 10 C.F.R. S2.743 would require a party to a proceeding to obtain the permission of the presiding officer in order to conduct cross-examination. The party requesting cross-examination would also be required to provide a cross-examination plan setting forth the issues to be pursued on cross-examination, the objectives to be achieved, and a proposed line of questions.
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| NUBARG supports this proposal. However, we seriously question whether the proposal, as drafted, is sufficient to remedy the existing situation. The most common issues in NRC proceedings are substantive technical issues which can best be addressed in writing. Consequently, in many NRC cases cross-examination on these types of issues has been unfocused, ineffective, and unproductive of information helpful to the licensing board for its decision on the merits. The time spent on cross-examination is generally far out of proportion to any possible benefits. Limitations on cross-examination and an emphasis on written testimony are therefore necessary to improve the quality of the technical record. The proposed requirement that a party request cross-examination and provide a plan is a relatively minor procedural requirement that will do very little to alter the existing situation. Our experience in hearings in which cross-examination plans have been required has been that they do little or nothing to actually limit or focus the examination, absent vigilant supervision by the presiding officer.
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| The NRC's prior notice of hearing reform proposals presented a better alternative to address the issue of cross-examination. Under the earlier proposed §2.743, cross-examination would only be permitted if the requesting party could affirmatively show that the examination would achieve some purpose that could not be achieved in written direct testimony. We construed this proposal as a more significant measure to confine unnecessary cross-examination than the mere "request" currently proposed. Technical issues are best addressed in writing. Cross-examination should generally be reserved for impeaching the credibility of witnesses.
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| Limitations on cross-examination as suggested above would not deprive any party of its right to a full and fair hearing. The hearing requirement of the Administrative Procedure Act and the Atomic Energy Act does not create an absolute right to cross-examination. The NRC may properly limit cross examination to those cases where it is "required for a full and true disclosure of the facts." See Administrative Procedure Act, 5 U.S.C. §556(d);--reacoast
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| - 7 -
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| Anti-Pollution League v. Castle, 572 F.2d 872, 880 (1st Cir.
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| 1978).
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| Item 5 - Summary Disposition: This proposal would amend 10 C.F.R. §2.749(a) to permit motions for summary disposition to be filed at any time during a proceeding, including during the hearing. The current regulation allows summary disposition only "within such time as may be fixed by the presiding officer." 10 C.F.R. §2.749.
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| Summary disposition is an important procedural device for eliminating unnecessary testimony, cross-examination, and hearing time in cases where there is no longer a genuine issue of material fact to be tried. The Commission has consistently encouraged the use of summary disposition.
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| S e e , ~ , Statement of Polic on Conduct of Licensin .
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| Proceeaings, CLI- - , 3 NRC , There 1s no reason apparent to us to limit the time for summary disposition motions. The RRTF's proposal is a logical extension of the Commission's policy statement and should be adopted.
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| Items 6 and 7 - Pro osed Findin s, Conclusions, and A eals:
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| Revise S .7 wou restrict parties ot er tan an applicant and the NRC Staff) to filing proposed findings of facts and conclusions of law on its own contentions.
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| Revised S2.762 would limit intervenors to filing exceptions only on issues related to their own contentions. NUBARG supports these proposals.
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| The two proposals do not represent a major hearing reform. However, they would in effect overrule Northern States Power Company (Prairie Island Nuclear Generating Plant, Units l & 2), ALAB-244, 8 AEC 857, 868-69, affirmed CLI-75-1, 1 NRC 1 (1975). In our view, Prairie Island was decided by the Commission as a matter of policy rather than as a rule mandated by the Atomic Energy Act or the Administrative Procedure Act. We support reversal of this policy. The Prairie Island decision is inconsistent with the basic tenet that hearings are mechanisms for resolution of disputes between specific parties. The Prairie Island policy has also added to already lengthy cross-exam1nat1on and encouraged redundant filings of proposed findings and exceptions by parties with no direct stake in the original contention. In total, the policy is both unnecessary and generally not of assistance to the Commission in making its ultimate decision on the merits.
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| III. Commissioner Asselstine's Proposals Commission Asselstine requested comments on several proposals narrowly focused on the initiation and timing of the intervention process. These proposals are generally oriented toward providing information to interested parties earlier and to allowing drafting of more meaningful
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| contentions. NUBARG does not dispute the objectives of these proposals. Contentions must be more specific and meaningful than they currently are if hearings are ever to be more focused and if applicants are ever to be provided proper notice as to the issues for litigation. However, inherent in Commissioner Asselstine's proposals is the potential to further expand discovery, to create new intervenor "fishing expeditions" for issues to litigate, and consequently to considerably expand the hearings. We specifically address several of Commissioner Asselstine's proposals below.
| |
| First, Commissioner Asselstine proposes amending sections 2.101, 2.104 and 2.105 to require notice of an application at the same time the application is docketed (Items 9, 10, and 11). This is consistent with his view that potential intervenors should become involved with the review as early as possible. To the extent early involvement does not detract from the NRC Staff's attention to reviewing the application, NUBARG does not object to the revision. However, NUBARG does not view the proposal as a substantive or significant reform.
| |
| As part of the same proposal, Commission Asselstine also would require the filing of petitions for leave to intervene within 30 days of the above Federal Register notice. This is an appropriate rule change. However, again, the proposal does not represent real hearing reform.
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| The proposal is merely consistent with historical practice.
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| Second, Commissioner Asselstine suggests rules "modifying" the procedures by which contentions are drafted and admitted into controversy. Most significantly, he proposes separating "the decision on intervention from the decision on the validity of contentions" (Item 15). NUBARG does not dispute that this is a logical procedure and that it could save parties and the licensing board from addressing admissibility of contentions proposed by parties lacking the requisite standing to intervene. The proposal should be adopted into the regulations. However, it is our experience that this is exactly the procedure that has been followed in the majority of recent NRC operating license proceedings. Drafting of contentions generally follows admission of parties. In many cases the time between the two stages has been a matter of months 0 6 even years. As such, the proposal is not a true reform.
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| ~/ ~n connection with Item 15, discussed below, Commissioner Asselstine suggests a 90 day period to be allotted to the drafting of contentions. NUBARG endorses this proposal.
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| Ninety days would be an appropriate period of time to review the application and supporting material and to draft reasonably precise contentions. This period would in fact be shorter than the period that has elapsed in (Footnote 6 Continued on Next Page
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| Third, Commission Asselstine would add "some greater rigor" to the drafting of contentions (Items 15, 16, and 17). As discussed above (in connection with Item 2), this is a goal NUBARG strongly endorses. To accomplish this goal, Commission Asselstine would amend §2.714 to require a more detailed basis for proposed contentions than is currently required. In addition, related to this point, he would amend sections 2.751a and 2.752 to require the presiding office to rule on admissibility of contentions and to decide whether a hearing should be held on a contention.
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| These two decisions would be based on the following standards: 1) Whether the intervenor has identified a set of facts in support of its contention, which, if true, would entitle the intervenor to relief; and 2) Whether the contention raises a genuine issue of material fact.
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| Commission Asselstine's contention screening threshold is not dissimilar to the RRTF proposal addressed above.
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| NUBARG clearly favors Commission Asselstine's screening proposal to the current situation. However, given a choice, NUBARG prefers the RRTF proposal sponsored by the majority of the Commission. The majority proposal first calls for a more detailed basis statement than does the Asselstine proposal. For example, under the majority approach, an intervenor must show how it is planning to prove a contention. There can be no copying of a contention and supporting statement from other proceedings. In addition, revised §2.714 of the majority proposal specifically allows the presiding officer to dismiss contentions which do not raise genuine disputes as to material fact, could not conceivably be supported, or would be of no consequence even if true. The organized structure of that proposed regulation appears to us to provide a more coherent regulatory scheme allowing the presiding officer to dismiss frivolous or pointless contentions. The Asselstine proposal, on the other hand, would spread out the various screening criteria between three regulations (§2.714, S2.751a, and §2.752) and two different stages of the proceeding (the special prehearing conference and the prehearing conference).
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| (Footnote 6 Continued from Previous Page) some licensing cases between the Federal Re~ister notice and the submission of contentions. The 90 ay period ensures that hearings are promptly initiated and the parties promptly informed of the issues to be addressed.
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| In this regard, NUBARG also notes that it believes the existing standards for admission of late contentions based upon new information are adequate and need not be altered. See 10 C.F.R. §2.714(a); Duke Power Compano/
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| (Catawba Nuclear Station, Units 1 & 2), CLI-83-19, 1 NRC 1041 (1983).
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| We appreciate this opportunity to pro ide ou with our comments on the reform proposals.
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| Nie o s David A BISHOP PURC Counsel
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| HUBERT H. HUMPHREY, Ill ATTORNEY GENERAL ST. PAUL 5:'.>155 August 28, 1986
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| .86 OOGKETED A ~ f REPLY TO :
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| !02 CAPITOL BUILDING ST. PAUL, MN 551~
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| ~trt Pl'2N W ~S76196 Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Re: Proposed Amendments to 10 C.F.R. Part 2, Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process
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| ==Dear Sir:==
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| On July 3, 1986, the Commission published notice of proposed amendments to 10 C.F.R. Part 2, Rules of Practice for Domestic Licensing Proceedings. (51 Fed. Reg. 24365.) The notice also invited public comments on the separate proposals of Commissioner Asselstine for procedural changes in the hearing process.
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| The State of Minnesota, by its Attorney General, Hubert H.
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| Humphrey and its Pollution Control Agency (hereinafter "Minnesota") has reviewed the proposed rules and the separate proposals of Commissioner Asselstine and hereby submits its comme n ts thereon.
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| I. COMMENTS ON THE PROPOSED RULE AMENDMENTS A. 10 C.F.R. 2.714, Intervention The Commission has proposed amendments to 10 C.F.R. 2.714 which will, if adopted, change the requirements relating to contentions filed in a licensing proceeding. Minnesota wishes to comment on two aspects of the proposed changes to 10 C.F.R.
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| 2.714: (1) the requirements for the submission of contentions; and (2) the standards for admissibility of a contention.
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| : 1. Submission of Contentions The proposed amendments to 10 C.F.R. 2.714(b)(2) would accomplish two things. First, they would clarify the nature of a contention. Second, they would add requirements to submit materials in support of contentions. These two aspects of the amended rule are discussed below.
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| The rules as amended characterize a contention as "a specific statement of the issue of law, fact, or policy to be raised or
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| !. NUCI E.A r (' JI A 0 I 51 DOCKCTt 'G p._ f'-noN Of "' y 0 T '._ - ION Docum nl Sr1il1sties
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| 'Pos~ Da te Q2f/f~
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| C:O,... Rec**
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| * I Add' I Cople! P.t-"r~ uc cf 4 Spec* Di 11ril-, ,,;.,.,
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| controverted." Minnesota believes that this is a good statement of the nature of a contention and supports this amendment.
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| The new requirements concerning submission of materials in support of contentions are set forth in sections (b)(2)(i) -
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| (iii), which requires a petitioner to provide the following information with respect to each contention:
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| (i) A brief explanation of the bases of the contention.
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| (ii) A concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner intends to rely in proving the contention at the hearing, together with references to those specific sources and documents of which the petitioner is aware and on which the petitioner will rely to establish those facts or expert opinion.
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| (iii) Sufficient information (which may include information pursuant to paragraphs (b)(2)(i) and (ii) of this section) to show that a genuine dispute exists with the applicant on an issue of law, fact, or policy. This showing must include references to the specific portions of the application (including the applicant's environmental report and safety report) that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioner's belief. On issues arising under the National
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| * Environmental Policy Act, the petitioner shall file contentions based on the applicant's environmental report. The petitioner can amend those contentions or file new contentions if there are data or conclusions in the NRC draft or final environmental impact statement, environmental assessment, or any supplements relating thereto, that differ significantly from the data or conclusions in the applicant's document.
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| I Based on its own experience with state administrative adjudicatory proceedings, Minnesota supports the concept of requiring persons requesting an adjudicatory hearing to show that there is a material issue of law, fact, or policy related to the matter pending before the agency. Hearings are time-consuming and expensive for all concerned, and thus a hearing should not be launched unless a legitimate issue remains unresolved. However, this section as drafted is more burdensome than necessary and should be revised, as discussed below.
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| First, section (b)(2)(ii) seeks the same type of information required by section (b)(2)(i) (requiring a "brief explanation of the bases of the contention") and is thus duplicative. In addition, it could be easily interpreted to require an intervenor to have its case-in-chief ready at a very preliminary state of the proceedings. Section (b)(2)(ii) should be deleted.
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| Second, section (b)(2)(iii) should be amended to require that the issue being raised is not only in dispute but is also "materialn; i.e., that the resolution of the dispute would make a difference in the outcome of the licensing proceeding.
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| Third, section (b)(2)(iii) requires the petitioner to show that it has a dispute with tne applicant as to law, fact, or policy. History has shown that intervenors in Commission licensing proceedings are just as likely to have a genuine dispute with the Commission staff on issues of law, fact, or policy as with the applicant. This limitation on intervenors is unreasonable and should be deleted. In addition, it is conceivable that an applicant could request a hearing on the terms of its license; this rule would require the applicant to have a dispute with itself. The first sentence of section (b)(2)(iii) should be revised to delete the words "with the applicant."
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| Fourth, all language after the first sentence of section (b)(2)(iii) is unnecessarily restrictive as well as duplicative of the other information requirements of the proposed rule.
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| Minnesota -suggests that items Ci) through (iii) of section (b)(2) be rewritten as follows:
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| * Ci) A brief explanation of the bases of the contention.
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| Cii) A concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner intends Lo rely *:in proving the contention at the hearing, together with references to those specific sources and documents of which Lhe petitioner is aware and on which the peLiLioneI will rely Lo establish those facts or expert opinion.
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| (iii) Sufficient information (which may include information pursuant to paragraphs (b)(2)(i) and (ii) of this section) to show that a genuine dispute exists with the applicant on a 'd1T material issue of law, fact, or policy. 'fhis showing mast include references Lo the specific portions of the application (including the ftpplicanL' s environmental rep_or L and safely Ieporl) Lhal
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| the petitioner disputes and the Bttpporting reasons for each dispute, or, if the petieioner believes that the application fail!! to contain information on a relevant matter as reqnired by law, the identification of each failure and the snpporting reasons for the petitioner'!.
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| belief. On issnes ari!ling nnder the National Environmental Policy Act, the petitioner shall file contention~ ba!!ed on the applicant's environmental report. 'f'he petitioner can amend tho!ie contentions or file new contention~ if there are data or conclusions in the NRC draft or final environmental impact statement, environmental assessment, or any snpplements relating thereto, that differ significantly from the data or conclusions in the applicant's document.
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| : 2. Standards for Admissibility of a Contention The proposed amendments to 10 C.F.R. 2.714(d)(2) establishes criteria for the admissibility of a contention. Under the proposed rule, the presiding officer must refuse to admit a contention if:
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| (i) The contention and supporting material fail to satisfy the requirements of paragraph (b)(2) of this section. In determining whether a genuine dispute exists on a material issue of law, fact, or policy, the Commission or the presiding officer shall consider whether the information presented pursuant to paragraph (b)(2) of this section prompts reasonable minds to inquire further as to the validity of the contention; or
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| * (ii) It appears unlikely that petitioner can prove a set of facts in support of its contention; or (iii) The contention, if proven, would be of no consequence in the proceeding because it would not entitle petitioner to relief; or (iv) The contention raises only an issue of law.
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| Contentions raising only an issue of law may not be admitted for resolution in an evidentiary hearing, but rather, must be decided on the basis of briefs or oral argument as directed by the Commission or presiding officer.
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| Minnesota supports the criterion of section (d)(2)(i) requiring the presiding officer to consider whether the information presented "prompts reasonable minds to inquire
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| further as to the validity of the contention." This standard is a fair one at such a preliminary stage of the proceeding.
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| Minnesota does not support the criterion of section (d)(2)(ii) requiring the presiding officer to determine whether or not it is "likely that petitioner can prove a set of facts in support of its contention." This criterion requires the presiding officer to prejudge the merits of the petitioner's case at a preliminary stage, prior to the petitioner's opportunity to present a full case. The Commission's interests are protected sufficiently by the other criteria of this section; section (ii) should be deleted.
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| Minnesota views the criterion of section (d)(2)(iii) as essentially a definition of the phrase "material issue of law, fact or policy" and supports the inclusion of this criterion.
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| Minnesota believes that section (d)(2)(iv) should be rewritten and repositioned elsewhere in the rules. As proposed, the presiding officer is required to refuse to admit a contention if it raises an issue of law and requires that the issue be decided on the basis of briefs or oral argument. Although Minnesota does not disagree with the proposed procedural requirements for resolving contentions raising purely issues of law, Minnesota does not favor the form of the rule, for the reasons discussed below.
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| As proposed, section (d)(2)(iv) prohibits the admission of a contention raising an issue of law, despite the fact that proposed rule 2.714(b)(2) defines a "contention" as a statement of an "issue of law, fact, or policy." This provision should be
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| * deleted so that it is clear that a statement which meets the definition of a contention is not to be rejected. However, Minnesota agrees that a contention which raises an issue which is purely legal should be handled on the basis of briefs and oral argument. Minnesota suggests that section (d)(2)(iv) be deleted and a new section (e) be added to 10 C.F.R. 2.714 to state:
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| (e) If the Commission, the presiding officer, or the atomic safety and licensing board designated to rule on the admissibility of contentions determines that any of the admitted contentions constitute pure issues of law, those contentions must be decided on the basis of briefs or oral argument according to a schedule determined by the Commission or the presiding officer.
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| B. 10 C.F.R. 2.743, Evidence As proposed, Section 2.743 is amended to permit cross examination of witnesses in a licensing proceeding only if the presiding officer has approved a cross examination plan. The cross examination plan must include a description of the issue upon which cross-examination will be conducted, the objective to be achieved by cross-examination, the proposed line of questions, and the postulated answers which might reasonably be anticipated.
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| This proposal, which Minnesota regards as totally unacceptable and offensive, is set forth in section (b)(2), which provides:
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| (2) Any party seeking an opportunity to cross-examine shall request permission from the presiding officer.
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| The presiding officer shall not consider any request to_
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| conduct a cross-examination unless the request is accompanied by a cross-examination plan that contains the following information:
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| Ci) A brief description of the issue or issues on which cross-examination will be conducted; (ii) The objective to be achieved by cross-examination; and (iii) The proposed line of questions that may logically lead to achieving the objective of the cross-examination, together with the postulated answes which might be reasonably anticipated. The cross-examination plan may be *submitted only to the presiding officer and to the members of the Board and must be kept by them in conficence. The presiding officer shall include each cross-examination plan and any order relating thereto in the record of the proceeding certified on appeal.
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| This proposal is unacceptable and offensive because it negates the very purpose of an adjudicatory hearing: to adjudicate disputed facts.* Trial-type procedures are not only appropriate but essential to develop a full and complete hearing record. The right of parties to cross examine witnesses in an adjudicatory proceeding is a fundamental characteristic of the adversial process arising from basic constitutional principles of due process. There would have to be an extraordinarily good reason to remove that constitutional right entirely from persons who have a legitimate interest the matter before the Commission.
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| Such a good reason is not demonstrated in the Commission's discussion of this section. In fact, no reason is offered by the discussion of this issue.
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| The proposal is unacceptable for the further reason that it assumes a perfect world. In a perfect world, discovery would proceed perfectly, and all facts would be known by all parties well in advanace of the hearing. Each party would know exactly what to expect to hear upon cross-examination, and all cross-examination questions and answers would be neatly typed days and weeks prior to the actual date of hearing. However, this description of a perfect world does not duplicate Minnesota's experience in Commission licensing proceedings. Many intervenors, including states, have limited resources to devote to Commission licensing proceeding. Applicants, on the other hand, are generally blessed with more-than-adequate resources, and intervenors often find themselves served with voluminous testimony and exhibits, which must be examined in detail prior to the hearing. Frequently, cross-examination strategy is being
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| * formulated the night before the hearing, during coffee breaks and lunch, and evenings between hearing days.
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| Minnesota speculates that this proposal is really the Commission's attempt to control the sort of prose intervenor whose cross-examination is not, so to speak, particularly focused. If so, the proposal is overbroad, as it also affects counsel and the sort of prose intervenors who do their homework and do a reasonably good job of formulating cross examination questions. Runaway intervenors can and should be controlled by the presiding officer, and not by unacceptably broad rules which deny contitutional rights to persons with a legitimate interest in the Commission's proceedings.
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| Minnesota emphatically objects to the proposed amendments regarding cross examination and urges the Commission to revise the proposed amendments to 10 C.F.R. 2.743 as follows:
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| * 1. Section (a) should be amended as follows:
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| (a) General. Every party to a proceeding shall have the right to present such oral or documentary evidence and rebuttal evidence and to conduct, in accordance with an approved cross examination plan that contains the information specified in paragraph (b)(2) oft.his section, such cross examination as may be required for full and true disclosure of the facts.
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| : 2. Section (b)(2) should be deleted in its entirety.
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| : 3. Section (b)(3) should be amended as follows:
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| (2) Paragraphs Paragraph (b) Cl) and (2) of this section does do not apply to proceedings under Subpart B of this part for modification, suspension, or revocation of a license.
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| C. 10 C.F.R. 2.754, Proposed Findings and Conclusions The proposed amendments to 10 C.F.R. 2.754{c) would restrict an intervenor's proposed findings of fact and conclusions of law to issues which the intervenor placed in controversy in the proceeding. The last sentence of the proposed rule provides:
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| An intervenor's proposed findings of fact and conclusions of law must be confined to issues which that party placed in controversy or sought to place in controversy in the proceeding.
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| Applicants and Commission staff, however, would not be subject to this limitation *
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| * Minnesota strenuously objects to this proposal, as it will not further the Commission's interest in better decision-making and it will severely limit the full participation by intervenors.
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| Given the complexity of the subject matter in a typical --,-,**-~*-
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| * Commission licensing proceeding, an intervenor may discover that it is vitally interested in an issue which it did not initially identify. There is nothing inherently unfair about a party submitting its views as to the state of the record on an issue which has been duly raised in an adversarial proceeding. The filing of proposed findings of fact and conclusions of law does no harm to the decisionmakers; on the contrary, it could be of help to them. The proposed limitation is not supported by any valid rationale and should not be adopted by the Commission.
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| Minnesota urges the Commission to delete the last sentence of the proposed amendments to 10 C.F.R. 2.754{c) *
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| * D. 10 C.F.R. 2.762, Appeals to the Commission from Initial Decisions The proposed amendments to 10 C.F.R. 2.762{d){l) would restrict an intervenor-appellant's brief to the issues which the intervenor-appellant placed in controversy in the proceeding.
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| The second sentence of the proposed rule provides:
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| An intervenor-appellant's brief must be confined to issues which the intervenor-appellant placed in controversy or sought to place in controversy in the proceeding.
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| Applicants and Commission staff are not restricted in any manner in raising issues on appeal.
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| Minnesota objects to this proposal. The raising and briefing of valid issues on appeal by persons other than those who put the issue in controversy is no threat to sound decision-making. An erroneous initial decision on an issue should be allowed to be raised and corrected no matter what party initially raised the issue. The proposal is not supported by any valid rationale and should be dropped.
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| Minnesota urges the Commission to delete the second sentence of the proposed amendments to 10 C.F.R 2.762(d)(l).
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| II. COMMENTS ON THE SEPARATE PROPOSALS OF COMMISSIONER ASSELSTINE As Minnesota understands it, Commissioner Asselstine's separate proposals would establish the following four changes in the licensing process:
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| : 1. Require the Commission to publish, prior to the docketing of an application, a notice that an application has been filed. The purpose of this requirement is to give enough advance notice of applications so that the Commission staff, the applicant, and interested members of the public could meet informally to resolve questions and concerns, prior to the point at which deadlines are set for filing hearing requests and petitions to intervene.
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| : 2. Decide the question of the petitioner's standing prior to the drafting of contentions or rulings on the admissibility of contentions. If the intervenor has no standing, the intervenor is then saved the time and
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| * expense of preparing contentions and supporting materials.
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| : 3. Allow 90 days for the drafting of contentions, and then screen the contentions for admissibility.
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| : 4. Allow discovery to proceed, and then make a determination as to whether a genuine issue of material fact exists. If not, no evidentiary hearing is held on that issue.
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| Minnesota supports Commissioner Asselstine's proposal for the reason that the sequence of events under this proposal is logical, easy to understand, and likely to be more efficient for all of the parties. Minnesota offers the following comments on the specifics of the proposal as set forth in 51 Fed. Reg.
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| 24373-24374 (July 3, 1986).
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| A. 10 C.F.R. 2.101, Filing of Application Commissioner Asselstine proposes to amend 10 C.F.R. 2.101 (a)(2) to require the Commission to publish a notice of receipt of an application in the Federal Register, identifying the Local Public Document Room where information will be available for public inspection. The rationale behind this early notice of the Commission's receipt of an application is to allow informal discussion and resolution of issues prior to the notice of formal docketing of the application.
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| Minnesota wholeheartedly supports this proposal. Minnesota has long believed that the present system of notifying the public, wherein the first published notice calls for requests for
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| * hearing and/or petitions to intervene, encourages litigation rather than informal discussion and possible early resolution of disputes. Under the present system, a potential litigator has a very short period of time to make a decision as to whether or not a hearing should be requested, and if this period of time is allowed to lapse, then the intervenor is "out of court."
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| Consequently, many requests for hearing are filed which may have been unnecessary if there had been a previous opportunity for dispute identification and resolution. Minnesota believes this proposal should be adopted.
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| B. 10 C.F.R. 2.104, Notice of Hearing Commissioner Asselstine proposes to amend 10 C.F.R. 2.104 to specify the number of days' notice that the public must receive concerning hearings. For certain applications, 15 days notice is
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| * required; for other applications, thirty days notice is conjunction with the proposal for notice of filing of the application, provides just barely adequate notice.
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| required.
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| Minnesota believes that this proposal, so long as it is in In Minnesota, there is a minimum lag time of three days between the date of a Federal Register and the date that Minnesota receives it. Thus, a fifteen-day notice period is really a twelve day or less notice period. However, in actual practice, assuming publication of notice of the filing of an application under Commissioner Asselstine's first proposal, an interested person who takes advantage of the opportunity to make informal contacts with the Commission staff should be able to find out in advance when the staff expects to publish the notice. Hence, these time periods may be adequate in the real world.
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| C. 10 C.F.R. 2.105, Notice of Proposed Action Commissioner Asselstine proposes to amend 10 C.F.R.
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| 2.105(e)(2) to provide that the first determination made by the presiding officer is a ruling on the request for hearing or petition to intervene. The purpose of this proposal is to separate the ruling on the petitioner's standing from the ruling on the admissibilty of contentions, which is made later.
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| Minnesota supports this proposal. It relieves a potential intervenor who is found not to have standing to intervene from the burden and expense of preparing contentions and supporting materials. This proposal should be adopted *
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| * D. 10 C.F.R. 2.714, Intervention Commissioner Asselstine proposes to amend 10 C.F.R. 2.714 to address deadlines for filing petitions to intervene, consideration of nontimely filings, prehearing orders concerning the conducting the hearing, and the filing of contentions.
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| Proposed 10 C.F.R. 2.714(h) specifies a minimum of 90 days for the drafting of contentions and supporting materials.
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| Minnesota supports the provisions of Commissioner Asselstine's proposal relating to contentions. Minnesota believes that these proposals strike a proper balance between the interests of all the parties to the proceeding. However, Minnesota believes that certain ,language from the Commission's proposed amendments to 10 C.F.R. 2.714(b)(2) should be inserted into the proposal, specifically the statement that a contention is a "specific statement of the issue of law, fact, or policy to
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| * be raised or controverted." Minnesota believes that this basic definition of a contention would help intervenors draft proper contentions.
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| D. 10 C.F.R. 2.751a, Special Prehearing Conference in Construction Permit and Operating License Proceedings Commissioner Asselstine proposes to add 10 C.F.R. 2.751a requiring the holding of a special prehearing conference to consider all contentions of the intervenors and to allow the presiding officer to rule on the admissibility of each contention. In addition, the proposal provides for the entry by the presiding officer of an order which will control the subsequent course of the hearing.
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| There is one aspect of the proposal with which Minnesota disagrees. The last two sentences of proposed 10 C.F.R. 7.751a (a)(3) state:
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| A contention will be admitted provisionally if it satisfies the criteria set forth in S 2.714(h) and the presiding officer determines that the intervenor has identified a set of facts in support of its contention which, if true, would entitle the intervenor to relief.
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| If an intervenor does not list one contention which satisfies the requirements of this paragraph, that intervenor, absent a showing of good cause, will lose its status as a party to the proceeding.
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| (Emphasis supplied.) Minnesota objects to the proposal wherein an intervenor loses its status as an intervenor unless it identifies a factual issue, as opposed to an issue of law or policy. Material issues of law or policy may also entitle an
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| * intervenor to relief. Minnesota prefers the language used by the Commission in its proposed amendments to 10 C.F.R. 7.714(d)(2) and suggests that the last two sentences of Commissioner Asselstine's proposal with respect to 10 C.F.R. 2.751a (a)(3) be rewritten as follows:
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| A contention will be admitted provisionally if it satisfies the criteria set forth in S 2.714(h) and the presiding officer determines that the intervenor has identified information a set of facts in support of its contention which, promats reasonable minds to inquire further as to the vali ity of the contention if true, would e11title the intervenor to relief. If an intervenor does not list one contention which satisfies the requirements of this paragraph, that intervenor, absent a showing of good cause, will lose its status as a party to the proceeding *
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| * Under this language, an intervenor who raises a material issue of law does not lose its status as an intervenor. Minnesota urges Commissioner Asselstine to consider changing his proposal in this manner.
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| E. 10 C.F.R. 2.752, Prehearing Conference Commissioner Asselstine has proposed to word 10 C.F.R. 2.752 to provide that no hearing will be held if no genuine issue of fact exists with regard to a contention. Again, this language suggests that a contention is only a contention if it raises an issue of fact. As previously discussed, Minnesota prefers defining a "contention" more broadly, to include issues of law and policy. Minnesota recognizes that evidentiary hearings are ill-suited for the resolution of disputed issues of law and that such issues should be resolved by briefs and/or oral argument.
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| Therefore Minnesota suggests that the language of Commissioner Asselstine's proposal Concerning 10 C.F.R. 2.752 (a)(6) be amended as follows:
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| The need for a hearing on the contentions filed by any and all intervenors. k An evidentiary hearing must be held on a contention if unless the presiding officer finds that~ no genuine issue of material fact exists with regard to the contention~ If the presiding officer determines that any of the admitted contentions constitute pure issues of law, those contentions must be decided on the basis of briefs or oral argument according to a schedule determined by the presiding officer~ and
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| * III. CONCLUSION Minnesota appreciates this opportunity to comment on the Commission's proposed rules and the separate proposals of Commissioner Asselstine. Please direct all future correspondence in this matter to Jocelyn F. Olson, Special Assistant Attorney General, Pollution Control Division, 1935 West County Road B-2, Roseville, Minnesota 55113.
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| Respectfully submitted, STATE OF MINNESOTA
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| * HUBERT H. HUMPHREY, III Attorney General 102 State Capitol Aurora Avenue St. Paul, Minnesota 55155
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| ~~-=-
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| ~THOMAS J. KALITOWSKI Executive Director Pollution Control Agency 1935 West County Road B-2 Roseville, Minnesota 55113
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| Sheila King 193 Hif i ~id-2 P2 :31 Newbury , MA 01950 OF-£JC E (tf ,.. RY Augu st oOCt(;n 'rtq~6ltR V1CL 1
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| BRANCH Secretary of Consignment U. S. Nuclear Regulatory Commission Washington , DC. 20555 Attn . Docket and Service Branch PO 50-443-50-4401
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| ==Dear Sir :==
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| * I wish to state my formal objections to your proposed rule changes, the deadline for such objections being September 2 and September 12th, 1986 .
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| My objections are to your proposed relinquishing of 6tates ' participation in the licensing of nuclear power plants as pertains to their accepting the evacuation plans . It is my opinion that the people living around a nuclear power plant should have !!!.Q.!:Q control over the process , not less , because they are the most at risk , with the least to gain , by its oper-ation . Let us not forget that the United States , on paper , at least (i . e . The Constitution) is a democracy .
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| Thank you for your attention *
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| * Sine erely ,
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| ~ G . ~0 Sheila G. Ki~g cc The Honorable Edward M. Kennedy , Massachusetts The Honorable John Kerry , Massachusetts Nicholas Mavroules , Member of Congress , Massachusetts
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| f E: ~ 9 1J2 1J
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| <JOO
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| ..> J , ~JI .,.J U.S. NUCl9iR R!GUt.ATORY Ct,MMISSI08 DOCKETING & SERVICE SECTION OFFICE OF THE SECRET ARY OF THE COMMISS.ION Postmark o,,~'m'"t s;-(i,,/f(,
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| t opie, ece d /
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| Add' I Copies R,-~r:,rl ucr d
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| ~pedal Distribut; n
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| ' )
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| j.
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| 5 Brorafi e l d St r eet ifowlwry p o1,t, l\LA. 0 1 9 50 OOCKETE[1 August 27 , 1986 l.h Nf C "86 SEP -2 P2 :23 Se cr etar y of the Conmd s sion U . S . Nu cle a r Reg ul a to ry Commi s s i on OFFI Cf:. 0~ ~- . . 1 r . AkY Wa shin g ton . D. C. 20555 DOCK ETING & Sfr,VI CL BRAN CI-J Attn : Do c ket i n g a nd Servi c ~ Br a n ch De a r Sir:
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| I am wr i t ing t o y ou regar d i ng t he seri es of r ule s which the NRC is con si d *? ring in orde r to II imp rove II the licen sing proce ss .
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| I JG i s q_u i .t t~ e; l ear tl;.::1t -tl1is a~~j_:riistra t ~ ~ !: 2.nd *ti1e pr eser..t NR.C Corrmd.s s ion e rs wish to remove t he publi0 from any s ay in the l ic en sing pr oc ee ding s f or nu c lear p owe r p l a ntS:--
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| * I .?Jn oppo sed t o t h es e p rop osa ls in tha t t hey wou ld r a is e
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| ~dmis s i ons cri teri a for c ont ention s , restric t t he u se of d i s -
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| c ov e r y nga i nst NEW s t aff r es trict t h e us e of cros s - exami nation durin g h -3a ring s, a llow fo r summa r y dis p osition of con t ention s anytime du ring the lice:1s e -r:> roce e ding s 2nd limi t the scop e of issue s t ha t cou l d he a n n e a l e d It is apparent t hat t h e s e p ro-p osal s wou l d mi ~1 imize pu b lic i mput b ,y cu rt e.ilin g int e r-ven ors .
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| Si nce when is an a p p oint e *.:, Commis s ion i n t hi s co 1J.ntry aut on omoQs ? I t n ou l d s e em t h a t Chern oby l ha s h ad t h e op p osit e e f f ect on th e 1,rnc
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| * t hat n o l e sson on safety has b een l earned and th2 t th i s commi ss ion wishes t o lea d this country h ead on to it s ovrn. ,mcl e a r disr~. s t e r ! The: i n c rens-:- d di s r eg:~rd of saf e t 7 a nd T)Ub l ic c on c ,-1 r 11 i s und ,*: r mj.n i ng th e c red i b i l ity of t he ~:.RC in the
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| ~y es of t l c public I ob j ect 21s0 to ~he sho r t ti~e g i ven t o ~he pe op l e to r e s-T1 0 -1d to th es,; p ;:-'oposal s . T~*tis i s ~u s t a"1 otli:.:'! r 1.*1.,:,,._\' to st i :f1 e
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| NUCLEA 0 OCKETI c-OFFIC Of T iE C Doc
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| JOOWNUIIBill McEachern and Thornhill (~IP. - . @
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| Attorneys At Law OOCKE TU:
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| USNHC
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| '86 SEP -2 P2 :10 August 29, 1986 OFF ICE o* '.::-[ r,::,_,A><_ Y DOC KETIN G.'. S[t"IV ILf.
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| BR ANC H SECRETARY OF THE COMMISSION U.~. NUCLEAR REGULATORY COMMISSION WASHINGTON DC 20555 Attention: Docketing and Service Branch Re: Proposed Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process
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| ==Dear Sirs:==
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| Please be advised that the Town of Hampton, present1y admitted as a interest municipality in the Seabrook Station Emergency Planning Licensing Proceedings, hereby objects to the proposed rules of practice for domestic licensing proceedings - procedural changes in the hearing process, set forth in the Federal Register, Volume 51, No., 128 (7/3/86).
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| While ostensibly the proposed rules are intended to "improve" the licensing hearing process, in fact the rules, if adopted, would further and substantially undermine public comment and input into the licensing proceeding, including comment and imput on significant safety concerns of those individuals living near, and potentially most seriously affected by, a nuclear accident in that:
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| (1) intervenors would be required to fully detail the bases for their contentions before the licensing proceeding had even commenced, before the intervenors would have opportunity to obtain any discovery from t he applicant, and before the intervenors would otherwise have an opportunity to fully explore significant and complex safety issues; (IO CFR §2.714)
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| (2) intervenors would be denied re asonable, equal, and reciprocal discovery rights with respect to the NRC staff since, under the proposed rule, the staff would not be required to provide information if "reasonably obtainable from any other source". Obviously intervenors, such as the Town of Hampton, wi -t: h limited resources should not be required to expend additional time and money in an effort to locate information most efficiently obtained directly from the Duncan A. McEachern Dan W. Thornhill Matthew T. Brock PO Box 360, 10 Walker Street Kittery, Maine 03904, 207/439-4881 Associated with Shaines & McEachem PO Box 360, 25 Maplewood Avenue Portsmouth, New Hampshire 03801, 603/436-3110 Acknowtedged by card~~~- .~ .....~......~
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| l .
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| JM::tJ.iiR "'--~ ~.,.. Ci - i...:. :i DOCK SECT ON OFFICE Of THE SEC!l.ETARY OF H COM S O I urri
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| ~ oat
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| . r1,c c.... , . ,
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| .t Di~ rib1.o11
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| McEachern and Thornhill Attorneys at Law NRC staff. This proposed rule would have a chilling effect on the intervenors' ability to have reasonable access to necessary information. (l O CFR §2.720).
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| (3) the proposed rule would require intervenors intending to utilize cross examination at licensing hearings to obtain prior approval from the hearing Judge, after detailing specifically those issues to be raised in cross examination. The rule would thereby defeat the fundamental purpose of cross examination to explore credibility, inconsistency, bias and otherwise probe the truth of the matters asserted on direct examination. Necessarily effective cross examination requires a reasonable element of surprise and ability to shift th e dir ection of the cross e xamination based upon the manner in which the direct testimony is provided, all of which would be defeated under the proposed rule.
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| Additionally, presently intervenors with limited resources are required to rely on cross examination extensively in an effort to prove their position.
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| Such a fundamental evidentiary tool of the intervenor should not be subject to prior approval of a hearing Judge. (l O CFR §2.74-3).
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| (4-) the proposed rule would deny intervenors the right to participate on all issues in which the intervenor has an interest. Intervenors would thereby be precluded from joining in issues raised by fellow intervenors and would thereby require each intervenor to bear full financial responsibility for all issues in which he m3.y have an interest rather than, as at present, sharing that financial obligation with co-intervenors to litigate all issues of concern. (l 0 CFR §2.762). -
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| For reasons set forth above, the Town of Hampton respectfully requests that the proposed rules set forth above not be adopted .
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| * Respectfully submitted, By: u~~
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| Matthew T. Brocl<
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| 00lK[l [ :
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| ''S NHC 14 01 i ve "str*eet Newburyport, MA 01905 "86 SEP -2 P1 :48 August 29 ~ 1986 OFFI CE Or ::t. .-,~ , RY DOC KETING StRVI Cf.
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| Secretary of the Commission BRA NCH U.S. Nuclear Regulatory Commission Washington D.C. 20555 Re: Docket #50- 443-50-4440
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| ==Dear Secretar-y:==
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| We ar-e writing you to express our strong opposition to the proposed changes in licensing proceedings for nuclear power plants. We believe these changes will sharply minimize the role of the public in proceedings and that this would be very detrimental to the public's ability to bring vital safety information forward. These proposals would be detrimental because they would
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| --raise the admissions criteria for contentions;
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| --restrict the use of discovery against NRC staff;
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| --restrict the use of cross-examination during hearings;
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| --a l low for summary disposition of contentions anytime during the license proceedsings; and
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| --limit the scope of issues that could be app e aled.
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| The effect of these changes would be to cut down on interveno r 's procedural rights. As you know, the public has consistently raised vital safety issues, and serves as a protection against the possibility that the NRC staff may have overlooked safety problems .
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| In light of widespread public concern over the Chernobyl catastrophe, we believe the Commission should broaden rather than narrow public input into licensing hearings.
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| If the NRC is really concerned with protecting public safet1/2 as it claims to b~rather than protecting nuclear industry, then we believe that the Commission would surely reject these proposed "reforms".
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| We will be watching the hearings with great interest.
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| Sincerely yours, Dr . Ellen Becker Bruce Skud SEP 1
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| :know edge y ru .... .**-,....;,...**...,.,
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| {
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| O.& ~ lifcfuiAf6-v COMM DOCKETING & SERVICE SECTION OFFICE OF THE SECRETARY OF THE COMMISSION Document Statistic, Potlfflent Date
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| ~
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| Copies Received
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| ~dd' I Copies Reproduced .,_ - -
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| lpeciat Distributien
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| DOlK[TL '.!
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| U5 NRC 102 Main Street West Newbur>fi6 MSEfs~hR~eBSs 01985 29 August 1986 OFF IC EOf 1:.v 1Af< Y OCKETING <', SU< VICL BRANCH Re: 10 CFR 2 Sir:
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| Proposed changes to 10 CFR 2 were published in the Federal Register on 3 July 1986. If th~y were even-handed revisions intended to simplify and expedite the licensing process I could support them.
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| But they are not: as amended, each of the five affected sections
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| * will make it more difficult for objective comment to be received, discussed and acted upon.
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| There is a broadening public awareness that the nuclear industry is either unable or unwilling to monitor and improve its performance. In my part of the country people immediately think of the Pilgrim plant at Plymouth, a mind-boggling demonstration of mismanagement and near-criminal irresponsibility. And the NRC's past overview of Pilgrim does nothing to inspire confidence in it either.
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| It must be obvious to the NRC that it needs to create more public support, not less, and that these revisions are exactlythe wrong way to go about it. The present hearing process may not be perfect, but it is reasonably objective, and your former Chairman, Mr. Palladino, did not find that it delayed licensing. The rationale for change is not clear to me, but it appears to be an attempt to help the faltering nuclear industry, one that moves the NRC closer to promotion than to regulation.
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| In any event, you are backing the wrong horse. The continuing work in nuclear fission at Princeton and other places is nearing success. I suggest that you should be preparing for an as-graceful-as-possible phase-out of fission plants instead of propping up and encouraging further investment in a dying industry.
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| I oppose the changes proposed to 10 CFR 2. We need improvement, yes, and in many other areas of concern, but it begins to look as though we must obtain them from the C ~ o ~ r t the NRC.
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| Peter R. Haack Secretary Nuclear Regulatory Commission Washington, DC 20555 Attn: Docketing Branch
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| N}Q.W REGULATO Y MMI DOCKETING & SERVICE SECTION OFF ICE OF THE SECRETARY Qf THi COMMISS.IOH PM Co o ,* .,.,,
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| !tecriv d
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| ?J; /r0 /
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| Add' I Copi s ~rodi.ced ,1_.-- -
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| Spec: Oist ri ul n
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| OOCK CTL [!
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| ATTORNEY AT LAW :Y>NHC RD 3 BOX 107 BLAI RSTOWN, N , J, 0782S TEL EPHONE (201) 362-9321 "86 SEP -2 Pl :33 OFF ICE Jr ::Lt-hL .AkY August 28, 1986 0OCK E1 ING ~ SF.RVI Cf.
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| BRANCl-1 Secretary of the Commission US NRC Washington, DC 20555 Attn.: Docketing and Service Branch Re: Part 2, 10 CFR (proposed rule changes)
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| ==Dear Commission Members:==
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| I have reviewed the proposed Rule Changes and am not in agreement with proposed Section 2.714; 2.720; 2.743; and, 2.762.
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| In my opinion these changes substantially interfere and erode due process protection for intervenors. I am particularly distressed with any attempt to limit cross examination.
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| At this time the public is concerned about the safety of nuclear power. The Nuclear Regulatory Commission is charged with being the nation's watch dog. Limiting the public's right to play an important part in licensing proceedings is contradictory to the NRC's primary function.
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| We respectfully request that you disapprove these proposed
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| * rule changes.
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| cX. tl-V.,aA-.,*;._,p I~ g Lorraine G~ d ------
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| cc Sen. Bradley Sen. Lautenberg Nuclear Information and Resource Service
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| fl.4 """""'- REGULATORY d5MM(f~,0..
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| ,OCKETING & SERVICE SECTION OFFICE OF TH E SECRET RY OF TH E COM~~ 1 I D Cl 01tm11rl D, t
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| ~or --~
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| J.,
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| 00(,KfTEO USNRC THE COUNCIL .86 SEP -2 Pl2 :54 OF THE CITY OF NEW YORK RUTH W. MESSINGER COMMITTEES:
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| COUNCIL MEMBER. 4TH DISTRICT. MANHATTAN EDUCATION CITY HALL TRANSPORTATION NEW YORK, N. Y. 10007 GENERAL WELFARE 212-566-071 9 WOMEN SUBCOMMITTEE: CHAIRPERSON ,
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| DISTRICT OFFICE TRANSPORTATION FOR DISABLED 486 AMSTERDAM AVENUE NEW YORK, N. Y. 10024 212-799-7400 August 27, 1986
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| * Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attn: Docketing and Service Branch
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| ==Dear Secretary:==
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| I write today in opposition to the Nuclear Regulatory Commission's proposed revisions to 10 CFR Part 2 regarding the role of the public in licensing proceedLn *.g s for nuclear power plants.
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| As an intervenor in the NRC's licensing proceedings for Indian Point, I am opposed to the development of any regulations whose effect would be to limit public input into the licensing process. As dangerous technologies impact upon more and more communities, we have an obligation to expand public participation in the process which regulates those technologies. Constricting participation enhances the threat that a given project may pose to a community, because it retricts the free flow of inquiry which is vital to making informed judgements in these matters.
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| The proposal to raise the threshold for admissibility of contentions (Section 2.714) would restrict public participation in the licensing process by requiring potential intervenors to submit a very detailed case prior to being admitted as a party to a hearing. The lack of access to NRC staff reports and comments will hamper a potential intervenor's case preparation, making it less likely that such person will be able to obtain the status of intervenor.
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| Redefining the rules governing supoenas and discovery against NRC staff (Section 2.720) shifts the burden of proof, so to speak, from the NRC staff to the intervenor.
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| Requiring the intervenor to locate the sources which form the basis of the positions taken by NRC staff during the hearing process can only make such intervention more costly and less effective, while again limiting the free flow of information.
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| Restricting cross-examination during hearings (Section 2.743) is an even more effective way of restricting information flow. Though this restriction would appear to be applied equitably to all parties, clearly intervenors, whose resources tend to be more meager
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| U.S. NlJCt~ REGUlAfORY COMMISSION DOCKETING & SERVICE SECTION OFFICE Of THE SECRETARY OF THE COMMISS.ION Docum nl Stet,ilics Pcntrnrlt Date Copi. Ito~,.*
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| _ fh/f 6_ I
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| ~dd'I Co ,.,. ,1
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| than those of the other hearing parties, would stand to lose the most from the imposition of detailed procedures to request the right of cross-examination.
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| Allowing motions for summary disposition at any time during the hearing process (Section 2.749) hardly seems condusive to the supposed intent of the new regulations, which, as I understand it, is to improve the licensing process. How does allowing harrassing motions against a party to a hearing improve the process? This proposed change has the potential of undermining an intervenor's case preparation through diversion of resources to defending against nuisance motions, and of unti.e rmining the hearing process through diversion of attention from the issues.
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| Lastly, artificially confining an intervenor's participation to those issues which that person placed in contention (Section 2.762) eliminates one of the advantages of a hearing process-- the ability to conduct a dialogue which is spontaneous and potentially educational
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| * to all parties concerned.
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| The NRC's proposals in these regards would serve to restrict the educational potential of its hearings. If light of the Chernobyl accident, one would think that those to whom the regulation of nuclear power plants and projects has been entrusted would be as concerned as anyone about permitting the greatest public input into the regulatory hearing process. The failure of these recommendations to move in the direction of greater public input alone recommends their denial. The effect of these proposed regulations in restricting that access is something I wholeheartedly oppose, and I urge you to withdraw the proposed changes to 10 CFR Part 2.
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| Council Member
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| * RWM:mr
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| 245 SUMMER STREET, BOSTON, MASSACHUSETTS ADDRESS ALL CORRESPONDENCE TO P . O . BOX 232!5, BOSTON , MASS. 021f36 SEP -2 Pl2 :35 W . U . TELEX : 94 -0001 * -*
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| BOSTO N 94 -0977 DESIGN NE W YORK CHERRY HILL, N .J . CONSTRUCTION DENVER CHICAGO oFF,~'O:L Sl *~ 1*. r ; Ah !
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| H OUSTON oo~~~t%453ERVlcr PORTLAND, OREGON EN Git)R'.M~\
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| WASH INGTO N, D . C.
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| Secretary of the Commission August 28, 1986 U.S. Nuclear Regulatory Commission Washington, DC 20555 Attention: Docketing and Service Branch
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| * PROPOSED RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS - PROCEDURAL CHANGES IN THE HEARING PROCESS 51FR24365: JULY 3, 1986 Stone & Webster Engineering Corporation (SWEC) is pleased to submit comments on the subject procedural changes to the nuclear power plant licensing process. Our comments are arranged according to the "Item Nos."
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| set forth in the Notice of Proposed Rulemaking.
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| Item 2: INTERVENTION (10CFR2.714) ADMISSION OF CONTENTIONS SWEC has consistently supported the concept of raising the threshold for admission of contentions. Al though this would place more burden upon intervenors, such burden is commensurate with their responsibility. Having to tender evidence of a genuine factual dispute would curtail the practice
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| * of merely copying admissible contentions from previous proceedings without further investigation of the contentions' applicability to the subject proceeding. Although NRC case law permits an intervenor to copy contentions from another proceeding (12NRC683, 686-90 (1980)) and allows the basis for a contention to be a reference to a source and an assertion, without the need to detail supporting evidence (11NRC542, 547-48 (1980);
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| 6AEC423, 426 (1973)), such has historically led to abuses and prolongation of the hearing process.
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| NRC should also reconsider the concept of prohibiting contentions that are based on general factual issues which were previously admitted and determined in another NRC proceeding. This concept was proposed in 1984, but not addressed in the current proposed rule. The criteria would be the same as that set forth in the 1984 proposed rule (specifically at 49FR14711). This concept would be very practical, and its legality should be investigated.
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| AckltOWtedged by c:anf .*
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| U. "'11..UIIII"" Ul.ATO Y COMMISSION DOCKET G & SERVICE sebtON OfFICE OF THE SECRET ARV Of THE COMMISSION Document Statistics Po.lnlltlt Date Copiea bceived li\dd' I Copies Reproduced
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| -~'-----
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| lpecl.t Distributi on
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| SOTC 2 Item 3: SUBPOENAS (10CFR2.72O) DISCOVERY AGAINST NRC STAFF We agree with the proposed rule and the limitations it places on interrogatories to the NRC staff. We question, however, why this concept is applied only with respect to the NRC staff and suggest that it should be applicable to other parties as well.
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| Item 4: EVIDENCE (10CFR2.743) CROSS-EXAMINATION PLAN We agree with the requirement for submittal of a cross-examination plan and the criteria set forth in the proposed rule.
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| In addition, we believe that cross-examination by an intervenor should be limited to issues of material fact germane to the subject matter of an admitted contention advanced by that particular intervenor. This concept was contained in the 1984 proposed rule but deleted from the present one
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| * It should be reinstated. Limiting cross-examination to an intervenor's admitted contentions would be consistent with the limitations contained in the proposed revisions to 10CFR2. 754(c) and 10CFR2. 762(d)(l) as addressed in Items 6 and 7.
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| Item 5: AUTHORITY OF PRESIDING OFFICER TO DISPOSE OF CERTAIN ISSUES ON THE PLEADINGS (10CFR2.749)
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| ==SUMMARY==
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| DISPOSITION We agree that a motion for sunnnary disposition should be allowed at any time, thereby preventing unnecessary litigation.
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| Item 6: PROPOSED FINDINGS AND CONCLUSIONS (10CFR2.754)
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| We agree that an intervenor's proposed findings and conclusions should be confined to issues which that party placed in controversy. However, both the section-by-section analysis and the proposed rule also allow the intervenor to file proposed findings and conclusions on issues that the
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| * party "sought to place in controversy." If an intervenor failed to have an issue admitted, that intervenor should not be allowed to file proposed findings and conclusions with respect to that issue. An intervenor's filing of proposed findings and conclusions should be limited to that intervenor's admitted contentions.
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| Item 7: APPEALS TO THE COMMISSION FROM INITIAL DECISIONS (10CFR2.762)
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| We agree that an intervenor-appellant's brief must be confined to issues the intervenor-appellant placed in controversy. Consistent with the discussion in Item 6, an intervenor-appellant should not be allowed to brief issues which that intervenor-appellant sought to place in controversy but were not admitted as that intervenor's contentions.
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| Item 8: DEFINITIONS (10CFR2.4)
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| Defini ng and codifying the term "local public document room" (LPDR) presents no problem.
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| SOTC 3 Item 9: FILING OF APPLICATION (10CFR2.101)
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| We agree with the proposed revision insofar as it provides for a notice of receipt. However, during the time that the application is treated as a tendered application, pending a determination of acceptability, we believe that it is inappropriate for NRC to initiate discussions with interested persons.
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| Item 10: NOTICE OF HEARING (10CFR2.104)
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| We agree with the placing of a 30-day limitation on the filing of petitions to intervene and believe that such would be in the best interests of NRC and applicants.
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| Item 11: NOTICE OF PROPOSED ACTION (10CFR2.105)
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| The proposed revisions to 10CFR2.105(a)(8) and 10CFR2.105(e)(2) present no problem and appear to lend themselves to expediting the hearing process.
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| Item 15: INTERVENTION (10CFR2.714)
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| We do not agree with the proposal to separate the decision to allow intervention based on standing from decisions concerning the validity of contentions. An individual should be granted intervention only after it is determined that the person has standing and has at least one admissible contention.
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| Item 16: SPECIAL PREHEARING CONFERENCES IN CONSTRUCTION PERMIT AND OPERATING LICENSE PROCEEDINGS (10CFR2.751a)
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| We believe that if the threshold for admitting contentions is raised appropriately (Item 2), a final determination as to admissibility can and sho.u ld be made at the special prehearing conference. On this basis, the
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| * provision in the proposed rule for a provisional determination of admissibility is unnecessary.
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| (Section 2. 751a(a)(3))
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| preliminary determinations.
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| Furthermore, the current regulation should be revised to delete the making of Based on an increased threshold for admitting contentions, only final determinations should be made.
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| Item 17: PREHEARING CONFERENCE (10CFR2.752)
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| We do not agree with this proposed revision. If the threshold for admission of contentions is raised appropriately (Item 2), and inadmissible contentions are weeded out in the special prehearing conference, then, conceivably, all admitted contentions must either (1) merit "inquiry in depth" in a hearing or (2) be subject to sunnnary disposition. As stated in the section-by-section analysis, the proposed revision duplicates the sunnnary disposition standard and, in our opinion, is unnecessary.
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| Furthermore, because the burden is not as rigorous, there is a risk of having seemingly conflicting regulations which will add another measure of complexity to the process.
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| SOTC 4 We appreciate this opportunity to assist in the development of these revisions to the hearing process and hope that these connnents will be of use to you.
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| f.1. /!.::tr Chief Engineer, Nuclear Technology and Licensing Division JBS:LAC
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| BALTIMORE OOlKCTED GAS AND US NRC ELECTRIC
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| *AA SEP -2 A11 :42 CHARLES CENTER
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| * P.O. BOX 1475
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| * BAL Tl MORE, MJCRYLAND 21203 OFF ICE Of Sb.Ht, il\R_Y James P. Bennett OOCKETI NG 6: SUWICL Counsel BRA.NC~
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| (301) 234-5607 August 29, 1986 Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Docketing and Service Branch RE: Regulatory Reform Proposal Concerning the Rules of Practice, Rules for Licensing of Production and Utilization Facilities The following comments are submitted on behalf of the Baltimore Gas and Electric Company in response to Federal Register Notice of July 3, 1986 regarding Proposed Regulatory Change for Rules of Practice for Domestic Licensing Proceedings --
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| Procedural Changes in the Hearing Process. BG&E welcomes the opportunity to recommend adoption of the proposed regulatory amendments. The proposed changes include:
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| * l.
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| 2.
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| 3.
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| raising the threshold for admission of contentions; codifying and clarifying procedural requirements regarding discovery of information from NRC Staff; requiring utilization of cross-examination plans during licensing hearings;
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| : 4. liberalizing the use of motions for summary disposition in instances where it becomes apparent to a presiding officer that genuine issues of fact are no longer in dispute;
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| : 5. limiting intervenors' filings of proposed findings of fact and conclusions of law to issues actually placed in controversy by that party; and
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| : 6. limiting issues which an intervenor can raise on appeal to the proponent of that issue during the hearing .
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| U.S. N\JCl.&tJt R!GUlAl YC ISSION DOCKETING & SERVICE S CTION OFFICE OF THE SECRETARY Of THE COMMISS.ION Document Stafotics Postnrwlt Date CopiN ec ived
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| "~' I Copi s Reproduced Di s* ri uti n
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| If finalized, they would contribute to a more efficient licensing process for nuclear power plants. They were supported by our Company in 1984 in response to the earlier Proposed Rule, and our position on this subject remains favorable.
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| We cannot support any of the recommendations proposed by Commissioner Asselstine, however, with the possible exception of his recommendation at the bottom of the middle column of Federal Register page 24369, that notices of licensing hearings include a statement requiring petitions for intervention be filed no later than 30 days after publication of the Notice of the Hearing. While this proposal is of lesser importance to those mentioned above, it also has merit.
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| As a member of the Nuclear Utility Backfitting and Reform Group (NUBARG), our Company also supports the more detailed comments being submitted by them as well.
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| Respectfully submitted,
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| * JPB/emc
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| £'~
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| * James P. Bennett Counsel
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| DOCK[ 1U!
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| USNH C "86 SEP -2 A11 :Q5 OFF IC E Of- ~c: ,,r1t ARY OOCKEl INLi S~RVIC L BRAN CH New England Coalition on Nuclear Pollution, Inc.
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| Box 545, Brattleboro, Vermont 05301 Phone (802) 257-0336
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| ** S'~e,(l..&i'14P.'I oi;= rHG Ccikm ,c;s,0111 1 u.s .N.Q..C .
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| (NSf~AP 0£= eFF~tllN~ s0Pfo1*n f,fJ:{) fPJCoClrlf\<J.E3)v1'=A11 (0 0-l)AL.JFltD t-8\TICs, {:_CJf<.T'lftLS 11-felR Pu12,V{,1£W LIU s~cjtotv 2,7ILI-J l1t111TS 17-if;I~ SCO'f£ (/II SEK,t0AJJ2..,720+7*7'-f3)
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| (\t,./0 PlhC'~.S ARtslf~Mt.Y 613.SfAc.(ES To THL2"1k PVf<ScJ/1 ltv SeqtWJ 2 *7'11 rJ- 2,76'1..,
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| k'AWG-f\-"'()o eovrt.rs St:.AJI~ IVCJ ~oo ~,vi) l\t<Q ~E"S-UL--T 1/\I DAN~Erl"os PRECt:=.bEIV?-
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| Coa-t111,ss,fJ/Vl:>t.~ JV\OST B~ AWl'lR-ETltAT 11{t~ Rclll>'l~J() ts l/l.lTOI-F:t'?APJ...1::- ro C0MSc1MlA1&i1 e1Trz.~Ns Awo INT~!< VeNoY<.S * / .. JJ ,/;/ () J .
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| ~ t{/J,,.-J..Um Rt(, ~ox z-z.6 /l\llr.111o(CJtJoljAl.t+.
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| Educat in g the Publi c in Clean Alternatives to Nuc l e ar Power
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| llil. NUC~ REGULATORY COMMI SI N
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| .. .* l)OCKETING & SERVICE SECTION OFFICE OF THE SECRETARY Of THE COMMISS.ION
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| ,.,_ c..
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| It"-...:-
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| ~ Received
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| °:'"J ffe /t~
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| I , I
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| ~def' I Copies Reproduced _ _ d____ __
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| ilpecl.t Di,tributien
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| "86 AUG 29 P4 :52 OFF ICE Gr ~l ,_ :r ;, in DOCKET ING & SEh'ICf BRAN CH .
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| ShoO The Photographer
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| ~-7',t
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| !lh:s. NUaEAR RE'GUlATORY COMMISSION DOCKETING & SERVICE SECTION OFFICE OF THE SECRET ARY Of THE COMMIS~ION Document Statistics
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| DOCKE1 U'3 NPC "86 AUG 29 P4 :51 St t<t i
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| * H 'r
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| * 0\~b ( C lJ ~ It. OJ 9')t~
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| l - ** *.,..: .
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| . .~ ;*
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| U.S. NUCLEAR ~EGUI TORY COMMISSIOt-1 DOCKETING & SERVI CE SECT IOH OFFIC' CF THE SE .RET AR.'(
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| OF Tl-! E COMM ISS.ION Document Stat isl ic, Postmark Date tf/2~
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| CopiN lteceived Add' I Copi~s Reprod uced
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| /
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| ~----
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| =--- - ----
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| 5peciaf Di,tribution
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| JOCUl IMIIIII GIQP9lfO IULi_
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| { ~/ P/l J4-gtp5
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| @ 85 Church Street W. Newbury, Mass. 01985
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| .Oocf::.ET -#=s--~ -ffr/so-t;WOLAugust 25, 198~i\i~~hU:*
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| .86 AUG 29 p4 :so Secretary of the Commissio n U. S. Nuclear Regulatory Commission OFFICE DOC u~..(t* *~1*1.- "h 'r Washington, D. C. 20555 K[T/ N!.i l. 5;: RV lf.F Attn: Docketing and Service Branch BR ANCH '*
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| | |
| ==Dear Sir:==
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| I am writing to you re garding the series of rules which the NRC is considering in order to "improve" the licensing process.
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| It is quite clear that this administration and the present NRC Commissioners wish to remove the public from any say in the licensing proceedings for nuclear power plantS:-
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| I am opposed to these proposals in that they would rai s e
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| * admi ssions criteria for contentions, restrict the use of discovery aga i nst NRC staff, restrict the use of cross-examination during hearings, allow f or summary disposition of contentions anytime dur i ng the license proceedings and limit the scope of issues that cou l d be appealed. It is apparent that these proposals would min i mize public imput by curtailing intervenors.
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| Since when i s an appointee Commission in this country auto-nomous? It would seem that Chernobyl has had the opposite effect on the NRC; that no lesson on safety has been learned and that this commission wishes to lead this country head on to its own nuclear disaster! The increased disregard of safety and public concern i s und ermining the credibility of the NRC in the eyes of the public.
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| I object also to the short time given to the people to res-ond to these proposals. This is just another way to stifle
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| * public imput.
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| I urge the NRC not to adopt these rules that are being considered regarding the licensing process .
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| cc: Sen. Edward Kennedy Sen.
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| Rep.
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| Rep.
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| John Kerry Edward Markey Nicholas Mavroules
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| ::Jiw~
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| /.1f/~~
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| ~~~ . J~
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| ~ SEP 4 198&
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| Acknowtedged by card . *** *********.*. / ~
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| U.S. NUCL~A~ W~ULATORY COMMJSS DOCKETING & SERVICE SECTIOM OFFICE OF THE SECRET ARV OF THE COMMISSION Document Statistic:f Postmark Date CopiN Received
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| - - -/ -- - - -
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| Add' I Copies Reprod~ c ,{
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| I c* Oistri~utien fl, *//Jill,=-
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| * ~et, =
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| August 26, 1986
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| .86 AUG 29 P4 :so Julie Swiler OFFI CE Of S!:L.i,1: i HY 4800 Hwy. 7, #505 DOCK ETING<'>: SERV ICE: St. Louis Par k, MN 55416 BR ANCH Secretary of the Commission U. S. Regulatory Commission Washington D. C. 20555
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| ==Dear Secretary:==
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| I am writing you this letter to express my opposition to the proposed r ule changes of the Nuclear Regulat@ry Commission that would limit public participation
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| * in the process to licen se nuclear reactors.
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| In the past, the public has played a vital role in the system of checks and balances that is necessary for the nuclear industry. Individuals have questioned de s ign and procedures and have proposed changes and their efforts have not only made nuclear plants more safe, but have saved the industry a great deal of money.
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| Allowing the public to participate in an active manner is best for everyone .
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| Please urge the commission to keep the channels of communication open .
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| * Sincerely,
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| l.J. . NUCL AR REGUI TORY COMM(
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| DOCKETING & SERVICE SECTIO OFF ICE OF THE SECRET ARY OF THE COMMISSION Document Stati5tict Postmark Date CopiK Received
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| ' Copies Repro
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| ~J m.1-.ras.n PR
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| . . . . i!ii ~ ~
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| (lj/F~ - ~ ~- l(_,'V County of Monroe, M1ch1gan Board of Commissioners 00:}lN~IlD 106 EAST FIRST STREET, MONROE, MICHIGAN 48161 Telephone: (313) 243-7081
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| .86 AUG 29 P4 :49 RICHARD E. PETTICREW, Chairma n August 27, 1986
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| * ATTN: Docketing and Service Branch Secretary US Nuclear Regulatory Commission Washington DC 20555 The NRC has issued for public comment a series of rules that would drastically alter the role of the public and the licensing proceedings for Nuclear Power Plants.
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| The County of Monroe feels that these proposed rules would restrict the general public's input and sharply minimize their roles during licensing proceedings.
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| We feel that these proposed rule changes would not be in the best interest of the general public. None of the proposals are designed to enhance public
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| * participation in the NRC proceedings. Therefore, we feel that within the best interest of all parties concerned that the proposed rules should not be approved.
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| Thus, allowing all concerned citizens a chance to parti-cipate in the licensing process.
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| Sincerely, MONROE COUNTY BOARD OF COMMISSIONERS
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| ~c~
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| Richard E. Petticrew Chairman REP: jh cc Senator Carl M. Levin Senator Donald W. Reigle, Jr.
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| Congressman John D. Dingell SEP 4 1986 Ackn*owtedged by card.. , ***** ~
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| : u. S. NUCL{AR REGUI A TORY C6MMI S DOCKETING & SERVICE SECTIOH OFFICE OF THE SECRETARY OF THE COMMISSION Document Statistics Postmark Date CopiM ~eceived /
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| Add' I Copies Repro
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| GO lK[ f ff
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| ~ Wisconsin 's Environmental Decade US NRC 14 West Mifflin Street, Suite 5, Madisooeril&t~~ 5¥~3:4&08) 251- 7020 230 W. Wells St. , Suite 309, Milwaukee, WI 53203 (414) 272-1607 2141/2 East College, Appleton , WI 549 11 (414) 734-5403 OFF IC E Of . !: L.Kt. iAK 'I' DOCK ETING & SUNIC f BOARO BR NCH Nicholas Seay Chairman Ke n Axe Secretary Secretary of the Commission Linda Mcisaac U.S. Nuclear Regulatory Commission Treasurer Peter Ande rson Washington, D.C. 20555 Ex Olfic,o ATTN: Docketing and Service Branch Ed Klessig Jonal han Becker Kurt Luedke Dennis McG1ll1gan Re: 3 July 1986 Federal Regis t er Susan Mudd Revisions to 10 CFR Part 2 David Pos t W1ll1am O'Connor Robert Gruber 27 August 1986
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| * *Office
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| - derson To whom it may concern:
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| Presiden t Doug Brow n Enviro nme nta l I am writing to you on behalf of Wisconsin's Environmental Minstrel Decade concerning proposed rule changes in the NRC ' s process for Fran k Jablons ki General Counsel licensing nuclear power plants. We oppose such changes, believing Richelle Llsse Toxics they would greatly hinder the public's ability to voice concerns Coordinator over the necessity a n d safety of these p l ants. Specifically they Ke n Lonnqwst Environmen tal would:
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| Minstrel Donna Natwni ak Con/roller 1 . ) subs t antial l y raise the admissions criteria for con-Dianne L. Arneson Of/1ce Coordin a tor tentions by in t ervening parties (Section 2.714),
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| Janelle Pt1ne Office Assistant 2 . ) : give the NRC staff far greater c o ntrol over information Richar d L Spivey Direc tor of used d u ring the h earing b y restricting the use of discovery Administration by an intervenor (Section 2.720),
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| err Rockwe ll od Decade 3.) hinder the intervenor's ability to cross-examine
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| * kee Can vass witnesses during the licensing hearing (Section 2.743),
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| L. Chris C raw ley Educa tion Drive Assoc..,cHt:
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| Ashia Gnpen lrog 4.) al l ow for summary disposition of contentions anytime Admin ,strat,ve during t he license proceedings (Section 2.749), and Assistant Apple ton Canvass Dale Klaybor 5 . ) restrict the scope of issues being appealed (Section Education Drive 2. 762 ) .
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| Associate Ka thy Johnson Administrative While touted as "improving" the licensing process, these changes Assistant clearly favor the nuclear power industry and make it difficult for Madison Canvass Perry Rockwell significant opposing views to be aired. In the interest of fair-Educa tion Drive ness, publ i c safety, and environmental concern we request that Associate Ru1h Lewis these changes not be implemented.
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| Administrative Assistant I hope you will share in my concern. Thank you .
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| Sincerely, Kw,~
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| (Mr.) Karry Ritter Acknowtedeed bv cari. :....
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| . NU R REGULATORY c6MIA($~
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| DOCKETING & SERVICE SECTIOM OFFICE OF THE SECRETARY OF THE COMMISSIOl'-4 0ocu"10 f "
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| m D *e ~
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| I 4
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| i)r 9,/~d; ~/4.sr~dl
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| 314 NOR TH BROADWAY - SU I TE 1830 JO HN R . G R E EN. II ST. Louis . Mo . e310286 AUG 29 p2 : s f f VERALL & JUOS O N - 18 7 7 JUDSON & GR E E N -1900 LEWIS C . G REE N JU DSON . GREEN . HENRY & REMMERS - 1929 T E L EPH O NE (314 1 23 1 -4 18 1 GR E E N . HENN I NG S. HE N RY & ARNDLD - 19 65 OF FIC E C 1
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| :* .:-~ ,.. < t *<'
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| August 26 1 gg(90CKE1 INC,.-. 'A.,,, ,/if:f cAe L E A DDREss
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| , BRA NCH JUDGREEN Secretary of the Commission U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Attention: Docketing and Service Branch
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| | |
| ==Dear Sir:==
| |
| | |
| Re: Proposed Rules to Limit Public Participation in Licensing Proceedings for Nuclear Power Plants These proposed changes would make a mockery of the hearing process.
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| : 1. Section 2.714. This change would force the intervenor to spell out all the details of its case before it has obtained the reports, opinions, and other documents which are to be chal-lenged, and before it has had any discovery. This is so o bviously nonsensical that it is probably a denial of due process of law.
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| There is nothing like this anywhere in the judicial process, or anywhere in our legal traditions .
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| * 2. Section 2.720. The existing rules insulate the NRC staff from discovery far more than is desirable. If the public is going to participate effe c tively, the public must have the right to compel the staff to explain and justify its position.
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| Only after that is done can the explanation and justification be effecti v ely challenged or discredited. The pr oposed rule would eliminate the ability of the public to require the staff to come forth with its explanation and justification. Th e proposed rule would thus make the hearing a pseudo-hearing, a Hamlet without a Hamlet. The proposed rule squarely conflicts in principle with the unbroken line of decisions of the Supreme Court which require that an administrative ruling be clearly supported by its ration-ale.
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| : 3. Section 2. 74 3. Cross-examination is the essence of any meaningful hearing. It shoul d be available at all times, with respect to every witness. The proposed rule would make cross-examination discretionary with the hearing judge, and would re-quire that any application for permission to cross-examine be
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| _ SEP 4 1986 t/,
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| Acknowtedged by card .* ,,:;:,, *** ¥1010,itit
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| Iii, . NU<.LE.AR R GUI f( ,l<V <..QMMI i ~
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| OOCKETING & SERVICE SrCTIOl'-4 OFFICE OF T!-4E SECl?ETARY If.Ir TH GOMM1S~IOH slmerk Oafo ~p.6/f~
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| ftIbd, op1e1 Roe.ii vttd /
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| ":.~~ ';;:::b,::;, ~ ~/Js,
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| ,~J~
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| | |
| GREEN , HENNINGS & HENRY August 26, 1986 Page 2 accompanied by details which could not possibly be furnished. It is nothing more than a poorly disguised effort to protect the staff and the utility witnesses from any meaningful probing of their testimony.
| |
| : 4. Section 2. 749. The orderly process of any major liti-gation requires a substantial period immediately before trial for preparation, without being deluged with motions and briefs filed by the parties with unlimited resources. This proposal would permit the utilities to bury the intervenors with a paper bliz-zard which would prevent the intervenors from preparing for trial.
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| Further, in al lowing motions for summary disposition before or during discovery, the proposal fails to make explicit the proposition that such motions should not be granted before the responding party has had an adequate opportunity for discovery.
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| : 5. Often an intervenor will not place in contention an issue which is being pressed by another party. However, if the other party thereafter fails to pursue the matter, the interested intervenor should have every right to pursue the matter further.
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| There can be no prejudice to any party in this procedure. The proposed rule appears to be nothing more than another piece of the pattern to preclude effective public participation.
| |
| Summary These proposed rules are a transparent effort to deny effec-tive public participation. They would make a mockery of the hearing process. In so doing, they would further endanger the public safety. The proposed rules should be rejected.
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| ,?
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| Very t ruly urs,
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| "/ / ? .,.
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| :, 4P'/Y
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| </ /~:?~ /
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| ,?~/ ;1/ ,;;;'
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| ,,:: ~ ~ _;,.s/ C. Green
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| /
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| \ .
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| | |
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| ~PR- J759D*u:
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| r_$1 Fi J.4J~
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| DOCKET Er:
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| US NRC -2
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| .86 AUG 28 P3 :31 OFFI Cco SE*~ - ti'AHY DOCK ETIN G & SE VHT NUCLE:~.;tl CJtEGULATORY COMMISSION 10 CFR Part 2 Rules of Practice for Domestic Licensing Proceedings--
| |
| Procedural Changes in the Hearing Process AGENCY: Nuclear Regulatory Commission.
| |
| ACTION: Extension of comment period .
| |
| | |
| ==SUMMARY==
| |
| : On July 3, 1986 (51 FR 24365) the NRC published for public comment a notice of proposed rulemaking regarding amendments to its rules of practice to improve the hearing process. The notice provided that the comment period would expire on September 2, 1986. The Nuclear Information an d Resource Service has requested a ninety-day extension in the comment period. The NRC has determined that the proposed rulemaking is not sufficiently complex to warrant the full extension requested. However , in view of the importance of the proposed rule and the desirability of obtaining
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| * me aningful public comments, the NRC has decided to extend the comment period for an additional forty-five ( 45) days .
| |
| DA TES: The comment period has been extended and now expires October 17, 1986 . Comments received after that date will be considered if it is practicable to do so, but assurance of consideration can be given only for comments received on or before that date.
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| | |
| I ADDRESSES: Send written comments or suggestions to the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, D. C. 20555, Attention: Docketing and Service Branch. Comments may also be delivered to Room 1121, 1717 H Street NW., Washington, D.C. between 8:15 a.m. and 5: 00 p. m. Copies of any comments received may be examined at the NRC Public Document Room, 1717 H Street NW., Washington, D. C.
| |
| FOR FURTHER INFORMATION CONTACT: Linda S. Gilbert, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, D. C.
| |
| 20555, Telephone: (301) 492-7678.
| |
| Dated at Washington, D.C. this J-7 "
| |
| .- day of August, 1986.
| |
| Commission.
| |
| cretary o
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| | |
| Linda Schelling Rd. Box Lf-16 DOCKCTE : 1 US NHC Olyphant t Pa.
| |
| 18447 "86 AUG 28 Pl2 :34 August 26,1986 OFFI CE OF Sf_, r-'.l Tl,P u .s . Nuclear Regulatory CommissioiOCKETING &: S[ RVICf BRANCH Secretary of the Cammiss.ion:
| |
| Re: Federal Register Vol.51, No.128 10 CFR Part 2 Proposed rule I find nothing in the proposed rule changes that would
| |
| * "IMPROVE" licensing procedures; instead, I see an attempt to hurry things along to facilitate failing industry.
| |
| An industry that cannot contain its wastes . (the most deadly poisons known!) must not be lieensed ever again.
| |
| The relaxed requirements that the RRTF gives to the NRC staff places the burden of research of .the NRC position upon the party raising the interrogatoriesl(10 CFR 2.720)
| |
| DISCOVERY AGAINSTNRC STAFF,item 3.
| |
| The NRC staff should provide written answers to inter-
| |
| -rogateries.
| |
| As all of the RRTF proposals seem to aim at ma.king .the
| |
| * NRC and the nuclear industry less and less responsible, I propose that none of the ameneents be adopted.
| |
| Sincerely, AUG 2 9 198 Acknowte<i<<ed by c:ard * * * * * * * * * * * * * ***
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| : a. l NUCt.Mt RtCUlATOltY COMMISSI08 DOCKETING & SERVICE SECTION OFFi('i: - r.F* 'flir~EC'.TiE't:AltY-O F T'*' E c~i.\-fa.s.rOfll:>u ,. rll Postmark Copi8'
| |
| ~d' I 1 Special D
| |
| * COWIOH SENSE RD.l BOX 398 DOC KCf f;.f+ ,
| |
| US Nffrtr.uYPHANT, PA.
| |
| 1844?
| |
| AUGUST 25
| |
| * 1986 116 AUG 28 Pl2 :34 U.S.NUCLEAR REGULATORY COMMISSION OFFICE CJF Sr. *,i\ UAR Y WASHINGTON D.C. DOCKET ING & S[R VICf BRA NCl-i .
| |
| SECRETARY OF THE COMMISSION:
| |
| RE: FEDE;aA~ REGISTER VQL.51, N0.128 10 CFR PART 2 PROPOSED RULE AS A CITIZEN' S ORGANIZATION, WB FIBD THE PROPOSED CHANGES OUTRAGEOUS:
| |
| EASING THE REQUIREMENTS OF AN ALREADY IRRESPONSIBIE INDUSTRY.
| |
| VUTUALLY .ELIMINATING ANY CRITICISM AND THE PROCESS OF DISCOVERY (10 CPR 2.720)
| |
| SUCH A MECHANISM(AS THIS PROPOSAL DA.RES TO PRESENT)WOULD UNDERMINE PUBLIC PARTICIPATION, GIVING NRC STAFF AI:iD PRESIDING OFFICER DICTATORIAL POWERS;TO ANSWER ONLY WHAT THEY CHOOSE TO ANSWER; AND TO DEFER RESPONSIBILITY BY DELAYED RESPONSE.
| |
| COMMOli SENSE DEMANDS THAT NONE OF THE PROPOSED CHANQES BE ALLOWED.
| |
| IF CHANGE BE MADE: .ALLOW ~ :DW LICENSING UNTIL NUCIEAR INDUSTRY PROVES RESPONSIBLE FOR RADIOACTIVE WASTES I IF CHANGE BE MADE: WRITE THE RULES IN PLAIN ENGLISH, SO THAT MEANING IS NOT OBSCURED, INTENT NOT HIDDEN.
| |
| IF CHANGE BE MADE: SIMPLIFY AND MAKE ANSWERABLE: THOSE WHO PROFIT BY-TO THOSE WHO SUFJ'ER FROM THE EFFECTS OF .R.iDI TION.
| |
| WE HAVE BORROWED AGAINST THE PAST, BURNING FOSSIL FUELS; A REDWABLE RESOURCE; NUCIEAR POWER BARGAINS AGAINST THE ODDS OF OUR CHILDREN'S FUTURE, AND THEIR CHILDREN'S :FUTtJREs *** .MANKIND!S FUTURE.
| |
| fLoJ:LY, J V JOHN OAKES GO.MJION SENSE
| |
| ~
| |
| 1 by card.~~~-.~.~ *.~:..-d
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| _..._.. IWL6c ~' g,,-J THREE MILE LAND ALERT, INC.
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| 315 Peffer St .. Nlrri1ll111, P1111. 17102 DOu\tV!133- 7897
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| .86 AUG 25 Pl2 :QS Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Mr. Secretary, In the last seven years Three Mile Island Alert (TMIA) has
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| * been involved in numerous public hearings as an intervenor before the Nuclear Regulatory Commission (NRC) and its adjudicatory arm the Atomic Safety Licensing Board (ASLB). We participated in hearings concerning safety, managerial and technical issues at Three Mile Island (TMI). Although these hearings rarely produced an outcome beneficial to the people of central Pennsylvania, they did provide a necessary and invaluable public forum .
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| * Our group was formed in 1977 after the construction of TMI Unit- 1 and Unit-2, and the licensing of Unit-1. Had we had enough insight to anticipate the accident at TMI, surely we would have been i nvolved in every facet of the hearing processes surrounding TMI ' s construction and licensing. This is not to say that we are naive enough to believe that our participation in either the construction or licensing hearings would have militated against the start up of Unit-1 or Unit-2. Rather the value would have been in broadening the scope of the debate concerning the use of nuclear power in our community. Unforunately only a few
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| ~~<7g tr . AUG 2 8 1986 e, 5)- eafd ...* *-..--* ***** ,** ~
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| 'J
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| t, r,
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| )'ORY COMMISSION ET G & SE~VICE SfCTlbN
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| :oFFta OF THE s~ * "t iv OF lHE COM,-A t:;sioN Dor.ument Statistics
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| ~pi* ltece1ved I
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| [Add' f Cop,--$ o rodua,d frit Oittfibufion
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| individuals had enough insight to recognize the inherent dangers of nuclear power production and intervened in the licensing/ construction hearings on Three Mile Island . The rest of the community learned of the managerial, technical and safety problems at TMI during the accident in March 1979. We learned the hard way .
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| * Many communities are being "asked", or will be "asked", to house a nuclear power generating station. These communities d*on ' t have to learn the "hard way"'. Unlike the situation in our commu nity during the construction and licensing phases, many Americans now have genuine and legitimate concerns about nuclear 1
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| power. Obviously th~ Commiision's record as a regul~tor, and 2
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| the industries ' record as an opeiator, has only ~erved to exaspe rate existi ng doubts. Common sense would dictate that the
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| * Commission make its lice~sing process more open and accessible to the public so that their concerns can be adequately addressed. Unfotunately the Commission is moving in the opposite direction .
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| If the Commission moves ahead and implements any number of th e revisions to 10 CFR Part 2 it would be a substantial step 1 NOTE: A recent Media General- Associated Press poll found that 56 % of Americans believe that the federal government is doing a fair to poor job supervising nuclear power plants.
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| 2 SOURCE: Critical Mass Energy Prqject,Nuclear Power Safety Report, 1979 -1985, Washington, D.C., 1986.
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| toward complete insulation and isolation from those citizens who live near, or work by, a nuclear power plant. The following sections are particularly disturbing.
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| Section 2.714 - Admission of Contenions - This proposed rule makes it more difficult for intervenors to gain acceptance of
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| * their contentions. The intervenor is forced to argue specific sections of the license application, and then document sources and qualified opinions to substantiate their contentions. Yet NRC repor t s and comments are usually not . available thereby limiting the intervenors ability to bring important information foward. As it stands, the potential intervenor must list the issues he/ she wants to litigate and then state the grounds for each contention.
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| To increase the level of admissibility of contentions would saddle intervenors with an inordinate burden .
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| Section 2.720 - Limits on Supoenas and Discovery Against NRC Staff - Currently the NRC staff can be asked by the lic~nsing judge to qualify its position/conclusions, and if their reasoning is unsound they may be asked to conduct additional tests / research. However, if this propo~ed rule change is implemented, interrogatories could be used only to obtain the -
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| sources relied on by the staff. This would encumber the intervenor with
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| additional r~search, and also prevent important information from being. released.
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| Section 2.743 - Cross-Examination During Hearings - This proposal stipulates that parties obtain p~rmission from ~he . hearing judge in order to cross-examine'witnesses. The written submittal would be accompanied by a d escript ion of issues and objectives, and also the proposed line of questions, together with anticipated responses. Although all parties are effected by this rule change, intervenors would be disproportionately penalized since they rarely have the requisite staff/resources necessary to submit direct testimony .
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| Section 2.749 - Motion for Summary Dispostion Allowed at Anytime
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| - This proposed rule would allow motions of disposition at any
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| * time. This proposal opens the door for harassing motions that would siphon off valuable resources from the intervenor.
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| Section 2.762 - Proposed Findings of Fact, Conclusions of La~
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| and Appeals must be confined to issues ~hich the intervenor alone placed or sought to place in contention - This proposal obviously prevents the intervenor from par ticipating in all issues that may arise during the licensing hearing.
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| These proposals advanced by the Nuclear Regulatory Comrnissuion would greatly curtail public participaton in the licensing process, and would have a direct impact on other NRC proceedings such as standardized design approvals, site selection and combined construction permits / operating licenses .
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| * The adjudicatory process set up by the NRC is already weighted in favor of the nuclear industry. Yet through sheer persistence and determination many concerned individuals and citizens groups have been able to raise and document mumerous design and safety problems . at nuclear power plants. Intervenors play an invaluable role in the licensing process, without them who would have brought o~t the flaws at Comanche Peak? Fermi?
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| Zimmer? Marble Hill? Diablo Canyon?
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| * To implement these rule proposals, and allow the nuclear industry a greater role in policing itself, defies the reality of the industry ' s record of poor plant management, operation and constru ction. Why not continue to utilize the best and most efficient safety mechanism the industry possesses - public scrutiny? Isn ' t time we gave the public, and not the industry, the benefit of the doubt?
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| s;fw/lh/JX~
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| Eric E~ Spokesperson, TMI-Alert 315 Peffer St.
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| Harrisburg, Pennsylvania 17102
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| ~ NUM8lH
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| HOUSE OF REPRESENTATIVES OO(;KETEO STATE HOUSE, BOSTON 02133 USNRC 1J6 AUG 25 P1 :39 BARBARA A. HILDT 1 ST ESSEX DISTRICT Off /(., ~,. ~ , . Commillees on 24 BELMONT STREET OOCKETYNG ~\ 's'},}~~ fural Resources ~nd Agriculture AMESBURY , MA 01913 BRANC H
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| * Education TEL . (61 7) 388-364 7 Human Services and Elderly Affairs ROOM 473F. STATE HOUSE TEL. 722-22 I 0 August 20, 1986 Secretary of the Commission U.S. Nuclear Regulatory Commission
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| * Washington, D.C. 20555 Attn: Docketing and Service Branch
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| ==Dear Mr. Secretary:==
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| I am writing to voice my strong opposition to the proposed rules regarding the role of the public in licensing proceedings for nuclear power plants. I oppose the regulations for a number of reasons, all of which I believe must be taken into account if the Commission is to make a just decision on whether or not to adopt the rules.
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| First, the regulations make it harder, and in some cases virtually impossible for intervenors to prepare their cases since many NRC documents are unavailable to them. Second, those regulations which limit the freedom of an intervenor to question the basis of such information as the conclusions of NRC staff, and to engage in cross-questioning of witnesses, forces the intervenor to go to prohibitive lengths to research and prepare direct testimony before the hearings even begin. To me, forcing interve-nors to submit proposed testimonies in order to be allowed to participate in certain parts of a hearing seems to fail to succeed in anything but discouraging open debating practices.
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| Third, the allowing of summary disposition at any time in the hearing process removes the protection that intervenors currently have against having their contentions dismissed prematurely.
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| Finally, the proposed limits of the number of issues that the intervenor may engage in unnecessarily keeps him or her from airing all concerns. The proposed recommendations are, I believe, a serious and unfair attack on the rights of intervenors in licensing procedures.
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| The purpose of licensing hearings is, or should be, much like that of any courtroom trial: to ensure that the verdict reached is based on information that is as complete as possible.
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| Such a decision cannot be made without consideration of all
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| : 1. fMaiti ~~fflft cOMMtSStett
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| , * , ll)()GKF'l't,1G & SERVICE SECTION
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| ()FflCE OF THE SECRET ARY OF THE COMM! c "I
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| ~ .
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| viewpoints, even if they are in opposition to the defendant. The proposed regulations would, if implemented, severely stifle the voice of intervenors who wish to provide the NRC with information and insight to be used in the licensing decision.
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| I am concerned that the public, whose safety is at stake in the licensing of nuclear power plants, will be deprived of their legal voice if the proposed regulations are adopted.
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| I do not believe that power companies should be given the authority to decide whether or not the public will tolerate a nuc l ear power plant's operat~on.
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| I am especially concerned about citizens' rights to engage in dialogue with NRC officials with regards to Radiological Emergency Response Plans. Any evacuation plan's success, after all, is dependant upon the affected population's cooperation with civil defense officials. Without this cooperation, the plan is useless .
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| The decision on whether or not to grant an operating license to a nuclear power plant should reflect the NRC's commitment to ensur i ng public safety. Under no circumstances should a plant be licensed when it does not have the support of those people who l i ve around it.
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| The public must be guaranteed their right to participate in licensing procedures. Any action taken to change existing regulations regarding public access to hearings should expand, not restrict even further, an intervenor's rights.
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| Thank you for your attention to this matter. I trust that you wi ll consider seriously the comments of the public on this proposed change of regulations.
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| I f I may be of any further assistance, please do not hesitate to contact me.
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| Sincerely, BARBARA A. HILDT State Representative BAH:lch
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| .., v*;QFFICt4JF :t t...11.t !AH Y OOCK tTiN G&: SEflV ICf.
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| r fM.1.- NUCIMl iaoutA,an' Cc,MMISIKII .
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| DOCKETING & SERVICE SfCTtOt!I ~
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| OFFICE OF THE SECRETA~Y, OF THE COMM ISSION
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| U.S. NUC ll fWC(J(.Afot" COMMt DOCKETING & SERVICE SfCTIOt4 OFFICE OF THE SECRET A. '(
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| Of THE COM'A' Postmar r Cor*
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| oocKUE.P eter R. Mitchell 121 Edgerton St.
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| USNRC Rochester, N. Y. 14607
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| *86 f\UG 21 P2 :21 August 14, 1986 Secretary of the Commission .
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| U. s. Nuclear Regulatory CommiSePAOc. OF SlCti\i.'tiH:
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| Washin&ton, D. C. 20555 OOCKE11i1*ci Attn: Docketing and Service Branch 8
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| ==Dear Secretary,==
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| I wish to comment on the NRC proposed rule changes ef f ectiug the participation of intervenors in licensing proceedings for nuclear power plants.
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| An~****** honest appraisal of the history of intervenor participation in licensing hearings shows that members of the public have cansistently raised and pursued vital safety issues that the NRC itself has overlooked. Whether if be the consideration of class 9 accidents, reactor vessel embrittlement and premature aging of vital comp0nents, or serious problems and questions regarding the ECCS (many which were buried in NRC files), it has been the public participants that have been on the cutting edge. If you do not accept this premise outright ) (and some of you may not), a comprehensive review of NRC history and public participation should lead you to it.
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| A second observation that seems vital to your decisions on rule changes is that the likelihood of serious nuclear plant accidents is increasing each year as existing plants age and become more susceptible to au:i.liada mishaps and component failures.
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| Chernobyl gave us some indication of the potential damage and da er we face.
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| In such a climate it become all the more important that concerned citizens and groups be given the fullest possibility to contribute to safety concerns and be of assistance to the NRC so that a Chernobyl never happens here.
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| )
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| In the context ~f the above observations, I find it incredulous that the NRC is contemplating making it harder to intervene in a licensing hearing, imposing limitations on the scope of participation by intervenors , and allowing motions for aismisal of contentions at anytime. Is it your intention to seti usly curtail citizen participation] You wil l do just that if you make it more difficult to raise contention!
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| limit supoenas and discovery against the NRC Staff, make the use of cross-examination Acknowtectge<1 by cant. AJJ~**~ .& . ~
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| Of Tm :,:,....
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| o ~ r l r"""~I t A
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| a matter of special pennission only, permi t.Nag- moti ons for summary disposition at anytime, and prevent wig intervenors from partici pating an all issues in which he/she hasx an interest. Invoking the above restrictions might streamline and shorten the licensing process. It will also hamper and restrict those at the fore-front on nuclear safety, the public intervenor. What would that say about the NRO mandate to promote the public heatth and welfare in nuclear matters?
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| 1 ly
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| . S. NUCLEAR REGUt ATO~t COMM!SSfOII Date ET/NG & SER.VICE SECTION 0FF/('F Qt: TH/! <:~CRfT .<\RY OF 'rHE COMµ 1~-s10~
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| Oocurn*nl Stat111/c1
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| ,:,ts -~"l~roduced i$frlhut/on -----------
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| DOC KETED USNRC THE CONSERVATION COUNCIL OF NORTH CARO~AIG19 A11 :58 307 Gra nvi lle Road, Chape l Hill, N.C. 27514 OFF ICE OF S( l~t\ t. TAh y (919) 942-7935 or 942- 1080 (24 hours ) OOCK ETlt Li & SERVlr.F BRANCH August 15, 1986 Secretary of the Connnission U.S. Nuclear Regulatory Commission Washington, D.c. 20555 Attn: Docketing and Service Branch
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| * Re: Proposed Revisions to 10 C.F.R. Part 2 (FR, July 3, 1986)
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| | |
| ==Dear Sirs:==
| |
| | |
| It has come to our attention that the NRC is proposing to revise 10 C.F.R. Part 2 with the purpose of sharply limiting public participation in nuclear plant licensing proceedings. Since the early 1970's, the Conservation Council of North Carolina has intervened in both the construction permit and operating license for Shearon Harris Nuclear Power Plant (Carolina Power & Light) and we strongly urge you not to make the process even more a sham than i t is already.
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| The entire licensing process is overwhelmingly skewed to the benefit of the Applicant, with the NRC Staff in most instances taking an active role supporting the Applicants in discouraging all public involvement. If you will review the history of the plants which have been cancelled, indefinitely postponed, or have had licenses denied, you will see that second to the finances involved, safety issues first proposed by Intervenors are the major cause. The ability for concerned citizens to bring forward issues concerning the environment, safety, safeguards, emergency planning, and management has so far greatly enhanced the process rather than detracted from it.
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| Specific comments on the proposed rules:
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| : 1. The proposed rule dealing with the admission of contentions (Section 2.714) unreasonably raises the threshold for admissibility of contentions. Repeatedly we have found out that contentions -which were denied because of lack of specificity and basis have later proven to be major flaws in the plant. Access to NRC reports and connnents, along with discovery of Applicant records and personnel, is usually necessar y. to bring a contention to the point where it can be litigated fully. It appears to us to be against the very grain of administrative procedures to so drastically cut back on public input in such an important area as plant licensing.
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| 1 AUG 2 1198&
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| Acknovvt~ by card.~.::,', ** "' .,"file~
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| NUCLP 1)00''
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| 0
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| **' ('OMMISSION
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| - ~ECTION
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| \ .lY JI~
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| ark r,
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| : 2. The NRC staff is a major party in the licensing hearings and needs to be held accountable for its actions in licensing a plant. Its findings, investigations, and conclusions should not be as completely limited as in the proposed Section 2.720. The present process is to have three equal parties presenting their positions before an adjudicatory panel although in reality the NRC Staff usually taking an identical position to the Applicants. Without the full opportunity for intervenors to question it, the Staff's position could not ever be challenged. The decision woul d then be up to the Staff and not the Atomic Safety and Licensing Board.
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| : 3. Cross-examination of witnesses is one of the cornerstones of our judicial system and crucial in obtaining "full and true disclosure of the facts" as required by the Administrative Procedures Act. Proposed Section 2.743, requiring permission for cross-examination from the Board before the hearing, is a blatant attempt to limit the hearing record to Applicant and Staff positions who have the resources to file extensive direct testimony.
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| This additionally violates the National Environmental Policy Act requirements for a full consideration of all of the environmental impacts of the decision to license the plant. 42 u.s.c. Section 4332 *
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| * 4. Proposed Section 2.749 would allow the Applicants, with Staf f support, to move for summary disposition at any time. This is patently unfair to most Intervenors who often rely on volunteers and do not have the full legal resources available to the Applicants. For example, in the operating license stage, the Conservation Council has spent approximately
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| $24,000 while the Applicants' Washington, D.C., counsel has billed Applicants over $10 million (which does not include in-house counsel). This inequity of resources will be further unbalanced if Applicants can make motions at all time, drawing Intervenor resources from other matters.
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| : 5. As opposed to proposed Section 2.762, proposed findings of fact and conclusions of law and the appeal process need to remain open to all matters raised by all Intervenors and the Staff, not just for the issues raised by that particular Intervenor. Often, an Intervenor does not participate fully in raising an issue that it is deeply interested in knowing that another Intervenor is raising that issue. If the first Intervenor lacks the
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| * resources to bring the matter fully before the Licensing Board or appeal the matter, the other Intervenors would not be allowed to. This proposed rule requires an Intervenor to adopt all contentions by all other Intervenors in order to protect the ability to participate at hearing or appeal.
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| In conclusion, the proposed "licensing reform" rules are a pure and simple attempt to make meaningless public participation through intervention. There is not one instance of the hearing process unjustifiably delaying plant licensing, although there are documented instances where serious safety and environmental issues were raised by intervention. The rights of the public must be protected.
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| Sincerely,
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| ~~General Counsel 2
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| Aug 3 -86 E Neme thy, Sec 'y "86 rtUG -7 PiE!l2 Proposed rule -Changes in Hearing Process Sec'y - NRC Fed Reg July 3-86, p 24365 OFF IC E Of- Sr. ,~ t<t. 1AW'f Wash, DC 20555 DOCKETIN G & S[fWI Cf.
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| BRAN Cl-1 ATT: DOCKETING & SERVICE BRANCH Gentlemen=
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| We feel your proposal to require intervenors to show factual support for their contentions is fair and reasonable. As you point out, it would sharpen the issues in dispute, and would s ave time, effort and money by disposing promptly of frivolous contentions.
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| We think Commissioner Asselstine's proposal - that an inter-venor's standing be established before he submits contentions -
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| makes eminent good sense.
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| Why make someone go thru all the effort of dra f ting contentions, if it's later ruled he has no standing?
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| We agree with Mr Asselstine's proposal that publishing notice of receipt ot an application - on receipt, rather than when it's docketed - is a good idea. What would the NRC lose by doing so?
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| * Re: the 3Q-day deadline for filing petition to intervene, or a request for a hearing - fine, provided your notice goes out promptly. (Several times we've rec'd Fed Reg notices of pro-posed rules just 4 or 5 days before your deadline for comments).
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| Perhaps a 45 day deadline would be more ~qui table.
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| Mr Asselstine's proposed 90 day deadline for filing contentions, once a petitioner's standing has been established, seems fair and reasonable. However, if the issue is a complex one, and the petitioner has been hampered by bureau-r N~
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| ratic roadblocks in getting the support-
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| \ ng facts he needs, we suggest a 30 or 6 day extenstion be granted, for good Acknowledged by card . *~;;:;;;;;;.~~
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| b MIOIN ll!GUI.ATORY COMMISStOfol focKETING & SERVICE SECTION OFFICE OF THE SECRET AR:Y OF THE COMM 1SSION
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| Nuclear Information and Resour~eA §ertl&
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| 1616 P Street, N.W., Suite 160, Washington, D.C. 20036 (202) 328-0002 OFFt cr: or , ~
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| DOCKETING \ S[!~!A~ 'y BRANCH HV/Cf_
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| August 5, 1986 Mr. Samuel Chilk, Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555
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| | |
| ==Subject:==
| |
| Licensing Proceedings, 51 Fed. Reg. 24365
| |
| | |
| ==Dear Mr. Chilk:==
| |
| | |
| I am writing in regards to the public comment period set for proposed changes to 10 CFR Part 2, "Rules of Practice for Domestic Licensing Proceedings." A comment period of 60 days, beginning July 3, the date of issuance, is an unfair and inadequate time constraint to the many grassroots organizations NIRS works with.
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| Many of our organization's members are on vacation during the summer months. Since the rule would drastically alter the rights of the public to participate in license hearings, the public must be given adequate time to consider and respond to this proposed rule.
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| The proposed changes will have serious long-term effects for plant licensing. A very conservative and deliberate approach should be adopted in considering this rule.
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| I hope you will view this request favorably and extend teh comment period an additional 90 days.
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| Thank you very much for your consideration.
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| Beatrice Trapasso Research Coordinator
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| U,I. u LW REGULATORY OOMMi~$,OS DOCKETING & SERVI CE SECT ION OFFICE OF THE SECRETARY OF Tf-lE COM~>tlSSION
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| I' *es Commonwealth Edison -
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| &JeCIU NNlllt One First National Plaza, Chicago, Illinois Address Reply to: Post Office Box 767 Chicago, Illinois 60690
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| * 0767
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| { It'/
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| IIIUi
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| ~~
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| p '.;
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| A:, _,/.,,,,. ,3 DOCKETED USNRc July 9, 1986 Mr. Samuel J. Chilk, Secretary U.S. Nuclear Regulatory Commission 1717 H. Street N.W.
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| Washington. DC. 20555 Attn: Docketing and Service Branch It
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| | |
| ==Subject:==
| |
| Proposed Rule: Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process
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| ==Dear Mr. Chilk:==
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| This provides Commonwea l th Edison Company's ( 11 Edison 11 )
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| comments on the above - referenced proposed rule. In general. Edison supports the Nuclear Regulatory Commission's ( 11 NRC 11 or 11 Commission 11 )
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| actions to rationalize the hearing process. Accordingly. Edison supports. for the most part. the proposed simplifications of hearing procedures. However. Edison does not support changes which would lengthen the hearing process or deprive participants of due process rights. As discussed below. two of the proposed changes would have such effects. Accordingly. they should be modified as suggested in the Attachment .
| |
| * 1. The proposed amendment of 10 CFR 2.720. discovery against the NRC staff. would limit the scope of interrogatories to NRC personnel under 2.720(h)(2)(ii). That provision as amended, would preclude questions requiring the staff to explain why alternative data, assumptions and analyses were not used if they were not relied on by the NRC staff.
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| Such a question in an enforcement proceeding could go to a central issue. For example. in contesting a civil penalty for alleged inoperability of a system.
| |
| the staff's refusal to consider an operability analysis by a contractor could be significant.
| |
| Therefore. litigation of that issue could be protracted if the staff were not required to address it during discovery. To prevent such unexpected negative effects of this proposal. Edison suggests the addition of an exception for enforcement proceedings.
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| 1 Oil. N\JCU!IM IIIIGUtATOltY COMMISSIOO DOCKET ING & SERVI CE SECT ION OFFICE OF THE SECRETARY OF THE COMMISSION
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| <I
| |
| : 2. The proposed amendment to 10 CFR 2.743. evidence. to require permission of the presiding officer to conduct cross-examination based on an approved cross-examination plan. does not apply to proceedings under Subpart B of Part 2 for proceedings to modify.
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| suspend or revoke a license. This implies that no exclusion from the proposed modification was intended for proceedings on civil penalties. If that was the intent. it violates due process. There is nothing about a proceeding on a civil penalty which makes it any less prosecutorial than a proceeding to modify.
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| suspend or revoke a license. Accordingly. the exemption to the proposed amendment to 2.743 should be modified to include proceedings on civil penalties.
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| Moreover. the proposed exemption in 10 CFR 2.743(b)(3) does not appear to accomplish its intended goal because 10 CFR 2.743(a) as proposed to be amended does not provide for cross-examination except in accordance with proposed 10 CFR 2.743(b)(2). This deficiency can be remedied as suggested in the Attachment.
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| Sincerely.
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| Dennis Farrar
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| /klj 1860K
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| ATTACHMENT Proposed Additions are Underlined 2.720(h)(2)(ii)
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| In addition. a party may file with the presiding officer written interrogatories to be answered by NRC personnel with knowledge of the facts designated by the Executive Director for Operations. Upon a finding by the presiding officer that answers to the interrogatories are necessary to a proper decision in the proceeding and that answers to the interrogatories are not reasonably obtainable from any other source. such as from the commission's Public Document Room or local Public Document Room. the presiding officer may require that the staff answer the interrogatories. such interrogatories may seek to elicit factual information reasonably created to the NRC staff's position in the proceeding. including data used. assumptions made. and analyses performed by the -NRC staff. Except in enforcement proceedings such interrogatories may not. however. be addressed to. or be construed to require: (a) reasons for not using alternative data.
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| assumptions. and analyses where the alternative data. assumptions.
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| and analyses were not relief on in the NRC staff review; or (b)
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| Performance of additional research or analytical work beyond that which is needed to support the NRC staff's position on any particular matter. In enforcement proceedings, interrogatories may address the staff's reasons for not using alternative data, assumptions and analyses relied on by the licensee and may require the staff to perform additional evaluations using that alternative data, assumptions and analyses_
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| 2.743 (a) General. Every party to a proceeding shall have the right to present such oral or documentary evidence and rebuttal evidence and to conduct cross-examination either in accordance with an approved cross-examination plan that contains the information specified in paragraph (b)(2) of this section or in accordance with paragraph {b){3), whichever is applicable. such cross-examination as may be required for full and true disclosure of the facts.
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| (b) Testimony and cross-examination. (1) The parties shall submit direct testimony of witnesses in written form. unless otherwise ordered by the presiding officer on the basis of objections presented. In any proceeding in which advance written testimony is to be used. each party shall serve copies of its proposed written testimony on each other party at least fifteen (15) days in advance of the session of the hearing at which its testimony is to be presented. The presiding officer may permit the introduction of written testimony not os served. either with the consent of all parities present or after they have had a reasonable opportunity to examine it. Written testimony must be incorporated in the transcript of the record as if read or. in the discretion of the presiding officer. may be offered and admitted in evidence as an exhibit.
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| (2) Any party seeking an opportunity to cross-examine shall request permission from the presiding officer. the presiding officer shall not consider any request to conduct a cross-examination unless the request is accompanied by a cross-examination plan that contains the following information:
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| (i) A brief description of the issue or issues on which cross-examination will be conducted; (ii) The objective to be achieved by cross-examination; and (iii) The proposed line of questions that may logically lead to achieving the objective of the cross-examination. together with the postulated answers which might be reasonably anticipated.
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| The dross-examination plan may be submitted only to the presiding officer and to the members of the Board and must be kept by them in confidence. The presiding officer shall include each cross-examination plan and any order relating thereto in the record of the proceeding certified on appal.
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| (3) Paragraphs (b)(l) and (2) of this section do not apply
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| ' to proceedings under Subpart B of this part for the modification.
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| suspension. or revocation of a license or the imposition of a civil penalty.
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| 1860K
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| | |
| NUCLEAR REGULATORY COMMISSION DOCKfT£D USNRC 10 CFR Part 2 Rules of Practice for Domestic Licensing PL~~ ~8 :SS Procedural Changes in the Hearing0JJ~c--
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| ,. oocxtru~c/'t~1tTAR~
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| DRAN,::11 f?V/r:f.
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| AGENCY: Nuclear Regulatory Commission.
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| ACTION: Proposed rule.
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| | |
| ==SUMMARY==
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| : In order to improve the licensing process for nuclear power plants, the Nuclear Regulatory Commission is considering amending certain provisions of its rules of practice which address the following aspects of the hearing process: admission of contentions; discovery against NRC staff; use of cross-examination plans; timing of motions for summary disposition; and
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| , limitations on intervenors' filings of proposed findings of fact, conclusions of law, and appellate briefs. In addition to these proposals, which were initially developed by the Regulatory Reform Task Force, the Commission is also seeking comments on a series of related proposals developed by Commissioner Asselstine concerning the process of intervention.
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| September~, 1986.
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| DATES: Comments must be received on or before _ _ _ _ _ . Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given except as to comments received on or before this date.
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| ADDRESSES: . Interested persons are invited to send written comments or suggestions to the Secretary of the Commission, U. S. Nuclear Regulatory Commission, Washington, D.C. 20555, Attention: Docketing and Service Branch. Comments may also be delivered to Room 1121, 1717 H Street, NW.,
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| Washington, D.C. between 8:15 a.m. and 5:00 p.m. Copies of any comments received may be examined at the NRC Public Document Room, 1717 H Street, NW., Washington, D.C. 20555.
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| FOR FURTHER INFORMATION CONTACT: Linda S. Gilbert , Office of the Executive Legal Director, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555. Telephone: (301) 492-7678; or Trip Rothschild, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, D.C.
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| 20555. Telephone: (202) 634-1465.
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| SUPPLEl.\1ENTARY INFORMATION:
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| I. Regulatory Reform Task Force Proposals
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| | |
| ===Background===
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| In November, 1981, the NRC crelited a Regulatory Reform Task Force (RRTF) charged with conducting a detailed evaluation of the NRC licensing process for nuclear power plants. The Commission directed the Task Force to develop proposals both for legislation and for rule -changes to improve the process by which nuclear power plants are licensed.
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| The Task Force reviewed a large number of proposals for reforming the licensing process through rule changes, and in November 1982 forwarded a
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| Draft Report !_I to the Commission containing a number of these proposals.
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| Inclusion of a proposal in the Draft Report indicated that a consensus of the Task Force members believed that further evaluation of the proposal was appropriate. It did not indicate that the proposal necessarily commanded the support of a majority of Task Force members -- members frequently held strongly differing views on the merits of individual proposals.
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| The Draft Report was reviewed internally by a Senior Advisory Group, composed of NRC personnel, and by an Ad Hoc Committee for the Review of Nuclear Reactor Licensing Reform Proposals. The latter group, established by the Commission, was composed of non-NRC persons with experience in the Commission's licensing process and procedures. Members of each group held divergent views on the merits of particular proposals, and so advised the Commission.
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| On November 17, 1983, the Commission discussed the administrative proposals for the hearing process at a public meeting. Based on all the information before it, the Commission decided to solicit public comment on the entire package of administrative proposals before deciding on a particular course of action with respect to any or all of the individual proposals. On April 12, 1984, the Commission published a notice in the FEDERAL REGISTER, 49 FR 14698-14715, April 12, 1984, inviting the public to submit comments by June 11, 1984 on the proposals.
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| 1/ The Draft Report contained proposed rule changes concerning back-fitting, the hearing process, separation of functions/ex parte communications, and participation of the NRC staff in initial license proceedings. It also inclu~ed legislative proposals.
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| | |
| . The Commission received twenty-nine letters of comment in response to the FEDERAL REGISTER notice of April 12, 1984. The commenters included nine nuclear utilities or their G<)unsel, nine intervenors or their counsel, four states, three individuals, . an architect engineering firm, a nuclear manufacturer, an industry group, and an energy newsletter. Copies of all comments received have been placed in the Commission's Public Document Room at 1717 H Street NW., Washington, DC, 20555, where they are available for inspection and for copying for a fee.
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| At public meetings held December 18, 1984 and 1 January 9, 1985, the Commission considered the suggested proposals to change the licensing process, as set out in the April 12, 1984 notice, in the light of the comments received. In addition, the Commission also considered the separate licensing reform proposals of Commissioner Asselstine which are discussed in greater detail infra. On the basis of these comments and taking into account the extensive study and analysis accorded the proposals by the Regulatory Reform Task Force, the Senior Advisory Group, and the Ad Hoc Committee, the Commission identified five proposals which merit continued consideration for possible inclusion in Subpart G of the Commission's Rules of Practice.
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| These proposals, which would affect §§ 2.714, 2.720, 2.743, 2.749, 2.754 and
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| : 2. 762 of those rules, relate to the admission of contentions; discovery against NRC staff; use of cross-examination plans; timing of motions for summary disposition; and limitations on matters and issues which may be included in intervenors' proposed findings of fact, conclusions of law, or appellate briefs. Each of the proposed changes is described more fullr in the following section-by-section analysis.
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| Section-by-Section Analysis of RRTF Proposals Intervention (10 CFR 2. 714) Admission of Contentions - Item 2) Y The proposed amendments to § 2. 714 would rais~ the threshold for the admission of contentions esse~tially to require the proponent of the contention to supply information showing the existence of a genuine dispute with the applicant or the NRC staff on an issue of fact. The showing must include references to the specific portions of the application which are disputed. The contention must be supported by a concise statement of the alleged facts or expert opinion, together with specific sources and documents of which the petitioner is aware, which will be relied on to establish the facts or expert opinion. The purpose of the increased threshold, which is consistent with Supreme Court precedent, !/ is to sharpen the issues in dispute throughout the prehearing and hearing phases and to ensure that the resources of all parties are focused on real rather than imaginary issues.
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| A new provision has been added, proposed § 2.714(d)(2)(iv), which would provide that a contention raising only an issue of law will not be admitted for resolution in an evidentiary hearing but shall be decided on the basis of briefs and/ or oral argument.
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| Section 189a. of the Atomic Energy Act of 1954, as amended, provides that for specified types of proceedings "the Commission shall grant a hearing 2/ In each case, the Item number refers to the number of the amendment in the text of the proposed ruie.
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| 3/ See Costle v. Pacific Legal Foundation, 445 U.S. 198, 214 (1980) (citing Wernberger v. Hynson, Westcott and Running, Inc. 412 U.S. 609, 620-621 (1973)).
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| upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding."
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| The Commission's regulations implementing this provision require that, once a petitioner is admitted to th~ *proceeding, he or she must supplement the petition with a l,ist of contentions and a statement of the basis for each contention with reasonable specificity. See 10 CFR 2. 714(b). In order to be permitted to participate as a party, an intervenor must advance at least one contention that satisfies these requirements. The list of contentions is intended to inform the parties and the presiding officer of the issues which the intervenor seeks to litigate. In practice, this requirement may be met by copying contentions from another proceeding involving another reactor.
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| Thus, an intervenor may not fully understand a contention and frivolous contentions may be admitted. In addition, the contentions may not adequately identify the issues that the intervenor seeks to litigate.
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| Under current practice, the presiding officer makes no inquiry into the
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| , merits of a contention in ruling on its admissibility. An intervenor is under no obligation to demonstrate the existence of some factual support for the contention as a precondition to its acceptance. In addition, an intervenor need not show that a genuine dispute of fact exists with the applicant or the N RC staff. These obligations do not arise until later in the proceeding, either in opposition to a motion for summary disposition or at the evidentiary hearing. By increasing the threshold for the admission of contentions, the proposed amendments would sharpen the issues in dispute throughout the proceeding and ensure that the resources of all parties are not spent on litigating frivolous contentions.
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| Under the proposed rule, a contention will be admitted only if the petitioner can establish that a genuine dispute exists on a material issue of law, fact, or policy between petitioner and the applicant (or the NRC staff on environmental issues). In. deciding whether a genuine dispute exists, the presiding officer shall determine* whether the information presented is suffi-cient to prompt reasonable minds to inquire further with regard to the validity of the contention. This is the standard articulated in Castle v.
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| Pacific Legal Foundation, 445 U.S. 198 (1980) and other federal court decisions. See, ~
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| * Vermont Yankee Nuclear Power Corp. v. NRC, 435 U.S. 519 (1978); Connecticut Bankers Ass'n v. Board of Governors, 627 F.2d 245 (D.C. Cir. 1980); Independent Bankers Ass'n v. Board of Governors, 516 F.2d 1206 (D.C. Cir. 1975).
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| Subpoenas (10 CFR 2. 720) (Discovery against NRC Staff - Item 3)
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| Under the procedures in § 2. 720 (h)(2 )(ii), parties may submit interroga-
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| , tories to NRC personnel to elicit factual information reasonably related to the NRC staff's position at the hearing. The staff is not required to answer those interrogatories, however, unless the presiding officer finds that the answers are necessary to a proper decision in the proceeding and that they
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| ~re not reasonably obtainable from any other source. In many instances the NRC staff, voluntarily and as a matter of discretion, provides written answers to interrogatories without insisting that the party requesting the information comply with the procedures specified in this section. This can save time, particularly if the interrogatories are such that the staff would probably be required by the presiding officer to answer them. In other,,
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| instances, however, the staff has objected to interrogatories on various
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| grounds and the presiding officer has not required the staff to respond.
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| Although the staff may ultimately prevail in such instances, staff resources must be expended in preparing and defending objections to the request. The proposed rule would conserve staff resources by codifying two existing grounds for objection to interrogatories directed to the staff. This would enable the staff simply to cite the provisions of the rule in objecting to the request.
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| ,Under existing NRC practice, it is an adequate response to state that the information requested is available in NRC public document rooms or in public compilations and to provide sufficient information to enable a party to locate the material requested. See, ~
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| * Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), CLI-79-8, 10 NRC 141, 147-48 (1979). Such information is "reasonably available from any other source" within the meaning of 10 CFR § 2.720(h)(2)(ii) and,* therefore, need not be provided. A sufficient answer to such a question would be the title, page reference, and location of the relevant document.
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| In addition, NRC case law recognizes that "[i] n responding to discovery requests, a* party is not required to engage in extensive independent research. It need only reveal information in its possession or control (although it may be required to perform some investigation to determine what information it actually possesses)." Pennsylvania Power and Light Co.
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| (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613, 12 NRC 317, 334 (1980). See also Fed. R. Civ. P. 33 {c). The proposed rule would codify this limitation with respect to interrogatories directed to the staff. It would make clear that such interrogatories may not require the staff either to perform additional research or analytical work beyond that needed to support
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| the staff's position on any particular matter or to explain why the staff did not use alternative data, assumptions, or analyses in its reviews. It would provide added assurance that scarce staff resources would not be expended unnecessarily at the pretrial_ -stage of the hearing on matters not directly pertinent to the staff's position in the hearing. Despite the proposed amendment, it would, of course, still be permissible for a party to argue at the hearing that the staff should have performed additional studies or relied on alternative data.
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| Evidence (10 CFR 2. 743) (Cross-examination plan - Item 4)
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| The proposed amendments to § 2. 7 43 would require a party to a proceeding to obtain the permission of the presiding officer in order to conduct cross-examination and would bar the presiding officer from considering any request to cross-examine unless the request was accompanied by a cross-examination plan containing specified information. As proposed, the required cross-examination plan would include a brief description of the issue or issues on which the cross-examination would be conducted, the objective to be achieved by cross-examination, and a proposed line of questions which logically may lead to achieving the objective of the cross-examination, together with the postulated answers which might be reasonably anticipated. The cross-examination plan would be available only to the presiding officer and to the members of the Board and would be kept confidential until after the Licensing Board had rendered its decision on the issue litigated. In order to ensure !3- complete record on appeal, the proposed amendments would require the presiding officer to include each
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| cross-examination plan and any order relating thereto in the record of the proceeding certified on appeal.
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| In the opinion of the Commission, this proposed requirement to submit a cross-examination plan should* assist the presiding officer both in deciding whether to grant or deny a request for cross-examination and in assuring that any cross-examination actually conducted is responsive and productive.
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| By using the cross-examination plan as a method of control, the value of cross-examination should be enhanced and the number of cluttered trial records produced as a result of unfocused questioning should be significantly reduced.
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| In determining whether to permit cross-examination on a particular issue, the presiding officer should consider whether the cross-examination plan contains the required information and whether the requested cross-examination is necessary for a full and true disclosure of the facts. This is the standard set* forth in Section 7(c) of the Administrative Procedure Act, 5 U.S.C.
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| § 556(d), and existing § 2. 743(a). See Seacoast Anti- Pollution League y .-
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| Costle, 572 F.2d 872 (1st Cir.), cert. denied, 439 U.S. 824 (1978); Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2),
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| ALAB-244, 8 AEC 857, 867 n. 16 (1974), reconsideration denied, ALAB-252, 8 AEC 1175, aff'd, CLl-75-1, 1 NRC 1 (1975).
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| Under existing NRC practice, cross-examination may not be used to expand the number or scope of contested issues. Prairie Island, supra, 8 AEC at 867. The Commission's rules authorize the presiding officer to regulate the course of the hearing and to take necessary and proper measures to prevent argumentative, repetitious, or cumulative cross-examination.
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| 10 CFR §§ 2. 718, 2. 757 (c). The proposed rule is intended to formalize this
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| practice to assist the presiding officer in ensuring that appropriate limitations on the use of cross-examination are observed.
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| Authority of presiding of.:ftcer to dispose of certain issues on the pleadings (10 CFR 2.749) (Summary disposition - Item 5)
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| The proposed amendment to § 2. 7 49 ( a) would permit motions for summary disposition to be filed at any time during the proceeding, including during the hearing, instead of requiring such motions to be filed well in advance of the hearing and within such time as may be fixed by the presiding officer, as provided in the existing rule. This change is intended to give the parties maximum flexibility to file such motions and to make it possible to terminate litigation at any point during the proceeding when it becomes apparent that a genuine issue of fact is no longer in dispute.
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| Proposed findings and conclusions (10 CFR 2. 754)
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| Appeals to the Commission from initial decisions (10 CFR 2. 762)
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| (Limitations - Items 6 and 7)
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| The proposed amendments to § 2. 754(c) would limit an intervenor's filings of proposed findings of fact and conclusions of law to issues which that party actually placed in controversy or sought to place in controversy in the proceeding. The proposed amendments to § 2.762(d) would similarly limit the issues which an intervenor could raise in an appellate brief.
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| Present NRC practice permits any party to file proposed findings of fact and conclusions of law on any issue in the proceeding, including issues not placed in controversy by that party, and to appeal on all issues whether or
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| not those issues were raised by the party's own contentions. This general principle is subject to the limitation that a party must have a discernible interest in the outcome of the particular issue being considered. !/ In practice, however, the adju~catory boards have not generally examined an intervenor's filings to determine whether the intervenor possesses the requisite interest with regard to a particular issue, as set forth in the petition to intervene. In addition, intervenors may have such broad, generalized interests in NRC proceedings that an examination of their filings in light of this limitation would do little to reduce the volume of filings that the adjudicatory boards must consider. The purpose of the proposed change is to ensure that presiding officers and agency appellate tribunals are able to focus on the disputed issues in the proceeding as presented and argued by the parties with a primary interest in the issue. The J?roposed change also should ensure that these same presiding officers and appellate tribunals are not inundated by a multiplicity of extraneous filings from persons with little or no stake in the resolution of a particular issue. The proponent of a contention is responsible for making its case on the issue at the hearing and can therefore be expected to present and argue its case on the contention much more persuasively than a party who elects to argue an issue only in
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| ~egal papers filed after the evidentiary portion of the hearing is completed.
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| 4/ See Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-244, 8 AEC 857, 870 n. 19 (1974), reconsideration denied, ALAB-252, 8 AEC 1175, aff'd, CLI-75-1, 1 NRC 1 (1975).
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| The proposed amendments are not applicable to license applicants or to NRC staff. License applicants have the burden of proof. The NRC staff has an overall interest in the proceeding to ensure that public health and safety and environmental values arE? *protected. Each has an obvious interest in filing proposed findings of fact and conclusions of law on most, if -not all, contested issues and in taking appeals when they are adversely affected by the presiding officer's decision. If these proposed amendments are adopted, presiding officers and appellate tribunals will be expected to strike those portions of proposed findings of fact, proposed conclusions of ]4w, and appellate briefs filed in contravention of these sections of the Commission's rules.
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| II. Proposals of Commissioner Asselstlne The proposals of the RRTF did not satisfy completely the concerns of all the Commissioners. Commissioner Asselstine was particularly dissatisfied with
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| , the scope and direction of the RRTF proposals. At the January 9, meeting of the Commission, Commissioner Asselstine submitted his proposals for Commission consideration. The Commission agreed to publish several of 1985 his proposals for comment and requested the staff to draft a notice of proposed rulemaking that incorporated Commissioner Asselstine's proposals.
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| While the Commission requests public comment on Commissioner Asselstine's proposals for the purpose of giving them further consideration, the Commission does not necessarily endorse in full the discussion of the proposals that follows. If commenters agree or disagree with aspects of that discussion, they can so note in their comments.
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| Commissioner Asselstlnes believes that bis proposals would improve the efficiency of the licensing process yet _provide for full public participation in that process. In contrast to the broad changes suggested by* RRTF, Commissioner Asselstine's proi>osals focus narrowly on intervention and public participation in the licensing process. It is
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| * Commissioner Asselstine' s opinion that his moderate changes to the intervention process would attain the goals sought by RR TF and yet maintain a satisfactory level of fairness to all participants and the public.
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| Current practice requires petitions for leave to intervene to be filed within a time specified in the notice of hearing. This filing deadline is not related to the time at which a decision on the petition is made. Instead, the decision to allow intervention is delayed until contentions have been filed.
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| Commissioner Asselstine believes that this is inefficient. First, it requires persons to file petitions within a time period that has little connection with the time frame for the decision on the petition. Second, it
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| , requires persons who do not have the requisite interest in the proceeding to spend time, effort, and money drafting contentions which that perso11 would not be entitled to advance. Third, the framework mixes a decision on the standing of a person to intervene with the ability of the putative intervenor to draft valid contentions. This, according to Commissioner Asselstine, is akin to the judiciary determining that a litigant lacks standing* to prosecute a
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| lawsuit by concluding that the litigant does not have a meritorious claim 5/
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| despite the litigant's clear interest in the outcome. -
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| Commissioner Asselstine's proposed revision to the intervention process would separate the decision '!n standing from the decision on the validity of contentions. By requiring a decision on the intervention petition prior to the filing of contentions, Commissioner Asselstine expects to alleviate some of the problems with current NRC practice.
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| Since a decision on standing would precede a decision on the validity of a contention, the process for drafting and filing contentions also would undergo revision. Another revision to the intervention process would provide for a ninety-day period to draft contentions. At the end of that period and prior to discovery, the contentions would have to survive an initial screening with respect to their validity.
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| A more rigorous test of contentions would be undertaken after discovery was completed. At this stage, the presiding officer would have to determine
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| , whether or not a genuine issue of a material fact exists with respect to each contention. If the presiding officer finds that no issue exists, then a hearing would not be held on that specific issue.
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| 5/ In the context of judicial declsionmaking , a determination of a per son's standing to litigate by ruling on the merits of the litigation creates problems of constitutional significance. See Warth v. Seldin, 422 U.S.
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| 490, 498-502 (1975). While the problem or standing as it pertains to administrative hearings may not create questions of a constitutional dimension, the problem, nevertheless, is significant. Failure to apply appropriate criteria in determining standing . can lead to a cluttered record and a hearing in which valuable time and resources can be squandered on essentially irrelevant issues.
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| In addition to these changes, Commissioner Asselstine would require the Commission to publish, prior to the docketing of an application, a notice that an application for a construction permit or operating license has been filed.
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| In Commissioner Asselstine's opinion this would ensure full public awareness of proposed actions and would enable the NRC, the utility, and the public to meet informally to identify and resolve questions and concerns of interest to the public.
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| * Commissioner Asselstine believes that these changes would remove some of the problems of the existing regulations. Individuals without appropriate interest in the proceeding would not be filing contentions, contentions without any validity would not be the subject of discovery, and contentions that do not raise genuine issues of fact would not be addressed in a hearing. These moderate constraints on formal interventions would be balanced by expanding the opportunities for informal public participation at a much earlier stage of the licensing process an~ in greater depth than is now possible.
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| , At the Commission's direction, the Chairman of the Atomic Safety and Licensing Board Panel prepared a revised version of 10 CFR Part 2.
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| rewrite of Part 2 is available in the Commission's Public Document Room.
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| This A
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| majority of the Commission has previ '11.Sly voted not to solicit comments on this proposal and has indicated that it does not propose to consider such comments at this time.
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| Nonetheless, Commissioner Asselstine believes that the Licensing Board Panel rewrite contains a number of useful ideas for improving the Commission's Rules of Practice. He would appreciate any comments on this revision to Part 2 in addition to comments on this proposed rule.
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| Section-by-Section Analysis of Commissioner Asselstine's Proposals Definitions (10 CFR 2. 4) (Item 8)
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| One addition is made to the definitions. The regulations of the Commission do not define a ''.local public document room." This room is an integral part of the NRC's program to ensure public awareness and participation. Therefore, a definition of a "local public document room" (LPDR) that mirrors the definition of the Commission's public document room has been added. Commissioner Asselstine's proposal would also codify existing staff practice, which is to establish an LPDR as soon as an application is filed.
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| Filing of Application (10 CFR 2.101) (Item 9)
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| A number of revisions would be made to this section under Commissioner Asselstine's proposal. The most important change would involve the addition of a new paragraph requiring the publication of a notice of receipt of an
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| , application.
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| Current NRC practice requires publication of a notice at the time an application is docketed. At this point, the time period for filing petitions for leave to intervene commences. The new paragraph (a)(2) would require I?ublication prior to docketing.
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| Commissioner Asselstine's p1:9oposal would require the NR9 to publish a notice in the FEDERAL REGISTER that it has received an application. In some circumstances, the regulations would perrait an applicant to file an
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| application in separate parts. In these instances, the proposal would require publication of a notice of receipt at the time the earliest filing is made with the NRC. The proposal also would require the NRC to establish a local public document room at the ~me it publishes the notice of receipt.
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| These revisions would enable interested persons to notify the NRC of their interest in the application at the earliest possible stage of the licensing process. These persons would then be kept informed, either directly or through the local public document room, of the progress of the application.
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| This early notification also would allow the NRC staff to meet with interested persons before formal procedures regarding intervention commence.
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| The final change in the regulation as proposed by Commissioner Asselstine would delete the provision for early publication of a notice that an application has been received if the NRC decides to review the application for technical adequacy pursuant to § 2 .101(a)(2). Since the notice of receipt would be published at the time the application is received, retention of a
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| , special provision for this kind of review would be redundant.
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| Notice of hearing (10 CFR 2.104) (Item 10)
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| One of the two revisions to this section proposed by Commissioner Asselstine would require the Commission to publish a notice of hearing at the same time that the Commission dockets the application for a construction permit. Applications for early site review are excepted because the notification procedures pertaining to early site review provide sufficient notice to the persons that might be affected by an early site review.
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| The other revision is more significant. This revision would add- a new paragraph (5) to § 2 .104(a) and would require the notice of hearing to state that petitions to intervene must be filed no later than thirty days after the notice of hearing is published:
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| * The current version of the rules does not specify a time period for the submission of petitions for leave to intervene. The submission of petitions may take as long as the notice specifies even if it is longer than thirty days.
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| These revisions to § 2 .104 proposed by Commissioner Asselstine would streamline the process of intervention by forcing the intervenors to submit petitions within thirty days. This should result in the early identification of
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| ,~ +
| |
| ., ,),J those persons with standing to participate as parties to the proceeding. Late
| |
| \:
| |
| filed intervention petitions would be considered as provided in the Commission's rules.
| |
| Notice of Proposed Action (10 CFR 2 .105) (Item 11)
| |
| The revisions to this section proposed by Commissioner Asselstine are designed to streamline the intervention process in proceedings in which a hearing is not required by law or Commission directive. The proposed modification to paragraph (a)(S) would require issuance of the required notice at the time an application is docketed. Similarly, the proposed revision to paragrliph (e)(2) would require the presiding officer to decide whether to grant a request for hearing and/or petition for leave to intervene as soon as practicable after the filing deadline specified in the notice has closed.
| |
| Without these proposed modifications, Commissioner Asselstine believes that the possibility would exist that a proceeding in which a hearing is not
| |
| | |
| required would take longer than a proceeding in which a hearing is required because the NRC took too much time either to issue the required notice of proposed action or to decide whether to grant petitions for leave to intervene and/or requests for a hearing.* No logical reason exists for this result. The proposed rules would ensure that proceedings that do not require hearings would proceed with appropriate celerity.
| |
| Intervention (10 CFR 2. 714) (Item 15)
| |
| The main focus of Commissioner Asselstine's proposals would involve the rules governing intervention. Specifically, Commissioner Asselstine would not require that contentions be drafted before a decision on the intervention petition is made. After that decision is handed down, the drafting of contentions would commence under modified procedures.
| |
| To accomplish this, restructuring, substantial revisions would be made in
| |
| § 2. 714. Paragraph (a)(l) would be rewritten to take account of the change in the notice provisions of § 2 .104. Paragraph (e) would be redesignated paragraph (d) and rewritten to require thl~.t the presiding officer grant or deny the petition and/ or, in certain instances, a request for a hearing as soon as practicable after the filing period has closed.
| |
| Paragraph (b) would be re designated paragraph (h) and would be revised to require that the period for drafting contentions not commence until a decision on intervention has been made. In addition, the revision to paragraph (b) would contain more detailed requirements for the drafting of contentions and would provide for a ninety-day i,eriod in which to file contentions after the orders on intervention had issued. The ninety-day
| |
| | |
| period also would apply to any order with respect to a request for a hearing made pursuant to § 2 .105.
| |
| Commissioner Asselstine believes that these changes would represent an improvement over current pra~tice. By requiring that the contention drafting period not commence until after the decision to grant or deny the intervention petition, Commissioner Asselstine would separate the decision on intervention from the decision on the validity of contentions.
| |
| As a result of this revision, the presiding officer may not have to review as many contentions because persons without sufficient interest to establish standing as a party would not be permitted to file contentions. In addition, the possible reduced workload should enable the presiding officer to devote more time to reviewing the validity of contentions filed by persons who have a sufficient stake in the outcome of the proceeding.
| |
| Besides changing the order of the proceeding, Commissioner Asselstine' s revision to paragraph (b) would add some greater rigor to the drafting of
| |
| , contentions. No longer would it be sufficient for the intervenor to file an unsupported list of specific contentions. Under the proposal, the intervenor would have ninety days to draft contentions which must include a brief statement of significant facts that support the contention and citations to documents or s a.1rces which have been or will be used to establish such facts. Thus, contentions would have to have at least some scientific or legal underpinning. This also would reduce the number of contentions - that the presiding officer would have to review. The increase in efficiency is obvious.
| |
| | |
| Commissioner Asselstine believes that efficient adjudication is not the primary goal of a hearing on a construction permit or operating license application. He therefore does not want to sacrifice the ability of intervenors to address their valid conc~rns in the name of efficiency. Commissioner Asselstine recognizes that ninety days is a short period when dealing with an issue as complex as nuclear power. Therefore, he especially seeks comments on the sufficiency of the ninety-day period to accomplish the tasks that would be required by the revision to paragraph (b). Commissioner Asselstine also seeks comment on the advisability of revising the Commission's rules governing the consideration of late-filed contentions to require the admission of any late-filed contention upon a showing of good cause due to the institutional unavailability of the information which establishes the factual basis for the contention.
| |
| Special Prehearing Conference in construction permit and operating license proceedings (10 CFR 2. 751a) (Item 16)
| |
| The revisions to I 2. 714 proposed by Commissioner Asselstine would necessitate certain changes to this section. First, paragraph (a) would be amended so that the time limits for a prehearing conference conform to the time limits for drafting contentions. Second, in paragraphs (a)(3) and (d),
| |
| references to decisions on the status of intervenors would be deleted. Third, and most significant, the revisions in paragraphs (a)(3) and (d) to this section would require that a provisional or, in some cases,' a final determination on the admissibility of contentions be made.
| |
| | |
| Under Commissioner Asselstine's proposal, provisional admittance of contentions would occur if the requirements of revised I 2. 714 were met and the presiding officer determined that a set of facts exists which, if true, would entitle the intervenor to relief. This latter requirement is similar to the calculus used by the federal courts in deciding motions to dismiss for a failure to state a claim upon which relief can be granted. See Conley v.
| |
| Gibson, 355 U.S. 41, 45-48 (1957).
| |
| It is Commissioner Asselstine's view that this proposal would eliminate all contentions that clearly have no basis in fact or have no bearing on the outcome of the proceeding. In either event, more time could be devoted to issues that have some impact on the outcome of the proceeding.
| |
| Prehearing Conference (10 CFR 2. 752) (Item 17)
| |
| The revision proposed . by Commissioner Asselstine would add a new paragraph (a)(6) to this section. This addition would require the presiding
| |
| , officer to decide whether a hearing should be held on the contentions filed by an intervenor. To obtain a hearing on a contention, an intervenor would have to establish that a genuine issue of material fact exists. Although the proposed revision duplicates the summary disposition standard, the burden would not be as rigorous. For purposes of the decision required by the amendment, the intervenor would not have to make detailed factual allega-tions. Rather, the intervenor would only need to show that an "inquiry in depth" is appropriate. Once that showing is made, the intervenor would have established that a genuine issue of material fact exists. This standard was
| |
| | |
| adopted from the D.C. Circuit's decision in Independent Bankers Ass'n v.
| |
| Board of Governors, 516 F.2d 1206, 1220_ n.57 (D.C. Cir. 1975).
| |
| In Commissioner Asselstine's opinion, the result of this proposal could be a further reduction in the nµtnber of issues to be considered at a hearing.
| |
| Accordingly, more time could be devoted to the issues of real significance.
| |
| In addition, the hearing could take less time.
| |
| ENVIRONMENTAL IMPACT - CATEGORICAL EXCLUSION The proposed amendments would amend the Commission's Rules of Practice codified in 10 CFR Part 2 and therefore meet the eligibility criteria for the categorical exclusion set forth in 10 CFR I 51. 22(c)(l). Accordingly, pursuant 10 CFR § 51.22(b), no environmental impact statement or environ-mental assessment need be prepared in connection with the issuance of the proposed amendments.
| |
| PAPERWORK REDUCTION ACT REVIEW The _information collection requirements contained in this proposed rule are exempt from the requirements of the Paperwork Reduction Act of 1980 ( 44 U.S. C. I 3518).
| |
| | |
| BACKFIT ANALYSIS This proposed rule does not modify or add to systems, structures, comp'onents, or design of a . fucility; the design approval or manufacturing license for a facility; or the procedures or organization required to design,
| |
| - construct, or operate a facility. Accordingly, no backfit analysis pursuant to 10 CFR 50.109(c} is required for this proposed rule.
| |
| REGULATORY FLEXIBILITY ACT CERTIFICATION The proposed rule will reduce the procedural burden on NRC licensees by improving the hearing process. The impact on intervenors or potential intervenors will be neutral. While intervenors or potential intervenors will have to meet a higher threshold to gain admission to NRC proceedings and, thereby, incur some additional economic costs in preparing requests for hearing or requests to intervene, the propos*ed improvements should reduce intervenors' costs once the hearing commences. Thus, in accordance with the
| |
| ' Regulatory Flexibility Act of 1980, 5 U.S. C.
| |
| Standards (50 FR 50241), the Commission
| |
| § 605(b), and the NRC Size certifies that this rule, promulgated, will not have a significant economic impact upon a substantial if number of small entities and that therefore a regulatory flexibility analysis need not be prepared.
| |
| | |
| LIST OF SUBJECTS IN 10 CFR PART 2 Administrative practice and procedure, Antitrust, Byproduct material, Classified information, Envirc;mmental 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 197 4, as amended, and 5 U.S. C. § 553, the Nuclear Regulatory Commission is proposing to adopt the following amendments to 10 CFR Part 2.
| |
| PART 2 - RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS.
| |
| : 1. The authority citation for Part ~ continues to read as follows:
| |
| Authority: Sections 161, 181, 68 Stat. 948, 953, as amended (42 U.S. C.
| |
| I 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. 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. -1246 (42 U.S.C. 5846). Sections 2.300-2.309 also issued under Pub. L. 97:-415, 96 Stat. 2071 (42 U.S.C. 2133). 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 also issued under 5 U.S.C. 557.
| |
| 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. 134, Pub. L. 97-425, 96 Stat. 2230 (42 U.S.C. 10154).
| |
| Appendix A also issued under sec. 6, Pub. L. 91-580, 84 Stat. 1473 (42 u.s.c. 2135).
| |
| , 2. In paragraphs (a) and (f) of§ 2.714, the words "paragraph (d) of this section" which appear in the fourth sentence of paragraph (a)(l), in the single sentence in paragraph (a)(2) and in the single sentence in paragraph (f) are revised to read "paragraph (d)(l) of this section." Paragraphs (b),
| |
| (c), and (d) of § 2. 714 are also revised to read as follows:
| |
| § 2. 714 Intervention.
| |
| (b)(l) Not later than fifteen (15) day's prior to the holding of the special prehearing conference pursuant to § 2. 751a, or if no special
| |
| | |
| prehearing conference is held, fifteen (15) days prior to the holding of the first prehearing conference, the petitioner shall file a supplement to his or her petition to intervene that must include* a list of the contentions which petitioner seeks to have litig!lted in the hearing. A petitioner who fails to file a supplement that satisfies the requirements of paragraph (b)(2) of this section with respect to at least one contention will not be permitted to participate as a party. Additional time for filing the supplement may be granted based upon a balancing of the factors in paragraph (a)(l) of this section.
| |
| (2) Each contention must consist of a specific statement of the issue of law, fact, _or policy to be raised or controverted. In addition, the petitioner shall provide the following information with respect to each contention:
| |
| (i) A brief explanation of the bases of the contention.
| |
| (ii) A concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner intends to rely
| |
| * in proving the contention at the hearing, together with references to those specific sources and documents of which the petitioner is aware and on which the petitioner will rely to establish those facts or expert opinion.
| |
| (iii) Sufficient information ( which may include information pursuant to paragraphs (b)(2)(i) and (ii) of this section) to show that a genuine dispute exists with the applicant on an issue of law, fact, or policy.
| |
| This showing must include references to the specific portions of the application (including the applicant's environmental report and safety
| |
| | |
| report) that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the applicatlou fails to contain information on .a relevant matter as required by law, the identification of each failure and the supj10rting reasons for the petitioner's belief. On issues arising und.er the National Environmental Policy Act, the petitioner shall file contentions based on the applicant's environmental report. The petitioner can amend those contentions or file new contentions if there are data or conclusions in the NRC draft or final environmental impact statement, environmental 1:1ssessment, or any supplements relating thereto, that differ significantly from the data or conclusions in the applicant's document.
| |
| ( c) Any party to a proceeding may file an answer to a petition for leave to intervene within ten (10) days after 1::1ervice of the petition, with particular reference to the factors set forth in paragraph ( d) ( 1) of this section. The staff may file such an answer within fifteen (15) days after service of the petition.
| |
| ( d) The Commission, the presiding officer ur the atomic safety and licensing board designated to rule on petitions to intervene or requests for hearing or the admissibility of contentions shall, in ruling on--
| |
| (1) A petition for leave to intervene or a request for a hearing, consider the following factors, among other things:
| |
| (i) The nature of the petitioner's right under the Act to .be made a party to the proceeding.
| |
| | |
| (ii) The nature and extent of the petitioner's property, financial, or other interest in the proceeding.
| |
| (iii) The possible effect of any order that may be entered in the proceeding on the petitio~er's interest.
| |
| (2) The admissibility of a contention, and refuse to admit a contention if:
| |
| (i) The contention and supporting material fail to satisfy the requirements of paragraph (b)(2) of this section. In determining whether a genuine dispute exists on a material issue of law, fact, or policy, the Commission or the presiding officer shall consider whether the information presented pursuant to paragraph (b)(2) of this section prompts reasonable minds to inquire further as to the validity of the contention; or (ii) It appears unlikely th&.t petitioner can prove a set of facts in support of its contention; or (ill) The contention, if proven, would be of no consequence in the*
| |
| proceeding because it would not entitle petitioner to relief; or
| |
| ' (iv) The contention raises only an issue of law. Contentions raising only an issue of law may not be admitted for resolution in an evidentiary hearing, but rather, must be decided on the basis of briefs or oral argument as directed by the Commission or presiding officer.
| |
| : 3. In § 2.720, pb.ragraph (h)(2)(ii) is revised to read as follows:
| |
| | |
| § 2.720 Subpoenas.
| |
| (h) * * *
| |
| (2) * *
| |
| (ii) In addition, a party may fl.le with the presiding officer written interrogatories to be answered by NRC personnel with knowledge of the facts designated by the Executive Director for Operations. Upon a finding by the presiding officer that answers to the interrogatories are necessary to a proper decision in the proceeding and that answers to the interrogatories are not reasonably obtainable from any other source, such as from the Commission's Public Document Room or Local Public Document Room, the presiding officer may require that the stuff answer the interrogatories. Such interrogatories may seek to elicit factual information reasonably related to the NRC staff's position in the proceeding, including data used, assumptions made, and analyses performed by the NRC staff. Such interrogatories may not, however, be
| |
| ' addressed to, or be construed to require: (A) Reasons for not using alternative data, assumptions, and analyses where the alternative data, assumptions, and analyses were not relied on in the NRC staff review; or (B) Performance of additional research or analytical work beyond that which is needed to support the NRC staff's position on any particular matter.
| |
| : 4. In § 2.743, paragraphs (a) ancl (b) are revised to read as follows:
| |
| | |
| I 2.743 Evidence.
| |
| (a) General. Every party to a proceeding shall have the right to present such oral or documentary evidence and rebuttal evidence and to conduct, in accordance with 9:11 approved cross-examination plan that contains the information specified in paragraph (b) ( 2) of this section, such cross-examination as may be required for full and true disclosure of the facts.
| |
| (b) Testimony and cross-examination.
| |
| (1) The parties shall submit direct testimony of witnesses in written form, unless otherwise ordered by the presiding officer on the basis of objections presented. In any proceeding in which advance written testimony is to be used, each party shall serve copies of its proposed written testimony on each other party at least fifteen (15) days in advance of the session of the hearing at which its testimony is to be presented. The presiding officer
| |
| * may permit the introduction of written testimony not so served, either with the consent of all parties present or after they have had a reasonable opportunity to examine it. Written testimony must be incorporated in the t.ranscript of the record as if read or, in the discretion of the presiding officer, may be offered and udmitted in evidence as an exhibit.
| |
| (2) Any party seeking an opportunity to cross-examine shall request permission from the presiding officer. The presiding officer shall not
| |
| | |
| consider any request to conduct a cross-examination unless the request is accompanied by a cross-examination plan that contains the following information:
| |
| (i) A brief description c,f the issue or issues on which cross-examination will be conducted; (ii) The objective to be achieved by cross-examination; and (iii) The proposed line of questions that may logically lead to achieving the objective of the cross-examination, together with the postulated answers which might be reu.sonably anticipated.
| |
| The cross-examination plan may be submitted only to the presiding officer and to the members of the Board and must be kept by them in confidence. The presiding officer shall include each cross-examination plan and any order relating thereto in the record of the proceeding certified on appeal.
| |
| (3) Paragraphs (b)(l) and (2) of this section do not apply to proceedings under Subpart B of this part for modification, suspension, or
| |
| ' revocation of a license.
| |
| : 5. In § 2. 7 49, paragraph ( a) is revised to read as follows:
| |
| | |
| § 2.749 Authority of presiding officer to dispose of certain issues on the pleadings.
| |
| {a) Any party to a proceeding may move, with or without supporting affidavits, for a decision by _the prE:siding officer in that party's favor as to all or any part of the matters involved in the proceeding. The moving party shall annex to the motion a separate, short, and concise statement of the material facts as to which the moving party contends that there is no genuine issue to be heard. Motions may be filed at any time. Any other party may serve an answer supporting or opposing the motion, with or without affidavits, within twenty (20) days after service of the motion. The party shall annex any answer opposing the motion a separate, short, and concise statement of the material facts as to which it is contended that there exists a genuine issue to be heard. All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party. The opposing party may, within ten (10) days after service, respond in writing to new facts and arguments presented in any statement filed in
| |
| ' support of the motion.
| |
| thereto may be entertained.
| |
| No further supporting statements or responses
| |
| : 6. In§ 2.754, paragraph (c) is revised to read as follows:
| |
| § 2. 754 Proposed findings and conclusions.
| |
| (c) Proposed findings of fact must be clearly and concisely set forth in numbered paragraphs and must be confined to the material issues of fact presented on the record, with exact citations to the transcript of record and
| |
| | |
| exhibits in support of each proposed finding. Proposed conclusions of law must be set forth in numbered paragraphs as to all material issues of law or discretion presented on the record. An intervenor's proposed findings of fact and conclusions of law must be confined to issues which that party placed in controversy or sought to place in controversy in the proceeding.
| |
| : 7. In § 2. 762, paragraph ( d) is revised to read as follows:
| |
| I 2. 762 Appeals to the Commission from initial decisions.
| |
| (d) Brief Content. A brief in excess of ten (10) pages must contain a table of contents, with page references, and a table of cases (alphabetically arranged), statutes, regulations, and other authorities cited, with references to the pages of the brief where they are cited.
| |
| (1) An appellant's brief must clearly identify the errors of fact or law that are the subject of the appeal. An intervenor-appellant's brief must be confined to issues which the intervenor-appellant placed in controversy or
| |
| ' sought to place in controversy in the proceeding. For each issue appealed, the precise portion of the record relied upon in support of the assertion of error must also be provided.
| |
| (2) Each responsive brief must contain a reference to the precise portion of the record which supports each factual assertion made.
| |
| | |
| COMMISSIONER ASSELSTINE'S PROPOSALS
| |
| : 8. In I 2. 4, paragraph (k) is amended to read as follows:
| |
| I 2 .4 Definitions.
| |
| (k) "Public Document Room" means the place at 1717 H Street NW.,
| |
| Washington, DC, at which public records of the Commission will ordinarily -be made available for inspection. "Local Public Document Room" means the place near the proposed facility or activity at which public records of the Commission regarding that facility or activity will ordinarily be made available for inspection.
| |
| : 9. In I 2.101, paragraph (a) is amended as follows:
| |
| Paragraphs (3), (4), and (5) are redesignated as paragraphs (4), (5),
| |
| and (6);
| |
| ' In the first sente11ce of redesignated paragraph ( 4) , the reference to
| |
| "(a)(5)" is changed to "(a)(6)";
| |
| In the second sentence of re designated paragraph ( 4) (ii) , the reference to "(a)(3)(ii)" is changed to "(a)(4)(ii)";
| |
| Paragraph (2) is revised and redesignated paragraph (3); and A new paralP"aph (2) is added to read as follows:
| |
| | |
| § 2 .101 Filing of Application.
| |
| (a)(l) * * *
| |
| ( 2) Upon the receipt of an application for a license for a facility described in I 50.2l(b) or .t* 50.22 of this chapter, the Commission shall publish a notice of receipt of the application in the FEDERAL REGISTER. If the application is for a nuclear power reactor, the notice must identify the Local Public Document Room where information relating to the application will be available for public inspection. If the application is submitted in three parts, as permitted in paragraph (a)(6) of this section, the date of receipt of the application will be the earliest date on which any part of the application is submitted. A copy of the application &.nd the notice of receipt will be available for public inspection in the Commission's Public Document Room, and in the Local Public Document Room identified in this notice.
| |
| (3) Each application for a license for a facility or for receipt of waste radioactive material from other persons for the purpose of commercial disposal by the waste disposal licensee will be assigned a docket number. However, to allow a determination of whether an application for a construction permit or
| |
| ' operating license for a production or utilization facility is complete and acceptable for docketing, it will be initially treated as a tendered application.
| |
| lfor those applications not subject to the advance notification procedures in
| |
| § 2.101(a)(2), a copy of the tendered application will be available for public inspection in the Commission's Public Document Room. Generally, a determination of acceptability for docketing will be made within thirty (30) days. However, in selected construction permit applications, the Commission may decide to determine acceptability for docketing on the basis of the
| |
| | |
| technical adequacy of the application as well as its completeness. In such cases, the determination of acceptability will generally be made within a period of sixty (60) days. For docketing and other requirements for applications pursuant to Part 61 of this chapter, see paragraph (g) of this section.
| |
| : 10. In § 2 .104, paragraph (a) is revised to read as follows:
| |
| § 2.104 Notice of Hearing.
| |
| (a)(l) In the case of an application on which a hearing is required by the Act or this chapter, or in which the Commission fu1ds that a hearing is required in the public interest, the Secretary will issue a notice of hearing to be published in the FEDERAL REGISTER as required by law at least fifteen (15) days, and in the case of an application concerning a construction permit for a facility of the type described in § 50. 21(b) or § 50. 22 of this chapter or a testing facility, at least thirty (30) days, prior to the date set for hearing in the notice.
| |
| ( 2) If the notice of hearing concerning an application for a construction permit for a facility of the type described in § 50.21(b) or § 50.22 of this chapter or a testing facility does not spe<.."ify the time and place of initial hearing, a subsequent notice will be published in the FEDERAL REGISTER which will provide at least thirty (30) days notice of the time and place of that hearing. After this notice is given, the presiding officer may reschedule
| |
| | |
| the commencement of the initial hearing for a later date or reconvene a recessed hearing without again providing thirty (30) days notice.
| |
| (3) In addition, iu the case of an application for a construction permit for facility of the t~e desc_ribed in § 50. 22 of this chapter, or a testing facility, the notice (other than a notice pursuant to paragraph ( d) of this section) must be issued at the time the application is docketed except as otherwise provided by H 2.lOl(a-1), 2.603, and 2.604 and by Appendix Q to Part 50 of this chapter. The notice of hearing and the notice of docketing required by § 2. lOl(d) may be combined and issued as a single notice. The notice will state :
| |
| (i) The time, place, and nature of the hearing and/ or prehearing conference, if any; (ii) The authority under which the hearing is to be held; (iii) The matters of fact and law to be considered; (iv) The time within which answers to the notice shall be filed; and (v) That petitions to intervene must be filed no later than thirty (30) days after the docketing of the application.
| |
| : 11. In § 2 .105, paragraphs (a)(8) and (e)(2) are revised to read as follows:
| |
| § 2.105 Notice of Proposed Action.
| |
| (a) * *
| |
| * _, 40 -
| |
| ( 8) In the case of an application for an operating license for a facility of a type described in § 50.21(b) or t 50.22 of this chapter or a testing facility, a notice of opportwrlty for hearing must be issued upon docketing of the application.
| |
| (e) * *
| |
| (2) If a request for a hearing or a petition for leave to intervene is filed within the time prescribed in the notice, the presiding officer, who shall be an Atomic Safety and Licensing Board established by the Commission or by the Chief Administrative Judge of the Atomic Safety and Licensing Board Panel, will rule on the request or petition as soon as practicable after the filing date specified in paragraph (d) of this section has closed. The Secretary or the presiding officer shall issue a notice of hearing or an appropriate order. The presiding officer designated to rule on a request or petition concerning the antitrust aspects of an application may be either an Administrative Law Judge or an Atomic Safety and Licensing Board.
| |
| I 2.110 [Amended]
| |
| : 12. In 1* 2.110, paragraph (a)(2) is amended by changing the reference to "I 2.101 (a)(2)-(a)(4)" to "I 2.101(a)(3)-(a)(5)."
| |
| § 2.603 [Amended]
| |
| : 13. In § 2.603, the third sentence of paragraph (b)(l) is amended by changing the reference to "§ 2.10l(a)(3) and (a)(4)" to "§ 2.101(1:1.)(4) and (a)(5)."
| |
| § 2. 604 [Amended]
| |
| : 14. In § 2.604, paragraph (c) is amended by changing the reference to
| |
| "§ 2.714(d)" to"§ 2.714(c)."
| |
| : 15. In § 2.714, paragraph (b) is redesignated (h); paragraphs (c),
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| (d), (e), (f), (g), and (h) are redesignated (b), (c), (d), (e), (f), and (g); and paragraph (a)(l), and redesignated paragraphs (d) and (h) are revised to re1:1.d as follows:
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| § 2. 714 Intervention.
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| (a)(l)(i) Any person whose interest may be affected by a proceeding and who desires to participate as a party shall file a written petition for leave to intervene or request a hearing as follows:
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| ' § (A) In a proceeding on antitrust matters noticed pursuant to 2.102(d)(3), a petition to intervene or a request for a hearing must be filed no later than thirty (30) days after publication of the notice.
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| (B) In a proceeding noticed pursuant to § 2.104(a), the petition to intervene must be filed no later than the time specified in the notice published pur81.lant to § 2. 104(a) but in no event raay the time be less than thirty ( 3 0) days after publication of the notice.
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| (C) In a proceeding noticed pursuant to § 2.105, a petition to intervene or a request for a hearing must be filed no later than the time specified in the notice of proposed action.
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| (ii) Nontimely filings will not
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| * be entertained absent a determination by the Commission, the presiding officer, or the Atomic Safety and Licensing Board designated to rule on the petition or request, that the petition or request should be granted based upon a balancing of the following factors in addition to those set out in paragraph (c) of this section:
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| (A) Good cause, if any, for failure to file on time.
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| (B) The availability of other means whereby the petitioner's interest will be protected.
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| (C) The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.
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| (D) The extent to which the petitioner's interest will be represented by existing parties.
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| (E) The extent to which the petitioner's participation will broaden the issues or delay the proceeding.
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| (d) An order permitting or denying intervention or directing that a hearing be held must be made as soon as practicable after the period for filing petitions or requests has closed. This order may be conditioned on such terms as the Commission, the presiding officer, or the designated Atomic Safety and Licensing Board may direct in the interests of: (1) Restricting irrelevant, duplicative, or repetitive evidence and argument, (2) having
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| common interests represented by a spokesman, and (3) retaining authority to determine priorities and control the compass of the hearing .
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| (h) Not later than fifteen (15) days prior to the holding of the special prehearing conference pursuant to I 2. 751a, or where no special prehearing conference is held, fifteen (15) days prior to the holding of the first prehearing conference, but in no event less than ninety (90) days after the issuance of an order pursuant to paragraph ( d) of this section or para-graph (e)(2) of § 2 .105, the intervenor shall file a list of contentions which the intervenor seeks to have litigated in the proceeding and the bases for each contention. In addition, the intervenor shall support each contention with a brief statement of the significant facts known to the intervenor that support the contention, together with references to the sources and docu-ments which have been or will be relied on to establish such facts. Addi-tional time for filing the information described in this paragraph may be grw1ted based upon a balancing of the factors in paragraphs (a)(l)(ii)(A)-(E) of this section.
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| : 16. In § 2.751a, the introductory text to paragraphs (a), and paragraphs (a)(3) and (d) are revised to read as follows:
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| § 2.751a Special prehearing conference in construction permit and operating license proceedings.
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| (a) In any proceeding involving an application for a construction permit or an operating license for a production or utilization facility, the Commission or the presiding officer shall direct the parties or their counsel to appear at a specified place and at spe9ified time which must be at least ninety (90) days after issuance of an order pursuant to H 2 .105(e)(2) or 2. 714(d) for a conference!/ to--
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| (3) Consider all contentions of the intervenors to allow the presiding officer to make such provisional or final determination as to the admissibility of each contention, as may be appropriate. A contention will be admitted provisionally if it satisfies the criteria set forth in § 2. 714(h) and the presiding officer determines that the intervenor has identified a set of facts in support of its contention which, if true, would entitle the 'intervenor to relief. If an intervenor does not list at least one contention which satisfies the requirements of this paragraph, that intervenor, absent a showing of good cause, will lose its status as a party to the proceeding; and
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| ( d) The presiding officer shall enter an order which recites the action taken at the conference, the schedule for further actions in the proceeding, any agreements by the parties, and which identifies key issues in the proceeding, makes provisional or final determinations pursuant to paragraph 7/ This conference may be omitted in proceedings other than contested proceedings.
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| (a)(3) of this section, and provides for the submission of status reports OI!
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| discovery. The order must be served upon all parties to the proceeding.
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| Objections to the order may be filed by a party within five ( 5) days after service of the order, except .that the staff ruay file objections to such order within ten (10) days after service. Parties may not file replies to the objections unless the Board so directs. 'i'he filing of objections will no~ stay the decision unless the presiding officer so orders. The Board may revise the order in consideration of the objections presented and, as permitted by
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| § 2. 718(i), may certify for determination to the Commission or the Atomic Safety and Licensing Appeal Board, as appropriate, such matters raised in the objections as it deems appropri1:1.te. The order will control the subsequent course of the proceeding unless modified for good cause.
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| : 17. In § 2.752, the word "and" following paragraph (a)(5) is deleted; paragraph (1:1.)(6) is redesig1wted (a)(7); and a new paragraph (a)(6) is added to read as follows:
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| § 2. 'I 52 Prehearing Conference.
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| (a) * * *
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| (6) The need for a hearing on the contentions filed by any and all intervenors. A he&ring must be held on a contention unless the presiding officer finds that no genuine issue of material 'fact exists with regard to the contention; and Dated at Washington, DC, this For the Nuclear Regulatory Commission.}}
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