ML20236X011

Policy Statement Update on Conduct of Adjudicatory Proceedings in View of Potential Institution of Number of Proceedings in Next Few Years to Renew Reactor Operating Licenses

ML20236X011
Person / Time
Issue date:	07/28/1998
From:	Vietticook A NRC OFFICE OF THE SECRETARY (SECY)
To:	NRC
References
FRN-63FR41872, RULE-PR-MISC 63FR41872, NUDOCS 9808070050
Download: ML20236X011 (12)

Text

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DOGxET Muggp; NOPOSED RUlf (k M /5C 00CKETED U3 7590-01-P h3@N6Nf NUCLEAR REGULATORY COMMISSION 0- -

Policy on Conduct Of Adjudicatory Proceedings; PofEy Statement '

l ADJU AGENCY: Nuclear Regulatory Commission.

ACTION: Policy Statement: Update.

SUMMARY

The Nuclear Regulatory Commission (Commission) has reassessed and updated its policy on the conduct of ad,iudicatory proceedings in view of the potential institution of a number of proceedings in the next few years to consider applications to renew reactor operating licenses, to reflect restructuring in the electric utility industry, and to license waste storage facilities.

S 1998 i

DATES: This policy statement is effective on [d;ter of d!!::t!:r " to P:dn' ! ", ;::ter],

Chf*444 & 1998 while comments are being received. Comments are due on or before [SS d:y: ". : pdSd.;r, ir, :h; Icica' ";;L:c cl.

ADDRESSES: Send written comments to: The Secretary of the Commission, U.S.

Nuclear Regulatory Commission, Washington, DC 20555, ATTN: Rulemakings and Adjudications Staff. Hand deliver comments to: 11555 Rockville Pike, Rockville, Maryland, between 7:45 am and 4:15 pm, Federal workdays. Copies of comments received may be O/

examined at the NRC Public Document Room,2120 L Street, NW. (Lower Level), Washington, DC.

9000070050 900728 PDR PR 5

MISC 63FR41872 PDR {_y l p7 m.n s/s/w

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FOR FURTHER INFORMATION CONTACT: Robert M. Weisman, Litigation Attorney, j U.S. Nuclear Regulatory Commission, Washington, DC 20555, (301) 415-1696.

STATEMENT OF POLICY ON CONDUCT OF ADJUDICATORY PROCEEDINGS CLI-98-12

1. INTRODUCTION As part of broader efforts to improve the effectiveness of the agency's programs and processes, the Commission has critically reassessed its practices and procedures for conducting adjudicatory proceedings within the framework of its existing Rules of Practice in 10 CFR Part 2, primarily Subpart G. With the potentialinstitution of a number of proceedings in the next few years to consider applications to renew reactor operating licenses, to reflect restructuring in the electric utility industry, and to license waste storage facilities, such assessment is particularly appropriate to ensure that agency proceedings are conducted efficiently and focus on issues germane to the proposed actions under consideration. In its review, the Commission has considered its existing policies and rules governing adjudicatory proceedings, recent experience and criticism of agency proceedings, and innovative techniques used by our own hearing boards and presiding officers and by other tribunals.

Although current rules and policies provide means to achieve a prompt and fair resolution of proceedings, the Commission is directing its hearing boards and presiding officers to employ certain measures described in this policy statement to ensure the efficient conduct of i

i proceedings.

The Commission continues to endorse the guidance in its current policy, issued in 1981, on the conduct of adjudicatory proceedings. Statement of Po/ icy on Conduct of Licensing

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Proceedings, CLi-81-8,13 NRC 452 (May 20,1981); 46 FR 28533 (May 27,1981). The 1981 policy statement provided guidance to the Atomic Safety and Licensing Boards (licensing boards) on the use of tools, such as the establishment and adherence to reasonable schedules and discovery management, intended to reduce the time for completing licensing proceedings while ensuring that hearings were fair and produced adequate records. Now, as then, the Commission's objectives are to provide a fair hearing process, to avoid unnecessary delays in the NRC's review and hearing processes, and to produce an informed adjudicatory record that supports agency decision making on matters related to the NRC's responsibilities for protecting public health and safety, the common defense and security, and the environment. In this context, the opportunity for hearing should be a meaningful one that focuses on genuine issues and real disputes regarding agency actions subject to adjudication. By the same token, however, applicants for a license are also entitled to a prompt resolution of disputes concerning their applications.

The Commission emphasizes its expectation that the boards will enforce adherence to the hearing procedures set forth in the Commission's Rules of Practice in 10 CFR Part 2, as interpreted by the Commission. In addition, the Commission has identified certain specific approaches for its board. to consider implementing in individual proceedings, if appropriate, to reduce the time for completing licensing and other proceedings. The measures suggested in this policy statement can be accomplished within the framework of the Commission's existing Rules of Practice. The Commission may consider further changes to the Rules of Practice as appropriate to enable additionalimprovements to the adjudicatory process.

4 ii. SPECIFIC GUIDANCE Current adjudicatory procedures and policies provide a latitude to the Commission, its I

t licensing boards and presiding officers to instill discipline in the Searing process and ensure a prompt yet fair resolution of contested issues in adjudicatory proceedings. In the 1981 policy statement, the Commission encouraged licensing boards to use a number of techniques for effective case management including: setting reasonable schedules for proceedings; consolidating parties; encouraging negotiation and settlement conferences; carefully managing and supervising discov ?ry; issuing timely rulings on prehearing matters; requiring trial briefs, pre-filed testimony, and cross-examination plans; and issuing initial decisions as soon as practicable after the parties file proposed findings of fact and conclusions of law. Licensing boards and presiding officers in current NRC adjudications use many of these techniques, and should continue to do so.

As set forth below, the Commission has identified several of these techniques, as applied in the context of the current Rules of Practice in 10 CFR Part 2, as well as variations in procedure permitted under the current Rules of Practice that licensing boards should apply to proceedings. The Commission also intends to exercise its inherent supervisory authority, including its power to assume part or all of the functions of the presiding officer in a given adjudication, as appropriate in tha context of a particular proceeding. See, e.g., Public Service j

Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLl-90-3, 31 NRC 219, 229 (1990).

The Commission intends to promptly respond to adjudicatory matters placed before it, and such matters should ordinarily take priority over other actions before the Commissioners.

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1. Hearing Schedules The Commission expects licensing boards to establish schedules for promptly deciding the issues before them, with due regard to the complexity of the contested issues and the interests of the parties. The Commission's regulations in 10 CFR 2.718 provide licensing boards all powers necessary to regulate the course of proceedings, including the authority to set schedules, resolve discovery disputes, and take other action appropriate to avoid delay.

Powers granted under @ 2.718 are sufficient for licensing boards to control the supplementation of petitions for leave to intervene or requests for hearing, the filing of contentions, discover /,

dispositive motions, hearings, and the submission of findings of fact and conclusions of law.

Many provisions in Part 2 establish schedules for various filings, which can be varied "as otherwise ordered by the presiding officer." Boards should exercise their authority under these options and 10 CFR 2.718 to shorten the filing and response times set forth in the regulations to the extent practical in a specific proceeding. In addition, where such latitude is not explicitly afforded, as well as in instances in which sequential (rather than simultaneous) filings are provided for, boards should explore with the parties all reasonable approaches to reduce )

response times and to provide for simultaneous filing of documents.

Although current regulations do not specifically address service by electronic means, licensing boards, as they have in other proceedings, should establish procedures for electronic filing with appropriate filing deadlines, unless doing so would significantly deprive a party of an l

opportunity to participate meaningfully in the proceeding. Other expedited forms of service of I documents in proceedings may also be appropriate. The Commission encourages the licensing i

boards to consider the use of new technologies to expedite proceedings as those technologies become available.

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Boards should forego the use of motions for summary disposition, except upon a written finding that such a motion will likely substantially reduce the number of issues to be decided, or otherwise expedite the proceeding. In addition, any evidentiary hearing should not commence before completion of the staff's Safety Evaluation Report (SER) or Final Environmental l

Statement (FES) regarding an application, unless the presiding officer finds that beginning earlier, e.g., by sta'rting the hearing with respect to safety issues prior to issuance of the SER, will indeed expedite the proceeding, taking into account the effect of going forward on the staffs ability to complete its evaluations in a timely manner. Boards arc strongly encouraged to expedite the issuance of interlocutory rulings. The Commission further strongly encourages presiding officers to issue decisions within 60 days after the parties file the last pleadings permitted by the board's schedule for the proceeding.

Appointment of additional presiding officers or licensing boards to preside over discrete issues simultaneously in a proceeding has the potential to expedite the process, and the Chief Administrative Judge of the Atomic Safety and Licensing Board Panel (ASLBP) should consider this measure under appropriate circumstances. In doing so, however, the Commission expects the Chief Administrative Judge to exercise the authority to establish multiple boards only .

if: (1) the proceeding involves discrete and severable issues; (2) the issues can be more expeditiously handled by multiple boards than by a single board; and (3) the multiple boards l

can conduct the proceeding in a manner that will not unduly burden the parties. Private Fuel j I

Storage, L.L.C. (Private Fuel Storage Facility), CLl-98-7,47 NRC __ (1998).

The Commission itself may set milestones for the completion of proceedings. If the l Commission sets milestones in a particular proceeding and the board determines that any

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single milestone could be missed by more than 30 days, the licensing board must promptly so l I

inform the Commission in writing. The board should explain why the milestone cannot be met l

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r and what measures the board will take insofar as is possible to restore the proceeding to the overall schedule.

2. Parties' Obligations l

Although the Commission expects its licensing boards to set and adhere to reasonable schedules for the various steps in the hearing process, the Commission recognizes that the boards will be unable to achieve the objectives of this policy statement unless the parties satisfy l f tneir obligations. The parties to a pr eeding, therefore, are expected to adhere to the time frames specified in the Rules of Practice in 10 CFR Part 2 for filing cnd the scheduling orders in the proceeding. As set forth in the 1981 policy statement, the licensing boards are expected to take appropriate actions to enforce compliance with these schedules. The Commission, of course, recognizes that the boards may grant extensions of time under sorne circumstances, l

but this should be done only when warranted by unavoidable and extreme circumstances.

Parties are also obligated in their filings before the board and the Commission to ensure l

that their arguments and assertions are supported by appropriate and accurate references to legal authority and factual basis, including, as appropriate, citation to the record. Failure to do so may result in material being stricken from the record or, in extreme circumstances, in a party being dismissed.

3. Contentions l

Currently, in proceedings governed by the provisions of Subpart G, 10 CFR 2.714(b)(2)(iii) requires that a petitioner for intervention shall provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or

l fact.' The Commission has stated that a board may appropriately view a petitioner's support for its contention in a light that is favorable to the petitioner, but the board cannot do so by ignoring the requirements set forth in S 2.714(b)(2). Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1,2, and 3), CLI-91-12,34 NRC 149,155 (1991). The Commission {

re-emphasizes that licensing boards should continue to require adherence to @ 2.714(b)(2), and l 1

that the burden of coming forward with admissible contentions is on their proponent. A contention's proponent, not the licensing board, is responsible for formulating the contention aaJ providing the necessary information to satisfy the basis requirement for the admission of contentions in 10 CFR 2.714(b)(2). The scope of a proceeding, and, as a consequence, the scope of contentions that may be admitted, is limited by the nature of the application and pertinent Commission regulations. For example, with respect to license renewal, under the governing regulations in 10 CFR Part 54, the review of license renewal applications is confined to matters relevant to the extended period of operation requested by the applicant. The safety review is limited to the plant systems, structures, and components (as delineated in 10 CFR 54.4) that will require an aging management review for the period of extended operation or are subject to an evaluation of time-limited aging analyses. See 10 CFR 54.21(a) and (c),

54 29, and 54.30. In addition, the review of environmentalissues is limited by rule by the generic findings in NUREG-1427, " Generic Environmental Impact Statement (GEIS) for License Renewal of Nuclear Plants." See 10 CFR 55.71(d) and 51.95(c).

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' "[A]t the contention filing stage [,) the factual support necessary to show that a genuine dispute exists need not be in affidavit or formal evidentiary form and need not be of the quality necessary to withstand a summary disposition motion.' Rules of Practice for Domestic Licensing Proceedings-ProceduralChanges in the Hearing Process, Final Rule, 54 FR 33168, 33171 (Aug.

11,1989).

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1 Under the Commission's Rules of Practice, a licensing board may consider matters on I

its motion only where it finds that a serious safety, environmental, or common defense and security matter exists.10 CFR 2.760a buch authority is to be exercised only in extraordinary

. circumstances. If a board decides to raise matters on its own initiat ve, i a copy of its ruling, setting forth in general terms its reasons, must be transmitted to the Commission and the General Counsel.~ Texas Utilities Generating Co. (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-81-24,14 NRC 614 (1981). The board may nct proceed further with sua sponte issues absent the Commission's approval. Tee scope of a particular proceeding is limited to the scope of the admitted contentions and any issues the Commission authorizes the  !

board to raise sua sponte.

Currently,10 CFR 2.714a allows a party to appeal a ruling on contentions only if (a) the order wholly denies a petition for leave to intervene (i.e., the order denies the petitioner's standing or the admission of all of a petitioner's contentions) or (b) a party other than the petitioner alleges that a petition for leave to intervene or a request for a hearing should have been wholly denied. Although the regulation reflects the Commission's general policy to minimize interlocutory review, under this practice, some novel issues that coute benefit from  ;

early Commission review will not be presented to the Commission. For example, n..ntw of first impression involving interpretation of 10 CFR Part 54 may arise as the staff and licensh,c j I

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board begin considering applications for renewal of power reactor operating licenses.

Accordingly, the Commission encourages the licensing boards to refer rulings or certify )

questions on proposed contentions involving novel issues to the Commission in accordance with 10 CFR 2.730(f) early in the proceeding. In addition, boards are encouraged to certify novellegal or policy questions related to admitted issues to the Commission as early as possible in the proceeding. The Commission may also exercise its authority to direct 1

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certification of such particular questions under 10 CFR 2.718(i). The Commission, however, will evaluate any matter put before it to ensure that interlocutory review is warranted, s

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4. Discovery Management Efficient management of the pre-trial discovery process is critical to the overall progress of a proceeding. Because a great deal of information on a particular application is routinely

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placed in the agency's public document rooms, Commission regulations already limit discovery against the staff. See, e.g.,10 CFR 2.720(h),2.744. Under the existing practice, however, the l 1

staff frequently agrees to discovery without waiving its rights to object to discovery under the rules, and refers any discovery requests it finds objectionable to the board for resolution. This l practice remains acceptable.

Application in a particular case of procedures similar to provisions in the 1993 amendments to Rule 26 of the Federal Rules of Civil Procedure or informal discovery can improve the efficiency of the discovery process among other parties. The 1993 amendments to l Rule 26 provide, in part, that a party shall provide certain information to other parties without waiting for a discovery request. This information includes the names and addresses, if known, of individuals likely to haw discoverable information relevant to disputed facts and copies or descriptions, including location, of all documents or tangible things in the possession or control of the party that are relevant to the disputed facts. The Commission expects the licensing l l

boards to order similar disclosure (and pertinent updates) if appropriate in the circumstances of l i l

individual proceedings. With regard to the staff, such orders shall provide only that the staff identify the witnesses whose testimony the staff intends to present at hearing. The licensing boards should also consider requiring the parties to specify the issues for which discovery is )

necessary, if this may narrow the issues requiring discovery.

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I Upon the board's completion of rulings on contentions, the staff will establish a case file containing the application and any amendments to it, and, as relevant to the application, any i

! NRC report and any correspondence between the applicant and the NRC. Such a case file l

! should be treated in the same manner as a hearing file established pursuant to 10 CFR 2.1231.

Accordingly, the staff should make the case file available to all parties and should periodically I

update it.

l Except for establishment of the case file, generally the licensing board should suspend l

I discovery against the staff until the staff issues its review documents regarding tre application.

Unless the presiding officer has found that starting discovery against the staff before the staff's review documents are issued will expedite the hearing, discovery against the staff on safety issues may commence upon issuance of the SER, and discovery on environmentalissues upon issuance of the FES. Upon issuance of an SER or FES regarding an application, and consistent with such limitations as may be appropriate to protect proprietary or other properly withheld information, the staff should update the case file to include the SER and FES and any supporting documents relied upon in the SER. or FES not already included in the file.

The foregoing procedures should allow the boards to set reasonable bounos and l schedules for any remai,,;ng' discovery, e.g., by limiting the number of rounds of interrogatories i

or depositions or the time for completion of discovery, and thereby reduce the time spent in the I

prehearing stage of the hearing process. In particular, the board should allow only a single round of discovery regarding admitted contentions related to the SER or the FES, and the discovery respective to each document should commence shortly after its issuance.

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l l Ill. CONCLUSION

' The Commission reiterates its long-standing commitment to the expeditious completion of adjudicatory proceedings while still ensuring that hearings are fair and produce an adequate record for decision. The Commission intends to monitor its proceedings to ensure that they are being concluded in a fair and timely fashion. The Commission will take action in individual l

proceedings, as appropriate, to provide guidance to the boards and parties and to decide l issues in the interest of a prompt and effective resolution of the matters set for adjudication.

Dated at Rockville, Maryland, this 28th day of July,1998.

For th9 Nuclear Regulatory Commission.

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' Annet'te Vietti-Cook, Assistant Secretary of the Commission.

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