ML19347F085
| ML19347F085 | |
| Person / Time | |
|---|---|
| Issue date: | 03/13/1981 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| Shared Package | |
| ML19347F082 | List: |
| References | |
| FRN-46FR17216, RULE-PR-2 NUDOCS 8105150230 | |
| Download: ML19347F085 (12) | |
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[7590-011 NUCLEAR REGULATORY COMMISSION 4
10 CFR Part 2 RULES OF PRACTICE FOR DOMESTIC L'ICENSING PROCEEDINGS Expediting the NRC Hearing Process AGENCY:
U.S. Nuclear Regulatory Commission ACTION:
Proposed Rule
SUMMARY
The Nuclear Regulatory Commission is considering amending its Rules of Practice to facilithte expedited conduct of adjudica-tory proceedings on applications to construct or operate nuclear power plants.
'ihe Commission is proposing these amendments for comment because it is apparent that unless some action is taken a number of nuclear power reactors will be completed prior to the completion of required adjudicatory hearings.
These proposed amendments are intended to minimize the time lag between NRC adjudicatory decisions and plant completion.
DATES:
Comment period expires on April 7,1981.
No requests i
for extensions of time will be granted.
ADDRESSES:
All interested persons who desire to submit comments in connection with the proposed amendments should send them to the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555 Attention:
Docketing and Service Branch.
Copies of comments on the proposed amendments may be examined at the i
Com-4ssion's.Public Document Room at 1717 H Street, N.W., Washington, (
D.C.
8105150.2.30 Enclo w e 3 l.
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i FOR FURTHER-IUFORMATION CONTACT:. Martin G. Malsch, Esq., Deputy General Counsel, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555 (202 634-1465).
SUPPLEMENTARY INFORMATION:
Following the Three Mile Island acci
- dent of March 28, 1979, the Nuclear Regulatory Commission reassigned most of its staff who had been reviewing applications seeking authorization to construct or operate nuclear power reactors to such as investigating the cautas of 'the accident, other tasks, assuring the safety of other ope. rating power reactors and develo'p-ing new generic safety requirements based on the lessons learned l
l from the accident.
As a direct result of these reassignments it has recently become apparent that if the licensing process is not altered, construction of a number of plants on which adjudicatory hearings are being held will be completed prior t'o the completion of the hearings.
The resulting delay costs to utilities and, I
ultimately, ratepayers could run into billions of dollars.
To eliminate or mitigate these potential impacts, the Co= mission's l
technical staff has proposed a substantial reordering of staff i
review resources.
The aim here was to achieve whatever time l
savings were possible without changes to the hearing process.
However, it does not appear that reallocation of staff resources alone will be sufficient.
Accordingly, the Commission has examined the hearing process to see where that process might P
3 (7590401) s be expedited.
The Commission's legal offices have developed for Commission consideration the hearing schedule set forth below for NRC adjudicatory proceedings on construction permit and operating license applications.
This proposed schedule is intended to serve as a guideline for NRC's Administrative Judges.
In the more complicated cases, which involve a large number of parties and contentions, additional time may be required.
In simple cases less time may be required.
The schedule reflects an objective that hearings on issues should c'e=nence as soon as possible, con-sistent with fairness, after completion of the staff review on those issues necessary for hearing.
Otrly hearings on discrete issues addressed in SER's will be required, unless segmentation of the hearing would clearly be counterproductive.
The schedule assumes that there is sufficient new information in the staff's safety evaluation supplement to allow parties to demonstrate good cause for acceptance of late contentions and permitting another round of discovery.
This, of course, need not be the case and whether this will prove to be the case in pending and future proceedings will depend on numerous factors.
The proposed schedule is:
Event Day Into Process l
Publication of Final Supplemental SER 0
Required Prior to Hearing -- Discovery on this Doc.ument Begins Discovery. Ends 25
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1 Revised Contentions, if any, Filed 25 Prehearing and Settlement Conferen'e 40 c
Licensing Board Rules on Revised Contentions 50 Parties File Testimony 80 Hearing Begins 95 Hearing Ends 135 All Proposed Findings Filed 175 240 Licensing Board Decision In order to meet this proposed eight-con'th schedule, several changes in the Coc=ission's Rules of Practice would be required.
1.
Currently, parties to NRC licensing proceedings may
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engaSe in formal discovery against the KRC staff.
Under the acendments as proposed for co==ent the opportunity to engage in for=al discovery against the' staff would be eliminated.
Staff, however, would produce relevant docu=ents and would respond to telephone and written recuests for information wherever practicable.
It is contemplated that most of the discoverable information can ultimately be l
produgedat the hearing on cross-examination of l*
staff witnesses.
The rule change would essentially l
l 1 eave the decision to staff whether to allocate l
resources to respond to infc=ral discovery or pro-vide resources in the form of witnesses at hearings.
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(7590-01) 2.
NRC regulations require the Licensing Board to prepa're written orders on those motidns submitted to it in writing.
The proposed regulations would permit the Boards, when appropriate, to rule upon motions orally.
3.
Under the present regulations, parties are permitted to file motions requesting the Licensing Board to recon-sider prehearing orders it has issued.
The proposed rules would not permit such notions.
4.
Currently, at least two Lictasing B'oard members partici-pate in each substantive order issued.
The proposed amendments would authorize the Licensing Board Chairman to act alone on prehearing catters.
Despite this delegation of authority it would be within the dis-cretion of the Chairman to consult the other members on appropriate matters before action.
5.
NRC regulations provide for filing of proposed find-ings of fact and conclusions of law.
After all parties (including the applicant) have submitted pro-posed findings, the applicant is given ten days to reply.
Under the proposed rules, the right of the
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applicant to file a reply to the other parties ' sub-missions would be eliminated.
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6.
Currently, parties to proceedings must file any motions requesting summary disposition at least forty-five days prior to the start of the hearing.
In order to provide the opportunity for greater use of such -
motions, and to provide the Boards more flexibility in conducting the proceeding, the proposed rules would permit motions for summary disposition to be filed at any time.
However the Board could use its authority over the conduct of the proceeding to set time licits on summary disposition tailored to the circumstances of the proceeding.
7.
If the Commission adopts any cf these revisions described above, it would make the appropriate con-forming changes to 10 CFR Part 2, Appendix A.
In preposing for comment these changes aimed at shortening the hearing process, the Commission wishes to emphasire that it does not intend to make changes which reduce the overall quality of NRC adjudicatory proceedings or which are inconsistent with basic fairness.
Because these changes, if adopted, would be applicable i
to pending NRC adjudicatory proceedings, where parties have been
~proceeding in accordance with th'e current rules, the Commission is particularly interested in obtaining the views of participants in NRC hearings on how the proposed schedule and rule changes would
' affect:
(1) the quality of the various proceedings; and (2) the parties' participation in such proceedings.
Copies of this notice
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(7590-01'j of proposed rulemaking will be served on parties to pending proceedings.
As the Commission continues its examination of the hearing process, it may find that other rule changes are required.
Public comment, when appropriate, will be sought on any such changes.
REGULATORY FLEXIBILITY ACT:
In accordance with the Regulatory F exibility Act of 1980, 5 U.S.C. 605(b), the Commission hereby certifies that this rule will not, if promulgated, have a sig-nificant economic impact on a substantial number of small entities.
This rule affects the Co= mission's rules of practice and procedures by per=itting expedition of the licensing process.
PROPOSED REGULATORY CHANGES :. Pursuant to the Atomic Energy Act of 1954, as amended, the Energy Recrganization Act of 1974, as amended, and section 553 of the United States Code, notice is hereby given that adoption'of the following amendments to 10 CFR Part 2 are contemplated.
PART 2--RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS 1.
In i 2.720, paragraph (h)(2) is revised to read as follows:
5 2.720 Subpoenas (h) ***
(2) In a proceeding in which the NRC is a party, the NRC staff will make available one or more witnesses designated by the Executive Director for Operations
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for oral examination at the hearing regarding any matter, not privileged, which is relevant to the issues t
in the proceeding.
The attendance and testimony of the Commissioners and named NRC personnel at the hearing or on deposition may not be required by the presiding officer, by subpoena or otherwise:.Provided, That the 4
presiding officer may, upon a showing of exceptional circumstances, such as a case in which a particular l
named NRC employee has direct personal knowledge of a
. material fact no't known to the witnesses made available by the Executive Director for Operations require the attendance and testimony of named NRC personnel at the hearing.
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2.
In ! 2.'721, paragraph (d) is revised to read as f ollows.:
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5 2.721 Atomic safety and licensing boards.
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i (d)(1) An atomic safety and licensing board shall have the duties and may exercise the powers of a j
presiding officer as granted by 5 2.718 and other-wise in this part.
At any time when such a board is in existence but is not actually in session, any powers which could be exercised by a p' residing r
officer or by the Chief Administrative Law Judge may be exercised with. respect to such a proceeding by the chairman of the board having jurisdiction l
over it.
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l (d)(2) The chairman of the board may exercise all powers of a presiding officer with regard to conten-l tions, discovery, scheduling, and other matters
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which come before the presiding efficer for decision before the commencement of the hearing.
The Chairman may, in his discretion, consult with the ;ther board members before exercising this authority.
l (d)(3) Except as noted in (d)(1) and (d)(2) of i
this paragraph, no board action can be taken with-l l
out the participation of a cuorum of the board.
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Two me=bers of an atomic safety and licensing board constitute a quorum, if one of those members is the member qualitied in the conduct of adminis-trative proceedings.
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3.
In 5 2.730, paragraph (e) is revised to read:
$ 2.730 Motions (e) The Board may dispose of written motions either by written order or by oral ruling during the course of a prehearing conference or hearing.
4.
In 5 2.740, paragraph (f)(3) is revised to read as follows:
5 2.740- General provisions governing discovery.
(f) ***
(3) This section does not preclude an independent request for issuance of a suopoena directed to a person not a party for production of documents and things.
This section does not apply to requests for the testimony of the staff pursuant to 5 2.720(h)(2) or production of NRC documents pursuant to 5" 2.790.
5.
In 5 2.740a, paragraph (j ) is revised to read as follows:
5 2.740a Deposition upon oral examination and upon written interrogatories (j ) The provisions of paragraphs (a) through (i) of this section are not applicable to discovery against NRC personnel.
These employees cannot be compelled to submit to depositions or respond to written interroga-tories.
1 6.
In 5 2.740b, paragraph (a) is revised to read as follows:
5 2.740b Interrogatories to parties.
(a) Any party may serve upon any other party -
(other than the staff) written interrogatories to e
(7590-01) 10 be answered in writing by the party served, or if the party served is a public or private corporation or a partnership or associatio'n, by any officer or
.agen, who shall furnish such information as is t
'available to the party.
A copy of the interroga-tories, answers, and all related pleadings shall be filed with the Secretary of the Commission and shall be served on the presiding officer and upon.all parties to the proceeding.
7.
f 2.744 is revised to read as follows:
i 2.744 Production of NRC records and documents.
All requests for NRC records or documents must be requested pursuant to 5 2.790 and 10 CFR Part 9.
i 8.
In 5 2.749, paragraph (a) is revised to read as follows:
i 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 presiding officer in that party's favor as to all or any part of the matters involved in the proceeding.
There shall be annexed to the motion a separate, short and concise statement of the material facts as to which the moving party con-tends that there is no genuine issue to be heard.
Motions shall be filed within such time as may be fixed by the presiding officer.
Any other party 3
may serve an answer supporting or opposing the motion, with or without affidavits, within twenty (20) days after service of the motion.
There shall be annexed to any answer opposing the motion a i
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 require.1 t
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 presiding officer shall permit the opposing party an opportunity to respond in writing to new facts and arguments presented in anf supporting statements e
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i Which were not presented in the ? apers of the moving party.
Any such response shall be served within such time limits as the presiding officer may establish and shall address only the new facts and 4
' arguments presented in the supporting statement.
No further supporting statements or responses thereto shall be entertained.
9.
In S 2.751a, paragraph (d) is revised to read as follows :
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5 2.751a Special prehearing conference in construction and operating license proceedings 4
(d) The presiding officer shall enter an order 4
which recites the action taken at the conference, the schedule for further actions in the proceeding, any agree =ents by the parties, identifies the key l
issues in the proceeding, makes a preliminary or final determination as to the parties in the pro-ceeding, and provides for the sub=ission of status 3
reports on discovery.
The order shall be se.rved upon all parties to the proceeding.
The order shall control the subsequent course of the proceed-ing.unless modified for good cause.
Objections to or requests for reconsideration of the order will not be entertained.
10.
In 5 2.752, paragraph (c) is revised to read as follows :
5 2.752 Prehearing conference i
(c) The presiding officer shall enter-an order which recites the action taken at the conference, the amendments allowed to the pleadings and agreements by the parties, and which limits the issues or defines the matters in controversy to be deter =ined in the proceeding.
The order shall i
be served upon all parties to the proceeding.
The order shall control the subsecuent course of the proceeding _unless modified foi good cause.
Objec-tions to or requests for reconsideration of the order will not be entertained.
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11.
Section 2.754 is amended by deleting paragraph (a)(3).
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5AMUrL
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Secretary of the Cocsission Dated at Washington, D.C.
this 13th day of March, 1981.
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'.c AMEJ T. BRCYHILL o.
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Congre## of ti.)c IEiniteb fptates
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Mouse of Reprtsentatibeg
.vo.cr no m EEashington,D.C. 20515 J u '."* C s,m nsy m u,oro.ciou coM Mancs W)mem April 8, 1981 I
Honorable Joseph M. Hendrie, Chairman United States Nuclear Regulatory Commission l
Washington, D.C.
20555
Dear Chairman Hendrie:
I am most appreciative of your letter of April 2,
- 1981, and the information contained therein about the licensing of the McGuire Station in North Carolina.
i I am, of course, gratified that the final operating license can possibly be granted several months prior to that anticipated in January.
However, I am still disappointed that the Commission has not responded to my request for legislative or administrative changes to make these decisions prior to com-pletion of construction.
Believe me, sir, I intend to pursue this matter.
- Please, may I have your active cooperation and participation in this effort?
W'th best
- aJards,
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i mes T.
Broyhill embar of Congress l
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