ML20212K934
| ML20212K934 | |
| Person / Time | |
|---|---|
| Issue date: | 10/11/1984 |
| From: | Tourtellotte J NRC - REGULATORY REFORM TASK FORCE |
| To: | Asselstine, Palladino, Roberts NRC COMMISSION (OCM) |
| References | |
| AC22-1-034, AC22-1-34, NUDOCS 8608250133 | |
| Download: ML20212K934 (38) | |
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'o UNITED STATES fo NUCLEAR REGULATORY COMMISSION WASHIN GTON, D.C. 20555 U
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October 11, 1984 OFFICE OF THE COMMISSIONER MEMORANDUM FOR:
Chairman Palladino Comissioner Roberts Comissioner Asselstine Comissioner Bernthal Comissioner Zech FROM:
James R. Tourtellotte, Chairman-Regulatory Reform Task Force
SUBJECT:
THE HEARING PROCESS AND SECY-84_390 Attached is a sumary of public coments on the proposed changes to the Comission's rules of practice in 10 CFR Part 2.
This material may be considered by the Comission on October 23, 1984, in conjunction with SECY-84-390.
The RRTF will need some Comission guidance with respect to the issues which it wishes to pursue.
It will also be necessary to determine the relative disposition of these issues vis-a-vis the subject matter in SECY-84-390.
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SUMMARY
OF PUBLIC COMMENTS RECEIVED ON RRTF PROPOSALS FOR REFORMING THE HEARING PROCESS I. INTRODUCTION l
On April 12, 1984, the Comission published a request for public coment on a number of proposals, submitted by the Regulatory Reform Task Force (RRTF),
to amend the rules of practice governing the licensing of nuclear power plants.
49 Fed. Reg. 14698. The Comission determined that it would be appropriate to solicit public comments on the entire package of proposals before deciding on l
a particular course of action with respect to any or all of the individual proposals.
l I
l In response to the Comission's request, twenty nine letters of coment were received, The commenters were nine nuclear utilities or their counsel, I
nine intervenors or their counsel, four states, three individuals, an architect engineering firm, a nuclear manufacturer, an industry group, and an energy newsletter.
(A list of comenters is attached.)
In addition to addressing the specific proposals, many comenters stated their general views about the Comission's regulatory reform efforts. These coments are sumarized below.
l II. GENERAL VIEWS ON REGULATORY REFORM EFFORTS Support for the Comission's regulatory reform efforts was mixed. Of l
the twenty-seven commenters who addressed this subject, fourteen generally l
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' opposed the RRTF proposals, whereas thirteen generally favored them.
Opposed were ten intervenors or their counsel, three states, and an individual. They generally argued that the proposals were unnecessary and unfair, and would make public participation in NRC proceedings much more difficult, if not impossible. Several observed that intervenors have raised important safety issues and made valuable contributions to the hearing process. Many urged the Comission to develop proposals designed to l
l strengthen rather than hamper the effectiveness of intervenors.
Suggestions included intervenor funding, improved access to information, and various l
forms of procedural and legal assistance to intervenors.
One comenter, a state, confined its views to the effect of the proposals on the licensing of a high level waste repository.
It observed that, although the sumary and supplementary information published with the proposed rules referred only to nuclear power plant licensing, the proposals would clearly apply to repository licensing as well btcause they were addressed to all initial licensing proceedings. This comenter believed that such expedited procedures were inappropriate in the repository licensing context because of the need to secure public acceptance of the high level waste disposal program.
Supporting the proposals were nine utilities or*their counsel, an architect engineer, a nuclear manufacturer, an industry group, and an individual. They l
generally argued that the need for reform of the licensing process has long been recognized and urged the Comission to act swiftly on these proposals.
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- They believed that, for the most part, the proposals would streamline and simplify the hearing process, adding much needed stability and predicta-bility. Many observed that the purpose of licensing-hearings is the resolution of disputed issues among the parties and that the proposed reforms were designed to accomplish that purpose.
Some commenters suggested j
additional improvements to the hearing process, such as the promulgation of procedures for handling last minute allegations and greater Commission involvement in the management and scheduling of hearings.
One commenter, an energy newsletter, did not address the RRTF proposals per se.
Instead, it urged the Commission to judge all issues by whether delay or denial of the license would increase or decrease the number of expected deaths, injuries, diseases, and environmental impacts in comparison with energy produced by other sources. This commenter believed that nuclear power saves lives, and that any Commissioner voting for delay should be required to I
justify that action in terms of the obligation to protect the public health and safety.
III.
RRTF HEARING PROCESS PROPOSALS A.
Screening Process l
1.
Creation of a Screening Board l
The RRTF proposed the creation of a screening Atomic Safety and Licensing Board to rule on all requests for hearings, petitions to intervene, l
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_4 the admissibility of contentions, and issues which the presiding officer proposed to consider sua sponte. Twenty-one commenters specifically addressed this proposal. Twelve opposed the change, whereas nine were in favor of it.
Opposing the proposal were six intervenors or their counsel, two utilities or their counsel, a state, an individual, a nuclear manufacturer, and a nuclear industry group. They generally argued that there is no need for this proposal and that the individual licensing boards are better qualified to rule on requests for hearings, petitions to intervene, the admissibility of contentions, and issues which the boards have proposed to hear sua sponte. Some commenters were concerned that the screening board would be used to curtail public participation in licensing hearings. Others pointed out that screening board could create additional delay'and that greater predictability could be achieved by alterrla'te means. Suggestions included the use of special interlocutory appeals, lead cases, rebuttable presumptions, and clearer guidance for the licensing boards. A state noted that the proposal would be inappropriate in the context of a proceeding to license a high level nuclear waste repository because there would be no i
possibility of inconsistent rulings by different licensing boards.
l Those favoring the proposal were six nuclear utilities or their counsel, an architect engineering firm, a state, and an individual.
They argued that the screening board would add needed consistency and predictability to rulings on requests for hearing, petitions to intervene, admissibility of contentions, l
' and sua sponte matters. One commenter cautioned, however, that the screening
. ' board would have to be adequately staffed to ensure that it did not be'come a source of additional delay.
2.
Judicial Standards of Standing The RRTF proposed that presiding officers be required to apply judicial standards of standing in ruling on hearing requests and petitions to intervene.
This would eliminate discretionary intervention. Of the eighteen commenters who specifically addressed this proposal, eleven were in favor of it and seven were opposed. Those in favor were seven nuclear utilities or their counsel, a nuclear manufacturer, an architect engineer, an industry group, and an individual. They generally argued that discretionary intervention should be abolished in order to avoid the use of resources to resolve the concerns of persons without an interest sufficient to justify their participation as of right. One commenter indicated that it was unclear whether the standards for standing as of right would also be modified under this proposal.
In a similar vein, another commenter urged the Commission to require that a petitioner demonstrate injury in fact rather than allow the licensing boards to assume such injury based on geographical proximity alone.
Those opposed to the proposal were five intervenors or their counsel and two states. They noted that the Federal Register notice did not explain the need for the proposal and pointed out that discretionary intervention is r'arely invoked in any event.
Some maintained that the proposal is contrary
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' to Section 189a. of the Atomic Energy Act, which affords a hearing "upon the request of any person whose interest aggt e affected by the proceeding."
b (emphasisadded). An intervenor argued that discretionary intervention is appropriate in administrative proceedings because agencies, unlike federal courts, are not bound by jurisdictional limitations imposed by Article III of the U.S. Constitution.
Finally, a state noted that, although a high level waste repository host state would meet judicial standards of standing,
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those standards were inappropriate for potential intervenors in a waste repository licensing proceeding.
Because broad public participation would help to ensure public acceptance of the high level waste disposal program, this commenter urged that the possibility of discretionary intervention be retained.
1 3.
Admission of Contentions The RRTF proposed that the threshold for admission of contentions be raised, essentially to require the proponent of the contention to tender evidence suggesting the existence of a genuine factual dispute. Twenty-one connenters specifically addressed this proposal.
Eleven opposed it and ten supported it.
Those who supported the proposal were seven nuclear utilities or their counsel, an architect engineer, nuclear manufacturer, a nuclear industry group, and an individual. They generally argued that the proposal was needed in order to to eliminate the admission of baseless or frivolous contentions, i
' Several observed that the current standard is too lenient.
Four commenters urged the Commission to require that contentions be supported by prima facie evidence in order to be admitted. However, two commenters, while expressing general. support for the concept of increasing the threshold for admission of contentions, were concerned with the standard proposed. One indicated that it was too similar to that for summary disposition and that full-blown summary disposition procedures should not be employed. The other doubted that proposed i 2.714(g)(i)(iii) would withstand judicial scrutiny because it would require the identification of evidence prior to an opportunity for discovery. This commenter believed that the proposed requirement would be more appropriately imposed either after discovery or on summary disposition.
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Of the ten commenters who were opposed to the proposal, seven were intervenors or their counsel and three were states.
In general, they I
strongly objected to this proposal as unduly burdensome, particularly when combined with the proposed requirement that all contentions be submitted at the time the intervention petition or request for hearing is filed. To require detailed evidentiary support for contentions prior to discovery is unfair, they argued, and appears to be designed to discourage or eliminate public participation in NRC licensing proceedings.
Some commenters main-tained that such an approach would be a violation of both the Atomic Energy Act and due process.
Several commenters observed that the Commission's existing rules are sufficient to preclude the admission of baseless or frivolous contentions and that no need for the proposal had been demonstrated.
' S.
Conduct of the Hearing 1.
Control of Pretrial Discovery a.
Signature Requirement The RRTF proposed that pretrial discovery be more rigorously controlled by presiding officers. To prevent abusive or burdensome discovery, parties would be required to sign each discovery request, answer, objection, or motion. The signature would certify, among other things, that the filing was based on good faith and not primarily for the purpose of delay.
Ten commenters addressed this proposal.
Eight were in favor of it and two were apposed. Those in favor were three utilities or their counsel, a nuclear manufacturer, an architect engineer, a nuclear industry group, a state, and an individual. They generally observed that greater control of pretrial discovery by the presiding officer would be helpful and that the signature requirement would serve to remind parties of their obligations. A state noted that the proposed revisions substantially conform to the rules of practice in the federal courts and would be helpful in complex multi-party litigation such as the licensing of a high level waste repository.
Opposed to the proposal were two utilities or their counsel and an intervenor. One commenter argued that it was too cumbersome and might not remedy the problem. Another observed that the NRC does not have the enforcement powers of a federal court and could not order the payment of attorneys fees or other expenses. Accordingly, the proposal would accomplish
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little in the way of reform. The third commenter noted that the signature
' requirement was already imposed by 10 CFR 9 2.708(c) and was therefore~
unnecessary.
b.
Discovery Against the Staff The RRTF also proposed to limit permissible discovery against.the staff to matters which form the basis for the staff's position on a given issue.
Discovery requests would not be permitted to require the staff to perform additional work or to explain why matters not relied on by the staff were not considered.
Thirteen commenters addressed this proposal.
Seven were opposed, five were in favor, and one had mixed reactions to the proposal. The seven who were opposed were six intervenors or their counsel and a state. They generally. maintained that the staff's position on a given issue may be crucial and that the public has a right to inquire why the staff has taken the position it advocates. A state pointed out that such a restriction would be particularly inappropriate in a proceeding to license a high level waste repository, because of the greater need for public scrutiny of the staff's views. Several commenters argued that discovery against the staff is already too restricted and should be liberalized. Others observed that burdensona-ness is already a ground for objection to discovery requests and that no need for the proposed restriction had been shown. Two commenters preferred former Commissioner Gilinsky's suggestion that the staff be removed as a
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' party. They cautioned, however, that staff members should still be made available for discovery or as witness licensing proceeding.
One comenter, a utility, considered it reasonable to limit discovery against the staff to matters which form the basis for the staff's position.
However, this comenter believed that the staff should be required to explain why it did not rely on information that could possibly alter its conclusions.
This would ensure that matters which should have been considered were not overlooked.
Those favoring the proposal to restrict discovery against the staff were three utilities or their counsel, an architect engineer, and an individual.
They agreed that the staff should not be required to perform additional work or to explain why matters not relied on were not considered.
One commenter urged that similar provisions be extended to the applicant, whereas another would have the Comission extend the restriction to all parties.
Two comenters, both counsel to nuclear utilities, recommended that the rule include time limits for discovery to eliminate a potential source of delay. Such limits could be subject to change, either in the board's discretion or on a showing of good cause.
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- 2.
Presentation of Evidence a.
Evidence to be Submitted in Writing The RRTF proposed that, to the fullest extent possible, all evidence, direct and rebuttal, be submitted in writing. A special need for live testimony, including cross-examination, would have to be demonstra'ted.
I Of the twenty commenters who addressed this proposal, twelve were opposed to it and eight were in favor. Opposed were five intervenors or their l
counsel, three states, three utilities or their counsel, and an individual.
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They generally considered the proposal unduly burdensome in view of the fundamental importance of the right to cross-examination. Some considered i
the proposed restrictions in violation of the Administrative Procedure Act or a der.ial of due process, particularly when coupled with the time ifmits and other restrictions set forth in the proposal.
Others maintained that the credibility of witnesses is often at issue in NRC proceedings and that cross-examination is essential in such instances. One commenter noted that written cross-examination would not eliminate unskilled questioning and may exacerbate it. Another suggested that the proposed standard for allowing.
cross-examination was unduly restrictive.
This commenter suggested that cross-examination should be allowed if a party identified one or more disputed issues of material fact, and demonstrated how cross-examination would assist in resolving the dispute and would not be cumulative.
- Finally, a state commented that, in a repositcry licensing proceeding, a full opportunity for cross-examination must be provided to assure the public i
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' that all relevant facts, opinions, and assumptions are completely exposed.
Otherwise, the process would not be acceptable to the public.
Those in favor of the proposal were four utilities, an architect engi-neer, a nuclear manufacturer, an industry group, and an individual. They generally observed that technical issues are more appropriately dealt with in written testimony and that the credibility of witnesses is not ordinarily at issue in NRC proceedings. One commenter noted that a clear standard is needed for when cross-examination will be allowed; otherwise, cross-examination may be allowed unnecessarily or parties denied cross-examination will appeal the denial.
Two commenters suggested essentially the same test
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as mentioned above; that the written evidence gives rise to a genuine and substantial dispute of fact and that resolution of the dispute would be substantially assisted by cross-examination. Another cannenter observed that some flexibility is needed to allow for live rebuttal testimony, especially where cross-examination is permitted. This would be more efficient than i
deferred, written rebuttal and could be a matter for the licensing board's discretion.
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b.
Cross Examination Plans The RRTF further recommended that detailed cross-examination plans be submitted to assist the presiding officer in deciding whether cross-examination would be meaningful and should be permitted. Of the thirteen commenters who specifically addressed this proposal, eight were in favor
,of it and five were opposed. Those in favor were six utilities or their counsel, a nuclear manufacturer, and an individual. They generally believed that cross-examination plans would help to focus cross-examination and eliminate its use for the purpose of " fishing expeditions" or delay. This would make the hearing process more efficient and perhaps shorten it. One commenter observed that a standard for judging the adequacy of cross-examination plans is needed. Two commenters noted that cross-examination plans have been widely and successfully used in NRC licensing proceedings and should be required.
Opposed to the proposal were three intervenors or their counsel, a state, and counsel to a number of nuclear utilities.
In general, they considered cross-examination plans to be unduly burdensome and not very useful. They also objected to the 10-day time limit for filing motions for cross-examination and cross-examination plans following the receipt of written testimony. Several maintained that the cumulative effect of these provisions would be to preclude cross-examination altogether.
3.
Panels of Technical Experts I
The RRTF proposed to allow the screening board or the presiding officer conducting the hearing to appoint a panel of technical subject-matter experts. Such experts could assist the screening board in determining whether there is a technical basis for a proposed contention or could sit w'ith the presiding officer to hear evidence and prepare recommendations or i
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14 conclusions. Of the thirteen commenters who addressed this proposal, seven were opposed to it and six were in favor. Opposed to the proposal were three intervenors or their counsel, a counsel to various nuclear utilities, an architect engineer, a nuclear manufacturer, and an industry group. Four comenters believed that the use of such panels was unnecessary and would likely contribute to additional delay of the hearing process.
The remaining three commenters objected to the lack of an opportunity to cross-examine
,i the experts or otherwise challenge their opinions and conclusions.
One connenter observed that this procedure would be illegal, citing Seacoast Anti-Pollution League v. Costle, 572 F.2d 872 (1st Cir.1978).
l Those in favor of the proposal were five utilities or their counsel I
and an individual. They generally supported the proposal, believing it would be of assistance to the boards. Most expressed some reservations, however. One observed that procedural safeguards are needed to allow the parties to examine and challenge the experts' opinions and conclusions, either in writing or through the introduction of additional evidence.
Another noted that the boards should be bound by the experts' factual findings to avoid appeals of all disagreements between the conclusions of the expert panels and the board;. A third comenter was concerned about who would bear the expense of the expert panels. A fourth did not object to the proposal but noted that it was inconsistent with the goal of limiting O
hearings to the resolution of disputes. Because the addition of what might become a separate layer of review had the potential for expanding the issues i
and lengthening the proceeding, this commenter believed that some limitations on the proposal were needed.
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- 4.
Limitations on a Board's Authority to Raise Issues Sua Sponte The RRTF proposed to limit the authority of an adjudicatory board to raise issuessuasponte(onitsownmotion). Such authority would be limited to extraordinary circumstances and would be used sparingly.
Issues proposed to be raised sua sponte by an adjudicatory board would be-referred to a screening board for a determination of whether the matter should be considered at the hearing.
Of the thirteen commenters who addressed this proposal, nine were in favor of it. They were five nuclear utilities or their ccunsel, an architect engineer, a nuclear manufacturer, an industry group, and an individual. They agreed that the sole function of licensing hearings should be the resolution of disputes and that the issues to be considered should be confined to those l
raised by the parties.
Five commenters believed that the Commission should go further and completely eliminate an adjudicatory board's sua sponte authority.
Four commenters opposed the proposal. They generally believed that an adjudicatory board's authority to raise issues sua sponte was important to the protection of the public health and safety. They argued that no need had been shown for the proposal, and that the board's sua sponte authority was in accordance with its responsibilities under the Atomic Energy Act, the Commission's regulations, and NEPA.
f 5.
Summary Disposition To encourage the use of sumary disposition procedures to dispose of
- issues prior to hearing, the RRTF proposed to allow motions for sumary
-disposition to be filed at any stage of the proceeding.
In addition, it proposed to eliminate as unnecessary the present prohibition against deter-mining on summary disposition the ultimate issue of whether a construction permit should be authorized.
Thirteen comenters addre:: sed the first aspect of this proposal.
Seven i
were opposed to it and six were in favor.
Of those who were opposed, six were intervenors or their counsel and one was a nuclear utility. They were generally concerned that summary disposition motions filed either just before or during the hearing would divert resources from the conduct of the proceed-ing. Several commenters were concerned with the effect of having to respond to such motions at inopportune times, particularly prior to the completion of discovery when a party might not yet have sufficient information to contest the motion successfully.
Some were particularly concerned that the proposal could be used to burden intervenors unfairly.
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In favor of the proposal to allow summary disposition motions to be filed at any time were two utilities or their counsel, an architect engineer, a nuclear manufacturer, an industry group, and an individual. They generally believed that the proposal would prevent unnecessary litigation and should be adopted. One commenter observed, however, that the filing of written
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se submittals of evidence is an important prerequisite, and another cautioned that some limitations on summary disposition motions filed just before or during the hearing might be warranted.
Only three commenters specifically addressed the second aspect of the t
i RRTF proposal, concerning the use of summa,ry disposition to decide the ultimate issue of whether a construction permit should be authorized. Two intervenors maintained that the proposal was contrary to the Atonic Energy Act and should be rejected. Acounseltovariodsnuclearutilitiesviewedthepresent p
prohibition as unnecessary and urged the Commission to adopt the proposal.
6.
Uncontroverted Motions j
The RRTF proposed to require that motions which are not controverted by other parties be granted by the presiding officer to the extent authorized l
by law. Of the eleven commenters who addressed this proposal, seven were opposed to it and four were in favor.
d Opposed to the proposal were five intervenors or their counsel, a state, and a counsel to various nuclear utilities.
In general, they were concerned I
that intervenors might not have the re. sources to oppose all motions and that undeserving motions might be granted as a. result.
Several wer6 particularly concerned that unopposed motions for summary disposition filed at"inoppor-tune times would be granted in this manner, because the licensing board would be precluded from holding open an issue that might involve public l
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- health and safety questions where intervenors lacked the necessary resources to controvert the motion. One commenter believed that the proposal would create additional delay because every motion would be opposed, regardless of whether it was worthy of response. Another commenter opposed the proposal because some parties might not serve their motions on all other parties.
Those in favor of the proposal were two utilities or their counsel, an architect engineer, and an individual.
In general, they simply noted that unopposed motions should be granted. One commenter observed that the pro-posal made good sense, explaining that the staff provides a check absent a well-financed intervenor.
7.
Hearing Examiners The RRTF proposed to add an express provision to recognize that the Commission may designate a qualified hearing examiner to preside in initial licensing proceedings instead of a three-member licensing board. Of the nine commenters who addressed this proposal, six were in' favor of it and three were opposed. Those in favor of the proposal were two utilities or their counsel, an architect engineer, a nuclear manufacturer, an industry group, and an individual. They generally indicated their support for the proposal without elaboration. One commenter explained that the use of a three-member board can result in delay, scheduling conflicts, and logistical problems and that the technical members can add another layer of technical B
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review, depending on the composition of the board. Two commenters noted that the " qualified hearing examiner" should be an administrative law judge.
Opposing the proposal were two utilities or their counsel and an intervenor. They generally maintained that the technical-input of the three-member boards is important and should be retained. One commenter observed that the elements of consensus and exchange of opinion are needed to decide some issues.
C.
Decisionmaking Process 1.
Abolition of the Appeal Panel The RRTF proposed to remove the Atomic Safety and Licensing Appeal Panel as an independent, intermediate administrative appellate tribunal.
- Instead, the Panel would function as a staff office of the Commission and would be responsible for reviewing and drafting decisions on adjudicatory matters.
Of the eighteen commenters who addressed this proposal, twelve were opposed to it and six were in favor. Opposed to the proposal were six intervenors or their counsel, two utilities or their counsel, two indi-t viduals, a state, and an industry group. They generally considered the Appeal Panel an important or necessary part of the adjudicatory process, noting that appeal board decisions are of high quality and impart a degree of predictability and consistency to NRC adjudications. One commenter observed
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' that appeal board decisions can serve to prevent reversible error on judicial review. Many commenters argued that the Comission has neither the time nor the resources to conduct a thorough review of licensing board decisions and that no need for the proposal had been established. Several intervenors maintained that this proposal, coupled with reinstatement of the immediate effectiveness rule, would eviscerate the right to appeal.
Several utilities or their counsel observed that the Comission could take measures short of abolishing the Appeal Panel to ensure that undue policymaking authority is not delegated or assumed. Suggestions included more active Comission review of appeal board decisions, elimination of an appeal board's sua sponte review l
authority, and an advisory role for the appeal boards on policy matters. One commenter also urged autonatic interlocutory appeal board review of inter-vention and scheduling disputes to expedite the hearing and to avoid pro-tracted appeals.
Those in favor of abolishing the Appeal Panel were five utilities or their counsel and an architect engineer. They generally believed that the I
proposal would expedite the hearing process by eliminating an unnecessary layer of review. They also favored greater Comission involvement in the 4
review of adjudicatory decisions. One comenter urged that the Appeal Panel j
be eliminated entirely rather than retained as opinion writers because the former panel members would try to impose their views on the Comission.
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- 2.
Codification of Generic Issues The RRTF proposed the addition of a rule which would allow the expedi-tious codification of generic factual issues resolved in initial licensing proceedings.
This would preclude the relitigation of such issues in subse-quent proceedings involving similar facilities or reactors.
Of the fifteen ccmmenters who addressed this proposal, seven were in favor of it. Another four agreed with it in principle, and four were opposed.
Those in favor were four utilities or their counsel, a nuclear manufacturer, an industry group, and an individual. They generally believed that the proposal was sensible and would conserve resources. One commenter would go further to include generic factual issues resolved through summary disposi-tion. Another recommended that the proposal be modified to permit the Commission to determine whether to issue a notice of proposed rulemaking.
This would be preferable to requiring the issuance of such a notice in every Case.
Four commenters agreed with the proposal in principle but had problems with its implementation. Three were nuclear utilities or their counsel and one was an architect engineer. They were generally concerned with the ade-quacy of the definition of generic factual issues and the wasted effort that could result from codification of every generic factual issue, regardless of merit or need.
One commenter viewed the proposal as worthy of consideration only if an issue could not be removed from individual licensing proceedings
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- and resolved generically by rulemaking. Another suggested that the screening board deny admission of contentions already decided in other proceedings, recognizing that the legality of such an approach was questionable and would have to be investigated.
Opposing the proposal were four intervenors or their counsel. They, too had concerns about the adequacy of the definition of generic factual issues and the lack of guidance with regard to the importance of the issues to be codified. They also noted that the proposal did not address the interests of intervenors in other proceedings in which similar issues were admitted.
One commenter observed that the Commission should inform such intervenors of their right. to participate in the generic rulemaking. Another argued that the proposal would violate intervenors' due process rights.
Finally, a commenter criticized the proposal as unnecessary, explaining that the staff can institute a rulemaking whenever a satisfactory generic solution presents itself and that individual solutions to generic problems are not generally suitable for industry-wide application.
3.
Limitation on Intervenors' Filings I
The RRTF proposed to prohibit an intervening party from filing proposed findings of fact and conclusions of law, or exceptions 1/ o initial decisions, t
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The requirement that exceptions be filed in connection with appeals from initial decisions was eliminated in 1983. The RRTF proposal preceded that deletion and was not subsequently amended to conform to it. Accordingly, the RRTF proposal should be considered a restriction on the right to appeal, rather than the right to file exceptions to an initial decision.
' with respect to issues not placed in controversy by that party. The proposal was intended to pennit agency adjudicators to focus on the issues as pre-sented and argued by the partes with the chief interest in the issue.
Of the seventeen commenters who addressed this proposal, nine believed it should be adopted. Those in favor were five utilities or their counsel, an architect engineer, a nuclear manufacturer, an industry group, and an individual. They generally believed the proposal would conserve resources and save time. Several recommended that the Commission also prohibit intervenors from presenting evidence or conducting cross-examination on issues that they had not placed in controversy. One commenter noted that.
the presiding officer should strike proposed findings and conclusions filed in contravention of the proposal. Another suggested that a party with a right to file proposed findings who elected not to do so be precluded from appealing the initial decision.
Finally, one commenter observed that, while desirable, the proposal might not have much practical impact because the licensing boards currently have and use the authority to consolidate 4
intervenors under 10 CFR 2.715(a). This has the effect of reducing the number of parties who file proposed findings of fact and conclusions of law or take appeals from initial decisions.
t Opposed to the proposal were six intervenors or their counsel, a utility, and a state. They generally believed that the proposal was unnecessary and would unreasonably interfere with intervenors' right to contribute to the record on issues affecting their interests. They also observed that it would
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' prevent intervenors from pooling their resources and could. lead to the adoption of other intervenors' contentions in order to preserve their rights.
For this reason, one commenter considered the proposal potentially counterproductive. Others maintained that the quality of the record would be adversely affected.
4.
Restoration of the Immediate Effectiveness Rule The RRTF proposed to restore the immediate effectiveness rule for all initial decisions. This would eliminate the current appeal board and Commission review procedures and allow all initial decisions to take effect immediately.
Eleven out of seventeen commenters were in favor of this proposal. They were seven utilities or their counsel, an architect engineer, a nuclear manufacturer, an industry group, and an individual. They generally agreed that the additional review procedures were no longer needed. They also l
believed that the lengthy staff review and hearing process provide the initial decision with a presumption of validity that should require a showing of good cause to overcome.
Several noted that the additional delay l
is costly to consumers and does not result in increased protection of the public health and safety. They also observed that the existing stay procedures are adequate to accommodate those cases in which a serious health, safety, or environmental question is raised. One commenter also favored a staged approach in which a license applicant would receive a series
- of preliminary approvals to proceed with various stages of construction or start-up of the reactor.
Opposed to the proposal were five intervenors or their counsel and an individual. They argued that the lessons of the TMI accident have not been adequately observed and that effectiveness review procedures are still needed as a result. They also believed that a return to the immediate effectiveness rule would give licensees the momentum of construction or operation that would discourage' the appeal boards and courts from later revoking their licenses. One commenter observed that changes to a plant could be made more easily and with lower radiation exposures before it had operated and, for this reason, operation should await the completion of all appellate review.
5.
Issuance of License ~s by the Executive Director for Operations The RRTF proposed that the responsibility for the issuance of licenses authorized by initial decisions rest with the Executive Director for Operations (ED0), who is the chief staff officer of the Commission, rather than with the Director of Nuclear Reactor Regulation or Nuclear Material Safety and Safeguards, as appropriate. Only three commenters addressed this proposal.
Two commenters, a utility counsel and an individual, opposed the proposal, whereas an architect engineer favored it.
The utility counsel observed that the proposal appeared to create another layer of review. Because license issuance is a technical decision, this commenter believed that the responsi-bility should rest with the appropriate staff office director. The other
' two commenters simply noted their views without elaborating on them. Some commenters regarded the proposal as solely an internal NRC concern, and did not express an opinion for that reason.
IV. MISCELLANEOUS RRTF PROPOSALS In addition to the major proposals discussed above, the RRTF suggested a number of miscellaneous changes to the rules of practice. These were described in a section-by-section analysis of the proposed rules. The comments received on these proposals are summarized below.
A.
Definitions (10 CFR 2.4)
Two connenters addressed the definitions of " initial licensing" and "presidingoffir.er"inproposed592.4(r)and(s). One, a utility counsel, simply noted its support for the addition of these definitions. The other, an intervenor, incorrectly argued that the term " presiding officer" refers to the chairman of an adjudicatory board or an administrative law judge and should not be redefined to refer to the entire board.2/
-2/
Throughout Part 2, the term " presiding officer" is used to refer to an entire adjudicatory board, where appropriate.
See, e.g., 10 CFR 95 2.105(e)(2) and 2.704(a).
4
- 27 _
B.
Notice of Hearing (10 CFR 66 2.104 and 2.105)
The RRTF proposed to limit presiding officers to deciding disputes of fact (except for required NEPA issues) in mandatory construction permit I
proceedings, and to preclude litigation of issues not specified in the notice of hearing for other proceedings unless good cause were shown for considering additional issues. Seven commenters opposed this proposal and one supported it.
Opposed were six intervenors or their counsel and an individual. They generally argued that the Comission may not legally preclude the litigation of issues that are material to the question of whether a license should issue. They also pointed out that in mandatory construction permit hearings, the issues listed in existing i 2.104(b)(1) must be considered even if they are uncontested. The utility counsel in favor of the proposal simply pointed out that the licensing boards shculd resolve contested issues rather than perform yet another layer of safety review.
C.
Alternative Procedures (10 CFR 2.700a)
The RRTF proposed the addition of a provision allowing the Comission j
to prescribe sur.h alternative procedures as it deemed necessary in initial l
licensing proceedings. Such procedures would be specified in the notice of hearing or notice of opportunity for hearing. Three commenters addressed this proposal. Two commenters, both nuclear utilities or their counsel, indicated their support for the proposal without elaboration. Counsel for an intervenor
- i objected to the proposal as unfair, noting that public participants should be afforded the certainty that the fundamental procedural rules of NRC hearings will not be arbitrarily changed. This commenter also believed that an opportunity for public discussion should be provided in connection with proposed changes to those procedural rules.
D.
Consolidation of Parties (10 CFR 2.715a)
The RRTF proposed to require presiding officers to consolidate parties in initial licensing proceedings, absent a showing by a party that its rights 1
would be prejudiced. Seven commenters addressed this proposal.
Five were i
opposed to it and two were in favor.
Opposed to the proposal were five intervenors or their counsel. They generally believed that mandatory consolidation of parties would seriously interfere with the ability of intervenors to pursue their own interests independently. They also observed that no need for the proposal had been demonstrated.
Because the rules already provide for consolidation of parties, they viewed the proposal as an unwarranted interference with the licensing board's discretion.
Two commenters, both utilities or their counsel, indicated their support i
for the proposal. One noted that the licensing boards have done a good job of consolidating intervenors under the present rule and recommended the dismissal of any party who opposed consolidation but could not demonstrate prejudice to its interest.
I
' E.
Discovery (10 CFR 2.740)
The RRTF proposed to allow the presiding officer to limit the number of interrogatories that could be filed. An intervenor's counsel argued that the measure was arbitrary, potentially unfair, and unnecessary given the existing rule, which allows the presiding officer to judge the need for interrogatories on an individual basis. This commenter also noted that the proposal could result in the omission or distortien of important questions and should be rejected.
l F.
Examination of Experts (10 CFR 2.733)
The RRTF proposed a minor, addition to this section to clarify that examination and cross-examination of expert witnesses by technically quali-fied individuals may be permitted only to the extent that oral direct or i
cross-examination is otherwise permitted. A utility counsel recommended that the Commission consider simply removing i 2.733 because the need for it was not apparent and it had contributed little to the hearing process.
G.
Authority of Presiding Officer to Regulate Conduct of the Hearing (10 CFR 2.754)
The RRTF proposed to make mandatory the Comission's presently permissive admonition that presiding officers should limit the number of witnesses whose testimony may be cumulative, and strike argumentative, repetitious, cumulative, or irrelevant evidence.
Four comenters addressed this proposal. Two were
' in favor of it and two were opposed.
In favor were two utilities or their counsel, who simply noted their support for the proposal. Opposed were two intervenors or their counsel, who argued that the present rules are adequate and that the proposal could lead to the exclusion of important testimony if the licensing board's discretion were eliminated.
H.
Appendix A to Part 2 The RRTF proposed to delete Appendix A to Part 2 as unnecessary. A utility counsel indicated support for this proposal without elaboration.
An intervenor objected to the proposal, arguing that the Appendix provides useful background and explanation for those who are less familiar with the hearing process.
V. COMMISSIONER ASSELSTINE'S PROPOSALS l
l In a statement of his separate views, Commissioner Asselstine I
criticized the RRTF proposals and put forth his own suggestions for reforming the licensing process. Of the eight commenters who addressed these proposals, seven were generally in favor of them and one was opposed. Those in favor were six intervenors or their counsel and a state. They generally believed that Commissioner Asselstine's proposals were more reasonable and would truly improve the licensing process. Some of them expressed reservations about l
specific proposals, however. An industry group opposed the proposals, arguing that they would not generally solve the current problems of instability and
c unpredictability in the hearing process.
Specific connents on Connissioner Asselstine's suggestions are summarized below.
Connissioner Asselstine suggested that a notice of receipt of each reactor license application be published to permit to interested persons an t
opportunity to inform the Connission of their interest. Thereafter, such persons would be notified of meetings between the NRC staff and the appli-cant, and the staff would hold periodic meeting with interested persons to hear and respond to their concerns. A local public document room would also be established following the notice.
i l
Two intervenors indicated their support for this proposal, although one noted that the local public document room would have to be monitored to assure that it received complete and timely information. An industry group, while not objecting to the staff's holding periodic meetings with interested persons, observed that this would not be likely to satisfy the concerns of organizations that are involved in the hearing process. An intervenor dis-agreed, believing that some issues could be resolved outside the hearing and 1
that intervenors would be better informed and more effective with regard to issues that did go to hearing.
Commissioner Asselstine next suggested that a notice of opportunity for j
hearing be issued following the staff's docketing review, requiring interested i
persons to file intervention petitions within one month. The only question to be considered by the licensing board in ruling on the petition would be whether l
6 32 -
i the person had standing to intervene; contentions would not be required at this stage.
1 Two intervenors or their counsel indicated their support for this proposal. They recommended, however, that a notice of opportunity for hearing not be published until all necessary licensing documents are complete and available in order to enable intervenors to frame their contentions and conduct discovery effectively. An industry group argued that admitting intervenors on
]
standing alone was inconsistent with the purpose of the hearing, which is the resolution of disputes.
Intervenors admitted as parties would be given three months to review available documents and to prepare contentions.
Contentions would be admitted provisionally if they met present standards for admissibility and were accompanied by a statement of significant facts with supporting references, l
unless the licensing board determined that the intervenor could prove no set of facts that would. entitle it to relief. A period of four to six months l
l would be provided for discovery, and extensions could be granted only for i
good cause shown. The boards would be directed to supervise discovery l
closely.
l Two commenters, both intervenors or their counsel, supported these proposals, but noted that the necessary licensing documents must be available for the formulation of contentions and the conduct of discovery. Another l'ntervenor approved of the time periods specified for contentions and
--_--.._-..,,-...,_-,m___,.-.._,_,,..__,,
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. discovery but considered the additional requirements for admissibility of contentions burdensome and unnecessary. An industry group considered the proposals for provisional admission of contentions and open discovery a source of additional delay.
It also opposed denying contentions only if it appeared beyond doubt that an intervenor could prove no set of facts in support of its claim for relief. This commenter considered the standard too difficult to meet and argued that resolving doubts in favor of the applicant is appropriate for a regulatory agency.
Finally, a state observed that four to six months was probably inadequate for discovery in a proceeding to license a high level waste repository.
At the close of discovery, the licensing board would rule on whether to proceed with a hearing on factual contentions. A hearing would be held on i
only those contentions for which an intervenor established that a genuine issue of material fact exists. An intervenor's counsel, while approving the standard to be used, observed that it was unclear whether this review would replace summary disposition procedures. This commenter believed that any such review of contentions should be initiated by the parties rather than the board. Otherwise, the parties might waste time preparing pleadings where there was no actual disagreement between them.
Concissioner Asselstine suggested that a presumption of good cause be 4
accorded late-filed contentions that are dependent on the institutional unavailability of necessary information, such as staff documents.
An inter-venor's counsel supported this proposal, but noted that it was preferable
o
.a 4 :
simply to postpone the formulation of contentions until the documents were made available. Another intervenor argued that good cause should be the only i
factor in the admissibility of late-filed contentions because the other 4
factors currently specified in 10 CFR 2.714 usually weigh in the applicant's favor and can preclude a fair and thorough hearing on important issues.
i i
j The licensing boards would be granted the authority to call experts as board witnesses and the parties would be permitted to request the board to call expert witnesses on issues to be litigated in the proceeding. Two j
commenters, both intervenors or their counsel, supported this proposal, j
although one cautioned that any experts called must be subject to discovery and cross-examination. An industry group opposed the proposal, considering it inappropriate and an indirect method of funding intervenors.
a As a matter of policy, the licensing boards would be directed to require l
the preparation and use of cross-examination plans for extended cross-l examination of witnesses in the hearing. Two intervenors opposed this pro-i posal, citing the need for flexibility in cross-examination and the danger i
that it could result in arbitrary limitation of their right to cross-examine
{
witnesses. A third intervenor did not object to' the proposal so long as it was not used to deny or restrict intervenors' rights.
I Finally, hybrid hearing procedures similar to those specified in the l
Nuclear Waste Policy Act would be used on an experimental basis with the consent of all parties. An intervenor objected to the proposal because the I
g
' burden of proof in such proceedings would be shifted to intervenors and poorer decisions would result. An industry group expressed no opinion on the advisability of the proposal, but noted that if such procedures are to be employed, they should be required for all proceedings. A state assumed that such experimental procedures would not be used in licensing the first high level waste repository.
It also urged that if specialized procedures are needed for repository licensing, the Comission should undertake to define them precisely and as soon as possible.
VI. COMMISSIONER GILINSKY'S VIEWS In a statement of his separate views, former Comissioner Gilinsky noted his agreement with Comissioner Asselstine's proposals. !!e added that the staff should cease to be a full party seeking issuance of the license, and that the Comission should replace the Appeal Board as the direct reviewer of licensing board decisions. Comments on the proposal to abolish the Appeal Panel as an independent, intermediate appellate tribunal are discussed in Part III, above. Two commenters, both intervenors, agreed that the staff should cease to be a full party advocating issuance of the license. These coments are more properly considered in connection with the possible initia-tion of a separate rulemaking on the role of the staff in initial licensing proceedings.
l
1
,i' 4
LIST OF COMENTERS 1.
Duquesne Light 2.
Access to Energy 3.
North Carolina Public Interest Research Group 4.
State of New York, Department of Law 5.
John Greer. berg 6.
State of Minnesota, Office of the Attorney General i
7.
Yankee Atomic Electric Company 8.
[ misfiled]
9.
Lynne Goodman
- 10. New England Coalition on Nuclear Pollution
- 11. Ohio Citizens for Responsible Energy 12.
[requestforextensionoftime]
- 13. West Branch Conservation Association
- 14. Southern California Edison Company
- 15. State of Nevada, Nuclear Waste Project Office
- 16. Sinnissippi Alliance for the Environment
- 17. Seacoast Anti-Pollution League
- 18. Martha Drake l
- 19. Troutman, Sanders, Lockerman & Ashmore (on behalf of Georgia Power Company)
- 20. Conner &Wetterhahn,P.C.(onbehalfofitselfandvariousclients) l l
f
~~
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s
,, 21. Baltimore Gas and Electric Company
- 22. Le Boeuf. Lamb, Lieby & MacRae (counsel to a number of nuclear utilities)
- 23. Marvin I. Lewis
- 24. Consumers Power Company
- 25. State of Washington, Energy Facility Site Evaluation Council 26.
Stone & Webster Engineering Corporation
- 27. Bishop, Libeman, Cook, Purcell & Reynolds (on behalf of the Nuclear Utility Backfitting and Reform Group)
- 28. Westinghouse Electric Corporation
- 29. Atomic Industrial Forum, Inc.
- 30. New York Public Interest Research Group
- 31. Harmon & Weiss (on behalf of the Union of Concerned Scientists)
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