[Federal Register Volume 63, Number 150 (Wednesday, August 5, 1998)]
[Notices]
[Pages 41872-41875]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-20781]


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NUCLEAR REGULATORY COMMISSION


Policy on Conduct Of Adjudicatory Proceedings; Policy Statement

AGENCY: Nuclear Regulatory Commission.

ACTION: Policy statement: update.

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SUMMARY: The Nuclear Regulatory Commission (Commission) has reassessed 
and updated its policy on the conduct of adjudicatory 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.

DATES: This policy statement is effective on August 5, 1998, while 
comments are being received. Comments are due on or before October 5, 
1998.

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

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

[[Page 41873]]

Statement of Policy on Conduct of Adjudicatory Proceedings

[CLI-98-12]

I. 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 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, 
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 proceedings.
    The Commission continues to endorse the guidance in its current 
policy, issued in 1981, on the conduct of adjudicatory proceedings. 
Statement of Policy on Conduct of Licensing 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 boards 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 additional 
improvements to the adjudicatory process.

II. Specific Guidance

    Current adjudicatory procedures and policies provide a latitude to 
the Commission, its licensing boards and presiding officers to instill 
discipline in the hearing 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 discovery; 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 the context of a particular proceeding. See, e.g., 
Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), 
CLI-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.

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 
Sec. 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, discovery, 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 opportunity to participate meaningfully in the proceeding. Other 
expedited forms of service of documents in proceedings may also be 
appropriate. The Commission encourages the licensing boards to consider 
the use of new technologies to expedite proceedings as those 
technologies become available.
    Boards should forego the use of motions for summary disposition, 
except upon a written finding that such

[[Page 41874]]

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 Statement 
(FES) regarding an application, unless the presiding officer finds that 
beginning earlier, e.g., by starting 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 
staff's ability to complete its evaluations in a timely manner. Boards 
are 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 can conduct the proceeding in a manner that 
will not unduly burden the parties. Private Fuel Storage, L.L.C. 
(Private Fuel Storage Facility), CLI-98-7, 47 NRC ____ (1998).
    The Commission itself may set milestones for the completion of 
proceedings. If the Commission sets milestones in a particular 
proceeding and the board determines that any single milestone could be 
missed by more than 30 days, the licensing board must promptly so 
inform the Commission in writing. The board should explain why the 
milestone cannot be met and what measures the board will take insofar 
as is possible to restore the proceeding to the overall schedule.

2. Parties' Obligations

    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 their obligations. The parties to a proceeding, therefore, are 
expected to adhere to the time frames specified in the Rules of 
Practice in 10 CFR Part 2 for filing and 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 some circumstances, 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 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

    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 fact. 
1 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 Sec. 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 Sec. 2.714(b)(2), and 
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 and 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 environmental issues 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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    \1\ ``[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--Procedural Changes in 
the Hearing Process, Final Rule, 54 FR 33168, 33171 (Aug. 11, 1989).
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    Under the Commission's Rules of Practice, a licensing board may 
consider matters on its motion only where it finds that a serious 
safety, environmental, or common defense and security matter exists. 10 
CFR 2.760a. Such authority is to be exercised only in extraordinary 
circumstances. If a board decides to raise matters on its own 
initiative, 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 not proceed 
further with sua sponte issues absent the Commission's approval. The 
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 could 
benefit from early Commission review will not be presented to the 
Commission. For example, matters of first impression involving 
interpretation of 10 CFR Part 54 may arise as the staff and licensing 
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

[[Page 41875]]

the Commission in accordance with 10 CFR 2.730(f) early in the 
proceeding. In addition, boards are encouraged to certify novel legal 
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 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.

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 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 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 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 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 
have 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 boards to order 
similar disclosure (and pertinent updates) if appropriate in the 
circumstances of 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.
    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 NRC report 
and any correspondence between the applicant and the NRC. Such a case 
file 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 update it.
    Except for establishment of the case file, generally the licensing 
board should suspend discovery against the staff until the staff issues 
its review documents regarding the 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 environmental issues 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 
bounds and schedules for any remaining discovery, e.g., by limiting the 
number of rounds of interrogatories or depositions or the time for 
completion of discovery, and thereby reduce the time spent in the 
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.

III. 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 proceedings, as appropriate, to provide guidance 
to the boards and parties and to decide 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 the Nuclear Regulatory Commission.
Annette Vietti-Cook,
Assistant Secretary of the Commission.
[FR Doc. 98-20781 Filed 8-4-98; 8:45 am]
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