[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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