[Federal Register Volume 76, Number 39 (Monday, February 28, 2011)]
[Proposed Rules]
[Pages 10781-10805]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-4345]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 76, No. 39 / Monday, February 28, 2011 /
Proposed Rules
[[Page 10781]]
NUCLEAR REGULATORY COMMISSION
10 CFR Parts 2, 51, and 54
[NRC-2008-0415]
RIN 3150-AI43
Amendments to Adjudicatory Process Rules and Related Requirements
AGENCY: Nuclear Regulatory Commission.
ACTION: Proposed rule.
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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC or the Commission)
is proposing to amend its adjudicatory rules of practice. This proposed
rule would make changes to the NRC's adjudicatory process that NRC
believes will promote fairness, efficiency, and openness in NRC
adjudicatory proceedings. This proposed rule would also correct errors
and omissions that have been identified since the major revisions to
the NRC's Rules of Practice in early 2004.
DATES: Comments on the proposed rule must be received on or before May
16, 2011. Comments received after this date will be considered if it is
practical to do so. However, the NRC is able to ensure consideration
only of comments received on or before this date.
ADDRESSES: Please include Docket ID NRC-2008-0415 in the subject line
of your comments. For instructions on submitting comments and accessing
documents related to this action, see Section I, ``Submitting Comments
and Accessing Information'' in the SUPPLEMENTARY INFORMATION section of
this document. You may submit comments by any one of the following
methods:
Federal rulemaking Web site: Go to http://www.regulations.gov and
search for documents filed under Docket ID NRC-2008-0415. Address
questions about NRC dockets to Carol Gallagher, telephone: 301-492-
3668; e-mail: [email protected].
Mail comments to: Secretary, U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001, ATTN: Rulemakings and Adjudications Staff.
E-mail comments to: [email protected]. If you do not
receive a reply e-mail confirming that we have received your comments,
contact us directly at 301-415-1966.
Hand-deliver comments to: 11555 Rockville Pike, Rockville, Maryland
20852 between 7:30 a.m. and 4:15 p.m. during Federal workdays
(telephone: 301-415-1966).
Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at
301-415-1101.
FOR FURTHER INFORMATION CONTACT: Tison Campbell, Office of the General
Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001,
telephone: 301-415-8579, e-mail: [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Submitting Comments and Accessing Information
II. Background
III. The Decision to Issue a Proposed Rule
IV. Effectiveness of the Final Rule
V. Discussion of Changes and Corrections of Errors
A. Part 2--Title
B. Subpart C--Sections 2.300 Through 2.390
C. Subpart G--Sections 2.700 Through 2.713
D. Subpart L--Sections 2.1200 Through 2.1213
E. Subpart M--Sections 2.1300 Through 2.1331
F. Subpart N--Sections 2.1400 Through 2.1407
G. Other Changes
VI. Additional Issues for Public Comment
A. Scope of Mandatory Disclosures
B. Alternative Approaches on Interlocutory Appeals
VII. Section-by-Section Analysis
A. Introductory Provisions--Sections 2.1 Through 2.8
B. Subpart A--Sections 2.100 Through 2.111
C. Subpart C--Sections 2.300 Through 2.390
D. Subpart G--Sections 2.700 Through 2.713
E. Subpart H--Sections 2.800 Through 2.819
F. Subpart L--Sections 2.1200 Through 2.1213
G. Subpart M--Sections 2.1300 Through 2.1331
H. Subpart N--Sections 2.1400 Through 2.1407
I. Parts 51 and 54
VIII. Plain Language
IX. Voluntary Consensus Standards
X. Environmental Impact: Categorical Exclusion
XI. Paperwork Reduction Act Statement
Public Protection Notification
XII. Regulatory Analysis
XIII. Regulatory Flexibility Act Certification
XIV. Backfit Analysis
I. Submitting Comments and Accessing Information
Comments submitted in writing or in electronic form will be posted
on the NRC Web site and on the Federal rulemaking Web site, http://www.regulations.gov. Because your comments will not be edited to remove
any identifying or contact information, the NRC cautions you against
including any information in your submission that you do not want to be
publicly disclosed. The NRC requests that any party soliciting or
aggregating comments received from other persons for submission to the
NRC inform those persons that the NRC will not edit their comments to
remove any identifying or contact information, and therefore, they
should not include any information in their comments that they do not
want publicly disclosed.
You can access publicly available documents related to this action
using the following methods:
NRC's Public Document Room (PDR): The public may examine and have
copied for a fee publicly available documents at the NRC's PDR, Room
O1-F21, One White Flint North, 11555 Rockville Pike, Rockville,
Maryland 20852.
NRC's Agencywide Documents Access and Management System (ADAMS):
Publicly available documents created or received at the NRC are
available electronically at the NRC's Electronic Reading Room at http://www.nrc.gov/reading-rm/adams.html. From this page, the public can gain
entry into ADAMS, which provides text and image files of NRC's public
documents. If you do not have access to ADAMS or if there are problems
in accessing the documents located in ADAMS, contact the NRC's PDR
reference staff at 1-800-397-4209, or 301-415-4737, or by e-mail to
[email protected].
Federal rulemaking Web site: Public comments and supporting
materials related to this proposed rule can be found at http://www.regulations.gov by
[[Page 10782]]
searching on Docket ID NRC-2008-0415.
II. Background
In a final rulemaking published in the Federal Register on January
14, 2004, 69 FR 2181 (2004 part 2 revisions), the NRC substantially
modified its rules of practice governing agency adjudications--Title 10
of the Code of Federal Regulations (10 CFR) part 2. Portions of 10 CFR
parts 1, 50, 51, 52, 54, 60, 63, 70, 72, 73, 75, 76 and 110 also were
amended at that time. On May 11, 2004 (69 FR 25997), the NRC corrected
errors in 10 CFR part 2, Appendix D.
Since the new rules of practice became effective, provisions
requiring correction or clarification of ambiguities, and several areas
where further improvements could be achieved, have been identified.
Therefore, the NRC is publishing this proposed rule to solicit public
comments on proposed corrections of those errors and proposed
improvements to the rules governing its adjudicatory proceedings.
Participants in NRC adjudicatory proceedings who will use these rules
should note that several revisions to 10 CFR part 2 also were adopted
in recent years:
Licenses, Certifications, and Approvals for Nuclear Power
Plants (72 FR 4935; August 28, 2007) (Part 52 Rule);
Use of Electronic Submissions in Agency Hearings (72 FR
49139; August 28, 2007) (E-Filing Rule);
Limited Work Authorizations for Nuclear Power Plants (72
FR 57415; October 9, 2007);
Delegated Authority To Order Use of Procedures for Access
to Certain Sensitive Unclassified Information (73 FR 10978; February
29, 2008);
Interlocutory Review of Rulings on Requests by Potential
Parties for Access to Sensitive Unclassified Non-Safeguards Information
and Safeguards Information (73 FR 12627; March 10, 2008); and
Protection of Safeguards Information (73 FR 63545; October
24, 2008).
III. The Decision To Issue a Proposed Rule
The amendments in this proposed rulemaking are procedural rules
exempt from the notice and comment requirements of the Administrative
Procedure Act (APA) and NRC regulations. 5 U.S.C. 553(b)(3)(A) and 10
CFR 2.804(d)(1). Nonetheless, the NRC is issuing this rulemaking as a
proposed rule for public comment in order to benefit from stakeholder
input.
IV. Effectiveness of the Final Rule
The new and amended requirements in the final rule would not be
retroactively applied to presiding officer determinations and decisions
issued prior to the effective date of the final rule (e.g., a presiding
officer order in response to a petition or motion), nor would these
requirements be retroactively imposed on parties, such that a party
would have to compensate for past activities that were accomplished in
conformance with the requirements in effect at the time, but would no
longer meet the new or amended requirements in the final rule. Further,
in ongoing adjudicatory proceedings if there is a dispute over an
adjudicatory obligation or situation arising prior to the effective
date of the new rule, such disputes would be governed by the former
rule provisions. However, the new or amended requirements would be
effective and govern all obligations and disputes that arise after the
effective date of the final rule. For example, if a Board issues, prior
to the effective date of the final rule, a scheduling order
incorporating by reference Sec. 2.336(d), which requires parties to
update their disclosures every 14 days, that obligation would change to
30 days once the effective date of the rule is reached. Therefore,
Licensing Boards should be aware of the effectiveness of the final rule
and take the necessary steps to notify parties of their obligations
once the final rule becomes effective.
V. Discussion of Changes and Corrections of Errors
A. Part 2--Title
The current title of 10 CFR part 2, Rules of Practice for Domestic
Licensing Proceedings and Issuance of Orders, does not accurately
reflect the scope, nor does it track the language of the APA. The NRC
is proposing a new title for 10 CFR part 2: Agency Rules of Practice
and Procedure, which would better reflect the scope of its subparts and
would mirror the language of the APA.
B. Subpart C--Sections 2.300 Through 2.390
1. Section 2.305--Service of documents; methods; proof.
Section 2.305(c)(4) currently refers to ``any paper,'' which could
be interpreted to exclude electronic documents filed through the NRC's
E-Filing system. The NRC is therefore proposing to clarify that a
signed certificate of service must be included with ``any document''
served upon the parties in a proceeding under 10 CFR part 2. Under this
rule, the certificate of service must include the name and address of
each person upon whom service is being made (which for electronic
submissions under the E-Filing system should include, at a minimum, the
name and e-mail address used for service of each person in the E-Filing
system service list for a proceeding upon whom service needs to be
made) and the date and method of service. Because it is the
responsibility of a participant submitting a document to the E-Filing
system to comply with the service requirements, a certificate of
service that simply states the document is being served ``per the
service list in the E-Filing system'' without listing the names and
addresses of each of those being served is insufficient to comply with
Sec. 2.305(c)(4). The NRC notes that Sec. 2.304 requires that
electronic documents be signed using a participant's digital
certificate; in such circumstances it is not necessary to submit an
electronic copy of the document that includes an actual signature.
Paragraph 2.305(g)(1) does not currently provide an address for
service upon the NRC staff when a filing is not being made through the
E-Filing system and no attorney representing the NRC staff has filed a
notice of appearance in the proceeding. The proposed paragraph (g)(1)
would provide addresses to be used to accomplish service on the NRC
staff in these circumstances.
2. Section 2.309--Hearing requests, petitions to intervene,
requirements for standing, and contentions.
Section 2.309 contains the generally applicable procedures for
requesting hearings and submitting petitions to intervene in NRC
proceedings, and sets forth the requirements for submitting contentions
and establishing legal standing to participate in NRC proceedings. The
NRC is proposing to make several changes to Sec. 2.309.
a. Section 2.309(b)--Timing.
Section 2.309(b)(5) currently references orders issued under Sec.
2.202, but does not reference notices of violation imposing a civil
penalty issued under Sec. 2.205. Section 2.205 notices of violation,
like Sec. 2.202 orders, provide ``twenty (20) days * * * or other time
specified in the notice'' for individuals to file an answer. This
provision does not match the 60 days allowed by Sec. 2.309(b), which
could be interpreted as applying to Sec. 2.205 notices of violation.
The proposed Sec. 2.309(b)(5) would correct this omission by adding a
reference to Sec. 2.205 to reflect that notices of violation issued in
Sec. 2.205 civil penalty proceedings have timing requirements similar
to those of Sec. 2.202 orders.
[[Page 10783]]
b. Sections 2.309(c) and (f)--Subsequent Submission of Petition/
Request or New or Amended Contentions.
Current Sec. 2.309(c)(1) contains eight balancing factors that
determine whether to grant or admit ``nontimely'' hearing requests,
intervention petitions, or contentions. These factors include the three
factors for standing--also found at Sec. 2.309(d)(1)(ii) through
(iv)--and the following five factors: Good cause for the failure to
file on time; the availability of other means to protect the
requestor's or petitioner's interest; the extent to which the
requestor's or petitioner's interest will be represented by other
parties; the extent to which the requestor's or petitioner's interest
will broaden the issues or delay the proceeding; and the extent to
which the requestor's or petitioner's participation may reasonably be
expected to assist in developing a sound record. The ``good cause''
factor is given the most weight, and ``[i]f a petitioner cannot show
good cause, then its demonstration on the other factors must be
`compelling.''' Dominion Nuclear Connecticut, Inc. (Millstone Nuclear
Power Station, Units 2 and 3), CLI-05-24, 62 NRC 551, 564-65 (2005)
(footnote with citation omitted).
Good cause is not defined in the regulations, but has been defined
by the NRC in case law as a showing that the petitioner ``not only * *
* could not have filed within the time specified in the notice of
opportunity for hearing, but also that it filed as soon as possible
thereafter.'' Id. In addition, Sec. 2.309(f)(2) identifies three
factors to be considered in determining whether to admit a new or
amended contention. These factors include whether the new or amended
contention is based on information that was not previously available.
For example, if a document has not been prepared and is referred to as
a forthcoming document, the appropriate time to file a contention based
upon the document is after its publication. The two remaining factors
in Sec. 2.309(f)(2) include whether the information that was not
previously available is materially different from information that was
previously available, and whether the new or amended contention has
been submitted in a timely fashion after the availability of the new
information. The Sec. 2.309(f) three factor test appears to be a
specific application of the case law definition of ``good cause.''
Thus, in practice, the admissibility of late-filed contentions
usually depends on whether good cause is found. A showing that many of
the other factors support the admission of a late-filed contention is
rarely sufficient to overcome a lack of good cause. See, e.g., Private
Fuel Storage (Independent Spent Fuel Storage Installation), LBP-00-28,
52 NRC 226, 239-240 (2000) and Tennessee Valley Authority (Watts Bar
Nuclear Plant, Unit 2), CLI-10-12, ---- NRC ---- (Mar. 26 2010) (slip
op.) (the Commission noted that ``it would be a rare case where we
would excuse a non-timely petition absent good cause'') Id. at 2. And
in other cases, the NRC's determination on the existence of good cause
appears to turn on one or two factors unique to that proceeding, with a
generic recitation or cursory acknowledgement of the other factors and
how they offset each other. See, e.g., Crow Butte Resources (North
Trend Expansion Project) LBP-08-06, 67 NRC 241, 259-260 (2008).
The proposed rule would simplify the requirements governing
requests for hearing, intervention petitions, or new or amended
contentions filed after the deadlines in Sec. 2.309(b) by: (1) Making
good cause the sole factor to be considered when evaluating whether to
review the admissibility of a new or amended contention, petition, or
hearing request; (2) defining good cause as those factors currently in
Sec. 2.309(f)(2)(i) through (iii); (3) adding clarifying information
regarding the need to address interest and standing; and (4) referring
to ``nontimely'' contentions as ``new or amended.'' Although we would
no longer use the terms ``late-filed'' or ``nontimely'' and would use
the term ``new or amended'' to refer to contentions filed after the
initial filing date for contentions had expired, the current NRC case
law would continue to be applied in ruling on those requests.
The proposed amendments to Sec. 2.309 would apply the good cause
factor to all filings after the initial filing deadline and would adopt
the current Sec. 2.309(f)(2)(i) through (iii) factors as the standards
to be applied when evaluating whether good cause exists. This change
would simplify the review of filings after the deadlines in Sec.
2.309(b). These changes would allow the parties, participants, and the
presiding officer to focus their resources on the most relevant
questions related to the admissibility of new or amended contentions
(i.e., whether good cause exists and whether the contentions meet the
admissibility requirements of Sec. 2.309(f)).
Section 2.309(c)(1) would require a requestor or petitioner to
provide a justification supporting the filing after the deadlines in
Sec. 2.309(b), consisting of ``good cause'' as defined in Sec.
2.309(c)(2). Paragraph (c)(2) would treat the three criteria for
considering new or amended contentions that are currently contained in
paragraph (f)(2) as the factors that must be considered under the good
cause determination of proposed paragraph (c)(1). The NRC believes that
the factors in current Sec. 2.309(f)(2)(i) through (iii) are a useful,
specific application of ``good cause.'' Presiding officers should
evaluate whether a filing after the deadlines in Sec. 2.309(b)
satisfies the factors in Sec. 2.309(c)(2)(i) through (iii) to
determine whether a petitioner has demonstrated good cause.
Proposed paragraph (c)(3) would make clear that, apart from
demonstrating good cause, a petitioner seeking admission to the
proceeding after the deadlines in Sec. 2.309(b) would need to satisfy
standing and contention admissibility requirements. Paragraph (c)(4)
would apply to a participant or a party who seeks admission of a new or
amended contention, and who has already satisfied the standing
requirements in Sec. 2.309(d).
This revision would, in part, adopt a line of reasoning first
proposed by an Atomic Safety and Licensing Board in the Vermont Yankee
power uprate proceeding; the Board concluded that new or amended
contentions filed after the initial filing need not satisfy the Sec.
2.309(c)(1) factors if the Sec. 2.309(f)(2)(i) through (iii) factors
are met. Entergy Nuclear Vermont Yankee LLC (Vermont Yankee Nuclear
Power Station), LBP-05-32, 62 NRC 813 (2005). The NRC believes that
this should be the appropriate standard for presiding officers to apply
when evaluating whether good cause exists.
The NRC invites comments on the effect (if any) of eliminating the
other late-filing factors and relying solely on good cause. As
discussed above, case law has shown that good cause is given the most
weight when evaluating new or amended contentions, and absent good
cause, the other factors must be--but are rarely found to be--
compelling. Would limiting the late-filing criteria to good cause have
a detrimental effect on a petitioner's ability to have new or amended
contentions admitted? How often, without showing good cause, have
petitioners been able to rely on the other factors to meet the
requirements of Sec. 2.309(c)? Should the NRC consider removing only
some of the other late-filing requirements? If so, which ones?
c. Section 2.309(d)--Standing.
Section 2.309(d) sets forth the standing requirements and also
contains some requirements that do not generally relate to standing. To
clarify and to better articulate the generally applicable standing
requirements, several revisions to Sec. 2.309(d) are being proposed.
The
[[Page 10784]]
general standing criteria in Sec. 2.309(d)(1) would remain the same. A
revised Sec. 2.309(d)(2) would adopt the requirements of the first
sentence of current Sec. 2.309(d)(3), which requires the presiding
officer to consider the paragraph (d)(1) factors when determining
whether the petitioner has an interest affected by the proceeding.
Revised paragraph (d)(3) would retain the existing provision that in
enforcement proceedings the licensee or other person against whom the
action is taken is deemed to have standing. Current Sec. 2.309(d)(2)
contains special requirements for States, local governmental bodies,
and Federally-recognized Indian Tribes that seek status as parties in
proceedings. But some of these requirements (e.g., the need to propose
one or more contentions; the need to designate a single representative)
do not relate to standing. The present Sec. 2.309(d)(2) provisions
would be revised and would be moved to a new Sec. 2.309(h), which is
discussed in the next section.
d. Section 2.309(d)(2) moved to 2.309(h)--State, local governmental
body, and Federally-recognized Indian Tribe.
As stated, the present Sec. 2.309(d)(2) provisions for government
participation, which do not contain generally applicable standing
requirements like the rest of Sec. 2.309, would be revised and moved
to a new Sec. 2.309(h). The proposed Sec. 2.309(h)(1), based on the
existing Sec. 2.309(d)(2)(i), would require any State, local
governmental body or Federally-recognized Indian Tribe seeking to
participate as a party to submit at least one admissible contention.
This section would also include the requirement that each governmental
entity designate a single representative for the hearing. If a request
for hearing or petition to intervene were granted, the NRC would admit
as a party a single designated representative of the State, a single
designated representative for each local governmental body (county,
municipality, or other subdivision), and a single designated
representative for each Federally-recognized Indian Tribe, as
applicable. This proposed section would also require, as provided in
the statement of considerations for the 2004 part 2 revisions, that:
Where a State's constitution provides that both the Governor and
another State official or State governmental body may represent the
interests of the State in a proceeding, the Governor and the other
State official/government body will be considered separate potential
parties. Each must separately satisfy the relevant contention
requirement, and each must designate its own representative (that
is, the Governor must designate a single representative, and the
State official must separately designate a representative). (69 FR
2182, 2222; January 14, 2004).
The proposed Sec. 2.309(h)(2) would be based on the existing Sec.
2.309(d)(2)(ii), which states that in any potential proceeding for a
facility (the term ``facility'' is defined in Sec. 2.4) located within
its boundaries, the State, local governmental body or Federally-
recognized Indian Tribe seeking party status need not further establish
its standing. As revised, proposed Sec. 2.309(h)(1) and (h)(2) would
delete the word ``affected'' from the phrase ``Federally-recognized
Indian Tribe.'' The use of ``affected'' in this context is proper only
in a high-level radioactive waste disposal proceeding. For the same
reason, the NRC proposes to remove ``affected'' from Sec. 2.315(c)
(regarding interested government participation) and from the definition
of ``Participant'' added to Sec. 2.4 in the E-Filing Rule (August 28,
2007; 49139, 49149). Existing Sec. 2.309(d)(2)(iii) would be
redesignated as Sec. 2.309(h)(3).
e. Section 2.309(h) moved to 2.309(i)--Answers to requests for
hearing and petitions to intervene; Replies to answers.
The present Sec. 2.309(h), governing the filing of answers and
replies to hearing requests and petitions to intervene, would be
redesignated as Sec. 2.309(i) and would be further revised. The
current Sec. 2.309(h)(1) refers to ``proffered contentions,'' the
preamble of current Sec. 2.309(h) limits paragraph (h) to filing
deadlines for hearing requests and intervention petitions, and there is
no clear reference to contentions submitted after the initial filing.
The NRC believes that the same deadlines should apply to answers and
replies for new or amended contentions as apply to intervention
petitions and hearing requests filed after the deadlines in Sec.
2.309(b). The NRC is therefore proposing to amend this section to
include answers and replies to requests to admit new or amended
contentions after the initial filing. Because this change would cover
all filings after the deadlines in Sec. 2.309(b), the reference to
``proffered contentions'' in paragraph (h)(1) (proposed paragraph
(i)(1)) would no longer be necessary and would be removed. The
reference in current paragraph (h)(1) to ``paragraphs (a) through (g)''
would be changed to ``paragraphs (a) through (h)'' due to the addition
of proposed new paragraph (h).
f. Section 2.309(i) moved to new 2.309(j)--Decision on request/
petition.
The current Sec. 2.309(i) would be redesignated as Sec. 2.309(j).
The redesignated Sec. 2.309(j) would contain a new citation reference
made necessary by the new Sec. 2.309(h). Also, proposed Sec. 2.309(j)
would be revised to provide that if the presiding officer cannot issue
a decision on each request for hearing or petition to intervene within
45 days of the conclusion of the pre-hearing conference, the presiding
officer shall issue a notice advising the Commission and the parties as
to when the decision will issue. If no pre-hearing conference is
conducted, the 45-day period begins after the filing of answers and
replies under Sec. 2.309(i).
3. Section 2.311--Interlocutory review of rulings on requests for
hearings/petitions to intervene, selection of hearing procedures, and
requests by potential parties for access to sensitive unclassified non-
safeguards information and safeguards information.
Section 2.311(b) allows parties to appeal orders of the presiding
officer to the Commission concerning a request for hearing, petition to
intervene, or a request to access SUNSI or SGI within ten days after
the service of the order. Any party who opposes the appeal may file a
brief in opposition within ten days after service of the appeal.
Experience has demonstrated that the filing time provided under this
section is unnecessarily short, and sometimes results in superficial
appellate briefs. Most adjudicatory bodies allow substantially more
time for litigants to frame appellate arguments and to perform the
necessary research and analysis. Well-considered briefs enable the
appellate body, here the Commission, to make faster and better-reasoned
decisions. The NRC is therefore proposing to extend the time to file an
appeal and a brief in opposition to an appeal from ten to 25 days. The
NRC does not expect the proposed change in appeal deadlines to result
in any delays in licensing. For one thing, higher-quality briefs should
expedite appellate decision-making. Moreover, most of the appellate
litigation at the NRC is preliminary to any final licensing decisions;
it takes place before the NRC staff finishes its safety and
environmental reviews and generally does not affect the timing of those
reviews.
4. Section 2.314--Appearance and practice before the Commission in
adjudicatory proceedings.
Paragraph 2.314(c)(3) allows anyone disciplined under Sec.
2.314(c) to file an appeal with the Commission within ten days after
issuance of the order. Experience since the 2004 revisions of part 2
has demonstrated that ten days frequently is not adequate for parties
to prepare quality appeals. The NRC is therefore proposing to extend
the time to file an appeal of an order disciplining
[[Page 10785]]
a party from ten to 25 days. The NRC believes that extending the time
for appeals will result in higher-quality appeals.
5. Section 2.315--Participation by a person not a party.
Current Sec. 2.315(c) allows interested State, local governmental
bodies, and Federally-recognized Indian Tribes that have not been
admitted as parties under Sec. 2.309 a reasonable opportunity to
participate in hearings. The NRC is proposing to amend Sec. 2.315(c)
to clarify that States, local governmental bodies, or Federally-
recognized Indian Tribes that are allowed to participate in hearings
take the proceeding as they find it, consistent with longstanding NRC
case law. See, e.g., Pacific Gas and Electric Co. (Diablo Canyon
Nuclear Power Plant, Units 1 and 2), ALAB-600, 12 NRC 3, 8 (1980); Long
Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-
13, 17 NRC 469, 471-72 (1983), citing 10 CFR 2.714(c) (current
2.315(c)); Cincinnati Gas and Electric Co. (Wm. H. Zimmer Nuclear
Station), LBP-80-6, 11 NRC 148, 151 (1980).
6. Section 2.319--Power of the presiding officer.
As part of the 2004 revisions to part 2, the NRC eliminated
``redundant or duplicate provisions in Subpart J that would be covered
by the generally applicable provisions in Subpart C'' (69 FR 2212;
January 14, 2004). Section 2.319(l) would be updated to clarify the
scope of the power of the presiding officer to refer rulings or certify
questions to the Commission, consistent with the change to Sec. 2.323,
discussed in the next section.
7. Section 2.323--Motions.
The NRC proposes to amend Sec. 2.323(f) to clarify the criteria
for referrals in this paragraph, and to make the referral criteria
consistent with the Commission's standards for consideration of such
referrals. The criterion on ``prompt decision * * * necessary to
prevent detriment to the public interest or unusual delay or expense''
would be removed to make clear that this criterion concerns the prompt
decision of the Commission. The second criterion on ``the decision or
ruling involves a novel issue that merits Commission review'' would be
revised to make clear that: (1) This criterion concerns the presiding
officer's decision, and (2) the presiding officer's decision must raise
or create ``significant and novel'' issues that may be either ``legal
or policy'' in nature.
8. Section 2.335--Consideration of Commission rules and regulations
in adjudicatory proceedings.
Section 2.335 details the procedures through which a challenge to
the Commission's regulations may be raised as part of an adjudicatory
proceeding. The current text of the rule limits these challenges to ``a
party to an adjudicatory proceeding,'' which would seem to exclude
petitioners from challenging the Commission's regulations. The
Commission recognizes that challenges to the Commission's regulations
are frequently contained in petitions to intervene and requests for
hearing. Further, the Commission recognizes that petitioners may have a
legitimate interest in raising such challenges before they are granted
party status and that Atomic Safety and Licensing Boards have allowed
petitioners to raise these concerns before being admitted as parties.
See, e.g., Carolina Power and Light Co. (Shearon Harris Nuclear Power
Plant, Unit 1), LBP-07-11, 66 NRC 41, 57-58 (2007).
Also, a contention that challenges any Commission rule is
outside the scope of the proceeding because, absent a waiver, `no
rule or regulation of the Commission * * * is subject to attack * *
* in any adjudicatory proceeding.' Similarly, any contention that
amounts to an attack on applicable statutory requirements must be
rejected by a licensing board as outside the scope of the
proceeding. A petitioner may, however, within the adjudicatory
context submit a request for waiver of a rule under 10 CFR 2.335,
and outside the adjudicatory context file a petition for rulemaking
under 10 CFR 2.802 or a request that the NRC Staff take enforcement
action under 10 CFR 2.206. Id. (citations omitted).
The NRC is therefore proposing to amend this section to clarify
that, in accordance with NRC practice, ``participants to an
adjudicatory proceeding,'' not just parties, may seek a waiver or an
exception for a particular proceeding.
9. Section 2.336--General Discovery.
Section 2.336(d) currently requires parties to update their
mandatory disclosures every 14 days. Experience with adjudications
since early 2004 has demonstrated that the current disclosure
provisions are much more burdensome for litigants than was initially
anticipated. Part of the burden is the frequency of required updates to
the mandatory disclosures. The NRC is therefore proposing to replace
the requirement to disclose information or documents within 14 days of
discovery with a continuing duty to provide a disclosure update every
30 days. The Commission is also considering an alternative timeline to
the proposed rule for disclosure updates. Like the proposed rule, this
approach would require disclosure updates every thirty days, but, as
specified hearing milestones approach, this would mirror the 14-day
disclosure requirements of the current version of Sec. 2.336(d). This
hearing-sensitive timeline would mitigate the burdens of the current
rule, while preserving the utility of more frequent disclosure updates
as hearing milestones approach.
Each update under the proposed versions of Sec. 2.336(d) would
include documents subject to disclosure under this section that have
not been disclosed in a prior update and that are developed, obtained,
or discovered during the period that runs from five business days
before the last disclosure update to five business days before the
filing of the update. It is anticipated that this change to Sec.
2.336(d) would reduce the burden and increase the robustness of updated
disclosures. The NRC also proposes to add a sentence to the end of
Sec. 2.336(d), stating that the duty of mandatory disclosure with
respect to new information or documents relevant to a contention ends
when the presiding officer issues a decision on that contention, or
when otherwise specified by the presiding officer or the Commission.
10. Section 2.340--Initial decision in certain contested
proceedings; immediate effectiveness of initial decisions; issuance of
authorizations, permits, and licenses.
Sections 2.340(a) and (b) currently imply that the presiding
officer must reach a decision prior to the issuance of a license or
license amendment. But this is not necessarily the case. For operating
licenses associated with production and utilization facilities, both
the Atomic Energy Act and the NRC's regulations allow for the issuance
of a license amendment upon a determination of ``no significant hazards
consideration.'' See, e.g., 42 U.S.C. 2239, 10 CFR 50.91. Further,
subparts L and N of 10 CFR part 2 allow the staff to act on an
application, including an application for an initial or renewed
operating license or operating license amendment, and in proceedings
for an initial license or license amendment not involving a production
and utilization facility, prior to the completion of any contested
hearing, assuming that all other relevant regulatory requirements are
met. 10 CFR 2.1202(a), 2.1210(c)(3), and 2.1403(a). The NRC is
proposing to revise Sec. 2.340 to clarify that production and
utilization facility applications--for an initial license, a renewed
license, or a license amendment where the NRC has made a determination
of no significant hazards consideration--could be acted upon prior to
the completion of a contested hearing. The NRC also would make
conforming amendments to paragraphs
[[Page 10786]]
(d) and (e) of this section to clarify that in proceedings involving a
manufacturing license under subpart C of 10 CFR part 52, and in
proceedings not involving production and utilization facilities, the
NRC staff--provided it is able to make all of the necessary findings
associated with the licensing action--may act on a license, permit, or
license amendment prior to the completion of a contested hearing.
Finally, this section would be amended to clarify that the
presiding officer could make findings of fact and conclusions of law on
any matter not put into controversy by the parties, but only to the
extent that the presiding officer determines that a serious safety,
environmental or common defense and security matter exists, and only to
the extent the Commission, upon a required referral by the presiding
officer, approves an examination of and decision on the referred
matters.
11. Section 2.341--Review of decisions and actions of a presiding
officer.
a. Section 2.341(b)--Petitions for review.
Section 2.341 contains requirements pertaining to the review of
decisions and actions of a presiding officer by the Commission. Current
Sec. 2.341(b)(1) allows parties to file a petition for review of a
full or partial initial decision by a presiding officer or any other
decision or action by a presiding officer with respect to which a
petition for review is authorized by this part. Under the current
regulations a petition for review must be filed with the Commission
within 15 days of service of the decision. Similarly, Sec. 2.341(b)(3)
allows other parties to file an answer supporting or opposing
Commission review within ten days after service of a petition for
review. And the petitioning party is allowed to file a reply brief
within five days of service of any answer. Experience has demonstrated
that the time the NRC's rules allow for petitions for review of an
order of a presiding officer (15 days) is unnecessarily short, and
sometimes results in superficial appellate briefs. Most adjudicatory
bodies allow substantially more time for litigants to frame appellate
arguments and to perform the necessary research and analysis. Well-
considered briefs enable the appellate body, here the Commission, to
make faster and better-reasoned decisions. The NRC is therefore
proposing to extend the time to file a petition for review and an
answer to the petition from ten to 25 days. The NRC also is proposing
to extend the time to file a reply to an answer from five to ten days.
The NRC does not expect the proposed change in appeal deadlines to
result in any unnecessary delays in licensing. For one thing, higher-
quality briefs should expedite appellate decisionmaking. Moreover, most
of the appellate litigation at the NRC is preliminary to any final
licensing decisions; it takes place before the NRC staff finishes its
safety and environmental reviews and generally does not affect the
timing of those reviews. Finally, even when a final presiding officer
decision approving a license comes before the Commission on a petition
for review, the license can be issued immediately, notwithstanding the
pendency of a petition for review. See 10 CFR 2.340(f), 2.341(e).
b. Section 2.341(c)--Petitions for review not acted upon deemed
denied.
As stated in the 2004 part 2 revisions, Sec. 2.341 was intended to
essentially restate the provisions of former Sec. 2.786 (See 69 FR
2225; January 14, 2004). But the provisions of former Sec. 2.786(c),
under which petitions for Commission review not acted upon were deemed
denied, were inadvertently omitted from Sec. 2.341. Accordingly, the
NRC proposes to add a new Sec. 2.341(c)(1); existing Sec. 2.341(c)(1)
would be redesignated as Sec. 2.341(c)(2), and existing Sec.
2.341(c)(2) would be redesignated as Sec. 2.341(c)(3). Proposed Sec.
2.341(c)(1) would adopt the deemed denied provisions of the former
Sec. 2.786(c) with the exception of the 30-day time limit, which would
be extended to allow 120 days for Commission review. As a practical
matter, the 30-day timeframe has necessitated extensions of time in
most proceedings, as the prescribed briefing period comprehends 30
days. A 120-day Commission review period would allow for sufficient
time to review the filings at the outset, without the unintended
consequence of the frequent need for extensions. The NRC therefore is
proposing to adopt the deemed denied provisions of former Sec. 2.786
with a 120-day time limit as a new Sec. 2.341(c)(1).
c. Section 2.341(a)--Time to act on a petition for review.
Section 2.341(a)(2) currently provides the Commission with 40 days
to act on a decision of a presiding officer or a petition for review.
The current 40-day timeframe has necessitated extensions of time in
most proceedings, as the prescribed briefing period comprehends 30
days, often leaving the Commission insufficient time for an effective
review of the filings. As discussed above with respect to the ``deemed
denied'' provision, a 120-day Commission review period provides for a
reasonable period to review the filings without the unintended
consequence of the frequent need for extensions. The NRC therefore is
proposing to extend the time for Commission review from 40 days to 120
days. As has always been the case, the Commission may act before that
time or extend that period as it deems necessary.
d. Section 2.341(f)--Standards for Atomic Safety Licensing Board
certifications and referrals.
The NRC proposes to revise paragraph (f) of this section to address
a perceived inconsistency in the standards for Atomic Safety Licensing
Board certifications and referrals to the Commission and Commission
review of these issues. Section 2.323(f) currently allows a presiding
officer to refer a ruling to the Commission if prompt decision is
necessary to prevent detriment to the public interest or unusual delay
or expense, or if the presiding officer determines that the decision or
ruling involves a novel issue that merits Commission review at the
earliest opportunity. Current Sec. 2.341(f) states that referred or
certified rulings ``will be reviewed'' by the Commission only if the
referral or certification ``raises significant and novel legal or
policy issues, and resolution of the issues would materially advance
the orderly disposition of the proceeding'' (emphasis added). This
language has been interpreted as allowing the Commission to accept
referrals or certifications only if both standards in Sec. 2.341(f)
are met, even though Sec. 2.323(f) allows a presiding officer to refer
or certify a question or ruling if either of the comparable criteria in
Sec. 2.323(f) is met. Tennessee Valley Authority (Bellefonte Nuclear
Power Plant, Units 3 and 4), CLI-09-3, 69 NRC 68, 72 (2009). The
proposed revision to Sec. 2.341(f) would provide the Commission with
maximum flexibility by allowing, but not requiring, the Commission to
review an issue if it raises significant legal or policy issues, or if
resolution of the issue would materially advance the orderly
disposition of the proceeding, or if both standards are met.
12. Section 2.346--Authority of the Secretary.
Currently, Sec. 2.346(j) authorizes the Secretary to ``[t]ake
action on minor procedural matters.'' Since 2004, experience with the
subpart C hearing procedures has shown that greater efficiencies could
be achieved if the Secretary is given explicit authority to take action
on more than minor procedural matters. The NRC is therefore proposing
to authorize the Secretary to ``take action on procedural or other
minor matters.'' This change would allow the Secretary to take action
on a variety of non-substantive
[[Page 10787]]
procedural matters, such as motions raising matters that do not
explicitly fit within the Secretary's existing authority (e.g., a
motion to suspend a hearing notice or the unopposed withdrawal of
construction and operating license applications). Time is frequently of
the essence on some minor matters; requiring Commission orders and
affirmation sessions can sometimes result in undesirable delay in
issuing needed procedural directives because of the need to schedule
affirmation sessions. Accordingly, the NRC is proposing to amend Sec.
2.346(j) to give the Secretary the authority to ``take action on
procedural or other minor matters.'' The NRC is also proposing removing
the reference to Sec. 2.311 in paragraph (e). Requests for review
under Sec. 2.311 are termed ``appeals'' rather than ``petitions for
review.'' Moreover, there are no deadlines for Commission action on
appeals under Sec. 2.311.
13. Section 2.347--Ex parte communications.
Section 2.347 prohibits what are known as ex parte communications
between persons outside the NRC and NRC adjudicatory personnel on
matters relevant to the merits of an ongoing hearing; this section
currently applies to Sec. 2.204 demands for information. Unlike the
NRC actions subject to Sec. Sec. 2.104(a), 2.105(e)(2), 2.202(c),
2.205(e) and 2.312 (which would continue to be referenced in Sec.
2.347(e)(1)(i) and (ii)), hearing rights do not attach to a demand for
information because it is not an order; it is a pre-enforcement
document requesting information. 56 FR 40663, 40670, 40682; August 15,
1991. The NRC is therefore proposing to amend the ex parte
communication provisions in Sec. 2.347(e)(1)(i) and (ii) by deleting
the two references to Sec. 2.204. Formerly, Sec. 2.204 pertained to
orders for modification of licenses and orders to show cause, and these
orders did involve the right to a hearing. (50 FR 38113; September 20,
1985). Thus, when Sec. 2.780--the precursor to Sec. 2.347--was
established in 1988, the references to Sec. 2.204 were proper. But in
1991 the references became erroneous when the provisions for orders for
modification of licenses were deleted and replaced by the Sec. 2.204
provisions regarding demands for information. Accordingly, the NRC is
proposing conforming changes to Sec. 2.347(e)(1)(i) and (ii).
14. Section 2.348--Separation of functions.
The separation of functions provisions in Sec. 2.348 prohibit
certain communications between specified sets of NRC personnel on
matters relevant to the merits of an ongoing adjudicatory hearing.
Similar to the Sec. 2.347 proposal discussed above, the NRC is
proposing to correct the separation of functions provisions in Sec.
2.348(d)(1)(i) and (ii) by deleting the two references to Sec. 2.204.
As explained above, unlike the other specified NRC actions, hearing
rights do not attach to a demand for information. When Sec. 2.781--the
precursor to Sec. 2.348--was established in 1988, the references to
Sec. 2.204 were proper. But the references became erroneous in 1991
for the reasons stated above with respect to Sec. 2.347(e)(1)(i) and
(ii). Accordingly, the NRC is now proposing the conforming changes to
Sec. 2.348(d)(1)(i) and (ii).
C. Subpart G--Sections 2.700 through 2.713
1. Section 2.704--Discovery--required disclosures.
Sections 2.704(a) through (c) set forth the required disclosures
that parties other than the NRC staff must make in formal NRC
adjudications. To conform with the timing provisions of Sec. 2.336(d),
a change in Sec. 2.704(a)(3) is being proposed. Presently, Sec.
2.704(a)(3) requires that the initial disclosures be made within 45
days after a prehearing conference order following the initial
prehearing conference specified in Sec. 2.329. And Sec. 2.704(e)
requires a party that has made a disclosure under Sec. 2.704 to
supplement its disclosure if the party learns that in some material
respect the information disclosed was incomplete or incorrect (provided
the additional or new information was not made available to other
parties during the discovery process or in writing). In addition, with
respect to the testimony of an expert from whom a report is required
under Sec. 2.704(b), the duty to supplement under Sec. 2.704(e)
extends to both the information contained in the report and provided
through a deposition of the expert. The proposed Sec. 2.704(a)(3)
would require that unless otherwise stipulated or directed by order of
the presiding officer, a party's initial disclosures must be made
within 30 days of the order granting a hearing and that parties must
provide disclosure updates every 30 days. Each update would include
documents subject to disclosure under this section that have not been
disclosed in a prior update, and that are developed, obtained, or
discovered during the period that runs from the last disclosure update
to 5 business days before the filing of the update.
2. Section 2.705--Discovery--additional methods.
Section 2.705(b)(2) allows the presiding officer to ``alter the
limits in these rules on the number of depositions and
interrogatories.'' But the rules do not limit the number of depositions
or interrogatories. The NRC is therefore proposing to amend this
section to allow the presiding officer to set reasonable limits on the
number of interrogatories and depositions. This proposed change would
remove the confusion in this section and improve the efficiency of NRC
adjudicatory proceedings.
3. Sections 2.709--Discovery against NRC staff and 2.336--General
Discovery.
a. Sections 2.709(a)(6)--Required initial disclosures in
enforcement proceedings and 2.336--General Discovery.
The NRC is proposing to amend the NRC staff's mandatory disclosure
obligations for enforcement proceedings conducted under subpart G of 10
CFR part 2. The current regulation that applies to these proceedings,
Sec. 2.336, requires the disclosure of documents that are outside of
the scope of the enforcement proceeding, which results in the inclusion
of many unrelated documents in the mandatory disclosures. Therefore,
the NRC is proposing to amend Sec. 2.336(b) to remove subpart G
enforcement proceedings from the general discovery requirements; a
corresponding amendment would be made to Sec. 2.709 to specify the
staff's disclosure obligations in a subpart G enforcement proceeding.
This amended section would limit the scope of the staff's disclosures
to documents relevant to disputed issues alleged with particularity in
the pleadings. Not only would these amended disclosure requirements
benefit the NRC staff (by reducing the resources necessary to review,
prepare, and provide the required documents), but they would also aid
the other parties to the proceeding (by reducing the number of
documents they need to review to only documents that are relevant to
the issues in the proceeding).
Further, this disclosure requirement would parallel the initial
document disclosure requirement in Sec. 2.704(a)(2) for parties other
than the NRC staff. Although parties other than the NRC staff are also
required by Sec. 2.704(a)(1) to identify individuals likely to have
discoverable information relevant to disputed issues, the NRC considers
a similar disclosure requirement for the NRC staff to be unnecessary.
The discoverable portions of any pertinent Office of Investigations
report or related inspection report should identify many of the
individuals likely to have discoverable information relevant to
disputed issues.
[[Page 10788]]
Proposed Sec. 2.709(a)(6)(i) would also require that if a claim of
privilege or protected status is made by the NRC staff for any
documents, a list of these documents must be provided with sufficient
information for assessing the claim of privilege or protected status.
Finally, proposed Sec. 2.709(a)(6)(ii) would require the NRC staff to
provide disclosure updates every 30 days. Each update would include
documents subject to disclosure under this section that have not been
disclosed in a prior update and that are developed, obtained, or
discovered during the period that runs from 5 business days before the
last disclosure update to 5 business days before the filing of the
update, as would be required of other parties by proposed Sec.
2.704(a)(3).
b. Section 2.709(a)(7)--Form and type of NRC staff disclosures.
Proposed Sec. 2.709(a)(7) would specify the manner in which the
NRC staff may disclose information in subpart G proceedings. For
publicly available documents, data compilations, or other tangible
things, the NRC staff's duty to disclose such information to the other
parties and the presiding officer would be met by identifying the
location, the title, and a page reference to the subject information.
If the publicly available documents, data compilations, or other
tangible things can be accessed at either the NRC Web site, http://www.nrc.gov, or at the NRC Public Document Room, the staff would
provide the parties and the presiding officer with any citations
necessary to access this information. This addition parallels Sec.
2.704(a)(2) for disclosures by parties other than the NRC Staff.
D. Subpart L--Sections 2.1200 Through 2.1213
1. Subpart L--Title.
Subpart L of 10 CFR part 2 contains the adjudicatory procedures
that the NRC uses to conduct most of its licensing proceedings. The
procedures in subpart L were substantially revised in 2004 (69 FR 2182;
January 14, 2004), and are intended to be used with the generally
applicable provisions in subpart C of 10 CFR part 2. Under the
provisions of 10 CFR part 2 as revised in 2004, a hearing conducted
under subpart L meets the APA requirements for an ``on the record'' or
``formal'' hearing. Citizens Awareness Network, Inc. v. NRC, 391 F.3d
338, 351 (2004). This is true despite the fact that the NRC also
provides more formal adjudicatory procedures under subpart G of part 2.
However, the title of subpart L was not revised in 2004 to reflect the
changed (i.e., less formal) character of its procedures. To eliminate
any confusion caused by the current title of subpart L, the NRC
proposes to revise the title of subpart L to ``Simplified Hearing
Procedures for NRC Adjudications.'' The revised title would reflect
that these proceedings are less formal than the formal part 2 subpart G
hearings, but are still formal ``on the record'' hearings under the
APA, and not ``informal'' hearings as might be inferred from the
current title.
2. Section 2.1202--Authority and role of NRC staff.
Section 2.1202 pertains to the authority and role of the NRC staff
in less formal hearings. The introductory text of Sec. 2.1202(a) could
be erroneously interpreted as suggesting that the staff is required to
advise the presiding officer on the merits of contested matters. The
NRC proposes to revise Sec. 2.1202(a) to require that in subpart L
proceedings the staff's notice to parties regarding relevant staff
licensing actions must include an explanation of why both the public
health and safety is protected and the action is in accord with the
common defense and security, despite the ``pendency of the contested
matter before the presiding officer.''
A conforming change to the introductory text of Sec. 2.1403(a)
also is being proposed to require the NRC staff to provide this
explanation when the same situation arises in subpart N proceedings.
3. Sections 2.1205 and 2.710--Summary disposition; Motions for
summary disposition; Authority of the presiding officer to dispose of
certain issues on the pleadings.
The summary disposition motion requirements in Sec. 2.1205 do not
require the inclusion of a statement of material facts. Before the 2004
amendments to 10 CFR part 2, the NRC's requirements governing motions
for summary disposition required these motions to be accompanied by a
``separate, short and concise statement of material facts as to which
the moving party contends that there is no genuine issue to be heard.''
When the summary disposition motion requirements were included in the
hearing procedures in 10 CFR part 2, subpart L, the requirement for a
statement of material facts was inadvertently omitted from Sec.
2.1205. Proposed Sec. 2.1205 would restore the requirement for a
statement of material facts for which the moving party contends that
there is no genuine issue. This section would not include the
requirement for a ``separate'' statement of material facts in dispute,
as the rule already requires that the statement be ``attached'' to the
motion. The NRC is proposing a conforming change to Sec. 2.710 to
remove the word, ``separate,'' which would ensure that Sec. Sec. 2.710
and 2.1205 are identical in this regard.
4. Section 2.1209--Findings of fact and conclusions of law.
Section 2.712(c) specifies the format for proposed findings of fact
and conclusions of law in subpart G proceedings, but a similar format
provision does not exist in subpart L. The NRC, therefore, is proposing
to amend Sec. 2.1209 by adding the format requirements now contained
in Sec. 2.712(c). These format requirements would aid presiding
officers in subpart L proceedings by ensuring that proposed findings of
fact and conclusions of law clearly and precisely communicate the
parties' positions on the material issues in the proceeding, with exact
citations to the factual record.
5. Section 2.1213--No significant hazards consideration
determinations not subject to stay provisions.
The proposed amendment to Sec. 2.1213 would add a new paragraph
(f). The proposed paragraph would exclude from the stay provisions
matters limited to whether a no significant hazards consideration
determination for a power reactor license amendment was proper. No
significant hazards consideration determinations may be made in license
amendment proceedings for production or utilization facilities that are
subject to the 10 CFR part 50 requirements; challenges to these
determinations are not allowed in accordance with 10 CFR 50.58(b)(6).
Excluding no significant hazards consideration determinations from the
stay provisions also is consistent with Federal case law holding that
these findings are final agency actions, which are not appealable to
the Commission. Center for Nuclear Responsibility, Inc. v. U.S. Nuclear
Regulatory Comm'n, 586 F.Supp. 579, 580-81 (D.DC 1984).
E. Subpart M--Sections 2.1300 Through 2.1331
The following changes are being proposed to subpart M of 10 CFR
part 2, which sets forth the procedures that are applicable to hearings
on license transfer applications.
1. Sections 2.1300 and 2.1304--Provisions governing hearing
procedures for subpart M hearings.
Section 2.1300 states that the provisions of subpart M, together
with subpart C, govern all adjudicatory proceedings on license
transfers, but current Sec. 2.1304 states that the procedures in
subpart M ``will constitute the exclusive basis for hearings on license
transfer applications.'' Section 2.1304, part of the original subpart
M, was effectively replaced by Sec. 2.1300 in
[[Page 10789]]
the 2004 part 2 revisions, and could have been removed as part of that
rulemaking. The NRC is now proposing to remove Sec. 2.1304 and amend
Sec. 2.1300 to clarify that, in subpart M hearings on license
transfers, both the generally applicable intervention provisions in
subpart C and the specific subpart M hearing procedures govern.
2. Section 2.1316--Authority and role of NRC staff.
Section 2.1316(c) provides the procedures for the NRC staff to
participate as a party in subpart M hearings. These procedures would be
updated to mirror the requirements of Sec. 2.1202(b)(2) and (3), which
set forth the NRC staff's authority and role in subpart L hearings.
Proposed Sec. 2.1316(c)(1) would require the NRC staff--within 15 days
of the issuance of an order granting requests for hearing or petitions
to intervene and admitting contentions--to notify the presiding officer
and the parties whether it desires to participate as a party in the
proceeding. If the staff decides to participate as a party, its notice
would identify the contentions on which it will participate as a party.
If the NRC staff later desires to be a party, the NRC staff would
notify the presiding officer and the parties, and identify the
contentions on which it wished to participate as a party, and would
make the disclosures required by Sec. 2.336(b)(3) through (5) unless
accompanied by an affidavit explaining why the disclosures cannot be
provided to the parties with the notice. Once the NRC staff chooses to
participate as a party in a subpart M license transfer proceeding, it
would have all the rights and responsibilities of a party with respect
to the admitted contention or matter in controversy on which the staff
chose to participate. As with Sec. 2.1202, ``the NRC staff must take
the proceeding in whatever posture the hearing may be at the time that
it chooses to participate as a party.'' (69 FR 2228; January 14, 2004).
F. Subpart N--Sections 2.1400 Through 2.1407
Section 2.1407--Appeal and Commission review of initial decision.
Current Sec. 2.1407(a)(1) allows parties to appeal orders of the
presiding officer to the Commission within 15 days after the service of
the order. Similarly, Sec. 2.1407(a)(3) allows parties that are
opposed to an appeal to file a brief in opposition within 15 days of
the filing of the appeal. Experience has demonstrated that the time the
NRC's rules allow for appeals from an order of a presiding officer is
unnecessarily short, and sometimes results in superficial appellate
briefs. Most adjudicatory bodies allow substantially more time for
litigants to frame appellate arguments and to perform the necessary
research and analysis. Well-considered briefs enable the appellate
body, here the Commission, to make faster and better-reasoned
decisions. The NRC is therefore proposing to extend the time to file an
appeal and a brief in opposition to an appeal from 15 to 25 days. The
NRC does not expect the proposed change in appeal deadlines to result
in any delays in licensing. For one thing, higher-quality briefs should
expedite appellate decision-making. Moreover, most of the appellate
litigation at the NRC is preliminary to any final licensing decisions;
it takes place before the NRC staff finishes its safety and
environmental reviews and generally does not affect the timing of those
reviews.
G. Other Changes
1. Section 2.4--Definitions.
The current definition of ``Participant'' applies to an
``individual or organization,'' and does not explicitly apply to
governmental entities that have petitioned to intervene in a
proceeding. The NRC proposes to correct this definition by adding a
parenthetical reference to ``individual or organization'' so that it
reads: ``individual or organization (including governmental
entities).''
The current definition of ``NRC personnel'' in Sec. 2.4 contains
outdated references to Sec. Sec. 2.336 and 2.1018. The proposed
revision of ``NRC personnel'' would update this definition by removing
references to Sec. Sec. 2.336 and 2.1018, neither of which references
the term ``NRC personnel.''
2. Section 2.101--Filing of application.
In 2005, Sec. 2.101 was amended to remove paragraph (e) and
redesignate (f) and (g) as paragraphs (e) and (f). (70 FR 61887;
October 27, 2005) The internal references to paragraph (g) were not
updated to reflect the new paragraph designations. References in this
section to Sec. 2.101(g) would be corrected to reference Sec.
2.101(f). There are no references to former Sec. 2.101(f) in this
section.
3. Section 2.105--Notice of proposed action.
Proposed Sec. 2.105 would make three changes to the current
regulation: (1) The introductory text of paragraph (a) would be revised
by inserting a reference to the NRC's Web site; (2) The introductory
text of paragraph (b) would be clarified by specifying that the
referenced notice pertains to one published in the Federal Register;
and, (3) The introductory text of paragraph (d) would be corrected to
reference the time period stated in Sec. 2.309(b).
4. Section 2.802--Petition for rulemaking.
The proposed Sec. 2.802(d), in accordance with the proposed
definition of ``Participant'' in Sec. 2.4 and the proposed amendment
to the procedures for challenging the NRC's regulations in Sec. 2.335,
would replace the word ``party'' with ``participant.''
5. Corrections of other outdated and incorrect references.
Section 51.102(c) contains an outdated reference to ``Subpart G of
Part 2.'' The reference would be corrected to refer generally to part
2. Also, the reference to the former Atomic Safety and Licensing Appeal
Board would be removed from Sec. 51.102.
Sections 51.4, 51.34, 51.109(f), and 51.125 contain outdated
references to the former Appeal Board, which would be removed from
these sections.
6. Section 54.27--Hearings.
Section 54.27 (pertaining to license renewal hearings for nuclear
power reactors) contains an outdated reference to a 30-day period to
request a hearing. As discussed in the 2004 part 2 revisions, except
for license transfer and HLW proceedings, the time in which to request
a hearing was extended to 60 days from the date a notice of opportunity
for hearing is published (either in the Federal Register or on the
NRC's Web site). (January 4, 2004; 69 FR 2200). The proposed Sec.
54.27 would be corrected to reflect the proper 60-day period to request
a hearing, and a reference to 10 CFR 2.309 would be added. The proposed
Sec. 54.27 would retain the provision that in the absence of any
hearing requests, a renewed operating license may be issued without a
hearing upon 30-day notice and publication in the Federal Register.
7. Part 2--Rules of Practice for Domestic Licensing Proceedings and
Issuance of Orders.
Throughout 10 CFR part 2, the terms ``Presiding Officer'' and
``presiding officer'' are used interchangeably, but with different
capitalization, unlike 10 CFR part 51, which uses the term ``presiding
officer'' uniformly without capitalization. This proposed rule would
change all references to the term ``Presiding Officer'' to ``presiding
officer'' to bring 10 CFR part 2 into conformance with 10 CFR part 51.
VI. Additional Issues for Public Comment
A. Scope of Mandatory Disclosures
Section 2.336 contains the general procedures governing disclosure
of information before a hearing in
[[Page 10790]]
contested NRC adjudicatory proceedings. The NRC is soliciting public
comment on whether it should revise the Sec. 2.336 mandatory
disclosures to focus the staff's disclosure obligations under Sec.
2.336(b)(3) on documents related to the parties' admitted contentions.
Section 2.336(b) contains the NRC staff's mandatory disclosure
obligations. Specifically, under Sec. 2.336(b)(3) the NRC staff must
disclose all documents supporting the staff's review of the application
or proposed action that is the subject of the proceeding without regard
to whether the documents are relevant to the admitted contentions.
The 2004 revision to part 2 imposed mandatory disclosure provisions
on all parties that were intended to reduce the overall discovery
burden in NRC adjudicatory proceedings. The NRC is concerned that this
has not been the case and that the overall discovery burden has not
been reduced. The NRC believes that the primary source of the burden
stems from the disclosure of hundreds or thousands of documents by the
NRC staff that are unrelated to any admitted contention; disclosure of
voluminous material by the staff also burdens other parties to the
proceeding with searching through hundreds or thousands of unrelated
documents to find the material that is relevant to the issues in
dispute (other parties' disclosures are already limited to documents
relevant to the admitted contentions; the staff's disclosures are not).
All parties also are required to produce privilege logs (a list of
discoverable documents that are not being disclosed because the party
asserts a privilege to protect the documents). Due to the large number
of documents that are captured by the current regulations, the NRC
staff must prepare a log of privileged documents, most of which are
entirely unrelated to the contentions. Limiting the disclosure
obligations to the issues in dispute would reduce the number of
documents produced by the NRC staff, and also would provide the other
parties to the proceeding with a list of relevant documents that were
withheld, which would make it easier for the parties to identify any
withheld documents that they may seek to obtain. This change would also
align the scope of the NRC staff's disclosure obligations with those of
the other parties to the proceeding. At the same time, the parties'
opportunity to obtain publicly available documents would not be
affected, as these proposed changes would not affect the full scope of
documents that will be available to parties and other members of the
public through ADAMS.
The NRC is also seeking comments on whether it should add a new
requirement to the end of Sec. 2.336(d) to clarify that the duty of
mandatory disclosure with respect to new information or documents
relevant to a contention ends when the presiding officer issues a
decision on that contention or when specified by the presiding officer
or the Commission.
1. Specific Questions for Public Comment
(a) Would applying NRC staff disclosures under Sec. 2.336(b)(3) to
documents related only to the admitted contentions aid parties other
than the NRC staff by reducing the scope of documents they receive and
review through the mandatory disclosures?
(b) Is the broad disclosure obligation imposed on the NRC staff by
current Section 2.336(b) warranted in light of (a) the other parties'
more limited disclosure obligations and (b) the parties' ability to
find these same documents in an ADAMS search?
(c) Would a shorter, more relevant privilege log aid parties to the
proceeding?
(d) Would potential parties prefer to maintain the status quo?
(e) Would limiting the mandatory disclosures of documents as
described in Federal Rule of Civil Procedure 26(a)(1)(A)(ii) be the
preferred option?
2. Draft Rule Text That Would Limit the Scope of NRC Staff's Mandatory
Disclosures
Except for proceedings conducted under subpart J of this
part (or as otherwise ordered by the Commission, the presiding officer,
or the Atomic Safety and Licensing Board assigned to the proceeding),
the NRC staff must, within 30 days of the issuance of the order
granting a request for hearing or petition to intervene and without
further order or request from any party, disclose and make available
the following documents:
[cir] The application and applicant or licensee requests associated
with the application or proposed action that is the subject of the
proceeding;
[cir] NRC correspondence (including e-mail) with the applicant or
licensee associated with the application or proposed action that is the
subject of the proceeding;
[cir] All documents (including documents that provide support for,
or opposition to, the application or proposed action) supporting the
NRC staff's review of the application or proposed action that are
relevant to the contentions that have been admitted into the
proceeding;
[cir] Any NRC staff documents (except those documents for which
there is a claim of privilege or protected status) representing the NRC
staff's determination on the application or proposal that is the
subject of the proceeding. Documents representing the NRC staff's
determination include published NRC reports and published draft or
final environmental impact statements or environmental assessments; and
[cir] A list of all otherwise-discoverable documents for which a
claim of privilege or protected status is being made, together with
sufficient information for assessing the claim of privilege or
protected status of the documents.
B. Alternative Approaches on Interlocutory Appeals
The NRC is seeking public comments as to whether to amend 10 CFR
part 2 regarding interlocutory review of rulings by a presiding officer
granting or denying a request for hearing or intervention petition,
including late-filed requests or petitions. Currently, Sec. 2.311(c)
effectively allows the requestor or petitioner to appeal an order
wholly denying an intervention petition or request for hearing.
Therefore, if the presiding officer grants the intervention petition
and denies the admissibility of one or more proposed contentions, the
petitioner may not appeal the denial of any proposed contentions until
the presiding officer issues a final decision at the end of the
proceeding. Conversely, any party other than the petitioner may
immediately appeal the order on the grounds that the requestor or
petitioner lacks standing or that all of their proposed contentions
were inadmissible. Although this basic scheme for interlocutory review
of intervention petitions and requests for hearing has been in place
since 1972 (see 37 FR 28710; December 29, 1972), there have been some
suggestions that a change to the current practice might be warranted to
either provide earlier appellate review of contention admissibility or,
alternatively, to discourage frivolous appeals. The NRC is considering
two options for a potential amendment. The NRC requests comment on the
options and on the possible rule language that would implement each
option, including comments on the resource implications of both options
for all parties and for the Commission.
[[Page 10791]]
Option 1
The first option would amend Sec. 2.311(c) and (d) to allow any
party to appeal an order granting a request for hearing or petition to
intervene in whole or in part within 25 days of the presiding officer's
issuance of the order. This amendment would effectively allow all
parties to immediately appeal rulings on the admissibility of any
particular contention (including late-filed contentions).
The potential advantage of amending Sec. 2.311 is that it allows
early resolution of contention admissibility issues. Specifically, it
eliminates the possibility that, after a Board has issued its final
order in the proceeding, the Commission on appeal will remand the
proceeding to the Board for consideration of a contention that the
Commission has determined should have been admitted and thereby prolong
the proceeding. Consistent with the general principles applied by
courts and agencies that favor limited interlocutory review, the
disadvantages of departing from the current practice under Sec. 2.311
include the potential increase in the Commission's appellate workload
at the early stage of a proceeding and the attention given to matters
that it may prove unnecessary to address at all if a party decides not
to pursue the matter at the conclusion of the proceeding or if further
developments, such as settlement, obviate the need to address the
admissibility question. This amendment would not alter a party's
ability to appeal orders on the question of standing.
Option 2
The second option would delete Sec. 2.311(d)(1) in order to remove
the right of parties other than the petitioner to appeal orders
granting an intervention petition. This would leave all parties with
the same appellate rights, including the right to seek interlocutory
review under Sec. 2.341(f)(2). The potential advantage of this option
is that it would reduce the Commission's appellate workload by removing
any incentive for parties other than the petitioner to oppose all
proffered contentions solely to preserve their right to appeal. The
main disadvantage would be removing the means by which an early
determination can be made as to the proper admission of some
contentions.
VII. Section-by-Section Analysis
A. Introductory Provisions--Sections 2.1 Through 2.8
Section 2.4--Definitions.
This section would modify the definition of Participant in Sec.
2.4, which currently applies to individuals or organizations that
petition to intervene or request a hearing, but are not yet parties.
The new definition would clarify that any individual or organization--
including States, local governments, and Federally-recognized Indian
Tribes--that petitions to intervene or requests a hearing shall be
considered a participant. Further, Federally-recognized Indian Tribes
do not have to be ``affected'' Federally-recognized Indian Tribes to
participate in NRC licensing actions. ``Affected'' is reserved for
Federally-recognized Indian Tribes that seek to participate in the
high-level waste proceeding; it does not apply to the NRC's other
licensing actions. The current definition also indicates that States,
local governmental bodies, or affected Federally-recognized Indian
Tribes that seek to participate under Sec. 2.315(c) shall be
considered participants. This section does not grant these governmental
bodies Sec. 2.315(c) participant status; this status is only obtained
when the interested governmental body is afforded the opportunity to
participate in the proceeding by the presiding officer. Governmental
bodies that have requested Sec. 2.315(c) participant status, but have
not yet been granted or denied such status by the presiding officer,
are only entitled to participate in a proceeding as a Sec. 2.4
participant. This section also would modify the definition of ``NRC
personnel,'' which contains outdated references to Sec. Sec. 2.336 and
2.1018; the proposed revision would remove these references.''
B. Subpart A--Sections 2.100 Through 2.111
1. Section 2.101--Filing of application.
This section would be amended to correct references to Sec.
2.101(g), which should reference Sec. 2.101(f). These changes would
not alter the meaning or intent of this regulation.
2. Section 2.105--Notice of proposed action.
This section would be updated to include a reference to the NRC's
Web site. Paragraph (b) of this section would be updated to clarify
that the referenced ``notice'' is one that is published in the Federal
Register, and paragraph (d) would be amended to include a reference to
the time period included in Sec. 2.309(b).
C. Subpart C--Sections 2.300 Through 2.390
1. Section 2.305--Service of documents; methods; proof.
Section 2.305, which currently requires any paper served in an NRC
proceeding to include a signed certificate of service, would be amended
to clarify that a signed certificate of service must be filed with any
document filed with the NRC. Under Sec. 2.304(d)(1) persons submitting
electronic documents to the NRC through the E-Filing system do not need
to physically sign their documents; signature with a participant's
digital ID certificate satisfies the requirement that a document be
signed.
Section 2.305(g)(1), which does not currently provide an address
for service upon the NRC staff when a filing is not being made through
the E-Filing system and no attorney representing the NRC staff has
filed a notice of appearance, would be updated to provide participants
with an address to use in these circumstances.
2. Section 2.309--Hearing requests, petitions to intervene,
requirements for standing, and contentions.
a. Section 2.309(b)--Timing.
Section 2.309(b), which does not provide a time for answers to
Sec. 2.205(c) orders, would be amended to clarify that recipients of
Sec. 2.205(c) orders have the time specified in the order to file
their answers.
b. Section 2.309(c) and (f)--Subsequent Submission of Petition/
Request or New or Amended Contentions.
Section 2.309(c) would be updated to consolidate the nontimely
filing requirements and to clarify the intent of the regulations.
Amended Sec. 2.309(c) would incorporate the Sec. 2.309(f)(2)(i)
through (iii) factors into amended Sec. 2.309(c)(2)(i) through (iii)
as the factors to be considered in evaluating a filing after the
deadlines in Sec. 2.309(b). Thus, unlike the current requirement where
both the Sec. 2.309(c) and Sec. 2.309(f)(2) factors must be
individually addressed, the proposed amendment incorporates the Sec.
2.309(f)(2) factors into amended Sec. 2.309(c)(2)(i) through (iii).
Meeting these three factors would provide sufficient justification for
the filing after the deadlines in Sec. 2.309(b). Section
2.309(c)(2)(i) would require the requestor or petitioner to demonstrate
that the information upon which the new or amended contention is based
was not previously available. The phrase ``not previously available''
in this paragraph means that a requestor or petitioner cannot base a
contention on a document or a report that does not yet exist. For
example, if at the time of requestor or petitioner's filing, an agency
or organization was working on a report scheduled for publication in
six months, the requestor or petitioner could not anticipate this
publication and rely on the report in the submission
[[Page 10792]]
of contentions. Also, Sec. 2.309(c)(2)(ii) would require the
information that supports the filing after the deadlines in Sec.
2.309(b) to be materially different from information previously
available. And Sec. 2.309(c)(2)(iii) would require a requestor or
petitioner to submit this filing in a timely fashion based on the
availability of the subsequent information. But this interpretation
does not mean that a petitioner or requestor could not submit a filing
after the publication of a report, provided that the report contains
information that meets both the filing criteria in Sec. 2.309(c) and
the admissibility criteria in Sec. 2.309(f).
Section 2.309(c)(3) would clarify that any new or amended
intervention petition must include new or amended contentions if the
petitioner seeks admission as a party, and requires a petitioner to
meet the standing and admissibility requirements in Sec. Sec. 2.309(d)
and (f); a petitioner that has already satisfied the Sec. 2.309(d)
standing requirements would not have to do so again.
Section 2.309(c)(4) would require any new or amended contentions
filed by a party to meet the admissibility requirements in Sec.
2.309(f), and would clarify that a party or a participant who has
already demonstrated standing does not need to satisfy the standing
requirements in Sec. 2.309(d) again.
Section 2.309(c)(5) would clarify that new or amended contentions
arising under the National Environmental Policy Act also must meet the
filing requirements of Sec. 2.309(c)(1) through (c)(2).
c. Section 2.309(h)--Requirements applicable to States, local
governmental bodies, and Federally-recognized Indian Tribes seeking
party status.
Paragraphs (d)(2)(i) and (ii) apply only to ``affected'' Federally-
recognized Indian Tribes, which is only proper in the context of a
high-level radioactive waste disposal proceeding. Proposed Sec.
2.309(h), which is the current Sec. 2.309(d)(2), would be revised to
clarify that, in the case of Sec. 2.309(h)(1) and (2), any Federally-
recognized Indian Tribe that wishes to participate in any potential
proceeding for a facility located within its boundaries does not need
to further establish its standing. Section 2.309(h)(3), which is the
current Sec. 2.309(d)(2)(iii), would only apply to a high-level waste
disposal proceeding and would retain the references to affected
Federally-recognized Indian Tribes; the references in this section
would mirror the language used in the Sec. 2.1001 definition of Party.
3. Section 2.311--Interlocutory review of rulings on requests for
hearings/petitions to intervene, selection of hearing procedures, and
requests by potential parties for access to sensitive unclassified non-
safeguards information and safeguards information.
Proposed Sec. 2.311(b) would extend the time to file an appeal and
a brief in opposition to an appeal from ten to 25 days.
4. Section 2.314--Appearance and practice before the Commission in
adjudicatory proceedings.
Proposed Sec. 2.314(c)(3) would extend the time to file an appeal
to an order disciplining a party from ten to 25 days.
5. Section 2.315--Participation by a person not a party.
Proposed Sec. 2.315(c) would clarify that interested States, local
government bodies, and Federally-recognized Tribes, who are not parties
admitted to a hearing under Sec. 2.309 and seek to participate in the
hearing, must take the proceeding as they find it. Consistent with NRC
case-law, Sec. 2.315(c) participants would not be able to raise issues
related to contentions or issues that were resolved prior to their
entry as Sec. 2.315(c) participants in the proceeding--if a State,
local governmental body, or Federally-recognized Indian Tribe chooses
to participate in a proceeding late in the process, their participation
is subject to any orders already issued and should not interfere with
the schedule established for the proceeding.
6. Section 2.319--Power of the presiding officer.
Proposed Sec. 2.319(r) would reincorporate former Sec. 2.1014(h)
without any changes to the original language or intent. This section
would require that an admitted contention that constitutes pure issues
of law, as determined by the presiding officer, must be decided on the
basis of briefs or oral argument.
7. Section 2.323--Motions.
Proposed Sec. 2.323(f) would allow the presiding officer to
independently, or in response to a petition from a party, certify
questions or refer rulings to the Commission if the issue satisfies one
of the two Sec. 2.323(f)(1) criteria. In each case, the presiding
officer would make the initial determination as to whether the issue or
petition raises significant and novel legal or policy issues, or if
prompt decision by the Commission is necessary to materially advance
the orderly disposition of the proceeding.
8. Section 2.335--Consideration of Commission rules and regulations
in adjudicatory proceedings.
Section 2.335 limits the requests for waivers or exceptions from
NRC regulations to parties to a proceeding. Proposed Sec. 2.335 would
clarify that participants to an adjudicatory proceeding, including
petitioners, may seek a waiver or exception to the NRC's regulations
for a particular proceeding. This change would adopt the NRC's practice
of allowing petitions to intervene and requests for hearing to contain
Sec. 2.335 requests for waivers or exceptions from the NRC's
regulations.
9. Section 2.336--General Discovery.
This section, which currently requires an update within 14 days of
obtaining or discovering disclosable material, would be amended to
require the filing of a mandatory disclosure update every 30 days.
These updates would include all disclosable documents and information
developed during the period that runs from five business days before
the last disclosure update to 5 business days before the filing of the
update. Parties not disclosing any documents or information are
expected to file an update informing the presiding officer and the
other parties that no documents or information are being disclosed. The
duty of mandatory disclosure with respect to new information or
documents relevant to a contention would end when the presiding officer
issues a decision on that contention, or as specified by the presiding
officer or the Commission.
10. Section 2.340--Initial decision in certain contested
proceedings; immediate effectiveness of initial decisions; issuance of
authorizations, permits, and licenses.
Proposed Sec. 2.340 would clarify that in some circumstances the
NRC may act on a license, a renewed license, or on a license amendment
prior to the completion of any contested hearing.
Paragraphs (a) and (b) concern construction and operating licenses,
renewed licenses, combined licenses, and amendments to these licenses.
These paragraphs would be amended to clarify that, in the case of a
license amendment involving a power reactor, the NRC may complete
action on the amendment request without waiting for the presiding
officer's initial decision once the NRC makes a determination that the
amendment involves no significant hazards consideration. In initial
power reactor licensing cases and in cases where the NRC has not made a
determination of no significant hazards consideration, these paragraphs
would be amended to clarify that the NRC may not act on the application
until the presiding officer issues an initial decision in the contested
proceeding.
Paragraph (c), which deals with initial decisions under 10 CFR
52.103(g), would be amended to clarify that the presiding officer may
make findings of
[[Page 10793]]
fact and conclusions of law on the matters put into controversy by the
parties, and any matter designated by the Commission to be decided by
the presiding officer. Further, the amended paragraph would clarify
that matters not put into controversy by the parties shall be referred
to the Commission for its consideration. The Commission could, in its
discretion, treat any of these referred matters as a request for action
under Sec. 2.206 and would process the matter in accordance with Sec.
52.103(f).
Paragraphs (d) and (e), which concern manufacturing licenses under
10 CFR part 52 and proceedings not involving production or utilization
facilities, would be amended to clarify that the NRC will issue, deny,
or condition any permit, license, or amendment in accordance with a
presiding officer's initial decision. These paragraphs also would be
amended to clarify that the NRC may issue a license amendment before a
presiding officer's initial decision becomes effective.
This proposed revision would clarify that in all cases the
presiding officer is limited to matters placed into controversy by the
parties, and serious matters not put into controversy by the parties
that concern safety, common defense and security, or the environment
and that are referred to, and consideration of which is approved by,
the Commission.
11. Section 2.341--Review of decisions and actions of a presiding
officer.
a. Extension of time to file a petition for review, answer, and
reply.
Proposed Sec. 2.341(b) would extend the time to file a petition
for review and an answer to a petition from 15 to 25 days, and the time
to file a reply to an answer from five to ten days.
b. Petitions for Commission review not acted upon deemed denied.
Section 2.341 would reincorporate the ``deemed denied'' provision
of former Sec. 2.786(c), with an additional 90 days for Commission
review before petitions for review are deemed denied. The additional 90
days would allow the Commission 120 days of review time before a
petition for review is deemed denied.
Similarly, the time for the Commission to act on a decision of a
presiding officer or a petition for review would be expanded to 120
days to bring this section into alignment with the new timeline in
proposed Sec. 2.341(c)(1).
c. Interlocutory review.
Section 2.341(f) would allow, but not require, the Commission to
review certifications or referrals that meet any of the standards in
this paragraph.
12. Section 2.346--Authority of the Secretary.
This proposed section would make explicit the Secretary's authority
under Sec. 2.346(j), which is currently limited to minor procedural
matters, to include non-minor procedural matters--such as the unopposed
withdrawal of construction and operating license applications--which
would avoid the need for formal Commission orders and affirmation
sessions to issue procedural directives. Also, the reference in
paragraph (e) to Sec. 2.311 has been removed because appeals under
Sec. 2.311 do not have, associated with them, deadlines for Commission
action.
13. Sections 2.347 and 2.348--Ex parte communications; Separation
of functions.
These sections currently reference Sec. 2.204 demands for
information, which are not orders and do not entail hearing rights.
Because demands for information are not adjudicatory matters, the
restrictions on ex parte communications and the separation of functions
limitations do not apply. The references to Sec. 2.204 would be
removed from both sections.
D. Subpart G--Sections 2.700 Through 2.713
1. Section 2.704--Discovery--required disclosures.
This section, which currently requires initial disclosures to be
made within 45 days after the issuance of a prehearing conference order
following the initial prehearing conference, would be amended to
require the filing of a mandatory disclosure update every 30 days.
These updates would include all disclosable documents and information
obtained up to 5 business days before the disclosure update. Any
documents or information obtained or developed during the period that
runs from the last disclosure update to 5 business days before the
filing of the update would be included in the next update. Parties not
disclosing any documents or information are expected to file an update
informing the presiding officer and the other parties that no documents
or information are being disclosed.
2. Section 2.705--Discovery--additional methods.
This section, which currently allows the presiding officer to
``alter the limits * * * on the number of depositions and
interrogatories,'' would be amended to remove the impression that these
rules impose a limit on the number of depositions and interrogatories--
they do not. Instead, the new rule would clarify that the presiding
officer ``may set limits on the number of depositions and
interrogatories.''
3. Section 2.709--Discovery against NRC staff.
a. Section 2.709(a)(6)--Initial disclosures.
This new paragraph would require the NRC staff to provide initial
disclosures within 30 days of the order granting a hearing and without
awaiting a discovery request. The NRC staff disclosures would include
all NRC staff documents relevant to disputed issues alleged with
particularity in the proceedings, including any Office of
Investigations Report and supporting Exhibits, and any Office of
Enforcement documents regarding the order. The staff would also be
required to file a mandatory disclosure update every 30 days. These
updates would include all disclosable documents and information
obtained or developed during the period that runs from the last
disclosure update to 5 business days before the filing of the update.
Any documents or information obtained or developed during the period
between the 5 business day cutoff and the update would be included in
the next update. If the staff does not disclose any documents or
information, it would be expected to file an update informing the
presiding officer and the other parties that no documents or
information are being disclosed. The staff also would be required to
provide, with initial disclosures and disclosure updates, a privilege
log listing the withheld documents that includes sufficient information
to assess the claim of privilege or protected status. These
requirements parallel the Sec. 2.704 requirements for parties other
than the NRC staff.
b. Section 2.709(a)(7)--Form and type of NRC staff disclosures.
Section 2.709(a)(7) is a new paragraph that would allow the staff
to satisfy its disclosure obligations for publicly available documents
by providing the title, date, and NRC ADAMS accession number for the
document. This change would mirror the procedures now used by parties
other than the NRC staff to disclose publicly available documents.
4. Section 2.710--Motions for summary disposition.
This section would be amended to conform to the proposed amendments
to Sec. 2.1205, which would require parties to attach a statement of
material facts to a motion for summary disposition. This proposed
change would have no effect on the current practice of including a
statement of material facts with a motion; it would clarify that the
statement needs to be attached to the motion and does not have to be
``separate.''
[[Page 10794]]
E. Subpart H--Sections 2.800 Through 2.819
1. Section 2.802--Petition for rulemaking.
This section currently allows petitioners for a rulemaking to
request the suspension of an adjudicatory proceeding to which they are
a party. This section would be amended to allow any petitioner for a
rulemaking that is a participant in a proceeding (as defined by Sec.
2.4) to request suspension of that proceeding.
Subpart L--Sections 2.1200 Through 2.1213
2. Section 2.1202--Authority and role of NRC staff.
This section currently requires the NRC staff to include its
position on the matters in controversy when it notifies the presiding
officer of its decision on a licensing action, which could be
incorrectly interpreted as requiring the staff to advise the presiding
officer on the merits of the contested matters. This amended section
would clarify the authority and role of the NRC staff in less formal
hearings; staff notices regarding licensing actions would have to
include an explanation of why both the public health and safety is
protected and the action is in accord with the common defense and
security, despite the ``pendency of the contested matter before the
presiding officer.''
3. Section 2.1209--Findings of fact and conclusions of law.
This section currently does not specify the formatting requirements
for findings of fact and conclusions of law. Amended Sec. 2.1209 would
incorporate the Sec. 2.712(c) formatting requirements for findings of
fact and conclusions of law to ensure that proposed findings of fact
and conclusions of law clearly and precisely communicate the parties'
positions on the material issues in the proceeding, with exact
citations to the factual record.
4. Section 2.1213--Application for a stay.
Section 2.1213 does not currently exclude matters limited to
whether a ``no significant hazards consideration'' determination for a
power reactor license amendment was proper from the stay provisions.
Section 50.58(b)(6) prohibits challenges to these determinations;
section 2.1213 would therefore be amended to exclude from the stay
provisions matters limited to whether a no significant hazards
consideration determination was proper.
F. Subpart M--Sections 2.1300 Through 2.1331
1. Section 2.1300--Scope of subpart M.
The NRC is proposing to remove Sec. 2.1304 and to amend Sec.
2.1300 to clarify that the generally applicable intervention provisions
in subpart C and the specific provisions in subpart M govern in subpart
M proceedings.
2. Section 2.1304--Hearing procedures.
The NRC is proposing to remove Sec. 2.1304 and to amend Sec.
2.1300 to clarify that the generally applicable intervention provisions
in subpart C and the specific provisions in subpart M govern in subpart
M proceedings.
3. Section 2.1316--Authority and role of NRC staff.
This section currently allows the NRC staff to submit a simple
notification at any point in the proceeding to become a party. The NRC
is proposing to adopt the requirements in Sec. 2.1202(b)(2) and (3),
which require the NRC staff, within 15 days of the issuance of an order
granting requests for hearing or petitions to intervene and admitting
contentions, to notify the presiding officer and the parties whether it
desires to participate as a party in the proceeding. The staff's notice
would identify the contentions on which it will participate as a party;
the staff would be allowed to join the proceeding at a later stage by
providing notice to the presiding officer, identifying the contentions
on which it wishes to participate as a party, and making the
disclosures required by Sec. 2.336(b)(3) through (5).
G. Subpart N--Sections 2.1400 Through 2.1407
1. Section 2.1403--Authority and role of the NRC staff.
This section, which is essentially identical to Sec. 2.1202, would
be amended to mirror the changes to that section.
This section would also be updated to correct the reference to
Sec. 2.101(f)(8), which should reference Sec. 2.101(e)(8); this
change would not alter the meaning or intent of this regulation.
2. 2.1407--Appeal and Commission review of initial decision.
Proposed Sec. 2.1407(a) would extend the time to file an appeal
and an answer to an appeal from 15 to 25 days.
H. Parts 51 and 54
1. Section 51.4--Definitions.
This section would be amended to remove an outdated reference to
the former Atomic Safety and Licensing Appeal Board in the definition
of NRC Staff. This change would not alter the meaning or intent of this
regulation.
2. Section 51.34--Preparation of finding of no significant impact.
This section would be amended to remove outdated references to
``Subpart G of Part 2'' and to the former Atomic Safety and Licensing
Appeal Board. These changes would not alter the meaning or intent of
this regulation.
3. Section 51.102--Requirement to provide a record of decision;
preparation.
This section would be amended to remove outdated references to
``Subpart G of Part 2'' and to the former Atomic Safety and Licensing
Appeal Board. These changes would not alter the meaning or intent of
this regulation.
4. Section 51.109--Public hearings in proceedings for issuance of
materials licensed with respect to a geologic repository.
This section would be amended to remove an outdated reference to
the former Atomic Safety and Licensing Appeal Board. This change would
not alter the meaning or intent of this regulation.
5. Section 51.125--Responsible official.
This section would be amended to remove outdated references to
``Subpart G of Part 2'' and to the former Atomic Safety and Licensing
Appeal Board. These changes would not alter the meaning or intent of
this regulation.
6. Section 54.27--Hearings.
This section would be amended to replace an outdated reference to a
30-day period to request a hearing with a reference to the correct 60-
day period to request a hearing. This section would retain the
provision that in the absence of any hearing requests, a renewed
operating license may be issued without a hearing upon 30-day notice
published in the Federal Register.
VIII. Plain Language
The Presidential memorandum dated June 1, 1998, entitled ``Plain
Language in Government Writing'' directed that the government's
documents be written in clear and accessible language. This memorandum
was published on June 10, 1998 (63 FR 31883). In complying with this
directive, editorial changes have been made to 10 CFR part 2 to improve
the organization and readability of the sections being revised. These
types of changes are not discussed further in this document. The NRC
requests comments on the proposed rule specifically with respect to the
clarity and effectiveness of the language used. Comments should be sent
to the NRC as explained in the ADDRESSES Section of this document.
[[Page 10795]]
IX. Voluntary Consensus Standards
The National Technology Transfer and Advancement Act of 1995,
Public Law 104-113, requires that Federal agencies use technical
standards that are developed by voluntary, private sector, consensus
standards bodies unless using such a standard is inconsistent with
applicable law or is otherwise impractical. In this rule, the NRC is
approving changes to its procedures for the conduct of hearings in 10
CFR part 2. This action does not constitute the establishment of a
government-unique standard as defined in Office of Management and
Budget (OMB) Circular A-119 (1998).
X. Environmental Impact: Categorical Exclusion
The proposed rule involves an amendment to 10 CFR part 2, and thus
qualifies as an action for which no environmental review is required
under the categorical exclusion set forth in 10 CFR 51.22(c)(1).
Therefore, neither an environmental impact statement nor an
environmental assessment has been prepared for this rulemaking.
XI. Paperwork Reduction Act Statement
This rule does not contain any information collection requirements
and, therefore, is not subject to the requirements of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
Public Protection Notification
The NRC may not conduct or sponsor, and a person is not required to
respond to, a request for information or an information collection
requirement unless the requesting document displays a currently valid
OMB control number.
XII. Regulatory Analysis
The proposed rule emanates from the desire to make corrections,
clarifications, and conforming changes to the NRC's rules of practice
and to improve the hearing process. Those amendments that merely
reflect either clarifications or corrections to the adjudicatory
regulations are not changes to the existing processes. These amendments
would not result in a cost to the NRC or to participants in NRC
adjudicatory proceedings, and a benefit would accrue to the extent that
potential confusion over the meaning of the NRC's regulations is
removed.
The more substantial changes suggested in the proposed rule would
likewise not impose costs upon either the NRC or participants in NRC
adjudications, but would instead bring benefits. Allowing 30 days for
the updating of disclosures made under Sec. 2.336(d) would, in fact,
reduce burdens on the parties. Fairness and equitable treatment would
be furthered by the changes made to the 10 CFR 2.309 filing provisions
and to the 10 CFR part 2 discovery provisions. These discovery
amendments would improve adjudicatory efficiency, as would the
amendments made to the format requirements for findings in final Sec.
2.1209.
The NRC does not believe the option of preserving the status quo is
a preferred option. Failing to correct errors and clarify ambiguities
will result in continuing confusion over the meaning of the rules,
which could lead to the unnecessary waste of resources. Also,
experience has shown that the agency hearing process can be improved
through appropriate rule changes. The NRC believes that the proposed
rule would improve the fairness, efficiency, and openness of NRC
hearings without imposing costs on either the NRC or on participants in
NRC adjudicatory proceedings. This constitutes the regulatory analysis
for the proposed rule.
XIII. Regulatory Flexibility Act Certification
In accordance with the Regulatory Flexibility Act, as amended, 5
U.S.C. 605(b), the NRC certifies that this proposed rule would not have
a significant economic impact on a substantial number of small
entities. This rule would apply in the context of NRC adjudicatory
proceedings concerning nuclear reactors or nuclear materials. Reactor
licensees are large organizations that do not fall within the
definition of a small business found in Section 3 of the Small Business
Act, 15 U.S.C. 632, within the small business standards set forth in 13
CFR part 121, or within the size standards established by the NRC (10
CFR 2.810). Based upon the historically low number of requests for
hearings involving materials licensees, it is not expected that this
rule would have any significant economic impact on a substantial number
of small businesses.
XIV. Backfit Analysis
The NRC has determined that the backfit rule does not apply to the
proposed rule amendments because they do not involve any provisions
that would impose backfits as defined in 10 CFR Chapter I. Therefore, a
backfit analysis is not required for this proposed rule.
List of Subjects
10 CFR Part 2
Administrative practice and procedure, Antitrust, Byproduct
material, Classified information, Environmental protection, Nuclear
materials, Nuclear power plants and reactors, Penalties, Sex
discrimination, Source material, Special nuclear material, Waste
treatment and disposal.
10 CFR Part 51
Administrative practice and procedure, Environmental impact
statement, Nuclear materials, Nuclear power plants and reactors,
Reporting and recordkeeping requirements.
10 CFR Part 54
Administrative practice and procedure, Age-related degradation,
Backfitting, Classified information, Criminal penalties, Environmental
protection, Nuclear power plants and reactors, Reporting and
recordkeeping requirements.
For the reasons set out in the preamble and under the authority of
the Atomic Energy Act of 1954, as amended; the Energy Reorganization
Act of 1974, as amended; and 5 U.S.C. 552, the NRC is proposing to
adopt the following amendments to 10 CFR parts 2, 51, and 54.
PART 2--AGENCY RULES OF PRACTICE AND PROCEDURE
1. The authority citation for part 2 continues to read as follows:
Authority: Secs. 161, 181, 68 Stat. 948, 953, as amended (42
U.S.C. 2201, 2231); sec. 191, as amended, Pub. L. 87-615, 76 Stat.
409 (42 U.S.C. 2241); sec. 201, 88 Stat. 1242, as amended (42 U.S.C.
5841); 5 U.S.C. 552; sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504
note).
Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104,
105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, as amended (42
U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 2135); sec. 114(f); Pub.
L. 97-425, 96 Stat. 2213, as amended (42 U.S.C. 10143(f); sec. 102,
Pub. L 91-190, 83 Stat. 853, as amended (42 U.S.C. 4332); sec. 301,
88 Stat. 1248 (42 U.S.C. 5871).
Sections 2.102, 2.103, 2.104, 2.105, 2.321 also issued under
secs. 102, 103, 104, 105, 183i, 189, 68 Stat. 936, 937, 938, 954,
955, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2233, 2239).
Section 2.105 also issued under Pub. L. 97-415, 96 Stat. 2073 (42
U.S.C. 2239). Sections 2.200-2.206 also issued under secs. 161 b, i,
o, 182, 186, 234, 68 Stat. 948-951, 955, 83 Stat. 444, as amended
(42 U.S.C. 2201(b), (i), (o), 2236, 2282); sec. 206, 88 Stat. 1246
(42 U.S.C. 5846). Section 2.205(j) also issued under Pub. L. 101-
410, 104 Stat. 90, as amended by section 3100(s), Pub. L. 104-134,
110 Stat. 1321-373 (28 U.S.C. 2461 note). Subpart C also issued
under sec. 189, 68 Stat. 955 (42
[[Page 10796]]
U.S.C. 2239). Section 2.301 also issued under 5 U.S.C. 554. Sections
2.343, 2.346, 2.712, also issued under 5 U.S.C. 557. Section 2.340
also issued under secs. 135, 141, Pub. L. 97-425, 96 Stat. 2232,
2241 (42 U.S.C. 10155, 10161). Section 2.390 also issued under sec.
103, 68 Stat. 936, as amended (42 U.S.C. 2133) and 5 U.S.C. 552.
Sections 2.600-2.606 also issued under sec. 102, Pub. L. 91-190, 83
Stat. 853, as amended (42 U.S.C. 4332). Sections 2.800 and 2.808
also issued under 5 U.S.C. 553. Section 2.809 also issued under 5
U.S.C. 553, and sec. 29, Pub. L. 85-256, 71 Stat. 579, as amended
(42 U.S.C. 2039). Subpart K also issued under sec. 189, 68 Stat. 955
(42 U.S.C. 2239); sec. 134, Pub. L. 97-425, 96 Stat. 2230 (42 U.S.C.
10154). Subpart L also issued under sec. 189, 68 Stat. 955 (42
U.S.C. 2239). Subpart M also issued under sec. 184 (42. U.S.C. 2234)
and sec. 189, 68 Stat. 955 (42 U.S.C. 2239). Subpart N also issued
under sec. 189, 68 Stat. 955 (42 U.S.C. 2239). Appendix A also
issued under sec. 6, Pub. L. 91-560, 84 Stat. 1472 (42 U.S.C. 2135).
2. The heading for part 2 is revised to read as set forth above.
3. In part 2, wherever it may appear, revise the phrase ``Presiding
Officer'' to read ``presiding officer''.
4. In Sec. 2.4, paragraph (2) of the definition of ``NRC
personnel'' and the definition of ``Participant'' are revised to read
as follows:
Sec. 2.4 Definitions.
* * * * *
NRC personnel means:
* * * * *
(2) For the purpose of Sec. Sec. 2.702 and 2.709 only, persons
acting in the capacity of consultants to the Commission, regardless of
the form of the contractual arrangements under which such persons act
as consultants to the Commission; and
* * * * *
Participant means an individual or organization (including a
governmental entity) that has petitioned to intervene in a proceeding
or requested a hearing but that has not yet been granted party status
by an Atomic Safety and Licensing Board or other presiding officer.
Participant also means a party to a proceeding and any interested
State, local governmental body, or Federally-recognized Indian Tribe
that seeks to participate in a proceeding under Sec. 2.315(c). For the
purpose of service of documents, the NRC staff is considered a
participant even if not participating as a party.
* * * * *
5. In Sec. 2.101, paragraphs (b), (d), (f)(2)(i)(D), (f)(2)(ii),
and (f)(5) are revised to read as follows:
Sec. 2.101 Filing of application.
* * * * *
(b) After the application has been docketed each applicant for a
license for receipt of waste radioactive material from other persons
for the purpose of commercial disposal by the waste disposal licensee,
except applicants under part 61 of this chapter, which must comply with
paragraph (f) of this section, shall serve a copy of the application
and environmental report, as appropriate, on the chief executive of the
municipality in which the activity is to be conducted or, if the
activity is not to be conducted within a municipality on the chief
executive of the county, and serve a notice of availability of the
application or environmental report on the chief executives of the
municipalities or counties which have been identified in the
application or environmental report as the location of all or part of
the alternative sites, containing the docket number of the application;
a brief description of the proposed site and facility; the location of
the site and facility as primarily proposed and alternatively listed;
the name, address, telephone number, and e-mail address (if available)
of the applicant's representative who may be contacted for further
information; notification that a draft environmental impact statement
will be issued by the Commission and will be made available upon
request to the Commission; and notification that if a request is
received from the appropriate chief executive, the applicant will
transmit a copy of the application and environmental report, and any
changes to such documents which affect the alternative site location,
to the executive who makes the request. In complying with the
requirements of this paragraph the applicant should not make public
distribution of those parts of the application subject to Sec.
2.390(d). The applicant shall submit to the Director, Office of Nuclear
Material Safety and Safeguards or Director, Office of Federal and State
Materials and Environmental Management Programs, as appropriate, an
affidavit that service of the notice of availability of the application
or environmental report has been completed along with a list of names
and addresses of those executives upon whom the notice was served.
* * * * *
(d) The Director, Office of Nuclear Reactor Regulation, Director,
Office of New Reactors, Director, Office of Federal and State Materials
and Environmental Management Programs, or Director, Office of Nuclear
Material Safety and Safeguards, as appropriate, will give notice of the
docketing of the public health and safety, common defense and security,
and environmental parts of an application for a license for a facility
or for receipt of waste radioactive material from other persons for the
purpose of commercial disposal by the waste disposal licensee, except
that for applications pursuant to part 61 of this chapter, paragraph
(f) of this section applies to the Governor or other appropriate
official of the State in which the facility is to be located or the
activity is to be conducted and will publish in the Federal Register a
notice of docketing of the application which states the purpose of the
application and specifies the location at which the proposed activity
would be conducted.
* * * * *
(f) * * *
(2)(i) * * *
(D) Serve a notice of availability of the application and
environmental report on the chief executives or governing bodies of the
municipalities or counties which have been identified in the
application and environmental report as the location of all or part of
the alternative sites if copies are not distributed under paragraph
(f)(2)(i)(C) of this section to the executives or bodies.
(ii) All distributed copies shall be completely assembled documents
identified by docket number. However, subsequently distributed
amendments may include revised pages to previous submittals and, in
these cases, the recipients will be responsible for inserting the
revised pages. In complying with the requirements of paragraph (f) of
this section the applicant may not make public distribution of those
parts of the application subject to Sec. 2.390(d).
* * * * *
(5) The Director, Office of Nuclear Material Safety and Safeguards
or Director, Office of Federal and State Materials and Environmental
Management Programs, as appropriate, will cause to be published in the
Federal Register a notice of docketing which identifies the State and
location of the proposed waste disposal facility and will give notice
of docketing to the governor of that State and other officials listed
in paragraph (f)(3) of this section and will, in a reasonable period
thereafter, publish in the Federal Register a notice under Sec. 2.105
offering an opportunity to request a hearing to the applicant and other
potentially affected persons.
6. In Sec. 2.105, the introductory text of paragraphs (a), (b),
and (d) are revised to read as follows:
[[Page 10797]]
Sec. 2.105 Notice of proposed action.
(a) If a hearing is not required by the Act or this chapter, and if
the Commission has not found that a hearing is in the public interest,
it will, before acting thereon, publish in the Federal Register, as
applicable, or on the NRC Web site, http://www.nrc.gov, or both, at the
Commission's discretion, either a notice of intended operation under
Sec. 52.103(a) of this chapter and a proposed finding that
inspections, tests, analysis, and acceptance criteria for a combined
license under subpart C of part 52 have been or will be met, or a
notice of proposed action with respect to an application for:
* * * * *
(b) A notice of proposed action published in the Federal Register
will set forth:
* * * * *
(d) The notice of proposed action will provide that, within the
time period provided under Sec. 2.309(b):
* * * * *
7. In Sec. 2.305, the heading is revised, and paragraphs (c)(4)
and (g)(1) are revised to read as follows:
Sec. 2.305 Service of documents, methods, proof.
* * * * *
(c) * * *
(4) To provide proof of service, any document served upon
participants to the proceeding as may be required by law, rule, or
order of the presiding officer must be accompanied by a signed
certificate of service stating the names and addresses of the persons
served as well as the method and date of service.
* * * * *
(g) * * *
(1) Service shall be made upon the NRC staff of all documents
required to be filed with participants and the presiding officer in all
proceedings, including those proceedings where the NRC staff informs
the presiding officer of its determination not to participate as a
party. Service upon the NRC staff shall be by the same or equivalent
method as service upon the Office of the Secretary and the presiding
officer, e.g., electronically, personal delivery or courier, express
mail, or expedited delivery service. If no attorney representing the
NRC Staff has filed a notice of appearance in the proceeding and
service is not being made through the E-Filing System, service will be
made using the following addresses, as applicable: By delivery to the
Associate General Counsel for Hearings, Enforcement & Administration,
One White Flint North, 11555-0001 Rockville Pike, Rockville, MD 20852;
by mail addressed to the Associate General Counsel for Hearings,
Enforcement & Administration, U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001; by e-mail to [email protected];
or by facsimile to 301-415-3725.
* * * * *
8. In Sec. 2.309, paragraph (b)(5), (c), (d)(2), and (d)(3) are
revised, paragraphs (h) and (i) are redesignated as paragraphs (i) and
(j), respectively, and revised, and a new paragraph (h) is added to
read as follows:
Sec. 2.309 Hearing requests, petitions to intervene, requirements for
standing, and contentions.
* * * * *
(b) * * *
(5) For orders issued under Sec. Sec. 2.202 or 2.205 the time
period provided therein.
(c) Subsequent submission of petition/request or new or amended
contentions. (1) Determination by presiding officer. Hearing requests,
intervention petitions, and new or amended contentions filed after the
deadlines in paragraph (b) of this section, will not be entertained
absent a determination by the presiding officer that there is good
cause for its submission after the deadlines in paragraph (b) of this
section.
(2) Good cause. To show good cause for a request for hearing,
petition to intervene, or a new or amended contention filed after the
deadlines in paragraph (b) of this section, the requestor or petitioner
must demonstrate that:
(i) The information upon which the filing is based was not
previously available;
(ii) The information upon which the filing is based is materially
different from information previously available; and
(iii) The filing has been submitted in a timely fashion based on
the availability of the subsequent information.
(3) New petitioner. A hearing request or intervention petition
filed after the deadlines in paragraph (b) of this section must include
a specification of contentions if the petitioner seeks admission as a
party, and must also demonstrate that the petitioner meets the
applicable standing and contention admissibility requirements in
paragraphs (d) and (f) of this section.
(4) Party or participant. A new or amended contention filed by a
party or participant to the proceeding must also meet the applicable
contention admissibility requirements in paragraph (f) of this section.
If the party or participant has already addressed the requirements for
standing under paragraph (d) of this section in the same proceeding in
which the new or amended contentions are filed, it does not need to do
so again.
(5) Environmental contentions. For a new or amended contention
arising under the National Environmental Policy Act and based on
conclusions in an NRC draft or final environmental impact statement,
environmental assessment, or any supplements relating thereto, the
party or participant also must show that the data or conclusions in the
NRC's documents differ significantly from the data or conclusions in
the applicant's environmental report.
(d) * * *
(2) Rulings. In ruling on a request for hearing or petition for
leave to intervene, the Commission, the presiding officer, or the
Atomic Safety and Licensing Board designated to rule on such requests
must determine, among other things, whether the petitioner has an
interest affected by the proceeding considering the factors enumerated
in paragraph (d)(1) of this section.
(3) Standing in enforcement proceedings. In enforcement
proceedings, the licensee or other person against whom the action is
taken shall have standing.
* * * * *
(h) Requirements applicable to States, local governmental bodies,
and Federally-recognized Indian Tribes seeking party status. (1) If a
State, local governmental body (county, municipality or other
subdivision), or Federally-recognized Indian Tribe seeks to participate
as a party in a proceeding, it must submit a request for hearing or a
petition to intervene containing at least one admissible contention,
and must designate a single representative for the hearing. If a
request for hearing or petition to intervene is granted, the
Commission, the presiding officer or the Atomic Safety and Licensing
Board ruling on the request will admit as a party to the proceeding a
single designated representative of the State, a single designated
representative for each local governmental body (county, municipality
or other subdivision), and a single designated representative for each
Federally-recognized Indian Tribe. Where a State's constitution
provides that both the Governor and another State official or State
governmental body may represent the interests of the State in a
proceeding, the Governor and the other State official/government body
will be considered separate potential parties.
[[Page 10798]]
(2) If the proceeding pertains to a production or utilization
facility (as defined in Sec. 50.2 of this chapter) located within the
boundaries of the State, local governmental body, or Federally-
recognized Indian Tribe seeking to participate as a party, no further
demonstration of standing is required. If the production or utilization
facility is not located within the boundaries of the State, local
governmental body, or Federally-recognized Indian Tribe seeking to
participate as a party, the State, local governmental body, or
Federally-recognized Indian Tribe also must demonstrate standing.
(3) In any proceeding on an application for a construction
authorization for a high-level radioactive waste repository at a
geologic repository operations area under parts 60 or 63 of this
chapter, or an application for a license to receive and possess high-
level radioactive waste at a geologic repository operations area under
parts 60 or 63 of this chapter, the Commission shall permit
intervention by the State and local governmental body (county,
municipality or other subdivision) in which such an area is located and
by any affected Federally-recognized Indian Tribe as defined in parts
60 or 63 of this chapter if the requirements of paragraph (f) of this
section are satisfied with respect to at least one contention. All
other petitions for intervention in any such proceeding must be
reviewed under the provisions of paragraphs (a) through (f) of this
section.
(i) Answers to hearing requests, intervention petitions, and
requests to admit new or amended contentions after the initial filing.
Unless otherwise specified by the Commission, the presiding officer, or
the Atomic Safety and Licensing Board designated to rule on the
request/petition--
(1) The applicant/licensee, the NRC staff, and other parties to a
proceeding may file an answer to a hearing request, intervention
petition, or a request to admit amended or new contentions after the
initial filing within 25 days after service of the request or petition.
Answers should address, at a minimum, the factors set forth in
paragraphs (a) through (h) of this section insofar as these sections
apply to the filing that is the subject of the answer.
(2) Except in a proceeding under Sec. 52.103 of this chapter, the
requestor/petitioner may file a reply to any answer. The reply must be
filed within 7 days after service of that answer.
(3) No other written answers or replies will be entertained.
(j) Decision on request/petition. (1) In all proceedings other than
a proceeding under Sec. 52.103 of this chapter, the presiding officer
shall issue a decision on each request for hearing or petition to
intervene within 45 days of the conclusion of the initial pre-hearing
conference or, if no pre-hearing conference is conducted, within 45
days after the filing of answers and replies under paragraph (i) of
this section. With respect to a request to admit amended or new
contentions, the presiding officer shall issue a decision on each such
request within 45 days of the conclusion of any pre-hearing conference
that may be conducted regarding the proposed amended or new contentions
or, if no pre-hearing conference is conducted, within 45 days after the
filing of answers and replies, if any. In the event the presiding
officer cannot issue a decision within 45 days, the presiding officer
shall issue a notice advising the Commission and the parties, and the
notice shall include the expected date of when the decision will issue.
(2) The Commission, acting as the presiding officer, shall
expeditiously grant or deny the request for hearing in a proceeding
under Sec. 52.103 of this chapter. The Commission's decision may not
be the subject of any appeal under Sec. 2.311.
9. In Sec. 2.311, paragraph (b) is revised to read as follows:
Sec. 2.311 Interlocutory review of rulings on requests for hearings/
petitions to intervene, selection of hearing procedures, and requests
by potential parties for access to sensitive unclassified non-
safeguards information and safeguards information.
* * * * *
(b) These appeals must be made as specified by the provisions of
this section, within 25 days after the service of the order. The appeal
must be initiated by the filing of a notice of appeal and accompanying
supporting brief. Any party who opposes the appeal may file a brief in
opposition to the appeal within 25 days after service of the appeal.
The supporting brief and any answer must conform to the requirements of
Sec. 2.341(c)(2). No other appeals from rulings on requests for
hearings are allowed.
* * * * *
10. In Sec. 2.314, paragraph (c)(3) is revised to read as follows:
Sec. 2.314 Appearance and practice before the Commission in
adjudicatory proceedings.
* * * * *
(c) * * *
(3) Anyone disciplined under this section may file an appeal with
the Commission within 25 days after issuance of the order. The appeal
must be in writing and state concisely, with supporting argument, why
the appellant believes the order was erroneous, either as a matter of
fact or law. The Commission shall consider each appeal on the merits,
including appeals in cases in which the suspension period has already
run. If necessary for a full and fair consideration of the facts, the
Commission may conduct further evidentiary hearings, or may refer the
matter to another presiding officer for development of a record. In the
latter event, unless the Commission provides specific directions to the
presiding officer, that officer shall determine the procedure to be
followed and who shall present evidence, subject to applicable
provisions of law. The hearing must begin as soon as possible. In the
case of an attorney, if no appeal is taken of a suspension, or, if the
suspension is upheld at the conclusion of the appeal, the presiding
officer, or the Commission, as appropriate, shall notify the State
bar(s) to which the attorney is admitted. The notification must include
copies of the order of suspension, and, if an appeal was taken, briefs
of the parties, and the decision of the Commission.
* * * * *
11. In Sec. 2.315, paragraph (c) is revised to read as follows:
Sec. 2.315 Participation by a person not a party.
* * * * *
(c) The presiding officer will afford an interested State, local
governmental body (county, municipality or other subdivision), and
Federally-recognized Indian Tribe that has not been admitted as a party
under Sec. 2.309, a reasonable opportunity to participate in a
hearing. The participation of any State, local governmental body, or
Federally-recognized Indian Tribe shall be limited to unresolved issues
and contentions, and issues and contentions that are raised after the
State, local governmental body, or Federally-recognized Indian Tribe
becomes a participant. Each State, local governmental body, and
Federally-recognized Indian Tribe shall, in its request to participate
in a hearing, designate a single representative for the hearing. The
representative shall be permitted to introduce evidence, interrogate
witnesses where cross examination by the parties is permitted, advise
the Commission without requiring the representative to take a position
with respect to the issue, file proposed findings in those proceedings
where findings are permitted, and petition for review by the Commission
under Sec. 2.341 with respect to the admitted contentions. The
[[Page 10799]]
representative shall identify those contentions on which they will
participate in advance of any hearing held.
* * * * *
12. In Sec. 2.319, paragraph (l) is revised, paragraph (r) is
redesignated as paragraph (s), and a new paragraph (r) is added to read
as follows:
Sec. 2.319 Power of the presiding officer.
* * * * *
(l) Refer rulings to the Commission under Sec. 2.323(f)(1), or
certify questions to the Commission for its determination, either in
the presiding officer's discretion, or on petition of a party under
Sec. 2.323(f)(2), or on direction of the Commission.
* * * * *
(r) Establish a schedule for briefs and oral arguments to decide
any admitted contentions that, as determined by the presiding officer,
constitute pure issues of law.
* * * * *
13. In Sec. 2.323, paragraph (f) is revised to read as follows:
Sec. 2.323 Motions.
* * * * *
(f) Referral and certifications to the Commission. (1) If, in the
judgment of the presiding officer, the presiding officer's decision
raises significant and novel legal or policy issues, or prompt decision
by the Commission is necessary to materially advance the orderly
disposition of the proceeding, then the presiding officer may promptly
refer the ruling to the Commission. The presiding officer shall notify
the parties of the referral either by announcement on-the-record or by
written notice if the hearing is not in session.
(2) A party may petition the presiding officer to certify a
question to the Commission for early review. The presiding officer
shall apply the criteria in Sec. 2.341(f)(1) in determining whether to
grant the petition for certification. No motion for reconsideration of
the presiding officer's ruling on a petition for certification will be
entertained.
* * * * *
14. In Sec. 2.335, paragraphs (b), (c), and (e) are revised to
read as follows:
Sec. 2.335 Consideration of Commission rules and regulations in
adjudicatory proceedings.
* * * * *
(b) A participant to an adjudicatory proceeding subject to this
part may petition that the application of a specified Commission rule
or regulation or any provision thereof, of the type described in
paragraph (a) of this section, be waived or an exception be made for
the particular proceeding. The sole ground for petition of waiver or
exception is that special circumstances with respect to the subject
matter of the particular proceeding are such that the application of
the rule or regulation (or a provision of it) would not serve the
purposes for which the rule or regulation was adopted. The petition
must be accompanied by an affidavit that identifies the specific aspect
or aspects of the subject matter of the proceeding as to which the
application of the rule or regulation (or provision of it) would not
serve the purposes for which the rule or regulation was adopted. The
affidavit must state with particularity the special circumstances
alleged to justify the waiver or exception requested. Any other
participant may file a response by counter-affidavit or otherwise.
(c) If, on the basis of the petition, affidavit, and any response
permitted under paragraph (b) of this section, the presiding officer
determines that the petitioning participant has not made a prima facie
showing that the application of the specific Commission rule or
regulation (or provision thereof) to a particular aspect or aspects of
the subject matter of the proceeding would not serve the purposes for
which the rule or regulation was adopted and that application of the
rule or regulation should be waived or an exception granted, no
evidence may be received on that matter and no discovery, cross
examination, or argument directed to the matter will be permitted, and
the presiding officer may not further consider the matter.
* * * * *
(e) Whether or not the procedure in paragraph (b) of this section
is available, a participant to an initial or renewal licensing
proceeding may file a petition for rulemaking under Sec. 2.802.
15. In Sec. 2.336, the introductory text to paragraph (b) and
paragraph (d) are revised to read as follows:
Sec. 2.336 General discovery.
* * * * *
(b) Except for enforcement proceedings initiated under subpart B of
this part and conducted under subpart G of this part, and proceedings
conducted under subpart J of this part, or as otherwise ordered by the
Commission, the presiding officer, or the Atomic Safety and Licensing
Board assigned to the proceeding, the NRC staff must, within 30 days of
the issuance of the order granting a request for hearing or petition to
intervene and without further order or request from any party, disclose
or provide to the extent available (but excluding those documents for
which there is a claim of privilege or protected status):
* * * * *
(d) The duty of disclosure under this section is continuing. A
disclosure update must be made every thirty (30) days after initial
disclosures. The disclosure update is limited to documents subject to
disclosure under this section that have not been disclosed in a prior
update and that are developed, obtained, or discovered during the
period that runs from the 5 business days before last disclosure update
to 5 business days before the filing of the update. The duty of
mandatory disclosure with respect to new information or documents
relevant to a contention ends when presiding officer issues a decision
on that contention, or at such other time as may be specified by the
presiding officer or the Commission.
* * * * *
16. Section 2.340 is revised to read as follows:
Sec. 2.340 Initial decision in certain contested proceedings;
immediate effectiveness of initial decisions; issuance of
authorizations, permits, and licenses.
(a) Initial decision--production or utilization facility operating
license. (1) Matters in controversy; presiding officer consideration of
matters not put in controversy by parties. In any initial decision in a
contested proceeding on an application for an operating license or
renewed license (including an amendment to or renewal of an operating
license or renewed license) for a production or utilization facility,
the presiding officer shall make findings of fact and conclusions of
law on the matters put into controversy by the parties and any matter
designated by the Commission to be decided by the presiding officer.
The presiding officer shall also make findings of fact and conclusions
of law on any matter not put into controversy by the parties, but only
to the extent that the presiding officer determines that a serious
safety, environmental, or common defense and security matter exists,
and the Commission approves of an examination of and decision on the
matter upon its referral by the presiding officer under, inter alia,
the provisions of Sec. Sec. 2.323 and 2.341.
(2) Presiding officer initial decision and issuance of permit or
license. (i) In a contested proceeding for the initial issuance or
renewal of a construction permit, operating license, or renewed
license, or the amendment of an operating or renewed license where the
NRC has not made a determination of no significant hazards
consideration, the
[[Page 10800]]
Commission, the Director, Office of Nuclear Reactor Regulation, or the
Director, Office of New Reactors, as appropriate, after making the
requisite findings, shall issue, deny, or appropriately condition the
permit or license in accordance with the presiding officer's initial
decision once that decision becomes effective.
(ii) In a contested proceeding for the amendment of a construction
permit, operating license, or renewed license where the NRC has made a
determination of no significant hazards consideration, the Commission,
the Director, Office of Nuclear Reactor Regulation, or the Director,
Office of New Reactors, as appropriate (appropriate official), after
making the requisite findings and complying with any applicable
provisions of Sec. 2.1202(a) or Sec. 2.1403(a), may issue the
amendment before the presiding officer's initial decision becomes
effective. Once the presiding officer's initial decision becomes
effective, the appropriate official shall take action with respect to
that amendment in accordance with the initial decision. If the
presiding officer's initial decision becomes effective before the
appropriate official issues the amendment, then the appropriate
official, after making the requisite findings, shall issue, deny, or
appropriately condition the amendment in accordance with the presiding
officer's initial decision.
(b) Initial decision--combined license under 10 CFR part 52. (1)
Matters in controversy; presiding officer consideration of matters not
put in controversy by parties. In any initial decision in a contested
proceeding on an application for a combined license under part 52 of
this chapter (including an amendment to or renewal of combined
license), the presiding officer shall make findings of fact and
conclusions of law on the matters put into controversy by the parties
and any matter designated by the Commission to be decided by the
presiding officer. The presiding officer shall also make findings of
fact and conclusions of law on any matter not put into controversy by
the parties, but only to the extent that the presiding officer
determines that a serious safety, environmental, or common defense and
security matter exists, and the Commission approves of an examination
of and decision on the matter upon its referral by the presiding
officer under, inter alia, the provisions of Sec. Sec. 2.323 and
2.341.
(2) Presiding officer initial decision and issuance of permit or
license. (i) In a contested proceeding for the initial issuance or
renewal of a combined license under part 52 of this chapter, or the
amendment of a combined license where the NRC has not made a
determination of no significant hazards consideration, the Commission,
the Director, Office of Nuclear Reactor Regulation, or the Director,
Office of New Reactors, as appropriate, after making the requisite
findings, shall issue, deny, or appropriately condition the permit or
license in accordance with the presiding officer's initial decision
once that decision becomes effective.
(ii) In a contested proceeding for the amendment of a combined
license under part 52 of this chapter where the NRC has made a
determination of no significant hazards consideration, the Commission,
the Director, Office of Nuclear Reactor Regulation, or the Director,
Office of New Reactors, as appropriate (appropriate official), after
making the requisite findings and complying with any applicable
provisions of Sec. 2.1202(a) or Sec. 2.1403(a), may issue the
amendment before the presiding officer's initial decision becomes
effective. Once the presiding officer's initial decision becomes
effective, the appropriate official shall take action with respect to
that amendment in accordance with the initial decision. If the
presiding officer's initial decision becomes effective before the
appropriate official issues the amendment, then the appropriate
official, after making the requisite findings, shall issue, deny, or
appropriately condition the amendment in accordance with the presiding
officer's initial decision.
(c) Initial decision on findings under 10 CFR 52.103 with respect
to acceptance criteria in nuclear power reactor combined licenses. In
any initial decision under Sec. 52.103(g) of this chapter with respect
to whether acceptance criteria have been or will be met, the presiding
officer shall make findings of fact and conclusions of law on the
matters put into controversy by the parties, and any matter designated
by the Commission to be decided by the presiding officer. Matters not
put into controversy by the parties, but identified by the presiding
officer as matters requiring further examination, shall be referred to
the Commission for its determination; the Commission may, in its
discretion, treat any of these referred matters as a request for action
under Sec. 2.206 and process the matter in accordance with Sec.
52.103(f) of this chapter.
(d) Initial decision--manufacturing license under 10 CFR part 52.
(1) Matters in controversy; presiding officer consideration of matters
not put in controversy by parties. In any initial decision in a
contested proceeding on an application for a manufacturing license
under subpart C of part 52 of this chapter (including an amendment to
or renewal of a manufacturing license), the presiding officer shall
make findings of fact and conclusions of law on the matters put into
controversy by the parties and any matter designated by the Commission
to be decided by the presiding officer. The presiding officer also
shall make findings of fact and conclusions of law on any matter not
put into controversy by the parties, but only to the extent that the
presiding officer determines that a serious safety, environmental, or
common defense and security matter exists, and the Commission approves
of an examination of and decision on the matter upon its referral by
the presiding officer under, inter alia, the provisions of Sec. Sec.
2.323 and 2.341.
(2) Presiding officer initial decision and issuance of permit or
license. (i) In a contested proceeding for the initial issuance or
renewal of a manufacturing license under subpart C of part 52 of this
chapter, or the amendment of a manufacturing license, the Commission,
the Director, Office of Nuclear Reactor Regulation, or the Director,
Office of New Reactors, as appropriate, after making the requisite
findings, shall issue, deny, or appropriately condition the permit or
license in accordance with the presiding officer's initial decision
once that decision becomes effective.
(ii) In a contested proceeding for the initial issuance or renewal
of a manufacturing license under subpart C of part 52 of this chapter,
or the amendment of a manufacturing license, the Commission, the
Director, Office of Nuclear Reactor Regulation, or the Director, Office
of New Reactors, as appropriate, may issue the license, permit, or
license amendment in accordance with Sec. 2.1202(a) or Sec. 2.1403(a)
before the presiding officer's initial decision becomes effective. If,
however, the presiding officer's initial decision becomes effective
before the license, permit, or license amendment is issued under Sec.
2.1202 or Sec. 2.1403, then the Commission, the Director, Office of
Nuclear Reactor Regulation, or the Director, Office of New Reactors, as
appropriate, shall issue, deny, or appropriately condition the license,
permit, or license amendment in accordance with the presiding officer's
initial decision.
(e) Initial decision--other proceedings not involving production or
utilization facilities. (1) Matters in controversy; presiding officer
consideration of matters not put in controversy by parties. In a
proceeding not involving production or utilization facilities, the
[[Page 10801]]
presiding officer shall make findings of fact and conclusions of law on
the matters put into controversy by the parties to the proceeding, and
on any matters designated by the Commission to be decided by the
presiding officer. Matters not put into controversy by the parties, but
identified by the presiding officer as requiring further examination,
must be referred to the Director, Office of Nuclear Material Safety and
Safeguards, or the Director, Office of Federal and State Materials and
Environmental Management Programs, as appropriate. Depending on the
resolution of those matters, the Director, Office of Nuclear Material
Safety and Safeguards or the Director, Office of Federal and State
Materials and Environmental Management Programs, as appropriate, after
making the requisite findings, shall issue, deny, revoke or
appropriately condition the license, or take other action as necessary
or appropriate.
(2) Presiding officer initial decision and issuance of permit or
license. (i) In a contested proceeding under this paragraph, the
Commission, the Director, Office of Nuclear Material Safety and
Safeguards, or the Director, Office of Federal and State Materials and
Environmental Management Programs, as appropriate, shall issue, deny,
or appropriately condition the permit, license, or license amendment in
accordance with the presiding officer's initial decision once that
decision becomes effective.
(ii) In a contested proceeding under this paragraph, the
Commission, the Director, Office of Nuclear Material Safety and
Safeguards, or the Director, Office of Federal and State Materials and
Environmental Management Programs, as appropriate, may issue the
permit, license, or amendment in accordance with Sec. 2.1202(a) or
Sec. 2.1403(a) before the presiding officer's initial decision becomes
effective. If, however, the presiding officer's initial decision
becomes effective before the permit, license, or amendment is issued
under Sec. 2.1202 or Sec. 2.1403, then the Commission, the Director,
Office of Nuclear Material Safety and Safeguards, or the Director,
Office of Federal and State Materials and Environmental Management
Programs, as appropriate, shall issue, deny, or appropriately condition
the permit, license, or amendment in accordance with the presiding
officer's initial decision.
(f) Immediate effectiveness of certain presiding officer decisions.
A presiding officer's initial decision directing the issuance or
amendment of a limited work authorization under Sec. 50.10 of this
chapter, an early site permit under subpart A of part 52 of this
chapter, a construction permit or construction authorization under part
50 of this chapter, an operating license under part 50 of this chapter,
a combined license under subpart C of part 52 of this chapter, a
manufacturing license under subpart F of part 52 of this chapter, or a
license under part 72 of this chapter to store spent fuel in an
independent spent fuel storage facility (ISFSI) or a monitored
retrievable storage installation (MRS), an initial decision directing
issuance of a license under part 61 of this chapter, or an initial
decision under Sec. 52.103(g) of this chapter that acceptance criteria
in a combined license have been met, is immediately effective upon
issuance unless the presiding officer finds that good cause has been
shown by a party why the initial decision should not become immediately
effective.
(g)-(h) [Reserved]
(i) Issuance of authorizations, permits, and licenses--production
and utilization facilities. The Commission, the Director, Office of New
Reactors, or the Director, Office of Nuclear Reactor Regulation, as
appropriate, shall issue a limited work authorization under Sec. 50.10
of this chapter, an early site permit under subpart A of part 52 of
this chapter, a construction permit or construction authorization under
part 50 of this chapter, an operating license under part 50 of this
chapter, a combined license under subpart C of part 52 of this chapter,
or a manufacturing license under subpart F of part 52 of this chapter
within 10 days from the date of issuance of the initial decision:
(1) If the Commission or the appropriate Director has made all
findings necessary for issuance of the authorization, permit or
license, not within the scope of the initial decision of the presiding
officer; and
(2) Notwithstanding the pendency of a petition for reconsideration
under Sec. 2.345, a petition for review under Sec. 2.341, or a motion
for stay under Sec. 2.342, or the filing of a petition under Sec.
2.206.
(j) Issuance of finding on acceptance criteria under 10 CFR 52.103.
The Commission, the Director, Office of New Reactors, or the Director,
Office of Nuclear Reactor Regulation, as appropriate, shall make the
finding under Sec. 52.103(g) of this chapter that the acceptance
criteria in a combined license have been, or will be met, within 10
days from the date of issuance of the initial decision:
(1) If the Commission or the appropriate Director has made the
finding under Sec. 52.103(g) of this chapter that acceptance criteria
have been, or will be met, for those acceptance criteria which are not
within the scope of the initial decision of the presiding officer; and
(2) Notwithstanding the pendency of a petition for reconsideration
under Sec. 2.345, a petition for review under Sec. 2.341, or a motion
for stay under Sec. 2.342, or the filing of a petition under Sec.
2.206.
(k) Issuance of other licenses. The Commission or the Director,
Office of Nuclear Material Safety and Safeguards, or the Director,
Office of Federal and State Materials and Environmental Management
Programs, as appropriate, shall issue a license, including a license
under part 72 of this chapter to store spent fuel in either an
independent spent fuel storage facility (ISFSI) located away from a
reactor site or at a monitored retrievable storage installation (MRS),
within 10 days from the date of issuance of the initial decision:
(1) If the Commission or the appropriate Director has made all
findings necessary for issuance of the license, not within the scope of
the initial decision of the presiding officer; and
(2) Notwithstanding the pendency of a petition for reconsideration
under Sec. 2.345, a petition for review under Sec. 2.341, or a motion
for stay under Sec. 2.342, or the filing of a petition under Sec.
2.206.
17. In Sec. 2.341, paragraphs (a), (b)(1), (b)(3), (c), and (f)(1)
are revised to read as follows:
Sec. 2.341 Review of decisions and actions of a presiding officer.
(a)(1) Review of decisions and actions of a presiding officer are
treated under this section; provided, however, that no party may
request a further Commission review of a Commission determination to
allow a period of interim operation under Sec. 52.103(c) of this
chapter. This section does not apply to appeals under Sec. 2.311 or to
appeals in the high-level waste proceeding, which are governed by Sec.
2.1015.
(2) Within 120 days after the date of a decision or action by a
presiding officer, or within 120 days after a petition for review of
the decision or action has been served under paragraph (b) of this
section, whichever is greater, the Commission may review the decision
or action on its own motion, unless the Commission, in its discretion,
extends the time for its review.
(b)(1) Within 25 days after service of a full or partial initial
decision by a presiding officer, and within 25 days
[[Page 10802]]
after service of any other decision or action by a presiding officer
with respect to which a petition for review is authorized by this part,
a party may file a petition for review with the Commission on the
grounds specified in paragraph (b)(4) of this section. Unless otherwise
authorized by law, a party to an NRC proceeding must file a petition
for Commission review before seeking judicial review of an agency
action.
* * * * *
(3) Any other party to the proceeding may, within 25 days after
service of a petition for review, file an answer supporting or opposing
Commission review. This answer may not be longer than 25 pages and
should concisely address the matters in paragraph (b)(2) of this
section to the extent appropriate. The petitioning party may file a
reply brief within 10 days of service of any answer. This reply brief
may not be longer than 5 pages.
* * * * *
(c)(1) If within 120 days after the filing of a petition for review
the Commission does not grant the petition, in whole or in part, the
petition is deemed to be denied, unless the Commission, in its
discretion, extends the time for its consideration of the petition and
any answers to the petition.
(2) If a petition for review is granted, the Commission may issue
an order specifying the issues to be reviewed and designating the
parties to the review proceeding. The Commission may, in its
discretion, decide the matter on the basis of the petition for review
or it may specify whether any briefs may be filed.
(3) Unless the Commission orders otherwise, any briefs on review
may not exceed 30 pages in length, exclusive of pages containing the
table of contents, table of citations, and any addendum containing
appropriate exhibits, statutes, or regulations. A brief in excess of 10
pages must contain a table of contents with page references and a table
of cases (alphabetically arranged), cited statutes, regulations, and
other authorities, with references to the pages of the brief where they
are cited.
* * * * *
(f) * * *
(1) A ruling referred or question certified to the Commission under
Sec. Sec. 2.319(l) or 2.323(f) may be reviewed if the certification or
referral raises significant and novel legal or policy issues, or
resolution of the issues would materially advance the orderly
disposition of the proceeding.
* * * * *
18. In Sec. 2.346, paragraphs (e) and (j) are revised to read as
follows:
Sec. 2.346 Authority of the Secretary.
* * * * *
(e) Extend the time for the Commission to grant review on its own
motion under Sec. 2.341;
* * * * *
(j) Take action on procedural or other minor matters.
19. In Sec. 2.347, paragraphs (e)(1)(i) and (e)(1)(ii) are revised
to read as follows:
Sec. 2.347 Ex parte communications.
* * * * *
(e)(1) * * *
(i) When a notice of hearing or other comparable order is issued in
accordance with Sec. Sec. 2.104(a), 2.105(e)(2), 2.202(c), 2.205(e),
or 2.312; or
(ii) Whenever the interested person or Commission adjudicatory
employee responsible for the communication has knowledge that a notice
of hearing or other comparable order will be issued in accordance with
Sec. Sec. 2.104(a), 2.105(e)(2), 2.202(c), 2.205(e), or 2.312.
* * * * *
20. In Sec. 2.348, paragraphs (d)(1)(i) and (d)(1)(ii) are revised
to read as follows:
Sec. 2.348 Separation of functions.
* * * * *
(d)(1) * * *
(i) When a notice of hearing or other comparable order is issued in
accordance with Sec. Sec. 2.104(a), 2.105(e)(2), 2.202(c), 2.205(e),
or 2.312; or
(ii) Whenever an NRC officer or employee who is or has reasonable
cause to believe he or she will be engaged in the performance of an
investigative or litigating function or a Commission adjudicatory
employee has knowledge that a notice of hearing or other comparable
order will be issued in accordance with Sec. Sec. 2.104(a),
2.105(e)(2), 2.202(c), 2.205(e), or 2.312.
* * * * *
21. In Sec. 2.704, paragraph (a)(3) is revised to read as follows:
Sec. 2.704 Discovery-required disclosures.
(a) * * *
(3) Unless otherwise stipulated by the parties or directed by order
of the presiding officer, these disclosures must be made within 30 days
of the order granting a hearing. A party must make its initial
disclosures based on the information then reasonably available to it. A
party is not excused from making its disclosures because it has not
fully completed its investigation of the case, because it challenges
the sufficiency of another party's disclosures, or because another
party has not made its disclosures. The duty of disclosure under this
section is continuing. A disclosure update must be made every 30 days
after initial disclosures. The disclosure update must contain any
information or documents subject to disclosure under this section that
have not been disclosed in a prior update and that are developed,
obtained, or discovered during the period that runs from the last
disclosure update to 5 business days before the filing of the update.
The duty of mandatory disclosure with respect to new information or
documents relevant to a contention ends when the hearing with respect
to that contention has concluded, or at such other time as may be
specified by the presiding officer or the Commission.
* * * * *
22. In Sec. 2.705, the introductory text to paragraph (b)(2) is
revised to read as follows:
Sec. 2.705 Discovery-additional methods.
* * * * *
(b) * * *
(2) Upon his or her own initiative after reasonable notice or in
response to a motion filed under paragraph (c) of this section, the
presiding officer may set limits on the number of depositions and
interrogatories, and may also limit the length of depositions under
Sec. 2.706 and the number of requests under Sec. Sec. 2.707 and
2.708. The presiding officer shall limit the frequency or extent of use
of the discovery methods otherwise permitted under these rules if he or
she determines that:
* * * * *
23. In Sec. 2.709, paragraphs (a)(6) and (a)(7) are added to read
as follows:
Sec. 2.709 Discovery against NRC staff.
(a) * * *
(6)(i) In a proceeding arising from an order issued under
Sec. Sec. 2.202 or 2.205, the NRC staff must, except to the extent
otherwise stipulated or directed by order of the presiding officer or
the Commission, provide to the other parties within thirty (30) days of
the order granting a hearing and without awaiting a discovery request:
(A) All NRC staff documents relevant to disputed issues alleged
with particularity in the pleadings, including any Office of
Investigations report and supporting exhibits, and any Office of
Enforcement documents regarding the order; and
(B) A list of all documents otherwise responsive to paragraph
(a)(6)(i)(A) of this section for which a claim of privilege or
protected status is being made, together with sufficient information
for assessing the claim of privilege or protected status of the
documents.
(ii) The duty of disclosure under this section is continuing. A
disclosure
[[Page 10803]]
update must be made every thirty (30) days after initial disclosures.
The disclosure update must contain any information or documents subject
to disclosure under this section that have not been disclosed in a
prior update and that are developed, obtained, or discovered during the
period that runs from the last disclosure update to five (5) business
days before the filing of the update. The duty of mandatory disclosure
with respect to new information or documents relevant to a contention
ends when the hearing with respect to that contention has concluded, or
at such other time as may be specified by the presiding officer or the
Commission.
(7) When any document, data compilation, or other tangible thing
that must be disclosed is publicly available from another source, such
as at the NRC Web site, http://www.nrc.gov, and/or the NRC Public
Document Room, a sufficient disclosure would be the location (including
the ADAMS accession number, when available), the title and a page
reference to the relevant document, data compilation, or tangible
thing.
* * * * *
24. In Sec. 2.710, paragraph (a) is revised to read as follows:
Sec. 2.710 Motions for summary disposition.
(a) Any party to a proceeding may move, with or without supporting
affidavits, for a decision by the presiding officer in that party's
favor as to all or any part of the matters involved in the proceeding.
Summary disposition motions must be filed no later than 20 days after
the close of discovery. The moving party shall attach to the motion a
short and concise statement of the material facts as to which the
moving party contends that there is no genuine issue to be heard. Any
other party may serve an answer supporting or opposing the motion, with
or without affidavits, within 20 days after service of the motion. The
party shall attach to any answer opposing the motion a short and
concise statement of the material facts as to which it is contended
there exists a genuine issue to be heard. All material facts set forth
in the statement required to be served by the moving party will be
considered to be admitted unless controverted by the statement required
to be served by the opposing party. The opposing party may, within 10
days after service, respond in writing to new facts and arguments
presented in any statement filed in support of the motion. No further
supporting statements or responses to the motion will be entertained.
* * * * *
25. In Sec. 2.802, paragraph (d) is revised to read as follows:
Sec. 2.802 Petition for rulemaking.
* * * * *
(d) The petitioner may request the Commission to suspend all or any
part of any licensing proceeding to which the petitioner is a
participant pending disposition of the petition for rulemaking.
* * * * *
Subpart L--Simplified Hearing Procedures for NRC Adjudications
26. The heading of subpart L is revised to read as set forth above:
27. In Sec. 2.1202, the introductory text of paragraph (a) is
revised to read as follows:
Sec. 2.1202 Authority and role of NRC staff.
(a) During the pendency of any hearing under this subpart,
consistent with the NRC staff's findings in its review of the
application or matter which is the subject of the hearing and as
authorized by law, the NRC staff is expected to promptly issue its
approval or denial of the application, or take other appropriate action
on the underlying regulatory matter for which a hearing was provided.
When the NRC staff takes its action, it must notify the presiding
officer and the parties to the proceeding of its action. That notice
must include the NRC staff's explanation why the public health and
safety is protected and why the action is in accord with the common
defense and security despite the pendency of the contested matter
before the presiding officer. The NRC staff's action on the matter is
effective upon issuance by the staff, except in matters involving:
* * * * *
28. In Sec. 2.1205, paragraph (a) is revised to read as follows:
Sec. 2.1205 Summary disposition.
(a) Unless the presiding officer or the Commission directs
otherwise, motions for summary disposition may be submitted to the
presiding officer by any party no later than 45 days before the
commencement of hearing. The motions must be in writing and must
include a written explanation of the basis of the motion. The moving
party must attach a short and concise statement of material facts for
which the moving party contends that there is no genuine issue to be
heard, and affidavits to support statements of fact. Motions for
summary disposition must be served on the parties and the Secretary at
the same time that they are submitted to the presiding officer.
* * * * *
29. Section 2.1209 is revised to read as follows:
Sec. 2.1209 Findings of fact and conclusions of law.
Each party shall file written post-hearing proposed findings of
fact and conclusions of law on the contentions addressed in an oral
hearing under Sec. 2.1207 or a written hearing under Sec. 2.1208
within 30 days of the close of the hearing or at such other time as the
presiding officer directs. Proposed findings of fact and conclusions of
law must conform to the format requirements in Sec. 2.712(c).
30. In Sec. 2.1213, paragraph (f) is added to read as follows:
Sec. 2.1213 Application for a stay.
* * * * *
(f) Stays are not available on matters limited to whether a no
significant hazards consideration determination was proper in
proceedings on power reactor license amendments.
31. Section 2.1300 is revised to read as follows:
Sec. 2.1300 Scope of subpart M.
The provisions of this subpart, together with the generally
applicable intervention provisions in subpart C of this part, govern
all adjudicatory proceedings on an application for the direct or
indirect transfer of control of an NRC license when the transfer
requires prior approval of the NRC under the Commission's regulations,
governing statutes, or pursuant to a license condition. This subpart
provides the only mechanism for requesting hearings on license transfer
requests, unless contrary case specific orders are issued by the
Commission.
Sec. 2.1304 [Removed]
32. Section 2.1304 is removed.
33. In Sec. 2.1316, paragraph (c) is revised to read as follows:
Sec. 2.1316 Authority and role of NRC staff.
* * * * *
(c)(1) Within 15 days of the issuance of the order granting
requests for hearing/petitions to intervene and admitting contentions,
the NRC staff must notify the presiding officer and the parties whether
it desires to participate as a party, and identify the contentions on
which it wishes to participate as a party. If the NRC staff desires to
be a party thereafter, the NRC staff must notify the presiding officer
and the parties, and identify the contentions on which it wishes to
participate as a party,
[[Page 10804]]
and make the disclosures required by Sec. 2.336(b)(3) through (b)(5)
unless accompanied by an affidavit explaining why the disclosures
cannot be provided to the parties with the notice.
(2) Once the NRC staff chooses to participate as a party, it will
have all the rights and responsibilities of a party with respect to the
admitted contention/matter in controversy on which the staff chooses to
participate.
34. In Sec. 2.1403, the introductory text of paragraph (a) is
revised to read as follows:
Sec. 2.1403 Authority and role of the NRC staff.
(a) During the pendency of any hearing under this subpart,
consistent with the NRC staff's findings in its review of the
application or matter that is the subject of the hearing and as
authorized by law, the NRC staff is expected to promptly issue its
approval or denial of the application, or take other appropriate action
on the matter that is the subject of the hearing. When the NRC staff
takes its action, it must notify the presiding officer and the parties
to the proceeding of its action. That notice must include the NRC
staff's explanation why the public health and safety is protected and
why the action is in accord with the common defense and security
despite the pendency of the contested matter before the presiding
officer. The NRC staff's action on the matter is effective upon
issuance, except in matters involving:
* * * * *
35. In Sec. 2.1407, paragraphs (a)(1) and (a)(3) are revised to
read as follows:
Sec. 2.1407 Appeal and Commission review of initial decision.
(a)(1) Within 25 days after service of a written initial decision,
a party may file a written appeal seeking the Commission's review on
the grounds specified in paragraph (b) of this section. Unless
otherwise authorized by law, a party must file an appeal with the
Commission before seeking judicial review.
* * * * *
(3) Any other party to the proceeding may, within 25 days after
service of the appeal, file an answer supporting or opposing the
appeal. The answer may not be longer than 20 pages and should concisely
address the matters specified in paragraph (a)(2) of this section. The
appellant does not have a right to reply. Unless it directs additional
filings or oral arguments, the Commission will decide the appeal on the
basis of the filings permitted by this paragraph.
* * * * *
PART 51--ENVIRONMENTAL PROTECTION REGULATIONS FOR DOMESTIC
LICENSING AND RELATED REGULATORY FUNCTIONS
36. The authority citation for part 51 continues to read as
follows:
Authority: Sec. 161, 68 Stat. 948, as amended, sec. 1701, 106
Stat. 2951, 2952, 2953, (42 U.S.C. 2201, 2297f); secs. 201, as
amended, 202, 88 Stat. 1242, as amended, 1244 (42 U.S.C. 5841,
5842); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note). Subpart A
also issued under National Environmental Policy Act of 1969, secs.
102, 104, 105, 83 Stat. 853-854, as amended (42 U.S.C. 4332, 4334,
4335); and Pub. L. 95-604, Title II, 92 Stat. 3033-3041; and sec.
193, Pub. L. 101-575, 104 Stat. 2835 (42 U.S.C. 2243). Sections
51.20, 51.30, 51.60, 51.80. and 51.97 also issued under secs. 135,
141, Pub. L. 97-425, 96 Stat. 2232, 2241, and sec. 148, Pub. L. 100-
203, 101 Stat. 1330-223 (42 U.S.C. 10155, 10161, 10168). Section
51.22 also issued under sec. 274, 73 Stat. 688, as amended by 92
Stat. 3036-3038 (42 U.S.C. 2021) and under Nuclear Waste Policy Act
of 1982, sec. 121, 96 Stat. 2228 (42 U.S.C. 10141). Sections 51.43,
51.67, and 51.109 also under Nuclear Waste Policy Act of 1982, sec.
114(f), 96 Stat. 2216, as amended (42 U.S.C. 10134(f)).
37. In Sec. 51.4, the definition of NRC staff is revised to read
as follows:
Sec. 51.4 Definitions.
* * * * *
NRC staff means any NRC officer or employee or his/her authorized
representative, except a Commissioner, a member of a Commissioner's
immediate staff, an Atomic Safety and Licensing Board, a presiding
officer, an administrative judge, an administrative law judge, or any
other officer or employee of the Commission who performs adjudicatory
functions.
* * * * *
38. In Sec. 51.34, paragraph(b) is revised to read as follows:
Sec. 51.34 Preparation of finding of no significant impact.
* * * * *
(b) When a hearing is held on the proposed action under the
regulations in subpart G of part 2 of this chapter or when the action
can only be taken by the Commissioners acting as a collegial body, the
appropriate NRC staff director will prepare a proposed finding of no
significant impact, which may be subject to modification as a result of
review and decision as appropriate to the nature and scope of the
proceeding. In such cases, the presiding officer, or the Commission
acting as a collegial body, as appropriate, will issue the final
finding of no significant impact.
39. In Sec. 51.102, paragraph (c) is revised to read as follows:
Sec. 51.102 Requirement to provide a record of decision; preparation.
* * * * *
(c) When a hearing is held on the proposed action under the
regulations in part 2 of this chapter or when the action can only be
taken by the Commissioners acting as a collegial body, the initial
decision of the presiding officer or the final decision of the
Commissioners acting as a collegial body will constitute the record of
decision. An initial or final decision constituting the record of
decision will be distributed as provided in Sec. 51.93.
40. In Sec. 51.109, paragraph (f) is revised to read as follows:
Sec. 51.109 Public hearings in proceedings for issuance of materials
license with respect to a geologic repository.
* * * * *
(f) In making the determinations described in paragraph (e) of this
section, the environmental impact statement will be deemed modified to
the extent that findings and conclusions differ from those in the final
statement prepared by the Secretary of Energy, as it may have been
supplemented. The initial decision will be distributed to any persons
not otherwise entitled to receive it who responded to the request in
the notice of docketing, as described in Sec. 51.26(c). If the
Commission reaches conclusions different from those of the presiding
officer with respect to such matters, the final environmental impact
statement will be deemed modified to that extent and the decision will
be similarly distributed.
* * * * *
41. Section 51.125 is revised to read as follows:
Sec. 51.125 Responsible official.
The Executive Director for Operations shall be responsible for
overall review of NRC NEPA compliance, except for matters under the
jurisdiction of a presiding officer, administrative judge,
administrative law judge, Atomic Safety and Licensing Board, or the
Commission acting as a collegial body.
PART 54--REQUIREMENTS FOR RENEWAL OF OPERATING LICENSES FOR NUCLEAR
POWER PLANTS
42. The authority citation for part 54 continues to read as
follows:
Authority: Secs. 102, 103, 104, 161, 181, 182, 183, 186, 189, 68
Stat. 936, 937, 938, 948, 953, 954, 955, as amended, sec. 234, 83
Stat. 1244, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2201,
2232, 2233, 2236, 2239, 2282); secs. 201, 202, 206, 88 Stat. 1242,
1244, as amended (42 U.S.C. 5841, 5842). Section 54.17 also issued
under E.O. 12829, 3 CFR, 1993 Comp., p.570; E.O. 12958, as
[[Page 10805]]
amended, 3 CFR, 1995 Comp., p. 333; E.O. 12968, 3 CFR, 1995 Comp.,
p.391.
43. Section 54.27 is revised to read as follows:
Sec. 52.27 Hearings.
A notice of an opportunity for a hearing will be published in the
Federal Register in accordance with 10 CFR 2.105 and 2.309. In the
absence of a request for a hearing filed within 60 days by a person
whose interest may be affected, the Commission may issue a renewed
operating license or renewed combined license without a hearing upon a
30-day notice and publication in the Federal Register of its intent to
do so.
Dated at Rockville, Maryland, this 22nd day of February 2011.
For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 2011-4345 Filed 2-25-11; 8:45 am]
BILLING CODE 7590-01-P