[Federal Register Volume 78, Number 66 (Friday, April 5, 2013)]
[Proposed Rules]
[Pages 20498-20502]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-07960]


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NUCLEAR REGULATORY COMMISSION

10 CFR Part 2

[NRC-2013-0050]
RIN 3150-AJ24


Potential Changes to Interlocutory Appeals Process for 
Adjudicatory Decisions

AGENCY: Nuclear Regulatory Commission.

ACTION: Advance notice of proposed rulemaking.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is issuing this 
Advance Notice of Proposed Rulemaking (ANPR) to begin the process of 
potentially amending its regulations to change the interlocutory 
appeals process for certain adjudicatory decisions. The NRC seeks 
public comment on these potential changes to the interlocutory appeals 
process.

DATES: Submit comments by July 5, 2013. Comments received after this 
date will be considered if it is practical to do so, but the NRC is 
only able to ensure consideration of comments received on or before 
this date.

ADDRESSES: You may access information and comment submissions related 
to this ANPR, which the NRC possesses and is publicly available, by 
searching on http://www.regulations.gov under Docket ID NRC-2013-0050. 
You may submit comments by any of the following methods:
     Federal Rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC-2013-0050. Address 
questions about NRC dockets to Carol Gallagher; telephone: 301-492-
3668; email: [email protected].
     Email comments to: [email protected]. If you do 
not receive an automatic email reply confirming receipt, then contact 
us at 301-415-1677.
     Fax comments to: Secretary, U.S. Nuclear Regulatory 
Commission at 301-415-1101.
     Mail comments to: Secretary, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001, Attn: Rulemakings and 
Adjudications Staff.
     Hand deliver comments to: 11555 Rockville Pike, Rockville, 
Maryland 20852, between 7:30 a.m. and 4:15 p.m. (Eastern time) Federal 
workdays; telephone: 301-415-1677.
    For additional direction on accessing information and submitting 
comments, see ``Accessing Information and Submitting Comments'' in the 
SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: James Biggins, Office of the General 
Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; 
telephone: 301-415-6305; email: [email protected].

SUPPLEMENTARY INFORMATION:

I. Accessing Information and Submitting Comments

A. Accessing Information

    Please refer to Docket ID NRC-2013-0050 when contacting the NRC 
about the availability of information for this ANPR. You may access 
information related to this ANPR, which the NRC possesses and is 
publicly available, by the following methods:
     Federal Rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC-2013-0050.
     NRC's Agencywide Documents Access and Management System 
(ADAMS): You may access publicly available documents online in the NRC 
Library at http://www.nrc.gov/reading-rm/adams.html. To begin the 
search, select ``Begin Web-based ADAMS Search.'' For problems with 
ADAMS, please contact the NRC's Public Document Room (PDR) reference 
staff at 1-800-397-4209, 301-415-4737, or by email at 
[email protected]. The ADAMS accession number for each document 
referenced in this ANPR (if that document is available in ADAMS) is 
provided the first time that a document is referenced.
     NRC's PDR: You may examine and purchase copies of public 
documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 
Rockville Pike, Rockville, Maryland 20852.

B. Submitting Comments

    Please include Docket ID NRC-2013-0050 in the subject line of your 
comment submission, in order to ensure that the NRC is able to make 
your comment submission available to the public in this docket.
    The NRC cautions you not to include identifying or contact 
information that you do not want to be publicly disclosed in your 
comment submission. The NRC will post all comment submissions at http://www.regulations.gov and enter the comment submissions into ADAMS. The 
NRC does not routinely edit comment submissions to remove identifying 
or contact information.
    If you are requesting or aggregating comments from other persons 
for submission to the NRC, then you should inform those persons not to 
include identifying or contact information that they do not want to be 
publicly disclosed in their comment submissions. Your request should 
state that the NRC does not routinely edit comment submissions to 
remove such information before making the comment submissions available 
to the public or entering the comment submissions into ADAMS.

II. Additional Information

    The NRC is considering four options pertaining to the interlocutory 
review of rulings on requests for hearings or petitions to intervene 
under Sec.  2.311 of Title 10 of the Code of Federal

[[Page 20499]]

Regulations (10 CFR). At the NRC, an interlocutory appeal is a request 
for the Commission to consider an adjudicatory issue prior to the 
conclusion of the hearing process before the Atomic Safety and 
Licensing Board (Licensing Board). The NRC seeks public comments on the 
four options described in Section B, Options for Amending the 10 CFR 
2.311 Interlocutory Review Provision, of this document, as well as on 
its interlocutory appeals rules and process in general.

A. Interlocutory Review Under Current NRC Regulations

    The NRC regulations currently provide three avenues for 
interlocutory review in NRC adjudicatory hearings. First, 10 CFR 
2.341(f)(1) provides for interlocutory review of questions certified to 
the Commission under 10 CFR 2.319(l), or of rulings referred or issues 
certified to the Commission under 10 CFR 2.323(f). These questions or 
rulings may be certified to the Commission by the presiding officer in 
his or her discretion, or on the motion of a party requesting that the 
presiding officer exercise this discretion. When determining whether to 
certify such a question or ruling, the presiding officer must find, as 
a threshold matter that it raises significant and novel legal or policy 
issues, or the resolution of the issues would materially advance the 
orderly disposition of the proceeding. Party motions initiating this 
process must be made no later than 10 days after the occurrence or 
circumstance from which the motion arises.
    Second, 10 CFR 2.341(f)(2) allows a party to directly request 
interlocutory review of the Commission without referral or 
certification by the presiding officer. Such a request must be filed 
within 25 days after the decision or action at issue. The request must 
contain a summary of the decision or action at issue, a statement that 
the argument in the request was previously raised before the presiding 
officer, or why it was not, a statement why the decision or action is 
erroneous, and a statement why Commission review should be exercised. 
The Commission may grant this interlocutory review in its discretion 
if, the party requesting review demonstrates that the issue threatens 
the requesting party with immediate and serious irreparable impact, 
which could not be alleviated through a petition for review of the 
final decision, or the issue affects the basic structure of the 
proceeding in a pervasive or unusual manner.
    Third, 10 CFR 2.311 provides an opportunity to request 
interlocutory review for a limited subset of rulings--requests for 
hearings or petitions to intervene, selection of hearing procedures, 
and requests by potential parties for access to sensitive unclassified 
non-safeguards information or safeguards information. With respect to 
rulings on requests for hearings or petitions to intervene, the 
interlocutory appeal must be made within 25 days after the service of 
the order. The appeal is initiated by filing a notice of appeal and 
accompanying supporting brief. Unlike the other methods of 
interlocutory review, these appeals do not require the satisfaction of 
specific threshold requirements, but they are limited in scope to 
whether a hearing opportunity should have been granted or wholly 
denied. Because of this limitation, if at least one of the petitioner's 
contentions is admitted, meaning that the petitioner has been admitted 
as a party to the hearing process, then the petitioner may not appeal 
the denial of any of its other contentions under 10 CFR 2.311; the 
petitioner may appeal these individual contention admissibility 
determinations only pursuant to 10 CFR 2.341(f)(1) or (f)(2), or may 
appeal them pursuant to 10 CFR 2.341(b) after the Licensing Board has 
issued its final decision. Similarly, parties, such as the license 
applicant, can immediately appeal the admission of all of the 
petitioner's admitted contentions under 10 CFR 2.311 on the grounds 
that none of the contentions are admissible, and therefore that there 
should be no hearing. However, such parties cannot appeal under 10 CFR 
2.311 that some of the admitted contentions should not have been 
admitted; the appeal of individual contention admissibility 
determinations (but fewer than all contentions) may only be made under 
10 CFR 2.341(f)(1) or (f)(2) and subject to its threshold requirements. 
The result of the interlocutory appeal process under Sec.  2.311 is 
that the Commission determines whether or not a hearing opportunity 
should have been granted at all.
    In summary, three processes exist for interlocutory review in the 
current NRC regulations, each with its own threshold requirements: (1) 
Certified interlocutory reviews allow a party to request that the 
presiding officer certify an issue to the Commission. The threshold for 
Commission consideration is that the certified issue must raise 
significant and novel legal or policy issues, and the resolution of the 
issues would materially advance the orderly disposition of the 
proceeding; (2) Direct interlocutory reviews to the Commission under 
Sec.  2.341(f)(2). The threshold requirement for acceptance of the 
appeal is that the party must be threatened with immediate and serious 
irreparable impact, which could not be alleviated through a petition 
for review of the final decision, or the issue affects the basic 
structure of the proceeding in a pervasive or unusual manner; and (3) 
Interlocutory review under Sec.  2.311 that has no threshold 
requirements. However, the scope of such a review, with respect to 
requests for hearings or petitions to intervene, is limited to whether 
there is standing and at least one admissible contention so that the 
petitioner should be granted a hearing and made a party to a 
proceeding. Interlocutory review under 10 CFR 2.311 is not available 
regarding whether specific contentions should have been admitted or 
denied, but only regarding whether at least one contention should have 
been admitted or all contentions denied and, thus, admission to a 
hearing proceeding should be granted or denied.

B. Options for Amending the 10 CFR 2.311 Interlocutory Review Provision

    The NRC is considering four options with respect to the 
interlocutory review of rulings on requests for hearings or petitions 
to intervene: (1) Retaining the current rule without any change (status 
quo), which permits interlocutory appeals, without any threshold 
requirements, of rulings on requests for hearings or petitions to 
intervene regarding only whether the hearing or intervention should be 
granted or denied in its entirety; (2) Increasing the scope of 10 CFR 
2.311 beyond just whether the hearing or intervention should be granted 
or denied in its entirety to encompass the interlocutory review of each 
individual contention admissibility determination. All appeals would 
have to be made immediately following the issuance of the ruling by the 
presiding officer; (3) Increasing the scope of 10 CFR 2.311 to 
encompass the interlocutory review of each individual contention 
admissibility determination, except for the admission or denial of 
contentions grounded in the National Environmental Policy Act of 1969, 
as amended (NEPA). For decisions on environmental contentions partially 
admitting or partially denying a request or petition, the appeal of 
which would only be entertained either (a) after the issuance of a 
final Environmental Impact Statement (or other NEPA document) or, 
alternatively, (b) after a final decision in the proceeding (non-
interlocutory); and (4) Reducing the scope of 10 CFR 2.311 to include 
only interlocutory review of whether a request for hearing or petition 
to intervene was properly denied in its

[[Page 20500]]

entirety. Orders granting a hearing, but only admitting some 
contentions would not be immediately appealable by any party. In 
addition to these options, the NRC seeks comment on clarifying the 
interlocutory review process.
Option 1
    Option 1 is to retain the status quo. The current language of 10 
CFR 2.311 has been in place since 1972 (37 FR 28,710; December 29, 
1972). Section 2.311 makes immediately appealable, without threshold 
requirements, the granting or denial of a request for hearing or 
petition to intervene, but not the granting or denial of individual 
contentions. Therefore, a party whose request or petition has been 
granted by a finding of standing and the admission of at least one 
contention is not allowed to immediately appeal the order denying its 
other contentions under 10 CFR 2.311. Conversely, a party in opposition 
to the granted request or petition may argue on immediate appeal under 
10 CFR 2.311 only that none of the contentions should have been 
admitted and thus, the request or petition should have been wholly 
denied; it cannot argue that only some of the admitted contentions 
should not have been admitted. Interlocutory appeals of individual 
contention admissibility determinations not necessary for the granting 
or denial of a request or petition must be made according to the 
interlocutory review requirements of 10 CFR 2.341(f)(1) or (f)(2), 
respectively, or await the final decision of the Licensing Board on the 
admitted contentions. Unlike 10 CFR 2.311, these interlocutory review 
processes have specific threshold requirements.
    The arguable advantage of the current limited scope of 10 CFR 2.311 
is that it provides for immediate appeal, without threshold 
requirements, of the most crucial determination, which is whether a 
party is admitted to a proceeding, but imposes the threshold 
requirements for other interlocutory appeals on individual contention 
admissibility determinations that do not affect whether the party is 
admitted to the proceeding. Applying threshold requirements to these 
individual contention admissibility determinations may save the 
Commission from attending to matters that, by the end of the 
proceeding, prove to no longer be an issue. One disadvantage of the 
current rule is that if a petitioner appeals its denied contentions 
under Sec.  2.341(b) after the Licensing Board concludes the hearing 
process, the Commission could grant the appeal and remand the 
proceeding to the Licensing Board to consider a contention that was 
originally denied. This scenario re-starts the hearing process for the 
remanded issue and extends the length of the proceeding. Another 
arguable disadvantage of 10 CFR 2.311 as currently written is that it 
may encourage parties opposing the request or petition to appeal 
admission of all contentions, regardless of merit, in order to preserve 
their right to appeal individual contention admissibility 
determinations under the advantageous no-threshold standard of 10 CFR 
2.311. Conversely, it may prevent individual contentions, which should 
not have been admitted, to proceed in the hearing process, thereby 
using hearing resources unnecessarily.
Questions on Option 1
    1. Does the current language of 10 CFR 2.311 strike a fair balance 
between allowing, without threshold requirements, the early resolution 
of contention admissibility determinations and preserving resources by 
deferring appellate review of issues?
    2. Is it fair that the standard focuses on whether or not a hearing 
should be granted which results in an opposing party's ability to 
appeal the admission of all admitted contentions whereas the 
petitioner's ability to appeal is limited to the denial of all of its 
contentions?
    3. Will Option 1 result in time and resource savings to the parties 
compared to the other options? Consider whether there are time and 
resource savings resulting from entertaining only some 10 CFR 2.311 
appeals of contention admissibility determinations compared to the risk 
that the failure to resolve all contention admissibility determinations 
early in the proceeding will result in the Commission later finding a 
contention admissible and remanding the issue to the Licensing Board or 
later finding a contention inadmissible and invalidating the 
adjudication of a contention.
Option 2
    Option 2 is to consider amending 10 CFR 2.311(c) and (d) to allow 
any petitioner or party to appeal an order granting or denying in whole 
or in part a request for hearing or petition to intervene within 25 
days of the presiding officer's issuance of the order. This amendment 
would effectively allow all petitioners and parties to immediately 
appeal, without threshold requirements, rulings on the admissibility of 
any particular contention (including new or amended contentions filed 
after the deadline in 10 CFR 2.309(b)). This would be the only 
opportunity to challenge the ruling. If a petitioner or party failed to 
challenge the presiding officer's ruling within that 25-day time 
period, it would not be able to challenge the contention admissibility 
decision at the end of the proceeding.
    The arguable advantage of amending 10 CFR 2.311 in this manner is 
that it would allow for the early resolution of all contention 
admissibility determinations. This amendment would eliminate the 
possibility that, after a Licensing Board has issued its final order in 
a proceeding, the Commission, on appeal, will remand the proceeding to 
the Licensing Board for consideration of a previously denied contention 
that should have been admitted or that the Commission will find an 
admitted contention to be inadmissible and invalidate the adjudication 
of the contention in the proceeding. Additionally, since a party other 
than the petitioner could appeal the admission of individual petitioner 
contentions instead of the admission of all petitioner contentions, 
that party may no longer be incentivized to oppose all admitted 
contentions, including those individual contentions that it may not 
otherwise oppose, in order to preserve its right to appeal the 
admission of those individual contentions that it does indeed oppose. 
The argument against this approach is that the advantages of early 
resolution of contention admissibility determinations may be outweighed 
by the increased adjudicatory workload resulting from the ability of 
all parties to immediately appeal all contention admissibility 
determinations without threshold requirements. Additionally, this 
option would require the petitioners and other parties to devote their 
attention to matters that, under the current rules, the petitioners and 
parties would not have been asked to address because, in many cases, at 
the end of a proceeding, parties choose not to appeal decisions denying 
the admissibility of contentions or a settlement agreement may have 
obviated the need to address the admissibility question. Licensing 
Boards and parties may be hesitant to proceed with the hearing process 
while contention admissibility is being reviewed by the Commission. 
Currently, the Commission only periodically receives appeals of the 
denial of contentions following issuance of Licensing Boards' orders at 
the end of the hearing process. Option 2 could result in significant 
workload increases for the Commission if all contentions are likely to 
be appealed in each case.
Questions on Option 2
    1. Will the time and resource savings resulting from conducting a 
proceeding

[[Page 20501]]

only after interlocutory appellate review of the admissibility of the 
contentions outweigh the time and resources that must be devoted to 
this appellate review by the parties, Licensing Board, and the 
Commission?
    2. Will this change likely result in the immediate appeal of 
contention admissibility in most or all cases? Consider whether there 
would be any incentive for parties to not automatically challenge all 
Licensing Board orders from either perspective of admitting or denying 
contentions.
    3. Would the likely increase in the quantity of appeals result in a 
commensurate improvement in the efficiency of the adjudicatory process?
    4. Will the availability of a no-threshold appeal for all 
contention admissibility determinations incentivize petitioners and 
parties to appeal each contention admissibility determination 
regardless of merit?
Option 3
    Option 3 is to amend 10 CFR 2.311(c) and (d) to allow any 
petitioner or party to appeal an order granting or denying in whole or 
in part a request for hearing or petition to intervene within 25 days 
of the presiding officer's issuance of the order with the exception 
that, when a request or petition is granted in part, the admission or 
denial of individual environmental contentions cannot be appealed until 
(a) after the issuance of a final Environmental Impact Statement or, 
alternatively, until (b) after issuance of the Licensing Board's 
decision at the end of the hearing process. This alternative would 
effectively allow all petitioners and parties to immediately appeal, 
without threshold requirements, rulings on the admissibility of any 
particular contention (including new or amended contentions filed after 
the deadline in Sec.  2.309(b)), except for the denial or admission of 
environmental contentions when a request or petition is granted in 
part.
    The arguable advantages and disadvantages of amending 10 CFR 2.311 
to include all contention admissibility determinations under 
alternative b), are the same as discussed under Option 2. The arguable 
advantage of specifically excluding the denial or admission of 
environmental contentions from 10 CFR 2.311 interlocutory review when a 
request or petition is granted in part is to better align the timing of 
the review of environmental contentions with the requirements of NEPA. 
Unlike other contentions, which have to do with the application's 
satisfaction of NRC regulatory requirements, environmental contentions 
are concerned with the NRC staff's performance of environmental reviews 
related to major federal actions as required by NEPA. Generally, when 
contention admissibility is first determined in a proceeding, these NRC 
environmental review documents are not yet available. Therefore, at 
that time, environmental contention admissibility is determined based 
on an applicant's environmental report. If a request or petition were 
granted, but one or more of the requestor or petitioner environmental 
contentions were denied, an immediate appeal of the environmental 
contentions could potentially become obviated later in time as the 
content of the NRC staff's environmental document is drafted. For 
example, the NRC staff's environmental review document could fully 
address an issue raised by the admitted environmental contention. Thus, 
a number of unnecessary interlocutory appeals, and their associated 
resource and time commitments, may be avoided by excluding 
interlocutory appeals of individual environmental contentions from 10 
CFR 2.311 and waiting until after the issuance of the staff's 
environmental document. The arguable disadvantages of this timing 
scheme are that contentions which should have been denied continue in 
the process until the staff's environmental document is issued, or that 
denied contentions are later admitted by the Commission after the 
staff's environmental document has been prepared and issued, thus 
requiring additional staff review outside of the initial process. 
Additionally, discerning between environmental and non-environmental 
contentions would become an extra step in the review process.
Questions on Option 3
    1. Should contentions grounded in NEPA and related environmental 
statutes be treated differently than contentions grounded in the Atomic 
Energy Act of 1954, as amended (AEA), or other requirements, 
considering that NEPA and the AEA have different requirements?
    2. Would petitioners or other parties be prejudiced by treating 
environmental contentions differently than other contentions?
    3. Will the time and resource savings potentially resulting from 
advancing the appeal of individual contentions, other than 
environmental contentions, result in efficiencies to the hearing 
process?
Option 4
    Option 4 is to amend 10 CFR 2.311 to only allow for the 
interlocutory review, without threshold requirements, of a complete 
denial of a request for a hearing or petition to intervene. Neither the 
order admitting all contentions, nor the order admitting some and 
denying some individual contentions would be appealable under 10 CFR 
2.311 under this option. These issues would only be immediately 
appealable according to the interlocutory appeals processes of 10 CFR 
2.341(f)(1) or (f)(2), subject to their threshold requirements, or 
appealable upon the initial decision of the Licensing Board according 
to the appeals process of 10 CFR 2.341(b).
    The arguable advantage of this change is that it would remove the 
perceived incentive under the current rule for a party to appeal every 
granted contention, regardless of merit. This option would likely 
reduce the number of interlocutory appeals, and the resulting 
expenditure of time and resources to pursue those appeals. The apparent 
disadvantage would be the removal of the early determination as to the 
proper admission of some contentions. As previously discussed, without 
some immediate appellate review of the admission of contentions, the 
parties may expend significant time and resources only to later have 
the Commission find the contention to be inadmissible and invalidate 
the proceeding as it relates to consideration of those contentions. 
Additionally, this change would allow petitioners to appeal denials of 
requests and hearings under the no-threshold standard of 10 CFR 2.311, 
whereas other parties would have to appeal the granting of these 
requests or hearings under the standards of 10 CFR 2.341, all of which 
have threshold requirements that must be satisfied.
Questions on Option 4
    1. Will the inability to immediately appeal, without threshold 
requirements, rulings other than complete denials of hearing requests 
or petitions result in the unnecessary expenditure of time and 
resources dedicated to resolving a contention that is later determined 
by the Commission to be inadmissible?
    2. Because this option limits interlocutory appeals to situations 
where a petition is wholly denied, will it result in saved resources 
from reduced interlocutory appeals, or will it result in those appeals 
simply being deferred to the final Licensing Board decision, at which 
time the appeals will be filed?
    3. Are the potentially saved resources from limiting interlocutory 
appeals under this option balanced by the resources potentially spent 
on adjudicating contentions that should have been denied?

[[Page 20502]]

    4. Is it fair under this interlocutory appeal option to allow 
petitioners to appeal a complete denial with no threshold requirements, 
whereas other parties must appeal pursuant to Sec.  2.341, which has 
threshold requirements?
Question on Clarifying the Interlocutory Review Process
    In examining any of the potential options there is an additional 
question on which the agency invites comments. This question relates to 
a potential clarifying reorganization of the interlocutory appeal 
provisions rather than to change the substance of those requirements.
    1. Currently, the authority to seek interlocutory appeal and the 
filing requirements to file an appeal are covered in several different 
sections of the regulations including 10 CFR 2.311, 2.323, and 2.341. 
Should the provisions governing interlocutory appeals be separate or 
consolidated in one section in order to provide clarity and 
consistency?

    For the Nuclear Regulatory Commission.

    Dated at Rockville, Maryland, this 27th day of March 2013.
Margaret M. Doane,
General Counsel.
[FR Doc. 2013-07960 Filed 4-4-13; 8:45 am]
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