[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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