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Changes to Adjudicatory Process

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AGENCY:

Nuclear Regulatory Commission.

ACTION:

Final rule.

SUMMARY:

The Nuclear Regulatory Commission (NRC) is amending its regulations concerning its rules of practice to make the NRC's hearing process more effective and efficient. The final rule will fashion hearing procedures that are tailored to the differing types of licensing and regulatory activities the NRC conducts and will better focus the limited resources of involved parties and the NRC.

DATES:

This final rule is effective February 13, 2004. The rules of procedure in the final rule apply to proceedings noticed on or after the effective date, unless otherwise directed by the Commission.

Start Further Info

FOR FURTHER INFORMATION CONTACT:

Geary S. Mizuno, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone (301) 415-1639, e-mail GSM@nrc.gov.

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SUPPLEMENTARY INFORMATION:

Contents

I. Background.

A. Policy Statement.

B. Reexamination of NRC's Hearing Process.

C. Comments on Policy Statement.

D. Comments from Hearing Process Workshop.

II. Discussion of the Final Rule.

A. Resolution of Public Comments on Proposed Rule; Bases for Final Rule.

1. Overview of Public Comments on Proposed Rule.

2. Significant Comments and Issues, and Their Resolution in Final Rule.

(a) Overall Organization of Part 2.

(b) Commission Response to Eight General Questions in Proposed Rule.

(c) Introductory provisions.

(d) Subpart A.

(e) Subpart B

(f) Subpart C.

(g) Subpart G.

(h) Subpart I.

(i) Subpart J.

(j) Subpart K.

(k) Subpart L.

(l) Subpart M.

(m) Subpart N.

(n) Subpart O.

(o) Part 60.

B. Section-by-Section Analysis.

1. Implementation of Rule.

2. Introductory provisions—Sections 2.1-2.8.

3. Subpart A—Sections 2.100-2.111.

4. Subpart B—Sections 2.200-2.206.

5. Subpart C—Sections 2.300-2.348, 2.390.

6. Subpart G—Sections 2.700-2.713.

7. Subpart I.—Sections 2.900-2.913.

8. Subpart J.—Sections 2.1000-2.1027.

9. Subpart K.—Sections 2.1101-2.119.

10. Subpart L—Sections 2.1200-2.1213.

11. Subpart M.—Sections 2.1300-2.1331.

12. Subpart N—Sections 2.1400-2.1407.

13. Subpart O—Sections 2.1500-2.1509.

III. Availability of Documents.

IV. Voluntary Consensus Standards.

V. Environmental Impact: Categorical Exclusion.

VI. Paperwork Reduction Act Statement.

VII. Regulatory Analysis.

VIII. Regulatory Flexibility Certification.

IX. Backfit Analysis.

I. Background

Among the very first actions taken by the Nuclear Regulatory Commission (NRC) following its creation in 1975 was an affirmation of the fundamental importance it attributes to public participation in the Commission's adjudicatory processes. Public participation, the Commission said, “is a vital ingredient to the open and full consideration of licensing issues and in establishing public confidence in the sound discharge of the important duties which have been entrusted to us.” N. States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), CLI-75-1, 1 NRC 1, 2 (1975). However, the form and formality of the processes provided for public participation have long been debated, well before the NRC was established and well after the foregoing statement was made.

The Commission has taken a number of steps in recent years to reassess its processes to identify ways in which it can conduct its regulatory activities more effectively. This assessment has extended across the full range of the NRC's programs, from its oversight and inspection program to evaluate and assess licensee performance, to its internal program management activities. One of the cornerstones of the NRC's regulatory approach has always been ensuring that its review processes and decisionmaking are open, understandable, and accessible to all interested parties. Its processes for achieving this goal have been part of the reassessment as well. Recently, steps have been taken to expand the opportunities for stakeholder awareness and involvement in NRC policy and decisionmaking through greater use of public workshops in rulemaking, inviting stakeholder participation in Commission meetings, and more extensive use of public meetings with interested parties on a variety of safety and regulatory matters.

The Commission has had a longstanding concern that the adjudicatory (hearing) process in 10 CFR part 2, subpart G, associated with licensing and enforcement actions, is not as effective as it could be. Beginning with case-by-case actions in 1983, and with a final rule in 1989, the Commission took steps to move away from the trial-type, adversarial format to resolve technical disputes with respect to its materials license applications. Commission experience suggested that in most instances, the use of the full panoply of formal, trial-like adjudicatory procedures in subpart G is not essential to the development of an adequate hearing record; yet all too frequently their use resulted in protracted, costly proceedings. The Commission adopted more informal procedures with the goals of reducing the burden of litigation costs, and enhancing the role of the presiding officer as a technical fact finder by giving him or her the primary responsibility for controlling the development of the hearing record beyond the initial submissions of the parties. A significant portion of the NRC's proceedings in the past ten years has been conducted under these more informal procedures. Although the Commission's experience to date indicates that some of the original objectives have been achieved, there have also been some aspects of the more informal procedures that have continued to prolong proceedings without truly enhancing the decisionmaking process. Given the Commission's experience, and with the potential in the next few years for new proceedings to consider applications for new facilities, to renew reactor operating licenses, to reflect restructuring in the electric utility industry, and to license waste storage facilities, the Commission concluded it needs to reassess its hearing processes to identify improvements that will result in a better use of all participants' limited resources. To that end, the Commission initiated certain actions related to its hearing processes—development of a Policy Statement on the hearing process, and a reexamination of the NRC's hearing process and requirements under the Atomic Energy Act of 1954, as amended (AEA)—as a foundation for possible rule changes.

A. Policy Statement

In 1998, the Commission adopted a new Policy Statement that provides specific guidance for Licensing Boards Start Printed Page 2183and presiding officers on methods to use, when appropriate, for improving the management and timely completion of proceedings. Statement of Policy on the Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18 (63 FR 41872; Aug. 5, 1998). The Policy Statement is an extension of the Commission's Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452 (46 FR 28533; May 27, 1981), which provided guidance to the Atomic Safety and Licensing Boards (Boards) on methods to improve the timely conduct of licensing proceedings and ensure that hearings are fair and produce adequate records that support decisions made by the NRC.

Among other things, the 1998 Policy Statement urges presiding officers/Licensing Boards to establish schedules for deciding issues before them. It also reminds presiding officers/Licensing Boards of their authority to set schedules, resolve discovery disputes, and take other action required to regulate the course of the proceedings. Case management by the presiding officers and Licensing Boards is an essential element of a fair, efficient hearing process. The Policy Statement also provides that the Commission may set milestones for an individual proceeding. If a presiding officer/Licensing Board determines that it would miss any milestone set by the Commission by more than 30 days, it is to provide the Commission with a written explanation of the reasons for the delay.

The Policy Statement also sets forth the Commission's expectations of the parties in the proceeding. Parties are expected to adhere to the time frames set forth by the presiding officers/Licensing Boards. Petitioners are reminded, among other things, of their burden to set forth contentions that meet the standards of 10 CFR 2.714(b)(2) (§ 2.309(f) in this final rule), and that contentions are limited by the nature of the application and the regulations. This guidance is directed to management and control of adjudicatory proceedings under the existing Rules of Practice. The guidance did not address more basic changes to the hearing process itself.

B. Reexamination of NRC's Hearing Process

In late 1998, the NRC Office of the General Counsel (OGC) undertook a reexamination of the NRC's current adjudicatory practices as conducted under the AEA and the NRC's current regulations, as well as a review of the Administrative Procedure Act (APA) and the practices of other agencies and the federal courts, with a view to developing options for improving the NRC's hearing processes. This effort was documented in a Commission paper, SECY-99-006, January 8, 1999, that was made publicly available.

As part of the analysis of possible approaches, OGC reached the conclusion that, except for a very limited set of hearings—those associated with the licensing of uranium enrichment facilities—the AEA did not mandate the use of a “formal, on-the-record” hearing within the meaning of the APA, 5 U.S.C. 554, 556, and 557, and that the Commission enjoyed substantial latitude in devising suitable hearing processes that would accommodate the rights of participants. In contrast to informal hearings for which agencies have greater flexibility in shaping adjudicatory procedures, “on-the-record” hearings under the APA generally resemble adversarial trial-type proceedings with oral presentations by witnesses and cross-examination.

The key, statutory provision, Section 189.a. of the AEA, declares only that “a hearing” (or an opportunity for a hearing) is required for certain types of agency actions. It does not state that such hearings are to be on-the-record proceedings. Furthermore, the legislative history for the AEA provides no clear guidance whether Congress intended agency hearings to be formal, on-the-record hearings.[1] As a legal matter, where Congress provides for “a hearing,” and does not specify that the adjudicatory hearings are to be “on-the-record,” or conducted as an adjudication under 5 U.S.C. 554, 556 and 557 of the APA, it is presumed that informal hearings are sufficient. United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 757 (1972), citing Siegel v. AEC, 400 F.2d 778, 785 (D.C. Cir. 1968); United States v. Fla. E. Coast Ry. Co., 410 U.S. 224 (1973). Significantly, these Supreme Court decisions occurred more than fifteen years after the period where the Atomic Energy Commission (AEC) first enunciated its position on the hearing requirements in Section 189.a.

The AEC of the 1950s asserted that formal hearings were required by Section 189.a. At that time, the AEC saw benefits in a highly formal process, resembling a judicial trial, for deciding applications to construct and operate nuclear power plants. It was thought that the panoply of features attending a trial—parties, sworn testimony, and cross-examination—would lead to a more satisfactory resolution of the complex issues affecting the public health and safety and would build public confidence in the AEC's decisions and thus in the safety of nuclear power plants licensed by the AEC. One study concluded that the use of formal hearings developed in order to address concerns that the pressures of promotion by the AEC could have an undue influence on the AEC's assessment of safety issues. By use of an expanded hearing process, the Commission could more fully defend the objectivity of its licensing actions. See William H. Berman and Lee M. Hydeman, The Atomic Energy Commission and Regulating Nuclear Facilities (1961), reprinted in 2 Improving the AEC Regulatory Process, Joint Comm. on Atomic Energy, 87th Cong., at 488 (1st Sess. 1961). Thus, notwithstanding the lack of explicit language in the statute or clear direction in the legislative history for the 1954 AEA regarding the use of formal, on-the-record hearings, AEC took the official position that on-the-record hearings were not merely permissible under the AEA but required. AEC Regulatory Problems: Hearings before the Subcommittee on Legislation, Joint Committee on Atomic Energy, 87th Cong., at 60 (2d Sess. 1962) (Letter of AEC Commissioner Loren K. Olsen). However, as mentioned above, the AEC's determination in this regard was not informed by the subsequent Supreme Court decisions in Allegheny-Ludlum Steel Corp. and Florida East Coast Railway Co. The Commission believes, in light of the principles enunciated by the Supreme Court in these two decisions, that the better interpretation of Section 189.a. is that formal, on-the-record hearings are not required by that section.

However, it has been argued that two subsequent amendments to the AEA, both of which involve clauses beginning with the word “notwithstanding,” should be read as confirming Congress's understanding that on-the-record adjudications are required by Section 189.a. of the 1954 Act. The first occurred in 1962, when Congress amended the AEA to add a new Section 191, authorizing the use of three-member Licensing Boards rather than hearing examiners, “notwithstanding” certain provisions of the APA. Because those referenced APA provisions dealt with formal, on-the-record adjudication, the “notwithstanding” clause in the statute could be read (and by some, is read) to imply that, by 1962, Congress viewed the Atomic Energy Act as Start Printed Page 2184requiring on-the-record adjudication. The crux of the argument is that the “notwithstanding” clause would have been unnecessary if an on-the-record adjudication was not mandatory.

In 1978, “notwithstanding” made its second appearance. In that year, Congress enacted the Nuclear Non-Proliferation Act (NNPA), which provided among other things for the NRC to establish procedures for “such public hearings [on nuclear export licenses] as the Commission deems appropriate.” NNPA section 304, 42 U.S.C. 2155a(a). The statute said that this provision was the exclusive legal basis for any hearings on nuclear export licenses, adding: “[N]otwithstanding section 189a. of the 1954 Act, [this] shall not require the Commission to grant any person an on-the-record hearing in such a proceeding.” 42 U.S.C. 2155a(b). Again, the argument is that the “notwithstanding” clause would be unnecessary unless Congress thought on-the-record formal hearings would be called for by Section 189 of the AEA.

These two subsequent statutes do not explicitly declare the intent of the 1954 AEA, nor do they explicitly require the use of on-the-record procedures in agency proceedings—in fact, they do the opposite. Furthermore, the legislative history accompanying both statutes strongly suggests that rather than agreeing with the Commission's early interpretation of Section 189.a. of the 1954 AEA, the Congresses took the position that the Commission had latitude under the existing language of Section 189.a. to use informal hearing procedures.[2] Seen in this light, the most plausible explanation for the “notwithstanding” clauses, in the Commission's view, is that they were intended not as a means to overcome what were viewed as fatal legal impediments, but rather, to counter and eliminate potential legal objections to the use of informal hearing procedures that may be raised by the Commission. It would have been only prudent of the drafters to eliminate ambiguity on this point when enacting additional provisions, even if they had been convinced that the clauses were unnecessary, given the Commission's insistence that Section 189.a. required on-the-record adjudications.

In any event, the Commission believes that to focus on Congress's thought processes in 1962, when it enacted Section 191 of the AEA, and in 1978, when it passed the NNPA, runs the risk of losing sight of what any reviewing court interested in legislative intent would regard as the central question, which is what Congress intended in 1954, when it enacted Section 189.a. of the AEA. And, as discussed earlier, the Commission now believes that in 1954 Congress did not intend Section 189.a. hearings to be formal, on-the-record adjudications.

For many years, the NRC did not depart from the longstanding assumption that the AEA requires on-the-record hearings despite the fact that this assumption had never been reduced to a definitive holding. Also, consistent with its understanding of Section 189.a., in 1978 the NRC declared that the hearing it would hold on an application to construct and operate a nuclear waste repository for high-level waste (HLW) would be a formal hearing. In a final rule (46 FR 13971; Feb. 25, 1981) now codified at 10 CFR part 2, Subpart J, the Commission provided for a mandatory formal hearing at the construction authorization stage and for an opportunity for a formal hearing before authorizing receipt and possession of HLW at a geologic repository. Subsequently, Congress enacted the Nuclear Waste Policy Act of 1982, 42 U.S.C. 10101 et seq. That law includes no specific hearing requirements. Instead, it seems to contemplate, at Section 114, that the NRC will apply existing laws applicable to the construction and operation of nuclear facilities. In sum, there is no statutory requirement for a formal hearing on a HLW repository, but without a rule change, the NRC's regulations would require a formal hearing. In 1990, Congress also provided that for the licensing of a uranium enrichment facility, the NRC “shall conduct a single adjudicatory hearing on-the-record.” [3] This provision can be interpreted in one of two ways: either as one more reflection of Congress's understanding that formal adjudication was the norm in NRC facility licensing proceedings, or as the very opposite, i.e., as showing that Congress understood that because of the presumption against formal hearings, explicit statutory language would be needed to make proceedings for this type of facility “on-the-record,” as that term is used in the APA.

In the decades since passage of the AEA, debate over the value of on-the-record adjudication for the resolution of nuclear licensing issues, and indeed for resolving scientific issues generally, has continued. There are now many observers who are skeptical that the use of formal adjudication in NRC licensing cases is the appropriate means to settle a regulatory issue; that whatever validity there may have been to the arguments for formal adjudication from the 1950s to the 1970s, they no longer have merit; and that fewer formalized proceedings could mean not only greater efficiency, but also better decisions, with more meaningful public participation and greater public acceptance of the result. See, e.g., Improving Regulation of Safety at DOE Nuclear Facilities, Final Report of the Advisory Committee on External Regulation of DOE Nuclear Safety, at 39 (Dec. 1995).

However, because of the early interpretation that formal, on-the-record hearings under subpart G were required, as well as NRC's long-standing practice of conducting hearings on reactor licensing actions under subpart G, each time that NRC has explored ways of expanding the use of more informal hearing procedures, it has had to confront its own prior statements and actions on the subject. Even so, no court has rendered a definitive holding on the application of the APA's “on-the-record” hearing requirements to AEA proceedings. Indeed, while some court decisions reflected the agency's early assumption that “on-the-record” hearings were required, other decisions did not. Compare Union of Concerned Scientists v. NRC, 735 F.2d 1437, 1444 n.12 (DC Cir. 1984), cert. denied, 469 U.S. 1132 (1984) [UCS I] (“there is much to suggest that the Administrative Procedure Act's (APA) ‘on-the-record’ procedures * * * apply [to section 189]”) with Union of Concerned Scientists v. NRC, 920 F.2d 50, 53 n.3 (DC Cir. 1990) (“it is an open question whether Section 189(a)—which mandates only that a ‘hearing’ be held and does not provide that such hearing be held ‘on-the-record’—nonetheless requires the NRC to employ in a licensing hearing procedures designated by the [APA] for formal adjudications”). The commentary in these and other cases is essentially dicta—observations not essential to the court's decision. See also Siegel v. AEC, 400 F.2d 778, 785 (DC Cir. 1968)(deciding only permissibility of informal rulemaking procedures under section 189); Porter County Chapter of the Izaak Walton League v. NRC, 606 F.2d 1363, 1368 (DC Cir. 1979) (deciding only NRC's discretion to initiate enforcement proceedings subject to Section 189 hearing); City of West Chicago v. NRC, 701 F.2d 632, 642 (7th Cir. 1983) (deciding only permissibility of informal procedures in materials licensing adjudication). Start Printed Page 2185

In Chemical Waste Management v. EPA, 873 F.2d 1477, 1480 (DC Cir. 1989), the DC Circuit stated that while the presence of the words “on-the-record” is not absolutely essential in order to find that formal adjudicatory hearings are required, there must be, in the absence of those words or similar language, evidence of “exceptional circumstances” demonstrating that Congress intended to require the use of formal adjudicatory procedures. Although the court suggested, again in dicta, that Section 189.a of the AEA might be a case where “exceptional circumstances” dictate formal, on-the-record hearing requirements, that observation has its roots in a dictum in UCS I which suggests that in 1961 “the AEC specifically requested Congress to relieve it of its burden of ‘on-the-record’ adjudications under section 189(a)” and Congress did not do so. 735 F.2d at 1444 n.12. The opposite is more nearly correct: The AEC argued in favor of formal procedures and the Joint Committee on Atomic Energy advised that informal procedures were permissible. See H.R. Rep. No. 87-1966, at 6 (1962), quoted in Kerr McGee Corp., CLI-82-2, 15 NRC 232, 251 (1982). More recently, in Kelley v. Selin, 42 F.3d 1501, 1511-12 (6th Cir.), cert. denied, 515 U.S. 1159 (1995), the court emphasized the NRC's latitude to determine the nature of the “hearing” mandated by the AEA.

The Commission's approach to expanding the use of more informal hearing procedures has been cautious, taking place in slow, incremental steps. One such step came in 1982, when the Commission, in the West Chicago case, granted an informal hearing (i.e., written submissions only) on an amendment to a materials license. In doing so, it observed that the AEA did not specifically require on-the-record hearings, and it called the legislative history “unilluminating” as to Congress's intent in materials licensing cases. The Commission noted that while it held formal hearings in all reactor licensing cases, it had not stated explicitly whether it did so as a matter of discretion or of statutory requirement. In any event, it did not view the AEA as mandating an on-the-record hearing in every licensing case. This decision was upheld by a reviewing court. City of West Chicago v. NRC, 701 F.2d 632 (7th Cir. 1983). Subsequently, the NRC issued a new subpart L to part 2, setting forth procedures for holding informal proceedings on all materials license applications and amendments (54 FR 8276; Feb. 28, 1989). In Section 134 of the Nuclear Waste Policy Act of 1982, 42 U.S.C. 10154, Congress specified a set of hybrid procedures for licensing expansions of spent fuel storage capacity at reactor sites. The process called for written submissions, oral argument, and an adjudicatory hearing only after specific findings by the Commission. The Commission promulgated procedures—10 CFR part 2, subpart K (50 FR 41670; Oct. 15, 1985)—to implement this legislation.

The West Chicago court's finding that formal hearings were not required for materials licenses opened the door considerably wider for the argument that formal hearings are not necessarily required in reactor licensing cases. The provision of the AEA that establishes the basic statutory entitlement to a “hearing” does not distinguish between reactor licenses and materials licenses. The first significant move toward deformalization of reactor licensing cases came in 1989, when the NRC completed what a reviewing court described as a “bold and creative” effort to foster standardization of nuclear power plant designs, as well as the early resolution of key safety issues. This was the issuance of a new 10 CFR part 52, which provided for issuance of design certifications and “combined licenses” for construction and operation of nuclear power plants (54 FR 15386; Apr. 18, 1989). The rule provided that standard designs could be approved by rulemaking, with an opportunity for an informal hearing conducted by an Atomic Safety and Licensing Board (this would be a “paper” hearing, unless the Licensing Board requested the authority to conduct a “live”—that is, oral—hearing, and the Commission agreed). Subpart G formal hearings would be offered thereafter, before the issuance of the combined construction permit/operating license for a specific facility. When the facility was essentially complete and close to fuel loading and criticality, there would be an opportunity for members of the public to raise any concerns they might have about plant operation. These could fall into one of two categories: Either a claim that the facility as built did not meet the “acceptance criteria” specified in the original combined construction permit/operating license, or a claim that the acceptance criteria themselves (that is, the licensing requirements) were deficient. For claims in the former category, the Commission would determine whether to hold a hearing and whether it would be a formal or informal hearing. A request to modify the terms of a combined license would be handled as a request for action under 10 CFR 2.206.

Part 52 was promptly challenged after its promulgation. A panel of the U.S. Court of Appeals for the DC Circuit issued a decision that upheld some parts of the rule but set aside others, including the provisions governing the opportunities for a hearing after completion of construction and before operation. Nuclear Info. & Res. Serv. v. NRC, 918 F.2d 189 (DC Cir. 1990), vacated & rehearing en banc granted, 928 F.2d 465 (DC Cir. 1991). However, the decision was later vacated by the entire DC Circuit, sitting en banc. Nuclear Information and Resource Service v. NRC, 969 F.2d 1169 (DC Cir. 1992). In its brief to the full court, the NRC argued unequivocally that AEA's hearing requirement for nuclear power plant licensing did not necessarily mean a formal hearing.

The full court upheld part 52 in its entirety. However, on the question of whether hearings must be formal, it reserved judgment on the grounds that the NRC's argument that informal hearings were permissible had not been made in the rulemaking or before the original panel. 969 F.2d at 1180.

The Commission has taken two more steps to further stake out its position that the AEA does not require formal hearings. The first was a rulemaking implementing the Equal Access to Justice Act (EAJA), 5 U.S.C. 504. This statute authorizes the recovery of attorneys' fees by certain “prevailing” parties in “adversary adjudications.” The term “adversary adjudication” is defined in 5 U.S.C. 504(b)(1)(C) to generally mean, for purposes of the EAJA, adjudications conducted under 5 U.S.C. 554, the section of the APA applicable to adjudications required by statute to be determined on-the-record after the opportunity for an agency hearing. “Adversary adjudications” do not include adjudications to consider the grant or renewal of a license.

The NRC decided to authorize the payment of attorneys' fees only for adjudications under the Program Fraud Civil Remedies Act, which by law must be on-the-record, on the grounds that no other NRC adjudications (other than those for the licensing of uranium enrichment facilities under Section 193) must by law be on-the-record. 10 CFR part 12 (59 FR 23121; May 5, 1994). To date, no lawsuit has been filed challenging this determination. The second and more significant step was the recent promulgation of subpart M to part 2 (63 FR 66730; Dec. 3, 1998), to cover transfers of licenses, including those for power reactors. Here again, the rule did not provide for formal proceedings. Start Printed Page 2186

In a Staff Requirements Memorandum issued on July 22, 1999 (which is available to the public), the Commission directed OGC to develop a proposed rulemaking. The Commission also indicated that it would pursue legislation to confirm NRC's discretion to structure its procedures as it deemed necessary to carry out its responsibilities. The Commission further directed that the views of external stakeholders be obtained. In response, on October 26-27, 1999, OGC conducted a facilitated public meeting with stakeholders representing the industry, citizen groups, another Federal agency, academia, and the NRC's Atomic Safety and Licensing Board Panel. The transcribed views of all participants are publicly available. In addition to the broad issue of the degree of formality or informality of the hearing process, the issues addressed at this meeting encompassed matters such as requirements for standing, contentions, discovery, cross-examination, summary disposition, hearing schedules and time limits, the role of the presiding officer, and the number of different hearing “tracks” that might be appropriate, all having been raised directly or indirectly in SECY-99-006. The comments at this meeting are described below and have been considered in this rulemaking.

C. Comments on Policy Statement

The NRC received a number of public comments on its 1998 Policy Statement on the conduct of adjudicatory proceedings (63 FR 41872; Aug. 5, 1998). The NRC is taking this opportunity to address those comments as part of this final rulemaking.

Eleven sets of comments were received on the Policy Statement. Some of the comments came from persons who represented the views of several other named persons. Two of the sets of comments opposed the Policy Statement; the remaining nine generally supported the Policy Statement.

Comment. The Policy Statement and its suggestions for expedited proceedings that allow delays only in extreme and unavoidable circumstances is unfair, inconsistent with due process, violates the Administrative Procedure Act (APA), and emphasizes licensing over health and safety concerns. Expedited schedules are not necessary for nuclear power plant license renewal proceedings. Expedited schedules may not be reasonable for hearings with complex issues. An expedited hearing schedule is harmful to intervener groups who need more time due to their lack of funding.

Response. The NRC is unaware of any judicial decision that holds that the type of hearing procedures being proposed in the Policy Statement guidance violates due process or the APA. In fact, the Policy Statement recognizes that there is a need to balance efforts to avoid delay with procedures that will ensure fair and reasonable time frames for taking action in the adjudication. The Commission believes that the guidance in the Policy Statement strikes a proper balance among all these considerations. The Commission also believes that providing more effective hearing processes will result in a better use of all participants' limited resources.

Comment. Contrary to statements made in the Policy Statement, Licensing Boards do not have total discretion to set schedules in proceedings. For example, Licensing Boards must allow contentions to be filed anytime up to 15 days before the prehearing conference, and a board may not shorten this time.

Response. Under the Commission's existing procedures, as carried forward into this final rule, § 2.319 of the final rule (formerly § 2.718) provides the presiding officer the power to regulate the course of the proceeding. In addition, under § 2.307 of the final rule (formerly § 2.711) a presiding officer may shorten or lengthen the time required for filings for good cause. This provision expressly allows a presiding officer to set deadlines for filings, such as the filing of contentions.

Comment. Multiple Licensing Boards should not be used because it could be too burdensome for intervener groups with limited resources.

Response. The Commission recognizes that, in some instances, the use of multiple Licensing Boards to address multiple separate issues in a single proceeding can place a burden on all parties. For that reason, the NRC is careful to consider and account for the circumstances of each case and to ensure that the use of multiple boards will not prejudice any party. However, it is important to have flexibility to use multiple boards where it will not prejudice any party, as the use of more than one board can allow the effective litigation and resolution of a number of separate issues resulting in a more timely completion of the record and decision for the whole case.

Comment. The guidelines set forth in the Policy Statement should be codified through a rulemaking.

Response. The Commission is codifying appropriate portions of the Policy Statement in this rulemaking. Because the Policy Statement deals primarily with case management and control, it may not be appropriate to convert everything in the Policy Statement to hard and fast requirements. The Commission believes that it is important to retain flexibility to manage proceedings as the situation warrants.

Comment. A Licensing Board should be able to raise any safety issue that is material to health and safety, regardless of whether it is a substantial issue.

Response. If a presiding officer (including a Licensing Board) determines in the course of a hearing that a safety issue exists that has not been raised by a party, it may refer the matter to the Commission with a recommendation on how the issue should be addressed under § 2.340(a) of the final rule. Some issues raised by a presiding officer sua sponte may be addressed appropriately through adjudications, while others may not. In fact, the Commission has a process for considering the presiding officer's recommendation on sua sponte issues and that process can result in the issues being considered in the adjudication or being referred to the NRC staff for review and resolution without litigation. This final rule does not represent a significant departure from its longstanding regulation, 10 CFR 2.760a (now codified in this final rule at § 2.340).

Comment. The Commission's suggestion that the Licensing Boards limit the use of summary disposition motions goes too far.

Response. There are appropriate times for filing summary disposition motions. There may be times in the proceeding where these motions should not be entertained because consideration of the motions would unduly delay or complicate proceedings by distracting responding parties from addressing other pending issues or distracting other parties and the presiding officer from their preparation for a scheduled hearing. Moreover, there may be situations in which the time required to consider summary disposition motions and responses and to issue a ruling on these motions will substantially exceed the time needed to complete the hearing and record on the issues. The presiding officer (including a Licensing Board) is in a good position to determine when the use of summary disposition would be appropriate and would not delay the ultimate resolution of issues and the Commission will provide presiding officers the flexibility to make that determination in most proceedings. To further ensure that summary disposition motions are filed and ruled upon in a timely manner that does not detract from preparation for the oral hearing, the Commission is adopting in § 2.710 of the final rule additional requirements on the timing, consideration, and Start Printed Page 2187decisions on summary disposition motions.

Comment. The limitation of discovery on the NRC staff until after the Safety Evaluation Report (SER) and final Environmental Impact Statement (EIS) is overly broad and could delay the proceeding.

Response. The most fruitful time for discovery of NRC staff review documents is after the staff has developed its position. Subjecting the NRC staff to extensive discovery early in the process will often require the staff to divert its resources from completing its review. In addition, early discovery before the NRC staff has finalized the major part of its reviews may present a misleading impression of staff views. Finally, a focus on discovery against the NRC staff diverts the focus from the real issues in a licensing proceeding, which should be the adequacy of the applicant's/licensee's proposal. Nevertheless, the Commission recognizes the importance of timely completion of the NRC staff's reviews and the staff is making a concerted effort at rigorous planning and scheduling of staff reviews. In this regard, the NRC staff has continued to refine and complete its standard review plans and its review guidance, and has moved to a more performance-goal oriented approach in an effort to improve the timeliness of its reviews. Steering and oversight committees are sometimes formed to direct the course of major technical review efforts and detailed milestone schedules are developed and tracked. NRC managers and staff are held accountable for these schedules. The NRC will continue with these efforts to improve the timeliness of licensing reviews.

Comment. The hearing should not be delayed until after the SER and the final EIS are issued as it could delay the proceedings.

Response. In proceedings where the NRC staff is a party, the staff may not be in a position to provide testimony or take a final position on some issues until these documents have been completed. This may be the case in particular with regard to the NRC staff's environmental evaluation, less so with regard to the staff's safety evaluation. In many cases, it could be unproductive and cumbersome to have a two-pronged hearing with one part of the hearing being conducted before issuance of the NRC staff documents and a second hearing after issuance of the documents.

Nonetheless, the Commission recognizes that where the NRC staff is a party, the staff could prepare testimony and evidence, and take a final position on contested matters if its safety review has been completed in areas relevant to the contested matters. The Commission also recognizes that the current regulations governing submission of the SER and/or EIS are not clear and could be misleading. To address these matters, the Commission is taking a number of actions which are described below in II.A.2.(f) in the discussion of § 2.337.

Comment. Licensing Boards should rule on standing before the submission of contentions.

Response. The Commission expects that standing issues would be among the first issues addressed by a presiding officer in an adjudication, but that does not dictate that the submission of contentions should be delayed. The Commission also expects that concrete issues of concern to the public would be raised on the basis of the application or the proposal for NRC action and can be identified at the same time the petition addresses the matter of standing.

Comment. The Commission should apply the Federal Rules of Evidence with respect to scientific testimony.

Response. Neither this final rule nor the superseded provisions of part 2 contain a special provision for scientific testimony. Scientific testimony can be tested and evaluated in the same manner as other evidence presented at a hearing. Although the Commission has not required the application of the Federal Rules of Evidence in NRC adjudicatory proceedings, presiding officers and Licensing Boards have always looked to the Federal Rules for guidance in appropriate circumstances. The Commission continues to believe that greater informality and flexibility in the presentation of evidence in hearings, rather than the inflexible use of the formal rules of evidence imposed in the Federal courts, can result in more effective and efficient issue resolution.

Comment. The Commission should place limitations on cross-examination.

Response. The final rule does place limitations on cross-examination for the less formal procedures. Under these procedures, the presiding officer may question witnesses who testify at the hearing, but parties normally may not do so. However, parties may submit to the presiding officer written suggestions for questions to be asked. The final rule also allows motions to the presiding officer to allow cross-examination by the parties where the party believes this would be necessary to develop an adequate record. As a general matter, the presiding officer may limit and control cross-examination in appropriate circumstances, under § 2.333 of the final rule. Among other things, the final rule requires the filing and use of cross-examination plans whenever a party cross-examines witnesses.

Comment. The Commission should be actively involved in overseeing proceedings and there should be expedited interlocutory review for novel legal or policy issues.

Response. Providing for a Commission ruling on significant issues before the hearing is completed can focus the issues to be addressed in a hearing, and the final rule provides for presiding officer certification of novel legal or policy issues to the Commission. However, the Commission believes that the additional delay necessarily associated with interlocutory appeals by parties outweighs any potential reduction in hearing time that may come about through a Commission decision in such an appeal, unless a party seeking interlocutory review can also demonstrate that it would be threatened with immediate and serious irreparable harm, or if the basic structure of the proceeding would be affected in a pervasive or unusual manner. Accordingly, the Commission has decided that it should not depart from existing practice by permitting interlocutory appeals by parties based solely on the existence of novel legal or policy issues.

Comment. The Commission should actively review the performance of Licensing Boards and ensure that boards make prompt decisions.

Response. The Commission has been carefully monitoring all adjudicatory proceedings to ensure that they are being appropriately managed to avoid unnecessary delay. The Commission, through its Policy Statements and case-specific orders, has been encouraging presiding officers (including Licensing Boards) to issue timely decisions consistent with presiding officers' independent decisionmaking functions. Section 2.334(b) of the final rule explicitly addresses case management and would require the presiding officers to notify the Commission when there is non-trivial delay in completion of the proceeding. The Commission wishes to emphasize, however, that the Commission's oversight of presiding officers with respect to case management is not intended to intrude on the independence of presiding officers in discharging their decisionmaking responsibilities.

D. Comments From Hearing Process Workshop

The October 26-27, 1999, hearing process workshop involved participants from the nuclear industry, states, citizen Start Printed Page 2188groups, the academic community, administrative judge community, and the NRC. Transcripts from the workshop are available in NRC's Public Document Room, and are available for download on the NRC Web Page, at http://ruleforum.llnl.gov/​cgi-bin/​library?​source=​*&​library=​CAP_​PRULE_​lib&​file=​*. The major comments and the Commission's responses follow.

Comment. In general, the public citizen group participants questioned whether there was a need to make any changes to the current hearing procedures. They also voiced concerns about any limitations on current discovery and cross-examination. Industry representatives advocated changes to the hearing process, which they viewed as becoming increasingly and needlessly time consuming.

Response. The Commission believes that there is a need to take some action to improve the management of the adjudicatory process to avoid needless delay and unproductive litigation. Using less formal hearing processes with simplified procedures for most types of proceedings along with a requirement for well-supported specific contentions in all cases can improve NRC hearings, limit unproductive litigation, and at the same time ease the burdens in hearing preparation and participation for all participants.

In the final rule, well-supported, specific contentions will be required in all proceedings, just as they are now required under the Commission's formal hearing procedures. See § 2.309(f). Petitioners generally have been able to meet the current specific contention requirements and the Commission would not expect the application of those requirements to informal proceedings to adversely affect public participation. Indeed, by focusing litigation efforts on specific and well-defined issues, all parties will be relieved of the burden of having to develop evidence and prepare a case to address possibly wide-ranging, vague, undefined issues.

Under the final rule, early document disclosure and witness identification will be required of all parties (except the NRC staff) in every case. See §§ 2.336, 2.704. In proceedings using hearing procedures other than Subparts G and J, no other discovery would be permitted. This approach should reduce the burden on public participants because petitioners would be given access to pertinent information without the need to file formal discovery requests, and would not be burdened with responding to formal discovery requests. In Subparts G, L, and N, the NRC staff is required to prepare a hearing file. In Subpart J proceedings, the NRC staff is required to maintain an electronic docket, and all potential parties are required to participate in the Licensing Support Network (LSN), which will afford access to all relevant documents. In sum, the Commission believes that in all hearing tracks the parties will have sufficient information available to prepare their cases.

Under the final rule, cross-examination is retained for Subpart G hearings. By contrast, in informal hearings, only the presiding officer will question witnesses. Nevertheless, the informal procedures allow the parties to suggest questions for the presiding officer to ask, and they permit motions to allow the parties themselves to cross-examine witnesses. The presiding officer may grant the motion if he or she believes that such cross-examination is necessary to develop an adequate record for decision. This should ensure that there is questioning of witnesses sufficient to develop an adequate record. However, the Commission expects that the use of cross-examination in Subparts L, M or N proceedings will be rare.

Comment. Some participants raised concerns regarding case management practices by the Licensing Boards. One concern was the perceived lack of control by presiding officers in some informal and formal proceedings. According to these participants, in informal proceedings, presiding officers too often allow pleadings to be amended or allow an unlimited number of reply briefs. Nuclear industry participants stated that discovery in formal proceedings takes too long, that the NRC staff requires too much time to issue a Final Environmental Impact Statement (FES) and Safety Evaluation Report (SER), and that the presiding officer/board takes too long to issue an initial decision.

Response. Strong case management is an integral part of an efficient and effective hearing process. The Commission expects presiding officers/boards to manage all adjudications carefully and attentively. Tools to be used to this end are reflected in the final rule. The Commission has modified the intervention requirements in Subpart L to require the submission of specific, well-supported contentions as is currently required for hearings held under Subpart G. This should result in hearings that focus on well-defined issues and obviate the need to receive evidence of questionable relevance. The Commission also modified the less formal hearing procedures in Part 2 in a manner that should reduce the amount of motion practice over what hearing procedures to use. As noted earlier, the Commission is also taking a number of actions (described below in II.A.2.(f) in the discussion of § 2.337) to ensure timely preparation of NRC staff testimony and evidence, and to clarify the NRC documents which must be admitted into evidence in different proceedings conducted under Part 2.

Comment: One of the attributes of the current formal process is cross-examination of witnesses. Nuclear industry participants urged that cross-examination not be used as it is often not an effective or efficient way to determine the validity of any particular matter. However, citizen group participants argued that cross-examination is effective and oppose any elimination of this tool. Some nuclear industry participants argued that cross-examination should only be an optional tool that can be used if it is determined that it is necessary. These representatives also asserted that cross-examination must be used in enforcement hearings. Other licensee representatives suggested that certain proceedings such as those involving license applications for activities posing low risk from a public health and safety perspective, should not use cross-examination. Citizen group participants pointed out that there may not be agreement as to which proceedings involve “low risk” activities.

Response. The final rule provides for cross-examination by the parties in proceedings that warrant the use of Subpart G hearing procedures. Other NRC proceedings will utilize less formal procedures that do not include cross-examination by the parties unless ordered by the presiding officer or the Commission in a particular case. See §§ 2.1207, 2.1204(b), 2.1405, 2.1402(c). Nonetheless, these latter proceedings involve questioning of witnesses by the presiding officer in response to lines of questioning proposed by parties, and cross-examination by the parties themselves only where the presiding officer determines that it is necessary to develop an adequate record for decision. The Commission believes that this approach strikes an appropriate balance in the use of cross-examination, and is consistent with the requirements of the Administrative Procedure Act (APA), which does not require cross-examination for on-the-record proceedings unless necessary for a “fair and true disclosure of the facts.” 5 U.S.C. 556(d).

Comment. Another attribute of the current formal proceedings is discovery. The representatives of citizen groups view discovery as essential because they do not have access to all of the Start Printed Page 2189information that licensees and the NRC staff do and they perceive this as a disadvantage early in the proceedings. Citizen group representatives also noted ready access to information can be frustrated by the fact that the application may be incomplete and is supplemented through the NRC staff's requests for additional information (RAI). In response to the citizen group representatives' concerns, the nuclear industry representatives suggested that interested parties should attend staff-applicant meetings that take place before the submission of an application. Citizen group representatives suggested that interested individuals should be permitted to participate in these meetings instead of just observing. One option suggested by the administrative judge participant was that the NRC model its discovery rules on Rule 26 of the Federal Rules of Civil Procedure.

Response. The final rule provides that in all adjudicatory proceedings (whether formal or informal), the parties must exchange relevant documents and other information at the beginning of the proceeding. See §§ 2.336, 2.704. Parties other than NRC staff are also required to exchange the identity of expert witnesses,[4] as well as existing reports of their opinions. The “mandatory disclosure” concept is expanded in subpart J by requiring the NRC and potential parties to disclose pertinent documents by participating in the “Licensing Support Network” (LSN) before an application is filed. In addition, under subparts G, L, and N the NRC staff is required to prepare, make available, and update a “hearing file” consisting of the application and any amendments, NRC safety and environmental reports relating to the application, and any correspondence between the NRC and the applicant that is relevant to the application. A parallel concept is provided in subpart J by the requirement for the NRC staff to maintain an “electronic docket.” Thus, the mandatory disclosure requirement in subpart C, the hearing file provision in subparts G, L, and N the requirement for an LSN and “electronic docket” in subpart J, go well beyond the “discovery” provisions for full, on-the-record adjudicatory hearings under the APA. See 5 U.S.C. 554 and 556(c). Moreover, formal discovery tools, e.g., interrogatories and depositions, remain for proceedings conducted under subparts G and J. See, e.g., §§ 2.702 through 2.709 (subpart G), § 2.1000 (subpart J).

The Commission also encourages members of the public (including States, local governmental bodies, and Federally-recognized Indian Tribes) to attend meetings between the NRC staff and the applicant, both before and after a license application is submitted, and to review NRC staff-prepared meeting summaries. These meetings are noticed in advance and are, with limited exceptions to protect proprietary, sensitive financial and safeguards information, open to all to observe. If practical, teleconferencing access to meetings where the meeting site is not easily accessible to interested persons is provided upon request. Depending upon the nature of the meeting, the public is provided an opportunity to either ask questions of the NRC staff, or participate in a discussion of regulatory issues at designated points in the meeting. Meeting summaries prepared by the NRC staff are placed in the docket file for the application and are available through the NRC Web site and in the Public Document Room.[5] Public attendance at these meetings and review of the meeting summaries should provide individuals or groups early access to information so that they may participate more effectively in the hearing process. This may also reduce the number of issues that must be adjudicated.

In sum, the Commission believes that its current policy on public meetings, broad public access to information, mandatory disclosures under Subpart C, the requirement for a hearing file under Subparts G, L and N, the requirement for an LSN and “electronic docket” under Subpart J, and the availability of the full panoply of formal, trial-like discovery under Subpart G, together constitute a system for discovery which is tailored to the regulatory and licensing matters which must be resolved in NRC adjudicatory proceedings.

Comment. The representatives of citizen groups and local governments argued that the rules for standing should be liberalized. These participants noted that NRC proceedings require much time and money and are not undertaken lightly.

Response. Members of the public who have an interest that will be affected by a proposed action should be readily able to establish their standing under the standards in the final rule. At the same time, the Commission recognizes that there may be instances where persons who do not have a direct interest and cannot demonstrate standing nevertheless are able to make a substantial contribution to the development of the record in the proceeding. Accordingly, the Commission is codifying the six criteria for discretionary intervention which were first articulated in Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 617 (1976): (1) The extent to which the requestor's/petitioner's participation may reasonably be expected to assist in developing a sound record; (2) the nature and extent of the requestor's/petitioner's property, financial or other interests in the proceeding; (3) the possible effect of any decision or order that may be issued in the proceeding on the requestor's/petitioner's interests; (4) the availability of other means for protecting the interests of the requestor/petitioner; (5) the extent to which the requestor's/petitioner's interests will be represented by existing parties; and (6) the extent to which the requestor's/petitioner's participation will inappropriately broaden the issues or delay the proceeding. See § 2.309(e). Discretionary intervention, however, will not be allowed unless at least one other petitioner has established standing and at least one admissible contention.

Comment. Citizen group representatives stated that the NRC should return to its pre-1989 contention standards. Some of these participants asserted that an intervenor, under current practice, often has to prove its case in order to have a contention admitted. These participants also believe that the current contention standard has a chilling effect on citizen group participation. The citizen group representatives also stated that they had difficulty meeting the current contention standard because they lacked information about the application. In addition, the NRC staff practice of issuing requests for information (RAIs) for a purportedly incomplete application is said to place additional burdens on intervenors to continually support their contentions on a changing application.

Response. The NRC believes that the contention standard in § 2.309(f) is appropriate. The threshold standard is necessary to ensure that hearings cover only genuine and pertinent issues of Start Printed Page 2190concern and that the issues are framed and supported concisely enough at the outset to ensure that the proceedings are effective and focused on real, concrete issues. The contention standard has been in effect for more than ten years and has been effective in focusing litigation on real issues. The contention standard does not contemplate a determination of the merits of a proffered contention. Ample information is provided in the application and related documents to allow the formulation and support of real, concrete issues.

Comment. All citizen group participants stated that there is a need for intervenor funding. These participants argued that if the intervenors had access to resources for participation, there could be fewer delays in the proceeding and they could better assist the NRC in reaching the correct result. One participant noted that legislation prohibits the NRC from providing intervenor funding.

Response. Congress, in Section 502 of the Energy and Water Development Appropriations Act for FY 1993, has barred the use of appropriated monies to pay the expenses of, or otherwise compensate, parties intervening in NRC adjudicatory proceedings. Public Law 102-377, Title V, section 502, 106 Stat. 1342 (1992) (codified as amended at 5 U.S.C. 504). Therefore, the final rule does not provide for assistance to intervenors.

II. Discussion of the Final Rule

A. Resolution of Public Comments on Proposed Rule; Bases for Final Rule

1. Overview of Public Comments on Proposed Rule

The public comment period for the proposed rule closed on September 14, 2001.[6] As of January 8, 2002, the NRC had received a total of 1,431[7] public comments on the proposed rule from individuals, citizen groups and the industry. In total, 1,422 comments generally opposed the proposed rulemaking, while nine (9) comments favored NRC's efforts. Of the 1,431 comments received, twenty-two (22) were substantive, with fifteen (15) opposing and seven (7) in support of the proposed rule. The vast majority of the 1,422 comments opposing the rule were postcards submitted by private citizens. Of the fifteen (15) substantive comments opposing the rule, eight (8) were from citizen groups, including the Nuclear Information and Resource Service (NIRS), Public Citizen—Critical Mass Energy and Environment Program, the Massachusetts Citizens for Safe Energy, Ohio Citizens for Responsible Energy (OCRE), and the Project on Government Oversight. The National Whistleblower Center and the Committee for Safety at Plant Zion filed a joint comment. A collection of seventy-six (76) citizen groups, from the Alliance For a Clean Environment to the Women's International League for Peace and Freedom/Tucson, filed a joint comment by their representative (Jonathan Block). The remaining substantive comments opposing the rule were from individuals, including several unaffiliated individuals (Phillip Greenberg, Carlo Popolizio, and Kurt Wilner), a self-described pro se petitioner (Sarah M. Fields), and a political science professor (Kenneth A. Dahlberg). The seven (7) substantive comments supporting the proposed rulemaking were provided by a group representing the nuclear industry (Nuclear Energy Institute (NEI)), three (3) law firms representing three (3) groups of utilities (Morgan, Lewis &Bockius; Shaw Pittman; and Winston & Strawn), three (3) utilities (Florida Power and Light; and Virginia Electric Power Co. jointly with Dominion Nuclear Connecticut), and the National Mining Association (NMA).

2. Significant Comments and Issues, and Their Resolution in Final Rule

After consideration of the public comments received on the proposed rule, as well as public comments received on the 1998 Policy Statement and in the hearing process workshop, the Commission has decided to retain the proposed rule's general approach of fashioning hearing procedures that are tailored to the different kinds of licensing and regulatory activities the Commission conducts. However, in response to public comments, the Commission has revised the scope of proceedings to be governed by a hearing track, and has created a new track to provide for “legislative hearings.” The Commission expects that the revised hearing procedures, ranging from informal to formal, will improve the effectiveness and efficiency of the NRC's hearing process, and better focus and use the limited resources of all involved.

The following discussion describes and sets forth the bases for the final rule, including the Commission's resolution of all significant matters raised in public comments on both individual provisions of the proposed rule, and the Commission's requests for comment on specific issues, as well as additional corrections, clarifications, and additional matters addressed by the Commission in the final rule. The Commission's response to all remaining matters raised in the public comments are contained in “Responses to Comments Not Addressed in the Statement of Considerations for Changes to the Adjudicatory Process: Final Rule.” This document may be inspected at the NRC's Public Document Room, 11555 Rockville Pike, Rockville, Maryland, 20852, as well as in the NRC's Public Electronic Reading Room, http://www.nrc.gov/​NRC/​ADAMS/​index.html (ADAMS Accession No. ML033510327). Conforming changes to other Commission regulations in Title 10 of the Code of Federal Regulations have not been discussed, except where additional clarification of the basis for the change was deemed necessary.

(a) Overall Organization of part 2.

To provide for a more effective and efficient hearing process, the Commission is revising 10 CFR part 2 by:

(1) Establishing a new Subpart C to consolidate the Commission's procedures for ruling on requests for hearing/petitions for leave to intervene and admission of contentions, and establishing criteria for determining the specific hearing procedures that are to be used in particular cases and to set out the hearing-related procedures of general applicability;

(2) Modifying the hearing procedures in the current subpart G and subpart L and expanding the applicability of more informal procedures;

(3) Establishing a new subpart N that will provide “fast track” hearing procedures;

(4) Establishing a new subpart O that the Commission will use to conduct “legislative hearings;”

(5) Making conforming amendments as necessary throughout part 2 and the remainder of the Commission's regulations in title 10 to refer to the correct provisions of revised part 2; and

(6) Making correcting amendments to use: (i) Consistent terminology (e.g., “construction authorization for a high-level radioactive waste repository at a geologic repository operations area noticed under §§ 2.101(f)(8) or 2.105(a)(5),” and “proceedings on an Start Printed Page 2191initial application for a license to receive and possess high-level radioactive waste at a geologic repository operations area”), (ii) proper grammar, and (iii) plain English.

New subpart C—Rules of General Applicability for NRC Adjudicatory Hearings—is the starting point for consideration of, and rulings on, all requests for hearing/petitions for leave to intervene and the admissibility of contentions, and for selecting the appropriate hearing procedures to be applied in the remainder of the case. The Commission or a designated presiding officer would rule on requests for hearing/petitions to intervene and the admissibility of proffered contentions using the standards and procedures of subpart C.

In a change from past NRC practice, the Commission may designate either an administrative law judge [8] or a three-member Atomic Safety and Licensing Board,[9] to preside over subpart G, J, K, L and N hearings. The Commission has taken this step to ensure that all of these proceedings meet the requirements with regard to a presiding officer for an on-the-record hearing under the APA, 5 U.S.C. 554, 55, 556, and 557.

When it is determined that a hearing should be held, the Commission, presiding officer, or Licensing Board would next examine the nature of the action that is the subject of the hearing and the contentions admitted for litigation, apply the criteria in subpart C to determine the specific procedures/subpart that should be used for the adjudication, and issue an order for hearing designating the procedures/subpart to be used for the remainder of the proceeding. The hearing activities would then proceed under the designated subpart, i.e., Subpart G to be used for the most formal hearings, Subpart L for more informal hearings, Subpart M for license transfer cases, Subpart N for an expedited “fast track” hearing. The exception is Subpart O, which identifies the circumstances and procedures under which the Commission will conduct “legislative hearings.” These hearings may be held in the Commission's sole discretion: (1) In connection with design certification rulemakings, and (2) to assist the Commission in resolving questions on whether the Commission rules and regulations should be considered in a particular adjudication certified to it under § 2.335(d), as well as the special procedures to be utilized in such hearings. Subpart C also contains rules applicable in general to hearings conducted under the respective subparts.

The hearing procedure selection provision in § 2.310 reflects the range of proceedings for which the Commission intends to use informal hearing procedures. This is in keeping with the Commission's intent to expand the use of more informal procedures to improve the effectiveness and efficiency of the NRC's hearing processes. Subject to four exceptions, hearings will be conducted using more informal procedures. These exceptions are: (1) Licensing of uranium enrichment facilities, (2) initial authorization of the construction of a HLW geologic repository, and initial issuance of a license to receive and possess HLW at a HLW geologic repository, (3) enforcement matters (unless the parties agree to use more informal hearing procedures), and (4) parts of nuclear power plant licensing proceedings where the presiding officer by order finds that resolution of an admitted contention necessitates resolution of: (a) Issues of material fact relating to the occurrence of a past activity, where the credibility of an eyewitness may reasonably be expected to be at issue, and/or (b) issues of motive or intent of the party or eyewitness material to the resolution of a contested factual matter. Hearings for such contentions would be conducted using Subpart G procedures; hearings for any other contentions which do not meet this test would be conducted using Subpart L (or, upon agreement of all parties, Subpart N) procedures.

The Commission is retaining essentially all of the current procedures specific to the conduct of hearings under Subpart G. The Commission is substantially modifying the existing procedures in Subpart L to correct weaknesses identified under the current rule and to build on the experience under the current procedures for hearings in Subpart M for license transfer proceedings. The primary modifications to Subparts G and M involve the removal of provisions that are generally applicable to all proceedings and the relocation of the essence of those common provisions to Subpart C. The Commission is adopting a new Subpart N containing procedures for a “fast track” hearing, including an expedited oral hearing and oral motions, and limits on written submissions and the sometimes protracted series of written responses they often entail. Subpart N procedures could be used in any proceeding (except a proceeding on the licensing of construction and operation of a uranium enrichment facility) upon agreement of all parties.

Finally, the Commission is also adopting a new Subpart O that will govern the conduct of “legislative hearings” that the Commission may, in its discretion, decide to hold in either design certification rulemakings or to assist it in resolving a question certified to it under § 2.335. Conforming changes have been made to other subparts of 10 CFR part 2 and throughout Chapter 10 to reflect the reorganization of part 2.

(b) Commission Response to Eight General Questions in Proposed Rule.

In the proposed rule the Commission requested public responses to general questions in each of eight areas of discussion. The comments and the Commission's resolution of the comments are set forth below.

Question 1: Overall Approach for More Informal Hearings

In preparing the proposed rule, the Commission carefully considered the advantages and disadvantages of both formal hearings and informal hearings, attempting to balance the competing considerations of accurate decisionmaking, ensuring protection of public health and safety, timeliness of Commission decisions, and maintaining public confidence in the decisionmaking process. The Commission recognized that various NRC stakeholders may have differing perspectives on the relative importance of these considerations and differing views on the balance to be struck among these considerations. The Commission requested public comments on the relevant considerations that should inform the Commission's decision in adopting more informal hearing procedures, and whether the Commission's strategy in moving towards more informal hearing procedures should be continued. Commenters were asked to identify any aspect of the proposed rule's informal and formal hearing procedures which the commenter believes could be improved, together with specific proposals for improvement and an assessment of the proposal against relevant considerations, including fundamental fairness, the need for timely decisionmaking, and accurate fact-finding.

A broad range of comments was received, from those supporting the move to tailored, less-formal hearings, to those who oppose the move, asserting that the NRC's legislative and agency Start Printed Page 2192history supports formal public hearings conducted under Subpart G. In general, all of the private individual commenters and citizen groups opposed the move away from the full panoply of hearing procedures in Subpart G and the expanded use of more-informal hearing procedures reflected in the proposed Subparts L, M, and N. Two citizen group commenters argued that the Commission's proposal to expand the use of more-informal hearing procedures in Subpart L instead of the full panoply of Subpart G hearing procedures in nuclear power plant licensing proceedings was in violation of the AEA and the APA. In support of this view, they pointed to an OGC memorandum that was prepared in 1989 on license renewal that concluded that formal hearings were likely intended by Congress under the AEA. Several citizen group commenters asserted that the use of informal hearing procedures in reactor licensing proceedings constitutes a violation of due process under the Fifth Amendment of the U.S. Constitution. Several commenters argued that it is inconsistent for NRC to decide that formal hearings for licensing of a HLW geologic repository are necessary in order to build public confidence. In their view, “deformalizing” public participation in the decision-making process to generate more HLW through license extensions, new licenses, and amendments essentially eliminates the time needed for public awareness and involvement. By contrast, the nuclear industry commenters generally supported the shift away from the Subpart G procedures, with a commenter specifically asserting that informal hearings should become the presumptive hearing mechanism.

For the reasons set forth in Section I.B. above, the Commission continues to believe that formal, on-the record hearings are not required by the AEA, except for the initial licensing of the construction and operation of a uranium enrichment facility under Section 193 of the AEA. Furthermore, the Commission believes that, with the adoption of the requirement in § 2.313 that hearings under Subparts G, J, K, L and N be presided over by either an administrative law judge or an Atomic Safety and Licensing Board, the hearing procedures in each of these subparts meets the requirements for an on-the-record hearing under the APA in any event.

However, as a matter of discretion the Commission has decided to provide for formal, on-the-record hearings using the full panoply of Subpart G procedures and cross-examination in certain narrowly-prescribed areas. The fact that there may have been a long-standing Commission position that hearings must be conducted under Subpart G—at least with respect to reactor licensing—does not by itself prevent the Commission from taking a different view, and providing for less-formal hearing procedures, rather than the full panoply of discovery and cross-examination under Subpart G.

The Commission also disagrees with the assertion that use of hearing procedures other than those in Subpart G in reactor licensing proceedings violates the Due Process clause of the Fifth Amendment. The commenters presented no citations to any court decision holding that the use of other than Subpart G procedures in reactor licensing proceedings is a Due Process violation. Nor did the commenters present any legal analysis using the three criteria identified by the U.S. Supreme Court in Matthews v. Eldridge, 424 U.S. 319 (1976) for evaluating claims that agency procedures violate the Fifth Amendment. The Commission notes that intervenors in reactor licensing proceedings (as opposed to reactor license applicants, and those who are the subject of an NRC enforcement action) ordinarily cannot raise constitutional Due Process issues with respect to NRC hearing procedures, inasmuch as intervenors cannot claim governmental deprivation of “life, liberty or property” as a result of the NRC's licensing action. See City of West Chicago v. NRC, 701 F.2d 632, 645 (7th Cir. 1983). The Commission believes that the use of these procedures raises no constitutional Due Process issues, and that the Commission possesses the discretion to adopt the use of more informal hearing procedures.

The Commission also sought comments on whether the more informal hearing processes should be augmented or even supplanted by even more informal, legislative hearing procedures. One commenter supported supplanting both the existing hearing procedures, including Subpart G to the maximum extent allowed by law, and the proposed informal procedures with legislative hearings. Another commenter suggested that proposed Subparts L and N were sufficiently flexible and informal, but that moving to an even more informal legislative hearing may also be acceptable, so long as requirements are imposed to ensure that the hearings will be clearly focused on matters in dispute, and that parties will have sufficient opportunity to challenge factual claims or expert opinions advanced by their opponents. Finally, several commenters noted their opposition to legislative hearings. One commenter opined that legislative hearings were appropriate for resolving public policy issues, but not for issues implicated in nuclear licensing. Another simply stated that it was unrealistic to envision more legislative hearings as it presupposes that the Commission, presiding officer or Licensing Board possesses the requisite experience to promptly grasp and frame the issues. Additionally, a commenter stated that the rule should not be changed to resemble legislative hearings; adjudicatory hearings should provide for a fair process before an independent tribunal. Accordingly, the commenter asserted that it is the interested person and not the presiding officer or Licensing Board that must be responsible for proposing the issues and offering sufficient evidence to support their position.

The Commission believes that legislative hearings—where there are no parties, no discovery, witnesses are called to provide testimony on agency-identified matters, and questions are propounded to witnesses by the presiding official (which may be the Commission)—are not well suited to resolving disputes of fact relating to the occurrence of a past event, where the credibility of an eyewitness may reasonably be expected to be at issue, or where the motive or intent of the party or eyewitness is at issue. Nor does the legislative hearing model appear to offer any real advantages over other informal or formal hearing procedures in resolving matters of law. Moreover, the Commission has little experience in using legislative hearing procedures in contested proceedings, making it difficult to determine what practical problems would arise if contested proceedings were conducted under a legislative hearing model. Legislative hearings, however, do appear to be suited to the development of “legislative facts,” viz., general facts which help a decisionmaker decide questions of policy and discretion. See Sidney A. Shapiro, Scientific Issues and the Function of Hearing Procedures: Evaluating the FDA's Public Board of Inquiry, 1986 Duke L.J. 288, 265-96 & nn.61-66, citing Kenneth Culp Davis, The Requirements of a Trial-type Hearing, 70 Harv. L. Rev. 193, 199 (1956).

In the Commission's view, the non-adversarial nature of a legislative-style hearing may be the best way of developing the factual and policy bases for a decision in at least two discrete, narrowly-defined circumstances. The first is in design certification rulemaking, where the Commission Start Printed Page 2193identifies a significant policy issue (perhaps of potentially generic implications) either during the formulation of the proposed design certification rule, or as the result of public comments on the proposed design certification rule. In either circumstance, the Commission could, as a matter of discretion, decide to hold a legislative hearing to develop a record on the competing policy considerations that would inform a Commission decision on the underlying policy issue. The current rules, 10 CFR 52.51 and 52.63, provide for an opportunity for a commenting member of the public (or, in the event of a proposed amendment to a design certification rule, the party which applied for the certification) to request an informal hearing, but provide no guidance as to the nature of issues for which an informal hearing may be granted. Furthermore, the hearing is held only upon request; the rule is silent with regard to the Commission itself holding a hearing to gather pertinent facts and policy perspectives. The Commission believes that the design certification rulemaking process could be strengthened by incorporating an option for the Commission to hold, on its sole discretion, a legislative hearing to enable it to gather information on discrete policy matters relevant to the design certification.

The second area where a legislative hearing may prove useful is in the Commission's determination of a question certified to it by the presiding officer under § 2.335 (formerly § 2.758) regarding whether the Commission's rules and regulations should be considered in a particular adjudication. There may be circumstances where the Commission, after reviewing the question certified to it by the presiding officer, determines that there are significant policy issues regarding the certified question. As in design certification rulemaking, the Commission could, as a matter of discretion, hold a legislative hearing to develop a record on the competing policy considerations that would inform a Commission decision on the certified question.

Question 2: Hearing Tracks

A very significant part of this rulemaking involves the development of criteria for the selection of the hearing procedures to be used for the proceeding. These criteria set the course for the rest of the hearing by specifying the use of particular types or categories of procedures (e.g., formal, informal, informal-fast track, hybrid) for the remainder of the proceeding. In developing the proposed rule's hearing procedure selection criteria, the Commission recognized that, with the exception for licensing of uranium enrichment facilities, the Commission has broad authority and substantial flexibility to choose among the procedures in Subpart G, more informal oral or written hearing procedures, or any combination of Subpart G and more informal hearing procedures. The proposed rule reflected the Commission's belief that there should be at least three hearing tracks—a formal hearing track, an informal hearing track, and as provided by statute for expansion of spent fuel storage at nuclear power plants, a hybrid procedure. However, the Commission requested public comment on: (1) The proposed rule's approach of multiple, specialized tracks tailored to certain types of issues, (2) whether additional specialized tracks should be considered, and (3) the desirability of adopting an alternative approach that would provide for a single formal and two informal hearing procedures, with the presiding officer given the discretion to tailor the procedures to suit the circumstances of each case.

While a number of commenters on this question generally supported the use of multiple hearing tracks tailored to certain types of issues, there was much disagreement over the kinds of proceedings which should be subject to differing hearing tracks. One commenter suggested that hearings on license applications, amendments, and transfer requests should be informal and normally conducted by means of written submittals. Additional specialized hearing tracks were not seen as necessary because the tracks in the proposed rule, with some modifications, were viewed as sufficient to address the various types of matters coming before the Commission for adjudication. One commenter specifically stated that it did not support the adoption of a single formal and two informal hearing tracks, with presiding officer discretion to tailor procedures for each case. The commenter stated that, although somewhat complex, the multiple-track approach currently proposed would provide clear directions and certainty for each type of proceeding. Two commenters asserted that providing hearing officers with wide discretion to determine the hearing process in each case would likely result in additional disputes and litigation over procedural matters, reduce the predictability of likely burdens on participants in proceedings, and risk application of inconsistent processes in similar cases. One commenter argued that, in licensing all nuclear fuel cycle activities, formal hearings should be available on request to interested persons.

The Commission has decided to adopt the proposed rule's approach of establishing three primary hearing tracks supplemented with additional hearing tracks tailored to the kind of proceedings and issues that may be addressed in such proceedings. The primary hearing tracks are: (1) Subpart G, containing the full panoply of formal, trial-type procedures; (2) Subpart L, establishing a set of more informal hearing processes; and (3) Subpart K, containing a legislatively-required hybrid hearing process.

The Commission sought public comment on whether there are better alternatives to the proposed rule's approach for defining what type of proceedings are appropriate for Subpart G hearing procedures, versus more informal hearing procedures. The Commission asked whether the proposed category of cases to which formal hearing procedures would apply was too narrow, or conversely, should the rule specify that all proceedings would be informal hearings unless one or more criteria are met for the use of formal, Subpart G hearing procedures. The Commission requested proposals for criteria for determining formal versus informal hearing procedures, indicating that commenters should identify the perceived advantages and disadvantages of suggested alternative approaches as compared with the proposed rule's approach for determining the applicability of formal and informal hearing procedures.

Industry commenters generally asserted that the proposed category of cases to which informal hearing processes would apply is too narrow. They also disagreed with the assumption that formal trial-like procedures in Subpart G will be helpful in resolving proceedings with “numerous and complex issues.” Instead, they proposed that informal processes such as those in proposed Subparts L and N should be used for nearly all types of proceedings. By contrast, citizen group commenters generally opposed the move to informal hearing procedures, and contended that all hearings should be formal.

The Commission has decided to continue using the approach set out in the proposed rule, whereby most adjudications would be conducted under the hearing procedures in Subpart L, unless one of the more specialized hearing tracks in Subparts G, K, M, or N, apply. With the exception of Subpart O legislative hearings, the criteria for Start Printed Page 2194selecting among the specialized hearing tracks are set forth in § 2.310. The circumstances under which the Commission may decide to hold Subpart O legislative hearings, are set forth in § 2.1502. The criteria for designating the hearing track for any given proceeding are discussed further in II.A.2(f) in connection with the resolution of comments on § 2.310.

Question 3: Presiding Officer

The Commission sought comments on whether there should be criteria for determining whether a proceeding should be held before an administrative judge/Licensing Board or the Commission and, if so, what those criteria should be. In general, commenters did not embrace the possibility of the Commission itself conducting a hearing. One commenter asserted that the Commission should always serve the role of an appellate body, while all proceedings should be before administrative judges of the Atomic Safety and Licensing Board Panel. Two commenters indicated that the NRC should make greater use of the Atomic Safety and Licensing Board or a single administrative judge rather than relying upon the Commission to preside. One of these commenters noted that they would not object if the Commission were to preside over a hearing in carefully selected special cases, if time and other Commission responsibilities permitted, but observed that allowing one or more Commission members to preside would create practical difficulties on review of the initial decision. The commenter argued that the final rule should specify whether a single presiding officer or Licensing Board is to preside over particular proceedings, rather than setting forth criteria governing the selection of hearing procedures. The commenter also suggested that § 2.313 be redrafted to allow specifically for parties to request appointment of a Licensing Board or single administrative judge within a reasonable time (10 days) after a hearing is granted.

The Commission has decided that, with the exception of license transfer proceedings, the final rule should not specify the circumstances under which the Commission may choose to act as the presiding officer, inasmuch as these circumstances are likely to occur infrequently and in unusual circumstances. There seems to be little benefit in developing criteria that would be used infrequently; the Commission can address the question of the Commission itself serving as the presiding officer on a case-by-case basis. However, as discussed earlier, the Commission has decided that hearings conducted under Subparts G, J, K, L and N should be presided over by either a single administrative law judge (rather than a single administrative judge) or an Atomic Safety and Licensing Board. Hearings under Subparts M and O may be presided over by the Commission, a single administrative law judge, a single administrative judge, or an Atomic Safety and Licensing Board.

Question 4: Discovery

Unlike former Subpart G, where parties are permitted discovery ranging from document production to multiple interrogatories and depositions of other parties' witnesses, the proposed Subpart C would set forth a general requirement in every proceeding that the parties disclose and make available pertinent documents and identify witnesses. Additional discovery would be available in proceedings that use the formal hearing procedures of Subpart G. However, in view of the general availability of licensing and regulatory documents under NRC regulatory practice, it is not clear that discovery is needed in most NRC adjudications beyond the mandatory disclosures required by Subpart C and the broad public accessibility to documents provided by § 2.390 (former § 2.790). The Commission requested comments on whether discovery should be eliminated or limited to requests from the presiding officer.

Several commenters supported the use of a hearing file of the sort currently required by Subpart L, as the file contains the entire basis for NRC staff action in a particular case and, therefore, the information pertinent to a general determination whether the application meets the Commission's requirements. One commenter suggested that such a hearing file should constitute the sole form of discovery, while another supported the use of the broader disclosure provisions in Subpart C as an adjunct to the hearing file. Some commenters supported the adoption of the mandatory disclosure provisions, but found proposed §§ 2.335 (§ 2.336 in the final rule) and 2.704 overly burdensome as drafted. Other commenters opposed any changes in discovery, preferring that the Commission either maintain the existing Subpart G discovery provisions, or that discovery be governed by the Federal Rules of Civil Procedure. In general these commenters argued that the proposed discovery provisions diminished the rights of citizens and therefore should be prompted only by the most compelling reasons which the NRC failed to provide. One commenter stated that discovery is most successful when controlled by the opposing party without oversight by a presiding officer, and considered full discovery of the NRC staff to be essential.

The Commission believes that the tiered approach to discovery set forth in the proposed rule represents a significant enhancement to the Commission's existing adjudicatory procedures, and has the potential to significantly reduce the delays and resources expended by all parties in discovery. At the foundation of the Commission's approach are the provisions in Subparts C and G which provide for mandatory disclosure of a wide range of information, documents, and tangible things relevant to the contested matter in the proceeding, and the NRC's provisions for broad public access to documents in § 2.390. The mandatory disclosure provisions, which were generally modeled on Rule 26 of the Federal Rules of Civil Procedure, have been tailored to reflect the nature and requirements of NRC proceedings. Mandatory disclosure of information relevant to the contested matter (together with the hearing file and/or electronic docket, discussed later) should reduce or avoid the need to draft often-complex discovery requests such as interrogatories, prepare for time-consuming and costly depositions, and engage in extended litigation over the responsiveness of a party to a discovery request. Reducing the burden of discovery may enhance the participation of ordinary citizens in the discovery process, since they often do not have the resources to engage in protracted litigation over discovery.

The second tier of discovery is provided by the hearing file in Subpart G, L and N proceedings, and the electronic docket and LSN in Subpart J. The hearing file consists of the application, correspondence between the applicant and NRC relevant to the application, and when available, any NRC environmental impact statement or assessment, and any NRC safety report related to the application/proposed action. See § 2.1203(b). The NRC staff has a continuing duty to keep the hearing file up to date. See § 2.1203(c). Thus, all parties in a Subpart G, L, or N proceeding need only periodically check the hearing file (which is required to be placed on the NRC Web site, and/or at the NRC's Public Document Room, see § 2.1203(a)(3)) in order to be informed of the status of the NRC staff's consideration of the application or proposed action. In a Subpart J proceeding, rather than using a hearing file, the Secretary of the Commission will maintain an electronic docket into Start Printed Page 2195which an application for a construction authorization for a high-level radioactive waste repository at a geologic repository operations area, and an application for a license to receive and possess high-level radioactive waste at a geologic repository operations area will be placed. In addition, the electronic docket will provide all official NRC records on the application, and all exhibits tendered during the hearing. In addition, prior to the filing of any application, potential parties, including the applicant and the NRC staff, must enter all pertinent documents into the LSN which will make such documents available to all potential parties. Thus, the hearing file, the electronic docket, and the LSN provide ready public access to all public documents (i.e., those not otherwise required to be protected from public disclosure, see § 2.390) on the application or enforcement action which is the subject of the hearing.

A third tier of discovery is provided for proceedings governed by the hearing procedures in Subpart G, in which “traditional” discovery tools such as interrogatories, depositions, subpoenas and admissions may be used, as a supplement to the required mandatory disclosures. These discovery tools may be useful in gaining information necessary to adequately prepare for hearing, in seeking to gain specific information from eyewitnesses or persons who have direct knowledge about events or incidents directly bearing on motive or intent. In addition discovery against the NRC staff may be pursued in accordance with § 2.709 (formerly §§ 2.720 and 2.744).

The Commission believes that public access to NRC documents afforded by § 2.390, mandatory disclosure for parties other than the NRC staff, and maintenance of either a hearing file or an electronic docket, will be sufficient in most proceedings to provide a party with adequate information to prepare its position and presentations at hearing (whether in written or oral form), such that the discovery under Subpart G (e.g., depositions, interrogatories, and subpoenas) is unnecessary. Subpart G discovery tools are analogues to discovery tools used for litigation in trial courts of general jurisdiction. These adjudications generally involve private parties where information is not publicly disclosed nor ordinarily available to all parties, and concern disputes over a broad range of subject matters. By contrast, the vast majority of NRC proceedings concern licensing applications or enforcement actions. All documentation between the NRC and the applicant/subject of the enforcement action with respect to the licensing application or enforcement action is public (unless protected from public disclosure, see § 2.390), and will be placed into the hearing file or electronic docket. In addition, as discussed later, the NRC staff often holds public meetings where an application is discussed. In these circumstances, there is little or no need for the broad range of additional discovery permitted under Subpart G. Accordingly, the Commission concludes that the public access to documents afforded by § 2.390, the mandatory disclosures required by § 2.336, and the requirements for the NRC staff to maintain either a hearing file under §§ 2.336(b) and 2.1203 or an electronic docket under § 2.1011 (and the requirement for all potential parties to participate in the LSN for any HLW repository proceeding), are sufficient discovery in most NRC adjudications.

Question 5: Witnesses, Cross-Examination, and Oral Statements by the Parties

The Commission sought public comment on the degree to which oral testimony and questioning of witnesses should be used in each of the proposed hearing tracks. With respect to cross-examination, the Commission requested public comment on: (1) The relative value and drawbacks of cross-examination; (2) whether the proposed approach that would limit cross-examination in favor of questioning by the presiding officer is appropriate; (3), whether the proposed revisions to Subpart L should include traditional cross-examination as a fundamental element of an oral hearing; and (4) assuming that cross-examination is retained for some subset of oral hearings, the appropriate criteria for identifying and distinguishing between proceedings or issues where cross-examination should be used, and those where cross-examination is not necessary.

Commenters responding to this question ranged from those who supported traditional cross-examination in all proceedings, to those who preferred questioning by the presiding officer. Of those commenters preferring cross-examination by the parties in all proceedings, one commenter noted that cross-examination has long been a hallmark of NRC proceedings and that it is crucially important to intervenors who lack the resources to submit their own expert testimony, but who have valid concerns about an applicant's case. Another commenter opposed the change in cross-examination practice without a compelling reason provided by the NRC to justify such a fundamental change. One commenter requested that all hearings be formal with the right to call witnesses for direct and cross-examination. Another commenter regarded cross-examination as most effective when it is “exploratory” or unplanned and thus, opposed its constraint in any way. Another commenter was concerned that a presiding officer and members of the Atomic Safety and Licensing Board Panel are normally not qualified as an expert to ask the necessary follow-up questions, and noted that any competent trial judge should be able to limit excessive cross-examination. Other commenters supported limiting cross-examination to issues and proceedings where it proves useful. One commenter argued that the Subpart L approach of questioning conducted by the presiding officer should be expanded into Subpart G proceedings, where possible. This commenter continued by arguing that the assertion of a need for cross-examination to get to the truth has been repudiated by legal scholars, and that limitations on cross-examination do not deprive any party of its right to a full or fair hearing. Another commenter asserted that, with the exception of hearings under Subpart G, the presumption should be that hearings would be conducted based upon written submittals unless specific criteria are met. This commenter asserted that in some circumstances, cross-examination can assist a presiding officer by requiring witnesses to answer questions which would otherwise not be asked. The commenter also suggested that cross-examination is particularly useful in cases where the credibility or motivations of a witness or his or her recollection of events is at issue, but that it has several drawbacks. Accordingly, the commenter suggested that cross-examination be reserved for those matters in which it is likely to add appreciable value. Another commenter stated that cross-examination should be reserved for genuine issues of pure fact, and that in other instances, the proper way to rebut an expert's testimony is by filing rebuttal expert testimony.

After considering the various arguments of the commenters, the Commission continues to believe that cross-examination conducted by the parties often is not the most effective means for ensuring that all relevant and material information with respect to a contested issue is efficiently developed for the record of the proceeding. The Commission's consideration of cross-examination in the hearing process begins with the observation that parties have no fundamental right to cross-Start Printed Page 2196examination, even in the most formal hearing procedures provided in Subpart G. Curators of the Univ. of Mo., CLI-95-1, 41 NRC 71, 120 (1995). Under the APA, cross-examination is authorized only if necessary for a “full and true disclosure of the facts.” 5 U.S.C. 556(d). Since neither due process principles nor the APA require cross-examination, the Commission's determination whether to permit cross-examination turns on whether cross-examination is necessary to elucidate relevant and material factual evidence, or whether the hearing process affords other mechanisms of assuring that the decisionmaker is privy to such evidence in a manner that conserves the decisionmaker's and the parties' time and resources. While cross-examination can be an effective mechanism for ensuring a complete and accurate hearing record, especially in circumstances involving disputes over the occurrence of an activity or the credibility of a material witness, it does not appear to be either necessary or useful in circumstances where, for example, the dispute falls on the interpretation of or inferences arising from otherwise undisputed facts. In such cases, questioning of witnesses by the presiding officer, after consideration of questions for witnesses propounded by the parties, has the potential to be the better approach for assuring the expeditious, controlled and deliberate development of an adequate record for decision. The presiding officer is ultimately responsible for the preparation of an initial decision on the contention/contested matter; it would follow that the presiding officer is best able to assess the record information as the hearing progresses, and determine where the record requires further clarification or explanation in order to provide a basis for the presiding officer's (future) decision. If there are circumstances in any proceeding where the presiding officer believes that cross-examination by the parties is needed to develop an adequate record, the presiding officer may authorize cross-examination by the parties.

Furthermore, upon further consideration and assessment of the limited comments on the matter, the Commission believes that the complexity and number of issues in nuclear power plant licensing proceedings may not, per se, lead ineluctably to the conclusion that cross-examination is necessary to ensure a fair and adequate hearing on the contested matters. Rather, it is the nature of the disputed matters themselves that most directly and significantly bears on whether the techniques of formal hearings such as cross-examination are appropriate. Accordingly, the Commission has decided to modify the proposed rule by providing for the use of Subpart G procedures (including formal discovery procedures and cross-examination at hearing) in nuclear power plant licensing only where the presiding officer by order finds that the resolution of particular contentions necessitates resolution of material issues of fact which are best determined through the use of the procedures in Subpart G. As discussed earlier, these are issues relating to the occurrence of a past event material to the issue in controversy, where the credibility of an eyewitness (not an expert witness without first-hand knowledge) may reasonably be expected to be at issue, as well as issues of motive or intent of the party or eyewitness. In these circumstances, formal trial-like procedures, with formal discovery before the hearing and cross-examination at the hearing, are useful and should result in development of an adequate record for decision on these particular types of issues. The Commission continues to believe that in proceedings using more informal hearing procedures, the presiding officer should have sole authority and responsibility to conduct the examination of witnesses, after considering suggested questions for witnesses posed by the parties. However, the presiding officer has the authority to allow cross-examination in informal proceedings upon request of a party, if the presiding officer determines that cross-examination is necessary to ensure the development of an adequate record for decision. See, e.g., § 2.1204(b) (Subpart L); § 2.1322(d) (Subpart M); § 2.1402(c) (Subpart N). While the Commission acknowledges that this approach places greater emphasis and responsibility on the presiding officer to oversee the development of a full and complete record, the Commission concludes this approach will result in the fair but expeditious development of an adequate record for a final decision. In sum, the Commission expects that in hearings under Subpart L, M, and N procedures, the presiding officer will conduct the examination of witnesses, and that the presiding officer will permit cross-examination only in the rare circumstance where the presiding officer finds in the course of the hearing that his or her questioning of witnesses will not produce an adequate record for decision, and that cross-examination by the parties is the only reasonable action to ensure the development of an adequate record.

The Commission requested public comment regarding whether parties should be permitted to make oral statements of position (possibly under time limits), if the Commission decided not to afford the right of cross-examination in certain circumstances (as was proposed for Subparts L and N). The Commission received no comments specifically addressing this question, and no change to the proposed rule was made in this regard.

Question 6: Time Limitations

In the proposed rule, the Commission noted that although the existing part 2 and the proposals that follow set time limits for filings, petitions, responses, and the like,[10] there are no firm time schedules or limitations established within which major aspects of the hearing process (e.g., discovery, issuance of an initial decision) must be completed. The Commission requested comment on whether firm schedules or milestones should be established in the NRC's Rules of Practice in part 2.

Several commenters supported the principle that the Commission set strong and effective schedule mileposts in the rules to ensure appropriate case management. One commenter stated that the rules (including Subparts G, L and N) should specify clear and appropriate schedules similar to existing Subpart M. The commenter continued by noting that, although the proposed rule contains some potentially effective tools to encourage Licensing Boards and presiding officers to conduct efficient and effective hearings, more is needed, and supported imposition of specific schedular milestones in all hearing tracks governing the time limits for each stage of the proceedings, similar to the milestones in Subpart N, §§ 2.1404-2.1407. Another commenter stated that the schedule should provide sufficient time for parties to prepare for and participate in the proceeding, but contended that limits should be set to prevent proceedings from becoming unduly delayed and unpredictable in duration. Another commenter suggested that the final rule should include firm hearing schedules and should provide that the Commission be notified by the presiding officer within five days if any of the milestones are missed. Another comment argued that departures from schedules should not be permitted except upon an affirmative showing that Start Printed Page 2197specific criteria for departure from the schedule or order have been met. But at least one commenter expressed firm opposition to milestones or schedules stating that making schedules mandatory would lead to an inflexible regime which violates the APA's mandate and would further delay the time it would take for the Commission to become involved.

The Commission does not believe that a rule of general applicability such as part 2 should establish mandatory and inflexible schedules for the conduct of proceedings. The potential wide variation in the number of parties and participants (interested State, local government body, and affected, Federally-recognized Indian Tribes), number of contentions, complexity of contentions, and other case-specific circumstances and considerations may make it difficult to establish a generic schedule or set of milestones. Moreover, the Commission believes that strong case management and control by the ASLBP and its presiding officers—using the tools and reflecting the policies in the Commission's Policy Statement on the Conduct of Adjudicatory Proceedings and in the rules of practice—and the Commission's ongoing oversight of presiding officers and Licensing Boards are the key to the efficient and effective conduct of hearings. Accordingly, the final rule does not contain any generally-applicable hearing schedule or set of milestones for the conduct of proceedings. The rule does, however, require the presiding officer to establish a schedule for the proceeding, to manage the case against that schedule, and to notify the Commission when it appears that there will be slippage in the overall schedule of sixty (60) days or more. See §§ 2.332 and 2.334. The Commission will continue to exercise its oversight of proceedings and may revisit this issue in the future if circumstances warrant. In particular, the Commission will consider whether general sets of milestones for the principal adjudicatory tracks can be developed and added to the rules as an appendix or provided as guidance by other means.

Question 7: Request for Hearing and Contentions

The Commission requested public comment on the appropriate time frame for filing petitions/requests for hearing and contentions, i.e., the simultaneous filing of requests/petitions, and contentions (specific comments on the appropriateness of forty-five (45) days, versus a different time period, are addressed below in II.A.2.(f) under “Timing of Requests for Hearing/Petitions to Intervene”). Several commenters supported the consolidation of petitions to intervene/requests for hearing with proposed contentions. One comment noted that this change should improve the efficiency of proceedings, and eliminate ambiguities currently surrounding the timing of submission of contentions. Most citizen group commenters, however, opposed consolidated filing, arguing that the time provided for intervenors to file their request/petition—which must demonstrate standing—and contentions is unreasonably short and unduly burdens potential requestors/intervenors. One of these commenters proposed using a process whereby a request for hearing/petition to intervene is filed, standing is resolved, and thereafter contentions are due.

The Commission has retained the consolidated filing of requests for hearing/petitions to intervene and contentions in the final rule. The Commission's experience in the area of license transfers under Subpart M shows that simultaneous filing of requests/petitions and contentions is not unreasonable and generally does not impose an undue burden on potential requestors/intervenors. Moreover, unlike Subpart M, which provides for twenty (20) days to submit requests/petitions and contentions, as discussed below with respect to Section § 2.309 the Commission has considered concerns over the adequacy of the 45-day period and has decided to provide sixty (60) days for submission of requests/petitions and proposed contentions. The Commission also notes that many significant licensing actions involve pre-application meetings, which afford the public advance notice of impending applications and an early opportunity to gain information on the substance of the planned application. For these reasons, the Commission concludes that a consolidated period for filing both requests/petitions to intervene and contentions is a reasonable regulatory approach.

Question 8: Alternative Dispute Resolution

The Commission requested comments on whether the Commission's rules should require parties to engage in alternative dispute resolution (ADR). All commenters responding to this question supported the availability and use of ADR in a wide variety of cases. Another comment supported the use of ADR if all parties agreed to its use. However, no commenter supported the mandatory use of ADR.

The Commission agrees with the commenters that in the absence of a statutory requirement for the use of ADR in NRC adjudications, it is not appropriate to mandate the use of ADR. The final rule's provisions addressing ADR provide an opportunity for parties to use ADR, but do not mandate it. Apart from this rulemaking, the Commission is currently undertaking an evaluation of the use of ADR in NRC enforcement proceedings (66 FR 64890; Dec. 14, 2001). This assessment may lead to further changes in 10 CFR part 2 with respect to ADR in enforcement proceedings.

(c) Introductory provisions.

The Commission is amending § 2.4 to add a new definition of “presiding officer,” to make clear that when a provision in part 2 refers to a presiding officer, it may mean the Commission, a single administrative law judge, an administrative judge, an Atomic Safety and Licensing Board, or other designee, who has the authority to preside in a part 2 proceeding as determined under the provisions of part 2.

(d) Subpart A.

The Commission is amending § 2.100 to correct a typographic error (“a license, versus “alicense”). Section 2.101 is amended to provide correct references to Subpart C and to conform paragraph (g)(2) to current Federal Register formatting requirements. In response to a comment, the Commission is modifying § 2.101(a)(3)(ii) and (b) to require that the applicant's notification of the availability of an application and/or environmental report should be accompanied by, inter alia, the email address, if one is available, of the designated applicant representative. Section 2.102 is also amended to provide correct references to Subpart C. Section 2.103 is amended to make clear that these regulatory procedures for granting and denying a license also apply to facility licenses; currently the rule does not refer to facility licenses although there is no reason why the regulatory procedures outlined should not also apply to such licenses. In addition, §§ 2.103, 2.104, 2.105 and 2.106 are amended to add a reference to part 63 (66 FR 55732; Nov. 2, 2001), and to use consistent terminology. In response to a comment, § 2.107 is corrected to provide that if an application is withdrawn before issuance of a notice of hearing, the Commission (rather than a presiding officer) dismisses the proceeding. Sections 2.108 and 2.110 are amended to provide correct references to Subpart C.

(e) Subpart B.Start Printed Page 2198

Section 2.206—Requests for Action Under This Subpart

The Commission is modifying paragraph (c) of § 2.206 to transfer from former § 2.772(g) (proposed rule § 2.345(g)) the authority of the Secretary to extend the time for Commission review on its own motion of a Director's denial. Director's denials under § 2.206 are not governed by the adjudicatory processes in part 2 and therefore do not belong in Subpart C, which applies only to certain specified NRC adjudicatory proceedings.

(f) Subpart C.

Section 2.302—Several corrections and clarifying changes were made to § 2.302 to: Correct the address for personal and expedited delivery upon the Secretary, and to reorder the listing of addresses so that this section and § 2.305 are consistent with each other.

Section 2.304—Formal Requirements for Documents; Acceptance for Filing

In response to a comment, § 2.304(f) is revised to correct a typographic error in the proposed rule whereby the number of paper copies of an electronically-filed document to be submitted to the NRC was not specified. Section 2.304(f) now refers to “2 copies.”

Section 2.305—Service of Papers, Methods, Proof

Section 2.305(e)(3) of the proposed rule provided that service by electronic mail would be complete upon receipt of electronic confirmation that one or more of the addressees for a party has successfully received the transmission. A commenter argued that paper copies of documents served electronically should be provided, in part because service of hard copies is necessary to ensure consistency with pagination for citation purposes. In addition, the commenter suggested that this section be revised to provide for service by mail or fax where an electronic transmission is undeliverable.

A change in this provision is warranted since not all e-mail systems provide confirmation of delivery to the sender. Furthermore, the Commission is considering a rulemaking addressing electronic filing, which would be a better forum for the Commission to consider issues of confirmation of electronic service. Finally, the Commission agrees that paper copies should be provided to facilitate uniform citation of documents which are served electronically. Accordingly, the final rule deletes the provision for completion of service of e-mail documents through electronic confirmation, and adds a new provision in paragraph (c) requiring that a document served by e-mail must also be served by one of the other means of service provided in § 2.305.

Several corrections and clarifying changes were made to § 2.305 to: (1) Add delivery by courier as equivalent to personal delivery, (2) consistently refer to “express” mail, (3) add references to “expedited delivery services” (e.g., Federal Express and other private delivery services) and to make clear that such services are equivalent to express mail, (4) provide that the presiding officer may require service of pre-filed testimony and demonstrative evidence to be made by means other than first-class mail, (5) clarify the address for delivery of documents by courier and expedited delivery services to the Secretary of the Commission; and (6) correct the email address for service of documents by e-mail to be consistent with § 2.302.

In addition, to ensure that NRC staff is kept abreast of developments in a proceeding, so that it may properly fulfill its obligations to advise the presiding officer of its decision to act on an application (see §§ 2.1202(a), 2.1316(a) 2.1403(a)), and to determine whether it should participate as a party in those proceedings where the NRC staff may decide whether to participate (see §§ 2.1202(b), 2.1316(b), 2.1403(b)), the Commission is revising § 2.305 by adding a new paragraph (f). Section 2.305(f) requires: (1) All parties to serve the NRC staff with copies of all documents required to be served upon all parties and the Secretary, in instances where the NRC chooses not to participate as a party, and (2) the NRC staff to designate the person and address for service of such documents. The NRC staff's designation must be made when it informs the presiding officer of its determination not to participate as a party.

Section 2.306—Computation of Time

In response to a comment, the Commission is modifying § 2.306 to provide that when computing time allowed for a response, no time is added if a notice or paper is served in person or by courier. In addition, the rule was modified to clarify that the period of time allowed for response commences upon receipt of the document, and to refer to “after 5 PM” instead of “not received * * * before 5 PM.” Other clarifying and conforming changes were made to: (1) Consistently refer to “first class mail,” (2) make clear that expedited delivery services are equivalent to express mail for purposes of determining the time for responses, and (3) make clear that delivery in person or by courier is equivalent to electronic transmission for purposes of determining the time for responses.

Section 2.309—Hearing Requests/Petitions To Intervene; Standing; Contentions Timing of Requests for Hearings/Petitions To Intervene

Section 2.309(b) of the proposed rule contained different requirements for the timely filing of requests for hearings/petitions, depending on whether notice of the proceedings and opportunity for hearing are published in the Federal Register. Where Federal Register notice is required, the proposed rule provided that the period for filing requests/petitions would be the latest of the time specified in the notice, the time specified in § 2.102(d)(3), or if the notice does not specify a time, forty-five (45) days from the date of publication. Where Federal Register notice is not required by statute or regulation, the proposed rule provided that a notice of agency action (for which an opportunity to request a hearing may be required) published on the NRC Web site would initiate a forty-five (45) day period in which timely requests for hearing must be filed. The Commission requested public comment on this proposal, asking commenters to identify whether there are other notification methods that the NRC could use to provide timely notice of licensing actions which are not required to be noticed in the Federal Register.

A commenter supported publication of actions on the NRC Web site where notice in the Federal Register is not required, noting that the website is broadly and easily accessible to the public. On the other hand, another commenter asserted that the NRC should continue and expand its practice of publishing notices in the Federal Register, explaining that while it supports publishing notice on the NRC Web site, it is not as reliable as publication in the Federal Register, which is legally deemed to be adequate notice.

The Commission believes that it should expand its practice of noticing on the NRC Web site some of those actions which do not require publication of notice in the Federal Register. The NRC Web site already makes available a broad range of information, including notices of availability of NRC reports, and notices of availability of NRC safety evaluations. The Commission has recently approved NRC staff proposals to enhance the NRC's Public Meeting Web site. See SECY-01-0137, Enhancing Public Participation in NRC Meetings (July 25, 2001) (ADAMS Accession No. Start Printed Page 2199ML012070084). Internet access is becoming increasingly available to the general public. According to the National Telecommunications and Information Administration, in 2001 over 50 percent of U.S. households have Internet access, with 43 percent of the households having access at home. National Telecommunications and Information Administration, U.S. Department of Commerce, A Nation Online: How Americans are Expanding Their Use of the Internet (Feb. 2002).[11] Persons who do not have Internet access at home can, in many cases, obtain Internet access through local public libraries (the Federal Communications Commission's Universal Service Fund System provides funding for public libraries to provide free Internet access, see 47 CFR 54.503). The Commission believes that, as a practical matter, publication of notice by means of the NRC Web site provides at least as much access to the notice for the public as publication in the Federal Register. However, notice on the NRC Web site costs substantially less than publication in the Federal Register and can sometimes be done without the few days delay inherent in sending notices for publication in the Federal Register. Where Federal Register notice is not required by statute or regulation, any notice of agency action (for which an opportunity to request a hearing may be required) published on the NRC Web site initiates the period in which timely requests for hearing must be filed.

On the other hand, while the Commission agrees with the comment that the NRC's Web site is broadly and easily accessible to the public, the Commission nonetheless acknowledges that publication of notices in the Federal Register are, by law, deemed to be constructive notice to the public. Furthermore, the Commission recognizes that under the AEA, some notices of NRC regulatory actions are required to be published in the Federal Register, and for such regulatory actions a Web site notice cannot replace (although they can supplement) a Federal Register notice. However, in situations where notice is not required by law to be published in the Federal Register, the cost of Federal Register publication does not appear to be justified where a more cost-effective, timely and broadly-accessible alternative, viz., publication on the NRC Web site, is available. Accordingly, as will be discussed later, the Commission will direct the NRC staff to enhance and expand its efforts to provide public notice in some cases through publication on the NRC Web site where Federal Register notice is not required.

The Commission also requested comments on three alternative approaches for the timing of filing requests for hearing/petitions to intervene, and proposed contentions: (1) Proposed contentions to be filed as part of the initial request for hearing/petition to intervene forty-five (45) days from the date of publication (either in the Federal Register or on the NRC Web site) of the notice of opportunity to request a hearing (embodied in proposed § 2.309); (2) retention of the current NRC practice, viz., filing of requests for hearing within thirty (30) days of notice, and filing of contentions sometime later, or (3) a longer time, e.g., seventy-five (75) days from notice of opportunity for hearing, to file a request for hearing/petition to intervene and proposed contentions.

In general, citizen group commenters opposed the proposed rule, focusing on the limited time available to file requests/petitions that address standing, while simultaneously developing contentions and their supporting bases, as required by § 2.309(f) (see comments to Commission Question 7 above). One citizen group commenter noted that the Commission previously had considered requiring simultaneous filing of requests and contentions in Subpart G, and abandoned it as unworkable. By contrast, nuclear industry commenters supported the proposed rule requirement that requests/petitions and contentions be filed no later than forty-five (45) days after NRC notice of the proposed action, with the Commission having the discretion of extending the time upon showing of good cause. One commenter stated that an expansion of time for filing is warranted only in situations where the times allowed by the rule are unworkable. One nuclear industry commenter opposed providing seventy-five (75) days for submission of contentions.

To address the comments that a forty-five (45) day period for filing requests for hearing/petitions to intervene and contentions is insufficient, as well as to ensure timely public notification of impending NRC staff actions, the Commission has decided to provide a sixty (60) day period for filing requests for hearing/petitions to intervene and proposed contentions. The limited exceptions involve facility license transfer proceedings, where the Commission is retaining the current twenty (20) day period for filing requests for hearing/petitions to intervene and contentions, and the proceeding on a HLW geologic repository where the Commission will retain the thirty (30) day period for filing requests for hearing/petitions to intervene and contentions (in view of the ample pre-application document disclosures provided by the LSN).

In addition, the Commission will direct the NRC staff to: (1) Establish a single area on the NRC Web site for publishing: (a) Notices of receipt of major applications or pre-application notifications of intent to file an application; (b) notices of docketing of major applications; and (c) notices of opportunity to request a hearing/petition to intervene for major applications and regulatory actions; and (2) develop guidelines, criteria and procedures for timely determining the types of major applications, licensing and regulatory actions for which Web site notice is appropriate. The Commission's intention is that the most important applications, licensing and regulatory actions, e.g., initial nuclear power plant and fuel facility construction permits, facility license renewals, design certifications under part 52, be noticed on the NRC Web site at http://www.nrc.gov/​public-involve/​major-actions.html. This Webpage will include either a link for download of the document, a link to a webpage with the document text, or an ADAMS accession number and a link to the NRC's Public Electronic Reading Room (PERR).

The Commission believes that these notice provisions, in conjunction with an expanded period of sixty (60) days in which to file a request for hearing/petition to intervene and contentions, will provide more than ample time for a potential requestor/intervenor to review the application, prepare a filing on standing, and develop proposed contentions and references to materials in support of the contentions. Most major licensing actions for nuclear facilities (where the scope of the application is most likely to require significant review time in order to prepare a request for hearing/petition to intervene) entail pre-application filings which are docketed and are available to the public, and pre-application meetings between the applicant and the NRC staff which are open for observation to the public. As discussed earlier, the NRC staff, with Commission direction, is undertaking actions to provide more consistency in the conduct of public meetings, and the opportunities for the public to ask questions of the NRC staff at such meetings. For major licensing actions for nuclear facilities, the Web notice of pre-application meetings which the public may observe and have Start Printed Page 2200a limited opportunity to ask questions, the availability of application-related documents for reading on the NRC Web site and/or download, and Federal Register and/or Web notice of the filing of an application and acceptance of the application for docketing, effectively provides the public with more than sixty (60) days to become familiar with an application and prepare an adequate request for hearing/petition for intervention and contentions. License amendments and similar regulatory approvals for nuclear facilities, by contrast, are for the most part narrow in scope in terms of regulatory permission sought, and do not involve extensive amounts of documentary material. For these actions, a period substantially less than sixty (60) days should be sufficient to become familiar with an application and prepare an adequate request for hearing/petition for intervention and contentions. Nonetheless, the Commission will set the period for filing requests for hearing/petitions to intervene and contentions at sixty (60) days for these actions too.

With respect to licensing actions for radioactive materials, most of these actions do not usually involve extensive amounts of documentary material to review, and there is no statutory requirement for publication of notice of materials licensing actions in the Federal Register. Thus, the sixty (60) day period provided by § 2.309(b) should be more than ample time to review the application for a radioactive materials license and prepare a request for hearing/petition to intervene and proposed contentions. For those radioactive materials licensing actions that are sufficiently complex or broad in scope, it is the Commission's intention that NRC Web site notices would be provided for pre-application meetings and notifications of intent to file an application, and notice of docketing of the application. These notices would ordinarily be published only on the NRC Web site inasmuch as there is no statutory requirement for publication in the Federal Register, although the Commission could, as a matter of discretion, decide to publish notices of opportunity for hearing in the Federal Register in individual cases if circumstances tend to indicate that such publication is desirable. The Commission believes that sixty (60) days is more than ample time to review the application for a complex and/or broad scope radioactive materials license and prepare a request for hearing/petition to intervene and contentions, in view of Web site notice of pre-application meetings, availability of application-related documents for reading on the NRC Web site and/or download, and Web site notice of the filing of an application and acceptance of the application for docketing.

If a potential requestor/petitioner believes that the period provided for filing a request for hearing/petition to intervene is insufficient, it may file an appropriate motion with the Commission to extend the deadline for submission of requests/petitions and contentions. Although the Commission expects to exercise its discretion to extend such deadlines sparingly, the availability of such relief provides additional reason to set a sixty (60) day period for filing a request for hearing/petition to intervene for the usual cases. Therefore, the final rule provides for a sixty (60) day period from notice in the Federal Register (if no time is specified in the Federal Register notice) or on the NRC Web site at http://www.nrc.gov/​public-involve/​major-actions.html for filing of requests for hearing/petitions to intervene, together with proposed contentions.

Section 2.309(b)(1) incorporates the existing twenty (20) day period for filing a request for hearing/petition to intervene and contentions on license transfers that was formerly contained in § 2.1306 (which is being removed in the final rule). Although the proposed rule indicated that § 2.1306 would be removed, a corresponding requirement for filing within twenty (20) days was not included in proposed Subpart C. Section 2.309(b)(1) of the final rule corrects this oversight. Similarly, Section 2.309(b)(2) incorporates the existing thirty (30) day period for filing a request for hearing/petition to intervene in connection with the licensing of a HLW geologic repository. Although the proposed rule indicated that § 2.1014 would be removed, a corresponding requirement for filing within thirty (30) days was not included in proposed Subpart C. Section 2.309(b)(2) corrects this oversight. To accomplish these changes, paragraphs (b)(1) and (b)(2) of proposed § 2.309 are renumbered as (b)(3) and (b)(4), and paragraph (b)(3) is modified to remove the phrase, “the latest of.” Finally, § 2.309(b)(3)(iii) is modified to make clear that the sixty (60) day filing period applies where the Federal Register notice does not specify a time for filing requests/petitions.

Standing

A nuclear industry commenter indicated that § 2.309(d) should specify that a person must establish standing in order to participate in Commission proceedings. Two citizen group commenters stated that the NRC should not rely upon NRC case law for standing requirements, but should go to the broadest judicial standards.

The Commission does not believe that § 2.309 needs to specify that a showing of standing is the general rule for participation in NRC hearings, inasmuch as the basic structure of the rule requires a demonstration of standing in order to participate as a party (standing is presumed for a State, local government, and Federally-recognized Indian Tribe where a facility is located within its political boundaries). The only exception where intervention may be permitted, despite a lack of demonstration of standing, is discretionary intervention under § 2.309(e).

While Article III of the Constitution does not constrain the NRC hearing process, our hearings therefore, are not governed by judicially-created standing doctrine, see Envirocare of Utah, Inc. v. NRC, 194 F.3d 72 (D.C. Cir. 1999), the Commission nonetheless has generally looked to judicial concepts of standing where appropriate to determine those interests affected within the meaning of Section 189.a. of the AEA. Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 and 2), CLI-99-04, 49 NRC 185, 188 (1999), citing Portland Gen. Elec. Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 613-14 (1976). The Commission contemplates no change in this practice. Accordingly, no change to the rule has been made in this regard.

A commenter, while supporting the proposed § 2.309(d) requirement that a single designated representative of an affected State, local governmental body and affected, Federally-recognized Indian Tribe (Indian Tribe) be granted party status, suggested that the designated representative must take a position on any contentions for which the affected State, local governmental body or Indian Tribe wishes to participate. The Commission believes that the language of the proposed § 2.309(d) may have led the commenter incorrectly to conclude that the Commission would permit an affected State, governmental body, or affected Indian Tribe admitted as a party under § 2.309 to “participate as a party without taking sides.” On the contrary, the Commission intended to maintain the distinction between a State, local governmental body, or Indian Tribe participating as parties under § 2.309, versus their participation in a hearing as an “interested” State, local governmental body or Indian Tribe under § 2.315(c) (formerly § 2.715(c)). A Start Printed Page 2201State, local governmental body or Indian Tribe admitted as a party is entitled to the rights and bears the responsibilities of a full party, including the ability to engage in discovery, initiate motions, and take positions on the merits. By contrast, an “interested” State, local governmental body or Indian Tribe may participate in a hearing by filing testimony, briefs, and interrogating witnesses if parties are permitted by the rules to cross-examine witnesses, as provided in § 2.315(c). However, such participation is dependent on the existence of a hearing independent of the interested State, local governmental body or Indian Tribe participation, and such participation ends when the hearing is terminated. The Commission believes that the first sentence of proposed § 2.309(d)(2)(ii), which was intended to apply only to participation under § 2.315(c) as an “interested” State, local government body or Indian Tribe, may have led to the confusion with respect to the participation of a State, local governmental body or Indian Tribe as a party. Accordingly, this sentence is removed from § 2.309(d)(ii) and has been incorporated into § 2.315(c). Other minor conforming changes were made to §§ 2.309(d) and 2.315(c), to uniformly refer to “local governmental body,” and “affected Federally-recognized Indian Tribe.”

Discretionary Intervention

The Commission requested public comment on whether the standard for discretionary intervention should be extended by providing an additional alternative for discretionary intervention in situations when another party has already established standing and the discretionary intervenor may “reasonably be expected to assist in developing a sound record.” The Commission also requested public comments on whether, as an alternative to codification of the six-part Pebble Springs standard for discretionary intervention,[12] the Commission should adopt a simpler test for permitting discretionary intervention and the nature of such a standard.

Many commenters opposed codification of the discretionary intervention standard in proposed § 2.309(e), arguing, inter alia that: (1) The subjectivity of the standards will likely delay presiding officers in making determinations, (2) meaningful public participation will not be hampered by continuing to apply the Pebble Springs factors without codification, and (3) discretionary intervention is not consistent with the purpose of adjudicatory proceedings and would permit parties who cannot demonstrate a direct interest in the outcome of the proceeding to extend and broaden the scope of the proceeding. Two commenters argued that there should be a presumption against discretionary intervention such that it should be allowed only in extraordinary circumstances. On the other hand, a citizen group commenter indicated that the NRC should adopt a simpler test for permitting discretionary intervention: one standard should be if a petitioner lives within a community near a licensed facility or is affected by a licensed facility; another should be the ability to raise important health, safety, environmental, and legal issues that have previously not been considered or adjudicated by the NRC.

The Commission has decided to incorporate the Pebble Springs standard for discretionary intervention into the final rule to allow consideration of discretionary intervention when at least one other requestor/petitioner has established standing and at least one admissible contention so that a hearing will be held. Those criteria presume that discretionary intervention is an extraordinary procedure, and will not be allowed unless there are compelling factors in favor of such intervention. The Commission disagrees with the claim that the subjectivity of the standards will result in delays; in the past, the Pebble Springs standards have been applied by presiding officers and Licensing Boards without apparent delay. With respect to the claim that the lack of codification will not prevent meaningful public participation, the Commission notes that codification directly into the Commission's procedures for the conduct of adjudicatory proceedings provides clear notice to the public regarding the criteria that the Commission or presiding officer will apply in evaluating requests for discretionary intervention; members of the public who are unaware of the Pebble Springs decision would not be aware of the criteria that the Commission would apply in assessing a petition for discretionary intervention. The Commission disagrees with the assertion that discretionary intervention is inconsistent with the purposes of adjudicatory proceedings. The ultimate purpose of an adjudicatory proceeding is to resolve material issues with respect to an NRC regulatory action. The discretionary intervention standards, properly applied, should ensure that only persons and entities who can meaningfully contribute to the development of a sound record on contested matters will be admitted as parties. With respect to the citizen group commenters' suggestion that discretionary intervention should be permitted for any petitioner living within a community near a licensed facility, the Commission believes that such a criterion, if adopted, would most likely be met in every circumstance and would not account for the consideration of other relevant factors. With respect to the second criterion, the Commission agrees with the citizen group commenter that one factor (indeed, the most important factor, see Pebble Springs, 4 NRC at 617) to be considered in assessing requests/petitions for discretionary intervention is the capability of the requestor seeking discretionary intervention to contribute to the development of a sound record on important health, safety, environmental or legal issues. However, the Commission must also be mindful that there are other factors that must be considered, e.g., whether other parties already admitted in the hearing possess the same capability to represent that requestor's interest. In the Commission's view, the Pebble Springs criteria for assessing petitions for discretionary intervention provide for an appropriate balancing of the relevant competing factors. Therefore, the Commission declines to adopt the suggestion that discretionary intervention be based solely on consideration of the requestor's capability to contribute to the hearing.

Nonetheless, the Commission must emphasize that past case law and Commission policy make it clear that foremost among the factors in favor of granting discretionary intervention is whether the petitioner will assist in developing a sound record. See Pebble Springs, 4 NRC at 617 (1976). The most important factor weighing against intervention is the potential to inappropriately broaden or delay the proceeding. Id. The Commission fully expects that this case law and Commission policy will be followed in applying the codified discretionary intervention criteria.

Contentions

In a significant change from the existing regulations, the requirement to proffer specific, adequately-supported contentions in order to be admitted as a party is extended to informal proceedings under Subpart L. Under the existing Subpart L, petitioners need only describe “areas of concern about the licensing activity that is the subject Start Printed Page 2202matter of the proceeding” (10 CFR 2.1205(e)(3)). This sometimes leads to protracted “paper” litigation over ill-defined issues and the resulting development of an unnecessarily large, unfocused evidentiary record. The presiding officer is then burdened with the need to sift through the record to identify the basic issues and pertinent evidence necessary for a decision. The requirement to have specific contentions with a supporting statement of the facts alleged or expert opinion that provides the bases for them in all hearings should focus litigation on concrete issues and result in a clearer and more focused record for decision.

Several commenters supported the Commission's proposal to extend to Subpart L proceedings the requirement to proffer specific, adequately supported contentions rather than simply state issues. One commenter argued that the formulation of contentions is necessary to efficiently develop an accurate record in an informal hearing. The commenter also suggested that the Commission require that a contention show that the petitioner is entitled to relief. Other commenters opposed requiring contentions in informal proceedings, with one commenter asserting that the Commission could accomplish its goal by clarifying the “areas of concern” procedure, rather than forcing the public to bear the increased cost of formulating admissible contentions. Citizen group commenters also urged that the Commission adopt provisions permitting requestors/petitioners/parties to be able to freely amend or add new contentions based upon new information and documents such as the filing of the NRC staff's SER and EIS. Nuclear industry commenters, by contrast, argued that the Commission should instead take one or more actions to make clear that SERs and EISs are not necessary to resolution of contentions, and that the Commission take appropriate actions to ensure that the NRC staff is able to provide its safety position on any contention in a timely manner in a proceeding.

The Commission seeks to ensure that the adjudicatory process is used to address real, concrete, specific issues that are appropriate for litigation. The Commission continues to believe that a request for hearing/petition to intervene should include proposed contentions. The Commission should not have to expend resources to support the hearing process unless there is an issue that is appropriate for, and susceptible to, resolution in an NRC hearing. This principle applies regardless of whether a hearing is to be conducted under informal or formal procedures. The § 2.309(f) contention requirement is intended to support an early NRC determination whether there are issues that are appropriate for and susceptible to NRC resolution with respect to an NRC regulatory/licensing action. The suggestion for clarifying the “areas of concern” approach would not accomplish that goal, inasmuch as requestors/petitioners would not have to show at the outset whether there is a real, cognizable dispute amenable to resolution by the NRC. Nonetheless, the Commission does not agree with the commenter's suggestion that still another requirement—that a contention show that the petitioner is entitled to relief, should be added to the petitioner's contention pleading burden. Such a criterion overlaps the requirement in § 2.309(d)(1)(iv) with respect to standing, requiring the request/petition to address “the possible effect of any decision or order that may be issued in the proceedings on the requestor's/petitioner's interest.” Because a new criterion in § 2.309(f) on this matter would place an unneeded additional requirement on the contention pleading provisions, the Commission declines to adopt the commenter's suggestion.

The Commission also declines to adopt the thrust of the suggestions to allow free amendment and addition of contentions based upon new information such as the SER. The NRC staff has the independent authority, indeed the responsibility, to review all safety matters. See, e.g., S. Cal. Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-680, 16 NRC 127, 143 (1982); Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), ALAB-678, 15 NRC 1400, 1420, n.36 (1982); Philadelphia Elec. Co. (Limerick Generating Station, Units 1 and 2), ALAB-778, 20 NRC 42, 48 (1984). The adequacy of the applicant's license application, not the NRC staff's safety evaluation, is the safety issue in any licensing proceeding, and under longstanding decisions of the agency, contentions on the adequacy of the SER are not cognizable in a proceeding. Curators of the Univ. of Mo., CLI-95-1, 41 NRC 71, 121-22 (1995), affirmed on motion for consideration, CLI-95-8, 41 NRC 386, 396 (1995), La. Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-812, 22 NRC 5, 55-56 (1985); Pac. Gas Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-728, 17 NRC 777, 807 (1983), review denied, CLI-83-32, 18 NRC 1309 (1983). If information in the SER bears upon an existing contention or suggests a new contention, it is appropriate for the Commission to evaluate under § 2.309(c) the possible effect that the admission of amended or new contentions may have on the course of the proceeding. The commenters' proposal appears to be based upon the misapprehension that, absent consideration in a hearing, safety concerns will not be addressed by the NRC. On the contrary, the NRC may not issue a license until all appropriate safety findings have been made. See, e.g., Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), ALAB-678, 15 NRC 1400, 1420 n.36 (1982), citing S.C. Elec. & Gas Co. (Virgil C. Sumner Nuclear Station, Unit 1), ALAB-642, 13 NRC 881, 895-896 (1981). Furthermore, any member of the public who believes that he or she has significant safety information may, at any time, submit a request for NRC action under 10 CFR 2.206 to modify, suspend, or revoke a license, or for any other action (e.g., refuse to issue a license) that may be appropriate. In sum, the hearing process is directed at resolving issues identified and conceptualized by an interested member of the public, not at supervising the NRC staff's independent safety review.

With respect to the EIS, the current regulations in 10 CFR Part 51 provide for hearing consideration of environmental matters. See 10 CFR 51.94. Accordingly, § 2.309(f)(2) will control the admission of amended and new contentions based upon issuance of the NRC staff's EIS, and § 2.337(g) will govern the introduction of the EIS or EA into evidence in a proceeding.

One commenter suggested that the Commission adopt a new § 2.309(f)(3) to specify, where a petitioner adopts an admitted contention of another party, that the presiding officer or Licensing Board must require one of the petitioners to act as lead. The Commission agrees that a new § 2.309(f)(3) should be adopted to include such a requirement, and concludes that the paragraph should also include an analogous requirement for a lead representative where two or more requestors/petitioners co-sponsor a contention.

Timing of Identification of Appropriate Hearing Procedures

In the proposed rule, § 2.309(g) would require that the request for hearing/petition to intervene address the question of the type of hearing procedures (e.g., formal hearings under Subpart G, informal hearings under Subpart L, or “fast track” informal procedures under Subpart N) to be used for the proceeding. The Commission Start Printed Page 2203indicated that this would not be a requirement for admission as a party to the proceeding, but a requestor/petitioner who fails to address the hearing procedure issue would not later be heard to complain in any appeal of the hearing procedure selection ruling. The Commission requested public comment on whether, if the Commission adopts the alternative proposal that requests for hearing be filed within thirty (30) days of appropriate notice, but that contentions be filed later (e.g., within seventy-five (75) days of such notice), the Commission should require the petitioner to set forth its views on appropriate hearing procedures at the deadline for filing contentions, rather than in the petition/request for hearing. Commenters did not specifically address the Commission's question, and no changes were made in the final rule with respect to this matter.

Answers and Replies

In the proposed rule, § 2.309(h) would allow the applicant or licensee and the NRC staff twenty-five (25) days to file written answers to requests for hearing/petitions to intervene, and would permit the petitioner to file a written reply to the applicant/licensee and NRC staff answers within 5 days after service of any answer. No other written answers or replies would be entertained. The Commission sought public comment on whether the proposed time limits for replies and answers should be expanded.

A commenter representing a number of organizations indicated that the five (5) days allotted in § 2.309(h)(2) is too short a time to respond to NRC, applicant or licensee answers. Instead, the rule should provide for at least ten (10) days to respond. By contrast, NEI argued that the periods allowed in the proposed rule for answering requests for hearing/petitions to intervene and replies should be expanded only in situations where time limits are “unworkable.”

The Commission has decided to provide seven (7) days for a requestor/petitioner to respond to an applicant/licensee and NRC staff answer on a request for hearing/petition to intervene. Any reply should be narrowly focused on the legal or logical arguments presented in the applicant/licensee or NRC staff answer; a seven-day period to prepare such a focused reply is not unreasonable. If there are special circumstances, the requestor/petitioner may request a short extension from the presiding officer.

A commenter suggested that Subpart C should provide that the presiding officer issue a decision on standing and admissibility of contentions within 45 days of the completion of the parties' filings on those issues. The Commission agrees with this suggestion, and a new paragraph (i) has been added to § 2.309 requiring the presiding officer to issue a decision on standing and admissibility of contentions within forty-five (45) days of the completion of the parties' filings. The Commission believes that this is an appropriate and reasonable time period for a presiding officer to issue a decision on standing and admissibility of contentions, considering the thoroughness of the petitions and responses. Additional time beyond the 45 days may be provided if circumstances warrant.

Section 2.310—Selection of Hearing Procedures

(1) Subpart G Hearing Procedures.

The Commission requested comment on the criteria for identification of cases where the use of Subpart G hearing procedures would be of benefit. Comments will be discussed under each criterion in the proposed rule.

Uranium Enrichment Facilities. The single exception to the Commission's broad authority to select hearing procedures involves proceedings on licensing the construction and operation of uranium enrichment facilities. Section 193 of the AEA requires that hearings on uranium enrichment facility construction and operation be “on-the-record,” thus requiring formal trial-type hearing procedures to be used. Section 2.310(b) of the proposed rule reflected this requirement by specifying that a proceeding on licensing the construction and operation of a uranium enrichment facility must be conducted using the hearing procedures of Subpart G. No comments were received on this criterion and no change to the substance of the proposed rule was made in this regard. However, the Commission reorganized § 2.310 in the final rule. Accordingly, § 2.310(c) in the final rule specifies the use of Subpart G hearing procedures in proceedings on the licensing of the construction and operation of uranium enrichment facilities.

Enforcement Matters. In its July 22, 1999 Staff Requirements Memorandum on SECY-99-006, Reexamination of the NRC Hearing Process, the Commission noted that Subpart G hearing procedures would seem to be appropriate for hearings on enforcement actions. Several participants in the October 1999 hearing process workshop agreed, noting that Subpart G hearing procedures would give the entity subject to the proposed enforcement action the opportunity to fully confront the proponent of the proposed enforcement action. The Commission requested comments on the proposal to require the application of Subpart G hearing procedures in hearings involving enforcement matters and views on whether and when to allow the use of less formal hearing procedures for these matters.

All commenters agreed that Subpart G hearing procedures should be available in enforcement cases, with one commenter noting that Subpart G should be available in enforcement actions against both individuals and licensees. However, one commenter asserted that enforcement matters should be the only proceedings where Subpart G procedures should be applied. Two commenters stated that individuals and licensees should be able to request use of informal procedures in enforcement cases. One of those commenters indicated that the NRC staff should not have “veto power” over a licensee's choice to use Subpart N in enforcement and civil penalty cases, while the other implicitly suggested that the NRC staff should not be able to choose to use more informal procedures.

The Commission continues to believe that Subpart G hearing procedures should be applied in enforcement actions against both individuals and licensees. The Commission does not agree with the suggestion that the subject of an enforcement action alone should be able to choose informal procedures. As one commenter pointed out, enforcement actions usually involve making determinations of intent and credibility, for which the use of Subpart G hearing procedures—in particular, cross-examination—are especially suited. On the other hand, if all parties agree to the use of one of the more informal hearing procedures in an enforcement proceeding (e.g., Subpart L or Subpart N), there does not appear to be any significant public policy mitigating against such a choice by all parties. Therefore, the substance of the final rule remains unchanged from the proposed rule in providing that all parties must agree and jointly request an enforcement proceeding to be conducted under the procedures of Subpart L or Subpart N.

High Level Waste (HLW) Repository Licensing. Until the adoption of Subpart L in 1989 (54 FR 8276; Feb. 28, 1989), all proceedings conducted by the AEC and NRC were formal adjudicatory hearings. Consistent with that established practice, in 1978 the NRC declared that it would hold Subpart G hearings on an application to construct and operate a repository for HLW. In Start Printed Page 2204final rules published in 1981, the Commission provided for a mandatory Subpart G hearing at the construction authorization stage and for an opportunity for a Subpart G hearing before issuing a license to receive and possess HLW at a geologic repository. Subsequently, Congress enacted the Nuclear Waste Policy Act of 1982, 42 U.S.C. 10101 et seq. That law does not include any specific hearing requirements. Instead, it seems to contemplate, in Section 114, that the NRC will apply existing laws applicable to the construction and operation of nuclear facilities. In sum, there is no statutory requirement for a formal, on-the-record hearing using Subpart G procedures on a HLW repository, but without a rule change, the NRC's regulations would require a Subpart G hearing.

Although the Commission generally seeks to use more informal procedures for its hearings, the proposed rule reflected the Commission's tentative conclusion that the hearing procedures of Subpart G should be used in proceedings for the initial authorization to construct a HLW repository, and proceedings for issuance of an initial license to receive and possess HLW at a HLW repository. The initial authorization of construction of a HLW repository and the initial issuance of a license to receive and possess HLW are likely to be highly contested. The President's recommendation to proceed with repository development at the Yucca Mountain site has been upheld by Congress. The adjudication is likely to involve multiple parties, including the State of Nevada, as well as possible participation by other States, local governmental bodies, and Federally recognized Indian Tribes. The issues to be adjudicated will undoubtedly involve a large number of disputes over material facts. Moreover, the Commission has long taken the position that for this unique, first-of-its-kind proceeding, it would provide an on-the-record hearing under Subpart G for repository licensing, thereby creating certain public expectations on the hearing procedures to be used for this particular proceeding. A change in Commission position now to permit the use of more informal procedures for authorizing construction of a HLW geologic repository and issuance of a license to receive and possess HLW at a geologic repository operations area would not advance public confidence in the Commission's repository licensing process. Based on these considerations, § 2.310(e) of the proposed rule provided that the initial application for authorization to construct a HLW repository, and initial issuance of a license to receive and possess HLW at a geologic repository operations area use the hearing procedures of Subpart G. Section 2.310(e) of the proposed rule provided that amendments to the construction authorization for the HLW repository, and amendments to the application and/or license to receive and possess HLW at a geologic repository operations area should be subject to the same criteria as other proceedings in determining what hearing procedures will be used. The Commission requested public comment on these proposals.

In general, industry commenters opposed the use of Subpart G procedures for initial authorization to construct a geologic repository and issuance of the initial license to receive and possess HLW at a geologic repository. One industry commenter stated that the nature and subject matter of the HLW proceedings are similar to those involving reactor licensees and there is no reason to apply different hearing procedures; accordingly, the commenter argued that HLW proceedings should be conducted under proposed Subparts L or N. Another commenter indicated that the Commission should not prejudge the nature of the issues that will be raised regarding the HLW repository and instead should maintain flexibility to decide, based on the nature of contentions at the time they are raised, what kind of hearing procedure will best serve the interests of the stakeholders. Two citizen group commenters, while not directly addressing the type of procedure to be used in HLW repository authorizations, argued that it is inconsistent for the Commission to provide formal hearings for HLW authorizations, while moving to “deformalize” nuclear power plant and materials licensing proceedings.

The Commission continues to believe that, while not required by statute, any hearings in connection with the initial authorization to construct a HLW geologic repository, and the initial license to receive and possess HLW at a geologic repository operations area should be held using Subpart G hearing procedures. None of the comments received on this subject raised any new arguments or considerations that were not already considered by the Commission in making its tentative determination for the proposed rule. Accordingly, the hearing procedure selection provision in § 2.310(f) specifies the use of Subparts G and J hearing procedures for the initial authorization to construct a high-level radioactive waste geologic repository, and initial issuance of a license to receive and possess high-level waste at a geologic repository operations area. In response to a commenter, the Commission removed a typographic error that resulted in a partial sentence in this paragraph of the proposed rule. The Commission also modified the language to clarify that Subpart G proceedings apply only to the initial authorization to construct and to initial issuance of the license to receive and possess HLW.

Complex Issues in Reactor Licensing. Section 2.310(c) of the proposed rule included a criterion that would call for the use of the hearing procedures of Subpart G in those reactor licensing proceedings that involve a large number of complex issues which the presiding officer determines can best be resolved through the application of formal hearing procedures. The Commission requested public comments on the appropriateness of this proposed “numerous/complex issues” criterion, and representative examples of the type of “complex issues” that would benefit from the use of Subpart G hearing procedures. The Commission also requested comment on whether this criterion should be modified to instead provide for Subpart G hearings in initial power reactor construction permit proceedings, initial operating license proceedings, combined license issuance proceedings under 10 CFR Part 52, Subpart C, and hearings associated with authorizations to operate under a combined license under 10 CFR 52.103.

The nuclear industry commenters on this matter uniformly opposed the proposed numerous/complex issues criterion. Several commenters indicated that the proposed standard is too subjective and would be difficult to interpret and apply, consequently leading to overuse of this criterion. Another commenter argued that the criterion undermines the advantages to be derived from less formal procedures and creates additional opportunities for argument and litigation over procedural matters. A third commenter suggested that it is not always true that “very complex cases” will benefit from formal hearings, pointing out that it is the nature of the issues to be decided that determines whether formal procedures are appropriate. No citizen group specifically addressed the “numerous/complex issues” criterion, although their general support for Subpart G procedures for all nuclear power plant licensing proceedings implies their opposition to this criterion.

Upon reconsideration, the Commission agrees that the proposed Start Printed Page 2205“numerous/complex issues” criterion may not be well-suited for determining whether the procedures of Subpart G should be used in a given proceeding. Rather, the Commission agrees with the thrust of the commenters opposing this criterion that, inasmuch as neither the AEA [13] nor the APA require the use of the procedures provided in Subpart G, they should be utilized only where the application of such procedures are necessary to reach a correct, fair and expeditious resolution of such matters. In the Commission's view, the central feature of a Subpart G proceeding is an oral hearing where the decisionmaker has an opportunity to directly observe the demeanor of witnesses in response to appropriate cross-examination which challenges their recollection or perception of factual occurrences. This also appears to be the position of several citizen group commenters, judging by the reasons given for their opposition to greater use of Subpart L procedures. Hence, the Commission focused on criteria to identify those contested matters for which an oral hearing with right of cross-examination would appear to be necessary for a fair and expeditious resolution of the contested matters. Common sense, as well as case law, lead the Commission to conclude that oral hearings with right of cross-examination are best used to resolve issues where “motive, intent, or credibility are at issue, or if there is a dispute over the occurrence of a past event.” See Union Pac. Fuels v. FERC, 129 F.3d 157, 164 (DC Cir. 1997), citing La. Ass'n of Indep. Producers & Royalty Owners v. FERC, 958 F.2d 1101, 1113 (DC Cir.1992). In Union Pacific Fuels, the Court of Appeals for the DC Circuit concluded that a FERC rate determination based upon a determination of the relative importance of facilitating wellhead competition and preserving a party's risk allocation was a policy issue (as opposed to a factual and credibility issue) whose resolution would not be facilitated by a trial-type hearing. Id. Courts reached similar conclusions in a number of other cases. See, e.g., SBC Communications, Inc. v. FCC, 56 F.3d 1484, 1496-97 (DC Cir. 1995) (disputed issues on legal and economic conclusions concerning market structure, competitive effect, and the public interest do not require oral evidentiary hearing), citing United States v. FCC, 652 F.2d 72, 89-90 (DC Cir. 1980) (en banc); Penobscot Air Servs., Ltd. v. FAA, 164 F.3d 713, 722-725 (1st Cir. 1999) (due process does not require formal evidentiary hearing where historical facts are undisputed, and agency decision involved interpretation and application of statutes, regulations and policies); Chemical Waste Mgmt., Inc. v. EPA, 873 F. 2d 1477, 1183-1185 (DC Cir. 1989) (due process does not require formal evidentiary hearing where issues do not involve determinations of witness credibility but instead turn on technical data and policy judgements). In Califano v. Yamasaki, 442 U.S. 682 (1979), the U.S. Supreme Court held that where the relevant statute requires an agency assessment of “fault” and a determination whether recoupment of erroneous payments from a social security beneficiary would be “against equity and good conscience,” an opportunity for an oral hearing is required. The Supreme Court stated:

“[F]ault” depends on an evaluation of “all pertinent circumstances” including the recipient's “intelligence * * * and physical and mental condition” as well as his good faith. 20 CFR § 404.507 (1978). We do not see how these can be evaluated absent personal contact between the recipient and the person who decides his case. Evaluating fault, like detrimental reliance, usually requires an assessment of the recipient's reliance, usually an assessment of the recipient's credibility, and written submissions are a particularly inappropriate way to distinguish a genuine hard luck story from a fabricated tall tale. See Goldberg v. Kelly, 397 U.S., at 269.

Califano, 442 U.S. at 696-97.[14]

In sum, the Commission has concluded that the procedures in Subpart G should be utilized in any nuclear power plant licensing proceeding for the resolution of a contention involving: (1) Issues of material fact relating to the occurrence of a past activity, where the credibility of an eyewitness may reasonably be expected to be at issue, and/or (2) issues of motive or intent of the party or eyewitness material to the resolution of the contested matter. Section 2.310(d) specifies the use of Subpart G hearing procedures in these circumstances.

(2) Informal Hearing Procedures.

Expansion of Spent Fuel Storage Capacity. Subpart K contains “hybrid” hearing procedures for use in proceedings on the expansion of spent fuel storage capacity at civilian nuclear power reactors.

A commenter suggested that proposed § 2.310(d) should be amended to specifically state that Subpart L applies to licenses or amendments to expand spent fuel storage capacity unless a party requests the use of Subpart K, or if all parties agree to apply Subpart N. The Commission agrees with the commenter, inasmuch as § 2.1101 specifically states that the procedures of Subpart K are to be used “upon request of any party[.]” Accordingly, appropriate changes have been made to § 2.310(e), which now provides that proceedings for the expansion of spent fuel storage capacity at civilian nuclear power reactors will be governed by Subpart L, unless a party requests the use of Subpart K.

License Transfers. The Commission is retaining existing Subpart M, which contains informal hearing procedures for use in proceedings involving reactor or materials license transfers. Subpart M requires the use of its hearing procedures for all license transfer proceedings for which a hearing request has been granted unless the Commission directs otherwise. The hearing procedure selection provision in § 2.310(g) of the final rule (§ 2.310(f) in the proposed rule) specifies the use of Subpart M hearing procedures in license transfer proceedings. No significant comments were received on this proposal.

Other Proceedings. Section 2.310(a) (§ 2.310(g) of the proposed rule) applies the hearing procedures of the new Subpart L to all other proceedings not specifically named, i.e., proceedings involving hearings on the grant, renewal, licensee-initiated amendment or termination of licenses and permits subject to 10 CFR parts 30, 32 through 35, 36 (the final rule adds part 36, which was erroneously omitted in the proposed rule), 39, 40, 50, 52, 54, 55, 61, 70 and 72. In addition, Subpart L procedures would be used in nuclear power plant licensing proceedings for the resolution of contentions which do Start Printed Page 2206not meet the criteria set forth in section 2.310(d) for use of Subpart G hearing procedures. Under this provision, Subpart L procedures would be used, as a general matter, for hearings on power reactor construction permit and operating license applications under parts 50 and 52, power reactor license renewal applications under part 54, power reactor license amendments under part 50, reactor operator licensing under part 55, and nearly all materials and spent fuel licensing matters. This is a significant change from current hearing practice for reactor licensing matters. Under existing practice, proceedings on applications for reactor construction permits, operating licenses and operating license amendments have used the hearing procedures of Subpart G. Similarly, in the Statement of Considerations for the 1991 rule on reactor license renewal, the Commission stated that it would provide an “opportunity for a formal public hearing” on reactor license renewal applications (56 FR 64943, 64946; Dec. 13, 1991). The hearing procedures of Subpart L could also be applied in hearings involving enforcement matters if all parties agree.

As discussed earlier with respect to the Commission's proposed move away from use of Subpart G trial-type hearing procedures, significant comments were received that both supported and opposed this direction. The Commission has decided, also for the reasons discussed earlier, that greater use of more informal hearing procedures is desirable and has decided to adopt in large part the proposed rule's provisions expanding the use of Subpart L hearing procedures.

Subpart N—Fast Track Procedures. Proposed § 2.310(h) would apply the informal “fast track” hearing procedures of new Subpart N in any proceeding (other than those designated in § 2.310(a)-(g) as requiring other procedures) in which the hearing is estimated to take no more than 2 days to complete or where all parties agree to the use of the “fast track” hearing procedures. The Commission requested comments and suggestions on the appropriate criteria for the use of Subpart N.

A citizen group commenter asserted that the Commission should not adopt a “fast track” hearing procedure, arguing that to presuppose that safety issues can be handled in a fast track proceeding “invites disaster.” The Commission continues to believe there is a need for an expedited hearing track to provide for the expeditious resolution of issues in cases where the contentions are few and not particularly complex and might be efficiently addressed in a short hearing using simple procedures and oral presentations. The Commission views the “fast track” procedures of Subpart N as particularly useful for some reactor operator licensing cases or for small materials licensees cases where the parties want to be heard on the issues in a simple, inexpensive, informal proceeding that can be conducted quickly before an independent decisionmaker. The commenter provided no basis for the assertion that proper application of fast-track procedures would result in erroneous resolution of public health and safety issues. Therefore, the Commission declines to adopt the commenter's suggestion. The hearing procedure selection provision in § 2.310(h) specifies the circumstances for which Subpart N hearing procedures may be used.

Reorganization of § 2.310

The Commission has reorganized and changed the ordering of paragraphs within § 2.310 from that in the proposed rule. Paragraph (a) (paragraph (g) in the proposed rule) states the general rule that, unless otherwise determined through the application of paragraphs (b) through (h), the listed proceedings are to be conducted under Subpart L. Paragraphs (b) through (h) identify the type of proceeding (e.g., enforcement proceeding) and the subpart whose procedures are to be used. Paragraph (i) indicates that in design certification rulemaking where the Commission in its discretion decides to hold a hearing under § 52.51, the hearing is to be conducted under Subpart O (legislative hearing). Paragraph (j) provides that in proceedings where the Commission grants a petition certified to it under § 2.335(b) seeking permission to consider Commission rules and regulations in a hearing, the Commission may, in its discretion, conduct a “legislative” hearing under Subpart O.

Section 2.311—Interlocutory Review

A commenter suggested that § 2.311(d) be revised to clarify that the only permissible grounds for challenging an order selecting a hearing process is that the selection was “erroneous,” and that a 10-day time limit should be placed on the ability to appeal the order selecting a hearing procedure. While the Commission agrees that § 2.311(d) should be clarified, the term, “erroneous,” does not accurately describe the basis for an appeal of an order selecting hearing procedures. Therefore, the Commission has instead decided to modify § 2.311(d) to refer to hearing procedure selections that were “selected in clear contravention of the criteria set forth in § 2.310.” The Commission also agrees that a 10-day limit should be adopted for filing of an appeal of an order selecting a hearing procedure, and § 2.311(d) has been appropriately modified in the final rule.

Section 2.313—Designation of Presiding Officer, Disqualification, Unavailability, and Substitution

As discussed earlier, the Commission decided to provide that hearings conducted under Subparts G, J, K, L and N should be presided over by either a single administrative law judge (rather than a single administrative judge) or an Atomic Safety and Licensing Board, but that hearings under Subparts M and O may be presided over by the Commission, a single administrative law judge, a single administrative judge, an Atomic Safety and Licensing Board, or other designated person. To accomplish this, paragraph (a) is modified to include appropriate references to an administrative law judge, and a sentence is added which states that only the Commission may designate the presiding officer in Subpart O legislative hearings. A related change to § 2.4 adding a definition of “presiding officer” is discussed earlier. The Commission is also deleting the provision in former § 2.1207(a) requiring the Chairman of the Atomic Safety and Licensing Board Panel (Chief Administrative Judge) to appoint a single member of the Atomic Safety and Licensing Board Panel as a presiding officer. As a result, the Commission is changing the discretion of the Chief Administrative Judge, and provides him or her with the discretion to choose either an Atomic Safety and Licensing Board, or an administrative law judge for a hearing conducted under Subparts G, J, K, L or N, and either an Atomic Safety and Licensing Board, an administrative law judge, or administrative judge for a hearing conducted under Subpart M.

The Commission is making other changes to simplify and clarify the rule. Paragraphs (b) and (c) of the proposed rule, both of which address disqualification, are combined into a single paragraph (b), and redesignated as subparagraphs (b)(1) and (b)(2). In redesignated paragraph (b), the phrase, “board member,” is changed to “presiding officer or member of the Licensing Board,” in order to clarify the criteria for withdrawal of a single presiding officer who is not a member of a Licensing Board. Finally, paragraph Start Printed Page 2207headings are added to each paragraph of § 2.313.

Section 2.314—Appearance and Practice Before the Commission in Adjudicatory Proceedings

A commenter proposed that § 2.314(b) be amended to also refer to the “entity” on whose behalf a representative appears. The Commission agrees, and has modified § 2.314(b) accordingly.

Section 2.315—Participation by a Person Not a Party

A commenter proposed that § 2.315(d) be clarified that a person who is not a party who wishes to file an amicus brief should file the motion seeking leave to file together with the amicus brief. The Commission agrees and paragraph (d) has been modified to make that clear.

The Commission has also modified Section 2.315(a) to make clear that a person, even if affiliated or represented by a party (e.g., a member of an organization who is a party in a proceeding), may make a limited appearance statement.

Section 2.319—Power of Presiding Officer

A commenter proposed that § 2.319(d) provide the presiding officer with the power to strike written records and oral testimony for cumulative, irrelevant or unreliable material. The Commission agrees with the apparently-underlying view of the commenter that the presiding officer should have authority to limit and/or preclude, as applicable, testimony or evidence that is cumulative, irrelevant or unreliable. However, the Commission believes that § 2.319(e), which permits the presiding officer to “restrict irrelevant, duplicative, or repetitive evidence and/or arguments” largely provides such authority to the presiding officer. However, the Commission has added the word, “unreliable” to § 2.319(e). Furthermore, because the type of arguments, evidence, and information that may be limited or stricken by the presiding officer are the same in § 2.319(d) and (e), both paragraphs have been conformed to use the same terminology, i.e., “irrelevant, immaterial, unreliable, duplicative or cumulative.”

The final rule includes two additional provisions in § 2.319 which explicitly provide the presiding officer with authority to rule on motions (analogous to the provision in former § 2.730(e)), and authority to issue orders necessary to carry out its responsibilities and duties under this part.

Section 2.323—Motions

Proposed § 2.323 incorporated the provisions in § 2.730 in Subpart G on the general form, content, timing, and requirements for motions and responses to motions. The Commission requested public comment on whether § 2.323(a) should specify a time limit of ten (10) days for filing of motions, beginning from the action or circumstance that engenders the motion. One nuclear industry commenter indicated that § 2.323 should set time limits on the filing of motions, preferably requiring them to be filed no later than ten (10) days after the occurrence or circumstance from which the motion arises. However, another nuclear industry commenter opposed setting a time limit because of the “broad nature” of motions. The Commission has decided that expeditious management of a hearing requires that motions be filed reasonably promptly after the underlying circumstances occur which engender a motion. Accordingly, a ten (10) day limit for filing motions is included in the final version of § 2.323(a).

Proposed § 2.323(e) included a standard for evaluating motions for reconsideration, viz., compelling circumstances, such as the “existence of a clear and material error in a decision, which could not have reasonably been anticipated, that renders the decision invalid” (this standard is also reflected in proposed § 2.344(b)). The Commission requested public comment on whether this “compelling circumstances” standard in the proposed rule should be adopted or eliminated from the final rule. A commenter supported inclusion of a “compelling circumstance” standard for reconsideration embodied in proposed § 2.323(e). Another commenter instead argued that the current standard for motions for reconsideration, as defined by NRC case law, should be retained. The existing standard allows for motions requesting the presiding officer to reexamine existing evidence that may have been misunderstood or overlooked, or to clarify a ruling on a matter. The Commission has decided that the “compelling circumstances” standard should be utilized for motions for reconsideration. This standard, which is a higher standard than the existing case law, is intended to permit reconsideration only where manifest injustice would occur in the absence of reconsideration, and the claim could not have been raised earlier. In the Commission's view, reconsideration should be an extraordinary action and should not be used as an opportunity to reargue facts and rationales which were (or should have been) discussed earlier.

Finally, the proposed rule addressed the referral of rulings and certified questions by the presiding officer to the Commission. With regard to referrals, proposed § 2.323(f) would provide for referrals of decisions or rulings where the presiding officer determines that the decision or ruling involves a novel issue that merits Commission review at the earliest opportunity. The proposed section also differs from the existing requirements by allowing any party to file with the presiding officer a petition for certification of issues for early Commission review and guidance. This is consistent with the Commission's direction in the 1998 Statement of Policy on Adjudicatory Proceedings stating that issues or rulings involving novel questions which would benefit from early Commission guidance should be certified to the Commission. No comments were received on this provision, and the Commission adopts § 2.323(f) without change.

Section 2.327—Official Recording; Transcript

In response to a commenter, in paragraph (c) the word, “therefore,” is changed to “therefor.”

Section 2.332—General Case Scheduling and Management

Section 2.332 of the proposed rule would have required a presiding officer to consult with the parties early in the proceeding in order to set schedules, establish deadlines for discovery and motions, where appropriate, and set the ground rules for the control and management of the proceeding. The proposed rule also addressed integration of the NRC staff's preparation of its safety and environmental review documents into the hearing process schedules. The Commission requested comment on the case management provisions proposed in this section and welcomed suggestions for additional case management techniques.

Commenters proposed a variety of requirements: That the presiding officer provide copies of scheduling orders and modifications to scheduling orders to the Commission; that the relative resources of the parties be considered under § 2.332(b); that the presiding officer hold scheduling hearings within thirty (30) days of the commencement of every hearing; and a process for appeal directly to the Commission if a petitioner believes that a presiding officer is grossly mismanaging a hearing.

In the Commission's view, these suggestions are either unnecessary, or would have the Commission become too Start Printed Page 2208closely involved in the detailed management of individual hearings. For example, the Commission does not believe that it should be monitoring on a day-by-day basis the scheduling orders of the presiding officer; the Commission has already provided for time limits and suggested schedules, as applicable, in Part 2. Any party that is aggrieved by the scheduling determinations of a presiding officer or by the failure of a presiding officer to adhere to the general scheduling guidance of the Commission may always submit an appropriate motion to the Commission. Accordingly, the Commission declines to adopt these case management suggestions.

Section 2.332(a)(1) was corrected in the final rule to indicate that the presiding officer's scheduling order may also modify the times for disclosure under § 2.336.

Section 2.333—Authority of the Presiding Officer To Regulate Procedure in a Hearing

In response to a comment that the Commission's Policy Statement on the conduct of adjudications should be codified, the Commission has determined that a requirement for filing of cross-examination plans in conjunction with requests/motions to conduct cross-examination should be added to the generally-applicable provisions of Subpart C. Accordingly, § 2.333(c) has been added to the final rule, requiring the presiding officer to require each party or participant who wishes to conduct cross-examination to file a cross-examination plan. The provisions in § 2.333(c) were drawn from § 2.711(c). In addition, the Commission added paragraph (d) in the final rule requiring the presiding officer to ensure that each party or participant who is permitted to conduct cross-examination conducts its cross-examination in conformance with its cross-examination plan. Finally, the Commission modified paragraph (a) to authorize the presiding officer to strike unreliable or immaterial evidence.

Section 2.334—Schedules for Proceedings

In response to a commenter, the word “residing” was changed to “presiding” officer.

Section 2.336—General Discovery

In response to comments, the Commission modified § 2.336(a)(1) to make clear that the names of only those experts whom the party may rely upon as a witness need be disclosed. Paragraph (a)(4) was deleted, inasmuch as the scope of documents to be provided under the proposed rule, viz., those that “provide direct support for, or opposition to, the application or other proposed action that is the subject of the proceeding,” extended beyond the scope of the contested issues in the proceeding. On the other hand, paragraph (b)(5) was revised to clarify that the NRC staff must provide a list of “otherwise-discoverable” documents for which the NRC staff asserts a claim of privilege or protected status.

In reviewing § 2.336, the Commission determined that the requirement in paragraph (a)(2) for disclosures of persons whom a party believes “is likely to have discoverable information relevant to the admitted contentions” is unnecessary, inasmuch as further discovery under Subpart C is not available. Accordingly, the final rule does not include this disclosure provision (however, this disclosure requirement is retained in § 2.704(a)(1) of Subpart G, inasmuch as Subpart G provides opportunities for additional discovery).

The Commission modified § 2.336(b) to make clear that the NRC staff's obligations with respect to a hearing file ordinarily do not apply to proceedings conducted under Subpart J. In Subpart J, the hearing file would essentially duplicate the function of the electronic docket and the LSN; hence there is no reason for the NRC staff to also maintain a hearing file.

Section 2.337—Evidence at a Hearing

A commenter suggested that the provisions of § 2.711(e), (f), (g), (h) and (i) of the proposed rule should be relocated to Subpart C, inasmuch as these are general provisions governing evidence which apply to all hearing tracks. Proposed § 2.711(e) (f), (g), (h) and (i) were drawn from former § 2.743(c) through (f), (g) and (i), and address matters relating to evidence, including admissibility, objections, and offers of proof. The Commission generally agrees with the commenter, and has relocated the provisions in proposed § 2.711 from Subpart G to Subpart C in a new § 2.337 (with proposed §§ 2.337 through 2.347 being renumbered in the final rule).

However, in response to comments submitted on both the 1998 Policy Statement on adjudicatory procedures and the proposed rule expressing concerns about delays in hearings associated with the submission of SERs and EISs, the Commission has reconsidered its current regulatory provisions with respect to NRC staff documents, including the provision in proposed § 2.711(i). As discussed earlier, commenters on the 1998 Policy Statement were concerned that late completion of the SER and EIS could result in delays in discovery and the conduct of the hearing. In addition, a nuclear industry commenter on the proposed rule suggested that the regulations should specifically direct that final NRC staff documents not be required before adjudication of safety and environmental contentions; and that the Commission establish procedures for scheduling orderly and final resolution of contested health and safety and environmental issues in adjudicatory proceedings independent of the NRC staff's scheduled completion of issuance of an SER or EIS. The commenter argued that, if necessary, the NRC staff could be directed to prepare statements of position or “partial” SERs or EISs on contested issues.

The Commission recognizes that the language of proposed § 2.711(i) (former § 2.734(g)), may be read to require the submission of the SER and EIS in a proceeding even if there are no contentions bearing on one of those documents, or if the NRC staff was prepared to proceed on a safety matter in advance of completion of a final SER. The Commission also recognizes that, but for the language of that paragraph, the staff could prepare testimony and take a final position on contested safety matters if its safety review has been completed in areas relevant to those contested matters. In this fashion, contested safety issues may be resolved without a completed SER. On the other hand, the NRC staff's practice has been to prepare relatively complete SERs without preparation of separate documents that specifically address matters in controversy. Nor should SERs be required to address matters in controversy as such, inasmuch as such a function is extraneous to the NRC Staff's primary authority and responsibility, viz., to review and judge the public health and safety of the applicant's proposed action.

By contrast, a final EIS is ordinarily necessary before the NRC staff may take a position on matters in controversy related to the environment and/or the adequacy of the EIS under the current regulations in 10 CFR Part 51. Inasmuch as the adequacy of the EIS is a matter which may be a subject of contention in a licensing proceeding, the EIS must be a part of the hearing record whenever the adequacy of the EIS is a matter in controversy in a proceeding.

Nonetheless, the Commission recognizes the potential for hearing delays while the NRC staff prepares an SER or EIS to support its position as a party in a proceeding. Therefore, the Commission has decided to address concerns over potential hearing delays Start Printed Page 2209due to the need for staff documents as follows.

First, to avoid delays where litigation of a contention is dependent upon some NRC staff action, the Commission will direct the NRC staff to develop internal management guidance and procedures to support timely NRC staff participation in hearings, including early preparation of testimony and evidence to support the NRC staff's position on a contention/controverted matter.

Second, the Commission is including in § 2.337(g) new language which supersedes the language of proposed § 2.711(i) (former 2.743(g)) addressing the admission into evidence of NRC staff documents. Section 2.337(g)(1) provides that in proceedings involving an application for a facility construction permit, the NRC staff shall offer into evidence the ACRS report, the NRC's safety evaluation, and any environmental impact statement (EIS) prepared under 10 CFR Part 51. The need for these documents in every production and utilization facility construction permit proceeding stems from the requirement in Section 189.a.(1)(A) for a mandatory hearing for construction permits. In proceedings involving applications for other than a construction permit for a production or utilization facility, where the NRC staff is a party, § 2.337(g)(2) requires the NRC staff to offer into evidence any ACRS report on the application, at the discretion of the NRC staff either the safety evaluation prepared by the staff and/or the NRC staff statement of position on the matter in controversy provided to the presiding officer (see the fourth item below), and the EIS or environmental assessment (EA) if there are contentions/controverted matters with respect to the adequacy of the EIS or EA. This requirement applies to, for example, licensing hearings conducted under Subpart L, and all hearings conducted under Subpart G. By contrast, if the NRC staff is not a party in such proceedings, the NRC staff shall offer into evidence, and provide (with the exception of any ACRS report) one or more sponsoring witnesses, for any ACRS report on the application, at the discretion of the NRC staff the safety evaluation prepared by the NRC staff and/or the NRC staff statement of position on the matter in controversy provided to the presiding officer, and the EIS or environmental assessment (EA) if there are contentions/controverted matters with respect to the adequacy of the EIS or EA.

Third, the Commission has made a number of changes to §§ 2.1202 and 2.1210 to clarify the distinction between the presiding officer's decisionmaking on matters in controversy in Subpart L proceedings and the NRC staff's separate review of the proposed action, and to facilitate the presiding officer's timely resolution of contested matters in those Subpart L proceedings in which the NRC staff has chosen not to participate as a party. Section 2.1202(a) has been modified to require the NRC staff to provide a “statement of position” on matters in controversy as part of its notice to the presiding officer and parties of the NRC staff's action on the application or the underlying regulatory matter which is the subject of the hearing. This ensures that where the NRC staff takes an action before the presiding officer issues its decision (as the NRC Staff is authorized to do under § 2.1202(a)), the presiding officer and parties have the benefit of the NRC staff's views and explanation as to why, notwithstanding the pendency of matters in controversy, the NRC staff believes it is safe to take the action. It also provides information that may be useful to the presiding officer for his or her determination on whether to direct the staff to participate as a party on one or more contentions. To ensure that the Commission is the final agency arbiter where a presiding officer's decision is inconsistent with the NRC staff's notice of position and action under § 2.1202(a) and the NRC has not participated as a party, Section 2.1210(a)(ii) has been added requiring the Commission to review a presiding officer's initial decision if it is inconsistent with the NRC staff's action taken under § 2.1202(a). Section 2.1403 was revised, parallel with § 2.1202, to ensure that the presiding officer is aware of the NRC staff's action on the application/contested matter. However, neither §§ 2.1406 nor 2.1407 were revised to be parallel with § 2.1210(a)(ii), inasmuch as under § 2.1406(b), the presiding officer's decision in a Subpart N proceeding must be transmitted to the Commission for its sua sponte review. Hence, in Subpart N the Commission has the opportunity to review any inconsistency between the NRC staff's action and the presiding officer's decision, and take any necessary action, without awaiting an appeal by a party.

Finally, § 2.1210 is modified to add a new paragraph (e), and § 2.1407 is modified to add a new paragraph (c), in order to clarify that once an initial decision becomes final, the Secretary shall transmit the decision to the NRC staff for action in accordance with the decision.

Section 2.338—Settlement of Issues; Alternative Dispute Resolution (§ 2.337 in Proposed Rule)

The Commission has long encouraged the resolution of contested issues in licensing and enforcement proceedings through settlement, consistent with the hearing requirements of the Atomic Energy Act. See Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452 (45 FR 28533; May 27, 1981); Policy Statement on Alternative Means of Dispute Resolution (57 FR 36678; Aug. 14, 1992). In this rulemaking, the Commission considered expanding the role of alternative dispute resolution (ADR) in NRC adjudications. ADR can be defined as any technique that results in the conciliatory resolution of a dispute, including facilitation, mediation, fact finding, mini-trials, early neutral evaluation, and arbitration. Although “unassisted” negotiation to resolve disputes has long been effectively used in resolving disputed matters before NRC tribunals, the focus of the ADR Act, and the efforts of the Interagency Working Group on Alternative Dispute Resolution chaired by the Attorney General (Interagency Working Group), has been on “formal” ADR techniques that require the use of a third party neutral. The Commission's consideration of ADR techniques for use in the hearing process also focuses on these formal ADR techniques. Although the Commission believes that a broad array of ADR options could be made available to the parties in an NRC proceeding, its view at the proposed rule stage was that “non-binding” techniques, such as mediation, would be the most appropriate. For example, mediation is a process by which an impartial third party—a mediator—facilitates the resolution of a dispute by promoting a voluntary agreement by the parties to the dispute. The parties are free to develop a mutually acceptable resolution to their dispute. The role of the mediator is to help the parties reach this resolution. The mediator does not decide the case or dictate the terms of a settlement. In addition to the foregoing, in response to suggestions by several workshop participants, the Commission indicated that it was considering providing further guidance on the use of alternative dispute resolution (ADR) as part of its hearing procedures.

In considering expanding the role of ADR in NRC adjudications, the Commission's focus is consistent with the NRC's continuing participation in the activities of the Interagency Working Group, as well as with the Administrative Dispute Resolution Act Start Printed Page 2210of 1996 (ADR Act). The Working Group was established to facilitate the implementation of a May 1, 1998, memorandum from President Clinton that directed all executive departments and Federal agencies to develop dispute resolution programs. Nonetheless, the Commission recognizes that because of the Commission's statutory responsibility under the AEA to make required public health and safety findings, the use of ADR may not be appropriate in all circumstances.

Section 2.337 of the proposed rule would not only have consolidated the former provisions in part 2 on settlement (10 CFR 2.203, 2.759, 2.1241), it would also have provided guidance on the use of settlement judges as mediators in NRC proceedings. The Commission previously endorsed the appropriate use of settlement judges in Rockwell International Corp., CLI-90-05, 31 NRC 337 (1990). The proposed rule was modeled on a provision in the Model Adjudication Rules prepared in 1993 for the Administrative Conference of the United States (ACUS). See Cox, The Model Adjudication Rules, 11 T.M. Cooley L. Rev. 75 (1994). The Commission sought public comment on the text of proposed § 2.337 as well as on the following questions:

  • Should the Commission formally provide for the use of ADR in its hearing process?
  • Should the use of ADR be codified in the Commission's regulations or provided for in some other manner, such as a policy statement?
  • At what stage of the hearing process should an opportunity for ADR be provided?
  • What types of issues would be amenable to resolution through ADR? What types of issues should not be considered for resolution through ADR?
  • How should the use of ADR operate in the context of the hearing process? Who could propose its use? What should be the role of the presiding officer? Who should be parties to the ADR process? What should be the role of the NRC staff in the ADR process? What happens to the proceeding while the ADR process is being implemented? How would the resolution of a dispute be incorporated into the hearing process? What should the role of the Commission be in the ADR process?
  • Should there be a source of third-party neutrals other than settlement judges appointed from the members of the Atomic Safety and Licensing Board Panel to assist in the ADR process, such as the roster of neutrals established by the U.S. Institute for Conflict Resolution or the National Energy Panel of the American Arbitration Association? How should such individual neutrals be selected? What arrangements should be made to compensate neutrals for their services?

A wide range of comments were received on ADR. Most commenters supported Commission efforts to encourage the use of ADR, but all indicated that ADR should not be required. While a commenter indicated that a proceeding should be suspended during ADR, other commenters argued that the use of ADR should not upset the hearing schedule. The Commission continues to believe that the use of ADR has the potential to eliminate unnecessary litigation of licensing issues, shorten the time that it takes to resolve disputes over issues, and achieve better resolution of issues with the expenditure of fewer resources. However, the Commission agrees that parties should not be forced to use ADR, and the final rule continues to make the use of ADR subject to voluntary agreement of all parties to any given contention. The Commission also believes that hearings should continue while ADR is ongoing, unless all parties agree to suspend the hearing and present an appropriate motion to the presiding officer. Thus, § 2.338 remains largely unchanged from the text of proposed § 2.337.

Section 2.337(i) of the proposed rule provided that a settlement or compromise must be embodied in a decision or order “settling and terminating the proceeding.” However, some settlements or compromises may resolve only some of the contentions/controverted matters, and may not result in termination of the proceedings. Accordingly, the Commission removed that phrase in § 2.338(i) of the final rule.

Section 2.340—Initial Decision in Contested Proceeding (§ 2.339 in Proposed Rule)

A commenter proposed that the Commission incorporate into this section the requirement that a presiding officer refer to the Commission for its approval the presiding officer's determination under § 2.340 (formerly § 2.760a) that a matter not placed into controversy by the parties constitutes a serious safety, environmental, or common defense and security matter which should be examined and decided by the presiding officer. The Commission agrees that the Commission's practice should be codified into part 2, since this is consistent with the direction of the Commission as announced in the Policy Statement of Conduct of Adjudicatory Proceedings (63 FR 41872; August 5, 1998) [15] which is reflected in § 2.340(a).

A public citizen commenter argued that proposed § 2.342 (final § 2.343), which provides for oral argument on a petition for review in the Commission's discretion, is redundant to proposed § 2.340(c)(1), and therefore should be deleted. The Commission agrees that these two provisions are redundant, but has instead decided to delete § 2.340(c)(1) to maintain consistency with the organization of § 2.331.

Section 2.341—Review of Decisions and Actions by Presiding Officer (§ 2.340 in Proposed Rule)

A commenter pointed out that proposed § 2.340(b)(1), which provided that the filing of a petition for review is mandatory before a party will be deemed to have exhausted its administrative remedies for purposes of seeking judicial review, is inconsistent with current case law. The Commission does not agree with the commenter's view of the current law. However, the complex jurisdictional issues raised need not be resolved here. The Commission has simply modified § 2.341(b)(1) to provide that unless otherwise authorized by law, a party must file a petition for Commission review before seeking review of an agency action. Analogous changes were also made to §§ 2.1212 and 2.1407.

In response to a separate comment that proposed § 2.340(c)(1) and § 2.342 were redundant with respect to addressing the subject of oral arguments, the Commission removed the reference to oral arguments in § 2.341(c)(1) of the final rule. The last sentence in § 2.341(d) has been corrected to refer to the standard for reconsideration in § 2.323(e).

Section 2.348—Separation of Functions (§ 2.347 in Proposed Rule)

The proposed rule contained a slight modification to paragraph (b)(3) intended to reflect the use of “plain English.” The Commission has decided that the language in former § 2.781(b)(3), from which this provision was drawn, is sufficiently clear and has decided to use that language in the final rule.

Section 2.390—Public Inspections, Exemptions, Requests for Withholding

The Commission corrected § 2.390 (former § 2.790) to include a footnote in paragraph (a) that was inadvertently Start Printed Page 2211removed from former § 2.790(a) by the Office of the Federal Register. The footnote provides that “final NRC records and documents” do not include handwritten notes, or draft records and documents.

(g) Subpart G.

The Commission proposed revising Subpart G by consolidating the provisions of general applicability in new Subpart C. As a result, Subpart G would contain only the provisions for the conduct of formal adjudications. Former § 2.705, which provides for the filing of an answer to a notice of hearing, is removed in the final rule; experience has shown this provision to be largely superfluous. For the same reason, former § 2.751a, which provides for a special prehearing conference in connection with construction permit and operating license proceedings, and former § 2.761a, which provides for separate hearings and decisions, are removed. The provisions of former § 2.752 are redesignated as § 2.318 in order to provide for the conduct of a prehearing conference to accomplish the same purposes as those in former § 2.751a. The provisions of former § 2.765, immediate effectiveness of an initial decision directing issuance or amendment of a license under part 61 of this chapter, are relocated to the revised Subpart L, which sets forth the provisions applicable to informal proceedings such as those under part 61.

The Commission requested public comment on whether Subpart G should be used in all initial power reactor construction permit and operating license proceedings, rather than in such proceedings involving a “large number” of “complex issues.” The public comments received and the Commission's resolution of this matter are addressed earlier in “Complex Issues in Reactor Licensing” under the discussion of § 2.310.

Section 2.703—Examination by Experts

In response to comments suggesting that cross-examination must be controlled, the Commission has decided to add an additional requirement that a party seeking permission to use an expert to conduct cross-examination should file a proposed cross-examination plan in accordance with § 2.711(c). Filing of a proposed cross-examination plan would assist the presiding officer in determining whether the expert proposed to conduct cross-examination is capable of doing so in a manner that will facilitate the development of a concise and adequate record on contested matters.

Section 2.704—Discovery: Required Disclosures

A commenter noted that paragraph (b)(3) failed to include the words, “30 days after,” from Rule 26 of the Federal Rules of Civil Procedure, and that these words should be added to the final rule. The Commission agrees that these words should be included, and the phrase, “the disclosures must be made within thirty (30) days after” has been added to the final version of § 2.704.

Section 2.705—Discovery—Additional Methods

A commenter noted that a footnote in proposed § 2.706(b)(1) did not appear to be relevant to that section. The footnote has been designated as a footnote to § 2.705(g)(4), and a typographic error corrected in the footnote.

Section 2.709—Discovery Against NRC Staff

The Commission has clarified § 2.709 to make clear that the Executive Director for Operations (EDO) may delegate his responsibilities to respond and object to discovery requests, and to respond to discovery orders issued under § 2.709(e) and (f) by a presiding officer, and that a presiding officer's discovery order to the EDO should reflect the authority and discretion of the EDO to so delegate his responsibilities. The final rule also corrects a reference to § 2.704(c) and (e) in the proposed rule; the correct reference should be to § 2.705(c) and (e), which contains the provisions requiring protective orders and the duty to update earlier discovery responses.

Section 2.710—Summary Disposition Motions

Section 2.710 of the proposed rule would have expanded the presiding officer's discretion not to consider a summary disposition motion unless he or she determines that resolution of the motion will serve to expedite the proceeding. The Commission requested comment on whether the proposed revision, or some other standard, should be adopted. Two comments were received on proposed § 2.710 in this regard. One commenter stated that although the presiding officer should be provided some discretion to rule on motions for summary disposition, as a general matter the presiding officer should rule on the motion unless delay would result. Another commenter opposed the proposed rule, arguing that rather than allowing such discretion the Commission should expand the use of summary disposition to resolve issues even where there is a genuine issue of material fact.

The Commission continues to believe that in many instances summary disposition involves an additional delaying step in a proceeding, and that a presiding officer's consideration of such motions at a point in time close to the scheduling of a hearing can divert all parties' and the presiding officer's attention from a hearing. These considerations in part underlies the Commission's admonition in its 1998 Policy Statement on Conduct of Adjudicatory Proceedings that Licensing Boards should forego the use of motions for summary disposition except upon a finding that such a motion will likely substantially reduce the number of issues to be decided, or otherwise expedite the proceeding. While the final rule remains generally unchanged from the proposed rule in terms of codifying that admonition (although moved to paragraph (d) of the final rule), the Commission also believes that if summary disposition motions are to be used, they must be filed soon after the end of discovery so that the presiding officer may have an opportunity to review the motions and advise the parties whether the motions will be granted in whole or part. Therefore, the Commission is adopting a number of additional provisions that will govern the filing and determination of summary disposition motions, in order to ensure that such motions serve to expedite the proceeding and do not distract the parties' and the presiding officer's attention from preparation for the oral hearing.

Section 2.710(a) of the final rule requires that all summary disposition motions must be filed no later than twenty (20) days after the close of discovery under §§ 2.702 through 2.708. By requiring a party to file its summary disposition motion soon after discovery is completed, the presiding officer will be able to determine whether the hearing may be scheduled in the near future (if no motions are submitted), or whether allowances must be made for the submission and resolution of such motions (c.f., § 2.329, with respect to a prehearing conference, and § 2.332, requiring the presiding officer to issue a scheduling order). The Commission believes that twenty (20) days is sufficient time to assess information obtained as the result of discovery and prepare summary disposition motions.

The Commission is also adopting a provision in § 2.710(e) requiring the presiding officer to issue an order no later than forty (40) days after any responses to the summary disposition motion are filed, indicating whether the motion is granted or denied, together with the bases for the presiding officer's Start Printed Page 2212determination. The Commission is retaining the provisions set forth in the final two sentences of proposed § 2.710(a) allowing the presiding officer not to consider a summary disposition motion which the presiding officer believes would not expedite the proceeding if the motion were granted, and to either summarily dismiss or hold in abeyance a summary disposition motion filed shortly before or during the oral hearing, if the presiding officer believes that substantial resources must be diverted to adequately respond to the motion. The provisions, however, have been moved into new paragraph (d)(1) of § 2.710.

(h) Subpart I.

The Commission is adopting a conforming change to § 2.901to specify that the procedures for handling Restricted Data and National Security Information in Subpart I apply to proceedings under subparts G, J, K, L, M, and N. Section 2.901, which specified that Subpart I procedures apply only to proceedings conducted under subpart G, was adopted in 1962, and underwent minor changes in 1976 but was not modified to reflect the Commission's adoption of subparts J, K, L, and M. The procedures in Subpart I for handling Restricted Data and National Security Information are generic and appropriate for use in NRC adjudicatory proceedings. However, it is highly unlikely that the Commission will choose to hold Subpart O legislative-style hearings requiring the handling and consideration of Restricted Data and National Security Information. Accordingly, the final rule specifies that Subpart I procedures will apply to proceedings under subparts G, J, K, L, M, and N. However, should the Commission determine that access to Restricted Data and National Security Information should be provided in Subpart O legislative-style hearings, the Commission may specify the use of Subpart I procedures under § 2.1502(c)(6).

In a conforming change, the definition of a “party” in § 2.902(e) is amended to refer to §§ 2.309 (former § 2.714) and 2.315 (former § 2.715).

(i) Subpart J.

The Commission proposed a number of changes to §§ 2.1000, 2.1001, 2.1010, 2.1012, 2.1013, 2.1014, 2.1015, 2.1016, 2.1018, 2.1019, 2.1021, and 2.1023. The changes are intended to: (1) Correct references to rules of general applicability in existing Subpart G that are being transferred to Subpart C, and (2) eliminate redundant or duplicate provisions in Subpart J that would be covered by the generally applicable provisions in Subpart C.

One commenter suggested that § 2.1013(b) be clarified to provide that exhibits used in connection with cross-examination need not be tendered in advance to opposing parties. The Commission declines to adopt the commenter's suggestion. The Commission has adopted in Part 2 the principle of broad disclosure of relevant documents and information to all parties. That principle is manifested in Subpart J by the requirement for the Licensing Support Network (LSN), in which the parties are to file certain documents as described in Subpart J, including §§ 2.1003 and 2.1004. Thus, all documents that may be used in cross-examination must be disclosed to other parties. However, nothing in Subpart J requires that such documents must be identified as to their intended use by a party in the proceeding. Therefore, an exhibit to be used in cross-examination need not be identified as such, nor must that exhibit be marked to show the portions of the exhibit to be used in cross-examination. Accordingly, all parties will have access to all relevant documents, including those to be used in cross-examination, without knowing which document (if any), or portion thereof, may be used in cross-examination.

The Commission has adopted the proposed revision to Subpart J with some additional conforming and correcting changes. Section 2.1000 is revised to provide for consistent organization and terminology among all scope statements in part 2. In addition, § 2.1000 is revised to add references to provisions of Subparts C and G, where existing § 2.1000 erroneously omitted reference to the parallel provisions in former Subpart G. Section 2.1000 now references §§ 2.301 and 2.701, which authorize the Commission to use alternative procedures to the extent that the conduct of military or foreign affairs functions are involved; § 2.317(a), which permits separate hearings in a proceeding; § 2.324, which authorizes the presiding officer to determine the order of procedure; and § 2.710, which addresses the use of summary disposition motions.

Conforming changes are made in § 2.1001 to provide correct references to §§ 2.309, 2.315, and 2.1021, and to use consistent terminology. Section 2.1006 is conformed to refer to § 2.390. Section 2.1018 is conformed to refer to § 2.708. A conforming change is made to § 2.1022 to correct a reference to the general provisions governing late-filed contentions in § 2.309(c). Finally, the newly-adopted provisions in Subpart J are changed to be consistent with Subpart C of this final rule and newly-adopted 10 CFR Part 63 (66 FR 55732; Nov. 2, 2001), by referring to a “construction authorization” for a HLW geologic repository, and a “license to receive and possess” HLW at a HLW geologic repository.

(j) Subpart K.

The Commission proposed several simple changes to §§ 2.1109 and 2.1117. In addition, § 2.1111 on discovery would be removed because discovery for Subpart K hybrid hearings will be addressed by the general discovery provisions of Subpart C. The proposed changes were intended: (1) To conform Subpart K to the rules of general applicability of Subpart C, particularly with regard to the need to request hybrid hearing procedures in the petition to intervene, and (2) to make it clear that a hearing on any contentions that remain after the oral argument under Subpart K will be conducted using the informal hearing procedures of proposed Subpart L.

A commenter argued that, because the first spent fuel pool capacity expansion license amendment case to use Subpart K, Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), LBP-00-12, 51 NRC 247 (2000) (Shearon Harris), took over two (2) years to reach resolution, many changes should be made to Subpart K which are not being made at this time. Specifically, the commenter suggested that § 2.1113(a) should allow issues of whatever nature that are identified for oral argument to be heard together; § 2.1113(b) should allow experts who prepare affidavits in support of written submissions to respond directly to questions posed by the hearing examiner at the oral argument; § 2.1115(a) should establish firm deadlines after oral argument for the presiding officer to rule on whether any issues remain to be heard in an adjudicatory hearing, and all issues admitted should be heard together; and § 2.1115(b) should specify that the party raising an issue of fact or law for consideration has the burden of proof as to whether the issue meets the standards for holding such a hearing.

The Commission does not agree with the commenter's suggestion that all issues be heard together at oral argument, and resolved in an adjudicatory hearing if one is held. The commenter did not explain how the lack of provisions in Subpart K addressing these matters resulted in unnecessarily prolonging the time needed for resolution in Shearon Harris.

On the other hand, the Commission agrees with the commenter's observation that “restrictions on oral argument”—presumably the fact that it is inappropriate for attorneys Start Printed Page 2213representing their clients to make technical presentations—can make it difficult for parties to respond to interrelated technical issues. However, the Commission disagrees with the commenter's apparent proposed solution, viz., allowing experts to respond directly to questions posed by the presiding officer at the oral hearing. Rather than adapting a process to allow oral testimony by experts which would substantially depart from the statutory mandate behind Subpart K, the Commission has adopted an approach which provides an opportunity for each party to provide written responses to the written summaries and supporting facts and data submitted by the other parties. Accordingly, § 2.1113 has been modified in the final rule to provide that each party must submit its summary of all facts, data and arguments, together with the underlying facts and data, twenty-five (25) days before the oral hearing, rather than fifteen (15) days as provided in the proposed rule. Ten (10) days before the oral argument, each party may, but is not required to, submit a reply limited to addressing the written summaries, facts, data and arguments submitted by any of the other parties.

The Commission also agrees with the commenter that Subpart K should be clarified to state that while the applicant for the spent fuel pool capacity expansion license amendment bears the ultimate burden of proof (risk of non-persuasion) on admitted contentions, the proponent of an adjudicatory hearing bears the burden of demonstrating that the criteria in § 2.1115(b) have been met, and, accordingly, that an adjudicatory hearing should be held. This clarification, which is consistent with the Licensing Board's decision in Shearon Harris, 51 NRC at 254-55, is reflected in new § 2.1117. The text of proposed § 2.1117, “Applicability of other sections,” is now included in new § 2.1119.

The Commission made conforming and correcting changes in § 2.1103 to provide for consistent organization and terminology among all scope statements in Part 2.

(k) Subpart L.

The NRC's experience with the informal hearing procedures of the existing Subpart L has shown that some aspects are cumbersome and inefficient in the development of a record. To address these problems, the Commission proposed replacing the existing Subpart L in its entirety with new provisions that would: (1) Shift the focus of Subpart L to informal oral hearings, (2) require submission of contentions, and (3) provide the opportunity to pose questions indirectly to witnesses by proffering proposed questions to the presiding officer. The Commission requested comment on this shift in emphasis to more informal hearings conducted under the proposed revised procedures of Subpart L.

A large number of comments were received on Subpart L. Nearly all the comments expressed displeasure with Subpart L, either in its current form or as proposed to be reconstructed. However, the reasons for the discontent fell into two general categories. Citizen groups and private individuals argued that Subpart L, by moving further away from the procedures embodied in Subpart G, will effectively eliminate public participation by substituting a more burdensome and expensive procedure. The proposed elimination of cross-examination was also identified as objectionable by this group of commenters. By contrast, industry commenters generally not only supported the elimination of cross-examination, but two commenters argued that the Commission should go further by eliminating the requirement for an oral hearing. Under their proposal, an oral hearing would be held only if the presiding officer determined, after reviewing the written presentations, that an oral hearing is necessary.

The Commission believes that its Subpart L strikes the appropriate balance between public confidence in the Commission's hearing process, and the need to expeditiously resolve contested matters. As discussed earlier with respect to the use of informal procedures, the Commission does not believe that a large number of NRC hearings involve factual disputes for which the expanded panoply of discovery procedures in Subpart G are necessary. Nor does the Commission believe that there are a large number of hearings where the credibility of eyewitnesses is an issue with respect to either the occurrence of a material past event, or the motive or intent of a party, such that cross-examination is an appropriate tool for issue resolution. On the other hand, the Commission believes that if the presiding officer has the opportunity to examine the witnesses, the presiding officer will be able to gain a better understanding of the testimony, and efficiently oversee the development of evidence relevant to the resolution of the contested matter in the hearing. Written follow-up questions propounded by a presiding officer are, at best, an inefficient substitute for the “back-and-forth” ability of a presiding officer to question witnesses orally, and experience indicates consumes more time and resources of the presiding officer and parties. For these reasons, the Commission concludes that an oral hearing should be provided for in a Subpart L proceeding, but that cross-examination should ordinarily not be permitted.

Although cross-examination by the parties generally will not be permitted in Subpart L proceedings and all of the more informal hearing tracks, the Commission emphasizes that the ultimate burden of proof (risk of non-persuasion) remains with the applicant and/or the proponents of particular actions in these proceedings. Moreover, a party sponsoring a contention bears the burden of going forward with evidence sufficient to show that there is a material issue of fact or law, such that the applicant/proponent must meet its burden of proof. Where cross-examination is not permitted, each party must bear its burden by going forward with affirmative evidentiary presentations and testimony, its rebuttal evidence and rebuttal testimony, and well-developed questions that the party suggests the presiding officer pose to the witnesses. Thus, the responsibility for developing an adequate record for decision is on the parties, not the presiding officer. The presiding officer is responsible for overseeing the compilation of the record and for ensuring that the record is sufficiently clear and understandable to the presiding officer such that he or she can reach an initial decision. However, the parties are responsible for ensuring that there is sufficient evidence on-the-record to meet their respective burdens. The presiding officer will take the compiled record, clarified by action of the presiding officer as necessary so that it is understandable for the presiding officer's deliberations, and based upon that record determine whether the parties have met their respective burdens.

Nonetheless, to provide for the possibility in a Subpart L proceeding that, in some instances in a particular proceeding, cross-examination by parties may prove to be the best way of creating an adequate record for decision in certain situations, § 2.1204(b) allows the presiding officer to permit cross-examination upon motion of a party if the presiding officer finds that cross-examination is necessary for development of an adequate record. To ensure that cross-examination will be focused on disputed material issues of fact, § 2.1204(b) has been modified from the proposed rule to add a requirement that a motion/request for cross-examination must include a proposed cross-examination plan. The cross-Start Printed Page 2214examination plan provisions in § 2.1204(b) were derived from the requirements in § 2.711(c). Furthermore, under the generally-applicable requirement in § 2.333, parties granted permission to conduct cross-examination must conduct their cross-examination in conformance with the cross-examination plan filed with the presiding officer.

The Commission also requested public comment on whether the final rule should provide explicitly for the option of the Commission or the Chief Administrative Judge to establish three-judge panels on a case-by-case basis, e.g., in cases where there are likely to be both significant technical and legal issues to be resolved in the hearing.

Two comments were received on this matter. One commenter indicated that there was no need to expressly provide for appointment of a three-judge panel, since §§ 2.313 and 2.321 would already allow the Commission or Chief Administrative Judge to appoint a three-judge panel. Another commenter stated that it may be appropriate to appoint three-judge panels for initial reactor construction permit and operating license cases, as well as cases in which there is likely to be a large number of complex issues.

After reviewing the language of proposed §§ 2.313 and 2.321, the Commission agrees with the commenter that these sections provide sufficient flexibility for the Commission and Chief Administrative Judge to appoint three-judge panels in appropriate circumstances. The Commission also does not wish to limit in advance the circumstances for which the Commission or Chief Administrative Judge could appoint a single presiding officer. For these reasons, the Commission declines to adopt a further change to Part 2 addressing this subject, but notes that under revised § 2.313 the Commission and the Chief Administrative Judge are free to appoint a single presiding officer or a three-judge Atomic Safety and Licensing Board.

Several commenters asserted that § 2.1207 should be amended to address whether parties must submit in advance the questions they wish the presiding officer to pose to the witnesses, whether the questions must be exchanged with other parties, and whether parties may submit questions to the presiding officer at the oral hearing as the result of witnesses' testimony. The Commission has revised § 2.1207 to make clear that: (1) Questions must be submitted so that they are received by the presiding officer no later than five (5) days before the commencement of the hearing; (2) questions need not be exchanged with other parties; and (3) a party may not submit proposed questions to the presiding officer at the hearing, unless the presiding officer requests a party to submit such questions to assist the presiding officer in the parties' development of a sufficient record to permit a decision on the matters in controversy.

The Commission made conforming and correcting changes in § 2.1200 to provide for consistent organization and terminology among all scope statements in Part 2. In addition, the Commission revised § 2.1207 to ensure that a presiding officer treats proposed questions to be propounded to witnesses as confidential information until either the question is asked of the witness, or the presiding officer's initial decision is issued. Upon issuance of the decision, the presiding officer must transmit the questions to the Secretary so that they may be entered into the official record for the proceeding.

(l) Subpart M.

Sections 2.1306, 2.1307, 2.1308 (with the exception of paragraph (d)(2)), 2.1312, 2.1313, 2.1314, 2.1317, 2.1318, 2.1326, 2.1328, 2.1329, and 2.1330 are deleted because the substance of these sections is covered by rules of general applicability in new Subpart C. The final rule reinstates the language formerly contained in § 2.1308(d)(2), stating that Subpart M hearings are oral hearings, unless all the parties agree and file a motion that the hearing consist of written filings. The motion must be filed within fifteen (15) days of the service of the notice or order granting the hearing. This language was inadvertently designated as “removed” in the proposed rule, and the final rule correctly retains this language in § 2.1308.

No significant comments were received on the proposed changes, and the Commission has adopted proposed Subpart M without substantive changes. However, the Commission made conforming and correcting changes in § 2.1300 to provide for consistent organization and terminology among all scope statements in Part 2.

The Commission has corrected § 2.1315(a), so that the phrase, “no generic issue,” is revised to correctly read, “no genuine issue.” The Commission has also revised § 2.1323(d) in a manner similar to § 2.709, to clarify that a delegee of the Executive Director for Operations may designate the NRC personnel who will provide testimony in a Subpart M hearing.

(m) Subpart N.

New Subpart N is a “fast track” process for the expeditious resolution of issues in cases where the contentions are few and not particularly complex, and therefore may be efficiently addressed in a short hearing using simple procedures and oral presentations. This subpart may be used for more complex issues if all parties agree. Subpart N may be applied to all NRC adjudications except proceedings on uranium enrichment facility licensing, proceedings on the initial authorization to construct a high-level radioactive waste geologic repository, and proceedings for the initial issuance of a license to possess and receive HLW at a geologic repository operations area. In view of the simplified procedures and the expedited nature of the litigation involved, Subpart N allows an appeal as-of-right to the Commission so that the parties have a direct path to the Commission for review of the decision. The “fast track” procedures of Subpart N may be particularly useful for cases involving small materials licensees, where the parties want to be heard on the issues in a simple, inexpensive, and informal proceeding that can be conducted quickly before an independent decisionmaker. The Commission requested comments on the appropriate criteria for the use of Subpart N.

Several commenters stated that proposed § 2.310(h) would result in Subpart N being used too infrequently, because in a contested case the parties will probably not agree and it will be argued that the 2 day criterion will not be met. One commenter argued that the Commission should have only one informal track (other than Subparts K & M) and should simply state that the hearing should not take more than a specified number of days. Another commenter indicated that no specific set of criteria need to be defined in the rule for establishing whether a proceeding should be conducted under Subpart N other than a determination by the Commission, the Licensing Board or the presiding officer. The commenter instead proposed that § 2.310(h) be changed to allow the use of Subpart N if: (1) All parties agree to Subpart N; or (2) the Commission, the presiding officer, or the Licensing Board determines that the proceeding would demonstrably benefit from application of Subpart N. Another commenter indicated that a new § 2.310(i) should be added, specifying that Subpart N can be used for a portion of a hearing held under a different subpart if the Commission, the presiding officer or the Licensing Board determines that portion suitable for application of Subpart N.

The Commission believes that the procedures of Subpart N should be Start Printed Page 2215limited to a relatively narrow set of proceedings where all parties agree, or where the hearing is expected to be concluded in two (2) days or less. The procedures were developed to permit a quick, relatively informal proceeding where the presiding officer could easily make an oral decision from the bench, or in a short time after conclusion of the oral phase of the hearing. The Commission is reluctant—absent all parties agreeing—to allow use in other circumstances where the issues are more complex or the hearing is drawn out over months. If experience shows that Subpart N is being underutilized, or that hearings are being conducted under other provisions such as Subpart L which, but for the 2-day limitation, would have been better conducted under Subpart N, the Commission will reconsider modifying or eliminating the 2-day limitation.

The Commission made conforming and correcting changes in § 2.1400 to provide for consistent organization and terminology among all scope statements in Part 2. The Commission also revised § 2.1407(a)(1) with respect to the need for filing an appeal with the Commission before seeking judicial review, consistent with the change to § 2.341(b)(1) discussed earlier.

(n) Subpart O.

As discussed earlier under II.A.2.(b), Commission Question 1, the Commission has decided to add a new Subpart O that will govern non-adversarial “legislative hearings.” The procedures in Subpart O are intended to provide a hearing forum where the Commission (or a designated presiding officer) may obtain information and differing stakeholders' perspectives on a policy issue.

The Commission could hold legislative hearings in its sole discretion in two situations delineated in Subpart O. First, the Commission may hold a legislative hearing in connection with a design certification rulemaking, either indicating as part of the notice of proposed rulemaking that it intends to hold a legislative hearing, or issuing a notice of its intent to hold a legislative hearing after reviewing the comments received on the proposed design certification rule.

Although this represents a change from former 10 CFR 52.51(b), which provided an opportunity for an informal hearing in connection with a Federal Register notice of proposed rulemaking for a design certification, the Commission expects that there will be little impact on the public with this change. No hearing request was submitted in any of the three design certification rulemakings to date. In addition, many of the significant generic issues associated with the first three design certification rulemakings were the subject of discussion in workshops and open meetings, so that public stakeholders could observe and provide comments on the issues before the proposed rule was published. This may have diminished the need for informal hearings as part of the design certification rulemaking. The Commission believes that providing for a discretionary “legislative hearing” using the procedures in Subpart O is consistent with the requirements of the AEA, inasmuch as the “hearing” contemplated by Section 189 for rulemakings is satisfied by opportunity for comment on the proposed design certification rule. Hence, any additional hearing, such as a legislative-style hearing under Subpart O, is an enhancement over what is legally required for rulemaking under either the AEA or the APA.[16]

The other circumstance where the Commission could decide to use a legislative hearing is where the presiding officer under § 2.335(d) has certified to the Commission a question regarding a waiver of the prohibition on consideration of a Commission rule or regulation in an agency hearing. Under the last sentence of § 2.335(d) (formerly § 2.758(d)), the Commission may “direct further proceedings as it considers appropriate to aid its determination.” The Commission believes that matters addressing the appropriateness of challenging or waiving existing Commission rules and regulations in a particular adjudicatory proceeding may raise the kinds of policy and regulatory issues which are suited for “legislative hearings” under Subpart O.

The procedures developed for this hearing are modeled to some extent upon the hearings held by Congress and other legislative bodies. Thus, under Subpart O, the Commission would determine the matters to be addressed in the legislative hearing; there would be no “parties”—the Commission would normally determine the witnesses at the hearing (in a legislative hearing considering a petition under § 2.335, all parties to the proceeding will be invited to participate, as will interested States, governmental bodies, and affected Federally-recognized Indian Tribes participating under § 2.315(c)); the NRC staff need not participate; written testimony and exhibits would be filed; the Commission could have witnesses testify as a panel; and there would be no “decision” other than the Commission's final design certification rulemaking or the Commission's determination under § 2.335(d). The Commission's determination in these legislative hearings need not be based upon information developed solely in the Subpart O proceeding (inasmuch as AEA does not require NRC rulemakings to be “on-the-record.” Thus, only the most general procedures of Subpart C apply in the context of a Subpart O hearing.

(o) 10 CFR part 60.

In a conforming change, § 60.63(a) was revised to refer to Subpart J of part 2 instead of Subpart G, consistent with § 63.63(a) of the recently-adopted part 63 (66 FR 55732; Nov. 2, 2001). When § 60.63 was adopted in 1981 (46 FR 13971; Feb. 25, 1981), it referred to Subpart G inasmuch as Subpart J of Part 2 had yet to be adopted (54 FR 14925; May 14, 1989). The reference to Subpart G in § 60.63(a) should have been corrected to refer to Subpart J when Subpart J was adopted; thus, this final rule makes the necessary conforming change.

B. Section-by-Section Analysis

1. Implementation of Rule

The final rule will apply only to proceedings which are noticed on or after the effective date of the final rule. Current proceedings noticed before the effective date of the final rule will be governed by the former provisions of Part 2. If a decision is currently on appeal within the Commission, or to a Court of Appeals, and the decision is remanded to the NRC for further action, the remanded proceeding will continue to be governed by the former provisions of Part 2.

2. Introductory Provisions—Sections 2.1-2.8.

Conforming changes are made to §§ 2.2, 2.3, and 2.4 to reference the new section numbers in Part 2.

A new definition of “presiding officer” is added to § 2.4. Under this definition, a presiding officer may be the Commission, an administrative law judge, an administrative judge, an Atomic Safety and Licensing Board, or other person designated in accordance with the provisions of this part, presiding over the conduct of a hearing conducted under the provisions of this part. Section 2.313 sets forth the provisions governing which of these Start Printed Page 2216entities may act as a presiding officer in any particular hearing.

3. Subpart A—Sections 2.100-2.111

Section 2.100—Scope of Subpart

Section 2.100 is corrected to remove the typographic error, “alicense.”

Section 2.101—Filing of Application

Conforming changes are made to this section to reflect the new section numbers in Part 2, and paragraphs (a)(3)(ii) and (b) were modified to require that the applicant's notification of the availability of an application and/or environmental report should be accompanied by, inter alia, the email address, if one is available, of the designated applicant representative.

Section 2.102—Administrative Review of Application

Conforming changes are made to this section to reflect the new section numbers in Part 2.

Section 2.103—Action on Applications for Byproduct, Source, Special Nuclear Material, Facility and Operator Licenses

Section 2.103 is amended to include a reference to “facility” licenses in the title and the text.

Section 2.104—Notice of Hearing

Section 2.104 addresses how the Commission will provide notice to parties, the public and State, local governmental, and federally-recognized Tribal officials. Paragraph (e) is corrected to make clear that the NRC will provide notice to all parties and all other persons entitled to notice of hearing with respect to applications for construction authorization for a HLW repository under 10 CFR parts 60 and 63, and applications to receive and possess high-level waste at a HLW repository.

Section 2.105—Notice of Proposed Action

Section 2.105 addresses how the Commission will provide notices of proposed action if a hearing is not required. Paragraph (a)(5) is revised to clarify that the Commission will publish notice of proposed issuance of licenses and license amendments to receive and possess high-level waste at a geologic repository operations area under 10 CFR parts 60 and 63 if the license or amendment would authorize actions which may significantly affect the health and safety of the public, where a hearing is not otherwise required by law. Paragraph (a)(6) is revised to clarify that the Commission will publish notice of proposed issuance of an amendment to a construction authorization for a high-level radioactive waste repository under 10 CFR parts 60 and 63 if the amendment would authorize actions which may significantly affect the health and safety of the public, where a hearing is not otherwise required by law.

Section 2.106—Notice of Issuance

Section 2.106 addresses how the Commission will provide notice to the parties, the public, and State, local governmental, and federally-recognized Tribal officials of issuance of a license or amendment. Paragraph (d) was corrected to make clear that the NRC will provide notice with respect to any action on an application for construction authorization for a high level waste repository under 10 CFR parts 60 and 63, issuance of a license to receive and possess high-level waste at a HLW repository, or issuance of an amendment to such a license.

Section 2.107—Withdrawal of Application

This section describes how the Commission will process a withdrawal of an application by an applicant. The second sentence was changed to correctly state that if an application is withdrawn before the NRC issues a notice of hearing, the Commission dismisses the proceeding. The last sentence of this section was rewritten to make clear that the presiding officer determines the terms and conditions for withdrawal of an application after the NRC issues a notice of hearing.

Section 2.108—Denial of Application for Failure To Supply Information

Conforming changes were made to this section to reflect the new section numbers in part 2.

Section 2.110—Filing and Administrative Action on Submittals for Design Review or Early Review of Site Suitability Issues

Conforming changes were made to this section to reflect the new section numbers in part 2.

4. Subpart B—Sections 2.200—2.206

Section 2.206 is amended to provide the Secretary with the authority (formerly set forth in § 2.772(g)) to extend upon the Commission's motion the time for Commission review under § 2.206(c)(1) of a Director's denial of a petition submitted under § 2.206.

5. Subpart C—Sections 2.300-2.348, 2.390

Subpart C contains the rules of general applicability for considering hearing requests, petitions to intervene and proffered contentions, for determining the appropriate hearing procedures to use for a particular proceeding, and for establishing the general powers and duties of presiding officers for the NRC hearing process. The provisions of Subpart C generally apply to all NRC adjudications conducted under the authority of the Atomic Energy Act of 1954, the Energy Reorganization Act of 1974, and 10 CFR part 2.

A large part of Subpart C essentially restates and updates the substance of many of the rules of general applicability that were formerly contained in Subpart G. The Commission has prepared Table 1, which cross-references the new provisions in Subpart C and the renumbered Subpart G to the superseded provisions of Subpart G, and Table 2 which cross-references the superseded provisions of Subpart G to new Subparts C and G.

Table 1.—Cross-References Between New Subparts C and G and Old Provisions of Subpart G

[NA = no comparable provision in former Subpart G. None = no substantive or editorial change; references to Part 2 sections are corrected]

New sectionOld sectionDescription/modification
Cross-References to New Subpart C
2.3012.700aParagraph (b) on applicability is removed.
2.3022.701Addresses facsimile transmissions and electronic mail.
2.3032.702Clarified; no substantive change.
2.3042.708, 2.709Addresses electronic mail; modifies format requirements of documents.
Start Printed Page 2217
2.3052.712Addresses facsimile and electronic mail. Adds provision requiring service by most expeditious means, and provision on service on NRC staff when not a party. Deletes provisions on proof of service and free copying.
2.3062.710Addresses computation of time for electronic mail and facsimile transmissions.
2.3072.711Clarified.
2.308NANew section on Secretary's duty to forward petitions/requests for hearing to Commission or Chief Judge.
2.3092.714Changes requirement for standing; requires filing of contentions with petition/request for hearing. Adds provision with standards for discretionary intervention, and adds provision on time limit for issuance of presiding officer's decision on petitions/requests for hearing.
2.310NANew section setting forth criteria for different hearing tracks.
2.3112.714aClarified; adds provision on appeals with respect to selection of hearing procedure.
2.3122.703Clarified; adds provision on statement of hearing procedures or subpart for order or notice of hearing.
2.3132.704Clarified and reorganized.
2.3142.713Simplified and expanded.
2.3152.715Clarified; adds requirement for designation of single representative for interested States, local governmental bodies, and affected Federally-recognized Indian Tribes not admitted as parties.
2.3162.715aClarified and simplified; expanded to cover all proceedings.
2.3172.716, 2.761aSimplifies provision for establishment of separate hearings; no change to provision on consolidation of proceedings.
2.3182.717Conforming changes made to refer to administrative law judge.
2.3192.718, 2.1233(e)Clarified; consolidates several provisions relating to authority of presiding officer.
2.3202.707None.
2.3212.721Conforming changes made to refer to Chief Administrative Judge.
2.3222.722None.
2.3232.730Clarified and expanded to address motions for referral, reconsideration and certification, and accuracy in filing.
2.3242.731None.
2.3252.732None.
2.3262.734None.
2.3272.750Replaces subsection on provision of free transcripts, and adds new provisions on video recordings.
2.3282.751None.
2.3292.752, 2.751aConsolidates and adds provisions on purpose and objectives of prehearing conferences.
2.3302.753None.
2.3312.755None.
2.332NANew section on case scheduling and management.
2.3332.757Clarifies authority of presiding officer, and adds provisions on cross-examination plans as conforming changes.
2.334NANew section setting forth schedules for proceedings.
2.3352.758Clarifies that paragraph (a) applies to all adjudicatory proceedings.
2.336NANew requirement for disclosure of materials.
2.3372.743(c)-(f), (h), (i)Consolidates provisions on evidence at hearing; no substantive changes.
2.338NANew section on Alternative Dispute Resolution (ADR).
2.3392.761None.
2.3402.760a, 2.764Consolidates provisions on effectiveness of initial decisions.
2.3412.786Clarified; codifies Commission practice of discretionary review of requests for interlocutory appeals; modifies provision on exhaustion of administrative remedies.
2.3422.788Modified to include service affected by electronic means.
2.3432.763None.
2.3442.770None.
2.3452.771NRC staff not provided additional time to respond to petitions for reconsideration.
2.3462.772Clarified; removes provision on Secretary's authority to extend time for Commission review of a Director's denial under 10 CFR 2.206(c) (now addressed in 2.206(c)).
2.3472.780None.
2.3482.781Clarified; no substantive change.
2.3902.790None.
Start Printed Page 2218
Cross-References to New Subpart G
2.7002.700Updated to reflect new scope of Subpart G.
2.7012.700aApplicability provision in former 2.700a(b) is removed.
2.7022.720(a)-(h)(1)Provisions in former 2.720(h)(2) addressing subpoenas of NRC staff transferred to 2.709.
2.7032.733No substantive change; new subdividing paragraphs added.
2.704NANew mandatory discovery provision analogous to 2.336.
2.705NANew mandatory discovery provision analogous to 2.336.
2.7062.740a, 2.740bConsolidates without substantive change provisions formerly contained in §§ 2.740a and 2.740b.
2.7072.741None.
2.7082.742None.
2.7092.720(h)(2), 2.744Consolidates provisions formerly contained in §§ 2.720(h)(2) and 2.744.
2.7102.749New requirements on timing of summary disposition motions, responses, and presiding officer consideration of the motions.
2.7112.743None.
2.7122.754None.
2.7132.760None.

Table 2.—Cross-References Between Old Provisions of Subpart G and New Subpart C

[NA = no comparable provision in former Subpart G. None = no substantive or editorial change; references to Part 2 sections are corrected]

Old sectionNew sectionDescription/modification
Cross-References to New Subpart C
2.700a2.301Paragraph (b) on applicability is removed.
2.7012.302Addresses facsimile transmissions and electronic mail.
2.7022.303Clarified; no substantive change.
2.7032.312Clarified; adds provision on statement of hearing procedures or subpart for order or notice of hearing.
2.7042.313Clarified and reorganized.
2.7072.320None.
2.708, 2.7092.304Addresses electronic mail; modifies format requirements of documents.
2.7102.306Addresses computation of time for electronic mail and facsimile transmissions.
2.7112.307Clarified.
2.7122.305Addresses facsimile and electronic mail. Adds provision requiring service by most expeditious means, and provision on service on NRC staff when not a party. Deletes provisions on proof of service and free copying.
NA2.308New section on Secretary's duty to forward petitions/requests for hearing to Commission or Chief Judge.
2.7132.314Simplified and expanded.
2.7142.309Changes requirement for standing; requires filing of contentions with petition/request for hearing. Adds provision with standards for discretionary intervention, and adds provision on time limit for issuance of presiding officer's decision on petitions/requests for hearing.
NA2.310New section setting forth criteria for different hearing tracks.
2.714a2.311Clarified; added provision on appeals with respect to selection of hearing procedure.
2.7152.315Clarified; adds requirement for designation of single representative for interested States, local governmental bodies, and affected Federally-recognized Indian Tribes not admitted as parties.
2.715a2.316Clarified and simplified; expanded to cover all proceedings.
2.716, 2.761a2.317Simplifies provision for establishment of separate hearings; no change to provision on consolidation of proceedings.
2.7172.318Conforming changes made to refer to administrative law judge.
2.718, 2.1233(e)2.319Clarified; consolidates several provisions relating to authority of presiding officer.
2.7212.321Conforming changes made to refer to Chief Administrative Judge.
2.7222.322None.
2.7302.323Clarified and expanded to address motions for referral, reconsideration and certification, and accuracy in filing.
2.7312.324None.
Start Printed Page 2219
2.7322.325None.
2.7342.326None.
2.743(c)-(f), (h), (i)2.337Consolidates provisions on evidence at hearing; no substantive changes.
2.7502.327Replaces subsection on provision of free transcripts, and adds new provisions on video recordings.
2.7512.328None.
2.752, 2.751a2.329Consolidates and adds provisions on purpose and objectives of prehearing conferences.
2.7532.330None.
2.7552.331None.
NA2.332New section on case scheduling and management.
2.7572.333Clarifies authority of presiding officer, and adds provisions on cross-examination plans as conforming changes.
NA2.334New section setting forth schedules for proceedings.
2.7582.335Clarifies that paragraph (a) applies to all adjudicatory proceedings.
NA2.336New requirement for disclosure of materials.
NA2.338New section on Alternative Dispute Resolution (ADR).
2.7612.339None.
2.760a, 2.7642.340Consolidates provisions on effectiveness of initial decisions.
2.7632.343None.
2.7702.344None.
2.7712.345NRC staff not provided additional time to respond to petitions for reconsideration.
2.7722.346Clarified; removes provision on Secretary's authority to extend time for Commission review of a Director's denial under 10 CFR 2.206(c) (now addressed in 2.206(c)).
2.7802.347None.
2.7812.348Clarified; no substantive change.
2.7862.341Clarified; codifies Commission practice of discretionary review of requests for interlocutory appeals; modifies provision on exhaustion of administrative remedies.
2.7882.342Modified to include service affected by electronic means.
2.7902.390None.
Cross-References to New Subpart G
2.7002.700Updated to reflect new scope of Subpart G.
2.700a2.701Applicability provision in former 2.700a(b) is removed.
2.720(a)-(h)(1)2.702Provisions in former 2.720(h)(2) addressing subpoenas of NRC staff transferred to 2.709.
2.7332.703No substantive change; new subdividing paragraphs added.
NA2.704New mandatory discovery provision analogous to 2.336.
NA2.705New mandatory discovery provision analogous to 2.336.
2.740a, 2.740b2.706Consolidates without substantive change provisions formerly contained in §§ 2.740a and 2.740b.
2.7412.707None.
2.7422.708None.
2.720(h)(2), 2.7442.709Consolidates provisions formerly contained in §§ 2.720(h)(2) and 2.744.
2.7492.710New requirements on timing of summary disposition motions, responses, and presiding officer consideration of the motions.
2.7432.711None.
2.7542.712None.
2.7602.713None.

Section 2.300—Scope

This section indicates that the provisions of this subpart apply to all adjudications conducted under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, and 10 CFR part 2, unless otherwise specified. Subpart C by its terms does not apply to adjudications conducted under the authority of other statutes or to adjudications provided by the NRC under other parts of title 10 of the Code of Federal Regulations, e.g., procedures governing access to restricted data or national security information or employment clearance under 10 CFR part 10.

Section 2.301—Exceptions

This section indicates that the Commission may use alternative adjudicative procedures where the conduct of military or foreign affairs functions is involved.

Section 2.302—Filing of Documents

This section establishes the alternatives for filing documents with the Commission in Part 2 adjudications, and provides that filing by mail, electronic mail or facsimile is considered complete as of time of Start Printed Page 2220deposit in the mail, or upon electronic mail or facsimile transmission.

Section 2.303—Docket

This section requires the Secretary of the Commission to maintain docket files for each proceeding conducted under Part 2.

Section 2.304—Formal Requirements for Documents; Acceptance for Filing

This section establishes the requirements governing the formatting of documents to be filed in Part 2 adjudications, personal signature of filed documents, the number of copies to be filed with the original, and provides that the NRC may refuse to accept any documents not meeting these requirements.

Section 2.305—Service of Papers, Methods, Proof

This section describes the manner in which documents must be served on the Commission and all parties, and delineates the circumstances under which the Commission will consider service to be complete. Documents which are electronically served by e-mail or facsimile must also be simultaneously served on the Secretary by one of the other methods of service permitted by § 2.305(c). However, such electronic service will be deemed to be by e-mail for purposes of computation of time under § 2.306, unless a party claims that it did not receive the e-mail.

Section 2.305 also states that except for subpoenas, all Commission-issued orders, decisions, notices and other papers will be served upon all parties in a proceeding. Paragraph (f) requires all parties to file all documents that are required to be filed with other parties and the presiding officer, to also be filed upon the NRC staff in proceedings where the NRC staff decides not to participate as a party (as it is permitted to do in certain circumstances under Subparts L, M and N). When the NRC staff informs the presiding officer and parties of its determination not to participate, the NRC staff must designate a person and address for such fillings to be served upon the NRC staff.

Section 2.306—Computation of Time

This section describes how time periods under Part 2 must be computed.

Section 2.307—Extension and Reduction of Time Limits

This section addresses the authority of the Commission and presiding officer to both extend and reduce time limits.

Section 2.308—Treatment of Requests for Hearing/Petitions To Intervene by the Secretary

Section 2.308 is a “housekeeping provision” that describes the action the Secretary of the Commission would take when requests for hearing/petitions to intervene, contentions, answers and replies are received by the Secretary. Under this section, the Secretary would not take action on the merits or substance of the pleadings, but would forward the papers to the Commission or to the Chief Administrative Judge of the Atomic Safety and Licensing Board Panel, as appropriate, for further action.

Section 2.309—Hearing Requests, Petitions To Intervene, Requirements for Standing and Contentions

Section 2.309 establishes the basic requirements for all requests for hearing or petitions to intervene in any NRC adjudicatory proceeding. The section incorporates the basic standing and “one good contention” requirements of existing § 2.714 and applies those requirements to all NRC adjudicatory proceedings, whether formal (Subpart G and J), informal (Subparts L and M), hybrid (Subpart K) or “fast track” (Subpart N).[17]

Standing. The requirements to establish standing for intervention, as set forth in existing § 2.714, continues under § 2.309. For intervention in the proceeding on the licensing of the HLW geologic repository, § 2.309 continues the existing Subpart J requirement that an additional factor—relating to the petitioner's compliance with prehearing disclosure requirements under Subpart J—must be considered in any ruling on intervention. Otherwise, the Commission expects its boards and presiding officers to look to the ample NRC caselaw on standing to interpret and apply this standard. The Commission intends the term, “among other things,” in paragraph (d)(3) to mean that it will consider the totality of information made known to it—not just information submitted in the request for hearing/petition to intervene—in determining whether standing exists.

Discretionary Intervention. Under this section, the presiding officer would consider admitting the petitioner as a matter of discretion where the petitioner has failed to establish his or her standing to intervene as-of-right, if the petitioner requests such consideration. In § 2.309(e), the Commission codifies the discretionary intervention factors that were established in its Pebble Springs decision (Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 & 2), CLI-76-27, 4 NRC 610 (1976)) and requires a presiding officer or Licensing Board to apply those factors in all cases where a petitioner is found to lack standing to intervene under § 2.309(d) and the petitioner, in the initial petition, has asked for such consideration and addressed the pertinent factors. In this way, the Commission hopes to “underscore the fundamental importance of meaningful public participation in [its] adjudicatory process.” See N. States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), CLI-75-1, 1 NRC 1, 2 (1975). Of these criteria, the most important weighing in favor of discretionary intervention is whether the person seeking discretionary intervention has demonstrated the capability and willingness to contribute to the development of the evidentiary record, even though they cannot show the traditional interest in the proceeding. The most important factor weighing against discretionary intervention is the potential to appropriately broaden or delay the proceeding.

Timing of Requests for Hearing/Petitions to Intervene and Contentions. Section 2.309 establishes the requirements for the filing of a petition/hearing request, the content of the request, and the standards that must be met for a late-filed request. For those proceedings for which a Federal Register notice has been published, the requirements are much the same as those in former § 2.714(a)(1), except that § 2.309(b)(1) incorporates the twenty (20) day period for filing of a request for hearing/petition to intervene in license transfer cases governed under Subpart M (the twenty (20) day requirement in former § 2.1306 is deleted by the final rule), § 2.309(b)(2) incorporates the thirty (30) day period for filing of a request for hearing/petition to intervene in proceedings for the licensing of a HLW geologic repository (the thirty (30) day requirement in former § 2.1014 is deleted in the final rule), and section § (b)(3) generally establishes a sixty (60) day period for submission of most requests for hearing/petitions to intervene.

Section 2.309(b)(3)(iii) provides that where a time for submission is not specified in the Federal Register notice, the time period is sixty (60) days from the date of publication in the Federal Register.

For proceedings in which a Federal Register notice is not published, the requirements in § 2.309(b)(4) are derived Start Printed Page 2221from former § 2.1205 but have been supplemented to allow for publication of notice on the NRC Web site at http://www.nrc.gov/​public-involve/​major-actions.html, as providing official notice for purposes of § 2.309(b)(4). Where Federal Register notice is not required by statute or regulation, any notice of agency action (for which an opportunity to request a hearing may be required) published on the portion of the NRC Web site designated as providing official notice for purposes of § 2.309(b)(4) initiates the sixty (60) day period in which timely requests for hearing must be filed.

Regardless of whether notice of the proceeding and opportunity for hearing is required to be published in the Federal Register, all proposed contentions must be filed as part of the initial request for hearing/petition to intervene. The final rule provides a minimum of sixty (60) days from the date of publication (either in the Federal Register or on the NRC Web site) of the notice of opportunity to request a hearing for the filing of requests/petitions to intervene and contentions, except for license transfer cases, for which a period of twenty (20) days is provided, initial authorization to construct a HLW geologic repository and the initial license to receive and posses HLW at a geological repository operations area, for which a period of thirty (30) days is provided. Late-filed requests for hearing/petitions are governed by the criteria set forth in § 2.309(c) (formerly § 2.714(a)(1)(i) through (v)).

Contentions. Section 2.309(f) requires that the petition to intervene include the contentions that the petitioner proposes for litigation along with documentation and argument supporting the admission of the proffered contentions. Paragraphs (f)(1) and (2) of § 2.309 incorporate the longstanding contention support requirements of former § 2.714—no contention will be admitted for litigation in any NRC adjudicatory proceeding unless these requirements are met. Paragraph (f)(2) addresses the standards for amending existing contentions, or submitting new contentions based upon documents or other information not available at the time that the original request for hearing/petition to intervene was required to be filed. Paragraph (f)(2) incorporates the substance of existing § 2.714 (b)(2)(iii) with regard to new or amended environmental contentions—new or amended environmental contentions may be admitted if the petitioner shows that the new or amended contention is based on data or conclusions in the NRC's environmental documents that differ significantly from the data or conclusions in the applicant's documents. Of course, new or amended environmental documents must be submitted promptly after the NRC's environmental documents are issued. For all other new or amended contentions the rule makes clear that the criteria in § 2.309(f)(2)(i) through (iii) must be satisfied for admission. Include in these standards is the requirement that it be shown that the new or amended contention has been submitted in a timely fashion based on the timing of availability of the subsequent information. See § 2.309(f)(2)(iii). This requires that the new or amended contention be filed promptly after the new information purportedly forming the basis for the new or amended contention become available. Included in these standards is the requirement that it be shown that the new or amended contention has been submitted in a timely fashion based on the availability of the subsequent information. See § 2.302(f)(iii). This requires that the new or amended contention be filed promptly after the new information purportedly forming the basis for the new or amended contention becomes available. A significant change, relative to existing requirements, is that the requirement to proffer specific, adequately supported contentions in order to be admitted as a party to the proceeding is extended to informal proceedings under Subpart L, as well as Subparts K, M, and N.

Another significant area of change is where two or more requestors/petitioners seek to co-sponsor a contention, and where a requestor/petitioner seeks to adopt the contention of another sponsoring requestor/intervenor. Under § 2.309(f)(3), requestors/petitioners cosponsoring a contention must jointly designate a representative who shall have the authority to act for all requestors/petitioners. Similarly, if a requestor/petitioner seeks to adopt the contention of another sponsoring requestor/intervenor, the requestor/petitioner must agree that the sponsoring requestor/petitioner shall act as the representative with respect to that contention. If the sponsoring party is subsequently dismissed from the proceeding for reasons other than resolution of its contentions, the party who adopted the contention may continue to pursue the contention, or seek dismissal.

Appropriate Hearing Procedures. Section 2.309(g) requires that the request for hearing/petition to intervene address the question of the type of hearing procedures (e.g., formal hearings under Subpart G, informal hearings under Subpart L, “fast track” informal procedures under Subpart N) that should be used for the proceeding. This is not a requirement for admission as a party to the proceeding, but a requestor/petitioner who fails to address the hearing procedure issue would not later be heard to complain in any appeal of the hearing procedure selection ruling. In addition, the final rule requires that if the requestor/petitioner asks for a formal hearing on the basis of § 2.310(d), the request for hearing/petition to intervene must demonstrate, by reference to the contention and the bases provided and the specific procedures in Subpart G, that resolution of the contention necessitates resolution of material issues of fact which may be best determined through the use of the identified procedures.

State and Local Governments and Affected Indian Tribes. Section 2.309(d)(2) addresses the participation of States, local governmental bodies, and affected, Federally-recognized Indian Tribes as parties in NRC adjudicatory proceedings. The final rule continues the existing requirement in § 2.1014(c) that a State, local governmental body, or affected Federally-recognized Indian Tribe who wishes to be a party in a HLW geologic repository proceeding must file at least one good contention. A significant change, relative to the former requirement in § 2.714, is that a State, local governmental body, or affected Federally-recognized Indian Tribe who wishes to be a party in a proceeding for a facility which is located within its boundary are explicitly relieved of the obligation to demonstrate standing in order to be admitted as a party. A State, local governmental body, or Federally-recognized Indian Tribes who wishes to be a party in a proceeding for a facility which is not located within its boundary must address standing. However, a State, local governmental body, or Federally-recognized Indian Tribe which is adjacent to a facility or, for example, has responsibilities as an offsite government for purposes of emergency preparedness, and presents such information in its request/petition, would ordinarily be accorded standing.

Another significant change from the requirements of former § 2.714 is that under § 2.309(d)(2) each State, local governmental body, and Federally-recognized Indian Tribe who wishes to be a party in a proceeding must each designate a single representative in the proceeding (an analogous requirement requiring “interested” States, local governmental bodies, and Federally-recognized Indian Tribes to each Start Printed Page 2222designate a representative is included in § 2.315(c) of the final rule). 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).

The Commission has deleted the language in the second sentence of the proposed § 2.309(d)(ii) regarding identifying contentions on which a State, local governmental body or Federally-recognized Indian Tribe “wishes to participate,” inasmuch as that provision applies only to “interested” States, local governmental bodies, and Federally-recognized Indian Tribes under § 2.315(c).

Answers and Replies. Section 2.309(h) allows the applicant or licensee and the NRC staff twenty-five (25) days to file written answers to requests for hearing/petitions to intervene and contentions, and allows the petitioner to file a written reply to the applicant/licensee and staff answers within seven (7) days after service of any answer. No other written answers or replies will be entertained.

Decision on Request/Petition. Section 2.309(i) is a new provision that requires the presiding officer to render a decision on each request for hearing/petition to intervene within forty-five (45) days after the filing of all answers and replies under paragraph (h) of this section. If additional time is needed, § 2.309(i) permits the presiding officer to seek an extension from the Commission.

Section 2.310—Selection of Hearing Procedures

Section 2.310 of the final rule sets forth the criteria to be applied by the Commission, a presiding officer, or an Atomic Safety and Licensing Board in determining the hearing procedures to be utilized in the proceeding. Unless otherwise provided in § 2.310, proceedings involving hearings on the grant, renewal, licensee-initiated amendment or termination of licenses and permits subject to 10 CFR Parts 30, 32 through 35, 36, 39, 40, 50, 52, 54, 55, 61, 70 and 72 must ordinarily use Subpart L procedures. Thus, Subpart L procedures will be used, as a general matter, for hearings on nuclear power reactor construction permit and operating license applications under Parts 50 and 52, nuclear power reactor license renewal applications under Part 54, nuclear power reactor license amendments under Part 50, reactor operator licensing under Part 55, and nearly all materials and spent fuel storage licensing matters.

Subpart G procedures will ordinarily be used in four types of proceedings: Proceedings on the construction and operation of uranium enrichment facilities (required by Section 193 of the AEA to be a formal, “on-the-record” adjudication), proceedings on enforcement matters (unless all parties agree to use other procedures such as Subpart L), proceedings for the initial authorization to construct a HLW geologic repository, and proceedings for the initial issuance of a license to receive and possess HLW at a HLW geologic repository.

In addition, the final rule provides that Subpart G procedures will be used in licensing proceedings for nuclear power reactors if the Commission or presiding officer finds, based upon the materials submitted in the request for hearing/petition to intervene under § 2.309, that resolution of a proposed contention requires resolution of: (1) Issues of material fact relating to the occurrence of a past activity, where the credibility of an eyewitness may reasonably be expected to be at issue, and/or (2) issues of motive or intent of a party or eyewitness material to the resolution of the contested matter. The first criterion contains two elements: The first is that there is a dispute of material fact concerning the occurrence of (including the nature or details of) a past activity. This includes situations where all parties agree that an activity occurred (e.g., a conversation between a worker and a supervisor), but there is disagreement over the details of the activity (e.g., the worker alleges that the supervisor directed him/her to do an illegal act and the supervisor denies the allegation). However, this element does not include the testimony of any expert witness who has no first hand knowledge of the activity, inasmuch as the expert is simply providing an opinion based upon the testimony of others, and cross-examination in particular of the expert witness is not necessary to evaluate the weight to be given to his or her opinion. The second element is that the credibility of the eyewitness may reasonably be expected to be at issue. Examples of such credibility disputes include whether the eyewitness possessed the physical capability to experience the activity, or whether the eyewitness accurately describes the activity. This does not include disputes between parties over the qualifications and professional “credibility” of expert witnesses who have no first-hand knowledge of the disputed event/facts. Subpart G procedures such as cross-examination are not necessary for parties to effectively challenge the qualifications and professional “credibility” of an expert.

The second alternative criterion for determining whether Subpart G procedures should be used in a proceeding is whether the contention/contested matter necessarily requires a consideration and resolution of the motive or intent of a party or eyewitness. For example, a contention alleging deliberate and knowing actions to violate NRC requirements by an applicant's representative necessarily requires resolution of the motive or intent of the applicant and its representative. Application of Subpart G procedures should be considered in such circumstances. By contrast, disputes over the motive or intent of an expert witness who was not an eyewitness are not relevant in determining whether to apply Subpart G procedures, inasmuch as such issues are not relevant to the decision criteria of the presiding officer (e.g., whether the contested application meets NRC requirements), and may easily be addressed in written filings and oral argument.

If a presiding officer determines that a contention meets the criteria in § 2.310(d), resolution of that contention will proceed using Subpart G procedures. To facilitate orderly conduct of the Subpart G hearing where there are several contentions meeting § 2.310(d), the presiding officer should schedule the resolution of the contentions in parallel. If the presiding officer has determined that one or more admitted contentions do not meet the criteria in § 2.310(d), those contentions will be resolved by the presiding officer in a separate Subpart L hearing. Parties admitted only with respect to contentions to be resolved under Subpart L hearing procedures do not have any right to participate in the Subpart G hearing, and parties admitted only with respect to contentions to be resolved using Subpart G hearing procedures do not have any right to participate in the Subpart L hearing.

The special hybrid hearing procedures in Subpart K continue to apply to hearings in proceedings on the expansion of spent fuel storage capacity at civilian nuclear power reactors. Similarly, the special informal hearing procedures in Subpart M continue to apply to hearings in proceedings on reactor or material license transfers. Start Printed Page 2223

New, informal “fast-track” procedures in Subpart N may be used by direction of the Commission if the proceeding is expected to take no more than two (2) days to complete, or if all parties agree to the use of the “fast-track” procedures.

The Commission has added a new Subpart O that provides for procedures to be used if the Commission decides to hold “legislative hearings.” The legislative hearing procedures would be used in any design certification rulemaking hearings which the Commission in its discretion determined to hold under § 52.51(b). Conforming changes to § 52.51(b) are made to remove the hearing procedures currently contained in paragraph (b) of § 52.51. The legislative hearing procedures in Subpart O could be used at the Commission's discretion in developing a record to assist the Commission in resolving, under § 2.335(d), a petition filed under § 2.335(b).

Section 2.311—Interlocutory Review of Rulings on Requests for Hearing/Petitions To Intervene and Selection of Hearing Procedures

Section 2.311 continues unchanged the provision in former § 2.714a that limits interlocutory appeal of rulings on requests for hearing and petitions to intervene to those that grant or deny a petition to intervene. However, paragraph (d) represents a new provision dealing with appeals of orders selecting hearing procedures. Appeals must be filed within ten (10) days of the order selecting hearing procedures, and the sole grounds for appeal is that the selection of hearing procedure was in contravention of the applicable criteria in § 2.310.

Section 2.313—Designation of Presiding Officer, Disqualification, Unavailability, and Substitution

Section 2.313 addresses who may be designated as a presiding officer in hearing tracks. In general, unless the Commission designates otherwise, the Chief Administrative Judge may designate either an Atomic Safety and Licensing Board or an administrative law judge as the presiding officer for a hearing conducted under Subparts G, J, K, L, or N, and may designate either an Atomic Safety and Licensing Board, an administrative law judge, or an administrative judge as the presiding officer for a hearing conducted under Subpart M. The Commission alone has authority to decide who shall be a presiding officer in a Subpart O hearing.

Section 2.313 also addresses the disqualification, unavailability and substitution of a presiding officer, and continues without substantive change the comparable provisions on disqualification, unavailability, and substitution of a presiding officer (including a member of a Licensing Board) in former § 2.704.

Section 2.314—Appearance and Practice Before the Commission in Adjudicatory Proceedings

Section 2.314 simplifies and expands the existing provisions in §§ 2.713 and 2.1215 on appearance and representation in NRC adjudications. For example, the new rule requires all persons appearing in a representative capacity to file a notice of appearance providing a facsimile number, and an e-mail address, if the person possesses either or both.

Section 2.315—Participation by a Person Not a Party

This section continues largely unchanged the provisions in former § 2.715(a) and (b). However, several clarifying changes have been made in the language of this section. For example, in paragraph (a), a sentence has been added to clarify that statements of position submitted by a person who is not a party shall not be considered evidence in the proceeding. In paragraph (d), the language has been clarified to make clear that the motion for leave to file an amicus brief may be submitted with the amicus brief itself. Regardless of the nature of participation by a person who is a non-party, that person does not possess any of the rights and privileges of a person who has attained the status of a party, including taking an appeal to the Commission, or to judicial review of an agency final decision.

Substantial changes have been made to § 2.315(c), in part to use language which is consistent with the final version of § 2.309(d), and to reflect the Commission's determination that interested States, governmental bodies (counties, municipalities or other subdivisions) and affected Federally-recognized Indian Tribes must identify prior to the commencement of the hearing the contentions on which they wish to participate. Also, the final rule, unlike existing § 2.715(c), requires each interested State, governmental body and Indian Tribe to designate a single representative for the proceeding; the Commission will no longer permit multiple agencies or offices within a political entity to separately participate under § 2.315(c).

Section 2.316—Consolidation of Parties

This section clarifies the language in former § 2.715a regarding consolidation of parties, and expands the applicability of the section from construction permit and operating license proceedings for production and utilization facilities under the former rule, to all proceedings.

Section 2.317—Separate Hearings; Consolidation of Proceedings

This section expands upon the general concept in existing § 2.761a that separate hearings may be appropriate in certain instances. In addition, this section incorporates without change the provisions for consolidation of proceedings currently in § 2.716.

Section 2.318—Commencement and Termination of Jurisdiction of Presiding Officer

This section continues without change the existing provisions in § 2.717 with respect to the commencement and termination of the jurisdiction of a presiding officer. A conforming change is made to § 2.107, “Withdrawal of application,” to clarify that the Commission shall dismiss a proceeding when an application has been withdrawn before a notice of hearing has been issued.

Section 2.319—Power of the Presiding Officer

This section consolidates provisions in former § 2.718 and § 2.1233(e), and identifies the authority and powers of the presiding officer. Although the substance of the regulation remains unchanged, in some cases the regulation was clarified. For example, the language in § 2.319(d) derived from former § 2.718(c) was expanded to make clear the presiding officer's power to strike any portion of a written presentation that is cumulative, irrelevant, immaterial or unreliable. In other instances, the regulation includes a provision that identifies a power that presiding officers have always possessed, but was not specifically identified in the former regulation. For example, § 2.319(c) was added to make clear the presiding officer's power to consolidate parties and proceedings, which were formerly addressed in §§ 2.715a and 2.716.

Section 2.320—Default

Section 2.320 establishes the circumstances under which a presiding officer may declare a default, and describes the actions that may be taken upon a default. This section continues without change the provisions that were formerly in § 2.707. Start Printed Page 2224

Section 2.321—Atomic Safety and Licensing Boards

This section addresses the Commission's establishment of Atomic Safety and Licensing Boards, and states the general authority of these boards to exercise the powers granted to presiding officers under § 2.319, as well as any other powers as enumerated in Part 2. The quorum requirements of a Licensing Board, as well as the authority of the Chief Administrative Judge to exercise powers with respect to a proceeding when a board is not in session are also set forth. This section continues without change the provisions that were formerly in § 2.721.

Section 2.322—Special Assistants to the Presiding Officer

Section 2.322 authorizes a presiding officer (including an Atomic Safety and Licensing Board), after consultation with the Chief Administrative Judge, to appoint special assistants to assist the presiding officer in taking evidence and preparing a suitable record for review. This section restates the provisions of former § 2.722 without change.

Section 2.323—Motions

This section incorporates the substance of existing § 2.730 in Subpart G on the general form, content, timing, and requirements for motions and responses to motions. The final rule departs from former § 2.730 by establishing a “compelling circumstances” standard for evaluating motions for reconsideration. Such circumstances include the “existence of a clear and material error in a decision, which could not have reasonably been anticipated, that renders the decision invalid” (this standard is also reflected in § 2.345(b)). Section 2.323 also addresses referral of rulings and certified questions by the presiding officer to the Commission. With regard to referrals, § 2.323(f) provides for referrals of decisions or rulings where the presiding officer determines that the decision or ruling involves a novel issue that merits Commission review at the earliest opportunity. Section 2.323 also differs from the existing requirements by including a specific provision in paragraph (f)(2) which allows any party to file with the presiding officer a petition for certification of issues for early Commission review and guidance.

Section 2.324—Order of Procedure

This section addresses the authority of the presiding officer and Commission to designate the order of procedures in a hearing, and provides that the proponent of an order will ordinarily open and close. This section restates the provisions of § 2.731 without change.

Section 2.325—Burden of Proof

This section provides that unless the presiding officer orders otherwise, the applicant or the proponent of an order bears the burden of proof (risk of non-persuasion). This section restates the provisions of § 2.732 without change.

Section 2.326—Motions To Reopen

This section governs the procedure, timing and criteria governing motions to reopen a closed record. This section restates the provisions of § 2.734 without change.

Section 2.327—Official Reporter; Transcript

This section governs the creation, correction and availability of official transcripts of NRC hearings. This section restates the provisions of § 2.750, but removes the provision on free transcripts.

Section 2.328—Hearings To Be Public

This section requires that all hearings be public, unless otherwise requested under Section 181 of the AEA. This section restates the provisions of § 2.751 without change.

Section 2.329—Prehearing Conference

This section addresses the scheduling and matters to be addressed in a prehearing conference. The prehearing conference is the primary tool by which the Commission or presiding officer, as applicable, will provide effective management of the proceeding. This section incorporates provisions in § 2.752 and § 2.751a, and eliminates reference to a “special prehearing conference” in production and utilization facility construction permit and operating license proceedings. Some of the provisions in those sections have been combined and clarified.

Section 2.330—Stipulations

This section addresses the use of stipulations, which the Commission encourages to focus the hearing on the contested matters between the parties. This section restates the provisions in § 2.753 without change.

Section 2.331—Oral Argument Before the Presiding Officer

This section addresses the authority of the presiding officer to determine whether oral argument will be held on any matter, and to set time limits on the oral argument. This section restates the provisions in § 2.755 without change.

Section 2.332—General Case Scheduling and Management

This section addresses general case scheduling and management. It requires a presiding officer to consult with the parties early in the proceeding in order to set schedules, establish deadlines for discovery and motions, where appropriate, and set the ground rules for the control and management of the proceeding. The section also addresses integration of the NRC staff's preparation of its safety and environmental review documents into the hearing process schedules.

Section 2.333—Authority of the Presiding Officer To Regulate Procedure in a Hearing

This section sets forth the general authority of the presiding officer to regulate the procedure in a hearing, to ensure that argumentative, repetitious, cumulative, irrelevant, unreliable, and immaterial evidence is not introduced into the record, and to provide for an orderly and expeditious conduct of the hearing.

Section 2.334—Schedules for Proceedings

Section 2.334 codifies the guidance in the Commission's 1998 Statement of Policy on the Conduct of Adjudicatory Proceedings that suggested that presiding officers should establish and maintain “milestone” schedules for the completion of hearings and the issuance of initial decisions. The section requires a presiding officer to establish a hearing schedule, and to notify the Commission if there are slippages that would delay the issuance of the initial decision more than sixty (60) days from the date established in the schedule. The notification must include an explanation of the reasons for the delay and a description of the actions, if any, that can be taken to avoid or mitigate the delay.

Section 2.335—Consideration of Commission Rules and Regulations in Adjudicatory Proceedings

This section, which was formerly designated § 2.758, governs situations where a party contends that an NRC rule or regulation should not be applied, or otherwise attempts to challenge the validity of the rule or regulation. No changes have been made to the regulatory language. However, the Commission notes that it has adopted a new Subpart O, “Legislative Hearings,” which provides the Commission with the option to conduct a “legislative hearing” to, inter alia, assist it in resolving a question certified to it by the presiding officer under § 2.335(d). Start Printed Page 2225

Section 2.336—General Discovery

Section 2.336 generally imposes a disclosure requirement on all parties except the NRC staff, whose disclosure obligations are addressed in 2.336(b)) in all proceedings under Part 2, except for proceedings using the procedures of Subparts G and J. This generally applicable discovery provision requires each party to disclose and/or provide the identity of witnesses and copies of the analysis or other authority upon which that person bases his or her opinion. The duty of disclosure continues during the pendency of the proceeding. If a document, data compilation, or tangible thing required to 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, the title and a page reference to the relevant document, data compilation, or tangible thing. Section 2.336(b) sets forth the disclosure obligations of the NRC staff, regardless of whether it is a party. The discovery required by § 2.336 constitutes the totality of the discovery that may be obtained in informal proceedings. The final rule makes clear that the mandatory disclosure obligations of the NRC staff in § 2.336 do not apply in Subpart J proceeding, unless the Commission, presiding officer, or Atomic Safety and Licensing Board specifically orders. Section 2.336 authorizes the presiding officer to impose sanctions against parties who fail to comply with this general discovery provision, including prohibiting the admission into evidence of documents or testimony that a party failed to disclose as required by this section unless there was good cause for the failure (this sanction is similar to that provided in the rules of practice of the Environmental Protection Agency, 40 CFR 22.19(a), 22.22(a)).

Section 2.337—Evidence at a Hearing

This section contains the provisions relating to evidence that were formerly in § 2.743(c)-(f), (h)-(i), relating to admissibility of evidence, offering of objections, offers of proof, receipt of exhibits into evidence, keeping of the official record, and criteria for obtaining official notice.

Section 2.377(g) governs the need for admission of NRC staff documents into the hearing record, and replaces the provisions in former § 2.743(g). Section 2.337(g)(1) provides that in proceedings involving an application for a facility construction permit, the NRC staff shall offer into evidence the ACRS report,[18] the NRC's safety evaluation, and the environmental impact statement (EIS) prepared under 10 CFR Part 51. In proceedings involving applications other than a construction permit for a production or utilization facility where the NRC staff is a party, § 2.337(g)(2) requires the NRC staff to offer into evidence any ACRS report on the application, at the discretion of the NRC staff the safety evaluation prepared by the staff and/or testimony and evidence on the contention/controverted matter, any NRC staff position on the contention/controverted matter provided to the presiding officer under § 2.1202(a)(see the fourth item below), and the EIS or environmental assessment (EA) if there are matters in controversy with respect to the adequacy of the EIS or EA. If the NRC staff is not a party in such proceedings (as it may choose under, e.g., Subpart L), the NRC staff shall offer into evidence, together with a sponsoring witness (except in the case of the ACRS report [19] ), any ACRS report on the application, at the discretion of the NRC staff the NRC staff's safety evaluation and/or testimony and evidence on the contention/controverted matter, any statement of position on the contention/controverted matter in controversy provided to the presiding officer (see the fourth item below), and the EIS or environmental assessment (EA) if there are matters in controversy with respect to the adequacy of the EIS or EA. However, the NRC staff is not to be treated as a party solely due to its sponsoring these documents for admission into the record of the proceeding, analogous to its role in a Subpart M proceeding where the NRC staff is not required to be a party but must nonetheless offer into evidence with a sponsoring witness the SER associated with the proposed license transfer.

Section 2.338—Settlement of Issues; Alternate Dispute Resolution

Section 2.338 is a new provision that consolidates and amplifies the previous rules pertaining to settlement (10 CFR 2.203, 2.759, 2.1241). Section 2.338 describes the required form and content of settlement agreements and provides guidance on the use of settlement judges as mediators in NRC proceedings. The Commission intends no change in the bases for accepting a settlement under the new rule.

Section 2.339—Expedited Decisionmaking Procedure

This section, formerly designated § 2.763, has not been substantively changed.

Section 2.340—Initial Decision in Contested Proceedings on Applications for Facility Operating Licenses

This section consolidates provisions on the effectiveness of initial decisions which were formerly in §§ 2.760a and 2.764. No substantive changes were made to the provisions, but conforming changes were made to reference the applicable provisions of new Subpart C that were formerly in Subpart G.

Section 2.341—Review of Decisions and Actions of a Presiding Officer

This section essentially restates former § 2.786. However, paragraph (f) clarifies that the Commission will entertain in its discretion petitions by a party for review of an interlocutory matter in the circumstances described in paragraph (f). This is consistent with the current Commission practice under former § 2.786. Minor changes are also being made to give guidance on the form and content of briefs. For example, the final rule increases the number of pages permitted for a petition for review of a decision of a presiding officer and any replies to the petition, from the current limit of ten (10) pages to twenty-five (25) pages.

Section 2.342—Stays of Decisions

This section describes the procedures and the standards for granting stays of decisions by a presiding officer (including decisions where the Commission is acting as the presiding officer). No substantive changes have been made to this provision, which was formerly designated § 2.788.

Section 2.343—Oral Argument

No substantive changes have been made to this provision, which was formerly designated § 2.763.

Section 2.344—Final Decision

No substantive changes have been made to this provision, which was formerly designated § 2.770.

Section 2.345—Petition for Reconsideration

This section continues largely unchanged the provisions in former § 2.771, but no longer provides the NRC staff with two additional days to file a reply brief. The NRC staff would be treated as any other party and have ten Start Printed Page 2226(10) days to file a reply brief to a petition for reconsideration.

Section 2.346—Authority of the Secretary

This section sets forth the authority of the Secretary to act for the Commission on matters designated in this section. It differs from its predecessor (§ 2.772) by clarifying some of the matters on which the Secretary may act, and no longer addresses the Secretary's authority to extend the time for Commission review of Director's Decisions under § 2.206 (this is now addressed in revised § 2.206(c)).

Section 2.347—Ex Parte Communications

This section sets forth the limitations on ex parte communications between interested persons and NRC adjudicatory employees. No substantive changes have been made to this provision, which was formerly designated § 2.780.

Section 2.348—Separation of Functions

This section sets forth the requirements applicable to the NRC in order to maintain separation of functions within the NRC. No change has been made to this provision, which was formerly designated § 2.781.

Section 2.390—Public Inspections, Exemptions, Requests for Withholding

This section, which was formerly designated § 2.790, sets forth provisions of generic applicability concerning the public's access to information which apply irrespectively of whether there is an NRC proceeding. Following the publication of the proposed amendments to Part 2, the Commission adopted a final rule amending § 2.790 to revise the procedures regarding the submission and agency handling and disclosure of proprietary, confidential, and copyrighted information (68 FR 18836; Apr. 17, 2003). Section 2.390 now incorporates these amendments. The final rule also reflects the addition of a footnote to paragraph (a), which provides that “final NRC records and documents” do not include handwritten notes, nor do they include any drafts. Drafts which are protected from disclosure include documents prepared by NRC personnel, as well as documents prepared by contractors retained by the NRC.

6. Subpart G—Sections 2.700-2.713

Subpart G is a specialized hearing track containing the Commission's procedures for the conduct of on-the-record adjudicatory proceedings. Provisions of general applicability have been removed from Subpart G and transferred to new Subpart C. Most of the remaining provisions have been restated without change except for renumbering and internal cross-reference changes. Some provisions have been amended to better reflect current Commission policy regarding the conduct of adjudicatory proceedings and current Federal practice, for example, with respect to discovery. Subpart G (as with all other specialized hearing tracks) is to be used in conjunction with the rules of general applicability contained in Subpart C. Following is a section-by-section analysis of Subpart G.

Section 2.700—Scope of Subpart G

This section reflects the revised applicability of this Subpart to a limited set of proceedings for which formal adjudicatory procedures may be used.

Section 2.701—Exceptions

This section indicates that the Commission may use alternative adjudicative procedures where the conduct of military or foreign affairs functions is involved.

Section 2.702—Subpoenas

Section 2.702 is fundamentally a restatement of former § 2.720(a)-(h)(1).

Section 2.703—Examination by Experts

This section restates, with one exception, the requirements in former § 2.733 regarding the use of experts to examine and cross-examine witnesses of other parties. However, consistent with § 2.711(c), which authorizes the presiding officer to require filing of cross-examination plans, the Commission believes that a party seeking permission to use an expert to conduct cross-examination should file a proposed cross-examination plan in accordance with § 2.711(c).

Section 2.704—Discovery—Required Disclosures

New §§ 2.704 and 2.705 revise the general provisions for discovery in Subpart G proceedings, except for discovery against the NRC staff. These new discovery provisions, which are analogous to the disclosure provisions in § 2.336, provide for the prompt and open disclosure of relevant information by the parties, without resort to formal processes, unless intercession by the presiding officer becomes necessary. Section 2.704 sets forth the disclosures that all parties must make to other parties; a party need not file a request for the information required to be disclosed under § 2.704.

Section 2.705—Discovery—Additional Methods

Section 2.705 sets forth the additional methods of discovery that are permitted. It is expected that the new regulations would eliminate or substantially limit the need for formal discovery in adjudicatory proceedings, and at the same time, make explicit the presiding officer's authority to limit the scope and quantity of discovery in a particular proceeding, should the need arise.

Sections 2.706—Depositions Upon Oral Examination and Upon Written Interrogatories; Interrogatories to Parties

This section consolidates, without substantive change, the provisions regarding depositions and interrogatories that were formerly addressed in § 2.740a and § 2.740b.

Section 2.707—Production of Documents and Things; Entry Upon Land for Inspections and Other Purposes

This section restates the provisions in former § 2.741 with minor clarifying and grammatical corrections, and revised references to sections in Subparts C and G.

Section 2.708—Admissions

This section restates the provisions in former § 2.742 without substantive change.

Section 2.709—Discovery Against the NRC Staff

This section consolidates former §§ 2.720(h)(2) and 2.744, both of which addressed discovery against the NRC. The need for formal discovery against the NRC staff should be minimal, in view of the Commission's general policy of making all available documents public (see, e.g., 10 CFR 9.15), subject only to limited restrictions (e.g., those needed to protect enforcement, proprietary information, under 10 CFR 9.17). Except for the foregoing, the substantive aspects of the former regulations are unchanged.

Section 2.709 provides that when the NRC is a party, the Executive Director for Operations (EDO) will designate the NRC staff personnel to perform a number of functions relevant to the conduct of the proceeding, including answering written interrogatories and being witnesses for oral hearing or deposition (as applicable). As is the current practice, the EDO may delegate this function to a person or persons designated by the EDO.Start Printed Page 2227

Section 2.710—Motions for Summary Disposition

Section 2.710 generally retains the former provisions of § 2.749 regarding summary disposition. However, § 2.710 requires that summary disposition motions be filed within twenty (20) days of the close of discovery; responses to motions must be filed twenty (20) days thereafter. The final rule requires the presiding officer to address the summary disposition motion within 40 days after the last response to the motion is filed, and delineates the presiding officer's options for addressing the motion. Apart from deciding the motion, the presiding officer is given discretion not to consider a motion for summary disposition unless he or she determines that resolution of the motion will serve to expedite the proceeding. The presiding officer may also summarily dismiss or hold in abeyance any untimely summary disposition motions filed shortly before or during the oral hearing, if the presiding officer determines that substantial resources must be diverted from the hearing to adequately address the motion.

Section 2.711—Evidence

This section restates the requirements in former § 2.743 without change.

Section 2.712—Proposed Findings and Conclusions

This section continues, without change, the provisions of former § 2.754 regarding the requirement for the submission of proposed findings of fact and conclusions of law following completion of a formal hearing.

Section 2.713—Initial Decision and Its Effect

This section restates the requirements in former § 2.760 without change.

7. Subpart I—Sections 2.900-2.913

Section 2.901 has been revised to specify that the procedures for handling Restricted Data and National Security Information in Subpart I apply to proceedings under subparts G, J, K, L, M, and N.

The definition of “party” for this subpart has been amended to refer to §§ 2.309 and 2.315. No substantive change is intended by the corrected references.

8. Subpart J—Sections 2.1000-2.1027

The Commission is making a number of changes to §§ 2.1000, 2.1001, 2.1010, 2.1012, 2.1013, 2.1014, 2.1015, 2.1016, 2.1018, 2.1019, 2.1021, and 2.1023. The changes are intended to: (1) Correct references to rules of general applicability in former provisions of Subpart G that are being transferred to Subpart C, and (2) eliminate redundant or duplicate provisions in Subpart J that would be covered by the generally applicable provisions in Subpart C. Because these are conforming changes, a section-by-section analysis of the revisions to Subpart J is not provided.

9. Subpart K—Sections 2.1101-2.1119

Subpart K continues to be the Commission's specialized hearing track for contested proceedings on licenses or license amendments to expand spent fuel storage capacity at a civilian nuclear power plant site. Subpart K is to be used in conjunction with the rules of general applicability in Subpart C. Following is a section-by-section analysis of the revisions to Subpart K.

Section 2.1109—Requests for Oral Argument

This section is modified to clarify that a hearing on any contentions that remain after the oral argument under Subpart K will be conducted using the hearing procedures of Subpart L.

Section 2.1111

This section is removed and reserved for future use.

Section 2.1113—Oral Argument

Paragraph (a) of this section requires each party to submit a summary of the facts, data, and arguments which the party proposes to rely upon in the oral argument addressing whether the criteria in § 2.1115(b) have been met for holding an adjudicatory hearing, as well as all supporting facts and data in the form of sworn written testimony or written statements. These submissions must be made to the presiding officer and simultaneously on all other parties no later than twenty-five (25) days before the oral argument is scheduled. Paragraph (b) permits, but does not require, a party to submit a reply to the written summaries, facts, data and arguments; this reply must be filed on the presiding officer and simultaneously on all other parties no later than ten (10) days before the oral argument is scheduled. Paragraph (c) retains the requirements in former § 2.1113(b) without change.

Section 2.1117—Burden of Proof

This section states that while the applicant for the spent fuel pool expansion license amendment bears the ultimate burden of proof (risk of non-persuasion) on admitted contentions, the proponent of an adjudicatory hearing bears the burden of demonstrating that the criteria in § 2.1115(b) have been met and thus, an adjudicatory hearing should be held.

Section 2.1119—Applicability of Other Sections (§ 2.1117 in Proposed Rule)

This section is modified to add a reference to new Subpart C. By cross-referencing Subpart C, the Commission intends to make clear that the generally-applicable provisions of that Subpart, which are not addressed by more specific provisions in Subpart K, apply throughout a Subpart K proceeding. For example, the provisions in § 2.335 for directed certification of a Licensing Board determination of a petition on application of a Commission rule or regulation applies throughout the Subpart K proceeding, including the oral hearing and the presiding officer's determination under § 2.1115.

10. Subpart L—Sections 2.1200-2.1213

Subpart L constitutes the Commission's generally-applicable hearing procedure to be used in most proceedings unless one of the more specialized hearing tracks, e.g., Subparts G, J, K, M, or N, applies. Subpart L is to be used in conjunction with the rules of general applicability contained in Subpart C.

The hearing procedures in this subpart are patterned after the Subpart M provisions on license transfers, but have been modified and supplemented to provide for a more generic hearing procedure as compared to Subpart M. The Subpart L procedures shift the focus to more informal oral hearings (e.g., record developed through oral presentation of witnesses who are subject to questioning by the presiding officer), although all parties could agree to conduct the hearing based solely upon written submissions. Following is a section-by-section analysis of the revisions to Subpart L.

Section 2.1200—Scope of Subpart

Section 2.1200 indicates that Subpart L may be applied to all NRC adjudicatory proceedings except proceedings on the licensing of the construction and operation of a uranium enrichment facility, proceedings on an initial application for construction authorization for a high-level radioactive waste repository at a geologic repository operations area noticed under §§ 2.101(f)(8) or 2.105(a)(5), proceedings on an initial application for a license to receive and possess high-level radioactive waste at a geologic repository operations area, proceedings on enforcement matters unless all parties otherwise agree and request the application of Subpart L procedures, and proceedings for the Start Printed Page 2228direct 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.

Section 2.1201—Definitions

Section 2.1201 provides that Subpart L has no unique definitions but relies on the definitions in existing § 2.4.

Section 2.1202—Authority and Role of NRC Staff

Section 2.1202 describes the authority and role of the NRC staff in the informal hearings under Subpart L. Similar to the situation in license transfer cases under Subpart M, the NRC staff would be expected to conduct its own reviews and take action on the application or matter that is the subject of the hearing, despite the pendency of the hearing. Section 2.1202(a) requires the NRC staff to provide notice to the presiding officer of the NRC staff's action on the application or the underlying regulatory matter for which a hearing was provided, as applicable. The notice must include the staff's explanation why it may take action on the application or the underlying regulatory matter despite the pendency of the contested matter before the presiding officer. In licensing proceedings, that explanation should ordinarily address why the public health and safety is protected and common defense and security is promoted despite the pendency of the contested matter. In no event, however, should the staff's explanation set forth a position on, or otherwise assume an advocacy position with respect to the contested matter in the adjudication before the presiding officer. The NRC staff's action on the application or matter would be effective upon issuance except in matters involving an application to construct or operate a production or utilization facility, an application for amendment to a construction authorization for a HLW repository, an application for the construction and operation of an independent spent fuel storage installation or monitored retrievable storage facility located away from a reactor site, and production or utilization facility licensing actions that involve significant hazards considerations. Under § 2.1213, the NRC staff's action would be subject to motions for stay.

Section 2.1202(b) also provides, consistent with § 2.310, that the NRC staff may decide whether to participate as a party to most proceedings conducted under Subpart L but would be required to be a party in enforcement proceedings, in a proceeding where the NRC staff has denied (or proposes to deny) an application, and in a proceeding where the presiding officer determines that the resolution of any issue would be aided materially by the NRC staff's participation as a party. At the commencement of a proceeding, if the NRC staff decides to participate as a party, § 2.1202(b)(2) requires the NRC staff to notify the presiding officer and parties of its intent to participate as a party and the contentions on which it wishes to participate as a party within 15 days of the order granting requests for hearing/petitions to intervene and admitting contentions. If the NRC staff desires to be a party thereafter, the NRC staff shall notify the presiding officer and the parties, identify the contentions on which it wishes to participate as a party, and make the disclosures required by § 2.336(b)(3) through (5) unless accompanied by an affidavit explaining why the disclosures cannot be provided to the parties with the notice. Although the NRC staff should have continuing flexibility to enter a hearing as a party, it should not be permitted to make a delayed decision in order to avoid its disclosure obligations under § 2.336(b). In addition, 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.

Section 2.1203—Hearing File and Prohibition on Other Discovery

Section 2.1203 requires the NRC staff to prepare and provide a hearing file and to keep the hearing file up-to-date by placing relevant documents such as the SER into the file as they become available. However, the Staff's obligation to place documents into the hearing file, by itself, has no significance with respect to the hearing schedule, and the unavailability of a staff-prepared document which is unnecessary for resolution of a contested matter must not affect the schedule for resolution.

Although the NRC has the capability to receive electronic files and make them available at the NRC's Web site, there is currently no requirement to submit documents in electronic form. Furthermore, the bulk of some electronic files, e.g., files of nuclear power plant license applications, may be impractical to be available for electronic access and download, given current technologies, and may be distributed using media such as CD-ROM and DVD. Hence, the Commission expects that hearing files in the foreseeable future will consist of paper copies, electronic files, or a combination of both.

Discovery against the NRC staff is prohibited in Subpart L proceedings by § 2.1203(d), except as permitted by Subpart C.

Section 2.1204—Motions and Requests

Section 2.1204(a) makes clear that the provisions in Subpart C on motions, requests, and responses are to be applied in informal proceedings under Subpart L. Section 2.1204(b) allows the parties to request that the presiding officer permit cross-examination by the parties on particular contentions or issues. The presiding officer may allow the parties to cross-examine if he/she finds that cross-examination is necessary for the development of an adequate record for decision. However, the Commission expects that the use of cross-examination will be rare.

Section 2.1205—Summary Disposition

Section 2.1205 provides a simplified procedure for summary disposition in informal proceedings. The standards to be applied in ruling on such motions are those set out in Subpart G.

Section 2.1206—Informal Hearings

Section 2.1206 specifies that informal hearings under the new Subpart L will be oral hearings unless all the parties agree to a hearing consisting of written submissions (this is a significant change from the existing Subpart L which generally involves hearings consisting of written submissions). No motion to hold a hearing consisting of written submissions may be entertained absent unanimous consent of the parties.

Section 2.1207—Process and Schedule for Submissions and Presentations in an Oral Hearing

Section 2.1207 specifies the process and schedule for submissions and presentations in oral hearings under the revised Subpart L. This section addresses the sequence and timing for the submission of direct testimony, rebuttal testimony, statements of position, suggested questions for the presiding officer to ask witnesses, and post-hearing proposed findings of fact and conclusions of law. The section also contains provisions on the actual conduct of the hearing, including the stipulation that only the presiding officer may question witnesses.

Section 2.1208—Process and Schedule for a Hearing Consisting of Written Presentations

Section 2.1208 specifies the process for submissions in hearings consisting of written presentations. This section Start Printed Page 2229addresses the sequence and timing for the submission of written statements of position, written direct testimony, written rebuttal testimony, proposed questions on the written testimony and written concluding statements of position on the contentions. Paragraph (a)(3) was revised to clarify that proposed questions may be submitted on written responses and rebuttal testimony filed under paragraph (a)(2), and that the presiding officer has the discretion whether these questions are to be posed to the sponsors of the responses and rebuttal testimony.

Section 2.1209—Findings of Fact and Conclusions of Law

Section 2.1209 requires parties to file proposed findings of fact and conclusions of law within thirty (30) days of the close of the hearing, unless the presiding officer specifies a different time.

Section 2.1210, 2.1211—Initial Decision and Its Effect, Immediate Effectiveness of Initial Decision Directing Issuance or Amendment of Licenses Under Part 61 of This Chapter

Under new § 2.1210, an initial decision resolving all issues before the presiding officer is effective upon issuance unless stayed or otherwise provided by the regulations in part 2. Under § 2.1210(a), the Commission, at its discretion, will determine whether initial decisions which are inconsistent with any staff action taken under § 2.1202(a) warrant Commission review. Once an initial decision becomes final, § 2.1210(e) provides that the Secretary transmits the decision to the NRC staff for action in accordance with the decision. Section 2.1211 restates former § 2.765, which specifies that initial decisions directing the issuance of a license or license amendment under Part 61 relating to land disposal of radioactive waste will become effective only upon the order of the Commission.

Section 2.1212—Petitions for Commission Review of Initial Decision

Section 2.1212 requires that petitions for review of an initial decision must be filed in accordance with the generally applicable review provisions of § 2.341. The second sentence of this section, which requires a party to file a petition for Commission review before seeking judicial review of an agency action, was modified to conform with the parallel provision in the second sentence of § 2.341(b).

Section 2.1213—Applications for a Stay

Section 2.1213 specifies the procedures for applications to stay the effectiveness of the NRC staff's actions on a licensing matter involved in a hearing under Subpart L. Applications for a stay of an initial decision issued under Subpart L must be filed under the stay provisions of § 2.342 in Subpart C.

11. Subpart M—Sections 2.1300-2.1331

Subpart M continues to be the Commission's specialized hearing track applicable to proceedings for the direct or indirect transfer of licenses for which prior NRC approval is required under governing statutes, the Commission's regulations, or an existing license condition. Subpart M is to be used in conjunction with the provisions of Subpart C listed in § 2.1304.

Section 2.1308 has been amended to remove provisions which are now covered under the generally-applicable provisions in Subpart C, but retains the language indicating that Subpart M hearings will ordinally be oral hearings unless the parties unanimously agree to a hearing consisting of written submissions and file a joint motion requesting a written hearing within 15 days of the notice or order granting a hearing.

Section 2.1315 states that a license amendment for an ISFSI that is intended to conform the license to reflect a license transfer, involves “no genuine issue as to whether the health and safety of the public will be significantly affected.”

Sections 2.1321, 2.1322 and 2.1331 have been amended to remove references to deleted sections and to reflect the fact that requests for hearing/petitions to intervene for proceedings under Subpart M will be considered under the generally applicable requirements of § 2.309 in Subpart C.

Section 2.1323(d) provides that either the EDO or the EDO's delegee shall designate the NRC staff witnesses who will testify in a Subpart M hearing.

12. Subpart N—Sections 2.1400-2.1407

Subpart N is a new, specialized hearing track that contains the Commission's “fast track” hearing procedures. This subpart provides for the expeditious resolution of issues in cases where the contentions are few and not particularly complex and might be efficiently addressed in a short hearing using simple procedures and oral presentations. However, this subpart may be used for more complex issues if all parties agree. The Commission expects that the rendering of an initial decision should be accomplished within about two to three months of the issuance of the order granting a hearing if the issues are straightforward and deadlines are met. Subpart N is to be used in conjunction with the rules of general applicability contained in Subpart C. The following is a section-by-section analysis of Subpart N.

Section 2.1400—Purpose and Scope

This section indicates that the purpose of Subpart N is to provide for simplified procedures for conducting hearings, and identifies the proceedings where Subpart N procedures may be used.

Section 2.1401—Definitions

This section indicates that Subpart N has no unique definitions, and relies on the definitions in existing § 2.4.

Section 2.1402—General Procedures and Limitations; Requests for Other Procedures

Section 2.1402 specifies the general procedures and procedural limitations for the “fast track” hearing process of Subpart N. It limits the use of written motions and pleadings, prohibits discovery beyond that provided by the general disclosure provisions of Subpart C, and prohibits summary disposition. Section 2.1402 allows the presiding officer or the Commission to order that the hearing be conducted using other hearing procedures if it becomes apparent before the hearing is held that the use of the “fast track” procedures of this subpart are not appropriate in the particular case. It also permits any party to orally request that the presiding officer allow parties to cross-examine on particular contentions or issues. The presiding officer may grant the oral motion only if the presiding officer finds that cross-examination is necessary for the development of an adequate record for decision. The Commission expects, however, that cross-examination will rarely be used in Subpart N proceedings.

Section 2.1403—Authority and Role of the NRC Staff

Section 2.1403 describes the authority and role of the NRC staff in the “fast track” hearings under Subpart N. Regardless of its status as a party and similar to the situation under Subparts L and M, the NRC staff is expected to conduct its own reviews and take action on the application or matter that is the subject of the hearing, despite the pendency of the hearing. Section 2.1403(a) requires the NRC staff to provide notice to the presiding officer of the NRC's action on the application or the underlying regulatory matter for which a hearing was provided, as applicable. The notice must include the staff's explanation why it may take action on the application or the Start Printed Page 2230underlying regulatory matter despite the pendency of the contested matter before the presiding officer. In licensing proceedings, that explanation should ordinarily address why the public health and safety is protected and common defense and security is promoted despite the pendency of the contested matter. In no event, however, should the staff's explanation set forth a position on, or otherwise assume an advocacy position with respect to the contested matter in the adjudication before the presiding officer. The NRC staff's action on the application or matter is effective upon issuance except in proceedings involving an application to construct and/or operate a production or utilization facility, an application for the construction and operation of an ISFSI or an MRS at a site other than a reactor site, and proposed reactor licensing actions that involve significant hazards considerations.

Similar to the situation in informal hearings under Subpart L, the NRC staff is not required to be a party in most “fast track” proceedings, but would be required to be a party in any Subpart N proceeding involving an application denied by the staff, an enforcement action proposed by the staff, or a proceeding where the presiding officer determines that resolution of any issue would be aided materially by the staff's participation as a party. In all other instances, the NRC staff may choose to be a party, in which case it must notify the presiding officer and the parties that it desires party status.

Section 2.1404—Prehearing Conference

Section 2.1404 requires the presiding officer to conduct a prehearing conference within forty (40) days of the issuance of the order granting requests for hearing/petitions to intervene. At the prehearing conference, each party identifies its witnesses, provides a summary of the proposed testimony of each witness, reports on its efforts at settlement, and provides questions that the party wishes the presiding officer to ask at the hearing. The presiding officer memorializes the rulings and results of the prehearing conference in a written order.

Section 2.1405—Hearing

Section 2.1405 sets forth the requirements applicable to “fast track” hearings. The hearing commences no later than twenty (20) days after the prehearing conference required by § 2.1404. The hearing is open to the public and transcribed. At the hearing, the presiding officer receives oral testimony and questions the witnesses. The parties may not cross-examine the witnesses, but they have had the opportunity at the prehearing conference to provide questions for the presiding officer to use at hearing. However, as mentioned above a presiding officer may permit cross-examination under § 2.1402(b) if the presiding officer finds that cross-examination by the parties is necessary for the development of an adequate record for decision.

Each party may present oral argument and a final statement of position at the close of the hearing. Written post-hearing briefs and proposed findings are prohibited unless requested by the presiding officer.

Section 2.1406—Initial Decision—Issuance and Effectiveness

Section 2.1406 encourages the presiding officer to render a decision from the bench, to be reduced to writing within twenty (20) days of the close of the hearing. Where a decision is not rendered from the bench, it must be issued in writing within thirty (30) days of the close of the hearing. These periods may be extended only with the approval of the Chief Administrative Judge or the Commission. The initial decision is effective twenty (20) days after issuance of the written decision unless a party appeals or the Commission takes review on its own motion. The initial decision is stayed if a party appeals or the Commission reviews the initial decision on its own.

Section 2.1407—Appeal and Commission Review of Initial Decision

Under § 2.1407, a party may appeal as-of-right by filing a written appeal with the Commission within fifteen (15) days after the service of the initial decision. The written appeal is limited to twenty (20) pages and must address the matters and standards for review listed in § 2.1407. Other parties may file written answers within fifteen (15) days after service of the appeal, and are limited to twenty (20) pages. If there is no appeal, or after the Commission has acted upon the appeal and the decision becomes final agency action, the Secretary shall transmit the decision to the NRC staff for action in accordance with the decision.

13. Subpart O—Sections 2.1500—2.1509

Subpart O is a specialized hearing track that contains the Commission's procedures for conducting “legislative-style” hearings. The purpose of this new subpart is to provide for simplified, non-adversarial hearing procedures to assist the Commission in obtaining information and varying policy perspectives on specific subjects identified by the Commission. Subpart O may be used, in the Commission's sole discretion, in design certification rulemakings under Part 52 of this chapter, and in situations where the Commission has determined, under § 2.335(d), that a legislative hearing would assist it in resolving a petition filed under § 2.335(b).

Section 2.1500—Purpose and Scope

This section specifies the matters for which the Commission may decide, as a matter of discretion, to hold a legislative hearing under this subpart.

Section 2.1501—Definitions

This section sets forth two definitions, demonstrative information, and documentary information. These definitions are used in § 2.1506 to identify the information that must be submitted in written statements to be filed before the oral hearing phase of the legislative hearing.

Section 2.1502—Commission Decision To Hold Legislative Hearing

This section addresses the procedure and timing of a Commission decision to conduct a legislative hearing and the noticing requirements. In a design certification rulemaking, the Commission could determine to hold a legislative hearing either prior to issuing the notice of proposed rulemaking or as the result of comments received on the proposed rule. If the Commission decides, before publishing a notice of proposed rulemaking in the Federal Register, that it wishes to conduct a legislative hearing, the notice of proposed rulemaking must identify the issues to be addressed in the legislative hearing, the parties that will be invited to participate in the legislative hearing, whether any other parties may request to participate and the criteria for granting of such requests, and any special procedures to be used. In a proceeding where a party submits a petition under § 2.335, all parties to the proceeding will be invited to participate, as will interested States, governmental bodies, and affected Federally-recognized Indian Tribes who are participating in the underlying proceeding under § 2.315(c).

Section 2.1503—Authority of Presiding Officer

This section essentially provides the presiding officer with the authority to control the conduct of the legislative hearing to ensure that the hearing is conducted in a timely and fair manner.Start Printed Page 2231

Section 2.1504—Participation in Legislative Hearing

This section addresses the content and timing of requests to participate in the legislative hearing.

Section 2.1505—Role of the NRC Staff

Because of the nature of the legislative hearing, the NRC staff is not required to participate in the legislative hearing, but may be requested to answer presiding officer questions or provide other assistance as the presiding officer may request. The separation of functions limitations in § 2.348 do not apply to communications between the Commission or presiding officer and the NRC staff on the matters identified under § 2.1502(c)(1) as the subject of the legislative hearing (see discussion on § 2.1509).

Section 2.1506—Written Statements and Submission of Information

Ordinarily, all participants in a legislative hearing must submit written statements and materials they wish to be considered in a legislative hearing. These written materials must be filed no later than ten (10) days prior to the oral hearing.

Section 2.1507—Oral Hearing

This section addresses the conduct of the oral phase of the legislative hearing. The purpose of the hearing is to allow various stakeholders to express their opinions, analyses, and supporting facts, with the object of informing the Commission with respect to the policy questions relevant to the subject matter of the legislative hearing. Accordingly, the procedures for the legislative hearing are intended to provide for expeditious presentation of such information to the Commission in a format that minimizes formalism. For example, there is no cross-examination; instead the presiding officer is free to ask each witness those questions the presiding officer believes are warranted, based upon the written submissions and information submitted under § 2.1506 as supplemented by any oral presentations in the oral phase of the hearing.

Section 2.1508—Recommendation of Presiding Officer

This section sets forth the responsibilities of the presiding officer following the conclusion of the oral phase of the legislative hearing to certify a recommendation to the Commission. The information that is to be included in the certification is intended to assist the Commission in resolving the subject matter of the legislative hearing.

Section 2.1509—Ex Parte Communications and Separation of Functions

This section provides that the ex parte limitations on communications between the Commission or presiding officer and parties in § 2.347 also applies in a legislative hearing. The separation of functions limitations in § 2.348 applies only where the legislative hearing is held on a matter certified to the Commission under § 2.335, and then only with respect to the underlying contested matter, and not the issue identified under § 2.1502(c)(1).

III. Availability of Documents

The NRC is making the documents identified below available to interested persons through one or more of the following methods as indicated.

Public Document Room (PDR). The NRC Public Document Room is located at 11555 Rockville Pike, Rockville, Maryland.

Rulemaking Web site (Web). The NRC's interactive rulemaking Web site is located at http://ruleforum.llnl.gov. These documents may be viewed and downloaded electronically via this Web site.

NRC's Public Electronic Reading Room (PERR). The NRC's public electronic reading room is located at http://www.nrc.gov/​NRC/​ADAMS/​index.html.

The NRC staff contact (NRC Staff). None.

DocumentPDRWebPERRNRC staff
Comments receivedXXX
Responses to Comments not Addressed in Statement of Considerations for Changes to the Adjudicatory Process: Final RuleXML033510327
SECY-01-0137XML012070084
SRM (1-8-2002) on SECY-01-0137XML020080358
SECY-02-0072ML021150595
SECY-02-0072AML022600516
SRM (11-13-2003)ML033180077

IV. 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 otherwise impractical. This final rule changes the NRC's procedures for the conduct of hearings in 10 CFR part 2. This final rule does not constitute the establishment of a government-unique standard as defined in Office of Management and Budget (OMB) Circular A-119 (1998).

V. Environmental Impact: Categorical Exclusion

The final rule amends the adjudicatory procedures in 10 CFR part 2 and makes conforming changes to other parts of title 10, and, therefore qualifies as an action eligible for the categorical exclusion from environmental review under 10 CFR 51.22(c)(1). Therefore, neither an environmental impact statement or environmental assessment has been prepared for this final rulemaking.

VI. Paperwork Reduction Act Statement

This final rule does not contain 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.).

VII. Regulatory Analysis

The final rule emanates from a longstanding concern that the Commission's hearing process, using the full panoply of formal adjudicatory procedures under former Subpart G, is not as efficient or effective as it could be, thereby resulting in protracted, costly proceedings. To avoid such protracted proceedings in the future, the Commission has developed revised rules of procedure in 10 CFR part 2 that provide for a range of hearing procedures tailored to the type of proceeding and the nature of issues to be resolved in the proceeding. The Start Printed Page 2232revised procedures enhance public participation by reducing unnecessary procedural burdens, produce more timely decisions, and reduce the resources that participants expend.

The final rule requires most NRC proceedings to be conducted using more informal hearing procedures. The trend in administrative law is to move away from formal, trial-type procedures. Instead, informal hearings and use of Alternative Dispute Resolution methods, such as settlement conferences, are often viewed as better, quicker, and less-costly means to resolve disputes.

The Commission will continue to use Subpart G procedures in enforcement proceedings (unless all parties agree to use Subpart L or N procedures), in proceedings on the initial application for construction authorization for a high-level radioactive waste repository and initial application for a license to receive and possess high-level radioactive waste at a geologic repository operations area, as well as any proceeding to construct and operate a uranium enrichment facility under Section 193 of the Atomic Energy Act of 1954, as amended, (AEA). The Commission also will use Subpart G procedures in nuclear power reactor licensing proceedings where resolution of a contention or contested matter involves resolution of: (1) Issues of material fact relating to the occurrence of a past event, where the credibility of an eyewitness may reasonably be expected to be at issue, and/or (2) issues of motive or intent of the party or eyewitness material to the resolution of the contested matter.

The final rule should facilitate public participation in NRC proceedings by reducing some of the burdens. For example, the costs of discovery in formal adjudications should be reduced by the provision requiring parties to disclose voluntarily relevant documents at the outset of the proceeding. This should result in a diminished need for parties to file interrogatories and take depositions. By adding this form of discovery to all proceedings (formal and informal), the parties will have information that should assist in the resolution of issues and litigation of the case. Moreover, by requiring that contentions be filed in informal adjudications and providing for oral hearings (unless waived by all of the parties), informal proceedings should be more focused. This should permit parties to better focus the scope of their written and oral presentations on the specific disputes that must be resolved. By permitting the parties in informal hearings to propose questions that the presiding officer could choose to pose to witnesses, a more focused and complete record can be developed.

For less-complex disputes, a fast track option (Subpart N) is adopted. Under this option, cases can be resolved far more quickly with substantially reduced burdens to the participants as compared with the Subpart L hearing process.

Finally, the Commission is adopting “legislative-style” hearing procedures that may be used in the Commission's discretion in two relatively narrow situations to help develop a record on “legislative facts” that would assist the Commission decide questions of policy and discretion. The two situations are design certification rulemakings, and determination of a petition certified to the Commission under § 2.335 seeking consideration of a Commission rule or regulation.

The Commission does not believe the option of preserving the status quo by not proposing any rule changes is a preferred option. Experience has indicated that the agency hearing process can be improved through appropriate rule changes. The Commission believes that the final rule will improve the effectiveness of NRC hearings and at the same time reduce the overall burdens for all participants in NRC hearings: Members of the public, interested State and local governmental bodies, affected, Federally-recognized Indian Tribes, NRC staff, applicants and licensees.

This constitutes the regulatory analysis for the final rule.

VIII. Regulatory Flexibility Certification

As required by the Regulatory Flexibility Act of 1980, 5 U.S.C. 605(b), the Commission certifies that this rule will not have a significant economic impact on a substantial number of small entities. This rule applies in the context of Commission 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 Regulatory Enforcement Fairness Act of 1996, 15 U.S.C. 632, within the small business standards set forth in 13 CFR part 121, or within the size standards adopted 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.

IX. Backfit Analysis

The NRC has determined that the backfit rule does not apply to this final rule because these amendments modify the procedures to be used in NRC adjudicatory proceedings, and do not involve any provisions that would impose backfits as defined in 10 CFR Chapter I. Therefore, a backfit analysis has not been prepared for this final rule.

Start List of Subjects

List of Subjects

End List of Subjects Start Amendment Part

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

End Amendment Part Start Part

PART 1—STATEMENT OF ORGANIZATION AND GENERAL INFORMATION

End Part Start Amendment Part

1. The authority citation for part 1 continues to read as follows:

End Amendment Part Start Authority

Authority: Secs. 23, 161, 68 Stat. 925, 948, as amended (42 U.S.C. 2033, 2201); sec. 29, Pub. L. 85-256, 71 Stat. 579, Pub. L. 95-209, 91 Stat. 1483 (42 U.S.C. 2039); sec. 191, Pub. L. 87-615, 76 Stat. 409 (42 U.S.C. 2241); secs. 201, 203, 204, 205, 209, 88 Stat. 1242, 1244, 1245, 1246, 1248, as amended (42 U.S.C. 5841, 5843, 5844, 5845, 5849); 5 U.S.C. 552, 553; Reorganization Plan No. 1 of 1980, 45 FR 40561, June 16, 1980; sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note).

End Authority Start Amendment Part

2. In § 1.25, paragraph (g) is revised to read as follows:

End Amendment Part
Office of the Secretary of the Commission.
* * * * *

(g) Receives, processes, and controls motions and pleadings filed with the Commission; issues and serves adjudicatory orders on behalf of the Commission; receives and distributes public comments in rulemaking proceedings; issues proposed and final rules on behalf of the Commission; maintains the official adjudicatory and rulemaking dockets of the Commission; and exercises responsibilities delegated to the Secretary in 10 CFR 2.303 and 2.346;

* * * * *
Start Part

PART 2—RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS AND ISSUANCE OF ORDERS

End Part Start Amendment Part

3. The authority citation for part 2 is revised to read as follows:

End Amendment Part Start Authority

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).

End Authority

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(0); 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). Section 2.102, 2.103, 2.104, 2.105, 2.321 also issued under secs. 102, 163, 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 U.S.C. 2239). Sections 2.600-2.606 also issued under sec. 102, Pub. L. 91-190, 83 Stat. 853, as amended (42 U.S.C. 4332). Section 2.700a also issued under 5 U.S.C. 554. Sections 2.343, 2.346, 2.754, 2.712, also issued under 5 U.S.C. 557. Section 2.764 also issued under secs. 135, 141, Pub. L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). Section 2.790 also issued under sec. 103, 68 Stat. 936, as amended (42 U.S.C. 2133) and 5 U.S.C. 552. 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. 91-550, 84 Stat. 1473 (42 U.S.C. 2135).

Start Amendment Part

4. Section 2.2 is revised to read as follows:

End Amendment Part
Subparts.

Each subpart other than subpart C of this part sets forth special rules applicable to the type of proceeding described in the first section of that subpart. Subpart C sets forth general rules applicable to all types of proceedings except rulemaking, and should be read in conjunction with the subpart governing a particular proceeding. Subpart I of this part sets forth special procedures to be followed in proceedings in order to safeguard and prevent disclosure of Restricted Data.

Start Amendment Part

5. Section 2.3 is revised to read as follows:

End Amendment Part
Resolution of conflict.

(a) In any conflict between a general rule in subpart C of this part and a special rule in another subpart or other part of this chapter applicable to a particular type of proceeding, the special rule governs.

(b) Unless otherwise specifically referenced, the procedures in this part do not apply to hearings in 10 CFR parts 4, 9, 10, 11, 12, 13, 15, 16, and subparts H and I of 10 CFR part 110.

Start Amendment Part

6. In § 2.4, a new definition of presiding officer is added, and the definitions of Commission adjudicatory employee, and NRC personnel are revised to read as follows:

End Amendment Part
Definitions.
* * * * *

Commission adjudicatory employee means—

(1) The Commissioners and members of their personal staffs;Start Printed Page 2234

(2) The employees of the Office of Commission Appellate Adjudication;

(3) The members of the Atomic Safety and Licensing Board Panel and staff assistants to the Panel;

(4) A presiding officer appointed under § 2.313, and staff assistants to a presiding officer;

(5) Special assistants (as defined in § 2.322);

(6) The General Counsel, the Solicitor, the Associate General Counsel for Licensing and Regulation, and employees of the Office of the General Counsel under the supervision of the Solicitor;

(7) The Secretary and employees of the Office of the Secretary; and

(8) Any other Commission officer or employee who is appointed by the Commission, the Secretary, or the General Counsel to participate or advise in the Commission's consideration of an initial or final decision in a proceeding. Any other Commission officer or employee who, as permitted by § 2.348, participates or advises in the Commission's consideration of an initial or final decision in a proceeding must be appointed as a Commission adjudicatory employee under this paragraph and the parties to the proceeding must be given written notice of the appointment.

* * * * *

NRC personnel means:

(1) NRC employees;

(2) For the purpose of §§ 2.336, 2.702, 2.709 and 2.1018 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

(3) Members of advisory boards, committees, and panels of the NRC; members of boards designated by the Commission to preside at adjudicatory proceedings; and officers or employees of Government agencies, including military personnel, assigned to duty at the NRC.

* * * * *

Presiding officer means the Commission, an administrative law judge, an administrative judge, an Atomic Safety and Licensing Board, or other person designated in accordance with the provisions of this part, presiding over the conduct of a hearing conducted under the provisions of this part.

* * * * *
Start Amendment Part

7. Section 2.100 is revised to read as follows:

End Amendment Part
Scope of subpart.

This subpart prescribes the procedures for issuance of a license, amendment of a license at the request of the licensee, and transfer and renewal of a license.

Start Amendment Part

8. In § 2.101, paragraphs (a)(3)(ii), (b), (f)(1)and (g)(2) are revised to read as follows:

End Amendment Part
Filing of application.

(a) * * *

(3) * * *

(ii) Serve a copy on the chief executive of the municipality in which the facility is to be located or, if the facility is not to be located 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 following information: 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 email 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 § 2.390(d). The applicant shall submit to the Director of Nuclear Reactor Regulation 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; and

* * * * *

(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, who must comply with paragraph (g) 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 following information: 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 email 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 § 2.390(d). The applicant shall submit to the Director of Nuclear Material Safety and Safeguards 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.

* * * * *

(f)(1) Each application for construction authorization for a HLW repository at a geologic repository operations area pursuant to parts 60 or 63 of this chapter, and each application for a license to receive and possess high-level radioactive waste at a geologic repository operations area pursuant to parts 60 or 63 of this chapter, and any environmental impact statement required in connection therewith pursuant to subpart A of part 51 of this chapter shall be processed in accordance with the provisions of this paragraph.

* * * * *

(g) * * *

(2)(i) With respect to any tendered document that is acceptable for docketing, the applicant will be requested to: Start Printed Page 2235

(A) Submit to the Director of Nuclear Material Safety and Safeguards such additional copies as required by the regulations in part 61 and subpart A of part 51 of this chapter;

(B) Serve a copy on the chief executive of the municipality in which the waste is to be disposed of or, if the waste is not to be disposed of within a municipality, serve a copy on the chief executive of the county in which the waste is to be disposed of;

(C) Make direct distribution of additional copies to Federal, State, Indian Tribe, and local officials in accordance with the requirements of this chapter and written instructions from the Director of Nuclear Material Safety and Safeguards; and

(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 (g)(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 such cases, the recipients will be responsible for inserting the revised pages. In complying with the requirements of paragraph (g) of this section the applicant may not make public distribution of those parts of the application subject to § 2.390(d).

* * * * *
Start Amendment Part

9. In § 2.102, paragraph (d)(3) is revised to read as follows:

End Amendment Part
Administrative review of application.
* * * * *

(d) * * *

(3) The Director of Nuclear Reactor Regulation or Director of Nuclear Material Safety and Safeguards, as appropriate, will cause the Attorney General's advice received pursuant to paragraph (d)(1) of this section to be published in the Federal Register promptly upon receipt, and will make such advice a part of the record in any proceeding on antitrust matters conducted in accordance with subsection 105c(5) and section 189a of the Act. The Director of Nuclear Reactor Regulation or Director of Nuclear Material Safety and Safeguards, as appropriate, will also cause to be published in the Federal Register a notice that the Attorney General has not rendered any such advice. Any notice published in the Federal Register under this paragraph will also include a notice of hearing, if appropriate, or will state that any person whose interest may be affected by the proceeding may, under § 2.309, file a petition for leave to intervene and request a hearing on the antitrust aspects of the application. The notice will state that petitions for leave to intervene and requests for hearing shall be filed within 30 days after publication of the notice.

Start Amendment Part

10. In § 2.103, the section heading and paragraph (a) are revised to read as follows:

End Amendment Part
Action on applications for byproduct, source, special nuclear material, facility and operator licenses.

(a) If the Director of Nuclear Reactor Regulation or the Director of Nuclear Material Safety and Safeguards, as appropriate, finds that an application for a byproduct, source, special nuclear material, facility, or operator license complies with the requirements of the Act, the Energy Reorganization Act, and this chapter, he will issue a license. If the license is for a facility, or for receipt of waste radioactive material from other persons for the purpose of commercial disposal by the waste disposal licensee, or for a construction authorization for a HLW repository at a geologic repository operations area under to parts 60 or 63 of this chapter, or if it is to receive and possess high-level radioactive waste at a geologic repository operations area under parts 60 or 63 of this chapter, the Director of Nuclear Reactor Regulation or the Director of Nuclear Material Safety and Safeguards, as appropriate, will inform the State, Tribal and local officials specified in § 2.104(e) of the issuance of the license. For notice of issuance requirements for licenses issued under part 61 of this chapter, see § 2.106(d).

* * * * *
Start Amendment Part

11. In § 2.104, paragraph (e) is revised to read as follows:

End Amendment Part
Notice of hearing.
* * * * *

(e) The Secretary will give timely notice of the hearing to all parties and to other persons, if any, entitled by law to notice. The Secretary will transmit a notice of hearing on an application for a license for a production or utilization facility, for a license for receipt of waste radioactive material from other persons for the purpose of commercial disposal by the waste disposal licensee, for a license under part 61 of this chapter, for a construction authorization for a HLW repository at a geologic repository operations area pursuant to parts 60 or 63 of this chapter, for a license to receive and possess high-level radioactive waste at a geologic repository operations area pursuant to parts 60 or 63 of this chapter, and for a license under part 72 of this chapter to acquire, receive or possess spent fuel for the purpose of storage in an independent spent fuel storage installation (ISFSI) to the governor or other appropriate official of the State and to the chief executive of the municipality in which the facility is to be located or the activity is to be conducted or, if the facility is not to be located or the activity conducted within a municipality, to the chief executive of the county (or to the Tribal organization, if it is to be so located or conducted within an Indian reservation). The Secretary will transmit a notice of hearing on an application for a license under part 72 of this chapter to acquire, receive or possess spent fuel, high-level radioactive waste or radioactive material associated with high-level radioactive waste for the purpose of storage in a monitored retrievable storage installation (MRS) to the same persons who received the notice of docketing under § 72.16(e) of this chapter.

Start Amendment Part

12. In § 2.105, paragraphs (a)(5) and (a)(6) are revised to read as follows:

End Amendment Part
Notice of proposed action.

(a) * * *

(5) A license to receive and possess high-level radioactive waste at a geologic repository operations area pursuant to parts 60 or 63 of this chapter, or an amendment thereto, when the license or amendment would authorize actions which may significantly affect the health and safety of the public;

(6) An amendment to a construction authorization for a high-level radioactive waste at a geologic repository operations area pursuant to parts 60 or 63 of this chapter, when such an amendment would authorize actions which may significantly affect the health and safety of the public;

* * * * *
Start Amendment Part

13. In § 2.106, paragraph (c) is revised to read as follows:

End Amendment Part
Notice of issuance.
* * * * *

(c) The Director of Nuclear Material Safety and Safeguards will also cause to be published in the Federal Register notice of, and will inform the State, local, and Tribal officials specified in § 2.104(e) of any action with respect to an application for construction authorization for a high-level radioactive waste repository at a Start Printed Page 2236geologic repository operations area, a license to receive and possess high-level radioactive waste at a geologic repository operations area pursuant to parts 60 or 63 of this chapter, or an amendment to such license for which a notice of proposed action has been previously published.

* * * * *
Start Amendment Part

14. In § 2.107, paragraph (a) is revised to read as follows:

End Amendment Part
Withdrawal of application.

(a) The Commission may permit an applicant to withdraw an application prior to the issuance of a notice of hearing on such terms and conditions as it may prescribe, or may, on receiving a request for withdrawal of an application, deny the application or dismiss it with prejudice. If the application is withdrawn prior to issuance of a notice of hearing, the Commission shall dismiss the proceeding. Withdrawal of an application after the issuance of a notice of hearing shall be on such terms as the presiding officer may prescribe.

* * * * *
Start Amendment Part

15. In § 2.108, paragraph (c) is revised to read as follows:

End Amendment Part
Denial of application for failure to supply information.
* * * * *

(c) When both a notice of receipt of the application and a notice of hearing have been published, the presiding officer, upon a motion made by the staff under § 2.323, will rule whether an application should be denied by the Director of Nuclear Reactor Regulation or Director of Nuclear Material Safety and Safeguards, as appropriate, under paragraph (a) of this section.

Start Amendment Part

16. In § 2.110, paragraph (a)(1) is revised to read as follows:

End Amendment Part
Filing and administrative action on submittals for design review or early review of site suitability issues.

(a)(1) A submittal pursuant to appendix O of part 52 of this chapter shall be subject to §§ 2.101(a) and 2.390 to the same extent as if it were an application for a permit or license.

* * * * *
Start Amendment Part

17. In § 2.206, a new paragraph (c)(3) is added to read as follows:

End Amendment Part
Requests for action under this subpart.
* * * * *

(c) * * *

(3) The Secretary is authorized to extend the time for Commission review on its own motion of a Director's denial under paragraph (c) of this section.

Start Amendment Part

18. A new subpart C is added to part 2 to read as follows:

End Amendment Part

Subpart C—Rules of General Applicability: Hearing Requests, Petitions to Intervene, Availability of Documents, Selection of Specific Hearing Procedures, Presiding Officer Powers, and General Hearing Management for NRC Adjudicatory Hearings

2.300
Scope of subpart C.
2.301
Exceptions.
2.302
Filing of documents.
2.303
Docket.
2.304
Formal requirements for documents; acceptance for filing.
2.305
Service of papers, methods, proof.
2.306
Computation of time.
2.307
Extension and reduction of time limits.
2.308
Treatment of requests for hearing or petitions for leave to intervene by the Secretary.
2.309
Hearing requests, petitions to intervene, requirements for standing, and contentions.
2.310
Selection of hearing procedures.
2.311
Interlocutory review of rulings on requests for hearings/petitions to intervene and selection of hearing procedures.
2.312
Notice of hearing.
2.313
Designation of presiding officer, disqualification, unavailability, and substitution.
2.314
Appearance and practice before the Commission in adjudicatory proceedings.
2.315
Participation by a person not a party.
2.316
Consolidation of parties.
2.317
Separate hearings; consolidation of proceedings.
2.318
Commencement and termination of jurisdiction of presiding officer.
2.319
Power of the presiding officer.
2.320
Default.
2.321
Atomic Safety and Licensing Boards.
2.322
Special assistants to the presiding officer.
2.323
Motions.
2.324
Order of procedure.
2.325
Burden of proof.
2.326
Motions to reopen.
2.327
Official recording; transcript.
2.328
Hearings to be public.
2.329
Prehearing conference.
2.330
Stipulations.
2.331
Oral argument before the presiding officer.
2.332
General case scheduling and management.
2.333
Authority of the presiding officer to regulate procedure in a hearing.
2.334
Schedules for proceedings.
2.335
Consideration of Commission rules and regulations in adjudicatory proceedings.
2.336
General discovery.
2.337
Evidence at a hearing.
2.338
Settlement of issues; alternative dispute resolution.
2.339
Expedited decisionmaking procedure.
2.340
Initial decision in contested proceedings on applications for facility operating licenses; immediate effectiveness of initial decision directing issuance or amendment of construction permit or operating license.
2.341
Review of decisions and actions of a presiding officer.
2.342
Stays of decisions.
2.343
Oral argument.
2.344
Final decision.
2.345
Petition for reconsideration.
2.346
Authority of the Secretary.
2.347
Ex parte communications.
2.348
Separation of functions.
2.390
Public inspections, exemptions, requests for withholding.

Subpart C—Rules of General Applicability: Hearing Requests, Petitions to Intervene, Availability of Documents, Selection of Specific Hearing Procedures, Presiding Officer Powers, and General Hearing Management for NRC Adjudicatory Hearings

Scope of subpart C.

The provisions of this subpart apply to all adjudications conducted under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, and 10 CFR Part 2, unless specifically stated otherwise in this subpart.

Exceptions.

Consistent with 5 U.S.C. 554(a)(4) of the Administrative Procedure Act, the Commission may provide alternative procedures in adjudications to the extent that the conduct of military or foreign affairs functions is involved.

Filing of documents.

(a) Documents must be filed with the Commission in adjudications subject to this part either by:

(1) First class mail addressed to: Office of the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemakings and Adjudications Staff;

(2) Courier, express mail, and expedited delivery services: Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852, Attention: Rulemakings and Adjudications Staff;

(3) E-mail addressed to the Office of the Secretary, U.S. Nuclear Regulatory Commission, HEARINGDOCKET@NRC.GOV;

(4) By facsimile transmission addressed to the Office of the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC, Attention: Rulemakings and Adjudications Staff, at (301) 415-1101; verification number is (301) 415-1966.

(b) All documents offered for filing must be accompanied by proof of Start Printed Page 2237service on all parties to the proceeding or their attorneys of record as required by law or by rule or order of the Commission. For purposes of service of documents, the staff of the Commission is considered a party.

(c) Filing by mail, electronic mail, or facsimile is considered complete as of the time of deposit in the mail or upon electronic mail or facsimile transmission.

Docket.

The Secretary shall maintain a docket for each proceeding conducted under this part, commencing with either the initial notice of hearing, notice of proposed action, order, request for hearing or petition for leave to intervene, as appropriate. The Secretary shall maintain all files and records of proceedings, including transcripts and video recordings of testimony, exhibits, and all papers, correspondence, decisions and orders filed or issued. All documents, records, and exhibits filed in any proceeding must be filed with the Secretary as described in §§ 2.302 and 2.304.

Formal requirements for documents; acceptance for filing.

(a) Each document filed in an adjudication subject to this part to which a docket number has been assigned must show the docket number and title of the proceeding.

(b) Each document must be bound on the left side and typewritten, printed, or otherwise reproduced in permanent form on good unglazed paper of standard letterhead size. Each page must begin not less than one inch from the top, with side and bottom margins of not less than one inch. Text must be double-spaced, except that quotations may be single-spaced and indented. The requirements of this paragraph do not apply to original documents or admissible copies offered as exhibits, or to specifically prepared exhibits.

(c) The original of each document must be signed in ink by the party or its authorized representative, or by an attorney having authority with respect to it. The document must state the capacity of the person signing, his or her address, and the date of signature. The signature of a person signing in a representative capacity is a representation that the document has been subscribed in the capacity specified with full authority that he or she has read it and knows the contents that to the best of his or her knowledge, information and belief the statements made in it are true, and that it is not interposed for delay. If a document is not signed, or is signed with intent to defeat the purpose of this section, it may be stricken.

(d) Except as otherwise required by this part or by order, a pleading or other document, other than correspondence, must be filed in an original and two conformed copies.

(e) The first document filed by any person in a proceeding must designate the name and address of a person on whom service may be made. This document must also designate the electronic mail address and facsimile number, if any, of the person on whom service may be made.

(f) A document filed by electronic mail or facsimile transmission need not comply with the formal requirements of paragraphs (b), (c), and (d) of this section if an original and two (2) copies otherwise complying with all of the requirements of this section are mailed within two (2) days thereafter to the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemakings and Adjudications Staff.

(g) Acceptance for filing. Any document that fails to conform to the requirements of this section may be refused acceptance for filing and may be returned with an indication of the reason for nonacceptance. Any document that is not accepted for filing will not be entered on the Commission's docket.

Service of papers, methods, proof.

(a) Service of papers by the Commission. Except for subpoenas, the Commission will serve all orders, decisions, notices, and other papers issued by it upon all parties.

(b) Who may be served. Any paper required to be served upon a party must be served upon that person or upon the representative designated by the party or by law to receive service of papers. When a party has appeared by attorney, service must be made upon the attorney of record.

(c) How service may be made. Service may be made by personal delivery or courier, by express mail or expedited delivery service, by first class, certified or registered mail, by e-mail or facsimile transmission, or as otherwise authorized by law. If service is made by e-mail or facsimile transmission, the original signed copy must be transmitted to the Secretary by personal delivery, courier, express mail or expedited delivery service, or first class, certified, or registered mail. In addition, if service is by e-mail, a paper copy must also be served by any other service method permitted under this paragraph. Where there are numerous parties to a proceeding, the Commission may make special provision regarding the service of papers. The presiding officer shall require service by the most expeditious means that is available to all parties in the proceeding, including express mail or expedited delivery service, and/or electronic or facsimile transmission, unless the presiding officer finds that this requirement would impose undue burden or expense on some or all of the parties.

(d) Service on the Secretary. (1) All pleadings must be served on the Secretary of the Commission in the same or equivalent manner, i.e., personal delivery or courier, express mail or expedited delivery service, facsimile or electronic transmission, that they are served upon the adjudicatory tribunals and the parties to the proceedings, so that the Secretary will receive the pleading at approximately the same time that it is received by the tribunal to which the pleading is directed.

(2) When pleadings are personally delivered to tribunals while they are conducting proceedings outside the Washington, DC area, service on the Secretary may be accomplished by courier, express mail or expedited delivery service, or by electronic or facsimile transmission.

(3) Service of pre-filed testimony and demonstrative evidence (e.g., maps and other physical exhibits) on the Secretary may be made by first class mail in all cases, unless the presiding officer directs otherwise.

(4) The addresses for the Secretary are:

(i) First class mail: Office of the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemakings and Adjudications Staff.

(ii) Courier, express mail, and expedited delivery services: Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852, Attention: Rulemakings and Adjudications Staff.

(iii) E-mail addressed to the Secretary, U.S. Nuclear Regulatory Commission, HEARINGDOCKET@NRC.GOV; and

(iv) Facsimile transmission addressed to the Office of the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC, Attention: Rulemakings and Adjudications Staff, at (301) 415-1101; verification number is (301) 415-1966.

(e) When service is complete. Service upon a party is complete:

(1) By personal delivery, on handing the paper to the individual, or leaving it at his office with that person's clerk or other person in charge or, if there is no one in charge, leaving it in a Start Printed Page 2238conspicuous place in the office, or if the office is closed or the person to be served has no office, leaving it at his usual place of residence with some person of suitable age and discretion then residing there;

(2) By mail, on deposit in the United States mail, properly stamped and addressed;

(3) By electronic mail, on transmission thereof, and service of a copy by another method of service permitted in paragraph (c) of this section;

(4) By facsimile transmission, on transmission thereof and receipt of electronic confirmation that one or more of the addressees for a party has successfully received the transmission. If the sender receives an electronic message that the facsimile transmission to an addressee was not deliverable or is otherwise informed that a transmission was unreadable, transmission to that person is not considered complete. In such an event, the sender shall reserve the document in accordance with paragraph (e)(1) through (e)(4) of this section; or

(5) When service cannot be effected in a manner provided by paragraphs (e)(1) to (4) inclusive of this section, in any other manner authorized by law.

(f) Service on the NRC staff. (1) Service shall be made upon the NRC staff of all papers and documents required to be filed with parties 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.

(2) If the NRC staff decides not to participate as a party in a proceeding, it shall, in its notification to the presiding officer and parties of its determination not to participate, designate a person and address for service of papers and documents.

Computation of time.

In computing any period of time, the day of the act, event, or default after which the designated period of time begins to run is not included. The last day of the period so computed is included unless it is a Saturday, Sunday, or legal holiday at the place where the action or event is to occur, in which event the period runs until the end of the next day which is neither a Saturday, Sunday, nor holiday. Whenever a party has the right or is required to do some act within a prescribed period after the service of a notice or other paper upon him or her and the notice or paper is served upon by first class mail, five (5) days are added to the prescribed period. Two (2) days are added to the prescribed period when a document is served by express mail or expedited delivery service. No time is added when the notice or paper is served in person, by courier, electronic mail or facsimile transmission. The period allotted for the recipient's response commences upon confirmation of receipt under § 2.305(e)(3) or (4), except that if a document is served in person, by courier, electronic transmission, or facsimile, and is received by a party after 5 p.m., in the recipient's time zone on the date of transmission, the recipient's response date is extended by one (1) business day.

Extension and reduction of time limits.

(a) Except as otherwise provided by law, the time fixed or the period of time prescribed for an act that is required or allowed to be done at or within a specified time, may be extended or shortened either by the Commission or the presiding officer for good cause, or by stipulation approved by the Commission or the presiding officer.

(b) If this part does not prescribe a time limit for an action to be taken in the proceeding, the Commission or the presiding officer may set a time limit for the action.

Treatment of requests for hearing or petitions for leave to intervene by the Secretary.

Upon receipt of a request for hearing or a petition to intervene, the Secretary will forward the request or petition and/or proffered contentions and any answers and replies either to the Commission for a ruling on the request/petition and/or proffered contentions or to the Chief Administrative Judge of the Atomic Safety and Licensing Board Panel for the designation of a presiding officer under § 2.313(a) to rule on the matter.

Hearing requests, petitions to intervene, requirements for standing, and contentions.

(a) General requirements. Any person whose interest may be affected by a proceeding and who desires to participate as a party must file a written request for hearing or petition for leave to intervene and a specification of the contentions which the person seeks to have litigated in the hearing. Except as provided in paragraph (e) of this section, the Commission, presiding officer or the Atomic Safety and Licensing Board designated to rule on the request for hearing and/or petition for leave to intervene will grant the request/petition if it determines that the requestor/petitioner has standing under the provisions of paragraph (d) of this section and has proposed at least one admissible contention that meets the requirements of paragraph (f) of this section. In ruling on the request for hearing/petition to intervene submitted by petitioners seeking to intervene in the proceeding on the HLW repository, the Commission, the presiding officer or the Atomic Safety and Licensing Board shall also consider any failure of the petitioner to participate as a potential party in the pre-license application phase under subpart J of this part in addition to the factors in paragraph (d) of this section. If a request for hearing or petition to intervene is filed in response to any notice of hearing or opportunity for hearing, the applicant/licensee shall be deemed to be a party.

(b) Timing. Unless otherwise provided by the Commission, the request and/or petition and the list of contentions must be filed as follows:

(1) In proceedings 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 statute, or pursuant to a license condition, twenty (20) days from the date of publication of the notice in the Federal Register.

(2) In proceedings for the initial authorization to construct a high-level radioactive waste geologic repository, and the initial licensee to receive and process high level radioactive waste at a geological repository operations area, thirty (30) days from the date of publication of the notice in the Federal Register.

(3) In proceedings for which a Federal Register notice of agency action is published (other than a proceeding covered by paragraphs (b)(1) or (b)(2) of this section), not later than:

(i) The time specified in any notice of hearing or notice of proposed action or as provided by the presiding officer or the Atomic Safety and Licensing Board designated to rule on the request and/or petition, which may not, with the exception of a notice provided under § 2.102(d)(3), be less than 60 days from the date of publication of the notice in the Federal Register;

(ii) The time provided in § 2.102(d)(3); or

(iii) If no period is specified, sixty (60) days from the date of publication of the notice.

(4) In proceedings for which a Federal Register notice of agency action is not published, not later than the latest of:

(i) Sixty (60) days after publication of notice on the NRC Web site at http://www.nrc.gov/​public-involve/​major-actions.html, or Start Printed Page 2239

(ii) Sixty (60) days after the requestor receives actual notice of a pending application, but not more than sixty (60) days after agency action on the application.

(5) For orders issued under § 2.202 the time period provided therein.

(c) Nontimely filings. (1) Nontimely requests and/or petitions and contentions will not be entertained absent a determination by the Commission, the presiding officer or the Atomic Safety and Licensing Board designated to rule on the request and/or petition and contentions that the request and/or petition should be granted and/or the contentions should be admitted based upon a balancing of the following factors to the extent that they apply to the particular nontimely filing:

(i) Good cause, if any, for the failure to file on time;

(ii) The nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding;

(iii) The nature and extent of the requestor's/petitioner's property, financial or other interest in the proceeding;

(iv) The possible effect of any order that may be entered in the proceeding on the requestor's/petitioner's interest;

(v) The availability of other means whereby the requestor's/petitioner's interest will be protected;

(vi) The extent to which the requestor's/petitioner's interests will be represented by existing parties;

(vii) The extent to which the requestor's/petitioner's participation will broaden the issues or delay the proceeding; and

(viii) The extent to which the requestor's/petitioner's participation may reasonably be expected to assist in developing a sound record.

(2) The requestor/petitioner shall address the factors in paragraphs (c)(1)(i) through (c)(1)(viii) of this section in its nontimely filing.

(d) Standing. (1) General requirements. A request for hearing or petition for leave to intervene must state:

(i) The name, address and telephone number of the requestor or petitioner;

(ii) The nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding;

(iii) The nature and extent of the requestor's/petitioner's property, financial or other interest in the proceeding; and

(iv) The possible effect of any decision or order that may be issued in the proceeding on the requestor's/petitioner's interest.

(2) State, local governmental body, and affected, Federally-recognized Indian Tribe. (i) A State, local governmental body (county, municipality or other subdivision), and any affected Federally-recognized Indian Tribe that desires to participate as a party in the proceeding shall submit a request for hearing/petition to intervene. The request/petition must meet the requirements of this section (including the contention requirements in paragraph (f) of this section), except that a State, local governmental body or affected Federally-recognized Indian Tribe that wishes to be a party in a proceeding for a facility located within its boundaries need not address the standing requirements under this paragraph. The State, local governmental body, and affected Federally-recognized Indian Tribe shall, in its request/petition, each designate a single representative for the hearing.

(ii) The Commission, the presiding officer or the Atomic Safety and Licensing Board designated to rule on requests for hearings or petitions for leave to intervene will admit as a party to a 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 affected Federally-recognized Indian Tribe. In determining the request/petition of a State, local governmental body, and any affected Federally-recognized Indian Tribe that wishes to be a party in a proceeding for a facility located within its boundaries, the Commission, the presiding officer or the Atomic Safety and Licensing Board designated to rule on requests for hearings or petitions for leave to intervene shall not require a further demonstration of standing.

(iii) 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.

(3) The Commission, the presiding officer, or the Atomic Safety and Licensing Board designated to rule on requests for hearing and/or petitions for leave to intervene will determine whether the petitioner has an interest affected by the proceeding considering the factors enumerated in § 2.309(d)(1)-(2), among other things. In enforcement proceedings, the licensee or other person against whom the action is taken shall have standing.

(e) Discretionary Intervention. The presiding officer may consider a request for discretionary intervention when at least one requestor/petitioner has established standing and at least one admissible contention has been admitted so that a hearing will be held. A requestor/petitioner may request that his or her petition be granted as a matter of discretion in the event that the petitioner is determined to lack standing to intervene as a matter of right under paragraph (d)(1) of this section. Accordingly, in addition to addressing the factors in paragraph (d)(1) of this section, a petitioner who wishes to seek intervention as a matter of discretion in the event it is determined that standing as a matter of right is not demonstrated shall address the following factors in his/her initial petition, which the Commission, the presiding officer or the Atomic Safety and Licensing Board will consider and balance:

(1) Factors weighing in favor of allowing intervention—

(i) The extent to which the requestor's/petitioner's participation may reasonably be expected to assist in developing a sound record;

(ii) The nature and extent of the requestor's/petitioner's property, financial or other interests in the proceeding; and

(iii) The possible effect of any decision or order that may be issued in the proceeding on the requestor's/petitioner's interest;

(2) Factors weighing against allowing intervention—

(i) The availability of other means whereby the requestor's/petitioner's interest will be protected;

(ii) The extent to which the requestor's/petitioner's interest will be represented by existing parties; and

(iii) The extent to which the requestor's/petitioner's participation will inappropriately broaden the issues or delay the proceeding.

(f) Contentions. (1) A request for hearing or petition for leave to intervene must set forth with particularity the contentions sought to be raised. For Start Printed Page 2240each contention, the request or petition must:

(i) Provide a specific statement of the issue of law or fact to be raised or controverted;

(ii) Provide a brief explanation of the basis for the contention;

(iii) Demonstrate that the issue raised in the contention is within the scope of the proceeding;

(iv) Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding;

(v) Provide a concise statement of the alleged facts or expert opinions which support the requestor's/petitioner's position on the issue and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the requestor/petitioner intends to rely to support its position on the issue; and

(vi) Provide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact. This information must include references to specific portions of the application (including the applicant's environmental report and safety report) that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioner's belief.

(2) Contentions must be based on documents or other information available at the time the petition is to be filed, such as the application, supporting safety analysis report, environmental report or other supporting document filed by an applicant or licensee, or otherwise available to a petitioner. On issues arising under the National Environmental Policy Act, the petitioner shall file contentions based on the applicant's environmental report. The petitioner may amend those contentions or file new contentions if there are data or conclusions in the NRC draft or final environmental impact statement, environmental assessment, or any supplements relating thereto, that differ significantly from the data or conclusions in the applicant's documents. Otherwise, contentions may be amended or new contentions filed after the initial filing only with leave of the presiding officer upon a showing that—

(i) The information upon which the amended or new contention is based was not previously available;

(ii) The information upon which the amended or new contention is based is materially different than information previously available; and

(iii) The amended or new contention has been submitted in a timely fashion based on the availability of the subsequent information.

(3) If two or more requestors/petitioners seek to co-sponsor a contention, the requestors/petitioners shall jointly designate a representative who shall have the authority to act for the requestors/petitioners with respect to that contention. If a requestor/petitioner seeks to adopt the contention of another sponsoring requestor/petitioner, the requestor/petitioner who seeks to adopt the contention must either agree that the sponsoring requestor/petitioner shall act as the representative with respect to that contention, or jointly designate with the sponsoring requestor/petitioner a representative who shall have the authority to act for the requestors/petitioners with respect to that contention.

(g) Selection of hearing procedures. A request for hearing and/or petition for leave to intervene may also address the selection of hearing procedures, taking into account the provisions of § 2.310. If a request/petition relies upon § 2.310(d), the request/petition must demonstrate, by reference to the contention and the bases provided and the specific procedures in subpart G of this part, that resolution of the contention necessitates resolution of material issues of fact which may be best determined through the use of the identified procedures.

(h) Answers to requests for hearing and petitions to intervene. Unless otherwise specified by the Commission, the presiding officer, or the Atomic Safety and Licensing Board designated to rule on requests for hearings or petitions for leave to intervene—

(1) The applicant/licensee, the NRC staff, and any other party to a proceeding may file an answer to a request for a hearing, a petition to intervene and/or proffered contentions within twenty-five (25) days after service of the request for hearing, petition and/or contentions. Answers should address, at a minimum, the factors set forth in paragraphs (a) through (g) of this section insofar as these sections apply to the filing that is the subject of the answer.

(2) The requestor/petitioner may file a reply to any answer withing seven (7) days after service of that answer.

(3) No other written answers or replies will be entertained.

(i) Decision on request/petition. The presiding officer shall, within forty-five (45) days after the filing of answers and replies under paragraph (h) of this section, issue a decision on each request for hearing/petition to intervene, absent an extension from the Commission.

Selection of hearing procedures.

Upon a determination that a request for hearing/petition to intervene should be granted and a hearing held, the Commission, the presiding officer, or the Atomic Safety and Licensing Board designated to rule on the request/petition will determine and identify the specific hearing procedures to be used for the proceeding as follows—

(a) Except as determined through the application of paragraphs (b) through (h) of this section, proceedings for the grant, renewal, licensee-initiated amendment, or termination of licenses or permits subject to parts 30, 32 through 36, 39, 40, 50, 52, 54, 55, 61, 70 and 72 of this chapter may be conducted under the procedures of subpart L of this part.

(b) Proceedings on enforcement matters must be conducted under the procedures of subpart G of this part, unless all parties agree and jointly request that the proceedings be conducted under the procedures of subpart L or subpart N of this part, as appropriate.

(c) Proceedings on the licensing of the construction and operation of a uranium enrichment facility must be conducted under the procedures of subpart G of this part.

(d) In proceedings for the grant, renewal, licensee-initiated amendment, or termination of licenses or permits for nuclear power reactors, where the presiding officer by order finds that resolution of the contention or contested matter necessitates resolution of issues of material fact relating to the occurrence of a past activity, where the credibility of an eyewitness may reasonably be expected to be at issue, and/or issues of motive or intent of the party or eyewitness material to the resolution of the contested matter, the hearing for resolution of that contention or contested matter will be conducted under subpart G of this part.

(e) Proceedings on applications for a license or license amendment to expand the spent nuclear fuel storage capacity at the site of a civilian nuclear power plant must be conducted under the procedures of subpart L of this part, unless a party requests that the proceeding be conducted under the procedures of subpart K of this part, or if all parties agree and jointly request that the proceeding be conducted under the procedures of subpart N of this part.Start Printed Page 2241

(f) Proceedings on an application for initial construction authorization for a high-level radioactive waste repository at a geologic repository operations area noticed pursuant to §§ 2.101(f)(8) or 2.105(a)(5), and proceedings on an initial application for a license to receive and possess high-level radioactive waste at a geologic repository operations area must be conducted under the procedures of subparts G and J of this part. Subsequent amendments to a construction authorization for a high-level radioactive geologic repository, and amendments to a license to receive and possess high level radioactive waste at a high level waste geologic repository may be conducted under the procedures of subpart L of this part, unless all parties agree and jointly request that the proceeding be conducted under the procedures of subpart N of this part.

(g) Proceedings on an application for the direct or indirect transfer of control of an NRC license which transfer requires prior approval of the NRC under the Commission's regulations, governing statutes or pursuant to a license condition shall be conducted under the procedures of subpart M of this part, unless the Commission determines otherwise in a case-specific order.

(h) Except as determined through the application of paragraphs (b) through (g) of this section, proceedings for the grant, renewal, licensee-initiated amendment, or termination of licenses or permits subject to parts 30, 32 through 36, 39, 40, 50, 52, 54, 55, 61, 70 and 72 of this chapter, and proceedings on an application for the direct or indirect transfer of control of an NRC license may be conducted under the procedures of subpart N of this part if—

(1) The hearing itself is expected to take no more than two (2) days to complete; or

(2) All parties to the proceeding agree that it should be conducted under the procedures of subpart N of this part.

(i) In design certification rulemaking proceedings under part 52 of this chapter, any informal hearing held under § 52.51 of this chapter must be conducted under the procedures of subpart O of this part.

(j) In proceedings where the Commission grants a petition filed under § 2.335(b), the Commission may, in its discretion, conduct a hearing under the procedures of subpart O of this part to assist the Commission in developing a record on the matters raised in the petition.

Interlocutory review of rulings on requests for hearing/petitions to intervene and selection of hearing procedures.

(a) An order of the presiding officer or of the Atomic Safety and Licensing Board on a request for hearing or a petition to intervene may be appealed to the Commission, only in accordance with the provisions of this section, within ten (10) 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 ten (10) days after service of the appeal. The supporting brief and any answer must conform to the requirements of § 2.341(c)(2). No other appeals from rulings on requests for hearings are allowed.

(b) An order denying a petition to intervene and/or request for hearing is appealable by the requestor/petitioner on the question as to whether the request and/or petition should have been granted.

(c) An order granting a petition to intervene and/or request for hearing is appealable by a party other than the requestor/petitioner on the question as to whether the request/petition should have been wholly denied.

(d) An order selecting a hearing procedure may be appealed by any party on the question as to whether the selection of the particular hearing procedures was in clear contravention of the criteria set forth in § 2.310. The appeal must be filed with the Commission no later than ten (10) days after issuance of the order selecting a hearing procedure.

Notice of hearing.

(a) In a proceeding in which the terms of a notice of hearing are not otherwise prescribed by this part, the order or notice of hearing will state:

(1) The nature of the hearing and its time and place, or a statement that the time and place will be fixed by subsequent order;

(2) The legal authority and jurisdiction under which the hearing is to be held;

(3) The matters of fact and law asserted or to be considered; and

(4) A statement describing the specific hearing procedures or subpart that will be used for the hearing.

(b) The time and place of hearing will be fixed with due regard for the convenience of the parties or their representatives, the nature of the proceeding and the public interest.

Designation of presiding officer, disqualification, unavailability, and substitution.

(a) Designation of presiding officer. The Commission may provide in the notice of hearing that one or more members of the Commission, an administrative law judge, an administrative judge, an Atomic Safety and Licensing Board, or a named officer who has been delegated final authority in the matter, shall be the presiding officer. The Commission alone shall designate the presiding officer in a hearing conducted under subpart O. If the Commission does not designate the presiding officer for a hearing under subparts G, J, K, L, M, or N of this part, then the Chief Administrative Judge shall issue an order designating:

(1) An Atomic Safety and Licensing Board appointed under Section 191 of the Atomic Energy Act of 1954, as amended, or an administrative law judge appointed pursuant to 5 U.S.C. 3105, for a hearing conducted under subparts G, J, K, L, or N of this part; or

(2) An Atomic Safety and Licensing Board, an administrative law judge, or an administrative judge for a hearing conducted under subpart M of this part.

(b) Disqualification. (1) If a designated presiding officer or a designated member of an Atomic Safety and Licensing Board believes that he or she is disqualified to preside or to participate as a board member in the hearing, he or she shall withdraw by notice on the record and shall notify the Commission or the Chief Administrative Judge, as appropriate, of the withdrawal.

(2) If a party believes that a presiding officer or a designated member of an Atomic Safety and Licensing Board should be disqualified, the party may move that the presiding officer or the Licensing Board member disqualify himself or herself. The motion must be supported by affidavits setting forth the alleged grounds for disqualification. If the presiding officer does not grant the motion or the Licensing Board member does not disqualify himself, the motion must be referred to the Commission. The Commission will determine the sufficiency of the grounds alleged.

(c) Unavailability. If a presiding officer or a designated member of an Atomic Safety and Licensing Board becomes unavailable during the course of a hearing, the Commission or the Chief Administrative Judge, as appropriate, will designate another presiding officer or Atomic Safety and Licensing Board member. If he or she becomes unavailable after the hearing has been concluded, then:

(1) The Commission may designate another presiding officer;Start Printed Page 2242

(2) The Chief Administrative Judge or the Commission, as appropriate, may designate another Atomic Safety and Licensing Board member to participate in the decision;

(3) The Commission may direct that the record be certified to it for decision.

(d) Substitution. If a presiding officer or a designated member of an Atomic Safety and Licensing Board is substituted for the one originally designated, any motion predicated upon the substitution must be made within five (5) days after the substitution.

Appearance and practice before the Commission in adjudicatory proceedings.

(a) Standards of practice. In the exercise of their functions under this subpart, the Commission, the Atomic Safety and Licensing Boards, Administrative Law Judges, and Administrative Judges function in a quasi-judicial capacity. Accordingly, parties and their representatives in proceedings subject to this subpart are expected to conduct themselves with honor, dignity, and decorum as they should before a court of law.

(b) Representation. A person may appear in an adjudication on his or her own behalf or by an attorney-at-law. A partnership, corporation, or unincorporated association may be represented by a duly authorized member or officer, or by an attorney-at-law. A party may be represented by an attorney-at-law if the attorney is in good standing and has been admitted to practice before any Court of the United States, the District of Columbia, or the highest court of any State, territory, or possession of the United States. Any person appearing in a representative capacity shall file with the Commission a written notice of appearance. The notice must state his or her name, address, telephone number, and facsimile number and email address, if any; the name and address of the person or entity on whose behalf he or she appears; and, in the case of an attorney-at-law, the basis of his or her eligibility as a representative or, in the case of another representative, the basis of his or her authority to act on behalf of the party.

(c) Reprimand, censure or suspension from the proceeding. (1) A presiding officer, or the Commission may, if necessary for the orderly conduct of a proceeding, reprimand, censure or suspend from participation in the particular proceeding pending before it any party or representative of a party who refuses to comply with its directions, or who is disorderly, disruptive, or engages in contemptuous conduct.

(2) A reprimand, censure, or a suspension that is ordered to run for one day or less must state the grounds for the action in the record of the proceeding, and must advise the person disciplined of the right to appeal under paragraph (c)(3) of this section. A suspension that is ordered for a longer period must be in writing, state the grounds on which it is based, and advise the person suspended of the right to appeal and to request a stay under paragraphs (c)(3) and (c)(4) of this section. The suspension may be stayed for a reasonable time in order for an affected party to obtain other representation if this would be necessary to prevent injustice.

(3) Anyone disciplined under this section may file an appeal with the Commission within ten (10) 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.

(4) A suspension exceeding one (1) day is not effective for seventy-two (72) hours from the date the suspension order is issued. Within this time, a suspended individual may request a stay of the sanction from the appropriate reviewing tribunal pending appeal. No responses to the stay request from other parties will be entertained. If a timely stay request is filed, the suspension must be stayed until the reviewing tribunal rules on the motion. The stay request must be in writing and contain the information specified in § 2.342(b). The Commission shall rule on the stay request within ten (10) days after the filing of the motion. The Commission shall consider the factors specified in § 2.342(e)(1) and (e)(2) in determining whether to grant or deny a stay application.

Participation by a person not a party.

(a) A person who is not a party (including persons who are affiliated with or represented by a party) may, in the discretion of the presiding officer, be permitted to make a limited appearance by making an oral or written statement of his or her position on the issues at any session of the hearing or any prehearing conference within the limits and on the conditions fixed by the presiding officer. However, that person may not otherwise participate in the proceeding. Such statements of position shall not be considered evidence in the proceeding.

(b) The Secretary will give notice of a hearing to any person who requests it before the issuance of the notice of hearing, and will furnish a copy of the notice of hearing to any person who requests it thereafter. If a communication bears more than one signature, the Commission will give the notice to the person first signing unless the communication clearly indicates otherwise.

(c) The presiding officer will afford an interested State, local governmental body (county, municipality or other subdivision), and affected, Federally-recognized Indian Tribe, which has not been admitted as a party under § 2.309, a reasonable opportunity to participate in a hearing. Each State, local governmental body, and affected Federally-recognized Indian Tribe shall, in its request to participate in a hearing, each 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 § 2.341 with respect to the admitted contentions. The representative shall identify those contentions on which it will participate in advance of any hearing held.

(d) If a matter is taken up by the Commission under § 2.341 or sua sponte, a person who is not a party may, in the discretion of the Commission, be permitted to file a brief “amicus curiae.” Such a person shall submit the Start Printed Page 2243amicus brief together with a motion for leave to do so which identifies the interest of the person and states the reasons why a brief is desirable. Unless the Commission provides otherwise, the brief must be filed within the time allowed to the party whose position the brief will support. A motion of a person who is not a party to participate in oral argument before the Commission will be granted at the discretion of the Commission.

Consolidation of parties.

On motion or on its or his own initiative, the Commission or the presiding officer may order any parties in a proceeding who have substantially the same interest that may be affected by the proceeding and who raise substantially the same questions, to consolidate their presentation of evidence, cross-examination, briefs, proposed findings of fact, and conclusions of law and argument. However, it may not order any consolidation that would prejudice the rights of any party. A consolidation under this section may be for all purposes of the proceeding, all of the issues of the proceeding, or with respect to any one or more issues thereof.

Separate hearings; consolidation of proceedings.

(a) Separate hearings. On motion by the parties or upon request of the presiding officer for good cause shown, or on its own initiative, the Commission may establish separate hearings in a proceeding if it is found that the action will be conducive to the proper dispatch of its business and to the ends of justice and will be conducted in accordance with the other provisions of this subpart.

(b) Consolidation of proceedings. On motion and for good cause shown or on its own initiative, the Commission or the presiding officers of each affected proceeding may consolidate for hearing or for other purposes two or more proceedings, or may hold joint hearings with interested States and/or other Federal agencies on matters of concurrent jurisdiction, if it is found that the action will be conducive to the proper dispatch of its business and to the ends of justice and will be conducted in accordance with the other provisions of this subpart.

Commencement and termination of jurisdiction of presiding officer.

(a) Unless the Commission orders otherwise, the jurisdiction of the presiding officer designated to conduct a hearing over the proceeding, including motions and procedural matters, commences when the proceeding commences. If a presiding officer has not been designated, the Chief Administrative Judge has jurisdiction or, if he or she is unavailable, another administrative judge or administrative law judge has jurisdiction. A proceeding commences when a notice of hearing or a notice of proposed action under § 2.105 is issued. When a notice of hearing provides that the presiding officer is to be an administrative judge or an administrative law judge, the Chief Administrative Judge will designate by order the administrative judge or administrative law judge, as appropriate, who is to preside. The presiding officer's jurisdiction in each proceeding terminates when the period within which the Commission may direct that the record be certified to it for final decision expires, when the Commission renders a final decision, or when the presiding officer withdraws from the case upon considering himself or herself disqualified, whichever is earliest.

(b) The Director of Nuclear Reactor Regulation or the Director of Nuclear Material Safety and Safeguards, as appropriate, may issue an order and take any otherwise proper administrative action with respect to a licensee who is a party to a pending proceeding. Any order related to the subject matter of the pending proceeding may be modified by the presiding officer as appropriate for the purpose of the proceeding.

Power of the presiding officer.

A presiding officer has the duty to conduct a fair and impartial hearing according to law, to take appropriate action to control the prehearing and hearing process, to avoid delay and to maintain order. The presiding officer has all the powers necessary to those ends, including the powers to:

(a) Administer oaths and affirmations;

(b) Issue subpoenas authorized by law, including subpoenas requested by a participant for the attendance and testimony of witnesses or the production of evidence upon the requestor's showing of general relevance and reasonable scope of the evidence sought;

(c) Consolidate parties and proceedings in accordance with §§ 2.316 and 2.317 and/or direct that common interests be represented by a single spokesperson;

(d) Rule on offers of proof and receive evidence. In proceedings under this part, strict rules of evidence do not apply to written submissions. However, the presiding officer may, on motion or on the presiding officer's own initiative, strike any portion of a written presentation or a response to a written question that is irrelevant, immaterial, unreliable, duplicative or cumulative.

(e) Restrict irrelevant, immaterial, unreliable, duplicative or cumulative evidence and/or arguments;

(f) Order depositions to be taken as appropriate;

(g) Regulate the course of the hearing and the conduct of participants;

(h) Dispose of procedural requests or similar matters;

(i) Examine witnesses;

(j) Hold conferences before or during the hearing for settlement, simplification of contentions, or any other proper purpose;

(k) Set reasonable schedules for the conduct of the proceeding and take actions reasonably calculated to maintain overall schedules;

(l) Certify questions to the Commission for its determination, either in the presiding officer's discretion, or on motion of a party or on direction of the Commission;

(m) Reopen a proceeding for the receipt of further evidence at any time before the initial decision;

(n) Appoint special assistants from the Atomic Safety and Licensing Board Panel under § 2.322;

(o) Issue initial decisions as provided in this part;

(p) Dispose of motions by written order or by oral ruling during the course of a hearing or prehearing conference. The presiding officer should ensure that parties not present for the oral ruling are notified promptly of the ruling;

(q) Issue orders necessary to carry out the presiding officer's duties and responsibilities under this part; and

(r) Take any other action consistent with the Act, this chapter, and 5 U.S.C. 551-558.

Default.

If a party fails to file an answer or pleading within the time prescribed in this part or as specified in the notice of hearing or pleading, to appear at a hearing or prehearing conference, to comply with any prehearing order entered by the presiding officer, or to comply with any discovery order entered by the presiding officer, the Commission or the presiding officer may make any orders in regard to the failure that are just, including, among others, the following:

(a) Without further notice, find the facts as to the matters regarding which the order was made in accordance with the claim of the party obtaining the order, and enter the order as appropriate; or

(b) Proceed without further notice to take proof on the issues specified.

Start Printed Page 2244
Atomic Safety and Licensing Boards.

(a) The Commission or the Chief Administrative Judge may establish one or more Atomic Safety and Licensing Boards, each comprised of three members, one of whom will be qualified in the conduct of administrative proceedings and two of whom have such technical or other qualifications as the Commission or the Chief Administrative Judge determines to be appropriate to the issues to be decided. The members of an Atomic Safety and Licensing Board shall be designated from the Atomic Safety and Licensing Board Panel established by the Commission. In proceedings for granting, suspending, revoking, or amending licenses or authorizations as the Commission may designate, the Atomic Safety and Licensing Board shall perform the adjudicatory functions that the Commission determines are appropriate.

(b) The Commission or the Chief Administrative Judge may designate an alternate qualified in the conduct of administrative proceedings, or an alternate having technical or other qualifications, or both, for an Atomic Safety and Licensing Board established under paragraph (a) of this section. If a member of a board becomes unavailable, the Commission or the Chief Administrative Judge may constitute the alternate qualified in the conduct of administrative proceedings, or the alternate having technical or other qualifications, as appropriate, as a member of the board by notifying the alternate who will, as of the date of the notification, serve as a member of the board. If an alternate is unavailable or no alternates have been designated, and a member of a board becomes unavailable, the Commission or Chief Administrative Judge may appoint a member of the Atomic Safety and Licensing Board Panel who is qualified in the conduct of administrative proceedings or a member having technical or other qualifications, as appropriate, as a member of the Atomic Safety and Licensing Board by notifying the appointee who will, as of the date of the notification, serve as a member of the board.

(c) An Atomic Safety and Licensing Board has the duties and may exercise the powers of a presiding officer as granted by § 2.319 and otherwise in this part. Any time when a board is in existence but is not actually in session, any powers which could be exercised by a presiding officer or by the Chief Administrative Judge may be exercised with respect to the proceeding by the chairman of the board having jurisdiction over it. Two members of an Atomic Safety and Licensing Board constitute a quorum if one of those members is the member qualified in the conduct of administrative proceedings.

Special assistants to the presiding officer.

(a) In consultation with the Chief Administrative Judge, the presiding officer may, at his or her discretion, appoint personnel from the Atomic Safety and Licensing Board Panel established by the Commission to assist the presiding officer in taking evidence and preparing a suitable record for review. The appointment may occur at any appropriate time during the proceeding but must, at the time of the appointment, be subject to the notice and disqualification provisions as described in § 2.313. The special assistants may function as:

(1) Technical interrogators in their individual fields of expertise. The interrogators shall study the written testimony and sit with the presiding officer to hear the presentation and, where permitted in the proceeding, the cross-examination by the parties of all witnesses on the issues of the interrogators' expertise. The interrogators shall take a leading role in examining the witnesses to ensure that the record is as complete as possible;

(2) Upon consent of all the parties, special masters to hear evidentiary presentations by the parties on specific technical matters, and, upon completion of the presentation of evidence, to prepare a report that would become part of the record. Special masters may rule on evidentiary issues brought before them, in accordance with § 2.333. Appeals from special masters' rulings may be taken to the presiding officer in accordance with procedures established in the presiding officer's order appointing the special master. Special masters' reports are advisory only; the presiding officer retains final authority with respect to the issues heard by the special master;

(3) Alternate Atomic Safety and Licensing Board members to sit with the presiding officer, to participate in the evidentiary sessions on the issue for which the alternate members were designated by examining witnesses, and to advise the presiding officer of their conclusions through an on-the-record report. This report is advisory only; the presiding officer retains final authority on the issue for which the alternate member was designated; or

(4) Discovery master to rule on the matters specified in § 2.1018(a)(2).

(b) The presiding officer may, as a matter of discretion, informally seek the assistance of members of the Atomic Safety and Licensing Board Panel to brief the presiding officer on the general technical background of subjects involving complex issues that the presiding officer might otherwise have difficulty in quickly grasping. These briefings take place before the hearing on the subject involved and supplement the reading and study undertaken by the presiding officer. They are not subject to the procedures described in § 2.313.

Motions.

(a) Presentation and disposition. All motions must be addressed to the Commission or other designated presiding officer. A motion must be made no later than ten (10) days after the occurrence or circumstance from which the motion arises. All written motions must be filed with the Secretary and served on all parties to the proceeding.

(b) Form and content. Unless made orally on-the-record during a hearing, or the presiding officer directs otherwise, or under the provisions of subpart N of this part, a motion must be in writing, state with particularity the grounds and the relief sought, be accompanied by any affidavits or other evidence relied on, and, as appropriate, a proposed form of order. A motion must be rejected if it does not include a certification by the attorney or representative of the moving party that the movant has made a sincere effort to contact other parties in the proceeding and resolve the issue(s) raised in the motion, and that the movant's efforts to resolve the issue(s) have been unsuccessful.

(c) Answers to motions. Within ten (10) days after service of a written motion, or other period as determined by the Secretary, the Assistant Secretary, or the presiding officer, a party may file an answer in support of or in opposition to the motion, accompanied by affidavits or other evidence. The moving party has no right to reply, except as permitted by the Secretary, the Assistant Secretary, or the presiding officer. Permission may be granted only in compelling circumstances, such as where the moving party demonstrates that it could not reasonably have anticipated the arguments to which it seeks leave to reply.

(d) Accuracy in filing. All parties are obligated, in their filings before the presiding officer and the Commission, to ensure that their arguments and assertions are supported by appropriate and accurate references to legal authority and factual basis, including, as appropriate, citations to the record. Failure to do so may result in Start Printed Page 2245appropriate sanctions, including striking a matter from the record or, in extreme circumstances, dismissal of the party.

(e) Motions for reconsideration. Motions for reconsideration may not be filed except upon leave of the presiding officer or the Commission, upon a showing of compelling circumstances, such as the existence of a clear and material error in a decision, which could not have reasonably been anticipated, that renders the decision invalid. A motion must be filed within ten (10) days of the action for which reconsideration is requested. The motion and any responses to the motion are limited to ten (10) pages.

(f) Referral and certifications to the Commission. (1) If, in the judgment of the presiding officer, 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, the presiding officer may refer the ruling promptly to the Commission. The presiding officer must 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 an issue to the Commission for early review. The presiding officer shall apply the alternative standards of § 2.341(f) in ruling on the petition for certification. No motion for reconsideration of the presiding officer's ruling on a petition for certification will be entertained.

(g) Effect of filing a motion, petition, or certification of question to the Commission. Unless otherwise ordered, neither the filing of a motion, the filing of a petition for certification, nor the certification of a question to the Commission stays the proceeding or extends the time for the performance of any act.

(h) Motions to compel discovery. Parties may file answers to motions to compel discovery in accordance with paragraph (c) of this section. The presiding officer, in his or her discretion, may order that the answer be given orally during a telephone conference or other prehearing conference, rather than in writing. If responses are given over the telephone, the presiding officer shall issue a written order on the motion summarizing the views presented by the parties. This does not preclude the presiding officer from issuing a prior oral ruling on the matter effective at the time of the ruling, if the terms of the ruling are incorporated in the subsequent written order.

Order of procedure.

The presiding officer or the Commission will designate the order of procedure at a hearing. The proponent of an order will ordinarily open and close.

Burden of proof.

Unless the presiding officer otherwise orders, the applicant or the proponent of an order has the burden of proof.

Motions to reopen.

(a) A motion to reopen a closed record to consider additional evidence will not be granted unless the following criteria are satisfied:

(1) The motion must be timely. However, an exceptionally grave issue may be considered in the discretion of the presiding officer even if untimely presented;

(2) The motion must address a significant safety or environmental issue; and

(3) The motion must demonstrate that a materially different result would be or would have been likely had the newly proffered evidence been considered initially.

(b) The motion must be accompanied by affidavits that set forth the factual and/or technical bases for the movant's claim that the criteria of paragraph (a) of this section have been satisfied. Affidavits must be given by competent individuals with knowledge of the facts alleged, or by experts in the disciplines appropriate to the issues raised. Evidence contained in affidavits must meet the admissibility standards of this subpart. Each of the criteria must be separately addressed, with a specific explanation of why it has been met. When multiple allegations are involved, the movant must identify with particularity each issue it seeks to litigate and specify the factual and/or technical bases which it believes support the claim that this issue meets the criteria in paragraph (a) of this section.

(c) A motion predicated in whole or in part on the allegations of a confidential informant must identify to the presiding officer the source of the allegations and must request the issuance of an appropriate protective order.

(d) A motion to reopen which relates to a contention not previously in controversy among the parties must also satisfy the requirements for nontimely contentions in § 2.309(c).

Official recording; transcript.

(a) Recording hearings. A hearing will be recorded stenographically or by other means under the supervision of the presiding officer. If the hearing is recorded on videotape or some other video medium, before an official transcript is prepared under paragraph (b) of this section, that video recording will be considered to constitute the record of events at the hearing.

(b) Official transcript. For each hearing, a transcript will be prepared from the recording made in accordance with paragraph (a) of this section that will be the sole official transcript of the hearing. The transcript will be prepared by an official reporter who may be designated by the Commission or may be a regular employee of the Commission. Except as limited by section 181 of the Act or order of the Commission, the transcript will be available for inspection in the agency's public records system.

(c) Availability of copies. Copies of transcripts prepared in accordance with paragraph (b) of this section are available to the parties and to the public from the official reporter on payment of the charges fixed therefor. If a hearing is recorded on videotape or other video medium, copies of the recording of each daily session of the hearing may be made available to the parties and to the public from the presiding officer upon payment of a charge specified by the Chief Administrative Judge.

(d) Transcript corrections. Corrections of the official transcript may be made only in the manner provided by this paragraph. Corrections ordered or approved by the presiding officer must be included in the record as an appendix. When so incorporated, the Secretary shall make the necessary physical corrections in the official transcript so that it will incorporate the changes ordered. In making corrections, pages may not be substituted but, to the extent practicable, corrections must be made by running a line through the matter to be changed without obliteration and writing the matter as changed immediately above. If the correction consists of an insertion, it must be added by rider or interlineation as near as possible to the text which is intended to precede and follow it.

Hearings to be public.

Except as may be requested under section 181 of the Act, all hearings will be public unless otherwise ordered by the Commission.

Prehearing conference.

(a) Necessity for prehearing conference; timing. The Commission or Start Printed Page 2246the presiding officer may, and in the case of a proceeding on an application for a construction permit or an operating license for a facility of a type described in §§ 50.21(b) or 50.22 of this chapter or a testing facility, shall direct the parties or their counsel to appear at a specified time and place for a conference or conferences before trial. A prehearing conference in a proceeding involving a construction permit or operating license for a facility of a type described in §§ 50.21(b) or 50.22 of this chapter must be held within sixty (60) days after discovery has been completed or any other time specified by the Commission or the presiding officer.

(b) Objectives. The following subjects may be discussed, as directed by the Commission or the presiding officer, at the prehearing conference:

(1) Expediting the disposition of the proceeding;

(2) Establishing early and continuing control so that the proceeding will not be protracted because of lack of management;

(3) Discouraging wasteful prehearing activities;

(4) Improving the quality of the hearing through more thorough preparation, and;

(5) Facilitating the settlement of the proceeding or any portions of it.

(c) Other matters for consideration. As appropriate for the particular proceeding, a prehearing conference may be held to consider such matters as:

(1) Simplification, clarification, and specification of the issues;

(2) The necessity or desirability of amending the pleadings;

(3) Obtaining stipulations and admissions of fact and the contents and authenticity of documents to avoid unnecessary proof, and advance rulings from the presiding officer on the admissibility of evidence;

(4) The appropriateness and timing of summary disposition motions under subparts G and L of this part, including appropriate limitations on the page length of motions and responses thereto;

(5) The control and scheduling of discovery, including orders affecting disclosures and discovery under the discovery provisions in subpart G of this part.

(6) Identification of witnesses and documents, and the limitation of the number of expert witnesses, and other steps to expedite the presentation of evidence, including the establishment of reasonable limits on the time allowed for presenting direct and, where permitted, cross-examination evidence;

(7) The disposition of pending motions;

(8) Settlement and the use of special procedures to assist in resolving any issues in the proceeding;

(9) The need to adopt special procedures for managing potentially difficult or protracted proceedings that may involve particularly complex issues, including the establishment of separate hearings with respect to any particular issue in the proceeding;

(10) The setting of a hearing schedule, including any appropriate limitations on the scope and time permitted for cross-examination where cross-examination is permitted; and

(11) Other matters that the Commission or presiding officer determines may aid in the just and orderly disposition of the proceeding.

(d) Reports. Prehearing conferences may be reported stenographically or by other means.

(e) Prehearing conference order. The presiding officer shall enter an order that recites the action taken at the conference, the amendments allowed to the pleadings and agreements by the parties, and the issues or matters in controversy to be determined in the proceeding. Any objections to the order must be filed by a party within five (5) days after service of the order. Parties may not file replies to the objections unless the presiding officer so directs. The filing of objections does not stay the decision unless the presiding officer so orders. The presiding officer may revise the order in the light of the objections presented and, as permitted by § 2.319(l), may certify for determination to the Commission any matter raised in the objections the presiding officer finds appropriate. The order controls the subsequent course of the proceeding unless modified for good cause.

Stipulations.

Apart from any stipulations made during or as a result of a prehearing conference, the parties may stipulate in writing at any stage of the proceeding or orally during the hearing, any relevant fact or the contents or authenticity of any document. These stipulations may be received in evidence. The parties may also stipulate as to the procedure to be followed in the proceeding. These stipulations may, on motion of all parties, be recognized by the presiding officer to govern the conduct of the proceeding.

Oral argument before the presiding officer.

When, in the opinion of the presiding officer, time permits and the nature of the proceeding and the public interest warrant, the presiding officer may allow, and fix a time for, the presentation of oral argument. The presiding officer will impose appropriate limits of time on the argument. The transcript of the argument is part of the record.

General case scheduling and management.

(a) Scheduling order. The presiding officer shall, as soon as practicable after consulting with the parties by a scheduling conference, telephone, mail, or other suitable means, enter a scheduling order that establishes limits for the time to file motions, conclude discovery, and take other actions in the proceeding. The scheduling order may also include:

(1) Modifications of the times for disclosures under §§ 2.336 and 2.704 and of the extent of discovery to be permitted;

(2) The date or dates for prehearing conferences, and hearings; and

(3) Any other matters appropriate in the circumstances of the proceeding.

(b) Modification of schedule. A schedule may not be modified except upon a finding by the presiding officer or the Commission of good cause. In making such a good cause determination, the presiding officer or the Commission should take into account the following factors, among other things:

(1) Whether the requesting party has exercised due diligence to adhere to the schedule;

(2) Whether the requested change is the result of unavoidable circumstances; and

(3) Whether the other parties have agreed to the change and the overall effect of the change on the schedule of the case.

(c) Objectives of scheduling order. The scheduling order must have as its objectives proper case management purposes such as:

(1) Expediting the disposition of the proceeding;

(2) Establishing early and continuing control so that the proceeding will not be protracted because of lack of management;

(3) Discouraging wasteful prehearing activities;

(4) Improving the quality of the hearing through more thorough preparation; and

(5) Facilitating the settlement of the proceeding or any portions thereof, including the use of Alternative Dispute Resolution, when and if the presiding officer, upon consultation with the parties, determines that these types of efforts should be pursued.

(d) Effect of NRC staff's schedule on scheduling order. In establishing a Start Printed Page 2247schedule, the presiding officer shall take into consideration the NRC staff's projected schedule for completion of its safety and environmental evaluations to ensure that the hearing schedule does not adversely impact the staff's ability to complete its reviews in a timely manner. Hearings on safety issues may be commenced before publication of the NRC staff's safety evaluation upon a finding by the presiding officer that commencing the hearings at that time would expedite the proceeding. Where an environmental impact statement (EIS) is involved, hearings on environmental issues addressed in the EIS may not commence before the issuance of the final EIS. In addition, discovery against the NRC staff on safety or environmental issues, respectively, should be suspended until the staff has issued the SER or EIS, unless the presiding officer finds that the commencement of discovery against the NRC staff (as otherwise permitted by the provisions of this part) before the publication of the pertinent document will not adversely affect completion of the document and will expedite the hearing.

Authority of the presiding officer to regulate procedure in a hearing.

To prevent unnecessary delays or an unnecessarily large record, the presiding officer:

(a) May limit the number of witnesses whose testimony may be cumulative;

(b) May strike argumentative, repetitious, cumulative, unreliable, immaterial, or irrelevant evidence;

(c) Shall require each party or participant who requests permission to conduct cross-examination to file a cross-examination plan for each witness or panel of witnesses the party or participant proposes to cross-examine;

(d) Must ensure that each party or participant permitted to conduct cross-examination conducts its cross-examination in conformance with the party's or participant's cross-examination plan filed with the presiding officer;

(e) May take necessary and proper measures to prevent argumentative, repetitious, or cumulative cross-examination; and

(f) May impose such time limitations on arguments as the presiding officer determines appropriate, having regard for the volume of the evidence and the importance and complexity of the issues involved.

Schedules for proceedings.

(a) Unless the Commission directs otherwise in a particular proceeding, the presiding officer or the Atomic Safety and Licensing Board assigned to the proceeding shall, based on information and projections provided by the parties and the NRC staff, establish and take appropriate action to maintain a schedule for the completion of the evidentiary record and, as appropriate, the issuance of its initial decision.

(b) The presiding officer or the Atomic Safety and Licensing Board assigned to the proceeding shall provide written notification to the Commission any time during the course of the proceeding when it appears that the completion of the record or the issuance of the initial decision will be delayed more than sixty (60) days beyond the time specified in the schedule established under § 2.334(a). The notification must include an explanation of the reasons for the projected delay and a description of the actions, if any, that the presiding officer or the Board proposes to take to avoid or mitigate the delay.

Consideration of Commission rules and regulations in adjudicatory proceedings.

(a) Except as provided in paragraphs (b), (c), and (d) of this section, no rule or regulation of the Commission, or any provision thereof, concerning the licensing of production and utilization facilities, source material, special nuclear material, or byproduct material, is subject to attack by way of discovery, proof, argument, or other means in any adjudicatory proceeding subject to this part.

(b) A party 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 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 party 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 party 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.

(d) If, on the basis of the petition, affidavit and any response provided for in paragraph (b) of this section, the presiding officer determines that the prima facie showing required by paragraph (b) of this section has been made, the presiding officer shall, before ruling on the petition, certify the matter directly to the Commission (the matter will be certified to the Commission notwithstanding other provisions on certification in this part) for a determination in the matter of whether the application of the Commission rule or regulation or provision thereof to a particular aspect or aspects of the subject matter of the proceeding, in the context of this section, should be waived or an exception made. The Commission may, among other things, on the basis of the petition, affidavits, and any response, determine whether the application of the specified rule or regulation (or provision thereof) should be waived or an exception be made. The Commission may direct further proceedings as it considers appropriate to aid its determination.

(e) Whether or not the procedure in paragraph (b) of this section is available, a party to an initial or renewal licensing proceeding may file a petition for rulemaking under § 2.802.

General discovery.

(a) Except for proceedings conducted under subparts G and 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, all parties, other than the NRC staff, to any proceeding subject to this part shall, within thirty (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 provide:Start Printed Page 2248

(1) The name and, if known, the address and telephone number of any person, including any expert, upon whose opinion the party bases its claims and contentions and may rely upon as a witness, and a copy of the analysis or other authority upon which that person bases his or her opinion;

(2)(i) A copy, or a description by category and location, of all documents and data compilations in the possession, custody, or control of the party that are relevant to the contentions, provided that if only a description is provided of a document or data compilation, a party shall have the right to request copies of that document and/or data compilation, and

(ii) A copy (for which there is no claim of privilege or protected status), or a description by category and location, of all tangible things (e.g., books, publications and treatises) in the possession, custody or control of the party that are relevant to the contention.

(iii) 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, the title and a page reference to the relevant document, data compilation, or tangible thing.

(3) A list of documents otherwise required to be disclosed 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) 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 shall, within thirty (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/or provide, to the extent available (but excluding those documents for which there is a claim of privilege or protected status):

(1) The application and/or applicant/licensee requests associated with the application or proposed action that is the subject of the proceeding;

(2) NRC correspondence with the applicant or licensee associated with the application or proposed action that is the subject of the proceeding;

(3) 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 is the subject of the proceeding;

(4) 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; and

(5) 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.

(c) Each party and the NRC staff shall make its initial disclosures under paragraphs (a) and (b) of this section, based on the information and documentation then reasonably available to it. A party, including the NRC staff, is not excused from making the required disclosures because it has not fully completed its investigation of the case, it challenges the sufficiency of another entity's disclosures, or that another entity has not yet made its disclosures. All disclosures under this section must be accompanied by a certification (by sworn affidavit) that all relevant materials required by this section have been disclosed, and that the disclosures are accurate and complete as of the date of the certification.

(d) The duty of disclosure under this section is continuing, and any information or documents that are subsequently developed or obtained must be disclosed within fourteen (14) days.

(e)(1)The presiding officer may impose sanctions, including dismissal of specific contentions, dismissal of the adjudication, denial or dismissal of the application or proposed action, or the use of the discovery provisions in subpart G of this part against the offending party, for the offending party's continuing unexcused failure to make the disclosures required by this section.

(2) The presiding officer may impose sanctions on a party that fails to provide any document or witness name required to be disclosed under this section, unless the party demonstrates good cause for its failure to make the disclosure required by this section. A sanction that may be imposed by the presiding officer is prohibiting the admission into evidence of documents or testimony of the witness proffered by the offending party in support of its case.

(f) The disclosures required by this section constitute the sole discovery permitted for NRC proceedings under this part unless there is further provision for discovery under the specific subpart under which the hearing will be conducted or unless the Commission provides otherwise in a specific proceeding.

Evidence at a hearing.

(a) Admissibility. Only relevant, material, and reliable evidence which is not unduly repetitious will be admitted. Immaterial or irrelevant parts of an admissible document will be segregated and excluded so far as is practicable.

(b) Objections. An objection to evidence must briefly state the grounds of objection. The transcript must include the objection, the grounds, and the ruling. Exception to an adverse ruling is preserved without notation on-the-record.

(c) Offer of proof. An offer of proof, made in connection with an objection to a ruling of the presiding officer excluding or rejecting proffered oral testimony, must consist of a statement of the substance of the proffered evidence. If the excluded evidence is in written form, a copy must be marked for identification. Rejected exhibits, adequately marked for identification, must be retained in the record.

(d) Exhibits. A written exhibit will not be received in evidence unless the original and two copies are offered and a copy is furnished to each party, or the parties have been previously furnished with copies or the presiding officer directs otherwise. The presiding officer may permit a party to replace with a true copy an original document admitted in evidence.

(e) Official record. An official record of a government agency or entry in an official record may be evidenced by an official publication or by a copy attested by the officer having legal custody of the record and accompanied by a certificate of his custody.

(f) Official notice. (1) The Commission or the presiding officer may take official notice of any fact of which a court of the United States may take judicial notice or of any technical or scientific fact within the knowledge of the Commission as an expert body. Each fact officially noticed under this paragraph must be specified in the record with sufficient particularity to advise the parties of the matters which have been noticed or brought to the attention of the parties before final decision and each party adversely affected by the decision shall be given opportunity to controvert the fact.

(2) If a decision is stated to rest in whole or in part on official notice of a fact which the parties have not had a prior opportunity to controvert, a party may controvert the fact by filing an Start Printed Page 2249appeal from an initial decision or a petition for reconsideration of a final decision. The appeal must clearly and concisely set forth the information relied upon to controvert the fact.

(g) Proceedings involving applications—(1) Facility construction permits. In a proceeding involving an application for construction permit for a production or utilization facility, the NRC staff shall offer into evidence any report submitted by the ACRS in the proceeding in compliance with section 182(b) of the Act, any safety evaluation prepared by the NRC staff, and any environmental impact statement prepared in the proceeding under subpart A of part 51 of this chapter by the Director of Nuclear Reactor Regulation or Director of Nuclear Material Safety and Safeguards, as appropriate, or his or her designee.

(2) Other applications where the NRC staff is a party. In a proceeding involving an application for other than a construction permit for a production or utilization facility, the NRC staff shall offer into evidence:

(i) Any report submitted by the ACRS in the proceeding in compliance with section 182(b) of the Act;

(ii) At the discretion of the NRC staff, a safety evaluation prepared by the NRC staff and/or NRC staff testimony and evidence on the contention/controverted matter prepared in advance of the completion of the safety evaluation;

(iii) Any NRC staff statement of position on the contention/controverted matter provided to the presiding officer under §§ 2.1202(a); and

(iv) Any environmental impact statement or environmental assessment prepared in the proceeding under subpart A of part 51 of this chapter by the Director of Nuclear Reactor Regulation or Director of Nuclear Material Safety and Safeguards, as appropriate, or his or her designee if there is any, but only if there are contentions/controverted matters with respect to the adequacy of the environmental impact statement or environmental assessment.

(3) Other applications where the NRC staff is not a party. In a proceeding involving an application for other than a construction permit for a production or utilization facility, the NRC staff shall offer into evidence, and (with the exception of an ACRS report) provide one or more sponsoring witnesses, for:

(i) Any report submitted by the ACRS in the proceeding in compliance with section 182(b) of the Act;

(ii) At the discretion of the NRC staff, a safety evaluation prepared by the NRC staff and/or NRC staff testimony and evidence on the contention/controverted matter prepared in advance of the completion of the safety evaluation;

(iii) Any NRC staff statement of position on the contention/controverted matter under § 2.1202(a); and

(iv) Any environmental impact statement or environmental assessment prepared in the proceeding under subpart A of part 51 of this chapter by the Director of Nuclear Reactor Regulation or Director of Nuclear Material Safety and Safeguards, as appropriate, or his or her designee if there is any, but only if there are contentions/controverted matters with respect to the adequacy of the environmental impact statement or environmental assessment.

Settlement of issues; alternative dispute resolution.

The fair and reasonable settlement and resolution of issues proposed for litigation in proceedings subject to this part is encouraged. Parties are encouraged to employ various methods of alternate dispute resolution to address the issues without the need for litigation in proceedings subject to this part.

(a) Availability. The parties shall have the opportunity to submit a proposed settlement of some or all issues to the Commission or presiding officer, as appropriate, or submit a request for alternative dispute resolution under paragraph (b) of this section.

(b) Settlement judge; alternative dispute resolution. (1) The presiding officer, upon joint motion of the parties, may request the Chief Administrative Judge to appoint a Settlement Judge to conduct settlement negotiations or remit the proceeding to alternative dispute resolution as the Commission may provide or to which the parties may agree. The order appointing the Settlement Judge may confine the scope of settlement negotiations to specified issues. The order must direct the Settlement Judge to report to the Chief Administrative Judge at specified time periods.

(2) If a Settlement Judge is appointed, the Settlement Judge shall:

(i) Convene and preside over conferences and settlement negotiations between the parties and assess the practicalities of a potential settlement;

(ii) Report to the Chief Administrative Judge describing the status of the settlement negotiations and recommending the termination or continuation of the settlement negotiations; and

(iii) Not discuss the merits of the case with the Chief Administrative Judge or any other person, or appear as a witness in the case.

(3) Settlement negotiations conducted by the Settlement Judge terminate upon the order of the Chief Administrative Judge issued after consultation with the Settlement Judge.

(4) No decision concerning the appointment of a Settlement Judge or the termination of the settlement negotiation is subject to review by, appeal to, or rehearing by the presiding officer or the Commission.

(c) Availability of parties' attorneys or representatives. The presiding officer (or Settlement Judge) may require that the attorney or other representative who is expected to try the case for each party be present and that the parties, or agents having full settlement authority, also be present or available by telephone.

(d) Admissibility in subsequent hearing. No evidence, statements, or conduct in settlement negotiations under this section will be admissible in any subsequent hearing, except by stipulation of the parties. Documents disclosed may not be used in litigation unless obtained through appropriate discovery or subpoena.

(e) Imposition of additional requirements. The presiding officer (or Settlement Judge) may impose on the parties and persons having an interest in the outcome of the adjudication additional requirements as the presiding officer (or Settlement Judge) finds necessary for the fair and efficient resolution of the case.

(f) Effects of ongoing settlement negotiations. The conduct of settlement negotiations does not divest the presiding officer of jurisdiction and does not automatically stay the proceeding. A hearing must not be unduly delayed because of the conduct of settlement negotiations.

(g) Form. A settlement must be in the form of a proposed settlement agreement, a consent order, and a motion for its entry that includes the reasons why it should be accepted. It must be signed by the consenting parties or their authorized representatives.

(h) Content of settlement agreement. The proposed settlement agreement must contain the following:

(1) An admission of all jurisdictional facts;

(2) An express waiver of further procedural steps before the presiding officer, of any right to challenge or contest the validity of the order entered into in accordance with the agreement, and of all rights to seek judicial review or otherwise to contest the validity of the consent order;Start Printed Page 2250

(3) A statement that the order has the same force and effect as an order made after full hearing; and

(4) A statement that matters identified in the agreement, required to be adjudicated have been resolved by the proposed settlement agreement and consent order.

(i) Approval of settlement agreement. Following issuance of a notice of hearing, a settlement must be approved by the presiding officer or the Commission as appropriate in order to be binding in the proceeding. The presiding officer or Commission may order the adjudication of the issues that the presiding officer or Commission finds is required in the public interest to dispose of the proceeding. In an enforcement proceeding under subpart B of this part, the presiding officer shall accord due weight to the position of the NRC staff when reviewing the settlement. If approved, the terms of the settlement or compromise must be embodied in a decision or order. Settlements approved by a presiding officer are subject to the Commission's review in accordance with § 2.341.

Expedited decisionmaking procedure.

(a) The presiding officer may determine a proceeding by an order after the conclusion of a hearing without issuing an initial decision, when:

(1) All parties stipulate that the initial decision may be omitted and waive their rights to file a petition for review, to request oral argument, and to seek judicial review;

(2) No unresolved substantial issue of fact, law, or discretion remains, and the record clearly warrants granting the relief requested; and

(3) The presiding officer finds that dispensing with the issuance of the initial decision is in the public interest.

(b) An order entered under paragraph (a) of this section is subject to review by the Commission on its own motion within forty (40) days after its date.

(c) An initial decision may be made effective immediately, subject to review by the Commission on its own motion within thirty (30) days after its date, except as otherwise provided in this chapter, when:

(1) All parties stipulate that the initial decision may be made effective immediately and waive their rights to file a petition for review, to request oral argument, and to seek judicial review;

(2) No unresolved substantial issue of fact, law, or discretion remains and the record clearly warrants granting the relief requested; and

(3) The presiding officer finds that it is in the public interest to make the initial decision effective immediately.

(d) The provisions of this section do not apply to an initial decision directing the issuance or amendment of a construction permit or construction authorization, or the issuance of an operating license or provisional operating authorization.

Initial decision in contested proceedings on applications for facility operating licenses; immediate effectiveness of initial decision directing issuance or amendment of construction permit or operating license.

(a) Production or utilization facility operating license. In any initial decision in a contested proceeding on an application for an operating 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 to the proceeding and on matters which have been determined to be the issues in the proceeding by the Commission or the presiding officer. Matters not put into controversy by the parties will be examined and decided by the presiding officer only where he or she determines that a serious safety, environmental, or common defense and security matter exists, and the Commission approves such examination and decision upon referral of the question by the presiding officer. Depending on the resolution of those matters, the Director of Nuclear Reactor Regulation or Director of Nuclear Material Safety and Safeguards, as appropriate, after making the requisite findings, will issue, deny or appropriately condition the license.

(b) Immediate effectiveness of certain decisions. Except as provided in paragraphs (d) through (g) of this section, or as otherwise ordered by the Commission in special circumstances, an initial decision directing the issuance or amendment of a construction permit, a construction authorization, an operating license or a license under 10 CFR Part 72 to store spent fuel in an independent spent fuel storage installation (ISFSI) at a reactor site is effective immediately 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, subject to review thereof and further decision by the Commission upon petition for review filed by any party under § 2.341 or upon its own motion.

(c) Issuance of license after initial decision. Except as provided in paragraphs (d) through (g) of this section, or as otherwise ordered by the Commission in special circumstances, the Director of Nuclear Reactor Regulation or Director of Nuclear Material Safety and Safeguards, as appropriate, notwithstanding the filing or granting of a petition for review, shall issue a construction permit, a construction authorization, an operating license, or a license under 10 CFR part 72 to store spent fuel in an independent spent fuel storage installation at a reactor site, or amendments thereto, authorized by an initial decision, within ten (10) days from the date of issuance of the decision.

(d) Immediate effectiveness of initial decisions on a ISFSI and MRS. An initial decision directing the issuance of an initial license for the construction and operation of an independent spent fuel storage installation (ISFSI) located at a site other than a reactor site or a monitored retrievable storage installation (MRS) under 10 CFR Part 72 becomes effective only upon order of the Commission. The Director of Nuclear Material Safety and Safeguards may not issue an initial license for the construction and operation of an independent spent fuel storage installation (ISFSI) located at a site other than a reactor site or a monitored retrievable storage installation (MRS) under 10 CFR part 72 until expressly authorized to do so by the Commission.

(e) [Reserved].

(f) Nuclear power reactor construction permits—(1) Presiding officers. Presiding officers shall hear and decide all issues that come before them, indicating in their decisions the type of licensing action, if any, which their decision would authorize. The presiding officer's decisions concerning construction permits are not effective until the Commission actions outlined in paragraph (f)(2) of this section have taken place.

(2) Commission. Within sixty (60) days of the service of any presiding officer decision that would otherwise authorize issuance of a construction permit, the Commission will seek to issue a decision on any stay motions that are timely filed. These motions must be filed as provided by § 2.341. For the purpose of this paragraph, a stay motion is one that seeks to defer the effectiveness of a presiding officer decision beyond the period necessary for the Commission action described herein. If no stay papers are filed, the Commission will, within the same time period (or earlier if possible), analyze the record and construction permit decision below on its own motion and will seek to issue a decision on whether a stay is warranted. However, the Start Printed Page 2251Commission will not decide that a stay is warranted without giving the affected parties an opportunity to be heard. The initial decision will be considered stayed pending the Commission's decision. In deciding these stay questions, the Commission shall employ the procedures set out in § 2.342.

(g) Nuclear power reactor operating licenses—(1) Presiding officers. Presiding officers shall hear and decide all issues that come before them, indicating in their decisions the type of licensing action, if any, which their decision would authorize. A presiding officer's decision authorizing issuance of an operating license may not become effective if it authorizes operating at greater than five (5) percent of rated power until the Commission actions outlined in paragraph (g)(2) of this section have taken place. If a decision authorizes operation up to five (5) percent, the decision is effective and the Director shall issue the appropriate license in accordance with paragraph (c) of this section.

(2) The Commission. (i) Reserving the power to step in at an earlier time, the Commission will, upon receipt of the presiding officer's decision authorizing issuance of an operating license, other than a decision authorizing only fuel loading and low power (up to five (5) percent of rated power) testing, review the matter on its own motion to determine whether to stay the effectiveness of the decision. An operating license decision will be stayed by the Commission, insofar as it authorizes other than fuel loading and low power testing, if it determines that it is in the public interest to do so, based on a consideration of the gravity of the substantive issue, the likelihood that it has been resolved incorrectly below, the degree to which correct resolution of the issue would be prejudiced by operation pending review, and other relevant public interest factors.

(ii) For operating license decisions other than those authorizing only fuel loading and low power testing consistent with the target schedule set forth below, the parties may file brief comments with the Commission pointing out matters which, in their view, pertain to the immediate effectiveness issue. To be considered, these comments must be received within ten (10) days of the presiding officer's decision. However, the Commission may dispense with comments by so advising the parties. An extensive stay will not be issued without giving the affected parties an opportunity to be heard.

(iii) The Commission intends to issue a stay decision within thirty (30) days of receipt of the presiding officer's decision. The presiding officer's initial decision will be considered stayed pending the Commission's decision insofar as it may authorize operations other than fuel loading and low power (up to five (5) percent of rated power) testing.

(iv) In announcing a stay decision, the Commission may allow the proceeding to run its ordinary course or give instructions as to the future handling of the proceeding. Furthermore, the Commission may, in a particular case, determine that compliance with existing regulations and policies may no longer be sufficient to warrant approval of a license application and may alter those regulations and policies.

(h) Lack of prejudice of Commission effectiveness decision. The Commission's effectiveness determination is entirely without prejudice to proceedings under §§ 2.341 or 2.342.

Review of decisions and actions of a presiding officer.

(a)(1) Except for requests for review or appeals of actions under § 2.311 or in a proceeding on the high-level radioactive waste repository (which are governed by § 2.1015), review of decisions and actions of a presiding officer are treated under this section.

(2) Within forty (40) days after the date of a decision or action by a presiding officer, or within forty (40) 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 fifteen (15) days after service of a full or partial initial decision by a presiding officer, and within fifteen (15) days 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.

(2) A petition for review under this paragraph may not be longer than twenty-five (25) pages, and must contain the following:

(i) A concise summary of the decision or action of which review is sought;

(ii) A statement (including record citation) where the matters of fact or law raised in the petition for review were previously raised before the presiding officer and, if they were not, why they could not have been raised;

(iii) A concise statement why in the petitioner's view the decision or action is erroneous; and

(iv) A concise statement why Commission review should be exercised.

(3) Any other party to the proceeding may, within ten (10) days after service of a petition for review, file an answer supporting or opposing Commission review. This answer may not be longer than twenty-five (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 five (5) days of service of any answer. This reply brief may not be longer than five (5) pages.

(4) The petition for review may be granted in the discretion of the Commission, giving due weight to the existence of a substantial question with respect to the following considerations:

(i) A finding of material fact is clearly erroneous or in conflict with a finding as to the same fact in a different proceeding;

(ii) A necessary legal conclusion is without governing precedent or is a departure from or contrary to established law;

(iii) A substantial and important question of law, policy, or discretion has been raised;

(iv) The conduct of the proceeding involved a prejudicial procedural error; or

(v) Any other consideration which the Commission may deem to be in the public interest.

(5) A petition for review will not be granted to the extent that it relies on matters that could have been but were not raised before the presiding officer. A matter raised sua sponte by a presiding officer has been raised before the presiding officer for the purpose of this section.

(6) A petition for review will not be granted as to issues raised before the presiding officer on a pending motion for reconsideration.

(c) (1) If a petition for review is granted, the Commission will 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.

(2) Unless the Commission orders otherwise, any briefs on review may not exceed thirty (30) pages in length, Start Printed Page 2252exclusive of pages containing the table of contents, table of citations, and any addendum containing appropriate exhibits, statutes, or regulations. A brief in excess of ten (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.

(d) Petitions for reconsideration of Commission decisions granting or denying review in whole or in part will not be entertained. A petition for reconsideration of a Commission decision after review may be filed within ten (10) days, but is not necessary for exhaustion of administrative remedies. However, if a petition for reconsideration is filed, the Commission decision is not final until the petition is decided. Any petition for reconsideration will be evaluated against the standard in § 2.323(e).

(e) Neither the filing nor the granting of a petition under this section stays the effect of the decision or action of the presiding officer, unless the Commission orders otherwise.

(f) Interlocutory review. (1) A question certified to the Commission under § 2.319(l), or a ruling referred or issue certified to the Commission under § 2.323(f), will be reviewed if the certification or referral raises significant and novel legal or policy issues, and resolution of the issues would materially advance the orderly disposition of the proceeding.

(2) The Commission may, in its discretion, grant interlocutory review at the request of a party despite the absence of a referral or certification by the presiding officer. A petition and answer to it must be filed within the times and in the form prescribed in paragraph (b) of this section and must be treated in accordance with the general provisions of this section. The petition for interlocutory review will be granted only if the party demonstrates that the issue for which the party seeks interlocutory review:

(i) Threatens the party adversely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be alleviated through a petition for review of the presiding officer's final decision; or

(ii) Affects the basic structure of the proceeding in a pervasive or unusual manner.

Stays of decisions.

(a) Within ten (10) days after service of a decision or action of a presiding officer, any party to the proceeding may file an application for a stay of the effectiveness of the decision or action pending filing of and a decision on a petition for review. This application may be filed with the Commission or the presiding officer, but not both at the same time.

(b) An application for a stay may be no longer than ten (10) pages, exclusive of affidavits, and must contain the following:

(1) A concise summary of the decision or action which is requested to be stayed;

(2) A concise statement of the grounds for stay, with reference to the factors specified in paragraph (e) of this section; and

(3) To the extent that an application for a stay relies on facts subject to dispute, appropriate references to the record or affidavits by knowledgeable persons.

(c) Service of an application for a stay on the other parties must be by the same method, e.g., electronic or facsimile transmission, mail, as the method for filing the application with the Commission or the presiding officer.

(d) Within ten (10) days after service of an application for a stay under this section, any party may file an answer supporting or opposing the granting of a stay. This answer may not be longer than ten (10) pages, exclusive of affidavits, and should concisely address the matters in paragraph (b) of this section to the extent appropriate. Further replies to answers will not be entertained. Filing of and service of an answer on the other parties must be by the same method, e.g., electronic or facsimile transmission, mail, as the method for filing the application for the stay.

(e) In determining whether to grant or deny an application for a stay, the Commission or presiding officer will consider:

(1) Whether the moving party has made a strong showing that it is likely to prevail on the merits;

(2) Whether the party will be irreparably injured unless a stay is granted;

(3) Whether the granting of a stay would harm other parties; and

(4) Where the public interest lies.

(f) In extraordinary cases, where prompt application is made under this section, the Commission or presiding officer may grant a temporary stay to preserve the status quo without waiting for filing of any answer. The application may be made orally provided the application is promptly confirmed by electronic or facsimile transmission message. Any party applying under this paragraph shall make all reasonable efforts to inform the other parties of the application, orally if made orally.

Oral argument.

In its discretion, the Commission may allow oral argument upon the request of a party made in a petition for review, brief on review, or upon its own initiative.

Final decision.

(a) The Commission will ordinarily consider the whole record on review, but may limit the issues to be reviewed to those identified in an order taking review.

(b) The Commission may adopt, modify, or set aside the findings, conclusions and order in the initial decision, and will state the basis of its action. The final decision will be in writing and will include:

(1) A statement of findings and conclusions, with the basis for them on all material issues of fact, law or discretion presented;

(2) All facts officially noticed;

(3) The ruling on each material issue; and

(4) The appropriate ruling, order, or denial of relief, with the effective date.

Petition for reconsideration.

(a)(1) Any petition for reconsideration of a final decision must be filed by a party within ten (10) days after the date of the decision.

(2) Petitions for reconsideration of Commission decisions are subject to the requirements in § 2.341(d).

(b) A petition for reconsideration must demonstrate a compelling circumstance, such as the existence of a clear and material error in a decision, which could not have been reasonably anticipated, which renders the decision invalid. The petition must state the relief sought. Within ten (10) days after a petition for reconsideration has been served, any other party may file an answer in opposition to or in support of the petition.

(c) Neither the filing nor the granting of the petition stays the decision unless the Commission orders otherwise.

Authority of the Secretary.

When briefs, motions or other papers are submitted to the Commission itself, as opposed to the officers who have been delegated authority to act for the Commission, the Secretary or the Assistant Secretary is authorized to:

(a) Prescribe procedures for the filing of briefs, motions, or other pleadings, when the schedules differ from those prescribed by the rules of this part or when the rules of this part do not prescribe a schedule;

(b) Rule on motions for extensions of time;

(c) Reject motions, briefs, pleadings, and other documents filed with the Start Printed Page 2253Commission later then the time prescribed by the Secretary or the Assistant Secretary or established by an order, rule or regulation of the Commission unless good cause is shown for the late filing;

(d) Prescribe all procedural arrangements relating to any oral argument to be held before the Commission;

(e) Extend the time for the Commission to rule on a petition for review under §§ 2.311 and 2.341;

(f) Extend the time for the Commission to grant review on its own motion under § 2.341;

(g) Direct pleadings improperly filed before the Commission to the appropriate presiding officer for action;

(h) Deny a request for hearings, where the request fails to comply with the Commission's pleading requirements set forth in this part, and fails to set forth an arguable basis for further proceedings;

(i) Refer to the Atomic Safety and Licensing Board Panel or an Administrative Judge, as appropriate requests for hearing not falling under § 2.104, where the requestor is entitled to further proceedings; and

(j) Take action on minor procedural matters.

Ex parte communications.

In any proceeding under this subpart—

(a) Interested persons outside the agency may not make or knowingly cause to be made to any Commission adjudicatory employee, any ex parte communication relevant to the merits of the proceeding.

(b) Commission adjudicatory employees may not request or entertain from any interested person outside the agency or make or knowingly cause to be made to any interested person outside the agency, any ex parte communication relevant to the merits of the proceeding.

(c) Any Commission adjudicatory employee who receives, makes, or knowingly causes to be made a communication prohibited by this section shall ensure that it, and any responses to the communication, are promptly served on the parties and placed in the public record of the proceeding. In the case of oral communications, a written summary must be served and placed in the public record of the proceeding.

(d) Upon receipt of a communication knowingly made or knowingly caused to be made by a party in violation of this section, the Commission or other adjudicatory employee presiding in a proceeding may, to the extent consistent with the interests of justice and the policy of the underlying statutes, require the party to show cause why its claim or interest in the proceeding should not be dismissed, denied, disregarded, or otherwise adversely affected on account of the violation.

(e) (1) The prohibitions of this section apply—

(i) When a notice of hearing or other comparable order is issued in accordance with §§ 2.104(a), 2.105(e)(2), 2.202(c), 2.204, 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 §§ 2.104(a), 2.105(e)(2), 2.202(c), 2.204, 2.205(e), or 2.312.

(2) The prohibitions of this section cease to apply to ex parte communications relevant to the merits of a full or partial initial decision when, in accordance with § 2.341, the time has expired for Commission review of the decision.

(f) The prohibitions in this section do not apply to—

(1) Requests for and the provision of status reports;

(2) Communications specifically permitted by statute or regulation;

(3) Communications made to or by Commission adjudicatory employees in the Office of the General Counsel regarding matters pending before a court or another agency; and

(4) Communications regarding generic issues involving public health and safety or other statutory responsibilities of the agency (e.g., rulemakings, congressional hearings on legislation, budgetary planning) not associated with the resolution of any proceeding under this subpart pending before the NRC.

Separation of functions.

(a) In any proceeding under this subpart, any NRC officer or employee engaged in the performance of any investigative or litigating function in that proceeding or in a factually related proceeding may not participate in or advise a Commission adjudicatory employee about the initial or final decision on any disputed issue in that proceeding, except—

(1) As witness or counsel in the proceeding;

(2) Through a written communication served on all parties and made on-the-record of the proceeding; or

(3) Through an oral communication made both with reasonable prior notice to all parties and with reasonable opportunity for all parties to respond.

(b) The prohibition in paragraph (a) of this section does not apply to—

(1) Communications to or from any Commission adjudicatory employee regarding—

(i) The status of a proceeding;

(ii) Matters for which the communications are specifically permitted by statute or regulation;

(iii) NRC participation in matters pending before a court or another agency; or

(iv) Generic issues involving public health and safety or other statutory responsibilities of the NRC (e.g., rulemakings, congressional hearings on legislation, budgetary planning) not associated with the resolution of any proceeding under this subpart pending before the NRC.

(2) Communications to or from Commissioners, members of their personal staffs, Commission adjudicatory employees in the Office of the General Counsel, and the Secretary and employees of the Office of the Secretary, regarding—

(i) Initiation or direction of an investigation or initiation of an enforcement proceeding;

(ii) Supervision of NRC staff to ensure compliance with the general policies and procedures of the agency;

(iii) NRC staff priorities and schedules or the allocation of agency resources; or

(iv) General regulatory, scientific, or engineering principles that are useful for an understanding of the issues in a proceeding and are not contested in the proceeding.

(3) None of the communications permitted by paragraph (b)(2) (i) through (iii) of this section is to be associated by the Commission adjudicatory employee or the NRC officer or employee performing investigative or litigating functions with the resolution of any proceeding under this subpart pending before the NRC.

(c) Any Commission adjudicatory employee who receives a communication prohibited under paragraph (a) of this section shall ensure that it, and any responses to the communication, are placed in the public record of the proceeding and served on the parties. In the case of oral communications, a written summary must be served and placed in the public record of the proceeding.

(d)(1) The prohibitions in this section apply—

(i) When a notice of hearing or other comparable order is issued in accordance with §§ 2.104(a), 2.105(e)(2), 2.202(c), 2.204, 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 Start Printed Page 2254Commission adjudicatory employee has knowledge that a notice of hearing or other comparable order will be issued in accordance with §§ 2.104(a), 2.105(e)(2), 2.202(c), 2.204, 2.205(e), or 2.312.

(2) The prohibitions of this section cease to apply to the disputed issues pertinent to a full or partial initial decision when the time has expired for Commission review of the decision in accordance with § 2.341.

(e) Communications to, from, and between Commission adjudicatory employees not prohibited by this section may not serve as a conduit for a communication that otherwise would be prohibited by this section or for an ex parte communication that otherwise would be prohibited by § 2.347.

(f) If an initial or final decision is stated to rest in whole or in part on fact or opinion obtained as a result of a communication authorized by this section, the substance of the communication must be specified in the record of the proceeding and every party must be afforded an opportunity to controvert the fact or opinion. If the parties have not had an opportunity to controvert the fact or opinion before the decision is filed, a party may controvert the fact or opinion by filing a petition for review of an initial decision, or a petition for reconsideration of a final decision that clearly and concisely sets forth the information or argument relied on to show the contrary. If appropriate, a party may be afforded the opportunity for cross-examination or to present rebuttal evidence.

Public inspections, exemptions, requests for withholding.

(a) Subject to the provisions of paragraphs (b), (d), (e), and (f) of this section, final NRC records and documents,[1] including but not limited to correspondence to and from the NRC regarding the issuance, denial, amendment, transfer, renewal, modification, suspension, revocation, or violation of a license, permit, or order, or regarding a rulemaking proceeding subject to this part shall not, in the absence of an NRC determination of a compelling reason for nondisclosure after a balancing of the interests of the person or agency urging nondisclosure and the public interest in disclosure, be exempt from disclosure and will be made available for inspection and copying at the NRC Web site, http://www.nrc.gov, and/or at the NRC Public Document Room, except for matters that are:

(1)(i) Specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy; and

(ii) Are in fact properly classified under that Executive order;

(2) Related solely to the internal personnel rules and practices of the Commission;

(3) Specifically exempted from disclosure by statute (other than 5 U.S.C. 552(b)), but only if that statute requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or establishes particular criteria for withholding or refers to particular types or matters to be withheld.

(4) Trade secrets and commercial or financial information obtained from a person and privileged or confidential;

(5) Interagency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the Commission;

(6) Personnel and medical files and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;

(7) Records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information:

(i) Could reasonably be expected to interfere with enforcement proceedings;

(ii) Would deprive a person of a right to a fair trial or an impartial adjudication;

(iii) Could reasonably be expected to constitute an unwarranted invasion of personal privacy;

(iv) Could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority, or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source;

(v) Would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law; or

(vi) Could reasonably be expected to endanger the life or physical safety of any individual;

(8) Contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or

(9) Geological and geophysical information and data, including maps, concerning wells.

(b) The procedures in this section must be followed by anyone submitting a document to the NRC who seeks to have the document, or a portion of it, withheld from public disclosure because it contains trade secrets, privileged, or confidential commercial or financial information.

(1) The submitter shall request withholding at the time the document is submitted and shall comply with the document marking and affidavit requirements set forth in this paragraph. The NRC has no obligation to review documents not so marked to determine whether they contain information eligible for withholding under paragraph (a) of this section. Any documents not so marked may be made available to the public at the NRC Web site, http://www.nrc.gov or at the NRC Public Document Room.

(i) The submitter shall ensure that the document containing information sought to be withheld is marked as follows:

(A) The top of the first page of the document and the top of each page containing such information must be marked with language substantially similar to: “confidential information submitted under 10 CFR 2.390”; “withhold from public disclosure under 10 CFR 2.390”; or “proprietary” to indicate it contains information the submitter seeks to have withheld.

(B) Each document, or page, as appropriate, containing information sought to be withheld from public disclosure must indicate, adjacent to the information, or at the top if the entire page is affected, the basis (i.e., trade secret, personal privacy, etc.) for proposing that the information be withheld from public disclosure under paragraph (a) of this section.

(ii) The Commission may waive the affidavit requirements on request, or on its own initiative, in circumstances the Commission, in its discretion, deems appropriate. Otherwise, except for personal privacy information, which is not subject to the affidavit requirement, the request for withholding must be accompanied by an affidavit that—

(A) Identifies the document or part sought to be withheld;

(B) Identifies the official position of the person making the affidavit;

(C) Declares the basis for proposing the information be withheld, encompassing considerations set forth in § 2.390(a); Start Printed Page 2255

(D) Includes a specific statement of the harm that would result if the information sought to be withheld is disclosed to the public; and

(E) Indicates the location(s) in the document of all information sought to be withheld.

(iii) In addition, an affidavit accompanying a withholding request based on paragraph (a)(4) of this section must contain a full statement of the reason for claiming the information should be withheld from public disclosure. Such statement shall address with specificity the considerations listed in paragraph (b)(4) of this section. In the case of an affidavit submitted by a company, the affidavit shall be executed by an officer or upper-level management official who has been specifically delegated the function of reviewing the information sought to be withheld and authorized to apply for its withholding on behalf of the company. The affidavit shall be executed by the owner of the information, even though the information sought to be withheld is submitted to the Commission by another person. The application and affidavit shall be submitted at the time of filing the information sought to be withheld. The information sought to be withheld shall be incorporated, as far as possible, into a separate paper. The affiant must designate with appropriate markings information submitted in the affidavit as a trade secret, or confidential or privileged commercial or financial information within the meaning of § 9.17(a)(4) of this chapter, and such information shall be subject to disclosure only in accordance with the provisions of § 9.19 of this chapter.

(2) A person who submits commercial or financial information believed to be privileged or confidential or a trade secret shall be on notice that it is the policy of the Commission to achieve an effective balance between legitimate concerns for protection of competitive positions and the right of the public to be fully apprised as to the basis for and effects of licensing or rulemaking actions, and that it is within the discretion of the Commission to withhold such information from public disclosure.

(3) The Commission shall determine whether information sought to be withheld from public disclosure under this paragraph:

(i) Is a trade secret or confidential or privileged commercial or financial information; and (ii) If so, should be withheld from public disclosure.

(4) In making the determination required by paragraph (b)(3)(i) of this section, the Commission will consider:

(i) Whether the information has been held in confidence by its owner;

(ii) Whether the information is of a type customarily held in confidence by its owner and, except for voluntarily submitted information, whether there is a rational basis therefor;

(iii) Whether the information was transmitted to and received by the Commission in confidence;

(iv) Whether the information is available in public sources;

(v) Whether public disclosure of the information sought to be withheld is likely to cause substantial harm to the competitive position of the owner of the information, taking into account the value of the information to the owner; the amount of effort or money, if any, expended by the owner in developing the information; and the ease or difficulty with which the information could be properly acquired or duplicated by others.

(5) If the Commission determines, under paragraph (b)(4) of this section, that the record or document contains trade secrets or privileged or confidential commercial or financial information, the Commission will then determine whether the right of the public to be fully apprised as to the bases for and effects of the proposed action outweighs the demonstrated concern for protection of a competitive position, and whether the information should be withheld from public disclosure under this paragraph. If the record or document for which withholding is sought is deemed by the Commission to be irrelevant or unnecessary to the performance of its functions, it will be returned to the applicant.

(6) Withholding from public inspection does not affect the right, if any, of persons properly and directly concerned to inspect the document. Either before a decision of the Commission on the matter of whether the information should be made publicly available or after a decision has been made that the information should be withheld from public disclosure, the Commission may require information claimed to be a trade secret or privileged or confidential commercial or financial information to be subject to inspection under a protective agreement by contractor personnel or government officials other than NRC officials, by the presiding officer in a proceeding, and under protective order by the parties to a proceeding. In camera sessions of hearings may be held when the information sought to be withheld is produced or offered in evidence. If the Commission subsequently determines that the information should be disclosed, the information and the transcript of such in camera session will be made publicly available.

(c) The Commission either may grant or deny a request for withholding under this section.

(1) If the request is granted, the Commission will notify the submitter of its determination to withhold the information from public disclosure.

(2) If the Commission denies a request for withholding under this section, it will provide the submitter with a statement of reasons for that determination. This decision will specify the date, which will be a reasonable time thereafter, when the document will be available at the NRC Web site, http://www.nrc.gov. The document will not be returned to the submitter.

(3) Whenever a submitter desires to withdraw a document from Commission consideration, it may request return of the document, and the document will be returned unless the information—

(i) Forms part of the basis of an official agency decision, including but not limited to, a rulemaking proceeding or licensing activity;

(ii) Is contained in a document that was made available to or prepared for an NRC advisory committee;

(iii) Was revealed, or relied upon, in an open Commission meeting held in accordance with 10 CFR part 9, subpart C;

(iv) Has been requested in a Freedom of Information Act request; or

(v) Has been obtained during the course of an investigation conducted by the NRC Office of Investigations.

(d) The following information is considered commercial or financial information within the meaning of § 9.17(a)(4) of this chapter and is subject to disclosure only in accordance with the provisions of § 9.19 of this chapter.

(1) Correspondence and reports to or from the NRC which contain information or records concerning a licensee's or applicant's physical protection, classified matter protection, or material control and accounting program for special nuclear material not otherwise designated as Safeguards Information or classified as National Security Information or Restricted Data.

(2) Information submitted in confidence to the Commission by a foreign source.

(e) Submitting information to NRC for consideration in connection with NRC licensing or regulatory activities shall be deemed to constitute authority for the NRC to reproduce and distribute sufficient copies to carry out the Commission's official responsibilities. Start Printed Page 2256

(f) The presiding officer, if any, or the Commission may, with reference to the NRC records and documents made available pursuant to this section, issue orders consistent with the provisions of this section and § 2.705(c).

Start Amendment Part

19. In § 2.402, paragraph (b) is revised to read as follows:

End Amendment Part
Separate hearings on separate issues; consolidation of proceedings.
* * * * *

(b) If a separate hearing is held on a particular phase of the proceeding, the Commission or presiding officers of each affected proceeding may, under § 2.317, consolidate for hearing on that phase two or more proceedings to consider common issues relating to the applications involved in the proceedings, if it finds that this action will be conducive to the proper dispatch of its business and to the ends of justice. In specifying the place of this consolidated hearing, due regard will be given to the convenience and necessity of the parties, petitioners for leave to intervene, or the attorneys or representatives of such persons, and the public interest.

Start Amendment Part

20. Section 2.405 is revised to read as follows:

End Amendment Part
Initial decisions in consolidated hearings.

At the conclusion of any hearing held under this subpart, the presiding officer will render a partial initial decision that may be appealed under § 2.341. No construction permit or full power operating license will be issued until an initial decision has been issued on all phases of the hearing and all issues under the Act and the National Environmental Policy Act of 1969 appropriate to the proceeding have been resolved.

Start Amendment Part

21. In § 2.604, paragraphs (b) and (c) are revised to read as follows:

End Amendment Part
Notice of hearing on application for early review of site suitability issues.
* * * * *

(b) After docketing of part two of the application, as provided in §§ 2.101(a-1) and 2.603, a supplementary notice of hearing will be published under § 2.104 with respect to the remaining unresolved issues in the proceeding within the scope of § 2.104. This supplementary notice of hearing will provide that any person whose interest may be affected by the proceeding and who desires to participate as a party in the resolution of the remaining issues shall file a petition for leave to intervene pursuant to § 2.309 within the time prescribed in the notice. This supplementary notice will also provide appropriate opportunities for participation by a representative of an interested State under § 2.315(c) and for limited appearances under § 2.315(a).

(c) Any person who was permitted to intervene as a party under the initial notice of hearing on site suitability issues and who was not dismissed or did not withdraw as a party may continue to participate as a party to the proceeding with respect to the remaining unresolved issues, provided that within the time prescribed for filing of petitions for leave to intervene in the supplementary notice of hearing, he or she files a notice of his intent to continue as a party, along with a supporting affidavit identifying the specific aspect or aspects of the subject matter of the proceeding as to which he or she wishes to continue to participate as a party and setting forth with particularity the basis for his contentions with regard to each aspect or aspects. A party who files a non-timely notice of intent to continue as a party may be dismissed from the proceeding, absent a determination that the party has made a substantial showing of good cause for failure to file on time, and with particular reference to the factors specified in §§ 2.309(c)(1)(i) through (iv) and 2.309(d). The notice will be ruled upon by the Commission or presiding officer designated to rule on petitions for leave to intervene.

* * * * *
Start Amendment Part

22. In § 2.606, paragraph (a) is revised to read as follows:

End Amendment Part
Partial decisions on site suitability issues.

(a) The provisions of §§ 2.331, 2.339, 2.340(b), 2.343, 2.712, and 2.713 shall apply to any partial initial decision rendered in accordance with this subpart. Section 2.340(c) shall not apply to any partial initial decision rendered in accordance with this subpart. A limited work authorization may not be issued under 10 CFR 50.10(e) and no construction permit may be issued without completion of the full review required by section 102(2) of the National Environmental Policy Act of 1969, as amended, and subpart A of part 51 of this chapter. The authority of the Commission to review such a partial initial decision sua sponte, or to raise sua sponte an issue that has not been raised by the parties, will be exercised within the same time period as in the case of a full decision relating to the issuance of a construction permit.

* * * * *
Start Amendment Part

23. Subpart G is revised to read as follows:

End Amendment Part
Subpart G—Rules for Formal Adjudications
2.700
Scope of subpart G.
2.701
Exceptions.
2.702
Subpoenas.
2.703
Examination by experts.
2.704
Discovery—required disclosures.
2.705
Discovery—additional methods.
2.706
Depositions upon oral examination and written interrogatories; interrogatories to parties.
2.707
Production of documents and things; entry upon land for inspection and other purposes.
2.708
Admissions.
2.709
Discovery against NRC staff.
2.710
Motions for summary disposition.
2.711
Evidence.
2.712
Proposed findings and conclusions.
2.713
Initial decision and its effect.
Subpart G—Rules for Formal Adjudications
Scope of subpart G.

The provisions of this subpart apply to and supplement the provisions set forth in subpart C of this part with respect to enforcement proceedings initiated under subpart B of this part unless otherwise agreed to by the parties, proceedings conducted with respect to the initial licensing of a uranium enrichment facility, proceedings for the grant, renewal, licensee-initiated amendment, or termination of licenses or permits for nuclear power reactors, where the presiding officer by order finds that resolution of the contention necessitates resolution of: issues of material fact relating to the occurrence of a past event, where the credibility of an eyewitness may reasonably be expected to be at issue, and/or issues of motive or intent of the party or eyewitness material to the resolution of the contested matter, proceedings for initial applications for construction authorization for high-level radioactive waste repository noticed under §§ 2.101(f)(8) or 2.105(a)(5), proceedings for initial applications for a license to receive and possess high-level radioactive waste at a geologic repository operations area, and any other proceeding as ordered by the Commission. If there is any conflict between the provisions of this subpart and those set forth in subpart C of this part, the provisions of this subpart control.

Exceptions.

Consistent with 5 U.S.C. 554(a)(4) of the Administrative Procedure Act, the Commission may provide alternative procedures in adjudications to the extent that there is involved the conduct of military or foreign affairs functions.

Start Printed Page 2257
Subpoenas.

(a) On application by any party, the designated presiding officer or, if he or she is not available, the Chief Administrative Judge, or other designated officer will issue subpoenas requiring the attendance and testimony of witnesses or the production of evidence. The officer to whom application is made may require a showing of general relevance of the testimony or evidence sought, and may withhold the subpoena if such a showing is not made. However, the officer may not determine the admissibility of evidence.

(b) Every subpoena will bear the name of the Commission, the name and office of the issuing officer and the title of the hearing, and will command the person to whom it is directed to attend and give testimony or produce specified documents or other things at a designated time and place. The subpoena will also advise of the quashing procedure provided in paragraph (f) of this section.

(c) Unless the service of a subpoena is acknowledged on its face by the witness or is served by an officer or employee of the Commission, it must be served by a person who is not a party to the hearing and is not less than eighteen (18) years of age. Service of a subpoena must be made by delivery of a copy of the subpoena to the person named in it and tendering that person the fees for one day's attendance and the mileage allowed by law. When the subpoena is issued on behalf of the Commission, fees and mileage need not be tendered and the subpoena may be served by registered mail.

(d) Witnesses summoned by subpoena must be paid the fees and mileage paid to witnesses in the district courts of the United States by the party at whose instance they appear.

(e) The person serving the subpoena shall make proof of service by filing the subpoena and affidavit or acknowledgment of service with the officer before whom the witness is required to testify or produce evidence or with the Secretary. Failure to make proof of service does not affect the validity of the service.

(f) On motion made promptly, and in any event at or before the time specified in the subpoena for compliance by the person to whom the subpoena is directed, and on notice to the party at whose instance the subpoena was issued, the presiding officer or, if he is unavailable, the Commission may:

(1) Quash or modify the subpoena if it is unreasonable or requires evidence not relevant to any matter in issue, or

(2) Condition denial of the motion on just and reasonable terms.

(g) On application and for good cause shown, the Commission will seek judicial enforcement of a subpoena issued to a party and which has not been quashed.

(h) The provisions of paragraphs (a) through (g) of this section are not applicable to the attendance and testimony of the Commissioners or NRC personnel, or to the production of records or documents in their custody.

Examination by experts.

(a) A party may request the presiding officer to permit a qualified individual who has scientific or technical training or experience to participate on behalf of that party in the examination and cross-examination of expert witnesses. The presiding officer may permit the individual to participate on behalf of the party in the examination and cross-examination of expert witnesses, upon finding:

(1) That cross-examination by that individual would serve the purpose of furthering the conduct of the proceeding;

(2) That the individual is qualified by scientific or technical training or experience to contribute to the development of an adequate decisional record in the proceeding by the conduct of such examination or cross-examination;

(3) That the individual has read any written testimony on which he intends to examine or cross-examine and any documents to be used or referred to in the course of the examination or cross-examination; and

(4) That the individual has prepared himself to conduct a meaningful and expeditious examination or cross-examination, and has submitted a cross-examination plan in accordance with § 2.711(c).

(b) Examination or cross-examination conducted under this section must be limited to areas within the expertise of the individual conducting the examination or cross-examination. The party on behalf of whom this examination or cross-examination is conducted and his or her attorney is responsible for the conduct of examination or cross-examination by such individuals.

Discovery—required disclosures.

(a) Initial disclosures. Except to the extent otherwise stipulated or directed by order of the presiding officer or the Commission, a party other than the NRC staff shall, without awaiting a discovery request, provide to other parties:

(1) The name and, if known, the address and telephone number of each individual likely to have discoverable information relevant to disputed issues alleged with particularity in the pleadings, identifying the subjects of the information; and

(2) A copy of, or a description by category and location of, all documents, data compilations, and tangible things in the possession, custody, or control of the party that are relevant to disputed issues alleged with particularity in the pleadings. 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, the title and a page reference to the relevant document, data compilation, or tangible thing;

(3) Unless otherwise stipulated or directed by the presiding officer, these disclosures must be made within forty-five (45) days after the issuance of a prehearing conference order following the initial prehearing conference specified in § 2.329. A party shall 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.

(b) Disclosure of expert testimony. (1) In addition to the disclosures required by paragraph (a) of this section, a party other than the NRC staff shall disclose to other parties the identity of any person who may be used at trial to present evidence under § 2.711.

(2) Except in proceedings with pre-filed written testimony, or as otherwise stipulated or directed by the presiding officer, this disclosure must be accompanied by a written report prepared and signed by the witness, containing: A complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four (4) years.

(3) These disclosures must be made at the times and in the sequence directed by the presiding officer. In the absence Start Printed Page 2258of other directions from the presiding officer, or stipulation by the parties, the disclosures must be made at least ninety (90) days before the hearing commencement date or the date the matter is to be presented for hearing. If the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under paragraph (b)(2) of this section, the disclosures must be made within thirty (30) days after the disclosure made by the other party. The parties shall supplement these disclosures when required under paragraph (e) of this section.

(c) Pretrial disclosures. (1) In addition to the disclosures required in the preceding paragraphs, a party other than the NRC staff shall provide to other parties the following information regarding the evidence that it may present at trial other than solely for impeachment purposes:

(i) The name and, if not previously provided, the address and telephone number of each witness, separately identifying those whom the party expects to present and those whom the party may call if the need arises;

(ii) The designation of those witnesses whose testimony is expected to be presented by means of a deposition and, when available, a transcript of the pertinent portions of the deposition testimony; and

(iii) An appropriate identification of each document or other exhibit, including summaries of other evidence, separately identifying those which the party expects to offer and those which the party may offer if the need arises.

(2) Unless otherwise directed by the presiding officer or the Commission, these disclosures must be made at least thirty (30) days before commencement of the hearing at which the issue is to be presented.

(3) A party may object to the admissibility of documents identified under paragraph (c) of this section. A list of those objections must be served and filed within fourteen (14) days after service of the disclosures required by paragraphs (c)(1) and (2) of this section, unless a different time is specified by the presiding officer or the Commission. Objections not so disclosed, other than objections as to a document's admissibility under § 2.711(e), are waived unless excused by the presiding officer or Commission for good cause shown.

(d) Form of disclosures; filing. Unless otherwise directed by order of the presiding officer or the Commission, all disclosures under paragraphs (a) through (c) of this section must be made in writing, signed, served, and promptly filed with the presiding officer or the Commission.

(e) Supplementation of responses. A party who has made a disclosure under this section is under a duty to supplement or correct the disclosure to include information thereafter acquired if ordered by the presiding officer or in the following circumstances:

(1) A party is under a duty to supplement at appropriate intervals its disclosures under paragraph (a) of this section within a reasonable time after a party learns that in some material respect the information disclosed is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.

(2) With respect to testimony of an expert from whom a report is required under paragraph (b) of this section, the duty extends both to information contained in the report and to information provided through a deposition of the expert, and any additions or other changes to this information must be disclosed by the time the party's disclosures under § 2.704(c) are due.

Discovery—additional methods.

(a) Discovery methods. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written interrogatories (§ 2.706); interrogatories to parties (§ 2.706); production of documents or things or permission to enter upon land or other property, for inspection and other purposes (§ 2.707); and requests for admission (§ 2.708).

(b) Scope of discovery. Unless otherwise limited by order of the presiding officer in accordance with this section, the scope of discovery is as follows:

(1) In general. Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the proceeding, whether it relates to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. When any book, document, or other tangible thing sought is reasonably available from another source, such as at the NRC Web site, http://www.nrc.gov, and/or the NRC Public Document Room, sufficient response to an interrogatory on materials would be the location, the title and a page reference to the relevant book, document, or tangible thing. In a proceeding on an application for a construction permit or an operating license for a production or utilization facility, discovery begins only after the prehearing conference and relates only to those matters in controversy which have been identified by the Commission or the presiding officer in the prehearing order entered at the conclusion of that prehearing conference. In such a proceeding, discovery may not take place after the beginning of the prehearing conference held under § 2.329 except upon leave of the presiding officer upon good cause shown. It is not a ground for objection that the information sought will be inadmissible at the hearing if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

(2) Limitations. 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 alter the limits in these rules on the number of depositions and interrogatories, and may also limit the length of depositions under § 2.706 and the number of requests under §§ 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:

(i) The discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive;

(ii) The party seeking discovery has had ample opportunity by discovery in the proceeding to obtain the information sought; or

(iii) The burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the proceeding, the parties' resources, the importance of the issue in the proceeding, and the importance of the proposed discovery in resolving the issues.

(3) Trial preparation materials. A party may obtain discovery of documents and tangible things otherwise discoverable under paragraph (b)(1) of this section and prepared in anticipation of or for the hearing by or for another party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of this case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing Start Printed Page 2259has been made, the presiding officer shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney for a party concerning the proceeding.

(4) Claims of privilege or protection of trial preparation materials. When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection. Identification of these privileged materials must be made within the time provided for disclosure of the materials, unless otherwise extended by order of the presiding officer or the Commission.

(5) Nature of interrogatories. Interrogatories may seek to elicit factual information reasonably related to a party's position in the proceeding, including data used, assumptions made, and analyses performed by the party. Interrogatories may not be addressed to, or be construed to require:

(i) Reasons for not using alternative data, assumptions, and analyses where the alternative data, assumptions, and analyses were not relied on in developing the party's position; or

(ii) Performance of additional research or analytical work beyond that which is needed to support the party's position on any particular matter.

(c) Protective order. (1) Upon motion by a party or the person from whom discovery is sought, accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without action by the presiding officer, and for good cause shown, the presiding officer may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

(i) That the discovery not be had;

(ii) That the discovery may be had only on specified terms and conditions, including a designation of the time or place;

(iii) That the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;

(iv) That certain matters not be inquired into, or that the scope of discovery be limited to certain matters;

(v) That discovery be conducted with no one present except persons designated by the presiding officer;

(vi) That, subject to the provisions of §§ 2.709 and 2.390, a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; or

(vii) That studies and evaluations not be prepared.

(2) If the motion for a protective order is denied in whole or in part, the presiding officer may, on such terms and conditions as are just, order that any party or person provide or permit discovery.

(d) Sequence and timing of discovery. Except when authorized under these rules or by order of the presiding officer, or agreement of the parties, a party may not seek discovery from any source before the parties have met and conferred as required by paragraph (f) of this section, nor may a party seek discovery after the time limit established in the proceeding for the conclusion of discovery. Unless the presiding officer upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, does not operate to delay any other party's discovery.

(e) Supplementation of responses. A party who responded to a request for discovery with a response is under a duty to supplement or correct the response to include information thereafter acquired if ordered by the presiding officer or, with respect to a response to an interrogatory, request for production, or request for admission, within a reasonable time after a party learns that the response is in some material respect incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.

(f) Meeting of parties; planning for discovery. Except when otherwise ordered, the parties shall, as soon as practicable and in any event no more than thirty (30) days after the issuance of a prehearing conference order following the initial prehearing conference specified in § 2.329, meet to discuss the nature and basis of their claims and defenses and the possibilities for a prompt settlement or resolution of the proceeding or any portion thereof, to make or arrange for the disclosures required by § 2.704, and to develop a proposed discovery plan.

(1) The plan must indicate the parties' views and proposals concerning:

(i) What changes should be made in the timing, form, or requirement for disclosures under § 2.704, including a statement as to when disclosures under § 2.704(a)(1) were made or will be made;

(ii) The subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused upon particular issues;

(iii) What changes should be made in the limitations on discovery imposed under these rules, and what other limitations should be imposed; and

(iv) Any other orders that should be entered by the presiding officer under paragraph (c) of this section.

(2) The attorneys of record and all unrepresented parties that have appeared in the proceeding are jointly responsible for arranging and being present or represented at the meeting, for attempting in good faith to agree on the proposed discovery plan, and for submitting to the presiding officer within ten (10) days after the meeting a written report outlining the plan.

(g) Signing of disclosures, discovery requests, responses, and objections. (1) Every disclosure made in accordance with § 2.704 must be signed by at least one attorney of record in the attorney's individual name, whose address must be stated. An unrepresented party shall sign the disclosure and state the party's address. The signature of the attorney or party constitutes a certification that to the best of the signer's knowledge, information, and belief, formed after a reasonable inquiry, the disclosure is complete and correct as of the time it is made.

(2) Every discovery request, response, or objection made by a party represented by an attorney must be signed by at least one attorney of record in the attorney's individual name, whose address must be stated. An unrepresented party shall sign the request, response, or objection and state the party's address. The signature of the attorney or party constitutes a certification that to the best of the signer's knowledge, information, and belief, formed after a reasonable inquiry, the request, response, or objection is:

(i) Consistent with these rules and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law;

(ii) Not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and

(iii) Not unreasonable or unduly burdensome or expensive, given the Start Printed Page 2260needs of the case, the discovery already had in the case, the amount in controversy, and the importance of the issues at stake in the litigation.

(3) If a request, response, or objection is not signed, it must be stricken unless it is signed promptly after the omission is called to the attention of the party making the request, response, or objection, and a party shall not be obligated to take any action with respect to it until it is signed.

(4) If a certification is made in violation of the rule without substantial justification, the presiding officer, upon motion or upon its own initiative, shall impose upon the person who made the certification, the party on whose behalf the disclosure, request, response, or objection is made, or both, an appropriate sanction, which may, in appropriate circumstances, include termination of that person's right to participate in the proceeding.

(h) Motion to compel discovery. (1) If a deponent or party upon whom a request for production of documents or answers to interrogatories is served fails to respond or objects to the request, or any part thereof, or fails to permit inspection as requested, the deposing party or the party submitting the request may move the presiding officer, within ten (10) days after the date of the response or after failure of a party to respond to the request, for an order compelling a response or inspection in accordance with the request. The motion must set forth the nature of the questions or the request, the response or objection of the party upon whom the request was served, and arguments in support of the motion. The motion must be accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without action by the presiding officer. Failure to answer or respond may not be excused on the ground that the discovery sought is objectionable unless the person or party failing to answer or respond has applied for a protective order pursuant to paragraph (c) of this section. For purposes of this paragraph, an evasive or incomplete answer or response will be treated as a failure to answer or respond.

(2) In ruling on a motion made under this section, the presiding officer may issue a protective order under paragraph (c) of this section.

(3) This section does not preclude an independent request for issuance of a subpoena directed to a person not a party for production of documents and things. This section does not apply to requests for the testimony or interrogatories of the NRC staff under § 2.709(a), or the production of NRC documents under §§ 2.709(b) or § 2.390, except for paragraphs (c) and (e) of this section.

Depositions upon oral examination and written interrogatories; interrogatories to parties.

(a) Depositions upon oral examination and written interrogatories. (1) Any party desiring to take the testimony of any party or other person by deposition on oral examination or written interrogatories shall, without leave of the Commission or the presiding officer, give reasonable notice in writing to every other party, to the person to be examined and to the presiding officer of the proposed time and place of taking the deposition; the name and address of each person to be examined, if known, or if the name is not known, a general description sufficient to identify him or the class or group to which he belongs; the matters upon which each person will be examined and the name or descriptive title and address of the officer before whom the deposition is to be taken.

(2) [Reserved]

(3) Within the United States, a deposition may be taken before any officer authorized to administer oaths by the laws of the United States or of the place where the examination is held. Outside of the United States, a deposition may be taken before a secretary of an embassy or legation, a consul general, vice consul or consular agent of the United States, or a person authorized to administer oaths designated by the Commission.

(4) Before any questioning, the deponent shall either be sworn or affirm the truthfulness of his or her answers. Examination and cross-examination must proceed as at a hearing. Each question propounded must be recorded and the answer taken down in the words of the witness. Objections on questions of evidence must be noted in short form without the arguments. The officer may not decide on the competency, materiality, or relevancy of evidence but must record the evidence subject to objection. Objections on questions of evidence not made before the officer will not be considered waived unless the ground of the objection is one which might have been obviated or removed if presented at that time.

(5) When the testimony is fully transcribed, the deposition must be submitted to the deponent for examination and signature unless he or she is ill, cannot be found, or refuses to sign. The officer shall certify the deposition or, if the deposition is not signed by the deponent, shall certify the reasons for the failure to sign, and shall promptly forward the deposition by registered mail to the Commission.

(6) Where the deposition is to be taken on written interrogatories, the party taking the deposition shall serve a copy of the interrogatories, showing each interrogatory separately and consecutively numbered, on every other party with a notice stating the name and address of the person who is to answer them, and the name, description, title, and address of the officer before whom they are to be taken. Within ten (10) days after service, any other party may serve cross-interrogatories. The interrogatories, cross-interrogatories, and answers must be recorded and signed, and the deposition certified, returned, and filed as in the case of a deposition on oral examination.

(7) A deposition will not become a part of the record in the hearing unless received in evidence. If only part of a deposition is offered in evidence by a party, any other party may introduce any other parts. A party does not make a person his or her own witness for any purpose by taking his deposition.

(8) A deponent whose deposition is taken and the officer taking a deposition are entitled to the same fees as are paid for like services in the district courts of the United States. The fees must be paid by the party at whose instance the deposition is taken.

(9) The witness may be accompanied, represented, and advised by legal counsel.

(10) The provisions of paragraphs (a)(1) through (a)(9) of this section are not applicable to NRC personnel. Testimony of NRC personnel by oral examination and written interrogatories addressed to NRC personnel are subject to the provisions of § 2.709.

(b) Interrogatories to parties. (1) Any party may serve upon any other party (other than the NRC staff) written interrogatories to be answered in writing by the party served, or if the party served is a public or private corporation or a partnership or association, by any officer or agent, who shall furnish such information as is available to the party. A copy of the interrogatories, answers, and all related pleadings must be filed with the Secretary of the Commission, and must be served on the presiding officer and all parties to the proceeding.

(2) Each interrogatory must be answered separately and fully in writing under oath or affirmation, unless it is objected to, in which event the reasons for objection must be stated in lieu of an answer. The answers must be signed by the person making them, and the Start Printed Page 2261objections by the attorney making them. The party upon whom the interrogatories were served shall serve a copy of the answers and objections upon all parties to the proceeding within fourteen (14) days after service of the interrogatories, or within such shorter or longer period as the presiding officer may allow. Answers may be used in the same manner as depositions (see § 2.706(a)(7)).

Production of documents and things; entry upon land for inspections and other purposes.

(a) Request for discovery. Any party may serve on any other party a request to:

(1) Produce and permit the party making the request, or a person acting on his or her behalf, to inspect and copy any designated documents, or to inspect and copy, test, or sample any tangible things which are within the scope of § 2.704 and which are in the possession, custody, or control of the party upon whom the request is served; or

(2) Permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation on the property, within the scope of § 2.704.

(b) Service. The request may be served on any party without leave of the Commission or the presiding officer. Except as otherwise provided in § 2.704, the request may be served after the proceeding is set for hearing.

(c) Contents. The request must identify the items to be inspected either by individual item or by category, and describe each item and category with reasonable particularity. The request must specify a reasonable time, place, and manner of making the inspection and performing the related acts.

(d) Response. The party upon whom the request is served shall serve on the party submitting the request a written response within thirty (30) days after the service of the request. The response must state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, in which case the reasons for objection must be stated. If objection is made to part of an item or category, the part must be specified.

(e) NRC records and documents. The provisions of paragraphs (a) through (d) of this section do not apply to the production for inspection and copying or photographing of NRC records or documents. Production of NRC records or documents is subject to the provisions of §§ 2.709 and 2.390.

Admissions.

(a) Apart from any admissions made during or as a result of a prehearing conference, at any time after his or her answer has been filed, a party may file a written request for the admission of the genuineness and authenticity of any relevant document described in or attached to the request, or for the admission of the truth of any specified relevant matter of fact. A copy of the document for which an admission of genuineness and authenticity is requested must be delivered with the request unless a copy has already been furnished.

(b)(1) Each requested admission is considered made unless, within a time designated by the presiding officer or the Commission, and not less than ten (10) days after service of the request or such further time as may be allowed on motion, the party to whom the request is directed serves on the requesting party either:

(i) A sworn statement denying specifically the relevant matters of which an admission is requested or setting forth in detail the reasons why he can neither truthfully admit nor deny them; or

(ii) Written objections on the ground that some or all of the matters involved are privileged or irrelevant or that the request is otherwise improper in whole or in part.

(2) Answers on matters to which such objections are made may be deferred until the objections are determined. If written objections are made to only a part of a request, the remainder of the request must be answered within the time designated.

(c) Admissions obtained under the procedure in this section may be used in evidence to the same extent and subject to the same objections as other admissions.

Discovery against NRC staff.

(a)(1) In a proceeding in which the NRC staff is a party, the NRC staff will make available one or more witnesses, designated by the Executive Director for Operations or a delegee of the Executive Director for Operations, for oral examination at the hearing or on deposition regarding any matter, not privileged, that is relevant to the issues in the proceeding. The attendance and testimony of the Commissioners and named NRC personnel at a hearing or on deposition may not be required by the presiding officer, by subpoena or otherwise. However, the presiding officer may, upon a showing of exceptional circumstances, such as a case in which a particular named NRC employee has direct personal knowledge of a material fact not known to the witnesses made available by the Executive Director for Operations or a delegee of the Executive Director for Operations, require the attendance and testimony of named NRC personnel.

(2) A party may file with the presiding officer written interrogatories to be answered by NRC personnel with knowledge of the facts, as designated by the Executive Director for Operations, or a delegee of the Executive Director for Operations. Upon a finding by the presiding officer that answers to the interrogatories are necessary to a proper decision in the proceeding and that answers to the interrogatories are not reasonably obtainable from any other source, the presiding officer may require that the NRC staff answer the interrogatories.

(3) A deposition of a particular named NRC employee or answer to interrogatories by NRC personnel under paragraphs (a)(1) and (2) of this section may not be required before the matters in controversy in the proceeding have been identified by order of the Commission or the presiding officer, or after the beginning of the prehearing conference held in accordance with § 2.329, except upon leave of the presiding officer for good cause shown.

(4) The provisions of § 2.704(c) and (e) apply to interrogatories served under this paragraph.

(5) Records or documents in the custody of the Commissioners and NRC personnel are available for inspection and copying or photographing under paragraph (b) of this section and § 2.390.

(b) A request for the production of an NRC record or document not available under § 2.390 by a party to an initial licensing proceeding may be served on the Executive Director for Operations or a delegee of the Executive Director for Operations, without leave of the Commission or the presiding officer. The request must identify the records or documents requested, either by individual item or by category, describe each item or category with reasonable particularity, and state why that record or document is relevant to the proceeding.

(c) If the Executive Director for Operations, or a delegee of the Executive Director for Operations, objects to producing a requested record or document on the ground that it is not relevant or it is exempted from disclosure under § 2.390 and the disclosure is not necessary to a proper decision in the proceeding or the document or the information therein is Start Printed Page 2262reasonably obtainable from another source, the Executive Director for Operations, or a delegee of the Executive Director for Operations, shall advise the requesting party.

(d) If the Executive Director for Operations, or a delegee of the Executive Director for Operations, objects to producing a record or document, the requesting party may apply to the presiding officer, in writing, to compel production of that record or document. The application must set forth the relevancy of the record or document to the issues in the proceeding. The application will be processed as a motion in accordance with § 2.323 (a) through (d). The record or document covered by the application must be produced for the in camera inspection of the presiding officer, exclusively, if requested by the presiding officer and only to the extent necessary to determine:

(1) The relevancy of that record or document;

(2) Whether the document is exempt from disclosure under § 2.390;

(3) Whether the disclosure is necessary to a proper decision in the proceeding; and

(4) Whether the document or the information therein is reasonably obtainable from another source.

(e) Upon a determination by the presiding officer that the requesting party has demonstrated the relevancy of the record or document and that its production is not exempt from disclosure under § 2.390 or that, if exempt, its disclosure is necessary to a proper decision in the proceeding, and the document or the information therein is not reasonably obtainable from another source, the presiding officer shall order the Executive Director for Operations, or a delegee of the Executive Director for Operations, to produce the document.

(f) In the case of requested documents and records (including Safeguards Information referred to in sections 147 and 181 of the Atomic Energy Act, as amended) exempt from disclosure under § 2.390, but whose disclosure is found by the presiding officer to be necessary to a proper decision in the proceeding, any order to the Executive Director for Operations or a delegee of the Executive Director for Operations, to produce the document or records (or any other order issued ordering production of the document or records) may contain any protective terms and conditions (including affidavits of non-disclosure) as may be necessary and appropriate to limit the disclosure to parties in the proceeding, to interested States and other governmental entities participating under § 2.315(c), and to their qualified witnesses and counsel. When Safeguards Information protected from disclosure under section 147 of the Atomic Energy Act, as amended, is received and possessed by a party other than the Commission staff, it must also be protected according to the requirements of § 73.21 of this chapter. The presiding officer may also prescribe additional procedures to effectively safeguard and prevent disclosure of Safeguards Information to unauthorized persons with minimum impairment of the procedural rights which would be available if Safeguards Information were not involved. In addition to any other sanction that may be imposed by the presiding officer for violation of an order issued pursuant to this paragraph, violation of an order pertaining to the disclosure of Safeguards Information protected from disclosure under section 147 of the Atomic Energy Act, as amended, may be subject to a civil penalty imposed under § 2.205. For the purpose of imposing the criminal penalties contained in Section 223 of the Atomic Energy Act, as amended, any order issued pursuant to this paragraph with respect to Safeguards Information is considered to be an order issued under Section 161.b of the Atomic Energy Act.

(g) A ruling by the presiding officer or the Commission for the production of a record or document will specify the time, place, and manner of production.

(h) A request under this section may not be made or entertained before the matters in controversy have been identified by the Commission or the presiding officer, or after the beginning of the prehearing conference held under § 2.329 except upon leave of the presiding officer for good cause shown.

(i) The provisions of § 2.705 (c) and (e) apply to production of NRC records and documents under this section.

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 twenty (20) days after the close of discovery. The moving party shall attach to the motion a separate, 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 twenty (20) days after service of the motion. The party shall attach to any answer opposing the motion a separate, 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 ten (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 thereto will be entertained.

(b) Affidavits must set forth the facts that would be admissible in evidence, and must demonstrate affirmatively that the affiant is competent to testify to the matters stated in the affidavit. The presiding officer may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories or further affidavits. When a motion for summary decision is made and supported as provided in this section, a party opposing the motion may not rest upon the mere allegations or denials of his answer. The answer by affidavits or as otherwise provided in this section must set forth specific facts showing that there is a genuine issue of fact. If no answer is filed, the decision sought, if appropriate, must be rendered.

(c) Should it appear from the affidavits of a party opposing the motion that he or she cannot, for reasons stated, present by affidavit facts essential to justify the party's opposition, the presiding officer may refuse the application for summary decision, order a continuance to permit affidavits to be obtained, or make an order as is appropriate. A determination to that effect must be made a matter of record.

(d)(1) The presiding officer need not consider a motion for summary disposition unless its resolution will serve to expedite the proceeding if the motion is granted. The presiding officer may dismiss summarily or hold in abeyance untimely motions filed shortly before the hearing commences or during the hearing if the other parties or the presiding officer would be required to divert substantial resources from the hearing in order to respond adequately to the motion and thereby extend the proceeding.

(2) The presiding officer shall render the decision sought if the filings in the proceeding, depositions, answers to interrogatories, and admissions on file, together with the statements of the parties and the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a decision as a matter of Start Printed Page 2263law. However, in any proceeding involving a construction permit for a production or utilization facility, the procedure described in this section may be used only for the determination of specific subordinate issues and may not be used to determine the ultimate issue as to whether the permit shall be issued.

(e) The presiding officer shall issue an order no later than forty (40) days after any responses to the summary disposition motion are filed, indicating whether the motion is granted, or denied, and the bases therefore.

Evidence.

(a) General. Every party to a proceeding has the right to present oral or documentary evidence and rebuttal evidence and to conduct, in accordance with an approved cross-examination plan that contains the information specified in paragraph (c) of this section, any cross-examination required for full and true disclosure of the facts.

(b) Testimony. The parties shall submit direct testimony of witnesses in written form, unless otherwise ordered by the presiding officer on the basis of objections presented. In any proceeding in which advance written testimony is to be used, each party shall serve copies of its proposed written testimony on every other party at least fifteen (15) days in advance of the session of the hearing at which its testimony is to be presented. The presiding officer may permit the introduction of written testimony not so served, either with the consent of all parties present or after they have had a reasonable opportunity to examine it. Written testimony must be incorporated into the transcript of the record as if read or, in the discretion of the presiding officer, may be offered and admitted in evidence as an exhibit.

(c) Cross-examination. (1) The presiding officer shall require a party seeking an opportunity to cross-examine to request permission to do so in accordance with a schedule established by the presiding officer. A request to conduct cross-examination must be accompanied by a cross-examination plan containing the following information:

(i) A brief description of the issue or issues on which cross-examination will be conducted;

(ii) The objective to be achieved by cross-examination; and

(iii) The proposed line of questions that may logically lead to achieving the objective of the cross-examination.

(2) The cross-examination plan may be submitted only to the presiding officer and must be kept by the presiding officer in confidence until issuance of the initial decision on the issue being litigated. The presiding officer shall then provide each cross-examination plan to the Commission's Secretary for inclusion in the official record of the proceeding.

(d) Non-applicability to subpart B proceedings. Paragraphs (b) and (c) of this section do not apply to proceedings initiated under subpart B of this part for modification, suspension, or revocation of a license or to proceedings for imposition of a civil penalty, unless otherwise directed by the presiding officer.

(e) Admissibility. Only relevant, material, and reliable evidence which is not unduly repetitious will be admitted. Immaterial or irrelevant parts of an admissible document will be segregated and excluded so far as is practicable.

(f) Objections. An objection to evidence must briefly state the grounds of objection. The transcript must include the objection, the grounds, and the ruling. Exception to an adverse ruling is preserved without notation on-the-record.

(g) Offer of proof. An offer of proof, made in connection with an objection to a ruling of the presiding officer excluding or rejecting proffered oral testimony, must consist of a statement of the substance of the proffered evidence. If the excluded evidence is in written form, a copy must be marked for identification. Rejected exhibits, adequately marked for identification, must be retained in the record.

(h) Exhibits. A written exhibit will not be received in evidence unless the original and two copies are offered and a copy is furnished to each party, or the parties have been previously furnished with copies or the presiding officer directs otherwise. The presiding officer may permit a party to replace with a true copy an original document admitted in evidence.

(i) Official record. An official record of a government agency or entry in an official record may be evidenced by an official publication or by a copy attested by the officer having legal custody of the record and accompanied by a certificate of his custody.

(j) Official notice. (1) The Commission or the presiding officer may take official notice of any fact of which a court of the United States may take judicial notice or of any technical or scientific fact within the knowledge of the Commission as an expert body. Each fact officially noticed under this paragraph must be specified in the record with sufficient particularity to advise the parties of the matters which have been noticed or brought to the attention of the parties before final decision and each party adversely affected by the decision shall be given opportunity to controvert the fact.

(2) If a decision is stated to rest in whole or in part on official notice of a fact which the parties have not had a prior opportunity to controvert, a party may controvert the fact by filing an appeal from an initial decision or a petition for reconsideration of a final decision. The appeal must clearly and concisely set forth the information relied upon to controvert the fact.

Proposed findings and conclusions.

(a) Any party to a proceeding may, or if directed by the presiding officer shall, file proposed findings of fact and conclusions of law, briefs and a proposed form of order or decision within the time provided by this section, except as otherwise ordered by the presiding officer:

(1) The party who has the burden of proof shall, within thirty (30) days after the record is closed, file proposed findings of fact and conclusions of law and briefs, and a proposed form of order or decision.

(2) Other parties may file proposed findings, conclusions of law and briefs within forty (40) days after the record is closed.

(3) A party who has the burden of proof may reply within five (5) days after filing of proposed findings and conclusions of law and briefs by other parties.

(b) Failure to file proposed findings of fact, conclusions of law, or briefs when directed to do so may be considered a default, and an order or initial decision may be entered accordingly.

(c) Proposed findings of fact must be clearly and concisely set forth in numbered paragraphs and must be confined to the material issues of fact presented on-the-record, with exact citations to the transcript of record and exhibits in support of each proposed finding. Proposed conclusions of law must be set forth in numbered paragraphs as to all material issues of law or discretion presented on-the-record. An intervenor's proposed findings of fact and conclusions of law must be confined to issues which that party placed in controversy or sought to place in controversy in the proceeding.

Initial decision and its effect.

(a) After hearing, the presiding officer will render an initial decision which will constitute the final action of the Commission forty (40) days after its date unless any party petitions for Commission review in accordance with § 2.341 or the Commission takes review sua sponte. Start Printed Page 2264

(b) Where the public interest so requires, the Commission may direct that the presiding officer certify the record to it without an initial decision, and may:

(1) Prepare its own decision which will become final unless the Commission grants a petition for reconsideration under § 2.345; or

(2) Omit an initial decision on a finding that due and timely execution of its functions imperatively and unavoidably so requires.

(c) An initial decision will be in writing and will be based on the whole record and supported by reliable, probative, and substantial evidence. The initial decision will include:

(1) Findings, conclusions, and rulings, with the reasons or basis for them, on all material issues of fact, law, or discretion presented on-the-record;

(2) All facts officially noticed and relied on in making the decision;

(3) The appropriate ruling, order, or denial of relief with the effective date;

(4) The time within which a petition for review of the decision may be filed, the time within which answers in support of or in opposition to a petition for review filed by another party may be filed and, in the case of an initial decision which may become final in accordance with paragraph (a) of this section, the date when it may become final.

Start Amendment Part

24. Section 2.901 is revised to read as follows:

End Amendment Part
Scope of subpart I.

This subpart applies, as applicable, to all proceedings under subparts G, J, K, L, M, and N of this part.

Start Amendment Part

25. In § 2.902, paragraph (e) is revised to read as follows:

End Amendment Part
Definitions.
* * * * *

(e) Party, in the case of proceedings subject to this subpart includes a person admitted as a party under § 2.309 or an interested State admitted under § 2.315(c).

Start Amendment Part

26. Section 2.1000 is revised to read as follows:

End Amendment Part
Scope of subpart J.

The rules in this subpart, together with the rules in subparts C and G of this part, govern the procedure for an application for authorization to construct a high-level radioactive waste repository at a geologic repository operations area noticed under §§ 2.101(f)(8) or 2.105(a)(5), and for an application for a license to receive and possess high level radioactive waste at a geologic repository operations area. The procedures in this subpart take precedence over those in 10 CFR part 2, subpart C, except for the following provisions: §§ 2.301; 2.303; 2.307; 2.309; 2.312; 2.313; 2.314; 2.315; 2.316; 2.317(a); 2.318; 2.319; 2.320; 2.321; 2.322; 2.323; 2.324; 2.325; 2.326; 2.327; 2.328; 2.330; 2.331; 2.333; 2.335; 2.338; 2.339; 2.342; 2.343; 2.344; 2.345; 2.346; 2.348; and 2.390. The procedures in this subpart take precedence over those in 10 CFR part 2, subpart G, except for the following provisions: §§ 2.701, 2.702; 2.703; 2.708; 2.709; 2.710; 2.711; 2.712.

Start Amendment Part

27. In § 2.1001, the definitions of Documentary material, Interested governmental participant, Licensing Support Network, Party, and Pre-license application phase are revised to read as follows:

End Amendment Part
Definitions
* * * * *

Documentary material means:

(1) Any information upon which a party, potential party, or interested governmental participant intends to rely and/or to cite in support of its position in the proceeding for a construction authorization for a high-level radioactive waste repository at a geologic repository operations area pursuant to parts 60 or 63 of this chapter, a license to receive and possess high-level radioactive waste at a geologic repository operations area pursuant to parts 60 or 63 of this chapter;

(2) Any information that is known to, and in the possession of, or developed by the party that is relevant to, but does not support, that information or that party's position; and

(3) All reports and studies, prepared by or on behalf of the potential party, interested governmental participant, or party, including all related “circulated drafts,” relevant to both the license application and the issues set forth in the Topical Guidelines in Regulatory Guide 3.69, regardless of whether they will be relied upon and/or cited by a party. The scope of documentary material shall be guided by the topical guidelines in the applicable NRC Regulatory Guide.

* * * * *

Interested governmental participant means any person admitted under § 2.315(c) of this part to the 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, and an application for a license to receive and possess high level radioactive waste at a geologic repository operations area under parts 60 and 63 of this chapter.

Licensing Support Network means the combined system that makes documentary material available electronically to parties, potential parties, and interested governmental participants to a proceeding for a construction authorization for a high-level radioactive waste repository at a geologic repository operations area, and an application for a license to receive and possess high level radioactive waste at a geologic repository operations area under parts 60 and 63 of this chapter.

* * * * *

Party for the purpose of this subpart means the DOE, the NRC staff, the host State, any affected unit of local government as defined in Section 2 of the Nuclear Waste Policy Act of 1982, as amended (42 U.S.C. 10101), any affected Indian Tribe as defined in section 2 of the Nuclear Waste Policy Act of 1982, as amended (42 U.S.C. 10101), and a person admitted under § 2.309 to the proceeding on an application for construction authorization for a high-level radioactive waste repository at a geologic repository operations area under parts 60 or 63 of this chapter, and an application for a license to receive and possess high level radioactive waste at a geologic repository operations area under parts 60 and 63 of this chapter; provided that a host State, affected unit of local government, or affected Indian Tribe files a list of contentions in accordance with the provisions of § 2.309.

* * * * *

Pre-license application phase means the time period before a construction authorization for a high-level radioactive waste repository at a geologic repository operations area under parts 60 or 63 of this chapter is docketed under § 2.101(f)(3), and the time period before a license application to receive and possess high-level radioactive waste at a geologic repository operations area under parts 60 or 63 is docketed under § 2.101(f)(3).

* * * * *

28. In § 2.1003, the introductory text of paragraph (a) is revised to read as follows:

Availability of material.

(a) Subject to the exclusions in § 2.1005 and paragraphs (b) and (c) of this section, DOE shall make available, no later than six months in advance of submitting its application for either a construction authorization for a HLW repository at a geologic repository operations area under parts 60 or 63 of this chapter, or a license to receive and possess high-level radioactive waste at a Start Printed Page 2265geologic repository operations area under parts 60 or 63 of this chapter, the NRC shall make available no later than thirty days after the DOE certification of compliance under § 2.1009(b), and each other potential party, interested governmental participant or party shall make available no later than ninety days after the DOE certification of compliance under § 2.1009(b):

* * * * *

29. In § 2.1006, paragraph (a) is revised to read as follows:

Privilege.

(a) Subject to the requirements in § 2.1003(a)(4), the traditional discovery privileges recognized in NRC adjudicatory proceedings and the exceptions from disclosure in § 2.390 may be asserted by potential parties, interested States, local governmental bodies, Federally-recognized Indian Tribes, and parties. In addition to Federal agencies, the deliberative process privilege may also be asserted by States, local governmental bodies, and Federally-recognized Indian Tribes.

* * * * *
Start Amendment Part

30. In § 2.1010, paragraph (e) is revised to read as follows:

End Amendment Part
Pre-license application presiding officer.
* * * * *

(e) The Pre-License Application presiding officer possesses all the general powers specified in §§ 2.319 and 2.321(c).

* * * * *
Start Amendment Part

31. In § 2.1012, paragraph (b) is revised to read as follows:

End Amendment Part
Compliance.
* * * * *

(b)(1) A person, including a potential party given access to the Licensing Support Network under this subpart, may not be granted party status under § 2.309, or status as an interested governmental participant under § 2.315, if it cannot demonstrate substantial and timely compliance with the requirements of § 2.1003 at the time it requests participation in the HLW licensing proceeding under § 2.309 or § 2.315.

(2) A person denied party status or interested governmental participant status under paragraph (b)(1) of this section may request party status or interested governmental participant status upon a showing of subsequent compliance with the requirements of § 2.1003. Admission of such a party or interested governmental participant under §§ 2.309 or 2.315, respectively, is conditioned on accepting the status of the proceeding at the time of admission.

* * * * *
Start Amendment Part

32. In § 2.1013, paragraphs (a)(1), (a)(2), (b) and (c)(1) are revised to read as follows:

End Amendment Part
Use of the electronic docket during the proceeding.

(a)(1) As specified in § 2.303, the Secretary of the Commission will maintain the official docket of the proceeding on the application for construction authorization for a high-level radioactive waste repository at a geologic repository operations area under parts 60 or 63 of this chapter, and for applications 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.

(2) Commencing with the docketing in an electronic form of 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 pursuant to parts 60 or 63 of this chapter, the Secretary of the Commission, upon determining that the application can be properly accessed under the Commission's electronic docket rules, will establish an electronic docket to contain the official record materials of the high-level radioactive waste licensing proceeding in searchable full text, or, for material that is not suitable for entry in searchable full text, by header and image, as appropriate.

(b) Absent good cause, all exhibits tendered during the hearing must have been made available to the parties in electronic form before the commencement of that portion of the hearing in which the exhibit will be offered. The electronic docket will contain a list of all exhibits, showing where in the transcript each was marked for identification and where it was received into evidence or rejected. For any hearing sessions recorded stenographically or by other means, transcripts will be entered into the electronic docket on a daily basis in order to afford next-day availability at the hearing. However, for any hearing sessions recorded on videotape or other video medium, if a copy of the video recording is made available to all parties on a daily basis that affords next-day availability at the hearing, a transcript of the session prepared from the video recording will be entered into the electronic docket within twenty-four (24) hours of the time the transcript is tendered to the electronic docket by the transcription service.

(c)(1) All filings in the adjudicatory proceeding on an application for either a construction authorization for a HLW repository at a geologic repository operations area under parts 60 or 63 of this chapter, or a license to receive and possess high-level radioactive waste at a geologic repository operations area under parts 60 or 63 of this chapter, shall be transmitted electronically by the submitter to the presiding officer, parties, and the Secretary of the Commission, according to established format requirements. Parties and interested governmental participants will be required to use a password security code for the electronic transmission of these documents.

* * * * *
[Removed]
Start Amendment Part

33. Section 20.1014 is removed.

End Amendment Part Start Amendment Part

34. In § 2.1015, paragraphs (b) and (d) are revised to read as follows:

End Amendment Part
Appeals.
* * * * *

(b) A notice of appeal from a Pre-License Application presiding officer order issued under § 2.1010, a presiding officer prehearing conference order issued under § 2.1021, a presiding officer order granting or denying a motion for summary disposition issued in accordance with § 2.1025, or a presiding officer order granting or denying a petition to amend one or more contentions under § 2.309, must be filed with the Commission no later than ten (10) days after service of the order. A supporting brief must accompany the notice of appeal. Any other party, interested governmental participant, or potential party may file a brief in opposition to the appeal no later than ten (10) days after service of the appeal.

* * * * *

(d) When, in the judgment of a Pre-License Application presiding officer or presiding officer, prompt appellate review of an order not immediately appealable under paragraph (b) of this section is necessary to prevent detriment to the public interest or unusual delay or expense, the Pre-License Application presiding officer or presiding officer may refer the ruling promptly to the Commission, and shall provide notice of this referral to the parties, interested governmental participants, or potential parties. The parties, interested governmental participants, or potential parties may also request that the Pre-License Application presiding officer or presiding officer certify under § 2.319 Start Printed Page 2266rulings not immediately appealable under paragraph (b) of this section.

* * * * *
[Removed]
Start Amendment Part

35. Section 2.1016 is removed.

End Amendment Part Start Amendment Part

36. In § 2.1018, paragraphs (a)(1)(v), (c), (f)(3), and (g) are revised to read as follows:

End Amendment Part
Discovery.

(a)(1) * * *

(v) Requests for admissions pursuant to § 2.708;

* * * * *

(c)(1) Upon motion by a party, potential party, interested governmental participant, or the person from whom discovery is sought, and for good cause shown, the presiding officer may make any order that justice requires to protect a party, potential party, interested governmental participant, or other person from annoyance, embarrassment, oppression, or undue burden, delay, or expense, including one or more of the following:

(i) That the discovery not be had;

(ii) That the discovery may be had only on specified terms and conditions, including a designation of the time or place;

(iii) That the discovery may be had only by a method of discovery other than that selected by the party, potential party, or interested governmental participant seeking discovery;

(iv) That certain matters not be inquired into, or that the scope of discovery be limited to certain matters;

(v) That discovery be conducted with no one present except persons designated by the presiding officer;

(vi) That, subject to the provisions of § 2.390 of this part, a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; or

(vii) That studies and evaluations not be prepared.

(2) If the motion for a protective order is denied in whole or in part, the presiding officer may, on such terms and conditions as are just, order that any party, potential party, interested governmental participant or other person provide or permit discovery.

* * * * *

(f) * * *

(3) An independent request for issuance of a subpoena may be directed to a nonparty for production of documents. This section does not apply to requests for the testimony of the NRC regulatory staff under § 2.709.

(g) The presiding officer, under § 2.322, may appoint a discovery master to resolve disputes between parties concerning informal requests for information as provided in paragraphs (a)(1) and (a)(2) of this section.

[Amended]
Start Amendment Part

37. In § 2.1019, paragraph (j) is removed.