United States Nuclear Regulatory Commission - Protecting People and the Environment

Frequently Asked Questions About 10 CFR Part 2

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Why were the Part 2 procedures changed in 2004?

The Commission directed the staff to reexamine the procedures governing NRC hearings, with the goal of improving the agency's hearing process. The updated 10 CFR Part 2 rules of practice improved the efficiency and effectives of the hearing process by establishing different hearing "tracks," consolidating procedures that are common to all NRC hearings, and improving case management methods. The purpose of the rule is to reduce the duration, cost, and burden of hearings for all parties, while enhancing public participation in NRC proceedings. Since the procedure changes in 2004, the NRC has made additional changes to the Part 2 rules of practice most notably in 2012 in order to continue to improve the agency’s hearing process.

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Why did the Commission eliminate formal discovery and cross-examination for most proceedings?

The Commission believed that eliminating formal discovery and cross-examination would improve case management by avoiding needless delay and unproductive litigation, while easing the burdens of participation in the hearing process for all participants. With regard to discovery, the final rule requires the early disclosure of documents, information, and witnesses by all parties, and mandates that the NRC staff must prepare a hearing file in proceedings conducted under Subparts L and N, giving all participants access to relevant information at the start of the hearing process without the need for more formal discovery. 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, which allows access to all relevant documents. The aggregate of these mandatory disclosure mechanisms provides for discovery equal to or greater than the "discovery" provisions for on-the-record adjudicatory hearings under the Administrative Procedures Act. More formal discovery methods, such as interrogatories, depositions, and requests for production and admission remain available under Subparts G and J.

With regard to cross-examination, the final rule retains cross-examination for Subpart G hearings. In less formal hearings, the questioning of witnesses will be conducted by the presiding officer, although the parties may submit suggested questions or seek permission to crossexamine witnesses themselves. The Commission believes that cross-examination performed by the parties is usually 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. By contrast, the questioning of witnesses by the presiding officer, complemented by the form of questions submitted by the parties, provides a means for the expedient, focused and well-managed development of an adequate record for decision. Given that the presiding officer bears the ultimate responsibility for the preparation of an initial decision on the contentions or contested matters, it follows that the presiding officer is well-suited to assess the information and the state of the record as the hearing progresses to determine where the record requires further clarification or explanation.

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Now that cross-examination is eliminated for most proceedings, will interveners have any opportunity to question a license applicant's witnesses?

The Commission believes that the character of contested matters has a direct bearing on whether the procedures of more formal hearings (such as cross-examination) are appropriate. Accordingly, the 10 CFR Part 2 rules of practice provide for cross-examination by the parties in proceedings that warrant the use of Subpart G hearing procedures. Other proceedings will utilize less formal procedures that do not include cross-examination by the parties unless ordered by the presiding officer or the Commission, where it is determined that such cross-examination is necessary to develop an adequate record for decision. See §§2.1207, 2.1204(b), 2.1405, and 2.1402(c). Although the presiding officer will question witnesses in less formal hearings, the less formal 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.

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Did the updated rules of practice change the procedures that are applicable to the potential license application for a high-level waste (HLW) repository at Yucca Mountain?

In general, no. The Commission's longstanding position has been that hearings on an application to construct and operate an HLW repository would be formal. While not mandated by statute, the Commission codified this viewpoint at 10 CFR Part 2, Subpart J, which provides for a mandatory formal hearing prior to authorizing the construction of a geologic repository for HLW and before approving the receipt and possession of HLW at a geologic repository (46 FR 13971; Feb. 25, 1981). It is likely that both the initial licensing for construction of an HLW repository at the Yucca Mountain site and the initial licensing for receipt and possession of HLW will both be highly contested and involve multiple parties and a large number of disputes over material facts. The Commission's consistent position that this unprecedented proceeding would be conducted as a formal hearing has engendered certain public expectations concerning the hearing process for this proceeding. Consequently the hearing selection provision in §2.310(f) provides that the more formal hearing procedures of Subparts G and J will apply to the Commission's repository licensing process. Certain procedural requirements in existing Part 2 (e.g., timing of the filing of petitions and contentions) have changed. These changes will, of course, apply to the Yucca Mountain proceeding unless the Commission directs otherwise.

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Did the updated rule make it more difficult for an interested person to intervene in an NRC proceeding?

In general, no. §2.309 establishes that requests for hearings or petitions to intervene in NRC adjudicatory proceedings must meet the basic standing and "one good contention" requirements of the old §2.714, and applies those requirements to all NRC adjudicatory proceedings. This is a substantial departure from the old Subpart L, which required only the articulation of "areas of concern about the licensing activity that is the subject matter of the proceeding." The Commission believed that this modification would better ensure that hearings will cover relevant concerns through the early framing of contested matters and the focusing of litigation on real, concrete issues. In addition, interested parties are now required to file their contentions as part of the petition to intervene. Consequently, more "upfront" work is required to prepare the petition to intervene, so the rules provide additional time (60 days) to prepare the petition.

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With the elimination of formal discovery (e.g., interrogatories, subpoenas, requests for admission), how does the presiding officer police and enforce a party's mandatory duty to disclose relevant material?

The Commission and the Atomic Safety and Licensing Board have always relied on the litigators appearing before them to carry out their disclosure responsibilities in accordance with the highest standards of integrity. The informal disclosure requirements of the rule do not change this obligation. The approach embodied in Subparts C and G provides for the mandatory disclosure of a wide range of information and material relevant to the contested issues in the proceeding, without resort to formal processes, unless intercession by the presiding officer becomes necessary. Under the former practice, the disclosure of relevant material would often depend upon a precisely worded discovery request submitted by the opposing party. The current rule constitutes a significant improvement because it obligates parties to disclose all relevant material from the outset, without the direct involvement of the presiding officer. However, should an opposing party not meet its duty to timely and voluntarily make required disclosures of information, an aggrieved party may seek to enforce this obligation by filing a motion to compel discovery pursuant to §§2.323 or 2.705(h).

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What is the "fast track" proceeding? Who can choose to use it and how?

Subpart N contains the procedures for the "fast track" proceeding. This process provides simplified procedures for expedited litigation. The hearing is expected to be a quick, relatively informal proceeding, where the presiding officer can make an oral decision from the bench or shortly after conclusion of the oral phase of the hearing. Subpart N procedures are available for all NRC adjudications where all of the parties agree to use Subpart N and the hearing is expected to last less than 2 days, except for proceedings on uranium enrichment facility licensing, initial authorization to construct a high-level waste repository, or issuance of a license to possess and receive high-level waste at a geologic repository. Subpart N procedures 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 resolved quickly before an independent decision maker.

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Is it true that the main reason for the updated regulations was to speed up hearings?

No. There were many reasons for changing the hearing procedures. In part, the process was changed to expand the opportunity for effective participation by using less formal and less expensive procedures. A trial-type process is neither required nor recommended for technical issues such as those at addressed in most NRC proceedings. The Commission is motivated by a desire to reduce the expense and burden on all parties in hearings and to focus the hearings on the substantive issues. Thus, many changes are designed to reduce the resources necessary to participate in hearings (e.g., mandatory disclosures and requirements for a hearing file rather than formal discovery). The Commission was also taking the opportunity to develop alternatives to the expensive and lengthy formal proceedings. Overall, the changes reflected the Commission's efforts to better tailor the hearing procedures to the scope and purpose of the adjudication.

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Have the requirements for formulating contentions changed?

No. The requirements for an admissible contention are unchanged. However, in a significant change from the pre-2004 rules of practice, the requirement to proffer specific, adequately supported contentions in order to be admitted as a party is extended to informal proceedings under Subpart L. In addition, proposed contentions must be filed as part of the petition to intervene.

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Do the rules provide for or mandate alternative dispute resolution (ADR)?

The revisions to the rules of practice provide for, but do not require, the use of ADR.

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Do the procedures provide for electronic filing of documents with the Commission and other parties in a proceeding?

On August 28, 2007, the final rule regarding "Use of Electronic Submissions in Agency Hearings" was published in the Federal Register (72 FR 49139; Aug. 28, 2007). This final rule outlines the steps needed to electronically file documents in NRC adjudicatory proceedings, and made electronic submission to the Electronic Information Exchange (EIE) mandatory for submissions of all documents, with exceptions to be decided by the individual Atomic Safety and Licensing Board presiding over the adjudicatory proceeding.

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Proposed amendments to 10 CFR Part 2 Subpart J, as well as provisions of the Electronic Maintenance and Submission of Information Rule, allow for submission of documents via electronic information exchange (EIE). Will filings that are submitted via EIE with authenticated electronic signatures be acceptable under Subpart C in lieu of paper copies?

Yes. Under the Final Rule for "Use of Electronic Submissions in Agency Hearings" published in the Federal Register (72 FR 49139; Aug. 28, 2007), all submissions to the parties and the presiding Atomic Safety and Licensing Board (or the Commission) in an adjudicatory proceeding must be submitted through the EIE. Paper copies are no longer accepted by the Office of the Secretary unless the submitter has first submitted a waiver for exemption proving hardship and it has been approved by the Atomic Safety and Licensing Board, as outlined in 10 sCFR 2.302(g)(4).

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Page Last Reviewed/Updated Wednesday, April 10, 2019