United States Nuclear 

Regulatory Commission 

Staff Practice and 

Procedure Digest

Commission, Appeal Board and 

Licensing Board Decisions

July 1972 – September 2010

Office of the General Counsel 

NUREG-0386

Digest 16
United States Nuclear 

Regulatory Commission 

Staff Practice and 

Procedure Digest

Commission, Appeal Board and 

Licensing Board Decisions

July 1972 – September 2010

Manuscript Completed: March 2011 

Date Published: June 2011

Office of the General Counsel

NUREG-0386

Digest 16
This page intentionally left blank. 
JUNE 2011 TABLE OF CONTENTS 1 

TABLE OF CONTENTS

(References are to Chapter Title and Page Number) 

 

 

NOTE TO USERS 

POLICY STATEMENTS 

 Camera Coverage of Hearings (1978) 

 Investigations, Inspections, and Adjudicatory Proceedings (1984) 

 Alternative Means of Dispute Resolution (1992) 

 Conduct of Adjudicatory Proceedings (1986) 

 Conduct of New Reactor License Proceedings (2008) 

NEW RULES 

 Use of Electronic Submissions in Agency Hearings (2007) 

 

1.0 APPLICATION FOR LICENSE/PERMIT .................................... Ap 1 

1.1 Applicants.................................................................................. Ap 1 

1.2 Renewal Applications – See Section 6.11 for Reactor 

 License Renewal Proceedings ............................................. Ap 1 

1.3 Applications for Early Site Review .......................................... Ap 2 

1.4 Application for License Transfer ............................................. Ap 3 

1.5 Form of Application for Construction Permit/Operating

 License.................................................................................... Ap 3 

1.5.1 Form of Application for Initial License/Permit .............................. Ap 3 

1.5.2 Form of Renewal Application for License/Permit (RESERVED) . Ap 3 

1.6 Contents of Application ........................................................... Ap 4 

1.6.1 Incomplete Applications .............................................................. Ap 4 

1.6.2 Material False Statements ......................................................... Ap 4 

1.7 Docketing of License/Permit Application ............................... Ap 7 

1.8 Notice of License/Permit Application ..................................... Ap 7 

Chapter Abbreviation

 

Policy Statements PS 

New Rules 

Application for License/Permit 

NR 

Ap 

Prehearing Matters Pre 

Hearings H 

Posthearing Matters APP 

General Matters GM 
JUNE 2011 TABLE OF CONTENTS 2 

1.8.1 Publication of Notice in Federal Register .................................... Ap 7 

1.8.2 Amended Notice After Addition of New Owners (RESERVED) .. Ap 7 

1.8.3 Notice on License Renewal (RESERVED) ................................. Ap 8 

1.8.4 SUNSI/SGI Access Procedures for Potential Parties ................. Ap 8 

1.9 Staff Review of License/Permit Application ........................... Ap 9 

1.10 Withdrawal of Application for License/Permit/Transfer ........ Ap 12 

1.10.1 Withdrawal without Prejudice ...................................................... Ap 14 

1.10.2 Withdrawal with Prejudice ........................................................... Ap 15 

1.11 Abandonment of Application for License/Permit................... Ap 16 

2.0 PREHEARING MATTERS .......................................................... Pre 1 

2.1 Scheduling of Hearings ............................................................ Pre 1 

 (See Section 3.3) 

2.2 Necessity of Hearing ................................................................ Pre 1 

2.2.1 Materials License Hearings ......................................................... Pre 2 

2.2.2 Operating License/Amendment Hearings ................................... Pre 2 

2.2.3 Hearings on Exemptions ............................................................. Pre 3 

2.2.4 License Transfer Hearings .......................................................... Pre 3 

2.2.5 Hearings on Miscellaneous Matters ............................................ Pre 4 

2.3 Location of Hearing .................................................................. Pre 5 

2.3.1 Public Interest Requirements Affecting Hearing Location ........... Pre 5 

 (RESERVED) 

2.3.2 Convenience of Litigants Affecting Hearing Location ................. Pre 5 

 (See Section 3.3.5.2) 

2.4 Issues for Hearing ..................................................................... Pre 5 

 (See Sections 3.4 to 3.4.6) 

2.5 Notice of Hearing ...................................................................... Pre 5 

2.5.1 Contents of Notice of Hearing ..................................................... Pre 6 

2.5.2 Adequacy of Notice of Hearing ................................................... Pre 6 

2.5.3 Publication of Notice of Hearing in Federal Register .................. Pre 7 

2.5.4 Requirement to Renotice ............................................................ Pre 8 

2.6 Prehearing Conferences .......................................................... Pre 8 

2.6.1 Transcripts of Prehearing Conferences ...................................... Pre 9 

2.6.2 Prehearing Conference Order ..................................................... Pre 9 

2.6.2.1 Effect of Prehearing Conference Order ...................................... Pre 9 

2.6.2.2 Objections to Prehearing Conference Order ............................... Pre 9 

2.6.2.3 Appeal from Prehearing Conference Order ................................ Pre 9 

2.7 Television Coverage of Prehearing Conferences .................. Pre 9 

 (See Section 6.32) 

2.8 Conference Calls ....................................................................... Pre 9 
JUNE 2011 TABLE OF CONTENTS 3 

2.9 Prehearing Motions .................................................................. Pre 10 

2.9.1 Prehearing Motions Challenging ASLB Composition .................. Pre 10 

2.9.1.1 Contents of Motion Challenging ASLB Composition ................... Pre 10 

2.9.1.2 Evidence of Bias in Challenges to ASLB Composition ............... Pre 11 

2.9.1.3 Waiver of Challenges to ASLB Composition ............................... Pre 11 

2.9.2 Motions ....................................................................................... Pre 11 

2.10 Intervention ............................................................................... Pre 11 

2.10.1 General Policy on Intervention .................................................... Pre 11 

2.10.2 Intervenor's Need for Counsel .................................................... Pre 13 

2.10.3 Petitions to Intervene .................................................................. Pre 14 

2.10.3.1 Pleading Requirements ............................................................... Pre 16 

2.10.3.2 Defects in Pleadings ................................................................... Pre 17 

2.10.3.3 Time Limits/Late Petitions ........................................................... Pre 19 

2.10.3.3.1 Time for Filing Intervention Petitions ........................................... Pre 20 

2.10.3.3.1.A Timeliness of Amendments to Intervention Petitions .................. Pre 21 

2.10.3.3.2 Sufficiency of Notice of Time Limits on Intervention ................... Pre 22 

2.10.3.3.3 Consideration of Untimely Petitions to Intervene ........................ Pre 23 

2.10.3.3.3.A Factor #1 – Good Cause for Late Filing ...................................... Pre 28 

2.10.3.3.3.B Factor #2 – Nature of the Requestor’s/Petitioner’s Right 

 Under the Act to Be Made a Party to the Proceeding .............. Pre 33 

2.10.3.3.3.C Factor #3 – Nature and Extent of the Requestor’s/Petitioner’s 

 Property, Financial or Other Interest in the Proceeding ........... Pre 33 

2.10.3.3.3.D Factor #4 – Possible Effect of Any Order that May Be 

 Entered in the Proceeding on the Requestor’s/Petitioner’s 

 Interest ........................................................................................ Pre 33 

2.10.3.3.3.E Factor #5 – Other Means for Protecting Petitioner’s Interests .... Pre 33 

2.10.3.3.3.F Factor #6 – Extent Petitioner’s Interests Will Be Represented by 

 Existing Parties ........................................................................ Pre 35 

2.10.3.3.3.G Factor #7 – Extent Participation Will Broaden Issues or Delay 

 the Proceeding ......................................................................... Pre 36 

2.10.3.3.3.H Factor #8 – Ability of Petitioner to Assist in Developing Record Pre 38 

2.10.3.3.4 Appeals from Rulings on Late Intervention ................................. Pre 39 

2.10.3.3.5 Mootness of Petitions to Intervene .............................................. Pre 40 

2.10.3.4 Amendment of Petition Expanding Scope of Intervention ........... Pre 40 

2.10.3.5 Withdrawal of Petition to Intervene ............................................. Pre 41 

2.10.3.6 Intervention in Antitrust Proceedings .......................................... Pre 42 

2.10.4 Interest and Standing for Intervention ......................................... Pre 44 

2.10.4.1 Judicial Standing to Intervene ..................................................... Pre 47 

2.10.4.1.1 “Injury-in-Fact” and “Zone of Interest” Tests for 

 Standing to Intervene ............................................................... Pre 52 

2.10.4.1.1.1 “Injury-in-fact” Test ...................................................................... Pre 54 

2.10.4.1.1.1.A Future/Hypothetical/Academic Injury .......................................... Pre 57 

2.10.4.1.1.1.B Economic/Competitive Injury....................................................... Pre 58 

2.10.4.1.1.1.C Health and Safety/Environmental Injury ...................................... Pre 60 

2.10.4.1.1.1.D Injury to Legal and/or Constitutional Rights ................................ Pre 61 

2.10.4.1.1.1.E Injury Due to Proximity to a Facility ............................................. Pre 62 

2.10.4.1.1.1.F Injury Due to Failure to Prepare an EIS ...................................... Pre 72 

2.10.4.1.1.1.G Injury Due to Property Interest .................................................... Pre 73 

2.10.4.1.1.2 “Zone of Interests” Test ............................................................... Pre 73 
JUNE 2011 TABLE OF CONTENTS 4 

2.10.4.1.2 Standing of Organizations to Intervene ....................................... Pre 76 

2.10.4.1.2.1 Organizational Standing .............................................................. Pre 79 

2.10.4.1.2.2 Representational Standing .......................................................... Pre 81 

2.10.4.1.2.2.A The Person an Organization Seeks to Represent Must Be 

 a “Member” and Have Given “Authorization” ........................... Pre 83 

2.10.4.1.2.2.B Timing of Membership ................................................................ Pre 85 

2.10.4.1.2.3 Governments/Indian Tribes and Organizational Standing .......... Pre 85 

2.10.4.1.3 Standing to Intervene in Export Licensing Cases ....................... Pre 88 

2.10.4.1.4 Standing to Intervene in License Transfer Proceedings ............. Pre 89 

2.10.4.2 Discretionary Intervention ........................................................... Pre 91 

2.10.5 Contentions of Intervenors .......................................................... Pre 94 

2.10.5.1 Scope of Contentions .................................................................. Pre 96 

2.10.5.2 Pleading Requirements for Contentions ..................................... Pre 98 

2.10.5.2.1 Bases for Contentions ................................................................. Pre 103 

2.10.5.2.2 Specificity of Contentions ............................................................ Pre 110 

2.10.5.3 Response to Contentions ............................................................ Pre 115 

2.10.5.3.1 Reply Briefs ................................................................................. Pre 115 

2.10.5.4 Material Used in Support of Contentions .................................... Pre 115 

2.10.5.5 Timeliness of Submission of Contentions ................................... Pre 118 

2.10.5.5.1 Factor #1 – Good Cause for Late Filing ...................................... Pre 123 

2.10.5.5.2 Factor #2 – Nature of the Requestor’s/Petitioner’s Right 

 Under the Act to Be Made a Party to the Proceeding .............. Pre 128 

2.10.5.5.3 Factor #3 – Nature and Extent of the Requestor’s/Petitioner’s 

 Property, Financial or Other Interest in the Proceeding ........... Pre 128 

2.10.5.5.4 Factor #4 – Possible Effect of Any Order that May Be 

 Entered in the Proceeding on the Requestor’s/Petitioner’s 

 Interest ..................................................................................... Pre 128 

2.10.5.5.5 Factor #5 – Other Means Available to Protect the Petitioner’s 

 Interest ..................................................................................... Pre 129 

2.10.5.5.6 Factor #6 – Extent Petitioner’s Interests Are Represented by 

 Existing Parties ........................................................................ Pre 130 

2.10.5.5.7 Factor #7 – Extent Participation Will Broaden Issues or Delay 

 the Proceeding ......................................................................... Pre 131 

2.10.5.5.8 Factor #8 – Ability of Petitioner to Assist in Developing Record . Pre 132 

2.10.5.6 Contentions Challenging Regulations ......................................... Pre 133 

2.10.5.7 Contentions Involving Generic Issues/Subject of Rulemaking .... Pre 135 

2.10.5.8 Contentions Challenging Absent or Incomplete Documents ....... Pre 138 

2.10.5.9 Contentions re Adequacy of Security Plan ................................. Pre 140 

2.10.5.10 Defective Contentions ................................................................. Pre 142 

2.10.5.11 Discovery to Frame Contentions ................................................. Pre 144 

2.10.5.12 Stipulations on Contentions (RESERVED) ................................. Pre 145 

2.10.6 Conditions on Grants of Intervention .......................................... Pre 145 

2.10.7 Reinstatement of Intervenor After Withdrawal ............................ Pre 145 

2.10.8 Rights of Intervenors at Hearing ................................................. Pre 145 

2.10.8.1 Burden of Proof ........................................................................... Pre 146 

2.10.8.2 Presentation of Evidence ............................................................ Pre 147 

2.10.8.2.1 Affirmative Presentation by Intervenor/Participants .................... Pre 147 

2.10.8.2.2 Consolidation of Intervenor Presentations .................................. Pre 147 

2.10.8.3 Cross-Examination by Intervenors .............................................. Pre 148 

2.10.8.4 Intervenor’s Right to File Proposed Findings .............................. Pre 149 
JUNE 2011 TABLE OF CONTENTS 5 

2.10.8.5 Attendance at/Participation in Prehearing 

 Conferences/Hearings ............................................................. Pre 149 

2.10.8.6 Pleadings and Documents of Intervenors ................................... Pre 150 

2.10.9 Cost of Intervention ..................................................................... Pre 151 

2.10.9.1 Financial Assistance to Intervenors ............................................ Pre 151 

2.10.9.2 Intervenors’ Witnesses ................................................................ Pre 152 

2.10.10 Appeals by Intervenors ............................................................... Pre 152 

2.10.11 Intervention in Remanded Proceedings ...................................... Pre 152 

2.11 Non-Party Participation – Limited Appearance and

 Interested States ....................................................................... Pre 153 

2.11.1 Limited Appearances in NRC Adjudicatory Proceedings ............ Pre 153 

2.11.1.1 Requirements for Limited Appearance ....................................... Pre 153 

2.11.1.2 Scope/Limitations of Limited Appearances ................................. Pre 153 

2.11.2 Participation by Non-Party Interested States and 

 Local Governments .................................................................. Pre 154 

2.12 Discovery ................................................................................... Pre 157 

2.12.1 Time for Discovery ...................................................................... Pre 157 

2.12.2 Discovery Rules .......................................................................... Pre 159 

2.12.2.1 Construction of Discovery Rules ................................................. Pre 161 

2.12.2.2 Scope of Discovery ..................................................................... Pre 162 

2.12.2.3 Requests for Discovery During Hearing ...................................... Pre 165 

2.12.2.4 Privileged Matter ......................................................................... Pre 165 

2.12.2.4.1 Attorney-Client Privilege ............................................................. Pre 167 

2.12.2.4.2 Identity of Confidential Informants .............................................. Pre 170 

2.12.2.4.3 FOIA Exemptions – Executive/Deliberative Process Privilege .... Pre 172 

2.12.2.4.4 FOIA Exemptions – Personal Privacy Privilege .......................... Pre 177 

2.12.2.4.5 FOIA Exemptions – Proprietary Information ............................... Pre 177 

2.12.2.4.6 Waiver of a Privilege ................................................................... Pre 177 

2.12.2.5 Access to Classified, Safeguards, or Other Security-Related 

 Information ............................................................................... Pre 178 

2.12.2.6 Protective Orders ........................................................................ Pre 178 

2.12.2.7 Work Product .............................................................................. Pre 180 

2.12.2.8 Updating Discovery Responses .................................................. Pre 181 

2.12.2.9 Interrogatories ............................................................................. Pre 181 

2.12.3 Discovery Against the Staff ......................................................... Pre 182 

2.12.4 Responses to Discovery Requests ............................................. Pre 184 

2.12.5 Compelling Discovery/Subpoenas .............................................. Pre 186 

2.12.5.1 Compelling Discovery from ACRS and ACRS Consultants ........ Pre 189 

2.12.5.2 Sanctions for Failure to Comply with Discovery Orders .............. Pre 189 

2.12.6 Appeals of Discovery Rulings ..................................................... Pre 191 

2.12.7 Discovery in High-Level Waste Licensing Proceedings .............. Pre 192 

2.12.7.1 Pre-License Application Licensing Board ................................... Pre 192 

2.12.7.2 Licensing Support Network (Formerly Licensing Support 

 System) .................................................................................... Pre 193 

3.0 HEARINGS ................................................................................. H 1 

3.1 Licensing Board ........................................................................ H 1 

3.1.1 General Role/Power of Licensing Board ..................................... H 1 
JUNE 2011 TABLE OF CONTENTS 6 

3.1.1.1 Role and Authority of the Chief Judge ........................................ H 3 

3.1.2 Scope of Jurisdiction of Licensing Board .................................... H 3 

3.1.2.1 Jurisdiction Grant from Commission ........................................... H 3 

3.1.2.1.1 Effect of Commission Decisions/Precedent ................................ H 6 

3.1.2.2 Authority in Construction Permit Proceedings Distinguished 

 from Authority in Operating License Proceedings .................... H 7 

3.1.2.2.A Scope of Authority in Construction Permit Proceedings ............. H 8 

3.1.2.2.B Scope of Authority in Operating License Proceedings ................ H 9 

3.1.2.3 Scope of Authority in Uncontested Proceedings 

 (“Mandatory Hearings”) ............................................................ H 12 

3.1.2.4 Scope of Authority in License Amendment Proceedings ............ H 13 

3.1.2.5 Scope of Authority to Rule on Petitions and Motions .................. H 14 

3.1.2.6 Scope of Authority to Reopen the Record .................................. H 16 

3.1.2.7 Scope of Authority to Rule on Contentions ................................. H 17 

3.1.2.8 Authority of Licensing Board to Raise Sua Sponte Issues .......... H 18 

3.1.2.9 Expedited Proceedings; Timing of Rulings ................................. H 21 

3.1.2.10 Licensing Board’s Relationship with the NRC Staff .................... H 23 

3.1.2.11 Licensing Board’s Relationship with States and Other 

 Agencies (Including the Council on Environmental Quality) .... H 28 

3.1.2.12 Conduct of Hearing by Licensing Board ..................................... H 30 

3.1.2.12.1 Powers/Role of Presiding Officer ................................................ H 32 

3.1.3 Quorum Requirements for Licensing Board Hearing .................. H 34 

3.1.4 Disqualification of a Licensing Board Member ............................ H 34 

3.1.4.1 Motion to Disqualify Adjudicatory Board Member ....................... H 34 

3.1.4.2 Grounds for Disqualification of Adjudicatory Board Member ...... H 36 

3.1.4.3 Improperly Influencing an Adjudicatory Board Decision ............. H 39 

3.1.5 Resignation of a Licensing Board Member ................................. H 39 

3.2 Export Licensing Hearings ...................................................... H 40 

3.2.1 Scope of Export Licensing Hearings ........................................... H 40 

3.2.2 Standing to Intervene in Export License Hearings ...................... H 40 

3.2.3 Hearing Requests ....................................................................... H 40 

3.3 Hearing Scheduling Matters .................................................... H 40 

3.3.1 Scheduling of Hearings ............................................................... H 40 

3.3.1.1 Public Interest Requirements re Hearing Schedule .................... H 43 

3.3.1.2 Convenience of Litigants re Hearing Schedule ........................... H 43 

3.3.1.3 Adjourned Hearings (RESERVED) ............................................. H 43 

3.3.2 Postponement of Hearings ......................................................... H 44 

3.3.2.1 Factors Considered in Hearing Postponement ........................... H 44 

3.3.2.2 Effect of Plant Deferral on Hearing Postponement ..................... H 45 

3.3.2.3 Sudden Absence of ASLB Member at Hearing ........................... H 45 

3.3.2.4 Time Extensions for Case Preparation Before Hearing .............. H 46 

3.3.3 Scheduling Disagreements Among Parties ................................ H 46 

3.3.4 Appeals of Hearing Date Rulings ................................................ H 47 

3.3.5 Location of Hearing (RESERVED) .............................................. H 47 

3.3.5.1 Public Interest Requirements re Hearing 

 Location (RESERVED) ............................................................ H 47 

3.3.5.2 Convenience of Litigants Affecting Hearing Location ................. H 47 

3.3.6 Consolidation of Hearings and of Parties .................................... H 48 

3.3.7 In Camera Hearings .................................................................... H 49 
JUNE 2011 TABLE OF CONTENTS 7 

3.4 Issues for Hearing..................................................................... H 49 

3.4.1 Intervenor’s Contentions – Admissibility at Hearing .................... H 53 

3.4.2 Issues Not Raised by Parties (Also See Section 3.1.2.7) ........... H 55 

3.4.3 Issues Not Addressed by a Party ................................................ H 56 

3.4.4 Separate Hearings on Special Issues ......................................... H 57 

3.4.5 Construction Permit Extension Proceedings ............................... H 57 

3.4.5.1 Scope of Construction Permit Extension Proceedings ............... H 58 

3.4.5.2 Contentions in Construction Permit Extension Proceedings ....... H 60 

3.4.6 Motion to Strike ........................................................................... H 61 

3.4.7 Result of Withdrawal of a Party ................................................... H 61 

3.5 Summary Disposition ............................................................... H 61 

 (Also see Section 5.8.4) 

3.5.1 Applicability of Federal Rules Governing Summary Judgment ... H 61 

3.5.2 Standard for Granting/Denying a Motion for Summary 

 Disposition ............................................................................... H 62 

3.5.3 Burden of Proof with Regard to Summary Disposition Motions .. H 65 

3.5.4 Contents of Motions for/Responses to Summary Disposition ..... H 68 

3.5.5 Time for Filing Motions for Summary Disposition ....................... H 71 

3.5.6 Time for Filing Responses to Summary Disposition Motions ...... H 72 

3.5.7 Role/Power of Licensing Board in Ruling on Summary 

 Disposition Motions .................................................................. H 72 

3.5.7.1 Operating License Hearings ....................................................... H 74 

3.5.7.2 Construction Permit Hearings ..................................................... H 75 

3.5.7.3 Amendments to Existing Licenses .............................................. H 75 

3.5.8 Summary Disposition: Mootness ............................................... H 75 

3.5.9 Contents of Summary Disposition Orders ................................... H 76 

3.5.10 Appeals from Rulings on Summary Disposition .......................... H 76 

 

3.6 Other Dispositive Motions/Failure to State a Claim ............... H 77 

3.7 Attendance at and Participation in Hearings ......................... H 77 

3.8 Burden and Means of Proof ..................................................... H 78 

3.8.1 Duties of Applicant/Licensee ....................................................... H 80 

3.8.2 Intervenor's Contentions – Burden and Means of Proof ............. H 81 

3.8.3 Specific Issues – Means of Proof ................................................ H 82 

3.8.3.1 Exclusion Area Controls .............................................................. H 82 

3.8.3.2 Need for Facility .......................................................................... H 83 

3.8.3.3 Burden and Means of Proof in Interim Licensing Suspension 

 Cases .......................................................................................... H 84 

3.8.3.4 Availability of Uranium Supply .................................................... H 85 

3.8.3.5 Environmental Costs (RESERVED) ............................................ H 85 

3.8.3.5.1 Cost of Withdrawing Farmland from Production ......................... H 85 

 (Also see Section 6.16.6.1.1) 

3.8.3.6 Alternate Sites Under NEPA ....................................................... H 85 

3.8.3.7 Management Capability .............................................................. H 85 

3.9 Burden of Persuasion (Degree of Proof) ................................ H 87 

3.9.1 Environmental Effects Under NEPA ........................................... H 87 
JUNE 2011 TABLE OF CONTENTS 8 

3.10 Stipulations ............................................................................... H 87 

3.11 Official Notice of Facts ............................................................. H 88 

3.12 Evidence .................................................................................... H 90 

3.12.1 Rules of Evidence ....................................................................... H 91 

3.12.1.1 Admissibility of Evidence ............................................................ H 91 

3.12.1.1.1 Admissibility of Hearsay Evidence .............................................. H 92 

3.12.1.2 Hypothetical Questions ............................................................... H 93 

3.12.1.3 Reliance on Scientific Treatises, Newspapers, Periodicals ........ H 93 

3.12.1.4 Off-the-Record Comments .......................................................... H 93 

3.12.1.5 Presumptions and Inferences ..................................................... H 93 

3.12.1.6 Government Documents ............................................................. H 94 

3.12.2 Status of ACRS Letters ............................................................... H 94 

3.12.3 Presentation of Evidence by Intervenors .................................... H 95 

3.12.4 Evidentiary Objections ................................................................ H 95 

3.12.5 Statutory Construction; Weight ................................................... H 95 

3.12.5.1 Due Process .............................................................................. H 96 

3.12.5.2 Bias or Prejudgment, Disqualification ......................................... H 97 

3.13 Witnesses at Hearing ................................................................ H 97 

3.13.1 Compelling Appearance of Witness ............................................ H 98 

3.13.1.1 NRC Staff as Witnesses ............................................................. H 98 

3.13.1.2 ACRS Members as Witnesses .................................................... H 99 

3.13.2 Sequestration of Witnesses ........................................................ H 99 

3.13.3 Board Witnesses ......................................................................... H 99 

3.13.4 Expert Witnesses ........................................................................ H 100 

3.13.4.1 Fees for Expert Witnesses .......................................................... H 102 

3.14 Cross-Examination ................................................................... H 103 

3.14.1 Cross-Examination by Intervenors .............................................. H 104 

3.14.2 Cross-Examination by Experts .................................................... H 106 

3.14.3 Inability to Cross-Examine as Grounds to Reopen ..................... H 106 

3.15 Record of Hearing ..................................................................... H 106 

3.15.1 Supplementing Hearing Record by Affidavits ............................. H 107 

3.15.2 Reopening Hearing Record ........................................................ H 107 

3.15.3 Material Not Contained in Hearing Record ................................. H 109 

3.16 Interlocutory Review via Directed Certification ..................... H 109 

3.17 Licensing Board Findings (See Also “Standards for

 Reversing Licensing Boards” in Section 5.6) ..................... H 109 

3.17.1 Independent Calculations by Licensing Board ............................ H 112 

3.18 Res Judicata and Collateral Estoppel ..................................... H 112 

3.19 Termination of Proceedings .................................................... H 119 

3.19.1 Procedures for Termination ........................................................ H 119 

3.19.2 Post-Termination Authority of Commission ................................. H 120 
JUNE 2011 TABLE OF CONTENTS 9 

3.19.3 Dismissal ..................................................................................... H 120 

3.20 Uncontested Proceedings (Mandatory Hearings) .................. H 120 

4.0 POSTHEARING MATTERS ....................................................... PH 1

4.1 Settlements and Stipulations ................................................... PH 1

4.2 Proposed Findings ................................................................... PH 5

4.2.1 Intervenor’s Right to File Proposed Findings .............................. PH 6 

4.2.2 Failure to File Proposed Findings ............................................... PH 7 

4.3 Initial Decisions......................................................................... PH 8

4.3.1 Reconsideration of Initial Decision .............................................. PH 10 

4.4 Reopening Hearings ................................................................. PH 11

4.4.1 Motions to Reopen Hearing ........................................................ PH 14 

4.4.1.1 Time for Filing Motion to Reopen Hearing .................................. PH 17 

4.4.1.2 Contents of Motion to Reopen Hearing (RESERVED) ............... PH 19 

4.4.2 Grounds for Reopening Hearing ................................................. PH 20 

4.4.3 Reopening Construction Permit Hearings to Address New 

 Generic Issues ......................................................................... PH 25 

4.4.4 Discovery to Obtain Information to Support Reopening 

 of Hearing Is Not Permitted ...................................................... PH 25 

4.5 Motions to Reconsider ............................................................. PH 25

4.6 Procedure on Remand .............................................................. PH 29

4.6.1 Jurisdiction of the Licensing Board on Remand .......................... PH 29 

4.6.2 Jurisdiction of the Board on Remand .......................................... PH 30 

4.6.3 Stays Pending Remand to Licensing Board ............................... PH 30 

4.6.4 Participation of Parties in Remand Proceedings ......................... PH 30 

5.0 APPEALS ................................................................................... App 1 

5.1 Commission Review ................................................................. App 1 

5.1.1 Commission Review Pursuant to 2.341(b) 

 (formerly 2.786(b)) ................................................................... App 1 

5.1.2 Sua Sponte Review .................................................................... App 2 

5.1.3 Effect of Commission’s Denial of Petition for Review ................. App 3 

5.1.4 Commission Review Pursuant to 2.311 (formerly 2.714a) .......... App 4 

5.1.5 Effect of Affirmance as Precedent .............................................. App 6 

5.1.6 Precedential Effect of Unpublished Opinions ............................. App 6 

5.1.7 Precedential Weight Accorded Previous 

 Appeal Board Decisions ........................................................... App 6 

5.2 Who Can Appeal ....................................................................... App 6 

5.2.1 Participating by Filing an Amicus Curiae Brief ............................ App 8 

5.2.2 Aggrieved Parties Can Appeal .................................................... App 10 

5.2.3 Parties’ Opportunity to Be Heard on Appeal ............................... App 11 
JUNE 2011 TABLE OF CONTENTS 10 

5.3 How to Petition for Review ....................................................... App 11 

5.4 Time for Seeking Review .......................................................... App 12 

5.4.1 Variation in Time Limits on Appeals ............................................ App 15 

5.5 Scope of Commission Review ................................................. App 16 

5.5.1 Issues Raised for the First Time on Appeal or in a 

 Petition for Review ................................................................... App 17 

5.5.2 Effect on Appeal of Failure to File Proposed Findings ................ App 19 

5.5.3 Matters Considered on Appeal of Ruling Allowing 

 Late Intervention ...................................................................... App 20 

5.5.4 Consolidation of Appeals on Generic Issues .............................. App 20 

5.6 Standards for Reversing Licensing Board on Findings of

 Fact and Other Matters ......................................................... App 20 

5.6.1 Standards for Reversal of Rulings on Intervention ..................... App 25 

5.7 Stays .......................................................................................... App 26 

5.7.1 Requirements for a Stay Pending Review .................................. App 28 

5.7.1.1 Stays of Initial Decisions ............................................................ App 28 

5.7.1.2 Stays of Board Proceedings, Interlocutory Rulings and 

 Staff Action ............................................................................... App 29 

5.7.1.3 10 C.F.R. § 2.342 (formerly § 2.788) and Virginia Petroleum 

 Jobbers Criteria ........................................................................ App 32 

5.7.1.3.1 Irreparable Injury ......................................................................... App 34 

5.7.1.3.2 Possibility of Success on Merits .................................................. App 37 

5.7.1.3.3 Harm to Other Parties and Where the Public Interest Lies ......... App 38 

5.7.2 Stays Pending Remand to Licensing Board ............................... App 39 

5.7.3 Stays Pending Judicial Review ................................................... App 39 

5.7.4 Stays Pending Remand After Judicial Review ............................ App 39 

5.7.5 Immediate Effectiveness Review of Operating 

 License Decisions .................................................................... App 40 

5.7.6 Stay/Suspension of Ongoing Adjudicatory Proceedings ............. App 41 

5.8 Review as to Specific Matters .................................................. App 41 

5.8.1 Scheduling Orders ...................................................................... App 41 

5.8.2 Discovery Rulings ....................................................................... App 42 

5.8.2.1 Rulings on Discovery Against Non-Parties ................................. App 42 

5.8.2.2 Rulings Curtailing Discovery ....................................................... App 43 

5.8.3 Refusal to Compel Joinder of Parties ......................................... App 43 

5.8.3.1 Order Consolidating Parties ........................................................ App 43 

5.8.4 Order Denying Summary Disposition .......................................... App 43 

 (Also see Section 3.5) 

5.8.5 Procedural Irregularities .............................................................. App 43 

5.8.6 Matters of Recurring Importance ................................................ App 44 

5.8.7 Advisory Decisions on Trial Rulings ............................................ App 44 

5.8.8 Order on Pre-LWA Activities ....................................................... App 44 

5.8.9 Partial Initial Decisions ................................................................ App 44 

5.8.10 Other Licensing Actions .............................................................. App 45 

5.8.11 Evidentiary Rulings ..................................................................... App 45 

5.8.12 Authorization of Construction Permit .......................................... App 46 
JUNE 2011 TABLE OF CONTENTS 11 

5.8.13 Certification of Gaseous Diffusion Plants .................................... App 46 

5.9 Perfecting Appeals ................................................................... App 47 

5.9.1 General Requirements for Petition for Review 

 of an Initial Decision ................................................................. App 47 

5.10 Briefs on Appeal ....................................................................... App 47 

5.10.1 Importance of Brief ...................................................................... App 47 

5.10.2 Time for Submittal of Brief .......................................................... App 48 

5.10.2.1 Time Extensions for Brief ............................................................ App 49 

5.10.2.2 Supplementary or Reply Briefs ................................................... App 49 

5.10.3 Contents of Brief ......................................................................... App 50 

5.10.3.1 Opposing Briefs .......................................................................... App 54 

5.10.3.2 Amicus Curiae Briefs .................................................................. App 54 

5.11 Oral Argument ........................................................................... App 54 

5.11.1 Failure to Appear for Oral Argument ........................................... App 55 

5.11.2 Grounds for Postponement of Oral Argument ............................ App 55 

5.11.3 Oral Argument by Non-Parties .................................................... App 55 

5.12 Interlocutory Review ................................................................. App 55 

5.12.1 Interlocutory Review Disfavored ................................................. App 55 

5.12.2 Criteria for Interlocutory Review .................................................. App 58 

5.12.2.1 Irreparable Harm ......................................................................... App 62 

5.12.2.2 Pervasive and Unusual Effect on the Proceeding ....................... App 64 

5.12.3 Responses Opposing Interlocutory Review ................................ App 67 

5.12.4 Certification of Questions for Interlocutory Review 

 and Referred Rulings .............................................................. App 67 

5.12.4.1 Effect of Subsequent Developments on Motion to Certify .......... App 69 

5.12.4.2 Effect of Directed Certification on Uncertified Issues .................. App 70 

5.12.4.3 Certification of Questions Relating to Restricted Data or 

 National Security Information ................................................... App 70 

5.13 Disqualification of a Commissioner ........................................ App 70 

5.14 Reconsideration by the Commission ...................................... App 71 

 (Also see Section 4.5) 

5.15 Jurisdiction of the NRC to Consider Matters While

 Judicial Review Is Pending ...................................................... App 73 

5.16 Procedure on Remand .............................................................. App 74 

 (Also see Section 4.6) 

5.17 Mootness and Vacatur .............................................................. App 74 

6.0 GENERAL MATTERS ................................................................ GM 1 

6.1 Amendments to Existing Licenses and/or Construction 

 Permits ....................................................................................... GM 1 

6.1.1 Staff Review of Proposed Amendments ..................................... GM 2 
JUNE 2011 TABLE OF CONTENTS 12 

6.1.2 Amendments to Research Reactor Licenses (RESERVED)....... GM 2 

6.1.3 Matters to Be Considered in License Amendment 

 Proceedings ............................................................................ GM 2 

6.1.3.1 Specific Matters Considered in License Amendment 

 Proceedings ............................................................................. GM 2 

6.1.4 Hearing Requirements for License/Permit Amendments ............ GM 3 

6.1.4.1 Notice of Hearing on License/Permit Amendments 

 (RESERVED) ........................................................................... GM 6 

6.1.4.2 Intervention on License/Permit Amendments ............................. GM 6 

6.1.4.3 Summary Disposition Procedures on License/Permit 

 Amendments ............................................................................ GM 6 

6.1.4.4 Matters Considered in Hearings on License Amendments ......... GM 6 

6.1.5 Primary Jurisdiction to Consider License Amendment 

 in Special Hearing .................................................................... GM 8 

6.1.6 Facility Changes Without License Amendments ......................... GM 8 

6.2 Amendments to Construction Permit Applications ............... GM 9 

6.3 Antitrust Considerations .......................................................... GM 9 

6.3.A Application of Antitrust Laws; Market Power ............................... GM 12 

6.3.B Application of Antitrust Laws; Remedial Authority ...................... GM 13 

6.3.1 Consideration of Antitrust Matters After the 

 Construction Permit Stage ....................................................... GM 14 

6.3.1.1 Limitations on Antitrust Review After Issuance 

 of Operating License ................................................................ GM 16 

6.3.2 Intervention in Antitrust Proceedings .......................................... GM 17 

6.3.3 Discovery in Antitrust Proceedings ............................................. GM 18 

6.3.3.1 Discovery Cutoff Dates for Antitrust Proceedings ....................... GM 18 

6.4 Attorney Conduct ...................................................................... GM 19 

6.4.1 Practice Before Commission ....................................................... GM 19 

6.4.2 Disciplinary Matters re Attorneys ................................................ GM 21 

6.4.2.1 Jurisdiction of Special Board re Attorney Discipline .................... GM 22 

6.4.2.2 Procedures in Special Disqualification Hearings re Attorney 

 Conduct .................................................................................... GM 22 

6.4.2.3 Conflict of Interest ....................................................................... GM 23 

6.5 Communications Between Staff/Applicant/Other Parties/

 Adjudicatory Bodies .............................................................. GM 23 

6.5.1 Ex Parte Communications Rule .................................................. GM 24 

6.5.2 “Separation of Functions” Rules ................................................. GM 25 

6.5.3 Telephone Conference Calls ...................................................... GM 25 

6.5.4 Staff-Applicant Communications ................................................. GM 26 

6.5.4.1 Staff Review of Application ......................................................... GM 26 

6.5.4.2 Staff-Applicant Correspondence ................................................. GM 27 

6.5.5 Notice of Relevant Significant Developments ............................. GM 27 

6.5.5.1 Duty to Inform Adjudicatory Board of Significant 

 Developments .......................................................................... GM 27 

6.6 Decommissioning ..................................................................... GM 30 

6.6.1 Decommissioning Plan ............................................................... GM 31 
JUNE 2011 TABLE OF CONTENTS 13 

6.6.1.1 Decommissioning Funding .......................................................... GM 31 

6.7 Early Site Review Procedures ................................................. GM 34 

6.7.1 Scope of Early Site Review ......................................................... GM 34 

6.8 Endangered Species Act .......................................................... GM 35 

6.8.1 Required Findings re Endangered Species Act .......................... GM 35 

6.8.2 Degree of Proof Needed re Endangered Species Act ................ GM 35 

6.9 Financial Qualifications ............................................................ GM 35 

6.10 Generic Issues .......................................................................... GM 40 

6.10.1 Consideration of Generic Issues in Licensing 

 Proceedings ............................................................................. GM 41 

6.10.2 Effect of Unresolved Generic Issues ........................................... GM 42 

6.10.2.1 Effect of Unresolved Generic Issues in Construction 

 Permit Proceedings .................................................................. GM 42 

6.10.2.2 Effect of Unresolved Generic Issues in Operating 

 License Proceedings ................................................................ GM 43 

6.11 Power Reactor License Renewal Proceeding ........................ GM 43 

6.12 Masters in NRC Proceedings ................................................... GM 50 

6.13 SAMA Analysis in Reactor License Renewal ......................... GM 50 

6.14 Materials Licenses .................................................................... GM 52 

6.14.1 Written Presentations in Materials Proceedings ......................... GM 53 

6.14.2 Stays of Material Licensing Proceedings .................................... GM 54 

6.14.3 Scope of Materials Proceedings/Authority of Presiding 

 Officer ...................................................................................... GM 56 

6.14.4 Amendments to Material Licenses .............................................. GM 56 

6.14.5 Materials License – Renewal ...................................................... GM 56 

6.14.6 Termination of Material License .................................................. GM 57 

6.15 Motions in NRC Proceedings ................................................... GM 57 

6.15.1 Form of Motion ............................................................................ GM 58 

6.15.1.1 Consultation Requirement (10 C.F.R. §2.323(b)) ....................... GM 58 

6.15.2 Responses to Motions ................................................................ GM 59 

6.15.2.1 Time for Filing Responses to Motions ......................................... GM 59 

6.15.3 Licensing Board Actions on Motions ........................................... GM 59 

6.16 NEPA Considerations ............................................................... GM 60 

6.16.1 Environmental Impact Statements .............................................. GM 65 

6.16.1.1 Need to Prepare an EIS .............................................................. GM 68 

6.16.1.2 Scope of EIS ............................................................................... GM 74 

6.16.2 Role of EIS .................................................................................. GM 77 

6.16.3 Circumstances Requiring Redrafting of Final 

 Environmental Statement ......................................................... GM 78 

6.16.3.1 Effect of Failure to Comment on Draft Environmental 

 Statement ................................................................................. GM 80 
JUNE 2011 TABLE OF CONTENTS 14 

6.16.3.2 Stays Pending Remand for Inadequate EIS ............................... GM 81 

6.16.4 Alternatives ................................................................................. GM 81 

6.16.4.1 Obviously Superior Standard for Site Selection .......................... GM 85 

6.16.4.2 Standards for Conducting Cost-Benefit Analysis 

 Related to Alternatives ............................................................. GM 86 

6.16.5 Need for Facility .......................................................................... GM 87 

6.16.6 Cost-Benefit Analysis Under NEPA ............................................ GM 88 

6.16.6.1 Consideration of Specific Costs Under NEPA ............................ GM 91 

6.16.6.1.1 Cost of Withdrawing Farmland from Production ......................... GM 91 

 (Also see Section 3.8.3.5.1) 

6.16.6.1.2 Socioeconomic Costs as Affected by Increased 

 Employment and Taxes from Proposed Facility ...................... GM 91 

6.16.7 Consideration of Class 9 Accidents/“Remote and 

 Speculative” Accidents in an EIS ............................................. GM 91 

6.16.8 Power of NRC Under NEPA ....................................................... GM 94 

6.16.8.1 Powers in General ..................................................................... GM 95 

6.16.8.2 Transmission Line Routing ......................................................... GM 96 

6.16.8.3 Pre-LWA Activities/Offsite Activities ............................................ GM 97 

6.16.8.4 Relationship to EPA with Regard to Cooling Systems ................ GM 97 

6.16.8.5 NRC Power Under NEPA re the Federal Water Pollution 

 Control Act ............................................................................... GM 98 

6.16.8.6 Environmental Justice ................................................................. GM 98 

6.16.8.7 Relationship of NRC Environmental Reviews to State Law ........ GM 100 

6.16.8.8 NEPA Disclosure Provisions ....................................................... GM 100 

6.16.9 Spent Fuel Pool Proceedings ..................................................... GM 100 

6.16.10 Certificate of Compliance/Gaseous Diffusion Plant .................... GM 102 

6.16.11 Waste Confidence Rule (NEPA) ................................................. GM 102 

6.16.12 Greenhouse Gases ..................................................................... GM 102 

6.17 NRC Staff ................................................................................... GM 102 

6.17.1 Staff Role in Licensing Proceedings ........................................... GM 102 

6.17.1.1 Staff Demands on Applicant or Licensee .................................... GM 107 

6.17.1.2 Staff Witnesses ........................................................................... GM 108 

6.17.1.3 Posthearing Resolution of Outstanding Matters by the Staff ...... GM 108 

6.17.2 Status of Staff Regulatory Guides (See Section 6.21.3) ............. GM 111 

6.17.3 Status of Staff Position and Working Papers .............................. GM 111 

6.17.4 Status of Standard Review Plan ................................................. GM 111 

6.17.5 Conduct of NRC Employees (RESERVED) ................................ GM 112 

6.18 Orders of Licensing Boards and Presiding Officers ............. GM 112 

6.18.1 Compliance with Board Orders ................................................... GM 112 

6.19 Precedent and Adherence to Past Agency Practice .............. GM 113 

6.20 Pre-Construction Permit Activities ......................................... GM 114 

6.20.1 Pre-LWA Activity ......................................................................... GM 115 

6.20.2 Limited Work Authorization ......................................................... GM 116 

6.20.2.1 LWA Status Pending Remand Proceedings ...............................GM 116 

6.21 Regulations ............................................................................... GM 116 

6.21.1 Compliance with Regulations ...................................................... GM 117 
JUNE 2011 TABLE OF CONTENTS 15 

6.21.2 Commission Policy Statements .................................................. GM 117 

6.21.3 Regulatory Guides and Other Guidance Documents .................. GM 117 

6.21.4 Challenges to Regulations .......................................................... GM 120 

6.21.5 Agency’s Interpretation of Its Own Regulations .......................... GM 122 

6.21.6 General Design Criteria .............................................................. GM 124 

6.21.7 Reporting Requirements ............................................................. GM 126 

6.22 Rulemaking................................................................................ GM 126 

6.22.1 Rulemaking Distinguished from General Policy 

 Statements ............................................................................... GM 127 

6.22.2 Generic Issues and Rulemaking ................................................. GM 127 

6.23 Research Reactors ................................................................... GM 128 

6.24 Disclosure of Information to the Public .................................. GM 128 

6.24.1 Freedom of Information Act Disclosure ....................................... GM 129 

6.24.2 Privacy Act Disclosure (RESERVED) ......................................... GM 131 

6.24.3 Disclosure of Proprietary Information .......................................... GM 131 

6.24.3.1 Protecting Information Where Disclosure Is Sought in 

 an Adjudicatory Proceeding ..................................................... GM 133 

6.24.3.2 Security Plan Information Under 10 C.F.R. § 2.390(d) ............... GM 136 

6.25 Enforcement Proceedings ....................................................... GM 137 

6.25.1 NRC Enforcement Authority ........................................................ GM 137 

6.25.2 Enforcement Procedures ............................................................ GM 138 

6.25.2.1 Due Process ............................................................................... GM 140 

6.25.2.2 Intervention ................................................................................. GM 140 

6.25.3 Petitions for Enforcement Action Under 10 C.F.R. § 2.206 ........ GM 143 

6.25.3.1 Commission Review of Director’s Decisions Under 

 10 C.F.R. § 2.206 ..................................................................... GM 147 

6.25.4 Grounds for Enforcement Orders ................................................ GM 148 

6.25.5 Immediately Effective Orders ...................................................... GM 151 

6.25.5.1 Review of Immediate Effectiveness of Enforcement Order ........ GM 153 

6.25.6 Issues in Enforcement Proceedings ........................................... GM 156 

6.25.7 Burden of Proof ........................................................................... GM 157 

6.25.8 Licensing Board Review of Proposed Sanctions ........................ GM 158 

6.25.9 Stay of Enforcement Proceedings .............................................. GM 159 

6.25.10 Civil Penalty Proceedings ........................................................... GM 161 

6.25.11 Settlement of Enforcement Proceedings .................................... GM 163 

6.25.12 Inspections and Investigations .................................................... GM 163 

6.25.13 False Statements ........................................................................ GM 164 

6.25.14 Independence of Inspector General ............................................ GM 165 

6.25.15 Whistleblower Protection ............................................................ GM 165 

6.26 Stay of Agency Licensing Action – Informal Hearings ......... GM 166 

6.27 (RESERVED) .............................................................................. GM 167 

6.28 Technical Specifications .......................................................... GM 167 

6.29 Termination of Facility Licenses ............................................. GM 169 
JUNE 2011 TABLE OF CONTENTS 16 

6.30 Procedures in Other Types of Hearings ................................. GM 170 

6.30.1 Military or Foreign Affairs Functions ........................................... GM 170 

6.30.2 Import/Export Licensing .............................................................. GM 170 

 (Also see Section 3.4.6) 

6.30.2.1 Jurisdiction of Commission re Export Licensing ......................... GM 172 

6.30.2.2 Export License Criteria ................................................................ GM 172 

6.30.2.3 HEU Export License – Atomic Energy Act .................................. GM 173 

6.30.2.4 Import Licensing .......................................................................... GM 173 

6.30.3 High-Level Repository Waste Licensing ..................................... GM 174 

6.30.3.1 Intervention in the High-Level Waste Proceeding ....................... GM 175 

6.30.3.2 Consideration of Character and Competence in the 

 High-Level Waste Proceeding ................................................. GM 175 

6.30.4 Low-Level Waste Disposal .......................................................... GM 175 

6.30.5 (RESERVED) .............................................................................. GM 176 

6.30.6 Certification of Gaseous Diffusion Plants .................................... GM 176 

6.30.7 Senior Operator License Proceedings ........................................ GM 177 

6.30.8 Subpart K Proceedings ............................................................... GM 177 

6.31 Transfers of Licenses (Directly and Indirectly) ...................... GM 177 

6.31.1 Subpart M Proceedings .............................................................. GM 179 

6.31.2 Standing in License Transfer Proceedings ................................. GM 182 

6.31.3 Scope of License Transfer Proceedings ..................................... GM 185 

6.31.3.1 Consideration of Financial Qualifications .................................... GM 188 

6.31.3.2 Antitrust Considerations .............................................................. GM 190 

6.31.3.3 Need for EIS Preparation ............................................................ GM 191 

6.31.3.4 Concurrent Proceedings ............................................................. GM 191 

6.31.3.5 Decommissioning ........................................................................ GM 192 

6.31.4 Motions for Stay/Suspension of Proceedings ............................. GM 194 

6.32 Television and Still Camera Coverage of NRC 

 Proceedings .............................................................................. GM 195 

6.33 National Historic Preservation Act Requirements ................. GM 195 

6.34 Trust Responsibility ................................................................. GM 196 

6.35 Native American Graves Protection and Repatriation

 Act Requirements ..................................................................... GM 196 

6.36 Hybrid Procedures Under Subpart K ...................................... GM 197 

 (Also see Section 6.16.9) 

6.37 Agreement State Issues ........................................................... GM 200 

6.38 Generic Security Issues ........................................................... GM 200 

6.39 Deferred Plant Status ............................................................... GM 201 
JUNE 2011 TABLE OF CONTENTS 17 

CASE HISTORY INDEX 

CFR INDEX 

STATUTES INDEX
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 i

UNITED STATES NUCLEAR REGULATORY COMMISSION 

STAFF PRACTICE AND PROCEDURE DIGEST 

(The March 2011 update covers Commission, Appeal 

Board, and Licensing Board Decisions issued from 

July 1972 through September 2010) 

NOTE TO USERS 

This is the sixteenth edition of the “United States Nuclear Regulatory Commission Staff Practice 

and Procedure Digest.” It contains a digest of significant decisions of the Commission, the 

Atomic Safety and Licensing Appeal Board Panel, and the Atomic Safety and Licensing Board 

Panel issued during the period from July 1, 1972, to September 2010, which interpret the NRC’s 

Rules of Practice in 10 C.F.R. Part 2. Although the Appeal Board Panel was abolished in 1991, 

Appeal Board precedent may still be cited, to the extent it is consistent with more recent case 

law and the current rules of practice. This edition of the Digest replaces the earlier editions and 

revisions and includes appropriate changes reflecting the amendments to the Rules of Practice. 

This edition updates the newly added section on the notice and procedures associated with 

requests for access to Sensitive Unclassified Nonsafeguards Information (SUNSI) and 

Safeguards Information (SGI). This update also adds sections covering the topics of deferred 

plant status and good cause hearings relating to extensions of construction permit (CP) 

completion dates and reinstatement of construction permits. 

Users of the Digest should recall that the Commission adopted a comprehensive revision to its 

rules of practice in 2004. See Changes to Adjudicatory Process, 69 Fed. Reg. 2,182 

(Jan. 14, 2004), corrections issued 69 Fed. Reg. 25,997 (May 11, 2004). Petitions for review 

challenging the new rules were denied in Citizens Awareness, Inc. v. United States, 

391 F.3d 338 (1st Cir. 2004). Although our Staff has worked diligently to conform the Digest to 

the revised Rules of Practice, practitioners should ensure that precedent cited in the Digest is 

consistent with the new rules. The NRC has created several tools to aid practitioners in 

understanding and applying the revised Part 2. These user tools can be found at the NRC Web 

site at http://www.nrc.gov/about-nrc/regulatory/adjudicatory/part2revisions.html. These tools are 

provided for informational purposes only and are not a replacement for the regulations in 

10 C.F.R. Part 2. 

Practitioners should also be mindful of the adoption of two additional rulemakings that affect the 

Rules of Practice: 

Use of Electronic Submissions in Agency Hearings: On August 28, 2007 (72 Fed. Reg. 49,139), 

the NRC published an amendment, effective October 15, 2007, to require the use of electronic 

submissions in all agency hearings, consistent with the existing practice for the high-level 

radioactive waste repository application (which is covered under a separate set of regulations). 

The amendments require the electronic transmission of electronic documents in submissions 

made to the NRC’s adjudicatory boards. Although exceptions to these requirements are 

established to allow paper filings in limited circumstances, the NRC maintains a strong 
 ii

preference for fully electronic filing and service. The final rule builds upon prior NRC rules and 

developments in the federal courts regarding the use of electronic submissions. 

Licenses, Certification and Approvals for Nuclear Power Plants: On August 28, 2007 

(72 Fed. Reg. 49,352), the NRC published an amendment to its regulations, effective 

September 27, 2007, to revise the provisions applicable to the licensing and approval processes 

for nuclear power plants (i.e., early site permit, standard design approval, standard design 

certification, combined license, and manufacturing license). These amendments clarify the 

applicability of various requirements to each of the licensing processes by making necessary 

conforming amendments throughout the NRC’s regulations, including Part 2, to enhance the 

NRC’s regulatory effectiveness and efficiency in implementing its licensing and approval 

processes. 

The Digest includes the text of several Commission policy statements bearing directly on 

adjudicatory practice. We have included the text of the Commission’s 2008 Statement of Policy 

on Conduct of New Reactor Licensing Proceedings, CLI-08-07, 73 Fed. Reg. 20,963 

(April 17, 2008). Although this and other policy statements are important expressions of 

Commission policy on the conduct of adjudicatory proceedings, practitioners should be sure to 

follow the specific provisions of the rules of practice in 10 C.F.R. Part 2. 

The Digest is roughly structured in accordance with the chronological sequence of the nuclear 

facility licensing process as set forth in 10 C.F.R. Part 2. Those decisions and subject matter 

which did not fit easily into that structure are dealt with in a section on “general matters.” Where 

appropriate, particular decisions are indexed under more than one heading. Some topical 

headings contain no decision citations or discussion. It is anticipated that future updates to the 

Digest will utilize these headings. 

Persons using this Digest are placed on notice that it may not be used as an authoritative 

citation in support of any positions before the Commission or any of its adjudicatory tribunals. 

Persons using this Digest are also placed on notice that it is intended for use only as an initial 

research tool; that it may, and likely does, contain errors; and that the user should not rely on 

the Digest’s analyses and interpretations, but must read, analyze and rely on the user’s own 

analysis of the cited Commission, Appeal Board and Licensing Board decisions. Neither the 

United States Nuclear Regulatory Commission, nor any of its employees, makes any expressed 

or implied warranty or assumes liability or responsibility for the accuracy, completeness or 

usefulness of any material presented in the Digest. 

This current edition of the Digest was prepared by the Staff of the Office of the General 

Counsel. I want to acknowledge particularly the contribution to this effort of Office of the 

General Counsel Deputy Assistant General Counsel Mary Spencer and paralegal Brian Newell 

in guiding this revision of the Digest. They were ably assisted by attorneys on our staff; 

including Catherine Kanatas, Emily Monteith, Maxwell Smith, Sara Kirkwood, Brett Klukan, 

Jessica Bielecki and Dan Lenehan. Theresa Mayberry assisted in preparing the manuscript for 

publication. We hope that the Digest will prove to be as useful to the members of the public as 

it has been to the members of the Office of the General Counsel.
 iii

We hope to publish an update to the Digest on an annual basis. Users of the Digest are 

encouraged to provide us any comments or suggestions that would improve its usefulness. You 

may send comments, suggestions or corrections to my attention. 

 Stephen G. Burns 

 General Counsel 

 Office of the General Counsel 

 U.S. Nuclear Regulatory Commission 

 Washington, DC 20555 

 E-mail: Stephen.Burns@nrc.gov

 

 May 2011 
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41872 Federal Register/Vol. 63, No. 150/Wednesday, August 5, 1998/Notices

NUCLEAR REGULATORY

COMMISSION

Policy on Conduct Of Adjudicatory

Proceedings; Policy Statement

AGENCY: Nuclear Regulatory

Commission.

ACTION: Policy statement: update.

SUMMARY: The Nuclear Regulatory

Commission (Commission) has

reassessed and updated its policy on the

conduct of adjudicatory proceedings in

view of the poten tial institu tion of a

number of proceedings in the next few

years to consider applications to renew

reactor operating licenses, to reflect

restructuring in the electric utility

industry, and to license waste storage

facilities.

DATES: This policy statemen t is effective

on August 5, 1998, while comments are

being received. Comments are due on or

before October 5, 1998.

ADDRESSES: Send written comments to:

The Secretary of the Commission, U.S.

Nuclear Regulatory Commission,

Washington, DC 20555, ATTN:

Rulemakings and Adjudications Staff.

Hand deliver comments to: 11555

Rockville Pike, Rockville, Maryland,

between 7:45 am and 4:15 pm, Federal

workdays. Copies of comments received

may be examined at the NRC Public

Document Room, 2120 L Street, NW.

(Lower Level), Washington, DC.

FOR FURTHER INFORMATION CONTACT:

Robert M. Weisman, Litigation Attorney,

U.S. Nuclear Regulatory Commission,

Washington, DC 20555, (301) 415-1696.

JUNE 2011 POLICY STATEMENTS 1
Federal Register/Vol. 63, No. 150/Wednesday, August 5, 1998/Notices 41873

Statement of Policy on Conduct of

Adjudicatory Proceedings

[CLI-98-12]

I. Introduction

As part of broader efforts to improve

the effectiveness of the agency's

programs and processes, the

Commission has critically reassessed its

practices and procedures for conducting

adjudicatory proceedings within the

framework of its existing Rules of

Practice in 10 CFR Part 2, primarily

Subpart G. With the potential institution

ofa number of proceedings in the next

few years to consider applications to

renew reactor operating licenses, to

reflect restructuring in the electric

utility industry, and to license waste

storage facilities, such assessment is

particularly appropriate to ensure that

agency proceedings are conducted

efficiently and focus on issues germane

to the proposed actions under

consideration. In its review, the

Commission has considered its existing

policies and rules governing

adjudicatory proceedings, recent

experience and criticism of agency

proceedings, and innovative techniques

used by our own hearing boards and

presiding officers and by other

tribunals. Although current rules and

policies provide means to achieve a

prompt and fair resolution of

proceedings, the Commission is

directing its hearing boards and

presiding officers to employ certain

measures described in this policy

statement to ensure the efficient

conduct of proceedings.

The Commission continues to endorse

the guidance in its current policy,

issued in 1981, on the conduct of

adjudicatory proceedings. Statement of

Policy on Conduct of Licensing

Proceedings, CLI-8l-8,13 NRC 452

(May 20,1981); 46 FR 28533 (May 27,

1981). The 1981 policy statement

provided guidance to the Atomic Safety

and Licensing Boards (licensing boards)

on the use of tools, such as the

establishmen t and adherence to

reasonable schedules and discovery

management, intended to reduce the

time for completing licensing

proceedings while ensuring that

hearings were fair and produced

adequate records. Now, as then, the

Commission's objectives are to provide

a fair hearing process, to avoid

unnecessary delays in the NRC's review

and hearing processes, and to produce

an informed adjudicatory record that

supports agency decision making on

matters related to the NRC's

responsibilities for protecting public

health and safety, the common defense

and security, and the environment. In

this context, the opportunity for hearing

should be a meaningful one that focuses

on genuine issues and real disputes

regarding agency actions subject to

adjudication. By the same token,

however, applicants for a license are

also entitled to a prompt resolution of

disputes concerning their applications.

The Commission emphasizes its

expectation that the boards will enforce

adherence to the hearing procedures set

forth in the Commission's Rules of

Practice in 10 CFR Part 2, as in terpreted

by the Commission. In addition, the

Commission has identified certain

specific approaches for its boards to

consider implementing in individual

proceedings, if appropriate, to reduce

the time for completing licensing and

other proceedings. The measures

suggested in this policy statement can

be accomplished within the framework

of the Commission's existing Rules of

Practice. The Commission may consider

further changes to the Rules of Practice

as appropriate to enable additional

improvements to the adjudicatory

process.

II. Specific Guidance

Current adjudicatory procedures and

policies provide a latitude to the

Commission, its licensing boards and

presiding officers to instill discipline in

the hearing process and ensure a prompt

yet fair resolution of contested issues in

adjudicatory proceedings. In the 1981

policy statemen t, the Commission

encouraged licensing boards to use a

number of techniques for effective case

management including: setting

reasonable schedules for proceedings;

consolidating parties; encouraging

negotiation and settlement conferences;

carefully managing and supervising

discovery; issuing timely rulings on

prehearing matters; requiring trial briefs,

pre-filed testimony, and crossexamination plans; and issuing initial

decisions as soon as practicable after the

parties file proposed findings of fact and

conclusions of law. Licensing boards

and presiding officers in curren t NRC

adjudications use many of these

techniques, and should continue to do

so.

As set forth below, the Commission

has identified several of these

techniques, as applied in the context of

the current Rules of Practice in 10 CFR

Part 2, as well as variations in procedure

permitted under the current Rules of

Practice that licensing boards should

apply to proceedings. The Commission

also intends to exercise its inherent

supervisory authority, including its

power to assume part or all of the

functions of the presiding officer in a

given adjudication, as appropriate in the

context of a particular proceeding. See,

e.g., Public Service Co. of New

Hampshire (Seabrook Station, Units 1

and 2), CLI-90-3, 31 NRC 219,229

(1990). The Commission intends to

promptly respond to adjudicatory

matters placed before it, and such

matters should ordinarily take priority

over other actions before the

Commissioners.

1. Hearing Schedules

The Commission expects licensing

boards to establish schedules for

promptly deciding the issues before

them, with due regard to the complexity

of the contested issues and the interests

of the parties. The Commission's

regulations in 10 CFR2.718 provide

licensing boards all powers necessary to

regulate the course of proceedings,

including the authority to set schedules,

resolve discovery dispu tes, and take

other action appropriate to avoid delay.

Powers granted under § 2.718 are

su fficien t for licen sing board s to con trol

the su pplemen tation of petitions for

leave to intervene or requests for

hearing, the filing of contentions,

discovery, dispositive motions,

hearings, and the submission of findings

of fact and conclusions oflaw.

Many provisions in Part 2 establish

schedules for various filings, which can

be varied "as otherwise ordered by the

presiding officer." Boards should

exercise their authority under these

options and 10 CFR2.718 to shorten the

filing and response times set forth in the

regulations to the extent practical in a

specific proceeding. In addition, where

such latitude is not explicitly afforded,

as well as in instances in which

sequential (rather than simultaneous)

filings are provided for, boards should

explore with the parties all reasonable

approaches to reduce response times

and to provide for simultaneous filing of

documents.

Although current regulations do not

specifically address service by

electronic means, licensing boards, as

they have in other proceedings, should

establish procedures for electronic filing

with appropriate filing deadlines, unless

doing so would significantly deprive a

party of an opportunity to participate

meaningfully in the proceeding. Other

expedited forms of service of documents

in proceedings may also be appropriate.

The Commission encourages the

licensing boards to consider the use of

new technologies to expedite

proceedings as those technologies

become available.

Boards should forego the use of

motions for summary disposition,

except upon a written finding that such

JUNE 2011 POLICY STATEMENTS 2
41874 Federal Register/Vol. 63, No. 150/Wednesday, August 5, 1998/Notices

a motion will likely substantially reduce

the number of issues to be decided, or

otherwise expedite the proceeding. In

addition, any evidentiary hearing

should not commence before

completion of the staff's Safety

Evaluation Report (SER) or Final

Environmental Statement (FES)

regarding an application, unless the

presiding officer finds that beginning

earlier, e.g., by starting the hearing with

respect to safety issues prior to issuance

of the SER, will indeed expedite the

proceeding, taking into account the

effect of going forward on the staff's

ability to complete its evaluations in a

timely manner. Boards are strongly

encouraged to expedite the issu ance of

interlocutory rulings. The Commission

further strongly encourages presiding

officers to issue decisions within 60

days after the parties file the last

pleadings permitted by the board's

schedule for the proceeding.

Appointment of additional presiding

officers or licensing boards to preside

over discrete issues simultaneously in a

proceeding has the potential to expedite

the process, and the Chief

Administrative Judge of the Atomic

Safety and Licensing Board Panel

(ASLBP) should consider this measure

under appropriate circumstances. In

doing so, however, the Commission

expects the Chief Administrative Judge

to exercise the authority to establish

multiple boards only if: (1) the

proceeding in volves discrete and

severable issues; (2) the issues can be

more expeditiously handled by multiple

boards than by a single board; and (3)

the multiple boards can conduct the

proceeding in a manner that will not

unduly burden the parties. Private Fuel

Storage, L.L.C. (Private Fuel Storage

Facility), CLI-98-7, 47 NRC __ (1998).

The Commission itself may set

milestones for the completion of

proceedings. If the Commission sets

milestones in a particular proceeding

and the board determines that any

single milestone could be missed by

more than 30 days, the licensing board

must promptly so inform the

Commission in writing. The board

should explain why the milestone

cannot be met and what measures the

board will take insofar as is possible to

restore the proceeding to the overall

schedule.

2. Parties' Obligations

Although the Commission expects its

licensing boards to set and adhere to

reasonable schedules for the various

steps in the hearing process, the

Commission recognizes that the boards

will be unable to achieve the objectives

of this policy statement unless the

parties satisfy their obligations. The

parties to a proceeding, therefore, are

expected to adhere to the time frames

specified in the Rules of Practice in 10

CFR Part 2 for filing and the scheduling

orders in the proceeding. As set forth in

the 1981 policy statement, the licensing

boards are expected to take appropriate

actions to enforce compliance with

these schedules. The Commission, of

course, recognizes that the boards may

grant extensions of time under some

circumstances, but this should be done

only when warranted by unavoidable

and extreme circumstances.

Parties are also obligated in their

filings before the board 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, citation to the

record. Failure to do so may result in

material being stricken from the record

or, in extreme circumstances, in a party

being dismissed.

3. Contentions

Currently, in proceedings governed by

the provisions of Subpart G, 10 CFR

2.7l4(b)(2)(iii) requires that a petitioner

for intervention shall provide sufficient

information to show that a genuine

dispute exists with the applicant on a

material issue of law or fact. 1 The

Commission has stated that a board may

appropriately view a petitioner's

support for its contention in a light that

is favorable to the petitioner, but the

board cannot do so by ignoring the

requirements set forth in § 2.7l4(b)(2).

Arizona Public Service Co. (Palo Verde

Nuclear Generating Station, Units 1,2,

and 3), CLI-9l-l2, 34 NRC 149,155

(1991). The Commission re-emphasizes

that licensing boards should continue to

require adherence to § 2.7l4(b)(2), and

that the burden of coming forward with

admissible contentions is on their

proponen t. A con ten tion 's proponen t,

not the licensing board, is responsible

for formulating the contention and

providing the necessary information to

satisfy the basis requirement for the

admission of contentions in 10 CFR

2.7l4(b)(2). The scope of a proceeding,

and, as a consequence, the scope of

contentions that may be admitted, is

limited by the nature of the application

and pertinent Commission regulations.

For example, with respect to license

1 "[A]t the contention filing stager,] the factual

support necessary to show that a genuine dispute

exists need not be in affidavit or formal evidentiary

form and need not be of the quality necessary to

withstand a summary disposition motion." Rules of

Practice for Domestic Licensing ProceedingsProcedural Changes in the Hearing Process, Final

Rule, 54 FR 33168, 33171 (Aug. 11, 1989).

renewal, under the governing

regulations in 10 CFR Part 54, the

review of license renewal applications

is confined to matters relevant to the

extended period of operation requested

by the applican t. The safety review is

limited to the plant systems, structures,

and components (as delineated in 10

CFR 54.4) that will require an aging

management review for the period of

extended operation or are subject to an

evalu ation of time-limited aging

analyses. See 10 CFR 54.2l(a) and (c),

54.29, and 54.30. In addition, the review

of en vironmen tal issues is limited by

rule by the generic findings in NUREG1427, "Generic Environmental Impact

Statement (GElS) for License Renewal of

Nuclear Plants." See 10 CFR 55.7l(d)

and 51.95(c).

Under the Commission's Rules of

Practice, a licensing board may consider

matters on its motion only where it

finds that a serious safety,

environmental, or common defense and

security matter exists. 10 CFR 2.760a.

Such authority is to be exercised only in

extraordinary circumstances. If a board

decides to raise matters on its own

initiative, a copy of its ruling, setting

forth in general terms its reasons, must

be transmitted to the Commission and

the General Counsel. Texas Utilities

Generating Co. (Comanche Peak Steam

Electric Station, Units 1 and 2), CLI-8l24,14 NRC 614 (1981). The board may

not proceed further with sua sponte

issues absen t the Commission's

approval. The scope of a particular

proceeding is limited to the scope of the

admitted contentions and any issues the

Commission au thorizes the board to

raise su a spon teo

Currently, 10 CFR2.7l4a allows a

party to appeal a ruling on contentions

only if (a) the order wholly denies a

petition for leave to intervene (i.e., the

order denies the petitioner's standing or

the admission of all of a petitioner's

contentions) or (b) a party other than the

petitioner alleges that a petition for

leave to intervene or a request for a

hearing should have been wholly

denied. Although the regulation reflects

the Commission's general policy to

minimize interlocutory review, under

this practice, some novel issues that

could benefit from early Commission

review will not be presen ted to the

Commission. For example, matters of

first impression involving interpretation

of 10 CFR Part 54 may arise as the staff

and licensing board begin considering

applications for renewal of power

reactor operating licenses. Accordingly,

the Commission encourages the

licensing boards to refer rulings or

certify questions on proposed

contentions involving novel issues to

JUNE 2011 POLICY STATEMENTS 3
Federal Register/Vol. 63, No. 150/Wednesday, August 5, 1998/Notices 41875

the Commission in accordance with 10

CFR 2.730(f) early in the proceeding. In

addition, boards are encouraged to

certify novel legal or policy questions

related to admitted issues to the

Commission as early as possible in the

proceeding. The Commission may also

exercise its authority to direct

certification of such particular questions

under 10 CFR 2.7l8(i). The

Commission, however, will evaluate any

matter put before it to ensure that

in terlocu tory review is w arran ted.

4. Discovery Management

Efficien t managemen t of the pre-trial

discovery process is critical to the

overall progress of a proceeding.

Becau se a great deal of information on

a particular application is routinely

placed in the agency's public document

rooms, Commission regulations already

limit discovery against the staff. See,

e.g.,lO CFR 2.720(h), 2.744. Under the

existing practice, however, the staff

frequently agrees to discovery without

waiving its rights to object to discovery

under the rules, and refers any

discovery requests it finds objectionable

to the board for resolu tion. This practice

remains acceptable.

Application in a particular case of

procedures similar to provisions in the

1993 amendments to Rule 26 of the

Federal Rules of Civil Procedure or

informal discovery can improve the

efficiency of the discovery process

among other parties. The 1993

amendments to Rule 26 provide, in part,

that a party shall provide certain

information to other parties without

waiting for a discovery request. This

information includes the names and

addresses, if known, of individu als

likely to have discoverable information

relevan t to dispu ted facts and copies or

descriptions, including location, of all

documents or tangible things in the

possession or control of the party that

are relevant to the disputed facts. The

Commission expects the licensing

boards to order similar disclosure (and

pertinent updates) if appropriate in the

circumstances of individual

proceedings. With regard to the staff,

such orders shall provide only that the

staff identify the witnesses whose

testimony the staff intends to present at

hearing. The licensing boards should

also consider requiring the parties to

specify the issues for which discovery is

necessary, if this may narrow the issues

requiring discovery.

Upon the board's completion of

rulings on contentions, the staff will

establish a case file con taining the

application and any amendments to it,

and, as relevant to the application, any

NRC report and any correspondence

between the applican t and the NRC.

Such a case file should be treated in the

same manner as a hearing file

established pursuant to 10 CFR 2.l23l.

Accordingly, the staff should make the

case file available to all parties and

should periodically update it.

Except for establishmen t of the case

file, generally the licensing board

should suspend discovery against the

staff until the staff issu es its review

documents regarding the application.

Unless the presiding officer has found

that starting discovery against the staff

before the staff's review documents are

issued will expedite the hearing,

discovery against the staff on safety

issues may commence upon issuance of

the SER, and discovery on

environmental issues upon issuance of

the FES. Upon issuance of an SER or

FES regarding an application, and

consistent with such limitations as may

be appropriate to protect proprietary or

other properly withheld information,

the staff should update the case file to

include the SER and FES and any

supporting documents relied upon in

the SER or FES not already included in

the file.

The foregoing procedures should

allow the boards to set reasonable

bounds and schedules for any remaining

discovery, e.g., by limiting the number

of rounds of in terrogatories or

depositions or the time for completion

of discovery, and thereby reduce the

time spen t in the prehearing stage of the

hearing process. In particular, the board

should allow only a single round of

discovery regarding admitted

contentions related to the SER or the

FES, and the discovery respective to

each document should commence

shortly after its issuance.

III. Conclusion

The Commission reiterates its longstanding commitment to the expeditious

completion of adjudicatory proceedings

while still ensuring that hearings are fair

and produce an adequate record for

decision. The Commission intends to

monitor its proceedings to ensure that

they are being concluded in a fair and

timely fashion. The Commission will

take action in individual proceedings, as

appropriate, to provide guidance to the

boards and parties and to decide issues

in the interest of a prompt and effective

resolution of the matters set for

adjudication.

Dated at Rockville, Maryland, this 28th day

of July, 1998.

For the Nuclear Regulatory Commission.

Annette Vietti-Cook,

Assistant Secretary ofthe Commission.

[FR Doc. 98-20781 Filed 8-4-98; 8:45 am]

BILLING CODE 7590-{)1-P

JUNE 2011 POLICY STATEMENTS 4
4294

[7590-01]

CAMERA ,COVERAGE OF HEARINGS BEFORE

ATOMIC SAFETY AND LICENSING BOARDS

AND ATOMIC SAFETY AND LICENSING

APPEAL BQARDS

General Statement of Policy

The Nuclear RegllIatory Commission ' has considered requests from television stations and newspapers to permit

the use of cameras during proceedings before Atomic Safety and Licensing

Boards and Atomic Safety and Licensing Appeal Boards. In the past the

NRC has permitted cameras to be used

only before and after adjudicatory s'essions and during recesses. The Commission has decided that; on a trial

basis, it will permit the use of television and still cameras by accredited

news media under certain conditions.

Cameras may be used by news media

during hearings and' related public

proceedings before Atomic Safety and

Licensing Boards and Atomic Safety and Licensing Appeal Boards provided they do not require additional lighting

beyond that required for the conduct

of.the proceeding and are stationed at

a fixed position within the hearing

room throughout the course of the

proceeding. It will continue to be the ' practice, of the hearing and appeal

NOTICES

boards to use Federal or State court

rooms when these facilities are available, and in such cases the policy of

those courts in regard to the use of

cameras will be observed. ' The Commission plans to reassess

this policy in about six months after

its hearing and appeal boards ha.ve

had sufficient experience with camera

coverage to determine whether it can

be carried out without disruption to

the proceeding or unacceptable distraction to the participants.

Dated at Washington, D.C., this27th day of January 1978.

For the Nuclear Regulatory Commission.

SAMUEL J. CHIL,

Secretary ofthe Commission.

[FR Doc. 78-2893 Filed 1-31-78; 8:45 am]

FEDERAL REGISTER, VOL 43, NO. 22-VlEDNESDAY, FEBRUARY 1, 1978

JUNE 2011 POLICY STATEMENTS 5
36032 Federal Register I Vol. 49, No. 179 I Thursday, September 13, 1984 I Notices

-

NUCLEAR REGULATORY

COMMISSION

Statement of Polley; Investigations,

Inspections, and Adjudicatory

Proceedings

On August 5, 1983, the Commission set

forth mterlm procedures for handling

I

conflicts between the NRC's

responsibility to disclose mformation to

adjudicatory boards and parties, and the

NRC's need to protect mvestigative

material from premature public

disclosure. "Statement of PolicyInvestigations and Adjudicatory

Proceedings," 48 FR 36358 (August 10,

1983).

Those mterim procedures called for

the NRC staff or Office ofInvestigations

(01), when it felt disclosure of

mformation to an adjudicatory board

was reqUired but that unrestrIcted

disclosure could comprOmIse an mspection or mvestigation, to present

the Information and its concerns about

disclosure to the board In camera,

without disclosure of the substance of

the Information to the other parties. A

board decISIon to disclose the

Inforntation to the parties was

appealable to the COmmISSiOn, and the

board was not to order disclosure until

the COmmIssion addressed the matter.

That Statement of Policy was to

remam m effect until the Commission

received and took action on the

recommendations of an mternal NRC

task force established to develop

guidelines for reconciling these conflicts m mdividual cases. The Commission m

that Statement also requested public

comments on the propriety and

desIrability of exparte In camera

presentation ofinformation to a board,

and suggestions for any better

alternatives.

The Task·Force submitted its report to

the COmmISSion on December 30, 1983.

A copy of that report will bl!'placed m the Commission's Public Document

Room. The Task Force approved the

prmCIples discussed m the

COmmISSIOn's earlier Statement of

Policy, and made several

recommendations mtended to derme

specifically the responsibilities of the

boards. the staff, and 01 m presenting

disclosure Issues for resolution.

The Task Force recommended that the

final Policy Statement explam that full

disclosure of material mformation to

adjudicatory boards and the parties IS

the general rule, but that some conflicts

between the duty to disclose and the

need to protect Information will be

mevitable. The Task Force further

recommended that Issues regarding

disclosure to the parties be mitially

determIned by the adjudicatory boards

with prOVISIOn for expedited appellate

reVIew, and that procedures for the

resolution ofsuch conflicts be

established by rule. Finally, the Task

Force suggested that eXIsting board

notification procedures should remam unaffected by the Policy Statement, and

that those procedures and CommIssion

gUidelines for disclosure of mformatlon

concermng mvestigations and

mspections should apply to all NRC

offices. Those recommendations have

been mcorporated m thIS Statement.

In addition, two comments were

submitted by members of the public.

One commenter stated that the

withholding ofinformation from public

disclosure should be confined to the

mlmmum essential to avoid

compromlsmg enforcement acllons, and

that approprIate representatives of each

party should be allowed to participate

under suitable protective orders in any

In camera proceeding except In the 1110st

exceptional cases.

The other commenter maIntained that

an In camera presentation to the board

with only one party present IS

undeSIrable and VIOlates the ex parte

rule. That commenter suggested an

alternative of havmg the attorneys or authorIzed representatives of parties

who have SIgned a protective agreement

present at any In camera presentation,

with appropriate sanctions for VIOlating

the protective agreement.l

The CommIssIon, after considering

these comments and the report of the

Task Force, has deCIded that it would be

appropriate, m order to better explain

the CommIssIon's policy m this area, to

prOVIde the follOWIng explanation of the

conflict between the duty to disclose

mvestigation or Inspection mformation

to the boards and parties and the need

to protect that mformation:

All parties m NRp adjudicatory

proceedings, including the NRC staff,

have a duty to disclose to the boards

and other parties all new mformation

they acqUire whICh IS considered

material and relevant to any issue In

controversy m the proceeding. Such

disclosure IS reqUired to allow full

resolution of all Issues in the proceeding.

The COmmISSIOn expects all NRC oIIlces

to utilize procedures wmch will assure

prompt and approprIate action to fulfill

thIS responsibility.

However, the CommIssIon recognizes

that there may be conflicts between this

responsibility to prOVIde the boards and

parties with mformation and an lllvestigating or lllspecting oIIlce's need

to aVOId public disclosure for either or

both of two reasons: (1) To avoid

I Both comments also Included suggestions

regarding mailers beyond the scope of this Polley

Statement. which is concerned only with

establishmg a procedure to handle connlcts

between the duty to disclose Information 10 the

boards and parties and the need to protect that

information. For instance, one suggestion was Ihat

the NRC impose a more stringent standard in

deCiding whether Information warrants a board

notification. Another recommended that the NRC

Improve the quality ofIts Investigations.

JUNE 2011 POLICY STATEMENTS 6
Federal Register I Vol. 49. No. 179 I Thursday. September 13. 1984 / Notices 36033

comprmnIsing an .ongomg illvestigation

ormspection;:and (2) to protect

confidential.sources."The nnportance of

protectingmformation for either of these

reasons:canin approprIate

crrcumstances be as great as the

nnportance of disclosIng the mformation

to the boards and parties.

With regard to the firstreason.

aVOIding -compromIse of an investigation

ormspection, itis important to mformed

licensmg .decisions that NRC inspections

and,investigations are conducted so that

all relevantInformation IS gathered for

appropnate :evaluation.Release of

mvestigative malerial to tbe subject of

an mvestigation before the completion

oLthe investigation could adversely

affect the NRC's ability to complete that

mvestigationfully and adequately. The

subject, upon discovmg what evidence

the NRCnad already acqurred and the

direction beIng taken by the NRC

mvestigation. nught attempt to alter or

limit the :direction or the nature or

availability offurther statements or

eVIdence,and prevent NRC from

learmng the facts. The failure to

ascertam:albelevant facts could itself

result milie NRC makIng an umnformed

licensing 'deCISion. However, the need to

protect mformation developed ill

illvestigations or mspections usually

ends "Dnce fuemvestigation or

mspection IS 'Completed and evaluated

for possible enforcement action.

The second reason for not disclosmg

mvestigative materIal-to protect

confidentialsources-has a different

baSIS. IndiVIdualssometimes present

safety concerns 10 the NRC only after

beIng assured that therr mdiVIdual

Identity will be kept confidential. ThIs

desrre for confidentially may arIse for a

number ofreasons, mcluding the

possibility .ofharassment ahd

retaliation.:Confidentialsources are a

valuable asseUo NRC mspections and

mvestigations. ReleaSIng names to the

partiesin an adjudication after

prOmIsmg confidentially to sources

wDJIld-be delnmentalto the NRC's

overallmspection and mvestigation

actiritieS because other mdividuals may

be reluctantto hnng mformation to the

NRC. However, the need to protect

confidential sources does not end when

the mvestigation .or mspection IS

completed and evaluated for possible

enforcement action.

By this Policy Statement, ilie

COmmISSIOn IS not attempting to resolve

the coriflict that may anse in each case

between the duty to disclose

Information to'the boards and parties

and the need to protect that Information

or its source. The resolution of actual

conflicts musl be .deCIded on the merits

of each mdi\'ldual case. However. the

Comnusslon does note that as a general

rule it favors full disclosure to Uw

boards and parties. that mfonmdion

should be protected only when

necessary, and that any limits on

disclosure to the parties should be

limited in both scope and duration to the

mmnnum necessary to achIeve the

purposes of the non·disclosure policy.

'The purpose of thIs Policy Statement

IS to establish a procedure b~' wluch the

conflicts can be resolved. The Poli~'

Statement takes over once a

determmation has been made. under

established board notification

procedures. that Information should be

disclosed to the boards and public. but

OI or staffbelieves that the Information

should be protected. In those cases the

CommiSSIon has deCIded that the only

workable solution to protect both

mteresfs IS to provIde for an In camera

presentation to the board by the NRC

staff or OI. with no party present. Any

other procedure could defeat the

purpose ofnon-disclosure and mIght

actually mhibit the acqUIsition of

Information critical to deCISIOns.

• AllowlIlg the other parties ortherr

representatives to be present m all

cases, even under a protective order.

could breach prOIDlses of confidentiality

or allow the subject of an IIlvestigation

to prematurely acqUIre mformation

about the investigation. We nole III thIS

regard the difficulties of attempting to

prevent a party'srepresentative from

talkIng to hIs client about the relevance

of the Infonnation and how to respond

to it. even under a protective order.

The COmmISSIon believes that the

boards. usmg the procedures e:.;tablished

In thIS PolicyStatement, can resolve

most potential disclosure conflicts once

they have been ad"lsed of the nature of

the Information mvolved. the status of

the mspection or mvestigation. and the

prOjected time for its completion. In

many of the cases when the procedures

m thIs Policy Statement are triggered by

a concern for premature public

disclosure. it may be possible for boards

to prOVIde for the timely comaderation

ofrelevant matters denved from

Investigations and mspections Urrough

the deferral or rescheduling ofissues for

heanng. In other mstances. the boards

may be able to resolve the conDict by

placmg limitations on the scope of

disclosure to the parties. or by uSing

protective orders.

The CommISSIon Wishes to emphaSIze

that these procedures do not abrogate

the well-established pnnclple of

admInIstrative law that a board maynot use exparte Information presented In

camero m makmg licenSing deCISions.

These procedures are deSIgned to allow

the boards to detennme the relevance of

matenal to the adjudication. and

whether that mfonnation must be

disclosed to the parties. and. if

disclosure IS requrred. to pr01.ide a

mecharnsm for case management both

to protect mvestigations and mspections

and to allow for JIe timely pro\ision of

matenal and relevant mformation to the

parties. As such these procedures are

analogous to the proceduresfor

resolvms disputes regarding disc01:ery.

see. e.g.. 10 CPR 2.740(c}. and do not

VIolate the prohibition m 10 CPR2.783

asamst exparte disCUSSIOn of

substantive matters atIssue.

In accord \\ith the above diSCUSSIon.

the COmmISSIOn has deCIded that the

procedures to be followed. where there

IS a conflict between the needIor

disclosure to the board and paroe;;Wld

the need to protect an IIlvestigatio:l "Or'

mspection. ".ill mclude In cam~-a

presentations by the staff or 01.

Howet'er, because tlus procedure

represents a departure from normal

CoIDInlSSlOn procedure. it IS the

COIDmlsslOn's 'new that the deCISIon

should be Implemented by rulemakmg.

Accordingly, the COmmISSIOn directs the

NRC staff to commence a rulemaking on

the matter.

Until completion of the rulemakmg,

the following "ill control the procedures

to be followed m resoh'lllg conflicts

between the duly to disclose to boards

and the need to protect information

developed m mvestigation ormspection:

1. Established board notiIU:ation

procedures should be used by staff or OI

to detemune whether Information in

therr possessIOn IS potentially relevant

and matenal to a pending adjudicatory

proceeding.::: The general rule is that all

Information warranting disclosure to the

boards and parties. including

mfonnation that is the subject of

ongolDg mvestigations or mspectlons.

should be disclosed. e."<:cept as provided

herem.

2. When staff or OI believes that it

has a duly m a particular case to

primde an adjudicatory board with

Information amcernmg an mspection or

m'.:estigation. or when a board requests

such mformation. staff or OI should

prOVIde the Information to ilie board and

parities unless it believes that

unrestrIcted disclosure wouldpreJudice

an ongolDg mspeclion ormvestigation.

or reveal confidential sources.Ifstaff or

01 bclie\'es unrestrIcted disclosure

2 \\'Iille lbb Statemcnlre!=only ta slaE£and OI

\O;ho are the (l~lion:; pnncpallrInvo!ved. lhe

stalC'rr.ent will apply tanny other offices oflhe

Co:nm1s3lOn which m:w have the problem.

JUNE 2011 POLICY STATEMENTS 7
36034 Federal Regrster I Vol. 49,- No. 179 I Thursday, September 13, 1984 I Notices

would have these adverse results, it

should propose to the board and parties

that the mformation be disclosed under

suitable protective orders and other

restrictions. unless such restricted

disclosure would also defeat the

purpose behmd non-disclosure. Ifstaff

or 01 believes that an~ disclosure.

however restricted, would defeat the

purpose behmd non-disclosure, it shall

provide the board with an explanation

of the baSiS of its concern about

disclosure and present the mformation

to the board, In camera, without other

parties present. A verbatim transcript of

the In camera proceeding will be made.3

All parties should be adVised by the

board of the conduct and purpose of the

In camera proceeding but should not be

mformed of the substance of the

mformation presented. If, after such In

camera presentation, a board finds that

disclosure to other parties under

protective order or otherwise IS reqUIred

(e.q., withholding mformation may

prejudice one or more parties or

jeopardize timely completion of the

proceedings, or the board disagrees that

release will prejudice the mvestigation),

it shall notify staff or 01 of its mtent to

order disclosure, specifymg the

mformation to be prOVided. the terms of

any protective order proposed, and the

basis for its conclusIOn that prompt

disclosure is reqUIred. The staff or 01

shall prOVide the board withm a

reasonable period of time, to be set by

the board, a statement of objections or

concurrence. If the board disagrees with

any objection and the disagreement

cannot be resolved. the board shall

promptly certify the record of the In

camera proceeding to the CommiSSIOn

for resolution of the disclosure dispute,

and so mform the other parties. Any

licensmg board deCISIOn to order

disclosure of the identify of a

confidential source shall be certified to

the Commission for reView regardless of

whether 01 and staff concur m the

disclosure.4 The board's declSlon shall

be stayed pending a CommiSSion

deCISIOn. The record before the

CommiSSion shall conSist of the

transcript, the board's Notice ofIntent to

reqUIre disclosure and the objections of

Staff or 01. Staff or 01 may file a brief

with the CommiSSion withm ten days of

filing a statement of objections with the

board. The record before the

Commission. mcluding staff or Drs

3 Nothmg in this Statement prohibits staff on OI

from shanng Information.

• The CommiSSion has deCided to review any

licensing board deCISIon ordenng disclosure of the

Identify of a confidential source because of the

Importance to the CommIssion's Inspection and

Invesllgallon program of protecting the Identity of

confidenllal sources.

-brief, shall be kept In camera to the

extent necessary to protect the purposes

of non-disclosure.

The CommisSion recogmzes that no

other party may beIn a position

effectively to respond to st!1ff or Drs

brief because the proceediilgs have'been

conducted In camera. However, m Those

cases where another party feels that it is

m a position to file a brief, it may do so

withIn seven days after staff or 01 files

its brief with the CommiSSion.

3. Staff or 01 shall notify the board

and, as apprOpriate, the CommiSSion, if

the objection to disclosure to the parties

of previously withheld mformation, or

any portion ofit, is withdrawn. Unless

the COffiffilSSion has directed otherwIse,

such mformation-with the exception of

the Identities of confidential sourcesmay then be disclosed without further

COffiffilSSion order.

4. When a board or the ComnllSSlOn

determmes that mformation concernmg

a pending mvestigation or Inspection

should not be disclosed to the parties,

the record of any In camera proceeding

conducted shall be deemed sealed

pending further order. That record will

be ordered Included m the public record

of the adjudicatory proceeding upon

completion of the mspection or

Investigation, or upon public disclosure

of the mformation Involved, whichever

IS earlier, subject to any privileges that

may validly be clalIDed under the

CommiSSion's regulations, Including

protection of the Identify of a

confidential source. Only the

CommiSSion can order release of the

identify of a confidential source.

Dated at Washmgton. D.C. thiS 7th day of

September, 1984.

Nuclear Regulatory COmmIssion.

SamuelJ. Chilk,

Secretary ofthe CommISSIon.

IFR Doc. 84-24261 Filed 9-1:Hl4; 8:45 am]

BILUNG CODE 75!lO-{)l-M

JUNE 2011 POLICY STATEMENTS 8
36678 Federal Register I Vol. 57, No. 158 I Friday, August 14. 1992 I Notices

NUCLEAR REGULATORY

COMMISSION

Alternative Means of Dispute

Resolution; Policy Statement

AGENCY: Nuclear Regulatory

Commission.

ACTION: Policy statement.

SUMMARY: This Policy statement

presents the policy of the Nuclear

Regulatory Commission (NRC) on the

use of "alternative means of dispute

resolution" (ADR) to resolve issues in

controversy concerning NRC

administrative programs. ADR

processes include, but are not limited to.

settlement negotiations. conciliation.

facilitation, mediation, fact-finding.

mini-trials, and arbitration or

combination of these processes. These

processes present options in lieu of

adjudicative or adversarial methods of

resolving conflict and usually involve

the use of a neutral third party.

DATES: This policy statement is effective

on August 14, 1992. Because this is a

general statement of policy. no prior

notice or opportunity for public

comment is required. However, an

opportunity for comment is being

provided. ~e period for comments

expires on September 28, 1992.

Comments received after this date will

be considered to the extent practical:

however, to be of greatest assistance to

the Commission in planning the

implementation of its ADR policy.

comments should be received on or

before this date.

ADDRESSES: Mail written comme·nts to

the Secretary, U.S. Nuclear Regulatory

Commission, Washington. DC 20555,

Attention: Docketing and Service

Branch, Deliver comments to One White

Flint North. 11555 Rockville Pike,

Rockville. Maryland. between 7:30 a.m.

and 4:15 p.m. on Federal workdays.

Copies of comments received may be

examined and/or copied for a. fee at the

NRC Public Document Room. 2120 L

Street NW., (Lower Level), Washington.

DC. between 7:45 a.m. and 4:15 p.m.

FOR FURTHER INFORMATION CONTACT:

James M. Cutchin IV, Special Counsel.

Office of the General Counsel. U.S.

Nuclear Regulatory Commission,

Washington, DC 20555; Telephone: (301)

504-1568.

SUPPLEMENTARY INFORMATION:

,0 Background

Congress enacted the Administrative

Dispute Resolution Act (Public Law 101-

552) on November 15, 1990. The Act

requir~s each Federal agency to

designate a senior official as Its dispute

resolution specialist, to provide for the

training in ADR processes of the dispute

resolution specialist and certain other

employees. to examine its

administrative programs. and to

develop. in consultation with the

Administrative Conference of the United

States (ACUS) and the Federal

Mediation and Conciliation Service

(FMCS), and adopt, a policy that

addresses the use of ADR and case

management for resolving disputes in

connection with agency programs.

Although the Act authorizes and

encourages the use of ADR. it does not

require the use of ADR. Whether to use

or not to use ADR is committed to an

agency's discretion. Moreover,

participation in ADR processes is by

agreement of the disputants. The use of

ADR processes may not be required by

the agency.

Discussion

The Act provides no clear guidance on

when the use of ADR is appropriate or

on which ADR process is best to use in a

given situation. However, section 581 of

the Act appears to prohibit the use of

ADR to resolve matters specified under

the provisions ofsections 2302 and

7121(c) of title 5 of the United States

Code. and section 582(h) identifies

situations for which an agency shall

consider not using ADR. Nevertheless,

numerous situations where the use of

ADR to resolve disputes concerning

NRC programs would he appropriate

may arise. A document issued by ACUS

in February 1992, entitled "The

Administrative Dispute Resolution Act:

Guidance for Agency Dispute Resolution

Specialists." suggests that the use of

ADR may be appropriate in situations

involving a particular type of dispute

when one or more of the following

characteristics is present:

JUNE 2011 POLICY STATEMENTS 9
Federal Register / Vol. 57. No. 158 / Friday. August ,14, 1992 1 Notices 36679

appropriate. The use of ADR may be

appropriate: (1) Where the parties to a

disputeiincludingthe NRC. agree that,

ADR could result in a prompt. equitable;

negotiated resolution of thedisptite; and

(2) the use of ADR is not prohibited by

law. The NRC's Dispute Resolution

, Specialist is available as a resource to

assist Office Directors and other senior

personnel responsible for administering

NRC programs in deciding whether use

of ADR would be appropriate. That

individual should receive the

cooperation of other senior NRC

personnel: (1) In identifying information

and training needed by them to '

determine when and how ADR may

appropriately be used; and (2) in

implementing the Commission's ADR

policy.

The Commission believes that certain

senior NRC personnel should receive

training in methods such as negotiatiop,

mediation and other ADR processes to

better enable them:, (1) To: r.eeognize

situations where ADR processes might

appropri~~ely be ~mployed to resolve

disputes with the NRC; and (2},to

participate in those processes.

The Commission recognizes that

participation in ADR processes is "

voluntary and cannot be imposed on

persons involved in disputes with the

NRC. To obtain assistarice in identifying

situations where ADR might beneficially

be employed in resolving disputes in

connection with NRC programs and

steps that can be taken to obtain

acceptance of NRC's use of ADR. inllut ,

from the public. including those persons

whose activities the Commission

regulates. should be solicited.

After a reasonable trial period. the

Commission expects to evaluate

whether use of ADR has been made

, where its lise apparently was

appropriate and wh~ther use of ADR

has resulted in ilaviIigs of time. money

and other resources by the NRC. The

Commission will wait until some

practical experience in the use ofADR

has been accumulated before deciding

whether specific regulations to ,

implement ADR procedures are needed.

Public Comment

The NRC is interested in receiving

comments from the public. including

those persolls whose activities the NRC

iregulates. on allY aspect of this policy ';

\statement andits impJ'ementatiol'l.' , ' ,j

, I However, theNRe til particularly' '

'interested in commerttsoll tbe fOllowing:

Specific issues. that are material to

decisions concerning administrative

programs of the NRC and that result in

disputes between the NRC and persons

substantially affected bythose

resolution"(ADR) 1 to resolve issues in

controversy concerning NRC

administrative programs.

The Commission has conducted a

preliminary review of its programs for

ADR potential and believes that a

number of them may give rise to

disputes that provide opportunities for

the use of ADR in their resolution. For

example. as the Commission has long

recognized. proceedings before its

Atomic Safety and Licensing Boards

(ASLBs) provide opportunities for the

use of ADR and case management. The

Commission has encouraged its ASLBs

to hold settlement conferences and to

encourage parties to negotiate to resolve

contentions. settle procedural disputes

and better define substantive issues in

dispute. The Commission also has stated

that its ASLBs at their discretion should

require trial briefs. premed testimony.

cross-examination plans and other

devices for managing parties' "

presentations of their cases. alid that

they should set and adhere ,to '

reasonable schedules for moving,

proceedings along expeditiously

consistent with the demands of fairness.

Statement of Policyon Conduct of

Licensing Proceedings. (46 FR 28533.

May 27, lool); CU-81-8. 13 NRC 452

(1981). In addition. the Commission has

indicated that settlement judges may be

used in its proceedings in appropriate

circumstances. Rockwell International

Corporation (Rocketdyne Division). CU90-5. 31 NRC 337 (1990).

Opportunities for the use ofADR in

resolving disputes may arise in

connection with programs such as those

involving licensing. contracts. fees.

grants. inspections. enforcement. claims;

rulemaking, and.certain personnel

matters. Office Directors and other

senior personnel responsible fOf

administering those programs should be

watchful for situations where ADR.

rather than more formal processes. may

appropriately be used and bring them to

the attention of the NRC's Dispute

Resolution Specialist. Persons who

become involved in disputes with the

NRC in connection with its

administrative programs should be

encouraged to consider using ADR to

resolve those disputes where

appropriate.

The Commission supports and '

encourages the use of ADRw:here,

----,.---,.""' .. T"'[-:-, • , " , ,I

, I ADR j~ an il\c1\J~ive ,term u~~d to d\l~qlbl! a ,', ' variety of joinl'problein:solving pro«:e~!les that ,

present options in lieu of adjudicative or adversarial

methods of resolving conflict. The~e options usually

involve the use of a neutral third party. ADR

processe~ include. but are notlimiled to; settlement

negotiations. conciliation, facilitation. mediation.

fact-finding, mini-triala. and arbitration o'r

combination~ of the~e proces~e~,

Parties are likely to agree to use ADR in

cases of this type; ,

Cases of this type do not involve Or

require the setting of precedent;

Variation in outcome of the cases of this

type is not a major concern;

All of the significantly affected parties

are usually involved in cases of this

type;

Cases of this type frequently settle at

some point in the process;

The potential for impasse in cases of

this type is high because of poor

communication among parties.

conflicts within parties or technical

complexity or·uncertainty;

Maintaining confidentiality in cases of

this type is either not a concern or

would be advantageous;

Litigation in cases of this type is usually

a lengthy and/or expensive process;

or

Creative solutions. not necessarily

available in fonnal adjudication. may

provide the most satisfactory outcome

in cases of this type,

As the Act requires. a Dispute

Resolution Specialist has been

designated, NRC administrative

programs have been reviewed. a policy

on the use of ADR has been adopted.

and the training of certain NRC

employees has begun. As the Act

requires. input on development of the

policy has been sought from ACUS and .

FMCS. Although the Act does not

require it. input on the policy and its

implementation is being sought from the

public. including those persons whose

activities the NRC regulates. because

the possible benefits of ADR cannot be

realized without the agreement of aU

parties to a dispute to participate in

ADR processes. Among the possible

benefits of ADR are:

More control by the parties over the

outcomeof their dispute than in

fonnal adjudication;

A reduction in levels of antagonism

between the p~rties to a dispute; and

Savings of time and money by resolving

the dispute earlier with the

expenditure of fewer resources.

Paperwork Reduct~on Act Statement

This policy statement contains no

information collection requirements and

therefore is not subject to the ' ,',

requirements of thePapeIiYork , Reduction Acto! 11980;(!WU;S;G, 3501 et·

seq.}.

Statement of Policy

This statement sets forth the policy of

the Commission with respect to the use

of "alternative means of dispute

JUNE 2011 POLICY STATEMENTS 10
36680 Federal Register / Vol. 57, No. 158 / Friday, August 14, 1992 / Notices

decisions. that might appropriately be

resolved using ADR processes in lieu of

adjudication.

Whether employees of Federal

government agencies should be used as

neutrals in ADR processes or whether

neutrals should come from outside the

Federal government and be

compensated by the parties to the

dispute. including the NRC. in equal

shares.

Actions that the NRC could take to

encourage disputants to participate in

ADR processes. in lieu of adjudication.

to resolve issues in controversy

concerning NRC administrative

programs.

Dated at Rockville. Maryland this 7th day

of August, 1992.

For the Nuclear Regulatory Commission.

SamulJChilk.

Secretary ofthe Commission.

[FR Doc. 92-19454 Filed 8-13-92; 6:45 am]

B1WNG CODE 75l1O-O1-11

JUNE 2011 POLICY STATEMENTS 11
Federal Register/Vol. 73, No. 75/Thursday, April 17, Z008/Notices Z0963

NUCLEAR REGULATORY

COMMISSION

Conduct of New Reactor Licensing

Proceedings; Final Policy Statement

AGENCY: Nuclear Regulatory

Commission.

ACTION: Final policy statement.

SUMMARY: The Nuclear Regulatory

Commission (NRC or the Commission)

is adopting a statement of policy

concerning the conduct of new reactor

licensing proceedings.

DATES: This policy statement becomes

effective April 17, 2008.

FOR FURTHER INFORMATION CONTACT:

Robert M. Weisman, Senior Attorney,

U.S. Nuclear Regulatory Commission,

Washington, DC 20555-0001, telephone

301-415-1696, e-mail

Robert.Weisman@nrc.gov.

SUPPLEMENTARY INFORMATION: On June

11, 2007 (72 FR 32139), the Commission

published in the Federal Register a

request for public comment on the draft

state~ent of policy on Conduct of New

Reactor Licensing Proceedings (draft

Policy Statement). The Commission

received eight letters transmitting

comments on the draft Policy Statement

by the deadline set in the June 11, 2007,

notice for receipt of comments.

Commenters included a law firm

.(Morgan Lewis on behalf of five energy

companies), a lawyer (Diane Curran),

two advocacy groups, (Beyond Nuclear/

Nuclear Policy Research Institute (BN/

NPRI) and the Union of Concerned

Scientists (UCS)), an industry

organization (the Nuclear Energy

Institute (NEI)), a vendor (GE-Hitachi

Nuclear Energy), and one individual

energy company (UniStar Nuclear)(two

letters). BN/NPRI endorsed Ms. Curran's

comments, and UCS incorporated them

.by reference in the UCS comments..

Similarly, GE-Hitachi and UniStar

endorsed the NEI comments.

The comments fell primarily in the

follOWing three categories. First, many

comments related to 10 CFR 2.101(a)(5),

which permits an applicant to submit its

application in two parts filed no more

than eighteen months apart. The

comments were primarily concerned

with whether the NRC should issue a

Notice of Hearing (required by 10 CFR

2.104) for each part of the application or

just one'Notice of Hearing when the

application is complete. Second, many

comments related to the NRC's

consideration of applications that

propose to build and operate reactors of

identical design (except for site-specific

elements). The comments addressed the

implementation of the "design-centered

review approach" in the NRC Staffs

(Staff) review of the applications and

the adjudicatory proceedings on the .

applications before the Atomic Safety

and Licensing Board (Licensing Board).

Third, many comments requested

rulemaking to implement a variety of

measures that the commenters believe

desirable or necessary fot the

effectiveness or efficiency of the review

or adjudicatory processes. Below, the

Commission summarizes and responds

to the comments beginning with these

three categories of comments.

Discussion of additional comments

follows. In response to the comments,

the Commission has revised the policy

statement in several respects, as noted

below. The Commission has also

corrected the Policy Statement or added

explanatory text in a few instances.

JUNE 2011 POLICY STATEMENTS 12
20964 Federal Register/Vol. 73, No. 75/Thursday, April 17, 200B/Notices

Comments on Notice ofHearing

Comment: The Commission should

modify the final Policy Statement to

provide that the NRC will issue a Notice

of Hearing for the complete partial

Combined License Application

(hereinafter COLA) "as soon as

practicable" after the NRC dockets that

portion of the COLA, unless the

applicant affirmatively requests that the

Notice of Hearing be issued after the

entire COLA is docketed. (NEI 2,

Morgan Lewis 1, UniStar 1)

The commenters state that the

approach they suggest will lessen the

burdens on all parties. Specifically,

these commenters submit that a Notice

of Hearing should be issued upon the

docketing of the first part of an

application submitted under 10 CFR

2.101(a)(5) so that the hearing on that

portion of the application may be

completed sooner, thus providing an

applicant the opportunity to shorten the

critical path for the licensing

proceeding. These commenters also

state that the proposed approach

"smoothes" peak resource demands for

all parties, provides for earlier public

participation, would not call for

different NRC staff support or different

Staff or Licensing Board reviews,

minimizes the likelihood of potential

new issues arising late in the review

process, would not affect any person's

substantive rights, and is consistent

with the NRC intent to publish a

separate Notice of Hearing on a request

for a limited work authorization (LWA).

Further, these commenters indicated

that docketing one part of an application

and then waiting up to 18 months to

issue the Notice of Hearing cannot be

considered to result in issuing the

notice "as soon as practicable" after

docketing, as required by 10 CFR

2.104(a). These commenters also state

that the draft Policy Statement approach

of normally issuing only one Notice of

Hearing appears to ignore NRC

precedent for adjudication of safety and

environmental issues on separate

hearing tracks. One commenter states

that issuing separate notices focuses all

parties on results, not process, while

another asserts that the draft Policy

Statement, as written, discourages early

application submission and causes

delay in the licensing process.

UniStar bases its comments on its

plans to submit the environmental

portion of its COL application first, in

accordance with § 2.101(a)(5), and

provides the following additional

comments. UniStar believes issuing a

Notice of Hearing in connection with

the first part of the application docketed

provides an earlier opportunity for

public participation on environmental

matters, offers the Staff an early

opportunity to consider and address

environmental issues unique to COLs,

and lessens the potential for the NRC

environmental review to be "critical

path" for the UniStar application.

NRC Response: The NRC does not

believe that an overall benefit can

reasonably be predicted to derive from

issuing separate Notices of Hearing for

separate portions of applications filed

pursuant to 10 CFR 2.101(a)(5). The

assertion that issuing two Notices of

Hearing will provide an applicant the

opportunity to shorten the critical path

for a licensing proceeding is

speculative. The nature and complexity

of contentions that may be raised with

respect to the safety and environmental

aspects of any application may vary

considerably. Moreover, while an

earlier, separate Notice might be

advantageous to an applicant by

allowing potential intervenors to raise

their concerns early and thus allow the

applicant more time to consider the

gravity of those concerns and provide

information to the staff to address them,

if appropriate, we do not believe those

possible advantages overcome the

inefficiencies that could be introduced

into the NRC's internal review and

hearing processes as well as the

potential burden on the resources of the

advocacy community to monitor and

respond to multiple Notices of Hearing.

Industry commenters assert that

issuing separate notices would not

impair the substantive rights of any

party, and is consistent with the

practice established in the LWA rule

and previous licensing proceedings. The

Commission agrees that no person's

substantive rights would be impaired if

either a single Notice of Hearing is

issued on a complete application, or if

two such notices are issued on parts of

an application submitted under 10 CFR

2.101(a)(5). In this respect, the two

procedures are equivalent. However, in

the case of a request for an LWA, there

is a clear potential benefit-issuance of

an LWA to permit an applicant to begin

certain safety-related construction

activities before a COL is issued-not

just a more nebulous "smoothing" out

of resource demands, to balance against

the potential negative impacts noted

above.

The industry commenters point to a

proceeding in which a Notice of Hearing

was issued for a single part of an

application relating ,solely to antitrust

matters. See Pacific Gas &' Electric Co.

(Stanislaus Nuclear Project, Unit 1),

LBP-83-2, 17 NRC 45, 47 (1983). The

requirements of 10 CFR 50.33a that

applied in that proceeding, however,

explicitly required submission of

antitrust information in advance of the

rest of the application, presumably

because litigation of antitrust matters

before the Licensing Boards were

virtually always the lengthiest portion

of a licensing proceeding. See 10CFR

50.33a (1983). As described above, that

rationale does not apply here. Similarly,

the fact that in some proceedings safety

and environmental matters wete

considered on separate tracks, based on

the adniitted contentions, does not

present a rationale for issuing separate

Notices of Hearing for such matters.

Specifically, hearings on admitted safety

and environmental contentions may

proceed on separate tracks, ifthe

presiding officer finds that this is

warranted. The advantages derived from

establishing such separate hearing

tracks can be obtained without issuing

separate notices for each part of an

application submitted under

§ 2.101(a)(5).

Accordingly, the Commission does

not support issuing a separate Notice of

Hearing on each part of an application

filed under 10 CFR 2.101(a)(5). With

respect to the additional issues UniStar

raises that are unique to its application,

and which are summarized above, the

Commission does not believe it

appropriate to address such applicationspecific concerns in responses to

comments on a generally applicable

policy statement such as this one. The

comments do not warrant changes in the

Policy Statement.

Comment: Why not, in the name of

efficiency and fairness, wait until the

application process is complete before

holding a hearing-one hearing-on a

completed design and completed

application for a specific reactor site?

(UCS 1, Curran 2). The Commission has

previously recognized the unfairness of

piecemeal litigation governed by a

license applicant's indecision about

whether to pursue a project. The

Commission should redraft its policy

statem'ent to ensure that COL hearings

will be conducted in a manner that is

fair to all parties (Curran 4).

In essence, the commenter is objecting

to the Commission's proposal to

consider exemptions to the

requirements of § 2.101 if the granting of

such exemptions will further the design

centered review approach. The

commenter indicates that such

exemptions will result in issuing two

rather than one Notice of Hearing on .

each complete application, and will

overtake the Commission's stated

intention to issue just one Notice of

Hearing on each complete application in

the absence of the advantages of the

design centered review approach. The

JUNE 2011 POLICY STATEMENTS 13
Federal Register/Vol. 73, No. 75/Thursday, April 17, ZOOa/Notices 20965

Statement does not require

consolidation. Ra$er, it provides,

among other things, that the ChiefJudge

of the Atomic Safety and Licensing

Board Panel (ASLBP) should do so only

if consolidation will not impose an

undue burden upon the parties. Further,

the draft Policy Statement recommends

that applicants and intervenors alike

agree on a lead representative. The

Policy Statement does not treat

intervenors and applicants

inconsistently in this regard.

Finally, the draft Policy Statement

does not state that consolidation is

appropriate when "applications appear

to have something in common." Rather,

the Commission is suggesting'that

intervenors, applicants, and the NRC

alike may save and appropriately focus

resources by litigating matters relating

to applications for identical designs in

consolidated proceedings. Our rules of

-::: practice have long provided for the

possibility of consolidation of issues

and parties.

Comment: Encouraging generic

"variances and exemptions" from . certified designs and endorsing the

notion that "security" considerations in

reactor siting are ever "identical" from

one site to another flies in the face of the

commonly accepted view that each

piece of land is unique. To encourage .

licensees to seek variances, exemptions,

and generic licenses based on the

premise that only components are at

issue without reference to where they

are located is, in a Post-9/11 world,

burying one's head in the sand. Ifthe

Commission needs to encourage, under

the guise of a policy statement, myriad

exemptions to the new Part 52 rules, the

new Part 52 rules patently need

revision. (UCS 2)

NRC RespoIl'Se: The Commission of

course recognizes that certain aspects of

security are site-specific. The

Commission has not "endorsed the

notion that 'security' considerations in

reactor siting are'* * * 'identical' from

one site to another[,]" as suggested by

the commenter. Nonetheless, certified

designs include certain features or

design elements directed to security and

safeguards, and these design matters

will be common at sites referencing the

design certification. The Policy

Statement is focused on "components"

in this regard because it is focused on

the design-centered approach. The

Policy Statement's fQ.cus should not be

read to exclude site-specific issues from

the scope of NRC review. The

Commission does not believe it is

encouraging a "myriad" of exemptions

by this Policy Statement. The Statement

identifies limited circumstances under

which an exemption to Part 2 may be

applicant has sought an exemption from

§ 2.101. For example, it may become

apparent during the course of the NRC

staff review that the proposed plant is

not acceptable for the proposed site.

Accordingly, the Commission concludes.

that these comments do not warrant

changes to the.Policy Statement.

The Commission notes that UCS, in

connection with its comment, identified

a confusing sentence in the draft Policy

Statement to the effect that the NRC

"may give notice" with respect to a

complete application. This sentence has

been revised to read that the NRC "will

give notice" with respect to a complete

application.

COJilm.ents on Design-Centered Review

Approach

Co~ment:The proposed policy

appears to relax or abandon the

requirement for reliance on design .

certifications, allowing license

applicants to depart from certified

designs in license applications, and

then forcing the consolidation of

hearings where the applications appear

to have something in common. In this

respect, the policy seems intended to

maximize the rigidity of design

certification where intervenors' interests

are at stake, and maximize flexibility

where license applicants' interests are at

stake. The policy should be consistent

for both intervenors and applicants.

(Curran 3, UCS 1, BY/NPRI)

NRC Response: Part 52 has never

required an applicant for a COL to

reference a certified design. Rather, a

COL applicant has always had the

option of requesting a COL for a design

that is not certified under Part 52,

Subpart B (a "custom" plant). See 10

CFR 52.79. Similarly, Part 52 has always

provided for exemptions or departures

from a certified design. See 10 CFR Part

52, Appendices A, B, C, and D, Section

VIII. The draft Policy Statement offered

guidance on the effect these provisions

might have in the context of an

adjudication consolidated to take

advantage of the design-centered review

approach. The design-centered review

approach is an effort to encourage

applicants to adopt identical approaches

to issues, which should increase

reliance on standard design

certifications. Moreover, multiple

applicants could choose the same

uncertified design (e.g., a gas-cooled

reactor), which the NRC could review

using the design-centered approach.

This circumstance would be consistent

with the Commission's policy

encouraging greater standardization,

albeit not via design certification.

With respect to whether proceedings

should be consolidated, the draft Policy

commenters indicate that under the

design-centered approach, intervenors

will be forced to participate in

"abstract" proceedings in order to

protect their rights, and that this will

waste the intervenors' resources.

Further, the commenters assert that

such proceedings may subject them to

abusive litigation tactics, since an

applicant could request consideration of

one design pursuant to an exemption

from § 2.101(a)(5), and then drop that

design in favor of another upon filing .

the remaining portion of the

application. They conclude that

potential intervenors will not be able to

prioritize the most important issues that

should be raised with respect to a

proposed new plant on a particular site.

NRC Response: The commenters

misapprehend the effect of an

exemption from § 2.101 that would

further the design-centered review

approach. Such an exemption would

not result in an "abstract" application.

Rather, the applicant would, in its

application, request approval to

construct and operate a particular

facility at a particular site. Prospective

intervenors will not need to guess what

plant might be described in an

application for a COL that could affect

them, nor will they need to participate

in proceedings on proposed reactors

that do not affect their interests.

Further, exemptions from § 2.101 in

furtherance ofthe design-centered

review approach would not result in

litigation of design matters that an

individual applicant might readily

change. The point of allowing such a

procedure is to permit the Staff and the - Licensing Board to consider the

standard portions of an incomplete

application submitted pursuant to an exemption from § 2.101 together wIth

other applications involving the same

design or operational information. An

individual applicant obtains the benefits

of participating in such a proceeding by

relinquishing some of its ability ·to

change that information.

Although the Commission notes that

established doctrines of repose (res

judicata, collateral estoppel) apply once

an adjudication is finally decided,

prospective intervenors need not seek to

participate in proceedings unrelated to

their locale by virtue of the Policy

Statement provisions discussing

possible exemptions from § 2.101.

With respect to the concern that an

applicant might decide to substitute one

design for another in an application,

modify its proposal, or decline to

complete or pursue an application, and

thus render any hearings related to

those aspects of an application moot,

that possibility exists whether or not an

JUNE 2011 POLICY STATEMENTS 14
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entertained or granted. The regulations

in Part 52 have long accommodated the

need for exemptions to design

certification rules in defined

circumstances. See 10 CFR part 52,

Appendices A, B, C, and D, Section VIII.

Comment: The final Policy Statement

should more clearly explain the

parameters or necessary conditions for

consolidation. (NEI 3, Morgan Lewis 4)

NRC Response: Whether separate

proceedings should be consolidated

depends on their particular

circumstances, and is within the

discretion of the presiding officers in

the proceedings, as currently set forth in

Part 2. See 10 CFR 2.317. The draft

Policy Statement adequately explains

how the design-centered review

approach may be appropriately factored

into the presiding officers' decision on

consolidation. Whether two

applications are sufficiently close in

time to warrant consolidation depends

on the particular facts involved. No

modification to the Policy Statement is

warranted.

Comment: The Commission should

clarify that consolidation of hearings on

identical portions of the COL

application is not required to obtain the

NRC staffs design-centered review.

While the use of Subpart D is

permissible, it is not required and

should not be presumed. (NEI 4, Morgan'

Lewis 4)

NRC Response: The Commission

believes that the Policy Statement

already makes clear that consolidation

of hearings is not required to obtain the

NRC staffs design-centered review.

Without consolidation of hearings,

however, some of the benefits Qf the

design-centered review approach may

not be realized. Therefore, the Policy

Statement presumes the use of Subpart

D because the Commission believes that

such use will offer benefits not

otherwise available. A particular

applicant's choice not to seek the use of

Subpart D will mean that such benefits

, will not be available to that applicant.

Comment: The draft Policy Statement

should treat C;OL applications that

reference applications for design

certification amendments in a manner

comparable to COL applications that

reference design certifications. (Morgan

Lewis 3, NEI 5)

NRC Response: The draft Policy

Statement explicitly discusses

applications for design certification. The

Commission believes that discussion

also encompasses an application for an

,amendment to a design certification,

and the Policy Statement need not be

changed.

Comment: The Policy Statement

should direct the Licensing Board to

deny a contention in a COL proceeding

if the contention addresses a matter

subject to a design certification

rulemaking, rather than holding the

contention in abeyance and denying it

later upon adoption of the final design

certification rule. (NEI 6)

NRC Response: While the approach

NEI suggests is consistent with the

Commission decisions cited in the draft

Policy Statement, the Commission

believes that an application for design

certification calls for a different

approach. An applicant for a COL may

choose to pursue its application as a

custom design if, for example, the

review of an application for design

certification originally referenced is

delayed. In such a case, the Commission

believes it inefficient to require

previously admitted intervenors to

justify, for a second time, admission of

contentions which address aspects

within the scope of the design

certification rulemaking. Holding these

contentions in abeyance instead of

denying them resolves this problem.

Accordingly, the Commission has

determined to leave the Policy

Statement unchanged in this regard.

Comment: The Commission should

clarify the statement in section B.3 of

the Policy Statement that "[ilf initial

COL applicants referencing a partic':llar

design certification rule succeed in

obtaining COLs, the Commission fully'

expects subsequent COL applicants to

reference that design certification rule."-

NRC Response: The Commission has

clarified the sentence by stating that if

the NRC grants an initial application

referencing a design certification rule,

the Commission believes it is likely that

subsequent applications referencing that

rule will be filed.

Comments Relating to Rulemaking

Comment: The NRC should ensure

consistency in its rules by conforming

'10 CFR 51.105, which contains

mandatory findings on NEPA matters in

uncontested proceedings, to 10 CFR

2.104, which does not specify the

findings to be made. (Morgan Lewis 6)

NRC response: This proposal would

involve rulemaking, which is beyond

the scope of the development of this

Policy Statement. Because this matter

has been raised as a comment on this

. Policy Statement, the agency is not

treating the comment as a petition for

rulemaking under § 2.802. If the

commenter wishes the agency to

undertake such a consideration, the

commenter should file such a petition.

The Commission would note that the

commenter's proposed change was

considered in the development of the

final Part 52 rulemaking, but was

rejected for several reasons. Such a

change would have represented a

fundamental change to the NRC's

overall approach for complying with

NEPA, in which the agency's record of,.

decision consists of the presiding

officer's findings with respect to NEPA,

as required by Section 51.105. The

Commission did not believe it made

sense to modify the NRC's approach in

one specific situation-the issuance of

combined licenses-without

considering the implications or

desirability of adopting a global change

to Part 51 with respect to the agency's

NEPA's procedures. Moreover, the

Commission believed that such a change

in the NRC's NEPA compliance

procedures should be subject to a notice

and comment process and did not want

to further delay agency adoption of a

final part 52 rule.

Comment: The NRC should revise 10

'CFR 2.10l(a)(5) to permit the first part

of a phased application to consist solely

of the environmental report plus the

general administrative information

specified in § 50.33(a) through (e). It is

not necessary for the NRC to have

complete seismic and other siting

information, plusfinancial and

emergency planning information, to

review an environmental report.

(Morgan Lewis 7)

NRC response: First, this proposal

would require a change to Commission

rules, which is beyond the scope of the

development of this Policy Statement.

Second, with respect to the commenter's

proposal that siting (which includes

seismic) information is not necessary for

the first part of a phased COL

application (even if the rest of the first

part is the environmental report), the

Commission does not find persuasive

this argument for omitting siting

information.

The Commission requirements

governing site safety are based upon the

Atomic Energy Act (AEA). The NRC's

National Environmental Policy Act

(NEPA) review responsibilities do not

expand its AEA authority, but are complementary thereto. Consequently,

there is no need for a NEPA siting

review absent consideration of site

safety under the AEA. Regarding site

safety, the informa.tion an applicant

must submit to satisfy the requirements

of 10 CFR 2.101(a)(5) addresses the

suitability of the site with respect to

maiunade and natural hazards

(including seismic information) and

potential radiological consequences of

postulated accidents and the release of

fission products. Furthermore, the site

characteristics must comply with 10

CFR part 100, "Reactor Site Criteria."

Additional safety elements required in a

JUNE 2011 POLICY STATEMENTS 15
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siting determination include

information on emergency preparedness

and security plans. Administrative

information, including the protection of

sensitive information is necessary to .

fulfill requirements under th~ AEA. The

Commission considers that much of the

above site safety information may be of

use in informing the Commission NEPA

review.

Because the commenter's suggestion

that the agency undertake rulemaking

has been raised as part of the comment

process on this Policy Statement, the

agency is not treating the comment as a

petition for rulemaking under 10 CFR

2.802. Ifthe commenter continues to

believe the agency should consider

rulemaking on this matter, the agency

would suggest the commenter file such

a petition.

Comment: The final Policy Statement

should direct the NRC staff to consider,

on a case-by-case basis, whether generic

or design-specific issues could be

addressed through rulemaking. (GEHitachi Nuclear Energy 1, NEI 10)

NRC Response: The Commission does

not believe that a direction to the NRC

staff to undertake rulemaking, which is

an internal agency matter; is an

appropriate subject for a policy

statement. The Commission has,

however, directed the NRC staff, in

consultation with the Office ofthe

General Counsel, to consider initiating

rulemakings in appropriate

circumstances to address issues that ar&

generic"to COL applications. See SRM

COMDEK-D7-0001/COMJSM-07-

0001-Report of the Combined License

Review Task Force (June 22, 2007)

(ADAMS Accession No.

ML0717601090). Accordingly, the

Commission does not see any further

benefit in duplicating this Commission

direction in a policy statement.

Comment: The NRC should institute

notice-and-comment rulemaking to

provide for meaningful public

participation in the licensing hearing

process under Subpart L of Part 2,

including full and fair discovery

procedure and cross-examination of

adverse witnesses. (UCS 3)

NRC Response: The Commission does

not agree that its current requirements

in 10 CFR Part 2, Subpart L, governing

discovery and cross-examination, are

unfair to any potential party in an NRC

adjudication, nor does the Commission

believe that Part 2 fails to provide for

meaningful public participation in the

licensing hearing process. The

Commission adcIressed the fairness and

expected benefits of the reconstituted

discovery process in Subpart L in the

statement of considerations for the final

2004 revisions to Part 2. See 69 FR 2182

(January 14, 2004) upheld by Citizens

Awareness Network, Inc. v. U.S., 391

F.3rd 338 (1st Cir. 2004). The discovery

process provides for mandatory

disclosures by all parties of information

relating to admitted contentions, and

Staff preparation of a hearing file.

Furthermore, cross-examination is

allowed or may be allowed by the .

presiding officer under those

circumstances in which the Commission

has determined that cross-examination

would be best-suited to result in the

timely development of a record

sufficient to inform a fair decision by

the presiding officer. The commenter

provided nothing other than the .

generalized assertion that the new

procedures are unfair or would preclude

meaningful public participation in the

licensing hearing process. Because the

commenter's suggestion that the agency

undertake rulemaking has been raised as

part of the comment process on this

Policy Statement, the agency is not

treating the comment as a petition for

rulemaking under 10 CFR 2.802. Ifthe

commenter continues to believe the

agency should consider rulemal<ing on

this matter, the agency would suggest

the commenter file such a petition.

Comment: The NRC should decrease

the time periods in the 10 CFR part 2

Milestone Schedules to further

streamline the hearing process and

promote more timely hearings on ESP

and COL applications, by (1) decreasing

the 175 day period between issuance of

the SER and final EIS and the start of

.the evidentiary hearing; and (2)

reducing from 90 to 60 days the period

for the presiding officer to issue its

initial decision following the end of the

evidentiary hearing. (NEII3)

NRC Response: The Commission does

not agree that the Model Milestones in

Appendix B to 10 CFR part 2 should be

modified to adopt the two changes

suggested by the commenter. The 175

day time period provides for, among

other things, scheduling and holding a

pre-hearing conference, issuance of the

presiding officer's order following the

prehearing conference, mandatory

disclosures, preparation ofsummary

disposition motions, issuance of

presiding officer orders on such

motiads, preparation of pre-filed written

testimony, suggested presiding officer

questions based upon the pre-filed

testimony, and any motions for crossexamination together with crossexamination plans. It may wl:lll be that,

with the particular parties involved or

matters at issue in any individual case,

the schedule can be shortened by the

presiding officer. But, given the

activities outlined above, the

Commission does not believe that the

175 day period is unreasonable or

should be significantly shortened at this

time.

The Commission believes that the 90

day period provided for issuance of a

presiding officer decision is reasomtble,

given the likelihood-as described

above-that the first set of'combined

license application hearings may be

complex and raise issues of first

impression for the NRC. If, however, the

issues to be addressed in an initial

decision are small in number, simple in

nature and lack complexity, enabling

the presiding officer to issue the initial

decision in a shorter period of time, the

Commission expects the presiding

officer to do so rather than taking the

full 90 day period.

The Commission·also notes that the

Model Milestones were adopted on April 20, 2005 (70 FR 20457), and have

yet to be applied in full in any early site

permit or combined license proceeding.

Hence, the NRC has yet to, develop any

extensive experience on their

application in such proceedings. Absent

some fundamental problem or error

with the Model Milestones-which the

commenter has not described-the

Commission is unwilling to modify the

Model Milestones at this time. Once the

Commission has had greater experience

with the conduct of combined license

application hearings, the Commission

will revisit the Model Milestones to see

if adjustments are desirable or if a

specific schedule of milestones should

be established for early site permit and

combined license proceedings. Because

the commenter's suggestion that the

agency undertake rulemaking has been

raised as part of the comment process

on this Policy Statement, the agency is

not treating the comment as a petition

for rulemaking under 10 CFR 2.802. If

the commenter continues to believe the

agency should consider rulemaking on

this matter, the agency would suggest

the commenter file such 11 petition.

Other Comments

Comment: The provisions in the draft

Policy Statement (in Section B.l)

regarding the finality of COL

proceedings should be revised to be

consistent with a recent decision by the

U.S. Court of Appeals in which the

Seventh Circuit held that if all of an

intervenor's contentions are resolved by

the Licensing Board, then the Board's

decision is final agency action with

respect to that intervenor. (Morgan

Lewis 5)

NRC Response: The Commission

agrees that the draft Policy Statement

could be misinterpreted on this score.

Accordingly, the Commission has'

modified the pertinent provision of the

JUNE 2011 POLICY STATEMENTS 16
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Federal Register/Vol. 73, No. 75/Thursday, April 17, 200B/Notices

Policy Statement to state that "a

decision on common issues would

become final agency action if it resolves

a specific intervenor's contentions in a

proceeding on an individual

application."

Comment: It is not an insubstantial

change in the rules to 'now state the

Commission, presiding officer on any

request for hearing filed under § 52.103,

will, by fiat, "designate the procedures

under which the proceeding shall be

conducted." A bit of rulemaking might

be in order well before commencement

of extraordinary hearings before the

Commission. (UCS lA) NEI

recommends that the NRC identify the

hearing procedures to be used in the 10

CFR 52.103(a) ITAAC compliance

hearings in the near term and certainly

well before the first such hearing is

imminent. (NEI 8)

NRC Response: Section 189a.(I)(B)(iv)

of the Atomic Energy Act explicitly

authorizes the Commission to establish

procedures for ITAAC compliance

hearings. This AEA provision has been

reflected in Commission rules since

1992. ITAAC compliance hearing

procedures warrant in-depth

consideration, which would unduly

delay the issuance of the Policy

Statement. The Commission believes it

appropriate to first issue guidance on

proceedings on COL applications,

which are indeed imminent, before

turning to ITAAC compliance hearings.

While the Commission is not addressing

ITAAC compliance hearing procedures

in this Policy Statement, the

Commission intends to do so "well

before" the first such hearing, as both

intervenor and industry commenters

request. The Commission, however,

does not believe it necessary to establish

such procedures by rule, and retains the

discretion to specify such procedures in

a future policy statement or on a caseby-case basis by order. ' Comment: The draft policy statement

instructs licensing boards to tailor

hearing schedules to accommodate

limited work authorizations, by holding

hearings on environmental matters and

portions of the Safety Evaluation Report

that are "relevant" to environmental

matters. Given that compliance with

safety regulations is the principal means

by which the NRC protects the

environment, it is difficult to conceive

of any safety-related issues whose

resolution could lawfully be considered

unrela\ed to compliance with the

National Environmental Policy Act.

Therefore, the Commission should

eliminate this instruction from the

policy statement. (Curran 5)

NRC Response: The Commission

agrees that the portion of the draft

Policy Statement to which the comment

is addressed could be misunderstood,

but disagrees with the comment's

underlying premise. Specifically, the

Commission need not resolve all safety

issues in order to perform the

environmental evaluation required in

connection with a request for an LWA.

Rather, the Commission need only

resolve those safety issues identified in·

10 CFR 50.10 as needing resolution

before the Commission may issue an

LWA. The Commission has revised the

Policy Statement to eliminate the

ambiguity identified in the comment. ,Comment: The final Policy Statement

should incorporate the following

revision: "In all proc~edings, the

licensing boards should formulate

hearing schedules to accommodate any

limited work authorization request,

unless the applicant specifically

requests otherwise." (NEI 2A)

(additional suggested text in italics)

NRC Response: The presiding officer

already has the authority to modify the

schedule of a proceeding consistent

with fairness to all parties and the

expeditious disposition of the

proceeding. See 10 CFR 2.319, 2.332,

and 2.334. In this regard, the presiding

officer must consider the interests of all

parties, as well as the overall schedule,

and not just the interests of the

applicant. Accordingly, the Commission

declines to add the suggested language

to this portion of the Policy Statement.

Comment: The final Policy Statement

should incorporate the following

revision: "Specifically, if an applicant

requests [an LWA] as part of an

application, the licensing board should

generally schedule the hearings so as to

first resolve those issues prerequisite to

issuing [an LWAJ. up to and including

an early partial decision on the LWA."

(NEI 2B) (additional suggested text in

italics)

NRC Response: "Resolution" of issues

prerequisite to issuing an LWA

necessarily includes a Licensing Board

decision on those issues. To add the

suggested language would be redundant

and possibly confusing. Accordingly,

the Commission declines to add the

suggested language.

Comment: The draft Policy Statement

should provide guidance for a

proceeding in which a COL application

references an early site permit (ESP)

application or an application for ESP

amendment, comparable to guidance set

forth for COL applications which

reference a design certification

application. (Morgan Lewis 2, NEI 5)

NRC Response: The Commission

agrees with this comment, and has

modified the Policy Statement

accordingly.

Comment: The Commission need not

delay issuance of a combined license

referencing a design certification

application until the certification rule is

final, absent a legal prohibition. A COL _

license condition premised on

promulgation of the DC rule could be

imposed, allowing imy judicial

challenge to be raised in a timely

.manner without adversely im.pacting the

COL. (GE-Hitachi 2, NEI 7)

NRC Response: As the comment

recognizes, the AEA requires the NRC to

make certain findings before issuing a

license. While a license condition may,

in some instances, impose specific

design or operational requirements to

allow the NRC to make the required

findings, a license condition may not be

used to ,defer the required findings

beyond the issuance of the license, e.g.,

in order to complete a rulemaking. The

Commission believes that the approach

proposed in the comment may be

inconsistent with the AEA in this

respect, and so declines to adopt it.

Comment: The final Policy Statement

should clarify the definition of

completeness in the context of whether

an application is acceptable'for

docketing, particularly given

Commission approval of the Combined

License Review Task Force

recommendation to extend the duration

and broaden the scope of the NRC

licensing acceptance reviews. (NEI 1)

NRC Response: The NRC staff is

developing detailed guidance on this

subject. Such guidance is beyond the

scope of this Policy Statement and will

not be addressed in it.

Comment: The Commission sl,lould

seek legislation to eliminate mandatory

uncontested hearings. (NEI9)

NRC Response: The question of

whether legislation on a particular

matter should be sought is beyond the

scope of the Policy Statement. The

Commission is not modifying the Policy

Statement in response to this comment.

Comment: The Commission should

commence COL licensing hearings

based on the availability of draft

licensing documents where

circumstances warrant. (NEI 1~)

NRC Response: We have recently

addressed this question in our decision

in Southern Nuclear Operating Co.

(Early Site Permit for Vogtle ESP Site),

CLI-07-17, 65 NRC 392 (2007). In that

decision, we held that the Licensing

Board, pursuant to 10 CFR 2.332(d),

may not commence a hearing on

environmental issues before the final

environmental impact statement has

been issued. [d. at 394. Hearings may be

held on safety issues, however, prior to

the staff's publication of its safety

evaluation. The commenter has not

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identified any reason for us to revisit

that decision, which provides the basis

for our position on the matter, and we

decline to do so.

Comment: Commission policy should

seek to ensure the NRC staffs timely

completion of licensing reviews for new

plant applications. (NEI 12)

NRC Response: The NRC has, for the

last several years, been diligently

preparing to review applications to

. build and operate new reactors. Part of

that preparation has involved significant

NRC staff effort in p.lanning for timely

reviews that assure that the agency

discharges its duties under the Atomic

Energy Act and NEPA. These efforts

have been and continue to be reflected

in the agency's Strategic Plans and

budget requests, among other

statements. The commenters can be

assured that the NRC is committed to

timely reviews provided it receives

complete, high quality information from

applicants. .

In closing, the Commission notes that

several commenters offered general

statements ofsupport or criticism of the

Commission's licensing process or parts

of that process. While the Commission

acknowledges those comments, they do

not raise any specific issue related to the

Policy Statement, and no response to

them is necessary.

STATEMENT OF POllCY ON

CONDUCT OF NEW REACfOR

llCENSING PROCEEDINGS Cll-o~7

I. Introduction

Because the Commission has received

the first several applications for

combined licenses (COLs) for nuclear

power reactors and expects that several

more applications for COLs will be filed

within the next two years, the

Commission has reexamined its

procedures for conducting adjudicatory

proceedings involving power reactor

licensing. Such examination is

particularly appropriate since the

Commission will be considering these

COL applications at ~e same time it

expects to be reviewing various design

certification and early site permit (ESP)

applications. and the COL applications

will likely reference design certification

rules and ESPs, or design certification

and ESP applications. Hearings related

to the COL and ESP applications will be

conducted within the framework of our

Rules of Practice in 10 CFR part 2, as

revised in 2004 and further updated in

2007 to reflect the revisions to 10 CFR

part 52, and the existing policies

applicable to adjudications. The

Commission has, therefore, considered

the differences between the licensing

.and constructio~of the first generation

of nuclear plants, which involved

developing technology, and the

currently anticipated plants, which may

be much more standardized than

previous plants.

We believe that the 10 CFR part 2

procedures, as applied to the 10 CFR

part 52 licensing process, will provide

a fair and efficient framework for

litigation of disputed issues arising

under the Atomic Energy Act of 1954,

as amended (Act) and the National

Environmental Policy Act of 196!),as

amended (NEPA), that are material to

applications. Nonetheless, we also

believe that additional improvements

can be made to our process. In

particular, the guidance stated in this

policy statement is intended to

implement our goal of avoiding

duplicative litigation through

consolidation to the extent possible.

The differences between the new

generation of designs and the old,

including the degree of standardization,

as well.as the differences between the

10 CFR part 50 and 10 CFR part 52

licensing processes, have led the

Commission to review its procedures for

treatment of a number of matters. Given

the anticipated degree of plant

standardization, the Commission has

most closely considered the potential

benefits of the staffs conducting its

safety reviews using a "designcentered" approach, in which multiple

applicants would apply for COLs for

plants of ide~tical design at different

sites, and of consolidation of issues

common to such applications before a

single Atomic Safety and Licensing

Board (licensing board or ASLB). The

Commission has also considered its

treatment of Limited Work

Authorization requests; the timing of

litigation of safety and environmental

issues; and the order of procedure for

hearings on inspections, tests, analyses,

and acceptance criteria (ITAAC), which

are completed before fuellqading. In

considering these matters, the

Commission sought to identify

procedural measures within the existing

Rules of Practice to ensure that

particular issues are considered in the

agency proceeding that is the most

appropriate forum for resolving them,

and to reduce unnecessary burdens for

all participants.

The new Commission policy builds

on the guidance in its current policies,

issued in 1981 and 1998, on the conduct

of adjudicatory proceedings, which the

Commission endorses. Statement of

Policy on Conduct ofAdjudicatory

Proceedings, CLI-98-12, 48 NRC 18

Uuly 28, 1998), 63 FR 41872 (August 5,

1998); Statement ofPolicy on Conduct

ofLicensing Proceedings, CLI-81-8, 13

NRC 452 (May 20,1981),46 FR 28533

(May 27,1981). The 1981 ~nd 1998

policy statements provided guidance to

licensing boards on the use of tools,

such as the establishment of and

adherence to reasonable schedules,

intended to reduce the time for

completing licensing proceedings while

ensuring that hearings were fair and

produced adequate records. Since the

Commission issued its previous

statements, the Rules of Practice in 10 I

CFR Part 2 have been revised, and

licensing proceedings are now usually

conducted under the procedures of

Subpart L, rather than Subpart G. See

"Changes to Adjudicatory Process,"

Final Rule, 69 FR 2182 Uanuary 14,

2004). In addition, we have recently

amended our licensing regulations in 10

CFR Parts 2, 50, 51 and 52 to clarify and

improve the 10 CFR Part 52 licensing

process. This statement of policy thus

supplements the 1981 and 1998

statements.

With both the recent revisions to 10

CFR Part 2 and this guidance, the

Commission's objectives remain

unchanged. As always, the Commission

aims to provide a fair· hearing process,

to avoid unnecessary delays in its

review and hearing processes, and to

enable the development of an informed

adjudicatory record that supports

agency decision making on matters

related to the NRC's responsibilities for

protecting public health and safety, the

common defense and security, and the

environment. In the context of new

reactor licensing under 10 CFR part 52,

members of the public should be

afforded an opportunity for hearing on

each genuine issue in dispute that is

material to the particular agency action

subject to adjudication. By the same

token, however, applicants for a license

should not have to litigate each such

issue more than once. The Commission emphasizes its

expectation that the licensing boards

will enforce adherence to the hearing

procedures set forth in the

Commission's Rules of Practice in 10

CFR Part 2, as interpreted by the

Commission. In addition, the

Commission has identified certain

specific approaches for its licensing

boards to consider implementing in

individual proceedings, if appropriate,

to minimize burdens on all parties

involved. The measures suggested in

this policy statement can be

accomplished within the framework of

the Commission's existing Rules of

Practice. The Commission may consider

further changes to the Rules of Practice

as appropriate to enable additional

improvements to the adjudicatory

process.

JUNE 2011 POLICY STATEMENTS 18
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II. Specific Guidance

Current adjudicatory procedures and

policies provide the latitude to the

Commission, its licensIng boards and

presiding officers to instill discipline in

the hearing process and ensure. a prompt

yet fair resolution of contested issues in

adjudicatory proceedings. In the 1981

and 1998 policy statements, the

Commission encouraged licensing

boards to use a number of techniques for

effective case management in contested

proceedings. Licensing boards and

presiding officers should continue to

use these techniques, but should do so

with regard for the new licensing

processes in 10 CFR part 52 and the

anticipated high degree of new plant

standardization, which may afford

significant efficiencies. .

The Commission's approach to

standardization through design

certification has the potential for

resolving design-specific issues in a

rule, which subsequently cannot be

challenged through application-specific

litigation. See 10 CFR 52.63 (2007).

Matters common to a particular design,

however, may not have been resolved

even for a certified design. For example,

matters not treated as part of the design,

such as operational programs, may

remain unresolved for any particular

application referencing a particular

certified design. Further, site-specific

design matters and satisfaction of

ITAAC will not be resolved during

design certification. The timing and

manner in which associated design

certification and COL applications are

docketed may affect the resolution of

these matters in proceedings on those

applications, e.g., with respect to what

forum is appropriate for resolving an

issue. As discussed further below, a

. design-centered review approach for'

treating such matters in adjudication

may yield significant efficiencies in

Commission proceedings.

As set forth below, the Commission

has identified other approaches, as

applied in the context of the current

Rules of Practice in 10 CFR Part 2, as

well as variations in procedure

permitted under the current Rules of

Practice that licensing boards should

apply to proceedings. The Commission

also intends to exercise its inherent

supervisory authority, including its

power to assume part or all of the

functions of the presiding officer in a

given adjudication, as appropriate in the

context of a particular proceeding. See,

e.g., Public Service Co. ofNew

Hampshire (Seabrook Station, Units 1

and 2), CLI-90-3, 31 NRC 219, 229

(1990). The Commission intends to

promptly respond to adjudicatory

matters placed before it, and such

matters should ordinarily take priority

over other actions before the

Commissioners. We begin with the

docketing of applications.

A. INITIAL MA TTERS

1. Docketing of Applications

The rules in part 52 are designed to

accommodate a COL applicant's

particular circumstances, such that an

applicant may reference a design

certification rule, an ESP, both, or

neither. See 10 CFR 52.79. The rules

also allow a COL applicant to reference

a design certification or ESP application

that has been docketed but not yet

granted. See 10 CFR 52.27(c) and

52.55(c). Further, we have changed the

procedures in § 2.101 to address ESP,

design certification, and COL

applications, in addition to construction

permit and operating license

applications. Accordingly, a COL

applicant may submit the safety

informa,tion required of an applicant by

§§ 52.79 and 52.80(a) and (b) apart from

the environmental information re.quired

by §52.80(c), as is now permitted by

§ 2.101(a)(5). In addition, we have

lengthened the time allowed between

submission of parts of an application

under § 2.101(a)(5) from six to eighteen

months.

Notwithstanding these procedures,

the Commission can envision a situation

in which an applicant might want to

present a particular ESP or COL

application for docketing in a manner

not currently authorized. For example,

an applicant might wish to apply for a

COL for a plant identical to those of

other applicants under the designcentered approach, and request

application of the provisions of 10 CFR

part 52, Appendix N and Part 2, Subpart

D, before it has prepared the site- or

plant-specific portion of the application.

Such an applicant might not be

prepared to submit its application as

required by the rules, even considering

the flexibility afforded by § 2.10l(a)(5).

Under such circumstances, the

Commission would be favorably

disposed to the NRC staffs entertaining

a request for an exemption from the

requirements of § 2.101. Such an

exemption request could be granted if it

is authorized by law, will not endanger

life or property or the common 'defense

and security, and is otherwise in the

public interest. Moreover, because this

is a procedural rule established for the

effective and efficient processing of

applications, the Commission can

exercise its inherent authority to

approve such exemptions based on

similar considerations of effectiveness

and efficiency. The Commission

strongly discourages piecemeal

submission of portions of an application

pursuant to an exemption unless such a

procedure is likely to afford significant

advantages to the design-centered

review approach described in more

detail below. The Commission intends

to monitor requests for exemptions from

the requirements of § 2.101, and to issue

a case-specific order governing such

matters if warranted. Whether a COL

application is submitted pursuant to

§ 2.101 or an exemption, the first part of

an application submitted should be

complete before the staff accepts that

part of the application for docketing.

Similarly, the staff should not docket

any subsequently submitted portion of

the application unless it is complete.

2. Notice of Hearing

As required by § 2.104(a), a Notice of

Hearing on an application is to be

issued as soon as practicable after the

application is docketed. A Notice of

Hearing for a complete COL application

should normally be issued within about

thirty (30) days of the staffs docketing

ofthe application. Section 2.10l(a)(5),

which provides for submitting

applications in two parts, does not

specify when the Notice of Hearing

should be issued, nor is it clear when a

Notice of Hearing would be issued for

an application filed in parts under an

exemption from § 2.101. With two

exceptions, the Commission believes it

most efficient to issue a Notice of

Hearing only when the entire

application has been docketed. The first

exception is a construction permit

application submitted in accordance

with § 2.101(a-l), which results in a

decision on early site review. The

second exception involves

circumstances in which: (1) A complete

application is subql.itted; (2) one or

more other applications that identify a

design identical to that described in the

complete application are submitted; and

(3) another application is incomplete

with respect to matters other than those

'common to the complete application.

Under such circumstances, the

Commission will give notice of the

hearing on the complete application,

and give notice of the hearing on the

other application with respect to the

matters common to the complete

application. The Commission

determination in this regard will

consider the extent to which any 'notice

is consistent with the timely completion

of staff reviews using the designcentered approach and with the efficient

conduct of any required hearing, with

due regard for the rights of all parties.

Upon submission of information

JUNE 2011 POLICY STATEMENTS 19
Federal Register/Vol. 73, No. 75/Thursday, April 17, ZOOS/Notices 20971

completing the other application, the

Commission would give notice of a

hearing with respect to that information.

Under all other circumstances, the

CODlHlission will issue a Notice of

Hearing only when a complete

application has been docketed in order

to avoid piecemeal litigation.

3. Limited Work Authorizations

Section 50.10 contains provisions for

limited work authorizations, which

allows certain construction activities on

production and utilization facilities to

commence before a construction permit

or combined license is issued. The

Commission has redefined the term

"construction" in 10 CFR 50.10, as well

as the provisions governing limited

work authorizations. Accordingly, we

are providing additional guidance

regarding limited work authorizations.

In all proceedings, the licensing

boards should formulate hearing

schedules to accommodate any limited

work authorization request. Specifically,

if an applicant requests a limited work

authorization as part of an application,

the licensing board should generally

schedule the hearings so as to first

resolve those issues prerequisite to

issuing a limited work authorization.

This may lead to hearings on the safety

and environmental matters specified in

10 CFR 50.10 before commencement of

hearings on other issues. Such

considerations should be incorporated

, into the milestones set for each

proceeding in accordance with 10 CFR

Part 2, Appendjx B.

B. Treatment ofGeneric Issues

1. Consolidation ofIssues Common to

Multiple Applications

The Commission believes that generic

consideration of issues common to

several applications may well yield

benefits, both in terms of effective

consideration of issues and efficiency.

Such benefits would accrue not only to

the staff review process, but also to

litigation ofsuch matters before the

licensing board. We acknowledge that

consideration of generic matters

common to several applications may be

possible in several contexts. For

example, an applicant might seek staff

review of a corporate program'such as

quality assurance or security that is

common to several of its applications. If

contentions on such a program are

admitted with respect to more than one

application, consolidation of such

contentions before a single licensing

board may result in more efficient

decision making, as well as conserving

the parties' resources. Licensing boards

should consider consolidating

proceedings involving such mattei's,

pursuant to an applicant's motion or

pursuant to their own initiative under

§ 2.317(b). In addition, different

applicants may seek COLs for plants of

identical design at multiple sites, as in

the design-centered review approach,

and may therefore seek to implement

the provisions of 10 CFR Part 2, Subpart

D. In this regard, we have amended

Subpart D to Part 2 and Appendix N to

10 CFR Part 52 to provide explicit

treatment of COL applications for

identical plants at multiple sites.

Because we believe thatthe designcentered approach is the chief example

of circumstances in which generic

consideration of issues common to

several applications may yield benefits,

we discuss that approach in detail

below. While much has changed since

we first promulgated Subpart D in 1975,

we believe manY'ofthe concepts

originally underpinning Subpart D still

apply today, and we presume that

Subpart D procedures, as well as other

applicable Rules of Practice in 10 CFR

Part 2, will be applied to applications

employing a design-centered review

agproach. Our vision for the

implementation of a "design-centered"

approach under the procedures of

Subpart D is set forth below.

As indicated above, issues, such as

those involving operational programs or

design acceptance criteria,l common to

several applications referencing a design

certification rule or design certification

application may be most effectively and

efficiently treated with a single review

in a "design-centered" approach and,

subsequently, in a single hearing. In

order to achieve such benefits, however,

applicants who intend to apply for

licenses for plants of identical design

and request the staff to employ the

design-centered review approach should

submit their applications

simultaneously. Subpart D nonetheless

affords the licensing board discretion to

consolidate applications filed close in

time, if this will be more efficient and

otherwise provide for a fair hearing.

While not required, we believe

applicants for COLs for plants of

identical design should consolidate the

portions of their applications containing

common information into a joint

submission. In doing so, each applicant

would also submit the information

required by §§ 50.33(a) through (e) and

50.37 and would identify the location of

its proposed facility, if this information

1 Design acceptance criteria are a special type of

ITAAC that are used to verify the resolution of

design issues for which completed design

information was not provided in the design

certification application.

has not already been submitted to the

Commission.

Appendix N requires that the design

of those structures, systems, and

components important to radiological

health and safety and the common

defense and security described in

separate applications be identical in

order for the Commission to treat the

applications under Appendix N and

Subpart D. The Commission believes

that any variances or exemptions

requested from a design eertification in

this context should be common to all

applications. In addition, while not

required, the Commission encourages

applicants to standardize the balance of

their plants insofar as is practicable.

Subpart D provides flexibility in the

hearing process. Each application will

necessarily involve a separate

proceeding to consider site-specific

matters, and the required hearings may,

as appropriate, be comprised of two (or

more) phases, the sequence of which

depends on the circumstances. For any

of the phases, the hearings may be

consolidated to consider common issues

relating to all or some of the

applications involved.

An applicant requesting treatment of

its application under the designcentered approach may seek to submit

separate portions of the application at

different times, pursuant to § 2.101(a)(5)

or an exemption from § 2.101, as

discussed above. Under such

circumstances, the Commission intends

to issue a Notiee of Hearing for the

portion of the application to be

reviewed under the design-centered

approach, and a second notice limited

to the portion of the application not

treated under the design-centered

review approach upon submission of

the complete application. Such a

procedure would not affect any

prospective intervenor's substantive

rights; Le., members of the public will

still have a right to petition for

intervention on every issue material to

the Commission's decision on each

individual application.

The staff would review the common

information in the applications, or in

the joint submission, for sufficiency for

docketing and, if acceptable, would

docket this information as a portion of

each application. Each application

would be assigned a docket number in

connection with the first portion of the

application docketed, which could be

the common submission. The applicants

should designate one applicant to be the

single point of contact for the staff

review of this common information, and

to. represent the applicants before the

licensing board.

JUNE 2011 POLICY STATEMENTS 20
20972 Federal Register/Vol. 73, No. 75/Thursday, April 17, ZOOS/Notices

Consistent with our guidance set forth

above, we would expect to issue a

Notice of Hearing only upon the

docketing of at least one complete

application that includes the common

information. The Notic~ of Hearing will

not only provide an opportunity to

petition to intervene in the proceeding

on the complete individual application,

but will also provide such an

opportunity with respect to the

information common to all the

applications, which would be docketed

separately. Accordingly, upon issuance

of such a notice, the ChiefJudge of the

Atomic Safety and Licensing Board

Panel (ASLB~ or Panel) should, as is the

normal practice, designate a licensing

board to preside over the applicationspecific proceeding, and should also

designate a licensing board to preside

over the consolidated portions of the

applications. Initially, these two

licensing boards could be the same. A person having standing with

respect to one of the facilities proposed

in the applications partially

consolidated would be entitled to

petition for intervention in the

proceeding on the common information.

Such a petitioner would be required to

satisfy the other applicable provisions of

§ 2.309 with respect to the application

being contested to be admitted as a

party to the proceeding on the common

information. Petitioners admitted as

parties to such' a proceeding with

respect to a proposed facility for which

the application remains incomplete at

the time of the initial Notice of Hearing

would have an opportunity to propose

contentions with respect to the rest of

the application upon the docketing of a

complete application, but would not

needto demonstrate standing a second

time. Those persons granted

intervention are required to designate a

lead for common contentions, as

required by § 2.309(0(3); as stated

above, applicants submitting common

information under the design-centered

approach would likewise designate a

representative to appear before the

licensing board. In addition, the

presiding officer may require

consolidation of parties in accordance

with §.2.316.

The Commission is willing to

consider other methods of managing

proceedings involving consideration of

information common to several

applications. For example, the

Commission does not intend to

foreclose the ChiefJudge of the Panel

from designating a licensing board to

preside over common portions of

applications on the motion of the

applicants, even if separate proceedings

have already been convened on one or

more of the applications involved. In

such a case, however, the applicants

should jointly identify the common

portions of their respective applications

when requesting the ChiefJudge to take

such action. Petitioners admitted as

parties to any affected proceeding

would of course have the right to

answer such a motion.

As stated above, upon issuance of a

Notice of Hearing for a complete plantspecific application that includes

information on "common issues," the

ChiefJudge of the Panel should

designate a licensing board to preside

over the plant-specific portion of each

application that is then complete. Each

licensing board, whether designated to

consider the common issues or a

specific application, should manage its

respective portion of the proceedings

with due regard for our 1981 and 1998

policy statements. We emphasize that

the ChiefJudge of the Panel should not

designate another licensing board to

consider specific aspects of a

proceeding unless the standards we

enunciated in Private Fuel Storage, UC

(Independent Spent Fuel Storage

Installation), CLI-98-7, 47 NRC 307,

310-11 (1998) for doing so are met.

These standards are that the proceeding

involve discrete and separable issues;

that multiple licensing boards can

handle these issues more expeditiously

than a single licensing board; and that

the proceeding can be conducted

without undue burden on the parties.

[d.

An initial decision by the licensing

board presiding over a proceeding on a

joint submission containing information

common to more than one plant-specific

application will be a partial initial

decision for which'a party may request

review under § 2.341 (as is also

provided in Subpart D) and which we

may review on our own motion. Such a

decision would become .part of each

initial decision in the individual

application proceedings, which will

become final in accordance with the

regulation that applies depending on

which subpart of our Rules of Practice

has been applied in a proceeding on a

particular application (e.g., § 2.713

under Subpart G; § 2.1210 under

Subpart L). Accordingly, a decision on

common issues would become final

agency action if it resolves a specific

intervenor's contentions in a proceeding

on an individual application.

Revisions of specific applications

during the review process could result

in formerly common issues being

referred to the licensing board presiding

over a specific portion of one or more

applications. These issues would be

resolved in the normal course of

adjudication, but may well result in

delay in final determination of the

individual application.

2. COL Applications Referencing Design

Certification and ESP Applications

With respect to a design for which

certification has been requested but not

yet granted, the Commission intends to

follow its longstanding precedent that

"licensing boards should not accept in

individual license proceedings

contentions which are (or are about to

become) the subject of general

rulemaking by the Commission." Duke

Energy Corp. (Oconee Nuclear Station,

Units 1, 2, and 3), CLI-99-11, 49 NRC

328,345 (1999), quoting Potomac Elec.

Power Co. (Douglas Point Nuclear

Generating Station, Units 1 and 2),.

ALAB-218, 8 AEC 79, 85 (1974). In

accordance with these decisions, a

licensing board should treat the NRC's

docketing of a design certification

application as the Commission's

determination that the design is the

subject of a general rulemaking. We

believe that a contention that raises an

issue on a design matter addressed in

the design certification application

should be resolved in the design

certification rulemaking proceeding,

and not the COL proceeding.

Accordingly, in a COL proceeding in

which the application references a

docketed design certification

application, the licensing board should

refer such a contention to the staff for

consideration in the design certification

rulemaking, and hold that contention in

abeyance, if it is otherwise admissible.

Upon adoption of a final design

certification rule, such a contention

should be denied.

Similar considerations apply if a COL

applicant references an ESP application

that has not been granted. In such a

case, the Licensing Bo¥d presiding over

the proceeding on the COL application

should refer contentiOIis within the

scope of the ESP proceeding to the

Licensing Board presiding over the ESP

proceeding. . An individual applicant, nonetheless,

may ch'oose to request that the

application be treated as a "custom"

design, and thereby resolve any specific

technical matter in the context of its

individual application. An applicant

might choose such a course if, for

example, the referenced design

certification application were denied, or

the rulemaking delayed. The

application-specific licensing board

.would then consider contentions on

design issues, which otherwise would

have been treated in the design

certification proceeding. Similarly, a

COL ap'plicant referencing a design

JUNE 2011 POLICY STATEMENTS 21
Federal Register/Vol. 73, No. 75/Thursday, April 17, 200B/Notices 20973

certification application may request an

exemption from one or more elements of

the requested design certification, as

provided in § 52.63(b) and Section VIII

of each appendix to 10 CFR Part 52 that

certifies a'design. As set forth in those

provisions, such a request is subject to

litigation in the same manner as other

issues in a COL proceeding. Since the

underlying element of the design may

change after the exemption request is

submitted, such an exemption may

ultimately become unnecessary or may

need to be reconsidered or conformed to

the final design certification rule. Such

matters would be considered by an

application-specific licensing board. A

licensing board considering a COL

application referencing a design

certification application might conclude

the proceeding and determine that the

COL application is otherwise acceptable

before the design certification rule

becomes final. In such circumstances,

the license may not issue until the

.design certification rule is final, unless

the applicant requests that the entire

application be treated as a "custom"

design.

COL applicants should coordinate

with vendors applying for certified

designs to ensure that decisions on

design certification applications do not

impede decisions on COL applications.

If design certification is delayed, a

licensing board considering common

technical issues may likewise b':l

delayed.

3. Subsequent Applications Referencing

a Design Certification Rule

Ifthe Commission grants initial COL

applications referencing a particular

design certification rule, the

Commission believes it likely that

subsequent COL applicants will also

reference that design certification rule.

In this event, the Commission would

expect to develop additional processes

to facilitate coordination of proceedings

on such applications. We observe, .

however, that an issue associated with

such matters as operational programs or

design acceptance criteria may be

resolved through the design-centered

review approach for initial applications

containing common information, but we

do not intend to impose any resolution

so obtained on subsequent COL

applicants. While there is no

requirem.ent to adopt a previouslyapproved resolution of an issue, and

subsequent applicants are free to use the

most recent state-of-the-art methods to

resolve such issues, we nevertheless

urge such applicants to consider

adopting previous resolutions in order

to maximize plant standardization. If a

COL applicant adopts an approach to a

technical issue previously found

acceptable, no further staff review of the

adequacy of the approach is necessary.

Rather, the staff review should be

limited to verification that the applicant

has indeed adopted the previously

approved approach and will properly

implement it, and, for technical issues

that depend on site-specific factors, that

the previously-approved approach

applies to the applicant's proposed

facility.

C.ITAAC

In first promulgating 10 CFR Part 52

in 1989, we determined that hearings on

whether the acceptance criteria in a

COL have been met (ITAAC-compliance

hearings) would be held in accordance

with thB Administrative Procedure Act

(APA) provisions applicable to

determining applications for initial

licenses, but that we would specify the

procedures to be followed in the Notice

of Hearing. See 10 CFR 52.103(b)(2)(i)

(1990); 54 FR 15395 (April 18, 1989). In

enacting the Energy Policy Act of 1992,

Congress subsequently confirmed our

authority to adopt 10 CFR Part 52, and

by statute accorded us additional

discretion to determine procedures,

whether formal or informal, for ITAACcompliance hearings. See Atomic

Energy Act section 189a.(1)(B)(iv), 42

U.S.C. 2239(a)(1)(B)(iv). We therefore

amended § 52.103(d) to provide that we

would determine, in our discretion,

"appropriate hearing procedures,

whether informal or formal

adjudicatory, for any hearing under

[§ 52.103(a)]."

While we recognize that specification

of procedures for the treatment of

requests for hearings on ITAAC would

lend some predictability to the ITAAC

compliance process, we are not yet in a

position to specify such procedures,

since we have not approved even one

complete set of ITAAC necessary for

issuing a COL. Further, ITAACcompliance hearings are likely several

years distant, and we have no

experience with the type and number of

hearing requests that we might receive

with respect to ITAAC compliance.

While it may not be necessary to

consider the first requests for ITAAC-

.compliance hearings in order for us to

determine the procedures appropriate to

govern such hearings, we believe it

premature to specify such procedures

now. In addition, the staff is now

formulating guidance on the times

necessary for the staff to consider

different categories of completed

ITAAC, and this guidance should assist

licensees in scheduling and performing

ITAAC so as to minimize the critical

path for staff consideration of completed

ITAAC.

In view of the above considerations,

we have identified one measure to lend

predictability to the ITAAC compliance

process: The Commission.itself will

serve as the presiding officer with

r,espect to any request for a hearing filed

under § 52.103. In acting as the

presiding officer under these

circumstances, we will make three

initial determinations. First, we will

decide whether the person requesting

the hearing has shown, prima facie, that

one or more of the acceptance criteria in

the COL have not been, or will not be

met, and the attendant public health

and safety consequences of such nonconformance that would be contrary to

providing reasonable assurance of

adequate protection of the public health

and safety. Second, if we decide to grant

a request for a hearing on ITAAC

compliance, we will decide, pursuant to

§ 52.103(c), whether there will be

reasonable assurance of adequate

protection of the public health and

safety during a period of interim

operation. Third, we will designate the

procedures under which the proceeding

shall be conducted. We have amended

§52.103 and our Rules of Practice (10

CFR 2.309,2.310, and 2.341) to

incorporate ~ese changes.

m. Conclusion

The Commission reiterates its longstanding commitment to ensuring that

hearings are fair and produce an

adequate record for decision, while at

. the same time being completed as

expeditiously as possible. The

Coml{lission intends to monitor its

proceedings to ensure that they are

being concluded in a fair and timely

fashion. To this end, the Commission

will act in individual proceedings, as

appropriate, to provide guidance to

licensing boards and parties, and to

decide issues in the interest of a prompt

and effective resolution of the matters

set for adjudication.

Dated at Rockville, Maryland, this 11th day

of April 2008,

For the Nuclear Regulatory Commission.

Annette Vietti-Cook,

Secretary afthe Commission.

[FR Doc. E8-8272 Filed 4-16-08; 8:45 amI

BILLING CODE 759lHll-P

JUNE 2011 POLICY STATEMENTS 22
Federal Register/Vol. 72, No. 166/Tuesday, August 28, 2007/Rules and Regulations

NUCLEAR REGULATORY

COMMISSION

10 CFR Parts 1, 2, 13 and 110

RIN 3150-AH74

Use of Electronic Submissions in

Agency Hearings

AGENCY: Nuclear Regulatory

Commission.

ACTION: Final rule.

SUMMARY: The Nuclear Regulatory

Commission (NRC) is amending its

regulations to require the use of

electronic submissions in all agency

hearings, consistent with the existing

practice for the high-level radioactive

waste repository application (which is

covered under a separate set of

regulations). The amendments require

the electronic transmission of electronic

documents in submissions made to the

NRC's adjudicatory boards. Although

exceptions to these requirements are

established to allow paper filings in

limited circumstances, the NRC

maintains a strong preference for fully

electronic filing and service. The rule

builds upon prior NRC rules and

developments in the Federal courts

regarding the use of electronic

submissibns.

DATES: Effective date: This final rule

will become effective October 15, 2007.

Applicability date: This final rule will

apply only to new proceedings noticed

on or after that date. For any proceeding

noticed before that effective date, filings

may be submitted via the E-Filing

system, but only after this rule's

effective date and upon agreement of all

participants and the presiding officer.

ADDRESSES: This final rule and any

related documents are available on the

NRC's interactive rulemaking Web site

at http://ruleforum.llnl.gov. For

information about the interactive

rulemaking site, contact Carol Gallagher,

telephone (301) 415-5905, e-mail

CAG@nrc.gov. Publicly available NRC

documents related to this final rule can

also be viewed on public computers

located at the NRC's Public Document

Room (PDR), located at O-1F21, One

White Flint North, 11555 Rockville

Pike, Rockville, Maryland. The PDR

reproduction contractor will make

copies of documents for a fee.

Publicly available documents created

or received at the NRC after November

1, 1999, are available electronically at

the NRC's Electronic.Reading Room

currently located at http://www.nrc.gov/

reading-rm/adams.html.

From this site, the public can gain

entry into the NRC's Agencywide

Documents Access and Management

System (ADAMS), which provides text

and image files of NRC's public

documents. If you do not have access to

ADAMS or if there are problems in

accessing the documents located in

ADAMS, contact the NRC PDR

Reference staff at 1(800) 397-4209, (301)

415-4737, or by e-mail at pdr@nrc.gov.

FOR FURTHER INFORMATION CONTACT:

Darani Reddick, Office of the General

Counsel, U.S. Nuclear Regulatory

Commission, Washington, DC 20555-

0001, telephone (301) 415-3841, e-mail

dmrl@nrc.gov, or Steven Hamrick,

Office of the General Counsel, telephone

(301) 415-4106, e-mail schl@nrc.gov.

SUPPLEMENTARY INFORMATION:

I. Background

II. Overview of the Final Rule

III. Comments on the Proposed Rule

IV. Section-by-Section Analysis of

Substantive Changes

V. Voluntary Consensus Standards

VI. Environmental Impact: Categorical

Exclusion

VII. Paperwork Reduction Act Statement

VIII. Regulatory Analysis

IX. Regulatory Flexibility Certification

X. Backfit Analysis

XI. Congressional Review Act

I. Background

On December 16, 2005 (70 FR 74950),

the NRC published a proposed rule, EFiling, to require that submissions in

any adjudicatory hearing governed by

10 CFR part 2, Subpart C, part 13, or

part 110 be made electronically. NRC's

Electronic Information Exchange (EIE), a

component of the E-Filing system,

permits users to make electronic

submissions to the agency in a secure

manner using digital signature

-technology to authenticate documents

and validate the identity of the person

submitting the information. Upon

receipt of a transmission, the E-Filing

system time-stamps documents

transmitted to the NRC and sends the

submitter an e-mail notice confirming

receipt of the documents.

In crafting the rule, the NRC relied

upon its past experience- with electronic

submissions and also examined Federal

court practices. These experiences are

derived from the "Electronic

Maintenance and Submission of

Information" final rule ("E-Rule"),

issued October 10, 2003 (68 FR 58792),

and the 10 CFR part 2, Subpart J

procedures for electronic filing in highlevel waste proceedings. The NRC also

looked to the use of electronic filing by

Federal courts. E-Filing adopts some

technical and procedural provisions

nearly verbatim from the E-Rule, 10 CFR

part 2, Subpart J, and the procedures

adopted by the Federal courts.

The E-Filing rule is accompanied by

Guidance for Electronic Submissions to

the NRC (Guidance), a guidance

document that is currently available at

http://www.nrc.gov/site-help/esubmittals.html. This guidance

document consolidates previous

guidance set-forth for electronic

submittal of information to the agency,

and sets forth the technical standards

for electronic transmission and for

formatting electronic documents as well

as instructions on how to obtain and use

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the agency-provided digital

identification (ID) certificate that a

participant must have to'submit or

retrieve an electronic filing through the

E-Filing system. These standards have

not been included in the rule so that it

will be easier and faster for the NRC to

amend the Guidance, when warranted,

to allow use of the most current

technology. Information on accessing

and using the E-Filing system is also

available on the NRC Web site, http:!!

www.nrc.gov.

II. Overview of the Final Rule

E-Filing represents a major revision to

the NRC's methods of filing and service

in adjudicatory proceedings governed

by the Part 2, Subpart C and Part 13 - requirements, and a minor revision to

Part 110 requirements. The final rule is

generally explained in section III of this

document; section IV provides a

section-by-section analysis of changes

made from the proposed rule to the final

rule. A thorough explanation of the

concepts involved in E-Filing can be

found in the proposed E-Filing rule (70

FR 74950; Dec. 16, 2005).

A: Conceptual Framework for Electronic

Filing and Service

Filing and service involve the transfer

of a document from one participant to

the presiding officer, the other

participants in the proceeding, and the

Secretary of the Commission for

inclusion in the official proceeding

-docket. Two types of electronic filing

and service exist under E-Filing: fully

electronic and partially electronic. Fully

electronic filing and service involves the

electronic transmission of an electronic

document. Partially electronic filing and

service entails the physical. delivery or

mailing of optical storage media (OSM)

(such as a CD-ROM) containing an

electronic document. While E-Filing

permits partially electronic filing and

service in cases where necessary, the

rule generally calls for fully electronic

filing (with certain exceptions permitted

by the rule and further described in the

Guidance).

B. Benefits of Electronic Filing and

Service

The benefits of electronic filing and

service originate from the use of

electronic transmission and electronic

documents. The electronic transmission

of documents is more cost effective and

faster than physical delivery of paper

mail. While the added cost and delay of

physically delivering or mailing one

document may be small, the total cost

and delay could be significant over the

course of a proceeding with many

filings and a large service list.

In addition, compared to paper

documents, electronic documents save

resources and increase efficiency.

Electronic documents are less expensive

to produce, store, transport, and retrieve

than paper documents. Electronic

documents also have text-searching

capability, which allows users to review

many documents quickly and find those

sections that are relevant to their needs,

along with text-capture capability,

which enables users to transport entire

passages from one document to another

quickly. Finally, the filing of electronic

documents in the appropriate and

uniform format benefits the NRC

because the agency already processes

filings into electronic formats for storage

as official agency records.

C. The E-Filing System

Under E-Filing, a participant wishing

to file a document is required to convert

the document into the .appropriate

electronic format and electronically

transmit it via the agency's EIE to an electronic system monitored by the

NRC, called the E-Filing system. The

NRC established the E-Filing system,

which can be accessed on the NRC's

. public E-Submittal Web site at hap:!!

www.nrc.gov/site-helpesubmittals.html. The system receives,.

stores, and distributes documents filed

,in proceedings covered by this final rule

for which an electronic hearing docket

has been established:

To electronically submit a filing, a

participant with an agency-provided

digital certificate completes the

Adjudicatory Document Submittal form

on the E-Submittal system web page and

selects the appropriate proceeding

docket from a provided drop-down list,

which lists all dockets in which that

person is a participant. In the case ofall

initial petitions to intervene or requests

for hearings, the potential submitter will

follow the instructions in the Notice of

Opportunity for Hearing for the -

proposed licensing activity or as stated

on the NRC Web page for obtaining a

digital certificate. In essence, the stated

process will require the potential

submitter of an initial document in a

proceeding to contact the NRC Office of

the Secretary (SECY) and obtain

authorization to apply for a digital

certificate. At that time, the initial filing

submitter must identify for SECY the

matter in which it wants to file an

intervention petition or hearing request,

including the licensing docket involved

and the Federal Register notice, if any,

that provides an opportunity for

hearing. After SECY is contacted and

authorizes obtaining a digital certificate,

SECY will establish a docket to receive

the intervention petition or other initial

filing and any responses thereto filed

using the E-Submittal form. If an initial

filing submitter already has a digital ID

certificate, he'or she must still contact

SECY so that it can establish a docket

to receive the initial filing. Upon being

authorized to obtain a digital certificate,

the first time submitter, following the

procedures on the E-Submittal Web site,

will'then select the appropriate docket

for filing the submission. SECY will also

establish a service list that will include

those who are identified for service in

the Notice of Opportunity for a Hearing.

Thereafter, the participant attaches,

signs using the agefncy-pr-ovided digital

ID certificate, and transmits the

document. For a filing submitted under

an order of the presiding officer that

prevents the disclosure of certain

information except to certain

individuals (a protective order) the

submitter selects the participants to be

served electronically from the electronic

distribution list, which is a list of the

Atomic Safety and Licensing Board

members and other individuals

involved in the proceeding as

participants or party representatives.

For a public filing, the submitter may

view the list of participants to be served

electronically but cannot alter the list.

The transmission process can be

performed either by the participant

signing the document or another

authorized individual, such as a

secretary or clerk.

The E-Filing system serves all the

persons selected by the submitter (or

pre-selected in the case of a public

filing) to receive service by sending an

e-mail notifying them that a document

has been filed and -providing them with

a temporary link from which they chn

view and save the document until it is

made permanently available though the

Publicly Available Record System

(PARS) or the Electronic Hearing Docket

(EHD): This e-mail constitutes service of

the document upon the participants to

whom it'was sent. Finally, the E-Filing

system will send afi electronic

acknowledgment to the filer, which is

an e-mail that confirms receipt of the

filing and reports that an e-mail has

been sent to the selected persons on the

electronic distribution list.

A person filing electronically may

seek assistance through the "Contact

Us" link located on the NRC Web site

at http://www.nrc.gov/site-helplesubmittals.html or by calling the NRC

technical help line, which is available

during normal business hours. The help

line number is 1 (800) 397-4209 or

locally, (301) 415-4737.

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D. Electronic Hearing Dockets

The EHD is a database that houses a

visual presentation of the docket for a

particular proceeding and a link to all

the filings in that proceeding. The EHD

can be accessed through the "Electronic

Reading Room" link on the NRC

homepage. After an electronic docket

has been established, SECY will inform -

the participants of the docket's

existence. SECY will maintain that

docket and all publicly available filings

will be accessible from the electronic

hearing .docket site.

Although the electronic hearing

docket established by SECY after the

initial intervention petition or hearing

request will bear the licensing docket

number under which the proceeding

was designated in the Federal Register

notice, after a presiding officer is

assigned to the proceeding, SECY will

replace the licensing docket number

with a proceeding docket number. The

proceeding docket number will be

exactly the same numerical digits as the

licensing docket number, except that a

two- or three-letter suffix is added to

differentiate between multiple hearings

involving the same facility. SECY will

inform the participants of the modified

proceeding docket number and will

instruct them to use the proceeding

docket number rather than the licensing

docket number when accessing

documents.'

E. Digital ID Certificates

To access the E-Filing system, a

participant must obtain a digital ID

certificate from the NRC, which will be

supplied at no cost. A digital ID

certificate is a unique file downloaded

onto a participant's computer that

identifies the participant to the E-Filing

system. A digital ID verifies the

participant's identity for the E-Filing

system when making an electronic

filing, and enables the participant to

digitally sign documents submitted to

the system. Digital ID certificates are

linked to the e-mail address submitted

by the individual when applying for a

certificate. Therefore, if a participant

changes his or her e-mail address, he or

she must apply for a new certificate.

A participant must request a digital ID

certificate from the NRC before

submitting its first electronic filing with

the NRC. If the participant is an

organization, the digital ID is assigned

to a participant representative, rather

than the organization. The notices of

opportunity for heariig that the NRC

publishes in the Federal Register will

remind potential participants of the

requirement to obtain a digital ID

certificate. After contacting SECY to

obtain authorization for a digital ID, a

participant should apply for a digital ID

on the NRC Web site at http://

www.nrc.gov/site-help/e- *

submittals.html. A participant will be

able to seek assistance in obtaining a

digital ID certificaie through the

"Contact Us" link on the "Electronic

Submittals" page located on the NRC

Web site at http://www.nrc.gov/sitehelp/e-submittals.html or through the

NRC technical help line. After a digital

ID certificate is assigned, that ID will

provide the participant with access to

all the E-Filing proceedings to which it

is a participant; therefore, only one

digital ID certificate with the

appropriate level of access certification

is required per participant regardless of

the number of proceedings in which

that participant is involved. The NRC

reserves the right to revoke a digital ID

certificate if it is being abused. An

individual or organization who

anticipates participation in NRC

proceedings is encouraged to request a

digital ID certificate prior to publication

of a notice of opportunity for hearing.

In addition to digital ID certificates

assigned to individuals, Group digital ID

certificates may be assigned to firms or

other organizations. Group digital ID

certificates, which can be downloaded

onto several computers, allow multiple

individuals who do not have an

individual digital ID certificate to be

served with a filing to the E-Filing

system, thus permitting those

individuals to retrieve documents filed

in the proceeding. Because Group

digital ID certificates are assigned to

entities, the Group digital ID certificate

does not have an' electronic signattire

associated with it and, thus, cannot be

used to electronically sign filings

submitted to the E-Filing system. Thus,

at least one representative of the group

must obtain an individual digital ID

certificate to be able to file

electronically. Further, group digital ID

certificates cannot be used to receive

filings subject to a protective order

because only those who have signed a

non-disclosure agreement will receive

these filings. Participants or their

representatives who have signed nondisclosure agreements must obtain

individual digital ID certificates to be

served with filings subject to a

protective order.

F. Electronic Distribution List

Each proceeding with an electronic

docket will have a distribution

(electronic service) list, which includes

the presiding officer, as well as all of the

participants (such as the intervenor(s),

applicant/licensee, interested

government participant(s), and NRC

staff) taking part electronically in that

specific proceeding. Upon receiving an

initial filing from a participant, SECY

will add the participant to the electronic

distribution list, thereby providing the

participant notification of and access to

documents that will be filed in the

proceeding and enabling the participant

to electronically file and serve the

presiding officer and others on the

distribution list. Participants may

retrieve documents filed more than 14

days previously from the EHD Web site.

G. Certificates of Service and

Service List

E-filing requires that submitters attach

a certificate of service, including a

service list, to their filings to inform the

recipients of the entities who received

the filing and how they were served.

This procedure is particularly important

for protective order filings because the

E-Filing system will not automatically

select a list of the entities to receive the

filing. Thal responsibility will be left to

the submitter to perform under the

requirements of the protective order

- governing filings and restrictions

pertaining to service of protected filings

on recipients identified in the order or

related disclosure agreements. Also, the

electronic distribution list may not be

an all-inclusive list of the participants

in the proceeding because it will not

include any participants permitted to

file and be served by paper.

H. Signatures

10 CFR 2.304(d) provides that all

electronic documents must be signed

with the assigned digital ID certificate of

a participant or a participant's

representative or attorney. It also allows

for additional signatures by participant

representatives or attorneys using a

typed designation, as discussed below.

The document, however, does not need

to be electronically signed and

electronically submitted by the same

person with the same digital ID

certificate. For example, an attorney or

participant's representative may

electronically sign a document using his

or her digital ID certificate, but a

secretary may submit the document,

using his or her own digital ID

certificate.

The Commission considers

documents that have been electronically

signed following the procedures

outlined below to be the equivalent of

traditional signed paper documents- To

sign a filing with a digital ID certificate,

§ 2.304(d)(1)(i) requires that a signature

block be added to the electronic

document before it is submitted. The

signature block will consist of the

phrase "Signed (electronically) by,"

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followed by the signer's name and the

capacity in which the person is signing.

It will also contain the date of signature

and the signer's postal address, phone

number, and e-mail address. The

participant will not need to sign a paper

document. The digital signature will be

added at the time of submittal to the EFiling system by the participant clicking

on the "Click to Digitally Sign

Documents" button.

If additional signatures are added to

an electronic document, these

signatures must be added using a typed

"Executed in Accord with 10 CFR

2.304(d)" designation. To execute a

pleading or other submitted document

with a typed-in "Executed in Accord

with 10 CFR 2.304(d)" designation, the

participant would add a signature block,

as described above, for the additional

signatories and type in the phrase

"Executed in Accord with 10 CFR

2.304(d)" on the signature line of the

signature blocks for each added signer.

As section 2.304(d)(1) indicates, a

person executing a pleading or other

similar document submitted by a

participant using this designation is

making 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. The

Commission also considers documents

that have been signed following this

procedure to be the equivalent of

traditional signed paper documents.

Therefore, in a change from the

proposed rule, the Commission will not

require participants to retain paper

copies of handwritten signatures. The

NRC staff could also use this method for

providing additional signatures, but

would type in "/RA/," meaning "Record

Approved," which is the agency's

current method of signiig digitally

stored documents.

Documents signed under oath or

affirmation, such-as affidavits, should be

executed in the form specified in 28

U.S.C. 1746 and signed with the

"Executed in Accord with 10 CFR

2.304(d)" designation as well, which

§ 2.304(d) now would specify is, in

accord with 28 U.S.C. 1746, a

representation that, under penalty of

perjury, the document is true and

correct to the best of that individual's

knowledge and belief. The guidance

document provides further explanation

of signing documents under oath or

affirmation.

I. Electronic Transmission

Under E-Filing, participants should

convert their documents into the

appropriate electronic formats detailed

by the Guidance and electronically

transmit these documents to the

presiding officer, the other participants,

and SECY. The Guidance sets technical

standards for filing and service under

the rule and defines the file sizes and

formats for electronic transmissions. By

putting the technical provisions in the

Guidance, the Commission is able to

update the electronic transmission

standards to keep pace with technology

and the changing needs of the NRC and

the participants in its adjudication

without additional rulemaking.

Exemptions to the electronic

transmission requirement are discussed

below. (See section II.K. of this

document).

J. Electronic Document Requirements

Because the E-Filing system can

accept documents only in specified

electronic formats, E-Filing has specific

electronic document standards that are

enumerated in the Guidance for

Electronic Submissions to the NRC

("Guidance"), which is available on the

NRC Web site, http://www.nr.gov. This

guidance document replaces all

previous agency-guidance on electronic

submittals to the agency, including

Appendix A: Guidance for Electronic

Submissions to the Commission (which

accompanied the E-Rule), Guidance for

Submission of Electronic Documents

Under 10 CFR Part 2, Subpart J (which

applies to the high-level waste '

repository proceeding), and the E-Filing/

E-Submittal Proposed Guidance. For the

foreseeable future, the only technically

compatible formats are certain types of

portable document format (PDF) file

formats. In addition, individual

submissions cannot exceed 50

megabytes (approximately 5000 pages of

text), which the NRC considers the

current upper limit for practical Internet

transmissions.

The Guidance creates three categories

of documents: simple, large, and

complex. Simple documents are

documents filed in a PDF format and

transmittable to the E-Filing system in a

single transmission.

Large documents, meaning documents

exceeding 50 megabytes, are also filed

in a PDF format. The Guidance

currently reoommends that these large

documents should be segmented into

smaller files that meet the 50 megabyte

limit and then transmitted to the EFiling system, which reunites the files

as a package. Document size limits

provided in the Guidance are subject to

change, to keep pace with the most

current technology. Participants are also

asked to physically deliver to all the

participants in the proceeding OSMs

containing the large document, in its "

entirety, in a unified form that could be

used as a reference copy.

Complex documents are those that (1)

are not entirely in an acceptable PDF

format; (2) contain Classified National

Security Information or Safeguards

Information; or (3) exceed the 50

megabyte limit and cannot be

segmented. The Guidance asks

participants to electronically submit to

the E-Filing system the sections of a

complex document that are in PDF, do

not contain Classified National Security

Information or Safeguards Information,

and can be segmented into less than 50

megabytes. The Guidance also asks

participants to deliver the entire

complex document on an OSM to all

authorized participants in the,

proceeding.

As was previously noted, the

Guidance recognizes that only certain

forms of PDF are technically compatible

with the NRC E-Filing system. As part

of the development of the NRC E-Filing

system, the NRC chose PDF formats over

other formats based on the following

considerations:

(1) The format is a type that can be

entered as an official agency record;

(2) The format behaves consistently

over a broad range of operating systems

and platforms (meaning pagination

remains identical regardless of the

printer used);

(3) The format can be easily accessed

by most users; . (4) The format is one to which other

document formats can be easily

converted;

(5) The format supports images, text,

and other types of documentary material

that can be useful in a hearings context;

and

(6) The format has text-searching and

text-capture capabilities.

PDF has-all of these features. Further,

the National Archives has identified

certain PDF versions as acceptable for

transfer of permanent records to the

archives.

K. Exemptions From the Electronic

Filing and Service Requirements

In recent years, almost all participants

in NRC adjudications have been filing

and serving documents via e-mail in

addition to submitting paper copies,

which are generally regarded as the

"official" versions of the documents.

This use of e-mail submissions exists

because a vast majority of the "

participants in NRC proceedings have

ready access to computers, word49142

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processing programs, and the Internet.

This has led the NRC to conclude that

almost all participants are ready to take

the next step and move to a fully

electronic environment. The NRC

recognizes that implementing a rule

governing electronic submission could

entail initial costs for some persons

because participants would need ready

access to a computer with word;

processing software, software that will

save/render documents in PDF format,

and the Internet. However, the

participants are expected to recoup

these expenses through cost savings in

labor, copying, and mailing paper

documents to multiple participants.

(1) Good Cause Required for Exemption

From Electronic Filing

Despite these advantages, the NRC

recognizes that some individuals may

conclude that they are not able to file

electronically for a variety of reasons.

The NRC, therefore, will allow

exemptions from the E-Filing rule for

certain participants in appropriate

circumstances. To participate using

traditional paper filing and service, a

participant must request an exemption

from the electronic filing requirement

and should submit a request for

authorization from the presiding officer

with its first filing in the proceeding.

"Good cause" for such an exemption

would depend on the participant's

circumstances and could include such

matters as: disability, lack of readilyavailable Internet access, or the cost of

purchasing the necessary equipment or

software. The presiding officer will

determine if a participant has

demonstrated good cause on a case-bycase basis.

If, after submitting its first filing

electronically,-a participant wishes to

request an exemption, the participant

will, in addition to the requisite

showing of good cause, have to show

that granting the exemption late is in the

interest of fairness. A participant may

meet this standard by demonstrating an

unforeseen change in circumstances that

makes filing via the E-Filing system

especially onerous. Until the presiding

officer rules on the request, the

participant must continue to file

electronically.

E-Filing provides exemptions from

the requirement to send the filing to the

EFiling system electronically as well as

from the requirement to submit

documents in computer file format.

These are discussed below.

(2) Electronic Transmission Exemption

A participant willing to submit a

document formatted in PDF, but capable

only of delivering the PDF document via

OSM, can request an exemption from

electronic transmission over the Internet

to the E-Filing system. This participant's

filings would be exempt from the

requirement of being sent to the E-Filing

system.

(3) Electronic Document Exemption

A participant can also request an

exemption from the requirement to file

documents formatted in PDF as well as

the electronic transmission requirement

through the E-Filing system. This

participant would physically file and

serve paper documents on the presiding

officer and other participants in a

manner determined by the presiding

officer. In return, the presiding officer,

other participants and SECY would

physically serve paper documents on a

participant who has been granted this

exemption.

* Although these exemptions are

available for participants in NRC

proceedings, the NRC believes that the

cost savings from electronic filing

generally will exceed electronic filing

associated equipment/software/Internet

access procurement costs and, thus,

encourages potential participants to

move to electronic filing and service,

whenever possible, rather than seeking

an exemption. When a participant is

granted either a document exemption or

a transmission exemption, E-Filing

permits a mixed service proceeding,

which is discussed in the next section.

L. Mixed Service Proceedings and

Computation of Time

The Commission recognizes the

possibility that there could be a

proceeding in which a participant will

receive an exemption permitting the

participant to file and serve paper

copies, while the other participants will

file and serve documents electronically.

As mentioned previously, if an

exemption from electronic filing and

formatting is granted, the NRC prefers

mixed service proceedings to traditional

proceedings that rely solely on paper.

Mixed service proceedings are those in

which some, but not all, of the

participants file and serve by the same

non-electronic method. For example,

rather than requiring that all

participants physically serve and file

paper documents when one participant

to the proceeding is granted an

electronic documents exemption, mixed

service proceedings allow the exempted

participant to filb, serve, and be served

physically, while the rest of the

participants file and serve each other

electronically according to the standards

in the Guidance. Standards concerning

timeliness and the number of days for

service will be established by the

presiding officer who grants the

electronic filing exemption on a case-bycase basis as fairness and efficiency

considerations dictate. However,

§ 2.306(c) specifies that documents

served in person or by expedited mail

must be served by 5:00 p.m. Eastern

Time and a document served through

the E-Filing system must be served by

11:59 p.m. Eastern Time.

M. Completeness of Electronic Filings

Under § 2.302(d)(1), filing by

electronic transmission is considered

complete "when the filer performs the

last act that it must perform to transmit

a document, in its entirety,

electronically." For electronic

transmissions, the "last act" would

occur when the participant hits the "submit/transmission" or "send"

button. The language in § 2.302(d)(1)

and the meaning of "last act" are taken

from the Advisory Committee Notes to

the 2002 amendments to Rule 25(c)(4) of

the Federal Rules of Appellate

Procedure, which covers service

requirements. The NRC adopted the

"last act" standard for several reasons.

First, the "last act" standard, which

penalizes a party only for events within

its control, is fair. Upon selecting the

send or transmit button, a participant

relinquishes all control over a document

and cannot be certain when the

document will be received by the NRC's

system. Making completeness of filing

dependent upon receipt of the

transmission would subject participants

to the vagaries of electronic

transmission, which may include such

problems as the filer's Internet

connection being slower on the day of

filing, the filer's Internet service

disconnecting during transmission, or

the filer's connection to the E-Filing

system server failing to connect because

the allotted time for connection expired.

Second, the "last act" standard

conceptually coincides with the

standard for filing by mail, when a filing

is considered complete upon depositing

the document, in its entirety, in a

mailbox. In effect, the "last act" of

depositing the document in the mailbox

is equivalent to hitting the "submit/

transmission" or "send"button.

N. Completeness of Filing When

Multiple Filing Methods Are Required

When two or more methods of filing

are permitted in a mixed proceeding,

§ 2.302(d)(4) indicates that filing is

complete when all the methods of filing

used are complete. For example, if a

participant needs to make a filing

consisting of three electronic

documents, one of which is entirely

Classified National Security

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Information, the filer is to submit the

two non-classified documents by

electronic transfer and all three

documents on an OSM. If the

participant mails the OSM on Monday

and performs the electronic transfer on

Tuesday, filing would be complete

Tuesday. Although the OSM mailed

Monday would contain the entire filing,

a filing would not be complete until all

required filing methods have been

completed.

0. Retrieving Documents Filed in a

Proceeding

Upon receiving an electronic filing,

the E-Filing system will send an e-mail

notification to all persons on the

electronic distribution list. The e-mail

will notify those on the list that a filing

has been made in the proceeding and

will provide a link to the document that

will stay active for 14 days. Each person

with access via an individual or Group

digital ID certificate can click on the

link to access the document for viewing

and/or saving in PDF compatible

software and can save the document to

his or her own computer. Thereafter, to

re-open the document, the person need

only access it from his or her own

computer. Alternatively, once it is

processed into the agency's ADAMS

system (usually within 72 hours of

submission), a person can access a

publicly available document by logging

onto the EHD located in the Electronic

Reading Room, which is available at

http://www.nrc.gov/reading-rm.html.

The EHD is a publicly available Web

site; no digital ID certificate is required

to retrieve documents from the EHD. A

link to the EHD will be available on the

NRC Web site.

P. Effective Date of the Rule

This rule will become effective on

October 15, 2007. Although this rule is

legally applicable only to proceedings

noticed after October 15, 2007,

participants in ongoing proceedings

may follow the rule upon agreement of

all participants and the presiding

officer, but may submit documents via

the E-Filing system only after the

effective date of this rule. The NRC

encourages participants in ongoing

proceedings to follow the rule.

m11. Comments on the Proposed Rule

The NRC held a public meeting on

January 10, 2006, to discuss and receive

comments on the proposed rule and to

demonstrate electronic filings. The NRC

also received written comments on the

proposed E-Filing rule, which were due

to the agency by March 1, 2006. The

NRC received comments on various

areas of the proposed rule, including

comments on technical aspects of

electronic filing contained in the

proposed E-Filing Guidance. The

following summarizes the comments

either verbalized at the public meeting

or submitted to the NRC in writing and

the agency's responses. Suggested

editorial changes have been reflected in

the final rule and are not individually

responded to below. No commenter

opposed the proposal to require

electronic filing or asserted that they

would seek an exemption from the

presiding officer if they were seeking to

participate in a proceeding in which the

rule was applicable.

A. Comments on the Proposed E-Filing

Process

Comment. Is the E-Filing rule satisfied

when a participant files by attaching the

document to electronic mail?

Response. No. The rule requires that

filings in adjudicatory proceedings must

be submitted by attaching a document to

the Adjudicatory Docket Submission

Form on the E-Submittal Web page.

Therefore, a document attached to an email will not be accepted as a properly

submitted filing unless otherwise

provided by order of the presiding

officer.

Comment. What exactly is being'

certified when the certificate of service

is submitted to the E-Filing system? Is

there a way to verify that the filing will

be served on the people on the service

list?

Response. Certifying an electronic

certificate of service has the same effect

as certifying a paper copy certificate of

service. The E-Filing system

automatically generates the service list

for particular proceedings and allows

the participant to review the service list

before submitting a filing. For public

filings, participants will be able to

review the service list but not change

those people designated to be served

with the filing. For filings subject to a

protective order, participants can review

the service list and must designate those

who should be served with the filing. In

either instance, however, as noted

previously, a service list identical to the

traditional paper service list (i.e., listing

those persons or entities served) should

also be included as part of the electronic

filing or submission.

Comment. When attaching

declarations or affidavits signed under

oath and affirmation to a filing, must the

person signing the affidavit also

electronically sign the filing?

Response. No. An oath or affirmation

document should conclude with a

statement to this effect:

"I declare under penalty of perjury

that the foregoing is true and correct.

Executed on [date]."

As the Guidance indicates, because the

E-Filing system only accommodates

execution by one digital signatory for an

affiant whose declaration is included

with a pleading or other document

submitted by a participant, participant's

representative, or counsel, "Executed in

Accord with 10 CFR 2.304(d)" would be

typed on the signature line of the

signature block of the oath or

affirmation document to be

electronically submitted. Execution of

an oath or affirmation document in this

manner will be considered the

equivalent of a traditional signed copy.

Comment. Will there be a help desk

to answer questions on E-Filings?

Response. Yes, assistance will be

available through the "Contact Us" link

located on the NRC Web site at http:!!

www.nrc.gov/site-helpiesubmittals.html or by calling NRC

technical support, which is available

during normal business hours. The help

line number is 1 (800).397-4209 or

locally, (301) 415-4737.

Comment. Does the E-filing rule

contain provisions for filing proprietary

information?

Response. Although the rule itself

does not address handling of proprietary

information for electronic filing, the

Guidance accompanying the rule does.

The guidance document provides that

sensitive information that is not

Safeguards or Classified National

Security Information may be filed

electronically to the E-Filing system

under the system's protective order file

regime. Each sensitive document should

be clearly marked, and the cover letter

should indicate the sensitivity of each

document. Once transmitted to the EFiling system, sensitive documents will

be protected by being placed in specific

folders in the Electronic Hearing Docket

(EHD) that permit access only to those

participants who have been authorized

to receive and review the sensitive

material.

Comment. The Guidance

contemplates filing Classified National

Security Information on an OSM.

However, neither the rule nor the

Guidance provides an exemption for

paper filing of classified documents.

What if the participant submitting the

filing has the appropriate, security

clearance to possess the classified

information, but does not have an NRCapproved classified computer system to

process the information on electronic

media?

Response. The presiding officer in

each proceeding will issue an order, as

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necessary, that will establish the

procedures for the preparation,

submission, and service of documents

containing classified information.

Accordingly, participants who cannot

provide electronic versions of

documents containing classified

information should bring this issue to

the attention of the presiding officer at

the appropriate time.

Comment. How will documents filed

under protective order be accessed

through the EHD? Once accessed

through the EHD, may these documents

be printed?

Response. Those seeking to file and

access protective order file materials

will be required to obtain a digital ID

certificate from the agency. The EHD

will recognize a participant's digital ID

certificate as one that may have access

to documents filed under protective

order. Once in the EHD, a secure login

screen will appear only to those who

may access documents filed under a

particular protective order, prompting

the participant to enter a login ID and

password. With the exception of NRC

employees, who because of their

responsibility under NRC regulations

not to disclose proprietary or other

sensitive information covered by a

protective order generally are not asked

to sign non-disclosure agreements

required by protective 'orders, SECY will.

give the password only to those

participants who have signed the nondisclosure agreement required by the

protective order in that particular case.

After the login ID and password are

verified by the EHD system, the

participant may access documents filed

under the protective order by which that

participant has been granted access.

Participants who have been granted

an exemption from electronic filing and,

therefore, do not have digital

certificates, but who have signed a nondisclosure agreement required by a

protective order, may be granted access

to protective order filings on the EHD on

a case-by-case basis in accordance with

procedures specified by the protective

order. Documents under protective

order may be printed from EHD, but

must be controlled as specified by the

terms of the governing protective order.

Comment. Is there a specified

alternative method of filing that should

be used if the E-Filing system is

unavailable due to technical issues?

Response. Neither the rule nor the

guidance document addresses

alternative methods for filing if the EFiling system is unavailable. Instead,

the presiding officer in each proceeding

will issue an order that specifies a

backup method for filing if the E-Filin4

system is unavailable.

Comment. When changing to a new

computer, must the participant reregister for a digital certificate?

Response. Not necessarily. Digital ID

certificates can be downloaded and

saved on a disk or memory stick so that

when switching to a different computer,

the participant may import it off of the

disk or memory stick onto the new

computer. However, digital ID

certificates are linked to a participant's

e-mail address. If a participant's e-mail

address changes, the participant must

apply for a new digital certificate.

Comment. What is the need for group

digital ID certificates, and how would

individuals belonging to a group ID be

notified of a filing by the E-Filing

system?

Response. Group IDs may be assigned

to law firms or other organizations and

can be downloaded onto several

computers. This allows multiple

individuals who do not have an

individual digital ID certificate to be

served with a filing to the E-Filing

system and permits those individuals to

retrieve documents filed in the

proceeding. Notification of the filing

would be sent to the e-mail address

associated with the Group ID, which

generally would be a central mailbox

that the individuals belonging to the

Group ID would be able to access. Comment. Proposed § 2.306(b)(3)

would give additional time to all

participants in a proceeding when

multiple service methods are used. The

additional time would be computed

based oh the service method used to

deliver the entire document. There

could be a circumstance where not all

participants receive the "entire"

document. For example, if part of the

document is proprietary information

under protective order and is filed on a

CD-ROM,_a participant who has not

signed the protective order would not be

served with that CD-ROM; thus, the

participant would not receive the "entire" document.

Response. Because a participant who

has not signed the protective order is

not entitled to see the proprietary

information, it is not clear why, for

service purposes, this participant has

not received the "entire" document after

a version containing all the

nonproprietary portions of the

document has been provided (if such a

version can be provided appropriately).

The agency believes that this scenario

would be a rare occurrence. Therefore,

the presiding officer will have

discretion to set forth, on a case-by-case

basis, the calculation of additional time

when a participant may not be entitled

to receive an entire filing served by

multiple methods. This section of the

final rule has been revised to provide for

this possibility.

Comment. Section 2.306(b)(5) of the

proposed rule would add a day to the

response time for a document handdelivered after 5:00 p.m. but not for a

document served by the E-Filing system

at midnight. The same additional day

should be provided for any responses

hand-served or served by the E-Filing

system after 5:00 p.m.

Response. The agency has

reconsidered the computation of time

set forth in §§ 2.306(b)(5), 13.27(c)(5)

and 110.90(c)(5) of the proposed rule.

The agency has decided that, for

fairness and efficiency, the computation

of time will begin the following day

after the document is served, unless the

presiding officer in that proceeding

determines otherwise.

For example, if a pleading is served

on Monday, regardless of the time of

day or method of service, the number of

days to respond will be calculated

beginning on Tuesday. Sections

2.306(c), 13.27(d) and 110.90(d) of the

final rule have been revised to eliminate

the computation of time method set

forth in the proposed rule. This aspect

of the final rule also represents a change

from current practice, which allows an

extra day for documents received

electronically after 5:00 p.m.

These sections of the final rule also

now specify that if a document is served

by the E-Filing system or by electronic

mail, it must be served by 11:59 p.m.

Eastern Time of the day it is due in

order to be considered timely. The

reason for this change is that the EFiling system requires periodic

maintenance that is generally scheduled

after midnight Eastern Time on

weekdays and results in the system

being temporarily unavailable. To

ensure that electronic submittals are not

impacted by these post-midnight

maintenance outages, the NRC is

mandating an 11:59 p.m. Eastern Time

filing deadline. If a document is served

in person or by expedited service, the

final rule mandates that it must be

served by 5 p.m. Eastern Time of the

day it is due in order to be considered

timely.

Comment. Section 2.306(b)(5) of the

•pioposed rule also appears to afford "all

participants" an additional day even if

only one participant is served by hand

delivery after 5 p.m. This appears to be

impractical because it would be difficult

for one participant to know that another

participant had been hand-served after 5

p.m., thus affording all participants one

additignal day.

Response. The final rule has been

revised to specify that, to be considered

timely, a document. must be hand49145

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served by 5 p.m. Eastern Time, or served

by the E-Filing system by 11:59 p.m.

Eastern Time. As discussed above,

redesignated § 2.306(c) of the final rule

has revised the computation of time

method outlined in the proposed rule so that it will begin the day after a

document is served. This will eliminate

any ambiguity as to whether, depending

on the time a document has been

served, the participants will be afforded

an additional day.

Comment. The proposed rule uses the.

term "participant" but does not define

this term. "Participant" should be

defined in § 2.4.

Response. The definition of

"Participant" has been added to § 2.4-of

the final rule.

Comment. How will the E-Filing rule

affect the use of the Digital Document

Management System (DDMS) in agency

proceedings?

Response. The E-Filing rule will not

affect the DDMS. The DDMS is the

Atomic Safety and Licensing Board

Panel's hearing management support

system that combines web-based

hearing and document management

with electronic evidence prbsentation,

real-time transcription, and digital

recording to provide users with

continual electronic access to searchable

evidentiary material and video

transcripts, and a means to present most

evidence in an electronic fashion. In the

near fiture, the DDMS will be used by

the Pre-License Application Presiding

Officer Board in the high' level-waste

repository licensing proceeding as well

as in other proceedings.

B. Comments on the Guidance

Document Accompanying the Proposed

Rule

Comment. Must electronically-filed

documents be in a certain PDF format?

Response. Yes. The Guidance

enumerates the specific electronic

document standards to be used for

electronic filings. Currently, the only

acceptable formats are certain types of

PDFs and certain other formats used for

spreadsheets, when necessary.

Comment. The naming conventions

set forth in the Guidance could result in

the loss of a file's interactive features.

The Guidance should allow exceptions

or dual submittals to allow use of the

original file naming convention, and

should also allow submittal of nested

folders because some of the features rely

on unchanged relative path files.

Response. The naming conventions in

the Gui dance are intended to allow the

NRC's profiling process to be more

efficient because it alerts the agency's

Document Processing Center staff to the

order in which the electronically

submitted files should be arranged. This

allows for easier viewing and use

because files in a package will already

be arranged in the correct sequential

order. Therefore, participants should

follow the naming conventions in the

Guidance. Further, participants should

not file dual submissions to the E-Filing

system using different file naming

conventions. If the NRC naming

convention causes the loss of an •

interactive file feature, the participant

should consider providing the necessary

participants with, for example, courtesy

CD-ROM copies of the document, using

the original file naming convention. •

Comment. Using an Adobe Acrobat®

digital signature allows documents to be

internally authenticated. Participants

should be allowed to add certain digital

security features in order to prevent

unwanted changes to a PDF document.

Response. The agency currently

rejects and will continue to reject all

electronically-submitted files that

contain security protections. The NRC

must maintain full access and. use of the

files. Allowing participants to add

certain digital security features would

impede this function. Participants can

rely on the NRC's internal security and

archival processes to ensure that the

integrity of submitted materials is

maintained.

Comment. The proposed guidance

indicates no preference for the autorotate setting, and should be revised to

allow auto-rotate setting of "Collectively

by File" or "individually." This would

optimize a PDF file for screen viewing

in the case when a file contains text

pages oriented in portrait layout and

table pages oriented in landscape

layout.

Response. The distiller settings for

auto-rotate should be set to "off' as reflected in the Guidance. The NRC

relies on participants to correctly rotate

pages before they are submitted in order

to avoid the possibility of errors

attributed to the auto-correct function.

IV. Section-by-Section Analysis of

Substantive Changes

Significant changes to certain sections

in 10 CFR parts 2, 13, and 110 were

explained in detail in the proposed EFiling rule (see, 70 FR 74950; Dec. 16,

2005). Therefore, the section below-will

only address changes made following

publication of the proposed rule. These.

changes were made primarily in

response to public comments and

agency reconsideration.

A. Section 2.302-Filing of Documents

When Filings Are Complete

Section 2.302(d)(1) of the final rule

clarifies that the last act to transmit a

documinit electronically means that it is

the last act -required to transmit the

entire document.

B. Section 2.304-Formal Requirements

for Documents; Signatures; Acceptance

for Filing

1. Signatures

Section 2.304(d)(1) of the final rule

has been revised to change the method

for providing additional signatures, that

is, signatures other than that of the

person who is required to sign

electronically using a digital ID

certificate. Although the proposed rule

included descriptions of signing

electronic documents by digital ID

certificate and by the "Original signed

by" designation, the agency recognized

that this provision needed clarification

on the appropriate usage of the different

signature methods. All electronic

documents submitted via the E-Filing

system must be electronically signed

using a digital ID certificate. The

document must include a typed

signature block with the phrase "Signed

(electronically) by" designating.the

individual who signs the document

using his or her digital ID certificate.

Additional signatures may be added to

the document and to any attached

affidavit or other similar attachment,

which should be executed as instructed

-by the form specified in 28 U.S.C. 1746,

by typing the "Executed in Accord with

10 CFR 2.304(d)" designation on the

signature line. The Commission

considers these typed-in designations to

be official signatures under

§ 2.304(d)(1). Participants are no longer

required to retain paper copies of these

additional signatures in keeping with

the paperwork reduction goal of this

rule.

2. Pre-Filed Exhibits and Testimony

Currently, when parties submit prefiled testimony and exhibits

electronically via e-mail, they often

submit all of these documents as one

large file. For optimal use in the

agency's EHD and DDMS, SECY and the

Atomic Safety and Licensing Board

Panel must then separate the single file

into individual files so that the written

testimony of each witness/witness panel

constitutes one file. The same is true for

each of the evidentiary exhibits.

Although the presiding officer could

issue orders requiring parties to submit

these documents as individual files, it is more efficient generically to set forth

this requirement in the rules. Therefore,

the final rule adds a new paragraph (g)

to the end of § 2.304. This provision

requires that when written testimony or

evidentiary exhibits are filed via the E72 Fed. Reg. 49146 2007

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Filing system in advance of a hearing,

the written testimony of each

individual/panel and each exhibit must

be submitted as a separate electronic

file. This provision does not apply to

exhibits filed at earlier stages of a

proceeding, such as exhibits attached to

a motion, that are not expected to

become part of the evidentiary record of

the proceeding.

C. Section 2.305-Service of Documents;

Methods; Proof

Method of Service Accompanying a

Filing

The provisions in section 2.305(c)(4)-

(5) have been combined in the final rule

into § 2.305(c)4). Proposed § 2.305(c)(4)

would have required a certificate of

service to accompany any document

served upon participants. Proposed

§ 2.305(c)(5) would have required the

certificate of service to state the name

and address of persons served, as well

as the date and method of service. These

requirements remain in the final rule

but have, been combined into one

provision for clarity and brevity.

D. Section 2.306-Time Computation

The changes made to § 2.306 of the

final rule are threefold.

1. How Mixed Service Proceedings and

Multiple Service Methods Affect the

Number of Additional Days Granted for

Responding to the Service of a Notice or

Other Document

First, § 2.306(b)(3) of the final rule

gives the presiding officer discretion to

set forth the calculation of additional

time in the rare circumstance that a

participant may not be entitled to

receive an entire filing served by

multiple methods (e.g., when part of the

filing is public and part is encompassed

by a protective order to which the

participant is not a party). This change

is being made in response to a comment

on the proposed rule received by the

agency, as discussed previously in this

document. Second, the agency

reconsidered the computation of time.

set forth in the proposed rule. Section

2.306(b)(5) has been redesignated as

§ 2.306(c) and no longer provides that

an extra response day will be added for

documents served after a certain time.

Under the final rule, the computation of

time will begin the following day after

a pleading is served with no day added,

unless the presiding officer determines

otherwise. The agency changed the

approach from that in the proposed rule

for simplicity and fairness.

2. Timely Service

An additional change to this section

is in § 2.306(c) of the final rule, which

now sets a specific deadline for timely

filings. A document served in person or

by expedited service must be served by

5:00 p.m. Eastern Time of the day it is

due. This deadline was implied in the

proposed rule but not specifically

stated, so its applicability has been

clarified in the final rule. A document

served by the E-Filing system or by

electronic mail must be served by 11:59

p.m. Eastern Time of the day it is due.

This change is necessary to

accommodate overnight maintenance

periods when the E-Filing system will

be inoperable.

E. Part 13-Program Fraud Civil

Remedies

1. Section 13.2 Definitions

Revised § 13.2 of the final rule adopts

the definitions added to § 2.4.

2. Section 13.26 Filing and Service of

Papers

Section 13.26(a)(6) of the proposed

rule regarding signatures has not been

adopted because a new § 13.26(b) that

adopts the wording of § 2.304(d) has

been added to the final rule. Sections

13.26(b) and (c) of the proposed rule

become §§ 13.26(c) and (d) in the final

rule. Section 13.26(a)(7) of the proposed

rule regarding certificates of service has

not been adopted because § 13.26(c)(4)

contains a similar provision. The change

to § 13.26(a)(6) in the final rule

(§ 13.26(a)(8) in the proposed rule)

conforms the filing and service

requirements of Part 13 to those in

§ 2.302(d)(1).

3. Section 13.27 Computation of Time

Revised §§13.27(c)(3) and (c)(5) of the

final rule adopt the wording of

§§ 2.306(b)(3) and (b)(5).

F. Part 1 O-Public Participation

Procedures Concerning Export and

Import of Nuclear Equipment and

Materials License Applications

1. Section 110.89 Filing and Service

The changes to § 110.89 allow for, but

do not require E-Filing, and provide a

reference to §§ 2.302 and 2.305 for

participants who choose to file

electronically. The changes also remove

telegraph as a method of service.

2. Section 110.90 Computation of

Time

The changes to § 110.90 of the final

rule adopt the wording of § 2.306(b) for

participants who choose to file

electronically. The changes also provide

a new § 110.90(d) that conforms to new

§ 2.306(c).

3. Section 110.103 Acceptance of

Hearing Documents

New § 110.103(c) of the final rule

references § 2.304 for participants who

choose to file electronically. The

previous subsection 110.103(c) has been

redesignated § 110.103(d).

V. 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 rule establishes

requirements and standards for the

submission of filings to an electronic

docket in hearings under 10 CFR part 2

Subpart C. Through this rulemaking, the

agency is implementing the requirement

in the Government Paperwork

Elimination Act, Pub. L. 105-277 (44

U.S.C. 3504, note), that Federal agencies

allow electronic submissions of

information where practicable;

therefore, this rule does not constitute

the establishment of a Governmentunique standard as defined in Office of

Management and Budget (OMB)

Circular A-199 (1998).

VI. Environmental Impact: Categorical

Exclusion

This rule amends the filing and

service procedures in 10 CFR part 2,

Subpart C 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 nor an

environmental assessment has been -

prepared for this final rule. "

VII. Paperwork Reduction Act

Statement

This 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.).

VIII. Regulatory Analysis

A regulatory analysis has not been

prepared for this rule. The amendments

below will neither impose new, nor

relax existing, afety requirements and,

thus, do not call for the sort of safety/

cost analysis described in the agency's

regulatory analysis guidelines in

NUREG/BR-0058. Further, the NRC is.

required by the Government Paperwork

Elimination Act, Pub. L. 105-277 (44

U.S.C. 3504, note), to allow electronic

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submissions when practicable. The rule

states the requirements for electronic

filing and service in NRC adjudicatory

proceedings, except those conducted on

a high-level radioactive waste repository

application. The Commission, while

strongly preferring that participants file

and serve their documents

electronically, nonetheless permits

participants to submit paper filings if

the participants establish good cause for

doing so. Preparation of an analysis of

costs and benefits, therefore, would not

enhance the NRC's decision-making

process.

The NRC believes that this rule

reduces the current filing costs of

persons who participate in agency

adjudications. Currently, most

submissions to the Commission are

electronically mailed with a conforming

paper copy to follow. This rule

eliminates the need to mail the paper

copy. Because virtually all of the

participants in NRC hearings

electronically mail filings, they already

have most, if not all, of the requisite

equipment. Also, the cost of the

additional equipment and software is

minimal in relation to the savings

expected from eliminating the expenses

of copying and postage. Although a

participant may need to purchase a

program that converts documents to

PDF format foi approximately $500

each, the savings in copying and postage

costs could be hundreds, if not

thousands, of dollars.

IX. 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. It is possible that some poorly

funded entities seeking to intervene

would be adversely affected by- this rule,

but their number is likely to be small

and the final rules provide for

exemptions from the electronic filing

requirements for good cause. In this

regard, the NRC received no comments

raising implementation cost issues. 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

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.

X. Backfit Analysis

The NRC has determined that the

backfit rule does not apply to this rule

becaiise 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

50.109, 70.76, 72.62, and 76.76.

Therefore, a backfit analysis has not

been prepared for this final rule.

XI. Congressional Review Act

The NRC has determined that this is

not a major rule under the

Congressional Review Act, and the

Office of Management and Budget has

confirmed this determination.

List of Subjects

10 CFR Part 1

Organization and function

(Government agencies).

10 CFR Part 2

Administrative practice and

procedure, Antitrust, Byproduct

material, Classified information,

Environmental protection, Nuclear

materials, Nuclear power plants and

reactors, Penalties, Sex discrimination,

Source material, Special nuclear

material, Waste treatment and disposal.

10 CFR Part 13

Claims, Fraud, Organization and

function (Government agencies),

Penalties.

10 CFR Part 110

Administrative practice and

procedure, Classified information,

Criminal penalties, Export, Import,

Intergovernmental relations, Nuclear

materials, Nuclear power plants and

reactors, Reporting and recordkeeping

requirements, Scientific equipment.

m 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; the Government Paperwork

Elimination Act; and 5 U.S.C. 552 and

553; the NRC has adopted the following

amendments to 10 CFR parts 1, 2, 13,

dnd 110.

PART 1-STATEMENT OF

ORGANIZATION AND GENERAL

INFORMATION

O'l. The authority citation for part 1

continues to read as follows:

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.

* 2. In § 1.5, the introductory text of

paragraph (a) is revised to read as

follows:

§ 1.5 Location of principal offices and

Regional Offices.

(a) The principal NRC offices are

located in the Washington, DC, area.

Facilities for the service of process and

documents are maintained in the State

of Maryland at 11555 Rockville Pike,

Rockville, Maryland 20852-2738. The

agency's official mailing address is U.S.

Nuclear Regulatory Commission,

Washington, DC 20555-0001. The

locations of NRC offices in the

Washington, DC, area are as follows:

PART 2-RULES OF PRACTICE FOR

DOMESTIC LICENSING PROCEEDINGS

AND ISSUANCE OF ORDERS

* 3. The authority citation for part 2 is

revised to read as follows:

Authority: Secs. 161, 181, 68 Stat. 948,

953, as amended (42 U.S.C. 2201, 2231); sec.

191, as amended, Pub. L. 87-615, 76 Stat. 409

(42 U.S.C. 2241); sec. 201, 88 Stat. 1242, as

amended (42 U.S.C. 5841); 5 U.S.C. 552; sec.

1704, 112 Stat. 2750 (44 U.S.C. 3504 note).

Section 2.101 also issued under secs. 53,

62, 63, 81, 103, 104, 105, 68 Stat: 930, 932,"

933, 935; 936, 937, 938, as amended (42

U.S.C. 2073, 2092, 2093, 2111, 2133, 2134,

2135); sec. 114(f); Pub. L. 97-425, 96 Stat.

2213, as amended (42 U.S.C. 10143(f); sec.

102, Pub. L. 91-190, 83 Stat. 853, as amended

(42 U.S.C. 4332); sec. 301, 88 Stat. 1248 (42

U.S.C. 5871).

Sections 2.102, 2.103, 2.104, 2.105, 2.321

also issued under secs. 102, 103, 104, 105,

183i, 189, 68 Stat. 936, 937, 938, 954, 955,

as amended (42 U.S.C. 2132, 2133, 2134,

2135, 2233, 2239). Section 2.105 also issued

under Pub. L. 97-415, 96 Stat. 2073 (42

U.S.C. 2219). 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 2.301 also issued under 5 U.S.C. 554.

Sections 2.343, 2.346, 2.712, also issued

under 5 U.S.C. 557. Section 2.340 also issued

under secs. 135, 141, Pub. L. 97-425, 96 Stat.

2232, 2241 (42 U.S.C. 10155, 10161). Section

2.390 also issued under sec. 103, 68 Stat 936,

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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 f42 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).

E 4. Section 2.4 is amended by adding

the definitions of Digital ID certificate,

Electronic acknowledgment, Electronic

Hearing Docket, E-Filing System,

Guidance for Electronic Submissions to

the NRC, Optical Storage Medium, and

Participant in alphabetical order:

§2.4 Definitions.

Digital ID certificate means a file

stored on a participant's computer that

contains the participant's name, e-mail

address, and participant's digital

signature, proves the participant's

identity when filing documents and

serving participants electronically

through the E-Filing system, and

contains public keys, which allow for

the encryption and decryption of

documents so that the documents can be

securely transferred over the Internet.

Electronic acknowledgment means a

communication transmitted

electronically from the E-Filing system

to the submitter confirming receipt of

electronic filing and service.

Electronic Hearing Docket means the

publicly available Web site which

houses a visual presentation of the

docket and a link to its files.

E-Filing System means an electronic

system that receives, stores, and

distributes documents filed in

proceedings for which an electronic

hearing docket has been established.

Guidance for Electronic Submissions

to the NRC means the document issued

by the Commission that sets forth the

transmission methods and formatting

standards for filing and service under EFiling. The document can be obtained

by visiting the NRC's Web site at

http://www.nrc.gov.

Optical Storage Media means any

physical computer component that

meets E-Filing Guidance standards for

storing, saving, and accessing electronic

documents.

Participant means an individual or

organization that has petitioned to

intervene in a proceeding or requested

a hearing but that has not yet been

granted party status by an Atomic Safety

and Licensing Board or other presiding

officer. Participant also means a party to

a proceeding and any interested State,

local governmental body, or affected

Federally-recognized Indian Tribe that

seeks to participate in a proceeding

under § 2.315(b). For the purpose of

service of documents, the NRC staff is

considered a participant even if not

participating as a party.

0 5. Section 2.302 is revised to read as

follows:

§2.302 Filing of documents.

(a) Documents filed in Commission

adjudicatory proceedings subject to this

part shall be electronically transmitted

through the E-Filing system, unless the

Commission or presiding officer grants

an exemption permitting an alternative

filing method or unless the filing falls

within the scope of paragraph (g)(1) of

this section.-

(b).Upon an order from the

Commission or presiding officer

permitting alternative filing methods, or

as otherwise set forth in Guidance for,

Electronic Submissions to the NRC,

documents may be filed by:

(1) First-class mail: Office of the

Secretary, U.S. Nuclear Regulatory

Commission, Washington, DC 20555-

0001, Attention: Rulemakings and

Adjudications Staff; or

(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.

(c) All documents offered for filing

must be accompanied by a certificate of

service stating the names and addresses

of the persons served as well as the

manner and date of service.

(d) Filing is considered complete:

(1) By electronic transmission when

the filer performs the last act that it

must perform to transmit a document, in

its entirety, electronically;

(2) By first-class mail as of the time of

deposit in the mail;

(3) By courier, express mail, or

expedited delivery service upon

depositing the document with the

provider of the service; or (4) If a filing must be submitted by

two or more methods, such as a filing

that the Guidance for Electronic

Submission to the NRC indicates should

be transmitted electronically as well as

physically delivered or mailed on

optical storage media, the filing is

complete when all methods of filing

have been completed.

(e) For filings by electronic

transmission, the filer must make a good

faith effort to successfully transmit the

entire filing. Notwithstanding paragraph

(d) of this section, a filing will not be

considered complete if the filer knows

or has reason to know that the entire

filing has not been successfully

transmitted.

(f) Digital ID Certificates.

(1) Through digital ID certificates, the

NRC permits participants in the

proceeding to access the E-Filing system

to file documents, serve other

participants, and retrieve documents in

thgoceeding.

2Any participant or participant

representative that does not have a digital ID certificate shall request one.

from the NRC before that participant or

representative intends to make its first

electronic filing to the E-Filing system.

A participant or representative may

apply for a digital ID certificate on the

NRC Web site at http://www.nrc.gov/

site-help/e-submittals.himl.

(3) Group ID Certificate. A participant

wishing to obtain a digital ID certificate

valid for several persons may obtain a

group digital ID certificate. A Group ID

cannot be used to file- documents. The

Group ID provides access to the E-Filing

system for the individuals specifically

identified in the group's application to

retrieve documents recently received by

the system. The Group ID also enables a group of people, all of whom may not

have individual digital ID certificates, to

be notified when a filing has been made

in a particular proceeding.

(g) Filing Method Requirements.

(1) Electronic filing. Unless otherwise

provided by order, all filings must be

made as electronic submissions in a

manner that enables the NRC to receive,

read, authenticate, distribute, and

archive the submission, and process and

retrieve it a single page at a time.

Detailed guidance on making electronic

submissions may be found in the

Guidance for Electronic Submissions to

the NRC and on the NRC Web site at

htt j://www.nrc.gov/site-helplesubmittals.html. If a filing contains

sections of information or electronic

formats that may not be transmitted

electronically for security or other

reasons, the portions not containing

those sections will be transmitted

electronically to the E-Filing system. In

addition, optical storage media (OSM)

containing the entire filing must be

physically delivered or mailed. In such

cases, the submitter does not need to

apply to the Commission or presiding

officer for an exemption to deviate from

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the requirements in paragraph (g)(1) of

this section.

(2) Electronic transmission

exemption. Upon a finding of good

cause, the Commission or presiding

officer can grant an exemption from

electronic transmission requirements

found in paragraph (g)(1) of this section

to a participant who is filing electronic

documents. The exempt participant is

permitted to file electronic documents

by physically delivering or mailing an

OSM containing the documents. A

participant granted this exemption

would still be required to meet the

electronic formatting requirement in

paragraph (g)(1) of this section.

(3) Electronic document exemption.

Upon a finding of good cause, the

Commission or presiding officer can

exempt a participant from both the

electronic (computer file) formatting

and electronic transmission

requirements in paragraph (g)(1) of this

section. A participant granted such an

exemption can file paper documents

either in person or by courier, express

mail, some other expedited delivery

service, or first-class mail, as ordered by

the Commission or presiding officer.

(4) Requesting an exemption. A filer

seeking an exemption under paragraphs

(g)(2) or (g)(3) of this section must

submit the elemption request with its

first filing in the proceeding. In the

request, a filer must show good cause as

to why it cannot file electronically. The

filer may not change its formats or

delivery methods for filing until a ruling

on the exemption request is issued.

Exemption requests under paragraphs

(g)(2) or (g)(3) of this section sought after

the first filing in the proceeding will be

granted only if the requestor shows that

the interests of fairness so require.

* 6. Section 2.304 is revised to read as

follows:

§2.304 Formal requirements for

documents; signatures; acceptance for

filing.

(a) Docket numbers and titles. Each

document filed in an adjudication to

which a docket number has been

assigned must contain a caption setting

forth the docket number and the title of

the proceeding and a description of the

document (e.g., motion to quash

subpoena).

(b) Paper documents. In addition to

the requirements in this part, paper

documents must be stapled or bound on

the left side; typewritten, printed, or

otherwise reproduced in permanent

form on good unglazed paper of

standard letterhead size; signed in ink

by the participant, its authorized

representative, or an attorney having

authority with respect to it; and filed

with an original and two conforming

(c) Format. Each page in a document

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.

(d) Signatures. The original of each

document must be signed by the

participant 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;

phone number, and e-mail address; and

the date of signature. The signature of a

person signing a pleading or other

similar document submitted by a

-participant 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. The

signature of a person signing an affidavit

or similar document, which should be

submitted in accord with the form

outlined in 28 U.S.C. 1746, is a

representation that, under penalty of

perjury, the document is true and

correct to the best of that individual's

knowledle and belief. If a document is

not signed, or is signed with intent to

defeat the purpose of this section, it may

be struck.

(1) An electronic document must be

signed using a participant's or a

participant representative's digital ID

certificate. Additional signatures can be

added to the electronic document,

including to any affidavits that

accompany the document, by a typed-in

designation that indicates the signer

understands and acknowledges that he

or she is assenting to the representations

in paragraph (d) of this section.

Ci) When signing an electronic

document using a digital ID certificate,

the signature page for the electronic

document should contain a typed

signature -block that includes the phrase

"Signed (electronically) by" typed onto

the signature line; the name and the

capacity of the person signing; the

person's address, phone number, and email address; and the date of signature.

-(ii) If additional individuals need to

sign an electronic document, inclVding

any affidavits that accompany the

document, such individuals must sign

by inserting a typed signature block in

the electronic document that includes

the phrase "Executed in Accord with 10

CFR 2.304(d)" or its equivalent typed on

the signature line as well as the name

arid the capacity of the person signing;

the person's address, phone number,

- and e-mail address; and the date of

signature to the extent any of these

items are different from the information

provided for the digital ID certificate

signer.

(2) Paper documents must be signed

in ink.

(e) Designation for service. The first

document filed by any participant in a

proceeding must designate the name

and address of a person on whom

service may be made. This document

must also designate the e-mail address,

if any, of the person on whom service

may be made.

(f) Acceptance for filing. Any

document that fails to conform to the

requirements of this section may be

refused acceptance for filing by the

Secretary or the presiding officer 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.

(g) Pre-filed written testimony and

exhibits. In any instance in which a

participant submits electronically

through the E-Filing system written

testimony or hearing exhibits in

advance of a hearing, the written

testimony of each individual witness or

witness panel and each individual

exhibit shall be submitted as an

individual electronic file.

* 7. Section 2.305 is revised to read as

follows:

§2.305 Serviceof documents; methods;

proof.

• (a) Service of documents by the

Commission. Except for subpoenas, the

Commission shall serve all orders,

decisions, notices, and other documents

to all participants, by the same delivery

method those participants use to file

and accept service.

(b) Who may be served. Any

document required to be served upon a

participant shall be served upon that

person or upon the representative

designated by the participant or by law

to receive service of documents. When

a participant has appeared by attorney,

service shall be made upon the attorney

of record.

(c) Method of service accompanying a

filing. Service must be made

electronically to the E-Filing system.

Upon an order from the Commission or

presiding officer permitting alternative

filing methods under § 2.302(g)(4),.

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service may be made by personal

delivery, courier, expedited delivery

service, or by first-class, express,

certified or registered mail. As to each

participant that cannot serve

electronically, the Commission or

presiding officer shall require service by

the most expeditious means permitted

under this paragraph that are available

to the participant, unless the

Commission or presiding officer finds

that this requirement would impose

undue burden or expense on the

participant.

(1) Unless otherwise provided in this

section, a participant will serve

documents on the other participants by

the same method by which those

participants filed.

(2) A participant granted an

exemption under § 2.302(g)(,2) will serve

the presiding officer and the

participants in the proceeding that filed

electronically by physically delivering

or mailing optical storage media

containing the electronic document.

(3) A participant granted an

exemption under § 2.302(g)(3) will serve

the presiding officer and the other

participants in the proceeding by

physically delivering or mailing a paper

copy.

(4) To provide proof of service, any

paper served upon participants to the

proceeding as may be required by law,

rule, or order of the presiding officer

must be accompanied by a signed"

certificate of service stating the names

and addresses of the persons served as

well as the method and date of service.

(d) Method of service not

accompanying a filing. Service of

demonstrative evidence, e.g., maps and

other physical evidence, may be made

by first-class mail in all cases, unless the

presiding officer directs otherwise or the

participant desires to serve by a faster

method. In instances when service of a

document, such as a discovery

document under § 2.336, will not

accompany a filing with the agency, the

participant may use any reasonable

method of service"to which the recipient

agrees.

(e) Service on the Secretary. (1) All

motions, briefs, pleadings, and other.

documents must be served on the

Secretary of the Commission by the

same or equivalent method, such as by

electronic transmission or first-class

mail, that they are served upon the

presiding officer, so that the Secretary

will receive the filing at approximately

the same time that it is received by the

presiding officer to which the filing is

directed.

(2) When pleadings are personally

delivered to a presiding officer

conducting proceedings outside the

Washington, DC area, service on the

Secretary may be accomplished

electronically to the E-Filing system, as

well as by courier, express mail, or

expedited delivery service.

(3) Service of demonstrative evidence

(e.g., maps and other physical exhibits)

on the Secretary of the Commission may

be made by first-class mail in all cases,

unless the presiding officer directs

otherwise or the participant desires to

serve by a faster method. All pre-filed

testimony and exhibits shall be served

on the Secretary of the Commission by

the same or equivalent method that it is

served upon the presiding officer to the

proceedings, i.e., electronically to the EFiling system, personal delivery or

courier, express mail, or expedited

delivery service.

(4) The addresses for the Secretary

are:

(i) Internet: The E-Filing system at

http://www.nrc.gov.

(ii) First-class mail: Office of the

Secretary, U.S. Nuclear Regulatory

Commission, Washington, DC 20555-

0001, Attention: Rulemakings and

Adjudications Staff; and

(iii) Courier, express mail, and

expedited delivery services: Office of

the Secretary, Sixteenth Floor, One

White Flint North, 11555 Rockville

Pike, Rockville, Maryland 20852,

Attention: Rulemakings and

Adjudications Staff.

(f) When service is complete. Service

upon a participant is complete:

(1) By the E-Filing system, when filing

electronically to the E-Filing system is

considered complete under § 2.302(d).

(2) By personal delivery, upon

handing the document to the person, or

leaving it at his or her office with that

person's -clerk or other person in charge

or, if there is no one in charge, leaving

it in a conspicuous place in the office,

or if the office is closed or the person

to be served has no office, leaving it at

his or her usual place of residence with

some person of suitable age and

discretion then residing there;

(3) By mail, upon deposit in the

United States mail, properly stamped

and addressed;

(4) By expedited service, upon

depositing the document with the

provider of the expedited service; or

(5) When service cannot be effected

by a method provided by paragraphs

(f)(1)-(4) of this section, by any other

method authorized by law.

(6) When two or more methods of

service are required, service is

considered complete when service by

each method is complete under

paragraphs (f)(1)-(4) of this section.

. (g) Service on the NRC staff.

(1) Service shall be made upon the

NRC staff of all documents required to

be filed with participants and the

presiding officer in all proceedings,

including those proceedings where the

NRC staff informs the presiding officer

of its determination not to participate as

a party. Service upon the NRC staff shall

be by the same or equivalent method as

service upon the Office of the Secretary

and the presiding officer, e.g.,

electronically, personal delivery or

courier, express mail, or expedited

delivery service.

(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 participants of its

determination not- to participate,

designate a person and address for

service of documents.

* 8. Section 2.306 is revised to read as

follows:

§ 2.306 Computation of time.

(a) 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 or

Sunday, a Federal legal holiday at the

place where the action or event is to

occur, or a day upon which, because of

an emergency closure of the Federal

government in Washington, DC, NRC

Headquarters does not open for

business, in which event the period

runs until the end of the next day that

is not a Saturday, Sunday, Federal legal

holiday, or emergency closure.

(b) Whenever a participant has the

right or is required to do some act

within a prescribed period after the

service of a notice or other document

upon him or her, no additional time is

added to the prescribed period except in

the following circumstances:

(1) If a notice or document is served

upon a participant, by first-class mail

only, three (3) calendar days will be

added to the prescribed period for all

the participants in the proceeding.

(2) If a notice or document is served

upon a participant, by express mail or

other expedited service only, two (2)

calendar days will be added to the

prescribed period for all the participants

in the proceeding.

(3) If a document is to be served by

multiple service methods, such as

partially electronic and entirely on

optical storage media, the additional

number of days is computed according

to the service method used to deliver

the entire document, excluding courtesy

copies, to all of the other participants in

the proceeding. The presiding officer

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may determine the calculation of

additional days when a participant is

not entitled to receive an entire filing

served by multiple methods.

(4) In mixed service proceedings

when all participants are not using the

same filing and service method, the

number of days for service will be

determined by the presiding officer

based on considerations of fairness and

efficiency.

(c) To be considered timely, a

document must be served:

(1) By 5 p.m. Eastern Time for a

document served in person or by

expedited service; and

(2) By 11:59 p.m. Eastern Time for a

document served by the E-Filing system.

* 9. In § 2.346, the introductory text is

revised to read as follows:

§ 2.346 Authority of the Secretary.

When briefs, motions or other

documents are submitted to the

Commission itself, as opposed to

officers who have been delegated

authority to act for the Commission, the

Secretary or the Assistant Secretary is

authorized to:

m 10. In § 2.390, paragraph (b)(1)(iii) is

revised to read as follows:

§ 2.390 'Public inspections, exemptions,

requests for withholding.

(b)* * *

(1) * * *

(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. This statement must 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 informatiofi 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 infotmation sought to be withheld

shall be incorporated, as far as possible,

into a separate document. 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. * * * * *

* 11. In § 2.808, the introductory text is

revised to read as follows:

§2.808 Authority of the Secretary to rule

on procedural matters.

When briefs, motions or other

documents listed herein are submitted

to the Commission itself, as opposed to

officers who have been delegated

authority to act for the Commission, the

Secretary or the Assistant Secretary is

authorized to: * * * * *

PART 13-PROGRAM FRAUD CIVIL

REMEDIES

m 12. The authority citation for part 13

is revised to read as follows:

Auihority: Public Law 99-509, secs. 6101-

6104, 100 Stat. 1874 (31 U.S.C. 3801-3812);

sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504

note). Sections 13.13 (a) and (b) also issued

under section Pub. L. 101-410, 104 Stat. 890,

as amended by section 31001(s), Pub. L. 104-

134, 110 Stat. 1321-373 (28 U.S.C. 2461

note).

* 13. Section'13.2 is amended by adding

the definitions of Digital ID certificate,

Electronic acknowledgment, Electronic

Hearing Docket, E-Filing System,

Guidance for Electronic Submissions to

the NRC, Optical Storage Medium, and

Participant in alphabetical order:

§ 13.2 Definitions.

Digital ID certificate means a file

stored on a participant's computer that

contains the participant's name, e-mail

address, and participant's digital

signature, proves the participant's

identity when filing documents and

serving participants electronically

through the E-Filing system, and

contains public keys, which allow for

the encryption and decryption of

documents so that the documents can be

securely transferred over the Internet.

Electronic acknowledgment means a

communication transmitted

electronically from the E-Filing system

to the submitter cqnfirning receipt of

electronic filing and service.

Electronic Hearing Docket means the

publicly available Web site which

houses a visual presentation of the

docket and a link to its files.

E-Filing System means an electronic

system that receives, stores, and

distributes documents filed in

proceedings for which an electronic

hearing docket has been established. * * * * *

Guidance for Electronic Submissions

to the NRC means the document issued

by the Commission that sets forth the

transmission methods and formatting

standards for filing and service under EFiling. The document can be obtained

by visiting the NRC's Web site at http://

www.nrc.gov.

* * * * *

Optical Storage Media means any

physical computer component that

meets E-Filing Guidance standards for

storing, saving, and accessing electronic

documents.

Participant means an individual or

organization that has petitioned to

intervene in a proceeding or requested

a hearing but that has not yet been

granted party status by an Atomic Safety

and Licensing Board or other presiding

officer. Participant also means a party to

a proceeding and any interested State,

local governmental body, or affected

Federally-recognized Indian Tribe that

seeks to participate in a proceeding in

accordance with § 2.315(b). For the

purpose of service of documents, the

NRC staff is considered a participant

even if not participating as a party. * * * * *

E 14. In § 13.9, paragraph (a) is revised

to read as follows:

§ 13.9 Answer.

(a) The defendant may request a

hearing by filing an answer with the

reviewing official within thirty (30) days

of service of the complaint. Service of

an answer shall be made by

electronically delivering a copy to the

reviewing official in accordance with

§ 13.26. An answer shall be deemed a

request for hearing.

* 15. Section 13.26 is revised to read as

follows:

§ 13.26 Filing and service of papers.

(a) Filing. (1) Unless otherwise

provided by order, all filings must be

made as electronic submissions in a

manner that enables the NRC to receive,

read, authenticate, distribute, and

archive the submission, and process and

retrieve it a single page at a time.

Detailed guidance on making electronic

submissions may be found in the EFiling Guidance and on the NRC Web

site at http://www.nrc.govlsite-helplesubmittals.html. If a filing contains

sections of information or electronic

formats that may not be transmitted

electronically for security or other

reasons, portions not containing those

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sections will be transmitted

electronically to the E-Filing system. In

addition, optical storage media (OSM)

containing the entire filing must be

physically delivered or mailed. In such

cases, the submitter does not need to

apply to the Commission for an

exemption to deviate from the.

requirements in paragraph (a) of this

section.

(2) Electronic transmission

exemption. The ALJ may relieve a

participant who is filing electronic

documents of the transmission

requirements in paragraph (a) of this

section. Such a participant will file

electronic documents by physically

delivering or mailing an OSM

containing the documents. The

electronic formatting requirement in

paragraph (a) of this section must be

met.

(3) Electronic document exemption.

The ALJ may relieve a participant of

both the electronic (computer file)

formatting and transmission

requirements in paragraph (a)(1) of this

section. Such a participant will file

paper documents physically or by mail

to the Secretary, U.S. Nuclear

Regulatory Commission, Washington,

DC 20555-0001, Attention: Rulemakings

and Adjudications Staff. Filing-by mail

is complete upon deposit in the mail.

(4) Requesting an exemption. A

participdnt seeking an exemption under

paragraphs (a)(2) or (a)(3) of this section

must submit the exemption request with

its first filing in the proceeding. In the

request, the requestor must show good

cause as to why it cannot file

electronically. The filer may not change

its formats and delivery methods for

filing until a ruling on the exemption

request is issued; Exemption requests

submitted after the first filing in the

proceeding will be granted only if the

requestor shows that the interests of

fairness so require.

(5) Every pleading and document filed

in the proceeding shall contain a

caption setting forth the title of the

action, the case number assigned by the

presiding officer, and a designation of

the document (e.g., motion to quash

subpoena).

(61 Filing is complete when the filer

performs the last act that it must

perform to submit a document, such as

hitting the send/submit/transmit button

for an electronic transmission or

depositing the document, in its entirety,

in a mailbox.

(b) Signatures. The original of each

document must be signed by the

participant 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,

phone number, and e-mail address; and

the date of signature. The signature of a

person signing a pleading or other

similar document submitted by a

participant 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. The

signature of a person signing an affidavit

or similar document, which should be

submitted in accord with the form

outlined in 28 U.S.C. 1746, is a

representation that, under penalty of

perjury, the document is true and

correct to the best of that individual's

knowledge and belief. If a document is

not signed, or is signed with intent to

defeat the purpose of this section, it may

be struck.

(1) An electronic document must be

signed using a participant's or a

participant representative's digital ID

certificate. Additional signatures can be

added to the electronic document,

including to any affidavits that

accompany the document, by a typed-in

designation that indicates the signer

understands and acknowledges that he

or she is assenting to the representations

in paragraph (d) of this section.

(i When signing an electronic

document using a digital ID certificate,

the signature page for the electronic

document should contain a typed

signature block that includes the phrase

"Signed (electronically) by" typed onto

the signature line; the name and the

capacity of the person signing; the

person's address, phone number, and email address; and the date of signature.

(ii) If additional individuals need to -

sign an electronic document, including

any affidavits that accompany the

document, these individuals must sign

by inserting a typed signature block in

the electronic document that includes

the phrase "Executed in Accord with 10

CFR 2.304(d)" or its equivalent typed on

the signature line as well as the name

and the capacity of the person signing;

the person's address, phone number,

and e-mail address; and the date of

signature to the extent any of these

items are different from the information

provided for the digital ID certificate

signer.

(2) Paper documents must be signed

in ink.

(c) Service. A participant filing a

document with the ALJfshall at the time

of filing, serve a copy of such document

on every other participant. Service upon

any participant of any document other

than those required to be served as

prescribed in § 13.8 shall be made

electronically to the E-Filing system.

When a participant is represented by a

representative, service shall be made

upon such representative in lieu of the

actual participant. Upon an order from

the ALJ permitting alternative filiig

methods under paragraphs (a)(2) or

(a)(3) of this section, service may be

made by physical delivery or mail. As

to each participant that cannot serve

electronically, the ALJ shall require

service by the most expeditious means

permitted under this paragraph that are

available to the participant, unless the

ALJ finds that this requirement would

impose undue burden or expense on the

participant.

(1) Unless otherwise provided in this .paragraph, a participant will serve

documents on the other participants by

the same method that those participants

filed.

(2) A participant granted an

exemption under paragraph (a)(2) of this

section will serve the participants in the

proceeding that filed electronically by

physically delivering or mailing an

OSM containing the electronic

document.

(3) A participant granted an

exemption under paragraph (a)(3) will

serve the other participants in the

proceeding by physically delivering or

mailing a paper copy.

(4) A certificate of service stating the

names and addresses of the persons

served as well as the method and date

of service must accompdny any paper

served upon participants to the

proceeding.

(5) Proof of service, which states the

name and address of the person served

as well as the method and date of

service, may be made as required by

law, by rule, or by order of the

Commission.

* 16. Section 13.27 is revised to read as

follows:

§ 13.27 Computation of time.

(a) In computing any period of time

under this part or in an order issued

thereunder, the time begins with the day

following the act, event, or default, and

includes the last day of the.period,

unless it is a Saturday or Sunday, a

Federal legal holiday at the place where

the action or event is to occur, or a day

on which, because of emergency closure

of the federal government in

Washington, DC, NRC Headquarters

does not open for business, in which

event it includes the next day that is not

a Saturday, Sunday, holiday or

emergency -closure.

(b) When the period of time allowed

is less than seven (7) days, intermediate

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49154 Federal Register / Vol. 72, No. 166 /Tuesday, August 28, 2007 / Rules and -Regulations

Saturdays, Sundays, Federal legal

holidays, and emergency closures shall

be excluded from the computation.

(c) Whenever an action is required

within a prescribed period by a

document served pursuant to § 13.26, no

additional time is added to the

prescribedperiod except in the

following circumstances:

(1) If a notice or docunlent is served

upon a participant, by first-class mail

only, three (3) calendar days will be

added to the prescribed period for all

the participants in the proceeding.

(2) If a notice or document is served

upon a participant, by express mail or

other expedited service only, two (2)

calendar days will be added to the

prescribed period for all the participants

in the proceeding.

(3) If a document is to be served by

multiple service methods, such as

partially electronic and entirely on an

OSM, the additional number of days is

computed according to the service

method used to deliver the entire

document, excluding courtesy copies, to

all of the other participants in the

proceeding. The presiding officer may

determine the calculation of additional

days when a participant is not entitled

to receive an entire filing served by

multiple methods. . (4) In mixed service proceedings

where all participants are not using the

same filing and service method, the

number of days for service will be

determined by the presiding officer

based on considerations of fairness and

efficiency. The same number of

additional days will be added to the

prescribed period for all the participants

in the proceeding with the number of

days being determined by the slowest

method of service being used in the

proceeding.

(d) To be considered timely, a

document must be served:

(1) By 5 p.m. Eastern Time for a

document served in person or by

expedited service; and

2) By 11:59 p.m. Eastern Time for a

document served by the E-Filing system.

PART 110--EXPORT AND IMPORT OF

NUCLEAR EQUIPMENT AND

MATERIAL

m 17. The authority citation for part 110

continues to read as follows:

Authority: Secs. 51, 53, 54, 57, 63, 64, 65,

81, 82,103, 104, 109, 111,126, 127, 128, 129,

134, 161,170H., 181, 182, 187, 189, 68 Stat.

929, 930, 931, 932, 933, 936, 937, 948, 953,

954, 955, 956, as amended (42 U.S.C. 2071,

2073, 2074, 2077, 2092-2095, 2111, 2112,

2133, 2134, 2139, 2139a, 2141, 2154-2158,

2160d., 2201, 2210h., 2231-2233, 2237,

2239); sec. 201, 88 Stat. 1242, as amended (42

U.S.C. 5841); sec. 5, Pub. L. 101-575, 104

Stat. 2835 (42 U.S.C. 2243); sec. 1704, 112

Stat. 2750 (44 U.S.C. 3504 note).

Sections 110.1(b)(2) and 110.1(b)(3) also

issued under Pub. L. 96-92, 93 Stat. 710 (22

U.S.C. 2403). Section 110.11 also issued

under sec. 122, 68 Stat. 939 (42 U.S.C. 2152)

and secs. 54c and 57d, 88 Stat. 473, 475 (42

U.S.C. 2074). Section 110.27 also issued

under sec. 309(a), Pub. L. 99-440. Section

110.50(b)(3) also issued under sec. 123, 92

Stat. 142 (42 U.S.C. 2153). Section 110.51

also issued under sec. 184, 68 Stat. 954, as amended (42 U.S.C. 2234). Section 110.52

also issued under sec. 186, 68 Stat. 955 (42

U.S.C. 2236). Sections 110.80-110.113 also

issued under 5 U.S.C. 552, 554. Sections

110.130-110.135 also issued under 5 U.S.C.

553. Sections 110.2 and 110.42(a)(9) also

issued under sec. 903, Pub. L. 102-496 (42

U.S.C. 2151 et seq.).

m 18. Section 110.89 is revised to read

as follows:

§110.89 Filing and service.

(a) Hearing requests, intervention

petitions, answers, replies and

accompanying documents must be filed

with the Commission by delivery or by

mail to the Secretary, U.S. Nuclear

Regulatory Commission, Washington,

DC 20555-0001, Attention: Rulemakings

and Adjudications Staff or via the EFiling system, following the procedure

set forth in 10 CFR 2.302. Filing by mail

is complete upon deposit in the mail.

Filing via the E-Filing system is

completed by following the

requirements described in 10 CFR

2.302(d).

(b) All filing and Commission notices

and orders must be served upon the

applicant; the General Counsel, U.S.

Nuclear Regulatory Commission,

Washington, DC 20555; the Executive

Secretary, Department of State,

Washington, DC 20520; and participants

if any. Hearing requests, intervention

petitions, and answers and replies must

be served by the person filing those

pleadings.

(c) Service is completed by:

(1) Delivering the paper to the person;

or leaving it in his office with someone

in charge; or, if there is no one in

charge, leaving it in a conspicuous place

in the office; or, if he has no office or

it is closed, leaving it at his usual place

of residence with some occupant of

suitable age and discretion;

(2) Following the requirements for EFiling in 10 CFR 2.305;

(3) Depositing it in the United States

mail, express mail, or expedited

delivery service, properly stamped and

addressed; or (4) Any other manner authorized by

law, when service cannot be made as

provided in paragraphs (c)(1) through

(3) of this section.

(d) Proof of service, stating the name

and address of the person served and

the manner and date of service, shall be

shown, and may be made by:

(1) Written acknowledgment of the

person served or an authorized

representative;

(2) The-certificate or affidavit of the

person making the -service; or

(3) Following the requirements for EFiling in 10 CFR 2.305.

(e) The Commission may make special

provisions for service when

circumstances warrant.

0 19. Section 110.90 is revised to read

as follows:

§110.90 Computation of time.

(a) 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 or

Sunday, a Federal legal holiday at the

place where the action or event is to

occur, or a day upon which, because of

an emergency closure of the Federal

government in Washington, DC, NRC

Headquarters does not open for

business, in which event the period

runs until the end of the next day that

is not a Saturday, Sunday, holiday, or

emergency closure.

(b) In time periods of less than seven

(7) days, intermediate Saturdays,

Sundays, Federal legal holidays, and

emergency closures are not counted.

(c) Whenever an action is required

within a prescribed period by a

document served under § 110.89 of this

part, no additional time is added to the

prescribed period except as set forth in

10 CFR 2.306(b).

(d) To be considered timely, a

document must be served:

(1) By 5 p.m. Eastern Time for a

document served in person or by

expedited service; and

(2) By 11:59 p.m. Eastern Time for a

document served by the E-Filing system.

* 20. Section 110.103 is revised to read

as follows:

§ 110.103 Acceptance of hearing

documents.

(a) Each document filed or issued

must be clearly legible and bear the

docket number, license application

number, and hearing title.

(b) Each document shall be filed in

one original and signed by the

participant or their authorized

representative, with their address and

date of signature indicated. The

signature is a representation that the

document is submitted with full

authority, the signer knows its contents,

and that, to the best of his knowledge,

the statements made in it are true.

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(c) Filings submitted using the E-filing

system must follow the requirements

outlined in 10 CFR 2.304.

(d) A document not meeting the

requirements of this section may be

returned with an explanation for

nonacceptance and, if so, will not be

docketed.

Dated at Rockville, Maryland, this 21st day

of August, 2007.

For the Nuclear Regulatory Commission.

Annette Vietti-Cook,

Secretary of the Commission.

[FR Doc. E7-16898 Filed 8-27-07; 8:45 am]

BILLING CODE 7590-01-P

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JUNE 2011 APPLICATIONS-TABLE OF CONTENTS i 

TABLE OF CONTENTS 

APPLICATIONS

1.0 APPLICATION FOR LICENSE/PERMIT .................................... Ap 1 

1.1 Applicants.................................................................................. Ap 1 

1.2 Renewal Applications – See Section 6.11 for Reactor

 License Renewal Proceedings ............................................. Ap 1 

1.3 Applications for Early Site Review .......................................... Ap 2 

1.4 Application for License Transfer ............................................. Ap 3 

1.5 Form of Application for Construction Permit/Operating

 License....................................................................................... Ap 3 

1.5.1 Form of Application for Initial License/Permit .............................. Ap 3 

1.5.2 Form of Renewal Application for License/Permit (RESERVED) . Ap 3 

1.6 Contents of Application ........................................................... Ap 4 

1.6.1 Incomplete Applications .............................................................. Ap 4 

1.6.2 Material False Statements ......................................................... Ap 4 

1.7 Docketing of License/Permit Application ............................... Ap 7 

1.8 Notice of License/Permit Application ..................................... Ap 7 

1.8.1 Publication of Notice in Federal Register .................................... Ap 7 

1.8.2 Amended Notice After Addition of New Owners (RESERVED) .. Ap 7 

1.8.3 Notice on License Renewal (RESERVED) ................................. Ap 8 

1.8.4 SUNSI/SGI Access Procedures for Potential Parties ................. Ap 8 

1.9 Staff Review of License/Permit Application ........................... Ap 9 

1.10 Withdrawal of Application for License/Permit/Transfer ........ Ap 12 

1.10.1 Withdrawal without Prejudice ...................................................... Ap 14 

1.10.2 Withdrawal with Prejudice ........................................................... Ap 15 

1.11 Abandonment of Application for License/Permit................... Ap 16 
This page intentionally left blank. 
1.0 APPLICATION FOR LICENSE/PERMIT 

1.1 Applicants

All co-owners of a nuclear power plant must be co-applicants for NRC licenses for the 

facility. To hold otherwise could place a cloud on significant areas of the NRC’s regulatory 

authority and is not consistent with the safety considerations with which Congress was 

primarily concerned in the Atomic Energy Act. Pub. Serv. Co. of Indiana, Inc. (Marble Hill 

Nuclear Generating Station, Units 1 & 2), ALAB-459, 7 NRC 179, 200-201 (1978). The 

Appeal Board's decision in Marble Hill thus overrules the Licensing Board’s holding to the 

contrary in Omaha Pub. Power Dist. (Fort Calhoun Station, Unit 2), LBP-77-5, 5 NRC 437 

(1977). 

1.2 Renewal Applications – See Section 6.11 for Reactor License Renewal 

Proceedings

Applications for a renewal of a license may be filed with the NRC. 10 C.F.R. § 2.109 

provides that where an application for renewal is filed at least thirty (30) days prior to the 

expiration of an existing license authorizing activities of a continuing nature, the existing 

license will not be deemed to expire until the renewal application has been finally 

determined. A construction permit is a “license” for these purposes. 

10 C.F.R. § 2.109(a)(1993). See AEA § 185, 42 U.S.C. § 2235 (“[f]or all other purposes of 

this Act, a construction permit is deemed to be a ‘license’”); see also 10 C.F.R. § 2.4. 

Texas Utils. Elec. Co. (Comanche Peak Steam Electric Station, Unit 2), CLI-93-10, 

37 NRC 192, 202 n.38 (1993). 

As part of its licensing and oversight responsibilities, the Commission may consider the 

adequacy of a licensee’s corporate organization and the integrity of its management. The 

past performance of management may help indicate whether a licensee will comply with 

agency standards. Georgia Inst. of Tech. (Georgia Tech Research Reactor), CLI-95-12, 

42 NRC 111, 120 (1995). 

For environmental issues listed in Subpart A, Appendix B of 10 C.F.R. Part 51 as 

Category 1 issues, the Commission resolved the issues generically for all plants and 

those issues are not subject to further evaluation in any license renewal proceeding. See

61 Fed. Reg. 28,467 (1996). Consequently, the Commission’s license renewal 

regulations also limit the information that the Applicant must include in its environmental 

report, see 10 C.F.R. § 51.53(c), and the matters the agency must consider in draft and 

final supplemental environmental impact statements (SEISs) to the generic environmental 

impact statement (GEIS). 10 C.F.R. §§ 51.71 and 51.95(c), respectively. See Florida 

Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), LBP-01-6, 

53 NRC 138, 154 (2001). See generally Entergy Nuclear Generation Co. and Entergy 

Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP-06-23, 64 NRC 257, 

278-79 (2006). 

Because NRC regulations provide that operating license renewal applications do not have 

to furnish information regarding the onsite storage of spent fuel or high-level waste 

disposal, low-level waste storage and disposal, and mixed waste storage and disposal, 

these subjects are barred as contentions. Duke Energy Corp. (Oconee Nuclear Station, 

Units 1, 2, & 3), LBP-98-33, 48 NRC 381, 391 (1998). 

JUNE 2011 APPLICATIONS 1
Even when a GEIS has resolved a Category 1 issue generically, the applicant must still 

provide additional analysis in its Environmental Report if new and significant information 

may bear on the applicability of the Category 1 finding at the particular plant. 

10 C.F.R. § 51.53(c)(iv). The Commission has identified three methods by which 

petitioners can petition the NRC to address new and significant information that has arisen 

after the GEIS on Category 1 issues was finalized: (1) petitioners may seek a waiver to a 

rule if they possess information that may show that a generic rule would not serve its 

purpose at the specific plant; (2) petitioners may petition the NRC to initiate a new 

rulemaking process; or (3) petitioners may use the SEIS notice and comment process to 

request that the NRC forgo use of the suspect generic finding and suspend license 

renewal proceedings, pending a new rulemaking or update of the GEIS. 

10 C.F.R. Part 51, Subpart A, Appendix B, Category 2 issues are site specific and must 

be addressed by the applicant in its environmental report and by the NRC in its draft and 

final supplemental environmental impact statements for the facility. Florida Power & Light 

Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), LBP-01-6, 53 NRC 138, 153 

(2001). The scope of the draft and final supplemental environmental impact statement is 

limited to the matters that 10 C.F.R. § 51.53(c) requires the applicant to provide in its 

environmental report. These requirements do not include severe accident risks, but only 

“severe accident mitigation alternatives (SAMA).” 10 C.F.R. § 51.53(c)(3)(ii)(L). The 

Commission, therefore, has left consideration of SAMAs as the only Category 2 issue with 

respect to severe accidents. Florida Power & Light Co. (Turkey Point Nuclear Generating 

Plant, Units 3 & 4), LBP-01-6, 53 NRC 138, 160-161 (2001). See generally Entergy 

Nuclear Generation Co. And Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power 

Station), LBP-06-23, 64 NRC 257, 279-80 (2006) (noting that spent fuel accidents are 

generic, whatever their cause, and are not subject to litigation). 

Probabilistic risk assessments are not required for the renewal of an operating license. 

Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), 

LBP-01-6, 53 NRC 138, 159-160 (2001). 

The mere fact that the staff issues a request for additional information does not indicate 

that an application is incomplete. Progress Energy Carolinas, Inc (Shearon Harris 

Nuclear Power Plant, Units 2 & 3), CLI-08-15, 68 NRC 1, 3 (2008). 

1.3 Applications for Early Site Review

The Commission’s regulations in 10 C.F.R. Part 2 have been amended to provide for an 

adjudicatory early site review. See 10 C.F.R. §§ 2.101(a-1), 2.600 to 2.606. These early 

site review procedures, which differ in both form and effect from those of Subpart A of 

10 C.F.R. Part 52 and Appendix Q to 10 C.F.R. Part 52 (formerly 10 C.F.R. Part 50), are 

designed to result in the issuance of a partial initial decision with regard to site suitability 

matters chosen by the applicant. 

An applicant who seeks early site review is not required to own the proposed power plant 

site. The real test for deciding on early site review is whether or not the applicant can 

produce the information required by regulation and necessary for an effective hearing. 

Puerto Rico Elec. Power Auth. (North Coast Nuclear Plant, Unit 1), ALAB-662, 

14 NRC 1125, 1136 (1981). 

APPLICATIONS 2 JUNE 2011
The Commission’s early site review regulations do not require that the applicant have a 

“firm plan” to construct a plant at the site, but rather are meant to provide an opportunity to 

resolve siting issues in advance of any substantial commitment of resources. 

10 C.F.R. § 2.101(a-1), §§ 2.600 et seq. Philadelphia Elec. Co. (Fulton Generating 

Station, Units 1 & 2), ALAB-657, 14 NRC 967, 975-976 (1981). 

Three years after the Licensing Board sanctioned a limited work authorization (LWA) and 

before applicant had proceeded with any construction activity, applicant indicated it 

wanted to amend its construction permit application to focus only on site suitability issues. 

The Appeal Board adopted applicant’s suggestion to “vacate without prejudice” the 

decisions of the Licensing Board sanctioning the LWA. The Appeal Board remanded the 

case for proceedings deemed appropriate by the Licensing Board upon formal receipt of 

an early site approval application. Delmarva Power & Light Co. (Summit Power Station, 

Units 1 & 2), ALAB-516, 9 NRC 5, 6 (1979). 

1.4 Application for License Transfer

A formal application for a license transfer is not necessary where the current owner filed 

for bankruptcy and the transfer was arranged in the settlement agreement and was 

published in the Federal Register. Moab Mill Reclamation Trust, CLI-00-07, 51 NRC 216, 

219-220 (2000). 

The question in indirect transfer cases is whether the proposed shift in ultimate corporate 

control will affect a licensee’s existing financial and technical qualifications. See

65 Fed. Reg. 18,380, 18,381 (Apr. 7, 2000). The transfer applicants need provide only 

information bearing on the inquiry at hand, and not more extensive information that may 

be required in other contexts. Northeast Nuclear Energy Co. & Consol. Edison Co. of 

New York, Inc. (Millstone Nuclear Power Station, Units 1, 2, & 3), CLI-00-18, 52 NRC 129 

(2000). “A license transfer proceeding is not a forum for a full review of all aspects of 

current plant operation.” GPU Nuclear Inc. (Oyster Creek Nuclear Generating Station), 

CLI-00-06, 51 NRC 193, 202-03 (2000), cited in Northeast Nuclear Energy Co. & Consol. 

Edison Co. of New York, Inc. (Millstone Nuclear Power Station, Units 1, 2, & 3), 

CLI-00-18, 52 NRC 129, 133 (2000). 

1.5 Form of Application for Construction Permit/Operating License

1.5.1 Form of Application for Initial License/Permit 

Regulations permit the filing of an application in three parts: antitrust information; 

safety analysis report (SAR); and environmental report (ER). 10 C.F.R. § 2.101. The 

application is initially treated as a “tendered application” pending a preliminary Staff 

review for completeness. 10 C.F.R. § 2.101(a)(2). 

1.5.2 Form of Renewal Application for License/Permit 

(RESERVED) 

JUNE 2011 APPLICATIONS 3
1.6 Contents of Application

1.6.1 Incomplete Applications 

The determination as to whether an application is sufficiently complete for docketing is 

for the Staff, rather than an adjudicatory board, to make. New England Power Co.

(NEP, Units 1 & 2), LBP-78-9, 7 NRC 271, 280 (1978). 

A materials licensee may submit evidentiary material to supplement its license 

application where intervenors seek to invalidate the license because of alleged 

deficiencies and omissions in the license application. Curators of the Univ. of Missouri, 

LBP-90-45, 32 NRC 449, 454-55 (1990). See Curators of the Univ. of Missouri, 

LBP-91-31, 34 NRC 29, 109-110 (1991), clarified, LBP-91-34, 34 NRC 159 (1991). 

Although the Commission by no means encourages defective applications, an 

application which is minimally flawed is not automatically totally rejected. Further, the 

application may be modified or improved as NRC review goes forward. Curators of the 

Univ. of Missouri, CLI-95-8, 41 NRC 386, 395 (1995). “An application need not be 

rejected whenever an omission or error is found.” Consol. Edison Co. of New York and 

Entergy Nuclear Indian Point 2, LLC, and Entergy Nuclear Operations, Inc. (Indian 

Point Nuclear Generating Units 1 & 2), CLI-01-19, 54 NRC 109, 131 (2001). 

Pending staff review of a license extension application does not constitute a fatal 

defect in the application and does not afford an adequate basis for a contention. Such 

“open items” in license applications are not unusual and are generally not a cause for 

concern since they must eventually be dealt with by the Staff before the license can be 

granted. Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, & 3), LBP-98-33, 

48 NRC 381, 386-87 (1998). 

It is not true that all licensee commitments must be converted into express license 

conditions to be enforceable. Private Fuel Storage, L.L.C. (Independent Spent Fuel 

Storage Installation), CLI-01-09, 53 NRC 232, 235-236 (2001). 

For a materials license, having no final estimates, no final plan, and no final NRC Staff 

review indicates that the NRC Staff has not yet resolved all issues material to licensing. 

Also, an adequate financial assurance plan is material to licensing. Hydro Res., Inc.

(2929 Coors Road Suite 101, Albuquerque, NM 87120), CLI-00-08, 51 NRC 227, 241 

(2000). 

1.6.2 Material False Statements 

Under Section 186 of the Atomic Energy Act of 1954 (42 U.S.C. § 2236), a license or 

permit may be revoked for material false statements in the application. The 

Commission depends on licensees and applicants for accurate information to assist the 

Commission in carrying out its regulatory responsibilities and expects nothing less than 

full candor from licensees and applicants. Randall C. Orem, D.O., CLI-93-14, 

37 NRC 423, 427 (1993). 

Licensee remains responsible for the contents of the application even if licensee used 

a consultant to assist in the preparation of the application. Randall C. Orem, D.O., 

CLI-93-14, 37 NRC 423, 429 (1993). 

APPLICATIONS 4 JUNE 2011
In Virginia Electric & Power Co. (North Anna Power Station, Units 1 & 2), ALAB-324, 

3 NRC 347 (1976), rev’d in part on other grounds, 4 NRC 480 (1976), the Appeal 

Board held that: 

(1) A statement may be “false” within the meaning of Section 186 even if it is 

made without knowledge of its falsity - i.e., scienter is not a necessary 

element of a false statement under Section 186. 

(2) Information is material under Section 186 if it would have a natural tendency 

or capability to influence the decision of the person or body to whom it is to 

be submitted – i.e., the information is material if a reasonable Staff member 

would consider it in reaching a conclusion. The information need not be 

relied upon in fact. 

Intent to deceive is irrelevant in determining whether there has been a material false 

statement under Section 186.a. of the Atomic Energy Act; a deliberate effort to mislead 

the NRC, however, is relevant to the matter of sanctions, once a material false 

statement has been found. Consumers Power Co. (Midland Plant, Units 1 & 2) 

ALAB-691, 16 NRC 897, 915 (1982); The Regents of the Univ. of California (UCLA 

Research Reactor), LBP-84-22, 19 NRC 1383, 1387 (1984). 

Liability of an applicant or licensee for a material false statement in violation of 

Section 186.a. of the Atomic Energy Act does not depend on whether the applicant or 

licensee knew of the falsity. Consumers Power Co. (Midland Plant, Units 1 & 2), 

ALAB-691, 16 NRC 897, 910 (1982), citing Virginia Elec. & Power Co. (North Anna 

Power Station, Units 1 & 2), CLI-76-22, 4 NRC 480 (1976), aff’d sub nom. Virginia 

Elec. & Power Co. v. NRC, 571 F.2d 1289 (4th Cir. 1978). 

Under Section 186.a. of the Atomic Energy Act, the test for materiality is whether the 

information is capable of influencing the decisionmaker, not whether the decisionmaker 

would, in fact, have relied on it. Determinations of materiality require careful, common 

sense judgments of the context in which information appears and the stage of the 

licensing process involved. Consumers Power Co. (Midland Plant, Units 1 & 2), 

ALAB-691, 16 NRC 897, 910 (1982), citing Virginia Elec. & Power Co. (North Anna 

Power Station, Units 1 & 2), CLI-76-22, 4 NRC 480 (1976), aff’d sub nom. Virginia 

Elec. & Power Co. v. NRC, 571 F.2d 1289 (4th Cir. 1978); Metro. Edison Co. (Three 

Mile Island Nuclear Station, Unit 1), ALAB-774, 19 NRC 1350, 1358 (1984); The 

Regents of the Univ. of California (UCLA Research Reactor), LBP-84-22, 

19 NRC 1383, 1408-09 (1984); Randall C. Orem, D.O., CLI-93-14, 37 NRC 423, 

427-29 (1993). 

The mere existence of a question or discussion about the possible materiality of 

information does not necessarily make the information material. Consumers Power 

Co. (Midland Plant, Units 1 & 2) ALAB-691, 16 NRC 897, 914 (1982). The nature 

(e.g., physical attributes and capabilities) and status of an applicant’s proposed facility 

are material matters in a decision whether to grant a radioactive byproduct materials 

license. Randall C. Orem, D.O., CLI-93-14, 37 NRC 423, 428 (1993). 

The Commission need not rely on a false statement in order for it to be material, nor 

must the statement in fact induce the agency to grant an application. Randall C. Orem, 

D.O., CLI-93-14, 37 NRC 423, 428 (1993). 

JUNE 2011 APPLICATIONS 5
For each alleged misrepresentation, Section 186 of the Atomic Energy Act of 1954, as 

amended (42 U.S.C. § 2236), requires that the Board be apprised of the following as 

precisely as possible: (1) what was said, (2) in what context the statement existed, 

(3) the proof that the statement was inaccurate or incomplete, (4) when (if applicable) 

the statement was corrected, and (5) whether the Board should be concerned about 

the length of delay between the statement and when it was corrected. This will require 

proof of the timeline of actual events, demonstrating not only that they occurred but 

also when they occurred. In addition, the Board will require that the proof offered will 

make some allowance for inaccuracies in expression, understanding, and memory. 

Georgia Power Co. (Vogtle Electric Generating Plant, Units 1 & 2) LBP-94-37, 

40 NRC 288, 303-04 (1994). 

In Virginia Electric & Power Co. (North Anna Power Station, Units 1 & 2), CLI-76-22, 

4 NRC 480 (1976), the Commission affirmed in part the Appeal Board’s rulings and, in 

addition, held that silence (omissions) as to material facts regarding issues of major 

importance to licensing decisions is included in the Section 186 phrase “material false 

statement” since such an interpretation will effectuate the health and safety purposes 

of the Act. Thus, the sanctions of Section 186 apply not only to affirmative statements 

but also to omissions of material facts important to health and safety. See also

Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-691, 16 NRC 897, 911 

(1982); Metro. Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-774, 19 

NRC 1350, 1357 (1984). The Commission sought comments on its policy of what 

constitutes a material false statement. See 49 Fed. Reg. 8,583, 8,584 (1984). 

Information concerning a licensee’s or applicant’s intent to deceive may call into 

question its “character,” a matter the Commission is authorized to consider under 

Section 182.a. of the Atomic Energy Act, 42 U.S.C. § 2232a, or its ability and 

willingness to comply with Agency regulations, as Section 103.b., 42 U.S.C. § 2133b, 

requires. Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-691, 16 NRC 897, 

915 n.25 (1982). 

False statements, if proved, could signify lack of management character sufficient to 

preclude an award of an operating license, at least as long as responsible individuals 

retained any responsibilities for the project. Consumers Power Co. (Midland Plant, 

Units 1 & 2), LBP-84-20, 19 NRC 1285, 1297 (1984), citing Houston Lighting & Power 

Co. (South Texas Project, Units 1 & 2), LBP-84-13, 19 NRC 659, 674-75 (1984), and 

Consumers Power Co. (Midland Plant, Units 1 & 2), CLI-83-2, 17 NRC 69, 70 (1983). 

A deliberate false statement or withholding of material information would warrant the 

imposition of a severe sanction. Not only are material false statements and omissions 

punishable under Sections 234 and 186 of the Atomic Energy Act, but deliberate 

planning for such statements or concerns on the part of applicants or licensees would 

be evidence of bad character that could warrant adverse licensing action even where 

those plans are not carried to fruition. When parties and their attorneys engage in 

conduct which skirts close to the line of improper conduct, they are running a grave risk 

of serious sanction if they cross that line. Consumers Power Co. (Midland Plant, 

Units 1 & 2), CLI-83-2, 17 NRC 69, 70 (1983). 

The penalties that flow from making a false statement to a presiding officer and the 

NRC Staff, including the possibility of criminal violations under 18 U.S.C. § 1001 and 

agency enforcement actions, can be sufficient to ensure compliance without the 

APPLICATIONS 6 JUNE 2011
additional step of incorporating into a decision a list of commitments that an applicant 

has clearly acknowledged it accepts and will fulfill. Private Fuel Storage, L.L.C.

(Independent Spent Fuel Storage Installation), CLI-01-9, 53 NRC 232, 410 (2001), 

citing Florida Power & Light Co. (Turkey Point Nuclear Generating Plants, Units 3 & 4), 

ALAB-898, 28 NRC 36, 41 n.20 (1988) (holding that there was no need to incorporate 

applicant commitment in order given potential Staff enforcement). 

1.7 Docketing of License/Permit Application

If the application is found to be complete, a docket number will be assigned and the 

applicant and other appropriate officials notified. 10 C.F.R. § 2.101(a)(3). 

1.8 Notice of License/Permit Application

1.8.1 Publication of Notice in Federal Register

Once an application is docketed, a notice is placed in the Federal Register. The 

Federal Register Act (44 U.S.C. § 1508) provides that a publication of a notice in the 

Federal Register constitutes notice to all persons residing in the United States. 

Consol. Edison Co. (Indian Point Nuclear Generating Unit 2), LBP-82-1, 15 NRC 37, 40 

(1982). The notice to parties wishing to intervene in hearings before the Commission 

published in the Federal Register is notice to all the world. Pub. Serv. Co. of New 

Hampshire (Seabrook Station, Units 1 & 2), LBP-82-76, 16 NRC 1029, 1085 (1982). 

One may be charged with notice of matters published in the Federal Register. Houston 

Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-574, 

11 NRC 7 (1980). (Note – The Appeal Board expressly declined to reach the question 

of whether the Federal Register notice bound the petitioners to its terms. Id. at 10). 

In Tennessee Valley Authority (Yellow Creek Nuclear Plant, Units 1 & 2), ALAB-445, 

6 NRC 865 (1977), it was held that, while 10 C.F.R. § 2.104(a) requires that notice of 

hearing initiating a construction permit proceeding be published in the Federal Register

at least thirty (30) days prior to commencement of hearing, it does not require that such 

notice establish the time, place and date for all phases of the evidentiary hearings. 

However, in an unpublished opinion issued on December 12, 1977, the Federal District 

Court for the Northern District of Mississippi held that the interpretation of the notice 

requirements by the Appeal Board in Yellow Creek was erroneous and that at least 

thirty (30) days prior public notice of the time, place and date of hearing must be 

provided. 

There appears to be no requirement that the rights of interested local governmental 

bodies to be made parties to a proceeding be spelled out in the Notice of Opportunity 

for Hearing. Thus, a Notice of Opportunity for Hearing is not defective simply because 

it fails to state the right of an interested governmental body to participate in a 

proceeding. Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-37, 

8 NRC 575, 585 (1978). 

1.8.2 Amended Notice After Addition of New Owners 

(RESERVED) 

JUNE 2011 APPLICATIONS 7
1.8.3 Notice on License Renewal 

(RESERVED) 

1.8.4 SUNSI/SGI Access Procedures for Potential Parties 

In a Federal Register notice dated August 6, 2007 (72 Fed. Reg. 43,569), the 

Commission announced the availability for public comment of proposed procedures for 

granting potential parties access to certain sensitive unclassified nonsafeguards 

information (SUNSI) and Safeguards Information (SGI) in NRC adjudications. In a 

Federal Register notice dated February 29, 2008 (73 Fed. Reg. 10,978), the 

Commission announced the availability of the finalized procedures for potential parties 

and issued a final rule, which added a new paragraph to 10 C.F.R. § 2.307, delegating 

authority to the Secretary to issue an order implementing the procedures for potential 

parties to NRC proceedings to request access to certain SUNSI or SGI. In a Federal 

Register notice dated March 10, 2008 (73 Fed. Reg. 12,627), the Commission issued a 

final rule amending 10 C.F.R. § 2.311 to allow for interlocutory review by the 

Commission of orders issued by the Atomic Safety Licensing Board (ASLB) on 

requests by potential parties for access to SUNSI or SGI. The Commission’s 

procedures for potential parties to request access to SUNSI or SGI are implemented 

when the Staff publishes a Notice of Opportunity for Hearing that includes an order 

issued by the Secretary applying the procedures to the proceeding. 

The ASLB addressed the application of the access procedures for the first time in STP 

Nuclear Operating Co. (South Texas Project Units 3 & 4), LBP-09-05, 69 NRC 303 

(2009). In this instance, the Staff had issued a Notice of Opportunity for Hearing that 

included an order issued by the Secretary implementing the Commission’s procedures 

for potential parties to request access to SUNSI. The Staff denied the requests it 

received for access to SUNSI. As permitted by the Commission’s procedures, the 

requestors appealed the Staff’s determination to the ASLB. The ASLB reviewed the 

Staff’s determination de novo. Id. at 310. 

Two conditions must be met for potential parties to obtain access to SUNSI. First, the 

requestor must demonstrate a reasonable basis to believe that it is likely to establish 

standing to intervene. Second, the requestor must demonstrate a need for the SUNSI. 

Id. The Board agreed with the Staff’s conclusion that requestors who provided 

residential addresses within 50 miles of the proposed reactor site were likely to be able 

to establish personal standing. Id. at 310-11. The ASLB agreed with the Staff’s 

conclusion that three other requestors apparently seeking organizational or 

representational standing failed to demonstrate likelihood of standing because none 

explained the organization’s interests or how the interests of the members it seeks to 

protect are germane to the organization’s purposes. Id. at 311. The ASLB also agreed 

with the Staff’s determination that none of the requestors demonstrated a need for 

access to SUNSI. The requestors failed to show why publicly available information 

was insufficient to provide the basis and specificity needed to proffer a contention. The 

requestors’ assertion that they had a right as rate payers to access cost information fell 

far short of satisfying the need criterion. Id. at 312-13. The ASLB also noted that 

requests for access to topical SUNSI in order to fully understand and research potential 

issues, and requests based on speculation that the requestor’s case could be harmed 

without access, are inadequate to demonstrate a legitimate need for access to SUNSI. 

Id. 313-14. 

APPLICATIONS 8 JUNE 2011
The Commission has provided guidance on what is required to demonstrate a “need” 

for SUNSI at a stage when the SUNSI/SGI Access Order applies. The request should 

include an explanation of the importance of the information to the proceeding; and an 

explanation of why existing publicly available versions would not be sufficient. In the 

end, the demonstrated need will depend on the particular facts and circumstances 

presented. Once a petition to intervene has been granted and the petitioners acquire 

party status, the SUNSI/SGI Access Order for potential parties does not apply. Rather, 

at that point, access to documents is governed by the Commission’s discovery rule. 

For Subpart L proceedings, the mandatory disclosure provisions of 10 C.F.R. § 2.336 

apply. Under the discovery rule, the staff’s disclosure obligation is not tied solely to the 

admitted contention; the staff must also make available documents related to the 

application and the staff’s review to include applicable staff guidance documents. 

South Texas Project Nuclear Operating Company (South Texas Project, Units 3 & 4), 

CLI-10-24, 72 NRC __ (Sep. 29, 2010) (slip op.). 

1.9 Staff Review of License/Permit Application

An ASLB has ruled that the Staff has a right to continue to meet privately with parties even 

though a hearing has been noticed, and that, while an ASLB has supervisory authority 

over Staff actions that are part of the hearing process, it has no such authority with regard 

to the Staff’s review process. Northeast Nuclear Energy Co. (Montague Nuclear Power 

Station, Units 1 & 2), LBP-75-19, 1 NRC 436 (1975). 

The Staff has adopted a meeting policy which is reflected in NRC Management 

Directive 3.5, “Attendance at NRC Staff Sponsored Meetings” (April 2007). 

Note that 10 C.F.R. § 2.102 explicitly provides that the Staff may request any one party to 

a proceeding to confer informally with the Staff during the Staff’s review of an application. 

In the absence of a demonstration that meetings were deliberately being scheduled with a 

view to limiting the ability of intervenors’ representatives to attend, the imposition of hard 

and fast rules would needlessly impair the Staff’s ability to obtain information. The Staff 

should regard the intervenor’s opportunity to attend as one of the factors to be taken into 

account in making its decisions on the location of such meetings. Fairness demands that 

all parties be informed of the scheduling of such meetings at the same time. Consol.

Edison Co. of N.Y. (Indian Point Nuclear Generating Unit 2) and Power Auth. of the State 

of N.Y. (Indian Point Nuclear Generating Unit 3), CLI-82-41, 16 NRC 1721, 1722-23 

(1982). 

Adjudicatory boards lack the power to direct the Staff in the performance of its 

independent responsibilities and, under the Commission's regulatory scheme, boards 

cannot direct the Staff to suspend review of an application, preparation of an 

environmental impact statement or work, studies or analyses being conducted or planned 

as part of the Staff’s evaluation of an application. New England Power Co. (NEP, Units 1 

& 2), LBP-78-9, 7 NRC 271, 278-79 (1978). 

The Staff produces, among other documents, the safety evaluation report (SER) and the 

draft and final environmental impact statements (DEIS and FEIS). The studies and 

analyses which result in these reports are made independently by the Staff, and Licensing 

Boards have no rule or authority in their preparation. The Board does not have any 

JUNE 2011 APPLICATIONS 9
supervisory authority over that part of the application review process that has been 

entrusted to the Staff. Arizona Pub. Serv. Co. (Palo Verde Nuclear Generating Station, 

Units 2 & 3), LBP-83-36, 18 NRC 45, 48-49 (1983), citing New England Power Co. (NEP 

Units 1 & 2), LBP-78-9, 7 NRC 271 (1978). See Offshore Power Sys. (Floating Nuclear 

Power Plants), ALAB-489, 8 NRC 194, 206-07 (1978). 

It is up to the Staff to decide its priorities in the review of applications. Carolina Power & 

Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 & 4), ALAB-581, 

11 NRC 233, 238 (1980), rev’d in part, vacated in part, CLI-80-12, 11 NRC 514, 517 

(1980). However, where a Licensing Board finds that the Staff cannot demonstrate a 

reasonable cause for its delay in submitting environmental statements, the Board may 

issue a ruling noting the unjustified failure to meet a publication schedule and then 

proceed to hear other matters or suspend proceedings until the Staff files the necessary 

documents. The Board, sua sponte or on motion of one of the parties, may refer the 

ruling for review. Offshore Power Sys. (Floating Nuclear Power Plants), ALAB-489, 

8 NRC 194, 207 (1978). 

One aspect of the NRC’s role in regulating nuclear power plants is to provide criteria 

forming the engineering baseline against which licensee system designs, including 

component specifications, are judged for adequacy. It has not been the Staff’s practice to 

certify that any particular components are qualified for nuclear service, but, rather, it 

independently reviews designs and analyses, qualification documentation and quality 

assurance programs of licensees to determine adequacy. This review approach is 

consistent with the NRC’s responsibilities under the Atomic Energy Act of 1954, as 

amended, and the Energy Reorganization Act of 1974 (42 U.S.C. § 5801 et seq.). Petition 

for Emergency and Remedial Action, CLI-78-6, 7 NRC 400, 426 (1978). 

Pursuant to 10 C.F.R. § 50.47(a)(1), the NRC must find, prior to the issuance of a license 

for the full-power operation of a nuclear power reactor, that the state of onsite and offsite 

emergency preparedness provides reasonable assurance that adequate protective 

measures can and will be taken in the event of a radiological emergency. Consol. Edison 

Co. of New York (Indian Point Nuclear Generating Unit 2) and Power Auth. of the State of 

New York (Indian Point Nuclear Generating Unit 3), CLI-83-16, 17 NRC 1006, 1008 

(1983); Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-730, 17 NRC 

1057, 1063-64 (1983); Louisiana Power & Light Co. (Waterford Steam Electric Station, 

Unit 3), ALAB-732, 17 NRC 1076, 1094 n.22 (1983); Pub. Serv. Co. of New Hampshire

(Seabrook Station, Units 1 & 2), ALAB-737, 18 NRC 168, 172 (1983); Philadelphia Elec.

Co. (Limerick Generating Station, Units 1 & 2), ALAB-836, 23 NRC 479, 506 (1986); Long 

Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-86-13, 24 NRC 22, 29 

(1986); Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), CLI-86-

22, 24 NRC 685, 693-94 (1986), aff’d on other grounds sub nom. Ohio v. NRC, 814 F.2d 

258 (6th Cir. 1987); Philadelphia Elec. Co. (Limerick Generating Station, Units 1 & 2), 

ALAB-857, 25 NRC 7, 12 (1987). 

The NRC is not required to make a new finding on the adequacy of emergency 

preparedness plans for the issuance of a renewed nuclear power reactor operating 

license. 10 C.F.R. § 50.47(a)(1), 56 Fed. Reg. 64,943, 64,966-67 (Dec. 13, 1991). In 

accordance with Section 50.47(a)(2), the Commission is to base its finding on a review of 

the Federal Emergency Management Agency’s (FEMA’s) “findings and determinations as 

to whether state and local emergency plans are adequate and capable of being 

implemented,” and on a review of the NRC Staff assessment of applicant’s onsite 

APPLICATIONS 10 JUNE 2011
emergency plans. Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 

3), ALAB-732, 17 NRC 1076, 1094 n.22 (1983); Detroit Edison Co. (Enrico Fermi Atomic 

Power Plant, Unit 2), ALAB-730, 17 NRC 1057, 1063-64 (1983); Union Elec. Co.

(Callaway Plant, Unit 1), ALAB-754, 18 NRC 1333, 1334-1335 (1983), affirming, LBP-83-

71, 18 NRC 1105 (1983); Long Island Lighting Co. (Shoreham Nuclear Power Station, 

Unit 1), LBP-85-12, 21 NRC 644, 652 (1985); Cleveland Elec. Illuminating Co. (Perry 

Nuclear Power Plant, Units 1 & 2), CLI-86-22, 24 NRC 685, 693 (1986), aff’d sub nom. on 

other grounds, Ohio v. NRC, 814 F.2d 258 (6th Cir. 1987). However, 

10 C.F.R. § 50.47(a)(2) does not mandate that a Board’s finding on the adequacy of an 

emergency plan must be based on a review of FEMA findings and determinations. Since 

10 C.F.R. § 50.47(a)(2) also provides that any other information available to FEMA may 

be considered in assessing the adequacy of an emergency plan, a Board may rely on 

such evidence, properly admitted into the hearing record, when FEMA findings and 

determinations are not available. Long Island Lighting Co. (Shoreham Nuclear Power 

Station, Unit 1), ALAB-905, 28 NRC 515, 531-32 (1988). In any NRC licensing 

proceeding, a FEMA finding will constitute a rebuttable presumption on a question of the 

adequacy of an emergency plan. Southern California Edison Co. (San Onofre Nuclear 

Generating Station, Units 2 & 3), ALAB-717, 17 NRC 346, 378 (1983), citing

10 C.F.R. § 50.47(a)(2); Long Island Lighting Co. (Shoreham Nuclear Power Station, 

Unit 1), LBP-85-12, 21 NRC 644, 655 (1985); Carolina Power & Light Co. and North 

Carolina Eastern Mun. Power Agency (Shearon Harris Nuclear Power Plant), LBP-85-49, 

22 NRC 899, 910 (1985); Carolina Power and Light Co. and North Carolina Eastern Mun.

Power Agency (Shearon Harris Nuclear Power Plant), LBP-86-11, 23 NRC 294, 365 

(1986); Philadelphia Elec. Co. (Limerick Generating Station, Units 1 & 2), ALAB-836, 23 

NRC 479, 499 (1986); Philadelphia Elec. Co. (Limerick Generating Station, Units 1 & 2), 

ALAB-845, 24 NRC 220, 239 (1986); Pub. Serv. Co. of New Hampshire (Seabrook 

Station, Units 1 & 2), LBP-88-32, 28 NRC 667, 714 (1988), aff’d in part and rev’d in part 

on other grounds, ALAB-924, 30 NRC 331 (1989); Pub. Serv. Co. of New Hampshire

(Seabrook Station, Units 1 & 2), LBP-89-32, 30 NRC 375, 397, 624 (1989), rev’d in part 

on other grounds and remanded, ALAB-937, 32 NRC 135 (1990), aff’d in part and rev’d in 

part on other grounds, ALAB-941, 32 NRC 337 (1990), and aff’d on other grounds, 

ALAB-947, 33 NRC 299 (1991). See Long Island Lighting Co. (Shoreham Nuclear Power 

Station, Unit 1), ALAB-861, 25 NRC 129, 139 n.38 (1987); Pub. Serv. Co. of New 

Hampshire (Seabrook Station, Units 1 & 2), ALAB-924, 30 NRC 331, 360 (1989). The 

presumptive validity of FEMA findings does not depend upon the presentation of 

testimony by FEMA witnesses. Pub. Serv. Co. of New Hampshire (Seabrook Station, 

Units 1 & 2), LBP-89-32, 30 NRC 375, 437 (1989), rev’d in part on other grounds and 

remanded, ALAB-937, 32 NRC 135 (1990), aff’d in part and rev’d in part on other grounds, 

ALAB-941, 32 NRC 337 (1990), and aff’d on other grounds, ALAB-947, 33 NRC 299 

(1991). 

If the Staff determines that the cumulative radiological impacts of a license applicant’s 

proposed project will be inimical to the public health and safety, it must take steps to 

address those impacts by imposing license conditions that avoid such harm, or, if such 

mitigating measures would be unavailing, deny the license application. Hydro Res., Inc., 

LBP-06-1, 63 NRC 41, 60 (2006), aff’d, CLI-06-14, 63 NRC 510 (2006); upheld sub nom. 

Morris v. NRC, 598 F.3d 677 (10th Cir. 2010). 

A Staff review of an application is an aid to the Commission in determining if a hearing is 

needed in the public interest. Without the Staff’s expert judgment the Commission 

probably cannot reach an informed judgment on the need for a hearing in the public 

JUNE 2011 APPLICATIONS 11
interest. Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3, 

& 4), ALAB-581, 11 NRC 233, 235 (1980), modified, CLI-80-12, 11 NRC 514 (1980). 

In an operating license proceeding (with the exception of certain National Environmental 

Policy Act (NEPA) issues), the applicant’s license application is in issue, not the adequacy 

of the Staff’s review of the application. An intervenor is thus free to challenge directly an 

unresolved generic safety issue by filing a proper contention, but it may not proceed on 

the basis of allegations that the Staff has somehow failed in its performance. Pacific Gas 

& Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-728, 17 NRC 777, 

807 (1983), review denied, CLI-83-32, 18 NRC 1309 (1983). See Curators of the Univ. of 

Missouri, LBP-91-31, 34 NRC 29, 108-109 (1991), clarified, LBP-91-34, 34 NRC 159 

(1991), aff’d, CLI-95-1, 41 NRC 71, 121 (1995). 

1.10 Withdrawal of Application for License/Permit/Transfer

10 C.F.R. § 2.107(a) provides, in part, that “[t]he Commission...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.” See Dairyland 

Power Coop. (LaCrosse Boiling Water Reactor), LBP-88-15, 27 NRC 576, 581 (1988). 

A Licensing Board has no jurisdiction to impose conditions on the withdrawal of an 

application for an operating license where the applicant has filed a motion to terminate the 

operating license proceeding prior to the Board’s issuance of a Notice of Hearing on the 

application. Pub. Serv. Co. of Indiana, Inc. and Wabash Valley Power Ass’n, Inc. (Marble 

Hill Nuclear Generating Station, Units 1 & 2), LBP-86-37, 24 NRC 719, 724 (1986), citing

10 C.F.R. § 2.107(a). See Georgia Power Co. (Vogtle Electric Generating Plant, Units 1 

& 2), LBP-91-36, 34 NRC 193, 195 (1991). A Notice of Hearing is only issued after a 

Board considers any requests for hearing and intervention petitions which may have been 

submitted, and makes a determination that a hearing is warranted. Thus, the notice of 

receipt of an application for an operating license, notice of proposed action, and Notice of 

Opportunity for Hearing are not functionally the Notice of Hearing referred to in 

10 C.F.R. § 2.107(a). Pub. Serv. Co. of Indiana, Inc. and Wabash Valley Power Ass’n, 

Inc. (Marble Hill Nuclear Generating Station, Units 1 & 2), LBP-86-37, 24 NRC 719, 

723-24 (1986). 

Where a party has prevailed or is about to prevail, an unconditional withdrawal cannot be 

approved. Duke Power Co. (Perkins Nuclear Station, Units 1, 2, & 3), LBP-82-81, 

16 NRC 1128, 1135 (1982). 

While Section 2.107 is phrased primarily in terms of requests for withdrawal of an 

application by an applicant, the Commission itself has entertained such requests made by 

other parties to a construction permit proceeding, Consumers Power Co. (Quanicassee 

Plant, Units 1 & 2), CLI-74-29, 8 AEC 10 (1974), and has indicated that such a request is 

normally to be directed to, and ruled upon by, the ASLB presiding in the proceeding. 

Consumers Power Co. (Quanicassee Plant, Units 1 & 2), CLI-74-37, 8 AEC 627, n.1 

(1974). Thus, it appears that a Licensing Board has the authority, under 

10 C.F.R. § 2.107, to consider a motion to compel withdrawal of an application filed by a 

party other than the applicant. 

APPLICATIONS 12 JUNE 2011
The filing of an application to construct a nuclear power plant is wholly voluntary. The 

decision to withdraw an application is a business judgment. The law on withdrawal does 

not require a determination of whether the decision is sound. Pacific Gas & Elec. Co.

(Stanislaus Nuclear Project, Unit 1), LBP-83-2, 17 NRC 45, 51 (1983). 

Where an applicant abandons its construction of a nuclear facility and requests that the 

construction permit proceeding be terminated prior to resolution of issues raised on 

appeal from the initial decision authorizing construction, fundamental fairness dictates that 

termination of the proceedings be accompanied by a vacation of the initial decision on the 

ground of mootness. Rochester Gas & Elec. Corp. (Sterling Power Project, Nuclear 

Unit 1), ALAB-596, 11 NRC 867, 869 (1980); United States Dep’t of Energy Project Mgmt. 

Corp. Tennessee Valley Auth. (Clinch River Breeder Reactor Plant), ALAB-755, 

18 NRC 1337, 1338-1339 (1983), vacating LBP-83-8, 17 NRC 158 (1983). 

Withdrawal of a license transfer application also moots an adjudicatory proceeding on the 

proposed transfer. Niagara Mohawk Power Corp., et al. (Nine Mile Point Nuclear Station, 

Units 1 & 2), CLI-00-09, 51 NRC 293, 294 (2000). 

The terms prescribed at the time of withdrawal must bear a rational relationship to the 

conduct and legal harm at which they are aimed. The record must support any findings 

concerning the conduct and harm in question. Duke Power Co. (Perkins Nuclear Station, 

Units 1, 2, & 3), LBP-82-81, 16 NRC 1128, 1134 (1982), citing LeCompte v. Mr. Chip, Inc., 

528 F.2d 601, 604 (5th Cir. 1976); 5 Moore's Federal Practice § 41.05(1) at 41-58. 

Intervenors have standing to seek a dismissal with prejudice or to seek conditions on a 

dismissal without prejudice to the exact extent that they may be exposed to legal harm by 

a dismissal. Duke Power Co. (Perkins Nuclear Station, Units 1, 2, & 3), LBP-82-81, 

16 NRC 1128, 1137 (1982). 

A Licensing Board has substantial leeway in defining the circumstances in which an 

application may be withdrawn but the withdrawal terms set by the Board must bear a 

rational relationship to the conduct and legal harm at which they are aimed. 

Philadelphia Elec. Co. (Fulton Generating Station, Units 1 & 2), ALAB-657, 14 NRC 967, 

974 (1981); Pacific Gas & Elec. Co. (Stanislaus Nuclear Project, Unit 1), LBP-83-2, 

17 NRC 45, 49 (1983). 

Under 10 C.F.R. § 2.107(a), withdrawal of an application after the issuance of a Notice of 

Hearing shall be on such terms as the presiding officer may prescribe. However, to make 

a serious case for conditions, the intervenors reasonably can be held to an obligation to 

offer some indication of their objective. The proponent of litigation always bears the 

burden of explaining which direction the litigation will take. Sequoyah Fuels Corp. (Gore, 

Oklahoma site), CLI-95-2, 41 NRC 179, 191-93 (1995). 

The applicant for a license bears the cost of Staff work performed for its benefit, whether 

or not it withdraws its application prior to fruition. Puerto Rico Elec. Power Auth. (North 

Coast Nuclear Plant, Unit 1), ALAB-662, 14 NRC 1125, 1137 (1981). 

The antitrust information required to be filed under 10 C.F.R. § 50.33a is part of the permit 

application; therefore, any applicant who wishes to withdraw after filing antitrust 

information must comply with the Commission’s rule governing withdrawal of license 

applications (10 C.F.R. § 2.107(a)), even if a hearing on the application had not yet been 

scheduled. Filing a Notice of Prematurity and Advice of Withdrawal is an impermissible 

JUNE 2011 APPLICATIONS 13
unilateral withdrawal, and the filing will be treated as a formal request for withdrawal under 

10 C.F.R. § 2.107(a). Pacific Gas & Elec. Co. (Stanislaus Nuclear Project, Unit 1), 

CLI-82-5, 15 NRC 404, 405 (1982). 

With regard to design changes affecting an application, where there is a fairly substantial 

change in design not reflected in the application, the remedy is not summary judgment 

against the applicant, nor is withdrawal and subsequent refiling of the application 

necessarily required. Rather, an amendment of the application is appropriate. Pub. Serv.

Co. of New Hampshire (Seabrook Station, Units 1 & 2), LBP-74-36, 7 AEC 877 (1974). 

1.10.1 Withdrawal without Prejudice 

An applicant may withdraw its application without prejudice unless there is legal harm 

to the intervenors or the public. Duke Power Co. (Perkins Nuclear Station, Units 1, 

2, & 3), LBP-82-81, 16 NRC 1128, 1134 (1982), citing LeCompte v. Mr. Chip. Inc., 

528 F.2d 601, 604 (5th Cir. 1976). The Board may attach reasonable conditions on a 

withdrawal without prejudice to protect intervenors and the public from legal harm. 

Duke Power Co. (Perkins Nuclear Station, Units 1, 2, & 3), LBP-82-81, 16 NRC 1128, 

1134 (1982), citing LeCompte v. Mr. Chip. Inc., 528 F.2d 601, 604 (5th Cir. 1976). 

Where a decommissioning plan submitter withdraws its plan and the proceedings are 

dismissed without prejudiced to allow for possible future resubmission, and the 

applicant does later submit a new decommissioning plan, the Board may decide, out of 

fairness and based upon the totality of the circumstances, to allow an intervenor in the 

original proceeding to intervene in the new proceeding without filing a new hearing 

request. U.S. Army (Jefferson Proving Ground Site), LBP-05-25, 62 NRC 435, 440-41 

(2005). 

The possibility of another hearing, standing alone, does not justify either a dismissal 

with prejudice or conditions on a withdrawal without prejudice. That kind of harm, the 

possibility of future litigation with its expenses and uncertainties, is the consequence of 

any dismissal without prejudice. It does not provide a basis for departing from the 

usual rule that a dismissal should be without prejudice. Duke Power Co. (Perkins 

Nuclear Station, Units 1, 2, & 3), LBP-82-81, 16 NRC 1128, 1135 (1982), citing Jones 

v. SEC, 298 U.S. 1, 19 (1936); 5 Moore's Federal Practice § 41.05(1) at 41-72 to 41-73 

(2nd ed. 1981); Pacific Gas & Elec. Co. (Stanislaus Nuclear Project, Unit 1), LBP-83-2, 

17 NRC 45, 50 (1983). 

In the circumstances of a mandatory licensing proceeding, the fact that the motion for 

withdrawal comes after most of the hearings should not operate to bar a withdrawal 

without prejudice where the applicant has prevailed or where there has been a nonsuit 

as to particular issues. Duke Power Co. (Perkins Nuclear Station, Units 1, 2 & 3), 

LBP-82-81, 16 NRC 1128, 1136 (1982). 

Where a motion for leave to withdraw a license application without prejudice has been 

filed with both an Appeal Board and a Licensing Board, it is for the Licensing Board, if 

portions of the proceeding remain before it, to pass upon the motion in the first 

instance. As to whether withdrawal should be granted without prejudice, the Board is 

to apply the guidance provided in Philadelphia Electric Co. (Fulton Generating Station, 

Units 1 & 2), ALAB-657, 14 NRC 967 (1981) and Puerto Rico Electric Power Authority

APPLICATIONS 14 JUNE 2011
(North Coast Nuclear Plant, Unit 1), ALAB-662, 14 NRC 1125 (1981). Duke Power Co.

(Perkins Nuclear Station, Units 1, 2 & 3), ALAB-668, 15 NRC 450, 451 (1982). 

A Board may authorize the revocation of an LWA and the withdrawal of an application 

without prejudice after determining the adequacy of the applicant’s site redress plan 

and clarifying the responsibilities of the applicant and Staff in the event that an 

alternate use for the site is found before redress is completed. United States Dep’t of 

Energy, Project Mgmt. Corp., Tennessee Valley Auth. (Clinch River Breeder Reactor 

Plant), LBP-85-7, 21 NRC 507 (1985). 

1.10.2 Withdrawal with Prejudice 

Following a request to withdraw an application the Board may dismiss the case 

“without prejudice,” signifying that no disposition on the merits was made; or “with 

prejudice,” suggesting otherwise. (10 C.F.R. § 2.107(a), 10 § C.F.R. § 2.321 (formerly 

§ 2.721(d))). A dismissal with prejudice requires some showing of harm to either a 

party or the public interest in general and requires careful consideration of the 

circumstances, giving due regard to the legitimate interests of all parties. It is well 

settled that the prospect of a second lawsuit or another application does not provide 

the requisite quantum of legal harm to warrant dismissal with prejudice. Puerto Rico 

Elec. Power Auth. (North Coast Nuclear Plant, Unit 1), ALAB-662, 14 NRC 1125, 1132, 

1135 (1981); Philadelphia Elec. Co. (Fulton Generating Station, Units 1 & 2), 

ALAB-657, 14 NRC 967, 973, 978-979 (1981); Duke Power Co. (Perkins Nuclear 

Station, Units 1, 2, & 3), LBP-82-81, 16 NRC 1128, 1134 (1982), citing Fed.R. 

Civ.P. 41(a)(1), (2); LeCompte v. Mr. Chip Inc., 528 F.2d 601, 603 (5th Cir. 1976), 

citing 5 Moore's Federal Practice § 41.05 (2d ed. 1981). 

General allegations of harm to property values, unsupported by affidavits or unrebutted 

pleadings, do not provide a basis for dismissal of an application with prejudice. 

Philadelphia Elec. Co. (Fulton Generating Station, Units 1 & 2), LBP-84-43, 

20 NRC 1333, 1337 (1984), citing Puerto Rico Elec. Power Auth. (North Coast Nuclear 

Plant, Unit 1), ALAB-662, 14 NRC 1125, 1133-34 (1981), Philadelphia Elec. Co.

(Fulton Generating Station, Units 1 & 2), ALAB-657, 14 NRC 967, 979 (1981). 

Allegations of psychological harm from the pendency of the application, even if 

supported by the facts, do not warrant the dismissal of an application with prejudice. 

Philadelphia Elec. Co. (Fulton Generating Station, Units 1 & 2), LBP-84-43, 

20 NRC 1333, 1337-1338 (1984), citing Metro. Edison Co. v. People Against Nuclear 

Energy, 460 U.S. 766 (1983). 

The Commission has the authority to condition the withdrawal of a license application 

on such terms as it thinks just. See 10 C.F.R. § 2.107(a). However, dismissal with 

prejudice is a severe sanction which should be reserved for those unusual situations 

which involve substantial prejudice to the opposing party or to the public interest in 

general. Puerto Rico Elec. Power Auth. (North Coast Nuclear Plant, Unit 1), 

ALAB-662, 14 NRC 1125, 1132-1133 (1981); Cincinnati Gas & Elec. Co.

(William H. Zimmer Nuclear Power Station, Unit 1), LBP-84-33, 20 NRC 765, 767-768 

(1984); Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), LBP-99-27, 

50 NRC 45, 51 (1999). 

JUNE 2011 APPLICATIONS 15
1.11 Abandonment of Application for License/Permit

When the applicant has abandoned any intention to build a facility, it is within the 

Licensing Board’s power to dismiss the construction permit application. Puerto Rico Elec. 

Power Auth. (North Coast Nuclear Plant, Unit 1), ALAB-605, 12 NRC 153, 154 (1980).

APPLICATIONS 16 JUNE 2011
JUNE 2011 PREHEARING MATTERS-TABLE OF CONTENTS i 

TABLE OF CONTENTS 

PREHEARING MATTERS

2.0 PREHEARING MATTERS .......................................................... Pre 1 

2.1 Scheduling of Hearings ............................................................ Pre 1 

 (See Section 3.3) 

2.2 Necessity of Hearing ................................................................ Pre 1 

2.2.1 Materials License Hearings ......................................................... Pre 2 

2.2.2 Operating License/Amendment Hearings ................................... Pre 2 

2.2.3 Hearings on Exemptions ............................................................. Pre 3 

2.2.4 License Transfer Hearings .......................................................... Pre 3 

2.2.5 Hearings on Miscellaneous Matters ............................................ Pre 4 

2.3 Location of Hearing .................................................................. Pre 5 

2.3.1 Public Interest Requirements Affecting Hearing Location ........... Pre 5 

 (RESERVED) 

2.3.2 Convenience of Litigants Affecting Hearing Location ................. Pre 5 

 (See Section 3.3.5.2) 

2.4 Issues for Hearing ..................................................................... Pre 5 

 (See Sections 3.4 to 3.4.6) 

2.5 Notice of Hearing ...................................................................... Pre 5 

2.5.1 Contents of Notice of Hearing ..................................................... Pre 6 

2.5.2 Adequacy of Notice of Hearing ................................................... Pre 6 

2.5.3 Publication of Notice of Hearing in Federal Register .................. Pre 7 

2.5.4 Requirement to Renotice ............................................................ Pre 8 

2.6 Prehearing Conferences .......................................................... Pre 8 

2.6.1 Transcripts of Prehearing Conferences ...................................... Pre 9 

2.6.2 Prehearing Conference Order ..................................................... Pre 9 

2.6.2.1 Effect of Prehearing Conference Order ...................................... Pre 9 

2.6.2.2 Objections to Prehearing Conference Order ............................... Pre 9 

2.6.2.3 Appeal from Prehearing Conference Order ................................ Pre 9 

2.7 Television Coverage of Prehearing Conferences .................. Pre 9 

 (See Section 6.32) 

2.8 Conference Calls ....................................................................... Pre 9 

2.9 Prehearing Motions .................................................................. Pre 10 

2.9.1 Prehearing Motions Challenging ASLB Composition .................. Pre 10 

2.9.1.1 Contents of Motion Challenging ASLB Composition ................... Pre 10 

2.9.1.2 Evidence of Bias in Challenges to ASLB Composition ............... Pre 11 

2.9.1.3 Waiver of Challenges to ASLB Composition ............................... Pre 11 

2.9.2 Motions ....................................................................................... Pre 11 
JUNE 2011 PREHEARING MATTERS-TABLE OF CONTENTS ii 

2.10 Intervention ............................................................................... Pre 11 

2.10.1 General Policy on Intervention .................................................... Pre 11 

2.10.2 Intervenor's Need for Counsel .................................................... Pre 13 

2.10.3 Petitions to Intervene .................................................................. Pre 14 

2.10.3.1 Pleading Requirements ............................................................... Pre 16 

2.10.3.2 Defects in Pleadings ................................................................... Pre 17 

2.10.3.3 Time Limits/Late Petitions ........................................................... Pre 19 

2.10.3.3.1 Time for Filing Intervention Petitions ........................................... Pre 20 

2.10.3.3.1.A Timeliness of Amendments to Intervention Petitions .................. Pre 21 

2.10.3.3.2 Sufficiency of Notice of Time Limits on Intervention ................... Pre 22 

2.10.3.3.3 Consideration of Untimely Petitions to Intervene ........................ Pre 23 

2.10.3.3.3.A Factor #1 – Good Cause for Late Filing ...................................... Pre 28 

2.10.3.3.3.B Factor #2 – Nature of the Requestor’s/Petitioner’s Right 

 Under the Act to Be Made a Party to the Proceeding .............. Pre 33 

2.10.3.3.3.C Factor #3 – Nature and Extent of the Requestor’s/Petitioner’s 

 Property, Financial or Other Interest in the Proceeding ........... Pre 33 

2.10.3.3.3.D Factor #4 – Possible Effect of Any Order that May Be 

 Entered in the Proceeding on the Requestor’s/Petitioner’s 

 Interest ........................................................................................ Pre 33 

2.10.3.3.3.E Factor #5 – Other Means for Protecting Petitioner’s Interests .... Pre 33 

2.10.3.3.3.F Factor #6 – Extent Petitioner’s Interests Will Be Represented by 

 Existing Parties ........................................................................ Pre 35 

2.10.3.3.3.G Factor #7 – Extent Participation Will Broaden Issues or Delay 

 the Proceeding ......................................................................... Pre 36 

2.10.3.3.3.H Factor #8 – Ability of Petitioner to Assist in Developing Record Pre 38 

2.10.3.3.4 Appeals from Rulings on Late Intervention ................................. Pre 39 

2.10.3.3.5 Mootness of Petitions to Intervene .............................................. Pre 40 

2.10.3.4 Amendment of Petition Expanding Scope of Intervention ........... Pre 40 

2.10.3.5 Withdrawal of Petition to Intervene ............................................. Pre 41 

2.10.3.6 Intervention in Antitrust Proceedings .......................................... Pre 42 

2.10.4 Interest and Standing for Intervention ......................................... Pre 44 

2.10.4.1 Judicial Standing to Intervene ..................................................... Pre 47 

2.10.4.1.1 “Injury-in-Fact” and “Zone of Interest” Tests for 

 Standing to Intervene ............................................................... Pre 52 

2.10.4.1.1.1 “Injury-in-fact” Test ...................................................................... Pre 54 

2.10.4.1.1.1.A Future/Hypothetical/Academic Injury .......................................... Pre 57 

2.10.4.1.1.1.B Economic/Competitive Injury....................................................... Pre 58 

2.10.4.1.1.1.C Health and Safety/Environmental Injury ...................................... Pre 60 

2.10.4.1.1.1.D Injury to Legal and/or Constitutional Rights ................................ Pre 61 

2.10.4.1.1.1.E Injury Due to Proximity to a Facility ............................................. Pre 62 

2.10.4.1.1.1.F Injury Due to Failure to Prepare an EIS ...................................... Pre 72 

2.10.4.1.1.1.G Injury Due to Property Interest .................................................... Pre 73 

2.10.4.1.1.2 “Zone of Interests” Test ............................................................... Pre 73 

2.10.4.1.2 Standing of Organizations to Intervene ....................................... Pre 76 

2.10.4.1.2.1 Organizational Standing .............................................................. Pre 79 

2.10.4.1.2.2 Representational Standing .......................................................... Pre 81 

2.10.4.1.2.2.A The Person an Organization Seeks to Represent Must Be 

 a “Member” and Have Given “Authorization” ........................... Pre 83 
JUNE 2011 PREHEARING MATTERS-TABLE OF CONTENTS iii 

2.10.4.1.2.2.B Timing of Membership ................................................................ Pre 85 

2.10.4.1.2.3 Governments/Indian Tribes and Organizational Standing .......... Pre 85 

2.10.4.1.3 Standing to Intervene in Export Licensing Cases ....................... Pre 88 

2.10.4.1.4 Standing to Intervene in License Transfer Proceedings ............. Pre 89 

2.10.4.2 Discretionary Intervention ........................................................... Pre 91 

2.10.5 Contentions of Intervenors .......................................................... Pre 94 

2.10.5.1 Scope of Contentions .................................................................. Pre 96 

2.10.5.2 Pleading Requirements for Contentions ..................................... Pre 98 

2.10.5.2.1 Bases for Contentions ................................................................. Pre 103 

2.10.5.2.2 Specificity of Contentions ............................................................ Pre 110 

2.10.5.3 Response to Contentions ............................................................ Pre 115 

2.10.5.3.1 Reply Briefs ................................................................................. Pre 115 

2.10.5.4 Material Used in Support of Contentions .................................... Pre 115 

2.10.5.5 Timeliness of Submission of Contentions ................................... Pre 118 

2.10.5.5.1 Factor #1 – Good Cause for Late Filing ...................................... Pre 123 

2.10.5.5.2 Factor #2 – Nature of the Requestor’s/Petitioner’s Right 

 Under the Act to Be Made a Party to the Proceeding .............. Pre 128 

2.10.5.5.3 Factor #3 – Nature and Extent of the Requestor’s/Petitioner’s 

 Property, Financial or Other Interest in the Proceeding ........... Pre 128 

2.10.5.5.4 Factor #4 – Possible Effect of Any Order that May Be 

 Entered in the Proceeding on the Requestor’s/Petitioner’s 

 Interest ..................................................................................... Pre 128 

2.10.5.5.5 Factor #5 – Other Means Available to Protect the Petitioner’s 

 Interest ..................................................................................... Pre 129 

2.10.5.5.6 Factor #6 – Extent Petitioner’s Interests Are Represented by 

 Existing Parties ........................................................................ Pre 130 

2.10.5.5.7 Factor #7 – Extent Participation Will Broaden Issues or Delay 

 the Proceeding ......................................................................... Pre 131 

2.10.5.5.8 Factor #8 – Ability of Petitioner to Assist in Developing Record . Pre 132 

2.10.5.6 Contentions Challenging Regulations ......................................... Pre 133 

2.10.5.7 Contentions Involving Generic Issues/Subject of Rulemaking .... Pre 135 

2.10.5.8 Contentions Challenging Absent or Incomplete Documents ....... Pre 138 

2.10.5.9 Contentions re Adequacy of Security Plan ................................. Pre 140 

2.10.5.10 Defective Contentions ................................................................. Pre 142 

2.10.5.11 Discovery to Frame Contentions ................................................. Pre 144 

2.10.5.12 Stipulations on Contentions (RESERVED) ................................. Pre 145 

2.10.6 Conditions on Grants of Intervention .......................................... Pre 145 

2.10.7 Reinstatement of Intervenor After Withdrawal ............................ Pre 145 

2.10.8 Rights of Intervenors at Hearing ................................................. Pre 145 

2.10.8.1 Burden of Proof ........................................................................... Pre 146 

2.10.8.2 Presentation of Evidence ............................................................ Pre 147 

2.10.8.2.1 Affirmative Presentation by Intervenor/Participants .................... Pre 147 

2.10.8.2.2 Consolidation of Intervenor Presentations .................................. Pre 147 

2.10.8.3 Cross-Examination by Intervenors .............................................. Pre 148 

2.10.8.4 Intervenor’s Right to File Proposed Findings .............................. Pre 149 

2.10.8.5 Attendance at/Participation in Prehearing 

 Conferences/Hearings ............................................................. Pre 149 

2.10.8.6 Pleadings and Documents of Intervenors ................................... Pre 150 

2.10.9 Cost of Intervention ..................................................................... Pre 151 
JUNE 2011 PREHEARING MATTERS-TABLE OF CONTENTS iv 

2.10.9.1 Financial Assistance to Intervenors ............................................ Pre 151 

2.10.9.2 Intervenors’ Witnesses ................................................................ Pre 152 

2.10.10 Appeals by Intervenors ............................................................... Pre 152 

2.10.11 Intervention in Remanded Proceedings ...................................... Pre 152 

2.11 Non-Party Participation – Limited Appearance and

 Interested States ....................................................................... Pre 153 

2.11.1 Limited Appearances in NRC Adjudicatory Proceedings ............ Pre 153 

2.11.1.1 Requirements for Limited Appearance ....................................... Pre 153 

2.11.1.2 Scope/Limitations of Limited Appearances ................................. Pre 153 

2.11.2 Participation by Non-Party Interested States and 

 Local Governments .................................................................. Pre 154 

2.12 Discovery ................................................................................... Pre 157 

2.12.1 Time for Discovery ...................................................................... Pre 157 

2.12.2 Discovery Rules .......................................................................... Pre 159 

2.12.2.1 Construction of Discovery Rules ................................................. Pre 161 

2.12.2.2 Scope of Discovery ..................................................................... Pre 162 

2.12.2.3 Requests for Discovery During Hearing ...................................... Pre 165 

2.12.2.4 Privileged Matter ......................................................................... Pre 165 

2.12.2.4.1 Attorney-Client Privilege ............................................................. Pre 167 

2.12.2.4.2 Identity of Confidential Informants .............................................. Pre 170 

2.12.2.4.3 FOIA Exemptions – Executive/Deliberative Process Privilege .... Pre 172 

2.12.2.4.4 FOIA Exemptions – Personal Privacy Privilege .......................... Pre 177 

2.12.2.4.5 FOIA Exemptions – Proprietary Information ............................... Pre 177 

2.12.2.4.6 Waiver of a Privilege ................................................................... Pre 177 

2.12.2.5 Access to Classified, Safeguards, or Other Security-Related 

 Information ............................................................................... Pre 178 

2.12.2.6 Protective Orders ........................................................................ Pre 178 

2.12.2.7 Work Product .............................................................................. Pre 180 

2.12.2.8 Updating Discovery Responses .................................................. Pre 181 

2.12.2.9 Interrogatories ............................................................................. Pre 181 

2.12.3 Discovery Against the Staff ......................................................... Pre 182 

2.12.4 Responses to Discovery Requests ............................................. Pre 184 

2.12.5 Compelling Discovery/Subpoenas .............................................. Pre 186 

2.12.5.1 Compelling Discovery from ACRS and ACRS Consultants ........ Pre 189 

2.12.5.2 Sanctions for Failure to Comply with Discovery Orders .............. Pre 189 

2.12.6 Appeals of Discovery Rulings ..................................................... Pre 191 

2.12.7 Discovery in High-Level Waste Licensing Proceedings .............. Pre 192 

2.12.7.1 Pre-License Application Licensing Board ................................... Pre 192 

2.12.7.2 Licensing Support Network (Formerly Licensing Support 

 System) .................................................................................... Pre 193 
2.0 PREHEARING MATTERS 

2.1 Scheduling of Hearings

(See Section 3.3) 

2.2 Necessity of Hearing

A person requesting a hearing must make some threshold showing that a hearing would 

be necessary to resolve opposing and supported factual assertions. Kerr-McGee Corp.

(West Chicago Rare Earths Facility), CLI-82-2, 15 NRC 232, 245, 256 (1982), aff’d sub 

nom, City of West Chicago v. NRC, 701 F.2d 632 (7th Cir. 1983). 

The objectives of the NRC adjudicatory procedures and policies are threefold: to provide 

a fair hearing process, to avoid unnecessary delays in the NRC’s review and hearing 

process, and to produce an informed adjudicatory record that supports agency 

decisionmaking on public health and safety, the common defense and security, and the 

environment. Hydro Res., Inc., CLI-01-04, 53 NRC 31, 38 (2001). 

There is no general right to a hearing for a hearing’s sake. Northeast Nuclear Energy Co.

(Millstone Nuclear Power Station, Units 2 & 3), LBP-01-10, 53 NRC 273, 282 (2001), aff’d, 

54 NRC 349 (2001), reconsid. denied, 55 NRC 1 (2002). 

The Atomic Energy Act of 1954, as amended (AEA), Section 189.a.(1), which provides the 

opportunity to request a hearing to any person whose interest may be affected by a 

proceeding, confers hearing rights on licensees as well as on interested members of the 

public. Ohio Edison Co. (Perry Nuclear Power Plant, Unit 1) and Cleveland Elec.

Illuminating Co. and Toledo Edison Co. (Perry Nuclear Power Plant, Unit 1; Davis-Besse 

Nuclear Power Station, Unit 1), CLI-92-11, 36 NRC 47, 53-54 (1992). 

Once a Notice of Opportunity for Hearing has been published and a request for a hearing 

has been submitted, the decision as to whether a hearing is to be held no longer rests 

with the Staff but instead is transferred to the Commission or an adjudicatory tribunal 

designated to preside in the proceeding. Dairyland Power Coop. (La Crosse Boiling 

Water Reactor), LBP-80-26, 12 NRC 367, 371 (1980); ALAB-618, 12 NRC 551 (1980). 

The Commission’s summary disposition rule (10 C.F.R. § 2.710 (formerly § 2.749)) gives 

a party a right to an evidentiary hearing only where there is a genuine issue of material 

fact and the party is entitled to a decision as a matter of law. An important effect of this 

principle is that applicants for licenses may be subject to substantial expense and delay 

when genuine issues have been raised, but are entitled to an expeditious determination, 

without need for an evidentiary hearing on all issues which are not genuine. Consumers 

Power Co. (Big Rock Point Plant), LBP-82-8, 15 NRC 299, 301 (1982). 

An adjudication need not necessarily involve a hearing. “Adjudication” includes any 

agency process for the formulation of an order. An order may be developed in a licensing 

process, i.e., an agency process respecting the modification of a license. Licensees can 

request a hearing on such an order; the fact that they may not makes the proceeding no 

less an adjudication. All Power Reactor Licensees and Research Reactor Licensees who 

Transport Spent Nuclear Fuel, CLI-05-06, 61 NRC 37, 41 (2005). 

JUNE 2011 PREHEARING MATTERS 1
2.2.1 Materials License Hearings 

There is no statutory entitlement to a formal on-the-record hearing under the AEA or 

NRC regulations with regard to materials licensing actions. Kerr-McGee Corp. (West 

Chicago Rare Earths Facility), CLI-82-21, 16 NRC 401, 402 (1982); aff’d sub nom. City 

of West Chicago v. NRC, 701 F.2d 632 (7th Cir. 1983). Rockwell International Corp.

(Energy Systems Group Special Nuclear Materials License No. SNM-21), CLI-83-15, 

17 NRC 1001, 1002 (1983). However, Section 193 of the AEA requires an on-therecord hearing for the initial licensing of a uranium enrichment facility. 

Constitutional due process does not require a formal adjudicatory hearing for a 

materials licensing case where the intervenors have not specified any health, safety, 

and environmental concerns which constitute liberty or property interests subject to due 

process protection, where the issues can be evaluated fully and fairly without using 

formal trial-type procedures, and where formal hearing procedures would add 

appreciably to the government's administrative burden. Sequoyah Fuels Corp.

(Sequoyah UF6 to UF4 Facility), CLI-86-17, 24 NRC 489, 495-498 (1986). 

The Staff may issue an amendment to a materials license without providing prior notice 

of an opportunity for a hearing. Curators of the Univ. of Missouri, LBP-90-18, 

31 NRC 559, 574 (1990). 

Current NRC environmental regulations do not specify what type of hearing may be 

required for any Staff environmental finding regarding a materials license action. 

Sequoyah Fuels Corp. (Sequoyah UF6 to UF4 Facility), CLI-86-17, 24 NRC 489, 498 

(1986). 

2.2.2 Operating License/Amendment Hearings 

In the Seabrook operating license proceeding, the intervenors sought to litigate 

contentions involving the low-power testing even though the record had already closed. 

On appeal, the intervenors argued that the Licensing Board violated their right to a 

hearing on all issues material to the granting of a full-power operating license, 

AEA § 189.a., by requiring that the intervenors’ contentions meet the standards for 

reopening the record, 10 C.F.R. § 2.326(a) (formerly § 2.734(a)). The Appeal Board 

affirmed the Licensing Board decision, noting that: (1) although the intervenors labeled 

their contentions “low-power testing contentions,” they actually raised issues which 

involved generic operational questions about plant readiness for full-power operation 

which could have been raised when the hearing began, Public Service Co. of New 

Hampshire (Seabrook Station, Units 1 & 2), 32 NRC 225, 233-34, 240-41 (1990); and 

(2) while low-power testing is material to the operation of a licensed facility, it is not 

material to the initial issuance or grant of a full-power license, Seabrook, supra, 

32 NRC at 234-37. 

A licensee request to suspend the antitrust conditions in its operating license is a 

license amendment within the meaning of § 189.a(1) of the AEA which provides a 

hearing to any person whose interest may be affected by any proceeding for the 

granting, suspending, revoking, or amending of any license. Ohio Edison Co. (Perry 

Nuclear Power Plant, Unit 1) and Cleveland Elec. Illuminating Co. and Toledo Edison 

Co. (Perry Nuclear Power Plant, Unit 1; Davis-Besse Nuclear Power Station, Unit 1), 

LBP-91-38, 34 NRC 229, 238-39 (1991), aff’d in part and appeal denied, CLI-92-11, 36 

PREHEARING MATTERS 2 JUNE 2011
NRC 47, 53-54 (1992). The NRC Staff’s initial technical and legal assessment of a 

license amendment application and its determination concerning the propriety of the 

request cannot substitute for the adjudicatory hearing to which the licensee would 

otherwise be entitled under AEA § 189.a. Perry and Davis-Besse, supra, 34 NRC at 

239, aff’d in part and appeal denied, CLI-92-11, 36 NRC 47, 60 (1992). 

2.2.3 Hearings on Exemptions 

Where the NRC Staff proposes to grant an operating license applicant’s request for an 

exemption from requirements of the Commission’s regulations, an intervenor who 

seeks a hearing on the exemption request must raise a material issue of fact regarding 

the application of 10 C.F.R. § 50.12. However, the Commission did not address the 

question of whether Section 189.a. of the AEA gives a right to an adjudicatory hearing 

on an exemption request to an intervenor who has raised a material issue of fact 

concerning the proposed exemption. Carolina Power & Light Co. and North Carolina 

Eastern Mun. Power Agency (Shearon Harris Nuclear Power Plant), CLI-86-24, 24 

NRC 769, 774-75 (1986), aff’d, Eddleman v. NRC, 825 F.2d 46 (4th Cir. 1987). See

Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Units 1 & 2), CLI-89-21, 30 

NRC 325, 328 (1989) (the Commission declined to address the question of whether 

Section 189.a. of the AEA establishes the right to request a hearing on an exemption 

from a Commission regulation). 

In distinguishing between an exemption and an amendment, the appellate court will 

defer to the expert knowledge of the NRC. Brodsky v. NRC, 578 F.3d 175, 183 

(2d. Cir. 2009). In Brodsky v. NRC, the Second Circuit sua sponte concluded that it 

lacked jurisdiction under the Hobbs Act to review the NRC’s grant of exemptions. Id. at 

184. Brodsky, however, is unique. Five other circuit courts of appeal considering NRC 

exemption decisions have at least tacitly agreed that exemptions were (in effect) 

ancillary to NRC licensing and regulation of nuclear materials and facilities and were to 

be reviewed exclusively in the courts of appeals by exercising jurisdiction under the 

Hobbs Act. See Kelley v. Selin, 42 F.3d 1501 (6th Cir. 1995); Int’l Broth. of Elec. 

Workers, Local 1245 v. NRC, 966 F.2d 521 (9th Cir. 1992); Shoreham-Wading River 

Cent. School Dist. v. NRC, 931 F.2d 102 (D.C. Cir. 1991); Massachusetts v. NRC, 

878 F.2d 1516 (1st Cir. 1989); Eddleman v. NRC, 825 F.2d 46 (4th Cir.1987); Duke 

Power Co. v. NRC, 770 F.2d 386 (4th Cir. 1985). 

A request for an exemption under 10 C.F.R. § 73.5 concerning the security plan does 

not constitute a license amendment subject to hearing under Section 189 of the AEA. 

Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 & 2), CLI-00-5, 

51 NRC 90, 96 (2000). 

2.2.4 License Transfer Hearings 

AEA § 189.a.(1) does not require a pre-effectiveness hearing on an application to 

transfer control of a license. However, as a matter of discretion, the Commission may 

direct the holding of a pre-effectiveness hearing if a proposed transfer of control raises 

potentially significant public health and safety issues. Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), CLI-92-4, 35 NRC 69, 76-79 (1992). 

Section 189.a.(1)(A) of the AEA requires the Commission to offer an opportunity for a 

hearing for certain kinds of proceedings, including those involving the “transfer of 

JUNE 2011 PREHEARING MATTERS 3
control” over licensed facilities. In order to trigger hearing rights under the “transfer of 

control” provision of § 189.a.(1)(A), there must actually be a license transfer. Where a 

corporate merger did not propose to change either operating or possession authority, 

there was no direct license transfer. Similarly, where the same parent company would 

indirectly control the licensee – both before and after the proposed merger – there was 

no indirect license transfer. Therefore, the proceeding did not involve a “transfer of 

control,” and no hearing rights attached. Amergen Energy Co., LLC (Three Mile Island 

Nuclear Station, Unit 1), CLI-05-25, 62 NRC 572, 573-74 (2005). 

2.2.5 Hearings on Miscellaneous Matters 

Part 52 Combined Operating License

The Commission may grant a request for a post-construction hearing on a Part 52 

combined construction permit and operating license from any person who makes a 

prima facie showing that (1) one or more of the acceptance criteria in the combined 

license (COL) have not been, or will not be met, and (2) the specific operational 

consequences of nonconformance that would be contrary to providing reasonable 

assurance of adequate protection of the public health and safety. 

10 C.F.R. § 52.103(a),(b), 57 Fed. Reg. 60,975, 60,978 (Dec. 23, 1992). See Nuclear 

Info. Res. Serv. v. NRC, 969 F.2d 1169 (D.C. Cir 1992). 

Construction Completion Date Extension/Reinstatement of Construction Permit 

The scope of hearings on extensions to the construction permit’s construction 

completion date is governed under the AEA’s Section 185.a. good cause shown 

standard. The Commission’s guidance associated with the “good cause” standard is 

that it is not meant as an opportunity to litigate health, safety, or environmental issues 

that could have been raised at the time of the initial CP issuance or are available to be 

raised later in the operating license application proceeding. Washington Public Power 

Supply System (WPPSS Nuclear Project Nos 1 & 2) CLI-82-29, 16 NRC 1221 (1982). 

Challenges to licensee’s assertions of good cause for extension to the CP’s 

construction completion date must articulate that the CP licensee was dilatorily 

responsible for the delay, acted intentionally and without a valid business purpose. 

Public Service Company of New Hampshire (Seabrook Station, Unit 2), CLI-84-6, 19 

NRC 975, 978 (1984). The limited scope of hearing on whether good cause has been 

shown has been applied in the context of reinstatement of voluntarily surrendered 

CPs. See Tennessee Valley Authority (Bellefonte Nuclear Plants Units 1 & 2) LBP-10-

07, 71 NRC __, __ (Apr. 2, 2010) (slip op.). 

Enforcement Order

Where complainants were denied a hearing after they had alleged a failure of the 

Director to take stronger action, the Appeal Board, in upholding the denial, noted that 

the Director’s decision in no way restricted the authority of the Atomic Safety and 

Licensing Board (ASLB) to further restrict or even deny the license for operation of the 

facility. Further, it was not grounds for a hearing that, if a hearing was not immediately 

held on the Director’s decision, the money spent on the plant would later influence the 

Licensing Board’s decision. Houston Lighting & Power Co. (South Texas Project, Units 

1 & 2), CLI-80-32, 12 NRC 281, 288-290 (1980); Metropolitan Edison Co. (Three Mile 

PREHEARING MATTERS 4 JUNE 2011
Island Nuclear Station, Unit 1), ALAB-772, 19 NRC 1193, 1264 (1984), rev’d in part on 

other grounds, CLI-85-2, 21 NRC 282 (1985). 

Agreement State Transfer

Before the NRC enters into or amends an agreement to transfer its regulatory control 

over AEA § 11.e.(2) byproduct material to a state, the NRC must provide notice and an 

opportunity for a public hearing when the state’s proposed regulatory standards for the 

byproduct material differ from the Commission’s standards for such material. 

AEA § 274.o. A formal adjudicatory hearing is not required. Notice and comment 

procedures are sufficient for determining whether the proposed state standards, 

evaluated generally and not as applied to specific sites, are equivalent to, or more 

stringent than, the corresponding Commission standards. State of Illinois (Amendment 

No. One to the Section 274 Agreement between the NRC and Illinois), CLI-90-09, 32 

NRC 210, 215-16 (1990), reconsid. denied, CLI-90-11, 32 NRC 333 (1990); Shieldalloy 

Metallurgical Corp. v. NRC, 624 F.3d 489 (D.C. Cir. 2010). 

Confirmatory Action Letter

A Confirmatory Action Letter whereby the applicants voluntarily ceased low-power 

testing and agreed to obtain NRC Staff approval prior to resuming operations is not a 

suspension within the meaning of Section 189.a. of the AEA, and does not give the 

intervenors the right to a hearing. Pub. Serv. Co. of New Hampshire (Seabrook 

Station, Units 1 & 2), LBP-89-28, 30 NRC 271, 275-76 (1989), aff’d, ALAB-940, 32 

NRC 225 (1990). 

2.3 Location of Hearing

2.3.1 Public Interest Requirements Affecting Hearing Location 

(RESERVED) 

2.3.2 Convenience of Litigants Affecting Hearing Location 

(See Section 3.3.5.2) 

2.4 Issues for Hearing

(See Sections 3.4 to 3.4.6) 

2.5 Notice of Hearing

10 C.F.R. § 2.105(a) requires that the Commission issue a notice of proposed action – 

also called a Notice of Opportunity for Hearing – only with respect to an application for a 

facility license, an application for a license to receive radioactive waste for commercial 

disposal, an application to amend such licenses where significant hazards considerations 

are involved, or an application for “any other license or amendment as to which the 

Commission determines that an opportunity for public hearing should be afforded.” A 

materials license amendment does not fall into any of these categories. Kerr-McGee 

Corp. (West Chicago Rare Earths Facility), CLI-82-2, 15 NRC 232, 245 (1982), aff’d sub 

nom. City of West Chicago v. NRC, 701 F.2d 632 (7th Cir. 1983). Nor do actions 

JUNE 2011 PREHEARING MATTERS 5
involving the shipping and transport of radioactive components taken by an applicant in 

anticipation of decommissioning, provided those activities do not violate 

10 C.F.R. § 50.59(a)(1). Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), 

CLI-94-3, 39 NRC 95 (1994). A person cannot intervene in a proceeding before the 

issuance of a “notice of hearing” or a “notice of proposed action,” which is a prerequisite to 

the initiation of a proceeding. Petitions filed prior to this issuance are “clearly premature” 

and may be rejected by the Secretary. Dominion Nuclear Connecticut, Inc. (Millstone 

Nuclear Power Station, Units 2 & 3), CLI-04-12, 59 NRC 237, 239-40 (2004). 

2.5.1 Contents of Notice of Hearing 

Operating license proceedings start with the notice of proposed action 

(10 C.F.R. § 2.105) and are separate from prior proceedings. Thus, a Licensing Board 

in a construction permit hearing may not order that certain issues be tried at the 

Operating License proceeding. Carolina Power & Light Co. (Shearon Harris Nuclear 

Power Plant, Units 1, 2, 3 & 4), CLI-80-12, 11 NRC 514, 517 (1980). 

A Licensing Board does not have the power to explore matters beyond those which are 

embraced by the Notice of Hearing for the particular proceeding. This is a holding of 

general applicability. Portland Gen. Elec. Co. (Trojan Nuclear Plant), ALAB-534, 

9 NRC 287, 289-290 n.6 (1979); Pub. Serv. Co. of Indiana (Marble Hill Nuclear 

Generating Station, Units 1 & 2), ALAB-316, 3 NRC 167, 170-171 (1976). See also

Commonwealth Edison Co. (Zion Station, Units 1 & 2), ALAB-616, 12 NRC 419, 426 

(1980); Northern Indiana Pub. Serv. Co. (Bailly Generating Station, Nuclear-1), 

ALAB-619, 12 NRC 558, 565 (1980); Tulsa Gamma Ray, Inc., LBP-90-42, 

32 NRC 387, 388 (1990). 

A Notice of Hearing must correspond to the agency’s statutory authority over a given 

matter; it cannot confer or broaden that jurisdiction to matters expressly proscribed by 

law. Florida Power & Light Co. (St. Lucie Plant, Unit No. 2), ALAB-661, 14 NRC 1117, 

1123 (1981). 

2.5.2 Adequacy of Notice of Hearing 

One receiving filings in a proceeding is charged with reading and knowing matters 

therein which might affect his rights. Houston Lighting & Power Co. (Allens Creek 

Nuclear Generating Station, Unit 1), ALAB-574, 11 NRC 7, 13 (1980). 

Where an original Notice of Hearing is too narrowly drawn, a requirement in a 

subsequent notice that those who now seek to intervene state that they did not 

intervene before because of limitations in the original notice was not improper. 

Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), 

ALAB-574, 11 NRC 7, 10 (1980). 

The Notice of Hearing in an enforcement proceeding must provide adequate notice of 

(1) the alleged violations and (2) the specific regulatory provisions upon which the Staff 

seeks to impose a civil penalty. Tulsa Gamma Ray, Inc., LBP-90-43, 32 NRC 390, 

391-92 (1990), citing 5 U.S.C. § 554(b)(3). 

Even in the absence of any constructive notice of when an intervention petition must be 

filed, the possibility remains that an intervenor had actual notice of the pendency of an 

PREHEARING MATTERS 6 JUNE 2011
enforcement proceeding and failed to make a timely intervention request following that 

notice. Sequoyah Fuels Corp. & Gen. Atomics (Gore, Oklahoma Site Decontamination 

and Decommissioning Funding), LBP-94-5, 39 NRC 54, aff'd, CLI-94-12, 40 NRC 64 

(1994). 

Where a petitioner sought to have a license-termination proceeding dismissed due to 

improper and insufficient notice, the Commission found notice to be adequate (and 

renotice not necessary) where (1) the Federal Register notice was clear enough to 

alert the petitioner as well as the local government (evidenced by the fact that both 

organizations had submitted documents, including the petitioner’s timely hearing 

request, that indicated awareness of the subject and timing contained in the notice) 

that their interests were potentially affected and (2) other persons with similar interests 

would have recognized the purpose of the notice and responded appropriately, or at 

least would have reviewed the underlying documents that provided further information 

on the substance of the notice and were referenced in the associated series of Federal 

Register notices. See Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), 

CLI-04-28, 60 NRC 412, 415 (2004). 

2.5.3 Publication of Notice of Hearing in Federal Register

In Tennessee Valley Authority (Yellow Creek Nuclear Plant, Units 1 & 2), ALAB-445, 

6 NRC 865 (1977), it was held that, while 10 C.F.R. § 2.104(a) requires that Notice of 

Hearing initiating a construction permit proceeding be published in the Federal Register

at least thirty (30) days prior to commencement of hearing, it does not require that such 

notice establish time, place and date for all phases of the evidentiary hearings. 

However, in an unpublished opinion issued on December 12, 1977, the Federal District 

Court for the Northern District of Mississippi held that the interpretation of the notice 

requirements by the Appeal Board in Yellow Creek was erroneous and that at least 

thirty (30) days prior public notice of the time, place and date of hearing must be 

provided. 

The Federal Register Act expressly provides that such publication of a notice in the 

Federal Register constitutes notice to “all persons residing within the States of the 

Union” (44 U.S.C. § 1508). See Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380 

(1947). See also Long Island Lighting Co. (Jamesport Nuclear Power Station, Units 1 

& 2), ALAB-292, 2 NRC 631 (1975); Florida Power & Light Co. (Turkey Point Nuclear 

Generating Units 3 & 4), LBP-79-21, 10 NRC 183, 191-192 (1979). 

In an operating license amendment proceeding, the Licensing Board ruled that the law 

required the NRC to publish once in the Federal Register notice of its intention to act 

on the application for amendment to the operating license. Turkey Point, supra, 

LBP-79-21, 10 NRC 183, at 192. 

Publication in the Federal Register of conditions on intervention is notice as to all of 

those conditions, and one cannot excuse a failure to meet those conditions by a 

claimed lack of knowledge. Houston Lighting & Power Co. (Allens Creek Nuclear 

Generating Station, Unit 1), ALAB-574, 11 NRC 7, 10 (1980). 

JUNE 2011 PREHEARING MATTERS 7
2.5.4 Requirement to Renotice 

Where a full-term operating license proceeding had been delayed by a lengthy NRC 

Staff review and the original Notice of Opportunity for Hearing had been issued 

10 years earlier, a Licensing Board found it necessary to renotice the opportunity for a 

hearing. Rochester Gas & Elec. Corp. (R.E. Ginna Nuclear Plant, Unit 1), LBP-83-73, 

18 NRC 1231, 1233 (1983), citing Houston Lighting & Power Co. (Allens Creek Nuclear 

Generating Station, Unit 1), ALAB-539, 9 NRC 422 (1979) wherein the Appeal Board 

opined that a hearing notice issued “perhaps 5 to 10 years” earlier is “manifestly stale.” 

The renotice cannot limit the scope of contentions to those involving design changes or 

those based on new information. The new notice must allow the raising of any issues 

which have not been previously heard and decided. See Houston Lighting & Power 

Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377, 386-387 

(1979). However, the Commission did not renotice the Watts Bar Unit 1 license when it 

came before the Commission in 1995. At that time, the Commission did not provide a 

further Notice of Opportunity for Hearing, notwithstanding the fact that the original 

notice was published some 20 years before the application was granted. Although no 

challenge was made to the Commission’s actions in issuing the license at that time, 

some letters raising concerns or objections to the Watts Bar operating license were 

treated as 10 C.F.R. § 2.206 requests. Tennessee Valley Auth. (Watts Bar Nuclear 

Plant, Unit 1), DD-96-11, 44 NRC 69; DD-96-10, 44 NRC 54 (1996). 

The Commission rejected the request of an intervenor who had withdrawn from the 

Comanche Peak operating license proceeding to renotice for hearing the issuance of 

the Unit 2 operating license. The original notice was issued in 1979, the intervenor 

withdrew in 1982, and the remaining issues in controversy were settled by the 

remaining intervenor in 1988. After being denied late intervention to re-enter the 

proceeding in 1988, the Commission rejected the withdrawn intervenor’s subsequent 

request to renotice the Unit 2 proceeding in 1993 when the license was about to issue, 

a request the Commission treated as a petition for late intervention. Texas Utils. Elec. 

Co. (Comanche Peak Steam Elec. Station, Unit 2), CLI-93-1, 37 NRC 1 & CLI-93-4, 

37 NRC 156 (1993). 

The Licensing Board rejected conclusory assertions that changes to an application 

required renoticing in Private Fuel Storage LLC, LBP-98-29, 48 NRC 286, 301(1998). 

2.6 Prehearing Conferences

Prehearing conference matters are governed generally by 10 C.F.R. § 2.329 (formerly 

§§ 2.751a, 2.752). 

Where a party has an objection to the scheduling of the prehearing phase of a 

proceeding, he must lodge such objection promptly. Late requests for changes in 

scheduling will not be countenanced absent extraordinary unexpected circumstances. 

Consolidated Edison Co. of N.Y., Inc. (Indian Point Nuclear Generating Units 1, 2 & 3), 

ALAB-377, 5 NRC 430 (1977). 

A party seeking to be excused from participation in a prehearing conference should 

present its justification in a request filed before the date of the conference. Pub. Serv. Co. 

of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-488, 8 NRC 187, 191 (1978). 

PREHEARING MATTERS 8 JUNE 2011
2.6.1 Transcripts of Prehearing Conferences 

Prehearing conferences may be reported stenographically or by other means. 

10 C.F.R. § 2.329(d) (formerly §§ 2.751a(c), 2.752(b)). 

A Licensing Board must make a “good faith effort” to determine whether the facts 

support a party’s motion to correct the transcript of a prehearing conference. Pub.

Serv. Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-839, 24 NRC 45, 

51 (1986). 

2.6.2 Prehearing Conference Order 

2.6.2.1 Effect of Prehearing Conference Order 

A prehearing conference order may describe action taken at the conference, 

schedule further actions, describe stipulations agreed to, identify key issues, provide 

for discovery and the like. The order will control the subsequent course of 

proceedings unless modified for cause. 10 C.F.R. § 2.329(e) (formerly 

§§ 2.751a(d), 2.752(c)). 

2.6.2.2 Objections to Prehearing Conference Order 

Objections to the prehearing conference order may be filed by a party within 

five (5) days after service of the order. Parties may not file replies to such 

objections unless the presiding officer so directs. 10 C.F.R. § 2.329(e). 

2.6.2.3 Appeal from Prehearing Conference Order 

Since a prehearing conference order is interlocutory in nature, it is not generally 

appealable except with regard to matters for which interlocutory appeal is provided. 

In this vein, that portion of a prehearing conference order which grants or wholly 

denies a petition for leave to intervene is appealable under 10 C.F.R. § 2.311 

(formerly § 2.714a). Mississippi Power & Light Co. (Grand Gulf Nuclear Station, 

Units 1 & 2), ALAB-130, 6 AEC 423, 424 (1973). 

2.7 Television Coverage of Prehearing Conferences

(See Section 6.32) 

2.8 Conference Calls

Both prior to the start of a hearing and sometimes during recesses thereof, it may become 

necessary for the Board to communicate quickly with the parties. In this vein, the practice 

has grown up of using telephone conference calls. Such calls should not be utilized 

unless all parties participate except in the case of the most dire necessity. Puerto Rico 

Water Res. Auth. (North Coast Nuclear Plant, Unit 1), ALAB-313, 3 NRC 94, 96 (1976). If 

any rulings are made, the Licensing Board must make and enter a written order reflecting 

the ruling directly thereafter. Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power 

Plant, Units 1 & 2), ALAB-334, 3 NRC 809, 814-815 (1976). 

JUNE 2011 PREHEARING MATTERS 9
Where a party informs an adjudicatory board that it is not interested in a matter to be 

discussed in a conference call between the board and the other litigants, that party cannot 

later complain that it was not consulted or included in the conference call. Pub. Serv. Co. 

of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-493, 8 NRC 253, 

269 n.63 (1978). 

2.9 Prehearing Motions

2.9.1 Prehearing Motions Challenging ASLB Composition 

Disqualification of a designated presiding officer or a designated member of the ASLB 

is covered generally by 10 C.F.R. § 2.313(b) (formerly § 2.704). 

In Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-101, 6 AEC 60 (1973), 

the Appeal Board listed the circumstances under which a Board member is subject to 

disqualification. Those circumstances include situations in which: 

 (1) the Board member has a direct, personal, substantial pecuniary interest in 

 the results of the case; 

 (2) the Board member has a personal bias against a participant; 

 (3) the Board member has served in a prosecutory or investigative role with 

 regard to the same facts as are in issue; 

 (4) the Board member has prejudged factual – as distinguished from legal or 

 policy – issues; 

 (5) the Board member has engaged in conduct which gives the appearance 

 of personal bias or prejudgment of factual issues. 

A litigant may move for disqualification of any Board member who, by word or deed, 

has manifested a conflict of interest or a bias covered by the above listing. 

10 C.F.R. § 2.313(b) is meant to ensure both the integrity and appearance of integrity 

of the Commission’s formal hearing process. Hydro Res., Inc., CLI-98-9, 47 NRC 326 

(1998). 

2.9.1.1 Contents of Motion Challenging ASLB Composition 

In Duquesne Light Co. (Beaver Valley Power Station, Units 1 & 2), ALAB-172, 

7 AEC 42 (1974), the Appeal Board summarized the requirements for 

disqualification motions as follows: 

 (1) motions must be accompanied by affidavits establishing a basis 

 for the charge; 

 (2) motions must be filed in a timely manner, citing Consumers Power

 Co., ALAB-101, supra; Commonwealth Edison Co. (LaSalle 

 County Nuclear Power Station, Units 1 & 2), CLI-73-8, 6 AEC 169 

 n.1 (1973); 

(3) motions for disqualification, as with all other motions, must be 

served on all parties or their attorneys, citing

10 C.F.R. §§ 2.302(b), 2.323(a) (formerly §§ 2.701(b), 2.730(a)). 

PREHEARING MATTERS 10 JUNE 2011
The requirement of an affidavit must be met even if the basis for the motion is 

founded on matters of public record. Detroit Edison Co. (Greenwood Energy 

Center, Units 2 & 3), ALAB-225, 8 AEC 379 (1974). 

2.9.1.2 Evidence of Bias in Challenges to ASLB Composition 

The Commission applies a “very high threshold for disqualification” to recusal 

motions. For a member to be disqualified, it must be shown that his “impartiality 

might reasonably be questioned.” Hydro Resources, Inc. (2929 Coors Road, 

Suite 101, Albuquerque, NM 87120), CLI-98-9, 47 NRC 326, 331 (1998). 

Although no specific guidelines can be set as to the type or quantum of evidence 

sufficient to support a disqualification motion, it is clear that the mere fact that a 

Board issued a large number of unfavorable or even erroneous rulings with respect 

to a given party is not evidence of bias. To establish bias, something more must be 

shown than that the presiding officials decided matters incorrectly; to be wrong is 

not necessarily to be partisan. Northern Indiana Pub. Serv. Co. (Bailly Generating 

Station, Nuclear-1), ALAB-224, 8 AEC 244, 246 (1974). 

Nor is an alleged institutional bias sufficient for disqualification. Tennessee Valley 

Auth. (Bellefonte Nuclear Plant, Units 1 & 2), ALAB-164, 6 AEC 1143 (1973). 

2.9.1.3 Waiver of Challenges to ASLB Composition 

If a party has reason to believe that there are grounds for disqualification, he must 

raise the question at the earliest possible moment. Failure to move for 

disqualification as soon as the information giving rise to such a claim comes to light 

amounts to a waiver of the objection. Commonwealth Edison Co. (Zion Station, 

Units 1 & 2), ALAB-226, 8 AEC 381, 385 (1974); Northern Indiana Pub. Serv. Co., 

ALAB-224, supra; Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-101, 

6 AEC 60, 64 (1973); Pub. Serv. Elec. & Gas Co. (Atlantic Nuclear Generating 

Station, Units 1 & 2), LBP-78-5, 7 NRC 147, 149 (1978). 

2.9.2 Motions 

The listing of a document on a privilege log is the “occurrence or circumstance” that 

triggers the ten (10)-day period of 10 C.F.R. § 2.323(a) for a motion challenging the 

asserted privilege. Entergy Nuclear Vermont Yankee, L.L.C. & Entergy Nuclear 

Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-05-33, 62 NRC 828, 

837 (2005). 

The consultation requirement of 10 C.F.R. § 2.323(b) does not extend the ten (10)-day 

filing requirement of 10 C.F.R. § 2.323(a). Id.

2.10 Intervention

2.10.1 General Policy on Intervention 

Public participation through intervention is a positive factor in the licensing process and 

intervenors perform a valuable function and are to be complimented and encouraged. 

See, e.g., Virginia Elec. & Power Co. (North Anna Power Station, Units 1 & 2), ALABJUNE 2011 PREHEARING MATTERS 11
256, 1 NRC 10, 18 n.9 (1975); Consolidated Edison Co. of N.Y., Inc. (Indian Point 

Nuclear Generating Unit 2), ALAB-243, 8 AEC 850, 853 (1974); Vermont Yankee 

Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-229, 8 AEC 425 

(1974); Gulf States Utils. Co. (River Bend Station, Units 1 & 2), ALAB-183, 7 AEC 222 

(1974). Nonetheless, 10 C.F.R. § 2.309 does not confer the automatic right of 

intervention upon anyone. The Commission may condition the exercise of that right 

upon the meeting of reasonable procedural requirements. Duke Power Co. (Catawba 

Nuclear Station, Units 1 and 2), ALAB-687, 16 NRC 460, 469 (1982), vacated in part 

on other grounds, CLI-83-19, 17 NRC 1041 (1983). 

To obtain a hearing, a petitioner must demonstrate “an interest affected by the 

proceeding” – i.e., standing – and submit at least one admissible contention. State of 

Alaska Dep’t of Transp. and Pub. Facilities, CLI-04-26, 60 NRC 399, 405 (2004), 

reconsid. denied, CLI-04-38, 60 NRC 652 (2004). Entergy Nuclear Generation Co. &

Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP-06-23, 

64 NRC 257, 272 (2006); Nuclear Fuel Servs., Inc. (Special Nuclear Facility), 

LBP-07-16, 66 NRC 277, 284 (2007). See also 10 C.F.R. § 2.309(a). 

To establish individual standing, it is the Commission’s general rule that persons 

seeking to intervene must identify themselves. See generally Houston Lighting &

Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377, 

389-400 (1979); Shieldalloy Metallurgical Corp., CLI-99-12, 49 NRC 347, 357 (1999). 

The general need for such identification should be obvious. If the Commission does 

not know who the petitioners are, it is usually difficult or impossible for the licensee to 

effectively question, and for the Commission to ultimately determine, whether 

petitioners as individuals have “personally” suffered or will suffer a “distinct and 

palpable” harm that constitutes injury-in-fact – a determination required for a finding of 

standing. Dellums v. NRC, 863 F.2d 968, 971 (D.C. Cir. 1988). See generally AEA, 

§ 189.a., 42 U.S.C. § 2239(a); 10 C.F.R. § 2.309 (d) (formerly § 2.1205(e)(1), (2)). 

The requirements for submission of an admissible contention are outlined in 

10 C.F.R. § 2.309(f)(1)(i)-(vii). The strict contention rule serves multiple functions, 

including: (1) A means of focus of the hearing process on real disputes that can be 

resolved in adjudication. For example, a petitioner cannot demand an adjudicatory 

hearing to attack generic requirements or regulations or to express general grievances 

regarding NRC policies. (2) The requirement of detailed pleadings gives all parties in 

the proceedings notice regarding a petitioner’s grievances, giving each party a good 

sense of the claims they will either support or oppose. (3) The rule helps ensure that 

adjudicatory hearings are triggered only by petitioners able to provide minimum factual 

and legal foundations in support of their contentions. Entergy Nuclear Generation Co. 

& Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP-06-23, 

64 NRC 257, 273 (2006). 

The Commission requires intervenors to provide a clear statement of the basis for 

contentions, as well as supporting information and references to documents and 

sources that serve to establish the validity of the contention. Notice pleading is not 

sufficient. Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), 

CLI-06-24, 64 NRC 111, 118-19 (2006). 

The policy on intervention in enforcement cases is more limited than in other 

proceedings. In order to intervene, a petitioner must show that the proceeding, usually 

PREHEARING MATTERS 12 JUNE 2011
limited to whether the facts in the case are true and support the remedy selected, 

affects an interest of the petitioner’s, and also, generally, must oppose enforcement of 

the selected remedy. Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power 

Station), LBP-03-23, 58 NRC 372, 379 (2003). See also Maine Yankee Atomic Power 

Co. (Maine Yankee Atomic Power Station), LBP-03-26, 58 NRC 396, 401 (2003). See

Section 6.25, “Enforcement Proceedings.” 

2.10.2 Intervenor’s Need for Counsel 

The NRC's Rules of Practice permit non-attorneys to appear and represent their 

organizations in agency proceedings. Metropolitan Edison Co. (Three Mile Island 

Nuclear Station, Unit 1), ALAB-772, 19 NRC 1193, 1247 (1984), rev'd in part on other 

grounds, CLI-85-2, 21 NRC 282 (1985). 

As a rule, pro se petitioners will be held to less rigid standards for pleading, although a 

totally deficient petition will be rejected. Pub. Serv. Elec. & Gas Co. (Salem Nuclear 

Generating Station, Units 1 & 2), ALAB-136, 6 AEC 487 (1973); Shieldalloy 

Metallurgical Corp., CLI-99-12, 49 NRC 347, 354 (1999); Crow Butte Res., Inc. (North 

Trend Expansion Project), LBP-08-6, 67 NRC 241 (2008). While there is no 

requirement that an intervenor be represented by counsel in NRC proceedings, there 

are some indications that the regulations do not contemplate representation of a party 

by a non-lawyer and that any party who does not appear pro se must be represented 

by a lawyer. See 10 C.F.R. § 2.314(a), (b) (formerly § 2.713(a), (b)); Metropolitan 

Edison Co. (Three Mile Island Nuclear Station, Unit 2), ALAB-474, 7 NRC 746, 748 

(1978); Duke Power Co. (Cherokee Nuclear Station, Units 1, 2 & 3), ALAB-440, 6 NRC 

642, 643 n.3 (1977); Virginia Elec. & Power Co. (North Anna Power Station, Units 1 & 

2), Licensing Board Order of October 8, 1976 (unpublished). As the Three Mile Island

and Cherokee cases cited amply demonstrate, however, any requirement that only 

lawyers appear in a representative capacity is usually waived, either explicitly or 

implicitly, as a matter of course. 

When a party elects to proceed without counsel it “must bear responsibility for failures 

to properly and timely submit evidence.” Nuclear Generation Co. and Entergy Nuclear 

Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-14, 71 NRC __ 

(June 17, 2010) (slip op. at 29). 

Insofar as organizations are concerned, 10 C.F.R. § 2.314(b) clearly limits 

representation to either an attorney or a member, and it can logically be read as 

precluding representation by an attorney and a member at the same time. But it does 

not appear to bar representation by a member throughout a proceeding if, at some 

earlier time during the proceeding, an attorney has made an appearance for the 

organization. Cincinnati Gas & Elec. Co. (William H. Zimmer Nuclear Station), 

LBP-79-17, 9 NRC 723, 724 (1979). 

Following the withdrawal of its lead counsel on the eve of its hearing, an intervenor has 

an affirmative duty to request a postponement. A Board is not required to order a 

postponement sua sponte. Cleveland Elec. Illuminating Co. (Perry Nuclear Power 

Plant, Units 1 & 2), ALAB-802, 21 NRC 490, 498 (1985). 

JUNE 2011 PREHEARING MATTERS 13
2.10.3 Petitions to Intervene 

The right of interested persons to intervene as a party in a licensing proceeding stems 

from the AEA, not from the National Environmental Policy Act (NEPA), and is covered 

in AEA § 189 (42 U.S.C. § 2239(a)(1)(A)). Private Fuel Storage, L.L.C. (Independent 

Spent Fuel Storage Installation), CLI-01-1, 53 NRC 1, 6 (2001). 

Section 189.a. of the AEA does not provide an unqualified right to a hearing. The 

Commission is authorized to establish reasonable regulations on procedural matters 

like the filing of petitions to intervene and on the proffering of contentions. Duke Power 

Co. (Catawba Nuclear Station, Units 1 & 2), CLI-83-19, 17 NRC 1041, 1045 (1983), 

citing BPI v. AEC, 502 F.2d 424 (D.C. Cir. 1974); Easton Utils. Comm’n v. AEC, 424 

F.2d 847 (D.C. Cir. 1970). Intervention is not available where there is no pending 

“proceeding” of the sort specified in Section 189a. State of New Jersey (Department of 

Law and Public Safety’s Requests Dated October 8, 1993), CLI-93-25, 38 NRC 289, 

292 (1993); AmerGen Energy Co., Inc. (Oyster Creek Nuclear Generating Station), 

CLI-08-28, 68 NRC 658, 677-78 (2008). 

“[S]ection 189[a]’s hearing requirement does not unduly limit the Commission’s wide 

discretion to structure its licensing hearings in the interests of speed and efficiency.” 

Entergy Co. LLC (Oyster Creek Nuclear Generating Station), CLI-08-28, 68 NRC 658, 

677 (2008) (quoting Union of Concerned Scientists v. NRC, 735 F.2d 1437, 1448 

(D.C. Cir. 1984)). 

Intervention is covered generally in 10 C.F.R. §§ 2.309, 2.311 (formerly §§ 2.714, 

2.714a). Intervention in NRC licensing adjudications whether formal or informal 

generally arises in one of three ways: (1) an individual seeks to intervene on his or her 

own behalf; (2) an organization seeks to intervene to represent the interests of one or 

more of its members; or (3) an organization seeks to intervene on its own. Shieldalloy 

Metallurgical Corp., LBP-99-12, 49 NRC 155, 158 (1999). 

Assuming there exists an NRC proceeding on the issues of concern to a petitioner, that 

petitioner must satisfy the minimum requirements of 10 C.F.R. § 2.309 (formerly 

§ 2.714) which governs intervention in NRC proceedings. Yankee Atomic Elec. Co.

(Yankee Nuclear Power Station), CLI-94-3, 39 NRC 95 (1994). 

An intervention petition must, under 10 C.F.R. § 2.309 (formerly § 2.714(a)(2)), set 

forth with particularity certain factors regarding the petitioner’s interest in the 

proceeding and address the criteria set forth in 10 C.F.R. § 2.309(f)(1) (formerly 

§ 2.714(d)). Florida Power & Light Co. (Turkey Point Plant, Units 3 & 4), CLI-81-31, 14 

NRC 959, 960 (1981); Consumers Power Co. (Big Rock Point Plant), CLI-81-32, 14 

NRC 962, 963 (1981). See also Vermont Yankee Nuclear Power Corp. (Vermont 

Yankee Nuclear Power Station), LBP-90-6, 31 NRC 85, 88, 89, 90 (1990); Georgia 

Power Co. (Vogtle Electric Generating Plant, Units 1 & 2), LBP-91-33, 34 NRC 138, 

140 (1991); Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-94-3, 

39 NRC 95 (1994). The burden is on the petitioner to satisfy these requirements. 

10 C.F.R. § 2.325 (formerly § 2.732); Metropolitan Edison Co. (Three Mile Island 

Nuclear Station, Unit 1), CLI-83-25, 18 NRC 327, 331 (1983); Florida Power & Light 

Co. (St. Lucie Nuclear Power Plant, Unit 2), LBP-87-2, 25 NRC 32, 34 (1987). 

A prospective petitioner has an affirmative duty to demonstrate that it has standing in 

each proceeding in which it seeks to participate since a petitioner’s status can change 

PREHEARING MATTERS 14 JUNE 2011
over time and the bases or its standing in an earlier proceeding may no longer apply. 

Texas Utils. Elec. Co. (Comanche Peak Steam Electric Station, Unit 2), CLI-93-4, 

37 NRC 156, 162-63 (1993). A petitioner may seek to rely on prior demonstrations of 

standing if those prior demonstrations are (1) specifically identified and (2) shown to 

correctly reflect the current status of the petitioner’s standing. Id. 

Simply because a filing is not labeled a petition to intervene does not prevent the 

presiding officer from treating it as a request to initiate a hearing if this, in fact, is what 

the petitioner is seeking. Illinois Power Co. & Soyland Power Coop. (Clinton Power 

Station, Unit 1), LBP-97-4, 45 NRC 125, 126 n.1 (1997), citing Yankee Atomic Elec. 

Co. (Yankee Nuclear Power Station), CLI-96-1, 43 NRC 1, 5 (1996). 

There is nothing in 10 C.F.R. § 2.309 or the case law interpreting that rule which 

permits Licensing Boards to exclude certain groups because of their opinions on 

nuclear power, either generally or as related to specific plants, nor is there a 

Commission rule prescribing the conduct of any party (other than licensees or others 

subject to its regulatory jurisdictions) outside adjudicatory proceedings. Consolidated 

Edison Co. of New York (Indian Point Nuclear Generating Unit 2); Power Auth. of the 

State of New York (Indian Point Nuclear Generating Unit 3), CLI-82-15, 16 NRC 27, 31, 

32 (1982). 

The testimony of experts sponsored by petitioner may make a valuable contribution to 

the record, but the merits of that testimony need not be decided in order to admit a 

petitioner as a party. Arizona Pub. Serv. Co. (Palo Verde Nuclear Generating Station, 

Units 1, 2 & 3), LBP-82-117B, 16 NRC 2024, 2029 (1982). 

While it is true that a petitioning organization must disclose the name and address of at 

least one member with standing to intervene so as to afford the other litigants the 

means to verify that standing exists, Houston Lighting & Power Co. (Allens Creek 

Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377, 389-400 (1979), there is 

no requirement that the identification of such a member or members be made in the 

petition to intervene or in an attached affidavit. Washington Pub. Power Supply Sys.

(WPPSS Nuclear Project 1), LBP-83-59, 18 NRC 667, 669 (1983). 

In the first instance, the decision as to whether to grant or deny a petition to intervene 

or a request for a hearing lies with the Licensing Board. Metropolitan Edison Co.

(Three Mile Island Nuclear Station, Units 1 & 2), CLI-73-16, 6 AEC 391 (1973). 

In past operating license cases, petitions to intervene were sometimes considered and 

ruled upon by an ASLB especially appointed for that purpose, and a separate ASLB 

conducted separate proceedings if intervention were permitted. Pacific Gas & Elec. 

Co. (Stanislaus Nuclear Project, Unit 1), ALAB-400, 5 NRC 1175, 1177-78 (1977). In 

construction permit cases, a single ASLB usually performed both tasks. See

Mississippi Power & Light Co. (Grand Gulf Nuclear Station, Units 1 & 2), ALAB-130, 

6 AEC 423, 424 n.2 (1973). 

In NRC proceedings in which a hearing is not mandatory but depends upon the filing of 

a successful intervention petition, an “intervention” Licensing Board has authority only 

to pass upon the intervention petition. If the petition is granted, thus giving rise to a full 

hearing, a second Licensing Board, which may or may not be composed of the same 

members as the first Board, is established to conduct the hearing. Wisconsin Elec.

Power Co. (Point Beach Nuclear Plant, Units 1 & 2), LBP-78-23, 8 NRC 71, 73 (1978). 

JUNE 2011 PREHEARING MATTERS 15
See also Commonwealth Edison Co. (Byron Station, Units 1 & 2), LBP-81-30-A, 

14 NRC 364, 366 (1981), citing Pacific Gas & Elec. Co. (Stanislaus Nuclear Project, 

Unit 1), ALAB-400, 5 NRC 1175 (1977). 

In ruling on a petition to intervene, the Licensing Board must consider, inter alia, the 

nature of the petitioner’s right under the AEA to be made a party to the proceeding, the 

nature and extent of the petitioner’s property, financial or other interest in the 

proceeding, and the possible effect of any order which may be entered in the 

proceeding on the petitioner’s interests. 10 C.F.R. § 2.309(d) (formerly § 2.714(d)); 

Washington Pub. Power Supply Sys. (WPPSS Nuclear Projects No. 3 and No. 5), 

LBP-77-16, 5 NRC 650 (1977). Pa’ina Hawaii, LLC, LBP-06-4, 63 NRC 99, 103 

(2006). See also Fla. Power & Light Co., FPL Energy Seabrook, LLC, FPL Energy 

Duane Arnold, LLC, Constellation Energy Group, Inc. (Calvert Cliffs Nuclear Plant, 

Units 1 & 2; Calvert Cliffs Independent Spent Fuel Storage Installation; Nine Mile Point 

Nuclear Station, Units 1 & 2; R.E. Ginna Nuclear Power Plant; Turkey Point Nuclear 

Generating Plants, Units 3 & 4; St. Lucie Nuclear Power Plant, Units 1 & 2; Seabrook 

Station; Duane Arnold Energy Center), CLI-06-21, 64 NRC 30, 33-34 (2006) (failure to 

comply with pleading requirements for late filings constitutes sufficient grounds for 

rejecting intervention and hearing requests). 

The ASLB must make specific determinations as to whether the petition is proper and 

meets the requirements for intervention and must articulate in reasonable detail the 

basis for its determination. Duquesne Light Co. (Beaver Valley Power Station, Unit 1), 

ALAB-105, 6 AEC 181 (1973); Northern States Power Co. (Prairie Island Nuclear 

Generating Plant, Units 1 & 2), ALAB-104, 6 AEC 179 (1973). See Rockwell Int’l Corp.

(Rocketdyne Division), ALAB-925, 30 NRC 709, 722 (1989) (rulings on intervention 

petitions should be in writing), aff’d, CLI-90-5, 31 NRC 337, 341 (1990). 

2.10.3.1 Pleading Requirements 

Under 10 C.F.R. § 2.309 (formerly § 2.714), a petition to intervene must: 

 (1) be in writing (2.309(a)); 

 (2) specify the contentions which the person seeks to have litigated in the 

 hearing (2.309(a)); 

 (3) set forth with particularity the interest of the petitioner in the matter, the 

 manner in which that interest may be affected by the proceeding, and 

 the reasons why the petitioner should be permitted to intervene with 

 particular reference to the petitioner's right to be made a party under 

 the Atomic Energy Act, the nature and extent of petitioner's property, 

 financial or other interest in the proceeding, and the possible effect of 

 any order entered in the proceeding on petitioner's interest (2.309(d). 

Under 10 C.F.R. § 2.309 (formerly § 2.714) and 10 C.F.R. § 2.309(f) (formerly 

§ 2.714(b)) an intervention petition must not only set forth with particularity the 

interest of the petitioner and how that interest may be affected by the proceeding, 

but must also include the bases for each contention, sufficiently detailed and 

specific to demonstrate that the issues raised are admissible and that further inquiry 

is warranted. Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power 

Station), LBP-82-4, 15 NRC 199, 206 (1982). See also Philadelphia Electric Co.

(Limerick Generating Station, Unit 1), LBP-86-9, 23 NRC 273, 277 (1986); Amergen 

PREHEARING MATTERS 16 JUNE 2011
Energy Co., LLC (Oyster Creek Nuclear Generating Station), LBP-06-22, 

64 NRC 229, 234-35 (2006). Intervenors are not asked to prove their case at the 

contention stage, or to provide an exhaustive list of possible bases, but simply to 

provide sufficient alleged factual or legal bases to support the contention, and to do 

so at the outset. However, the Commission’s contention rules do not allow using 

reply briefs to provide, for the first time, the necessary threshold support for 

contentions. Louisiana Energy Services, L.P. (National Enrichment Facility), 

CLI-04-35, 60 NRC 619, 623 (2004). 

In BPI v. AEC, 502 F.2d 424 (D.C. Cir. 1974), the Court of Appeals for the District of 

Columbia Circuit upheld various aspects of 10 C.F.R. § 2.309 (formerly § 2.714), 

including the requirement that contentions be specified, and the requirement that the 

basis for contentions be set forth. 

Petitions drawn by counsel experienced in NRC practice must exhibit a high degree 

of specificity. In contrast, Licensing Boards are to be lenient in this respect for 

petitions drawn pro se or by counsel new to the field or to the bar. Kansas Gas & 

Electric Co. (Wolf Creek Generating Station), ALAB-279, 1 NRC 559, 576-577 

(1975). See also Wisconsin Pub. Serv. Corp. (Kewaunee Nuclear Power Plant), 

LBP-78-24, 8 NRC 78, 82 (1978). 

Although a totally deficient pleading may not be justified on the basis that it was 

prepared without the assistance of counsel, a pro se petitioner is not “to be held to 

those standards of clarity and precision to which a lawyer might reasonably be 

expected to adhere.” Pub. Serv. Elec. & Gas Co. (Salem Nuclear Generating 

Station, Units 1 & 2), ALAB-136, 6 AEC 487, 489 (1973), cited in Houston Lighting &

Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, 

11 NRC 542, 546 (1980); Consumers Power Co. (Midland Plant, Units 1 & 2), 

LBP-82-63, 16 NRC 571, 578 (1982). 

Section 189.a. of the AEA does not provide a non-discretionary right to a hearing on 

all issues arguably related to an acknowledged enforcement problem, without 

regard to the scope of the enforcement action actually proposed or taken. In order 

to be granted leave to intervene, one must demonstrate an interest affected by the 

action, as required by 10 C.F.R. § 2.309 (formerly § 2.714). Boston Edison Co.

(Pilgrim Nuclear Power Station), CLI-82-16, 16 NRC 44, 45 (1982), citing BPI v. 

Atomic Energy Comm’n, 502 F.2d 424 (D.C. Cir. 1974). 

Where critical information has been submitted to the NRC under a claim of 

confidentiality and was not available to the petitioners when framing their issues, the 

Commission has deemed it appropriate to defer ruling on the admissibility of an 

issue until the petitioner has had an opportunity to review this information and 

submit a properly documented issue. Power Auth. of the State of New York, et al.

(James FitzPatrick Nuclear Power Plant; Indian Point Nuclear Generating Unit 3), 

CLI-00-22, 52 NRC 266, 300 (2000). 

2.10.3.2 Defects in Pleadings 

Although the requirements of 10 C.F.R. § 2.309 must ultimately be met, every 

benefit of the doubt should be given to the potential intervenor in order to obviate 

dismissal of an intervention petition because of inarticulate draftsmanship or 

JUNE 2011 PREHEARING MATTERS 17
procedural or pleading defects. Sequoyah Fuels Corp. (Gore, Oklahoma Site 

Decontamination and Decommissioning Funding), LBP-94-8, 39 NRC 116 (1994). 

As such, petitioners will usually be permitted to amend petitions containing curable 

defects. Virginia Electric & Power Co. (North Anna Power Station, Units 1 & 2), 

ALAB-146, 6 AEC 631 (1973). See Long Island Lighting Co. (Shoreham Nuclear 

Power Station, Unit 1), LBP-91-1, 33 NRC 15, 40 (1991); Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), LBP-91-7, 33 NRC 179, 195 (1991); 

Sequoyah Fuels Corp. & Gen. Atomics (Gore, Oklahoma Site), LBP-94-19, 

40 NRC 9, 15 (1994). A Licensing Board itself has no duty to recast contentions 

offered by a petitioner to make them acceptable under the regulations. 

Commonwealth Edison Co. (Zion Station, Units 1 & 2), ALAB-226, 8 AEC 381, 406 

(1974); Pub. Serv. Co. of New Hampshire (Seabrook Station, Units 1 & 2), 

LBP-82-106, 16 NRC 1649, 1660 (1982); Commonwealth Edison Co. (Zion Nuclear 

Power Station, Units 1 & 2), CLI-99-4, 49 NRC 185, 197 (1999). 

Pro se petitioners will be held to less rigid standards of clarity and precision with 

regard to the petition to intervene. Nevertheless, a totally deficient petition will be 

rejected. Pub. Serv. Elec. & Gas Co. (Salem Nuclear Generating Station, Units 1 

& 2), ALAB-136, 6 AEC 487, 489 (1973). While greater latitude should be afforded 

a pleading submitted by a pro se petitioner, the pro se petitioner still bears the 

burden to provide sufficient facts to support standing. U.S. Army Installation 

Command (Schofield Barracks, Oahu, Hawaii, and Pohakuloa Training Area, Island 

of Hawaii, Hawaii), CLI-10-20, 71 NRC ___ (Aug. 12, 2010) (slip op. at 4), citing 

PPL Bell Bend, LLC (Bell Bend Nuclear Power Plant), CLI-10-7, 70 NRC ___ 

(Jan. 7, 2010) (slip op. at 7). 

The value of having local governments participate in proceedings can justify holding 

local government intervention petitioners to less stringent pleading standards than 

those to which an ordinary petitioner would be held. Dominion Nuclear Connecticut, 

Inc. (Millstone Nuclear Power Station, Units 2 & 3), LBP-05-16, 62 NRC 56, 69-70 

(2005). 

The obvious intent of the procedural requirements on contentions is to ensure the 

identification of bona fide litigative issues. A concern has been expressed in 

Commission adjudicatory directives about not utilizing pleading “niceties” to exclude 

parties who have a clear, albeit imperfectly stated, interest. Sequoyah Fuels Corp.

(Gore, Oklahoma Site Decontamination and Decommissioning Funding), LBP-94-8, 

39 NRC 116, 120 (1994), citing Houston Lighting & Power Co. (South Texas 

Project, Units 1 & 2), ALAB-549, 9 NRC 644, 649 (1979). Parties who appear 

before the Commission bear responsibility for any possible misapprehension of their 

position caused by the inadequacies of their briefs. Sacramento Mun. Util. Dist.

(Rancho Seco Nuclear Generating Station), CLI-93-3, 37 NRC 135, 143 n.17 

(1993). 

Where a petitioner has not expressly requested a hearing on its petition, but where it 

seems clear from the petition as a whole that a hearing is what the petitioner 

desires, the Commission will not dismiss that petition solely on the basis of such a 

technical pleading defect. Yankee Atomic Elec. Co. (Yankee Nuclear Power 

Station), CLI-96-1,43 NRC 1, 5 (1996). 

PREHEARING MATTERS 18 JUNE 2011
Although it is permissible for a Licensing Board to reformulate contentions to excise 

extraneous issues or to consolidate issues for purposes of efficiency, “a board 

should not add material not raised by a petitioner in order to render a contention 

admissible.” Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim 

Nuclear Power Station), CLI-10-14, 71 NRC __ (June 17, 2010) (slip op. at n.80) 

(quoting Crow Butte Resources, Inc. (North Trend Expansion Area), CLI-09-12, 

69 NRC 535, 552-53 (2009)). 

Petitioners must follow NRC requirements in filing pleadings seeking a hearing. For 

an organization, these include a statement as to whom it represents, a sworn 

statement as to where the represented individuals reside or how far they reside from 

the alleged threat, and a plausible scenario concerning how they may suffer health 

or safety consequences. Int’l Uranium Corp. (White Mesa Uranium Mill), 

LBP-97-12, 46 NRC 1, 6 (1997). 

The Commission does not consider the exceeding of a page limit to be an error so 

great that it merits sanctioning especially when the offending counsel immediately 

corrected the error once attention was brought to it. Hydro Res., Inc., CLI-00-08, 

51 NRC 227, 244 (2000). 

The Commission and Licensing Boards have imposed sanctions against a party 

seeking to file a written request for a hearing only when that party has not followed 

established Commission procedures despite prior agency warning. Florida Power & 

Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), LBP-08-18, 

68 NRC 533, 543 (2008). Where the petition is meritless, it warrants denial not 

sanctions, though repeated filings of meritless petitions may result in summary 

denials of such petitions. Id.

Intervention petitions and requests for hearing cannot properly raise antitrust issues 

and health and safety issues in the same proceedings. Duke Power Co. (Catawba 

Nuclear Station, Units 1 & 2), LBP-81-1, 13 NRC 27, 32 (1981). 

2.10.3.3 Time Limits/Late Petitions 

The Commission’s regulations at 10 C.F.R. § 2.309(c) (formerly § 2.714(a)(1)) 

provide that nontimely filings of petitions to participate as a party will not be 

entertained absent a determination that the petition should be granted based upon a 

balancing of eight (previously five) factors. (See Section 2.10.3.3.3 for the factors.) 

The factors involving the availability of other means to protect petitioner’s interest 

and the ability of other parties to represent petitioner’s interest are entitled to less 

weight than the other factors. Mississippi Power & Light Co. (Grand Gulf Nuclear 

Station, Units 1 & 2), LBP-82-92, 16 NRC 1376, 1381, 1384 (1982); Kansas Gas &

Elec. Co. (Wolf Creek Generating Station, Unit 1), LBP-84-17, 19 NRC 878, 887 

(1984), citing Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB707, 16 NRC 1760, 1767 (1982). See Texas Utils. Elec. Co. (Comanche Peak 

Steam Electric Station, Units 1 & 2), CLI-92-12, 36 NRC 62, 74 (1992). 

If the lateness of a petition to intervene is not egregious, and will not cause 

substantial delay to the parties, those considerations will outweigh the fact that the 

balance of the factors required under 10 C.F.R. § 2.309(c)(1) tips slightly against the 

petitioner. Puget Sound Power & Light Co. (Skagit/Hanford Nuclear Power Project, 

JUNE 2011 PREHEARING MATTERS 19
Units 1 & 2), LBP-82-74, 16 NRC 981, 985 (1982), citing Duke Power Co.

(Amendment to Materials License SNM – 1773 – Transportation of Spent Fuel from 

Oconee Nuclear Station for Storage at McGuire Nuclear Station), ALAB-528, 

9 NRC 146, 150 (1979). 

It is within the presiding officer’s discretion to permit an intervenor to make a belated 

lateness showing. Sequoyah Fuels Corp. & Gen. Atomics (Gore, Oklahoma Site 

Decontamination and Decommissioning Funding), LBP-94-5, 39 NRC 54, aff’d on 

other grounds, CLI-94-12, 40 NRC 64 (1994). 

When a licensing process has been divided into distinct hearings on separate 

issues, contentions which should have been filed in the previous hearing will be 

considered late when filed in current hearing and must satisfy the requirements of 

10 C.F.R. § 2.309(c). Shaw Areva MOX Services (Mixed Oxide Fuel Fabrication 

Facility), LBP-07-14, 66 NRC 169, 192 (2007). 

The exclusion from a proceeding of persons or organizations who have slept on 

their rights does not offend any public policy favoring broad citizen involvement in 

nuclear licensing adjudications. Assuming that such a policy finds footing in 

Section 189.a. of the AEA of 1954, as amended, 42 U.S.C. § 2239(a), it must be 

viewed in conjunction with the equally important policy favoring the observance of 

established time limits. Long Island Lighting Co. (Shoreham Nuclear Power Station, 

Unit 1), ALAB-743, 18 NRC 387, 396 n.37 (1983). 

Late intervention is possible until issuance of a full-power license. Therefore, 

issuance of a low-power license does not bar late intervention. Texas Utils. Elec.

Co. (Comanche Peak Steam Electric Station, Unit 2), CLI-93-4, 37 NRC 156, 160 

(1993). 

A person seeking a discretionary hearing after the expiration of the time period for 

filing intervention petitions should either address the late intervention and reopening 

criteria or explain why they do not apply. Texas Utils. Elec. Co. (Comanche Peak 

Steam Electric Station, Unit 2), CLI-93-1, 37 NRC 1, 3-4 (1993). 

Presentation of new arguments in support of contentions at a prehearing conference 

is improper and may be barred on lateness grounds. USEC, Inc. (American 

Centrifuge Plant), CLI-06-10, 63 NRC 451, 476 (2006). 

2.10.3.3.1 Time for Filing Intervention Petitions 

A person cannot intervene in a proceeding before the issuance of a “notice of 

hearing” or a “notice of proposed action,” which is a prerequisite to the initiation 

of a proceeding. Petitions filed prior to this issuance are “clearly premature” and 

may be rejected by the Secretary. Dominion Nuclear Connecticut, Inc. (Millstone 

Nuclear Power Station, Units 2 & 3), CLI-04-12, 59 NRC 237, 239-40 (2004); 

U.S. Dep’t of Energy (High-Level Waste Repository), CLI-08-20, 68 NRC 272, 

275 (2008). 

10 C.F.R. § 2.105(d) states that: 

PREHEARING MATTERS 20 JUNE 2011
The notice of proposed action will provide that, within thirty (30) days from 

the date of publication of the notice in the Federal Register, or such lesser 

period authorized by law as the Commission may specify: 

(1) The applicant may file a request for a hearing; and 

(2) Any person whose interest may be affected by the proceeding may file 

a request for a hearing or a petition for leave to intervene if a hearing has 

already been requested. 

With regard to antitrust matters, petitions to intervene or requests for hearing 

must be filed not later than the time specified in the notice for hearing or as 

provided by the Commission, the presiding officer or the Licensing Board 

designated to rule on petitions and/or requests for hearing, or as provided in 

10 C.F.R. § 2.102(d)(3). Long Island Lighting Co. (Shoreham Nuclear Power 

Station, Unit 1), LBP-83-42, 18 NRC 112, 116 (1983). 

For an intervenor who wishes to become a party to a hearing to protect its 

interest in seeing that the Staff enforcement order challenged in a proceeding is 

sustained, the matter adversely affecting the petitioner’s interest is not the 

“order,” with which it agrees, but the agency's “proceeding” relative to that order, 

which carries the potential for overturning or modifying the order in derogation of 

the petitioner’s interest. Sequoyah Fuels Corp. & Gen. Atomics (Gore, 

Oklahoma Site Decontamination and Decommissioning Funding), LBP-94-5, 

39 NRC 54, aff’d, CLI-94-12, 40 NRC 64 (1994). 

The filing of an intervention petition is considered complete on the date it is 

deposited in the mail, not when it is actually postmarked. 10 C.F.R. § 2.302(c) 

(formerly § 2.701(c)). Northeast Nuclear Energy Co. (Millstone Nuclear Power 

Station, Unit 2), LBP-92-28, 36 NRC 202, 205-206 (1992). 

The award of an operating license effectively terminates the operating license 

proceeding and any construction permit amendment proceedings. Anyone who 

subsequently challenges the issuance of the operating license or seeks the 

suspension of the license should not file a petition for late intervention, but 

instead, must file a petition under 10 C.F.R. § 2.206, requesting that the 

Commission initiate enforcement action pursuant to 10 C.F.R. § 2.202. Texas 

Utils. Elec. Co. (Comanche Peak Steam Electric Station, Units 1 & 2), CLI-92-12, 

36 NRC 62, 67, 77-78 (1992). Texas Utils. Elec. Co. (Comanche Peak Steam 

Electric Station, Unit 2), CLI-93-4, 37 NRC 156, 160 (1993); Dominion Nuclear 

Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-06-4, 

63 NRC 32, 36 n.4 (2006). 

2.10.3.3.1.A Timeliness of Amendments to Intervention Petitions 

On issues arising under NEPA, a petitioner must file contentions based on the 

applicant’s environmental report, but may amend its contentions or file new 

contentions pursuant to 10 C.F.R. § 2.309(f)(2)(i)-(iii) if there are data or 

conclusions in the draft or final environmental impact statements (EISs) that 

are significantly different from the data or conclusions in the applicant’s 

documents. By definition, an amended contention may include additional 

issues outside the scope of the contention as originally admitted. Louisiana 

JUNE 2011 PREHEARING MATTERS 21
Energy Servs., L.P. (National Enrichment Facility), CLI-05-20, 62 NRC 523, 

533 (2005). 

2.10.3.3.2 Sufficiency of Notice of Time Limits on Intervention 

Although the Appeal Board has stated that it would leave open the question as to 

whether Federal Register notice without more is adequate to put a potential 

intervenor on notice for filing intervention petitions, Pennsylvania Power & Light 

Co. (Susquehanna Steam Electric Station, Units 1 & 2), ALAB-148, 6 AEC 642, 

643 n.2 (1973), the Board tacitly assumed that such notice was sufficient in 

Tennessee Valley Authority (Browns Ferry Nuclear Plant, Units 1 & 2), 

ALAB-341, 4 NRC 95 (1976) (claims by petitioner that there was a “press 

blackout” and that he was unaware of Commission rules requiring timely 

intervention will not excuse untimely petition for leave to intervene). 

Publication of notice in the Federal Register is deemed notice to all. Once notice 

is published, no party or potential intervenor may claim ignorance of the contents 

of the notice, including time limits. Sequoyah Fuels Corp. (Gore, Oklahoma 

Site), LBP-03-24, 58 NRC 383, 389 (2003). 

If the only agency issuance providing constructive notice of a filing deadline for 

hearing requests is a Staff enforcement order issued in accordance with 

10 C.F.R. § 2.202(a)(3) that, by its terms, is not applicable to persons who wish 

to intervene in support of the order, then an intervention petition filed by such a 

person cannot be deemed untimely for failing to meet an appropriately noticed 

filing deadline. Sequoyah Fuels Corp. & Gen. Atomics (Gore, Oklahoma Site 

Decontamination and Decommissioning Funding), LBP-94-5, 39 NRC 54, aff’d, 

CLI-94-12, 40 NRC 64 (1994). 

Even though there is no Federal Register notice of an amendment application, 

the fact the amendment was placed in a local public document room (LPDR) 

created for a facility provides an enhanced opportunity for access to licensing 

information that should be taken into account in analyzing the timeliness of an 

intervention petition. It is reasonable to expect that, from time to time, those in 

the area of the facility who may have an interest in the proceeding, would visit the 

LPDR to check on its status. At the same time, non-party status to a proceeding 

is a pertinent factor in assessing the frequency of such visits. A non-party would 

not be expected to visit the LPDR as often as a party given the need to travel to 

the LPDR in order to see the files. With this in mind, one LPDR trip a month by a 

non-party to monitor a proceeding seems reasonable. Private Fuel Storage, 

L.L.C., LBP-99-3, 49 NRC 40, 47 (1999). 

There is nothing in either the Commission’s Rules of Practice or its jurisprudence 

that empowers members of its Staff to breathe new life into an opportunity for 

hearing that is already confronted with the passage of the filing deadline that 

established that opportunity. Gen. Elec. Co. (Vallecitos Nuclear Center), 

LBP-00-3, 51 NRC 49, 50 (2000). 

The Federal Register Act (44 U.S.C. § 1508) requires that when notice of hearing 

or of opportunity to be heard is required or authorized by law, the agency 

provides notice at least fifteen (15) days prior to the expiration of the opportunity 

PREHEARING MATTERS 22 JUNE 2011
unless a shorter period is reasonable. Notices of opportunity to be heard 

concerning orders of the Commission issued pursuant to 10 C.F.R. § 2.202(a) 

must comply with 44 U.S.C. § 1508. Pursuant to Section 1508, if the period 

between publication of the Federal Register notice and the date fixed for 

termination of the opportunity to be heard is less than the minimum number of 

days required, then the notice is legally ineffective to provide constructive notice 

of the right to be heard. Detroit Edison Co., Fermi Power Plant (Independent 

Spent Fuel Storage Installation), LBP-09-20, 70 NRC ___ (Aug. 21, 2009) (slip 

op. at 6-8). 

2.10.3.3.3 Consideration of Untimely Petitions to Intervene 

Under 10 C.F.R, § 2.309(c), determination on any “nontimely” filing of a petition 

must be based on a balancing of certain factors, the most important of which is 

“good cause, if any, for the failure to file on time.” Crow Butte Res., Inc. (North 

Trend Expansion Project), LBP-08-6, 67 NRC 241 (2008). 10 C.F.R. § 2.309(c) 

(formerly § 2.714(a)) provides that nontimely petitions to intervene or requests for 

hearing will not be considered absent a determination that the petition or request 

should be granted based upon a balancing of the following factors: 

 (1) good cause, if any, for failure to file on time; 

 (2) the nature of the requestor’s/petitioner’s right under the Act 

to be made a party to the proceeding; 

 (3) the nature and extent of the requestor’s/petitioner’s 

property, financial or other interest in the proceeding; 

 (4) the possible effect of any order that may be entered in the 

proceeding on the requestor’s/petitioner’s interest; 

 (5) the availability of other means for protecting the petitioner’s 

interests; 

 (6) the extent to which the petitioner’s interest will be 

represented by existing parties; 

 (7) the extent to which petitioner’s participation will broaden 

the issues or delay the proceeding; and 

 (8) the extent to which petitioner’s participation might 

reasonably assist in developing a sound record. 

Puget Sound Power & Light Co. (Skagit/Hanford Nuclear Power Project, Units 1 

& 2), LBP-82-74, 16 NRC 981, 984 (1982); Detroit Edison Co. (Enrico Fermi 

Atomic Power Plant, Unit 2), LBP-82-96, 16 NRC 1408, 1429 (1982); Long Island 

Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-743, 18 NRC 387, 

390 n.3 (1983), citing 10 C.F.R. § 2.309(c); Washington Pub. Power Supply Sys.

(WPPSS Nuclear Project No. 3), ALAB-747, 18 NRC 1167, 1170 n.3 (1983); 

Boston Edison Co. (Pilgrim Nuclear Power Station), LBP-85-24, 22 NRC 97, 98 

n.3 (1985), aff’d, ALAB-816, 22 NRC 461 (1985); Philadelphia Elec. Co.

(Limerick Generating Station, Unit 1), LBP-86-9, 23 NRC 273, 278 n.6 (1986); 

Texas Utils. Elec. Co. (Comanche Peak Steam Electric Station, Units 1 & 2), 

CLI-88-12, 28 NRC 605, 608-609 (1988), reconsid. denied on other grounds, 

CLI-89-6, 29 NRC 348 (1989), aff’d sub nom., Citizens for Fair Util. Regulation v. 

NRC, 898 F.2d 51 (5th Cir. 1990); Florida Power & Light Co. (Turkey Point 

Nuclear Generating Plant, Units 3 & 4), LBP-90-5, 31 NRC 73, 76 (1990), aff’d, 

ALAB-950, 33 NRC 492, 495-96 (1991); Ohio Edison Co. (Perry Nuclear Power 

JUNE 2011 PREHEARING MATTERS 23
Plant, Unit 1) and Cleveland Elec. Illuminating Co. and Toledo Edison Co. (Perry 

Nuclear Power Plant, Unit 1; Davis-Besse Nuclear Power Station, Unit 1), 

LBP-91-38, 34 NRC 229, 246-47, 253-54 (1991), aff’d in part on other grounds 

and appeal denied, CLI-92-11, 36 NRC 47 (1992); Texas Utils. Elec. Co.

(Comanche Peak Steam Electric Station, Units 1 & 2), CLI-92-12, 36 NRC 62, 69 

(1992); Private Fuel Storage, L.L.C., LBP-99-3, 49 NRC 40, 46 (1999); Private 

Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-00-8, 

51 NRC 146, 153 (2000); Amergen Energy Co., LLC (Oyster Creek Nuclear 

Generating Station), LBP-06-22, 64 NRC 229, 234 n. 7 (2006); Crow Butte Res., 

Inc. (North Trend Expansion Project), LBP-08-6, 67 NRC 241 (2008). 

“The first factor – whether good cause exists to execute the late-filing of the 

contention – is the most important factor” when determining whether to admit 

late-filed contentions. If good cause is not shown, a petitioner must make a 

compelling showing on the remaining factors. Pacific Gas & Elec. Co. (Diablo 

Canyon Power Plant Independent Spent Fuel Storage Installation), CLI-08-08, 

67 NRC 193 (2008). 

Under 10 C.F.R. § 2.309(c)(1), even if a late-filing intervenor cannot show good 

cause for the late filing, the Board must still balance all of the relevant factors to 

determine whether the late-filed petition should be granted. Dominion Nuclear 

Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3), LBP-05-16, 

62 NRC 56, 65 (2005). 

Where no good excuse is tendered for the tardiness, the petitioner’s 

demonstration on the other factors must be particularly strong. Duke Power Co.

(Perkins Nuclear Station, Units 1, 2, & 3), ALAB-431, 6 NRC 460, 462 (1977) and 

cases there cited. See also Kansas Gas & Elec. Co. (Wolf Creek Generating 

Station, Unit 1), LBP-84-17, 19 NRC 878, 887 (1984); Consumers Power Co.

(Midland Plant, Units 1 & 2), LBP-82-63, 16 NRC 571, 577 (1982), citing Nuclear 

Fuel Servs., Inc. & New York State Atomic and Space Dev. Auth. (West Valley 

Reprocessing Plant), CLI-75-4, 1 NRC 273, 275 (1975). Absent a showing of 

good cause for late filing, an intervention petitioner must make a “compelling 

showing” on the other factors stated in 10 C.F.R. § 2.309(c) governing late 

intervention. Mississippi Power & Light Co. (Grand Gulf Nuclear Station, Units 1 

& 2), ALAB-704, 16 NRC 1725, 1730 (1982), citing South Carolina Electric & Gas 

Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881, 894 

(1981), aff’d sub nom. Fairfield United Action v. NRC, 679 F.2d 261 

(D.C. Cir. 1982); Texas Utils. Elec. Co. (Comanche Peak Steam Electric Station, 

Units 1 & 2), CLI-88-12, 28 NRC 605, 610 (1988), reconsid. denied on other 

grounds, CLI-89-6, 29 NRC 348 (1989), aff’d sub nom., Citizens for Fair Util.

Regulation v. NRC, 898 F.2d 51, 55 (5th Cir. 1990); Ohio Edison Co. (Perry 

Nuclear Power Plant, Unit 1) and Cleveland Elec. Illuminating Co. and Toledo 

Edison Co. (Perry Nuclear Power Plant, Unit 1; Davis-Besse Nuclear Power 

Station, Unit 1), LBP-91-38, 34 NRC 229, 246-47 (1991), aff’d in part on other 

grounds and appeal denied, CLI-92-11, 36 NRC 47 (1992); Texas Utils. Elec. Co.

(Comanche Peak Steam Electric Station, Units 1 & 2), CLI-92-12, 36 NRC 62, 

73-75 (1992). In Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power 

Station, Units 2 & 3), LBP-05-16, 62 NRC 56, 68-69 (2005), the Board found the 

balance of factors to favor allowing the local government to intervene despite the 

local government’s inability to show good cause for the delay because the 

PREHEARING MATTERS 24 JUNE 2011
participation of the late-filing local government petitioner was expected to be 

particularly valuable to the proceedings. 

Petitioner satisfies the [fifth] and [sixth] parts of the [eight] late intervention criteria 

in 10 C.F.R. § 2.309 c)(1)(i)-(viii) (formerly § 2.714(a)(1)(i)-(v)) when there is 

currently no proceeding, assuming arguendo that the petitioner has standing, 

because there will generally be no other means by which that petitioner can 

protect its interest and because there is currently no proceeding, there will be no 

other party to represent petitioner’s interest. See Texas Utils. Elec. Co.

(Comanche Peak Steam Electric Station, Unit 2), CLI-93-4, 37 NRC 156, 165 

(1993); Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power Station), 

LBP-03-23, 58 NRC 372, 378 (2003). 

In determining how compelling a showing a petitioner must make on the other 

factors, a Licensing Board need not attach the same significance to a delay of 

months as to a delay involving a number of years. The significance of the 

tardiness, whether measured in months or years, will generally depend on the 

posture of the proceeding at the time the petition surfaces. Washington Pub.

Power Supply Sys. (WPPSS Nuclear Project No. 3), ALAB-747, 18 NRC 1167, 

1173 (1983), citing Long Island Lighting Co. (Shoreham Nuclear Power Station, 

Unit 1), ALAB-743, 18 NRC 387, 398-399 (1983). See Ohio Edison Co. (Perry 

Nuclear Power Plant, Unit 1) and Cleveland Elec. Illuminating Co. and Toledo 

Edison Co. (Perry Nuclear Power Plant, Unit 1; Davis-Besse Nuclear Power 

Station, Unit 1), LBP-92-19, 36 NRC 98, 106 (1992). 

A satisfactory explanation for failure to file on time does not automatically warrant 

the acceptance of a late-filed intervention petition. The additional factors 

specified under 10 C.F.R. § 2.309(c) must also be considered. However, where 

a late filing of an intervention petition has been satisfactorily explained, a much 

smaller demonstration with regard to the other factors of 10 C.F.R. § 2.309(c) is 

necessary than would otherwise be the case. Wisconsin Pub. Serv. Corp.

(Kewaunee Nuclear Power Plant), LBP-78-24, 8 NRC 78, 83 (1978). 

10 C.F.R. § 2.309(c) also applies to proffered exhibits, not just contentions: 

essentially, anything offered in support of a petition should be analyzed through 

the § 2.309(c) standards for timeliness. Crow Butte Res., Inc. (North Trend 

Expansion Project), LBP-08-6, 67 NRC 241 (2008). 

The Commission can summarily reject a petition for late intervention that fails to 

address the eight-factor test set forth in 10 C.F.R. § 2.309(c)(1)(i)-(viii) or the 

standing requirements in 10 C.F.R. § 2.309(d)(1) (formerly § 2.714(d)(1)). Texas 

Utils. Elec. Co. (Comanche Peak Steam Electric Station, Units 1 & 2), CLI-93-11, 

37 NRC 251, 255 (1993); Carolina Power & Light Co. (Shearon Harris Nuclear 

Power Plant), LBP-00-12, 51 NRC 247, 281-282 (2000). See also Fla. Power & 

Light Co., FPL Energy Seabrook, LLC, FPL Energy Duane Arnold, LLC, 

Constellation Energy Group, Inc. (Calvert Cliffs Nuclear Plant, Units 1 & 2; 

Calvert Cliffs Independent Spent Fuel Storage Installation; Nine Mile Point 

Nuclear Station, Units 1 & 2; R.E. Ginna Nuclear Power Plant; Turkey Point 

Nuclear Generating Plants, Units 3 & 4; St. Lucie Nuclear Power Plant, Units 1 

& 2; Seabrook Station; Duane Arnold Energy Center), CLI-06-21, 64 NRC 30, 

JUNE 2011 PREHEARING MATTERS 25
33-34 (2006) (failure to comply with pleading requirements for late filings 

constitutes sufficient grounds for rejecting intervention and hearing requests). 

A petitioner whose late-filed petition to intervene has met the [eight]-part test of 

10 C.F.R. § 2.309 (c)(1) need not meet any further late-filing qualifications to 

have its contentions admitted. It is not to be treated differently than a petitioner 

whose petition to intervene was timely filed. Washington Public Power Supply 

System (WPPSS Nuclear Project No. 3), LBP-84-17A, 19 NRC 1011, 1015 

(1984). 

The burden of proof is on the petitioner. Private Fuel Storage, L.L.C.

(Independent Spent Fuel Storage Installation), LBP-00-16, 51 NRC 320, 325 

(2000). Thus, a person who files an untimely intervention petition must 

affirmatively address the [eight] lateness factors in his petition, regardless of 

whether any other parties in the proceeding raise the tardiness issue. Even if the 

other parties waive the tardiness of the petition, a Board, on its own initiative, will 

review the petition and weigh the [eight] lateness factors. Boston Edison Co.

(Pilgrim Nuclear Power Station), ALAB-816, 22 NRC 461, 466 n.22 (1985). 

A late petitioner’s obligation to affirmatively address the [eight] lateness factors is 

not affected by the extent of the tardiness. However, the length of the delay, 

whether measured in days or years, may influence a Board’s assessment of the 

lateness factors. Pilgrim, supra, ALAB-816, 22 NRC at 468 n.27. 

A late petitioner who fails to address the [eight] lateness factors in his petition 

does not have a right to a second opportunity to make a substantial showing on 

the lateness factors. However, a Board, as a matter of discretion, may give a 

late petitioner such an opportunity. Pilgrim, ALAB-816, supra, 22 NRC at 468. 

A late intervenor may be required to take the proceeding as it finds it. Long 

Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-743, 

18 NRC 387, 402 (1983), citing Nuclear Fuel Servs. Inc. (West Valley 

Reprocessing Plant), CLI-75-4, 1 NRC 273, 276 (1975). Licensing Boards have 

very broad discretion in their approach to the balancing process required under 

10 C.F.R. § 2.309(c) (formerly § 2.714(a)). Virginia Elec. & Power Co. (North 

Anna Power Station, Units 1 & 2), ALAB-342, 4 NRC 98 (1976). Given this wide 

latitude with regard to untimely petitions to intervene, a Licensing Board has the 

discretion to permit intervention, even though an acceptable excuse for the 

untimely filing is not forthcoming, if other considerations warrant its doing so. 

Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Unit 2), ALAB-420, 

6 NRC 8, 22 (1977). 

A Licensing Board has no latitude to admit a new party, i.e., an “eleventh hour” 

intervenor, to a proceeding as the hearing date approaches in circumstances 

where: (1) the extreme tardiness in seeking intervention is unjustified; (2) the 

certain or likely consequence would be prejudice to other parties as well as 

delaying the progress of the proceeding, particularly attributable to the 

broadening of issues; and (3) the substantiality of the contribution to the 

development of the record which might be made by that party is problematic. 

South Carolina Elec. & Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), 

ALAB-643, 13 NRC 898, 900 (1981). See also Florida Power & Light Co.

PREHEARING MATTERS 26 JUNE 2011
(Turkey Point Nuclear Generating Plant, Units 3 & 4), LBP-90-5, 31 NRC 73, 

82-83 (1990), aff’d, ALAB-950, 33 NRC 492, 495-96 (1991). 

Newly acquired standing by moving to the vicinity of a plant is not alone enough 

to justify belated intervention. Nor does being articulate show a contribution can 

be made in developing the record. Other parties having the same interest weigh 

against allowing late intervention. Houston Lighting & Power Co. (Allens Creek 

Nuclear Generating Station, Unit 1), ALAB-582, 11 NRC 239, 241 (1980). 

The key policy consideration for barring late intervenors is one of fairness, viz., 

“the public interest in the timely and orderly conduct of our proceedings.” 

Houston Lighting & Power Co. (South Texas Project, Units 1 & 2), ALAB-549, 

9 NRC 644, 648-649 (1979), citing Nuclear Fuel Servs. Inc., (West Valley 

Reprocessing Plant), CLI-75-4, 1 NRC 273, 275 (1975). 

Non-parties, participating under 10 C.F.R. § 2.315(c) (formerly § 2.715(c)), need 

not comply with the requirements of 10 C.F.R. § 2.309(c) (formerly § 2.714(a)) 

that mandate that intervenors either file their contentions in a timely fashion or 

show cause for their late intervention. Cleveland Elec. Illuminating Co. (Perry 

Nuclear Power Plant, Units 1 & 2), LBP-81-35, 14 NRC 682, 688 (1981). 

While the late filing of documents is not condoned, a petitioner acting pro se is 

not always expected to meet the same high standards to which the Commission 

holds entities represented by lawyers. Int’l Uranium (USA) Corp. (White Mesa 

Uranium Mill), LBP-01-8, 53 NRC 204, 207-208 (2001). See also Entergy 

Nuclear Vermont Yankee, LLC, & Entergy Nuclear Operations, Inc. (Vermont 

Yankee Nuclear Power Station), LBP-06-14, 63 NRC 568, 581 (2006); 

Tennessee Valley Auth. (Bellefonte Nuclear Power Plant, Units 3 & 4), 

LBP-08-16, 68 NRC 361, 381-82 (2008) (interpreting ambiguous language in 

notice of filing date for hearing request in favor of pro se participant, in order to 

avoid denying petition on the grounds of tardiness). 

Until the parties to a proceeding that oppose a late intervention petition suggest 

another forum that appears to promise a full hearing on the claims petitioner 

seeks to raise, a petitioner need not identify and particularize other remedies as 

inadequate. Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), 

ALAB-707, 16 NRC 1760, 1767 n.6 (1982). 

A Commission direction to the presiding officer to consider the admissibility of a 

particular late-filed matter does not preclude the presiding officer from giving the 

same consideration to other late-filed information submitted by a petitioner 

relevant to that matter. Cf. Carolina Power & Light Co. (Shearon Harris Nuclear 

Power Plant, Units 1–4), ALAB-526, 9 NRC 122, 124 (1979) (in remand 

proceeding on management capability issue, additional petitioners’ attempt to 

seek late intervention to participate on that issue must be assessed under lateintervention criteria). Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), 

LBP-96-15, 44 NRC 8, 24 (1996). 

A party who was dismissed from a proceeding for failing to respond, without good 

cause, to Board orders reactivating the proceeding, must satisfy the criteria for 

JUNE 2011 PREHEARING MATTERS 27
untimely petitions to intervene in order to be readmitted. General Elec. Co.

(GETR Vallecitos), LBP-84-54, 20 NRC 1637, 1642-1643 (1984). 

[Note: Section 2.309 requires that the petition to intervene or request for hearing 

include a specification of the contentions that the petitioner proposes for 

litigation. This differs from the former provisions of Part 2 that permitted a 

petitioner to file a supplement to his or her petition to intervene with a list of 

contentions which the petitioner sought to have litigated in the hearing. The new 

practice of requiring contentions to be filed at time of the petition/request does 

not obviate the concept of late-filed contentions discussed in Section 2.10.5.5.] 

2.10.3.3.3.A Factor #1 – Good Cause for Late Filing 

Good cause for the petitioner’s late filing is the first, and most important 

element of 10 C.F.R. § 2.309(c)(1) (formerly § 2.714(a)(1)). Private Fuel 

Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-00-02, 

51 NRC 77, 79 (2000); Dominion Nuclear Connecticut, Inc. (Millstone Nuclear 

Power Station, Units 2 & 3), CLI-05-24, 62 NRC 551, 564 (2005); Pacific Gas 

& Elec. Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage 

Installation), CLI-08-01, 67 NRC 1 (2008); Cincinnati Gas and Electric Co.

(William H. Zimmer Nuclear Power Station), ALAB-595, 11 NRC 860, 862 

(1980). See also Private Fuel Storage, L.L.C., LBP-99-3, 49 NRC 40, 49 

(1999) (good cause is first and principal test for late intervention). 

It has been held that even if a petitioner fails to establish good cause for the 

untimely petition, the other factors must be examined, Long Island Lighting 

Co. (Jamesport Nuclear Power Station, Units 1 & 2), ALAB-292, 2 NRC 631 

(1975), although the burden of justifying intervention on the basis of the other 

factors is considered to be greater when the petitioner fails to show good 

cause. Nuclear Fuel Servs., Inc. (West Valley Reprocessing Plant), CLI-75-4, 

1 NRC 273 (1975); USERDA (Clinch River Breeder Reactor Plant), 

ALAB-354, 4 NRC 383 (1976); Virginia Elec. & Power Co. (North Anna 

Station, Units 1 & 2), ALAB-289, 1 NRC 395, 398 (1975); Philadelphia Elec.

Co. (Limerick Generating Station, Unit 1), LBP-86-9, 23 NRC 273, 279 (1986); 

Northeast Nuclear Energy Co. (Millstone Nuclear Power Station, Unit 2), 

LBP-92-26, 36 NRC 191 (1992). 

In evaluating intervention petitions to determine whether the requisite 

specificity exists, whether there has been an adequate delineation of the basis 

for the contentions, and whether the issues sought to be raised are cognizable 

in an individual licensing proceeding, Licensing Boards will not appraise the 

merits of any of the assertions contained in the petition. But when considering 

untimely petitions, Licensing Boards are required to assess whether the 

petitioner has made a substantial showing of good cause for failure to file on 

time. In doing so, Boards must necessarily consider the merits of claims 

going to that issue. Florida Power & Light Co. (St. Lucie Plant, Unit 2), 

CLI-78-12, 7 NRC 939, 948-949 (1978). 

In considering the “good cause” factor, the Appeal Board pointed out that a 

strong excuse for lateness will attenuate the showing necessary on the other 

factors of 10 C.F.R. § 2.309(c). Puget Sound Power & Light Co. (Skagit 

PREHEARING MATTERS 28 JUNE 2011
Nuclear Power Project, Units 1 & 2), ALAB-523, 9 NRC 58, 63 (1979). See 

also Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Unit No. 2), 

ALAB-420, 6 NRC 8, 22 (1977), aff’d, CLI-78-12, 7 NRC 939 (1978). 

In addressing the good-cause factor, a petitioner must explain not only why it 

failed to file within the time required, but also why it did not file as soon 

thereafter as possible. Westinghouse Elec. Corp. (Nuclear Fuel Export 

License for Czech Republic – Temelin Nuclear Power Plants), CLI-94-7, 

39 NRC 322 (1994). Lacking a demonstration of “good cause” for lateness, a 

petitioner is bound to make a compelling showing that the remaining factors 

nevertheless weigh in favor of granting the late intervention and hearing 

request. 39 NRC at 329. 

The burden of showing good cause is on the late petitioner. Detroit Edison 

Co. (Enrico Fermi Atomic Power Plant, Unit 2), LBP-82-96, 16 NRC 1408, 

1432 (1982). 

Although a concrete definition as to what constitutes “good cause” has not 

been established, certain excuses for delay have been held to be insufficient 

to justify late filing. For example, in Boston Edison Co. (Pilgrim Nuclear Power 

Station, Unit 2), LBP-74-63, 8 AEC 330 (1974), aff’d, ALAB-238, 8 AEC 656 

(1974), it was held that neither the fact that the corporate citizens’ group 

seeking to intervene was not chartered prior to the cutoff date for filing, nor the 

fact that the applicant changed its application by dropping one of the two units 

it intended to build, gave good cause for late filing. Similarly, claims by a 

petitioner that there was a “press blackout” and that he was unaware of the 

Commission's rules requiring timely intervention will not excuse an untimely 

petition for leave to intervene. Tennessee Valley Auth. (Browns Ferry Nuclear 

Plant, Units 1 & 2), ALAB-341, 4 NRC 95 (1976), nor will failure to read the 

Federal Register. South Carolina Elec. & Gas Co. (Virgil C. Summer Nuclear 

Station, Unit 1), LBP-81-11, 13 NRC 420, 423 (1981), citing New England 

Power & Light Co. (NEP Units 1 & 2), LBP-78-18, 7 NRC 932, 933-934 

(1978); Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, 

Units 3 & 4), LBP-90-5, 31 NRC 73, 79 (1990), aff’d, ALAB-950, 33 NRC 492, 

495-96 (1991). Similarly a petitioner’s failure to read carefully the governing 

procedural regulations does not constitute good cause for accepting a latefiled petition. North Atlantic Energy Service Corp. (Seabrook Station, Unit 1), 

CLI-99-6, 49 NRC 201, 223 (1999). See also Fla. Power & Light Co., FPL 

Energy Seabrook, LLC, FPL Energy Duane Arnold, LLC, Constellation Energy 

Group, Inc. (Calvert Cliffs Nuclear Plant, Units 1 & 2; Calvert Cliffs 

Independent Spent Fuel Storage Installation; Nine Mile Point Nuclear Station, 

Units 1 & 2; R.E. Ginna Nuclear Power Plant; Turkey Point Nuclear 

Generating Plants, Units 3 & 4; St. Lucie Nuclear Power Plant, Units 1 & 2; 

Seabrook Station; Duane Arnold Energy Center), CLI-06-21, 64 NRC 30, 33 

(2006) (late-filed because petitioner initially believed another agency was the 

appropriate forum). The showing of good cause is required even though a 

petitioner seeks to substitute itself for another party. Gulf States Utils. Co.

(River Bend Station, Units 1 & 2), ALAB-444, 6 NRC 760, 796 (1977). 

Licensing Boards and Appeal Boards have both considered various excuses 

to determine whether they constitute “good cause.” Newly acquired 

JUNE 2011 PREHEARING MATTERS 29
organizational existence does not constitute good cause for delay in seeking 

intervention. Carolina Power & Light Co. (Shearon Harris Nuclear Power 

Plant, Units 1–4), ALAB-526, 9 NRC 122, 124 (1979), cited in Cincinnati Gas 

& Elec. Co. (William H. Zimmer Nuclear Station), LBP-80-14, 11 NRC 570 

(1980) and South Carolina Elec. & Gas Co. (Virgil C. Summer Nuclear Station, 

Unit 1), LBP-81-11, 13 NRC 420, 423 (1981); and Kansas Gas & Elec. Co.

(Wolf Creek Generating Station, Unit 1), LBP-84-17, 19 NRC 878, 887 (1984); 

Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 

& 4), LBP-90-5, 31 NRC 73, 80-81 (1990), aff’d, ALAB-950, 33 NRC 492, 

495-96 (1991). Nor does preoccupation with other matters afford a basis for 

excusing a nontimely petition to intervene. Poor judgment or imprudence is 

not good cause for late filing. Puget Sound Power & Light Co. (Skagit Nuclear 

Power Project, Units 1 & 2), LBP-79-16, 9 NRC 711, 714 (1979). The Appeal 

Board did not accept as an excuse for late intervention the claim that 

petitioner, a college organization, could not meet an August petition deadline 

because most of its members were away from school during the summer and 

hence unaware of developments in the case. Such a consideration does not 

relieve an organization from making the necessary arrangements to ensure 

that its interest is protected in its members’ absence. 

On the other hand, new regulatory developments and the availability of new 

information may constitute good cause for delay in seeking intervention. Duke 

Power Co. (Amendment to Materials License SNM-1773 – Transportation of 

Spent Fuel from Oconee Nuclear Station for Storage at McGuire Nuclear 

Station), ALAB-528, 9 NRC 146, 148-149 (1979). See also Cincinnati Gas &

Elec. Co. (William H. Zimmer Nuclear Station), LBP-80-14, 11 NRC 570, 

572-573 (1980). 

The availability of new information may provide good cause for late 

intervention. The test is when the information became available and when the 

petitioner reasonably should have become aware of the information. The 

petitioner must establish that (1) the information is new and could not have 

been presented earlier, and (2) the petitioner acted promptly after learning of 

the new information. Texas Utils. Elec. Co. (Comanche Peak Steam Electric 

Station, Units 1 & 2), CLI-92-12, 36 NRC 62, 69-73(1992). See Texas Utils.

Elec. Co. (Comanche Peak Steam Electric Station, Unit 2), CLI-93-4, 

37 NRC 156, 164-65 (1993); Amergen Energy Co., LLC (Oyster Creek 

Nuclear Generating Station), LBP-06-22, 64 NRC 229, 234 (2006); Crow Butte 

Res., Inc. (North Trend Expansion Project), LBP-08-6, 67 NRC 241 (2008). 

Newly arising information has long been recognized as providing “good cause” 

for acceptance of a late contention. Consumers Power Co. (Midland Plant, 

Units 1 & 2), LBP-82-63, 16 NRC 571, 577 (1982), citing Indiana & Michigan 

Elec. Co. (Donald C. Cook Nuclear Plant, Units 1 & 2), CLI-72-75, 5 AEC 13, 

14 (1972); Cincinnati Gas & Elec. Co. (William H. Zimmer Nuclear Station), 

LBP-80-14, 11 NRC 570, 574 (1980), appeal dismissed, ALAB-595, 

11 NRC 860 (1980). Before admitting a contention based on new information, 

factors must be balanced such as the intervenor’s ability to contribute to the 

record on the contention and the likelihood and effects of delay should the 

contention be admitted. However, in balancing those factors, the same weight 

given to each of them is not required. Consumers Power Co. (Midland Plant, 

PREHEARING MATTERS 30 JUNE 2011
Units 1 & 2), LBP-82-63, 16 NRC 571, 577 (1982), citing South Carolina Elec.

& Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-642, 

13 NRC 881, 895 (1981). 

The Licensing Board will not accept a petitioner’s claim of excuse for late 

intervention where the petitioner failed to uncover and apply publicly available 

information in a timely manner. Kansas Gas & Elec. Co. (Wolf Creek 

Generating Station, Unit 1), LBP-84-17, 19 NRC 878, 886 (1984), citing Long 

Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-42, 

18 NRC 112, 117, aff’d, ALAB-743, 18 NRC 38i (1983); Florida Power & Light 

Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), LBP-90-5, 

31 NRC 73, 79 (1990), aff’d, ALAB-950, 33 NRC 492, 495-96 (1991). 

Confusing and misleading letters from the Staff to a prospective pro se

petitioner for intervention, and failure of the Staff to respond in a timely fashion 

to certain communications from such a petitioner, constitute a strong showing 

of good cause for an untimely petition. Wisconsin Pub. Serv. Corp.

(Kewaunee Nuclear Power Plant), LBP-78-24, 8 NRC 78, 81-82 (1978). And 

where petitioner relied to its detriment on Staff’s representations that no action 

would be immediately taken on licensee’s application for renewal, elementary 

fairness requires that the action of the Staff could be asserted as an estoppel 

on the issue of timeliness of petition to intervene, and the petition must be 

considered even after the license has been issued. Armed Forces 

Radiobiology Research Inst. (Cobalt-60 Storage Facility), LBP-82-24, 

15 NRC 652, 658 (1982), rev’d on other grounds, ALAB-682, 16 NRC 150 

(1982). 

Petitioners proceeding pro se will be shown greater leeway on the question of 

whether they have demonstrated good cause for lateness than petitioners 

represented by counsel. Maine Yankee Atomic Power Co. (Maine Yankee 

Atomic Power Station), LBP-03-23, 58 NRC 372, 378 (2003). 

A petitioner’s claim that it was lulled into inaction because it relied upon the 

state, which later withdrew, to represent its interests does not constitute good 

cause for an untimely petition. Gulf States Utilities Co. (River Bend Station, 

Units 1 & 2), ALAB-444, 6 NRC 760, 796 (1977). See Texas Utilities Electric 

Co. (Comanche Peak Steam Electric Station, Units 1 & 2), CLI-88-12, 

28 NRC 605, 609 (1988), reconsid. denied on other grounds, CLI-89-6, 

29 NRC 348 (1989), aff’d sub nom., Citizens for Fair Util. Regulation v. NRC, 

898 F.2d 51 (5th Cir. 1990). A petitioner who has relied upon a state 

participating pursuant to 10 C.F.R. § 2.315(c) (formerly § 2.715(c)) to 

represent her interests in a proceeding cannot rely on her dissatisfaction with 

the state’s performance as a valid excuse for a late-filed intervention petition 

where no claim is made that the state undertook to represent her interests 

specifically, as opposed to the public interest generally. Duke Power Co.

(Cherokee Nuclear Station, Units 1, 2, & 3), ALAB-440, 6 NRC 642 (1977). 

See also South Carolina Elec. & Gas Co. (Virgil C. Summer Nuclear Station, 

Unit 1), LBP-81-11, 13 NRC 420, 423 (1981); Comanche Peak, supra, 

28 NRC at 610 (a petitioner’s previous reliance on another party to assert its 

interests does not by itself constitute good cause), reconsid. denied on other 

grounds, CLI-89-6, 29 NRC 348 (1989), aff’d sub nom., Citizens for Fair Util.

JUNE 2011 PREHEARING MATTERS 31
Regulation v. NRC, 898 F.2d 51, 55 (5th Cir. 1990); Florida Power & Light Co.

(Turkey Point Nuclear Generating Plant, Units 3 & 4), LBP-90-5, 31 NRC 73, 

80 (1990), aff’d, ALAB-950, 33 NRC 492, 49596 (1991). Nor will an 

explanation that full-time domestic and other responsibilities was the reason 

for filing an intervention petition almost three years late suffice. Cherokee, 

supra. 

Just as a petitioner may not rely upon interests being represented by another 

party and then justify an untimely petition to intervene on the others’ 

withdrawal, so a petitioner may not rely on the pendency of another 

proceeding to protect its interests and then justify a late petition on that 

reliance when the other petition fails to represent those interests. A claim that 

petitioner believed that its concerns would be addressed in another 

proceeding will not be considered good cause. Consolidated Edison Co.

(Indian Point Nuclear Generating Unit 2), LBP-82-1, 15 NRC 37, 39-40 (1982); 

Arizona Pub. Serv. Co. (Palo Verde Nuclear Generating Station, Units 1, 

2, & 3), LBP-82-117B, 16 NRC 2024, 2027 (1982). It must be established that 

petitioners were furnished erroneous information on matters of basic fact and 

that it was reliance upon that information that prompted their own inaction. Id.

at 2027-2028. 

Employees of an applicant or licensee are not exempt from the Commission’s 

procedural rules. Thus, an employee’s mere assertions of fears of retaliation 

from the employer do not establish good cause for late intervention. To 

encourage employees to raise potentially significant safety concerns or 

information, Section 211 of the Energy Reorganization Act, 

42 U.S.C. § 5851(a), prohibits employer retaliation against any employee who 

commences or participates in any manner in an NRC proceeding. Florida 

Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), 

LBP-90-5, 31 NRC 73, 77-79 (1990), aff’d, ALAB-950, 33 NRC 492, 495-96 

(1991). 

Absent a showing of good cause for a very late filing, an intervention petitioner 

must make a “compelling showing” on the other factors stated in 

10 C.F.R. § 2.309(c) (formerly § 2.714(a)) governing late intervention. 

Mississippi Power & Light Co. (Grand Gulf Nuclear Station, Units 1 & 2), 

ALAB-704, 16 NRC 1725, 1730 (1982), citing South Carolina Elec. & Gas Co.

(Virgil C. Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881, 894 

(1981), aff’d sub nom. Fairfield United Action v. NRC, 679 F.2d 261 

(D.C. Cir. 1982); Ohio Edison Co. (Perry Nuclear Power Plant, Unit 1) and 

Cleveland Elec. Illuminating Co. & Toledo Edison Co. (Perry Nuclear Power 

Plant, Unit 1; Davis-Besse Nuclear Power Station, Unit 1), LBP-91-38, 34 

NRC 229, 246-47 (1991), aff’d in part on other grounds and appeal denied, 

CLI-92-11, 36 NRC 47 (1992); Texas Utils. Elec. Co. (Comanche Peak Steam 

Electric Station, Units 1 & 2), CLI-92-12, 36 NRC 62, 73-75 (1992). See also

Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-707, 

16 NRC 1760, 1764 (1982), citing Grand Gulf, supra, 16 NRC at 1730; Long 

Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB 743, 

18 NRC 387, 397 (1983); General Electric Co. (GETR Vallecitos), LBP-84-54, 

20 NRC 1637, 1645 (1984); Sacramento Mun. Util. Dist. (Rancho Seco 

Nuclear Generating Station), LBP-93-23, 38 NRC 200, 207 (1993); State of 

PREHEARING MATTERS 32 JUNE 2011
New Jersey (Department of Law and Public Safety's Requests Dated 

Oct. 8, 1993), CLI-93-25, 38 NRC 289, 296-97 (1993); Private Fuel Storage, 

L.L.C. (Independent Spent Fuel Storage Installation), LBP-00-8, 51 NRC 146, 

154 (2000); Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage 

Installation), LBP-00-14, 51 NRC 301, 310 (2000). 

A petitioner who fails to show good cause for filing late may not always be 

required to make a compelling showing on the seven remaining factors of 

10 C.F.R. § 2.309(c). Ohio Edison Co. (Perry Nuclear Power Plant, Unit 1) 

and Cleveland Elec. Illuminating Co. & Toledo Edison Co. (Perry Nuclear 

Power Plant, Unit 1; Davis-Besse Nuclear Power Station, Unit 1), LBP-92-19, 

36 NRC 98, 105-106 (1992). 

The “good cause” element of 10 C.F.R. § 2.309(c)(1) (formerly § 2.714(a)(1)) 

was deemed fulfilled when the counsel for the intervening party demonstrated 

by a careful accounting of her schedule that she submitted the pleading in 

question within a reasonable amount of time. The Licensing Board particularly 

noted the late date on which the Staff provided the intervenors with needed 

documents, and the busy schedule of counsel. Carolina Power & Light Co.

(Shearon Harris Nuclear Power Plant), LBP-00-19, 52 NRC 85, 92 (2000). 

A local government trying to show good cause for late filing an intervention 

petition cannot successfully argue that it had no constructive notice of the 

proposed license transfers at issue, where its legislature had already 

demonstrated through legislative action that it had early actual notice of the 

proposed transfer. Dominion Nuclear Connecticut, Inc. (Millstone Nuclear 

Power Station, Units 2 & 3), LBP-05-16, 62 NRC 56, 65 (2005). 

“Good cause” cannot be shown when the late-filed contention is essentially 

identical to a contention that was already rejected. Pacific Gas & Elec. Co.

(Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), 

CLI-08-8, 67 NRC 193 (2008). 

2.10.3.3.3.B Factor #2 – Nature of the Requestor’s/Petitioner’s Right Under 

the Act to Be Made a Party to the Proceeding 

(RESERVED) 

2.10.3.3.3.C Factor #3 – Nature and Extent of the Requestor’s/Petitioner’s 

Property, Financial or Other Interest in the Proceeding 

(RESERVED) 

2.10.3.3.3.D Factor #4 – Possible Effect of Any Order that May Be Entered 

in the Proceeding on the Requestor’s/Petitioner’s Interest 

(RESERVED) 

2.10.3.3.3.E Factor #5 – Other Means for Protecting Petitioner’s Interests 

With regard to the fifth factor – other means to protect petitioner's interest – 

the question is not whether other parties will adequately protect the interest of 

JUNE 2011 PREHEARING MATTERS 33
the petitioner, but whether there are other available means whereby the 

petitioner can itself protect its interest. Long Island Lighting Co. (Jamesport 

Nuclear Power Station, Units 1 & 2), ALAB-292, 2 NRC 631 (1975). 

The fifth factor in 10 C.F.R. § 2.309(c) points away from allowing late 

intervention if the interest which the petitioner asserts can be protected by 

some means other than litigation. Detroit Edison Co. (Enrico Fermi Atomic 

Power Plant, Unit 2), LBP-82-96, 16 NRC 1408, 1433 (1982). 

The fifth factor in 10 C.F.R. § 2.309(c)(1) (formerly § 2.714(a)(1)), whether 

other means exist to protect the petitioner’s interests, was not satisfied when 

the petitioner was able to take his concerns to a state judicial forum and was 

able to voice his concerns in a separate NRC licensing proceeding. Private 

Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-00-

23, 52 NRC 114, 121-122 (2000). 

The suggestion that an organization could adequately protect its interest by 

submitting a limited appearance statement gives insufficient regard to the 

value of participational rights enjoyed by parties – including the entitlement to 

present evidence and to engage in cross-examination. Similarly, assertions 

that the organization might adequately protect its interest by making witnesses 

available to a successful petitioner or by transmitting information in its 

possession to appropriate state and local officials are without merit. Duke 

Power Co. (Amendment to Materials License SNM-1773 – Transportation of 

Spent Fuel from Oconee Nuclear Station for Storage at McGuire Nuclear 

Station), ALAB-528, 9 NRC 146, 150 n.7 (1979). 

A petition under 10 C.F.R. § 2.206 for a show cause proceeding is not an 

adequate alternative means of protecting a late petitioner’s interests. The 

Section 2.206 remedy cannot substitute for the petitioner’s participation in an 

adjudicatory proceeding concerned with the grant or denial ab initio of an 

application for an operating license. Washington Pub.Power Supply Sys.

(WPPSS Nuclear Project No. 3), ALAB-747, 18 NRC 1167, 1175-1176 (1983). 

See Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, 

Units 3 & 4), LBP-90-5, 31 NRC 73, 81 (1990), aff’d, ALAB-950, 33 NRC 492, 

495-96 (1991). After all, despite the long history of § 2.206, the number of 

successful petitions brought under that section is extremely small. Dominion 

Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3), 

LBP-05-16, 62 NRC 56, 67 (2005). 

Participation of the NRC Staff in a licensing proceeding is not equivalent to 

participation by a private intervenor. Washington Publ. Power Supply System 

(WPPSS Nuclear Project No. 3), ALAB-747, 18 NRC 1167 (1983). By 

analogy, the availability of non-adjudicatory Staff review outside the hearing 

process generally does not constitute adequate protection of a private party’s 

rights when considering factor [five] under 10 C.F.R. § 2.309(c) (formerly 

§ 2.714(a)). Houston Lighting & Power Co. (South Texas Project, Units 1 

& 2), ALAB-799, 21 NRC 360, 384 n.108 (1985). But see Philadelphia Electric 

Co. (Limerick Generating Station, Units 1 & 2), ALAB-828, 23 NRC 13, 21-22 

(1986). 

PREHEARING MATTERS 34 JUNE 2011
2.10.3.3.3.F Factor #6 – Extent Petitioner’s Interests Will Be Represented 

by Existing Parties 

With regard to the [sixth] factor of 10 C.F.R. § 2.309(c) (formerly § 2.714(a)), 

the extent to which petitioner’s interest will be represented by existing parties, 

the fact that a successful petitioner has advanced a contention concededly 

akin to that of a late petitioner does not necessarily mean that the successful 

petitioner is both willing and able to represent the late petitioner’s interest. 

Duke Power Co. (Amendment to Materials License SNM-1773 – 

Transportation of Spent Fuel from Oconee Nuclear Station for Storage at 

McGuire Nuclear Station), ALAB-528, 9 NRC 146, 150 (1979). See Ohio 

Edison Co. (Perry Nuclear Power Plant, Unit 1) and Cleveland Elec.

Illuminating Co. & Toledo Edison Co. (Perry Nuclear Power Plant, Unit 1; 

Davis-Besse Nuclear Power Station, Unit 1), LBP-92-19, 36 NRC 98, 109 

(1992). 

The Licensing Board in Florida Power & Light Co. (Turkey Point Nuclear 

Generating Units 3 & 4), LBP-79-21, 10 NRC 183, 195 (1979) has expressed 

the view that NRC practice has failed to provide a clear cut answer to the 

question of whether the [sixth] factor, the extent to which the petitioner’s 

interest will be represented by existing parties, is applicable when there are no 

intervening parties and no petitioners other than the latecomer, and a hearing 

will not be held if the late petitioner is denied leave to intervene. The Licensing 

Board reviewed past Licensing Board decisions on this question: 

(1) In St. Lucie and Turkey Point the Licensing Board decided that the 

[sixth] factor was not directly applicable, noting that without the 

petitioner’s admission there would be no other party to protect 

petitioner’s interest. Florida Power & Light Co. (St. Lucie Plant, 

Units 1 & 2 and Turkey Point, Units 3 & 4), LBP-77-23, 

5 NRC 789, 800 (1977). 

 (2) In Summer the Licensing Board acknowledged uncertainty as to 

 the applicability of factor [six], but indicated that if the factor were 

 applicable it would be given no weight because of the particular 

 circumstances of that case. South Carolina Elec. & Gas Co.

 (Virgil C. Summer Nuclear Station, Unit 1), LBP-78-6, 7 NRC 209, 

 213-214 (1978). 

 (3) In Kewaunee, the Board concluded that petitioners’ interest would 

 not be represented absent a hearing and decided that the [sixth] 

 factor weighed in favor of admitting them as intervenors. 

 Wisconsin Pub. Serv. Corp. (Kewaunee Nuclear Power Plant), 

 LBP-78-24, 8 NRC 78, 84 (1978). 

The Licensing Board ultimately ruled that the Commission intended that all 

[eight] factors of 10 C.F.R. § 2.309(c) (formerly § 2.714(a)) should be 

balanced in every case involving an untimely petition. Florida Power & Light 

Co. (Turkey Point Nuclear Generating Units 3 & 4), LBP-79-21, 10 NRC 183, 

195 (1979). The Board also ruled that in the circumstances where denial of a 

late petition would result in no hearing and no parties to protect the petitioner’s 

JUNE 2011 PREHEARING MATTERS 35
interest, the question, “To what extent will Petitioners’ interest be represented 

by existing parties?” must be answered, “None.” The [sixth] factor therefore, 

was held to weigh in favor of the late petitioners. Id.

In balancing the factors in 10 C.F.R. § 2.309(c) (formerly § 2.714(a)), the 

Licensing Board may take into account the petitioner’s governmental nature 

as it affects the extent to which petitioner’s interest will be represented by 

existing parties, although the petitioner’s governmental status in and of itself 

will not excuse untimely petitions to intervene. Pub. Serv. Co. of Indiana

(Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-339, 4 NRC 20 

(1976). 

A local government’s overriding, paramount interest in, and responsibility for, 

emergencies that impact its territory mean that a private party cannot 

“represent” that government’s interest in emergency planning by filing an 

emergency planning contention of its own. Dominion Nuclear Connecticut, 

Inc. (Millstone Nuclear Power Station, Units 2 & 3), LBP-05-16, 62 NRC 56, 

67-68 (2005). 

In weighing the [sixth] factor, a Board will not assume that the interests of a 

late petitioner will be adequately represented by the NRC Staff. The general 

public interest, as interpreted by the Staff, may often conflict with a late 

petitioner’s private interests or perceptions of the public interest. Washington 

Pub. Power Supply Sys. (WPPSS Nuclear Project No. 3), ALAB-747, 

18 NRC 1167, 1174-1175 n.22 (1983). See also Cleveland Elec. Illuminating 

Co. (Perry Nuclear Power Plant, Units 1 & 2), LBP-83-80, 18 NRC 1404, 

1407-1408 (1983); Philadelphia Elec. Co. (Limerick Generating Station, 

Unit 1), LBP-86-9, 23 NRC 273, 279 (1986). Contra Consolidated Edison Co. 

of New York (Indian Point Nuclear Generating Unit 2), LBP-82-1, 15 NRC 37, 

41 (1982). However, the fact that it is likely that no one will represent a 

petitioner’s perspective if its hearing request is denied is in itself insufficient for 

the Commission to excuse the untimeliness of the request. Westinghouse 

Elec. Corp. (Nuclear Fuel Export License for Czech Republic – Temelin 

Nuclear Power Plants), CLI-94-7, 39 NRC 322, 329 (1994). 

2.10.3.3.3.G Factor #7 – Extent Participation Will Broaden Issues or Delay 

the Proceeding 

The seventh factor of 10 C.F.R. § 2.309(c)(1), potential for delay, is also of 

immense importance in the overall balancing process. Long Island Lighting 

Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-743, 18 NRC 387, 402 

(1983). While this factor is particularly significant, it is not dispositive. 

USERDA (Clinch River Breeder Reactor Plant), ALAB-354, 4 NRC 383 

(1976). In considering the factor of delay, the magnitude of threatened delay 

must be weighed since not every delay is intolerable. Pub. Serv. Elec. & Gas 

Co. (Hope Creek Generating Station, Units 1 & 2), LBP-77-9, 5 NRC 474 

(1977). In addition, in deciding whether petitioners’ participation would 

broaden the issues or delay the proceeding, it is proper for the Licensing 

Board to consider that the petitioners agreed to allow issuance of the 

construction permit before their antitrust contentions were heard, thereby 

eliminating any need to hold up plant construction pending resolution of those 

PREHEARING MATTERS 36 JUNE 2011
contentions. Florida Power & Light Co. (St. Lucie Nuclear Power Plant, 

Unit 2), ALAB-420, 6 NRC 8, 23 (1977). 

An untimely intervention petition need not introduce an entirely new subject 

matter in order to “broaden the issues” for the purposes of 

10 C.F.R. § 2.309(c); expansion of issues already admitted to the proceeding 

also qualifies. South Carolina Elec. & Gas Co. (Virgil C. Summer Nuclear 

Station, Unit 1), ALAB-642, 13 NRC 881, 891 (1981). 

The mere fact that a late petitioner will not cause additional delay or a 

broadening of the issue does not mean that an untimely petition should 

necessarily be granted. Gulf States Utils. Co. (River Bend Station, Units 1 

& 2), ALAB-444, 6 NRC 760, 798 (1977). However, from the standpoint of 

precluding intervention, the delay factor is extremely important and the later 

the petition to intervene, the more likely it is that the petitioner’s participation 

will result in delay. Detroit Edison Co. (Greenwood Energy Center, Units 2 

& 3), ALAB-476, 7 NRC 759, 762 (1978). The question is whether, by filing 

late, the petitioner has occasioned a potential for delay in the completion of 

the proceeding that would not have been present had the filing been timely. 

Washington Pub. Power Supply Sys. (WPPSS Nuclear Project No. 3), 

ALAB-747, 18 NRC 1167, 1180 (1983). 

In the instance of a very late petition, the strength or weakness of the 

tendered justification may thus prove crucial. The greater the tardiness, the 

greater the likelihood that the addition of a new party will delay the proceeding 

– e.g., by occasioning the relitigation of issues already tried. Although the 

delay factor may not be conclusive, it is an especially weighty one. Project 

Mgmt. Corp. (Clinch River Breeder Reactor Plant), ALAB-354, 4 NRC 383, 

394-95 (1976); Puget Sound Power & Light Co. (Skagit Nuclear Power 

Project, Units 1 & 2), ALAB-552, 10 NRC 1, 5 (1979). 

The [seventh] factor includes only that delay which can be attributed directly to 

the tardiness of the petition. Long Island Lighting Co. (Jamesport Nuclear 

Power Station, Units 1 & 2), ALAB-292, 2 NRC 631 (1975); South Carolina 

Elec. & Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), LBP-81-11, 

13 NRC 420, 425 (1981). 

Where there is no pending proceeding, the [seventh] factor for late 

intervention, the potential for delay if the petition is granted, weighs heavily 

against petitioner because granting the request will result in the establishment 

of an entirely new formal proceeding, not just the alteration of an already 

established hearing schedule. See Texas Utils. Elec. Co. (Comanche Peak 

Steam Electric Station, Unit 2), CLI-93-4, 37 NRC 156, 167 (1993). 

Holding a hearing on an export license application at a point when the NRC 

has had in its hands for two months the views of the Executive Branch that the 

proposed export would not be inimical to the common defense and security 

would undoubtedly “broaden” the issues and substantially “delay” the 

Commission’s final decision on the fuel export application. Westinghouse 

Elec. Corp. (Nuclear Fuel Export License for Czech Republic – Temelin 

Nuclear Power Plants), CLI-94-7, 39 NRC 322, 330 (1994). 

JUNE 2011 PREHEARING MATTERS 37
Where there is little practical value to be gained from expediting the 

proceeding, the fact that a participant’s participation would “broaden the 

issues” or “delay the proceeding” is less significant. Thus, in a license 

renewal proceeding where the existing license will not expire for over a 

decade and where the Staff’s safety review is still several months from its due 

date for completion, the broadening/delaying factor carried only minimal 

weight. Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, 

Units 2 & 3), LBP-05-16, 62 NRC 56, 68 (2005). 

2.10.3.3.3.H Factor #8 – Ability of Petitioner to Assist in Developing Record 

When assisted by experienced counsel and experts, participation of a 

petitioner may be reasonably expected to contribute to the development of a 

sound record. Pacific Gas & Elec. Co. (Diablo Canyon Power Plant 

Independent Spent Fuel Storage Installation), CLI-08-01, 67 NRC 1, 6 (2008). 

When an intervention petitioner addresses the 10 C.F.R. § 2.309(c)(1)(viii) 

(formerly § 2.714(a)(3)) criterion for late intervention requiring a showing of 

how its participation may reasonably be expected to assist in developing a 

sound record, it should set out with as much particularity as possible the 

precise issues it plans to cover, identify its prospective witnesses, and 

summarize their proposed testimony. See generally South Carolina Elec. &

Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881, 

894 (1981), aff’d sub nom. Fairfield United Action v. NRC, 679 F.2d 261 

(D.C. Cir. 1982); Texas Utils. Elec. Co. (Comanche Peak Steam Electric 

Station, Units 1 & 2), CLI-88-12, 28 NRC 605, 611 (1988), reconsid. denied on 

other grounds, CLI-89-6, 29 NRC 348 (1989), aff’d sub nom., Citizens for Fair 

Util. Regulation v. NRC, 898 F.2d 51 (5th Cir. 1990); Texas Utils. Elec. Co.

(Comanche Peak Steam Electric Station, Units 1 & 2), CLI-92-12, 36 NRC 62, 

74-75 (1992); Texas Utils. Elec. Co. (Comanche Peak Steam Electric Station, 

Unit 2), CLI-93-4, 37 NRC 156, 165-66 (1993). 

It is the petitioner’s ability to contribute sound evidence rather than asserted 

legal skills that is of significance in determining whether the petitioner would 

contribute to the development of a sound record. Kansas Gas & Elec. Co.

(Wolf Creek Generating Station, Unit 1), LBP-84-17, 19 NRC 878, 888 (1984), 

citing Houston Lighting & Power Co. (Allens Creek Nuclear Generating 

Station, Unit 1), ALAB-671, 15 NRC 508, 513 n.14 (1982). 

Vague assertions regarding petitioner’s ability or resources are insufficient. 

Mississippi Power & Light Co. (Grand Gulf Nuclear Station, Units 1 & 2), 

ALAB-704, 16 NRC 1725, 1730 (1982); Detroit Edison Co. (Enrico Fermi 

Atomic Power Plant, Unit 2), ALAB-707, 16 NRC 1760, 1766 (1982), citing

Grand Gulf, supra, 16 NRC at 1730. 

As to the [eight] factor with regard to “assistance in developing the record,” a 

late petitioner placing heavy reliance on this factor and claiming that it has 

substantial technical expertise in this regard should present a bill of particulars 

in support of such a claim. Detroit Edison Co. (Greenwood Energy Center, 

Units 2 & 3), ALAB-476, 7 NRC 759, 764 (1978). At the same time, it is not 

necessary that a petitioner have some specialized education, relevant 

experience or ability to offer qualified experts for a favorable finding on this 

PREHEARING MATTERS 38 JUNE 2011
factor to be made. South Carolina Elec. & Gas Co. (Virgil C. Summer Nuclear 

Station, Unit 1), LBP-78-6, 7 NRC 209, 212-213 (1978). 

The ability to contribute to the development of a sound record is an even more 

important factor in cases where the grant or denial of the petition will also 

decide whether there will be any adjudicatory hearing. There is no reason to 

grant an inexcusably late intervention petition unless there is cause to believe 

that the petitioner not only proposes to raise at least one substantial safety or 

environmental issue, but is also able to make a worthwhile contribution on it. 

Washington Pub. Power Supply Sys. (WPPSS Nuclear Project No. 3), 

ALAB-747, 18 NRC 1167, 1180-1181 (1983). See also Tennessee Valley 

Auth. (Watts Bar Nuclear Plant, Units 1 & 2), ALAB-413, 5 NRC 1418, 1422 

(1977). 

When determining a late-filing petitioner’s ability to assist in developing the 

adjudicatory record, the Board should look at not only the petitioner’s initial 

petition, but also any subsequent filings or oral demonstrations by the 

petitioner indicating a commitment to participate and contribute. Dominion 

Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3), 

LBP-05-16, 62 NRC 56, 68 (2005). 

2.10.3.3.4 Appeals from Rulings on Late Intervention 

Two considerations play key roles in deliberations on appeals from rulings on 

untimely intervention. The first is the Commission’s admonition in Nuclear Fuel 

Services Inc. (West Valley Reprocessing Plant), CLI-75-4, 1 NRC 273, 275 

(1975), that 10 C.F.R. § 2.309(c) (formerly § 2.714(a)) was purposely drafted with 

the idea of “giving the Licensing Boards broad discretion in the circumstances of 

individual cases.” Washington Pub. Power Supply Sys. (WPPSS Nuclear Project 

No. 3), ALAB-747, 18 NRC 1167, 1171 (1983). See also Long Island Lighting 

Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-743, 18 NRC 387, 395-396 

(1983); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), 

ALAB-769, 19 NRC 995, 1000 n.13 (1984). Consequently, a decision granting a 

tardy intervention petition will be reversed only where it can fairly be said that the 

Licensing Board’s action was an abuse of the discretion conferred by 

Section 2.309(c). Mississippi Power & Light Co. (Grand Gulf Nuclear Station, 

Units 1 & 2), ALAB-704, 16 NRC 1725, 1730 (1982); Virginia Elec. & Power Co.

(North Anna Power Station, Units 1 & 2), ALAB-342, 4 NRC 98 (1976). The 

second consideration flows from the principle that the propriety of the Board’s 

action must be measured against the backdrop of the record made by the parties 

before it. Accordingly, on review the facts recounted in the papers supporting the 

petition to intervene must be credited to the extent that they deal with the merits 

of the issues. Insofar as the facts relate to the excuse for untimely filing, where 

they are not controverted by opposing affidavits they must be taken as true. 

Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Unit 2), ALAB-420, 

6 NRC 8, 13 (1977). In view of all of this, the chances of overturning a Licensing 

Board’s finding that intervention, although late, would be valuable are slight. 

See, e.g., Pacific Gas & Elec. Co. (Diablo Canyon Nuclear Plant, Units 1 & 2), 

ALAB-223, 8 AEC 241 (1974). 

JUNE 2011 PREHEARING MATTERS 39
On appeal, factual and legal components of the analysis underlying the Licensing 

Board’s conclusion in reviewing Board decisions on untimely intervention 

petitions may be closely scrutinized. South Carolina Elec. & Gas Co.

(Virgil C. Summer Nuclear Plant, Unit 1), ALAB-642, 13 NRC 881, 885 (1981). 

Until a determination is made that intervenor has proffered a litigable contention, 

a presiding officer’s ruling that the petitioner has established its standing is not so 

final as to be appealable under 10 C.F.R. § 2.311 (formerly § 2.714a). Sequoyah 

Fuels Corp. & Gen. Atomics (Gore, Oklahoma Site Decontamination and 

Decommissioning Funding), LBP-94-5, 39 NRC 54; aff’d, CLI-94-12, 40 NRC 64 

(1994). 

In a decision vacating a Licensing Board’s grant of late intervention because the 

grant was based on improper criteria, the Appeal Board refused to examine 

whether the petitioner had met the regulatory requirements for intervention 

(i.e., 10 C.F.R. § 2.309). Puget Sound Power & Light Co. (Skagit Nuclear Power 

Project, Units 1 & 2), ALAB-523, 9 NRC 58, 63-64 (1979), petition for review 

denied, Puget Sound Power & Light Co. (Skagit Nuclear Project, Units 1 & 2), 

unreported, (Jan. 16, 1980). 

2.10.3.3.5 Mootness of Petitions to Intervene 

Mootness is not necessarily dependent upon a party’s views that its claims have 

been satisfied but, rather, occurs when a justifiable controversy no longer exists. 

Georgia Inst. of Tech. (Georgia Tech Research Reactor), LBP-95-19, 

42 NRC 191, 195 (1995). 

Generally, the plain language of a contention will reveal whether the contention is 

(1) a claim of omission, (2) a specific substantive challenge to an application, or 

(3) a combination of both. In some cases, it may be necessary to examine the 

language of the contention bases to determine the scope of the contention. In 

the first situation, where a contention alleges the omission of particular 

information or an issue from an application, and the information is supplied later 

by the applicant, the contention is moot. Amergen Energy Co., LLC (Oyster 

Creek Nuclear Generating Station), LBP-06-16, 63 NRC 737, 742 (2006). 

Where the Commission was in the process of ruling on an untimely petition to 

intervene, when the applicant moved to amend its application and conclude the 

proceeding, the petition to intervene was dismissed as moot. Puget Sound 

Power & Light Co. (Skagit Nuclear Power Project, Units 1 & 2), CLI-80-34, 

12 NRC 407, 408 (1980). 

When a Licensing Board holds that the sole contention in a proceeding is moot, 

the mandatory disclosure process for that contention (10 C.F.R. §§ 2.336 

and 2.1203) is terminated. Oyster Creek, supra, at 745. 

2.10.3.4 Amendment of Petition Expanding Scope of Intervention 

In order to expand the scope of a previously filed petition to intervene, an intervenor 

carries the burden of persuading the Licensing Board that the information upon 

which the expansion is based: (a) was objectively unavailable at the time the 

PREHEARING MATTERS 40 JUNE 2011
original petition was filed, and (b) had it been available, the petition’s scope would 

have been broader. Louisiana Power & Light Co. (Waterford Steam Electric Station, 

Unit 3), LBP-73-31, 6 AEC 717, appeal dismissed as interlocutory, ALAB-168, 

6 AEC 1155 (1973). 

2.10.3.5 Withdrawal of Petition to Intervene 

Where only a single intervenor is party to a licensing proceeding, its withdrawal 

serves to bring the proceeding to an end. Int’l Uranium (USA) Corp. (Receipt of 

Material from Tonawanda, New York), LBP-00-11, 51 NRC 178, 180 (2000); Florida 

Power & Light, Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-91-13, 

34 NRC 185, 188 n.1 (1999); Pub. Serv. Co. of Colorado (Fort St. Vrain 

Independent Spent Fuel Storage Installation); Boston Edison Co. & Entergy Nuclear 

Generation Co. (Pilgrim Nuclear Power Station), CLI-99-17, 49 NRC 372, 373 

(1999). Where there is more than one intervenor in a case, the withdrawal of one 

does not terminate the proceeding. However, according to NRC procedure, it does 

serve to eliminate the withdrawing party’s contention from litigation. Houston 

Lighting & Power Co. (South Texas Project, Units 1 & 2), ALAB-799, 21 NRC 360, 

382 (1985). See also Project Mgmt. Corp. (Clinch River Breeder Reactor Plant), 

ALAB-354, 4 NRC 383, 391-92 (1976); Pub. Serv. Co. of New Hampshire

(Seabrook Station, Units 1 & 2), LBP-90-12, 31 NRC 427, 430-31 (1990), aff’d in 

part on other grounds, ALAB-934, 32 NRC 1 (1990). Accordingly, in the absence of 

prior timely adoption by another intervenor, those contentions can be preserved for 

further consideration only if an intervenor shows that the issues are admissible 

under the late-filing standards of 10 C.F.R. § 2.309(c)(1) (formerly § 2.714(a)(1)). 

Private Fuel Storage, L.L.C., LBP-99-6, 49 NRC 114, 118 (1999). Acceptance of 

contentions at the threshold stage of a licensing proceeding does not validate them 

as cognizable issues for litigation independent of their sponsoring intervenor. Texas 

Utils. Generating Co. (Comanche Peak Steam Electric Station, Units 1 & 2), 

CLI-81-36, 14 NRC 1111, 1113-14 (1981); South Texas, supra, 21 NRC at 383; 

Seabrook, supra, 31 NRC at 430-31, aff’d in part on other grounds, ALAB-934, 

32 NRC 1 (1990). 

The test that should be applied to determine whether one intervenor may be 

permitted to adopt contentions that no longer have a sponsor when the sponsoring 

intervenor withdraws from the proceeding, is the [eight]-factor test ordinarily used to 

determine whether to grant a nontimely request for intervention, or to permit the 

introduction of additional contentions by an existing intervenor after the filing date. 

South Texas, supra, 21 NRC at 381-82. See 10 C.F.R. § 2.309(c) (formerly 

§ 2.714(a)(1), (b)); Entergy Nuclear Operations, Inc. (Indian Point Nuclear 

Generating Units 2 & 3), LBP-08-13, 68 NRC 43, 65 (2008). For a detailed 

discussion of the [eight]-factor test, see Section 2.10.3.3.3) 

A party that voluntarily withdraws from a proceeding that was later resolved by a 

settlement agreement must satisfy the late intervention standards before seeking to 

reopen the record of that proceeding. Texas Utilities Electric Co. (Comanche Peak 

Steam Electric Station, Unit 2), CLI-93-1, 37 NRC 1 (1993) 

Safety or environmental matters which may be left as outstanding issues by a 

withdrawing intervenor may be raised by a Board sua sponte or be subject to nonadjudicatory resolution by the NRC Staff. South Texas, supra, 21 NRC at 383 

JUNE 2011 PREHEARING MATTERS 41
n.100. See Consolidated Edison Co. of New York (Indian Point Nuclear Generating 

Units 1, 2, & 3), ALAB-319, 3 NRC 188, 189-90 (1976). 

Voluntary withdrawal of a petition to intervene is without prejudice to reinstate the 

petition, although reinstatement can only be done on a showing of good cause. 

Mississippi Power & Light Co. (Grand Gulf Nuclear Station, Units 1 & 2), LBP-73-41, 

6 AEC 1057 (1973). 

Where an intervenor withdraws from a proceeding with prejudice, an issue 

sponsored solely by that intervenor is also dismissed, but without prejudice. 

Sequoyah Fuels Corp. (Gore, Oklahoma Site Decommissioning), LBP-00-30, 

52 NRC 335, 362 (2000). 

Where a lay person sought to withdraw both as an individual intervention petitioner 

and as the person on whom an organization relied for standing, a Licensing Board 

denied the motion to withdraw as the basis for the organization’s standing in order to 

give the petitioner an opportunity to reconsider, since granting the motion would 

lead to dismissal of the entire proceeding. Florida Power & Light Co. (Turkey Point 

Nuclear Generating Plant, Units 3 & 4), LBP-90-16, 31 NRC 509, 514 (1990). The 

organizational intervenor was subsequently dismissed from the proceeding when 

the individual upon whom it relied for standing was terminated from his employment 

in the geographical zone of interest of the plant, thereby losing the basis for his 

standing. Although the organization earlier had been given ample opportunity to 

establish its standing on other grounds, it failed to do so. Florida Power & Light Co.

(Turkey Point Nuclear Generating Plant, Units 3 & 4), LBP-90-24, 32 NRC 12, 14-15 

(1990), aff’d, ALAB-952, 33 NRC 521 (1991). 

Although the Appeal Board in the South Texas proceeding was concerned that a 

blanket stricture on the later adoption of a withdrawing party’s contentions would 

complicate litigation and settlement by encouraging “nominal” contention 

co-sponsorship at a proceeding’s outset, see Houston Lighting & Power Co. (South 

Texas Project, Units 1 & 2), ALAB-799, 21 NRC 360, 384 (1985), that consideration 

is not implicated when, as is apparent from its previous late-filed pleading seeking to 

adopt all other intervenors’ contentions, an intervenor sought early on to impose 

those complexities in this proceeding and failed to make the appropriate arguments. 

Under the circumstances, no reason exists to provide a second bite at the apple, 

especially when the intervenor’s ultimate justification is based on no more than the 

“trusted others to vigorously pursue” line of argument rejected in South Texas. See

id. at 382-83. Private Fuel Storage, L.L.C., LBP-99-6, 49 NRC 114, 118 (1999). 

2.10.3.6 Intervention in Antitrust Proceedings 

In addition to meeting the requirements of 10 C.F.R. § 2.309, a petitioner seeking to 

intervene in an antitrust proceeding must: 

 (1) describe the situation allegedly inconsistent with the antitrust laws which 

 is the basis for intervention: 

 (2) describe how that situation conflicts with the policies underlying 

 the Sherman, Clayton or Federal Trade Commission Acts; 

 (3) describe how that situation would be created or maintained by activities 

 under the proposed license; 

PREHEARING MATTERS 42 JUNE 2011
 (4) identify the relief sought; and 

 (5) explain why the relief sought fails to be satisfied by license conditions 

 proposed by the Department of Justice. 

Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), LBP-81-1, 13 NRC 27, 32 

(1981) (and cases cited therein). Note that for antitrust intervention, Catawba

implies that the interest of a ratepayer or consumer of electricity may be within the 

zone of interests protected by Section 105 of the AEA. The petitioner, however, 

must still demonstrate that an injury to its interests would be the proximate result of 

anticompetitive activities by the applicant or licensee and such injury must be more 

than remote and tenuous. Id. at 30-32; Wolf Creek, ALAB-279 supra. 

The most critical requirement of an antitrust intervention petition is an explanation of 

how the activities under the license would create or maintain an anticompetitive 

situation. Florida Power & Light Co. (St. Lucie Plant, Unit No. 2), ALAB-665, 

15 NRC 22, 29 (1982), citing Kansas Gas & Elec. Co. (Wolf Creek Generating 

Station, Unit No. 1), ALAB-279, 1 NRC 559, 574-575 (1975) and Louisiana Power &

Light Co. (Waterford Steam Electric Generating Station, Unit 3), CLI-73-25, 

6 AEC 619, 621 (1973). 

When neither the Attorney General nor the NRC Staff has discerned antitrust 

problems warranting review under Section 105.c. of the AEA, potential antitrust 

problems must be shown with reasonable clarity to justify granting a petition that 

would lead to protracted antitrust litigation involving a pro se petitioner. Detroit 

Edison Co. (Enrico Fermi Atomic Plant, Unit 2), LBP-78-13, 7 NRC 583, 595 (1978). 

Although Section 105 of the AEA encourages petitioners to voice their antitrust 

claims early in the licensing process, reasonable late requests for antitrust review 

are not precluded so long as they are made concurrent with licensing. Licensing 

Boards must have discretion to consider individual claims in a way which does 

justice to all of the policies which underlie Section 105c and the strength of 

particular claims justifying late intervention. Florida Power & Light Co. (St. Lucie 

Plant, Unit 2), CLI-78-12, 7 NRC 939, 946 (1978). 

Late requests for antitrust review hearings may be entertained in the period between 

the filing of an application for a construction permit – the time when the advice of the 

Attorney General is sought – and its issuance. However, as the time for issuance of 

the construction permit draws closer, Licensing Boards should scrutinize more 

closely and carefully the petitioner's claims of good cause. Id. The criteria of 

10 C.F.R. § 2.309(c) for late petitioners are as appropriate for evaluation of late 

antitrust petitions as in health, safety and environmental licensing, but 

Section 2.309(c) criteria should be more stringently applied to late antitrust petitions, 

particularly in assessing the good cause factor. Id. Where an antitrust petition is so 

late that relief will divert from the licensee needed and difficult-to-replace power, the 

Licensing Board may shape any relief granted to meet this problem. Id.

Where a late petition for intervention in an antitrust proceeding is involved, the 

special factors set forth within 10 C.F.R. § 2.309(c)(1) (formerly § 2.714(a)(1)) must 

be balanced and applied before petitions may be granted; the test becomes 

increasingly vigorous as time passes. Florida Power & Light Co. (St. Lucie Plant, 

Unit 2), LBP-81-28, 14 NRC 333, 338, 342 (1981). See Ohio Edison Co. (Perry 

JUNE 2011 PREHEARING MATTERS 43
Nuclear Power Plant, Unit 1) and Cleveland Elec. Illuminating Co. & Toledo Edison 

Co. (Perry Nuclear Power Plant, Unit 1; Davis-Besse Nuclear Power Station, Unit 1), 

LBP-91-38, 34 NRC 229, 246-47, 253-54 (1991), aff’d in part on other grounds and 

appeal denied, CLI-92-11, 36 NRC 47 (1992). 

2.10.4 Interest and Standing for Intervention 

“A petitioner’s standing, or right to participate in a Commission licensing proceeding, is 

grounded in Section 189.a. of the Atomic Energy Act, 42 U.S.C. § 2239 (a)(1)(A), 

which requires the NRC to provide a hearing ‘upon the request of any person whose 

interest may be affected by the proceeding.’” Duke Energy Corp. (McGuire Nuclear 

Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), LBP-02-4, 55 NRC 49, 61 

(2002). See also Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power 

Station), CLI-04-5, 59 NRC 52, 56 (2004); Entergy Nuclear Generation Co. & Entergy 

Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP-06-23, 64 NRC 257, 

269-70 (2006); Pa’ina Hawaii, LLC, LBP-06-4, 63 NRC 99, 103 (2006); PPL 

Susquehanna, LLC (Susquehanna Steam Electric Station, Units 1 & 2), LBP-07-4, 65 

NRC 281, 293 (2007); Virginia Elec. & Power Co. d/b/a Dominion Virginia Power & Old 

Dominion Elec. Coop. (North Anna Power Station, Unit 3), LBP-08-15, 68 NRC 294 

(2008). 

Both the AEA and the Commission’s regulations permit intervention only by a “person 

whose interest may be affected.” The term “person” in this context includes corporate 

environmental groups which may represent members of the group provided that such 

members have an interest which will be affected. Pub. Serv. Co. of Indiana (Marble 

Hill Nuclear Generating Station, Units 1 & 2), ALAB-322, 3 NRC 328 (1976). Standing 

to intervene as a matter of right does not hinge upon a petitioner’s potential 

contribution to the decisionmaking process. Virginia Elec. & Power Co. (North Anna 

Power Station, Units 1 & 2), ALAB-342, 4 NRC 98 (1976); see generally Sequoyah 

Fuels Corp. & Gen. Atomics (Gore, Oklahoma Site), LBP-94-19, 40 NRC 9 (1994). 

Nevertheless, a petitioner’s potential contribution has a definite bearing on 

“discretionary intervention.” See Section 2.10.4.2. 

10 C.F.R. § 2.309(d)(1) requires that the Board consider three factors when deciding 

whether to grant standing: (1) the nature of the petitioner’s right under the AEA to be 

made a party to the proceeding; (2) the nature and extent of the petitioners’ property, 

financial, or other interest in the proceeding; (3) the possible effect of any order that 

may be entered in the proceeding on the petitioner’s interest. 

Standing is not a mere legal technicality, it is, in fact, an essential element in 

determining whether there is any legitimate role for a court or an agency adjudicatory 

body in dealing with a particular grievance. Westinghouse Elec. Corp. (Nuclear Fuel 

Export License for Czech Republic – Temelin Nuclear Power Plants), CLI-94-7, 

39 NRC 322, 331-32 (1994). Burden for proving standard rests with the petitioner. 

U.S. Enrichment Corp. (Paducah, Kentucky Gaseous Diffusion Plant), DD-01-3, 

54 NRC 305, 308 (2001); citing Commonwealth Edison Co. (Zion Nuclear Power 

Station, Units 1 & 2), CLI-00-05, 51 NRC 90, 98 (2000). Even where there are no 

objections to a petitioner’s standing, standing requirements must still be met. Progress 

Energy Carolinas, Inc. (Shearon Harris Nuclear Power Plant, Units 2 & 3), LBP-08-21, 

68 NRC 554, 559 (2008). 

PREHEARING MATTERS 44 JUNE 2011
In making a standing determination, a presiding officer is to “construe the [intervention] 

petition in favor of the petitioner.” Georgia Inst. of Tech. (Georgia Tech Research 

Reactor, Atlanta Georgia), CLI-95-12, 42 NRC 111, 115 (1995). See also Duke 

Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), 

LBP-01-35, 54 NRC 403, 414 (2001); Gen. Pub. Utils. Nuclear Corp. (Oyster Creek 

Nuclear Generating Station), LBP-96-23, 44 NRC 143, 158 (1996). Northeast Nuclear 

Energy Co. (Millstone Nuclear Power Station, Unit 3), LBP-98-20, 48 NRC 87, 92 

(1998); Molycorp, Inc. (Washington, Pennsylvania, Temporary Waste Storage & Site 

Decommissioning Plan), LBP-00-10, 51 NRC 163, 168 (2000); Duke Energy Carolinas, 

LLC (William States Lee III Nuclear Station, Units 1 & 2), LBP-08-17, 68 NRC 431, 439 

(2008); Progress Energy Carolinas, Inc. (Shearon Harris Nuclear Power Plant, Units 2 

& 3), LBP-08-21, 68 NRC 554, 559 (2008); Tennessee Valley Auth. (Bellefonte Nuclear 

Power Plant, Units 3 & 4), LBP-08-16, 68 NRC 361, 378 (2008). 

In Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 & 2), 

ALAB-333, 3 NRC 804 (1976), the Appeal Board certified the following questions to the 

Commission: 

 (1) Should standing in NRC proceedings be governed by “judicial” 

 standards? 

 (2) If no “right” to intervene exists under whatever standing rules are found to 

 be applicable, what degree of discretion exists in a Board to admit a 

 petitioner anyway? 

The Commission’s response to the certified question is contained in Portland General 

Electric Co. (Pebble Springs Nuclear Plant, Units 1 & 2), CLI-76-27, 4 NRC 610 (1976). 

Therein, the Commission ruled that judicial concepts of standing should be applied by 

adjudicatory boards in determining whether a petitioner is entitled to intervene as of 

right under Section 189.a. of the AEA. See also Crow Butte Res., Inc. (North Trend 

Expansion Project), LBP-08-6, 67 NRC 241 (2008); Dominion Nuclear Connecticut, 

Inc. (Millstone Nuclear Power Station, Unit 3), LBP-08-9, 67 NRC 421 (2008); Entergy 

Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), LBP-08-13, 

68 NRC 43 (2008) (noting that in addition to the 10 C.F.R. § 2.309(d)(1) factors, the 

Board also follows guidance found in judicial concepts of standing, which are injury, 

traceability, and redressability). As to the second question referred by the Appeal 

Board, the Commission held that Licensing Boards may, as a matter of discretion, 

grant intervention in domestic licensing cases to petitioners who are not entitled to 

intervene as of right under judicial standing doctrines but who may, nevertheless, make 

some contribution to the proceeding. 

In the absence of a clear misapplication of the facts or misunderstanding of law, the 

Licensing Board’s judgment at the pleading stage that a party has crossed the standing 

threshold is entitled to substantial deference. Gulf States Utils. Co. (River Bend 

Station, Unit 1), CLI-94-10, 40 NRC 43, 47-48 (1994). Private Fuel Storage, L.L.C.

(Independent Spent Fuel Storage Installation), CLI-01-01, 53 NRC 1, 14 (2001). The 

standing requirement arises from the hearing authorization in Section 189.a.(1) of the 

AEA, providing a hearing “upon the request of any person whose interest may be 

affected” by a proceeding (emphasis added). Quivira Mining Corp. (Ambrosia Lake 

Facility, Grants, New Mexico), LBP-97-20, 46 NRC 257, 262 (1997), aff’d, CLI-98-11, 

48 NRC 1 (1998); see also Consolidated Edison Co. of New York and Entergy Nuclear 

Indian Point 2, LLC, & Entergy Nuclear Operations, Inc. (Indian Point Nuclear 

JUNE 2011 PREHEARING MATTERS 45
Generating Units 1 & 2), CLI-01-19, 54 NRC 109, 133 (2001); Envirocare, Inc. v. NRC, 

194 F.3d 72 (D.C. Cir. 1999); Florida Power & Light Co. (Turkey Point Nuclear 

Generating Plant, Units 3 & 4), LBP-01-6, 53 NRC 138, 145-146 (2001). 

Standing to intervene, unlike the factual merits of contentions, may appropriately be the 

subject of an evidentiary inquiry before intervention is granted. Consumers Power Co.

(Midland Plant, Units 1 & 2), LBP-78-27, 8 NRC 275, 277 n.1 (1978); Nuclear Eng’g 

Co., Inc., (Sheffield, Illinois, Low-Level Radioactive Waste Disposal Site), ALAB-473, 

7 NRC 737, 744 (1978); Georgia Power Co., et al. (Vogtle Electric Generating Plant, 

Units 1 & 2), LBP-92-38, 36 NRC 394 (1992); Babcock & Wilcox (Apollo, Pennsylvania 

Fuel Fabrication Facility), LBP-93-4, 37 NRC 72, 83 (1993). 

If there is nothing in an intervening party’s petition indicating that the party possesses 

special knowledge or that the party will present significant information not already 

available to and considered by the Commission, then a discretionary hearing would 

impose unnecessary burdens on the participants without assisting the Commission in 

making its statutory findings under the AEA. Transnuclear, Inc. (Export of 93.3% 

Enriched Uranium), CLI-00-16, 52 NRC 68, 72 (2000). 

Further, Commission case law is clear that a petitioner must make a fresh standing 

demonstration in each proceeding in which intervention is sought because a 

petitioner’s circumstances may change from one proceeding to the next. Therefore, 

the Board correctly found that it may focus only on the support the petitioner presented 

with respect to this proceeding in ruling on the petitioner’s standing to intervene. PPL 

Bell Bend, LLC (Bell Bend Nuclear Power Plant), CLI-10-07, 71 NRC __ (Jan. 7, 2010) 

(slip op. at 6) 

The Commission agreed with the Board that the petitioner’s general statement that the 

petitioner “routinely pierces” a 50-mile radius around the site, is too vague a statement 

on which to base standing. PPL Bell Bend, LLC (Bell Bend Nuclear Power Plant), 

CLI-10-07, 71 NRC __ (Jan. 7, 2010) (slip op. at 8) 

“There is no question that, in an operating license proceeding, the question of a 

potential intervenor’s standing is a significant one. For if no petitioner for intervention 

can satisfactorily demonstrate standing, it is likely that no hearing will be held.” Detroit 

Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-37, 8 NRC 575, 582 

(1978). 

In Commission practice, a “generalized grievance” shared in substantially equal 

measure by all or a large class of citizens will not result in a distinct and palpable harm 

sufficient to support standing. Metropolitan Edison Co. (Three Mile Island Nuclear 

Station, Unit 1), CLI-83-25, 18 NRC 327, 333 (1983), citing Transnuclear Inc., 

CLI-77-24, 6 NRC 525, 531 (1977); Florida Power & Light Co. (St. Lucie Nuclear 

Power Plant, Unit 2), LBP-87-2, 25 NRC 32, 34-35 (1987); Envirocare of Utah, Inc., 

LBP-92-8, 35 NRC 167, 174 (1992). See Ohio Edison Co. (Perry Nuclear Power Plant, 

Unit 1) and Cleveland Elec. Illuminating Co. & Toledo Edison Co. (Perry Nuclear Power 

Plant, Unit 1; Davis-Besse Nuclear Power Station, Unit 1), LBP-91-38, 34 NRC 229, 

248-49 (1991), aff’d in part on other grounds and appeal denied, CLI-92-11, 

36 NRC 47 (1992); Nuclear Mgmt. Co., LLC (Monticello Nuclear Generating Plant), 

LBP-05-31, 62 NRC 735, 746 (2005). 

PREHEARING MATTERS 46 JUNE 2011
Assertions of broad public interest in (a) regulatory matters, (b) the administrative 

process, and (c) the development of economical energy resources do not establish the 

particularized interest necessary for participation by an individual or group in NRC 

adjudicatory processes. Metropolitan Edison Co. (Three Mile Island Nuclear Station, 

Unit 1), CLI-83-25, 18 NRC 327, 332 (1983). See Long Island Lighting Co. (Shoreham 

Nuclear Power Station, Unit 1), LBP-91-1, 33 NRC 15, 28 (1991); Long Island Lighting 

Co. (Shoreham Nuclear Power Station, Unit 1), LBP-91-7, 33 NRC 179, 192 (1991); 

Transnuclear, Inc. (Export of 93.3% Enriched Uranium), CLI-98-10, 47 NRC 333 

(1998). 

Economic interest as a ratepayer does not confer standing in NRC licensing 

proceedings. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), 

CLI-83-25, 18 NRC 327, 332 n.4 (1983); Boston Edison Co. (Pilgrim Nuclear Power 

Station), LBP-85-24, 22 NRC 97, 98, aff’d on other grounds, ALAB-816, 22 NRC 461 

(1985); Northern States Power Co. (Pathfinder Atomic Plant), LBP-89-30, 30 NRC 311, 

313, 315 (1989); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), 

LBP-91-1, 33 NRC 15, 30 (1991); Long Island Lighting Co. (Shoreham Nuclear Power 

Station, Unit 1), LBP-91-7, 33 NRC 179, 193 (1991); Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), LBP-91-23, 33 NRC 430, 437, 443 (1991); 

Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-91-26, 33 

NRC 537, 544, 546 (1991), reconsid. denied, LBP-91-32, 34 NRC 132 (1991); Texas 

Utils. Elec. Co., et al. (Comanche Peak Steam Electric Station, Unit 2), LBP-92-37, 36 

NRC 370, 374 (1992). 

In assessing whether a petitioner has set forth a sufficient “interest” within the meaning 

of the AEA and the agency’s regulations to intervene as a matter of right in a licensing 

proceeding, the Commission has long applied contemporaneous judicial concepts of 

standing. Atlas Corp. (Moab, Utah), LBP-00-4, 51 NRC 53, 55 (2000); See, e.g., 

Georgia Inst. of Tech. (Georgia Tech Research Reactor, Atlanta, Georgia), CLI-95-12, 

42 NRC 111, 115 (1995); Portland Gen. Elec. Co. (Pebble Springs Nuclear Plant, Units 

1 & 2), CLI-76-27, 4 NRC 610, 613-14 (1976); Duke Energy Corp. (McGuire Nuclear 

Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), LBP-02-4, 55 NRC 49, 62 

(2002). 

“The Commission generally defers to the Presiding Officer’s determinations regarding 

standing, absent an error of law or an abuse of discretion.” Int’l Uranium (USA) Corp.

(White Mesa Uranium Mill), CLI-01-18, 54 NRC 27, 31 (2001); citing Int’l Uranium 

(USA) Corp. CLI-98-6, 47 NRC 116, 118 (1998); Georgia Inst. of Technology, 

CLI-95-12, 42 NRC 111, 116 (1995). See also Int’l Uranium (USA) Corp. (White Mesa 

Uranium Mill), CLI-02-10, 55 NRC 251, 254 (2002) (noting that Commission generally 

defers to a Presiding Officer’s finding on standing, as the Presiding Officer has a 

greater familiarity than the Commission with the precise allegations and nuances in the 

factual record before him). 

2.10.4.1 Judicial Standing to Intervene 

Judicial concepts of standing will be applied in determining whether a petitioner has 

sufficient interest in a proceeding to be entitled to intervene as a matter of right 

under Section 189.a. of the AEA. Metropolitan Edison Co. (Three Mile Island 

Nuclear Station, Unit 1), CLI-83-25, 18 NRC 327, 332 (1983), citing Portland Gen.

Elec. Co. (Pebble Springs Nuclear Plant, Units 1 & 2), CLI-76-27, 4 NRC 610 

JUNE 2011 PREHEARING MATTERS 47
(1976); Gulf States Utils. Co. (River Bend Station, Unit 1), CLI-94-10, 40 NRC 43, 

47 (1994); Sequoyah Fuels Corp. & Gen. Atomics (Gore, Oklahoma Site), 

LBP-94-19, 40 NRC 9, 13 (1994); U.S. Dep’t of Energy, CLI-04-17, 59 NRC 357, 

363 (2004); see also Energy Fuels Nuclear, Inc., LBP-94-33, 40 NRC 151 (1994); 

Northern States Power Co. (Independent Spent Fuel Storage Installation), 

LBP-96-22, 44 NRC 138, 140-41 (1996); Quivira Mining Corp. (Ambrosia Lake 

Facility, Grants, New Mexico), LBP-97-20, 46 NRC 257, 262 (1997), aff’d, 

CLI-98-11, 48 NRC 1 (1998), aff’d sub nom. Envirocare, Inc. v. NRC, 194 F.3d 72 

(D.C. Cir. 1999); Private Fuel Storage, L.L.C., (Independent Spent Fuel Storage 

Installation), CLI-98-13, 48 NRC 26 (1998); Northeast Nuclear Energy Co. (Millstone 

Nuclear Power Station, Unit 3), LBP-98-22, 48 NRC 149, 153 (1998). See also

Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), 

CLI-01-1, 53 NRC 1, 6 (2001); Florida Power & Light Co. (Turkey Point Nuclear 

Generating Plant, Units 3 & 4), LBP-08-18, 68 NRC 533, 538 (2008); Tennessee 

Valley Auth. (Bellefonte Nuclear Power Plant, Units 3 & 4), LBP-08-16, 68 NRC 361, 

378 (2008). 

The Commission has held that contemporaneous judicial concepts should be used 

to determine whether a petitioner has standing to intervene. Niagara Mohawk 

Power Corp. (Nine Mile Point Nuclear Station, Unit 2), LBP-83-45, 18 NRC 213, 

215 (1983), citing Portland Gen. Elec. Co. (Pebble Springs Nuclear Plant, Units 1 

& 2), CLI-76-27, 4 NRC 610 (1976); Babcock & Wilcox (Apollo, Pennsylvania Fuel 

Fabrication Facility), LBP-93-4, 37 NRC 72, 80 (1993); Sequoyah Fuels Corp. &

Gen. Atomics (Gore, Oklahoma Site), LBP-94-19, 40 NRC 9, 13 (1994); Gulf States 

Utils. Co., et al. (River Bend Station, Unit 1), LBP-94-3, 39 NRC 31; aff’d, CLI-94-10, 

40 NRC 43 (1994). Envirocare, Inc. v. NRC, 194 F.3d 72 (D.C. Cir. 1999); Northeast 

Nuclear Energy Co. (Millstone Nuclear Power Station, Unit 3), LBP-98-20, 

48 NRC 87, 91 (1998); Private Fuel Storage, L.L.C., CLI-99-10, 49 NRC 318, 

322-23 (1999); Department of the Army (Aberdeen Proving Ground), LBP-99-38, 

50 NRC 227, 229 (1999); PPL Susquehanna, LLC (Susquehanna Steam Electric 

Station, Units 1 & 2), LBP-07-4, 65 NRC 281, 293 (2007); Southern Nuclear 

Operating Co. (Early Site Permit for Vogtle ESP Site), LBP-07-3, 65 NRC 237, 249 

(2007). 

Because agencies are not constrained by Article III, nor are they governed by 

judicially created standing doctrines restricting access to federal courts, the criteria 

for establishing administrative standing may permissibly be less demanding than the 

criteria for judicial standing. Envirocare of Utah, Inc. v. NRC, 194 F.3d 72, 74 

(D.C. Cir. 1999). 

Judicial concepts of standing require a showing that (a) the action sought in a 

proceeding will cause injury-in-fact, and (b) the injury is arguably within the “zone of 

interests” protected by statutes governing the proceeding. Metropolitan Edison Co.

(Three Mile Island Nuclear Station, Unit 1), CLI-83-25, 18 NRC 327, 332 (1983); 

Sequoyah Fuels Corp. & Gen. Atomics (Gore, Oklahoma Site), LBP-94-19, 

40 NRC 9, 13-14 (1994); Gulf States Utils. Co. (River Bend Station, Unit 1), 

CLI-94-10, 40 NRC 43, 47 (1994); Northeast Nuclear Energy Co. (Millstone Nuclear 

Power Station, Unit 3), LBP-98-20, 48 NRC 87 (1998); Cabot Performance 

Materials, LBP-00-13, 51 NRC 284, 289 (2000). 

PREHEARING MATTERS 48 JUNE 2011
In order to establish standing, a petitioner must show: (1) that he has personally 

suffered a distinct and palpable harm that constitutes injury-in-fact; (2) that the injury 

fairly can be traced to the challenged action; and (3) that the injury is likely to be 

redressed by a favorable decision. Dellums v. NRC, 863 F.2d 968, 971 

(D.C. Cir. 1988); Shoreham-Wading River Cent. Sch. Dist. v. NRC, 931 F.2d 102, 

105 (D.C. Cir. 1991); Kelley v. Selin, 42 F.3d 1501, 1507 (6th Cir. 1995), citing

Michigan v. U.S., 994 F.2d 1197, 1203 (6th Cir. 1993); Pub. Serv. Co. of New 

Hampshire (Seabrook Station, Unit 1), CLI-91-14, 34 NRC 261, 266-68 (1991); 

Sequoyah Fuels Corp. & Gen. Atomics (Gore, Oklahoma Site), CLI-94-12, 

40 NRC 64, 71-72; Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), 

CLI-94-3, 39 NRC 95 (1994); Georgia Inst. of Tech. (Georgia Tech Research 

Reactor), CLI-95-12, 42 NRC 111, 115 (1995); Maine Yankee Atomic Power Co.

(Maine Yankee Atomic Power Station), CLI-04-5, 59 NRC 52, 57 n. 16 (2004); 

Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), 

LBP-08-18, 68 NRC 533, 538 (2008). 

A contemporary delineation of those concepts appeared in Bennett v. Spear, 

520 U.S. 154, 167, 117 S.Ct. 1154, 1163 (1997) (citing Lujan v. Defenders of the 

Wildlife, 504 U.S. 555, 560-61 (1992)), where the Court observed that constitutional 

minimum standards of standing are that (1) the plaintiff suffer injury-in-fact, both 

actual or imminent; (2) there is a causal connection between the injury and the 

conduct in question; and (3) the injury likely will be redressed by a favorable 

decision. Quivira Mining Co. (Ambrosia Lake Facility, Grants, New Mexico), 

LBP-97-20, 46 NRC 257, 262 (1997), aff’d, CLI-98-11, 48 NRC 1 (1998), aff’d sub 

nom. Envirocare, Inc. v. NRC, 194 F.3d 72 (D.C. Cir. 1999); GPU Nuclear, Inc., et. 

al. (Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 202 (2000); 

Power Authority of the State of New York, et. al. (James FitzPatrick Nuclear Power 

Plant; Indian Point Nuclear Generating Unit 3), CLI-00-22, 52 NRC 266, 292 (2000); 

Sequoyah Fuels Corp. (Gore, Oklahoma, Site Decommissioning), CLI-01-2, 

53 NRC 2, 13 (2001); Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; 

Catawba Nuclear Station, Units 1 & 2), LBP-02-4, 55 NRC 49, 62 (2002); PPL 

Susquehanna LLC (Susquehanna Steam Electric Station, Units 1 & 2), LBP-07-4, 

65 NRC 281, 293 (2007); Shieldalloy Metallurgical Corp. (Amendment Request for 

Decommissioning of the Newfield, New Jersey Facility), LBP-07-5, 65 NRC 341, 

345 (2007); Southern Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), 

LBP-07-3, 65 NRC 237, 249 (2007); PPL Susquehanna LLC (Susquehanna Steam 

Electric Station, Units 1 & 2), LBP-07-10, 66 NRC 1, 14 (2007). 

Contemporaneous judicial concepts of standing require that a petitioner 

demonstrate that it will suffer an “injury-in-fact,” that there be a causal connection 

between the alleged injury and the action complained of, and the injury be 

redressed by a favorable decision. Bennett v. Spear, 520 U.S. 154, 167-68 (1997). 

In addition, the petitioner must meet the “prudential” requirement that the complaint 

arguably falls within the zone of interests of the governing law. Id. at 175. See also

Pa’ina Hawaii, LLC, LBP-06-4, 63 NRC 99, 103 (2006). 

As a line of Supreme Court cases makes clear, redressability is an essential 

element of standing. To establish standing, a petitioner must not only allege actual 

injury “fairly traceable” to the defendants’ actions, it must also show the likelihood 

that the injury would be “redressed” if the petitioner obtains the relief requested. 

This requirement is grounded in the provision in Article III of the Constitution that 

JUNE 2011 PREHEARING MATTERS 49
limits jurisdiction to “cases and controversies.” Where an alleged injury does not 

stem directly from the challenged governmental action, but instead involves 

predicting the actions of third parties not before the court, the difficulty of showing 

redressability is particularly great. Westinghouse Elec. Corp. (Nuclear Fuel Export 

License for Czech Republic – Temelin Nuclear Power Plants), CLI-94-7, 

39 NRC 322, 331 (1994); Northeast Nuclear Energy Co. (Millstone Nuclear Power 

Station, Unit 3), LBP-98-22, 48 NRC 149 (1998). 

The redressability element of standing requires a party to show that its claimed 

actual or threatened injury could be cured by some action of the tribunal. Sequoyah 

Fuels Corp. (Gore, Oklahoma, Site Decommissioning), CLI-01-2, 53 NRC 2, 14 

(2001). 

Judicial standing permitted petitioners living nearby to challenge the rule on dry cask 

storage and assert harm to their aesthetic interests and their physical health, and 

that the value of their property will be diminished by the storage of nuclear waste in 

the VSC-24 casks at Palisades. Kelley v. Selin, 42 F.3d 1501, 1509 (6th Cir. 1995). 

Judicial standing to challenge rule on reporting requirement, even though comment 

was made on earlier “prescriptive” versus later “performance-based” rule. Reytblatt 

v. NRC, 105 F.3d 715 (D.C. Cir. 1997). 

It generally is the practice for participants making factual claims regarding the 

circumstances that establish standing to do so in affidavit form that is notarized or 

includes a declaration that the statements are true and are made under penalty of 

perjury. Atlas Corp. (Moab, Utah Facility), LBP-97-9, 45 NRC 414, 427 n.4 (1997). 

Where a petitioner does not satisfy the judicial standards for standing, intervention 

could still be allowed as a matter of discretion. Metropolitan Edison Co. (Three Mile 

Island Nuclear Station, Unit 1), CLI-83-25, 18 NRC 327, 333 (1983); Sacramento 

Mun. Util. Dist. (Rancho Seco Nuclear Generating Station), CLI-93-12, 37 NRC 355, 

358 (1993). 

Merely because a petitioner may have had standing in an earlier proceeding does 

not automatically grant standing in subsequent proceedings, even if the scope of 

the earlier and later proceedings is similar. Pacific Gas & Elec. Co. (Diablo Canyon 

Nuclear Power Plant, Units 1 & 2), LBP-92-27, 36 NRC 196, 198 (1992), citing

Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant, Unit 1), LBP-92-4, 

35 NRC 114, 125-26 (1992); see also Nuclear Fuel Servs., Inc. (Special Nuclear 

Facility), LBP-07-16, 66 NRC 277, 284 (2007) (“The Sierra Club’s arguments that it 

has standing because it had standing in past licensing actions involving the NFS 

facility or because of its participation in public statements about the recent safety 

issues at NFS are insufficient to meet the three-part framework the Board uses for 

standing inquiries”). The fact that a petitioner was found to have standing in an 

earlier proceeding does not automatically grant standing in subsequent proceedings 

because a petitioner’s status can change over time and the bases for its standing in 

an earlier proceeding may no longer apply. Petitioners must therefore make a full 

showing regarding standing in each new proceeding. PPL Bell Bend, LLC (Bell 

Bend Nuclear Power Plant), LBP-09-18, 70 NRC 385, 397-398 (2009) (aff’d by 

CLI-10-07, 71 NRC __ (Jan. 7, 2010) (slip op.). 

PREHEARING MATTERS 50 JUNE 2011
The fact that the petitioner is an intervenor with respect to the same issue in another 

proceeding does not give him standing to intervene for the purpose of protecting 

himself from adverse precedent in the proceeding in question. Consolidated Edison 

Co. of N.Y., Inc. (Indian Point Nuclear Nuclear Generating Units 1, 2 & 3), ALAB304, 3 NRC 1, 4 (1976). 

Where there are two ongoing proceedings involving the same facility, an intervenor 

in the first proceeding need not reiterate its statement of standing in the second 

proceeding but may instead rely on its standing in the earlier proceeding. Georgia 

Inst. of Tech. (Georgia Tech Research Reactor), LBP-95-23, 42 NRC 215, 217 

(1995). 

A petitioner’s standing in a non-NRC proceeding is insufficient to establish standing 

in an NRC proceeding, at least in the absence of a showing of the equivalence of 

applicable standards and an overlap of relevant issues. Georgia Power Co. (Vogtle 

Electric Generating Plant, Units 1 & 2), LBP-90-29, 32 NRC 89, 91 (1990). 

Under certain circumstances, petitioners who participated in an earlier NRC 

proceeding will not be required to establish again their interests to participate in a 

subsequent, separate NRC proceeding involving the same facility. Thus, an 

organization which participated in an earlier proceeding as the representative of one 

of its members who resided in close proximity to the facility was conditionally 

granted leave to intervene in a subsequent, separate proceeding involving the same 

facility even though the organization failed to append affidavits to its intervention 

petition establishing the residence of its member. Georgia Power Co. (Vogtle 

Electric Generating Plant, Units 1 & 2), LBP-91-33, 34 NRC 138, 141 (1991). But 

see Pacific Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), 

LBP-92-27, 36 NRC 196, 198 (1992). 

Where a license amendment grants a co-licensee precisely the relief which the 

co-licensee seeks as a party to a pending proceeding, the co-licensee loses its 

standing to assert its claim in the proceeding. Nuclear Fuel Servs. & New York 

State Energy Research & Dev. Auth. (Western New York Nuclear Service Center), 

LBP-82-36, 15 NRC 1075, 1083 (1982). 

Those persons who would have standing to intervene in new construction permit 

hearings, which would be required if good cause could not be shown for an 

extension of an existing construction permit, would have standing to intervene in 

[extension proceedings] to show that no good cause existed and, consequently, that 

new construction permit hearings would be required to complete construction. 

Northern Indiana Pub. Serv. Co. (Bailly Generating Station, Nuclear-1), LBP-80-22, 

12 NRC 191, 195, aff’d, ALAB-619, 12 NRC 558, 563-565 (1980). 

The ultimate merits of the case have no bearing on the threshold question of 

standing. Sequoyah Fuels Corp. (Gore, Oklahoma, Site Decommissioning), 

CLI-01-2, 53 NRC 2, 15 (2001). 

If an intervenor has established standing in a prior proceeding involving the same 

facility, there is no need for the intervenor to establish standing in a later 

proceeding. U.S. Army (Jefferson Proving Ground), LBP-04-01, 59 NRC 27, 29 

(2004). 

JUNE 2011 PREHEARING MATTERS 51
However, “a prospective petitioner has an affirmative duty to demonstrate that it has 

standing in each proceeding in which it seeks to participate since a petitioner’s 

status can change over time and the bases or its standing in an earlier proceeding 

may no longer obtain. The Staff would acknowledge that, in certain situations, a 

petitioner may seek to rely on prior demonstrations of standing if those prior 

demonstrations are (1) specifically identified and (2) shown to correctly reflect the 

current status of the petitioner's standing.” Texas Utils. Elec. Co. (Comanche Peak 

Steam Electric Station, Unit 2), CLI-93-4, 37 NRC 156, 163 (1993); Northeast 

Nuclear Energy Co. (Millstone Nuclear Power Station, Units 1, 2 & 3), CLI-00-18, 

52, NRC 129, 132-33 (2000). 

A petitioner must select a remedy that falls within the scope of the proceeding, as 

articulated in the Notice of Hearing. Where the Notice of Hearing limits the scope to 

whether an order of the Commission should be sustained, a petitioner’s sole remedy 

in such a proceeding would be rescission of the order. In such a hearing, a 

petitioner cannot obtain a hearing simply by suggesting that the order should be 

strengthened in some way. Rather, the petitioner must show that he or she would 

be better off in the absence of any order at all. Detroit Edison Co., Fermi Power 

Plant (Independent Spent Fuel Storage Installation), LBP-09-20, 70 NRC ___ (Aug. 

21, 2009) (slip op. at 12-15) citing Bellotti v. NRC, 725 F.2d 1380, 1381-1382 

(1983). 

2.10.4.1.1 “Injury-In-Fact” and “Zone of Interest” Tests for Standing to 

Intervene 

Although the Commission’s Pebble Springs ruling (CLI-76-27, 4 NRC 610) 

permits discretionary intervention in certain limited circumstances, it stresses 

that, as a general rule, the propriety of intervention is to be examined in the light 

of judicial standing principles. The judicial principles referred to are those set 

forth in Sierra Club v. Morton, 405 U.S. 727 (1972); Barlow v. Collins, 

397 U.S. 159 (1970); and Association of Data Processing Service Organizations 

v. Camp, 397 U.S. 150 (1970). Such standards require a showing that (1) the 

action being challenged could cause injury-in-fact to the person seeking to 

establish standing, and (2) such injury is arguably within the zone of interests 

protected by the statute governing the proceeding. Wisconsin Elec. Power Co.

(Point Beach, Unit 1), CLI-80-38, 12 NRC 547 (1980); Philadelphia Elec. Co.

(Limerick Generating Station, Units 1 & 2), LBP-82-43A, 15 NRC 1423, 1431, 

1432 (1982), citing Portland Gen. Elec. Co. (Pebble Springs Nuclear Plant, 

Units 1 & 2), CLI-76-27, 4 NRC 610, 612-13 (1976); Boston Edison Co. (Pilgrim 

Nuclear Power Station), LBP-85-24, 22 NRC 97, 98 n.6 (1985), aff’d on other 

grounds, ALAB-816, 22 NRC 461 (1985); Sequoyah Fuels Corp., LBP-91-5, 

33 NRC 163, 165, 166 (1991); Pub. Serv. Co. of New Hampshire (Seabrook 

Station, Unit 1), LBP-91-28, 33 NRC 557, 559 (1991), aff’d on other grounds, 

CLI-91-14, 34 NRC 261, 266-68 (1991); Pacific Gas & Elec. Co. (Diablo Canyon 

Nuclear Power Plant, Units 1 & 2), LBP-93-1, 37 NRC 5 (1993); Babcock &

Wilcox (Apollo, Pennsylvania Fuel Fabrication Facility), LBP-93-4, 37 NRC 72, 80 

(1993); Sequoyah Fuels Corp. & Gen. Atomics (Gore, Oklahoma Site), 

LBP-94-19, 40 NRC 9, 13 (1994); Int’l Uranium (USA) Corp. (White Mesa 

Uranium Mill), LBP-97-21, 46 NRC 273, 274 (1997); Yankee Atomic Elec. Co.

(Yankee Nuclear Power Station), CLI-98-21, 48 NRC 185 (1998); Power Auth. of 

PREHEARING MATTERS 52 JUNE 2011
the State of New York, et al. (James FitzPatrick Nuclear Power Plant; Indian 

Point Nuclear Generating Unit 3), CLI-00-22, 52 NRC 266, 292 (2000). 

Two tests must be satisfied to acquire standing: (1) petitioner must allege “injuryin-fact” (that some injury has occurred or will probably result from the action 

involved); and (2) petitioner must allege an interest “arguably within the zone of 

interest” protected by the statute. Puget Sound Power & Light Co.

(Skagit/Hanford Nuclear Power Project, Units 1 & 2), LBP-82-74, 16 NRC 981, 

983 (1982), citing Warth v. Selden, 422 U.S. 490 (1975); Sierra Club v. Morton, 

405 U.S. 727 (1972); Consumers Power Co. (Palisades Nuclear Plant), 

LBP-79-20, 10 NRC 108, 113 (1979); Duquesne Light Co. (Beaver Valley Power 

Station, Unit 2), LBP-84-6, 19 NRC 393, 428 (1984); Northeast Nuclear Energy 

Co. (Millstone Nuclear Power Station, Unit 1), LBP-96-1, 43 NRC 19 (1996); 

International Uranium (USA) Corporation (White Mesa Uranium Mill), LBP-97-14, 

46 NRC 55 (1997); Quivira Mining Co. (Ambrosia Lake Facility, Grants, NM), 

CLI-98-11, 48 NRC 1 (1998), aff’d sub nom. Envirocare, Inc. v. NRC, 

194 F.3d 72 (D.C. Cir. 1999); Northeast Nuclear Energy Co. (Millstone Nuclear 

Power Station, Unit 3), LBP-98-22, 48 NRC 149 (1998); Entergy Nuclear 

Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power 

Station), LBP-06-23, 64 NRC 257, 270 (2006). 

The existence of judicial standing hinges upon a demonstration of a present or 

future injury-in-fact that is arguably within the zone of interests protected by the 

governing statute(s). Int’l Uranium (USA) Corp. (White Mesa Uranium Mill) 

LBP-01-15, 53 NRC 344, 347 (2001). 

To constitute an adequate showing of injury-in-fact within a cognizable sphere of 

interest, “pleadings must be something more than an ingenious academic 

exercise in the conceivable. A plaintiff must allege that he has or will in fact be 

perceptibly harmed by the challenged agency action, not that he can imagine 

circumstances in which he could be affected by the agency’s action.” Id. at 349 

(citing United States v. Students Challenging Regulatory Agency Procedures 

(SCRAP), 412 U.S. 669, 688-89 (1973); Florida Power & Light Co. (Turkey Point 

Nuclear Generating Plant, Units 3 & 4), LBP-08-18, 68 NRC 533, 538 (2008)). 

No injury-in-fact can result where no new activity is proposed. Sequoyah Fuels 

Corp. (Gore, Oklahoma Site), CLI-04-01, 59 NRC 1, 4 (2004). 

A petitioner must allege an “injury-in-fact” which must be within the “zone of 

interests” protected by the AEA or NEPA. Niagara Mohawk Power Corp. (Nine 

Mile Point Nuclear Station, Unit 2), LBP-83-45, 18 NRC 213, 215 (1983). See

Northern States Power Co. (Pathfinder Atomic Plant), LBP-89-30, 30 NRC 311, 

313, 315 (1989); Long Island Lighting Co. (Shoreham Nuclear Power Station, 

Unit 1), LBP-91-23, 33 NRC 430, 443, 444 (1991). A hearing petitioner bears the 

burden of establishing that the various injuries alleged to occur to its AEAprotected health and safety interests or its NEPA-protected environmental 

interests satisfy the three components of the injury-in-fact requirement. Babcock 

& Wilcox (Apollo, Pennsylvania Fuel Fabrication Facility), LBP-93-4, 37 NRC 72, 

81 (1993); Shieldalloy Metallurgical Corp., LBP-99-12, 49 NRC 155, 158 (1999). 

JUNE 2011 PREHEARING MATTERS 53
In order to establish the factual predicates for the various standing elements, 

when legal representation is present, it is generally necessary for the individual to 

set forth any factual claims in a sworn affidavit. Shieldalloy Metallurgical Corp., 

LBP-99-12, 49 NRC 155, 158 (1999). Petitioner’s allegations regarding its 

increased risk, supported by two detailed affidavits and other evidentiary exhibits, 

are sufficiently concrete and particular to pass muster for standing. North 

Atlantic Energy Serv. Corp. (Seabrook Station, Unit 1), CLI-99-6, 49 NRC 201, 

215 (1999). 

The Commission applies judicial tests of “injury-in-fact” and “arguably within the 

zone of interest” to determine standing. “Injury” as a premise to standing must 

come from an action, in contrast to failure to take an action. One who claims that 

an order in an enforcement action should have provided for more extensive relief 

does not show injury from relief granted and thus does not have standing to 

contest the order. Pub. Serv. Co. of Indiana (Marble Hill Nuclear Generating 

Station, Units 1 & 2), CLI-80-10, 11 NRC 438, 439 (1980); Maine Yankee Atomic 

Power Co. (Maine Yankee Atomic Power Station), CLI-04-5, 59 NRC 52, 57-58 

(2004). 

In addressing the matter of standing in a decommissioning proceeding, to 

establish “injury-in-fact” it must be shown how any alleged harmful radiological, 

environmental, or other legally cognizable effects that will arise from activities 

under the decommissioning plan at issue will cause injury to each individual or 

organizational petitioner or, in the case of an organization relying upon 

representational standing, the members it represents. Babcock & Wilcox (Apollo, 

Pennsylvania Fuel Fabrication Facility), LBP-92-24, 36 NRC 149, 153 (1992). 

A petitioner must allege an “injury-in-fact” which he will suffer as a result of a 

Commission decision. He may not derive standing from the interests of another 

person or organization, nor may he seek to represent the interests of others 

without their express authorization. Florida Power & Light Co. (St. Lucie 

Nuclear Power Plant, Units 1 & 2), CLI-89-21, 30 NRC 325, 329-30 (1989); 

Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), 

LBP-01-6, 53 NRC 138, 147 (2001). 

Under certain circumstances, even if a current proceeding is separate from an 

earlier proceeding, the Commission may refuse to apply its rules of procedure in 

an overly formalistic manner by requiring that petitioners participating in the 

earlier proceeding must again identify their interests to participate in the current 

proceeding. Georgia Inst. of Tech. (Georgia Tech Research Reactor), 

LBP-95-14, 42 NRC 5, 7 (1995) (citing Georgia Power Co. (Vogtle Electric 

Generating Plant, Units 1 & 2) LBP-91-33, 34 NRC 138 (1991)). 

2.10.4.1.1.1 “Injury-in-fact” Test 

A petitioner who supports an application must, of course, show the potential 

for injury-in-fact to its interests before intervention can be granted. Such a 

petitioner must particularize a specific injury that it or its members would or 

might sustain should the application it supports be denied or should the 

license it supports be burdened with conditions or restrictions. Nuclear Eng’g 

PREHEARING MATTERS 54 JUNE 2011
Co., Inc. (Sheffield, III. Low-Level Radioactive Waste Disposal Site), 

ALAB-473, 7 NRC 737, 743 (1978). 

For purposes of assessing injury-in-fact (or any other aspect of standing), a 

hearing petitioner’s factual assertions, if uncontroverted, must be accepted. 

Apollo, 37 NRC at 82. In evaluating a petitioner’s claims of injury-in-fact, care 

must be taken to avoid “the familiar trap of confusing the standing 

determination with the assessment of petitioner’s case on the merits.” Apollo, 

37 NRC at 82, citing City of Los Angeles v. Nat’l Highway Traffic Safety 

Admin., 912 F.2d 478, 495 (D.C. Cir. 1990) (citations omitted), cert. denied, 

117 L. Ed. 2d 460 (1992); Sequoyah Fuels Corp. (Gore, Oklahoma Site 

Decontamination and Decommissioning Funding), LBP-94-5, 39 NRC 54, 68 

(1994), aff’d, CLI-94-12, 40 NRC 64 (1994); Sequoyah Fuels Corp. (Gore, 

Oklahoma, Site Decommissioning), CLI-01-02, 53 NRC 2, 15 (2001). 

The test is a cognizable interest that might be adversely affected by one or 

another outcome of the proceeding. No interest is to be presumed. There 

must be a concrete demonstration that harm could flow from a result of the 

proceeding. Nuclear Eng’g Co., Inc. (Sheffield, III. Low-Level Radioactive 

Waste Disposal Site), ALAB-473, 7 NRC 737, 743 (1978). The alleged injury, 

which may be either actual or threatened, must be both concrete and 

particularized, not “conjectural” or “hypothetical.” As a result, standing has 

been denied when the threat of injury is too speculative. Sequoyah Fuels 

Corp. & Gen. Atomics (Gore, Oklahoma Site), CLI-94-12, 40 NRC 64, 72 

(1994). 

“[I]njury-in-fact cannot be asserted on the footing of nothing more than a broad 

interest-shared with many others – in environmental preservation.” Int’l 

Uranium (USA) Corp. (White Mesa Uranium Mill), LBP-02-3, 55 NRC 35, 39 

(2002), citing Sierra Club v. Morton, 405 U.S. 727, 734-35 (1972). The 

Commission has likewise determined that a general interest in “law 

observance” is insufficient to establish injury-in-fact. Int’l Uranium (USA) 

Corp. (White Mesa Uranium Mill), LBP-02-3, 55 NRC 35, 39 (2002), citing Ten 

Applications for Low-Enriched Uranium Exports to EURATOM Member 

Nations, CLI-77-24, 6 NRC 525, 531 (1997) (citing Warth v. Seldin, 

422 U.S. 490, 499 (1975)). 

It is not necessary that every injury asserted by petitioners be sufficiently 

concrete to satisfy these requirements; it is enough if some of the injuries 

claimed are, or result in, clearly adverse effects on petitioners. Kelley v. Selin, 

42 F.3d 1501, 1507 (6th Cir. 1995), citing Duke Power Co. v. Carolina Envtl.

Study Group, 438 U.S. 59 (1978). Carolina Power & Light Co. (Shearon 

Harris Nuclear Power Plant), LBP-99-25, 50 NRC 25, 31 (1999). An injury-infact must be “actual,” “direct,” and “genuine,” but need not have already 

occurred. Potential or imminent injury is sufficient; there need only be a real 

possibility of concrete harm to a petitioner’s interest as a result of the 

proceeding. Quivira Mining Co. (Ambrosia Lake Facility, Grants, New 

Mexico), LBP-97-20, 46 NRC 257, 265 (1997), aff’d, CLI-98-11, 48 NRC 1 

(1998), aff’d sub nom. Envirocare, Inc. v. NRC, 194 F.3d 72 (D.C. Cir. 1999). 

JUNE 2011 PREHEARING MATTERS 55
It is unlikely that petitioners will obtain a hearing on confirmatory enforcement 

orders because it is difficult to establish “injury-in-fact” and standing. An 

individual or organization must be able to show that he/she would be 

adversely affected by the existing order, not as compared to a hypothetical 

order that the petitioner believes would be an improvement. Nuclear Fuel 

Servs., Inc. (Special Nuclear Facility), LBP-07-16, 66 NRC 277, 285 (2007). 

The inquiry is whether the petitioner will be affirmatively harmed by the order. 

Id. at 300. “Boards are not to consider whether [enforcement] orders need 

strengthening” since those claims do not address whether the order should be 

sustained. Id. at 306. 

A petitioner must establish a causal nexus between the alleged injury and the 

challenged action. Cleveland Elec. Illuminating Co. (Perry Nuclear Power 

Plant, Unit 1), LBP-92-4, 35 NRC 114, 122 (1992); Apollo, supra, 37 NRC at 

81; Northeast Nuclear Energy Co. (Millstone Nuclear Power Station, Unit 3), 

LBP-98-22, 48 NRC 149, 155 (1998); Commonwealth Edison Co. (Zion 

Nuclear Power Station, Units 1 & 2), LBP-98-27, 48 NRC 271, 276 (1998); 

Molycorp, Inc. (Washington, Pennsylvania, Temporary Waste Storage & Site 

Decommissioning Plan), LBP-00-10, 51 NRC 163, 167 (2000). When a 

petitioner is challenging the legality of government regulation of someone 

else, injury-in-fact as it relates to factors of causation and redressability is 

“ordinarily ‘substantially more difficult’ to establish.” Babcock & Wilcox

(Apollo, Pennsylvania Fuel Fabrication Facility), LBP-93-4, 37 NRC 72, 

81 n.20 (1993). 

In the case of an amendment to an existing and already licensed facility with 

ongoing operations, a petitioner’s challenge must show how that amendment 

will cause a distinct new harm or threat that is separate and apart from already 

licensed activities. Int’l Uranium (USA) Corp. (White Mesa Uranium Mill), 

CLI-01-21, 54 NRC 247, 251 (2001), citing Int’l Uranium (USA) Corp. (White 

Mesa Uranium Mill), 54 NRC 27 (2000); see also Commonwealth Edison Co.

(Zion Nuclear Power Station, Units 1 & 2), CLI-99-4, 49 NRC 185, 192 (1999). 

“Conclusory allegations about potential radiological harm from the facility in 

general, which are not tied to the specific amendment at issue, are insufficient 

to establish standing.” Int’l Uranium (USA) Corp. (White Mesa Uranium Mill), 

CLI-01-21, 54 NRC 247, 251 (2001). 

It must be demonstrated that the injury is fairly traceable to the proposed 

action. Such a determination is not dependent on whether the cause of the 

injury flows directly from the challenged action, but whether the chain of 

causation is plausible. Sequoyah Fuels Corp. & Gen. Atomics (Gore, 

Oklahoma Site), CLI-94-12, 40 NRC 64, 75 (1994); Commonwealth Edison 

Co. (Zion Nuclear Power Station, Units 1 & 2), LBP-98-27, 48 NRC 271 

(1998); Pa’ina Hawaii, LLC, LBP-06-4, 63 NRC 99, 105 (2006). It must be 

likely as opposed to merely speculative that the injury will be redressed by a 

favorable decision. Sequoyah Fuels, CLI-94-12, 40 NRC at 76; Pa’ina, 

LBP-06-4, 63 NRC at 105. 

In connection with an export application involving a one-time export, under 

armed guard, of a limited quantity of plutonium oxide, petitioners did not 

establish a nexus between the agency’s actions and their alleged injury 

PREHEARING MATTERS 56 JUNE 2011
because the alleged harm – the attack or diversion of nuclear material by 

terrorist organizations – does not result from the grant or denial of the export 

license; rather, the remote potential for harm is dependent on the unlawful 

intervening acts of unknown third parties, and “the Commission’s responsibility 

for considering the possibility of diversion as one aspect of protecting the 

common defense and security of the United States does not establish that 

diversion would cause any concrete personal or direct harm to petitioners 

which would entitle them to a voice in its proceedings.” U.S. Dep’t of Energy, 

CLI-04-17, 59 NRC 357, 365-366 (2004) (quoting Edlow Int’l Co. (Agent for 

the Government of India on Application to Export Special Nuclear Material), 

CLI-76-6, 3 NRC 563, 577 (1976)). 

To attain standing, petitioners should show a plausible way in which activities 

licensed by the challenged amendment would injure them. The injury must be 

due to the amendment and not to the license itself, which was granted 

previously. The injury must occur to individuals whose residence is 

demonstrated in the filing and whom the organizations are authorized to 

represent. Energy Fuels Nuclear, Inc. (White Mesa Uranium Mill), LBP-97-10, 

45 NRC 429, 431 (1997). 

A claim that an applicant has violated or will violate the law does not create a 

presumption of standing, without some showing that the violation could harm 

the petitioner. Int’l Uranium (USA) Corp. (White Mesa Uranium Mill), 

CLI-01-18, 54 NRC 27, 30 (2001). 

To establish the requisite “injury-in-fact” for standing, a petitioner must have a 

“real stake” in the outcome, that is, a genuine, actual, or direct stake, but not 

necessarily a substantial stake in the outcome. An organization meets this 

requirement where it has identified one of its members who possesses the 

requisite standing. Houston Lighting & Power Co. (South Texas Project, 

Units 1 & 2), LBP-79-10, 9 NRC 439, 447-448 (1979). 

For a case holding that a petitioner cannot assert the rights of third parties as 

a basis for intervention, see Detroit Edison Co. (Enrico Fermi Atomic Power 

Plant, Unit 2), LBP-78-11, 7 NRC 381, 387, aff’d, ALAB-470, 7 NRC 473 

(1978) (mother attempted to assert the rights of her son who attended medical 

school near a proposed facility). 

A statement of asserted injury which is insufficient to found a valid contention 

may well be adequate to provide a basis for standing. Consumers Power Co.

(Palisades Nuclear Plant), LBP-79-20, 10 NRC 108, 115 (1979); Sequoya 

Fuels Corp. (Gore, Oklahoma Site Decommissioning), LBP-99-46, 

50 NRC 386, 394 (1999). 

2.10.4.1.1.1.A Future/Hypothetical/Academic Injury 

An alleged future injury which is realistically threatened and immediate, and 

not merely speculative, may establish standing to intervene. Cleveland 

Elec. Illuminating Co. (Perry Nuclear Power Plant, Unit 1), LBP-92-4, 

35 NRC 114, 123 (1992). See Envirocare of Utah, Inc., LBP-92-8, 

JUNE 2011 PREHEARING MATTERS 57
35 NRC 167, 178-79 (1992); Sequoyah Fuels Corp. & Gen. Atomics (Gore, 

Oklahoma Site), CLI-94-12, 40 NRC 64, 74 (1994). 

An abstract, hypothetical injury is insufficient to establish standing to 

intervene. Ohio Edison Co. (Perry Nuclear Power Plant, Unit 1) and 

Cleveland Elec. Illuminating Co. & Toledo Edison Co. (Perry Nuclear 

Power Plant, Unit 1; Davis-Besse Nuclear Power Station, Unit 1), 

LBP-91-38, 34 NRC 229, 252 (1991), aff’d in part on other grounds and 

appeal denied, CLI-92-11, 36 NRC 47 (1992); Int’l Uranium Corp. (White 

Mesa Uranium Mill), CLI-98-6, 47 NRC 116 (1998); Florida Power & Light 

Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), LBP-08-18, 

68 NRC 533, 540 (2008). 

A petitioner who supports an application must, of course, show the 

potential for injury-in-fact to its interests before intervention can be granted. 

Such a petitioner must particularize a specific injury that it or its members 

would or might sustain should the application it supports be denied or 

should the license it supports be burdened with conditions or restrictions. 

Nuclear Eng’g Co., Inc. (Sheffield, Ill. Low-Level Radioactive Waste 

Disposal Site), ALAB-473, 7 NRC 737, 743 (1978). 

A petitioner need not establish that injury will inevitably result from the 

proposed action to show an injury-in-fact, but only that it may be injured in 

fact by the proposed action. Gulf States Utils. Co., et al. (River Bend 

Station, Unit 1), LBP-94-3, 39 NRC 31, aff’d, CLI-94-10, 40 NRC 43 (1994). 

Purely academic interests are not encompassed by 10 C.F.R. § 2.309(c) 

which states that any person whose interest is affected by a proceeding 

shall file a written petition for leave to intervene. Commonwealth Edison 

Co. (Dresden Nuclear Power Station, Unit 1), LBP-82-52, 16 NRC 183, 185 

(1982). See generally, CLI-81-25, 14 NRC 616 (1981), (guidelines for 

Board). A mere academic interest in the outcome of a proceeding will not 

confer standing. The petitioner must allege some injury that has or will 

occur from the action taken as a result of the proceeding. Skagit/Hanford, 

supra, 15 NRC at 743. 

Concern that “bad precedent” may be set in a proceeding that could impact 

the petitioner’s ability to contest similar matters in another proceeding is a 

“generalized grievance” that is “too academic” to provide the requisite 

injury-in-fact needed for standing as of right. See Ohio Edison Co. (Perry 

Nuclear Power Plant, Unit 1), LBP-91-38, 34 NRC 229, 248-49 (1991), aff’d 

on other ground, CLI-92-11, 36 NRC 47 (1992), petition for review 

dismissed, City of Cleveland v. NRC, 68 F.3d 1361 (D.C. Cir. 1995); Gen.

Pub. Utils. Nuclear Corp. (Oyster Creek Nuclear Generating Station), LBP96-23, 44 NRC 143, 159 (1996). 

2.10.4.1.1.1.B Economic/Competitive Injury 

A petitioner who suffers only economic injury (i.e., harm to competition), 

lacks standing to bring a NEPA-based challenge to agency action. Int’l 

Uranium (USA) Corp. (Receipt of Material from Tonawanda, New York), 

PREHEARING MATTERS 58 JUNE 2011
CLI-98-23, 48 NRC 259 (1998); Quivira Mining Co. (Ambrosia Lake 

Facility, Grants, NM), CLI-98-11, 48 NRC 1 (1998); both decisions were 

sustained on review in Envirocare, Inc. v. NRC, 194 F.3d 72 

(D.C. Cir. 1999); Dep’t of the Army, LBP-99-38, 50 NRC 227, 230 (1999); 

Int’l Uranium (USA) Corp. (Materials License Amendment), CLI-00-4, 51 

NRC 88 (2000) (affirming two dismissals on basis that “competitor” injury is 

insufficient as ground for standing to intervene in adjudicatory process). 

Although competitive injury may constitute injury-in-fact in an NRC 

licensing proceeding, a party relying for its standing on such injury must 

also demonstrate that it arguably falls within the zone of interests protected 

or regulated by the AEA or NEPA. Quivira Mining Co. (Ambrose Lake 

Facility, Grants, New Mexico), LBP-97-20, 46 NRC 257, 262 (1997), aff’d, 

CLI-98-11, 48 NRC 1 (1998), aff’d sub nom. Envirocare, Inc. v. NRC, 

194 F.3d 72 (D.C. Cir. 1999). 

For antitrust purposes, the interest of a ratepayer or consumer of electricity 

is not necessarily beyond the zone of interests protected by Section 105 of 

the AEA. However, the petitioner must still demonstrate that an injury to its 

economic interests as a ratepayer would be the proximate result of 

anticompetitive activities by the licensee. Detroit Edison Co. (Enrico Fermi 

Atomic Power Plant, Unit 2), LBP-78-13, 7 NRC 583, 592-593 (1978). 

For an amendment authorizing transfer of 20% of the ownership of a 

facility, allegations that a petitioner would “receive” only 80% of the 

electricity produced by the plant rather than the 100% “assumed in the 

‘NEPA balance’” were insufficient to give standing as a matter of right 

because it was an economic injury outside the zone of interests to be 

protected and the NEPA cost-benefit analysis considers the overall benefits 

to society rather than benefits to an isolated portion. Detroit Edison Co.

(Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-11, 7 NRC 381, 390-90, 

aff’d, ALAB-470, 7 NRC 473 (1978). 

A claim of insufficient funds to ensure safe operation and shutdown, posing 

a threat of radiological harm to a co-owner’s interest in a facility, as a result 

of thin capitalization, inability to fund operations because of potential 

litigation liability and financial insulation of shareholders from potential 

costs is sufficient to establish standing. GPU Nuclear, Inc., et al. (Oyster 

Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 194 (2000). 

For the views of various Appeal Board members on whether a petitioner 

has the requisite interest where he has an economic interest which 

competes with nuclear power in generating electricity, see the three 

opinions in Long Island Lighting Co. (Jamesport Nuclear Power Station), 

ALAB-292, 2 NRC 631 (1975). 

In a license amendment proceeding to allow two electric cooperatives to 

become co-owners of a nuclear plant, interests of a petitioner which 

stemmed from membership in the cooperative (“loss of equity,” “threat of 

bankruptcy,” “higher rates,” “cost of replacement power,” or “loss of 

property taxes”) were insufficient to support standing as a matter of right. 

JUNE 2011 PREHEARING MATTERS 59
Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-11, 

7 NRC 381, 386, aff’d, ALAB-470, 7 NRC 473 (1978). 

Economic injury to ratepayers is not sufficient to confer standing upon state 

commissions to challenge proposed license revocation because such injury 

results from termination of the project and not Commission “action,” and 

because such injury cannot be redressed by favorable Commission action. 

Northern States Power Co. (Tyrone Energy Park, Unit 1), CLI-80-36, 12 

NRC 523, 526-527 (1980) (views of Chairman Ahearn and Commissioner 

Hendrie). 

NRC’s interpretation of the AEA to preclude intervention by competitor who 

alleged only economic injury was reasonable, regardless of whether 

proposed intervenor could meet judicial standing requirements, in view of 

Act’s purpose of increasing private competition, and regulatory burdens 

that granting such standing would impose on the agency. Envirocare of 

Utah, Inc. v. NRC, 194 F.3d 72, 77-8 (D.C. Cir. 1999). 

2.10.4.1.1.1.C Health and Safety/Environmental Injury 

A petitioner has not shown any reasonable nexus between theirself and 

any purported radiological impacts when, despite assertions about potential 

facility-related airborne and waterborne radiological contacts, they have not 

delineated these with enough concreteness to establish some impact on 

them that is sufficient to provide them with standing. By not providing any 

information that indicates whether water-related activities are being 

conducted upstream or downstream from a facility and by describing other 

activities only using vague terms such as “near,” “close proximity,” or “in 

the vicinity” of the facility at issue, the petitioner fails to carry their burden of 

establishing the requisite “injury-in-fact.” Atlas Corp. (Moab, Utah Facility), 

LBP-97-9, 45 NRC 414, 425-26 (1997). 

Allegations that a plant will cause radiologically contaminated food which a 

person may consume are too remote and too generalized to provide a 

basis for standing to intervene. Philadelphia Elec. Co. (Limerick 

Generating Station, Units 1 & 2), LBP-82-43A, 15 NRC 1423, 1449 (1982); 

Boston Edison Co. (Pilgrim Nuclear Power Station), LBP-85-24, 

22 NRC 97, 98, aff’d on other grounds, ALAB-816, 22 NRC 461 (1985). 

A request to transfer operating authority under a full-power license for a 

power reactor may be deemed an action involving “clear implications for 

the offsite environment,” for purposes of determining threshold injury. 

Georgia Power Co., et al. (Vogtle Electric Generating Plant, Units 1 & 2), 

CLI-93-16, 38 NRC 25, 35 (1993). 

An alleged injury to health and safety, shared equally by all those residing 

near a reactor, can form the basis for standing. Philadelphia Elec. Co.

(Limerick Generating Station, Units 1 & 2), LBP-82-43A, 15 NRC 1423, 

1434 (1982). 

PREHEARING MATTERS 60 JUNE 2011
Relative to a threshold standing determination, even minor radiological 

exposures resulting from a proposed license activity can be enough to 

create the requisite injury-in-fact. See Yankee Atomic Elec. Co. (Yankee 

Nuclear Power Station), LBP-96-2, 43 NRC 61, 70, aff’d, CLI-96-7, 

43 NRC 235, 246-48 (1996); Gen. Pub. Utils. Nuclear Corp. (Oyster Creek 

Nuclear Generating Station), LBP-96-23, 44 NRC 143, 158 (1996); North 

Atlantic Energy Serv. Corp. (Seabrook Station, Unit 1), LBP-98-23, 

48 NRC 157, 162-63 (1998); Pa’ina Hawaii, LLC, LBP-06-4, 63 NRC 99, 

104 (2006). 

2.10.4.1.1.1.D Injury to Legal and/or Constitutional Rights 

An alleged injury to a purely legal interest is sufficient to support standing. 

Thus, a petitioner derived standing by alleging that a proposed license 

amendment would deprive it of the right to notice and opportunity for 

hearing provided by § 189.a. of the AEA. Cleveland Elec. Illuminating Co.

(Perry Nuclear Power Plant, Unit 1), LBP-90-15, 31 NRC 501, 506 (1990), 

reconsid. denied, LBP-90-25, 32 NRC 21 (1990). But see Cleveland Elec.

Illuminating Co. (Perry Nuclear Power Plant, Unit 1), LBP-92-4, 35 NRC 

114, 123-26 1992), where the Licensing Board in a subsequent Perry

license amendment proceeding declined to follow the ruling of the previous 

Perry Board, (LBP-90-15 and LBP-90-25), supra. The Perry Board (LBP92-4) held that § 189.a. of the AEA does not give a petitioner an absolute 

right to intervene in NRC proceedings, and only grants participation rights 

to a petitioner who has first established standing. An assertion of a 

procedural right to participate in NRC proceedings as an end in itself is 

insufficient to establish standing without a demonstration of a causal nexus 

with a substantive regulatory injury. But this was subsequently overturned 

by Commission in CLI-93-21 which essentially affirmed the earlier Perry

decision and found that standing may be based upon the alleged loss of a 

procedural right, as long as the procedure at issue is designed to protect 

against a threatened concrete injury, and the loss of rights to notice, 

opportunity for a hearing and opportunity for judicial review constitute a 

discrete injury. Cleveland Elec. Illuminating Co. (Perry Nuclear Power 

Plant, Unit 1), CLI-93-21, 38 NRC 87, 93-94 (1993). 

A claim of personal injury that allegedly resulted from mismanagement 

would not result from the proposed extension of the construction permit 

completion date. Nor is such an injury protected under the AEA or NEPA. 

This grievance is in the area of employment rights and would not be 

redressed by a decision favorable to petitioners. A desire to expose 

alleged mismanagement is not an injury-in-fact and does not enhance 

petitioner’s position for standing. Texas Utils. Elec. Co., et al., (Comanche 

Peak Steam Electric Station, Unit 2), LBP-92-37, 36 NRC 370, 375 (1992). 

An individual alleging that violation of constitutional provisions by 

governmental actions based on a statute will cause him identifiable injury 

should have standing to challenge the constitutionality of those actions. 

Philadelphia Elec. Co. (Limerick Generating Station, Units 1 & 2), 

LBP-82-43A, 15 NRC 1423, 1445 (1982), citing Chicano Police Officer’s 

Ass’n v. Stover, 526 F.2d 431, 436 (10th Cir. 1975), vacated and remanded 

JUNE 2011 PREHEARING MATTERS 61
on other grounds, 426 U.S. 994 (1976), holding on standing reaffirmed, 

552 F.2d 918 (10th Cir. 1977); 3 K. Davis Administrative Law Treatise

22.08, at 240 (1958). 

2.10.4.1.1.1.E Injury Due to Proximity to a Facility 

A petitioner may base its standing upon a showing that its residence, or 

that of its members, is within the geographical zone that might be affected 

by an accidental release of fission products. Houston Lighting & Power 

Co. (South Texas Project, Units 1 & 2), LBP-79-10, 9 NRC 439, 443 

(1979). See also Detroit Edison Co. (Enrico Fermi Atomic Power Plant, 

Unit 2), LBP-79-1, 9 NRC 73, 78 (1979); Entergy Nuclear Generation Co. 

& Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP06-23, 64 NRC 257, 270 (2006). Close proximity has always been 

deemed enough standing alone, to establish the requisite interest for 

intervention. The incremental risk of reactor operation for an additional 

13–15 years is sufficient to invoke the presumption of injury-in-fact for 

persons residing within 10 to 20 miles of the facility. Pacific Gas & Elec.

Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), LBP-93-1, 

37 NRC 5 (1993). In such a case the petitioner does not have to show that 

his concerns are well-founded in fact, as such concerns are addressed 

when the merits of the case are reached. Distances of as much as 50 

miles have been held to fall within this zone. Virginia Elec. & Power Co.

(North Anna Nuclear Power Station, Units 1 & 2), ALAB-522, 9 NRC 54, 56 

(1979); Duquesne Light Co. (Beaver Valley Power Station, Unit 2), 

LBP-84-6, 19 NRC 393, 410, 429 (1984), citing South Texas, supra, 

9 NRC at 443-44; Enrico Fermi, supra, 9 NRC at 78; Tennessee Valley 

Auth. (Watts Bar Nuclear Plant, Units 1 & 2), ALAB-413, 5 NRC 1418, 

1421 n.4 (1977); Texas Utils. Generating Co. (Comanche Peak Steam 

Electric Station, Units 1 & 2), LBP-79-18, 9 NRC 728, 730 (1979); Pilgrim 

Nuclear Power Station, LBP-06-23, 64 NRC at 270; Entergy Nuclear 

Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), LBP-08-13, 

68 NRC 43, 60 (2008). 

An intervention petitioner who resides near a nuclear facility need not show 

a causal relationship between injury to its interest and the licensing action 

being sought in order to establish standing. Armed Forces Radiobiology 

Research Inst. (Cobalt-60 Storage Facility), ALAB-682, 16 NRC 150, 153 

(1982), citing Virginia Elec. & Power Co. (North Anna Nuclear Power 

Station, Units 1 & 2), ALAB-522, 9 NRC 54, 57 n.5 (1979); Georgia Inst. of 

Tech. (Georgia Tech Research Reactor, Atlanta, Ga.), LBP-95-6, 

41 NRC 281, 287 (1995). 

At the NRC, the 50-mile “proximity presumption” is simply a shortcut for 

determining standing in certain cases. The presumption rests on the NRC 

finding, in construction permit and operating license cases, that persons 

living within the roughly 50-mile radius of the facility “face a realistic threat 

of harm” if a release from the facility of radioactive material were to 

occur. Calvert Cliffs 3 Nuclear Project, LLC and Unistar Nuclear Operating 

Services, LLC (Combined License Application for Calvert Cliffs, Unit 3), 

CLI-09-20, 70 NRC __ (Oct. 13, 2009) (slip op.at 6-7). 

PREHEARING MATTERS 62 JUNE 2011
In an operating license amendment proceeding, a petitioner cannot base 

his or her standing simply upon a residence or visits near the plant, unless 

the proposed action quite obviously entails an increased potential for offsite 

consequences. It is incumbent upon the petitioner to provide some 

“plausible chain of causation,” some scenario suggesting how the license 

amendments would result in a distinct new harm or threat. A petitioner 

cannot seek to obtain standing in a license amendment proceeding simply 

by enumerating the proposed license changes and alleging without 

substantiation that the charges will lead to offsite radiological 

consequences. Commonwealth Edison Co. (Zion Nuclear Power Station, 

Units 1 & 2), CLI-99-4, 49 NRC 185, 191 (1999); see also Tennessee 

Valley Auth. (Sequoyah Nuclear Plant, Units 1 & 2; Watts Bar Nuclear 

Plant, Unit 1), LBP-02-02-14, 56 NRC 15, 26 (2002); Florida Power & Light 

Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), LBP-08-18, 

68 NRC 533, 541 (2008). 

Petitioners may have standing if they reside close enough to a planned 

project so that there is reasonable apprehension of injury. When the staff 

delays issuance of the full license that is applied for, it is an indication of 

the reasonableness of petitioners’ apprehensions of injury. Hydro 

Resources, Inc. (2929 Coors Rd., Suite 101, Albuquerque, NM 87120), 

LBP-98-9, 47 NRC 261 (1998); Florida Power & Light Co. (Turkey Point 

Nuclear Generating Plant, Units 3 & 4), LBP-01-6, 53 NRC 138, 146-147 

(2001). 

“A petitioner may base its standing upon a showing that his or her 

residence, or that of its members, is ‘within the geographical zone that 

might be affected by an accidental release of fission products.’ Louisiana 

Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-125, 

6 AEC 371, 371 n.6 (1973).” Detroit Edison Co. (Enrico Fermi Atomic 

Power Plant, Unit 2), LBP-79-1, 9 NRC 73, 78 (1979). Distances of as 

much as 50 miles have been held to fall within this zone. Tennessee 

Valley Authority (Watts Bar Nuclear Plant, Units 1 & 2), ALAB-413, 

5 NRC 1418, 1421 n.4 (1977) (50 miles); Northern States Power Co.

(Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-107, 

6 AEC 188, 193 (1973) (40 miles); Fermi, supra (35 miles); Dominion 

Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 2), 

LBP-03-3, 57 NRC 45, 61-63 (2003) (finding that petitioner living two miles 

from plant demonstrated requisite potential impact by proposed license 

amendments, while petitioner living 23 miles away did not). 

Residence or activities within 10 miles of a facility (and in one case 

17 miles from a facility) have been found sufficient to establish standing in 

a case involving the proposed expansion in capacity of a spent fuel pool. 

See Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear 

Power Station), LBP-87-7, 25 NRC 116, 118 (1987); see also Florida 

Power & Light Co. (St. Lucie Nuclear Power Plant, Unit 1), LBP-88-10A, 

27 NRC 452-454-55 (1988), aff’d, ALAB-893, 27 NRC 627 (1988); Carolina 

Power & Light Co. (Shearon Harris Nuclear Power Plant), LBP-99-25, 

50 NRC 25, 29-31 (1999); Northeast Nuclear Energy Co. (Millstone 

Nuclear Power Station, Unit 3), LBP-00-2, 51 NRC 25 (2000). 

JUNE 2011 PREHEARING MATTERS 63
A petitioner which bases its standing on its proximity to a nuclear facility 

must describe the nature of its property or residence and its proximity to 

the facility, and should describe how the health and safety of the petitioner 

may be jeopardized. Northern States Power Co. (Pathfinder Atomic Plant), 

LBP-89-30, 30 NRC 311, 315 (1989). 

A petitioner who resides far from a facility cannot acquire standing to 

intervene by asserting the interests of a third party who will be near the 

facility but who is not a minor or otherwise under a legal disability which 

would preclude his own participation. Detroit Edison Co. (Enrico Fermi 

Atomic Power Plant, Unit 2), ALAB-470, 7 NRC 473, 474 n.1 (1978). 

The Licensing Board refused to allow intervention on the basis of the 

possibility of petitioners’ consuming produce, meat products, or fish 

originating within 50 miles of the site. Washington Public Power Supply 

System (WPPSS Nuclear Project No. 2), LBP-79-7, 9 NRC 330, 336 

(1979). 

A petitioner owning and renting out farmland 10 to 15 miles from the site 

and visiting the farm occasionally was held not to meet standing 

requirements. WPPSS, supra, 9 NRC at 336-338. 

One living 26 miles from a plant cannot claim, without more, that his 

aesthetic interests are harmed. Conjectural interests do not provide a 

basis for standing. Nor does economic harm or one’s status as a ratepayer 

provide a basis for standing. Houston Lighting & Power Co. (Allens Creek 

Nuclear Generating Station, Unit 1), ALAB-582, 11 NRC 239, 242, 243 n.8 

(1980). 

Intervenors who fail to provide specific information regarding either the 

geographic proximity or timing of their visits will only complicate matters for 

themselves. In many instances, a lack of specificity will be sufficient to 

reject claims of standing. Private Fuel Storage, L.L.C., CLI-99-10, 

49 NRC 318, 324 (1999); Shieldalloy Metallurgical Corp., CLI-99-12, 

49 NRC 347, 355 (1999). 

A bare claim that a challenged reactor license amendment will impact the 

health, safety and financial interests of petitioners who reside within 

50 miles of the facility fails to “set forth with particularity” a statement that 

could grant standing. Commonwealth Edison Co. (Zion Nuclear Power 

Station, Units 1 & 2), CLI-00-5, 51 NRC 90, 98 (2000). 

Although residence within 50 miles is not an explicit requirement for 

intervention by right, that limit is consistent with precedent. Without a 

showing that a plant has a far greater than ordinary potential to injure 

outside a 50-mile limit, a person has a weak claim to the protection of a full 

adjudicatory proceeding; rulemaking or lobbying Congress are available to 

protect public interests of a general nature. Cleveland Electric Illuminating 

Co. (Perry Nuclear Power Plant, Units 1 & 2), LBP-81-24, 14 NRC 175, 

178-179 (1981); Yankee Atomic Electric Co. (Yankee Nuclear Power 

Station), CLI-94-3, 39 NRC 95, 102 (1994); Florida Power & Light Co.

PREHEARING MATTERS 64 JUNE 2011
(Turkey Point Nuclear Generating Plant, Units 3 & 4), LBP-01-6, 

53 NRC 138, 149 (2001); see also Duke Energy Carolinas, LLC

(William States Lee III Nuclear Station, Units 1 & 2), LBP-08-17, 

68 NRC 431, 438 (2008); Tennessee Valley Authority (Bellefonte Nuclear 

Power Plant, Units 3 & 4), LBP-08-16, 68 NRC 361, 378 (2008). 

However, the fact that a petitioner may reside within a 50-mile radius of a 

facility will not always be sufficient to establish standing to intervene. A 

Board will consider the nature of the proceeding, and will apply different 

standing considerations to proceedings involving construction permits or 

operating licenses than to proceedings involving license amendments. 

Thus, in a license amendment proceeding involving an existing facility’s 

fuel pool, a Board denied intervention to a petitioner who resided 43 miles 

from the facility because the petitioner failed to demonstrate that the risk of 

injury from the fuel pool extended that far from the facility. Boston Edison 

Co. (Pilgrim Nuclear Power Station), LBP-85-24, 22 NRC 97, 98-99 (1985), 

aff’d on other grounds, ALAB-816, 22 NRC 461 (1985). But see, Northeast 

Nuclear Energy Co. (Millstone Nuclear Power Station, Unit 2), LBP-92-28, 

36 NRC 202, 213 (1992) [intervention granted to petitioners residing within 

one to three miles after demonstrating the potential for injury from 

corrective redesign of the spent fuel pool]. 

A petitioner’s residence within 50 miles of a nuclear facility was insufficient, 

by itself, to establish standing to intervene in an exemption proceeding 

where the exemption at issue involved the protection of workers in the 

facility and did not have the clear potential for offsite consequences 

affecting the general population. Florida Power and Light Co. (St. Lucie 

Nuclear Power Plant, Units 1 & 2), CLI-89-21, 30 NRC 325, 329-30 (1989); 

Arizona Public Service Co. (Palo Verde Nuclear Generating Station, 

Units 1, 2, & 3), LBP-91-4, 33 NRC 153, 156-57 (1991) (proposed license 

amendments involved potential offsite safety consequences). See Long 

Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-91-1, 

33 NRC 15, 29, 30 (1991); Long Island Lighting Co. (Shoreham Nuclear 

Power Station, Unit 1), LBP-91-7, 33 NRC 179, 193, 194 (1991); Long 

Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-91-23, 

33 NRC 430, 437 (1991); Cleveland Electric Illuminating Co. (Perry Nuclear 

Power Plant, Unit 1), LBP-92-4, 35 NRC 114, 122 (1992); Sacramento 

Municipal Utility District (Rancho Seco Nuclear Generating Station), 

LBP-92-23, 36 NRC 120, 129-130 (1992); Northeast Nuclear Energy Co.

(Millstone Nuclear Power Station, Unit 2), LBP-92-28, 36 NRC 202, 

212-214 (1992); Northeast Nuclear Energy Co. (Millstone Nuclear Power 

Station, Unit 3), LBP-98-22, 48 NRC 149 (1998); Commonwealth Edison 

Co. (Zion Nuclear Power Station, Units 1 & 2), LBP-98-27, 48 NRC 271 

(1998). 

Residence more than 75 miles from a plant will not alone establish an 

interest sufficient for standing as a matter of right. Philadelphia Electric Co.

(Limerick Generating Station, Units 1 & 2), LBP-82-43A, 15 NRC 1423, 

1447 (1982), citing Dairyland Power Cooperative (LaCrosse Boiling Water 

Reactor), ALAB-497, 8 NRC 312, 313 (1978); Public Service Co. of 

JUNE 2011 PREHEARING MATTERS 65
Oklahoma (Black Fox Station, Units 1 & 2), ALAB-397, 5 NRC 1143, 1150 

(1977). 

Although an “obvious potential for offsite consequences” may be sufficient 

to show standing, it is not in itself sufficient to support an admissible 

contention. Pacific Gas & Electric Co. (Diablo Canyon Power Plant 

Independent Spent Fuel Storage Installation), LBP-03-11, 58 NRC 47, 93 

(2003). 

A presumption of standing based on geographic proximity may be applied 

in cases involving nonpower reactors where there is a determination that 

the proposed action involves a significant source of radioactivity producing 

an obvious potential for offsite consequences. Whether and at what 

distance a petitioner can be presumed to be affected must be judged on a 

case-by-case basis, taking into account the nature of the proposed action 

and the significance of the radioactive source. Georgia Institute of 

Technology (Georgia Tech Research Reactor), CLI-95-12, 42 NRC 111, 

116 (1995); Pa’ina Hawaii, LLC, LBP-06-4, 63 NRC 99, 105-106 (2006). 

This proximity presumption may apply if the petitioner lives within, or 

otherwise has frequent contacts with, the zone of possible harm from the 

nuclear reactor or other source of radioactivity. Pa’ina, LBP-06-4, 

63 NRC at 105 (citing Fla. Power & Light Co. (Turkey Point Nuclear 

Generating Plant, Units 3 & 4), LBP-01-6, 53 NRC 138, 146 (2001), aff’d on 

other grounds, CLI-01-17, 54 NRC 3 (2001)). 

Where a petitioner claimed that the 10 C.F.R. § 51.22 categorical exclusion 

(providing that no environmental assessment (EA) or EIS need be 

prepared) for irradiators was inapplicable because of special circumstances 

unique to the proposed location of the irradiator, and where the Board 

found it to be a plausible claim that placing an irradiator in a location 

subject to the specified risks (e.g., aircraft crashes, tsunamis, and 

hurricanes) would present an obvious potential for offsite consequences, 

the Board found that the petitioner (whose members the parties agreed 

were otherwise appropriately proximate to the proposed site) had standing 

under the geographical proximity presumption. Pa’ina Hawaii, LLC, LBP06-4, 63 NRC 99, 106-107 (2006). 

A Licensing Board disagreed that the Commission’s decision in Exelon 

Generation Co. & PSEG Nuclear, LLC (Peach Bottom Atomic Power 

Station, Units 2 & 3), CLI-05-26, 62 NRC 577, 580-83 (2005) stands for the 

proposition that a categorical exclusion (such as 

10 C.F.R. § 51.22(c)(14)(vii) for irradiators) precludes the possibility of a 

petitioner’s proximity standing based on obvious potential for offsite 

consequences. The Board asserted that the Peach Bottom ruling involved 

a merger and license transfer governed by 10 C.F.R. § 50.80, and it noted 

that although license transfers, like irradiators, are categorically excluded 

from NEPA review pursuant to 10 C.F.R. § 51.22(c) except when special 

circumstances are present, the Commission made no mention in the Peach 

Bottom decision of a categorical exclusion, nor did it suggest that such a 

determination would be dispositive of the issue for proximity standing. 

Pa’ina Hawaii, LLC, LBP-06-4, 63 NRC 99, 106 n.27 (2006). 

PREHEARING MATTERS 66 JUNE 2011
The potential for offsite consequences was “obvious” because TVA sought, 

through a technical specification change, to “add tens of millions of curies 

of highly combustible radioactive gas to the already significant core 

inventory” at the reactors. Tennessee Valley Authority (Sequoyah Nuclear 

Plant, Units 1 & 2; Watts Bar Nuclear Plant, Unit 1), LBP-02-02-14, 

56 NRC 15, 25 (2002). 

Residence within 30–40 miles of a reactor site has been held to be 

sufficient to show the requisite interest in raising safety questions. Virginia 

Electric & Power Co. (North Anna Power Station, Units 1 & 2), ALAB-146, 

6 AEC 631, 633-634 (1973); Louisiana Power & Light Co. (Waterford 

Steam Electric Station, Unit 3), ALAB-125, 6 AEC 371, 372 n.6 (1973); 

Northern States Power Co. (Prairie Island Nuclear Generating Plant, 

Units 1 & 2), ALAB-107, 6 AEC 188, 190, 193, reconsid. den., ALAB-110, 

6 AEC 247, aff’d, CLI-73-12, 6 AEC 241 (1973); Florida Power and Light 

Co. (St. Lucie Nuclear Power Plant, Unit 1), LBP-88-10A, 27 NRC 452, 

454-55 (1988), aff’d on other grounds, ALAB-893, 27 NRC 627 (1988). 

Similarly, a person whose base of normal, everyday activities is within 

25 miles of a nuclear facility can fairly be presumed to have an interest 

which might be affected by reactor construction and/or operation. Gulf 

States Utilities Co. (River Bend Station, Units 1 & 2), ALAB-183, 

7 AEC 222, 226 (1974). A petitioner must affirmatively state his place of 

residence and the extent of his work activities which are located within 

close proximity to the facility. Florida Power and Light Co. (Turkey Point 

Nuclear Generating Plant, Units 3 & 4), LBP-91-2, 33 NRC 42, 47 (1991). 

A person who regularly commutes past the entrance of a nuclear facility 

while conducting normal activities is presumed to have the requisite 

interest for standing. Northern States Power Co. (Pathfinder Atomic Plant), 

LBP-90-3, 31 NRC 40, 45 (1990). Moreover, persons who allege that they 

use an area whose recreational benefits may be diminished by a nuclear 

facility have been found to possess an adequate interest to allow 

intervention. Philadelphia Electric Co. (Peach Bottom Atomic Power 

Station, Units 2 & 3), CLI-73-10, 6 AEC 173 (1973). On the other hand, it 

is proper for a Board to dismiss an intervention petition where the 

intervenor changes residence to an area not in the proximity of the reactor 

and totally fails to assume any significant participatory role in the 

proceeding. Gulf States Utilities Co. (River Bend Station, Units 1 & 2), 

ALAB-358, 4 NRC 558 (1976). 

The initial issue in deciding a question of “proximity standing” is whether 

the kind of action at issue, when considered in light of the radioactive 

sources at the plant, justifies a presumption that the licensing action “could 

plausibly lead to the offsite release of radioactive fission products 

from...the...reactors.” The petitioner carries the burden of making this 

showing. If the petitioner fails to show that a particular licensing action 

raises an “obvious potential for offsite consequences,” then the standing 

inquiry reverts to a “traditional standing” analysis of whether the petitioner 

has made a specific showing of injury, causation, and redressability. In a 

license transfer case, the Commission concluded that the risks associated 

with the transfer of the non-operating, 50% ownership interest in a power 

reactor were de minimis and therefore justified no “proximity standing” at 

JUNE 2011 PREHEARING MATTERS 67
all. Exelon Generation Co., LLC and PSEG Nuclear, LLC (Peach Bottom 

Atomic Power Station, Units 2 & 3), CLI-05-26, 62 NRC 577, 581 (2005). 

The “proximity presumption” used in reactor construction and operating 

license proceedings should also apply to reactor license renewal 

proceedings. For construction permit and operating license proceedings, 

the NRC recognizes a presumption that persons who live, work or 

otherwise have contact within the area around the reactor have standing to 

intervene if they live within close proximity of the facility (e.g., 50 miles). 

Reactor license extension cases should be treated similarly because they 

allow operation of a reactor over an additional period of time during which 

the reactor can be subject to some of the same equipment failure and 

personnel error as during operations over the original period of the license. 

Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2 & 3), LBP-98-33, 

48 NRC 381, 385 n.1 (1998). 

In an adjudicatory hearing regarding decommissioning plans, a hearing 

petition or supplementary petition which fails to allege any concrete or 

particularized injury that would occur as a result of the transportation of 

reactor materials or components to a low-level waste facility, does not 

satisfy the “injury-in-fact” prong. In addition, a petition fails to demonstrate 

“injury-in-fact” which only alleges that a petitioner’s members live “close” to 

transportation routes that will be used for shipments of reactor materials 

and components to a low-level was facility and does not identify those 

routes or explain how “close” to those routes the petitioner’s members 

actually live. Yankee Atomic Electric Co. (Yankee Nuclear Power Station), 

CLI-94-3, 39 NRC 95, 100-02 (1994). 

Where the Licensing Board rests its finding of standing on a combination of 

(a) the petitioners’ proximity to the licensed facility, (b) petitioners’ everyday 

use of the area near the reactor, and (c) the decommissioning effects 

described in the Commission’s 1988 generic EIS, the Commission 

determined that it was reasonable for the Board to find “that some, even if 

minor, public exposures can be anticipated” and “will be visited” on 

petitioners’ members. Yankee Atomic Electric Co. (Yankee Nuclear Power 

Station), CLI-96-7, 43 NRC 235, 248 (1996). 

In non-reactor cases there is no presumption of standing based upon 

geographic proximity, absent a determination that the proposed action 

involves a significant source of radioactivity producing an obvious potential 

for offsite consequences. This is otherwise known as the “proximity-plus” 

test. Pursuant to this test, whether and at what distance a petitioner can be 

presumed to be affected must be judged on a case-by-case basis, taking 

into account the nature of the proposed action and the significance of the 

radioactive source. A petitioner must show more than that he or she lives 

or works within a certain distance of the site where licensed materials will 

be located – he or she must show a plausible mechanism through which 

those materials could cause harm to him or her. U.S. Army Installation 

Command (Schofield Barracks, Oahu, Hawaii, and Pohakuloa Training 

Area, Island of Hawaii, Hawaii), CLI-10-20, 71 NRC ___ (Aug. 12, 2010) 

(slip op. at 3) citing USEC, Inc. (American Centrifuge Plant), CLI-05-11, 

PREHEARING MATTERS 68 JUNE 2011
61 NRC 309, 311 (2005). Pursuant to this “proximity-plus” test in materials 

cases, a petitioner must show that the proposed licensing action involves a 

significant source of radiation which has an obvious potential for offsite 

consequences. If a petitioner cannot establish the elements of this test, 

then he or she must establish standing according to the traditional standing 

principles. U.S. Army Installation Command (Schofield Barracks, Oahu, 

Hawaii, and Pohakuloa Training Area, Island of Hawaii, Hawaii), CLI-10-20, 

71 NRC ___ (Aug. 12, 2010) (slip op. at 3-4). 

The “proximity presumption” for standing is not appropriate in cases 

involving enforcement orders. Something in addition to the distance of the 

individual from the facility is necessary. Nuclear Fuel Services, Inc.

(Special Nuclear Facility), LBP-07-16, 66 NRC 277, 293-94 (2007). 

In a proceeding reviewing an extended power uprate application, an 

organization had representational standing where its representative 

members each lived within 15 miles of the plant. Entergy Nuclear Vermont 

Yankee, L.L.C. and Entergy Nuclear Operations, Inc. (Vermont Yankee 

Nuclear Power Station), LBP-04-28, 60 NRC 548, 553-54 (2004). 

In a materials license renewal proceeding under 10 C.F.R. Part 30, as in 

construction permit and operating license proceedings under 

10 C.F.R. Part 50, the Appeal Board suggested that proximity to a large 

source of radioactive material is sufficient to establish the requisite interest 

for standing to intervene. Whether a petitioner’s stated concern is in fact 

justified must be left for consideration when the merits of the controversy 

are reached. Armed Forces Radiobiology Research Institute (Cobalt-60 

Storage Facility), ALAB-682, 16 NRC 150, 154 (1982). See generally, 

LBP-82-24, 15 NRC 652 (1982), (decision reversed regarding petitioner’s 

request to intervene). But see International Uranium Corporation (White 

Mesa Uranium Mill), CLI-98-6, 47 NRC 116 (1998). However, postcards 

and letters from individuals allegedly living near nuclear fuel element 

manufacturing and fuel element decladding facilities which make only 

vague and generalized allusions to danger or potential injury from radiation 

do not constitute a proper intervention statement. Rockwell International 

Corp. (Energy Systems Group Special Materials License No. SNM-21), 

LBP-83-65, 18 NRC 774, 777 (1983). More recent cases reject proximity 

to the site alone as a basis for standing. See Babcock & Wilcox (Apollo, 

Pennsylvania Fuel Fabrication Facility), LBP-93-4, 37 NRC 72, 83 (1993) 

(refusing to apply any presumption based on proximity and denying 

standing of petitioner residing within one eighth and within two miles of the 

facility). See also Atlas Corp. (Moab, Utah Facility), LBP-97-9, 

45 NRC 414, 426 (1997) (petitioner must assert reasonable nexus between 

himself and purported radiological impacts). Even though a license is 

conditional so that certain activities may not take place without further staff 

approval, the scope of the license is not narrowed. A petitioning party has 

standing to request a hearing if any of the activities under the license would 

cause injury. Hydro Resources, Inc. (2929 Coors Rd., Suite 101, 

Albuquerque, NM 87120), LBP-98-9, 47 NRC 261 (1998). 

JUNE 2011 PREHEARING MATTERS 69
The fact that a member of a citizens’ group lived 20 miles from a site was 

not sufficient to grant the group standing to intervene in a proceeding for an 

amendment to a materials license held by the site. U.S. Department of 

Army (Army Research Laboratory), LBP-00-21, 52 NRC 107 (2000). 

Mere geographical proximity to potential transportation routes is insufficient 

to confer standing; instead, Section 2.309 petitioners must demonstrate a 

causal connection between the licensing action and the injury alleged. 

There is authority that indicates that to establish injury-in-fact, it is not 

necessary to proffer radiation impacts that amount to a regulatory violation. 

However, simply showing the potential for any radiological impact, no 

matter how trivial, is not sufficient to meet the requirement of showing a 

distinct and palpable harm under the first standing element. Pacific Gas & 

Electric Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage 

Installation), LBP-02-23, 56 NRC 413, 434 (2002), aff’d, CLI-03-1, 

57 NRC 1 (2003). See also U.S. Dep’t of Energy, CLI-04-17, 59 NRC 357, 

364-66 (2004), where an application involving a one-time export, under 

armed guard, of a limited quantity of plutonium oxide was distinguished 

from the line of Commission decisions discussing the proximity 

presumption and involving permanent or long-term licensed facilities. The 

Commission in CLI-04-17 also noted in a footnote that “[M]ere geographical 

proximity to potential transportation routes is insufficient to confer standing; 

instead...Petitioners must demonstrate a causal connection between the 

licensing action and the injury alleged.” Id. at 364 n.11 (quoting Pac. Gas 

& Elec. Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage 

Installation), LBP-02-23, 56 NRC 413, 434 (2002)). 

In a case where petitioners challenged an export license to export 

weapons-grade plutonium oxide to France, and argued standing in part 

because of proximity to cross-country shipments of the plutonium, the 

Commission stated (via dicta in a footnote) that the NRC’s jurisdiction to 

license U.S. Department of Energy (DOE) exports of special nuclear 

material under AEA § 54.d. does not extend to any aspects of DOE’s 

domestic transportation of such material. Therefore, it was unclear that 

denial of DOE’s proposed export license would redress or avoid the harm 

that petitioners asserted for standing purposes – i.e., DOE’s transportation 

of the plutonium oxide near petitioners’ residences. See U.S. Dep’t of 

Energy, CLI-04-17, 59 NRC 357, 366 n.13 (2004). 

In-situ leaching (ISL) mining cases present unique issues because the 

geographical areas that may be affected by mining operations are largely 

dependent on the characteristics of the underground aquifers that contain 

groundwater that may potentially be affected by ISL mining. Standing, 

therefore, should be granted to anyone who uses a substantial quantity of 

water from a source that is “reasonably contiguous” to either the injection 

or processing sites. Crowe Butte Resources, Inc. (North Trend Expansion 

Project), LBP-08-6, 67 NRC 241, 273 (2008). Therefore, a woman who 

claimed that her fishing activities 60 miles downriver from the site had 

standing since it is conceivable that the contaminates could reach her 

fishing activities. Id. at 280. 

PREHEARING MATTERS 70 JUNE 2011
Commission case law has established a “proximity presumption,” under 

which a petitioner may establish standing upon demonstrating that his or 

her residence is within the geographical area that might be affected by 

accidental release of fission products. In proceedings involving nuclear 

power plants, this geographical area is within a 50-mile radius of the plant. 

PPL Susquehanna, LLC (Susquehanna Steam Electric Station, Units 1 

& 2), LBP-07-4, 65 NRC 293-96 (2007); Southern Nuclear Operating Co. 

(Early Site Permit for Vogtle ESP Site), LBP-07-3, 65 NRC 237, 249-50 

(2007); Consumers Energy Co. (Big Rock Point Spent Fuel Storage 

Installation), CLI-07-19, 65 NRC 423, 426 (2007); PPL Susquehanna LLC 

(Susquehanna Steam Electric Station, Units 1 & 2), LBP-07-10, 66 NRC 1, 

14 (2007). 

A petitioner may not establish proximity through a vague claim in an initial 

petition that the petitioner later supplements in a motion for 

reconsideration. Consumers Energy Co. (Big Rock Point Independent 

Spent Fuel Storage Installation), CLI-07-21, 65 NRC 522 (2007). 

In addition, individuals with significant contacts with the geographical area 

may establish standing through the proximity presumption. PPL 

Susquehanna LLC (Susquehanna Steam Electric Station, Units 1 & 2), 

LBP-07-10, 66 NRC 1, 17 (2007); PPL Susquehanna, LLC (Susquehanna 

Steam Electric Station, Units 1 & 2), LBP-07-4, 65 NRC 281, 293-96 

(2007). 

A petitioner who lived 56 miles from the plant but routinely traveled within 

the geographical area for business reasons met the standing requirement 

under the “proximity presumption.” The petitioner had frequent contacts 

with the area and the proximity of the petitioner’s home to the geographical 

area ensured those contacts would continue. PPL Susquehanna, LLC

(Susquehanna Steam Electric Station, Units 1 & 2), LBP-07-4, 

65 NRC 293-96 (2007); PPL Susquehanna LLC (Susquehanna Steam 

Electric Station, Units 1 & 2), LBP-07-10, 66 NRC 1, 20-21 (2007). An 

intervenor can establish standing on the basis of owning a property within 

50 miles of a nuclear power plant that he uses for an office and visits 

frequently, and where he stays overnight on a weekly basis. PPL Bell 

Bend, LLC (Bell Bend Nuclear Power Plant), LBP-09-18, 70 NRC 385, 395 

(2009) (CLI-10-07, 71 NRC __ (Jan. 7, 2010) (slip op.). 

In determining whether the “proximity presumption” will apply, the 

Commission examines the obvious potential for offsite radiological 

consequences and the nature of the proposed action and the significance 

of the radiological source. 

The Commission has denied proximity-based standing in license transfer 

cases to petitioners within 5–10 miles, 12 miles, and 40 miles of the 

licensed facilities. Consumers Energy Co. (Big Rock Point Independent 

Spent Fuel Storage Installation), CLI-07-21, 65 NRC 519, 523 (2007). 

While normal everyday activities, substantial business activities, or an 

ongoing connection and presence within the area surrounding a facility 

JUNE 2011 PREHEARING MATTERS 71
may suffice to establish proximity-based standing, mere occasional trips to 

areas located close to reactors will not establish proximity-based standing. 

Consumers Energy Co. (Big Rock Point Independent Spent Fuel Storage 

Installation), CLI-07-21, 65 NRC 519, 523-24 (2007). 

In cases involving a license amendment, a petitioner must (1) assert an 

injury-in-fact and (2) either show the proposed action obviously entails an 

increased potential for offsite consequence or posit a plausible chain of 

events that would result in radiological consequences posing a distinct new 

harm to the petitioner. When the petitioner relies on proximity, the distance 

at which the Board may presume a petitioner will be affected must take into 

account the nature of proposed activities and the significance of the 

radioactive source. PPL Susquehanna LLC (Susquehanna Steam Electric 

Station, Units 1 & 2), LBP-07-10, 66 NRC 1, 15 (2007). 

 

Given that dose consequences can increase by the percentage change in 

the power level of a license amendment request for an extended power 

uprate, the 50-mile presumption for standing applies to hearings on such 

amendment requests. PPL Susquehanna LLC (Susquehanna Steam 

Electric Station, Units 1 & 2), LBP-07-10, 66 NRC 1, 19 (2007). 

2.10.4.1.1.1.F Injury Due to Failure to Prepare an EIS 

Failure to produce an EIS in circumstances where one is required has been 

held to constitute injury – indeed, irreparable injury. Palisades, supra, 10 

NRC at 115-116. Persons residing within the close proximity to the locus 

of a proposed action constitute the very class which an impact statement is 

intended to benefit. Palisades, supra, 10 NRC at 116. 

There is no 50-mile presumption for determining areas in which 

environmental impacts must be evaluated. The standing requirement for 

showing injury-in-fact has always been significantly less than for 

demonstrating an acceptable contention. Sacramento Municipal Utility 

District (Rancho Seco Nuclear Generating Station), LBP-93-23, 

38 NRC 200, 248-49 (1993). 

An organization has established standing by asserting that the 

Commission’s decision not to prepare an EIS of the alleged de facto 

decommissioning of the Shoreham facility would injure the organization’s 

ability to disseminate information which is essential to its organizational 

purpose and is within the zone of interests protected by NEPA. Long 

Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-91-23, 

33 NRC 430, 435-36 (1991). The organization’s alleged injury also was 

sufficient to establish standing in the Shoreham possession-only license 

proceeding where the organization asserted that the application for a 

possession-only license was another step in the alleged de facto 

decommissioning of the Shoreham facility. Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), LBP-91-26, 33 NRC 537, 541-

43 (1991), reconsid. denied, LBP-91-32, 34 NRC 132 (1991). The 

organization is not required to suffer direct environmental harm in order to 

establish standing. The organization’s alleged injury to its informational 

PREHEARING MATTERS 72 JUNE 2011
purpose is a cognizable injury under NEPA as long as there is a 

reasonable risk that environmental harm may occur. Shoreham, supra, 34 

NRC at 135-36, citing City of Los Angeles v. NHTSA, 912 F.2d 478, 492 

(D.C. Cir. 1990). The Licensing Board in the Rancho Seco possessiononly license proceeding has held that the alleged injury to an organization’s 

ability to disseminate information is insufficient by itself to establish 

standing. There must also be a showing of a specific cognizable injury. 

Sacramento Municipal Utility District (Rancho Seco Nuclear Generating 

Station), LBP-91-30, 34 NRC 23, 27-28 (1991). See Sacramento Municipal 

Utility District (Rancho Seco Nuclear Generating Station), CLI-92-2, 35 

NRC 47, 57-61 (1992), aff’d, Environmental and Resources Conservation 

Organization v. NRC, 996 F.2d 1224 (9th Cir. 1993) (Table); Sacramento 

Municipal Utility District (Rancho Seco Nuclear Generating Station), LBP92-23, 36 NRC 120, 128 (1992). 

A statement of asserted injury which is insufficient to found a valid 

contention may well be adequate to provide a basis for standing. 

Consumers Power Co. (Palisades Nuclear Plant), LBP-79-20, 10 NRC 108, 

115 (1979). Failure to produce an EIS in circumstances where required 

has been held to constitute injury – indeed, irreparable injury. Palisades, 

supra, 10 NRC at 115-116. Persons residing within the close proximity to 

the locus of a proposed action constitute the very class which an impact 

statement is intended to benefit. Palisades, supra, 10 NRC at 116. If 

petitioners fail to respond to a presiding officer’s reasonable and clearly 

articulated requests for more specific information regarding petitioners’ 

claims of standing, the presiding officer is justified in rejecting the petitions 

for intervention. International Uranium Corporation (White Mesa Uranium 

Mill), CLI-98-6, 47 NRC 116 (1998). 

2.10.4.1.1.1.G Injury Due to Property Interest 

The AEA authorizes the Commission to accord protection from radiological 

injury to both health and property interests. Thus, a genuine property 

interest in a home situated near a planned uranium enrichment facility, 

even though the owner did not occupy the home, was sufficient to accord 

the petitioner standing, given that the home is located within the same 

distance already found sufficient as a basis to accord actual residents 

standing to intervene. USEC, Inc. (American Centrifuge Plant), CLI-05-11, 

61 NRC 309, 311 (2005). 

2.10.4.1.1.2 “Zone of Interests” Test 

With respect to “zone of interest,” the Appeal Board, in Virginia Electric & 

Power Co. (North Anna Power Station, Units 1 & 2), ALAB-342, 4 NRC 98, 

103 n.6 (1976), rejected the contention that the AEA includes a “party 

aggrieved” provision which would require for standing purposes simply a 

showing of injury-in-fact. The Commission agreed with this analysis in its 

Pebble Springs decision. As such, zone of interest requirements are not met 

simply by invoking the AEA but must be satisfied by other means. 

JUNE 2011 PREHEARING MATTERS 73
“In order to assess whether an interest is within the ‘zone of interests’ of a 

statute, it is necessary to ‘first discern the interests “arguably...to be 

protected” by the statutory provision at issue,’ and ‘then inquire whether the 

plaintiff’s interests affected by the agency action are among them.’” U.S. 

Enrichment Corp. (Paducah, Kentucky), CLI-01-23, 54 NRC 267, 272-73 

(2001), (citing National Credit Union Administration v. First National Bank, 

522 U.S. 479, 492 (1998). 

The directness of a petitioner’s connection with a facility bears upon the 

sufficiency of its allegations of injury-in-fact, but not upon whether its interests 

fall within the zone of interest which Congress was protecting or regulating. 

Virginia Electric & Power Co. (North Anna Power Station, Units 1 & 2), 

ALAB-342, 4 NRC 98 (1976). 

The AEA and its implementing regulations do not confer standing but rather 

require an additional showing that interests sought to be protected arguably 

fall within the zone of interests protected or regulated by the Act. Virginia 

Electric & Power Co., ALAB-342 supra; accord, Portland General Electric Co.

(Pebble Springs Nuclear Plant, Units 1 & 2), CLI-76-27, 4 NRC 610 (1976); 

Cabot Performance Materials, LBP-00-13, 51 NRC 284, 288 (2000). 

Injuries to a petitioner for intervention arising from the actions of parties other 

than the applicant (in this case, the state and its Governor) do not fall within 

the zones of interest arguably protected by the respective statutes that govern 

a licensing proceeding. The injury of which the petitioner complained was not 

a result of the disputed application. Private Fuel Storage, L.L.C. (Independent 

Spent Fuel Storage Installation), LBP-00-23, 52 NRC 114, 124 (2000). 

Nuclear expert and citizens group who sought to challenge NRC reporting 

requirements (for performance-based containment leakage rate testing by 

nuclear power plants) fell within the zone of interests of the AEA because they 

arguably need access to information relating to successful as well as failed 

tests in order to exercise their rights under the AEA’s hearing provision, 

42 U.S.C. § 2239(a)(1)(A), and the § 2.206 petition provision. Reytblatt v. 

Nuclear Regulatory Comm’n, 105 F.3d 715, 722 (D.C. Cir. 1997). 

The AEA authorizes the Commission to accord protection from radiological 

injury to both health and property interests. See AEA, §§ 103.b., 161.b., 

42 U.S.C. §§ 2133(b), 2201(b). Gulf States Utilities Co. (River Bend Station, 

Unit 1), CLI-94-10, 40 NRC 43, 48 (1994). 

As the AEA protects not only human health and safety from radiologically 

caused injury but also the owner’s property interests in their facility, persons or 

entities who own (or co-own) an NRC-licensed facility plainly have an AEAprotected interest in license proceedings involving their facility. North Atlantic 

Energy Service Corp. (Seabrook Station, Unit 1), CLI-99-6, 49 NRC 201, 216 

(1999). 

While potential loss of business reputation is a cognizable “injury-in-fact,” an 

interest in protecting business reputation and avoiding possible damage 

claims is not arguably within the zone of interest which the Act seeks to 

PREHEARING MATTERS 74 JUNE 2011
protect or regulate. Virginia Electric & Power Co., ALAB-342, supra (business 

reputation of reactor vessel component fabricator clearly would be injured if 

components failed during operation; however, fabricator’s interest in protecting 

his reputation by intervening in hearing on adequacy of vessel supports was 

not within the zone of interests sought to be protected by the AEA). 

The economic interest of a ratepayer is not sufficient to allow standing to 

intervene as a matter of right since concern about rates is not within the scope 

of interests sought to be protected by the AEA. Kansas Gas & Electric Co.

(Wolf Creek Generating Station, Unit 1), ALAB-424, 6 NRC 122, 128 (1977); 

Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 & 2), ALAB-413, 

5 NRC 1418, 1420-1421 (1977); Detroit Edison Co. (Greenwood Energy 

Center, Units 2 & 3), ALAB-376, 5 NRC 426 (1977); Public Service Co. of 

Oklahoma (Black Fox Station, Units 1 & 2), LBP-77-17, 5 NRC 657 (1977); 

Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 

2, & 3), LBP-91-4, 33 NRC 153, 158 (1991); Sacramento Municipal Utility 

District (Rancho Seco Nuclear Generating Station), LBP-92-23, 36 NRC 120, 

130-31 (1992); Texas Utilities Electric Co., et al. (Comanche Peak Steam 

Electric Station, Unit 2), LBP-92-37, 36 NRC 370, 374 (1992). Nor is such 

interest within the zone of interests protected by NEPA. Portland General 

Electric Co. (Pebble Springs Nuclear Plant, Units 1 & 2), ALAB-333, 

3 NRC 804 (1976). 

A person’s interest as a taxpayer does not fall within the zone of interests 

sought to be protected by either the AEA or NEPA. Tennessee Valley 

Authority (Watts Bar Nuclear Plant, Units 1 & 2), ALAB-413, 5 NRC 1418, 

1421 (1977); Northern States Power Co. (Pathfinder Atomic Plant), LBP-89-

30, 30 NRC 311, 315 (1989). 

Economic injury gives standing under NEPA only if it is environmentally 

related. Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 & 2), 

ALAB-413, 5 NRC 1418, 1421 (1977); Sacramento Municipal Utility District

(Rancho Seco Nuclear Generating Station), LBP-91-17, 33 NRC 379, 39091 

(1991); Sacramento Municipal Utility District (Rancho Seco Nuclear 

Generating Station), CLI-92-2, 35 NRC 47, 56-57 (1992), aff’d, Environmental 

and Resources Conservation Organization v. NRC, 996 F.2d 1224 (9th Cir. 

1993) (Table); Sacramento Municipal Utility District (Rancho Seco Nuclear 

Generating Station), LBP-92-23, 36 NRC 120, 131 (1992). See also Long 

Island Lighting Co. (Jamesport Nuclear Power Station, Units 1 & 2), 

ALAB-292, 2 NRC 631, 640 (1975); Quivira Mining Co. (Ambrosia Lake 

Facility, Grants, NM), CLI-98-11, 48 NRC 1 (1998) and International Uranium 

(USA) (receipt of material from Tonawanda, New York), CLI-98-23, 

48 NRC 259, 264 (1998), aff’d sub nom. Envirocare, Inc. v. NRC, 194 F.3d 72 

(D.C. Cir. 1999). 

The courts have not resolved the issue of whether an individual who suffers 

economic injury as a result of a Board’s decision to bar him from working in a 

certain job would be within the zone of interests protected by the AEA. 

Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-85-2, 

21 NRC 282, 316 (1985). See, e.g., Consumers Power Co. (Palisades 

JUNE 2011 PREHEARING MATTERS 75
Nuclear Plant), ALAB-670, 15 NRC 493, 506 (1982) (concurring opinion of Mr. 

Rosenthal), vacated as moot, CLI-82-18, 16 NRC 50 (1982). 

Antitrust considerations to one side, neither the AEA nor NEPA includes in its 

“zone of interests” the purely economic personal concerns of a 

member/ratepayer of a cooperative that purchases power from a prospective 

facility co-owner. Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 

2), ALAB-470, 7 NRC 473, 474-475 (1978). See also Puget Sound Power &

Light Co. (Skagit/Hanford Nuclear Power Project, Units 1 & 2), LBP-82-26, 

15 NRC 742, 744 (1982). 

General economic concerns are not within the proper scope of issues to be 

litigated before the Boards. Concerns about a facility’s impact on local utility 

rates, the local economy, or a utility’s solvency, etc., do not provide an 

adequate basis for standing of an intervenor or for the admission of an 

intervenor’s contentions. Babcock and Wilcox (Apollo, Pennsylvania Fuel 

Fabrication Facility), LBP-93-4, 37 NRC 72, 94 n.64 (1993). Such economic 

concerns are more appropriately raised before state economic regulatory 

agencies. Public Service Co. of New Hampshire (Seabrook Station, Unit 2), 

CLI-84-6, 19 NRC 975, 978 (1984); Washington Public Power Supply System

(WPPSS Nuclear Project No. 1), ALAB-771, 19 NRC 1183, 1190 (1984); 

Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), 

ALAB-789, 20 NRC 1443, 1447 (1984). See Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), LBP-91-1, 33 NRC 15, 30 (1991); 

Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), 

LBP-91-7, 33 NRC 179, 194 (1991); Long Island Lighting Co. (Shoreham 

Nuclear Power Station, Unit 1), LBP-91-23, 33 NRC 430, 437, 443 (1991); 

Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), 

LBP-91-26, 33 NRC 537, 544, 546 (1991), reconsid. denied, LBP-91-32, 

34 NRC 132 (1991); Quivira Mining Co. (Ambrosia Lake Facility, Grants, New 

Mexico), LBP-97-20, 46 NRC 257, 271 (1997), aff’d, CLI-98-11, 48 NRC 1 

(1998), aff’d sub nom. Envirocare, Inc. v. NRC, 194 F.3d 72 (D.C. Cir. 1999). 

2.10.4.1.2 Standing of Organizations to Intervene 

In order to establish organizational standing, an organization must allege: 

(1) that the action will cause an “injury-in-fact” to either (a) the organization’s 

interests or (b) the interests of its members; and (2) that the injury is within the 

“zone of interests” protected by the AEA. A party may intervene as of right only 

when he asserts his own interests under either the Energy Reorganization Act 

(ERA) or NEPA and not when he asserts interests of third persons. Yankee 

Atomic Electric Co. (Yankee Nuclear Power Station), CLI-94-3, 39 NRC 95, 102 

n.10 (1994); Yankee Atomic Electric Co. (Yankee Nuclear Power Station), LBP96-2, 43 NRC 61, 68-69 (1996); aff’d, in part, CLI-96-7, 43 NRC 235 (1996); 

Yankee Atomic Electric Co. (Yankee Nuclear Power Station), LBP-98-12, 47 

NRC 343 (1998). A petitioning organization has standing to request a hearing if 

any of the activities under the license may cause injury to its interests or to one of 

its members. Hydro Resources, Inc. (2929 Coors Rd., Suite 101, Albuquerque, 

NM 87120), LBP-98-9, 47 NRC 261 (1998); Entergy Nuclear Operations, Inc.

(Indian Point Nuclear Generating Units 2 & 3), LBP-08-13, 68 NRC 43, 59-60 

(2008). 

PREHEARING MATTERS 76 JUNE 2011
A party may intervene as of right only when he asserts his own interests under 

either the AEA or NEPA, and not when he asserts interests of third persons. 

Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 & 2), ALAB-413, 5 

NRC 1418, 1421 (1977). Commission practice requires each party to separately 

establish standing. 10 C.F.R. § 2.309 (formerly § 2.714). Commonwealth 

Edison Co. (Dresden Nuclear Power Station, Unit 1), CLI-81-25, 14 NRC 616, 

623 (1981). An organization may meet the injury-in-fact test for standing in one 

of two ways. It may demonstrate an effect upon its organizational interest, or it 

may allege that its members, or any of them, are suffering immediate or 

threatened injury as a result of the challenged action of the sort that would make 

out a justifiable case had the members themselves brought suit. Houston 

Lighting and Power Co. (South Texas Project, Units 1 & 2), ALAB-549, 9 NRC 

644, 646 (1979); Consumers Power Co. (Palisades Nuclear Plant), LBP-79-20, 

10 NRC 108, 112-113 (1979); Hydro Resources, Inc. (2929 Coors Rd., Suite 

101, Albuquerque, NM 87120), LBP-98-9, 47 NRC 261 (1998); North Atlantic 

Energy Service Corporation (Seabrook Station, Unit 1), LBP-98-23, 48 NRC 157 

(1998); Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage 

Installation), CLI-98-13, 48 NRC 26 (1998); Yankee Atomic Electric Co. (Yankee 

Nuclear Power Station), CLI-98-21, 48 NRC 185 (1988). See Vermont Yankee 

Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), LBP-87-7, 25 

NRC 116, 118 (1987). To determine whether an organization’s individual 

members have standing a petitioner must allege (1) a particularized injury, (2) 

that is fairly traceable to the challenged action and (3) is likely to be redressed by 

a favorable decision. Private Fuel Storage, L.L.C., CLI-99-10, 49 NRC 318, 323 

(1999). Thus, a corporate environmental group has standing to intervene and 

represent members who have an interest that will be affected. Public Service 

Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-322, 3 

NRC 328 (1976). Note, however, that a member’s mere “interest in the problem” 

without a showing that the member will be affected is insufficient to give the 

organization standing. Allied General Nuclear Services (Barnwell Fuel Receiving 

and Storage Station), ALAB-328, 3 NRC 420 (1976). An organization does not 

have independent standing to intervene in a licensing proceeding merely 

because it asserts an interest in the litigation. Puget Sound Power and Light Co.

(Skagit/Hanford Nuclear Power Project, Units 1 & 2), LBP-82-74, 16 NRC 981, 

983 (1982), citing Allied General Nuclear Services (Barnwell Fuel Receiving and 

Storage Station), ALAB-328, 3 NRC 420, 422 (1976). An organization seeking to 

intervene in its own right must demonstrate a palpable injury-in-fact to its 

organizational interests that is within the scope of interests of the AEA or NEPA. 

Florida Power and Light Co. (Turkey Point Nuclear Generating Plant, Units 3 

& 4), ALAB-952, 33 NRC 521, 528-530 (1991). In this vein, for national 

environmental groups, standing is derived from injury-in-fact to individual 

members. South Texas, supra, 9 NRC at 647, citing Sierra Club v. Morton, 

405 U.S. 727 (1972). However, an organization specifically empowered by its 

members to promote certain of their interests has those members’ authorization 

to act as their representative in any proceeding that may affect those interests. 

Puget Sound Power and Light Co. (Skagit/Hanford Nuclear Power Project, 

Units 1 & 2), ALAB-700, 16 NRC 1329, 1334 (1982); see Hunt v. Washington 

Apple Advertising Commission, 432 U.S. 333, 342-345 (1977); Virginia Electric 

and Power Co. (North Anna Nuclear Power Station, Units 1 & 2), ALAB-536, 

9 NRC 402, 404 n.2 (1979); Houston Lighting and Power Co. (Allens Creek 

Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377, 395-396 n.25 

JUNE 2011 PREHEARING MATTERS 77
(1979); Sequoyah Fuels Corporation and General Atomics (Gore, Oklahoma 

Site), LBP-94-19, 40 NRC 9, 13-15 (1994); Private Fuel Storage, L.L.C.

(Independent Spent Fuel Storage Installation), CLI-98-13, 48 NRC 26 (1998). A 

member’s authorization may be presumed when the sole or primary purpose of 

the organization is to oppose nuclear power in general or the facility at bar in 

particular. Georgia Power Co. (Vogtle Electric Generating Plant, Units 1 & 2), 

LBP-91-33, 34 NRC 138, 140-41 (1991). 

To have standing, an organization must show injury either to its organizational 

interests or to the interests of members who have authorized it to act for them. 

Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), LBP-82-43A, 

15 NRC 1423, 1437 (1982), citing Warth v. Seldin, 422 U.S. 490, 511 (1975); 

Sierra Club v. Morton, 405 U.S. 727, 739-740 (1972); Consumers Power Co.

(Palisades Nuclear Plant), LBP-79-20, 10 NRC 108, 113 (1979); Georgia Power 

Co. (Vogtle Electric Generating Plant, Units 1 & 2), LBP-90-29, 32 NRC 89, 

91-92 (1990); see also Sacramento Municipal Utility District (Rancho Seco 

Nuclear Generating Station), LBP-91-17, 33 NRC 379, 389 (1991); PPL 

Susquehanna, LLC (Susquehanna Steam Electric Station, Units 1 & 2), 

LBP-07-4, 65 NRC 281, 294 (2007); PPL Susquehanna, LLC (Susquehanna 

Steam Electric Station, Units 1 & 2), LBP-07-4, 65 NRC 293-96 (2007); Southern 

Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), LBP-07-3, 

65 NRC 237, 250 (2007); Tennessee Valley Authority (Bellefonte Nuclear Power 

Plant, Units 3 & 4), LBP-08-16, 68 NRC 361, 378 (2008); Crow Butte Resources, 

Inc. (North Trend Expansion Project), LBP-08-6, 67 NRC 241 (2008). 

An organization must, in itself, and through its own membership, fulfill the 

requirements for standing. Puget Sound Power & Light, Co. (Skagit/Hanford 

Nuclear Power Project, Units 1 & 2), LBP-82-74, 16 NRC 981, 984 (1982), citing

Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 & 2), 

CLI-76-27, 4 NRC 610, 613 (1976). 

“[T]he petitioning organization must demonstrate that the interests it seeks to 

protect are germane to its purposes and that neither the claim it asserts nor the 

relief it requests requires the participation of an individual member in the 

proceeding.” Duke Cogema Stone & Webster (Savannah River Mixed Oxide 

Fuel Fabrication Facility), LBP-01-35, 54 NRC 403, 413-14 (2001). 

Absent express authorization, an organization which is a party to an NRC 

proceeding may not represent persons other than its own members. Since there 

are no Commission regulations allowing parties to participate as private attorneys 

general, an organization acting as an intervenor may not claim to represent the 

public interest in general in addition to representing the specialized interests of its 

members. In this vein, a trade association of home heating oil dealers cannot be 

deemed to represent the interests of employees and customers of the dealers. 

Similarly, an organization of residents living near a proposed plant site cannot be 

deemed to represent the interests of other residents who are not members. Long 

Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-77-11, 

5 NRC 481 (1977); Puget Sound Power and Light Co. (Skagit/Hanford Nuclear 

Power Project, Units 1 & 2), LBP-82-74, 16 NRC 981, 984 (1982), citing

Shoreham, supra, 5 NRC at 481, 483. An organization lacked standing to litigate 

the consequences of a possible accident in a research laboratory where the 

PREHEARING MATTERS 78 JUNE 2011
health risks from the accident would be confined within the laboratory and the 

organization had not demonstrated that any of its members were workers inside 

the laboratory. Curators of the University of Missouri, LBP-90-30, 32 NRC 95, 

103 (1990). 

A petitioner should not request to intervene in his or her own right and 

simultaneously authorize another petitioner to represent his or her interests. 

Such a result could lead to confusion over which party spoke for petitioner’s 

interest. In contrast, nothing prohibits a petitioner from petitioning to intervene in 

his or her own right and as a representative of others. Consumers Energy Co.

(Big Rock Point Spent Fuel Storage Installation), CLI-07-19, 65 NRC 426-27 n.17 

(2007). 

2.10.4.1.2.1 Organizational Standing 

To establish standing as an organization, the petitioner must, in its own right 

as an organization, satisfy the same requirements for standing as an 

individual: injury, causation, and redressability. Westinghouse Electric Co., 

LLC (Hematite Decommissioning Project License Amendment Request), 

LBP-09-28, 70 NRC ___ (Dec. 3, 2009) (slip op. at 4), citing Consumers 

Energy Co. (Palisades Nuclear Plant), CLI-07-18, 65 NRC 399, 411 (2007). A 

petitioner cannot assert injury-in-fact to itself as an organization based upon 

nothing more than a broad interest – shared with many others – in the 

preservation of the environment. See Sierra Club v. Morton, 405 U.S. 727, 

734-735 (1972). Nor can standing be founded upon a petitioner’s stated 

strong organizational interest in compliance with the dictates of federal and 

state laws and regulations. International Uranium (USA) Corporation (White 

Mesa Uranium Mill) LBP-01-15, 53 NRC 344, 348 (2001); Ten Applications for 

Low-Enriched Uranium Exports to EURATOM Member Nations, CLI-77-24, 

6 NRC 525, 531 (1977), citing Warth v. Seldin, 422 U.S. 490, 499 (1975); 

Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), 

CLI-83-25, 18 NRC 327, 333 (1983). 

An organization must demonstrate a discrete institutional injury to the 

organization itself. International Uranium (USA) Corp. (White Mesa Uranium 

Mill), CLI-01-21, 54 NRC 247, 252 (2001); Entergy Nuclear Generation Co. 

and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), 

LBP-06-23, 64 NRC 257, 271 (2006). General environmental and policy 

interests are insufficient to confer organizational standing. International 

Uranium (USA) Corp. (White Mesa Uranium Mill), CLI-01-21, 54 NRC 247, 

252 (2001). 

Where an organization is to be represented in an NRC proceeding by one of 

its members, the member must demonstrate authorization by that organization 

to represent it. Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), 

LBP-78-37, 8 NRC 575, 583 (1978). See Georgia Power Co. (Vogtle Electric 

Generating Plant, Units 1 & 2), LBP-90-29, 32 NRC 89, 92 (1990); Georgia 

Institute of Technology (Georgia Tech Research Reactor), CLI-95-12, 

42 NRC 111, 115 (1995). 

JUNE 2011 PREHEARING MATTERS 79
If an official of an organization has the requisite personal interest to support an 

intervention petition, her signature on the organization’s petition for 

intervention is enough to give the organization standing to intervene. 

However the organization is not always necessarily required to produce an 

affidavit from a member or sponsor authorizing it to represent that member or 

sponsor. The organization may be presumed to represent the interests of 

those of its members or sponsors in the vicinity of the facility. (Where an 

organization has no members, its sponsors can be considered the equivalent 

of members where they financially support the organization’s objectives and 

have indicated a desire to be represented by the organization.) Consolidated 

Edison Co. of N.Y. (Indian Point Nuclear Generating Unit 2) and Power 

Authority of the State of N.Y. (Indian Point Nuclear Generating Unit 3), LBP82-25, 15 NRC 715, 728-729, 734-736 (1982). 

An organization seeking intervention need not demonstrate that its 

membership had voted to seek intervention on the matter raised by a 

submitted contention, and had authorized the author of the intervention 

petition to represent the organization. Duke Power Co. (Amendment to 

Materials License SNM-1773 – Transportation of Spent Fuel from Oconee 

Nuclear Station for Storage at McGuire Nuclear Station), ALAB-528, 

9 NRC 146, 151 (1979). Northeast Nuclear Energy Co. (Millstone Nuclear 

Power Station, Unit 2), LBP-92-28, 36 NRC 202, 206-207 (1992) [the effect of 

ratification by a principal of its agent’s previous acts is to adopt those acts as 

the principal’s own as of the time the agent acted]. 

Where the petitioner organization’s membership solicitation brochure 

demonstrates that the organization’s sole purpose is to oppose nuclear power 

in general and the construction and operation of nuclear plants in the 

northwest in particular, mere membership by a person with geographic 

standing to intervene, without specific representational authority, is sufficient 

to confer standing. Washington Public Power Supply System (WPPSS 

Nuclear Project No. 1), LBP-83-16, 17 NRC 479, 482 (1983). See Georgia 

Power Co. (Vogtle Electric Generating Plant, Units 1 & 2), LBP-91-33, 

34 NRC 138, 140-41 (1991). 

An organization which bases its standing upon the interests of its sponsors 

must: (1) identify at least one sponsor who will be injured; (2) describe the 

nature of that injury; and (3) provide an authorization for the organization to 

represent the sponsor in the proceeding. Northern States Power Co.

(Pathfinder Atomic Plant), LBP-89-30, 30 NRC 311, 314 (1989). 

To establish injury-in-fact, an organization must show a causal relationship 

between the alleged injury to its sponsor and the proposed licensing activity. 

Northern States Power Co. (Pathfinder Atomic Plant), LBP-90-3, 31 NRC 40, 

43-44 (1990); Hydro Resources, Inc. (2929 Coors Rd., Suite 101, 

Albuquerque, NM 87120), LBP-98-9, 47 NRC 261 (1998); Northeast Nuclear 

Energy Co. (Millstone Nuclear Power Station, Unit 3), LBP-98-20, 48 NRC 87 

(1998); Tennessee Valley Authority (Sequoyah Nuclear Plant, Units 1 & 2; 

Watts Bar Nuclear Plant, Unit 1), LBP-02-02-14, 56 NRC 15, 23 (2002). 

PREHEARING MATTERS 80 JUNE 2011
2.10.4.1.2.2 Representational Standing 

Where an organization asserts a right to represent the interests of its 

members, “judicial concepts of standing” require a showing that: (1) its 

members would otherwise have standing to sue in their own right; (2) the 

interests that the organization seeks to protect are germane to its purpose; 

and (3) neither the claim asserted nor the relief requested requires an 

individual member to participate in the organization’s lawsuit. Longstanding 

NRC practice also requires an organization to demonstrate that at least one of 

its members has authorized it to represent the member’s interests. Private 

Fuel Storage, L.L.C., CLI-99-10, 49 NRC 318, 323 (1999); Entergy Nuclear 

Operations, Inc. and Entergy Nuclear Fitzpatrick, LLC (James L. FitzPatrick 

Nuclear Power Plant) et al, CLI-08-19, 68 NRC 251, 263-65 (2008) (finding 

that unions are not inherently representative, therefore unions must satisfy the 

criteria for representational standing); see also Pa’ina Hawaii, LLC, LBP-06-4, 

63 NRC 99, 103-104 (2006); PPL Susquehanna, LLC (Susquehanna Steam 

Electric Station, Units 1 & 2), LBP-07-4, 65 NRC 281, 294 (2007); Duke 

Energy Carolinas, LLC (William States Lee III Nuclear Station, Units 1 & 2), 

LBP-08-17, 68 NRC 431, 438-39 (2008); Tennessee Valley Authority

(Bellefonte Nuclear Power Plant, Units 3 & 4), LBP-08-16, 68 NRC 361, 378 

(2008). 

An organization seeking representational standing must demonstrate how at 

least one of its members may be affected by the licensing action, must identify 

that member by name and address, and must show that the organization is 

authorized by that member to request a hearing on the member’s behalf. 

Northern States Power Co. (Monticello Nuclear Generating Plant; Prairie 

Island Nuclear Generating Plant, Units 1 & 2; Prairie Island Independent 

Spent Fuel Storage Installation), CLI-00-14, 52 NRC 37 (2000). See GPU 

Nuclear, Inc. (Oyster Creek Nuclear Generating Station), CLI-00-6, 

51 NRC 193, 202 (2000); Entergy Nuclear Generation Co. and Entergy 

Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP-06-23, 

64 NRC 257, 271 (2006). 

There is a presumption of standing where an organization raises safety issues 

on behalf of a member or members residing in close proximity to a plant. 

Consumers Power Co. (Palisades Nuclear Plant), LBP-79-20, 10 NRC 108, 

115 (1979); Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear 

Power Station), LBP-87-7, 25 NRC 116, 118 (1987); Northeast Nuclear 

Energy Co. (Millstone Nuclear Power Station, Unit 3), LBP-98-20, 48 NRC 87, 

93-94 (1998). The petitioning organization must identify the members whose 

interests it represents, and state the members’ places of residence and the 

extent of the members’ activities located within close proximity to the plant. 

Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 

2, & 3), LBP-91-4, 33 NRC 153, 158 (1991). 

An individual satisfies the injury-in-fact requirement of standing by showing 

that his or her residence is within the geographical area that might be affected 

by an accidental release of fission products. The Commission’s “rule of 

thumb” for this zone of possible harm is that persons who reside within a 

50-mile radius of the facility at issue are presumed to have standing. 

JUNE 2011 PREHEARING MATTERS 81
Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), 

LBP-06-7, 63 NRC 188, 195 (2006). 

Thus, for representational standing, a group must identify at least one of its 

members by name and address and demonstrate how that member may be 

affected (such as by activities on or near the site) and show (preferably by 

affidavit) that the group is authorized to request a hearing on behalf of the 

member. Houston Lighting and Power Co. (South Texas Project, Units 1 & 2), 

ALAB-549, 9 NRC 644, 646-47 (1979). Northern States Power Co.

(Independent Spent Fuel Storage Installation), LBP-96-22, 44 NRC 138, 141 

(1996); Hydro Resources, Inc. (2929 Coors Rd., Suite 101, Albuquerque, NM 

87120), LBP-98-9, 47 NRC 261, 271 (1998); Private Fuel Storage, L.L.C., 

(Independent Spent Fuel Storage Installation), CLI-98-13, 48 NRC 26 (1998); 

North Atlantic Energy Service Corporation (Seabrook Station, Unit 1), 

LBP-98-23, 48 NRC 157, 159, 163 (1998); GPU Nuclear, Inc., et. al. (Oyster 

Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 202 (2000). The 

group must show that the amendment may injure the group, or someone the 

group is authorized to represent. International Uranium (USA) Corporation

(White Mesa Uranium Mill), LBP-97-14, 46 NRC 55, 57 (1997); Power 

Authority of the State of New York (James FitzPatrick Nuclear Power Plant; 

Indian Point Nuclear Generating Unit 3), CLI-00-22, 52 NRC 266, 293 (2000); 

Power Authority of the State of New York, et. al. (James FitzPatrick Nuclear 

Power Plant; Indian Point Nuclear Generating Unit 3), CLI-00-22, 52 NRC 

266, 293 (2000), citing Nuclear Power Corp. (Vermont Yankee Nuclear Power 

Station), CLI-00-20, 52 NRC 151, 163 (2000); GPU Nuclear, Inc. (Oyster 

Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 202 (2000). 

To establish the requisite “injury-in-fact” for standing, a petitioner must have a 

“real stake” in the outcome, a genuine, actual, or direct stake, but not 

necessarily a substantial stake in the outcome. An organization meets this 

requirement where it has identified one of its members who possesses the 

requisite standing. Houston Lighting and Power Co. (South Texas Project, 

Units 1 & 2), LBP-79-10, 9 NRC 439, 447-448 (1979). See Dellums v. NRC, 

863 F.2d 968, 972-73 (D.C. Cir. 1988). 

An organization depending upon injury to the interests of its members to 

establish standing, must provide with its petition identification of at least one 

member who will be injured, a description of the nature of that injury, and an 

authorization for the organization to represent that individual in the 

proceeding. Philadelphia Electric Co. (Limerick Generating Station, Units 1 

& 2), LBP-82-43A, 15 NRC 1423, 1437 (1982), citing Houston Lighting and 

Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 

9 NRC 377, 390-96 (1976); Combustion Engineering. Inc. (Hematite Fuel 

Fabrication Facility), LBP-89-23, 30 NRC 140, 149 (1989); Northern States 

Power Co. (Pathfinder Atomic Plant), LBP-89-30, 30 NRC 311, 313, 315-16 

(1989); Curators of the University of Missouri, LBP-90-18, 31 NRC 559, 565 

(1990); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), 

LBP-91-1, 33 NRC 15, 29 (1991); Sequoyah Fuels Corporation, LBP-91-5, 

33 NRC 163, 166 (1991); Long Island Lighting Co. (Shoreham Nuclear Power 

Station, Unit 1), LBP-91-7, 33 NRC 179, 192-93 (1991); Long Island Lighting 

Co. (Shoreham Nuclear Power Station, Unit 1), LBP-91-23, 33 NRC 430, 434 

PREHEARING MATTERS 82 JUNE 2011
(1991); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), 

LBP-91-26, 33 NRC 537, 541 (1991), reconsid. denied, LBP-91-32, 

34 NRC 132 (1991). The alleged injury-in-fact to the member must be within 

the purpose of the organization. Curators of the University of Missouri, 

LBP-90-18, 31 NRC 559, 565-66 (1990). 

It is not necessary for the individual on whom organizational standing is based 

to be conversant with, and able to defend, each and every contention raised 

by the organization in pursuing his interest. Litigation strategy and the 

technical details of the complex prosecution of a nuclear power intervention 

are best left to the resources of the organizational petitioners. Washington 

Public Power Supply System (WPSS Nuclear Project No. 1), LBP-83-16, 

17 NRC 479, 485 (1983). 

A petitioner’s identification of four organizational members whose interests 

have allegedly been injured or might be injured by actions taken in relation to 

the decommissioning process does not satisfy the “injury-in-fact” prong of the 

organizational standing test where those members live near the proposed site 

for the disposal of reactor materials and components and not near the site of 

the nuclear power plant from which the materials are to be removed. Yankee 

Atomic Electric Co. (Yankee Nuclear Power Station), CLI-94-3, 39 NRC 95, 

101-02 (1994). 

The identity of specific individual members of a petitioner organization whose 

interests are being represented by that organization is not viewed as an 

integral and material portion of the petition to intervene. Any change in 

membership, therefore, does not require an amendment of the petition. 

Washington Public Power Supply System (WPPSS Nuclear Project 1), 

LBP-83-59, 18 NRC 667, 669 (1983). 

Once a member has been identified sufficiently to afford verification by the 

other parties and the petition to intervene has been granted, it is presumed 

that the organizational petitioner continues to represent individual members 

with standing to intervene who authorize the intervention. It is doubtful that 

the death or relocation outside the geographical zone of interest of the only 

named members upon whom standing was based would defeat this 

presumption and require a further showing of standing. Washington Public 

Power Supply System (WPPSS Nuclear Project 1), LBP-83-59, 18 NRC 667, 

669 (1983). 

2.10.4.1.2.2.A The Person an Organization Seeks to Represent Must Be a 

“Member” and Have Given “Authorization” 

A group does not have standing to assert the interest of plant workers, 

where it has no such workers among its members. Pacific Gas and 

Electric Co. (Diablo Canyon Nuclear Plant, Units 1 & 2), LBP-93-1, 

37 NRC 5, 11-12 (1993). 

An organization was denied representational standing where the person on 

whom it based its standing was not an individual member of the 

organization, but instead was serving as the representative of another 

JUNE 2011 PREHEARING MATTERS 83
organization. Florida Power and Light Co. (Turkey Point Nuclear 

Generating Plant, Units 3 & 4), ALAB-952, 33 NRC 521, 530-31 (1991). 

If individuals relied upon to establish representational standing for an 

organization fail to indicate they are members of that organization, their 

proximity to the facility cannot be used as a basis for representational 

standing. See Florida Power and Light Co. (Turkey Point Nuclear 

Generating Plant, Units 3 & 4) ALAB-952, 33 NRC 521, 530-31 (1991) 

(representational standing not present when individual relied on for 

standing is not organization member, but only representative of another 

organization), aff’d, CLI-91-13, 34 NRC 185 (1991). General Public Utilities 

Nuclear Corp. (Oyster Creek Nuclear Generating Station), LBP-96-23, 

44 NRC 143, 159 n.11 (1996). 

The petition of an organization to intervene must show that the person 

signing it has been authorized by the organization to do so. Detroit Edison 

Co. (Enrico Fermi Atomic Power Plant, Unit 2), LBP-79-1, 9 NRC 73, 77 

(1979). However, another Licensing Board granted an intervention petition 

filed by the highest ranking organizational officer without express authority 

from the organization. The Board was willing to infer the general authority 

of the officer to act on behalf of the organization to further its mission and 

purposes, pending official approval from the organization. The Board 

noted that the organization’s subsequent filing of an intervention petition 

ratified the earlier petition filed by its officer. Northeast Nuclear Energy Co.

(Millstone Nuclear Power Station, Unit 2), LBP-92-28, 36 NRC 202, 

206-207 (1992). 

An organization seeking to obtain standing in a representative capacity 

must demonstrate that a member has in fact authorized such 

representation. Houston Lighting and Power Co. (South Texas Project, 

Units 1 & 2), LBP-79-10, 9 NRC 439, 444 (1979), aff’d, ALAB-549, 

9 NRC 644 (1979); Detroit Edison Co. (Enrico Fermi Atomic Power Plant, 

Unit 2), LBP-79-1, 9 NRC 73, 77 (1979); Consumers Power Co. (Palisades 

Nuclear Plant), LBP-79-20, 10 NRC 108, 113 (1979); Commonwealth 

Edison Co. (Dresden Nuclear Power Station, Unit No. 1), LBP-82-52, 

16 NRC 183, 185 (1982), citing Houston Lighting and Power Co. (Allens 

Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377 (1979); 

see generally, CLI-81-25, 14 NRC 616 (1981), (Guidelines for Board); 

Cincinnati Gas and Electric Co. (Zimmer Nuclear Power Station, Unit 1), 

LBP-82-54, 16 NRC 210, 216 (1982), citing Houston Lighting and Power 

Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 

9 NRC 377 (1979); Duquesne Light Co. (Beaver Valley Power Station, 

Unit 2), LBP-84-6, 19 NRC 393, 411 (1984); Vermont Yankee Nuclear 

Power Corp. (Vermont Yankee Nuclear Power Station), LBP-87-7, 

25 NRC 116, 118 (1987); Georgia Power Co. (Vogtle Electric Generating 

Plant, Units 1 & 2), LBP-90-29, 32 NRC 89, 92 (1990); Long Island Lighting 

Co. (Shoreham Nuclear Power Station, Unit 1), LBP-91-1, 33 NRC 15, 30 

(1991); Sequoyah Fuels Corp. and General Atomics (Gore, Oklahoma 

Site), CLI-94-12, 40 NRC 64, 72 (1994); International Uranium (USA) 

Corporation (White Mesa Uranium Mill), LBP-97-14, 46 NRC 55, 57 (1997). 

Where the affidavit of the member is devoid of any statement that he wants 

PREHEARING MATTERS 84 JUNE 2011
the organization to represent his interests, it is unwarranted for the 

Licensing Board to infer such authorization, particularly where the 

opportunity was offered to revise the document and was ignored. Beaver 

Valley, supra, 19 NRC at 411. 

2.10.4.1.2.2.B Timing of Membership 

A petitioner organization cannot amend its petition to satisfy the timeliness 

requirements for filing to include an affidavit executed by someone who 

became a member after the due date for filing timely petition. Washington 

Public Power Supply System (WPSS Nuclear Project No. 1), LBP-83-16, 

17 NRC 479, 483 (1983). 

An organization cannot meet the “interest” requirement for standing by 

acquiring a new member considerably after the deadline for filing of 

intervention petitions who meets the “interest” requirement, but who has 

not established good cause for the out-of-time filing. Washington Public 

Power Supply System (WPPSS Nuclear Project No. 2), LBP-79-7, 

9 NRC 330, 335 (1979) 

2.10.4.1.2.3 Governments/Indian Tribes and Organizational Standing 

Although a member of a group with an interest in a proceeding must normally 

authorize the group to represent his or her interests to achieve standing for 

the group, such explicit authorization is not necessary in the case of a state 

representing as sovereign the interests of a number of its citizens. Sequoyah 

Fuels Corporation (Gore, Oklahoma Site Decommissioning) LBP-99-46, 

50 NRC 386, 394 (1999) citing Carolina Power & Light Co. (Shearon Harris 

Nuclear Power Plant), LBP-99-25, 50 NRC 25, 29 (1999); Private Fuel 

Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-98-13, 

48 NRC 26, 33 (1998). A state does not need to establish standing when 

attempting to intervene in a proceeding for a facility located within the state. 

Entergy Nuclear Vermont Yankee, L.L.C. and Entergy Nuclear Operations, 

Inc. (Vermont Yankee Nuclear Power Station), LBP-04-28, 60 NRC 548, 553 

(2004); Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating 

Units 2 & 3), LBP-08-13, 68 NRC 43, 60 (2008). 

When a state advises a Licensing Board that a proceeding involves a facility 

within its borders, the Licensing Board shall not require further demonstration 

of standing. Amergen Energy Co., LLC (Oyster Creek Nuclear Generating 

Station), LBP-06-7, 63 NRC 188, 194 (2006). 

State standing stems from its responsibility to protect the welfare of its 

citizenry and its proprietary interest in the natural resources within its 

boundaries. Sequoyah Fuels Corp. (Gore, Oklahoma Site), LBP-03-29, 

58 NRC 442, 448 (2003); see also Fansteel, Inc. (Muskogee, Oklahoma 

Facility), LBP-03-22, 58 NRC 363, 367 (2003). 

A state does not need the explicit authorization of its citizens to represent 

them in a proceeding. Sequoyah Fuels Corporation (Gore, Oklahoma Site 

Decommissioning), LBP-99-46, 50 NRC 386, 391 n.10 (1999) citing

JUNE 2011 PREHEARING MATTERS 85
International Uranium (USA) Corp. (Receipt of Material from Tonawanda, New 

York), LBP-98-21, 48 NRC 137, 145 (1998); Private Fuel Storage, L.L.C. 

(Independent Spent Fuel Storage Installation), LBP-98-7, 47 NRC 142 (1998). 

As the Commission has recognized in a somewhat different context, the 

strong interest that a governmental body has in protecting the individuals and 

territory that fall under its sovereign guardianship establishes an 

organizational interest for standing purposes. See Private Fuel Storage, 

L.L.C. (Independent Spent Fuel Storage Installation), CLI-98-13, 48 NRC 26, 

33 (1998); Carolina Power and Light Co. (Shearon Harris Nuclear Power 

Plant), LBP-99-25, 50 NRC 25, 29 (1999). 

As the owner of streams, lakes, air, and property on or near the site, 

Oklahoma has catalogued a number of asserted injuries to those interests 

resulting from alleged pollution and discharges emanating as a result of the 

Second Revised Site Decommissioning Plan (SRSDP). That such pollution or 

those discharges may conform to regulatory criteria is not controlling for 

standing purposes – the state’s interests will nevertheless be affected by the 

SRSDP. Sequoyah Fuels Corporation (Gore, Oklahoma Site 

Decommissioning) LBP-99-46, 50 NRC 386, 395 (1999) citing Atlas Corp.

(Moab, Utah Facility), LBP-97-9, 45 NRC 414, 425 (1997); General Public 

Utilities Corp. (Oyster Creek Nuclear Generating Station), LBP-96-23, 44 NRC 

143, 158 (1996). 

Where the New York State Attorney General has had involvement with the 

New York Public Service Commission’s license transfer proceeding regarding 

the same parties at issue here, he does not have to establish standing to 

participate in the hearing. He may participate in a manner analogous to a 

participating government under 10 C.F.R. § 2.315(c) (formerly § 2.715(c)), if a 

hearing is granted, because the Commission has long recognized the benefits 

of participation in NRC proceedings by representatives of interested states, 

counties, and municipalities. Niagara Mohawk Power Corp. (Nine Mile Point, 

Units 1 & 2), CLI-99-30, 50 NRC 333, 344-45 (1999). 

Local government entities, such as school districts or townships, have 

standing to intervene in a license transfer case when the township is the locus 

of the power plant because it is in a position analogous to that of an individual 

living or working within a few miles of the plant. Power Authority of the State 

of New York (James FitzPatrick Nuclear Power Plant; Indian Point Nuclear 

Generating Unit 3), CLI-00-22, 52 NRC 266, 294-295 (2000). 

A local government with jurisdiction over a geographical area that will 

admittedly be affected by a reactor’s operations – but which does not actually 

contain the reactor – does nonetheless have standing in a license renewal 

adjudication regarding the reactor. Dominion Nuclear Connecticut, Inc.

(Millstone Nuclear Power Station, Units 2 & 3), LBP-05-16, 62 NRC 56, 66-67 

(2005). 

10 C.F.R. § 2.315(c) (formerly § 2.715(c)) does not give all governmental or 

quasi-governmental entities the right to participate in NRC adjudicative 

proceedings as full parties. Yankee Atomic Electric Co. (Yankee Nuclear 

PREHEARING MATTERS 86 JUNE 2011
Power Station), LBP-98-12, 47 NRC 343 (1998), aff’d, CLI-98-21, 48 NRC 185 

(1998). 10 C.F.R. § 2.315(c) does allow interested government entities that 

have not been admitted as parties under § 2.309 to have a “reasonable 

opportunity to participate in a hearing.” Progress Energy Carolinas, Inc.

(Shearon Harris Nuclear Power Plant, Units 2 & 3), LBP-08-21, 68 NRC 554, 

560 (2008). 

Indian tribes, however, have been permitted to intervene as an entity, without 

demonstrating that a particular tribe member has an interest and wishes to be 

represented by the tribe. They also have participated in the more routine 

manner of identifying a tribe member who has individual standing but wishes 

representation. Northern States Power Co. (Independent Spent Fuel Storage 

Installation), LBP-96-22, 44 NRC 138, 141 (1996). 

A legislator lacks standing to intervene on behalf of the interests of his 

constituents who live near a nuclear facility. However, the legislator may 

participate in a proceeding in a private capacity if he can establish his own 

personal standing. Combustion Engineering. Inc. (Hematite Fuel Fabrication 

Facility), LBP-89-23, 30 NRC 140, 145 (1989); Babcock and Wilcox (Apollo, 

Pennsylvania Fuel Fabrication Facility), LBP-92-35, 36 NRC 355, 358, n. 9 

(1992); Shieldalloy Metallurgical Corp. (Amendment Request for 

Decommissioning of the Newfield, New Jersey Facility), LBP-07-5, 

65 NRC 341, 351 (2007). 

By virtue of 10 C.F.R. § 2.315(c), a governmental entity that does not 

otherwise meet the requirements to qualify as a party may participate in the 

proceeding on one or more admitted contentions by introducing evidence, 

interrogating witness when permitted, providing advice, filing proposed 

findings, and seeking Commission review. Shieldalloy Metallurgical Corp.

(Amendment Request for Decommissioning of the Newfield, New Jersey 

Facility), LBP-07-5, 65 NRC 341, 345 (2007). 

When petitioner established standing and admissibility of one contention, 

Board could defer ruling on remaining contentions until Staff completed safety 

evaluation report (SER) and EIS in order to permit the petitioner to determine 

if those documents addressed its concerns or raised new ones. Shieldalloy

Metallurgical Corp. (Amendment Request for Decommissioning of the 

Newfield, New Jersey Facility), LBP-07-5, 65 NRC 341, 360 (2007); U.S. Army

(Jefferson Proving Ground Site), LBP-06-6, 63 NRC 167, 185-86 (2006). 

The Commission questioned whether this approach was consistent with the 

Commission’s policy of promptly identifying issues of contention and 

maintaining the focus of the proceedings on the application, as opposed to the 

Staff’s review. Nonetheless, the Commission recognized that this approach 

may be appropriate in some limited and exceptional circumstances. 

Shieldalloy Metallurgical Corp. (Amendment Request for Decommissioning of 

the Newfield, New Jersey Facility), CLI-07-20, 65 NRC 499, 501-02 (2007). 

On remand, the Board determined that exceptional circumstances existed that 

justified deferring ruling on the remaining contentions until the NRC completed 

its SER and EIS. Specifically, given the uncertainty regarding ultimate 

JUNE 2011 PREHEARING MATTERS 87
disposal of the remaining waste on site, the Board found it prudent to await the 

results of the SER, and the impact that document may have on such disposal 

plans, before examining the remainder of the contentions. Shieldalloy

Metallurgical Corp. (Amendment Request for Decommissioning of the 

Newfield, New Jersey Facility), LBP-07-8, 65 NRC 531, 535-38 (2007). 

2.10.4.1.3 Standing to Intervene in Export Licensing Cases 

In Edlow International Co., CLI-76-6, 3 NRC 563 (1976), the Commission dealt 

with the question as to whether the Natural Resources Defense Council and the 

Sierra Club could intervene as of right and demand a hearing in an export 

licensing case. The case involved the export of fuel to India for the Tarapur 

project. The petitioners contended that at least one member of the Sierra Club 

and several members of the National Resources Defense Council lived in India 

and thus would be subject to any hazards created by the reactor. 

In rejecting the argument that there was a right to intervene, the Commission 

stated: 

If petitioners allege a concrete and direct injury their claim of standing is not 

impaired merely because similar harm is suffered by many others. However, 

if petitioners’ asserted harm is a “generalized grievance” shared in 

substantially equal measure by all or a large class of citizens, that harm alone 

normally does not warrant exercise of jurisdiction. 3 NRC at 576. The 

Commission held that the alleged interests were de minimis (3 NRC at 575), 

noting that, while in domestic licensing cases claims of risk that were 

somewhat remote have been recognized as forming a basis for intervention, 

Section 189a of the Act (42 U.S.C. § 2239(a)) would not be given such a 

broadly permissive reading (3 NRC at 571) in export licensing cases. 

Consistent with its decision in Edlow International Co., CLI-76-6, 3 NRC 563 

(1976), the Commission has held that a petitioner is not entitled to intervene as a 

matter of right where its petition raises abstract issues relating to the conduct of 

U.S. foreign policy and protection of the national security. The petitioner must 

establish that it will be injured and that the injury is not a generalized grievance 

shared in substantially equal measure by all or a large class of citizens. Ten 

Applications, CLI-77-24, 6 NRC 525, 531 (1977); Transnuclear, Inc. (Export of 

93.15% Enriched Uranium), CLI-94-1, 39 NRC 1 (1994); Transnuclear, Inc.

(Export of 93.3% Enriched Uranium), CLI-98-10, 47 NRC 333, 336 (1998). 

Nevertheless, the Commission may, in its discretion, direct further public 

proceedings if it determines that such proceedings would be in the public interest 

even though the petitioner has not established a right under Section 189 of the 

AEA to intervene or demand a public hearing. Id. at 532. See also Braunkohle 

Transport USA (Import of South African Uranium Ore Concentrate), CLI-87-6, 

25 NRC 891, 893 (1987), citing 10 C.F.R. § 110.84(a). 

The contention that a major federal action would have a significant environmental 

impact on a foreign nation is not cognizable under NEPA, and cannot support 

intervention. Babcock & Wilcox (Application for Consideration of Facility Export 

License), CLI-77-18, 5 NRC 1332, 1348 (1977). 

PREHEARING MATTERS 88 JUNE 2011
Judicial precedents will be relied on in deciding issues of standing to intervene in 

export licensing. Westinghouse Electric Corp. (Export to South Korea), 

CLI-80-30, 12 NRC 253, 258 (1980). The Commission, throughout its history, 

has applied judicial standing tests to its export licensing proceedings. 

Westinghouse Electric Corporation (Nuclear Fuel Export License for Czech 

Republic – Temelin Nuclear Power Plants), CLI-94-7, 39 NRC 322, 331 (1994). 

Institutional interests in disseminating information and educating the public do not 

establish a claim of right under Section 189.a. of the AEA for purposes of 

standing because they would not constitute interests affected by the proceeding. 

There must be a causal nexus between the refusal to allow standing and the 

inability to disseminate information. Westinghouse Electric Corp. (Export to 

South Korea), CLI-80-30, 12 NRC 253, 259 (1980). 

Commission regulations in 10 C.F.R. § 110.84(a)(1) provide that if a petitioner is 

not entitled to an AEA Section 189.a. hearing as a matter of right because of a 

lack of standing, the Commission will nevertheless consider whether such a 

hearing would be in the public interest and would assist the Commission in 

making the statutory determinations required by the AEA. Westinghouse Electric 

Corporation (Nuclear Fuel Export License for Czech Republic – Temelin Nuclear 

Power Plants), CLI-94-7, 39 NRC 322, 333 (1994). 

Organization’s institutional interest in providing information to the public and the 

generalized interest of its membership in minimizing danger from proliferation are 

insufficient for to confer standing on the organization under Section 189.a. of the 

AEA. Transnuclear, Inc., CLI-94-1, 39 NRC 1, 5 (1994). See Transnuclear, Inc.

(Export of 93.3% Enriched Uranium), CLI-00-16, 52 NRC 68, 72 (2000). See 

also Transnuclear, Inc. (Export of 93.3% Enriched Uranium), CLI-99-15, 49 NRC 

366, 367-368 (1999); Transnuclear, Inc. (Export of 93.3% Enriched Uranium), 

CLI-98-10, 47 NRC 333, 336 (1998); U.S. Dep’t of Energy, CLI-04-17, 59 NRC 

357, 364 (2004). 

2.10.4.1.4 Standing to Intervene in License Transfer Proceedings 

As part of a petitioner’s required demonstration of standing for intervention in a 

license transfer proceeding, the petitioner must show it “has suffered [or will 

suffer] a distinct and palpable harm that constitutes injury-in-fact within the zone 

of interests arguably protected by the governing statute [and that this] injury can 

fairly be traced to the challenged action” (the approval of the license transfer). 

FirstEnergy Nuclear Operating Co. (Beaver Valley Power Station, Units 1 & 2; 

Davis-Besse Power Station, Unit 1; Perry Nuclear Power Plant, Unit 1), CLI-06-2, 

63 NRC 9, 13-14 (2006) (quoting Yankee Atomic Elec. Co. (Yankee Nuclear 

Power Station), CLI-96-1, 43 NRC 1, 6 (1996)). 

Local government entities, such as school districts or townships, have standing 

to intervene in a license transfer case when the township is the locus of the 

power plant because it is in a position analogous to that of an individual living or 

working within a few miles of the plant. Power Authority of the State of New 

York, et. al. (James FitzPatrick Nuclear Power Plant; Indian Point Nuclear 

Generating Unit 3), CLI-00-22, 52 NRC 266, 294-295 (2000). 

JUNE 2011 PREHEARING MATTERS 89
The Commission has granted standing in license transfer proceedings to 

petitioners who raised similar assertions and who were authorized to represent 

members living or active quite close to the site. Power Authority of the State of 

New York, et. al. (James FitzPatrick Nuclear Power Plant; Indian Point Nuclear 

Generating Unit 3), CLI-00-22, 52 NRC 266, 293-294 (2000), citing Nuclear 

Power Corp. (Vermont Yankee Nuclear Power Station), CLI-00-20, 52 NRC 151, 

163-64 (2000); GPU Nuclear, Inc. (Oyster Creek Nuclear Generating Station), 

CLI-00-6, 51 NRC 193, 202-03 (2000); Northern States Power Co. (Monticello 

Nuclear Generating Plant; Prairie Island Nuclear Generating Plant, Units 1 & 2; 

Prairie Island Independent Spent Fuel Storage Installation), CLI-00-14, 52 NRC 

37, reconsid. denied, CLI-00-19, 52 NRC 135, 135 (2000). 

Employees who work inside a nuclear power plant should ordinarily be accorded 

standing as long as the alleged injury is fairly traceable to the license transfer. 

Power Authority of the State of New York, et. al. (James FitzPatrick Nuclear 

Power Plant; Indian Point Nuclear Generating Unit 3), CLI-00-22, 52 NRC 266, 

294 (2000). However, in an indirect license transfer proceeding, an employee’s 

standing cannot be based on proximity alone but must demonstrate how the 

transfer could harm the employee’s interest. Entergy Nuclear Operations, Inc. 

and Entergy Nuclear Fitzpatrick, LLC (James L. FitzPatrick Nuclear Power Plant) 

et al, CLI-08-19, 68 NRC 251, 260-61 (2008) (finding that a union did not have 

representational standing based on a union member and plant employee’s 

authorization affidavit where the affidavit rested on proximity alone and failed to 

state precisely how the employee was aggrieved by the proposed transfer). 

A petitioner’s involvement – both personal and through organizations – in 

numerous activities related to a particular nuclear power plant was not enough to 

demonstrate injury to his financial, property, or other interests. Therefore the 

petitioner had not demonstrated “traditional standing.” “Proximity standing” 

differs from “traditional standing” in that the petitioner claiming it need not make 

an express showing of harm. Rather, “proximity standing” rests on the 

presumption that an accident associated with the nuclear facility could adversely 

affect the health and safety of people working, living, or regularly engaging in 

activities offsite but within a certain distance of that facility. In ruling on claims of 

“proximity standing,” the Commission determines the radius beyond which it 

believes there is no longer an “obvious potential for offsite consequences” by 

“taking into account the nature of the proposed action and the significance of the 

radioactive source” (footnotes omitted). A situation where a corporate merger 

would not have resulted in changes to the physical plant, operating procedures, 

design-basis accident analysis, management, or personnel at a nuclear power 

plant, and all merger activity occurred several corporate levels above the current 

licensee, the Commission held that associated license transfer raised no 

“obvious potential for offsite consequences.” Therefore, the petitioner’s 

presumed claim of “proximity standing” lacked merit. Amergen Energy Co., LLC

(Three Mile Island Nuclear Station, Unit 1), CLI-05-25, 62 NRC 572, 573-74 

(2005); see also Exelon Generation Co., LLC and PSEG Nuclear, LLC (Peach 

Bottom Atomic Power Station, Units 2 & 3), CLI-05-26, 62 NRC 577, 579-83 

(2005); Entergy Nuclear Operations, Inc. and Entergy Nuclear Fitzpatrick, LLC

(James L. FitzPatrick Nuclear Power Plant) et al, CLI-08-19, 68 NRC 251, 268-69 

(2008). 

PREHEARING MATTERS 90 JUNE 2011
The initial issue in deciding a question of “proximity standing” is whether the kind 

of action at issue, when considered in light of the radioactive sources at the plant, 

justifies a presumption that the licensing action “could plausibly lead to the offsite 

release of radioactive fission products from...the...reactors.” The petitioner 

carries the burden of making this showing. If the petitioner fails to show that a 

particular licensing action raises an “obvious potential for offsite consequences,” 

then the standing inquiry reverts to a “traditional standing” analysis of whether 

the petitioner has made a specific showing of injury, causation, and 

redressability. In a license transfer case, the Commission concluded that the 

risks associated with the transfer of the non-operating, 50% ownership interest in 

a power reactor were de minimis and therefore justified no “proximity standing” at 

all. Exelon Generation Co., LLC & PSEG Nuclear, LLC (Peach Bottom Atomic 

Power Station), CLI-05-26, 62 NRC 577, 581 (2005). 

In a license transfer proceeding, the Commission found a petitioner’s “highly 

general comment” that it and its members “compete with [the entities involved in 

the transfer] for generation...services” to be too vague and general to show a real 

potential for injury sufficient for standing. Petitioners failed to explain how their 

distribution, generation, and transmission rights would be adversely affected in 

connection with certain antitrust license conditions that they claimed would 

allegedly be rendered unenforceable by the license transfer. FirstEnergy Nuclear 

Operating Co. (Beaver Valley Power Station, Units 1 & 2; Davis-Besse Power 

Station, Unit 1; Perry Nuclear Power Plant, Unit 1), CLI-06-2, 63 NRC 9, 16 

(2006) (citing GPU Nuclear, Inc. (Oyster Creek Nuclear Generating Station), 

CLI-00-6, 51 NRC 193, 203 (2000); Pacific Gas and Elec. Co. (Diablo Canyon 

Nuclear Power Plant, Units 1 & 2), CLI-02-16, 55 NRC 317, 337 (2002)). 

2.10.4.2 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. In determining whether 

discretionary intervention should be permitted, the Commission has indicated that 

the Licensing Board should be guided by the following factors, among others: 

 (1) 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 interest in the proceeding. 

 (iii) The possible effect of any order which may be entered in the 

 proceeding on the requestor’s/petitioner’s interest. 

 (2) Weighing against allowing intervention – 

 (i) The availability of other means whereby 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. 

JUNE 2011 PREHEARING MATTERS 91
 (iii) The extent to which requestor’s/petitioner’s participation will 

 inappropriately broaden or delay the proceeding. 

Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 & 2), 

CLI-76-27, 4 NRC 610, 616 (1976). These six factors were originally developed in 

case law, but are now codified at 10 C.F.R. § 2.309(e)(1)-(2). See Andrew 

Siemaszko, CLI-06-16, 63 NRC 708, 715-16 (2006). 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 import factor weighing 

against discretionary intervention is the potential to appropriately broaden or delay 

the proceeding. 

The discretionary intervention doctrine comes into play only in circumstances where 

standing to intervene as a matter of right has not been established. Duke Power 

Co. (Oconee Nuclear Station and McGuire Nuclear Station), ALAB-528, 9 NRC 146, 

148 n.3 (1979). 

Although under the NRC rules the “standing” requirement does not apply to petitions 

for discretionary intervention, the “admissible contention” requirement does. 

Andrew Siemaszko, CLI-06-16, 63 NRC 708, 719-20 (2006). 

The Commission has broad discretion to allow intervention where it is not a matter 

of right. Such intervention will not be granted where conditions have already been 

imposed on a licensee, and no useful purpose will be served by that intervention. 

Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), 

CLI-80-10, 11 NRC 438, 442 (1980). 

Under the six-factor test for discretionary intervention, a primary consideration is the 

first factor of assistance in developing a sound record. See Portland General 

Electric Co. (Pebble Springs Nuclear Plant, Units 1 & 2), CLI-76-27, 4 NRC 610, 617 

(1976); see also Andrew Siemaszko, CLI-06-16, 63 NRC at 716; General Public 

Utilities Nuclear Corp. (Oyster Creek Nuclear Generating Station), LBP-96-23, 

44 NRC 143, 160 (1996). 

For discretionary intervention, the burden of convincing the Licensing Board that a 

petitioner could make a valuable contribution lies with the petitioner. Nuclear 

Engineering Co., Inc. (Sheffield, Ill. Low-Level Radioactive Waste Disposal Site), 

ALAB-473, 7 NRC 737, 745 (1978). Considerations in determining the petitioner’s 

ability to contribute to development of a sound record include: 

 (1) a petitioner’s showing of significant ability to contribute on substantial 

 issues of law or fact which will not be otherwise properly raised or 

 presented; 

 (2) the specificity of such ability to contribute on those substantial issues of 

 law or fact; 

 (3) justification of time spent on considering the substantial issues of law or 

 fact; 

 (4) provision of additional testimony, particular expertise, or expert 

 assistance; 

PREHEARING MATTERS 92 JUNE 2011
 (5) specialized education or pertinent experience. 

Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), LBP-81-1, 13 NRC 27, 33 

(1981) (and cases cited therein). See Florida Power and Light Co. (Turkey Point 

Nuclear Generating Plant, Units 3 & 4), LBP-90-24, 32 NRC 12, 16-17 (1990), aff’d, 

ALAB-952, 33 NRC 521, 532 (1991). Where a petitioner failed to respond to a 

Licensing Board order seeking clarification following presentation of evidence 

casting shadow on his purported qualifications, the Board was entitled to conclude 

that a petitioner would not help to create a sound record, and that the veracity of his 

other statements were suspect, leading to denial of his petition. Houston Lighting 

and Power Co. (South Texas Project, Units 1 & 2), LBP-79-10, 9 NRC 439, 457-458 

(1979). 

The primary factor to be considered is the significance of the contribution that a 

petitioner might make. Pebble Springs, supra. Thus, foremost among the factors 

listed above is whether the intervention would likely produce a valuable contribution 

to the NRC’s decisionmaking process on a significant safety or environmental issue 

appropriately addressed in the proceeding in question. Tennessee Valley Authority

(Watts Bar Nuclear Plant, Units 1 & 2), ALAB-413, 5 NRC 1418 (1977). See also

Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-470, 

7 NRC 473, 475 n.2 (1978); Sacramento Municipal Utility District (Rancho Seco 

Nuclear Generating Station), LBP-92-23, 36 NRC 120, 131-32 (1992); Tennessee 

Valley Authority (Sequoyah Nuclear Plant, Units 1 & 2; Watts Bar Nuclear Plant, 

Unit 1), LBP-02-02-14, 56 NRC 15, 28 (2002). The need for a strong showing as to 

potential contribution is especially pressing in an operating license proceeding 

where no petitioners have established standing as of right and where, absent such a 

showing, no hearing would be held. Watts Bar, supra, 5 NRC at 1422. Where there 

are no intervenors as of right, a Licensing Board will determine whether a 

discernible public interest would be served by ordering a hearing based on a grant 

of discretionary intervention. Envirocare of Utah, Inc., LBP-92-8, 35 NRC 167, 

183-84 (1992). 

Discretionary intervention is meant to ensure a sound adjudicatory record, not 

simply to provide a second representative to assist (allegedly) ill-represented 

parties. Granting discretionary intervention based on an admitted party’s purported 

lack of knowledge and experience, as opposed to the petitioner’s relevant 

knowledge and experience, constitutes legal error. Andrew Siemaszko, CLI-06-16, 

63 NRC at 723. 

As to the second and third factors to be considered with regard to discretionary 

intervention (the nature and extent of property, financial or other interests in the 

proceeding and the possible effect any order might have on the petitioner’s interest), 

interests which do not establish a right to intervention because they are not within 

the “zone of interests” to be protected by the Commission should not be considered 

as positive factors for the purposes of granting discretionary intervention. Detroit 

Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-11, 7 NRC 381, 388, 

aff’d, ALAB-470, 7 NRC 473 (1978). 

In order for the Commission to grant a discretionary hearing in an export license 

proceeding, a petitioner must reflect in its submissions that it would offer something 

in a hearing that would generate significant new information or insight about the 

JUNE 2011 PREHEARING MATTERS 93
challenged action. The offer of “new evidence” that consists of documents that have 

already been in the public domain for some time does not meet the criteria for the 

grant of a discretionary hearing. Westinghouse Electric Corporation (Nuclear Fuel 

Export License for Czech Republic – Temelin Nuclear Power Plants), CLI-94-7, 

39 NRC 322, 334 (1994). 

For a case in which the Commission’s discretionary intervention rule was applied, 

see Virginia Electric & Power Co. (North Anna Power Station, Units 1 & 2), 

ALAB-363, 4 NRC 631 (1976), where, despite petitioner’s lack of judicial standing, 

intervention was permitted based upon petitioner’s demonstration of the potential 

significant contribution it could make on substantial issues of law and fact not 

otherwise raised or presented and a showing of the importance and immediacy of 

those issues. 

Babcock and Wilcox (Apollo, Pennsylvania Fuel Fabrication Facility, LBP-93-4, 

37 NRC 72, 94 n.66 (1993) (if a hearing petitioner does not request permission to 

intervene in a proceeding as a matter of discretion, see Pebble Springs, CLI-76-27, 

4 NRC at 614-17, it is not necessary to determine whether it could be afforded such 

intervention). 

2.10.5 Contentions of Intervenors 

Contentions constitute the method by which the parties to a licensing proceeding frame 

issues under NRC practice, similar to the use of pleadings in their judicial counterparts. 

Such contentions may be amended or refined as a result of additional information 

gained by discovery. Texas Utilities Generating Co. (Comanche Peak Steam Electric 

Station, Units 1 & 2), LBP-81-25, 14 NRC 241, 243 (1981). In proving its claim, a 

petitioner is not limited to the specific facts relied on to have its contention accepted, as 

long as the additional facts are material to the contention. Pacific Gas and Electric Co.

(Diablo Canyon Nuclear Plant, Units 1 & 2), LBP-93-1, 37 NRC 5, 20-21 (1993). 

In order to be admissible, a contention must comply with every requirement listed in 

10 C.F.R. § 2.309(f)(1). U.S. Army (Jefferson Proving Ground Site), LBP-06-27, 

64 NRC 438 (2006); U.S. Army (Jefferson Proving Ground Site), LBP-07-7, 

65 NRC 507 (2007); Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power 

Station, Unit 3), LBP-08-9, 67 NRC 421 (2008); Entergy Nuclear Operations, Inc.

(Indian Point Nuclear Generating Units 2 & 3), LBP-08-13, 68 NRC 43, 60-61 (2008). 

“[A] contention must have a basis in fact or law and...it must entitle a petitioner to 

relief.” Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 3), 

LBP-02-5, 55 NRC 131, 141 (2002); Dominion Nuclear Connecticut, Inc. (Millstone 

Nuclear Power Station, Unit 3), LBP-08-9, 67 NRC 421 (2008). Neither the 

Commission’s Rules of Practice nor the pertinent statement of consideration puts an 

absolute or relative limit on the number of contentions that may be admitted to a 

licensing proceeding. See 10 C.F.R. § 2.309(f) (formerly § 2.714(a), (b)); 

69 Fed. Reg. 2,182, Jan. 14, 2004; Cleveland Electric Illuminating Co. (Perry Nuclear 

Power Plant, Units 1 & 2), ALAB-706, 16 NRC 1754, 1757 (1982). The Commission, 

presiding officer or the ASLB will grant the request/petition if it determines that the 

requestor/petitioner has standing under the standing provisions of 2.309(d) and has 

proposed at least one admissible contention. As a general matter, the Commission will 

defer to Board rulings on contention admissibility in the absence of clear error or abuse 

PREHEARING MATTERS 94 JUNE 2011
of discretion. U.S. Dep’t of Energy (High-Level Waste Repository), CLI-09-14, 69 NRC 

580, 584 (2009). 

Note that a state participating as an “interested State” under 10 C.F.R. § 2.315(c) 

(formerly § 2.715(c)) need not set forth in advance any affirmative contentions of its 

own. Project Management Corporation (Clinch River Breeder Reactor Plant), ALAB354, 4 NRC 383, 392-393 (1976). However, government entities seeking to litigate 

their own contentions are held to the same pleading rules as everyone else. Dominion 

Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-05-24, 

62 NRC 551, 567-68 (2005). 

Since a mandatory hearing is not required at the operating license stage, Licensing 

Boards should “take the utmost care” to assure that the “one good contention rule” is 

met in such a situation because, absent successful intervention, no hearing need be 

held. Cincinnati Gas & Electric Co. (William H. Zimmer Nuclear Power Station), 

ALAB-305, 3 NRC 8, 12 (1976). See also Gulf States Utilities Co. (River Bend Station, 

Units 1 & 2), ALAB-183, 7 AEC 222, 226 n.10 (1974). 

Where intervenors have been consolidated, it is not necessary that a contention or 

contentions be identified to any one of the intervening parties, so long as there is at 

least one contention admitted per intervenor. Cleveland Electric Illuminating Co. (Perry 

Nuclear Power Plant, Units 1 & 2), LBP-81-35, 14 NRC 682, 687 (1981). 

A Licensing Board should not address the merits of a contention when determining its 

admissibility. Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), 

LBP-82-106, 16 NRC 1649, 1654 (1982), citing Allens Creek, supra, 11 NRC at 542; 

Kansas Gas & Electric Co. (Wolf Creek Generating Station, Unit 1), LBP-84-1, 

19 NRC 29, 34 (1984); Commonwealth Edison Co. (Braidwood Nuclear Power Station, 

Units 1 & 2), LBP-85-11, 21 NRC 609, 617 (1985), rev’d and remanded on other 

grounds, CLI-86-8, 23 NRC 241 (1986); Carolina Power and Light Co. and North 

Carolina Eastern Municipal Power Agency (Shearon Harris Nuclear Power Plant), 

ALAB-837, 23 NRC 525, 541 (1986); Texas Utilities Electric Co. (Comanche Peak 

Steam Electric Station, Unit 1), ALAB-868, 25 NRC 912, 933 (1987); Vermont Yankee 

Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), LBP-88-26, 

28 NRC 440, 446 (1988), reconsidered on other grounds, LBP-89-6, 29 NRC 127 

(1989), rev’d on other grounds, ALAB-919, 30 NRC 29 (1989), vacated in part on other 

grounds and remanded, CLI-90-4, 31 NRC 333 (1990), request for clarification, 

ALAB-938, 32 NRC 154 (1990), clarified, CLI-90-7, 32 NRC 129 (1990); Sierra Club v. 

NRC, 862 F.2d 222, 228 (9th Cir. 1988). See Consumers Power Co. (Midland Plant, 

Units 1 & 2), LBP-84-20, 19 NRC 1285, 1292 (1984), citing Allens Creek, supra, 

11 NRC 542; Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 & 2), 

ALAB-182, 7 AEC 210, 216 (1974), rev’d on other grounds, CLI-74-12, 7 AEC 203 

(1974); and Duquesne Light Co. (Beaver Valley Power Station, Unit 1), ALAB-109, 

6 AEC 243, 244-45 (1973). What is required is that an intervenor state the reasons for 

its concern. Seabrook, supra, citing Allens Creek, supra. 

Determining whether a contention is adequately supported by a concise allegation of 

the facts or expert opinion is not a hearing on the merits. A petitioner does not have to 

prove its contention at the admissibility stage. However, supporting material provided 

by a petitioner, including those portions of the material that are not relied upon, is 

subject to Board scrutiny. The contention admissibility standard is less than is required 

JUNE 2011 PREHEARING MATTERS 95
at the summary disposition stage. USEC, Inc. (American Centrifuge Plant), 

LBP-05-28, 62 NRC 585, 596-97 (2005). 

A contention about a matter not covered by a specific rule need only allege that the 

matter poses a significant safety problem. That would be enough to raise an issue 

under the general requirement for operating licenses [10 C.F.R. § 50.57(a)(3)] for 

finding of reasonable assurance of operation without endangering the health and safety 

of the public. Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), LBP-82-116, 

16 NRC 1937, 1946 (1982). 

Petitioners who have established their standing to present a contention that seeks 

modification or rejection of a nuclear facility decommissioning plan so as to avoid 

health and safety or environmental injury to the public also can pursue any contention 

alleging such modification/rejection relief based on circumstances such as purported 

occupational exposure to facility workers from decommissioning activities. See

Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-96-1, 43 NRC 1, 6 

(1996); Yankee Atomic Electric Co. (Yankee Nuclear Power Station), LBP-96-2, 

43 NRC 61, 70 (1996). 

The basis for a contention may not be undercut, and the contention thereby excluded, 

through an attack on the credibility of the expert who provided the basis for the 

contention. Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 

& 2), LBP-82-98, 16 NRC 1459, 1466 (1982), citing Houston Lighting and Power Co.

(Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 NRC 542 (1980). 

Orange County expressly approved the final language of its admitted environmental 

contention. The County should not now be heard to complain that the contention as 

admitted was too narrow. Carolina Power & Light Co. (Shearon Harris Nuclear Power 

Plant), CLI-01-11, 53 NRC 370, 390 (2001). 

2.10.5.1 Scope of Contentions 

The subject matter of all contentions is limited to the scope of the proceeding 

delineated by the Commission in its hearing notice and referral order delegating to 

the Licensing Board the authority to conduct the proceeding. See, Florida Power & 

Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), LBP-01-6, 

53 NRC 138, 151 (2001); PPL Susquehanna LLC (Susquehanna Steam Electric 

Station, Units 1 & 2), LBP-07-10, 66 NRC 1, 23 (2007). 

The issue sought to be raised by a contention must fall within the scope of the 

issues specified in the Notice of Opportunity for Hearing. Arizona Public Service 

Co. (Palo Verde Nuclear Generating Station, Units 1, 2, & 3), LBP-91-19, 

33 NRC 397, 411-12 (1991), appeal denied on other grounds, CLI-91-12, 

34 NRC 149 (1991); Northeast Nuclear Energy Co. (Millstone Nuclear Power 

Stations, Units 2 & 3), LBP-01-10, 53 NRC 273, 339 (2001). 

The scope of permissible contentions is normally bounded by the scope of the 

proceeding itself. Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power 

Station, Unit 3), LBP-08-9, 67 NRC 421 (2008). On remand from the Commission, 

however, the scope of issues is confined to issues identified by the Commission. 

Beyond that, however, an intervenor may seek to file late-filed contentions, subject 

PREHEARING MATTERS 96 JUNE 2011
to a balancing of the [eight] factors set forth in 10 C.F.R. § 2.309(c)(1) (formerly 

§ 2.714(a)), within the scope of the entire proceeding. Sacramento Municipal Utility 

District (Rancho Seco Nuclear Generating Station), LBP-93-23, 38 NRC 200, 206 

(1993). 

In a license amendment proceeding, a petitioner’s contentions must focus on the 

issues identified in the Notice of Hearing, the amendment application, and the 

Staff’s environmental responsibilities relating to the application. Long Island 

Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-91-39, 34 NRC 273, 

282 (1991). Absent a waiver pursuant to 10 C.F.R. § 2.335, Category 1 issues 

cannot be addressed in a license renewal proceeding. Category 2 issues, on the 

other hand, are not “essentially similar” for all plants because they must be reviewed 

on a site-specific basis; accordingly, challenges relating to these issues are properly 

part of a license renewal proceeding. Entergy Nuclear Operations, Inc. (Indian Point 

Nuclear Generating Units 2 & 3), LBP-08-13, 68 NRC 67 (2008). A petitioner’s 

allegation that a prior Licensing Board ruling is erroneous is a request for 

reconsideration and is not a proper subject for a contention. Shoreham, supra. 34 

NRC at 282; Northeast Nuclear Energy Co. (Millstone Nuclear Power Station, Unit 

3), LBP-98-28, 48 NRC 279 (1998). 

When an issue arises as to the proper scope of a contention, one must go back to 

the bases set forth in support of contention. Entergy Nuclear Generation Co. and 

Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-11, 

71 NRC __ (March 26, 2010) (slip op. at 28). The scope of a contention is limited to 

its terms coupled with its stated bases; intervenors are not free to change the focus 

of an admitted contention at will to add “a host of new issues and objections that 

could have been raised at the outset.” Id. Where warranted, contentions may be 

amended, but it is impermissible “to stretch the scope of admitted contentions 

beyond their reasonably inferred bounds.” Id. 

Thus, if in preparing for an evidentiary hearing on a contention, an intervenor 

becomes aware of information that it may wish to present as evidence in the 

hearing, such information would – even if not specifically stated in the original 

contention and bases – be relevant if it falls within the “envelope,” “reach,” or “focus” 

of the contention when read with the original bases offered for it. If it falls outside 

such ambit, then an amended contention would be necessary in order for the new 

information to be considered relevant and admissible. Duke Energy Corp. (Catawba 

Nuclear Station, Units 1 & 2), LBP-04-12, 59 NRC 388, 391 (2004) (characterizing 

Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear 

Station, Units 1 & 2), CLI-02-28, 56 NRC 373, 379 (2002) and Pub. Serv. Co. of 

New Hampshire (Seabrook Station, Units 1 & 2), ALAB-899, 28 NRC 93, 97 (1988), 

aff’d sub nom. Massachusetts v. NRC, 924 F.2d 311 (D.C. Cir. 1991), cert. denied, 

502 U.S. 899 (1991)). 

Where an intervenor has provided additional specific information that falls within the 

ambit of its original admitted contention, it is not really an “amendment” at all. Duke 

Energy Corp. (Catawba Nuclear Station, Units 1 & 2), LBP-04-12, 59 NRC 388, 391 

(2004). [The Board in LBP-04-12 also commented in a footnote that the principle 

would apply to information that any party wished to submit as evidence in a 

proceeding, not just an intervenor. Id. at 391 n.3. Both aspects of the Board’s 

decision could be considered dicta because the Board went on to address the lateJUNE 2011 PREHEARING MATTERS 97
filing standards and implied that those standards had been satisfied by the 

intervenor.] 

In order to determine the scope of an otherwise admissible contention, a Board will 

consider the contention together with its stated bases to identify the precise issue 

that the intervenor seeks to raise. Public Service Co. of New Hampshire (Seabrook 

Station, Units 1 & 2), ALAB-899, 28 NRC 93, 97 & n.11 (1988). 

When a party to a combined operating license proceeding proposes a contention 

that challenges information under review in a design certification rulemaking, the 

Board should refer the contention to the staff for consideration in the rulemaking. 

Additionally, the Board should hold the contention in abeyance, if it is otherwise 

admissible. If the applicant later decides not to reference a certified design, the 

Board must address any admissible issues in the licensing proceeding. Progress 

Energy Carolinas, Inc. (Shearon Harris Nuclear Power Plant, Units 2 & 3), 

CLI-08-15, 68 NRC 1, 4 (2008); Progress Energy Carolinas, Inc. (Shearon Harris 

Nuclear Power Plant, Units 2 & 3), LBP-08-21, 68 NRC 554, 563 (2008). 

2.10.5.2 Pleading Requirements for Contentions 

In BPI v. AEC, 502 F.2d 424 (D.C. Cir. 1974), the U.S. Court of Appeals for the 

D.C. Circuit upheld, in part, the pleading requirements of 10 C.F.R. § 2.309 

(formerly § 2.714) governing petitions to intervene. Specifically, the Court ruled that: 

 (a) the requirement that contentions be specified does not violate 

 Section 189(a) of the Act; and 

 (b) the requirement for a basis for contentions is valid. 

Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-75, 

16 NRC 986, 993 (1982), citing BPI v. Atomic Energy Commission, 502 F.2d 424, 

428-429 (D.C. Cir. 1974); Philadelphia Electric Co. (Limerick Generating Station, 

Units 1 & 2), ALAB-804, 21 NRC 587, 591 n.5 (1985). 

To intervene in an NRC proceeding, a petitioner must, in addition to establishing 

standing, submit at least one contention that meets the requirements of 

10 C.F.R. § 2.309(f)(1). The Board may dismiss a contention that fails to meet any 

requirement of 10 C.F.R. § 2.309. PPL Susquehanna, LLC (Susquehanna Steam 

Electric Station, Units 1 & 2), LBP-07-4, 65 NRC 281, 302-303 (2007); Shieldalloy

Metallurgical Corp. (Amendment Request for Decommissioning of the Newfield, 

New Jersey Facility), LBP-07-5, 65 NRC 341, 345 (2007). 

10 C.F.R. § 2.309(f)(1)(v) (formerly § 2.714(b)(2)(ii)) now specifically requires a 

petitioner to provide a concise statement of the alleged facts or expert opinion which 

support its proposed contention, together with references to those specific sources 

and documents of which the petitioner is aware, and on which the petitioner intends 

to rely to establish those facts or expert opinion. Dominion Nuclear Connecticut, 

Inc. (Millstone Nuclear Power Station, Unit 3), LBP-08-9, 67 NRC 421 (2008). 

There is no regulatory requirement that an intervenor supply all the bases known at 

the time he files a contention. What is required is the filing of bases on which the 

intervenor intends to rely. Georgia Power Co. (Vogtle Electric Generating Plant, 

Units 1 & 2), LBP-94-22, 40 NRC 37, 39 (1994). The petitioner also must provide 

PREHEARING MATTERS 98 JUNE 2011
sufficient information to establish the existence of a genuine dispute with the 

applicant on a material issue of law or fact. 10 C.F.R. § 2.309(f)(1)(v) (formerly 

§ 2.714(b)(2)(iii)). See Georgia Power Co. (Vogtle Electric Generating Plant, Units 1 

& 2), LBP-9121, 33 NRC 419, 422-24 (1991), appeal dismissed, CLI-92-3, 

35 NRC 63 (1992); Arizona Public Service Co. (Palo Verde Nuclear Generating 

Station, Units 1, 2, & 3), CLI-91-12, 34 NRC 149, 155-56 (1991); Duke Energy Corp.

(McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), 

LBP-02-4, 55 NRC 49, 64-68 (2002); Long Island Lighting Co. (Shoreham Nuclear 

Power Station, Unit 1), LBP-91-35, 34 NRC 163, 166, 169-170, 175-76 (1991); Long 

Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-91-39, 34 NRC 

273, 279 (1991); Louisiana Energy Services, L.P. (Claiborne Enrichment Center), 

LBP-91-41, 34 NRC 332, 338 (1991); Northeast Nuclear Energy Co. (Millstone 

Nuclear Power Station, Unit 2), LBP-92-28, 36 NRC 202, 214 (1992); Sacramento 

Municipal Utility District (Rancho Seco Nuclear Generating Station), CLI-93-3, 37 

NRC 135, 142 (1993); Sacramento Municipal Utility District (Rancho Seco Nuclear 

Generating Station), LBP-93-23, 38 NRC 200, 205 (1993); Gulf States Utilities Co.

(River Bend Station, Unit 1), CLI-94-10, 40 NRC 43, 51 (1994); Private Fuel 

Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-04-4, 59 NRC 

31, 49 (2004); Entergy Nuclear Vermont Yankee, L.L.C. and Entergy Nuclear 

Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-04-28, 60 NRC 

548, 555 (2004); Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power 

Station, Unit 3), LBP-08-9, 67 NRC 421 (2008). 

PPL Susquehanna LLC (Susquehanna Steam Electric Station, Units 1 & 2), 

LBP-07-10, 66 NRC 1, 23 (2007). The contention rule is strict by design and does 

not permit the petitioner to file vague, unparticularized, unsupported contentions. 

Shieldalloy Metallurgical Corp. (Amendment Request for Decommissioning of the 

Newfield, New Jersey Facility), LBP-07-5, 65 NRC 341, 352 (2007). The strict 

contention rule serves multiple purposes. First, it focuses the hearing process on 

real disputes susceptible of resolution in an adjudication. For example, a petitioner 

may not demand an adjudicatory hearing to attack generic NRC requirements or 

regulations, or to express generalized grievances about NRC policies. Second, the 

rule’s requirement of detailed pleadings puts other parties in the proceeding on 

notice of the petitioners’ specific grievances and thus gives them a good idea of the 

claims they will be either supporting or opposing. Finally, the rule helps to ensure 

that full adjudicatory hearings are triggered only by those able to proffer at least 

some minimal factual and legal foundation in support of their contentions. PPL 

Susquehanna, LLC (Susquehanna Steam Electric Station, Units 1 & 2), LBP-07-4, 

65 NRC 281, 303-304 (2007). 

Failure of a proposed contention to meet any one of the requirements in 

10 C.F.R. 2.309(f)(1)(iii), (iv), (vi) is grounds for dismissal. Dominion Nuclear 

Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-05-24, 

62 NRC 551, 567-68 (2005). 

It is well established in NRC proceedings that a reply cannot expand the scope of 

the arguments set forth in the original hearing request. Replies must focus narrowly 

on the legal or factual arguments first presented in the original petition or raised in 

answers to it. New bases for a contention cannot be introduced in a reply brief, or 

any other time after the date the original contentions are due, unless the petitioner 

meets the late-filing criteria set forth in 10 C.F.R. 2.309(c), (f)(2). While a petitioner 

JUNE 2011 PREHEARING MATTERS 99
need not introduce at the contention phase every document on which it will rely in a 

hearing, if the contention as originally plead did not cite adequate documentary 

support, a petitioner cannot remediate the deficiency by introducing in the reply 

documents that were available to it during the time frame for initially filing 

contentions. Nuclear Management Co., LLC (Palisades Nuclear Plant), CLI-06-17, 

63 NRC 727, 732 (2006); Florida Power & Light Co. (Turkey Point Nuclear 

Generating Plant, Units 3 & 4), LBP-08-18, 68 NRC 533, 541-42 (2008). A 

participant is confined to its contentions as initially filed and may not rectify 

deficiencies through a reply brief or on appeal. U.S. Dep’t of Energy (High-Level 

Waste Repository), CLI-09-14, 69 NRC 580, 588 (2009). 

The “raised Threshold” for contentions must be reasonably applied and is not to be 

mechanically construed. Rules of practice are not to be applied in an “overly 

formalistic” manner. Sacramento Municipal Utility District (Rancho Seco Nuclear 

Generating Station), LBP-93-23, 38 NRC 200, 206 (1993). 

“[W]here federal courts permit considerably less-detailed ‘notice pleadings’, the 

Commission requires far more to plead a contention.” Private Fuel Storage, L.L.C.

(Independent Spent Fuel Storage Installation), LBP-01-39, 54 NRC 497, 505 (2001); 

Pa’ina Hawaii, LLC, LBP-06-4, 63 NRC 99, 108 (2006). Agency procedural 

requirements simply raising the threshold for admitting some contentions as an 

incidental effect of regulations designed to prevent unnecessary delay in the hearing 

process are reasonable. Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), 

CLI-83-19, 17 NRC 1041, 1047 (1983). The contention pleading requirements of 

10 C.F.R. § 2.309(f) are meant to “focus litigation on concrete issues and result in a 

clearer and more focused record for decision.” Pa’ina Hawaii, LLC, LBP-06-4, 

63 NRC 99, 108 (2006) (quoting 69 Fed. Reg. 2,182, 2,202 (Jan. 14, 2004)). 

Accordingly, contention admissibility is “strict by design.” Pa’ina, LBP-06-4, 

63 NRC at 108 (quoting Dominion Nuclear Connecticut, Inc. (Millstone Nuclear 

Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 358 (2001), petition for 

reconsid. denied, CLI-02-1, 55 NRC 1 (2002)). 

 

All that is required for a contention to be acceptable for litigation is that it be specific 

and have a basis. Whether or not the contention is true is left to litigation on the 

merits in the licensing proceeding. Washington Public Power Supply System

(WPPSS Nuclear Project No. 2), ALAB-722, 17 NRC 546, 551 n.5 (1983), citing

Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), 

ALAB-590, 11 NRC 542 (1980); Philadelphia Electric Co. (Limerick Generating 

Station, Units 1 & 2), ALAB-806, 21 NRC 1183, 1193 n.39 (1985); Philadelphia 

Electric Co. (Limerick Generating Station, Units 1 & 2), ALAB-819, 22 NRC 681, 694 

(1985). See Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear 

Power Station), ALAB-869, 26 NRC 13, 23-24 (1987), reconsid. denied on other 

grounds, ALAB-876, 26 NRC 277 (1987); Public Service Co. of New Hampshire

(Seabrook Station, Units 1 & 2), LBP-89-28, 30 NRC 271, 282 (1989), aff’d on other 

grounds, ALAB-940, 32 NRC 225 (1990); Arizona Public Service Co. (Palo Verde 

Nuclear Generating Station, Units 1, 2, & 3), LBP-91-19, 33 NRC 397, 411 (1991), 

appeal denied, CLI-91-12, 34 NRC 149 (1991). 

When dealing with contentions related to a confirmatory enforcement order, the 

scope of the hearing will usually be limited to whether the order should be 

sustained. Nuclear Fuel Services, Inc. (Special Nuclear Facility), LBP-07-16, 

PREHEARING MATTERS 100 JUNE 2011
66 NRC 277, 294 (2007). Therefore, contentions related to the Freedom of 

Information Act (FOIA), or potentially “better” orders are not admissible contentions. 

Id.

The petitioner has the burden of bringing contentions meeting the pleading 

requirements. Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel 

Fabrication Facility), LBP-01-35, 54 NRC 403, 422 (2001). The Licensing Board 

may not supply missing information or draw inferences on behalf of the petitioner. 

Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication 

Facility), LBP-01-35, 54 NRC 403, 422 (2001). 

The factual support necessary to show that a genuine dispute exists need not be in 

formal evidentiary form, nor be as strong as that necessary to withstand a summary 

disposition motion. What is required is “a minimal showing that material facts are in 

dispute, thereby demonstrating that an ‘inquiry in depth’ is appropriate.” Gulf States 

Utilities Co. (River Bend Station, Unit 1), CLI-94-10, 40 NRC 43, 51 (1994) (citing

Final Rule, Rules of Practice for Domestic Licensing Proceedings – Procedural 

Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,171 (Aug. 11, 1989), 

quoting Connecticut Bankers Association v. Board of Governors, 627 F.2d 245 

(D.C. Cir. 1980). 

The basis and specificity requirements are particularly important for contentions 

involving broad quality assurance and quality control issues. Commonwealth 

Edison Co. (Braidwood Nuclear Power Station, Units 1 & 2), LBP-85-11, 

21 NRC 609, 634 (1985), rev’d and remanded on other grounds, CLI-86-8, 

23 NRC 241 (1986); Commonwealth Edison Co. (Braidwood Nuclear Power Station, 

Units 1 & 2), LBP-85-20, 21 NRC 1732, 1740-41 (1985), rev’d and remanded on 

other grounds, CLI-86-8, 23 NRC 241 (1986), citing Philadelphia Electric Co.

(Limerick Generating Station, Units 1 & 2), LBP-83-39, 18 NRC 67, 89 (1983). 

Technical perfection is not an essential element of contention pleading. Private Fuel 

Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-01-3, 

53 NRC 84, 99 (2001); Crowe Butte Resources, Inc. (North Trend Expansion 

Project), LBP-08-6, 67 NRC 241 (2008). 

It is not essential that pleadings of contentions be technically perfect. The Licensing 

Board would be reluctant to deny intervention on the basis of skill of pleading where 

it appears that the petitioner has identified interests which may be affected by a 

proceeding. Houston Lighting and Power Co. (South Texas Project, Units 1 & 2), 

ALAB-549, 9 NRC 644, 650 (1979). It is neither congressional nor Commission 

policy to exclude parties because the niceties of pleading were imperfectly 

observed. Sounder practice is to decide issues on their merits, not to avoid them on 

technicalities. Consumers Power Co. (Palisades Nuclear Plant), LBP-79-20, 

10 NRC 108, 116-17 (1979); Vermont Yankee Nuclear Power Corp. (Vermont 

Yankee Nuclear Power Station), LBP-87-17, 25 NRC 838, 860 (1987), aff’d in part 

on other grounds, ALAB-869, 26 NRC 13 (1987), reconsid. denied on other 

grounds, ALAB-876, 26 NRC 277 (1987). However, a party is bound by the literal 

terms of its own contention. Philadelphia Electric Co. (Limerick Generating Station, 

Units 1 & 2), ALAB-819, 22 NRC 681, 709 (1985); Philadelphia Electric Co.

(Limerick Generating Station, Units 1 & 2), ALAB-836, 23 NRC 479, 505 (1986); 

Carolina Power and Light Co. and North Carolina Eastern Municipal Power Agency

JUNE 2011 PREHEARING MATTERS 101
(Shearon Harris Nuclear Power Plant), ALAB-843, 24 NRC 200, 208 (1986); 

Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), ALAB-845, 

24 NRC 220, 242 (1986); Carolina Power and Light Co. and North Carolina Eastern 

Municipal Power Agency (Shearon Harris Nuclear Power Plant), ALAB-852, 

24 NRC 532, 545 (1986); Carolina Power and Light Co. and North Carolina Eastern 

Municipal Power Agency (Shearon Harris Nuclear Power Plant), ALAB-856, 

24 NRC 802, 816 (1986); Vermont Yankee Nuclear Power Corp. (Vermont Yankee 

Nuclear Power Station), ALAB-876, 26 NRC 277, 284 (1987); Public Service Co. of 

New Hampshire (Seabrook Station, Units 1 & 2), LBP-88-6, 27 NRC 245, 254 

(1988), aff’d on other grounds, ALAB-892, 27 NRC 485 (1988); Public Service Co. 

of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-947, 33 NRC 299, 

371-372 & n.310 (1991); North Atlantic Energy Service Corp. (Seabrook Station, 

Unit 1), LBP-98-23, 48 NRC 157, 166 (1998). 

Pro se intervenors are not held in NRC proceedings to a high degree of technical 

compliance with legal requirements and, accordingly, as long as parties are 

sufficiently put on notice as to what has to be defended against or opposed, 

specificity requirements will generally be considered satisfied. However, that is not 

to suggest that a sound basis for each contention is not required to assure that the 

proposed issues are proper for adjudication. Consolidated Edison Co. of N.Y.

(Indian Point Nuclear Generating Unit 2) and Power Authority of the State of N.Y. 

(Indian Point Nuclear Generating Unit 3), LBP-83-5, 17 NRC 134, 136 (1983). 

Originality of framing contentions is not a pleading requirement. Commonwealth 

Edison Co. (Byron Nuclear Power Station, Units 1 & 2), LBP-80-30, 12 NRC 683, 

689 (1980). 

The contention admissibility requirements demand a level of discipline and 

preparedness on the part of petitioners, who must examine the publicly available 

material and set forth their claims and the support for their claims at the outset. The 

need for parties to adhere to the Commission’s pleading standards and for the 

Board to enforce those standards are paramount. Louisiana Energy Services, L.P.

(National Enrichment Facility), CLI-04-25, 60 NRC 223, 224-25 (2004), recons. den.

Louisiana Energy Services, L.P., CLI-04-35, 60 NRC 619 (2004). 

An admissible contention must interject into the proceeding matters that are material 

to the findings that the agency must make on the application. Therefore, when a 

petitioner alleged that an application for an extended power uprate (EPU) omitted 

information about the condition of the river water intake pipes, this was inadmissible 

because this issue falls within the exclusive scope of the state agency’s jurisdiction 

and is not within the scope of an EPU hearing. PPL Susquehanna LLC

(Susquehanna Steam Electric Station, Units 1 & 2), CLI-07-25, 66 NRC 101, 107-08 

(2007). 

Although recent amendments to the NRC procedural rules restrict contention 

admissibility further, those rules contain essentially the same substantive standards 

for contentions. PPL Susquehanna, LLC (Susquehanna Steam Electric Station, 

Units 1 & 2), LBP-07-4, 65 NRC 281, 303 (2007). 

PREHEARING MATTERS 102 JUNE 2011
2.10.5.2.1 Bases for Contentions 

The purposes of the basis-for-contention requirement are: (1) to help assure that 

the hearing process is not improperly invoked, for example, to attack statutory 

requirements or regulations; (2) to help assure that other parties are sufficiently 

put on notice so that they will know at least generally what they will have to 

defend against or oppose; (3) to assure that the proposed issues are proper for 

adjudication in the particular proceeding – i.e., generalized views of what 

applicable policies ought to be are not proper for adjudication; (4) to assure that 

the contentions apply to the facility at bar; and (5) to assure that there has been 

sufficient foundation assigned for the contentions to warrant further explanation. 

General Public Utilities Nuclear Corp. (Three Mile Island Nuclear Station, Unit 1), 

LBP-86-10, 23 NRC 283, 285 (1986), citing Philadelphia Electric Co. (Peach 

Bottom Atomic Power Station, Units 2 & 3), ALAB-216, 8 AEC 13, 20-21 (1974). 

See Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 1), 

ALAB-868, 25 NRC 912, 931-33 (1987); Sierra Club v. NRC, 862 F.2d 222, 

227-28 (9th Cir. 1988). 

Relevance is not the only criterion for admissibility of a contention. 

10 C.F.R. § 2.309 requires that the bases for each contention must be set forth 

with reasonable specificity. Wisconsin Electric Power Co. (Point Beach Nuclear 

Plant, Unit 1), LBP-82-108, 16 NRC 1811, 1821 (1982). See Cleveland Electric 

Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), LBP-81-24, 

14 NRC 175, 181-84 (1981); Commonwealth Edison Co. (Braidwood Nuclear 

Power Station, Units 1 & 2), LBP-85-11, 21 NRC 609, 617, 627 (1985), rev’d and 

remanded on other grounds, CLI-86-8, 23 NRC 241 (1986); Philadelphia Electric 

Co. (Limerick Generating Station, Units 1 & 2), CLI-85-15, 22 NRC 184, 187 

(1985); Houston Lighting and Power Co. (South Texas Project, Units 1 & 2), 

LBP-86-8, 23 NRC 182, 188 (1986); General Public Utilities Nuclear Corp. (Three 

Mile Island Nuclear Station, Unit 1), LBP-86-10, 23 NRC 283, 285 (1986); 

Carolina Power and Light Co. and North Carolina Eastern Municipal Power 

Agency (Shearon Harris Nuclear Power Plant), ALAB-837, 23 NRC 525, 541 

(1986); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, 

Units 1 & 2), LBP-86-21, 23 NRC 849, 851 (1986); Philadelphia Electric Co.

(Limerick Generating Station, Units 1 & 2), ALAB-845, 24 NRC 220, 230 (1986); 

Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), 

LBP-87-17, 25 NRC 838, 842, 847 (1987), aff’d in part on other grounds, 

ALAB-869, 26 NRC 13 (1987), reconsid. denied on other grounds, ALAB-876, 

26 NRC 277 (1987); Texas Utilities Electric Co. (Comanche Peak Steam Electric 

Station, Unit 1), ALAB-868, 25 NRC 912, 930 (1987); Pacific Gas and Electric 

Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), LBP-87-24, 26 NRC 159, 

162, 165 (1987), aff’d, ALAB-880, 26 NRC 449, 456 (1987), remanded, Sierra 

Club v. NRC, 862 F.2d 222 (9th Cir. 1988); Pacific Gas and Electric Co. (Diablo 

Canyon Nuclear Power Plant, Units 1 & 2), ALAB-877, 26 NRC 287, 292-94 

(1987); Florida Power and Light Co. (St. Lucie Nuclear Power Plant, Unit 1), 

LBP-88-10A, 27 NRC 452, 455, 458 (1988), aff’d, ALAB-893, 27 NRC 627 

(1988); Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power 

Station), ALAB-919, 30 NRC 29, 45-47 (1989) (documents cited by intervenors 

did not provide adequate bases for proposed contention), vacated in part and 

remanded, CLI-90-4, 31 NRC 333 (1990), request for clarification, ALAB-938, 

32 NRC 154 (1990), clarified, CLI-90-7, 32 NRC 129 (1990). A long and detailed 

JUNE 2011 PREHEARING MATTERS 103
list of omissions and problems does not, without more, provide a basis for 

believing that there is a safety issue. Discovered problems are not in themselves 

grounds for admitting a contention. Texas Utilities Generating Co. (Comanche 

Peak Steam Electric Station, Units 1 & 2), LBP-83-75A, 18 NRC 1260, 1263 n.6 

(1983); Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), 

ALAB-819, 22 NRC 681, 725 (1985). See Philadelphia Electric Co. (Limerick 

Generating Station, Units 1 & 2), ALAB-845, 24 NRC 220, 240 (1986); Southern 

Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), LBP-08-2, 

67 NRC 54, 73, 78 (2008). 

A contention that simply alleges that some general, nonspecific matter ought to 

be considered does not provide the basis for an admissible contention. 

Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), 

LBP-93-23, 38 NRC 200, 246 (1993); PPL Susquehanna LLC (Susquehanna 

Steam Electric Station, Units 1 & 2), LBP-07-10, 66 NRC 1, 23 (2007); Southern

Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), LBP-07-3, 

65 NRC 237, 253 (2007). Merely posing a question is not sufficient support to 

admit a contention. PPL Susquehanna, LLC (Susquehanna Steam Electric 

Station, Units 1 & 2), LBP-07-4, 65 NRC 281, 324 (2007). 

Although an “obvious potential for offsite consequences” may be sufficient to 

show standing, it is not in itself sufficient to support an admissible contention. 

Fansteel Inc. (Muskogee, Oklahoma Facility), LBP-03-13, 58 NRC 96 (2003). 

A Licensing Board has defined the failure to demonstrate the existence of a 

genuine dispute on a material issue of fact as a failure to provide any factual 

evidence or supporting documents that produce some doubt about the adequacy 

of a specified portion of applicant’s documents or that provide supporting reasons 

that tend to show that there is some specified omission from applicant’s 

documents. The intervention petitioner in this case did not advance an 

independent basis for any of its contentions, and instead relied on alleged 

omissions and errors in the applicant’s documents and analyses. Florida Power 

and Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), LBP-90-16, 

31 NRC 509, 515, 521 & n.12 (1990), citing 10 C.F.R. §§ 2.309(f)(1)(v) and (vi) 

(formerly §§ 2.714(b) (2)(ii) and (iii)). 

The bases for a contention need not originate with the petitioner. Thus a 

petitioner seeking to challenge the adequacy of an application may base its 

contention on information contained in an NRC Staff letter to an applicant which 

requests additional information based on a regulatory guide citation. However, in 

order for the contention to be admissible, the petitioner must provide an 

adequate explanation of how alleged deficiencies support its contention and 

provide additional information in support. Louisiana Energy Services L.P.

(Claiborne Enrichment Center), LBP-91-41, 34 NRC 332, 338-339 (1991). See

Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), 

LBP-92-23, 36 NRC 120, 136 (1992), appeal granted in part and remanded, 

CLI-93-3, 37 NRC 135 (1993). 

A simple reference to a large number of documents does not provide a sufficient 

basis for a contention. An intervenor must clearly identify and summarize the 

incidents being relied upon, and identify and append specific portions of the 

PREHEARING MATTERS 104 JUNE 2011
documents. Commonwealth Edison Co. (Braidwood Nuclear Power Station, 

Units 1 & 2), LBP-85-20, 21 NRC 1732, 1741 (1985), rev’d and remanded on 

other grounds, CLI-86-8, 23 NRC 241 (1986), citing Tennessee Valley Authority

(Browns Ferry Nuclear Plant, Units 1 & 2), LBP-76-10, 3 NRC 200, 216 (1976); 

Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), CLI-89-3, 

29 NRC 234, 240-41 (1989); Progress Energy Carolinas, Inc. (Shearon Harris 

Nuclear Power Plant, Units 2 & 3), LBP-08-21, 68 NRC 554, 570-71 (2008). 

In pleading for the admission of a contention, an intervenor is not required to 

prove the contention, but must allege at least some credible foundation for the 

contention. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, 

Units 1 & 2), ALAB-880, 26 NRC 449, 457 (1987), remanded, Sierra Club v. 

NRC, 862 F.2d 222 (9th Cir. 1988); Connecticut Yankee Atomic Power Co.

(Haddam Neck Plant), LBP-01-21, 54 NRC 33, 47-48 (2001). Under the 

Commission’s contention rule, intervenors are not asked to prove their case, or to 

provide an exhaustive list of possible bases, but simply to provide sufficient 

alleged factual or legal bases to support the contention, and to do so at the 

outset. However, the Commission’s contention rules do not allow using reply 

briefs to provide, for the first time, the necessary threshold support for 

contentions. Louisiana Energy Services, L.P. (National Enrichment Facility), 

CLI-04-35, 60 NRC 619, 623 (2004). 

Contentions must be based on a genuine material dispute, not the possibility that 

petitioners, if they perform their own analyses, may ultimately disagree with the 

application. USEC, Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 

480 (2006). 

A basis for a contention is set forth with reasonable specificity if the applicants 

are sufficiently put on notice so that they will know, at least generally, what they 

will have to defend against or oppose, and if there has been sufficient foundation 

assigned to warrant further exploration of the proposed contention. Kansas Gas 

& Electric Co. (Wolf Creek Generating Station, Unit 1), LBP-84-1, 19 NRC 29, 34 

(1984), citing Peach Bottom, supra, 8 AEC at 20-21; Commonwealth Edison Co.

(Braidwood Nuclear Power Station, Units 1 & 2), LBP-85-20, 21 NRC 1732, 1742 

(1985), rev’d and remanded on other grounds, CLI-86-8, 23 NRC 241 (1986). 

See Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), 

ALAB-942, 32 NRC 395, 427-28 (1990); see also Southern Nuclear Operating 

Co. (Early Site Permit for Vogtle ESP Site), LBP-08-2, 67 NRC 54, 73, 78 (2008) 

(holding that contention was not put forth with reasonable specificity so as to put 

the other parties on notice as to what issues they will have to defend against or 

oppose). 

In some cases, the Commission or Board has admitted contentions based on 

claims of poor licensee character or integrity. Dominion Nuclear Connecticut, 

Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 365 

(2001). To form the basis for an admissible contention, allegations of 

management improprieties or lack of “integrity” must be of more than historical 

interest: they must relate directly to the proposed licensing action. Dominion 

Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3), 

CLI-01-24, 54 NRC 349, 365 (2001); Georgia Institute of Technology (Georgia 

Tech Research Reactor), CLI-95-12, 42 NRC 111, 120 (1995). Management 

JUNE 2011 PREHEARING MATTERS 105
issues must be directly germane to the challenged licensing action to serve as 

the basis for an admissible contention. In determining whether to grant a license, 

it is proper for a Licensing Board to evaluate whether the applicant, as presently 

organized and staffed, can provide reasonable assurance of candor, willingness, 

and ability to follow NRC regulations. A finding that an applicant’s current 

management is unfit would be cause to deny a license. However, no genuine 

dispute with regard to a material issue of fact or law is raised where an intervenor 

relies on the existence of past violations, but then fails to present any information 

indicating that any person or procedure associated with those past violations will 

be employed at, or involved with, the proposed facility. USEC, Inc. (American 

Centrifuge Plant), LBP-05-28, 62 NRC 585, 618-19 (2005). 

The basis with reasonable specificity standard requires that an intervenor include 

in a safety contention a statement of the reason for his contention. This 

statement must either allege with particularity that an applicant is not complying 

with a specified regulation, or allege with particularity the existence and detail of 

a substantial safety issue on which the regulations are silent. In the absence of a 

“regulatory gap,” the failure to allege a violation of the regulations or an attempt 

to advocate stricter requirements than those imposed by the regulations will 

result in a rejection of the contention, the latter as an impermissible collateral 

attack on the Commission's rules. Public Service Co. of New Hampshire

(Seabrook Station, Units 1 & 2), LBP-82-106, 16 NRC 1649, 1656 (1982), citing

10 C.F.R. § 2.335 (formerly § 2.758); PPL Susquehanna LLC (Susquehanna 

Steam Electric Station, Units 1 & 2), LBP-07-10, 66 NRC 1, 24 (2007). 

“The purpose and scope of a licensing proceeding is to allow interested persons 

the right to challenge the sufficiency of the application. The NRC has not and will 

not, litigate claims about the adequacy of the Staff’s safety review in licensing 

adjudications.” AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating 

Station) et. al., CLI-08-23, 68 NRC 461, 476 (2008); U.S. Army (Jefferson 

Proving Ground Site), LBP-06-27, 64 NRC 438, 456 (2006). 

Serious violations or other incidents may form the basis for a contention 

challenging the adequacy of management of a facility. Georgia Institute of 

Technology (Georgia Tech Research Reactor, Atlanta, Ga.), LBP-95-6, 

41 NRC 281, 297 (1995); PPL Susquehanna LLC (Susquehanna Steam Electric 

Station, Units 1 & 2), LBP-07-10, 66 NRC 1, 24 (2007). 

A Licensing Board will deny, without prejudice, a basis for a contention which 

involves an issue that is already under consideration by the Commission Staff. It 

would be premature for a Licensing Board to litigate an issue when a 

Commission determination might make the issue moot. Louisiana Energy 

Services, L.P. (Claiborne Enrichment Center), LBP-91-41, 34 NRC 332, 341 

(1991). 

It is a well-established principle relative to safety-related matters that the 

adequacy of the application, not the adequacy of the Staff’s review or evaluation, 

e.g., its SER, is the focus for a proper contention. Private Fuel Storage, L.L.C.

(Independent Spent Fuel Storage Installation), LBP-01-3, 53 NRC 84, 97 (2001). 

The adequacy of the manner in which the Staff conducts its review of a 

technical/safety matter is outside the scope of Commission proceedings. 

PREHEARING MATTERS 106 JUNE 2011
AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station) et. al., 

CLI-08-23, 68 NRC 461, 476-77, 481-82 (2008); Pacific Gas & Electric Co.

(Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), 

LBP-03-11, 58 NRC 47, 66 (2003). 

A Licensing Board will also deny a basis for a contention which involves an 

inchoate plan of the licensee. The contended issue must be a part of the current 

licensing basis that is docketed and in effect. Duke Energy Corp. (McGuire 

Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-02-14, 

55 NRC 278, 293 (2002), citing 10 C.F.R. § 54.29(a). Contentions pertaining to 

issues dealing with the current operating license, including the updated final 

safety analysis report (FSAR), are not within the scope of license review. 

Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), 

LBP-08-13, 68 NRC 43, 73 (2008). The proper vehicle to challenge the 

adequacy of the updated FSAR would be a Section 2.206 petition, not a 

challenge of the license renewal. Entergy Nuclear Operations, Inc. (Indian Point 

Nuclear Generating Units 2 & 3), LBP-08-13, 68 NRC 43, 73 (2008). In Duke 

Energy Corp., the Commission denied the admission of a mixed oxide (MOX) 

contention when the licensee had a contractual arrangement to purchase MOX 

fuel, but the proposed MOX fuel production facility remained unbuilt and was in 

the early stages of contested NRC licensing proceeding. Duke Energy Corp.

(McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), 

CLI-02-14, 55 NRC 278, 292 (2002). 

Contentions that are based on projected changes to a license, not currently 

before the NRC in any proceeding or application, are not sufficient to support 

admission of a contention. Duke Energy Corp. (McGuire Nuclear Station, Units 1 

& 2; Catawba Nuclear Station, Units 1 & 2), CLI-02-14, 55 NRC 278, 294 (2002). 

Verification by the NRC Staff that a licensee complies with preapproved design 

or testing criteria is a highly technical inquiry not particularly suitable for hearing. 

Hydro Res., Inc. (P.O. Box 777, Crownpoint, New Mexico 87313), CLI-06-1, 

63 NRC 1, 5 (2006) (citing Private Fuel Storage, LLC (Independent Storage 

Installation), CLI-03-8, 58 NRC 11, 20 & n.25 (2003)). 

The fact that the Office of Investigation and the Office of Inspector and Auditor 

are investigating otherwise unidentified allegations is insufficient basis for 

admitting a contention. Pacific Gas and Electric Co. (Diablo Canyon Nuclear 

Power Plant, Units 1 & 2), LBP-86-21, 23 NRC 849, 858 (1986). 

The bare pendency of an investigation does not reflect that there is a substantive 

problem, or that there has been any violation, or that there even exists an 

outstanding significant safety issue, and thus cannot serve as a valid basis for a 

contention. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Plant, Units 1 

& 2), LBP-93-9, 37 NRC 433, 446 (1993). 

Pending future developments that would overrule controlling Commission 

precedent, Boards have held a contention (or portion thereof) relying on an 

argument that a controlling Commission decision was wrongly decided to be 

inadmissible. See, e.g., Pa’ina Hawaii, LLC, LBP-06-4, 63 NRC 99, 113-14 

(2006) (ruling on NEPA terrorism contention based on Commission precedent 

JUNE 2011 PREHEARING MATTERS 107
despite the pendency of a Circuit Court of Appeals review of an analogous 

issue). 

The mere fact that NRC Staff has issued requests for additional information 

(RAIs) during its license application review does not indicate that the application 

is deficient, as RAIs are a common and expected feature of the review process. 

Safety Light Corp., LBP-04-25, 60 NRC 516, 525-26 (2004) (citing Duke Energy 

Corp. (Oconee Nuclear Station, Units 1, 2, & 3), CLI-99-11, 49 NRC 328, 336 

(1999)). See also Nuclear Management Co., LLC (Monticello Nuclear 

Generating Plant), CLI-06-6, 63 NRC 161, 164 (2006); Dominion Nuclear 

Connecticut, Inc. (Millstone Nuclear Power Station, Unit 3), CLI-08-17, 68 NRC 

231, 242 (2008). 

A contention that seeks to litigate a matter that is the subject of an agency 

rulemaking is not admissible. Private Fuel Storage, L.L.C. (Independent Spent 

Fuel Storage Installation), LBP-00-01, 51 NRC 1, 5 (2000); see Private Fuel 

Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-98-7, 

47 NRC 142, 179, reconsid. granted in part and denied in part on other grounds, 

LBP-98-10, 47 NRC 288, aff’d on other grounds, CLI-98-13, 48 NRC 26 (1998); 

Tennessee Valley Authority (Bellefonte Nuclear Power Plant, Units 3 & 4), LBP08-16, 68 NRC 361, 386-90 (2008). A contention attacking a Commission rule or 

regulation is inadmissible, and that inadmissibility bar applies to contentions 

proffering, for example, additional or stricter requirements than those that are 

imposed by the regulation. Duke Cogema Stone & Webster (Savannah River 

Mixed Oxide Fuel Fabrication Facility), LBP-01-35, 54 NRC 403, 422 (2001); see 

also Duke Energy Carolinas, LLC (William States Lee III Nuclear Station, Units 1 

& 2), LBP-08-17, 68 NRC 431, 442-443 (2008) (contention that challenges an 

applicant’s use of a procedure allowed by NRC regulations is inadmissible); 

Tennessee Valley Authority (Bellefonte Nuclear Power Plant, Units 3 & 4), LBP08-16, 68 NRC 361, 386-90 (2008). 

To read the agency’s hearing notice, which found a categorical exclusion 

applicable to an application, as thus preventing contentions challenging the use 

of such categorical exclusions (as authorized by 10 C.F.R. § 51.22) would be 

tantamount to ruling that the agency need not comply with its own regulations. 

Pa’ina Hawaii, LLC, LBP-06-4, 63 NRC 99, 109 n.38 (2006) (citing, e.g., Fort 

Stewart Schools v. Fed. Labor Relations Auth., 495 U.S. 641, 654 (1990)). 

A Board admitted a contention based on the argument that NEPA analysis 

requires an explanation of the applicability of a categorical exclusion where a 

petitioner has alleged special circumstances necessitating an environmental 

review; the Staff and applicant had not negated the contention because they did 

not explain the applicability of that categorical exclusion in the specified 

circumstances, or provide a basis to conclude that the alleged circumstances 

were actually considered as part of the adoption of the categorical exclusion. 

Pa’ina Hawaii, LLC, LBP-06-4, 63 NRC 99, 108-112 & 108 n.36 (2006) (citing

Alaska Center for the Environment v. U.S. Forest Service, 189 F.3d 851, 859 

(9th Cir. 1999); Jones v. Gordon, 792 F.2d 821, 828 (9th Cir. 1986); 

Steamboaters v. Fed. Energy Reg. Comm’n, 759 F.2d 1382 (9th Cir. 1985); 

Wilderness Watch & Public Employees for Envtl. Responsibility v. Mainella, 

375 F.3d 1085, 1096 (11th Cir. 2004)). 

PREHEARING MATTERS 108 JUNE 2011
The siting of an irradiator is not barred as a matter of law from irradiator 

proceedings. However, the Commission has not imposed any rules limiting or 

directing siting requirements for either panoramic or underwater irradiators. In 

order to properly challenge an irradiator siting, the intervenor must set out a 

plausible claim that proposed facility would not be adequately protected from a 

specific event or phenomenon. Pa’ina Hawaii, LLC, CLI-08-03, 67 NRC 151, 

167-68 (2008). 

Once a contention has been admitted, intervenor may litigate a new basis for the 

admitted contention (falling within the scope of the contention) without meeting 

the five-pronged test for a late-filed contention. The test for admitting the new 

basis is whether it is timely to consider the new basis, in light of its seriousness 

and of the timeliness with which it has been raised. The more serious the safety 

implications of the proposed new basis, the less important delay in presenting the 

basis. Georgia Power Co. (Vogtle Electric Generating Plant, Units 1 & 2), 

LBP-94-22, 40 NRC 37, 39 (1994). 

The test to be applied to determine whether to admit for litigation a new basis for 

an admitted contention is “whether the motion [to admit the contention] was 

timely and whether it presents important information regarding a significant 

issue.” Consumers Power Co. (Midland Plant, Units 1 & 2), LBP-84-20, 

19 NRC 1285, 1296 (1984); Georgia Power Co. (Vogtle Electric Generating 

Plant, Units 1 & 2), LBP-94-27, 40 NRC 103, 105 (1994). 

General fears or criticisms of past practices of the nuclear industry or the 

applicant are not appropriate bases for contentions unless there is reason to 

suspect the specific procedures or safety-related tests used in a proposed 

demonstration program which requires a license amendment. Wisconsin Electric 

Power Co. (Point Beach Nuclear Plant, Units 1 & 2), LBP-81-55, 14 NRC 1017, 

1026 (1981); see also Duke Energy Carolinas, LLC (William States Lee III 

Nuclear Station, Units 1 & 2), LBP-08-17, 68 NRC 431, 451-52 (2008) (petitioner 

cannot request a hearing to express general grievances about NRC polices or 

attack NRC’s competence). 

Where the laws of physics deprive a proposed contention of any credible or 

arguable basis, the contention will not be admitted. Philadelphia Electric Co.

(Limerick Generating Station, Units 1 & 2), LBP-84-16, 19 NRC 857, 870 (1984), 

aff’d, ALAB-765, 19 NRC 645, 654 n.13 (1984); compare Houston Lighting and 

Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 

NRC 542 (1980). 

Whether or not a basis for contentions has been established must be decided by 

considering the contentions in the context of the entire record of the case up to 

the time the contentions are filed. Thus, when an application for a license 

amendment is itself incomplete, the standard for the admission of contentions is 

lowered, because it is easier for petitioners to have reasons for believing that the 

application has not demonstrated the safety of the proposed procedures for 

which an amendment is sought. Wisconsin Electric Power Co. (Point Beach 

Nuclear Plant, Units 1 & 2), LBP-81-45, 14 NRC 853 (1981). 

JUNE 2011 PREHEARING MATTERS 109
A contention may be found valid where it “substitut[es] an active event for what 

was previously only a hypothetical scenario,” even where the new contention 

shares common elements with contentions that were already rejected. Dominion 

Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 3), LBP-02-5, 

55 NRC 131, 138-139 (2002). 

Complexity of additional administrative controls has previously been found to 

constitute an admissible contention in the face of numerous alleged cited 

incidents and violations, albeit in a construction-period recapture proceeding 

where the adequacy of a quality assurance/quality control program was in issue. 

Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), 

LBP-93-1, 37 NRC 5, 14-21 (1993). Northeast Nuclear Energy Co. (Millstone 

Nuclear Power Station, Unit 3), LBP-00-2, 51 NRC 25, 34 (2000). 

Matters resolved in an ESP proceeding are also considered resolved in a 

subsequent COL proceeding when the COL application references the ESP, 

subject to the exceptions listed in 10 C.F.R. § 52.39(a)(2). Therefore, in a COL 

proceeding, the Board must first look to see if the matter was resolved at the 

ESP phase, then it looks at the exceptions in the C.F.R. Virginia Electric and 

Power Co. d/b/a Dominion Virginia Power and Old Dominion Electric Cooperative

(North Anna Power Station, Unit 3), LBP-08-15, 68 NRC 294, 304-05 (2008). 

2.10.5.2.2 Specificity of Contentions 

Reasonable specificity requires that a contention include a reasonably specific 

articulation of its rationale. If an applicant believes that it can readily disprove a 

contention admissible on its face, the proper course is to move for summary 

disposition following its admission, not to assert a lack of specific basis at the 

pleading stage. Carolina Power & Light Co. and North Carolina Eastern 

Municipal Power Agency (Shearon Harris Nuclear Power Plant, Units 1 & 2), 

LBP-82-119A, 16 NRC 2069, 2070-2071 (1982). 

Particularly in the context of dealing with pro se petitioners, a finding regarding a 

contention’s specificity should include consideration of the contention’s bases. 

See Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), 

ALAB-899, 28 NRC 93, 97 (1988) (both contention and stated bases should be 

considered when question arises regarding admissibility of contention). General 

Public Utilities Nuclear Corp. (Oyster Creek Nuclear Generating Station), 

LBP-96-23, 44 NRC 143, 162 (1996). 

The Commission’s pleading requirements differ from pleading requirements in 

Article III courts because “notice pleadings” are not permitted. North Atlantic 

Energy Service Corp. (Seabrook Station, Unit 1), CLI-99-6, 49 NRC 201, 219 

(1999). Rather, the Commission insists on detailed descriptions of the 

petitioner’s position on issues going to both standing and the merits. Shieldalloy 

Metallurgical Corp., CLI-99-12, 49 NRC 347, 353 (1999); GPU Nuclear, Inc. 

(Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 203 (2000). 

To ensure that parties and the Licensing Board are on notice of the issues to be 

litigated, contentions must be pled with particularity. Entergy Nuclear Generation 

Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), 

CLI-10-15, 71 NRC __ (June 17, 2010) (slip op. at 4) (quoting Southern Nuclear 

PREHEARING MATTERS 110 JUNE 2011
Operating Co. (Early Site Permit for Vogtle ESP Site), CLI-10-5, 70 NRC __ 

(Jan. 7, 2010) (slip op. at 14). Generalized assertions, “without specific ties to 

NRC regulatory requirements, or to safety in general do not provide adequate 

support demonstrating the existence of a genuine dispute of fact or law...” U.S. 

Dep’t of Energy (High-Level Waste Repository), CLI 09-14, 69 NRC 580, 588 

(2009).

Contentions must give notice of facts which petitioners desire to litigate and must 

be specific enough to satisfy the requirements of 10 C.F.R. § 2.309 (formerly 

§ 2.714). Commonwealth Edison Co. (Dresden Nuclear Power Station, Unit 1), 

LBP-82-52, 16 NRC 183, 188-190, 193 (1982); see generally, CLI-81-25, 14 

NRC 616 (1981) (guidelines for Board). The petitioner is not required to provide 

an exhaustive discussion in its proffered contention, so long as it meets the 

Commission’s admissibility requirements. Pa’ina Hawaii, LLC, LBP-06-4, 

63 NRC 99, 108 (2006). 

The Commission’s Rules of Practice do not require that a contention be in the 

form of a detailed brief; however, a contention, alleging an entire plan to be 

inadequate in that it fails to consider certain matters, should be required to 

specify in some way each portion of the plan alleged to be inadequate. Long 

Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-75, 

16 NRC 986, 993 (1982). 

The provisions of 10 C.F.R. §§ 2.309(f)(1)(ii), (v), and (vi) (formerly 

§§ 2.714(b)(2)(i), (ii), and (iii)) were specifically added by the Commission “to 

raise the threshold bar for an admissible contention,” and prohibit “notice 

pleading, with the details to be filled in later” and “vague, unparticularized 

contentions.” Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, & 3), CLI99-11, 49 NRC 328, 334, 338 (1999); Northeast Nuclear Energy Co. (Millstone 

Nuclear Power Stations, Units 2 & 3), LBP-01-10, 53 NRC 273 (2001). 

Under 10 C.F.R. § 2.309(f)(1)(vi) (formerly § 2.714(b)(2)(iii)), if an application 

contains disputed information or omits required information, the petitioner 

normally must specify the portions of the application that are in dispute or are 

incomplete. However, a petitioner need not refer to a particular portion of the 

licensee’s application when the licensee neither identified, nor was obligated to 

identify, the disputed issue in its application. Georgia Power Co., et al. (Vogtle 

Electric Generating Plant, Units 1 & 2), CLI-93-16, 38 NRC 25, 41 (1993). See

Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-05-15, 

61 NRC 365, 381 (2005). 

When a broad contention (though apparently admissible) has been admitted at 

an early stage in the proceeding, intervenors should be required to provide 

greater specificity and to particularize bases for the contention when the 

information required to do so has been developed. Cleveland Electric 

Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), LBP-84-28, 

20 NRC 129, 131 (1984). 

An intervention petitioner has an ironclad obligation to examine the publicly 

available documentary material pertaining to the facility in question with sufficient 

care to enable the petitioner to uncover any information that could serve as the 

JUNE 2011 PREHEARING MATTERS 111
foundation for a specific contention. Neither Section 189.a. of the AEA nor 

Section 2.309 of the Rules of Practice permits the filing of a vague, 

unparticularized contention, followed by an endeavor to flesh it out through 

discovery against the applicant or Staff. Duke Power Co. (Catawba Nuclear 

Station, Units 1 & 2), ALAB-687, 16 NRC 460, 468 (1982), vacated in part on 

other grounds, CLI-83-19, 17 NRC 1041 (1983); Duquesne Light Co. (Beaver 

Valley Power Station, Unit 2), LBP-84-6, 19 NRC 393, 412 (1984), citing

Catawba, supra, 16 NRC at 468. See Long Island Lighting Co. (Shoreham 

Nuclear Power Station, Unit 1), LBP-91-35, 34 NRC 163, 175-76 (1991). In 

Catawba, supra, the Board dealt with the question of whether the intervenor had 

provided sufficient information to support the admission of its contentions. An 

Appeal Board has rejected an applicant’s claim that Catawba imposes on an 

intervenor the duty to include in its contentions a critical analysis or response to 

any applicant or NRC Staff positions on the issues raised by the contentions 

which might be found in the publicly available documentary material. Such 

detailed answers to the positions of other parties go, not to the admissibility of 

contentions, but to the actual merits of the contentions. Florida Power and Light 

Co. (St. Lucie Nuclear Power Plant, Unit 1), ALAB-893, 27 NRC 627, 629-31 

(1988). The “ironclad obligation” of a petitioner to examine publicly available 

documentary evidence in support of its contentions applies only to information in 

support of a contention. A requirement also to examine contrary publicly 

available documentary evidence would unduly exacerbate the considerable 

threshold that a petitioner must already meet under the current revised 

contention rules. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Plant, 

Units 1 & 2), LBP-93-1, 37 NRC 5, 22 n.29 (1993). 

If, at the contentions stage of litigation, an intervenor offers no specific causes for 

spent fuel pool accidents other than the seven-step scenario admitted by the 

Board, the intervenor cannot later transform vague references to potential spent 

fuel pool catastrophes into litigable contentions. See Duke Energy Corp.

(Oconee Nuclear Station, Units 1, 2, & 3), CLI-99-11, 49 NRC 328, 333-35 

(1999) (NRC’s “strict contention rule” requires “detailed pleadings”). Carolina 

Power & Light Co. (Shearon Harris Nuclear Power Plant), CLI-01-11, 

53 NRC 370, 390 (2001). 

Under Section 2.309(f)(1)(vi) (formerly § 2.714(b)(2)(iii)), a contention is 

inadmissible where it fails to contain sufficient information to show that a genuine 

dispute exists with the applicant on a material issue of law or fact and does not 

include references to the specific portions of the application that petitioners may 

dispute. Texas Utilities Co. (Comanche Peak Steam Electric Station, Unit 2), 

LBP-92-37, 36 NRC 370, 384 (1992); Entergy Nuclear Vermont Yankee, L.L.C. 

and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), 

LBP-04-28, 60 NRC 548, 576 (2004). 

It should not be necessary for the presiding officer to speculate about what a 

pleading is supposed to mean, and petitioners/intervenors bear the responsibility 

for setting forth their grievances clearly. Entergy Nuclear Generation Co. and 

Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-15, 

71 NRC __ (June 17, 2010) (slip op. at 4). 

PREHEARING MATTERS 112 JUNE 2011
It is not the Board’s responsibility to search through pleadings or other materials 

to uncover arguments and support never advanced by the petitioners 

themselves; Boards may not infer unarticulated bases for contentions. USEC, 

Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 457 (2006); PPL 

Susquehanna, LLC (Susquehanna Steam Electric Station, Units 1 & 2), 

LBP-07-4, 65 NRC 281, 304-05 (2007); Shieldalloy Metallurgical Corp.

(Amendment Request for Decommissioning of the Newfield, New Jersey 

Facility), LBP-07-5, 65 NRC 341, 347 (2007). To establish standing as an 

organization, the petitioner must, in its own right as an organization, satisfy the 

same requirements for standing as an individual: injury, causation, and 

redressability. Westinghouse Electric Co., LLC (Hematite Decommissioning 

Project License Amendment Request), LBP-09-28, 70 NRC ___ (Dec. 3, 2009) 

(slip op. at 4), citing Consumers Energy Co. (Palisades Nuclear Plant), 

CLI-07-18, 65 NRC 399, 411 (2007). 

The Commission should not be expected to sift unaided through earlier briefs 

filed before the Licensing Board in order to piece together and discern the 

intervenors’ particular concern or the grounds for their claim. Florida Power & 

Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-01-17, 

54 NRC 3, 15 (2001) (citing Hydro Resources Inc., CLI-01-4, 53 NRC 31, 46 

(2001)). 

A contention filed in an application proceeding to extend the completion date of a 

construction permit is not admissible where it does not directly challenge the 

applicant’s alleged good-cause justification for the delay. Petitioners’ allegations 

of corporate wrongdoing do not show that a genuine dispute exists with applicant 

on its justification for the delay. Texas Utilities Co. (Comanche Peak Steam 

Electric Station, Unit 2), LBP-92-37, 36 NRC 370, 384 (1992). 

A claim that a statute or regulation requires a technical specification to remain a 

part of an operating license is an indispensable element of any contention 

challenging the relocation of material from a plant’s technical specifications to a 

licensee-controlled document because there can only be a right to a hearing or 

future changes to such material if there is a statutory or regulatory requirement 

that such matters be included in the plant’s technical specifications in the first 

place. Northeast Nuclear Energy Co. (Millstone Nuclear Power Stations, Units 2 

& 3), LBP-01-10, 53 NRC 273, 282 (2001). 

A petitioner must demonstrate that the issue raised in the contention is material 

to the findings the NRC must make. PPL Susquehanna, LLC (Susquehanna 

Steam Electric Station, Units 1 & 2), LBP-07-4, 65 NRC 281, 305 (2007); 

Southern Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), 

LBP-07-3, 65 NRC 237, 254 (2007). 

In a license renewal proceeding, 10 C.F.R. § 54.29 sets forth the findings the 

NRC must make to approve the license application. PPL Susquehanna, LLC

(Susquehanna Steam Electric Station, Units 1 & 2), LBP-07-4, 65 NRC 281, 305 

(2007). 

Pursuant to 10 C.F.R. § 2.309(f)(1)(iii), a contention must establish that it is 

within the scope of the proceedings. PPL Susquehanna, LLC (Susquehanna 

JUNE 2011 PREHEARING MATTERS 113
Steam Electric Station, Units 1 & 2), LBP-07-4, 65 NRC 281, 304 (2007); 

Southern Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), 

LBP-07-3, 65 NRC 237, 253 (2007). 

For a license renewal proceeding, 10 C.F.R. Part 54 and Part 51 establish the 

scope of the proceeding for safety and environmental concerns, respectively. 

PPL Susquehanna, LLC (Susquehanna Steam Electric Station, Units 1 & 2), 

LBP-07-4, 65 NRC 281, 306 (2007). 

 

A contention that challenges a rule or applicable statutory requirement is outside 

the scope of the proceedings. Progress Energy Carolinas, Inc. (Shearon Harris 

Nuclear Power Plant, Units 2 & 3), CLI-08-15, 68 NRC 1, 3 (2008). PPL 

Susquehanna, LLC (Susquehanna Steam Electric Station, Units 1 & 2), 

LBP-07-4, 65 NRC 281, 305 (2007); Southern Nuclear Operating Co. (Early Site 

Permit for Vogtle ESP Site), LBP-07-3, 65 NRC 237, 252, 268 (2007); PPL 

Susquehanna LLC (Susquehanna Steam Electric Station, Units 1 & 2), 

LBP-07-10, 66 NRC 1, 22-23 (2007); Entergy Nuclear Operations, Inc. (Indian 

Point Nuclear Generating Units 2 & 3), LBP-08-13, 68 NRC 43, 64 (2008). 

Nonetheless, a petitioner may submit a request for waiver of a rule under 

10 C.F.R. § 2.335. PPL Susquehanna, LLC (Susquehanna Steam Electric 

Station, Units 1 & 2), LBP-07-4, 65 NRC 281, 305 (2007); Southern Nuclear 

Operating Co. (Early Site Permit for Vogtle ESP Site), LBP-07-3, 65 NRC 237, 

252, 268 (2007). 

The NRC license renewal safety review focuses on potential detrimental effects 

of aging that ongoing regulatory oversight programs do not routinely address. If 

an aging-related issue is “adequately dealt with by regulatory processes” on an 

ongoing basis, it will not warrant review at the time of a license renewal 

application. PPL Susquehanna, LLC (Susquehanna Steam Electric Station, 

Units 1 & 2), LBP-07-4, 65 NRC 281, 307-09 (2007). 

Environmental issues identified as “category 1,” or “generic,” issues in 

10 C.F.R. Part 51, Subpart A, Appendix B, are not within the scope of a license 

renewal proceeding. On these issues the Commission found that it could draw 

generic conclusions that are applicable to nuclear power plants generally. The 

Commission was not able to make generic environmental findings on issues 

identified as “Category 2,” or “plant specific,” issues in 10 C.F.R. Part 51, 

Subpart A, Appendix B, and thus these issues are within the scope of license 

renewal, and applicants must provide a plant-specific review of them. PPL 

Susquehanna, LLC (Susquehanna Steam Electric Station, Units 1 & 2), 

LBP-07-4, 65 NRC 281, 309-12 (2007). 

The NRC has made a commitment, as part of its NEPA review process, to strive 

to reach the environmental justice goals described in Executive Order 12898. 

Southern Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), 

LBP-07-3, 65 NRC 237, 263 (2007). 

Generally, Licensing Boards litigate contentions rather than bases, the reach of a 

contention is defined by its terms and stated bases. Thus, a Board may redraft 

PREHEARING MATTERS 114 JUNE 2011
admitted contentions to clarify their scope. Southern Nuclear Operating Co.

(Early Site Permit for Vogtle ESP Site), LBP-07-3, 65 NRC 237, 255 (2007). 

When a COL application includes plans for possible low-level waste storage 

facilities that are contingent or speculative rather than intrinsic parts of the facility 

design, the adequacy of these plans is evaluated under the standard of 

10 C.F.R. § 52.79(a)(3) rather than the more detailed requirements of 

10 C.F.R. § 52.79(a)(4). Contentions claiming that detailed plans for such 

facilities are required are therefore inadmissible. Southern Nuclear Operating 

Co. (Vogtle Electric Generating Plant, Units 3 & 4), LBP-10-8, 71 NRC __ 

(May 19, 2010) (slip op. at 13). 

2.10.5.3 Response to Contentions 

Prior to entertaining any suggestion that a contention not be admitted, the proponent 

of the contention must be given some chance to be heard in response. The 

petitioners cannot be required to have anticipated in the contentions themselves the 

possible arguments their opponents might raise as grounds for denying admission 

of those proffered contentions. Houston Lighting & Power Co. (Allens Creek 

Nuclear Generating Station, Unit 1), ALAB-565, 10 NRC 521, 525 (1979); Yankee 

Atomic Electric Co. (Yankee Nuclear Power Station), LBP-96-2, 43 NRC 61, 83 n. 

17 (1996); rev’d in part on other grounds, CLI-96-7, 43 NRC 235. 

Although the Rules of Practice do not explicitly provide for the filing of either 

objections to contentions or motions to dismiss them, each presiding Board must 

fashion a fair procedure for dealing with such objections to contentions as are filed. 

The cardinal rule of fairness is that each side must be heard. Allens Creek, supra, 

10 NRC at 524. 

2.10.5.3.1 Reply Briefs 

In Commission practice, and in litigation practice generally, new arguments may 

not be raised for the first time in a reply brief. The reply brief should be narrowly 

focused on the legal or logical arguments presented in the applicant/licensee or 

NRC Staff answer. Louisiana Energy Services, L.P. (National Enrichment 

Facility), CLI-04-25, 60 NRC 223, 225 (2004), recons. denied by Louisiana 

Energy Services, L.P., CLI-04-35, 60 NRC 619 (2004). 

The Commission will not consider evidence presented for the first time in a reply 

brief. The Commission’s regulations provide for the filing of only three pleadings 

as of right with regard to standing and admissibility of contentions. The reply 

brief is the final of the three. Therefore, consideration of new evidence in or 

appended to a reply brief would deprive other parties of an opportunity to 

challenge the new evidence. Entergy Nuclear Operations, Inc. and Entergy 

Nuclear Fitzpatrick, LLC (James L. FitzPatrick Nuclear Power Plant), CLI-08-19, 

68 NRC 251, 261-62 (2008) (refusing to consider an individual’s affidavit 

authorizing an organization to represent him submitted with a reply brief). 

2.10.5.4 Material Used in Support of Contentions 

While it may be true that the important document in evaluating the adequacy of an 

agency’s environmental review is the agency’s final impact statement, a petitioner 

JUNE 2011 PREHEARING MATTERS 115
for intervention may look to the applicant’s environmental report for factual material 

in support of a proposed contention. Pennsylvania Power & Light Co.

(Susquehanna Steam Electric Station, Units 1 & 2), LBP-79-6, 9 NRC 291, 303 

(1979). A petitioner must file contentions based on any environmental issues raised 

by the applicant’s environmental report. However, the petitioner may be permitted 

to file new or amended contentions based on new information contained in 

subsequent NRC environmental documents. 10 C.F.R. § 2.309(f)(2) (formerly 

§ 2.714(b)(2)(iii)), 54 Fed. Reg. 33,168, 33,180 (Aug. 11, 1989), as corrected, 

54 Fed. Reg. 39,728 (Sept. 28, 1989). Sacramento Municipal Utility District

(Rancho Seco Nuclear Generating Station), CLI-93-3, 37 NRC 135, 154 (1993). 

Such new information, though, must “differ significantly” from the information 

provided in the environmental report, and these differences must be “material” to the 

outcome of the proceeding. Further, the new or amended contention must satisfy 

the usual substantive admissibility requirements under § 2.309(f)(1). Exelon 

Generation Co. (Early Site Permit for Clinton ESP Site), LBP-05-19, 62 NRC 134, 

163 (2005). 

“Thus, if a petitioner, through reference to the application itself, as well as through 

expert opinion, a document or documents, a fact-based argument, or some 

combination of all three, provides support for an otherwise admissible contention, 

sufficient to show a genuine dispute on a material issue of fact or law and 

reasonably indicating that further inquiry is appropriate, it should be admitted. And, 

particularly if no expert opinion or supporting relevant documents are submitted, any 

fact-based argument that is provided must be reasonably specific, coherent, and 

logical, sufficient to show such a dispute and indicate the appropriateness of further 

inquiry.” Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, 

Units 3 & 4), LBP-09-17, 70 NRC 311, 329 (2009). 

Where a petitioner seeks to file new or amended contentions arising out of new 

information derived from sources other than Staff-created NEPA documents, the 

petitioner must satisfy the requirements of 10 C.F.R. § 2.309(f)(2)(i)-(iii), as well as 

the usual substantive requirements for admissibility of contentions. Despite 

differences in regulatory language, analysis under § 2.309(f)(2)(i-iii) is to be 

conducted in the same manner as analysis under § 2.309(f)(2) of new or amended 

contentions based upon new information from Staff-created NEPA documents. 

Therefore, the new information must be materially different from the information that 

was previously available, and the ordinary contention admissibility criteria of 

§ 2.309(f)(1) must be satisfied as well. Exelon Generation Co. (Early Site Permit for 

Clinton ESP Site), LBP-05-19, 62 NRC 134, 160-61 (2005). 

The specificity and basis requirements for a proposed contention under 

10 C.F.R. § 2.309(f) (formerly § 2.714(b)) can be satisfied where the contention is 

based upon allegations in a sworn complaint filed in a judicial action and the 

applicable passages therein are specifically identified. This holds notwithstanding 

the fact that the allegations are contested. Consumers Power Co. (Midland Plant, 

Units 1 & 2), LBP-84-20, 19 NRC 1285, 1292-94 (1984). 

An intervenor can establish a sufficient basis for a contention by referring to a 

source and drawing an assertion from that reference. Commonwealth Edison Co.

(Braidwood Nuclear Power Station, Units 1 & 2), LBP-85-20, 21 NRC 1732, 1740 

(1985), rev’d and remanded on other grounds, CLI-86-8, 23 NRC 241 (1986), citing

Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), 

PREHEARING MATTERS 116 JUNE 2011
ALAB-590, 11 NRC 542, 548-49 (1980). See Public Service Co. of New Hampshire

(Seabrook Station, Units 1 & 2), LBP-89-4, 29 NRC 62, 69-70 (1989), aff’d, 

ALAB-918, 29 NRC 473 (1989), remanded on other grounds, Massachusetts v. 

NRC, 924 F.2d 311 (D.C. Cir. 1991), appeal dismissed as moot, ALAB-946, 

33 NRC 245 (1991); see also Georgia Power Co. (Vogtle Electric Generating Plant, 

Units 1 & 2), LBP-93-21, 38 NRC 143, 146 (1993). 

Like NRC NUREGs and regulatory guides, NRC guidance documents are routine 

agency policy pronouncements that do not carry the binding effect of regulations. 

International Uranium (USA) Corp., CLI-00-1, 51 NRC 9, 19 (2000); Southern 

Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), LBP-07-3, 

65 NRC 237, 254 (2007). 

A document put forth by an intervenor as supporting the basis for a contention is 

subject to scrutiny, both for what it does and does not show. When a report is the 

central support for a contention’s basis, the contents of that report in its entirety is 

before the Board and, as such, is subject to Board scrutiny, both as to those 

portions of the report that support an intervenor’s assertions and those portions that 

do not. Yankee Atomic Electric Co. (Yankee Nuclear Power Station), LBP-96-2, 

43 NRC 61, 90 (1996); rev’d in part on other grounds, CLI-96-7, 43 NRC 235 

(1996); Southern Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), 

LBP-07-3, 65 NRC 237, 254 (2007); PPL Susquehanna LLC (Susquehanna Steam 

Electric Station, Units 1 & 2), LBP-07-10, 66 NRC 1, 24 (2007)). 

Attaching a document in support of a contention without any explanation of its 

significance does not provide an adequate basis for a contention. Private Fuel 

Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-98-10, 

47 NRC 288, 298-99 (1988); PPL Susquehanna LLC (Susquehanna Steam Electric 

Station, Units 1 & 2), LBP-07-10, 66 NRC 1, 24 (2007); Southern Nuclear Operating 

Co. (Early Site Permit for Vogtle ESP Site), LBP-07-3, 65 NRC 237, 254 (2007). 

A petitioner’s imprecise reading of a reference document, or typographical errors in 

that document, cannot serve to generate an issue suitable for litigation. Georgia 

Institute of Technology (Georgia Tech Research Reactor, Atlanta, Ga.), LBP-95-6, 

41 NRC 281, 300 (1995). A petitioner is obligated to provide the analyses and 

supporting evidence showing why its bases support its contention. A Licensing 

Board may not make factual inferences on a petitioner’s behalf. Id. at 305. 

However, where a contention is based on a factual underpinning in a document 

which has been essentially repudiated by the source of that document, a Licensing 

Board will dismiss the contention if the intervenor cannot offer another independent 

source of information on which to base the contention. Georgia Power Co.

(Alvin W. Vogtle Electric Generating Plant, Units 1 & 2), ALAB-872, 26 NRC 127, 

136 (1987); Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), 

CLI-89-3, 29 NRC 234, 241 (1989). 

An intervention petitioner may rely upon an NRC Staff regulatory guide to support a 

contention alleging that an application is deficient. The petitioner must provide an 

adequate explanation of how alleged inadequacies support its contention and 

provide additional information in support. It is insufficient for a petitioner to merely 

refer to a Staff letter to an applicant which requests additional information based on 

JUNE 2011 PREHEARING MATTERS 117
a regulatory guide citation. Louisiana Energy Services, L.P. (Claiborne Enrichment 

Center), LBP-91-41, 34 NRC 332, 338-339, 347, 354 (1991). Furthermore, it is well 

established that NUREGs and regulatory guides, by their very nature, serve merely 

as guidance and cannot prescribe requirements. Curators of University of Missouri, 

CLI-95-1, 41 NRC 71, 98, 100 (1995). See also Duke Energy Corp. (Catawba 

Nuclear Station, Units 1 & 2), CLI-04-29, 60 NRC 417, 424 (2004), reconsid. denied, 

CLI-04-37, 60 NRC 646 (2004) (“Guidance documents are, by nature, only advisory. 

They need not apply in all situations and do not themselves impose legal 

requirements on licensees.”). Nor does the NRC’s review of regulations governing a 

particular issue serve as a basis for a particular contention concerning that issue. A 

petitioner’s differing opinion as to what applicable regulations should (but do not) 

require also cannot serve as a basis for a contention. Georgia Institute of 

Technology (Georgia Tech Research Reactor, Atlanta, Ga.), LBP-95-6, 

41 NRC 281, 303 (1995). 

A petitioner is not permitted to incorporate massive documents by reference as the 

basis for, or a statement of, his contentions. Tennessee Valley Authority (Browns 

Ferry Nuclear Plant, Units 1 & 2), LBP-76-10, 3 NRC 209, 216 (1976). 

While a NEPA analysis relating to aquatic impacts must have a baseline study from 

which to operate, no NRC regulations or guidance indicate how that baseline must 

be established. Thus, a preexisting baseline study for a nearby site may be 

acceptable. Consequently, when such a study exists, a contention challenging the 

lack of a baseline study in an environmental report must be dismissed. Southern 

Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), LBP-07-3, 

65 NRC 237, 256-57 (2007). 

2.10.5.5 Timeliness of Submission of Contentions 

Where a contention challenges the omission of particular information or an issue 

from an application, and the information is later supplied by the applicant or 

considered by the Staff in a draft EIS, the contention is moot. Without requiring 

submission of a new or amended contention, the original “omission” contention 

could be transformed into a broad series of disparate claims. This approach would, 

in turn, circumvent NRC contention pleading standards and defeat the contention 

rule’s purposes: (1) providing notice to the opposing party of the issues that will be 

litigated; (2) ensuring that at least a minimal factual or legal foundation exists for the 

different claims that have been alleged; and (3) ensuring there exists an actual 

genuine dispute with the applicant on a material issue of law or fact. Duke Energy 

Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), 

CLI-02-28, 56 NRC 373, 383 (2002), clarifying CLI-02-17, 56 NRC 1 (2002). See 

also Duke Energy Corp. (Catawba Nuclear Station, Units 1 & 2), LBP-04-7, 

59 NRC 259, 263 (2004). 

Where a contention of omission that is the sole contention in the proceeding has 

been rendered moot and no other motions remain pending, an order dismissing the 

contention ordinarily would terminate the proceeding. However, the Commission 

has instructed that when a contention of omission has been rendered moot, the 

intervenor – if it wishes to raise specific challenges regarding the new information – 

may timely file a new contention that addresses the admissibility factors in 

PREHEARING MATTERS 118 JUNE 2011
10 C.F.R. 2.309(f)(1). Amergen Energy Co., LLC (Oyster Creek Nuclear Generating 

Station), LBP-06-16, 63 NRC 737, 744 (2006). 

The Atomic Safety Licensing Board decided that the time to file a contention tolls 

when sufficient information is reasonably available on which to base the contention. 

The intervenor State of Utah claimed its NEPA contentions were timely, as they 

were filed within 30 days of the issuance of the Staff’s DEIS. However, the Board 

found that sufficient information on which to base the intervenor’s contention was 

known to the intervener many months prior to the issuance of the Staff’s DEIS. The 

Board decided that the intervener’s time to submit contentions tolled when the 

information first became available, and not later when the Staff issued its DEIS. 

Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), 

LBP-00-27, 52 NRC 216 (2000). 

The question of when a new or amended contention must be filed in order to meet 

the late filing standard of 10 C.F.R. 2.309 – and specifically the critical criteria 

concerning “good cause” for late filing – calls for a judgment about when the matter 

is sufficiently factually concrete and procedurally ripe to permit the filing of a 

contention. 

The Licensing Board’s general authority to shape the course of a proceeding, 

10 C.F.R. § 2.319(g) (formerly § 2.718(e)), will not be utilized as the foundation for 

the Board’s acceptance of a late-filed contention. Consumers Power Co. (Midland 

Plant, Units 1 & 2), LBP-84-20, 19 NRC 1285, 1290 (1984). 

A party seeking to add a new contention after the close of the record must satisfy 

both standards for admitting a late-filed contention set forth in 10 C.F.R. § 2.309 and 

the criteria, as established by case law, for reopening the record, Long Island 

Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-30, 17 NRC 1132, 

1136 (1983), citing Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power 

Plant, Units 1 & 2), CLI-82-39, 16 NRC 1712, 1715 (1982), despite the fact that 

nontimely contentions raise matters which have not been previously litigated. 

Cincinnati Gas & Electric Co. (William H. Zimmer Nuclear Power Station, Unit 1), 

LBP-83-58, 18 NRC 640, 663 (1983), citing Diablo Canyon, supra, 

16 NRC at 1714-15. 

A Licensing Board need not address in any particular order whether a late-filed 

contention meets the basis and specificity requirements and satisfies late-filed 

contention requirements so long as both are addressed. Pacific Gas and Electric 

Co. (Diablo Canyon Nuclear Plant, Units 1 & 2), LBP-93-9, 37 NRC 433, 436-37 

(1993). 

Generally, in dealing with a late-filed contention, a presiding officer first analyzes the 

question of the issue’s admissibility under the late-filing factors in 

10 C.F.R. § 2.309(c) (formerly § 2.714(a)(1)). Then, to the degree the balancing 

process mandated by that provision supports admission of the contention, the 

presiding officer goes on to determine whether the issue statement merits admission 

under the specificity and basis standards set forth in Section 2.309(f). Private Fuel 

Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-00-01, 

51 NRC 1, 5 (2000). 

JUNE 2011 PREHEARING MATTERS 119
In considering the admissibility of late-filed contentions, the Licensing Board must 

balance the [eight] factors specified in 10 C.F.R. § 2.309(c)(1) (formerly § 2.714(a)) 

for dealing with nontimely filings. Cincinnati Gas and Electric Co. (William H. 

Zimmer Nuclear Station), LBP-79-22, 10 NRC 213, 214 (1979); Philadelphia Electric 

Co. (Limerick Generating Station, Units 1 & 2), ALAB-819, 22 NRC 681, 725 (1985). 

In addition, late-filed contentions filed on subsequently issued NRC environmental 

review documents are subject to the [eight] factor test set forth in 

10 C.F.R. 2.309(c)(1)(i)-(viii) (formerly § 2.714(a)(1)(i)-(v)). Sacramento Municipal 

Utility District (Rancho Seco Nuclear Generating Station), CLI-93-12, 37 NRC 355, 

359-360 (1993). 

To be accepted, a late-filed contention must satisfy not only the late-filed factors but 

also the requirements for contentions. A Licensing Board need not address these 

considerations in any particular order, although both are required for admissibility. 

Analyzing the contention requirements first permits a Board to determine whether or 

not a significant health and safety or environmental question is being advanced, 

thus assisting the Board in considering lateness factor (viii), the contribution to an 

adequate record to be made by the intervenor. Sacramento Municipal Utility District

(Rancho Seco Nuclear Generating Station), LBP-93-23, 38 NRC 200, 207 (1993). 

The determination whether to accept a contention that was susceptible of filing 

within the period prescribed by the Rules of Practice on an untimely basis involves a 

consideration of all [eight] 10 C.F.R. § 2.309(c)(1) factors and not just the reason, 

substantial or not as the case may be, why the petitioner did not meet the deadline. 

Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), ALAB-687, 16 NRC 460, 

470 (1982), vacated in part on other grounds, CLI-83-19, 17 NRC 1041 (1983). 

The proponent of a late contention should affirmatively address the [eight] factors 

and demonstrate that, on balance, the contention should be admitted. Consumers 

Power Co. (Midland Plant, Units 1 & 2), LBP-82-63, 16 NRC 571, 578 (1982), citing

Duke Power Co. (Perkins Nuclear Station, Units 1, 2, & 3), ALAB-615, 12 NRC 350, 

352 (1980). 

If a petitioner fails to address the criteria in 10 C.F.R. § 2.309(c)(1) that govern latefiled contentions, a petitioner does not meet its burden to establish the admissibility 

of such contentions. Baltimore Gas and Electric Co. (Calvert Cliffs Nuclear Power 

Plant, Units 1 & 2), LBP-98-26, 48 NRC 232, 241 (1998); Baltimore Gas and Electric 

Co. (Calvert Cliffs Nuclear Power Plant, Units 1 & 2), CLI-98-25, 48 NRC 325, 347 

n.9 (1998). 

10 C.F.R. § 2.309(c) (formerly § 2.714(a)(1)) requires that all the factors 

enumerated in that regulation should be applied to late-filed contentions even where 

the licensing-related document, upon which the contentions are predicated, was not 

available within the time prescribed for filing timely contentions. Long Island 

Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-42, 18 NRC 112, 

116 (1983); Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), ALAB-813, 

22 NRC 59, 82 (1985), citing Catawba, CLI-83-19 supra, 17 NRC at 1045; Louisiana 

Energy Services, L.P. (Claiborne Enrichment Center), LBP-94-11, 39 NRC 205, 207 

(1994). 

PREHEARING MATTERS 120 JUNE 2011
The Commission has held that any refiled contention would have to meet the [eight]-

factor test of 10 C.F.R. § 2.309(c)(1) (formerly § 2.714(a)(1)), if not timely filed, even 

if the specifics could not have been known earlier because the documents on which 

they were based had not yet been issued. Washington Public Power Supply 

System (WPPSS Nuclear Project No. 1), LBP-83-66, 18 NRC 780, 796 (1983), 

citing Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), CLI-83-13, 

17 NRC 1041 (1983). 

A Board must perform this balancing of the lateness factors, even where all the 

parties to the proceeding have waived their objections and agreed, by stipulation, to 

the admission of the late-filed contention. Commonwealth Edison Co. (Braidwood 

Nuclear Power Station, Units 1 & 2), CLI-86-8, 23 NRC 241, 251 (1986). See

Boston Edison Co. (Pilgrim Nuclear Power Station), ALAB-816, 22 NRC 461, 466 

(1985). 

The required balancing of factors is not obviated by the circumstances that the 

proffered contentions are those of a participant that has withdrawn from the 

proceeding. Houston Lighting and Power Co. (South Texas Project, Units 1 & 2), 

LBP-82-91, 16 NRC 1364, 1367 (1982), citing Gulf States Utilities Co. (River Bend 

Station, Units 1 & 2), ALAB-444, 6 NRC 760, 795-98 (1977). 

In balancing the lateness factors, all factors must be taken into account; however, 

there is no requirement that the same weight be given to each of them. South 

Texas, supra, 16 NRC at 1367, citing South Carolina Electric and Gas Co.

(Virgil C. Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881, 895 (1981); 

Consumers Power Co. (Midland Plant, Units 1 & 2), LBP-84-20, 19 NRC 1285, 1292 

(1984). A Board is entitled to considerable discretion in the method it employs to 

balance the lateness factors. Commonwealth Edison Co. (Braidwood Nuclear 

Power Station, Units 1 & 2), LBP-85-11, 21 NRC 609, 631 (1985), rev’d and 

remanded on other grounds, CLI-86-8, 23 NRC 241 (1986), citing Virginia Electric 

and Power Co. (North Anna Power Station, Units 1 & 2), ALAB-342, 4 NRC 98, 107 

(1976). 

The admissibility of a late-filed contention must be determined by a balancing of all 

of the late intervention factors in 10 C.F.R. § 2.309(c)(1) (formerly § 2.714(a)). 

Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), CLI-83-23, 

18 NRC 311, 312 (1983). 

Even where an applicant does not comply with a standing order to serve all relevant 

papers on the Board and parties, the admissibility of an intervenor’s late-filed 

contention directed toward such papers must be determined by a balancing of all 

the factors. Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), 

ALAB-765, 19 NRC 645, 657 (1984), overruling in part, LBP-84-16, 19 NRC 857, 

868 (1984). 

A contention proposing that the applicant’s environmental report must include a 

discussion of the environmental impacts of having a government entity take control 

of high-level waste in the event the applicant defaults on its license challenges both 

the Waste Confidence Rule and NRC’s decommissioning rules and is therefore 

inadmissible. Luminant Generation Co., LLC (Comanche Peak Nuclear Power 

Plant, Units 3 & 4), LBP-09-17, 70 NRC 311, 334-336 (2009); South Texas Project 

JUNE 2011 PREHEARING MATTERS 121
Nuclear Operating Co. (South Texas Project, Units 3 & 4), LBP-09-21, 70 NRC 581, 

597-598 (2009). 

NRC Staff activities that occur after issuance of a Notice of Opportunity for Hearing 

are not grounds for the Board to extend the deadline that the notice provides for 

filing contentions. A party seeking to file contentions after the notice’s deadline in 

such circumstances must, therefore, either file a timely motion for leave to file a new 

contention – showing, pursuant to 10 C.F.R. § 2.309(f)(2), that the Staff’s activities 

engendered materially different information that was not previously available – or 

satisfy the NRC’s rules governing late-filed contentions. Entergy Nuclear Vermont 

Yankee, L.L.C. and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear 

Power Station), LBP-04-28, 60 NRC 548, 577-78 (2004). 

NRC could adopt, without resort to notice-and-comment rulemaking, “unavoidable 

and extreme circumstances” test, in lieu of a “good cause” test, to assess requests 

for extensions of time in which to file contentions in nuclear power plant license 

renewal proceedings. The new rule was procedural since it merely altered the 

standard for enforcement of filing deadlines and did not purport to regulate or limit 

the interested party’s substantive rights. National Whistleblower Center v. NRC, 

208 F.3d 256, 262-63 (D.C. Cir. 2000). 

The Commission’s regulations at 10 C.F.R. 2.309(f)(2) provide for the filing of new 

or amended contentions only with the leave of the presiding officer, and upon a 

showing of three factors: (1) the information upon which the amended or new 

contention is based was not previously available; (2) the information upon which the 

amended or new contention is based is materially different than information 

previously available; and (3) the amended or new contention has been submitted in 

a timely fashion based on the availability of the subsequent information. If new and 

materially different information becomes available during the processing of the 

application, and a petitioner promptly files a new contention based on this new 

information, the contention is admissible, assuming that it also satisfied the general 

contention admissibility standards contained in 10 C.F.R. § 2.309(f)(1). Entergy 

Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont 

Yankee Nuclear Power Station), LBP-06-14, 63 NRC 568, 572 (2006). An appeals 

court ruling does not constitute new information on which a party can base a new 

contention. System Energy Resources, Inc. (Early Site Permit for Grand Gulf ESP 

Site), CLI-07-10, 65 NRC 144, 146 (2007); see also Nuclear Management Co., LLC

(Palisades Nuclear Plant), CLI-07-9, 65 NRC 139, 142 (2007). 

If a contention satisfies the timeliness requirement of 10 C.F.R. 2.309(f)(2)(iii), then, 

by definition, it is not subject to 10 C.F.R. 2.309(c), which specifically applies to 

nontimely filings. The three (f)(2) factors are not mere elaborations on the “good 

cause” factor of Section 2.309(c)(1)(i), since “good cause” to file a nontimely 

contention may have nothing to do with the factors set forth in (f)(2). Entergy 

Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont 

Yankee Nuclear Power Station), LBP-06-14, 63 NRC 568, 573 (2006). 

A hearing request will be considered timely when the petitioner lacks both the actual 

and constructive notice of its opportunity to request a hearing as of the deadline 

specified by the agency, and the petitioner files the hearing request promptly upon 

PREHEARING MATTERS 122 JUNE 2011
receipt of actual notice. Detroit Edison Co., Fermi Power Plant (Independent Spent 

Fuel Storage Installation), LBP-09-20, 70 NRC 565, 570 (2009). 

A new or amended contention may be timely for purposes of 

10 C.F.R. 2.309(f)(2)(iii) if the new and material information was revealed in a 

piecemeal fashion, and where the foundation for the contention is not reasonably 

available until the later pieces fall into place. In such cases, the Licensing Board 

must determine when, as a cumulative matter, the separate pieces of the 

information puzzle were sufficiently in place to make the particular concerns readily 

apparent. Vermont Yankee, LBP-06-14, 63 NRC at 579. [Note: Section 2.309 

requires that the petition to intervene or request for hearing include a specification of 

the contentions that the petitioner proposes for litigation. This differs from the 

former provisions of Part 2 that permitted a petitioner to file a supplement to his or 

her petition to intervene with a list of contentions which the petitioner sought to have 

litigated in the hearing. The new practice of requiring contentions to be filed at time 

of the petition/request does not obviate the concept of late-filed contentions 

discussed below.] 

2.10.5.5.1 Factor #1 – Good Cause for Late Filing 

A late-filed contention must meet the requirements concerning good cause for 

late filing pursuant to 10 C.F.R. § 2.309(c)(1) (formerly § 2.714(a)(1)). Cleveland 

Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), LBP-82-90, 

16 NRC 1359, 1360 (1982); Houston Lighting & Power Co. (South Texas Project, 

Units 1 & 2), LBP-82-91, 16 NRC 1364, 1366-67 (1982); Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), LBP-83-42, 18 NRC 112, 117 (1983). 

Considerable importance generally has been attributed to factor one – “good 

cause” for late filing – in that a failure to meet this factor enhances considerably 

the burden of justifying the other factors. Yankee Atomic Electric Co. (Yankee 

Nuclear Power Station), LBP-96-15, 44 NRC 8, 24 (1996). Among the other four 

“late-filing” factors, factors [eight] and [seven] – contribution to a sound record 

and broadening issues/delay in the proceeding – generally have been considered 

as having the most significance in proceedings in which there are no other 

parties or ongoing related proceedings. See Long Island Lighting Co. (Shoreham 

Nuclear Power Station, Unit 1), ALAB-743, 18 NRC 387, 399, 402; see also

Houston Lighting & Power Co. (South Texas Project, Units 1 & 2), LBP-82-91, 

16 NRC 1364, 1368 (1982); Yankee Atomic Electric Co. (Yankee Nuclear Power 

Station), LBP-96-15, 44 NRC 8, 25 (1996); Private Fuel Storage, L.L.C.

(Independent Spent Fuel Storage Installation), LBP-98-29, 48 NRC 286 (1998); 

Private Fuel Storage, L.L.C., LBP-99-6, 49 NRC 114, 119 (1999); Private Fuel 

Storage, L.L.C., LBP-99-7, 49 NRC 124, 128 (1999). 

In evaluating the admissibility of a late-filed contention, the first and foremost 

factor in this appraisal is whether good cause exists that will excuse the late filing 

of the contention. See Commonwealth Edison Co. (Braidwood Nuclear Power 

Station, Units 1 & 2), CLI-86-8, 23 NRC 241, 244 (1986); Private Fuel Storage, 

L.L.C. (Independent Spent Fuel Storage Installation), CLI-04-4, 59 NRC 31, 44 

(2004). And the good cause element has two components that may impact on a 

presiding officer’s assessment of the timeliness of a contention’s filing: (1) when 

was sufficient information reasonably available to support the submission of the 

JUNE 2011 PREHEARING MATTERS 123
late-filed contention; and (2) once the information was available, how long did it 

take for the contention admission request to be prepared and filed. See Private 

Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-99-3, 

49 NRC 40, 46-48 (assessing late-filing factors relative to petition to intervene), 

aff’d, CLI-99-10, 49 NRC 318 (1999). Private Fuel Storage, L.L.C. (Independent 

Spent Fuel Storage Installation), LBP-01-13, 53 NRC 319, 324 (2001). 

Under 10 C.F.R. § 2.309(c) (formerly § 2.714(a)), good cause may exist for a 

late-filed contention if it: (1) is wholly dependent upon the content of a particular 

document; (2) could not therefore be advanced with any degree of specificity in 

advance of the public availability of that document; and (3) is tendered with the 

requisite degree of promptness once that document comes into existence and is 

amenable to rejection on the strength of a balancing of all five of the late 

intervention factors set forth in that section. Public Service Co. of New 

Hampshire (Seabrook Station, Units 1 & 2), ALAB-737, 18 NRC 168, 172 n.4 

(1983), citing Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), 

CLI-83-19, 17 NRC 1041, 1045 (1983); Kansas Gas & Electric Co. (Wolf Creek 

Generating Station, Unit 1), LBP-84-1, 19 NRC 29, 31 (1984). See also

Kerr-McGee Chemical Corp. (West Chicago Rare Earths Facility), LBP-89-16, 

29 NRC 508, 514 (1989). When a licensing-related document becomes 

available, an intervenor must file promptly its contentions based on that 

document. Public Service Co. of New Hampshire (Seabrook Station, Units 1 

& 2), LBP-89-4, 29 NRC 62, 70 (1989), aff’d, ALAB-918, 29 NRC 473 (1989), 

remanded, Massachusetts v. NRC, 924 F.2d 311, 333-337 (D.C. Cir. 1991), 

appeal dismissed as moot, ALAB-946, 33 NRC 245 (1991). However, an 

intervenor is not required to file contentions based upon a draft licensing-related 

document. West Chicago, supra, 29 NRC at 514. 

In considering the extent to which the petitioner had shown good cause for filing 

supplements out-of-time, the Licensing Board recognized that the petitioner was 

appearing pro se until just before the special prehearing conference. Petitioner’s 

early performance need not adhere rigidly to the Commission’s standards and, in 

this situation, the Board would not weigh the good cause factor as heavily as it 

might otherwise. Florida Power and Light Co. (Turkey Point Nuclear Generating 

Station, Units 3 & 4), LBP-79-21, 10 NRC 183, 190 (1979). 

An intervenor cannot establish good cause for filing a late contention when the 

information on which the contention is based was publicly available several 

months prior to the filing of the contention. Commonwealth Edison Co.

(Braidwood Nuclear Power Station, Units 1 & 2), LBP-85-11, 21 NRC 609, 

628-629 (1985), rev’d and remanded on other grounds, CLI-86-8, 23 NRC 241 

(1986); Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), 

ALAB-828, 23 NRC 13, 21 (1986). 

Withdrawal of one party has been held not to constitute good cause for the delay 

of a petitioner in seeking to substitute itself for the withdrawing party, or, 

comparably, to adopt the withdrawing party’s contentions. Houston Lighting & 

Power Co. (South Texas Project, Units 1 & 2), LBP-82-91, 16 NRC 1364, 1369 

(1982), citing Gulf States Utilities Co. (River Bend Station, Units 1 & 2), 

ALAB-444, 6 NRC 760, 796-97 (1977). The same standards apply to an existing 

intervenor seeking to adopt the abandoned contentions of another intervenor as 

PREHEARING MATTERS 124 JUNE 2011
to a “newly arriving legal stranger.” Houston Lighting & Power Co. (South Texas 

Project, Units 1 & 2), LBP-82-91, 16 NRC 1364, 1369 (1982). However, if under 

the circumstances of a particular case, there is a sound foundation for allowing 

one entity to replace another, it can be taken into account in making the “good 

cause” determination under 10 C.F.R. § 2.309(c)(1) (formerly § 2.714(a)). 

Houston Lighting and Power Co. (South Texas Project, Units 1 & 2), ALAB-799, 

21 NRC 360, 384 (1985), citing River Bend, supra, 6 NRC at 796. 

Generally a “good cause” finding based on “new information” can be resolved by 

a straightforward inquiry into when the information at issue was available to the 

petitioner. In some instances, however, the answer to the “good cause” factor 

may involve more than looking at the dates on the various documents submitted 

by the petitioners. Instead, the inquiry turns on a more complex determination 

about when, as a cumulative matter, the separate pieces of the new information 

“puzzle” were sufficiently in place to make the particular concerns espoused 

reasonably apparent. Yankee Atomic Electric Co. (Yankee Nuclear Power 

Station), LBP-96-15, 44 NRC 8, 26 (1996). 

The appearance of information for the first time in a document not available when 

contentions initially were to be filed would satisfy the “good cause for delay” 

aspect of the late-filed contention criteria, assuming the proposed contention was 

filed shortly after the information became available. Yankee Atomic Electric Co.

(Yankee Nuclear Power Station), CLI-96-7, 43 NRC 235, 255 (1996). However, 

see Duke Power Co., (Catawba Nuclear Station, Units 1 & 2), CLI-83-19, 

17 NRC 1041, 1045, 1048 (1983) (unavailability of licensing-related document 

does not establish good cause for late filing of a contention if information was 

publicly available early enough to provide the basis for the timely filing of that 

contention). Power Authority of the State of New York (James A. Fitzpatrick 

Nuclear Power Plant; Indian Point Nuclear Generating Unit 3), LBP–01-4, 53 

NRC 121, 127 (2001). 

When “new information” does not, because of its proprietary status, become 

available to an intervenor until after the time for filing contentions generally has 

elapsed, good cause for late filing would be demonstrated, assuming the 

contention is filed shortly after the information becomes available. Philadelphia 

Electric Co. (Limerick Generating Station, Units 1 & 2), LBP-83-39, 18 NRC 67, 

69 (1983); Power Authority of the State of New York (James A. FitzPatrick 

Nuclear Power Plant; Indian Point Nuclear Generating Unit 3), LBP-01-4, 53 

NRC 121, 132 (2001). 

The fact that petitioners raise an argument to support admission of a contention 

for the first time late in a proceeding is not necessarily fatal where the argument 

rests significantly on a licensee document prepared after the petitioner submitted 

its original contention and where petitioners promptly bring it to the adjudicator’s 

attention. Yankee Atomic Electric Co. (Yankee Nuclear Power Station), 

CLI-96-7, 43 NRC 235, 255 (1996). 

The institutional unavailability of a licensing-related document does not establish 

good cause for filing a contention late if information was publicly available early 

enough to provide the basis for the timely filing of that contention. Duke Power 

Co. (Catawba Nuclear Station, Units 1 & 2), CLI-83-19, 17 NRC 1041, 1045, 

JUNE 2011 PREHEARING MATTERS 125
1048 (1983); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), 

LBP-83-42, 18 NRC 112, 117 (1983); Long Island Lighting Co. (Shoreham 

Nuclear Power Station, Unit 1), LBP-84-30, 20 NRC 426, 436-37 (1984); Duke 

Power Co. (Catawba Nuclear Station, Units 1 & 2), ALAB-813, 22 NRC 59, 84-85 

(1985). Section 189a of the Act is not offended by a procedural rule that simply 

recognizes that the public’s interest in an efficient administrative process is not 

properly accounted for by a rule of automatic admission for certain late-filed 

contentions. Catawba, supra, 17 NRC at 1046. See Duke Power Co. (Catawba 

Nuclear Station, Units 1 & 2), ALAB-813, 22 NRC 59, 82 (1985), citing Catawba, 

CLI-83-19, supra, 17 NRC at 1045-47. Cf. BPI v. AEC, 502 F.2d 424 

(D.C. Cir. 1974). 

Section 189.a. of the AEA does not require the Commission to give controlling 

weight to the good cause factor in 10 C.F.R. § 2.309(c)(1)(i) (formerly 

§ 2.714(a)(1)(i)) in determining whether to admit a late-filed contention based on 

licensing documents which were not required to be prepared early enough to 

provide a basis for a timely filed contention. The unavailability of those 

documents does not constitute a showing of good cause for admitting a late-filed 

contention when the factual predicate for that contention is available from other 

sources in a timely manner. Duke Power Co. (Catawba Nuclear Station, Units 1 

& 2), CLI-83-19, 17 NRC 1041, 1043 (1983). 

The appearance of a newspaper article is not sufficient grounds for the late filing 

of a contention about matters that have been known for a long time. Cleveland 

Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), LBP-82-11, 

15 NRC 348 (1982). Compare, Cleveland Electric Illuminating Co. (Perry 

Nuclear Power Plant, Units 1 & 2), LBP-82-53, 16 NRC 196, 200-01 (1982) 

(up-to-date journals demonstrate good cause) and Cleveland Electric Illuminating 

Co. (Perry Nuclear Power Plant, Units 1 & 2), LBP-82-15, 15 NRC 555, 557 

(1982). 

A submitted document, while perhaps incomplete, may be enough to require 

contentions related to it to be filed promptly. Philadelphia Electric Co. (Limerick 

Generating Station, Units 1 & 2), LBP-83-39, 18 NRC 67, 69 (1983). 

A contention based on a DEIS which contains no new information relevant to the 

contention, lacks good cause for late filing. Cleveland Electric Illuminating Co.

(Perry Nuclear Power Plant, Units 1 & 2), LBP-82-79, 16 NRC 1116, 1118 

(1982). 

An intervenor who has previously submitted timely contentions may establish 

good cause for the late filing of amended contentions by showing that the 

amended contentions restate portions of the earlier timely filed contentions and 

were promptly filed in response to a Commission decision which stated a new 

legal principle. Texas Utilities Electric Co. (Comanche Peak Steam Electric 

Station, Unit 1), LBP-86-36A, 24 NRC 575, 579 (1986), aff’d, ALAB-868, 

25 NRC 912, 923 (1987). 

The finding of good cause for the late filing of contentions is related to the total 

previous unavailability of information. Philadelphia Electric Co. (Limerick 

Generating Station, Units 1 & 2), LBP-83-39, 18 NRC 67, 69 (1983). 

PREHEARING MATTERS 126 JUNE 2011
Ordinarily, it is sufficient to show good cause for lateness when a showing that 

the Staff’s environmental review documents significantly differ from the 

applicant’s environmental report. However, a petitioner may be able to meet the 

late-filed contention requirements without a showing that the Staff’s 

environmental review documents significantly differ from the applicant’s 

environmental report by presenting significant new evidence not previously 

available. Sacramento Municipal Utility District (Rancho Seco Nuclear 

Generating Station), CLI-93-12, 37 NRC 355, 359-360 (1993). The fact that a 

party previously raised an issue in a comment regarding EIS scoping does not 

excuse the party from contention timeliness rules when later challenging the EIS 

itself. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), 

CLI-04-4, 59 NRC 31, 45 (2004). 

The Atomic Safety Licensing Board decided that, notwithstanding that an 

intervenor state’s contentions were based on the Staff’s DEIS, the intervenor still 

bore the burden of demonstrating that the late contentions merited submission. 

The Board cited the Commission’s decisions and statements in the Federal 

Register that, although 10 C.F.R. § 2.309(f)(2) (formerly § 2.714(b)(2)(iii)) permits 

contentions based on an applicant’s environmental report to be amended if new 

or conflicting data are later presented in a final environmental impact statement 

(FEIS) or a supplement to the DEIS, this does not alter the standards of 

10 C.F.R. § 2.309(c)(1) (formerly § 2.714(a)). Private Fuel Storage, L.L.C.

(Independent Spent Fuel Storage Installation), LBP-00-28, 52 NRC 226 (2000). 

See also Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), CLI-83-19, 

17 NRC 1041 (1983); 54 Fed. Reg. 33,168, 33,172 (1989). However, an Atomic 

Safety Licensing Board has held that if a contention is timely under 

10 C.F.R. § 2.309(f)(2)(ii), it is contradictory to rule that the intervenor must also 

satisfy the eight additional factors for nontimely filings found in 

10 C.F.R. § 2.309(c). Entergy Nuclear Vermont Yankee, L.L.C. and Entergy 

Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-05-32, 

62 NRC 813, 821 (2005). 

Before a contention is excluded from consideration, the intervenor should have a 

fair opportunity to respond to applicant’s comments. When an intervenor files a 

late contention and argues that it has good cause for late filing because of the 

recent availability of new information, intervenor should have the chance to 

comment on applicant’s objection that the information was available earlier. 

Intervenors should be permitted to reply to the opposition to the admission of a 

late-filed contention. The principle that a party should have an opportunity to 

respond is reciprocal. When intervenor introduces material that is entirely new, 

applicant will be permitted to respond. Due process requires an opportunity to 

comment. If intervenors find that they must make new factual or legal 

arguments, they should clearly identify the new material and give an explanation 

of why they did not anticipate the need for the material in their initial filing. If the 

explanation is satisfactory, the material may be considered, but applicant will be 

permitted to respond. Cleveland Electric Illuminating Co. (Perry Nuclear Power 

Plant, Units 1 & 2), LBP-82-89, 16 NRC 1355, 1356 (1982); Louisiana Energy 

Services, L.P. (Claiborne Enrichment Center), LBP-94-11, 39 NRC 205, 206 

(1994), citing Houston Lighting and Power Co. (Allens Creek Nuclear Generating 

Station, Unit 1), ALAB-565, 10 NRC 521, 524 (1979). 

JUNE 2011 PREHEARING MATTERS 127
The fact that a party may have delayed the filing of a contention in the hopes of 

settling the issue without resorting to litigation in an adjudicatory proceeding does 

not constitute good cause for failure to file on time. Commonwealth Edison Co.

(Braidwood Nuclear Power Station, Units 1 & 2), CLI-86-8, 23 NRC 241, 245 

(1986). 

Informal negotiations among parties, even under a Board’s aegis, are not an 

adequate substitute for a party’s right to pursue its legitimate interest in issues in 

formal adjudicatory hearings. Philadelphia Electric Co. (Limerick Generating 

Station, Units 1 & 2), ALAB-806, 21 NRC 1183, 1191 (1985). 

Where good cause for a late filing is demonstrated, the other factors are given 

lesser weight. Consumers Power Co. (Midland Plant, Units 1 & 2), LBP-82-63, 

16 NRC 571, 589 (1982); Texas Utilities Generating Co. (Comanche Peak Steam 

Electric Station, Units 1 & 2), LBP-83-75A, 18 NRC 1260, 1261 (1983); 

Consumers Power Co. (Midland Plant, Units 1 & 2), LBP-84-20, 19 NRC 1285, 

1292 (1984). 

Relative to the other late-filing factors, in the absence of good cause there must 

be a compelling showing on the remaining elements, of which factors five and six 

– availability of other means to protect the petitioner’s interest and extent of 

representation of petitioner’s interests by other parties – are to be given less 

weight than factors eight and seven– assistance in developing a strong record 

and broadening the issues/delaying the proceeding. Private Fuel Storage, L.L.C.

(Independent Spent Fuel Storage Installation), LBP-01-13, 53 NRC 319, 324 

(2001). 

Where good cause for failure to file on time has not been demonstrated, a 

contention may still be accepted, but the burden of justifying acceptance of a late 

contention on the basis of the other factors is considerably greater. Even where 

the factors are balanced in favor of admitting a late-filed contention, a tardy 

petitioner without a good excuse for lateness may be required to take the 

proceeding as he finds it. Houston Lighting & Power Co. (South Texas Project, 

Units 1 & 2), LBP-82-91, 16 NRC 1364, 1367-68 (1982), citing Nuclear Fuel 

Services. Inc. and N.Y.S. Atomic and Space Development Authority (West Valley 

Reprocessing Plant), CLI-75-4, 1 NRC 273, 275, 276 (1975). 

2.10.5.5.2 Factor #2 – Nature of the Requestor’s/Petitioner’s Right Under 

the Act To Be Made a Party to the Proceeding 

(RESERVED) 

2.10.5.5.3 Factor #3 – Nature and Extent of the Requestor’s/Petitioner’s 

Property, Financial or Other Interest in the Proceeding 

(RESERVED) 

2.10.5.5.4 Factor #4 – Possible Effect of Any Order that May Be Entered in 

the Proceeding on the Requestor’s/Petitioner’s Interest 

(RESERVED) 

PREHEARING MATTERS 128 JUNE 2011
2.10.5.5.5 Factor #5 – Other Means Available to Protect the Petitioner’s 

Interests 

With respect to the [fifth] factor of 10 C.F.R. § 2. 309(c)(1) (availability of other 

means of protecting late petitioners’ interest) and the [sixth] factor (the extent 

to which late petitioners’ interest will be represented by existing parties), the 

applicants in Zimmer, supra, 10 NRC at 215, claimed that the Staff would 

represent the public interest and by inference, late petitioners’ interest as well. 

The Licensing Board ruled that although the Staff clearly represents the public 

interest, it cannot be expected to pursue all issues with the same diligence as 

an intervenor would pursue its own issue. Moreover, unless an issue was 

raised in a proceeding, the Staff would not attempt to resolve the issue in an 

adjudicatory context. Applicants’ reliance on the Staff review gave inadequate 

consideration to the value of a party’s pursuing the participational rights 

afforded it in an adjudicatory hearing. Comcommato Gas and Electric Co. 

(William H. Zimmer Nuclear Station), LBP-79-22, 10 NRC 213, 215 (1979); 

Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), 

LBP-83-80, 18 NRC 1404, 1407-1408 (1983); Houston Lighting and Power 

Co. (South Texas Project, Units 1 & 2), LBP-85-9, 21 NRC 524, 527-528 

(1985); Commonwealth Edison Co. (Braidwood Nuclear Power Station, 

Units 1 & 2), LBP-85-11, 21 NRC 609, 629 (1985), rev’d and remanded on 

other grounds, CLI-86-8, 23 NRC 241 (1986). See Houston Lighting and 

Power Co. (South Texas Project, Units 1 & 2), ALAB-799, 21 NRC 360, 384 

n.108 (1985); Washington Public Power Supply System (WPPSS Nuclear 

Project No. 3), ALAB-747, 18 NRC 1167, 1173-77 (1983); Carolina Power and 

Light Co. and North Carolina Eastern Municipal Power Agency

(Shearon Harris Nuclear Plant), LBP-85-49, 22 NRC 899, 914 (1985). 

When considering the [fifth] factor of 10 C.F.R. §2.309(c)(1), the availability of 

other means to protect an intervenor’s interests, a Board may only inquire 

whether there are other forums in which the intervenor itself might protect its 

interests. Houston Lighting and Power Co. (South Texas Project, Units 1 & 2), 

LBP-85-9, 21 NRC 524, 528 (1985), citing Houston Lighting and Power Co.

(Allens Creek Nuclear Generating Station, Unit 1), ALAB-671, 15 NRC 508, 

513 n.13 (1982). 

In determining what other means are available to protect a petitioner’s 

interest, a Board will consider the issues sought to be raised, the relief 

requested, and the stage of the proceeding. There may well be no alternative 

to providing a petitioner with an opportunity to participate in an adjudicatory 

hearing. However, in some circumstances, such as where the proposed 

contention deals with routinely filed post licensing reports by an applicant, a 

10 C.F.R. 2.206 petition may be sufficient to protect the petitioner’s interests. 

Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), 

ALAB-828, 23 NRC 13, 21-22 (1986). 

Late contentions filed by a city did not overlap a contention of another 

intervenor which had already been accepted in the proceeding. The 

representative of a private party cannot be expected to represent adequately 

the presumably broader interests represented by a governmental body. 

JUNE 2011 PREHEARING MATTERS 129
Zimmer, supra, 10 NRC at 216 n.4, citing Nuclear Fuel Services, Inc. (West 

Valley Reprocessing Plant), CLI-75-4, 1 NRC 273, 275 (1975). 

When there are no other available means to protect a petitioner’s interests, 

that factor and the factor of the extent to which other parties would protect that 

interest are entitled to less weight than the other factors enumerated in 

10 C.F.R. § 2.309(c) (formerly § 2.714(a)). Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), LBP-83-42, 18 NRC 112, 118 

(1983); Houston Lighting and Power Co. (South Texas Project, Units 1 & 2), 

LBP-85-9, 21 NRC 524, 528 (1985), citing South Carolina Electric and Gas 

Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881, 895 

(1981); Commonwealth Edison Co. (Braidwood Nuclear Power Station, 

Units 1 & 2), LBP-85-11, 21 NRC 609, 629 (1985), rev’d and remanded on 

other grounds, CLI-86-8, 23 NRC 241, 245 (1986); Public Service Co. of New 

Hampshire (Seabrook Station, Units 1 & 2), LBP-87-3, 25 NRC 71, 75 (1987); 

Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), 

LBP-89-4, 29 NRC 62, 70 (1989), aff’d, ALAB-918, 29 NRC 473 (1989), 

remanded, Massachusetts v. NRC, 924 F.2d 311, 333-337 (D.C. Cir. 1991), 

appeal dismissed as moot, ALAB-946, 33 NRC 245 (1991); Public Service Co. 

of New Hampshire (Seabrook Station, Units 1 & 2), LBP-90-1, 31 NRC 19, 34 

(1990), aff’d on other grounds, ALAB-936, 32 NRC 75 (1990); Private Fuel 

Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-00-8, 

51 NRC 146, 154 (2000). 

2.10.5.5.6 Factor #6 – Extent Petitioner’s Interests Are Represented by 

Existing Parties 

A petitioner who otherwise has standing can put forth any contention that 

would entitle that petitioner to the relief it seeks, see Yankee Atomic Electric 

Co. (Yankee Nuclear Power Station), CLI-96-1, 43 NRC 1, 6 (1996). 

Therefore, in deciding whether to admit a late-filed contention the petitioner 

otherwise would be entitled to litigate, the fact that the petitioner’s contentions 

focus primarily on matters that will protect the interests of others does not 

mean the petitioner’s “interest” should be afforded short shrift in assessing the 

late-filing factors of whether other means or other parties will protect the 

petitioner’s interests. Yankee Atomic Electric Co. (Yankee Nuclear Power 

Station), LBP-96-15, 44 NRC 8, 30 (1996). 

A petitioner’s interest can adequately be protected or represented by another 

party where petitioner’s interest as a co-owner of a nuclear facility are, by 

petitioner’s own description, identical to those of a party that is also a 

co-owner. North Atlantic Energy Service Corp. (Seabrook Station, Unit 1), 

CLI-99-6, 49 NRC 201, 223 (1999). 

In analyzing the [sixth] factor for admitting a late-filed contention, the extent to 

which a petitioner’s interest will be represented by existing parties, the 

analysis will favor the petitioner where there are no other parties involved in 

the proceeding that could represent the petitioner’s interests. Dominion 

Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 3), LBP-02-5, 

55 NRC 131, 141 (2002). 

PREHEARING MATTERS 130 JUNE 2011
2.10.5.5.7 Factor #7 – Extent Participation Will Broaden Issues or Delay the 

Proceeding 

The [seventh] factor for admission of a late-filed contention requires a Board 

to determine whether the proceeding, and not the issuance of a license or the 

operation of a plant, will be delayed. Philadelphia Electric Co. (Limerick 

Generating Station, Units 1 & 2), ALAB-828, 23 NRC 13, 23 (1986); Yankee 

Atomic Electric Co. (Yankee Nuclear Power Station), LBP-96-15, 44 NRC 8, 

29-30 (1996). In addition the [seventh] criterion – broadening the 

issues/delaying the proceeding – clearly does not weigh in favor of admission 

when the contentions otherwise would not be part of the proceeding because 

of the sponsoring intervenor’s withdrawal. Private Fuel Storage, L.L.C., 

LBP-99-6, 49 NRC 114, 119 (1999). 

The admission of any new contention may broaden and delay the completion 

of a proceeding by increasing the number of issues which must be 

considered. A Board may consider the following factors which may minimize 

the impact of the new contention: how close to the scheduled hearing date 

the new contention was filed; and the extent of discovery which had been 

completed prior to the filing of the new contention. A Board will not admit a 

new contention which is filed so close to the scheduled hearing date that the 

parties would be denied an adequate opportunity to pursue discovery on the 

contention. Commonwealth Edison Co. (Braidwood Nuclear Power Station, 

Units 1 & 2), LBP-85-11, 21 NRC 609, 630-631 (1985), rev’d and remanded 

on other grounds, CLI-86-8, 23 NRC 241 (1986), citing South Carolina Electric 

and Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-642, 

13 NRC 881, 889 (1981). 

In evaluating the extent to which admission of a late-filed contention would 

delay the proceeding, a Board must determine whether, by filing late, the 

intervenor has occasioned a potential for delay in the completion of the 

proceeding that would not have been present had the filing been timely. 

Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 1), 

ALAB-868, 25 NRC 912, 927 (1987). 

A Board may refuse to admit a late-filed contention where it determines that 

the contention is so rambling and disorganized that any attempt to litigate the 

contention would unduly broaden the issues and delay the proceeding. Texas 

Utilities Generating Co. (Comanche Peak Steam Electric Station, Units 1 & 2), 

LBP-83-75A, 18 NRC 1260, 1262-1263 (1983). 

In evaluating the potential for delay, it is improper for the Board to balance the 

significance of the late-filed contention against the likelihood of delay. Such a 

balancing of factors is made in the overall evaluation of all the criteria for the 

admission of a late-filed contention. Commonwealth Edison Co. (Braidwood 

Nuclear Power Station, Units 1 & 2), CLI-86-8, 23 NRC 241, 248 (1986). 

An intervenor’s voluntary withdrawal of other, unrelated contentions may not 

be used to counterbalance any delays which might be caused by the 

admission of a late-filed contention. Commonwealth Edison Co. (Braidwood 

Nuclear Power Station, Units 1 & 2), CLI-86-8, 23 NRC 241, 248 (1986). 

JUNE 2011 PREHEARING MATTERS 131
Where the delay in filing contentions is great and the issues are serious, the 

seriousness of an issue does not imply that the party raising it is somehow 

forever exempted from the Rules of Practice. Cincinnati Gas and Electric Co.

(William H. Zimmer Nuclear Power Station, Unit 1), LBP-83-58, 18 NRC 640, 

663 (1983). 

2.10.5.5.8 Factor #8 – Ability of Petitioner to Assist in Developing Record 

Ability to contribute to the record is relevant to the admissibility of late-filed 

contentions. Houston Lighting and Power Co. (South Texas Project, Units 1 

& 2), LBP-83-37, 18 NRC 52, 56 n.5 (1983). An intervenor should specify the 

precise issues it plans to cover, identify its prospective witnesses, and 

summarize their proposed testimony. Commonwealth Edison Co. (Braidwood 

Nuclear Power Station, Units 1 & 2), CLI-86-8, 23 NRC 241, 246 (1986), citing

Mississippi Power and Light Co. (Grand Gulf Nuclear Station, Units 1 & 2), 

ALAB-704, 16 NRC 1725, 1730 (1982); Public Service Co. of New Hampshire

(Seabrook Station, Units 1 & 2), LBP-87-3, 25 NRC 71, 75 (1987); Public 

Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), LBP-89-4, 

29 NRC 62, 70 (1989), aff’d, ALAB-918, 29 NRC 473 (1989), remanded, 

Massachusetts v . NRC, 924 F.2d 311, 333-337 (D.C. Cir. 1991), appeal 

dismissed as moot, ALAB-946, 33 NRC 245 (1991). An intervenor must 

demonstrate special expertise concerning the subjects which it seeks to raise. 

Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), 

LBP-90-1, 31 NRC 19, 35-36 (1990), aff’d on other grounds, ALAB-936, 

32 NRC 75 (1990). An intervenor need not present expert witnesses or 

indicate what testimony it plans to present if it has established its ability to 

contribute to the development of a sound record in other ways. Cleveland 

Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), LBP-83-80, 

18 NRC 1404, 1408 n.14 (1983). See also Washington Public Power Supply 

System (WPPSS Nuclear Project No. 3), ALAB-747, 18 NRC 1167, 

1182-1183 (1983). 

With regard to late-filing factor [eight] – assistance in developing a sound 

record – when legal issues are a focal point of a late-filed contention, the need 

for an extensive showing regarding witnesses and testimony may be less 

compelling. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage 

Installation), LBP-99-7, 49 NRC 124, 129 (1999). 

Nevertheless, an intervenor should provide specific information from which a 

Board can infer that the intervenor will contribute to the development of a 

sound record on the particular issue in question. An intervenor’s bare 

assertion of past effectiveness in contributing to the development of a sound 

record on other issues in the current proceeding and in past proceedings is 

insufficient. Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), 

ALAB-813, 22 NRC 59, 85 (1985), citing WPPSS, supra, 18 NRC at 1181, and 

Mississippi Power and Light Co. (Grand Gulf Nuclear Station, Units 1 & 2), 

ALAB-704, 16 NRC 1725, 1730 (1982). See Vermont Yankee Nuclear Power 

Corp. (Vermont Yankee Nuclear Power Station), ALAB-919, 30 NRC 29, 

40-41 (1989), vacated in part on other grounds and remanded, CLI-90-4, 

31 NRC 333 (1990), request for clarification, ALAB-938, 32 NRC 154 (1990), 

clarified, CLI-90-7, 32 NRC 129 (1990). 

PREHEARING MATTERS 132 JUNE 2011
In assessing the “late-filing” factor of assistance in developing a sound record, 

the need to conduct discovery no doubt may excuse a lack of specificity about 

potential witnesses’ testimony in those nontechnical cases where any 

testimonial evidence likely will come from licensee employees or contractors. 

See Texas Utilities Generating Co. (Comanche Peak Steam Electric Station, 

Unit 1), ALAB-868, 25 NRC at 925-26. Yankee Atomic Electric Co. (Yankee 

Nuclear Power Station), LBP-96-15, 44 NRC 8, 28-29 (1996). 

In analyzing the [eighth] criterion for admitting a late-filed contention, if an 

intervenor has previously provided assistance earlier in a proceeding, there is 

a presumption weighing in favor of the petitioner that the petitioner’s 

participation can reasonably be expected to once again assist in developing a 

sound record. Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power 

Station, Unit 3), LBP-02-5, 55 NRC 131, 140-141 (2002). 

In determining an intervenor’s ability to assist in the development of a sound 

record, it is erroneous to consider the performance of counsel in a different 

proceeding. Commonwealth Edison Co. (Braidwood Nuclear Power Station, 

Units 1 & 2), CLI-86-8, 23 NRC 241, 246-47 (1986). Contra Texas Utilities 

Electric Co. (Comanche Peak Steam Electric Station, Unit 1), ALAB-868, 

25 NRC 912, 926-27 (1987). 

The extent to which the petitioner’s participation may reasonably be expected 

to assist in developing a sound record is only meaningful when the proposed 

participation is on a significant, triable issue. Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), LBP-84-30, 20 NRC 426, 440 

(1984). 

The extent to which an intervenor may reasonably be expected to assist in 

developing a sound record is the most significant of the factors to be balanced 

with respect to late-filed contentions, at least in situations where litigation of 

the contention will not delay the proceeding. Houston Lighting and Power Co.

(South Texas Project, Units 1 & 2), LBP-85-9, 21 NRC 524, 528 (1985). 

2.10.5.6 Contentions Challenging Regulations 

Contentions challenging the validity of NRC regulations are inadmissible under the 

provisions of 10 C.F.R. § 2.335 (formerly § 2.758). Commonwealth Edison Co.

(Byron Nuclear Power Station, Units 1 & 2), LBP-80-30, 12 NRC 683, 692-93 

(1980); Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit 1), 

ALAB-784, 20 NRC 845, 846 (1984); Carolina Power and Light Co. and North 

Carolina Eastern Municipal Power Agency (Shearon Harris Nuclear Power Plant), 

ALAB-837, 23 NRC 525, 544 (1986). See Long Island Lighting Co. (Shoreham 

Nuclear Power Station, Unit 1), LBP-89-1, 29 NRC 5, 18 (1989); Arizona Public 

Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2 & 3), LBP-91-19, 33 

NRC 397, 410 (1991), appeal denied, CLI-91-12, 34 NRC 149, 156 (1991) 

(petitioner may not attack the testing methodology specified in a regulation, but may 

attack new proposed performance requirements); Private Fuel Storage, L.L.C.

(Independent Spent Fuel Storage Installation), LBP-98-29, 48 NRC 286, 296 (1998). 

Northeast Nuclear Energy Co. (Millstone Nuclear Power Stations, Units 2 & 3), LBP01-10, 53 NRC 273, 286 (2001). 

JUNE 2011 PREHEARING MATTERS 133
The assertion of a claim in an adjudicatory proceeding that a regulation is invalid is 

barred as a matter of law. Metropolitan Edison Co. (Three Mile Island Nuclear 

Station, Unit 2), ALAB-456, 7 NRC 63, 65 (1978). 

Under 10 C.F.R. § 2.335 (formerly § 2.758), the Commission has withheld 

jurisdiction from Licensing Boards to entertain attacks on the validity of Commission 

regulations in individual licensing proceedings except in certain “special 

circumstances.” Potomac Electric Power Co. (Douglas Point Nuclear Generating 

Station, Units 1 & 2), ALAB-218, 8 AEC 79, 88-89 (1974); Cleveland Electric 

Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), LBP-85-33, 22 NRC 442, 

444 (1985). 10 C.F.R. § 2.335 (formerly § 2.758) sets out those special 

circumstances which an intervenor must show to be applicable before a contention 

attacking the regulations will be admissible. Further, 10 C.F.R. § 2.335 (formerly 

§ 2.758) provides for certification to the Commission of the question of whether a 

rule or regulation of the Commission should be waived in a particular adjudicatory 

proceeding where an adjudicatory board determines that, as a result of special 

circumstances, a prima facie showing has been made that application of the rule in 

a particular way would not serve the purposes for which the rule was adopted and, 

accordingly, that a waiver should be authorized. Detroit Edison Co. (Enrico Fermi 

Atomic Power Plant, Unit 2), LBP-78-37, 8 NRC 575, 584-585 (1978); Carolina 

Power and Light Co. and North Carolina Eastern Municipal Power Agency (Shearon 

Harris Nuclear Power Plant), ALAB-837, 23 NRC 525, 546 (1986). 

Intervenors are authorized to file a petition for a waiver of a rule, pursuant to 

10 C.F.R. § 2.335 (formerly § 2.758). It is not, however, enough merely to allege 

the existence of special circumstances; such circumstances must be set forth with 

particularity. The petition should be supported by proof, in affidavit or other 

appropriate form, sufficient for the Licensing Board to determine whether the 

petitioning party has made a prima facie showing for waiver. Carolina Power & 

Light Co. & N.C. E. Mun. Power Agency (Shearon Harris Nuclear Power Plant, 

Units 1 & 2), LBP-82-119A, 16 NRC 2069, 2073 (1982); see also U.S. Dep’t of 

Energy (High-Level Waste), CLI-10-10, 71 NRC __ (Mar. 11, 2010) (slip op. at 4-5) 

(denial of a petition that failed to include an affidavit and failed to show that 

application of the rule would not serve the purpose for which it was adopted). 

A petitioner in an individual adjudication cannot challenge generic decisions made 

by the Commission in rulemakings. Thus, general attacks on the agency’s 

competence and regulations are not admissible issues in license transfer 

proceedings. Vermont Yankee Nuclear Power Corp., et. al. (Vermont Yankee 

Nuclear Power Station), CLI-00-20, 52 NRC 151, 165-166 (2000). See also North 

Atlantic Energy Service Corp. (Seabrook Station, Unit 1), CLI-99-6, 49 NRC 201, 

217 (1999). 

A contention presents an impermissible challenge to the Commission’s regulations 

by seeking to impose requirements in addition to those set forth in the regulations. 

See Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-87-12, 

26 NRC at 395; Public Service Co. of New Hampshire (Seabrook Station, Units 1 

& 2), LBP-82-106, 16 NRC 1649, 1656 (1982); Florida Power & Light Co. (Turkey 

Point Nuclear Generating Plant, Units 3 & 4), LBP-01-6, 53 NRC 138, 159 (2001). 

PREHEARING MATTERS 134 JUNE 2011
Although Commission regulations may permit a Board in some situations to approve 

minor adjustments to Commission-prescribed standards, a Board will reject as 

inadmissible a contention which seeks major changes to those standards. Long 

Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-832, 

23 NRC 135, 147-48 (1986) (intervenors sought major expansion of the emergency 

planning zone), rev’d in part, CLI-87-12, 26 NRC 383, 395 (1987) (the Appeal Board 

incorrectly admitted contentions which involved more than just minor adjustments to 

the emergency planning zone). See also Philadelphia Electric Co. (Limerick 

Generating Station, Units 1 & 2), ALAB-836, 23 NRC 479, 507 n.48 (1986). 

When a Commission regulation permits the use of a particular analysis or technique, 

a contention which asserts that a different analysis or technique should be utilized is 

inadmissible because it attacks the Commission’s regulations. Metropolitan Edison 

Co. (Three Mile Island Nuclear Station, Unit No. 1), LBP-83-76, 18 NRC 1266, 1273 

(1983). 

A contention must be rejected where: it constitutes an attack on applicable statutory 

requirements; it challenges the basic structure of the Commission’s regulatory 

process or is an attack on the regulations; it is nothing more than a generalization 

regarding the intervenor’s views of what applicable policies ought to be; it seeks to 

raise an issue which is not proper for adjudication in the proceeding; or it does not 

apply to the facility in question; or it seeks to raise an issue which is not concrete or 

litigable. Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), 

LBP-82-76, 16 NRC 1029, 1035 (1982), citing Philadelphia Electric Co. (Peach 

Bottom Atomic Power Station, Units 2 & 3), ALAB-216, 8 AEC 13, 20-21 (1974); 

Texas Utilities Generating Co. (Comanche Peak Steam Electric Station, Units 1 

& 2), LBP-83-75A, 18 NRC 1260, 1263 (1983); Metropolitan Edison Co. (Three Mile 

Island Nuclear Station, Unit No. 1), LBP-83-76, 18 NRC 1266, 1268-1269 (1983); 

Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), 

LBP-98-13, 47 NRC 360, 365 (1998); Florida Power & Light Co. (Turkey Point 

Nuclear Generating Plant, Units 3 & 4), LBP-01-6, 53 NRC 138, 151 (2001). 

That orders impose requirements in addition to those imposed by the regulations 

does not create a genuine dispute as to whether compliance with the regulations 

fails to comport with the “no undue risk” standard in 42 U.S.C. § 2077 (Section 57 of 

the AEA). As a general matter, compliance with applicable NRC regulations 

ensures that public health and safety are adequately protected in areas covered by 

the regulations. Duke Energy Corp. (Catawba Nuclear Station, Units 1 & 2), 

CLI-04-19, 60 NRC 5 at 9, 12 (2004). 

2.10.5.7 Contentions Involving Generic Issues/Subject of Rulemaking 

Before a contention presenting a generic issue can be admitted, the intervenor must 

demonstrate a specific nexus between each contention and the facility that is the 

subject of the proceeding. Cleveland Electric Illuminating Co. (Perry Nuclear Power 

Plant, Units 1 & 2), LBP-82-15, 15 NRC 555, 558-59 (1982); Pacific Gas and 

Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), LBP-87-24, 

26 NRC 159, 165 (1987), aff’d on other grounds, ALAB-880, 26 NRC 449, 456-57 

n.7 (1987), remanded on other grounds, Sierra Club v. NRC, 862 F.2d 222 

(9th Cir. 1988). 

JUNE 2011 PREHEARING MATTERS 135
Licensing Boards should not accept in individual licensing cases any contentions 

which are or are about to become the subject of general rulemaking. Sacramento 

Municipal Utility District (Rancho Seco Nuclear Generating Station), ALAB-655, 

14 NRC 799, 816 (1981); Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), 

ALAB-813, 22 NRC 59, 86 (1985); Duke Energy Corp. (Oconee Nuclear Station, 

Units 1, 2, & 3), CLI-99-11, 49 NRC 328, 345. They appear to be permitted to 

accept “generic issues” which are not about to become the subject of rulemaking, 

however. Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, 

Units 1 & 2), ALAB-218, 8 AEC 79 (1974). See Metropolitan Edison Co. (Three Mile 

Island Nuclear Station, Unit 1), LBP-83-76, 18 NRC 1266, 1271 (1983). In order for 

a party or interested state to introduce such an issue into a proceeding, it must do 

more than present a list of generic technical issues being studied by the Staff or 

point to newly issued regulatory guides on a subject. There must be a nexus 

established between the generic issue and the particular permit or application in 

question. To establish such a nexus, it must be shown that (1) the generic issue 

has safety significance for the particular reactor under review, and (2) the fashion in 

which the application deals with the matter is unsatisfactory or the short term 

solution offered to the problem under study is inadequate. Gulf States Utilities Co.

(River Bend Station, Units 1 & 2), ALAB-444, 6 NRC 760, 773 (1977); Illinois Power 

Co. (Clinton Power Station, Unit No. 1), LBP-82-103, 16 NRC 1603, 1608 (1982), 

citing River Bend, supra, 6 NRC at 773; Public Service Co. of New Hampshire

(Seabrook Station, Units 1 & 2), LBP-82-106, 16 NRC 1649, 1657 (1982); 

Duquesne Light Co. (Beaver Valley Power Station, Unit 2), LBP-84-6, 19 NRC 393, 

418, 420 (1984), citing River Bend, supra, 6 NRC at 773, and Virginia Electric and 

Power Co. (North Anna Nuclear Power Station, Units 1 & 2), ALAB-491, NRC 245, 

248 (1978). 

Contentions challenging NRC regulations or determinations made by the NRC 

during the rulemaking process are inadmissible. Private Fuel Storage, L.L.C.

(Independent Spent Fuel Storage Installation), CLI-04-4, 59 NRC 31, 38-39 (2004); 

see also, Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, 

Inc. (Vermont Yankee Nuclear Power Station) and Entergy Nuclear Generation 

Company and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), 

CLI-07-3, 65 NRC 13, 19-21 (2007), reconsid. denied, Entergy Nuclear Vermont 

Yankee, LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear 

Power Station) and Entergy Nuclear Generation Company and Entergy Nuclear 

Operations, Inc. (Pilgrim Nuclear Power Station), CLI-07-13, 65 NRC 211 (2007). 

While a Licensing Board should not accept contentions that are or are about to 

become the subject of general rulemaking, where a contention has long since been 

admitted and is still pending when notice of rulemaking is published, the intent of the 

Commission determines whether litigation of that contention should be undertaken. 

Texas Utilities Generating Co. (Comanche Peak Steam Electric Station, Units 1 

& 2), LBP-81-51, 14 NRC 896, 898 (1981), citing Potomac Electric Power Co.

(Douglas Point Nuclear Generating Station, Units 1 & 2), ALAB-218, 8 AEC 79 

(1974). 

Where the Commission has explicitly barred Board consideration of the subject of a 

contention on which rulemaking is pending, the Board may not exercise jurisdiction 

over the contention. Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, 

Units 1 & 2), LBP-82-11, 15 NRC 348, 350 (1982). Where the Commission has held 

PREHEARING MATTERS 136 JUNE 2011
its own decision whether to review an Appeal Board opinion in abeyance pending its 

decision whether or not to initiate a further rulemaking, and has instructed the 

Licensing Boards to defer consideration of the issue, a contention involving the 

issue is unlitigable and inadmissible. Duquesne Light Co. (Beaver Valley Power 

Station, Unit 2), LBP-84-6, 19 NRC 393, 417-18 (1984), citing Potomac Electric 

Power Co. (Douglas Point Nuclear Generating Station, Units 1 & 2), ALAB-218, 

8 AEC 79 (1974). 

A brief suspension of consideration of a contention will not be continued when it no 

longer appears likely that the Commission is about to issue a proposed rule on the 

matter which was the subject of the contention. Cleveland Electric Illuminating Co.

(Perry Nuclear Power Plant, Units 1 & 2), LBP-81-42, 14 NRC 842, 846-847 (1981). 

Parties interested in litigating unresolved safety issues must do something more 

than simply offer a checklist of unresolved issues; they must show that the issues 

have some specific safety significance for the reactor in question and that the 

application fails to resolve the matters satisfactorily. Metropolitan Edison Co. (Three 

Mile Island Nuclear Station, Unit 1), ALAB-729, 17 NRC 814, 889 (1983), aff’d on 

other grounds, CLI-84-11, 20 NRC 1 (1984), citing Gulf States Utilities Co. (River 

Bend Station, Units 1 & 2), ALAB-444, 6 NRC 760, 772-73 (1977). 

Contentions which constitute a general attack upon the methods used by the NRC 

Staff to insure compliance with regulations, without raising any issues specifically 

related to matters under construction, are not appropriate for resolution in a 

particular licensing proceeding. Commonwealth Edison Co. (Byron Nuclear Power 

Station, Units 1 & 2), LBP-80-30, 12 NRC 683, 690 (1980). 

In Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), 

LBP-82-1A, 15 NRC 43 (1982), the Licensing Board rejected the applicant’s 

contention that Douglas Point, supra, requires dismissal whenever there is pending 

rulemaking on a subject at issue. The Board distinguished Douglas Point on several 

grounds: (1) In Douglas Point, there were no existing regulations on the subject, 

while in Perry, regulations do exist and continue in force regardless of proposed 

rulemaking; (2) The issue in Perry – whether Perry should have an automated 

standby liquid control system (SLCS) given the plant’s specific characteristics – is 

far more specific than the issues in Douglas Point (i.e., nuclear waste disposal 

issues); (3) The proposed rules recommend a variety of approaches on the SLCS 

issue requiring analysis of the plant’s situation, so any efforts by the Board to 

resolve the issue would contribute to the analysis; (4) The Commission did not bar 

consideration of such issues during the pendency of its proposed rulemaking, as it 

could have. Unless the Commission has specifically directed that contentions be 

dismissed during pendency of proposed rulemaking, no such dismissal is required. 

In order to posit a contention that requires the analysis of an action violating a 

specific technical specification, a petitioner would have to make some particularized 

demonstration that there is a reasonable basis to believe that the applicant will act 

contrary to the terms of such a requirement. See General Public Utilities Nuclear 

Corp. (Oyster Creek Nuclear Generating Station), LBP-96-23, 44 NRC 143, 164 

(1996); Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant), 

LBP-99-25, 50 NRC 25, 34 (1999). 

JUNE 2011 PREHEARING MATTERS 137
2.10.5.8 Contentions Challenging Absent or Incomplete Documents 

Section 2.309(f)(2) (formerly Section 2.714(b)(2)(iii)) requires that a petitioner file its 

initial contentions based on an applicant’s environmental report. A petitioner can 

“amend those contentions or file new contentions if there are data or conclusions in 

the NRC draft or final environmental impact statement...or any supplements relating 

thereto, that differ significantly from the data or conclusions in the applicant’s 

document.” Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage 

Installation), CLI-00-21, 52 NRC 261, 264 n.6 (2000), citing Louisiana Energy 

Services, L.P. (Claiborne Enrichment Center), CLI-97-2, 45 NRC 3, 4 (1997); 

Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-05-20, 

62 NRC 523, 526, 533 (2005); Sacramento Municipal Utility District (Rancho Seco 

Nuclear Generating Station), LBP-93-23, 38 NRC 200, 251 (1993). 

At the contention formulation stage of the proceeding, an intervenor may plead the 

absence or inadequacy of documents or responses which have not yet been made 

available to the parties. The contention may be admitted subject to later refinement 

and specification when the additional information has been furnished or the relevant 

documents have been filed. Commonwealth Edison Co. (Byron Nuclear Power 

Station, Units 1 & 2), LBP-80-30, 12 NRC 683 (1980). Note, however, that the 

absence of licensing documents does not justify admission of contentions which do 

not meet the basis and specificity requirements of 10 C.F.R. § 2.309. That is, a 

nonspecific contention may not be admitted, subject to later specification, even 

though licensing documents that would provide the basis for a specific contention 

are unavailable. Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), 

ALAB-687, 16 NRC 460 (1982), vacated in part on other grounds, CLI-83-19, 

17 NRC 1041 (1983). Where there is no local public document room in an area 

near a facility, and where a petitioner for intervention unsuccessfully seeks 

information from a local NRC office, a Licensing Board may judge the adequacy of a 

proposed contention on the basis of available information. Georgia Institute of 

Technology (Georgia Tech Research Reactor, Atlanta, Ga.), LBP-95-6, 

41 NRC 281, 297-98 (1995). 

Rulings on contentions concerning undeveloped portions of emergency plans may 

be deferred. To admit such contentions would be to risk unnecessary litigation. But 

to deny the contentions would unfairly ignore the insufficient development of these 

portions. Fairness and efficiency seem to dictate that rulings on such contentions 

be deferred. The objectives of such deferrals are to encourage negotiation, to avoid 

unnecessary litigation, and to make necessary litigation as focused as possible. 

Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), LBP-84-18, 

19 NRC 1020, 1028 (1984). Cf. Cincinnati Gas and Electric Co. (Wm. H. Zimmer 

Nuclear Power Station, Unit 1), ALAB-727, 17 NRC 760, 775-76 (1983). 

When information is not available, there will be good cause for filing a contention 

based on that information promptly after the information becomes available. 

However, the [eight] late-filing factors must be balanced in determining whether to 

admit such a contention filed after the initial period for submitting contentions. 

Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), LBP-83-39, 

18 NRC 67, 69 (1983); Philadelphia Electric Co. (Limerick Generating Station, 

Units 1 & 2), ALAB-806, 21 NRC 1183, 1190 (1985). 

PREHEARING MATTERS 138 JUNE 2011
The admission of a contention does not require anticipation of the contents of a 

document that has not been filed. A contention may address any current deficiency 

of the application, providing the contention is specific. Perry, supra, 

16 NRC at 1469. 

Should the subsequent issuance of the SER lead to a change in the FSAR and 

thereby modify or moot a contention based on that document, that contention can 

be amended or promptly disposed of by summary disposition or a stipulation. 

However, the possibility that such a circumstance could occur does not provide a 

reasonable basis for deferring the filing of safety-related contentions until the Staff 

issues its SER. Catawba, supra, 17 NRC at 1049. 

NRC has the burden of complying with NEPA. The adequacy of the NRC’s 

environmental review as reflected in the adequacy of a DEIS or FEIS is an 

appropriate issue for litigation in a licensing proceeding. Because the adequacy of 

those documents cannot be determined before they are prepared, contentions 

regarding their adequacy cannot be expected to be proffered at an earlier stage of 

the proceeding before the documents are available. That does not mean that no 

environmental contentions can be formulated before the Staff issues a DEIS or 

FEIS. While all environmental contentions may, in a general sense, ultimately be 

challenges to the NRC’s compliance with NEPA, factual aspects of particular issues 

can be raised before the DEIS is prepared. Just as the submission of a safetyrelated contention based on the FSAR is not to be deferred simply because the Staff 

may later issue an SER requiring a change in a safety matter, so too, the 

Commission expects that the filing of an environmental concern based on the 

applicant’s environmental report will not be deferred simply because the Staff may 

subsequently provide a different analysis in its DEIS. Duke Power Co. (Catawba 

Nuclear Station, Units 1 & 2), CLI-83-19, 17 NRC 1041, 1049 (1983). See

10 C.F.R. § 2.309(f)(2) (formerly § 2.714(b)(2)(iii)), 54 Fed. Reg. 33,168, 33,180 

(Aug. 11, 1989), as corrected, 54 Fed. Reg. 39,728 (Sept. 28, 1989). 

Contentions initially framed as challenges to the substance of the applicants’ 

environmental report analysis may not necessarily require a late-filed revision or 

substitution relative to the Staff’s DEIS or FEIS. Private Fuel Storage, L.L.C.

(Independent Spent Fuel Storage Installation), LBP-01-26, 54 NRC 199, 208 (2001). 

However, significant changes in the nature of the alleged NEPA imperfection, from 

one comprehensive information omission to an imperfection based on deficient 

analysis of the subsequent information provided by the Staff may warrant a late-filed 

revision or substitution. Private Fuel Storage, L.L.C. (Independent Fuel Storage 

Installation), LBP-01-26, 54 NRC 199, 208 (2001). 

Where a contention challenges the omission of particular information or an issue 

from an application, and the information is later supplied by the applicant or 

considered by the Staff in a DEIS, the contention is moot. Without requiring 

submission of a new or amended contention, the original “omission” contention 

could be transformed into a broad series of disparate claims. This approach would, 

in turn, circumvent NRC contention pleading standards and defeat the contention 

rule’s purposes: (1) providing notice to the opposing party of the issues that will be 

litigated; (2) ensuring that at least a minimal factual or legal foundation exists for the 

different claims that have been alleged; and (3) ensuring there exists an actual 

genuine dispute with the applicant on a material issue of law or fact. Duke Energy 

JUNE 2011 PREHEARING MATTERS 139
Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), 

CLI-02-28, 56 NRC 373, 383 (2002), clarifying CLI-02-17, 56 NRC 1 (2002). See 

also Duke Energy Corp. (Catawba Nuclear Station, Units 1 & 2), LBP-04-7, 

59 NRC 259, 263 (2004). Something obviously is different than nothing, so the 

availability of new information on an issue where there previously was none, fulfills 

the requirement that late contentions be based on “materially different information” 

in 10 C.F.R. § 2.309(f)(2)(ii). Entergy Nuclear Vermont Yankee, L.L.C. and Entergy 

Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-05-32, 

62 NRC 813, 820 (2005). 

It is well recognized that where a contention based on an applicant’s environmental 

report is superseded by the subsequent issuance of an EIS or a response to an RAI, 

the contention must be disposed of or modified. USEC, Inc. (American Centrifuge 

Plant), CLI-06-9, 63 NRC 433, 444 (2006). 

 

Generally, the plain language of a contention will reveal whether the contention is 

(1) a claim of omission, (2) a specific substantive challenge to an application, or 

(3) a combination of both. In some cases, it may be necessary to examine the 

language of the contention bases to determine the scope of the contention. In the 

first situation, where a contention alleges the omission of particular information or an 

issue from an application, and the information is supplied later by the applicant, the 

contention is moot. Amergen Energy Co., LLC (Oyster Creek Nuclear Generating 

Station), LBP-06-16, 63 NRC 737, 742 (2006); see also Southern Nuclear Operating 

Co. (Early Site Permit for Vogtle ESP Site), LBP-08-2, 67 NRC 54, 63-65 (2008) 

(examining the language of the bases of contention to determine if it is a contention 

of inadequacy or a contention of omission). 

Where a contention of omission that is the sole contention in the proceeding has 

been rendered moot and no other motions remain pending, an order dismissing the 

contention ordinarily would terminate the proceeding. However, the Commission 

has instructed that when a contention of omission has been rendered moot, the 

intervenor – if it wishes to raise specific challenges regarding the new information – 

may timely file a new contention that addresses the admissibility factors in 

10 C.F.R. 2.309(f)(1). Oyster Creek, LBP-06-16, 63 NRC at 744. 

A contention that alleges omission of a seismic and structural analysis becomes 

moot, and must be dismissed, when the applicant provides such an analysis. To 

challenge the substance of the applicant’s analysis, the intervenor must file a new or 

amended contention pursuant to 10 C.F.R. § 2.309(f)(2). Entergy Nuclear Vermont 

Yankee, L.L.C. and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear 

Power Plant), LBP-05-24, 62 NRC 429, 431-32 (2005). 

2.10.5.9 Contentions re Adequacy of Security Plan 

The adequacy of a nuclear facility’s physical security plan may be a proper subject 

for challenge by intervenors in an operating license proceeding. Pacific Gas and 

Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-80-24, 

11 NRC 775, 777 (1980); Consolidated Edison Co. (Indian Point Nuclear Generating 

Unit 2), CLI-74-23, 7 AEC 947, 949 (1974). The adequacy of an applicant’s physical 

security plan is also a permissible issue in an operating license renewal proceeding. 

PREHEARING MATTERS 140 JUNE 2011
Georgia Institute of Technology (Georgia Tech Research Reactor, Atlanta, Ga.), 

LBP-95-6, 41 NRC 281, 288 (1995). 

An intervenor may not introduce a contention which questions the adequacy of an 

applicant’s security plan “against the effects of (a) attacks and destructive acts, 

including sabotage, directed against the facility by an enemy of the United States, 

whether a foreign government or other person, or (b) use or deployment of weapons 

incident to U.S. defense activities.” Commonwealth Edison Co. (Braidwood Nuclear 

Power Station, Units 1 & 2), LBP-85-27, 22 NRC 126, 135-36, 138 (1985), citing

10 C.F.R. § 50.13. However, Section 50.13 does not preclude intervenors from 

challenging whether security systems satisfy governing security requirements set 

forth in 10 C.F.R. Part 73. Georgia Institute of Technology (Georgia Tech Research 

Reactor, Atlanta, Ga.), LBP-95-6, 41 NRC 281, 292 (1995). 

“Terrorism contentions, are by their very nature, directly related to security” are 

unrelated to the detrimental effects of aging and, therefore, are “beyond the scope 

of, not ‘material’ to, and inadmissible in, a license renewal proceeding.” AmerGen 

Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-07-8, 

65 NRC 124, 129 (2007) (quoting Duke Energy Corp. (McGuire Nuclear Station, 

Units 1 & 2; Catawba Nuclear Station, Units1 & 2), CLI-02-26, 56 NRC 358, 364 

(2002)); Nuclear Management Co., LLC (Palisades Nuclear Plant), CLI-07-9, 

65 NRC 139, 141-142 (2007). 

The Commission has held that NEPA does not require a terrorism review, and that 

an EIS is not the appropriate format in which to address the challenges of terrorism 

because the “environmental effect” caused by third-party miscreants is simply too 

far attenuated to find that the NRC’s action is the proximate cause of that impact. 

Pacific Gas & Electric Co. (Diablo Canyon Power Plant Independent Spent Fuel 

Storage Installation), CLI-03-1, 57 NRC 1, 6-7 (2003); see also System Energy 

Resources, Inc. (Early Site Permit for Grand Gulf ESP Site), CLI-07-10, 

65 NRC 144, 145-47 (2007); Progress Energy Carolinas, Inc. (Shearon Harris 

Nuclear Power Plant, Units 2 & 3), LBP-08-21, 68 NRC 554, 566-568 (2008). But, 

the Ninth Circuit has concluded that NEPA requires consideration of the 

environmental impacts of a terrorist attack. San Luis Obispo Mothers for Peace v. 

NRC, 449 F.3d 1016, 1028-35 (2006). However, in New Jersey Department of 

Environmental Protection v. United States Nuclear Regulatory Commission, the 

Third Circuit rejected the Ninth Circuit’s ruling that NEPA required environmental 

consideration of terrorism. New Jersey Department of Environmental Protection v. 

United States Nuclear Regulatory Commission; Amergen Energy Company, LLC, 

561 F.3d 132 (3rd Cir. 2009). The Commission has indicated that it will continue to 

follow its normal practice outside the Ninth Circuit. AmerGen Energy Co., LLC

(Oyster Creek Nuclear Generating Station), CLI-07-8, 65 NRC 124, 128-29 (2007). 

In the context of reactor license renewal, the NRC has already considered the 

environmental impacts of a hypothetical terrorist attack on a nuclear plant and found 

that these impacts would be no worse than those caused by internally initiated 

events. AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), 

CLI-07-8, 65 NRC 124, 129-132 (2007), aff’d sub nom., New Jersey Department of 

Environmental Protection v. United States Nuclear Regulatory Commission; 

Amergen Energy Company, LLC, 561 F.3d 132 (3rd Cir. 2009). 

JUNE 2011 PREHEARING MATTERS 141
A request for an exemption under 10 C.F.R. § 73.5 does not constitute a license 

amendment, so a hearing under Section 189 of the AEA is not required. 

Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 & 2), CLI-00-5, 

51 NRC 90, 96 (2000). 

Where an intervenor seeking to challenge an applicant’s security plan does not 

produce a qualified expert to review the plan and declines to submit to a protective 

order, its vague contentions must be dismissed for failure to meet conditions that 

could produce an acceptably specific contention. Duke Power Co. (Catawba 

Nuclear Station, Units 1 & 2), LBP-82-51, 16 NRC 167, 177 (1982); Private Fuel 

Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-98-13, 

47 NRC 360, 366 (1998). 

Admission of a contention involving a security plan does not transform the security 

plan into a public document. Licensing Boards may adopt appropriate protective 

measures to preclude public release of information concerning such a plan. 

Georgia Institute of Technology (Georgia Tech Research Reactor, Atlanta, Ga.), 

LBP-95-6, 41 NRC 281, 292 (1995). 

 

The applicable design-basis threats against which an applicant must protect appear 

in 10 C.F.R. § 73.1, to the extent referenced in sections applicable to particular 

types of reactors. The design-basis threat for research reactors includes 

“radiological sabotage.” Georgia Institute of Technology (Georgia Tech Research 

Reactor, Atlanta, Ga.), LBP-95-6, 41 NRC 281, 292-93 (1995). The security plan for 

certain research reactors, insofar as it protects against radiological sabotage, may 

be modified to account for special circumstances. 10 C.F.R. § 73.60(f). Id. 

An intervenor may not challenge orders issued to [Part 72] licensees until such an 

order specifically applies to the licensee involved in the instant proceeding. Private 

Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-03-5, 

57 NRC 233, 235 (2003). 

Orders directed to individual facilities cause no change to the regulations and create 

no new review standard for other licensees or applicants, even if the orders had 

imposed requirements on each facility then in the category. Therefore, orders 

issued in light of the September 11, 2001 attacks did not create a de facto change in 

the 10 C.F.R. § 73.1 design-basis threat for Category I facilities, and the intervenor’s 

contention challenging the requested license amendment was rejected. Duke 

Energy Corp. (Catawba Nuclear Station, Units 1 & 2), CLI-04-19, 60 NRC 5 at 10-12 

(2004). 

NRC’s design-basis threat rule does not conflict with the NRC’s longstanding 

approach to adequate protection and the NRC reasonably declined to include 

defense against air attacks among licensee’s responsibilities. Excluding air attacks 

from the design-basis threat rule does not trigger a duty to perform a NEPA 

analysis. Public Citizen v. NRC, 573 F.3d 916 (2009). 

2.10.5.10 Defective Contentions 

Where contentions are defective, for whatever reason, Licensing Boards have no 

duty to recast them to make them acceptable under 10 C.F.R. § 2.309 (formerly 

PREHEARING MATTERS 142 JUNE 2011
§ 2.714). Commonwealth Edison Co. (Zion Station, Units 1 & 2), ALAB-226, 

8 AEC 381, 406 (1974); see also Duke Energy Carolinas, LLC

(William States Lee III Nuclear Station, Units 1 & 2), LBP-08-17, 68 NRC 431, 447 

(2008) (“A contention’s proponent, not the licensing board, is responsible for 

formulating the contention.”) (quoting Statement of Policy on Conduct of 

Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 22 (1998)). 

The contention pleading criteria set forth in 10 C.F.R. § 2.309(f)(1) (formerly 

§ 2.714(b)(2)) are mandatory and must be scrupulously followed. As the 

Commission has stated with respect to these regulatory provisions, “[i]f any one of 

these requirements is not met, a contention must be rejected.” Arizona Public 

Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2, & 3), CLI-91-12, 34 

NRC 149, 155 (1991); Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; 

Catawba Nuclear Station, Units 1 & 2), LBP-02-4, 55 NRC 49, 64 (2002); Northeast 

Nuclear Energy Co. (Millstone Nuclear Power Station, Units 2 & 3), LBP-01-10, 53 

NRC 273 (2001); Connecticut Yankee Atomic Power Co. (Haddam Neck Plant), 

LBP-01-21, 54 NRC 33, 47 (2001). Failure to submit at least one admissible 

contention is grounds for dismissing the petition under 10 C.F.R. § 2.309(a)(1) 

(formerly § 2.714(b)(1)). Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; 

Catawba Nuclear Station, Units 1 & 2), LBP-02-4, 55 NRC 49, 64 (2002). Where a 

Licensing Board holds that a contention is inadmissible for failing to meet more than 

one of the requirements specified in § 2.309(f)(1)(i)-(vi), a petitioner’s failure to 

address each ground for the Board’s ruling is sufficient justification for the 

Commission to reject the petitioner’s appeal. Dominion Nuclear Connecticut, Inc.

(Millstone Nuclear Power Station, Units 2 & 3), CLI-04-36, 60 NRC 631, 638 (2004). 

However, although a Licensing Board is not required to recast contentions to make 

them acceptable, it also is not precluded from doing so. Pennsylvania Power & 

Light Co. (Susquehanna steam Electric Station, Units 1 & 2), LBP-79-6, 9 NRC 291, 

295-296 (1979). See also Arizona Public Service Co. (Palo Verde Nuclear 

Generating Station, Units 1, 2, & 3), LBP-91-19, 33 NRC 397, 406-408, 412-413 

(1991), appeal denied on other grounds, CLI-91-12, 34 NRC 149 (1991). The Palo 

Verde Licensing Board erred by inferring a basis for the petitioners’ contention when 

the petitioners failed to comply with the requirements of 10 C.F.R. § 2.309(f) 

(formerly § 2.714(b)(2)) to clearly state the basis for its contention and to provide 

sufficient information to support its contention. Palo Verde, supra, 

34 NRC at 155-56. 

A contention’s proponent must be afforded the opportunity to be heard in response 

to objections to the contention. Sequoyah Fuels Corp. (Gore, Oklahoma Site 

Decontamination and Decommissioning Funding), LBP-94-8, 39 NRC 116, 119 

(1994), citing Houston Lighting and Power Co. (Allens Creek Nuclear Generating 

Station, Unit 1), ALAB-565, 10 NRC 521, 525 (1979). 

It is the responsibility of the intervenor, not the Licensing Board, to provide the 

necessary information to satisfy the basis requirement for the admission of its 

contentions. Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), 

ALAB-942, 32 NRC 395, 416-417 (1990). Northeast Nuclear Energy Co. (Millstone 

Nuclear Power Station, Units 2 & 3), LBP-01-10, 53 NRC 273, 286 (2001). 

JUNE 2011 PREHEARING MATTERS 143
A Licensing Board has consolidated otherwise inadmissible contentions with 

properly admitted contentions involving the same subject matter where such 

consolidation would not require the applicant to mount a defense that is substantially 

different or expanded from that which would be required by the admitted 

contentions. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), 

LBP-89-1, 29 NRC 5, 33-34 (1989). 

A contention that seeks to litigate a matter that is the subject of an agency 

rulemaking is not admissible. Private Fuel Storage, L.L.C. (Independent Spent Fuel 

Storage Installation), LBP-00-01, 51 NRC 1, 5 (2000); See Private Fuel Storage, 

L.L.C. (Independent Spent Fuel Storage Installation), LBP-98-7, 47 NRC 142, 179, 

reconsid. granted in part and denied in part on other grounds, LBP-98-10, 47 NRC 

288, aff’d on other grounds, CLI-98-13, 48 NRC 26 (1998). 

The ASLB interpreted agency jurisprudence as reflecting a general reluctance to 

base the dismissal of contentions on pleading or other procedural defects, including 

defects of timing. At the same time, the ASLB judged that the Commission expects 

its presiding officers to set schedules, expects that parties will adhere to those 

schedules, and expects that presiding officers will enforce compliance with those 

schedules. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage 

Installation), LBP-00-28, 52 NRC 226 (2000) (citing Sequoyah Fuels Corp., (Gore, 

Oklahoma Site Decontamination and Decommissioning Funding), LBP-94-8, 39 

NRC 116, 120 (1994); Yankee Atomic Electrical Co., (Yankee Nuclear Power 

Station), CLI-96-1, 43 NRC 1, 5 (1996); Statement of Policy on Adjudicatory 

Proceedings, CLI-98-12, 48 NRC 18, 21 (1998)). 

Extraneous matters such as preservation of rights, statements of intervention, and 

directives for interpretation which accompany an intervenor’s list of contentions will 

be disregarded as contrary to the Commission’s Rules of Practice. Commonwealth 

Edison Co. (Byron Nuclear Power Station, Units 1 & 2), LBP-80-30, 12 NRC 683, 

689-690 (1980). 

Consistent with the analogous agency rules regarding contentions filed by 

intervenors, issues that would constitute “defenses” to an enforcement order are 

subject to dismissal under the appropriate circumstances. Dr. James E. Bauer

(Order Prohibiting Involvement in NRC-Licensed Activities), LBP-94-40, 

40 NRC 323, 334 n.5 (1994); citing Indiana Regional Cancer Center, LBP-94-21, 

40 NRC 22, 33 n.4 (1994). 

2.10.5.11 Discovery to Frame Contentions 

A petitioner is not entitled to discovery to assist him in framing the contentions in his 

petition to intervene. Northern States Power Co. (Prairie Island Nuclear Generating 

Plant, Units 1 & 2), ALAB-107, 6 AEC 188, 192, reconsid. den., ALAB-110, 

6 AEC 247, aff’d, CLI-73-12, 6 AEC 241 (1973); AmerGen Energy Co., LLC (Oyster 

Creek Nuclear Generating Station) CLI-08-28, 68 NRC 658, 676 & n.73, (2008). 

An intervenor may not file a vague contention and place the burden upon the 

applicants and Staff to obtain further details through discovery. Public Service Co. 

of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-942, 32 NRC 395, 

426-27 (1990). 

PREHEARING MATTERS 144 JUNE 2011
2.10.5.12 Stipulations on Contentions 

(RESERVED) 

2.10.6 Conditions on Grants of Intervention 

10 C.F.R. § 2.319 (formerly § 2.714(f)) empowers a Licensing Board to condition an 

order granting intervention on such terms as may serve the purposes of restricting 

duplicative or repetitive evidence and of having common interests represented by a 

single spokesman. 10 C.F.R. § 2.316 (formerly § 2.715a) deals with the general 

authority to consolidate parties in construction permit or operating license proceedings. 

Duke Power Co. (Oconee Nuclear Station and McGuire Nuclear Station), ALAB-528, 

9 NRC 146, 150 n.9 (1979). 

2.10.7 Reinstatement of Intervenor After Withdrawal 

A voluntary withdrawal of intervention is “without prejudice” in that it does not constitute 

a legal bar to the later reinstatement of the intervention upon the intervenor’s showing 

of good cause. Mississippi Power & Light Co. (Grand Gulf Nuclear Station, Units 1 

& 2), LBP-73-41, 6 AEC 1057 (1973). The factors to be considered in the good cause 

determination are generally the same as those considered under 10 C.F.R. § 2.309(c) 

(formerly § 2.714(a)) with primary emphasis on the delay of the proceeding, prejudice 

to other parties and adequate protection of the intervenor’s interests. Grand Gulf, 

supra. 

2.10.8 Rights of Intervenors at Hearing 

In an operating license proceeding (with the exception of certain NEPA issues), the 

applicant’s license application is in issue, not the adequacy of the Staff’s review of the 

application. An intervenor in an operating license proceeding is free to challenge 

directly an unresolved generic safety issue by filing a proper contention, but it may not 

proceed on the basis of allegations that the Staff has somehow failed in its 

performance. Concomitantly, once the record has closed, generic safety issue may be 

litigated directly only if standards for late-filed contentions and reopening the record are 

met. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), 

ALAB-728, 17 NRC 777, 807 (1983), review denied, CLI-83-32, 18 NRC 1309 (1983). 

The rules cannot legitimately be read as requiring that, once an intervenor is 

represented by counsel, that counsel be the party’s sole representative in the 

proceeding. Consumers Power Co. (Midland Plant, Units 1 and 2), LBP-83-28, 

17 NRC 987, 994 (1983). 

When a party is permitted to enter a case late, it is expected to take the case as it finds 

it. It follows that when a party that has participated in a case all along simply changes 

representatives in midstream, knowledge of the matters already heard and received 

into evidence is imputed to it. Metropolitan Edison Co. (Three Mile Island Nuclear 

Station, Unit 1), ALAB-772, 19 NRC 1193, 1246 (1984), rev’d in part on other grounds, 

CLI-85-2, 21 NRC 282 (1985). 

An intervenor’s status as a party in a proceeding does not of itself make it a 

spokesman for others. Public Service Co. of New Hampshire (Seabrook Station, 

JUNE 2011 PREHEARING MATTERS 145
Units 1 & 2), LBP-86-34, 24 NRC 549, 550 n.1 (1986), aff’d, ALAB-854, 24 NRC 783 

(1986), citing Puget Sound Power and Light Co. (Skagit Nuclear Power Project, Units 1 

& 2), ALAB-556, 10 NRC 30, 33 (1979). 

Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), 

ALAB-244, 8 AEC 857, 863, 867-68 (1974), aff’d in pertinent part, CLI-75-1, 1 NRC 1 

(1975). However, that does not elevate the intervenor’s status to that of co-sponsor of 

the contentions. The Commission’s regulations require that, at the outset of a case, 

each intervenor submit “a list of the contentions which it seeks to have litigated.” 

10 C.F.R. § 2.309(a) (formerly § 2.714(b)). It follows from this that one intervenor may 

not introduce affirmative evidence on issues raised by another intervenor’s contentions. 

Prairie Island, supra, 8 AEC at 869 n.17; Houston Lighting and Power Co. (South 

Texas Project, Units 1 & 2), ALAB-799, 21 NRC 360, 383 n.102 (1985). 

Contentions left without a sponsor due to the withdrawal of one intervenor may be 

adopted by another intervenor upon satisfaction of the [eight]-factor balancing test. 

Houston Lighting and Power Co. (South Texas Project, Units 1 & 2), ALAB-799, 

21 NRC 360, 381-82 (1985). See 10 C.F.R. § 2.309 (c). For a detailed discussion of 

the [eight]-factor test, see Section 2.10.5.5. 

A contention which has been joined by two joint intervenors may not be withdrawn 

without the consent of both joint intervenors. Either of the joint intervenors may litigate 

the contention upon the other intervenor’s withdrawal of sponsorship for the contention. 

Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-86-22, 

24 NRC 103, 106 (1986). 

The contention rules explicitly provide the option for petitioners to “adopt” other 

petitioners’ contentions, thus providing an avenue of participation for any party in 

connection with any of the contentions proffered by another participant. However, the 

contention rules do not provide an unconstrained right for a party to cross-examine and 

submit proposed findings on all other parties’ contentions, regardless of whether the 

contentions were ever adopted. Louisiana Energy Services, L.P., CLI-04-35, 

60 NRC 619, 626-27 (2004). 

An intervenor in an operating license proceeding may not proceed on the basis of 

allegations that the Staff has somehow failed in its performance; at least when the 

evidence shows that the alleged inadequate Staff review did not result in inadequacies 

in the analyses and performance of the applicant. Long Island Lighting Co. (Shoreham 

Nuclear Power Station, Unit 1), LBP-83-57, 18 NRC 445, 565 n.29 (1983), citing Pacific 

Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-728, 

17 NRC 777, 807 (1983), review denied, CLI-83-32, 18 NRC 1309 (1983). 

2.10.8.1 Burden of Proof 

A licensee generally bears the ultimate burden of proof. Metropolitan Edison Co.

(Three Mile Island Nuclear Station, Unit 1), ALAB-697, 16 NRC 1265, 1271 (1982), 

citing 10 C.F.R. § 2.325 (formerly § 2.732). But intervenors must give some basis 

for further inquiry. Three Mile Island, supra, 16 NRC at 1271, citing Pennsylvania 

Power and Light Co. and Alleghany Electric Cooperative, Inc. (Susquehanna Steam 

Electric Station, Units 1 & 2), ALAB-613, 12 NRC 317, 340 (1980). See Section 3.7. 

PREHEARING MATTERS 146 JUNE 2011
Although 10 C.F.R. § 2.309 (formerly § 2.714) imposes on a petitioner the burden of 

going forward with a sufficient factual basis, it does not shift the ultimate burden of 

proof from the applicant to the petitioner. Section 50.82(e) of 10 C.F.R. expressly 

requires that decommissioning be performed in accordance with the regulations, 

including the as-low-as-is-reasonably-achievable (ALARA) rule in 

10 C.F.R. § 20.1101. Yankee Atomic Electric Co. (Yankee Nuclear Power Station), 

CLI-96-7, 43 NRC 235, 249 (1996). 

The proponent of the need for an evidentiary hearing bears the burden of 

establishing that need, but the staff bears the ultimate burden to demonstrate its 

compliance with NEPA in its EA determination that an EIS is not necessarily relative 

to a license amendment request. Carolina Power & Light Co. (Shearon Harris 

Nuclear Power Plant), LBP-01-9, 53 NRC 239, 249 (2001). 

An intervenor has the burden of going forward with respect to issues raised by his 

contentions. Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), 

ALAB-262, 1 NRC 163, 191 (1975); Commonwealth Edison Co. (Zion Station, 

Units 1 & 2), ALAB-226, 8 AEC 381, 388-89 (1974). For a more detailed discussion, 

see Section 3.8.2. 

While an applicant has the ultimate burden of proof on any issues upon which a 

hearing is held, hearings are held on only those issues that an intervenor brings to 

the fore. The burden of going forward on any issues that make it to the hearing 

process is on the intervenor which is pursuing that issue. Private Fuel Storage, 

L.L.C. (Independent Spent Fuel Storage Installation), LBP-05-12, 61 NRC 319, 326 

(2005), aff’d Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage 

Installation), CLI-05-19, 62 NRC 403 (2005). 

In decommissioning cases there is a presumption that the licensee’s choice of 

decommissioning alternatives is reasonable. It is, therefore, petitioners’ burden to 

show “extraordinary circumstances” rebutting this presumption. Yankee Atomic 

Electric Co. (Yankee Nuclear Power Station), CLI-96-7, 43 NRC 235, 252 (1996). 

2.10.8.2 Presentation of Evidence 

2.10.8.2.1 Affirmative Presentation by Intervenor/Participants 

Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), 

ALAB-244, 8 AEC 857, 869 n.17, reconsid. den., ALAB-252, 8 AEC 1175 (1974), 

aff’d, CLI-75-1, 1 NRC 1 (1975). This rule does not apply to an interested state 

participating under 10 C.F.R. § 2.315(c) (formerly § 2.715(c)). Such a state may 

produce evidence on issues not raised by it. Project Management Corp. (Clinch 

River Breeder Reactor), ALAB-354, 4 NRC 383, 392-93 (1976). 

2.10.8.2.2 Consolidation of Intervenor Presentations 

A Licensing Board, in permitting intervention, may consolidate intervenors for the 

purpose of restricting duplicative or repetitive evidence and argument. 

10 C.F.R. § 2.316 (formerly § 2.714(f)). In addition, parties with substantially 

similar interests and contentions may be ordered to consolidate their 

JUNE 2011 PREHEARING MATTERS 147
presentation of evidence, cross-examination and participation in general 

pursuant to 10 C.F.R. § 2.316 (formerly § 2.715a). An order consolidating the 

participation of one party with the others may not be appealed prior to the 

conclusion of the proceeding. Portland General Electric Co. (Trojan Nuclear 

Plant), ALAB-496, 8 NRC 308-309 (1978); Gulf States Utilities Co. (River Bend 

Station, Units 1 & 2), LBP-83-52A, 18 NRC 265, 272-73 (1983), citing Statement 

of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 455 

(1981). See also Philadelphia Electric Co. (Limerick Generating Station, Units 1 

& 2), ALAB-808, 21 NRC 1595, 1601 (1985); Hydro Resources, Inc. (2929 Coors 

Rd., Suite 101, Albuquerque, NM 87120), LBP-98-9, 47 NRC 261, 284 (1998). 

Only parties to a Commission licensing proceeding may be consolidated. 

Petitioners who are not admitted as parties may not be consolidated for the 

purposes of participation as a single party. 10 C.F.R. § 2.316 (formerly 

§ 2.715a); Commonwealth Edison Co. (Dresden Nuclear Power Station, Unit 1), 

CLI-81-25, 14 NRC 616, 623 (1981). 

Where intervenors have filed consolidated briefs they may be treated as a 

consolidated party; one intervenor may be appointed lead intervenor for 

purposes of coordinating responses to discovery, but discovery requests should 

be served on each party intervenor. It is not necessary that a contention or 

contentions be identified to any one of the intervening parties, so long as there is 

at least one contention admitted per intervenor. Cleveland Electric Illuminating 

Co. (Perry Nuclear Power Plant, Units 1 & 2), LBP-81-35, 14 NRC 682, 687 

(1981). 

The Commission has issued a policy statement relating to consolidation of 

intervenors and the conduct of licensing proceedings. Pursuant to that 

Commission guidance, consolidation should not be ordered when it will prejudice 

the rights of any intervenor; however, in all appropriate cases, single, lead 

intervenors should be designated to present evidence, conduct crossexamination, submit briefs, and propose findings of fact, conclusions of law, and 

argument. Except where other intervenors’ interests will be prejudiced or upon a 

showing that the record will be incomplete, those activities should not be 

performed by such other intervenors. Statement of Policy on Conduct of 

Licensing Proceedings, CLI-81-8, 13 NRC 452, 455 (1981). 

2.10.8.3 Cross-Examination by Intervenors 

An intervenor may engage in cross-examination of witnesses dealing with issues not 

raised by him if the intervenor has a discernible interest in resolution of those 

issues. Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 

& 2), CLI-75-1, 1 NRC 1 (1975); Northern States Power Co. (Prairie Island Nuclear 

Generating Plant, Units 1 & 2), ALAB-244, 8 AEC 857, 867-68 (1974); Consumers 

Power Co. (Midland Plant, Units 1 & 2), LBP-85-2, 21 NRC 24, 32 (1985), vacated 

as moot, ALAB-842, 24 NRC 197 (1986). Licensing Boards must carefully restrict 

and monitor such cross-examination, however, to avoid repetition. Prairie Island, 

supra, 1 NRC 1. 

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In general, the intervenor’s cross-examination may not be used to expand the 

number or boundaries of contested issues. Prairie Island, supra, 8 AEC 857. For a 

further discussion, see Section 3.13.1. 

2.10.8.4 Intervenor’s Right to File Proposed Findings 

An intervenor may file proposed findings with respect to all issues whether or not 

raised by his own contentions. Northern States Power Co. (Prairie Island Nuclear 

Generating Plant, Units 1 & 2), ALAB-244, 8 AEC 857, 863 (1974); Consumers 

Power Co. (Midland Plant, Units 1 & 2), LBP-85-2, 21 NRC 24, 32 (1985), vacated 

as moot, ALAB-842, 24 NRC 197 (1986). 

A Board in its discretion may refuse to rule on an issue in its initial decision if the 

party raising the issue has not filed proposed findings of fact and conclusions of law. 

Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 

457 (1981). 

The right to file proposed findings of fact in an adjudication is not unlawfully 

abridged unless there was prejudicial error in refusing to admit the evidence that 

would have been the subject of the findings. Southern California Edison Co.

(San Onofre Nuclear Generating Station, Units 2 and 3), CLI-82-11, 15 NRC 1383, 

1384 (1982). 

When statements in applicant’s proposed findings, which are based on applicant 

statements by witnesses under oath before the presiding officer or as part of its 

application, indicate a willingness to comply with all or a portion of specific, 

nationally recognized consensus standards, little purpose would be served in 

repeating the terms of these commitments as license conditions (or as presiding 

officer directives). Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage 

Installation), LBP-00-35, 52 NRC 364, 410 (2000), citing Commonwealth Edison Co.

(Zion Station, Units 1 & 2), ALAB-616, 12 NRC 419, 423-24 (1980). 

2.10.8.5 Attendance at/Participation in Prehearing Conferences/Hearings 

An intervenor seeking to be excused from a prehearing conference should file a 

request to this effect before the conference date. Such a request should present the 

justification for not attending. Public Service Co. of New Hampshire (Seabrook 

Station, Units 1 & 2), ALAB-488, 8 NRC 187, 190-91 (1978). For a discussion of a 

party’s duty to attend hearings, see Section 3.7. 

Where an intervenor indicates its intention not to participate in the evidentiary 

hearing, the intervenor may be held in default and its admitted contentions 

dismissed although the Licensing Board will review those contentions to assure that 

they do not raise serious matters that must be considered. Boston Edison Co.

(Pilgrim Nuclear Generating Station, Unit 2), LBP-76-7, 3 NRC 156, 157 (1976). 

See Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), 

LBP-90-12, 31 NRC 427, 429-31 (1990), aff’d in part, ALAB-934, 32 NRC 1 (1990). 

Notwithstanding cases suggesting that a presiding officer must undertake a review 

of an issue subject to dismissal because of a party default to ensure there are no 

serious matters that require consideration, see Pilgrim, LBP-76-7, 3 NRC at 157; 

JUNE 2011 PREHEARING MATTERS 149
see also Seabrook, LBP-90-12, 31 NRC at 431, such an evaluation must be 

tempered by the Commission’s admonition that a presiding officer should, on their 

own initiative, engage in the consideration of health, safety, environmental, or 

common defense and security matters outside the scope of admitted contentions 

only in “extraordinary circumstances” and then in accordance with the appropriate 

procedural dictates, which includes Commission referral of any decision to look into 

such matters. See Statement of Policy on Conduct of Adjudicatory Proceedings, 

CLI-98-12, 48 NRC 18, 22-23 (1998). 

An appropriate sanction for willful refusal to attend a prehearing conference is 

dismissal of the petition for intervention. Arizona Public Service Co. (Palo Verde 

Nuclear Generating Station, Units 1, 2, & 3), LBP-91-13, 33 NRC 259, 262-63 

(1991); Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 

2, & 3), LBP-92-3, 35 NRC 107, 109 (1992). In the alternative, an appropriate 

sanction is the acceptance of the truth of all statements made by the applicant or the 

NRC Staff at the special prehearing conference. Application of that sanction would 

also result in dismissal. Wisconsin Electric Power Co. (Point Beach Nuclear Plant, 

Unit 1), LBP-82-108, 16 NRC 1811, 1817 (1982). 

A Licensing Board is not expected to sit idly by when parties refuse to comply with 

its orders. Pursuant to 10 C.F.R. § 2.319 (formerly § 2.718), a Licensing Board has 

the power and the duty to maintain order, to take appropriate action to avoid delay 

and to regulate the course of the hearing and the conduct of the participants. 

Furthermore, pursuant to 10 C.F.R. § 2.320 (formerly § 2.707), the refusal of a party 

to comply with a Board order relating to its appearance at a proceeding constitutes a 

default for which a Licensing Board may make such orders in regard to the failure as 

are just. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), 

LBP-82-115, 16 NRC 1923, 1928 (1982). 

As part of a presiding officer’s duty to maintain order and to take appropriate action 

to avoid delay and regulate the course of a hearing and the conduct of the parties, a 

Licensing Board is expected to take action when parties, for whatever reason, fail to 

comply with scheduling and other orders. Private Fuel Storage, L.L.C. (Independent 

Spent Fuel Storage Installation), LBP-00-5, 51 NRC 64, 67 (2000); See Long Island 

Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-115, 16 NRC 1923, 

1928 (1982). 

A party may not be heard to complain that its rights were unjustly abridged after 

having purposefully refused to participate. Long Island Lighting Co. (Shoreham 

Nuclear Power Station, Unit 1), LBP-82-115, 16 NRC 1923, 1935 (1982). 

Dismissal of a party is the ultimate sanction applicable to an intervenor. Consumers 

Power Co. (Palisades Nuclear Plant), LBP-82-101, 16 NRC 1594, 1595-1596 

(1982), citing Boston Edison Co. (Pilgrim Nuclear Generating Station, Unit 2), LBP76-7, 3 NRC 156 (1976). 

2.10.8.6 Pleadings and Documents of Intervenors 

An intervenor may not disregard an adjudicatory board’s direction to file a 

memorandum without first seeking leave of the board. Public Service Co. of New 

Hampshire (Seabrook Station, Units 1 & 2), ALAB-488, 8 NRC 187 (1978). 

PREHEARING MATTERS 150 JUNE 2011
If an error or omission is noted by a litigant in a document that it has served and/or 

filed, the proper procedure is to file a document that is clearly marked as an 

amended or corrected version of the pleading, and to accompany that amended 

pleading with a motion requesting leave to substitute the amended pleading for the 

original. Such a motion should also fully explain the differences between the 

amended pleading and the original, as well as the circumstances justifying the filing 

of the amended pleading. Failure to follow such a procedure will ordinarily result in 

the second pleading being stricken. USEC, Inc. (American Centrifuge Plant), 

LBP-05-28, 62 NRC 585, 593 (2005). 

2.10.9 Cost of Intervention 

2.10.9.1 Financial Assistance to Intervenors 

Congress has barred the use of appropriated monies to pay the expenses of, or 

otherwise compensate, parties intervening in NRC regulatory or adjudicatory 

proceedings. Pub. L. No. 102-377, Title V, § 502, 106 Stat. 1342 (1992), 

5 U.S.C. § 504 note. This law made permanent the proscription against such 

funding that had been attached to NRC appropriations bills for several previous 

years. See, e.g., Pub. L. No.97-88, Title V, § 502, 95 Stat. 1148 (1981) and 

Pub. L. No. 97-276, § 101(9), 96 Stat. 1135 (1982). 

Prior to adoption of this bar, the Commission had considered financial assistance to 

intervenors, even in the absence of express statutory authority to do so. Although a 

Comptroller General opinion had suggested that the Commission might do so under 

certain circumstances, see Nuclear Regulatory Commission (Financial Assistance to 

Participants in Commission Proceedings), CLI-76-23, 4 NRC 494 (1976), a judicial 

decision overruled a later related Comptroller General opinion involving another 

agency. Green County Planning Board v. FPC, 559 F.2d 1227 (2d Cir. 1977), cert. 

denied, 434 U.S. 1086 (1978). On this basis, in part, funding for intervenors was 

denied in Exxon Nuclear Co., (Low Enriched Uranium Exports to EURATOM 

Member Nations), CLI-77-31, 6 NRC 849 (1977). The Commission indicated that it 

favored funding intervenors but noted Congress had precluded such funding in 

Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-80-19, 

11 NRC 700 and CLI-80-20, 11 NRC 705 (1980). The Commission had authorized 

free transcripts in adjudicatory proceedings on an application for a license or an 

amendment thereto in prior Commission rules, 10 C.F.R. §§ 2.708(d), 2.712(f) and 

2.750(c), 45 Fed. Reg. 49,535 (July 25, 1980), but those rules were suspended in 

the face of the legislative bar on intervenor funding. See 46 Fed. Reg. 13,681 

(Feb. 24, 1981). 

The Commission does not have the authority to require the utility applicants to 

themselves fund intervention nor to assess fees for that purpose where the service 

to be performed is for intervenors’ benefit and is not one needed by the Commission 

to discharge its own licensing responsibilities. See Mississippi Power and Light Co. 

v. NRC, 601 F.2d 223 (5th Cir. 1979), cert. denied, 444 U.S. 1102 (1980). See also

National Cable Television Association Inc. v. United States, 415 U.S. 336 (1978); 

Federal Power Commission v. New England Power Co., 415 U.S. 345 (1974); 

Cincinnati Gas and Electric Co. (William H. Zimmer Nuclear Power Station, Unit 1), 

CLI-82-40, 16 NRC 1717 (1982); Metropolitan Edison Co. (Three Mile island 

Nuclear Station, Unit 1), ALAB-772, 19 NRC 1193, 1273 (1984), rev’d in part on 

JUNE 2011 PREHEARING MATTERS 151
other grounds, CLI-85-2, 21 NRC 282 (1985); Metropolitan Edison Co. (Three Mile 

Island Nuclear Station, Unit 1), ALAB-807, 21 NRC 1195, 1212 (1985), citing

Pub. L. No. 98-360, 98 Stat. 403 (1984). See Houston Lighting and Power Co.

(Allens Creek Nuclear Generating Station, Unit 1), ALAB-625, 13 NRC 13, 14-15 

(1981). 

Ordinarily parties are to bear their own litigation expense; a claim for litigation costs 

under the “private attorney general” theory must have a statutory basis. Duke 

Power Co. (Perkins Nuclear Station, Units 1, 2, & 3), LBP-82-81, 16 NRC 1128, 

1139 (1982), citing Alyeska Pipeline Serv. v. Wilderness Soc., 421 U.S. 240, 269; 

44 L.Ed.2d 141; 95 S. Ct. 1612 (1975). 

2.10.9.2 Intervenors’ Witnesses 

The Appeal Board has indicated that where an intervenor would call a witness but 

for the intervenor’s financial inability to do so, the Licensing Board may call the 

witness as a Board witness and authorize NRC payment of the usual witness fees 

and expenses. The decision to take such action is a matter of Licensing Board 

discretion which should be exercised with circumspection. If the Board calls such a 

witness as its own, it should limit cross-examination to the scope of the direct 

examination. Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-382, 

5 NRC 603, 607-608 (1977). This decision is of questionable weight in view of the 

developments pertaining to intervenor funding discussed in Section 2.9.9.1. 

2.10.10 Appeals by Intervenors 

If a presiding officer denies a petition to intervene, the action is appealable within 

ten (10) days of service of the order. 10 C.F.R. § 2.311 (formerly §§ 2.714a and 

2.1205(o)). Commission rules, as set forth in 10 C.F.R. § 2.306 (formerly § 2.710), add 

five (5) days to filing deadlines when service is by mail. International Uranium (USA) 

Corp. (White Mesa Uranium Mill), CLI-02-13, 55 NRC 269, 272 (2002). See also

Nuclear Fuel Services, Inc., CLI-04-13, 59 NRC 244, 248 (2004). 

Despite the substantial deference given to presiding officers in determining standing, 

such decisions are reviewable on appeal for abuse of discretion. International Uranium 

(USA) Corp. (White Mesa Uranium Mill), CLI-02-13, 55 NRC 269, 273 (2002). 

An intervenor may seek appellate redress on all issues whether or not those issues 

were raised by his own contentions. Northern States Power Co. (Prairie Island Nuclear 

Generating Plant, Units 1 & 2), ALAB-244, 8 AEC 857, 863 (1974). Section 2.311 

permits appeals only if the Board rejects all of the intervenor’s proposed contentions. 

Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear 

Power Station), CLI-07-2, 65 NRC 10, 11 (2007). 

2.10.11 Intervention in Remanded Proceedings 

The Licensing Board was “manifestly correct” in rejecting a petition requesting 

intervention in a remanded proceeding where the scope of the remanded proceeding 

had been limited by the Commission, and the petition for intervention dealt with matters 

outside that scope. The Licensing Board had limited jurisdiction in the proceeding and 

could consider only what had been remanded to it. Carolina Power and Light Co.

PREHEARING MATTERS 152 JUNE 2011
(Shearon Harris Nuclear Power Plant, Units 1–4), ALAB-526, 9 NRC 122, 124 n.3 

(1979). 

2.11 Non-Party Participation – Limited Appearance and Interested States

2.11.1 Limited Appearances in NRC Adjudicatory Proceedings 

Although limited appearers are not parties to any proceeding, statements by limited 

appearers can serve to alert the Licensing Board and the parties to areas in which 

evidence may need to be adduced. Iowa Electric Light & Power Co. (Duane Arnold 

Energy Center), ALAB-108, 6 AEC 195, 196 n.4 (1973). 

2.11.1.1 Requirements for Limited Appearance 

The requirements for becoming a limited appearer are set out in 10 C.F.R. § 2.315 

(formerly § 2.715). Based upon that section, the requirements for limited 

appearances are generally within the discretion of the presiding officer in the 

proceeding. Commonwealth Edison Co. (Dresden Nuclear Power Station, Unit 1), 

CLI-81-25, 14 NRC 616, 623 (1981). 

2.11.1.2 Scope/Limitations of Limited Appearances 

Under 10 C.F.R. § 2.315(a) (formerly § 2.715(a)), the role of a limited appearer is 

restricted to making oral or written statements of his position on the issues within 

such limits and on such conditions as the Board may fix. 

Pursuant to 10 C.F.R. § 2.315(a) (formerly § 2.715(a)), limited appearance 

statements may be permitted at the discretion of the presiding officer, but the person 

admitted may not otherwise participate in the proceeding. Metropolitan Edison Co.

(Three Mile Island Nuclear Station, Unit 1), CLI-83-25, 18 NRC 327, 333 (1983). 

A limited appearance statement is not evidence and need only be taken into 

account by the Licensing Board to the extent that it may alert the Board or parties to 

areas in which evidence may need to be adduced. Iowa Electric Light & Power Co.

ALAB-108, supra, (dictum). 

The purpose of limited appearance statements is to alert the Licensing Board and 

parties to areas in which evidence may need to be adduced. Such statements do 

not constitute evidence, and accordingly, the Board is not obligated to discuss them 

in its decision. Louisiana Power and Light Co. (Waterford Steam Electric Station, 

Unit 3), ALAB-732, 17 NRC 1076, 1087 n.12 (1983), citing 10 C.F.R. § 2.315(a) 

(formerly § 2.715(a)); Iowa Electric Light and Power Co. (Duane Arnold Energy 

Center), ALAB-108, 6 AEC 195, 196 n.4 (1973). 

A person who makes a limited appearance before a Licensing Board may not 

appeal from that Board’s decision. Metropolitan Edison Co. (Three Mile Island 

Nuclear Station, Unit 2), ALAB-454, 7 NRC 39 (1978). 

JUNE 2011 PREHEARING MATTERS 153
2.11.2 Participation by Non-Party Interested States and Local Governments 

State agencies may choose to participate either as a party under 

10 C.F.R. § 2.309(d)(2) (formerly § 2.714) or as an interested state under 

10 C.F.R. § 2.315(c) (formerly § 2.715(c)). To participate under 10 

C.F.R. § 2.309(d)(2) (formerly § 2.714), a state agency must satisfy the same 

standards as an individual petitioner except that a state agency that wishes to be a 

party in a proceeding for a facility located within its boundaries need not address the 

standing requirements under 10 C.F.R. § 2.309(d)(1). Northern States Power Co.

(Independent Spent Fuel Storage Installation), LBP-96-22, 44 NRC 138, 141 (1996). 

Under 10 C.F.R. § 2.315(c) (formerly § 2.715(c)), an interested state may participate in 

a proceeding even though it is not a party. In this context, the Board must afford 

representatives of the interested state the opportunity to introduce evidence, 

interrogate witnesses and advise the Commission. In so doing, the interested state 

need not take a position on any of the issues. Even though a state has submitted 

contentions and intervened under 10 C.F.R. § 2.309 (formerly § 2.714), it may 

participate as an “interested State” under 10 C.F.R. § 2.315(c) (formerly § 2.715(c)) on 

issues in the proceeding not raised by its own contentions. USERDA (Clinch River 

Breeder Reactor Plant), ALAB-354, 4 NRC 383 (1976); Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), LBP-82-19, 15 NRC 601, 617 (1982). See 

also Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), LBP-82-76, 

16 NRC 1029, 1079 (1982), citing Gulf States Utilities Co. (River Bend Station, Units 1 

& 2), ALAB-444, 6 NRC 760 (1977). However, once a party is admitted as an 

interested state under Section 2.315(c), it may not reserve the right to intervene later 

under Section 2.309 with full party status. Petition to intervene under the provisions of 

the latter section must conform to the requirements for late-filed petitions. 

Consolidated Edison Co. of N.Y. (Indian Point Nuclear Generating Unit 2) and Power 

Authority of the State of N.Y. (Indian Point Nuclear Generating Unit 3), LBP-82-25, 15 

NRC 715, 723 (1982). 

A Licensing Board may require the representative of an interested state to indicate in 

advance of the hearing the subject matter on which it wishes to participate, but such a 

showing is not a prerequisite of admission under 10 C.F.R. § 2.315(c) (formerly 

§ 2.715(c)). Indian Point, supra, 15 NRC at 723. 

A state participating as an interested state may appeal an adjudicatory board’s 

decision so that an interested state participating under 10 C.F.R. § 2.315(c) (formerly 

§ 2.715(c)) constitutes the sole exception to the normal rule that a non-party to a 

proceeding may not appeal from the decision in that proceeding. Metropolitan Edison 

Co. (Three Mile Island Nuclear Station, Unit 2), ALAB-454, 7 NRC 39 (1978). 

Section 274(l) of the AEA confers a right to participate in licensing proceedings on the 

state of location for the subject facility. However, 10 C.F.R. § 2.315(c) (formerly 

§ 2.715(c)) of the Commission’s Rules of Practice extends an opportunity to participate 

not merely to the state in which a facility will be located, but also to those other states 

that demonstrate an interest cognizable under Section 2.315(c) (formerly 

Section 2.715(c)). Exxon Nuclear Co., Inc. (Nuclear Fuel Recovery and Recycling 

Center), ALAB-447, 6 NRC 873 (1977). See, e.g., Philadelphia Electric Co. (Peach 

Bottom Atomic Power Station, Units 2 & 3), CLI-74-32, 8 AEC 217 (1974). 

PREHEARING MATTERS 154 JUNE 2011
Although a state seeking to participate as an “interested State” under Section 2.315(c) 

(formerly Section 2.715(c)) need not state contentions, once in the proceeding it must 

comply with all the procedural rules and is subject to the same requirements as parties 

appearing before the Board. Gulf States Utilities Co. (River Bend Station, Units 1 & 2), 

ALAB-444, 6 NRC 760 (1977); Illinois Power Co. (Clinton Power Station, Unit 1), 

LBP-82-103, 16 NRC 1603, 1615 (1982), citing River Bend, supra, 6 NRC at 768. 

Nevertheless, the Commission has emphasized that the participation of an interested 

sovereign state, as a full party or otherwise, is always desirable in the NRC licensing 

process. Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), 

CLI-77-25, 6 NRC 535 (1977). A state’s participation may be so important that the 

state’s desire to be a party to Commission review may be one factor to consider in 

determining whether the state should be permitted to participate in the Commission 

review, even though the state has not fully complied with the requirements for such 

participation. Id.

A state has no right to participate in administrative appeals when it has not participated 

in the underlying hearing. The Commission will deny a state’s extremely untimely 

petition to intervene as a non-party interested state which is filed on the eve of the 

Commission’s licensing decision. Cleveland Electric Illuminating Co. (Perry Nuclear 

Power Plant, Units 1 & 2), CLI-86-20, 24 NRC 518, 519 (1986), aff’d sub nom. Ohio v. 

NRC, 814 F.2d 258 (6th Cir. 1987). 

A governmental body must demonstrate a genuine interest in participating in the 

proceeding. A Licensing Board denied a municipality permission to participate as an 

interested state in a reopened hearing where the municipality failed to: file proposed 

findings of fact; comply with a Board order to indicate with reasonable specificity the 

subject matters on which it desired to participate; appear at an earlier evidentiary 

hearing; and specify its objections to the Staff reports which were the focus of the 

reopened hearing. Public Service Co. of New Hampshire (Seabrook Station, Units 1 

& 2), LBP-86-24, 24 NRC 132, 136 (1986). 

The mere filing by a state of a petition to participate in an operating license application 

pursuant to 10 C.F.R. § 2.315(c) (formerly § 2.715(c)) as an interested state is not 

cause for ordering a hearing. The application can receive a thorough agency review, 

outside of the hearing process, absent indications of significant controverted matters or 

serious safety or environmental issues. Niagara Mohawk Power Corp. (Nine Mile Point 

Nuclear Station, Unit 2), LBP-83-45, 18 NRC 213, 216 (1983); Duquesne Light Co.

(Beaver Valley Power Station, Unit 2), LBP-84-6, 19 NRC 393, 426 (1984), citing

Northern States Power Co. (Tyrone Energy Park, Unit 1), CLI-80-36, 12 NRC 523, 527 

(1980). 

Although a state has a statutory right to a reasonable opportunity to participate in NRC 

proceedings, it may not seek to appeal on issues it did not participate in below, or seek 

remand of those issues. However, the state is given an opportunity to file a brief 

amicus curiae. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, 

Units 1 & 2), ALAB-583, 11 NRC 447 (1980). A state participating under 

10 C.F.R. § 2.315(c) is a party for purposes of § 2.802(d) and therefore may request 

suspension of all or part of a proceeding in which it is a party pending disposition of its 

petition for rulemaking. Entergy Nuclear Generation Co. and Entergy Nuclear 

Operations, Inc. (Pilgrim Nuclear Power Station), CLI-08-9, 67 NRC 353, 355-56 

(2008); Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. 

JUNE 2011 PREHEARING MATTERS 155
(Vermont Yankee Nuclear Power Station) and Nuclear Generation Company and 

Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station) CLI-07-13, 

65 NRC 211, 214-15 (2007). 

A late decision by the Governor of a state to participate as representative of an 

interested state can be granted, but the Governor must take the proceeding as he finds 

it. He cannot complain of rulings made or procedural arrangements settled prior to his 

participation. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, 

Units 1 & 2), ALAB-600, 12 NRC 3, 8 (1980); Long Island Lighting Co. (Shoreham 

Nuclear Power Station, Unit 1), LBP-83-13, 17 NRC 469, 471-72 (1983), citing

10 C.F.R. § 2.315(c) (formerly § 2.715(c)); Cincinnati Gas and Electric Co.

(Wm. H. Zimmer Nuclear Station), LBP-80-6, 11 NRC 148, 151 (1980). 

An interested state that has elected to litigate issues as a full party under 

10 C.F.R. § 2.309 (formerly § 2.714) is accorded the rights of an “interested State” 

under 10 C.F.R. § 2.315(c) (formerly § 2.715(c)) as to all other issues. Public Service 

Co. of New Hampshire (Seabrook Station, Units 1 & 2), LBP-83-9, 17 NRC 403, 407 

(1983), citing Project Management Corp. (Clinch River Breeder Reactor Plant), ALAB354, 4 NRC 383, 392-93 (1976). 

The plain terms of 10 C.F.R. 2.315(c) allow government entities to claim “interested 

state” participation only if they are not already admitted as parties under 

10 C.F.R. § 2.309. The contention rules explicitly provide the option for petitioners to 

“adopt” other petitioners’ contentions, thus providing an avenue of participation for any 

party in connection with any of the contentions proffered by another participant. 

Louisiana Energy Services, L.P., CLI-04-35, 60 NRC 619, 626-27 (2004). 

10 C.F.R. § 2.315(c) (formerly § 2.715(c)) authorizes an interested state to introduce 

evidence with respect to those issues on which it has not taken a position. However, at 

the earliest possible date in advance of the hearing, an interested state must state with 

reasonable specificity those subject areas, other than its own contentions, in which it 

intends to participate. Seabrook, supra, 17 NRC at 407. 

The presiding officer may require an interested governmental entity to indicate with 

reasonable specificity, in advance of the hearing, the subject matters on which it 

desires to participate. However, once the time for identification of new issues by even 

a governmental participant has passed, either by schedule set by the Board or by 

circumstances, any new contention thereafter advanced by the governmental 

participant must meet the test for nontimely contentions. Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), LBP-83-30, 17 NRC 1132, 1140 (1983). 

See, e.g., Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), 

LBP-82-19, 15 NRC 601, 617 (1982). 

An interested state, once admitted to a proceeding, must observe the procedural 

requirements applicable to other participants. Every party, however, may seek 

modification for good cause of time limits previously set by a Board. Moreover, good 

cause, by its very nature, must be an ad hoc determination based on the facts and 

circumstances applicable to the particular determination. Houston Lighting and Power 

Co. (South Texas Project, Units 1 & 2), LBP-83-26, 17 NRC 945, 947 (1983). 

PREHEARING MATTERS 156 JUNE 2011
Although an interested state must observe applicable procedural requirements, 

including time limits, the facts and circumstances which would constitute good cause 

for extending the time available to a state may not be coextensive with those 

warranting that action for another party. States need not, although they may, take a 

position with respect to an issue in order to participate in the resolution of that issue. 

Reflecting political changes which uniquely bear upon bodies such as states, a state’s 

position on an issue (and the degree of its participation with respect to that issue) might 

understandably change during the course of a Board’s consideration of the issue. The 

Commission itself has recognized such factors, and it has permitted states to 

participate even where contrary to a procedural requirement which might bar another 

party’s participation. Houston Lighting and Power Co. (South Texas Project, Units 1 

& 2), LBP-83-26, 17 NRC 945, 947 (1983), citing Public Service Co. of New Hampshire

(Seabrook Station, Units 1 & 2), CLI-77-25, 6 NRC 535 (1977); See

10 C.F.R. § 2.315(c) (formerly § 2.715(c)). 

A county does not lose its right to participate as an interested governmental agency 

pursuant to 10 C.F.R. § 2.315(c) (formerly § 2.715(c)) because it has elected to 

participate as a full intervenor on specified contentions. Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), LBP-83-30, 17 NRC 1132, 1139 (1983), 

citing Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-19, 

15 NRC 601, 617 (1982). 

Any governmental participant seeking to advance a late contention or issue, whether or 

not it be a participant already in the case or one seeking to enter, must satisfy the 

criteria for late-filed contentions as well as the criteria for reopening the record. 

Shoreham, supra, 17 NRC at 1140. 

A state’s status as an interested state does not confer upon it any special power to 

adopt contentions which have been abandoned by their sponsor. A state must observe 

the procedural requirements applicable to other participants. Public Service Co. of 

New Hampshire (Seabrook Station, Units 1 and 2), LBP-90-12, 31 NRC 427, 430-31 

(1990), aff’d in part on other grounds, ALAB-934, 32 NRC 1 (1990). 

2.12 Discovery

2.12.1 Time for Discovery 

A potential intervenor has no right to seek discovery prior to filing his petition to 

intervene. Wisconsin Electric Power Co. (Koshkonong Nuclear Plant, Units 1 & 2), 

CLI-74-45, 8 AEC 928 (1974); Northern States Power Co. (Prairie Island Nuclear 

Generating Plant, Units 1 & 2), ALAB-107, 6 AEC 188, reconsid. den., ALAB-110, 

6 AEC 247, aff’d, CLI-73-12, 6 AEC 241 (1973). See also BPI v. AEC, 502 F.2d 424, 

428-29 (D.C. Cir. 1974). Discovery on the subject matter of a contention in a licensing 

proceeding can be obtained only after the contention has been admitted to the 

proceeding. Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1), 

ALAB-696, 16 NRC 1245, 1263 (1982). See Vermont Yankee Nuclear Power Corp.

(Vermont Yankee Nuclear Power Station), LBP-88-25, 28 NRC 394, 396 (1988) (the 

scope of a contention is determined by the literal terms of the contention, coupled with 

its stated bases), reconsid. denied on other grounds, LBP-88-25A, 28 NRC 435 (1988). 

JUNE 2011 PREHEARING MATTERS 157
A Licensing Board denied an applicant’s motion for leave to commence limited 

discovery against persons who had filed petitions to intervene (at that point, nonparties). The Board entertained substantial doubt as to its authority to order the 

requested discovery, but denied the motion specifically because it found no necessity 

to follow that course of action. The Board discussed at length the law relating to the 

prohibition found in 10 C.F.R. § 2.705(b)(1) (formerly § 2.740(b)(1)) against discovery 

beginning prior to the prehearing conference provided for in 10 C.F.R. § 2.329 

(formerly § 2.751a). Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), 

LBP-78-37, 8 NRC 575, 577-584 (1978). 

Applicants are entitled to prompt discovery concerning the bases of contentions, since 

a good deal of information is already available from the FSAR and other documents 

early in the course of the proceeding. Commonwealth Edison Co. (Byron Station, 

Units 1 & 2), LBP-81-30-A, 14 NRC 364, 369 (1981). 

The fact that late intervention has been permitted should not disrupt established 

discovery schedules since a tardy petitioner with no good excuse must take the 

proceeding as he finds it. Nuclear Fuel Services. Inc. (West Valley Reprocessing 

Plant), CLI-75-4, 1 NRC 273 (1975). 

When a Licensing Board holds that the sole contention in a proceeding is moot, the 

mandatory disclosure process for that contention (10 C.F.R. §§ 2.336 and 2.1203) is 

terminated. Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), 

LBP-06-16, 63 NRC 737, 745 (2006). 

Under 10 C.F.R. § 2.705(b)(1) (formerly § 2.740(b)(1)), discovery is available after a 

contention is admitted and may be terminated a reasonable time thereafter. Litigants 

are not entitled to further discovery as a matter of right with respect to information 

relevant to a contention which first surfaces long after discovery on that contention has 

been terminated. Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), LBP-84-24, 

19 NRC 1418, 1431-32 (1984), aff’d, ALAB-813, 22 NRC 59 (1985). However, an 

Appeal Board held that a Licensing Board abused its discretion by denying intervenors 

the opportunity to conduct discovery of new information submitted by the applicant and 

admitted by the Board on a reopened record. The Appeal Board found that, although 

there might have been a need to conduct an expeditious hearing, it was improper to 

deny the intervenors the opportunity to conduct any discovery concerning the newly 

admitted information where it was not shown that the requested discovery would delay 

the hearing. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), 

ALAB-832, 23 NRC 135, 160-61 (1986), rev’d in part on other grounds, CLI-87-12, 

26 NRC 383 (1987). 

The Commission has expressly advised the Licensing Boards to see that the licensing 

process moves along at an expeditious pace, consistent with the demands of fairness, 

and the fact that a party has personal or other obligations or fewer resources than 

others does not relieve the party of its hearing obligations. Nor does it entitle the party 

to an extension of time for discovery absent a showing of good cause, as judged by the 

standards of 10 C.F.R. § 2.307 (formerly § 2.711). Texas Utilities Generating Co.

(Comanche Peak Steam Electric Station, Units 1 & 2), LBP-82-18, 15 NRC 598, 599 

(1982). 

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Under normal circumstances, motions for a stay of discovery should be filed with the 

Licensing Board rather than the Commission. See 10 C.F.R. § 2.323(a) (formerly 

§ 2.730(a)). The Commission has the authority to exercise its “inherent supervisory 

powers over adjudicatory proceedings” and to address the stay motion itself, rather 

than either dismiss it or refer it to the Licensing Board. Sequoyah Fuels Corporation 

and General Atomics (Gore, Oklahoma Site), CLI-94-9, 40 NRC 1, 7 n.1 (1994) (citing

Ohio Edison Co. (Perry Nuclear Power Plant, Unit 1), CLI-91-15, 34 NRC 269, 271 

(1991), reconsid. denied, CLI-92-6, 35 NRC 86 (1992)). 

A party seeking to extend discovery beyond a deadline may obtain an extension on the 

discovery period only by showing that there is good cause shown for why the deadline 

was not met. Georgia Power Co., et al. (Vogtle Electric Generating Plant, Units 1 & 2), 

LBP-94-16, 39 NRC 257, 260-61 (1994). 

A party is not excused from compliance with a Board’s discovery schedule simply 

because of the need to prepare for a related state court trial. Kerr-McGee Chemical 

Corp. (West Chicago Rare Earths Facility), LBP-85-46, 22 NRC 830, 832 (1985). 

Though the period for discovery may have long since terminated, at least one Appeal 

Board decision seems to indicate that a party may obtain discovery in order to support 

a motion to reopen a hearing provided that the party demonstrates with particularity 

that discovery would enable it to produce the needed materials. Vermont Yankee 

Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520, 524 

(1973). But see Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), 

CLI-85-7, 21 NRC 1104, 1106 (1985) and Louisiana Power and Light Co. (Waterford 

Steam Electric Station, Unit 3), CLI-86-1, 23 NRC 1, 6 (1986) where the Commission 

has made it very clear that a movant seeking to reopen the record is not entitled to 

discovery to support its motion. 

The question of Board management of discovery was addressed by the Commission in 

its Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 

455-456 (1981). The Commission stated that in virtually all cases individual Boards 

should schedule an initial conference with the parties to set a general discovery 

schedule immediately after contentions have been admitted. A Licensing Board may 

establish reasonable deadlines for the completion of discovery. Cleveland Electric 

Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), LBP-83-79, 18 NRC 1400, 

1401 (1983), citing Statement of Policy, supra, 13 NRC at 456. Although a Board may 

extend a discovery deadline upon a showing of good cause, a substantial delay 

between a discovery deadline and the start of a hearing is not sufficient, without more, 

to reopen discovery. Perry, supra, 18 NRC at 1401. 

An intervenor who has agreed to an expedited discovery schedule during a prehearing 

conference is considered to have waived its objections to the schedule once the 

hearing has started. Philadelphia Electric Co. (Limerick Generating Station, Units 1 

& 2), CLI-85-15, 22 NRC 184, 185 (1985); Philadelphia Electric Co. (Limerick 

Generating Station, Units 1 & 2), ALAB-845, 24 NRC 220, 251 (1986). 

2.12.2 Discovery Rules 

In general, the discovery rules as between all parties except the Staff follow the form of 

the Federal Rules of Civil Procedure in formal adjudicatory proceedings. The legal 

JUNE 2011 PREHEARING MATTERS 159
authorities and court decisions pertaining to Rule 26 of the Federal Rules of Civil 

Procedure provide appropriate guidelines for interpreting NRC discovery rules. AlliedGeneral Nuclear Services (Barnwell Fuel Receiving and Storage Station), LBP-77-13, 

5 NRC 489 (1977); Public Service Co. of New Hampshire (Seabrook Station, Units 1 

& 2), LBP-83-17, 17 NRC 490, 494-95 (1983), citing Toledo Edison Co. (Davis-Besse 

Nuclear Power Station), ALAB-300, 2 NRC 752, 760 (1975). 

If there is no NRC rule that parallels a Federal Rule of Civil Procedure, the Board is not 

restricted from applying the Federal Rule. While the Commission may have chosen to 

adopt only some of the Federal Rules of Practice to apply to all cases, it need not be 

inferred that the Commission intended to preclude a Licensing Board from following the 

guidance of the Federal Rules and decisions in a specific case where there is no 

parallel NRC rule and where that guidance results in a fair determination of an issue. 

Seabrook, supra, 17 NRC at 497. 

Rule 26(b)(4) differentiates between experts whom the party expects to call as 

witnesses and those who have been retained or specially employed by the party in 

preparation for trial. The Notes of Advisory Committee on Rules explain that discovery 

of expert witnesses is necessary, particularly in a complex case, to narrow the issues 

and eliminate surprise, but that purpose is not furthered by discovery of nonwitness 

experts. Seabrook, supra, 17 NRC at 497; Commonwealth Edison Co. (Braidwood 

Nuclear Power Station, Units 1 & 2), LBP-86-7, 23 NRC 177, 178-79 (1986) (discovery 

of a nonwitness expert permitted only upon a showing of exceptional circumstances). 

The filing of an affidavit as part of a non-record filing with a Licensing Board does not 

make an individual an expert witness. Texas Utilities Electric Co. (Comanche Peak 

Steam Electric Station, Units 1 & 2), LBP-87-18, 25 NRC 945, 947 (1987). 

A party may seek discovery of another party without the necessity of Licensing Board 

intervention. Where, however, discovery of a non-party is sought (other than by 

deposition), the party must request the issuance of a subpoena under Section 2.702. 

Pacific Gas and Electric Co. (Stanislaus Nuclear Project, Unit 1), ALAB-550, 

9 NRC 683, 690 (1979). 

Only those state agencies which are parties in NRC proceedings are required to 

respond to requests under 10 C.F.R. § 2.707 (formerly § 2.741) for the production of 

documents. In order to obtain documents from non-party state agencies, a party must 

file a request for a subpoena pursuant to 10 C.F.R. § 2.702 (formerly § 2.720). 

Kerr-McGee Chemical Corp. (West Chicago Rare Earths Facility), LBP-85-1, 

21 NRC 11, 21-22 (1985), citing Stanislaus, supra, 9 NRC at 683. 

Applicants are entitled to discovery against intervenors in order to obtain the 

information necessary for applicant to meet its burden of proof. This does not amount 

to shifting the burden of proof to intervenors. Pennsylvania Power & Light Co.

(Susquehanna Steam Electric Station, Units 1 & 2), ALAB-613, 12 NRC 317, 338 

(1980). 

Each co-owner of a nuclear facility has an independent responsibility, to the extent that 

it is able, to provide a Licensing Board with a full and accurate record and with 

complete responses to discovery requests. The majority owner must keep the minority 

owners sufficiently well informed so that they can fulfill their responsibilities to the 

PREHEARING MATTERS 160 JUNE 2011
Board. Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 

& 2), LBP-87-27, 26 NRC 228, 230 (1987). 

Intervenor may not directly seek settlement papers of the applicant through discovery. 

Rule 408 of the Federal Rules of Evidence provides that offers of settlement and 

conduct and statements made in the course of settlement negotiations are not 

admissible to prove the validity of a claim. 10 C.F.R. § 2.338 (formerly § 2.759) states 

a policy encouraging settlement of contested proceedings and requires all parties and 

boards to try to carry out the settlement policy. Requiring a party to produce its 

settlement documents because they are settlement documents would be inconsistent 

with this policy. Florida Power & Light Co. (St. Lucie Plant, Unit 2), LBP-79-4, 

9 NRC 164, 183-184 (1979). 

A plan to seek evidence primarily through discovery is a permissible approach for an 

intervenor to take. Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), 

LBP-82-116, 16 NRC 1937, 1943 (1982). 

Lack of knowledge is always an adequate response to discovery. A truthful “don’t 

know” response is not sanctionable as a default in making discovery. Duke Power Co.

(Catawba Nuclear Station, Units 1 & 2), LBP-82-116, 16 NRC 1937, 1945, 1945 n.3 

(1982). 

Discovery of the foundation upon which a contention is based is not only clearly within 

the realm of proper discovery, but also is necessary for an applicant’s preparation for 

hearing. Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), 

LBP-83-17, 17 NRC 490, 494 (1983); Kerr-McGee Chemical Corp. (West Chicago 

Rare Earths Facility), LBP-86-4, 23 NRC 75, 81 (1986). 

A party’s need for discovery outweighs any risk of harm from the potential release of 

information when the NRC Staff has indicated that no ongoing investigation will be 

jeopardized, when all identities and identifying information are excluded from 

discovery; and when all other information is discussed under the aegis of a protective 

order. Consumers Power Co. (Midland Plant, Units 1 & 2), LBP-83-53, 18 NRC 282, 

288 (1983), reconsid. denied, LBP-83-64, 18 NRC 766, 768 (1983), aff’d, ALAB-764, 

19 NRC 633 (1984). 

Although a Demand for Information issued by the NRC is an important event that may 

affect an individual’s career, the pendency of such a demand is not a reason to 

postpone a scheduled deposition. Where the individuals involved have known about 

the facts of the case for years, further preparation is not necessary for them to tell the 

truth. Georgia Power Co., et al. (Vogtle Electric Generating Plant, Units 1 & 2), 

LBP-94-14, 39 NRC 251 (1994). 

2.12.2.1 Construction of Discovery Rules 

For discovery between parties other than the Staff, the discovery rules are to be 

construed very liberally. Commonwealth Edison Co. (Zion Station, Units 1 & 2), 

ALAB-185, 7 AEC 240 (1974); Illinois Power Co. (Clinton Power Station, Unit 1), 

LBP-81-61, 14 NRC 1735, 1742 (1981). 

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Where a provision of the NRC discovery rules is similar or analogous to one of the 

federal rules, judicial interpretations of that federal rule can serve as guidance for 

interpreting the particular NRC rule. Detroit Edison Co. (Enrico Fermi Atomic Power 

Plant, Unit 2), LBP-78-37, 8 NRC 575, 581 (1978). 

2.12.2.2 Scope of Discovery 

The scope of discovery is usually quite broad, as indicated on the face of NRC 

rules. Duke Energy Corp. (Catawba Nuclear Station, Units 1 & 2), CLI-04-29, 

60 NRC 417, 421 n.14 (2004), reconsid. denied, CLI-04-37, 60 NRC 646 (2004) 

(referencing 10 C.F.R. § 2.740(b)(1) [now 10 C.F.R. § 2.705(b)(1)]). 

The test as to whether particular matters are discoverable is one of “general 

relevancy.” This test will be easily satisfied unless it is clear that the evidence 

sought can have no possible bearing on the issues. Commonwealth Edison Co.

(Zion Station, Units 1 & 2), ALAB-185, 7 AEC 240 (1974). While the “general 

relevancy” test is fairly liberal, it does not permit the discovery of material far beyond 

the scope of issues to be considered in a proceeding. Thus, parties may obtain 

discovery only of information which is relevant to the controverted subject matter of 

the proceeding, as identified in the prehearing order, or which is likely to lead to the 

discovery of admissible evidence. This rule applies as much to Part 70 licenses for 

special nuclear material as to Part 50 licenses for construction of utilization facilities. 

Allied General Nuclear Services (Barnwell Fuel Receiving and Storage Station), 

LBP-77-13, 5 NRC 489 (1977). However, when a lawyer has asked questions that 

are properly within the scope of the proceeding, objections to letting the witness 

answer are an obstruction to the discovery process. Georgia Power Co., et al.

(Vogtle Electric Generating Plant, Units 1 & 2), LBP-94-15, 39 NRC 254, 263 

(1994). 

A motion to compel discovery need not seek information which would be admissible 

per se in an adjudicatory proceeding. The motion need only request information 

which reasonably could lead to admissible evidence. Safety Light Corp.

(Bloomsburg Site Decontamination), LBP-92-3A, 35 NRC 110, 111-112 (1992). 

An intervenor may obtain information about other reactors in the course of 

discovery. Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 

& 2), LBP-82-102, 16 NRC 1597, 1601 (1982). 

An intervenor’s motion which sought to preserve deficient components which the 

applicant was removing from its plant was denied because the motion did not 

comply with the requirements for (1) a stay, or (2) a motion for discovery, since it did 

not express an intention to obtain information about the components. The questions 

raised in the intervenor’s motion, including the possible need for destructive 

evaluation of the components, were directed to the adequacy and credibility of the 

applicant’s evidence concerning the components. Texas Utilities Electric Co.

(Comanche Peak Steam Electric Station, Units 1 & 2), LBP-85-32, 22 NRC 434, 438 

n.6 (1985). 

In general, the discovery tools are the same as or similar to those provided for by 

the Federal Rules of Civil Procedure. The Commission’s regulations permit 

depositions and requests for production of documents between intervenors and 

PREHEARING MATTERS 162 JUNE 2011
applicants without leave of the Commission and without any showing of good cause 

(10 C.F.R. §§ 2.706, 2.707 (formerly §§ 2.740a, 2.741)). The regulations 

(10 C.F.R. § 2.706 (formerly § 2.740b)) specifically provide for interrogatories similar 

to those addressed by Rule 33 of the Federal Rules, although such interrogatories 

are not available for use against non-parties. The scope of discovery under the 

Commission’s Rules of Practice is similar to discovery under the Federal Rules of 

Civil Procedure. Pacific Gas and Electric Co. (Stanislaus Nuclear Project, Unit 1), 

LBP-78-20, 7 NRC 1038, 1040 (1978). 

Since written answers to interrogatories under oath as provided by 

10 C.F.R. § 2.706 (formerly § 2.740(b)) are binding upon a party and may be used 

in the same manner as depositions, the authority of the person signing the answers 

to, in fact, provide such answers may be ascertained through discovery. 

Statements of counsel in briefs or arguments are not sufficient to establish this 

authority. Pacific Gas & Electric Co. (Stanislaus Nuclear Project, Unit 1), LBP-78-

20, 7 NRC 1038, 1045 (1978). 

If a party has insufficient information to answer interrogatories, a statement to that 

effect fulfills its obligation to respond. If the party subsequently obtains additional 

information, it must supplement its earlier response to include such newly acquired 

information, 10 C.F.R. § 2.705 (e) (formerly § 2.740(c)). Pennsylvania Power and 

Light Co. (Susquehanna Steam Electric Station, Units 1 and 2), LBP-80-18, 

11 NRC 906, 911 (1980). 

To determine subject matter relevance for discovery purposes, it is first necessary to 

examine the issue involved. In an antitrust proceeding, a discovery request will not 

be denied where the interrogatories are relevant only to proposed antitrust license 

conditions and not to whether a situation inconsistent with the antitrust laws exists. 

Pacific Gas and Electric Co. (Stanislaus Nuclear Project, Unit 1), LBP-78-20, 

7 NRC 1038, 1040 (1978). 

In evaluating an intervenor’s discovery request for guidance documents, the fact 

that the applicant did not rely on the documents is not controlling; if the guidance 

documents are indeed generic and clarify governing regulatory requirements, they 

could be relevant for supporting an intervenor’s contentions. See Duke Energy 

Corp. (Catawba Nuclear Station, Units 1 & 2), CLI-04-29, 60 NRC 417, 423 (2004), 

reconsid. denied, CLI-04-37, 60 NRC 646 (2004). 

At least one Licensing Board has held that, in the proper circumstances, a party’s 

right to take the deposition of another party’s expert witness may be made 

contingent upon the payment of expert witness fees by the party seeking to take the 

deposition. Public Service Co. of Oklahoma (Black Fox Station, Units 1 & 2), 

LBP-77-18, 5 NRC 671, 673 (1977). 

Intervenor has the burden of demonstrating that the benefit of a deposition of a 

seriously ill person outweighs the burden, given the importance of the issues at 

stake in the litigation and the importance of the proposed discovery in resolving the 

issues. Georgia Power Co. (Vogtle Electric Generating Plant, Units 1 & 2), 

LBP-94-24, 40 NRC 83, 85 (1994). 

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The lawyer of an ill individual sought as subject of a deposition may not assert that 

the deposition would impose an undue burden unless the proposed subject seeks to 

be protected or there is some reason to question the rationality behind the person’s 

willingness to be deposed. Vogtle, supra, 40 NRC at 86. The Licensing Board 

establishes conditions under which a voluntary agreement may be reached 

concerning the deposition of a seriously ill individual. Id.

Based on 10 C.F.R. §§ 2.702(d) and 2.706(a)(8) (formerly §§ 2.720(d) and 

§ 2.740a(h)), fees for subpoenas and the fee for deponents, respectively, are to be 

paid by the party at whose instance the subpoena was issued, and the deposition 

was held. Pursuant to 10 C.F.R. § 2.706(a)(4) (formerly § 2.740a(d)), objections on 

questions of evidence at a deposition are simply to be noted in short form, without 

argument. The relief of a stay of a hearing to permit deposition of witnesses is 

inappropriate in the absence of any allegation of prejudice. Each party to an NRC 

proceeding is not required to convene its own deposition if it seeks to question a 

witness as to any matter beyond the scope of those issues raised on direct by the 

party noticing the deposition. No party has a proprietary interest in a deposition; 

therefore, no party has a proprietary interest in a subpoena issued to a deponent. 

Cincinnati Gas and Electric Co. (William H. Zimmer Nuclear Power Station, Unit 1), 

LBP-82-47, 15 NRC 1538, 1544-1546 (1982). 

The Licensing Board, as provided by 10 C.F.R. 2.705(b)(2), may and should, when 

not inconsistent with fairness to all parties, limit the extent or control the sequence of 

discovery to prevent undue delay or imposition of an undue burden on any party. 

Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), CLI-79-8, 

10 NRC 141, 147-148 (1979); Sequoyah Fuels Corporation and General Atomics

(Gore, Oklahoma Site), CLI-94-9, 40 NRC 1, 7 (1994). Thus, a Licensing Board 

may issue a protective order which limits the representatives of a party in a 

proceeding who may conduct discovery of particular documents. Texas Utilities 

Electric Co. (Comanche Peak Steam Electric Station, Units 1 & 2), ALAB-870, 

26 NRC 71, 75 (1987). 

Consistent with Board management of discovery under 10 C.F.R. § 2.319(g) 

(formerly § 2.718(e)), discovery may be limited to the admitted bases of a contention 

during the first phase of a proceeding. After the hearing on the first phase, the 

Board can determine whether it has a complete record for decision or whether 

further discovery is necessary. [The actual scope of a contention may be broader 

than its specifically pleaded bases.] Georgia Power Co., et al. (Vogtle Electric 

Generating Plant, Units 1 & 2), LBP-93-15, 38 NRC 20 (1993). 

A party is only required to reveal information in its possession or control. A party 

need not conduct extensive independent research, although it may be required to 

perform some investigation to determine what information it actually possesses. 

Pennsylvania Power and Light Co. (Susquehanna Steam Electric Station, Units 1 

& 2), ALAB-613, 12 NRC 317, 334 (1980). This holding has been codified in the 

Rules of Practice at 10 C.F.R. § 2.705(b)(5) (formerly § 2.740(b)(3)) which also 

prohibits the use of interrogatories which request a party to explain the reasons why 

the party did not use alternative data, assumptions, and analyses in developing its 

position on a matter in the proceeding. 54 Fed. Reg. 33,168, 33,181 

(Aug. 11, 1989). 

PREHEARING MATTERS 164 JUNE 2011
A party is not required to search the record for information in order to respond to 

interrogatories where the issues that are the subject of the interrogatories are 

already defined in the record and the requesting party is as able to search the 

record as the party from whom discovery is requested. Texas Utilities Electric Co.

(Comanche Peak Steam Electric Station, Units 1 & 2), LBP-87-18, 25 NRC 945, 948 

(1987). 

2.12.2.3 Requests for Discovery During Hearing 

Requests for background documents from a witness, to supply answers to crossexamination questions which the witness is unable to answer, cannot be denied 

solely because the material had not been previously requested through discovery. 

However, it can be denied where the request will cause significant delay in the 

hearing and the information sought has been substantially supplied through other 

testimony. Illinois Power Co. (Clinton Nuclear Station, Units 1 & 2), ALAB-340, 

4 NRC 27 (1976). 

2.12.2.4 Privileged Matter 

Pursuant to 10 C.F.R. § 2.705(b)(1) (formerly § 2.740(b)(1)), parties may generally 

obtain discovery regarding any matter, not privileged, which is relevant to the 

subject matter in the proceeding. While the Federal Rules of Civil Procedure are not 

themselves directly applicable to practice before the Commission, judicial 

interpretations of a Federal Rule can serve as guidance for the interpretation of a 

similar or analogous NRC discovery rule. By choosing to model Section 2.705(b) 

(formerly Section 2.740(b)) after Federal Rule 26(b), without incorporating specific 

limitations, the Commission implicitly chose to adopt those privileges which have 

been recognized by the federal courts. Shoreham, supra, 16 NRC at 1157. 

The existence of a privileged matter is in tension with the concept of civil discovery. 

Therefore, most privileges are qualified, rather than absolute. Courts frequently 

engage in a fact-driven balancing in order to decide if an asserted privilege should 

trump a party’s interest in discovery. The greater the interest protected by the 

privilege, the more compelling the need and other circumstances must be to 

overcome it. David Geisen, LBP-06-25, 64 NRC 367, 376-77 (2006). 

As under the Federal Rules of Civil Procedure, privileged or confidential material 

may be protected from discovery under Commission regulations. To obtain a 

protective order (10 C.F.R. § 2.705(c)), it must be demonstrated that: 

 (1) the information in question is of a type customarily held in confidence by 

 its originator; 

 (2) there is a rational basis for having customarily held it in confidence; 

 (3) it has, in fact, been kept in confidence; and 

 (4) it is not found in public sources. 

Kansas Gas & Electric Co. (Wolf Creek Nuclear Generating Station, Unit 1), 

ALAB-327, 3 NRC 408 (1976). See also Section 6.23.3. 

The claimant of a privilege must bear the burden of proving that it is entitled to such 

protection, including pleading it adequately in its response. Long Island Lighting Co.

JUNE 2011 PREHEARING MATTERS 165
(Shoreham Nuclear Power Station, Unit 1), LBP-82-82, 16 NRC 1144, 1153 (1982), 

citing In re Fischel, 557 F.2d 209 (9th Cir. 1977); Public Service Co. of New 

Hampshire (Seabrook Station, Units 1 & 2), LBP-83-17, 17 NRC 490, 495 (1983); 

see also United States v. Construction Products Research, Inc., 73 F.3d 464, 473 

(1996). 

The party asserting the privilege regarding document sought in administrative 

agency investigation must establish the essential elements of the privilege. United 

States v. Construction Products Research, Inc., 73 F.3d 464, 473 (1996). See

Shoreham, supra, 16 NRC at 1153. Intervenors’ mere assertion that the material it 

is withholding constitutes attorney work product is insufficient to meet that burden. 

Seabrook, supra, 17 NRC at 495. Louisiana Energy Services (Claiborne 

Enrichment Center), LBP-93-3, 37 NRC 64, 69 (1993). 

A party objecting to the production of documents on grounds of privilege has an 

obligation to specify in its response to a document request those same matters 

which it would be required to set forth in attempting to establish “good cause” for the 

issuance of a protective order, i.e., there must be a specific designation and 

description of (1) the documents claimed to be privileged, (2) the privilege being 

asserted, and (3) the precise reasons why the party believes the privilege to apply to 

such documents. Long Island Lighting Co. (Shoreham Nuclear Power Station, 

Unit 1), LBP-82-82, 16 NRC 1144, 1153 (1982); Duke Power Co. (Catawba Nuclear 

Station, Units 1 & 2), LBP-82-116, 16 NRC 1937, 1942 (1982). 

Claims of privilege must be specifically asserted with respect to particular 

documents. Privileges are not absolute and may or may not apply to a particular 

document, depending upon a variety of circumstances. Shoreham, supra, 

16 NRC at 1153, citing United States v. El Paso Co., 682 F.2d 530, reh’q denied, 

688 F.2d 840 (1982), cert. denied, 104 S. Ct. 1927 (1984); United States v. Davis, 

636 F.2d 1028, 1044 n.20 (5th Cir. 1981). 

Under NRC rules, it is not clear when a balancing of interests is required before 

permitting disclosure of a report that is claimed to contain trade secrets or privileged 

or confidential commercial or financial information. The Federal Rules of Civil 

Procedure clearly permit a balance. See Fed R. Civ. P. 26(c)(7). NRC rules include 

a comparable balancing test, see 10 C.F.R. § 2.705(c)(1)(vi) (formerly 

§ 2.740(c)(6)), but this test is subject to the provisions of 10 C.F.R. § 2.390 (formerly 

§ 2.790). In particular, the balancing test appears to be overridden by Section 

2.390(b)(6). Cf. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, 

Units 1 & 2), CLI-80-24, 11 NRC 775 (1980) (access by intervenors to security plan 

permitted subject to protective order). Even though Institute of Nuclear Power 

Operations reports to the NRC fall within the FOIA exemption for commercial or 

financial information obtained from a person privileged or confidential as set forth 

under NRC rules in 10 C.F.R. § 2.390(a)(4), Critical Mass Energy Project v. NRC, 

975 F.2d 871 (D.C. Cir. 1992), cert denied, 507 U.S. 984 (1993), they may be 

provided under a protective order in accordance with 10 C.F.R. 2.390(b)(6). Pacific 

Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), LBP-93-13, 

38 NRC 11, 14-16 (1993). 

Even where a First Amendment or common-law privilege is found applicable to a 

party or non-party resisting discovery, that privilege is not absolute. A Licensing 

PREHEARING MATTERS 166 JUNE 2011
Board must balance the value of the information sought to be obtained with the 

harm caused by revealing the information. Consumers Power Co. (Midland Plant, 

Units 1 & 2), LBP-83-53, 18 NRC 282, 288 (1983), reconsid. denied, LBP-83-64, 18 

NRC 766, 768 (1983), aff’d, ALAB-764, 19 NRC 633, 641 (1984). 

It is not sufficient for a party asserting certain documents to be privileged from 

discovery to await a motion to compel from the party seeking discovery prior to the 

asserting party setting forth its assertions of privilege and specifying those matters 

which it claims to be privileged. Shoreham, supra, 16 NRC at 1153. 

2.12.2.4.1 Attorney-Client Privilege 

The attorney-client privilege protects from discovery confidential communications 

from a client to an attorney made to enable the attorney to provide informed legal 

advice. The privilege is applicable when a corporation is the client. Georgia 

Power Co., et al. (Vogtle Electric Generating Plant, Units 1 & 2), CLI-95-15, 

42 NRC 181, 185 (1995). 

The purpose of the rule has been described as to protect “[s]ubject matter that 

relates to the preparation, strategy, and appraisal of the strengths and 

weaknesses of an action, or to the activities of the attorneys involved, rather than 

to the underlying evidence....” Louisiana Energy Services, L.P. (Claiborne 

Enrichment Center), LBP-93-3, 37 NRC 64, 68-69 (1993) (citing 4 Moore’s 

Federal Practice ¶26.64[I] (2d ed. 1191), at 26-349. 

Statements from an attorney to the client are privileged only if the statements 

reveal, either directly or indirectly, the substance of a confidential communication 

by the client. Long Island Lighting Co. (Shoreham Nuclear Power Station, 

Unit 1), LBP-82-82, 16 NRC 1144, 1158 (1982), citing In re Fischel, 557 F.2d 209 

(9th Cir. 1977); Ohio-Sealy Mattress Manufacturing Co. v. Kaplan, 90 F.R.D. 21, 

28 (N.D. Ill. 1980). An attorney’s involvement in, or recommendation of, a 

transaction does not place a cloak of secrecy around all incidents of such a 

transaction. Shoreham, supra, 16 NRC at 1158, citing Fischel, 557 F.2d at 212. 

The attorney-client privilege does not protect against discovery of underlying 

facts from their source, merely because those facts have been communicated to 

an attorney. Shoreham, supra, 16 NRC at 1158, citing Upjohn Co. v. United 

States, 449 U.S. 383, 395 (1981), Georgia Power Co., et al. (Vogtle Electric 

Generating Plant, Units 1 & 2), CLI-95-15, 42 NRC 181, 188 (1995). 

The attorney-client privilege may not be asserted where there is a conflict of 

interests between various clients represented by the same attorney. There is no 

attorney-client relationship unless the attorney is able to exercise independent 

professional judgment on behalf of the interests of a client. Texas Utilities 

Electric Co. (Comanche Peak Steam Electric Station, Units 1 & 2), LBP-84-50, 

20 NRC 1464, 1468-1469 (1984), citing Rule 1.7 of the American Bar Association 

(ABA) Model Rules of Professional Conduct. 

Interrogatories that seek the disclosure of the factual bases and legal 

requirements that underlie contentions constitute proper discovery of the 

intervenor so long as the interrogatories do not seek the “mental impressions, 

JUNE 2011 PREHEARING MATTERS 167
conclusions, opinions or legal theories of an attorney or other representative of a 

party concerning the proceeding.” 10 C.F.R. § 2.705(b)(4) (formerly 

§ 2.740(b)(2)). This rule was adopted from Rule 26(b)(3) of the Federal Rules of 

Civil Procedure. Where an NRC Rule of Practice is based on a Federal Rule of 

Civil Procedure, judicial interpretations of that Federal Rule can serve as 

guidance for the interpretation of the analogous rule. Louisiana Energy Services

(Claiborne Enrichment Center), LBP-93-3, 37 NRC 64, 68-69 (1993) (citing

Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), LBP-83-

17, 17 NRC 490, 494-95 (1983). See also Long Island Lighting Co. (Shoreham 

Nuclear Power Station, Unit 1), LBP-82-82, 16 NRC 1144, 1159-62 (1982). 

When a claim of attorney-client privilege is made for a document containing a 

simple report of facts, the ASLB may examine the document further in order to 

ascertain whether granting privilege to the document is consistent with the 

purposes of the attorney-privilege. Georgia Power Co. (Vogtle Electric 

Generating Plant, Units 1 & 2), LBP 95-15, 42 NRC 51 (1995); rev’d on other 

grounds CLI-95-15, 42 NRC 181 (1995). 

Proof at a hearing that clients had been “hounded” or otherwise improperly 

treated could overcome claim of privilege, either under the work product privilege 

or the attorney-client privilege. Georgia Power Co., et al. (Vogtle Electric 

Generating Plant, Units 1 & 2), LBP-93-18, 38 NRC 121, 125-126 (1993). 

To claim the attorney-client privilege, it must be shown that: (1) the asserted 

holder of the privilege is or sought to become a client; (2) the person to whom a 

communication was made (a) is a member of the bar of a court, or his 

subordinate and (b) in connection with the communication is acting as a lawyer; 

(3) the communication relates to a fact of which the attorney was informed (a) by 

his client, (b) without the presence of strangers, (c) for the purpose of securing 

primarily either (i) an opinion of law or (ii) legal services or (iii) legal assistance in 

some legal proceeding, and (d) not for the purpose of committing a crime or tort; 

and (4) the privilege has been (a) claimed and (b) not waived by the client. 

Consumers Power Co. (Midland Plant, Units 1 & 2), LBP-83-70, 18 NRC 1094, 

1098 (1983), citing United States v. United Shoe Machinery Corp., 

89 F.Supp. 357, 358-59 (D. Mass. 1950). 

The fact that a document is authored by in-house counsel, rather than by an 

independent attorney is not relevant to a determination of whether such a 

document is privileged. Long Island Lighting Co. (Shoreham Nuclear Power 

Station, Unit 1), LBP-82-82, 16 NRC 1144, 1158 (1982), citing O’Brien v. Board 

of Education of City School District of New York, 86 F.R.D. 548, 549 

(S.D.N.Y. 1980). 

To invoke the attorney-client privilege, a party must demonstrate that there was: 

(1) a communication between client and counsel, which (2) was intended to be 

and was in fact kept confidential, and (3) made for the purpose of obtaining or 

providing legal advice. U.S. v. Construction Products Research, Inc., 

73 F.3d 464, 473 (2nd Cir. 1996). 

The attorney-client privilege is only available as to communications revealing 

confidences of the client or seeking legal advice. Shoreham, supra, 

PREHEARING MATTERS 168 JUNE 2011
16 NRC at 1158, citing SCM Corp. v. Xerox Corp., 70 F.R.D. 508 (D. Conn.), 

interlocutory appeal dismissed, 534 F.2d 1031 (2d Cir. 1976). Even if some 

commonly known factual matters were included in the discussion, or non-legal 

advice was exchanged, where the primary purpose of a meeting was the receipt 

of legal advice, the entire contents thereof are protected by privilege. Midland, 

supra, 18 NRC at 1103, citing Barr Marine Products Co. v. Borg-Warner Corp., 

84 F.R.D. 631, 635 (E.D. Pa. 1979); United States v. United Shoe Machinery 

Corp., 89 F.Supp. 357, 359 (D. Mass. 1950). 

An attorney’s representation, that all communications between the attorney and 

the party were for the purpose of receiving legal advice, is sufficient for an 

assertion of attorney-client privilege. Consumers Power Co. (Midland Plant, 

Units 1 & 2), LBP-83-53, 18 NRC 282, 285 (1983), reconsid. denied, LBP-83-64, 

18 NRC 766 (1983). 

Communications from the attorney to the client should be privileged only if it is 

shown that the client had a reasonable expectation in the confidentiality of the 

statement; or, put another way, if the statement reflects a client communication 

that was necessary to obtain informed legal advice [and] which might not have 

been made absent the privilege. Shoreham, supra, 16 NRC at 1159, citing

Ohio-Sealy Mattress Manufacturing Co. v. Kaplan, 90 F.R.D. 21, 28 

(N.D. Ill. 1980). 

Where legal advice is sought from an attorney in good faith by one who is or is 

seeking to become a client, the fact that the attorney is not subsequently retained 

in no way affects the privileged nature of the communications between them. 

Consumers Power Co. (Midland Plant, Units 1 & 2), LBP-83-70, 18 NRC 1094 

(1983). 

The attorney-client privilege was not waived by the presence of third persons at a 

meeting between client and attorney, where the situation involved 

representatives of two joint clients seeking advice from the attorney of one such 

client about common legal problems. Midland, supra, 18 NRC at 1100. 

Where the date of a meeting, its attendees, its purpose, and its broad general 

subject matter are revealed, the attorney-client privilege was not waived as to the 

substance of the meeting. Midland, supra, 18 NRC at 1102. 

Key to application of the attorney-client privilege is a showing that the 

communication was made for the corporation to obtain legal advice, that it was 

made confidentially, and that it was not disseminated beyond those with a need 

to know. Georgia Power Co., et al. (Vogtle Electric Generating Plant, Units 1 

& 2), CLI-95-15, 42 NRC 181, 187 (1995). 

Under appropriate circumstances, the attorney-client privilege may extend to 

certain communications from employees to corporate counsel. However, not 

every employee who provides a privileged communication is thereby a “client” 

represented by corporate counsel, or a “party” to any pending legal dispute, for 

purposes of ABA Disciplinary Rule 7-104. Duke Power Co. (Catawba Nuclear 

Station, Units 1 & 2), CLI-83-31, 18 NRC 1303, 1305 (1983), citing Upjohn Co. v. 

United States, 449 U.S. 383 (1981). Upjohn, supra, did not overturn the wellJUNE 2011 PREHEARING MATTERS 169
established principle that counsel should be at liberty to approach witnesses for 

an opposing party. Catawba, supra, 18 NRC at 1305, citing Vega v. 

Bloomsburgh, 427 F.Supp. 593 (D. Mass. 1977). 

When the client is a corporation the attorney-client privilege applies to 

communications by any corporate employee regardless of position when the 

communications concern matters within the scope of the employee’s corporate 

duties and the employee is aware that the information is being furnished to 

enable the attorney to provide legal advice to the corporation. Georgia Power 

Co. et al, (Vogtle Electric Generating Plant, Units 1 & 2), LBP-93-18, 

38 NRC 121, 124 (1993), citing Upjohn Co. v. United States, 449 U.S. 383, 

396-97 (1981). The attorney-client privilege belongs to the client, not to the 

lawyer. Therefore, a client may waive the privilege, either through an express or 

implied waiver. Daryl M. Shapiro, CLI-08-6, 67 NRC 179, 182 (2008). While 

attorney-client communications during the course of an internal investigation are 

usually privileged (see Upjohn), the client can waive the Upjohn privilege by 

submitting the internal report to the NRC. Shapiro, CLI-08-6, 67 NRC at 182. 

Note that for this waiver to occur, the submission of the report must be voluntary. 

Shapiro, CLI-08-6, 67 NRC at 183. 

Not every communication by an employee to counsel is privileged. 

Communications made for business or personal advice are not covered by the 

privilege. Privileged communication concerns matters within the scope of the 

employee’s duties. Georgia Power Co., et al. (Vogtle Electric Generating Plant, 

Units 1 & 2), CLI-95-15, 42 NRC 181, 187 (1995). 

When the client is a corporation, the power to waive the attorney-client privilege 

rests with the corporation’s management and is normally exercised by its officers 

and directors. Vogtle, LBP-93-18, 38 NRC 121, 126 (1993) supra, citing In re 

Grand Jury Subpoenas, 89-3 and 89-4, John Doe 89-129 v. Under Seal, 

902 F.2d. 244, 248 (4th Cir. 1990). 

Drafts of canned testimony not yet filed by a party are not subject to discovery. 

Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), 

LBP-75-28, 1 NRC 513, 514 (1975). 

2.12.2.4.2 Identity of Confidential Informants 

See Protecting the Identity of Allegers and Confidential Sources; Policy 

Statement, 61 Fed. Reg. 25,924 (May 23, 1996). 

An interrogatory seeking the identity and professional qualifications of persons 

relied upon by intervenors to review, analyze and study contentions and issues in 

a proceeding and to provide the bases for contentions is proper discovery. Such 

information is not privileged and is not a part of an attorney’s work product even 

though the intervenor’s attorney solicited the views and analyses of the persons 

involved and has the sole knowledge of their identity. General Electric Co.

(Vallecitos Nuclear Center, General Electric Test Reactor), LBP-78-33, 

8 NRC 461, 464-468 (1978). 

PREHEARING MATTERS 170 JUNE 2011
The Government enjoys a privilege to withhold from disclosure the identity of 

persons furnishing information about violations of law to officers charged with 

enforcing the law. Rovario v. United States, 353 U.S. 53, 59 (1957), cited in

Houston Lighting and Power Co. (South Texas Project, Units 1 & 2), ALAB-639, 

13 NRC 469, 473 (1981). This applies not only in criminal but also civil cases, 

In re United States, 565 F.2d 19, 21 (1977), cert. denied sub nom. Bell v. 

Socialist Workers Party, 436 U.S. 962 (1978), and in Commission proceedings 

as well, Northern States Power Co. (Monticello Plant, Unit 1), ALAB-16, 

4 AEC 435, aff’d by the Commission, 4 AEC 440 (1970); 10 C.F.R. §§ 2.709(e), 

2.390(a)(7) (formerly §§ 2.744(d), 2.790(a)(7)); Texas Utilities Generating Co.

(Comanche Peak Steam Electric Station, Units 1 & 2), ALAB-714, 17 NRC 86, 91 

(1983); and is embodied in FOIA, 5 USC 552(b)(7)(D). The privilege is not 

absolute; where an informer’s identity is (1) relevant and helpful to the defense of 

an accused, or (2) essential to a fair determination of a cause (Rovario, supra) it 

must yield. However, the Appeal Board reversed a Licensing Board’s order to 

the Staff to reveal the names of confidential informants (subject to a protective 

order) to intervenors as an abuse of discretion, where the Appeal Board found 

that the burden to obtain the names of such informants is not met by intervenor’s 

speculation that identification might be of some assistance to them. To require 

disclosure in such a case would contravene NRC policy in that it might jeopardize 

the likelihood of receiving future similar reports. South Texas, supra. 

There may be a limited privilege for the identity of individuals who have expressly 

asked or been promised anonymity in coming forward with information 

concerning safety-related problems at a nuclear plant. Texas Utilities Generating 

Co. (Comanche Peak Steam Electric Station, Units 1 & 2), LBP-82-59, 

16 NRC 533, 537 (1982). 

When the NRC Staff seeks the disclosure of the identities of sources of 

information alleging public health and safety violations at a facility, the Staff must 

explore any possible alternative means of obtaining the requested information 

from the individuals in order to protect their confidentiality and to minimize the 

intrusion into their First Amendment association rights. Richard E. Dow, 

CLI-91-9, 33 NRC 473, 479-80 (1991), citing United States v. Garde, 

673 F.Supp. 604, 607 (D.D.C. 1987). 

In determining whether or not to issue a protective order to protect the 

confidentiality or to limit the disclosure of the identities of prospective witnesses, 

a Board will weigh the benefit of encouraging the testimony of such witnesses 

against the detriment of inhibiting public access to that information and the 

cumbersome procedures necessitated by a protective order. Commonwealth 

Edison Co. (Braidwood Nuclear Power Station, Units 1 & 2), LBP-85-40, 

22 NRC 759, 763 (1985). 

Even where an informer’s qualified privilege exists, it will fail in light of the 

Board’s need for the particular information in informed decisionmaking. Texas 

Utilities Generating Co. (Comanche Peak Steam Electric Station, Units 1 & 2), 

LBP-82-59, 16 NRC 533, 538 (1982). 

Security plans are not “classified,” and are discoverable in accordance with the 

provisions of 10 C.F.R. § 2.390(d) (formerly § 2.790(d)). However, they are 

JUNE 2011 PREHEARING MATTERS 171
sensitive documents and are not to be made available to the public at large. 

Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), 

ALAB-410, 5 NRC 1398, 1402 (1977). See Louisiana Energy Services, L.P.

(Claiborne Enrichment Center), LBP-92-15A, 36 NRC 5, 11 (1992). In order to 

discover such plans, (1) the moving party must demonstrate that the plan or a 

portion of it is relevant to the party’s contentions; (2) the release of the plant 

security plan must usually be subject to a protective order; and (3) no witness 

may review the plan until he is first qualified as an expert with sufficient 

competence to evaluate it. Id. Only those portions of a security plan which are 

both relevant and necessary for the litigation of a party’s contentions are subject 

to discovery. Id. at 1405. 

2.12.2.4.3 FOIA Exemptions – Executive/Deliberative Process Privilege 

FOIA does not establish new government privileges against discovery. 

Consumers Power Co. (Palisades Nuclear Plant), ALJ-80-1, 12 NRC 117, 121 

(1980). 

The Commission’s rules on discovery have incorporated the exemptions 

contained in the FOIA. Id; David Geisen, LBP-06-25, 64 NRC 367, 380 (2006). 

If information would be withholdable under FOIA, then it must be analyzed 

according to the three factors in 10 C.F.R. § 2.709(d), and in the case of the 

deliberative process privilege, the overriding need test. This analysis will 

determine whether or not the information is discoverable. David Geisen, 

LBP-06-25, 64 NRC 367, 380 (2006). 

Section 2.390 of the Rules of Practice is the NRC’s promulgation in obedience to 

the FOIA. Id. at 120. The Commission, in adopting the standards of Exemption 

5, and “necessary to a proper decision” as its document privilege standard under 

10 C.F.R. § 2.709(e) (formerly § 2.744(d)), has adopted traditional work 

product/executive privilege exemptions from disclosure. Id. at 123. The 

Government is no less entitled to normal privilege than is any other party in civil 

litigation. Id. at 127. 

The executive or deliberative process privilege protects from discovery 

governmental documents reflecting advisory opinions, recommendations, and 

deliberations comprising part of a process by which governmental decisions and 

policies are formulated. Long Island Lighting Co. (Shoreham Nuclear Power 

Station, Unit 1), ALAB-773, 19 NRC 1333, 1341 (1984), citing Carl Zeiss Stiftung 

v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318 (D.D.C. 1966), aff’d, 384 F.2d 979 

(D.C. Cir.), cert. denied, 389 U.S. 952 (1967); Georgia Power Co., et al. (Vogtle 

Electric Generating Plant, Units 1 & 2), CLI-94-5, 39 NRC 190, 197 (1994); 

Entergy Nuclear Vermont Yankee, L.L.C. and Entergy Nuclear Operations, Inc.

(Vermont Yankee Nuclear Power Station), LBP-05-33, 62 NRC 828, 843 (2005). 

A government decisionmaker will not be compelled to testify about the mental 

processes and methods by which a decision was made, unless there is a clear 

showing of misconduct or wrongdoing. Franklin Savings Association v. Ryan, 

922 F.2d 209, 211-212 (4th Cir. 1991), citing United States v. Morgan, 

313 U.S. 409 (1941). 

PREHEARING MATTERS 172 JUNE 2011
Documents compiled in investigations and inspections whose production could 

reasonably be expected to interfere with enforcement proceedings may be 

exempt from disclosure under 10 C.F.R. § 2,390(a)(7)(i) (formerly 

§ 2.790(a)(7)(i)). This privilege protects investigatory files, including factual 

materials, from disclosure in order to prevent harm to either ongoing or 

contemplated investigations, or to prospective enforcement actions. The 

Commission itself may invoke the privilege. Georgia Power Co., et al. (Vogtle 

Electric Generating Plant, Units 1 & 2), CLI-94-5, 39 NRC 190, 200-201 (1994). 

Vermont Yankee, LBP-05-33, 62 NRC at 843. 

 

The deliberative process privilege applies to information that is both 

predecisional and deliberative. A document is predecisional if it was prepared 

before the adoption of an agency decision and specifically prepared to assist the 

decisionmaker in arriving at his or her decision. Communications are deliberative 

if they reflect a consultative process. Georgia Power Co., et al. (Vogtle Electric 

Generating Plant, Units 1 & 2), CLI-94-5, 39 NRC 190, 197-98 (1994); David 

Geisen, LBP-06-25, 64 NRC 367, 381 (2006). See also Entergy Nuclear 

Vermont Yankee, L.L.C., and Entergy Nuclear Operations, Inc. (Vermont Yankee 

Nuclear Power Station), LBP-06-3, 63 NRC 85, 91 (2006). 

Purely factual material is generally not protected by the deliberative process 

privilege, but there are exceptions to this rule. If a factual matter is inextricably 

linked with deliberative sections of documents such that the disclosure of the 

factual material would reveal government deliberations, the factual material is 

protected by the privilege. David Geisen, LBP-06-25, 64 NRC 367, 382 (2006). 

The executive privilege may be invoked in NRC proceedings. Shoreham, supra, 

19 NRC at 1333, citing Virginia Electric and Power Co. (North Anna Power 

Station, Units 1 & 2), CLI-74-16, 7 AEC 313 (1974); Consumers Power Co.

(Midland Plant, Units 1 & 2), ALAB-33, 4 AEC 701 (1971); Georgia Power Co., 

et al. (Vogtle Electric Generating Plant, Units 1 & 2), CLI-94-5, 39 NRC 190, 197 

(1994). 

Discussions between Staff members concerning the adequacy and 

completeness of the application, the potential need for RAIs, and the adequacy 

of RAI responses may be protected by the deliberative process privilege. 

Entergy Nuclear Vermont Yankee, L.L.C., and Entergy Nuclear Operations, Inc.

(Vermont Yankee Nuclear Power Station), LBP-06-3, 63 NRC 85, 93 (2006). 

Likewise, internal Staff communications concerning the appropriate wording and 

scope of a license condition are deliberative because they contain opinions of 

individual Staff members and do not necessarily represent part of the NRC’s final 

policy decision concerning the sufficiency of an application. Id. at 94. Similarly, 

Staff recommendations and opinions about whether a license condition should be 

imposed are protected because they are intended to assist the NRC in reaching 

a final decision on the appropriateness of a particular condition. Id. at 95. 

An agency’s decision to assert the deliberative process privilege over a 

document, while not requiring the personal review of the actual head of the 

agency, must at least be made by a senior person, such as the head of the 

department having control over the requested information. Entergy Nuclear 

Vermont Yankee, L.L.C. and Entergy Nuclear Operations, Inc. (Vermont Yankee 

JUNE 2011 PREHEARING MATTERS 173
Nuclear Power Station), LBP-05-33, 62 NRC 828, 843 (2005). This person must 

have both expertise and an overview-type perspective concerning the balance 

between the agency’s duty of disclosure versus its need to conduct frank internal 

debate without the chilling effect of public scrutiny. Entergy Nuclear Vermont 

Yankee, L.L.C. and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear 

Power Station), LBP-05-33, 62 NRC 828, 846-47 (2005). However, the Board 

does not require a specific privilege invocation process, or a specific level of 

senior executive to assert the privilege. Id. at 849. The requirement that a 

Division Director or other high-ranking official make the agency decision to assert 

the deliberative process privilege does not mean that such high-ranking 

individuals be involved in the deliberation reflected in the privileged document. 

Id. at 846. 

Documents shielded by executive privilege remain privileged even after the 

decision to which they pertain may have been effected, since disclosure at any 

time could inhibit the free flow of advice including analysis, reports, and 

expression of opinion within the agency. Long Island Lighting Co. (Shoreham 

Nuclear Power Station, Unit 1), LBP-82-82, 16 NRC 1144, 1164 (1982), citing

Federal Open Market Committee of the Federal Reserve System v. Merrill, 

443 U.S. 340, 360 (1979); Vermont Yankee, LBP-05-33, 62 NRC at 851-52. 

The executive privilege is a qualified privilege, and does not attach to purely 

factual communications, or to severable factual portions of communications, the 

disclosure of which would not compromise military or state secrets. Shoreham, 

supra, 16 NRC at 1164, citing EPA v. Mink, 410 U.S. 73, 87-88 (1973); Smith v. 

FTC, 403 F.Supp. 1000, 1015 (D. Del. 1975); Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), LBP-83-72, 18 NRC 1221, 1225 

(1983); see also Entergy Nuclear Vermont Yankee, L.L.C., and Entergy Nuclear 

Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-06-3, 

63 NRC 85, 91 (2006). The executive privilege does apply where purely factual 

material is inextricably intertwined with privileged communications or the 

disclosure of the factual material would reveal the agency’s decisionmaking 

process. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), 

ALAB-773, 19 NRC 1333, 1342 (1984), citing Russell v. Dep’t of the Air Force, 

682 F.2d 1045, 1048 (D.C. Cir. 1982); Georgia Power Co., et al. (Vogtle Electric 

Generating Plant, Units 1 & 2), CLI-94-5, 39 NRC 190, 197 (1994). Staff 

communications that summarize the applicable review procedures or report on 

the status of a matter are factual in nature and are not protected by the privilege. 

Entergy Nuclear Vermont Yankee, L.L.C., and Entergy Nuclear Operations, Inc.

(Vermont Yankee Nuclear Power Station), LBP-06-3, 63 NRC 85, 93 (2006) 

(citing EPA v. Mink, 410 U.S. 73, 87-88 (1973)). 

The executive privilege protects both intra-agency and interagency documents 

and may even extend to outside consultants to an agency. Long Island Lighting 

Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-773, 19 NRC 1333, 1346 

(1984), citing Lead Industries Ass’n v. OSHA, 610 F.2d 70, 83 (2d Cir. 1979). 

Communications that fall within the protection of the privilege may be disclosed 

upon an appropriate showing of need. Shoreham, supra, 16 NRC at 1164, citing

United States v. Leggett and Platt, Inc., 542 F.2d 655, 658-659 (6th Cir. 1976), 

cert. denied, 430 U.S. 945 (1977); Long Island Lighting Co. (Shoreham Nuclear 

PREHEARING MATTERS 174 JUNE 2011
Power Station, Unit 1), LBP-83-72, 18 NRC 1221, 1225 (1983); Long Island 

Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-773, 

19 NRC 1333, 1341 (1984), citing Carl Zeiss Stiftung, supra, 40 F.R.D. at 327. 

See also Entergy Nuclear Vermont Yankee, L.L.C., and Entergy Nuclear 

Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-06-3, 

63 NRC 85, 91 (2006). 

10 C.F.R. § 2.336(b)(5) requires deliberative process privilege logs to contain 

“sufficient information for assessing the claim of privilege. An inadequate 

privilege log is particularly problematic in Subpart L proceeding, where no other 

discovery is allowed, because without sufficient information as to what makes the 

document “deliberative,” the challenger must shoot in the dark and face a 

substantive answer by the withholder, without the right of reply. Entergy Nuclear 

Vermont Yankee, L.L.C. and Entergy Nuclear Operations, Inc. (Vermont Yankee 

Nuclear Power Station), LBP-05-33, 62 NRC 828, 839-40 (2005) 

In determining the need of a litigant seeking the production of documents 

covered by the executive privilege, an objective balancing test is employed, 

weighing the importance of documents to the party seeking their production and 

the availability elsewhere of the information contained in the documents against 

the Government interest in secrecy. Long Island Lighting Co. (Shoreham 

Nuclear Power Station, Unit 1), LBP-82-82, 16 NRC 1144, 1164-1165 (1982), 

citing United States v. Leggett and Platt, Inc., 542 F.2d 655, 658-659 

(6th Cir. 1976), cert. denied, 430 U.S. 945 (1977); Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), LBP-83-72, 18 NRC 1221, 1225 

(1983); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), 

ALAB-773, 19 NRC 1333, 1341 (1984); Georgia Power Co., et al. (Vogtle Electric 

Generating Plant, Units 1 & 2), CLI-94-5, 39 NRC 190, 197 (1994). Vermont 

Yankee, LBP-05-33, 62 NRC at 844. 

In balancing the need for deliberative process documents against the 

government’s interest in nondisclosure, courts have considered various factors, 

including: (1) the relevance of the evidence sought to be protected; (2) the 

availability of other evidence; (3) the seriousness of the litigation and the issues 

involved; (4) the role of the government in the litigation; and (5) the possibility of 

future timidity by government employees who will be forced to recognize that 

their secrets are violable. Entergy Nuclear Vermont Yankee, L.L.C., and Entergy 

Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-06-3, 

63 NRC 85, 91-92 (2006) (citing In re Franklin National Bank Securities 

Litigation, 478 F.Supp. 577, 583 (E.D.N.Y. 1979); In re Supoena Duces Tecum, 

145 F.3d 1422, 1423-24 (D.C. Cir. 1998); In re Subpoena Served upon the 

Comptroller of the Currency, 967 F.2d 630, 634 (D.C. Cir. 1992); 

Paul F. Rothstein & Susan Crump, Federal Testimonial Privileges § 5:10 (2d ed. 

2005)). The importance of the evidence to the case is generally determinative in 

this balancing, and the first two factors – relevance and the availability of other 

evidence – focus on the importance of the evidence. Vermont Yankee, 

LBP-06-3, 63 NRC at 92. If the documents at issue are not relevant, then, as a 

matter of law, a showing of sufficient need is not possible. Id. (citing U.S. v. 

Farley, 11 F.3d 1385, 1389-91 (7th Cir. 1993)). Even if a draft document is 

relevant and important, once the final version of the document becomes 

available, the need for the draft (or comments suggesting changes to a draft) 

JUNE 2011 PREHEARING MATTERS 175
may become moot or minimal. Vermont Yankee, LBP-06-3, 63 NRC at 92 

(citing, e.g., Missouri v. Army Corps of Eng’rs, 147 F.3d 708, 711 (8th Cir. 1998); 

Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-773, 

19 NRC 1333, 1345 (1984)). 

The burden is upon the claimant of the executive privilege to demonstrate a 

proper entitlement to exemption from disclosure, including a demonstration of 

precise and certain reasons for preserving the confidentiality of governmental 

communications. Shoreham, supra, 16 NRC at 1144, 1165, citing Smith v. FTC, 

403 F.Supp. 1000, 1016 (D. Del 1975); Long Island Lighting Co. (Shoreham 

Nuclear Power Station, Unit 1), ALAB-773, 19 NRC 1333, 1341 (1984). 

It is appropriate to look to cases decided under Exemption 5 of the FOIA for 

guidance in resolving claims of executive privilege in NRC proceedings related to 

discovery, so long as it is done using a common-sense approach which 

recognizes any differing equities presented in such FOIA cases. Long Island 

Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-82, 

16 NRC 1144, 1163-1164 (1982). 

A claim of executive privilege is not waived by participation as a litigant in the 

proceeding. Shoreham, supra, 16 NRC at 1164. 

The privilege against disclosure of intragovernmental documents containing 

advisory opinions, recommendations and deliberations is a part of the broader 

executive privilege recognized by the courts. Shoreham, supra, 16 NRC at 1164, 

citing United States v. Nixon, 418 U.S. 683, 705-711 (1974); Long Island Lighting 

Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-72, 18 NRC 1221, 

1226-1227 (1983). 

The executive privilege is not limited to policymaking, but may attach to the 

deliberative process that precedes most decisions of government agencies. 

Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-773, 

19 NRC 1333, 1341 (1984), citing Russell v. Dep’t of the Air Force, 

682 F.2d 1045, 1047 (D.C. Cir. 1982). 

The purpose behind the privilege is to encourage frank discussions within the 

Government regarding the formulation of policy and the making of decisions. 

Shoreham, supra, 16 NRC at 1164, citing United States v. Berrigan, 

482 F.2d 171, 181 (3rd Cir. 1973); David Geisen, LBP-06-25, 64 NRC 367, 380 

(2006). 

Where an NRC regulation expressly requires that a party produce a particular 

type of deliberative document, this regulatory requirement will override the 

general deliberative process privilege with respect to the type of document in 

question. U.S. Department of Energy (High-Level Waste Repository), 

LBP-05-27, 62 NRC 478, 518-19 (2005). 

Courts are not generally willing to compel disclosure of deliberative materials, 

even if an individual’s due process rights are at stake, unless some particularly 

compelling interest is at stake. The Commission and the former Appeal Board 

has recognized the strength of interest in deliberative process and have rarely 

PREHEARING MATTERS 176 JUNE 2011
ordered the disclosure of such materials. David Geisen, LBP-06-25, 

64 NRC 367, 391 (2006). 

2.12.2.4.4 FOIA Exemptions – Personal Privacy Privilege

The reason behind the personal privacy privilege is that unsubstantiated 

allegations of criminal activity against individuals should not be publicly 

disseminated. David Geisen, LBP-06-25, 64 NRC 367, 393 (2006). 

2.12.2.4.5 FOIA Exemptions – Proprietary Information

Because 10 C.F.R. § 2.790 [now 10 C.F.R. § 2.390] embodies the standards of 

Exemption 4 of the FOIA, the agency looks for guidance to the plentiful federal 

case law on that exemption, although that case law does not bind the 

Commission. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage 

Installation), CLI-05-1, 61 NRC 160, 163, 172 (2005). Under Exemption 4, the 

current generally accepted legal definition of “confidential” is information whose 

disclosure is likely to (1) impair the government’s future ability to obtain 

necessary information; or (2) impair other government interests such as 

compliance, program efficiency and effectiveness, and the fulfillment of an 

agency’s statutory mandate; or (3) cause substantial harm to the competitive 

position of the person from whom the information was obtained. Id. at 163-64 

(citing McDonnell Douglas Corp. v. Nat’l Aeronautics & Space Admin., 

180 F.3d 303, 305 (D.C. Cir. 1999), reh’g en banc denied, No. 98-5251 

(D.C. Cir. Oct. 6, 1999); Critical Mass Energy Project v. NRC, 975 F.2d 871, 879 

(D.C. Cir 1992) (en banc), cert. denied, 507 U.S. 984 (1993), approving on this 

ground but rev’g and vacating on other grounds, 830 F.2d 278, 286 

(D.C. Cir. 1987); 9 to 5 Org. for Women Office Workers v. Bd. of Governors of 

the Fed. Reserve Sys., 721 F.2d 1, 7-10 (1st Cir. 1983). The federal courts (and 

now the Commission) have interpreted the third prong to require a showing of 

(a) the existence of competition and (b) the likelihood of substantial competitive 

injury. PFS, CLI-05-1, 61 NRC at 164, 171 (citing CNA Fin. Corp. v. Donovan, 

830 F.2d 1132, 1152 (D.C. Cir. 1987), cert. denied, 485 U.S. 977 (1988); Nat’l 

Parks & Conservation Ass’n v. Kleppe, 547 F.2d 673, 679 (D.C. Cir. 1976)). 

While federal court decisions are divided on the question as to what constitutes 

“competitive injury,” the Commission has adopted the broader of two 

interpretations, finding that interpretation to be closer to the heart of Exemption 4 

and § 2.790 [now § 2.390]; this position concludes that such injury can flow from 

either competitors or noncompetitors (such as customers and suppliers). PFS, 

CLI-05-1, 61 NRC at 164 (citing McDonnell Douglas Corp., 180 F.3d at 306; Nat’l 

Parks & Conservation Ass’n, 547 F.2d at 687; Cont’l Oil Co. v. Fed. Power 

Comm’n, 519 F.2d 31, (5th Cir. 1975), cert. denied, 425 U.S. 971 (1976)). 

2.12.2.4.6 Waiver of a Privilege

In determining whether a party’s inadvertent disclosure of a privileged document 

constitutes a waiver of the privilege, a Board will consider the adequacy of the 

precautions taken initially to prevent disclosure, whether the party was compelled 

to produce the document under a Board-imposed expedited discovery schedule, 

the number of documents which the party had to review, and whether the party, 

upon learning of the inadvertent disclosure, promptly objected to the production 

JUNE 2011 PREHEARING MATTERS 177
of the document. Kerr-McGee Chemical Corp. (West Chicago Rare Earths 

Facility), LBP-85-1, 21 NRC 11, 19-20 (1985). 

Privilege against nondisclosure deemed waived where documents have been 

produced in public forum, e.g., to the NRC in a Section 2.206 proceeding, for an 

investigation, or to the Congress. Georgia Power Co., et al. (Vogtle Electric 

Generating Plant, Units 1 & 2), LBP-93-11, 37 NRC 469, 475 (1993). 

2.12.2.5 Access to Classified, Safeguards, or Other Security-Related Information

A sensible application of need-to-know doctrine starts with the traditional discovery 

rules and then narrows their breadth to take account of the sensitive nature of 

security information. Such information warrants tight control and enhanced 

precautions. Duke Energy Corp. (Catawba Nuclear Station, Units 1 & 2), CLI-04-29, 

60 NRC 417, 422 (2004), reconsid. denied, CLI-04-37, 60 NRC 646 (2004). The 

need-to-know ‘indispensability’ standard is properly defined by reference to the 

discovery standard, with appropriate balancing of the public safety and other factors 

unique to the case. Id.

A party requesting access to a document withheld as sensitive unclassified 

nonsafeguards information (or protected as such under 10 C.F.R. § 2.390(d)(1)) 

must, in the event no protective order addresses the matter and/or in the event of a 

dispute concerning such access, show that it needs the document in order to 

participate meaningfully in the proceeding. Luminant Generating Co., LLC

(Comanche Peak Nuclear Power Plant, Units 3 & 4), LBP-10-05, 71 NRC ___ (Mar. 

11, 2010) (slip op. at 21). However, “need” in this case is not limited to information 

that would form the sole basis or support for a contention, but can extend to 

information that would provide partial support or clarification. Id. (slip op. at 19-20). 

The Commission expects Boards and the NRC Staff to take a hard look at requests 

for sensitive security documents to make sure disclosure is truly useful in litigating 

admitted contentions, and not simply an exercise of curiosity or of a party’s hope 

that something useful may turn up. Duke Energy Corp. (Catawba Nuclear Station, 

Units 1 & 2), CLI-04-29, 60 NRC 417, 422 (2004), reconsid. denied, CLI-04-37, 

60 NRC 646 (2004). 

Where security-related guidance documents are applicable to an entirely different 

type of facility than the one at issue in a particular proceeding, it is not 

‘indispensable’ for an intervenor to obtain those documents in discovery related to 

litigation of security issues, particularly if the guidance documents constitute 

classified information. See Duke Energy Corp. (Catawba Nuclear Station, Units 1 

& 2), CLI-04-29, 60 NRC 417, 425 (2004), reconsid. denied, CLI-04-37, 60 NRC 646 

(2004). 

2.12.2.6 Protective Orders

When a protective order is in place, parties in federal court must carry a heavy 

burden to show entitlement to privacy-based withholding of otherwise-discoverable 

documents. David Geisen, LBP-06-25, 64 NRC 367, 387 (2006). 

PREHEARING MATTERS 178 JUNE 2011
In using protective information, “those subject to the protective order may not 

corroborate the accuracy (or inaccuracy) of outside information by using protected 

information gained through the hearing process.” Pacific Gas and Electric Co.

(Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-600, 12 NRC 3, 6 (1980). 

An affidavit in support of a corporation’s request for a protective order is insufficient 

where it does not establish the basis for the affiant’s personal knowledge (if any) 

respecting the basis for the protective order – that is, the policies and practices of 

the corporation with regard to preserving the confidentiality of information said to be 

proprietary in nature. The Board might well disregard the affidavit entirely on the 

ground that it was not shown to have been executed by a qualified individual. While 

it may not be necessary to have the chief executive officer of the company serve as 

affiant, there is ample warrant to require that facts pertaining to management 

policies and practices be presented by an official who is in a position to attest to 

those policies and practices (and the reasons for them) from personal knowledge. 

Virginia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 & 2), 

ALAB-555, 10 NRC 23, 28 (1979). In North Anna, the Appeal Board granted a 

protective order request but explicitly declined to find that the corporation requesting 

the order had met its burden of showing that the information in question was 

proprietary and entitled to protection from public disclosure under the standards set 

forth in Kansas Gas & Electric Co. (Wolf Creek Nuclear Generating Station, Unit 1), 

ALAB-327, 3 NRC 408 (1976). No party had objected to the order, and the Appeal 

Board granted the order in the interest of obtaining the requested information 

without untoward further delay. However, its action should not be taken as 

precedent for future cases in which relief might be sought from an adjudicatory 

board based upon affidavits containing deficiencies as described above. North 

Anna, supra, 10 NRC at 28. 

Pursuant to 10 C.F.R. § 2.705(h)(2) (formerly § 2.740(f)(2)), the Board is 

empowered to make a protective order as it would make upon a motion pursuant to 

Section 2.705(c) (formerly Section 2.740(c)), in ruling upon a motion to compel 

made in accordance with Section 2.740(f). Long Island Lighting Co. (Shoreham 

Nuclear Power Station, Unit 1), LBP-82-82, 16 NRC 1144, 1152 (1982). 

In at least one instance, a Licensing Board deemed it unnecessary to act on a 

motion for a protective order where a timely motion to compel is not filed. In such a 

case, the motion for protective order will be deemed granted and the matter closed 

upon the expiration of the time for filing a motion to compel. Duke Power Co.

(Catawba Nuclear Station, Units 1 & 2), LBP-82-116, 16 NRC 1937, 1952 (1982). 

Where a demonstration has been made that the rights of association of a member of 

an intervenor group in the area have been threatened through the threat of 

compulsory legal process to defend contentions, the employment situation in the 

area is dependent on the nuclear industry, and there is no detriment to applicant’s 

interests by not having the identity of individual members of petitioner publicly 

disclosed, the Licensing Board will issue a protective order to prevent the public 

disclosure of the names of members of the organizational petitioner. Washington 

Public Power Supply System (WPPSS Nuclear Project No. 1), LBP-83-16, 

17 NRC 479, 485-86 (1983). 

JUNE 2011 PREHEARING MATTERS 179
A movant seeking a grant of confidentiality with regard to its identity must 

demonstrate the harm which it could suffer if its identity is disclosed. 

Joseph J. Macktal, CLI-89-12, 30 NRC 19, 24 (1989), reconsid. denied, CLI-89-13, 

30 NRC 27 (1989); Texas Utilities Electric Co. (Comanche Peak Steam Electric 

Station, Units 1 & 2), CLI-92-12, 36 NRC 62, 77 (1992). 

Licensing and Appeal Boards assume that protective orders will be obeyed unless a 

concrete showing to the contrary is made. Consumers Power Co. (Midland Plant, 

Units 1 & 2), ALAB-764, 19 NRC 633, 643 n. 14 (1984); see Consumers Power Co.

(Midland Plant, Units 1 & 2), LBP-83-53, 18 NRC 282, 287-88 (1983), reconsid.

denied, LBP-83-64, 18 NRC 766, 769 (1983), citing Commonwealth Edison Co.

(Byron Nuclear Power Station, Units 1 & 2), ALAB-735, 18 NRC 19, 25 (1983). One 

who violates such orders risks “serious sanction.” Midland, supra, 18 NRC at 769. 

A Board may impose sanctions to remedy the harm resulting from a party’s violation 

of a protective order, and to prevent future violations of the order. Public Service 

Co. of New Hampshire (Seabrook Station, Units 1 & 2), LBP-88-28, 28 NRC 537, 

541 (1988). 

2.12.2.7 Work Product

To be privileged from discovery by the work product doctrine, as codified in 

10 C.F.R. § 2.705(b)(4) (formerly § 2.740(b)(2)), a document must be both prepared 

by an attorney, or by a person working at the direction of an attorney, and prepared 

in anticipation of litigation. Ordinary work product, which does not include the 

mental impressions, conclusions, legal theories, or opinions of the attorney (or other 

agent), may be obtained by an adverse party upon a showing of “substantial need of 

materials in preparation of the case and that he is unable without undue hardship to 

obtain the substantial equivalent of the materials by other means.” Opinion work 

product is not discoverable, so long as the material was in fact prepared by an 

attorney or other agent in anticipation of litigation, and not assembled in the ordinary 

course of business, or pursuant to public requirements unrelated to litigation. Long 

Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-82, 

16 NRC 1144, 1162 (1982); Public Service Co. of New Hampshire (Seabrook 

Station, Units 1 & 2), LBP-83-17, 17 NRC 490, 495 (1983); U.S. v. Construction 

Products Research, Inc., 73 F.3d 464, 473 (2nd Cir. 1996). See Commonwealth 

Edison Co. (Braidwood Nuclear Power Station, Units 1 & 2), LBP-86-7, 

23 NRC 177, 179 (1986) (documents required by NRC regulations are discoverable 

even though attorneys may have assisted in preparing the documents in anticipation 

of litigation). An intervenor’s mere assertion that the material it is withholding 

constitutes attorney work product is insufficient to meet the burden of proving it is 

entitled to protection from discovery. Seabrook, supra, 17 NRC at 495. 

In the absence of unusual circumstances, a corporate party cannot immunize itself 

from otherwise proper discovery merely by using lawyers to make file searches for 

information required to answer an interrogatory. Houston Lighting & Power Co.

(South Texas Project, Units 1 & 2), LBP-79-5, 9 NRC 193, 195 (1979). 

Drafts of testimony are not covered by the attorney work product privilege. 

Consumers Power Co. (Midland Plant, Units 1 & 2), LBP-81-63, 14 NRC 1768, 

1793-1794 (1981). 

PREHEARING MATTERS 180 JUNE 2011
Although a report prepared by a party’s nonwitness experts qualifies for the work 

product privilege, a Licensing Board may order discovery of those portions of the 

report which are relevant to 10 C.F.R. 50, Appendix B determinations concerning 

the causes of deficiencies in the plant. Texas Utilities Electric Co. (Comanche Peak 

Steam Electric Station, Unit 1), LBP-87-20, 25 NRC 953, 957 (1987). 

A qualified work product immunity extends over material gathered or prepared by an 

attorney for use in litigation, either current or reasonably anticipated at a future time. 

Although the privilege is not easily overridden, a party may gain discovery of such 

material upon a showing of a substantial need for the material in the preparation of 

its case and an inability to obtain the material by any other means without undue 

hardships. Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, 

Units 1 & 2), LBP-84-50, 20 NRC 1464, 1473-1474 (1984), citing Hickman v. Taylor, 

329 U.S. 495 (1947), and 10 C.F.R. § 2.705(b)(4) (formerly § 2.740(b)(2)). 

Even if a document is prepared in part in anticipation of adjudication, the work 

product privilege will not protect the document if, irrespective of the adjudicatory 

process, the document would have been prepared anyway in essentially similar 

form. Thus, a draft license application prepared in part in anticipation of the license 

application adjudicatory process was not protected by work product privilege, as a 

license application is a necessary prerequisite for obtaining a license, regardless of 

whether there is to be adjudication over the application. U.S. Department of Energy

(High Level Waste Repository), LBP-05-27, 62 NRC 478, 519-20 (2005). 

2.12.2.8 Updating Discovery Responses

The requirements for updating discovery responses are set forth in 

10 C.F.R. § 2.705(e). Generally, a response that was accurate and complete when 

made need not be updated to include later acquired information with certain 

exceptions set forth in Section 2.705(e) (formerly § 2.740(e)). Of course, an 

adjudicatory board may impose the duty to supplement responses beyond that 

required by the regulations. 

Under 10 C.F.R. § 2.705(e), the obligation to update discovery responses ends 

upon issuance by the Licensing Board of a ruling terminating that aspect of the 

proceeding to which the discovery relates. Northeast Nuclear Energy Co. (Millstone 

Nuclear Power Station, Unit 3), LBP-01-1, 53 NRC 75, 80 (2001). 

2.12.2.9 Interrogatories

Interrogatories must have at least general relevancy, for discovery purposes, to the 

matter in controversy. Texas Utilities Generating Co. (Comanche Peak Steam 

Electric Station, Units 1 & 2), LBP-81-25, 14 NRC 241, 243 (1981). 

Interrogatories will not be rejected solely on the number of questions. Pennsylvania 

Power & Light Co. (Susquehanna Steam Electric Station, Units 1 & 2), ALAB-613, 

12 NRC 317, 330-335 (1980). However, Licensing Boards may limit the number of 

interrogatories in accordance with the Commission’s rules. Statement of Policy on 

Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 455-456 (1981). 

JUNE 2011 PREHEARING MATTERS 181
Numbers alone do not determine the propriety of interrogatories. While a Board is 

authorized to impose a limit on interrogatories, the rules do not do so of their own 

force. In the absence of specific objections there is no occasion to review the 

propriety of interrogatories individually. Duke Power Co. (Catawba Nuclear Station, 

Units 1 & 2), LBP-82-116, 16 NRC 1937, 1941 (1982). 

An intervenor must come forward with evidence “sufficient to require reasonable 

minds to inquire further” to insure that its contentions are explored at the hearing. 

Interrogatories designed to discover what, if any, evidence underlies an intervenor’s 

own contentions are not out of order. Duke Power Co. (Catawba Nuclear Station, 

Units 1 & 2), LBP-82-116, 16 NRC 1937, 1942 (1982). 

Interrogatories served to determine the “regulatory basis” or “legal theory” for a 

contention are appropriate and important. Duke Power Co. (Catawba Nuclear 

Station, Units 1 & 2), LBP-82-116, 16 NRC 1937, 1946 (1982). 

Answers should be complete in themselves; the interrogating party should not need 

to sift through documents or other materials to obtain a complete answer. Instead, a 

party must specify precisely which documents cited contain the desired information. 

Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), 

LBP-82-67, 16 NRC 734, 736 (1982), citing Commonwealth Edison Co. (Byron 

Nuclear Power Station, Units 1 & 2), ALAB-678, 15 NRC 1421, n.39 (1982); 

4A Moore’s Federal Practice 33.25(1) at 33-129-130 (2d ed. 1981); Martin v. Easton 

Publishing Co., 85 F.R.D. 312, 315 (E.D. Pa. 1980). 

To the extent the interrogatory seeks to uncover and examine the foundation upon 

which an answer to a specific interrogatory is based, it is proper, particularly where it 

relates to the interrogee’s own contention. Interrogatories which inquire into the 

basis of a contention serve the dual purposes of narrowing the issues and 

preventing surprise at trial. Public Service Co. of New Hampshire (Seabrook 

Station, Units 1 & 2), LBP-83-17, 17 NRC 490, 493-94 (1983); Kerr-McGee 

Chemical Corp. (West Chicago Rare Earths Facility), LBP-86-4, 23 NRC 75, 81 

(1986). 

2.12.3 Discovery Against the Staff

Discovery against the Staff is on a different footing than discovery in general. 

Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-634, 13 NRC 96, 97-98 

(1981); Pennsylvania Power & Light Co. (Susquehanna Steam Electric Station, Units 1 

& 2), ALAB-613, 12 NRC 317, 323 (1980). Discovery against the NRC Staff is not 

governed by the general rules but, instead, is governed by special provisions of the 

regulations. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Plant, Units 1 & 2), 

LBP-93-9, 37 NRC 433, 452-53 (1993); see 10 C.F.R. 2.709. 

With respect to requests for admissions addressed to the Staff, the Staff stands on the 

same footing as any party. Neither 10 C.F.R. § 2.708 (formerly § 2.742) nor any other 

section of the regulations provides for any different treatment of the Staff. The Board 

also found that Rule 36(b) of the Federal Rules of Civil Procedure is helpful in 

interpreting the Commission’s rules concerning admissions. That rule states that the 

court may permit withdrawal or amendment of an admission when the presentation of 

PREHEARING MATTERS 182 JUNE 2011
the merits of the action will be served thereby. Georgia Power Co. (Vogtle Electric 

Generating Plant, Units 1 & 2), LBP-94-26, 40 NRC 93, 95-96 and n.4 (1994). 

Depositions of named NRC Staff members may be required only upon a showing of 

exceptional circumstances. Consumers Power Co. (Midland Plant, Units 1 & 2), 

LBP-81-4, 13 NRC 216 (1981); 10 C.F.R. § 2.709(a)(1) (formerly § 2.720(h)(2)); Safety 

Light Corp. (Bloomsburg Site Decontamination), LBP-92-3A, 35 NRC 110, 112 (1992). 

Factors considered in such a showing include whether: disclosure of the information is 

necessary to a proper decision in the proceeding; the information is not reasonably 

obtainable from another source; there is a need to expedite the proceeding. Id. at 223, 

citing Virginia Electric and Power Co. (North Anna Power Station, Units 1 & 2), 

CLI-74-16, 7 AEC 313 (1974). 

According to provisions of 10 C.F.R. § 2.709(a)(2) (formerly § 2.720), interrogatories 

against the Staff may be enforced only upon a showing that the answers to be 

produced are necessary to a proper decision in the proceeding. Consumers Power 

Co. (Palisades Nuclear Plant), ALJ-80-1, 12 NRC 117, 119 (1980). 

With respect to interrogatories asked of the Staff, the Staff is not required to answer 

interrogatories unless this Licensing Board finds: (1) answers to the interrogatories are 

necessary to the determination of this case, and (2) answers to the interrogatories are 

not reasonably attainable from any other source. Vogtle, supra, 40 NRC at 94-95 

(citing 10 C.F.R. § 2.705(a)(2) (formerly § 2.720(h)(2)(ii)); compare

10 C.F.R. § 2.706(b)(1) (formerly § 2.740b(a)). 

The Staff must respond to interrogatories requesting the names of Staff involved in 

issuing a Notice of Violation. Georgia Power Co. (Vogtle Electric Generating Plant, 

Units 1 & 2), LBP-94-31, 40 NRC 137, 143 (1994). 

Document requests against the Staff must be enforced where relevancy has been 

demonstrated unless production of the document is exempt under 10 C.F.R. § 2.390. 

In that case, and only then, must it be demonstrated that disclosure is necessary to a 

proper decision in the matter. Palisades, supra. Even if a relevant document is 

exempt from disclosure pursuant to Section 2.390(a), the document must still be 

released if it is necessary to a proper decision in the proceeding and not reasonably 

obtainable from another source. Georgia Power Co., et al. (Vogtle Electric Generating 

Plant, Units 1 & 2), CLI-94-5, 39 NRC 190, 197 (1994). 

The Licensing Board weighed several factors related to the Staff’s motion to defer 

discovery of certain documents related to an ongoing investigation. In limiting the 

extent of the deferral, the Board used a balancing test comprised of four factors: 

(1) the length of delay, (2) the reason for delay, (3) the defendant’s assertion of the 

right to a prompt proceeding, and (4) the prejudice to the defendant of a delay in the 

civil proceeding. It applied the Commission’s guidance that “’these elements are 

guides in balancing the interests of the claimant and the Government to assess 

whether the basic due process requirement of fairness has been satisfied in a 

particular case.’” Georgia Power Co. (Vogtle Electric Generating Plant, Units 1 & 2), 

LBP-93-22, 38 NRC 189, 193 (1993) (citing Oncology Services Corp., CLI-93-17, 38 

NRC 44, 51 (1993), quoting United States v. Eight Thousand Eight Hundred and Fifty 

Dollars in United States Currency, 461 U.S. 555, 565 (1983)). 

JUNE 2011 PREHEARING MATTERS 183
The NRC Staff is not required to compile a list of criticisms of a proposal nor to 

formulate a position on them in response to an interrogatory. Consolidated Edison Co. 

of N.Y. (Indian Point Nuclear Generating Unit 2), LBP-82-113, 16 NRC 1907, 1908 

(1982). 

It is appropriate to require the Staff to answer requests for admissions concerning the 

truth of findings in its own report, which contains important collateral facts. Georgia 

Power Co. (Vogtle Electric Generating Plant, Units 1 & 2), LBP-94-31, 40 NRC 137, 

140-41 (1994). It is also appropriate to require the Staff to release segregable facts on 

which decisions have been made, even if those facts are contained in predecisional 

documents. Facts that are inextricably intertwined with opinions in predecisional 

documents need not be released. Georgia Power, et al., 40 NRC at 142. 

The Federal Emergency Management Agency (FEMA) is acting as a consultant to the 

NRC in emergency planning matters; therefore, its employees are entitled to limitations 

on discovery afforded NRC consultants by 10 C.F.R. § 2.709 (formerly 

§ 2.720(h)(2)(i)). Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), 

LBP-83-61, 18 NRC 700, 701 (1983). 

Provisions of the Memorandum of Understanding between FEMA and NRC qualify 

FEMA as an NRC consultant for purposes of 10 C.F.R. § 2.709 (formerly 

§ 2.720(h)(2)(i)). Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), 

LBP-83-61, 18 NRC 700, 704 (1983). 

2.12.4 Responses to Discovery Requests

It is an adequate response to any discovery request to state that the information or 

document requested is available in public compilations and to provide sufficient 

information to locate the material requested. Metropolitan Edison Co. (Three Mile 

Island Nuclear Station, Unit No. 1), CLI-79-8, 10 NRC 141, 147-148 (1979). This 

holding has been codified at 10 C.F.R. § 2.705(b)(1) (formerly § 2.740(b)(1)). 

54 Fed. Reg. 33,168, 33,181 (Aug. 11, 1989). 

A party’s response to an interrogatory is adequate if it is true and complete, regardless 

of whether the discovering party is satisfied with the response. However, where a 

party’s response is inconsistent with the party’s previous statements and assertions 

made to the Staff, a Board will grant a motion to compel discovery. Vermont Yankee 

Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), LBP-88-25, 

28 NRC 394, 397-99 (1988), reconsid. denied, LBP-88-25A, 28 NRC 435 (1988). 

An applicant is entitled to prompt answers to interrogatories inquiring into the factual 

bases for contentions and evidentiary support for them, since intervenors are not 

permitted to make skeletal contentions and keep the bases for them secret. 

Commonwealth Edison Co. (Byron Station, Units 1 & 2), LBP-81-52, 14 NRC 901, 903 

(1981), citing Pennsylvania Power and Light Co. and Allegheny Electric Cooperative, 

Inc. (Susquehanna Steam Electric Station, Units 1 & 2), ALAB-613, 12 NRC 317 

(1980); Kerr-McGee Chemical Corp. (West Chicago Rare Earths Facility), LBP-86-4, 

23 NRC 75, 81-82 (1986). An intervenor’s failure to timely answer an applicant’s 

interrogatories is not excused by the fact that the delay in answering the interrogatories 

might not delay the remainder of the proceeding. West Chicago, supra, 23 NRC at 82. 

PREHEARING MATTERS 184 JUNE 2011
Answers to interrogatories should be complete in themselves. The interrogating party 

should not need to sift through documents or other materials to obtain a complete 

answer. Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 & 2), 

ALAB-678, 15 NRC 1400, 1421 n.39 (1982), citing 4A Moore’s Federal Practice

33.25(1) at 33-129-130 (2d ed. 1981). 

10 C.F.R. § 2.705(b)(1) (formerly § 2.740(b)(1)) provides in part that: 

 Parties may obtain discovery regarding any matter, not privileged, which is 

 relevant to the subject matter involved in the proceeding...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. 

Answers to interrogatories or requests for documents which do not comply with this 

provision are inadequate. Illinois Power Co. (Clinton Power Station, Unit 1), 

LBP-81-61, 14 NRC 1735, 1737-1738 (1981). 

Pursuant to 10 C.F.R. § 2.707(d) (formerly § 2.741(d)), a party upon whom a request 

for the production of documents is served is required to serve, within thirty (30) days, a 

written response stating either that the requested inspection will be permitted or stating 

its reasons for objecting to the request. A response must state, with respect to each 

item or category, either that inspection will be permitted or that the request is 

objectionable for specific reasons. Long Island Lighting Co. (Shoreham Nuclear Power 

Station, Unit 1), LBP-82-82, 16 NRC 1144, 1152 (1982). 

A Board may require a party, who has been served with a discovery request which it 

believes is overly broad, to explain why the request is too broad and, if feasible, to 

interpret the request in a reasonable fashion and supply documents (or answer 

interrogatories) within the realm of reason. Texas Utilities Electric Co. (Comanche 

Peak Steam Electric Station, Units 1 & 2), LBP-85-41, 22 NRC 765, 768 (1985). 

A request for documents should not be deemed objectionable solely because there 

might be some burden attendant to their production. Shoreham, supra, 

16 NRC at 1155. Pursuant to 10 C.F.R. § 2.705(f)(1) (formerly § 2.740(f)(1)), failure to 

answer or respond shall 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 10 C.F.R. § 2.705(c) (formerly § 2.740(c)). A party is not 

required to seek a protective order when it has, in fact, responded by objecting. An 

evasive or incomplete answer or response shall be treated as a failure to answer or 

respond. Shoreham, supra, 16 NRC at 1152. 

Where intervenors have filed consolidated briefs they may be treated as a consolidated 

party; one intervenor may be appointed lead intervenor for purposes of coordinating 

responses to discovery, but discovery requests should be served on each party 

intervenor. Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 

& 2), LBP-81-35, 14 NRC 682, 687-688 (1981). 

The involvement of a party’s attorneys in litigation or other professional business does 

not excuse noncompliance with, nor extend deadlines for compliance with, discovery 

requests or other rules of practice, and is an inadequate response to a motion to 

JUNE 2011 PREHEARING MATTERS 185
compel discovery. Commonwealth Edison Co. (Byron Station, Units 1 & 2), 

LBP-81-30-A, 14 NRC 364, 373 (1981). 

2.12.5 Compelling Discovery/Subpoenas

Discovery can be compelled where the person against whom discovery is sought 

resists (see 10 C.F.R. § 2.705(f) (formerly § 2.740(f))). Subpoenas may also issue 

pursuant to 10 C.F.R. § 2.702 (formerly § 2.720). 

In the first instance, no one appears to be immune from an order compelling discovery. 

The Advisory Committee on Reactor Safeguards (ACRS), for example, has been 

ordered to provide materials which it declined to provide voluntarily. Viriginia Electric 

Power Co. (North Anna Power Station, Units 1 & 2), CLI-74-16, 7 AEC 313 (1974). 

Nevertheless, where discovery is resisted by a non-party (discovery against nonparties impliedly permitted under language of 10 C.F.R. §§ 2.702(f), 2.705(c) (formerly 

§§ 2.720(f), 2.740(c)), a greater showing of relevance and materiality appears to be 

necessary, and a party seeking discovery must show that: 

(1) information sought is otherwise unavailable; and 

(2) he has minimized the burden to be placed on the nonparty. 

Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-122, 6 AEC 322 (1973); 

Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-118, 6 AEC 263 (1973). 

Moreover, Licensing Boards have, on occasion, shown reluctance to enforce the 

discovery rules to the letter against intervenors. See, e.g., Gulf States Utilities Co.

(River Bend Station, Units 1 & 2), LBP-74-74, 8 AEC 669 (1974). 

Section 2.705(f) (formerly Section 2.740(f)) like its counterpart in the last sentence of 

Rule 37(d) of the Federal Rules of Civil Procedure from which the Commission’s 

provision was copied, applies exclusively to situations where a person or party totally 

fails to respond to a set of interrogatories or document request. Louisiana Energy 

Services, L.P. (Claiborne Enrichment Center), LBP-94-38, 40 NRC 309, 310 (1994) 

citing 8 Charles A. Wright et al., Federal Practice and Procedure § 2291 at 809-10 

(1970). 

Section 2.702 (formerly Section 2.740) of the NRC’s Rules of Practice, under which 

subpoenas are issued, is not founded upon the Commission’s general rulemaking 

powers; rather, it rests upon the specific authority to issue subpoenas duces tecum

contained in Section 161(c) of the AEA. Therefore, the rule of FMC v. Anglo-Canadian 

Shipping Co., 335 F.2d 255 (9th Cir. 1964) that agency discovery rules cannot be 

founded on general rulemaking powers does not come into play. Pacific Gas and 

Electric Co. (Stanislaus Nuclear Project, Unit 1), ALAB-550, 9 NRC 683, 694 (1979). 

See also OIA Investigation, CLI-89-11, 30 NRC 11, 14-15 (1989), aff’d sub nom. U.S. 

v. Comley, 890 F.2d 539 (1st Cir.1989). 

The federal courts generally will enforce an administrative subpoena if: (1) the agency 

can articulate a proper purpose for issuing the subpoena; (2) the information sought by 

the subpoena is reasonably relevant to the purpose of the investigation; and (3) the 

subpoena is not too definite. The Commission can establish a proper purpose for 

issuing a subpoena by showing that the matter under investigation implicates public 

health and safety concerns in matters involving nuclear materials. U.S. v. Oncology 

PREHEARING MATTERS 186 JUNE 2011
Services Corp., 60 F.3d 1015, 1020 (3rd Cir. 1995); United States v. Construction 

Products Research, Inc., 73 F.3d 464, 471 (2nd Cir. 1996); U.S. v. Comley, 

890 F.2d 539, 541-42 (1st Cir. 1989); Five Star Products, Inc. and Construction 

Products Research, Inc., CLI-93-23, 38 NRC 169, 177-178 (1993). The courts may 

deny enforcement of the subpoena if it is shown by firm evidence that: the subpoena 

was issued for an improper purpose, such as bad faith or harassment; or enforcement 

of the subpoena would infringe upon the right to freedom of association by compelling 

a private organization to reveal the identities of its existing members, subjecting them 

to harassment, and discouraging the recruitment of new members. U.S. v. Comley, 

890 F.2d 539, 542-44 (1st Cir. 1989). 

The Commission may enforce a subpoena against a contractor or a subcontractor of a 

licensee to investigate alleged unlawful discrimination. Five Star Products, supra; see 

also, Union Electric Co. (Callaway Plant, Units 1 & 2), ALAB-527, 9 NRC 126 (1979). 

The information sought by an administrative subpoena need only be “reasonably 

relevant” to the inquiry at hand. Pacific Gas & Electric Co. (Stanislaus Nuclear Project, 

Unit 1), ALAB-550, 9 NRC 683, 695 (1979); United States v. Construction Products 

Research, Inc., 73 F.3d 464, 471 (2nd Cir. 1996). 

Subpoenas must be issued in good faith, and pursuant to legitimate agency 

investigation. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 2), 

CLI-80-22, 11 NRC 724, 729 (1980). 

The district court must enforce agency subpoenas unless information is plainly 

incompetent and irrelevant to any lawful purpose of the agency. U.S. v. Oncology 

Services Corp., 60 F.3d 1015, 1020 (3rd Cir. 1995). 

The referral of matters to the Department of Justice for criminal proceedings, which are 

separate and distinct from matters covered by subpoenas issued by the Director of 

Office of Inspection and Enforcement, does not bar the Commission from pursuing its 

general health and safety and civil enforcement responsibilities through issuance of 

subpoena. Section 161(c) of AEA, 42 U.S.C. § 2201(c). Metropolitan Edison Co.

(Three Mile Island Nuclear Station, Unit 2), CLI-80-22, 11 NRC 724, 725 (1980). 

10 C.F.R. § 2.702(a) (formerly § 2.720(a)) contemplates ex parte applications for the 

issuance of subpoenas. Although the Chairman of the Licensing Board “may require a 

showing of general relevance of the testimony or evidence sought,” he is not obligated 

to do so. The matter of relevance can be entirely deferred until such time as a motion 

to quash or modify the subpoena raises the question of relevance. Pacific Gas and 

Electric Co. (Stanislaus Nuclear Project, Unit 1), ALAB-550, 9 NRC 683, 698 n.22 

(1979). 

A Licensing Board is required to issue a subpoena if the discovering party has made a 

showing of general relevance concerning the testimony or evidence sought. 

Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), ALAB-863, 

25 NRC 273, 279 (1987). 

Section 2.702(f) (formerly Section 2.720(f)) of the Rules of Practice specifically 

provides that a Licensing Board may condition the denial of a motion to quash or 

modify a subpoena duces tecum “on just and reasonable terms.” That phrase is 

JUNE 2011 PREHEARING MATTERS 187
expansive enough in reach to allow the imposition of a condition that the subpoenaed 

person or company be reimbursed for document production costs. Pacific Gas and 

Electric Co. (Stanislaus Nuclear Project, Unit 1), ALAB-550, 9 NRC 683, 698-699 

(1979). 

The Commission denied a motion to quash a Staff subpoena where the subpoenaed 

individual simply alleged that the records sought by the subpoena contained 

information of Staff misconduct. Richard E. Dow, CLI-91-9, 33 NRC 473, 478-79 

(1991). 

Generally, document production costs will not be awarded unless they are found to be 

not reasonably incident to the conduct of a respondent’s business. Stanislaus, supra, 

9 NRC at 702. 

Where a party has filed objections to one or more interrogatories or document requests 

or set forth partial, albeit incomplete, answers in a discovery response, the last 

sentence of Section 2.705(h) (formerly Section 2.740(f)) has no applicability. The 

proper procedure in such a situation is for the party opposing the discovery to await the 

filing of a motion to compel and then respond to that motion. Louisiana Energy 

Services, L.P. (Claiborne Enrichment Center), LBP-94-38, 40 NRC 309, 310 (1994). 

Under 10 C.F.R. § 2.705(h), the presiding officer of a proceeding will rule upon motions 

to compel discovery which set forth the questions contained in the interrogatories, the 

responses of the party upon whom they were served, and arguments in support of the 

motion to compel discovery. An evasive or incomplete answer or response to an 

interrogatory shall be treated as a failure to answer or respond. Houston Lighting & 

Power Co. (South Texas Project, Units 1 & 2), LBP-79-5, 9 NRC 193, 194-195 (1979). 

Specific objections must be made to the alleged inadequacy of discrete responses. 

South Texas, supra, 9 NRC at 195. 

A discovering party is entitled to direct answers or objections to each and every 

interrogatory posed. Objections should be plain enough and specific enough so that it 

can be understood in what way the interrogatories are claimed to be objectionable. 

General objections are insufficient. The burden of persuasion is on the objecting party 

to show that the interrogatory should not be answered, that the information called for is 

privileged, not relevant, or in some way not the proper subject of an interrogatory. 

Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), LBP-82-116, 16 NRC 1937, 

1944 (1982). 

A motion to compel is required under the rules to set forth detailed bases for Board 

action, including arguments in support of the motion. 10 C.F.R. § 2.705(h) (formerly 

§ 2.740(f)). This means that relief will only be granted against a party resisting further 

discovery when the movant gives particularized and persuasive reasons for it. 

Generalized claims that answers are evasive or that objections are unsubstantial will 

not suffice. The movant must address each interrogatory, including consideration of 

the objection to it, point by point. Duke Power Co. (Catawba Nuclear Station, Units 1 

& 2), LBP-82-116, 16 NRC 1937, 1950 (1982). 

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2.12.5.1 Compelling Discovery from ACRS and ACRS Consultants

Although 10 C.F.R. § 2.709 (formerly § 2.720) does not explicitly cover consultants 

for advisory boards like the ACRS, it may fairly be read to include them where they 

have served in that capacity. Therefore, a party seeking to subpoena consultants to 

the ACRS may do so but must show the existence of exceptional circumstances 

before the subpoenas will be issued. Pacific Gas and Electric Co. (Diablo Canyon 

Nuclear Power Plant, Units 1 & 2), ALAB-519, 9 NRC 42, 42 n.2 (1979). 

The ACRS is an independent federal advisory committee that is not under the 

Staff’s control. In the context of an uncontested (“mandatory”) hearing, a Board may 

ask the Staff to produce relevant ACRS documents that it has reviewed but should 

not ask the Staff to obtain additional ACRS documents that it has not reviewed. 

Exelon Generation Co., LLC; Sys. Energy Res., Inc. (Early Site Permit for Clinton 

ESP Site; Early Site Permit for Grand Gulf ESP Site), CLI-06-20, 64 NRC 15, 25-26 

(2006). 

2.12.5.2 Sanctions for Failure to Comply with Discovery Orders

10 C.F.R. § 2.320 (formerly § 2.707) authorizes the presiding officer to impose 

various sanctions on a party for its failure to, among other things, comply with a 

discovery order. Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), LBP-83-

56, 18 NRC 421, 433 (1983). Those sanctions include a finding of facts as to the 

matters regarding which the order was made in accordance with the claim of the 

party obtaining the order. Pursuant to 10 C.F.R. § 2.320 (formerly § 2.707), the 

failure of a party to comply with a Board’s discovery order constitutes a default for 

which a Board may make such orders in regard to the failure as are just. Duke 

Power Co. (Catawba Nuclear Station, Units 1 & 2), LBP-83-29A, 17 NRC 1121, 

1122 (1983); Kerr-McGee Chemical Corp. (West Chicago Rare Earths Facility), 

LBP-86-4, 23 NRC 75, 80 (1986). 

A Licensing Board may dismiss the contentions of an intervenor who has failed to 

respond to an applicant’s discovery requests, particularly where the intervenor has 

failed to file a response to the applicant’s motion for summary disposition. Carolina 

Power and Light Co. and North Carolina Eastern Municipal Power Agency

(Shearon Harris Nuclear Power Plant), ALAB-856, 24 NRC 802, 810 (1986). An 

intervenor’s alleged poor preparation of a contention and a related motion for 

summary disposition, as distinguished from the intervenor’s failure to respond at all 

to discovery requests, does not warrant the dismissal of the intervenor’s contention. 

Kerr-McGee Chemical Corp. (West Chicago Rare Earths Facility), LBP-89-35, 

30 NRC 677, 679 (1989), vacated and reversed on other grounds, ALAB-944, 

33 NRC 81 (1991). 

Pursuant to 10 C.F.R. § 2.320 (formerly § 2.707), an intervenor can be dismissed 

from the proceeding for its failure to comply with discovery orders. Northern States 

Power Co. (Tyrone Energy Park, Unit 1), LBP-77-37, 5 NRC 1298 (1977); Offshore 

Power Systems (Manufacturing License for Floating Nuclear Power Plants), 

LBP-75-67, 2 NRC 813 (1975); Public Service Electric & Gas Co. (Atlantic 

Generating Station, Units 1 & 2), LBP-75-62, 2 NRC 702 (1975). 

JUNE 2011 PREHEARING MATTERS 189
Intervenors were dismissed from a proceeding when the Board determined that: the 

intervenors had engaged in a willful, bad faith strategy to obstruct discovery; the 

intervenors’ actions and omissions prejudiced the applicant and the integrity of the 

adjudicatory process; and the imposition of lesser sanctions earlier in the 

proceeding had failed to correct the intervenors’ actions. Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), LBP-88-24, 28 NRC 311, 375-77 (1988), 

rev’d in part and vacated in part, ALAB-902, 28 NRC 423 (1988), review denied and 

stay denied, CLI-88-11, 28 NRC 603 (1988). Where multiple Licensing Boards are 

presiding over different portions of an operating license proceeding, an individual 

Licensing Board’s authority to order the dismissal of a party applies only to the 

hearing over which it has jurisdiction, and does not extend to those portions of the 

proceeding pending before the other Licensing Boards. A party who seeks the 

dismissal of another party from the entire proceeding must request the sanction of 

dismissal from each of the Boards before which different parts of the proceeding are 

pending. Shoreham, supra, 28 NRC at 428-30, review denied and stay denied, 

CLI-88-11, 28 NRC 603 (1988). On directed certification from the Appeal Board of 

the intervenors’ appeal of their dismissal as parties by the OL-3 Licensing Board 

(which issued LBP-88-24, supra), the Commission determined that the intervenors’ 

conduct before the Licensing Board warranted their dismissal as parties from all 

proceedings pending before the Commission. Long Island Lighting Co. (Shoreham 

Nuclear Power Station, Unit 1), CLI-89-2, 29 NRC 211, 231-32 (1989). 

A licensee’s motion for sanctions against an intervenor for failure to comply with 

discovery requests poses a three-part consideration: (1) due process for the 

licensee; (2) due process for the intervenor; and (3) an overriding consideration of 

the public interest in a complete evidentiary record. Metropolitan Edison Co. (Three 

Mile Island Nuclear Station, Unit 1), LBP-80-17, 11 NRC 893, 897 (1980). 

Counsel’s allegations of certain problems as excuses for intervenor’s failure to 

provide discovery did not justify reconsideration of the Board’s imposition of 

sanctions for such failure, where such allegations were expressly dealt with in the 

Board’s order compelling discovery. Nor can an intervenor challenge the sanctions 

on the grounds that other NRC cases involved lesser sanctions, where the 

intervenor has willfully and deliberately refused to supply the evidentiary bases for 

its admitted contentions. Commonwealth Edison Co. (Byron Nuclear Power Station, 

Units 1 & 2), LBP-82-5, 15 NRC 209, 213-214 (1982). See, however, ALAB-678, 

15 NRC 1400 (1982), reversing the Byron Licensing Board’s dismissal of intervenor 

for failure to comply with discovery orders on the ground that such a sanction was 

too severe in the circumstances. 

The sanction of dismissal from an NRC licensing proceeding is to be reserved for 

the most severe instances of a participant’s failure to meet its obligations. In 

selecting a sanction, Licensing Boards are to consider the relative importance of the 

unmet obligation; its potential harm to other parties or the orderly conduct of the 

proceeding; whether its occurrence is an isolated incident or a part of a pattern of 

behavior; the importance of the safety or environmental concerns raised by the party 

and all of the circumstances. Commonwealth Edison Co. (Byron Nuclear Power 

Station, Units 1 & 2), ALAB-678, 15 NRC 1400 (1982), citing Statement of Policy on 

Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 454 (1981); Duke Power 

Co. (Catawba Nuclear Station, Units 1 & 2), LBP-82-116, 16 NRC 1937, 1947 

(1982); Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), 

PREHEARING MATTERS 190 JUNE 2011
LBP-83-20A, 17 NRC 586, 590 (1983), citing Wisconsin Electric Power Co. (Point 

Beach Nuclear Plant, Unit 1), ALAB-719, 17 NRC 387, 392 (1983); Kerr-McGee 

Chemical Corp. (Kress Creek Decontamination), LBP-85-48, 22 NRC 843, 848-49 

(1985); Kerr-McGee Chemical Corp. (West Chicago Rare Earths Facility), LBP-86-4, 

23 NRC 75, 80-81 (1986); Long Island Lighting Co. (Shoreham Nuclear Power 

Station, Unit 1), LBP-88-24, 28 NRC 311, 365-68 (1988); Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), CLI-89-2, 29 NRC 211, 223 (1989). 

The refusal of any party to make its witnesses available to participate in the 

prehearing examinations is an abandonment of its right to present the subject 

witness and testimony. An intervenor’s intentional waiver of both the right to crossexamine and the right to present witnesses amounts to an effective abandonment of 

their contention. Long Island Lighting Co. (Shoreham Nuclear Power Station, 

Unit 1), LBP-82-115, 16 NRC 1923, 1935, 1936 (1982). 

Although failure to comply with a Board order to respond to interrogatories may 

result in adverse findings of fact, the Board need not decide what adverse findings 

to adopt until action is necessary. When another procedure has been adopted 

requiring intervenors to shoulder the burden of going forward on a motion for 

summary disposition, it may be appropriate to await intervenor’s filing on summary 

disposition, before deciding whether or not to impose sanctions for failure to 

respond to interrogatories pursuant to a Board order. Sanctions only will be 

appropriate if failure to respond prejudices applicant in the preparation of its case. 

Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Units 1 & 2), LBP-82-10, 

15 NRC 341, 344 (1982). 

Where an intervenor has failed to comply with discovery requests and orders, the 

Licensing Board may alter the usual order of presentation of evidence and require 

an intervenor that would normally follow a licensee, to proceed with its case first. 

Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-772, 

19 NRC 1193, 1245 (1984), rev’d in part on other grounds, CLI-85-2, 21 NRC 282 

(1985). See Northern States Power Co. (Tyrone Energy Park, Unit 1), LBP-77-37, 

5 NRC 1298, 1300-01 (1977), cited with approval in Pennsylvania Power and Light 

Co. (Susquehanna Steam Electric Station, Units 1 & 2), ALAB-613, 12 NRC 317, 

338 (1980); Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, 

Units 1 & 2), ALAB-459, 7 NRC 179, 188 (1978); 10 C.F.R. § 2.324 (formerly 

§ 2.731). 

2.12.6 Appeals of Discovery Rulings

A Licensing Board order granting discovery against a third party is a final order for 

which appellate review may be sought; an order denying such discovery is 

interlocutory, and an appeal is not permitted. Consumers Power Co. (Midland Plant, 

Units 1 & 2), ALAB-122, 6 AEC 322 (1973); Commonwealth Edison Co. (Zion Station, 

Units 1 & 2), ALAB-116, 6 AEC 258 (1973). 

Motions to reconsider Board orders must be made promptly, generally within ten 

(10) days of the date of issuance. In some cases, even shorter filing deadlines will be 

imposed. Once the opportunity to file a motion for reconsideration has run, the Board’s 

rulings become the law of the case and may not subsequently be challenged 

JUNE 2011 PREHEARING MATTERS 191
successfully. Georgia Power Co., et al. (Vogtle Electric Generating Plant, Units 1 & 2), 

LBP-94-16, 39 NRC 257, 259 (1994). 

Interlocutory review of a discovery order is warranted when the alleged harm would be 

immediate and could not be redressed through future review of a final decision of the 

Licensing Board. Georgia Power Co., et al. (Vogtle Electric Generating Plant, Units 1 

& 2), CLI-94-5, 39 NRC 190, 193 (1994). 

A discovery order entered against a non-party is a final order and thus is appealable. 

Pacific Gas and Electric Co. (Stanislaus Nuclear Project, Unit 1), ALAB-550, 

9 NRC 683, 686 n.1 (1979); Consumers Power Co. (Midland Plant, Units 1 & 2), 

ALAB-764, 19 NRC 633, 636 n.1 (1984). 

Typically, discovery orders can be reviewed on appeal following a final judgment. A 

claim of privilege is not alone sufficient to justify interlocutory review. Georgia Power 

Co., et al. (Vogtle Electric Generating Plant, Units 1 & 2), CLI-95-15, 42 NRC 181, 184 

(1995). 

Earlier case law suggests that where a non-party desires to appeal a discovery order 

against him, the proper procedure is for such person to enter a special appearance 

before the Licensing Board and then file an appropriate appeal. Kansas Gas & Electric 

Co. (Wolf Creek Nuclear Generating Station, Unit 1), ALAB-311, 3 NRC 85 (1976). 

To establish reversible error from the curtailment of discovery procedures, a party must 

demonstrate that such curtailment made it impossible to obtain crucial evidence. 

Implicit in such a showing is proof that more diligent discovery was impossible. 

Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), ALAB-303, 

2 NRC 858, 869 (1975). The Appeal Board refused to review a discovery ruling 

referred to it by a Licensing Board when the Board below did not explain why it 

believed Appeal Board involvement was necessary, where the losing party had not 

indicated that it was unduly burdened by the ruling and where the ruling was not novel. 

Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-438, 6 NRC 638 (1977). 

The aggrieved party must make a strong showing that the impact of the discovery 

order upon that party or upon the public interest is indeed “unusual.” 

Questions about the scope of discovery concern matters which are particularly within a 

trial Board’s competence and appellate review of such rulings is usually best 

conducted at the end of case. Pennsylvania Power & Light Co. (Susquehanna Steam 

Electric Station, Units 1 & 2), ALAB-613, 12 NRC 317, 321 (1980). 

2.12.7 Discovery in High-Level Waste Licensing Proceedings 

2.12.7.1 Pre-License Application Licensing Board

Pursuant to 10 C.F.R. § 2.1010, a Pre-License Application Licensing Board is 

authorized to resolve questions concerning: access to the Licensing Support 

Network (LSN); the entry of documentary material into the LSN; discovery 

requests; and the development and operation of the LSN. 

PREHEARING MATTERS 192 JUNE 2011
2.12.7.2 Licensing Support Network (Formerly Licensing Support System)

The LSN is an electronic information management system, established pursuant to 

Subpart J of 10 C.F.R. Part 2, which contains the documentary material generated 

by the participants in the high-level waste licensing proceeding as well as NRC 

orders and decisions related to the proceeding. “The LSN functions as a 

mechanism for early collection of all extant documents that normally would be 

collected later through traditional discovery.” U.S. Department of Energy

(High-Level Waste Repository), CLI-08-22, 68 NRC 355, 358 (2008). In June 2004 

the Commission updated the rules on the LSN and established basic requirements 

and standards for submission of adjudicatory materials to the electronic docket for 

the high-level waste (HLW) repository licensing proceeding, and addressed the 

issue of reducing unnecessary loading of duplicate documents into the system, 

obligations of LSN participants to update their documentary material, and provisions 

on material that could be excluded from the LSN. Licensing Proceeding for a HighLevel Radioactive Waste Geologic Repository; Licensing Support Network, 

Submissions to the Electronic Docket, 69 Fed. Reg. 32,836 (June14, 2004). 

Pursuant to 10 C.F.R. § 2.1003(a)(1), subject to the noted exclusions, parties must 

make available on the LSN all “documentary material (including circulated drafts but 

excluding preliminary drafts).” Documentary material includes (1) documents upon 

which the applicant will rely; (2) relevant information known to, possessed by, or 

developed by the applicant but that does not support the applicant’s position; and 

(3) relevant reports and studies, which includes basic documents relevant to 

licensing. 10 C.F.R. § 2.1001. A circulated draft is “a nonfinal document circulated 

for supervisory concurrence or signature in which the original author or others in the 

concurrence process have non-concurred.” 10 C.F.R. § 2.1001. 

Participants are expected to make a “good faith effort” to make all documentary 

material available by the date specified for initial compliance in 

10 C.F.R. § 2.1003(a). U.S. Dep’t. of Energy (High-Level Waste Repository), 

CLI-08-22, 68 NRC 355, 358 (2008). In determining whether DOE had met this 

“good faith effort” standard, the Board stated that factors to be considered in 

determining whether the “good faith effort” standard has been met include the time 

DOE has had to produce such documents, the purpose and importance of DOE’s 

production obligation, and DOE’s status and financial ability. U.S. Dept. of Energy

(High-Level Waste Repository), LBP-04-20, 60 NRC 300, 314-315 (2004). 

Before certifying all documents are available, a complete privilege review is required 

and the full text of all nonprivileged documents must be made available. See

High-Level Waste Repository, LBP-04-20, 60 NRC at 319. 

The duty to supplement document production pursuant to 10 C.F.R. § 2.1003(e) is 

not a mechanism to submit documents created before initial certification. See

High-Level Waste Repository, LBP-04-20, 60 NRC at 327. Participants must make 

a diligent and “good faith” effort to include all after-created and after-discovered 

documents in each monthly LSN supplementation. U.S. Dep’t of Energy (HighLevel Waste Repository), LBP-09-06, 69 NRC 367, 387 (2009), rev’d in part on 

other grounds, CLI-09-14, 69 NRC 580 (2009). 

JUNE 2011 PREHEARING MATTERS 193
Subpart J requires participants to make their documentary material electronically 

available on the LSN. Documentary material must be indexed on the central LSN 

site so that its integrity and stability are assured and it can be accessed through the 

single, consistent central LSN site search engine. Merely making documentary 

material available by loading it onto the participant’s own server and making the 

material available for indexing by the LSN Administrator does not satisfy this 

requirement. High-Level Waste Repository, LBP-04-20, 60 NRC at 330-33. 

DOE’s 10 C.F.R. § 2.1009(b) certification letter was facially deficient because it 

excluded the word “all” before “documents submitted to the CACI.” High-Level 

Waste Repository, LBP-04-20, 60 NRC at 339 (internal quotation marks omitted). 

Section 2.1003 requires that “all documents” be made available, and the certification 

letter must so indicate. Id.

A draft document must be placed on the LSN when it has received a 

nonconcurrence satisfying the definition of “circulated draft” set forth in 

10 C.F.R. § 2.1001. The heart of the definition of circulated draft is the meaning of 

nonconcurrence. The three elements of nonconcurrence include the following: 

(1) a nonconcurrence must be part of a formalized process; (2) a nonconcurrence 

must be unresolved, with the original author or others in the concurrence process in 

disagreement with the final product; and (3) the decisionmaking on the document 

must be completed. Thus, for purposes of availability on the LSN, in order for 

documentary material to be considered to be a “circulated draft,” it must have 

received a nonconcurrence in a formalized process and the decisionmaking on the 

document must be complete. U.S. Dep’t. of Energy (High-Level Waste Repository), 

CLI-06-5, 63 NRC 143, 158-59 (2006). 

Subpart J does not treat drafts of the license application for the high-level waste 

facility at Yucca Mountain as either Class 1 or Class 2 documentary material, which 

would require they be made available on the Licensing Support Network. HighLevel Waste Repository, CLI-06-5, 63 NRC at 150-52. Similarly, a draft of the 

license application for the high-level waste facility at Yucca Mountain is not a 

Class 3 circulated draft report or study under Subpart J, and should not be made 

available on the LSN. Id. at 157. 

PREHEARING MATTERS 194 JUNE 2011
JUNE 2011 HEARINGS-TABLE OF CONTENTS i 

TABLE OF CONTENTS 

HEARINGS

3.0 HEARINGS ................................................................................. H 1 

3.1 Licensing Board ........................................................................ H 1 

3.1.1 General Role/Power of Licensing Board ..................................... H 1 

3.1.1.1 Role and Authority of the Chief Judge ........................................ H 3 

3.1.2 Scope of Jurisdiction of Licensing Board .................................... H 3 

3.1.2.1 Jurisdiction Grant from Commission ........................................... H 3 

3.1.2.1.1 Effect of Commission Decisions/Precedent ................................ H 6 

3.1.2.2 Authority in Construction Permit Proceedings Distinguished 

 from Authority in Operating License Proceedings .................... H 7 

3.1.2.2.A Scope of Authority in Construction Permit Proceedings ............. H 8 

3.1.2.2.B Scope of Authority in Operating License Proceedings ................ H 9 

3.1.2.3 Scope of Authority in Uncontested Proceedings 

 (“Mandatory Hearings”) ............................................................ H 12 

3.1.2.4 Scope of Authority in License Amendment Proceedings ............ H 13 

3.1.2.5 Scope of Authority to Rule on Petitions and Motions .................. H 14 

3.1.2.6 Scope of Authority to Reopen the Record .................................. H 16 

3.1.2.7 Scope of Authority to Rule on Contentions ................................. H 17 

3.1.2.8 Authority of Licensing Board to Raise Sua Sponte Issues .......... H 18 

3.1.2.9 Expedited Proceedings; Timing of Rulings ................................. H 21 

3.1.2.10 Licensing Board’s Relationship with the NRC Staff .................... H 23 

3.1.2.11 Licensing Board’s Relationship with States and Other 

 Agencies (Including the Council on Environmental Quality) .... H 28 

3.1.2.12 Conduct of Hearing by Licensing Board ..................................... H 30 

3.1.2.12.1 Powers/Role of Presiding Officer ................................................ H 32 

3.1.3 Quorum Requirements for Licensing Board Hearing .................. H 34 

3.1.4 Disqualification of a Licensing Board Member ............................ H 34 

3.1.4.1 Motion to Disqualify Adjudicatory Board Member ....................... H 34 

3.1.4.2 Grounds for Disqualification of Adjudicatory Board Member ...... H 36 

3.1.4.3 Improperly Influencing an Adjudicatory Board Decision ............. H 39 

3.1.5 Resignation of a Licensing Board Member ................................. H 39 

3.2 Export Licensing Hearings ...................................................... H 40 

3.2.1 Scope of Export Licensing Hearings ........................................... H 40 

3.2.2 Standing to Intervene in Export License Hearings ...................... H 40 

3.2.3 Hearing Requests ....................................................................... H 40 

3.3 Hearing Scheduling Matters .................................................... H 40 

3.3.1 Scheduling of Hearings ............................................................... H 40 

3.3.1.1 Public Interest Requirements re Hearing Schedule .................... H 43 

3.3.1.2 Convenience of Litigants re Hearing Schedule ........................... H 43 

3.3.1.3 Adjourned Hearings (RESERVED) ............................................. H 43 

3.3.2 Postponement of Hearings ......................................................... H 44 

3.3.2.1 Factors Considered in Hearing Postponement ........................... H 44 

3.3.2.2 Effect of Plant Deferral on Hearing Postponement ..................... H 45 
JUNE 2011 HEARINGS-TABLE OF CONTENTS ii 

3.3.2.3 Sudden Absence of ASLB Member at Hearing ........................... H 45 

3.3.2.4 Time Extensions for Case Preparation Before Hearing .............. H 46 

3.3.3 Scheduling Disagreements Among Parties ................................ H 46 

3.3.4 Appeals of Hearing Date Rulings ................................................ H 47 

3.3.5 Location of Hearing (RESERVED) .............................................. H 47 

3.3.5.1 Public Interest Requirements re Hearing 

 Location (RESERVED) ............................................................ H 47 

3.3.5.2 Convenience of Litigants Affecting Hearing Location ................. H 47 

3.3.6 Consolidation of Hearings and of Parties .................................... H 48 

3.3.7 In Camera Hearings .................................................................... H 49 

3.4 Issues for Hearing..................................................................... H 49 

3.4.1 Intervenor’s Contentions – Admissibility at Hearing .................... H 53 

3.4.2 Issues Not Raised by Parties (Also See Section 3.1.2.7) ........... H 55 

3.4.3 Issues Not Addressed by a Party ................................................ H 56 

3.4.4 Separate Hearings on Special Issues ......................................... H 57 

3.4.5 Construction Permit Extension Proceedings ............................... H 57 

3.4.5.1 Scope of Construction Permit Extension Proceedings ............... H 58 

3.4.5.2 Contentions in Construction Permit Extension Proceedings ....... H 60 

3.4.6 Motion to Strike ........................................................................... H 61 

3.4.7 Result of Withdrawal of a Party ................................................... H 61 

3.5 Summary Disposition ............................................................... H 61 

 (Also see Section 5.8.4) 

3.5.1 Applicability of Federal Rules Governing Summary Judgment ... H 61 

3.5.2 Standard for Granting/Denying a Motion for Summary 

 Disposition ............................................................................... H 62 

3.5.3 Burden of Proof with Regard to Summary Disposition Motions .. H 65 

3.5.4 Contents of Motions for/Responses to Summary Disposition ..... H 68 

3.5.5 Time for Filing Motions for Summary Disposition ....................... H 71 

3.5.6 Time for Filing Responses to Summary Disposition Motions ...... H 72 

3.5.7 Role/Power of Licensing Board in Ruling on Summary 

 Disposition Motions .................................................................. H 72 

3.5.7.1 Operating License Hearings ....................................................... H 74 

3.5.7.2 Construction Permit Hearings ..................................................... H 75 

3.5.7.3 Amendments to Existing Licenses .............................................. H 75 

3.5.8 Summary Disposition: Mootness ............................................... H 75 

3.5.9 Contents of Summary Disposition Orders ................................... H 76 

3.5.10 Appeals from Rulings on Summary Disposition .......................... H 76 

 

3.6 Other Dispositive Motions/Failure to State a Claim ............... H 77 

3.7 Attendance at and Participation in Hearings ......................... H 77 

3.8 Burden and Means of Proof ..................................................... H 78 

3.8.1 Duties of Applicant/Licensee ....................................................... H 80 

3.8.2 Intervenor's Contentions – Burden and Means of Proof ............. H 81 

3.8.3 Specific Issues – Means of Proof ................................................ H 82 

3.8.3.1 Exclusion Area Controls .............................................................. H 82 
JUNE 2011 HEARINGS-TABLE OF CONTENTS iii 

3.8.3.2 Need for Facility .......................................................................... H 83 

3.8.3.3 Burden and Means of Proof in Interim Licensing Suspension 

 Cases .......................................................................................... H 84 

3.8.3.4 Availability of Uranium Supply .................................................... H 85 

3.8.3.5 Environmental Costs (RESERVED) ............................................ H 85 

3.8.3.5.1 Cost of Withdrawing Farmland from Production ......................... H 85 

 (Also see Section 6.16.6.1.1) 

3.8.3.6 Alternate Sites Under NEPA ....................................................... H 85 

3.8.3.7 Management Capability .............................................................. H 85 

3.9 Burden of Persuasion (Degree of Proof) ................................ H 87 

3.9.1 Environmental Effects Under NEPA ........................................... H 87 

3.10 Stipulations ............................................................................... H 87 

3.11 Official Notice of Facts ............................................................. H 88 

3.12 Evidence .................................................................................... H 90 

3.12.1 Rules of Evidence ....................................................................... H 91 

3.12.1.1 Admissibility of Evidence ............................................................ H 91 

3.12.1.1.1 Admissibility of Hearsay Evidence .............................................. H 92 

3.12.1.2 Hypothetical Questions ............................................................... H 93 

3.12.1.3 Reliance on Scientific Treatises, Newspapers, Periodicals ........ H 93 

3.12.1.4 Off-the-Record Comments .......................................................... H 93 

3.12.1.5 Presumptions and Inferences ..................................................... H 93 

3.12.1.6 Government Documents ............................................................. H 94 

3.12.2 Status of ACRS Letters ............................................................... H 94 

3.12.3 Presentation of Evidence by Intervenors .................................... H 95 

3.12.4 Evidentiary Objections ................................................................ H 95 

3.12.5 Statutory Construction; Weight ................................................... H 95 

3.12.5.1 Due Process .............................................................................. H 96 

3.12.5.2 Bias or Prejudgment, Disqualification ......................................... H 97 

3.13 Witnesses at Hearing ................................................................ H 97 

3.13.1 Compelling Appearance of Witness ............................................ H 98 

3.13.1.1 NRC Staff as Witnesses ............................................................. H 98 

3.13.1.2 ACRS Members as Witnesses .................................................... H 99 

3.13.2 Sequestration of Witnesses ........................................................ H 99 

3.13.3 Board Witnesses ......................................................................... H 99 

3.13.4 Expert Witnesses ........................................................................ H 100 

3.13.4.1 Fees for Expert Witnesses .......................................................... H 102 

3.14 Cross-Examination ................................................................... H 103 

3.14.1 Cross-Examination by Intervenors .............................................. H 104 

3.14.2 Cross-Examination by Experts .................................................... H 106 

3.14.3 Inability to Cross-Examine as Grounds to Reopen ..................... H 106 

3.15 Record of Hearing ..................................................................... H 106 

3.15.1 Supplementing Hearing Record by Affidavits ............................. H 107 
JUNE 2011 HEARINGS-TABLE OF CONTENTS iv 

3.15.2 Reopening Hearing Record ........................................................ H 107 

3.15.3 Material Not Contained in Hearing Record ................................. H 109 

3.16 Interlocutory Review via Directed Certification ..................... H 109 

3.17 Licensing Board Findings (See Also “Standards for

 Reversing Licensing Boards” in Section 5.6) ..................... H 109 

3.17.1 Independent Calculations by Licensing Board ............................ H 112 

3.18 Res Judicata and Collateral Estoppel ..................................... H 112 

3.19 Termination of Proceedings .................................................... H 119 

3.19.1 Procedures for Termination ........................................................ H 119 

3.19.2 Post-Termination Authority of Commission ................................. H 120 

3.19.3 Dismissal ..................................................................................... H 120 

3.20 Uncontested Proceedings (Mandatory Hearings) .................. H 120 
3.0 HEARINGS 

3.1 Licensing Board

3.1.1 General Role/Power of Licensing Board 

Normally, the Licensing Board is charged with compiling a factual record in a 

proceeding, analyzing the record, and making a determination based upon the record. 

The Commission will assume these functions of the Licensing Board only in 

extraordinary circumstances. Wash. Pub. Power Supply Sys. (WPPSS Nuclear 

Project, Nos. 3 & 5), CLI-77-11, 5 NRC 719, 722 (1977); Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), CLI-84-8, 19 NRC 1154, 1155 (1984). 

The Licensing Board performs the important task of judging factual and legal disputes 

between parties, but it is not an institution trained or experienced in assessing the 

investigatory significance of raw evidence. Sequoyah Fuels Corp. (Gore, Oklahoma 

Site), CLI-95-16, 42 NRC 221, 225 (1995). 

A Licensing Board is not merely an evidence-gathering body. Rather, it has the 

responsibility for appraising ab initio the record developed before it and for formulating 

the agency’s initial decision based on that appraisal. Wis. Elec. Power Co. (Point 

Beach Nuclear Plant, Unit 2), ALAB-78, 5 AEC 319, 322 (1972). Licensing Boards 

have a duty not only to resolve contested issues, but also to articulate in reasonable 

detail the basis for the course of action chosen. A Board must do more than reach 

conclusions; it must confront the facts. La. Power & Light Co. (Waterford Steam 

Electric Station, Unit 3), ALAB-732, 17 NRC 1076, 1087 n.12 (1983), citing Pub. Serv. 

Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-422, 6 NRC 33, 41 

(1977), aff’d, CLI-78-1, 7 NRC 1 (1978), aff’d sub nom., New England Coalition on 

Nuclear Pollution v. NRC, 582 F.2d 87 (1st Cir. 1978). See also Carolina Power & 

Light Co. (Shearon Harris Nuclear Power Plant), ALAB-856, 24 NRC 802, 811 (1986); 

Philadelphia Elec. Co. (Limerick Generating Station, Units 1 & 2), ALAB-857, 

25 NRC 7, 14 (1987); Long Island Lighting Co. (Shoreham Nuclear Power Station, 

Unit 1), ALAB-905, 28 NRC 515, 533-34 (1988) (a Board is not required to make 

explicit findings if its decision otherwise articulates in reasonable detail the basis for its 

determinations). However, a Licensing Board is not required to refer specifically to 

every proposed finding. Limerick, ALAB-857, 25 NRC at 14. 

A decisionmaking body must confront the facts and legal arguments presented by the 

parties and articulate the reasons for its conclusions on disputed issues; i.e., it must 

take a hard look at the salient problems. Union Elec. Co. (Callaway Plant, Unit 1), 

ALAB-740, 18 NRC 343, 366 (1983), citing Seabrook, ALAB-422, 6 NRC at 41; Pac. 

Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-781, 

20 NRC 819, 836 (1984), aff’g in part LBP-82-70, 16 NRC 756 (1982). 

A Licensing Board is not required to do independent research or conduct de novo

review of an application in a contested proceeding, but may rely upon uncontradicted 

Staff and applicant evidence. Consumers Power Co. (Midland Plant, Units 1 & 2), 

ALAB-123, 6 AEC 331, 334-35 (1973); Boston Edison Co. (Pilgrim Nuclear Power 

Station), ALAB-83, 5 AEC 354, 358 (1972), aff’d, UCS v. AEC, 499 F.2d 1069 

(D.C. Cir. 1974). 

JUNE 2011 HEARINGS 1
The Licensing Board has the right and duty to develop a full record for decisionmaking 

in the public interest. Tex. Util. Generating Co. (Comanche Peak Steam Electric 

Station, Units 1 & 2), LBP-82-87, 16 NRC 1195, 1199 (1982). 

“If the rulings on the admission of contentions or the admitted contentions themselves 

raise novel legal or policy admissions, the Licensing Board should refer or certify such 

rulings or questions to the Commission on an interlocutory basis.” Duke Energy Corp.

(McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), 

CLI-01-20, 54 NRC 211, 213 (2001). 

Licensing Boards are authorized to certify questions or refer rulings to the Commission. 

10 C.F.R. §§ 2.319(l), 2.323(f) (formerly §§ 2.718(i), 2.730(f)); cf. Consumers Power 

Co. (Midland Plant, Units 1 & 2), LBP-83-28, 17 NRC 987, 989 n.1 (1983). 

When new information is submitted to the Licensing Board, it has the responsibility to 

review the information and decide whether it casts sufficient doubt on the safety of a 

facility. Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), 

LBP-83-52, 18 NRC 256, 258 (1983). 

A Licensing Board may conduct separate hearings on environmental issues and 

radiological health and safety issues. Absent persuasive reasons against 

segmentation, contentions raising environmental questions need not be heard at the 

health and safety stage of a proceeding, notwithstanding the fact they may involve 

public health and safety considerations. Pa. Power & Light Co. (Susquehanna Steam 

Electric Station, Units 1 & 2), LBP-80-18, 11 NRC 906, 908 (1980). 

It is impractical to delay licensing proceedings to await American Society of Mechanical 

Engineers (ASME) action. The responsibility of the Board is to form its own 

independent conclusions about licensing issues. Regulations that reference the ASME 

code were not intended to give over the Commission’s full rulemaking authority to a 

private organization on an ongoing basis; nor is a private organization intended to 

become the authority concerning criteria necessary to the issuance of a license. Tex. 

Util. Generating Co. (Comanche Peak Steam Electric Station, Units 1 & 2), LBP-83-33, 

18 NRC 27, 35 (1983). 

As a general principle, multiple Boards should not be established if it would likely result 

in duplicative work or conflicting rulings. Private Fuel Storage, L.L.C. (Independent 

Spent Fuel Storage Installation), LBP-03-8, 57 NRC 293, 312 (2003). 

A Board may express its preliminary concerns based on its review of early results from 

an applicant’s intensive review program which seeks to verify the design and 

construction quality assurance of the facility. The Board’s expression of its concerns 

during an early stage of the program may enable the applicant to modify its program in 

order to address more effectively the Board’s concerns and questions. Tex. Util. Elec. 

Co. (Comanche Peak Steam Electric Station, Units 1 & 2), LBP-86-20, 23 NRC 844, 

845 (1986). 

If an intervenor cannot present its case, the proper method to institute a proceeding by 

which the NRC would conduct its own investigation is to request action under 

10 C.F.R. § 2.206. It is not the Board’s function to assist intervenors in preparing their 

cases and searching for their expert witnesses. S.C. Elec. & Gas Co.

(Virgil C. Summer Nuclear Station, Unit 1), LBP-82-84, 16 NRC 1183, 1186 (1982). A 

HEARINGS 2 JUNE 2011
Licensing Board is not an intervenor’s advocate and has no independent obligation to 

compel the appearance of an intervenor’s witness. Carolina Power & Light Co.

(Shearon Harris Nuclear Power Plant), ALAB-843, 24 NRC 200, 215 (1986). 

Licensing Boards have the authority to call witnesses of their own, but the exercise of 

this discretion must be reasonable, and like other Licensing Board rulings, is subject to 

appellate review. A Board may take this extraordinary action only after (1) giving the 

parties to the proceeding every fair opportunity to clarify and supplement their previous 

testimony, and (2) showing why it cannot reach an informed decision without 

independent witnesses. S.C. Elec. & Gas Co. (Virgil C. Summer Nuclear Station, 

Unit 1), ALAB-710, 17 NRC 25, 27-28 (1983). 

Contractual disputes among electric utilities regarding, for example, interconnection 

and transmission provisions, rates for electric power and services, and cost-sharing 

agreements, are matters that do not fall within the jurisdiction of the Licensing Board 

and should properly be addressed to the Federal Energy Regulatory Commission 

(FERC) or state agencies that regulate electric utilities. Gulf States Util. Co. (River 

Bend Station, Unit 1), LBP-94-3, 39 NRC 31; aff’d, CLI-94-10, 40 NRC 43 (1994). 

A Licensing Board may appoint a special assistant to act as a settlement judge, 

consistent with the provisions of 10 C.F.R. § 2.322 (formerly § 2.722). Cameo 

Diagnostic Ctr., Inc., LBP-94-13, 39 NRC 249 (1994). 

Board adjudication of contentions is only appropriate insofar as those contentions 

present actual, live controversies. If the Board determines that a contention does not, 

in fact, present a live controversy – for instance, because all parties involved seek the 

same result – the Board must refrain from adjudicating it. Hydro Res., Inc.

(P.O. Box 777, Crownpoint, N.M. 87313), LBP-05-17, 62 NRC 77, 91-92 (2005). 

3.1.1.1 Role and Authority of the Chief Judge 

The Chief Administrative Judge of the Licensing Board Panel is empowered to: 

(1) establish two or more Licensing Boards to hear and decide discrete portions of a 

licensing proceeding; and (2) determine which portions will be considered by one 

Board as distinguished from another. Pub. Serv. Co. of N.H. (Seabrook Station, 

Units 1 & 2), ALAB-916, 29 NRC 434 (1989); Private Fuel Storage, L.L.C.

(Independent Spent Fuel Storage Facility), CLI-98-7, 47 NRC 307, 311 (1998). 

The Commission expects the Chief Administrative Judge to exercise his authority to 

establish multiple boards only when: (1) the proceeding involves discrete and 

separable issues; (2) the issues can be more expeditiously handled by multiple 

Boards than by a single Board; and (3) the multiple Boards can conduct the 

proceeding in a manner that will not unduly burden the parties. Private Fuel 

Storage, L.L.C., CLI-98-7, 47 NRC at 311. 

3.1.2 Scope of Jurisdiction of Licensing Board 

3.1.2.1 Jurisdiction Grant from Commission 

A Licensing Board has only the jurisdiction and power which the Commission 

delegates to it. Pub. Serv. Co. of Ind. (Marble Hill Nuclear Generating Station, 

JUNE 2011 HEARINGS 3
Units 1 & 2), ALAB-316, 3 NRC 167 (1976); Duke Power Co. (Catawba Nuclear 

Station, Units 1 & 2), ALAB-825, 22 NRC 785, 790 (1985); Pub. Serv. Co. of Ind.

(Marble Hill Nuclear Generating Station, Units 1 & 2), LBP-86-37, 24 NRC 719, 725 

(1986); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), 

LBP-88-7, 27 NRC 289, 291 (1988). See also Consol. Edison Co. of N.Y.; Power 

Auth. of N.Y. (Indian Point Nuclear Generating Unit 2; Indian Point Nuclear 

Generating Unit 3), LBP-82-23, 15 NRC 647, 649 (1982); Kerr-McGee Chem. Corp.

(West Chicago Rare Earths Facility), LBP-89-35, 30 NRC 677, 680 (1989), vacated 

and rev’d on other grounds, ALAB-944, 33 NRC 81 (1991), vacated as moot, CLI96-2, 43 NRC 13 (1996). Nevertheless, it has the power in the first instance to rule 

on the scope of its jurisdiction when it is challenged. Kan. Gas & Elec. Co. (Wolf 

Creek Nuclear Generating Station, Unit 1), ALAB-321, 3 NRC 293, 298 (1976), aff’d, 

CLI-77-1, 5 NRC 1 (1977); Cincinnati Gas & Elec. Co. (William H. Zimmer Nuclear 

Power Station, Unit 1), LBP-83-58, 18 NRC 640, 646 (1983), citing Duke Power Co.

(Perkins Nuclear Station, Units 1, 2 & 3), ALAB-591, 11 NRC 741, 742 (1980); 

Kerr-McGee Chem. Corp. (Kress Creek Decontamination), ALAB-867, 25 NRC 900, 

905 (1987); Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), LBP-89-4, 

29 NRC 62, 67 (1989), aff’d on other grounds, ALAB-918, 29 NRC 473 (1989), 

remanded on other grounds, Mass. v. NRC, 924 F.2d 311 (D.C. Cir. 1991), appeal 

dismissed as moot, ALAB-946, 33 NRC 245 (1991). Once a Board determines it 

has jurisdiction, it is entitled to proceed directly to the merits. Zimmer, LBP-83-58, 

18 NRC at 646, citing Duke Power Co. (Perkins Nuclear Station, Units 1, 2, & 3), 

ALAB-597, 11 NRC 870, 873 (1980). 

The presiding officer has only the jurisdiction delegated by the Commission, 

generally made via a hearing or a hearing opportunity notice. Fansteel Inc.

(Muskogee, Oklahoma Facility), LBP-03-13, 58 NRC 96, 100 (2003). 

The NRC possesses the authority to change its procedures on a case-by-case basis 

with timely notice to the parties involved. Nat’l Whistleblower Ctr. v. NRC, 

208 F.3d 256, 262 (D.C. Cir. 2000) quoting City of West Chicago v. NRC, 

701 F.2d 632, 647 (7th Cir. 1983) (citing NLRB v. Bell Aerospace Co., 416 U.S. 267, 

294 (1974)). 

A Licensing Board’s jurisdiction is defined by the Commission’s Notice of Hearing. 

Commonwealth Edison Co. (Zion Station, Units 1 & 2), ALAB-616, 12 NRC 419, 426 

(1980); Northern Ind. Pub. Serv. Co. (Bailly Generating Station, Nuclear-1), 

ALAB-619, 12 NRC 558, 565 (1980); Cincinnati Gas & Elec. Co. (William H. Zimmer 

Nuclear Station), LBP-79-24, 10 NRC 226, 298 (1979); Catawba, ALAB-825, 

22 NRC at 790. See Alfred J. Morabito (Senior Operator License for Beaver Valley 

Power Station, Unit 1), LBP-87-23, 26 NRC 81, 84 (1987); Gen. Pub. Util. Nuclear 

Corp. (Three Mile Island Nuclear Station, Unit 1), ALAB-881, 26 NRC 465, 476 

(1987); Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), 

LBP-89-15, 29 NRC 493, 504, 506 (1989); Long Island Lighting Co. (Shoreham 

Nuclear Power Station, Unit 1), LBP-91-1, 33 NRC 15, 20-21 (1991). 

A Licensing Board generally can neither enlarge nor contract the jurisdiction 

conferred by the Commission. Catawba, ALAB-825, 22 NRC at 790, citing

Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-235, 8 AEC 645, 647 

(1974); Three Mile Island, ALAB-881, 26 NRC at 476; Philadelphia Elec. Co.

HEARINGS 4 JUNE 2011
(Limerick Generating Station, Units 1 & 2), LBP-89-19, 30 NRC 55, 58, 59-60 

(1989). 

Where certain issues sought to be raised by an intervenor are not fairly within the 

scope of the issues for the proceeding as set forth in the Commission’s Notice of 

Hearing, such additional issues are beyond the jurisdiction of the Licensing Board to 

decide. Union Elec. Co. (Callaway Plant, Units 1 & 2), LBP-78-31, 8 NRC 366, 

370-71 (1978); Catawba, ALAB-825, 22 NRC at 790-91. See La. Energy Servs., 

L.P. (Claiborne Enrichment Ctr.), LBP-91-41, 34 NRC 332, 337-38, 344-45 (1991). 

The five notices and orders by which authority may be delegated to a Licensing 

Board include an order to initiate enforcement action (10 C.F.R. § 2.202); an order 

calling for a hearing on imposition of civil penalties (10 C.F.R. § 2.205(e)); a Notice 

of Hearing on an application for which a hearing must be provided 

(10 C.F.R. § 2.104); a notice of opportunity for a hearing on an application not 

covered by 10 C.F.R. § 2.104 (10 C.F.R. § 2.105); and notice of opportunity for a 

hearing on antitrust matters (10 C.F.R. § 2.102(d)(3)). 

Absent special circumstances, a Licensing Board may consider ab initio whether it 

has power to grant relief that has been specifically sought of it. Every tribunal 

possesses inherent rights and duties to determine in the first instance its own 

jurisdiction. Perkins, ALAB-591, 11 NRC at 742; Amergen Energy Co., LLC (Oyster 

Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 116 n.13 (2006). 

The regulation permitting the Board to enter protective orders, 10 C.F.R. § 2.705 

(formerly § 2.740), is procedural, and may not be read to enlarge the Licensing 

Board’s authority to areas that the Commission has clearly assigned to other offices. 

Sequoyah Fuels Corp. (Gore, Oklahoma Site), CLI-95-16, 42 NRC 221, 226 (1995). 

The effect of a policy statement of the Commission that deprives a Board of 

jurisdiction is to prohibit that Board from inquiring into the procedural regularity of 

the policy statement. Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant, 

Units 1 & 2), LBP-82-69, 16 NRC 751 (1982). 

When a proceeding is pending both before an ASLB and the Commission (in its 

reviewing capacity), and where the Licensing Board has previously issued a Notice 

of Hearing, jurisdiction to consider licensee’s motion to withdraw its application and 

terminate the proceedings lies in the first instance with the Licensing Board. See 10 

C.F.R. § 2.107; Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), LBP-99-

22, 49 NRC 481, 483 (1999). 

A Licensing Board which has been authorized to consider only the question of 

whether fundamental flaws were revealed by an exercise of an applicant’s 

emergency plan does not also have the authority to retain jurisdiction to determine 

whether the flaws have been corrected. Shoreham, LBP-88-7, 27 NRC at 291. 

Challenging a Commission rule falls outside the jurisdiction of the Licensing Board; 

however, “there are other avenues through which Petitioners may seek relief, 

including filing an enforcement petition under 10 C.F.R. § 2.206, a rulemaking 

petition under 10 C.F.R. § 2.802, or a request to the Commission under 

10 C.F.R. § 2.335 (formerly § 2.758) to make an exception or waive a rule based 

upon ‘special circumstances with respect to the subject matter of the particular 

JUNE 2011 HEARINGS 5
proceeding...such that...the rule...would not serve the purposes for which [it] was 

adopted.’” Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba 

Nuclear Station, Units 1 & 2), LBP-02-4, 55 NRC 49, 63 (2002). 

Where a Licensing Board has already dismissed a case, it no longer has jurisdiction 

over the matter. Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, 

Units 2 & 3), CLI-06-4, 63 NRC 32, 35 (2006), citing Philadelphia Elec. Co. (Limerick 

Generating Station, Units 1 & 2), ALAB-823, 22 NRC 773, 775 (1985). 

Even if the Licensing Board’s jurisdiction to hear a matter is in question, and has yet 

to be resolved, nothing prevents the Board from suggesting to the parties that they 

try to reach a settlement, as such a settlement could involve petitioner withdrawing 

its initiating papers, thereby rendering moot the issue of the Board’s jurisdiction. 

Oyster Creek, CLI-06-24, 64 NRC at 116 n.13. 

3.1.2.1.1 Effect of Commission Decisions/Precedent 

Where a matter has been considered by the Commission, it may not be 

reconsidered by a Board. Commission precedent must be followed. Va. Elec. & 

Power Co. (North Anna Nuclear Power Station, Units 1 & 2), ALAB-584, 

11 NRC 451, 463-65 (1980); Pac. Gas & Elec. Co. (Diablo Canyon Nuclear 

Power Plant, Units 1 & 2), LBP-86-21, 23 NRC 849, 859, 871-72 (1986). 

Pending future developments that could overrule controlling Commission 

precedent, Boards have held inadmissible a contention (or portion thereof) 

relying on an argument that a controlling Commission decision was wrongly 

decided. See, e.g., Pa’ina Hawaii, LLC, LBP-06-4, 63 NRC 99, 113-14 (2006) 

(ruling on National Environmental Policy Act (NEPA) terrorism contention based 

on Commission precedent despite the pendency of a Circuit Court of Appeals 

review of an analogous issue). 

Licensing Boards are bound to comply with directives of a higher tribunal, 

whether they agree with them or not. The same is true with respect to 

Commission review of Appeal Board action and judicial review of agency action. 

Any other alternative would be unworkable and would unacceptably undermine 

the rights of the parties. S.C. Elec. & Gas Co. (Virgil C. Summer Nuclear Station, 

Unit 1), ALAB-710, 17 NRC 25, 28 (1983). See also Hydro Res., Inc.

(P.O. Box 777, Crownpoint, N.M. 87313), LBP-05-17, 62 NRC 77, 87-88 (2005) 

(applying “law of the case” doctrine to reach same conclusion with regard to 

rulings by different tribunals in different phases of a case, though noting that 

“changed circumstances or public interest factors” may sometimes dictate less 

rigid adherence to a ruling of a higher tribunal in a previous phase of the case). 

Licensing Boards are capable of fairly judging a matter on a full record, even 

where the Commission has expressed tentative views. Nuclear Eng’g Co.

(Sheffield, Illinois Low-Level Radioactive Waste Disposal Site), CLI-80-1, 

11 NRC 1, 4-5 (1980). 

Promulgation of new regulations that occurs after a Commission decision based 

upon the old regulations does not exempt the Board, during a later phase of the 

same case, from following that Commission decision where the new regulations 

do not apply retroactively to the issue at hand. Unless the new regulations apply 

HEARINGS 6 JUNE 2011
retroactively – which generally will not be the case – “law of the case” doctrine 

requires the Board to follow the prior Commission decision. Hydro Res., Inc.

(P.O. Box 777, Crownpoint, N.M. 87313), LBP-05-26, 62 NRC 442, 462 (2005). 

The Commission has inherent supervisory power over the conduct of 

adjudicatory proceedings, including the authority to provide guidance on the 

admissibility of contentions before Licensing Boards. Consol. Edison Co. of N.Y.

(Indian Point Nuclear Generating Unit 2); Power Auth. of N.Y. (Indian Point 

Nuclear Generating Unit 3), CLI-82-15, 16 NRC 27, 34 (1982). See also Long 

Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-91-2, 33 NRC 

61, 74 (1991), reconsid. denied on other grounds, CLI-91-8, 33 NRC 461 (1991); 

Ohio Edison Co. (Perry Nuclear Power Plant, Unit 1); Cleveland Elec. 

Illuminating Co. (Perry Nuclear Power Plant, Unit 1; Davis-Besse Nuclear Power 

Station, Unit 1), CLI-91-15, 34 NRC 269, 271 (1991) (directing the Licensing 

Board to suspend consideration of certain issues), reconsid. denied, CLI-92-6, 35 

NRC 86 (1992); Safety Light Corp. (Bloomsburg Site Decontamination), 

CLI-92-13, 36 NRC 79, 85 (1992); Exelon Generation Co., LLC; Sys. Energy 

Res., Inc. (Early Site Permit for Clinton ESP Site; Early Site Permit for Grand 

Gulf ESP Site), CLI-06-20, 64 NRC 15, 21 (2006), citing Duke Energy Corp.

(Catawba Nuclear Station, Units 1 & 2), CLI-04-21, 60 NRC 21, 27 (2004). 

Pursuant to its inherent supervisory authority, the Commission may issue orders 

expediting Board proceedings and suggesting time frames and schedules. 

Although the Commission expects such guidance to be followed to the maximum 

extent feasible, the Licensing Board may deviate from the proposed schedule 

when circumstances require. Baltimore Gas & Elec. Co. (Calvert Cliffs Nuclear 

Power Plant, Units 1 & 2), CLI-98-15, 48 NRC 45, 52 (1998). 

If a licensee files for bankruptcy, the Commission may step in to secure, to the 

maximum extent possible, assets to be used eventually to remediate a 

contaminated site, including intervening in bankruptcy proceedings and entering 

into settlement. Moab Mill Reclamation Trust (Atlas Mill Site), CLI-00-7, 

51 NRC 216, 224 (2000). 

3.1.2.2 Authority in Construction Permit Proceedings Distinguished from 

Authority in Operating License Proceedings 

A Licensing Board’s powers are not coextensive with that of the Commission, but 

are based solely on delegations expressed or necessarily implied in regulation or in 

other Commission direction. A Licensing Board is not delegated authority to and 

cannot order a hearing in the public interest under 10 C.F.R. § 2.104(a). The notice 

constituting a construction permit Licensing Board does not provide a basis for it to 

order a hearing on whether an operating license should be granted. A construction 

permit Licensing Board’s jurisdiction will usually terminate before an operating 

license application is filed. Thus, it probably never could be delegated authority to 

determine whether a hearing on the operating license application is needed in the 

public interest. Similarly, the general authority of a Licensing Board to condition 

permits or licenses provides no basis for it to initiate other adjudicatory proceedings. 

Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 & 4), 

ALAB-577, 11 NRC 18 (1980), reconsid., ALAB-581, 11 NRC 233 (1980), modified, 

CLI-80-12, 11 NRC 514 (1980). 

JUNE 2011 HEARINGS 7
In operating license proceedings, as distinguished from those involving construction 

permits, the role of NRC adjudicatory boards is quite limited insofar as uncontested 

matters are concerned. Va. Elec. & Power Co. (North Anna Nuclear Power Station, 

Units 1 & 2), ALAB-491, 8 NRC 366, 370-71 (1978). 

A Licensing Board for an operating license proceeding does not have general 

jurisdiction over the already authorized ongoing construction of the plant for which 

an operating license application is pending, and it cannot suspend the previously 

issued construction permit. An intervenor wishing to halt such construction must file 

a petition under 10 C.F.R. § 2.206 with the appropriate Commission official. 

Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-674, 15 NRC 1101, 1103 

(1982). See Philadelphia Elec. Co. (Limerick Generating Station, Units 1 & 2), 

ALAB-785, 20 NRC 848, 870-71 (1984). A member of the public may challenge an 

action taken under 10 C.F.R. § 50.59 (changes to a facility) only by means of a 

petition under 10 C.F.R. § 2.206. Yankee Atomic Elec. Co. (Yankee Nuclear Power 

Station), CLI-94-3, 39 NRC 95, 101 n.7 (1994). 

3.1.2.2.A Scope of Authority in Construction Permit Proceedings 

A Licensing Board is limited in the types of actions it may take in a construction 

permit proceeding. Although it may impose conditions on the granting of a 

construction permit, it may not require the applicant to submit a different 

application. In a review of alternate sites, for example, a Licensing Board is not 

authorized to suggest or select preferable alternate sites or to require the 

applicant to reapply for a construction permit at a specified new site. The Board 

may only accept or reject the site proposed in the application or accept it with 

certain conditions. Given the limited number of appropriate responses to a 

construction permit application, a Licensing Board should deny a construction 

permit on the grounds of availability of preferable alternate sites only when the 

alternate site is obviously superior to the proposed site. Pub. Serv. Co. of N.H.

(Seabrook Station, Units 1 & 2), CLI-77-8, 5 NRC 503 (1977). 

In Houston Lighting & Power Co. (South Texas Project, Units 1 & 2), ALAB-381, 

5 NRC 582, 589-91 (1977), the Appeal Board determined that a second 

Licensing Board, constituted after an initial decision in a construction permit 

proceeding had been issued and the jurisdiction of the original Licensing Board 

had terminated, lacks authority to grant a petition for untimely intervention unless 

specifically delegated this authority by the Commission's regulations or one of the 

five notices or orders discussed in Section 3.1.2.1., supra. The Appeal Board 

reasoned that Commission regulations providing for the automatic termination of 

the jurisdiction of the original Licensing Board revealed a policy for reasonable, 

timely termination of litigation. This policy would be frustrated if the second 

Licensing Board could, merely by its creation, reactivate and “inherit” the expired 

authority of the original Board. Since a Licensing Board has no independent 

authority to initiate adjudicatory proceedings, Id. at 592, and since the requisite 

authority was neither “inherited” nor specifically granted to the second Board, that 

Board lacked authority to grant an untimely petition for intervention. Thus, the 

mere designation of a Licensing Board to entertain a petition does not in itself 

confer the requisite authority to grant the petition. See Philadelphia Elec. Co.

(Peach Bottom Atomic Power Station, Units 2 & 3), ALAB-389, 5 NRC 727 

HEARINGS 8 JUNE 2011
(1977). As a corollary, a Licensing Board cannot order a hearing in the absence 

of a pending construction permit or operating license proceeding, or some other 

proceeding which might arise upon the issuance of one of the five notices or 

orders listed above. South Texas, ALAB-381, 5 NRC at 592; Fla. Power & Light 

Co. (St. Lucie Plant, Units 1 & 2; Turkey Point, Units 3 & 4), LBP-77-23, 

5 NRC 789 (1977). A Licensing Board is vested with the power to dismiss an 

application with prejudice. See 10 C.F.R. § 2.107(a); Philadelphia Elec. Co.

(Fulton Generating Station, Units 1 & 2), ALAB-657, 14 NRC 967, 974 (1981). 

A Licensing Board is required to issue an initial decision in a case involving an 

application for a construction permit even if the proceeding is uncontested. 

U.S. Dept. of Energy, Project Mgmt. Corp., Tenn. Valley Auth. (Clinch River 

Breeder Reactor Plant), ALAB-761, 19 NRC 487, 489 (1984), citing

10 C.F.R. § 2.104(b)(2), (3). 

In the context of the Board’s mandatory hearing responsibilities, the terms 

“consider” and “determine” shall be viewed as essentially synonymous. 

However, the Board’s review of contested matters should be different than its 

review of uncontested matters. Review of contested matters should be much 

more in depth than review of uncontested matters. With regard to uncontested 

portions of hearings, a Licensing Board should inquire whether the NRC Staff 

has performed an adequate review and reached conclusions reasonably 

supported by logic and fact. The Board’s review should not be cursory, but 

should instead probe the Staff’s findings by asking appropriate questions and by 

requiring additional information when needed. The Staff’s technical and factual 

findings are not open to Board reconsideration unless the Board finds the Staff 

review inadequate or its findings lacking. Exelon Generation Co. (Early Site 

Permit for Clinton ESP Site), LBP-06-28, 64 NRC 460, 471 n.19, 473-74 (2006). 

10 C.F.R. §§ 51.105(a)(1)(3) and 2.104(b)(3) outline the three NEPA-related 

matters that Licensing Boards must address. The Commission has stated that 

Boards should treat the regulatory requirements in these sections as applicable 

to the uncontested portion of a hearing. The Commission has stated that the 

Licensing Boards must conduct their own analysis on uncontested, baseline 

NEPA questions, but Boards should not second-guess the NRC Staff’s technical 

or factual findings. There should be no exceptions to this rule, unless a 

Licensing Board finds that the Staff’s review is incomplete or that the Staff’s 

findings are not supported by the record. Clinton ESP Site, LBP-06-28, 

64 NRC at 471-71, 483. 

10 C.F.R. § 2.104(b)(2) sets forth safety issues that are relevant to construction 

permits, but not all of the issues listed are relevant for an ESP proceeding. 

Clinton ESP Site, LBP-06-28, 64 NRC at 472. 

 

3.1.2.2.B Scope of Authority in Operating License Proceedings 

Where the Commission’s Notice of Hearing is general and only refers to the 

application for an operating license, a Licensing Board has jurisdiction to 

consider all matters contained in the application, regardless of whether the 

matters were specifically listed in the Notice of Hearing. Duke Power Co. 

JUNE 2011 HEARINGS 9
(Catawba Nuclear Station, Units 1 & 2), ALAB-825, 22 NRC 785, 791-92 (1985) 

(application for an operating license contained proposal for spent fuel storage). 

A Board can authorize or refuse to authorize the issuance of an operating 

license. It does not, however, have general jurisdiction over the already 

authorized ongoing construction of the plant for which an operating license 

application is pending, and it cannot suspend such a previously issued permit. 

Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), LBP-82-76, 

16 NRC 1029, 1086 (1982), citing Consumers Power Co. (Midland Plant, Units 1 

& 2), ALAB-674, 15 NRC 1101, 1102-03 (1982). 

A Licensing Board is not authorized to order an applicant for an operating license 

to pursue options and alternatives to its application, such as the abandonment of 

an entire unit of a plant. The Board must consider the application as it has been 

presented. Philadelphia Elec. Co. (Limerick Generating Station, Units 1 & 2), 

ALAB-785, 20 NRC 848, 884 (1984). 

A Licensing Board that has been granted jurisdiction to preside over an operating 

license proceeding does not have jurisdiction to consider issues which may be 

raised by potential applications for operating license amendments. 

Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 & 2), 

LBP-87-19, 25 NRC 950, 951 (1987), reconsid. denied, LBP-87-22, 26 NRC 41 

(1987), both vacated as moot, ALAB-874, 26 NRC 156 (1987). 

A Licensing Board for an operating license proceeding is limited to resolving 

matters that are raised therein as legitimate contentions by the parties or by the 

Board sua sponte. 10 C.F.R. § 2.340 (formerly § 2.760a); Midland, ALAB-674, 

15 NRC at 1102-03, citing Consol. Edison Co. of N.Y. (Indian Point Nuclear 

Generating Units 1, 2, & 3), ALAB-319, 3 NRC 188, 190 (1976); Long Island 

Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-115, 16 NRC 

1923, 1933 (1982), citing 10 C.F.R. § 2.340 (formerly § 2.760a); Union Elec. Co.

(Callaway Plant, Unit 1), ALAB-750, 18 NRC 1205, 1216 (1983); Carolina Power 

& Light Co. (Shearon Harris Nuclear Power Plant), ALAB-852, 24 NRC 532, 545 

(1986); Dairyland Power Coop. (LaCrosse Boiling Water Reactor), LBP-88-15, 27 

NRC 576, 579 (1988). Specifically, the Board’s jurisdiction is limited to a 

determination of findings of fact and conclusions of law on matters put into 

controversy by the parties to the proceeding or found by the Board to involve a 

serious safety, environmental or common defense and security question. Ariz. 

Pub. Serv. Co. (Palo Verde Nuclear Generating Station, Units 1, 2, & 3), LBP-82-

117A, 16 NRC 1964, 1969-70 (1982); Philadelphia Elec. Co. (Limerick 

Generating Station, Units 1 & 2), ALAB-830, 23 NRC 59, 60 & n.1 (1986), 

vacating LBP-86-3, 23 NRC 69 (1986). 

There is no automatic right to adjudicatory resolution of environmental or safety 

questions associated with an operating license application. See Cincinnati Gas 

& Elec. Co. (William H. Zimmer Nuclear Power Station), ALAB-305, 3 NRC 8, 9 

(1976). The Commission’s regulations limit operating license proceedings to 

“matters in controversy among the parties” or matters raised on a Licensing 

Board’s own initiative sua sponte. 10 C.F.R. §§ 2.104(c), 2.340 (formerly 

§ 2.760a); Houston Lighting & Power Co. (South Texas Project, Units 1 & 2), 

ALAB-799, 21 NRC 360, 382 (1985). 

HEARINGS 10 JUNE 2011
A hearing is not mandatory on an operating license, but where a Board is 

convened it may look at all serious matters it deems merit further exploration. 

Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), 

ALAB-580, 11 NRC 227, 229-31 (1980). Where a Licensing Board has 

jurisdiction to consider an issue, a party to a proceeding before that Board must 

first seek relief from the Board; if the Licensing Board is clearly without 

jurisdiction, there is no need to present the matter to it for decision. Pac. Gas & 

Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-81-6, 

13 NRC 443, 446 (1981), citing Carolina Power & Light Co. (Shearon Harris 

Nuclear Power Plant, Units 1, 2, 3 & 4), CLI-79-5, 9 NRC 607 (1979). 

An operating license proceeding is not intended to provide a forum for the 

reconsideration of matters originally within the scope of the construction permit 

proceeding. Philadelphia Elec. Co. (Limerick Generating Station, Units 1 & 2), 

ALAB-804, 21 NRC 587, 591 (1985). 

In an operating license proceeding, the Commission’s regulations limit an 

adjudicatory board’s finding to the issues put into contest by the parties. See

10 C.F.R. § 2.340 (formerly § 2.760a). A Board is not required to make – and, 

under the regulations cannot properly make – the ultimate finding comparable to 

that required in a construction permit proceeding. Pac. Gas & Elec. Co. (Diablo 

Canyon Nuclear Power Plant, Units 1 & 2), ALAB-728, 17 NRC 777, 807 (1983), 

rev. denied, CLI-83-32, 18 NRC 1309 (1983). 

The Licensing Board may assert jurisdiction over Part 70 material licensing 

issues raised in conjunction with an ongoing Part 50 licensing proceeding where 

the Part 70 materials license is integral to the project undergoing licensing 

consideration. Philadelphia Elec. Co. (Limerick Generating Station, Units 1 & 2), 

LBP-84-16, 19 NRC 857, 862-65 (1984) (citing Pac. Gas & Elec. Co. (Diablo 

Canyon Nuclear Power Plant, Units 1 & 2), CLI-76-1, 3 NRC 73, 74 (1976)), aff’d, 

ALAB-765, 19 NRC 645, 650-51 (1984). 

In a previously uncontested operating license proceeding, a Licensing Board has 

the jurisdiction to entertain a late-filed petition to intervene and to decide the 

issues raised by it until the Commission exercises its authority to license fullpower operation. The Board’s jurisdiction is not terminated until the time the 

Commission issues a final decision or the time expires for Commission 

certification of record. Miss. Power & Light Co. (Grand Gulf Nuclear Station, 

Units 1 & 2), LBP-82-92, 16 NRC 1376, 1380-81 (1982). 

In operating licensing proceedings as to radiological safety matters, the Board is 

to decide those issues put in controversy by the parties. In addition, the Board 

must require evidence and resolution of any significant safety matter of which it 

becomes aware regardless of whether the parties choose to put the matter in 

controversy. See also Vermont Yankee Nuclear Power Corp. (Vermont Yankee 

Nuclear Power Station), ALAB-138, 6 AEC 520, 524-25 (1973); Vermont Yankee 

Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-124, 

6 AEC 358, 362 (1973). 

A Licensing Board authorized the issuance of a full-power operating license for 

the Seabrook facility even though several emergency planning issues remanded 

JUNE 2011 HEARINGS 11
by the Appeal Board and a number of intervenors’ motions for the admission of 

new contentions were still pending before the Licensing Board. The Board 

believed that the issuance of a full-power operating license prior to the resolution 

of these open matters was appropriate where none of the open matters involved 

significant safety or regulatory matters which would undermine the Board’s 

ultimate conclusion that there is reasonable assurance that adequate protective 

measures can and will be taken in the event of a radiological emergency at the 

facility. Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), LBP-89-33, 

30 NRC 656, 657-58 (1989), appeal dismissed as moot, ALAB-947, 33 NRC 299, 

378 & n.331 (1991), citing Mass. v. NRC, 924 F.2d 311, 330-32 (D.C. Cir. 1991). 

The Commission conducted an immediate effectiveness review pursuant to 

10 C.F.R. § 2.340 (formerly § 2.764), and determined that the Licensing Board’s 

authorization of the issuance of a full-power operating license should be allowed 

to take effect. The Commission denied the intervenors’ motion for relief in the 

nature of mandamus on the ground that there was no clear, non-discretionary 

duty on the part of the Licensing Board to delay full-power authorization pending 

the completion of remand proceedings or resolution of all pending matters. Pub. 

Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), CLI-90-3, 31 NRC 219, 229-31 

(1990). 

3.1.2.3 Scope of Authority in Uncontested Proceedings (“Mandatory Hearings”) 

A balance must be struck between the leeway enjoyed by the Board to perform its 

“truly independent” review, and burdens on the NRC Staff. A “mandatory hearing” 

Board must narrow its inquiry to those topics or sections in Staff documents that it 

deems most important and should concentrate on portions of the documents that do 

not on their face adequately explain the logic, underlying facts, and applicable 

regulations and guidance. “It serves no purpose for the Staff to produce volumes of 

documents and information supporting facts and conclusions that are of small 

importance and are beyond dispute. It likewise serves no purpose for the Staff to 

produce copies of every document used in its review when the Board cannot 

possibly read through every one, let alone scrutinize them.” Exelon Generation Co., 

LLC; Sys. Energy Res., Inc. (Early Site Permit for Clinton ESP Site; Early Site 

Permit for Grand Gulf ESP Site), CLI-06-20, 64 NRC 15, 21-22 (2006); USEC, Inc.

(Am. Centrifuge Plant), LBP-07-6, 65 NRC 429, 436-37 (2007) (stating and applying 

legal standards governing uncontested proceedings). Boards in mandatory 

hearings should be able to look to the Staff for assistance in understanding the 

basis for each major finding in the safety evaluation report (SER) and environmental 

impact statement (EIS) and in identifying appropriate areas of inquiry. Clinton & 

Grand Gulf ESP, CLI-06-20, 64 NRC at 21. See also Sys. Energy Res., Inc. (Early 

Site Permit for Grand Gulf ESP Site), LBP-07-1, 65 NRC 27, 35-36 (2007). 

A mandatory hearing Board request that the Staff produce a comprehensive, freshly 

prepared, narrative report covering the entire SER and final environmental impact 

statement (FEIS) would require an unnecessary duplication of effort. Instead, 

mandatory hearing Boards should review the Staff documents (together with 

additional materials requested), and then tailor requests for additional information to 

those areas for which the Boards need additional information in order to understand 

the Staff’s review documents. Clinton & Grand Gulf ESP, CLI-06-20, 64 NRC at 23 

(emphasis in original). However, mandatory hearing Boards, if they choose, may 

HEARINGS 12 JUNE 2011
require the Staff to provide indexes as a device to simplify the Board’s review of the 

Staff’s documents. Id. 

It is reasonable for a mandatory hearing Board, in order to help focus its review, to 

request certain information concerning the Staff’s use of regulatory guidance – in 

particular, if a regulatory guide was used and not referred to in the SER and EIS, or 

if a potentially applicable guide was not used. Clinton & Grand Gulf ESP, 

CLI-06-20, 64 NRC at 23. 

Mandatory hearing Boards may probe the Staff for additional testimony or record 

material when necessary to ascertain whether the Staff had reasonable bases for 

the Staff’s final determinations. However, an uncontested, mandatory hearing need 

not, and should not, commence with a requirement that the Staff identify, explain, 

and resolve its preliminary differences of opinion (i.e., by producing the Staff’s 

predecisional documents). Exceptional circumstances should not be presumed. 

Clinton & Grand Gulf ESP, CLI-06-20, 64 NRC at 25. Because the Board’s role in 

an uncontested proceeding is somewhat analogous to the function of an appellate 

court, applying the “substantial evidence” test, the Board need not demand all 

possible views and facts be put into the record or presume preliminary views to 

raise matters of controversy about the bases for the final Staff determinations. 

Rather, the “boards should decide simply whether the safety and environmental 

record is ‘sufficient.’” Id. See also Dominion Nuclear North Anna, LLC (Early Site 

Permit for North Anna ESP Site) LBP-07-09, 65 NRC 539, 558 (2007) (Board review 

is not to be a rubber stamp, but instead Boards must carefully probe NRC Staff 

findings by asking appropriate questions and by requiring supplemental 

information). 

The Advisory Committee on Reactor Safeguards (ACRS) is an independent federal 

advisory committee that is not under the Staff’s control. While a mandatory hearing 

Board may ask the Staff to produce relevant ACRS documents that it has reviewed, 

the Board should not ask the Staff to obtain additional ACRS documents that it has 

not reviewed, as it is not clear that they are germane given that the Board’s review 

is intended to ensure that the Staff’s conclusions have “reasonable support in logic 

and fact.” Clinton & Grand Gulf ESP, CLI-06-20, 64 NRC at 25-26.

3.1.2.4 Scope of Authority in License Amendment Proceedings 

A Licensing Board’s power in a license amendment proceeding is limited by the 

scope of the proceeding. Vermont Yankee Nuclear Power Corp. (Vermont Yankee 

Nuclear Power Station), LBP-88-19, 28 NRC 145, 152-53 (1988) (a Licensing Board 

only has jurisdiction over those matters which are within the scope of the 

amendment application). The Board may admit a party’s issues for hearing only 

insofar as those issues are within the scope of matters outlined in the Commission’s 

Notice of Hearing on the licensing action. Wis. Elec. Power Co. (Point Beach 

Nuclear Plant, Units 1 &2), ALAB-739, 18 NRC 335, 339 (1983), citing Portland 

Gen. Elec. Co. (Trojan Nuclear Plant), ALAB-534, 9 NRC 287, 289 n.6 (1979) and 

Pub. Serv. Co. of Ind. (Marble Hill Nuclear Generating Station, Units 1 & 2), 

ALAB-316, 3 NRC 167, 170-71 (1976). 

Thus, in considering an amendment to transfer part ownership of a facility, a 

Licensing Board held that questions concerning the legality of transferring some 

JUNE 2011 HEARINGS 13
ownership interest in advance of Commission action on the amendment was outside 

its jurisdiction and should be pursued under the provisions of 10 C.F.R. Part 2, 

Subpart B (dealing with enforcement) instead. Detroit Edison Co. (Enrico Fermi 

Atomic Power Plant, Unit 2), LBP-78-11, 7 NRC 381, 386 (1978). 

The failure of a licensee to fulfill responsibilities associated with a license 

amendment issued by the Staff gives rise to an enforcement issue that does not 

come within the purview of a license amendment adjudication. Rather, in such 

circumstances, the available remedy is to file a petition with the appropriate division 

director, calling attention to the asserted failure of the licensee to meet its license 

obligations and requesting appropriate remedial action. 10 C.F.R. § 2.206; 

U.S. Army (Jefferson Proving Ground Site), LBP-07-7, 65 NRC 507 (2007). A claim 

that a license amendment applicant’s current license should be revoked due to 

violations of that license is an enforcement matter that is outside the scope of the 

license amendment proceeding. Safety Light Corp. (Bloomsburg, Pennsylvania 

Site), LBP-04-25, 60 NRC 516, 529-30 (2004). 

3.1.2.5 Scope of Authority to Rule on Petitions and Motions 

Merely by having been constituted, a Licensing Board has authority to entertain 

petitions. See 10 C.F.R. § 2.309(a) (formerly § 2.714(a)). To grant a petition, 

however, the Licensing Board must have been given the requisite authority 

specifically, either under Commission regulations or through one of the five notices 

or orders issued in relation to the proceeding in question. 

A 10 C.F.R. Part 70 materials license is an “order” which, under 

10 C.F.R. § 2.318(b) (formerly § 2.717(b)), may be “modified” by a Licensing Board 

delegated authority to consider a 10 C.F.R. Part 50 operating license. Cincinnati 

Gas & Elec. Co. (William H. Zimmer Nuclear Station), LBP-79-24, 10 NRC 226, 228 

(1979). 

A Licensing Board has jurisdiction to review an order of the Director of Nuclear 

Reactor Regulation which relates to a matter which could be admitted as a late-filed 

contention in a pending proceeding. The order does not have to be related to a 

currently admitted contention in the proceeding. Vermont Yankee Nuclear Power 

Corp. (Vermont Yankee Nuclear Power Station), LBP-88-19, 28 NRC 145, 150-52 

(1988), citing 10 C.F.R. §2.318(b) (formerly § 2.717(b)). 

Licensing Boards lack authority to consider a motion for an Order to Show Cause 

pursuant to 10 C.F.R. §§ 2.202 and 2.206. Puerto Rico Elec. Power Auth. (North 

Coast Nuclear Plant, Unit 1), LBP-80-15, 11 NRC 765, 767 (1980), rev’d on other 

grounds, ALAB-605, 12 NRC 153 (1980). 

Licensing Boards also lack authority to consider claims for damages. North Coast, 

LBP-80-15, 11 NRC at 767. 

In NRC proceedings in which a hearing is not mandatory but depends on the filing of 

a successful intervention petition, an “intervention” Licensing Board has authority 

only to pass upon intervention petitions. If a petition is granted, thus giving rise to a 

full hearing, a second Licensing Board, which may or may not be composed of the 

same members as the first Board, is established to conduct the hearing. Wis. Elec. 

HEARINGS 14 JUNE 2011
Power Co. (Point Beach Nuclear Plant, Units 1 & 2), LBP-78-23, 8 NRC 71, 73 

(1978); Commonwealth Edison Co. (Byron Station, Units 1 & 2), LBP-81-30-A, 

14 NRC 364, 366 (1981). Thus, an “intervention” Licensing Board established 

solely for the purpose of passing on petitions to intervene does not have the 

additional authority to proceed beyond that assignment or to entertain filings going 

to the merits of matters in controversy between the petitioners and the applicant. 

Pac. Gas & Elec. Co. (Stanislaus Nuclear Project, Unit 1), ALAB-400, 5 NRC 1175, 

1177-78 (1977); Ariz. Pub. Serv. Co. (Palo Verde Nuclear Generating Station, 

Units 1, 2, & 3), LBP-91-18, 33 NRC 394, 395-96 (1991). An “intervention” board 

cannot, for example, rule on motions for summary disposition. Stanislaus, 

ALAB-400, 5 NRC at 1177-78. 

A Licensing Board may entertain a request for declaratory relief. Kan. Gas & Elec. 

Co. (Wolf Creek Nuclear Generating Station), ALAB-321, 3 NRC 293, 298 (1976), 

aff’d, CLI-77-1, 5 NRC 1 (1977). This power stems from the fact that the 

Commission itself may grant declaratory relief under the APA, 5 U.S.C. § 554(e), 

and delegate that power to presiding officers. 5 U.S.C. § 556(c)(9); Wolf Creek, 

CLI-77-1, 5 NRC 1. In this vein, Licensing Boards have the authority to issue 

declaratory orders to terminate a controversy or remove uncertainty. Wash. Pub. 

Power Supply Sys. (WPPSS Nuclear Projects 3 & 5), LBP-77-15, 5 NRC 643 

(1977). A Licensing Board has utilized the following test to determine whether a 

genuine controversy exists sufficient to support the issuance of a declaratory order: 

(1) the challenged action was in its duration too short to be fully litigated prior to its 

cessation or expiration; and (2) there is a reasonable expectation that the same 

complaining party would be subject to the same action again. Advanced Med. Sys.

(One Factory Row, Geneva, Ohio 44041), LBP-89-11, 29 NRC 306, 314-16 (1989), 

citing SEC v. Sloan, 436 U.S. 103, 109 (1978) (quoting Weinstein v. Bradford, 423 

U.S. 147, 149 (1975) (per curiam)). 

A Licensing Board established for an operating license proceeding has authority to 

consider materials license questions where matters regarding a materials license 

bear on issues in the operating license application. Zimmer, LBP-79-24, 

10 NRC at 228. 

If a Licensing Board determines that a participation agreement prohibiting the flow of 

electricity in interstate commerce is inconsistent with the antitrust laws, the Board 

may impose license conditions despite a federal court injunction prohibiting 

participant from violating the agreement. Houston Lighting & Power Co. (South 

Texas Project, Units 1 & 2), LBP-79-27, 10 NRC 563, 577 (1979). 

The power to grant an exemption from the regulations has not been delegated to 

Licensing Boards. Such Boards, therefore, lack the authority to grant exemptions. 

Southern Cal. Edison Co. (San Onofre Nuclear Generating Station, Units 2 & 3), 

LBP-77-35, 5 NRC 1290, 1291 (1977). 

A Licensing Board has authority to condition termination on the licensee’s payment 

of fees and costs to the intervenors, but the prospect of a second proceeding, 

standing alone, is not a legally cognizable harm that would warrant payment of fees 

and costs. Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), LBP-99-27, 

50 NRC 45, 51 (1999). 

JUNE 2011 HEARINGS 15
Where the Staff has acted to modify or withdraw a previously issued order during 

the pendency of an adjudicatory proceeding regarding that order or to enter into an 

agreement to take such actions to settle a proceeding, its actions are subject to 

review by the presiding officer. Oncology Servs. Corp., LBP-94-2, 39 NRC 11, 

11 fn.12 (1994). 

A presiding officer has jurisdiction to consider a timely motion for reconsideration 

filed after the issuance of an initial decision but before the timely filing of appeals. 

Curators of the Univ. of Mo., CLI-95-1, 41 NRC 71, 93-95 (1995). But, unless a 

Licensing Board takes action on a motion seeking reconsideration or clarification of 

a decision disposing of all matters before it, the Board does not retain jurisdiction 

normally lost, and the motion is effectively denied. Nuclear Fuel Servs. Inc. 

(Western New York Nuclear Service Center), LBP-83-15, 17 NRC 476, 477 (1983). 

A reconstituted Licensing Board is legally competent to rule on all matters within its 

jurisdiction, including a party’s objections to any orders issued by the original 

Licensing Board prior to the reconstitution of the Board. Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), LBP-86-38A, 24 NRC 819, 821 (1986). 

A Licensing Board does not have the jurisdiction to refer NRC examination cheaters 

for criminal prosecution, nor does it have authority over formulation of generic Staff 

procedures for administering NRC examinations. Metro. Edison Co. (Three Mile 

Island Nuclear Station, Unit 1), LBP-82-56, 16 NRC 281, 302, 372 (1982). 

The ASLB may not place itself in the position of deciding whether the NRC Staff 

should be permitted to refer information obtained through discovery to NRC 

investigatory staff offices. Sequoyah Fuels Corp. (Gore, Oklahoma Site), CLI-95-16, 

42 NRC 221, 225 (1995).

3.1.2.6 Scope of Authority to Reopen the Record 

If a Licensing Board believes that circumstances warrant reopening the record for 

receipt of additional evidence, it has discretion to take that course of action. Where 

a Board was faced with an insufficient record for summary disposition, and knew of 

a document which had not been introduced into evidence and would support 

summary disposition, it was not improper to request submission of the document in 

support of a motion for summary disposition. Cleveland Elec. Illuminating Co.

(Perry Nuclear Power Plant, Units 1 & 2), ALAB-443, 6 NRC 741, 752 (1977). 

A Licensing Board is empowered to reopen a proceeding at least until the issuance 

of its initial decision, but no later than either the filing of an appeal or the expiration 

of the period during which the Commission can exercise its right to review the 

record. See 10 C.F.R. §§ 2.318(a), 2.713(a), 2.319(m) and 2.341 (formerly 

§§ 2.717(a), 2.760(a), 2.718(j), and 2.786); Metro. Edison Co. (Three Mile Island 

Nuclear Station, Unit 1), ALAB-699, 16 NRC 1324, 1326, 1327 (1982); Cincinnati 

Gas & Elec. Co. (William H. Zimmer Nuclear Power Station, Unit 1), LBP-83-12, 

17 NRC 466, 467 (1983); Philadelphia Elec. Co. (Limerick Generating Station, 

Units 1 & 2), LBP-83-25, 17 NRC 681, 683 (1983); Cincinnati Gas & Elec. Co.

(William H. Zimmer Nuclear Power Station, Unit 1), LBP-83-58, 18 NRC 640, 646 

(1983), citing Three Mile Island, ALAB-699, 16 NRC at 1324. Until an appeal from 

an initial decision has been filed, jurisdiction to rule on a motion to reopen lies with 

HEARINGS 16 JUNE 2011
the Licensing Board. Philadelphia Elec. Co. (Limerick Generating Station, Units 1 

& 2), ALAB-726, 17 NRC 755, 757 (1983); Zimmer, LBP-83-58, 18 NRC at 646. 

Where no appeal from an initial decision has been filed within the time allowed and 

the period for sua sponte review has not expired, jurisdiction to rule on a motion to 

reopen lies with the Licensing Board. Limerick, LBP-83-25, 17 NRC at 757. 

The Licensing Board lacks the jurisdiction to consider a motion to reopen the record 

after a petition to review a final order has been filed. Northeast Nuclear Energy Co.

(Millstone Nuclear Power Station, Unit 3), CLI-00-25, 52 NRC 355, 357 n.3 (2000), 

citing Limerick, ALAB-726, 17 NRC 755; cf. Curators of the Univ. of Mo. (TRUMP-S 

Project), CLI-95-1, 41 NRC 71, 93-94 (1995). 

An adjudicatory Board does not have jurisdiction to reopen a record with respect to 

an issue when finality has attached to the resolution of that issue. This conclusion is 

not altered by the fact that the Board has another discrete issue pending before it. 

Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), ALAB-513, 8 NRC 694, 695 

(1978). 

Until a license has actually been issued, the Commission (as opposed to the 

Licensing Board) retains jurisdiction to reopen a closed case. Dominion Nuclear 

Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-06-4, 63 NRC 32, 

35-36 (2006), citing Tex. Utils. Elec. Co. (Comanche Peak Steam Electric Station, 

Unit 2), CLI-93-1, 37 NRC 1 (1993) and Tex. Utils. Elec. Co. (Comanche Peak 

Steam Electric Station, Units 1 & 2), CLI-92-1, 35 NRC 1 (1992).

3.1.2.7 Scope of Authority to Rule on Contentions 

The Commission’s delegation of authority to a Licensing Board to conduct any 

necessary proceedings pursuant to 10 C.F.R. Part 2, Subpart C includes the 

authority to permit an applicant for license amendment to file contentions in a 

hearing requested by other parties even though the applicant may have waived its 

own right to a hearing. There are no specific regulations which govern the filing of 

contentions by an applicant. However, since an applicant is a party to a proceeding, 

it should have the same rights as other parties to the proceeding, which include the 

right to submit contentions, see 10 C.F.R. § 2.309 (formerly § 2.714), and the right 

to file late contentions under certain conditions, see 10 C.F.R. § 2.309(a) (formerly 

§ 2.714(a)). Kerr-McGee Chem. Corp. (West Chicago Rare Earths Facility), 

LBP-84-42, 20 NRC 1296, 1305-07 (1984). 

Where a Licensing Board has retained jurisdiction following issuance of initial 

decision to conduct further proceedings, it has jurisdiction to consider the 

admissibility of new contentions which are not related to any matter previously 

litigated. Cincinnati Gas & Elec. Co. (William H. Zimmer Nuclear Power Station, 

Unit 1), LBP-83-12, 17 NRC 466, 467 (1983). 

Pursuant to § 2.309(a)-(f) (formerly § 2.714(a)), a Licensing Board is not authorized 

to admit conditionally, for any reason, a contention that falls short of meeting 

specificity requirements. Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), 

ALAB-687, 16 NRC 460, 467 (1982), vacated in part on other grounds, CLI-83-19, 

17 NRC 1041 (1983). 

JUNE 2011 HEARINGS 17
Failure to meet the standards for admitting late-filed contentions does not, under 

NRC rules, leave the Board free to impose an array of sanctions of varying severity. 

On the contrary, under 10 C.F.R. § 2.309(c) (formerly § 2.714(a)(1)), the rules 

specify that impermissibly late-filed contentions “will not be entertained.” Private 

Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-01-1, 

53 NRC 1, 7 (2001). 

Jurisdiction to rule on the admission of contentions, which were filed prior to final 

agency action and which have never been litigated, rests with the Licensing Board. 

Cincinnati Gas & Elec. Co. (William H. Zimmer Nuclear Power Station, Unit 1), 

LBP-83-58, 18 NRC 640, 646 (1983). 

An intervenor’s failure to particularize certain contentions or even, arguendo, to 

pursue settlement negotiations, when taken by itself, does not warrant the out-ofhand dismissal of intervenors’ proposed contentions. There is a sharp contrast 

between an intervenor’s refusal to provide information requested by another party 

on discovery, even after a Licensing Board order compelling its disclosure, and the 

asserted failure of intervenors to take advantage of additional opportunity to narrow 

and particularize their contentions. Long Island Lighting Co. (Shoreham Nuclear 

Power Station, Unit 1), LBP-82-75, 16 NRC 986, 990 (1982). 

3.1.2.8 Authority of Licensing Board to Raise Sua Sponte Issues 

A Licensing Board has the power to raise sua sponte any significant environmental 

or safety issue in operating license hearings, although this power should be used 

sparingly in operating license cases. 10 C.F.R. § 2.340(a) (formerly § 2.760a); 

Consol. Edison Co. of N.Y. (Indian Point Nuclear Nuclear Generating Units 1, 2& 3), 

ALAB-319, 3 NRC 188, 190 (1976); Houston Lighting & Power Co. (South Texas 

Project, Units 1 & 2), LBP-85-8, 21 NRC 516, 519 (1985). The Board’s independent 

responsibilities under NEPA may require it to raise environmental issues not raised 

by a party. Tenn. Valley Auth. (Hartsville Nuclear Plant, Units 1A, 2A, 1B & 2B), 

ALAB-380, 5 NRC 572 (1977). 

The Board has the prerogative, under the regulations, to consider raising serious 

issues sua sponte and the responsibility of reviewing materials filed before it to 

determine whether the parties have brought such an issue before. This is 

particularly necessary when an issue is excluded from the proceeding because it 

has not been properly raised rather than because it has been rejected on its merits. 

Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), 

LBP-82-79, 16 NRC 1116, 1119 (1982). 

Pursuant to 10 C.F.R. § 2.340(a) (formerly § 2.760a) and a Commission 

memorandum, a Licensing Board may raise a safety issue sua sponte when 

sufficient evidence of a serious safety matter has been presented that would prompt 

reasonable minds to inquire further. Very specific findings are not required since 

they could cause prejudgment problems. The Board need only give its reasons for 

raising the problem. Southern Cal. Edison Co. (San Onofre Nuclear Generating 

Station, Units 2 & 3), LBP-81-36, 14 NRC 691, 697 (1981), citing Memorandum from 

the Secretary of the Commission to the Chairman of the Licensing Board Panel 

(June 30, 1981) (concerning sua sponte issues). 

HEARINGS 18 JUNE 2011
Having found that adjudication of contentions was not “required in the public 

interest” during its review of a proposed settlement agreement, the Board concluded 

that settlement of those same contentions did not raise serious safety, 

environmental, or common defense and security concerns warranting sua sponte

review under 10 C.F.R. § 2.340(a). Entergy Nuclear Vermont Yankee, LLC

(Vermont Yankee Nuclear Power Station), LBP-06-18, 63 NRC 830, 843-44 (2006). 

The regulations limiting the Board’s authority to raise sua sponte issues restrict its 

right to consider safety, environmental or defense matters not raised by parties but 

do not restrict its responsibility to oversee the fairness and efficiency of proceedings 

and to raise important procedural questions on its own motion. Wis. Elec. Power 

Co. (Point Beach Nuclear Plant, Units 1 & 2), LBP-82-24A, 15 NRC 661, 664 

(1982). 

Because Boards may raise important safety and environmental issues sua sponte, 

they should review even untimely contentions to determine that they do not raise 

important issues that should be considered sua sponte. Consumers Power Co. (Big 

Rock Point Plant), LBP-82-19B, 15 NRC 627, 631-32 (1982). 

A Licensing Board’s inherent power to shape the course of a proceeding should not 

be confused with its limited authority under 10 C.F.R. § 2.340(a) (formerly § 2.760a) 

to shape the issues of the proceeding. The latter is not a substitute for or a means 

to accomplish the former. Sua sponte authority is not a case management tool. 

Accordingly, the apparent need to expedite a procedure or monitor the Staff’s 

progress in identifying or evaluating potential safety or environmental issues are not 

factors that authorize a Board to exercise its sua sponte authority. Tex. Util. 

Generating Co. (Comanche Peak Steam Electric Station, Units 1 & 2), CLI-81-36, 

14 NRC 1111, 1113 (1981). 

The incompleteness of Staff review of an issue is not in itself sufficient to satisfy the 

standard for sua sponte review. South Texas, LBP-85-8, 21 NRC at 519, citing

Comanche Peak, CLI-81-36, 14 NRC at 1114. However, a Board may take into 

account the pendency and likely efficacy of NRC Staff non-adjudicatory review in 

determining whether or not to invoke its sua sponte review authority. South Texas, 

LBP-85-8, 21 NRC at 519-23, citing Cincinnati Gas & Elec. Co. (William H. Zimmer 

Nuclear Power Station, Unit 1), CLI-82-20, 16 NRC 109 (1982), reconsid. denied, 

CLI-83-4, 17 NRC 75 (1983), and Cleveland Elec. Illuminating Co. (Perry Nuclear 

Power Plant, Units 1 & 2), LBP-83-75, 18 NRC 1254 (1983). 

A Board decision to review a proposal concerning the withholding of a portion of the 

record from the public is an appropriate exercise of Board authority and is not 

subject to the sua sponte limitation on Board authority. Point Beach, LBP-82-5A, 

15 NRC 216; Wis. Elec. Power Co. (Point Beach Nuclear Plant, Units 1 & 2), 

LBP-82-12, 15 NRC 354 (1982). Because exercise of this authority does not give 

rise to a sua sponte issue, notification of the Commission is not required. 

The Board’s authority to consider substantive issues is limited by the sua sponte

rule, but the same limitation does not apply to its consideration of procedural 

matters, such as confidentiality issues arising under 10 C.F.R. § 2.390 (formerly 

§ 2.790). While it would not always be appropriate for the Board to take up 

proprietary matters on its own, where the Board finds the Staff’s review 

JUNE 2011 HEARINGS 19
unsatisfactory, sua sponte review of those matters may be necessary. Wis. Elec. 

Power Co. (Point Beach Nuclear Plant, Units 1 & 2), LBP-82-6, 15 NRC 281, 288 

(1982). 

A Board may raise a procedural question, such as whether a portion of its record 

should be treated as proprietary or released to the public, regardless of whether the 

full scope of the question has been raised by a party. Point Beach, LBP-82-6, 

15 NRC at 288. 

Information that will help the Board decide whether to raise a sua sponte issue 

should be made available to the Board. Cleveland Elec. Illuminating Co. (Perry 

Nuclear Power Plant, Units 1 & 2), LBP-82-9, 15 NRC 339, 340 (1982). 

Board inquiries related to admitted contentions do not create sua sponte matters 

requiring notification of the Commission. That the Board gives advance notification 

to a party that related questions may be asked does not convert those questions 

into sua sponte issues requiring notification of the Commission. Nor is notification 

required when a Board has already completed action on a procedural matter and no 

further obligation has been imposed on a party. The sua sponte rule is intended to 

preclude major, substantive inquiries not related to subject matter already before the 

Board, not minor procedural matters. Point Beach, LBP-82-12, 15 NRC at 356. 

NRC regulations give an adjudicatory board the discretion to raise on its own motion 

any serious safety or environmental matter. See 10 C.F.R. § 2.340(a) (formerly 

§ 2.760a). This discretionary authority necessarily places on the Board the burden 

of scrutinizing the record of an operating license proceeding to satisfy itself that no 

such matters exist. Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, 

Units 1 & 2), ALAB-728, 17 NRC 777, 807 (1983), rev. denied, CLI-83-32, 

18 NRC 1309 (1983). See Northern States Power Co. (Monticello Nuclear 

Generating Plant, Unit 1), ALAB-611, 12 NRC 301, 309 (1980). An adjudicatory 

Board’s decision to exercise its sua sponte authority must be based on evidence 

contained in the record. A Board may not engage in discovery in an attempt to 

obtain information upon which to establish the existence of a serious safety or 

environmental issue. La. Power & Light Co. (Waterford Steam Electric Station, 

Unit 3), CLI-86-1, 23 NRC 1, 7 (1986). 

A Licensing Board may, under 10 C.F.R. § 2.340(a) (formerly § 2.760a), raise and 

decide, sua sponte, a serious safety, environmental, or common defense and 

security matter, should it determine such a serious issue exists. The limitations 

imposed by regulation on a Board’s review of a matter not in contest (and therefore 

not subject to the more intense scrutiny afforded by the adversarial process) do not 

override a Board’s authority to invoke 10 C.F.R. § 2.340(a) (formerly § 2.760a). The 

Commission may, however, on a case-by-case basis relieve the Board of any 

obligation to pursue uncontested issues. La. Power & Light Co. (Waterford Steam 

Electric Station, Unit 3), ALAB-732, 17 NRC 1076, 1112 & n.58 (1983), citing Va. 

Elec. & Power Co. (North Anna Nuclear Power Station, Units 1 & 2), ALAB-491, 

8 NRC 245, 248 n.7 (1978). 

A Licensing Board has ruled that exercise of its sua sponte authority to examine 

certain serious issues is not dependent on either (1) the presence of any party to 

raise or pursue those issues in the proceeding, or (2) the particular stage of the 

HEARINGS 20 JUNE 2011
proceeding. Thus, the Licensing Board determined that it could properly retain 

jurisdiction over an intervenor’s admissible contentions even though the intervenor 

had been dismissed from the proceeding prior to the issuance of a Notice of 

Hearing. Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 

4), LBP-90-32, 32 NRC 181, 185-86 (1990), overruled, CLI-91-13, 34 NRC 185, 

188-89 (1991). The Commission made clear that a Licensing Board does not have 

the authority to raise a sua sponte issue in an operating license or operating license 

amendment proceeding where all parties in the proceeding have withdrawn or been 

dismissed. If the Board believes that serious safety issues remain to be addressed, 

it should refer those issues to the NRC Staff for review. Turkey Point, CLI-91-13, 

34 NRC at 188-89. 

The NRC’s regulations do not contain provisions conferring jurisdiction on Licensing 

Boards to impose fines sua sponte. The powers granted to a Licensing Board by 

10 C.F.R. § 2.319 (formerly § 2.718) to conduct a fair and impartial hearing 

according to law, to take appropriate action to avoid delay, and to maintain order, do 

not include the power to impose a civil penalty. 10 C.F.R. § 2.205(a) confers the 

authority to institute a civil penalty proceeding only upon the NRC’s Director of 

Nuclear Reactor Regulation, the Director of Nuclear Material Safety and 

Safeguards, and the Director of the Office of Inspection and Enforcement. A 

Licensing Board becomes involved in a civil penalty proceeding only if the person 

charged with a violation requests a hearing. Metro. Edison Co. (Three Mile Island 

Nuclear Station, Unit 1), CLI-82-31, 16 NRC 1236, 1238 (1982); see

10 C.F.R. § 2.205(f). 

It is appropriate for the Board to address issues concerning the confidentiality of a 

portion of its record, regardless of whether the issue was raised by a party. Such an 

action is within the Board’s general authority to respond to a “proposal” that a 

document be treated as proprietary and is not a prohibited sua sponte action of the 

Board. Point Beach, LBP-82-5A, 15 NRC at 220; Point Beach, LBP-82-6, 

15 NRC 281; Point Beach, LBP-82-12, 15 NRC 354. 

3.1.2.9 Expedited Proceedings; Timing of Rulings 

Commission policies seek to instill discipline in the hearing process and ensure a 

prompt yet fair resolution of contested issues in adjudicatory proceedings. Private 

Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-01-26, 

54 NRC 376, 381 (2001), citing Statement of Policy on Conduct of Adjudicatory 

Proceedings, CLI-98-12, 48 NRC 18 (1998); Duke Energy Corp. (McGuire Nuclear 

Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-01-27, 54 NRC 385, 

390-91 (2001). This is in keeping with the Administrative Procedure Act’s directive 

that agencies should complete hearings and reach a final decision “within a 

reasonable time.” Private Fuel Storage, CLI-01-26, 54 NRC at 381, citing

5 U.S.C. § 558(c). 

The Commission may authorize the Board to use appropriate procedural devices to 

expedite a decision. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage 

Installation), CLI-03-5, 57 NRC 279, 284 (2003) (declining review of LBP-03-04, 

57 NRC 69 (2003)). 

JUNE 2011 HEARINGS 21
Licensing Boards have broad discretion regarding the appropriate time for ruling on 

petitions and motions filed with them. Absent clear prejudice to the petitioner from a 

Licensing Board’s deferral of a decision on a pending motion, an Appeal Board is 

constrained from taking any action since the standard of review of a Licensing 

Board’s deferral of action is whether such deferral is a clear abuse of discretion. 

Detroit Edison Co. (Greenwood Energy Center, Units 2 & 3), ALAB-376, 5 NRC 426 

(1977). 

A Licensing Board has authority under 10 C.F.R. § 2.307(a) (formerly § 2.711(a)) to 

extend or lessen the times provided in the Rules for taking any action. Houston 

Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-574, 

11 NRC 7, 13 (1980). However, the Commission discourages extensions of 

deadlines, absent extreme circumstances, for fear that an accumulation of 

seemingly benign deadline extensions will in the end substantially delay the 

outcome of the case. Hydro Res., Inc., CLI-99-1, 49 NRC 1, 1 (1999). 

As a general matter, when expedition is necessary, the Commission’s Rules of 

Practice are sufficiently flexible to permit it by ordering such steps as shortening, 

even drastically in some circumstances, the various time limits for the party’s filings 

and limiting the time for, and type of, discovery. Wis. Elec. Power Co. (Point Beach 

Nuclear Plant, Unit 1), ALAB-696, 16 NRC 1245, 1263 (1982), citing

10 C.F.R. § 2.307 (formerly § 2.711); Statement of Policy on Conduct of Licensing 

Proceedings, CLI-81-8, 13 NRC 452 (1981); Philadelphia Elec. Co. (Limerick 

Generating Station, Units 1 & 2), ALAB-845, 24 NRC 220, 251 (1986). 

Procedures for expediting a proceeding, however, should not depart substantially 

from those set forth in the Rules of Practice, and steps to expedite a case are 

appropriate only upon a party’s good-cause showing that expedition is essential. 

Point Beach, ALAB-696, 16 NRC at 1263, citing 10 C.F.R. § 2.307 (formerly 

§ 2.711). 

Under extraordinary circumstances, it is appropriate for the Licensing Board to 

address questions to an applicant, even before formal action has been completed, 

concerning admission of an intervenor into a license amendment proceeding. 

These questions need not be considered sua sponte issues requiring notification of 

the Commission. The Board may also authorize a variety of special filings in order 

to expedite a proceeding and may even grant petitioners the right to utilize discovery 

even before they are admitted as parties. However, special sensitivity must be 

shown to an intervenor’s procedural rights when the cause for haste in a proceeding 

was a voluntary decision by the applicant concerning both the timing and content of 

its request for a license amendment. Wis. Elec. Power Co. (Point Beach Nuclear 

Plant, Units 1 & 2), LBP-81-39, 14 NRC 819, 821, 824 (1981); Wis. Elec. Power Co.

(Point Beach Nuclear Plant, Units 1 & 2), LBP-81-55, 14 NRC 1017 (1981). 

Under exceptional circumstances, Board questions may precede discovery by the 

parties. Wis. Elec. Power Co. (Point Beach Nuclear Plant, Units 1 & 2), LBP-81-44, 

14 NRC 850, 851 (1981). 

When time pressures cause special difficulties for intervenors, discovery against 

intervenors may be restricted in order to prevent interference with their preparation 

for a hearing. A presiding officer has discretionary power to authorize specially 

HEARINGS 22 JUNE 2011
tailored proceedings in the interest of expedition. Wis. Elec. Power Co. (Point 

Beach Nuclear Plant, Units 1 & 2), LBP-81-46, 14 NRC 862, 863 (1981). 

When quick action is required on a license amendment, it is appropriate to interpret 

a petitioner’s safety concerns broadly and to admit a single broad contention that 

will permit wide-ranging discovery within the limited time without the need to decide 

repeated motions for late filing of new contentions. But the contentions must still 

relate to the license amendment which is requested. A petitioner may not challenge 

the safety of activities already permitted under the license. Wis. Elec. Power Co.

(Point Beach Nuclear Plant, Units 1 & 2), LBP-81-45, 14 NRC 853, 860 (1981). 

Though the Board may admit a single broad contention in the interest of expedition, 

its liberal policy towards admissions may be rescinded when the time pressure 

justifying it is relieved. However, issues already raised under the liberal policy are 

not retroactively affected by its rescission. Wis. Elec. Power Co. (Point Beach 

Nuclear Plant, Units 1 & 2), LBP-82-19A, 15 NRC 623, 625 (1982). 

In Consol. Edison Co. of N.Y. (Indian Point Nuclear Generating Unit 2); Power Auth. 

of N.Y. (Indian Point Nuclear Generating Unit 3), LBP-82-12A, 15 NRC 515 (1982), 

the intervening petitioner filed a motion requesting permission to observe the 

emergency planning exercise scheduled to be held two days later for the Indian 

Point facility. The Licensing Board ruled that, although 10 C.F.R. § 2.707 (formerly 

§ 2.741) directs that a party first seek discovery of this sort from another party and 

that only after a thirty (30)-day opportunity to respond can the party apply to the 

Board for relief, in this case, strict adherence to the rule would not be required. 

Where, as here, the exigencies of the case do not permit a thirty (30)-day response 

period, procedural delicacy will not be allowed to frustrate the purpose of the 

hearing – especially where no party is seriously disadvantaged by expediting the 

action. Indian Point, LBP-82-12A, 15 NRC at 518. Furthermore, where the issue of 

adequacy of emergency planning was clearly an issue to be fully investigated and 

the observations of the potential intervenors the next day would be useful to the 

Board in its deliberations, the Board would deny the licensee’s requests for stay and 

certification to the Commission, since to grant these motions would render the issue 

moot. Consol. Edison Co. of N.Y. (Indian Point Nuclear Generating Unit 2); Power 

Auth. of N.Y. (Indian Point Nuclear Generating Unit 3), LBP-82-12B, 15 NRC 523, 

525 (1982). 

3.1.2.10 Licensing Board’s Relationship with the NRC Staff 

A Licensing Board may not delegate its obligation to decide issues in controversy to 

the Staff. Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), 

ALAB-298, 2 NRC 730, 737 (1975); Commonwealth Edison Co. (Byron Nuclear 

Power Station, Units 1 & 2), LBP-84-2, 19 NRC 36, 210 (1984), rev’d on other 

grounds, ALAB-793, 20 NRC 1591, 1627 (1984), citing Perry, ALAB-298, 

2 NRC at 737. 

The rule against delegation applies even to issues a Licensing Board raises on its 

own motion in an operating license proceeding. Byron, LBP-84-2, 19 NRC at 211, 

citing Consol. Edison Co. of N.Y. (Indian Point Nuclear Generating Unit 3), 

CLI-74-28, 8 AEC 7, 8-9 (1974). The rule against delegation applies, in particular, 

to quality assurance issues. Byron, LBP-84-2, 19 NRC at 212, citing Vermont 

JUNE 2011 HEARINGS 23
Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-124, 

6 AEC 358 (1973). However, where there is nothing remaining to be adjudicated on 

a quality assurance issue, the adequacy of a 100 percent reinspection of a 

contractor’s work may be delegated to the Staff to consider posthearing. Byron, 

LBP-84-2, 19 NRC at 216-17. 

On the other hand, with respect to emergency planning, the Licensing Board will 

accept predictive findings and posthearing verification by Staff of the formulation 

and implementation of aspects of emergency plans. Byron, LBP-84-2, 

19 NRC at 212, 251-52, citing La. Power & Light Co. (Waterford Steam Electric 

Station, Unit 3), ALAB-732, 17 NRC 1076, 1103-04 (1983); Pub. Serv. Co. of N.H.

(Seabrook Station, Units 1 & 2), LBP-89-32, 30 NRC 375, 569, 594 (1989), rev’d in 

part on other grounds and remanded, ALAB-937, 32 NRC 135 (1990), aff’d in part 

and rev’d in part on other grounds, ALAB-941, 32 NRC 337 (1990), aff’d, ALAB-947, 

33 NRC 299, 318, 346, 347, 348-49, 361-62 (1991). 

With respect to emergency planning, it is “established NRC practice that, where 

appropriate, the Licensing Board may refer minor safety matters not pertinent to its 

basic findings to the NRC Staff for posthearing resolution, and may make predictive 

findings regarding emergency planning that are subject to posthearing verification.” 

La. Energy Servs. (Claiborne Enrichment Center), CLI-96-8, 44 NRC 107, 108 

(1996), citing Mass. v. NRC, 924 F.2d 311, 331 (D.C. Cir. 1991), cert. denied, 

502 U.S. 899 (1991). But only matters not material to the basic findings necessary 

for issuance of a license may be referred to the NRC Staff for posthearing resolution 

– e.g., minor procedural or verification questions. The “posthearing” approach 

should be employed sparingly and only in clear cases. La. Energy Servs., CLI-96-8, 

44 NRC at 108 (internal quotations and citations omitted). 

In a construction permit proceeding, the Licensing Board has a duty to assure that 

the NRC Staff’s review was adequate even as to matters which are uncontested. 

Gulf States Util. Co. (River Bend Station, Units 1 & 2), ALAB-444, 6 NRC 760, 774 

(1977). In this vein, a more recent case reiterating the rule that a Licensing Board 

may not delegate its obligation to decide significant issues to the NRC Staff is Pub. 

Serv. Co. of Ind. (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-461, 

7 NRC 313, 318 (1978). 

A Licensing Board does not have the power under 10 C.F.R. § 2.319 (formerly 

§ 2.718), or any other regulation, to direct the Staff in the performance of its 

independent responsibilities. New England Power Co. (NEP, Units 1 & 2), 

LBP-78-9, 7 NRC 271, 279-80 (1978); Metro. Edison Co. (Three Mile Island Nuclear 

Station, Unit 1), ALAB-772, 19 NRC 1193, 1263 (1984), rev’d in part on other 

grounds, CLI-85-2, 21 NRC 282 (1985). See Rockwell Int’l Corp. (Rocketdyne 

Division), ALAB-925, 30 NRC 709, 721-22 (1989), aff’d on other grounds, CLI-90-5, 

31 NRC 337 (1990); U.S. Army (Jefferson Proving Ground), LBP-05-9, 61 NRC 218, 

222 (2005), citing Duke Energy Corp. (Catawba Nuclear Station, Units 1 & 2), 

CLI-04-6, 59 NRC 62, 74 (2004) (in materials licensing proceedings conducted 

under informal procedural rules, a presiding officer’s jurisdiction does not extend to 

superintending the Staff’s discharge of its review functions). Thus, unless the 

Commission has made an extraordinary grant of power to the Board, the Board has 

no jurisdiction over the Staff’s non-adjudicatory functions. Catawba, CLI-04-6, 

59 NRC at 71. 

HEARINGS 24 JUNE 2011
Whether a Board may modify an order or action of the Staff depends on the 

relationship of the order to the subject matter of a pending proceeding. If closely 

related, a Staff order may not be issued, or is subject to a stay until resolution of the 

contested issue. If far removed from the subject matter of a pending proceeding, a 

Staff order should not be considered by the Board. Finally, there are matters which 

are properly the subject of independent Staff action, but which bear enough 

relationship to the subject matter of a pending proceeding that review by the 

Licensing Board is also appropriate. Nuclear Fuel Servs. Inc. (Western New York 

Nuclear Service Center), LBP-82-36, 15 NRC 1075, 1082 (1982), citing Cincinnati 

Gas & Elec. Co. (William H. Zimmer Nuclear Station), LBP-79-24, 10 NRC 226, 

229-30 (1979). 

Issues relating to NRC Staff compliance with and implementation of a Licensing 

Board order, rather than the order itself, should be presented to the Licensing Board 

in the first instance, rather than to the Appeal Board. Consumers Power Co.

(Midland Plant, Units 1 & 2), ALAB-684, 16 NRC 162, 165 (1982). 

The docketing and review activities of the Staff are not under the supervision of the 

Licensing Board. Only in the most unusual circumstances should a Licensing Board 

interfere in the review activities of the Staff. Philadelphia Elec. Co. (Fulton 

Generating Station, Units 1 & 2), LBP-79-23, 10 NRC 220, 223-24 (1979). See also

Jefferson Proving Ground, LBP-05-9, 61 NRC at 222, citing Catawba, CLI-04-6, 

59 NRC at 74 

The Staff produces, among other documents, the SER and the draft and final EISs 

(DEIS and FEIS). The studies and analyses which result in these reports are made 

independently by the Staff, and Licensing Boards have no rule or authority in their 

preparation. The Board does not have any supervisory authority over that part of 

the application review process that has been entrusted to the Staff. Ariz. Pub. Serv. 

Co. (Palo Verde Nuclear Generating Station, Units 2 & 3), LBP-83-36, 18 NRC 45, 

48-49 (1983), citing NEP, LBP-78-9, 7 NRC 271. See Offshore Power Sys.

(Floating Nuclear Power Plants), ALAB-489, 8 NRC 194, 206-07 (1978). 

In a materials license proceeding conducted under informal procedural rules, where 

the Staff delayed its technical review of a decommissioning-related proposal 

pending a licensee’s submission of relevant information requested by the Staff, a 

presiding officer found that he was foreclosed from either calling upon the Staff to 

justify its approach or directing the licensee to furnish a full explanation regarding its 

default in furnishing to the Staff the information sought from it. Jefferson Proving 

Ground, LBP-05-9, 61 NRC at 222. 

In a materials license proceeding conducted under informal procedural rules, where 

the presiding officer expressed concern about extended delay in a licensee’s 

submission of a decommissioning plan, the presiding officer commented in dicta that 

he had not undertaken examination of the license to determine whether the licensee 

might be in violation of some license condition (related to decommissioning), 

because any inquiry along those lines would be in the first instance the responsibility 

of the Office of Enforcement. Jefferson Proving Ground, LBP-05-9, 

61 NRC at 222 n.3. 

JUNE 2011 HEARINGS 25
The decision whether to approve a plan for construction during the period in which 

certain design engineering and construction management, and possibly construction 

responsibilities, are being transferred from one contractor to another, is initially 

within the province of the NRC Staff. But because of the safety significance of the 

work to be performed, and its clear bearing on whether, or on what terms, a project 

should be licensed, and on the resolution of certain existing contentions, 

consideration of the adequacy of, and controls to be exercised by, the applicants 

and NRC Staff over such work falls well within the jurisdiction of the Licensing 

Board. Houston Lighting & Power Co. (South Texas Project, Units 1 & 2), 

LBP-81-54, 14 NRC 918, 919-20 (1981). 

Adjudicatory boards do not possess the authority to direct the holding of hearings 

following the issuance of a construction permit, nor have boards been delegated the 

authority to direct the Staff in the performance of its administrative functions. 

Adjudicatory boards concerned about the conduct of the Staff’s functions should 

bring the matter to the Commission’s attention or certify the matter to the 

Commission. As part of its inherent supervisory authority, the Commission has the 

authority to direct the Staff’s performance of administrative functions, even over 

matters in adjudication. Carolina Power & Light Co. (Shearon Harris Nuclear Power 

Plant, Units 1, 2, 3 & 4), CLI-80-12, 11 NRC 514, 516-17 (1980). Cf. Jefferson 

Proving Ground, LBP-05-9, 61 NRC at 219, 223-24 (calling Commission’s attention 

to status of a materials licensing proceeding where the presiding officer found the 

Staff’s review was not moving forward). Ordinarily, Licensing Boards should not 

decide whether a given action significantly affects the environment without the 

record support provided by the Staff’s environmental review. Consumers Power Co.

(Big Rock Point Nuclear Plant), ALAB-636, 13 NRC 312, 330 (1981). 

Where the Staff scheduled a closed meeting with a license amendment applicant to 

discuss the applicant’s security submittal, the Board lacked jurisdiction to order the 

Staff to grant access to the meeting to a hearing petitioner’s representatives. 

Catawba, CLI-04-6, 59 NRC at 74. 

Where the Licensing Board finds that the Staff cannot demonstrate a reasonable 

cause for its delay in submitting environmental statements, the Board may issue a 

ruling noting the unjustified failure to meet a publication schedule and then proceed 

to hear other matters or suspend proceedings until the Staff files the necessary 

documents. Offshore Power Sys., ALAB-489, 8 NRC at 207. 

A Licensing Board should not call upon independent consultants to supplement an 

adjudicatory record except in that most extraordinary situation in which it is 

demonstrated that the Board cannot otherwise reach an informed decision on the 

issue involved. Part 2 of 10 C.F.R. gives the Staff a dominant role in assessing the 

radiological health and safety aspects of facilities involved in licensing proceedings. 

Before an adjudicatory board resorts to outside experts of its own, it should give the 

NRC Staff every opportunity to explain, correct and supplement its testimony. S.C. 

Elec. & Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-663, 14 NRC 

1140, 1146, 1156 (1981), rev. declined, CLI-82-10, 15 NRC 1377 (1982). 

Applying the criteria of Summer, CLI-82-10, 14 NRC at 1156, 1163, a Licensing 

Board determined that it had the authority to call an expert witness to focus on 

matters the Staff had apparently ignored in a motion for summary disposition of a 

HEARINGS 26 JUNE 2011
health effects contention. Carolina Power & Light Co. (Shearon Harris Nuclear 

Plant, Units 1 & 2), LBP-84-7, 19 NRC 432, 442-43 (1984), reconsid. on other 

grounds, LBP-84-15, 19 NRC 837, 838 (1984). 

After an order authorizing the issuance of a construction permit has become final 

agency action, and prior to the commencement of any adjudicatory proceeding on 

any operating license application, the exclusive regulatory power with regard to the 

facility lies with the Staff. Houston Lighting & Power Co. (South Texas Project, 

Units 1 & 2), ALAB-381, 5 NRC 582 (1977). Under such circumstances, an 

adjudicatory Board has no authority with regard to the facility or the Staff’s 

regulation of it. In the same vein, after a full-term, full-power operating license has 

been issued and the order authorizing it has become final agency action, no further 

jurisdiction over the license lies with any adjudicatory Board. Portland Gen. Elec. 

Co. (Trojan Nuclear Plant), ALAB-451, 6 NRC 889, 891 n.3 (1977); Duquesne Light 

Co. (Beaver Valley Power Station, Unit 1), ALAB-408, 5 NRC 1383, 1386 (1977); 

Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-11, 

7 NRC 381, 386, aff’d, ALAB-470, 7 NRC 473 (1978). 

For a Licensing Board to accept unsupported NRC Staff statements would be to 

abrogate its ultimate responsibility and would be substituting the Staff’s judgment for 

its own. On ultimate issues of fact, the Board must see the evidence from which to 

reach its own independent conclusions. Cleveland Elec. Illuminating Co. (Perry 

Nuclear Power Plant, Units 1 & 2), LBP-82-114, 16 NRC 1909, 1916 (1982). 

It is the Commission’s policy that the NRC Staff has primary responsibility for 

technical fact-finding on uncontested matters. Licensing Boards should defer to the 

NRC Staff on such uncontested matters unless the Staff’s review was incomplete or 

inadequately explained in the record. Exelon Generation Co. (Early Site Permit for 

Clinton ESP Site), LBP-06-28, 64 NRC 460, 492 (2006). 

Should a Staff review demonstrate the need for corrective action, the decision on 

the adequacy of such a corrective action is one that the Licensing Board may not 

delegate. Case law suggests that even in cases where a Board resolves an issue in 

an applicant’s favor, leaving the Staff to perform what is believed to be a 

confirmatory review, the Staff should inform the Board should it discover that 

corrective action is warranted. Long Island Lighting Co. (Shoreham Nuclear Power 

Station, Unit 1), LBP-83-57, 18 NRC 445, 520 n.21 (1983). 

A Licensing Board faced with a NEPA review by the Staff must independently 

determine whether the NEPA process has been complied with, what the final 

balance of competing factors is, and whether the license or permit should be issued. 

In doing so, however, the Board must not undertake its own independent research 

or duplicate Staff analysis that has already been done. The Board may only 

second-guess the Staff’s underlying technical or factual findings where the Board 

determines that either (1) the Staff review was incomplete or (2) the record does not 

sufficiently explain the Staff’s findings. Dominion Nuclear North Anna, LLC (Early 

Site Permit for North Anna ESP Site), CLI-05-17, 62 NRC 5, 45 (2005); USEC, Inc.

(Am. Centrifuge Plant), LBP-07-6, 65 NRC 429, 438 (2007). 

A Board’s urging of settlement discussions and its suggestion of a possible route to 

settlement, even when the Board’s jurisdiction over the matter is in question, is not 

JUNE 2011 HEARINGS 27
an impermissible Board direction to the Staff regarding how the Staff is to perform 

its non-adjudicatory regulatory functions. By urging settlement and suggesting a 

possible approach, the Board is merely making a nonbinding suggestion to the Staff; 

it is in no way “directing” the Staff to settle the case or to do so in a particular 

manner. Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), 

CLI-06-24, 64 NRC 111, 116 n.14 (2006). 

3.1.2.11 Licensing Board’s Relationship with States and Other Agencies 

 (Including the Council on Environmental Quality) 

The requirements of state law are for state bodies to determine, and are beyond the 

jurisdiction of NRC adjudicatory bodies. Northern States Power Co. (Tyrone Energy 

Park, Unit 1), ALAB-464, 7 NRC 372, 375 (1978), citing Cleveland Elec. Illuminating 

Co. (Perry Nuclear Plant, Units 1 & 2), ALAB-443, 6 NRC 741, 748 (1977). In 

Tyrone, the Wisconsin Public Service Commission decided that some of the 

applicants were “foreign corporations,” and so could not construct the Tyrone 

facility. Although the Appeal Board would not question the state’s ruling, it 

remanded the case to reconsider financial and technical qualifications in light of the 

changes in legal relationships of the co-applicants that resulted from the state 

determination. See also Long Island Lighting Co. (Shoreham Nuclear Power 

Station, Unit 1), LBP-85-12, 21 NRC 644, 899 (1985), rev’d in part on other grounds, 

ALAB-847, 24 NRC 412 (1986). 

In the absence of a controlling contrary judicial precedent, the Commission will defer 

to a State Attorney General’s interpretation of state law concerning the designation 

of representatives of a state participating in an NRC proceeding as an interested 

state. Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), ALAB-862, 

25 NRC 144, 148 (1987). 

The Commission lacks the authority to disqualify a state official or an entire state 

agency based on an assertion that they have prejudged fundamental issues in a 

proceeding involving the transfer of jurisdiction to a state to regulate nuclear waste 

products. A party must pursue such due process claims under state law. State of 

Illinois (Section 274 Agreement), CLI-88-6, 28 NRC 75, 88 (1988). 

A Licensing Board does not have jurisdiction in a construction permit proceeding 

under the Atomic Energy Act of 1954, as amended (AEA), to review the decision of 

the Rural Electrification Administration to guarantee a construction loan to a partowner of the facility being reviewed. Pub. Serv. Co. of Ind. (Marble Hill Nuclear 

Generating Station, Units 1 & 2), ALAB-493, 8 NRC 253, 267-68 (1978). 

It would be improper for a Licensing Board to entertain a collateral attack upon any 

action or inaction of sister federal agencies on a matter over which the Commission 

is totally devoid of any jurisdiction. Ariz. Pub. Serv. Co. (Palo Verde Nuclear 

Generating Station, Units 1, 2, & 3), LBP-82-117A, 16 NRC 1964, 1991 (1982). 

Thus, a Licensing Board refused to review whether the Federal Emergency 

Management Agency (FEMA) complied with its own agency regulations in 

performing its emergency planning responsibilities. Philadelphia Elec. Co. (Limerick 

Generating Station, Units 1 & 2), ALAB-836, 23 NRC 479, 499 (1986). See Long 

Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-89-1, 29 NRC 5, 

18-19 (1989). 

HEARINGS 28 JUNE 2011
Although the Commission will take cognizance of activities before other legal 

tribunals when the facts so warrant, it should not delay its licensing proceedings or 

withhold a license merely because some other legal tribunal might conceivably take 

future action which may later impact upon the operation of a nuclear facility. Palo 

Verde, LBP-82-117A, 16 NRC at 1991, citing Pub. Serv. Co. of N.H. (Seabrook 

Station, Units 1 & 2), CLI-78-14, 7 NRC 952, 958 n.5 (1978); Wis. Elec. Power Co.

(Koshkonong Nuclear Plant, Units 1 & 2), CLI-74-45, 8 AEC 928, 930 (1974); 

Southern Cal. Edison Co. (San Onofre Nuclear Generating Station, Units 2 & 3), 

ALAB-171, 7 AEC 37, 39 (1974); Perry, ALAB-443, 6 NRC at 748; Shoreham, 

LBP-85-12, 21 NRC at 900; Kerr-McGee Chem. Corp. (West Chicago Rare Earths 

Facility), LBP-85-46, 22 NRC 830, 832 & n.9 (1985). 

The occurrence of concurrent proceedings before a state regulatory agency is not a 

sufficient ground for suspension of a reactor license transfer proceeding, when the 

state agency is reviewing a license transfer under a different statutory authority than 

the NRC (and its conclusion would therefore not be dispositive of issues before the 

NRC) and when an insufficient explanation of financial burden reduction on the 

parties has not been fully explained. Niagara Mohawk Power Corp. (Nine Mile Point 

Nuclear Station, Units 1 & 2), CLI-99-30, 50 NRC 333, 344 (1999). 

Under the AEA, NRC regulates most uses of source material, including depleted 

uranium, in the United States and U.S. territories. However, NRC does not regulate 

most of the activities conducted by the U.S. Department of Energy (DOE), including, 

for example, testing performed at DOE test sites, or battlefield and direct support 

activities thereof involving source material by the armed forces outside of U.S. 

territories. Therefore, NRC did not regulate the testing performed at DOE’s Nevada 

Test Site, nor did it regulate the military use of depleted uranium munitions in 

Operation Desert Storm, Serbia, Okinawa, or Kosovo. NRC cannot grant the 

petition or take any other regulatory action with respect to military activities that it 

does not regulate. U.S. Dept. of Def. Users of Depleted Uranium, DD-01-1, 53 NRC 

103, 104 (2001). 

Where a statute is administered by several different agencies, courts do not defer to 

any one agency’s particular interpretation. Envirocare of Utah, Inc. v. NRC, 

194 F.3d 72, 78 (D.C. Cir. 1999). 

As an independent regulatory agency, the Commission does not consider itself 

legally bound by substantive regulations of the Council on Environmental Quality 

(CEQ). Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power 

Station), ALAB-876, 26 NRC 277, 284 n.5 (1987); Pac. Gas & Elec. Co. (Diablo 

Canyon Nuclear Power Plant, Units 1 & 2), ALAB-880, 26 NRC 449, 461 (1987), 

remanded on other grounds, Sierra Club v. NRC, 862 F.2d 222, 228-29 

(9th Cir. 1988). 

While the Commission agrees that CEQ’s regulations are entitled to substantial 

deference where applicable, the CEQ regulations apply only to federal actions to 

which NEPA applies. In adopting the CEQ regulations, the Commission stated that 

the NRC is not bound by those portions of the CEQ’s NEPA regulations that have 

some substantive impact on the way in which the Commission performs its 

regulatory functions. 49 Fed. Reg. 9,352 (Mar. 12, 1984); Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), CLI-91-02, 33 NRC 61 (1991). 

JUNE 2011 HEARINGS 29
At least one court has held that CEQ guidelines are not binding on the NRC if not 

expressly adopted. Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719, 725, 743 

(3rd Cir. 1989). 

3.1.2.12 Conduct of Hearing by Licensing Board 

The Commission has issued a Statement of Policy on Conduct of Licensing 

Proceedings, CLI-81-8, 13 NRC 452 (1981), which provides guidance to Licensing 

Boards on the timely completion of proceedings while ensuring a full and fair record. 

Specific areas addressed include: scheduling of proceedings; consolidation of 

intervenors; negotiations by parties; discovery; settlement conferences; timely 

rulings; summary disposition; devices to expedite party presentations, such as prefiled testimony outlines; round-table expert witness testimony; filing of proposed 

findings of fact and conclusions of law; and scheduling to allow prompt issuance of 

an initial decision in cases where construction has been completed. 

Consistency with the Commission’s Statement of Policy on Conduct of Licensing 

Proceedings requires that in general delay be avoided, and specifically that a Board 

obtain Commission guidance when it becomes apparent that such guidance will be 

necessary. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), 

LBP-83-21, 17 NRC 593, 604 (1983). 

A Licensing Board has considerable flexibility in regulating the course of a hearing 

and designating the order of procedure. Philadelphia Elec. Co. (Limerick 

Generating Station, Units 1 & 2), ALAB-819, 22 NRC 681, 727 (1985), citing

10 C.F.R. §§ 2.319(g), 2.324 (formerly §§ 2.718(e), 2.731). See Metro. Edison Co.

(Three Mile Island Nuclear Station, Unit 1), ALAB-772, 19 NRC 1193, 1245-46 

(1984), rev’d in part on other grounds, CLI-85-2, 21 NRC 282 (1985). Although the 

Commission’s Rules of Practice set forth a general schedule for the filing of 

proposed findings, a Licensing Board is authorized to alter that schedule or to 

dispense with it entirely. Limerick, ALAB-819, 22 NRC at 727, citing

10 C.F.R. § 2.712(a) (formerly § 2.754(a)). 

The procedures set forth in the Rules of Practice are the only ones that should be 

used in any licensing proceeding, absent explicit Commission instructions in a 

particular case. Wis. Elec. Power Co. (Point Beach Nuclear Plant, Unit 1), 

ALAB-696, 16 NRC 1245, 1263 (1982), citing 10 C.F.R. § 2.319 (formerly § 2.718). 

A Board must use its powers to assure that the hearing is focused upon the matters 

in controversy and that the hearing process is conducted as expeditiously as 

possible, consistent with the development of an adequate decisional record. Long 

Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-788, 

20 NRC 1102, 1152 (1984). A Board may limit cross-examination, redirect a party’s 

presentation of its case, restrict the introduction of reports and other material into 

evidence, and require the submittal of all or part of the evidence in written form as 

long as the parties are not thereby prejudiced. Shoreham, ALAB-788, 

20 NRC at 1151-54, 1178. 

The scope of cross-examination and the parties that may engage in it in particular 

circumstances are matters of Licensing Board discretion. Pub. Serv. Co. of Ind.

HEARINGS 30 JUNE 2011
(Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-461, 7 NRC 313, 316 

(1978). 

Pursuant to 10 C.F.R. § 2.319 (formerly § 2.718), Boards may issue a wide variety 

of procedural orders that are neither expressly authorized nor prohibited by the 

rules. They may permit intervenors to contend that allegedly proprietary 

submissions should be released to the public. They may also authorize discovery or 

an evidentiary hearing that is not relevant to the contentions but is relevant to an 

important pending procedural issue, such as the trustworthiness of a party to 

receive allegedly proprietary material. In addition, they may defer depositions to 

allow both parties to have equal access to extensive evidence which might be 

adverse to the deponent. Ga. Power Co. (Vogtle Electric Generating Plant, Units 1 

& 2), LBP-93-8, 37 NRC 292, 299-301 (1993). However, discovery and hearings 

not related to contentions are of limited availability. They may be granted, on 

motion, if it can be shown that the procedure sought would serve a sufficiently 

important purpose to justify the associated delay and cost. Wis. Elec. Power Co.

(Point Beach Nuclear Plant, Units 1 & 2), LBP-82-2, 15 NRC 48, 53 (1982). 

While a Licensing Board should endeavor to conduct a licensing proceeding in a 

manner that takes account of special circumstances faced by any participant, the 

fact that a party may possess fewer resources than others to devote to the 

proceeding does not relieve that party of its hearing obligations. Wis. Elec. Power 

Co. (Point Beach Nuclear Plant, Unit 1), ALAB-696, 16 NRC 1245, 1261 n.29 

(1982), citing Statement of Policy on the Conduct of Licensing Proceedings, 

CLI-81-8, 13 NRC at 454; Limerick, ALAB-819, 22 NRC at 730; Gen. Pub. Util. 

Nuclear Corp. (Three Mile Island Nuclear Station, Unit 1), LBP-86-14, 23 NRC 553, 

558 (1986). 

A Commission-ordered discretionary proceeding before a Licensing Board held to 

resolve issues designated by the Commission, although adjudicatory in form, was 

not an “on-the-record” proceeding within the meaning of the AEA. Therefore, in 

admitting and formulating contentions and sub-issues and determining order of 

presentation, the Board would not be bound by 10 C.F.R. Part 2. As to all other 

matters, 10 C.F.R. Part 2 would control. Consol. Edison Co. of N.Y. (Indian Point 

Nuclear Generating Unit 2), Power Auth. of N.Y. (Indian Point Nuclear Generating 

Unit 3), CLI-81-1, 13 NRC 1, 5 n.4 (1981), clarified by CLI-81-23, 14 NRC 610, 611 

(1981). 

In order that a proper record is compiled on all matters in controversy, as well as 

sua sponte issues raised by it, a Board has the right and responsibility to take an 

active role in the examination of witnesses. S.C. Elec. & Gas Co. (Virgil C. Summer 

Nuclear Station, Unit 1), ALAB-642, 13 NRC 881, 893 (1981); Cleveland Elec. 

Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), ALAB-802, 21 NRC 490, 

498-99 (1985). Although a Board may exercise broad discretion in determining the 

extent of its direct participation in the hearing, the Board should avoid excessive 

involvement which could prejudice any of the parties. Perry, ALAB-802, 

21 NRC at 499. This does not mean that a Licensing Board should remain mute 

during a hearing and ignore deficiencies in the testimony. A Board must satisfy 

itself that the conclusions expressed by expert witnesses on significant safety or 

environmental questions have a solid foundation. Limerick, ALAB-819, 

22 NRC at 741, citing S.C. Elec. & Gas Co. (Virgil C. Summer Nuclear Station, 

JUNE 2011 HEARINGS 31
Unit 1), ALAB-663, 14 NRC 1140, 1156 (1981), rev. denied, CLI-82-10, 

15 NRC 1377 (1982). 

Pursuant to 10 C.F.R. § 2.319 (formerly § 2.718), the Licensing Board has the duty 

to conduct a fair and impartial hearing under the law, which includes the 

responsibility to impose upon all parties to a proceeding the obligation to disclose all 

potential conflicts of interest. Fundamental fairness clearly requires disclosure of 

potential conflicts so as to enable the Board to determine the materiality of such 

information. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), 

LBP-82-73, 16 NRC 974, 979 (1982). See also Vogtle, LBP-93-8, 

37 NRC at 299-301. 

A Board may refer a potential conflict of interest matter to the NRC General 

Counsel, who is responsible for interpreting the NRC’s conflict of interest rules. 

Once the matter has been handled in accordance with NRC internal procedures, a 

Board will not review independently either the General Counsel’s determination on 

the matter or the judgment on whether any punitive measures are required. La. 

Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-803, 

21 NRC 575, 583-84 (1985). 

The Commission also outlined examples of sanctions a Licensing Board may 

impose on a participant in a proceeding who fails to meet its obligations. A Board 

can warn the offending party that its conduct will not be tolerated in the future; 

refuse to consider a filing by that party; deny the right to cross-examine or present 

evidence; dismiss one or more of its contentions; impose sanctions on its counsel; 

or, in severe cases, dismiss the party from the proceeding. In selecting a sanction, 

a Board should consider the relative importance of the unmet obligation; the 

potential for harm to other parties or the orderly course of the proceedings; whether 

the occurrence is part of a pattern of behavior; the importance of any safety or 

environmental concerns raised by the party; and all of the circumstances. See Long 

Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-115, 

16 NRC 1923, 1928 (1982), citing Statement of Policy on Conduct of Licensing 

Proceedings, CLI-81-8, 13 NRC at 454; Northeast Nuclear Energy Co. (Millstone 

Nuclear Power Station, Unit 2), LBP-92-26, 36 NRC 191, 194-95 (1992). 

Pursuant to 10 C.F.R. § 2.320 (formerly § 2.707), the Licensing Board is 

empowered, on the failure of a party to comply with any prehearing conference 

order, “to make such orders in regard to the failure as are just.” The just result, 

where intervenors have not fully availed themselves of an opportunity to further 

particularize their contentions, is to simply rule on intervenors’ contentions as they 

stand, dismissing those proposed contentions which lack adequate bases and 

specificity. Shoreham, LBP-82-73, 16 NRC at 990; Philadelphia Elec. Co. (Limerick 

Generating Station, Units 1 & 2), ALAB-804, 21 NRC 587, 592 (1985). 

3.1.2.12.1 Powers/Role of Presiding Officer 

The presiding officer has the duty to conduct a fair and impartial hearing, to 

maintain order, and to take appropriate action to avoid delay. Specific powers of 

the presiding officer are set forth in 10 C.F.R. § 2.319 (formerly § 2.718). While 

the Licensing Board has broad discretion as to the manner in which a hearing is 

conducted, any actions pursuant to that discretion must be supported by a record 

HEARINGS 32 JUNE 2011
that indicates that such action was based on a consideration of discretionary 

factors. Tenn. Valley Auth. (Hartsville Nuclear Plant, Units 1A, 2A, 1B & 2B), 

ALAB-463, 7 NRC 341, 356 (1978). 

A presiding officer has the authority to rule in the first instance on questions 

regarding the existence and scope of jurisdiction. Fansteel Inc. (Muskogee, 

Oklahoma Facility), LBP-03-13, 58 NRC 96, 100 (2003). 

In a complex proceeding, it is not unfair for the presiding officer to permit parties 

to rectify fatal deficiencies in their initial written presentations by posing additional 

written questions to the parties. Hydro Res., Inc., CLI-00-12, 52 NRC 1, 4 

(2000). 

§ 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. 

The presiding officer may encourage the parties to reach a settlement. However, 

the presiding officer may not participate in any private and confidential settlement 

negotiations among the parties. Any settlement conference conducted by the 

presiding officer pursuant to 10 C.F.R. § 2.319(b) (formerly § 2.1209(c)) must be 

open to the public, absent compelling circumstances. Rockwell Int’l Corp.

(Rocketdyne Division), ALAB-925, 30 NRC 709, 720-21 (1989), aff’d, CLI-90-5, 

31 NRC 337, 339-40 (1990). 

The presiding officer in a Subpart L informal adjudicatory proceeding, who was 

concerned about an incomplete hearing file, ordered the Staff to include in the 

hearing file any NRC report (including inspection reports and findings of violation) 

and any correspondence between the NRC and the licensee during the previous 

10 years which the intervenors could reasonably believe to be relevant to any of 

their admitted areas of concern. Curators of the Univ. of Mo., LBP-90-22, 

31 NRC 592, 593 (1990); 10 C.F.R. § 2.1203 (formerly § 2.1231(b)). The 

presiding officer further directed the Staff to serve all such relevant documents on 

the parties, since there was no local public document room and the burden on 

the Staff to provide a copy of publicly available documents to the intervenors’ 

attorney was minuscule. Curators of the Univ. of Mo., LBP-90-27, 32 NRC 40, 

42-43 (1990). 

Where the presiding officer has reviewed an extensive record in detail, with the 

assistance of a technical advisor, the Commission is generally disinclined to 

upset his findings and conclusions, particularly on matters involving fact-specific 

issues or where the affidavits or submissions of experts must be weighed. Hydro 

Res., Inc. (P.O. Box 15910, Rio Rancho, N.M. 87174), CLI-01-4, 53 NRC 31, 45, 

46 (2001). Hydro Res., Inc. (P.O. Box 777, Crownpoint, N.M. 87313), CLI-06-1, 

63 NRC 1, 2 (2006). 

Exercising his or her general authority to simplify and clarify the issues, a 

presiding officer can recast what a petitioner sets out as two contentions into 

one. Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), LBP-96-15, 

44 NRC 8, 22 (1996). See also La. Energy Servs., L.P. (National Enrichment 

Facility), LBP-04-14, 60 NRC 40, 57 (2004). 

JUNE 2011 HEARINGS 33
A presiding officer lacks authority to adopt a “policy” that invalidates a 

Commission regulation. Hydro Res., Inc., LBP-06-1, 63 NRC 41, 59 (2006), 

aff’d, CLI-06-14, 63 NRC 510 (2006). 

3.1.3 Quorum Requirements for Licensing Board Hearing 

In Commonwealth Edison Co. (Zion Station, Units 1 & 2), ALAB-222, 8 AEC 229 

(1974), the Appeal Board attempted to establish elaborate rules to be followed before a 

Licensing Board may sit with a quorum only, despite the fact that 10 C.F.R. § 2.321(c) 

(formerly § 2.721(d)) requires only a chairman and one technical member to be 

present. The Appeal Board’s ruling in ALAB-222 was reviewed by the Commission in 

CLI-74-35, 8 AEC 374 (1974). There, the Commission held that hearings by quorum 

are permitted according to the terms of 10 C.F.R. § 2.321(c) (formerly § 2.721(d)) and 

that inflexible guidelines for invoking the quorum rule are inappropriate. At the same 

time, the Commission indicated that quorum hearings should be avoided wherever 

practicable and that the absence of a Licensing Board member must be explained on 

the record. Zion, ALAB-222, 8 AEC at 376. 

3.1.4 Disqualification of a Licensing Board Member 

3.1.4.1 Motion to Disqualify Adjudicatory Board Member 

The rules governing motions for disqualification or recusal are generally the same 

for the administrative judiciary as for the judicial branch itself, and the Commission 

has followed that practice. Suffolk County & N.Y. Motion for Disqualification of Chief 

Admin. Judge Cotter (Shoreham Nuclear Power Station, Unit 1), LBP-84-29A, 

20 NRC 385, 386 (1984), citing Houston Lighting & Power Co. (South Texas 

Project, Units 1 & 2), CLI-82-9, 15 NRC 1363, 1366 (1982); Hydro Res., Inc.

(2929 Coors Rd. Suite 101, Albuquerque, N.M. 87120), CLI-98-9, 47 NRC 326, 331 

(1998). 

The general requirements for motions to disqualify are discussed in Duquesne Light 

Co. (Beaver Valley Power Station, Units 1 & 2), ALAB-172, 7 AEC 42 (1974). 

Based on that discussion and on cases dealing with related matters: 

(1) All disqualification motions must be timely filed. Commonwealth 

Edison Co. (LaSalle County Nuclear Power Station, Units 1 & 2), 

CLI-73-8, 6 AEC 169 (1973); Consumers Power Co. (Midland 

Plant, Units 1 & 2), ALAB-101, 6 AEC 60 (1973). In particular, any 

question of bias of a Licensing Board member must be raised at 

the earliest possible time or it is waived. Commonwealth Edison 

Co. (Zion Station, Units 1 & 2), ALAB-226, 8 AEC 381, 384-386 

(1974); Northern Ind. Pub. Serv. Co. (Bailly Generating Station, 

Nuclear-1), ALAB-224, 8 AEC 244, 247 (1974); Pub. Serv. Co. of 

N.H. (Seabrook Station, Units 1 & 2), ALAB-749, 18 NRC 1195, 

1198 (1983); Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 

& 2), ALAB-751, 18 NRC 1313, 1315 (1983), reconsid. denied, 

ALAB-757, 18 NRC 1356 (1983); Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), ALAB-777, 

20 NRC 21, 32 (1984). The posture of a proceeding may be 

considered in evaluating the timeliness of the filing of a motion for 

HEARINGS 34 JUNE 2011
disqualification. Long Island Lighting Co. (Shoreham Nuclear 

Power Station, Unit 1), CLI-84-20, 20 NRC 1061, 1081-82 (1984); 

Seabrook, ALAB-757, 18 NRC at 1361. 

(2) A disqualification motion must be accompanied by an affidavit 

establishing the basis for the charge, even if founded on matters 

of public record. Detroit Edison Co. (Greenwood Energy Center), 

ALAB-225, 8 AEC 379 (1974); Shoreham, ALAB-777, 

20 NRC at 23, n.1; Philadelphia Elec. Co. (Limerick Generating 

Station, Units 1 & 2), CLI-8515, 22 NRC 184, 185 n.3 (1985). 

(3) A disqualification motion, as with all other motions, must be 

served on all parties or their attorneys. 10 C.F.R. §§ 2.302(b), 

2.323(a) (formerly §§ 2.701(b), 2.730(a)). 

Disqualification of a Licensing Board member, either on his own motion or on motion 

of a party, is addressed in 10 C.F.R. § 2.313 (formerly § 2.704). Strict compliance 

with § 2.313(b)(2) (formerly § 2.704(c)) is required. Houston Lighting & Power Co.

(Allens Creek Nuclear Generating Station, Unit 1), ALAB-630, 13 NRC 84, 86 

(1981). A motion to disqualify a member of a Licensing Board is determined by the 

individual Board member rather than by the full Licensing Board. Pub. Serv. Elec. & 

Gas Co. (Hope Creek Generating Station, Unit 1), ALAB-759, 19 NRC 13, 21 n.26 

(1984); Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), ALAB-748, 

18 NRC 1184, 1186 n.1 (1983), citing Pac. Gas & Elec. Co. (Diablo Canyon Nuclear 

Power Plant, Units 1 & 2), CLI-80-6, 11 NRC 411 (1980). 

Pursuant to 10 C.F.R. 2.313(b)(2), if an ASLB member denies a party’s motion to 

recuse him or her, the motion is automatically referred to the Commission to 

“determine the sufficiency of the grounds alleged.” Entergy Nuclear Generation Co. 

and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-22, 

72 NRC __ (Aug. 27, 2010) (slip op. at 1). Section 2.313 does not contemplate 

additional briefing by the parties following referral of a decision denying a recusal 

motion. Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc.

(Pilgrim Nuclear Power Station), CLI-10-22, 72 NRC __ (Aug. 27, 2010) (slip op. 

at 2). 

The Appeal Board has stressed that a party moving for disqualification of a 

Licensing Board member has a manifest duty to be most particular in establishing 

the foundation for its charge as well as to adhere scrupulously to the affidavit 

requirement of 10 C.F.R. § 2.313(b)(2) (formerly § 2.704(c)). Dairyland Power 

Coop. (La Crosse Boiling Water Reactor), ALAB-497, 8 NRC 312, 313 (1978). See 

also Houston Lighting & Power Co. (South Texas Project, Units 1 & 2), ALAB-672, 

15 NRC 677, 680 (1982). 

Nevertheless, as to the affidavit requirement, the Appeal Board has held that the 

movant’s failure to file a supporting affidavit is not crucial where the motion to 

disqualify is founded on a fact to which the Licensing Board itself had called 

attention and is particularly narrow, thereby obviating the need to reduce the 

likelihood of an irresponsible attack on the Board member in question through use of 

an affidavit. Sheffield, ALAB-494, 8 NRC at 301 n.3. 

JUNE 2011 HEARINGS 35
An intervenor’s status as a party to a proceeding does not of itself give it standing to 

move for disqualification of a Licensing Board member on another group’s behalf. 

Puget Sound Power & Light Co. (Skagit Nuclear Power Project, Units 1 & 2), 

ALAB-556, 10 NRC 30, 32-33 (1979); Seabrook, ALAB-748, 18 NRC at 1187. 

However, a party requesting disqualification may attempt to establish, by reference 

to a Board member’s overall conduct, that a pervasive climate of prejudice exists in 

which the party cannot obtain a fair hearing. A party may also attempt to 

demonstrate a pattern of bias by a Board member toward a class of participants of 

which it is a member. Seabrook, ALAB-748, 18 NRC at 1187-1188. See also

Seabrook, ALAB-749, 18 NRC at 1199 n.12. 

ASLB judges are under a continuing obligation to recuse themselves if grounds for 

their recusal arise. Entergy Nuclear Generation Co. and Entergy Nuclear 

Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-22, 72 NRC __ (Aug. 27, 

2010) (slip op. at 7). 

3.1.4.2 Grounds for Disqualification of Adjudicatory Board Member 

The aforementioned rules (Section 3.1.4.1) with respect to motions to disqualify 

apply, of course, where the motion is based on the assertion that a Board member 

is biased. Although a Board member or the entire Board will be disqualified if bias is 

shown, the mere fact that a Board issued a large number of unfavorable or even 

erroneous rulings with respect to a particular party is not evidence of bias against 

that party. Northern Ind. Pub. Serv. Co. (Bailly Generating Station, Nuclear-1), 

ALAB-224, 8 AEC 244, 246 (1974); Metro. Edison Co. (Three Mile Island Nuclear 

Station, Unit 1), CLI-85-5, 21 NRC 566, 569 (1985); Philadelphia Elec. Co. (Limerick 

Generating Station, Units 1 & 2), ALAB-819, 22 NRC 681, 721, 726 n.60 (1985). 

See Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), 

LBP-88-29, 28 NRC 637, 641 (1988), aff’d, ALAB-907, 28 NRC 620 (1988). Rulings 

and findings made in the course of a proceeding are not in themselves sufficient 

reasons to believe that a tribunal is biased for or against a party. Pac. Gas & Elec. 

Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-644, 13 NRC 903, 923 

(1981). 

Standing alone, the failure of an adjudicatory tribunal to decide questions before it 

with suitable promptness scarcely allows an inference that the tribunal (or a member 

thereof) harbors a personal prejudice against one litigant or another. Puget Sound 

Power & Light Co. (Skagit Nuclear Power Project, Units 1 & 2), ALAB-556, 

10 NRC 30, 34 (1979). 

The disqualification of a Licensing Board member may not be obtained on the 

ground that he or she committed error in the course of the proceeding at bar or 

some earlier proceeding. Dairyland Power Coop. (La Crosse Boiling Water 

Reactor), ALAB-614, 12 NRC 347, 348-49 (1980). 

In the absence of bias, an Appeal Board member who participated as an adjudicator 

in a construction permit proceeding for a facility is not required to disqualify himself 

from participating as an adjudicator in the operating license proceeding for the same 

facility. Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), 

CLI-80-11, 11 NRC 511 (1980). 

HEARINGS 36 JUNE 2011
An administrative trier of fact is subject to disqualification if: 

(1) he has a direct, personal, substantial pecuniary interest in a result; 

(2) he has a personal bias against a participant; 

(3) he has served in a prosecutive or investigative role with regard to the 

same facts as are in issue; 

(4) he has prejudged factual – as distinguished from legal or policy – issues; 

or 

(5) he has engaged in conduct which gives the appearance of personal bias 

or prejudgment of factual issues. 

Nuclear Eng’g Co. (Sheffield, Illinois Low-Level Radioactive Waste Disposal Site), 

ALAB-494, 8 NRC 299, 301 (1978); Long Island Lighting Co. (Shoreham Nuclear 

Power Station, Unit 1), ALAB-777, 20 NRC 21, 34 (1984), citing Pub. Serv. Elec. & 

Gas Co. (Hope Creek Generating Station, Unit 1), ALAB-759, 19 NRC 13, 20 

(1984), quoting Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-101, 

6 AEC 60, 65 (1973). 

The fact that a member of an adjudicatory tribunal may have a crystallized point of 

view on questions of law or policy is not a basis for his or her disqualification. 

Shoreham, ALAB-777, 20 NRC at 34, citing Midland, ALAB-101, 6 AEC at 66; 

Shoreham, LBP-88-29, 28 NRC at 641. 

An ASLB judge’s experience and background in a relevant technical field does not 

imply knowledge of the specific disputed facts in the case.” Entergy Nuclear 

Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power 

Station), CLI-10-22, 72 NRC __ (Aug. 27, 2010) (slip op. at 6). 

Although the disqualification standard for federal judges in 28 U.S.C. § 455 does not 

by its terms apply to administrative judges, the Commission and its adjudicatory 

boards have applied it in dispositioning motions for disqualification under 

10 C.F.R. § 2.313. Entergy Nuclear Generation Co. and Entergy Nuclear 

Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-22, 72 NRC __ 

(Aug. 27, 2010) (slip op. at 2); Houston Lighting & Power Co. (South Texas Project, 

Units 1 & 2), CLI-82-9, 15 NRC 1363, 1365-67 (1982) (making clear that Licensing 

Board members are governed by the same disqualification standards that apply to 

federal judges). 

U.S.C., Sections 144 and 455 require a federal judge to step aside if a party to the 

proceeding files a timely and sufficient affidavit that the judge before whom the 

matter is pending has a personal bias or prejudice either against that party or in 

favor of an adverse party. Public Serv. Elec. & Gas Co. et al. (Hope Creek 

Generating Station, Unit 1), ALAB-759, 19 NRC 13, 20 (1984). Section 455(a) 

imposes an objective standard: whether a reasonable person knowing all the 

circumstances would be led to the conclusion that the judge’s impartiality might 

reasonably be questioned. Id. at 21-22; Hydro Res., Inc. (2929 Coors Rd., 

Suite 101, Albuquerque, N.M. 87120), CLI-98-9, 47 NRC 326, 331 (1998). 

“Section 455(a) requires a showing that would cause an objective, disinterested 

observer fully informed of the underlying facts [to] entertain significant doubt that 

justice would be done absent recusal.” Entergy Nuclear Generation Co. and 

JUNE 2011 HEARINGS 37
Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-22, 

72 NRC __ (Aug. 27, 2010) (slip op. at 6) (quoting In re Aguinda, 241 F.3d 194, 201 

(2d Cir. 2001)). Inquiry under 28 U.S.C. § 455 must be made from the perspective 

of a “reasonable person, knowing all the circumstances.” Entergy Nuclear 

Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power 

Station), CLI-10-22, 72 NRC __ (Aug. 27, 2010) (slip op. at 6). The possibility “that 

an unreasonable person, focusing on only one aspect of the story, might perceive a 

risk of bias is irrelevant.” Id. 

Under 28 U.S.C. § 455(b)(2), a judge must disqualify himself in circumstances 

where, inter alia, he served in private practice as a lawyer in the “matter in 

controversy.” In accord with 28 U.S.C. § 455(e), disqualification in such 

circumstances may not be waived. Hope Creek, ALAB-759, 19 NRC at 21. 

In applying the disqualification standards under 28 U.S.C. § 455(b)(2), the Appeal 

Board concluded that, in the instance of an adjudicator versed in a scientific 

discipline rather than in the law, disqualification is required if he previously provided 

technical services to one of the parties in connection with the “matter in 

controversy.” Hope Creek, ALAB-759, 19 NRC at 23. To determine whether the 

construction permit proceeding and the operating license proceeding for the same 

facility should be deemed the same “matter” for 28 U.S.C. § 455(b)(2) purposes, the 

Appeal Board adopted the “wholly unrelated” test, and found the two to be 

sufficiently related that the Licensing Board judge should have recused himself. 

Id. at 24-25. 

An administrative trier of fact is subject to disqualification for the appearance of bias 

or prejudgment of the factual issues as well as for actual bias or prejudgment. 

Houston Lighting & Power Co. (South Texas Project, Units 1 & 2), ALAB-672, 

15 NRC 677, 680 (1982), rev’d on other grounds, CLI-82-9, 15 NRC 1363, 

1364-1365 (1982); Three Mile Island, CLI-85-5, 21 NRC at 568; Hydro Res., Inc., 

CLI-98-9, 47 NRC at 326; Hydro Res., Inc. (2929 Coors Rd., Suite 101, 

Albuquerque, N.M. 87120), LBP-98-11, 47 NRC 302, 330-31 (1998). 

Disqualifying bias or prejudice of a trial judge must generally stem from an 

extrajudicial source, even under the objective standard for recusal, which requires a 

judge to disqualify himself in any proceeding in which his impartiality might 

reasonably be questioned. Preliminary assessments, made on the record, during 

the course of an adjudicatory proceeding, based solely upon application of the 

decisionmaker’s judgment to material properly before him in the proceeding, do not 

compel disqualification as a matter of law. South Texas, CLI-82-9, 15 NRC 

at 1364-1365, citing United States v. Grinnell Corp., 384 U.S. 563, 583 (1966); 

Commonwealth Edison Co. (La Salle County Nuclear Power Station, Units 1 & 2), 

CLI-73-8, 6 AEC 169, 170 (1973); Int’l Bus. Machs. Corp., 618 F.2d 923, 929 

(2d Cir. 1980); Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), ALAB-748, 

18 NRC 1184, 1187 (1983). See also Pub. Serv. Co. of N.H. (Seabrook Station, 

Units 1 & 2), ALAB-749, 18 NRC 1195, 1197 (1983); Pub. Serv. Co. of N.H.

(Seabrook Station, Units 1 & 2), ALAB-751, 18 NRC 1313, 1315 (1983), reconsid. 

denied, ALAB-757, 18 NRC 1356 (1983); Philadelphia Elec. Co. (Limerick 

Generating Station, Units 1 & 2), ALAB-819, 22 NRC 681, 721 (1985). 

HEARINGS 38 JUNE 2011
The fact that a Board member’s actions are erroneous, superfluous, or inappropriate 

does not, without more, demonstrate an extrajudicial bias. Matters are extrajudicial 

when they do not relate to a Board member’s official duties in a case. Rulings, 

conduct, or remarks of a Board member in response to matters which arise in 

administrative proceedings are not extrajudicial. Seabrook, ALAB-749, 

18 NRC at 1200. See also Seabrook, ALAB-748, 18 NRC at 1188; Shoreham, 

LBP-88-29, 28 NRC at 640-41, aff’d, ALAB-907, 28 NRC 620, 624 (1988). 

A judge will not be disqualified on the basis of occasional use of strong language 

toward a party or in expressing views on matters arising from the proceeding, or 

actions which may be controversial or may provoke strong reactions by parties in 

the proceeding. Three Mile Island, CLI-85-5, 21 NRC at 569; Limerick, ALAB-819, 

22 NRC at 721; Shoreham, LBP-88-29, 28 NRC at 641. See also, Entergy Nuclear 

Vermont Yankee, LLC and Energy Nuclear Operations, Inc. (Vermont Yankee 

Nuclear Power Station), CLI-10-17, 71 NRC __ (July 8, 2010) (slip op. at 58-59).

A letter from a Board judge expressing his opinions to a judge presiding over a 

related criminal case did not reflect extrajudicial bias, since the contents of the letter 

were based solely on the record developed during the NRC proceeding. The factor 

to consider is the source of the information, not the forum in which it is 

communicated. Three Mile Island, CLI-85-5, 21 NRC at 569-70. Such a letter does 

not violate Canon 3A(6) of the Code of Judicial Conduct, which prohibits a judge 

from commenting publicly about a pending or impending proceeding in any court. 

Canon 3A(6) applies to general public comment, not the transmittal of specific 

information by a judge to another court. Id. at 571. Such a letter also does not 

violate Canon 2B of the Code of Judicial Conduct, which prohibits a judge from 

lending the prestige of his office to advance the private interests of others, and from 

voluntarily testifying as a character witness. Canon 2B seeks to prevent a judge’s 

testimony from having an undue influence in a trial. Id. at 570. 

Membership in a national professional organization does not perforce disqualify a 

person from adjudicating a matter to which a local chapter of the organization is a 

party. Sheffield, ALAB-494, 8 NRC at 302. 

3.1.4.3 Improperly Influencing an Adjudicatory Board Decision 

Where a Licensing Board has been subjected to an attempt to improperly influence 

the content or timing of its decision, the Board is duty-bound to call attention to that 

fact promptly on its own initiative. On the other hand, a Licensing Board which has 

not been subjected to attempts at improper influence need not investigate 

allegations that such attempts were contemplated or promised. Pub. Serv. Co. of 

N.H. (Seabrook Station, Units 1 & 2), ALAB-422, 6 NRC 33, 102 (1977). 

3.1.5 Resignation of a Licensing Board Member 

The Administrative Procedure Act requirement that the official who presides at the 

reception of evidence must make the recommendation or initial decision 

(5 U.S.C. § 554(d)) includes an exception for the circumstance in which that official 

becomes “unavailable to the agency.” When a Licensing Board member resigns from 

the Commission, he becomes “unavailable.” 10 C.F.R. § 2.313(c) (formerly § 2.704(d)); 

Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), ALAB-422, 6 NRC 33, 101 

JUNE 2011 HEARINGS 39
(1977). Resignation of a Board member during a proceeding is not, of itself, grounds 

for declaring a mistrial and starting the proceedings anew. Seabrook, ALAB-422, 

6 NRC at 101. Seabrook was affirmed generally and on the point cited herein in New 

England Coalition on Nuclear Pollution v. NRC, 582 F.2d 87 (1st Cir. 1978). 

“Unavailability” of a Licensing Board member is dealt with generally in 

10 C.F.R. § 2.313(c) (formerly § 2.704(d)). 

3.2 Export Licensing Hearings

3.2.1 Scope of Export Licensing Hearings 

The export licensing process is an inappropriate forum to consider generic safety 

questions posed by nuclear power plants. Under the AEA, as amended by the Nuclear 

Non-Proliferation Act of 1978, the Commission, in making its export licensing 

determinations, will consider non-proliferation and safeguards concerns, but not foreign 

health and safety matters. Westinghouse Elec. Corp. (Export to South Korea), 

CLI-80-30, 12 NRC 253, 260-61 (1980); Gen. Elec. Co. (Exports to Taiwan), CLI-81-2, 

13 NRC 67, 71 (1981). 

The focus of Section 134 of the AEA is on discouraging the continued use of highenriched uranium as reactor fuel, not its per se prohibition. Transnuclear, Inc. (Export 

of 93.15% Enriched Uranium), CLI-94-1, 39 NRC 1 (1994); Transnuclear, Inc. (Export 

of 93.3% Enriched Uranium), CLI-98-10, 47 NRC 333 (1998). 

3.2.2 Standing to Intervene in Export License Hearings 

The Commission has applied judicial standing tests to its export licensing proceedings. 

Transnuclear, Inc., (Export of Enriched Uranium), CLI-99-15, 49 NRC 366, 367 (1999). 

An organization’s institutional interest in providing information to the public and the 

generalized interest of its membership in minimizing danger from proliferation are 

insufficient to confer standing as a matter of right under Section 189.a. of the AEA. 

Transnuclear, CLI-99-15, 49 NRC at 367. See U.S. Dep’t of Energy (Plutonium Export 

License), CLI-04-17, 59 NRC 357, 364 (2004). 

3.2.3 Hearing Requests 

A discretionary hearing is not warranted where such a hearing would impose 

unnecessary burdens on participants and would not provide the Commission with 

additional information needed to make its statutory determinations under the AEA. 

Transnuclear, Inc., (Export of Enriched Uranium), CLI-99-15, 49 NRC 366, 368 (1999). 

3.3 Hearing Scheduling Matters

3.3.1 Scheduling of Hearings 

As a general rule, scheduling is a matter of Licensing Board discretion which will not be 

interfered with absent a “truly exceptional situation.” Pub. Serv. Co. of N.H. (Seabrook 

Station, Units 1 & 2), ALAB-295, 2 NRC 668 (1975); Pub. Serv. Co. of N.H. (Seabrook 

Station, Units 1 & 2), ALAB-293, 2 NRC 660 (1975). 

HEARINGS 40 JUNE 2011
An ASLB has general authority to regulate the course of a licensing proceeding and 

may schedule hearings on specific issues pending related developments on other 

issues. Pub. Serv. Co. of Ind. (Marble Hill Nuclear Generating Station, Units 1 & 2), 

ALAB-371, 5 NRC 409 (1977). In deciding whether early hearings should be held on 

specific issues, the Board should consider: 

(1) the likelihood that early findings would retain their validity; 

(2) the advantage to the public interest and to the litigants in having early, 

though possibly inconclusive, resolution of certain issues; 

(3) the extent to which early hearings on certain issues might occasion 

prejudice to one or more litigants, particularly in the event that such 

issues were later reopened because of supervening developments. 

Potomac Elec. Power Co. (Douglas Point Nuclear Generating Station, Units 1 & 2), 

ALAB-277, 1 NRC 539 (1975); accord Allied-Gen. Nuclear Servs. (Barnwell Nuclear 

Fuel Plant Separation Facility), ALAB-296, 2 NRC 671 (1975). 

The Board may proceed to early hearings on the merits of safety issues – that is, 

before the NRC Staff has issued a final safety evaluation – but they “may not 

commence” hearings on environmental issues before the NRC Staff has issued a final 

EIS. Southern Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), 

CLI-07-17, 65 NRC 392, 394 (2007); see also Duke Energy Corp. (McGuire Nuclear 

Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-01-20, 54 NRC 211, 

214 (2001). But see La. Energy Servs., L.P. (National Enrichment Facility), CLI-04-03, 

59 NRC 10, 17 (2004) (where all parties have acquiesced in proceeding to hearings 

based on a draft EIS, and pending legislation would have required a decision on new 

enrichment facility applications within two (2) years of receipt of the application, the 

Commission can expedite proceedings by holding hearings on the merit of 

environmental issues before a final EIS has been issued). 

It is the Board’s duty to set and adhere to reasonable schedules for the various steps in 

the hearing process, with the expectation that the parties will comply with the 

scheduling orders set forth in the proceeding and that the Board will take appropriate 

action against parties who fail to comply. Wash. Pub. Power Supply Sys. (Washington 

Nuclear Project No. 1), LBP-00-18, 52 NRC 9, 13 (2000), citing Statements of Policy 

on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 21-22 (1998). 

The ASLB interpreted agency jurisprudence as reflecting a general reluctance to base 

the dismissal of contentions on pleading defects or procedural defects, including 

defects of timing. At the same time, the ASLB judged that the Commission expects its 

presiding officers to set schedules, expects that parties will adhere to those schedules, 

and expects that presiding officers will enforce compliance with those schedules. 

Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-00-28, 

52 NRC 226 (2000), citing Sequoia Fuels Corp. (Gore, Oklahoma Site 

Decontamination and Decommissioning Funding), LBP-94-8, 39 NRC 116, 120 (1994); 

Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), CLI-96-1, 43 NRC 1, 5 

(1996); Statement of Policy, CLI-98-12, 48 NRC at 21. 

A Licensing Board may not schedule a hearing for a time when it is known that a 

technical member will be unavailable for more than one half of one day unless there is 

JUNE 2011 HEARINGS 41
no reasonable alternative to such scheduling. Commonwealth Edison Co. (Zion 

Station, Units 1 & 2), ALAB-222, 8 AEC 229, 238 (1974). 

Generally speaking, Licensing Boards determine scheduling matters on the basis of 

representations of counsel about projected completion dates, availability of necessary 

information, and adequate opportunities for a fair and thorough hearing. The Board 

would take a harder look at an applicant’s projected completion date if it could only be 

met by a greatly accelerated schedule, with minimal opportunities for discovery and the 

exercise of other procedural rights. Duke Power Co. (Catawba Nuclear Station, Units 1 

& 2), LBP-83-8A, 17 NRC 282, 286-87 (1983). 

Where the Licensing Board finds that the Staff cannot demonstrate a reasonable cause 

for its delay in submitting environmental statements, the Board may issue a ruling 

noting the unjustified failure to meet a publication schedule and then proceed to hear 

other matters or suspend proceedings until the Staff files the necessary documents. 

The Board, sua sponte or on motion of one of the parties, may refer the ruling to the 

Appeal Board. If the Appeal Board affirms, it would certify the matter to the 

Commission. Offshore Power Sys. (Floating Nuclear Power Plants), ALAB-489, 

8 NRC 194, 207 (1978). 

While a hearing is required on a construction permit application, operating license 

hearings can only be triggered by petitions to intervene, or a Commission finding that 

such a hearing would be in the public interest. Carolina Power & Light Co. (Shearon 

Harris Nuclear Power Plant, Units 1, 2, 3 & 4), ALAB-577, 11 NRC 18, 26 (1980), 

modified, CLI-80-12, 11 NRC 514 (1980). Licensing Boards have no independent 

authority to initiate adjudicatory proceedings without prior action of some other 

component of the Commission. 10 C.F.R. 2.104(a) does not provide authority to a 

Licensing Board considering a construction permit application to order a hearing on 

the yet-to-be-filed operating license application. Shearon Harris, ALAB-577, 

11 NRC at 27-28. Section 2.104(a) of the Commission’s Rules of Practice 

contemplates determination of a need for a hearing in the public interest on an 

operating license only after application for such a license is made. Id.; Carolina Power 

& Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3, & 4), ALAB-581, 

11 NRC 233 (1980), modified, CLI-80-12, 11 NRC 514 (1980). 

A Licensing Board’s denial of a request for a schedule change will be overturned only 

on a finding that the Board abused its discretion by setting a schedule that deprives a 

party of its right to procedural due process. Wis. Elec. Power Co. (Point Beach 

Nuclear Plant, Unit 1), ALAB-719, 17 NRC 387, 391 (1983), citing Wis. Elec. Power 

Co. (Point Beach Nuclear Plant, Unit 1), ALAB-696, 16 NRC 1245, 1260 (1982), 

quoting Pub. Serv. Co. of Ind. (Marble Hill Nuclear Generating Station, Units 1 & 2), 

ALAB-459, 7 NRC 179, 188 (1978); Cleveland Elec. Illuminating Co. (Perry Nuclear 

Power Plant, Units 1 & 2), ALAB-841, 24 NRC 64, 95 (1986). 

The bifurcation of proceedings to address environmental and safety issues (with 

resolution of environmental matters potentially occurring months later, after public 

meetings) is a normal accouterment of any hearing process involving NEPA, and 

license applicants at the NRC assume the risk of imposition of these additional 

burdens. Pa’ina Hawaii, LLC, CLI-06-18, 64 NRC 1, 5 (2006). 

HEARINGS 42 JUNE 2011
3.3.1.1 Public Interest Requirements re Hearing Schedule 

In matters of scheduling, the paramount consideration is the public interest. The 

public interest is usually served by as rapid a decision as is possible, consistent with 

everyone’s opportunity to be heard. Potomac Elec. Power Co. (Douglas Point 

Nuclear Generating Station, Units 1 & 2), ALAB-277, 1 NRC 539 (1975). 

To fulfill its obligation under the Administrative Procedure Act to decide cases within 

a reasonable time, the Commission established expedited procedures for the 

conduct of the 1988 Shoreham emergency planning exercise proceeding in order to 

minimize the delays resulting from the Commission’s usual procedures, while still 

preserving the rights of the parties. Long Island Lighting Co. (Shoreham Nuclear 

Power Station, Unit 1), CLI-88-9, 28 NRC 567, 569-70 (1988), citing Union of 

Concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir. 1984). 

Findings under 10 C.F.R. § 2.104(a) on a need for a public hearing on an 

application for an operating license in the public interest cannot be made until after 

such application is filed. Such finding must be based on the application and all 

information then available. While the Commission can determine that a hearing on 

an operating license is needed in the public interest, a Licensing Board could not. 

Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 & 4), 

ALAB-577, 11 NRC 18, 26-28 (1980), modified, CLI-80-12, 11 NRC 514 (1980). 

3.3.1.2 Convenience of Litigants re Hearing Schedule 

Although the convenience of litigants is entitled to recognition, it cannot be 

dispositive on questions of scheduling. Allied Gen. Nuclear Servs. (Barnwell 

Nuclear Fuel Plant Separation Facility), ALAB-296, 2 NRC 671, 684-85 (1975); 

Potomac Elec. Power Co. (Douglas Point Nuclear Generating Station, Units 1 & 2), 

ALAB-277, 1 NRC 539 (1975). 

A licensee’s indecision should not dictate the scope and timing of the hearing 

process. It is sensible to decide the most time-sensitive issues first, but it is 

unacceptable to simply decline to reach other questions about an already-issued 

license. Hydro Res., Inc. (P.O. Box 15910, Rio Rancho, N.M. 87174), CLI-01-4, 

53 NRC 31, 39 (2001). 

Nevertheless, a Board’s action in keeping to its schedule, despite intervenors’ 

assertions that they were unable to prepare for cross-examination or to attend the 

hearing because of a need to prepare briefs in a related matter in the U.S. Court of 

Appeals for the Seventh Circuit, was held to be an error requiring reopening of the 

hearing. Northern Ind. Pub. Serv. Co. (Bailly Generating Station, Nuclear-1), 

ALAB-249, 8 AEC 980 (1974). 

3.3.1.3 Adjourned Hearings 

(RESERVED) 

JUNE 2011 HEARINGS 43
3.3.2 Postponement of Hearings 

3.3.2.1 Factors Considered in Hearing Postponement 

Where there is no immediate need for the license sought, a Board’s decision as to 

whether to go forward with hearings or postpone them should be guided by three 

factors: 

 (1) the likelihood that findings would retain their validity; 

 (2) the advantage to the public and to litigants in having early, though 

 possibly inconclusive, resolution; 

 (3) the possible prejudice arising from an early hearing. 

Potomac Elec. Power Co. (Douglas Point Nuclear Generating Station, Units 1 & 2), 

ALAB-277, 1 NRC 539 (1975). 

“The Commission’s longstanding practice has been to limit orders delaying 

proceedings to the duration and scope necessary to promote the Commission’s dual 

goals of public safety and timely adjudication.” Private Fuel Storage, L.L.C.

(Independent Spent Fuel Installation), CLI-01-26, 54 NRC 376, 381 (2001). See 

Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear 

Station, Units 1 & 2), CLI-01-27, 54 NRC 385, 389 (2001). 

The fact that a party has failed to retain counsel in a timely manner is not grounds 

for seeking a delay in the commencement of hearings. Offshore Power Sys.

(Manufacturing License for Floating Nuclear Power Plants), LBP-75-67, 2 NRC 813, 

816 (1975). 

A Licensing Board has considered the following factors in evaluating an NRC Staff 

motion to stay the commencement of a show cause proceeding involving the Staff’s 

issuance of an immediately effective license suspension order: (1) the length of the 

requested stay; (2) the reasons for requesting the stay; (3) whether the licensee has 

persistently asserted its rights to a prompt hearing and to other procedural means to 

resolve the matter; and (4) the resulting prejudice to the licensee’s interests if the 

stay is granted. Finlay Testing Laboratories, Inc., LBP-88-1A, 27 NRC 19, 23-26 

(1988), citing Barker v. Wingo, 407 U.S. 514 (1972). 

When Staff action may obviate the need for a Commission decision or the parties 

before the Commission may resolve their dispute in another forum, the Commission 

may hold a hearing request in abeyance. CBS Corp. (Waltz Mill Facility), CLI-07-15, 

65 NRC 221, 235 (2007). 

The Commission is reluctant to suspend pending adjudications in order to await 

outcome of other proceedings. McGuire, CLI-01-27, 54 NRC at 390. For example, 

the Commission did not hold adjudications in abeyance pending the results of an 

ongoing reexamination of its rules in the aftermath of the Three Mile Island Nuclear 

Station accident. Id. at 390. See Interim Statement of Policy and Procedure, 44 

Fed. Reg. 58,559 (Oct. 10, 1979). However, situations may arise where efficiencies 

might be gained from suspending an adjudication due to the presence of 

overlapping issues in multiple NRC proceedings. Atlas Corp. (Moab, Utah Site), 

LBP-00-4, 51 NRC 53 (2000). 

HEARINGS 44 JUNE 2011
The mere possibility that proceedings will be mooted by another agency’s decision 

is not a sufficient reason to postpone reviewing the application. Private Fuel 

Storage, CLI-01-26, 54 NRC at 383. “However, the Commission will postpone 

adjudicatory matters in the unusual cases where moving forward would clearly 

amount to a waste of resources.” Id. at 383. “The Commission disfavors 

suspending proceedings where the relief is not narrowly tailored to the goal of 

promoting adjudicatory efficiency.” Id. “It has not been [the Commission’s] general 

policy to place proceedings on hold simply because one or more other regulatory 

agencies might ultimately deny a necessary permit or approval. Instead, absent 

extraordinary reasons for delay, the NRC acts as promptly as practicable on all 

applications it receives.” Hydro Res., Inc. (P.O. Box 15910, Rio Rancho, N.M. 

87174), CLI-04-14, 59 NRC 250, 254 (2004). 

A motion to suspend the proceeding pending resolution in state court of a state 

agency’s determination concerning site suitability is appropriate in a situation where 

a particular course of action by an applicant is being challenged under state law. 

Whether the particular course of action is a violation of state law is a question for 

state authorities to determine, not a question for which a Licensing Board is an 

appropriate arbiter. Northern States Power Co. (Independent Spent Fuel Storage 

Installation), LBP-96-26, 44 NRC 406, 409 (1996). 

The conclusion of a licensing proceeding need not await the outcome of a final 

rulemaking petition “as every license the Commission issues is subject to the 

possibility of additional requirements.” Pac. Gas & Elec. Co. (Diablo Canyon Power 

Plant Independent Spent Fuel Storage Installation), CLI-03-4, 57 NRC 273, 277 

(2003) (emphasis in original). 

3.3.2.2 Effect of Plant Deferral on Hearing Postponement 

The deferral of a plant which has been noticed for hearing does not necessarily 

mean that hearings should be postponed. At the same time, a Licensing Board 

does have authority to adjust discovery and hearing schedules in response to such 

deferral. Wis. Elec. Power Co. (Koshkonong Nuclear Power Plant, Units 1 & 2), 

CLI-75-2, 1 NRC 39 (1975). The adjudicatory early site review procedures set forth 

in 10 C.F.R. Part 2 provide a means by which separate, early hearings may be held 

on site suitability matters despite the fact that the proposed plant and related 

construction permit proceedings have been deferred. 

3.3.2.3 Sudden Absence of ASLB Member at Hearing 

When there is a sudden absence of a technical member, consideration of a hearing 

postponement must be made, and if time permits, the parties’ views must be 

solicited before a postponement decision is rendered. Commonwealth Edison Co.

(Zion Station, Units 1 & 2), ALAB-222, 8 AEC 229 (1974). 

In Commonwealth Edison Co. (Zion Station, Units 1 & 2), CLI-74-35, 8 AEC 374 

(1974), the Commission reviewed ALAB-222. While the Commission was not in full 

agreement with the Appeal Board’s setting of inflexible guidelines for invoking the 

quorum rule, it agreed in principle with the Appeal Board’s view that all three Board 

members must participate to the maximum extent possible in evidentiary hearings. 

As such, it appears that the above guidance from ALAB-222 remains in effect. 

JUNE 2011 HEARINGS 45
3.3.2.4 Time Extensions for Case Preparation Before Hearing 

In view of the disparity between the Staff and applicant, on the one hand, and the 

intervenors, on the other, with regard to the time available for review and case 

preparation, the Appeal Panel has been solicitous of intervenors’ desires for 

additional time for case preparation. See, e.g., Southern Cal. Edison Co. (San 

Onofre Nuclear Generating Station, Units 2 & 3), ALAB-212, 7 AEC 986, 992-93 

(1974). At the same time, a party’s failure to have as yet retained counsel does not 

provide grounds for seeking a delay in proceedings. Offshore Power Sys.

(Manufacturing License for Floating Nuclear Power Plants), LBP-75-67, 2 NRC 813 

(1975). Moreover, a party must make a timely request for additional time to prepare 

its case; otherwise, it may waive its right to complain. Pub. Serv. Co. of Ind. (Marble 

Hill Nuclear Generating Station, Units 1 & 2), ALAB-459, 7 NRC 179, 188-89 (1978). 

More recently, too, both the Commission and the Appeal Board have made it clear 

that the fact that a party may possess fewer resources than others to devote to a 

proceeding does not relieve that party of its hearing obligations. See Statement of 

Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 454 (1981); 

Wis. Elec. Power Co. (Point Beach Nuclear Plant, Unit 1), ALAB-696, 16 NRC 1245, 

1261 n.29 (1982). 

In St. Lucie, the Appeal Board granted the Staff’s request for an extension of a 

deadline for filing written testimony, but called the matter to the attention of the 

Commission, which has supervisory authority over the Staff. In granting the 

extension, made as a result of the Staff’s inability to meet the earlier deadline due to 

the assignment of the Staff to Three Mile Island-related matters, the Board rejected 

the intervenor’s suggestion that it hold a hearing to determine the reasons for, and 

reasonableness of, the extension request. Fla. Power & Light Co. (St. Lucie 

Nuclear Power Plant, Unit 2), ALAB-553, 10 NRC 12 (1979). 

Where time extensions have been granted, the original time period is not material to 

a determination as to whether due process has been observed. Va. Elec. & Power 

Co. (North Anna Nuclear Power Station, Units 1 & 2), ALAB-584, 11 NRC 451, 467 

(1980). 

In considering motions for extensions of time, the Commission’s construction of 

“good cause” to require a showing of “unavoidable and extreme circumstances” 

constitutes a reasonable means of avoiding undue delay in a license renewal 

proceeding, and for assuring that the proceeding is adjudicated promptly, consistent 

with the goals set forth in the Commission’s policy statements and the 

Administrative Procedure Act. Baltimore Gas & Elec. Co. (Calvert Cliffs Nuclear 

Power Plant, Units 1 & 2), CLI-98-25, 48 NRC 325, 342 (1998). 

3.3.3 Scheduling Disagreements Among Parties 

Parties must lodge promptly any objections they may have to the scheduling of the 

prehearing phase of a proceeding. Late requests for changes in scheduling will not be 

countenanced absent extraordinary unexpected circumstances. Consol. Edison Co. of 

N.Y. (Indian Point Nuclear Generating Units 1, 2 & 3), ALAB-377, 5 NRC 430 (1977). 

HEARINGS 46 JUNE 2011
3.3.4 Appeals of Hearing Date Rulings 

As a general rule, scheduling is a matter of Licensing Board discretion. Scheduling 

decisions will not be reviewed absent a “truly exceptional situation” which warrants 

interlocutory consideration. Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), 

ALAB-295, 2 NRC 668 (1975); Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), 

ALAB-293, 2 NRC 660 (1975). Since the responsibility for conduct of the hearing rests 

with the presiding officer pursuant to 5 U.S.C. § 556(c) and 10 C.F.R. § 2.319 (formerly 

§ 2.718), a Licensing Board’s scheduling decision will not be examined except where 

there is a claim that such decision constituted an abuse of discretion and amounted to 

a denial of procedural due process. Pub. Serv. Co. of Ind. (Marble Hill Nuclear 

Generating Station, Units 1 & 2), ALAB-459, 7 NRC 179, 188 (1978); Wis. Elec. Power 

Co. (Point Beach Nuclear Plant, Unit 1), ALAB-696, 16 NRC 1245, 1260 (1982); 

Houston Lighting & Power Co. (South Texas Project, Units 1 & 2), ALAB-799, 

21 NRC 360, 379 (1985); Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), 

ALAB-813, 22 NRC 59, 74 & n.68, 83 (1985). 

With regard to claims of insufficient time to prepare for a hearing, even if a party is 

correct in its assertion that the Staff received an initial time advantage in preparing 

testimony as a result of scheduling, it must make a reasonable effort to have the 

procedural error corrected (by requesting additional time to respond) and not wait to 

use the error as grounds for appeal if the party disagrees with the decision on the 

merits. A party is entitled to a fair hearing, not a perfect one. Marble Hill, ALAB-459, 

7 NRC at 188-89. 

Although, absent special circumstances, Licensing Board scheduling determinations 

were not reviewed absent a claim of deprivation of due process, the former Appeal 

Board would, on occasion, review a Licensing Board scheduling matter when that 

scheduling appears to be based on the Licensing Board’s misapprehension of an 

Appeal Board directive. See, e.g., Consumers Power Co. (Midland Plant, Units 1 & 2), 

ALAB-468, 7 NRC 464, 468 (1978). 

3.3.5 Location of Hearing 

(RESERVED) 

3.3.5.1 Public Interest Requirements re Hearing Location 

(RESERVED) 

3.3.5.2 Convenience of Litigants Affecting Hearing Location 

As a matter of policy, most evidentiary hearings in NRC proceedings are conducted 

in the general vicinity of the site of the facility involved. In generic matters, however, 

when the hearing encompasses distinct, geographically separated facilities and no 

relationship exists between the highly technical questions to be heard and the 

particular features of those facilities or their sites, the governing consideration in 

determining the place of hearing should be the convenience of the participants in 

the hearing. Philadelphia Elec. Co. (Peach Bottom Atomic Power Station, Units 2 

& 3), ALAB-566, 10 NRC 527, 530-31 (1979). 

JUNE 2011 HEARINGS 47
3.3.6 Consolidation of Hearings and of Parties 

Consolidation of parties is covered generally by 10 C.F.R. § 2.316 (formerly § 2.715a), 

and consolidation of hearings is covered generally by 10 C.F.R. § 2.317 (formerly 

§ 2.716). 

A Board, on its own initiative, may consolidate parties who share substantially the 

same interest and who raise substantially the same questions, except when such 

action would prejudice one of the intervenors. Philadelphia Elec. Co. (Limerick 

Generating Station, Units 1 & 2), ALAB-836, 23 NRC 479, 501 (1986), citing

10 C.F.R. § 2.316 (formerly § 2.715a) and Statement of Policy on Conduct of Licensing 

Proceedings, CLI-81-8, 13 NRC 452, 455 (1981). See also La. Energy Servs., L.P.

(National Enrichment Facility), LBP-04-14, 60 NRC 40, 71 (2004) (stating that presiding 

officers possess authority under 10 C.F.R. § 2.319 to eliminate duplicative or 

cumulative evidence and arguments by consolidating parties or designating lead 

parties to represent interests held in common by multiple groups). 

Consolidation is primarily discretionary with the Boards involved. Taking into account 

the familiarity of the Licensing Boards with the issues most likely to bear on a 

consolidation motion, the Commission will interpose its judgment in consolidation 

cases only in the most unusual circumstances. Portland Gen. Elec. Co. (Pebble 

Springs Nuclear Plant, Units 1 & 2), CLI-76-26, 4 NRC 608 (1976). See Safety Light 

Corp. (Bloomsburg Site Decontamination), CLI-92-13, 36 NRC 79, 89 (1992). 

Under 10 C.F.R. § 2.317 (formerly § 2.716), consolidation is permitted if found to be 

conducive to the proper dispatch of the Board’s business and to the ends of justice. 

Dairyland Power Coop. (La Crosse Boiling Water Reactor, Operating License and 

Show Cause), LBP-81-31, 14 NRC 375, 377 (1981). See Safety Light Corp.

(Bloomsburg Site Decontamination), LBP-92-13A, 35 NRC 205, 205-06 (1992) (a 

10 C.F.R. Part 2, Subpart G proceeding and a 10 C.F.R. Part 2, Subpart L proceeding 

were consolidated as a Subpart G proceeding), explained, LBP-92-16A, 36 NRC 18, 

19-22 (1992). 

A Board need not consolidate related hearings where parties are not identical and 

scheduling differences are extensive. That some factual or legal questions may 

overlap the proceedings is fortuitous, not legally controlling. Molycorp, Inc.

(Washington, Pennsylvania, Temporary Waste Storage & Site Decommissioning Plan), 

LBP-00-10, 51 NRC 163, 172 (2000). 

Nothing forces the Commission or the parties to continue down the “somewhat tortured 

path” created by addressing a multisite license in a single proceeding, especially if the 

applicant only intends to use one site. Hydro Res., Inc., CLI-00-8, 51 NRC 227, 242-43 

(2000). 

Pursuant to § 2.319, the Board may hold a challenge to a license amendment in 

abeyance when the amendment is the first of three that, once all are submitted and 

approved, represent a new licensee activity. Nuclear Fuel Servs., Inc., LBP-03-1, 

57 NRC 9, 12-15 (2003). 

The Commission may, in its own discretion, order the consolidation of two or more 

export licensing proceedings, and may utilize 10 C.F.R. § 2.317 (formerly § 2.716) as 

HEARINGS 48 JUNE 2011
guidance for deciding whether or not to take such action. Edlow Int’l Co. (Agent for the 

Government of India on Application to Export Special Nuclear Materials), CLI-77-16, 

5 NRC 1327, 1328-29 (1977). Note, however, that persons who are not parties to 

either of two adjudicatory proceedings have no standing to have those proceedings 

consolidated under § 2.317 (formerly Section 2.716). Id. at 1328. Where proceedings 

on two separate applications are consolidated, the Commission may explicitly reserve 

the right to act upon the applications at different times. Edlow Int’l Co. (Agent for the 

Government of India on Application to Export Special Nuclear Materials), CLI-78-4, 

7 NRC 311, 312 (1978). See Braunkohle Transp., USA (Import of South African 

Uranium Ore Concentrate), CLI-87-6, 25 NRC 891, 894 (1987).

3.3.7 In Camera Hearings 

Procedures for in camera hearings are discussed in Pac. Gas & Elec. Co. (Diablo 

Canyon Nuclear Power Plant, Units 1 & 2), ALAB-580, 11 NRC 227 (1980). 

Where a party to a hearing objects to the disclosure of information and makes out a 

prima facie case that the material is proprietary in nature, it is proper for an 

adjudicatory board to issue a protective order and conduct an in camera session. If, 

upon consideration, the Board determined that the material was not proprietary, it 

would order the material released for the public record. Metro. Edison Co. (Three Mile 

Island Nuclear Station, Unit 1), ALAB-807, 21 NRC 1195, 1214-15 (1985). See also

Commonwealth Edison Co. (Zion Station, Units 1 & 2), ALAB-196, 7 AEC 457, 469 

(1974). 

No reason exists for an in camera hearing on security grounds where there is no 

showing of some incremental gain in security from keeping the information secret. 

Duke Power Co. (Amendment to Materials License SNM-1773, Transportation of Spent 

Fuel from Oconee Nuclear Station for Storage at McGuire Nuclear Station), CLI-80-3, 

11 NRC 185, 186 (1980). 

Because the party that seeks disclosure of allegedly proprietary information has the 

right to conduct cross-examination in camera, no prejudice results from an adjudicatory 

Board’s use of this procedure. Three Mile Island, ALAB-807, 21 NRC at 1215. 

Following the issuance of a protective order enabling an intervenor to obtain useful 

information, a Board can defer ruling on objections concerning the public’s right to 

know until after the merits of the case are considered; if an intervenor has difficulties 

due to failure to participate in in camera sessions, these cannot affect the Board’s 

ruling on the merits. Wis. Elec. Power Co. (Point Beach Nuclear Plant, Units 1 & 2), 

LBP-81-55, 14 NRC 1017, 1025 (1981). 

3.4 Issues for Hearing

A Licensing Board does not have the power to explore matters beyond those which are 

embraced by the Notice of Hearing for the particular proceeding. This is a holding of 

general applicability. Portland Gen. Elec. Co. (Trojan Nuclear Plant), ALAB-534, 

9 NRC 287, 289-90 n.6 (1979); Pub. Serv. Co. of Ind. (Marble Hill Nuclear Generating 

Station, Units 1 & 2), ALAB-316, 3 NRC 167, 170-71 (1976). See also Northern Ind. Pub. 

Serv. Co. (Bailly Generating Station, Nuclear-1), ALAB-619, 12 NRC 558, 565 (1980); 

Commonwealth Edison Co. (Zion Station, Units 1 & 2), ALAB-616, 12 NRC 419, 426 

JUNE 2011 HEARINGS 49
(1980); Metro. Edison Co. (Three Mile Island Nuclear Station, Unit 1), LBP-83-76, 

18 NRC 1266, 1269, 1286 (1983). 

The judgment of a Licensing Board with regard to what is or is not in controversy in a 

proceeding being conducted by it is entitled to great respect. Northern States Power Co.

(Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-419, 6 NRC 3, 6 (1977). 

A genuine scientific disagreement on a central decisional issue is the type of matter that 

should ordinarily be raised for adversarial exploration and eventual resolution in the 

adjudicatory context. Metro. Edison Co. (Three Mile Island Nuclear Station, Unit 1), 

ALAB-715, 17 NRC 102, 105 (1983). See Va. Elec. & Power Co. (North Anna Power 

Station, Units 1 & 2), CLI-76-22, 4 NRC 480, 491 (1976), aff’d sub nom. Va. Elec. & 

Power Co. v. NRC, 571 F.2d 1289 (4th Cir. 1978); Consumers Power Co. (Midland Plant, 

Units 1 & 2), ALAB-691, 16 NRC 897, 912-13 (1982), rev. denied, CLI-83-2, 17 NRC 69 

(1983). 

Subpart C calls for “specificity” in pleadings. Power Auth. of N.Y. (James A. FitzPatrick 

Nuclear Power Plant; Indian Point Nuclear Generating Unit 3), CLI-00-22, 52 NRC 266, 

300 n.23 (2000), citing Northeast Nuclear Energy Co. (Millstone Nuclear Power Station, 

Units 1, 2, & 3), CLI-00-18, 52 NRC 129, 131-32 (2000). However, where critical 

information has been submitted to the NRC under a claim of confidentiality and was not 

available to the petitioners when framing their issues, the Commission has deemed it 

appropriate to defer ruling on the admissibility of an issue until the petitioner has had an 

opportunity to review this information and submit a properly documented issue. 

The scope of a license renewal proceeding will not include issues litigated at the initial 

licensing proceeding absent a material change in circumstance affecting the original 

determination of the issue or some differentiation of other sites from the one already 

litigated. Hydro Res., Inc. (Crownpoint, N.M.), LBP-03-27, 58 NRC 408, 416 (2003). 

An NRC licensing proceeding is not an open forum for discussing the country’s need for 

energy and spent fuel storage. NRC’s regulations provide procedures for qualified 

applicants to obtain licenses for safely operated nuclear facilities. If an applicant believes 

he is qualified to operate a nuclear storage or reprocessing facility, he must comply with 

those prescribed licensing procedures. Private Fuel Storage, L.L.C. (Independent Spent 

Fuel Storage Installation), CLI-04-7, 59 NRC 111, 112 (2004). 

Findings under 10 C.F.R. § 2.104(a) on a need for a public hearing on issues involved in 

an application for an operating license cannot be made until after such application is filed. 

Such finding must be based on the application and information then available. Carolina 

Power & Light Co. (Shearon Harris Nuclear Plant, Units 1, 2, 3 & 4), ALAB-577, 

11 NRC 18 (1980), modified, CLI-80-12, 11 NRC 514 (1980). 

The Commission may entirely eliminate certain issues from operating license 

consideration on the ground that they are suited for examination only at the earlier 

construction permit stage. Short of that, the Commission has considerable discretion to 

provide by rule that only issues that were or could have been raised by a party to the 

construction permit proceeding will not be entertained at the operating license stage 

except upon such a showing as “changed circumstances” or “newly discovered evidence.” 

Commission practice, however, has been to determine the litigability of issues at the 

operating license stage with reference to conventional res judicata and collateral estoppel 

HEARINGS 50 JUNE 2011
principles. Southern Cal. Edison Co. (San Onofre Nuclear Generating Station, Units 2 

& 3), ALAB-717, 17 NRC 346, 354 (1983), citing Southern Cal. Edison Co. (San Onofre 

Nuclear Generating Station, Units 2 & 3), ALAB-673, 15 NRC 688, 696-97 (1982). 

The Commission has accepted the question of whether the applicants’ financial assurance 

arrangement is lawful under C.F.R. § 50.75 as genuine disputes of law and fact 

admissible at a hearing. James A. FitzPatrick, CLI-00-22, 52 NRC at 302. Other issues 

which have been recognized as appropriate in a hearing on a license transfer are whether 

NRC approval of the transfers will deprive the Commission of authority to require the 

applicant to conduct remediation under decommissioning, and whether, under those 

circumstances, the applicant would no longer have access to the decommissioning trust 

for remediation it would need to complete. Id. at 307. 

The Commission has limited the scope of litigation on emergency preparedness exercises 

to a consideration of whether the results of an exercise indicate that emergency plans are 

fundamentally flawed. Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Plant, Units 1 & 2), 

LBP-93-1, 37 NRC 5, 31-33 (1993). Emergency planning implementing procedures – the 

how-to and what-to-do details of the plan – should not become the focus of the 

adjudicatory process. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage 

Installation), LBP-00-35, 52 NRC 364, 406-07 (2000), citing La. Power & Light Co.

(Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076, 1106-07 (1983); 

Curators of the Univ. of Mo., CLI-95-1, 41 NRC 71, 140-42 (1995). New licensees must 

meet all the requirements of 10 C.F.R. § 50.47 and Appendix E to 10 C.F.R. Part 50 

concerning emergency planning and preparedness. For the issue to be admissible at a 

license transfer hearing, the petitioner must allege with supporting facts that the new 

licensee is likely to violate the NRC’s emergency planning rules. James A. FitzPatrick, 

CLI-00-22, 52 NRC at 317. 

The fundamental question in reviewing an intervenor’s challenge to an ISFSI applicant’s 

financing plan is whether it departs from governing regulations, the Commission’s 

controlling order on financial qualifications (CLI-00-13), and sound financial sense. 

Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-04-10, 

61 NRC 131, 139 (2004). 

The issue of management capability to operate a facility is better determined at the time of 

the operating license application, rather than years in advance on the basis of preliminary 

plans. Shearon Harris, ALAB-577, 11 NRC at 31. 

The integrity or character of a licensee’s management personnel bears on the 

Commission’s ability to find reasonable assurance that a facility can be safely operated. 

Lack of either technical competence or character qualifications on the part of a licensee or 

applicant is sufficient grounds for the revocation of a license or the denial of a license 

application. In making determinations about character, the Commission may consider 

evidence bearing upon the licensee’s candor, truthfulness, willingness to abide by 

regulatory requirements, and acceptance of responsibility to protect public health and 

safety. However, not every licensing action throws open an opportunity to engage in an 

inquiry into the “character” of the licensee. There must be some direct and obvious 

relationship between the character issues and the licensing action in dispute. The issue 

of character is a proper matter for inquiry in a license transfer proceeding. Ga. Power Co.

(Vogtle Electric Generating Plant, Units 1 & 2), CLI-93-16, 38 NRC 25 (1993). See also

Piping Specialists, Inc. (Apollo, Pennsylvania Fuel Fabrication Facility), LBP-92-24, 

JUNE 2011 HEARINGS 51
36 NRC 156, 163, n.5 (1992); Commonwealth Edison Co. (Zion Nuclear Power Station, 

Units 1 & 2), CLI-99-4, 49 NRC 185, 189 (1999). 

Since the Appendix I (of 10 C.F.R. Part 50) rule itself does not specify health effects, and 

there is no evidence that the purpose of the Appendix I rulemaking was to determine 

generally health effects from Appendix I releases, it follows that health effects of 

Appendix I releases must be litigable in individual licensing proceedings. Pub. Serv. Co. 

of Okla. (Black Fox Station, Units 1 & 2), CLI-80-31, 12 NRC 264, 276 (1980). See also

Consol. Edison Co. of N.Y. (Indian Point Nuclear Generating Units 2 & 3), LBP-82-105, 16 

NRC 1629, 1641 (1982), citing Black Fox, CLI-80-31, 12 NRC at 264. 

Upon certification, the Commission held that in view of the fact that the Three Mile Island 

Nuclear Station accident resulted in generation of hydrogen gas in excess of hydrogen 

generation design basis assumptions of 10 C.F.R. § 50.44, hydrogen gas control could be 

properly litigated under Part 100. Under Part 100, hydrogen control measures beyond 

those required by 10 C.F.R. § 50.44 would be required if it is determined that there is a 

credible loss-of-coolant accident scenario entailing hydrogen generation, hydrogen 

combustion, containment breach or leaking, and offsite radiation doses in excess of Part 

100 guidelines values. Metro. Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI80-16, 11 NRC 674, 675 (1980). See Ill. Power Co. (Clinton Power Station, Unit 1), LBP82-103, 16 NRC 1603, 1609 (1982), citing Three Mile Island, CLI-80-16, 11 NRC at 675. 

Whether non-NRC permits are required is the responsibility of bodies that issue such 

permits, not the NRC. Thus, the issue of whether or not a party has obtained other 

appropriate permits is not admissible in a Licensing Board hearing. Hydro Res., Inc.

(2929 Coors Rd., Suite 101, Albuquerque, N.M. 87120), CLI-98-16, 48 NRC 119, 120 

(1998). 

It is not a profitable use of adjudicatory time to litigate the probabilistic risk assessment 

(PRA) methodology used on the chance that different methodology would identify a new 

problem or substantially modify existing safety concerns. If it is known that a problem 

exists which would be illustrated by a change in PRA methodology, that problem can be 

litigated directly; there is no need to modify the PRA to consider it. Philadelphia Elec. Co.

(Limerick Generating Station, Units 1 & 2), LBP-83-39, 18 NRC 67, 73 (1983). 

Under 10 C.F.R. § 50.33(f)(2), the sufficiency vel non of the transferee’s supplemental 

funding does not constitute grounds for a hearing; and the parent company guarantee is 

supplemental information and not material to the financial qualifications determination. 

James A. FitzPatrick, CLI-00-22, 52 NRC at 299-300, citing Nuclear Power Corp.

(Vermont Yankee Nuclear Power Station), CLI-00-20, 52 NRC 151, 175 (2000); GPU 

Nuclear, Inc. (Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 205 

(2000). 

A petitioner can challenge the transferee’s cost and revenue projections if the challenge is 

based on sufficient facts, expert opinion, or documentary support. James A. FitzPatrick, 

CLI-00-22, 52 NRC at 300, citing Oyster Creek, CLI-00-6, 51 NRC at 207-08. 

The Commission does not require “absolute certainty” in financial forecasts. 

James A. FitzPatrick, CLI-00-22, 52 NRC at 300, citing N. Atl. Energy Serv. Corp.

(Seabrook Station, Unit 1), CLI-99-6, 49 NRC 201, 221-22 (1999). Challenges by 

interveners to financial qualifications “ultimately will prevail only if [they] can demonstrate 

HEARINGS 52 JUNE 2011
relevant certainties significantly greater than those that usually cloud business outlooks.” 

James A. FitzPatrick, CLI-00-22, 52 NRC at 300, quoting Seabrook, CLI-99-6, 

49 NRC at 222. See also Duke Energy Carolinas, LLC (William States Lee III Nuclear 

Station, Units 1 & 2), LBP-08-17, 68 NRC 431, 448-49 (2008) (finding that petitioner had 

failed to present enough support for its contention concerning the applicant’s financial 

qualifications to justify an evidentiary hearing). 

A plant’s proximity to various cities, towns, entertainment centers, and military facilities is 

not relevant to the question whether to approve the license transfer to that plant. 

James A. FitzPatrick, CLI-00-22, 52 NRC at 317. 

The Commission denied a petitioner’s request to arrange for an independent analysis of 

plants’ conditions based on historical problems in NRC’s Region I, since such an inquiry 

would go considerably beyond the scope of the license transfer proceeding. 

James A. FitzPatrick, CLI-00-22, 52 NRC at 318, citing Vermont Yankee, CLI-00-20, 

52 NRC at 171; Oyster Creek, CLI-00-6, 51 NRC at 210; Final Rule, Rules of Practice for 

Domestic Licensing Proceedings – Procedural Changes in the Hearing Process, 

54 Fed. Reg. 33,168, 33,171 (Aug. 11, 1989). 

Issues resolved in an ESP proceeding are “resolved” for the purposes of a COLA 

combined license application proceeding, although failure to meet ESP permit conditions 

or address combined license action items are still litigable and in that sense are not 

“resolved” because they will receive future attention. Exelon Generation Co., LLC (Early 

Site Permit for Clinton ESP Site), CLI-07-12, 65 NRC 203, 209 (2007). “[O]nce an ESP is 

issued, the public, and in most cases, the NRC, are barred (absent a finding of necessity) 

from applying more stringent or contemporary regulatory siting requirements on matters 

that were resolved in the ESP proceeding.” Dominion Nuclear North Anna, LLC (Early 

Site Permit for North Anna ESP Site), LBP-07-09, 65 NRC 539, 561 (2007). 

The Commission no longer conducts antitrust reviews in license transfer proceedings. 

James A. FitzPatrick, CLI-00-22, 52 NRC at 318, citing Vermont Yankee, CLI-00-20, 

52 NRC at 174; Oyster Creek, CLI-00-6, 51 NRC at 210; Tex. Gas & Elec. Corp. (Wolf 

Creek Generating Station, Unit 1), CLI-99-19, 49 NRC 441 (1999); Final Rule, Antitrust 

Review Authority: Clarification, 56 Fed. Reg. 44,649 (July 19, 2000). 

3.4.1 Intervenor’s Contentions – Admissibility at Hearing 

Contentions are like federal court complaints; before any decision that a contention 

should not be entertained, the proponent of the contention must be given some chance 

to be heard in response. Long Island Lighting Co. (Shoreham Nuclear Power Station, 

Unit 1), LBP-81-18, 14 NRC 71, 73 (1981), citing Houston Lighting & Power Co. (Allens 

Creek Nuclear Generating Station, Unit 1), ALAB-565, 10 NRC 521 (1979). 

A contention concerning the health effects of radon emissions will be admitted only if 

the documented opinion of one or more qualified authorities is provided to the 

Licensing Board that the incremental [health effects of] fuel cycle-related radon 

emissions will be greater than those determined in the Appeal Board proceeding. 

Philadelphia Elec. Co. (Limerick Generating Station, Units 1 & 2), LBP-82-43A, 

15 NRC 1423, 1454 (1982), citing Philadelphia Elec. Co. (Peach Bottom Atomic Power 

Station, Units 2 & 3), ALAB-654, 14 NRC 632, 635 (1981). 

JUNE 2011 HEARINGS 53
Where the only NEPA matters in controversy are legal contentions that there has been 

a failure to comply with NEPA and 10 C.F.R. Part 51, the Board may rule on the 

contentions without further evidentiary hearings, making use of the existing evidentiary 

record and additional material of which it can take official notice. Metro. Edison Co.

(Three Mile Island Nuclear Station, Unit 1), LBP-81-60, 14 NRC 1724, 1728 (1981). 

When considering admission of new intervenor contentions based on new regulatory 

requirements, the Licensing Board must find a “nexus” between the new requirements 

and the particular facility involved in the proceeding, and that the contentions raise 

significant issues. The new contentions need not be solely related to contentions 

previously admitted, but may address themselves to the new requirements imposed. 

Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), LBP-81-5, 

13 NRC 226, 233-34 (1981). 

New environmental contentions based on the NRC Staff’s draft environmental impact 

statement (DEIS) are permitted if data or conclusions in the DEIS differ significantly 

from the applicant’s environmental report. Private Fuel Storage, L.L.C. (Independent 

Spent Fuel Storage Installation), CLI-00-21, 52 NRC 261, 264 n.6 (2000), citing La. 

Energy Servs., L.P. (Claiborne Enrichment Center), CLI-97-2, 45 NRC 3, 4 (1997). 

Petitioner can challenge the transferee’s cost and revenue projections if the challenge 

is based on sufficient facts, expert opinion, or documentary support. Power Auth. of 

N.Y. (James A. FitzPatrick Nuclear Power Plant; Indian Point Nuclear Generating Unit 

3), CLI-00-22, 52 NRC 266, 300 (2000), citing GPU Nuclear, Inc. (Oyster Creek 

Nuclear Generating Station), CLI-00-6, 51 NRC 193, 207-08 (2000). 

As a general rule, Licensing Boards should not accept in individual license proceedings 

contentions which are (or about to become) the subject of general rulemaking by the 

Commission. As a corollary, certain issues included in an adjudicatory proceeding may 

be rendered inappropriate for resolution in that proceeding because the Commission 

has taken generic action during the pendency of the adjudication. There may 

nonetheless be situations in which matters subject to generic consideration may also 

be evaluated on a case-by-case basis where such evaluation is contemplated by, or at 

least consistent with, the approach adopted in the rulemaking proceeding. Metro. 

Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-729, 17 NRC 814, 

889-90 (1983), aff’d, CLI-84-11, 20 NRC 1 (1984). 

Intervenor maintains that the Board erred in refusing to consider its argument that the 

licensee must seek a construction permit to use the piping and equipment that were 

abandoned in the early 1980s. The Board ruled that the construction permit claim was 

not a part of intervenor’s admitted contention and cannot be admitted unless it fulfills 

the late-filing standards set out in 10 C.F.R. § 2.309(c) (formerly § 2.714(a)). See

Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), LBP-00-12, 

51 NRC 247, 281 (2000). Because intervenor made no effort to address the late-filing 

standards, the Board precluded further consideration of the issue. See Id. at 281-82. 

The Staff agrees with the Board. Intervenor was inexcusably late in attempting to 

introduce its construction permit claim. Carolina Power & Light Co. (Shearon Harris 

Nuclear Power Plant), CLI-01-11, 53 NRC 370, 391-92 (2001). 

HEARINGS 54 JUNE 2011
3.4.2 Issues Not Raised by Parties (Also See Section 3.1.2.7) 

A Licensing Board may, on its own motion, explore issues which the parties 

themselves have not placed in controversy. 10 C.F.R. § 2.340(a) (formerly § 2.760a); 

Consol. Edison Co. of N.Y., Inc. (Indian Point Nuclear Generating Units 1, 2 & 3), 

ALAB-319, 3 NRC 188, 190 (1976). This power, however, is not a license to conduct 

fishing expeditions and, in operating license proceedings, should be exercised 

sparingly and only in extraordinary circumstances where the Board concludes that a 

serious safety or environmental issue remains. Consol. Edison Co. of N.Y. (Indian 

Point Nuclear Generating Unit 3), CLI-74-28, 8 AEC 7 (1974); Tex. Util. Generating Co.

(Comanche Peak Steam Electric Station, Units 1 & 2), CLI-81-24, 14 NRC 614, 615 

(1981); Carolina Power & Light Co. (Shearon Harris Nuclear Plant), LBP-85-49, 22 

NRC 899, 915 n.2 (1985). 

When a Licensing Board in an operating license proceeding considers issues which 

might be deemed to be raised sua sponte by the Board, it should transmit copies of the 

order raising such issues to the Commission and General Counsel in accordance with 

the Secretary’s memo of June 30, 1981. Houston Lighting & Power Co. (South Texas 

Project, Units 1 & 2), LBP-81-54, 14 NRC 918, 922-23 (1981). 

The Licensing Board may be alerted to such serious issues not raised by the parties 

through the statements of those making limited appearances. See Iowa Elec. Light & 

Power Co. (Duane Arnold Energy Center), ALAB-108, 6 AEC 195, 196 n.4 (1973). 

Pursuant to authority granted under 10 C.F.R. § 2.340(a) (formerly § 2.760a), the 

presiding officer in an operating license proceeding may examine matters not put into 

controversy by the parties only where he or she determines that a serious safety, 

environmental or common defense and security matter exists. Tex. Util. Generating 

Co. (Comanche Peak Steam Electric Station, Units 1 & 2), CLI-81-24, 14 NRC 614, 

615 (1981); Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power 

Station), ALAB-869, 26 NRC 13, 25 (1987), reconsid. denied on other grounds, 

ALAB-876, 26 NRC 277 (1987). 

The Commission has directed that when a Licensing Board raises an issue sua sponte

in an operating license proceeding, it must issue a separate order making the requisite 

findings, briefly state its reasons for raising the issue, and forward a copy of the order 

to the Office of the General Counsel and the Commission. Comanche Peak, 

CLI-81-24, 14 NRC at 614; Vermont Yankee, ALAB-869, 26 NRC at 25. A Licensing 

Board may raise a safety issue sua sponte when sufficient evidence of a serious safety 

matter has been presented that reasonable minds could inquire further. Very specific 

findings are not required since they could cause prejudgment problems. The Board 

need only give its reasons for raising the problem. Southern Cal. Edison Co. (San 

Onofre Nuclear Generating Station, Units 2 & 3), LBP-81-36, 14 NRC 691, 697 (1981). 

In an operating license proceeding where a hearing is convened as a result of 

intervention, the Licensing Board will resolve all issues raised by the parties and any 

issues which it raises sua sponte. Indian Point, ALAB-319, 3 NRC at 190. The 

decision as to all other matters which need to be considered prior to issuance of the 

operating license is the responsibility of the NRC Staff alone. Indian Point, ALAB-319, 

3 NRC at 190; Portland Gen. Elec. Co. (Trojan Nuclear Plant), ALAB-181, 7 AEC 207, 

209 n.7 (1974); Kan. Gas & Elec. Co. (Wolf Creek Generating Station, Unit 1), 

JUNE 2011 HEARINGS 55
LBP-84-26, 20 NRC 53, 58 (1984). Once the Licensing Board has resolved all 

contested issues and any sua sponte issues, the NRC Staff then has the authority to 

decide if any other matters need to be considered prior to the issuance of an operating 

license. Tex. Util. Generating Co. (Comanche Peak Steam Electric Station, Units 1 

& 2), LBP-81-23, 14 NRC 159 (1981). The mere acceptance of a contention does not 

justify a Board’s assuming that a serious safety, environmental, or common defense 

and security matter exists or otherwise relieve it of the obligation under 

10 C.F.R. § 2.340(a) (formerly § 2.760a) to affirmatively determine that such a situation 

exists. Tex. Util. Generating Co. (Comanche Peak Steam Electric Station, Units 1 & 2), 

CLI-81-36, 14 NRC 1111, 1114 (1981). 

In a construction permit proceeding, the Licensing Board has a duty to ensure that the 

NRC Staff’s review was adequate, even as to matters which are uncontested. Gulf 

States Util. Co. (River Bend Station, Units 1 & 2), ALAB-444, 6 NRC 760, 774 (1977). 

The fact that the Staff may be estopped from asserting a position does not affect a 

Board’s independent responsibility to consider the issue involved. Southern Cal. 

Edison Co. (San Onofre Nuclear Generating Station, Units 2 & 3), ALAB-268, 

1 NRC 383 (1975). 

An adjudicatory board’s examination of unresolved generic safety issues, not put into 

controversy by the parties, is necessarily limited to whether the Staff’s approach is 

plausible, and whether the explanations given for support of continued safe operation 

of the facility are sufficient on their face. Northern States Power Co. (Monticello 

Nuclear Generating Plant, Unit 1), ALAB-620, 12 NRC 574, 577 (1980). 

Arguments not raised by intervenors in their written presentations, but raised in the 

affidavits of intervenor expert witnesses, were not considered by the presiding officer 

and were deemed to have been waived. Hydro Res., Inc. (P.O. Box 777, Crownpoint, 

N.M. 87313), LBP-05-17, 62 NRC 77, 98-99 n.14 (2005). 

3.4.3 Issues Not Addressed by a Party 

The parties must be given an opportunity, at oral hearing or by written pleadings, to 

produce relevant evidence concerning abuses of Commission regulations and 

adjudicatory process, but if a party fails to formally tender such evidence, the Licensing 

Board should not engage in its own independent and selective search of the record. 

Philadelphia Elec. Co. (Fulton Generating Station, Units 1 & 2), ALAB-657, 

14 NRC 967, 978 (1981). 

While an applicant has the ultimate burden of proof on any issues upon which a 

hearing is held, hearings are held on only those issues that an intervenor brings to the 

fore. The burden of going forward on any issues that make it to the hearing process is 

on the intervenor which is pursuing that issue. Private Fuel Storage, L.L.C.

(Independent Spent Fuel Storage Installation), LBP-05-12, 61 NRC 319, 326 (2005), 

aff’d, Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), 

CLI-05-19, 62 NRC 403 (2005). 

Although it is incumbent upon a party to act to protect its rights, there is no bar to a 

Licensing Board taking every precaution to be sure that, after a ruling is made, there is 

not even a possibility that its full import may be misunderstood. Therefore, although 

HEARINGS 56 JUNE 2011
the Board was only required to rule on the scope of the hearing, it could also have 

gone on to define more precisely and expressly the outlines of, and limits upon, the 

issues. Private Fuel Storage, LBP-05-12, 61 NRC at 329. 

3.4.4 Separate Hearings on Special Issues 

Pursuant to a Licensing Board’s general power to regulate the course of a hearing 

under 10 C.F.R. § 2.319 (formerly § 2.718), a Board has the authority to consider, 

either on its own or at a party’s request, a particular issue separately from and prior to 

other issues that must be decided in a proceeding. Potomac Elec. Power Co. (Douglas 

Point Nuclear Generating Station, Units 1 & 2), ALAB-277, 1 NRC 539, 544 (1975). 

Indeed, multiple contentions can be grouped and litigated in separate segments of the 

evidentiary hearing so as to enable the Licensing Board to issue separate partial initial 

decisions, each of which decides a major segment of the case. Long Island Lighting 

Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-30, 17 NRC 1132, 1136 

(1983). 

In a special proceeding, where the Commission has specified the issues for hearing, a 

Licensing Board is obliged to resolve all such issues even in the absence of active 

participation by intervenors. Metro. Edison Co. (Three Mile Island Nuclear Station, 

Unit 1), ALAB-772, 19 NRC 1193, 1263 (1984), rev’d in part on other grounds, 

CLI-85-2, 21 NRC 282 (1985). 

A request for a low-power license does not give rise to an entire proceeding separate 

and apart from a pending full-power operating license proceeding. Pac. Gas & Elec. 

Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-82-39, 16 NRC 1712, 1715 

(1982), citing Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), 

CLI-81-5, 13 NRC 361 (1981). 

The Appeal Board’s holding in Douglas Point – that any early findings made by a 

Licensing Board, in circumstances where the applicant had disclosed an intent to 

postpone construction for several years, would be open to reconsideration “only if 

supervening developments or newly available evidence so warrant” – does not support 

a later Licensing Board’s action in imposing a similar limitation on the right to raise 

issues which were not encompassed by the early findings. Houston Lighting & Power 

Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377, 386-87 

(1979), reconsid. denied, ALAB-539, 9 NRC 422 (1979). 

The Chief Judge of the Licensing Board Panel is empowered to establish multiple 

Boards only when: (1) the proceeding involves discrete and separable issues; (2) the 

issues can be more expeditiously handled by multiple Boards than by a single Board; 

and (3) multiple Boards can conduct the proceedings in a manner that will not unduly 

burden the parties. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage 

Facility), CLI-98-7, 47 NRC 307, 311 (1998); Statement of Policy on Conduct of 

Adjudicatory Proceedings, CLI-98-12, 48 NRC 18 (1998). 

3.4.5 Construction Permit Extension Proceedings 

Section 185 of the AEA, 42 U.S.C. § 2235, provides that a construction permit will not 

expire and no rights under the permit will be forfeited unless two circumstances are 

present: (1) the facility is not completed, and (2) the latest date for completion has 

JUNE 2011 HEARINGS 57
passed. If construction is complete, no further extension of the completion date is 

required. Tex. Util. Elec. Co. (Comanche Peak Steam Electric Station, Unit 2), 

CLI-93-10, 37 NRC 192, 201 (1993). Commission regulations provide that the 

substantial completion of a facility’s construction satisfies the AEA’s requirements 

regarding completion of the facility. See 10 C.F.R. §§ 50.56, 50.57(a)(1) (1993); 

Comanche Peak, CLI-93-10, 37 NRC at 201 n.35. 

The filing of a timely request for an extension of the completion date maintains the 

construction permit in force by operation of law and, accordingly, the licensee may 

lawfully continue construction activities pending a final determination of its application. 

Comanche Peak, CLI-93-10, 37 NRC at 201, 202. 

An applicant who fails to file a timely request for an extension of its construction permit 

and allows the permit to expire does not automatically forfeit the permit. The 

Commission has held that a construction permit does not lapse until the Commission 

has taken affirmative action to complete the forfeiture. The Commission will consider 

and may grant an untimely application for an extension of the construction permit, 

without requiring the initiation of a new construction permit proceeding. However, the 

applicant must still establish good cause for an extension of its permit. In addition, the 

applicant is not entitled to continue its construction activities after the expiration date of 

its permit and prior to any extension of its permit. Tex. Util. Elec. Co. (Comanche Peak 

Steam Electric Station, Unit 1), CLI-86-4, 23 NRC 113, 120 & n.4-5 (1986). 

A licensee’s substantial completion of construction, lawfully undertaken during the 

pendency of petitioner’s challenge to a construction extension request, renders moot 

any controversy over further extension of the completion date in the construction 

permit. Comanche Peak, CLI-93-10, 37 NRC at 200. 

Unless an applicant is responsible for delays in completion of construction and acted in 

a dilatory manner (i.e., intentionally and without a valid purpose), a contested 

construction permit extension proceeding is not to be undertaken at all. Moreover, 

even if a properly framed contention leads to such a proceeding and is proven true, the 

AEA and implementing regulations do not erect an absolute bar to extending the 

permit. A judgment must still be made as to whether continued construction should 

nonetheless be allowed. Wash. Pub. Power Supply Sys. (WPPSS Nuclear Project 

No. 2), ALAB-722, 17 NRC 546, 553 (1983). 

3.4.5.1 Scope of Construction Permit Extension Proceedings 

The focus of any construction permit extension proceeding is to be whether “good 

cause” exists for the requested extension. Determination of the scope of an 

extension proceeding should be based on “common sense” and the “totality of the 

circumstances”; more specifically, whether the reasons assigned for the extension 

give rise to health and safety or environmental issues which cannot appropriately 

abide the event of the environmental review-facility operating license hearing. A 

contention cannot be litigated in a construction permit extension proceeding when 

an operating license proceeding is pending in which the issue can be raised; and, 

prior to the operating license proceeding, a contention having nothing whatsoever to 

do with the causes of delay or the permit holder’s justifications for an extension 

cannot be litigated in a construction permit proceeding. In seeking an extension, a 

permit holder must put forth reasons, founded in fact, that explain why the delay 

HEARINGS 58 JUNE 2011
occurred and those reasons must, as a matter of law, be sufficient to sustain a 

finding of good cause. Wash. Pub. Power Supply Sys. (WPPSS Nuclear Project 

Nos. 1 & 2), CLI-82-29, 16 NRC 1221, 1227, 1229-30 (1982), citing Ind. & Mich. 

Elec. Co. (Donald C. Cook Nuclear Plant, Units 1 & 2), ALAB-129, 6 AEC 414 

(1973); Northern Ind. Pub. Serv. Co. (Bailly Generating Station, Nuclear-1), 

ALAB-619, 12 NRC 558 (1980). See Wash. Pub. Power Supply Sys. (WPPSS 

Nuclear Project No. 1), ALAB-771, 19 NRC 1183, 1189 (1984). 

The NRC’s inquiry will be into reasons that have contributed to the delay in 

construction and whether those reasons constitute “good cause” for the extension; 

the same limitation to apply to any interested person seeking to challenge the 

request for an extension. The most “common sense” approach to the interpretation 

of Section 185 of the AEA and 10 C.F.R. § 50.55 is that the scope of a construction 

permit extension proceeding is limited to direct challenges to the permit holder’s 

asserted reasons that show a “good cause” justification for the delay. WPPSS, 

CLI-82-29, 16 NRC at 1228-29; Wash. Pub. Power Supply Sys. (WPPSS Nuclear 

Project No. 2), ALAB-722, 17 NRC 546, 550-51 (1983); Pub. Serv. Co. of N.H.

(Seabrook Station, Unit 2), CLI-84-6, 19 NRC 975, 978 (1984); Tex. Util. Elec. Co.

(Comanche Peak Steam Electric Station, Unit 1), CLI-86-4, 23 NRC 113, 121 

(1986). 

The only question litigable in a construction permit extension proceeding – whether 

the licensee has demonstrated “good cause” for the extension – is no longer of legal 

interest after the licensee has lawfully completed construction under the permit and 

requires no further extension of the completion date. Tex. Util. Elec. Co.

(Comanche Peak Steam Electric Station, Unit 2), CLI-93-10, 37 NRC 192, 204 

(1993). 

Proceedings on construction permit extensions are limited in scope to challenges to 

the licensee’s asserted “good cause” for the extension, and are not an avenue to 

challenge a pending operating license. Comanche Peak, CLI-93-10, 

37 NRC at 205. 

The scope of review for construction period recapture proceedings may be broader 

than that for license renewal, inasmuch as the Commission issued a new rule 

(10 C.F.R. Part 54) for license renewal specifically spelling out and limiting the 

scope of such proceedings. Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Plant, 

Units 1 & 2), LBP-93-1, 37 NRC 5, 13-14 (1993). 

A permit holder may establish good cause for delays by showing a need to correct 

deficiencies which resulted from a previous corporate policy to speed construction 

by intentionally violating NRC requirements. The permit holder must also show that 

the previous policy has since been discarded and repudiated. Tex. Util. Elec. Co.

(Comanche Peak Steam Electric Station, Unit 1), CLI-86-15, 24 NRC 397, 403 

(1986). 

An intentional slowing of construction because of a temporary lack of financial 

resources or a slower growth rate of electric power than had been originally 

projected would constitute delay for a valid business purpose. Wash. Pub. Power 

Supply Sys. (WPPSS Nuclear Project No. 1), LBP-84-9, 19 NRC 497, 504 (1984), 

aff’d, ALAB-771, 19 NRC 1183, 1190 (1984). 

JUNE 2011 HEARINGS 59
The Licensing Board should not substitute its judgment for that of the applicant in 

selecting one among a number of reasonable business alternatives. It is not the 

Board’s mission to superintend utility management when it makes business 

judgments for which it is ultimately responsible. WPPSS, ALAB-771, 

19 NRC at 1190-91, citing Detroit Edison Co. (Enrico Fermi Atomic Power Plant, 

Unit 2), ALAB-475, 7 NRC 752, 757-58 (1978). 

3.4.5.2 Contentions in Construction Permit Extension Proceedings 

The test for determining whether a contention is within the scope of a construction 

permit extension proceeding is a two-pronged one. First, the construction delays at 

issue have to be traceable to the applicant. Second, the delays must be “dilatory.” 

If both prongs are met, the delay is without “good cause.” Wash. Pub. Power 

Supply Sys. (WPPSS Nuclear Project Nos. 1 & 2), CLI-82-29, 16 NRC 1221, 1231 

(1982); Wash. Pub. Power Supply Sys. (WPPSS Nuclear Project No. 2), ALAB-722, 

17 NRC 546, 551 (1983); Wash. Pub. Power Supply Sys. (WPPSS Nuclear Project 

No. 1), LBP-84-9, 19 NRC 497, 502 (1984), aff’d, ALAB-771, 19 NRC 1183, 1189 

(1984). “Dilatory conduct” in this context means the intentional delay of construction 

without a valid purpose. WPPSS, ALAB-722, 17 NRC at 552; WPPSS, LBP-84-9, 

19 NRC at 502, aff’d, ALAB-771, 19 NRC at 1190. 

Intervenors in a construction permit extension proceeding may only litigate those 

issues that (1) arise from the reasons assigned to the requested extension, and 

(2) cannot abide the operating license proceeding. Northern Ind. Pub. Serv. Co.

(Bailly Generating Station, Nuclear-1), LBP-80-31, 12 NRC 699, 701 (1980); Long 

Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-41, 

15 NRC 1295, 1301 (1982). 

Contentions having no discernible relationship to the construction permit extension 

are inadmissible in a permit extension proceeding; a show cause proceeding under 

10 C.F.R. § 2.206 is the exclusive remedy. Northern Ind. Pub. Serv. Co. (Bailly 

Generating Station, Nuclear-1), LBP-81-6, 13 NRC 253, 254 (1981), citing Northern 

Ind. Pub. Serv. Co. (Bailly Generating Station, Nuclear-1), ALAB-619, 12 NRC 558 

(1980); Shoreham, LBP-82-41, 15 NRC at 1302; Pub. Serv. Co. of N.H. (Seabrook 

Station, Unit 2), CLI-84-6, 19 NRC 975, 979 (1984). 

An intervenor’s concerns about substantive safety issues are inadmissible in a 

construction permit extension proceeding. Such concerns are more appropriately 

raised in an operating license proceeding or in a 10 C.F.R. § 2.206 petition for NRC 

Staff enforcement action against the applicant. Tex. Util. Elec. Co. (Comanche 

Peak Steam Electric Station, Unit 1), CLI-86-4, 23 NRC 113, 121 & n.6, 123 (1986). 

A consideration of the health, safety or environmental effects of delaying 

construction cannot be heard at the construction permit extension proceeding but 

must await the operating license stage. WPPSS, LBP-84-9, 19 NRC at 506-07, 

aff’d, ALAB-771, 19 NRC at 1189. 

There is no basis in the AEA or in the regulations for challenging the period of time 

in the requested extension on the grounds that the period requested is too short. 

WPPSS, LBP-84-9, 19 NRC at 506, aff’d, ALAB-771, 19 NRC at 1191. 

HEARINGS 60 JUNE 2011
In a construction period recapture proceeding, implementation of maintenance and 

surveillance programs may be challenged, even though the paper programs are not 

being modified. Irrespective of how comprehensive a program may appear on 

paper, it will be essentially without value unless it is timely, continuously, and 

properly implemented. Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Plant, Units 1 

& 2), LBP-93-1, 37 NRC 5, 19 (1993), citing Consumers Power Co. (Midland Plant, 

Units 1 & 2), ALAB-106, 6 AEC 182, 184 (1973). 

Numerous, repetitious cited violations or other incidents may form the basis for a 

contention questioning the adequacy of a maintenance or surveillance program, 

even though none of the individual violations or other incidents rises to the level of a 

serious safety issue. When sufficient repetitive or similar incidents are 

demonstrated, aggregation and/or escalation of sanctions may be in order. Diablo 

Canyon, LBP-93-1, 37 NRC at 19. 

3.4.6 Motion to Strike 

A motion to strike is the appropriate mechanism for seeking the removal of information 

from a pleading or other submission that is “irrelevant,” or in the context of summary 

dispositions, portions of a filing or affidavit that contain technical arguments based on 

questionable competence. Private Fuel Storage, L.L.C. (Independent Spent Fuel 

Storage Installation), LBP-05-20, 62 NRC 187, 228 (2003). 

3.4.7 Result of Withdrawal of a Party 

When a party withdraws from a proceeding, the issues sponsored solely by it are 

normally dismissed from the proceeding. Power Auth. of N.Y. (James A. FitzPatrick 

Nuclear Power Plant; Indian Point Nuclear Generating Unit 3), LBP-01-5, 53 NRC 136, 

137 (2001). 

A co-sponsored issue need not be dismissed as a result of the withdrawal of one of the 

sponsoring parties. Id. at 137. 

A participant is free to withdraw a request for a licensing action without presiding officer 

approval. Such an action generally moots the proceeding. Fansteel Inc. (Muskogee, 

Oklahoma Facility), LBP-03-13, 58 NRC 96, 102 (2003). 

3.5 Summary Disposition

3.5.1 Applicability of Federal Rules Governing Summary Judgment 

The NRC’s standard for summary disposition in 10 C.F.R. § 2.710 is based upon the 

standard for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. 

Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear 

Power Station), CLI-10-11, 71 NRC __ (March 26, 2010) (slip op. at 11-12). Decisions 

arising under the Federal Rules may serve as guidelines to Licensing Boards in 

applying 10 C.F.R. § 2.710 (formerly § 2.749). Dairyland Power Coop. (La Crosse 

Boiling Water Reactor), LBP-82-58, 16 NRC 512, 519 (1982), citing Cleveland Elec. 

Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), ALAB-443, 6 NRC 741, 754 

(1977); Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), LBP-74-36, 7 AEC 877, 

878-79 (1974). Subsequent decisions of Licensing Boards have analogized 

JUNE 2011 HEARINGS 61
10 C.F.R. § 2.710 (formerly § 2.749) to Rule 56 to the extent that the Rule applied in 

the cases in question. See, e.g., Pub. Serv. Co. of Okla. (Black Fox Station, Units 1 

& 2), ALAB-573, 10 NRC 775, 787 n.51 (1978); Gulf States Util. Co. (River Bend 

Station, Units 1 & 2), LBP-75-10, 1 NRC 246, 247 (1975); Seabrook, LBP-74-36, 

7 AEC at 878; Entergy Nuclear Vermont Yankee, L.L.C. (Vermont Yankee Nuclear 

Power Station), LBP-06-5, 63 NRC 116, 121 (2006), citing Advanced Med. Sys., Inc.

(One Factory Row, Geneva, Ohio 44041), CLI-93-22, 38 NRC 98, 102 (1993). See 

also Section 5.8.5. Further, because the Commission’s summary disposition rules 

borrow extensively from Rule 56 of the Federal Rules of Civil Procedure, it has long 

been held that federal court decisions interpreting and applying like provisions of 

Rule 56 are appropriate precedent for the Commission’s rules. Safety Light Corp.

(Bloomsburg Site Decommissioning and License Renewal Denials), LBP-95-9, 

41 NRC 412, 449 n.167 (1995), citing Perry, ALAB-443, 6 NRC at 753-54; Duke 

Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), 

LBP-05-4, 61 NRC 71, 79 (2005). Thus, pursuant to Rule 56(c), and, by analogy the 

Commission’s summary disposition rule, “[o]nly disputes over facts that might affect the 

outcome of the suit under the governing law will properly preclude the entry of 

summary judgment. Factual disputes that are irrelevant or unnecessary will not be 

counted.” Safety Light Corp., LBP-95-9, 41 NRC at 449 n.167, citing Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 

3.5.2 Standard for Granting/Denying a Motion for Summary Disposition 

Summary disposition may be granted where the relevant documents demonstrate 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 law. Entergy Nuclear Generation Co. and Entergy Nuclear 

Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC __ 

(March 26, 2010) (slip op. at 11-12); Advanced Med. Sys., Inc., CLI-93-22, 38 NRC 98, 

102-03 (1993), reconsid. denied, CLI-93-24, 38 NRC 187 (1993). 

Under the concept of summary disposition (or summary judgment), the motion is 

granted only where the movant is entitled to judgment as a matter of law, where it is 

quite clear what the truth is and where there is no genuine issue of material fact that 

remains for trial. Tenn. Valley Auth. (Browns Ferry Nuclear Plant, Units 1, 2, & 3), 

LBP-73-29, 6 AEC 682, 688 (1973); Private Fuel Storage, L.L.C., LBP-99-23, 

49 NRC 485, 491 (1999); Carolina Power & Light Co. (Shearon Harris Nuclear Power 

Plant), CLI-01-11, 53 NRC 370, 384 (2001). 

The regulations do not require merely the showing of a “material issue of fact” or an 

“issue of fact.” Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. 

(Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC __ (March 26, 2010) (slip op. 

at 12). The regulations require a genuine issue of material fact. To be genuine, the 

factual record, considered in its entirety, must be enough in doubt so that there is a 

reason to hold a hearing to resolve the issue. Cleveland Elec. Illuminating Co. (Perry 

Nuclear Power Plant, Units 1 & 2), LBP-83-46, 18 NRC 218, 223 (1983). Absent any 

probative evidence supporting the claim, mere assertions of a dispute as to material 

facts does not invalidate the licensing Board’s grant of summary disposition. Advanced 

Med. Sys., Inc. (One Factory Row, Geneva, Ohio 44041), CLI-94-6, 39 NRC 285, 

309-10 (1994), aff’d, Advanced Med. Sys., Inc. v. NRC, 61 F.3d 903 (6th Cir. 1995) 

(Table); Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), 

LBP-02-2, 55 NRC 20, 30 (2002); Safety Light Corp. (Bloomsburg Site 

HEARINGS 62 JUNE 2011
Decommissioning and License Renewal Denials), LBP-95-9, 41 NRC 412, 449 n.167, 

citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 

Summary disposition is a useful tool for resolving contentions that, after discovery is 

completed, are shown by undisputed facts to have nothing to commend them, but it is 

not a tool for trying to convince a Licensing Board to decide genuine issues of material 

fact that warrant resolution at a hearing. Private Fuel Storage, L.L.C. (Independent 

Spent Fuel Storage Installation), LBP-01-39, 54 NRC 497, 509 (2001); Entergy Nuclear 

Vermont Yankee, L.L.C. (Vermont Yankee Nuclear Power Station), LBP-06-5, 

63 NRC 116, 121 (2006). 

A contention will not be summarily dismissed where the Licensing Board determines 

that there still exist controverted issues of material fact. Houston Lighting & Power Co.

(Allens Creek Nuclear Generating Station, Unit 1), LBP-81-34, 14 NRC 637, 640-41 

(1981). Admission as a party to a Commission proceeding based on one acceptable 

contention does not preclude summary disposition nor guarantee a party a hearing on 

its contentions. Wis. Elec. Power Co. (Point Beach Nuclear Plant, Unit 1), ALAB-696, 

16 NRC 1245, 1258 n.15 (1982), citing Houston Lighting & Power Co. (Allens Creek 

Nuclear Generating Station, Unit 1), ALAB-590, 11 NRC 542, 550 (1980). 

Section 2.710 (formerly Section 2.749), like Rule 56, is a procedural device to be used 

as part of a screening mechanism for eliminating unnecessary consideration of 

assertions which do not involve factual controversy. Use of summary disposition to 

resolve tenuous issues raised in petitions to intervene has been encouraged by the 

Commission and the Appeal Board. See, e.g., Northern States Power Co. (Prairie 

Island Nuclear Generating Plant, Units 1 & 2), CLI-73-12, 6 AEC 241, 242 (1973); 

Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), 

ALAB-629, 13 NRC 75, 77 (1981); Miss. Power & Light Co. (Grand Gulf Nuclear 

Station, Units 1 & 2), ALAB-130, 6 AEC 423, 424-25 (1973); Duquesne Light Co.

(Beaver Valley Power Station, Unit 1), ALAB-109, 6 AEC 243, 246 (1973); Pa. Power & 

Light Co. (Susquehanna Steam Electric Station, Units 1 & 2), LBP-81-8, 13 NRC 335, 

337 (1981). If the issue is demonstrably insubstantial, it should be decided pursuant to 

summary disposition procedures to avoid unnecessary and possibly time-consuming 

hearings. La. Power & Light Co. (Waterford Steam Electric Station, Unit 3), 

LBP-81-48, 14 NRC 877, 883 (1981). 

Once an applicant has submitted a motion that makes a proper showing for summary 

disposition, the litmus test of whether or not to grant the summary disposition motion is 

whether the intervenor has presented a genuine issue as to any material fact that is 

relevant to its allegation that could lead to some form of relief. Ga. Power Co. (Vogtle 

Electric Generating Plant, Units 1 & 2) LBP-94-37, 40 NRC 288 (1994). A fact is 

material if it will affect the outcome of a proceeding under the governing law. Entergy 

Nuclear Generating Co. (Pilgrim Nuclear Power Station), LBP-07-12, 66 NRC 113, 125 

(2007). 

The Commission has encouraged the use of summary disposition to resolve 

contentions where an intervenor has failed to establish that a genuine issue exists. 

Dairyland Power Coop. (La Crosse Boiling Water Reactor), LBP-82-58, 16 NRC 512, 

519 (1982), citing Prairie Island, CLI-73-12, 6 AEC at 242, aff’d sub nom. BPI v. AEC, 

502 F.2d 424 (D.C. Cir. 1974); Allens Creek, ALAB-590, 11 NRC at 550-51; Grand 

Gulf, ALAB-130, 6 AEC at 424-25. 

JUNE 2011 HEARINGS 63
A Licensing Board will deny intervenors’ motion for summary disposition where the 

intervenors have not raised any litigable issues because of their failure to submit 

admissible contentions. Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), 

LBP-89-38, 30 NRC 725, 741 (1989), aff’d on other grounds, ALAB-949, 33 NRC 484, 

490 n.19 (1991). 

If there is any possibility that a litigable issue of fact exists or any doubt as to whether 

the parties should have been permitted or required to proceed further, the motion must 

be denied. Gen. Elec. Co. (GE Morris Operation Spent Fuel Storage Facility), 

LBP-82-14, 15 NRC 530, 532 (1982); Safety Light Corp. (Bloomsburg Site 

Decommissioning and License Renewal Denials), LBP-95-9, 41 NRC 412, 449 n.167, 

citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). As the Board rules 

on such a motion, all statements of material facts required to be served by the moving 

party must be deemed to be admitted, unless controverted by the statement required to 

be served by the opposing party. 10 C.F.R. § 2.710 (formerly § 2.749). 

Motions for summary disposition under Section 2.710 (formerly Section 2.749) are 

analogous to motions for summary judgment under Rule 56 of the Federal Rules of 

Civil Procedure. To defeat a motion for summary disposition, an opposing party must 

present facts in an appropriate form. Conclusions of law and mere arguments are not 

sufficient. The asserted facts must be material and of a substantial nature, not fanciful 

or merely suspicious. Where neither an answer opposing the motion nor a statement 

of material fact has been filed by an intervenor, and where Staff and applicants have 

filed affidavits to show that no genuine issue exists, the motion for summary judgment 

will not be defeated. Tex. Util. Generating Co. (Comanche Peak Steam Electric 

Station, Units 1 & 2), LBP-82-17, 15 NRC 593, 595-96 (1982). Even though the 

summary disposition opponent is entitled to all reasonable inferences, it must, in the 

face of well-pled undisputed material facts, provide something more than suspicious or 

bald assertions as the basis for a material factual dispute. Private Fuel Storage, L.L.C.

(Independent Spent Fuel Storage Installation), LBP-01-40, 54 NRC 526, 536 (2001). 

The Commission’s summary disposition rule (10 C.F.R. § 2.710 (formerly § 2.749)) 

gives a party a right to an evidentiary hearing only where there is a genuine issue of 

material fact. Cameo Diagnostic Ctr., Inc., LBP-94-34, 40 NRC 169 (1994). An 

important effect of this principle is that applicants for licenses may be subject to 

substantial expense and delay when genuine issues have been raised, but are entitled 

to an expeditious determination, without need for an evidentiary hearing on all issues 

which are not genuine. Consumers Power Co. (Big Rock Point Plant), LBP-82-8, 

15 NRC 299, 301 (1982). 

On its face, 10 C.F.R. § 2.710 (formerly § 2.749) provides a remedy only with regard to 

matters which have not already been the subject of an evidentiary hearing in the 

proceedings at bar, but which are susceptible of final resolution on the papers 

submitted by the parties in advance of any such hearing. Tenn. Valley Auth. (Hartsville 

Nuclear Plant, Units 1A, 2A, 1B, & 2B), ALAB-554, 10 NRC 15, 19 (1979). 

While summary judgment is generally not appropriate, pursuant to Rule 56 of the 

Federal Rules, where credibility of witness determinations are necessary, witness 

testimony that lacks an adequate basis will not suffice to preclude summary judgment. 

Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication 

Facility), LBP-05-4, 61 NRC 71, 81 (2005). 

HEARINGS 64 JUNE 2011
For proceedings conducted pursuant to the “informal” hearing procedures of 

10 C.F.R. Part 2, Subpart L, summary disposition motions are to be resolved in accord 

with the standards for dispositive motions for “formal” hearings, as set forth in Part 2, 

Subpart G. See 10 C.F.R. § 2.1205(c). In that regard, 10 C.F.R. § 2.710(d)(2) 

provides that summary disposition may be entered with respect to any matter (or all 

matters) in a proceeding if the motion, along with any appropriate supporting materials 

(including affidavits, discovery responses, and documents), shows 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 law.” Southern Nuclear Operating Co. (Early Site Permit for Vogtle ESP 

Site), LBP-08-2, 67 NRC 54, 62-63 (2008). 

Challenges in Freedom of Information Act cases routinely are resolved on the basis of 

summary judgment pleadings. Pac. Gas & Elec. Co. (Diablo Canyon Power Plant 

Independent Spent Fuel Storage Installation), LBP-08-7, 67 NRC 361, 371 (2008). 

3.5.3 Burden of Proof with Regard to Summary Disposition Motions 

The party seeking summary judgment bears the burden of showing the absence of a 

genuine issue as to any material fact and evidence must be viewed in the light most 

favorable to the party opposing summary judgment; e.g., Advanced Med. Sys., Inc.

(One Factory Row, Geneva, Ohio 44041), CLI-93-22, 38 NRC 98, 102 (1993); Private 

Fuel Storage, L.L.C., LBP-99-31, 50 NRC 147, 152 (1999); Private Fuel Storage, 

L.L.C., LBP-99-42, 50 NRC 295, 301 (1999); Private Fuel Storage, L.L.C. (Independent 

Spent Fuel Storage Installation), LBP-00-6, 51 NRC 101, 112 (2000); Entergy Nuclear 

Vermont Yankee, L.L.C. (Vermont Yankee Nuclear Power Station), LBP-06-5, 

63 NRC 116, 121 (2006); Pac. Gas & Elec. Co. (Diablo Canyon Power Plant 

Independent Spent Fuel Storage Installation), LBP-08-7, 67 NRC 361, 371 (2008). 

To meet this burden, the movant must eliminate any real doubt as to the existence of 

any genuine issue of material fact. Poller v. Columbia Broad. Sys. Inc., 368 U.S. 464 

(1962); Sartor v. Ark. Natural Gas Corp., 321 U.S. 620, 627 (1954); La. Power & Light 

Co. (Waterford Steam Electric Station, Unit 3), LBP-81-48, 14 NRC 877, 883 (1981). 

See also Vermont Yankee, LBP-06-5, 63 NRC at 121 (“Summary disposition may be 

granted only if the truth is clear”) (citing Poller, 368 U.S. at 467). 

Summary disposition is not appropriate when the movant fails to carry its burden 

setting forth all material facts pertaining to its summary disposition motion. Gulf States 

Util. Co. (River Bend Station, Unit 1), LBP-95-10, 41 NRC 460, 466 (1995). Thus, if a 

movant fails to make the requisite showing, its motion may be denied even in the 

absence of any response by the proponent of a contention. Dairyland Power 

Cooperative (La Crosse Boiling Water Reactor), LBP-82-58, 16 NRC 512, 519 (1982). 

See Carolina Power & Light Co. (Shearon Harris Nuclear Plant, Units 1 & 2), LBP-84-7, 

19 NRC 432, 435 (1984), reconsid. denied on other grounds, LBP-84-15, 19 NRC 837, 

838 (1984). The fact that the party opposing summary disposition failed to submit 

evidence controverting the disposition does not mean that the motion must be granted. 

Even if no party opposes a motion for summary disposition, the movant’s filings must 

still establish the absence of a genuine issue of material fact. An intervenor that does 

respond to a motion for summary disposition but that fails to file the required “separate 

statement” should be no worse off than one who fails to respond at all. Cleveland Elec. 

Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), LBP-83-3, 17 NRC 59, 62 

(1983). Nonetheless, where a proponent of a contention fails to respond to a motion 

JUNE 2011 HEARINGS 65
for summary disposition, it does so at its own risk; for, if a contention is to remain 

litigable, there must at least be presented to the Board a sufficient factual basis “to 

require reasonable minds to inquire further.” La Crosse, LBP-82-58, 

16 NRC at 519-20, citing Pa. Power & Light Co. (Susquehanna Steam Electric Station, 

Units 1 & 2), ALAB-613, 12 NRC 317, 340 (1980); La. Power & Light Co. (Waterford 

Steam Electric Station, Unit 3), ALAB-753, 18 NRC 1321, 1325 n.3 (1983); Northeast 

Nuclear Energy Co. (Millstone Nuclear Power Station, Unit 2), LBP-93-12, 38 NRC 5 

(1993). 

The moving party fails to meet its burden when the filings demonstrate the existence of 

a genuine material fact, when the evidence introduced does not show that the 

nonmoving party’s position is a sham, when the matters presented fail to foreclose the 

possibility of a factual dispute, or when there is an issue as to the credibility of the 

moving party’s evidentiary material. Vermont Yankee, LBP-06-5, 63 NRC at 122. In 

PFS, the petitioner asserted numerous statements of fact, none of which were deemed 

to show any genuine dispute of law or fact existed. These included a statement as to 

the identity of certain state officials, statements about the actions and policies of the 

Utah Legislation and the Governor, statements about the petitioner’s proposed 

independent spent fuel storage installation (ISFSI) (which was not the subject of the 

licensing proceeding), and the petitioner’s claims for monetary damages arising from 

actions taken by the State of Utah. Private Fuel Storage, L.L.C. (Independent Spent 

Fuel Storage Installation), LBP-00-23, 52 NRC 114, 125-26 (2000). 

 Where the movant has satisfied his initial burden and has supported his motion by 

affidavit, the opposing party must proffer countering evidential material or an affidavit 

explaining why it is impractical to do so. Pub. Serv. Co. of N.H. (Seabrook Station, 

Units 1 & 2), LBP-83-32A, 17 NRC 1170, 1174 n.4 (1983). The opposing party need 

not show that he would prevail on the issues, but only that there are genuine issues to 

be tried. Am. Mfgs. Mut. Ins. Co. v. Am. Broad.–Paramount Theaters, Inc., 

388 F.2d 272, 280 (2d Cir. 1967); Commonwealth Edison Co. (Braidwood Nuclear 

Power Station, Units 1 & 2), LBP-86-12, 23 NRC 414, 418 (1986). Where a party 

opposing the motion is unable to file affidavits in opposition in the time available, he 

may file an affidavit showing good reasons for his inability to make a timely response, 

in which case the Board may refuse to grant summary disposition, grant a continuance 

to permit proper affidavits to be prepared, or take other appropriate action. 

10 C.F.R. § 2.710(c) (formerly § 2.729(c)); Advanced Medical Systems, Inc. (One 

Factory Row, Geneva, Ohio 44041), CLI-93-22, 38 NRC 98, 103 & n.6 (1993). 

The party opposing summary disposition must append to its response a statement of 

material facts about which there exists a genuine issue to be heard. If the responding 

party does not adequately controvert material facts set forth in the motion, the party 

faces the possibility that those facts may be deemed admitted. See

10 C.F.R. § 2.710(a) (formerly § 2.749(a)); Private Fuel Storage, L.L.C., LBP-99-23, 

49 NRC 485, 491 (1999). Given the respondent’s burden to counter the movant’s 

assertions and statement of material facts, the Board may consider the respondent’s 

failure to directly contradict these proffered assertions if the Board believes it is well 

within the respondent’s power to do so, when judging the reliability of the movant’s 

assertions. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), 

LBP-02-2, 55 NRC 20, 30-31 (2002). If the evidence before the Board does not 

establish the absence of a genuine issue of material fact, then the motion must be 

HEARINGS 66 JUNE 2011
denied even if there is no opposing evidence. See Cleveland Elec. Illuminating Co.

(Perry Nuclear Power Plant, Units 1 & 2), ALAB-443, 6 NRC 741, 753-54 (1977). 

A summary disposition opponent is entitled to the favorable inferences that may be 

drawn from any evidence submitted. See Sequoyah Fuels Corp. and General Atomics

(Gore, Oklahoma Site Decontamination and Decommissioning Funding), LBP-94-17, 

39 NRC 359, 361 (1994), aff’d, CLI-94-11, 40 NRC 55 (1994); Vermont Yankee, 

LBP-06-5, 63 NRC at 121-22, citing Advanced Med. Sys., Inc., CLI-93-22, 

38 NRC at 102. The record and affidavits supporting and opposing the motion must be 

viewed in the light most favorable to the party opposing the motion. See Crest Auto 

Supplies, Inc. v. Ero Mfg. Co., 360 F.2d 896, 899 (7th Cir. 1966); United Mine Workers 

of Am., Dist. 22 v. Roncco, 314 F.2d 186, 188 (10th Cir. 1963); Pub. Serv. Co. of N.H.

(Seabrook Station, Units 1 & 2), LBP-74-36, 7 AEC 877, 878-79 (1974); Pa. Power & 

Light Co. (Susquehanna Steam Electric Station, Units 1 & 2), LBP-81-8, 13 NRC 335, 

337 (1981); La Crosse, LBP-82-58, 16 NRC at 519, citing Poller, 368 U.S. at 473; 

Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), LBP-85-27A, 

22 NRC 207, 208 (1985); Fla. Power & Light Co. (Turkey Point Nuclear Generating 

Plant, Units 3 & 4), LBP-85-29, 22 NRC 300, 310 (1985); Braidwood, LBP-86-12, 

23 NRC at 417; Houston Lighting and Power Co. (South Texas Project, Units 1 and 2), 

LBP-86-15, 23 NRC 595, 632 (1986); Pub. Serv. Co. of N.H. (Seabrook Station, 

Units 1 & 2), LBP-91-24, 33 NRC 446, 450 (1991), aff’d, CLI-92-8, 35 NRC 145 (1992). 

The party opposing summary disposition must make a sufficient showing of each 

element of the case on which it has the burden of proof. Tenn. Valley Auth. (Watts Bar 

Nuclear Plant, Unit 1; Sequoyah Nuclear Plant, Units 1 & 2; Browns Ferry Nuclear 

Plant, Units 1, 2, & 3), LBP-02-10, 55 NRC 236, 239 (2002), citing Celotex Corp. v. 

Catrett, 477 U.S. 317, 323 (1986). The quality of the evidence submitted at the 

summary disposition stage “is expected to be of a higher level than that at the 

contention filing stage.” Entergy Nuclear Generation Co. and Entergy Nuclear 

Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC __ 

(March 26, 2010) (slip op. at 36) (quoting Rules of Practice for Domestic Licensing 

Proceedings – Procedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 

33,171 (Aug. 11. 1989). 

A party opposing the motion may not rely on a simple denial of material facts stated by 

the movant but must set forth specific facts showing that there is a genuine issue. 

Bare assertions or general denials are insufficient. 10 C.F.R. § 2.710(b) (formerly 

§ 2.749(b)); Advanced Med. Sys., Inc., CLI-93-22, 38 NRC at 102; Private Fuel 

Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-02-8, 55 NRC 171, 

195 (2002); Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), 

LBP-02-2, 55 NRC 20, 30 (2002). The opposing party is not relieved from the 

responsibility, in the face of well-pled undisputed material facts, of providing something 

more than suspicions or bald assertions as the basis for any purported material factual 

disputes. See Seabrook, LBP-91-24, 33 NRC at 451; Advanced Med. Sys., Inc. (One 

Factory Row, Geneva, Ohio 44041), CLI-94-6, 39 NRC 285, 306-07 (1994), aff’d, 

Advanced Med. Sys., Inc. v. NRC, 61 F.3d 903 (6th Cir. 1995) (Table); Yankee Atomic 

Elec. Co. (Yankee Nuclear Power Station), LBP-96-18, 44 NRC 86, 92-93 (1996); 

Private Fuel Storage, L.L.C., LBP-99-35, 50 NRC 180, 194 (1999). For example, prior 

NRC inspection reports that conclude that at the time of an inspection there were no 

regulatory violations found do not in themselves raise a genuine issue of material fact. 

The failure by the NRC to detect a violation does not necessarily prove the negative 

JUNE 2011 HEARINGS 67
that no violation existed. The NRC inspectors are not omniscient, and limited NRC 

resources preclude careful review of all but a fraction of the licensed activity. 

Advanced Med. Sys., CLI-93-22, 38 NRC at 108. 

All material facts set forth in the motion and not adequately controverted by the 

response are deemed to be admitted. 10 C.F.R. § 2.710(a) (formerly § 2.749(a)); 

Perry, LBP-83-3, 17 NRC at 61; Long Island Lighting Co. (Shoreham Nuclear Power 

Station, Unit 1), LBP-87-26, 26 NRC 201, 212, 216 (1987); Pub. Serv. Co. of N.H.

(Seabrook Station, Units 1 & 2), ALAB-932, 31 NRC 371, 422-23 (1990); Advanced 

Med. Sys. (One Factory Row, Geneva, Ohio 44041), LBP-91-9, 33 NRC 212, 216 

& n.15, 218 (1991), aff’d, CLI-93-22, 38 NRC 98 (1993); Duke Cogema Stone & 

Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), LBP-05-4, 

61 NRC 71, 79 (2005). The opposing party must controvert any material fact properly 

set out in the statement of material facts that accompanies a summary disposition 

motion or the fact will be deemed admitted. Advanced Med. Sys., CLI-93-22, 

38 NRC at 102-03. 

If intervenors present evidence or argument that directly and logically challenges the 

basis for summary disposition, creating a genuine issue of fact for resolution by the 

Board, then summary disposition cannot be granted. On the other hand, if intervenors’ 

facts are fully and satisfactorily explained by other parties, without any direct conflict of 

evidence, then intervenors will have failed to show the presence of a genuine issue of 

material fact. However, after concluding the process of reviewing facts contained in 

the intervenor’s response, the Board must also examine the motion to see whether the 

movant’s unopposed findings of fact establish the basis for summary disposition. 

Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), LBP-82-114, 

16 NRC 1909, 1913 (1982). 

The fact that the NRC Staff may agree with the factual or technical positions of a 

party’s motion for summary disposition, either informally or in a formal document such 

as an SER, does not “resolve” the dispute or mean that there is no genuine issue of 

material fact in dispute. Vermont Yankee, LBP-06-5, 63 NRC at 124. 

A party which seeks to conduct discovery to respond to a summary disposition motion 

must file an affidavit which identifies the specific information it seeks to obtain and 

shows how that information is essential to its opposition to the summary disposition 

motion. Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), CLI-92-8, 35 NRC 145, 

152 (1992). 

3.5.4 Contents of Motions for/Responses to Summary Disposition 

The general requirements as to contents of motions for summary disposition and 

responses thereto are set out in 10 C.F.R. § 2.710 (formerly § 2.749). 

Under the NRC Rules of Practice, a motion for summary disposition must contain 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.” Dairyland Power Coop.

(La Crosse Boiling Water Reactor), LBP-82-58, 16 NRC 512, 520 (1982), citing

10 C.F.R. § 2.710(a) (formerly § 2.749(a)). Where such facts are properly presented 

and are not controverted, they are deemed to be admitted. La Crosse, LBP-82-58, 

16 NRC at 520; Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), 

HEARINGS 68 JUNE 2011
LBP-87-26, 26 NRC 201, 225 (1987), reconsid. denied, LBP-87-29, 26 NRC 302 

(1987); Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), ALAB-932, 

31 NRC 371, 422-23 (1990); Advanced Med. Sys. (One Factory Row, Geneva, Ohio 

44041), LBP-91-9, 33 NRC 212, 216 & n.15, 218 (1991); Ga. Power Co. (Vogtle 

Electric Generating Plant, Units 1 & 2) LBP-94-37, 40 NRC 288, 293-94 (1994), citing

Sacramento Mun. Util. Dist. (Rancho Seco Nuclear Generating Station), LBP-93-23, 

38 NRC 200, 239-40 (1993). See Fla. Power & Light Co. (Turkey Point Nuclear 

Generating Plant, Units 3 & 4), LBP-85-29, 22 NRC 300, 305 (1985). The failure of a 

party to file in its motion for summary disposition a separate statement of the “material 

facts as to which the moving party contends there is no genuine issue to be heard,” as 

required by 10 C.F.R. § 2.710(a) (formerly § 2.749(a)), while asserting in its reply that 

its statement of undisputed facts actually appears in its brief, is arguably a procedural 

defect that warrants denial of summary disposition. Tenn. Valley Auth. (Watts Bar 

Nuclear Plant, Unit 1; Sequoyah Nuclear Plant, Units 1 & 2; Browns Ferry Nuclear 

Plant, Units 1, 2, & 3), LBP-02-10, 55 NRC 236, 240 (2002). 

In opposing summary disposition by seeking to establish the existence of a genuine 

dispute regarding a material factual issue, a party must present sufficiently probative 

evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (evidence that is 

“merely colorable” or is “not significantly probative” will not preclude summary 

judgment); Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), LBP-96-18, 

44 NRC 86 n.9 (1996). Further, a party’s bald assertion, even when supported by an 

expert, will not establish a genuine material factual dispute. See United States v. 

Various Slot Machs. on Guam, 658 F.2d 697, 700 (9th Cir. 1981) (in the context of 

summary judgment motion, an expert must back up his opinion with specific facts). 

See also McGlinchy v. Shell Chem. Co., 845 F.2d 802, 807 (9th Cir. 1988) (expert’s 

study based on “unsupported assumptions and unsound extrapolation” cannot be used 

to support summary judgment motion); Yankee, LBP-96-18, 44 NRC at 103. 

Specifically, it would frequently be insufficient for an opponent to rely on quotations 

from or citations to the published work of researchers who have reached conclusions at 

variance with the movant’s affiants. Carolina Power & Light Co. (Shearon Harris 

Nuclear Plant, Units 1 & 2), LBP-84-7, 19 NRC 432, 436 (1984), reconsid. denied on 

other grounds, LBP-84-15, 19 NRC 837, 838 (1984). Where a licensee opposing 

summary disposition in an enforcement proceeding did not contest the occurrence of 

the essential facts contained in signed statements or reports of interviews of former 

licensee employees, general objections to the Staff’s reliance on such documents or 

bald assertions that the employees were “disgruntled” workers was insufficient to show 

a concrete, material issue of fact that would defeat summary disposition. Advanced 

Med. Sys., Inc. (One Factory Row, Geneva, Ohio 44041), CLI-94-6, 39 NRC 285, 

306-07 (1984), aff’d, Advanced Med. Sys., Inc. v. NRC, 61 F.3d 903 (6th Cir. 1995) 

(Table). 

A submission that is insufficient to show an absence of an issue of fact cannot premise 

a grant of summary judgment. Mere allegations and denials will not suffice; there must 

be a showing of genuine issues of fact. 10 C.F.R. § 2.710(b) (formerly § 2.749(b)); Va. 

Elec. & Power Co. (North Anna Nuclear Power Station, Units 1 & 2), ALAB-584, 

11 NRC 451 (1980); Houston Lighting & Power Co. (Allens Creek Nuclear Generating 

Station, Unit 1), ALAB-629, 13 NRC 75, 78 (1981); Pa. Power & Light Co.

(Susquehanna Steam Electric Station, Units 1 & 2), LBP-81-8, 13 NRC 335, 337 

(1981); Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), 

LBP-85-27A, 22 NRC 207, 229, 231 (1985); Commonwealth Edison Co. (Braidwood 

JUNE 2011 HEARINGS 69
Nuclear Power Station, Units 1 & 2), LBP-86-12, 23 NRC 414, 417 (1986); Gen. Pub. 

Util. Nuclear Corp. (Three Mile Island Nuclear Station, Unit 2), LBP-88-23, 

28 NRC 178, 182 (1988). See Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), 

LBP-88-31, 28 NRC 652, 662-65 (1988). An opponent’s allegation of missing 

information, without a showing of its materiality, is insufficient to defeat a motion for 

summary disposition. Kerr-McGee Chem. Corp. (West Chicago Rare Earths Facility), 

LBP-89-35, 30 NRC 677, 687-88 (1989), vacated and rev’d, ALAB-944, 33 NRC 81, 

140-48 (1991). 

In responding to a statement filed in support of a motion for summary disposition, a 

party who opposes the motion may only address new facts and arguments presented 

in the statement. The party may not raise additional arguments beyond the scope of 

the statement. Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), LBP-86-30, 

24 NRC 437, 439 n.1 (1986). 

With regard to affidavits in support of a motion for a summary disposition, a document 

submitted with a verified letter in which the attestation states that the person is “duly 

authorized to execute and file this information on behalf of the applicants” is not 

sufficient to make the document admissible into evidence pursuant to § 2.710(b) 

(formerly § 2.749(b)). An affidavit must be submitted by a person to show he is 

competent to testify to all matters discussed in the document. Cleveland Elec. 

Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), ALAB-443, 6 NRC 741, 755 

(1977). See Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 

& 4), ALAB-950, 33 NRC 492, 500-01 (1991). Although 10 C.F.R. § 2.710(b) (formerly 

§ 2.749(b)) does not expressly require that the affidavit be based on a witness’s 

personal knowledge of the material facts, a Board will require a witness to testify from 

personal knowledge in order to establish material facts which are legitimately in 

dispute. This requirement applies as well to expert witnesses who, although generally 

permitted to base their opinion testimony on hearsay, may only establish those material 

facts of which they have direct, personal knowledge. Braidwood, LBP-86-12, 

23 NRC at 418-419. 

Answers to interrogatories can be used to counter evidentiary material proffered in 

support of a motion for summary disposition, but only if they are made on the basis of 

personal knowledge, over facts that would be admissible as evidence, and are made 

by a respondent competent to testify to those facts. Pub. Serv. Co. of N.H. (Seabrook 

Station, Units 1 & 2), LBP-83-32A, 17 NRC 1170, 1175 (1983). 

The hearsay nature of an investigator’s interview report with a witness does not bar its 

consideration in deciding whether to grant summary disposition, particularly in the 

absence of any evidence suggesting the report’s inherent unreliability or any material 

objection to the statement of facts recounted in the interview report. Advanced Med. 

Sys., CLI-94-6, 39 NRC at 306-07. 

The NRC Staff’s subsequent decision to rescind an enforcement order does not 

constitute an admission that disputed facts remained regarding the sufficiency of the 

order when issued. Advanced Med. Sys., CLI-94-6, 39 NRC at 306. 

In an action challenging a civil penalty for violations of both the Commission’s 

regulations and the facility’s license condition, the Board held that prior NRC inspection 

reports that conclude that at the time of an inspection there were no regulatory 

HEARINGS 70 JUNE 2011
violations found do not in themselves raise a genuine issue of material fact. The failure 

by the NRC to detect a violation does not necessarily prove the negative that no 

violation existed. The NRC inspectors are not omniscient, and limited NRC resources 

preclude careful review of all but a fraction of the licensed activity. Advanced Med. 

Sys., Inc. (One Factory Row, Geneva, Ohio 44041), CLI-93-22, 38 NRC 98, 107-08 

(1993). 

In Gulf States, the Board concluded that the question of whether bankruptcy courts will 

adequately fund nuclear facilities to ensure safety constitutes a disputed factual 

question for which summary disposition is inappropriate. Gulf States Util. Co. (River 

Bend Station, Unit 1), LBP-95-10, 41 NRC 460, 471 (1995). 

For purposes of summary disposition, health effects contentions have been 

differentiated from other contentions. An opponent of summary disposition in the 

health effects area must have some new (post-1975) and substantial evidence that 

casts doubt on the Committee on the Biological Effects of Ionizing Radiation estimates. 

Furthermore, he must be prepared to present that evidence through qualified witnesses 

at the hearing. Shearon Harris, LBP-84-7, 19 NRC at 437, citing Pub. Serv. Co. of 

Okla. (Black Fox Station, Units 1 & 2), CLI-80-31, 12 NRC 264, 277 (1980). 

One possible answer to a motion for summary disposition is the assertion that 

discovery is needed to respond fully to the motion. See Pub. Serv. Co. of N.H.

(Seabrook Station, Units 1 & 2), CLI-92-8, 35 NRC 145, 152 (1992). Such a request 

generally should be made in a pleading supported by an affidavit. See id.; Gen. Pub. 

Util. Nuclear Corp. (Oyster Creek Nuclear Generating Station), LBP-96-23, 

44 NRC 166 n.20 (1996). The functional equivalent of such a filing may be the 

statements of counsel during a prehearing conference outlining the discovery needed 

to support the party’s case. Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), 

LBP-96-15, 44 NRC 8 (1996). 

A party that conducted discovery following the filing of the dispositive motion generally 

cannot interpose claims based on a lack of information as to the valid basis for a 

genuine material factual dispute. Yankee, LBP-96-18, 44 NRC at 101-02. 

3.5.5 Time for Filing Motions for Summary Disposition 

Summary disposition motions must be filed no later than twenty (20) days after the 

close of discovery. 10 C.F.R. § 2.710(a) (formerly § 2.749(a)). 

A Licensing Board convened solely to rule on petitions to intervene lacks the 

jurisdiction to consider filings going to the merits of the controversy. Consequently, 

such a Board cannot entertain motions for summary disposition. Pac. Gas & Elec. Co.

(Stanislaus Nuclear Project, Unit 1), ALAB-400, 5 NRC 1175, 1177-78 (1977). The 

filing of such motions must, therefore, await the appointment of a hearing board. 

In Consumers Power Co. (Big Rock Point Plant), LBP-82-8, 15 NRC 299, 336 (1982), 

the Board permitted late filing of affidavits in support of a motion for summary 

disposition where: (1) blizzard conditions and misunderstandings as to late filing 

requirements existed; (2) no serious delay in the proceedings resulted; and (3) the 

testimony and affidavits submitted were particularly helpful and directly relevant to the 

safety of the spent fuel pool amendment being sought. 

JUNE 2011 HEARINGS 71
10 C.F.R. § 2.710(d)(1) (formerly § 2.749) permits a Board to deny summarily motions 

for summary disposition which occur shortly before a hearing where the motion would 

require the diversion of the parties’ or the Board’s resources from preparation for the 

hearing. Regents of the Univ. of Cal. (UCLA Research Reactor), LBP-82-93, 

16 NRC 1391, 1393 (1982). 

A presiding officer typically will not consider a motion for summary disposition at the 

same time he is making a determination about the admissibility of a contention. 

Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), LBP-96-15, 44 NRC 8, 38 

(1996). 

3.5.6 Time for Filing Responses to Summary Disposition Motions 

Responses to motions for summary disposition must be filed within twenty (20) days 

after service of the motion. 10 C.F.R. § 2.710(a) (formerly § 2.749(a)). 

A party who seeks an extension of the time period for the filing of its response to a 

motion for summary disposition should not merely assert the existence of potential 

witnesses who might be persuaded to testify on its behalf. A party should provide 

some assurances that the potential witnesses will appear and will testify on pertinent 

matters. Ga. Power Co. (Alvin W. Vogtle Electric Generating Plant, Units 1 & 2), 

ALAB-872, 26 NRC 127, 143 (1987). See also Tex. Util. Elec. Co. (Comanche Peak 

Steam Electric Station, Units 1 & 2), LBP-85-32, 22 NRC 434, 436 (1985) (the 

Licensing Board extended the time period for the applicants’ response to an 

intervenor’s motion for summary disposition where the applicants, pursuant to a 

management plan to resolve design and quality assurance issues, were gathering 

information to establish the adequacy and safety of the plant). 

A movant for summary disposition is generally prohibited from filing a reply to another 

party’s answer to the motion. 10 C.F.R. § 2.710(a) (formerly § 2.749(a)). However, 

pursuant to its general authority under 10 C.F.R. § 2.319(g) (formerly § 2.718(e)), a 

Licensing Board may lift the prohibition if the movant can establish a compelling reason 

or need to file a reply. Long Island Lighting Co. (Shoreham Nuclear Power Station, 

Unit 1), LBP-87-26, 26 NRC 201, 204 (1987), reconsid. denied, LBP-87-29, 

26 NRC 302 (1987). See Fla. Power & Light Co. (Turkey Point Nuclear Generating 

Plant, Units 3 & 4), ALAB-950, 33 NRC 492, 499-500 (1991). Cf. Entergy Nuclear 

Vermont Yankee, L.L.C. (Vermont Yankee Nuclear Power Station), LBP-06-5, 

63 NRC 116, 123 n.10 (2006) (pursuant to 10 C.F.R. § 2.323(c), although there is no 

right of reply to an answer to a motion for summary disposition, if such an answer 

included a plainly and factually incorrect allegation, the moving party could request an 

opportunity to respond and to correct the record). 

3.5.7 Role/Power of Licensing Board in Ruling on Summary Disposition Motions 

With the consent of the parties, the Board may adopt a somewhat more lenient 

standard for granting summary disposition than is provided under 10 C.F.R. § 2.710 

(formerly § 2.749). For example, the Board may grant summary disposition whenever 

it decides that it can arrive at a reasonable decision without benefit of a hearing. That 

test would permit the Board to grant summary disposition under some circumstances in 

which it would otherwise be required to find that there is a genuine issue of fact 

HEARINGS 72 JUNE 2011
requiring trial. Tex. Util. Elec. Co. (Comanche Peak Steam Electric Station, Units 1 

& 2), LBP-84-25, 19 NRC 1589, 1591 (1984). 

The proponent of the motion must still meet its burden of proof to establish the 

absence of a genuine issue of material fact. Cleveland Elec. Illuminating Co. (Perry 

Nuclear Power Plant, Units 1 & 2), ALAB-443, 6 NRC 741, 753-54 (1977); Pa. Power & 

Light Co. (Susquehanna Steam Electric Station, Units 1 & 2), LBP-81-8, 13 NRC 335, 

337 (1981); Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), 

LBP-85-27A, 22 NRC 207, 208 (1985); Fla. Power & Light Co. (Turkey Point Nuclear 

Generating Plant, Units 3 & 4), LBP-85-29, 22 NRC 300, 310 (1985); Houston Lighting 

& Power Co. (South Texas Project, Units 1 & 2), LBP-86-15, 23 NRC 595, 633 (1986). 

The Board’s function, based on the filing and supporting material, is simply to 

determine whether genuine issues exist between the parties. It has no role to decide 

or resolve such issues at this stage of the proceeding. The parties opposing such 

motions may not rest on mere allegations or denials, and facts not controverted are 

deemed to be admitted. Since the burden of proof is on the proponent of the motion, 

the evidence submitted must be construed in favor of the party in opposition thereto, 

who receives the benefit of any favorable inferences that can be drawn. Sequoyah 

Fuels Corp. (Gore, Oklahoma Site Decontamination & Decommissioning Funding), 

LBP-94-17, 39 NRC 359, 361 (1994). 

When conflicting expert opinions are involved, summary disposition is rarely 

appropriate. Entergy Nuclear Vermont Yankee, L.L.C. (Vermont Yankee Nuclear 

Power Station), LBP-06-5, 63 NRC 116, 122 (2006), citing, e.g., Phillips v. Cohen, 

400 F.3d 388, 399 (6th Cir. 2005). Differences among experts may occur at different 

factual levels: either about disputed baseline observations, or about the ultimate facts 

or inferences to be drawn even where baseline facts may be uncontested. Vermont 

Yankee, LBP-06-5, 63 NRC at 122, citing Private Fuel Storage (Independent Spent 

Fuel Storage Installation), LBP-01-39, 54 NRC 497, 509 (2001). Factual disputes of 

this nature are to be resolved at an evidentiary hearing, where the Board has the 

opportunity to examine witnesses, probe the documents, and weigh the evidence. 

Vermont Yankee, LBP-06-5, 63 NRC at 122. However, this rule would not apply if an 

expert asserts a factual and technical position that is so patently incorrect or absurd 

(e.g., that the world is flat) that a presiding officer must reject that position as 

constituting a genuine dispute. Id. at 125 n.13. 

When a trial court considers a motion for summary disposition involving conflicting 

expert testimony, the court must focus on each opinion’s “principles and methodology” 

to ensure it is sufficiently grounded in factual basis, but it is not the court’s role to 

determine which experts are more correct. Private Fuel Storage, L.L.C. (Independent 

Spent Fuel Storage Installation), LBP-01-39, 54 NRC 497, 510 (2001), citing

Kannankeril v. Terminix Int’l, 128 F.3d 802, 807 (3d Cir. 1997); Norfolk Southern Corp. 

v. Oberly, 632 F.Supp. 1225, 1243 (D. Del. 1986), aff’d on other grounds, 822 F.2d 388 

(3d Cir. 1987); Vermont Yankee, LBP-06-5, 63 NRC at 122. The above holdings apply 

to the Licensing Boards, even though the Boards have the dual function of ruling on 

summary disposition motions and then becoming the trier of fact. This dual role does 

not allow Licensing Boards to combine both functions in one step. Private Fuel 

Storage, LBP-01-39, 54 NRC at 510. 

The Board may not dictate to any party the manner in which it presents its case. The 

Board may not substitute its judgment for the parties on the merits of their cases in 

order to summarily dismiss their motions; rather, it must deal with the motions on the 

JUNE 2011 HEARINGS 73
merits before reaching a conclusion. Regents of the Univ. of Cal. (UCLA Research 

Reactor), LBP-82-93, 16 NRC 1391, 1394, 1395 (1982). 

A presiding officer need consider only those purported factual disputes that are 

“material” to the resolution of the issues raised in a summary disposition motion. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (factual disputes that are 

“irrelevant or unnecessary” will not preclude summary judgment); Yankee Atomic Elec. 

Co. (Yankee Nuclear Power Station), LBP-96-18, 44 NRC 86, 99 (1996). 

In an interesting approach seeking to avoid relitigation of matters considered in a prior 

proceeding concerning the same reactor, a Licensing Board invited motions for 

summary disposition which rely on the record of the prior proceeding. In response, the 

intervenor was expected to indicate why the prior record was inadequate and why 

further proceedings might be necessary. The Licensing Board planned to take official 

notice of the record in the prior proceeding and render a decision as to whether further 

evidentiary hearings were necessary. Gen. Elec. Co. (GETR Vallecitos), LBP-85-4, 

21 NRC 399, 408 (1985). 

Where the existing record is insufficient to allow summary disposition, it is not improper 

for a Licensing Board to request submission of additional documents which it knows 

would support summary disposition and to consider such documents in reaching a 

decision on a summary disposition motion. Perry, ALAB-443, 6 NRC at 752. 

When summary disposition is requested before discovery is completed, the Board may 

deny the request either upon a showing of the existence of a genuine issue of material 

fact or upon a showing that there is good reason for the Board to defer judgment until 

after specific discovery requests are made and answered. Wis. Elec. Power Co. (Point 

Beach Nuclear Plant, Units 1 & 2), LBP-81-55, 14 NRC 1017, 1021 (1981). 

A summary disposition decision that an allegation presents no genuine issue of fact 

may preclude admission of a subsequent, late-filed contention based on the same 

allegation. Consumers Power Co. (Big Rock Point Plant), LBP-82-19B, 15 NRC 627, 

631-32 (1982). 

In dicta, a Board commented that it is an abuse of the adjudicatory process to use a 

motion for summary disposition as a subterfuge for the filing of interrogatories, 

requests for admission, or other discovery (which are generally not permitted in 

Subpart L proceedings); as a mechanism for exhausting an impecunious litigant; or for 

any other extraneous purpose. Vermont Yankee, LBP-06-5, 63 NRC at 128 n.15. 

3.5.7.1 Operating License Hearings 

A Board may grant summary disposition as to all or any part of the matters involved 

in an operating license proceeding. Houston Lighting & Power Co. (South Texas 

Project, Units 1 & 2), LBP-86-15, 23 NRC 595, 634 (1986), citing

10 C.F.R. § 2.710(a) (formerly § 2.749(a)). 

In an operating license proceeding, where significant health and safety or 

environmental issues are involved, a Licensing Board should grant a motion for 

summary disposition only if it is convinced from the material filed that the public 

health and safety or the environment will be satisfactorily protected. 

HEARINGS 74 JUNE 2011
10 C.F.R. § 2.340 (formerly § 2.760a); Cincinnati Gas & Elec. Co.

(William H. Zimmer Nuclear Station), LBP-81-2, 13 NRC 36, 40-41 (1981), citing

Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), 

ALAB-443, 6 NRC 741 (1977); South Texas, LBP-86-15, 23 NRC at 633. 

In an operating license proceeding, summary disposition on safety issues should not 

be considered or granted until after the Staff’s SER and the ACRS letter have been 

issued. Duke Power Co. (William B. McGuire Nuclear Station, Units 1 & 2), 

LBP-77-20, 5 NRC 680, 681 (1977). 

3.5.7.2 Construction Permit Hearings 

While, as a general rule, summary disposition can be granted in nearly any 

proceeding as to nearly any matter for which there is no genuine issue of material 

fact, there is an exception under the NRC Rules of Practice. In construction permit 

hearings, summary disposition may not be used to determine the ultimate issue as 

to whether the construction permit will be granted. 10 C.F.R. § 2.710(d) (formerly 

§ 2.749(d)). See Puerto Rico Elec. Power Auth. (North Coast Nuclear Plant, Unit 1), 

LBP-80-15, 11 NRC 765, 767 (1980), rev’d on other grounds, ALAB-605, 

12 NRC 153 (1980). 

The limitation on summary disposition in a construction permit proceeding does not 

apply in a construction permit amendment proceeding. Summary disposition may 

be granted in a construction permit amendment proceeding where there is no 

genuine issue as to any material fact that warrants a hearing and the moving party 

is entitled to a decision in its favor as a matter of law. Wash. Pub. Power Supply 

Sys. (WPPSS Nuclear Project No. 1), ALAB-771, 19 NRC 1183, 1188 & n.14 

(1984). 

3.5.7.3 Amendments to Existing Licenses 

Summary disposition may be used in license amendment proceedings where a 

hearing is held with respect to the amendment. Boston Edison Co. (Pilgrim Nuclear 

Station, Unit 1), ALAB-191, 7 AEC 417 (1974). See, e.g., Pub. Serv. Elec. & Gas 

Co. (Salem Nuclear Generating Station, Unit 1), LBP-79-14, 9 NRC 557, 566-67 

(1979); Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), 

LBP-85-29, 22 NRC 300, 310 (1985). 

3.5.8 Summary Disposition: Mootness 

Where a contention challenges an omission by an applicant, and the applicant has 

since remedied this omission through responses to a Staff request for additional 

information (RAI), summary disposition of the contention on mootness grounds is 

appropriate. Exelon Generation Co. (Early Site Permit for Clinton ESP Site), 

LBP-05-19, 62 NRC 134, 182 (2005). 

When summary disposition is being sought based on a contention’s mootness in light 

of revised information submitted by an applicant in response to an NRC Staff RAI, a 

summary disposition motion is not premature because the information was not 

incorporated into a license application amendment until after the disposition motion 

was filed. Regardless of the situation prior to the submission of the application 

JUNE 2011 HEARINGS 75
amendment, given that there is no material dispute that the application currently 

contains RAI information, nothing precludes the entry of summary disposition. Private 

Fuel Storage, LLC (Independent Spent Fuel Storage Installation), LBP-99-23, 

49 NRC 485, 493 (1999). 

When summary disposition is being sought based on a contention’s mootness in light 

of revised information submitted by the applicant, a challenge to the validity of the 

revised information does not support the notion there is a controversy, factual or 

otherwise, regarding the existing contention so that summary disposition is 

inappropriate; instead, this is an argument in favor of a new contention. Private Fuel 

Storage, LBP-99-23, at 493. 

3.5.9 Contents of Summary Disposition Order 

In granting summary judgment, the Licensing Board should set forth the legal and 

factual bases for its action. Where it has not, the record will be examined to see if 

there are any genuine issues. Va. Elec. & Power Co. (North Anna Nuclear Power 

Station, Units 1 & 2), ALAB-584, 11 NRC 451, 453 n.4 (1980). 

An evidentiary hearing would be necessary only if a genuine issue of material fact were 

in dispute. Advanced Med. Sys., Inc. (One Factory Row, Geneva, Ohio 44041), 

CLI-93-22, 38 NRC 98, 119-20 (1993). 

3.5.10 Appeals from Rulings on Summary Disposition 

As is the case under Rule 56 of the Federal Rules, a denial of a motion for summary 

disposition is interlocutory and, therefore, not appealable. La. Power & Light Co.

(Waterford Steam Electric Generating Station, Unit 3), ALAB-220, 8 AEC 93 (1974); 

Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), 

LBP-85-29, 22 NRC 300, 331 (1985). This applies as well to denials of partial 

summary disposition. Pa. Power & Light Co. (Susquehanna Steam Electric Station, 

Units 1 & 2), ALAB-641, 13 NRC 550, 551 (1981), citing Waterford, ALAB–220, 

8 AEC at 94. 

An order granting summary disposition of an intervenor’s sole contention is not 

interlocutory, since the consequence is intervenor’s dismissal from the proceeding. As 

such, it is immediately appealable. Houston Lighting & Power Co. (Allens Creek 

Nuclear Generating Station, Unit 1), ALAB-629, 13 NRC 75, 77 n.2 (1981). However, 

an order summarily dismissing some, but not all, of an intervenor’s contentions and 

which does not have the effect of dismissing the intervenor from the proceeding is 

interlocutory in nature and an appeal must await the issuance of an initial decision. 

Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), ALAB-736, 

18 NRC 165 (1983); Metro. Edison Co. (Three Mile Island Nuclear Station, Unit 1), 

ALAB-807, 21 NRC 1195, 1198 n.3 (1985); Turkey Point, LBP-85-29, 22 NRC at 331. 

Where a Licensing Board has not set forth the legal and factual basis for its action on a 

summary judgment motion, the Appeal Board will examine the record to see if there 

are any genuine issues. Va. Elec. & Power Co. (North Anna Nuclear Power Station, 

Units 1 & 2), ALAB-584, 11 NRC 451, 453 n.4 (1980). 

HEARINGS 76 JUNE 2011
Reluctance to certify a Licensing Board’s summary disposition decision to the 

Commission, claiming that it is a ruling as a matter of law, is outweighed by both the 

fact that there are often factual elements and also the Commission’s admonition that 

“boards are encouraged to certify novel legal or policy questions relating to admitted 

issues to the Commission as early as possible in the proceeding.” Private Fuel 

Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-00-6, 51 NRC 101, 

136 (2000), quoting Statement of Policy on Conduct of Adjudicatory Proceedings, 

CLI-98-12, 48 NRC 18, 23 (1998). 

3.6 Other Dispositive Motions/Failure to State a Claim

The Commission’s Rules of Practice make no provision for motions for orders of dismissal 

for failing to state a legal claim. However, the Federal Rules of Civil Procedure do in 

Rule 12(b)(6), and Licensing Boards occasionally look to federal cases interpreting that 

rule for guidance. In the consideration of such dismissal motions, which are not generally 

viewed favorably by the courts, all factual allegations of the complaint are to be 

considered true and to be read in a light most favorable to the nonmoving party. 

Sequoyah Fuels Corp. (Gore, Oklahoma Site Decontamination & Decommissioning 

Funding), LBP-94-17, 39 NRC 359, 365 (1994). 

3.7 Attendance at and Participation in Hearings

An intervenor may not step in and out of participation in a particular issue at will. Northern 

States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-288, 

2 NRC 390, 393 (1975). According to one Licensing Board, an intervenor who raises an 

issue and then refuses to actively participate in the hearing may lose his right to appeal 

the Licensing Board’s decision. Boston Edison Co. (Pilgrim Nuclear Generating Station, 

Unit 2), LBP-76-7, 3 NRC 156 (1976). See Ga. Power Co. (Alvin W. Vogtle Electric 

Generating Plant, Units 1 & 2), ALAB-851, 24 NRC 529, 530 (1986), citing Consumers 

Power Co. (Midland Plant, Units 1 & 2), ALAB-691, 16 NRC 897, 907 (1982), rev. 

declined, CLI-83-2, 17 NRC 69 (1983). A party’s total failure to assume a significant 

participational role in a proceeding (e.g., his failure to appear at hearings and to file 

proposed findings), at least in combination with other factors militating against his being 

retained as a party, will, upon motion of another party, result in his dismissal from the 

proceeding. Gulf States Util. Co. (River Bend Station, Units 1 & 2), ALAB-358, 

4 NRC 558, 560 (1976). 

If an intervenor “walks out” of a hearing, it is nevertheless proper for the Licensing Board 

to proceed in his absence. 10 C.F.R. § 2.320(b) (formerly § 2.707(b)); Northern Ind. Pub. 

Serv. Co. (Bailly Generating Station, Nuclear-1), ALAB-224, 8 AEC 244, 251 (1975). The 

best practice in such a situation is for the Board to make thorough inquiry as to the issues 

raised by the absent intervenor despite his absence. La. Power & Light Co. (Waterford 

Steam Electric Station, Unit 3), ALAB-242, 8 AEC 847, 849 (1974). 

A party seeking to be excused from participation in a prehearing conference should 

present its justification in a request presented before the date of the conference. Pub. 

Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), ALAB-488, 8 NRC 187, 191 (1978). 

The appropriate sanction for willful refusal to attend a prehearing conference is dismissal 

of the petition for intervention. In the alternative, an appropriate sanction is the 

acceptance of the truth of all statements made by the applicant or the Staff at the 

JUNE 2011 HEARINGS 77
prehearing conference. Wis. Elec. Power Co. (Point Beach Nuclear Plant, Unit 1), 

LBP-82-108, 16 NRC 1811, 1817 (1982). 

Where an intervenor indicates its intention not to participate in the evidentiary hearing, the 

intervenor may be held in default and its admitted contentions dismissed, although the 

Licensing Board will review those contentions to assure that they do not raise serious 

matters that must be considered. Boston Edison Co. (Pilgrim Nuclear Generating Station, 

Unit 2), LBP-76-7, 3 NRC 156, 157 (1976). See Pub. Serv. Co. of N.H. (Seabrook 

Station, Units 1 & 2), LBP-90-12, 31 NRC 427, 429-31 (1990), aff’d in part, ALAB-934, 

32 NRC 1 (1990). 

Where an issue is remanded to the Licensing Board and a party did not previously 

participate in consideration of that issue, submitting no contentions, evidence or proposed 

findings on it and taking no exceptions to the Licensing Board’s disposition of it, the 

Licensing Board is fully justified in excluding that party from participation in the remanded 

hearing on that issue. Status as a party does not carry with it a license to step in and out 

of consideration of issues at will. Pub. Serv. Co. of Ind. (Marble Hill Nuclear Generating 

Station, Units 1 & 2), ALAB-493, 8 NRC 253, 268-69 (1978). 

A participant in an NRC proceeding should anticipate having to manipulate its resources, 

however limited, to meet its obligations. Wis. Elec. Power Co. (Point Beach Nuclear 

Plant, Unit 1), ALAB-719, 17 NRC 387, 394 (1983), citing Wis. Elec. Power Co. (Point 

Beach Nuclear Plant, Units 1 & 2), ALAB-666, 15 NRC 277, 279 (1982); Philadelphia 

Elec. Co. (Peach Bottom Atomic Power Station, Units 2 & 3), ALAB-566, 10 NRC 527, 

530 (1979); Gen. Pub. Util. Nuclear Corp. (Three Mile Island Nuclear Station, Unit 1), 

LBP-86-14, 23 NRC 553, 559 (1986).

3.8 Burden and Means of Proof

A licensee generally bears the ultimate burden of proof. Metro. Edison Co. (Three Mile 

Island Nuclear Station, Unit 1), ALAB-697, 16 NRC 1265, 1271 (1982), citing

10 C.F.R. § 2.325 (formerly § 2.732). This is also true for a Part 2, Subpart K proceeding. 

Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), LBP-00-12, 

51 NRC 247, 254-55 (2000). But intervenors must give some basis for further inquiry. 

Three Mile Island, ALAB-697, 16 NRC at 1271. 

The ultimate burden of proof in a licensing proceeding on the question of whether a permit 

or license should be issued is upon the applicant. But where one of the other parties to 

the proceeding contends that, for a specific reason, the permit or license should be 

denied, that party has the burden of going forward with evidence to buttress that 

contention. Once the party has introduced sufficient evidence to establish a prima facie

case, the burden then shifts to the applicant, which as part of its overall burden of proof, 

must provide a sufficient rebuttal to satisfy the Board that it should reject the contention as 

a basis for denial of the permit or license. La. Power & Light Co. (Waterford Steam 

Electric Station, Unit 3), ALAB-732, 17 NRC 1076, 1093 (1983), citing Consumers Power 

Co. (Midland Plant, Units 1 & 2), ALAB-123, 6 AEC 331, 345 (1973); La. Power & Light 

Co. (Waterford Steam Electric Station, Unit 3), ALAB-812, 22 NRC 5, 56 (1985). See

Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-315, 3 NRC 101, 103 (1976); 

Gen. Pub. Util. Nuclear Corp. (Three Mile Island Nuclear Station, Unit 2), ALAB-926, 

31 NRC 1, 15-16 (1990). 

HEARINGS 78 JUNE 2011
Government entities have the same burdens in proving their cases in NRC licensing 

proceedings as private entities. Ga. Inst. of Tech. (Georgia Tech Research Reactor, 

Atlanta, Georgia), LBP-97-7, 45 NRC 265, 271 (1997). 

Where the Licensing Board directed an intervenor to proceed with its case first because of 

the intervenor’s failure to comply with certain discovery requests and Board orders, the 

alteration in the order of presentation did not shift the burden of proof. That burden has 

been and remains on the licensee. Metro. Edison Co. (Three Mile Island Nuclear Station, 

Unit 1), ALAB-772, 19 NRC 1193, 1245 (1984), rev’d in part on other grounds, CLI-85-2, 

21 NRC 282 (1985). 

Under Commission practice, the applicant for a construction permit or operating license 

always has the ultimate burden of proof. 10 C.F.R. § 2.325 (formerly § 2.732). The 

degree to which he must persuade the Board (burden of persuasion) should depend upon 

the gravity of the matters in controversy. Va. Elec. & Power Co. (North Anna Power 

Station, Units 1, 2, 3 & 4), ALAB-256, 1 NRC 10, 17, n.18 (1975). 

An applicant has the burden of proof to demonstrate that the offsite emergency plan 

complies with Commission rules and guidance. The burden must be carried whether or 

not the applicant is primarily responsible for carrying out a particular aspect of the plan. 

Consumers Power Co. (Big Rock Point Plant), LBP-82-77, 16 NRC 1096, 1099 (1982), 

citing 10 C.F.R. § 2.325 (formerly § 2.732). 

An applicant has the burden of proving, prior to the issuance of a full-power license, that 

there is reasonable assurance that adequate protective measures can and will be taken in 

an emergency. Philadelphia Elec. Co. (Limerick Generating Station, Units 1 & 2), 

ALAB-836, 23 NRC 479, 518 (1986), citing 10 C.F.R. § 50.47(a)(1). However, an 

applicant is not required to prove and reprove essentially unchallenged factual elements 

of its case. An intervenor may not merely assert a need for more current information 

without having raised any questions concerning the accuracy of the applicant’s submitted 

facts. Philadelphia Elec. Co. (Limerick Generating Station, Units 1 & 2), ALAB-857, 

25 NRC 7, 13 (1987). 

The applicant must demonstrate that it satisfies the “reasonable assurance standard” by a 

preponderance of the evidence. “Reasonable assurance” “is not susceptible to formalistic 

quantification or mechanistic application. Rather, whether the reasonable assurance 

standard is met is based upon sound technical judgment applied on a case-by-case 

basis.” Compliance with the Commission’s regulations is a touchstone for reasonable 

assurance. AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), 

LBP-07-17, 66 NRC 327, 340 (2007), aff’d, CLI-09-07, 69 NRC 235, 263 (2009) (rejecting 

an argument that reasonable assurance should be quantified with 95% confidence). 

There is some authority to the effect that in show cause proceedings for modification of a 

construction permit, the burden of going forward is on the Staff or intervenor who is 

seeking the modification since such party is the “proponent of an order.” Consumers 

Power Co. (Midland Plant, Units 1 & 2), LBP-74-54, 8 AEC 112 (1974). 

With respect to motions, the moving party has the burden of proving that the motion 

should be granted and he must present information tending to show that allegations in 

support of his motion are true. Consol. Edison Co. of N.Y. (Indian Point Nuclear 

Generating Units 1, 2 & 3), CLI-77-2, 5 NRC 13 (1977). 

JUNE 2011 HEARINGS 79
The movant challenging a Staff determination to make an enforcement order immediately 

effective bears the burden of going forward to demonstrate that the order, and the Staff’s 

determination that it is necessary to make the order immediately effective, are not 

supported by “adequate evidence” within the meaning 10 C.F.R. § 2.202(c)(2)(i), but the 

Staff has the ultimate burden of persuasion on whether this standard has been met. East. 

Testing & Inspection, Inc., LBP-96-9, 43 NRC 211, 215-16 (1996), citing

55 Fed. Reg. 27,645, 27,646 (1990); St Joseph Radiology Assocs., Inc., LBP-92-34, 

36 NRC 317, 321-22 (1992); Aharon Ben-Haim, Ph.D. (Upper Montclair, New Jersey), 

LBP-97-15, 46 NRC 60, 61 (1997). See Section 5.7.5. 

The general rule that the applicant carries the burden of proof does not apply with regard 

to alternate site considerations. For alternate sites, the burden of proof is on the Staff and 

the applicant’s evidence in this regard cannot substitute for an inadequate analysis by the 

Staff. Boston Edison Co. (Pilgrim Nuclear Generating Station, Unit 2), ALAB-479, 

7 NRC 774, 794 (1978). 

The applicant carries the burden of proof on safety issues. Duke Power Co. (Catawba 

Nuclear Station, Units 1 & 2), CLI-83-19, 17 NRC 1041, 1048 (1983), citing Consumers 

Power Co. (Midland Plant, Units 1 & 2), ALAB-283, 2 NRC 11, 17 (1975). 

An applicant who challenges the Staff’s denial of his application for an operator’s license 

has the burden of proving that the Staff incorrectly graded or administered the operator 

examination. If the applicant establishes a prima facie case that the Staff acted 

incorrectly, then the burden of going forward with evidence shifts to the Staff. 

Alfred J. Morabito (Senior Operator License for Beaver Valley Power Station, Unit 1), 

LBP-87-23, 26 NRC 81, 84 (1987). 

Applicants for a certificate of registration for a sealed source using cesium-137 chloride in 

caked powder form for proposed use in an irradiator held to be governed by 

10 C.F.R. Part 36 must meet its burden of proof by a preponderance of the evidence. See

Philadelphia Elec. Co. (Limerick Generating Station, Units 1 & 2), ALAB-819, 

22 NRC 681, 720 (1985); Hydro Res., Inc., LBP-99-30, 50 NRC 77, 100 (1999); Graystar, 

Inc., LBP-01-7, 53 NRC 168, 180 (2001). 

3.8.1 Duties of Applicant/Licensee 

A licensee of a nuclear power plant has a great responsibility to the public, one that is 

increased by the Commission’s heavy dependence on the licensee for accurate and 

timely information about the facility and its operation. Metro. Edison Co. (Three Mile 

Island Nuclear Station, Unit 1), ALAB-772, 19 NRC 1193, 1208 (1984), rev’d in part on 

other grounds, CLI-85-2, 21 NRC 282 (1985); La. Power & Light Co. (Waterford Steam 

Electric Station, Unit 3), ALAB-812, 22 NRC 5, 48, 51 (1985). 

The NRC is dependent upon all of its licensees for accurate and timely information. 

The licensee must have a detailed knowledge of the quality of installed plant 

equipment. Petition for Emergency & Remedial Action, CLI-80-21, 11 NRC 707, 712 

(1980); Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-691, 16 NRC 897, 

910 (1982), citing Petition for Emergency & Remedial Action, CLI-78-6, 7 NRC 400, 

418 (1978); Tenn. Valley Auth. (Browns Ferry Nuclear Plant, Units 1, 2 & 3), 

ALAB-677, 15 NRC 1387 (1982). 

HEARINGS 80 JUNE 2011
In general, if a party has doubts about whether to disclose information, it should do so, 

as the ultimate decision with regard to materiality is for the decisionmaker, not the 

parties. Midland, ALAB-691, 16 NRC at 914. 

The ultimate burden of persuasion rests with applicant and with NRC Staff to extent 

Staff supports the applicant’s position. Parties saddled with this burden typically 

proceed first and then have the right to rebut the case presented by their adversaries. 

Philadelphia Elec. Co. (Peach Bottom Atomic Power Station, Units 2 & 3), ALAB-566, 

10 NRC 527, 529 (1979). Because the licensee, rather than the Staff, bears the 

burden of proof in a licensing proceeding, the adequacy of the Staff’s safety review is, 

in the final analysis, not determinative of whether the application should be approved. 

Consequently, it would be pointless for the presiding officer to rule upon the adequacy 

of the Staff’s review. Curators of Univ. of Mo., CLI-95-1, 41 NRC 71, 121 (1995). 

3.8.2 Intervenor’s Contentions – Burden and Means of Proof 

It has long been held that an intervenor has the burden of going forward, either by 

direct evidence or by cross-examination, as to issues raised by his contentions. 

Philadelphia Elec. Co. (Limerick Generating Station, Units 1 & 2), ALAB-262, 

1 NRC 163, 191 (1975); Maine Yankee Atomic Power Co. (Maine Yankee Atomic 

Power Station), ALAB-161, 6 AEC 1003, 1008, reconsid. denied, ALAB-166, 

6 AEC 1148 (1973), remanded on other grounds, CLI-74-2, 7 AEC 2, aff’d, ALAB-175, 

7 AEC 62 (1974); Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-123, 

6 AEC 331, 345 (1973); Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), 

LBP-83-20A, 17 NRC 586, 589 (1983). 

Where an intervenor raises a particular contention challenging a licensee’s ability to 

operate a nuclear power plant in a safe manner, the intervenor necessarily assumes 

the burden of going forward with the evidence to support that contention. Metro. 

Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-772, 19 NRC 1193, 1245 

(1984), rev’d in part on other grounds, CLI-85-2, 21 NRC 282 (1985). 

An intervenor must come forward with sufficient evidence to require reasonable minds 

to inquire further, and it has an obligation to reveal pursuant to a discovery request 

what the evidence is. That requirement is not obviated by an intervenor’s strategic 

choice to make its case through cross-examination. Seabrook, LBP-83-20A, 

17 NRC at 589. 

This requirement has, on occasion, been questioned by the courts in those situations in 

which the information is in the hands of the Staff or applicant. See, e.g., York Comm. 

for a Safe Env’t v. NRC, 527 F.2d 812, 815 n.12 (D.C. Cir. 1975). 

The scope of the “burden of going forward” rule has also been questioned by the 

courts. In Aeschliman v. NRC, 547 F.2d 622, 628 (D.C. Cir, 1976), the Court of 

Appeals indicated that an intervenor, in commenting on a draft EIS, need only bring 

sufficient attention to an issue “to stimulate the Commission’s consideration of it” in 

order to trigger a requirement that the NRC consider whether the issue should receive 

detailed treatment in an EIS. The court stated that this test does not support the 

imposition of the burden of an affirmative evidentiary showing. Id. at n.13. Aeschliman

was reversed in this regard by the U.S. Supreme Court in Vermont Yankee Nuclear 

Power Corp. v. NRDC, 435 U.S. 519 (1978). Therein, the Court held that it is 

JUNE 2011 HEARINGS 81
“incumbent upon intervenors who wish to participate to structure their participation so 

that it is meaningful, so that it alerts the agency to the intervenors’ position and 

contentions.” Id. at 553. The Court found that the NRC's use of “a threshold test,” 

requiring intervenors to make a “showing sufficient to require reasonable minds to 

inquire further,” was well within the agency’s discretion. Id. at 554. See Pa. Power & 

Light Co. (Susquehanna Steam Electric Station, Units 1 & 2), ALAB-693, 16 NRC 952, 

957 (1982), citing Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 553 

(1978). 

While the outlines of an intervenor’s burdens with respect to its contentions may not be 

fully defined, it is clear that the Commission’s rules do not preclude an intervenor from 

building its case defensively, on the basis of cross-examination. Tenn. Valley Auth.

(Hartsville Nuclear Plant, Units 1A, 2A, 1B, & 2B), ALAB-463, 7 NRC 341, 356 (1978); 

Commonwealth Edison Co. (Zion Station, Units 1 & 2), ALAB-226, 8 AEC 381, 389 

(1974); Wis. Elec. Power Co. (Point Beach Nuclear Plant, Unit 2), ALAB-137, 

6 AEC 491, 504-05 (1973). 

The “threshold test,” restored by the Supreme Court in Vermont Yankee,, 

435 U.S. at 553, goes only to the matter of the showing necessary to initiate an inquiry 

into a specific alternative which an intervenor (or prospective intervenor) thinks should 

be explored, and not to the placement of the burden of proof once such an inquiry 

actually has been undertaken in an adjudicatory context. Pub. Serv. Co. of N.H.

(Seabrook Station, Units 1 & 2), ALAB-471, 7 NRC 477, 489 n.8 (1978). 

In Wis. Elec. Power Co. (Point Beach Nuclear Plant, Units 1 & 2), LBP-82-10, 

15 NRC 341, 344 (1982), the Board required intervenors to file a motion concerning 

litigable issues, by which the burden of going forward on summary disposition (but not 

the burden of proof) was placed on the intervenors. However, applicant and Staff 

would have to respond and intervenors reply. Thereafter, the standard for summary 

disposition would be the same as required under the rules. This special procedure was 

appropriate because time pressures had caused the Board to apply a lax standard for 

admission of contentions, depriving applicants of full notice of the contentions in the 

proceeding, and because applicants had already shown substantial grounds for 

summary disposition of all contentions in the course of a hearing that had already been 

completed. The motion for litigable issues was intended to parallel the motion for 

summary disposition in all but one respect – that intervenor was required to file first 

and to come forward with evidence indicating the existence of genuine issues of fact 

before applicant had to file a summary disposition motion. Applicant retained the 

burden of proof demonstrating the absence of genuine issues of fact, just as it would if 

it had originated the summary disposition process by its own motion. Wis. Elec. Power 

Co. (Point Beach Nuclear Plant, Units 1 & 2), LBP-82-88, 16 NRC 1335, 1339 (1982). 

3.8.3 Specific Issues – Means of Proof 

3.8.3.1 Exclusion Area Controls 

The applicant must demonstrate constant total control of the entire exclusion area 

except for roads and waterways. As to those, only a showing of post-accident 

control is necessary. Southern Cal. Edison Co. (San Onofre Nuclear Generating 

Station, Units 2 & 3), ALAB-268, 1 NRC 383, 393-95 (1975). Note also that in 

certain situations there may be very narrow stretches of land (e.g., a narrow strand 

HEARINGS 82 JUNE 2011
of beach below the mean high tide line), the lack of total control of which might 

readily be viewed as de minimis. Where such a de minimis situation exists, strict 

application of the constant total control requirements may be inappropriate. 

Id. at 394-95. 

3.8.3.2 Need for Facility 

NEPA implicitly requires that a proposed facility exhibit some benefit to justify its 

construction or licensing. In the case of a nuclear power plant, the plant arguably 

has no benefit unless it is needed. Thus, a showing of need for the facility is 

apparently required to justify the licensing thereof. This need can be demonstrated 

either by a showing that there is a need for additional generating capacity to 

produce needed power or by a showing that the nuclear plant is needed as a 

substitute for plants that burn fossil fuels that are in short supply. Niagara Mohawk 

Power Corp. (Nine Mile Point Nuclear Station, Unit 2), ALAB-264, 1 NRC 347, 

353-54 (1975). See Kan. Gas & Elec. Co. (Wolf Creek Generating Station, Unit 1), 

ALAB-462, 7 NRC 320, 327 (1978). A plant may also be justified on the basis that it 

is needed to replace scarce natural gas as an ultimate energy resource, “i.e., to 

satisfy residential and business energy requirements now being directly met by 

natural gas.” Wolf Creek, ALAB-462, 7 NRC at 327. In evaluating a utility’s load 

forecast, “the most that can be required is that the forecast be a reasonable one in 

the light of what is ascertainable at the time made.” Id. at 328. Because of the 

uncertainty involved in predicting future demand and the serious consequences of 

not having generating capacity available when needed, an isolated forecast which is 

appreciably lower than all others in the record may be accepted only if the Board 

finds that the isolated forecast “rests on firm ground.” Id. at 332. 

Prior to rule changes precluding the consideration of need for power in operating 

license adjudications, it was held that a change in the need for power at the 

operating license stage must be sufficiently extensive to offset the environmental 

and economic costs of construction before it may be raised as a viable contention. 

Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), 

LBP-81-35, 14 NRC 682, 684 (1981). Under the current rules, need for power now 

may be litigated in operating license proceedings only if it is shown, pursuant to 

10 C.F.R. § 2.335 (formerly § 2.758), that special circumstances warrant waiver of 

the rules prohibiting litigation of need for power. Ga. Power Co. (Vogtle Nuclear 

Plant, Units 1 & 2), LBP-84-35, 20 NRC 887, 889-90 (1984), citing

10 C.F.R. 51.53(c); Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), 

ALAB-813, 22 NRC 59, 84 (1985). 

The substitution theory, whereby the need for a nuclear power facility is based on 

the need to substitute nuclear-generated power for that produced using fossil fuels, 

has been upheld as providing an adequate basis on which to establish need for the 

facility. New England Coalition on Nuclear Pollution v. NRC, 582 F.2d 87, 97-98 

(1st Cir. 1978). 

Considerable weight should be accorded the electrical demand forecast of a state 

utilities commission that is responsible by law for providing current analyses of 

probable electrical demand growth and which has conducted public hearings on the 

subject. A party may have the opportunity to challenge the analysis of such 

commission. Nevertheless, where the evidence does not show that such analysis is 

JUNE 2011 HEARINGS 83
seriously defective or rests on a fatally flawed foundation, no abdication of NRC 

responsibilities under NEPA results from according conclusive effect to such a 

forecast. Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 

2, 3 & 4), ALAB-490, 8 NRC 234, 240-41 (1978). 

It is reasonable, in projecting market supply and demand, to rely upon the public 

statements of market participants, particularly those whose interests do not appear 

to coincide with the applicant. La. Energy Servs., L.P. (National Enrichment 

Facility), LBP-05-13, 61 NRC 385, 439 (2005). The willingness of potential 

customers to purchase an applicant’s product is the best evidence of the applicant’s 

ability to enter the market. Id. at 443-44 (regarding an applicant which had entered 

into contracts constituting a majority of the applicant’s expected production capacity 

during the first 10 years of production). 

The U.S. Supreme Court has noted that there is little doubt that under the AEA, 

state public utility commissions or similar bodies are empowered to make the initial 

decision regarding the need for power. Vermont Yankee Nuclear Power Corp. v. 

NRDC, 435 U.S. 519 (1978). But this Commission’s responsibilities regarding need 

for power have their primary roots in NEPA rather than the AEA. NEPA does not 

foreclose the placement of heavy reliance on the judgment of local regulatory bodies 

charged with the duty of insuring that the utilities within their jurisdiction fulfill the 

legal obligations to meet customer demands. Rochester Gas & Elec. Corp. (Sterling 

Power Project, Nuclear Unit 1), ALAB-502, 8 NRC 383, 388-89 (1978). 

3.8.3.3 Burden and Means of Proof in Interim Licensing Suspension Cases 

Several cases have set forth the requirements as to burden of proof and burden of 

going forward in interim licensing suspension cases. These rulings were 

promulgated in the context of the Commission’s General Statement of Policy on the 

Uranium Fuel Cycle, 41 Fed. Reg. 34,707 (Aug. 16, 1976), but presumably would be 

applicable in similar contexts that may arise in the future. 

In a motion by intervenors for suspension of a construction permit in such a 

situation, the applicant for the construction permit has the burden of proof. Pub. 

Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), ALAB-349, 4 NRC 235 (1976); 

Union Elec. Co. (Callaway Plant, Units 1 & 2), ALAB-346, 4 NRC 214 (1976). An 

applicant faced with such a motion stands in jeopardy of having the motion 

summarily granted where he does not make an evidentiary showing or even 

address the relevant factors bearing on the propriety of suspension in his response 

to the motion. Callaway, ALAB-346, 4 NRC at 215. The applicant also has the 

burden of going forward with evidence. Union Elec. Co. (Callaway Plant, Units 1 

& 2), ALAB-348, 4 NRC 225 (1976). This burden of going forward is not triggered 

by a motion to suspend a construction permit which fails to state any reason which 

might support the grant of the motion. Id. On the other hand, the Board’s duty to 

entertain the motion and the applicant’s duty to go forward is triggered where the 

motion contains supporting reasons “sufficient to require reasonable minds to 

inquire further.” Id.

HEARINGS 84 JUNE 2011
3.8.3.4 Availability of Uranium Supply 

In considering the extent of uranium resources, a Board should not restrict itself to 

established resources which have already been discovered and evaluated in terms 

of economic feasibility but should consider, in addition, “probable” uranium 

resources which will likely be available over the next 40 years. The Board should 

also consider the total number of reactors “currently in operation, under 

construction, and on order” rather than the number reasonably expected to be 

operational in the time period under consideration since future reactors will not be 

licensed unless there is sufficient fuel for them as well as previously licensed 

reactors. Kan. Gas & Elec. Co. (Wolf Creek Generating Station, Unit 1), ALAB-462, 

7 NRC 320, 323-25 (1978). See Gulf States Util. Co. (River Bend Station, Units 1 

& 2), ALAB-444, 6 NRC 760 (1977); Gulf States Util. Co. (River Bend Station, 

Units 1 & 2), ALAB-317, 3 NRC 175 (1976). 

In order to establish the availability of a uranium supply, a construction permit 

applicant need not demonstrate that it has a long-term contract for fuel. Union Elec. 

Co. (Callaway Plant, Units 1 & 2), ALAB-347, 4 NRC 216, 222 (1976). 

3.8.3.5 Environmental Costs 

(RESERVED) 

3.8.3.5.1 Cost of Withdrawing Farmland from Production 

The environmental cost of withdrawing farmland is “deemed to be the costs of 

the generation (if necessary) of an equal amount of production on other land.” 

Kan. Gas & Elec. Co. (Wolf Creek Generating Station, Unit 1), ALAB-462, 

7 NRC 320, 335 (1978). The Appeal Board specifically rejected the analytical 

approach in which the lost productivity is compared to available national cropland 

resources as “an ‘empty ritual’ with a predetermined result” since this approach 

will always lead to the conclusion that withdrawal will have an insignificant 

impact. Id. See also Section 6.16.6.1.1. 

3.8.3.6 Alternate Sites Under NEPA 

To establish that no suggested alternative site is “obviously superior” to the 

proposed site, there must be either (1) an adequate evidentiary showing that the 

alternative sites should be generically rejected or (2) sufficient evidence for informed 

comparisons between the proposed site and individual alternatives. Pub. Serv. Co. 

of N.H. (Seabrook Station, Units 1 & 2), ALAB-471, 7 NRC 477, 498 (1978). 

3.8.3.7 Management Capability 

Under the Atomic Energy Act, the Commission is authorized to consider a licensee’s 

character or integrity in deciding whether to continue or revoke its operating license. 

Metro. Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-772, 

19 NRC 1193, 1207 (1984), rev’d in part on other grounds, CLI-85-2, 21 NRC 282 

(1985). A licensee’s ethics and technical proficiency are both legitimate areas of 

inquiry insofar as consideration of the licensee’s overall management competence is 

JUNE 2011 HEARINGS 85
at issue. Three Mile Island, ALAB-772, 19 NRC at 1227; Piping Specialists, Inc.

(Kansas City, Missouri), LBP-92-25, 36 NRC 156, 153 (1992). 

Candor is an especially important element of management character because of the 

Commission’s heavy dependence on an applicant or licensee to provide accurate 

and timely information about its facility. La. Power & Light Co. (Waterford Steam 

Electric Station, Unit 3), ALAB-812, 22 NRC 5, 48, 51 (1985), citing Three Mile 

Island, ALAB-772, 19 NRC at 1208; Piping Specialists, LBP-92-25, 36 NRC at 156. 

Another measure of the overall competence and character of an applicant or 

licensee is the extent to which the company management is willing to implement its 

quality assurance program. Waterford, ALAB-812, 22 NRC at 15 n.5, citing

Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-106, 6 AEC 182, 184 

(1973). A Board may properly consider a company’s efforts to remedy any 

construction and related quality assurance deficiencies. Ignoring such remedial 

efforts would discourage companies from promptly undertaking such corrective 

measures. Waterford, ALAB-812, 22 NRC at 15, 53 n.64, citing Houston Lighting & 

Power Co. (South Texas Project, Units 1 & 2), ALAB-799, 21 NRC 360, 371-74 

(1985). 

Areas of inquiry to determine if a utility is capable of operating a facility are outlined 

in Metro. Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-80-5, 

11 NRC 408 (1980); Carolina Power & Light Co. (Shearon Harris Nuclear Power 

Plant, Units 1, 2, 3 & 4), ALAB-577, 11 NRC 18 (1980), reconsidered, ALAB-581, 11 

NRC 233 (1980), modified, CLI-80-12, 11 NRC 514 (1980); Houston Lighting & 

Power Co. (South Texas Project, Units 1 & 2), LBP-84-13, 19 NRC 659 (1984). 

False statements, if proved, could signify lack of management character sufficient to 

preclude an award of an operating license, at least as long as responsible 

individuals retained any responsibilities for the project. Consumers Power Co.

(Midland Plant, Units 1 & 2), LBP-84-20, 19 NRC 1285, 1297 (1984), citing South 

Texas, LBP-84-13, 19 NRC at 674-75, and Consumers Power Co. (Midland Plant, 

Units 1 & 2), CLI-83-2, 17 NRC 69, 70 (1983). 

The generally applicable standard for licensee character and integrity is whether 

there is reasonable assurance that the licensee has the character to operate the 

facility in a manner consistent with the public health and safety and NRC 

requirements. To decide that issue, the Commission may consider evidence of 

licensee behavior having a rational connection to safe operation of the facility and 

some reasonable relationship to licensee’s candor, truthfulness, and willingness to 

abide by regulatory requirements and accept responsibility to protect public health 

and safety. In this regard, the Commission can rest its decision on evidence that 

past inadequacies have been corrected and that current licensee management has 

the requisite character. Metro. Edison Co. (Three Mile Island Nuclear Station, 

Unit 1), CLI-85-9, 21 NRC 1118, 1136-37 (1985). 

Like “negligence,” the standard of “reasonable management conduct” requires 

considerable judgment by the trier of fact. As there is no precedent directly on point 

regarding lack of reasonable management conduct by a nonexpert manager, it is 

appropriate, therefore, for the Licensing Board to be very careful not to apply a 

HEARINGS 86 JUNE 2011
standard that is too demanding and that benefits too much from hindsight. Piping 

Specialists, Inc. (Kansas City, Missouri), LBP-92-25, 36 NRC 156, 166, n.13 (1992). 

3.9 Burden of Persuasion (Degree of Proof)

For an applicant to prevail on each factual issue, its position must be supported by a 

preponderance of the evidence. Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power 

Plant, Units 1 & 2), ALAB-763, 19 NRC 571, 577 (1984), rev. declined, CLI-84-14, 

20 NRC 285 (1984); Philadelphia Elec. Co. (Limerick Generating Station, Units 1 & 2), 

ALAB-819, 22 NRC 681, 720 (1985). See Tenn. Valley Auth. (Hartsville Nuclear Plant, 

Units 1A, 2A, 1B, & 2B), ALAB-463, 7 NRC 341, 360 (1978), reconsid. denied, ALAB-467, 

7 NRC 459 (1978); Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), ALAB-355, 

4 NRC 397, 405 n.19 (1976). 

The burden of persuasion (degree to which a party must convince the Board) should be 

influenced by the “gravity” of the matter in controversy. Va. Elec. & Power Co. (North 

Anna Power Station, Units 1, 2, 3, & 4), ALAB-256, 1 NRC 10, 17 n.18 (1975). 

A Licensing Board has utilized the clear and convincing evidence standard with regard to 

findings concerning the falsification and manipulation of test results by a licensee’s 

personnel because such findings could result in serious injuries to the reputations of the 

individuals involved. The Board also believed that a more stringent evidentiary standard 

was justified where the events in question allegedly occurred seven or eight years before 

the hearing and the memories of the witnesses had faded. Inquiry Into Three Mile Island 

Unit 2 Leak Rate Data Falsification, LBP-87-15, 25 NRC 671, 691 (1987). Compare

Piping Specialists, Inc. and Forrest L. Roudebush, LBP-92-25, 36 NRC 156, 186 (1992). 

3.9.1 Environmental Effects Under NEPA 

It is not necessary that environmental effects be demonstrated with certainty. 

Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Unit 2), ALAB-254, 

8 AEC 1184, 1191-92 (1975). 

It is appropriate to focus only on whether a partial interim action will increase the 

environmental effects over those analyzed for the full proposed action where there is 

no reasonable basis to foresee that the full action will not be permitted in the future. 

Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-57, 

18 NRC 445, 629 n.76 (1983). 

3.10 Stipulations

10 C.F.R. § 2.330 (formerly § 2.753) permits stipulation as to facts in a licensing 

proceeding. Such stipulations are generally encouraged. See, e.g., Maine Yankee 

Atomic Power Co. (Maine Yankee Atomic Power Station), CLI-74-2, 7 AEC 2, 3 n.1 

(1974). However, in the NEPA context, Licensing Boards retain an independent obligation 

to assure that NEPA is complied with and its policies protected despite stipulations to that 

effect. Consol. Edison Co. of N.Y. (Indian Point Nuclear Generating Unit 3), CLI-75-14, 2 

NRC 835, 838 (1975). 

JUNE 2011 HEARINGS 87
3.11 Official Notice of Facts

Under 10 C.F.R. § 2.337(f) (formerly § 2.743(i)), official notice may be taken of any fact of 

which U.S. Courts may take judicial notice. In addition, Licensing Boards may take official 

notice of any scientific or technical fact within the knowledge of the NRC as an expert 

body. Pursuant to 10 C.F.R. § 2.337(f) (formerly § 2.743(i)), the Commission may take 

official notice of publicly available documents filed in the docket of a FERC proceeding. 

Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), CLI-96-7, 43 NRC 235 (1996). 

In any event, parties must have the opportunity to controvert facts which have been 

officially noticed. 

Pursuant to this regulation, Licensing and Appeal Boards have taken official notice of such 

matters as: 

(1) a statement in a letter from the AEC’s General Manager that future 

releases of radioactivity from a particular reactor would not exceed the 

lowest limit established for all reactors at the same site. Duquesne Light 

Co. (Beaver Valley Power Station, Unit 2), LBP-74-25, 7 AEC 711, 733 

(1974); 

(2) Commission records, letters from applicants and materials on file in the 

Public Document Room to establish the facts with regard to the Ginna 

fuel problem as that problem related to an appeal in another case. 

Consol. Edison Co. of N.Y. (Indian Point, Unit 2), ALAB-75, 5 AEC 309, 

310 (1972); 

(3) portions of a hearing record in another Commission proceeding involving 

the same parties and a similar facility design. Duke Power Co. (Catawba 

Nuclear Station, Units 1 & 2), LBP-74-5, 7 AEC 82, 92 (1974); 

(4) a statement, set forth in a pleading filed by a party in another Commission 

proceeding, of AEC responses to interrogatories propounded in a court 

case to which the agency was a party. Catawba, LBP-74-5, 7 AEC at 96; 

(5) Staff reports and WASH documents. Duke Power Co. (Catawba Nuclear 

Station, Units 1 & 2), LBP-74-22, 7 AEC 659, 667 (1974); 

(6) ACRS letters on file in the Public Document Room. Consumers Power

Co. (Midland Plant, Units 1 & 2), ALAB-123, 6 AEC 331, 332 (1973); 

(7) the existence of an applicant’s Federal Water Pollution Control Act 

Section 401 certificate. Wash. Pub. Power Supply Sys. (Hanford No. 2 

Nuclear Power Plant), ALAB-113, 6 AEC 251, 252 (1973). 

In most of these cases, the basis for taking official notice was that the document or 

material noticed was within the knowledge of the Commission as an expert body or was a 

part of the public records of the Commission. See, e.g., cases cited in items 1, 2, 3, 5 

and 6, supra. 

In the same vein, it would appear that nothing would preclude a Licensing Board from 

taking official notice of reports and documents filed with the agency by regulated parties, 

HEARINGS 88 JUNE 2011
provided that parties to the proceeding are given adequate opportunity to controvert the 

matter as to which official notice is taken. See, e.g., Mkt. St. Ry Co. v. R.R. Comm’n of 

Cal., 324 U.S. 548, 562 (1945) (agency’s decision based in part on officially noticed 

monthly operating reports filed with agency by party); Wis. v. FPC, 201 F.2d 183, 186 

(1952), cert. denied, 345 U.S. 934 (1953) (regulatory agency can and should take official 

notice of reports filed with it by regulated company). 

The Commission may take official notice of a matter which is beyond reasonable 

controversy and which is capable of immediate and accurate determination by resort to 

easily accessible sources of indisputable accuracy. Long Island Lighting Co. (Shoreham 

Nuclear Power Station, Unit 1), CLI-91-2, 33 NRC 61, 74-75 (1991), citing Gov’t of Virgin 

Islands v. Gereau, 523 F.2d 140, 147 (3rd Cir. 1975), cert. denied, 424 U.S. 917 (1976), 

reconsid. denied on other grounds, CLI-91-8, 33 NRC 461 (1991). 

10 C.F.R. § 2.337(f) (formerly § 2.743(i)) requires that the parties be informed of the 

precise facts as to which official notice will be taken and be given the opportunity to 

controvert those facts. Moreover, it is clear that official notice applies to facts, not 

opinions or conclusions. Consequently, it is improper to take official notice of opinions 

and conclusions. Niagara Mohawk Power Corp. (Nine Mile Point, Unit 2), LBP-74-26, 

7 AEC 758, 760 (1974). While official notice is appropriate as to background facts or facts 

relating only indirectly to the issues, it is inappropriate as to facts directly and specifically 

at issue in a proceeding. K. Davis, Administrative Law Treatise, § 15.08. 

Official notice of information in another proceeding is permissible where the parties to the 

two proceedings are identical, there was an opportunity for rebuttal, and no party is 

prejudiced by reliance on the information. Armed Forces Radiobiology Research Inst.

(Cobalt-60 Storage Facility), ALAB-682, 16 NRC 150, 154 n.3 (1982), citing United States 

v. Pierce Auto Freight Lines, 327 U.S. 515, 527-30 (1945); 10 C.F.R. § 2.337(f) (formerly 

§ 2.743(i)). 

The use of officially noticeable material is unobjectionable in proper circumstances. 

10 C.F.R. § 2.337(f) (formerly § 2.743(i)). Interested parties, however, must have an 

effective chance to respond to crucial facts. Union Elec. Co. (Callaway Plant, Unit 1), 

ALAB-740, 18 NRC 343, 350 (1983), citing Carson Prods. Co. v. Califano, 594 F.2d 453, 

459 (5th Cir. 1979). 

A Licensing Board will decline to take official notice of a matter which is initially presented 

in a party’s proposed findings of fact and conclusions of law since this would deny 

opposing parties the opportunity under 10 C.F.R. § 2.337(a) (formerly § 2.734(c)) to 

confront the facts noticed. Long Island Lighting Co. (Shoreham Nuclear Power Station, 

Unit 1), LBP-88-13, 27 NRC 509, 565-66 (1988). 

Absent good cause, a Licensing Board will not take official notice of documents which are 

introduced for the first time as attachments to a party’s proposed findings of fact. In order 

to be properly admitted as evidence, such documents should be offered as exhibits before 

the close of the record so that the other parties have an opportunity to raise objections to 

the documents. Inquiry Into Three Mile Island Unit 2 Leak Rate Data Falsification, 

LBP-87-15, 25 NRC 671, 687-88 (1987). 

The Commission’s reference to various documents in the background section of an order 

and Notice of Hearing does not indicate that the Commission has taken official notice of 

JUNE 2011 HEARINGS 89
such documents. A party who wishes to rely upon such documents as evidence in the 

hearing should offer the documents as exhibits before the close of the record. Three Mile 

Island Inquiry, LBP-87-15, 25 NRC at 688-89. 

A Licensing Board will not take official notice of state law. Thus, if a party wishes to base 

proposed findings on a state’s regulations, such regulations must be offered and accepted 

as an exhibit. Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), LBP-89-32, 

30 NRC 375, 525, 549 (1989), rev’d in part on other grounds and remanded, ALAB-937, 

32 NRC 135 (1990), aff’d in part and rev’d in part on other grounds, ALAB-941, 

32 NRC 337 (1990), and aff’d on other grounds, ALAB-947, 33 NRC 299 (1991). 

3.12 Evidence

10 C.F.R. §§ 2.337 and 2.711 (formerly § 2.743) generally delineate the types and forms 

of evidence which will be accepted and, in some cases, must be submitted in NRC 

licensing proceedings. 

Generally, testimony is to be pre-filed in writing before the hearing. Pre-filed testimony 

must be served on the other parties at least fifteen (15) days in advance of the hearing at 

which it will be presented, though the presiding officer may permit introduction of 

testimony not so served either with the consent of all parties present or after they have 

had a reasonable chance to examine it. Tenn. Valley Auth. (Hartsville Nuclear Plant, 

Units 1A, 2A, 1B, & 2B), ALAB-367, 5 NRC 92 (1977). However, where the proffering 

party gives an exhibit to the other parties the night before the hearing and then alters it 

over objection at the hearing the following day, it is error to admit such evidence because 

the objecting parties had no reasonable opportunity to examine it. Id.

Parties in civil penalty proceedings are exempt from the general requirement for filing prefiled written direct testimony. Tulsa Gamma Ray, Inc., LBP-91-25, 33 NRC 535, 536 

(1991), citing 10 C.F.R. § 2.711(d) (formerly § 2.743(b)(3)). Prepared testimony, while 

generally used in licensing proceedings, is not required in certain enforcement 

proceedings. 10 § C.F.R. 2.711(d) (formerly 2.743(b)(3)); Conam Inspection, Inc. (Itasca, 

Illinois), LBP-98-2, 47 NRC 3, 5 (1998). However, a Licensing Board may require the 

filing of pre-filed written direct testimony in an enforcement proceeding pursuant to its 

authority to order depositions to be taken and to regulate the course of the hearing and 

the conduct of the participants. Piping Specialists, Inc. LBP-92-7, 35 NRC 163, 165 

(1992). 

Technical analyses offered in evidence must be sponsored by an expert who can be 

examined on the reliability of the factual assertions and soundness of the scientific 

opinions found in the documents. Southern Cal. Edison Co. (San Onofre Nuclear 

Generating Station, Units 2 & 3), ALAB-717, 17 NRC 346, 367 (1983), citing Duke Power 

Co. (William B. McGuire Nuclear Station, Units 1 & 2), ALAB-669, 15 NRC 453, 477 

(1982). See Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), 

ALAB-443, 6 NRC 741, 754-56 (1977); Philadelphia Elec. Co. (Limerick Generating 

Station, Units 1 & 2), ALAB-836, 23 NRC 479, 494 n.22 (1986); Pub. Serv. Co. of N.H.

(Seabrook Station, Units 1 & 2), ALAB-891, 27 NRC 341, 350-51 (1988). See also

Section 3.13.4, Expert Witnesses. 

HEARINGS 90 JUNE 2011
3.12.1 Rules of Evidence 

While the Federal Rules of Evidence are not directly applicable to NRC proceedings, 

NRC adjudicatory boards often look to those rules for guidance. Southern Cal. Edison 

Co. (San Onofre Nuclear Generating Station, Units 2 & 3), ALAB-717, 17 NRC 346, 

365 n.32 (1983). See generally Duke Power Co. (William B. McGuire Nuclear Station, 

Units 1 & 2), ALAB-669, 15 NRC 453, 475 (1982). 

3.12.1.1 Admissibility of Evidence 

Evidence is admissible if it is relevant, material, reliable and not repetitious. 

10 C.F.R. §§ 2.337(a), 2.711(e) (formerly § 2.743(c)). Under this standard, the 

application for a permit or license is admissible upon authentication. Boston Edison 

Co. (Pilgrim Nuclear Power Station), ALAB-83, 5 AEC 354, 369 (1972), aff’d sub 

nom., Union of Concerned Scientists v. AEC, 499 F.2d 1069, 1094 (D.C. Cir. 1974). 

The requirement of authentication or identification as a condition precedent to the 

admissibility of evidence in NRC licensing proceedings is satisfied by evidence 

sufficient to support a finding that the matter in question is what its proponent 

claims. Southern Cal. Edison Co. (San Onofre Nuclear Generating Station, Units 2 

& 3), ALAB-717, 17 NRC 346, 365 (1983), citing Fed. R. Evid. 901(a). 

A determination on materiality will precede the admission of an exhibit into 

evidence, but this is not an ironclad requirement in administrative proceedings in 

which no jury is involved. The determinations of materiality could be safely left to a 

later date without prejudicing the interests of any new party. Pub. Serv. Co. of N.H.

(Seabrook Station, Units 1 & 2), ALAB-520, 9 NRC 48, 50 n.2 (1979). 

The final safety analysis report (FSAR) is conditionally admissible as substantive 

evidence, but once portions of the FSAR are put into controversy, applicants must 

present one or more competent witnesses to defend them. San Onofre, ALAB-717, 

17 NRC at 366. 

Prepared testimony may be struck where the witness lacks personal knowledge of 

the matters in the testimony and lacks expertise to interpret facts contained therein. 

Ga. Inst. of Tech. (Georgia Tech Research Reactor Atlanta, Georgia), LBP-96-10, 

43 NRC 231, 232-33 (1996). 

The opinions of an expert witness which are based on scientific principles, acquired 

through training or experience, and data derived from analyses or by perception are 

admissible as evidence. Philadelphia Elec. Co. (Limerick Generating Station, 

Units 1 & 2), ALAB-819, 22 NRC 681, 720 & n.52 (1985). See Fed. R. Evid. 702; 

McGuire, supra, 15 NRC at 475. 

In order for expert testimony to be admissible, it need only (1) assist the trier of fact, 

and (2) be rendered by a properly qualified witness. La. Power & Light Co.

(Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076, 1091 (1983). 

See Fed. R. Evid. 702; Duke Power Co. (William B. McGuire Nuclear Station, 

Units 1 & 2), ALAB-669, 15 NRC 453, 475 (1982); Philadelphia Elec. Co. (Limerick 

Generating Station, Units 1 & 2), ALAB-808, 21 NRC 1595, 1602 (1985). 

JUNE 2011 HEARINGS 91
A Licensing Board may refuse to accept an expert witness’s pre-filed written 

testimony as evidence in a licensing proceeding in the absence of the expert’s 

personal appearance for cross-examination at the hearing. La. Power & Light Co.

(Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076, 1088 n.13 

(1983). See generally 10 C.F.R. § 2.319 (formerly § 2.718); Pac. Gas & Elec. Co.

(Diablo Canyon Nuclear Power Plant, Unit 2), ALAB-27, 4 AEC 652, 658-659 

(1971). 

The fact that a witness is employed by a party, or paid by a party, goes only to the 

persuasiveness or weight that should be accorded the expert’s testimony, not to its 

admissibility. Waterford, supra, 17 NRC at 1091; Tex. Util. Elec. Co. (Comanche 

Peak Steam Electric Station, Units 1 & 2), LBP-85-39, 22 NRC 755, 756 (1985). 

3.12.1.1.1 Admissibility of Hearsay Evidence 

Hearsay evidence is generally admissible in administrative proceedings. 

Southern Cal. Edison Co. (San Onofre Nuclear Generating Station, Units 2 & 3), 

ALAB-717, 17 NRC 346, 366 (1983); Duke Power Co. (Catawba Nuclear Station, 

Units 1 & 2), ALAB-355, 4 NRC 397, 411-12 (1976); Cleveland Elec. Illuminating 

Co. (Perry Nuclear Power Plant, Units 1 & 2), ALAB-802, 21 NRC 490, 501 n.67 

(1985); Philadelphia Elec. Co. (Limerick Generating Station, Units 1 & 2), 

ALAB-863, 25 NRC 273, 279 (1987). 

There is still a requirement, however, that the hearsay evidence be reliable. For 

example, a statement by an unknown expert to a nonexpert witness which such 

witness proffers as substantive evidence is unreliable and, therefore, 

inadmissible. Tenn. Valley Auth. (Hartsville Nuclear Plant, Units 1A, 2A, 1B 

& 2B), ALAB-367, 5 NRC 92 (1977). In addition to being reliable, hearsay 

evidence must be relevant, material and not unduly repetitious, to be admissible 

under 10 C.F.R. § 2.337(a) (formerly § 2.743(c)). Duke Power Co.

(William B. McGuire Nuclear Station, Units 1 & 2), ALAB-669, 15 NRC 453, 477 

(1982). 

Although the testimony of an expert witness which is based on work or analyses 

performed by other people is essentially hearsay, such expert testimony is 

admissible in administrative proceedings if its reliability can be determined 

through questioning of the expert witness. Philadelphia Elec. Co. (Limerick 

Generating Station, Units 1 & 2), ALAB-819, 22 NRC 681, 718 (1985). 

In considering a motion for summary disposition, a Board will require a witness to 

testify from personal knowledge in order to establish material facts which are 

legitimately in dispute. This requirement applies as well to expert witnesses who, 

although generally permitted to base their opinion testimony on hearsay, may 

only establish those material facts of which they have direct, personal 

knowledge. Commonwealth Edison Co. (Braidwood Nuclear Power Station, 

Units 1 & 2), LBP-86-12, 23 NRC 414, 418-19 (1986). 

The fact that the NRC Staff’s charges in support of an enforcement order may be 

“hearsay” allegations does not provide sufficient reason to dismiss those claims 

ab initio. See Oncology Servs. Corp., LBP-93-20, 38 NRC 130, 135 n.2 (1993) 

(hearsay evidence is generally admissible in administrative hearing if it is reliable, 

HEARINGS 92 JUNE 2011
relevant, and material). Rather, so long as those allegations are in dispute, the 

validity and sufficiency of any “hearsay” information upon which they are based 

generally is a matter to be tested in the context of an evidentiary hearing in which 

the Staff must provide adequate probative evidence to carry its burden of proof. 

Ind. Reg’l Cancer Ctr., LBP-94-21, 40 NRC 22, 31 (1994). 

3.12.1.2 Hypothetical Questions 

Hypothetical questions may be propounded to a witness. Such questions are 

proper and become a part of the record, however, only to the extent that they 

include facts which are supported by the evidence or which the evidence tends to 

prove. Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), 

ALAB-334, 3 NRC 809, 828-29 (1976). 

3.12.1.3 Reliance on Scientific Treatises, Newspapers, Periodicals 

An expert may rely on scientific treatises and articles despite the fact that they are, 

by their very nature, hearsay. Ill. Power Co. (Clinton Power Station, Units 1 & 2), 

ALAB-340, 4 NRC 27 (1976). The Appeal Board in Clinton left open the question as 

to whether an expert could similarly rely on newspapers and other periodicals. 

An expert witness may testify about analyses performed by other experts. If an 

expert witness were required to derive all his background data from experiments 

which he personally conducted, such expert would rarely be qualified to give any 

opinion on any subject whatsoever. Philadelphia Elec. Co. (Limerick Generating 

Station, Units 1 & 2), ALAB-819, 22 NRC 681, 718 (1985), citing Wis. Elec. Power 

Co. (Point Beach Nuclear Plant, Unit 2), ALAB-78, 5 AEC 319, 332 (1972). 

3.12.1.4 Off-the-Record Comments 

Obviously, nothing can be treated as evidence which has not been introduced and 

admitted as such. In this vein, off-the-record ex parte communications carry no 

weight in adjudicatory proceedings and cannot be treated as evidence. Pub. Serv. 

Co. of Ind. (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-459, 

7 NRC 179, 191 (1978). 

3.12.1.5 Presumptions and Inferences 

With respect to Safeguards Information, the Commission has declined to permit any 

presumption that a party who has demonstrated standing in a proceeding cannot be 

trusted with sensitive information. Commonwealth Edison Co. (Byron Nuclear 

Power Station, Units 1 & 2), LBP-83-40, 18 NRC 93, 100 (1983). 

In any NRC licensing proceeding, a FEMA finding will constitute a rebuttable 

presumption on questions of adequacy and implementation capability of emergency 

planning. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), 

LBP-83-61, 18 NRC 700, 702 (1983), citing 10 C.F.R. § 50.47(a)(2). 

When a party has relevant evidence within his control which he fails to produce, it 

may be inferred that such evidence is unfavorable to him. Pub. Serv. Co. of N.H.

(Seabrook Station, Units 1 & 2), ALAB-471, 7 NRC 477, 498 (1978). 

JUNE 2011 HEARINGS 93
Although the testimony of a public official working for a government agency may be 

entitled to a rebuttable presumption that public officials are presumed to have 

performed their official duties in a proper manner, this presumption does not apply 

where the official is not operating in a traditional governmental capacity but rather as 

an official of a regulated entity operated by a government unit. Ga. Inst. of Tech.

(Georgia Tech Research Reactor, Atlanta, Georgia), LBP-97-7, 45 NRC 265, 271 

(1997). 

In the absence of evidence to the contrary, the NRC does not presume that a 

licensee will violate agency regulations whenever the opportunity arises. Private 

Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-01-9, 

53 NRC 232, 235 (2001); Private Fuel Storage, L.L.C. (Independent Spent Fuel 

Storage Installation), LBP-00-35, 52 NRC 364, 405 (2000). 

3.12.1.6 Government Documents 

NRC adjudicatory boards may follow Rule 902 of the Federal Rules of Evidence, 

waiving the need for extrinsic evidence of authenticity as a precondition to admitting 

into evidence official government documents. Pub. Serv. Co. of N.H. (Seabrook 

Station, Units 1 & 2), ALAB-520, 9 NRC 48, 49 (1979). 

3.12.2 Status of ACRS Letters 

Section 182(b) of the AEA and 10 C.F.R. § 2.337(g) (formerly § 2.743(g)) of the 

Commission’s Rules of Practice require that the ACRS letter be proffered and received 

into evidence. However, because the ACRS is not subject to cross-examination, the 

ACRS letter cannot be admitted for the truth of its contents, nor may it provide the 

basis for any findings where the proceeding in which it is offered is a contested one. 

Ark. Power & Light Co. (Arkansas Nuclear-1, Unit 2), ALAB-94, 6 AEC 25, 32 (1973). 

The contents of an ACRS report are not admissible in evidence for the truth of any 

matter stated therein as to controverted issues, but only for the limited purpose of 

establishing compliance with statutory requirements. A Licensing Board may rely upon 

the conclusion of the ACRS on issues that are not controverted by any party. Southern 

Cal. Edison Co. (San Onofre Nuclear Generating Station, Units 2 & 3), ALAB-717, 

17 NRC 346, 367 & n.36 (1983). See Consumers Power Co. (Midland Plant, Units 1 

& 2), ALAB-123, 6 AEC 331, 340 (1973). 

However, the contents of an ACRS report cannot, of itself, serve as an underpinning 

for findings on health and safety aspects of licensing proceedings. Long Island 

Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-57, 18 NRC 445, 518 

(1983), citing Arkansas Nuclear-1, ALAB-94, 6 AEC at 32. The ACRS is an 

independent federal advisory committee that is not under the Staff’s control. In the 

context of an uncontested (“mandatory”) hearing, a Board may ask the Staff to produce 

relevant ACRS documents that it has reviewed, but it should not ask the Staff to obtain 

additional ACRS documents that it has not reviewed, as it is not clear that they are 

germane given that the Board’s review is intended to ensure that the Staff’s 

conclusions have “reasonable support in logic and fact.” Exelon Generation Co., LLC; 

Sys. Energy Res., Inc. (Early Site Permit for Clinton ESP Site; Early Site Permit for 

Grand Gulf ESP Site), CLI-06-20, 64 NRC 15, 25-26 (2006). 

HEARINGS 94 JUNE 2011
3.12.3 Presentation of Evidence by Intervenors 

An intervenor may not adduce affirmative evidence on an issue that he has not raised 

himself unless and until he amends his contentions. Northern States Power Co.

(Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-244, 8 AEC 857, 869 n.17 

(1974). Nevertheless, an intervenor may cross-examine a witness on those portions of 

his testimony which relate to matters that have been placed in controversy by any party 

to the proceeding as long as the intervenor has a discernible interest in the resolution 

of the particular matter. Northern States Power Co. (Prairie Island Nuclear Generating 

Plant, Units 1 & 2), CLI-75-1, 1 NRC 1 (1975), aff’g ALAB-244, 8 AEC 857, 867-88 

(1974). 

An intervenor which has failed to present allegedly relevant information during direct 

examination of a witness in a Licensing Board proceeding may not assert that the 

information nevertheless should be considered on appeal since it could have been 

elicited during cross-examination. Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 

& 2), ALAB-932, 31 NRC 371, 387 n.49 (1990). 

3.12.4 Evidentiary Objections 

Objections to particular evidence or the manner of presentation thereof must be made 

in a timely fashion. Failure to object to evidence bars the subsequent taking of 

exceptions to its admission. Fla. Power & Light Co. (St. Lucie Nuclear Power Plant, 

Unit 2), ALAB-335, 3 NRC 830, 842 n.26 (1976); Pub. Serv. Co. of N.H. (Seabrook 

Station, Units 1 & 2), LBP-89-32, 30 NRC 375, 554 n.56 (1989), rev’d in part on other 

grounds and remanded, ALAB-937, 32 NRC 135 (1990), aff’d in part and rev’d in part 

on other grounds, ALAB-941, 32 NRC 337 (1990), and aff’d on other grounds, 

ALAB-947, 33 NRC 299 (1991). To preserve a claim of error on an evidentiary ruling, 

a party must interpose its objection and the basis therefore clearly and affirmatively. If 

a party appears to acquiesce in an adverse ruling and does not insist clearly on the 

right to introduce evidence, the Appeal Board will not find that the evidence was 

improperly excluded. Tenn. Valley Auth. (Hartsville Nuclear Plant, Units 1A, 2A, 1B 

& 2B), ALAB-463, 7 NRC 341, 362 n.90 (1978). 

Failure to raise objections at hearing constitutes wavier of the objection on appeal. 

Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power 

Station), CLI-10-14, 71 NRC __ (June 17, 2010) (slip op. at 26) (citing Duke Power Co. 

(Catawba Nuclear Station, Units 1 & 2), ALAB-355, 4 NRC 397, 411 & n.46 (1976)). 

3.12.5 Statutory Construction; Weight 

“Absent a clearly expressed legislative intention to the contrary, [the language of the 

statute itself] must ordinarily be regarded as conclusive.” Consumer Prod. Safety 

Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980). The Supreme Court has 

gone even further, indicating that, when the words of a statute are unambiguous, no 

further judicial inquiry into legislative history of the language is permissible. Ohio 

Edison Co. (Perry Nuclear Power Plant, Unit 1); Cleveland Elec. Illuminating Co. & 

Toledo Edison Co. (Perry Nuclear Power Plant, Unit 1; Davis-Besse Nuclear Power 

Station, Unit 1), LBP-92-32, 36 NRC 269, 301 (1992), aff’d, City of Cleveland v. NRC, 

68 F.3d 1361 (D.C. Cir. 1995). 

JUNE 2011 HEARINGS 95
If an NRC regulation is legislative in character, the rules of interpretation applicable to 

statutes will be equally germane to determining that regulation’s meaning. Cleveland 

Elec. Illuminating Co. (Perry Nuclear Power Plant, Unit 1), LBP-95-17, 42 NRC 137, 

143, rev’d on other grounds, CLI-96-13, 44 NRC 315 (1996). 

Where a regulation leaves a term undefined, the Board, in attempting to define it, will 

look first to the plain meaning of the term, then to the structure of the regulation, and 

finally, if appropriate, to the regulatory history. U.S. Dept. of Energy (High-Level Waste 

Repository), LBP-05-27, 62 NRC 478, 506 (2005). 

When regulatory language is ambiguous, it is appropriate to resort to the regulatory 

history of the provision. Carolina Power & Light Co. (Shearon Harris Nuclear Power 

Plant), LBP-00-12, 51 NRC 247, 259 (2000). 

Where the meaning of a regulation is clear and obvious, the regulatory language is 

conclusive, and the Board may not disregard the letter of the regulation. The Board 

must enforce the regulation as written. Perry, LBP-95-17, 42 NRC at 145. 

The Licensing Board may not read unwarranted meanings into an unambiguous 

regulation even to support a supposedly desirable policy that is not effectuated by the 

regulation as written. To discern regulatory meaning, the Board is not free to go 

outside the express terms of an unambiguous regulation to extrinsic aids such as 

regulatory history. Aids to interpretation only can be used to resolve ambiguity in an 

equivocal regulation, never to create it in an unambiguous one. Perry, LBP-95-17, 

42 NRC at 145. 

The Board will not look to a regulation’s Statements of Consideration for help in 

defining terms where the Board can interpret the regulation satisfactorily simply by 

utilizing the plain meaning of those terms, and where the statement of consideration 

language cited is not actually aimed at clarifying the disputed terms. High-Level Waste 

Repository, LBP-05-27, 62 NRC at 511-12. 

The “best source of legislative history” is the congressional reports on a particular bill. 

See Ala. Power Co., 692 F.2d. at 1368. Perry & Davis-Besse, LBP-92-32, 

36 NRC at 302. 

Statement of witnesses during a congressional hearing that are neither made by a 

member of Congress nor referenced in the relevant committee report are normally to 

be accorded little, if any, weight. See Kelly v. Robinson, 479 U.S. 36, 50 n.13 (1986); 

Perry & Davis-Besse, LBP-92-32, 36 NRC at 302. 

A legislative body will be afforded a large measure of deference in its choice of which 

aspects of a particular evil it wishes to eliminate. See, e.g., Minn. v. Clover Leaf 

Creamery Co., 449 U.S. 456, 466 (1981); Perry & Davis-Besse, LBP-92-32, 

36 NRC at 307. 

3.12.5.1 Due Process 

An equal protection challenge to an economic classification is reviewed under the 

rational basis standard, which requires that any classifications established in the 

challenged statute must rationally further a legitimate government objective. See,

HEARINGS 96 JUNE 2011
e.g., Nordlinger v. Hahn, 505 U.S. 1, 10 (1992); Ohio Edison Co., Cleveland Elec. 

Illuminating Co. & Toledo Edison Co. (Perry Nuclear Power Plant, Unit 1; 

Davis-Besse Nuclear Power Station, Unit 1), LBP-92-32, 36 NRC 269, 306 (1992), 

aff’d on other grounds, City of Cleveland v. NRC, 68 F.3d 1361 (D.C. Cir. 1995). 

3.12.5.2 Bias or Prejudgment, Disqualification 

In reviewing an agency decision allegedly subject to bias, including improper 

legislative influence, the independent assessment of an adjudicatory decisionmaker 

regarding the merits of the parties’ legal (as opposed to factual) positions will 

attenuate any earlier impropriety. See Gulf Oil Corp. v. FPC, 563 F.2d 588, 611-12 

(3d Cir. 1977), cert. denied, 434 U.S. 1062 (1978); Ohio Edison Co., Cleveland 

Elec. Illuminating Co. & Toledo Edison Co. (Perry Nuclear Power Plant, Unit 1; 

Davis-Besse Nuclear Power Station, Unit 1), LBP-92-32, 36 NRC 269, 308 (1992), 

aff’d on other grounds, City of Cleveland v. NRC, 68 F.3d 1361 (D.C. Cir. 1995). 

3.13 Witnesses at Hearing

Because of the complex nature of the subject matter in NRC hearings, witness panels 

are often utilized. It is recognized in such a procedure that no one member of the panel 

will possess the variety of skills and experience necessary to permit him to endorse and 

explain the entire testimony. Consumers Power Co. (Midland Plant, Units 1 & 2), 

ALAB-379, 5 NRC 565, 569 (1977). 

The testimony and opinion of a witness who claims no personal knowledge of, or 

expertise in, a particular aspect of the subject matter of his testimony will not be accorded 

the weight given testimony on that question from an expert witness reporting results of 

careful and deliberate measurements. Pub. Serv. Elec. & Gas Co. (Hope Creek 

Generating Station, Units 1 & 2), LBP-78-15, 7 NRC 642, 647 n.8 (1978). 

While a Licensing Board has held that prepared testimony should be the work and words 

of the witness, not his counsel, Consumers Power Co. (Midland Plant, Units 1 & 2), 

LBP-81-63, 14 NRC 1768, 1799 (1981), the Appeal Board has made it clear that what is 

important is not who originated the words that comprise the prepared testimony but rather 

whether the witness can truthfully attest that the testimony is complete and accurate to the 

best of his or her knowledge. Consumers Power Co. (Midland Plant, Units 1 & 2), 

ALAB-691, 16 NRC 897, 918 (1982). 

Where technical issues are being discussed, Licensing Boards are encouraged during 

rebuttal and surrebuttal to put opposing witnesses on the stand simultaneously so they 

may respond immediately on an opposing witness’ answer to a question. Statement of 

Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 457 (1981). The 

admission of surrebuttal testimony is a matter within the discretion of a Licensing Board, 

particularly when the party sponsoring the testimony reasonably should have anticipated 

the attack upon its evidence. Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), 

ALAB-932, 31 NRC 371, 397 n.101 (1990), citing Cellular Mobile Sys. v. FCC, 

782 F.2d 182, 201-02 (D.C. Cir. 1985). 

Where the credibility of evidence turns on the demeanor of a witness, an appellate 

board will give the judgment of the trial Board, which saw and heard the testimony, 

particularly great deference. Metro. Edison Co. (Three Mile Island Nuclear Station, 

JUNE 2011 HEARINGS 97
Unit 1), ALAB-772, 19 NRC 1193, 1218 (1984), rev’d in part on other grounds, CLI-85-2, 

21 NRC 282 (1985). However, demeanor is of little weight where other testimony, 

documentary evidence, and common sense suggest a contrary result. Three Mile Island, 

ALAB-772, 19 NRC at 1218. 

3.13.1 Compelling Appearance of Witness 

10 C.F.R. § 2.702 (formerly § 2.720) provides that, pursuant to proper application by a 

party, a Licensing Board may compel the attendance and testimony of a witness by the 

issuance of a subpoena. A Licensing Board has no independent obligation to compel 

the appearance of a witness. Carolina Power & Light Co. (Shearon Harris Nuclear 

Power Plant), ALAB-843, 24 NRC 200, 215 (1986). 

An NRC subpoena is enforceable if: (1) it is for a proper purpose authorized by 

Congress; (2) the information is clearly relevant to that purpose and adequately 

described; and (3) statutory procedures are followed in the subpoena’s issuance. 

United States v. Powell, 379 U.S. 48, 57-58 (1964); Constr. Prods. Research Inc. v. 

United States, 73 F.3d 464, 469-71 (2d Cir.), cert. denied, 519 U.S. 927 (1996); 

St. Mary’s Med. Ctr., CLI-97-14, 46 NRC 287, 291 (1997). The NRC may begin an 

investigation “merely on suspicion that the law is being violated, or even just because it 

wants assurances that it is not.” United States v. Morton Salt Co., 338 U.S. 632, 

642-43 (1950). The NRC’s subpoena power is essentially analogous to the broad 

subpoena powers accorded to a grand jury. Powell, 379 U.S. at 57; Morton Salt Co., 

338 U.S. at 642-43; Okla. Press Co. v. Walling, 327 U.S. 186, 209 (1946); St. Mary’s 

Med. Ctr., CLI-97-14, 46 NRC 287, 291 (1997). 

The Rules of Practice preclude a Licensing Board from declining to issue a subpoena 

on any basis other than that the testimony sought lacks “general relevance.” In ruling 

on a request for a subpoena, the Board is specifically prohibited from attempting “to 

determine the admissibility of evidence.” 10 C.F.R. § 2.702(a) (formerly § 2.720(a)); 

Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), ALAB-422, 6 NRC 33, 93 

(1977). 

3.13.1.1 NRC Staff as Witnesses 

The provisions of 10 C.F.R. § 2.702(a)-(g) (formerly § 2.720(a)-(g)) for compelling 

attendance and testimony do not apply to NRC Commissioners or Staff. 

10 C.F.R. § 2.702(h) (formerly § 2.720(h)). Nevertheless, once a Staff witness has 

appeared, he may be recalled and compelled to testify further, despite the 

provisions of 10 C.F.R. § 2.702(h) (formerly § 2.720(h)), if it is established that there 

is a need for the additional testimony on the subject matter. Commonwealth Edison 

Co. (Zion Station, Units 1 & 2), ALAB-226, 8 AEC 381, 391 (1974). 

The Rules of Practice do not permit particular Staff witnesses to be subpoenaed. 

But a Licensing Board, pursuant to 10 C.F.R. § 2.709 (formerly § 2.720(h)(2)), may 

upon a showing of exceptional circumstances, require the attendance and testimony 

of NRC personnel. Where an NRC employee has taken positions at odds with 

those espoused by witnesses to be presented by the Staff, on matters at issue in a 

proceeding, exceptional circumstances exist. The Board determined that differing 

views of such matters are facts differing from those likely to be presented by the 

Staff witnesses and, on that basis, required the attendance and testimony of named 

HEARINGS 98 JUNE 2011
NRC personnel. Ga. Inst. of Tech. (Georgia Tech Research Reactor, Atlanta, 

Georgia), LBP-96-8, 43 NRC 178, 180-81 (1996). 

3.13.1.2 ACRS Members as Witnesses 

Members of the ACRS are not subject to examination in an adjudicatory proceeding 

with regard to the contents of an ACRS report. Gulf States Util. Co. (River Bend 

Station, Units 1 & 2), ALAB-444, 6 NRC 760, 766 n.10 (1977). 

The Appeal Board, at intervenors’ request, directed that certain consultants to the 

ACRS appear as witnesses in the proceeding before the Board. Such an 

appearance was proper under the circumstances of the case, since the ACRS 

consultants had testified via subpoena at the Licensing Board level at intervenors’ 

request. Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), 

ALAB-604, 12 NRC 149, 150-51 (1980). 

3.13.2 Sequestration of Witnesses 

In Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-379, 5 NRC 565 (1977), 

the Appeal Board considered a Staff request for discretionary review of a Licensing 

Board ruling which excluded prospective Staff witnesses from the hearing room while 

other witnesses testified. The Appeal Board noted that while sequestration orders 

must be granted as a matter of right in federal district court cases, NRC adjudicatory 

proceedings are clearly different in that direct testimony is generally pre-filed in writing. 

As such, all potential witnesses know in advance the basic positions to be taken by 

other witnesses. In this situation, the value of sequestration is reduced. Moreover, the 

highly technical and complex nature of NRC proceedings often demands that counsel 

have the aid of expert assistance during cross-examination of other parties’ witnesses. 

In view of these considerations, the Appeal Board held that sequestration is only 

proper where there is some countervailing purpose which it could serve. The Board 

found no such purpose in this case, but in fact, found that sequestration here 

threatened to impede full development of the record. As such, the Licensing Board’s 

order was overturned. The Appeal Board also noted that there may be grounds to 

distinguish between Staff witnesses and other witnesses with respect to sequestration, 

with the Staff being less subject to sequestration than other witnesses, depending on 

the circumstances. Id.

3.13.3 Board Witnesses 

Where an intervenor would call a witness but for the intervenor’s financial inability to do 

so, the Licensing Board may call the witness as a Board witness and authorize NRC 

payment of the usual witness fees and expenses. The decision to take such action is a 

matter of Licensing Board discretion, which should be exercised with circumspection. 

If the Board calls such a witness as its own, it should limit cross-examination to the 

scope of the direct examination. Consumers Power Co. (Midland Plant, Units 1 & 2), 

ALAB-382, 5 NRC 603, 607-08 (1977). 

In the interest of a complete record, the Staff may be ordered to submit written 

testimony from a “knowledgeable witness” on a particular issue in a proceeding. 

JUNE 2011 HEARINGS 99
Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-607, 

12 NRC 165, 167 (1980). 

A Licensing Board should not call upon independent consultants to supplement an 

adjudicatory record except in that most extraordinary situation in which it is 

demonstrated that the Board cannot otherwise reach an informed decision on the issue 

involved. 10 C.F.R. Part 2 gives the Staff a dominant role in assessing the radiological 

health and safety aspects of facilities involved in licensing proceedings. Before an 

adjudicatory Board resorts to outside experts of their own, they should give the NRC 

Staff every opportunity to explain, correct and supplement its testimony. S.C. Elec. & 

Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-663, 14 NRC 1140, 1146, 

1156 (1981). See Metro. Edison Co. (Three Mile Island Nuclear Station, Unit 1), 

ALAB-772, 19 NRC 1193, 1247 (1984), rev’d in part on other grounds, CLI-85-2, 21 

NRC 282 (1985). Thus, while Licensing Boards have the authority to call witnesses of 

their own, the exercise of this discretion must be reasonable and, like other Licensing 

Board rulings, is subject to appellate review. A Board may take this extraordinary 

action only after (1) giving the parties to the proceeding every fair opportunity to clarify 

and supplement their previous testimony, and (2) showing why it cannot reach an 

informed decision without independent witnesses. S.C. Elec. & Gas Co.

(Virgil C. Summer Nuclear Station, Unit 1), ALAB-710, 17 NRC 25, 27-28 (1983). 

Applying the criteria of Summer, supra, ALAB-663, 14 NRC at 1156, 1163, a Licensing 

Board determined that it had the authority to call an expert witness to focus on matters 

the Staff had apparently ignored in a motion for summary disposition of a health effects 

contention. Carolina Power & Light Co. (Shearon Harris Nuclear Plant, Units 1 & 2), 

LBP-84-7, 19 NRC 432, 442-43 (1984), reconsid. denied on other grounds, LBP-84-15, 

19 NRC 837, 838 (1984). 

3.13.4 Expert Witnesses 

Although the Federal Rules of Evidence are not directly applicable to Commission 

proceedings, NRC presiding officers often look to the rules for guidance, including 

Federal Rule 702, which allows a witness to be qualified as an expert “[i]f scientific, 

technical, or other specialized knowledge will assist the trier of fact to understand the 

evidence or determine a fact in issue.” Duke Power Co. (William B. McGuire Nuclear 

Station, Units 1 & 2), ALAB-669, 15 NRC 453, 475 (1982), quoting Fed. R. Evid. 702; 

Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), LBP-01-9, 

53 NRC 239, 250 (2001). 

When the qualifications of an expert witness are challenged, the party sponsoring the 

witness has the burden of demonstrating his expertise. Pac. Gas & Elec. Co. (Diablo 

Canyon Nuclear Power Plant, Units 1 & 2), ALAB-410, 5 NRC 1398, 1405 (1977); 

Shearon Harris, LBP-01-9, 53 NRC at 250. 

A witness is qualified as an expert by knowledge, skill, experience, training, or 

education. Philadelphia Elec. Co. (Limerick Generating Station, Units 1 & 2), 

ALAB-819, 22 NRC 681, 732 n.67 (1985), citing Fed. R. Evid. 702. See

William B. McGuire, ALAB-669, 15 NRC at 475; see also Pac. Gas & Elec. Co. (Diablo 

Canyon Nuclear Power Plant, Units 1 & 2), LBP-78-36, 8 NRC 567, 570 (1978) (the 

qualifications of the expert should be established by showing either academic training 

or relevant experience or some combination of the two); Shearon Harris, LBP-01-9, 

HEARINGS 100 JUNE 2011
53 NRC at 250 (same). As to academic training, such training that bears no particular 

relationship to the matters for which an individual is proposed as an expert witness is 

insufficient, standing alone, to qualify the individual as an expert witness on such 

matters. Diablo Canyon, LBP-78-36, 8 NRC at 571. In addition, the fact that a 

proposed expert witness was accepted as an expert on the subject matter by another 

Licensing Board in a separate proceeding does not necessarily mean that a 

subsequent Board will accept the witness as an expert. Id. at 572. 

The value of testimony by a witness at NRC proceedings is not undermined merely by 

the fact that the witness is a hired consultant of a licensee. Metro. Edison Co. (Three 

Mile Island Nuclear Station, Unit 1), ALAB-772, 19 NRC 1193, 1211 (1984), rev’d in 

part on other grounds, CLI-85-2, 21 NRC 282 (1985). 

Disqualifying bias cannot automatically be attributed to equipment vendor witnesses, 

“even if those vendors receive substantial benefits as a result of a decision in their 

favor.” Furthermore, allegations of bias require substantial evidentiary support. Private 

Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-03-8, 

57 NRC 293, 341 (2003), aff’d, Private Fuel Storage, L.L.C. (Independent Spent Fuel 

Storage Installation), CLI-03-8, 58 NRC 11 (2003). 

It is not acceptable for an expert witness to state his ultimate conclusions on a crucial 

aspect of the issue being tried, and then to profess an inability – for whatever reason – 

to provide the foundation for them to the decisionmaker and litigants. Va. Elec. & 

Power Co. (North Anna Nuclear Power Station, Units 1 & 2), ALAB-555, 10 NRC 23, 

26 (1979). See Gen. Pub. Util. Nuclear Corp. (Three Mile Island Nuclear Station, 

Unit 2), LBP-89-7, 29 NRC 138, 171-72 (1989), stay denied on other grounds, 

ALAB-914, 29 NRC 357 (1989), aff’d on other grounds, ALAB-926, 31 NRC 1 (1990). 

An assertion of “engineering judgment,” without any explanation or reasons for the 

judgment, is insufficient to support the conclusions of an expert engineering witness. 

Tex. Util. Generating Co. (Comanche Peak Steam Electric Station, Units 1 & 2), 

LBP-83-81, 18 NRC 1410, 1420 (1983), modified on reconsid. sub nom., Tex. Util. 

Elec. Co. (Comanche Peak Steam Electric Station, Units 1 & 2), LBP-84-10, 

19 NRC 509, 518, 532 (1984). 

A Board should give no weight to the testimony of an asserted expert witness who can 

supply no scientific basis for his statements (other than his belief) and who disparages 

his own testimony. Philadelphia Elec. Co. (Limerick Generating Station, Units 1 & 2), 

ALAB-819, 22 NRC 681, 735 (1985). 

A witness testifying to the results of an analysis need not have at hand every piece of 

datum utilized in performing that analysis. In this area, a rule of reason must be 

applied. It is not unreasonable, however, to insist that, where the outcome on a clearly 

defined and substantial safety or environmental issue may hinge upon the acceptance 

or rejection of an expert conclusion resting in turn upon a performed analysis, the 

witness make available (either in his prepared testimony or on the stand) sufficient 

information pertaining to the details of the analysis to permit the correctness of the 

conclusion to be evaluated. North Anna, ALAB-555, 10 NRC at 27. 

A Licensing Board may refuse to accept an expert witness’s pre-filed written testimony 

as evidence in a licensing proceeding in the absence of the expert’s personal 

appearance for cross-examination at the hearing. La. Power & Light Co. (Waterford 

JUNE 2011 HEARINGS 101
Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076, 1088 n.13 (1983). See 

generally 10 C.F.R. § 2.319 (formerly § 2.718); see also Pac. Gas & Elec. Co. (Diablo 

Canyon Nuclear Power Plant, Unit 2), ALAB-27, 4 AEC 652, 658-59 (1971). 

Merely because expert witnesses for all parties reach similar conclusions on an issue 

does not mean that the Licensing Board must reach the same conclusion. The 

significance of various facts is for the Board to determine from the record, and cannot 

be delegated to the expert witnesses of various parties, even if they all agree. The 

Board must satisfy itself that the conclusions reached have a solid foundation. Ga. 

Inst. of Tech. (Georgia Tech Research Reactor, Atlanta, Georgia), LBP-97-7, 

45 NRC 265, 270 (1997). 

For expert qualification in the security context, technical competence ideally requires 

practical experience, but this is not indispensable in all cases. Too great an insistence 

on “specific” knowledge in selected aspects of the subject should not be used to 

disqualify an expert witness who possesses a strong general background and 

specialized knowledge in the relevant field. Duke Energy Corp. (Catawba Nuclear 

Station, Units 1 & 2), CLI-04-21, 60 NRC 21, 30-31 (2004). 

Licensing Boards must assure themselves that a purported security expert has 

authentic credentials or experience in security. In the security arena, Boards ought not 

tolerate “fishing expeditions” by untutored laypersons. Catawba, CLI-04-21, 

60 NRC at 31. 

 

Where NRC Staff made five separate need-to-know determinations granting a person 

access to safeguards documents in his asserted capacity as the intervenor’s expert, it 

was too late to challenge the expert’s security qualifications and deny access to 

safeguards documents. Catawba, CLI-04-21, 60 NRC at 29. 

An expert’s testimony that challenges a summary disposition motion will not preclude 

summary disposition where the testimony is based upon “subjective belief or 

unsupported speculation” rather than the “methods and procedures of science,” and 

where it is not based upon sufficient facts or data to be the product of applying reliable 

principles and methods to the facts. Duke Cogema Stone & Webster (Savannah River 

Mixed Oxide Fuel Fabrication Facility), LBP-05-4, 61 NRC 71, 98-99 (2005). 

3.13.4.1 Fees for Expert Witnesses 

10 C.F.R. § 2.706 (formerly § 2.740a(h)) incorporates the provisions of Federal 

Rules of Civil Procedure Rule 26(b)(4)(C) pertaining to expert witness fees. Duke 

Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), 

LBP-03-14, 58 NRC 104, 107 (2003). 

Commission regulations provide for expert witness fees in connection with 

depositions (10 C.F.R. § 2.706(a)(8)) (formerly § 2.740(h)) and for subpoenaed 

witnesses (10 C.F.R. § 2.702(d)) (formerly § 2.720(d)). Although these regulations 

specify that the fees will be those “paid to witnesses in the district courts of the 

United States,” there had been some uncertainty as to whether the fees referred to 

were the statutory fees of 28 U.S.C. § 1821 or the expert witness fees of Rule 26 of 

the Federal Rules of Civil Procedure. In Pub. Serv. Co. of Okla. (Black Fox Station, 

Units 1 & 2), LBP-77-18, 5 NRC 671 (1977), the Licensing Board ruled that the fees 

HEARINGS 102 JUNE 2011
referred to in the regulations were the statutory fees. The Board suggested that 

payment of expert witness fees is especially appropriate when the witness was 

secured because of his experience and when the witness’ expert opinions would be 

explored during the deposition or testimony. The Board relied on 10 C.F.R. § 

2.702(f) (formerly § 2.720(f)), which permits conditioning denial of a motion to quash 

subpoenas on compliance with certain terms and conditions which could include 

payment of witness fees, and on 10 C.F.R. § 2.705(c) (formerly § 2.740(c)), which 

provides for orders requiring compliance with terms and conditions, including 

payment of witness fees, prior to deposition. 

3.14 Cross-Examination

Cross-examination must be limited to the scope of the contentions admitted for litigation 

and can appropriately be limited to the scope of direct examination. La. Power & Light 

Co. (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076, 1096 (1983), 

citing Southern Cal. Edison Co. (San Onofre Nuclear Generating Station, Units 2 & 3), 

ALAB-673, 15 NRC 688, 698, aff’d, CLI-82-11, 15 NRC 1383 (1982); Northern States 

Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), CLI-75-1, 1 NRC 1, 2 

(1975); Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), 

ALAB-244, 8 AEC 857, 867, 869 (1974); Houston Lighting & Power Co. (South Texas 

Project, Units 1 & 2), ALAB-799, 21 NRC 360, 378 (1985). 

In exercising its discretion to limit what appears to be improper cross-examination, a 

Licensing Board may insist on some offer of proof or other advance indication of what the 

cross-examiner hopes to elicit from the witness. La. Power & Light Co. (Waterford Steam 

Electric Station, Unit 3), ALAB-732, 17 NRC 1076, 1096 (1983), citing Pub. Serv. Co. of 

Ind. (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-461, 7 NRC 313, 316 

(1978); San Onofre, CLI-82-11, 15 NRC at 697; Prairie Island, ALAB-244, 8 AEC at 869. 

The authority of a Board to demand cross-examination plans is encompassed by the 

Board’s power to control the conduct of hearings and to take all necessary and proper 

measures to prevent argumentative, repetitious, or cumulative cross-examination. 

10 C.F.R. §§ 2.319(g), 2.333(c) (formerly §§ 2.718(e), 2.757(c)). Such plans are 

encouraged by the Commission as a means of making a hearing more efficient and 

expeditious. Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 

13 NRC 452, 457 (1981); South Texas, ALAB-799, 21 NRC at 377. 10 C.F.R. § 2.711 

(formerly § 2.743) clearly gives the presiding officer the discretion to require the submittal 

of a cross-examination plan from any party seeking to conduct cross-examination. The 

plan must contain a brief description of the issues on which cross-examination will be 

conducted, the objectives to be achieved by cross-examination, and the proposed line of 

questions designed to achieve those objectives. 10 C.F.R. §§ 2.711(a), (b), and (c) 

(formerly §§ 2.743(a), (b)(2)); 54 Fed. Reg. 33,168, 33,181 (Aug. 11, 1989). Civil penalty 

proceedings and proceedings for the modification, suspension, or revocation of a license 

are exempt from these requirements. 10 C.F.R. § 2.711(d) (formerly § 2.743(b)(3)). 

Although the Rules of Practice generally require parties to submit cross-examination plans 

to the Licensing Board, they do not require parties to provide other parties with advance 

notice of exhibits they plan to use in cross-examinations. Pac. Gas & Elec. Co. (Diablo 

Canyon Nuclear Power Plant, Units 1 & 2), LBP-94-35, 40 NRC 180 (1994). 

JUNE 2011 HEARINGS 103
Even if cross-examination is wrongly denied, such denial does not constitute prejudicial 

error per se. The complaining party must demonstrate actual prejudice, i.e., that the ruling 

had a substantial effect on the outcome of the proceeding. Waterford, ALAB-732, 

17 NRC at 1096; San Onofre, ALAB-673, 15 NRC at 697 n.14; San Onofre, CLI-82-11, 

15 NRC at 1384; Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), 

ALAB-788, 20 NRC 1102, 1151 (1984); South Texas, ALAB-799, 21 NRC at 376-77; Duke 

Power Co. (Catawba Nuclear Station, Units 1 & 2), ALAB-813, 22 NRC 59, 76 (1985); 

Philadelphia Elec. Co. (Limerick Generating Station, Units 1 & 2), ALAB-836, 

23 NRC 479, 495 (1986). 

3.14.1 Cross-Examination by Intervenors 

The ability to conduct cross-examination in an adjudication is not such a fundamental 

right that its denial constitutes prejudicial error per se. Southern Cal. Edison Co. (San 

Onofre Nuclear Generating Station, Units 2 & 3), CLI-82-11, 15 NRC 1383, 1384 

(1982). 

An intervenor may cross-examine a witness on those portions of his testimony which 

relate to matters that have been placed in controversy by any party to the proceeding, 

as long as the intervenor has a discernible interest in the resolution of the particular 

matter. Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 

& 2), CLI-75-1, 1 NRC 1 (1975), aff’g ALAB-244, 8 AEC 857 (1974). In the case of a 

reopened proceeding, permissible inquiry through cross-examination necessarily 

extends to every matter within the reach of the testimony submitted by the applicants 

and accepted by the Board. Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), 

ALAB-422, 6 NRC 33 (1977). 

It is error to preclude cross-examination on the ground that intervenors have the 

burden of proving the validity of their contentions through their own witnesses since it is 

clear that intervenors may build their case “defensively” through cross-examination. 

Tenn. Valley Auth. (Hartsville Nuclear Plant, Units 1A, 2A, 1B & 2B), ALAB-463, 

7 NRC 341, 356 (1978); Commonwealth Edison Co. (Braidwood Nuclear Power 

Station, Units 1 & 2), LBP-85-20, 21 NRC 1732, 1745 (1985), rev’d and remanded on 

other grounds, CLI-86-8, 23 NRC 241 (1986). 

Calculations underlying a mathematical estimate which is in controversy are clearly 

relevant since they may reveal errors in the computation of that estimate. Hartsville, 

ALAB-463, 7 NRC at 355-56. A Licensing Board might be justified in denying a motion 

to require production of such calculations to aid cross-examination on the estimate as a 

matter of discretion in regulating the course of the hearing. See, e.g., Ill. Power Co.

(Clinton Power Station, Units 1 & 2), ALAB-340, 4 NRC 27, 32-36 (1976). However, an 

Appeal Board will not affirm a decision to cut off cross-examination on the basis that it 

was within the proper limits of a Licensing Board’s discretion when the record does not 

indicate that the Licensing Board considered this discretionary basis. Hartsville, 

ALAB-463, 7 NRC at 356. 

An intervenor’s cross-examination may not be used to expand the number or scope of 

contested issues. Prairie Island, ALAB-244, 8 AEC at 867. To assure that crossexamination does not expand the boundaries of issues, a Licensing Board may: 

HEARINGS 104 JUNE 2011
 (1) require in advance that an intervenor indicate what it will attempt to 

 establish on cross-examination; 

 (2) limit cross-examination if the Board determines that it will be of no value 

 for development of a full record on the issues; 

 (3) halt cross-examination which makes no contribution to development of a 

 record on the issues; and 

 (4) consolidate intervenors for purposes of cross-examination on the same 

 point where it is appropriate to do so in accordance with the provisions of 

 10 C.F.R. § 2.316 (formerly § 2.715a). 

Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), 

ALAB-252, 8 AEC 1175, aff’d, CLI-75-1, 1 NRC 1 (1975). 

While an intervenor has a right to cross-examine on any issue in which he has a 

discernible interest, the Licensing Board has a duty to monitor and restrict such crossexamination to avoid repetition. Prairie Island, CLI-75-1, 1 NRC at 1. The Board is 

explicitly authorized to take the necessary and proper measures to prevent 

argumentative, repetitious or cumulative cross-examination, and the Board may 

properly limit cross-examination which is merely repetitive. Tenn. Valley Auth.

(Hartsville Nuclear Plant, Units 1A, 2A, 1B & 2B), ALAB-367, 5 NRC 92 (1977); Prairie 

Island, ALAB-244, 8 AEC at 868. As a general proposition, no party has a right to 

unfettered or unlimited cross-examination and cross-examination may not be carried to 

unreasonable lengths. The test is whether the information sought is necessary for a 

full and true disclosure of the facts. Prairie Island, ALAB-244, 8 AEC at 869 n.16; Long 

Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-107, 

16 NRC 1667, 1674-75 (1982), citing Section 181 of the AEA and Section 7(c) of the 

Administrative Procedure Act, 5 U.S.C. § 556(d). This limitation applies equally to 

cross-examination on issues raised sua sponte by the Licensing Board in an operating 

license proceeding. Prairie Island, ALAB-244, 8 AEC at 869. 

The scope of cross-examination and the parties that may engage in it in particular 

circumstances are matters of Licensing Board discretion. Pub. Serv. Co. of Ind.

(Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-461, 7 NRC 313, 316 

(1978). 

Unnecessary cross-examination may be limited by a Licensing Board, in its discretion, 

to expedite the orderly presentation of each party’s case. Cross-examination plans 

(submitted to the Board alone) are encouraged, as are trial briefs and pre-filed 

testimony outlines. Statement of Policy on Conduct of Licensing Proceedings, 

CLI-81-8, 13 NRC 452, 457 (1981). 

Licensing Boards are authorized to establish reasonable time limits for the examination 

of witnesses, including cross-examination, under 10 C.F.R. §§ 2.319(d) and 2.333(f) 

(formerly §§ 2.718(c) and 2.757(c)), the Commission’s Statement of Policy on Conduct 

of Licensing Proceedings, CLI-81-8, 13 NRC 452 (1981) and relevant judicial 

decisions. Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), LBP-84-24, 

19 NRC 1418, 1428 (1984); Philadelphia Elec. Co. (Limerick Generating Station, 

Units 1 & 2), ALAB-836, 23 NRC 479, 501 (1986). See MCI Communications Corp. v. 

AT&T, 85 F.R.D. 28 (N.D. Ill. 1979), aff’d, 708 F.2d 1081, 1170-73 (7th Cir. 1983). 

JUNE 2011 HEARINGS 105
A Licensing Board has the authority to direct that parties to an operating license 

proceeding conduct their initial cross-examination by means of prehearing 

examinations in the nature of depositions. Pursuant to 10 C.F.R. § 2.319 (formerly 

§ 2.718), a Board has the power to regulate the course of the hearing and the conduct 

of the participants, as well as to take any other action consistent with the Administrative 

Procedure Act. See also 10 C.F.R. § 2.333 (formerly § 2.757). In expediting the 

hearing process using the case management method contained in Part 2, a Board 

should ensure that the hearings are fair, and produce a record which leads to highquality decisions and adequately protects the public health and safety and the 

environment. Shoreham, LBP-82-107, 16 NRC at 1677, citing Statement of Policy, 

CLI-81-8, 13 NRC at 453. 

In considering whether to impose controls on cross-examination, questions (as raised 

by the applicant) concerning the adequacy of the Appeal Board or Commission Staff to 

review a lengthy record (either on appeal or sua sponte) should not be taken into 

account. To the extent that cross-examination may contribute to a meaningful record, 

it should not be limited to accommodate asserted staffing deficiencies within NRC. 

Consumers Power Co. (Midland Plant, Units 1 & 2), LBP-83-28, 17 NRC 987, 992 

(1983). 

3.14.2 Cross-Examination by Experts 

The Rules of Practice permit a party to have its cross-examination of others performed 

by individuals with technical expertise in the subject matter of the cross-examination 

provided that the proposed interrogator is shown to meet the requirements set forth in 

10 C.F.R. § 2.703(a) (formerly § 2.633(a)). An expert interrogator need not meet the 

same standard of expertise as an expert witness. The standard for interrogators under 

10 C.F.R. § 2.703(a) (formerly § 2.733(a)) is that the individual “is qualified by scientific 

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.” 

Regents of the Univ. of Cal. (UCLA Research Reactor), LBP-81-29, 14 NRC 353, 

354-55 (1981). 

3.14.3 Inability to Cross-Examine as Grounds to Reopen 

Where a Licensing Board holds to its hearing schedule despite a claim by an intervenor 

that he is unable to prepare for the cross-examination of witnesses because of 

scheduling problems, the proceeding will be reopened to allow the intervenor to crossexamine witnesses. Northern Ind. Pub. Serv. Co. (Bailly Generating Station, 

Nuclear-1), ALAB-249, 8 AEC 980 (1974). 

3.15 Record of Hearing

It is not necessary for legal materials, including the Standard Review Plan, regulatory 

guides, documents constituting Staff guidance, and industry code sections applicable to a 

facility, to be in the evidentiary record. Tex. Util. Generating Co. (Comanche Peak Steam 

Electric Station, Units 1 & 2), LBP-83-55, 18 NRC 415, 418 (1983). 

The term “close of the hearing” in 10 C.F.R. § 2.1209 refers to closure of the evidentiary 

record. The administrative record (and the hearing process), however, remain open. The 

Board’s initial decision, any petition for review thereof, and the Commission’s ultimate 

HEARINGS 106 JUNE 2011
decision on review are all docketed and included in the administrative record following 

closure of the Board’s evidentiary record. Entergy Nuclear Generation Co. (Pilgrim 

Nuclear Power Station), CLI-08-9, 67 NRC 353, 355 (2008). 

3.15.1 Supplementing Hearing Record by Affidavits 

Gaps in the record may not be filled by affidavit where the issue is technical and 

complex. Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 

& 2), ALAB-284, 2 NRC 197, 205-06 (1975). 

There is no significance to the content of affidavits which do not disclose the identity of 

individuals making statements in the affidavit. Metro. Edison Co. (Three Mile Island 

Nuclear Station, Unit 2), ALAB-525, 9 NRC 111, 114 (1979). 

3.15.2 Reopening Hearing Record 

If a Licensing Board believes that circumstances warrant reopening the record for 

receipt of additional evidence, it has discretion to take that course of action. Cleveland 

Elec. Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), ALAB-443, 6 NRC 741 

(1977). It may do so, for example, in order to receive additional documents in support 

of motion for summary disposition where the existing record is insufficient. Id. at 752. 

For a discussion of reopening, see Section 4.4. 

Although the standard for reopening the record in an NRC proceeding has been 

variously stated, the traditional standard requires that (1) the motion be timely, 

(2) significant new evidence of a safety question exist, and (3) the new evidence might 

materially affect the outcome. Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power 

Plant, Units 1 & 2), ALAB-728, 17 NRC 777, 800 n.66 (1983), rev. denied, CLI-83-32, 

18 NRC 1309 (1983); Commonwealth Edison Co. (Byron Nuclear Power Station, 

Units 1 & 2), LBP-83-41, 18 NRC 104, 108 (1983); Long Island Lighting Co. (Shoreham 

Nuclear Power Station, Unit 1), LBP-83-57, 18 NRC 445, 476 (1983); Metro. Edison 

Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-774, 19 NRC 1350, 1355 (1984); 

Metro. Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-85-2, 21 NRC 282, 

285 n.3 (1985); Metro. Edison Co. (Three Mile Island Nuclear Station, Unit 1), 

CLI-85-8, 21 NRC 1111, 1113 (1985); Philadelphia Elec. Co. (Limerick Generating 

Station, Units 1 & 2), ALAB-828, 23 NRC 13, 17 (1986); Private Fuel Storage, L.L.C.

(Independent Spent Fuel Storage Installation), CLI-04-10, 61 NRC 131, 140-41 (2004) 

(finding that the Board had correctly applied the “materially alter the outcome of the 

hearing” standard for reopening a hearing record). 

The traditional standard for reopening applies in determining whether a record should 

be reopened on the basis of new information. The standard does not apply where the 

issue is whether the record should be reopened because of an inadequate record. 

Three Mile Island, CLI-85-2, 21 NRC at 285 n.3. 

Reopening a record is an extraordinary action. To prevail, the petitioners must 

demonstrate that their motions are timely, that the issues they seek to litigate are 

significant, and that the information they seek to add to the record would change the 

results. Metro. Edison Co. (Three Mile Island Nuclear Station, Unit 1), LBP-82-34A, 

15 NRC 914, 915 (1982); Union Elec. Co. (Callaway Plant, Unit 1), ALAB-750, 

18 NRC 1205, 1207 (1983); Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power 

JUNE 2011 HEARINGS 107
Plant, Units 1 & 2), ALAB-775, 19 NRC 1361, 1365-66 (1984), aff’d sub nom. San Luis 

Obispo Mothers for Peace v. NRC, 751 F.2d 1287 (D.C. Cir. 1984), aff’d on reh’g en 

banc, 789 F.2d 26 (1986). See also Metro. Edison Co. (Three Mile Island Nuclear 

Station, Unit 1), ALAB-807, 21 NRC 1195, 1216 (1985). Put another way, reopening 

the record is within the Licensing Board’s discretion and need not be done absent a 

showing that the outcome of the proceeding might be affected and that reopening the 

record would involve issues of major significance. Southern Cal. Edison Co. (San 

Onofre Nuclear Generating Station, Units 2 & 3), LBP-82-46, 15 NRC 1531, 1535 

(1982), citing Pub. Serv. Co. of Okla. (Black Fox Station), 10 NRC 775, 804 (1978); 

Pub. Serv. Co. of N.H. (Seabrook Station), 6 NRC 33, 64, n.35 (1977); Vermont 

Yankee Nuclear Power Corp. (Vermont Yankee Station), ALAB-138, 6 AEC 520, 523 

(1973). 

The factors to be applied in reopening the record are not necessarily additive. Even if 

timely, the motion may be denied if it does not raise an issue of major significance. 

However, a matter may be of such gravity that the motion to reopen should be granted 

notwithstanding that it might have been presented earlier. Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), LBP-83-30, 17 NRC 1132, 1143 (1983), 

citing Vermont Yankee, ALAB-138, 6 AEC at 523. 

Even though a matter is timely raised and involves significant safety considerations, no 

reopening of the evidentiary hearing will be required if the affidavits submitted in 

response to the motion demonstrate that there is no genuine unresolved issue of fact, 

i.e., if the undisputed facts establish that the apparently significant safety issue does 

not exist, has been resolved, or for some other reason will have no effect upon the 

outcome of the licensing proceeding. Byron, LBP-83-41, 18 NRC at 109. 

A motion to reopen the evidentiary record because of previously undiscovered 

conclusions of an NRC Staff inspection group must establish the existence of differing 

technical bases for the conclusions. The conclusions alone would be insufficient 

evidence to justify reopening of the record. Three Mile Island, LBP-82-34A, 

15 NRC at 916. 

After the record is closed in an operating license proceeding, where parties proffering 

new contentions do not meet legal standards for further hearings, the fact that the 

contentions raise serious issues is insufficient justification to reopen the record to 

consider them as Board issues when the contentions are being dealt with in the course 

of ongoing NRC investigation and Staff monitoring. Cincinnati Gas & Elec. Co.

(William H. Zimmer Nuclear Power Station, Unit 1), CLI-82-20, 16 NRC 109, 110 

(1982), reversing Cincinnati Gas & Elec. Co. (Zimmer Nuclear Power Station, Unit 1), 

LBP-82-54, 16 NRC 210 (1982); Cleveland Elec. Illuminating Co. (Perry Nuclear Power 

Plant, Units 1 & 2), CLI-86-7, 23 NRC 233, 236 (1986), aff’d sub nom. Ohio v. NRC, 

814 F.2d 258 (6th Cir. 1987). 

The Board must be persuaded that a serious safety matter is at stake before it is 

appropriate for it to require supplementation of the record. Tex. Util. Generating Co.

(Comanche Peak Steam Electric Station, Units 1 & 2), LBP-83-55, 18 NRC 415, 418 

(1983). See Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), ALAB-879, 

26 NRC 410, 412 n.5, 413 (1987). 

HEARINGS 108 JUNE 2011
In proceedings where the evidentiary record has been closed, the record should not be 

reopened on Three Mile Island-related issues relating to either low or full power absent 

a showing, by the moving party, of significant new evidence not included in the record 

that materially affects the decision. Bare allegations or simple submission of new 

contentions is not sufficient; only significant new evidence requires reopening. Diablo 

Canyon, ALAB-728, 17 NRC at 803. 

Newspaper allegations of quality assurance deficiencies, unaccompanied by evidence, 

ordinarily are not sufficient grounds for reopening an evidentiary record. Cleveland 

Elec. Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), LBP-84-3, 

19 NRC 282, 286 (1984). 

3.15.3 Material Not Contained in Hearing Record 

Adjudicatory decisions must be supported by evidence properly in the record. Pac. 

Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-580, 

11 NRC 227, 230 (1980); Philadelphia Elec. Co. (Limerick Generating Station, Units 1 

& 2), ALAB-836, 23 NRC 479, 499 n.33 (1986). The Licensing Board may not base a 

decision on factual material which has not been introduced into evidence. However, if 

extra-record material raises an issue of possible importance to matters such as public 

health, the material may be examined on review. If this examination creates a serious 

doubt about the decision reached by the Licensing Board, the record may be reopened 

for the taking of supplementary evidence. Tenn. Valley Auth. (Hartsville Nuclear Plant, 

Units 1A, 2A, 1B & 2B), ALAB-463, 7 NRC 341, 351-52 (1978). See also Pub. Serv. 

Co. of N.H. (Seabrook Station, Units 1 & 2), ALAB-937, 32 NRC 135, 150-52 (1990). 

Whether or not proffered affidavits would leave the Licensing Board’s result 

unchanged, simple equity precludes reopening the record in aid of intervenors’ 

apparent desire to attack the decision below on fresh grounds. Where the presentation 

of new matter to supplement the record is untimely, its possible significance to the 

outcome of the proceeding is of no moment, at least where the issue to which it relates 

is devoid of grave public health and safety or environmental implications. Puerto Rico 

Elec. Power Auth. (North Coast Nuclear Power Plant, Unit 1), ALAB-648, 14 NRC 34, 

38-39 (1981), citing Kan. Gas & Elec. Co. (Wolf Creek Generating Station, Unit 1), 

ALAB-462, 7 NRC 320, 338 (1978); Northern Ind. Pub. Serv. Co. (Bailly Generating 

Station, Nuclear-1), ALAB-227, 8 AEC 416, 418 (1974); Hartsville, ALAB-463, 

7 NRC at 351. 

3.16 Interlocutory Review via Directed Certification

[See Section 5.12.4] 

3.17 Licensing Board Findings (See Also “Standards for Reversing Licensing Boards

on Findings of Fact and other Matters” in Section 5.6)

The findings of a Licensing Board must be supported by reliable, probative and substantial 

evidence in the record. Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, 

Unit 2), ALAB-254, 8 AEC 1184 (1975). It is well settled that the possibility that 

inconsistent or even contrary views could be drawn if the views of an opposing party’s 

experts were accepted does not prevent the Licensing Board’s findings from being 

JUNE 2011 HEARINGS 109
supported by substantial evidence. Northern Ind. Pub. Serv. Co. (Bailly Generating 

Station, Nuclear-1), ALAB-303, 2 NRC 858, 866 (1975). 

A Licensing Board is free to decide a case on a theory different from that on which it was 

tried but when it does so, it has a concomitant obligation to bring this fact to the attention 

of the parties before it and to afford them a fair opportunity to present argument, and 

where appropriate, evidence. Northern States Power Co. (Prairie Island Nuclear 

Generating Plant, Units 1 & 2), ALAB-455, 7 NRC 41, 55-56 (1978); Niagara Mohawk 

Power Co. (Nine Mile Point Nuclear Station, Unit 2), ALAB-264, 1 NRC 347, 354 (1975). 

Note that as to a Licensing Board’s findings, the appellate tribunal has authority to make 

factual findings on the basis of record evidence which are different from those reached by 

a Licensing Board and can issue supplementary findings of its own. Pub. Serv. Co. of 

N.H. (Seabrook Station, Units 1 & 2), ALAB-422, 6 NRC 33, 42 (1977). The appellate 

decision can be based on grounds completely foreign to those relied upon by the 

Licensing Board so long as the parties had a sufficient opportunity to address those new 

grounds with argument or evidence. Id. In any event, decisions may not be based on 

factual material which has not been introduced into evidence. Otherwise, other parties 

would be deprived of the opportunity to impeach the evidence through cross-examination 

or to refute it with other evidence. Tenn. Valley Auth. (Hartsville Nuclear Plant, Units 1A, 

2A, 1B & 2B), ALAB-463, 7 NRC 341, 351-52 (1978). 

A Licensing Board decision which is pending on appeal will be vacated when, subsequent 

to the issuance of the decision, circumstances have changed so as to significantly alter 

the evidentiary basis of the decision. Where a party seeks to change its position or 

materially alter its earlier presentation to the Licensing Board, the hearing record no 

longer represents the actual situation in the case. Other parties should be given an 

appropriate opportunity to comment upon or to rebut any new information which is 

material to the resolution of issues. Kerr-McGee Chem. Corp. (West Chicago Rare Earths 

Facility), ALAB-944, 33 NRC 81, 115-17 (1991). 

The Board’s initial decision should contain record citations to support the findings. Va. 

Elec. & Power Co. (North Anna Power Station, Units 1, 2, 3, & 4), ALAB-256, 1 NRC 10, 

14 n.8 (1975). Despite the fact that a number of older cases have held that a Licensing 

Board is not required to rule specifically on each finding proposed by the parties, see

Boston Edison Co. (Pilgrim Nuclear Power Station), ALAB-83, 5 AEC 354, 369 (1972), 

aff’d sub nom., Union of Concerned Scientists v. AEC, 449 F.2d 1069 (D.C. Cir 1974); 

Wis. Elec. Power Co. (Point Beach Nuclear Plant, Unit 2), ALAB-78, 5 AEC 319, 321 

(1972), a Licensing Board must clearly state the basis for its decision and, in particular, 

state reasons for rejecting certain evidence in reaching the decision. Seabrook, 

ALAB-422, 6 NRC at 33. While the Seabrook Appeal Board found that the deficiencies in 

the initial decision were not so serious as to require reversal, especially in view of the fact 

that the Appeal Board itself would make findings of fact where necessary, the Appeal 

Board made it clear that a Licensing Board’s blatant failure to follow the Appeal Board’s 

direction in this regard is ground for reversal of the Licensing Board’s decision. 

Notwithstanding its authority to do so, the Appeal Board was normally reluctant to search 

the record to determine whether it included sufficient information to support conclusions 

for which the Licensing Board failed to provide adequate justification. A remand, very 

possibly accompanied by an outright vacating of the result reached below, would be the 

usual course where the Licensing Board’s decision does not adequately support the 

conclusions reached therein. Seabrook, ALAB-422, 6 NRC at 42. See Long Island 

HEARINGS 110 JUNE 2011
Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-905, 28 NRC 515, 530-31 

(1988). Note, however, that in at least one case the Appeal Board did search the record 

where (1) the Licensing Board’s decision preceded the Appeal Board’s decision in 

Seabrook that clearly established this policy and (2) it did not take an extended period of 

time for the Appeal Board to conduct its own evaluation. Hartsville, ALAB-463, 

7 NRC at 368. 

The admonition that Licensing Boards must clearly set forth the basis for their decisions 

applies to a Board’s determination with respect to alternatives under NEPA. Thus, 

although a Licensing Board may utilize its expertise in selecting between alternatives, 

some explanation is necessary. Otherwise, the requirement of the Administrative 

Procedure Act that conclusions be founded upon substantial evidence and based on 

reasoned findings “become[s] lost in the haze of so-called expertise.” Seabrook, 

ALAB-422, 6 NRC at 66. 

When evidence is presented to the Licensing Board in response to appellate instruction 

that a matter is to be investigated, the Licensing Board is obligated to make findings and 

issue a ruling on the matter. Hartsville, ALAB-463, 7 NRC at 368. 

In Pub. Serv. Co. of N.H. (Seabrook Station, Units & 2), ALAB-471, 7 NRC 477, 492 

(1978), the Appeal Board reiterated that the bases for decisions must be set forth in detail, 

noting that, in carrying out its NEPA responsibilities, an agency “must go beyond mere 

assertions and indicate its basis for them so that the end product is” an informed and 

adequately explained judgment. 

Licensing Boards have an obligation “to articulate in reasonable detail the basis for [their] 

determination.” A substantial failure of the Licensing Board in this regard can result in the 

matter being remanded for reconsideration and a full explication of the reasons underlying 

whatever result that Board might reach upon such reconsideration. Pac. Gas & Elec. Co.

(Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-504, 8 NRC 406, 410-12 (1978). 

The fact that a Licensing Board poses questions requiring that evidence be produced at 

the hearing in response to those questions does not create an inviolate duty on the part of 

the Board to make findings specifically addressing the subject matter of the questions. 

Portland Gen. Elec. Co. (Trojan Nuclear Plant), LBP-78-32, 8 NRC 413, 416 (1978). 

A Licensing Board decision which rests significant findings on expert opinion not 

susceptible of being tested on examination of the witness is a fit candidate for reversal. 

Va. Elec. & Power Co. (North Anna Nuclear Power Station, Units 1 & 2), ALAB-555, 

10 NRC 23, 26 (1979). 

Licensing Boards passing on construction permit applications must be satisfied that 

requirements for an operating license, including those involving management capability, 

can be met by the applicant at the time such license is sought. Carolina Power & Light 

Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3, & 4), ALAB-577, 11 NRC 18, 

26-28 (1980), modified, CLI-80-12, 11 NRC 514 (1980). 

Where evidence may have been introduced by intervenors in an operating license 

proceeding, but the construction permit Licensing Board made no explicit findings with 

regard to those matters, and at the construction permit stage the proceeding was not 

contested, the operating license Licensing Board will decline to treat the construction 

JUNE 2011 HEARINGS 111
permit Licensing Board’s general findings as an implicit resolution of matters raised by 

intervenors. Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), LBP-79-1, 

9 NRC 73, 79 n.6 (1979). 

In order to avoid unnecessary and costly delays in starting the operation of a plant, a 

Board may conduct and complete operating license hearings prior to the completion of 

construction of the plant. Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, 

Units 1 & 2), ALAB-811, 21 NRC 1622, 1627 (1985), rev. denied, CLI-85-14, 22 NRC 177, 

178 (1985). Thus, a Board must make some predictive findings and, “in effect, approve 

applicant’s present plans for future regulatory compliance.” Diablo Canyon, ALAB-811, 

21 NRC at 1627, citing Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, 

Units 1 & 2), ALAB-653, 16 NRC 55, 79 (1981). 

Where a Licensing Board is able to make the basic findings prerequisite to the issuances 

of an operating license based on the existing record, there is no mandate (under the AEA 

nor the Commission’s regulations) that the Board may not resolve any contested issue if 

any form of confirmatory analysis was ongoing as of the close of the record on that issue. 

Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-57, 

18 NRC 445, 519 (1983), citing Consol. Edison Co. of N.Y. (Indian Point Nuclear 

Generating Unit 2), CLI-74-23, 7 AEC 947, 951-52 (1974) and Pub. Serv. Co. of Ind.

(Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-461, 7 NRC 313, 318 (1978); 

Diablo Canyon, ALAB-811, 21 NRC at 1628. 

Rulings and findings made in the course of a proceeding are not in themselves sufficient 

reasons to believe that a tribunal is biased for or against a party. Pac. Gas & Elec. Co.

(Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-644, 13 NRC 903, 923 (1981). 

3.17.1 Independent Calculations by Licensing Board 

A Board is free to draw conclusions by applying known engineering principles to and 

making mathematical calculations from facts in the record, whether or not any witness 

purported to attempt this exercise. Vermont Yankee Nuclear Power Corp.

(Vermont Yankee Nuclear Power Station), ALAB-229, 8 AEC 425, 437 (1974), rev’d on 

other grounds, CLI-74-40, 8 AEC 809 (1974). However, the Board must adequately 

explain the basis for its conclusions. Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 

& 2), ALAB-422, 6 NRC 33, 66 (1977). 

3.18 Res Judicata and Collateral Estoppel

Although the judicially developed doctrine of res judicata is not fully applicable in 

administrative proceedings, the considerations of fairness to parties and conservation of 

resources embodied in this doctrine are relevant. Pub. Serv. Co. of N.H. (Seabrook 

Station, Units 1 & 2), CLI-78-1, 7 NRC 1, 27 (1978), citing Houston Lighting & Power Co.

(South Texas Project, Units 1 & 2), CLI-77-13, 5 NRC 1303, 1321 (1977). 

Thus, as a general rule, it appears that res judicata principles may be applied, where 

appropriate, in NRC adjudicatory proceedings. Consistent with those principles, res 

judicata does not apply when the foundation for a proposed action arises after the prior 

ruling advanced as the basis for res judicata or when the party seeking to employ the 

doctrine had the benefit, when he obtained the prior ruling, of a more favorable standard 

HEARINGS 112 JUNE 2011
as to burden of proof than is now available to him. Pub. Serv. Co. of N.H. (Seabrook 

Station, Units 1 & 2), ALAB-349, 4 NRC 235 (1976). 

The common law rules regarding res judicata do not apply, in a strict sense, to 

administrative agencies. Res judicata need not be applied by an administrative agency 

where there are overriding public policy interests which favor relitigation. U.S. Dept. of 

Energy, Project Mgmt. Corp., Tenn. Valley Auth. (Clinch River Breeder Reactor Plant), 

CLI-82-23, 16 NRC 412, 420 (1982), citing Int’l Harvester Co. v. Occupational Safety & 

Health Review Comm’n, 628 F.2d 982, 986 (7th Cir. 1980); Private Fuel Storage, L.L.C.

(Independent Spent Fuel Storage Installation), LBP-02-20, 56 NRC 169, 182 (2002). 

The res judicata or other preclusive effect of a previously decided issue is appropriately 

decided at the time the issue is raised anew. La. Energy Servs., L.P (Claiborne 

Enrichment Ctr.), CLI-98-5, 47 NRC 113, 114 (1998). 

When an agency decision involves substantial policy issues, an agency’s need for 

flexibility outweighs the need for repose provided by the principle of res judicata. Clinch 

River, supra, 16 NRC at 420, citing Maxwell v. NLRB, 414 F.2d 477, 479 (6th Cir. 1969); 

FTC v. Texaco, 555 F.2d 867, 881 (D.C. Cir. 1977), cert. denied, 431 U.S. 974 (1977), 

reh’g denied, 434 U.S. 883 (1977). 

A change in external circumstances is not required for an agency to exercise its basic 

right to change a policy decision and apply a new policy to parties to which an old policy 

applied. Clinch River, CLI-82-23, 16 NRC at 420 (1982), citing Maxwell, 414 F.2d at 479. 

An agency must be free to consider changes that occur in the way it perceives the facts, 

even though the objective circumstances remain unchanged. Clinch River, CLI-82-23, 

16 NRC at 420, citing Maxwell, 414 F.2d at 479; Texaco, 555 F.2d at 874. 

Principles of collateral estoppel, like those of res judicata, may be applied in administrative 

adjudicatory proceedings. United States v. Utah Constr. & Mining Co., 384 U.S. 394, 

421-22 (1966); Toledo Edison Co. (Davis-Besse Nuclear Power Station, Units 1, 2, & 3), 

ALAB-378, 5 NRC 557 (1977); Safety Light Corp. (Bloomsburg Site Decommissioning and 

License Renewal Denials), LBP-95-9, 41 NRC 412, 442 (1995); Private Fuel Storage, 

L.L.C. (Independent Spent Fuel Storage Installation), LBP-02-20, 56 NRC 169, 181 

(2002). 

Collateral estoppel precludes relitigation of issues of law or fact which have been finally 

adjudicated by a tribunal of competent jurisdiction. Davis-Besse, ALAB-378, 

5 NRC at 561; Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 & 2), 

ALAB-182, 7 AEC 210, remanded on other grounds, CLI-74-12, 7 AEC 212 (1974). As in 

judicial proceedings, the purpose of the administrative repose doctrine “is to prevent 

continuing controversy over matters finally determined and to save the parties and boards 

the burden of relitigating old issues.” Safety Light, LBP-95-9, 41 NRC at 442, citing

Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), ALAB-837, 

23 NRC 525, 536 (1986). 

The application of collateral estoppel does not hinge on the correctness of the decision or 

interlocutory ruling of the first tribunal. Moore’s Federal Practice ¶¶0.405[1] and [4.1] at 

629, 634-37 (2d ed. 1974); Davis-Besse, ALAB-378, 5 NRC at 563; Safety Light, 

LBP-95-9, 41 NRC at 446; Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage 

JUNE 2011 HEARINGS 113
Installation), CLI-05-1, 61 NRC 160, 165 n.19 (2005). It is enough that the tribunal had 

jurisdiction to render the decision, that the prior judgment was rendered on the merits, that 

the cause of action was the same, and that the party against whom the doctrine is 

asserted was a party to the earlier litigation or in privity with such a party. Davis-Besse, 

ALAB-378, 5 NRC at 563; see also Private Fuel Storage, CLI-05-1, 61 NRC at 165 

(“Ordinarily, under principles of collateral estoppel, losing parties are not free to relitigate 

already-decided questions in subsequent cases involving the same parties.”). Participants 

in a proceeding cannot be held bound by the record adduced in another proceeding to 

which they were not parties. Philadelphia Elec. Co. (Peach Bottom Station, Units 2 & 3), 

Metro. Edison Co. (Three Mile Island Nuclear Station, Unit 2), Pub. Serv. Elec. & Gas Co.

(Hope Creek Generating Station, Units 1 & 2), ALAB-640, 13 NRC 487, 543 (1981). 

In virtually every case in which the doctrine of collateral estoppel was asserted to prevent 

litigation of a contention, it was held that privity must exist between the intervenor 

advancing the contention and the intervenor which litigated it in the prior proceeding. 

Gen. Elec. Co. (GETR Vallecitos), LBP-85-4, 21 NRC 399, 404 (1985). But see

Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), LBP-81-24, 

14 NRC 175, 199-200 (1981). Conversely, that parties to the former action were not 

joined to the second action does not prevent application of the principle. Dreyfus v. First 

Nat’l Bank of Chicago, 424 F.2d 1171, 1175 (7th Cir. 1970), cert. denied, 400 U.S. 832 

(1970); Hummel v. Equitable Assurance Soc’y, 151 F.2d 994, 996 (7th Cir. 1945); 

Davis-Besse, ALAB-378, 5 NRC at 557. 

Where circumstances have changed (as to context or law, burden of proof or material 

facts) from when the issues were formerly litigated or where public interest calls for 

relitigation of issues, neither collateral estoppel nor res judicata applies. Farley, ALAB182, 7 AEC at 203; Duke Power Co. (William B. McGuire Nuclear Station, Units 1 & 2), 

LBP-77-20, 5 NRC 680 (1977); Gen. Pub. Util. Nuclear Corp. (Three Mile Island Nuclear 

Station, Unit 1), LBP-86-10, 23 NRC 283, 286 (1986); Shearon Harris, ALAB-837, 

23 NRC at 537; Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), LBP-89-3, 

29 NRC 51, 56-57 (1989), aff’d on other grounds, ALAB-915, 29 NRC 427 (1989); Safety 

Light, LBP-95-9, 41 NRC at 445. See Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 

& 2), LBP-89-28, 30 NRC 271, 275 (1989), aff’d on other grounds, ALAB-940, 

32 NRC 225 (1990); Sacramento Mun. Util. Dist. (Rancho Seco Nuclear Generating 

Station), LBP-92-23, 36 NRC 120, 126-27 (1992); Ohio Edison Co. (Perry Nuclear Power 

Plant, Unit 1) and Cleveland Elec. Illuminating Co.; Toledo Edison Co. (Perry Nuclear 

Power Plant, Unit 1; Davis-Besse Nuclear Power Station, Unit 1), LBP-92-32, 

36 NRC 269, 285 (1992), aff’d on other grounds, City of Cleveland v. NRC, 68 F.3d 1361 

(D.C. Cir. 1995); Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage 

Installation), CLI-04-27, 61 NRC 145, 154 (2004). 

Furthermore, under neither principle does a judicial decision become binding on an 

administrative agency if the legislature granted primary authority to decide the substantive 

issue in question to the administrative agency. 2 Davis, Administrative Law Treatise, 

18.12 at 627-28. Cf. United States v. Radio Corp. of America, 358 U.S. 334, 347-52 

(1959). Where application of collateral estoppel would not affect the Commission’s ability 

to control its internal proceedings, however, a prior court decision may be binding on the 

NRC. Davis-Besse, ALAB-378, 5 NRC at 561-62. 

In appropriate circumstances, the doctrines of res judicata and collateral estoppel which 

are found in the judicial setting are equally present in administrative adjudication. One 

HEARINGS 114 JUNE 2011
exception is the existence of broad public policy considerations on special public interest 

factors which would outweigh the reasons underlying the doctrines. Houston Lighting & 

Power Co. (South Texas Project, Units 1 & 2), LBP-79-27, 10 NRC 563, 574-75 (1979). 

Whatever other public policy factors may outweigh the application of the doctrine of 

collateral estoppel, the correctness of the earlier determination of an issue is not among 

them. Simply stated, issue preclusion does not depend on the correctness of a prior 

decision. Safety Light, LBP-95-9, 41 NRC at 446. 

There is no basis under the AEA or NRC rules for excluding safety questions at the 

operating license stage on the basis of their consideration at the construction permit 

stage. The only exception is where the same party tries to raise the same question at 

both the construction permit and operating license stages; principles of res judicata and 

collateral estoppel then come into play. Houston Lighting & Power Co. (South Texas 

Project, Units 1 & 2), LBP-79-10, 9 NRC 439, 464 (1979); Pub. Serv. Co. of N.H.

(Seabrook Station, Units 1 & 2), LBP-82-76, 16 NRC 1029, 1044 (1982), citing Farley, 

CLI-74-12, 7 AEC 203. 

An operating license proceeding should not be utilized to rehash issues already ventilated 

and resolved at the construction permit stage. Seabrook, LBP-82-76, 16 NRC at 1081, 

citing Farley, CLI-74-12, 7 AEC 203; Shearon Harris, ALAB-837, 23 NRC at 536. A 

contention already litigated between the same parties at the construction permit stage 

may not be re-litigated in an operating license proceeding. Duke Power Co. (Catawba 

Nuclear Station, Units 1 & 2), LBP-82-107A, 16 NRC 1791, 1808 (1982), citing Farley, 

ALAB-182, 7 AEC 210; Southern Cal. Edison Co. (San Onofre Nuclear Generating 

Station, Units 2 & 3), LBP-82-3, 15 NRC 61, 78-82 (1982); Shearon Harris, ALAB-837, 

23 NRC at 536. 

A party which has litigated a particular issue during an NRC proceeding is not collaterally 

estopped from litigating in a subsequent proceeding an issue which, although similar, is 

different in degree from the earlier litigated issue. Vermont Yankee Nuclear Power Corp.

(Vermont Yankee Nuclear Power Station), LBP-87-17, 25 NRC 838, 849 (1987), aff’d in 

part and rev’d in part, ALAB-869, 26 NRC 13, 22 (1987), reconsid. denied on other 

grounds, ALAB-876, 26 NRC 277 (1987). 

A party countering a motion for summary judgment based on res judicata need only recite 

the facts found in the other proceedings, and need not independently support those 

“facts.” Houston Lighting & Power Co. (South Texas Project, Units 1 & 2), ALAB-575, 

11 NRC 14, 15 n.3 (1980). 

When certain issues have been adequately explored and resolved in an early phase of a 

proceeding, an intervenor may not re-litigate similar issues in a subsequent phase of the 

proceeding unless there are different circumstances which may have a material bearing 

on the resolution of the issues in the subsequent proceeding. Pub. Serv. Co. of N.H.

(Seabrook Station, Units 1 & 2), ALAB-942, 32 NRC 395, 402-03 (1990). “To produce 

absolution from collateral estoppel on the ground of changed factual circumstances, the 

changes must be of a character and degree such as might place before the court an issue 

different in some respect from the one decided in the initial case.” Safety Light, LBP-95-9, 

41 NRC at 446, citing 1B Moore’s Federal Practice ¶0.448 at III.-642 (2d ed. 1995). 

Similarly, “a change or development in the controlling legal principles” or a “change [in] the 

legal atmosphere” may make issue preclusion inapplicable. Safety Light, LBP-95-9, 

41 NRC at 446; citing Comm’r v. Sunnen, 333 U.S. 591, 599-600 (1948). 

JUNE 2011 HEARINGS 115
Collateral estoppel requires the presence of at least four elements in order to be given 

effect: (1) the issue sought to be precluded must be the same as that involved in the prior 

action; (2) the issue must have been actually litigated; (3) the issue must have been 

determined by a valid and final judgment; and (4) the determination must have been 

essential to the prior judgment. South Texas, LBP-79-27, 10 NRC at 566; Tex. Util. 

Generating Co. (Comanche Peak Steam Electric Station, Units 1 & 2), LBP-83-34, 

18 NRC 36, 38 (1983), citing Fla. Power & Light Co. (St. Lucie Plant, Unit 2), LBP-81-58, 

14 NRC 1167 (1981); Shearon Harris, ALAB-837, 23 NRC at 536-37. See also Safety 

Light, LBP-95-9, 41 NRC at 445. In addition, the prior tribunal must have had jurisdiction 

to render the decision, and the party against whom the doctrine of collateral estoppel is 

asserted must have been a party or in privity with a party to the earlier litigation. 

Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 & 2), LBP-85-11, 

21 NRC 609, 620 (1985), rev’d and remanded on other grounds, CLI-86-8, 23 NRC 241 

(1986); Shearon Harris, ALAB-837, 23 NRC at 536; Tex. Util. Elec. Co. (Comanche Peak 

Steam Electric Station, Unit 2), CLI-93-4, 37 NRC 156, 161 (1993). 

The doctrine of collateral estoppel traditionally applies only when the parties in the case 

were also parties (or their privies) in the previous case. A limited extension of that 

doctrine permits “offensive” collateral estoppel, i.e., the claim by a person not a party to 

previous litigation that an issue had already been fully litigated against the defendant and 

that the defendant should be held to the previous decision because he has already had 

his day in court. Parklane Hosiery Co. v. Leo M. Shore, 439 U.S. 322 (1979). See also

Safety Light, LBP-95-9, 41 NRC at 442. At least one Licensing Board has held that, in 

operating license proceedings, estoppel may also be applied defensively, to preclude an 

intervenor who was not a party from raising issues litigated in the construction permit 

proceeding. Perry, LBP-81-24, 14 NRC at 199-201. This would not appear to be wholly 

consistent with the Appeal Board’s ruling in Peach Bottom, Three Mile Island & Perry, 

ALAB-640, 13 NRC at 543. 

The Licensing Board which conducted the San Onofre operating license hearing relied 

upon similar reasoning. The Board held that, although “identity of the parties” and “full 

prior adjudication of the issues” are textbook elements of the doctrines of res judicata and 

collateral estoppel, they are not prerequisites to foreclosure of issues at the operating 

stage which were or could have been litigated at the construction permit stage. San 

Onofre, LBP-82-3, 15 NRC at 82. When an issue was known at the construction permit 

stage and was the subject of intensive scrutiny, anyone who could have (even if no one 

had) litigated the issue at that time cannot later seek to do so at the operating license 

hearing without a showing of changed circumstances or newly discovered evidence. 

Id. at 78-82. The Appeal Board subsequently found that the Licensing Board had erred. 

Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 & 3), 

ALAB-673, 15 NRC at 694-96; Southern Cal. Edison Co. (San Onofre Nuclear Generating 

Station, Units 2 & 3), ALAB-717, 17 NRC 346, 353-54 (1983). The doctrines of 

res judicata, collateral estoppel and privity provide the appropriate bases for determining 

when concededly different persons or groups should be treated as having their day in 

court. There is no public policy reason why the agency’s administrative proceedings 

warrant a looser standard. San Onofre, ALAB-673, 15 NRC at 696. The Appeal Board 

also disagreed with the Licensing Board’s statement that organizations or persons who 

share a general point of view will adequately represent one another in NRC proceedings. 

Id. at 695-96. 

HEARINGS 116 JUNE 2011
The standard for determining whether persons or organizations are so closely related in 

interest as to adequately represent one another is whether legal accountability between 

the two groups or virtual representation of one group by the other is shown. Comanche 

Peak, LBP-83-34, 18 NRC at 38 n.3, citing San Onofre, ALAB-673, 15 NRC at 695-96 

(dictum). 

A Licensing Board will not apply collateral estoppel to an issue which was considered 

during an uncontested construction permit hearing. When there are no adverse parties in 

the construction permit hearing, there can be neither privity of parties nor “actual prior 

litigation” of the issue sufficient to support reliance on collateral estoppel. Braidwood, 

LBP-85-11, 21 NRC at 622-24, citing San Onofre, ALAB-673, 15 NRC at 694-96. See 

also Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), 

LBP-89-15, 29 NRC 493, 506 (1989) (collateral estoppel does not apply to an issue which 

was reviewed by the NRC Staff, but which was not previously the subject of a contested 

proceeding). 

An intervenor in an operating license proceeding, who was not a party in the construction 

permit proceeding, is not collaterally estopped from raising and re-litigating issues which 

were fully investigated in the construction permit proceeding. However, the intervenor has 

the burden of providing even greater specificity than normally required for its contentions. 

The intervenor must specify how circumstances have changed since the construction 

permit proceeding or how the Licensing Board erred in the construction permit 

proceeding. Shearon Harris, ALAB-837, 23 NRC at 539-40. Cf. Philadelphia Elec. Co.

(Limerick Generating Station, Units 1 & 2), ALAB-804, 21 NRC 587, 590-91 (1985). See 

generally San Onofre, ALAB-717, 17 NRC at 354 n.5. 

Where the legal standards of two statutes are significantly different, the decision of issues 

under one statute does not give rise to collateral estoppel in litigation of similar issues 

under a different statute. Houston Lighting & Power Co. (South Texas Project, Units 1 

& 2), LBP-29-27, 10 NRC 563, 571 (1979). 

The Commission will give effect to factual findings of federal courts and sister agencies 

when those findings are part of a final judgment, even when the party seeking estoppel 

effect was not a party to the initial litigation. Although the application of collateral estoppel 

would be denied if a party could have easily joined in the prior litigation, the Commission 

will apply collateral estoppel even though it is alleged that a party could have joined in, if 

the prior litigation was a complex antitrust case. Furthermore, FERC determinations 

about the applicability of antitrust laws are sufficiently similar to Commission 

determinations to be entitled to collateral estoppel effect. Even a shift in the burden of 

persuasion does not exclude the application of collateral estoppel when it is apparent that 

the FERC opinion did not arrive at its antitrust conclusions because of the burden of 

persuasion. On the other hand, the decision of a federal district court on a summary 

judgment motion is not a final judgment entitled to collateral estoppel effect, particularly 

when the court did not fully explain the grounds for its opinion and when its decision was 

issued after the hearing board had already begun studying the record and had formed 

factual conclusions which were not adequately addressed in the district court’s opinion. 

St. Lucie, LBP-81-58, 14 NRC at 1173-80, 1189-90. The repose doctrines of res judicata, 

collateral estoppel, laches and the law of the case are applicable in NRC adjudicatory 

proceedings generally and all may be applied in antitrust proceedings because “litigation 

has the same conclusive power in antitrust as elsewhere.” Perry & Davis-Besse, 

LBP-92-32, 36 NRC at 285. 

JUNE 2011 HEARINGS 117
Legal determinations made on appeal in a case are controlling precedent, becoming the 

“law of the case.” A prior decision should be followed unless (1) the decision is clearly 

erroneous and its enforcement would work a manifest injustice, (2) intervening controlling 

authority makes reconsideration appropriate, or (3) substantially different evidence was 

adduced at a subsequent trial. Hydro Res., Inc., CLI-06-11, 63 NRC 483, 488-89 (2006). 

The repose doctrine of law of the case acts to bar relitigation of the same issue in 

subsequent stages of the same proceeding. Perry & Davis-Besse, LBP-92-32, 

36 NRC at 283, citing Ariz. v. Cal., 460 U.S. 605, 618 (1983). Pursuant to the law of the 

case doctrine – which is a rule of repose designed to promote judicial economy and 

jurisprudential integrity – the decision of an appellate tribunal should ordinarily be followed 

in all subsequent phases of that case, provided that the particular question in issue was 

“actually decided or decided by necessary implication.” Hydro Res., Inc., LBP-06-1, 

63 NRC 41, 58 (2006), aff’d, CLI-06-14, 63 NRC 510 (2006) (quoting Safety Light Corp.

(Bloomsburg Site Decontamination), CLI-92-9, 35 NRC 156, 159-60 & n.5 (1992)). 

However, where the relevant appellate tribunal did not grant the petition to review the prior 

decision at issue, and the particular interpretation or issue was not even brought to that 

tribunal’s attention as a basis for review, the law of the case doctrine is not apposite. 

Hydro Res., Inc., LBP-06-1, 63 NRC at 58-59. 

That the law of the case doctrine does not apply in a particular circumstance does not 

mean that the prior decision is wholly without precedential value, only that it is limited to its 

power to persuade. Hydro Res., Inc., LBP-06-1, 63 NRC at 59. 

The repose doctrines of res judicata and collateral estoppel are somewhat related. As 

described by the Supreme Court, under the doctrine of res judicata, a judgment on the 

merits in a prior suit bars a second suit involving the same parties or their privities based 

on the same cause of action. Under the doctrine of collateral estoppel, on the other hand, 

the second action is upon a different cause of action and the judgment in the prior suit 

precludes relitigation of issues actually litigated and necessary to the outcome of the first 

action. Parklane, 439 U.S. at 326 n.5. Both doctrines thus bar relitigation by the same 

parties of the same substantive issues. Res judicata also bars litigation of an issue that 

could have been litigated in the prior cause of action. Perry & Davis-Besse, LBP-92-32, 

36 NRC at 284-85. 

To establish the defense of laches, which is an equitable doctrine that bars the late filing 

of a claim if a party would be prejudiced because of its actions during the interim were 

taken in reliance on the right challenged by the claimant, “the evidence must show both 

that the delay was unreasonable and that it prejudiced the defendant.” Van Bourg v. 

Nitze, 388 F. 2d 557, 565 (D.C. Cir. 1967), quoting Powell v. Zuckert, 366 F.2d 634, 636 

(D.C. Cir. 1966); Perry & Davis-Besse, LBP-92-32, 36 NRC at 286. It is well established 

that the absence of subject matter jurisdiction may be raised at any time in a proceeding 

without regard to timeliness considerations. Id. at 387. 

Summary disposition may be denied on the basis of res judicata and collateral estoppel. 

South Texas, ALAB-575, 11 NRC 14, aff’g LBP-79-27, 10 NRC 563 (1979). 

HEARINGS 118 JUNE 2011
3.19 Termination of Proceedings

3.19.1 Procedures for Termination 

10 C.F.R. § 2.203 authorizes a Board to terminate a proceeding, at any time after the 

issuance of a Notice of Hearing, on the basis of a settlement agreement, according due 

weight to the position of the Staff. Robert L. Dickherber & Commonwealth Edison Co.

(Quad Cities Nuclear Power Station), LBP-90-28, 32 NRC 85, 86-87 (1990); St. Mary 

Med. Ctr.-Hobart & St. Mary Med. Ctr.-Gary, LBP-90-46, 32 NRC 463, 465 (1990); Kelli 

J. Hinds (Order Prohibiting Involvement In Licensed Activities), LBP-94-32, 

40 NRC 147 (1994); Ind. Reg’l Cancer Ctr., LBP-94-36, 40 NRC 283, 284 (1994); 

Safety Light Corp. (Bloomsburg Site Decontamination, Decommissioning, License 

Renewal Denials, and Transfer of Assets), LBP-94-41, 40 NRC 340 (1994). The 

rationale for providing due weight to the position of the Staff may be grounded on the 

merited understanding that, in the end, the Staff is responsible for maintaining 

protection for the health and safety of the public and, in the absence of evidence 

substantiating challenges to the exercise of that responsibility, the Staff’s position 

should be upheld. Sequoyah Fuels Corp. (Gore, Oklahoma Site Decontamination and 

Decommissioning Funding), LBP-96-24, 44 NRC 249, 256 (1996). A Licensing Board 

will review a proposed settlement agreement to determine if approval of the agreement 

might prejudice the outcome of a related NRC proceeding. N.Y. Power Auth.

(James A. FitzPatrick Nuclear Power Plant); David M. Manning (Senior Reactor 

Operator), LBP-92-1, 35 NRC 11, 17-18 (1992). 

Termination of adjudicatory proceedings on a construction permit application should be 

accomplished by a motion filed by the applicant’s counsel with those tribunals having 

present jurisdiction over the proceeding. A letter by a lay official to the Commission 

when the Licensing Board has jurisdiction over the matter is not enough. Toledo 

Edison Co. (Davis-Besse Nuclear Power Station, Units 2 & 3), ALAB-622, 12 NRC 667, 

668-9 (1980). 

An operating license proceeding may not be terminated solely on the basis of a 

stipulation whereby all the parties have agreed to terminate the proceeding. The 

parties must formally file a motion to terminate with the Licensing Board. Philadelphia 

Elec. Co. (Limerick Generating Station, Units 1 & 2), LBP-89-14, 29 NRC 487, 488-89 

(1989). 

Where an amendment to an operating license has been noticed, and a petition for 

intervention has been filed, but the application for amendment is withdrawn prior to the 

Licensing Board ruling on the intervention petition and issuing a Notice of Hearing as 

provided in 10 C.F.R. § 2.105(e)(2), the Commission, not the Licensing Board, has 

jurisdiction over the withdrawal of the application. See 10 C.F.R. § 2.107(a); Vermont 

Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), LBP-93-16, 

38 NRC23 (1993), aff’d, CLI-93-20, 38 NRC 83 (1993). However, it is the presiding 

Board or officer that has jurisdiction to terminate proceedings under such 

circumstances. Vermont Yankee, CLI-93-20, 38 NRC at 85. 

If a Licensing Board has not yet issued a Notice of Hearing in a proceeding pursuant to 

10 C.F.R. § 2.105(e)(2), the authority to approve a withdrawal of the application resides 

in the Commission rather than the Board. GPU Nuclear Corp. (Oyster Creek Nuclear 

Generating Station), CLI-99-29, 50 NRC 331, 332 (1999). See 10 C.F.R. § 2.107(a); 

JUNE 2011 HEARINGS 119
Vermont Yankee, CLI-93-20, 38 NRC at 82. Cf. 10 C.F.R. § 2.318(a) (formerly 

§ 2.717(a)). 

Termination of a proceeding with prejudice is not warranted where there has been no 

demonstration that there has been substantial prejudice to an opposing party or to the 

public interest. That an opposing party may “linger in uncertainty” about a future 

application does not constitute such a demonstration. In addition, termination with 

prejudice would be inappropriate in the absence of any information that would justify 

precluding the site from such future use. Northern States Power Co. (Independent 

Spent Fuel Storage Installation), LBP-97-17, 46 NRC 227, 231-32 (1997). 

Under 10 C.F.R. § 2.107(a), when a Notice of Hearing has not been issued, the ASLB 

has the authority to grant a motion to terminate a proceeding without seeking the views 

of various parties or petitioners for intervention. Northern States Power Co.

(Independent Spent Fuel Storage Installation), LBP-97-13, 46 NRC 11, 12 (1997). 

However, the Licensing Board lacks jurisdiction to terminate a matter pending before 

the Commission itself. In addition, where rulings on intervenors’ standing were those 

of the Commission, the Licensing Board lacks jurisdiction to accord a “with prejudice” 

termination with respect to such standing rulings. Yankee Atomic Elec. Co. (Yankee 

Nuclear Power Station), LBP-99-27, 50 NRC 45, 51 (1999). 

3.19.2 Post-Termination Authority of Commission 

10 C.F.R. § 2.107(a) expressly empowers Licensing Boards to impose conditions upon 

the withdrawal of a permit or license application after the issuance of a Notice of 

Hearing. Toledo Edison Co. (Davis-Besse Nuclear Power Station, Units 2 & 3), 

ALAB-622, 12 NRC 667, 669 n.2 (1980). 

Pursuant to its general supervisory authority and responsibility over safety matters, the 

Commission may direct the NRC Staff to evaluate safety matters of potential concern 

which remain after the termination of a proceeding. Ga. Power Co. (Vogtle Electric 

Generating Plant, Units 1 & 2), CLI-92-3, 35 NRC 63, 67-68 (1992). 

3.19.3 Dismissal 

A proceeding is dismissed where there is continuous failure to provide information 

requested by the Board and information important to show petitioner’s continued 

participation in the proceeding. Daniel J. McCool (Order Prohibiting Involvement in 

NRC-Licensed Activities), LBP-95-11, 41 NRC 475, 476-77 (1995). 

Where a contention’s only allegation is that a required analysis was omitted, and the 

applicant subsequently conducts this analysis, the contention must be dismissed as 

moot. Entergy Nuclear Vermont Yankee, L.L.C. (Vermont Yankee Nuclear Power 

Plant), LBP-05-24, 62 NRC 429, 431-32 (2005). 

3.20 Uncontested Proceedings (Mandatory Hearings)

Contested and uncontested designations with regard to mandatory hearings apply issueby-issue, rather than case-by-case. Dominion Nuclear North Anna, LLC (Early Site Permit 

for North Anna ESP Site), CLI-05-17, 62 NRC 5, 34 (2005). 

HEARINGS 120 JUNE 2011
While there are differences between how a Board should adjudicate a contested hearing 

and how it should adjudicate an uncontested hearing, the fact that the relevant regulations 

(10 C.F.R. § 2.104(b)(1)-(2)) instruct Boards to “consider” questions in contested cases 

but to “determine” questions in uncontested cases was not meant to create any of these 

differences. “Consider” and “determine” are synonymous in this context. Both terms 

mean that the Board is to decide the questions involved. North Anna ESP, CLI-05-17, 

62 NRC at 38. 

When adjudicating an uncontested issue in a mandatory hearing, the Board’s job is not to 

attempt to redo the Staff’s work, but rather to conduct a sufficiency review, i.e., to ensure 

that the Staff performed an adequate review and made findings with reasonable support in 

logic and fact. De novo Board reviews of uncontested issues are prohibited. Even still, 

the Board’s review should be a “truly independent” review, and the Board retains the 

authority to ask clarifying questions of witnesses, to order supplementation of the record, 

to reject the Staff’s proposed action, to deny a permit outright, or to set conditions on 

permit approval. North Anna ESP, CLI-05-17, 62 NRC at 39-42; USEC, Inc. (American 

Centrifuge Plant), LBP-07-6, 65 NRC 429 (2007) (initial decision in uncontested 

proceeding on application for uranium enrichment facility); Dominion Nuclear North Anna, 

LLC (Early Site Permit for North Anna ESP Site) LBP-07-09, 65 NRC 539, 555 (2007) 

(Board’s role in uncontested proceeding is to conduct sufficiency review). 

Intervenors in mandatory hearings may not participate on uncontested issues, because 

the scope of intervenor participation is limited to the scope of admitted contentions. North 

Anna ESP, CLI-05-17, 62 NRC at 49. 

Early site permits are “partial construction permits” and are therefore subject to the 

mandatory hearing requirements of Section 189.a. of the AEA, as well as all procedural 

requirements in 10 C.F.R. Part 2 that are applicable to construction permits. Sys. Energy 

Res., Inc. (Early Site Permit for Grand Gulf ESP Site), LBP-07-1, 65 NRC 27, 35 (2007). 

JUNE 2011 HEARINGS 121
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POSTHEARING MATTERS – TABLE OF CONTENTS i JUNE 2011 

TABLE OF CONTENTS 

POSTHEARING MATTERS

4.0 POSTHEARING MATTERS ....................................................... PH 1

4.1 Settlements and Stipulations ................................................... PH 1

4.2 Proposed Findings ................................................................... PH 5

4.2.1 Intervenor’s Right to File Proposed Findings .............................. PH 6 

4.2.2 Failure to File Proposed Findings ............................................... PH 7 

4.3 Initial Decisions......................................................................... PH 8

4.3.1 Reconsideration of Initial Decision .............................................. PH 10 

4.4 Reopening Hearings ................................................................. PH 11

4.4.1 Motions to Reopen Hearing ........................................................ PH 14 

4.4.1.1 Time for Filing Motion to Reopen Hearing .................................. PH 17 

4.4.1.2 Contents of Motion to Reopen Hearing (RESERVED) ............... PH 19 

4.4.2 Grounds for Reopening Hearing ................................................. PH 20 

4.4.3 Reopening Construction Permit Hearings to Address New 

 Generic Issues ......................................................................... PH 25 

4.4.4 Discovery to Obtain Information to Support Reopening 

 of Hearing Is Not Permitted ...................................................... PH 25 

4.5 Motions to Reconsider ............................................................. PH 25

4.6 Procedure on Remand .............................................................. PH 29

4.6.1 Jurisdiction of the Licensing Board on Remand .......................... PH 29 

4.6.2 Jurisdiction of the Board on Remand .......................................... PH 30 

4.6.3 Stays Pending Remand to Licensing Board ............................... PH 30 

4.6.4 Participation of Parties in Remand Proceedings ......................... PH 30 
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JUNE 2011 POSTHEARING MATTERS 1 

4.0 POSTHEARING MATTERS 

4.1 Settlements and Stipulations

The Commission looks with favor upon settlements and is loath to second-guess the 

parties’ (including Staff’s) evaluation of their own interest. The Commission, like the 

Board, looks independently at such settlements to see whether they meet the public 

interest. Sequoyah Fuels Corp. and General Atomics (Gore, OK, site), CLI-97-13, 

46 NRC 195, 205 (1997). 

10 C.F.R. § 2.338 (formerly § 2.759) expressly provides, and the Commission stresses, 

that the fair and reasonable settlement of contested initial licensing proceedings is 

encouraged. Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 

48 NRC 18 (July 28, 1998). 

Apart from its policy of encouraging settlements, the Commission has an equally 

important policy of supporting prompt decisionmaking. This promptness policy carries 

extra weight in license renewal proceedings. Further, until a Licensing Board has 

addressed the threshold issues of standing and admissibility of contentions, the 

proceeding is too inchoate to call for aggressive Board encouragement of settlement. 

Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3), 

CLI-05-24, 62 NRC 551, 568-70 (2005). 

10 C.F.R. § 2.338 provides that parties may submit a proposed settlement to the Board 

(paragraph (a)), authorizes the Board to impose additional requirements as part of a 

settlement (paragraph (e)), mandates certain form requirements for a settlement 

agreement (paragraph (g)), and mandates certain content requirements for a settlement 

agreement (paragraph (h)). Assuming these form and content requirements are met, 

10 C.F.R. § 2.338(i) provides the standards for approval of a settlement. Reading 

paragraphs (e) and (i) together, the Board concluded that it had several options when 

reviewing a settlement, including: (1) approval of the settlement as is, (2) imposition of 

additional requirements on the settlement, or (3) rejection of the settlement and issuance 

of an order requiring adjudication. However, given the Commission’s case law, the Board 

did not prefer the last option. Entergy Nuclear Vermont Yankee, LLC, and Entergy 

Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-06-18, 

63 NRC 830, 836 (2006). 

The Presiding Officer may attempt to facilitate negotiations between parties when they are 

seeking to resolve some or all of the pending issues. International Uranium (USA) Corp.

(Receipt of Material from Tonawanda, NY), LBP-98-20, 48 NRC 137, 138 (1998). 

Parties may seek appointment of a settlement judge in accordance with the Commission’s 

guidance in Rockwell Int’l Corp., CLI-90-05, 31 NRC 337 (1990). The Commission 

encourages the appointment of settlement judges. Since settlement judges are not 

involved in a decisionmaking role and not bound by the ex parte rule, they may avail 

themselves of a wider array of settlement techniques without compromising the rights of 

any of the parties. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage 

Installation), LBP-02-8, 55 NRC 171, 202 (2002). 
POSTHEARING MATTERS 2 JUNE 2011 

When a party requests to withdraw a petition pursuant to a settlement, it is appropriate for 

a Licensing Board to review the settlement to determine whether it is in the public interest. 

10 C.F.R. § 2.338(i) (formerly § 2.759). See also Sequoyah Fuels Corp. and General 

Atomics (Gore, OK, Site Decontamination and Decommissioning Funding), CLI-94-12, 

40 NRC 64, 71 (1994); 21st Century Technologies, Inc. (Fort Worth, TX), CLI-98-1, 

47 NRC 13 (1998). When the Licensing Board has held extensive hearings and has 

analyzed the record, it may not need to see the settlement agreement in order to conclude 

that the withdrawal of the petitioner is in the public interest. Georgia Power Co. (Vogtle 

Electric Generating Plant, Units 1 & 2), LBP-96-16, 44 NRC 59, 63-65 (1996). 

In a proceeding stemming from the denial of a reactor operator license, a Licensing Board 

considered it appropriate, although no actual notice of hearing was issued, to formally 

state its approval of a settlement agreement between the parties. While acknowledging 

the possibility that Board approval may not have been required under 10 C.F.R. § 2.338(i), 

the Board noted that it had granted the hearing request and that the express terms and 

conditions of the settlement agreement had contemplated Board approval. 

David H. Hawes (Reactor Operator License for Vogtle Electric Generating Plant), 

LBP-06-2, 63 NRC 80, 81 n.1 (2006). 

Commission case law holds that the opponents of a settlement may not simply object to a 

settlement in order to block it, but must show some substantial basis for disapproving the 

settlement or the existence of some material issue that requires resolution. The burden is 

on the opponent of a settlement to come forward and show that the public interest 

requires the rejection of the settlement and the adjudication of the issues. This is aptly 

expressed in 10 C.F.R. 2.338(i), which allows the presiding officer to order the 

adjudication of the issues if such adjudication is required in the public interest. Entergy 

Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee 

Nuclear Power Station), LBP-06-18, 63 NRC 830, 836-37 (2006). 

A Licensing Board may refuse to dismiss a proceeding “with prejudice” even though all the 

participants jointly request that action, unless it is persuaded by legal and factual 

arguments in support of that request. General Public Utilities Nuclear Corp. et al. (Three 

Mile Island Nuclear Station, Unit 2), LBP-92-29, 36 NRC 225 (1992). A settlement 

agreement must be submitted to the Licensing Board for a determination as to whether it 

is “fair and reasonable” in accordance with 10 C.F.R. 2.338 (formerly 2.759). A petition 

may be dismissed with prejudice provided that a Board reviews the settlement agreement 

and finds, consistent with 10 C.F.R. 2.338 (formerly 2.759), that it is a “fair and reasonable 

settlement.” General Public Utilities Nuclear Corp. et al. (Three Mile Island Nuclear 

Station, Unit 2), LBP-92-30, 36 NRC 227 (1992). 

Pursuant to 10 C.F.R. § 2.203, in contested enforcement proceedings, settlements are 

subject to the approval of a presiding officer, or if none has been assigned, the Chief 

Administrative Law Judge, according due weight to the position of Staff. The settlement 

need not be immediately approved. If it is in the “public interest,” an adjudication of the 

issues may be ordered. 10 C.F.R. § 2.203; Sequoyah Fuels Corp. and General Atomics, 

LBP-96-18, 42 NRC 150, 154 (1995); Barnett Industrial X-ray, Inc. (Stillwater, Oklahoma), 

LBP-97-19, 46 NRC 237, 238 (1997); Conam Inspection, Inc. (Itasca, IL), LBP 98-31, 

48 NRC 369 (1998). 
JUNE 2011 POSTHEARING MATTERS 3 

The Commission is willing to presume that its Staff acted in the agency’s best interest in 

agreeing to the settlement. Only if the settlement’s opponents show some “substantial” 

public-interest reason to overcome that presumption will the Commission undo the 

settlement. Sequoyah Fuels Corp. and General Atomics (Gore, Oklahoma Site), 

CLI-97-13, 46 NRC 195, 208 (1997). 

In the Orem case, although the Commission expressed reservations about aspects of the 

settlement agreement, the Commission permitted the agreement to take effect since it did 

not find the agreement to be, on balance, against the public interest. Randall C. Orem, 

D.O., CLI-93-14, 37 NRC 423, 427 (1993) (approving settlement after review of 

supplementary information). Cf. Safety Light Corp. (Bloomsburg Site Decontamination, 

Decommissioning, License Renewal Denials, and Transfer of Assets), LBP-94-41, 

40 NRC 340, 341 (1994) (approving settlement after hearing on joint settlement motion). 

 

When the parties agree to settle an enforcement proceeding, the Licensing Board loses 

jurisdiction over the settlement agreement once the Board’s approval under 

10 C.F.R. § 2.203 becomes final agency action. Thereafter, supervisory authority over 

such an agreement rests with the Commission. Eastern Testing & Inspection, Inc., 

LBP-96-11, 43 NRC 279, 282 n.1 (1996), citing Carolina Power & Light Co. (Shearon 

Harris Nuclear Power Plant, Units 1, 2, 3, & 4), CLI-80-12, 11 NRC 514, 417 (1980). 

The NRC is not required under the Atomic Energy Act of 1954, as amended (AEA) to 

adhere without compromise to the remedial plan of an enforcement order. Such a 

restriction would effectively preclude settlement because, by prohibiting any meaningful 

compromise as to remedy, it would eliminate the element of exchange which is the 

groundwork for settlements. Sequoyah Fuels Corp. and General Atomics (Gore, OK, 

site), CLI-97-13, 46 NRC 195, 219-220 (1997). 

In examining a settlement of an enforcement proceeding, the Commission divides its 

public-interest inquiry into four parts: (1) whether, in view of the agency’s original order 

and risks and benefits of further litigation, the settlement result appears unreasonable; 

(2) whether the terms of the settlement appear incapable of effective implementation and 

enforcement; (3) whether the settlement jeopardizes the public health and safety; and 

(4) whether the settlement approval process deprives interested parties of meaningful 

participation. Sequoyah Fuels Corp. and General Atomics (Gore, OK, site), CLI-97-13, 

46 NRC 195, 202-224 (1997). Although these factors were adopted by the Commission in 

an enforcement context, the Commission derived these factors from an array of federal 

court settlement approval decisions that dealt with settlements ranging from public school 

desegregation class actions to antitrust enforcement suits. Given the diversity of these 

cases and the fact that the Board found these factors to be useful in determining whether 

there is some substantial public interest reason to reject a settlement in a licensing 

proceeding, the Board adopted the Sequoyah Fuels factors for the purpose of deciding 

the public interest issue in a licensing proceeding. Vermont Yankee, LBP-06-18, 

63 NRC at 836-37. 

The silence of 10 C.F.R. § 2.338(i) as to the process for determining whether a proposed 

settlement is in the “public interest” indicates that the Commission intended to leave it to 

the discretion of the Board to determine how to make this determination. Here, the Board 

considered the nature of the contentions, the identity of the proposed settlers, and the 
POSTHEARING MATTERS 4 JUNE 2011 

degree of media and public concern in the case, in determining whether to invite public or 

party comment on the proposed settlement. Id. at 838. 

Having found that adjudication of contentions was not “required in the public interest” 

during its review of a proposed settlement agreement, the Board concluded that 

settlement of those same contentions did not raise serious safety, environmental, or 

common defense and security concerns warranting sua sponte review under 

10 C.F.R. § 2.340(a). Id. at 843-44. 

In reviewing risks and benefits, the Commission considers (1) the likelihood (or 

uncertainty) of success at trial; (2) the range of possible recovery and the related risk of 

uncollectibility of a larger trial judgment; and (3) the complexity, length, and expense of 

continued litigation. Sequoyah Fuels Corp. and General Atomics (Gore, OK, site), 

CLI-97-13, 46 NRC 195, 209 (1997). 

Settlement decisions made by the Staff, presumably based on an analysis of litigation risk 

and optimum use of scarce resources, are commonplace in litigation and have previously 

received Commission approval, consistent with the Commission’s longstanding policy of 

encouraging settlements. Pa’ina Hawaii, LLC, CLI-06-18, 64 NRC 1, 7 (2006) (citing, 

e.g., Sequoyah Fuels Corp. (Gore, Oklahoma Site), CLI-97-13, 46 NRC 195, 207-11 

(1997)). 

The essence of settlements is compromise, and the Commission will not judge them on 

the basis of whether the Staff (or any party) achieves in a settlement everything it could 

possibly attain from a fully and successfully litigated proceeding. Sequoyah Fuels Corp. 

and General Atomics (Gore, OK, site), CLI-97-13, 46 NRC 195, 210-211 (1997). 

Pursuant to 10 C.F.R. § 2.203, any negotiated settlement between the Staff and any of 

the parties subject to an enforcement order must be reviewed and approved by the 

presiding officer. Sequoyah Fuels Corp. and General Atomics (Gore, OK, Site 

Decontamination and Decommissioning Funding), CLI-94-12, 40 NRC 64, 71 (1994); 

Sequoyah Fuels Corp. and General Atomics (Gore, OK, Site Decontamination and 

Decommissioning Funding), LBP-96-24, 44 NRC 249, 256 (1996), aff’d, CLI-97-13, 

46 NRC 195 (1997). 

The issue is not whether the matter before the Board presents the best settlement that 

could have been obtained. The Board’s obligation instead is merely to determine whether 

the agreement is within the reaches of the public interest. Sequoyah Fuels Corp. and 

General Atomics (Gore, OK, Site Decontamination and Decommissioning Funding), 

LBP-96-24, 44 NRC 249, 257 (1996), aff’d, CLI-97-13, 46 NRC 195 (1997); Special 

Testing Laboratories, Inc., LBP-99-2, 49 NRC 38, 38 (1999). If the agreement is not in the 

public interest, the Board may require an adjudication of any issues that require resolution 

prior to termination of the proceeding. Sequoyah Fuels Corp. and General Atomics (Gore, 

OK, Site Decontamination and Decommissioning Funding), LBP-96-24, 44 NRC 249, 256 

(1996), aff’d, CLI-97-13, 46 NRC 195 (1997). 

10 C.F.R. § 2.203 sets forth the Board’s function in reviewing settlements in enforcement 

cases. It provides that (1) settlements are subject to the Board’s approval; (2) the Board, 

in considering whether to approve a settlement, should “accord[] due weight to the 
JUNE 2011 POSTHEARING MATTERS 5 

position of the staff”; and (3) the Board may “order such adjudication of the issues as [it] 

may deem to be required in the public interest to dispose of the proceeding.” Sequoyah 

Fuels Corporation and General Atomics (Gore, OK, site), CLI-97-13, 46 NRC 195, 205 

(1997). 

Third parties (including applicants) have no absolute right to veto settlements that the 

agreeing parties find to their advantage. Pa’ina Hawaii, LLC, CLI-06-18, 64 NRC 1, 6 

(2006). 

Administrative agencies and their adjudicators routinely approve stipulations and 

settlements to which fewer than all the parties in a case subscribe; the Commission has 

done so in the enforcement context. Pa’ina Hawaii, LLC, CLI-06-18, 64 NRC 1, 7 (2006) 

(citing Sequoyah Fuels Corp. (Gore, Oklahoma Site), CLI-97-13, 46 NRC 195, 222-23 

(1997)). Commission regulations contemplate this possibility, requiring only “the 

consenting parties” to file the settlement with the Board. Such settlements do not offend 

the rights of an excluded party, particularly where the party has had notice and opportunity 

to comment on the approved stipulation. Pa’ina, CLI-06-18, 64 NRC at 7 (citing

10 C.F.R. § 2.338(g)). 

4.2 Proposed Findings

Each party to a proceeding may file proposed findings of fact and conclusions of law with 

the Licensing Board. Although a number of older cases have held that a Licensing Board 

is not required to rule specifically on each finding proposed by the parties (see Boston 

Edison Co. (Pilgrim Nuclear Power Station), ALAB-83, 5 AEC 354, 369 (1972), aff’d sub 

nom., Union of Concerned Scientists v. AEC, 499 F.2d 1069 (D.C. Cir. 1974); Wisconsin 

Electric Power Co. (Point Beach Nuclear Power Station, Unit 2), ALAB-78, 5 AEC 319, 

321 (1972)), the Appeal Board thereafter indicated that a Licensing Board must clearly 

state the basis for its decision and, in particular, state reasons for rejecting certain 

evidence in reaching the decision. Public Service Co. of New Hampshire (Seabrook 

Station, Units 1 & 2), ALAB-422, 6 NRC 33 (1977). 

10 C.F.R. § 2.712 (formerly § 2.754) permits the Licensing Board to vary its regularly 

provided procedures by altering the ordinary regulatory schedule for findings of fact. The 

NRC Staff is permitted to consider the position of other parties before finalizing its 

position. Consumers Power Co. (Big Rock Point Plant), LBP-82-51A, 16 NRC 180, 181 

(1982). 

10 C.F.R. § 2.712(c) (formerly § 2.754(c)) requires that a party’s proposed findings of fact 

and conclusions of law be confined to the material issues of fact and law presented on the 

record. Public Service Electric & Gas Co. (Salem Nuclear Generating Station, Unit 1), 

ALAB-650, 14 NRC 43, 49 (1981). However, unless a Board has previously required the 

filing of all arguments, a party is not precluded from presenting new arguments in its 

proposed findings of fact. Texas Utilities Generating Co. (Comanche Peak Steam Electric 

Station, Units 1 & 2), LBP-83-81, 18 NRC 1410, 1420-1421 (1983), reconsid. denied sub 

nom. Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 & 2), 

LBP-84-10, 19 NRC 509, 517 (1984). 
POSTHEARING MATTERS 6 JUNE 2011 

Even though a party presents no expert testimony, it may advance proposed findings that 

include technical analyses, opinions, and conclusions, as long as the facts on which they 

are based are matters of record. The Licensing Board must do more than act as an 

“umpire blandly calling balls and strikes for adversaries appearing before it.” The Board 

includes experts who can evaluate the factual material in the record and reach their own 

judgment as to its significance. Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power 

Plant, Units 1 & 2), LBP-94-35, 40 NRC 180, 192 (1994); Georgia Institute of Technology

(Georgia Tech Research Reactor), LBP-97-7, 45 NRC 265, 271 n.7 (1997). 

Requiring the submission to a Licensing Board of proposed findings of fact or a 

comparable document is not a mere formality: it gives that Board the benefit of a party’s 

arguments and permits it to resolve them in the first instance, possibly in the party’s favor, 

obviating later appeal. Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-691, 

16 NRC 897, 906-907 (1982). 

Where an intervenor chooses to file proposed findings, the Board is entitled to take that 

filing as setting forth all of the issues that were contested. Southern California Edison Co.

(San Onofre Nuclear Generating Station, Units 2 & 3), ALAB-717, 17 NRC 346, 371 

(1983). 

A pro se licensee in a civil penalty proceeding will not be held to strict compliance with the 

format requirements for proposed findings if it can make a convincing showing that it 

cannot comply with all the technical pleading requirements of 10 C.F.R. § 2.712(c) 

(formerly § 2.754(c)). Unlike intervenors who voluntarily participate in licensing 

proceedings, a pro se licensee, who has requested a hearing, must participate in a civil 

penalty proceeding in order to protect its property interests. A Licensing Board will use its 

best efforts to understand and rule on the merits of the claims presented. Tulsa Gamma 

Ray, Inc., LBP-91-40, 34 NRC 297, 303-304 (1991). 

When statements in applicant’s proposed findings, which are based on applicant 

statements by witnesses under oath before the presiding officer or as part of its 

application, indicate a willingness to comply with all or a portion of specific, nationally 

recognized consensus standards, little purpose would be served in repeating the terms of 

these commitments as license conditions (or as presiding officer directives). Private Fuel 

Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-00-35, 52 NRC 364, 

410 (2000), citing Commonwealth Edison Co. (Zion Station, Units 1 & 2), ALAB-616, 

12 NRC 419, 423-24 (1980). 

4.2.1 Intervenor’s Right to File Proposed Findings 

An intervenor may file proposed findings of fact and conclusions of law only with 

respect to issues which that party placed in controversy or sought to place in 

controversy in the proceeding. 10 C.F.R. § 2.712(c) (formerly § 2.754(c)); Procedural 

Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,182 (Aug. 11, 1989). 

If an intervenor files additional filings that are not authorized by the Board, they will not 

be considered in the Board’s decision. Yankee Atomic Electric Company (Yankee 

Nuclear Power Station), LBP-98-12, 47 NRC 343, 346 (1998). 
JUNE 2011 POSTHEARING MATTERS 7 

4.2.2 Failure to File Proposed Findings 

Consistent with 10 C.F.R. § 2.712 (formerly § 2.754(b)), contentions for which findings 

have not been submitted may be treated as having been abandoned. Cincinnati Gas 

and Electric Co. (William H. Zimmer Nuclear Power Station, Unit 1), LBP-82-48, 

15 NRC 1549, 1568 (1982). 

The Appeal Board did not feel bound to review exceptions made by a party who had 

failed to file proposed findings on the issues with respect to which the exceptions were 

taken. Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Unit 2), ALAB-280, 

2 NRC 3, 4 n.2 (1975); Northern States Power Co. (Prairie Island Nuclear Generating 

Plant, Units 1 & 2), ALAB-244, 8 AEC 857, 964 (1974). 

A Licensing Board in its discretion may refuse to rule on an issue in its initial decision if 

the party raising the issue has not filed proposed findings of fact and conclusions of 

law. Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 

457 (1981). 

A party that fails to submit proposed findings as requested by a Licensing Board, 

relying instead on the submission of others, assumes the risk that such reliance might 

be misplaced; it must be prepared to live with the consequence that its further appeal 

rights will be waived. Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-691, 

16 NRC 897, 907 (1982). 

The filing of proposed findings of fact is optional, unless the presiding officer directs 

otherwise. The presiding officer is empowered to take a party’s failure to file proposed 

findings, when directed to do so, as a default. Detroit Edison Co. (Enrico Fermi Atomic 

Power Plant, Unit 2), ALAB-709, 17 NRC 17, 21 (1983). 

Even when a Licensing Board order requesting the submission of proposed findings 

has been disregarded, the Commission’s Rules of Practice do not mandate a sanction. 

Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-709, 17 NRC 17, 

23 (1983), citing Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-123, 

6 AEC 331, 332-33 (1973). 

The failure to file proposed findings is subject to sanctions only in those instances 

where a Licensing Board has directed such findings to be filed. Detroit Edison Co.

(Enrico Fermi Atomic Power Plant, Unit 2), ALAB-709, 17 NRC 17, 23 (1983). 

Absent a Board order requiring the submission of proposed findings, an intervenor that 

does not make such a filing is free to pursue on appeal all issues it litigated below. The 

setting of a schedule for filing proposed findings falls short of an explicit direction to file 

findings and thus does not form the basis for finding a party in default. Southern 

California Edison Co. (San Onofre Nuclear Generating Station, Units 2 & 3), 

ALAB-717, 17 NRC 346, 371 (1983), citing former 10 C.F.R. § 2.754 (now § 2.712); 

Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-709, 17 NRC 17, 

21 (1983). 
POSTHEARING MATTERS 8 JUNE 2011 

4.3 Initial Decisions

After the hearing has been concluded and proposed findings have been filed by the 

parties, the Licensing Board will issue its initial decision. This decision can conceivably 

constitute the ultimate agency decision on the matter addressed in the hearing provided 

that it is not modified by subsequent Commission review. Between 1979 and 2007, the 

Licensing Board’s decision authorizing issuance of a full-power operating license (i.e., for 

other than fuel loading and 5% power operations) was considered automatically stayed 

until the Commission completed a sua sponte review to determine whether to stay the 

decision. See Duke Power Co. (William B. McGuire Nuclear Station, Units 1 & 2), 

ALAB-647, 14 NRC 27, 29 (1981); Licenses, Certifications and Appeals for New Nuclear 

Power Plants, 72 Fed. Reg. 49,352, 49,415 (Aug. 28, 2007). 

Prior to 1979, an initial decision authorizing issuance of a construction permit (or operating 

license) was effective when issued, unless stayed. Consumers Power Co. (Midland Plant, 

Units 1 & 2), ALAB-458, 7 NRC 155, 170 (1978). At that time, decisions were 

presumptively valid and, unless or until they were stayed or overturned by appropriate 

authority, were entitled to full recognition. Public Service Co. of New Hampshire

(Seabrook Station, Units 1 & 2), ALAB-423, 6 NRC 115, 117 (1977)). 

Under 10 C.F.R. § 2.713 (formerly § 2.760(a)), an initial decision will constitute the final 

decision of the Commission forty (40) days from its issuance unless a petition for review is 

filed in accordance with 10 C.F.R. § 2.341 (formerly § 2.786), or the Commission directs 

otherwise. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), 

CLI-00-24, 52 NRC 351, 353 (2000). 

In a Federal Register notice dated August 28, 2007 (72 Fed. Reg. 49,352), the 

Commission published a final rule amending 10 C.F.R. § 2.340. The amendments to 

§ 2.410 make presiding officers’ initial decisions in production and utilization facility 

proceedings immediately effective. See 72 Fed. Reg. 44,415-16. 

Previously, with respect to authorization of issuance of construction permits, 

10 C.F.R. § 2.340(f) (formerly § 2.764(e)) provides for Commission review, within sixty 

(60) days of any Licensing Board decision that would otherwise authorize licensing action, 

of any stay motions timely filed. If none were filed, the Commission would within the same 

period of time conduct a sua sponte review and decide whether a stay was warranted 

under the procedures set out in 10 C.F.R. § 2.342 (formerly § 2.788). 

10 C.F.R. 2.340(f) (formerly 2.764(e)) does not apply to manufacturing licenses. A 

manufacturing license can become effective before it becomes final. The Commission 

does not undertake an immediate effectiveness review of a Licensing Board decision 

authorizing its issuance. Offshore Power Systems (Manufacturing License for Floating 

Nuclear Power Plants), CLI-82-37, 16 NRC 1691 (1982). A Licensing Board decision on a 

manufacturing license becomes effective before it becomes final because the issuance of 

a manufacturing license does not conclude the construction permit process; such a 

license does not present health and safety issues requiring immediate review. Cf.

Immediate Effectiveness Rule, 46 Fed. Reg. 47,764, 47,765 (Sep. 30, 1981). 
JUNE 2011 POSTHEARING MATTERS 9 

A Licensing Board’s initial decision must be in writing. Although a Board’s initial decision 

may refer to the transcript of its oral bench rulings, such practice should be avoided in 

complicated NRC licensing hearings because it is counterproductive to meaningful 

appellate review. Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), 

ALAB-819, 22 NRC 681, 727 n.61 (1985). 

The findings and initial decision of the Licensing Board must be supported by reliable, 

probative, and substantial evidence on the record. Pacific Gas & Electric Co. (Diablo 

Canyon Nuclear Power Plant, Unit 2), ALAB-254, 8 AEC 1184, 1187 (1975). The initial 

decision must contain record citations to support the findings. Virginia Electric & Power 

Co. (North Anna Power Station, Units 1, 2, 3 & 4), ALAB-256, 1 NRC 10, 14 n.18 (1975). 

Of course, a Licensing Board’s decision cannot be based on factual material that has not 

been introduced and admitted into evidence. Otherwise, the parties would be deprived of 

the opportunity to impeach the evidence through cross-examination or to rebut it with 

other evidence. Tennessee Valley Authority (Hartsville Nuclear Plant, Units 1A, 2A, 

1B, & 2B), ALAB-463, 7 NRC 341, 351-52 (1978). 

Licensing Boards have a general duty to insure that initial decisions contain a sufficient 

exposition of any ruling on a contested issue of law or fact to enable the parties and a 

reviewing tribunal to readily apprehend the foundation of the ruling. This is not a mere 

procedural nicety but it is a necessity. Cincinnati Gas & Electric Co. (William H. Zimmer 

Nuclear Power Station), ALAB-305, 3 NRC 8, 10-11 (1976); Northern States Power Co.

(Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-104, 6 AEC 179 n.2 (1973). 

Clarity of the basis for the initial decision is important. In circumstances where a 

Licensing Board bases its ruling on an important issue on considerations other than those 

pressed upon it by the litigants themselves, there is especially good reason why the 

foundation for that ruling should be articulated in reasonable detail. Kansas Gas & 

Electric Co. (Wolf Creek Nuclear Generating Station, Unit 1), ALAB-327, 3 NRC 408, 414 

(1976). When resort is made to technical language which a layman could not be expected 

to readily understand, there is an obligation on the part of the opinion writer to make clear 

the precise significance of what is being said in terms of what is being decided. Arizona 

Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2 & 3), ALAB-336, 

4 NRC 3 (1976). 

The requirement that a Licensing Board clearly delineate the basis for its initial decision 

was emphasized by the Appeal Board in Public Service Co. of New Hampshire (Seabrook 

Station, Units 1 & 2), ALAB-422, 6 NRC 33 (1977). Therein, the Appeal Board stressed 

that the Licensing Board must sufficiently inform a party of the disposition of its 

contentions and must, at a minimum, explain why it rejected reasonable and apparently 

reliable evidence contrary to the Board’s findings. 

Thus, a prior Licensing Board ruling in Toledo Edison Co. (Davis-Besse Nuclear Power 

Station, Units 1, 2, & 3), LBP-77-7, 5 NRC 452 (1977), to the effect that a Board need not 

justify its findings by discounting proffered testimony as unreliable appears to be in error 

insofar as it is contrary to the Appeal Board’s guidance in Seabrook. Although normally 

the Appeal Board was disinclined to examine the record to determine whether there is 

support for conclusions which the Licensing Board failed to justify, it evaluated evidence in 

one case because (1) the Licensing Board’s decision preceded the Appeal Board’s 
POSTHEARING MATTERS 10 JUNE 2011 

decision in Seabrook which clearly established this policy, and (2) it did not take much 

time for the Appeal Board to conduct its own evaluation. Tennessee Valley Authority

(Hartsville Nuclear Plant, Units 1A, 2A, 1B & 2B), ALAB-463, 7 NRC 341, 368 (1978). 

In certain circumstances, time may not permit a Licensing Board to prepare and issue its 

detailed opinion. In this situation, one approach is for the Licensing Board to reach its 

conclusion and make a ruling based on the evidentiary record and to issue a subsequent 

detailed decision as time permits. The Appeal Board tacitly approved this approach in 

Public Service Electric & Gas Co. (Hope Creek Generating Station, Units 1 & 2), 

ALAB-460, 7 NRC 204 (1978). This approach has been followed by the Commission in 

the Generic Environmental Statement on Use of Mixed Oxide Fuel (GESMO) proceeding. 

See Mixed Oxide Fuel, CLI-78-10, 7 NRC 711 (1978). 

It is the right and duty of a Licensing Board to include in its decision all determinations of 

matters on an appraisal of the record before it. Carolina Power & Light Co. (Shearon 

Harris Nuclear Power Plant, Units 1, 2, 3 & 4), ALAB-577, 11 NRC 18, 30 (1980), 

modified, CLI-80-12, 11 NRC 514 (1980). 

Partial initial decisions on certain contentions favorable to an applicant can authorize 

issuance of certain permits and licenses, such as a low-power testing license (or, in a 

construction permit proceeding, a limited work authorization), notwithstanding the 

pendency of other contentions. Long Island Lighting Co. (Shoreham Nuclear Power 

Station, Unit 1), LBP-83-30, 17 NRC 1132, 1137 (1983). 

4.3.1 Reconsideration of Initial Decision 

See also Digest Section 4.5 infra. 

Petitions for reconsideration of a final decision must be filed within ten (10) days after 

the date of the decision. 10 C.F.R. § 2.345(a)(1) [former § 2.771(a)] petitions for 

reconsideration of Commission decisions are subject to the requirements of § 2.341(d) 

[former § 2.786(e)]. 

The Commission revised the Rules of Practice in 2004 with respect to motions for 

reconsideration by adopting a “compelling circumstances” standard for motions for 

reconsideration. 10 C.F.R. §§ 2.323(e) and 2.345(b) [former §§ 2.730 and 2.771]. 

This standard, which is a higher standard than prior 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. 

A Licensing Board has inherent power to entertain and grant a motion to reconsider an 

initial decision. Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-235, 

8 AEC 645, 646 (1974). 

A presiding officer in a materials licensing proceeding retains jurisdiction to rule on a 

timely motion for reconsideration of his or her final initial decision even if one of the 
JUNE 2011 POSTHEARING MATTERS 11 

parties subsequently files an appeal. Curators of the University of Missouri

(Trump-S Project), LBP-91-34, 34 NRC 159, 160-61 (1991), aff’d, CLI-95-1, 

41 NRC 71, 93 (1995). 

An authorized, timely-filed petition for reconsideration before the trial tribunal may work 

to toll the time period for filing an appeal. Commonwealth Edison Co. (Byron Nuclear 

Power Station, Units 1 & 2), ALAB-659, 14 NRC 983, 985 (1981). 

A motion for reconsideration should not include new arguments or evidence unless a 

party demonstrates that its new material relates to a Board concern that could not 

reasonably have been anticipated. Texas Utilities Electric Co. (Comanche Peak Steam 

Electric Station, Units 1 & 2), LBP-84-10, 19 NRC 509, 517-18 (1984). 

Petitioners may be granted permission by the Commission to file a consolidated 

request for reconsideration if they have not had full opportunity to address the precise 

theory on which the Commission’s first decision rests. Northern States Power Co.

(Monticello Nuclear Generating Plant; Prairie Island Nuclear Generating Plant, 

Units 1 & 2; Prairie Island Independent Spent Fuel Storage Installation), CLI-00-14, 

52 NRC 37, 51 (2000). 

A properly supported motion for reconsideration should not include previously 

presented arguments that have been rejected. Instead the movant must identify errors 

or deficiencies in the presiding officer’s determination indicating the questioned ruling 

overlooked or misapprehended (1) some legal principle or decision that should have 

controlling effect; or (2) some critical factual information. Reconsideration may be 

appropriately sought to have the presiding officer correct what appear to be 

inharmonious rulings in the same decision. Private Fuel Storage, L.L.C. (Independent 

Spent Fuel Storage Installation), LBP-00-31, 52 NRC 340, 342 (2000). 

4.4 Reopening Hearings

Hearings may be reopened, in appropriate situations, either upon motion of any party or 

sua sponte. Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power 

Station), ALAB-124, 6 AEC 358 (1973). Sua sponte reopening is required when a Board 

becomes aware, from any source, of a significant unresolved safety issue or of possible 

major changes in facts material to the resolution of major environmental issues. 

Commonwealth Edison Co. (LaSalle County Nuclear Station, Units 1 & 2), ALAB-153, 

6 AEC 821 (1973); Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear 

Power Station), ALAB-124, 6 AEC 358 (1973). Where factual disclosures reveal a need 

for further development of an evidentiary record, the record may be reopened for the 

taking of supplementary evidence. Tennessee Valley Authority (Hartsville Nuclear Plant, 

Units 1A, 2A, 1B & 2B), ALAB-463, 7 NRC 341, 352 (1978). For reopening the record, the 

new evidence to be presented need not always be so significant that it would alter the 

Board’s findings or conclusions when the taking of new evidence can be accomplished 

with little or no burden upon the parties. To exclude otherwise competent evidence 

because the Board’s conclusions may be unchanged would not always satisfy the 

requirement that a record suitable for review be preserved. Carolina Power & Light Co.

(Shearon Harris Nuclear Power Plant, Units 1–4), LBP-78-2, 7 NRC 83, 85 (1978). An 

Appeal Board indicated that it might be sympathetic to a motion to reopen a hearing if 
POSTHEARING MATTERS 12 JUNE 2011 

documents appended to an appellate brief constituted newly discovered evidence and 

tended to show that significant testimony in the record was false. Toledo Edison Co. and 

Cleveland Electric Illuminating Co. (Davis-Besse Nuclear Power Station, Units 1, 2& 3); 

Perry Nuclear Power Plant, Units 1 & 2), ALAB-430, 6 NRC 457 (1977). 

Until the full-power license for a nuclear reactor has actually been issued, the possibility of 

a reopened hearing is not entirely foreclosed; a person may request a hearing concerning 

that reactor, even though the original time period specified in the Federal Register notice 

for filing intervention petitions has expired, if the requester can satisfy the late intervention 

and reopening criteria. Texas Utilities Electric Company (Comanche Peak Steam Electric 

Station, Unit 2), CLI-93-1, 37 NRC 1, 3-4 (1993). 

Until a license has actually been issued, the Commission (as opposed to the Licensing 

Board) retains jurisdiction to reopen a closed case. Dominion Nuclear Connecticut, Inc.

(Millstone Nuclear Power Station, Units 2 & 3), CLI-06-4, 63 NRC 32, 35-36 (2006) (citing

Tex. Utils. Elec. Co. (Comanche Peak Steam Electric Station, Unit 2), CLI-93-1, 37 NRC 1 

(1993); Tex. Utils. Elec. Co. (Comanche Peak Steam Electric Station, Units 1 & 2), 

CLI-92-1, 35 NRC 1 (1992)). Until that time, “there remains in existence an operating 

license ‘proceeding’” that can be “reopened,” and the Commission still has authority to 

add conditions to a license or to supplement an environmental impact statement if 

intervenors (or the NRC Staff itself) uncover significant, previously unconsidered, and 

newly arising safety or environmental impacts. Private Fuel Storage, L.L.C. (Independent 

Spent Fuel Storage Installation), CLI-06-3, 63 NRC 19, 24 (2006) (quoting Comanche 

Peak, CLI-92-1, 35 NRC at 6 n.5). If a motion to reopen a closed proceeding is filed after 

a license has been issued, the motion should be considered as a petition for enforcement 

action under 10 C.F.R. § 2.206. Millstone, CLI-06-4, 63 NRC at 36 n.4 (citing Tex. Utils. 

Elec. Co. (Comanche Peak Steam Electric Station, Units 1 & 2), CLI-92-12, 36 NRC 62, 

67 (1992)). 

In license amendment proceedings, the issuance of the amendment does not terminate 

the proceeding. Adjudicatory proceedings on license amendments continue until they are 

over, even if the amendment is issued in the interim. Dominion Nuclear Connecticut, Inc.

(Millstone Power Station, Unit 3), CLI-09-05, 69 NRC 115, 121-22 (2009) (finding that 

issuance of amendment did not preclude consideration of motion to reopen filed before 

issuance of the amendment). 

Motions to reopen a record are governed by 10 C.F.R. § 2.326 (formerly § 2.734), which 

requires that a motion to reopen a closed record be timely, that it address a significant 

safety or environmental issue, and that it demonstrate that a materially different result 

would be or would have been likely had the newly proffered evidence been considered 

initially. Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), 

LBP-94-35, 40 NRC 180 (1994); Private Fuel Storage, L.L.C. (Independent Spent Fuel 

Storage Installation), CLI-04-9, 59 NRC 120, 124 (2004). A motion to reopen a closed 

record is designed to consider additional evidence of a factual or technical nature and is 

not the appropriate method for advising a Board of a non-evidentiary matter such as a 

state court decision. A Board may take official notice of such non-evidentiary matters. 

Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-905, 

28 NRC 515, 521 (1988). 
JUNE 2011 POSTHEARING MATTERS 13 

New regulatory requirements may establish good cause for reopening a record or 

admitting new contentions on matters related to the new requirement. Pacific Gas & 

Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), LBP-81-5, 13 NRC 226, 

233 (1981). 

A motion to reopen the record based on the recent criminal indictment of a tribal leader 

does not meet the standard enumerated in § 2.326 where neither the individual indicted 

nor the tribe would own or operate the facility in question and the intervenor fails to 

suggest how the alleged theft of tribal money or filing false tax returns, even if true, would 

have any bearing on facility operations. PFS, CLI-04-9, 59 NRC at 124. 

Where a record is reopened for further development of the evidence, all parties are 

entitled to an opportunity to test the new evidence and participate fully in the resolution of 

the issues involved. Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Unit 2), 

ALAB-335, 3 NRC 830 (1976). Permissible inquiry through cross-examination at a 

reopened hearing necessarily extends to every matter within the reach of the testimony 

submitted by the applicants and accepted by the Board. Public Service Co. of New 

Hampshire (Seabrook Station, Units 1 & 2), ALAB-422, 6 NRC 33, 94 (1977). 

A Licensing Board lacks the power to reopen a proceeding once final agency action has 

been taken, and it may not effectively “reopen” a proceeding by independently initiating a 

new adjudicatory proceeding. Houston Lighting & Power Co. (South Texas Project, 

Units 1 & 2), ALAB-381, 5 NRC 582 (1977). 

The Licensing Board also lacks the jurisdiction to consider a motion to reopen the record 

after a petition to review a final order has been filed. Northeast Nuclear Energy Co.

(Millstone Nuclear Power Station, Unit 3), CLI-00-25, 52 NRC 355, 357 (2000), n.3, citing

Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), ALAB-726, 

17 NRC 755 (1983); cf. Curators of the University of Missouri (Trump-S Project), CLI-95-1, 

41 NRC 71, 93-94 (1995). 

An adjudicatory board does not have jurisdiction to reopen a record with respect to an 

issue when finality has attached to the resolution of that issue. This conclusion is not 

altered by the fact that the Board has another discrete issue pending before it. Pacific 

Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-782, 

20 NRC 838, 841 n.9 (1984), citing Metropolitan Edison Co. (Three Mile Island Nuclear 

Station, Unit No. 1), ALAB-766, 19 NRC 981, 983 (1984). 

Where finality has attached to some, but not all, issues, new matters may be considered 

when there is a reasonable nexus between those matters and the issues remaining before 

the Board. Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), 

ALAB-930, 31 NRC 343, 346-47 (1990). The focus is on whether and what issues are still 

being reviewed. Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), 

ALAB-792, 20 NRC 1585, 1589 n.4 (1984), clarified, ALAB-797, 21 NRC 6 (1985); Virginia 

Electric & Power Co. (North Anna Nuclear Power Station, Units 1 & 2), ALAB-551, 

9 NRC 704, 708 (1979). 

A Board has no jurisdiction to consider a motion to reopen the record in a proceeding 

where it has issued its final decision and a party has already filed a petition for 
POSTHEARING MATTERS 14 JUNE 2011 

Commission review of the decision. The motion to reopen the record should be referred 

to the Commission for consideration. Philadelphia Electric Co. (Limerick Generating 

Station, Units 1 & 2), ALAB-823, 22 NRC 773, 775 (1985). However, when a subsequent 

motion is filed, and the Secretary, pursuant to her power under 10 C.F.R. § 2.346, refers 

the motion to the Board, jurisdiction returns to the Board to address the motion and the 

proceeding remains alive until the Board acts upon the motion, even if the Commission 

concurrently rules upon the appeal or petition for review before it. Dominion Nuclear 

Connecticut, Inc. (Millstone Power Station, Unit 3), CLI-09-05, 69 NRC 115, 120 (2009). 

The referral, however, does not operate to reopen the record. Id.

Once an appeal has been filed, jurisdiction over the appealed issues passes to the 

appellate tribunal, and motions to reopen on the appealed issues are properly entertained 

by the appellate tribunal. Metropolitan Edison Co. (Three Mile Island Nuclear Station, 

Unit 1), ALAB-699, 16 NRC 1324, 1326-27 (1982). 

Under former practice, the Appeal Board dismissed for want of jurisdiction a motion to 

reopen hearings in a proceeding in which the Appeal Board had issued a final decision, 

followed by the Commission’s election not to review that decision. The Commission’s 

decision represented the agency’s final action, thus ending the Appeal Board’s authority 

over the case. The Appeal Board referred the matter to the Director of Nuclear Reactor 

Regulation because, under the circumstances, he had the discretionary authority to grant 

the relief sought subject to Commission review. Public Service Company of Indiana

(Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-530, 9 NRC 261, 262 (1979). 

See Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-753, 

18 NRC 1321, 1329-1330 (1983). 

The fact that certain issues remain to be litigated does not absolve an intervenor from 

having to meet the standards for reopening the completed hearing on all other radiological 

health and safety issues in order to raise a new non-emergency planning contention. 

Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-30, 

17 NRC 1132, 1138 (1983). 

4.4.1 Motions to Reopen Hearing 

A motion to reopen the hearing can be filed by any party to the proceeding. Although 

the Commission has held that only a party to a proceeding could move to reopen a 

closed record, the Commission has subsequently indicated that a non-party seeking 

late intervention after the record has closed must address both the standard for late 

intervention and the standard for reopening a closed record. Dominion Nuclear 

Connecticut, Inc. (Millstone Power Station, Unit 3), CLI-09-05, 69 NRC 115, 124 

(2009). Stringent criteria must be met in order for the record to be reopened. Pacific 

Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), LBP-94-9, 

39 NRC 122, 123 (1994). See also Private Fuel Storage, L.L.C. (Independent Spent 

Fuel Storage Installation), CLI-06-3, 63 NRC 19, 25 (2006) (“Agencies need not reopen 

adjudicatory proceedings merely on a plea of new evidence”). Pursuant to 

10 C.F.R. § 2.326(a) (formerly § 2.734), a motion to reopen a closed record to consider 

additional evidence will not be granted unless the following criteria are satisfied: 
JUNE 2011 POSTHEARING MATTERS 15 

 (1) The motion must be timely, except that 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 issue. 

 (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. 

 (4) The motion must be accompanied by one or more affidavits which set 

 forth factual and/or technical bases for the movant’s claim. 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 set forth in 

§ 2.326(b) (formerly § 2.734(c)). Each of the criteria must be separately addressed, 

with a specific explanation of why it has been met. Pacific Gas & Electric Co. (Diablo 

Canyon Nuclear Power Plant, Units 1 & 2), LBP-94-9, 39 NRC 122, 123-24 (1994). 

In addition, the motion must be accompanied by one or more affidavits which set forth 

the factual and/or technical bases for the movant’s claims. 10 C.F.R. § 2.326(b) 

(formerly § 2.734(b)); Public Service Co. of New Hampshire (Seabrook Station, 

Units 1 & 2), LBP-89-38, 30 NRC 725, 734 (1989), aff’d on other grounds, ALAB-949, 

33 NRC 484 (1991). In addition, the movant is also free to rely on, for example, Staffapplicant correspondence to establish the existence of a newly discovered issue. 

Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), 

ALAB-124, 6 AEC 358 (1973). A movant may also rely upon documents generated by 

the applicant or the NRC Staff in connection with the construction and regulatory 

oversight of the facility. Louisiana Power & Light Co. (Waterford Steam Electric 

Station, Unit 3), ALAB-812, 22 NRC 5, 17 & n.7 (1985), citing Pacific Gas & Electric 

Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-81-5, 13 NRC 361, 363 

(1981). 

However, a document prepared by another party, such as the Staff, cannot serve as a 

substitute for the affidavit requirement in 10 C.F.R. § 2.326(b). The only authority that 

stands for the proposition that another party’s document could substitute for the 

affidavit requirement, Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear 

Power Station), ALAB-124, 6 AEC 358, 364 (1973), predates codification of the 

reopening standard in 1986. In that case, because the Staff document raised 

significant safety issues on its face, the Appeal Board indicated that the affidavit 

requirement could be bypassed. AmerGen Energy Co., Inc. (Oyster Creek Nuclear 

Generating Station), CLI-08-28, 68 NRC 658, 672-73 & n.55 (2008). 

Under well-settled precedent, the proponent of a motion to reopen the record has a 

heavy burden to bear. See e.g., Amergen Energy Company LLC (Oyster Creek 

Nuclear Generating Station), CLI-08-28, 68 NRC 658, 675 (2008). 

Where a motion to reopen relates to a previously uncontested issue, the moving party 

must satisfy both the standards for admitting late-filed contentions, 10 C.F.R. § 2.309 

(formerly § 2.714(a)), and the criteria established for reopening the record. See e.g., 
POSTHEARING MATTERS 16 JUNE 2011 

Dominion Nuclear Connecticut, Inc. (Millstone Power Station, Unit 3), CLI-09-05, 

69 NRC 115, 124 (2009). 

The new material in support of a motion to reopen must be set forth with a degree of 

particularity in excess of the basis and specificity requirements contained in 

10 C.F.R. 2.309(f) (formerly 2.714(b)) for admissible contentions. Pacific Gas & 

Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-775, 

19 NRC 1361, 1366 (1984), aff’d sub. nom. San Luis Obispo Mothers for Peace 

v. NRC, 751 F.2d 1287 (D.C. Cir. 1984), aff’d on reh’g en banc, 789 F.2d 26 (1986). 

The supporting information must be more than mere allegations; it must be tantamount 

to evidence which would materially affect the previous decision. Id.; Florida Power & 

Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-87-21, 

25 NRC 958, 963 (1987). See Public Service Co. of New Hampshire (Seabrook 

Station, Units 1 & 2), LBP-89-4, 29 NRC 62, 74 (1989), aff’d on other grounds, 

ALAB-918, 29 NRC 473 (1989), remanded on other grounds, Massachusetts v. NRC, 

924 F.2d 311 (D.C. Cir. 1991), appeal dismissed as moot, ALAB-946, 33 NRC 245 

(1991). To satisfy this requirement, it must possess the attributes set forth in 

10 C.F.R. 2.337(a) (formerly 2.743(c)) which defines admissible evidence as “relevant, 

material, and reliable.” Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power 

Plant, Units 1 & 2), ALAB-775, 19 NRC 1361, 1366-67 (1984), aff’d sub. nom. San Luis 

Obispo Mothers for Peace v. NRC, 751 F.2d 1287 (D.C. Cir. 1984), aff’d on reh’g en 

banc, 789 F.2d 26 (1986); Louisiana Power & Light Co. (Waterford Steam Electric 

Station, Unit 3), CLI-86-1, 23 NRC 1, 5 (1986). Embodied in this requirement is the 

idea that evidence presented in affidavit form must be given by competent individuals 

with knowledge of the facts or by experts in the disciplines appropriate to the issues 

raised. Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), 

ALAB-775, 19 NRC 1361, 1367 n.18 (1984), aff’d sub. nom. San Luis Obispo Mothers 

for Peace v. NRC, 751 F.2d 1287 (D.C. Cir. 1984), aff’d on reh’g en banc, 789 F.2d 26 

(1986); Louisiana Power and Light Co. (Waterford Steam Electric Station, Unit 3), 

ALAB-812, 22 NRC 5, 14, 50 n.58 (1985); Florida Power & Light Co. (Turkey Point 

Nuclear Generating Plant, Units 3 & 4), LBP-87-21, 25 NRC 958, 962 (1987); Public 

Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-915, 

29 NRC 427, 431-32 (1989). A “mere showing” of a possible violation of regulatory 

safety standards is not enough. Amergen Energy Company LLC (Oyster Creek 

Nuclear Generating Station), CLI-08-28, 68 NRC 658, 670 (2008). Clearly, a 

dissenting judicial opinion cannot substitute for the movant’s required affidavit and thus 

cannot be considered “additional evidence.” Id. at 673. 

Even though a matter is timely raised and involves significant safety considerations, no 

reopening of the evidentiary hearing will be required if the affidavits submitted in 

response to the motion demonstrate that there is no genuine unresolved issue of fact, 

i.e., if the undisputed facts establish that the apparently significant safety issue does 

not exist, has been resolved, or for some other reason will have no effect upon the 

outcome of the licensing proceeding. Commonwealth Edison Co. (Byron Nuclear 

Power Station, Units 1 & 2), LBP-83-41, 18 NRC 104, 109 (1983); Public Service Co. 

of New Hampshire (Seabrook Station, Units 1 & 2), LBP-89-4, 29 NRC 62, 73 (1989), 

aff’d on other grounds, ALAB-918, 29 NRC 473 (1989), remanded on other grounds, 

Massachusetts v. NRC, 924 F.2d 311 (D.C. Cir. 1991), appeal dismissed as moot, 

ALAB-946, 33 NRC 245 (1991). 
JUNE 2011 POSTHEARING MATTERS 17 

The Commission will not consider a last-second reopening of an adjudication and a 

restart of Licensing Board proceedings based on a pleading that is defective on its 

face. Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, 

Units 2 & 3), CLI-06-4, 63 NRC 32, 38 (2006). 

Exhibits which are illegible, unintelligible, undated or outdated, or unidentified as to 

their source have no probative value and do not support a motion to reopen. In order 

to comply with the requirement for “relevant, material, and reliable” evidence, a movant 

should cite to specific portions of the exhibits and explain the points or purposes which 

the exhibits serve. Louisiana Power and Light Co. (Waterford Steam Electric Station, 

Unit 3), ALAB-812, 22 NRC 5, 21 n.16, 42-43 (1985); Pacific Gas & Electric Co. (Diablo 

Canyon Nuclear Power Plant, Units 1 & 2), ALAB-775, 19 NRC 1361, 1366-67 (1984), 

aff’d sub. nom. San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287 (D.C. Cir. 

1984), aff’d on reh’g en banc, 789 F.2d 26 (1986). 

A draft document does not provide particularly useful support for a motion to reopen. A 

draft is a working document which may reasonably undergo several revisions before it 

is finalized to reflect the actual intended position of the preparer. Louisiana Power & 

Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-812, 22 NRC 5, 43 n.47 

(1985). 

Where a motion to reopen is related to a litigated issue, the effect of the new evidence 

on the outcome of that issue can be examined before or after a decision. To the extent 

a motion to reopen is not related to a litigated issue, then the outcome to be judged is 

not that of a particular issue, but that of the action which may be permitted by the 

outcome of the licensing proceedings. Long Island Lighting Co. (Shoreham Nuclear 

Power Station, Unit 1), LBP-83-30, 17 NRC 1132, 1142 (1983), citing Vermont Yankee 

Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-138, 

6 AEC 520, 523 (1973). 

4.4.1.1 Time for Filing Motion to Reopen Hearing 

A motion to reopen may be filed and the Licensing Board may entertain it at any 

time prior to issuance of the full initial decision. Wisconsin Electric Power Co. (Point 

Beach Nuclear Plant, Unit 2), ALAB-86, 5 AEC 376 (1972). Where a motion to 

reopen was mailed before the Licensing Board rendered the final decision but was 

received by the Board after the decision, the Board denied the motion on grounds 

that it lacked jurisdiction to take any action. The Appeal Board implied that this may 

be incorrect under former § 2.712(e)(3) (now 10 C.F.R. § 2.305(e)(3)) concerning 

service by mail, but did not reach the jurisdictional question since the motion was 

properly denied on the merits. Northern States Power Co. (Tyrone Energy Park, 

Unit 1), ALAB-464, 7 NRC 372, 374 n.4 (1978). 

Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 2), ALAB-86, 

5 AEC 376 (1972) did not establish an ironclad rule with respect to timing of the 

motion. In deciding whether to reopen, the Licensing Board will consider both the 

timing of the motion and the safety significance of the matter which has been raised. 

The motion will be denied if it is untimely and the matter raised is insignificant. The 
POSTHEARING MATTERS 18 JUNE 2011 

motion may be denied, even if timely, if the matter raised is not grave or significant. 

If the matter is of great significance to public or plant safety, the motion could be 

granted even if it was not made in a timely manner. As such, the controlling 

consideration is the seriousness of the issue raised. Vermont Yankee Nuclear 

Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520, 523 

(1973); Vermont Yankee, ALAB-126, 6 AEC 393 (1973); Vermont Yankee, 

ALAB-124, 6 AEC 365 (1973). See also Philadelphia Electric Co. (Limerick 

Generating Station, Units 1 & 2), ALAB-828, 23 NRC 13, 19 (1986) (most important 

factor to consider is the safety significance of the issue raised); Philadelphia Electric 

Co. (Limerick Generating Station, Units 1 & 2), ALAB-834, 23 NRC 263, 264 (1986). 

When timeliness is a factor, it is to be judged from the date of discovery of the new 

issue. 

An untimely motion to reopen the record may be granted, but the movant has the 

increased burden of demonstrating that the motion raises an exceptionally grave 

issue rather than just a significant issue. Public Service Co. of New Hampshire

(Seabrook Station, Units 1 & 2), ALAB-886, 27 NRC 74, 76, 78 (1988), citing former 

§ 2.734(a)(1)(now 10 C.F.R. § 2.326(a)(1)). See Dominion Nuclear Connecticut, 

Inc. (Millstone Nuclear Power Station, Unit 3), LBP-02-5, 55 NRC 131, 140 (2002). 

A party cannot justify the untimely filing of a reopening motion based upon a 

particular event before one Licensing Board on the ground that a reopening motion 

based on the same event was timely filed and pending before a second Licensing 

Board which was considering related issues. Each Licensing Board only has 

jurisdiction to resolve those issues which have been specifically delegated to it. 

Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-927, 

31 NRC 137, 140 (1990). 

A Board will reject as untimely a motion to reopen which is based on information 

which has been available to a party for one to two years. Metropolitan Edison Co.

(Three Mile Island Nuclear Station, Unit 1), ALAB-815, 22 NRC 198, 201 (1985); 

Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), LBP-90-12, 

31 NRC 427, 445-46 (1990), aff’d in part on other grounds, ALAB-934, 32 NRC 1 

(1990). 

A person seeking late intervention in a proceeding in which the record has been 

closed must also address the reopening standards, but not necessarily in the same 

petition. However, it is in the petitioner’s best interest to address both the late 

intervention and reopening standards together. See Texas Utilities Electric Co.

(Comanche Peak Steam Electric Station, Unit 2), CLI-93-4, 37 NRC 156, 162 

(1993). 

For a reopening motion to be timely presented, the movant must show that the issue 

sought to be raised could not have been raised earlier. Pacific Gas and Electric Co.

(Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-775, 19 NRC 1361, 1366 

(1984), aff’d sub. nom. San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287 

(D.C. Cir. 1984), aff’d on reh’g en banc, 789 F.2d 26 (1986). A party cannot justify 

its tardiness in filing a motion to reopen by noting that the Board was no longer 

receiving evidence on the issue when the new information on that issue became 
JUNE 2011 POSTHEARING MATTERS 19 

available. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), 

ALAB-815, 22 NRC 198, 201-02 (1985). 

A party’s opportunity to gain access to information is a significant factor in a Board’s 

determination of whether a motion based on such information is timely filed. 

Houston Lighting & Power Co. (South Texas Project, Units 1 & 2), LBP-85-19, 

21 NRC 1707, 1723 (1985), citing Cleveland Electric Illuminating Co. (Perry Nuclear 

Power Plant, Units 1 & 2), LBP-83-52, 18 NRC 256, 258 (1983). See also Pacific 

Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-775, 

19 NRC 1361, 1369 (1984), aff’d sub. nom. San Luis Obispo Mothers for Peace v. 

NRC, 751 F.2d 1287 (D.C. Cir. 1984), aff’d on reh’g en banc, 789 F.2d 26 (1986). 

A motion to reopen the record in order to admit a new contention must be filed 

promptly after the relevant information needed to frame the contention becomes 

available. Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), 

CLI-90-6, 31 NRC 483, 487 (1990). 

A matter may be of such gravity that a motion to reopen may be granted 

notwithstanding that it might have been presented earlier. Metropolitan Edison Co.

(Three Mile Island Nuclear Station, Unit 1), ALAB-738, 18 NRC 177, 188 n.17 

(1983), rev’d in part on other grounds, CLI-85-2, 21 NRC 282 (1985), citing Vermont 

Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-138, 

6 AEC 520, 523 (1973); Houston Lighting & Power Co. (South Texas Project, 

Units 1 & 2), LBP-85-19, 21 NRC 1707, 1723 (1985); Houston Lighting & Power Co.

(South Texas Project, Units 1 & 2), LBP-85-45, 22 NRC 819, 822, 826 (1985). 

The Vermont Yankee tests for reopening the evidentiary record are only partially 

applicable where reopening the record is the Board’s sua sponte action. The Board 

has broader responsibilities than do adversary parties, and the timeliness test of 

Vermont Yankee does not apply to the Board with the same force as it does to 

parties. Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, 

Units 1-4), LBP-78-2, 7 NRC 83, 85 (1978). 

Where jurisdiction terminated on all but a few issues, a Board may not entertain new 

issues unrelated to those over which it retains jurisdiction, even where there are 

supervening developments. The Board has no jurisdiction to consider such matters. 

Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Unit 2), ALAB-579, 

11 NRC 223, 225-226 (1980). 

4.4.1.2 Contents of Motion to Reopen Hearing 

Pursuant to 10 C.F.R. § 2.326(b), a motion to reopen must be accompanied by 

affidavits of qualified experts presenting the factual and/or technical basis 

supporting the claim that there is a significant safety issue, together with evidence 

that meets the Commission’s admissibility standards in 10 C.F.R. § 2.337. 

A document prepared by another party does not satisfy the requirement of an 

affidavit demonstrating a significant safety issue unless the document on its face 

demonstrates a significant safety issue. A dissenting judicial opinion cannot 
POSTHEARING MATTERS 20 JUNE 2011 

substitute for the affidavit the moving party must submit, with its motion to reopen, 

and thus cannot be considered “additional evidence” supporting the motion to 

reopen. AmerGen Energy Co., Inc. (Oyster Creek Nuclear Generating Station), 

CLI-08-28, 68 NRC 658, 672-73 & n.55 (2008) (discussing Vermont Yankee 

Nuclear Power Corp. (Vermont Yankee Nuclear Power station), ALAB-124, 

6 AEC 358, 364 (1973)). A Board must decide the motion to reopen on the 

pleadings before it and has no authority to engage in discovery or perform 

supplementary technical analysis to supplement the pleadings before it. Id. at 675). 

Affidavits submitted in support of a motion to reopen must demonstrate that a 

materially different result is likely, i.e., the evidence supporting the motion to reopen 

would likely have materially altered the outcome of the proceeding. Affidavits 

containing bare assertions or speculation and lacking technical details or analysis 

are insufficient to demonstrate that a materially different result is likely. AmerGen 

Energy Co., Inc. (Oyster Creek Nuclear Generating Station), LBP-08-12, 68 NRC 5, 

22 aff’d CLI-08-28, 68 NRC 658 (2008). 

4.4.2 Grounds for Reopening Hearing 

The standard for admitting a new contention after the record is closed is higher than for 

an ordinary late-filed contention. New information is not enough to reopen a closed 

record at the last minute, unless it is significant and plausible enough to require 

reasonable minds to inquire further and is likely to trigger a different result. Private 

Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-05-12, 

61 NRC 345, 350 (2005). 

Where a motion to reopen an evidentiary hearing is filed after the initial decision, the 

standard is that the motion must establish that a different result would have been 

reached had the respective information been considered initially. Where the record 

has been closed but a motion was filed before the initial decision, the standard is 

whether the outcome of the proceeding might be affected. Commonwealth Edison Co.

(Byron Nuclear Power Station, Units 1 & 2), LBP-83-41, 18 NRC 104, 108 (1983). 

In certain instances the record may be reopened, even though the new evidence to be 

received might not be so significant as to alter the original findings or conclusions, 

where the new evidence can be received with little or no burden upon the parties. 

Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1–4), 

LBP-78-2, 7 NRC 83, 85 (1978). Reopening has also been ordered where the 

changed circumstances involved a hotly contested issue. Northern Indiana Public 

Service Co. (Bailly Generating Station, Nuclear-1), CLI-74-39, 8 AEC 631 (1974). 

Moreover, considerations of fairness and of affording a party a proper opportunity to 

ventilate the issues sometimes dictate that a hearing be reopened. For example, 

where a Licensing Board maintained its hearing schedule despite an intervenor’s 

assertion that he was unable to attend the hearing and prepare for cross-examination, 

the Appeal Board held that the hearing must be reopened to allow the intervenor to 

conduct cross-examination of certain witnesses. Northern Indiana Public Service Co.

(Bailly Generating Station, Nuclear-1), ALAB-249, 8 AEC 980 (1974). 
JUNE 2011 POSTHEARING MATTERS 21 

In order to reopen a licensing proceeding, an intervenor must show a change in 

material fact which warrants litigation anew. Carolina Power & Light Co. (Shearon 

Harris Nuclear Power Plant, Units 1–4), CLI-79-10, 10 NRC 675, 677 (1979). 

A decision as to whether to reopen a hearing will be made on the basis of the motion 

and the filings in opposition thereto, all of which amount to a “mini record.” Vermont 

Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-138, 

6 AEC 520 (1973), reconsid. den., ALAB-141, 6 AEC 576. The hearing must be 

reopened whenever a “significant,” unresolved safety question is involved. Vermont 

Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-138, 

6 AEC 520 (1973), reconsid. den., ALAB-141, 6 AEC 576; Vermont Yankee, 

ALAB-124, 6 AEC 358, 365 n.10 (1973). The same “significance test” applies when an 

environmental issue is involved. Georgia Power Co. (Alvin W. Vogtle Nuclear Plant, 

Units 1 & 2), ALAB-291, 2 NRC 404 (1975); Commonwealth Edison Co. (LaSalle 

County Nuclear Station, Units 1 & 2), ALAB-153, 6 AEC 821 (1973). See also Digest 

Section 3.13.3. 

Matters to be considered in determining whether to reopen an evidentiary record at the 

request of a party, as set forth in Vermont Yankee Nuclear Power Corp. (Vermont 

Yankee Nuclear Power Station), ALAB-138, 6 AEC 520 (1973), are whether the 

matters sought to be addressed on the reopened record could have been raised 

earlier, whether such matters require further evidence for their resolution, and what the 

seriousness or gravity of such matters is. Carolina Power & Light Co. (Shearon Harris 

Nuclear Power Plant, Units 1–4), LBP-78-2, 7 NRC 83 (1978). As a general 

proposition, a hearing should not be reopened merely because some detail involving 

plant construction or operation has been changed. Rather, to reopen the record at the 

request of a party, it must usually be established that a different result would have 

been reached initially had the material to be introduced on reopening been considered. 

Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), 

ALAB-775, 19 NRC 1361, 1365-66 (1984), aff’d sub. nom. San Luis Obispo Mothers 

for Peace v. NRC, 751 F.2d 1287 (D.C. Cir. 1984), aff’d on reh’g en banc, 789 F.2d 26 

(1986). In fact, an Appeal Board has stated that, after a decision has been rendered, a 

dissatisfied litigant who seeks to persuade an adjudicatory tribunal to reopen the record 

“because some new circumstance has arisen, some new trend has been observed or 

some new fact discovered” has a difficult burden to bear. Duke Power Co. (Catawba 

Nuclear Station, Units 1 & 2), ALAB-359, 4 NRC 619, 620 (1976). At the same time, 

new regulatory requirements may establish good cause for reopening a record or 

admitting new contentions on matters related to the new requirement. Pacific Gas and 

Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), LBP-81-5, 13 NRC 226, 

233 (1981). 

Unlike applicable standards with respect to allowing a new, timely filed contention, the 

Licensing Board can give some consideration to the substance of the information 

sought to be added to the record on a motion to reopen. Consumers Power Co.

(Midland Plant, Units 1 & 2), LBP-84-20, 19 NRC 1285, 1299 n.15 (1984), citing

Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), 

ALAB-138, 6 AEC 520, 523-24 (1973). Because the NRC hearing rules specify that 

reopening the record requires a showing that the new information will likely trigger a 

different result, the Licensing Board properly considered both the party’s new 
POSTHEARING MATTERS 22 JUNE 2011 

information and the opposing party’s contrary evidence (citing 10 C.F.R. § 2.734(a)(3) 

(now § 2.326(a)(3)). PFS, CLI-05-12, 61 NRC at 350. 

The proponent of a motion to reopen the record bears a heavy burden. Normally, the 

motion must be timely and addressed to a significant issue. If an initial decision has 

been rendered on the issue, it must appear that reopening the record may materially 

alter the result. Where a motion to reopen the record is untimely without good cause, 

the movant must demonstrate not only that the issue is significant, but also that the 

public interest demands that the issue be further explored. See Pacific Gas & Electric 

Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-81-5, 13 NRC 361, 

364-365 (1981). 

The criteria for reopening the record govern each issue for which reopening is sought; 

the fortuitous circumstance that a proceeding has been or will be reopened on other 

issues is not significant. Metropolitan Edison Co. (Three Mile Island Nuclear Station, 

Unit 2), ALAB-486, 8 NRC 9 (1978); LBP-85-19, 21 NRC 1707, 1720 (1985). 

A motion to reopen an administrative record may rest on evidence that came into 

existence after the hearing closed. Pacific Gas & Electric Co. (Diablo Canyon Nuclear 

Power Plant, Units 1 & 2), ALAB-598, 11 NRC 876, 879 n.6 (1980). 

A Licensing Board has held that the most important factor to consider is whether the 

newly proffered material would alter the result reached earlier. Houston Lighting & 

Power Co. (South Texas Project, Units 1 & 2), LBP-86-15, 23 NRC 595, 672 (1986). 

To justify the granting of a motion to reopen, the moving papers must be strong 

enough, in light of any opposing filings, to avoid summary disposition. South Carolina 

Electric & Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), LBP-82-84, 

16 NRC 1183, 1186 (1982), citing Vermont Yankee Power Corp. (Vermont Yankee 

Nuclear Power Station), ALAB-138, 6 AEC 520, 523 (1973). 

The fact that the NRC’s Office of Investigations is investigating allegations of 

falsification of records and harassment of quality assurance/quality control personnel is 

insufficient, by itself, to support a motion to reopen. Louisiana Power & Light Co.

(Waterford Steam Electric Station, Unit 3), CLI-86-1, 23 NRC 1, 5-6 (1986). 

Evidence of a continuing effort to improve reactor safety does not necessarily warrant 

reopening a record. Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, 

Units 1 & 2), ALAB-598, 11 NRC 876, 887 (1980). 

Intervenor’s argument that a possible violation of safety standards could occur does 

not demonstrate a significant safety issue. Binding case law provides that a party 

seeking to reopen the record does not show the existence of a significant safety issue 

merely by demonstrating that a plant component performs a safety function and thus is 

safety significant. AmerGen Energy Co., Inc. (Oyster Creek Nuclear Generating 

Station), CLI-08-28, 68 NRC 658, 670, 672 (2008) (referring to Public Service Co. of 

New Hampshire (Seabrook Station, Units 1 & 2), CLI-90-6, 31 NRC 483, 487 (1990)). 
JUNE 2011 POSTHEARING MATTERS 23 

Intervenors failed to raise a significant safety issue when they did not present sufficient 

evidence to show that an applicant’s program and continuing compliance with an NRC 

Staff-prescribed enhanced surveillance program would not provide the requisite 

assurance of plant safety. The intervenors’ request for harsher measures than the 

NRC Staff had considered necessary, without presenting any new information that the 

Staff had failed to consider, is insufficient to raise a significant safety issue. Public 

Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), CLI-90-6, 31 NRC 483, 

487-88 (1990). 

Differing analyses by experts of factual information already in the record do not 

normally constitute the type of information for which reopening of the record would be 

warranted. Houston Lighting & Power Co. (South Texas Project, Units 1 & 2), 

LBP-85-42, 22 NRC 795, 799 (1985), citing Pacific Gas & Electric Co. (Diablo Canyon 

Nuclear Power Plant, Units 1 & 2), ALAB-644, 13 NRC 903, 994-95 (1981). 

Repetition of arguments previously presented does not present a basis for 

reconsideration. Nuclear Engineering Co. (Sheffield, Illinois Low-Level Radioactive 

Waste Disposal Site), CLI-80-1, 11 NRC 1, 5 (1980). Nor do generalized assertions to 

the effect that “more evidence is needed.” Public Service Electric & Gas Co. (Salem 

Nuclear Generating Station, Unit 1), ALAB-650, 14 NRC 43, 63 (1981). 

Newspaper allegations of quality assurance deficiencies, unaccompanied by evidence, 

ordinarily are not sufficient grounds for reopening an evidentiary record. Cleveland 

Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), LBP-84-3, 

19 NRC 282, 286 (1984). See Louisiana Power & Light Co. (Waterford Steam Electric 

Station, Unit 3), CLI-86-1, 23 NRC 1, 6 n.2 (1986); see also AmerGen Energy Co., Inc.

(Oyster Creek Nuclear Generating Station), CLI-08-28, 68 NRC 658, 672 (2008) 

(noting “evidentiary shortcomings” of newspaper articles as evidence of a significant 

safety issue). 

Generalized complaints that an alleged ex parte communication to a Board 

compromised and tainted the Board’s decisionmaking process are insufficient to 

support a motion to reopen. Philadelphia Electric Co. (Limerick Generating Station, 

Units 1 & 2), ALAB-840, 24 NRC 54, 61 (1986), vacated, CLI-86-18, 24 NRC 501 

(1986) (the Appeal Board lacked jurisdiction to rule on the motion to reopen). 

In the context of a motion to reopen a closed proceeding, the Commission found that a 

difference of opinion between an intervenor and the Staff over a scientific question – 

such as where the Staff accepted a licensee’s explanation of emission levels – does 

not constitute “fraud, deceit, and cover-up” by the Staff. Dominion Nuclear 

Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-06-4, 63 NRC 32, 

36-37 (2006). 

A movant should provide any available material to support a motion to reopen the 

record rather than rely on “bare allegations or simple submission of new contentions.” 

Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-753, 

18 NRC 1321, 1324 (1983), citing Pacific Gas & Electric Co. (Diablo Canyon Nuclear 

Power Plant, Units 1 & 2), CLI-81-5, 13 NRC 361, 363 (1981); Louisiana Power & Light 

Co. (Waterford Steam Electric Station, Unit 3), ALAB-803, 21 NRC 575, 577 (1985); 
POSTHEARING MATTERS 24 JUNE 2011 

Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-812, 

22 NRC 5, 14 (1985); Louisiana Power & Light Co. (Waterford Steam Electric Station, 

Unit 3), CLI-86-1, 23 NRC 1, 5 (1986). See Long Island Lighting Co. (Shoreham 

Nuclear Power Station, Unit 1), CLI-89-1, 29 NRC 89, 93-94 (1989) (a movant’s 

willingness to provide unspecified, additional information at some unknown date in the 

future is insufficient). Undocumented newspaper articles on subjects with no apparent 

connection to the facility in question do not provide a legitimate basis on which to 

reopen a record. Louisiana Power & Light Co. (Waterford Steam Electric Station, 

Unit 3), ALAB-753, 18 NRC 1321, 1330 (1983); Louisiana Power and Light Co.

(Waterford Steam Electric Station, Unit 3), ALAB-786, 20 NRC 1087, 1089-1090 

(1984). The proponent of a motion to reopen a hearing bears the responsibility for 

establishing that the standards for reopening are met. The movant is not entitled to 

engage in discovery in order to support a motion to reopen. Metropolitan Edison Co.

(Three Mile Island Nuclear Station, Unit 1), CLI-85-7, 21 NRC 1104, 1106 (1985). An 

adjudicatory board will review a motion to reopen on the basis of the available 

information. The board has no duty to search for evidence which will support a party’s 

motion to reopen. Thus, unless the movant has submitted information which raises a 

serious safety issue, a board may not seek to obtain information relevant to a motion to 

reopen pursuant to either its sua sponte authority or the Commission’s Policy 

Statement on Investigations, Inspections, and Adjudicatory Proceedings, 

49 Fed. Reg. 36,032 (Sep. 13, 1984). Louisiana Power & Light Co. (Waterford Steam 

Electric Station, Unit 3), CLI-86-1, 23 NRC 1, 6-7 (1986). 

A motion to reopen the record based on alleged deficiencies in an applicant’s 

construction quality assurance program must establish either that uncorrected 

construction errors endanger safe plant operation, or that there has been a breakdown 

of the quality assurance program sufficient to raise legitimate doubt as to whether the 

plant can be operated safely. Pacific Gas & Electric Co. (Diablo Canyon Nuclear 

Power Plant, Units 1 & 2), ALAB-756, 18 NRC 1340, 1344-1345 (1983), citing Union 

Electric Co. (Callaway Plant, Unit 1), ALAB-740, 18 NRC 343, 346 (1983); this 

standard also applies to an applicant’s design quality assurance program. Pacific Gas 

& Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-775, 

19 NRC 1361, 1366 (1984), aff’d sub. nom. San Luis Obispo Mothers for Peace v. 

NRC, 751 F.2d 1287 (D.C. Cir. 1984), aff’d on reh’g en banc, 789 F.2d 26 (1986). 

The untimely listing of “historical examples” of alleged construction quality assurance 

deficiencies is insufficient to warrant reopening of the record on the issue of 

management character and competence. Louisiana Power & Light Co. (Waterford 

Steam Electric Station, Unit 3), ALAB-812, 22 NRC 5, 15 (1985), citing Pacific Gas & 

Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-775, 

19 NRC 1361, 1369-70 (1984), aff’d sub. nom. San Luis Obispo Mothers for Peace v. 

NRC, 751 F.2d 1287 (D.C. Cir. 1984), aff’d on reh’g en banc, 789 F.2d 26 (1986). 

Long-range forecasts of future electric power demands are especially uncertain as they 

are affected by trends in usage, increasing rates, demographic changes, industrial 

growth or decline, and the general state of economy. These factors exist even beyond 

the uncertainty that inheres to demand forecasts: assumptions on continued use from 

historical data, range of years considered, the area considered, and extrapolations 

from usage in residential, commercial, and industrial sectors. The general rule 
JUNE 2011 POSTHEARING MATTERS 25 

applicable to cases involving differences or changes in demand forecasts is stated in 

Niagara Mohawk Power Corp. (Nine Mile Point Nuclear Station, Unit 2), ALAB-264, 

1 NRC 347, 352-69 (1975). Accordingly, a possible one-year slip in construction 

schedule was clearly within the margin of uncertainty, and intervenors had failed to 

present information of the type or substance likely to have an effect on the need-forpower issue such as to warrant relitigation. Carolina Power & Light Co. (Shearon 

Harris Nuclear Power Plant, Units 1–4), CLI-79-5, 9 NRC 607, 609-10 (1979). 

Speculation about the future effects of budget cuts or employment freezes does not 

present a significant safety issue which must be addressed. Public Service Co. of New 

Hampshire (Seabrook Station, Units 1 & 2), CLI-90-10, 32 NRC 218, 223 (1990). 

4.4.3 Reopening Construction Permit Hearings to Address New Generic Issues 

Construction permit hearings should not be reopened upon discovery of a generic 

safety concern where such generic concern can be properly addressed and considered 

at the operating license stage. Georgia Power Co. (Alvin W. Vogtle Nuclear Plant, 

Units 1 & 2), ALAB-291, 2 NRC 404 (1975). 

4.4.4 Discovery to Obtain Information to Support Reopening of Hearing Is Not 

Permitted 

The burden is on the movant to establish prior to reopening that the standards for 

reopening are met and “the movant is not entitled to engage in discovery in order to 

support a motion to reopen.” E.g., AmerGen Energy Co., Inc. (Oyster Creek Nuclear 

Generating Station), CLI-08-28, 68 NRC 658, 676 (2008). 

4.5 Motions to Reconsider

See also Digest Section 4.3.1 supra. 

Motions for reconsideration must be filed within ten (10) days of the date of issuance of 

the challenged order or action for which reconsideration is requested. 

10 C.F.R. §§ 2.323(e) and 2.345(a)(1) [former §§ 2.730 and 2.771(a)]. 

The Commission revised the Rules of Practice in 2004 with respect to motions for 

reconsideration by adopting a “compelling circumstances” standard for motions for 

reconsideration. See 69 Fed. Reg. 2,182, 2,207 (Jan. 14, 2004); 10 C.F.R. §§ 2.323(e) 

and 2.345(b) [former §§ 2.730 and 2.771]. This standard, which is a higher standard than 

prior 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. 

Licensing Boards have the inherent power to entertain and grant a motion to reconsider 

an initial decision. Consolidated Edison Co. (Indian Point Nuclear Generating Unit 3), 

ALAB-281, 2 NRC 6 (1975). 
POSTHEARING MATTERS 26 JUNE 2011 

A reconsideration request that is grossly out of time without good cause shown may be 

rejected. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), 

LBP-00-14, 51 NRC 301, 311 (2000). 

The Commission undertakes motions for reconsideration when a party demonstrates a 

compelling circumstance. Examples of such a compelling circumstance include the 

existence of a clear and material error in decision which could not have reasonably been 

anticipated that renders the decision invalid. This standard is applied strictly; motions for 

reconsideration are not granted lightly. Pacific Gas and Electric Co. (Diablo Canyon 

Power Plant Independent Spent Fuel Storage Installation), CLI-06-27, 64 NRC 399, 

400-01 (2006). 

When a Board has reached a determination of a motion in the course of an on-the-record 

hearing, it need not reconsider that determination in response to an untimely motion but it 

may, in its discretion, decide to reconsider on a showing that it has made an egregious 

error. Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Units 1 & 2), LBP-82-6, 

15 NRC 281, 283 (1982). 

When a petition for review is filed with the Commission at the same time as a motion for 

reconsideration is filed with the Board, the Commission will delay considering the petition 

for review until after the Board has ruled. Private Fuel Storage, L.L.C. (Independent 

Spent Fuel Storage Installation), CLI-01-1, 53 NRC 1, 3 (2001), citing International 

Uranium Corp. (White Mesa Uranium Mill), CLI-97-9, 46 NRC 23, 24-25 (1997). 

A petitioner lacks standing to seek reconsideration of a decision unless the petitioner was 

a party to the proceeding when the decision was issued. Texas Utilities Electric Co.

(Comanche Peak Steam Electric Station, Units 1 & 2), CLI-89-6, 29 NRC 348, 354 (1989). 

In certain instances, for example, where a party attempts to appeal an interlocutory ruling, 

a Licensing Board can properly treat the appeal as a motion to the Licensing Board itself 

to reconsider its ruling. Public Service Co. of Oklahoma (Black Fox Station, Units 1 & 2), 

ALAB-370, 5 NRC 131 (1977); Public Service Co. of New Hampshire (Seabrook Station, 

Units 1 & 2), LBP-82-106, 16 NRC 1649, 1653 (1982). 

A motion to reconsider a prior decision will be denied where the motion is not in reality an 

elaboration upon, or refinement of, arguments previously advanced, but instead is an 

entirely new thesis and where the proponent does not request that the result reached in 

the prior decision be changed. Tennessee Valley Authority (Hartsville Nuclear Plant, 

Units 1A, 2A, 1B & 2B), ALAB-418, 6 NRC 1, 2 (1977). 

“A properly supported reconsideration motion is one that does not rely upon (1) entirely 

new theses or arguments, except to the extent it attempts to address a presiding officer’s 

ruling that could not reasonably have been anticipated, or (2) previously presented 

arguments that have been rejected. Instead, the movant must identify errors or 

deficiencies in the presiding officer’s determination indicating the questioned ruling 

overlooked or misapprehended (1) some legal principle or decision that should have 

controlling effect; or (2) some critical factual information. Reconsideration also may be 

appropriately sought to have the presiding officer correct what appear to be inharmonious 

rulings in the same decision.” Private Fuel Storage, L.L.C. (Independent Spent Fuel 
JUNE 2011 POSTHEARING MATTERS 27 

Storage Installation), LBP-01-38, 54 NRC 490, 493 (2001) (citation omitted), citing

Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-98-17, 

48 NRC 69, 73-74 (1998). 

Reconsideration motions afford an opportunity to request correction of a Board error by 

refining an argument, or by pointing out a factual misapprehension or a controlling 

decision of law that was overlooked. New arguments are improper. Duke Cogema Stone 

& Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), CLI-02-2, 55 NRC 5, 7 

(2002); see also Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage 

Installation), CLI-00-21, 52 NRC 261, 264 (2000), citing Louisiana Energy Services, L.P., 

(Claiborne Enrichment Center), CLI-97-2, 45 NRC 3, 4 (1997). 

When an intervenor attempts, through a reconsideration motion, to broaden the scope of 

an issue the Board has already decided, the Board does not abuse its discretion by 

refusing to restart its hearing to reassess the issue in its broader form. Private Fuel 

Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-05-19, 62 NRC 403, 

414 (2005). 

A motion for reconsideration should not include new arguments or evidence unless a party 

demonstrates that its new material relates to a Board concern that could not reasonably 

have been anticipated. Ralph L. Tetrick (Denial of Reactor Operator’s License), 

LBP-97-6, 45 NRC 130, 131 (1997), citing Texas Utilities Elec. Co. (Comanche Peak 

Steam Electric Station, Units 1 & 2), LBP-84-10, 19 NRC 509, 517-18 (1984). 

Petitioners may be granted permission by the Commission to file a consolidated request 

for reconsideration if they have not had full opportunity to address the precise theory on 

which the Commission’s first decision rests. Northern States Power Co. (Monticello 

Nuclear Generating Plant; Prairie Island Nuclear Generating Plant, Units 1 & 2; Prairie 

Island Independent Spent Fuel Storage Installation), CLI-00-14, 52 NRC 37, 51 (2000). 

A motion to reconsider may not be used merely to re-argue matters already considered. 

Motions to reconsider must establish an error in the earlier decision and be based on the 

elaboration or refinement of arguments made initially, the identification of an overlooked 

controlling decision or a factual clarification. Dominion Nuclear Connecticut, Inc.

(Millstone Nuclear Power Station, Unit 2), CLI-03-18, 58 NRC 433, 434 (2003); Private 

Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-04-27, 

61 NRC 145, 153 (2004). However, if the basis for subsequent Commission modification 

of a Board ruling is not that there was a mistake of law or fact, but that the facts have 

changed, a party should not be characterized (or penalized) as having waived its 

argument by not filing a motion for reconsideration; that is not the type of situation where 

the Commission “reconsiders” its decision. Id. at 154. 

A party may not raise, in a petition for reconsideration, a matter which was not contested 

before the Licensing Board or on appeal. Tennessee Valley Authority (Hartsville Plant, 

Units 1A, 2A, 1B & 2B), ALAB-467, 7 NRC 459, 462 (1978). See Public Service Co. of 

New Hampshire (Seabrook Station, Units 1 & 2), CLI-89-3, 29 NRC 234, 241-42 (1989). 

In the same vein, a matter which was raised at the inception of a proceeding but was 

never pursued before the Licensing Board or on appeal cannot be raised on a motion for 
POSTHEARING MATTERS 28 JUNE 2011 

reconsideration. Kansas Gas & Electric Co. (Wolf Creek Generating Station, Unit 1), 

ALAB-477, 7 NRC 766, 768 (1978). 

Although some decisions hold that motions for reconsideration are generally disfavored 

when premised on new arguments or evidence rather than errors in the existing record, 

there also are cases that permit reconsideration based on new facts not available at the 

time of the decision in question and relevant to the particular issue under consideration 

which clarify information previously relied on and are potentially sufficient to change the 

result previously reached. See, e.g., Private Fuel Storage, L.L.C. (Independent Spent 

Fuel Storage Installation), LBP-98-17, 48 NRC 69 (1998); Georgia Power Co. (Vogtle 

Electric Generating Plant, Units 1 & 2), LBP-93-21, 38 NRC 143 (1993); see also Central 

Electric Power Cooperative, Inc. (Virgil C. Summer Nuclear Station, Unit 1), CLI-81-26, 

14 NRC 787, 790 (1981). Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power 

Station, Unit 3), LBP-01-17, 53 NRC 398, 403-04 (2001). 

Motions to reconsider an order should be associated with requests for reevaluation in light 

of elaboration on or refinement of arguments previously advanced; they are not the 

occasion for advancing an entirely new thesis. Central Electric Power Cooperative, Inc.

(Virgil C. Summer Nuclear Station, Unit 1), CLI-81-26, 14 NRC 787, 790 (1981); Private 

Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-98-17, 

48 NRC 69, 73-74 (1998); see also Louisiana Energy Services (Claiborne Enrichment 

Center), CLI-97-2, 45 NRC 3, 4 (1977). Private Fuel Storage, L.L.C., LBP-99-39, 

50 NRC 232, 237 (1999). 

Additionally, an argument raised for the first time in a motion to reconsider does not serve 

as a basis for reconsideration of admission of a contention. Sacramento Municipal Utility 

District (Rancho Seco Nuclear Generating Station), CLI-93-12, 37 NRC 355, 359-360 

(1993); Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), 

LBP-98-10, 47 NRC 288, 292 (1998). 

Motions for reconsideration are for the purpose of pointing out an error the Board has 

made. Unless the Board has relied on an unexpected ground, new factual evidence and 

new arguments are not relevant in such a motion. Texas Utilities Electric Co. (Comanche 

Peak Steam Electric Station, Units 1 & 2), LBP-84-10, 19 NRC 509, 517-18 (1984). In 

accordance to 10 C.F.R. § 2.326 (formerly § 2.734), motions for reconsideration will be 

denied for failure to show that the Presiding Officer has made a material error of law or 

fact. International Uranium (USA) Corp. (White Mesa Uranium Mill), LBP-97-14, 

46 NRC 55, 59 (1997), citing Cleveland Electric Illuminating Co. (Perry Nuclear Power 

Plant, Units 1 & 2), CLI-86-7, 23 NRC 233, 235 (1986), Louisiana Power & Light Co.

(Waterford Steam Electric Station, Unit 3), CLI-86-1, 23 NRC 1, 6 (1986). 

A motion for leave to reargue or rehear a motion will not be granted unless it appears that 

there is some decision or some principle of law that would have a controlling effect and 

that has been overlooked or that there has been a misapprehension of the facts. Georgia 

Power Co. (Vogtle Electric Generating Plant, Units 1 & 2), LBP-94-31, 40 NRC 137, 140 

and n.1 (1993). Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage 

Installation), LBP-98-17, 48 NRC 69, 73-74 (1998). 
JUNE 2011 POSTHEARING MATTERS 29 

Where a party petitioning the Court of Appeals for review of a decision of the agency also 

petitions the agency to reconsider its decision and the federal court stays its review 

pending the agency’s disposition of the motion to reconsider, the Hobbs Act does not 

preclude the agency’s reconsideration of the case. Public Service Co. of Indiana (Marble 

Hill Nuclear Generating Station, Units 1 & 2), ALAB-493, 8 NRC 253, 259 (1978). 

Repetition of arguments previously presented does not present a basis for 

reconsideration. Nuclear Engineering Co. (Sheffield, Illinois Low-Level Radioactive Waste 

Disposal Site), CLI-80-1, 11 NRC 1, 5-6 (1980). See Long Island Lighting Co. (Shoreham 

Nuclear Power Station, Unit 1), CLI-88-3, 28 NRC 1, 2 (1988). 

A Board cannot reconsider a matter after it loses jurisdiction. Florida Power & Light Co.

(St. Lucie Nuclear Power Plant, Unit 2), ALAB-579, 11 NRC 223, 225-226 (1980). 

4.6 Procedure on Remand

4.6.1 Jurisdiction of the Licensing Board on Remand 

The question as to whether a Licensing Board, on remand, assumes its original plenary 

authority or, instead, is limited to consideration of only those issues specified in the 

remand order was, for some time, unresolved. See Philadelphia Electric Co. (Peach 

Bottom Atomic Power Station, Units 2 & 3), ALAB-389, 5 NRC 727 (1977). Of course, 

jurisdiction may be regained by a remand order of either the Commission or a court, 

issued during the course of review of the decision. Issues to be considered by the 

Board on remand would be shaped by that order. If the remand related to only one or 

more specific issues, the finality doctrine would foreclose a broadening of scope to 

embrace other discrete matters. Virginia Electric & Power Co. (North Anna Nuclear 

Power Station, Units 1 & 2), ALAB-551, 9 NRC 704, 708 (1979). 

However, a Licensing Board was found to be “manifestly correct” in rejecting a petition 

requesting intervention in a remanded proceeding where the scope of the remanded 

proceeding had been limited by the Commission and the petition for intervention dealt 

with matters outside that scope. This establishes that a Licensing Board has limited 

jurisdiction in a remanded proceeding and may consider only what has been remanded 

to it. Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1–4), 

ALAB-526, 9 NRC 122, 124 n.3 (1979). See Philadelphia Electric Co. (Limerick 

Generating Station, Units 1 & 2), ALAB-857, 25 NRC 7, 11, 12 (1987) (the Licensing 

Board properly rejected an intervenor’s proposed license conditions which exceeded 

the scope of the narrow remanded issue of school bus driver availability). 

Although an adjudicatory board to which matters have been remanded would normally 

have the authority to enter any order appropriate to the outcome of the remand, the 

Commission may, of course, reserve certain powers to itself, such as, for example, 

reinstatement of a construction permit suspended pending the remand. Public Service 

Co. of New Hampshire (Seabrook Station, Units 1 & 2), CLI-78-14, 7 NRC 952, 961 

(1978). 

Where the Commission remands an issue to a Licensing Board, it is implicit that the 

Board is delegated the authority to prescribe warranted remedial action within the 
POSTHEARING MATTERS 30 JUNE 2011 

bounds of its general powers. However, it may not exceed these powers. Carolina 

Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1–4), ALAB-577, 

11 NRC 18, 29 (1980), modified, CLI-80-12, 11 NRC 514 (1980). 

4.6.2 Jurisdiction of the Board on Remand 

Jurisdiction over previously determined issues is not necessarily preserved by the 

pendency of other issues in a proceeding. Metropolitan Edison Co. (Three Mile Island, 

Unit 1), ALAB-766, 19 NRC 981, 983 (1984), citing Virginia Electric & Power Co. (North 

Anna Nuclear Power Station, Units 1 & 2), ALAB-551, 9 NRC 704, 708-09 (1979); 

Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-513, 

8 NRC 694, 695-96 (1978). 

4.6.3 Stays Pending Remand to Licensing Board 

10 C.F.R. § 2.342 (formerly § 2.788) does not expressly deal with the matter of a stay 

pending remand of a proceeding to the Licensing Board. Prior to the promulgation of 

Section 2.342 (formerly Section 2.788), the Commission held that the standards for 

issuance of a stay pending remand are less stringent than those of the Virginia 

Petroleum Jobbers test, relied on by federal courts. Public Service Co. of New 

Hampshire (Seabrook Station, Units 1 & 2), CLI-77-8, 5 NRC 503 (1977). In this vein, 

the Commission ruled that the propriety of issuing a stay pending remand was to be 

determined on the basis of a traditional balancing of equities and on consideration of 

possible prejudice to further actions resulting from the remand proceedings. 

Where judicial review discloses inadequacies in an agency’s environmental impact 

statement prepared in good faith, a stay of the underlying activity pending remand does 

not follow automatically. Whether the project need be stayed essentially must be 

decided on the basis of (1) traditional balancing of equities, and (2) consideration of 

any likely prejudice to further decisions that might be called for by the remand. 

Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-395, 5 NRC 772, 784-85 

(1977). The seriousness of the remanded issue is a third factor which a Board will 

consider before ruling on a party’s motion for a stay pending remand. Long Island 

Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-84-53, 20 NRC 1531, 

1543 (1984), citing Public Service Co. of New Hampshire (Seabrook Station, 

Units 1 & 2), CLI-77-8, 5 NRC 503, 521 (1977). 

4.6.4 Participation of Parties in Remand Proceedings 

Where an issue is remanded to the Licensing Board and a party did not previously 

participate in consideration of that issue, submitting no contentions, evidence or 

proposed findings on it and taking no exceptions to the Licensing Board’s disposition of 

it, the Licensing Board is fully justified in excluding that party from participation in the 

remanded hearing on that issue. Status as a party does not carry with it a license to 

step in and out of consideration of issues at will. Public Service Co. of Indiana (Marble 

Hill Nuclear Generating Station, Units 1 & 2), ALAB-493, 8 NRC 253, 268-69 (1978). 
TABLE OF CONTENTS 

APPEALS

JUNE 2011 APPEALS-TABLE OF CONTENTS i 

5.0 APPEALS ................................................................................... App 1 

5.1 Commission Review ................................................................. App 1 

5.1.1 Commission Review Pursuant to 2.341(b) 

 (formerly 2.786(b)) ................................................................... App 1 

5.1.2 Sua Sponte Review .................................................................... App 2 

5.1.3 Effect of Commission’s Denial of Petition for Review ................. App 3 

5.1.4 Commission Review Pursuant to 2.311 (formerly 2.714a) .......... App 4 

5.1.5 Effect of Affirmance as Precedent .............................................. App 6 

5.1.6 Precedential Effect of Unpublished Opinions ............................. App 6 

5.1.7 Precedential Weight Accorded Previous 

 Appeal Board Decisions ........................................................... App 6 

5.2 Who Can Appeal ....................................................................... App 6 

5.2.1 Participating by Filing an Amicus Curiae Brief ............................ App 8 

5.2.2 Aggrieved Parties Can Appeal .................................................... App 10 

5.2.3 Parties’ Opportunity to Be Heard on Appeal ............................... App 11 

5.3 How to Petition for Review ....................................................... App 11 

5.4 Time for Seeking Review .......................................................... App 12 

5.4.1 Variation in Time Limits on Appeals ............................................ App 15 

5.5 Scope of Commission Review ................................................. App 16 

5.5.1 Issues Raised for the First Time on Appeal or in a 

 Petition for Review ................................................................... App 17 

5.5.2 Effect on Appeal of Failure to File Proposed Findings ................ App 19 

5.5.3 Matters Considered on Appeal of Ruling Allowing 

 Late Intervention ...................................................................... App 20 

5.5.4 Consolidation of Appeals on Generic Issues .............................. App 20 

5.6 Standards for Reversing Licensing Board on Findings of

 Fact and Other Matters ......................................................... App 20 

5.6.1 Standards for Reversal of Rulings on Intervention ..................... App 25 

5.7 Stays .......................................................................................... App 26 

5.7.1 Requirements for a Stay Pending Review .................................. App 28 

5.7.1.1 Stays of Initial Decisions ............................................................ App 28 

5.7.1.2 Stays of Board Proceedings, Interlocutory Rulings and 

 Staff Action ............................................................................... App 29 

5.7.1.3 10 C.F.R. § 2.342 (formerly § 2.788) and Virginia Petroleum 

 Jobbers Criteria ........................................................................ App 32 

5.7.1.3.1 Irreparable Injury ......................................................................... App 34 

5.7.1.3.2 Possibility of Success on Merits .................................................. App 37 

5.7.1.3.3 Harm to Other Parties and Where the Public Interest Lies ......... App 38 

5.7.2 Stays Pending Remand to Licensing Board ............................... App 39 

5.7.3 Stays Pending Judicial Review ................................................... App 39 

5.7.4 Stays Pending Remand After Judicial Review ............................ App 39 
APPEALS-TABLE OF CONTENTS ii JUNE 2011 

5.7.5 Immediate Effectiveness Review of Operating 

 License Decisions .................................................................... App 40 

5.7.6 Stay/Suspension of Ongoing Adjudicatory Proceedings ............. App 41 

5.8 Review as to Specific Matters .................................................. App 41 

5.8.1 Scheduling Orders ...................................................................... App 41 

5.8.2 Discovery Rulings ....................................................................... App 42 

5.8.2.1 Rulings on Discovery Against Non-Parties ................................. App 42 

5.8.2.2 Rulings Curtailing Discovery ....................................................... App 43 

5.8.3 Refusal to Compel Joinder of Parties ......................................... App 43 

5.8.3.1 Order Consolidating Parties ........................................................ App 43 

5.8.4 Order Denying Summary Disposition .......................................... App 43 

 (Also see Section 3.5) 

5.8.5 Procedural Irregularities .............................................................. App 43 

5.8.6 Matters of Recurring Importance ................................................ App 44 

5.8.7 Advisory Decisions on Trial Rulings ............................................ App 44 

5.8.8 Order on Pre-LWA Activities ....................................................... App 44 

5.8.9 Partial Initial Decisions ................................................................ App 44 

5.8.10 Other Licensing Actions .............................................................. App 45 

5.8.11 Evidentiary Rulings ..................................................................... App 45 

5.8.12 Authorization of Construction Permit .......................................... App 46 

5.8.13 Certification of Gaseous Diffusion Plants .................................... App 46 

5.9 Perfecting Appeals ................................................................... App 47 

5.9.1 General Requirements for Petition for Review 

 of an Initial Decision ................................................................. App 47 

5.10 Briefs on Appeal ....................................................................... App 47 

5.10.1 Importance of Brief ...................................................................... App 47 

5.10.2 Time for Submittal of Brief .......................................................... App 48 

5.10.2.1 Time Extensions for Brief ............................................................ App 49 

5.10.2.2 Supplementary or Reply Briefs ................................................... App 49 

5.10.3 Contents of Brief ......................................................................... App 50 

5.10.3.1 Opposing Briefs .......................................................................... App 54 

5.10.3.2 Amicus Curiae Briefs .................................................................. App 54 

5.11 Oral Argument ........................................................................... App 54 

5.11.1 Failure to Appear for Oral Argument ........................................... App 55 

5.11.2 Grounds for Postponement of Oral Argument ............................ App 55 

5.11.3 Oral Argument by Non-Parties .................................................... App 55 

5.12 Interlocutory Review ................................................................. App 55 

5.12.1 Interlocutory Review Disfavored ................................................. App 55 

5.12.2 Criteria for Interlocutory Review .................................................. App 58 

5.12.2.1 Irreparable Harm ......................................................................... App 62 

5.12.2.2 Pervasive and Unusual Effect on the Proceeding ....................... App 64 

5.12.3 Responses Opposing Interlocutory Review ................................ App 67 

5.12.4 Certification of Questions for Interlocutory Review 

 and Referred Rulings .............................................................. App 67 
JUNE 2011 APPEALS-TABLE OF CONTENTS iii 

5.12.4.1 Effect of Subsequent Developments on Motion to Certify .......... App 69 

5.12.4.2 Effect of Directed Certification on Uncertified Issues .................. App 70 

5.12.4.3 Certification of Questions Relating to Restricted Data or 

 National Security Information ................................................... App 70 

5.13 Disqualification of a Commissioner ........................................ App 70 

5.14 Reconsideration by the Commission ...................................... App 71 

 (Also see Section 4.5) 

5.15 Jurisdiction of the NRC to Consider Matters While

 Judicial Review Is Pending ...................................................... App 73 

5.16 Procedure on Remand .............................................................. App 74 

 (Also see Section 4.6) 

5.17 Mootness and Vacatur .............................................................. App 74 
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JUNE 2011 APPEALS 1 

5.0 APPEALS 

From 1969 to 1991 the Commission used a three-tiered adjudicatory process. As is the case 

now, controversies were resolved initially by an Atomic Safety and Licensing Board or 

presiding officer acting as a trial level tribunal. However, Licensing Board initial decisions 

(final decisions on the merits) and decisions wholly granting or denying intervention were 

subject to non-discretionary appellate review by the Atomic Safety and Licensing Appeal 

Board. Appeal Board decisions were subject to review by the Commission as a matter of 

discretion. 

The Appeal Board was abolished in 1991, thereby creating a two-tiered adjudicatory system 

under which the Commission itself conducts all appellate review. Most Commission review 

of rulings by Licensing Boards and Presiding Officers, including initial decisions, is now 

discretionary. See 10 C.F.R. § 2.341 (a)–(f) (formerly § 2.786 (a)–(f)). A party must petition 

for review and the Commission, as a matter of discretion, determines if review is warranted. 

Appeals of orders wholly denying or granting intervention remain non-discretionary. See

10 C.F.R. § 2.311 (formerly § 2.714a). 

The standards for granting interlocutory review have remained essentially the same. Appeal 

Board and Commission case law had permitted interlocutory review in extraordinary 

circumstances. These case law standards were codified in 1991 when the Appeal Board 

was abolished and the two-tiered process was developed. See 10 C.F.R. § 2.341(f) 

(formerly § 2.786(g)). 

Although the Appeal Board was abolished in 1991, Appeal Board precedent, to the extent it 

is consistent with more recent case law and rule changes, may still be authoritative. 

5.1 Commission Review

As a general matter, the Commission conducts review in response to a petition for review 

filed pursuant to 10 C.F.R. 2.341 (formerly 2.786), in response to an appeal filed pursuant 

to Section 2.311 (formerly 2.714a), or on its own motion (sua sponte). 

The Commission has full discretion whether to undertake appellate review of its Licensing 

Boards’ merits decisions. NRC rules say that the Commission may grant review of initial 

Board decisions (or partial initial decisions) based on “any consideration” it “deems to be 

in the public interest.” Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage 

Installation), CLI-04-10, 61 NRC 131, 132 (2004) (quoting former 10 C.F.R. § 2.786(b)(4) 

[now 10 C.F.R. § 2.341(b)]); Entergy Nuclear Operations, Inc. (Indian Point Nuclear 

Generating Units 2 & 3), CLI-08-7, 67 NRC 187 (2008). 

5.1.1 Commission Review Pursuant to 2.341(b) (formerly 2.786(b)) 

 In determining whether to grant, as a matter of discretion, a petition for review of a 

Licensing Board order, the Commission gives due weight to the existence of a 

substantial question with respect to the considerations set forth in 10 C.F.R. § 2.341(b) 

(formerly § 2.786(b)(4)). The considerations set out in Section 2.341(b) (formerly 

§ 2.786(b)(4)) are: (i) a clearly erroneous finding of material fact; (ii) a necessary legal 

conclusion that is without governing precedent or departs from prior law; (iii) a 

substantial and important question of law, policy, or discretion; (iv) a prejudicial 

procedural error; and (v) any other consideration deemed to be in the public interest. 
APPEALS 2 JUNE 2011 

Kenneth G. Pierce (Shorewood, Illinois), CLI-95-6, 41 NRC 381, 382 (1995); Advanced 

Medical Systems (One Factory Row, Geneva, Ohio 44041), CLI-93-8, 37 NRC 181, 

184 (1993); Piping Specialists, Inc., et al., (Kansas City, MO), CLI-92-16, 36 NRC 351 

(1992); Aharon Ben-Haim, Ph.D., CLI-99-14, 49 NRC 361, 363 (1999). See also

Northeast Nuclear Energy Co. (Millstone Nuclear Power Station, Unit 3), CLI-01-3, 

53 NRC 22, 28 (2001); Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage 

Installation), CLI-03-5, 57 NRC 279, 282-283 (2003), declining review of LBP-03-04, 

57 NRC 69 (2003); Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage 

Installation), CLI-03-8, 58 NRC 11, 17 (2003); Duke Energy Corp. (McGuire Nuclear 

Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-03-17, 58 NRC 419, 

422 (2003); Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), 

CLI-04-4, 59 NRC 31, 35-36 (2004); Private Fuel Storage, L.L.C. (Independent Spent 

Fuel Storage Installation), CLI-05-16, 62 NRC 1, 3 (2005); Private Fuel Storage, L.L.C.

(Independent Spent Fuel Storage Installation), CLI-05-19, 62 NRC 403, 410 (2005); 

Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-04-10, 

61 NRC 131, 132 (2004). 

The Commission may dismiss its grant of review even though the parties have briefed 

the issues. Tennessee Valley Authority (Browns Ferry Nuclear Plant, Units 1, 2, & 3), 

CLI-82-26, 16 NRC 880, 881 (1982), citing Jones v. State Board of Education, 

397 U.S. 31 (1970). 10 C.F.R. § 2.341 (formerly § 2.786) describes when the 

Commission “may” grant a petition for review but does not mandate any circumstances 

under which the Commission must take review. Louisiana Energy Services (Claiborne 

Enrichment Center), CLI-97-12, 46 NRC 52, 53 (1997). 

The Commission agreed to take review of a Board’s merits ruling where it stated that 

the ruling arguably reflected a mistake of fact or law that may have derived from 

ambiguities in a prior Commission opinion. Private Fuel Storage, L.L.C. (Independent 

Spent Fuel Storage Installation), CLI-04-10, 61 NRC 131, 137 (2004). 

Unsuccessful petitioners may appeal the denial of their intervention petitions, but they 

must make some argument that the appeal is justified. An appeal that does not point 

to an error of law or abuse of discretion by the Board but simply restates the contention 

with additional support will not meet the requirements for a valid appeal. Shieldalloy 

Metallurgical Corp., (Amendment Request for Decommissioning of the Newfield, New 

Jersey Facility), CLI-07-20, 65 NRC 499, 503-05 (2007). 

5.1.2 Sua Sponte Review 

Sua sponte review, although rarely exercised, is taken in extraordinary circumstances. 

See, e.g., Ohio Edison Co., et al. (Perry & Davis-Besse), CLI-91-15, 34 NRC 269 

(1991). The Commission has occasionally taken review of an issue sua sponte where 

the issue is not otherwise before the Commission on appeal or where the standard for 

interlocutory review is not met. Sua sponte review allows the Commission to address 

unappealed issues or orders, to: (1) establish case-specific timetables or procedures, 

(2) suspend a proceeding, (3) vacate an unreviewed Board order after withdrawal of 

the challenged application, (4) disqualify a presiding officer, (5) address an issue of 

broad implication, and/or (6) provide guidance to a Licensing Board. Entergy Nuclear 

Generation Co. and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power 

Station), CLI-07-1, 65 NRC 1, 4-5 & n.11-19 (2007) (citing cases in which the 
JUNE 2011 APPEALS 3 

Commission took sua sponte review for one of the six stated reasons and taking sua 

sponte review in the instant proceeding for the latter two reasons). 

Because the Commission is responsible for all actions and policies of the NRC, the 

Commission has the inherent authority to act upon or review sua sponte any matter 

before an NRC tribunal. To impose on the Commission, to the degree imposed on the 

judiciary, requirements of ripeness and exhaustion would be inappropriate since the 

Commission, as part of a regulatory agency, has a special responsibility to avoid 

unnecessary delay or excessive inquiry. Public Service Co. of New Hampshire

(Seabrook Station, Units 1 & 2), CLI-77-8, 5 NRC 503, 516 (1977); North Atlantic 

Energy Service Corp. (Seabrook Station, Unit 1), CLI-98-18, 48 NRC 129 (1998). See 

Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), CLI-90-3, 

31 NRC 219, 228-29 (1990). See also Duke Energy Corp. (Catawba Nuclear Station, 

Units 1 & 2), CLI-05-14, 61 NRC 359, 362 (2005) (undertaking sua sponte review of an 

issue that the Commission conceded may well have been moot). 

In determining whether to take review of a Licensing Board order approving a 

settlement agreement, the Commission may ask the Staff to provide an explanation for 

its agreement in the settlement if such reasons are not readily apparent from the 

settlement agreement or the record of the proceeding. Randall C. Orem, D.O.

(Byproduct Material License No. 34-26201-01), CLI-92-15, 36 NRC 251 (1992). 

If sua sponte review uncovers problems in a Licensing Board’s decision or a record 

that may require corrective action adverse to a party’s interest, the consistent practice 

is to give the party ample opportunity to address the matter as appropriate. Offshore 

Power Systems (Manufacturing License for Floating Nuclear Power Plants), ALAB-689, 

16 NRC 887, 891 n.8 (1982) (citing Sacramento Municipal Utility District (Rancho Seco 

Nuclear Generating Station), ALAB-655, 14 NRC 799, 803 (1981); Northern States 

Power Co. (Monticello Nuclear Generating Plant, Unit 1), ALAB-611, 12 NRC 301, 

309-313 (1980)). 

The Commission may exercise its inherent supervisory authority over adjudications sua

sponte to address issues that are “significant, have potentially broad impact, and may 

well recur in the likely license renewal proceedings for other plants.” Northern States 

Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), CLI-10-27, 

72 NRC __ (Sep. 30, 2010) (slip op. at 8-9) (internal quotations omitted). 

5.1.3 Effect of Commission’s Denial of Petition for Review 

When a discrete issue has been decided by the Board and the Commission declines to 

review that decision, agency action is final with respect to that issue and Board 

jurisdiction is terminated. Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power 

Plant, Units 1 & 2), ALAB-782, 20 NRC 838, 841 (1984), citing Metropolitan Edison Co. 

(Three Mile Island Nuclear Station, Unit 1), ALAB-766, 19 NRC 981, 983 (1984); 

Virginia Electric & Power Co. (North Anna Nuclear Power Station, Units 1 & 2), 

ALAB-551, 9 NRC 704, 708-09 (1979); Public Service Co. of New Hampshire

(Seabrook Station, Units 1 & 2), ALAB-513, 8 NRC 694, 695 (1978). 

The Commission’s refusal to entertain a discretionary interlocutory review does not 

indicate its view on the merits. Nor does it preclude a Board from reconsidering the 

matter as to which Commission review was sought where that matter is still pending 
APPEALS 4 JUNE 2011 

before the Board. Public Service Co. of Indiana (Marble Hill Nuclear Generating 

Station, Units 1 & 2), ALAB-493, 8 NRC 253, 260 (1978). The Commission’s denial of 

review of a particular decision simply indicates that the appealing party “identified no 

‘clearly erroneous’ factual finding or important legal error requiring Commission 

correction.” Hydro Res., Inc., LBP-06-1, 63 NRC 41, 59 n.15 (2006), aff’d, CLI-06-14, 

63 NRC 510 (2006) (citing Hydro Res., Inc. (P.O. Box 15910, Rio Rancho, NM 87174), 

CLI-00-12, 52 NRC 1, 3 (2000) (quoting 10 C.F.R. § 2.786(b)(4), now § 2.341(b)(4))). 

Commission silence on issues raised on appeal “should be interpreted as neither 

approval nor disapproval of any individual unreviewed ruling.” U.S. Dep’t of Energy

(High-Level Waste Repository), CLI-09-14, 69 NRC 580, 583 (2009). 

When the time within which the Commission might have elected to review a Board 

decision expires, any residual jurisdiction retained by the Board expires. 

10 C.F.R. § 2.318(a) (formerly § 2.717(a)); Washington Public Power Supply System

(WPPSS Nuclear Project Nos. 3 and 5), ALAB-501, 8 NRC 381, 382 (1978). 

5.1.4 Commission Review Pursuant to 2.311 (formerly 2.714a) 

NRC regulations contain a special provision (10 C.F.R. § 2.311 (formerly § 2.714a)) 

allowing an interlocutory appeal from a Licensing Board order on a petition for leave to 

intervene. Under 10 C.F.R. § 2.311(b) (formerly § 2.714a(b)), a petitioner may appeal 

such an order but only if the effect thereof is to deny the petition in its entirety – i.e., to 

refuse petitioner entry into the case. Entergy Nuclear Generation Co. and Entergy 

Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-07-2, 65 NRC 10, 11 

(2007); Power Authority of the State of New York (Greene County Nuclear Plant), 

ALAB-434, 6 NRC 471 (1977); Gulf States Utilities Co. (River Bend Station, 

Units 1 & 2), ALAB-329, 3 NRC 607 (1976); Duke Power Co. (Perkins Nuclear Station, 

Units 1, 2, & 3), ALAB-302, 2 NRC 856 (1975); Puerto Rico Water Resources Authority

(North Coast Nuclear Plant, Unit 1), ALAB-286, 2 NRC 213 (1975); Portland General 

Electric Co. (Pebble Springs Nuclear Plant, Units 1 & 2), ALAB-273, 1 NRC 492, 494 

(1975); Boston Edison Co. (Pilgrim Nuclear Generating station, Unit 2), ALAB-269, 

1 NRC 411 (1975); Philadelphia Electric Co. (Fulton Generating Station, Units 1 & 2), 

ALAB-206, 7 AEC 841 (1974). Appellate review of a ruling rejecting some but not all of 

a petitioner’s contentions is available only at the end of the case. Entergy Nuclear 

Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), 

CLI-07-2, 65 NRC 10, 11 (2007); Northern States Power Co. (Tyrone Energy Park, 

Unit 1), ALAB-492, 8 NRC 251, 252 (1978). Similarly, where a proceeding is divided 

into two segments for convenience purposes and a petitioner is barred from 

participation in one segment but not the other, that is not such a denial of participation 

as will allow an interlocutory appeal under 10 C.F.R. § 2.311 (formerly § 2.714a). Gulf 

States Utility Co. (River Bend Station, Units 1 & 2), ALAB-329, 3 NRC 607 (1976). 

An order admitting and denying various contentions is not immediately appealable 

under 10 C.F.R. § 2.311 (formerly § 2.714a) where it neither wholly denies nor grants a 

petition for leave to intervene/request for a hearing. Exelon Generation Co., LLC (Early 

Site Permit for the Clinton ESP Site), CLI-04-31, 60 NRC 461, 468 (2004). For a 

license applicant to take an appeal under Section § 2.311(c) (formerly § 2.714a(c)), the 

applicant must contend that, after considering all pending contentions, the Board 

erroneously granted a hearing to the petitioner. Therefore, a license applicant’s appeal 

of a Board order granting a hearing request is premature when filed prior to the Board 
JUNE 2011 APPEALS 5 

ruling on all pending contentions. Duke Energy Corp. (Catawba Nuclear Station, 

Units 1 & 2), CLI-04-11, 59 NRC 203, 207-8 (2004). 

An appeal under 10 C.F.R. § 2.311(c) of a Licensing Board decision granting a petition 

to intervene and/or request for hearing can only be granted if the request and/or 

petition should have been wholly denied. Answering this question requires a 

determination of whether the petitioner has standing and has submitted at least one 

admissible contention. Yankee Atomic Electric Co. (Yankee Nuclear Power Station), 

CLI-05-15, 61 NRC 365, 371 (2005). 

A state participating as an “interested State” under 10 C.F.R. § 2.315 (formerly 

§ 2.715(c)) may appeal an order barring such participation, but it may not seek review 

of an order which permits the state to participate but excludes an issue which it seeks 

to raise. Gulf States Utility Co. (River Bend Station, Units 1 & 2), ALAB-329, 

3 NRC 607, 610 (1976). 

Unlike a private litigant who must file at least one acceptable contention in order to be 

admitted as a party to a proceeding, an interested state may participate in a 

proceeding regardless of whether or not it submits any acceptable contentions. Thus, 

an interested state may not seek interlocutory review of a Licensing Board rejection of 

any or all of its contentions because such rejection will not prevent an interested state 

from participating in the proceeding. Public Service Co. of New Hampshire (Seabrook 

Station, Units 1 & 2), ALAB-838, 23 NRC 585, 589-90 (1986). 

Only the petitioner may appeal from an order denying it leave to intervene. USERDA

(Clinch River Breeder Reactor Plant), ALAB-345, 4 NRC 212 (1976). The appellant 

must file a notice of appeal and supporting brief within 10 days after service of the 

Licensing Board’s order. 10 C.F.R. § 2.311(a) (formerly § 2.714a); Public Service Co. 

of New Hampshire (Seabrook Station, Unit 1), CLI-91-14, 34 NRC 261, 265 (1991). 

Other parties may file briefs in support of or in opposition to the appeal within ten 

(10) days of service of the appeal. The applicant, the NRC Staff or any other party 

may appeal an order granting a petition to intervene or request for a hearing in whole 

or in part, but only on the grounds that the petition or request should have been denied 

in whole. 10 C.F.R. § 2.311(a) (formerly § 2.714(c)); Public Service Co. of New 

Hampshire (Seabrook Station, Units 1 & 2), ALAB-896, 28 NRC 27, 30 (1988). 

A Licensing Board’s failure, after a reasonable length of time, to rule on a petition to 

intervene is tantamount to a denial of the petition. Where the failure of the Licensing 

Board to act is both unjustified and prejudicial, the petitioner may seek interlocutory 

review of the Licensing Board’s delay under 10 C.F.R. § 2.311 (formerly § 2.714a). 

Detroit Edison Co. (Greenwood Energy Center, Units 2 & 3), ALAB-376, 5 NRC 426, 

428 (1977). 

Where the Presiding Officer has reviewed an extensive record in detail, with the 

assistance of a technical advisor, the Commission is generally disinclined to upset his 

findings and conclusions, particularly on matters involving fact-specific issues or where 

the affidavits or submissions of experts must be weighed. Hydro Resources, Inc. 

(P.O. Box 15910, Rio Rancho, New Mexico 87174), CLI-01-4, 53 NRC 31, 45, 46 

(2001); Hydro Resources, Inc. (P.O. Box 777, Crownpoint, New Mexico 87313), 

CLI-06-1, 63 NRC 1, 2 (2006). 
APPEALS 6 JUNE 2011 

Once the time prescribed in Section 2.311 (formerly 2.714a) for perfecting an appeal 

has expired, the order below becomes final. Arizona Public Service Co. (Palo Verde 

Nuclear Generating Station, Units 1, 2, & 3), ALAB-713, 17 NRC 83, 84 n.1 (1983). 

5.1.5 Effect of Affirmance as Precedent 

Affirmance of the Licensing Board’s decision cannot be read as necessarily signifying 

approval of everything said by the Licensing Board. The inference cannot be drawn 

that there is agreement with all the reasoning by which the Licensing Board justified its 

decision or with the Licensing Board’s discussion of matters which do not have a direct 

bearing on the outcome. Portland General Electric Co. (Trojan Nuclear Plant), 

ALAB-181, 7 AEC 207, 208 n.4 (1974); Consumers Power Co. (Big Rock Point Plant), 

ALAB-795, 21 NRC 1, 2-3 (1985). 

Stare decisis effect is not given to Licensing Board conclusions on legal issues not 

reviewed on appeal. Arizona Public Service Co. (Palo Verde Nuclear Generating 

Station, Units 1, 2, & 3), ALAB-713, 17 NRC 83, 85 (1983), citing Duke Power Co.

(Cherokee Nuclear Station, Units 1, 2, & 3), ALAB-482, 7 NRC 979, 981 n.4 (1978); 

General Electric Co. (Vallecitos Nuclear Center – General Electric Test Reactor, 

Operating License No. TR-1), ALAB-720, 17 NRC 397, 402 n.7 (1983); Consumers 

Power Co. (Big Rock Point Plant), ALAB-795, 21 NRC 1, 2 (1985); Metropolitan Edison 

Co. (Three Mile Island Nuclear Station, Unit No. 1), ALAB-826, 22 NRC 893, 894 n.6 

(1985). See Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Unit 1), 

ALAB-893, 27 NRC 627, 629 n.5 (1988); Baltimore Gas and Electric Co. (Calvert Cliffs 

Nuclear Power Plant, Units 1 & 2), CLI-98-25, 48 NRC 325, 343 n.3 (1998); Aharon 

Ben-Haim, Ph.D., CLI-99-14, 49 NRC 361, 363 (1999). 

Unreviewed Board rulings do not constitute binding precedent. Duke Cogema Stone & 

Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), LBP-03-14, 

58 NRC 104, 110 (2003). 

5.1.6 Precedential Effect of Unpublished Opinions 

Unless published in the official NRC reports, decisions and orders of Appeal Boards 

are usually not to be given precedential effect in other proceedings. Pacific Gas and 

Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-592, 

11 NRC 744, 745 (1980). 

5.1.7 Precedential Weight Accorded Previous Appeal Board Decisions 

The Commission abolished the Atomic Safety and Licensing Appeal Board Panel in 

1991, but its decisions still carry precedential weight. Entergy Nuclear Operations, Inc. 

and Entergy Nuclear Fitzpatrick, LLC (James L. FitzPatrick Nuclear Power Plant) et al., 

CLI-08-19, 68 NRC 251, 260 n.23 (2008); Sequoyah Fuels Corp. and General Atomics

(Gore, OK, site), CLI-94-11, 40 NRC 55, 59 n.2 (1994). 

5.2 Who Can Appeal

The right to appeal or petition for review is confined to participants in the proceeding 

before the Licensing Board. Duke Power Co. (Perkins Nuclear Station, Units 1, 2, & 3), 

ALAB-433, 6 NRC 469 (1977); Consolidated Edison Co. (Indian Point Nuclear Generating 
JUNE 2011 APPEALS 7 

Unit 2), ALAB-369, 5 NRC 129 (1977); Kansas Gas & Electric Co. (Wolf Creek Nuclear 

Generating Station, Unit 1), ALAB-311, 3 NRC 85, 88 (1976); Cleveland Electric 

Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), ALAB-294, 2 NRC 663, 664 

(1975); Public Service Electric & Gas Co. (Hope Creek Generating Station, Units 1 & 2), 

ALAB-251, 8 AEC 993, 994 (1974); Tennessee Valley Authority (Bellefonte Nuclear Plant, 

Units 1 & 2), ALAB-237, 8 AEC 654 (1974); Philadelphia Electric Co. (Limerick Generating 

Station, Units 1 & 2), ALAB-845, 24 NRC 220, 252 (1986). Thus, with the single 

exception of a state which is participating under the “interested State” provisions of 

10 C.F.R. § 2.315(c) (formerly § 2.715(c)), a non-party to a proceeding may not petition 

for review or appeal from a Licensing Board’s decision. Metropolitan Edison Co. (Three 

Mile Island Nuclear Generating Station, Unit 2), ALAB-454, 7 NRC 39 (1978). 

Because movant’s motion for stay involved a challenge to the transfer to regulatory 

authority to a state, an action outside of the Commission’s adjudicatory process, 

Section 2.342 does not apply. However, the Commission, in its discretion, may entertain 

requests for stays of final agency action in anticipation of judicial review in other 

proceedings. Shieldalloy Metallurgical Corp. (License Amendment Request for 

Decommissioning of the Newfield, New Jersey Site), CLI-10-08, 71 NRC __ (Jan. 7, 2010) 

(slip op. at 6-7). 

Although an interested state is not a party to a proceeding in the traditional sense, the 

“participational opportunity” afforded to an interested state under 10 C.F.R. § 2.315(c) 

(formerly § 2.715(c)) includes the ability for an interested state to seek review of an initial 

decision. USERDA (Clinch River Breeder Reactor), ALAB-354, 4 NRC 383, 392 (1976); 

Gulf States Utilities Co. (River Bend Station, Units 1 & 2), ALAB-317, 3 NRC 175, 177-180 

(1976). 

The selection of parties to a Commission review proceeding is clearly a matter of 

Commission discretion (10 C.F.R. § 2.341(c) (formerly § 2.786(d)). A major factor in the 

Commission decision is whether a party has actively sought or opposed Commission 

review. This factor helps reveal which parties are interested in Commission review and 

whether their participation would aid that review. Therefore, a party desiring to be heard 

in a Commission review proceeding should participate in the process by which the 

Commission determines whether to conduct a review. An interested state which seeks 

Commission review is subject to all the requirements which must be observed by other 

parties. Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), CLI-77-25, 

6 NRC 535 (1977). 

In this vein, a person who makes a limited appearance before a Licensing Board is not a 

party and, therefore, may not appeal from the Board’s decision. Metropolitan Edison Co.

(Three Mile Island Nuclear Generating Station, Unit 2), ALAB-454, 7 NRC 39 (1978). 

As to petitions for review by specific parties, the following should be noted: 

(1) A party satisfied with the result reached on an issue is normally precluded from 

appealing with respect to that issue, but is free to challenge the reasoning used to 

reach the result in defending that result if another party appeals. Consumers 

Power Co. (Midland Plant, Units 1 & 2), ALAB-282, 2 NRC 9, 10 n.1 (1975). The 

prevailing party is free to urge any ground in defending the result, including 

grounds rejected by the Licensing Board. Niagara Mohawk Power Corp. (Nine 

Mile Point Nuclear Station, Unit 2), ALAB-264, 1 NRC 347, 357 (1975). See also 
APPEALS 8 JUNE 2011 

Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 & 2), 

ALAB-793, 20 NRC 1591, 1597 (1984); Long Island Lighting Co. (Shoreham 

Nuclear Power Station, Unit 1), ALAB-832, 23 NRC 135, 141 (1986), rev’d in part 

on other grounds, CLI-87-12, 26 NRC 383 (1987); Public Service Co. of 

Oklahoma (Black Fox Station, Units 1 & 2), ALAB-573, 10 NRC 775, 789 (1979); 

Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-691, 16 NRC 897, 

908 n.8 (1982), citing Black Fox, supra, ALAB-573,10 NRC at 789. 

(2) A third party entering a special appearance to defend against discovery may 

appeal. Kansas Gas & Electric Co. (Wolf Creek Nuclear Generating Station, 

Unit 1), ALAB-311, 3 NRC 85, 87-88 (1976). 

(3) As to orders denying a petition to intervene, only the petitioner who has been 

excluded from the proceeding by the order may appeal. In such an appeal, other 

parties may file briefs in support of or opposition to the appeal. USERDA (Clinch 

River Breeder Reactor Plant), ALAB-345, 4 NRC 212 (1976). 

(4) A party to a Licensing Board proceeding has no standing to press the grievances 

of other parties to the proceeding not represented by him. Houston Lighting and 

Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-631, 

13 NRC 87, 89 (1981), citing Puget Sound Power and Light Co. (Skagit Nuclear 

Power Project, Units 1 & 2), ALAB-556, 10 NRC 30 (1979); Carolina Power & 

Light Co. and North Carolina Eastern Municipal Power Agency (Shearon Harris 

Nuclear Power Plant), ALAB-837, 23 NRC 525, 542-543 n.58 (1986); Public 

Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), LBP-86-24, 

24 NRC 132, 135 & n.3 (1986); Carolina Power & Light Co. and North Carolina 

Eastern Municipal Power Agency (Shearon Harris Nuclear Power Plant), 

ALAB-843, 24 NRC 200, 203 n.3 (1986). 

One seeking to appeal an issue must have participated and taken all timely steps to 

correct the error. Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, 

Units 1 & 2), ALAB-583, 11 NRC 447 (1980). 

Although a party generally may appeal only on a showing of discernible injury, the Staff 

may appeal on questions of precedential importance. A question of precedential 

importance is a ruling that would with probability be followed by other Boards facing 

similar questions. A question of precedential importance can involve a question of 

remedy. Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, 

Units 1, 2, 3, & 4), ALAB-577, 11 NRC 18, 23-25 (1980), modified, CLI-80-12, 

11 NRC 514 (1980). 

5.2.1 Participating by Filing an Amicus Curiae Brief 

10 C.F.R. § 2.315 (formerly § 2.715) allows a non-party to file a brief amicus curiae

with regard to matters taken up by the Commission under § 2.341 or sua sponte. The 

non-party must submit a motion seeking leave to file the brief, and acceptance of the 

brief is a matter of discretion. 10 C.F.R. § 2.315(d) (formerly § 2.715(d)). 

Our rules contemplate amicus curiae briefs only after the Commission grants a petition 

for review, and do not provide for amicus briefs supporting or opposing petitions for 
JUNE 2011 APPEALS 9 

review. See 10 C.F.R. § 2.315(d) (formerly § 2.715(d)). Louisiana Energy (Claiborne 

Enrichment Center), CLI-97-7, 45 NRC 437, 438-39 (1997). 

The opportunity of a non-party to participate as amicus curiae has been extended to 

Licensing Board proceedings. A U.S. Senator lacked authorization under his state’s 

laws to represent his state in NRC proceedings. However, in the belief that the 

Senator could contribute to the resolution of issues before the Licensing Board, an 

Appeal Board authorized the Senator to file amicus curiae briefs or to present oral 

arguments on any legal or factual issue raised by the parties to the proceeding or the 

evidentiary record. Public Service Co. of New Hampshire (Seabrook Station, 

Units 1 & 2), ALAB-862, 25 NRC 144, 150 (1987). 

Requests for amicus curiae participation do not often arise in the context of Licensing 

Board hearings because factual questions generally predominate and an amicus

customarily does not present witnesses or cross-examine other parties’ witnesses. 

This happenstance, however, “does not perforce preclude the granting of leave in 

appropriate circumstances to file briefs or memoranda amicus curiae (or to present oral 

argument) on issues of law or fact that still remain for Licensing Board consideration.” 

Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-862, 

25 NRC 144, 150 (1987). Thus, in the context of a proceeding in which a legal issue 

predominates, permitting a petitioner that lacks standing to file an amicus pleading 

addressing that issue is entirely appropriate. General Public Utilities Nuclear Corp. 

(Oyster Creek Nuclear Generating Station), LBP-96-23, 44 NRC 143, 161 n.13 (1996). 

A state that does not seek party status or to participate as an “interested state” in the 

proceedings below is not permitted to file a petition for Commission review of a 

Licensing Board ruling. If the Commission takes review, the Commission may permit a 

person who is not a party, including a state, to file a brief amicus curiae. 

10 C.F.R. § 2.315(d) (formerly § 2.715(d)). Sequoyah Fuels Corp. and General 

Atomics (Gore, OK, site), CLI-96-3, 43 NRC 16, 17 (1996). 

Third parties may file amicus briefs with respect to any appeal, even though such third 

parties could not prosecute the appeal themselves. Consolidated Edison Co. (Indian 

Point Nuclear Generating Unit 2), ALAB-369, 5 NRC 129 (1977); Consolidated Edison 

Co. (Indian Point Nuclear Generating Units 1, 2 & 3), ALAB-304, 3 NRC 1, 7 (1976). If 

a matter is taken up by the Commission pursuant to 10 C.F.R. § 2.341(b) (formerly § 

2.786(b)), a person who is not a party may, in the discretion of the Commission, be 

permitted to file a brief amicus curiae. 10 C.F.R. § 2.315(d) (formerly § 2.715(c)). A 

person desiring to file an amicus brief must file a motion for leave to do so in 

accordance with the procedures in Section 2.715(c). Sequoyah Fuels Corporation and 

General Atomics (Gore, OK, site), CLI-96-3, 43 NRC 16, 17 (1996). 

Petitioner is free to monitor the proceedings and file a posthearing amicus curiae brief 

at the same time the parties to the proceeding file their posthearing submissions under 

10 C.F.R. § 2.1322(c). North Atlantic Energy Service Corp. (Seabrook Station, Unit 1), 

CLI-99-6, 49 NRC 201, 223 (1999). 

Rules for amicus briefs in 10 C.F.R. § 2.315(d) apply only to petitions for review filed 

under 10 C.F.R. § 2.341 or to matters taken up by the Commission sua sponte; the 

10 C.F.R. § 2.315(d) rules do not apply to appeals filed under 10 C.F.R. § 2.1015. 

U.S. Department of Energy (High-Level Waste Repository), CLI-08-22, 68 NRC 355, 
APPEALS 10 JUNE 2011 

359 (2008). Where 10 C.F.R. § 2.315(d) does apply, amicus briefs must be filed by the 

same deadline as the brief of the party whose side the amicus brief supports, unless 

the Commission provides otherwise. Id.

5.2.2 Aggrieved Parties Can Appeal 

Petitions for review should be filed only where a party is aggrieved by, or dissatisfied 

with, the action taken below and invokes appellate jurisdiction to change the result. A 

petition for review is unnecessary and inappropriate when a party seeks to appeal a 

decision whose ultimate result is in that party’s favor. Public Service Co. of Indiana

(Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-459, 7 NRC 179, 202 

(1978); South Carolina Electric & Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), 

ALAB-694, 16 NRC 958, 959-60 (1982), citing Public Service Co. of Indiana (Marble 

Hill Nuclear Generating Station, Units 1 & 2), ALAB-459, 7 NRC 179, 202 (1978); Duke 

Power Co. (Cherokee Nuclear Station, Units 1, 2, & 3), ALAB-478, 7 NRC 772, 773 

(1978); Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-282, 2 NRC 9, 

10 n.1 (1975); Northern States Power Co. (Prairie Island Nuclear Generating Plant, 

Units 1 & 2), ALAB-252, 8 AEC 1175, 1177, aff’d, CLI-75-1, 1 NRC 1 (1975); Toledo 

Edison Co. (Davis-Besse Nuclear Power Station), ALAB-157, 6 AEC 858, 859 (1973); 

Rochester Gas & Electric Corp. (Sterling Power Project, Nuclear Unit 1), ALAB-502, 

8 NRC 383, 393 n.21 (1978); Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power 

Plant, Units 1 & 2), ALAB-644, 13 NRC 903, 914 (1981); Virginia Electric & Power Co.

(North Anna Power Station, Units 1 & 2), ALAB-790, 20 NRC 1450, 1453 (1984); Long 

Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-832, 

23 NRC 135, 141 (1986), rev’d in part on other grounds, CLI-87-12, 26 NRC 383 

(1987); Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), ALAB-845, 

24 NRC 220, 252 (1986). 

An appeal from a ruling or a decision is normally allowed if the appellant can establish 

that, in the final analysis, some discernible injury to it has been sustained as a 

consequence of the ruling. Toledo Edison Co. (Davis Besse Nuclear Power Station), 

ALAB-157, 6 AEC 858, 859 (1973); Northern States Power Co. (Prairie Island Nuclear 

Generating Plant, Units 1 & 2), ALAB-252, 8 AEC 1175, aff’d, CLI-75-1, 1 NRC 1 

(1975). 

There is no right to an administrative appeal on every factual finding. Tennessee 

Valley Authority (Hartsville Nuclear Plant, Units 1A, 2A, 1B & 2B), ALAB-467, 

7 NRC 459, 461 n.5 (1978). As a general rule, a party may seek appellate redress 

only on those parts of a decision or ruling which he can show will result in some 

discernible injury to himself. Northern States Power Co. (Prairie Island Nuclear 

Generating Plant, Units 1 & 2), ALAB-252, 8 AEC 1175, aff’d, CLI-75-1, 1 NRC 1 

(1975). An intervenor may appeal only those issues which it placed in controversy or 

sought to place in controversy in the proceeding. 

In normal circumstances, an appeal will lie only from unfavorable action taken by the 

Licensing Board, not from wording of a decision with which a party disagrees but which 

has no operative effect. Duke Power Co. (Cherokee Nuclear Station, Units 1, 2 & 3), 

ALAB-482, 7 NRC 979, 980 (1978). For a case in which the Appeal Board held that a 

party may not file exceptions to a decision if it is not aggrieved by the result, see 

Rochester Gas & Electric Corp. (Sterling Power Project, Nuclear Unit 1), ALAB-502, 

8 NRC 383, 393 (1978). 
JUNE 2011 APPEALS 11 

 

The fact that a Board made an erroneous ruling is not sufficient to warrant appellate 

relief. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-788, 

20 NRC 1102, 1151 (1984), citing Cleveland Electric Illuminating Co. (Perry Nuclear 

Power Plant, Units 1 & 2), ALAB-443, 6 NRC 741, 756 (1977); Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), ALAB-827, 23 NRC 9, 11 (1986) (appeals 

should focus on significant matters, not every colorable claim of error); Long Island 

Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-832, 23 NRC 135, 143 

(1986), rev’d in part on other grounds, CLI-87-12, 26 NRC 383 (1987). A party seeking 

appellate relief must demonstrate actual prejudice – that the Board’s ruling had a 

substantial effect on the outcome of the proceeding. Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), ALAB-788, 20 NRC 1102, 1151 (1984), 

citing Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), 

ALAB-732, 17 NRC 1076, 1096 (1983). See Philadelphia Electric Co. (Limerick 

Generating Station, Units 1 & 2), ALAB-863, 25 NRC 273, 278, 280 (1987) (intervenors 

failed to show any specific harm resulting from erroneous Licensing Board rulings). 

5.2.3 Parties' Opportunity to Be Heard on Appeal 

Requests for emergency relief which require adjudicators to act without giving the 

parties who will be adversely affected a chance to be heard ought to be reserved for 

palpably meritorious cases and filed only for the most serious reasons. Emergency 

relief without affording the adverse parties at least some opportunity to be heard in 

opposition will be granted only in the most extraordinary circumstances. Consumers 

Power Co. (Midland Plant, Units 1 & 2), ALAB-395, 5 NRC 772, 780 n.27 (1977). 

5.3 How to Petition for Review

The general rules for petitions for review of a decision of a Board or presiding officer are 

set out in 10 C.F.R. § 2.341(b) (formerly § 2.786(b)). The general rules for an appeal from 

a Licensing Board decision wholly granting or denying intervention, are set out in 

10 C.F.R. 2.311 (formerly 2.714a). 

Under 10 C.F.R. § 2.341(b)(4) (formerly § 2.786(b)(4)(1)), the Commission will grant a 

petition for review if the petition raises a “substantial question” whether a finding of 

material fact is clearly erroneous or in conflict with a finding as to the same fact in a 

different proceeding. 

The NRC page limits on petitions for review and briefs are intended to encourage parties 

to make their strongest arguments clearly and concisely, and to hold all parties to the 

same number of pages of argument. The Commission should not be expected to sift 

unaided through large swaths of earlier briefs filed before the Presiding Officer in order to 

piece together and discern a party’s particular concerns or the grounds for its claims. 

Hydro Resources, Inc., CLI-01-4, 53 NRC 31, 46 (2001). The intervenor bears 

responsibility for any misunderstanding of its claims. Hydro Resources, Inc., CLI-01-4, 

53 NRC 31, 46 (2001). 

The Commission’s rule providing for review of decisions of a presiding officer states that a 

“petition for review...must be no longer than twenty five (25) pages.” See

10 C.F.R. § 2.341(b)(2) (enlarging 10-page limit formerly in § 2.786(b)(2)). Where a 

petitioner resorts to the use of voluminous footnotes, references to multipage sections of 
APPEALS 12 JUNE 2011 

earlier filings, and supplementation with affidavits that include additional substantive 

arguments, the Commission views this as an attempt to circumvent the intent of the pagelimit rule. See Production and Maintenance Employees Local 504 v. Roadmaster Corp., 

954 F.2d 1397, 1406 (7th Cir. 1992); see also Public Service Co. of New Hampshire

(Seabrook Station, Units 1 & 2), CLI-89-8, 29 NRC 399, 406 n.1 (1989). Carolina Power 

& Light Co. (Shearon Harris Nuclear Power Plant), CLI-01-11, 53 NRC 370, 393 (2001). 

Page limits “are intended to encourage parties to make their strongest arguments clearly 

and concisely, and to hold all parties to the same number of pages of argument.” Hydro 

Resources, Inc., CLI-01-4, 53 NRC 31, 46 (2001). The Commission expects parties to 

abide by its current page-limit rules, and if they cannot, to file a motion to enlarge the 

number of pages permitted. Carolina Power & Light Co. (Shearon Harris Nuclear Power 

Plant), CLI-01-11, 53 NRC 370, 393 (2001). 

5.4 Time for Seeking Review

As a general rule, only “final” actions are appealable. The test for “finality” for appeal 

purposes is essentially a practical one. For the most part, a Licensing Board’s action is 

final when it either disposes of a major segment of a case or terminates a party’s right to 

participate. Rulings that do neither are interlocutory. Toledo Edison Co. (Davis-Besse 

Nuclear Power Station), ALAB-300, 2 NRC 752, 758 (1975); Louisiana Power & Light Co.

(Waterford Steam Electric Station, Unit 3), ALAB-690, 16 NRC 893, 894 (1982), citing

Toledo Edison Co. (Davis-Besse Nuclear Power Station), ALAB-300, 2 NRC 752, 758 

(1975); Nuclear Engineering Co. (Sheffield, Illinois, Low-Level Radioactive Waste 

Disposal Site), ALAB-606, 12 NRC 156, 160 (1980); Wisconsin Electric Power Co. (Point 

Beach Nuclear Plant, Unit 1), ALAB-696, 16 NRC 1245, 1256 (1982); Cleveland Electric 

Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), LBP-83-77, 18 NRC 1365, 

1394-1395 (1983); Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), 

ALAB-894, 27 NRC 632, 636-37 (1988); Public Service Co. of New Hampshire (Seabrook 

Station, Units 1 & 2), ALAB-933, 31 NRC 491, 496-98 (1990); Public Service Co. of New 

Hampshire (Seabrook Station, Units 1 & 2), ALAB-943, 33 NRC 11, 12-13 (1991). 

Where a major segment of a case has been remanded to a Licensing Board, there is no 

final Licensing Board action for appellate purposes until the Licensing Board makes a final 

determination of all the remanded matters associated with that major segment. Public 

Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-943, 33 NRC 11, 

13 (1991). One may not appeal from an order delaying a ruling, when appeal will lie from 

the ruling itself. Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, 

Unit 1), ALAB-585, 11 NRC 469, 470 (1980). 

Administrative orders generally are final and appealable if they impose an obligation, deny 

a right, or fix some legal relationship as a consummation of the administrative process. 

Sierra Club v. NRC, 862 F.2d 222, 225 (9th Cir. 1988). 

A Licensing Board’s partial initial decision in an operating license proceeding, which 

resolves a number of safety contentions, but does not authorize the issuance of an 

operating license or resolve all pending safety issues, is nevertheless appealable since it 

disposes of a major segment of the case. Carolina Power & Light Co. and North Carolina 

Eastern Municipal Power Agency (Shearon Harris Nuclear Power Plant), LBP-85-28, 

22 NRC 232, 298 n.21 (1985), citing Boston Edison Co. (Pilgrim Nuclear Power Station, 

Unit 2), ALAB-632, 13 NRC 91, 93 n.2 (1981). See also Entergy Nuclear Vermont 
JUNE 2011 APPEALS 13 

Yankee, LLC and Energy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power 

Station), CLI-10-17, 71 NRC __ (July 8, 2010) (slip op. at 10). 

The requirement of finality applies with equal force to both appeals from rulings on 

petitions to intervene pursuant to 10 C.F.R. § 2.311 (formerly § 2.714a), and appeals from 

initial decisions. Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), 

ALAB-690, 16 NRC 893, 894 (1982). 

 

Licensing Board rulings denying waiver requests pursuant to 10 C.F.R. § 2.335 (formerly 

§ 2.758), which are interlocutory, are not considered final. Louisiana Energy Services

(Claiborne Enrichment Center), CLI-95-7, 41 NRC 383, 384 (1995). 

In determining whether an agency has issued a final order so as to permit judicial review, 

courts look to whether the agency’s position is definitive and if the agency action is 

affecting plaintiff’s day-to-day activities. General Atomics v. U.S. Nuclear Regulatory 

Com’n, 75 F.3d 536, 540 (9th Cir. 1996). 

Judicial review of an administrative agency’s jurisdiction should rarely be exercised before 

final decision from agency; sound judicial policy dictates that there be exhaustion of 

administrative remedies. The exhaustion of administrative remedies doctrine requires that 

the administrative agency be accorded opportunity to determine initially whether it has 

jurisdiction. General Atomics v. U.S. Nuclear Regulatory Com’n, 75 F.3d 536, 541 

(9th Cir. 1996). 

In general, an immediately effective Licensing Board initial decision is a “final order,” even 

though subject to appeal within the agency, unless its effectiveness has been 

administratively stayed pending the outcome of further Commission review. Public 

Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-349, 4 NRC 235 

(1976). In other areas, an order granting discovery against a third party is “final” and 

appealable as of right. Kansas Gas & Electric Co. (Wolf Creek Nuclear Generating 

Station, Unit 1), ALAB-311, 3 NRC 85, 87 (1976); Consumers Power Co. (Midland Plant, 

Units 1 & 2), ALAB-122, 6 AEC 322 (1973). Similarly, a Licensing Board order on the 

issue of whether offsite activity can be engaged in prior to issuance of a limited work 

authorization (LWA) or a construction permit is appealable. Kansas Gas & Electric Co.

(Wolf Creek Nuclear Generating Station, Unit 1), ALAB-331, 3 NRC 771, 774 (1976). 

When a Licensing Board grants a Part 70 license to transport and store fuel assemblies 

during the course of an operating license hearing, the decision is not interlocutory and is 

immediately appealable. Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, 

Units 1 & 2), CLI-76-1, 3 NRC 73, 74 (1976). Partial initial decisions which do not yet 

authorize construction activities nevertheless may be significant and, therefore, are 

subject to appellate review. Houston Lighting & Power Co. (Allens Creek Nuclear 

Generating Station, Units 1 & 2), ALAB-301, 2 NRC 853, 854 (1975). Similarly, a 

Licensing Board’s decision authorizing issuance of an LWA and rejecting the applicant’s 

claim that it is entitled to issuance of a construction permit is final for the purposes of 

appellate review. Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, 

Units 1 & 2), ALAB-461, 7 NRC 313, 318 (1978). 

A protracted withholding of action on a request for relief may be treated as tantamount to 

a denial of the request and final action. Consumers Power Co. (Midland Plant, 

Units 1 & 2), ALAB-417, 5 NRC 1442 (1977). At least in those instances where the delay 

involves a Licensing Board’s failure to act on a petition to intervene, such a “denial” of the 
APPEALS 14 JUNE 2011 

petition is appealable. Detroit Edison Co. (Greenwood Energy Center, Units 2 & 3), 

ALAB-376, 5 NRC 426, 428 (1977). 

An appeal is taken by the filing of a petition for review within fifteen (15) days after service 

of the initial decision. 10 C.F.R. § 2.341(b)(1). Licensing Boards may not vary or extend 

the appeal periods provided in the regulations. Duquesne Light Co. (Beaver Valley Power 

Station, Unit 1), ALAB-310, 3 NRC 33 (1976); Consolidated Edison Co. (Indian Point 

Nuclear Generating Unit 3), ALAB-281, 2 NRC 6 (1975). While a motion for a time 

extension may be filed, mere agreement among the parties is not sufficient to show good 

cause for an extension. Commonwealth Edison Co. (Zion Station, Units 1 & 2), 

ALAB-154, 6 AEC 827 (1973). 

The rules for taking an appeal also apply to appeals from partial initial decisions. Once a 

partial initial decision is rendered, review must be filed immediately in accordance with the 

regulations or the review is waived. Mississippi Power & Light Co. (Grand Gulf Nuclear 

Station, Units 1 & 2), ALAB-195, 7 AEC 455, 456 n.2 (1974). See also Houston Lighting & 

Power Co. (Allens Creek Nuclear Generating Station, Units 1 & 2), ALAB-301, 

2 NRC 853, 854 (1975). 

In the interest of efficiency, all rulings that deal with the subject matter of the hearing from 

which a partial initial decision ensues should be reviewed by the Commission at the same 

time. Therefore, the time to ask the Commission’s review of any claim that could have 

affected the outcome of a partial initial decision, including bases that were not admitted or 

that were dismissed prior to the hearing, is immediately after the partial initial decision is 

issued. The parties should assert any claims of error that relate to the subject matter of 

the partial initial decision, whether the specific issue was admitted for the hearing or not, 

and without regard to whether the issue was originally designated a separate “contention” 

or a “basis” for a contention. Private Fuel Storage, L.L.C. (Independent Spent Fuel 

Storage Installation), CLI-00-24, 52 NRC 351, 353 (2000). 

Efficiency does not require the Commission to review orders dismissing contentions or 

bases (or other preliminary order) unrelated to the subject matter of the hearing on which 

the Licensing Board issues its partial decision. Absent special circumstances, review of 

preliminary rulings unrelated to the partial initial decision must wait until either the Board 

considers the issue in a relevant partial initial decision or until the Board completes its 

proceedings, depending on the nature of the preliminary ruling. Private Fuel Storage, 

L.L.C. (Independent Spent Fuel Storage Installation), CLI-00-24, 52 NRC 351, 354 (2000). 

Although the time limits established by the Rules of Practice with regard to review of 

Licensing Board decisions and orders are not jurisdictional, policy is to construe them 

strictly. Hence untimely appeals are not accepted absent a demonstration of 

extraordinary and unanticipated circumstances. Consumers Power Co. (Midland Plant, 

Units 1 & 2), ALAB-684, 16 NRC 162, 165 n.3 (1982), citing Nuclear Engineering Co.

(Sheffield, Illinois, Low-Level Radioactive Waste Disposal Site), ALAB-606, 12 NRC 156, 

160 (1980); Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-98-21, 

48 NRC 185, 202 (1988). See Public Service Co. of New Hampshire (Seabrook Station, 

Units 1 & 2), ALAB-894, 27 NRC 632, 635 (1988). Failure to file an appeal in a timely 

manner amounts to a waiver of the appeal. Commonwealth Edison Co. (Zion Station, 

Units 1 & 2), ALAB-226, 8 AEC 381, 392-93 (1974). The same rule applies to appeals of 

partial initial decisions. A party must file its petition for review without waiting for the 

Licensing Board’s disposition of the remainder of the proceeding. Mississippi Power & 
JUNE 2011 APPEALS 15 

Light Co. (Grand Gulf Nuclear Station, Units 1 & 2), ALAB-195, 7 AEC 455, 456 n.2 

(1974). 

When a petition for review is filed with the Commission at the same time as a motion for 

reconsideration is filed with the Board, the Commission will delay considering the petition 

for review until after the Board has ruled. Private Fuel Storage, L.L.C. (Independent 

Spent Fuel Storage Installation), CLI-01-1, 53 NRC 1, 3 (2001), citing International 

Uranium Corp. (White Mesa Uranium Mill), CLI-97-9, 46 NRC 23, 24-25 (1997). 

The timeliness of a party’s brief on appeal from a Licensing Board’s denial of the party’s 

motion to reopen the record is determined by the standards applied to appeals from final 

orders, and not 10 C.F.R. § 2.311 (formerly § 2.714a(b)), which is specifically applicable 

to appeals from Board orders “wholly denying a petition for leave to intervene and/or 

request for a hearing.” Philadelphia Electric Co. (Limerick Generating Station, 

Units 1 & 2), ALAB-828, 23 NRC 13, 18 n.6 (1986). 

It is accepted appellate practice for the appeal period to be tolled while the trial tribunal 

has before it an authorized and timely-filed petition for reconsideration of the decision or 

order in question. Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 & 2), 

ALAB-659, 14 NRC 983 (1981). 

Pursuant to 10 C.F.R. § 2.311 (formerly § 2.714a), an appeal concerning an intervention 

petition must await the ultimate grant or denial of that petition. South Texas Project 

Nuclear Operating Company (South Texas Project Units 3 & 4), CLI-09-18, 70 NRC 859, 

861-62 (2009). A Licensing Board order which determines that petitioner has met the 

“interest” requirement for intervention and that mitigating factors outweigh the 

untimeliness of the petition but does not rule on whether petitioner has met the 

“contentions” requirement is not a final disposition of the petition seeking leave to 

intervene. Detroit Edison Co. (Greenwood Energy Center, Units 2 & 3), ALAB-472, 

7 NRC 570, 571 (1978). 

Finality of a decision is usually determined by examining whether it disposes of at least a 

major segment of the case or terminates a party’s right to participate. The general policy 

is to strictly enforce time limits for appeals following a final decision. However, where the 

lateness of filing was not due to a lack of diligence, but, rather, to a misapprehension 

about the finality of a Board decision, the appeal may be allowed as a matter of discretion. 

Nuclear Engineering Company, Inc. (Sheffield, Illinois Low-Level Radioactive Waste 

Disposal Site), ALAB-606, 12 NRC 156, 159-160 (1980); Public Service Co. of New 

Hampshire (Seabrook Station, Units 1 & 2), ALAB-894, 27 NRC 632, 635-637 (1988). 

A petitioner’s request that the denial of his intervention petition be overturned, treated as 

an appeal under 10 C.F.R. § 2.311 (formerly § 2.714a), will be denied as untimely where it 

was filed almost three (3) months after the issuance of a Licensing Board’s order, 

especially in the absence of a showing of good cause for the failure to file an appeal on 

time. Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), 

ALAB-547, 9 NRC 638, 639 (1979). 
APPEALS 16 JUNE 2011 

5.4.1 Variation in Time Limits on Appeals 

Only the Commission may vary the time for taking appeals; Licensing Boards have no 

power to do so. See Consolidated Edison Co. (Indian Point Nuclear Generating 

Unit 3), ALAB-281, 2 NRC 6 (1975). 

Of course, mere agreement of the parties to extend the time for the filing of an appeal 

is not sufficient to show good cause for such a time extension. Commonwealth Edison 

Co. (Zion Station, Units 1 & 2), ALAB-154, 6 AEC 827 (1973). 

5.5 Scope of Commission Review

A 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 considerations listed 

in 10 C.F.R. § 2.341(b)(4)(i)-(v) (formerly § 2.786(b)(4)(i)-(v)). These considerations 

include a finding of material fact is erroneous, or in conflict with precedent; a substantial 

question of law or policy; or prejudicial procedural error. 

When an issue is of obvious significance and is not fact-dependent, and when its present 

resolution could materially shorten the proceedings and guide the conduct of other 

pending proceedings, the Commission will generally dispose of the issue rather than 

remand it. Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), 

CLI-77-8, 5 NRC 503, 517 (1977); Hydro Resources, Inc. (P.O. Box 777, Crownpoint, 

New Mexico 87313), CLI-06-1, 63 NRC 1, 2 (2006). 

The Commission is not obligated to rule on every discrete point adjudicated below, so 

long as the Board was able to render a decision on other grounds that effectively dispose 

of the appeal. Duke Power Co. (William B. McGuire Nuclear Station, Units 1 & 2), 

ALAB-669, 15 NRC 453, 466 n.25 (1982), citing Houston Lighting & Power Co. (Allens 

Creek Nuclear Generating Station, Unit 1), ALAB-625, 13 NRC 13, 15 (1981). 

Acting as an appellate body, the Commission is free to affirm a Board decision on any 

ground finding support in the record, whether previously relied on or not. Private Fuel 

Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-05-1, 61 NRC 160, 166 

(2005) (citing Hertz v. Luzenac America, Inc., 370 F.3d 1014, 1017 (10th Cir. 2004); 

Carney v. American Univ., 151 F.3d 1090, 1096 (D.C. Cir. 1998). In CLI-05-1, the 

Commission rejected a timeliness challenge – that an argument made for the first time on 

appeal had not been the basis of the Board’s decision – when the argument had been 

made repeatedly in the course of the proceeding, including by the challenging party. PFS, 

CLI-05-1, 61 NRC at 165-66. 

Where the Presiding Officer has reviewed an extensive record in detail, with the 

assistance of a technical advisor, the Commission is generally disinclined to upset his 

findings and conclusions, particularly on matters involving fact-specific issues or where 

the affidavits or submissions of experts must be weighed. Hydro Resources, Inc., 

CLI-01-4, 53 NRC 31, 45-46 (2001). 

On appeal evidence may be taken – particularly in regard to limited matters as to which 

the record was incomplete. Tennessee Valley Authority (Hartsville Nuclear Plant, 

Units 1A, 2A, 1B & 2B), ALAB-467, 7 NRC 459, 461 (1978). However, since the 

Licensing Board is the initial fact-finder in NRC proceedings, authority to take evidence is 
JUNE 2011 APPEALS 17 

exercised only in exceptional circumstances. Public Service Co. of New Hampshire

(Seabrook Station, Units 1 & 2), ALAB-891, 27 NRC 341, 351 (1988). 

A Staff appeal on questions of precedential importance may be entertained. A question of 

precedential importance is a ruling that would with probability be followed by other Boards 

facing similar questions. See, e.g., Entergy Nuclear Vermont Yankee, LLC and Energy 

Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-10-17, 71 NRC __ 

(July 8, 2010) (slip op. at 13). A question of precedential importance can involve a 

question of remedy. Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, 

Units 1, 2, 3, & 4), ALAB-577, 11 NRC 18, 23-25 (1980), modified, CLI-80-12, 

11 NRC 514 (1980). 

Opinions that, in the circumstances of the particular case, are essentially advisory in 

nature are reserved (if given at all) for issues of demonstrable recurring importance. Long 

Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-743, 18 NRC 387, 

390 n.4 (1983); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), 

ALAB-900, 28 NRC 275, 284-85 (1988). 

There is some indication that a matter of recurring importance may be entertained on 

appeal in a particular case even though it may no longer be determinative in the case. 

Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), 

ALAB-461, 7 NRC 313, 316 (1978). 

On a petition for review, petitioner must adequately call the Commission’s attention to 

claimed errors in the Board’s approach. The Commission will not sift unaided through 

large swaths of earlier briefs in order to piece together and discern the petitioner’s claims. 

Where the petitioner has submitted a complex set of pleadings that includes numerous 

detailed footnotes, attachments, and incorporations by reference, the Commission would 

not be able to discern what specific claims are being alleged. The Commission deems 

waived any arguments not raised before the Board or not clearly articulated in the petition 

for review. See Hydro Resources, Inc. (P.O. Box 15910, Rio Rancho, NM 87174), CLI01-4, 53 NRC 31, 46 (2001); Commonwealth Edison Co. (Zion Nuclear Power Station, 

Units 1 & 2), CLI-99-4, 49 NRC 185, 194 (1999); Curators of the University of Missouri, 

CLI-95-1, 41 NRC 71, 132 n.81(1995). Carolina Power & Light Co. (Shearon Harris 

Nuclear Power Plant), CLI-01-11, 53 NRC 370, 383 (2001); Hydro Resources, Inc., 

CLI-04-33, 60 NRC 581, 591-92 (2004). But cf. Private Fuel Storage, L.L.C. (Independent 

Spent Fuel Storage Installation), CLI-05-1, 61 NRC 160, 181-82 (2005), where for reasons 

of administrative efficiency, the Commission agreed to consider as part of an appeal an 

applicant’s additional requests for redaction of allegedly privileged commercial 

information, even though the applicant would ordinarily have raised such supplemental 

requests initially with the Board. However, the Commission approved redaction of only 

one piece of information, where the rationale for approval was the same as for other 

information already redacted by the Board in its ruling; the Commission found no showing 

of good cause for the applicant’s failure to seek Board protection for the other pieces of 

information in the request. 

5.5.1 Issues Raised for the First Time on Appeal or in a Petition for Review 

Ordinarily an issue raised for the first time on appeal will not be entertained. 

Tennessee Valley Authority (Hartsville Nuclear Plant, Units 1A, 2A, 1B & 2B), 

ALAB-463, 7 NRC 341, 348 (1978) (issues not raised in either proposed findings or 
APPEALS 18 JUNE 2011 

exceptions to the initial decision). Consumers Power Co. (Midland Plant, Units 1 & 2), 

ALAB-691, 16 NRC 897, 907 (1982); Public Service Electric and Gas Co. (Salem 

Generating Station, Unit 1), ALAB-650, 14 NRC 43, 49 (1981); Detroit Edison Co.

(Enrico Fermi Atomic Power Plant, Unit 2), ALAB-709, 17 NRC 17, 22 (1983); 

Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), ALAB-828, 

23 NRC 13, 20 (1986); Georgia Power Co. (Alvin W. Vogtle Electric Generating Plant, 

Units 1 & 2), ALAB-872, 26 NRC 127, 133 (1987). See Public Service Co. of New 

Hampshire (Seabrook Station, Units 1 & 2), ALAB-924, 30 NRC 331, 358, 361 n.120 

(1989); Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), 

ALAB-932, 31 NRC 371, 397 n.101 (1990); Private Fuel Storage, L.L.C. (Independent 

Spent Fuel Storage Installation), CLI-00-21, 52 NRC 261, 264 (2000). Thus, as a 

general rule, an appeal may be taken only as to matters or issues raised at the 

hearing. Public Service Electric & Gas Co. (Salem Nuclear Generating Station, Unit 1), 

ALAB-650, 14 NRC 43 (1981); Metropolitan Edison Co. (Three Mile Island Nuclear 

Station, Unit 2), ALAB-486, 8 NRC 9, 28 (1978); Florida Power & Light Co. (St. Lucie 

Nuclear Power Plant, Unit 2), ALAB-335, 3 NRC 830, 842 n.26 (1976); Maine Yankee 

Atomic Power Co. (Maine Yankee Atomic Power Station), ALAB-161, 6 AEC 1003, 

1021 (1973); Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-123, 

6 AEC 331, 343 (1973); Sequoyah Fuels Corp. and General Atomics (Gore, OK, site), 

CLI-97-13, 46 NRC 195, 221 (1997). A contention will not be entertained for the first 

time on appeal, absent a serious substantive issue, where a party has not pursued the 

contention before the Licensing Board through proposed findings of fact. Southern 

California Edison Co. (San Onofre Nuclear Generating Station, Units 2 & 3), 

ALAB-680, 16 NRC 127, 143 (1982), citing Public Service Electric & Gas Co. (Salem 

Nuclear Generating Station, Unit 1), ALAB-650, 14 NRC 43, 49 (1981). The 

disinclination to entertain an issue raised for the first time on appeal is particularly 

strong where the issue and factual averments underlying it could have been, but were 

not, timely put before the Licensing Board. Puerto Rico Electric Power Authority (North 

Coast Nuclear Power Plant, Unit 1), ALAB-648, 14 NRC 34 (1981). 

Once an appeal has been filed from a Licensing Board’s decision resolving a particular 

issue, jurisdiction over that issue passes from the Licensing Board. Georgia Power Co.

(Alvin W. Vogtle Electric Generating Plant, Units 1 & 2), ALAB-859, 25 NRC 23, 27 

(1987); See Curators of the University of Missouri, CLI-95-1, 41 NRC 71, 93 (1995). 

Once a partial initial decision has been appealed, supervening factual developments 

relating to major safety issues considered in the partial initial decision are properly 

before the appellate body, not the Licensing Board. Gulf States Utilities Co. (River 

Bend Station, Units 1 & 2), ALAB-383, 5 NRC 609 (1977); Shieldalloy Metallurgical 

Corp. (Amendment Request for Decommissioning of the Newfield, New Jersey 

Facility), CLI-07-20, 65 NRC 499, 504 (2007). 

An intervenor who seeks to raise a new issue on appeal must satisfy the criteria for 

reopening the record as well as the requirements concerning the admissibility of latefiled contentions. Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), 

ALAB-845, 24 NRC 220, 248 n.29 (1986). 

An intervenor must raise an issue before the Presiding Officer or the intervenor will be 

precluded from supplementing the record before the Commission. Hydro Resources, 

Inc., CLI-00-8, 51 NRC 227, 243 (2000); Hydro Resources, Inc., CLI-06-29, 

64 NRC 417, 421 (2006). 
JUNE 2011 APPEALS 19 

For reasons of administrative efficiency, the Commission agreed in CLI-05-1 to 

consider as part of an appeal an applicant’s additional requests for redaction of 

allegedly privileged commercial information, even though the applicant would ordinarily 

have raised such supplemental requests initially with the Board. Private Fuel Storage, 

L.L.C. (Independent Spent Fuel Storage Installation), CLI-05-1, 61 NRC 160, 181 

(2005). However, the Commission approved redaction of only one piece of 

information, where the rationale for approval was the same as for other information 

already redacted by the Board in its ruling; the Commission found no showing of good 

cause for the applicant’s failure to seek Board protection for the other pieces of 

information in the request. Id. at 182. 

Jurisdiction to rule on a motion to reopen filed after an appeal has been taken to an 

initial decision rests with the appellate body rather than the Licensing Board. See 

Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), ALAB-726, 

17 NRC 755, 757 n.3 (1983), citing Metropolitan Edison Co. (Three Mile Island Nuclear 

Station, Unit 1), ALAB-699, 16 NRC 1324, 1327 (1982); Houston Lighting & Power Co.

(South Texas Project, Units 1 & 2), LBP-85-19, 21 NRC 1707, 1713 n.5 (1985). 

An appeal may only be based on matters and arguments raised below. Houston 

Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-582, 

11 NRC 239, 242 (1980); Philadelphia Electric Co. (Limerick Generating Station, 

Units 1 & 2), ALAB-828, 23 NRC 13, 20 (1986); Philadelphia Electric Co. (Limerick 

Generating Station, Units 1 & 2), ALAB-836, 23 NRC 479, 496 n.28 (1986); 

Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), ALAB-845, 

24 NRC 220, 235 (1986); Philadelphia Electric Co. (Limerick Generating Station, 

Units 1 & 2), ALAB-863, 25 NRC 273, 281 (1987). Even though a party may have 

timely appealed a Licensing Board’s ruling on an issue, the appeal may not be based 

on new arguments offered by the party on appeal and not previously raised before the 

Licensing Board. Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), ALAB-813, 

22 NRC 59, 82-83 (1985). Cf. Commonwealth Edison Co. (Braidwood Nuclear Power 

Station, Units 1 & 2), LBP-85-27, 22 NRC 126, 131 n.2 (1985). See Carolina Power & 

Light Co. and North Carolina Eastern Municipal Power Agency (Shearon Harris 

Nuclear Power Plant), ALAB-856, 24 NRC 802, 812 (1986); Pacific Gas & Electric Co.

(Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-880, 26 NRC 449, 457 

(1987), remanded on other grounds sub nom. Sierra Club v. NRC, 862 F.2d 222, 

229-30 (9th Cir. 1988). See also USEC, Inc. (American Centrifuge Plant), CLI-06-10, 

63 NRC 451, 458 (2006); Private Fuel Storage, L.L.C. (Independent Spent Fuel 

Storage Installation), CLI-04-4, 59 NRC 31, 44 (2004); Shieldalloy Metallurgical Corp.

(Amendment Request for Decommissioning of the Newfield, New Jersey Facility), 

CLI-07-20, 65 NRC 499, 504 (2007). A party cannot be heard to complain later about 

a decision that fails to address an issue no one sought to raise. Philadelphia Electric 

Co. (Limerick Generating Station, Units 1 & 2), ALAB-778, 20 NRC 42, 47-48 (1984). 

A party is not permitted to raise on appellate review Licensing Board practices to which 

it did not object at the hearing stage. Houston Lighting & Power Co. (South Texas 

Project, Units 1 & 2), ALAB-799, 21 NRC 360, 378 (1985). “In Commission practice 

the Licensing Board, rather than the Commission itself, traditionally develops the 

factual record in the first instance.” Louisiana Energy Services (Claiborne Enrichment 

Center), CLI-97-11, 46 NRC 49, 51 (1997), citing Georgia Institute of Technology

(Georgia Tech Research Reactor), CLI-95-10, 42 NRC 1, 2 (1995); accord,

Ralph L. Tetrick (Denial of Application for Reactor Operator License), CLI-97-5, 

45 NRC 355, 356 (1997). 
APPEALS 20 JUNE 2011 

5.5.2 Effect on Appeal of Failure to File Proposed Findings 

A party’s failure to file proposed findings on an issue may be “taken into account” if the 

party later appeals that issue. Northern States Power Co. (Prairie Island Nuclear 

Generating Plant, Units 1 & 2), ALAB-244, 8 AEC 857, 864 (1974); Consumers Power 

Co. (Midland Plant, Units 1 & 2), ALAB-123, 6 AEC 331, 333 (1973). Absent a 

Licensing Board order requiring the submission of proposed findings of fact and 

conclusions of law, an intervenor that does not make such a filing nevertheless is free 

to pursue on appeal all issues it litigated below. Detroit Edison Co. (Enrico Fermi 

Atomic Power Plant, Unit 2), ALAB-709, 17 NRC 17, 19, 20 (1983). 

5.5.3 Matters Considered on Appeal of Ruling Allowing Late Intervention 

One exception to the rule prohibiting interlocutory appeals is that a party opposing 

intervention may appeal an order admitting the intervenor. 10 C.F.R. § 2.311 (formerly 

§ 2.714a). See also Public Service Co. of Indiana (Marble Hill Nuclear Generating 

Station, Units 1 & 2), ALAB-339, 4 NRC 20, 23 n.7 (1976). However, since Licensing 

Boards have broad discretion in allowing late intervention, an order allowing late 

intervention is limited to determining whether that discretion has been abused. Virginia 

Electric & Power Co. (North Anna Power Station, Units 1 & 2), ALAB-342, 4 NRC 98, 

107 (1976); Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, 

Units 1 & 2), ALAB-339, 4 NRC 20 (1976). The papers filed in the case and the 

uncontroverted facts set forth therein will be examined to determine if the Licensing 

Board abused its discretion. Florida Power & Light Co. (St. Lucie Nuclear Power Plant, 

Unit 2), ALAB-420, 6 NRC 8 (1977). 

5.5.4 Consolidation of Appeals on Generic Issues 

Where the issues are largely generic, consolidation will result in a more manageable 

number of litigants, and relevant considerations will likely be raised in the first group of 

consolidated cases. Philadelphia Electric Co. (Peach Bottom Atomic Power Station, 

Units 2 & 3), ALAB-540, 9 NRC 428, 433 (1979), reconsid. denied, ALAB-546, 

9 NRC 636 (1979). The Appeal Board consolidated and scheduled for hearing radon 

cases where intervenors were actively participating and held the remaining cases in 

abeyance. 

5.6 Standards for Reversing Licensing Board on Findings of Fact and Other 

 Matters

Licensing Board rulings are affirmed where the brief on appeal points to no error of law or 

abuse of discretion that might serve as grounds for reversal of a Board’s decision. Private 

Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-00-21, 

52 NRC 261, 265 (2000); Amergen Energy Company, LLC (Oyster Creek Nuclear 

Generating Station), CLI-06-24, 64 NRC 111, 121 (2006) (noting that the Commission 

affords its Licensing Boards substantial deference on threshold issues, such as standing 

and the admissibility of contentions). 

Licensing Boards are the Commission’s primary fact-finding tribunals. Northern Indiana 

Public Service Co. (Bailly Generating Station, Nuclear-1), ALAB-303, 2 NRC 858, 867 

(1975). 
JUNE 2011 APPEALS 21 

Pursuant to 2 C.F.R. § 2.341(b)(4) (formerly 2 C.F.R. § 2.786(b)(4)), the Commission will 

generally defer to the Board on its fact-findings absent a showing that the Board’s findings 

were “clearly erroneous,” meaning that, in light of the record viewed in its entirety, the 

findings were not even plausible. Private Fuel Storage, L.L.C. (Independent Spent Fuel 

Storage Installation), CLI-05-16, 62 NRC 1, 3 (2005). 

The normal deference that an appellate body owes to the trier of the fact when reviewing 

a decision on the merits is even more compelling at the preliminary state of review. 

Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 & 3), 

ALAB-680, 16 NRC 127, 133 (1982), citing Toledo Edison Co. (Davis-Besse Nuclear 

Power Station, Units 1, 2, & 3), ALAB-385, 5 NRC 621, 629 (1977). 

In general, the Licensing Board findings may be rejected or modified if, after giving the 

Licensing Board’s decision the probative force it intrinsically commands, the record 

compels a different result. Niagara Mohawk Power Corp. (Nine Mile Point Nuclear 

Station, Unit 2), ALAB-264, 1 NRC 347, 357 (1975); accord, Northern Indiana Public 

Service Co. (Bailly Generating Station, Nuclear-1), ALAB-303, 2 NRC 858 (1975); Pacific 

Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-781, 

20 NRC 819, 834 (1984); Carolina Power & Light Co. and North Carolina Eastern 

Municipal Power Agency (Shearon Harris Nuclear Power Plant), ALAB-837, 23 NRC 525, 

531 (1986); Carolina Power & Light Co. and North Carolina Eastern Municipal Power 

Agency (Shearon Harris Nuclear Power Plant), ALAB-852, 24 NRC 532, 537 (1986); 

Carolina Power & Light Co. and North Carolina Eastern Municipal Power Agency

(Shearon Harris Nuclear Power Plant), ALAB-856, 24 NRC 802, 811 (1986); General 

Public Utilities Nuclear Corp. (Three Mile Island Nuclear Station, Unit 1), ALAB-881, 

26 NRC 465, 473 (1987); Florida Power & Light Co. (St. Lucie Nuclear Power Plant, 

Unit 1), ALAB-921, 30 NRC 177, 181-82 (1989); General Public Utilities Nuclear Corp.

(Three Mile Island Nuclear Station, Unit 2), ALAB-926, 31 NRC 1, 13-14 (1990). See 

Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-932, 

31 NRC 371, 397-98 (1990); Public Service Co. of New Hampshire (Seabrook Station, 

Units 1 & 2), ALAB-947, 33 NRC 299, 365 n.278 (1991). The same standard applies even 

if the review is sua sponte. Sacramento Municipal Utility District (Rancho Seco Nuclear 

Generating Station), ALAB-655, 14 NRC 799, 803 (1981). In fact, where the record would 

fairly sustain a result deemed “preferable” by the agency to the one selected by the 

Licensing Board, the agency may substitute its judgment for that of the lower Board. 

Tennessee Valley Authority (Hartsville Nuclear Plant, Units 1A, 2A, 1B, & 2B), ALAB-367, 

5 NRC 92 (1977); Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), ALAB-355, 

4 NRC 397, 402-405 (1976). Nevertheless, a finding by a Licensing Board will not be 

overturned simply because a different result could have been reached. Pacific Gas & 

Electric Co. (Diablo Canyon Nuclear Power Plant, Unit 2), ALAB-254, 8 AEC 1184, 

1187-1188 (1975); Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 2), 

ALAB-78, 5 AEC 319, 322 (1972). Moreover, the “substantial evidence” rule does not 

apply to the NRC’s internal review process and hence does not control evaluation of 

Licensing Board decisions. Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), 

ALAB-355, 4 NRC 397, 402-405 (1976); Louisiana Energy Services, L.P. (Claiborne 

Enrichment Center), CLI-98-3, 47 NRC 77 (1998). 

Where the Board’s decision for the most part rests on its own carefully rendered factual 

findings, the Commission has repeatedly declined to second-guess plausible Board 

decisions. See, e.g., Hydro Resources, Inc., CLI-01-4, 53 NRC 31, 45 (2001); Louisiana 
APPEALS 22 JUNE 2011 

Energy Services (Claiborne Enrichment Center), CLI-98-3, 47 NRC 77, 93 (1998); 

Kenneth G. Pierce, CLI-95-6, 41 NRC 381, 382 (1995); Carolina Power & Light Co.

(Shearon Harris Nuclear Power Plant), CLI-01-11, 53 NRC 370, 382 (2001); Hydro 

Resources, Inc. (P.O. Box 777, Crownpoint, New Mexico 87313), CLI-06-1, 63 NRC 1, 2 

(2006); David Geisen, CLI-06-19, 64 NRC 9, 11 (2006), citing Andrew Siemaszko, 

CLI-06-12, 63 NRC 495, 501 & n.14 (2006). But see, Duke Energy Corp. (Catawba 

Nuclear Station, Units 1 & 2), CLI-04-29, 60 NRC 417, 423 (2004), reconsid. denied, 

CLI-04-37, 60 NRC 646 (2004) (Ordinarily the Commission is disinclined to second-guess 

a Board’s finding on a discovery dispute, as the Board is more familiar than the 

Commission with the nature of the contentions in a particular proceeding. However, the 

Commission reversed a Board discovery ruling where the Commission had particular 

knowledge of the history and scope of the requested guidance documents because it had 

participated in their formulation.) 

The Commission tends not to upset the findings of a Presiding Officer on fact-specific 

technical issues, where the Presiding Officer has reviewed an extensive record in detail, 

with the assistance of a technical advisor. In particular, the Commission is reluctant to 

disturb the Presiding Officer’s findings and conclusions where the Presiding Officer has 

weighed the submissions of experts. Occasionally, the Commission may choose to make 

its own findings of fact. But it does not generally exercise that authority where a Presiding 

Officer or Licensing Board has issued a plausible decision that rests on carefully rendered 

findings of fact. Hydro Resources, Inc., CLI-06-29, 64 NRC 417, 422-23 (2006). 

The Commission is generally not inclined to upset the Board’s fact-driven findings and 

conclusions, particularly where it has weighed the affidavits or submissions of technical 

experts. AmerGen Energy Co., Inc. (Oyster Creek Nuclear Generating Station), 

CLI-08-28, 68 NRC 658, 675 (2008) (refusing to review Board’s weighing of evidence in 

decision on motion to reopen). Where the Board analyzed the parties’ technical 

submissions carefully, and made intricate and well-supported findings in a 42-page 

opinion, the Commission saw no basis, on appeal, to redo the Board’s work. Carolina 

Power & Light Co. (Shearon Harris Nuclear Power Plant), CLI-01-11, 53 NRC 370, 388 

(2001), aff’g LBP-00-12, 51 NRC 247, 269-280 (2000). See also Louisiana Energy 

Services, L.P. (National Enrichment Facility), CLI-05-28, 62 NRC 721, 723 (2005). Where 

a Presiding Officer reaches highly fact-specific findings following a review of technical 

information and consultation with technical experts, the Commission will ordinarily defer to 

these findings, absent an indication of a clearly erroneous finding. Hydro Resources, Inc., 

CLI-04-39, 60 NRC 657, 659 (2004). 

The Commission standard of “clear error” for overturning Board factual findings is quite 

high, particularly with respect to intricate factual findings based on expert witness 

testimony and credibility determinations. Private Fuel Storage, L.L.C. (Independent Spent 

Fuel Storage Installation), CLI-03-8, 58 NRC 11, 26-27 (2003). See also Private Fuel 

Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-05-1, 61 NRC 160, 174 

(2005). (The Commission traditionally defers to a Board’s disclosure-related factual 

findings, and will reverse only if the findings are “clearly erroneous” (quoting

10 C.F.R. § 2.786(b)(4)(i) [now 10 C.F.R. § 2.341(b)(4)(i)]).) 

The fact that a Board accorded greater weight to one party’s evidence than to the others’ 

is not a basis for overturning the Board’s decision. David Geisen, CLI-10-23, 72 NRC __ 

(Aug. 27, 2010) (slip op. at 12). 
JUNE 2011 APPEALS 23 

While the Commission has discretion to review all underlying factual issues de novo, it is 

disinclined to do so where the Board has weighed arguments presented by experts and 

rendered reasonable, record-based factual findings. The Commission generally steps in 

only to correct clearly erroneous findings – that is, findings not even plausible in light of 

the record reviewed in its entirety. Louisiana Energy Services, L.P. (National Enrichment 

Facility), CLI-06-15, 63 NRC 687, 697 (2006). See also Private Fuel Storage, L.L.C.

(Independent Spent Fuel Storage Installation), CLI-05-19, 62 NRC 403, 411 (2005). 

The Commission avoids engaging in de novo factual inquiries when reviewing Board 

decisions, particularly where the Board proceeding was especially complex and involved 

numerous experts and voluminous exhibits and where the Board has devoted weeks or 

months to the controversy. In general, the Commission will defer to the Board’s factual 

findings unless there is strong reason to believe, in the case at hand, that the Board has 

overlooked or misunderstood important evidence. PFS, CLI-05-19, 62 NRC at 411. 

However, for conclusions of law, the Commission will review questions de novo and will 

reverse a Board’s legal rulings if they depart from or are contrary to established law. 

Pa’ina Hawaii, LLC (Materials License Application), CLI-10-18, 71 NRC __ (July 8, 2010) 

(slip op. at 20), quoting AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating 

Station), CLI-09-7, 69 NRC 235, 259 (2009). 

The Board could not be said to have given short shrift to intervenor’s quality assurance 

concerns where the Board admitted the issue for hearing, allowed discovery, obtained 

written evidence, heard oral argument, and the Board ultimately devoted some 11 pages 

of its order to discussing the quality assurance issue on the merits. The Commission 

would not ordinarily second-guess Board fact-findings, particularly those reached with this 

degree of care. Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), 

CLI-01-11, 53 NRC 370, 391 (2001). 

In a materials licensing proceeding concerning uranium mining, the Commission found 

that the intervenors’ hearing rights were not violated where they had the opportunity to 

challenge the adequacy of the groundwater-related information submitted by the applicant 

and the Staff, as well as the methodology that would be used during the operational 

stages of mining to assure protection of groundwater quality. Hydro Resources, Inc.

(P.O. Box 777, Crownpoint, New Mexico 87313), CLI-06-1, 63 NRC 1, 6 (2006). 

A remand, very possibly accompanied by an outright vacation of the result reached below, 

would be the usual course where the Licensing Board’s decision does not adequately 

support the conclusions reached therein. Public Service Co. of New Hampshire

(Seabrook Station, Units 1 & 2), ALAB-422, 6 NRC 33, 42 (1977). Thus, a Licensing 

Board’s failure to clearly set forth the basis for its decision is ground for reversal. 

Although the Licensing Board is the primary fact-finder, the Commission may make factual 

findings based on its own review of the record and decide the case accordingly. See 

Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-732, 

17 NRC 1076, 1087 n.12 (1983). 

Licensing Board determinations on the timeliness of filing of motions are unlikely to be 

reversed on appeal as long as they are based on a rational foundation. Long Island 

Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-832, 23 NRC 135, 159-160 

(1986), rev’d in part on other grounds, CLI-87-12, 26 NRC 383 (1987). A Licensing 

Board’s determination that an intervenor has properly raised and presented an issue for 

adjudication is entitled to substantial deference and will be overturned only when it lacks a 
APPEALS 24 JUNE 2011 

rational foundation. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), 

ALAB-855, 24 NRC 792, 795 (1986). 

A determination of fact in an adjudicatory proceeding which is necessarily grounded 

wholly in a nonadversary presentation is not entitled to be accorded generic effect, even if 

the determination relates to a seemingly generic matter rather than to some specific 

aspect of the facility in question. Washington Public Power Supply System (WPPSS 

Nuclear Projects No. 3 & 5), ALAB-485, 7 NRC 986, 980 (1978). 

Adjudicatory decisions must be supported by evidence properly in the record. Pacific Gas 

& Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-580, 11 NRC 227, 

230 (1980). A Licensing Board finding that is based on testimony later withdrawn from the 

record will stand, if there is sufficient evidence elsewhere in the record to support the 

finding. Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), 

ALAB-841, 24 NRC 64, 84 (1986). 

Where a Licensing Board imposed an incorrect remedy, on appeal there may be a search 

for a proper one. Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, 

Units 1, 2, 3 & 4), ALAB-581, 11 NRC 233, 234-235 (1980), modified, CLI-80-12, 

11 NRC 514 (1980). 

If conditions on a license are invalid, the matter will be either remanded to the Board or 

the Commission may prescribe a remedy itself. See Carolina Power & Light Co. (Shearon 

Harris Nuclear Power Plant, Units 1, 2, 3, & 4), ALAB-577, 11 NRC 18, 31 (1980), 

reconsid., ALAB-581, 11 NRC 233 (1980), modified, CLI-80-12, 11 NRC 514 (1980). 

The Appeal Board would not ordinarily conduct a de novo review of the record and make 

its own independent findings of fact since the Licensing Board is the basic fact-finder 

under Commission procedures. Wisconsin Electric Power Co. (Point Beach Nuclear Plant 

No. 2), ALAB-78, 5 AEC 319 (1972). In this regard, Appeal Boards were reluctant to 

make essentially basic environmental findings which did not receive Staff consideration in 

the final environmental impact statement or adequate attention at the Licensing Board 

hearing. Texas Utilities Generating Co. (Comanche Peak Steam Electric Station, 

Units 1 & 2), ALAB-260, 1 NRC 51, 55 (1975). 

The Commission’s review of a Board’s settlement decision is de novo, although the 

Commission gives respectful attention to the Board’s views. In its review, the Commission 

uses the “due weight to...staff” and “public-interest” standards set forth in 

10 C.F.R. § 2.203 and New York Shipbuilding Co., 1 AEC 842 (1961). Sequoyah Fuels 

Corp. and General Atomics (Gore, OK, site), CLI-97-13, 46 NRC 195, 206 (1997). 

The Staff’s position, while entitled to “due weight,” is not itself dispositive of whether an 

enforcement settlement should be approved. Sequoyah Fuels Corp. and General Atomics

(Gore, OK, site), CLI-97-13, 46 NRC 195, 207-09 (1997). 

The Commission ordinarily defers to the Licensing Board standing determinations, and 

upheld the Presiding Officer’s refusal to grant standing for petitioner’s failure to specify its 

proximity-based standing claims. Atlas Corp. (Moab, Utah Facility), CLI-97-8, 46 NRC 21, 

22 (1997). 
JUNE 2011 APPEALS 25 

A Licensing Board normally has considerable discretion in making evidentiary rulings, and 

the Commission’s standard for review of these rulings is abuse of discretion. Duke 

Energy Corp. (Catawba Nuclear Station, Units 1 & 2), CLI-04-21, 60 NRC 21, 27 (2004). 

5.6.1 Standards for Reversal of Rulings on Intervention 

The Commission’s customary practice is to affirm Board rulings on contention 

admissibility absent an abuse of discretion or error of law. Nuclear Management 

Company, LLC (Palisades Nuclear Plant), CLI-06-17, 63 NRC 727, 729 (2006). 

On specific matters, a Licensing Board’s determination as to a petitioner’s “personal 

interest” will be reversed only if it is irrational. Duquesne Light Co. (Beaver Valley 

Power Station, Unit 1), ALAB-109, 6 AEC 243, 244 (1973); Northern States Power Co.

(Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-107, 6 AEC 188, 193 

(1973). In the absence of a clear misapplication of the facts or misunderstanding of the 

law, the Licensing Board’s judgment at the pleading stage that a party has standing is 

entitled to substantial deference. Gulf States Utilities Co. (River Bend Station, Unit 1), 

CLI-94-10, 40 NRC 43, 47-48 (1994). Georgia Institute of Technology (Georgia Tech 

Research Reactor), CLI-95-12, 42 NRC 111, 116 (1995); Private Fuel Storage, L.L.C.

(Independent Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 324 (1999); 

Sequoyah Fuels Corp. (Gore, OK, Site Decommissioning), CLI-01-2, 53 NRC 2, 14 

(2001). 

A Licensing Board’s determination that good cause exists for untimely filing will be 

reversed only for an abuse of discretion. USERDA (Clinch River Breeder Reactor 

Plant), ALAB-354, 4 NRC 383 (1976); Virginia Electric & Power Co. (North Anna Power 

Station, Units 1 & 2), ALAB-342, 4 NRC 98 (1976); Public Service Co. of Indiana

(Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-339, 4 NRC 20 (1976); 

Gulf States Utilities Co. (River Bend Station, Units 1 & 2), ALAB-329, 3 NRC 607 

(1976). 

A Licensing Board ruling on a discretionary intervention request will be reversed only if 

the Licensing Board abused its discretion. Andrew Siemaszko (CLI-06-16, 

63 NRC 708, 715 (2006). 

The Commission generally defers to the presiding officer’s determinations regarding 

standing, absent an error of law or an abuse of discretion. U.S. Army Installation 

Command (Schofield Barracks, Oahu, Hawaii, and Pohakuloa Training Area, Island of 

Hawaii, Hawaii), CLI-10-20, 72 NRC __ (Aug. 12, 2010) (slip op. at 3); International 

Uranium Corporation (White Mesa Uranium Mill), CLI 98-6, 47 NRC 116, 118 (1998); 

Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-98-13, 

48 NRC 26, 32 (1998); Northeast Nuclear Energy Company (Millstone Nuclear Power 

Station, Unit 3), CLI-98-20, 48 NRC 183 (1998); Yankee Atomic Electric Company

(Yankee Nuclear Power Station), CLI-98-21, 48 NRC 185, 201 (1988). 

The principle that Licensing Board determinations on the sufficiency of allegations of 

affected interest will not be overturned unless irrational presupposes that the 

appropriate legal standard for determining the “personal interest” of a petitioner has 

been invoked. Virginia Electric & Power Company (North Anna Nuclear Power Station, 

Units 1 & 2), ALAB-522, 9 NRC 54, 57 n.5 (1979). 
APPEALS 26 JUNE 2011 

Licensing Boards have broad discretion in balancing the eight factors which make up 

the criteria for nontimely filings listed in 10 C.F.R. § 2.309(c) (formerly § 2.714(a)(1)). 

However, a Licensing Board’s decision may be overturned where no reasonable 

justification can be found for the outcome that is determined. Philadelphia Electric Co.

(Limerick Generating Station, Units 1 & 2), ALAB-806, 21 NRC 1183, 1190 (1985), 

citing Washington Public Power Supply System (WPPSS Nuclear Project 3), 

ALAB-747, 18 NRC 1167, 1171 (1983); Philadelphia Electric Co. (Limerick Generating 

Station, Units 1 & 2), ALAB-828, 23 NRC 13, 20-21 (1986) (abuse of discretion by 

Licensing Board). See Public Service Co. of New Hampshire (Seabrook Station, 

Units 1 & 2), ALAB-865, 25 NRC 430, 443 (1987); Texas Utilities Electric Co.

(Comanche Peak Steam Electric Station, Unit 1), ALAB-868, 25 NRC 912, 922 (1987); 

Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-918, 

29 NRC 473, 481-82 (1989), remanded, Massachusetts v. NRC, 924 F.2d 311, 

333-337 (D.C. Cir. 1991), dismissed as moot, ALAB-946, 33 NRC 245 (1991). 

Where a Licensing Board holds that a contention is inadmissible for failing to meet 

more than one of the requirements specified in § 2.309(f)(1)(i)-(vi), a petitioner’s failure 

to address each ground for the Board’s ruling is sufficient justification for the 

Commission to reject the petitioner’s appeal. Dominion Nuclear Connecticut, Inc.

(Millstone Nuclear Power Station, Units 2 & 3), CLI-04-36, 60 NRC 631, 638 (2004). 

5.7 Stays

The Rules of Practice do not provide for an automatic stay of an order upon the filing of an 

appeal. A specific request must be made. Texas Utilities Generating Co. (Comanche 

Peak Steam Electric Station, Units 1 & 2), ALAB-714, 17 NRC 86, 97 (1983). The 

provision for stays in 10 C.F.R. § 2.342 (formerly § 2.788) provides only for stays of 

decisions or actions in the proceeding under review. Texas Utilities Electric Co.

(Comanche Peak Steam Electric Station, Unit 2), CLI-93-2, 37 NRC 55, 58 (1993). 

A stay of the effectiveness of a Licensing Board decision pending review of that decision 

may be sought by the party appealing the decision. 10 C.F.R. § 2.342 (formerly § 2.788) 

confers the right to seek stay relief only upon those who have filed (or intend to file) a 

timely petition for review of a decision or order sought to be stayed. Portland General 

Electric Co. (Trojan Nuclear Plant), ALAB-524, 9 NRC 65, 68-69 (1979). 

Such a stay is normally sought by written motion, although, in extraordinary 

circumstances, a stay ex parte may be granted. See, e.g., Northern Indiana Public 

Service Co. (Bailly Generating Station, Nuclear-1), ALAB-192, 7 AEC 420 (1974). The 

movant may submit affidavits in support of his motion; opposing parties may file opposing 

affidavits, and it is appropriate for the appellate tribunal to accept and consider such 

affidavits in ruling on the motion for a stay. Public Service Co. of New Hampshire

(Seabrook Station, Units 1 & 2), ALAB-356, 4 NRC 525 (1976). The party seeking a stay 

bears the burden of marshalling the evidence and making the arguments which 

demonstrate his entitlement to it. Consumers Power Co. (Midland Plant, Units 1 & 2), 

ALAB-395, 5 NRC 772, 785 (1977). 

General assertions, in conclusionary terms, of alleged harmful effects are insufficient to 

demonstrate entitlement to a stay. United States Dep’t of Energy, Project Management 

Corp., Tennessee Valley Authority (Clinch River Breeder Reactor Plant), ALAB-721, 
JUNE 2011 APPEALS 27 

17 NRC 539, 544 (1983), citing Public Service Co. of Oklahoma (Black Fox Station, 

Units 1 & 2), ALAB-505, 8 NRC 527, 530 (1978). 

In the past it has been held that, as a general rule, motions for stay of a Licensing Board 

action should be directed to the Licensing Board in the first instance. Under those earlier 

rulings, the Appeal Board made it clear that, while filing a motion for a stay with the 

Licensing Board is not a jurisdictional prerequisite to seeking a stay from the Appeal 

Board, Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-338, 

4 NRC 10 (1976), the failure, without good cause, to first seek a stay from the Licensing 

Board is a factor which the Appeal Board would properly take into account in deciding 

whether it should itself grant the requested stay. See Consumers Power Co. (Midland 

Plant, Units 1 & 2), ALAB-395, 5 NRC 772 (1977); Public Service Co. of New Hampshire, 

ALAB-338, 4 NRC 10 (1976). See also Toledo Edison Co. (Davis-Besse Nuclear Power 

Plant), ALAB-25, 4 AEC 633, 634 (1971). 

Under 10 C.F.R. § 2.342(f) (formerly § 2.788), a request for stay of a Licensing Board 

decision, pending the filing of a petition for Commission review, may be filed with either 

the Licensing Board or the Commission. 

The Commission applies the factors in 10 C.F.R. § 2.342(e) to requests to stay issuance 

of a license or license amendment. AmerGen Energy Co., LLC (Oyster Creek Nuclear 

Generating Station), CLI-08-13, 67 NRC 396, 399 (2008); Entergy Nuclear Operations 

and Entergy Nuclear Vermont Yankee, LLC (Vermont Yankee Nuclear Power Station) 

CLI-06-8, 63 NRC 235, 237 (2006). These are the same factors considered by courts in 

granting emergency injunctive relief. CLI-08-13, 67 NRC at 399. 

Where the Commission issues a stay wholly as a matter of its own discretion, it does not 

need to address the factors listed in 10 C.F.R. § 2.342 (formerly § 2.788). Yankee Atomic 

Electric Co. (Yankee Nuclear Power Station), CLI-96-5, 43 NRC 53, 60 (1996). 

In ruling on stay requests, the Commission has held that irreparable injury is the most 

crucial factor. Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power 

Station), CLI-00-17, 52 NRC 79 (2000); AmerGen Energy Co., LLC (Oyster Creek Nuclear 

Generating Station), CLI-08-13, 67 NRC 396, 399-400 (2008) (stating that if the movant 

cannot show irreparable harm, it must make an “overwhelming showing” of likelihood of 

success on the merits, i.e., that success on the merits is a “virtual certainty”). See also 

Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 & 2), CLI-81-27, 

14 NRC 795, 797 (1981). 

The effectiveness of conditions imposed in a construction permit may be stayed without 

staying the effectiveness of the permit itself. Toledo Edison Co. (Davis-Besse Nuclear 

Power Station, Units 1, 2 & 3), ALAB-385, 5 NRC 621 (1977). 

An appellate tribunal may entertain and grant a motion for a stay pending remand of a 

Licensing Board decision. See Public Service Co. of New Hampshire (Seabrook Station, 

Units 1 & 2), CLI-77-8, 5 NRC 503 (1977). 

The provisions of 10 C.F.R. § 2.342 (formerly § 2.788) apply only to requests for stays of 

decisions of the Licensing Board, not decisions of the Commission itself. A request for a 

stay of a previous Commission decision and a stay of the issuance of a full-power license 

pending judicial review is more properly entitled a “Motion for Reconsideration” and/or a 
APPEALS 28 JUNE 2011 

Motion to Hold in Abeyance.” Texas Utilities Electric Co. (Comanche Peak Steam Electric 

Station, Unit 2), CLI-93-11, 37 NRC 251 (1993). The date of service for purposes of 

computing the time for filing a stay motion under Section 2.342 (formerly Section 2.788) is 

the date on which the Docketing and Service Branch of the Office of the Secretary of the 

Commission serves the order or decision. Consolidated Edison Co. (Indian Point Nuclear 

Generating Unit 2), ALAB-414, 5 NRC 1425, 1427-1428 (1977). 

The Commission may issue a temporary stay to preserve the status quo without waiting 

for the filing of an answer to a motion for stay. 10 C.F.R. § 2.342(f) (formerly § 2.788(f)). 

The issuance of a temporary stay is appropriate where petitioners raise serious questions, 

that, if petitioners are correct, could affect the balance of the stay factors set forth in 

10 C.F.R. § 2.342(e) (formerly § 2.788(e)). Hydro Resources, Inc., LBP-98-3, 47 NRC 7 

(1998); Hydro Resources, Inc., CLI-98-4, 47 NRC 111, 112 (1998). 

Where a party files a stay motion with the Commission pursuant to 10 C.F.R. § 2.323 

(formerly § 2.730) (which contains no standards by which to decide stay motions), the 

Commission will turn for guidance to the general stay standards in Section 2.342 (formerly 

Section 2.788). Sequoyah Fuels Corporation and General Atomics (Gore, OK, site), 

CLI-94-9, 40 NRC 1, 6 (1994). Thus, a full stay pending judicial review of a Commission 

decision may require the movant to meet the Virginia Petroleum Jobbers Ass’n v. FPC, 

259 F.2d 921, 925 (D.C. Cir. 1958), criteria. See Northern Indiana Public Service Co.

(Bailly Generating Station, Nuclear-1), ALAB-224, 8 AEC 244, 272 (1974). 

If, absent a stay pending appeal, the status quo will be irreparably altered, grant of a stay 

may be justified to preserve the Commission’s ability to consider, if appropriate, the merits 

of a case. Texas Utilities Generating Co. (Comanche Peak Steam Electric Station, 

Units 1 & 2), CLI-83-6, 17 NRC 333, 334 (1983). 

5.7.1 Requirements for a Stay Pending Review 

The Commission may stay the effectiveness of an order if it has ruled on difficult legal 

questions and the equities of the case suggest that the status quo should be 

maintained during an anticipated judicial review of the order. Long Island Lighting Co. 

(Shoreham Nuclear Power Station, Unit 1), CLI-92-4, 35 NRC 69, 80 (1992), citing 

Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 

559 F.2d 841, 844 (D.C. Cir. 1977). 

5.7.1.1 Stays of Initial Decisions 

Stays of an initial decision will be granted only upon a showing similar to that 

required for a preliminary injunction in the federal courts. Boston Edison Co.

(Pilgrim Nuclear Power Station), ALAB-81, 5 AEC 348 (1972). The test to be 

applied for such a showing is that laid down in Virginia Petroleum Jobbers Ass’n v. 

FPC, 259 F.2d 921, 925 (D.C. Cir. 1958). Public Service Co. of New Hampshire

(Seabrook Station, Units 1 & 2), ALAB-338, 4 NRC 10 (1976); Philadelphia Electric 

Co. (Peach Bottom Atomic Power Station, Units 2 & 3), ALAB-221, 8 AEC 95, 96 

(1974); Southern California Edison Co. (San Onofre Nuclear Generating Station, 

Units 2 & 3), ALAB-199, 7 AEC 478, 480 (1974); Northern Indiana Public Service 

Co. (Bailly Generating Station, Nuclear-1), ALAB-192, 7 AEC 420, 421 (1974). See 

also Duke Power Co. (William B. McGuire Nuclear Station, Units 1 & 2), ALAB-647, 

14 NRC 27 (1981); South Carolina Electric & Gas Co. (Virgil C. Summer Nuclear 
JUNE 2011 APPEALS 29 

Station, Unit 1), ALAB-643, 13 NRC 898 (1981); Florida Power & Light Co. (Turkey 

Point Nuclear Generating Plant, Units 3 & 4), LBP-81-30, 14 NRC 357 (1981); 

Southern California Edison Co. (San Onofre Nuclear Generating Station, 

Units 2 & 3), ALAB-673, 15 NRC 688, 691 (1982); South Carolina Electric & Gas 

Co. (Virgil C. Summer Nuclear Station, Unit 1), LBP-82-84, 16 NRC 1183, 1184-85 

(1982); Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 & 2), 

LBP-83-40, 18 NRC 93, 96-97 (1983); Metropolitan Edison Co. (Three Mile Island 

Nuclear Station, Unit 1), CLI-84-17, 20 NRC 801, 803 n.3 (1984); Long Island 

Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-84-21, 20 NRC 1437, 

1440 (1984); Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), 

ALAB-789, 20 NRC 1443, 1446 (1984); Duke Power Co. (Catawba Nuclear Station, 

Units 1 & 2), ALAB-794, 20 NRC 1630, 1632 n.7 (1984); Philadelphia Electric Co.

(Limerick Generating Station, Units 1 & 2), ALAB-808, 21 NRC 1595, 1599 (1985); 

Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-810, 

21 NRC 1616, 1618 (1985); Pacific Gas and Electric Co. (Diablo Canyon Nuclear 

Power Plant, Units 1 & 2), CLI-85-14, 22 NRC 177, 178 n.1 (1985); Philadelphia 

Electric Co. (Limerick Generating Station, Units 1 & 2), ALAB-814, 22 NRC 191, 

193, 194 (1985); Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, 

Units 1 & 2), ALAB-820, 22 NRC 743, 746 n.5 (1985); Texas Utilities Electric Co.

(Comanche Peak Steam Electric Station, Unit 1), CLI-86-4, 23 NRC 113, 121-122 

(1986); Philadelphia Electric Co. (Limerick Generating Station, Unit 1), ALAB-835, 

23 NRC 267, 270 (1986); Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power 

Plant, Units 1 & 2), CLI-86-12, 24 NRC 1, 5 (1986), rev’d and remanded on other 

grounds sub nom. San Luis Obispo Mothers for Peace v. NRC, 799 F.2d 1268 

(9th Cir. 1986); Public Service Co. of New Hampshire (Seabrook Station, 

Units 1 & 2), ALAB-865, 25 NRC 430, 435 (1987); Pacific Gas & Electric Co. (Diablo 

Canyon Nuclear Power Plant, Units 1 & 2), ALAB-877, 26 NRC 287, 290 (1987); 

General Public Utilities Nuclear Corp. (Three Mile Island Nuclear Station, Unit 2), 

ALAB-914, 29 NRC 357, 361 (1989); Safety Light Corp. (Bloomsburg Site 

Decontamination), LBP-90-8, 31 NRC 143, 146 (1990), aff’d as modified, ALAB-931, 

31 NRC 350, 369 (1990); Public Service Co. of New Hampshire (Seabrook Station, 

Units 1 & 2), CLI-90-3, 31 NRC 219, 257 & n.59 (1990); Kerr-McGee Chemical 

Corp. (West Chicago Rare Earths Facility), ALAB-928, 31 NRC 263, 267 (1990); 

Curators of the University of Missouri, LBP-90-30, 32 NRC 95, 103-104 (1990); 

Curators of the University of Missouri, LBP-90-35, 32 NRC 259, 265-66 (1990); 

Umetco Minerals Corp., LBP-92-20, 36 NRC 112, 115-116 (1992); Texas Utilities 

Electric Co. (Comanche Peak Steam Electric Station, Unit 2), CLI-93-2, 37 NRC 55 

(1993); Sequoyah Fuels Corp. and General Atomics (Gore, OK, site), CLI-94-9, 

40 NRC 1, 6 (1994). 

5.7.1.2 Stays of Board Proceedings, Interlocutory Rulings and Staff Action 

The Virginia Petroleum Jobbers rule applies not only to stays of initial decisions of 

Licensing Boards, but also to stays of Licensing Board proceedings in general, 

Allied General Nuclear Services (Barnwell Nuclear Fuel Plant Separations Facility), 

ALAB-296, 2 NRC 671 (1975), and stays pending judicial review, Northern Indiana 

Public Service Co. (Bailly Generating Station, Nuclear-1), ALAB-224, 8 AEC 244, 

272 (1974). In addition, the concept of a stay pending consideration of a petition for 

directed certification has been recognized. Kansas Gas & Electric Co. (Wolf Creek 

Nuclear Generating Station, Unit 1), ALAB-307, 3 NRC 17 (1976). The rule applies 

to stays of LWAs, Public Service Co. of Indiana (Marble Hill Nuclear Generating 
APPEALS 30 JUNE 2011 

Station, Units 1 & 2), ALAB-437, 6 NRC 630 (1977), as well as to requests for 

emergency stays pending final disposition of a stay motion. Florida Power & Light 

Co. (St. Lucie Nuclear Power Plant, Unit 2), ALAB-404, 5 NRC 1185, 1186-89 

(1977). The rule also applies to stays of implementation and enforcement of 

radiation protection standards. Environmental Radiation Protection Standards for 

Nuclear Power Operations (40 C.F.R. 190), CLI-81-4, 13 NRC 298 (1981); Uranium 

Mill Licensing Requirements (10 C.F.R. Parts 30, 40, 70, and 150), CLI-81-9, 

13 NRC 460, 463 (1981). It also applies to postponements of the effectiveness of 

some license amendments issued by the NRC Staff. In the case of a request for 

postponement of an amendment, the Commission has stated that a bare claim of an 

absolute right to a prior hearing on the issuance of a license amendment does not 

constitute a substantial showing of irreparable injury as required by 

10 C.F.R. § 2.342 (formerly § 2.788(e)). Nuclear Fuel Services, Inc. and New York 

State Energy Research & Development Authority (Western New York Nuclear 

Service Center), CLI-81-29, 14 NRC 940 (1981). The rule has been applied to a 

stay of enforcement orders. Safety Light Corp. (Bloomsburg Site Decontamination), 

LBP-90-8, 31 NRC 143, 146 (1990), aff’d as modified, ALAB-931, 31 NRC 350, 369 

(1990). 

However, the NRC Staff’s issuance of an immediately effective license amendment 

based on a “no significant hazards consideration” finding is a final determination 

which is not subject to either a direct appeal or an indirect appeal to the Commission 

through the request for a stay. In special circumstances, the Commission may, on 

its own initiative, exercise its inherent discretionary supervisory authority over the 

Staff’s actions in order to review the Staff’s “no significant hazards consideration” 

determination. Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, 

Units 1 and 2), CLI-86-12, 24 NRC 1, 4-5 (1986), rev’d and remanded on other 

grounds sub nom. San Luis Obispo Mothers for Peace v. NRC, 799 F.2d 1268 

(9th Cir. 1986); 10 C.F.R. § 50.58(b)(6). 

Where petitioners do not relate their stay request to any action in the proceeding 

under review, the request for stay is beyond the scope of 10 C.F.R. § 2.342 

(formerly § 2.788). Such a request is more properly a petition for immediate 

enforcement action under 10 C.F.R. § 2.206. Texas Utilities Electric Co.

(Comanche Peak Steam Electric Station, Unit 2), CLI-93-2, 37 NRC 55, 58 (1993). 

Interlocutory appeals or petitions to the Commission are not devices for delaying or 

halting Licensing Board proceedings. The stringent four-part standard set forth in 

Section 2.342(e) (formerly Section 2.788(e)) makes it difficult for a party to obtain a 

stay of any aspect of a Licensing Board proceeding. Therefore, only in unusual 

cases should the normal discovery and other processes be delayed pending the 

outcome of an appeal or petition to the Commission. Cf. 10 C.F.R. § 2.323(g) 

(formerly § 2.730(g)). Sequoyah Fuels Corporation and General Atomics (Gore, 

OK, site), CLI-94-9, 40 NRC 1, 6 (1994). 

A party may file a motion for the Commission to stay the effectiveness of an 

interlocutory Licensing Board ruling, pursuant to 10 C.F.R. § 2.342 (formerly 

§ 2.788), pending the filing of a petition for interlocutory review of that Board order. 

See Georgia Power Co., et al. (Vogtle Electric Generating Plant, Units 1 & 2), 

CLI-94-5, 39 NRC 190, 193 (1994). 
JUNE 2011 APPEALS 31 

The provisions of 10 C.F.R. § 2.342 (formerly § 2.788) apply only to requests for 

stays of decisions of the Licensing Board, not decisions of the Commission itself. A 

request for a stay of a previous Commission decision and a stay of the issuance of a 

full-power license pending judicial review is more properly entitled a “Motion for 

Reconsideration” and/or a “Motion to Hold in Abeyance.” Texas Utilities Electric Co.

(Comanche Peak Steam Electric Station, Unit 2), CLI-93-11, 37 NRC 251 (1993). 

When ruling on stay motions in a license transfer proceeding, the Commission 

applies the four-pronged test set forth in 10 C.F.R. § 2.1327(d): 

 (1) Whether the requestor will be irreparably injured unless a stay is granted; 

 (2) Whether the requestor has made a strong showing that it is likely to 

 prevail on the merits; 

 (3) Whether the granting of a stay would harm other participants; and 

 (4) Where the public interest lies. 

Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), 

CLI-00-17, 52 NRC 79 (2000). 

The application for a stay will be denied when intervenors do not make a strong 

showing that they are likely to prevail on the merits or that they will be irreparably 

harmed pending appeal of the Licensing Board’s decision. Southern California 

Edison Co. (San Onofre Nuclear Generating Station, Units 2 & 3), CLI-82-11, 

15 NRC 1383, 1384 (1982). 

Note that 10 C.F.R. § 2.342 (formerly § 2.788) does not expressly deal with the 

matter of a stay pending remand of a proceeding to the Licensing Board. Prior to 

the promulgation of Section 2.342 (formerly Section 2.788), the Commission held 

that the standards for issuance of a stay pending proceedings on remand are less 

stringent than those of the Virginia Petroleum Jobbers test. Public Service Co. of 

New Hampshire (Seabrook Station, Units 1, 2, & 3), CLI-77-8, 5 NRC 503 (1977). 

The Commission ruled that the propriety of issuing a stay pending remand was to be 

determined on the basis of a traditional balance of equities and on consideration of 

possible prejudice to further actions resulting from the remand proceedings. See 

Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), CLI-89-15, 

30 NRC 96, 100 (1989). Similarly, in Consumers Power Co. (Midland Plant, 

Units 1 & 2), ALAB-395, 5 NRC 772 (1977), the Appeal Board ruled that the criteria 

for a stay pending remand differ from those required for a stay pending appeal. 

Thus, it appears that the criteria set forth in 10 C.F.R. § 2.342 (formerly § 2.788) 

may not apply to requests for stays pending remand. Where a litigant who has 

prevailed on a judicial appeal of an NRC decision seeks a suspension of the 

effectiveness of the NRC decision pending remand, such a suspension is not 

controlled by the Virginia Petroleum Jobbers criteria but, instead, is dependent upon 

a balancing of all relevant equitable considerations. In such circumstances, the 

negative impact of the court’s decision places a heavy burden of proof on those 

opposing the stay. Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-458, 

7 NRC 155, 159-60 (1978). 

Where petitioners who have filed a request to stay issuance of a low-power license 

are not parties to the operating license proceeding, and where petitioners’ request 

does not address the eight factors for untimely filing found in 
APPEALS 32 JUNE 2011 

10 C.F.R. § 2.309(c)(1)(i)-(viii) (formerly § 2.714(a)(1)(i)-(v)), the request cannot 

properly be considered in that operating license proceeding. Texas Utilities Electric 

Co. (Comanche Peak Steam Electric Station, Unit 2), CLI-93-2, 37 NRC 55, 57-58 

(1993). 

The Commission will hold a stay proceeding in abeyance pending the 

consummation of a tentative bankruptcy settlement that could make unnecessary an 

earlier Staff order approving the transfer of operating licenses. As the law favors 

settlements, the Commission will take this action absent a harm to third parties or 

the public interest. Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, 

Units 1 & 2), CLI-03-10, 58 NRC 127, 129 (2003). 

5.7.1.3 10 C.F.R. § 2.342 (formerly § 2.788) and Virginia Petroleum Jobbers

Criteria 

The Virginia Petroleum Jobbers criteria for granting a stay have been incorporated 

into the regulations. Southern California Edison Co. (San Onofre Nuclear 

Generating Station, Units 2 & 3), ALAB-680, 16 NRC 127, 130 (1982). See

10 C.F.R. § 2.342(e) (formerly § 2.788(e)). See Yankee Atomic Electric Co.

(Yankee Nuclear Power Station), CLI-94-3, 39 NRC 95, 100 (1994) (the 

Commission will decline a grant of petitioner’s request to halt decommissioning 

activities where petitioner failed to meet the four traditional criteria for injunctive 

relief); Hydro Resources. Inc., LBP-98-5, 47 NRC 119, 120 (1998). Since that 

section merely codifies longstanding agency practice which parallels that of the 

courts, Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-458, 7 NRC 155, 

170 (1978), prior agency case law delineating the application of the Virginia 

Petroleum Jobbers criteria presumably remains applicable. 

Under the Virginia Petroleum Jobbers test, codified in 10 C.F.R. 2.342(e) (formerly 

2.788(e)), four factors are examined: 

(1) has the movant made a strong showing that it is likely to prevail upon the 

merits of its appeal; 

(2) has the movant shown that, without the requested relief, it will be 

irreparably injured; 

(3) would the issuance of a stay substantially harm other parties interested in 

the proceeding; 

(4) where does the public interest lie? 

Section 2.342(b)(2) (formerly Section 2.788(b)(2)) specifies that an application for a 

stay must contain a concise statement of the grounds for stay, with reference to the 

factors specified in paragraph (e) of that section. Texas Utilities Electric Co.

(Comanche Peak Steam Electric Station, Unit 2), CLI-93-2, 37 NRC 55, 58 (1993). 

See also Fansteel, Inc. (Muskogee, Oklahoma Facility), LBP-99-47, 50 NRC 409 

(1999). 

A party’s failure to address the four stay factors in 10 C.F.R. § 2.342(e) is reason 

enough to deny a stay request. AmerGen Energy Co., LLC (Oyster Creek Nuclear 

Generating Station), CLI-08-13, 67 NRC 396, 399 (2008). 
JUNE 2011 APPEALS 33 

On a motion for a stay, the burden of persuasion on the four factors of Virginia 

Petroleum Jobbers is on the movant. Public Service Co. of Indiana (Marble Hill 

Nuclear Generating Station, Units 1 & 2), ALAB-493, 8 NRC 253, 270 (1978); 

Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 & 2), CLI-81-27, 

14 NRC 795 (1981). 

Stays pending appellate review are governed by 10 C.F.R. § 2.342 (formerly 

§ 2.788). Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage 

Installation), CLI-02-11, 55 NRC 260, 262-263 (2002); Carolina Power & Light Co. 

(Shearon Harris Nuclear Power Plant), CLI-01-11, 53 NRC 370, 392 (2001). 

A decision to deny a petition for review terminates adjudicatory proceedings before 

the Commission and renders moot a motion for a stay pending appeal. Carolina 

Power & Light Co. (Shearon Harris Power Plant), CLI-01-11, 53 NRC 370, 392 

(2001). 

The Commission took no action on the intervenor’s stay motion during its 

consideration of the intervenor’s petition for review because it saw no possibility of 

irreparable injury where the record indicated that the injury asserted by the 

intervenor could not occur until nearly four months hence and even at that point the 

additional spent fuel stored at the site would be no more than 150 fuel elements in 

that calendar year. Moreover, the intervenor’s claim of injury-offsite radiation 

exposure in the event of a spent fuel pool accident was speculative. These facts 

taken together result in a small likelihood of an accident occurring, and do not 

amount to the kind of “certain and great” harm necessary for a stay. Carolina Power 

& Light Co. (Shearon Harris Nuclear Power Plant), CLI-01-11, 53 NRC 370, 392-93 

(2001). See Cuomo v. NRC, 772 F.2d 972, 976 (D.C. Cir. 1985); accord, Cleveland 

Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), ALAB-820, 22 

NRC 743, 747-48 & n.20 (1985). 

Where the four factors set forth in 10 C.F.R. § 2.342(e) (formerly § 2.788(e)) are 

applicable, no one of these criteria is dispositive. International Uranium (USA) Corp.

(White Mesa Uranium Mill), LBP-02-9, 55 NRC 227, 232 (2002), see also Cleveland 

Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), ALAB-820, 

22 NRC 743, 746 n.8 (1985); Babcock and Wilcox (Apollo, PA, Fuel Fabrication 

Facility), LBP-92-31, 36 NRC 255 (1992). Rather, the strength or weakness of the 

movant’s showing on a particular factor will determine how strong his showing on 

the other factors must be in order to justify the relief he seeks. Public Service Co. of 

New Hampshire (Seabrook Station, Units 1 & 2), ALAB-338, 4 NRC 10 (1976); 

Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), 

LBP-81-30, 14 NRC 357 (1981); Cleveland Electric Illuminating Co. (Perry Nuclear 

Power Plant, Units 1 & 2), ALAB-820, 22 NRC 743, 746 n.8 (1985). Of the four stay 

factors, “the most crucial is whether irreparable injury will be incurred by the movant 

absent a stay.” Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 & 2), 

CLI-81-27, 14 NRC 795, 797 (1981). Accord, Sequoyah Fuels Corp. and General 

Atomics (Gore, OK, site), CLI-94-9, 40 NRC 1, 7 (1994); Carolina Power & Light Co. 

(Shearon Harris Nuclear Power Plant), CLI-01-11, 53 NRC 370, 393 (2001). 

International Uranium (USA) Corp. (White Mesa Uranium Mill), LBP-02-9, 

55 NRC 227 (2002), see also Public Service Co. of New Hampshire (Seabrook 

Station, Units 1 & 2), CLI-90-3, 31 NRC 219, 258 (1990). In any event, there should 

be more than a mere showing of the possibility of legal error by a Licensing Board to 
APPEALS 34 JUNE 2011 

warrant a stay. Philadelphia Electric Co. (Peach Bottom Atomic Power Station, 

Units 2 & 3), ALAB-221, 8 AEC 95 (1975); Philadelphia Electric Co. (Peach Bottom 

Atomic Power Station, Units 2 & 3), ALAB-158, 6 AEC 999 (1973). The 

establishment of grounds for appeal is not itself sufficient to justify a stay. Rather, 

there must be a strong probability that no ground will remain upon which the 

Licensing Board’s action could be based. Toledo Edison Co. (Davis-Besse Nuclear 

Power Station, Units 1, 2, & 3), ALAB-385, 5 NRC 621 (1977). 

5.7.1.3.1 Irreparable Injury 

Irreparable injury is the most important of the four factors considered for the grant 

of a stay. David Geisen, CLI-09-23, 70 NRC 935, 936 (2009), citing Entergy 

Nuclear Operations and Entergy Nuclear Vermont Yankee, LLC (Vermont 

Yankee Nuclear Power Station) CLI-06-8, 63 NRC 235, 237 (2006)). See 

Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 & 2), CLI-81-27, 

14 NRC 795 (1981); Public Service Co. of Indiana (Marble Hill Nuclear 

Generating Station, Units 1 & 2), ALAB-437, 6 NRC 630, 632 (1977); Texas 

Utilities Generating Co. (Comanche Peak Steam Electric Station, Units 1 & 2), 

ALAB-716, 17 NRC 341, 342 n.1 (1983); United States Dep’t of Energy, Project 

Management Corp., Tennessee Valley Authority (Clinch River Breeder Reactor 

Plant), ALAB-721, 17 NRC 539, 543 (1983); Metropolitan Edison Co. (Three Mile 

Island Nuclear Station, Unit 1), CLI-84-17, 20 NRC 801, 804 (1984); Philadelphia 

Electric Co. (Limerick Generating Station, Units 1 & 2), ALAB-789, 20 NRC 1443, 

1446 (1984); Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), 

ALAB-794, 20 NRC 1630, 1633 n.11 (1984); Philadelphia Electric Co. (Limerick 

Generating Station, Units 1 & 2), ALAB-808, 21 NRC 1595, 1599 (1985); 

Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), 

ALAB-820, 22 NRC 743, 746 & n.7 (1985); Philadelphia Electric Co. (Limerick 

Generating Station, Unit 1), ALAB-835, 23 NRC 267, 270 (1986); Public Service 

Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-865, 25 NRC 430, 

436 (1987); General Public Utilities Nuclear Corp. (Three Mile Island Nuclear 

Station, Unit 2), ALAB-914, 29 NRC 357, 361 (1989); Public Service Co. of New 

Hampshire (Seabrook Station, Units 1 & 2), CLI-90-3, 31 NRC 219, 258 (1990); 

Hydro Resources, Inc., LBP-98-5, 47 NRC 119 (1998); Hydro Resources, Inc., 

CLI-98-8, 47 NRC 314, 321 n.5 (1998). See, e.g., Public Service Co. of New 

Hampshire (Seabrook Station, Units 1 & 2), CLI-77-27, 6 NRC 715, 716 (1977); 

Rochester Gas & Electric Corp. (Sterling Power Project, Nuclear Unit 1), 

ALAB-507, 8 NRC 551, 556 (1978); Long Island Lighting Co. (Jamesport Nuclear 

Power Station, Units 1 & 2), ALAB-481, 7 NRC 807, 808 (1978). See also 

Westinghouse Electric Corp. (Exports to the Philippines), CLI-80-14, 

11 NRC 631, 662 (1980). It is the established rule that a party is not ordinarily 

granted a stay of an administration order without an appropriate showing of 

irreparable injury. Id. (quoting Permian Basin Area Rate Cases, 390 U.S. 747, 

773 (1968)). Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), 

ALAB-814, 22 NRC 191, 196 (1985), citing Duke Power Co. (Catawba Nuclear 

Station, Units 1 & 2), ALAB-794, 20 NRC 1630, 1633-35 (1984)). See General 

Public Utilities Nuclear Corp. (Three Mile Island Nuclear Station, Unit 2), 

ALAB-914, 29 NRC 357, 361-62 (1989); Hydro Resources, Inc., CLI-98-8, 

47 NRC 314, 324 (1998); Pacific Gas & Electric Co. (Diablo Canyon Power Plant 

Independent Spent Fuel Storage Installation), LBP-02-15, 56 NRC 42, 48 (2002); 
JUNE 2011 APPEALS 35 

U.S. Dept. of Energy (High Level Waste Repository), CLI-05-27, 62 NRC 715, 

718 (2005). 

Without a showing of irreparable injury, a petitioner for a stay must show that 

success on the merits is a “virtual certainty” to prevail. Shieldalloy Metallurgical 

Corp. (License Amendment Request for Decommissioning of the Newfield, New 

Jersey Site), CLI-10-08, 71 NRC __ (Jan. 7, 2010) (slip op. at 16), quoting 

David Geisen, CLI-09-23, 70 NRC at 937. 

A party is not ordinarily granted a stay absent an appropriate showing of 

irreparable injury. Where a decision as to which a stay is sought does not allow 

the issuance of any licensing authorization and does not affect the status quo 

ante, the movant will not be injured by the decision and there is, quite simply, 

nothing for the tribunal to stay. Long Island Lighting Co. (Jamesport Nuclear 

Power Station, Units 1 & 2), ALAB-481, 7 NRC 807, 808 (1978). 

Where the Licensing Board’s decision is itself the cause of irreparable injury, a 

stay of proceedings pending review is appropriate. Private Fuel Storage, L.L.C.

(Independent Spent Fuel Storage Installation), CLI-02-8, 55 NRC 222, 225 

(2002). 

The irreparable injury requirement is not satisfied by some cost merely feared as 

liable to occur at some indefinite time in the future. Toledo Edison Co. (DavisBesse Nuclear Power Station, Units 1, 2, & 3), ALAB-385, 5 NRC 621 (1977). 

Mere economic loss does not constitute irreparable injury. Long Island Lighting 

Co. (Shoreham Nuclear Power Station, Unit 1), CLI-92-4, 35 NRC 69, 81 (1992), 

citing Ohio ex rel. Celebrezze v. NRC, 812 F.2d 288, 291 (6th Cir. 1987). Nor 

are actual injuries, however substantial in terms of money, time and energy 

necessarily expended in the absence of a stay, sufficient to justify a stay if not 

irreparable. Toledo Edison Co. (Davis-Besse Nuclear Power Station, 

Units 1, 2, & 3), ALAB-385, 5 NRC 621 (1977); see Public Service Co. of New 

Hampshire (Seabrook Station, Units 1 & 2), ALAB-865, 25 NRC 430, 437-38 

(1987). Similarly, mere litigation expense, even substantial and unrecoupable 

cost, does not constitute irreparable injury. Private Fuel Storage, L.L.C. 

(Independent Spent Fuel Storage Installation), CLI-02-11, 55 NRC 260, 263 

(2002); Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-395, 

5 NRC 772, 779 (1977); Allied-General Nuclear Services (Barnwell Nuclear Fuel 

Plant Separation Facility), ALAB-296, 2 NRC 671 (1975); Metropolitan Edison 

Co. (Three Mile Island Nuclear Station, Unit 1), CLI-84-17, 20 NRC 801, 804 

(1984); Sequoyah Fuels Corp. and General Atomics (Gore, Oklahoma Site), 

CLI-94-9, 40 NRC 1, 6 (1994); Pacific Gas & Electric Co. (Diablo Canyon Power 

Plant Independent Spent Fuel Storage Installation), LBP-02-15, 56 NRC 42, 49 

(2002). 

The mere possibility that a stay would save other parties from incurring 

significant litigation expenses is insufficient to offset the movant’s failure to 

demonstrate irreparable injury and a strong likelihood of success on the merits. 

Sequoyah Fuels Corp. and General Atomics (Gore, Oklahoma Site), CLI-94-9, 

40 NRC 1, 6 (1994). Discovery in a license amendment case does not constitute 

irreparable injury. Georgia Power Co. (Vogtle Electric Generating Plant, 

Units 1 & 2), LBP-93-8, 37 NRC 292, 298 (1993). Litigation expense, even 
APPEALS 36 JUNE 2011 

substantial and unrecoupable cost, does not constitute irreparable injury. U.S. 

Dept. of Energy (High Level Waste Repository), CLI-05-27, 62 NRC 715, 718 

(2005). 

Similarly, the expense of an administrative proceeding is usually not considered 

irreparable injury. Uranium Mill Licensing Requirements (10 C.F.R. Parts 30, 40, 

70, and 150), CLI-81-9, 13 NRC 460, 465 (1981), citing Meyers v. Bethlehem 

Shipbuilding Corp., 303 U.S. 41 (1938). 

An intervenor’s claim that an applicant’s commitment of resources to the 

operation of a facility pending an appeal will create a Commission bias in favor of 

continuing a license does not constitute irreparable injury. The Commission has 

clearly stated that it will not consider the commitment of resources to a 

completed plant or other economic factors in its decisionmaking on compliance 

with emergency planning safety regulations. Public Service Co. of New 

Hampshire (Seabrook Station, Units 1 & 2), CLI-90-3, 31 NRC 219, 258-59 

(1990), citing Seacoast Anti-Pollution League v. NRC, 690 F.2d 1025 

(D.C. Cir. 1985). Additionally, a party’s claim that discovery expenses might 

deplete assets allotted for decommissioning activities does not constitute 

irreparable injury. Sequoyah Fuels Corp. and General Atomics (Gore, OK, site), 

CLI-94-9, 40 NRC 1, 6 (1994). However, the Commission also noted that the 

commitment of resources and other economic factors are properly considered in 

the National Environmental Policy Act (NEPA) decisionmaking process. Public 

Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), CLI-90-3, 

31 NRC 219, 258 n.62 (1990). Thus, a party challenging the alternative site 

selection process may be able to show irreparable injury if a stay is not granted 

to halt the development of a proposed site during the pendency of its appeal. 

Any resources which might be expended in the development of the proposed site 

would have to be considered in any future cost-benefit analysis and, if 

substantial, could skew the cost-benefit analysis in favor of the proposed site 

over any alternative sites. Kerr-McGee Chemical Corp. (West Chicago Rare 

Earths Facility), ALAB-928, 31 NRC 263, 268-269 (1990). 

The fact that an appeal might become moot following denial of a motion for a 

stay does not per se constitute irreparable injury. International Uranium (USA) 

Corp. (White Mesa Uranium Mill), LBP-02-9, 55 NRC 227, 233 (2002). It must 

also be established that the activity that will take place in the absence of a stay 

will bring about concrete harm. Long Island Lighting Co. (Shoreham Nuclear 

Power Station, Unit 1), ALAB-810, 21 NRC 1616, 1620 (1985), citing Duke 

Power Co. (Catawba Nuclear Station, Units 1 & 2), ALAB-794, 20 NRC 1630, 

1635 (1984). See Public Service Co. of New Hampshire (Seabrook Station, 

Units 1 & 2), CLI-89-8, 29 NRC 399, 411-12 (1989). 

Speculation about a nuclear accident does not, as a matter of law, constitute the 

imminent, irreparable injury required for staying a licensing decision. Cleveland 

Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), ALAB-820, 

22 NRC 743, 748 n.20 (1985), citing Pacific Gas and Electric Co. (Diablo Canyon 

Nuclear Power Plant, Units 1 & 2), CLI-84-5,19 NRC 953, 964 (1984); 

Philadelphia Electric Co. (Limerick Generating Station, Unit 1), ALAB-835, 

23 NRC 267, 271 (1986); Public Service Co. of New Hampshire (Seabrook 

Station, Units 1 & 2), CLI-90-3, 31 NRC 219, 259-260 (1990). 
JUNE 2011 APPEALS 37 

The risk of harm to the general public or the environment flowing from an 

accident during low-power testing is insufficient to constitute irreparable injury. 

Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), 

ALAB-865, 25 NRC 430, 437 (1987); Public Service Co. of New Hampshire 

(Seabrook Station, Units 1 & 2), CLI-89-8, 29 NRC 399, 410 (1989). Similarly, 

irreversible changes produced by the irradiation of the reactor during low-power 

testing do not constitute irreparable injury. Seabrook, CLI-89-8, supra, 

29 NRC at 411. 

Mere exposure to the risk of full-power operation of a facility does not constitute 

irreparable injury when the risk is so low as to be remote and speculative. Pacific 

Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), 

CLI-85-14, 22 NRC 177, 180 (1985). 

The importance of a showing of irreparable injury absent a stay was stressed by 

the Appeal Board in Public Service Co. of Oklahoma (Black Fox Station, 

Units 1 & 2), ALAB-505, 8 NRC 527, 530 (1978), where the Appeal Board 

indicated that a stay application which does not even attempt to make a showing 

of irreparable injury is virtually assured of failure. 

A party who fails to show irreparable harm must make a strong showing on the 

other stay factors in order to obtain the grant of a stay. Public Service Co. of 

New Hampshire (Seabrook Station, Units 1 & 2), CLI-90-3, 31 NRC 219, 260 

(1990); Sequoyah Fuels Corp. and General Atomics (Gore, OK, site), CLI-94-9, 

40 NRC 1, 6 (1994). 

5.7.1.3.2 Possibility of Success on Merits 

The “level or degree of possibility of success” on the merits necessary to justify a 

stay will vary according to the tribunal’s assessment of the other factors that must 

be considered in determining if a stay is warranted. Public Service Co. of 

Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-437, 

6 NRC 630, 632 (1977), citing Washington Metropolitan Area Transit 

Commission v. Holiday Tours, 559 F.2d 841 (D.C. Cir. 1977); Hydro Resources,

Inc., LBP-98-5, 47 NRC 119, 120 (1998). Where there is no showing of 

irreparable injury absent a stay and the other factors do not favor the movant, an 

overwhelming showing of likelihood of success on the merits is required to obtain 

a stay. Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Unit 2), 

ALAB-404, 5 NRC 1185, 1186-1189 (1977); Cleveland Electric Illuminating Co.

(Perry Nuclear Power Plant, Units 1 & 2), ALAB-820, 22 NRC 743, 746 n.8 

(1985) (a virtual certainty of success on the merits). See also Florida Power & 

Light Co. (St. Lucie Nuclear Power Plant, Unit 2), ALAB-415, 5 NRC 1435, 1437 

(1977) to substantially the same effect; Public Service Co. of New Hampshire

(Seabrook Station, Units 1 & 2), ALAB-865, 25 NRC 430, 439 (1987); General 

Public Utilities Nuclear Corp. (Three Mile Island Nuclear Station, Unit 2), 

ALAB-914, 29 NRC 357, 362-63 (1989); Kerr-McGee Chemical Corp. (West 

Chicago Rare Earths Facility), ALAB-928, 31 NRC 263, 269 (1990); Sequoyah 

Fuels Corp. and General Atomics (Gore, OK, site), CLI-94-9, 40 NRC 1, 7 

(1994). 
APPEALS 38 JUNE 2011 

To make a strong showing of likelihood of success on the merits, the movant 

must do more than list the possible grounds for reversal. Toledo Edison Co.

(Davis-Besse Nuclear Power Station, Units 1, 2 & 3), ALAB-385, 5 NRC 621 

(1977); Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 & 2), 

CLI-81-27, 14 NRC 795 (1981); Kerr-McGee Chemical Corp. (West Chicago 

Rare Earths Facility), ALAB-928, 31 NRC 263, 269-70 (1990). A party’s 

expression of confidence or expectation of success on the merits of its appeal 

before the Commission or the Boards is too speculative and is also insufficient. 

Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), ALAB-814, 

22 NRC 191, 196 (1985), citing Metropolitan Edison Co. (Three Mile Island 

Nuclear Station, Unit 1), CLI-84-17, 20 NRC 801, 804-805 (1984). 

While the Commission will grant a stay where the chance of reversal on appeal is 

“overwhelming” or “a virtual certainty,” the Commission is reluctant to rush to 

judgment on the merits of an appeal, where there is no irreparable harm. U.S. 

Dept. of Energy (High Level Waste Repository), CLI-05-27, 62 NRC 715, 719 

(2005). 

Absent a demonstration of irreparable harm or likelihood of success on the 

merits, the Commission found it unnecessary to evaluate the two remaining 

factors as there was no basis upon which to grant a stay. Shieldalloy

Metallurgical Corp. (License Amendment Request for Decommissioning of the 

Newfield, New Jersey Site), CLI-10-08, 71 NRC __ (Jan. 7, 2010) (slip op. at 30). 

5.7.1.3.3 Harm to Other Parties and Where the Public Interest Lies 

If the movant for a stay fails to meet its burden on the first two 

10 C.F.R. § 2.342(e) (formerly § 2.788(e)) factors, it is not necessary to give 

lengthy consideration to balancing the other two factors. Long Island Lighting 

Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-810, 21 NRC 1616, 1620 

(1985), citing Duke Power Co. (Catawba Nuclear Station, Units 1& 2), 

ALAB-794, 20 NRC 1630,1635 (1984); Hydro Resources, Inc., LBP-98-5, 

47 NRC 119, 120 (1998). See Cleveland Electric Illuminating Co. (Perry Nuclear 

Power Plant, Units 1 & 2), ALAB-820, 22 NRC 743, 746 n.8 (1985); General 

Public Utilities Nuclear Corp. (Three Mile Island Nuclear Station, Unit 2), 

ALAB-914, 29 NRC 357, 363 (1989); Kerr-McGee Chemical Corp. (West 

Chicago Rare Earths Facility), ALAB-928, 31 NRC 263, 270 (1990); Sequoyah 

Fuels Corporation and General Atomics (Gore, OK, site), CLI-94-9, 40 NRC 1, 8 

(1994). 

Although an applicant’s economic interests are not generally within the proper 

scope of issues to be litigated in NRC proceedings, a Board may consider such 

interests in determining whether, under the third stay criterion, the granting of a 

stay would harm other parties. Thus, a Board may consider the potential 

economic harm to an applicant caused by a stay of the applicant’s operating 

license. Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), 

ALAB-808, 21 NRC 1595, 1602-03 (1985). See, e.g., Louisiana Power and Light 

Co. (Waterford Steam Electric Station, Unit 3), CLI-85-3, 21 NRC 471, 477 

(1985); Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Unit 2), 

ALAB-404, 5 NRC 1185, 1188 (1977); Pacific Gas & Electric Co. (Diablo Canyon 

Nuclear Power Plant, Units 1 & 2), CLI-85-14, 22 NRC 177, 180 (1985). 
JUNE 2011 APPEALS 39 

The imminence of the hearing is also a factor in a determination that the public 

interest will be served if the parties are allowed to wrap up the matters they have 

been litigating. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage 

Installation), CLI-02-11, 55 NRC 260, 263 (2002). 

In a decontamination enforcement proceeding where a licensee seeks a stay of 

an immediately effective order, the fourth factor – where the public interest lies – 

is the most important consideration. Safety Light Corp. (Bloomsburg Site 

Decontamination), LBP-90-8, 31 NRC 143, 148 (1990), aff’d as modified, 

ALAB-931, 31 NRC 350, 369 (1990). 

5.7.2 Stays Pending Remand to Licensing Board 

10 C.F.R. § 2.342 (formerly § 2.788) does not expressly deal with the matter of a stay 

pending remand of a proceeding to the Licensing Board. Prior to the promulgation of 

Section 2.342 (formerly 2.788), the Commission held that the standards for issuance of 

a stay pending remand are less stringent than those of the Virginia Petroleum Jobbers

test. Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), CLI-77-8, 

5 NRC 503 (1977). In this vein, the Commission ruled that the propriety of issuing a 

stay pending remand was to be determined on the basis of a traditional balancing of 

equities and on consideration of possible prejudice to further actions resulting from the 

remand proceedings. 

Where judicial review discloses inadequacies in an agency’s environmental impact 

statement prepared in good faith, a stay of the underlying activity pending remand does 

not follow automatically. Whether the project need be stayed essentially must be 

decided on the basis of (1) traditional balancing of equities, and (2) consideration of 

any likely prejudice to further decisions that might be called for by the remand. 

Consumers Power Company (Midland Plant, Units 1 & 2), ALAB-395, 5 NRC 772, 

784-85 (1977). The seriousness of the remanded issue is a third factor which a Board 

will consider before ruling on a party’s motion for a stay pending remand. Long Island 

Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-84-53, 20 NRC 1531, 

1543 (1984), citing Public Service Co. of New Hampshire (Seabrook Station, 

Units 1 & 2), CLI-77-8, 5 NRC 503, 521 (1977). 

5.7.3 Stays Pending Judicial Review 

Requests for stays pending judicial review have been entertained under the Virginia 

Petroleum Jobbers criteria (see Section 5.7.1, supra) to determine if a stay is 

appropriate. Northern Indiana Public Service Co. (Bailly Generating Station, 

Nuclear-1), ALAB-224, 8 AEC 244, 272 (1974); Natural Resources Defense Council, 

CLI-76-2, 3 NRC 76 (1976). 

Section 10(d) of the Administrative Procedure Act (5 U.S.C. § 705) pertains to an 

agency’s right to stay its own action pending judicial review of that action. It confers no 

freedom on an agency to postpone taking some action when the impetus for the action 

comes from a court directive. Consumers Power Company (Midland Plant, 

Units 1 & 2), ALAB-395, 5 NRC 772, 783-84 (1977). 
APPEALS 40 JUNE 2011 

The Appeal Board suspended sua sponte its consideration of an issue in order to await 

the possibility of Supreme Court review of related issues, following the rendering of a 

decision by the First Circuit Court of Appeals, where certiorari had not yet been sought 

or ruled upon for such Supreme Court review. Public Service Co. of New Hampshire

(Seabrook Station, Units 1 & 2), ALAB-548, 9 NRC 640, 642 (1979). 

5.7.4 Stays Pending Remand After Judicial Review 

Where a litigant who has prevailed upon a judicial appeal of an NRC decision seeks a 

suspension of the effectiveness of the NRC decision pending remand, such a 

suspension is not controlled by the Virginia Petroleum Jobbers criteria but, instead, is 

dependent upon a balancing of all relevant equitable considerations. Consumers 

Power Co. (Midland Plant, Units 1 & 2), ALAB-458, 7 NRC 155, 159-60 (1978). In 

such circumstances, the negative impact of the court’s decision places a heavy burden 

of proof on those opposing the stay. Id. at 160. 

5.7.5 Immediate Effectiveness Review of Operating License Decisions 

In a Federal Register notice dated Aug. 28, 2007 (72 Fed. Reg. 49,352), the 

Commission published a final rule amending 10 C.F.R. § 2.340. The amendments to 

§ 2.340 make Presiding Officers’ initial decisions in production and utilization 

proceedings immediately effective. See 72 Fed. Reg. at 49,415-16. Previously, 

10 C.F.R. § 2.340(f)(2) (formerly § 2.764(f)(2)), provided that upon receipt of a 

Licensing Board’s decision authorizing the issuance of a full-power operating license, 

the Commission would determine, sua sponte, whether to stay the effectiveness of the 

decision. Criteria to be considered by the Commission included, but were not limited 

to: the gravity of the substantive issue; the likelihood that it has been resolved 

incorrectly below; and the degree to which correct resolution of the issue would be 

prejudiced by operation pending review. Until the Commission spoke, the Licensing 

Board’s decision was considered to be automatically stayed. Duke Power Co.

(William B. McGuire Nuclear Station, Units 1 & 2), ALAB-647, 14 NRC 27 (1981); 

Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), CLI-85-13, 

22 NRC 1, 2 n.1 (1985); Philadelphia Electric Co. (Limerick Generating Station, 

Units 1 & 2), CLI-85-15, 22 NRC 184, 185 n.2 (1985). 

The Commission’s immediate effectiveness review is usually based upon a full 

Licensing Board decision on all contested issues. However, the Commission 

conducted an immediate effectiveness review and authorized the issuance of a fullpower license for Limerick Unit 2, even though, pursuant to a federal court remand, 

Limerick Ecology Action v. NRC, 869 F.2d 719 (3rd Cir. 1989), there was an ongoing 

Licensing Board proceeding to consider environmental issues. The Commission noted 

that: (1) all contested safety issues had been fully heard and resolved; and (2) the 

NEPA does not always require resolution of all contested environmental issues and 

completion of the entire NEPA review process prior to the issuance of a license. 

Philadelphia Electric Co. (Limerick Generating Station, Unit 2), CLI-89-17, 

30 NRC 105, 110 (1989), citing 40 C.F.R. 1506.1. 

An intervenor’s speculative comments are insufficient grounds for a stay of a Licensing 

Board’s authorization of a full-power operating license. The intervenor must challenge 

the Licensing Board’s substantive conclusions concerning contested issues in the 

proceeding. Carolina Power & Light Co. and North Carolina Eastern Municipal Power 
JUNE 2011 APPEALS 41 

Agency (Shearon Harris Nuclear Power Plant), CLI-87-1, 25 NRC 1, 4 (1987), aff’d sub 

nom. Eddleman v. NRC, 825 F.2d 46 (4th Cir. 1987). 

Prior to moving for a stay of issuance of the operating license, a person or persons 

who are not parties to the license proceeding must petition for and be granted late 

intervention and reopening. Texas Utilities Electric Co. (Comanche Peak Steam 

Electric Station, Unit 2) CLI-93-11, 37 NRC 251 (1993). 

Where construction of a plant is “substantially completed” any request to stay 

construction is moot. Texas Utilities Electric Co. (Comanche Peak Steam Electric 

Station, Unit 2) CLI-93-11, 37 NRC 251, 254 (1993). 

The Commission’s denial of a stay, pursuant to its immediate effectiveness review, 

does not preclude a party from petitioning under 10 C.F.R. § 2.341 (formerly § 2.786) 

for appellate review of the Licensing Board’s conclusions. Carolina Power & Light Co. 

and North Carolina Eastern Municipal Power Agency (Shearon Harris Nuclear Power 

Plant), CLI-87-1, 25 NRC 1, 4 n.3 (1987) (citing 10 C.F.R. § 2.764, now § 2.340), aff’d 

sub nom. Eddleman v. NRC, 825 F.2d 46 (4th Cir. 1987). 

Prior to amendments to 10 C.F.R. § 2.340 (formerly § 2.764) in August 2007 

(72 Fed. Reg. 49,352, 49,415 (Aug. 28, 2007)), before a full-power license can be 

issued for a plant, the Commission had to complete its immediate effectiveness review 

of the pertinent Licensing Board decision pursuant to 10 C.F.R. § 2.340(f)(2) (formerly 

§ 2.764(f)(2)). Southern California Edison Co. (San Onofre Nuclear Generating 

Station, Units 2 & 3), ALAB-680, 16 NRC 127, 144 n.26 (1982). 

5.7.6 Stay/Suspension of Ongoing Adjudicatory Proceedings 

Although the Commission’s regulations do not provide for a motion to suspend a 

proceeding, the Commission is occasionally asked to consider a request to suspend or 

hold ongoing proceedings in abeyance as an exercise of the Commission’s inherent 

supervisory power over proceedings. AmerGen Energy Co., LLC (Oyster Creek 

Nuclear Generating Station), CLI-08-23, 68 NRC 461, 484 & n.105 (2008) (listing in a 

footnote three prior cases in which the Commission was asked to suspend an ongoing 

proceeding). Suspension of an ongoing proceeding is a drastic action and is not 

warranted in the absence of “immediate threats to public health and safety.” Id. 

5.8 Review as to Specific Matters

5.8.1 Scheduling Orders 

Since a scheduling decision is a matter of Licensing Board discretion, it will generally 

not be disturbed absent a “truly exceptional situation.” Virginia Electric & Power Co.

(North Anna Power Station, Units 1 & 2), ALAB-584, 11 NRC 451, 467 (1980); Public 

Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-295, 2 NRC 668 

(1975); Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), 

ALAB-293, 2 NRC 660 (1975); Northern Indiana Public Service Co. (Bailly Generating 

Station, Nuclear-1), ALAB-224, 8 AEC 244, 250 (1974); Cleveland Electric Illuminating 

Co. (Perry Nuclear Power Plant, Units 1 & 2), ALAB-841, 24 NRC 64, 95 (1986). See 

also Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-344, 4 NRC 207, 209 

(1976) (Appeal Board was reluctant to overturn or otherwise interfere with scheduling 
APPEALS 42 JUNE 2011 

orders of Licensing Boards absent due process problems); Houston Lighting & Power 

Co. (South Texas Project, Units 1 & 2), ALAB-637, 13 NRC 367 (1981) (Appeal Board 

was loath to interfere with a Licensing Board’s denial of a request to delay a 

proceeding where the Commission has ordered an expedited hearing; in such a case, 

there must be a “compelling demonstration of a denial of due process or the threat of 

immediate and serious irreparable harm” to invoke discretionary review); Public 

Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-858, 

25 NRC 17, 21 (1987) (petitioner failed to substantiate its claim that a Licensing Board 

decision to conduct simultaneous hearings deprived it of the right to a fair hearing); 

Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-860, 

25 NRC 63, 68 (1987) (intervenors’ concerns about infringement of procedural due 

process were premature); Philadelphia Electric Co. (Limerick Generating Station, 

Units 1 & 2), ALAB-863, 25 NRC 273, 277 (1987) (intervenor failed to show specific 

harm resulting from the Licensing Board’s severely abbreviated hearing schedule); 

Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-864, 

25 NRC 417, 420-21 (1987); Public Service Co. of New Hampshire (Seabrook Station, 

Units 1 & 2), ALAB-889, 27 NRC 265, 269 (1988); Public Service Co. of New 

Hampshire (Seabrook Station, Units 1& 2), CLI-89-4, 29 NRC 243, 244 (1989). But 

see, USEC, Inc. (American Centrifuge Plant), CLI-07-5, 65 NRC 109 (2007) (reversing 

Board decision rejecting applicant’s request to accelerate the Board’s proposed 

mandatory hearing schedule because the Board based its mandatory hearing schedule 

on milestones for contested proceedings and failed to even acknowledge the 

Commission’s goal of issuing a final Commission decision on the application within 

thirty (30) months of the application’s submission). 

In determining the fairness of a Licensing Board’s scheduling decisions, the totality of 

the relevant circumstances disclosed by the record will be considered. Public Service 

Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-864, 25 NRC 417, 421 

(1987); Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), 

ALAB-889, 27 NRC 265, 269 (1988). 

Where a party alleges that a Licensing Board’s expedited hearing schedule violated its 

right to procedural due process by unreasonably limiting its opportunity to conduct 

discovery, an Appeal Board will examine: the amount of time allotted for discovery; the 

number, scope, and complexity of the issues to be tried; whether there exists any 

practical reason or necessity for the expedited schedule; and whether the party has 

demonstrated actual prejudice resulting from the expedited hearing schedule. Public 

Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-864, 

25 NRC 417, 421, 425-27 (1987). Although, absent special circumstances, the Appeal 

Board will generally review Licensing Board scheduling determinations only where 

confronted with a claim of deprivation of due process, the Appeal Board may, on 

occasion, review a Licensing Board scheduling matter when that scheduling appears to 

be based on the Licensing Board’s misapprehension of an Appeal Board directive. 

See, e.g., Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-468, 7 NRC 464, 

468 (1978). 

Matters of scheduling rest peculiarly within the Licensing Board’s discretion; the Appeal 

Board is reluctant to review scheduling orders, particularly when asked to do so on an 

interlocutory basis. Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-541, 

9 NRC 436, 438 (1979). 
JUNE 2011 APPEALS 43 

5.8.2 Discovery Rulings 

5.8.2.1 Rulings on Discovery Against Non-Parties 

An order granting discovery against a non-party is final and appealable by that nonparty as of right. Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-122, 

6 AEC 322 (1973). An order denying such discovery is wholly interlocutory and 

immediate review by the party seeking discovery is excluded by 10 C.F.R. § 2.341(f) 

(formerly § 2.730(f)). Commonwealth Edison Co. (Zion Station, Units 1 & 2), 

ALAB-116, 6 AEC 258 (1973); Long Island Lighting Co. (Shoreham Nuclear Power 

Station, Unit 1), ALAB-780, 20 NRC 378, 380-81 (1984). 

5.8.2.2 Rulings Curtailing Discovery 

In appropriate instances, an order curtailing discovery is appealable. To establish 

reversible error from curtailment of discovery procedures, a party must demonstrate 

that the action made it impossible to obtain crucial evidence, and implicit in such a 

showing is proof that more diligent discovery is impossible. Northern Indiana Public 

Service Co. (Bailly Generating Station, Nuclear-1), ALAB-303, 2 NRC 858, 869 

(1975). Absent such circumstances, however, an order denying discovery, and 

discovery orders in general, are not immediately appealable since they are 

interlocutory. Houston Lighting & Power Co. (South Texas Project, Units 1 & 2), 

ALAB-639, 13 NRC 469, 472 (1981); Public Service Co. of Oklahoma (Black Fox 

Station, Units 1 & 2), ALAB-370, 5 NRC 131 (1977). 

5.8.3 Refusal to Compel Joinder of Parties 

A Licensing Board’s refusal to compel joinder of certain persons as parties to a 

proceeding is interlocutory in nature and, pursuant to 10 C.F.R. § 2.341 (formerly 

§ 2.730(f)), is not immediately appealable. Public Service Co. of Oklahoma (Black Fox 

Station, Units 1 & 2), ALAB-370, 5 NRC 131 (1977). 

5.8.3.1 Order Consolidating Parties 

Just as an order denying consolidation is interlocutory, an order consolidating the 

participation of one party with others may not be appealed prior to the conclusion of 

the proceeding. Portland General Electric Co. (Trojan Nuclear Plant), ALAB-496, 

8 NRC 308, 309-310 (1978); Public Service Co. of Indiana (Marble Hill Nuclear 

Generating Station, Units 1 & 2), ALAB-339, 4 NRC 20, 23 (1976). 

5.8.4 Order Denying Summary Disposition 

An order denying a motion for summary disposition under 10 C.F.R. § 2.710 (formerly 

§ 2.749) is not immediately appealable. Entergy Nuclear Generation Co. and Entergy 

Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-08-2, 67 NRC 31, 33 

(2008) (denying petition for review of Board order granting summary disposition of one 

of two admitted contentions). Similarly, a deferral of action on, or denial of, a motion 

for summary disposition does not fall within the bounds of the 10 C.F.R. § 2.311 

(formerly § 2.714a) exception to the prohibition on interlocutory appeals and may not 

be appealed. Pacific Gas & Electric Co. (Stanislaus Nuclear Project, Unit 1), 

ALAB-400, 5 NRC 1175 (1977). See also Section 3.5. 
APPEALS 44 JUNE 2011 

5.8.5 Procedural Irregularities 

Absent extraordinary circumstances, alleged procedural irregularities will not be 

reviewed unless an appeal has been taken by a party whose rights may have been 

substantially affected by such irregularities. Boston Edison Co. (Pilgrim Nuclear Power 

Station, Unit 1), ALAB-231, 8 AEC 633, 634 (1974). In general, the Commission is 

very hesitant to disturb procedural case management decisions made by the Board. 

Louisiana Energy Services, L.P., CLI-04-35, 60 NRC 619, 629 (2004); Entergy Nuclear 

Vermont Yankee, LLC and Energy Nuclear Operations, Inc. (Vermont Yankee Nuclear 

Power Station), CLI-10-17, 71 NRC __ (July 8, 2010) (slip op. at 58). See also

Section 3.1.4 (discussing Licensing Board prejudice, bias, and disqualification). 

5.8.6 Matters of Recurring Importance 

There is some indication that a matter of recurring procedural importance may be 

appealed in a particular case even though it may no longer be determinative in that 

case. However, if it is of insufficient general importance (for instance, whether existing 

guidelines concerning cross-examination were properly applied in an individual case), 

interlocutory review will be refused. Public Service Co. of Indiana (Marble Hill Nuclear 

Generating Station, Units 1 & 2), ALAB-461, 7 NRC 313, 316 (1978). 

5.8.7 Advisory Decisions on Trial Rulings 

Advisory decisions on trial rulings which resulted in no discernible injury ordinarily will 

not be considered on appeal. Toledo Edison Co. (Davis-Besse Nuclear Power 

Station), ALAB-157, 6 AEC 858 (1973). 

Where a Board ruling on an issue has no present practical significance, and very likely 

will have no future practical significance, the Commission will hold an appeal from the 

ruling on that issue in abeyance rather than engaging in the “academic exercise” of 

reviewing it right away. U.S. Dept. of Energy (High Level Waste Repository), 

CLI-04-32, 60 NRC 469, 473 (2004); U.S. Department of Energy (High-Level Waste 

Repository), CLI-08-21, 68 NRC 351, 353 (2008) (reaffirming the policy that the 

Commission disfavors issuing advisory opinions where there is no actual dispute, 

merely an anticipated dispute). 

5.8.8 Order on Pre-LWA Activities 

A Licensing Board order on the issue of whether offsite activity can be undertaken prior 

to the issuance of an LWA or a construction permit is immediately appealable as of 

right. Kansas Gas & Electric Co. (Wolf Creek Nuclear Generating Station, Unit 1), 

ALAB-331, 3 NRC 771, 774 (1976). 

5.8.9 Partial Initial Decisions 

Partial initial decisions which do not yet authorize construction activities still may be 

significant and, therefore, immediately appealable. Duke Power Co. (Perkins Nuclear 

Station, Units 1, 2, & 3), ALAB-597, 11 NRC 870, 871 (1980); Houston Lighting & Power 

Co. (Allens Creek Nuclear Generating Station, Units 1 & 2), ALAB-301, 2 NRC 853, 854 

(1975). 
JUNE 2011 APPEALS 45 

For the purposes of appeal, partial initial decisions which decide a major segment of a 

case, or terminate a party’s right to participate, are final Licensing Board actions on the 

issues decided. Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), 

LBP-83-25, 17 NRC 681, 684 (1983). See Boston Edison Co. (Pilgrim Nuclear Power 

Station, Unit 2), ALAB-632, 13 NRC 91, 93 n.2 (1981). The Commission’s regulations in 

10 C.F.R. § 2.341(b)(1) allow for petitions for review of full or partial initial decisions. See

Entergy Nuclear Vermont Yankee, LLC and Energy Nuclear Operations, Inc. (Vermont 

Yankee Nuclear Power Station), CLI-10-17, 71 NRC __ (July 8, 2010) (slip op. at 10). A 

partial initial decision is a decision rendered after an evidentiary hearing on one or more 

contentions, but that does not dispose of the entire matter. A grant of summary 

disposition on a particular contention is not a partial initial decision. Entergy Nuclear 

Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), 

CLI-08-2, 67 NRC 31, 34 (2008). 

In the interest of efficiency, all rulings that deal with the subject matter of the hearing from 

which a partial initial decision ensues should be reviewed by the Commission at the same 

time. Therefore, the time to ask the Commission’s review of any claim that could have 

affected the outcome of a partial initial decision, including bases that were not admitted or 

that were dismissed prior to the hearing, is immediately after the partial initial decision is 

issued. The parties should assert any claims of error that relate to the subject matter of 

the partial initial decision, whether the specific issue was admitted for the hearing or not, 

and without regard to whether the issue was originally designated a separate “contention” 

or a “basis” for a contention. Private Fuel Storage, L.L.C. (Independent Spent Fuel 

Storage Installation), CLI-00-24, 52 NRC 351, 353 (2000). 

5.8.10 Other Licensing Actions 

When a Licensing Board, during the course of an operating license hearing, grants a 

Part 70 license to transport and store fuel assemblies, the decision is not interlocutory 

and is immediately appealable as of right. Pacific Gas & Electric Co. (Diablo Canyon 

Nuclear Power Plant, Units 1 & 2), CLI-76-1, 3 NRC 73, 74 (1976). 

When a Licensing Board's ruling removes any possible adjudicatory impediments to 

the issuance of a Part 70 license, the ruling is immediately appealable. Philadelphia 

Electric Co. (Limerick Generating Station, Units 1 & 2), ALAB-778, 20 NRC 42, 45 n.1 

(1984), citing Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), 

ALAB-765, 19 NRC 645, 648 n.1 (1984). See Public Service Co. of New Hampshire 

(Seabrook Station, Units 1 & 2), ALAB-854, 24 NRC 783, 787 (1986) (a Licensing 

Board’s dismissal by summary disposition of an intervenor’s contention dealing with 

fuel loading and precriticality testing may be challenged in connection with the 

intervenor’s challenge of the order authorizing issuance of the license). 

5.8.11 Evidentiary Rulings 

While all evidentiary rulings are ultimately subject to appeal at the end of the 

proceeding, not all such rulings are worthy of appeal. Some procedural and 

evidentiary errors almost invariably occur in lengthy hearings where the presiding 

officer must rule quickly. Only serious errors affecting substantial rights and which 

might have improperly influenced the outcome of the hearing merit exception and 
APPEALS 46 JUNE 2011 

briefing on appeal. Northern Indiana Public Service Co. (Bailly Generating Station, 

Nuclear-1), ALAB-204, 7 AEC 835, 836 (1974). 

Evidentiary exclusions must affect a substantial right, and the substance of the 

evidence must be made known by way of an offer of proof or be otherwise apparent, 

before the exclusions can be considered errors. Southern California Edison Co. (San 

Onofre Nuclear Generating Station, Units 2 & 3), ALAB-673, 15 NRC 688, 697-98 n.14 

(1982). 

For a discussion of the procedure necessary to preserve evidentiary rulings for appeal, 

see Section 3.12.4. 

5.8.12 Authorization of Construction Permit 

A decision authorizing issuance of a construction permit may be suspended. Union 

Electric Co. (Callaway Plant, Units 1 & 2), ALAB-348, 4 NRC 225 (1976). Immediate 

revocation or suspension of a construction permit, upon review of the issuance thereof, 

is appropriate if there are deficiencies that: 

(a) pose a hazard during construction; 

(b) need to be corrected before further construction takes place; 

(c) are incorrectable; or 

(d) might result in significant environmental harm if construction is permitted to 

continue. 

Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 & 3), 

ALAB-268, 1 NRC 383, 401 (1975). 

Whether a public utility commission’s consent is required before construction contracts 

can be entered into and carried out is a question of state law. If the state authorities 

want to suspend construction pending the results of the public utility commission’s 

review, it is their prerogative. But the construction permit will not be suspended on the 

“strength of nothing more than potentiality of action adverse to the facility being taken 

by another agency” (citation omitted). Cleveland Electric Illuminating Co. (Perry 

Nuclear Power Plant, Units 1 & 2), ALAB-443, 6 NRC 741, 748 (1977). 

5.8.13 Certification of Gaseous Diffusion Plants 

To be eligible to petition for review of a Director’s decision on the certification of a 

gaseous diffusion plant, an interested party must have either submitted written 

comments in response to a prior Federal Register notice or provided oral comments at 

an NRC meeting held on the application or compliance plan. 10 C.F.R. § 76.62(c). 

U.S. Enrichment Corp., CLI-96-12, 44 NRC 231, 233-34, 236 (1996). 

Individuals who wish to petition for review of an initial Director’s decision must explain 

how their “interest may be affected.” 10 C.F.R. § 76.62(c). For guidance, petitioners 

may look to the Commission’s adjudicatory decisions on standing. U.S. Enrichment 

Corp., CLI-96-12, 44 NRC 231, 234-36 (1996). 
JUNE 2011 APPEALS 47 

5.9 Perfecting Appeals

Normally, review is not taken of specific rulings (e.g., rulings with respect to contentions) 

in the absence of a properly perfected appeal by the injured party. Washington Public 

Power Supply System (Nuclear Projects 1 & 4), ALAB-265, 1 NRC 374 n.1 (1975); 

Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-242, 

8 AEC 847, 848-849 (1974). 

While the Commission does not require the same precision in the filings of laymen that is 

demanded of lawyers, any party wishing to challenge some particular Licensing Board 

action must at least identify the order in question, indicate that he is seeking review of it, 

and give some reason why he thinks it is erroneous. Detroit Edison Co. (Enrico Fermi 

Atomic Power Plant, Unit 2), ALAB-469, 7 NRC 470, 471 (1978). 

5.9.1 General Requirements for Petition for Review of an Initial Decision 

The general requirements for petitions for review from an initial decision are set out in 

10 C.F.R. § 2.341 (formerly § 2.786). Section 2.341(b) (formerly Section 2.786(b)) 

provides that such a petition is to be filed within fifteen (15) days after service of the 

initial decision. 

5.10 Briefs on Appeal

5.10.1 Importance of Brief 

The filing of a brief in support of a § 2.311 (formerly § 2.714a) appeal is mandatory. 

The Commission upon taking review, pursuant to § 2.341 (formerly § 2.786), may order 

the filing of appropriate briefs. See 10 C.F.R. § 2.341(c) (formerly § 2.786(d)). 

Failure to file a brief has resulted in dismissal of the entire appeal, even when the 

appellant was acting pro se. Mississippi Power & Light Co. (Grand Gulf Nuclear 

Station, Units 1 & 2), ALAB-140, 6 AEC 575 (1973); Philadelphia Electric Co. (Limerick 

Generating Station, Units 1 & 2), ALAB-836, 23 NRC 479, 485 n.2 (1986); Florida 

Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-91-5, 

33 NRC 238, 240-41 (1991); Georgia Power Co. (Vogtle Electric Generating Plant, 

Units 1 & 2), CLI-92-3, 35 NRC 63, 66-67 (1992); see also Consumers Power Co.

(Midland Plant, Units 1 & 2), ALAB-270, 1 NRC 473 (1975). Commission appellate 

practice has long stressed the importance of a brief. A mere recitation of an 

appellant’s prior positions in a proceeding or a statement of his or her general 

disagreement with a decision’s result is no substitute for a brief that identifies and 

explains the errors of the Licensing Board in the order below. Texas Utilities Electric 

Co. (Comanche Peak Steam Electric Station, Unit 2), CLI-93-10, 37 NRC 192, 198 

(1993). 

Intervenors have a responsibility to structure their participation so that it is meaningful 

and alerts the agency to the intervenors’ position and contentions. Public Service 

Electric & Gas Co. (Salem Nuclear Generating Station, Unit 1), ALAB-650, 14 NRC 43, 

50, citing Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense 

Council, Inc., 435 U.S. 519, 553 (1978). Even parties who participate in NRC licensing 

proceedings pro se have an obligation to familiarize themselves with proper briefing 

format and with the Commission’s Rules of Practice. Salem, 14 NRC at 50 n.7. See 
APPEALS 48 JUNE 2011 

Public Service Co. of New Hampshire (Seabrook Station, Unit 1), CLI-91-14, 

34 NRC 261, 266 (1991); Georgia Power Co. (Vogtle Electric Generating Plant, 

Units 1 & 2), CLI-92-3, 35 NRC 63, 66 (1992). 

When an intervenor is represented by counsel, there should be no need, and there is 

no requirement, to piece together or to restructure vague references in the intervenor’s 

brief in order to make intervenor’s arguments for it. Wisconsin Electric Power Co.

(Point Beach Nuclear Plant, Unit 1), ALAB-696, 16 NRC 1245, 1255 (1982), citing 

Public Service Electric and Gas Co. (Salem Nuclear Generating Station, Unit 1), 

ALAB-650, 14 NRC 43, 51 (1981), aff’d sub nom. Township of Lower Alloways Creek 

v. Public Service Electric & Gas Co., 687 F.2d 732 (3rd Cir. 1982). Therefore, those 

aspects of an appeal not addressed by the supporting brief may be disregarded. 

Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1), ALAB-696, 

16 NRC 1245, 1255 (1982), citing Pennsylvania Power and Light Co. (Susquehanna 

Steam Electric Station, Unit 1 & 2), ALAB-693, 16 NRC 952 (1982); Consumers Power 

Co. (Midland Plant, Units 1 & 2), ALAB-270, 1 NRC 473 (1975); Northern Indiana 

Public Service Co. (Bailly Generating Station, Nuclear-1), ALAB-207, 7 AEC 957 

(1974). 

5.10.2 Time for Submittal of Brief 

10 C.F.R. § 2.311(a) (formerly § 2.714a(a)) requires the filing of a notice of appeal and 

a supporting brief within ten (10) days after service of a Licensing Board order wholly 

denying a petition for leave to intervene. See Public Service Co. of New Hampshire

(Seabrook Station, Unit 1), CLI-91-14, 34 NRC 261, 265 (1991). 

If the Commission grants review pursuant to 10 C.F.R. § 2.341 (formerly § 2.786) and 

seeks additional briefs from the parties, it will issue an order setting the schedule for 

the filing of any further briefs. See 10 C.F.R. § 2.341(c) (formerly § 2.786(d)). 

The Commission may consider an untimely appeal if the appellant can show good 

cause for failure to file on time. Public Service Co. of New Hampshire (Seabrook 

Station, Unit 1), CLI-91-14, 34 NRC 261, 265-66 (1991). 

The time limits imposed for filing briefs refer to the date upon which the appeal was 

actually filed and not to when the appeal was originally due to be filed prior to a time 

extension. Kansas Gas & Electric Co. (Wolf Creek Generating Station, Unit 1), 

ALAB-424, 6 NRC 122, 125 (1977). 

It is not necessary for a party to bring to the adjudicator’s attention the fact that its 

adversary has not met prescribed time limits. Nor as a general rule will any useful 

purpose be served by filing a motion seeking to have an appeal dismissed because the 

appellant’s brief was a few days late; the mailing of a brief on a Sunday or Monday 

which was due for filing the prior Friday does not constitute substantial noncompliance 

which would warrant dismissal, absent unique circumstances. Kansas Gas & Electric 

Co. (Wolf Creek Generating Station, Unit 1), ALAB-424, 6 NRC 122, 125 (1977). 

In the event of some late arising unforeseen development, a party may tender a 

document belatedly. As a rule, such a filing must be accompanied by a motion for 

leave to file out-of-time which satisfactorily explains not only the reasons for the 

lateness, but also why a motion for a time extension could not have been seasonably 
JUNE 2011 APPEALS 49 

submitted, irrespective of the extent of the lateness. Apparently, however, the written 

explanation for the tardiness may be waived if, at a later date, the Board and parties 

are provided with an explanation which the Board finds to be satisfactory. Kansas Gas 

& Electric Co. (Wolf Creek Generating Station, Unit 1), ALAB-424, 6 NRC 122, 125-26 

(1977). 

If service of appellant’s brief is made by mail, and the responsive brief is to be filed 

within a certain period after service of the appellant’s brief, add three days to the time 

period for filing unless the proceeding was noticed before October 15, 2007. 

10 C.F.R. § 2.306 (formerly § 2.710); 72 Fed. Reg. 49,139 (Aug. 28, 2007) (final rule 

implementing the Commission’s e-filing requirements). 

5.10.2.1 Time Extensions for Brief 

Motions to extend the time for briefing are not favored. In any event, such motions 

should be filed in such a manner as to reach the Commission at least one day 

before the period sought to be extended expires. Louisiana Power & Light Co.

(Waterford Steam Electric Station, Unit 3), ALAB-117, 6 AEC 261 (1973); Boston 

Edison Co. (Pilgrim Nuclear Station), ALAB-74, 5 AEC 308 (1972). An extension of 

briefing time which results in the rescheduling of an already calendared oral 

argument will not be granted absent extraordinary circumstances. Maine Yankee 

Atomic Power Co. (Maine Yankee Atomic Power Station), ALAB-144, 6 AEC 628 

(1973). 

If unable to meet the deadline for filing a brief in support of its appeal of a Licensing 

Board’s decision, a party is duty-bound to seek an extension of time sufficiently in 

advance of the deadline to enable a seasonable response to the application. 

Virginia Electric and Power Company (North Anna Nuclear Power Station, 

Units 1 & 2), ALAB-568, 10 NRC 554, 555 (1979). 

In the event of some late arising unforeseen development, a party may tender a 

document belatedly. As a rule, such a filing must be accompanied by a motion for 

leave to file out-of-time which satisfactorily explains not only the reasons for the 

lateness, but also why a motion for a time extension could not have been 

seasonably submitted, irrespective of the extent of the lateness. Apparently, 

however, the written explanation for the tardiness may be waived if, at a later date, 

the Board and parties are provided with an explanation which the Board finds to be 

satisfactory. Kansas Gas & Electric Co. (Wolf Creek Generating Station, Unit 1), 

ALAB-424, 6 NRC 122, 125-26 (1977). 

5.10.2.2 Supplementary or Reply Briefs 

A supplementary brief will not be accepted unless requested or accompanied by a 

motion for leave to file which sets forth reasons for the out-of-time filing. Consumers 

Power Co. (Midland Plant, Units 1 & 2), ALAB-115, 6 AEC 257 (1973). 

Material tendered by a party without leave to do so, after an appeal has been 

submitted for decision, constitutes improper supplemental argument. Consumers 

Power Co. (Big Rock Point Nuclear Plant), ALAB-636, 13 NRC 312, 321-22 (1981). 

See also Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), 

CLI-08-28, 68 NRC 658, n.74 (2008) (stating that a letter and affidavit to the 
APPEALS 50 JUNE 2011 

Chairman from the petitioner was an unauthorized attempt by the petition to bolster 

its argument and therefore was not part of the record). 

10 C.F.R. § 2.311 (formerly § 2.714a) does not authorize an appellant to file a brief 

in reply to parties’ briefs in opposition to the appeal. Rather, leave to file a reply 

brief must be obtained. See Nuclear Engineering Co. (Sheffield, Ill. Low-Level 

Waste Disposal Site), ALAB-473, 7 NRC 737, 745 n.9 (1978). 

A permitted reply to an answer should only reply to opposing briefs and not raise 

new matters. Houston Lighting & Power Co. (Allens Creek Nuclear Generating 

Station, Unit 1), ALAB-582, 11 NRC 239, 243 n.9 (1980). The Commission 

disapproves of parties presenting their main arguments in reply briefs rather than 

initial briefs because it deprives the other parties of an opportunity to directly 

respond to those arguments. Duke Energy Corp. (Catawba Nuclear Station, 

Units 1 & 2), CLI-05-14, 61 NRC 359, 361-62 n.7 (2005). 

5.10.3 Contents of Brief 

Any brief which in form or content is not in substantial compliance with appropriate 

briefing format may be stricken either on motion of a party or on the Commission’s own 

motion. For example, an appendix to a reply brief containing a lengthy legal argument 

will be stricken when the appendix is simply an attempt to exceed the page limitations. 

Toledo Edison Co. and Cleveland Electric Illuminating Co. (Davis-Besse Nuclear 

Power Station, Units 1, 2, & 3; Perry Nuclear Power Plant, Units 1 & 2), ALAB-430, 

6 NRC 457 (1977). 

An issue which is not addressed in an appellate brief is considered to be waived, even 

though the issue may have been raised before the Licensing Board. International 

Uranium (USA) Corp. (White Mesa Uranium Mill), CLI-01-21, 54 NRC 247, 253 (2001); 

Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), ALAB-828, 23 

NRC 13, 20 n.18 (1986). 

The brief must contain sufficient information and argument to allow the appellate 

tribunal to make an intelligent disposition of the issue raised on appeal. Duke Power 

Co. (Catawba Nuclear Station, Units 1 & 2), ALAB-355, 4 NRC 397 (1976); Carolina 

Power & Light Co. and North Carolina Eastern Municipal Power Agency (Shearon 

Harris Nuclear Power Plant), ALAB-843, 24 NRC 200, 204 (1986); Florida Power & 

Light Co. (St. Lucie Nuclear Power Plant, Unit 1), ALAB-921, 30 NRC 177, 181 (1989). 

See General Public Utilities Nuclear Corp. (Three Mile Island Nuclear Station, Unit 2), 

ALAB-926, 31 NRC 1, 9 (1990). A brief which does not contain such information is 

tantamount to an abandonment of the issue. Consumers Power Co. (Midland Plant, 

Units 1 & 2), ALAB-270, 1 NRC 473 (1975); Houston Lighting & Power Co. (South 

Texas Project, Units 1 & 2), ALAB-799, 21 NRC 360, 381 n.88 (1985); Cleveland 

Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), ALAB-802, 21 NRC 

490, 496 n.30 (1985); Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), ALAB813, 22 NRC 59, 66 n.16 (1985); Carolina Power and Light Co. and North Carolina 

Eastern Municipal Power Agency (Shearon Harris Nuclear Power Plant), ALAB-837, 23 

NRC 525, 533-34 (1986); Carolina Power and Light Co. and North Carolina Eastern 

Municipal Power Agency (Shearon Harris Nuclear Power Plant), ALAB-852, 24 NRC 

532, 537 (1986); Carolina Power and Light Co. and North Carolina Eastern Municipal 

Power Agency (Shearon Harris Nuclear Power Plant), ALAB-856, 24 NRC 802, 805 
JUNE 2011 APPEALS 51 

(1986); Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 1), 

ALAB-868, 25 NRC 912, 924 n.42 (1987); General Public Utilities Nuclear Corp. (Three 

Mile Island Nuclear Station, Unit 2), ALAB-926, 31 NRC 1, 9 (1990). See also

Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 & 2), ALAB-793, 20 

NRC 1591, 1619 (1984). 

At a minimum, briefs must identify the particular error addressed and the precise 

portions of the record relied upon in support of the assertion of error. Wisconsin 

Electric Power Co. (Point Beach Nuclear Plant, Units 1 & 2), ALAB-739, 18 NRC 335, 

338 n.4 (1983); Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1), 

ALAB-696, 16 NRC 1245, 1255 (1982) and Public Service Electric & Gas Co. (Salem 

Nuclear Generating Station, Unit 1), ALAB-650, 14 NRC 43, 49-50 (1981), aff’d sub 

nom. Township of Lower Alloways Creek v. Public Service Electric & Gas Co., 687 

F.2d 732 (3d Cir. 1982); Carolina Power & Light Co. and North Carolina Eastern 

Municipal Power Agency (Shearon Harris Nuclear Power Plant), ALAB-837, 23 NRC 

525, 533 (1986); Carolina Power & Light Co. and North Carolina Eastern Municipal 

Power Agency (Shearon Harris Nuclear Power Plant), ALAB-852, 24 NRC 532, 537 

(1986). This is particularly true where the Licensing Board rendered its rulings from the 

bench and did not issue a detailed written opinion. Philadelphia Electric Co. (Limerick 

Generating Station, Units 1 & 2), ALAB-819, 22 NRC 681, 702-03 n.27 (1985). 

A brief must clearly identify the errors of fact or law that are the subject of the appeal 

and specify the precise portion of the record relied on in support of the assertion of 

error. Public Service Electric & Gas Co. (Salem Nuclear Generating Station, Unit 1), 

ALAB-650, 14 NRC 43 (1981); Duke Power Co. (Catawba Nuclear Station, 

Units 1 & 2), ALAB-813, 22 NRC 59, 66 n.16 (1985); Duke Power Co. (Catawba 

Nuclear Station, Units 1 & 2), ALAB-825, 22 NRC 785, 793 (1985); Carolina Power & 

Light Co. and North Carolina Eastern Municipal Power Agency (Shearon Harris 

Nuclear Power Plant), ALAB-837, 23 NRC 525, 542-543 n.58 (1986); Carolina Power & 

Light Co. and North Carolina Eastern Municipal Power Agency (Shearon Harris 

Nuclear Power Plant), ALAB-843, 24 NRC 200, 204 (1986); Carolina Power & Light 

Co. and North Carolina Eastern Municipal Power Agency (Shearon Harris Nuclear 

Power Plant), ALAB-856, 24 NRC 802, 809 (1986); Pacific Gas & Electric Co. (Diablo 

Canyon Nuclear Power Plant, Units 1 & 2), ALAB-880, 26 NRC 449, 464 (1987), 

remanded on other grounds, Sierra Club v. NRC, 862 F.2d 222 (9th Cir. 1988); 

General Public Utilities Nuclear Corp. (Three Mile Island Nuclear Station, Unit 2), 

ALAB-926, 31 NRC 1, 9 (1990); Commonwealth Edison Co. (Zion Station, Units 1 & 2), 

ALAB-616, 12 NRC 419, 424 (1980). 

Claims of error that are without substance or are inadequately briefed will not be 

considered on appeal. Duke Power Co. (William B. McGuire Nuclear Station, 

Units 1 & 2), ALAB-669, 15 NRC 453, 481 (1982); Public Service Electric and Gas Co.

(Salem Nuclear Generating Station, Unit 1), ALAB-650, 14 NRC 43, 49-50 (1981). See

Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), ALAB-863, 25 

NRC 273, 280 (1987); Georgia Power Co. (Alvin W. Vogtle Electric Generating Plant, 

Units 1 & 2), ALAB-872, 26 NRC 127, 132 (1987); Florida Power & Light Co. (Turkey 

Point Nuclear Generating Plant, Units 3 & 4), ALAB-950, 33 NRC 492, 499 (1991). 

Issues which are inadequately briefed are deemed to be waived. General Public 

Utilities Nuclear Corp. (Three Mile Island Nuclear Station, Unit 2), ALAB-926, 31 NRC 

1, 10, 12 (1990). Bald allegations made on appeal of supposedly erroneous Licensing 

Board evidentiary rulings are properly dismissed for inadequate briefing. Houston 
APPEALS 52 JUNE 2011 

Lighting & Power Co. (South Texas Project, Units 1 & 2), ALAB-799, 21 NRC 360, 378 

(1985). 

The appellant bears the responsibility of clearly identifying the asserted errors in the 

decision on appeal and ensuring that its brief contains sufficient information and cogent 

argument to alert the other parties and the Commission to the precise nature of and 

support for the appellant’s claims. Advanced Medical Systems, Inc. (One Factory Row, 

Geneva, Ohio 44041), CLI-94-6, 39 NRC 285 (1994), aff’d, Advanced Medical 

Systems, Inc. v. NRC, 61 F.3d 903 (6th Cir. 1995) (Table). 

An appeal may be dismissed when an inadequate brief makes its arguments 

impossible to resolve. Pennsylvania Power & Light Co. and Allegheny Electric 

Cooperative, Inc. (Susquehanna Steam Electric Station, Units 1 & 2), ALAB-693, 

16 NRC 952, 956 (1982), citing Public Service Co. of Oklahoma (Black Fox Station, 

Units 1 & 2), ALAB-573, 10 NRC 775, 787 (1979); Duke Power Co. (Catawba Nuclear 

Station, Units 1 & 2), ALAB-355, 4 NRC 397, 413 (1976). See Carolina Power & Light 

Co. and North Carolina Eastern Municipal Power Agency (Shearon Harris Nuclear 

Power Plant), ALAB-843, 24 NRC 200, 204 (1986). 

A brief that merely indicates reliance on previously filed proposed findings, without 

meaningful argument addressing the Licensing Board’s disposition of issues, is of little 

value in appellate review. Union Electric Co. (Callaway Plant, Unit 1), ALAB-740, 

18 NRC 343, 348 n.7 (1983), citing Public Service Electric & Gas Co. (Salem Nuclear 

Generating Station, Unit 1), ALAB-650, 14 NRC 43, 50 (1981), aff’d sub nom.

Township of Lower Alloways Creek v. Public Service Electric and Gas Co., 687 F.2d 

732 (3d Cir. 1982); Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), ALAB813, 22 NRC 59, 71 (1985), Carolina Power & Light Co. and North Carolina Eastern 

Municipal Power Agency (Shearon Harris Nuclear Power Plant), ALAB-837, 23 NRC 

525, 533 (1986); Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 

1 & 2), ALAB-841, 24 NRC 64, 69 (1986); Carolina Power & Light Co. and North 

Carolina Eastern Municipal Power Agency (Shearon Harris Nuclear Power Plant), 

ALAB-852, 24 NRC 532, 547 n.74 (1986). See Georgia Power Co. (Alvin W. Vogtle 

Electric Generating Plant, Units 1 & 2), ALAB-872, 26 NRC 127, 131 (1987); Public 

Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-947, 33 NRC 

299, 322 (1991). 

Lay representatives generally are not held to the same standard for appellate briefs 

that is expected of lawyers. Pennsylvania Power & Light Co. (Susquehanna Steam 

Electric Station, Units 1 & 2), ALAB-693, 16 NRC 952, 956 (1982), citing Public Service 

Electric & Gas Co. (Salem Nuclear Generating Station, Unit 1), ALAB-650, 14 NRC 43, 

50 n.7 (1981); General Public Utilities Nuclear Corp. (Three Mile Island Nuclear 

Station, Unit 2), ALAB-926, 31 NRC 1, 10 (1990). See Florida Power & Light Co. (St. 

Lucie Nuclear Power Plant, Unit 1), ALAB-921, 30 NRC 177, 181 (1989). Nonetheless, 

litigants appearing pro se or through lay representatives are in no way relieved by that 

status of any obligation to familiarize themselves with the Commission’s rules. To the 

contrary, all individuals and organizations electing to become parties to NRC licensing 

proceedings can fairly be expected both to obtain access to a copy of the rules and 

refer to it as the occasion arises. Pennsylvania Power & Light Co. (Susquehanna 

Steam Electric Station, Units 1 & 2), ALAB-693, 16 NRC 952, 956 (1982), citing

Pennsylvania Power & Light Co. (Susquehanna Steam Electric Station, Units 1 & 2), 

ALAB-563, 10 NRC 449, 450 n.1 (1979). See Georgia Power Co. (Vogtle Electric 
JUNE 2011 APPEALS 53 

Generating Plant, Units 1 & 2), CLI-92-3, 35 NRC 63, 66 (1992). All parties appearing 

in NRC proceedings, whether represented by counsel or a lay representative, have an 

affirmative obligation to avoid any false coloring of the facts. Carolina Power & Light 

Co. and North Carolina Eastern Municipal Power Agency (Shearon Harris Nuclear 

Power Plant), ALAB-837, 23 NRC 525, 531 n.6 (1986). 

A party’s brief must (1) specify the precise portion of the record relied upon in support 

of the assertion of error, and (2) relate to matters raised in the party’s proposed 

findings of fact and conclusions of law. Arguments raised for the first time on appeal, 

absent a serious, substantive issue, are not ordinarily entertained on appeal. 

Pennsylvania Power & Light Co. (Susquehanna Steam Electric Station, Units 1 & 2), 

ALAB-693, 16 NRC 952, 955-56, 956 n.6 (1982), citing Public Service Electric & Gas 

Co. (Salem Nuclear Generating Station, Unit 1), ALAB-650, 14 NRC 43, 49 (1981); 

Tennessee Valley Authority (Hartsville Nuclear Plant, Units 1A, 2A, 1B, & 2B), 

ALAB-463, 7 NRC 341, 348 (1978); Consumers Power Co. (Midland Plant, 

Units 1 & 2), ALAB-691, 16 NRC 897, 906-907 (1982). 

All factual assertions in the brief must be supported by references to specific portions 

of the record. Consolidated Edison Co. (Indian Point Nuclear Generating Unit 2), 

ALAB-159, 6 AEC 1001 (1973); Carolina Power & Light Co. and North Carolina 

Eastern Municipal Power Agency (Shearon Harris Nuclear Power Plant), ALAB-843, 

24 NRC 200, 211 (1986). All references to the record should appear in the appellate 

brief itself; it is inappropriate to incorporate into the brief by reference a document 

purporting to furnish the requisite citations. Kansas Gas & Electric Company (Wolf 

Creek Generating Plant, Unit 1), ALAB-424, 6 NRC 122, 127 (1977). 

Licensing Boards and the Commission should not be expected to consider items never 

provided on the record. Therefore it is incumbent upon the parties to ensure that 

documents and other evidence referenced in their briefs be available in the case 

record. Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim 

Nuclear Power Station), CLI-10-11, 71 NRC __ (March 26, 2010) (slip op. at 25 n.97). 

Documents appended to an appellate brief will be stricken where they constitute an 

unauthorized attempt to supplement the record. However, if the documents were 

newly discovered evidence and tended to show that significant testimony in the record 

was false, there may be a sufficient basis to grant a motion to reopen the hearing. 

Toledo Edison Co. and Cleveland Electric Illuminating Co. (Davis-Besse Nuclear 

Power Station, Units 1, 2 & 3;Perry Nuclear Power Plant, Units 1 & 2), ALAB-430, 

6 NRC 451 (1977); Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), 

ALAB-819, 22 NRC 681, 720 n.51 (1985), citing Puerto Rico Electric Power Authority 

(North Coast Nuclear Plant, Unit 1), ALAB-648, 14 NRC 34, 36 (1981). 

Personal attacks on opposing counsel are not to be made in appellate briefs, Northern 

Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), ALAB-204, 

7 AEC 835, 837-838 (1974), and briefs which carry out personal attacks in an abrasive 

manner upon Licensing Board members will be stricken. Louisiana Power & Light Co.

(Waterford Steam Electric Station, Unit 3), ALAB-121, 6 AEC 319 (1973). 

Established page limitations may not be exceeded without leave and may not be 

circumvented by use of “appendices” to the brief. Toledo Edison Co. and Cleveland 
APPEALS 54 JUNE 2011 

Electric Illuminating Co. (Davis-Besse Nuclear Power Station, Units 1, 2 & 3), 

ALAB-430, 6 NRC 457 (1977). 

A request for enlargement of the page limitation on a showing of good cause should be 

filed at least seven (7) days before the date on which the brief is due. Long Island 

Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-827, 23 NRC 9, 11 n.3 

(1986). 

5.10.3.1 Opposing Briefs 

Briefs in opposition to the appeal should concentrate on the appellant’s brief. See 

Illinois Power Co. (Clinton Power Station, Units 1 & 2), ALAB-340, 4 NRC 27, 

52 n.39 (1976). 

5.10.3.2 Amicus Curiae Briefs 

Amicus curiae briefs are limited to the matters already at issue in the proceeding. 

“[A]n amicus curiae necessarily takes the proceeding as it finds it. An amicus curiae

can neither inject new issues into a proceeding nor alter the content of the record 

developed by the parties.” Public Service Co. of New Hampshire (Seabrook Station, 

Units 1 & 2), ALAB-862, 25 NRC 144, 150 (1987) (footnote omitted); Louisiana 

Energy Services (Claiborne Enrichment Center), CLI-97-4, 45 NRC 95, 96 (1997). 

Our rules contemplate amicus curiae briefs only after the Commission grants a 

petition for review, and do not provide for amicus briefs supporting or opposing 

petitions for review. Louisiana Energy Services (Claiborne Enrichment Center), 

CLI 97-7, 45 NRC 437, 438-39 (1997). See also Section 5.2.1 for discussion of 

procedures for and timing of amicus briefs. 

5.11 Oral Argument

The Commission, in its discretion, may allow oral argument upon the request of a party 

made in a notice of appeal or brief, or upon its own initiative. 10 C.F.R. § 2.343 (formerly 

§ 2.763). The Commission will deny a request for oral argument where it determines that, 

based on the written record, it understands the positions of the participants and has 

sufficient information upon which to base its decision. Texas Utilities Electric Co.

(Comanche Peak Steam Electric Station, Units 1 & 2), CLI-92-12, 36 NRC 62, 68-69 

(1992); Virginia Electric and Power Co. d/b/a Dominion Virginia Power and Old Dominion 

Electric Coop. (North Anna Power Station, Unit 3), LBP-08-23, 68 NRC 679, 683 (2008). 

The Commission requires that a party seeking oral argument must explain how oral 

argument would assist it in reaching a decision. Texas Utilities Electric Co. (Comanche 

Peak Steam Electric Station, Unit 2), CLI-93-2, 37 NRC 55, 59 n.4 (1993); Texas Utilities 

Electric Co. (Comanche Peak Steam Electric Station, Units 1 & 2), CLI-92-12, 36 NRC 62, 

68-69 (1992); In re Joseph J. Macktal, CLI-89-12, 30 NRC 19, 23 n.1 (1989). 

A late intervention petitioner may request oral argument on its petition. Texas Utilities 

Electric Co. (Comanche Peak Steam Electric Station, Units 1 & 2), CLI-92-12, 36 NRC 62, 

69 n.4 (1992). 
JUNE 2011 APPEALS 55 

All parties are expected to be present or represented at oral argument unless specifically 

excused by the Board. Such attendance is one of the responsibilities of all parties when 

they participate in Commission adjudicatory proceedings. Wisconsin Electric Power Co. 

(Point Beach Nuclear Plant, Units 1 & 2), ALAB-666, 15 NRC 277, 279 (1982). 

5.11.1 Failure to Appear for Oral Argument 

If for sufficient reason a party cannot attend an oral argument, it should request that the 

appeal be submitted on briefs. Any such request, however, must be adequately 

supported. A bare declaration of inadequate financial resources is clearly deficient. 

Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Units 1 & 2), ALAB-666, 

15 NRC 277, 279 (1982). 

Failure to advise of an intent not to appear at oral argument already calendared is 

discourteous and unprofessional and may result in dismissal. Tennessee Valley 

Authority (Hartsville Nuclear Plant, Units 1A, 2A, 1B & 2B), ALAB-337, 4 NRC 7 (1976). 

5.11.2 Grounds for Postponement of Oral Argument 

Postponement of an already calendared oral argument for conflict reasons will be 

granted only upon a motion setting out: 

(1) the date the conflict developed; 

(2) the efforts made to resolve it; 

(3) the availability of alternate counsel; 

(4) public and private interest considerations; 

(5) the positions of the other parties; 

(6) the proposed alternate date. 

Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 & 3), 

ALAB-165, 6 AEC 1145 (1973). 

A party’s inadequate resources to attend oral argument, properly substantiated, may 

justify dispensing with oral argument. Wisconsin Electric Power Co. (Point Beach 

Nuclear Plant, Units 1 & 2), ALAB-666, 15 NRC 277, 279 (1982). 

5.11.3 Oral Argument by Non-Parties 

Under 10 C.F.R. § 2.315(d) (formerly § 2.715(d)), a person who is not a party to a 

proceeding may be permitted to present oral argument to the Commission. A motion to 

participate in the oral argument must be filed and non-party participation is at the 

discretion of the Commission. 

5.12 Interlocutory Review

5.12.1 Interlocutory Review Disfavored 

With the exception of an appeal by a petitioner from a total denial of its petition to 

intervene or an appeal by another party on the question whether the petition should 

have been wholly denied (10 C.F.R. § 2.311 (formerly § 2.714a)), there is no right to 

appeal any interlocutory ruling by a Licensing Board. 10 C.F.R. § 2.323(f) (formerly 
APPEALS 56 JUNE 2011 

§ 2.730(f)); Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power 

Station), ALAB-876, 26 NRC 277, 280 (1987). See Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), CLI-91-3, 33 NRC 76, 80 (1991); Long 

Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-91-4, 33 NRC 233, 

235-36 (1991); Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating 

Units 2 & 3), CLI-08-7, 67 NRC 187 (2008). As the Commission’s procedural rules 

grant no right of appeal from interlocutory orders, an “appeal” from such an order will 

be treated as a petition for discretionary interlocutory review under 

10 C.F.R. § 2.341(f). Pa’ina Hawaii, LLC, CLI-06-18, 64 NRC 1, 4 (2006). 

Interlocutory appellate review of Licensing Board orders is disfavored and will be 

undertaken as a discretionary matter only in the most extraordinary circumstances. 

Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), 

CLI-09-6, 69 NRC 128, 133-37 (2009). See also Sequoyah Fuels Corp. and General 

Atomics (Gore, OK, site), CLI-94-11, 40 NRC 55, 59 (1994); Private Fuel Storage, 

L.L.C. (Independent Spent Fuel Storage Facility), CLI-98-7, 47 NRC 307 (1998); 

Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), CLI-00-11, 51 NRC 

297 (2000). 

New Hampshire (Seabrook Station, Units 1 & 2), ALAB-731, 17 NRC 1073, 1074-75 

(1983); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-787, 

20 NRC 1097, 1100 (1984); Pa’ina Hawaii, LLC, CLI-06-18, 64 NRC 1, 4 n.10 (2006) 

(citing Seabrook, ALAB-731, 17 NRC at 1074). 

Thus, for example, a Licensing Board’s rulings limiting contentions or discovery or 

requiring consolidation are interlocutory and generally are not immediately appealable, 

though such rulings may be reviewed later by deferring appeals on them until the end 

of the case. Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, 

Units 1 & 2), ALAB-339, 4 NRC 20 (1976). See also Houston Lighting and Power Co.

(South Texas Project, Units 1 & 2), ALAB-637, 13 NRC 367 (1981); Duke Power Co.

(Catawba Nuclear Station, Units 1 & 2), ALAB-768, 19 NRC 988, 992 (1984); Public 

Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-906, 28 NRC 

615, 618 (1988) (a Licensing Board denied a motion to add new bases to a previously 

admitted contention). Similarly, interlocutory appeals from Licensing Board rulings 

made during the course of a proceeding, such as the denial of a motion to dismiss the 

proceeding, are forbidden. Duke Power Co. (Perkins Nuclear Station, Units 1, 2 & 3), 

ALAB-433, 6 NRC 469 (1977); Duke Energy Corp. (Catawba Nuclear Station, Units 1 & 

2), CLI-04-6, 59 NRC 62, 70 (2004). 

The Commission avoids piecemeal interference in ongoing Licensing Board 

proceedings and typically denies petitions to review interlocutory board orders 

summarily, without engaging in extensive merits discussion. Duke Cogema Stone & 

Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), CLI-02-7, 55 NRC 

205, 213 (2002); Exelon Generation Co., LLC (Early Site Permit for the Clinton ESP 

Site), CLI-04-31, 60 NRC 461, 465-66 (2004); Entergy Nuclear Generation Co. and 

Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-08-2, 

67 NRC31, 33-34 (2008) (stating that rejection of a particular contention on summary 

disposition does not justify Commission review under 10 C.F.R. § 2.341(f)(2)). The 

Commission’s regulations establish a high bar for interlocutory review. Entergy 

Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Vermont Yankee 

Nuclear Power Station), CLI-07-1, 65 NRC 1, 3 (2007). 
JUNE 2011 APPEALS 57 

Commission practice generally disfavors interlocutory review, but recognizes an 

exception in 10 C.F.R. § 2.341(f)(2) (formerly § 2.786(g)) where the disputed ruling 

threatens the aggrieved party with serious, immediate and irreparable harm where it 

will have a “pervasive or unusual” effect on the proceedings below. Private Fuel 

Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-02-8, 55 NRC 222, 

224 (2002); Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), 

CLI-01-1, 53 NRC 1, 5 (2001); Private Fuel Storage, L.L.C. (Independent Spent Fuel 

Storage Installation), CLI-00-2, 51 NRC 77 (2000); Sacramento Utility District (Rancho 

Seco Nuclear Generating Station), CLI-94-2, 39 NRC 91, 93 (1994); Amergen Energy 

Company, LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 

119 (2006). 

The question whether to hold an NRC enforcement proceeding in abeyance pending a 

related criminal prosecution is generally suitable for interlocutory review because, 

unlike most interlocutory questions, the abeyance issue cannot await the end of the 

proceeding (it becomes moot). David Geisen, CLI-06-19, 64 NRC 9, 11 (2006) (citing, 

e.g., Andrew Siemaszko, CLI-06-12, 63 NRC 495, 500 (2006); Oncology Servs. Corp., 

CLI-93-13, 37 NRC 419, 420-21 (1993)). 

Although Commission practice generally disfavors interlocutory review, the 

Commission has the power to modify procedural rules on a case-by-case basis and, in 

the interest of efficiency, can modify rules about interlocutory appeal. Private Fuel 

Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-03-16, 58 NRC 360, 

360-361 (2003). 

Absent a demonstration of irreparable harm or other compelling circumstances, the fact 

that legal error may have occurred does not of itself justify interlocutory appellate 

review in the teeth of the longstanding Commission policy generally disfavoring such 

review. Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), 

ALAB-734, 18 NRC 11, 15 (1983); Georgia Power Co. (Vogtle Electric Generating 

Plant, Units 1 & 2), CLI-94-15, 40 NRC 319 (1994); Entergy Nuclear Generation Co. 

and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-08-2, 

67 NRC 31, 35 (2008). See 10 C.F.R. § 2.323(f) (formerly § 2.730(f)). 

“The threat of future widespread harm to the general population of NRC Licensees is 

not a factor in interlocutory review, although it might encourage the Commission to 

review the final decision.” Connecticut Yankee Atomic Power Co. (Haddam Neck 

Plant), CLI-01-25, 54 NRC 368, 373 (2001). See 10 C.F.R. § 2.341 (formerly § 2.786). 

The Commission disapproves of the practice of simultaneously seeking reconsideration 

of a Presiding Officer’s decision and filing an appeal of the same ruling because that 

approach would require both trial and appellate tribunals to rule on the same issues at 

the same time. International Uranium (USA) Corp. (White Mesa Uranium Mill), 

CLI-97-9, 46 NRC 23, 24 (1997), citing Houston Lighting & Power Co. (Allens Creek 

Nuclear Generating Station, Unit 1), ALAB-630, 13 NRC 84, 85 (1981). See also 

Hydro Resources, Inc., CLI-98-8, 47 NRC 314 (1998). 

Lack of participation below will increase the movant’s already heavy burden of 

demonstrating that such review is necessary. Public Service Co. of New Hampshire

(Seabrook Station, Units 1 & 2), ALAB-737, 18 NRC 168, 175-76 (1983). 
APPEALS 58 JUNE 2011 

In a licensing proceeding, it is the order granting or denying a license that is ordinarily a 

final order. NRC orders that are given “immediate effect” constitute an exception to the 

general rule. City of Benton v. NRC, 136 F.3d 824 (D.C. Cir. 1998). 

Incorrect interlocutory rulings may be reviewed, if necessary, on appeals from partial 

initial decisions or other final appealable orders. Private Fuel Storage, L.L.C.

(Independent Spent Fuel Storage Installation), CLI-01-1, 53 NRC 1, 5 (2001), citing

Private Fuel Storage, L.L.C., CLI-00-2, 51 NRC at 80. 

While the Commission does not ordinarily review interlocutory orders denying 

extensions of time, it may do so in specific cases as an exercise of its general 

supervisory jurisdiction over agency adjudications. Hydro Resources, Inc., CLI-99-3, 

49 NRC 25, 26 (1999). See also Duke Energy Corp. (Catawba Nuclear Station, Units 

1 & 2), CLI-04-21, 60 NRC 21, 27 (2004) (interlocutory challenge regarding expert 

witness qualifications in a security context); Exelon Generation Co., LLC, (Early Site 

Permit for the Clinton ESP Site), CLI-04-31, 60 NRC 461, 466 (2004). 

Licensing Board rulings denying waiver requests pursuant to 10 C.F.R. § 2.335 

(formerly § 2.758), which are interlocutory, are not considered final for the purposes of 

appeal. Louisiana Energy Services (Claiborne Enrichment Center), CLI-95-7, 41 NRC 

383, 384 (1995). 

5.12.2 Criteria for Interlocutory Review 

Although interlocutory review is disfavored and generally is not allowed as of right 

under NRC Rules of Practice, the criteria in § 2.341(f) (formerly §2.786(g)(1)&(2)) 

reflect the limited circumstances in which interlocutory review may be appropriate in a 

proceeding. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage 

Installation), CLI-00-13, 52 NRC 23 (2000); Private Fuel Storage, L.L.C. (Independent 

Spent Fuel Storage Facility), CLI-98-7, 47 NRC 307, 310 (1998); Hydro Resources,

Inc., CLI-98-22, 48 NRC 215, 216-17 (1998); Sacramento Municipal Utility District

(Rancho Seco Nuclear Generating Station), CLI-94-2, 39 NRC 91, 93 (1994). Safety 

Light Corp. (Bloomsburg Site Decontamination), CLI-92-9, 35 NRC 156, 158 (1992), 

clarified Oncology Services Corp., CLI-93-13, 37 NRC 419, 420-21 (1993). 

The Commission may also grant interlocutory review as an exercise of its inherent 

supervisory authority over ongoing adjudicatory proceedings. Duke Energy Corp.

(Catawba Nuclear Station, Units 1 & 2), CLI-04-6, 59 NRC 62, 70 (2004). 

Current practice under § 2.341(f) (formerly § 2.786(g)) is rooted in the practice 

developed by the former Appeal Board in recognizing certain exceptions to the 

proscription against interlocutory review. See Safety Light Corp. (Bloomsburg Site 

Decontamination), CLI-92-9, 35 NRC 156, 158 (1992); Procedures for Direct 

Commission Review of Decisions of Presiding Officers, 56 Fed. Reg. 29,403 

(June 27, 1991). For decisions of the Appeal Board on interlocutory review, see South 

Carolina Electric & Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-663, 

14 NRC1140 (1981); Houston Lighting & Power Co. (Allens Creek Nuclear Generating 

Station, Unit 1), ALAB-635, 13 NRC 309, 310 (1981); Pennsylvania Power & Light Co. 

and Allegheny Electric Cooperative, Inc. (Susquehanna Steam Electric Station, Units 1 

& 2), ALAB-593, 11 NRC 761 (1980); United States Dep’t of Energy, Project 
JUNE 2011 APPEALS 59 

Management Corp., Tennessee Valley Authority (Clinch River Breeder Reactor Plant), 

ALAB-688, 16 NRC 471, 474, 475 (1982), citing Public Service Electric & Gas Co. 

(Salem Nuclear Generating Station, Unit 1), ALAB-588, 11 NRC 533, 536 (1980); 

Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-737, 18 

NRC 168, 171 (1983); Public Service Co. of New Hampshire (Seabrook Station, Units 

1 & 2), ALAB-858, 25 NRC 17, 20-21 (1987); Long Island Lighting Co. (Shoreham 

Nuclear Power Station, Unit 1), ALAB-861, 25 NRC 129, 134 (1987); Advanced 

Medical Systems, ALAB-929, 31 NRC 271, 278-79 (1990). 

Discretionary interlocutory review will be granted if the Licensing Board’s action either 

(1) threatens the party adversely affected with immediate and serious irreparable harm 

that could not be remedied by a later appeal or (2) affects the basic structure of the 

proceeding in a pervasive or unusual manner. 10 C.F.R. § 2.341(f) (formerly 

§ 2.786(1) & (2)). See Long Island Lighting Co. (Shoreham Nuclear Power Station, 

Unit 1), CLI-91-3, 33 NRC 76, 80 (1991); Long Island Lighting Co. (Shoreham Nuclear 

Power Station, Unit 1), CLI-91-4, 33 NRC 233, 236 (1991); Georgia Power Company

(Vogtle Electric Generating Plant, Units 1 & 2) CLI-94-15, 40 NRC319 (1994); 

Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), CLI94-2, 39 NRC 91, 93 (1994); Hydro Resources, Inc., CLI-99-7, 49 NRC230, 231 

(1999); Hydro Resources, Inc., CLI-99-8, 49 NRC 311, 312 (1999); Hydro Resources, 

Inc., CLI-99-18, 49 NRC 411, 431 (1999); Private Fuel Storage, L.L.C. (Independent 

Spent Fuel Storage Installation), CLI-00-2, 51 NRC77 (2000); Private Fuel Storage, 

L.L.C. (Independent Spent Fuel Storage Installation), CLI-01-1, 53 NRC 1, 5 (2001). 

For Appeal Board decisions on this point, see Houston Lighting & Power Co. (Allens 

Creek Nuclear Generating Station, Unit 1), ALAB-635, 13 NRC 309, 310 (1981); Public 

Service Electric & Gas Co. (Salem Nuclear Generating Station, Unit 1), ALAB-588, 11 

NRC 533, 536 (1980); Public Service Co. of Indiana (Marble Hill Nuclear Generating 

Station, Units 1 & 2), ALAB-405, 5 NRC 1190, 1192 (1977); Cleveland Electric 

Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), ALAB-675, 15 NRC 

1105,1110,1113-14 (1982); Cleveland Electric Illuminating Co. (Perry Nuclear Power 

Plant, Units 1 & 2), ALAB-706, 16 NRC 1754, 1756 (1982); Public Service Co. of New 

Hampshire (Seabrook Station, Units 1 & 2), ALAB-762, 19 NRC 565, 568 (1984); 

Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-791, 20 

NRC 1579, 1582 (1984); Cleveland Electric Illuminating Co. (Perry Nuclear Power 

Plant, Units 1 & 2), ALAB-805, 21 NRC 596, 599 n.12 (1985); Public Service Co. of 

New Hampshire (Seabrook Station, Units 1 & 2), ALAB-838, 23 NRC 585, 592 (1986); 

Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-839, 

24 NRC 45, 49-50 (1986); Long Island Lighting Co. (Shoreham Nuclear Power Station, 

Unit 1), ALAB-861, 25 NRC 129, 134 (1987); Public Service Co. of New Hampshire

(Seabrook Station, Units 1 & 2), ALAB-864, 25 NRC 417, 420 (1987); Texas Utilities 

Electric Co. (Comanche Peak Steam Electric Station, Units 1 & 2), ALAB-870, 26 NRC 

71, 73 (1987); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), 

ALAB-888, 27 NRC 257, 261 (1988); Public Service Co. of New Hampshire (Seabrook 

Station, Units 1 & 2), ALAB-889, 27 NRC 265, 269 (1988); Public Service Co. of New 

Hampshire (Seabrook Station, Units 1 & 2), ALAB-896, 28 NRC 27, 31 (1988); Public 

Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-916, 29 NRC 

434, 437 (1989); Safety Light Corp. (Bloomsburg Site Decontamination), ALAB-931, 31 

NRC 350, 360-62 (1990); Duke Energy Corp. (Catawba Nuclear Station, Units 1 & 2), 

CLI-04-6, 59 NRC 62, 70 (2004). 
APPEALS 60 JUNE 2011 

The Commission additionally has discretion under § 2.341(f)(1) to grant interlocutory 

review where the Board has either referred a ruling, or certified a question, which 

raises significant and novel legal or policy issues. Absent a referral or certification by 

the Board, however, the Commission will generally not consider taking interlocutory 

appeals under this standard, even if the Commission itself views the issue as 

significant or novel. Exelon Generation Co., LLC (Early Site Permit for the Clinton ESP 

Site), CLI-04-31, 60 NRC 461, 466-68 (2004). 

Though the Commission’s procedural rules at 10 C.F.R. 2.311(c) allow an applicant to 

file an interlocutory appeal of Board orders admitting contentions, the appeal must 

challenge the admissibility of all admitted contentions. Hydro Resources, Inc., 

CLI-06-14, 63 NRC 510, 508-509 (2006). 

Where the applicant did not show that the intervenor’s request for a hearing should 

have been denied in its entirety, remaining points of error would have to meet the 

Commission’s standard for interlocutory review; that is, appellant must show that it will 

suffer serious immediate and irreparable harm or that the adverse ruling will have a 

pervasive and unusual effect on the hearing below. Sequoyah Fuels Corp. (Gore, 

Oklahoma, Site Decommissioning), CLI-01-2, 53 NRC 2, 18 (2001). 

The Commission encourages Licensing Boards and presiding officers to refer rulings to 

the Commission which present novel questions which could benefit from early 

resolution. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), 

CLI-00-13, 52 NRC 23, 29 (2000) (citing Statement of Policy on Conduct of 

Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 23 (1988)). 

Satisfaction of one of the criteria in 10 C.F.R. § 2.341(b)(4) (formerly § 2.786(b)(4)) is 

not mandatory in order to obtain interlocutory review. When reviewing interlocutory 

matters on the merits, the Commission may consider the criteria set forth in 

10 C.F.R. § 2.341(b)(4) (formerly § 2.786(b)(4)). However, it is the standards listed in 

10 C.F.R. § 2.341(f) (formerly § 2.786(g)) that control the Commission’s determination 

of whether to undertake such review. Oncology Services Corp., CLI-93-13, 

37 NRC419 (1993); Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage 

Facility), CLI-98-7, 47 NRC 307, 310 (1998); Hydro Resources, Inc., CLI-98-8, 47 NRC 

314, 320 (1998); Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage 

Installation), CLI-01-1, 53 NRC 1, 5 (2001). 

Discovery rulings rarely meet the test for discretionary interlocutory review. Long 

Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-780, 20 NRC378, 

381 (1984). See Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, 

Units 1 & 2), ALAB-870, 26 NRC 71, 74 (1987); Long Island Lighting Co. (Jamesport 

Nuclear Power Station, Units 1 & 2), ALAB-318, 3 NRC 186 (1976). This is true even 

of orders rejecting objections to discovery on grounds of privilege. Consumers Power 

Co. (Midland Plant, Units 1 & 2), ALAB-634, 13 NRC 96 (1981); Toledo Edison Co.

(Davis-Besse Nuclear Power Station, Unit 1), ALAB-300, 2 NRC 752, 769 (1975). In 

this vein, the Appeal Board refused to review a discovery ruling referred to it by a 

Licensing Board where the Board below did not explain why it believed Appeal Board 

involvement was necessary, where the losing party had not indicated that it was unduly 

burdened by the ruling, and where the ruling was not novel. Consumers Power Co.

(Midland Plant, Units 1 & 2), ALAB-438, 6 NRC 638 (1977). The aggrieved party must 

make a strong showing that the impact of the discovery order upon that party or upon 
JUNE 2011 APPEALS 61 

the public interest is indeed “unusual.” Consumers Power Co. (Midland Plant, Units 1 

& 2), ALAB-634, 13 NRC 96 (1981). 

Similarly, rulings on the admissibility of evidence rarely meet the standards for 

interlocutory review. Toledo Edison Co. (Davis-Besse Nuclear Power Station, Unit 1), 

ALAB-314, 3 NRC 98 (1976); Power Authority of the State of New York (Green County 

Nuclear Power Plant), ALAB-439, 6 NRC 640 (1977); Pacific Gas & Electric Co.

(Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-504, 8 NRC 406, 410 (1978); 

Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), 

ALAB-630, 13 NRC 84 (1981). In fact, the Appeal Board was generally disinclined to 

direct certification on rulings involving “garden-variety” evidentiary matters. See Long 

Island Lighting Co. (Jamesport Nuclear Power Station, Units 1 & 2), ALAB-353, 4 NRC 

381 (1976). In Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, 

Units 1 & 2), ALAB-393, 5 NRC 767, 768 (1977), the Appeal Board reiterated that it 

would not allow consideration of interlocutory evidentiary rulings, stating that, “it is 

simply not our role to monitor these matters on a day-to-day basis; were we to do so, 

‘we would have little time for anything else’” (citation omitted). While the Board may 

reasonably accommodate pro se petitioners, those petitioners must meet the basic 

requirements of contention admissibility. The Board may not fill in missing support but 

must deny unsupported contentions. PPL Susquehanna, LLC (Susquehanna Steam 

Electric Station, Units 1 & 2), LBP-07-4, 65 NRC 281, 339 n.286 (2007). Interlocutory 

review is rarely appropriate where the question for which certification has been sought 

involves the scheduling of hearings or the timing and admissibility of evidence. United 

States Dep’t of Energy, Project Management Corp., Tennessee Valley Authority

(Clinch River Breeder Reactor Plant), ALAB-688, 16 NRC 471, 475 (1982), citing

Toledo Edison Co. and Cleveland Electric Illuminating Co. (Davis-Besse Nuclear 

Power Station, Unit 1), ALAB-314, 3 NRC 98, 99-100 (1976). 

The Commission has granted interlocutory review in situations where the question or 

order must be reviewed “now or not at all.” Hydro Resources, Inc., CLI-98-8, 47 NRC 

314, 321 (1998). The Commission does not ordinarily review Board orders denying 

extensions of time. However, the Commission may review such interlocutory orders 

pursuant to its general supervisory jurisdiction over agency adjudications. Baltimore 

Gas & Electric Company (Calvert Cliffs Nuclear Power Plant, Units 1 & 2), CLI-98-19, 

48 NRC 132, 134 (1998). 

When considering whether to exercise “pendent” discretionary review over otherwise 

nonappealable issues, the Commission will favor review where the otherwise 

unappealable issues are “inextricably intertwined” with appealable issues, such that 

consideration of all issues is necessary to ensure meaningful review. Sequoyah Fuels 

Corp. (Gore, OK, site decommissioning), CLI-01-2, 53 NRC 2, 19 (2001). When the 

Commission considers whether to exercise “pendent” discretionary review over 

otherwise nonappealable issues, factors weighing against review include a lack of an 

adequate record; the possibility that the issue could be altered or mooted by further 

proceedings below; and whether complex issues considered under pendent review 

would predominate over relatively insignificant, but final and appealable, issues. Id. at 

19-20; Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), 

CLI-08-27, 68 NRC 655, 657 (2008). 

Interlocutory review of a Licensing Board’s ruling denying summary disposition of a 

part of a contention, claimed to be an unwarranted expansion of the scope of issues 
APPEALS 62 JUNE 2011 

resulting in the necessity to try these issues and cause unnecessary expense and 

delay meets neither standard for interlocutory review. That case is no different than 

that involved any time a litigant must go to hearing. Pennsylvania Power & Light Co. 

and Allegheny Electric Cooperative, Inc. (Susquehanna Steam Electric Station, 

Units 1 & 2), ALAB-641, 13 NRC 550 (1981); Public Service Co. of New Hampshire 

(Seabrook Station, Units 1 & 2), ALAB-737, 18 NRC 168, 176 n.12 (1983). 

Even though the criteria for discretionary interlocutory review have not been satisfied, 

the Commission may still accept a Licensing Board’s referral of an interlocutory ruling 

where the ruling involves a question of law, has generic implications, and has not been 

addressed previously on appeal. Oncology Services Corporation, CLI-93-13, 

37 NRC419 (1993); see Advanced Medical Systems (One Factory Row, Geneva, Ohio 

44041), ALAB-929, 31 NRC 271, 279 (1990). However, interlocutory review will not be 

granted unless the Licensing Board below had a reasonable opportunity to consider 

the question as to which review is sought. Toledo Edison Co. (Davis-Besse Nuclear 

Power Station), ALAB-297, 2 NRC 727, 729 (1975). See also Project Management 

Corp. (Clinch River Breeder Reactor Plant), ALAB-330, 3 NRC 613, 618-619, rev’d in 

part sub nom. USERDA (Clinch River Breeder Reactor Plant), CLI-76-13, 4 NRC 67 

(1976). 

Neither the presiding officer’s inappropriate admission of an area of concern, nor the 

use of an inappropriate legal standard, meets the standard for interlocutory review in a 

Subpart L proceeding. Sequoyah Fuels Corp. (Gore, OK, site decommissioning), CLI01-2, 53 NRC 2, 18-19 (2001), citing Pennsylvania Power and Light Co. (Susquehanna 

Steam Electric Station, Units 1 & 2), ALAB-641, 13 NRC 550 (1981). 

When interlocutory review is granted of one Licensing Board order, it may also be 

conducted of a second Licensing Board order which is based on the first order. Safety 

Light Corp. (Bloomsburg Site Decontamination), ALAB-931, 31 NRC 350, 362 (1990). 

5.12.2.1 Irreparable Harm 

To meet the criterion in § 2.341(f)(2)(i) (formerly § 2.786(g)), petitioners must 

demonstrate that the ruling if left in place will result in irreparable impact which, as a 

practical matter, cannot be alleviated by Commission review at the end of the 

proceeding. The following cases illustrate the extraordinary circumstances that 

must be present to warrant review pursuant to the first criterion: 

Immediate review may be appropriate in exceptional circumstances, when the 

potential difficulty of later unscrambling and remedying the effects of an improper 

disclosure of privileged material would likely result in an irreparable impact. Georgia 

Power Co., et al. (Vogtle Electric Generating Plant, Units 1 & 2), CLI-95-15, 42 NRC 

181, 184 (1995) (Commission reviewed Board order to release notes claimed to be 

attorney-client work product); Public Service Co. of New Hampshire (Seabrook 

Station, Units 1 & 2), ALAB-839, 24 NRC 45, 50, 51 (1986) (A Licensing Board’s 

denial of an intervenor’s motion to correct the official transcript of a prehearing 

conference was granted where there were doubts that the transcript could be 

corrected at the end of the hearing. Without a complete and accurate transcript, the 

intervenor would suffer serious and irreparable injury because its ability to challenge 

the Licensing Board’s rulings through an appeal would be compromised). 
JUNE 2011 APPEALS 63 

For purposes of interlocutory review, irreparable harm does not qualify as immediate 

merely because it is likely to occur before completion of the hearing. Hydro 

Resources, Inc., CLI-98-8, 47 NRC 314 (1998). 

While it may not always be dispositive, one factor favoring review is that the 

question or order for which review is sought is one which “must be reviewed now or 

not at all.” Georgia Power Co., et al. (Vogtle Electric Generating Plant, Units 1 & 2), 

CLI-94-5, 39 NRC 190, 193 (1994) (interlocutory Commission review warranted 

where Board ordered immediate release of an NRC Investigatory Report); see 

Oncology Services Corp., CLI-93-13, 37 NRC 419, 420-21 (1993) (interlocutory 

Commission review warranted where Board imposed 120-day stay of a licensesuspension proceeding); see also Kansas Gas & Electric Co. (Wolf Creek Nuclear 

Generating Station, Unit 1), ALAB-327, 3 NRC 408, 413 (1976), cited in Houston 

Lighting and Power Co. (South Texas Project, Units 1 & 2), ALAB-639, 13 NRC 469, 

473 (1981). 

 

The question whether to hold an NRC enforcement proceeding in abeyance pending 

a related criminal prosecution is generally suitable for interlocutory review because, 

unlike most interlocutory questions, the abeyance issue cannot await the end of the 

proceeding (it becomes moot). David Geisen, CLI-06-19, 64 NRC 9, 11 (2006) 

(citing, e.g., Andrew Siemaszko, CLI-06-12, 63 NRC 495, 500 (2006); Oncology 

Servs. Corp., CLI-93-13, 37 NRC 419, 420-21 (1993)). 

There is no irreparable harm arising from a party’s continued involvement in a 

proceeding until the Licensing Board can resolve factual questions pertinent to the 

Commission’s jurisdiction. Sequoyah Fuels Corp. and General Atomics (Gore, OK, 

site), CLI-94-11, 40 NRC 55, 62 (1994). Nor is there obvious irreparable harm from 

continuation of the proceeding. The mere commitment of resources to a hearing 

that may later turn out to have been unnecessary does not justify interlocutory 

review of a Licensing Board scheduling order. Sequoyah Fuels Corp. and General 

Atomics (Gore, OK, site), CLI-94-9, 40 NRC 1, 6-7 (1994); Public Service Co. of 

New Hampshire (Seabrook Station, Units 1 & 2), ALAB-858, 25 NRC 17, 21-22 

(1987). A mere increase in the burden of litigation does not constitute serious and 

irreparable harm. Connecticut Yankee Atomic Power Co. (Haddam Neck Plant), 

CLI-01-25, 54 NRC 368, 374 (2001). In the absence of a potential for truly 

exceptional delay or expense, the risk that a Licensing Board’s interlocutory ruling 

may eventually be found to have been erroneous, and that because of the error 

further proceedings may have to be held, is one which must be assumed by that 

Board and the parties to the proceeding. Duke Power Co. (Catawba Nuclear 

Station, Units 1 & 2), ALAB-768, 19 NRC 988, 992 (1984), citing Commonwealth 

Edison Co. (Zion Station, Units 1 & 2), ALAB-116, 6 AEC 258, 259 (1973); 

Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), ALAB805, 21 NRC 596, 600 (1985); Exelon Generation Co., LLC (Early Site Permit for 

the Clinton ESP Site), CLI-04-31, 60 NRC 461, 466 (2004). 

Mere generalized representations by counsel or unsubstantiated assertions 

regarding “immediate and serious irreparable impact” are insufficient to meet the 

stringent threshold for interlocutory review. Sequoyah Fuels Corp. and General 

Atomics (Gore, OK, site), CLI-94-11, 40 NRC 55, 61 (1994); Clinton ESP, 

CLI-04-31, 60 NRC at 467. 
APPEALS 64 JUNE 2011 

A license applicant’s request for Commission review of the Staff’s settlement of 

NEPA claims with an intervenor failed to satisfy the criteria for interlocutory review, 

because settling NEPA claims and eliminating the need for the hearing on those 

issues did not constitute “immediate and serous irreparable” harm to the applicant, 

and settling some but not all contentions is a routine feature of NRC litigation and 

does not affect the proceeding in a “pervasive or unusual manner.” Pa’ina Hawaii, 

LLC, CLI-06-18, 64 NRC 1, 4 (2006). 

5.12.2.2 Pervasive and Unusual Effect on the Proceeding 

An interlocutory review is appropriate when the ruling “affects the basic structure of 

the proceeding by mandating duplicative or unnecessary litigating steps.” Private 

Fuel Storage, L.L.C. (Independent Spent Fuel Storage Facility), CLI-98-7, 47 NRC 

307, 310 (1998). 

Review of interlocutory rulings pursuant to the criterion in § 2.341(f)(2)(ii) (formerly 

§ 2.786), i.e., the Board ruling affects the basic structure of the proceeding in a 

pervasive or unusual manner, is granted only in extraordinary circumstances. The 

following cases illustrate this point: 

Although a definitive ruling by the Licensing Board that the Commission actually has 

jurisdiction might rise to the level of a pervasive or unusual effect upon the nature of 

the proceeding, a preliminary ruling that mere factual development is necessary 

does not rise to that level. The fact that an appealed ruling touches on a 

jurisdictional issue does not, in and of itself, mandate interlocutory review. Similarly, 

the mere issuance of a ruling that is important or novel does not, without more, 

change the basic structure of a proceeding and thereby justify interlocutory review. 

Sequoyah Fuels Corp. and General Atomics (Gore, OK, site), CLI-94-11, 

40 NRC 55, 63 (1994); Carolina Power & Light Co. (Shearon Harris Nuclear Power 

Plant), CLI-00-11, 51 NRC 297, 299 (2000). 

A Licensing Board decision refusing to dismiss a party from a proceeding does not, 

without more, constitute a compelling circumstance justifying interlocutory review. 

Sequoyah Fuels Corp. and General Atomics (Gore, OK, site), CLI-94-11, 40 NRC 

55, 59 (1994). 

The mere expansion of issues rarely, if ever, has been found to affect the basic 

structure of a proceeding in a pervasive or unusual manner so as to warrant an 

interlocutory review. Sacramento Municipal Utility District (Rancho Seco Nuclear 

Generating Station), CLI-94-2, 39 NRC 91, 93 (1994); Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), ALAB-888, 27 NRC 257, 262-63 (1988). 

See Safety Light Corp. (Bloomsburg Site Decontamination), CLI-92-9, 35 NRC 156, 

159 (1992). 

A Board order to the Staff to disclose Safeguards Information to a party would result 

in immediate harm if the party lacks sufficient basis to view the information, and so 

interlocutory review of the order is proper. Duke Energy Corp. (Catawba Nuclear 

Station, Units 1 & 2), CLI-04-6, 59 NRC 62, 71 (2004). 

The fact that an interlocutory ruling may be wrong does not per se justify 

interlocutory appellate review, unless it can be demonstrated that the error 
JUNE 2011 APPEALS 65 

fundamentally alters the proceeding. Virginia Electric & Power Co. (North Anna 

Power Station, Units 1& 2), ALAB-741, 18 NRC 371, 378 n.11 ( 1983), citing

Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), 

ALAB-675, 15 NRC 1105, 1113-14 (1982); Public Service Co. of New Hampshire

(Seabrook Station, Units 1 & 2), ALAB-734, 18 NRC 11, 14 n.4 (1983); Sequoyah 

Fuels Corp. and General Atomics (Gore, OK, site), CLI-94-11, 40 NRC 55, 61 

(1994); Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), 

CLI-01-1, 53 NRC 1, 5 (2001); Exelon Generation Co., LLC (Early Site Permit for 

the Clinton ESP Site), CLI-04-31, 60 NRC 461, 467 (2004). 

“A mere legal error is not enough to warrant interlocutory review because 

interlocutory errors are correctable on appeal from final Board decisions.” 

Connecticut Yankee Atomic Power Co. (Haddam Neck Plant), CLI-01-25, 

54 NRC 368, 373 (2001), citing Private Fuel Storage, L.L.C. (Independent Spent 

Fuel Storage Installation), CLI-01-1, 53 NRC 1, 5 (2001); Hydro Resources, Inc., 

CLI-98-8, 47 NRC 314 (1998). A legal error, standing alone, does not alter the 

basic structure of an ongoing proceeding. Such errors can be raised on appeal after 

the final Licensing Board decision. Dr. James E. Bauer (Order Prohibiting 

Involvement in NRC Licensed Activities), CLI-95-3, 41 NRC 245, 246 (1995). 

Similarly, a mere conflict between Licensing Boards on a particular question does 

not mean that interlocutory review as to that question will automatically be granted. 

Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), 

ALAB-371, 5 NRC 409 (1977); Public Service Co. of New Hampshire (Seabrook 

Station, Units 1 & 2), ALAB-271, 1 NRC 478, 484-485 (1975). Unless it is shown 

that the error fundamentally alters the very shape of the ongoing adjudication, 

appellate review must await the issuance of a “final” Licensing Board decision. 

Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), 

ALAB-675, 15 NRC 1105, 1112-13 (1982). See Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), ALAB-888, 27 NRC 257, 263 (1988). 

Interlocutory review is not favored on the question as to whether a contention should 

have been admitted into the proceeding. Private Fuel Storage, L.L.C. (Independent 

Spent Fuel Storage Installation), CLI-01-1, 53 NRC 1, 5 (2001); Private Fuel 

Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-00-2, 51 NRC 

77, 79-80 (2000); Sacramento Municipal Utility District (Rancho Seco Nuclear 

Generating Station), CLI-94-2, 39 NRC 91, 94 (1994), citing Long Island Lighting 

Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-861, 25 NRC 129, 135 

(1987). See also Project Management Corp. (Clinch River Breeder Reactor Plant), 

ALAB-326, 3 NRC 406, reconsid. den., ALAB-330, 3 NRC 613, rev’d in part sub 

nom., USERDA (Clinch River Breeder Reactor Plant), CLI-76-13, 4 NRC 67 (1976); 

Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-838, 

23 NRC 585, 592 (1986); Long Island Lighting Co. (Shoreham Nuclear Power 

Station, Unit 1), ALAB-861, 25 NRC 129, 135 (1987); Cleveland Electric Illuminating 

Co. (Perry Nuclear Power Plant, Units 1 & 2), ALAB-706, 16 NRC 1754, 1756 

(1982), citing Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), ALAB-687, 

16 NRC 460, 464 (1982). Ordinarily appeals of such interlocutory decisions by the 

Board must wait until the case ends. Exelon Generation Co., LLC (Early Site Permit 

for the Clinton ESP Site), CLI-04-31, 60 NRC 461, 467 (2004). A Board’s rejection 

of an interested state’s sole contention is not appropriate for directed certification 

when the issues presented by the state are also raised by the contentions of 
APPEALS 66 JUNE 2011 

intervenors in the proceeding. Public Service Co. of New Hampshire (Seabrook 

Station, Units 1 & 2), ALAB-838, 23 NRC 585, 592-593 (1986). 

The admission by a Licensing Board of more late-filed than timely contentions does 

not, in and of itself, affect the basic structure of a licensing proceeding in a 

pervasive or unusual manner warranting interlocutory review. If the untimely filings 

have been admitted by the Board in accordance with 10 C.F.R. § 2.309 (formerly 

§ 2.714), it cannot be said that the Board’s rulings have affected the case in a 

pervasive or unusual manner. Rather, the Board will have acted in furtherance of 

the Commission’s own rules. Cleveland Electric Illuminating Co. (Perry Nuclear 

Power Plant, Units 1 & 2), ALAB-706, 16 NRC 1754, 1757 (1982). The basic 

structure of an ongoing proceeding is not changed by the simple admission of a 

contention which is based on a Licensing Board ruling that (1) is important or novel 

or (2) may conflict with case law, policy, or Commission regulations. See 

Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-791, 

20 NRC 1579, 1583 (1984); Cleveland Electric Illuminating Co. (Perry Nuclear 

Power Plant, Units 1 & 2), ALAB-675, 15 NRC 1105, 1112-13 (1982). 

Despite the reluctance to grant review of Board orders admitting contentions, in 

exceptional circumstances, limited review has been undertaken. In Commonwealth 

Edison Co. (Braidwood Nuclear Power Station, Units 1& 2), CLI-86-8, 23 NRC 241 

(1986), the Commission reviewed and reversed a Board order admitting a late-filed 

contention; the Appeal Board had declined review of the same ruling, stating that 

the Board’s admission of a contention did not meet the stringent standards for 

interlocutory review. Commonwealth Edison Co. (Braidwood Nuclear Power 

Station, Units 1 & 2), ALAB-817, 22 NRC 470, 474 (1985). In Duke Power Co.

(Catawba Nuclear Station, Units 1 & 2), ALAB-687, 16 NRC 460 (1982), the Appeal 

Board accepted referral of several rulings associated with the Licensing Board’s 

conditional admission of several contentions. The Appeal Board limited its review to 

two questions which it determined to have “generic implications”: (1) whether the 

Rules of Practice sanctioned the admission of contentions that fall short of meeting 

Section 2.309(f) (formerly Section 2.714(b)) specificity requirements; and (2) if not, 

how should a Licensing Board approach late-filed contentions that could not have 

been earlier submitted with the requisite specificity. Duke Power Co. (Catawba 

Nuclear Station, Units 1 & 2), ALAB-687, 16 NRC 460, 464-65 (1982). 

Adverse evidentiary rulings may turn out to have little, if any, evidentiary effect on a 

Licensing Board’s ultimate substantive decision. Therefore, determinations 

regarding what evidence should be admitted rarely, if ever, have a pervasive or 

unusual effect on the structure of a proceeding so as to warrant interlocutory 

intercession. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), 

ALAB-791, 20 NRC 1579, 1583 (1984). 

The Commission itself may exercise its discretion to review a Licensing Board’s 

interlocutory order if the Commission wants to address a novel or important issue. 

Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), CLI-00-11, 

51 NRC 297, 299 (2000). 

An intervenor failed to satisfy the criteria for interlocutory review, because settling 

NEPA claims and eliminating the need for the hearing on those issues did not 

constitute “immediate and serious irreparable” harm to the applicant, and settling 
JUNE 2011 APPEALS 67 

some but not all contentions is a routine feature of NRC litigation and does not affect 

the proceeding in a “pervasive or unusual manner.” Pa’ina Hawaii, LLC, CLI-06-18, 

64 NRC 1, 4 (2006). 

5.12.3 Responses Opposing Interlocutory Review 

Opposition to a petition seeking interlocutory review should include some discussion of 

petitioner’s claim of a Licensing Board error. Virginia Electric & Power Co. (North Anna 

Power Station, Units 1 & 2), ALAB-741, 18 NRC 371, 374 n.3 (1983), citing Public 

Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-734, 18 NRC11, 

14 n.4 (1983). 

Failure of a party to address the standards for interlocutory review in responding to a 

motion seeking such review may be construed as a waiver of any argument regarding 

the propriety of such review. Metropolitan Edison Co. (Three Mile Island Nuclear 

Station, Unit 1), ALAB-791, 20 NRC 1579, 1582 n.7 (1984); see Public Service Co. of 

New Hampshire (Seabrook Station, Units 1 & 2), ALAB-734, 18 NRC 11, 14 n.4 (1983). 

Even issues “raised by the Staff [that] go to the very heart of [the Commission’s] longstanding position that license renewal proceedings should be limited in scope” will not 

suffice to demonstrate a pervasive and unusual effect on the proceedings under 

10 C.F.R. § 2.341(f)(2). Northern States Power Co. (Prairie Island Nuclear Generating 

Plant, Units 1 & 2), CLI 10-27, 72 NRC __ (Sep. 30, 2010) (slip op. at 8). 

5.12.4 Certification of Questions for Interlocutory Review and Referred Rulings 

Although generally precluding interlocutory appeals, 10 C.F.R. §§ 2.319(l) and 2.323(f) 

(formerly §§ 2.718(I) and 2.730(f)) allow the presiding officer to refer a ruling to the 

Commission. See Sequoyah Fuels Corp. and General Atomics (Gore, OK, site 

decontamination and decommissioning funding), CLI-94-12, 40 NRC 64 (1994); Duke 

Energy Corp. (Catawba Nuclear Station, Units 1 & 2), CLI-04-11, 59 NRC 203, 209 

(2004). The Commission need not, however, accept the referral. See Virginia Electric 

& Power Co. (North Anna Power Station, Units 1 & 2), ALAB-741, 18 NRC 371, 375 

n.6 (1983); Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 & 

2), ALAB-817, 22 NRC 470, 475 (1985). The Commission does assign considerable 

weight to the Board’s view of whether the ruling merits immediate review because 

Licensing Boards are granted a great deal of discretion in managing the proceedings of 

cases before them. Connecticut Yankee Atomic Power Co. (Haddam Neck Plant), CLI01-25, 54 NRC 368, 374 (2001). 

Notwithstanding the general proscription against interlocutory review, the Commission 

has encouraged Boards and presiding officers to certify novel legal or policy questions 

early in the proceeding. Statement of Policy on Conduct of Adjudicatory Proceedings, 

CLI-98-12, 48 NRC 18, 23 (1998); Duke Energy Corp. (Catawba Nuclear Station, 

Units 1 & 2), CLI-05-14, 61 NRC 359, 364 n.18 (2005); see 10 C.F.R. §§ 2.323(f) and 

2.319(l) (formerly §§ 2.730(f) and 2.718(i)). In commenting on the Commission’s 

earlier Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 

452, 456 (1981), the Appeal Board opined that the policy statement did not call for a 

marked relaxation of the standard that the discretionary review of interlocutory 

Licensing Board rulings authorized should be undertaken only in the most compelling 

circumstances; rather, the policy statement simply exhorts the Licensing Boards to put 
APPEALS 68 JUNE 2011 

before the appellate tribunal legal or policy questions that, in their judgment, are 

“significant” and require prompt appellate resolution. Virginia Electric & Power Co.

(North Anna Power Station, Units 1 & 2), ALAB-741, 18 NRC 371, 375 (1983); 

Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-791, 

20 NRC 1579, 1583 (1984). 

Generally, the Commission has accepted “novel issues that would benefit from early 

review” where the Board, rather than a party, has found such review necessary and 

helpful. Connecticut Yankee Atomic Power Co. (Haddam Neck Plant), CLI-01-25, 

54 NRC 368, 375 (2001), citing Private Fuel Storage, L.L.C. (Independent Spent Fuel 

Storage Installation), CLI-00-13, 52 NRC 23 (2000). See also Exelon Generation Co., 

LLC (Early Site Permit for the Clinton ESP Site), CLI-04-31, 60 NRC 461, 467 (2004). 

The Commission has the authority to consider a matter even if the party seeking 

interlocutory review has not satisfied the criteria for such review. Hydro Resources, 

Inc., CLI-98-8, 47 NRC 314, 320 n.3 (1998). 

A Licensing Board’s decision to admit a contention which will require the Staff to 

perform further statutory required review does not result in unusual delay or expense 

which justifies referral of the Board’s decision for interlocutory review. Kerr-McGee 

Chemical Corp. (West Chicago Rare Earths Facility), LBP-85-3, 21 NRC 244, 257-258 

n.19 (1985), citing Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), ALAB-687, 

16 NRC 460, 464 (1982), rev’d in part on other grounds, CLI-83-19, 17 NRC 1041 

(1983). 

The fact that an evidentiary ruling involves a matter that may be novel or important 

does not alter the strict standards for directed certification. Metropolitan Edison Co.

(Three Mile Island Nuclear Station, Unit 1), ALAB-791, 20 NRC 1579, 1583 (1984). 

Authority to certify questions to the Commission should be exercised sparingly. Absent 

a compelling reason, certification will be declined. Vermont Yankee Nuclear Power 

Corp. (Vermont Yankee Nuclear Power Station), Public Service Co. of New Hampshire

(Seabrook Station, Units 1 & 2), ALAB-421, 6 NRC 25, 27 (1977); Consolidated Edison 

Co. and Power Authority of the State of N.Y. (Indian Point Nuclear Generating Units 2 

& 3), LBP-82-23, 15 NRC 647, 650 (1982). 

Despite the general prohibition against interlocutory review, the regulations provide that 

a party may ask a Licensing Board to certify a question to the Commission without 

ruling on it. 10 C.F.R. § 2.319(l) (formerly § 2.718(I)). The regulations also allow a 

party to request that a Licensing Board refer a ruling on a motion to the Commission 

under 10 C.F.R. § 2.323(f) (this provision was added to former § 2.730(f)). 

The Boards’ certification authority was not intended to be applied to a mixed question 

of law and fact in which the factual element was predominant. Public Service 

Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-405, 

5 NRC 1190, 1192 (1977). 

It is the Commission’s customary practice to accept Board certifications or referrals. 

Similarly, the NRC’s rules of practice permit interlocutory Commission review of 

referred Board rulings if the referral raises significant and novel legal or policy issues, 

and resolution of the issues would materially advance the orderly disposition of the 
JUNE 2011 APPEALS 69 

proceeding. However, routine rulings on the admissibility of contentions are not usually 

occasions for the Commission to exercise its authority to step into ongoing Licensing 

Board proceedings and undertake interlocutory review. This is especially true when a 

Board hearing on related matters is about to take place. Louisiana Energy Services,

L.P. (National Enrichment Facility), CLI-05-21, 62 NRC 538, 539-40 (2005). 

A party seeking certification under Section 2.319(l) (formerly Section 2.718(i)) must, at 

a minimum, establish that a referral under 10 C.F.R. § 2.323(f) (formerly § 2.730(f)) 

would have been proper – i.e., that a failure to resolve the problem will cause the public 

interest to suffer or will result in unusual delay and expense. Puerto Rico Water 

Resources Authority (North Coast Nuclear Plant, Unit 1), ALAB-361, 4 NRC 625 

(1976); Toledo Edison Co. (Davis Besse Nuclear Power Station), ALAB-300, 2 NRC 

752, 759 (1975); Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 

2), ALAB-271, 1 NRC 478, 483 (1975); Public Service Co. of New Hampshire 

(Seabrook Station, Units 1 & 2), LBP-82-106, 16 NRC 1649, 1652-53 (1982). 

However, the added delay and expense occasioned by the admission of a contention – 

even if erroneous – does not alone distinguish the case so as to warrant interlocutory 

review. Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), 

ALAB-675, 15 NRC 1105, 1114 (1982). The fact that applicants will be unable to 

recoup the time and financial expense needed to litigate late-filed contentions is a 

factor that is present when any contention is admitted and thus does not provide the 

type of unusual delay that warrants interlocutory Appeal Board review. Cleveland 

Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), ALAB-706, 16 NRC 

1754, 1758 n.7 (1982), citing Cleveland Electric Illuminating Co. (Perry Nuclear Power 

Plant, Units 1 & 2), ALAB-675, 15 NRC 1105, 1114 (1982). 

The case law standards governing review of interlocutory orders have been codified in 

10 C.F.R. § 2.341(f) (formerly § 2.786(g)) which provides that the Commission may 

conduct discretionary interlocutory review of a certified question, 10 C.F.R. § 2.319(l) 

(formerly § 2.718(I), or a referred ruling, 10 C.F.R. 2.323(f) (formerly § 2.730(f)), if the 

petitioner shows that the certified question or referred ruling either (1) 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 (2) affects the basic structure of the proceeding in a pervasive 

or unusual manner. Safety Light Corp. (Bloomsburg Site Decontamination), CLI-92-9, 

35 NRC 156, 158 (1992); Sequoyah Fuels Corp. and General Atomics (Gore, 

Oklahoma Site), CLI-94-11, 40 NRC 55, 59 (1994). See Section 5.12.1, “Interlocutory 

Review Disfavored .” 

5.12.4.1 Effect of Subsequent Developments on Motion to Certify 

Developments occurring subsequent to the filing of a request for interlocutory review 

may strip the question brought of an essential ingredient and, therefore, constitute 

grounds for denial of the motion. Northern States Power Co. (Prairie Island Nuclear 

Generating Plant, Units 1 & 2), ALAB-419, 6 NRC 3, 6 (1977). See also Pacific Gas 

& Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-93-18, 

38 NRC 62 (1993). 

When reviewing a motion for directed certification, an Appeal Board would not 

consider events which occurred subsequent to the issuance of the challenged 

Licensing Board ruling. A party which seeks to rely upon such events must first 
APPEALS 70 JUNE 2011 

seek appropriate relief from the Licensing Board. Public Service Co. of New 

Hampshire (Seabrook Station, Units 1 & 2), ALAB-889, 27 NRC 265, 271 (1988). 

5.12.4.2 Effect of Directed Certification on Uncertified Issues 

The pendency of interlocutory review does not automatically result in a stay of 

hearings on independent questions not intimately connected with the issue certified. 

See Public Service Company of Indiana (Marble Hill Nuclear Generating Station, 

Units 1 & 2), ALAB-374, 5 NRC 417 (1977). 

5.12.4.3 Certification of Questions Relating to Restricted Data or National 

Security Information 

A Licensing Board may certify to the Commission for its consideration and 

determination any questions relating to access to Restricted Data or National 

Security Information arising in an adjudicatory context. While the Commission may 

consider matters that arguably touch on the merits in resolving such questions, an 

actual merits decision comes only after development of the record. Duke Energy 

Corp. (Catawba Nuclear Station, Units 1 & 2), CLI-04-37, 60 NRC 646, 649-50 

(2004). 

5.13 Disqualification of a Commissioner

Determinations on the disqualification of a Commissioner reside exclusively in that 

Commissioner and are not reviewable by the Commission. Consolidated Edison Co. and 

Power Authority of the State of N.Y. (Indian Point Nuclear Generating Units 2 & 3), 

CLI-81-1, 13 NRC 1 (1981), clarified, CLI-81-23, 14 NRC 610 (1981); Pacific Gas & 

Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-80-6, 11 NRC 411 

(1980). 

When a party requests the disqualification of more than one Commissioner, each 

Commissioner must decide whether to recuse himself from the proceeding, but the 

Commissioners may issue a joint opinion in response to the motion for disqualification. 

Joseph J. Macktal, CLI-89-18, 30 NRC 167, 169-70 (1989), denying reconsid. of CLI-89-

14, 30 NRC 85 (1989). 

It is Commission practice that the Commissioners who are subject to a recusal motion will 

decide that motion themselves and may do so by issuing a joint decision. Yankee Atomic 

Electric Co. (Yankee Nuclear Power Station), CLI-96-5, 43 NRC 53, 56-57 (1996). 

A prohibited communication is not a concern if it does not reach the ultimate 

decisionmaker. Where a prohibited communication is not incorporated into advice to the 

Commission, never reaches the Commission, and has no impact on the Commission’s 

decision, it provides no grounds for the recusal of Commissioners. Yankee Atomic 

Electric Co. (Yankee Nuclear Power Station), CLI-96-5, 43 NRC 53, 57 (1996). 

Commission guidance does not constitute factual prejudgment where the guidance is 

based on regulatory interpretations, policy judgments, and tentative observations about 

dose estimates that are derived from the public record. Yankee Atomic Electric Co.

(Yankee Nuclear Power Station), CLI-96-5, 43 NRC 53, 58 (1996). 
JUNE 2011 APPEALS 71 

Where there are no facts from which the Commission can reasonably conclude that a 

prohibited communication was made with any corrupt motive or was other than a simple 

mistake, and where a Report of the Office of the Inspector General confirms that an 

innocent mistake was made and that the Staff was not guilty of any actual wrongdoing, 

and where the mistake did not ultimately affect the proceeding, the Commission will not 

dismiss the Staff from the proceeding as a sanction for having made the prohibited 

communication. Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-96-5, 

43 NRC 53, 59 (1996). 

In the absence of bias, an adjudicator who participated on appeal in a construction permit 

proceeding need not disqualify himself from participating as an adjudicator in the 

operating license proceeding for the same facility. Pacific Gas & Electric Co. (Diablo 

Canyon Nuclear Power Plant, Units 1 & 2), CLI-80-11, 11 NRC 511, 512 (1980). 

The expression of tentative conclusions upon the start of a proceeding does not disqualify 

the Commission from again considering the issue on a fuller record. Nuclear Engineering 

Co. (Sheffield, IL, Low-Level Radioactive Waste Disposal Site), CLI-80-1, 11 NRC 1, 4 

(1980). 

5.14 Reconsideration by the Commission (Also see Section 4.5) 

The Commission’s ability to reconsider is inherent in the ability to decide in the first 

instance. The Commission has sixty (60) days in which to reconsider an otherwise final 

decision, which is at the discretion of the Commission. Florida Power & Light Company

(St. Lucie Nuclear Power Plant, Unit 2), CLI-80-41, 12 NRC 650, 652 (1980). 

“Reconsideration petitions must establish an error in a Commission decision, based upon 

an elaboration or refinement of an argument already made, an overlooked controlling 

decision or principle of law, or a factual clarification.” Dominion Nuclear Connecticut, Inc.

(Millstone Nuclear Power Station, Units 2 & 3), CLI-02-1, 55 NRC 1, 2 (2002). The 

Commission does not lightly revisit the Board’s already-issued and well-considered 

decisions and does so only if the party seeking reconsideration brings decisive new 

information to the Commission’s attention or demonstrates a fundamental Commission 

misunderstanding of a key point. Louisiana Energy Services, L.P., CLI-04-35, 60 NRC 

619, 622 (2004); Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage 

Installation), CLI-04-27, 61 NRC 145, 153 (2004). However, if the basis for subsequent 

Commission modification of a Board ruling is not that there was a mistake of law or fact, 

but that the facts have changed, a party should not be characterized (or penalized) as 

having waived its argument by not filing a motion for reconsideration; that is not the type 

of situation where the Commission “reconsiders” its decision. Id. at 154. 

Petitions for reconsideration of Commission decisions denying review will not be 

entertained. 10 C.F.R. § 2.341(d) (formerly § 2.786(e)). A petition for reconsideration 

after review may be filed. 10 C.F.R. § 2.341(d) (formerly § 2.786(e)). Private Fuel 

Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-05-19, 62 NRC 403, 

410 (2005). 

A movant seeking reconsideration of a final decision must do so on the basis of an 

elaboration upon, or refinement of, arguments previously advanced, generally on the 

basis of information not previously available. See Central Electric Power Cooperative, 

Inc. (Virgil C. Summer Nuclear Station, Unit 1), CLI-81-26, 14 NRC 787, 790 (1981); 

Tennessee Valley Authority (Hartsville Nuclear Plant, Units 1A, 2A, 1B & 2B), ALAB-418, 
APPEALS 72 JUNE 2011 

6 NRC 1, 2 (1977). Babcock & Wilcox (Apollo, PA, Fuel Fabrication Facility), LBP-92-35, 

36 NRC 355, 357 (1992). A reconsideration request is not an occasion for advancing an 

entirely new thesis or for simply reiterating arguments previously proffered and rejected. 

See Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3), 

CLI-02-1, 55 NRC 1, 2 (2002); Central Electric Power Cooperative, Inc. (Virgil C. Summer 

Nuclear Station, Unit 1), CLI-81-26, 14 NRC 787, 790 (1981); Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), CLI-88-03, 28 NRC 1, 3-4 (1988); and State of 

Alaska Dept. of Transportation and Public Facilities, CLI-04-38, 60 NRC 652, 655-56 

(2004). 

Petitioners may be granted permission by the Commission to file a consolidated request 

for reconsideration if they have not had full opportunity to address the precise theory on 

which the Commission’s first decision rests. Northern States Power Co. (Monticello 

Nuclear Generating Plant; Prairie Island Nuclear Generating Plant, Units 1 & 2; Prairie 

Island Independent Spent Fuel Storage Installation), CLI-00-14, 52 NRC 37, 51 (2000). 

The Commission has granted reconsideration to clarify the meaning or intent of certain 

language in its earlier decision. Curators of the University of Missouri, CLI-95-8, 41 NRC 

386, 390-91 (1995); Duke Energy Corp. (Catawba Nuclear Station, Units 1 & 2), CLI-04-

37, 60 NRC 646 (2004); and Alaska Dept. of Transp., CLI-04-38, 60 NRC at 653. 

Reconsideration is at the discretion of the Commission. Curators of the University of 

Missouri, CLI-95-17, 42 NRC 229, 234 n.6 (1995); Florida Power and Light Co. (St. Lucie 

Nuclear Power Plant, Unit 2), CLI-80-41, 12 NRC 650, 652 (1980)). 

NRC rules contemplate petitions for reconsideration of a Commission decision on the 

merits, not petitions for reconsideration of a Commission decision to decline review of an 

issue. See 10 C.F.R. § 2.341(d) (formerly § 2.786(e)). Louisiana Energy Services

(Claiborne Enrichment Center), CLI-97-2, 45 NRC 3, 5 (1997). 

10 C.F.R. § 2.345 (formerly § 2.771) provides that a party may file a petition for 

reconsideration of a final decision within ten (10) days after the date of that decision. See 

also Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), 

CLI-05-19, 62 NRC 403, 409 (2005). 

A motion to reconsider a prior decision will be denied where the arguments presented are 

not in reality an elaboration upon, or refinement of, arguments previously advanced, but 

instead is an entirely new thesis. Tennessee Valley Authority (Hartsville Nuclear Plant, 

Units 1A, 2A, 1B & 2B), ALAB-418, 6 NRC 1, 2 (1977); Louisiana Energy Services 

(Claiborne Enrichment Center), CLI-97-2, 45 NRC 3, 4 (1997). 

Motions to reconsider an order must be grounded upon a concrete showing, through 

appropriate affidavits rather than counsel’s rhetoric, of potential harm to the inspection 

and investigation functions relevant to a case. Commonwealth Edison Co. (Byron Nuclear 

Power Station, Units 1 & 2), ALAB-735, 18 NRC 19, 25-26 (1983). 

A showing of factual discrepancies contained in dicta in a Commission decision is not 

sufficient to support a motion for reconsideration when those discrepancies do not 

undercut the core rulings of the decision. Alaska Dept. of Transp., CLI-04-38, 

60 NRC at 654-55. 
JUNE 2011 APPEALS 73 

A majority vote of the Commission is necessary for reconsideration of a prior Commission 

decision. U.S. Dep’t of Energy, Project Management Corporation, Tennessee Valley 

Authority (Clinch River Breeder Reactor Plant), CLI-82-8, 15 NRC 1095, 1096 (1982). 

Where a party petitioning the Court of Appeals for review of a decision of the agency also 

petitions the agency to reconsider its decision, and the federal court stays its review 

pending the agency’s disposition of the motion to reconsider; the Hobbs Act does not 

preclude the agency’s reconsideration of the case. Public Service Co. of Indiana (Marble 

Hill Nuclear Generating Station, Units 1 & 2), ALAB-493, 8 NRC 253, 259 (1978). 

Although the Commission must set aside wrongly issued licenses when the post-licensing 

hearing uncovers fatal defects, the Commission need not set aside licenses when it 

uncovers defects which are promptly curable. Hydro Resources, Inc., CLI-00-15, 52 NRC 

65 (2000). 

The Commission will grant a motion for reconsideration when the Commission’s alleged 

error is clear, petitioner’s arguments are new, and petitioners could not have previously 

made the arguments. Consumers Energy Company (Big Rock Point Independent Spent 

Fuel Storage Installation), CLI-07-21, 65 NRC 519, 522 (2007). 

5.15 Jurisdiction of the NRC to Consider Matters While Judicial Review Is Pending

The NRC has jurisdiction to deal with supervening developments in a case which is 

pending before a court, at least where those developments do not bear directly on any 

question that will be considered by the court. Public Service Co. of New Hampshire

(Seabrook Station, Units 1 & 2), ALAB-349, 4 NRC 235 (1976). 

There has been no definitive ruling as to whether the NRC has jurisdiction to consider 

matters which do bear directly on questions pending before a court. The former Appeal 

Board considered it inappropriate to do so, at least where the court had not specifically 

requested it, based on considerations of comity between the court and the agency. See 

Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-350, 4 NRC 

365 (1976); Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), 

CLI-85-14, 22 NRC 177, 179 (1985), citing 28 U.S.C. § 2347(c). 

The NRC must act promptly and constructively in effectuating the decisions of the courts. 

Upon issuance of the mandate, the court’s decision becomes fully effective on the 

Commission, and it must proceed to implement it. Consumers Power Company (Midland 

Plant, Units 1 & 2), ALAB-395, 5 NRC 772, 783-784 (1977). Neither the filing nor the 

granting of a petition for certiorari to the Supreme Court operates as a stay, either with 

respect to the execution of the judgment below or of the mandate below by the lower 

courts. Id. at 781. 

The NRC may rely upon a district court decision striking down a state statute even if that 

district court ruling has been appealed, at least so long as the district court’s decision 

appears reasonable. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage 

Installation), CLI-04-4, 59 NRC 31, 37 (2004). 

When the U.S. Court of Appeals has stayed its mandate pending final resolution of a 

petition for rehearing en banc on the validity of an NRC regulation, the regulation remains 

in effect, and the Board is bound by those rules until that mandate is issued. Cleveland 
APPEALS 74 JUNE 2011 

Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), LBP-82-53, 16 NRC 

196, 205 (1982). 

Where a party petitioning the Court of Appeals for review of the decision of the agency 

also petitions the agency to reconsider its decision and the federal court stays its review 

pending the agency’s disposition of the motion to reconsider, the Hobbs Act does not 

preclude the agency’s reconsideration of the case. Public Service Co. of Indiana (Marble 

Hill Nuclear Generating Station, Units 1 & 2), ALAB-493, 8 NRC 253, 259 (1978). 

The pendency of a criminal investigation by the Department of Justice does not 

necessarily preclude other types of inquiry into the same matter by the NRC. Metropolitan 

Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-738, 18 NRC 177, 188 

(1983), rev’d in part on other grounds, CLI-85-2, 21 NRC 282 (1985). 

The pendency of a Grand Jury proceeding does not legally bar parallel administrative 

action. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-738, 

18 NRC 177, 191 n.27 (1983), rev’d in part on other grounds, CLI-85-2, 21 NRC 282 

(1985). 

5.16 Procedure on Remand 

 (Also see Section 4.6) 

5.17 Mootness and Vacatur

The Commission is not subject to the jurisdictional limitations placed upon federal courts 

by the “case or controversy” provision in Article III of the Constitution. Texas Utilities 

Generating Co. (Comanche Peak Steam Electric Station, Units 1 & 2), ALAB-714, 17 NRC 

86, 93 (1983), citing Northern States Power Co. (Prairie Island Nuclear Generating Plant, 

Units 1 & 2), ALAB-455, 7 NRC 41, 54 (1978), remanded on other grounds sub nom.

Minnesota v. Nuclear Regulatory Commission, 602 F.2d 412 (D.C. Cir. 1979). Generally, 

a case will be moot when the issues are no longer “live,” or the parties lack a cognizable 

interest in the outcome. The mootness doctrine applies to all stages of review, not merely 

to the time when a petition is filed. Consequently, when effective relief cannot be granted 

because of subsequent events, an appeal is dismissed as moot. Texas Utilities Electric 

Co. (Comanche Peak Steam Electric Station, Unit 2), CLI-93-10, 37 NRC 192, 200 (1993). 

A case may not be moot when the dispute is “capable of repetition, yet evading review.” 

Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515 

(1911). The exception applies only to cases in which the challenged action was in its 

duration too short to be litigated, and there is a reasonable expectation that the same 

complaining party will be subject to the same action again. Texas Utilities Electric Co.

(Comanche Peak Steam Electric Station, Unit 2), CLI-93-10, 37 NRC 192, 205 (1993). 

In an enforcement proceeding concerning a licensee’s challenge to a suspension order, a 

Licensing Board found there was no remaining live controversy and dismissed the 

proceeding as moot where the Staff (1) unconditionally withdrew the suspension order 

and (2) gave assurance that the issuance of another suspension order concerning 

violations of the same license conditions was not fairly “capable of repetition” (quoting the 

established exception to the mootness doctrine). Safety Light Corp., LBP-05-6, 61 NRC 

185, 187 (2005) (referencing Puerto Rico Elec. Power Auth. (North Coast Nuclear Plant, 

Unit 1), ALAB-605, 12 NRC 153, 154 (1980). 
JUNE 2011 APPEALS 75 

The Commission is not bound by judicial practice and need not follow judicial standards of 

vacatur. Kerr-McGee Chemical Corp. (West Chicago Rare Earths Facility), CLI-96-2, 

43 NRC 13, 14-15 (1995). 

Therefore, there is no insuperable barrier to the Commission’s rendition of an advisory 

opinion on issues which have been indisputably mooted by events occurring subsequent 

to a Licensing Board’s decision. However, this course will not be embarked upon in the 

absence of the most compelling cause. Texas Utilities Electric Co. (Comanche Peak 

Steam Electric Station, Unit 2), ALAB-714, 17 NRC 86, 93 (1983); Northern States Power 

Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-455, 7 NRC 41, 54 

(1978); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-900, 

28 NRC 275, 284 (1988). Commission practice is to address novel legal or policy issues 

and to provide appropriate guidance, and the Commission will review Licensing Board 

decisions even in moot cases when necessary to clarify important issues for the future. 

Duke Energy Corp. (Catawba Nuclear Station, Units 1 & 2), CLI-05-14, 61 NRC 359, 362 

(2005) (reviewing a Licensing Board decision sua sponte). 

A case is moot when there is no reasonable expectation that the matter will recur and 

interim relief or intervening events have eradicated the effects of the allegedly unlawful 

action. Advanced Medical Systems, CLI-93-8, 37 NRC 181, 185 (1993). The NRC is not 

strictly bound by the mootness doctrine; however, its adjudicatory tribunals have generally 

adhered to the mootness principle. Id. See, e.g., Innovative Weaponry, Inc., LBP-95-8, 

41 NRC 409, 410 (1995) (the Board determined the issue of whether there was an 

adequate basis for the Staff’s denial to be moot because the license was transferred). 

As opposed to unreviewed Licensing Board orders, vacatur of prior Commission decisions 

in a terminated license transfer proceeding is not warranted because the precedential 

value of a final determination on a generic legal issue litigated in a particular proceeding 

should not hinge upon the presence or absence of wholly extraneous subsequent 

developments in that proceeding. Pacific Gas and Electric Co. (Diablo Canyon Nuclear 

Power Plant, Units 1 & 2), CLI-04-18, 60 NRC 1, 3 (2004). 

While unreviewed Board decisions do not create binding precedent, when the unreviewed 

rulings “involve complex questions and vigorously disputed interpretations of agency 

provisions,” the Commission may choose as a policy matter to vacate them and thereby 

eliminate any future confusion and dispute over their meaning or effect. Louisiana Energy 

Services (Claiborne Enrichment Center), CLI-98-5, 47 NRC 113, 114 (1998); Yankee 

Atomic Electric Co. (Yankee Nuclear Power Station), CLI-99-24, 50 NRC 219, 222 (1999). 

The Commission’s customary practice is to vacate Board decisions that have not been 

reviewed at the time the case becomes moot. North Atlantic Energy Service Corp.

(Seabrook Station, Unit 1), CLI-98-24, 48 NRC 267 (1998). 
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JUNE 2011 GENERAL MATTERS-TABLE OF CONTENTS i 

TABLE OF CONTENTS 

GENERAL MATTERS

6.0 GENERAL MATTERS ................................................................ GM 1 

6.1 Amendments to Existing Licenses and/or Construction 

 Permits ....................................................................................... GM 1 

6.1.1 Staff Review of Proposed Amendments ..................................... GM 2 

6.1.2 Amendments to Research Reactor Licenses (RESERVED)....... GM 2 

6.1.3 Matters to Be Considered in License Amendment 

 Proceedings ............................................................................ GM 2 

6.1.3.1 Specific Matters Considered in License Amendment 

 Proceedings ............................................................................. GM 2 

6.1.4 Hearing Requirements for License/Permit Amendments ............ GM 3 

6.1.4.1 Notice of Hearing on License/Permit Amendments 

 (RESERVED) ........................................................................... GM 6 

6.1.4.2 Intervention on License/Permit Amendments ............................. GM 6 

6.1.4.3 Summary Disposition Procedures on License/Permit 

 Amendments ............................................................................ GM 6 

6.1.4.4 Matters Considered in Hearings on License Amendments ......... GM 6 

6.1.5 Primary Jurisdiction to Consider License Amendment 

 in Special Hearing .................................................................... GM 8 

6.1.6 Facility Changes Without License Amendments ......................... GM 8 

6.2 Amendments to Construction Permit Applications ............... GM 9 

6.3 Antitrust Considerations .......................................................... GM 9 

6.3.A Application of Antitrust Laws; Market Power ............................... GM 12 

6.3.B Application of Antitrust Laws; Remedial Authority ...................... GM 13 

6.3.1 Consideration of Antitrust Matters After the 

 Construction Permit Stage ....................................................... GM 14 

6.3.1.1 Limitations on Antitrust Review After Issuance 

 of Operating License ................................................................ GM 16 

6.3.2 Intervention in Antitrust Proceedings .......................................... GM 17 

6.3.3 Discovery in Antitrust Proceedings ............................................. GM 18 

6.3.3.1 Discovery Cutoff Dates for Antitrust Proceedings ....................... GM 18 

6.4 Attorney Conduct ...................................................................... GM 19 

6.4.1 Practice Before Commission ....................................................... GM 19 

6.4.2 Disciplinary Matters re Attorneys ................................................ GM 21 

6.4.2.1 Jurisdiction of Special Board re Attorney Discipline .................... GM 22 

6.4.2.2 Procedures in Special Disqualification Hearings re Attorney 

 Conduct .................................................................................... GM 22 

6.4.2.3 Conflict of Interest ....................................................................... GM 23 

6.5 Communications Between Staff/Applicant/Other Parties/

 Adjudicatory Bodies .............................................................. GM 23 

6.5.1 Ex Parte Communications Rule .................................................. GM 24 

6.5.2 “Separation of Functions” Rules ................................................. GM 25 

6.5.3 Telephone Conference Calls ...................................................... GM 25 
GENERAL MATTERS-TABLE OF CONTENTS ii JUNE 2011 

6.5.4 Staff-Applicant Communications ................................................. GM 26 

6.5.4.1 Staff Review of Application ......................................................... GM 26 

6.5.4.2 Staff-Applicant Correspondence ................................................. GM 27 

6.5.5 Notice of Relevant Significant Developments ............................. GM 27 

6.5.5.1 Duty to Inform Adjudicatory Board of Significant 

 Developments .......................................................................... GM 27 

6.6 Decommissioning ..................................................................... GM 30 

6.6.1 Decommissioning Plan ............................................................... GM 31 

6.6.1.1 Decommissioning Funding .......................................................... GM 31 

6.7 Early Site Review Procedures ................................................. GM 34 

6.7.1 Scope of Early Site Review ......................................................... GM 34 

6.8 Endangered Species Act .......................................................... GM 35 

6.8.1 Required Findings re Endangered Species Act .......................... GM 35 

6.8.2 Degree of Proof Needed re Endangered Species Act ................ GM 35 

6.9 Financial Qualifications ............................................................ GM 35 

6.10 Generic Issues .......................................................................... GM 40 

6.10.1 Consideration of Generic Issues in Licensing 

 Proceedings ............................................................................. GM 41 

6.10.2 Effect of Unresolved Generic Issues ........................................... GM 42 

6.10.2.1 Effect of Unresolved Generic Issues in Construction 

 Permit Proceedings .................................................................. GM 42 

6.10.2.2 Effect of Unresolved Generic Issues in Operating 

 License Proceedings ................................................................ GM 43 

6.11 Power Reactor License Renewal Proceeding ........................ GM 43 

6.12 Masters in NRC Proceedings ................................................... GM 50 

6.13 SAMA Analysis in Reactor License Renewal ......................... GM 50 

6.14 Materials Licenses .................................................................... GM 52 

6.14.1 Written Presentations in Materials Proceedings ......................... GM 53 

6.14.2 Stays of Material Licensing Proceedings .................................... GM 54 

6.14.3 Scope of Materials Proceedings/Authority of Presiding 

 Officer ...................................................................................... GM 56 

6.14.4 Amendments to Material Licenses .............................................. GM 56 

6.14.5 Materials License – Renewal ...................................................... GM 56 

6.14.6 Termination of Material License .................................................. GM 57 

6.15 Motions in NRC Proceedings ................................................... GM 57 

6.15.1 Form of Motion ............................................................................ GM 58 

6.15.1.1 Consultation Requirement (10 C.F.R. §2.323(b)) ....................... GM 58 

6.15.2 Responses to Motions ................................................................ GM 59 

6.15.2.1 Time for Filing Responses to Motions ......................................... GM 59 

6.15.3 Licensing Board Actions on Motions ........................................... GM 59 
JUNE 2011 GENERAL MATTERS-TABLE OF CONTENTS iii 

6.16 NEPA Considerations ............................................................... GM 60 

6.16.1 Environmental Impact Statements .............................................. GM 65 

6.16.1.1 Need to Prepare an EIS .............................................................. GM 68 

6.16.1.2 Scope of EIS ............................................................................... GM 74 

6.16.2 Role of EIS .................................................................................. GM 77 

6.16.3 Circumstances Requiring Redrafting of Final 

 Environmental Statement ......................................................... GM 78 

6.16.3.1 Effect of Failure to Comment on Draft Environmental 

 Statement ................................................................................. GM 80 

6.16.3.2 Stays Pending Remand for Inadequate EIS ............................... GM 81 

6.16.4 Alternatives ................................................................................. GM 81 

6.16.4.1 Obviously Superior Standard for Site Selection .......................... GM 85 

6.16.4.2 Standards for Conducting Cost-Benefit Analysis 

 Related to Alternatives ............................................................. GM 86 

6.16.5 Need for Facility .......................................................................... GM 87 

6.16.6 Cost-Benefit Analysis Under NEPA ............................................ GM 88 

6.16.6.1 Consideration of Specific Costs Under NEPA ............................ GM 91 

6.16.6.1.1 Cost of Withdrawing Farmland from Production ......................... GM 91 

 (Also see Section 3.8.3.5.1) 

6.16.6.1.2 Socioeconomic Costs as Affected by Increased 

 Employment and Taxes from Proposed Facility ...................... GM 91 

6.16.7 Consideration of Class 9 Accidents/“Remote and 

 Speculative” Accidents in an EIS ............................................. GM 91 

6.16.8 Power of NRC Under NEPA ....................................................... GM 94 

6.16.8.1 Powers in General ..................................................................... GM 95 

6.16.8.2 Transmission Line Routing ......................................................... GM 96 

6.16.8.3 Pre-LWA Activities/Offsite Activities ............................................ GM 97 

6.16.8.4 Relationship to EPA with Regard to Cooling Systems ................ GM 97 

6.16.8.5 NRC Power Under NEPA re the Federal Water Pollution 

 Control Act ............................................................................... GM 98 

6.16.8.6 Environmental Justice ................................................................. GM 98 

6.16.8.7 Relationship of NRC Environmental Reviews to State Law ........ GM 100 

6.16.8.8 NEPA Disclosure Provisions ....................................................... GM 100 

6.16.9 Spent Fuel Pool Proceedings ..................................................... GM 100 

6.16.10 Certificate of Compliance/Gaseous Diffusion Plant .................... GM 102 

6.16.11 Waste Confidence Rule (NEPA) ................................................. GM 102 

6.16.12 Greenhouse Gases ..................................................................... GM 102 

6.17 NRC Staff ................................................................................... GM 102 

6.17.1 Staff Role in Licensing Proceedings ........................................... GM 102 

6.17.1.1 Staff Demands on Applicant or Licensee .................................... GM 107 

6.17.1.2 Staff Witnesses ........................................................................... GM 108 

6.17.1.3 Posthearing Resolution of Outstanding Matters by the Staff ...... GM 108 

6.17.2 Status of Staff Regulatory Guides (See Section 6.21.3) ............. GM 111 

6.17.3 Status of Staff Position and Working Papers .............................. GM 111 

6.17.4 Status of Standard Review Plan ................................................. GM 111 

6.17.5 Conduct of NRC Employees (RESERVED) ................................ GM 112 

6.18 Orders of Licensing Boards and Presiding Officers ............. GM 112 

6.18.1 Compliance with Board Orders ................................................... GM 112 
GENERAL MATTERS-TABLE OF CONTENTS iv JUNE 2011 

6.19 Precedent and Adherence to Past Agency Practice .............. GM 113 

6.20 Pre-Construction Permit Activities ......................................... GM 114 

6.20.1 Pre-LWA Activity ......................................................................... GM 115 

6.20.2 Limited Work Authorization ......................................................... GM 116 

6.20.2.1 LWA Status Pending Remand Proceedings ...............................GM 116 

6.21 Regulations ............................................................................... GM 116 

6.21.1 Compliance with Regulations ...................................................... GM 117 

6.21.2 Commission Policy Statements .................................................. GM 117 

6.21.3 Regulatory Guides and Other Guidance Documents .................. GM 117 

6.21.4 Challenges to Regulations .......................................................... GM 120 

6.21.5 Agency’s Interpretation of Its Own Regulations .......................... GM 122 

6.21.6 General Design Criteria .............................................................. GM 124 

6.21.7 Reporting Requirements ............................................................. GM 126 

6.22 Rulemaking................................................................................ GM 126 

6.22.1 Rulemaking Distinguished from General Policy 

 Statements ............................................................................... GM 127 

6.22.2 Generic Issues and Rulemaking ................................................. GM 127 

6.23 Research Reactors ................................................................... GM 128 

6.24 Disclosure of Information to the Public .................................. GM 128 

6.24.1 Freedom of Information Act Disclosure ....................................... GM 129 

6.24.2 Privacy Act Disclosure (RESERVED) ......................................... GM 131 

6.24.3 Disclosure of Proprietary Information .......................................... GM 131 

6.24.3.1 Protecting Information Where Disclosure Is Sought in 

 an Adjudicatory Proceeding ..................................................... GM 133 

6.24.3.2 Security Plan Information Under 10 C.F.R. § 2.390(d) ............... GM 136 

6.25 Enforcement Proceedings ....................................................... GM 137 

6.25.1 NRC Enforcement Authority ........................................................ GM 137 

6.25.2 Enforcement Procedures ............................................................ GM 138 

6.25.2.1 Due Process ............................................................................... GM 140 

6.25.2.2 Intervention ................................................................................. GM 140 

6.25.3 Petitions for Enforcement Action Under 10 C.F.R. § 2.206 ........ GM 143 

6.25.3.1 Commission Review of Director’s Decisions Under 

 10 C.F.R. § 2.206 ..................................................................... GM 147 

6.25.4 Grounds for Enforcement Orders ................................................ GM 148 

6.25.5 Immediately Effective Orders ...................................................... GM 151 

6.25.5.1 Review of Immediate Effectiveness of Enforcement Order ........ GM 153 

6.25.6 Issues in Enforcement Proceedings ........................................... GM 156 

6.25.7 Burden of Proof ........................................................................... GM 157 

6.25.8 Licensing Board Review of Proposed Sanctions ........................ GM 158 

6.25.9 Stay of Enforcement Proceedings .............................................. GM 159 

6.25.10 Civil Penalty Proceedings ........................................................... GM 161 

6.25.11 Settlement of Enforcement Proceedings .................................... GM 163 

6.25.12 Inspections and Investigations .................................................... GM 163 

6.25.13 False Statements ........................................................................ GM 164 

6.25.14 Independence of Inspector General ............................................ GM 165 
JUNE 2011 GENERAL MATTERS-TABLE OF CONTENTS v 

6.25.15 Whistleblower Protection ............................................................ GM 165 

6.26 Stay of Agency Licensing Action – Informal Hearings ......... GM 166 

6.27 (RESERVED) .............................................................................. GM 167 

6.28 Technical Specifications .......................................................... GM 167 

6.29 Termination of Facility Licenses ............................................. GM 169 

6.30 Procedures in Other Types of Hearings ................................. GM 170 

6.30.1 Military or Foreign Affairs Functions ........................................... GM 170 

6.30.2 Import/Export Licensing .............................................................. GM 170 

 (Also see Section 3.4.6) 

6.30.2.1 Jurisdiction of Commission re Export Licensing ......................... GM 172 

6.30.2.2 Export License Criteria ................................................................ GM 172 

6.30.2.3 HEU Export License – Atomic Energy Act .................................. GM 173 

6.30.2.4 Import Licensing .......................................................................... GM 173 

6.30.3 High-Level Repository Waste Licensing ..................................... GM 174 

6.30.3.1 Intervention in the High-Level Waste Proceeding ....................... GM 175 

6.30.3.2 Consideration of Character and Competence in the 

 High-Level Waste Proceeding ................................................. GM 175 

6.30.4 Low-Level Waste Disposal .......................................................... GM 175 

6.30.5 (RESERVED) .............................................................................. GM 176 

6.30.6 Certification of Gaseous Diffusion Plants .................................... GM 176 

6.30.7 Senior Operator License Proceedings ........................................ GM 177 

6.30.8 Subpart K Proceedings ............................................................... GM 177 

6.31 Transfers of Licenses (Directly and Indirectly) ...................... GM 177 

6.31.1 Subpart M Proceedings .............................................................. GM 179 

6.31.2 Standing in License Transfer Proceedings ................................. GM 182 

6.31.3 Scope of License Transfer Proceedings ..................................... GM 185 

6.31.3.1 Consideration of Financial Qualifications .................................... GM 188 

6.31.3.2 Antitrust Considerations .............................................................. GM 190 

6.31.3.3 Need for EIS Preparation ............................................................ GM 191 

6.31.3.4 Concurrent Proceedings ............................................................. GM 191 

6.31.3.5 Decommissioning ........................................................................ GM 192 

6.31.4 Motions for Stay/Suspension of Proceedings ............................. GM 194 

6.32 Television and Still Camera Coverage of NRC 

 Proceedings .............................................................................. GM 195 

6.33 National Historic Preservation Act Requirements ................. GM 195 

6.34 Trust Responsibility ................................................................. GM 196 

6.35 Native American Graves Protection and Repatriation

 Act Requirements ..................................................................... GM 196 

6.36 Hybrid Procedures Under Subpart K ...................................... GM 197 

 (Also see Section 6.16.9) 
GENERAL MATTERS-TABLE OF CONTENTS vi JUNE 2011 

6.37 Agreement State Issues ........................................................... GM 200 

6.38 Generic Security Issues ........................................................... GM 200 

6.39 Deferred Plant Status ............................................................... GM 201 
JUNE 2011 GENERAL MATTERS 1 

6.0 GENERAL MATTERS 

6.1 Amendments to Existing Licenses and/or Construction Permits

General requirements and guidance for the amendment of an existing license or 

construction permit for production and utilization facilities are set out in 10 C.F.R. §§ 50.90 

and 50.91. 

In passing upon an application for an amendment to an operating license or construction 

permit, “the Commission will be guided by the considerations which govern the issuance 

of initial licenses or construction permits to the extent applicable and appropriate.” 

10 C.F.R. § 50.91. These considerations are broadly identified in 10 C.F.R. § 50.40. In 

essence, Section 50.40 requires that the Commission be persuaded, inter alia, that the 

application will comply with all applicable regulations, that the health and safety of the 

public will not be endangered, and that any applicable requirements of 10 C.F.R. Part 51 

(governing environmental protection) have been satisfied. Northern States Power 

Company (Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-455, 7 NRC 41, 44 

(1978). 

For two years following the Three Mile Island accident, the Commission authorized the 

operation of a nuclear facility by issuing, first, a low-power license and then, a full-power 

operating license. However, believing that it was unnecessary to issue two separate 

licenses, the Commission in recent years has “amended” an existing low-power license by 

dropping the low-power limitation and authorizing full-power operation. Such a “license 

amendment” in a previously uncontested licensing proceeding is not intended to create 

any new hearing rights under § 189a. of the Atomic Energy Act of 1954 which requires an 

appropriate notice and opportunity for hearing on an amendment to an operating license. 

Mississippi Power and Light Co. (Grand Gulf Nuclear Station, Unit 1), CLI-84-19, 20 NRC 

1055, 1058-59 (1984). 

A Board must evaluate an application for a license amendment according to its terms. 

The Board may not speculate about future events which might possibly affect the 

application. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, 

Units 1 & 2), LBP-86-21, 23 NRC 849, 855, 859 (1986). 

The Board expressed skepticism that the amendment proposed by Licensee “is a 

‘material alteration’ in the sense intended by the regulations so as to require a 

construction permit.” See Carolina Power & Light Co. (Shearon Harris Nuclear Power 

Plant), LBP-00-12, 51 NRC 247, 281-82 (2000), citing 10 C.F.R. § 50.92(a); see also

Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), CLI-01-11, 

53 NRC370, 391-92 (2001). Alterations of the type that require a construction permit are 

those that involve substantial changes that, in effect, transform the facility into something 

it previously was not or that introduce significant new issues relating to the nature and 

function of the facility. See Portland General Electric Co. (Trojan Nuclear Plant), 

LBP-77-69, 6 NRC 1179, 1183 (1977). To trigger the need for a construction permit, the 

change must “essentially [render] major portions of the original safety analysis for the 

facility inapplicable to the modified facility.” See id.; Carolina Power & Light Co. (Shearon 

Harris Nuclear Power Plant), CLI-01-11, 53 NRC 370, 391-92 (2001). 
GENERAL MATTERS 2 JUNE 2011 

6.1.1 Staff Review of Proposed Amendments 

A Board adjudicating issues regarding a proposed license amendment does not 

thereby gain authority over the Staff’s non-adjudicatory review of the proposed 

amendment. Therefore, a Board lacked jurisdiction to order the Staff to allow a hearing 

petitioner’s representatives to attend a scheduled closed meeting between the Staff 

and the amendment applicant regarding the applicant’s security submittal. Duke 

Energy Corp. (Catawba Nuclear Station, Units 1 & 2), CLI-04-6, 59 NRC 62, 74 (2004). 

6.1.2 Amendments to Research Reactor Licenses 

(RESERVED) 

6.1.3 Matters to Be Considered in License Amendment Proceedings 

License amendments can be made immediately effective solely at the discretion of 

NRC Staff, following a determination by Staff that there are no significant hazards 

considerations involved. Immediate effectiveness findings by the Staff are not subject 

to review by Licensing Boards. Gulf States Utilities Company, et al. (River Bend 

Station, Unit 1), LBP-94-3, 39 NRC 31 (1994), aff’d, CLI-94-10, 40 NRC 43 (1994). 

6.1.3.1 Specific Matters Considered in License Amendment Proceedings 

While the balancing of costs and benefits of a project is usually done in the context 

of an environmental impact statement (EIS) prepared because the project will have 

significant environmental impacts, at least one court has implied that a cost-benefit 

analysis may be necessary for certain federal actions which, of themselves, do not 

have a significant environmental impact. Specifically, the court opined that an 

operating license amendment derating reactor power significantly could upset the 

original cost-benefit balance and, therefore, require that the cost-benefit balance for 

the facility be reevaluated. Union of Concerned Scientists v. AEC, 499 F.2d 1069, 

1084-85 (D.C. Cir. 1974). 

Neither the Staff nor the Licensing Board need concern itself with the matter of the 

ultimate disposal of spent fuel; i.e., with the possibility that the pool will become an 

indefinite or permanent repository for its contents, in the evaluation of a proposed 

expansion of the capacity of a spent fuel pool. Northern States Power Company

(Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-455, 7 NRC 41, 51 

(1978). 

A license amendment that does not involve, or result in, environmental impacts 

other than those previously considered and evaluated in prior initial decisions for the 

facility in question does not require the preparation and issuance of either an EIS or 

an environmental impact appraisal (EIA) and negative declaration pursuant to 

10 C.F.R. § 51.5(b) and (c). Portland General Electric Co. (Trojan Nuclear Plant), 

LBP-78-40, 8 NRC 717, 744-45 (1978), aff’d, ALAB-534, 9 NRC 287 (1979). 

An operating license amendment that does not modify any systems, structures, or 

components (SSCs) but which extends the license term to recapture time lost during 

construction represents a significant amendment, and not merely a ministerial 

administrative change, notwithstanding prior review during the operating license 
JUNE 2011 GENERAL MATTERS 3 

proceeding of such SSCs. Pacific Gas and Electric Co. (Diablo Canyon Nuclear 

Power Plant, Units 1 & 2), LBP-94-35, 40 NRC 180, 188 (1994). 

There is no statutory or regulatory requirement that an applicant demonstrate any 

benefit from a license amendment. Tennessee Valley Authority (Sequoyah Nuclear 

Plant, Units 1 & 2; Watts Bar Nuclear Plant, Unit 1), LBP-02-14, 56 NRC 15, 35 

(2002). 

One necessary component of NRC review of a license amendment application is 

review of the proposed amendment’s compatibility with the licensee’s existing 

design and licensing basis. If the NRC finds that there would be unacceptable 

incompatibilities, it may condition its approval of the amendment upon the licensee 

making necessary adjustments to the existing design and licensing basis to resolve 

these incompatibilities. Entergy Nuclear Vermont Yankee, L.L.C. and Entergy 

Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-04-28, 

60 NRC 548, 565 (2004). 

6.1.4 Hearing Requirements for License/Permit Amendments 

The Atomic Energy Act of 1954, as amended (AEA) does not specifically require a 

mandatory hearing on the question as to whether an amendment to an existing license 

or permit should issue. At the same time, the Act and the regulations 

(10 C.F.R. § 2.105(a)(3)) require that, where a proposed amendment involves 

“significant hazards considerations,” the opportunity for a hearing on the amendment 

be provided prior to issuance of the amendment and that any hearing requested be 

held prior to issuance of the amendment. An opportunity for a hearing will also be 

provided on any other amendment as to which the Commission, the Director of Nuclear 

Reactor Regulation or the Director of Nuclear Material Safety and Safeguards 

determines that an opportunity for public hearing should be afforded. 

10 C.F.R. § 2.105(a)(6), (7). 

Section 189.a. hearing rights are triggered despite Commission assertion that it did not 

“amend” the license when the Commission abruptly changed its policy so as to 

retroactively enlarge extant licensee’s authority, and licensee’s original license did not 

authorize licensee to implement major-component dismantling of type undertaken in 

project. Citizens Awareness Network v. NRC, 59 F.3d 284, 294 (1st Cir. 1995). The 

statute’s phrase “modification of rules and regulations” encompasses substantive 

interpretative policy changes, and the Commission cannot effect such modifications 

without complying with the statute’s notice and hearing provisions. 59 F.3d at 292. 

In evaluating whether an NRC authorization represents a license amendment within 

the meaning of Section 189a. of the Atomic Energy Act, courts repeatedly have 

considered whether the NRC approval granted the licensee any greater operating 

authority or otherwise altered the original terms of a license. Cleveland Electric 

Illuminating Co. (Perry Nuclear Power Plant, Unit 1), CLI-96-13, 44 NRC 315, 326 

(1996). 

Where an NRC approval does not permit the licensee to operate in any greater 

capacity than originally prescribed and all relevant regulations and license terms 

remain applicable, the authorization does not amend the license. Cleveland Electric 
GENERAL MATTERS 4 JUNE 2011 

Illuminating Co. (Perry Nuclear Power Plant, Unit 1), CLI-96-13, 44 NRC 315, 

327(1996). 

A technical specification is a license condition. A license request to change that 

condition constitutes a request to amend the license and therefore creates adjudicatory 

hearing rights under AEA § 189.a., 42 U.S.C. § 2239(a). See Cleveland Electric 

Illuminating Co. (Perry Nuclear Power Plant, Unit 1), CLI-93-21, 38 NRC 87, 91 n.6, 93 

(1993); General Public Utilities Nuclear Corp. (Oyster Creek Nuclear Generating 

Station), LBP-96-23, 44 NRC 143, 150 n.6 (1996). 

Construction permit amendment/extension cases, unlike construction permit 

proceedings, are not subject to the mandatory hearing requirement. Washington 

Public Power Supply System (WPPSS Nuclear Project No. 1), ALAB-771, 19 NRC 

1183, 1188 (1984). 

An application for an exemption concerning the security plan under 10 C.F.R. § 73.5 

does not constitute a license amendment. Commonwealth Edison Co. (Zion Nuclear 

Power Station, Units 1 & 2), CLI-00-5, 51 NRC 90, 96 (2000). 

A prior hearing is not required under Section 189.a. of the AEA, as amended, for 

Commission approval of a license amendment in situations where the NRC Staff 

makes a “no significant hazards consideration” finding. Commonwealth Edison Co.

(Dresden Nuclear Power Station, Unit 1), CLI-81-25, 14 NRC 616, 622-623 (1981); 

Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 1), CLI-86-4, 

23 NRC 113, 123 (1986). See Pacific Gas and Electric Co. (Diablo Canyon Nuclear 

Power Plant, Units 1 & 2), CLI-86-12, 24 NRC 1, 11 (1986), rev’d and remanded on 

other grounds sub nom. San Luis Obispo Mothers for Peace v. NRC, 799 F.2d 1268 

(9th Cir. 1986). 

The legislative history of Section 12 of Pub. L. 97-415 (1982), the “Sholly Amendment,” 

modifying Section 189(a) of the AEA, supports the determination that Congress 

intended that hearings on license amendments be held, if properly requested, even 

after irreversible actions have been taken upon a finding of no significant hazards 

consideration. Mississippi Power and Light Co. (Grand Gulf Nuclear Station, Unit 1), 

LBP-84-23, 19 NRC 1412, 1414-15 (1984). Thus, a timely filed contention will not be 

considered moot, even if the contested action has been completed. Mississippi Power 

and Light Co. (Grand Gulf Nuclear Station, Unit 1), LBP-84-19, 19 NRC 1076, 1084 

(1984). 

“‘The Court has recognized that even where an agency’s enabling statute expressly 

requires it to hold a hearing, the agency may rely on its rulemaking authority to 

determine issues that do not require case-by-case consideration’....‘[A] contrary 

holding would require the agency continually to relitigate issues that may be 

established fairly and efficiently in a single rulemaking proceeding.’” Kelley v. Selin, 

42 F.3d 1501, 1511 (6th Cir. 1995), citing Mobil Oil Exploration & Producing Southeast,

Inc. v. United Distribution Cos., 498 U.S. 211, 228 (1991) (quoting Heckler v. 

Campbell, 461 U.S. 458, 467 (1983)). 

An opportunity for a hearing pursuant to Section 189.a. of the AEA is not triggered by a 

rulemaking that is generic in nature and involves no specific licensing decision. The 

rulemaking may specifically benefit a particular plant, but it does not trigger hearing 
JUNE 2011 GENERAL MATTERS 5 

rights if the rulemaking does not grant a specific plant a right to operate in a greater 

capacity than it had previously been allowed to operate. Kelley v. Selin, 42 F.3d 1501, 

1515 (6th Cir. 1995). 

The “Sholly” provisions have been extended to amendments to Part 52 combined 

construction permits and operating licenses issued pursuant to 10 C.F.R. Part 52. A 

post-construction amendment to a combined license may be made immediately 

effective, prior to the completion of any required hearing, if the Commission determines 

that there are no significant hazards considerations. 10 C.F.R. § 52.97(b)(2)(ii)1, 

57 Fed. Reg. 60,975, 60,978 (Dec. 23, 1992). 

Upholding the Commission’s rule changes to Part 52, the court held that the 

Commission may rely on prior hearings and findings from the pre-construction and 

construction stage and significantly limit the scope of a § 189.a. hearing when 

considering whether to authorize operation of a plant. Nuclear Information Resource 

Service v. NRC, 969 F.2d 1169 (D.C. Cir. 1992). 

The Staff may issue an amendment to a materials license without providing prior notice 

of an opportunity for a hearing. Curators of the University of Missouri, LBP-90-18, 

31 NRC 559, 574 (1990), aff’d on other grounds, CLI-95-1, 41 NRC 71 (1995). 

A Board may terminate a hearing on an application for an amendment to an operating 

license when the only intervenor withdraws from the hearing, and there are no longer 

any matters in controversy. Mississippi Power and Light Co. (Grand Gulf Nuclear 

Station, Unit 1), LBP-84-39, 20 NRC 1031, 1032 (1984). 

A hearing on an application for a facility license amendment may be dismissed when 

the parties have all agreed to a stipulation for the withdrawal of all the intervenors’ 

admitted contentions and the Board has not raised any sua sponte issues. Pacific Gas 

and Electric Co. (Humboldt Bay Power Plant, Unit 3), LBP-88-4, 27 NRC 236, 238-39 

(1988). 

A hearing can be requested on the application for a license amendment to reflect a 

change in ownership of a facility. Public Service Company of New Hampshire

(Seabrook Station, Units 1 & 2), ALAB-422, 6 NRC 33, 80 (1977). 

A license amendment initiated by Staff order may become immediately effective under 

§ 2.202 without a prior hearing if the public health, safety or interest requires. 

Furthermore, there is no inherent contradiction between a finding that there is “no 

significant hazard” in a given case and a finding in the same case that latent conditions 

may potentially cause harm in the future thus justifying immediate effectiveness of an 

amendment permitting corrections. Nuclear Fuel Services Inc. and New York State 

Energy Research and Development Authority (Western New York Nuclear Service 

Center), CLI-81-29, 14 NRC 940, 942 (1981). 

For there to be any statutory right to a hearing on the granting of an exemption, such a 

grant must be part of a proceeding for the granting, suspending, revoking, or amending 

of any license or construction permit under the Atomic Energy Act. United States 

Department of Energy, Project Management Corporation, Tennessee Valley Authority

(Clinch River Breeder Reactor Plant), CLI-82-23, 16 NRC 412, 421 (1982). 
GENERAL MATTERS 6 JUNE 2011 

6.1.4.1 Notice of Hearing on License/Permit Amendments 

(RESERVED) 

6.1.4.2 Intervention on License/Permit Amendments 

The requirements for intervention in license amendment proceedings are the same 

as the requirements for intervention in initial permit or license proceedings (see

generally Section 2.9). The right to intervene is not limited to those persons who 

oppose the proposed amendment itself, but extends to those who raise related 

claims involving matters arising directly from the proposed amendment. Vermont 

Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-245, 

8 AEC 873, 875 (1974). 

Persons who would have standing to intervene in new construction permit hearings, 

which would be required if good cause could not be shown for the extension, have 

standing to intervene in construction extension proceedings to show that no good 

cause existed for extension and, consequently, new construction permit hearings 

would be required to complete construction. Northern Indiana Public Service Co.

(Bailly Generating Station, Nuclear 1), LBP-80-22, 12 NRC 191, 195 (1980). 

The fact that a member of a citizens’ group lived 20 miles from a site was not 

sufficient to grant the group standing to intervene in a proceeding for an amendment 

to a materials license held by the site. U.S. Dep’t of Army (Army Research 

Laboratory), LBP-00-21, 52 NRC 107 (2000). 

6.1.4.3 Summary Disposition Procedures on License/Permit Amendments 

Summary disposition procedures may be used in proceedings held upon requests 

for hearings on proposed amendments. Boston Edison Co. (Pilgrim Nuclear 

Station, Unit 1), ALAB-191, 7 AEC 417 (1974). In a construction permit amendment 

proceeding, summary disposition may be granted based on pleadings alone, or 

pleadings accompanied by affidavits or other documentary information, where there 

is no genuine issue as to any material fact that warrants a hearing and the moving 

party is entitled to a decision in its favor as a matter of law. Washington Public 

Power Supply System (WPPSS Nuclear Project No. 1), ALAB-771, 19 NRC 1183, 

1189 (1984), citing 10 C.F.R. § 2.710(d) (formerly § 2.749(d)). Entergy Nuclear 

Vermont Yankee, L.L.C. and Entergy Nuclear Operations, Inc. (Vermont Yankee 

Nuclear Power Station), LBP-04-28, 60 NRC 548, 565 (2004). 

6.1.4.4 Matters Considered in Hearings on License Amendments 

In considering an amendment to transfer part ownership of a facility, a Licensing 

Board held that questions concerning the legality of transferring some ownership 

interest in advance of the Commission action on the amendment was outside its 

jurisdiction and should be pursued under the provisions of 10 C.F.R. Part 2, 

Subpart B (dealing with enforcement) instead. Detroit Edison Co. (Enrico Fermi 

Atomic Power Plant, Unit 2), LBP-78-11, 7 NRC 381, 386 (1978). The same 

Licensing Board also ruled that issues to be considered in such a transfer of 

ownership proceeding do not include questions of the financial qualifications of the 

original applicant or the technical qualification of any of the applicants. Detroit 
JUNE 2011 GENERAL MATTERS 7 

Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-11, 7 NRC 381, 392 

(1978). 

With regard to environmental considerations in a proceeding on an application for 

license amendment, a Licensing Board should not embark broadly upon a fresh 

assessment of the environmental issues which have already been thoroughly 

considered and which were decided in the initial decision. Rather, the Board’s role 

in the environmental sphere will be limited to assuring itself that the ultimate 

National Environmental Policy Act (NEPA) conclusions reached in the initial decision 

are not significantly affected by such new developments. Georgia Power Co.

(Vogtle Nuclear Plant, Units 1 & 2), ALAB-291, 2 NRC 404, 415 (1975). 

License amendments can be made immediately effective solely at the discretion of 

NRC Staff under the so-called “Sholly Amendment,” in advance of the holding and 

completion of any required hearing, following a determination by Staff that there are 

no significant hazards considerations involved. Carolina Power & Light Co.

(Shearon Harris Nuclear Power Plant), CLI-01-7, 53 NRC 113, 117 (2001); see AEA 

§ 189, 42 U.S.C. § 2239. 

The Staff is authorized to make a no significant hazards consideration finding if 

operation of the facility in accordance with the proposed amendment would not: 

 (1) Involve a significant increase in the probability or consequences of an 

 accident previously evaluated; or 

 (2) Create the possibility of a new or different kind of accident from any 

 accident previously evaluated; or 

 (3) Involve a significant reduction in a margin of safety. 

Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), CLI-01-7, 

53 NRC 113, 116 (2001). 

Immediate effectiveness findings are not subject to review by Licensing Boards. 

Florida Power & Light Company (Turkey Point Nuclear Generating Plant, 

Units 3 & 4), LBP-08-18, 68 NRC 533, 541 (2008); Carolina Power & Light Co.

(Shearon Harris Nuclear Power Plant), CLI-01-7, 53 NRC 113, 116 (2001). Nor can 

a Licensing Board review the immediate effectiveness of a license amendment 

issued on the basis of a “no significant hazards consideration” after the Staff has 

completed all the steps required for the issuance of the amendment. 

Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 & 2), LBP-98-24, 

48 NRC 219, 222 (1998). However, the Board has authority to review such an 

amendment if the Staff fails to perform the environmental review required by 

10 C.F.R. § 51.25 prior to the issuance of the amendment. Vermont Yankee 

Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), LBP-88-19, 

28 NRC 145, 153-56 (1988). 

What may raise significant hazards consideration at one time may, at a later date, 

no longer present significant hazards consideration due to technological advances 

and further study. Carolina Power & Light Co. (Shearon Harris Nuclear Power 

Plant), CLI-01-7, 53 NRC 113, 118 (2001). 
GENERAL MATTERS 8 JUNE 2011 

The Commission also has the inherent authority to exercise its discretionary 

supervisory authority to stay Staff’s actions or rescind a license amendment. See

Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), CLI-01-7, 

53 NRC 113, 119 (2001). 

A license amendment that does not involve, or result in, environmental impacts 

other than those previously considered and evaluated in prior initial decisions for the 

facility in question does not require the preparation and issuance of either an EIS or 

EIA and negative declaration pursuant to 10 C.F.R. § 51.5(b) and (c). Portland 

General Electric Co. (Trojan Nuclear Plant), LBP-78-40, 8 NRC 717, 744-45 (1978), 

aff’d, ALAB-534, 9 NRC 287 (1979). For example, the need for power is not a 

cognizable issue in a license amendment proceeding where it has been addressed 

in previous construction permit and operating license proceedings. Trojan, supra, 

ALAB-534, 9 NRC at 289, cited in Florida Power and Light Co. (Turkey Point 

Nuclear Generating Plant, Units 3 & 4), LBP-81-14, 13 NRC 677, 698 n.49 (1981). 

Where health and safety issues were evaluated during the operating license 

proceeding, a Licensing Board will not admit a contention which provides no new 

information or other basis for reevaluating the previous findings as a result of the 

proposed amendment. Florida Power and Light Co. (St. Lucie Nuclear Power Plant, 

Unit 1), LBP-88-10A, 27 NRC 452, 466 (1988), aff’d on other grounds, ALAB-893, 

27 NRC 627 (1988). 

6.1.5 Primary Jurisdiction to Consider License Amendment in Special Hearing 

Although the usual procedure for amending an existing license involves a licensee’s 

applying for the proposed amendment pursuant to 10 C.F.R. § 50.90, this is not the 

sole and exclusive means for obtaining an amendment. For example, where the 

Commission orders a special hearing on particular issues, the licensee may seek at 

hearing, and the presiding officer has jurisdiction to issue, an amendment to the license 

as long as the modification sought bears directly on the questions addressed in the 

hearing. In such a situation, the licensee need not follow the usual procedure for filing 

an application for an amendment under 10 C.F.R. 50.90. Consolidated Edison Co.

(Indian Point Nuclear Generating Units 1, 2, & 3), ALAB-357, 4 NRC 542 (1976), aff’d, 

CLI-77-2, 5 NRC 13 (1977). Moreover, the presiding officer’s authority to modify 

license conditions in such an instance is not limited by the inadequacies of the 

materials submitted by the parties; the presiding officer may take such action as the 

public interest warrants. Id.

6.1.6 Facility Changes Without License Amendments 

10 C.F.R. § 50.59(a)(1) provides that changes may be made to a production or 

utilization facility without prior NRC approval where such changes do not involve an 

unreviewed safety question, as defined in Section 50.59(a)(2), or a change in technical 

specifications. The determination as to whether a proposed change requires prior 

NRC approval under Section 50.59 apparently rests with the licensee in the first 

instance. Yankee Atomic Electric Company (Yankee Nuclear Power Station), 

CLI-94-3, 39 NRC 95, 101 (1994). 

Where a hearing on a proposed license amendment was pending and the licensee 

embarked on “preparatory work” related to the proposed amendment without prior 
JUNE 2011 GENERAL MATTERS 9 

authorization, the presiding Licensing Board denied an intervenor’s request for a cease 

and desist order with regard to such work on the grounds that there was no showing 

that such work posed any immediate danger to the public health and safety or violated 

NEPA and that such work was done entirely at the licensee’s risk. Portland General 

Electric Co. (Trojan Nuclear Plant), LBP-77-69, 6 NRC 1179, 1184 (1977). 

Subsequently, the Appeal Board indicated that the intervenor’s complaint in this regard 

might more appropriately have been directed, in the first instance, to the Staff under 

10 C.F.R. § 2.206, rather than to the Licensing Board. Portland General Electric Co.

(Trojan Nuclear Plant), ALAB-451, 6 NRC 889, 891 n.3 (1977). 

A low-level waste facility can accept special nuclear material (SNM) for disposal only 

under an NRC license that it holds, not under a state license under which the facility 

has accepted reactor materials and components removed from a nuclear power plant 

site. Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-94-3, 

39 NRC 95, 100-01 (1994). 

Commitments which are part of the licensing basis for a facility must be complied with, 

even though they do not take the form of formal license conditions. Changes to 

commitments of this sort require the filing of a license amendment, which is subject to 

challenge via the hearing process. Private Fuel Storage, L.L.C. (Independent Spent 

Fuel Storage Installation), CLI-03-8, 58 NRC 11, 21 (2003). 

6.2 Amendments to Construction Permit Applications

Three years after the Licensing Board sanctioned a limited work authorization (LWA) and 

before the applicant had proceeded with any construction activity, applicant indicated it 

wanted to amend its construction permit application to focus only on site suitability issues. 

The Appeal Board “vacate[d] without prejudice” the decisions of the Licensing Board 

sanctioning the LWA and remanded the case for proceedings deemed appropriate by the 

Licensing Board upon formal receipt of an early site approval application. Delmarva 

Power & Light Co. (Summit Power Station, Units 1 & 2), ALAB-516, 9 NRC 5 (1979). 

NRC regulations permit amendments to applications, including major amendments, and 

there is no legal basis for a contention challenging an amendment that changes the 

reactor technology referenced in a combined license application. Virginia Electric and 

Power Co., d/b/a Dominion Virginia Power and Old Dominion Electrical Coop. (Combined 

License Application for North Anna Unit 3), LBP-10-17, 72 NRC __ (Sep. 2, 2010)(slip op. 

at 14). 

6.3 Antitrust Considerations

Section 105(c)(9) of the AEA eliminates the requirement that the Commission conduct an 

antitrust review for applications filed after Aug. 8, 2005. Nonetheless, under 

Section 105(b) of the AEA, the Commission must still report potential antitrust violations to 

the Attorney General, and under Section 105(a), the Commission may take appropriate 

action when a court of competent jurisdiction finds that a licensee has violated an antitrust 

law. Moreover, as discussed below, many licenses issued by the Commission contain 

provisions related to antitrust, which remain valid. 

Section 105(c)(6) of the AEA indicates that nothing in the Act was intended to relieve any 

person from complying with the federal antitrust laws. This section does not authorize the 
GENERAL MATTERS 10 JUNE 2011 

NRC to institute antitrust proceedings against licensees, but does permit the Commission 

to impose conditions in a license as needed to ensure that activities under the license will 

not contribute to the creation or maintenance of an anticompetitive situation. Toledo 

Edison Co. (Davis-Besse Nuclear Power Station, Units 1, 2, & 3), LBP-77-7, 5 NRC 452 

(1977). Note that reactors licensed as research and development facilities under 

Section 104.b. of the AEA prior to the 1970 antitrust amendments are excluded from 

antitrust review. Florida Power & Light Co. (St. Lucie Plant, Unit 1; Turkey Point Plant, 

Units 3 & 4), ALAB-428, 6 NRC 221, 225 (1977); Toledo Edison Co. (Davis-Besse 

Nuclear Power Station, Unit 1), ALAB-323, 3 NRC 331 (1976). 

The standard to be employed by the NRC is whether there is a “reasonable probability” 

that a situation inconsistent with the antitrust laws and the policies underlying those laws 

would be created or maintained by the unconditioned licensing of the facility. Alabama 

Power Co. (Joseph M. Farley Nuclear Plant, Units 1 & 2), LBP-77-24, 5 NRC 804 (1977). 

The Commission’s statutory obligation, pursuant to Section 105.c., is not limited to 

investigation of the effects of construction and operation of the facility to be licensed, but 

rather includes an evaluation of the relationship of the specific nuclear facility to the 

applicant’s total system or power pool. Id. This threshold determination as to whether a 

situation inconsistent with the antitrust laws could arise from issuance of the proposed 

license does not involve balancing public interest factors such as public benefits from the 

activity in question, public convenience and necessity, or the desirability of competition. 

Only after the Commission determines that an anticompetitive situation exists or is likely to 

develop under a proposed license are such other factors considered. In exceptional 

cases, the NRC may issue the license, despite the possibility of an anticompetitive 

situation, if it determines that, on balance, issuance of the license would be in the public 

interest. Toledo Edison Co. (Davis-Besse Nuclear Power Station, Units 1, 2, & 3), 

ALAB-385, 5 NRC 621, 632-633 (1977). 

Under Section 105.c. of the AEA, a hearing on whether authorizing construction of a 

nuclear power facility “would create or maintain a situation inconsistent with the antitrust 

laws” is called for if the Attorney General so recommends or an interested party requests 

one and files a timely petition to intervene. When an antitrust hearing is convened, a 

permit to construct the project may not be awarded without the parties’ consent until the 

proceedings are completed. Florida Power & Light Co. (St. Lucie Nuclear Power Plant, 

Unit 2), ALAB-420, 6 NRC 8, 10 (1977). 

One of the policies reflected in Section 105.c. of the AEA is that a government-developed 

monopoly – like nuclear power electricity generation – should not be used to contravene 

the policies of the antitrust laws. Section 105.c. is a mechanism to allow smaller utilities, 

municipals and cooperatives access to the licensing process to pursue their interests in 

the event that larger utility applicants might use a government license to create or 

maintain an anticompetitive market position. Florida Power & Light Co. (St. Lucie Plant, 

Unit 2), CLI-78-12, 7 NRC 939, 946 (1978). 

When the Attorney General recommends an antitrust hearing on a license for a 

commercial nuclear facility, the NRC is required to conduct one. This is the clear 

implication of Section 105.c(5) of the AEA. Where such a hearing is held, the Attorney 

General or his designee may participate as a party in connection with the subject matter of 

his advice. Houston Lighting & Power Co. (South Texas Project, Units 1 & 2), CLI-78-5, 

7 NRC 397, 398 (1978); Toledo Edison Co. (Davis-Besse Nuclear Power Station, Units 1, 

2 & 3) and Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), 
JUNE 2011 GENERAL MATTERS 11 

ALAB-560, 10 NRC 265, 272 (1979). However, where the Licensing Board’s jurisdiction 

over an antitrust proceeding does not rest upon Section 105.c(5), the Justice Department 

must comply with the standards for intervention, including the standards governing 

untimely intervention petitions. Ohio Edison Co. (Perry Nuclear Power Plant, Unit 1) and 

Cleveland Electric Illuminating Co. and Toledo Edison Co. (Perry Nuclear Power Plant, 

Unit 1; Davis-Besse Nuclear Power Station, Unit 1), LBP-91-38, 34 NRC 229, 253-54 

(1991), aff’d in part on other grounds and appeal denied, CLI-92-11, 36 NRC 47 (1992). 

In dealing with antitrust issues, the NRC’s role is something more than that of a neutral 

forum for economic disputes between private parties. If an antitrust hearing is convened, 

it should encompass all significant antitrust implications of the license, not merely the 

complaints of private intervenors. If no one performs this function, the NRC Staff should 

assure that a complete picture is presented to Licensing Boards. Florida Power & Light 

Co. (St. Lucie Plant, Unit 2), CLI-78-12, 7 NRC 939, 949 (1978). 

The antitrust review undertaken by the Commission in licensing the construction of a 

nuclear power plant is, by statute, to determine “whether the activities under the license 

would create or maintain a situation inconsistent with the antitrust laws....” 

Section 105.c(5) of the AEA, 42 U.S.C. § 2135c(5). This means that the licensed 

activities must play some active role in creating or maintaining the anticompetitive 

situation. Put another way, the nuclear power plant must be an actor, an influence, on the 

anticompetitive scene. Florida Power & Light Co. (St. Lucie Plant, Unit 2), ALAB-665, 

15 NRC 22, 32 (1982). 

Where a license is found to create or maintain a situation inconsistent with the antitrust 

laws, the Commission may impose corrective conditions on the license rather than 

withhold it. Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-13, 

7 NRC 583, 597 (1978). 

In making a determination under AEA Section 105.c. about the antitrust implications of a 

licensing action, the Commission must act to ensure that two results do not obtain: 

Activities under the license must not (1) “maintain” a “situation inconsistent with the 

antitrust laws” or (2) “create” such a situation. In making its ultimate determination about 

whether an applicant’s activities under the license will result in a “situation inconsistent 

with the antitrust laws,” the term “maintain” permits the Commission to look at the 

applicant’s past and present competitive performance in the relevant market, whereas the 

word “create” envisions that the Commission’s assessment will be a forward-looking, 

predictive analysis concerning the competitive environment in which the facility will 

operate. See Alabama Power Co. v. NRC, 692 F.2d 1362, 1367-68 (11th Cir. 1982), cert. 

denied, 464 U.S. 816 (1983). Ohio Edison Co. (Perry Nuclear Power Plant, Unit 1) et al., 

LBP-92-32, 36 NRC 269, 288 (1992), aff’d, City of Cleveland v. NRC, 68 F.3d 1361 

(D.C. Cir. 1995). 

Only the NRC is empowered to make the initial determination under Section 105(c) 

whether activities under the license would create or maintain a situation inconsistent 

with the antitrust laws, and if so what license conditions should be required as a remedy. 

Houston Lighting & Power Co. (South Texas Project, Units 1 & 2), LBP-79-27, 

10 NRC 563, 574 (1979). 

In specifying which federal antitrust laws are implicated in an NRC antitrust review, AEA 

Section 105 references all the major provisions governing antitrust regulation, including 
GENERAL MATTERS 12 JUNE 2011 

the Sherman, Clayton and Federal Trade Commission Acts. It is a basic tenet that “the 

antitrust laws seek to prevent conduct which weakens or destroys competition.” See

Toledo Edison Co. (Davis-Besse Nuclear Power Station, Units 1, 2, & 3) et al., ALAB-560, 

10 NRC 265, 279 & n.34 (1979) (principal purpose of Sherman, Clayton and Federal 

Trade Commission Acts is preservation of and encouragement of competition). Ohio 

Edison Co. (Perry Nuclear Power Plant, Unit 1) et al., LBP-92-32, 36 NRC 269, 290 

(1992), aff’d, City of Cleveland v. NRC, 68 F.3d 1361 (D.C. Cir. 1995). 

In order to conduct a Section 105.c. proceeding, it is not necessary to establish a violation 

of the antitrust laws. Any violation of the antitrust laws also meets the less rigorous 

standard of Section 105.c. which is inconsistent with the antitrust laws. Houston Lighting 

& Power Co. (South Texas Project, Units 1 & 2), LBP-79-27, 10 NRC 563, 570 (1979). 

The Commission has a broader authority that encompasses those instances in which 

there is a “reasonable probability” that those laws “or the policies clearly underlying those 

laws” will be infringed. Alabama Power Co., 692 F.2d 1362,1367-68 (11th Cir. 1982), cert. 

denied, 464 U.S. 816 (1983); Ohio Edison Co. (Perry Nuclear Power Plant, Unit 1) et al., 

LBP-92-32, 36 NRC 269, 290 n.54 (1992), aff’d, City of Cleveland v. NRC, 68 F.3d 1361 

(D.C. Cir. 1995). 

A threshold showing of lower cost nuclear power is not required as an indispensable 

prerequisite of retaining antitrust conditions. City of Cleveland v. NRC, 68 F.3d 1361, 

1369 (D.C. Cir. 1995). 

NRC statutory responsibilities under Section 105(c) cannot be impaired or limited by a 

state agency. Houston Lighting & Power Co. (South Texas Project, Units 1 & 2), 

LBP-79-27, 10 NRC 563, 577 (1979). 

The legislative history and language of the Public Utilities Regulatory Policies Act of 

1978 clearly establish that the act was not intended to divest NRC of its antitrust 

jurisdiction. Houston Lighting & Power Co. (South Texas Project, Units 1 & 2), 

LBP-79-27, 10 NRC 563, 577 (1979). 

Once the U.S. Attorney General has withdrawn from a proceeding and permission has 

been granted to the remaining intervenors to withdraw, the Board no longer has 

jurisdiction to entertain an antitrust proceeding under the provisions of the AEA. Florida 

Power & Light Co. (St. Lucie Plant, Unit 2), LBP-82-21, 15 NRC 639, 640-641 (1982). 

6.3.A Application of Antitrust Laws; Market Power 

One of the cardinal precepts of antitrust regulation is that a commercial entity that is 

dominant in the relevant market (even if its dominance is lawfully gained) is 

accountable for the manner in which it exercises the degree of market power that 

dominance affords. See Otter Tail Power Co. v. United States, 410 U.S. 366, 377 

(1973). See also A. Neal, The Antitrust Laws of the United States, at 126 

(2d ed. 1970). Ohio Edison Co. (Perry Nuclear Power Plant, Unit 1) et al., LBP-92-32, 

32 NRC 269, 290 (1992), aff’d, City of Cleveland v. NRC, 68 F.3d 1361 

(D.C. Cir. 1995). 

“Market power” is generally defined as the “power of a firm to affect the price which will 

prevail on the market in which the firm trades.”[cites omitted] If a firm possesses 

market power such that it has a substantial power to exclude competitors by reducing 
JUNE 2011 GENERAL MATTERS 13 

price, then it is considered to have “monopoly power.” If an entity with market 

dominance utilizes its market power with the purpose of destroying competitors or to 

otherwise foreclose competition or gain a competitive advantage, then its conduct will 

violate the antitrust laws, specifically Section 2 of the Sherman Act. See, e.g., 

Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451 (1992); Otter Tail 

Power Co., 410 U.S. 366, 377 (1973). Ohio Edison Co. (Perry Nuclear Power Plant, 

Unit 1) et al.,LBP-92-32, 36 NRC 269, 291 (1992), aff’d, City of Cleveland v. NRC, 

68 F.3d 1361 (D.C. Cir. 1995). 

AEA § 105.c. directs that the focus of the Commission’s consideration during an 

antitrust review must be whether, considering a variety of factors, a nuclear utility has 

market dominance and, if so, given its past (and predicted) competitive behavior, 

whether it can and will use that market power in its activities relating to the operation of 

its licensed facility to affect adversely the competitive situation in the relevant market. 

Ohio Edison Co. (Perry Nuclear Power Plant, Unit 1) et al., LBP-92-32, 36 NRC 269, 

298-99 (1992), aff’d, City of Cleveland v. NRC, 68 F.3d 1361 (D.C. Cir. 1995). 

Under general antitrust principles, what is required relative to a particular competitive 

situation is an analysis of the existence and use of market power among competing 

firms to determine whether anticompetitive conditions exist. This assessment, in turn, 

is based upon a number of different factors that have been recognized as providing 

some indicia of a firm’s competitive potency in the relevant market, including firm size, 

market concentration, barriers to entry, pricing policy, profitability, and past competitive 

conduct. Ohio Edison Co. (Perry Nuclear Power Plant, Unit 1) et al., LBP-92-32, 

36 NRC 269, 291 (1992), aff’d, City of Cleveland v. NRC, 68 F.3d 1361 

(D.C. Cir. 1995). 

Nothing in AEA § 105c, or in the pertinent antitrust laws and cases supports the 

proposition that traditional antitrust market power analysis is inapplicable in the first 

instance when the assessment of the competitive impact of a particular asset (i.e., a 

nuclear facility) is involved. Consistent with the antitrust laws referenced in AEA 

§ 105c, what ultimately is at issue under that provision is not a competitor’s 

comparative cost of doing business, but rather its possession and use of market power. 

And if a commercial entity’s market dominance gives it the power to affect competition, 

how it uses that power – not merely its cost of doing business – remains the locus for 

any antitrust analysis under Section 105c. Ohio Edison Co. (Perry Nuclear Power 

Plant, Unit 1) et al., LBP-92-32, 36 NRC 269, 292 (1992), aff’d, City of Cleveland v. 

NRC, 68 F.3d 1361 (D.C. Cir. 1995). 

6.3.B Application of Antitrust Laws; Remedial Authority 

During an antitrust review under AEA Section 105c, if it can be demonstrated that 

market power has or would be misused, then with cause to believe that the applicant’s 

“activities under the license would create or maintain a situation inconsistent with the 

antitrust laws,” the Commission can intervene to take remedial measures. On the 

other hand, if the Commission reaches a judgment that an otherwise dominant utility 

has not and will not abuse its market power, i.e., that its “activities under the license” 

will not “create or maintain a situation inconsistent with the antitrust laws,” then the 

Commission need not intercede. Ohio Edison Co. (Perry Nuclear Power Plant, Unit 1) 

et al., LBP-92-32, 36 NRC 269, 295 (1992), aff’d, City of Cleveland v. NRC, 

68 F.3d 1361 (D.C. Cir. 1995). 
GENERAL MATTERS 14 JUNE 2011 

In reaching a judgment under AEA Section 105c about a utility’s “activities under the 

license,” the Commission is permitted to undertake a “broad inquiry” into an applicant’s 

conduct. See Alabama Power Co., 692 F.2d 1362, 1368 (11th Cir. 1982), cert. denied, 

464 U.S. 816 (1983). Ohio Edison Co. (Perry Nuclear Power Plant, Unit 1) et al., 

LBP-92-32, 36 NRC 269, 295 (1992), aff’d, City of Cleveland v. NRC, 68 F.3d 1361 

(D.C. Cir. 1995). 

6.3.1 Consideration of Antitrust Matters After the Construction Permit Stage 

The NRC antitrust responsibility does not extend over the full life of a licensed facility 

but is limited to two procedural stages – the construction permit stage and the 

operating license stage. This limitation on NRC jurisdiction extends to the Director of 

Nuclear Reactor Regulation as well as to the rest of the NRC. Florida Power & Light 

Co. (St. Lucie Plant, Unit 1; Turkey Point Plant, Units 3 & 4), ALAB-428, 6 NRC 221, 

226-227 (1977). For reactors which have undergone antitrust review in connection 

with a construction permit application pursuant to Section 105c of the AEA, 

Section 105c(2) governs the question of antitrust review at the operating license stage. 

Antitrust issues may only be pursued at this stage if a finding is made that the 

licensee’s activities have significantly changed subsequent to the construction permit 

review. Houston Lighting & Power Co. (South Texas Project, Units 1 & 2), CLI-77-13, 

5 NRC 1303, 1310 (1977). Where a construction permit antitrust proceeding is under 

way, the antitrust provisions of the AEA effectively preclude the Commission from 

instituting a second antitrust hearing in conjunction with an operating license 

application for the plant. Florida Power & Light Co. (St. Lucie Plant, Unit 2), ALAB-661, 

14 NRC 1117, 1122 (1-981). Where, subsequent to issuance of a construction permit 

and to termination of the jurisdiction of the Licensing Board which considered the 

application, new contractual arrangements give rise to antitrust contentions, such 

contentions cannot be resolved by the original Licensing Board. Houston Lighting & 

Power Co. (South Texas Project, Units 1 & 2), ALAB-381, 5 NRC 582 (1977). The 

Commission’s regulations indicate that the new antitrust concerns should be raised at 

the operating license stage. The Commission Staff could also initiate show cause 

proceedings requiring the licensee to demonstrate why antitrust conditions should not 

be imposed in an amendment to the construction permit. Id. Where the petitioner who 

raises the antitrust contentions is a co-licensee, 10 C.F.R. § 50.90 permits the 

petitioner to seek an amendment to the construction permit which would impose 

antitrust considerations. Id.

The NRC may facilitate operating license stage antitrust review by waiving the 

requirements of 10 C.F.R. § 50.30(d) and § 50.34(b) (which require operating license 

applications to be accompanied by the filing of an FSAR). This permits operating 

license antitrust review at a much earlier stage prior to completion of the FSAR. 

Houston Lighting & Power Co. (South Texas Project, Units 1 & 2), CLI-77-13, 5 NRC 

1303, 1319 (1977). 

AEA §105 and its implementing regulations contemplate that mandatory antitrust 

review be conducted early in the construction permit process. Florida Power & Light 

Co. (St. Lucie Plant, Unit 2), CLI-78-12, 7 NRC 939, 946 (1978). 
JUNE 2011 GENERAL MATTERS 15 

Antitrust review might be conducted out-of-time if significant doubts were cast on the 

adequacy of the initial antitrust review. Florida Power & Light Co. (St. Lucie Plant, 

Unit 2), CLI-78-12, 7 NRC 939, 945 (1978). 

Despite the fact that further antitrust review following issuance of a construction permit 

will usually await the operating license stage of review, a construction permit 

amendment may give rise to an additional antitrust review prior to the operating license 

stage. An application for a construction permit amendment that would add new 

co-owners to a plant is within the scope of the phrase in Section 105.c(1) of the AEA 

requiring antitrust review of “any license application.” As such, it triggers an 

opportunity for intervention based on the antitrust aspects of adding new co-owners. 

To hold otherwise would subvert congressional intent by insulating applicants coming 

in by way of amendment from antitrust investigation. Moreover, because a joint 

venture might raise antitrust problems that would not exist if the joint applicants were 

considered individually, the Licensing Board has jurisdiction to consider intervention 

petitions and antitrust issues filed in connection with a new application for joint 

ownership. Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-13, 

7 NRC 583, 588 (1978). 

A narrower, second antitrust review is to occur at the operating license stage, if and 

only if, “The Commission determines such review is advisable on the ground that 

significant changes in the licensee’s activities or proposed activities have occurred 

subsequent to the previous review by the Attorney General and the Commission...” in 

connection with the construction permit for the facility. South Carolina Electric & Gas 

Co. (Virgil C. Summer Nuclear Station, Unit 1), CLI-80-28, 11 NRC 817, 823 (1980). 

The ultimate issue in the operating license stage antitrust review is the same as for the 

construction permit review: would the contemplated license create a situation 

inconsistent with the antitrust laws or the policies underlying those laws. South 

Carolina Electric & Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), CLI-80-28, 

11 NRC 817, 824 (1980). 

To trigger antitrust review at the operating license stage, the significant changes 

specified by Section 105.c. of the AEA must (1) have occurred since the previous 

antitrust review of the licensee; (2) be reasonably attributable to the licensee; and 

(3) have antitrust implications that would warrant Commission remedy. This requires 

an examination of (a) whether an antitrust review would be likely to conclude that the 

situation as changed has negative antitrust implications and (b) whether the 

Commission has available remedies. South Carolina Electric & Gas Co.

(Virgil C. Summer Nuclear Station, Unit 1), CLI-80-28, 11 NRC 817, 824-25 (1980). 

In determining whether significant changes have occurred which require referral of the 

matter to the Attorney General, the Commission must find: (1) that there is a factual 

basis for the determination; and (2) that the alleged changes are reasonably apparent. 

South Carolina Electric & Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), 

CLI-80-28, 11 NRC 817, 824-25 (1980). 

Although the NRC regulations do not specify a period during which requests for a 

significant change determination will be timely, the relevant question in determining 

timeliness is whether the request has followed sufficiently promptly the operating 
GENERAL MATTERS 16 JUNE 2011 

license application. South Carolina Electric & Gas Co. (Virgil C. Summer Nuclear 

Station, Unit 1), CLI-80-28, 11 NRC 817, 829 (1980). 

6.3.1.1 Limitations on Antitrust Review After Issuance of Operating License 

Congress did not invest the NRC with ongoing antitrust responsibility during the 

period subsequent to issuance of an operating license and the NRC’s authority in 

this area terminates at that point. Houston Lighting & Power Co. (South Texas 

Project, Units 1 & 2), CLI-77-13, 5 NRC 1303, 1317 (1977). Congress did not 

envision for the NRC a broad, ongoing antitrust enforcement role but, rather, 

established specific procedures (and incentives) intended to tie antitrust review to 

the two-step licensing process. Florida Power & Light Co. (St. Lucie Plant, Unit 2), 

CLI-78-12, 7 NRC 939, 945 (1978). However, a Licensing Board has determined 

that, pursuant to its general authority to amend a facility license at the request of the 

licensee, AEA § 189a and 10 C.F.R. § 50.90, it had jurisdiction to consider the 

licensees’ request to suspend the antitrust conditions in their operating licenses. 

Ohio Edison Co. (Perry Nuclear Power Plant, Unit 1) et al., LBP-91-38, 34 NRC 229, 

239-44 (1991), aff’d in part and appeal denied, CLI-92-11, 36 NRC 47 (1992), 

subsequent history, LBP-92-32, 36 NRC 269, 295 (1992), aff’d, City of Cleveland v. 

NRC, 68 F.3d 1361 (D.C. Cir. 1995). 

Under license renewal provisions of the AEA, an antitrust review is not required for 

applications for renewal of nuclear plant commercial licenses or research and 

development nuclear plant licenses. The NRC acted permissibly in limiting its 

antitrust review duties to situations in which it issued new operating licenses. 

American Public Power Assoc. v. NRC, 990 F.2d 1310, 1312-13 (D.C. Cir. 1993). 

The Commission has concluded, upon a close analysis of the AEA, that its antitrust 

reviews of post-operating license transfer applications cannot be squared with the 

terms or intent of the Act and that the Commission therefore lacks authority to 

conduct them. But even if the Commission possesses some general residual 

authority to continue to undertake such antitrust reviews, it is certainly true that the 

Act nowhere requires them, and the Commission thinks it sensible from a legal and 

policy perspective to no longer conduct them. Kansas Gas and Electric Co. (Wolf 

Creek Generating Station, Unit 1), CLI-99-19, 49 NRC 441, 460 (1999). In the Wolf 

Creek Case, the Commission concluded that the competitive and regulatory 

landscape has dramatically changed since 1970 in favor of those electric utilities 

who are the intended beneficiaries of the Section 105 antitrust reviews, especially in 

connection with acquisitions of nuclear power facilities and access to transmission 

services. The Commission concludes that the duplication of other antitrust reviews 

makes no sense and only impedes nationwide efforts to streamline the federal 

government. The Commission subsequently codified its Wolf Creek decision by 

rulemaking, Antitrust Review Authority: Clarification, 65 Fed. Reg. 44,649 

(July 19, 2000); see also Pacific Gas & Electric Co. (Diablo Canyon Power Plant, 

Units 1 & 2), CLI-03-2, 57 NRC 19, 34-35 (2003), vacated as moot sub nom.

Northern Calif. Power Agency v. NRC, 393 F.3d 223 (D.C. Cir. 2004). 

NRC antitrust review of post-operating license transfers is unnecessary from both a 

legal and policy perspective. GPU Nuclear, Inc., et al. (Oyster Creek Nuclear 

Generating Station), CLI-00-6, 51 NRC 193, 210 (2000) (responding to fear that 
JUNE 2011 GENERAL MATTERS 17 

corporations “may be stretched too thin in their ability to operate a multitude of 

nuclear reactors”). 

The fact that a particular license transfer may have antitrust implications does not 

remove it from the NEPA categorical exclusion. In any event, because the AEA 

does not require, and arguably, does not even allow, the Commission to conduct 

antitrust evaluations of license transfer application, any “failure” of the Commission 

to conduct such an evaluation cannot constitute a federal action warranting a NEPA 

review. Power Authority of the State of New York, et al. (James FitzPatrick Nuclear 

Power Plant; Indian Point Nuclear Generating Unit 3), CLI-00-22, 52 NRC 266 at 

30, n.55 (2000), quoting Vermont Yankee Nuclear Power Corp. (Vermont Yankee 

Nuclear Power Station), CLI-00-20, 52 NRC 151, 167-68 (2000). 

The Commission no longer conducts antitrust reviews in license transfer 

proceedings. Power Authority of the State of New York, et al. (James FitzPatrick 

Nuclear Power Plant; Indian Point Nuclear Generating Unit 3), CLI-00-22, 52 NRC 

266, 318 (2000), citing Vermont Yankee Nuclear Power Corp. (Vermont Yankee 

Nuclear Power Station), CLI-00-20, 52 NRC 151, 168, 174 (2000); GPU Nuclear, 

Inc. (Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 210 (2000); 

Kansas Gas & Electric Co. (Wolf Creek Generating Station, Unit 1), CLI-99-19, 49 

NRC 441 (1999); Final Rule, Antitrust Review Authority: Clarification, 65 Fed. Reg. 

44,649 (July 19, 2000). 

6.3.2 Intervention in Antitrust Proceedings 

The Commission’s regulations make clear that an antitrust intervention petition: 

(1) must first describe a situation inconsistent with the antitrust laws; (2) would be 

deficient if it consists of a description of a situation inconsistent with the antitrust laws, 

however well pleaded, accompanied by a mere paraphrase of the statutory language 

alleging that the situation described therein would be created or maintained by the 

activities under the license; and (3) must identify the specific relief sought and whether, 

how and the extent to which the request fails to be satisfied by the license conditions 

proposed by the Attorney General. The most critical requirement of an antitrust 

intervention petition is an explanation of how the activities under the license would 

create or maintain an anticompetitive situation. Florida Power & Light Co. (St. Lucie 

Plant, Unit 2), ALAB-665, 15 NRC 22, 29 (1982), citing Kansas Gas & Electric Co.

(Wolf Creek Generating Station, Unit 1), ALAB-279, 1 NRC 559, 574-75 (1975). 

Although Section 105 of the AEA encourages petitioners to voice their antitrust claims 

early in the licensing process, reasonable late requests for antitrust review are not 

precluded so long as they are made concurrent with licensing. Licensing Boards must 

have discretion to consider individual claims in a way which does justice to all of the 

policies which underlie Section 105.c. and the strength of particular claims justifying 

late intervention. Florida Power & Light Co. (St. Lucie Plant, Unit 2), CLI-78-12, 7 NRC 

939, 946 (1978). 

The criteria of 10 C.F.R. § 2.309 for late petitions are as appropriate for evaluation of 

late antitrust petitions as in health, safety and environmental licensing, but the 

Section 2.309 (formerly Section 2.714) criteria should be more stringently applied to 

late antitrust petitions, particularly in assessing the good cause factor. Florida Power & 

Light Co. (St. Lucie Plant, Unit 2), CLI-78-12, 7 NRC 939, 946 (1978). 
GENERAL MATTERS 18 JUNE 2011 

Late requests for antitrust review hearings may be entertained in the period between 

the filing of an application for a construction permit – the time when the advice of the 

Attorney General is sought – and its issuance. However, as the time for issuance of 

the construction permit draws closer, Licensing Boards should scrutinize more closely 

and carefully the petitioner’s claims of good cause. Florida Power & Light Co.

(St. Lucie Plant, Unit 2), CLI-78-12, 7 NRC 939, 946 (1978). 

Where an antitrust petition is so late that relief will divert from the licensee needed and 

difficult-to-replace power, the Licensing Board may shape any relief granted to meet 

this problem. Florida Power & Light Co. (St. Lucie Plant, Unit 2), CLI-78-12, 7 NRC 

939, 948 (1978). 

Where a late petition for intervention is involved, the factors set forth within 

10 C.F.R. § 2.309(c) (formerly § 2.714(a)(1)) must be balanced and applied before 

petitions may be granted; the test becomes increasingly vigorous as time passes. Of 

particular significance is the availability of other remedies for the late petitioner where 

remedies are available before the Federal Energy Regulatory Commission and 

petitioner has not shown that the remedy is insufficient. Florida Power & Light Co.

(St. Lucie Plant, Unit No. 2), LBP-81-28, 14 NRC 333, 336, 338 (1981). 

6.3.3 Discovery in Antitrust Proceedings 

The Noerr-Pennington doctrine will operate to immunize those legitimately petitioning 

the government, or exercising other First Amendment rights, from liability under the 

antitrust laws, even where the challenged activities were conducted for purposes 

condemned by the antitrust laws. Florida Power & Light Co. (St. Lucie Plant, Unit 2), 

LBP-79-4, 9 NRC 164, 174 (1979). 

Material on applicant’s activities designed to influence legislation and requested 

through discovery is relevant and may reasonably be calculated to lead to the 

discovery of admissible evidence, and therefore is not immune from discovery. The 

Noerr-Pennington cases, on which applicant had based its argument, go to the 

substantive protection of the First Amendment and do not immunize litigants from 

discovery. Appropriate discovery into applicant’s legislative activities must be 

permitted, and the information sought to be discovered may well be directly admissible 

as evidence. Florida Power & Light Co. (St. Lucie Plant, Unit 2), LBP-79-4, 9 NRC 

164, 175 (1979). 

6.3.3.1 Discovery Cutoff Dates for Antitrust Proceedings 

The imposition of the cutoff date for discovery is for the purpose of making a 

preliminary ruling about relevancy for discovery. The cutoff date is only a date after 

which, in the dimension of time, relevancy may be assumed for discovery purposes. 

Requests for information from before the cutoff date must show that the information 

requested is relevant in time to the situation to be created or maintained by a 

licensed activity. If the information sought is relevant, and not otherwise barred, it 

may be discovered, no matter how old, upon a reasonable showing. This is entirely 

consistent with 10 C.F.R. § 2.705(b) (formerly § 2.740(b)) and Rule 26(b) which are 

in turn consistent with the Manual for Complex Litigation, Part 1, § 4.30. Florida 
JUNE 2011 GENERAL MATTERS 19 

Power & Light Co. (St. Lucie Plant, Unit No. 2), LBP-79-4, 9 NRC 164, 169-70 

(1979). 

In antitrust proceedings, the relevant period for discovery must be determined by the 

circumstances of the alleged situation inconsistent with the antitrust laws, not the 

planning of the nuclear facility. Florida Power & Light Co. (St. Lucie Plant, Unit 2), 

LBP-79-4, 9 NRC 164, 168 (1979). 

The standard for allowing discovery requests predating a set cutoff date is that there 

be a reasonable possibility of relevancy; it is not necessary to show relevancy plus 

good cause. Florida Power & Light Co. (St. Lucie Plant, Unit 2), LBP-79-4, 9 NRC 

164, 172 (1979). 

6.4 Attorney Conduct

6.4.1 Practice Before Commission 

10 C.F.R. § 2.314 (formerly § 2.713) contains general provisions with respect to 

representation by counsel in an adjudicatory proceeding, standards of conduct and 

suspension of attorneys. 

Counsel appearing before all NRC adjudicatory tribunals “have a manifest and ironclad obligation of candor.” This obligation includes the duty to call to the tribunal’s 

attention facts of record which cast a different light upon the substance of arguments 

being advanced by counsel. Public Service Co. of Oklahoma (Black Fox Station, 

Units 1 & 2), ALAB-505, 8 NRC 527, 532 (1978). 

A lawyer citing legal authority to an adjudicatory board in support of a position, with 

knowledge of other applicable authority adverse to that position, has a clear 

professional obligation to inform the board of the existence of such adverse authority. 

Washington Public Power Supply System (WPPSS Nuclear Project No. 3), ALAB-747, 

18 NRC 1167, 1174 n.21 (1983), citing Rule 3.3(a)(3) of the American Bar Association 

(ABA) Model Rules of Professional Conduct (1983). 

Lawyers shall represent their clients “zealously within the bounds of the law.” 

Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-691, 16 NRC 897, 916, 918 

(1982). 

In judging the propriety of a lawyer’s participation in the preparation of testimony of a 

witness, the key factor is not who originated the words that comprise the testimony, but 

whether the witness can truthfully attest that the statement is complete and accurate to 

the best of his or her knowledge. Consumers Power Co. (Midland Plant, Units 1 & 2), 

ALAB-691, 16 NRC 897, 918 (1982). 

Counsel have an obligation to keep adjudicatory boards informed of the material facts 

which are relevant to issues pending before them. University of California (UCLA 

Research Reactor), LBP-84-22, 19 NRC 1383, 1401 (1984), citing Consumers Power 

Co. (Midland Plant, Units 1 & 2), 16 NRC 897, 910 (1982); Tennessee Valley Authority

(Browns Ferry Nuclear Plant, Units 1, 2 & 3), ALAB-677, 15 NRC 1387 (1982); 

Consumers Power Co. (Midland Plant, Units 1& 2), ALAB-458, 7 NRC 155, 172 n.64 

(1978). 
GENERAL MATTERS 20 JUNE 2011 

A party’s obligation to disclose material information extends to, and is often the 

responsibility of, counsel, especially in litigation involving highly complex technology 

where many decisions regarding materiality of information can only be made jointly by 

a party and its counsel. University of California (UCLA Research Reactor), LBP-84-22, 

19 NRC 1383, 1405 (1984). 

Counsel’s obligations to disclose all relevant and material factual information to the 

Licensing Board under the AEA are not substantially different from those laid out by the 

ABA’s Model Rules of Professional Conduct. In discharging his obligations, counsel 

may verify the accuracy of factual information with his client or verify the accuracy of 

the factual information himself. University of California (UCLA Research Reactor), 

LBP-84-22, 19 NRC 1383, 1406-07 (1984). 

The Commission’s Rules of Practice require parties and their representatives to 

conduct themselves with honor, dignity, and decorum as they should before a court of 

law. Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-691, 16 NRC 897, 916 

(1982), citing 10 C.F.R. 2.314(a) (formerly 2.713(a)). See Hydro Resources, Inc., 

LBP-98-4, 47 NRC 17 (1998). A letter from an intervenor’s counsel to an applicant’s 

counsel which is reasonably perceived as a threat to seek criminal sanctions against 

the applicant’s employees or to seek disciplinary action by the Bar against the 

applicant’s attorneys in order to compel the applicant to negotiate the cancellation of its 

facility does not meet this standard. Houston Lighting & Power Co. (South Texas 

Project, Units 1 & 2), LBP-86-15, 23 NRC 595, 668-670 (1986). 

Counsel’s derogatory description of the NRC Staff constitutes intemperate, even 

disrespectful, rhetoric and is wholly inappropriate in legal pleadings. Curators of the 

University of Missouri, CLI-95-17, 42 NRC 229, 232-33 (1995). 

Gamesmanship and “sporting conduct” between or among lawyers and parties is not 

condoned in NRC proceedings. Consumers Power Co. (Midland Plant, Units 1 & 2), 

ALAB-691, 16 NRC 897, 919 (1982). 

Attorneys practicing before Licensing and Appeal Boards are to conduct themselves in 

a dignified and professional manner and are not to engage in name calling with respect 

to opposing counsel. Northern Indiana Public Service Co. (Bailly Generating Station, 

Nuclear-1), ALAB-204, 7 AEC 835 (1974). In this vein, Licensing Boards have a duty 

to regulate the course of hearings and the conduct of participants in the interest of 

insuring a fair, impartial, expeditious and orderly adjudicatory process, 

10 C.F.R. § 2.319(g) (formerly § 2.718(e)); Consumers Power Co. (Midland Plant, 

Units 1 & 2), ALAB-417, 5 NRC 1442, 1445-46 (1977), and the Commission has the 

authority to disqualify an attorney or an entire law firm for unprofessional conduct, 

whatever its form. Toledo Edison Co. (Davis-Besse Nuclear Power Station), 

ALAB-332, 3 NRC 785 (1976). 

The Code of Professional Responsibility considerably restricts the comments that 

counsel representing a party in an administrative hearing may make to the public. 

Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), 

ALAB-592, 11 NRC 744, 750 (1980). The ABA has since replaced the Code of 

Professional Responsibility with the Model Rules of Professional Responsibility, which 

provide attorneys with significantly greater latitude in discussing pending adjudications 
JUNE 2011 GENERAL MATTERS 21 

in public forums. Compare Model Rules of Prof’l Conduct R. 3.6 (2010) (prohibiting 

attorneys from making public extrajudicial statements that “the lawyer knows or 

reasonably should know will be disseminated by means of public communication and 

will have a substantial likelihood of materially prejudicing an adjudicative proceeding”) 

with Model Code of Prof’l Responsibility DR 7-107 (1981) (generally prohibiting 

attorneys from making extrajudicial statements that would be “reasonably likely to 

interfere” with a fair adjudication). See also Lonnie T. Brown, Jr., “’May it Please the 

Camera,...I Mean the Court’” – An Intrajudicial Solution to an Extrajudicial Problem,” 

39 Ga. L. Rev. 83, 94-112 (2004) (discussing the evolution of Model Rule 3.6). 

Parties should not impugn one another’s integrity without first submitting supporting 

evidence. Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Units 1 & 2), 

LBP-82-5A, 15 NRC 216 (1982). 

6.4.2 Disciplinary Matters re Attorneys 

The Commission has the authority to disqualify an attorney or an entire law firm for 

unprofessional conduct, whatever its form. Toledo Edison Co. (Davis-Besse Nuclear 

Power Station), ALAB-332, 3 NRC 785 (1976). 10 C.F.R. § 2.314(c) (formerly 

§ 2.713(c)) lists various acts or omissions by an attorney which would justify his 

suspension from further participation in a proceeding. That section also sets forth the 

procedure to be followed by the presiding officer in issuing an order barring the 

attorney from participation. 

A Licensing Board 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 shall be guilty of disorderly, 

disruptive, or contemptuous conduct. Texas Utilities Generating Co. (Comanche Peak 

Steam Electric Station, Units 1 & 2), LBP-82-87, 16 NRC 1195, 1201 (1982); Entergy 

Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), CLI-07-28, 66 

NRC 275 (2007). 

Where a party’s representative (or counsel) engages in repeated disregard of the 

Commission’s practices and procedures, disciplinary action may include summary 

rejection (without referral to the Commission or Licensing Boards) of future pleadings 

under such representative’s signature that do not conform with all procedural 

requirements. Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, 

Units 2 & 3), CLI-06-4, 63 NRC 32, 38-39 (2006). 

An intervenor’s generalized allegations of prejudice resulting from the submission of an 

alleged ex parte communication by applicant’s counsel to a Board are insufficient to 

support a motion to disqualify counsel. The intervenor must demonstrate how specific 

Board rulings have been prejudiced by the submission of the ex parte communication. 

Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), CLI-86-18, 

24 NRC 501, 504-05 (1986). 

Petitions which raise questions about the ethics and reputation of another member of 

the Bar should only be filed after careful research and deliberation. Moreover, 

although ill feeling understandably results from any petition for disciplinary action, 

retaliation in kind should not be the routine response. Cincinnati Gas & Electric Co.
GENERAL MATTERS 22 JUNE 2011 

(William H. Zimmer Nuclear Power Station, Unit 1), CLI-82-36, 16 NRC 1512, 1514 n.1 

(1982). 

A party’s lack of resources does not excuse its baseless and undocumented charges 

against the integrity and professional responsibility of counsel for an opposing party. 

Houston Lighting & Power Co. (South Texas Project, Units 1 & 2), LBP-85-45, 22 NRC 

819, 828 (1985). 

The Commission has no interest in general matters of attorney discipline and chooses 

to focus instead on the means necessary to keep its judicatory proceedings orderly and 

to avoid unnecessary delays. Cincinnati Gas & Electric Co. (William H. Zimmer 

Nuclear Power Station, Unit 1), CLI-82-36, 16 NRC 1512, 1514 n.1 (1982), citing

45 Fed. Reg. 3,594 (1980). 

While the Commission has inherent supervisory power over all agency personnel and 

proceedings, it is not necessarily appropriate to bring any and all matters to the 

Commission in the first instance. Under 10 C.F.R. § 2.314 (formerly § 2.713), where a 

complaint relates directly to a specified attorney’s actions in a proceeding before a 

Licensing Board, that complaint should be brought to the Board in the first instance if 

correction is necessary for the integrity of the proceedings. Cincinnati Gas & Electric 

Co. (William H. Zimmer Nuclear Power Station, Unit 1), CLI-82-36, 16 NRC 1512, 1514 

n.1 (1982).

6.4.2.1 Jurisdiction of Special Board re Attorney Discipline 

The Special Board appointed to consider the disqualification issue has the ultimate 

responsibility as to that decision. The Licensing Board before which the 

disqualification question was initially raised should determine only whether the 

allegations of misconduct state a case for disqualification and should refer the case 

to the Special Board if they do. After the Special Board’s decision, the Licensing 

Board merely carries out the ministerial duty of entering an order in accordance with 

the Special Board’s decision. Toledo Edison Co. (Davis-Besse Nuclear Power 

Station), ALAB-332, 3 NRC 785 (1976). 

6.4.2.2 Procedures in Special Disqualification Hearings re Attorney Conduct 

The attorney or law firm accused of misconduct is entitled to a full hearing on the 

matter. The Commission’s discovery rules are applicable to the proceeding and all 

parties have the right to present evidence and cross-examine witnesses. The 

burden of proof is on the party moving for disqualification and the Special Board’s 

decision must be based on a preponderance of the evidence. Toledo Edison Co.

(Davis-Besse Nuclear Power Station), ALAB-332, 3 NRC 785 (1976). 

In general, the doctrine of collateral estoppel applies to disqualification proceedings. 

An earlier judicial decision would be entitled to collateral estoppel effect unless 

giving it effect would intrude upon the Commission’s ability to ensure the orderly and 

proper prosecution of its internal proceedings. Toledo Edison Co. (Davis-Besse 

Nuclear Power Station, Units 1, 2, & 3), ALAB-378, 5 NRC 557 (1977). As to costs 

incurred from an attorney discipline proceeding, there is no basis on which the NRC 

can reimburse a private attorney for out-of-pocket expenses in connection with the 

termination, and settlement of a special proceeding brought to investigate 
JUNE 2011 GENERAL MATTERS 23 

misconduct charges against a private attorney and NRC Staff attorneys. 

Consumers Power Co. (Midland Plant, Units 1 & 2), CLI-79-3, 9 NRC 107, 109 

(1979). 

6.4.2.3 Conflict of Interest 

Disqualification of an attorney or law firm is appropriate where the attorney formerly 

represented a party whose interests were adverse to his present client in a related 

matter. The aggrieved former client need not show that specific confidences were 

breached but only that there is a substantial relationship between the issues in the 

pending action and those in the prior representation. Toledo Edison Co. (DavisBesse Nuclear Power Station, Units 1, 2 & 3), ALAB-332, 3 NRC 785 (1976). 

A perceived bias in an attorney’s view of a proceeding is distinguishable from a 

situation where there is an attorney conflict of interest of a type recognized in law to 

compromise counsel’s ability to represent his client, e.g., that he had previously 

represented another party in the proceeding, or had a financial interest in common 

with another party, or the like. Cincinnati Gas & Electric Co. (William H. Zimmer 

Nuclear Power Station, Unit 1), CLI-82-36, 16 NRC 1512, 1515 (1982). 

An attorney for a party in an NRC proceeding should discontinue his or her 

representation of the client when it becomes apparent that the attorney will be called 

to testify as a necessary witness in the proceeding. However, an attorney will not 

be disqualified when it is shown that the client would suffer substantial hardship 

because of the distinctive value of the attorney. A party may waive the possible 

disqualification of its attorney if the opposing parties are not thereby prejudiced. 

Houston Lighting & Power Co. (South Texas Project, Units 1 & 2), LBP-85-19, 

21 NRC 1707, 1717-20 (1985), citing DR 5-101(B)(4), DR 5-102(A) and (B) of the 

Code of Professional Responsibility, and Model Rule 3.7(a)(3) of the ABA Model 

Rules of Professional Conduct. 

In order for an attorney for a party to be disqualified for an apparent conflict of 

interest, there must be a showing beyond a mere assumption that there is a 

significant possibility of serious misconduct. “A ‘presumption of regularity attaches 

to the actions of Government agencies.’ Absent ‘clear evidence to the contrary,’ we 

presume that public officers will ‘properly discharge[] their official duties.’” U.S. 

Dept. of Energy (High-Level Waste Repository), CLI-08-11, 67 NRC 379, 384 

(2008). 

6.5 Communications Between Staff/Applicant/Other Parties/Adjudicatory Bodies

During the course of an ongoing adjudication, Commission regulations restrict 

communications between the Commission adjudicatory employees and certain employees 

within the NRC who are participating in the proceeding or any person outside the NRC, 

with respect to information relevant to the merits of an adjudicatory proceeding. 

Commission adjudicatory employees include the Commissioners, their immediate Staff, 

and other employees advising the Commission on adjudicatory matters, the Licensing 

Board and their immediate Staffs. See 10 C.F.R. §§ 2.347, 2.348 (formerly §§ 2.780, 

2.781). Employees “participating in a proceeding” include those engaged in the 

performance of any investigative or litigating function in the proceeding or in a factually 

related proceeding. See 10 C.F.R. § 2.348(a) (formerly § 2.781(a)). Communications 
GENERAL MATTERS 24 JUNE 2011 

between Commission adjudicatory employees and other NRC employees are subject to 

the “separation of functions” restrictions in 10 C.F.R. § 2.348 (formerly § 2.781). 

Communications between Commission adjudicatory employees and any person outside 

the NRC are subject to the ex parte restrictions in 10 C.F.R. § 2.347 (formerly § 2.780). 

Although the separation of functions and ex parte contact restrictions are subject to 

different regulations, case law discussing prohibited communications in the context of one 

situation may be equally applicable to the other. Thus, depending on the issue, it may be 

helpful or necessary to review case law arising in both areas. 

6.5.1 Ex Parte Communications Rule 

10 C.F.R. § 2.347 (formerly § 2.780) sets forth the applicable rules with respect to 

ex parte (off-the-record) communications involving NRC personnel who exercise quasijudicial functions with respect to the issuance, denial, amendment, transfer, renewal, 

modification, suspension or revocation of a license or permit. In general, the regulation 

prohibits ex parte communications with Commissioners, members of their immediate 

Staffs, NRC officials and employees who advise the Commissioners in the exercise of 

their quasi-judicial functions, and Licensing Board members and their immediate staffs. 

The ex parte rule proscribes litigants’ discussing, off-the record, matters in litigation 

with members of the adjudicatory board. The rule does not apply to undisputed issues 

in contested proceedings and uncontested mandatory proceedings. 10 C.F.R. 

§ 2.347(f)(5). 

It does not apply to discussions between and among the parties, between the NRC 

Staff and the applicant or between the Staff, applicant, other litigants and third parties 

(including state officials and federal agencies) not involved in the proceeding. Public 

Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), 

ALAB-493, 8 NRC 253, 269 (1978). The NRC Staff does not advise the Commission 

or the Boards. The Staff is a separate and distinct entity that participates as a party in 

a proceeding and may confer with the other parties. Philadelphia Electric Co. (Limerick 

Generating Station, Units 1 & 2), ALAB-785, 20 NRC 848, 883 n.161 (1984). 

The ex parte rule relates only to discussions of any substantive matter at issue in a 

proceeding on the record. It does not apply to discussions of procedural matters, such 

as extensions of time for filing of affidavits. Consumers Power Co. (Big Rock Point 

Plant), LBP-82-8, 15 NRC 299, 336 (1982). See, e.g., Metropolitan Edison Co.

(Three Mile Island Nuclear Station, Unit 1), CLI-83-5, 17 NRC 331, 332 (1983), citing

10 C.F.R. § 2.347(a) (formerly § 2.780(a)). 

Nothing in the Commission’s ex parte rule pursuant to 10 C.F.R. § 2.347 (formerly 

§ 2.780) precludes conversations among parties, none of whom is a decisionmaker in 

the licensing proceeding. Southern California Edison Co. (San Onofre Nuclear 

Generating Station, Units 2 & 3), ALAB-680, 16 NRC 127, 144 (1982). See also

Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 & 3), 

ALAB-717, 17 NRC 346, 378 (1983). 

Generic discussions of general health and safety problems and responsibilities of the 

Commission not arising from or directly related to matters in adjudication are not 
JUNE 2011 GENERAL MATTERS 25 

ex parte. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), 

CLI-83-3, 17 NRC 72, 74 (1983), citing 10 C.F.R. 2.347 (formerly 2.780(d)). 

Regarding a prohibition on ex parte contacts, the ex parte rule is not properly invoked 

where in an enforcement matter the licensee is complying with Staff’s order and has 

not sought a hearing, nor is a petition for an enforcement action sufficient to invoke the 

provisions of 10 C.F.R. § 2.347 (formerly § 2.780). Cincinnati Gas & Electric Co.

(William H. Zimmer Nuclear Power Station, Unit 1), CLI-83-4, 17 NRC 75, 76 (1983). 

The Staff’s communication of the results of its reviews, through public filings served on 

all parties and the adjudicatory boards, does not constitute an ex parte communication. 

Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-738, 

18 NRC 177, 197 n.39 (1983), rev’d in part on other grounds, CLI-85-2, 21 NRC 282 

(1985). 

In determining whether an ex parte communication has so tainted the decisionmaking 

process as to require vacating a Board’s decision, the Commission has evaluated the 

following factors: the gravity of the ex parte communication; whether the contacts 

could have influenced the agency’s decision; whether the party making the contacts 

benefited from the Board’s final decision; whether the contents of the communication 

were known to the other parties to the proceeding; and whether vacating the Board’s 

decision would serve a useful purpose. Philadelphia Electric Co. (Limerick Generating 

Station, Units 1 & 2), CLI-86-18, 24 NRC 501, 506 (1986), citing Professional Air Traffic 

Controllers Organization v. Federal Labor Relations Authority, 685 F.2d 547, 564-565 

(D.C. Cir. 1982). 

6.5.2 “Separation of Functions” Rules 

Communications between NRC employees advising the Commission on adjudicatory 

matters and NRC employees participating in adjudicatory proceedings on behalf of the 

Staff are subject to the restrictions in 10 C.F.R. § 2.348(a) (formerly § 2.781(a)). 

Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-96-5, 43 NRC 53, 

56-57 (1996). A separation of functions violation is “not a concern if it does not reach 

the ultimate decision maker.” CLI-96-5, 43 NRC at 57 (quoting Press Broadcasting 

Co., Inc v. FCC, 59 F.3d 1365, 1369 (D.C. Cir. 1995)). 

The Commission retains the power, pursuant to 10 C.F.R. § 2.206(c), to consult with 

the NRC Staff on a formal or informal basis regarding the institution of enforcement 

proceedings. See Yankee Atomic Electric Co. (Yankee Rowe Nuclear Power Station), 

CLI-91-11, 34 NRC 3, 6 (1991). 

Separation of functions does not apply to uncontested proceedings or to an undisputed 

issue in contested initial license proceedings. 10 C.F.R. § 2.348(d)(3). 

6.5.3 Telephone Conference Calls 

A conference call between an adjudicatory board and some but not all of the parties 

should be avoided except in the case of the most dire necessity. Such calls must be 

avoided even where no substantive matters are to be discussed and the rule 

precluding ex parte communications is, therefore, not technically violated. Puerto Rico 
GENERAL MATTERS 26 JUNE 2011 

Water Resources Authority (North Coast Nuclear Plant, Unit 1), ALAB-313, 3 NRC 94 

(1976). 

In general, where substantive matters are to be considered in a prehearing conference 

call, all parties must be on the line unless that representation has been waived. 

Promptly after any prehearing conference carried on via telephone during which rulings 

governing the conduct of future proceedings have been made, Licensing Boards must 

draft and enter written orders confirming those rulings. Pacific Gas & Electric Co.

(Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-334, 3 NRC 809 (1976). See

10 C.F.R. § 2.329(d) (formerly § 2.752(c)). 

Where a party informs an adjudicatory board that it is not interested in a matter to be 

discussed in a conference call between the board and the other litigants, that party 

cannot later complain that it was not consulted or included in the conference call. 

Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), 

ALAB-493, 8 NRC 253, 269 n.63 (1978). 

6.5.4 Staff-Applicant Communications 

6.5.4.1 Staff Review of Application 

A prospective applicant may confer informally with the Staff prior to filing its 

application. 10 C.F.R. §§ 2.101(a)(1), 2.102(a). 

The Staff may continue to confer privately with the applicant even after a hearing 

has been noticed. While a Licensing Board has supervisory authority over Staff 

actions that are part of the hearing process, it has no jurisdiction to supervise the 

Staff’s review process and, as such, cannot order the Staff and applicant to hold 

their private discussions in the vicinity of the site or to provide transcripts of such 

discussions. Northeast Nuclear Energy Co. (Montague Nuclear Power Station, 

Units 1 & 2), LBP-75-19, 1 NRC 436 (1975). Sacramento Municipal Utility District

(Rancho Seco Nuclear Generating Station), CLI-93-5, 37 NRC 168, 170 (1993). 

With certain exceptions, all meetings conducted by the NRC technical Staff as part 

of its review of a particular domestic license or permit application, including 

applications for amendments to a license or permit, are to be open to attendance by 

all parties or petitioners for leave to intervene in the case. See Enhancing Public 

Participation in NRC Meetings: Policy Statement, 67 Fed. Reg. 36,920 

(May 28, 2002). The policy has its origins in a statement of Staff policy originally 

published as Domestic License Applications, Open Meetings and Statement of NRC 

Staff Policy, 43 Fed. Reg. 28,058 (June 28, 1978). 

In the absence of a demonstration that meetings were deliberately being scheduled 

with a view to limiting the ability of intervenors’ representatives to attend, the 

imposition of hard and fast rules on scheduling and meeting location would 

needlessly impair the Staff’s ability to obtain information. The Staff should regard 

the intervenors’ opportunity to attend as one of the factors to be taken into account 

in making its decisions on the location of such meetings. Fairness demands that all 

parties be informed of the scheduling of such meetings at the same time. 

Consolidated Edison Co. (Indian Point Nuclear Generating Unit 2); Power Authority 

of the State of N.Y. (Indian Point, Unit 3), CLI-82-41, 16 NRC 1721, 1722-23 (1982). 
JUNE 2011 GENERAL MATTERS 27 

6.5.4.2 Staff-Applicant Correspondence 

All Staff-applicant correspondence is required to be served on all parties to a 

proceeding and such service must be continued through the entire judicial review 

process, at least with respect to those parties participating in the review and those 

issues which are the subject of the review. Carolina Power & Light Co. (Shearon 

Harris Nuclear Power Plant, Units 1, 2, 3 & 4), ALAB-184, 7 AEC 229, 237 n.9 

(1974); Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power 

Station), ALAB-179, 7 AEC 159, 183 (1974). Note that this requirement of service 

on all parties of documents exchanged between applicant and Staff in the review 

process does not arise from 10 C.F.R. § 2.302(b) (formerly § 2.701(b)) which 

separately requires that all documents offered for filing in adjudications be served on 

all parties. Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, 

Units 1 & 2), LBP-82-119A, 16 NRC 2069, 2112 (1982). Sacramento Municipal 

Utility District (Rancho Seco Nuclear Generating Station), CLI-93-3, 37 NRC 135, 

152-53 (1993). 

6.5.5 Notice of Relevant Significant Developments 

6.5.5.1 Duty to Inform Adjudicatory Board of Significant Developments 

The NRC Staff has an obligation to lay all relevant materials before the Board to 

enable it to adequately dispose of the issues before it. Consolidated Edison Co.

(Indian Point Nuclear Generating Units 1, 2 & 3), CLI-77-2, 5 NRC 13 (1977); 

Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-732, 

17 NRC 1076, 1091 n.18 (1983), citing Indian Point, supra, 5 NRC at 15. See

generally Tennessee Valley Authority (Browns Ferry Nuclear Plant, Units 1, 2 & 3), 

ALAB-677, 15 NRC 1387 (1982); Allied-General Nuclear Services (Barnwell Nuclear 

Fuel Plant Separation Facility), ALAB-296, 2 NRC 671, 680 (1975). Moreover, the 

Staff is obligated to make every effort promptly to report newly discovered important 

information or significant developments related to a proceeding to the presiding 

Licensing Board and the parties. The Staff’s obligation to report applies to 

10 C.F.R. Part 2, Subpart L proceedings in which the Staff has “a continuing duty to 

keep the hearing file up to date.” 10 C.F.R. § 2.1203(c) (formerly § 2.1231(c)). 

Curators of the University of Missouri, LBP-90-34, 32 NRC 253, 254-55 (1990). 

This duty to report arises immediately upon the Staff’s discovery of the information, 

and the Staff is not to delay in reporting until it has completed its own evaluation of 

the matter. Virginia Electric & Power Co. (North Anna Power Station, Units 1 & 2), 

CLI-76-22, 4 NRC 480, 491 n.11 (1976). This same obligation extends to all parties, 

each of whom has an affirmative duty to keep Boards advised of significant changes 

and developments relevant to the proceeding. Georgia Power Co. (Alvin W. Vogtle 

Nuclear Plant, Units 1 & 2), ALAB-291, 2 NRC 404, 408 (1975); Duke Power Co.

(William B. McGuire Nuclear Station, Units 1 & 2), ALAB-143, 6 AEC 623, 625-626 

(1973); Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB774, 19 NRC 1350, 1357 (1984); General Public Utilities Nuclear Corp. (Three Mile 

Island Nuclear Station, Unit 1), LBP-86-14, 23 NRC 553, 560 (1986); Houston 

Lighting and Power Co. (South Texas Project, Units 1 & 2), LBP-86-15, 23 NRC 

595, 623-625 (1986). See Curators of the University of Missouri, LBP-90-34, 32 
GENERAL MATTERS 28 JUNE 2011 

NRC 253, 255-57 (1990). Sacramento Municipal Utility District (Rancho Seco 

Nuclear Generating Station), CLI-93-5, 37 NRC 168, 170 (1993). 

Parties in Commission proceedings have an absolute obligation to alert adjudicatory 

bodies in a timely fashion of material changes in evidence regarding: (1) new 

information that is relevant and material to the matter being adjudicated; 

(2) modifications and rescissions of important evidentiary submissions; and 

(3) outdated or incorrect information on which the Board may rely. Similarly, internal 

Staff procedures must ensure that Staff counsel be fully appraised of new 

developments. Tennessee Valley Authority (Browns Ferry Nuclear Plant, 

Units 1, 2 & 3), ALAB-677, 15 NRC 1387, 1388, 1394 (1982), citing Duke Power Co.

(Catawba Nuclear Station, Units 1 & 2), ALAB-355, 4 NRC 397, 406 n.26 (1976); 

Georgia Power Co. (Alvin W. Vogtle Nuclear Plant, Units 1 & 2), ALAB-291, 2 NRC 

404, 411 (1975); and Duke Power Co. (William B. McGuire Nuclear Station, Units 1 

& 2), ALAB-143, 6 AEC 623, 625 (1973); Tennessee Valley Authority (Phipps Bend 

Nuclear Plant, Units 1 & 2), ALAB-752, 18 NRC 1318, 1320 (1983); Philadelphia 

Electric Co. (Limerick Generating Station, Units 1 & 2), ALAB-765, 19 NRC 645, 656 

(1984); Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), ALAB785, 20 NRC 848, 884 n.163 (1984). 

However, the Commission has discussed the conflict between the Staff’s duty to 

disclose information to the boards and other parties, and the need to protect such 

information. The Commission noted that, pursuant to its Policy Statement on 

Investigations, Inspections, and Adjudicatory Proceedings, 49 Fed. Reg. 36,032 

(Sep. 13, 1984), the NRC Staff or the Office of Investigations could provide to a 

board, or a board could request, for ex parte in camera presentation, information 

concerning an inspection or investigation when the information is material and 

relevant to any issue in controversy in the proceeding. The Commission held that 

the Appeal Board did not have the authority to request information from the Office of 

Investigations for use in reviewing a motion to reopen where the motion to reopen 

concerned previously uncontested issues and not “issues in controversy in a 

proceeding.” Louisiana Power & Light Co. (Waterford Steam Electric Station, 

Unit 3), CLI-86-1, 23 NRC 1, 7 (1986). See Louisiana Power & Light Co. (Waterford 

Steam Electric Station, Unit 3), ALAB-829, 23 NRC 55, 58 & n.1 (1986). 

All parties, including the Staff, are obliged to bring any significant new information to 

the boards’ attention. Metropolitan Edison Co. (Three Mile Island Nuclear Station, 

Unit 1), ALAB-738, 18 NRC 177, 197 n.39 (1983), rev’d in part on other grounds, 

CLI-85-2, 21 NRC 282 (1985), citing Tennessee Valley Authority (Browns Ferry 

Nuclear Plant, Units 1, 2 & 3), ALAB-677, 15 NRC 1387, 1394 (1982); Union Electric 

Co. (Callaway Plant, Unit 1), ALAB-750, 18 NRC 1205, 1210 n.11 (1983). 

Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), 

CLI-93-3, 37 NRC 135, 152-53 n.46 (1993). 

Parties and counsel must adhere to the highest standards in disclosing all relevant 

factual information to the Licensing Board. Material facts must be affirmatively 

disclosed. If counsel have any doubt whether they have a duty to disclose certain 

facts, they must disclose. An externality such as a threatened lawsuit does not 

relieve a party of its duty to disclose relevant information and its other duties to the 

Board. Consumers Power Co. (Midland Plant, Units 1 & 2), LBP-81-63, 14 NRC 

1768, 1778, 1795 (1981); Union Electric Co. (Callaway Plant, Unit 1), ALAB-750, 
JUNE 2011 GENERAL MATTERS 29 

18 NRC 1205, 1210 n.11 (1983); Louisiana Power & Light Co. (Waterford Steam 

Electric Station, Unit 3), ALAB-786, 20 NRC 1087, 1092 n.8 (1984); Commonwealth 

Edison Co. (Braidwood Nuclear Power Station, Units 1 & 2), LBP-85-11, 21 NRC 

609, 624 n.9 (1985), rev’d and remanded on other grounds, CLI-86-8, 23 NRC 241 

(1986). 

If a licensee or applicant has a reasonable doubt concerning the materiality of 

information in relation to its Board notification obligation or duties under Section 186 

of the AEA, 42 U.S.C. § 2236a, the information should be disclosed for the Board to 

decide its true worth. Metropolitan Edison Co. (Three Mile Island Nuclear Station, 

Unit 1), ALAB-774, 19 NRC 1350, 1358 (1984), citing Duke Power Co.

(William B. McGuire Nuclear Station, Units 1 & 2), ALAB-143, 6 AEC 623, 625 n.15 

(1973) and Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-691, 16 NRC 

897, 914 (1982), review declined, CLI-83-2, 17 NRC 69 (1983); Houston Lighting 

and Power Co. (South Texas Project, Units 1 & 2), LBP-85-6, 21 NRC 447, 461 

(1985); General Public Utilities Nuclear Corp. (Three Mile Island Nuclear Station, 

Unit 1), LBP-86-14, 23 NRC 553, 560 (1986). 

Before submitting information to the Board pursuant to its notification obligations, a 

licensee or applicant is entitled to a reasonable period of time for internal review of 

the documents under consideration. However, an obvious exception exists for 

information that could have an immediate effect on matters currently being pursued 

at hearing, or that disclose possible serious safety or environmental problems 

requiring immediate attention. An applicant or licensee is obliged to report the latter 

to the NRC Staff without delay in accordance with numerous regulatory 

requirements. See, e.g.,10 C.F.R. § 50.72. Metropolitan Edison Co. (Three Mile 

Island Nuclear Station, Unit 1), ALAB-774, 19 NRC 1350, 1359 n.8 (1984). 

The routine submittal of informational copies of technical materials to a Board is not 

sufficient to fulfill a party’s obligation to notify the Board of material changes in 

significant matters relevant to the proceeding. Long Island Lighting Co. (Shoreham 

Nuclear Power Station, Unit 1), LBP-84-53, 20 NRC 1531, 1539 n.23 (1984). If a 

Board notification is to serve its intended purpose, it must contain an exposition 

adequate to allow a ready appreciation of (1) the precise nature of the addressed 

issue and (2) the extent to which the issue might have a bearing upon the particular 

facility before the Board. Louisiana Power & Light Co. (Waterford Steam Electric 

Station, Unit 3), ALAB-732, 17 NRC 1076, 1114 n.59 (1983), citing Virginia Electric 

& Power Co. (North Anna Nuclear Power Station, Units 1 & 2), ALAB-551, 9 NRC 

704, 710 (1979); Louisiana Power & Light Co. (Waterford Steam Electric Station, 

Unit 3), ALAB-786, 20 NRC 1087, 1092 n.8 (1984). 

The untimely provision of significant information is an important measure of a 

licensee’s character, particularly if it is found to constitute a material false statement. 

Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-738, 

18 NRC 177, 198 (1983), rev’d in part on other grounds, CLI-85-2, 21 NRC 282 

(1985). 

An applicant’s failure to notify a Board of significant information may reflect a 

deficiency in character or competence if such failure is a deliberate breach of a 

clearly defined duty, a pattern of conduct to that effect, or an indication of bad faith. 
GENERAL MATTERS 30 JUNE 2011 

Houston Lighting & Power Co. (South Texas Project, Units 1 & 2), LBP-86-15, 

23 NRC 595, 625-626 (1986). 

6.6 Decommissioning

Prior to 1996, hearings in decommissioning proceedings were held relatively early in the 

process and the issues litigated related to whether the agency should approve the 

licensee’s decommissioning plan. The hearings were held pursuant to the formal hearing 

requirements in 10 C.F.R. Part 2, Subpart G. This is no longer the case. The only 

predictable Staff action during decommissioning that will trigger the opportunity for a 

hearing will be on whether to approve the licensee’s termination plan, which will be 

submitted at the end of the project, not at the beginning. It is contemplated that a 

termination plan will be much simpler than the decommissioning plan because it will not 

include a dismantlement plan and may be as simple as a final site survey plan. 

Decommissioning of Nuclear Power Reactors, 61 Fed. Reg. 39,278, 39,280 

(July 19, 1996). 

An opportunity for a hearing may be available earlier in the process for any activities 

requiring an amendment to the license, or if the Staff takes enforcement action against a 

licensee during the decommissioning process. 

There is no question that the NRC has subject matter jurisdiction over the 

decommissioning of licensed facilities and the public’s protection against dangers to 

health, life or property from the operation of licensed nuclear facilities. Sequoyah Fuels 

Corp. and General Atomics (Gore, OK, Site Decontamination and Decommissioning 

Funding), LBP-94-17, 39 NRC 359, 365 (1994). 

Outside the realm of the Commission’s jurisdiction are decisions concerning the 

disposition of excess funds from a ratepayer-funded Decommissioning Trust Fund. GPU 

Nuclear, Inc., et al. (Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 

210-11 (2000). The Commission does not have statutory authority to determine the 

recipient of excess decommissioning funds. Power Authority of the State of New York, 

et al. (James FitzPatrick Nuclear Power Plant; Indian Point Nuclear Generating Unit 3), 

CLI-00-22, 52 NRC 266, 305 (2000). 

Section 50.82(e) of 10 C.F.R. expressly requires that decommissioning be performed in 

accordance with the regulations, including the “as low as is reasonably achievable” 

(ALARA) rule in 10 C.F.R. § 20.1101. Yankee Atomic Electric Co. (Yankee Nuclear 

Power Station), CLI-96-7, 43 NRC 235, 250-51 (1996). 

After decommissioning, the fact that a very small portion of a site may not be releasable 

does not preclude the release of the overwhelming remainder of the site. Yankee Atomic 

Electric Co. (Yankee Nuclear Power Station), CLI-96-7, 43 NRC 235, 252 (1996). 

Under 10 C.F.R. § 20.1403, a site may be suitable for restricted decommissioning even 

though it includes long-lived as well as short-lived radioactive contaminants. Sequoyah 

Fuels Corporation (Gore, OK, Site Decommissioning) LBP-99-46, 50 NRC 386, 396-97 

(1999). 
JUNE 2011 GENERAL MATTERS 31 

6.6.1 Decommissioning Plan 

To obtain a hearing on the adequacy of the decommissioning plan, petitioners must 

show some specific, tangible link between the alleged errors in the plan and the health 

and safety impacts they invoke. Yankee Atomic Electric Co. (Yankee Nuclear Power 

Station), CLI-96-7, 43 NRC 235, 258 (1996). 

As provided in 10 C.F.R. § 40.42(g)(2), an alternate schedule for the submittal of a 

decommissioning plan should be approved if it (1) is necessary to the effective conduct 

of decommissioning operations; (2) presents no undue risk from radiation; and (3) is 

otherwise in the public interest. U.S. Army (Jefferson Proving Ground Site), LBP-08-4, 

67 NRC 105 (2008). 

6.6.1.1 Decommissioning Funding 

The Commission’s regulations regarding decommissioning funding are intended to 

minimize administrative effort and provide reasonable assurance that funds will be 

available to carry out decommissioning in a manner that protects public health and 

safety. Consolidated Edison Co., Entergy Nuclear Indian Point 2, LLC, and Entergy 

Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 1 & 2), CLI-01-19, 

54 NRC 109, 143 (2001) (citing Final Rule: General Requirements for 

Decommissioning Nuclear Facilities, 53 Fed. Reg. 24,018, 24,030 (June 27, 1988)). 

“The generic formulas set out in 10 C.F.R. § 50.75(c) fulfill the dual purpose of the 

rule.” Consolidated Edison, Entergy Nuclear Indian Point 2, LLC, and Entergy 

Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 1 & 2), CLI-01-19, 

54 NRC 109, 144 (2001). 

A litigable contention asserting that a reactor decommissioning plan does not 

comply with the funding requirements of 10 C.F.R. § 50.82(b)(4) and (c) must show 

not only that one or more of a plan’s cost estimate provisions are in error, “but that 

there is not reasonable assurance that the amount will be paid.” Yankee Atomic 

Electric Co. (Yankee Atomic Nuclear Station), CLI-96-1, 43 NRC 1, 9 (1996). A 

petitioner must establish that some reasonable ground exists for concluding that the 

licensee will not have sufficient funds to cover decommissioning costs for the facility. 

Yankee Atomic Electric Co. (Yankee Nuclear Power Station), LBP-96-2, 43 NRC 61 

(1996). 

Decommissioning trusts are reserved for decommissioning as defined in 

10 C.F.R. § 50.2. Thus, offsite remediation is not an accepted expense. However, 

some licensees use the decommissioning trust to accumulate funds for both 

“decommissioning” as NRC defines it and decommissioning in the broader sense 

that includes interim spent fuel management, nonradioactive structure demolition, 

and site remediation to greenfield status. The Commission has accepted this 

approach as long as the NRC-defined “decommissioning” funds are clearly 

earmarked. Power Authority of the State of New York, et al. (James FitzPatrick 

Nuclear Power Plant; Indian Point Nuclear Generating Unit 3), CLI-00-22, 52 NRC 

266, 307-308 (2000). 

Decommissioning funding costs exclude the cost of removal and disposal of spent 

fuel (10 C.F.R. § 50.75(c)n.1), but do not clearly exclude costs of interim onsite 

storage of spent fuel. The cost of casks to store spent fuel in an onsite independent 
GENERAL MATTERS 32 JUNE 2011 

spent fuel storage installation (ISFSI) does not appear to be excluded. Sacramento 

Municipal Utility District (Rancho Seco Nuclear Generating Station), LBP-93-23, 

38 NRC 200, 218 (1993). 

The adequacy of a corporate parent’s supplemental commitment is not material to 

NRC license transfer proceedings. The NRC does not need to examine site-specific 

conditions in calculating the costs of decommissioning. The NRC’s 

decommissioning funding regulation, 10 C.F.R. § 50.75(c), generically establishes 

the amount of decommissioning funds that must be set aside. Vermont Yankee 

Nuclear Power Corp., et al. (Vermont Yankee Nuclear Power Station), CLI-00-20, 52 

NRC 151, 165-166 (2000). 

Sections 30.35(a) and 70.25(a) of the Commission’s regulations generally require a 

materials license applicant to submit a decommissioning funding plan if the amount 

of unsealed byproduct material or unsealed SNM to be licensed exceeds certain 

levels. However, Section 30.35(c)(2) and 70.25(c)(2) provide specific exceptions to 

the requirements of Sections 30.35(a) and 70.25(a) for any holder of a license 

issued on or before July 27, 1990. Such a licensee has a choice of either (1) filing a 

decommissioning plan on or before July 27, 1990, or (2) filing a Certification of 

Financial Assurance on or before that date and then filing a decommissioning 

funding plan in its next license renewal application. Curators of University of 

Missouri, CLI-95-1, 41 NRC 71, 165 (1995). 

NRC regulations regarding decommissioning funding do not require the inclusion of 

costs related to nonradioactive structures or materials beyond those necessary to 

terminate an NRC license. Consolidated Edison Co., Entergy Nuclear Indian 

Point 2, LLC, and Entergy Nuclear Operations, Inc. (Indian Point Nuclear 

Generating Units 1 & 2), CLI-01-19, 54 NRC 109, 145 (2001). 

In addition, once the funds are in the decommissioning trust, withdrawals are limited 

by 10 C.F.R. § 50.82, so that “non-decommissioning” funds (as defined by the NRC) 

could be spent after the NRC-defined “decommissioning” work had been finished or 

committed. Power Authority of the State of New York, et al. (James FitzPatrick 

Nuclear Power Plant; Indian Point Nuclear Generating Unit 3), CLI-00-22, 52 NRC 

266, 308 n.52 (2000). 

NRC regulations do not require a license transfer application to provide an estimate 

of the actual decommissioning and site cleanup costs. Instead the Commission’s 

decommissioning funding regulation under 10 C.F.R. § 50.75(c) generically 

establishes the amount of decommissioning funds that must be set aside. A 

petitioner cannot challenge the regulation in a license transfer adjudication. The 

NRC’s decommissioning funding rule reflects a deliberate decision not to require 

site-specific estimates in setting decommissioning funding levels. Power Authority 

of the State of New York, et al. (James FitzPatrick Nuclear Power Plant; Indian Point 

Nuclear Generating Unit 3), CLI-00-22, 52 NRC 266, 308 (2000), citing Northern 

States Power Co. (Monticello Nuclear Generating Plant; Prairie Island Nuclear 

Generating Plant, Units 1 & 2; Prairie Island Independent Spent Fuel Storage 

Installation), CLI-00-14, 52 NRC 37, reconsid. denied, CLI-00-14 52 NRC 37, 59 

(2000). 
JUNE 2011 GENERAL MATTERS 33 

The use of site-specific estimates was expressly rejected by the Commission in its 

decommissioning rulemaking, although the Commission did recognize that sitespecific cost estimates may be prepared for rate regulators. Consolidated Edison 

Co., Entergy Nuclear Indian Point 2, LLC, and Entergy Nuclear Operations, Inc.

(Indian Point Nuclear Generating Units 1 & 2), CLI-01-19, 54 NRC 109, 144 (2001), 

citing Final Rule: Financial Assurances Requirements for Decommissioning Nuclear 

Power Reactors, 63 Fed. Reg. 50,465, 50,468-69 (Sep. 22, 1998); Final Rule: 

General Design Requirements for Decommissioning Nuclear Facilities, 53 Fed. Reg. 

24,018, 24,030 (June 27, 1988). 

The argument that decommissioning technology is still in an experimental stage is 

considered a collateral attack on 10 C.F.R. § 50.75(c) establishing the amount that 

must be set aside and is thus invalid. Power Authority of the State of New York, 

et al. (James FitzPatrick Nuclear Power Plant; Indian Point Nuclear Generating 

Unit 3), CLI-00-22, 52 NRC 266, 309 (2000), quoting Vermont Yankee Nuclear 

Power Corp. (Vermont Yankee Nuclear Power Station), CLI-00-20, 52 NRC 151, 

167 n.9 (2000) and citing Northern States Power Co. (Monticello Nuclear 

Generating Plant; Prairie Island Nuclear Generating Plant, Units 1& 2; Prairie Island 

Independent Spent Fuel Storage Installation), CLI-00-14, 52 NRC 37 (2000), 

reconsid. denied, CLI-00-19, 52 NRC 135 (2000). 

An applicant’s claimed inability to pay for decommissioning as desired by the 

intervenor does not mean the intervenor’s alleged injuries are not redressable, so as 

to defeat the intervenor’s standing to contest the applicant’s proposed 

decommissioning plan. Sequoyah Fuels Corp. (Gore, Oklahoma, Site 

Decommissioning), CLI-01-2, 53 NRC 2, 14-15 (2001). 

A contention challenging the reasonableness of a decommissioning plan’s cost 

estimate is not litigable if reasonable assurance of decommissioning costs is not in 

serious doubt and if the only available relief would be a formalistic redraft of the plan 

with a new estimate. Yankee Atomic Electric Co. (Yankee Nuclear Power Station), 

CLI-96-7, 43 NRC 235, 257 (1996). 

Decisions concerning rate questions related to a ratepayer-funded 

Decommissioning Trust Fund are outside the Commission’s jurisdiction. GPU 

Nuclear, Inc., et al. (Oyster Creek Nuclear Generating Station), CLI-00-6, 

51 NRC 193, 210-11 (2000). 

The standard for determining that the funds for decommissioning the plant will be 

forthcoming is whether there is “reasonable assurance” of adequate funding, not 

whether that assurance is “ironclad.” Yankee Atomic Electric Co. (Yankee Nuclear 

Power Station), CLI-96-7, 43 NRC 235, 261-62 (1996). 

Criterion 9 of 10 C.F.R. Part 40, Appendix A, requires submission of a plan for 

decommissioning, including cost estimates, prior to issuance of the materials 

license. Hydro Resources, Inc., CLI-00-8, 51 NRC 227, 238-39 (2000). 

Section 3113 of the USEC Privatization Act (42 U.S.C. § 2297) requires DOE to 

accept depleted uranium hexafluoride for deconversion and disposal at the request 

of an NRC-licensed uranium enrichment facility operator, but it gives DOE exclusive 

authority to determine the amount of reimbursement required for disposition of that 
GENERAL MATTERS 34 JUNE 2011 

depleted uranium waste. Neither an intervenor nor an applicant/licensee has the 

authority to challenge or direct DOE’s estimates of the fees it will charge to a 

uranium facility that requests DOE to disposition its depleted uranium wastes. 

Louisiana Energy Services, L.P. (National Enrichment Facility), LBP-06-15, 63 NRC 

591, 629 (2006). 

6.7 Early Site Review Procedures

Part 2 of the Commission’s regulations has been amended to provide for adjudicatory 

early site reviews. See 10 C.F.R. §§ 2.101(a)(1), 2.600-2.606. The early site review 

procedures, which differ from those set forth in Subpart A of 10 C.F.R. Part 52 and 

Appendix Q to 10 C.F.R. Part 52 (formerly in10 C.F.R. Part 50), allow for the early 

issuance of a partial initial decision on site suitability matters. 

Early site review regulations provide for a detailed review of site suitability matters by the 

Staff, an adjudicatory hearing directed toward the site suitability issues proposed by the 

applicant, and the issuance by a Licensing Board of an early partial decision on site 

suitability issues. A partial decision on site suitability is not a sufficient basis for the 

issuance of a construction permit or for an LWA. Neither of these steps can be taken 

without further action, which includes the full review required by Section 102(2) of the 

National Environmental Policy Act of 1969, as amended (NEPA), and by 

10 C.F.R. Part 51, which implements NEPA. Philadelphia Electric Co. (Fulton Generating 

Station, Units 1 & 2), LBP-79-23, 10 NRC 220, 223 (1979). 

The early partial decision on site suitability does not authorize the applicant to do 

anything; it does provide the applicant with information of value to the applicant in its 

decision to either abandon the site or proceed with plans for the design, construction, and 

operation of a specific nuclear power plant at that site. Implementation of any such 

plans is dependent upon further review by the Staff and approval by a Licensing Board. 

Philadelphia Electric Co. (Fulton Generating Station, Units 1 & 2), LBP-79-23, 

10 NRC 220, 223 (1979). 

The Commission, in its discretion, will determine whether formal or informal hearing 

procedures will be used to conduct a Part 52 post-construction hearing on a combined 

construction permit and operating license. 10 C.F.R. § 52.103(d), 57 Fed. Reg. 60,975, 

60,978 (Dec. 23, 1992). See Nuclear Information Resource Service v. NRC, 

969 F.2d 1169 (D.C. Cir. 1992). 

6.7.1 Scope of Early Site Review 

The early site review is not a “major Federal action significantly affecting the human 

environment” such as would require a full NEPA review of the entire proposed project. 

Commonwealth Edison Co. (Carroll County Site), ALAB-601, 12 NRC 18, 25 (1980). 

The scope of the early site review is properly limited to the issues specified in the 

notice of hearing subject to the limits of NEPA, Section 102(2)(c), 

42 U.S.C. § 4332(2)(c). Commonwealth Edison Co. (Carroll County Site), ALAB-601, 

12 NRC 18, 26 (1980). 
JUNE 2011 GENERAL MATTERS 35 

6.8 Endangered Species Act

6.8.1 Required Findings re Endangered Species Act 

Under Section 7 of the Endangered Species Act, federal agencies, in consultation with 

the Department of the Interior, are to take such action as necessary to insure that 

actions authorized by them do not “jeopardize the continued existence of such 

endangered species.” Tennessee Valley Authority (Hartsville Nuclear Plant, 

Units 1A, 2A, 1B & 2B), ALAB-463, 7 NRC 341, 360 (1978). The federal agency is to 

obtain input from the Department of the Interior and then make its decision. A 

Licensing Board may not approve relevant action until Interior has been consulted. 

Approval by the Board which is conditioned on later approval by the Department of the 

Interior does not fulfill the requirements of the Endangered Species Act. “To give 

advance approval to whatever Interior might decide is to abdicate the Commission’s 

duty under the Act to make its own fully informed decision.” Tennessee Valley 

Authority (Hartsville Nuclear Plant, Units 1A, 2A, 1B & 2B), ALAB-463, 7 NRC 341, 

363-64 (1978). 

A Licensing Board’s finding with regard to the Endangered Species Act aspects of a 

construction permit application should not be restricted to a consideration of the 

particular points raised by contentions. Once informed that an endangered species 

lives in the vicinity of the proposed plant, the Licensing Board is obligated to examine 

all possible adverse effects upon the species which might result from construction or 

operation of the plant and to make findings with respect to them. Tennessee Valley 

Authority (Hartsville Nuclear Plant, Units 1A, 2A, 1B & 2B), ALAB-463, 7 NRC 341, 361 

(1978). In this vein, releases from the plant which will not produce significant adverse 

effects on endangered species clearly “will not jeopardize their continued existence.” 

The Act does not require a finding that there will not be any adverse effects. 

“Insignificant effects are not proscribed by the Statute.” ALAB-463, 7 NRC at 360. 

Likewise, if there are no significant adverse effects on an endangered species, there 

will be no “harm” to the species under Section 9 of the Act. Tennessee Valley 

Authority (Hartsville Nuclear Plant, Units 1A, 2A, 1B & 2B), ALAB-463, 7 NRC 341, 

366-67, n.114 (1978). 

6.8.2 Degree of Proof Needed re Endangered Species Act 

The finding that the proposed action will not jeopardize the continued existence of an 

endangered species must be established by a preponderance of the evidence rather 

than by clear and convincing proof. Tennessee Valley Authority (Hartsville Nuclear 

Plant, Units 1A, 2A, 1B & 2B), ALAB-463, 7 NRC 341, 360 (1978). 

6.9 Financial Qualifications

Section 182(a) of the AEA does not impose any financial qualifications requirement on 

license applicants; it merely authorizes the Commission to impose such financial 

requirements as it may deem appropriate. Public Service Co. of New Hampshire

(Seabrook Station, Units 1 & 2), CLI-78-1, 7 NRC 1, 8, 9 (1978); see also Private Fuel 

Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-04-27, 61 NRC 145, 

149 (2004). The relevant implementing regulation is 10 C.F.R. 50.33(f) which is amplified 

by Appendix C to 10 C.F.R. Part 50. Appendix C of 10 C.F.R. Part 50 is not designed to 

apply to a 10 C.F.R. Part 72 proceeding in toto, although there may be some parallels in 
GENERAL MATTERS 36 JUNE 2011 

appropriate circumstances. Private Fuel Storage, L.L.C. (Independent Spent Fuel 

Storage Installation), LBP-00-6, 51 NRC 101, 114 (2000). 

The “reasonable assurance” requirement in the regulation was adopted to assure that 

financial conditions did not compromise the applicant’s clear self-interest in safety. It 

contemplates actual inquiry into the applicant’s financial qualifications. It is not enough 

that the applicant is a regulated public utility. “Reasonable assurance” means that the 

applicant must have a reasonable financing plan in light of relevant circumstances. 

However, given the history of the present rule and the relatively modest implementing 

requirements in Appendix C, it does not mean a demonstration of near certainty that an 

applicant will never be pressed for funds during the course of construction. Public Service 

Co. of New Hampshire (Seabrook Station, Units 1 & 2), CLI-78-1, 7 NRC 1, 18 (1978). 

See also Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), 

ALAB-895, 28 NRC 7, 18 & n.39 (1988), citing Coalition for the Environment v. NRC, 

795 F.2d 168 (D.C. Cir. 1986). 

Financial assurance findings (whether under Part 50 or Part 72) are, by their nature, 

predictive and “speculation of some sort is unavoidable.” Pacific Gas & Electric Co.

(Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), LBP-03-11, 

58 NRC 47, 71 (2003). 

Financial assurance must be viewed on a case-by-case basis. Private Fuel Storage, 

L.L.C. (Independent Spent Fuel Storage Installation), CLI-04-10, 61 NRC 131, 138 (2004). 

Non-utility applicants for operating licenses are required by the NRC’s financial 

qualifications rule to demonstrate adequate financial qualifications before operating a 

facility. Consolidated Edison Co., Entergy Nuclear Indian Point 2, LLC, and Entergy 

Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 1 & 2), CLI-01-19, 

54 NRC 109, 129 (2001). A Board is not authorized to grant exemptions from this rule or 

to acquiesce in arguments that would result in the rule’s circumvention. Gulf States 

Utilities Co. (River Bend Station, Unit 1), LBP-95-10, 41 NRC 460, 473 (1995). 

Safety considerations are the heart of the financial qualifications rule. The Board 

reasoned in this regard that insufficient funding can cause licensees to cut corners on 

operating or maintenance expenses. Gulf States Utilities Co. (River Bend Station, Unit 1), 

LBP-95-10, 41 NRC 460, 473 (1995). Moreover, the Commission has recognized that a 

licensee in financially straitened circumstances would be under more pressure to commit 

safety violations or take safety “shortcuts” than one in good financial shape. ; Gulf 

States Utilities Co. (River Bend Station, Unit 1), CLI-94-10, 40 NRC 43, 48 (1994). 

The Commission found in a proceeding for an ISFSI license (where the adequacy of 

model service agreements for ensuring sufficient financing was at issue) that the applicant 

need not establish the creditworthiness of each and every potential customer prior to 

operations. It is enough that the applicant’s customers will have the ability and contractual 

obligation to pay. The applicant cannot be expected to prove that all of its customers 

invariably will fulfill their financial commitments; there is always a risk in business that 

some customer may ignore its obligations and force its creditor into court. “The 

Commission will accept financial assurances based on plausible assumptions and 

forecasts, even though the possibility is not insignificant that things will turn out less 

favorably than expected.” Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage 
JUNE 2011 GENERAL MATTERS 37 

Installation), CLI-04-10, 61 NRC 131, 137-38 (2004) (quoting N. Atl. Energy Serv. Corp.

(Seabrook Station, Unit 1), CLI-99-6, 49 NRC 201, 222 (1999)). 

The fundamental question in reviewing an intervenor’s challenge to an ISFSI applicant’s 

financing plan is whether it departs from governing regulations, the Commission’s 

controlling order on financial qualifications (CLI-00-13), and sound financial sense. 

Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-04-10, 

61 NRC 131, 139 (2004). 

Following judicial review of an earlier rule (see New England Coalition on Nuclear 

Pollution v. NRC, 727 F.2d 1127 (D.C. Cir. 1984), on Sep. 12, 1984, the Commission 

issued amendments to 10 C.F.R. § 50.33(f) which: 

 (1) reinstated financial qualifications review for electric utilities which apply 

 for facility construction permits; and 

 (2) eliminated financial qualifications review for electric utilities which apply 

 for operating licenses, if the utility is a regulated public utility or is 

 authorized to set its own rates. 

See 49 Fed. Reg. 35,747 (Sep. 12, 1984), as corrected, 49 Fed. Reg. 36,631 

(Sep. 19, 1984); Kansas Gas & Electric Co. (Wolf Creek Generating Station, Unit 1), 

ALAB-784, 20 NRC 845, 847 (1984); Duke Power Co. (Catawba Nuclear Station, Units 1 

& 2), ALAB-813, 22 NRC 59, 84 & n.126 (1985). 

Commission regulations recognize that underfunding can affect plant safety. Under 

10 C.F.R. § 50.33(f)(2), applicants – with the exception of electric utilities – seeking to 

operate a facility must demonstrate that they possess or have reasonable assurance of 

obtaining the funds necessary to cover estimated operation costs for the period of the 

license. Behind the financial qualifications rule is a safety rationale. Gulf States Utilities 

Co. (River Bend Station, Unit 1), CLI-94-10, 40 NRC 43, 48 (1994). 

In its statement of considerations accompanying the 1984 promulgation of the revised 

financial qualification review requirements, the Commission discussed the special 

circumstances which might justify a waiver, pursuant to 10 C.F.R. § 2.335(b) (formerly 

§ 2.758(b)), of the exemption from financial qualifications review for an electric utility 

operating license applicant. 49 Fed. Reg. 35,747, 35,751 (Sep. 12, 1984). Among the 

possible special circumstances for which a waiver may be appropriate are: (1) a showing 

that the local public utility commission will not allow the electric utility to recover the costs 

of operating the facility through its rates; and (2) a showing of a nexus between the safe 

operation of a facility and the electric utility’s financial condition. Public Service Co. of 

New Hampshire (Seabrook Station, Units 1 & 2), ALAB-895, 28 NRC 7, 17, 21-22 (1988). 

See Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), LBP-89-10, 29 

NRC 297, 302-03 (1989), aff’d in part and rev’d in part, ALAB-920, 30 NRC 121, 133-35 

(1989). The 1984 financial qualifications rulemaking proceeding did not limit the special 

circumstances that could serve as grounds for waiver under 10 C.F.R. § 2.335 (formerly § 

2.758). Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), CLI-88-10, 

28 NRC 573, 596 (1988), reconsid. denied, CLI-89-3, 29 NRC 234 (1989). 

Section 50.33(f), the Commission’s financial qualification exemption, applies only to 

regulated electric utilities. Gulf States Utilities Co., et al. (River Bend Station, Unit 1), 

LBP-94-3, 39 NRC 31 (1994), aff’d, CLI-94-10, 40 NRC 43 (1994). 
GENERAL MATTERS 38 JUNE 2011 

If a licensee has a service agreement with an “electrical utility” as defined in 

10 C.F.R. § 50.33(f), in which the utility offers reasonable assurances as to the payment 

of the licensee’s costs, then this satisfies the financial qualifications of 10 C.F.R. § 50.33(f) 

for the licensing of utilization and production facilities and the financial qualifications of 

10 C.F.R. § 72 for the licensing of ISFSIs. Northern States Power Co. (Monticello Nuclear 

Generating Plant; Prairie Island Nuclear Generating Plant, Units 1 & 2; Prairie Island 

Independent Spent Fuel Storage Installation), CLI-00-14, 52 NRC 37, 50-52 (2000). 

In the licensing of a proposed ISFSI facility, the use of pass-through provisions (labeling 

certain expenditures as costs that the applicant will pass directly to its customers) offers 

reasonable assurance that the construction, operating, and maintenance costs will be 

covered by incoming revenue. Private Fuel Storage, L.L.C. (Independent Spent Fuel 

Storage Installation), LBP-05-21, 62 NRC 248, 301 (2003). 

Reasonable financial assurance requires an applicant to only provide estimates of 

construction costs, not pre-construction costs, such as design drawings of the facility. 

PFS, LBP-05-21, 62 NRC at 301. 

An anti-CWIP (construction work in progress) law which prohibits a public utility from 

recovering plant construction costs through rate increases until the plant is in commercial 

operation is not a special circumstance which justifies a waiver under 10 C.F.R. 2.335 

(formerly 2.758) of the exemption from financial qualifications review for public utility 

operating license applicants. For a complete discussion of the NRC’s procedures for 

waiving a rule of general applicability, see infra Section 6.21.4. The potential delay in 

recovering such costs was considered by the Commission during rulemaking and was 

found not to undercut the rationale of the rule that ratemakers would authorize sufficient 

rates to assure adequate funding for safe full power operation of the plant. Public Service 

Co. of New Hampshire (Seabrook Station, Units 1 & 2), CLI-89-20, 30 NRC 231, 240-41 

(1989). 

In order to obtain a waiver, pursuant to 10 C.F.R. § 2.335 (formerly § 2.758(b)), of the 

financial qualifications review exemption in a low-power operating license proceeding, a 

petitioner must establish that the electric utility has insufficient funds to cover the costs of 

safe low-power operation of its facility. Public Service Co. of New Hampshire (Seabrook 

Station, Units 1 & 2), ALAB-895, 28 NRC 7, 18-19 (1988). 

Unusual and compelling circumstances are needed to warrant a waiver of the financial 

qualifications rule. Houston Lighting and Power Co. (South Texas Project, Units 1 & 2), 

LBP-83-37, 18 NRC 52, 57 (1983). Implicit in the “compelling circumstances” standard is 

the need to show the existence of at least a “significant” safety issue. Public Service Co. 

of New Hampshire (Seabrook Station, Units 1 & 2), CLI-89-3, 29 NRC 234, 239 (1989). 

A waiver of the 10 C.F.R. Part 72 financial qualifications standards is not an infringement 

on an intervenor’s right to litigate material issues bearing on a licensing decision. 

Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-00-6, 

51 NRC 101, 117 (2000). 

Matters involving decommissioning funding are considered under the Commission’s 

decommissioning rule, issued on June 27, 1988, and not as a part of the financial 

qualifications review under 10 C.F.R. § 50.33(f). The decommissioning rule requires an 
JUNE 2011 GENERAL MATTERS 39 

applicant to provide reasonable assurance that, at the time of termination of operations, it 

will have available adequate funds for the decommissioning of its facility in a safe and 

timely manner. 53 Fed. Reg. 24,018, 24,037 (June 27, 1988). The Commission applied 

the decommissioning rule to the unusual circumstances in the Seabrook operating license 

proceeding, and directed the applicant to provide, before low-power operation could be 

authorized, reasonable assurance that adequate funding for decommissioning will be 

available in the event that low-power operation has occurred and a full-power license is 

not granted. Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), 

CLI-88-7, 28 NRC 271, 272-73 (1988). In a subsequent decision, the Commission held 

that the decommissioning rule is directed to the safe and timely decommissioning of a 

reactor after a lengthy period of full-power operation, and thus is not directly applicable to 

the hypothetical situation addressed in CLI-88-7 – the denial of a full-power operating 

license following low power operation. However, due to the unusual circumstances in the 

Seabrook operating license proceeding, the Commission in CLI-88-7 did apply the safety 

concern underlying the decommissioning rule requiring the availability of adequate funds 

for safe and timely decommissioning. The Commission did not require the applicants to 

provide a final decommissioning plan containing precise and detailed information. Given 

the hypothetical situation, the applicants were required to provide only reasonable 

estimates of decommissioning costs and a reasonable assurance of availability of funding. 

Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), CLI-88-10, 28 NRC 

573, 584-86 (1988), reconsid. denied, CLI-89-3, 29 NRC 234 (1989), second motion for 

reconsid. denied, CLI-89-7, 29 NRC 395 (1989). 

Outside of the reactor context, it is sufficient for a license applicant to identify adequate 

mechanisms to demonstrate reasonable financial assurance, such as license conditions 

and other commitments. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage 

Installation), CLI-00-13, 52 NRC 23 (2000) (citing Louisiana Energy Services (Claiborne 

Enrichment Center), CLI-97-15, 46 NRC 294 (1997)); See also Private Fuel Storage, 

L.L.C. (Independent Spent Fuel Storage Installation), CLI-04-27, 61 NRC 145, 150 (2004) 

(stating that in cases where the applicant does not have cash in hand, the Commission 

has allowed the use of license conditions to ensure that the licensee does not start 

operations without assurance of future revenues). In CLI-04-27, the Commission noted 

that it had earlier approved the use of service contracts to show financial assurance in an 

ISFSI licensing proceeding; it further determined that, under certain circumstances, an 

applicant’s use of “passthrough” contracts could provide the necessary assurances as 

well as “fixed-price” contracts. See PFS, CLI-04-27, 61 NRC at 157-58. In a licensetransfer proceeding, the NRC’s financial qualifications rule is satisfied if the applicant 

provides a cost and revenue projection for the first five years of operation that predicts 

sufficient revenue to cover operating costs. GPU Nuclear, Inc. (Oyster Creek Nuclear 

Generating Station), CLI-00-6, 51 NRC 193, 206-08 (2000), cited in Vermont Yankee 

Nuclear Power Corp., et al. (Vermont Yankee Nuclear Power Station), CLI-00-20, 52 NRC 

151, 176 (2000). 

The financial requirements for an ISFSI under 10 C.F.R. Part 72 require nonspecific 

financial assurances, which are not the same as the more exacting financial requirements 

for a reactor license under 10 C.F.R. Part 50. Private Fuel Storage, L.L.C. (Independent 

Spent Fuel Storage Installation), CLI-00-13, 52 NRC 23, 30-31 (2000). 

The NRC’s regulations [at 10 C.F.R. 72.22(e)] require the license applicant to provide 

“reasonable assurance” that it can cover the “estimated costs” of operating and 

decommissioning the facility. This regulation requires that costs be estimated. Private 
GENERAL MATTERS 40 JUNE 2011 

Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-04-27, 61 NRC 

145, 155 (2004). However, it does not impose a requirement that cost estimates be 

written into license conditions. Id. at 156. 

A showing of reasonable assurance of estimating construction and operating costs for an 

ISFSI does not require that the applicant make the same showing of financial capability 

required under Part 50. Rather, reasonable financial assurance for an ISFSI applicant is 

provided through reasonable cost estimates based on plausible assumptions and 

forecasts. Assumptions seriously at odds with governing realities will not be acceptable. 

Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-05-21, 

62 NRC 248, 298-99 (2003). 

Pursuant to 10 C.F.R. § 50.33(f)(2), applicants for a license transfer “shall submit 

estimates for total annual operating costs for each of the first five years of operation of the 

facility.” The Commission has interpreted this rule as requiring “data for the first five 

12-month periods after the proposed transfer.” Consolidated Edison Co., Entergy Nuclear 

Indian Point 2, LLC, and Entergy Nuclear Operations, Inc. (Indian Point Nuclear 

Generating Units 1 & 2), CLI-01-19, 54 NRC 109, 131 (2001). If the submissions are 

deemed insufficient, this alone is not grounds for rejecting the application. Consolidated 

Edison Co., Entergy Nuclear Indian Point 2, LLC, and Entergy Nuclear Operations, Inc.

(Indian Point Nuclear Generating Units 1 & 2), CLI-01-19, 54 NRC 109, 131 (2001); citing

Curators of the University of Missouri, CLI-95-1, 41 NRC 71, 95-96 (1995), reconsid. 

denied, CLI-95-8, 41 NRC 386, 395 (1995). If the missing data concerning financial 

qualifications can easily be submitted for consideration at the adjudicatory hearing, the 

Presiding Officer need not reject the application. Consolidated Edison Co., Entergy 

Nuclear Indian Point 2, LLC, and Entergy Nuclear Operations, Inc. (Indian Point Nuclear 

Generating Units 1 & 2), CLI-01-19, 54 NRC 109, 131 (2001). 

The requirement that a party provide reasonable financial assurance does not require an 

ironclad guarantee of future business success. The mere casting of a doubt on some 

aspect of proposed funding plans is not in itself sufficient to defeat a finding of reasonable 

assurance. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), 

CLI-00-13, 52 NRC 23, 31 (2000) (citing Louisiana Energy Services (Claiborne 

Enrichment Center), CLI-97-15, 46 NRC 297 (1997); North Atlantic Energy Service Corp.

(Seabrook Station, Unit 1), CLI-99-6, 49 NRC 201, 222 (1999)). 

A financial assurance plan should not be left for later resolution or a second round of 

hearings close to the time of operation. Hydro Resources, Inc., CLI-00-8, 51 NRC 227, 

240 (2000). 

In a proceeding concerning the adequacy of financial assurance for an ISFSI license, the 

Commission stated in dicta that in ruling on the acceptability of any given license 

condition, it (the Commission) does not intend to forestall the Board’s ability to determine 

the acceptability of an alternative method of meeting NRC financial assurance 

requirements. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), 

CLI-04-27, 61 NRC 145, 153 n.28 (2004). 

6.10 Generic Issues

A generic issue may be defined as one which is applicable to the industry as a whole or to 

all reactors or facilities or to all reactors or facilities of a certain type. Current regulations 
JUNE 2011 GENERAL MATTERS 41 

do not deal specifically with generic issues or the manner in which they are to be 

addressed. 

6.10.1 Consideration of Generic Issues in Licensing Proceedings 

As a general rule, a true generic issue should not be considered in individual licensing 

proceedings but should be handled in rulemaking. See, e.g., Duke Power Co.

(William B. McGuire Nuclear Station, Units 1 & 2), ALAB-128, 6 AEC 399, 400, 401 

(1973); Long Island Lighting Co. (Shoreham Nuclear Power Station), ALAB-99, 6 AEC 

53, 55-56 (1973). The Commission had indicated at least that generic safety questions 

should be resolved in rulemaking proceedings whenever possible. See Vermont 

Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), CLI-74-40, 

8 AEC 809, 814-815, clarified, CLI-74-43, 8 AEC 826 (1974). An appellate court has 

indicated that generic proceedings “are a more efficient forum in which to develop 

issues without needless repetition and potential for delay.” Natural Resources Defense 

Council v. NRC, 547 F.2d 633 (D.C. Cir. 1976), rev’d and remanded, 435 U.S. 519 

(1978), on remand, 685 F.2d 459 (D.C. Cir. 1982), rev’d, 462 U.S. 87 (1983). To the 

same effect, see Tennessee Valley Authority (Hartsville Nuclear Plant, Units 1A, 2A, 

1B & 2B), ALAB-380, 5 NRC 572 (1977). Nevertheless, it appears that generic issues 

may properly be considered in individual adjudicatory proceedings in certain 

circumstances. 

For example, an Appeal Board has held that Licensing Boards should not accept, in 

individual licensing cases, any contentions which are or are about to become the 

subject of general rulemaking but apparently may accept so-called “generic issues” 

which are not (or are not about to become) the subjects of rulemaking. Potomac 

Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 & 2), ALAB-218, 

8 AEC 79 (1974); Houston Lighting & Power Co. (South Texas Project, Units 1 & 2), 

LBP-86-8, 23 NRC 182, 185-86 (1986). Moreover, if an issue is already the subject of 

regulations, the publication of new proposed rules does not necessarily suspend the 

effectiveness of the existing rules. Contentions under these circumstances need not 

be dismissed unless the Commission has specifically directed that they be dismissed 

during pendency of the rulemaking procedure. 

Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), 

LBP-82-1A, 15 NRC 43, 45 (1982); Houston Lighting & Power Co. (South Texas 

Project, Units 1 & 2), LBP-86-8, 23 NRC 182,186 (1986). The basic criterion is safety 

and whether there is a substantial safety reason for litigating the generic issue as the 

rulemaking progresses. In some cases, such litigation probably should be allowed if it 

appears that the facility in question may be licensed to operate before the rulemaking 

can be completed. In such a case, litigation may be necessary as a predicate for 

required safety findings. In other cases, however, it may become apparent that the 

rulemaking will be completed well before the facility can be licensed to operate. In that 

kind of case, there would normally be no safety justification for litigating the generic 

issues and strong resource management reasons not to litigate. Duke Power Co.

(Catawba Nuclear Station, Units 1 & 2), LBP-82-107A, 16 NRC 1791, 1809 (1982). 

In an operating license proceeding, where a hearing is to be held to consider other 

issues, Licensing Boards are enjoined, in the absence of issues raised by a party, to 

determine whether the Staff’s resolution of various generic safety issues applicable to 

the reactor in question is “at least plausible and...if proven to be of 
GENERAL MATTERS 42 JUNE 2011 

substance...adequate to justify operation.” Pennsylvania Power & Light Co.

(Susquehanna Steam Electric Station, Units 1& 2), LBP-79-6, 9 NRC 291, 311 (1979). 

See Houston Lighting & Power Co. (South Texas Project, Units 1 & 2), LBP-86-5, 23 

NRC 89, 90 (1986). 

A Licensing Board must refrain from scrutinizing the substance of particular 

explanations in the safety evaluation report (SER) justifying operation of a plant prior to 

the resolution of an unresolved generic safety issue. The Board should only look to 

see whether the generic issue has been taken into account in a manner that is at least 

plausible and that, if proven to be of substance, would be adequate to justify operation. 

Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), LBP-82-100, 

16 NRC 1550, 1559 (1982), citing Virginia Electric & Power Co. (North Anna Nuclear 

Power Station, Units 1 & 2), ALAB-491, 8 NRC 245 (1978). 

As a matter of policy, most evidentiary hearings in NRC proceedings are conducted in 

the general vicinity of the site of the facility involved. In generic matters, however, 

when the hearing encompasses distinct, geographically separated facilities and no 

relationship exists between the highly technical questions to be heard and the 

particular features of those facilities or their sites, the governing consideration in 

determining the place of hearing should be the convenience of the participants in the 

hearing. Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 & 3), 

ALAB-566, 10 NRC 527, 530-31 (1979). 

A Licensing Board does not have to apply the same degree of scrutiny to uncontested 

generic unresolved safety issues as is applied to issues subject to the adversarial 

process. A Licensing Board is required to examine the Staff’s presentation in the SER 

on such uncontested issues to determine whether a basis is provided to permit 

operation of the facility pending resolution of those issues. A Licensing Board need not 

make formal findings of fact on these matters as if they were contested issues, but it is 

required to determine that the relevant generic unresolved safety issues do not raise a 

“serious safety, environmental, or common defense and security matter” such as to 

require exercise of the Board’s authority under 10 C.F.R. § 2.340 (formerly § 2.760a) to 

raise and decide such issues sua sponte. Long Island Lighting Co. (Shoreham Nuclear 

Power Station, Unit 1), LBP-83-57, 18 NRC 445, 465 (1983), citing Louisiana Power & 

Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076, 1110-13 

(1983). 

6.10.2 Effect of Unresolved Generic Issues 

6.10.2.1 Effect of Unresolved Generic Issues in Construction Permit 

Proceedings 

The existence of an unresolved generic safety question does not necessarily require 

withholding of construction permits since the Commission has available to it the 

provisions of 10 C.F.R. § 50.109 for backfitting and the procedures of 

10 C.F.R. Part 2, Subpart B for imposing new requirements or conditions. Georgia 

Power Co. (Alvin W. Vogtle Nuclear Plant, Units 1 & 2), ALAB-291, 2 NRC 404 

(1975). 

While unresolved generic issues might not preclude issuance of a construction 

permit, those generic issues applicable to the facility in question must be considered 
JUNE 2011 GENERAL MATTERS 43 

and information must be presented on whether (1) the problem has already been 

resolved for the reactor under study, (2) there is a reasonable basis for concluding 

that a satisfactory solution will be obtained before the reactor is put into operation, 

or (3) the problem will have no safety implications until after several years of reactor 

operation, and if there is no resolution by then, alternate means will be available to 

assure that continued operation, if permitted, will not pose an undue risk. Gulf 

States Utilities Co. (River Bend Station, Units 1 & 2), ALAB-444, 6 NRC 760, 775 

(1977). See also Long Island Lighting Co. (Shoreham Nuclear Power Station, 

Unit 1), LBP-8219, 15 NRC 601, 614 (1982). 

6.10.2.2 Effect of Unresolved Generic Issues in Operating License Proceedings 

An unresolved safety issue cannot be disregarded in individual licensing 

proceedings merely because the issue also has generic applicability; rather, for an 

applicant to succeed, there must be some explanation why construction or operation 

can proceed although an overall solution has not been found. 

Where issuance of an operating license is involved, the justification for allowing 

operation may be more difficult to come by than would be the case where a 

construction permit is involved. Virginia Electric & Power Co. (North Anna Nuclear 

Power Station, Units 1 & 2), ALAB-491, 8 NRC 245, 248 (1978). 

Explanations of why an operating license should be issued despite the existence of 

unresolved generic safety issues should appear in the SER. Virginia Electric & 

Power Co. (North Anna Nuclear Power Station, Units 1 & 2), ALAB-491, 8 NRC 245, 

249 (1978). 

Where generic unresolved safety issues are involved in an operating license 

proceeding, for an application to succeed there must be some explanation why the 

operation can proceed even though an overall solution has not been found. Long 

Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-57, 18 NRC 

445, 472 (1983), aff’d, ALAB-788, 20 NRC 1102, 1135 n.187 (1984). A plant will be 

allowed to operate pending resolution of the unresolved issues when there is 

reasonable assurance that the facility can be operated without undue risk to the 

health and safety of the public. Long Island Lighting Co. (Shoreham Nuclear 

Power Station, Unit 1), LBP-83-57, 18 NRC 445, 472 (1983), aff’d, ALAB-788, 

20 NRC 1102, 1135 n.187 (1984). 

6.11 Power Reactor License Renewal Proceeding

The NRC will conduct a hearing, if requested, on an application to renew a nuclear power 

reactor operating license. 10 C.F.R. § 54.27, 56 Fed. Reg. 64,943, 64,960-61 

(Dec. 13, 1991). However, a formal “on-the-record” hearing in accordance with the 

Administrative Procedures Act (APA) is not required for reactor license renewal 

proceedings under Section 189 of the AEA. See Baltimore Gas and Electric Co. (Calvert 

Cliffs Nuclear Power Plant, Units 1 & 2), CLI-98-25, 48 NRC 325, 342 (1998). The 

hearing will be limited to consideration of issues concerning (1) age-related degradation 

unique to license renewal and (2) compliance with NEPA requirements. 10 C.F.R. 

§ 54.29(a), (b). The Commission may, at its discretion, admit an issue for resolution in the 

formal renewal hearing if the intervenor can demonstrate that the issue raises a concern 
GENERAL MATTERS 44 JUNE 2011 

relating to adequate protection which would occur only during the renewal period. 

10 C.F.R. § 54.29(c), § 2.335 (formerly § 2.758(b)(2)). 

The “proximity presumption” used in reactor construction and operating license 

proceedings should also apply to reactor license renewal proceedings. For construction 

permit and operating license proceedings, the NRC recognizes a presumption that 

persons who live, work or otherwise have contact within the area around the reactor have 

standing to intervene if they live within close proximity of the facility (e.g., 50 miles). 

Reactor license extension cases should be treated similarly because they allow operation 

of a reactor over an additional period of time during which the reactor can be subject to 

some of the same equipment failure and personnel error as during operations over the 

original period of the license. Duke Energy Corp. (Oconee Nuclear Station, 

Units 1, 2 & 3), LBP-98-33, 48 NRC 381, 385 n.1 (1998). 

The Commission’s license renewal environmental regulations are based on 

NUREG-1437, “Generic Environmental Impact Statement for License Renewal of Nuclear 

Plants” (May 1996). License renewal regulations only require the agency to prepare a 

supplement to the generic environmental impact statement (GEIS) for each license 

renewal action. Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, 

Units 3 & 4), LBP-01-6, 53 NRC 138, 152-53 (2001). 

For issues listed in Subpart A, Appendix B of 10 C.F.R. Part 51 as Category 1 issues, the 

Commission resolved the issues generically for all plants and those issues are not subject 

to further evaluation in any license renewal proceeding. See 61 Fed. Reg. 28, 467 (1996); 

see also, Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim 

Nuclear Station & Vermont Yankee Nuclear Power Stations), CLI-07-3, 65 NRC 13, 20 

(2007) (stating that any contention on a Category 1 issue fundamentally amounts to a 

challenge to the Commission’s regulation which bars challenges to generic environmental 

findings). Consequently, the Commission’s license renewal regulations also limit the 

information that the applicant need include in its environmental report, see

10 C.F.R. 51.71(d), and the matters the agency need consider in draft and final 

supplemental environmental impact statements (SEISs) to the GEIS. See Entergy 

Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Station & 

Vermont Yankee Nuclear Power Stations), CLI-07-3, 65 NRC 13, 21 (2007) reconsid. 

denied, Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim & 

Vermont Yankee Nuclear Power Stations), CLI-07-13, 65 NRC 211 (2007); Florida Power 

& Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-01-17, 54 NRC 3, 

11 (2001); Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 

4), LBP-01-6, 53 NRC 138, 154 (2001); Entergy Nuclear Generation Co. and Entergy 

Nuclear Operations, Inc. (Pilgrim Nuclear Station & Vermont Yankee Nuclear Power 

Stations), CLI-07-3, 65 NRC 13, 21 (2007) reconsid. denied, Entergy Nuclear Generation 

Co. and Entergy Nuclear Operations, Inc. (Pilgrim & Vermont Yankee Nuclear Power 

Stations), CLI-07-13, 65 NRC 211 (2007). License renewal applicants are not required to 

consider mitigation of the adverse impacts of Category 1 issues. Nuclear Generation Co. 

and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-14, 71 NRC 

__ (June 17, 2010) (slip op. at 30). 

Even when a GEIS has resolved a Category 1 issue generically, the applicant must still 

provide additional analysis in its environmental report if new significant information may 

bear on the applicability of the Category 1 finding at the particular plant. The Commission 

has identified three methods by which petitioners can petition the NRC to address 
JUNE 2011 GENERAL MATTERS 45 

significant new information that has arisen since the GEIS on Category 1 issues was 

finalized: (1) petitioners may seek a waiver to a rule if they possess information that may 

show that a generic rule would not serve its purpose at the specific plant; (2) petitioners 

may petition the NRC to initiate a new rulemaking process; or (3) petitioners may use the 

SEIS notice and comment process to request that the NRC forgo use of the suspect 

generic finding and suspend license renewal proceedings, pending a new rulemaking or 

update of the GEIS. However, the Commission treats all spent fuel accidents as generic, 

whatever their cause. There is to be no litigation of spent fuel accidents. Entergy Nuclear 

Generation Co. And Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), 

LBP-06-24, 64 NRC 257, 294-95 (2006), aff’d, CLI-07-3, 65 NRC 13 (2007). 

10 C.F.R. Part 51, Subpart A, Appendix B, Category 2 issues are site specific and must 

be addressed by the applicant in its environmental report and by the NRC in its draft and 

final SEISs for the facility. Florida Power & Light Co. (Turkey Point Nuclear Generating 

Plant, Units 3 & 4), LBP-01-6, 53 NRC 138, 153 (2001); Florida Power & Light Co. (Turkey 

Point Nuclear Generating Plant, Units 3 & 4), CLI-01-17), 54 NRC 3, 11 (2001). 

Probabilistic risk assessments are not required for the renewal of an operating license. 

Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), 

LBP-01-6, 53 NRC 138, 159-160 (2001). 

Offsite radiological impacts are classified as a Category 1 issue in 10 C.F.R. 51, 

Subpart A, Appendix B and, therefore, are excluded from consideration in this renewal 

proceeding. See Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, 

Units 3 & 4), LBP-01-6, 53 NRC 138, 162 (2001). 

Although 10 C.F.R. 51, Subpart A, Appendix B, Category 2 issues may be considered 

during the license renewal process, all the Category 2 groundwater conflict issues deal 

with the issue of withdrawal of groundwater by the applicant when there are competing 

groundwater uses. See Florida Power & Light Co. (Turkey Point Nuclear Generating 

Plant, Units 3 & 4), LBP-01-6, 53 NRC 138, 164 (2001). 

Issues involving the current licensing basis for the facility are not within the scope of 

review of license renewal. Florida Power & Light Co. (Turkey Point Nuclear Generating 

Plant, Units 3 & 4), LBP-01-6, 53 NRC 138, 165 (2001); Florida Power & Light Co. (Turkey 

Point Nuclear Generating Plant, Units 3 & 4), CLI-01-17, 54 NRC 3, 8-9 (2001); Entergy 

Nuclear Generation Co. And Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power 

Station), LBP-06-24, 64 NRC 257, 276 (2006). Contentions related to terrorism, lack of a 

valid National Pollutant Discharge Elimination System permit, and emergency planning 

are not aging-related issues and, therefore, are outside the scope of license renewal 

hearings. Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 

3), CLI-04-36, 60 NRC 631, 638-40 (2004). 

“Terrorism contentions, are by their very nature, directly related to security,” are unrelated 

to the detrimental effects of aging and, therefore, are “beyond the scope of, not ‘material’ 

to, and inadmissible in, a license renewal proceeding.” AmerGen Energy Co., LLC

(Oyster Creek Nuclear Generating Station), CLI-07-8, 65 NRC 124, 129 (2007), aff’d sub 

nom., New Jersey Department of Environmental Protection v. NRC, 561 F.3d 132 (3rd Cir. 

2009). Furthermore, NEPA imposes no legal duty upon the NRC to consider the 

environmental impacts of intentional malevolent acts in conjunction with commercial 

power reactor license renewal, and the NRC has already considered the environmental 
GENERAL MATTERS 46 JUNE 2011 

impacts of a hypothetical terrorist attack on a nuclear plant and found that these impacts 

would be no worse than those caused by internally initiated events. CLI-07-8, 

65 NRC at 29-131. The Third Circuit has upheld the Commission’s view and rejected the 

holding of the Ninth Circuit. New Jersey Department of Environmental Protection, 

561 F.3d at 143, 144. However, the Ninth Circuit has previously concluded that NEPA 

requires consideration of the environmental impacts of a terrorist attack. San Luis Obispo 

Mothers for Peace v. NRC, 449 F.3d 1016, 1028-35 (2006). The Commission has 

indicated that it will continue to follow its normal practice outside the Ninth Circuit. 

AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-07-8, 65 NRC 

124, 128-29 (2007). 

A request for the Commission to grant an exemption or waiver of 10 C.F.R. 50.47(a)(1), 

and thereby permit adjudication of emergency planning issues in a license renewal 

proceeding must meet the requirements of 10 C.F.R. § 2.335(b). Dominion Nuclear 

Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-05-24, 62 NRC 551, 

559-60 (2005). See infra Section 6.21.4 (discussing petitions for waiver). 

With respect to technical issues, the renewal regulations, 10 C.F.R. Part 54, are footed on 

the principle that, with the exception of the detrimental effects of aging and a few other 

issues related to safety only during the period of extended operations, the agency’s 

existing regulatory processes are sufficient to ensure that the licensing bases of operating 

plants provide an acceptable level of safety to protect the public health and safety. 

60 Fed. Reg. 22,464; Entergy Nuclear Generation Co. and Entergy Nuclear Operations, 

Inc. (Pilgrim Nuclear Power Station), LBP-08-22, 68 NRC 590, 598-600 (2008); Florida 

Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-01-17, 

54 NRC 3, 7-8 (2001); Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, 

Units 3 & 4), LBP-01-6, 53 NRC 138, 152 (2001). The NRC’s ongoing regulatory 

oversight process, which includes generic and plant-specific reviews, inspections, and 

enforcement actions, continuously assesses the adequacy of and compliance with the 

licensing basis. Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim 

Nuclear Power Station), CLI-10-14, 71 NRC __ (June 17, 2010) (slip op. at 4, 18, & n.76). 

The Commission has concluded that “the ‘only issue’ where the regulatory process may 

not maintain a plant’s current licensing basis involves the potential “detrimental effects of 

aging on the functionality of certain systems, structures, and components in the period of 

extended operation.” Nuclear Generation Co. and Entergy Nuclear Operations, Inc. 

(Pilgrim Nuclear Power Station), CLI-10-14, 71 NRC __ (June 17, 2010) (slip op. at 4-5). 

A petitioner in a license renewal proceeding must explain how an issue falls within the 

framework of license renewal, which “focuses on ‘the potential impacts of an additional 

20 years of nuclear power plant operation,’ not on everyday operational issues.” 

Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3), 

CLI-06-4, 63 NRC 32, 37 (2006) (quoting Dominion Nuclear Connecticut, Inc. (Millstone 

Nuclear Power Station, Units 2 & 3), CLI-04-36, 60 NRC 631, 637-38 (2004)); see also

Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear 

Power Station), LBP-08-22, 68 NRC 590, 598-600 (2008); Fla. Power & Light Co. (Turkey 

Point Nuclear Generating Plant, Units 3 & 4), CLI-01-17, 54 NRC 3, 7 (2001)). Arguments 

concerning licensee compliance with radiological dose limits and other current licensing 

basis requirements are ongoing operational issues and go to the adequacy of the NRC’s 

regulatory oversight process. Nuclear Generation Co. and Entergy Nuclear Operations, 

Inc. (Pilgrim Nuclear Power Station), CLI-10-14, 71 NRC __ (June 17, 2010) (slip op. 

at 15). Such matters are outside the scope of license renewal. Id.
JUNE 2011 GENERAL MATTERS 47 

The scope of a safety review for license renewal is limited to (1) managing the effects of 

aging of certain systems, structures, and components; (2) review of time-limited aging 

evaluations; and (3) any matters for which the Commission itself has waived the 

application of these rules. Entergy Nuclear Generation Co. and Entergy Nuclear 

Operations, Inc. (Pilgrim Nuclear Power Station), LBP-08-22, 68 NRC 590, 598-600 

(2008); Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), 

LBP-01-6, 53 NRC 138, 152 (2001). Entergy Nuclear Generation Co. And Entergy 

Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP-06-24, 64 NRC 257, 276, 

277 (2006). Three general categories of SSCs “fall within the ‘initial focus’” of license 

renewal review as outlined in 10 C.F.R. § 54.4. Nuclear Generation Co. and Entergy 

Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-14, 71 NRC __ 

(June 17, 2010) (slip op. at 7). Section 54.21 provides standards for license renewal 

applicant to determine which of the components within the three general categories 

defined in § 54.4 require aging management review. Id. Only those SSCs that perform 

“an intended function” as defined by § 54.4 require aging management review. Id. With 

respect to each structure, system, or component requiring aging management review, “a 

license renewal applicant must demonstrate that the ‘effects of aging will be adequately 

managed so that the intended function(s) [as defined in § 54.4] will be maintained 

consistent with the CLB for the period of extended operation.’” Nuclear Generation Co. 

and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-14, 

71 NRC __ (June 17, 2010) (slip op. at 8) (quoting 10 C.F.R. 54.21(a)(3)) (emphasis in 

original)). While some SSCs perform more than one function, the license renewal 

application is only required to provide reasonable assurance that SSCs “will perform such 

that the intended functions, as delineated in §54.4, are maintained consistent with the 

CLB.” Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear 

Power Station), CLI-10-14, 71 NRC __ (June 17, 2010) (slip op. at 17) (quoting License 

Renewal Rule, 60 Fed. Reg. 22,461, 22,479 (May 8, 1995)) (emphasis in original). 

The scope of Commission review determines the scope of admissible contentions in a 

renewal hearing absent a Commission finding under 10 C.F.R. 2.335 (formerly 2.758). 

60 Fed. Reg. 22,461, 22,482 n.2; Florida Power & Light Co. (Turkey Point Nuclear 

Generating Plant, Units 3 & 4), LBP-01-6, 53 NRC 138, 152 (2001). AmerGen Energy 

Co., LLC (Oyster Creek Nuclear Generating Station) et al., CLI-08-23, 68 NRC 461, 

466-68 (2008) (describing the scope of review for license renewal and the contents of a 

license renewal application). 

Under 10 C.F.R. §§ 54.21(a) and (c), and 54.4, the scope of a proceeding on an operating 

license renewal is limited to a review of the plant structures and components that will 

require an aging management review for the period of extended operation and the plant’s 

systems, structures, and components that are subject to an evaluation of time-limited 

aging analyses (TLAAs). Florida Power & Light Co. (Turkey Point Nuclear Generating 

Plant, Units 3 & 4), CLI-00-23, 52 NRC 327, 329 (2000). Amergen Energy Company, LLC

(Oyster Creek Nuclear Generating Station), LBP-06-22, 64 NRC 229, 235 (2006). Aging 

management programs (AMPs) for SSCs identified by 10 C.F.R. § 54.4 are within the 

scope of license renewal proceedings. For those SSCs subject to aging management 

review that are not current licensing basis (CLB) issues, discussion of proposed 

inspection and monitoring details will come before this Board only as they are needed to 

demonstrate that the applicant’s AMP does or does not achieve the desired goal of 

providing assurance that the intended function of relevant SSCs discussed herein will be 

maintained for the license renewal period. Entergy Nuclear Vermont Yankee, LLC and 
GENERAL MATTERS 48 JUNE 2011 

Entergy Nuclear Operations Inc. (Vermont Yankee Nuclear Power Station), LBP-08-25, 68 

NRC 763, 786 (2008); Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating 

Units 2 & 3), LBP-08-13, 68 NRC 43, 81 (2008). 

Pursuant to Section 54.21(a)(3), each application must contain an Integrated Plant 

Assessment (“IPA”) for which specified components will, inter alia, demonstrate that the 

effects of aging will be adequately managed so that the intended function(s) will be 

maintained consistent with the CLB for the period of extended operation. A commitment 

to develop a program does not demonstrate that the effects of aging will be adequately 

managed. Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 

2 & 3), LBP-08-13, 68 NRC 43, 86 (2008). The findings required by 10 C.F.R. § 54.29(a) 

are based upon both past and future actions—actions that “have been or will be taken.” 

Entergy Nuclear Vermont Yankee, LLC and Energy Nuclear Operations, Inc., (Vermont 

Yankee Nuclear Power Station) CLI-10-17, 71 NRC __ (July 8, 2010) (slip op. 44). 

Similarly, 10 C.F.R. § 54.21(c)(1) permits demonstrations after issuance of the renewed 

licenses: “an applicant’s use of an aging management program identified in the GALL 

Report constitutes reasonable assurance that it will manage the targeted aging effect 

during the renewal period.” Id. (quoting AmerGen Energy Co., LLC (Oyster Creek Nuclear 

Generating Station), CLI-08-23, 68 NRC 461, 468 (2010)). The GALL Report “was 

prepared at [the Commission’s] behest” and “provides that one way a license renewal 

applicant may demonstrate that an AMP will effectively manage the effects of aging during 

the period of extended operation is by stating that a program is ‘consistent with’ or ‘based 

on’ the GALL Report.” Entergy Nuclear Vermont Yankee, LLC and Energy Nuclear 

Operations, Inc., CLI-10-17, 71 NRC __ (July 8, 2010) (slip op. 45). 

Section 54.21(c)(1) focuses on TLAAs and requires that license renewal applications 

include an evaluation of TLAAs demonstrating either (i) that the analyses remain valid for 

the period of extended operation; (ii) the analyses have been projected to the end of the 

period of extended operation; or (iii) the effects of aging on the intended function(s) will be 

adequately managed for the period of extended operation. Options (i) and (ii) are distinct 

from option (iii) in that options (i) and (ii) require the applicant to demonstrate that the 

existing TLAAs in its CLB are either valid for the 20-year renewal term or have been 

projected to the end of that period. Option (iii), in contrast, does not rely on existing 

TLAAs in the applicant’s CLB, but upon an aging management plan. Entergy Nuclear 

Vermont Yankee, LLC and Energy Nuclear Operations, Inc., CLI-10-17, 71 NRC __ 

(July 8, 2010) (slip op. at 19-20). 

The Commission determined that it would be unnecessary and wasteful to require a full 

reassessment of issues that were thoroughly reviewed when the facility was first licensed 

and which are routinely monitored and assessed by agency oversight and mandated 

licensee programs. License renewal review focuses on “those potential detrimental 

effects of aging that are not routinely addressed by ongoing regulatory oversight 

programs.” Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, 

Units 3 & 4), CLI-01-17, 54 NRC 3, 7 (2001); Entergy Nuclear Generation Co. And 

Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP-06-24, 64 NRC 

257, 275-76 (2006). 

“[B]road-based issues akin to safety culture – such as operational history, quality 

assurance, quality control, management competence, and human factors – [are] beyond 

the bounds of a license renewal proceeding. This is because these conceptual issues fall 

outside the bounds of the passive, safety related physical systems, structures and 
JUNE 2011 GENERAL MATTERS 49 

components that form the scope of license renewal.” Northern States Power Co. (Prairie 

Island Nuclear Generating Plant, Units 1 & 2), CLI 10-27, __ NRC __ (slip op. at 10-11) 

(2010). Allowing inspection reports to “form the basis for a ‘safety culture’ contention 

could result in a potentially never-ending stream of mini-trials on operational issues.” Id.

at 11-12. 

The aging of materials is important during the period of extended operation, since certain 

components may have been designed upon an assumed service life of forty years. 

Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), 

CLI-01-17, 54 NRC 3, 7 (2001). Entergy Nuclear Generation Co. And Entergy Nuclear 

Operations, Inc. (Pilgrim Nuclear Power Station), LBP-06-24, 64 NRC 257, 276 (2006). 

Part 54 requires license renewal applicants to demonstrate how they will manage the 

effects of aging during the period of extended operation. Florida Power & Light Co.

(Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-01-17, 54 NRC 3, 8 (2001). 

Applicants must demonstrate how their programs will manage the effects of aging in a 

detailed manner with respect to specific components and structures, rather than at a more 

generalized system level. Entergy Nuclear Generation Co. And Entergy Nuclear 

Operations, Inc. (Pilgrim Nuclear Power Station), LBP-06-24, 64 NRC 257, 275 (2006). 

Before the NRC will grant a license renewal application, the applicant must reassess 

safety reviews or analyses made during the original license period that were based upon a 

presumed service life not exceeding the original license term. Florida Power & Light Co.

(Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-01-17, 54 NRC 3, 8 (2001). 

The reassessment must “(1) show that the earlier analysis will remain valid for the 

extended operation period; (2) modify and extend the analysis to apply to a longer term 

such as 60 years; or (3) otherwise demonstrate that the effects of aging will be adequately 

managed in the renewal term.” Florida Power & Light Co. (Turkey Point Nuclear 

Generating Plant, Units 3 & 4), CLI-01-17, 54 NRC 3, 8 (2001) (citations omitted). 

Sections 54.21 and 54.29 require that license renewal applications demonstrate by a 

preponderance of the evidence that aging management programs provide reasonable 

assurance that SSCs will continue to perform their intended functions consistent with the 

current licensing basis during the period of extended operation. Whether the reasonable 

assurance is met will be determined on a case-by-case basis using sound technical 

judgment. Reasonable assurance “is not susceptible to formalistic quantification 

(i.e., 95% confidence) or mechanistic application.” AmerGen Energy Co., LLC (Oyster 

Creek Nuclear Generating Station), LBP-07-17, 66 NRC 327, 340 (2007), aff’d CLI-09-07, 

69 NRC 235 (2009) 

Review of environmental issues in a licensing renewal proceeding is limited in accordance 

with 10 C.F.R. §§ 51.71(d) and 51.95(c). Florida Power & Light Co. (Turkey Point Nuclear 

Generating Plant, Unit 3 & 4), CLI-00-23, 52 NRC 327, 329 (2000); Entergy Nuclear 

Vermont Yankee, LLC and Entergy Nuclear Operations Inc. (Vermont Yankee Nuclear 

Power Station), LBP-08-25, 68 NRC 763, 785 (2008). 

Apart from its policy of encouraging settlements, the Commission has an equally 

important policy of supporting prompt decisionmaking. This promptness policy carries 

extra weight in license renewal proceedings. Further, until a Licensing Board has 

addressed the threshold issues of standing and admissibility of contentions, the 

proceeding is too inchoate to call for aggressive Board encouragement of settlement. 

Millstone, CLI-05-24, 62 NRC at 568-70. 
GENERAL MATTERS 50 JUNE 2011 

6.12 Masters in NRC Proceedings

For a discussion of the role of a “master” in NRC proceedings, see Toledo Edison Co.

(Davis-Besse Nuclear Power Station), ALAB-300, 2 NRC 752, 759 (1975) and Toledo 

Edison Co. (Davis-Besse Nuclear Power Station), ALAB-290, 2 NRC 401 (1975). In 

ALAB-300, the Appeal Board ruled that parties to an NRC proceeding may voluntarily 

agree among themselves to have a master of their own choosing make certain discovery 

rulings by which they will abide. In effect, the master’s rulings were like stipulations 

among the parties. The question as to whether the Licensing and Appeal Boards retained 

jurisdiction to review the master’s discovery rulings was not raised in this case. 

Consequently, the Appeal Board did not reach a decision as to that issue. Toledo Edison 

Co. (Davis-Besse Nuclear Power Station), ALAB-300, 2 NRC 752, 768 (1975). 

10 C.F.R. Part 2 provides for the use of special assistants to Licensing Boards. 

Specifically, special assistants may be appointed to take evidence and prepare a record. 

With the consent of all parties, the special assistant may take evidence and prepare a 

report that becomes a part of the record, subject to appeal to the Licensing Board. 

10 C.F.R. § 2.322 (formerly § 2.722). 

It is within the discretion of the Special Master to hold information confidential if to do so 

would increase the likelihood of a fair and impartial hearing. Metropolitan Edison Co.

(Three Mile Island Nuclear Station, Unit 1), LBP-81-50, 14 NRC 888, 894 (1981). 

A Special Master’s conclusions are considered as informed advice to the Licensing Board; 

however, the Board must independently arrive at its own factual conclusions. Where 

judgment is material to a particular conclusion, the Board must rely on its own collegial 

consensus. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), 

LBP-82-56, 16 NRC 281, 289 (1982). Pursuant to 10 C.F.R. § 2.322(a)(3), the regulations 

under which a Special Master may be appointed in NRC proceedings specify that Special 

Masters’ reports are advisory only. The Board alone is authorized by statute, regulation 

and the notice of hearing to render the initial decision in proceedings. The decision must 

be rendered upon the Board’s own understanding of the reliable, probative and substantial 

evidence of the record. Metropolitan Edison Co. (Three Mile Island Nuclear Station, 

Unit 1), LBP-82-56, 16 NRC 281, 288 (1982). 

Where the Special Master’s conclusions are materially affected by a witness’ demeanor, 

the Licensing Board must give especially careful consideration to whether or not other 

more objective witness credibility standards are consistent with the Special Master’s 

conclusions. However, the Licensing Board may afford weight to the Special Master’s 

reported direct observations of a witness’ demeanor. Metropolitan Edison Co. (Three Mile 

Island Nuclear Station, Unit 1), LBP-82-56, 16 NRC 281, 289 (1982) 

6.13 SAMA Analysis in Reactor License Renewal

The scope of the draft and final SEIS is limited to the matters that 10 C.F.R. 51.33(c) 

requires the applicant to provide in its environmental report. These requirements do not 

include severe accident risks, but only “severe accident mitigation alternatives (SAMA).” 

10 C.F.R. 51.53(c)(3)(ii)(L). The Commission, therefore, has left consideration of SAMAs 

as the only Category 2 issue with respect to severe accidents. Florida Power & Light Co.
JUNE 2011 GENERAL MATTERS 51 

(Turkey Point Nuclear Generating Plant, Units 3 & 4), LBP-01-6, 53 NRC 138, 160-161 

(2001). 

The purpose of a SAMA review is to ensure that any plant changes that have a potential 

for significantly improving severe accident safety performance are identified and 

addressed. Whether a SAMA must be analyzed in an environmental report hinges on 

whether it could potentially be cost-beneficial. Therefore, a petitioner must, at a minimum, 

address the approximate relative cost and benefit of the SAMA because without any 

notion of cost, it is difficult to assess whether a SAMA may be cost-beneficial and thus 

warrant serious consideration. Entergy Nuclear Operations, Inc. (Indian Point Nuclear 

Generating Units 2 & 3), LBP-08-13, 68 NRC 43, 102 n.308 (2008). SAMAs are rooted in 

a cost-benefit assessment. Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; 

Catawba Nuclear Station, Units 1 & 2), CLI-02-17, 56 NRC 1, 5 (2002), rev’g in part & 

aff’g in part LBP-02-04, 55 NRC 49 (2002); clarified, CLI-02-28, 56 NRC 373 (2002). Any 

number of possible SAMAs may be theoretically conceivable, but many will prove far too 

costly compared to the reduction in risk that they might provide. Duke Energy Corp.

(McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-02-17, 

56 NRC 1, 12 (2002). 

“NRC SAMA analyses are not a substitute for, and do not represent, the NRC NEPA 

analysis of potential impacts of severe accidents.” Entergy Nuclear Generation Co. and 

Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC __ 

(Mar. 26, 2010) (slip op. at 37). The GEIS for License Renewal “provides a generic 

evaluation of severe accident impacts and the technical basis for the NRC’s conclusion 

that ‘the probability weight consequences of atmospheric releases, fallout onto open 

bodies of water, releases to groundwater, and societal and economic impacts from severe 

accidents are small for all plants.’” Id. at 38. The NRC’s generic assessment of the 

environmental impacts of severe accidents for all existing plants during the license 

renewal term is bounding. Id. In contrast, SAMA analysis is site-specific mitigation 

analysis. Id. NEPA does not demand a “fully developed plan” or a “detailed examination 

of specific measures which will be employed” to mitigate adverse environmental effects. 

Id. (citing Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear 

Station, Units 1 & 2), CLI-03-17, 58 NRC 419, 431 and Robertson v. Methow Valley 

Citizens Council, 490 U.S. 332, 353 (1989)). See also Entergy Nuclear Generation Co. 

and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-22, 

71 NRC __ (Aug. 27, 2010) (slip op. at 9). Accordingly, “unless it looks genuinely 

plausible that inclusion of an additional factor or use of other assumptions or models may 

change the cost-benefit conclusions for the SAMA candidates evaluated, no purpose 

would be served to further refine the SAMA analysis, whose goal is only to determine 

what safety enhancements are cost-effective to implement.” CLI-10-11, 71 NRC __ 

(Mar. 26, 2010) (slip op. at 39). 

With respect to modeling, the mere fact that a plume model may not affect all 

meteorological phenomena does not necessarily mean the SAMA cost-benefit 

conclusions are incorrect. Entergy Nuclear Generation Co. and Entergy Nuclear 

Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-22, 71 NRC __ (Aug. 27, 2010) 

(slip op. at 9). 

The Commission has endorsed the distinction drawn by a Licensing Board between the 

need to propose a SAMA and the more substantive question of risk associated with 

severe accidents. It has also stated unequivocally that SAMAs apply to reactor accidents, 
GENERAL MATTERS 52 JUNE 2011 

not to spent fuel accidents. Entergy Nuclear Generation Co. and Entergy Nuclear 

Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-14, 71 NRC __ (June 17, 2010) 

(slip op. at 22, 34-35 & n.145). 

While the seismic SAMA methodology is outlined in the environmental report, a petitioner 

may assume that, because it cannot check all analysis details, the analysis is incomplete 

or incorrect. This is mere speculation and such speculation is insufficient to support the 

admissibility of this contention. A petitioner is not required to redo SAMA analyses in 

order to raise a material issue. Where a petitioner alleges that the SAMA was done, but 

that the analysis was significantly flawed due to the use of inaccurate factual assumptions, 

it may be used to support a contention. Entergy Nuclear Operations, Inc. (Indian Point 

Nuclear Generating Units 2 & 3), LBP-08-13, 68 NRC 43, 102 (2008). 

Onsite storage of spent fuel during the period of extended operation is a Category 1 issue 

and, therefore, has been found not to warrant any additional site-specific analysis of 

mitigation measures. Nuclear Generation Co. and Entergy Nuclear Operations, Inc.

(Pilgrim Nuclear Power Station), CLI-10-14, 71 NRC __ (June 17, 2010) (slip op. at 32). 

6.14 Materials Licenses

Notwithstanding the absence of a hearing on an application for a materials license, the 

Commission’s regulations require the Staff to make a number of findings concerning the 

applicant and its ability to protect the public health and safety before the issuance of a 

materials license. Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), 

ALAB-778, 20 NRC 42, 48 (1984). See 10 C.F.R. §§ 70.23, 70.31. Cf. South Carolina 

Electric & Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881, 

895-96 (1981) (finding the regulatory scheme for issuance of materials licenses analogous 

to the regulatory scheme for the issuance of operating licenses under 10 C.F.R. § 50.57), 

aff’d sub nom. Fairfield United Action v. NRC, 679 F.2d 261 (D.C. Cir. 1982). 

The production, processing and sale of uranium and uranium ore are controlled by the 

AEA, as amended. Homestake Mining Co. v. Mid-Continent Exploration Co., 

282 F.2d 787, 791 (10th Cir. 1960). Natural uranium and ores bearing it in sufficient 

concentration constitute “source material” and, when enriched for fabrication into nuclear 

fuel, become “special nuclear material” within the meaning of the Act. 

(42 U.S.C. § 2014(z) and (aa), 2071, 2091.) Both are expressly subject to Commission 

regulation (42 U.S.C. § 2073, 2093). 10 C.F.R. Parts 40 and 70 specifically provide for 

the domestic licensing of source and SNM respectively. 

In the special case of uranium enrichment facilities, Section 193 of the AEA “prescribes a 

one-step process, including a single adjudicatory hearing, that considers both construction 

and operation.” Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel 

Fabrication Facility), CLI-02-7, 55 NRC 205, 215-216 (2002); see 10 C.F.R. §§ 70.23a, 

70.31(e). 

The AEA is silent concerning any particular hearing or review requirements for the 

construction and operation of mixed oxide (MOX) fuel fabrication facilities. Thus, the 

Commission is free to establish a process to consider construction and operation of MOX 

facilities. Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication 

Facility), CLI-02-7, 55 NRC 205, 214-215 (2002). The key regulations governing a 

plutonium processing and fuel fabrication facility, 10 C.F.R. §§ 70.23(a)(7), 70.23(a)(8), 
JUNE 2011 GENERAL MATTERS 53 

and 70.23(b), contemplate two approvals, construction and operation. Duke Cogema 

Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), CLI-02-7, 

55 NRC 205, 216 (2002). In the construction authorization phase, the NRC is examining 

issues related only to construction, and the review is aimed at the findings required by 

10 C.F.R. § 70.23(b) for construction approval. Duke Cogema Stone & Webster

(Savannah River Mixed Oxide Fuel Fabrication Facility), CLI-02-7, 55 NRC 205, 217 

(2002). 

A Part 40 license applicant need not provide as part of the application process the names 

of the individuals who will fill positions within its organization in order to demonstrate the 

technical qualifications of the applicant’s personnel. A commitment to hire qualified 

personnel prior to operations suffices. Hydro Resources, Inc., CLI-00-12, 52 NRC 1, 4 

(2000). 

The NRC has granted a general license to acquire title to nuclear fuel without first 

obtaining a specific license. A general license is a license under the AEA that is granted 

by rule and may be used by anyone who meets the term of the rule, “without the filing of 

applications with the Commission or the issuance of licensing documents to particular 

persons.” 10 C.F.R. § 70.18. NRC rules establish many general licenses, including a 

general license for NRC licenses to transport licensed nuclear material in NRC-approved 

containers. 10 C.F.R. § 71.12. State of New Jersey, CLI-93-25, 38 NRC 289, 293-94 

(1993). 

Persons may obtain title and own uranium fuel and are free to contract to receive title to 

such fuel without an NRC license or specific NRC regulatory control. Rochester Gas & 

Electric Corp. (Sterling Power Project, Nuclear Unit 1), ALAB-507, 8 NRC 551, 554-55 

(1978). It is only when a person seeks to reduce its contractual ownership to actual 

possession that regulatory requirements on possession and use must be met and a 

specific materials license must be obtained. Sterling, supra, ALAB-507, 8 NRC at 555. 

There would be no point to the NRC’s general licensing scheme if a licensee’s mere use 

of a general license triggered individual licensing proceedings. State of New Jersey, 

CLI-93-25, 38 NRC 289, 294 (1993). 

6.14.1 Written Presentations in Materials Proceedings 

After the hearing file is made available, intervenors may file a written presentation and 

may also present in writing, under oath or affirmation, arguments, evidence, and 

documentary data further explaining their concerns. They must describe any defect or 

omissions in the application; however, the applicant or licensee seeking the license 

from the NRC has the burden of proof with respect to the controversies placed into 

issue by the intervenors. Babcock & Wilcox Co. (Pennsylvania Nuclear Services 

Operations, Parks Township, PA), LBP-95-1, 41 NRC 1, 3 (1995). 

Section 2.1208 (formerly 2.1233) of Subpart L provides for written presentations. It 

does not by its terms restrict the intervenors’ written presentation to stating concerns 

falling within the area of concerns raised in the initial request. However, the overall 

scheme of Subpart L clearly anticipates that specific concerns set out in the written 

presentation must fall within the scope of the areas of concerns advanced by a 

petitioner in the request for hearing and accepted as issues in the hearing by the 
GENERAL MATTERS 54 JUNE 2011 

presiding officer. Babcock and Wilcox Co. (Pennsylvania Nuclear Services Operations, 

Parks Township, PA), LBP-95-1, 41 NRC 1, 5 (1995). 

 

Section 2.1208 (formerly 2.1233(a)) accords the Presiding Officer the discretion both to 

determine the sequence in which the parties present their arguments, documentary 

data, informational materials, and other supporting written evidence and to offer 

individual parties the opportunity to provide further data, material, and evidence in 

response to the Presiding Officer’s questions. Curators of University of Missouri, 

CLI-95-1, 41 NRC 71, 117 (1995). Section 7(c) and the Administrative Procedure Act 

do not apply to informal hearings conducted pursuant to Subpart L. 

The Commission’s regulations and practice do not preclude an applicant from 

submitting post-application affidavits into the record of a materials licensing 

proceeding. Such affidavits fall within the types of documents that the Presiding Officer 

has the discretion to allow into the record pursuant to Section 2.1208 (formerly 

Section 2.1233(d)). The Commission practice of permitting the licensee to file such 

supplemental supporting evidence in a Subpart G proceeding applies equally well to a 

Subpart L proceeding. Curators of University of Missouri, CLI-95-1, 41 NRC 71, 114 

(1995). Affidavits submitted during a hearing are explanatory material offered to aid in 

the understanding of the underlying applications; they do not constitute amendments to 

the applications. Id. at 114. 

The Presiding Officer in a Subpart L proceeding has broad discretion to determine the 

point at which the intervenors have been accorded sufficient opportunity to respond to 

all issues of importance raised by the licensee. If the Presiding Officer needs 

information to compile an adequate record, he may obtain it by posing questions 

pursuant to Section 2.1208. Curators of University of Missouri, CLI-95-1, 41 NRC 71, 

116-17 (1995). The Commission’s intent in promulgating Subpart L was to decrease 

the cost and delay for the parties and the Commission and to empower presiding 

officers to manage and control the parties’ written submissions. CLI-95-1, 41 NRC at 

117, n.54. 

6.14.2 Stays of Material Licensing Proceedings 

A motion for a stay in a materials licensing proceeding must comply with the 

requirements of 10 C.F.R. § 2.1213 (formerly § 2.1263) which incorporate the four stay 

criteria of 10 C.F.R. § 2.342 (formerly § 2.788); the movant has the burden of 

persuasion on the criteria. Umetco Minerals Corp., LBP-92-20, 36 NRC 112, 115-116 

(1992). See Section 5.7.1, “Requirements for a Stay Pending Review.” 

Although a hearing petition regarding a materials license amendment request generally 

can be filed as soon as an amendment application is submitted to the agency, a 

request for a stay of the amendment proceeding is not appropriate until the Staff has 

taken action to grant the amendment request and to make the approved licensing 

action effective. See 10 C.F.R. § 2.1213 (formerly § 2.1263); Babcock & Wilcox

(Apollo, PA, Fuel Fabrication Facility), LBP-92-35, 36 NRC 355, 359 (1992), citing

Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-91-8, 33 NRC 

461, 468 (1991). 

A license may be granted containing a condition, such as a requirement for subsequent 

testing, before material may be imported under the license. The condition does not 
JUNE 2011 GENERAL MATTERS 55 

create a fresh opportunity for filing a request for a stay. Timeliness depends on when 

the amendment was issued and not on the fulfillment of subsequent conditions. 

International Uranium (USA) Corp. (Receipt of Material from Tonawanda, NY), 

LBP-98-19, 48 NRC 83, 84-85 (1998). 

The Virginia Petroleum Jobbers criteria for granting a stay have been incorporated into 

the regulations at 10 C.F.R. § 2.342(e) (formerly § 2.788(e)). Southern California 

Edison Co. (San Onofre Nuclear Generating Station, Units 2 & 3), ALAB-680, 16 NRC 

127, 130 (1982); Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-94-

3, 39 NRC 95, 100 (1994) (the Commission will decline a grant of petitioner’s request 

to halt decommissioning activities where petitioner failed to meet the four traditional 

criteria for injunctive relief); Hydro Resources, Inc., LBP-98-5, 47 NRC 119, 120 

(1998). Since that section merely codifies longstanding agency practice which 

parallels that of the courts, Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB458, 7 NRC 155, 170 (1978), prior agency case law delineating the application of the 

Virginia Petroleum Jobbers criteria presumably remains applicable. 

Under the Virginia Petroleum Jobbers test, four factors are examined: 

 (1) has the movant made a strong showing that it is likely to prevail upon the 

 merits of its appeal; 

 (2) has the movant shown that, without the requested relief, it will be 

 irreparably injured; 

 (3) would the issuance of a stay substantially harm other parties interested in 

 the proceeding; 

 (4) where does the public interest lie? 

No one criterion is dispositive. International Uranium (USA) Corp. (White Mesa 

Uranium Mill), LBP-02-9, 55 NRC 227, 232 (2002), see Cleveland Electric Illuminating 

Co. (Perry Nuclear Power Plant, Units 1 & 2), ALAB-820, 22 NRC 743, 746 n.8 (1985); 

Babcock and Wilcox (Apollo, PA, Fuel Fabrication Facility), LBP-92-31, 36 NRC 255 

(1992). The Commission has stated that the most important of these criteria is whether 

there is irreparable harm. International Uranium (USA) Corp. (White Mesa Uranium 

Mill), LBP-02-9, 55 NRC 227, 232 (2002), see also Public Service Co. of New 

Hampshire (Seabrook Station, Units 1 & 2), CLI-90-3, 31 NRC 219, 258 (1990). 

A presiding officer’s determination to permit a hearing petition, concerning a licensing 

action, to be supplemented does not automatically extend the time for filing a stay 

request regarding that action. A litigant that wishes to extend the time for making a 

filing must do so by making an explicit request. See 10 C.F.R. § 2.307 (formerly 

§ 2.711). Babcock & Wilcox (Apollo, PA, Fuel Fabrication Facility), LBP-92-31, 

36 NRC 255, 262 (1992). 

In addressing the stay criteria in a Subpart L proceeding, a litigant must come forth with 

more than general or conclusory assertions in order to demonstrate its entitlement to 

relief. Babcock & Wilcox (Apollo, PA, Fuel Fabrication Facility), LBP-92-31, 36 NRC 

255, 263 (1992), citing United States Department of Energy (Clinch River Breeder 

Reactor Plant), ALAB-721, 17 NRC 539, 544 (1983). 
GENERAL MATTERS 56 JUNE 2011 

6.14.3 Scope of Materials Proceedings/Authority of Presiding Officer 

A nonadjudicatory request for relief under 10 C.F.R. § 2.206 generally is not a matter 

within the province of a presiding officer. Babcock and Wilcox (Apollo, Pennsylvania 

Fuel Fabrication Facility), LBP-92-35, 36 NRC. 355, 359, n.11 (1992). 

There is no reason to believe that the granting of an SNM license should be deferred 

until after the applicant shows its compliance with local laws. Cleveland Electric 

Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), LBP-83-38, 18 NRC 61, 65 

(1983). 

The presiding officer may certify questions to the Commission pursuant to the authority 

of 10 C.F.R. § 2.319 (formerly § 2.1209(d)). Sequoyah Fuels Corp. (Gore, Oklahoma 

Site), LBP-03-7, 57 NRC 287, 291 (2003), certified questions accepted, CLI-03-6, 

57 NRC 547 (2003). 

6.14.4 Amendments to Material Licenses 

An amendment to a Part 70 application gives rise to the same rights and duties as the 

original application. Philadelphia Electric Co. (Limerick Generating Station, 

Units 1 & 2), ALAB-778, 20 NRC 42, 48 (1984). The Commission does not require that 

proposed safety procedures to protect health and minimize danger to life or property be 

included in a materials license amendment application if they have already been 

submitted to the Commission in previous applications associated with the same NRC 

license. Sections 70.21(a)(3) and 30.32(a) of the Commission’s regulations expressly 

permit an applicant to incorporate by reference any information contained in previous 

applications, statements or reports filed with the Commission. Curators of University of 

Missouri, CLI-95-1, 41 NRC 71, 99 (1995). 

A separate EIS is not required for an SNM license to receive fuel at a new facility. 

When an EIS has been done for an operating license application, including the delivery 

of fuel, there is no need for each component to be analyzed separately on the 

assumption that a plant may never be licensed to operate. Cleveland Electric 

Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), LBP-83-38, 18 NRC 61, 65 

(1983). Although the Commission’s regulations do not require the licensee to submit 

emergency procedures as part of an amendment application, the Commission is free to 

consider a licensee’s general emergency procedures when resolving risk issues. 

Curators of the University of Missouri, CLI-95-8, 41 NRC 386, 398 (1995). 

6.14.5 Materials License – Renewal 

Pursuant to the former 10 C.F.R. § 40.42(e), a source material license may remain 

automatically in effect beyond its expiration date to allow a licensee to continue 

decommissioning and security activities authorized under the license. Section 40.42(e) 

has been superseded by a new automatic license extension provision, 

10 C.F.R. § 40.42(c) which became effective Aug. 1994. Sequoyah Fuels Corp. (Gore, 

OK, site), CLI-95-2, 41 NRC 179, 183, n.10, 187 (1995). 
JUNE 2011 GENERAL MATTERS 57 

The automatic license extension provision under 10 C.F.R. § 40.42(c) may extend a 

license regardless of the nature of the source material remaining on site. The 

“necessary” provision (which appears in both the former Section 40.42(e) and the new 

Section 40.42(c)) simply means that the limited regulatory license extension comes into 

play only when decommissioning cannot be completed prior to the license’s expiration 

date. Sequoyah Fuels Corp. (Gore, OK, site), CLI-95-2, 41 NRC 179, 187-88 (1995). 

The automatic license extension provision grants the licensee no sweeping powers, but 

permits only limited activities related to decommissioning and to control of entry to 

restricted areas. Such activities also must have been approved under the licensee’s 

initial license. To implement an activity not previously authorized by its license, and 

thus not previously subject to challenge, the licensee must first obtain a license 

amendment. Sequoyah Fuels Corp. (Gore, OK, site), CLI-95-2, 41 NRC 179, 191 

(1995). 

Licensees need only submit the final radiological survey showing that the site or area is 

suitable for release in accordance with NRC regulations after decommissioning has 

been completed. Sequoyah Fuels Corp. (Gore, OK, site), CLI-95-2, 41 NRC 179, 189 

(1995). 

6.14.6 Termination of Material License 

A materials licensee may not unilaterally terminate its license where continuing health 

and safety concerns remain. A license to receive, process, and transport radioactive 

waste to authorized land burial sites imposes a continuing obligation on the licensee to 

monitor and maintain the burial sites. The requirement of state ownership of land 

burial sites is intended to provide for the ultimate, long-term maintenance of the sites, 

not to shift the licensee’s continuing responsibility for the waste material to the states. 

U.S. Ecology. Inc. (Sheffield, Illinois Low-Level Radioactive Waste Disposal Site), 

LBP-87-5, 25 NRC 98, 110-11 (1987), vacated, ALAB-866, 25 NRC 897 (1987). 

6.15 Motions in NRC Proceedings

Provisions with regard to motions in general in NRC proceedings are set forth in 

10 C.F.R. § 2.323 (formerly § 2.730). 

A moving party has no right of reply to answers in NRC proceedings except as permitted 

by the presiding officer. Philadelphia Electric Co. (Limerick Generating Station, 

Units 1 & 2), LBP-82-72, 16 NRC 968, 971 (1982), citing 10 C.F.R. § 2.323 (formerly 

§ 2.730); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-91-8, 

33 NRC 461, 469 (1991). Further, parties who do not seek leave to file a reply are 

expressly denied the opportunity to do so. Sequoyah Fuels Corp. LBP-94-39, 40 NRC 

314 (1994). 

Commission Rules of Practice make no provision for motions for orders of dismissal for 

failing to state a legal claim. However, the Federal Rules of Civil Procedure do in 

Rule 12(b)(6), and Licensing Boards occasionally look to federal cases interpreting that 

rule for guidance. In the consideration of such dismissal motions, which are not generally 

viewed favorably by the courts, all factual allegations of the complaint are to be 

considered true and to be read in a light most favorable to the nonmoving party. 
GENERAL MATTERS 58 JUNE 2011 

Sequoyah Fuels Corp. and General Atomics (Gore, Oklahoma Site Decontamination and 

Decommissioning Funding), LBP-94-17, 39 NRC 359, 365 (1994). 

Although the Rules of Practice do not explicitly provide for the filing of either objections to 

contentions or motions to dismiss them, each presiding board must fashion a fair 

procedure for dealing with such objections to petitions as are filed. The cardinal rule of 

fairness is that each side must be heard. Houston Lighting & Power Co. (Allens Creek 

Nuclear Generating Station, Unit 1), ALAB-565, 10 NRC 521, 524 (1979). 

Prior to entertaining any suggestions that a contention not be admitted, the proponent of 

the contention must be given some chance to be heard in response, because they cannot 

be required to have anticipated in the contentions themselves the possible arguments 

their opponents might raise as grounds for dismissing them. Contentions and challenges 

to contentions in NRC licensing proceedings are analogous to complaints and motions to 

dismiss in federal court. Houston Lighting & Power Co. (Allens Creek Nuclear Generating 

Station, Unit 1), ALAB-565, 10 NRC 521, 525 (1979). 

A motion for “clarification” filed nearly three weeks after the Staff order at issue had been 

revised (and nine weeks after the initial Staff order was issued) was found to be 

inexcusably late, as Commission rules (10 C.F.R. § 2.323(a)) require motions to be filed 

no more than ten (10) days after “the occurrence or circumstance from which the motion 

arises” and petitioners showed no good cause for their delayed filing. FirstEnergy Nuclear 

Operating Co. (Beaver Valley Power Station, Units 1 & 2; Davis-Besse Power Station, 

Unit 1; Perry Nuclear Power Plant, Unit 1), CLI-06-2, 63 NRC 9, 18 n.36 (2006). 

The Board declined to grant a motion to strike portions of petitioner’s reply that raised new 

arguments supporting a contention. The Board recognized that a reply may only provide 

“legitimate amplification” to a contention and may not raise new arguments. Thus, the 

Board declined to consider any portions of a reply that did not provide legitimate 

amplification to proffered contentions. Nonetheless, out of an abundance of caution, the 

Board allowed the entire reply to remain in the record. PPL Susquehanna, LLC

(Susquehanna Steam Electric Station, Units 1 & 2), LBP-07-4, 65 NRC 281, 299-302 

(2007). 

6.15.1 Form of Motion 

The requirements with regard to the form and content of motions are set forth in 

10 C.F.R. § 2.323(b) (formerly § 2.730(b)). 

The Appeal Board expects the caption of every filing in which immediate affirmative 

relief is requested to reference that fact explicitly by adverting to the relief sought and 

including the word “motion.” The movant will not be heard to assert that it has been 

prejudiced by the Board’s failure to take timely action on the motion in the absence of 

such a reference. Duke Power Co. (Cherokee Nuclear Station, Units 1, 2, & 3), 

ALAB-457, 7 NRC 70, 71 (1978). 

6.15.1.1 Consultation Requirement (10 C.F.R. § 2.323(b)) 

In dicta, one Board has stated that compliance with the 10 C.F.R. § 2.323(b) 

requirement that a movant make a “sincere effort to contact other parties in the 

proceeding and to resolve the issues raised in the motion” can only be determined 
JUNE 2011 GENERAL MATTERS 59 

from the objective reasonableness of the movant’s efforts, as shown by all the facts 

and circumstances, not by his or her subjective intent. Entergy Nuclear Vermont 

Yankee, L.L.C., and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear 

Power Station), LBP-06-5, 63 NRC 116, 129 (2006). 

Although it determined that a ruling on compliance with the 10 C.F.R. § 2.323(b) 

“attempt at resolution” requirement was not necessary to its decision, a Board noted 

that where a movant had 10 months to prepare a summary disposition motion, a 

consultation call to the opposing party on the last day the motion could be filed (in 

effect asking only if the intervenor wanted to agree to drop its contention) indicated 

a lack of a sincere effort to resolve the issues as required by § 2.323(b). Entergy 

Nuclear Vermont Yankee, L.L.C., and Entergy Nuclear Operations, Inc. (Vermont 

Yankee Nuclear Power Station), LBP-06-5, 63 NRC 116, 129-131 (2006). 

Although it determined that a ruling on compliance with the 10 C.F.R. § 2.323(b) 

“attempt at resolution” requirement was not necessary to its decision, a Board noted 

that even if a party moving for summary disposition believes that consultation with 

an opposing party about such a motion might prove futile, the regulation requires 

some reasonable effort. Entergy Nuclear Vermont Yankee, L.L.C., and Entergy 

Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-06-5, 

63 NRC 116, 130-31 (2006). 

A moving party must consult with other parties before filing a motion pursuant to 

10 C.F.R. § 323(b). Had the moving party consulted with other parties, it would 

have learned the pending motion was moot. Therefore, the motion was dismissed. 

PPL Susquehanna, LLC (Susquehanna Steam Electric Station, Units 1 & 2), 

LBP-07-4, 65 NRC 281, 297-99 (2007). 

6.15.2 Responses to Motions 

6.15.2.1 Time for Filing Responses to Motions 

Unless specific time limits for responses to motions are expressly set out in specific 

regulations or are established by the presiding adjudicatory board, the time within 

which responses to motions must be filed is set forth in 10 C.F.R. § 2.323 (formerly 

§ 2.730). 

If a document requiring a response within a certain time after service is served 

incompletely (e.g., only part of the document is mailed), 10 C.F.R. § 2.305 (formerly 

§ 2.712) would indicate that the time for response does not begin to run. Implicit in 

this rule is that documents mailed are complete, otherwise service is not effective. 

Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-235, 8 AEC 645, 649 n.7 

(1974) (dictum). 

6.15.3 Licensing Board Actions on Motions 

Although an intervenor may have failed, without good cause, to timely respond to an 

applicant’s motion to terminate the proceeding, a Board may grant the intervenor an 

opportunity to respond to the applicant’s supplement to the motion to terminate. Public 

Service Co. of Indiana and Wabash Valley Power Ass’n (Marble Hill Nuclear 

Generating Station, Units 1 & 2), LBP-86-16, 23 NRC 789, 790 (1986). 
GENERAL MATTERS 60 JUNE 2011 

If a Licensing Board decides to defer indefinitely a ruling on a motion of some 

importance, “considerations of simple fairness require that all parties be told of that 

fact.” Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-417, 5 NRC 1442, 

1444 (1977). 

When an applicant for an operating license files a motion for authority to conduct lowpower testing in a proceeding where the evidentiary record is closed but the Licensing 

Board has not yet issued an initial decision finally disposing of all contested issues, the 

Board is obligated to issue a decision on all outstanding issues (i.e., contentions 

previously litigated) relevant to low-power testing before authorizing such testing. See

10 C.F.R. § 50.57(c). Such a motion, however, does not automatically present an 

opportunity to file new contentions specifically aimed at low-power testing or any other 

phase of the operating license application. Pacific Gas & Electric Co. (Diablo Canyon 

Nuclear Power Plant, Units 1 & 2), ALAB-728, 17 NRC 777, 801 n.72 (1983), review 

denied, CLI-83-32, 18 NRC 1309 (1983); Public Service Co. of New Hampshire

(Seabrook Station, Units 1 & 2), LBP-86-34, 24 NRC 549, 553 (1986), aff’d, ALAB-854, 

24 NRC 783 (1986). 

6.16 NEPA Considerations

By its terms, NEPA imposes procedural rather than substantive constraints upon an 

agency’s decisionmaking process: The statute requires only that an agency undertake an 

appropriate assessment of the environmental impacts of its action without mandating that 

the agency reach any particular result concerning that action. See, e.g., Robertson v. 

Methow Valley Citizens Council, 490 U.S. 332, 350 (1989); Babcock & Wilcox (Apollo, PA, 

Fuel Fabrication Facility), LBP-93-4, 37 NRC 72, 93 (1993); Louisiana Energy Services

(Claiborne Enrichment Center), LBP-96-25, 44 NRC 331, 341-42 (1996); Northeast 

Nuclear Energy Co. (Millstone Nuclear Power Station, Unit 3), CLI-01-3, 53 NRC 22, 44 

(2001). 

NEPA requires the Commission to consider environmental factors in granting, denying or 

conditioning a construction permit. It does not give the Commission the power to order an 

applicant to construct a plant at an alternate site or to order a different utility to construct a 

facility. Nevertheless, the fact that the Commission is not empowered to implement 

alternatives does not absolve it from its duty to consider them. Natural Resources 

Defense Council v. Morton, 458 F.2d 827 (D.C. Cir. 1972); Public Service Co. of New 

Hampshire (Seabrook Station, Units 1 & 2), CLI-77-8, 5 NRC 503 (1977). 

NEPA imposes a procedural requirement on an agency’s decisionmaking process by 

mandating that an agency consider the environmental impacts of a proposed action and 

inform the public that it has taken those impacts into account in making its decision. In 

other words, an agency must take a “hard look” at the environmental consequences of 

a proposed action before taking that action. Nuclear Fuel Servs., Inc., LBP-05-8, 

61 NRC 202, 207 (2005) (citing Vermont Yankee Nuclear Power Corp. v. Natural Res. 

Def. Council, 435 U.S. 519, 558 (1978) and quoting Balt. Gas & Elec. Co. v. Natural Res. 

Def. Council, 462 U.S. 87, 97 (1983)). 

NEPA’s requirement that federal agencies prepare an EIS serves an action-forcing 

function in two ways. First, it ensures that the agency will have available and will consider 

detailed environmental impact information. Second, it guarantees that the relevant 
JUNE 2011 GENERAL MATTERS 61 

environmental information will be available to the wider audience that may play a role in 

the decisionmaking and in the implementation of the decision reached. Entergy Nuclear 

Generation Co. And Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), 

LBP-06-24, 64 NRC 257, 277 (2006). 

NEPA does not require the use of best scientific technology. Entergy Nuclear Generation 

Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-11, 

71 NRC __ (Mar. 26, 2010) (slip op. at 37). NEPA must be construed “in the light of 

reason if it is not to demand virtually infinite study and resources.” Id. (quoting Natural 

Resources Defense Council v. Hodel, 865 F.2d 288, 294 (D.C. Cir. 1988)). An EIS is not 

intended to be a research document reflecting the latest technology, data, and methods. 

Id. at 37. Because there “will also be more data that could be gathered,” agencies “must 

have some discretion to draw the line and move forward with decisionmaking.” Id.

(quoting Town of Winthrop v. FAA, 535 F.3d 1, 11-13 (1st Cir. 2008). 

NEPA requirements apply to license amendment proceedings as well as to construction 

permit and operating license proceedings. In license amendment proceedings, however, 

a Licensing Board should not embark broadly upon a fresh assessment of the 

environmental issues which have already been thoroughly considered and which were 

decided in the initial licensing decision. Rather, the Board’s role in the environmental 

sphere will be limited to assuring itself that the ultimate NEPA conclusions reached in the 

initial decision are not significantly affected by such new developments. Detroit Edison 

Co. (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-11, 7 NRC 381, 393 (1978), citing

Georgia Power Co. (Alvin W. Vogtle Nuclear Plant, Units 1 & 2), ALAB-291, 2 NRC 404, 

415 (1975). 

NEPA does not mandate that environmental issues considered in the construction permit 

proceedings be considered again in the operating license hearing, absent new 

information. Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), 

LBP-82-43A, 15 NRC 1423, 1459 (1982). With regard to license amendments, it has 

been held that the grant of a license amendment to increase the storage capacity of a 

spent fuel pool is not a major Commission action significantly affecting the quality of the 

human environment, and therefore, no EIS is required. Public Service Electric & Gas 

Company (Salem Nuclear Generating Station, Unit 1), LBP-80-27, 12 NRC 435, 456 

(1980); Portland General Electric Co. (Trojan Nuclear Plant), ALAB-531, 9 NRC 263, 

264-268 (1979). 

In System Energy Resources, Inc. (Early Site Permit for Grand Gulf ESP Site), CLI-07-14, 

65 NRC 216, 219 (2007), the EIS alternative analysis performed for the ESP proceeding 

assumed a power level of 2,000 megawatts electric (MWe). If a different reactor design, 

with a different MWe value, was chosen at a later proceeding, it would not necessarily 

require a full reanalysis of alternatives; however, a significance analysis would need to be 

performed to determine if the new value would affect the original EIS alternative analysis 

such that a full reanalysis of alternatives would be necessary. Id.

Under NEPA, when several proposals for actions that will have a cumulative or synergistic 

environmental impact upon a region are pending concurrently before an agency, their 

environmental consequences must be considered together. Sequoyah Fuels Corp. (Gore, 

OK, Site Decommissioning), LBP-99-46, 50 NRC 386 (1999). The term “synergistic” 

refers to the joint action of different parts – or sites – which, acting together, enhance the 
GENERAL MATTERS 62 JUNE 2011 

effects of one or more individual sites. Sequoyah Fuels Corp. (Gore, OK, Site 

Decommissioning), LBP-99-46, 50 NRC 386 (1999). 

After examining an agency action to determine its impact on the environment, the Council 

on Environmental Quality’s (CEQ’S) regulations, 40 C.F.R. §§ 1500 et seq., suggest 

several basic options if it determines that a project will have potential adverse 

environmental consequences. Disapproval of a project may be warranted where the 

adverse impacts are too severe. However, an agency may decide that aspects of the 

project may be modified in order to reduce the adverse impacts to an acceptable level. 

An agency could then proceed to license the project, after a determination that the overall 

benefits of the project exceed environmental and other costs, and that there are no 

obviously superior alternatives of which the agency is aware. Private Fuel Storage, L.L.C.

(Independent Spent Fuel Storage Installation), LBP-02-8, 55 NRC 171, 191 (2002). The 

Commission has stated that “the NRC as an independent regulatory agency can be bound 

by CEQ’s NEPA regulations only insofar as those regulations are procedural or ministerial 

in nature. NRC is not bound by those portions of CEQ’s NEPA regulations which have a 

substantive impact on the way in which the Commission performs its regulatory functions.” 

49 Fed. Reg. 9,352 (Mar. 12, 1984). But the Commission also has an “announced policy 

to take account of the [CEQ regulations] voluntarily, subject to certain conditions.” 

10 C.F.R. § 51.10(a). 

“[T]he Commission is under a dual obligation: to pursue the objectives of the Atomic 

Energy Act and those of the National Environmental Policy Act. ‘The two statutes and the 

regulations promulgated under each must be viewed in pari materia.’” Tennessee Valley 

Authority (Phipps Bend Nuclear Plant, Units 1 & 2), ALAB-506, 8 NRC 533, 539 (1978). 

(emphasis in original) In fulfilling its obligations under NEPA, the NRC may impose upon 

applicants and licensees conditions designed to minimize the adverse environmental 

effects of licensed activities. Such conditions may be imposed even on other federal 

agencies, such as TVA, which seek NRC licenses, despite the language of Section 271 of 

the AEA (42 U.S.C. § 2018) which states, in part, that nothing in the Act shall be 

construed to affect the authority of any federal, state or local agency with respect to the 

generation, sale, or transmission of electric power through the use of nuclear facilities 

licensed by the Commission. Tennessee Valley Authority (Phipps Bend Nuclear Plant, 

Units 1 & 2), ALAB-506, 8 NRC 533, 541-544 (1978). Unless it was explicitly made 

exclusive, the authority of other federal, state or local agencies or government 

corporations to consider the environmental consequences of a proposed project does not 

preempt the NRC’s authority to condition its permits and licenses pursuant to NEPA. For 

example, TVA’s jurisdiction over environmental matters is not exclusive where TVA seeks 

a license from a federal agency, such as the NRC, which also has full NEPA 

responsibilities. Tennessee Valley Authority (Phipps Bend Nuclear Plant, Units 1 & 2), 

LBP-77-14, 5 NRC 494 (1977). But see, Nat’l Ass’n of Home Builders v. Defenders of 

Wildlife, 551 U.S. 644, 667-68 (2007) (citing Dep’t of Transp. v. Public Citizen, 

541 U.S. 752, 770 (2004) (noting that agencies must only follow NEPA for discretionary 

actions because “an agency cannot be considered the legal ‘cause’ of an action that it has 

no statutory discretion not to take”). 

Pursuant to the Nuclear Waste Policy Act of 1982, the Department of Energy (DOE) has 

primary responsibility for evaluating the environmental impacts related to the development 

and operation of geologic repositories for high-level radioactive waste. In any proceeding 

for the issuance of a license for such a repository, the NRC will review and, to the extent 

practicable, adopt the EIS submitted by DOE with its license application. The NRC will 
JUNE 2011 GENERAL MATTERS 63 

not adopt the EIS if: (1) the action which the NRC proposes to take is different from the 

action described in the DOE license application, and the difference may significantly affect 

the quality of the human environment; or (2) significant and substantial new information or 

new considerations render the EIS inadequate. 10 C.F.R. § 51.109(c). To the extent that 

the NRC adopts the EIS prepared by DOE, it has fulfilled all of its NEPA responsibilities. 

10 C.F.R. § 51.109(d); 54 Fed. Reg. 27,864, 27,871 (July 3, 1989). 

NEPA directs all federal agencies to comply with its requirements “to the fullest extent 

possible” (42 U.S.C. § 4332). The leading authorities teach that an agency is excused 

from those NEPA duties only “when a clear and unavoidable conflict in statutory authority 

exists.” Tennessee Valley Authority (Phipps Bend Nuclear Plant, Units 1 & 2), ALAB-506, 

8 NRC 533, 545 (1978). 

While the authority of other federal or local agencies to consider the environmental effects 

of a project does not preempt the NRC’s authority with regard to NEPA, the NRC, in 

conducting its NEPA analysis, may give considerable weight to action taken by another 

competent and responsible government authority in enforcing an environmental statute. 

Public Service Co. of Oklahoma (Black Fox Station, Units 1 & 2), LBP-78-28, 8 NRC281, 

282 (1978). 

NRC regulations pertaining to environmental assessments (EAs) do not require 

consultation with other agencies. They only require a “list of agencies and persons 

consulted, and identification of sources used.” 10 C.F.R. § 51.30(a)(2). Sacramento 

Municipal Utility District (Rancho Seco Nuclear Generating Station), LBP-93-23, 38 NRC 

200, 244-45 (1993). 

The NRC cannot delegate to a local group the responsibility under NEPA to prepare an 

EA. The EA must be prepared by the NRC, not a local agency, although in preparing an 

EA the Staff may take into account site uses proposed by a local agency. Washington 

Public Power Supply System (WPPSS Nuclear Project No. 3), LBP-96-21, 44 NRC 134, 

136 (1996). 

It is the Staff, not the applicant, that has the legal duty to perform a NEPA analysis and to 

issue appropriate NEPA documents (such as an EA), and the burden of any settlement 

with an intervenor on NEPA issues falls on the Staff. Pa’ina Hawaii, LLC, CLI-06-18, 

64 NRC 1, 5 (2006) (citing Wetlands Action Network v. Army Corps of Eng’rs, 

222 F.3d 1105, 1114 (9th Cir. 2000); USEC Inc. (American Centrifuge Plant), CLI-06-10, 

63 NRC 451, 474 & n.144 (2006)). 

In contrast to safety questions, the environmental review at the operating license stage 

need not duplicate the construction permit review. 10 C.F.R. § 51.21. To raise an issue in 

an operating license hearing concerning environmental matters which were considered at 

the construction permit stage, there needs to be a showing either that the issue had not 

previously been adequately considered or that significant new information has developed 

after the construction permit review. Houston Lighting & Power Co. (South Texas Project, 

Units 1 & 2), LBP-79-10, 9 NRC 439, 465 (1979). 

Consideration by the NRC in its environmental review is not required for the parts of the 

water supply system which will be used only by a local government agency; however, 

cumulative impacts from the jointly utilized parts of the system will be considered. 
GENERAL MATTERS 64 JUNE 2011 

Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), LBP-82-43A, 15 NRC 

1423, 1473, 1475 (1982). 

Insofar as environmental matters are concerned, under NEPA there is no legal basis for 

refusing an operating license merely because some environmental uncertainties may 

exist. Where environmental effects are remote and speculative, agencies are not 

precluded from proceeding with a project even though all uncertainties are not removed. 

Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2 & 3), 

LBP-82-117A, 16 NRC 1964, 1992 (1982), citing State of Alaska v. Andrus, 580 F.2d 465, 

473 (D.C. Cir. 1978), vacated in part sub nom. Western Oil and Gas Ass’n v. Alaska, 439 

U.S. 922 (1982); NRDC v. Morton, 458 F.2d 827, 835, 837-838 (D.C. Cir. 1972). 

NEPA provides no guarantee that federally approved projects will have no adverse 

environmental impacts. Nor does NEPA require agencies to select the most 

environmentally advantageous or benign option available. Hydro Resources, Inc., 

CLI-06-29, 64 NRC 417, 429 (2006). 

Environmental uncertainties raised by intervenors in NRC proceedings do not result in a 

per se denial of the license, but rather are subject to a rule of reason. Arizona Public 

Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2, & 3), LBP-82-117A, 

16 NRC 1964, 1992 (1982). When intervenors failed to show a deficiency in the Staff’s 

Cultural Resources Management Plan, then their NEPA claims were without merit. Hydro 

Resources, Inc., LBP-99-9, 49 NRC 136, 144 (1999). 

Contentions alleging that global warming may affect water availability are not admissible 

where they do not challenge specific information in the application and when they are not 

accompanied by specific support for the issues raised. Luminant Generation Co., LLC

(Comanche Peak Nuclear Power Plant, Units 3 & 4), LBP-09-17, 70 NRC __ 

(Aug. 6, 2009) (slip op. at 59); South Texas Project Nuclear Operating Co. (South Texas 

Project, Units 3 & 4), LBP-09-25, 70 NRC __ (Sep. 29, 2009) (slip op. at 14). 

Contentions related to replacement power costs may be material to a combined license 

applicant’s SAMDA analysis, which is material to the NRC’s NEPA analysis. South Texas 

Project Nuclear Operating Co. (South Texas Project, Units 3 & 4), LBP-10-14, 72 NRC __, 

(July 2, 2010) (slip op. at 32). 

The Commission’s regulations categorically exclude from NEPA review all amendments 

for the use of radioactive materials for research and development. The purpose of an 

environmental report is to inform the Staff's preparation of an EA and, where appropriate, 

an EIS. Where the Staff is categorically excused from preparing an EA or EIS, a licensee 

need not submit an environmental report. Curators of the University of Missouri, CLI-95-8, 

41 NRC 386, 396 (1995). 

The fact that a particular license transfer may have antitrust implications does not remove 

it from the NEPA categorical exclusion. In any event, because the AEA does not require, 

and arguably, does not even allow, the Commission to conduct antitrust evaluations of 

license transfer application, any “failure” of the Commission to conduct such an evaluation 

cannot constitute a federal action warranting a NEPA review. Power Authority of the State 

of New York, et al. (James FitzPatrick Nuclear Power Plant; Indian Point Nuclear 

Generating Unit 3), CLI-00-22, 52 NRC 266, n.55 (2000), quoting Vermont Yankee 

Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), CLI-00-20, 52 NRC 151, 
JUNE 2011 GENERAL MATTERS 65 

167-68 (2000); Vermont Yankee Nuclear Power Corp., et al. (Vermont Yankee Nuclear 

Power Station), CLI-00-20, 52 NRC 151, 168 (2000). See also Kansas Gas & Electric Co.

(Wolf Creek Generating Station, Unit 1), CLI-99-19, 49 NRC 441 (1999); Final Rule, 

Antitrust Review Authority: Clarification, 65 Fed. Reg. 44,649 (July 19, 2000). 

The Commission may reject a petitioner’s request for an EIS on the ground that the scope 

of the proceeding does not include the new owners’ operation of the plant – but includes 

only the transfer of their operating licenses. Power Authority of the State of New York, 

et al. (James FitzPatrick Nuclear Power Plant; Indian Point Nuclear Generating Unit 3), 

CLI-00-22, 52 NRC 266, 309 (2000). 

Termination of an operating license application gives rise to a need, pursuant to 

10 C.F.R. § 51.21, for an EA to consider the impacts of the termination. Washington 

Public Power Supply System (WPPSS Nuclear Project No. 3), LBP-96-21, 44 NRC 134, 

136 (1996). 

Because a construction permit termination would appear to have impacts that encompass 

operating license termination impacts, one EA would appear to suffice for both actions. 

Washington Public Power Supply System (WPPSS Nuclear Project No. 3), LBP-96-21, 

44 NRC 134, 136 (1996). 

6.16.1 Environmental Impact Statements 

The activities for which environmental statements need be prepared and the 

procedures for preparation are covered generally in 10 C.F.R. Part 51. For a 

discussion of the scope of an NRC/NEPA review when the project addressed by that 

review is also covered by a broader overall programmatic EIS prepared by another 

federal agency, see USERDA (Clinch River Breeder Reactor Plant), CLI-76-13, 4 NRC 

67 (1976). 

Neither the AEA, NEPA, nor the Commission’s regulations require that there be a 

hearing on an EIS. Public hearings are held on an EIS only if the Commission finds 

such hearings are required in the public interest. 10 C.F.R. § 2.104. Commonwealth 

Edison Co. (Dresden Nuclear Power Station, Unit 1), CLI-81-25, 14 NRC 616, 625 

(1981), citing Vermont Yankee Nuclear Power Corp. v. NRC, 435 U.S. 519 (1978). 

Entergy Nuclear Generation Co. And Entergy Nuclear Operations, Inc. (Pilgrim Nuclear 

Power Station), LBP-06-24, 64 NRC 257, 298 (2006). 

It is premature to entertain a contention calling for issuance of an EIS where the Staff 

has not yet issued an EA determining that no EIS is required. Pacific Gas & Electric 

Company (Diablo Canyon Nuclear Plant, Units 1 & 2), LBP-93-9, 37 NRC 433 (1993). 

Under the plain terms of NEPA, the EA of a particular proposed federal action coming 

within the statutory reach may be confined to that action together with, inter alia, its 

unavoidable consequences. Northern States Power Co. (Prairie Island Nuclear 

Generating Plant, Units 1 & 2), ALAB-455, 7 NRC 41, 48 (1978). 

The environmental review mandated by NEPA is subject to a rule of reason and as 

such need not include all theoretically possible environmental effects arising out of an 

action, but may be limited to effects which are shown to have some likelihood of 

occurring. This conclusion draws direct support from the judicial interpretation of the 
GENERAL MATTERS 66 JUNE 2011 

statutory command imposing the obligation to make reasonable forecasts of the future. 

Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), 

ALAB-455, 7 NRC 41, 48, 49 (1978); Hydro Res., Inc., LBP-04-23, 60 NRC 441, 447 

(2004), review declined, CLI-04-39, 60 NRC 657 (2004). In other words, the Staff is 

excused from conducting a NEPA analysis of “remote and speculative” impacts or 

“worst case” scenarios. Nuclear Fuel Servs., Inc., LBP-05-8, 61 NRC 202, 208 (2005) 

(quoting Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), 

CLI-02-25, 56 NRC 340, 348-49 (2002)). See also Prairie Island, ALAB-455, 7 NRC at 

48, 49. 

Where a factor may be difficult or impossible to assess in quantitative terms, license 

applicants and Staff are expected to assess that factor in qualitative terms. Pacific Gas 

and Electric Company (Diablo Canyon Power Plant Independent Spent Fuel Storage 

Installation), CLI-08-26, 68 NRC 509, 521 (2008) (quoting 10 C.F.R. § 51.45(a)) 

(holding that a Staff member’s expert opinion on the low possibility of terrorist attack 

should not be discounted because it was based on a qualitative and not quantitative 

assessment). 

An agency can fulfill its NEPA responsibilities in the preparation of an EIS if it: 

 (1) reasonably defines the purpose of the proposed Federal action. The 

 agency should consider congressional intent and views as expressed by 

 statute as well as the needs and goals of the applicants seeking agency 

 approval; 

 (2) eliminates those alternatives that would not achieve the purpose as 

 defined by the agency; and 

 (3) discusses in reasonable detail the reasonable alternatives which would 

 achieve the purpose of the proposed action. 

Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 195-98 (D.C. Cir. 1991). 

Underlying scientific data and inferences drawn from NEPA through the exercise of 

expert scientific evaluation may be adopted by the NRC from the NEPA review done by 

another federal agency. The NRC must exercise independent judgment with respect to 

conclusions about environmental impacts based on interpretation of such basic facts. 

Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), LBP-82-43A, 

15 NRC 1423, 1467-1468 (1982), citing FTC v. Texaco, 555 F.2d 862, 881 

(D.C. Cir. 1977), cert. denied, 431 U.S. 974 (1977); Philadelphia Electric Co. (Limerick 

Generating Station, Units 1 & 2), ALAB-785, 20 NRC 848, 868 n.65 (1984). However, 

to the extent possible, the NRC will adopt the EIS prepared by DOE to evaluate the 

environmental impact related to the development and operation of a geologic 

repository for high-level radioactive waste. 10 C.F.R. § 51.109, 54 Fed. Reg. 27,864, 

27,870-71 (July 3, 1989). 

NEPA requires that a federal agency make a “good faith” effort to predict reasonably 

foreseeable environmental impacts and that the agency apply a “rule of reason” after 

taking a “hard look” at potential environmental impacts. But an agency need not have 

complete information on all issues before proceeding. Public Service Co. of Oklahoma

(Black Fox Station, Units 1 & 2), LBP-78-26, 8 NRC 102, 141 (1978). 
JUNE 2011 GENERAL MATTERS 67 

NEPA requires only that the NRC consider “reasonably foreseeable” indirect effects of 

a proposed licensing action. A Licensing Board’s reluctance to assume or speculate 

about far-reaching and large-scale changes required to find significant long-term 

adverse impacts was not unreasonable. Louisiana Energy Services, L.P. (National 

Enrichment Facility), CLI-06-15, 63 NRC 687, 698 (2006). 

In order to advance a claim under NEPA, the intervenor must allege with adequate 

support that the NRC Staff has failed to take a “hard look” at one or more significant 

environmental questions, that is, that the Staff has unduly ignored or minimized 

pertinent environmental effects of the proposed action. Pacific Gas and Electric 

Company (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), 

CLI-08-26, 68 NRC 509, 514 (2008); Duke Energy Corp. (McGuire Nuclear Station, 

Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-03-17, 58 NRC 419, 431 

(2003). 

The “rule of reason” means that, in an EIS, there is no need to consider impractical 

alternatives or alternatives that could only be implemented after significant changes in 

governmental policy or legislation. Also, it is sufficient to consider an appropriate range 

of alternatives, rather than every available alternative. Private Fuel Storage, L.L.C.

(Independent Spent Fuel Storage Installation), LBP-03-30, 58 NRC 454, 463 and 479 

(2003). 

An adequate FEIS for a nuclear facility necessarily includes the lesser impacts 

attendant to low-power testing of the facility and removes the need for a separate EIS 

focusing on questions such as the costs and benefits of low-power testing. Pacific Gas 

& Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1& 2), ALAB-728, 

17 NRC 777, 795 (1983), review denied, CLI-83-32, 18 NRC 1309 (1983). 

An EIS should include a statement on the alternatives to the proposed action, including 

the no-action alternative. Louisiana Energy Services (National Enrichment Facility), 

CLI-04-03, 59 NRC 10, 22 (2004). 

Section 102(2)(E) of NEPA requires agencies to “study, develop, and describe 

appropriate alternatives to the recommended courses of action in any proposal which 

involves unresolved conflicts concerning alternative uses of available resources.” But 

the NRC regulations explicitly excuse an applicant from this analysis at the early site 

permit stage of the proceeding. Rather, this analysis should be conducted at the 

construction permit or combined license application stage. Exelon Generation Co., Inc.

(Early Site Permit for Clinton ESP Site), LBP-06-28, 64 NRC 460, 486 (2006). 

There may, of course, be mistakes in an EIS, but it is the intervenor’s burden to show 

their materiality and significance. If the EIS “comes to grips with all important 

considerations,” nothing more need be done. Exelon Generation Co., LLC (Early Site 

Permit for Clinton ESP Site), CLI-05-29, 62 NRC 801, 811 (2005). 

When Staff is preparing an EIS, it may rely on an environmental report prepared by the 

applicant, but Staff is ultimately responsible for all information used in the EIS and so 

must independently evaluate any information it uses for this purpose. 

Exelon Generation Company (Early Site Permit for Clinton ESP Site), LBP-05-19, 

62 NRC 134, 155 (2005). 
GENERAL MATTERS 68 JUNE 2011 

6.16.1.1 Need to Prepare an EIS 

Federal agencies are required to prepare an EIS for every major federal action 

significantly affecting the quality of the human environment. NEPA 102(2)(C); 

42 U.S.C 4332(2)(C). An agency’s decision not to exercise its statutory authority 

does not constitute a major federal action. Cross-Sound Ferry Services. Inc. v. ICC, 

934 F.2d 327, 334 (D.C. Cir. 1991), citing Defenders of Wildlife v. Andrus, 

627 F.2d 1238, 1245-46 (D.C. Cir. 1980). See Long Island Lighting Co. (Shoreham 

Nuclear Power Station, Unit 1), CLI-91-2, 33 NRC 61, 70 (1991), reconsid. denied, 

CLI-91-8, 33 NRC 461 (1991); Pacific Gas and Electric Company (Diablo Canyon 

Power Plant Independent Spent Fuel Storage Installation), CLI-08-26, 68 NRC 509, 

514 (2008). 

The purpose of an applicant’s environmental report is to inform the Staff’s 

preparation of an EA and, where appropriate, an EIS. Where the Staff is 

categorically excused from preparing an EA or EIS, an applicant need not submit an 

environmental report. Curators of the University of Missouri, CLI-95-8, 41 NRC 386, 

396 (1995). 

An agency’s refusal to prepare an EIS is not by itself a final agency action which 

requires the preparation of an EIS. Public Citizen v. Office of the U.S. Trade 

Representative, 970 F.2d 916, 918-919 (D.C. Cir. 1992), citing Foundation on 

Economic Trends v. Lyng, 943 F.2d 79, 85 (D.C. Cir. 1991). An agency is not 

required to prepare an EIS where it is only contemplating a particular course of 

action, but has not actually taken any final action. Public Citizen, supra, 

970 F.2d at 920. 

License transfers fall within a categorical exclusion for which EISs are not required, 

and the fact that a particular license transfer may have implications does not remove 

it from the categorical exclusion. Vermont Yankee Nuclear Power Corp., et al.

(Vermont Yankee Nuclear Power Station), CLI-00-20, 52 NRC 151, 167-168 (2000). 

See also 10 C.F.R. § 51.22(c)(21). 

It is possible that for a petitioner to raise an admissible contention with respect to a 

Finding of No Significant Impact (FONSI), the petitioner need not show that there 

will be a significant environmental impact. Instead, the petitioner must allege facts 

which, if proven, show that the proposed federal action may significantly impact the 

environment. U.S. Army (Jefferson Proving Ground Site), LBP-06-27, 64 NRC 438, 

458 (2006). 

The granting of conditional approval of a power authority’s plan for barge shipments 

of irradiated fuel does not constitute a “major federal action” by an agency and, thus, 

NEPA does not require that agency to perform an EA or EIS. New Jersey v. Long 

Island Power Authority, 30 F.3d 403, 415 (3d Cir. 1994). 

Where a nonfederal party voluntarily informs a federal agency of its intended 

activities to ensure compliance with law and regulation, and to facilitate the agency’s 

monitoring of activities for safety purposes, the agency’s review of the plan does not 

constitute a “major federal action” requiring an EIS pursuant to NEPA. New Jersey 

v. Long Island Power Authority, 30 F.3d 403, 416 (3d Cir. 1994). 
JUNE 2011 GENERAL MATTERS 69 

An agency cannot skirt NEPA or other statutory commands by essentially exempting 

a licensee from regulatory compliance and then simply labeling its decision “mere 

oversight” rather than a major federal action. To do so is manifestly arbitrary and 

capricious. Citizens Awareness Network v. NRC, 59 F.3d 284, 293 (1st Cir. 1995). 

Although the determination as to whether to prepare an EIS falls initially upon the 

Staff, that determination may be made an issue in an adjudicatory proceeding. 

Consumers Power Co. (Palisades Nuclear Plant), LBP-79-20, 10 NRC 108, 120 

(1979). 

In the final analysis, the significance of the impact of the project – in large part an 

evidentiary matter – will determine whether a statement must be issued. 

Consumers Power Co. (Palisades Nuclear Plant), LBP-79-20, 10 NRC 108, 120 

(1979). 

In the case of licensing nuclear power plants, adverse impacts include the impacts 

of the nuclear fuel cycle. Public Service Co. of New Hampshire (Seabrook Station, 

Units 1 & 2), LBP-82-76, 16 NRC 1029, 1076 (1982), citing Vermont Yankee 

Nuclear Power Corp. v. NRDC, 435 U.S. 519, 539 (1978). 

In determining whether a license amendment is a major action significantly affecting 

the quality of the human environment, it is relevant to determine if prior activities “in 

actuality have given rise to environmental harm such as Petitioners fear.” 

International Uranium (USA) Corp. (White Mesa Uranium Mill), LBP-02-19, 

56 NRC 113, 117 (2002). 

The test of whether benefits of a proposed action outweigh its costs is distinct from 

the primary question of whether an EIS is needed because the action is a major 

federal action significantly affecting the environment. Virginia Electric Power Co.

(Surry Nuclear Power Station, Units 1 & 2), CLI-80-4, 11 NRC 405 (1980). 

The Commission has consistently taken the position that individual fuel exports are 

not “major Federal actions.” Westinghouse Electric Corp. (Exports to Philippines), 

CLI-80-15, 11 NRC 672 (1980). 

The fact that risks of other actions or no action are greater than those of the 

proposed action does not show that risks of the proposed action are not so 

significant as to require an EIS. Where conflict in the scientific community makes 

determination of significance of environmental impact problematical, the preferable 

course is to prepare an EIS. Virginia Electric Power Co. (Surry Nuclear Power 

Station, Units 1 & 2), CLI-80-4, 11 NRC 405 (1980). 

For an analysis of when an EA rather than an EIS is appropriate, see

Commonwealth Edison Co. (Zion Station, Units 1 & 2), LBP-80-7, 11 NRC 245, 249-

50 (1980). 

The NRC Staff is not required to prepare a complete EIS if, after performing an 

initial EA, it determines that the proposed action will have no significant 

environmental impact. Virginia Electric & Power Co. (North Anna Power Station, 

Units 1 & 2), ALAB-790, 20 NRC 1450, 1452 n.5 (1984); Curators of University of 

Missouri, CLI-95-1, 41 NRC 71, 124 (1995). 
GENERAL MATTERS 70 JUNE 2011 

In a situation where an EIS is neither required nor categorically excluded, a 

contention seeking an EIS, filed prior to the Staff’s issuance of an EA, is premature. 

After Staff issuance of an EA, a late-filed contention may be submitted (assuming 

the EA does not call for an EIS). Pacific Gas & Electric Co. (Diablo Canyon Nuclear 

Plant, Units 1 & 2), LBP-93-1, 37 NRC 5, 36 (1993). 

To find that the agency’s hearing notice that determined that a categorical exclusion 

applied to an application prevented challenges authorized by 10 C.F.R. § 51.22 to 

the use of such categorical exclusions would be tantamount to ruling that the 

agency need not comply with its own regulations. Pa’ina Hawaii, LLC, LBP-06-4, 

63 NRC 99, 109 n.38 (2006) (citing, e.g., Fort Stewart Schools v. Fed. Labor 

Relations Auth., 495 U.S. 641, 654 (1990)). 

A Board admitted a contention based on the argument that NEPA analysis requires 

an explanation of the applicability of a categorical exclusion where a petitioner has 

alleged special circumstances necessitating an environmental review; the Staff and 

applicant had not negated the contention because they did not explain the 

applicability of that categorical exclusion in the specified circumstances, or provide a 

basis to conclude that the alleged circumstances were actually considered as part of 

the adoption of the categorical exclusion. Pa’ina Hawaii, LLC, LBP-06-4, 63 NRC 

99, 108-112 & 108 n.36 (2006) (citing Alaska Center for the Environment v. U.S. 

Forest Service, 189 F.3d 851, 859 (9th Cir. 1999); Jones v. Gordon, 792 F.2d 821, 

828 (9th Cir. 1986); Steamboaters v. Fed. Energy Reg. Comm’n, 759 F.2d 1382 (9th 

Cir. 1985); Wilderness Watch & Public Employees for Envi. Responsibility v. 

Mainella, 375 F.3d 1085, 1096 (11th Cir. 2004)). 

An operating license amendment to recapture the construction period and allow for 

operation for 40 full years is not an action which requires the preparation of an EIS 

or an environmental report. A construction period recapture amendment only 

requires the Staff to prepare an EA. Vermont Yankee Nuclear Power Corp.

(Vermont Yankee Nuclear Power Station), LBP-90-6, 31 NRC 85, 97 (1990). 

A separate EIS is not required for an SNM license. When an EIS has been done for 

an operating license application, including the delivery of fuel, there is no need for 

each component to be analyzed separately on the assumption that a plant may 

never be licensed to operate. Cleveland Electric Illuminating Co. (Perry Nuclear 

Power Plant, Units 1 & 2), LBP-83-38, 18 NRC 61, 65 (1983). 

The NRC’s obligation under NEPA does not end following initial approval of an 

action. Even beyond that stage, NEPA requires that the agency take a “hard look” 

at the environmental effects of the proposal. Hydro Res., Inc., LBP-04-23, 

60 NRC 441, 447-48 (2004), review declined, CLI-04-39, 60 NRC 657 (2004) (citing

Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 374 (1989)). Similar to the 

determination to prepare an EIS in the first place, agency decisions regarding 

whether to supplement an FEIS are also governed by the rule of reason. Hydro 

Res., Inc., LBP-04-23, 60 NRC at 448 (citing Marsh, 490 U.S. at 373-74). 

Not every change requires a supplemental EIS; only those changes that cause 

effects that are significantly different from those already studied. The new 

circumstance must reveal a seriously different picture of the environmental impact of 
JUNE 2011 GENERAL MATTERS 71 

the proposed project. Hydro Resources, Inc., CLI-01-4, 53 NRC 31, 52 (2001); 

Hydro Resources, Inc., CLI-04-39, 60 NRC 657, 659 (2004); Hydro Res., Inc., 

LBP-04-23, 60 NRC 441, 448 (2004), review declined, CLI-04-39, 60 NRC 657 

(2004). 

A supplemental EIS is needed where new information “raises new concerns of 

sufficient gravity such that another, formal in-depth look at the environmental 

consequences of the proposed action is necessary.” Private Fuel Storage, L.L.C.

(Independent Spent Fuel Storage Installation), CLI-06-3, 63 NRC 19, 28 (2006) 

(quoting Wisconsin v. Weinberger, 745 F.2d 412, 418 (7th Cir. 1984); Marsh v. 

Oregon Natural Res. Council, 490 U.S. 360, 374 (1989). 

The question whether some new information or circumstance is significant (and 

would consequently require supplementation of an FEIS) ordinarily raises a factual 

dispute. Hydro Res., Inc., LBP-04-23, 60 NRC 441, 448 (2004), review declined, 

CLI-04-39, 60 NRC 657 (2004) (citing Marsh v. Oregon Natural Res. Council, 

490 U.S. 360, 376-77 (1989); Friends of the Bow v. Thompson, 124 F.3d 1210, 

1218 (10th Cir. 1997)). 

An SEIS or an EIA does not have to be prepared prior to the granting of 

authorization for issuance of a low-power license. Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), LBP-83-57, 18 NRC 445, 634 (1983). 

The issuance of a possession-only license need not be preceded by the submission 

of any particular environmental information or accompanied by any NEPA review 

related to decommissioning. Long Island Lighting Co. (Shoreham Nuclear Power 

Station, Unit 1), CLI-91-1, 33 NRC 1, 6-7 (1991). 

When the environmental effects of full-term, full-power operation have already 

been evaluated in an EIS, a licensing action for limited operation under a 

10 C.F.R. § 50.57(c) license that would result in lesser impacts need not be 

accompanied by an additional impact statement or an impact appraisal. Pacific Gas 

& Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), LBP-81-5, 13 NRC 

226 (1981), and ALAB-728, 17 NRC 777, 795 (1983), review denied, CLI-83-32, 18 

NRC 1309 (1983). The Commission authorized the issuance of a low-power 

operating license for Limerick Unit 2, even though, pursuant to a federal court order, 

Limerick Ecology Action v. NRC, 869 F.2d 719 (3rd Cir. 1989), there was an 

ongoing Licensing Board proceeding to consider certain severe accident mitigation 

design alternatives. Since the existing EIS was valid except for the failure to 

consider the design alternatives, and low-power operation presents a much lower 

risk of a severe accident than does full-power operation, the Commission found that 

the existing EIS was sufficient to support the issuance of a low-power license. 

Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), CLI-89-10, 

30 NRC 1, 5-6 (1989), reconsid. denied and stay denied, CLI-89-15, 30 NRC 96, 

101-102 (1989). 

It is well-established NEPA law that separate environmental statements are not 

required for intermediate, implementing steps such as the issuance of a low-power 

license where an EIS has been prepared for the entire proposed action and there 

have been no significant changed circumstances. Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), CLI-84-9, 19 NRC 1323, 1326 (1984), 
GENERAL MATTERS 72 JUNE 2011 

on certification from ALAB-769, 19 NRC 995 (1984). See Environmental Defense 

Fund, Inc. v. Andrus, 619 F.2d 1368, 1377 (1980). 

The principle stated in the Shoreham and Diablo Canyon cases, supra, is applicable 

even where an applicant may begin low-power operation and it is uncertain whether 

the applicant will ever receive a full-power license. In Shoreham, the fact that recent 

court decisions in effect supported the refusal by the state and local governments to 

participate in the development of emergency plans was determined not to be a 

significant change of circumstances which would require the preparation of a 

supplemental EIS to assess the costs and benefits of low-power operation. Long 

Island Lighting Co. (Shoreham Nuclear Power Station), CLI-85-12, 21 NRC 1587, 

1589 (1985). See Public Service Co. of New Hampshire (Seabrook Station, 

Units 1 & 2), ALAB-875, 26 NRC 251, 258-59 (1987); Public Service Co. of New 

Hampshire (Seabrook Station, Units 1 & 2), CLI-89-8, 29 NRC 399, 418-19 (1989). 

The NRC Staff is not required to prepare an EIS to evaluate the “resumed 

operation” of a facility or other alternatives to a licensee’s decision not to operate its 

facility. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), 

CLI-90-8, 32 NRC 201, 207-208 (1990), reconsid. denied, CLI-91-2, 33 NRC 61 

(1991), reconsid. denied, CLI-91-8, 33 NRC 461, 470 (1991); Sacramento Municipal 

Utility District (Rancho Seco Nuclear Generating Station), LBP-91-17, 33 NRC 379, 

390 (1991); Sacramento Municipal Utility District (Rancho Seco Nuclear Generating 

Station), LBP-91-30, 34 NRC 23, 26, 27 (1991); Sacramento Municipal Utility District

(Rancho Seco Nuclear Generating Station), LBP-92-23, 36 NRC 120, 135 (1992). 

See Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-9135, 

34 NRC 163, 169 (1991). 

A contention attempting to raise an issue of the lack of long-term spent fuel storage 

is barred as a matter of law from operating license and operating license 

amendment proceedings. 10 C.F.R. §§ 51.23(1), 51.53(a). Pacific Gas & Electric 

Co. (Diablo Canyon Nuclear Plant, Units 1 & 2), LBP-93-1, 37 NRC 5, 29-30 (1993). 

Environmental review of the storage of spent fuel in reactor facility storage pools for 

at least 30 years beyond the expiration of reactor operating licenses is not required 

based upon the Commission’s generic determination that such storage will not result 

in significant environmental impacts. Dairyland Power Coop. (La Crosse Boiling 

Water Reactor), LBP-88-15, 27 NRC 576, 580 (1988), citing 10 C.F.R. § 51.23. 

An EIS need not be prepared with respect to the expansion of the capacity of a 

spent fuel pool if the EIA prepared for the project had an adequate basis for 

concluding that the expansion of a spent fuel pool would not cause any significant 

environmental impact. Consumers Power Co. (Big Rock Point Plant), LBP-82-78, 

16 NRC 1107 (1982). 

When a licensee seeks to withdraw an application to expand its existing low-level 

waste burial site, the granting of the request to withdraw does not amount to a major 

federal action requiring a NEPA review. This is true even though, absent an 

expansion, the site will not have the capacity to accept additional low-level waste. 

Nuclear Engineering Co., Inc. (Sheffield, Illinois, Low-Level Radioactive Waste 

Disposal Site), ALAB-606, 12 NRC 156, 161-163 (1980). 
JUNE 2011 GENERAL MATTERS 73 

It must at least be determined that there is significant new information before the 

need for a supplemental environmental statement can arise. Arizona Public Service 

Co. (Palo Verde Nuclear Generating Station, Units 2 & 3), LBP-83-36, 18 NRC 45, 

49 (1983), citing Warm Springs Task Force v. Gribble, 621 F.2d 1017, 1023-36 (9th 

Cir. 1981); Hydro Resources, Inc., CLI-06-29, 64 NRC 417, 419 (2006). 

A supplemental EIS may be necessary if new information raises a previously 

unknown environmental concern, but not necessarily when it amounts to mere 

additional evidence supporting one side or the other of a disputed environmental 

effect. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), 

CLI-06-3, 63 NRC 19, 28 (2006). 

A supplemental environmental statement need not necessarily be prepared and 

circulated even if there is new information. Arizona Public Service Co. (Palo Verde 

Nuclear Generating Station, Units 2 & 3), LBP-83-36, 18 NRC 45, 49-50 (1983), 

citing California v. Watt, 683 F.2d 1253, 1268 (9th Cir. 1982). See

40 C.F.R. § 1502.9(c); Hydro Resources, Inc., CLI-99-22, 50 NRC 3, 14 (1999). 

The proponent of the need for an evidentiary hearing bears the burden of 

establishing that need, but the Staff bears the ultimate burden to demonstrate its 

compliance with NEPA in its determination that an EIS is not necessary on a 

proposed license amendment. Carolina Power & Light Co. (Shearon Harris Nuclear 

Power Plant), LBP-01-9, 53 NRC 239, 249 (2001). 

Once an intervenor crosses the admissibility threshold relative to its environmental 

contention, the ultimate burden in a Subpart K proceeding then rests with the 

proponent of the NEPA document – the Staff (and the applicant to the degree it 

becomes a proponent of the Staff’s EIS-related action) – to establish the validity of 

that determination on the question whether there is an EIS preparation trigger. 

Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), LBP-01-9, 

53 NRC 239, 249 (2001). 

However, it is not unreasonable to ask an intervenor to come forward with support 

for a request to supplement an FEIS. This burden is akin to a petitioner’s initial 

obligation to come forward with a sufficient basis for a contention and imposition of 

such burden does not improperly shift the “burden of proof” on factual evidence to 

the intervenor. Hydro Resources, Inc., CLI-04-39, 60 NRC 657, 659-60 (2004). 

The standard for issuing a supplemental EIS is set forth in 10 C.F.R. § 51.92: There 

must be either substantial changes in the proposed action that are relevant to 

environmental concerns, or significant new circumstances or information relevant to 

environmental concerns and bearing on the proposed action or its impacts. Yankee 

Atomic Electric Co. (Yankee Nuclear Power Station), CLI-96-7, 43 NRC 235, 269 

(1996); Hydro Resources, Inc., CLI-99-22, 50 NRC 3, 14 (1999). The fact that a 

supplement to an FEIS would have been distributed to additional members of the 

public if such a supplement had in fact been prepared, is not a persuasive argument 

that the supplement should have been prepared in the first instance. Decisions on 

whether to supplement an FEIS are made pursuant to 10 C.F.R. 51.92. HRI, 

CLI-04-39, 60 NRC at 661. 
GENERAL MATTERS 74 JUNE 2011 

For NEPA purposes, the “major federal action” triggering the EIS is issuing the 

license, not adjudicating the license. Until a license issues, the Commission must 

entertain motions to reopen the adjudicatory record, albeit under the strict standards 

of the Commission’s reopening regulations. Private Fuel Storage, L.L.C.

(Independent Spent Fuel Storage Installation), CLI-06-3, 63 NRC 19, 24 (2006) 

(citing 10 C.F.R. § 2.326; Private Fuel Storage, L.L.C. (Independent Spent Fuel 

Storage Installation), CLI-05-12, 61 NRC 345, 350 & n.19 (2005)). 

In LBP-04-23, the Presiding Officer stated in dicta that the supplementation 

requirement of NEPA and the agency’s environmental regulations is not abrogated 

by the Commission’s practice rule authorizing the Staff to issue a license before the 

adjudication is commenced or completed. Hydro Res., Inc., LBP-04-23, 60 NRC 

441, 450 n.45 (2004), review declined, CLI-04-39, 60 NRC 657 (2004) (referencing 

10 C.F.R. § 2.1205(m) [now 10 C.F.R. § 2.103(a)]). 

The Supreme Court has found that a cumulative EIS must be prepared only when 

“several proposals for actions that will have cumulative or synergistic environmental 

impact upon a region are pending concurrently before an agency.” Duke Energy 

Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), 

CLI-02-14, 55 NRC 278, 294 (2002), citing Kleppe v. Sierra Club, 427 U.S. 390 

(1976). The Court further stated agencies need not consider “possible 

environmental impacts of less imminent actions when preparing the impact 

statement on proposed actions.” The Commission reads post-Kleppe rulings to 

indicate that to bring NEPA into play a possible future action must at least constitute 

a “proposal” pending before the agency (i.e., ripeness), and must be in some way 

interrelated with the action that the agency is actively considering. Duke Energy 

Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), 

CLI-02-14, 55 NRC 278, 295 (2002). 

6.16.1.2 Scope of EIS 

The scope of the environmental statement or appraisal must be at least as broad 

as the scope of the action being taken. Duke Power Co. (Oconee/McGuire), 

LBP-80-28, 12 NRC 459, 473 (1980). 

An agency may authorize an individual, sufficiently distinct portion of an agency plan 

without awaiting the completion of a comprehensive EIS on the plan so long as the 

environmental treatment under NEPA of the individual portion is adequate and 

approval of the individual portion does not commit the agency to approval of other 

portions of the plan. Kerr-McGee Corp. (West Chicago Rare Earths Facility), 

CLI-82-2, 15 NRC 232, 265 (1982), aff’d sub nom. City of West Chicago v. NRC, 

701 F.2d 632 (7th Cir. 1983); Peshlakai v. Duncan, 476 F.Supp. 1247, 1260 (D.D.C. 

1979); Conservation Law Foundation v. GSA, 427 F.Supp. 1369, 1374 (D.R.I. 

1977). 

In Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 

435 U.S. 519, 551 (1978), the U.S. Supreme Court embraced the doctrine that EISs 

need not discuss the environmental effects of alternatives which are “deemed only 

remote and speculative possibilities.” The same has been held with respect to 

remote and speculative environmental impacts of the proposed project itself. Public 

Service Electric & Gas Co. (Salem Nuclear Generating Station, Unit 1), ALAB-650, 
JUNE 2011 GENERAL MATTERS 75 

14 NRC 43 (1981); Houston Lighting & Power Co. (Allens Creek Nuclear Generating 

Station, Unit 1), ALAB-629, 13 NRC 75 (1981). Moot or farfetched alternatives need 

not be considered under NEPA. Arizona Public Service Co. (Palo Verde Nuclear 

Generating Station, Units 1, 2, & 3), LBP-82-117A, 16 NRC 1964, 1992 (1982), 

citing Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 

435 U.S. 519 (1978); Natural Resources Defense Council v. Morton, 458 F.2d 827, 

837-838 (D.C. Cir. 1972); Life of the Land v. Brinegar, 485 F.2d 460 (9th Cir. 1973), 

cert. denied, 416 U.S. 961 (1974). 

NEPA does not require certainty or precision, but, rather, an estimate of anticipated 

(not unduly speculative) impacts. An assessment of the estimated impacts at one or 

more representative or reference sites can be sufficient. In this type of analysis, the 

impacts for a range of potential facilities or locations having one or more common 

site or design features can be bounded. Louisiana Energy Services, L.P. (National 

Enrichment Facility), CLI-05-20, 62 NRC 523, 536 (2005). 

The scope of a NEPA environmental review in connection with a facility license 

amendment is limited to a consideration of the extent to which the action under the 

amendment will lead to environmental impacts beyond those previously evaluated. 

Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), 

LBP-81-14, 13 NRC at 677, 684-685 (1981), citing Consumers Power Co. (Big Rock 

Point Nuclear Plant), ALAB-636, 13 NRC at 312 (1981). 

An environmental review of the decommissioning of a nuclear facility supplements 

the operating license environmental review and is only required to examine any new 

information or significant environmental change associated with the 

decommissioning of the facility or the storage of spent fuel. 10 C.F.R. § 51.53(b). 

Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), 

LBP-92-23, 36 NRC 120, 134 (1992). 

When major federal actions are involved, if related activities taken abroad have a 

significant effect within the U.S., those effects are within NEPA’s ambit. However, 

remote and speculative possibilities need not be considered under NEPA. 

Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 & 3), 

ALAB-562, 10 NRC 437, 446 (1979). 

The Atomic Safety and Licensing Board found that an intervenor’s assertions 

regarding sabotage risk did not provide a litigable basis for a NEPA contention. 

Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), LBP-00-19, 

52 NRC 85, 97 (2000). 

Generally, NEPA does not require a terrorism review, and an EIS is not the 

appropriate format in which to address the challenges of terrorism. Amergen 

Energy Company, LLC (Oyster Creek Nuclear Generating Station), CLI-07-8, 

65 NRC 124, 129 (2007) aff’d sub nom., New Jersey Department of Environmental 

Protection v. NRC, 561 F.3d 132 (3rd Cir. 2009); see also System Energy 

Resources, Inc. (Early Site Permit for Grand Gulf ESP Site), CLI-07-10, 65 NRC 

144, 145-47 (2007); Progress Energy Carolinas, Inc. (Shearon Harris Nuclear 

Power Plant, Units 2 & 3), LBP-08-21, 68 NRC 554, 566-568 (2008). But, the Ninth 

Circuit has concluded that NEPA requires consideration of the environmental 

impacts of a terrorist attack. San Luis Obispo Mothers for Peace v. NRC, 449 F.3d 
GENERAL MATTERS 76 JUNE 2011 

1016, 1028-35 (2006); reversing Pacific Gas & Electric Co. (Diablo Canyon Power 

Plant Independent Spent Fuel Storage Installation), CLI-03-1, 57 NRC 1, 6-7 (2003); 

Public Citizen v. NRC, 573 F.3d 916 (9th Cir. 2009). In New Jersey Department of 

Environmental Protection v. NRC, the Third Circuit rejected the Ninth Circuit’s 

holding. The Third Circuit, consistent with the Commission’s views, held that 

NEPA’s proximate cause principles preclude terrorism consideration. New Jersey 

Department of Environmental Protection v. NRC, 561 F.3d 132 (3rd Cir. 2009) 

In other cases, the Commission has consistently held that NEPA does not impose a 

legal duty to consider intentional malevolent acts. Duke Energy Corp. (McGuire 

Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-02-26, 

56 NRC 358 (2002), rev’g certified questions, LBP-02-4, 55 NRC 49 (2002). Nor is 

the NEPA process an appropriate forum for addressing the challenges of terrorism 

for four interlocking reasons: (1) the likelihood and nature of a postulated terrorist 

attack are speculative and are not proximately caused by an NRC licensing 

decision; (2) the risk of terrorist attack cannot be meaningfully determined by NRC 

Staff; (3) NEPA does not require a “worst case” analysis and such an analysis would 

not enhance an agency’s decisionmaking process as the appropriate test is what is 

“reasonably foreseeable” from the consequence of the licensed action and not a 

terrorist attack; and (4) a terrorism review is incompatible with the public character 

of the NEPA process. Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; 

Catawba Nuclear Station, Units 1 & 2), CLI-02-26, 56 NRC 358, 365 (2002), 

reviewing certified questions, LBP-02-4, 55 NRC 49 (2002); see also Nuclear 

Management Co., LLC (Palisades Nuclear Plant), CLI-07-9, 65 NRC 139 (2007) 

(NEPA does not require the NRC to consider the environmental consequences of 

hypothetical terrorist attacks on NRC-licensed facilities); Private Fuel Storage, 

L.L.C. (Independent Spent Fuel Storage Installation), CLI-02-25, 56 NRC 340, 353 

(2002), aff’g LBP-01-37, 54 NRC 476 (2001). As a practical matter, Staff resources 

are better utilized to address prevention of a terrorist attack at licensed facilities than 

assessing the impact of an attack during the renewal period. Duke Energy Corp.

(McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI02-26, 56 NRC 358, 365 (2002), rev’g certified questions, LBP-02-4, 55 NRC 49 

(2002). 

Moreover, excluding safeguards data pertaining to anti-terrorism from the NEPA 

process is “not simply a policy choice” but is mandated by Section 147 of the AEA. 

Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), 

CLI-02-25, 56 NRC 340, 355 (2002), aff’g LBP-01-37, 54 NRC 476 (2001). In this 

regard, confidentiality in this area can be equated with the NEPA definition of an 

“essential consideration of national policy” and protects against “risks to health and 

safety” and avoids “undesirable and unintended consequences.” Private Fuel 

Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-02-25, 

56 NRC 340, 355 (2002), aff’g LBP-01-37, 54 NRC 476 (2001). Finally, it should be 

noted that the Commission has not stated that an environmental report should never 

consider anti-terrorism issues as they have been addressed in considerable detail in 

generic studies – only that they should not be required as part of the NEPA process. 

Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-02-

25, 56 NRC 340, 354 (2002), aff’g LBP-01-37, 54 NRC 476 (2001). 

In a case where petitioners challenged an export license to export weapons-grade 

plutonium oxide to France and argued that the applicant DOE’s associated EIS 
JUNE 2011 GENERAL MATTERS 77 

failed to address post-September 11, 2001 terrorism threats, the Commission stated 

that NRC case law does not require a NEPA-based review of terrorism; however, 

DOE has discretion to review terrorism in the NEPA context. No hearing was 

warranted for additional NEPA review on terrorism, as DOE had taken the requisite 

“hard look” in its EIS and “NEPA does not override [the Commission’s] concern for 

making sure that sensitive security-related information ends up in as few hands as 

practicable.” U.S. Dep’t of Energy, CLI-04-17, 59 NRC 357, 371-72 (2004) (quoting

Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-02-

25, 56 NRC 340, 347 (2002)). 

NEPA does not require the NRC to investigate or enforce tribal leadership’s 

promises to spend lease payments collected from an applicant prudently, legally, or 

in a manner otherwise to the satisfaction of the entire tribe, even where such 

promises are cited in the FEIS. There would be no end to the NRC’s environmental 

review if the agency had to follow and scrutinize ongoing contract payments and the 

actions of tribal leaders. Private Fuel Storage, L.L.C. (Independent Spent Fuel 

Storage Installation), CLI-04-9, 59 NRC 120, 125 (2004). 

Environmental issues identified as “Category 1,” or “generic,” issues in 

10 C.F.R. Part 51, Subpart A, Appendix B, are not within the scope of a license 

renewal proceeding. On these issues, the Commission found that it could draw 

generic conclusions that are applicable to nuclear power plants generally. The 

Commission was not able to make generic environmental findings on issues 

identified as “Category 2,” or “plant specific,” issues in 10 C.F.R. Part 51, Subpart A, 

Appendix B, and thus these issues are within the scope of license renewal, and 

applicants must provide a plant-specific review of them. PPL Susquehanna, LLC,

(Susquehanna Steam Electric Station, Units 1 & 2), LBP-07-4, 65 NRC 281, 309-12 

(2007). Absent a waiver pursuant to 10 C.F.R. § 2.335, Category 1 issues cannot 

be addressed in a license renewal proceeding. Entergy Nuclear Operations, Inc.

(Indian Point Nuclear Generating Units 2 & 3), LBP-08-13, 68 NRC 43, 67 (2008). 

An applicant is required to address new and significant information for either 

Category 1 or Category 2 issues in its environmental report for a license renewal 

application. Id. at 189. 

Spent fuel pool fires are Category 1 environmental issues and, therefore, are 

addressed generically in the GEIS for license renewals. A petition for rulemaking 

that addresses issues related to spent fuel pool fires would be a more appropriate 

venue to seek relief for resolving generic concerns about spent fuel fires than a sitespecific contention in an adjudication. Entergy Nuclear Operations, Inc. (Indian 

Point Nuclear Generating Units 2 and 3), LBP-08-13, 68 NRC 43, 186 (2008). 

There is no need for a review of emergency planning issues in the context of license 

renewal. Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating 

Units 2 & 3), LBP-08-13, 68 NRC 43, 149 (2008). 

6.16.2 Role of EIS 

A NEPA analysis of the Government’s proposed licensing of private activities is 

necessarily more narrow than a NEPA analysis of proposed activities which the 

Government will conduct itself. The former analysis should consider issues which 

could preclude issuance of the license or which could be affected by license conditions. 
GENERAL MATTERS 78 JUNE 2011 

Kleppe v. Sierra Club, 427 U.S. 390 (1976). It should focus on the proposal submitted 

by the private party rather than on broader concepts. It must consider other 

alternatives, however, even if the agency itself is not empowered to order that those 

alternatives be undertaken. Were there no distinction in NEPA standards between 

those for approval of private actions and those for federal actions, NEPA would, in 

effect, become directly applicable to private parties. Public Service Co. of New 

Hampshire (Seabrook Station, Units 1 & 2), CLI-77-8, 5 NRC 503 (1977). 

The impact statement does not simply “accompany” an agency recommendation for 

action in the sense of having some independent significance in isolation from the 

deliberative process. Rather, the impact statement is an integral part of the 

Commission’s decision. It forms as much a vital part of the NRC’s decisional record as 

anything else, such that for reactor licensing, for example, the agency’s decision would 

be fundamentally flawed without it. Public Service Co. of Oklahoma (Black Fox 

Station, Units 1 & 2), CLI-80-31, 12 NRC 264, 275 (1980). The principal goals of an 

EIS are twofold: to compel agencies to take a hard look at the environmental 

consequences of a proposed project, and to permit the public a role in the agency’s 

decisionmaking process. Louisiana Energy Services (Claiborne Enrichment Center), 

CLI-98-3, 47 NRC 77, 87 (1998). 

Where an applicant has submitted a specific proposal, the statutory language of 

NEPA’s Section 102(2)(C) only requires that an EIS be prepared in conjunction with 

that specific proposal, providing the Staff with a “specific action of the known 

dimensions” to evaluate. A single approval of a plan does not commit the agency to 

subsequent approvals; should contemplated actions later reach the stage of actual 

proposals, the environmental effects of the existing project can be considered when 

preparing the comprehensive statement on the cumulative impact of the proposals. 

Offshore Power Systems (Floating Nuclear Power Plants), LBP-79-15, 9 NRC 653, 

658-660 (1979). 

6.16.3 Circumstances Requiring Redrafting of Final Environmental Impact 

Statement 

In certain instances, a final environmental impact statement (FEIS) may be so 

defective as to require redrafting, recirculation for comment and reissuance in final 

form. Possible defects which could render an FEIS inadequate are numerous and are 

set out in a long series of NEPA cases in the federal courts. See, e.g., Brooks v. 

Volpe, 350 F.Supp. 269 (W.D. Wash. 1972) (FEIS inadequate when it suffers from a 

serious lack of detail and relies on conclusions and assumptions without reference to 

supporting objective data); Essex City Preservation Ass’n v. Campbell, 536 F.2d 956, 

961 (1st Cir. 1976) (new FEIS required when there is significant new information or a 

significant change in circumstances upon which original FEIS was based); NRDC v. 

Morton, 458 F.2d 827 (D.C. Cir. 1972) (existence of unexamined but viable alternative 

could render FEIS inadequate). A new FEIS may be necessary when the current 

situation departs markedly from the positions espoused or information reflected in the 

FEIS. Allied-General Nuclear Services (Barnwell Nuclear Fuel Plant Separation 

Facility), ALAB-296, 2 NRC 671 (1975); Kerr-McGee Chemical Corp. (West Chicago 

Rare Earths Facility), LBP-85-3, 21 NRC 244, 256 (1985). 

In an adjudicatory hearing, to the extent that any environmental findings by the 

Presiding Officer (or the Commission) differ from those in the FEIS, the FEIS is 
JUNE 2011 GENERAL MATTERS 79 

deemed modified by the decision. Hydro Resources, Inc., CLI-01-4, 53 NRC 31, 53 

(2001). 

Even though an FEIS may be inadequate in certain respects, ultimate NEPA 

judgments with respect to any facility are to be made on the basis of the entire record 

before the adjudicatory tribunal. Philadelphia Electric Co. (Limerick Generating 

Station, Units 1 & 2), ALAB-262, 1 NRC 163 (1975). Previous regulations explicitly 

recognized that evidence presented at a hearing may cause a Licensing Board to 

arrive at conclusions different from those in an FEIS, in which event the FEIS is simply 

deemed amended pro tanto. Allied-General Nuclear Services (Barnwell Nuclear Fuel 

Plant Separation Facility), ALAB-296, 2 NRC 671 (1975); Louisiana Power & Light Co.

(Waterford Steam Electric Station, Unit 3), LBP-82-100, 16 NRC 1550, 1571 n.20 

(1982). Since findings and conclusions of the licensing tribunal are deemed to amend 

the FEIS where different there from, amendment and recirculation of the FEIS is not 

always necessary, particularly where the hearing will provide the public ventilation that 

recirculation of an amended FEIS would otherwise provide. Philadelphia Electric Co.

(Limerick Generating Station, Units 1 & 2), ALAB-262, 1 NRC 163 (1975). Defects in 

an FEIS can be cured by the receipt of additional evidence subsequent to issuance of 

the FEIS. Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 2 

& 3), LBP-83-36, 18 NRC 45, 47 (1983). See Ecology Action v. AEC, 492 F.2d 998, 

1000-02 (2d Cir. 1974); Florida Power & Light Co. (Turkey Point Nuclear Generating 

Station, Units 3 & 4), ALAB-660, 14 NRC 987, 1013-14 (1981); Philadelphia Electric 

Co. (Limerick Generating Station, Units 1 & 2), ALAB-262, 1 NRC 163, 195-97 (1975). 

Such modification of the FEIS by Staff testimony or the Licensing Board’s decision 

does not normally require recirculation of the FEIS. Niagara Mohawk Power Corp.

(Nine Mile Point Nuclear Station, Unit 2), ALAB-264, 1 NRC 347, 372 (1975), unless 

the modifications are truly substantial. Allied-General Nuclear Services (Barnwell 

Nuclear Fuel Plant Separation Facility), ALAB-296, 2 NRC 671 (1975); Philadelphia 

Electric Co. (Limerick Generating Station, Units 1 & 2), LBP-84-31, 20 NRC 446, 553 

(1984); Kerr-McGee Chemical Corp. (West Chicago Rare Earths Facility), LBP-85-3, 

21 NRC 244, 252, 256 (1985). 

Two Courts of Appeals have approved the Commission’s rule that the FEIS is deemed 

modified by subsequent adjudicatory tribunal decisions. Citizens for Safe Power v. 

NRC, 524 F.2d 1291, 1294 n.5 (D.C. Cir. 1975); Ecology Action v. AEC, 492 F.2d 998, 

1001-02 (2nd Cir. 1974); Public Service Co. of New Hampshire (Seabrook Station, 

Units 1 & 2), CLI-78-1, 7 NRC 1, 29 n.43 (1978). See also New England Coalition on 

Nuclear Pollution v. NRC, 582 F.2d 87, 94 (1st Cir. 1978); Philadelphia Electric Co.

(Limerick Generating Station, Units 1 & 2), ALAB-819, 22 NRC 681, 705-07 (1985), 

citing 10 C.F.R. § 51.102 (1985). 

If the changes contained in an errata document for an FEIS do not reveal an obvious 

need for a modification of plant design or a change in the outcome of the cost-benefit 

analysis, the document need not be circulated or issued as a supplemental FEIS. Nor 

is it necessary to issue a supplemental FEIS when timely comments on the draft 

environmental impact statement (DEIS) have not been adequately considered. The 

Licensing Board may merely effect the required amendment of the FEIS through its 

initial decision. Long Island Lighting Co. (Jamesport Nuclear Power Station, 

Units 1 & 2), LBP-77-21, 5 NRC 684 (1977); Arizona Public Service Co. (Palo Verde 

Nuclear Generating Station, Units 2 & 3), LBP-83-36, 18 NRC 45, 47 (1983). 
GENERAL MATTERS 80 JUNE 2011 

The NRC Staff is not required to respond to comments identified in an intervenor’s 

dismissed contention concerning the adequacy of the FEIS, where the Staff has 

prepared and circulated for public comment a supplemental FEIS which addresses and 

evaluates the matters raised by the comments on the FEIS. Kerr-McGee Chemical 

Corp. (West Chicago Rare Earths Facility), LBP-89-35, 30 NRC 677, 698 (1989), 

vacated and reversed on other grounds, ALAB-944, 33 NRC 81 (1991). 

Similarly, there is no need for a supplemental impact statement and its circulation for 

public comment where the changes in the proposed action which would be evaluated 

in such a supplement mitigate the environmental impacts, although circulation of a 

supplement may well be appropriate or necessary where the change has significant 

aggravating environmental impacts. Public Service Co. of New Hampshire (Seabrook 

Station, Units 1 & 2), CLI-78-1, 7 NRC 1, 28-29 (1978). 

NEPA does not require the staff of a federal agency conducting a NEPA review to 

consider the record, as developed in collateral state proceedings, concerning the 

environmental effects of the proposed federal action. Failure to review the state 

records prior to issuing an FEIS, therefore, is not grounds for requiring preparation and 

circulation of a supplemental FEIS. Long Island Lighting Co. (Jamesport Nuclear 

Power Station, Units 1 & 2), LBP-77-21, 5 NRC 684 (1977). 

A proposed shift in ownership of a plant with no modification to the physical structure of 

the facility does not by itself cast doubt on the benefit to be derived from the plant such 

as to require redrafting and recirculating the EIS. Public Service Co. of Indiana, Inc.

(Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-459, 7 NRC 179, 184 

(1978). 

The Staff’s environmental evaluation is not deficient merely because it contains only a 

limited discussion of facility decommissioning alternatives. There is little value in 

considering at the operating license stage what method of decommissioning will be 

most desirable many years in the future in light of the knowledge which will have been 

accumulated by that time. Vermont Yankee Nuclear Power Corp. (Vermont Yankee 

Nuclear Power Station), ALAB-179, 7 AEC 159, 178 n.32 (1974). 

Incorporation by reference. While an agency may not reflexively rubber-stamp an 

analysis performed by others, actually redoing incorporated calculations would be a 

duplication of resources not required by law. Louisiana Energy Services, L.P. (National 

Enrichment Facility), CLI-05-28, 62 NRC 721, 730 (2005). 

6.16.3.1 Effect of Failure to Comment on Draft Environmental Impact Statement 

Where an intervenor received and took advantage of an opportunity to review and 

comment on a DEIS and where his comments did not involve the Staff’s alternate 

site analysis and did not bring sufficient attention to that analysis to stimulate the 

Commission’s consideration of it, the intervenor will not be permitted to raise and 

litigate, at a late stage in the hearings, the issue as to whether the Staff’s alternate 

site analysis was adequate, although he may attack the conclusions reached in the 

FEIS. Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), 

ALAB-366, 5 NRC 39, 66-67 (1977), aff’d as modified, CLI-77-8, 5 NRC 503 (1977). 
JUNE 2011 GENERAL MATTERS 81 

Since the public is afforded early opportunity to participate in the NEPA review 

process, imposition of a greater burden for justification for changes initiated by 

untimely comments is appropriate. Public Service Co. of New Hampshire

(Seabrook Station, Units 1 & 2), CLI-77-8, 5 NRC 503, 539 (1977). 

6.16.3.2 Stays Pending Remand for Inadequate EIS 

Where judicial review disclosed inadequacies in an agency’s EIS prepared in good 

faith, a stay of the underlying activity pending remand does not follow automatically. 

Whether the project need be stayed essentially must be decided on the basis of 

(1) a traditional balancing of the equities and (2) a consideration of any likely 

prejudice to further decisions that might be called for by the remand. Consumers 

Power Co. (Midland Plant, Units 1 & 2), ALAB-395, 5 NRC 772, 784-785 (1977). 

6.16.4 Alternatives 

NEPA requires an agency to consider alternatives to its own proposed action which 

may significantly affect the quality of the human environment. An agency should not 

consider alternatives to the applicant’s stated goals. Citizens Against Burlington, Inc. 

v. Busey, 938 F.2d 190, 199 (D.C. Cir. 1991). 

Although an applicant may limit its purpose to production of baseload power, a 

contention that an environmental report must consider alternative energy as part of a 

baseload power generation system (combination in another alternative energy source) 

may be admissible. Luminant Generation Co., LLC (Comanche Peak Nuclear Power 

Plant, Units 3 & 4), LBP-09-17, 70 NRC 311, 353 (2009). 

Perhaps the most important environmentally related task the Staff has under NEPA is 

to determine whether an application should be turned down because there is some 

other site at which the plant ought to be located. No other environmental question is 

both so significant in terms of the ultimate outcome and so dependent upon facts 

particular to the application under scrutiny. Consequently, the Appeal Board expects 

the Staff to take unusual care in performing its analysis and in disclosing the results of 

its work to the public. Florida Power & Light Company (St. Lucie Nuclear Power Plant, 

Unit 2), ALAB-435, 6 NRC 541, 543, 544 (1977). 

“In the context of the environmental impact statement drafting process, when a 

reasonable alternative has been identified it must be objectively considered by the 

evaluating agency so as not to fall victim to ‘the sort of tendentious decisionmaking that 

NEPA seeks to avoid.’” Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage 

Installation), LBP-01-34, 54 NRC 293, 302 (2001), citing I-291 Why? Association v. 

Burns, 372 F.Supp. 223, 253 (D. Conn. 1974), aff’d 517 F.2d 1077 (2d Cir. 1975). 

A hard look for a superior alternative is a condition precedent to a licensing 

determination that an applicant’s proposal is acceptable under NEPA. Public Service 

Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-471, 7 NRC 477, 513 

(1978). When NEPA requires an EIS, the Commission is obliged to take a harder look 

at alternatives than if the proposed action were inconsequential. Florida Power & Light 

Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), ALAB-660, 14 NRC 987, 

1005-1006 (1981), citing Portland General Electric Co. (Trojan Nuclear Plant), 

ALAB-531, 9 NRC 263 (1979). In fact, the NEPA mandate that alternatives to the 
GENERAL MATTERS 82 JUNE 2011 

proposed licensing action be explored and evaluated does not come into play where 

the proposed action will neither (1) entail more than negligible environmental impacts, 

nor (2) involve the commitment of available resources respecting which there are 

unresolved conflicts. Portland General Electric Co. (Trojan Nuclear Plant), ALAB-531, 

9 NRC 263, 265-266 (1979). 

NEPA was not intended merely to give the appearance of weighing alternatives that 

are in fact foreclosed. Pending completion of sufficient comparison between an 

applicant’s proposed site and others, in situations where substantial work has already 

taken place, the Commission can preserve the opportunity for a real choice among 

alternatives only by suspending outstanding construction permits. Public Service Co. 

of New Hampshire (Seabrook Station, Units 1 & 2), CLI-78-14, 7 NRC 952, 958-959 

(1978). 

Despite the importance of alternate site considerations, where all parties have 

proceeded since the inception of the proceeding on the basis that there was no need to 

examine alternate sites beyond those referred to in the FEIS, a party cannot insist at 

the “eleventh hour” that still other sites be considered in the absence of a compelling 

showing that the newly suggested sites possess attributes which establish them to 

have greater potential as alternatives than the sites already selected as alternatives. 

Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-495, 

8 NRC 304, 306 (1978). 

A party seeking consideration at an advanced stage of a proceeding of a site other 

than the alternate sites already explored in the proceeding must at least provide 

information regarding the salient characteristics of the newly suggested sites and the 

reasons why these characteristics show that the new sites might prove better than 

those already under investigation. Public Service Co. of New Hampshire (Seabrook 

Station, Units 1 & 2), ALAB-499, 8 NRC 319, 321 (1978). 

The fact that a possible alternative is beyond the Commission’s power to implement 

does not absolve the Commission of any duty to consider it, but that duty is subject to a 

“rule of reason.” Factors to be considered include distance from site to load center, 

institutional and legal obstacles, and the like. Public Service Co. of New Hampshire

(Seabrook Station, Units 1 & 2), ALAB-471, 7 NRC 477, 486 (1978). 

Under NEPA, there is no need for Boards to consider economically better alternatives, 

which are not shown to also be environmentally preferable. No study of alternatives is 

needed under NEPA unless the action significantly affects the environment 

(§ 102(2)(c)) or involves an unresolved conflict in the use of resources (§ 102(2)(e)). 

Where an action will have little environmental effect, an alternative could not be 

materially advantageous. Virginia Electric & Power Co. (North Anna Nuclear Power 

Station, Units 1 & 2), ALAB-584, 11 NRC 451, 456-458 (1980); Virginia Electric & 

Power Co. (North Anna Power Station, Units 1 & 2), LBP-85-34, 22 NRC 481, 491 

(1985). 

Pursuant to NEPA § 102(2)(e), the Staff must analyze possible alternatives, even if it 

believes that such alternatives need not be considered because the proposed action 

does not significantly affect the environment. A Board is to make the determination, on 

the basis of all the evidence presented during the hearing, whether other alternatives 

must be considered. “Some factual basis (usually in the form of the Staff’s 
JUNE 2011 GENERAL MATTERS 83 

environmental analysis) is necessary to determine whether a proposal ‘involves 

unresolved conflicts concerning alternative uses of available resources’ – the statutory 

standard of Section 102(2)(E).” Virginia Electric & Power Co. (North Anna Power 

Station, Units 1 & 2), LBP-85-34, 22 NRC 481, 491 (1985), quoting Consumers Power 

Co. (Big Rock Point Nuclear Plant), ALAB-636, 13 NRC 312, 332 (1981). See also

Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), 

LBP-88-26, 28 NRC 440, 449-50 (1988), reconsid., LBP-89-6, 29 NRC 127, 134-35 

(1989), rev’d on other grounds, ALAB-919, 30 NRC 29 (1989), vacated in part on other 

grounds and remanded, CLI-90-4, 31 NRC 333 (1990), request for clarification, ALAB938, 32 NRC 154 (1990), clarified, CLI-90-7, 32 NRC 129 (1990). 

Where a Licensing Board is required by regulation to consider reasonable alternatives 

pursuant to NEPA, the fact that the hearing notice does not refer to this consideration 

of reasonable alternatives does not excuse the Board from conducting this required 

analysis. Dominion Nuclear North Anna, LLC (Early Site Permit for North Anna ESP 

Site), CLI-05-17, 62 NRC 5, 46 (2005). 

NEPA does not require the NRC to choose the environmentally preferred site. NEPA 

is primarily procedural, requiring the NRC to take a hard look at environmental 

consequences and alternatives. Rochester Gas & Electric Corp. (Sterling Power 

Project, Nuclear Unit 1), CLI-80-23, 11 NRC 731, 736 (1980). 

The application of the Commission’s “obviously superior” standard for alternative sites 

(see Section 6.15.4.1 infra) does not affect the Staff’s obligation to take the hard look. 

The NRC’s “obviously superior” standard is a reasonable exercise of discretion to insist 

on a high degree of assurance that the extreme action of denying an application is 

appropriate in view of inherent uncertainties in benefit-cost analysis. Rochester Gas & 

Electric Corp. (Sterling Power Project, Nuclear Unit 1), CLI-80-23, 11 NRC 731, 735 

(1980). 

Whether or not the parties to a particular licensing proceeding may agree that none of 

the alternatives (at Seabrook, alternative sites) to the proposal under consideration is 

preferable, based on a NEPA cost-benefit balance, it remains the Commission’s 

obligation to satisfy itself that that is so. Public Service Co. of New Hampshire

(Seabrook Station, Units 1 & 2), ALAB-557, 10 NRC 153, 155 (1979). 

The scope of a NEPA environmental review in connection with a facility license 

amendment is limited to a consideration of the extent to which the action under the 

amendment will lead to environmental impacts beyond those previously evaluated. 

The consideration of alternatives in such a case does not include alternatives to the 

continued operation of the plant, even though the amendment might be necessary to 

continued reactor operation. Florida Power & Light Co. (Turkey Point Nuclear 

Generating, Units 3 & 4), LBP-81-14, 13 NRC 677, 684-85 (1981), citing Consumers 

Power Co. (Big Rock Point Nuclear Plant), ALAB-636, 13 NRC 312 (1981). 

Issues concerning alternative energy sources in general may no longer be considered 

in operating license proceedings. Dairyland Power Coop. (La Crosse Boiling Water 

Reactor), LBP-82-58, 16 NRC 512, 527 (1982). In general, the NRC’s environmental 

evaluation in an operating license proceeding will not consider need for power, 

alternative energy sources, or alternative sites. 10 C.F.R. §§ 51.95, 51.106. 
GENERAL MATTERS 84 JUNE 2011 

The FEIS must include a statement on the alternatives to the proposed action. See

42 U.S.C. § 4332(2)(C)(iii). Generally, this includes a discussion of the agency 

alternative of “no action” (see 40 C.F.R. § 1502.14(d)), which is most easily viewed as 

maintaining the status quo. Louisiana Energy Services (Claiborne Enrichment Center), 

CLI-98-3, 47 NRC 77, 97 (1998); Hydro Resources, Inc., CLI-01-4, 53 NRC 31, 54 

(2001). 

With regard to the proposed alternatives in an EIS, there need not be much discussion 

for the “no action” alternative. It is most simply viewed as maintaining the status quo. 

Hydro Resources, Inc., CLI-01-4, 53 NRC 31, 54 (2001). 

Agencies need only discuss those alternatives that are reasonable and will bring about 

the ends of the proposed action. When the purpose of the action is to accomplish one 

thing, it makes no sense to consider alternative ways by which another thing might be 

achieved. When reviewing a discrete license application filed by a private applicant, a 

federal agency may appropriately accord substantial weight to the preferences of the 

applicant and/or sponsor in the siting and design of the project. The agency thus may 

take into account the economic goals of the project’s sponsor. Hydro Resources, Inc., 

CLI-01-4, 53 NRC 31, 55 (2001); Nuclear Management Co., LLC (Monticello Nuclear 

Generating Plant), LBP-05-31, 62 NRC 735, 753 (2005). See also USEC, Inc.

(American Centrifuge Plant), CLI-06-10, 63 NRC 451, 467-68 (2006); Exelon 

Generation Company (Early Site Permit for Clinton ESP Site), LBP-05-19, 62 NRC 

134, 156-57 (2005). 

While an agency must not craft a set of alternatives so narrowly as to render it a 

foregone conclusion that the proposed action will be deemed superior, agencies may 

still limit the alternatives they consider to those that are reasonable. Where the agency 

action in question is a decision on a license or permit application submitted by a private 

party, the agency may consider the applicant’s purposes and goals when determining 

which alternatives are reasonable. Exelon Generation Company (Early Site Permit for 

Clinton ESP Site), LBP-05-19, 62 NRC 134, 158 n.77 (2005). 

“Demand-side management,” or energy efficiency, is not a reasonable alternative that 

would advances the goals of the applicant, which has a limited purpose, selling 

electricity. Neither the NRC nor the applicant has the mission (or power) to implement 

a general societal interest in energy efficiency. Exelon Generation Co., LLC (Early Site 

Permit for Clinton ESP Site), CLI-05-29, 62 NRC 801, 806 (2005); see also Entergy 

Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), LBP-08-13, 

68 NRC 43, 205 (2008).

A Licensing Board’s consideration of reasonable alternatives is substantially different 

when it is adjudicating an application for a license for an actual facility, such as a 

uranium enrichment facility, than when it is adjudicating an early site permit application. 

For the early site permit application, consideration of reasonable alternatives looks at 

only alternative sites; for the license application, the analysis of reasonable alternatives 

would be substantially broader. Dominion Nuclear North Anna, LLC (Early Site Permit 

for North Anna ESP Site), CLI-05-17, 62 NRC 5, 48 (2005). 

NEPA does not require an applicant to look at every conceivable alternative, but rather 

requires only consideration of feasible, nonspeculative, reasonable alternatives. The 

reasonable alternatives for license renewal proceedings are limited to discrete 
JUNE 2011 GENERAL MATTERS 85 

electrical power generation sources that are feasible technically and available 

commercially. Section 8.2 of the GEIS addressed the need to consider energy 

conservation for the “no-action” alternative. Entergy Nuclear Operations, Inc. (Indian 

Point Nuclear Generating Units 2 & 3), LBP-08-13, 68 NRC 43, 205 (2008). 

6.16.4.1 Obviously Superior Standard for Site Selection 

The standard for approving a site is acceptability, not optimality. Public Service Co. 

of New Hampshire (Seabrook Station, Units 1 & 2), CLI-77-8, 5 NRC 503 (1977). 

Due to the more extensive environmental studies made of the proposed site in 

comparison to alternate sites, more of the environmental costs of the selected site 

are usually discovered. Upon more extensive analysis of alternate sites, additional 

cost will probably be discovered. Moreover, a Licensing Board can do no more than 

accept or reject the application for the proposed site; it cannot ensure that the 

applicant will apply for a construction permit at the alternate site. For these reasons, 

a Licensing Board should not reject a proposed site unless an alternate site is 

“obviously superior” to the proposed site. CLI-77-8, 5 NRC at 526. Standards of 

acceptability, instead of optimality, apply to approval of plant designs as well. 

CLI-77-8, 5 NRC at 526. In view of all of this, an applicant’s selection of a site may 

be rejected on the grounds that a preferable alternative exists only if the alternative 

is “obviously superior.” Florida Power & Light Co. (St. Lucie Nuclear Power Plant, 

Unit 2), ALAB-435, 6 NRC 541 (1977). For a further discussion of the “obviously 

superior” standard with regard to alternatives, see Public Service Co. of New 

Hampshire (Seabrook Station, Units 1 & 2), ALAB-422, 6 NRC 33, 67, 78 (1977). 

The Commission’s obviously superior standard for alternate sites has been upheld 

by the Court of Appeals for the First Circuit. The Court held that, given the 

necessary imprecision of the cost-benefit analysis and the fact that the proposed 

site will have been subjected to closer scrutiny than any alternative, NEPA does not 

require that the single best site for environmental purposes be chosen. New 

England Coalition on Nuclear Pollution v. NRC, 582 F.2d 87, 95 (1st Cir. 1978). 

A Licensing Board determination that none of the potential alternative sites 

surpasses a proposed site in terms of providing new generation for areas most in 

need of new capacity cannot of itself serve to justify a generic rejection of all those 

alternative sites on institutional, legal, or economic grounds. Public Service Co. of 

New Hampshire (Seabrook Station, Units 1 & 2), ALAB-471, 7 NRC 477, 491 

(1978). 

To establish that no suggested alternative sites are “obviously superior” to the 

proposed site, there must be either (1) an adequate evidentiary showing that the 

alternative sites should be generically rejected or (2) sufficient evidence for informed 

comparisons between the proposed site and individual alternatives. Public Service 

Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-471, 7 NRC 477, 498 

(1978). 

It is not enough for rejection of all alternative sites to show that a proposed site is a 

rational selection from the standpoint solely of system reliability and stability. For 

the comparison to rest on this limited factor, it would also have to be shown that the 

alternative sites suffer so badly on this factor that no need existed to compare the 
GENERAL MATTERS 86 JUNE 2011 

sites from other standpoints. Public Service Co. of New Hampshire (Seabrook 

Station, Units 1 & 2), ALAB-471, 7 NRC 477, 497 (1978). 

For application of the “obviously superior” standard, see Rochester Gas and Electric 

Corporation (Sterling Power Project, Nuclear Unit 1), ALAB-502, 8 NRC 383, 

393-399 (1978), particularly at 8 NRC 397 where the Appeal Board equates 

“obviously” to “clearly and substantially.” 

6.16.4.2 Standards for Conducting Cost-Benefit Analysis Related to Alternatives 

If, under NEPA, the Commission finds that environmentally preferable alternatives 

exist, then it must undertake a cost-benefit balancing to determine whether such 

alternatives should be implemented. Florida Power & Light Co. (Turkey Point 

Nuclear Generating Plant, Units 3 & 4), ALAB-660, 14 NRC 987, 1004 (1981), citing

Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-458, 7 NRC 155 (1978). 

But if there are no preferable environmental alternatives, such cost-benefit 

balancing does not take place. Progress Energy Carolinas, Inc. (Shearon Harris 

Nuclear Power Plant, Units 2 & 3), LBP-08-21, 68 NRC 554, 576 (2008) (quoting

Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-458, 7 NRC 155, 162 

(1978)). 

Neither the NRC Staff nor a Licensing Board is limited to reviewing only those 

alternate sites unilaterally selected by the applicant. To do so would permit 

decisions to be based upon "sham" alternatives elected to be identified by an 

applicant and would often result in consideration of something less than the full 

range of reasonable alternatives that NEPA contemplates. The adequacy of the 

alternate site analysis performed by the Staff remains a proper subject of inquiry by 

the Licensing Board, notwithstanding the fact that none of the alternatives selected 

by the applicant proves to be "obviously superior" to the proposed site. Tennessee 

Valley Authority (Phipps Bend Nuclear Plant, Units 1 & 2), LBP-77-60, 6 NRC 647, 

659 (1977). Nevertheless, the NEPA evaluation of alternatives is subject to a “rule 

of reason” and application of that rule “may well justify exclusion or but limited 

treatment” of a suggested alternative. Public Service Co. of New Hampshire

(Seabrook Station, Units 1 & 2), ALAB-422, 6 NRC 33, 100 (1977), citing CLI-77-8. 

5 NRC 503, 540 (1977). 

In Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), CLI-77-8, 

5 NRC 503 (1977), the Commission set forth standards for determining whether, in 

connection with conducting a second cost-benefit analysis to consider alternate 

sites, the Licensing Board should account for nontransferable investments made at 

the previously approved site. Where the earlier environmental analysis of the 

proposed site had been soundly made, the projected costs of construction at the 

alternate site should take into account nontransferable investments in the proposed 

site. Where the earlier analysis lacked integrity, prior expenditures in the proposed 

site should be disregarded. CLI-77-8, 5 NRC at 533-536. 

Population is one – but only one – factor to be considered in evaluating alternative 

sites. All other things being equal, it is better to place a plant farther from population 

concentrations. The population factor alone, however, usually cannot justify 

dismissing alternative sites which meet the Commission’s regulations. Public 
JUNE 2011 GENERAL MATTERS 87 

Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-471, 

7 NRC 477, 510 (1978). 

In alternative site considerations, the presence of an existing reactor at a particular 

site where the proposed reactor might be built is significant, but not dispositive. 

Rochester Gas & Electric Corporation (Sterling Power Project, Nuclear Unit 1), 

ALAB-502, 8 NRC 383, 394-395 (1978). 

In assessing the environmental harm associated with land clearance necessary to 

build a nuclear facility, one must look at what is being removed – not just how many 

acres are involved. Rochester Gas & Electric Corporation (Sterling Power Project, 

Nuclear Unit 1), ALAB-502, 8 NRC 383, 395 (1978). 

In considering the economic costs of building a facility at an alternative site, the 

costs of replacement power which might be required by reason of the substitution at 

a late date of an alternate site for the proposed site may be considered. Rochester 

Gas & Electric Corp. (Sterling Power Project, Nuclear Unit 1), ALAB-502, 8 NRC 

383, 394 (1978). However, where no alternative site is “obviously superior” from an 

environmental standpoint, there is no need to consider this “delay cost” factor. 

Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), CLI-77-8, 5 

NRC 503, 533-536 (1977); Rochester Gas & Electric Corp. (Sterling Power Project, 

Nuclear Unit 1), ALAB-502, 8 NRC 383, 398 (1978). Indeed, unless an alternative 

site is shown to be environmentally superior, comparisons of economic costs are 

irrelevant. Rochester Gas & Electric Corp. (Sterling Power Project, Nuclear Unit 1), 

ALAB-502, 8 NRC 383, 395 n.25 (1978). 

6.16.5 Need for Facility 

NEPA does not foreclose reliance, in resolution of “need-of-power” issues, on the 

judgment of local regulatory bodies that are charged with the responsibility to analyze 

future electrical demand growth, at least where the forecasts are not facially defective, 

are explained on a detailed record, and a principal participant in the local proceeding 

has been made available for examination in the NRC proceeding. Carolina Power & 

Light Co. (Shearon Harris Nuclear Power Plant, Units 1–4), ALAB-490, 8 NRC 234, 

241 (1978). 

The general rule applicable to cases involving differences or changes in demand 

forecasts is not whether the utility will need additional generating capacity but when. 

Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 & 2), LBP-80-30, 

12 NRC 683, 691 (1980). 

The standard for judging the “need-for-power” is whether a forecast of demand is 

reasonable and additional or replacement generating capacity is needed to meet that 

demand. Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1-4), 

ALAB-490, 8 NRC 234, 237 (1978). 

For purposes of NEPA, need-for-power and alternative energy source issues are not to 

be considered in operating license proceedings for nuclear power plants. Dairyland 

Power Coop. (La Crosse Boiling Water Reactor), LBP-82-58, 16 NRC 512, 527-528 

(1982); Carolina Power & Light Co. & North Carolina Eastern Municipal Power Agency

(Shearon Harris Nuclear Power Plant), ALAB-837, 23 NRC 525, 544-546 (1986). 
GENERAL MATTERS 88 JUNE 2011 

In general, the NRC’s environmental evaluation in an operating license proceeding will 

not consider need for power, alternative energy sources, or alternative sites. 

10 C.F.R. §§ 51.95, 51.106. 

NEPA does not require NRC Staff, when preparing an EIS for an offsite ISFSI, to 

consider whether or not the nation as a whole “needs” the facility. Private Fuel 

Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-04-4, 59 NRC 31, 

40 (2004). 

6.16.6 Cost-Benefit Analysis Under NEPA 

The NEPA cost-benefit analysis considers the costs and benefits to society as a whole. 

Rather than isolate the costs or benefits to a particular group, overall benefits are 

weighed against overall costs. Detroit Edison Co. (Enrico Fermi Atomic Power Plant, 

Unit 2), LBP-78-11, 7 NRC 381, 391 (1978); Louisiana Energy Services (Claiborne 

Enrichment Center), CLI-98-3, 47 NRC 77 (1998). 

A cost-benefit analysis should include the consideration and balancing of qualitative as 

well as quantitative impacts. Those factors which cannot reasonably be quantified 

should be considered in qualitative terms. Kerr-McGee Chemical Corp. (West Chicago 

Rare Earths Facility), LBP-84-42, 20 NRC 1296, 1329-1330 (1984), citing Statement of 

Considerations for 10 C.F.R. Part 51, 49 Fed. Reg. 9,363 (March 12, 1984); Louisiana 

Energy Services (Claiborne Enrichment Center), CLI-98-3, 47 NRC 77 (1998). 

NEPA requires a weighing of the environmental costs of a project against its benefits to 

society at large; however, while economic benefits are properly considered in an EIS, 

NEPA does not transform the financial costs and benefits into environmental costs and 

benefits. Thus, the Commission rejected an intervenor’s request to reopen a 

proceeding and supplement an EIS where it found that the resulting difference in the 

NEPA analysis would be primarily financial (i.e., an increase in the licensee’s 

expenses, reducing the project’s economic benefits). Private Fuel Storage, L.L.C.

(Independent Spent Fuel Storage Installation), CLI-06-3, 63 NRC 19, 30 (2006). 

Where a Licensing Board is required by regulation (e.g., by 10 C.F.R. § 51.105(a)(3)) 

to weigh costs versus benefits pursuant to NEPA, the fact that the hearing notice does 

not refer to this weighing of costs and benefits does not excuse the Board from 

conducting this required analysis. Dominion Nuclear North Anna, LLC (Early Site 

Permit for North Anna ESP Site), CLI-05-17, 62 NRC 5, 46 (2005). 

In weighing the costs and benefits of a facility, adjudicatory boards must consider the 

time and resources that have already been invested if the facility has been partially 

completed. Money and time already spent are irrelevant only where the NEPA 

comparison is between completing the proposed facility on the one hand and 

abandoning that facility on the other. Vermont Yankee Nuclear Power Corp. (Vermont 

Yankee Nuclear Power Station), ALAB-392, 5 NRC 759 (1977). In comparing the 

costs of completion of a facility at the proposed site to the costs of building the facility 

at an alternate site, the Commission may consider the fact that costs have already 

been incurred at the proposed site. New England Coalition on Nuclear Pollution v. 

NRC, 582 F.2d 87, 95-96 (1st Cir. 1978). 
JUNE 2011 GENERAL MATTERS 89 

Unless a proposed nuclear unit has environmental disadvantages when compared to 

alternatives, differences in financial cost are of little concern. Public Service Co. of 

Oklahoma (Black Fox Station, Units 1 & 2), LBP-78-26, 8 NRC 102, 161 (1978); 

Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2 & 3), 

LBP-82-117A, 16 NRC 1964, 1993 (1982), citing Consumers Power Co. (Midland 

Plant, Units 1 & 2), ALAB-458, 7 NRC 155, 162 (1978). Only after an environmentally 

superior alternative has been identified do economic considerations become relevant. 

Dairyland Power Coop. (La Crosse Boiling Water Reactor), LBP-82-58, 16 NRC 512, 

527 (1982). The Commission is not in the business of regulating the market strategies 

of licensees. Under NEPA, determination of economic benefits and costs that are 

tangential to environmental consequences are within a wide area of agency discretion. 

Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-05-28, 62 NRC 

721, 726 (2005). 

A reasonably foreseeable, nonspeculative, substantial reduction in benefits should 

trigger the need, under NEPA, to reevaluate the cost-benefit balance of a proposed 

action before further irreversible environmental costs are incurred. Long Island 

Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-57, 18 NRC 445, 630-

31 (1983). 

The NRC considers need-for-power and alternative energy sources (e.g., a coal plant) 

as part of its NEPA cost-benefit analysis at the construction permit stage for a nuclear 

power reactor. Carolina Power and Light Co. and North Carolina Eastern Municipal 

Power Agency (Shearon Harris Nuclear Power Plant, Units 1 & 2), LBP-83-27A, 

17 NRC 971, 972 (1983). See Niagara Mohawk Power Corp. (Nine Mile Point Nuclear 

Station, Unit 2), 1 NRC 347, 352-72 (1975); Public Service Co. of New Hampshire

(Seabrook Station, Units 1 & 2), CLI-77-8, 5 NRC 503, 522 (1977). In the operating 

license environmental analysis, however, need-for-power and alternative energy 

sources are not considered and contentions which directly implicate need-for-power 

projections and comparisons to coal are barred by the regulations; correlatively, such 

comparative cost savings may not be counted as a benefit in the Staff’s NEPA costbenefit analysis. Carolina Power and Light Co. and North Carolina Eastern Municipal 

Power Agency (Shearon Harris Nuclear Power Plant, Units 1 & 2), LBP-83-27A, 17 

NRC 971, 974 (1983). 

Even if the cost-benefit balance for a plant is favorable, measures may be ordered to 

minimize particular impacts. Such measures may be ordered without awaiting the 

ultimate outcome of the cost-benefit balance. Philadelphia Electric Co. (Limerick 

Generating Station, Units 1 & 2), LBP-83-11, 17 NRC 413, 419 (1983). 

While the balancing of costs and benefits of a project is usually done in the context of 

an EIS prepared because the project will have significant environmental impacts, at 

least one court has implied that a cost-benefit analysis may be necessary for certain 

federal actions which, of themselves, do not have a significant environmental impact. 

Specifically, the court opined that an operating license amendment derating reactor 

power significantly could upset the original cost-benefit balance and, therefore, require 

that the cost-benefit balance for the facility be reevaluated. Union of Concerned 

Scientists v. AEC, 499 F.2d 1069, 1084-85 (D.C. Cir. 1974). 

In assessing how economic benefits are portrayed, a key consideration of several 

courts has been whether the economic assumptions of the FEIS were so distorted as 
GENERAL MATTERS 90 JUNE 2011 

to impair fair consideration of the project’s adverse environmental effects. Louisiana 

Energy Services (Claiborne Enrichment Center), CLI-98-3, 47 NRC 77, 89 (1998). 

Sunk costs are as a matter of law not appropriately considered in an operating license 

cost-benefit balance. Consumers Power Co. (Midland Plant, Units 1 & 2), LBP-82-63, 

16 NRC 571, 586-87 (1982), citing Public Service Co. of New Hampshire (Seabrook 

Station, Units 1 & 2), CLI-77-8, 5 NRC 503, 534 (1977); Consumers Power Co.

(Midland Plant, Units 1 & 2), LBP-82-95, 16 NRC 1401, 1404-1405 (1982). 

An adequate FEIS for a nuclear facility necessarily includes the lesser impacts 

attendant to low-power testing of the facility and removes the need for a separate 

focusing on questions such as the costs and benefits of low-power testing. Pacific Gas 

& Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-728, 17 NRC 

777, 795 (1983), review denied, CLI-83-32, 18 NRC 1309 (1983). 

When Licensing Boards, pursuant to NEPA, are considering the environmental impacts 

of licensing a facility, they must weigh the costs of constructing and operating the 

facility versus the benefits of doing so. Yet, where the proceeding concerns merely an 

early site permit application, the Board should not attempt to weigh costs and benefits. 

That weighing process must be postponed until the review of an actual license 

application to build a facility at the site in question, because until then there would not 

be enough specific information about the project to permit a proper and meaningful 

cost-benefit analysis. Dominion Nuclear North Anna, LLC (Early Site Permit for North 

Anna ESP Site), CLI-05-17, 62 NRC 5, 46-47 (2005); see also System Energy 

Resources, Inc. (Early Site Permit for Grand Gulf ESP Site), CLI-07-14, 65 NRC 216, 

218-19 (2007) (“The effects of short-term damage to the environment cannot be 

meaningfully assessed at the ESP stage because such an inquiry requires weighing 

the short-term damage against long-term benefits of the project, and the long-term 

benefits cannot be assessed until the construction permit or COL stage”); Dominion 

Nuclear North Anna, LLC (Early Site Permit for North Anna ESP Site), CLI-07-27, 66 

NRC 215, 236 (2007) (Because certain environmental effects simply could not be 

meaningfully assessed at the ESP stage, the Staff’s decision to defer consideration of 

those effects until a time when they can be accurately assessed was consistent with 

NEPA’s requirements). 

Under NRC regulations (10 C.F.R. § 52.18), an EIS for an early site permit application 

does not need to assess the benefits of the project. Exelon Generation Company

(Early Site Permit for Clinton ESP Site), LBP-05-19, 62 NRC 134, 167 (2005); System 

Energy Resources, Inc. (Early Site Permit for Grand Gulf ESP Site), LBP-07-1, 65 NRC 

27, 99 (2007) (The NRC Staff’s EIS analysis for the ESP need not include an 

assessment of the benefits). 

Analysis of the costs of alternative power generation technologies and the costs of 

constructing and operating the proposed nuclear facility were deemed unnecessary by 

the Board where it had not been shown that a reasonable alternative to the proposed 

nuclear facility would be environmentally preferable. Clinton ESP, LBP-05-19, 62 NRC 

at 176-79. 

There is a difference between an “environmental impact” and a purely economic 

benefit discussed in an EIS. NEPA’s cost-benefit analysis requires the agency to 

weigh economic benefits against environmental impacts. This does not, however, 
JUNE 2011 GENERAL MATTERS 91 

transform those economic benefits into environmental impacts. Private Fuel Storage, 

L.L.C. (Independent Spent Fuel Storage Installation), CLI-04-22, 60 NRC 125, 147-48 

(2004). 

Congress’s alleged preference for onsite storage of high-level radioactive waste, as 

expressed in the Nuclear Waste Policy Act, is neither an economic nor an 

environmental cost or benefit of the proposed licensing action that must be considered 

as part of NEPA’s cost-benefit analysis. Congressional preferences are not 

necessarily the most environmentally benign nor the most economically beneficial. 

PFS, CLI-04-22, 60 NRC at 152. 

6.16.6.1 Consideration of Specific Costs Under NEPA 

When water quality decisions have been made by the U.S. Environmental 

Protection Agency (EPA) pursuant to the Federal Water Pollution Control Act 

(FWPCA) Amendments of 1972 and these decisions are raised in NRC licensing 

proceedings, the NRC is bound to take EPA’s considered decisions at face value 

and simply to factor them into the NEPA cost-benefit analysis. Carolina Power & 

Light Co. (H.B. Robinson, Unit 2), ALAB-569, 10 NRC 557, 561-62 (1979). 

The environmental and economic costs of decommissioning necessarily comprise a 

portion of the cost-benefit analysis which the Commission must make. 

Pennsylvania Power & Light Co. (Susquehanna Steam Electric Station, Units 1 & 2), 

LBP-79-6, 9 NRC 291, 313 (1979). 

Alternative methods of decommissioning do not have to be discussed. All that need 

be shown is that the estimated costs do not tip the balance against the plant and 

that there is reasonable assurance that an applicant can pay for them. 

Pennsylvania Power & Light Co. (Susquehanna Steam Electric Station, Units 1 & 2), 

LBP-79-6, 9 NRC 291, 314 (1979). 

6.16.6.1.1 Cost of Withdrawing Farmland from Production 

(Also see Section 3.8.3.5.1) 

6.16.6.1.2 Socioeconomic Costs as Affected by Increased Employment and 

Taxes from Proposed Facility 

Increased employment and tax revenue cannot be included on the benefit side in 

striking the ultimate NEPA cost-benefit balance for a particular plant. But the 

presence of such factors can certainly be taken into account in weighing the 

potential extent of the socioeconomic impact which the plant might have upon 

local communities. Public Service Co. of New Hampshire (Seabrook Station, 

Units 1 & 2), ALAB-471, 7 NRC 477, 509 n.58 (1978). 

6.16.7 Consideration of Class 9 Accidents/“Remote and Speculative” Accidents in 

an EIS 

The emergency core cooling system (ECCS) Final Acceptance Criteria as set forth in 

10 C.F.R. § 50.46 and Appendix K to 10 C.F.R. Part 50 assume that the ECCS will 

operate during an accident. On the other hand, Class 9 accidents postulate the failure 
GENERAL MATTERS 92 JUNE 2011 

of the ECCS. Thus, on its face, consideration of Class 9 accidents would appear to be 

a challenge to the Commission’s regulations. However, the Commission has squarely 

held that the regulations do not preclude the use of inconsistent assumptions about 

ECCS failure for other purposes. Thus, the prohibition of challenges to the regulations 

in adjudicatory proceedings does not preclude the consideration of Class 9 accidents 

and a failure of ECCS related thereto in EISs and proceedings thereon. Offshore 

Power Systems (Floating Nuclear Power Plants), ALAB-489, 8 NRC 194, 221 (1978). 

The Commission no longer relies on the accident classification scale in conducting 

environmental reviews. Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719, 725 (3rd 

Cir. 1989). 

Because the law does not require consistency in treatment of two parties in different 

circumstances, the Staff does not violate principles of fairness in considering Class 9 

accidents in EISs for floating but not land-based plants. The Staff need only provide a 

reasonable explanation why the differences justify a departure from past agency 

practice. Offshore Power Systems (Floating Nuclear Power Plants), ALAB-489, 

8 NRC 194, 222 (1978). 

In proceedings instituted prior to June 1980, serious (Class 9) accidents need be 

considered only upon a showing of “special circumstances.” Dairyland Power Coop.

(La Crosse Boiling Water Reactor), LBP-82-58, 16 NRC 512, 529 (1982); 45 Fed. Reg. 

40,101 (June 13, 1980). The subsequent Commission requirement that NEPA analysis 

include consideration of Class 9 accidents (45 Fed. Reg. 40,101) cannot be equated 

with a health and safety requirement. Public Service Co. of New Hampshire (Seabrook 

Station, Units 1 & 2), LBP-82106, 16 NRC 1649, 1664 (1982). The fact that a nuclear 

power plant is located near an earthquake fault and in an area of known seismic 

activity does not constitute a special circumstance. Pacific Gas & Electric Co. (Diablo 

Canyon Nuclear Power Plant, Units 1 & 2), ALAB-781, 20 NRC 819, 826-828 (1984), 

aff’g in part, LBP-82-70, 16 NRC 756 (1982) (full-power license for Unit 1). See also

Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB728, 17 NRC 777, 795-796 (1983). 

Absent new and significant safety information, Licensing Boards may not act on 

proposals concerning Class 9 accidents in operating reactors. Pacific Gas & Electric 

Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), LBP-86-21, 23 NRC 849, 870 

(1986), citing 50 Fed. Reg. 32,144, 32,144-45 (Aug. 8, 1985). Licensing Boards may 

not admit contentions which seek safety measures to mitigate or control the 

consequences of Class 9 accidents in operating reactors. Vermont Yankee Nuclear 

Power Corp. (Vermont Yankee Nuclear Power Station), LBP-87-17, 25 NRC 838, 

846-47 (1987), aff’d in part and rev’d in part, ALAB-869, 26 NRC 13, 30-31 (1987), 

reconsid. denied, ALAB-876, 26 NRC 277 (1987); Vermont Yankee Nuclear Power 

Corp. (Vermont Yankee Nuclear Power Station), LBP-88-26, 28 NRC 440, 443-45, 

446 (1988), reconsid., LBP-89-6, 29 NRC 127, 132-35 (1989), rev’d, ALAB-919, 

30 NRC 29, 45-47 (1989), vacated in part and remanded, CLI-90-4, 31 NRC 333 

(1990), request for clarification, ALAB-938, 32 NRC 154 (1990), clarified, CLI-90-7, 

32 NRC 129 (1990). See also Public Service Co. of New Hampshire (Seabrook 

Station, Units & 2), LBP-89-3, 29 NRC 51, 54 (1989), aff’d on other grounds, 

ALAB-915, 29 NRC 427 (1989). However, pursuant to their NEPA responsibilities, 

Licensing Boards may consider the risks of such accidents. Vermont Yankee Nuclear 

Power Corp., LBP-87-17, 25 NRC 838, 854-55 (1987), aff’d in part and rev’d in part, 

ALAB-869, 26 NRC 13, 31 n.28 (1987), reconsid. denied, ALAB-876, 26 NRC 277, 285 
JUNE 2011 GENERAL MATTERS 93 

(1987). See Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power 

Station), LBP-89-6, 29 NRC 127, 132-35 (1989) (citing Sierra Club v. NRC, 862 F.2d 

222 (9th Cir. 1988) and the NRC’s Severe Accident Policy Statement, 50 Fed. Reg. 

32,138 (Aug. 8, 1985)), rev’d, ALAB-919, 30 NRC 29 (1989), vacated in part and 

remanded, CLI-90-4, 31 NRC 333 (1990), request for clarification, ALAB-938, 32 NRC 

154 (1990), clarified, CLI-90-7, 32 NRC 129 (1990). 

In Diablo Canyon and Vermont Yankee, the licensees applied for license amendments 

which would permit the expansion of each facility’s spent fuel pool storage capacity. 

The intervenors submitted contentions, based on hypothetical accident scenarios, and 

requested the preparation of environmental impact statements. The Appeal Board 

rejected the contentions after determining that the hypothetical accident scenarios 

were based on remote and speculative events, and thus were Class 9 or beyonddesign-basis accidents which could not provide a proper basis for admission of the 

contentions. The Appeal Board has made it clear that: (1) NEPA does not require the 

preparation of an EIS on the basis of an assertion of a hypothetical accident that is a 

Class 9 or beyond-design-basis accident, citing San Luis Obispo Mothers for Peace v. 

NRC, 751 F.2d 1287 (D.C. Cir. 1984), aff’d on reh’q en banc, 789 F.2d 26 (1986), cert. 

denied, 479 U.S. 923 (1986); and (2) the NEPA Policy Statement, 45 Fed. Reg. 40,101 

(June 13, 1980), which describes the circumstances under which the Commission will 

consider, as a matter of discretion, the environmental impacts of beyond design-basis 

accidents, does not apply to license amendment proceedings. See Vermont Yankee 

Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-876, 26 NRC 

277, 283-85 (1987); Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, 

Units 1 & 2), ALAB-877, 26 NRC 287, 293-94 (1987); Pacific Gas & Electric Co.

(Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-880, 26 NRC 449, 458-460 

(1987), aff’g, LBP-87-24, 26 NRC 159 (1987), remanded on other grounds sub nom.

Sierra Club v. NRC, 862 F.2d 222 (9th Cir. 1988); Vermont Yankee Nuclear Power 

Corp. (Vermont Yankee Nuclear Power Station), LBP-88-26, 28 NRC 440, 443-45, 446 

(1988), reconsid., LBP-89-6, 29 NRC 127, 132-35 (1989), rev’d, ALAB-919, 30 

NRC 29, 47-51 (1989), vacated in part and remanded, CLI-90-4, 31 NRC 333 (1990), 

request for clarification, ALAB-938, 32 NRC 154 (1990), clarified, CLI-90-7, 32 NRC 

129 (1990). See also Florida Power & Light Co. (St. Lucie Nuclear Power Plant, 

Unit 1), LBP-88-lOA, 27 NRC 452, 458-59 (1988), aff’d on other grounds, ALAB-893, 

27 NRC 627 (1988). 

NRC Staff can make a determination without a full probabilistic risk assessment 

analysis about whether a postulated accident sequence is “remote and speculative” (so 

as not to require an analysis of its impact in an EIS) based on existing materials 

available to it, probabilistic and otherwise, supplemented by additional information it 

might obtain from the applicant in an environmental report or through requests for 

additional information. Carolina Power & Light Co. (Shearon Harris Nuclear Power 

Plant), LBP-01-9, 53 NRC 239, 252 (2001). 

The Atomic Safety and Licensing Board interprets the Commission’s intent to be firmly 

directed to deciding what is “remote and speculative” by examining the probabilities 

inherent in a proposed accident scenario. Carolina Power & Light Co. (Shearon Harris 

Nuclear Power Plant), LBP-00-19, 52 NRC 85, 97 (2000). 
GENERAL MATTERS 94 JUNE 2011 

6.16.8 Power of NRC Under NEPA 

The Licensing Board is not obliged under NEPA to consider all issues which are 

currently the subject of litigation in other forums and which may someday have an 

impact on the amount of effluent available. Arizona Public Service Co. (Palo Verde 

Nuclear Generating Station, Units 1, 2 & 3), LBP-82-45, 15 NRC 1527, 1528, 1530 

(1982). 

The Commission is not required by NEPA to hold formal hearings on site preparation 

activities because NEPA did not alter the scope of the Commission’s jurisdiction under 

the AEA. United States Dep’t of Energy et al. (Clinch River Breeder Reactor Plant), 

CLI-82-23, 16 NRC 412, 421 (1982), citing Gage v. AEC, 479 F.2d 1214, 1220 n.19 

(D.C. Cir. 1972); 39 Fed. Reg. 14,506, 14,507 (Apr. 24, 1979). “While NEPA clearly 

mandates that an agency fully consider environmental issues, it does not itself provide 

for a hearing on those issues.” Kelley v. Selin, 42 F.3d 1501, 1511 (6th Cir. 1995), 

citing Union of Concerned Scientists v. NRC, 920 F.2d 50, 56 (D.C. Cir. 1990). 

NEPA requires that the Commission prepare an EIS only for major actions significantly 

affecting the environment. United States Dep’t of Energy et al. (Clinch River Breeder 

Reactor Plant), CLI-82-23, 16 NRC 412, 424 (1982). 

A federal agency may consider separately under NEPA the different segments of a 

proposed federal action under certain circumstances. Where approval of the segment 

under consideration will not result in any irreversible or irretrievable commitments to 

remaining segments of the proposed action, the agency may address the activities of 

that segment separately. United States Dep’t of Energy et al. (Clinch River Breeder 

Reactor Plant), CLI-82-23, 16 NRC 412, 424 (1982). 

An agency will consider the following factors to determine if it should confine its 

environmental analysis under NEPA to the portion of the plan for which approval is 

being sought: (1) whether the proposed portion has substantial independent utility; 

(2) whether approval of the proposed portion either forecloses the agency from later 

withholding approval of subsequent portions of the overall plan or forecloses 

alternatives to subsequent portions of the plan; and (3) if the proposed portion is part of 

a larger plan, whether that plan has become sufficiently definite such that there is high 

probability that the entire plan will be carried out in the near future. Commonwealth 

Edison Co. (Braidwood Nuclear Power Station, Units 1 & 2), LBP-85-43, 22 NRC 805, 

810 (1985), citing Swain v. Brinegar, 542 F.2d 364, 369 (7th Cir. 1976) (en banc). 

Applying these criteria, the Board determined that it was not required to assess the 

environmental impacts of possible future construction and operation of transmission 

lines pursuant to an overall grid system long-range plan when considering a presently 

proposed part of the transmission system (operation of the Braidwood nuclear facility). 

Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 & 2), LBP-85-

43, 22 NRC 805, 810-12 (1985). 

The NRC Staff may, if it desires, perform a more complete review than the minimum 

legally required. Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), 

LBP-82-72, 16 NRC 968, 972 (1982). 
JUNE 2011 GENERAL MATTERS 95 

In some limited cases, NRC Staff review of a licensee’s preliminary environmental 

document may satisfy the requirement for an EA. Portland General Electric Co.

(Trojan Nuclear Power Station), CLI-95-13, 42 NRC 125 (1995). 

Compliance with the National Historic Preservation Act does not preclude the need to 

comply with NEPA with regard to impacts on historic and cultural aspects of the 

environment. Therefore, noise impacts on proposed historic districts must be 

evaluated and, if necessary, mitigation measures undertaken. Philadelphia Electric 

Co. (Limerick Generating Station, Units 1 & 2), LBP-83-11, 17 NRC 413, 435 (1983). 

See also Hydro Resources, Inc., LBP-05-26, 62 NRC 442, 472 (2005) (To comply with 

NEPA in this regard, “an agency must reasonably (1) consider the historic and cultural 

resources in the affected area; (2) assess the impact of the proposed action, and 

reasonable alternatives to that action, on cultural resources; (3) disseminate the 

relevant facts and assessments for public comment; and (4) respond to legitimate 

concerns.”). 

NEPA does not require the Commission to reveal sensitive government security 

information regarding the agency’s environmental analysis, and the Commission will 

not do so when no compelling policy reason exists. Pacific Gas and Electric Company

(Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), CLI-08-26, 

68 NRC 509, 514 (2008); see also Pacific Gas and Electric Company (Diablo Canyon 

Power Plant Independent Spent Fuel Storage Installation), CLI-08-1, 67 NRC 1, 20 

(2008). 

6.16.8.1 Powers in General 

The Commission may prescribe such regulations, orders and conditions as it deems 

necessary under any activity authorized pursuant to the AEA, and NEPA requires 

the Commission to exercise comparable regulatory authority in the environmental 

area. Wisconsin Electric Power Co. (Point Beach, Unit 2), ALAB-82, 5 AEC 350, 

352 (1972). 

Where necessary to assure that NEPA is complied with and its policies protected, 

Licensing Boards can and must ignore stipulations among the parties to that effect. 

Consolidated Edison Co. (Indian Point Nuclear Generating Unit 3), CLI-75-14, 

2 NRC 835 (1975). Beyond this, Licensing Boards have independent 

responsibilities to enforce NEPA and may raise environmental issues sua sponte. 

Tennessee Valley Authority (Hartsville Nuclear Power Plant, Units 1A, 2A, 1B & 2B), 

ALAB-380, 5 NRC 572 (1977). 

In addressing the question as to the degree to which NEPA allows the NRC to 

preempt state and local regulation with respect to nuclear facilities, the Appeal 

Board held that the federal doctrine of preemption invalidates local zoning decisions 

that substantially obstruct or delay the effectuation of an NRC license condition 

imposed by the Commission pursuant to NEPA. Consolidated Edison Co. (Indian 

Point Nuclear Generating Unit 2), ALAB-399, 5 NRC 1156, 1169-70 (1977). 

However, the Appeal Board also indicated that, where a question is presented as to 

whether state or local regulations relating to alteration of a nuclear power plant are 

preempted under NEPA, the NRC should refrain from ruling on that question until 

regulatory action has been taken by the state or local agency involved. ALAB-399 

at 1170. To the same effect in this regard is Consolidated Edison Co. (Indian Point 
GENERAL MATTERS 96 JUNE 2011 

Nuclear Generating Unit 2), ALAB-453, 7 NRC 31, 35 (1978), wherein the Appeal 

Board reiterated that federal tribunals should refrain from ruling on questions of 

federal preemption of state law where a state statute has not yet been definitively 

interpreted by the state courts or where an actual conflict between federal and state 

authority has not ripened. 

A state or political subdivision thereof may not substantially obstruct or delay 

conditions imposed upon a plant’s operating license by the NRC pursuant to its 

NEPA responsibilities, as such actions would be preempted by federal law. 

However, a state may refuse to authorize construction of a nuclear power plant on 

environmental or other grounds and may prevent or halt operation of an already built 

plant for some valid reason under state law. Consolidated Edison Co. (Indian Point 

Nuclear Generating Unit 2), ALAB-453, 7 NRC 31, 34-35 (1978). 

When another agency has yet to resolve a major issue pertaining to a particular 

nuclear facility, the NRC may allow construction to continue at that facility only if the 

NRC’s NEPA analysis encompasses all likely outcomes of the other agency’s 

review. Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), 

CLI-78-14, 7 NRC 952, 957 (1978). 

A Licensing Board may rule on the adequacy of the FEIS once it is introduced into 

evidence and may modify it if necessary. A Licensing Board’s authority to issue 

directions to the NRC Staff regarding the performance of its independent 

responsibilities to prepare a draft environmental statement is limited. Pennsylvania 

Power & Light Co. (Susquehanna Steam Electric Station, Units 1 & 2), LBP-80-18, 

11 NRC 906, 909 (1980). 

Neither NEPA nor the AEA applies to activities occurring in foreign countries and 

subject to their sovereign control. Philadelphia Electric Co. (Peach Bottom Atomic 

Power Station, Units 2 & 3), ALAB-562, 10 NRC 437, 445-46 (1979). 

6.16.8.2 Transmission Line Routing 

Consistent with its interpretation of the Commission’s NEPA authority (see

Wisconsin Electric Power Co. (Point Beach, Unit 2), ALAB-82, 5 AEC 350 (1972)), 

the Appeal Board has held that the NRC has the authority under NEPA to impose 

conditions (i.e., require particular routes) on transmission lines, at least to the extent 

that the lines are directly attributable to the proposed nuclear facility. Detroit Edison 

Co. (Greenwood Energy Center, Units 2 & 3), ALAB-247, 8 AEC 936, 939 (1974). 

In addition, the Commission has legal authority to review the offsite environmental 

impacts of transmission lines and to order changes in transmission routes selected 

by an applicant. Public Service Co. of New Hampshire (Seabrook Station, 

Units 1 & 2), ALAB-422, 6 NRC 33, 83 (1977). Two federal circuits have upheld this 

view. Public Service Company of New Hampshire v. NRC, 582 F.2d 77 

(1st Cir. 1978); Detroit Edison Power Co. v. NRC, 630 F.2d 450, 451 (6th Cir. 1980); 

but see, Limited Work Authorizations for Nuclear Power Plants, 

72 Fed. Reg. 57,416, 57,442 (Oct. 9, 2007) (indicating that construction activities do 

not include building transmission lines and hence no LWA permit is required for 

such activities). See also Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 

551 U.S. 644, 667-68 (2007) (citing Dep’t of Transp. v. Public Citizen, 541 U.S. 752, 

770 (2004) (noting that agencies must only follow NEPA for discretionary actions 
JUNE 2011 GENERAL MATTERS 97 

because “an agency cannot be considered the legal ‘cause’ of an action that it has 

no statutory discretion not to take”). 

6.16.8.3 Pre-LWA Activities/Offsite Activities 

NEPA and the Commission’s implementing regulations proscribe environmentally 

significant construction activities associated with a nuclear plant, including activities 

beyond the site boundary, without prior Commission approval. A “site,” in the 

context of the Commission’s NEPA responsibilities, includes land where the 

proposed plant is to be located and its necessary accouterments, including 

transmission lines and access ways. Kansas Gas & Electric Co. (Wolf Creek 

Nuclear Generating Station, Unit 1), CLI-77-1, 5 NRC 1 (1977). See Section 6.20 

on activities prior to issuance of an LWA or construction permit. 

6.16.8.4 Relationship to EPA with Regard to Cooling Systems 

The NRC may accept and use without independent inquiry EPA’s determination of 

the magnitude of the marine environmental impacts from a cooling system in striking 

an overall cost-benefit balance for the facility. Public Service Co. of New Hampshire

(Seabrook Station, Units 1 & 2), CLI-78-1, 7 NRC 1, 23-24 (1978). For a discussion 

of the statutory framework governing the relationship between the NRC and EPA in 

this area, see CLI-78-1, 7 NRC at 23-26. That relationship may be described thusly: 

EPA determines what cooling system a nuclear power facility may use and the NRC 

factors the impacts resulting from use of that system into the NEPA cost-benefit 

analysis. CLI-78-1, 7 NRC at 26. 

The NRC’s acceptance and use, without independent inquiry, of EPA’s 

determination as to the aquatic impacts of the Seabrook Station was upheld in 

New England Coalition on Nuclear Pollution v. NRC, 582 F.2d 87, 98 (1st Cir. 1978), 

aff’g Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), 

CLI-78-1, 7 NRC 1 (1978). 

The Commission may rely on final decisions of EPA prior to completion of judicial 

review of such decisions. Public Service Co. of New Hampshire (Seabrook Station, 

Units 1 & 2), CLI-78-17, 8 NRC 179, 180 (1978). 

Although an adverse environmental impact on water quality resulting from a cooling 

system discharge is an important input in the NEPA cost-benefit balance, a 

Licensing Board cannot require alteration of a facility’s cooling system if that system 

has been approved by EPA. Carolina Power & Light Co. (H.B. Robinson, Unit 2), 

LBP-78-22, 7 NRC 1052, 1063-64 (1978). 

The NRC need not relitigate the issue of environmental impacts caused by a 

particular cooling system when it is bound to accept that cooling system authorized 

by EPA. Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), 

LBP-82-72, 16 NRC 968, 970 (1982), citing Public Service Co. of New Hampshire

(Seabrook Station, Units 1 & 2), CLI-78-1, 7 NRC 1, 24 (1978). 
GENERAL MATTERS 98 JUNE 2011 

6.16.8.5 NRC Power Under NEPA re the Federal Water Pollution Control Act 

Section 511(c)(2) of the FWPCA does not change a licensing agency’s obligation to 

weigh degradation of water quality in its NEPA cost-benefit balance, but the 

substantive regulation of water pollution is in EPA’s hands. Tennessee Valley 

Authority (Yellow Creek Nuclear Plant, Units 1 & 2), ALAB-515, 8 NRC 702, 712-13 

(1978). 

The Commission and the Appeal Board have stated that Section 511(c)(2) of the 

FWPCA requires that the NRC accept EPA’s determinations on effluent limitations 

at face value and prohibits the NRC from undertaking any independent analysis. 

Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc.

(Vermont Yankee Nuclear Power Station), CLI-07-16, 65 NRC 371, 387 (2007); 

Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Unit 3), ALAB-532, 

9 NRC 279, 282 (1979). 

Section 511(c)(2) of the Clean Water Act does not preclude the NRC from 

considering noise impacts of the cooling water system on the surrounding 

environment. Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), 

LBP-83-11, 17 NRC 413, 419 (1983). 

When water quality decisions have been made by EPA pursuant to the FWPCA 

Amendments of 1972 and these decisions are raised in NRC licensing proceedings, 

the NRC is bound to take EPA’s considered decisions at face value and simply to 

factor them into the NEPA cost-benefit analysis. Carolina Power & Light Co.

(H.B. Robinson, Unit 2), ALAB-569, 10 NRC 557, 561-62 (1979). 

6.16.8.6 Environmental Justice 

The NRC integrates environmental justice considerations into its NEPA review 

process. See Policy Statement on the Treatment of Environmental Justice Matters 

in NRC Regulatory and Licensing Actions, 69 Fed. Reg. 52,040 (Aug. 24, 2004). 

The policy statement reflects principles established by the Commission in 

adjudications. See Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage 

Installation), CLI-02-20, 56 NRC 147, 153 (2002), rev’g LBP-02-8, 55 NRC 171 

(2002); Louisiana Energy Services (Claiborne Enrichment Center), CLI-98-3, 

47 NRC 77, 100-10 (1998). See also Private Fuel Storage, L.L.C. (Independent 

Spent Fuel Storage Installation), CLI-04-09, 59 NRC 120 (2004); Hydro Resources, 

Inc., CLI-01-4, 53 NRC 31, 64 (2001). 

The purpose of Executive Order 12898, 3 C.F.R. 859 (1995) is to “underscore 

certain provision[s] of existing law that can help ensure that all communities and 

persons across the nation live in a safe and healthful environment.” It does not 

create any new legal rights or remedies. Louisiana Energy Services (Claiborne 

Enrichment Center), CLI-98-3, 47 NRC 77, 102 (1998); Private Fuel Storage, L.L.C.

(Independent Spent Fuel Storage Installation), CLI-98-13, 48 NRC 26, 35-36 (1998); 

Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-02-

20, 56 NRC 147, 153 (2002), rev’g LBP-02-8, 55 NRC 171 (2002); Private Fuel 

Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-04-9, 59 NRC 

120, 123 (2004). 
JUNE 2011 GENERAL MATTERS 99 

An agency inquiry into a license applicant’s supposed discriminatory motives or acts 

would be far removed from NEPA’s core interest in protecting the physical 

environment. Louisiana Energy Services (Claiborne Enrichment Center), CLI-98-3, 

47 NRC 77, 102 (1998) 

“Disparate impact” analysis is the principal tool for advancing environmental justice 

under NEPA. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage 

Installation), LBP-02-8, 55 NRC 171, 190 (2002). The NRC’s goal is to identify and 

adequately weigh or mitigate effects on low-income and minority communities that 

become apparent only by considering factors peculiar to those communities. 

Louisiana Energy Services (Claiborne Enrichment Center), CLI-98-3, 47 NRC 77, 

100 (1998); Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage 

Installation), CLI-98-13, 48 NRC 26, 36 (1998). The Commission has focused on 

addressing any disproportionately high and adverse effects in these communities. 

Hydro Resources, Inc., CLI-01-4, 53 NRC 31, 64 (2001). 

The NRC will not focus investigations on which subgroups within a minority 

community may obtain special benefits as compared to others. Claims of financial 

or political corruption do not belong in the NRC hearing process under the rubric of 

environmental justice or NEPA. Private Fuel Storage, L.L.C. (Independent Spent 

Fuel Storage Installation), CLI-02-20, 56 NRC 147, 156-57 (2002), rev’g LBP-02-8, 

55 NRC 171 (2002). Contentions that focus on the impact of a facility on the elderly 

are not admissible as environmental justice contentions, because such contentions 

must focus on minority and low-income populations. PPL Bell Bend, LLC (Bell Bend 

Nuclear Power Plant), LBP-09-18, 70 NRC 385, 414 (2009). 

Petitioners may not file for a hearing using Executive Order 12898, “Federal Actions 

to Address Environmental Justice in Minority Populations and Low-Income 

Populations” (1994) when the case concerns itself with an amendment for a site that 

has already been licensed. International Uranium Corp. (White Mesa Uranium Mill), 

LBP-97-12, 46 NRC 1, 8 (1997). Executive Order 12898, which directed agencies 

to take into account environmental justice issues in exercising their statutory duties, 

created no new substantive right. This executive order is relevant only to the 

Commission’s actions under NEPA and not under any other statutory duty; 

therefore, the Commission only takes into account “disproportionate adverse 

effects” of a project that peculiarly affect an environmental justice community and 

have some nexus to factors properly within the scope of NEPA. System Energy 

Resources, Inc. (Early Site Permit for Grand Gulf ESP Site), CLI-05-4, 61 NRC 10, 

13 (2005). 

Editing NEPA documents is not a function of the Commission’s hearing process. 

Busy Licensing Boards do not sit to parse and fine-tune EISs. Grand Gulf, 

CLI-05-4, 61 NRC at 19. 

Environmental justice reviews are necessarily case specific, and the methods and 

forms of Staff review, including decisions about whether to hold discussions with 

knowledgeable community and governmental representatives, will be left up to the 

informed discretion of the Staff. Dominion Nuclear North Anna, LLC (Early Site 

Permit for North Anna ESP Site), CLI-07-27, 66 NRC 215, 242-43 (2007). 
GENERAL MATTERS 100 JUNE 2011 

NEPA, which mandates a hard look at the environmental impact of proposed 

federal actions, is the only legal grounds for an admissible contention relating to 

environmental justice matters. Under NEPA, the purpose of an environmental 

justice review is to insure that the Commission considers and publicly discloses 

environmental factors peculiar to minority or low-income populations that may 

cause them to suffer harm disproportionate to that suffered by the general 

population. The goals of NEPA are to inform federal agencies and the public about 

the environmental effects of proposed projects. Entergy Nuclear Operations, Inc.

(Indian Point Nuclear Generating Units 2 and 3), LBP-08-13, 68 NRC 43, 199 

(2008). 

6.16.8.7 Relationship of NRC Environmental Reviews to State Law 

When the monitoring of contaminants in effluents is regulated through a state 

permit, the DEIS must address this monitoring, but compliance with state 

requirements is, in the first instance, a matter for the state. Louisiana Energy 

Services, L.P. (National Enrichment Facility), LBP-05-13, 61 NRC 385, 419 (2005). 

6.16.8.8 NEPA Disclosure Provisions 

NEPA claims are governed by NEPA’s own specific nondisclosure provision, not 

the more general provisions in the AEA or in NRC regulations. Pacific Gas and 

Electric Company (Diablo Canyon Power Plant Independent Spent Fuel Storage 

Installation), CLI-08-26, 68 NRC 509, 522 (2008), citing Weinburger v. Catholic 

Action League, 454 U.S. 139 (1981). Under NEPA, the agency may withhold from 

public disclosure any information that is exempt under the Freedom of Information 

Act (FOIA). Id. at 523. 

The Staff releases all documents with FOIA-exempt information redacted, which 

provides all the information in the environmental assessment that is suitable for 

public dissemination. Nothing in the agency’s procedural hearing rules requires 

greater disclosure of the agency’s environmental analysis. Pacific Gas and Electric 

Company (Diablo Canyon Power Plant Independent Spent Fuel Storage 

Installation), CLI-08-26, 68 NRC 509, 523 (2008). 

6.16.9 Spent Fuel Pool Proceedings 

A spent fuel capacity expansion proceeding is subject to the hybrid hearing process 

outlined in 10 C.F.R. Part 2, Subpart K, to the degree that any party wishes to invoke 

those procedures. 

A Licensing Board is not required to consider in a spent fuel pool expansion case the 

environmental effects of all other spent fuel pool capacity expansions. Because 

pending or past licensing actions affecting the capacity of other spent fuel pools could 

neither enlarge the magnitude nor alter the nature of the environmental effects directly 

attributable to the expansion in question, there is no occasion to take into account any 

such pending or past actions in determining the expansion application at bar. Portland 

General Electric Co. (Trojan Nuclear Plant), ALAB-531, 9 NRC 263, 267-68 (1979). 

The attempt, in a licensing proceeding for an individual pool capacity expansion, to 

challenge the absence of an acceptable generic long-term resolution of the waste 
JUNE 2011 GENERAL MATTERS 101 

management question was precluded in Northern States Power Co. (Prairie Island 

Nuclear Generating Plant, Units 1 & 2), ALAB-455, 7 NRC 41 (1978), remanded sub 

nom. Minnesota v. Nuclear Regulatory Commission, 602 F.2d 412 (D.C. Cir. 1979), 

restating the Commission’s policy that for the purposes of licensing actions, the 

availability of offsite spent fuel repositories in the relatively near term should be 

presumed. Portland General Electric Co. (Trojan Nuclear Plant), ALAB-531, 9 NRC 

263, 267-68 (1979); see also Vermont Yankee Nuclear Power Corp. (Vermont Yankee 

Nuclear Power Station), LBP-87-17, 25 NRC 838, 853-54 (1987) (Licensing Board 

rejected a contention which sought to examine the possibilities or effects of long-term 

or open-ended storage), aff’d in part and rev’d in part, ALAB-869, 26 NRC 13 (1987), 

reconsid. denied, ALAB-876, 26 NRC 277 (1987). 

The Licensing Board need not consider alternatives to pool capacity expansion in a 

proposed expansion proceeding, where the environmental effects of the proposed 

action are negligible. The NEPA mandate that alternatives to the proposed licensing 

action be explored and evaluated does not come into play where the proposed action 

will neither (1) entail more than negligible environmental impacts nor (2) involve the 

commitment of available resources respecting which there are unresolved conflicts. 

Portland General Electric Co. (Trojan Nuclear Plant), ALAB-531, 9 NRC 263, 265-66 

(1979); Public Service Electric and Gas Co. (Salem Nuclear Generating Station, 

Unit 1), ALAB-650, 14 NRC 43 (1981). See Florida Power and Light Co. (St. Lucie 

Nuclear Power Plant, Unit 1), LBP-88-LOA, 27 NRC 452, 459 (1988), aff’d on other 

grounds, ALAB-893, 27 NRC 627 (1988). 

The Atomic Safety and Licensing Board found that an intervenor’s assertions regarding 

sabotage risk to an expanded spent fuel pool did not provide a litigable basis for a 

NEPA contention. Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), 

LBP-00-19, 52 NRC 85, 97 (2000). 

In a license amendment proceeding to expand a spent fuel pool, the environmental 

review for such amendment need not consider the effects of continued plant operation 

where the environmental status quo will remain unchanged. Consumers Power Co.

(Big Rock Point Nuclear Plant), ALAB-636, 13 NRC 312, 326 (1981), citing Committee 

for Auto Responsibility v. Solomon, 603 F.2d 992 (D.C. Cir. 1979), cert. denied, 

445 U.S. 915 (1980). 

After analyzing the regulatory history, it was confirmed that 10 C.F.R. § 50.68(b)(2), 

(4), (7) contemplate the use of enrichment, burnup and soluble boron as criticality 

control measures. Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), 

LBP-00-12, 51 NRC 247, 260 (2000). 

There is no requirement under 10 C.F.R. 50.68(b)(4) that K-effective must be kept at or 

below .95 under all conditions, including the scenario involving a fresh fuel assembly 

misplacement concurrent with the loss of soluble boron. Carolina Power & Light Co.

(Shearon Harris Nuclear Power Plant), LBP-00-12, 51 NRC 247, 269 (2000). 

In a spent fuel pool proceeding, compliance with 10 C.F.R. § 50.55a affords 

compliance with Appendix B of Part 50. Carolina Power & Light Co. (Shearon Harris 

Nuclear Power Plant), LBP-00-12, 51 NRC 247, 272 (2000). 
GENERAL MATTERS 102 JUNE 2011 

6.16.10 Certificate of Compliance/Gaseous Diffusion Plant 

No EA or EIS is required for the issuance, amendment, modification, or renewal of a 

certificate of compliance for gaseous diffusion enrichment facilities, pursuant to 

10 C.F.R. § 51.22(c)(19). Although NRC regulations do not require a general review of 

the environmental impacts associated with the issuance of certificates of compliance, 

an environmental assessment of the impacts of compliance plan approval is required. 

U.S. Enrichment Corp., CLI-96-12, 44 NRC 231, 238-39 (1996). 

6.16.11 Waste Confidence Rule (NEPA) 

The waste confidence rule’s restriction on considering “environmental impacts” at 

10 C.F.R. § 51.23(b) does not expressly address how the NRC evaluates a project’s 

potential economic benefits. Private Fuel Storage, L.L.C. (Independent Spent Fuel 

Storage Installation), CLI-04-22, 60 NRC 125, 148 (2004). The waste confidence 

provisions were designed to limit the scope of the environmental inquiry to exclude 

looking at long-term effects as if there were no prospect for permanent disposal of 

waste. They were not designed to prevent the NRC from considering the very benefits 

for which a facility license is sought. Id.

6.16.12 Greenhouse Gases 

We expect the Staff to include consideration of carbon dioxide and other greenhouse 

gas emissions in its environmental reviews for major licensing actions under NEPA. 

The Staff’s analysis for reactor applications should encompass emissions from the 

uranium fuel cycle as well as from construction and operation of the facility to be 

licensed. The Staff should ensure that these issues are addressed consistently in 

agency NEPA evaluations and, as appropriate, update Staff guidance documents to 

address greenhouse gas emissions. Duke Energy Carolinas, LLC (Combined License 

Application for William States Lee III Nuclear Station, Units 1 & 2); Tennessee Valley 

Authority (Bellefonte Nuclear Power Plant, Units 3 & 4), CLI-09-21, 70 NRC 927, 931 

(2009). 

6.17 NRC Staff

6.17.1 Staff Role in Licensing Proceedings 

The NRC Staff generally has the final word in all safety matters, not placed into 

controversy by parties, at the operating license stage. Southern California Edison Co.

(San Onofre Nuclear Generating Station, Units 2 & 3), ALAB-680, 16 NRC 127, 143 

(1982), citing South Carolina Electric & Gas Co. (Virgil C. Summer Nuclear Station, 

Unit 1), ALAB-663, 14 NRC 1140, 1156 n.31 (1981). 

The NRC Staff has a continuing responsibility to assure that all regulatory requirements 

are met by an applicant and continue to be met throughout the operating life of a 

nuclear power plant. Southern California Edison Co. (San Onofre Nuclear Generating 

Station, Units 2 & 3), ALAB-680, 16 NRC 127, 143, 143 n.23 (1982). 

The NRC Staff has the primary responsibility for reviewing all safety and environmental 

issues prior to the award of any operating license. Houston Lighting & Power Co.

(South Texas Project, Units 1 & 2), LBP-82-91, 16 NRC 1364, 1369 (1982). 
JUNE 2011 GENERAL MATTERS 103 

An operating license may not be issued until the NRC makes the findings specified in 

10 C.F.R. § 50.57. It is the Staff’s duty to ensure the existence of an adequate basis 

for each of that section’s determinations. Commonwealth Edison Co. (Byron Nuclear 

Power Station, Units 1 & 2), ALAB-678, 15 NRC 1400, 1420 n.36 (1982), citing South 

Carolina Electric & Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-642, 

13 NRC 881, 895-896 (1981). 

The fact that an application for an operating license is uncontested does not mean that 

an operating license automatically issues. An operating license may not issue unless 

and until the NRC Staff makes the findings specified in 10 C.F.R. 50.57, including the 

ultimate finding that such issuance will not be inimical to the health and safety of the 

public. Washington Public Power Supply System (WPPSS Nuclear Project 2), 

ALAB-722, 17 NRC 546, 553 n.8 (1983), citing South Carolina Electric & Gas Co.

(Virgil C. Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881, 895-96 (1981). 

The same procedure applies under 10 C.F.R. § 70.23, 70.31 in the case of an 

application for a materials license. Philadelphia Electric Co. (Limerick Generating 

Station, Units 1 & 2), ALAB-778, 20 NRC 42, 48 (1984). 

In early site permit proceedings, it is appropriate for NRC Staff to prioritize facts that it 

will independently verify based on criteria such as those “involving first-of-a-kind 

analysis, use of new modeling techniques, application of new or revised review 

guidance, areas of higher significance based upon risk-informed reviews, or where the 

Staff’s independent analysis or technical experience and judgment does not support 

the analysis results of the Applicant.” Exelon Generation Co., LLC (Early Site Permit 

for Clinton ESP Site), CLI-07-12, 65 NRC 203, 208 (2007) 

In a contested operating license proceeding, a Licensing Board may authorize the 

Director of Nuclear Reactor Regulation to issue a license for fuel loading and 

precriticality testing in order to avoid delaying these activities pending a decision on the 

issuance of a full-power license. If the Board determines that any of the admitted 

contentions is relevant to fuel loading and precriticality testing, the Board must resolve 

the contention and make the related findings pursuant to 10 C.F.R. § 50.57(a) for the 

issuance of a license. The Director is still responsible for making the other § 50.57(a) 

findings. If there are no relevant contentions, the Board may authorize the Director to 

make all the § 50.57(a) findings. Commonwealth Edison Co. (Braidwood Nuclear 

Power Station, Units 1 & 2), LBP-86-31, 24 NRC 451, 453-54 (1986), citing 10 C.F.R. 

§ 50.57(c). See Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), 

LBP-86-34, 24 NRC 549, 553, 555-56 (1986), aff’d, ALAB-854, 24 NRC 783, 790 

(1986) (a Licensing Board is required to make findings concerning the adequacy of 

onsite emergency preparedness, pursuant to 10 C.F.R. § 50.47(d), only as to matters 

which are in controversy); Public Service Co. of New Hampshire (Seabrook Station, 

Units 1 & 2), ALAB-892, 27 NRC 485, 49093 (1988) (to authorize low-power operation 

pursuant to 10 C.F.R. § 50.57(c), a Board need only resolve those matters in 

controversy involving low-power, as opposed to full power, operation); Public Service 

Co. of New Hampshire (Seabrook Station, Units 1 & 2), LBP-88-20, 28 NRC 161, 166-

67 (1988), aff’d, ALAB-904, 28 NRC 509, 511 (1988). 

One of a number of Licensing Boards in the Shoreham operating license proceeding, 

having dismissed the government intervenors from the proceeding, found that the 

applicant’s motion for 25% power operation was unopposed. Pursuant to 
GENERAL MATTERS 104 JUNE 2011 

10 C.F.R. § 50.57(c), the Board authorized the Director of Nuclear Reactor Regulation 

to make the required findings under 10 C.F.R. § 50.57(a) and to issue a 25% power 

license. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-88-

30, 28 NRC 644, 648-49 (1988). The Appeal Board found that the Licensing Board’s 

decision did not give due regard to the rights of the government intervenors. Although 

the government intervenors had been dismissed by the Shoreham OL-3 Licensing 

Board, they still retained full party status before the Shoreham OL-5 Licensing Board. 

The Appeal Board believed that 10 C.F.R. § 50.57(c) gave the government intervenors 

the opportunity to be heard on the 25% power request to the extent that any of its 

contentions which might be admitted by the Shoreham OL-5 Board were relevant. The 

Appeal Board certified the case to the Commission. Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), ALAB-908, 28 NRC 626, 633-35 (1988). 

The Commission directed certification of the appeals to the Commission for decision 

and agreed with the Licensing Board, dismissed the intervenors and ordered the Staff 

to review any unresolved contentions, make the necessary § 50.57 findings, and wait 

for a Commission vote to authorize operation above 5% power. Long Island Lighting 

Co. (Shoreham Nuclear Power Station, Unit 1), CLI-89-2, 29 NRC 211 (1989). 

The NRC Staff may not deny an application without giving the reasons for the denial 

and indicating how the application failed to comply with statutory and regulatory 

requirements. Kerr-McGee Chemical Corp. (West Chicago Rare Earths Facility), 

LBP-85-3, 21 NRC 244, 250 (1985), citing SEC v. Chenery Corp., 318 U.S. 80, 94 

(1943), Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 & 2), 

ALAB-770, 19 NRC 1163, 1168-69 (1984), 5 U.S.C. § 555(e), 10 C.F.R. § 2.103(b). 

In general, the Staff does not occupy a favored position at hearing. It is, in fact, just 

another party to the proceeding. Vermont Yankee Nuclear Power Corp. (Vermont 

Yankee Nuclear Power Station), ALAB-138, 6 AEC 520, 532 (1973). The Staff’s views 

are in no way binding upon the Board and they cannot be accepted without being 

subjected to the same scrutiny as those of other parties. Consolidated Edison Co.

(Indian Point Nuclear Generating Units 2 & 3), ALAB-304, 3 NRC 1, 6 (1976); Southern 

California Edison Co. (San Onofre Nuclear Generating Station, Units 2 & 3), ALAB268, 1 NRC 383, 399 (1975); Ohio Edison Co. (Perry Nuclear Power Plant, Unit 1) et 

al., CLI-92-6, 35 NRC 86, 88-89 (1992). In the same vein, the Staff must abide by the 

Commission’s regulations just as an applicant or intervenor must do. Vermont Yankee 

Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-194, 7 AEC 

431, 435 (1974); Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 

3), ALAB-801, 21 NRC 479, 484 (1985). On the other hand, in certain situations, as 

where the Staff prepares a study at the express direction of the Commission, the Staff 

is an arm of the Commission and the primary instrumentality through which the NRC 

carries out its regulatory responsibilities, and its submissions are entitled to greater 

consideration. Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), 

CLI-76-17, 4 NRC 451 (1976). 

In a construction permit proceeding, the NRC Staff has a duty to produce the 

necessary evidence of the adequacy of the review of unresolved generic safety issues. 

Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), 

ALAB-728, 17 NRC 777, 806 (1983), review denied, CLI-83-32, 18 NRC 1309 (1983). 

After an order authorizing the issuance of a construction permit has become final 

agency action, and prior to the commencement of any adjudicatory proceeding on any 
JUNE 2011 GENERAL MATTERS 105 

operating license application, the exclusive regulatory power with regard to the facility 

lies with the Staff. Houston Lighting & Power Co. (South Texas Project, Units 1 & 2), 

ALAB-381, 5 NRC 582 (1977). Under such circumstances an adjudicatory board has 

no authority with regard to the facility or the Staff’s regulation of it. In the same vein, 

after a full-term, full-power operating license has issued and the order authorizing it has 

become final agency action, no further jurisdiction over the license lies with any 

adjudicatory board. Portland General Electric Co. (Trojan Nuclear Plant), ALAB-451, 

6 NRC 889, 891 n.3 (1977); Duquesne Light Co. (Beaver Valley Power Station, Unit 1), 

ALAB-408, 5 NRC 1383, 1386 (1977); Detroit Edison Co. (Enrico Fermi Atomic Power 

Plant, Unit 2), LBP-78-11, 7 NRC 381, 386, aff’d, ALAB-470, 7 NRC 473 (1978). 

Prior to issuing an operating license, the Director of Nuclear Reactor Regulation must 

find that Commission regulations, including those implementing NEPA, have been 

satisfied and that the activities authorized by the license can be conducted without 

endangering the health and safety of the public. Pennsylvania Power & Light Co. and 

Allegheny Electric Cooperative, Inc. (Susquehanna Steam Electric Station, 

Units 1 & 2), ALAB-693, 16 NRC 952, 956 n.7 (1982), citing 10 C.F.R. § 50.40(d); 

10 C.F.R. § 50.57; Northern States Power Co. (Prairie Island Nuclear Generating 

Plant, Units 1 & 2), ALAB-455, 7 NRC 41, 44 (1978), remanded on other grounds sub 

nom., Minnesota v. Nuclear Regulatory Commission, 602 F.2d 412 (D.C. Cir. 1979). 

Licensing Boards lack the power to direct the Staff in the performance of its 

independent responsibilities and, under the Commission’s regulatory scheme, Boards 

cannot direct the Staff to suspend review of an application or prepare an EIS or work, 

studies, or analyses being conducted or planned as part of the Staff’s evaluation of an 

application. New England Power Co. (NEP, Units 1 & 2), LBP-78-9, 7 NRC 271, 278-

79 (1978). Cf. U.S. Army (Jefferson Proving Ground), LBP-05-9, 61 NRC 218, 222 

(2005) (in a materials license proceeding, where the Staff delayed its technical review 

of a decommissioning-related proposal pending a licensee’s submission of relevant 

information requested by the Staff, a presiding officer found that he was foreclosed 

from either calling upon the Staff to justify its approach or directing the licensee to 

furnish a full explanation regarding its default in furnishing to the Staff the information 

sought from it). 

The Staff produces, among other documents, the SER and DEIS and FEIS. The 

studies and analyses which result in these reports are made independently by the 

Staff, and Licensing Boards have no role or authority in their preparation. The Board 

does not have any supervisory authority over that part of the application review 

process that has been entrusted to the Staff. Arizona Public Service Co. (Palo Verde 

Nuclear Generating Station, Units 2 & 3), LBP-83-36, 18 NRC 45, 48-49 (1983), citing

New England Power Co. (NEP Units 1 & 2), LBP-78-9, 7 NRC 271 (1978). See

Offshore Power Systems (Floating Nuclear Power Plants), ALAB-489, 8 NRC 194, 

206-07 (1978); Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), 

ALAB-785, 20 NRC 848, 865 n.52 (1984); Louisiana Power & Light Co. (Waterford 

Steam Electric Station, Unit 3), ALAB-812, 22 NRC 5, 56 (1985), citing Carolina Power 

& Light Co. (Shearon Harris Nuclear Power Plant), CLI-80-12, 11 NRC 514, 516-17 

(1980). 

Although the establishment of a local public document room is an independent Staff 

function, the presiding officer in an informal proceeding has directed the Staff to 

establish such a room in order to comply with the requirements of proposed regulations 
GENERAL MATTERS 106 JUNE 2011 

which had been made applicable to the proceeding. However, the presiding officer 

acknowledged that he lacked the authority to specify the details of the room’s 

operation. Alfred J. Morabito (Senior Operator’s License), LBP-88-5, 27 NRC 241, 

243-44 & n.1 (1988). 

Although the Licensing Boards and the NRC Staff have independent responsibilities, 

they are “partners” in implementation of the Commission’s policy that decisionmaking 

should be “both sound and timely,” and thus they must coordinate their operations in 

order to achieve this goal. Offshore Power Systems (Floating Nuclear Power Plants), 

ALAB-489, 8 NRC 194, 203 (1978). 

In an operating license proceeding (with the exception of certain NEPA issues), the 

applicant’s license application is in issue, not the adequacy of the Staff’s review of the 

application. An intervenor thus is free to challenge directly an unresolved generic 

safety issue by filing a proper contention but it may not proceed on the basis of 

allegations that the Staff has somehow failed in its performance. Pacific Gas & Electric 

Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-728, 17 NRC 777, 807 

(1983), review denied, CLI-83 32, 18 NRC 1309 (1983); Louisiana Power & Light Co.

(Waterford Steam Electric Station, Unit 3), ALAB-812, 22 NRC 5, 55-56 (1985). See

Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Unit 1), ALAB-921, 30 NRC 

177, 186 (1989); Curators of the University of Missouri, LBP-91-31, 34 NRC 29, 108-

109 (1991), clarified, LBP-91-34, 34 NRC 159 (1991). Furthermore, although the 

Commission expects its Staff to thoroughly consider all its licensing decisions, the 

issue for decision in adjudications is not whether the Staff performed its duty well, but 

instead whether the license application raises health and safety concerns. Curators of 

the University of Missouri, CLI-95-8, 41 NRC 386, 396 (1995). 

The adequacy of the manner in which the Staff conducts its review of a technical or 

safety matter is outside the scope of Commission proceedings. Pacific Gas & Electric 

Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), 

LBP-03-11, 58 NRC 47, 66 (2003). 

The general rule that the applicant carries the burden of proof in licensing proceedings 

does not apply with regard to alternate site considerations. For alternate sites, the 

burden of proof is on the Staff and the applicant’s evidence in this regard cannot 

substitute for an inadequate analysis by the Staff. Boston Edison Co. (Pilgrim Nuclear 

Generating Station, Unit 2), ALAB-479, 7 NRC 774, 794 (1978). The Staff plays a key 

role in assessing an applicant’s qualifications. Carolina Power & Light Co. (Shearon 

Harris Nuclear Power Plant), ALAB-577, 11 NRC 18, 34 (1980), modified, CLI-80-12, 

11 NRC 514 (1980). 

The Staff is assumed to be fair and capable of judging a matter on its merits. Nuclear 

Engineering Co. (Sheffield, Illinois Low-Level Radioactive Waste Disposal Site), 

CLI-80-1, 11 NRC 1, 4 (1980). See Public Service Co. of New Hampshire (Seabrook 

Station, Units 1 & 2), LBP-89-4, 29 NRC 62, 73 (1989), aff’d on other grounds, 

ALAB-918, 29 NRC 473 (1989), remanded on other grounds sub nom. Massachusetts 

v. NRC, 924 F.2d 311 (D.C. Cir. 1991), appeal dismissed as moot, ALAB-946, 33 NRC 

245 (1991). 

When conducting its review of the issues, the Staff should acknowledge differences of 

opinion among Staff members and give full consideration to views which differ from the 
JUNE 2011 GENERAL MATTERS 107 

official Staff position. Such discussion can often contribute to a more effective 

treatment and resolution of the issues. Louisiana Power & Light Co. (Waterford Steam 

Electric Station, Unit 3), ALAB-803, 21 NRC 575, 580-582 n.6 (1985). 

An early appraisal of an applicant’s capability does not foreclose the Staff from later 

altering its conclusions. Such an early appraisal would aid the public and the 

Commission in seeing whether a hearing is warranted. Carolina Power & Light Co.

(Shearon Harris Nuclear Power Plant), ALAB-577, 11 NRC 18, 33-34 (1980), reconsid., 

ALAB-581, 11 NRC 233 (1980), modified, CLI-80-12, 11 NRC 514 (1980). 

The Commission will not be drawn into contractual disputes between regulated parties, 

absent a concern for the public health and safety or the common defense and security 

or a need to enforce its orders, licenses, or regulations. CBS Corporation (Waltz Mill 

Facility), CLI-07-15, 65 NRC 221, 234 (2007). 

6.17.1.1 Staff Demands on Applicant or Licensee 

While the Commission, through the Regulatory Staff, has a continuing duty and 

responsibility under the AEA to assure that applicants and licensees comply with the 

applicable requirements, Duke Power Co. (William B. McGuire Nuclear Station, 

Units 1 & 2), ALAB-143, 6 AEC 623, 627 (1973), the Staff may not require an 

applicant to do more than the regulations require without a hearing. Vermont 

Yankee Nuclear Power Corp. (Vermont Yankee Power Station), ALAB-191, 

7 AEC 431, 445, 447 n.32 (1974). The Staff can require a general licensee to 

comply with public health and safety conditions which are more stringent than the 

Commission’s regulatory requirements applicable to general licensees. Wrangler 

Laboratories, ALAB-951, 33 NRC 505, 516-18 (1991). Because the law does not 

require consistency in treatment of two parties in different circumstances, the Staff 

does not violate principles of fairness in considering Class 9 accidents in EISs for 

floating but not land-based plants. The Staff need only provide a reasonable 

explanation why the differences justify a departure from past agency practice. 

Offshore Power Systems (Floating Nuclear Power Plants), ALAB-489, 8 NRC 194, 

222 (1978). 

The scope of the NRC regulatory authority does not extend to all questions of fire 

safety at licensed facilities; instead, the scope of agency regulatory authority with 

respect to fire protection is limited to the hazards associated with nuclear materials. 

Thus, while the agency’s radiological protection responsibility requires it to consider 

questions of fire safety, this does not convert the agency into the direct enforcer of 

local codes, Occupational Safety and Health Administration regulations, or national 

standards on fire, occupational, and building safety that it has not incorporated into 

its regulatory scheme. Private Fuel Storage, L.L.C. (Independent Spent Fuel 

Storage Installation), LBP-00-35, 52 NRC 364, 388 (2000), citing Curators of the 

University of Missouri, CLI-95-8, 41 NRC 386, 393 (1995); Curators of the University 

of Missouri, CLI-95-1, 41 NRC 71, 159 (1995). 

Only statutes, regulations, orders, and license conditions can impose requirements 

on applicants and licenses. Private Fuel Storage, L.L.C. (Independent Spent Fuel 

Storage Installation), LBP-00-35, 52 NRC 364, 390 (2000), citing Curators of the 

University of Missouri, CLI-95-1, 41 NRC at 41, 98. 
GENERAL MATTERS 108 JUNE 2011 

6.17.1.2 Staff Witnesses 

Except in extraordinary circumstances, a Licensing Board may not compel the Staff 

to furnish a particular named individual to testify – i.e., the Staff may select its own 

witnesses. 10 C.F.R. § 2.709(a) (formerly § 2.720(h)(2)(i)). However, once a 

certain individual has appeared as a Staff witness, he may be recalled and 

compelled to testify further. Commonwealth Edison Co. (Zion Station, Units 1 & 2), 

ALAB-226, 8 AEC 381, 391 (1974). A Board may require Staff witnesses to update 

their previous testimony on a relevant issue in light of new analyses and information 

which have been developed on the same subject. Louisiana Power & Light Co.

(Waterford Steam Electric Station, Unit 3), ALAB-786, 20 NRC 1087, 1094-1095 

n.13 (1984). 

The Commission’s rules provide that the Executive Director for Operations generally 

determines which Staff witnesses shall present testimony. An adjudicatory board 

may nevertheless order other NRC personnel to appear 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. Metropolitan 

Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-715, 17 NRC 102, 

104-05 (1983), citing 10 C.F.R. § 2.709(a) (formerly § 2.720(h)(2)(i)); Cleveland 

Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), ALAB-802, 

21 NRC 490, 500-501 (1985) (mere disagreement among NRC Staff members is 

not an exceptional circumstance); Carolina Power & Light Co. et al. (Shearon Harris 

Nuclear Power Plant), ALAB-856, 24 NRC 802, 811 (1986). See Safety Light Corp.

(Bloomsburg Site Decontamination), LBP-92-3A, 35 NRC 110, 111-112 (1992). See 

generally Pennsylvania Power & Light Co. (Susquehanna Steam Electric Station, 

Units 1 & 2), ALAB-613, 12 NRC 317, 323 (1980). 

6.17.1.3 Posthearing Resolution of Outstanding Matters by the Staff 

As a general proposition, issues should be dealt with in the hearings and not left 

over for later, and possibly more informal, resolution. The posthearing approach 

should be employed sparingly and only in clear cases, for example, where minor 

procedural deficiencies are involved. Louisiana Power & Light Co. (Waterford 

Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076, 1103 (1983), citing

Consolidated Edison Co. (Indian Point Nuclear Generating Unit 2), CLI-74-23, 

7 AEC 947, 951 n.8, 952 (1974). 

On the other hand, with respect to emergency planning, the Licensing Board may 

accept predictive findings and posthearing verification of the formulation and 

implementation of emergency plans. Commonwealth Edison Co. (Byron Nuclear 

Power Station, Units 1 & 2), LBP-84-2, 19 NRC 36, 212, 251-52, citing Louisiana 

Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC 

1076, 1103-04 (1983). 

Completion of the minor details of emergency plans is a proper subject for 

posthearing resolution by the NRC Staff. Kansas Gas & Electric Co. (Wolf Creek 

Generating Station, Unit 1), LBP-84-26, 20 NRC 53, 61-62 (1984), citing Louisiana 
JUNE 2011 GENERAL MATTERS 109 

Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC 

1076 (1983). 

A Licensing Board may refer minor matters which in no way pertain to the basic 

findings necessary for issuance of a license to the Staff for posthearing resolution. 

Such referral should be used sparingly, however. Consolidated Edison Co. (Indian 

Point Nuclear Generating Unit 2), CLI-74-23, 7 AEC 947, 951-52 (1974); Long 

Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-788, 

20 NRC 1102, 1159 (1984). Since delegation of open matters to the Staff is a 

practice frowned upon by the Commission and the Appeal Board, a Licensing Board 

properly decided to delay issuing a construction permit until it had reviewed a loan 

guarantee from the Rural Electrification Administration rather than delegating that 

responsibility to the Staff for posthearing resolution. Public Service Co. of Indiana, 

Inc. (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-461, 7 NRC 313, 

318 (1978). 

Posthearing resolution of licensing issues must not be employed to obviate the 

basic findings prerequisite to a license, including a reasonable assurance that the 

facility can be operated without endangering the health and safety of the public. 

Hydro Res., Inc. (P.O. Box 777, Crownpoint, New Mexico 87313), CLI-06-1, 63 NRC 

1, 4 (2006) (citing Consol. Edison Co. of New York (Indian Point Nuclear Generating 

Unit 2), CLI-74-23, 7 AEC 947, 951-52 (1974)). 

A Licensing Board has delegated to the Staff responsibility for reviewing and 

approving changes to a licensee’s plan for the design and operation of an onsite 

waste burial project. The Board believed that such a delegation was appropriate 

where the Board had developed a full and complete hearing record, resolved every 

litigated issue, and reviewed the project plan which the licensee had developed, at 

the Board’s request, to summarize and consolidate its testimony during the hearing 

concerning the project. Toledo Edison Co. (Davis-Besse Nuclear Power Station, 

Unit 1), LBP-87-11, 25 NRC 287, 298 (1987). 

The mere pendency of confirmatory Staff analyses regarding litigated issues does 

not automatically foreclose Board resolution of those issues. The question is 

whether the Board has adequate information, prior to the completion of the Staff 

analyses, on which to base its decision. Long Island Lighting Co. (Shoreham 

Nuclear Power Station, Unit 1), ALAB-788, 20 NRC 1102, 1171 (1984). 

In a materials licensing proceeding, the Commission rejected an intervenor’s 

argument that because the licensee might not adhere to the methodology in its 

license, the intervenor should therefore have rights to an adjudicatory hearing on 

future determinations made in connection with particular license conditions. This 

argument would transmogrify license proceedings into open-ended enforcement 

actions; Licensing Boards would be required to keep license proceedings open for 

the entire life of the license so intervenors would have a continuing, unrestricted 

opportunity to raise charges of noncompliance. If the intervenors subsequently 

have cause to believe that the licensee is not following the relevant procedures, they 

can petition the Staff for enforcement action. Hydro Res., Inc. (P.O. Box 777, 

Crownpoint, New Mexico 87313), CLI-06-1, 63 NRC 1, 5-6 (2006). 
GENERAL MATTERS 110 JUNE 2011 

In order to conduct an expeditious hearing, without having to wait for the completion 

of confirmatory tests by a licensee and analysis of the test results by the Staff, a 

Licensing Board may decide to conduct a hearing on all matters ripe for adjudication 

and to grant an intervenor an opportunity to request an additional hearing limited to 

matters, within the scope of the admitted contentions, which arise subsequent to the 

closing of the record. The intervenor must be given timely access to all pertinent 

information developed by the licensee and the Staff after the close of the hearing 

with respect to the confirmatory tests. General Public Utilities Nuclear Corp. (Three 

Mile Island Nuclear Station, Unit 1), LBP-86-14, 23 NRC 553, 560-61 (1986), citing

Commonwealth Edison Co. (Zion Station, Units 1 & 2), LBP-73-35, 6 AEC 861, 865 

(1973), aff’d, ALAB-226, 8 AEC 381, 400 (1974). Although the intervenor will not be 

required to meet the usual standards for reopening a record, the intervenor must 

indicate in the motion to reopen that the new test data and analyses are so 

significant as to change the result of the prior hearing. General Public Utilities 

Nuclear Corp. (Three Mile Island Nuclear Station, Unit 1), LBP-86-17, 23 NRC 792, 

797 (1986). 

The Licensing Board must determine that the analyses remaining to be performed 

will merely confirm earlier Staff findings regarding the adequacy of the plant. 

Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 & 2), 

LBP-85-32, 22 NRC 434, 436 & n.2, 440 (1985), citing Consolidated Edison Co.

(Indian Point Nuclear Generating Unit 2), CLI-74-23, 7 AEC 947, 951 (1974), which 

cites, Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 2), CLI-73-4, 

6 AEC 6 (1973) (the mechanism of posthearing findings is not to be used to provide 

a reasonable assurance that a facility can be operated without endangering the 

health and safety of the public); Metropolitan Edison Co. (Three Mile Island Nuclear 

Station, Unit 1), ALAB-729, 17 NRC 814 (1983) (posthearing procedures may be 

used for confirmatory tests); Pacific Gas and Electric Co. (Diablo Canyon Nuclear 

Power Plant, Units 1 & 2), ALAB-811, 21 NRC 1622 (1985) (once a method of 

evaluation had been used to confirm that one of two virtually identical units had met 

the standard of a reasonable assurance of safety, it was acceptable to exclude from 

hearings the use of the same evaluation method to confirm the adequacy of the 

second unit). Staff analyses which are more than merely confirmatory because a 

further evaluation is necessary to demonstrate compliance with regulatory 

requirements in light of negative findings of the Licensing Board regarding certain 

equipment and that relate to contested issues should be retained with the Board’s 

jurisdiction until a satisfactory evaluation is produced. Cleveland Electric 

Illuminating Co. (Perry Nuclear Power Plant, Units 1& 2), ALAB-841, 24 NRC 64, 

79-80 (1986). 

Posthearing issue resolution involving confirmatory analysis by the Staff is 

acceptable with respect to soil cement testing when the Staff action involves 

verification only. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage 

Installation), LBP-03-8, 57 NRC 293, 328-329 (2003). 

At the same time, it is entirely appropriate for the Staff to resolve matters not at 

issue in an operating license or amendment proceeding. In such proceedings, once 

a Licensing Board has resolved any contested issues and any issues which it raises 

sua sponte, the decision as to all other matters which need be considered prior to 

issuance of an operating license is the responsibility of the Staff alone. 

Consolidated Edison Co. (Indian Point Nuclear Generating Units 1, 2 & 3), 
JUNE 2011 GENERAL MATTERS 111 

ALAB-319, 3 NRC 188, 190 (1976); Portland General Electric Co. (Trojan Nuclear 

Plant), ALAB-181, 7 AEC 207, 209 n.7 (1974); Public Service Co. of New 

Hampshire (Seabrook Station, Units 1 & 2), ALAB-854, 24 NRC 783, 790-91 (1986). 

The Licensing Board is neither required nor expected to pass upon all items which 

the Staff must consider before the operating license is issued. Consolidated Edison 

Co. (Indian Point Nuclear Generating Units 1, 2 & 3), ALAB-319, 3 NRC 188, 190 

(1976). 

The Commission will not be drawn into contractual disputes between regulated 

parties, absent a concern for the public health and safety or the common defense 

and security or a need to enforce its orders, licenses, or regulations. CBS 

Corporation (Waltz Mill Facility), CLI-07-15, 65 NRC 221, 234 (2007). 

6.17.2 Status of Staff Regulatory Guides 

(See Section 6.21.3) 

6.17.3 Status of Staff Position and Working Papers 

Staff position papers have no legal significance for any regulatory purpose and are 

entitled to less weight than an adopted regulatory guide. Southern California Edison 

Co. (San Onofre Nuclear Generating Station, Units 2 & 3), ALAB-268, 1 NRC 383 

(1975); Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), 

ALAB-224, 8 AEC 244 (1974). Similarly, an NRC Staff working paper or draft report 

neither adopted nor sanctioned by the Commission itself has no legal significance for 

any NRC regulatory purpose. Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), 

ALAB-355, 4 NRC 397 (1976); Consolidated Edison Co. (Indian Point Nuclear 

Generating Unit 2), ALAB-209, 7 AEC 971, 973 (1974). But see Vermont Yankee 

Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), LBP-87-17, 25 NRC 

838, 857-60 (1987) (the Licensing Board admitted contentions that questioned the 

sufficiency of an applicant’s responses to an NRC Staff guidance document which 

provided guidelines for Staff review of spent fuel pool modification applications), aff’d in 

part and rev’d in part, ALAB-869, 26 NRC 13, 34 (1987), reconsid. denied, ALAB-876, 

26 NRC 277 (1987). 

Nonconformance with regulatory guides or Staff positions does not mean that General 

Design Criteria (GDC) are not met; applicants are free to select other methods to 

comply with the GDC. The GDC are intended to provide engineering goals rather than 

precise tests by which reactor safety can be gauged. Petition for Emergency & 

Remedial Action, CLI-78-6, 7 NRC 400, 406 (1978). 

6.17.4 Status of Standard Review Plan 

Where the applicant used criteria “required” by the Staff’s Standard Review Plan 

(NUREG-75/087, § 2.2.3) in determining the probability of occurrence of a postulated 

accident, it is not legitimate for the Staff to base its position on a denigration of the 

process which the Staff itself had promulgated. Public Service Electric & Gas (Hope 

Creek Generating Station, Units 1 & 2), ALAB-518, 9 NRC 14, 29 (1979). 
GENERAL MATTERS 112 JUNE 2011 

6.17.5 Conduct of NRC Employees 

(RESERVED) 

6.18 Orders of Licensing Boards and Presiding Officers

6.18.1 Compliance with Board Orders 

Compliance with orders of an NRC adjudicatory board is mandatory unless such 

compliance is excused for good cause. Thus, a party may not disregard a board’s 

direction to file a memorandum without seeking leave of the board after setting forth 

good cause for requesting such relief. Public Service Co. of New Hampshire

(Seabrook Station, Units 1 & 2), ALAB-488, 8 NRC 187, 190-91 (1978). Similarly, a 

party seeking to be excused from participation in a prehearing conference ordered by 

the board should present its justification in a request presented before the date of the 

conference. ALAB-488, 8 NRC at 191. A Licensing Board may deny an intervention 

petition as a sanction for the petitioner’s failure to comply with a Board order to appear 

at a prehearing conference. Arizona Public Service Co. (Palo Verde Nuclear 

Generating Station, Units 1, 2 & 3), LBP-91-13, 33 NRC 259, 262-63 (1991). 

A Licensing Board is not expected to sit idly by when parties refuse to comply with its 

orders. Pursuant to 10 C.F.R. § 2.319 (formerly § 2.718), a Licensing Board has the 

power and the duty to maintain order, to take appropriate action to avoid delay and to 

regulate the course of the hearing and the conduct of the participants. Furthermore, 

pursuant to 10 C.F.R. § 2.320 (formerly § 2.707), the refusal of a party to comply with a 

Board order relating to its appearance at a proceeding constitutes a default for which a 

Licensing Board may make such orders in regard to the failure as are just. Long Island 

Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-115, 16 NRC 1923, 

1928 (1982). 

A party may not simply refuse to comply with a direct Board order, even if it believes 

the Board decision to have been based upon an erroneous interpretation of the law. A 

Licensing Board is to be accorded the same respect as a court of law. Long Island 

Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-115, 16 NRC 1923, 

1930 & n.5 (1982). See 10 C.F.R. § 2.314(a) (formerly § 2.713(a)). 

When parties, for whatever reason, fail to respond or otherwise comply with Board 

requests, the Board has the authority to take appropriate action in accordance with its 

power and duty to maintain order, to avoid delay, and to regulate the course of the 

hearing and the conduct of the participants. Washington Public Power Supply System

(Washington Nuclear Project No. 1), LBP-00-18, 52 NRC 9, 13 (2000) (citing Private 

Fuel Storage, L.L.C. (Independent Fuel Storage Installation), LBP-00-5, 51 NRC 64, 67 

(2000) and Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP82-115, 16 NRC 1923, 1928 (1982)). 

When an issue is admitted into a proceeding in an order of the Board, it becomes part 

of the law of that case. Parties may use the prior history of a case to interpret 

ambiguities in a Board order, but no party may challenge the precedential authority of a 

Board’s decision other than in a timely motion for reconsideration. Cleveland Electric 
JUNE 2011 GENERAL MATTERS 113 

Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), LBP-83-18, 17 NRC 501, 

504 (1983). 

Under 10 C.F.R. § 2.314 (formerly § 2.707), Licensing Boards have broad discretion to 

sanction willful, prejudicial, and bad-faith behavior. Private Fuel Storage, L.L.C.

(Independent Spent Fuel Storage Installation), CLI-01-1, 53 NRC 1, 7 (2001), citing

Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-902, 

28 NRC 423 (1988), review denied, CLI-88-11, 28 NRC 603 (1988). 

6.19 Precedent and Adherence to Past Agency Practice

Legal determinations made on appeal in a case are controlling precedent, becoming the 

“law of the case.” A prior decision should be followed unless (1) the decision is clearly 

erroneous and its enforcement would work a manifest injustice, (2) intervening controlling 

authority makes reconsideration appropriate, or (3) substantially different evidence was 

adduced at a subsequent trial. Hydro Resources, Inc., CLI-06-11, 63 NRC 483, 488-89 

(2006). 

Application of the “law of the case” doctrine is a matter of discretion. When an 

administrative tribunal finds that its declared law is wrong and would work an injustice, it 

may apply a different rule of law in the interests of settling the case before it correctly. 

Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), 

ALAB-493, 8 NRC 253, 260 (1978). 

That the law of the case doctrine does not apply in a particular circumstance does not 

mean that the prior decision is wholly without precedential value, only that it is limited to its 

power to persuade. Hydro Res., Inc., LBP-06-1, 63 NRC 41, 59 (2006), aff’d, CLI-06-14, 

63 NRC 510 (2006). 

An Appeal Board does not give stare decisis effect to affirmation of Licensing Board 

conclusions on legal issues not brought to it by way of an appeal. Duke Power Co.

(Cherokee Nuclear Station, Units 1, 2 & 3), ALAB-482, 7 NRC 979, 981 n.4 (1978). 

A Licensing Board is required to give stare decisis effect only to an issue of law which was 

heard and decided in a prior proceeding. Public Service Co. of New Hampshire

(Seabrook Station, Units 1 & 2), ALAB-924, 30 NRC 331, 358-59 & n.112 (1989), citing

EEOC v. Trabucco, 791 F.2d 1, 4 (1st Cir. 1986), and 1B Moore’s Federal Practice

0.402[2], at 30. 

A determination of fact in an adjudicatory proceeding which is necessarily grounded 

wholly in a non-adversary presentation is not entitled to be accorded generic effect, even 

if the determination relates to a seemingly generic matter rather than to some specific 

aspect of the facility in question. Washington Public Power Supply System (WPPSS 

Nuclear Projects Nos. 3 & 5), ALAB-485, 7 NRC 986, 988 (1978). 

Because the law does not require consistency in treatment of two parties in different 

circumstances, the Staff does not violate principles of fairness in considering Class 9 

accidents in EISs for floating but not land-based plants. The Staff need only provide a 

reasonable explanation why the differences justify a departure from past agency practice. 

Offshore Power Systems (Floating Nuclear Power Plants), ALAB-489, 8 NRC 194, 222 

(1978). 
GENERAL MATTERS 114 JUNE 2011 

6.20 Pre-Construction Permit Activities

The Commission adopted in 2007 significant changes to 10 C.F.R. 50.10 and related 

regulations governing the definition of construction and the LWA process. See

72 Fed. Reg. 57,416 (Oct. 9, 2007). As part of this rulemaking, the special definition of 

construction in former § 50.10(c) applicable to nuclear power reactors has been removed. 

The former § 50.10(b) definition of construction has been slightly modified, redesignated 

as paragraph (a), and as reconstituted now applies to all production and utilization 

facilities. An LWA is now required only for certain foundation work, including the driving of 

piles, placement of engineered backfill, and the construction of structural foundations. 

The environmental impacts review necessary for issuance of an LWA may be limited, at 

the applicant’s request, to the environmental impacts associated with the activities to be 

conducted under the LWA. Much of the earlier NRC case law on LWA applies in the 

context of the prohibition on construction as defined in § 50.10(c), and will not be directly 

applicable to LWAs under the revised LWA rule. 

The Commission’s regulations proscribe environmentally significant construction activities 

associated with a nuclear plant, including activities beyond the site boundary, without prior 

Commission approval. A “site” in this context includes land where the proposed plant is to 

be located and its necessary accouterments, including transmission lines and access 

ways. 10 C.F.R. § 50.10(c), which broadly prohibits any substantial action which would 

adversely affect the environment of the site prior to Commission approval, can clearly be 

interpreted to bar, for example, road and railway construction leading to the site, at least 

where substantial clearing and grading are involved. Kansas Gas & Electric Co. (Wolf 

Creek Nuclear Generating Station, Unit 1), CLI-77-1, 5 NRC 1 (1977). The Commission 

may authorize certain site-related work prior to issuance of a construction permit pursuant 

to 10 C.F.R. § 50.10(c) and (e). 

The LWA procedure under 10 C.F.R. § 50.10(e)(1) and (2) and the 10 C.F.R. § 50.12(b) 

exemption procedure are independent avenues for applicants to begin site preparation in 

advance of receiving a construction permit. DOE (Clinch River Breeder Reactor Plant), 

CLI-82-23, 16 NRC 412, 423 (1982). 

A request for an exemption from any Commission regulation in 10 C.F.R. Part 50, 

including the general prohibition on commencement of construction in 

10 C.F.R. § 50.10(c), may be granted under 10 C.F.R. § 50.12(a). DOE (Clinch River 

Breeder Reactor Plant), CLI-82-23, 16 NRC 412, 418 (1982). 

The Commission may apply 10 C.F.R. § 50.12 to a first of a kind project. There is no 

indication in 10 C.F.R. § 50.12 that exemptions for conduct of site preparation activities 

are to be confined to typical, commercial light water nuclear power reactors. Commission 

practice has been to consider each exemption request on a case-by-case basis under the 

applicable criteria in the regulations. There is no indication in the regulations or past 

practice that an exemption can be granted only if an LWA-1 can also be granted or only if 

justified to meet electrical energy needs. DOE (Clinch River Breeder Reactor Plant), 

CLI-82-23, 16 NRC 412, 419 (1982). 

In determining whether to grant an exemption pursuant to 10 C.F.R. § 50.12 to allow 

pre-permit activities, the Commission considers the totality of the circumstances and 

evaluates the exigency of the circumstances in that overall determination. Exigent 
JUNE 2011 GENERAL MATTERS 115 

circumstances have been found where: (1) further delay would deny the public currently 

needed benefits that would have been provided by timely completion of the facility but 

were delayed due to external factors, and would also result in additional otherwise 

avoidable costs; and (2) no alternative relief has been granted (in part) or is imminent. 

The Commission will weigh the exigent circumstances offered to justify an exemption 

against the adverse environmental impacts associated with the proposed activities. 

Where the environmental impacts of the proposed activities are insignificant, but the 

potential adverse consequences of delay may be severe and an exemption will litigate the 

effects of that delay, the case is strong for granting an exemption that will preserve the 

option of realizing those benefits in spite of uncertainties in the need for prompt action. 

DOE (Clinch River Breeder Reactor Plant), CLI-83-1, 17 NRC 1, 4-6 (1983), citing

Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 & 4), 

CLI-74-22, 7 AEC 938 (1974); Kansas Gas & Electric Co. (Wolf Creek Generating Station, 

Unit 1), CLI-76-20, 4 NRC 476 (1976); Washington Public Power Supply System (WPPSS 

Nuclear Project Nos. 3 & 5), CLI-77-11, 5 NRC 719 (1977). 

Use of the exemption authority under 10 C.F.R. § 50.12 has been made available by the 

Commission only in the presence of exceptional circumstances. A finding of exceptional 

circumstances is a discretionary administrative finding which governs the availability of an 

exemption. A reasoned exercise of such discretion should take into account the equities 

of each situation. These equities include the stage of the facility’s life, any financial or 

economic hardships, any internal inconsistencies in the regulation, the applicant’s good 

faith effort to comply with the regulation from which the exemption is sought, the public 

interest in adherence to the Commission’s regulations, and the safety significance of the 

issues involved. These equities do not, however, apply to the requisite findings on public 

health and safety and common defense and security. Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), CLI-84-8, 19 NRC 1154, 1156 n.3 (1984); 

Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-84-45, 20 NRC 

1343, 1376-1377 (1984). The costs of unusually heavy and protracted litigation may be 

considered in evaluating financial or economic hardships as an equity in assessing the 

propriety of an exemption. Long Island Lighting Co. (Shoreham Nuclear Power Station, 

Unit 1), LBP-84-45, 20 NRC 1343, 1378-1379 (1984). 

The public interest criterion for granting an exemption from 10 C.F.R. § 50.10 under 

10 C.F.R. § 50.12(b) is a stringent one: exemptions of this sort are to be granted 

sparingly and only in extraordinary circumstances. United States Dep’t of Energy, et al.

(Clinch River Breeder Reactor Plant), CLI-82-23, 16 NRC 412, 426 (1982), citing

Washington Public Power Supply System (WPPSS Nuclear Power Projects Nos. 3 & 5), 

CLI-77-11, 5 NRC 719 (1977). 

6.20.1 Pre-LWA Activity 

Under 10 C.F.R. § 50.10, as revised by the Commission (72 Fed. Reg. 57,416 

(Oct. 9, 2007)), the NRC no longer asserts jurisdiction over the pre-LWA activities 

which NRC defined as “construction” under former 10 C.F.R. § 50.10(c), and any entity 

may perform those pre-construction activities without NRC approval. Accordingly, the 

de minimis standard, see, e.g., Washington Public Power Supply System (WPPS 

Nuclear Projects 3 and 5), CLI-77-11, 5 NRC 719 (1977), is no longer relevant to 

proceedings involving the construction of a new utilization and production facility. 
GENERAL MATTERS 116 JUNE 2011 

6.20.2 Limited Work Authorization 

In those situations where the Commission does approve offsite (through an LWA or 

CP) or pre-permit (through an LWA) activities, conditions may be imposed to minimize 

adverse impacts. Kansas Gas & Electric Co. (Wolf Creek Nuclear Generating Station, 

Unit 1), CLI-77-1, 5 NRC 1 (1977). 

An LWA allows preliminary construction work to be undertaken at the applicant’s risk, 

pending completion of later hearings covering radiological health and safety issues. 

United States Dep’t of Energy et al. (Clinch River Breeder Reactor Plant), ALAB-688, 

16 NRC 471, 473 n.1 (1982) (citing 10 C.F.R. § 50.10(e)(1)); Public Service Co. of 

Oklahoma (Black Fox Station, Units 1 & 2), ALAB-573, 10 NRC 775, 778 (1979). 

Applicants are not required to have every permit in hand before an LWA can be 

granted. Public Service Co. of Oklahoma (Black Fox Station, Units 1 & 2), LBP-78-26, 

8 NRC 102, 123, 129 (1978). 

The Board may conduct a separate hearing and issue a partial decision on issues 

pursuant to NEPA, general site suitability issues specified by 10 C.F.R. § 50.10(e), and 

certain other possible issues for an LWA. DOE (Clinch River Breeder Reactor Plant), 

LBP-83-8, 17 NRC 158, 161 (1983), vacated as moot, ALAB-755, 18 NRC 1337 

(1983). 

Although the LWA and construction permit aspects of the case are simply separate 

phases of the same proceeding, Licensing Boards have the authority to regulate the 

course of the proceeding and limit an intervenor’s participation to issues in which it is 

interested. DOE (Clinch River Breeder Reactor Plant), ALAB-761, 19 NRC 487, 492 

(1984) (citing 10 C.F.R. § 2.319 (formerly § 2.718)). 

6.20.2.1 LWA Status Pending Remand Proceedings 

It has been held that, where a partial initial decision on a construction permit is 

remanded to the Licensing Board for further consideration, an outstanding LWA may 

remain in effect pending resolution of the construction permit issues provided that 

little consequential environmental damage will occur in the interim. Florida Power & 

Light Co. (St. Lucie Nuclear Power Plant, Unit 2), ALAB-335, 3 NRC 830 (1976). 

On appeal of this decision, however, the Court of Appeals stayed the effectiveness 

of the LWA pending alternate site consideration by the Licensing Board on the 

grounds that it is anomalous to allow construction to take place at one site while the 

Board is holding further hearings on other sites. Hodder v. NRC, 589 F.2d 1115 

(D.C. Cir. 1978). 

6.21 Regulations

The proper test of the validity of a regulation is whether its normal and fair interpretation 

will deny persons their statutory rights. Duke Power Co. (Catawba Nuclear Station, 

Units 1 & 2), CLI-83-19, 17 NRC 1041, 1047 (1983), citing American Trucking Association 

v. United States, 627 F.2d 1313, 1318-19 (D.C. Cir. 1980). 
JUNE 2011 GENERAL MATTERS 117 

6.21.1 Compliance with Regulations 

All participants in NRC adjudicatory proceedings, whether lawyers or laymen, have an 

obligation to familiarize themselves with the NRC Rules of Practice. The fact that a 

party may be a newcomer to NRC proceedings will not excuse that party’s 

noncompliance with the rules. Boston Edison Co. (Pilgrim Nuclear Power Station), 

ALAB-816, 22 NRC 461, 467 n.24 (1985), citing Duke Power Co. (Perkins Nuclear 

Station, Units 1, 2, & 3), ALAB-615, 12 NRC 350, 352 (1980); Houston Lighting & 

Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-609, 12 NRC 172, 

173 n.1 (1980). 

Applicants and licensees must, of course, comply with the Commission’s regulations, 

but the Staff may not compel an applicant or licensee to do more than the regulations 

require without a hearing. Vermont Yankee Nuclear Power Corp. (Vermont Yankee 

Nuclear Power Station), ALAB-194, 7 AEC 431, 445, 447 n.32 (1974). 

The power to grant exemptions from the regulations has not been delegated to 

Licensing Boards, and such Boards, therefore, lack the authority to grant exemptions. 

Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 & 3), 

LBP-77-35, 5 NRC 1290, 1291 (1977). 

6.21.2 Commission Policy Statements 

A Commission policy statement is binding upon the Commission’s adjudicatory boards. 

Mississippi Power & Light Co. (Grand Gulf Nuclear Station, Units 1 & 2), ALAB-704, 

16 NRC 1725, 1732 n.9 (1982), citing Northern States Power Co. (Prairie Island 

Nuclear Generating Plant, Units 1 & 2), ALAB-455, 7 NRC 41, 51 (1978), remanded on 

other grounds sub nom. Minnesota v. NRC, 602 F.2d 412 (D.C. Cir. 1979); 

Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), ALAB-819, 

22 NRC 681, 695 (1985), citing Potomac Electric Power Co. (Douglas Point Nuclear 

Generating Station, Units 1 & 2), ALAB-218, 8 AEC 79, 82-83 (1974). 

6.21.3 Regulatory Guides and Other Guidance Documents 

Staff regulatory guides are not regulations and do not have the force of regulations. 

When challenged by an applicant or licensee, they are to be regarded merely as the 

views of one party, although they are entitled to considerable prima facie weight. See 

Section 6.16.2 and cases cited therein. Consumers Power Co. (Big Rock Point 

Nuclear Plant), ALAB-725, 17 NRC 562, 568 and n.10 (1983) 

Guidance documents, such as NUREGs or the Standard Review Plan, do not have the 

force of legally binding regulations. Private Fuel Storage, L.L.C. (Independent Spent 

Fuel Storage Installation), CLI-01-22, 54 NRC 255, 264 (2001). Where the NRC has 

developed guidance documents assisting in compliance with applicable regulations, 

they are entitled to special weight. Private Fuel Storage, L.L.C. (Independent Spent 

Fuel Storage Installation), CLI-01-22, 54 NRC 255, 264 (2001). See also Yankee 

Atomic Electric Co. (Yankee Nuclear Power Station), CLI-05-15, 61 NRC 365, 375 n.26 

(2005) (discussing the contents of a Standard Review Plan). Guidance documents 

such as NUREGs do not purport to establish enforceable requirements, so 

nonconformance with such guides does not equate to noncompliance. While an NRC 

guidance document sets forth one way in which compliance might be obtained, other 
GENERAL MATTERS 118 JUNE 2011 

approaches to such compliance might prove just as acceptable. FMRI, Inc. [formerly 

Fansteel, Inc.], LBP-04-8, 59 NRC 266, 270 (2004). 

A regulatory guide, however, only presents the Staff’s view of how to comply with the 

regulatory requirements. Such a guide is advisory, not obligatory and, as the guide 

itself states at the bottom of the first page: “Regulatory Guides are not substitutes for 

regulations, and compliance with them is not required.” Louisiana Energy Services

(Claiborne Enrichment Center), LBP-96-7, 43 NRC 142 (1996). 

Staff documents (NUREGs) are intended as guidance, compliance with which is not 

required. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), 

LBP-03-4, 57 NRC 69, 92 (2003), review declined, CLI-03-5, 57 NRC 279 (2003). 

See also Duke Energy Corp. (Catawba Nuclear Station, Units 1 & 2), CLI-04-29, 

60 NRC 417, 424 (2004), reconsid. denied, CLI-04-37, 60 NRC 646 (2004) (“Guidance 

documents are, by nature, only advisory. They need not apply in all situations and do 

not themselves impose legal requirements on licensees.”). 

In the absence of other evidence, adherence to regulatory guidance may be sufficient 

to demonstrate compliance with regulatory requirements. Metropolitan Edison Co.

(Three Mile Island Nuclear Station, Unit 1), ALAB-698, 16 NRC 1290, 1299 (1982), 

rev’d in part on other grounds, CLI-83-22, 18 NRC 299 (1983); see Petition for 

Emergency and Remedial Action, CLI-78-6, 7 NRC 400, 406-407 (1978); Long Island 

Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-22, 17 NRC 608, 616 

(1983). Generally speaking, however, such guidance is treated simply as evidence of 

legitimate means for complying with regulatory requirements, and the Staff is required 

to demonstrate the validity of its guidance if it is called into question during the course 

of litigation. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), 

ALAB-698, 16 NRC 1290, 1299 (1982), rev’d in part on other grounds, CLI-83-22, 

18 NRC 299 (1983); see Vermont Yankee Nuclear Power Corp. (Vermont Yankee 

Nuclear Power Station), CLI-74-40, 8 AEC 809, 811 (1974); Philadelphia Electric Co.

(Limerick Generating Station, Units 1 & 2), ALAB-819, 22 NRC 681, 737 (1985). 

Interpretation from NRC guidance documents and history “may not conflict with the 

plain meaning of the wording used in [a] regulation,” which in the end “of course must 

prevail.” See Long Island Lighting Co. (Shoreham Nuclear Station, Unit 1), ALAB-900, 

28 NRC 275, 288-90 (1988), review declined, CLI-88-11, 28 NRC 603 (1988); 

Graystar, Inc., LBP-01-7, 53 NRC 168, 187 (2001). 

Nonconformance with regulatory guides or Staff positions does not mean that the GDC 

are not met; applicants are free to select other methods to comply with the GDC. The 

GDC are intended to provide engineering goals rather than precise tests by which 

reactor safety can be gauged. Petition for Emergency and Remedial Action, CLI-78-6, 

7 NRC 400, 406 (1978). 

A licensee is free either to rely on NUREGs and regulatory guides or to take alternative 

approaches to meet its legal requirements (as long as those approaches have the 

approval of the Commission or NRC Staff). Curators of the University of Missouri, 

CLI-95-8, 41 NRC 386, 398 (1995). Methods and solutions different from those set out 

in the guides will be acceptable if they provide a basis for the findings requisite to the 

issuance or continuance of a permit or license by the Commission. Long Island 

Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-22, 17 NRC 608, 616 
JUNE 2011 GENERAL MATTERS 119 

(1983), citing Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), 

ALAB-698, 16 NRC 1290, 1299 (1982), rev’d in part on other grounds, CLI-83-22, 

18 NRC 299 (1983). 

While it is clear that regulatory guides are not regulations, are not entitled to be treated 

as such, need not be followed by applicants, and do not purport to represent the only 

satisfactory method of meeting a specific regulatory requirement, they do provide 

guidance as to acceptable modes of conforming to specific regulatory requirements. 

Gulf States Utilities Co. (River Bend Station, Units 1 & 2), ALAB-444, 6 NRC 760 

(1977); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-788, 

20 NRC 1102, 1161, 1169 (1984). See Long Island Lighting Co. (Shoreham Nuclear 

Power Station, Unit 1), LBP-91-39, 34 NRC 273, 280-81 (1991). Indeed, the 

Commission itself has indicated that conformance with regulatory guides is likely to 

result in compliance with specific regulatory requirements, though nonconformance 

with such guides does not mean noncompliance with the regulations. Petition for 

Emergency & Remedial Action, CLI-78-6, 7 NRC 400, 406-07 (1978). See also

Wrangler Laboratories et al., LBP-89-39, 30 NRC 746, 756-57, 759 (1989), rev’d and 

remanded on other grounds, ALAB-951, 33 NRC 505 (1991). 

When determining issues of public health and safety, the Commission has discretion to 

use the best technical guidance available, including any pertinent NUREGs and 

regulatory guides, as long as they are germane to the issues then pending before the 

Commission. However, the Commission’s decision to look to such documents for 

technical guidance in no way contradicts the Commission’s ruling that NUREGs and 

regulatory guides are advisory by nature and do not themselves impose legal 

requirements on either the Commission or its licensees. Curators of the University of 

Missouri, CLI-95-8, 41 NRC 386, 397 (1995). 

The fact that the emergency planning regulations had not yet gone into effect when the 

applicant filed its applications did not preclude the Commission from seeking technical 

guidance from a NUREG that provided the scientific foundation for those regulations. 

Curators of the University of Missouri, CLI-95-8, 41 NRC 386, 397-98 (1995). 

Licensees can be required to show they have taken steps to provide equivalent or 

better measures than called for in regulatory guides if they do not, in fact, comply with 

the specific requirements set forth in the guides. Consolidated Edison Co. (Indian 

Point Nuclear Generating Unit 2) and Power Authority of the State of N.Y. (Indian Point 

Nuclear Generating Unit 3), LBP-82-105, 16 NRC 1629, 1631 (1982). 

The criteria described in NUREG-0654 regarding emergency plans, referenced in NRC 

regulations, were intended to serve solely as regulatory guidance, not regulatory 

requirements. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), 

LBP-83-22, 17 NRC 608, 616 (1983), citing Metropolitan Edison Co. (Three Mile Island 

Nuclear Station, Unit 1), ALAB-698, 16 NRC 1290, 1298-99 (1982), rev’d in part on 

other grounds, CLI-83-22, 18 NRC 299 (1983). See Philadelphia Electric Co. (Limerick 

Generating Station, Units 1 & 2), ALAB-819, 22 NRC 681, 710 (1985); Carolina Power 

and Light Co. (Shearon Harris Nuclear Power Plant), LBP-86-11, 23 NRC 294, 367-68 

(1986); Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), ALAB-836, 

23 NRC 479, 487 (1986); Philadelphia Electric Co. (Limerick Generating Station, Units 

1 & 2), ALAB-845, 24 NRC 220, 238 (1986); Carolina Power & Light Co. (Shearon 

Harris Nuclear Power Plant), ALAB-852, 24 NRC 532, 544-45 (1986); Long Island 
GENERAL MATTERS 120 JUNE 2011 

Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-900, 28 NRC 275, 290-

91 (1988). 

In the absence of other evidence, adherence to NUREG-0654 may be sufficient to 

demonstrate compliance with the regulatory requirements of 10 C.F.R. § 50.47(b). 

However, such adherence is not required, because regulatory guides are not intended 

to serve as substitutes for regulations. Long Island Lighting Co. (Shoreham Nuclear 

Power Station, Unit 1), LBP-83-22, 17 NRC 608, 616 (1983), citing Metropolitan Edison 

Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-698, 16 NRC 1290, 1298-99 

(1982), rev’d in part on other grounds, CLI-83-22, 18 NRC 299 (1983). 

Methods and solutions different from those set out in the guides will be acceptable if 

they provide a basis for the findings requisite to the issuance or continuance of a 

permit or license by the Commission. Long Island Lighting Co. (Shoreham Nuclear 

Power Station, Unit 1), LBP-83-22, 17 NRC 608, 616 (1983), citing Metropolitan Edison 

Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-698, 16 NRC 1290, 1299 (1982), 

rev’d in part on other grounds, CLI-83-22, 18 NRC 299 (1983); Long Island Lighting 

Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-788, 20 NRC 1102, 1161 (1984). 

6.21.4 Challenges to Regulations 

In Baltimore Gas & Electric Co. (Calvert Cliffs Nuclear Power Plant, Units 1 & 2), 

4 AEC 243, 244 (1969), the Commission recognized the general principle that 

regulations are not subject to amendment in individual adjudicatory proceedings. 

Under that ruling, now supplanted by 10 C.F.R. § 2.335 (formerly § 2.758), challenges 

to the regulations would be permitted only where application of the rule or regulation 

would not serve the purposes for which the rule or regulation was adopted. Cf. Hydro 

Res., Inc., LBP-06-1, 63 NRC 41, 59-60 (2006), aff’d, CLI-06-14, 63 NRC 510 (2006) 

(A Presiding Officer lacks authority to adopt a “policy” that invalidates a Commission 

regulation; intervenors may not use a licensing proceeding in essence to rewrite 

Commission regulations) (citing Balt. Gas & Elec., 4 AEC at 244)); Dominion Nuclear 

Connecticut, Inc. (Millstone Nuclear Power Station, Unit 3), CLI-08-17, 68 NRC 231, 

233 (2008). 

The Commission directed Licensing Boards to certify the question of the validity of any 

challenge to it prior to rendering any initial decision. Thus, the Commission adheres to 

the fundamental principle of administrative law that its rules are not subject to collateral 

attack in adjudicatory proceedings. Carolina Power & Light Co. (Shearon Harris 

Nuclear Power Plant, Units 1 & 2), LBP-82-119A, 16 NRC 2069, 2073 (1982). 

No challenge of any kind is permitted, in an adjudicatory proceeding, as to a regulation 

that is the subject of ongoing rulemaking. Wisconsin Electric Power Co. (Point Beach 

Nuclear Plant, Unit 2), ALAB-78, 5 AEC 319 (1972); Vermont Yankee Nuclear Power 

Corp. (Vermont Yankee Nuclear Power Station), ALAB-57, 4 AEC 946 (1972). In such 

a situation, the appropriate forum for deciding a challenge is the rulemaking proceeding 

itself. Union Electric Co. (Callaway Plant, Units 1 & 2), ALAB-352, 4 NRC 371 (1976). 

The assertion of a claim in an adjudicatory proceeding that a regulation is invalid is 

barred as a matter of law as an attack upon a regulation of the Commission. Pacific 

Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-410, 

5 NRC 1398, 1402 (1977); Metropolitan Edison Co. (Three Mile Island Nuclear Station, 
JUNE 2011 GENERAL MATTERS 121 

Unit 2), ALAB-456, 7 NRC 63, 65 (1978); Public Service Co. of New Hampshire

(Seabrook Station, Units 1 & 2), LBP-86-25, 24 NRC 141, 144 (1986); American 

Nuclear Corp. (Revision of Orders to Modify Source Materials Licenses), CLI-86-23, 

24 NRC 704, 709-710 (1986). Consequently, under current regulations, there can be 

no challenge of any kind by discovery, proof, argument, or other means except in 

accord with 10 C.F.R. § 2.335 (formerly § 2.758). 

A contention based on a challenge to Table S-3 of 10 C.F.R. § 51.51 constituted an 

impermissible attack on a Commission regulation and the Board should not have 

admitted it. Tennessee Valley Authority (Bellefonte Nuclear Power Plant, Units 3 & 4), 

CLI-09-3, 69 NRC 68, 75 (2009). 

Under 10 C.F.R. 2.335 (formerly 2.758), the regulation must be challenged by way of a 

petition requesting a waiver or exception to the regulation on the sole ground of 

“special circumstances” (i.e., because of special circumstances with respect to the 

subject matter of the particular proceeding, application of the regulation would not 

serve the purposes for which the regulation was adopted). 10 C.F.R. § 2.335 (formerly 

§ 2.758(b)); Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), 

LBP-86-25, 24 NRC 141, 145 (1986); Public Service Co. of New Hampshire (Seabrook 

Station, Units 1 & 2), ALAB-895, 28 NRC 7, 16 (1988); Public Service Co. of New 

Hampshire (Seabrook Station, Units 1 & 2), CLI-88-10, 28 NRC 573, 595 (1988), 

reconsid. denied, CLI-89-3, 29 NRC 234 (1989); Curators of the University of Missouri, 

LBP-90-23, 32 NRC 7, 9 (1990). Special circumstances are present only if the petition 

properly pleads one or more facts, not common to a large class of applicants or 

facilities, that were not considered either explicitly or by necessary implication in the 

proceeding leading to the rule sought to be waived. Also, the special circumstances 

must be such as to undercut the rationale for the rule sought to be waived. Public 

Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), CLI-88-10, 28 NRC 

573, 596-97 (1988), reconsid. denied, CLI-89-3, 29 NRC 234 (1989). The petition must 

be accompanied by an affidavit. Other parties to the proceeding may respond to the 

petition. If the petition and responses, considered together, do not make a prima facie

showing that application of the regulation would not serve the purpose intended, the 

Licensing Board may not go any further. If a prima facie showing is made, then the 

issue is to be directly certified to the Commission for determination. 10 C.F.R. § 

2.335(d) (formerly § 2.758(d)). A waiver petition should not be certified unless the 

petition indicates that a waiver is necessary to address, on the merits, a significant 

safety problem related to the rule sought to be waived. Public Service Co. of New 

Hampshire (Seabrook Station, Units 1 & 2), CLI-88-10, 28 NRC 573, 597 (1988), 

reconsid. denied, CLI-89-3, 29 NRC 234 (1989). In the alternative, any party who 

asserts that a regulation is invalid may always petition for rulemaking under 10 C.F.R. 

Part 2, Subpart H (§§ 2.800-2.807). 

The provisions of 10 C.F.R. § 2.335 (formerly § 2.758) do not entitle a petitioner for a 

waiver or exception to a regulation to file replies to the responses of other parties to the 

petition. Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), 

LBP-87-12, 25 NRC 324, 326 (1987). 

Petitioners also cannot challenge a mere increase in radiological dose that overall 

remains well within regulatory limits as this amounts to an impermissible collateral 

attack on the regulation. Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power 

Station, Unit 2), CLI-03-14, 58 NRC 207, 218 (2003). 
GENERAL MATTERS 122 JUNE 2011 

To make a prima facie showing under 10 C.F.R. § 2.335 (formerly § 2.758) for waiving 

a regulation, a stronger showing than lack of reasonable assurance has to be made. 

Evidence would have to be presented demonstrating that the facility under review is so 

different from other projects that the rule would not serve the purposes for which it 

was adopted. Houston Lighting & Power Co. (South Texas Project, Units 1 & 2), 

LBP-83-49, 18 NRC 239, 240 (1983). 

To satisfy the “special circumstances” test under 10 C.F.R. § 2.335 (formerly § 2.1239), 

the situation must present “unusual facts” that were not contemplated when the 

regulation was promulgated. CFC Logistics, Inc., LBP-04-24, 60 NRC 475, 494 (2004). 

Another Licensing Board has applied a “legally sufficient” standard for the prima facie

showing. According to the Board, the question is whether the petition with its 

accompanying affidavits as weighed against the responses of the parties presents 

legally sufficient evidence to justify the waiver or exception from the regulation. Public 

Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), LBP-87-12, 25 NRC 

324, 328 (1987). See also Public Service Co. of New Hampshire (Seabrook Station, 

Units 1 & 2), ALAB-895, 28 NRC 7, 22 (1988). 

A request for an exception, based upon claims of costly delays resulting from 

compliance with a regulation, rather than claims that application of the regulation would 

not serve the purposes for which the regulation was adopted, is properly filed pursuant 

to 10 C.F.R. § 50.12 rather than 10 C.F.R. § 2.335 (formerly § 2.758). Cleveland 

Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), LBP-85-33, 22 NRC 

442, 444-45 (1985). 

A request for an exception is properly filed pursuant to 10 C.F.R. § 50.12, and not 

10 C.F.R. § 2.335 (formerly § 2.758), when the exception: (1) is not directly related to 

a contention being litigated in the proceeding; and (2) does not involve safety, 

environmental, or common defense and security issues serious enough for the Board 

to raise on its own initiative. Cleveland Electric Illuminating Co. (Perry Nuclear Power 

Plant, Units 1 & 2), LBP-85-33, 22 NRC 442, 445-46 (1985). 

6.21.5 Agency’s Interpretation of Its Own Regulations 

In the absence of any specific definition in a rule, one looks first to the meaning of the 

language of the provision in question. Connecticut Yankee Atomic Power Co.

(Haddam Neck Plant), LBP-01-25, 54 NRC 177, 184 (2001). Where a regulatory term 

lacks a statutory or regulatory definition, it should be construed in accord with its 

“‘ordinary or natural’ meaning,” which may be informed by regulatory and industry 

usage and practice. Hydro Res., Inc., LBP-06-1, 63 NRC 41, 66 n.24 (2006), aff’d, 

CLI-06-14, 63 NRC 510 (2006) (citing Smith v. United States, 508 U.S. 223, 228 

(1993)). 

The wording of a regulation generally takes precedence over any contradictory 

suggestion in its administrative history. Duke Power Co. (Catawba Nuclear Station, 

Units 1 & 2), ALAB-687, 16 NRC 460, 469 (1982); Public Service Co. of New 

Hampshire (Seabrook Station, Units 1 & 2), LBP-89-38, 30 NRC 725, 745 (1989), aff’d, 

ALAB-949, 33 NRC 484, 489-90 (1991); Wrangler Laboratories, LBP-89-39, 30 NRC 

746, 756 (1989), rev’d and remanded, ALAB-951, 33 NRC 505, 513-16 (1991). 
JUNE 2011 GENERAL MATTERS 123 

Where the NRC interprets its own regulations and where those regulations have long 

been construed in a given way, the doctrine of stare decisis will govern absent 

compelling reasons for a different interpretation; the regulations may be modified, if 

appropriate, through rulemaking procedures. New England Power Co. (NEP 

Units 1 & 2), Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), 

ALAB-390, 5 NRC 733, 741-42 (1977). 

Agency practice, of course, is one indicator of how an agency interprets its regulations. 

See Power Reactor Development Co. v. International Union, 367 U.S. 396, 408 (1961); 

Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-96-6, 43 NRC 123, 

129 (1996); Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), 

CLI-99-10, 49 NRC 318, 324 (1999); Sequoyah Fuels Corp. (Gore, OK Site 

Decommissioning), CLI-01-2, 53 NRC 2, 14 (2001). 

In interpreting a statute or regulation, the usual inference is that different language is 

intended to mean different things. This inference might be negated, however, by a 

showing that the purpose or history behind the language demonstrates that no 

difference was intended. Sequoyah Fuels Corp. and General Atomics (Gore, OK Site 

Decontamination and Decommissioning Funding), LBP-94-5, 39 NRC 54 (1994), aff’d, 

CLI-94-12, 40 NRC 64 (1994). 

If the plain language analysis does not resolve ambiguities, it may be appropriate to 

inquire into guidance documents, provided they do not conflict with the plain meaning 

of the words used in the regulation. Connecticut Yankee Atomic Power Co. (Haddam 

Neck Plant), LBP-01-25, 54 NRC 177, 184 (2001). 

Language in a Statement of Consideration for a regulation, having been endorsed by 

the Commission in its own Statement of Consideration, is entitled to “special weight” 

under relevant case law. See Long Island Lighting Co. (Shoreham Nuclear Power 

Station, Unit 1), ALAB-900, 28 NRC 275, 290-91 (1988), review declined, CLI-88-11, 

28 NRC 603 (1988); Graystar Inc., LBP-01-7, 53 NRC 168, 187 (2001). 

Interpretation of a regulation, like the interpretation of a statute, begins with the 

language and structure of the provision itself and the entirety of the provision must be 

given effect. Louisiana Energy Services (Claiborne Enrichment Center), CLI-97-15, 

46 NRC 294, 299 (1997); Northeast Nuclear Energy Co. (Millstone Nuclear Power 

Station, Unit 3), CLI-01-10, 53 NRC 353, 361 (2001); AmerGen Energy Co., Inc.

(Oyster Creek Nuclear Generating Station), CLI-08-28, 68 NRC 658, 674-75 (2008). 

It is a canon of construction that, where possible, a regulation should be construed in a 

manner that avoids internal inconsistencies. Hydro Res., Inc., LBP-06-1, 63 NRC 41, 

57 (2006), aff’d, CLI-06-14, 63 NRC 510 (2006) (citing, e.g., United States v. Raynor, 

302 U.S. 540, 547 (1938); Water Quality Ass’n Employees’ Benefit Corp. v. United 

States, 795 F.2d 1303, 1307 (7th Cir. 1986); Bhd. of Locomotive Firemen and 

Enginemen v. N. Pac. Ry. Co., 274 F.2d 641, 646-47 (8th Cir. 1960)). 

Under the canon of construction known as the rule of the last antecedent, “qualifying 

words, phrases and clauses must be applied to the words or phrases immediately 

preceding them and are not to be construed as extending to and including others more 

remote.” Hydro Res., Inc., LBP-06-1, 63 NRC 41, 56 n.11 (2006), aff’d, CLI-06-14, 
GENERAL MATTERS 124 JUNE 2011 

63 NRC 510 (2006) (citing Demko v. United States, 216 F.3d 1049, 1053 

(Fed. Cir. 2000) (quoting Wilshire Westwood Assocs. v. Atl. Richfield Corp., 

881 F.2d 801, 804 (9th Cir. 1989))). 

Where regulatory words at issue “are followed by a clause which is applicable as much 

to the first and other words as to the last, the natural construction of the language 

demands that the clause be read as applicable to all.” Hydro Res., Inc., LBP-06-1, 

63 NRC 41, 58 (2006), aff’d, CLI-06-14, 63 NRC 510 (2006) (quoting Porto Rico Ry., 

Light & Power Co. v. Mor, 253 U.S. 345, 348 (1920)). 

Boards have declined to interpret regulatory text in a way that would essentially negate 

the stated purpose of the regulation or impute to the Commission an intent to create a 

“schizophrenic” rule. Hydro Res., Inc., LBP-06-1, 63 NRC 41, 68-69 (2006), aff’d, 

CLI-06-14, 63 NRC 510 (2006) (citing Exxon Nuclear Co. (Nuclear Fuel Recovery and 

Recycling Center), ALAB-447, 6 NRC 873, 878 (1977); New York State Dep’t of Soc. 

Servs. v. Dublino, 413 U.S. 405, 419-20 (1973); Treadway v. Gateway Chevrolet 

Oldsmobile Inc., 362 F.3d 971, 976 (7th Cir. 2004)). 

It is a well-established rule of construction that technical terms of art should be 

interpreted by reference to the trade or industry to which they apply. A layman’s 

reading of a regulation, uninformed by context, is not decisive. Pa’ina Hawaii, LLC., 

CLI-06-13, 63 NRC 508, 518-19 (2006). 

6.21.6 General Design Criteria 

The GDC are not applicable to nuclear power plants with construction permits issued 

prior to May 21, 1971. Entergy Nuclear Operations, Inc. (Indian Point Nuclear 

Generating Units 2 & 3), LBP-08-13, 68 NRC 75 (2008). The GDC set out in 

10 C.F.R. Part 50, Appendix A, are “cast in broad, general terms and constitute the 

minimum requirements for the principal design criteria of water-cooled nuclear power 

plants. There are a variety of methods for demonstrating compliance with GDC.” 

Northeast Nuclear Energy Co. (Millstone Nuclear Power Station, Unit 3), CLI-01-10, 

53 NRC 353, 360-61 (2001), citing Petition for Emergency and Remedial Action, CLI78-6, 7 NRC 400, 406 (1978). 

GDC include little implementing detail. The GDC are “only a regulatory beginning and 

not the end product.” Northeast Nuclear Energy Co. (Millstone Nuclear Power Station, 

Unit 3), CLI-01-10, 53 NRC 353, 360 (2001), quoting Nader v. NRC, 513 F.2d 1045, 

1052 (D.C. Cir. 1975). 

There are no regulatory requirements that would require a summary of a licensee’s 

conformance to the draft GDC in the updated final safety analysis report. Entergy 

Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee 

Nuclear Power Station), DD-05-2, 62 NRC 389, 395 (2005). 

The NRC does not require licensees to compile a complete list of a plant’s current 

conformance to the draft GDC. The design and licensing bases for any plant reside in 

many documents. These documents are either submitted to the NRC as part of the 

formal docket or are available at the plant for review by NRC inspectors. A compilation 

of a plant’s compliance with the GDC or draft GDC is therefore not necessary for the 
JUNE 2011 GENERAL MATTERS 125 

Staff to perform license reviews or license inspections. Vermont Yankee, DD-05-2, 

62 NRC at 396-97. 

GDC 62 instructs NRC licensees in general terms to prevent criticality “by physical 

systems or processes.” GDC 62 contains no restrictive provisions against reliance on 

“administrative” measures (i.e., human intervention). In the context of regulations 

pertaining to nuclear power facilities, a “physical process” is a method of doing 

something, producing something, or accomplishing a specific result using the forces 

and operations of physics. Similarly, a “physical system” is an organized or 

established procedure or method based on the forces and operations of physics. 

Neither term excludes human intervention to set physical forces in motion or to monitor 

them. GDC 62 is not incompatible with “administrative” implementation of physical 

properties. Northeast Nuclear Energy Co. (Millstone Nuclear Power Station, Unit 3), 

CLI-01-10, 53 NRC 353, 361 (2001). 

GDC 62’s use of the term “physical” simply reinforces an obvious point: effective 

criticality prevention requires protective physical measures. The regulatory term 

excludes, at the most, marginal (and implausible) criticality prevention schemes lacking 

any physical component, such as, perhaps, mere observation without accompanying 

physical mechanisms. Northeast Nuclear Energy Co. (Millstone Nuclear Power 

Station, Unit 3), CLI-01-10, 53 NRC 353, 364 (2001). 

GDC do not purport to prescribe “precise tests or methodologies.” See Petition for 

Emergency and Remedial Action, CLI-78-6, 7 NRC 400, 406 (1978). Intervenors 

nonetheless would have the Staff construe GDC 62 to distinguish between “one-time” 

and “ongoing” administrative controls and to allow only “one-time” controls. Nothing in 

the text of GDC 62 suggests that, when promulgating the rule, the Commission 

envisioned anything like intervenors’ complex approach, and the Staff declines to adopt 

it today. Northeast Nuclear Energy Co. (Millstone Nuclear Power Station, Unit 3), CLI01-10, 53 NRC 353, 364 (2001). 

10 C.F.R. 50.68 expressly provides for the use of enrichment, burnup, and soluble 

boron as criticality control measures. Both the regulation and its history demonstrate 

that the Commission endorses the use of physical controls with significant procedural 

aspects for criticality control. The Commission was mindful of GDC 62 when it 

approved the use of administrative controls in 10 C.F.R. 50.68. The Statement of 

Consideration refers specifically to GDC 62 as reinforcing the prevention of criticality in 

fuel storage and handling “through physical systems, processes, and safe geometrical 

configuration.” See Criticality Accident Requirements, 62 Fed. Reg. 63,825, 63,826 

(Dec. 3, 1997). Northeast Nuclear Energy Co. (Millstone Nuclear Power Station, 

Unit 3), CLI-01-10, 53 NRC 353, 366 (2001). 

As the latest expression of the rulemakers’ intent, the more recent regulation prevails if 

there is a perceived conflict with an earlier regulation. See 2B Sutherland, Statutory 

Construction § 51.02 (1992). The specific provisions of 10 C.F.R. § 50.62 provide 

strong evidence for the NRC’s current reading of the more general strictures of 

GDC 62. Northeast Nuclear Energy Co. (Millstone Nuclear Power Station, Unit 3), CLI01-10, 53 NRC 353, 367 (2001). 

In 1982, the Nuclear Waste Policy Act (NWPA) was enacted by Congress, recognizing 

that accumulation of spent nuclear fuel is a national problem and that federal efforts to 
GENERAL MATTERS 126 JUNE 2011 

devise a permanent solution to problems of civilian radioactive waste disposal have not 

been adequate. See 42 U.S.C. § 10131(a)(2)-(3). The NWPA established federal 

responsibility and a definite federal policy for the disposal of spent fuel. See

42 U.S.C. § 10131(b)(2). Further, the act declared as one of its purposes the addition 

of new spent nuclear fuel storage capacity at civilian reactor sites. See

42 U.S.C. § 10151(b)(1). The NWPA directed nuclear power plant operators to 

exercise their “primary responsibility” for interim storage of spent fuel “by maximizing, 

to the extent practical, the effective use of existing storage facilities at the site of each 

civilian nuclear power reactor, and by adding new onsite storage capacity in a timely 

matter where practical.” See 42 U.S.C. § 10151(a)(1). Under the NWPA, the 

Commission was to promulgate rules for an expedited hearing process on applications 

“to expand the spent nuclear fuel storage capacity at the site of civilian nuclear power 

reactor[s] through the use of high-density fuel storage racks.” See 42 U.S.C. § 10154. 

The Licensing Board’s understanding of GDC 62 is compatible with the NWPA, while 

intervenors’ viewpoint cannot be reconciled with congressional policy on nuclear waste 

storage. Northeast Nuclear Energy Co. (Millstone Nuclear Power Station, Unit 3), 

CLI-01-10, 53 NRC 353, 367-68 (2001). 

The phrase “physical systems or processes” in GDC 62 comprehends the 

administrative and procedural measures necessary to implement or maintain such 

physical systems or processes. Northeast Nuclear Energy Co. (Millstone Nuclear 

Power Station, Unit 3), CLI-01-10, 53 NRC 353, 369 (2001). 

6.21.7 Reporting Requirements 

By using the words “initiation of any nuclear plant shutdown required by the plant’s 

Technical Specifications,” the regulation definitionally limits the reporting requirement 

to a single 1-hour report per technical specification shutdown. Michel A. Phillipon

(Denial of Senior Reactor Operator’s License), LBP-99-44, 50 NRC 347, 368 (1999) 

interpreting 10 C.F.R. § 50.72(b)(1)(i)(A). 

Although subsequent events involving the plant’s technical specifications may occur 

during the shutdown process, those later events do not “initiate” the shutdown and 

10 C.F.R. § 50.72(b)(1)(i)(A) does not require a 1-hour report to NRC for them. 

Michel A. Phillippon (Denial of Senior Reactor Operator’s License), LBP-99-44, 

50 NRC 347, 369 (1999). 

6.22 Rulemaking

Rulemaking procedures are covered, in general, in 10 C.F.R. § 2.800-2.807, which govern 

the issuance, amendment and repeal of regulations and public participation therein. It is 

well established that an agency’s decision to use rulemaking or adjudication in dealing 

with a problem is a matter of discretion. Fire Protection for Operating Nuclear Power 

Plants, CLI-81-11, 13 NRC 778, 800 (1981), citing NAACP v. FPC, 425 U.S. 662, 668 

(1976); Oncology Services Corp., LBP-94-2, 39 NRC 11 (1994). 

The Administrative Procedure Act provides agencies with considerable flexibility to choose 

between rulemaking and adjudicatory procedures when making law. All Power Reactor 

Licensees and Research Reactor Licensees who Transport Spent Nuclear Fuel, 

CLI-05-06, 61 NRC 37, 40 (2005). The Commission has authority to determine whether a 

particular issue shall be decided through rulemaking, through adjudicatory consideration, 
JUNE 2011 GENERAL MATTERS 127 

or by both means. Consumers Power Co. (Midland Plant, Units 1 & 2), LBP-82-118, 

16 NRC 2034, 2038 (1982), citing F.P.C. v. Texaco, Inc., 377 U.S. 33, 42-44 (1964); 

United States v. Storer Broadcasting Co., 351 U.S. 192, 202 (1955). In the exercise of 

that authority, the Commission may preclude or limit the adjudicatory consideration of an 

issue during the pendency of a rulemaking. Consumers Power Co. (Midland Plant, 

Units 1 & 2), LBP-82-118, 16 NRC 2034, 2038 (1982). 

When a matter is involved in rulemaking, the Commission may elect to require an issue 

which is part of that rulemaking to be heard as part of that rulemaking. Where it does not 

impose such a requirement, an issue is not barred from being considered in adjudication 

being conducted at that time. Consumers Power Co. (Midland Plant, Units 1 & 2), 

LBP-82-63, 16 NRC 571, 584-585 (1982); LBP-82-118, 16 NRC 2034, 2037 (1982). 

A contention that seeks to litigate a matter that is the subject of an agency rulemaking is 

not admissible. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage 

Installation), LBP-00-01, 51 NRC 1, 5 (2000); See Private Fuel Storage, L.L.C.

(Independent Spent Fuel Storage Installation), LBP-98-7, 47 NRC 142, 179, 

reconsideration granted in part and denied in part on other grounds, LBP-98-10, 

47 NRC 288, aff’d on other grounds, CLI-98-13, 48 NRC 26 (1998). 

It is, of course, a well-recognized proposition that the choice to use rulemaking rather than 

adjudication is a matter within the agency’s discretion. See NLRB v. Bell Aerospace Co., 

416 U.S. 267, 294 (1974); Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage 

Installation), LBP-00-01, 51 NRC 1, 5 (2000). 

6.22.1 Rulemaking Distinguished from General Policy Statements 

While notice and comment procedures are required for rulemaking, such procedures 

are not required for issuance of a policy statement by the Commission since policy 

statements are not rules. Vermont Yankee Nuclear Power Corp. (Vermont Yankee 

Nuclear Power Station), CLI-76-14, 4 NRC 163 (1976). However, if a policy statement 

changes the agency’s interpretation of a rule, it may constitute an interpretive rule and 

would therefore require notice and comment. MetWest Inc. v. Sec’y of Labor, 560 F.3d 

506, 509-12 (D.C. Cir. 2009). 

6.22.2 Generic Issues and Rulemaking 

The Commission has indicated that, as a rule, generic safety questions should be 

resolved in rulemaking rather than adjudicatory proceedings. See Vermont Yankee 

Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), CLI-74-40, 8 AEC 809, 

814-15, clarified, CLI-74-43, 8 AEC 826 (1974). In this vein, it has been held that the 

Commission’s use of rulemaking to set ECCS standards is not a violation of due 

process. Union of Concerned Scientists v. AEC, 499 F.2d 1069, 1081-82 

(D.C. Cir. 1974). 

It is within the agency’s authority to settle factual issues of a generic nature by means 

of rulemaking. Minnesota v. NRC, 602 F.2d 412, 416-17 (D.C. Cir. 1979) and Ecology 

Action v. AEC, 492 F.2d 998, 1002 (2d Cir. 1974), cited in Fire Protection for Operating 

Nuclear Power Plants, CLI-81-11, 13 NRC 778, 802 (1981). An agency’s previous use 

of a case-by-case problem resolution method does not act as a bar to a later effort to 

resolve generic issues by rulemaking. Pacific Coast European Conference v. United 
GENERAL MATTERS 128 JUNE 2011 

States, 350 F.2d 197, 205-06 (9th Cir.), cert. denied, 382 U.S. 958 (1965). The fact 

that standards addressing generic concerns adopted pursuant to such a rulemaking 

proceeding affect only a few, or one, licensee(s) does not make the use of rulemaking 

improper. Hercules, Inc. v. EPA, 598 F.2d 91, 118 (D.C. Cir. 1978), cited in Fire 

Protection, CLI-81-11, 13 NRC 778 (1981). Waiver of a Commission rule is not 

appropriate for a generic issue. The proper approach when a problem affects nuclear 

reactors generally is to petition the Commission to promulgate an amendment to its 

rules under 10 C.F.R. § 2.802. See, e.g., Entergy Nuclear Generation Co. and Entergy 

Nuclear Operations, Inc. (Pilgrim Nuclear Station & Vermont Yankee Nuclear Power 

Stations), CLI-07-3, 65 NRC 13, 20-21 (2007) (stating that the proper approach for 

pursuing a claim of new and significant information regarding a generic issue 

previously addressed by rulemaking is a petition for rulemaking); Entergy Nuclear 

Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), LBP-08-13, 68 NRC 43, 

126 (2008). If the issue is sufficiently urgent, the petitioner may request suspension of 

the licensing proceeding while the rulemaking is pending. Cleveland Electric 

Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), LBP-81-57, 14 NRC 1037, 

1038-39 (1981). Questions of onsite low-level waste storage are highly site and design 

specific and hence not appropriate for a generic low-level waste confidence 

rulemaking. Tennessee Valley Authority (Bellefonte Nuclear Power Plant, Units 3 & 4), 

CLI-09-3, 69 NRC 68, 76-78 (2009). 

6.23 Research Reactors

10 C.F.R. § 50.22 constitutes the Commission’s determination that if more than 50% of 

the use of a reactor is for commercial purposes, that reactor must be licensed under 

Section 103 of the AEA rather than Section 104. Section 104 licenses are granted for 

research and education, while Section 103 licenses are issued for industrial or commercial 

purposes. The Regents of the University of California (UCLA Research Reactor), 

LBP-83-24, 17 NRC 666, 670 (1983). 

In amending the AEA, Congress intended to “grandfather” research and development 

nuclear plant licenses and to exempt such licenses from seeking new licenses under the 

Act’s section governing commercial licenses. American Public Power Ass’n v. NRC, 

990 F.2d 1309, 1313 (D.C. Cir. 1993). 

The AEA does not require antitrust review for applications for renewal of research and 

development nuclear plant licenses. American Public Power Ass’n v. NRC, 

990 F.2d 1309, 1314 (D.C. Cir. 1993). 

6.24 Disclosure of Information to the Public

10 C.F.R. § 2.390 (formerly § 2.790) deals generally with NRC practice and procedure in 

making NRC records available to the public. The requirements governing the availability 

of some official records, governed by 10 C.F.R. § 2.390 (formerly § 2.790), were 

amended. 68 Fed. Reg. 18,836 (April 17, 2003). 10 C.F.R. Part 9 specifically establishes 

procedures for implementation of the FOIA (10 C.F.R. § 9.3 to 9.16) and Privacy Act 

(10 C.F.R. § 9.50, 9.51). 

Under 10 C.F.R. § 2.390 (formerly § 2.790), hearing boards are delegated the authority 

and obligation to determine whether proposals of confidentiality filed pursuant to 

Section 2.390(b)(1) (formerly Section 2.790(b)(1)) should be granted pursuant to the 
JUNE 2011 GENERAL MATTERS 129 

standards set forth in Subsections (b)(2) through (c) of that section. Wisconsin Electric

Power Co. (Point Beach Nuclear Plant, Units 1 & 2), LBP-81-62, 14 NRC 1747, 1755-56 

(1981). Pursuant to 10 C.F.R. § 2.319 (formerly § 2.718), boards may issue a wide 

variety of procedural orders that are neither expressly authorized nor prohibited by the 

rules. They may permit intervenors to contend that allegedly proprietary submissions 

should be released to the public. They may also authorize discovery or an evidentiary 

hearing that is not relevant to the contentions but is relevant to an important pending 

procedural issue, such as the trustworthiness of a party to receive allegedly proprietary 

material. However, discovery and hearings not related to contentions are of limited 

availability. They may be granted, on motion, if it can be shown that the procedure sought 

would serve a sufficiently important purpose to justify the associated delay and cost. 

Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Units 1 & 2), LBP-82-2, 

15 NRC 48 (1982). 

Section 10(b) of the Federal Advisory Committee Act, 5 U.S.C. App. 10(b), generally 

requires an agency to make available for public inspection and copying all materials which 

were made available to or prepared for or by an advisory committee. The materials must 

be made available to the public before or on the date of the advisory committee meeting 

for which they were prepared. An FOIA request for disclosure of the materials is required 

only for those materials which an agency reasonably withholds pursuant to an FOIA 

exemption, 5 U.S.C. § 552(b). Food Chemical News v. HHS, 980 F.2d 1468, 1471-72 

(D.C. Cir. 1992). 

Under Chrysler Corp. v. Brown, 441 U.S. 281 (1979), neither the Privacy Act nor the FOIA 

gives a private individual the right to prevent disclosure of names of individuals where the 

Licensing Board elects to disclose. Metropolitan Edison Co. (Three Mile Island Nuclear 

Station, Unit 1), LBP-81-50, 14 NRC 888, 891 (1981). 

In Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Units 1 & 2), LBP-82-33, 

15 NRC 887, 891-892 (1982), the Board ruled that the names and addresses of temporary 

employees who have worked on a tube-sleeving project are relevant to intervenor’s 

request for information about quality assurance in a tube-sleeving demonstration project. 

Since applicants have not given any specific reason to fear that intervenors will harass 

these individuals, their names should be disclosed so that intervenors may seek their 

voluntary cooperation in providing information to them. 

In the Seabrook offsite emergency planning proceeding, the Licensing Board extended a 

protective order to withhold from public disclosure the identity of individuals and 

organizations who had agreed to supply services and facilities which would be needed to 

implement the applicant’s offsite emergency plan. The Board noted the emotionally 

charged atmosphere surrounding the Seabrook facility, and, in particular, the possibility 

that opponents of the licensing of Seabrook would invade the applicant’s commercial 

interests and the suppliers’ right to privacy through harassment and intimidation of 

witnesses in an attempt to improperly influence the licensing process. Public Service Co. 

of New Hampshire (Seabrook Station, Units 1 & 2), LBP-88-8, 27 NRC 293, 295 (1988). 

6.24.1 Freedom of Information Act Disclosure 

Under FOIA, a Commission decision to withhold a document from the public must be 

by majority vote. Public Service Co. of Oklahoma (Black Fox Station, Units 1 & 2), 

CLI-80-35, 12 NRC 409, 412 (1980). 
GENERAL MATTERS 130 JUNE 2011 

While FOIA does not establish new government privileges against discovery, the 

Commission has elected to incorporate the exemptions of the FOIA into its own 

discovery rules. Consumers Power Company (Palisades Nuclear Power Facility), 

ALJ-80-1, 12 NRC 117, 121 (1980). 

Section 2.390 (formerly Section 2.790) of the Rules of Practice is the NRC’s 

promulgation in obedience to the FOIA. Consumers Power Company (Palisades 

Nuclear Power Facility), ALJ-80-1, 12 NRC 117, 121 (1980). 

Section 2.709 of the Rules of Practice provides that a presiding officer may order 

production of any record exempt under Section 2.390 (formerly Section 2.790) if its 

“disclosure is necessary to a proper decision and the document is not reasonably 

obtainable from another source.” This balancing test weighs the need for a proper 

decision against the interest in privacy. Metropolitan Edison Co. (Three Mile Island 

Nuclear Station, Unit 1), LBP-81-50, 14 NRC 888, 892 (1981). 

The presiding officer in an informal hearing lacks the authority to review the Staff’s 

procedures or determinations involving FOIA requests for NRC documents. However, 

the presiding officer may compel the production of certain of the requested documents 

if they are determined to be necessary for the development of an adequate record in 

the proceeding. Alfred J. Morabito (Senior Operator’s License), LBP-87-28, 26 NRC 

297, 299 (1987). 

Although 10 C.F.R. § 2.744 by its terms refers only to the production of NRC 

documents, it also sets the framework for providing protection for NRC Staff testimony 

where disclosure would have the potential to threaten the public health and safety. 

Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 & 2), LBP-83-40, 

18 NRC 93, 99 (1983). Nondisclosure of commercial or financial information pursuant 

to FOIA Exemption 4, 5 U.S.C. § 552(b)(4), may be appropriate if an agency can 

demonstrate that public disclosure of the information would harm an identifiable agency 

interest in efficient program operations or in the effective execution of its statutory 

responsibilities. The mere assertion that disclosure of confidential information provided 

to the NRC by a private organization will create friction in the relationship between the 

NRC and the private organization does not satisfy this standard. Critical Mass Energy 

Project v. NRC, 931 F.2d 939, 943-945 (D.C. Cir. 1991), vacated and reh’g en banc 

granted, 942 F.2d 799 (D.C. Cir. 1991). Also, commercial or financial information may 

be withheld if disclosure of the information likely would impair the agency’s ability to 

obtain necessary information in the future. To meet this standard, an agency may 

show that nondisclosure is required to maintain the qualitative value of the information. 

Critical Mass, 931 F.2d 945-947, citing National Parks and Conservation Ass’n v. 

Morton, 498 F.2d 765, 770 (D.C. Cir. 1974), vacated and reh’g en banc granted, 

942 F.2d 799 (D.C. Cir. 1991). On rehearing, the Court of Appeals reaffirmed the 

National Parks test for determining the confidentiality of commercial or financial 

information under FOIA Exemption 4. Such information is confidential if disclosure of 

the information is likely to (1) impair the government’s ability to obtain necessary 

information in the future, or (2) cause substantial harm to the competitive position of 

the person from whom the information was obtained. National Parks, 498 F.2d 770. 

However, the court restricted the National Parks test to information which a person is 

compelled to provide the government. Information which is voluntarily provided to the 

government is confidential under Exemption 4 if it is of a kind that customarily would 
JUNE 2011 GENERAL MATTERS 131 

not be released to the public by the provider. Critical Mass Energy Project v. NRC, 

975 F.2d 871, 876-877, 879-880 (D.C. Cir. 1992) (en banc), cert. denied, 507 U.S. 984 

(1993). 

The Commission, in adopting the standards of Exemption 5, and the “necessary to a 

proper decision” as its document privilege standard has adopted traditional work 

product/executive privilege exemptions from disclosure. Consumers Power Company

(Palisades Nuclear Power Facility), ALJ-80-1, 12 NRC 117, 123 (1980). 

The Government is no less entitled to normal privilege than is any other party in civil 

litigation. Consumers Power Company (Palisades Nuclear Power Facility), ALJ-80-1, 

12 NRC 117, 127 (1980). 

Any documents in final form memorializing the Director’s decision not to issue a notice 

of violation imposing civil penalties does not fall within Exemption 5. Consumers 

Power Company (Palisades Nuclear Power Facility), ALJ-80-1, 12 NRC 117, 129 

(1980). 

A person who has submitted an FOIA request to an agency must exhaust all 

administrative remedies before filing a lawsuit seeking production of the documents. 

An agency has ten (10) working days to respond to the request. 

5 U.S.C. § 552(a)(6)(A). If the agency has not responded within this 10-day period, 

then the requester has constructively exhausted the administrative remedies and may 

file a lawsuit. 5 U.S.C. § 552(a)(6)(C). However, if the agency responds after the 

10-day period, but before the requester has filed suit, then the requester must exhaust 

all the administrative remedies. Oglesby v. United States Dep’t of the Army, 

920 F.2d 57, 63-65 (D.C. Cir. 1990). 

An agency must conduct a good faith search for the requested records, using methods 

which reasonably can be expected to produce the information requested. Oglesby v. 

United States Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). 

6.24.2 Privacy Act Disclosure 

(RESERVED) 

6.24.3 Disclosure of Proprietary Information 

10 C.F.R. § 2.390 (formerly § 2.790), which deals generally with public inspection of 

NRC official records, provides exemptions from public inspection in appropriate 

circumstances. Specifically, § 2.390(a) (formerly § 2.790(a)) establishes that the NRC 

need not disclose information, including correspondence to and from the NRC 

regarding issuance, denial, and amendment of a license or permit, where such 

information involves trade secrets and commercial or financial information obtained 

from a person as privileged or confidential. 

Under 10 C.F.R. § 2.390(b) (formerly § 2.790(b)), any person may seek to have a 

document withheld, in whole or in part, from public disclosure on the grounds that it 

contains trade secrets or is otherwise proprietary. To do so, he must file an application 

for withholding accompanied by an affidavit identifying the parts to be withheld and 

containing a statement of the reasons for withholding. As a basis for withholding, the 
GENERAL MATTERS 132 JUNE 2011 

affidavit must specifically address the factors listed in § 2.390(b)(4) (formerly 

§ 2.790(b)(4)). If the NRC determines that the information is proprietary based on the 

application, it must then determine whether the right of the public to be fully appraised 

of the information outweighs the demonstrated concern for protection of the 

information. 

A party is not required to submit an application and affidavit, pursuant to 

10 C.F.R. § 2.390(b)(1) (formerly § 2.790(b)(1)), for withholding a security plan from 

public disclosure, since 10 C.F.R. § 2.390(d) (formerly § 2.790(d)) deems security 

plans to be commercial or financial information exempt from public disclosure. 

Louisiana Energy Services (Claiborne Enrichment Center), LBP-92-15A, 36 NRC 5, 

1112 (1992). 

For an affidavit to be exempt from the Board’s general authority to rule on proposals 

concerning the withholding of information from the public, that affidavit must meet the 

regulatory requirement that it have “appropriate markings.” When the plain language of 

the regulation requires “appropriate markings,” an alleged tradition by which Staff has 

accepted the proprietary nature of affidavits when only a portion of the affidavits is 

proprietary is not relevant to the correct interpretation of the regulation. In addition, 

legal argument may not appropriately be withheld from the public merely because it is 

inserted in an affidavit, a portion of which may contain some proprietary information. 

Affidavits supporting the proprietary nature of other documents can be withheld from 

the public only if they have “appropriate markings.” An entire affidavit may not be 

withheld because a portion is proprietary. The Board may review an initial Staff 

determination concerning the proprietary nature of a document to determine whether 

the review has addressed the regulatory criteria for withholding. Wisconsin Electric 

Power Co. (Point Beach Nuclear Plant, Units 1 & 2), LBP-81-62, 14 NRC 1747, 1754-5 

(1981); reconsid. denied in part, Wisconsin Electric Power Co. (Point Beach Nuclear 

Plant, Units 1 & 2), LBP-82-5A, 15 NRC 216 (1982). 

A party may not withhold legal arguments from the public by inserting those arguments 

into an affidavit that contains some proprietary information. Wisconsin Electric Power 

Co. (Point Beach Nuclear Plant, Units 1 & 2), LBP-82-5A, 15 NRC 216 (1982). 

If the Commission believes that an order contains proprietary information which may be 

harmful to the party/parties if released to the public, the Commission may withhold the 

order from public release. After the party/parties have an opportunity to review the 

order and advise the Commission of any confidential information, the Commission will 

release the order with the appropriate redactions. Power Authority of the State of New 

York (James A. FitzPatrick Nuclear Power Plant; Indian Point Nuclear Generating 

Unit 3), CLI-01-16, 54 NRC 1, 1-2 (2001). 

After reviewing a dispute over redaction of allegedly privileged commercial information, 

the Commission ordered an applicant to provide the Board with redacted versions 

consistent with the rulings in the Commission’s order, finding the Board to be better 

positioned to make an initial review of the proposed redactions given the factual nature 

of the redaction issues, the Board’s greater familiarity with the record, and the Board’s 

authorship of the initial redaction orders. Private Fuel Storage, L.L.C. (Independent 

Spent Fuel Storage Installation), CLI-05-1, 61 NRC 160, 183 (2005). 
JUNE 2011 GENERAL MATTERS 133 

The Commission’s requirements regarding the availability of official documents, 

governed by 10 C.F.R. § 2.390 (formerly § 2.790), were modified by an amendment, in 

part providing that those who submit documents supposedly containing proprietary or 

other confidential information mark the portions of the document containing such 

information. 68 Fed. Reg. 18,836 (April 17, 2003). 

6.24.3.1 Protecting Information Where Disclosure Is Sought in an Adjudicatory 

 Proceeding 

To justify the withholding of information in an adjudicatory proceeding where full 

disclosure of such information is sought, the person seeking to withhold the 

information must demonstrate that: 

 (1) the information is of a type customarily held in confidence by its 

 originator; 

 (2) the information has, in fact, been held in confidence; 

 (3) the information is not found in public sources; 

 (4) there is a rational basis for holding the information in confidence. 

Kansas Gas & Electric Co. (Wolf Creek Generating Station, Unit 1), ALAB-327, 

3 NRC 408 (1976). 

The Government enjoys a privilege to withhold from disclosure the identity of 

persons furnishing information about violations of law to officers charged with 

enforcing the law. Rovario v. United States, 353 U.S. 53, 59 (1957), cited in

Houston Lighting and Power Co. (South Texas Project, Units 1 & 2), ALAB-639, 

13 NRC 469, 473 (1981). This applies not only in criminal but also civil cases, In re 

United States, 565 F.2d 19, 21 (1977), cert. denied sub nom. Bell v. Socialist 

Workers Party, 436 U.S. 962 (1978), and in Commission proceedings as well, 

Northern States Power Co. (Monticello Plant, Unit 1), ALAB-16, 4 AEC 435, aff’d by 

the Commission, 4 AEC 440 (1970); § 2.390(a)(7) (formerly § 2.790(a)(7)); and is 

embodied in FOIA, 5 U.S.C. § 552(b)(7)(D). The privilege is not absolute; where an 

informer’s identity is (1) relevant and helpful to the defense of an accused, or 

(2) essential to a fair determination of a cause (Rovario, supra), it must yield. 

However, the Appeal Board reversed a Licensing Board’s order to the Staff to reveal 

the names of confidential informants (subject to a protective order) to intervenors as 

an abuse of discretion, where the Appeal Board found that the burden to obtain the 

names of such informants is not met by intervenor’s speculation that identification 

might be of some assistance to them. To require disclosure in such a case would 

contravene NRC policy in that it might jeopardize the likelihood of receiving similar 

future reports. Houston Lighting and Power Co. (South Texas Project, Units 1 & 2), 

ALAB-639, 13 NRC 469 (1981). 

For a detailed listing of the factors to be considered by a Licensing Board in 

determining whether certain documents should be classed as proprietary and 

withheld from disclosure in an adjudicatory proceeding, see Wisconsin Electric 

Power Co. (Point Beach Nuclear Plant, Unit 2), ALAB-137, 6 AEC 491, Appendix 

at 518 (1973) and Wisconsin Electric Power Co. (Point Beach Nuclear Plant, 

Units 1 & 2), LBP-82-42, 15 NRC 1307 (1982). If a Licensing Board or an intervenor 

with a pertinent contention wishes to review data claimed by an applicant to be 

proprietary, it has a right to do so, albeit under a protective order if necessary. 10 
GENERAL MATTERS 134 JUNE 2011 

C.F.R. § 2.390(b)(6) (formerly § 2.790(b)(6)); Florida Power & Light Co. (St. Lucie 

Nuclear Power Plant, Unit 2), ALAB-435, 6 NRC 541, 544 n.12 (1977); Power 

Authority of the State of New York (James FitzPatrick Nuclear Power Plant; Indian 

Point Nuclear Generating Unit 3), CLI-00-22, 52 NRC 266, 292 (2000). 

Because 10 C.F.R. § 2.390 (formerly § 2.790) embodies the standards of 

Exemption 4 of the FOIA, the agency looks for guidance to the plentiful federal case 

law on that exemption, although that case law does not bind the Commission. 

Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), 

CLI-05-1, 61 NRC 160, 163, 172 (2005). Under Exemption 4, the current generally 

accepted legal definition of “confidential” is information whose disclosure is likely to 

(1) impair the government’s future ability to obtain necessary information; (2) impair 

other government interests such as compliance, program efficiency and 

effectiveness, and the fulfillment of an agency’s statutory mandate; or (3) cause 

substantial harm to the competitive position of the person from whom the 

information was obtained. Id. at 163-64 (citing McDonnell Douglas Corp. v. Nat’l 

Aeronautics & Space Admin., 180 F.3d 303, 305 (D.C. Cir. 1999), reh’g en banc 

denied, No. 98-5251 (D.C. Cir. Oct. 6, 1999); Critical Mass Energy Project v. NRC, 

975 F.2d 871, 879 (D.C. Cir. 1992) (en banc), cert. denied, 507 U.S. 984 (1993), 

approving on this ground but rev’g and vacating on other grounds, 830 F.2d 278, 

286 (D.C. Cir. 1987); 9 to 5 Org. for Women Office Workers v. Bd. of Governors of 

the Fed. Reserve Sys., 721 F.2d 1, 7-10 (1st Cir. 1983). The federal courts (and 

now the Commission) have interpreted the third prong to require a showing of 

(a) the existence of competition and (b) the likelihood of substantial competitive 

injury. PFS, CLI-05-1, 61 NRC at 164, 171 (citing CNA Fin. Corp. v. Donovan, 

830 F.2d 1132, 1152 (D.C. Cir. 1987), cert. denied, 485 U.S. 977 (1988); Nat’l Parks 

& Conservation Ass’n v. Kleppe, 547 F.2d 673, 679 (D.C. Cir. 1976)). While federal 

court decisions are divided on the question as to what constitutes “competitive 

injury,” the Commission has adopted the broader of two interpretations, finding that 

interpretation to be closer to the heart of Exemption 4 and § 2.390 (formerly 

§ 2.790); this position concludes that such injury can flow from either competitors or 

noncompetitors (such as customers and suppliers). PFS, CLI-05-1, 61 NRC at 164 

(citing McDonnell Douglas Corp., 180 F.3d at 306; Nat’l Parks & Conservation 

Ass’n, 547 F.2d at 687; Cont’l Oil Co. v. Fed. Power Comm’n, 519 F.2d 31, 35 

(5th Cir. 1975), cert. denied, 425 U.S. 971 (1976)). 

Applicants seeking redaction of supposedly confidential or privileged commercial or 

financial information must address the criteria of 10 C.F.R. § 2.390(b)(4) (formerly 

§ 2.790(b)(4) with specificity, and if the Commission determines that any of the 

information is in fact “confidential commercial or financial information,” then it must 

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.’” Private Fuel Storage, L.L.C. (Independent 

Spent Fuel Storage Installation), CLI-05-1, 61 NRC 160, 163 (2005) (citing former 

10 C.F.R. § 2.790(b)). 

NRC decisions have consistently expressed support for settlements, and disclosure 

of proprietary information from a settlement [not of the immediate matter before the 

agency, but of a third-party settlement relevant to an applicant’s costs] would 

discourage parties from settling their financial disputes in the future; this would in 

turn hinder the fulfillment of the agency’s statutory mandate to protect the public 
JUNE 2011 GENERAL MATTERS 135 

health and safety. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage 

Installation), CLI-05-1, 61 NRC 160, 168 (2005) (citing Sequoyah Fuels Corp and 

Gen. Atomic (Gore, Oklahoma Site), CLI-97-13, 46 NRC 195, 205 (1997); 9 to 5 

Org. for Women Office Workers v. Bd. of Governors of the Fed. Reserve Sys., 

721 F.2d 1, 10 (1st Cir. 1983); Pub. Citizen Health Research Group v. Nat’l Insts. of 

Health, 209 F.Supp. 2d 37, 53 (D.D.C. 2002); Nadler v. Fed. Deposit Ins. Corp., 

899 F.Supp. 158, 162, 163 (S.D.N.Y. 1995), aff’d, 92 F.3d 93 (2d Cir. 1996)). The 

importance of honoring settling parties’ expectations of confidentiality is particularly 

strong where both parties to the settlement oppose disclosure of its terms on 

grounds of potential financial harm. PFS, CLI-05-1, 61 NRC at 168. 

Even where certain submitted information might otherwise have qualified for 

confidential treatment in connection with a licensing proceeding, an applicant’s own 

actions and practice (publishing that or similar information on its Web site or in 

newsletters) may render redaction inappropriate under the five-factor test of 

10 C.F.R. § 2.390 (b)(4) (formerly § 2.790(b)(4)). Private Fuel Storage, L.L.C.

(Independent Spent Fuel Storage Installation), CLI-05-1, 61 NRC 160, 176-77 

(2005) (certain ISFSI-related cost estimates). 

In making determinations about document redaction, the NRC, like the federal 

courts, need not “engage in a sophisticated economic analysis of the substantial 

competitive harm...that might result from disclosure” of allegedly confidential or 

privileged commercial information. Private Fuel Storage, L.L.C. (Independent Spent 

Fuel Storage Installation), CLI-05-1, 61 NRC 160, 177 n.101 (2005) (quoting GC 

Micro Corp. v. Def. Logistics Agency, 33 F.3d 1109, 1115 (9th Cir. 1994)). 

Portions of a hearing may have to be closed to the public when issues involving 

proprietary information are being addressed. Power Authority of the State of New 

York, et al. (James FitzPatrick Nuclear Power Plant; Indian Point Nuclear 

Generating Unit 3), CLI-00-22, 52 NRC 266, 292 (2000). 

Where a party to a hearing objects to the disclosure of information on the basis that 

it is proprietary in nature and makes out a prima facie case to that effect, it is proper 

for an adjudicatory board to issue a protective order and conduct further 

proceedings in camera. If, upon consideration, the Board determined that the 

material was not proprietary, it would order the material released for the public 

record. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), 

ALAB-807, 21 NRC 1195, 1214-15 (1985). See also Commonwealth Edison Co.

(Zion Nuclear Station, Units 1 & 2), ALAB-196, 7 AEC 457, 469 (1974). 

Following issuance of a protective order enabling an intervenor to obtain useful 

information, a Board can defer ruling on objections concerning the public’s right to 

know until after the merits of the case are considered. If an intervenor has 

difficulties due to failure to participate in in camera sessions, these cannot affect the 

Board’s ruling on the merits. Wisconsin Electric Power Co. (Point Beach Nuclear 

Plant, Units 1 & 2), LBP-81-55, 14 NRC 1017 (1981). 

When relevant parties, by reason of a protective order, have access to information 

claimed to be proprietary and considerable effort would be involved in parsing the 

various parties’ pleadings to identify and then resolve the question of what 

information has protected status, the resolution of disputes over the nature of the 
GENERAL MATTERS 136 JUNE 2011 

protected information is best left until after the conclusion of a merits resolution 

relative to the issues of the litigation. Private Fuel Storage, L.L.C. (Independent 

Spent Fuel Storage Installation), LBP-00-6, 51 NRC 101, 135 (2000). 

Where a demonstration has been made that the rights of association of a member of 

an intervenor group in the area have been threatened through threats of compulsory 

legal process to defend contentions, the employment situation in the area is 

dependent on the nuclear industry, and there is no detriment to applicant’s interests 

by not having the identity of individual members of petitioner organization publicly 

disclosed, the Licensing Board will issue a protective order to prevent the public 

disclosure of the names of members of the organizational petitioner. Washington 

Public Power Supply System (WPPSS Nuclear Project No. 1), LBP-83-16, 

17 NRC 479, 485-486 (1983). 

6.24.3.2 Security Plan Information Under 10 C.F.R. § 2.390(d) (formerly 

§ 2.790(d)) 

Plant security plans are “deemed to be commercial or financial information” 

pursuant to 10 C.F.R. § 2.390(d) (formerly § 2.790(d)). Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), LBP-82-80, 16 NRC 1121, 1124 (1982). 

Since 10 C.F.R. § 2.390(d) (formerly § 2.790(d)) deems security plans to be 

commercial or financial information exempt from public disclosure, a party is not 

required to submit an application and affidavit, pursuant to 10 C.F.R. § 2.390(b)(1) 

(formerly § 2.790(b)(1)), for withholding a security plan from public disclosure. 

Louisiana Energy Services (Claiborne Enrichment Center), LBP-92-15A, 36 NRC 5, 

11-12 (1992). 

A security plan, whether in the possession of the NRC Staff or a private party, is to 

be protected from public disclosure. Louisiana Energy Services (Claiborne 

Enrichment Center), LBP-92-15A, 36 NRC 5, 11 (1992). 

In making physical security plan information available to intervenors, Licensing 

Boards are to follow certain guidelines. Security plans are sensitive and are subject 

to discovery in Commission adjudicatory proceedings only under certain conditions: 

(1) the party seeking discovery must demonstrate that the plan or a portion of it is 

relevant to its contentions; (2) the release of the plan must (in most circumstances) 

be subject to a protective order; and (3) no witness may review the plan (or any 

portion of it) without it first being demonstrated that he possesses the technical 

competence to evaluate it. Pacific Gas & Electric Co. (Diablo Canyon Nuclear 

Power Plant, Units 1 & 2), CLI-80-24, 11 NRC 775, 777 (1980). 

Intervenors in Commission proceedings may raise contentions relating to the 

adequacy of the applicant’s proposed physical security arrangements. Long Island 

Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-80, 16 NRC 1121, 

1124 (1982). 

Commission regulations, 10 C.F.R. § 2.390 (formerly § 2.790), contemplate that 

sensitive information may be turned over to intervenors in NRC proceedings under 

appropriate protective orders. Long Island Lighting Co. (Shoreham Nuclear Power 

Station, Unit 1), LBP-82-80, 16 NRC 1121, 1124 (1982); Louisiana Energy Services

(Claiborne Enrichment Center), LBP-92-15A, 36 NRC 5, 11 (1992), citing Pacific 
JUNE 2011 GENERAL MATTERS 137 

Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-410, 

5 NRC 1398, 1403, 1404 (1977). 

Release of a security plan to qualified intervenors must be under a protective order 

and the individuals who review the security plan itself should execute an affidavit of 

nondisclosure. Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, 

Units 1 & 2), CLI-80-24, 11 NRC 775, 778 (1980). 

Protective orders may not constitutionally preclude public dissemination of 

information which is obtained outside the hearing process. A person subject to a 

protective order, however, is prohibited from using protected information gained 

through the hearing process to corroborate the accuracy or inaccuracy of outside 

information. Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, 

Units 1 & 2), CLI-80-24, 11 NRC 775, 778 (1980). The Licensing Board is in the 

best position to determine the most appropriate circumstances in which safeguards 

information may be viewed. Duke Energy Corp. (Catawba Nuclear Station, 

Units 1 & 2), CLI-05-2, 61 NRC 1, 7 (2005). 

6.25 Enforcement Proceedings

6.25.1 NRC Enforcement Authority 

Previous judicial interpretation makes it clear that the Commission’s procedures for 

initiating formal enforcement powers under Section 161.b., 161.i(3), and 186.a. of the 

AEA are wide ranging, perhaps uniquely so. Oncology Services Corp., LBP-94-2, 

39 NRC 11 (1994), citing Siegel v. AEC, 400 F.2d 778, 783 (D.C. Cir. 1968). 

As is evident from the Commission’s enforcement policy statement, regulatory 

requirements – including license conditions – have varying degrees of public health 

and safety significance. Consequently, as part of the enforcement process, the relative 

importance of each purported violation is evaluated, which includes taking a measure 

of its technical and regulatory significance, as well as considering whether the violation 

is repetitive or willful. Although, in contrast to civil penalty actions, there generally is no 

specification of a “severity level” for the violations identified in an enforcement order 

imposing a license termination, suspension, or modification, this evaluative process 

nonetheless is utilized to determine the type and severity of the corrective action taken 

in the enforcement order. Indiana Regional Cancer Center, LBP-94-21, 40 NRC 22, 

33-34 (1994). 

Under AEA provisions such as subsections (b) and (i) of Section 161, 

42 U.S.C. § 2201(b), (i), the agency’s authority to protect the public health and safety is 

uniquely wide-ranging. That, however, is not the same as saying that it is unlimited. In 

exercising that authority, including its prerogative to bring enforcement actions, the 

agency is subject to some restraints. See, e.g., Hurley Medical Center (Flint, MI), 

ALJ-87-2, 25 NRC 219, 236-37 & n.5 (1987) (NRC Staff cannot apply a comparativeperformance standard in civil penalty proceedings absent fair notice to licensees about 

the parameters of that standard). One of those constraints is the requirement of 

constitutional due process. Indiana Regional Cancer Center, LBP 94 21, 40 NRC 22, 

29-30 (1994). 
GENERAL MATTERS 138 JUNE 2011 

The scope of the NRC regulatory authority does not extend to all questions of fire 

safety at licensed facilities; instead, the scope of agency regulatory authority with 

respect to fire protection is limited to the hazards associated with nuclear materials. 

Thus, while the agency’s radiological protection responsibility requires it to consider 

questions of fire safety, this does not convert the agency into the direct enforcer of 

local codes, Occupational Safety and Health Administration regulations, or national 

standards on fire, occupational, and building safety that it has not incorporated into its 

regulatory scheme. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage 

Installation), LBP-00-35, 52 NRC 364, 388 (2000), citing Curators of the University of 

Missouri, CLI-95-8, 41 NRC 386, 393 (1995); Curators of the University of Missouri, 

CLI-95-1, 41 NRC 71, 159 (1995). 

Only statutes, regulations, orders, and license conditions can impose requirements on 

applicants and licensees. Private Fuel Storage, L.L.C. (Independent Spent Fuel 

Storage Installation), LBP-00-35, 52 NRC 364, 390 (2000), citing Curators of the 

University of Missouri, CLI-95-1, 41 NRC at 41, 98. 

The Commission is empowered to impose sanctions for violations of its license and 

regulations and to take remedial action to protect public health and safety. Within the 

limits of the agency’s statutory authority, the choice of sanction is quintessentially a 

matter of the Commission’s sound discretion. Advanced Medical Systems, Inc., 

CLI-94-6, 39 NRC 285, 312-313 (1994), aff’d, Advanced Medical Systems, Inc. v. NRC, 

61 F.3d 903 (6th Cir. 1995) (Table). 

A violation of a regulation does not of itself require that a license be suspended. Both 

the AEA and NRC regulations support the conclusion that the choice of remedy for 

regulatory violations is within the sound judgment of the Commission and not 

foreordained. See 42 U.S.C. §§ 2236, 2280, 2282; 10 C.F.R. § 50.100. Petition for 

Emergency and Remedial Action, CLI-78-6, 7 NRC 400, 405 (1978). 

Where the Staff in an enforcement settlement does not insist on strict compliance with 

a particular Commission regulation, it is neither waiving the regulation at issue nor 

amending it, but is instead merely exercising discretion to allow an alternative means of 

meeting the regulation’s goals. Sequoyah Fuels Corp. and General Atomics (Gore, 

OK, Site), CLI-97-13, 46 NRC 195, 221 (1997). 

6.25.2 Enforcement Procedures 

On Aug. 15, 1991, the Commission completed final rulemaking which revised the 

Commission’s procedures for initiating formal enforcement action. 

56 Fed. Reg. 40,664 (Aug. 15, 1991). Pursuant to 10 C.F.R. § 2.204(a), the 

Commission will issue a demand for information to a licensee or other person subject 

to the jurisdiction of the Commission in order to determine whether to initiate an 

enforcement action. A licensee must respond to the demand for information; a person 

other than a licensee may respond to the demand or explain the reasons why the 

demand should not have been issued. 10 C.F.R. § 2.204(b). Since the demand for 

information only requires the submission of information, and does not by its own terms 

modify, suspend, or revoke a license, or take other enforcement action, there is no 

right to a hearing. If the Commission decides to initiate enforcement action, it will serve 

on the licensee or other person subject to the jurisdiction of the Commission, an order 

specifying the alleged violations and informing the licensee or other person of the right 
JUNE 2011 GENERAL MATTERS 139 

to demand a hearing on the order. 10 C.F.R. § 2.202(a). The Commission has deleted 

the term “order to show cause” from Section 2.202. 

While a show cause order with immediate suspension of a license or permit may be 

issued without prior written notice where the public health, interest or safety is involved, 

the Commission cannot permanently revoke a license without prior notice and an 

opportunity for a hearing guaranteed by 10 C.F.R. § 2.202. Consumers Power Co.

(Midland Plant, Units 1 & 2), CLI-74-3, 7 AEC 7 (1974). 

The designated Staff officials, subject to requirements that they give licensees written 

notice of specific violations in deciding whether penalties are warranted, may prefer 

charges, may demand the payment of penalties, and may agree to compromise 

penalty cases without formal litigation. Additionally, such officials may consult with 

their Staff privately about the course to be taken. Radiation Technology, Inc., 

ALAB-567, 10 NRC 533, 537 (1979). 

Once a notice of opportunity for hearing has been published and a request for a 

hearing has been submitted, the decision as to whether a hearing is to be held no 

longer rests with the Staff but instead is transferred to the Commission or an 

adjudicatory tribunal designated to preside in the proceeding. Dairyland Power Coop.

(La Crosse Boiling Water Reactor), LBP-80-26, 12 NRC 367, 371 (1980). 

In Geo-Tech Associates (Geo-Tech Laboratories), CLI-92-14, 36 NRC 221 (1992), the 

Commission directed the presiding officer to consider the hearing request under the 

criteria for late filing in 10 C.F.R. 2.309(c) (formerly 2.714(a)(1)) in the absence of 

regulations governing late-filed and deficient hearing requests on enforcement orders. 

An agency may dispense with an evidentiary hearing in an enforcement proceeding 

in resolving a controversy if no dispute remains as to a material issue of fact. 

Advanced Medical Systems, Inc. (One Factory Row, Geneva, Ohio 44041), CLI-94-6, 

39 NRC 285, 299-300 (1994), aff’d, Advanced Medical Systems, Inc. v. NRC, 

61 F.3d 903 (6th Cir. 1995) (Table). 

Where a Board attaches license conditions in an enforcement proceeding, such action 

does not convert the enforcement proceeding into a license amendment proceeding. 

Once the Commission establishes a formal adjudicatory hearing in an enforcement 

case, it need not grant separate hearings on any license conditions that are imposed 

as a direct consequence of that enforcement hearing. Metropolitan Edison Co. (Three 

Mile Island Nuclear Station, Unit 1), CLI-85-9, 21 NRC 1118, 1148 (1985). 

The procedures for modifying, suspending or revoking a license are set forth in 

Subpart B to 10 C.F.R. Part 2. See All Chemical Isotope Enrichment, Inc., LBP-90-26, 

32 NRC 30, 36-38 (1990), citing AEA 186(a), 42 U.S.C. § 2236(a). 

There is no statutory requirement under Section 189.a. of the AEA for the Commission 

to offer a hearing on an order lifting a license suspension. 42 U.S.C. § 2239(a). It is 

within the discretionary powers of the Commission to offer a formal hearing prior to 

lifting a license suspension. The Commission’s decision depends upon the specific 

circumstances of the case, and a decision to grant a hearing in a particular instance 

(such as the restart of Three Mile Island, Unit 1) does not establish a general agency 

requirement for hearings on the lifting of license suspensions. The Commission has 
GENERAL MATTERS 140 JUNE 2011 

generally denied such requests for hearings. Southern California Edison Co. (San 

Onofre Nuclear Generating Station, Unit 1), CLI-85-10, 21 NRC 1569, 1575 n.7 (1985). 

See, e.g., Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), 

CLI-84-5, 19 NRC 953 (1984), aff’d, San Luis Obispo Mothers for Peace v. NRC, 751 

F.2d 1287, 1314 (D.C. Cir. 1984), aff’d on reh’q en banc, 789 F.2d 26 (1986); 

Massachusetts v. NRC, 878 F.2d 1516, 1522 (1st Cir. 1989). 

6.25.2.1 Due Process 

The Commission’s decision that cause existed to start a proceeding by issuing an 

immediately effective show cause order does not disqualify the Commission from 

later considering the merits of the matter. No prejudgment is involved, and no due 

process issue is created. Nuclear Engineering Co. (Sheffield, Illinois Low-Level 

Radioactive Waste Disposal Site), CLI-80-1, 11 NRC 1, 4-5 (1980). 

A party responding to an agency enforcement complaint has been accorded due 

process so long as the charges against it are understandable and it is afforded a full 

and fair opportunity to meet those charges. See Citizens State Bank v. FDIC, 

751 F.2d 209, 213 (8th Cir. 1984). Put somewhat differently, “‘[p]leadings in 

administrative proceedings are not judged by standards applied to an indictment at 

common law,’ but are treated more like civil pleadings where the concern is with 

notice....” Id. (quoting Aloha Airlines, Inc. v. CAB, 598 F.2d 250, 262 

(D.C. Cir. 1979)). Indiana Regional Cancer Center, LBP-94-21, 40 NRC 22, 30 

(1994). 

The ability of the responsible Staff official to proceed against a licensee by issuing 

an order imposing civil penalties is not a denial of due process because the licensee 

was not able to cross-examine the official to determine that he had not been 

improperly influenced by his staff. The demands of due process do not require a 

hearing at the initial stage or at any particular point or at more than one point in an 

administrative proceeding so long as the requisite hearing is held before the final 

order becomes effective. Radiation Technology, Inc., ALAB-567, 10 NRC 533, 536-

538 (1979). 

6.25.2.2 Intervention 

One cannot seek to intervene in an enforcement proceeding to have the NRC 

impose a stricter penalty than the NRC seeks. Issues in enforcement proceedings 

are only those set out in the order. Public Service Co. of Indiana (Marble Hill 

Nuclear Generating Station, Units 1 & 2), CLI-80-10, 11 NRC 438, 442 (1980). 

State of Alaska Dep’t of Transp. and Pub. Facilities, CLI-04-26, 60 NRC 399, 404 

(2004), reconsid. denied, CLI-04-38, 60 NRC 652 (2004). Injury alleged as a result 

of failure to grant more extensive relief is not cognizable in a proceeding on a 

confirmatory order and thus does not constitute grounds for appeal. FirstEnergy 

Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), CLI-04-23, 

60 NRC 154, 158 (2004). One who seeks the imposition of stricter requirements 

should file a petition pursuant to 10 C.F.R. § 2.206. Sequoyah Fuels Corp. (UF6 

Production Facility), CLI-86-19, 24 NRC 508, 513-514 (1986), citing Bellotti v. NRC, 

725 F.2d 1380 (D.C. Cir. 1982). State of Alaska Dep’t of Transp. and Pub. 

Facilities, CLI-04-26, 60 NRC 399, 407 n.35 (2004), reconsid. denied, CLI-04-38, 

60 NRC 652 (2004). 
JUNE 2011 GENERAL MATTERS 141 

For an enforcement order, the threshold question – related to both standing and 

admissibility of contentions – is whether the hearing request is within the scope of 

the proceeding as outlined in the order. State of Alaska Dep’t of Transp. and Pub. 

Facilities, CLI-04-26, 60 NRC 399, 405 (2004), reconsid. denied, CLI-04-38, 

60 NRC 652 (2004). 

For an enforcement order, the Commission has the authority to define the scope of 

the hearing, and this authority includes limiting the hearing to the question whether 

the order should be sustained. State of Alaska Dep’t of Transp. and Pub. Facilities, 

CLI-04-26, 60 NRC 399, 405 (2004), reconsid. denied, CLI-04-38, 60 NRC 652 

(2004). 

One may only intervene in an enforcement action upon a showing of injury from the 

contemplated action set out in the show cause order. Sequoyah Fuels Corp. and 

General Atomics (Gore, Oklahoma Site Decontamination and Decommissioning 

Funding), LBP-94-5, 39 NRC 54 (1994); aff’d, CLI-94-12, 40 NRC 64 (1994). One 

who seeks a stricter penalty than the NRC proposes has no standing to intervene 

because it is not injured by the lesser penalty. Public Service Co. of Indiana (Marble 

Hill Nuclear Generating Station, Units 1 & 2), CLI-80-10, 11 NRC 438, 442 (1980). 

State of Alaska Dep’t of Transp. and Pub. Facilities, CLI-04-26, 60 NRC 399, 404 

(2004), reconsid. denied, CLI-04-38, 60 NRC 652 (2004). 

The requirements for standing in an enforcement proceeding are no stricter than 

those in the usual licensing proceeding. Dairyland Power Coop. (La Crosse Boiling 

Water Reactor), LBP-80-26, 12 NRC 367, 374 (1980); Sequoyah Fuels Corp. and 

General Atomics (Gore, Oklahoma Site Decontamination and Decommissioning 

Funding), LBP-94-5, 39 NRC 54 (1994). 

The agency has broad discretion in establishing and applying rules for public 

participation in enforcement proceedings. Public Service Co. of Indiana (Marble Hill 

Nuclear Generating Station, Units 1 & 2), CLI-80-10, 11 NRC 438, 440-41 (1980). 

Intervention by interested persons who support an enforcement action does not 

diminish the agency’s discretion in initiating enforcement proceedings because the 

Commission need not hold a hearing on whether another path should have been 

taken. The Commission may lawfully limit a hearing to consideration of the remedy 

or sanction proposed in the order. Sequoyah Fuels Corp. and General Atomics

(Gore, OK, Site Decontamination and Decommissioning Funding), CLI-94-12, 

40 NRC 64, 70 (1994). 

The Commission has authority to define the scope of public participation in its 

proceedings beyond that which is required by statute. Consistent with this authority 

the Commission permits participation by those who can show that they have a 

cognizable interest that may be adversely affected if the proceeding has one 

outcome rather than another, including those who favor an enforcement action. 

Sequoyah Fuels Corp. and General Atomics (Gore, OK, Site), CLI-94-12, 40 NRC 

64, 69 (1994). 

For an enforcement order, the threshold question, intertwined with both standing 

and contention admissibility issues, is whether the hearing request is within the 

scope of the proceeding outlined in the enforcement order itself, i.e., whether the 
GENERAL MATTERS 142 JUNE 2011 

confirmatory order should be sustained. The Commission has the authority to 

define the scope of the hearing, including narrowly limiting the proceeding. 

FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), 

CLI-04-23, 60 NRC 154, 157-58 (2004). 

The Commission has broad discretion to allow intervention where it is not a matter 

of right. Such intervention will not be granted where conditions have already been 

imposed on a licensee, and no useful purpose will be served by that intervention. 

Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), 

CLI-80-10, 11 NRC 438, 442-43 (1980). 

Contentions in enforcement proceeding can be properly rejected under the doctrine 

of Belotti v. NRC [725 F.2d 1380 (D.C. Cir. 1983), aff’g Boston Edison Co. (Pilgrim 

Nuclear Power Station), CLI-82-16, 16 NRC 44 (1982)], when they in reality seek 

additional measures as a substitute for those imposed by the Staff. State of Alaska 

Dep’t of Transp. and Pub. Facilities, CLI-04-26, 60 NRC 399, 405 (2004), reconsid. 

denied, CLI-04-38, 60 NRC 652 (2004). The rationale underlying Belotti is that, 

when a licensee agrees to make positive changes or does not contest an order 

requiring remedial changes, it should not be at risk of being subjected to a wideranging hearing and further investigation. Id.

To decide whether an enforcement order should be upheld, the pertinent time 

contrast is between the petitioner’s position with and without the order in question – 

not between the disputed order and a hypothetical substitute order, regardless of 

whether that substitute order would be, in the petitioner’s estimation, an 

improvement. See State of Alaska Dep’t of Transp. and Pub. Facilities, CLI-04-26, 

60 NRC 399, 406 (2004), reconsid. denied, CLI-04-38, 60 NRC 652 (2004). 

The critical inquiry in a proceeding on a confirmatory order is whether the order 

improves the licensee’s health and safety conditions. If it does, no hearing is 

appropriate. See State of Alaska Dep’t of Transp. and Pub. Facilities, CLI-04-26, 

60 NRC 399, 408 (2004), reconsid. denied, CLI-04-38, 60 NRC 652 (2004). A 

petitioner is not adversely affected by a confirmatory order that improves the safety 

situation over what it was in the absence of the order. Id. at 406. However, the 

notice of opportunity for hearing provides the public a “safety valve” because an 

order conceivably may remove a restriction upon a licensee or otherwise have the 

effect of worsening the safety situation. Such an order remains open to challenge. 

Id. at 406 n.28. 

For a proceeding on a confirmatory order (where the licensee has already agreed to 

an enforcement order by the time the notice of hearing is published, as distinct from 

an enforcement proceeding still contestable by the licensees at the time of 

publication of the notice of hearing), a challenge to the facts themselves by a 

nonlicensee is not cognizable. See State of Alaska Dep’t of Transp. and Pub. 

Facilities, CLI-04-26, 60 NRC 399, 408 (2004), reconsid. denied, CLI-04-38, 

60 NRC 652 (2004). (However, in the aforementioned situation where the licensees 

could still contest the Staff’s factual findings or sanctions, a petitioner who supports

the order could have standing. Id. at 408 n.38.) 

In terms of enforcement, the NRC’s role, as outlined in [10 C.F.R.] Section 30.7, is 

to procure corrective action for the licensee’s program, and by example, other 
JUNE 2011 GENERAL MATTERS 143 

licensees’ programs, not to provide redress for the whistleblower. See State of 

Alaska Dep’t of Transp. and Pub. Facilities, CLI-04-26, 60 NRC 399, 406-07 (2004), 

reconsid. denied, CLI-04-38, 60 NRC 652 (2004) [referencing 10 C.F.R. § 30.7(c)]. 

Even where a petitioner appears to have been a victim of retaliatory misbehavior, 

and understandably focuses on his personal grievances, the NRC charter does not 

include providing a personal remedy. Id. at 407. 

In evaluating whether to pursue enforcement relief, and in considering various 

enforcement remedies, the NRC Staff acts like a prosecutor. The NRC’s 

adjudicatory process is not an appropriate forum for petitioners to second-guess 

enforcement decisions on resource allocation, policy priorities, or the likelihood of 

success at hearings. See State of Alaska Dep’t of Transp. and Pub. Facilities, 

CLI-04-26, 60 NRC 399, 407 (2004), reconsid. denied, CLI-04-38, 60 NRC 652 

(2004). 

The NRC Staff has considerable latitude in choosing enforcement weapons, and a 

petitioner’s (or the Board’s) disapproval of the remedy the Staff selected does not 

justify reopening an enforcement proceeding. See State of Alaska Dep’t of 

Transp. and Pub. Facilities, CLI-04-26, 60 NRC 399, 409 (2004), reconsid. denied, 

CLI-04-38, 60 NRC 652 (2004). The precise enforcement sanction to impose is 

within the Staff’s sound discretion, and whether the Staff carries out its responsibility 

in crafting the terms of enforcement directives to the degree a petitioner believes is 

warranted is not a matter within the ambit of a Licensing Board. Id. at 411. 

6.25.3 Petitions for Enforcement Action Under 10 C.F.R. § 2.206 

Although 10 C.F.R. § 2.206 may be technically available for a petitioner that wishes to 

assert operational problems, it is not the exclusive forum. Where operational issues 

are relevant to a recapture proceeding, they may also be raised in that proceeding. 

Moreover, the hearing rights available through a Section 2.206 petition are scarcely 

equivalent to, and not an adequate substitute for, hearing rights available in a licensing 

proceeding. See Washington Public Power Supply System (WPPSS Nuclear Project 

No. 3), ALAB-747, 18 NRC 1167, 1175-77 (1983). The decision of the Staff to take or 

not take enforcement action pursuant to Section 2.206 is purely discretionary – it is not 

subject to review by the Commission (except on its own motion) or by courts, even for 

abuse of discretion. 10 C.F.R. § 2.206(c)(1) and (2); Heckler v. Cheney, 470 U.S. 821 

(1985). The Commission has agreed that petitions utilizing 10 C.F.R. 2.206 to address 

matters under 10 C.F.R. Part 52 are reviewable – unlike actions taken under 

Section 2.206 in other contexts. Such reviewability in that context was one of the 

primary ingredients in the judicial approval of Part 52. Nuclear Information Resource 

Service v. NRC, 969 F.2d 1169 (D.C. Cir. 1992). The Court there noted that “the use 

to which a § 2.206 petition is put – not its form – governs its reviewability.” 969 F.2d 

1178. Pacific Gas & Electric Co. (Diablo Canyon Nuclear Plant, Units 1 & 2), 

LBP-93-1, 37 NRC 5, 18 (1993). 

Under 10 C.F.R. § 2.206, members of the public may request the NRC Staff to issue 

an enforcement order. Consolidated Edison Co. (Indian Point Nuclear Generating 

Unit 2) and Power Authority of the State of New York (Indian Point Nuclear Generating 

Unit 3), CLI-83-16, 17 NRC 1006, 1009 (1983); Yankee Atomic Electric Co. (Yankee 

Nuclear Power Station), CLI-94-3, 39 NRC 95, 101 (1994). Under 10 C.F.R. § 2.206, 

any person at any time may request the Director of Nuclear Reactor Regulation, 
GENERAL MATTERS 144 JUNE 2011 

Director of Nuclear Material Safety and Safeguards, or Director, Office of Inspection 

and Enforcement, as appropriate, to issue an order under 10 C.F.R. § 2.202 et seq. for 

suspension, revocation or modification of an operating license or a construction permit. 

However, the Commission’s longstanding policy discourages the use of Section 2.206 

procedures as an avenue for deciding matters that are already under consideration in a 

pending adjudication. Georgia Power Co., et al. (Hatch Nuclear Plant, Units 1 & 2; 

Vogtle Electric Generating Plant, Units 1 & 2), CLI-95-5, 41 NRC 321, 322 (1995). The 

Staff’s final determination of common issues should take into account the Licensing 

Board’s findings. 

Although petitions for enforcement action are filed with the NRC Staff, the Commission 

retains the power to rule directly on enforcement petitions. 10 C.F.R. § 2.206(c). The 

Commission will elect to exercise this power only when the issues raised in the petition 

are of sufficient public importance. Yankee Atomic Electric Co. (Yankee Rowe Nuclear 

Power Station), CLI-91-11, 34 NRC 3, 6 (1991); Earthline Technologies, LBP-03-6, 

57 NRC 251, 245 (2003). 

The Director of Nuclear Reactor Regulation, upon receipt of a request to initiate an 

enforcement proceeding, is required to make an inquiry appropriate to the facts 

asserted. Provided he does not abuse his discretion, he is free to rely on a variety of 

sources of information, including Staff analyses of generic issues, documents issued 

by other agencies, and the comments of the licensee on the factual allegations. 

Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), CLI-78-7, 

7 NRC 429, 432, 433 (1978). 

In reaching a determination on a petition for enforcement action, the Director need not 

accord presumptive validity to every assertion of fact, irrespective of the degree of 

substantiation. Nor is the Director required to convene an adjudicatory proceeding to 

determine whether an adjudicatory proceeding is warranted. Northern Indiana Public 

Service Co. (Bailly Generating Station, Nuclear-1), CLI-78-7, 7 NRC 429, 432 (1978). 

The Administrative Procedure Act, 5 U.S.C.§§ 551 et seq., particularly Section 554, 

and the Commission’s regulations deal specifically with on-the-record adjudication; 

thus, the Staff’s participation in a construction permit proceeding does not render it 

incapable of impartial regulatory action in a subsequent show cause or suspension 

proceeding where no adjudication has begun. Moreover, in terms of policy, any view 

which questions the Staff’s capabilities in such a situation is contradicted by the 

structure of nuclear regulation established by the AEA and the experience 

implementing that statute. Northern Indiana Public Service Co. (Bailly Generating 

Station, Nuclear-1), CLI-78-7, 7 NRC 429, 431, 432 (1978). 

New matters which cannot be raised before a Board because of a lack of jurisdiction 

may be raised in a petition under 10 C.F.R. § 2.206. Florida Power & Light Co.

(St. Lucie Nuclear Power Plant, Unit 2), ALAB-579, 11 NRC 223, 226 (1980); Union 

Electric Co. (Callaway Plant, Unit 1), ALAB-750, 18 NRC 1205, 1217 n.39 (1983); 

Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), 

ALAB-782, 20 NRC 838, 840 (1984). Where petitioner’s case has no discernible 

relationship to any other pending proceeding involving the same facility, the procedure 

set out in 10 C.F.R. § 2.206 must be regarded as the exclusive remedy. Northern 
JUNE 2011 GENERAL MATTERS 145 

Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), ALAB-619, 12 NRC 

558, 570 (1980). 

After the Commission has awarded an operating license, the appropriate means by 

which to challenge the issuance of the license or to seek the suspension of the license 

is to file a petition, 10 C.F.R. § 2.206, requesting that the Commission initiate 

enforcement action pursuant to 10 C.F.R. § 2.202. Texas Utilities Electric Co.

(Comanche Peak Steam Electric Station, Units 1 & 2), CLI-92-12, 36 NRC 62, 67, 

77-78 (1992). 

In every case, a petitioner that for some reason cannot gain admittance to a 

construction permit or operating license hearing, but wishes to raise health, safety, or 

environmental concerns before the NRC, may file a request with the Staff under 

10 C.F.R. § 2.206 asking the Staff to institute a proceeding to address those concerns. 

The Staff must analyze the technical, legal, and factual basis for the relief requested 

and respond either by undertaking some regulatory activity, or if it believes no 

proceeding or other action is necessary, by advising the requestor in writing of reasons 

explaining that determination. Detroit Edison Co. (Enrico Fermi Atomic Power Plant, 

Unit 2), ALAB-707, 16 NRC 1760, 1767, 1768 (1982). See Washington Public Power 

Supply System (WPPSS Nuclear Project Nos. 1 & 2), CLI-82-29, 16 NRC 1221, 1228-

1229 (1982). See also Porter County Chapter of the Izaak Walton League of America, 

Inc. v. NRC, 606 F.2d 1363, 1369-1370 (D.C. Cir. 1979); Washington Public Power 

Supply System (WPPSS Nuclear Project No. 2), ALAB-722, 17 NRC 546, 552-53 

(1983). 

Under 10 C.F.R. § 2.206, one may petition the NRC for stricter enforcement actions 

than the agency contemplates. Public Service Co. of Indiana (Marble Hill Nuclear 

Generating Station, Units 1 & 2), CLI-80-10, 11 NRC 438, 442-43 (1980). 

The mechanism for requesting an enforcement order is a petition filed pursuant to 

10 C.F.R. § 2.206. See, e.g., Consolidated Edison Co. (Indian Point Nuclear 

Generating Unit 2) and Power Authority of the State of New York (Indian Point Nuclear 

Generating Unit 3), CLI-83-16, 17 NRC 1006, 1009 (1983). Note that such a petition 

may not be used to seek relitigation of an issue that has already been decided or to 

avoid an existing forum in which the issue is being or is about to be litigated. 

Consolidated Edison Co. (Indian Point Nuclear Generating Units 1, 2 & 3), CLI-75-8, 

2 NRC 173, 177 (1975); Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power 

Plant, Units 1 & 2), CLI-81-6, 13 NRC 443, 446 (1981); General Public Utilities Nuclear 

Corp. (Three Mile Island Nuclear Station, Units 1 & 2; Oyster Creek Nuclear 

Generating Station), CLI-85-4, 21 NRC 561, 563 (1985); Georgia Power Co., et al.

(Hatch Nuclear Plant, Units 1 & 2; Vogtle Electric Generating Plant, Units 1 & 2), 

CLI-93-15, 38 NRC 1, 2-3 (1993), clarified CLI-95-5, 41 NRC 321 (1995). This general 

rule is not intended to bar petitioners from seeking immediate enforcement action from 

the NRC Staff in circumstances in which the presiding officer in a proceeding is not 

empowered to grant such relief. Georgia Power Co., et al. (Hatch Nuclear Plant, Units 

1 & 2; Vogtle Electric Generating Plant, Units 1 & 2), CLI-93-15, 38 NRC 1, 2 (1993). 

Non-parties to a proceeding are also prohibited from using 10 C.F.R. § 2.206 as a 

means to reopen issues which were previously adjudicated. General Public Utilities 

Nuclear Corp. (Three Mile Island Nuclear Station, Units 1 & 2; Oyster Creek Nuclear 

Generating Station), CLI-85-4, 21 NRC 561, 564 (1985). See, e.g., Northern Indiana 
GENERAL MATTERS 146 JUNE 2011 

Public Service Co. (Bailly Generating Station, Nuclear-1), CLI-78-7, 7 NRC 429 (1979), 

aff’d, Porter County Chapter of the Izaak Walton League, Inc. v. NRC, 606 F.2d 1363 

(D.C. Cir. 1979). 

The Director of Nuclear Reactor Regulation properly has discretion to differentiate 

between those petitions which indicate that substantial issues have been raised 

warranting institution of a proceeding and those which serve merely to demonstrate 

that in hindsight, even the most thorough and reasonable of forecasts will prove to fall 

short of absolute prescience. Northern Indiana Public Service Co. (Bailly Generating 

Station, Nuclear-1), CLI-78-7, 7 NRC 429, 433 (1978), aff’d, Porter County Chapter of 

the Izaak Walton League, Inc. v. NRC, 606 F.2d 1363 (D.C. Cir. 1979). 

Under 10 C.F.R. § 2.202, the NRC Staff is empowered to issue an order when it 

believes that modification or suspension of a license, or other such enforcement action, 

is warranted. Under 10 C.F.R. § 2.206, members of the public may request the NRC 

Staff to issue such an order. Consolidated Edison Co. (Indian Point Nuclear 

Generating Unit 2) and Power Authority of the State of New York (Indian Point Nuclear 

Generating Unit 3), CLI-83-18, 17 NRC 1006, 1009 (1983). 

A Director does not abuse his or her discretion by refusing to take enforcement action 

based on mere speculation that financial pressures might in some unspecified way 

undermine the safety of a facility’s operation. Maine Yankee Atomic Power Co. (Maine 

Yankee Atomic Power Station), CLI-83-21, 18 NRC 157, 160 (1983). 

The Director may, in his discretion, consolidate the essentially indistinguishable 

requests of petitioners if those petitioners are unable to demonstrate prejudice as a 

result of the consolidation. Northern Indiana Public Service Company (Bailly 

Generating Station, Nuclear-1), CLI-78-7, 7 NRC 429, 433 (1978), aff’d, Porter County 

Chapter of the Izaak Walton League, Inc. v. NRC, 606 F.2d 1363 (D.C. Cir. 1979). 

If the intervenors disagree with conclusions reached at a meeting between Staff and 

licensee regarding whether the licensee had complied with the Commission’s licensing 

conditions, the intervenors may seek further agency action by filing a petition with the 

Commission pursuant to 10 C.F.R. § 2.206. The Staff response to such a petition 

would be subject to the ultimate oversight of the Commission. Curators of the 

University of Missouri, CLI-95-17, 42 NRC 229 (1995). 

In a materials licensing proceeding, the Commission rejected an intervenor’s argument 

that because the licensee might not adhere to the methodology in its license, the 

intervenor should therefore have rights to an adjudicatory hearing on future 

determinations made in connection with particular license conditions. This argument 

would transmogrify license proceedings into open-ended enforcement actions; 

Licensing Boards would be required to keep license proceedings open for the entire life 

of the license so intervenors would have a continuing, unrestricted opportunity to raise 

charges of noncompliance. If the intervenors subsequently have cause to believe that 

the licensee is not following the relevant procedures, they can petition the Staff for 

enforcement action. Hydro Res., Inc. (P.O. Box 777, Crownpoint, New Mexico 87313), 

CLI-06-1, 63 NRC 1, 5-6 (2006). 

Requests for emergency injunctions are akin to petitions for enforcement actions. 

Earthline Technologies, LBP-03-6, 57 NRC 251, 245 (2003). 
JUNE 2011 GENERAL MATTERS 147 

6.25.3.1 Commission Review of Director’s Decisions Under 10 C.F.R. § 2.206 

The Commission retains plenary authority to review Director’s decisions. 

10 C.F.R. § 2.206(c)(1). Yankee Atomic Electric Co. (Yankee Nuclear Power 

Station), CLI-96-6, 43 NRC 123, 126 (1996). 

10 C.F.R. § 2.206 provides that the Commission may, on its own motion, review the 

decision of the Director not to issue a show cause order to determine if the Director 

has abused his discretion. 10 C.F.R. § 2.206(c)(1). No other petition or request for 

Commission review will be entertained. 10 C.F.R. § 2.206(c)(2). Yankee Atomic 

Electric Co. (Yankee Nuclear Power Station), CLI-96-6, 43 NRC 123, 127 (1996). 

While there is no specific provision for Commission review of a decision to issue a 

show cause order, the regulation does acknowledge that the review power set forth 

in Section 2.206 does not limit the Commission’s supervisory power over delegated 

Staff actions. 10 C.F.R. § 2.206(c)(1). Thus, it is clear that the Commission may 

conduct any review of a decision with regard to requests for show cause orders that 

it deems necessary. Dr. James E. Bauer (Order Prohibiting Involvement in NRCLicensed Activities), LBP-94-40, 40 NRC 323 (1994). 

The Commission has indicated that its review of Director’s decisions under 

Section 2.206 would be directed toward whether the Director abused his authority 

and, in particular, would include a consideration of the following: 

 (1) does the statement of reasons for issuing the order permit a rational 

 understanding of the basis for the decision; 

 (2) did the Director correctly comprehend the applicable law, 

 regulations and policy; 

 (3) were all necessary factors included and irrelevant factors excluded; 

 (4) were appropriate inquiries made as to the facts asserted; 

 (5) is the decision basically untenable on the basis of the facts known to the 

 Director. 

Consolidated Edison Co. (Indian Point Nuclear Generating Units 1, 2 & 3), CLI-75-8, 

2 NRC 173 (1975). See also Nuclear Engineering Co., Inc. (Sheffield, Illinois LowLevel Radioactive Waste Disposal Site), CLI-79-6, 9 NRC 673, 676 n.1 (1979). 

Under the Indian Point standards, the Director’s decision will not be disturbed unless 

it is clearly unwarranted or an abuse of discretion. Licensees Authorized to Possess 

or Transport Strategic Quantities of Special Nuclear Material, CLI-77-3, 5 NRC 16 

(1977). Although the Indian Point review is essentially a deferral to the Staff’s 

judgment on facts relating to a potential enforcement action, it is not an abdication of 

the Commission’s responsibilities since the Commission will decide any policy 

matters involved. CLI-77-3, 5 NRC at 20 n.6. 

If the Commission takes no action to reverse or modify a Director’s decision within 

twenty-five (25) days of issuance of the decision, it becomes final agency action 

10 C.F.R. § 2.206(c)(1). Yankee Atomic Electric Co. (Yankee Nuclear Power 

Station), CLI-96-6, 43 NRC 123, 128 (1996). 
GENERAL MATTERS 148 JUNE 2011 

The question of whether the federal courts have jurisdiction to review the Director’s 

denial of a § 2.206 petition has not been directly addressed by the Supreme Court. 

See Lorion v. NRC, 470 U.S. 729 (1985). However, some federal appeals courts 

have determined that the Director’s denial is unreviewable. Safe Energy Coalition v. 

NRC, 866 F.2d 1473, 1476, 1477-78 (D.C. Cir. 1989); Arnow v. NRC, 868 F.2d 223, 

230, 231 (7th Cir. 1989), cert. denied, 110 S.Ct. 61 (1989); Massachusetts Public 

Interest Research Group v. NRC, 852 F.2d 9, 14-18 (1st Cir. 1988). The courts 

relied upon: (1) the Administrative Procedure Act, 5 U.S.C. § 701(a)(2), which 

precludes judicial review when agency action is committed to agency discretion by 

law, and (2) the Supreme Court’s interpretation of § 701(a)(2) in Heckler v. Chaney, 

470 U.S. 821 (1985), decided the same day as Lorion v. NRC, 470 U.S. 729 (1985), 

wherein the Court held that an agency’s refusal to undertake enforcement action 

upon request is presumptively unreviewable by the courts. That presumption may 

be rebutted where the substantive statute has provided guidelines for the agency to 

follow in exercising its enforcement powers. Upon review of the AEA, NRC 

regulations, and NRC case law, the courts did not find any provisions which would 

rebut the presumption of unreviewability. Also note Ohio v. NRC, 868 F.2d 810, 

818-19 (6th Cir. 1989), in which the court avoided the jurisdictional issue and 

instead dismissed the petition for review on its merits. 

Licensing Boards lack jurisdiction to entertain motions seeking review only of 

actions of the Director of Nuclear Reactor Regulation; the Commission itself is the 

forum for such review. See 10 C.F.R. § 2.206(c). Detroit Edison Co. (Enrico Fermi 

Atomic Power Plant, Unit 2), ALAB-466, 7 NRC 457 (1978). 

Safety questions not properly raised in an adjudication may nonetheless be suitable 

for NRC consideration under its public petitioning process, 10 C.F.R. § 2.206. See

Power Authority of the State of New York (James A. FitzPatrick Nuclear Power 

Plant; Indian Point Nuclear Generating Unit 3), CLI-00-22, 52 NRC 266, 311 (2000); 

International Uranium (USA) Corp. (Receipt of Material from Tonawanda, New 

York), CLI-98-23, 48 NRC 259, 265-266 (1998). Carolina Power & Light Co.

(Shearon Harris Nuclear Power Plant), CLI-01-11, 53 NRC 370, 383 n.4 (2001). 

6.25.4 Grounds for Enforcement Orders 

An intentional act that a person knows causes a violation of a licensee procedure is 

considered “deliberate misconduct” actionable under Section 30.10(a)(1). As a 

consequence, an assertion that a person who created a document containing false 

information did not intend to mislead the agency (or did not actually mislead the 

agency) appears irrelevant. Instead, the focus is on whether the person’s action was a 

knowing violation of a licensee procedure that could have resulted in a regulatory 

violation by the submission to the agency of materially incomplete or inaccurate 

information. See 56 Fed. Reg. 40,664, 40,670 (1991) (stating that “[f]or situations that 

do not actually result in a violation by a licensee, anyone with the requisite knowledge 

who engages in deliberate misconduct as defined in the rule has the requisite intent to 

act in a manner that falls within the NRC’s area of regulatory concern. The fact that the 

action may have been intercepted or corrected prior to the occurrence of an actual 

violation has no bearing on whether, from a health and safety standpoint, that person 

should be involved in nuclear activities.”). Eastern Testing and Inspection, Inc., 

LBP-96-9, 43 NRC 211, 224 (1996). 
JUNE 2011 GENERAL MATTERS 149 

The institution of a proceeding to modify, suspend, or revoke a license need not be 

predicated upon alleged license violations, but rather may be based upon any “facts 

deemed to be sufficient grounds for the proposed action.” 10 C.F.R. § 2.202. Northern 

Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), ALAB-619, 12 NRC 

558, 570-71 (1980). 

The Commission need not withhold enforcement action until it is ready to proceed with 

like action against all others committing similar violations. The Commission may act 

against one firm practicing an industry-wide violation. A rigid uniformity of sanctions is 

not required, and a sanction is not rendered invalid simply because it is more severe 

than that issued in other cases. Enforcement actions inherently involve the exercise of 

informed judgment on a case-by-case basis, and the ordering of enforcement priorities 

is left to the agency’s sound discretion. Advanced Medical Systems, Inc. (One Factory 

Row, Geneva, Ohio 44041), CLI-94-6, 39 NRC 285 (1994), aff’d, Advanced Medical 

Systems, Inc. v. NRC, 61 F.3d 903 (6th Cir. 1995) (Table). 

The Staff is not precluded, as a matter of law, from relying on allegations as the basis 

for an enforcement order if there is a “sufficient nexus” between the allegations and the 

regulated activities that formed the focus of the Staff’s order. Dr. James E. Bauer

(Order Prohibiting Involvement in NRC-Licensed Activities), LBP-94-40, 40 NRC 323, 

331 (1994), citing Indiana Regional Cancer Center, LBP-94-21, 40 NRC 22, 31 (1994). 

In assessing whether the bases assigned support an order in terms of both the type 

and duration of the enforcement action, a relevant factor may be the public health and 

safety significance, including the medical appropriateness, of the specified bases. 

Dr. James E. Bauer (Order Prohibiting Involvement in NRC-Licensed Activities), 

LBP-94-40, 40 NRC 323, 329 (1994). 

A person may not be convicted of a conspiracy to conceal facts from the NRC unless 

he had a duty to reveal those facts or that he entered into an agreement to conceal 

facts from the NRC. Kenneth G. Pierce, LBP-95-4, 41 NRC 203, 218, n.50 (1995). 

The standard to be applied in determining whether to issue an order is whether 

substantial health or safety issues have been raised. Northern Indiana Public Service 

Co. (Bailly Generating Station, Nuclear-1), CLI-78-7, 7 NRC 429, 433 (1978); 

Dr. James E. Bauer (Order Prohibiting Involvement in NRC-Licensed Activities), 

LBP-94-40, 40 NRC 323, 334 (1994). See also Dr. James E. Bauer (Order Prohibiting 

Involvement in NRC-Licensed Activities), LBP-95-7, 41 NRC 323 (1995). 

Allegations about financial difficulties at an operating facility are not by themselves a 

sufficient basis for action to restrict operations. On the other hand, allegations that 

defects in safety practices have in fact occurred or are imminent would form a possible 

basis for enforcement action, whether or not the root cause of the fault was financial. 

Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power Station), CLI-83-21, 

18 NRC 157, 159-60 (1983). 

When there is no claim of a lack of understanding regarding the nature of the charges 

in an NRC Staff enforcement order, the fact that the validity of the Staff’s assertions 

have not been litigated is no reason to preclude the Staff from utilizing those charges 

as a basis for the order. The adjudicatory proceeding instituted pursuant to 

10 C.F.R. § 2.202 affords those who are adversely affected by the order with an 
GENERAL MATTERS 150 JUNE 2011 

opportunity to contest each of the charges that make up the Staff’s enforcement 

determination, an opportunity intended to protect their due process rights. The 

“unlitigated” nature of the Staff’s allegations in an enforcement order thus is not a 

constitutional due process deficiency that bars Staff reliance on those allegations as a 

component of the enforcement order. Indiana Regional Cancer Center, LBP-94-21, 

40 NRC 22, 30 (1994). 

The involvement of a licensee’s management in a violation has no bearing on whether 

the violation may have occurred; if a licensee’s employee was acting on the licensee’s 

behalf and committed acts that violated the terms of the license or the Commission’s 

regulations, the licensee is accountable for the violations, and appropriate enforcement 

action may be taken. Advanced Medical Systems, Inc. (One Factory Row, Geneva, 

Ohio 44041), CLI-94-6, 39 NRC 285 (1994), aff’d, Advanced Medical Systems, Inc. v. 

NRC, 61 F.3d 903 (6th Cir. 1995) (Table); see also Atlantic Research Corp., CLI-80-7, 

11 NRC 413 (1980). 

A license or construction permit may be modified, suspended or revoked for 

 (1) any material false statement in an application or other statement of fact 

 required of the applicant; 

 (2) conditions revealed by the application, statement of fact, inspection or 

 other means which would warrant the Commission to refuse to grant a 

 license in the first instance; 

 (3) failure to construct or operate a facility in accordance with the terms of the 

 construction permit or operating license; or 

 (4) violation of, or failure to observe, any terms and provisions of the Atomic 

 Energy Act, the regulations, a permit, a license, or an order of the 

 Commission. 

See, e.g., 10 C.F.R. § 50.100. 

Where information is presented which demonstrates an undue risk to public health and 

safety, the NRC will take prompt remedial action including shutdown of operating 

facilities. Such actions may be taken with immediate effect notwithstanding the 

Administrative Procedure Act requirements of notice and opportunity to achieve 

compliance. Petition for Emergency and Remedial Action, CLI-78-6, 7 NRC 400, 404, 

405 (1978). 

Refusal by a licensee and contractor to permit a lawful Staff investigation deemed 

necessary to assure public health and safety is serious enough to warrant the drastic 

remedy of permit suspension pending submission to investigation, since the refusal 

interferes with the Commission’s duty to assure public health and safety. Union 

Electric Co. (Callaway Plant, Units 1 & 2), LBP-78-31, 8 NRC 366, 378 (1978), aff’d

ALAB-527, 9 NRC 126 (1979). 

If a safety problem is revealed at any time during low-power operation of a facility or as 

a result of the merits review of a party’s appeal of the decision to authorize low-power 

operation, the low-power license can be suspended. Philadelphia Electric Co.

(Limerick Generating Station, Units 1 & 2), ALAB-789, 20 NRC 1443, 1447 (1984). 

See also Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Unit 1), 

CLI-81-30, 14 NRC 950 (1981). 
JUNE 2011 GENERAL MATTERS 151 

The Commission is authorized to consider a licensee’s character and integrity in 

deciding whether to continue or revoke a license. Piping Specialists, Inc., et al.

(Kansas City, MO), LBP-92-25, 36 NRC 156, 153 (1992), citing Metropolitan Edison 

Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-772, 19 NRC 1193, 1207 (1984), 

rev’d in part on other grounds, CLI-85-2, 21 NRC 282 (1985). 

The enforcement policy provides that suspensions ordinarily are not ordered where the 

failure to comply with requirements was “not willful and adequate corrective action has 

been taken.” Piping Specialists, Inc., et al. (Kansas City, MO), LBP-92-25, 36 NRC 

156 (1992). 

6.25.5 Immediately Effective Orders 

The validity of an immediately effective order is judged on the basis of information 

available to the Director at the time it was issued at the start of the proceeding. 

Nuclear Engineering Co., Inc. (Sheffield, Illinois Low-Level Radioactive Waste Disposal 

Site), CLI-80-1, 11 NRC 1, 5 (1980). See Advanced Medical Systems (One Factory 

Row, Geneva, Ohio 44041), LBP-90-17, 31 NRC 540, 542-43 n.5, 556-57 (1990), aff’d, 

CLI-94-6, 39 NRC 285 (1994), aff’d, Advanced Medical Systems, Inc. v. NRC, 61 F.3d 

903 (6th Cir. 1995) (Table). 

Issuance of an order requiring interim action is not the determination of the merits of a 

controversy. Nuclear Engineering Co., Inc. (Sheffield, Illinois Low-Level Radioactive 

Waste Disposal Site), CLI-80-1, 11 NRC 1, 6 (1980). 

Although a licensee usually should be afforded a prior opportunity to be heard before 

the Commission suspends a license or takes other enforcement action, extraordinary 

circumstances may warrant summary action prior to hearing. The Commission’s 

regulations regarding summary enforcement action are consistent with Section 9(b) 

of the Administrative Procedure Act, 5 U.S.C. § 558(c) and due process principles. 

Due process does not require that emergency action be taken only where there is 

no possibility of error; due process requires only that an opportunity for hearing 

be granted at a meaningful time and in a manner appropriate for the case. 

Advanced Medical Systems, Inc. (One Factory Row, Geneva, Ohio 44041), CLI-94-6, 

39 NRC 285, 299-300 (1994), aff’d, Advanced Medical Systems, Inc. v. NRC, 61 F.3d 

903 (6th Cir. 1995) (Table). The Commission is empowered to make a shutdown order 

immediately effective where such action is required by the public health, safety, or 

public interest. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), 

CLI-85-9, 21 NRC 1118, 1123-24 n.2 (1985). See 10 C.F.R. § 2.202(a)(5), 

implementing Administrative Procedure Act § 9(b), 5 U.S.C. 558(c). 

The Commission is obligated under the law to lift the effectiveness of an immediately 

effective shutdown order once the concerns which brought about the order have been 

adequately resolved. Metropolitan Edison Co. (Three Mile Island Nuclear Station, 

Unit 1), CLI-85-9, 21 NRC 1118, 1124 (1985). See, e.g., Pan American Airways v. 

C.A.B., 684 F.2d 31 (D.C. Cir. 1982); Northwest Airlines v. C.A.B., 539 F.2d 846 

(D.C. Cir. 1976); Air Line Pilots Ass’n v. C.A.B., 458 F.2d 846 (D.C. Cir. 1972), cert. 

denied, 420 U.S. 972 (1975). This holds true even where Licensing and Appeal 

Boards’ deliberations and decisions as to resumption of operations are pending, 

provided the issues before the Board do not implicate the public health and safety. 
GENERAL MATTERS 152 JUNE 2011 

Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-85-9, 

21 NRC 1118, 1149 (1985). 

The Director may issue an immediately effective order without prior written notice if 

(1) the public health, safety or interest so requires, or (2) the licensee’s violations are 

willful. In civil proceedings, action taken by a licensee in the belief that it was legal 

does not preclude a finding of willfulness. Nuclear Engineering Co. (Sheffield, Illinois 

Low-Level Radioactive Waste Disposal Site), CLI-79-6, 9 NRC 673, 677-78 (1979). 

Latent conditions which may cause harm in the future are a sufficient basis for issuing 

an immediately effective show cause order where the consequences might not be 

subject to correction in the future. Nuclear Engineering Co. (Sheffield, Illinois LowLevel Radioactive Waste Disposal Site), CLI-79-6, 9 NRC 673, 677 (1979), citing

Consumers Power Co. (Midland Plant, Units 1 & 2), CLI-74-3, 7 AEC 7, 10-12 (1974). 

Purported violations of agency regulations support an immediately effective order even 

where no adverse public health consequences are threatened. Nuclear Engineering 

Co. (Sheffield, Illinois Low-Level Radioactive Waste Disposal Site), CLI-79-6, 

9 NRC 673, 677-78 (1979). 

An immediately effective suspension order was found justified where the alleged 

violations involved significant license conditions and procedures that were intended to 

ensure safe handling and maintenance of devices containing a radioactive source that 

could deliver a substantial or even lethal radiation dose. The Staff could reasonably 

conclude that license suspension was required to remove the possible threat of 

adverse safety consequences to patients and workers from maintenance and service 

on teletherapy units by untrained licensee employees. Advanced Medical Systems, 

Inc. (One Factory Row, Geneva, Ohio 44041), CLI-94-6, 39 NRC 285, 314 (1994), 

aff’d, Advanced Medical Systems, Inc. v. NRC, 61 F.3d 903 (6th Cir. 1995) (Table). 

In deciding whether an immediately effective order is necessary to protect public health 

and safety, the Staff is required to make a prudent, prospective judgment at the time 

that the order is issued about the potential consequences of the apparent regulatory 

violations. A reasonable threat of harm requiring prompt remedial action, not the 

occurrence of the threatened harm itself, is all that is required to justify immediate 

action. Advanced Medical Systems, Inc. (One Factory Row, Geneva, Ohio 44041), 

CLI-94-6, 39 NRC 285 (1994), aff’d, Advanced Medical Systems, Inc. v. NRC, 

61 F.3d 903 (6th Cir. 1995) (Table). 

Where the contested issues focused on the adequacy of the evidence in the Staff’s 

knowledge when it initiated the license suspension, the Licensing Board did not err in 

limiting its consideration to the evidence amassed by the Staff before the order was 

issued. Nor is the Staff barred from relying on additional evidence gathered after an 

immediately effective order is issued to defend the continued effectiveness of that 

order; however, the Staff may not issue the order based merely on the hope that it will 

thereafter find the necessary quantum of evidence to sustain the order’s immediate 

effectiveness. Advanced Medical Systems, Inc. (One Factory Row, Geneva, Ohio 

44041), CLI-94-6, 39 NRC 285 (1994), aff’d, Advanced Medical Systems, Inc. v. NRC, 

61 F.3d 903 (6th Cir. 1995) (Table). 
JUNE 2011 GENERAL MATTERS 153 

6.25.5.1 Review of Immediate Effectiveness of Enforcement Order 

On May 12, 1992, the Commission issued a final rule concerning challenges to the 

immediate effectiveness of orders. 57 Fed. Reg. 20,194 (May 12, 1992). (See

Digest § 6.25.10). Pursuant to 10 C.F.R. § 2.202(c)(2)(i), the subject of an 

immediately effective order may, at the time the answer is filed or sooner, move the 

presiding officer to set aside the immediate effectiveness of the order. The NRC 

Staff must respond within five (5) days after receiving the motion. The Commission 

declined to specify a time limit for the presiding officer’s review of the motion and, 

instead, strongly emphasized that a presiding officer should decide the motion as 

expeditiously as possible. 57 Fed. Reg. at 20,197. The presiding officer will apply 

an adequate evidence test to evaluate the set aside motion. Adequate evidence 

exists “when facts and circumstances within the NRC Staff’s knowledge, of which it 

has reasonably trustworthy information, are sufficient to warrant a person of 

reasonable caution to believe that the charges specified in the order are true and 

that the order is necessary to protect the public health, safety, or interest.” 

57 Fed. Reg. at 20,196. The adequate evidence test does not apply to the 

determination of the merits of the immediately effective order. The presiding officer 

should rule on the merits of the immediately effective order as expeditiously as 

possible, although the presiding officer may delay the hearing for good cause. 

10 C.F.R. § 2.202(c)(2)(ii). When an immediate effectiveness determination is 

challenged, the Staff must satisfy a two-part test: it must demonstrate that adequate 

evidence – i.e., reliable, probative and substantial (but not preponderant) evidence – 

supports a conclusion that (1) the licensee violated a Commission requirement 

(10 C.F.R. § 2.202(a)(1)), and (2) the violation was “willful,” or the violation poses a 

risk to “the public health, safety, or interest” that requires immediate action (id.

§ 2.202(a)(5)). Safety Light Corp., LBP-05-2, 61 NRC 53, 61 (2005). 

When the character and veracity of the source for a Staff allegation are in doubt, a 

presiding officer will be unable to credit the source’s information as sufficiently 

reliable to provide “adequate evidence” for that allegation absent sufficient 

independent corroborating information. Eastern Testing and Inspection, Inc., 

LBP-96-9, 43 NRC 211, 219-21 (1996). 

Pursuant to 10 C.F.R. § 2.202(c)(2)(i), a person to whom the Commission has 

issued an immediately effective enforcement order may move to set aside the 

immediate effectiveness of the order on the ground that “the order, including the 

need for immediate effectiveness, is not based on adequate evidence but on mere 

suspicion, unfounded allegations, or error.” St. Joseph Radiology Associates, Inc. 

and Joseph L. Fisher, M.D., LBP-92-34, 36 NRC 317 (1992); see also United 

Evaluation Services, Inc. (Beachwood, New Jersey), LBP-02-13, 55 NRC 351, 354 

(2002). 

The movant challenging a Staff determination to make an enforcement order 

immediately effective bears the burden of going forward to demonstrate that the 

order, and the Staff’s determination that it is necessary to make the order 

immediately effective, are not supported by “adequate evidence” within the meaning 

10 C.F.R. § 2.202(c)(2)(i), but the Staff has the ultimate burden of persuasion on 

whether this standard has been met. See 55 Fed. Reg. 27,645, 27646 (1990). See 

also St Joseph Radiology Associates, Inc., LBP-92-34, 36 NRC 317, 321-22 (1992). 
GENERAL MATTERS 154 JUNE 2011 

Eastern Testing and Inspection, Inc., LBP-96-9, 43 NRC 211, 215-16 (1996); 

Aharon Ben-Haim, Ph.D., LBP-97-15, 46 NRC 60, 61 (1997). 

Under 10 C.F.R. § 2.202(c)(2)(i), to support an immediate effectiveness 

determination for an enforcement order, besides showing that the bases for the 

order are supported by “adequate evidence,” the Staff must show there is a need for 

immediate effectiveness that is supported by “adequate evidence.” That need can 

be established by showing either that the alleged violations or the conduct 

supporting the violations is willful or that the public health, safety, or interest requires 

immediate effectiveness. Eastern Testing and Inspection, Inc., LBP-96-9, 43 NRC 

211, 227 (1996). 

Pursuant to 10 C.F.R. § 2.202(c)(2)(i), a set-aside motion must state with 

particularity the reasons why the enforcement order is not based upon adequate 

evidence and the motion must be accompanied by affidavits or other evidence relied 

upon by the movant. St. Joseph Radiology Associates, Inc., LBP-92-34, 36 NRC 

317, 321-22 (1992); United Evaluation Services, Inc. (Beachwood, New Jersey), 

LBP-02-13, 55 NRC 351, 354 (2002). 

In order to set aside the immediate effectiveness of an enforcement order, a party 

served with an enforcement order must file a timely written answer, under oath, that 

admits or denies each Staff allegation or charge in the enforcement order and sets 

forth the facts and legal arguments on which the party relies in claiming that the 

order should not have been issued. Failure to comply with the requirements of 

10 C.F.R. 2.202(b) may result in dismissal of the proceeding. St. Joseph Radiology 

Associates, Inc. and Joseph L. Fisher, M.D., LBP-93-14, 38 NRC 18 (1993). 

A Licensing Board will uphold the immediate effectiveness of the order if it finds that 

there is adequate evidence to support immediate effectiveness. The adequate 

evidence test is met when the “facts and circumstances within the NRC Staff’s 

knowledge, of which it has reasonably trustworthy information, are sufficient to 

warrant a person of reasonable caution to believe that the charges specified in the 

order are true and that the order is necessary to protect the public health, safety, or 

interest.” 57 Fed. Reg. 20,194, 20,196 (May 12, 1992). St. Joseph Radiology 

Associates, Inc. and Joseph L. Fisher, M.D., LBP-93-14, 38 NRC 18 (1993). United 

Evaluation Services, Inc. (Beachwood, New Jersey), LBP-02-13, 55 NRC 351, 354 

(2002). The Commission likened the adequate evidence standard to probable 

cause, which is described as “less than must be shown in trial, but...more than 

uncorroborated suspicion or accusation.” United Evaluation Services, Inc.

(Beachwood, New Jersey), LBP-02-13, 55 NRC 351, 354 (2002), citing, Horne 

Brothers, Inc. v. Laird, 463 F.2d 1268, 1271 (D.C. Cir. 1972). 

In determining whether the Director abused his discretion in issuing an immediately 

effective order, a Licensing Board will evaluate the reasonableness of the Director’s 

decision in light of the facts available to the Director at the time he issued his 

decision. Advanced Medical Systems (One Factory Row, Geneva, Ohio 44041), 

LBP-90-17, 31 NRC 540, 556-57 (1990), aff’d, CLI-94-6, 39 NRC 285 (1994), aff’d, 

61 F.3d 903 (6th Cir. 1995) (Table). 

The standard by which the immediate effectiveness of an order is judged may differ 

from the standard ultimately applied after a full adjudication on the merits of an 
JUNE 2011 GENERAL MATTERS 155 

enforcement order. The review of an order’s immediate effectiveness permits such 

orders to be based on preliminary investigation or other emerging information that is 

reasonably reliable and that indicates the need for immediate action under the 

criteria in 10 C.F.R. § 2.202. In accordance with the Commission’s rulemaking on 

the procedures for review of the immediate effectiveness of enforcement orders, the 

basic test is “adequate evidence,” a test similar to the one used for probable cause 

for an arrest, warrant, or preliminary hearing. Advanced Medical Systems, Inc. (One 

Factory Row, Geneva, Ohio 44041), CLI-94-6, 39 NRC 285 (1994), aff’d, Advanced 

Medical Systems, Inc. v. NRC, 61 F.3d 903 (6th Cir. 1995) (Table); Aharon BenHaim, Ph.D., LBP-97-15, 46 NRC 60, 63 (1997). 

The “adequate evidence” test is intended to strike a balance between the interest of 

the Commission in protecting the public health, safety, or interest and an affected 

party’s interest in protection against arbitrary enforcement action. The test is 

intended only as a preliminary procedural safeguard against the ordering of 

immediately effective action based on clear error, unreliable evidence, or unfounded 

allegations. Advanced Medical Systems, Inc. (One Factory Row, Geneva, Ohio 

44041), CLI-94-6, 39 NRC 285 (1994), aff’d, Advanced Medical Systems, Inc. v. 

NRC, 61 F.3d 903 (6th Cir. 1995) (Table). 

In considering whether there is probable cause for an arrest, courts have held that 

information supplied by an identified ordinary citizen witness may be presumed 

reliable. See, e.g., McKinney v. George, 556 F.Supp. 645, 648 (N.D. Ill. 1983) 

(citing cases), aff’d, 726 F.2d 1183 (7th Cir. 1984). In determining whether there is 

“adequate evidence” within the meaning of 10 C.F.R. §2.202(c)(2)(i) to support the 

immediate effectiveness of an enforcement order, applying this presumption to a 

witness who is corroborating a family member’s allegations may be inappropriate 

because that relationship creates a possible bias that also brings the corroborating 

witness’ reliability into substantial question. Eastern Testing and Inspection, Inc., 

LBP-96-9, 43 NRC 211, 221 (1996). 

Absent a showing that provides some reasonable cause to believe that, because of 

bias or mistake, an agency inspector cannot be considered a credible observer, 

inspector’s direct personal observations should be credited in considering whether 

allegations based on those observations are supported by “adequate evidence” 

within the meaning of 10 C.F.R. § 2.202(c)(2)(i). This is based on the accepted 

presumption that a government officer can be expected faithfully to execute his or 

her official duties. Eastern Testing and Inspection, Inc., LBP-96-9, 43 NRC 211, 

225 (1996) (citing United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 

(1926)). 

Claims of a movant under 10 C.F.R. § 2.202(c)(2)(i) may properly suggest the 

existence of factual disputes, but they may not be sufficient to demonstrate lack of 

probable cause for a Staff immediately effective order. Aharon Ben-Haim, Ph.D., 

LBP-97-15, 46 NRC 60, 64 (1997). 

The Commission’s supervisory role over licensing and enforcement proceedings 

permits it, on its own initiative, to lift the immediate effectiveness of a license 

suspension order issued by the Staff. Safety Light Corp., CLI-05-7, 61 NRC 69, 

69-70 (2005). 
GENERAL MATTERS 156 JUNE 2011 

6.25.6 Issues in Enforcement Proceedings 

The agency alone has power to develop enforcement policy and allocate resources in 

a way that it believes is best calculated to reach statutory ends. The NRC can develop 

policy that has licensees consent to, rather than contest, enforcement proceedings. A 

Director may set forth and limit the questions to be considered in an enforcement 

proceeding. Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, 

Units 1 & 2), CLI-80-10, 11 NRC 438, 441 (1980). 

In an enforcement proceeding, once the licensee has voluntarily complied with the 

Staff’s enforcement order requiring cleanup and decontamination of the licensee’s 

byproduct materials facility, the controverted issue upon which a proceeding may be 

based – whether the order was justified – has become moot. Advanced Medical 

Systems, Inc. (One Factory Row, Geneva, Ohio 44041), LBP-92-36, 36 NRC 366, 368 

(1992), review denied, CLI-93-8, 37 NRC 181 (1993). 

To justify further inquiry into a claim of discriminatory enforcement, the licensee must 

show both that other similarly situated licensees were treated differently and that no 

rational reason existed for the different treatment. Advanced Medical Systems, Inc.

(One Factory Row, Geneva, Ohio 44041), CLI-94-6, 39 NRC 285 (1994), aff’d, 

Advanced Medical Systems, Inc. v. NRC, 61 F.3d 903 (6th Cir. 1995) (Table). 

The Commission may limit the issues in enforcement proceedings to whether the facts 

as stated in the order are true and whether the remedy selected is supported by those 

facts. Boston Edison Co. (Pilgrim Nuclear Power Station), CLI-82-16, 16 NRC 44, 45 

(1982), aff’d sub nom. Bellotti v. NRC, 725 F.2d 1380 (D.C. Cir 1983); Public Service 

Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), CLI-80-10, 

11 NRC 438, 441-442 (1980); Sequoyah Fuels Corp. (UF6 Production Facility), 

CLI-86-19, 24 NRC 508, 512 n.2 (1986). 

When violation of ambiguous plant procedures is alleged by NRC Staff in an 

enforcement proceeding, it is appropriate to receive evidence from plant operators to 

determine how those procedures were interpreted by them. It is also appropriate to 

interpret the procedures in light of company actions in cases of alleged violations of the 

same procedures, as reflected in official records. It is not appropriate to sustain an 

enforcement action in which the operator did not act willfully because he reasonably 

believed he had complied with plant procedures. Kenneth G. Pierce, LBP-95-4, 

41 NRC 203, 212 (1995). 

When a person is charged with improperly stating under oath that he had failed to 

remember facts about a meeting or conversation, it is important to examine precisely 

what that person was doing at the time and how strong others’ memories are before 

concluding that he had lied. Kenneth G. Pierce, LBP-95-4, 41 NRC 203, 221-24 

(1995). 

Licensing Boards have no jurisdiction to enforce license conditions unless they are 

the subject of an enforcement action initiated pursuant to 10 C.F.R. § 2.202. Gulf 

States Utilities Co. (River Bend Station, Unit 1), LBP-94-3, 39 NRC 31 (1994); aff’d, 

CLI-94-10, 40 NRC 43 (1994). 
JUNE 2011 GENERAL MATTERS 157 

A decision under Section 2.206 on a request for a show cause order is no more than 

the decision of an NRC Staff Director and thus does not constitute an adjudicatory 

order under Section 189.b. of the AEA and cannot serve as the basis of a valid 

contention in an enforcement proceeding. Pacific Gas & Electric Co. (Diablo Canyon 

Nuclear Plant, Units 1 & 2), LBP-93-9, 37 NRC 433 (1993). 

No further consideration need be given to the potential willful nature of license 

violations where an order’s immediate effectiveness was not sustained on the basis of 

willfulness and where the licensee suffers no other collateral effects of the order. 

Advanced Medical Systems, Inc. (One Factory Row, Geneva, Ohio 44041), CLI-94-6, 

39 NRC 285 (1994), aff’d, Advanced Medical Systems, Inc. v. NRC, 61 F.3d 903 (6th 

Cir. 1995) (Table). 

In Geo-Tech Associates (Geo-Tech Laboratories), CLI-92-14, 36 NRC 221 (1992), the 

Commission provided guidance on any hearing held on the issue of an order revoking 

materials license for failure to pay the annual license fee required by 10 C.F.R. Part 

171. A hearing request on enforcement sanctions for failure to pay license fees will be 

limited in scope to the issue of whether the licensee’s fee was properly assessed (i.e., 

was licensee placed in the proper category; was licensee charged the proper fee for 

that category; was licensee granted a partial or total exemption from the fee by the 

NRC Staff) and challenges to the fee schedule or its underlying methodology are not 

properly challenged in this type of proceeding, since they were established by 

rulemaking which an adjudicatory proceeding cannot amend. 

6.25.7 Burden of Proof 

The AEA intends the party seeking to build or operate a nuclear reactor to bear the 

burden of proof in any Commission proceeding bearing on its application to do so, 

including a show cause proceeding on a construction permit. Northern Indiana Public 

Service Co. (Bailly Generating Station, Nuclear 1), ALAB-619, 12 NRC 558, 571 

(1980). 

The burden of proof in a show cause proceeding with respect to a construction permit 

is on the permit holder. Consumers Power Co. (Midland Plant, Units 1 & 2), 

ALAB-283, 2 NRC 11 (1975). As to safety matters this is so until the award of a fullterm operating license. Dairyland Power Coop. (La Crosse Boiling Water Reactor), 

LBP-81-7, 13 NRC 257, 264-65 (1981). However, the burden of going forward with 

evidence “sufficient to require reasonable minds to inquire further” is on the person 

who sought the show cause order. Consumers Power Co. (Midland Plant, Units 1 & 2), 

ALAB-315, 3 NRC 101, 110-11 (1976). 

The Commission has never adopted the “clear and convincing” evidence standard as 

the evidentiary yardstick in reaching the ultimate merits of an enforcement proceeding, 

nor is it required to so under the AEA or the Administrative Procedure Act. NRC 

administrative proceedings have generally relied upon the “preponderance of the 

evidence” standard in reaching the ultimate conclusions after a hearing to resolve the 

proceeding. Advanced Medical Systems, Inc. (One Factory Row, Geneva, Ohio 

44041), CLI-94-6, 39 NRC 285 (1994), aff’d, Advanced Medical Systems, Inc. v. NRC, 

61 F.3d 903 (6th Cir. 1995) (Table). 
GENERAL MATTERS 158 JUNE 2011 

6.25.8 Licensing Board Review of Proposed Sanctions 

In making a determination about whether a license suspension or modification order 

should be sustained, a presiding officer must undertake an evaluative process that may 

involve assessing, among other things, whether the bases assigned in the order 

support it both in terms of the type and duration of the enforcement action. As the 

Commission noted, “the choice of sanction is quintessentially a matter of the agency’s 

sound discretion.” Advanced Medical Systems, Inc. (One Factory Row, Geneva, Ohio 

44041), CLI-94-6, 39 NRC 285, 312 (1994), aff’d, Advanced Medical Systems, Inc. v. 

NRC, 61 F.3d 903 (6th Cir. 1995)(Table) (footnote omitted). In this regard, a presiding 

officer’s review of an NRC Staff enforcement action would be limited to whether the 

Staff’s choice of sanction constituted an abuse of discretion. And, just as with the NRC 

Staff’s initial determination about imposition of the enforcement order, a relevant factor 

may be the public health and safety significance of the bases specified in the order. 

Indiana Regional Cancer Center, LBP-94-21, 40 NRC 22, 34 n.5 (1994). 

A Licensing Board may terminate an enforcement proceeding when the licensee 

withdraws its challenge to the revocation of its license. The Board should not vacate 

for mootness any prior decisions in the proceeding when no appeals of those prior 

decisions are extant. Wrangler Laboratories, LBP-91-37, 34 NRC 196, 197 (1991). 

One or more of the bases put forth by the NRC Staff as support for an enforcement 

order may be subject to dismissal if it is established they lack a sufficient nexus to the 

regulated activities that are the focus of the Staff’s enforcement action. Indiana 

Regional Cancer Center, LBP-94-21, 40 NRC 22, 31 (1994). 

A Staff action to relax or rescind the conditions in an enforcement order that is the 

subject of an ongoing adjudication would be subject to review by the presiding officer 

with input from all parties to the proceeding. Sequoyah Fuels Corp. and General 

Atomics (Gore, OK, Site Decontamination and Decommissioning Funding), LBP-94-5, 

39 NRC 54 (1994); aff’d, CLI-94-12, 40 NRC 64 (1994). 

Review of a show cause order is limited to whether the Director of Nuclear Reactor 

Regulation abused his discretion. Northern Indiana Public Service Company (Bailly 

Generating Station, Nuclear-1), CLI-78-7, 7 NRC 429, 433 (1978). 

It is not likely that, after a lengthy evidentiary hearing, a Board would agree with the 

Director of the Office of Nuclear Material Safety and Safeguards and in every detail. 

Nor is that necessary in order to sustain the Director’s decision. Atlantic Research 

Corp. (Alexandria, Virginia), ALAB-594, 11 NRC 841, 848-49 (1980) (the adjudicatory 

hearing in a civil penalty proceeding is essentially a trial de novo, subject only to the 

principle that the Board may not assess a greater penalty than the Staff). See Piping 

Specialists, Inc., (Kansas City, MO), LBP-92-25, 36 NRC 156, review declined, CLI-92-

16, 39 NRC 351 (1992). 
JUNE 2011 GENERAL MATTERS 159 

6.25.9 Stay of Enforcement Proceedings 

Claiming a constitutional deprivation arising from a delayed adjudication generally 

requires some showing of prejudice. Dr. James E. Bauer (Order Prohibiting 

Involvement in NRC-Licensed Activities), LBP-94-40, 40 NRC 323, 330 (1994), citing

Oncology Services Corp., CLI-93-17, 38 NRC 44, 50-51 (1993). 

Commission regulations require that hearings regarding immediately effective 

enforcement orders be held expeditiously. David Geisen, CLI-06-19, 64 NRC 9, 12 

(2006) (citing 10 C.F.R. § 2.202(c)(1)). 

The pendency of a related criminal investigation can provide an appropriate basis for 

postponing litigation on a Staff enforcement order. Dr. James E. Bauer (Order 

Prohibiting Involvement in NRC-Licensed Activities), LBP-94-40, 40 NRC 323, 330-31 

(1994). 

The NRC’s mere assertion that it wishes to protect a pending criminal prosecution does 

not, without more, justify holding the NRC’s parallel administrative enforcement 

proceeding in abeyance. The Staff, as the party supporting abeyance, must make at 

least some showing of potential detrimental effect on the criminal case. 

Andrew Siemaszko, CLI-06-12, 63 NRC 495 (2006). The Commission concluded that 

the Staff and the Department of Justice (DOJ) met their burden of making at least 

some showing of potential harm where the NRC enforcement proceeding was likely to 

conclude less than a month prior to the start of the criminal trial and hearing and 

prehearing activities would interfere with DOJ’s efforts to prepare witnesses for trial 

because a great number of the same witnesses would be called to testify in both 

proceedings. A showing of the potential inability of the DOJ to adequately prepare 

witnesses for the criminal trial because of the NRC proceeding is sufficient justification 

for a stay. David Geisen, CLI-07-6, 65 NRC 112, 116-118 (2007). 

The Commission, as a matter of policy memorialized in a formal Memorandum of 

Understanding with DOJ, defers to DOJ when it seeks a delay in NRC enforcement 

proceedings pending the conclusion of DOJ’s own criminal investigations or 

proceedings. The Commission does not lightly second-guess DOJ’s views on whether, 

or how, premature discussions might affect its criminal prosecution. 

Andrew Siemaszko, CLI-06-12, 63 NRC at 504. 

The presiding officer may delay an enforcement proceeding for good cause. 

10 C.F.R. § 2.202(c)(2)(ii). In determining whether good cause exists, the presiding 

officer must consider both the public interest as well as the interests of the person 

subject to the immediately effective order. The factors to be considered in balancing 

the competing interests include (1) length of delay, (2) reason for the delay, (3) risk of 

erroneous deprivation, (4) assertion of one’s right to prompt resolution of the 

controversy, (5) prejudice to the licensee, including harm to the licensee’s interests and 

harm to the licensee’s ability to mount an adequate defense. Oncology Service Corp., 

CLI-93-17, 38 NRC 44, 50-51 (1993); followed by Licensing Board in third request for 

stay by NRC Staff in Oncology proceeding, LBP-93-20, 38 NRC 130 (1993); 

Andrew Siemaszko, CLI-06-12, 63 NRC 495, 500 (2006). 

The determination of whether the length of delay in an enforcement proceeding is 

excessive depends on the facts of the particular case and the nature of the proceeding. 
GENERAL MATTERS 160 JUNE 2011 

The risk of erroneous deprivation is reduced if the licensee is given an opportunity to 

request that the presiding officer set aside the immediate effectiveness of the 

suspension order by challenging whether the suspension order, including the need for 

immediate effectiveness, is based on adequate evidence. Oncology Service Corp., 

CLI-93-17, 38 NRC 44, 57 (1993); followed by Licensing Board in third request for stay 

by NRC Staff in Oncology proceeding, LBP-93-20, 38 NRC 130 (1993); cf. David 

Geisen, CLI-07-6, 65 NRC 119 (2007). 

Staff’s showing of possible interference with an investigation being conducted by the 

NRC Office of Investigations and a strong interest in protecting the integrity of the 

investigation in conjunction with a demonstration that the risk of erroneous deprivation 

has been reduced weighs heavily in the Staff’s favor. However, a licensee’s vigorous 

opposition to a stay and its insistence on a prompt adjudicatory hearing are entitled to 

strong weight, irrespective of whether the licensee failed to challenge the basis for the 

immediate effectiveness of the Staff’s suspension order. Oncology Service Corp., 

CLI-93-17, 38 NRC 44, 58 (1993). Nevertheless, without a particularized showing of 

harm to the licensee’s interests, licensee’s vigorous opposition to a stay does not tip 

the scale in favor of the licensee when balancing the competing interests. CLI-93-17 at 

59-60. The Commission’s decision was followed by the Licensing Board in ruling on a 

third NRC Staff request for a stay in the Oncology proceeding, LBP-93-20, 38 NRC 130 

(1993). 

Although it is not unusual for an adjudicatory proceeding and an investigation on the 

same general subject matter to proceed simultaneously, the Commission has been 

willing to stay parallel proceeding if a party shows substantial prejudice, e.g., where 

discovery in an adjudicatory proceeding would compromise an investigation. Georgia 

Power Co. (Vogtle Electric Generating Plant, Units 1 & 2), CLI-95-9, 41 NRC 404, 405 

(1995). 

The target of an enforcement action has a strong argument regarding harm from delay 

in enforcement proceedings where there is direct causal nexus between the 

enforcement order and the target’s firing. David Geisen, CLI-06-19, 64 NRC 9, 12 

(2006). 

The Commission has found insufficient basis for holding an enforcement proceeding in 

abeyance where the DOJ affidavit in support of such an abeyance (i.e., justifying why 

continuation of the enforcement proceeding could jeopardize a parallel criminal 

proceeding) includes only generalities rather than specific supporting facts, which are 

essential in justifying such a request. David Geisen, CLI-06-19, 64 NRC 9, 12-14 

(2006) (citing Andrew Siemaszko, CLI-06-12, 63 NRC 495, 503 (2006)). The strength 

of this argument, however, is undermined when the target of the enforcement action is 

also under a grand jury indictment, and thus re-employment with an NRC-licensee can 

likely occur only if both the enforcement action and the criminal actions are concluded 

in the target’s favor. David Geisen, CLI-07-6, 65 NRC 112, 120 (2007). 

While the Commission is generally inclined to accommodate DOJ’s requests for 

abeyance of NRC enforcement proceedings pursuant to the Memorandum of 

Understanding (MOU) between the agencies, the MOU does not entail an ironclad 

guarantee of such accommodation. The MOU reflects a clear understanding that DOJ 

must provide factual justification for delays in NRC adjudication (and related 
JUNE 2011 GENERAL MATTERS 161 

impositions on the enforcement target), via appropriate affidavits or testimony. 

David Geisen, CLI-06-19, 64 NRC 9, 13 (2006). 

6.25.10 Civil Penalty Proceedings 

Section 234 of the AEA directs the Commission to afford an opportunity for a hearing to 

a licensee to whom a notice has been given of an alleged violation. Pittsburgh-Des 

Moines Steel Co., ALJ-78-3, 8 NRC 649, 653 (1978). 

The Commission established detailed procedures and considerations to be undertaken 

in the assessment of civil penalties by: (1) notice of proposed rulemaking 

(36 Fed. Reg. 19,122, Aug. 26, 1971), and (2) amendment of the Rules of Practice to 

include the factors which will determine the assessment of civil penalties. 

(35 Fed. Reg. 16,894, Dec. 17, 1970). These two actions fulfill the legal requirements 

for standards utilized in civil penalty proceedings. Radiation Technology, Inc., 

ALJ-78-4, 8 NRC 655, 663 (1978), aff’d, ALAB-567, 10 NRC 533 (1979). See also

Pittsburgh-Des Moines Steel Company, ALJ-78-3, 8 NRC 649, 653 (1978). 

Under Section 234 of the AEA, 42 U.S.C. § 2282(b), and 10 C.F.R. § 2.205 of the 

Commission’s regulations, a person subject to imposition of a civil penalty must first be 

given written notice of: (1) the specific statutory, regulatory or license violations; (2) the 

date, facts, and nature of the act or omission with which the person is charged; and 

(3) the proposed penalty. The person subject to the fine must then be given an 

opportunity to show in writing why the penalty should not be imposed. Metropolitan 

Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), CLI-82-31, 16 NRC 1236, 

1238 (1982). 

Although recognizing the Staff’s broad discretion in determining the amount of a civil 

penalty, results reached in other cases may nonetheless be relevant in determining 

whether the Staff may have abused its discretion in this case. A nexus to the current 

proceeding would have to be shown, and differing circumstances might well explain 

seemingly disparate penalties in various cases. Radiation Oncology Center at Marlton

(Marlton, NJ), LBP-95-25, 42 NRC 237, 239 (1995). 

When a hearing is requested to challenge the imposition of civil penalties, the officer 

presiding at the hearing, not the Staff, decides on the basis of the record whether the 

charges are sustained and whether civil penalties are warranted. Radiation 

Technology, Inc., ALAB-567, 10 NRC 533, 536 (1979). 

Civil penalties are not invalidated by the absence of a formally promulgated schedule 

of fees when the penalties imposed are within statutory limits and in accord with 

general criteria published by the Commission. Radiation Technology, ALAB-567, 

10 NRC 533, 541 (1979). 

One factor which a Licensing Board may consider in determining the amount of a civil 

penalty is the promptness and extent to which a licensee takes corrective action. 

Certified Testing Laboratories, Inc., LBP-92-2, 35 NRC 20, 44 (1992). 

The five-year statute of limitations on civil penalty actions imposed by 28 U.S.C. § 2462 

commences when the claim first accrues. This requirement is satisfied by the issuance 

of a Notice of Violation and Proposed Imposition of Civil Penalty within five years of the 
GENERAL MATTERS 162 JUNE 2011 

date of the underlying violation. 3M Company v. Browner, 17 F.3d 1453, 1457-63 

(D.C. Cir.1994); See also Johnson v. SEC, 87 F.3d 484 (D.C. Cir. 1996). With respect 

to continuing violations, absent fraud or concealment of the violation, the claim first 

accrues when the course of conduct constituting the violation ceases. See Newell 

Recycling Co. v. U.S. EPA, 231 F.3d 204, 206 (5th Cir. 2000). In some circumstances, 

equitable considerations permit tolling the five-year period. For example, if the 

fraudulent conduct of the defendant caused the injured party to remain ignorant of the 

violation, without any fault or lack of due diligence, the limitations period does not begin 

to run until the fraud is discovered. Bailey v. Glover, 88 U.S. (21 Wall.) 342 (1874); 

Hobson v. Wilson, 737 F.2d 1, 34 (D.C. Cir. 1984). Furthermore, when a licensee is 

required to report a violation, the limitation does not run until the licensee reports the 

violation. See Public Interest Research Group v. Powell Duffryn Terminals, 

913 F.2d 64, 75 (3rd Cir. 1990); United States v. ALCOA, 824 F.Supp. 640, 645 

(D.W.Tex. 1993). 

A civil penalty may be imposed on a licensee even though there is no evidence of 

(1) malfeasance, misfeasance, or nonfeasance by the licensee, or (2) a failure by the 

licensee to take prompt corrective action. In such circumstances, a civil penalty may 

be considered proper if it might have the effect of deterring future violations of 

regulatory requirements or license conditions by the licensee, other licensees, or their 

employees. It does not matter that the imposition of the civil penalty may be viewed as 

punitive. Atlantic Research Corp., CLI-80-7, 11 NRC 413 (1980), vacating ALAB-542, 

9 NRC 611 (1979). 

An adjudicatory hearing in a civil penalty proceeding is essentially a trial de novo. The 

penalty assessed by the Staff constitutes the upper bound of the penalty which may be 

imposed after the hearing, but the Board may substitute its own judgment for that of the 

Director. Atlantic Research Corporation, ALAB-594, 11 NRC 841, 849 (1980). 

The grounds for the Staff’s finding of a whistleblower violation form the upper 

jurisdictional boundary for the grounds available to a Licensing Board in determining 

whether a violation has occurred. These bounds are established in the enforcement 

order. Tennessee Valley Authority (Watts Bar Nuclear Plant, Unit 1; Sequoyah Nuclear 

Plant, Units 1 & 2; Browns Ferry Nuclear Plant, Units 1, 2, & 3), CLI-04-24, 60 NRC 

160, 202-203 (2004). 

Civil penalty adjudications are de novo proceedings. The Licensing Board may 

substitute its own judgment for that of the Director and is entirely free to mitigate or 

remit the assessed penalty. The Commission’s Enforcement Policy does not give 

exclusive discretion to the Staff in determining the amount of a civil penalty. TVA, 

CLI-04-24, 60 NRC at 217-218. 

Where the Staff is detailed and complete in explaining its method of calculating the 

amount of civil penalty and the licensee has not controverted the Staff’s reasoning, 

the amount of the civil penalty will stand. Cameo Diagnostic Centre, Inc., LBP-94-34, 

40 NRC 169, 175-76 (1994). 

A licensee is responsible for all violations committed by its employees, whether it knew 

or could have known of them. There is no need to show scienter. One is not 

exempted from regulation by operating through an employee. Atlantic Research Corp., 
JUNE 2011 GENERAL MATTERS 163 

CLI-80-7, 11 NRC 413 (1980); Pittsburgh-Des Moines Steel Co., ALJ-78-3, 8 NRC 649, 

651-52 (1978). 

For treatment of the administrative record of an NRC civil penalty action in a collection 

action in federal district court, see NRC v. Radiation Technology, 519 F.Supp. 1266 

(D.N.J. 1981). 

6.25.11 Settlement of Enforcement Proceedings 

In enforcement proceedings, settlements between the Staff and the licensee, once a 

matter has been noticed for hearing, are subject to review by the presiding officer. 

10 C.F.R. § 2.203. Thus, once an enforcement order has been set for hearing at a 

licensee’s request, the NRC Staff no longer has untrammeled discretion to offer or 

accept a compromise or settlement. Sequoyah Fuels Corp. and General Atomics

(Gore, OK, Site), CLI-94-12, 40 NRC 64, 71 (1994). 

Where the Staff in an enforcement settlement does not insist on strict compliance with 

a particular Commission regulation, it is neither waiving the regulation at issue nor 

amending it, but is instead merely exercising discretion to allow an alternative means of 

meeting the regulation’s goals. Sequoyah Fuels Corp. and General Atomics (Gore, 

OK, Site), CLI-97-13, 46 NRC 195, 221 (1997). 

6.25.12 Inspections and Investigations 

The Commission has both the duty and the authority to make such investigations and 

inspections as it deems necessary to protect the public health and safety. Union 

Electric Co. (Callaway Plant, Units 1 & 2), LBP-78-31, 8 NRC 366, 374 (1978), aff’d, 

ALAB-527, 9 NRC 126 (1979). 

Because the atomic energy industry is a pervasively regulated industry, lawful 

inspections of licensee’s activities are within the warrantless search exception for a 

“closely regulated industry” delineated by the Supreme Court in Marshall v. Barlow’s.

Inc., 436 U.S. 307 (1978). A licensee’s submission to all applicable NRC regulations 

constitutes advance consent to lawful inspections; a search warrant is not required for 

such inspections. Union Electric Co. (Callaway Plant, Units 1 & 2), LBP-78-31, 

8 NRC 366, 377 (1978), aff’d, ALAB-527, 9 NRC 126 (1979); Radiation Technology, 

Inc., ALAB-567, 10 NRC 533, 540 (1979); U.S. v. Radiation Technology, Inc., 

519 F.Supp. 1266, 1288 (D.N.J. 1981). 

Proposed investigation of the discharge by a licensee’s contractor of a worker who 

reported alleged construction problems to the NRC was within the NRC’s statutory and 

regulatory authority to assure public health and safety. The Commission should not 

defer such an inquiry into the discharge of a worker under a proper exercise of its 

authority to investigate safety related matters merely because such investigation may 

touch on matters that are the subject of a grievance proceeding between the licensee 

and the worker. Union Electric Co. (Callaway Plant, Units 1 & 2), LBP-78-31, 8 NRC 

366, 376-78 (1978), aff’d, ALAB-527, 9 NRC 126 (1979). 

An agency investigation must be conducted for a legitimate purpose. However, 

Section 161.c. of the AEA, 42 U.S.C. § 2201(c), does not require that the precise 

nature and extent of the investigation be articulated in a specific provision of the AEA 
GENERAL MATTERS 164 JUNE 2011 

or the Energy Reorganization Act. Rather, AEA § 161.c. makes clear that an NRC 

investigation is proper if it “assist[s] [the NRC] in exercising any authority provided in 

this,...or any regulations or orders issued thereunder.” U.S. v. Construction Products 

Research, Inc., 73 F.3d 464, 471 (2nd Cir. 1996). 

Inspections of licensed activities during company-scheduled working hours are 

reasonable per se. Commission inspections may not be limited to “office hours.” In re

Radiation Technology, Inc., ALAB-567, 10 NRC 533, 540 (1979); U.S. v. Radiation 

Technology, Inc., 519 F.Supp. 1266, 1288 (D.N.J. 1981). 

The NRC Staff is authorized by the Commission to issue subpoenas pursuant to 

Section 161.c. of the AEA where necessary or appropriate for the conduct of 

inspections or investigations. Houston Lighting and Power Co. (South Texas Project, 

Units 1 & 2), CLI-87-8, 26 NRC 6, 9 (1987). The NRC Staff may issue a subpoena to a 

person who is not an NRC licensee under Section 161.c. of the AEA, where the 

recipient of the subpoena has information that would help determine whether a 

properly issued NRC regulation was violated by the former employee of a licensee. 

Rene Chun, CLI-04-34, 60 NRC 607 (2004). 

The DOJ guidelines for issuing subpoenas to members of the media do not vest any 

rights in members of the media. Thus, the fact that a subpoena does not satisfy the 

DOJ guidelines does not mean that a federal court would refuse to enforce the 

subpoena. Further, while members of the media enjoy some protection from subpoena 

under the First Amendment “reporter’s privilege,” the First Amendment interest 

protected by this “qualified privilege” is narrowed and easier to overcome when 

confidential sources are not involved. Specifically, where non-confidential sources are 

involved and information is sought from a non-party press entity, the privilege can be 

overcome if the party issuing the subpoena can show that the materials at issue are of 

likely relevance to a significant issue in the case and are not reasonably obtainable 

from other available sources. (citing Gonzales v. NBC, 194 F.3d 29, 36 (2d Cir. 1999). 

Id.

6.25.13 False Statements 

The Commission depends on licensees and applicants for accurate information to 

assist the Commission in carrying out its regulatory responsibilities and expects 

nothing less than full candor from licensees and applicants. Randall C. Orem, D.O., 

CLI-93-14, 37 NRC 423, 427 (1993); Hamlin Testing Laboratories, Inc., 2 AEC 423, 

428 (1964), aff’d, 357 F.2d 632 (6th Cir.1966). A seminal case on false statements in 

the context of NRC regulation is Virginia Electric and Power Co. (North Anna Power 

Station, Units 1 & 2), CLI-76-22, 4 NRC 480 (1976), aff’d, 571 F.2d 1289 

(4th Cir.1978). 

The penalties that flow from making a false statement to a presiding officer and the 

NRC Staff, including the possibility of criminal violations under 18 U.S.C. § 1001 and 

agency enforcement actions, can be sufficient to ensure compliance without the 

additional step of incorporating into a decision a list of commitments that an applicant 

has clearly acknowledged it accepts and will fulfill. Private Fuel Storage, L.L.C.

(Independent Spent Fuel Storage Installation), LBP-00-35, 52 NRC 364, 410 (2000), 

citing Florida Power and Light Co. (Turkey Point Nuclear Generating Plants, 
JUNE 2011 GENERAL MATTERS 165 

Units 3 & 4), ALAB-898, 28 NRC 36, 41 n.20 (1988) (holding that there was no need to 

incorporate applicant commitment in order given potential Staff enforcement). 

6.25.14 Independence of Inspector General 

Congress enacted the Inspector General Act of 1978 in order “to more effectively 

combat fraud, abuse, waste and mismanagement in the programs and operations 

of...departments and agencies.” NRC v. Federal Labor Relations Authority, 

25 F.3d 229, 233 (4th Cir. 1994), citing S. Rep. No. 1071, 95th Cong., 2d Sess. 1 

(1978), reprinted in 1978 USSCAN 2676. One of the most important goals of the 

Inspector General Act was to make Inspectors General independent enough that their 

investigations and audits would be wholly unbiased. The bulk of the Inspector General 

Act’s provisions are accordingly devoted to establishing the independence of the 

Inspectors General from the agencies that they oversee. Thus, shielded with 

independence from agency interference, the Inspector General in each agency is 

entrusted with the responsibility of auditing and investigating the agency, a function 

which may be exercised in the judgment of the Inspector General as each deems it 

“necessary or desirable.” 5 U.S.C. App. 3 § 6(a)(2). NRC v. Federal Labor Relations 

Authority, 25 F.3d at 234. 

To allow the agency and the union, which represents the agency’s employees, to 

bargain over restrictions that would apply in the course of the Inspector General’s 

investigatory interviews in the agency would impinge on the statutory independence of 

the Inspector General, particularly when it is recognized that investigations within the 

agency are conducted solely by the Office of the Inspector General. NRC v. Federal 

Labor Relations Authority, 25 F.3d 229, 234 (4th Cir. 1994). 

6.25.15 Whistleblower Protection 

Licensing Board findings of fact are reviewed by the Commission under the “clearly 

erroneous” standard, and such deference is particularly great where a Board bases its 

findings of fact in significant part on the credibility of witnesses. Whistleblowing 

discrimination cases are, by their nature, peculiarly fact-intensive and dependent on 

witness credibility. Fact-based appeals in a whistleblower case face an uphill climb 

before the Commission. Tennessee Valley Authority (Watts Bar Nuclear Plant, Unit 1; 

Sequoyah Nuclear Plant, Units 1 & 2; Browns Ferry Nuclear Plant, Units 1, 2, & 3), 

CLI-04-24, 60 NRC 160, 189 (2004). 

The touchstone for evidentiary standards in nuclear whistleblowing cases is the special 

evidentiary framework under Section 211 of the Equal Rights Act, not McDonnell 

Douglass Corp v. Green, or Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). TVA, 

CLI-04-24, 60 NRC at 190-91. Section 211 of the Equal Rights Act establishes a twopart evidentiary approach for nuclear whistleblower cases: (1) employees must show 

that the whistleblowing activity was a “contributing factor” in an unfavorable personnel 

action, and (2) if that showing is made, the employer must demonstrate by “clear and 

convincing” evidence that it would have taken the same personnel activity anyway, 

regardless of the whistleblowing activity. Id. at 191. 

The evidentiary framework of Section 211 of the Equal Rights Act does not provide for 

a special exception for nuclear whistleblower cases litigated on a “pretext” theory. 

TVA, CLI-04-24, 60 NRC at 191. 
GENERAL MATTERS 166 JUNE 2011 

The evidentiary standard set forth in Section 211 of the Equal Rights Act favors 

employees by imposing a “clear and convincing evidence” standard on employers to 

prove that its chosen personnel activity would have been taken notwithstanding the 

alleged whistleblowing activity. TVA, CLI-04-24, 60 NRC at 192-93. 

Employees must demonstrate under Section 211 of the Equal Rights Act that the 

whistleblowing activity was a “contributing factor” in an unfavorable personnel action. 

This requires that the evidence presented must allow a reasonable person to infer that 

protected activities influenced the unfavorable personnel action to some degree. It 

does not require an employee to demonstrate that the whistleblowing activity was a 

“significant,” “motivating,” “substantial,” or “predominant” factor in a personnel action. 

TVA, CLI-04-24, 60 NRC at 197. 

The mere involvement, without more, in the resolution of a safety or regulatory 

compliance issue raised by another person does not constitute a “protected activity” 

defined in 10 C.F.R. § 50.7(a). However, an employee’s involvement in the resolution 

of such an issue does not deprive an employee of the protections that Section 50.7 

offers for otherwise protected activities. TVA, CLI-04-24, 60 NRC at 209. 

6.26 Stay of Agency Licensing Action – Informal Hearings

The pendency of a hearing request, or an ongoing proceeding, does not preclude the Staff 

(acting under its general authority delegated by the Commission) from granting a 

requested licensing action effective immediately. Babcock & Wilcox (Apollo, PA, Fuel 

Fabrication Facility), LBP-92-31, 36 NRC 225, 261 (1992). Section 2.1213 (formerly 

10 C.F.R. 2.1263) provides that if a requested licensing action is approved and is made 

effective immediately by the Staff, then any participant in an ongoing informal adjudication 

concerning that action can request that the presiding officer stay the effectiveness of the 

licensing action. Babcock & Wilcox (Apollo, PA, Fuel Fabrication Facility), LBP-92-31, 

36 NRC 225, 261 (1992). 

Applications for stay of Staff’s licensing action are governed by the stay criteria in § 2.342 

(formerly § 2.788). The participants should use affidavits to support any factual 

presentations that may be subject to dispute. See 10 C.F.R. § 2.342(a)(3) (formerly 

§ 2.788(a)(3)). Babcock & Wilcox (Apollo, PA, Fuel Fabrication Facility), LBP-92-31, 

36 NRC 255, 262-63 (1992). 

Because no one of the four stay criteria, of itself, is dispositive, the strength or weakness 

of a movant’s showing on a particular factor will determine how strong its showing must be 

on the other factors. See Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, 

Units 1 & 2), ALAB-820, 22 NRC 743, 746 n.8 (1985). However, the second stay factor – 

irreparable injury – is so central that failing to demonstrate irreparable injury requires that 

the movant make a particularly strong showing relative to the other factors. See Public 

Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), CLI-90-3, 31 NRC 219, 

260 (1990). Babcock & Wilcox (Apollo, PA, Fuel Fabrication Facility), LBP-92-31, 36 NRC 

255, 263 (1992). Nuclear Fuel Services, Inc. (Erwin, TN), LBP-04-2, 59 NRC 77, 80 

(2004). 

The irreparable injury factor will weigh in the movant’s favor only if the movant establishes 

that the claimed injury would be “both certain and great.” Mere speculation that a nuclear 
JUNE 2011 GENERAL MATTERS 167 

accident could potentially occur does not meet this standard. Nuclear Fuel Services, Inc.

(Erwin, TN), LBP-04-2, 59 NRC at 81. 

A movant’s reliance upon a listing of areas of concern in its hearing petition, along with the 

otherwise unexplained assertion that it expects to prevail on those issues, is inadequate to 

meet its burden under the first stay criteria to establish a likelihood of success on the 

merits. See Kerr-McGee Chemical Corp. (West Chicago Rare Earths Facility), ALAB-928, 

31 NRC 263, 270 (1990). Babcock & Wilcox (Apollo, PA, Fuel Fabrication Facility), LBP92-31, 36 NRC 255, 264 (1992). 

Failure to show irreparable injury means that the movant’s stay application will fail unless 

the movant can show to a “virtual certainty” that it will ultimately prevail on the merits. 

NFS, LBP-04-2, 59 NRC at 80. 

Further, a movant’s failure to make an adequate showing relative to the first two stay 

criteria makes an extensive analysis of the third and fourth factors unnecessary. See

Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-810, 21 NRC 

1616, 1620 (1985). Babcock & Wilcox (Apollo, PA, Fuel Fabrication Facility), LBP-92-31, 

36 NRC 255, 266 (1992). NFS, LBP-04-2, 59 NRC at 83. 

An applicant’s showing regarding extensive additional financial expenditures it must make 

if a stay is granted is a relevant consideration under the third stay criterion – harm to other 

parties. See Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), 

ALAB-808, 21 NRC 1595, 1602-03 (1985). Babcock & Wilcox (Apollo, PA, Fuel 

Fabrication Facility), LBP-92-31, 36 NRC 255, 267 (1992). 

Stays of any final decisions or actions of the Commission, a presiding officer, or the NRC 

Staff in issuing a license are permissible, but the regulations do not provide for 

“injunctions” to stay actions that are not yet final. Earthline Technologies, LBP-03-6, 

57 NRC 251, 245 (2003). 

6.27 (RESERVED) 

6.28 Technical Specifications

10 C.F.R. § 50.36 specifies, inter alia, that each operating license will include technical 

specifications to be derived from the analysis and evaluation included in the safety 

analysis report, and amendments thereto, and may also include such additional technical 

specifications as the Commission finds appropriate. The regulation sets forth with 

particularity the types of items to be included in technical specifications. Dominion 

Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 

54 NRC 349, 351 (2001). Portland General Electric Co. (Trojan Nuclear Plant), 

ALAB-531, 9 NRC 263, 272 (1979). The policy of the Commission “is to reserve technical 

specifications for the most significant safety requirements”, as outlined in 10 C.F.R. § 

50.36. Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3), 

CLI-02-1, 55 NRC 1, 3 (2002). 

There is neither a statutory nor a regulatory requirement that every operational detail set 

forth in an application’s safety analysis report (or equivalent) be subject to a technical 

specification to be included in the license as an absolute condition of operation which is 

legally binding upon the licensee unless and until changed with specific Commission 
GENERAL MATTERS 168 JUNE 2011 

approval. Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, 

Units 2 & 3), CLI-01-24, 54 NRC 349, 360 (2001). Technical specifications are reserved 

for those matters where the imposition of rigid conditions or limitations upon reactor 

operation is deemed necessary to obviate the possibility of an abnormal situation or event 

giving rise to an immediate threat to the public health and safety. Portland General 

Electric Co. (Trojan Nuclear Plant), ALAB-531, 9 NRC 263, 273 (1979); Cleveland Electric 

Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), ALAB-831, 23 NRC 62, 65-66 & 

n.8 (1986) (fire protection program need not be included in technical specification). 

Originally, 10 C.F.R. § 50.36 contained no well-defined criteria specifically describing the 

required contents of the technical specifications. Dominion Nuclear Connecticut, Inc.

(Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 351 (2001). After 

10 C.F.R. § 50.36 was issued, the amount of items listed in the technical specifications 

greatly increased. Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, 

Units 2 & 3), CLI-01-24, 54 NRC 349, 352 (2001). The NRC revised Section 50.36 so that 

it identifies criteria to be used in deciding what should be included in the technical 

specifications. Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, 

Units 2 & 3), CLI-01-24, 54 NRC 349, 352 (2001). If a requirement meets one of the 

criteria, it must be retained in the technical specifications. Dominion Nuclear Connecticut, 

Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 352 (2001). 

If it does not meet any of the criteria, it may be transferred to licensee-controlled 

documents. The agency policy is to limit technical specifications to focus licensee and 

plant operator attention on the most significant technical concerns. Dominion Nuclear 

Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 

352 (2001). NRC “generic letters” issued to licensees identify particular items deemed 

amenable to removal from the technical specifications. Dominion Nuclear Connecticut, 

Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 352 (2001). 

Relative to technical specification conditions for power reactor licenses, the Appeal Board 

has observed: “technical specifications are to be reserved for those matters as to which 

the imposition of rigid conditions or limitations upon reactor operation is deemed 

necessary to obviate the possibility of an abnormal situation or event giving rise to an 

immediate threat to the public health and safety.” Private Fuel Storage, L.L.C.

(Independent Spent Fuel Storage Installation), LBP-00-35, 52 NRC 364, 409 (2000), citing

Portland General Electric Co. (Trojan Nuclear Plant), ALAB-531, 9 NRC 263, 273 (1979). 

While this suggests that the threshold for imposing a technical license condition is not 

insignificant, in other contexts, in particular financial matters, Commission rulings indicate 

that the threshold may be somewhat lower. Private Fuel Storage, L.L.C. (Independent 

Spent Fuel Storage Installation), CLI-00-13, 52 NRC 23, 32 (2000) (adopting as ISFSI 

license conditions Private Fuel Storage financial qualification commitments made during 

the licensing process); Louisiana Energy Services (Claiborne Enrichment Center), CLI-97-

15, 46 NRC 294, 308-09 (1997) (adopting as enrichment facility license conditions 

financial qualification commitments made in licensing proceedings). 

Technical specifications for a nuclear facility are part of the operating license for the 

facility and are legally binding. Metropolitan Edison Co. (Three Mile Island Nuclear 

Station, Unit 1), ALAB-772, 19 NRC 1193, 1257 (1984), rev’d in part on other grounds, 

CLI-85-2, 21 NRC 282 (1985) (citing Portland General Electric Co. (Trojan Nuclear Plant), 

ALAB-531, 9 NRC 263, 272-73 (1979)). 
JUNE 2011 GENERAL MATTERS 169 

6.29 Termination of Facility Licenses

Termination of facility licenses is covered generally in 10 C.F.R. § 50.82. 

In a proceeding concerning the adequacy of a License Termination Plan (LTP), the scope 

of admissible contentions in the proceeding is coextensive with the scope of the LTP itself, 

which is governed by the requirements of 10 C.F.R. § 50.82. Yankee Atomic Electric Co.

(Yankee Nuclear Power Station), LBP-99-14, 49 NRC 238, 239 (1999). 

The Commission considers the LTP significant enough to require the LTP to be treated as 

a license amendment, complete with a hearing opportunity. Yankee Atomic Electric Co.

(Yankee Nuclear Power Station), CLI-98-21, 48 NRC 185 (1988). 

A site characterization in an LTP must contain a description of the essential character or 

quality of the plant site. Connecticut Yankee Atomic Power Co. (Haddam Neck Plant), 

LBP-01-21, 54 NRC 33, 59 (2001). The Commission declines to develop a “bright line” 

test for when a site characterization or site remediation plan is final or complete enough to 

support approval of an LTP. A site characterization is not incomplete solely because 

additional site characterization may be obtained at a later time, but site characterization 

involves more than methodologies or plans for characterization. Yankee Atomic Electric 

Co. (Yankee Nuclear Power Station), CLI-05-15, 61 NRC 365, 377 (2005). 

It appears that the adequacy of site characterization and site remediation plans depends 

to a large extent on site-specific conditions. At a minimum, the site characterization and 

remediation plans must provide sufficient information to allow the NRC to determine the 

extent and range of expected radioactive contamination, to determine whether estimates 

for remaining decommissioning costs are reasonable, to determine the likely schedule for 

remaining activities, and to support the final survey site to verify compliance with Part 20 

release limits—the ultimate goal of the decommissioning process. Yankee, CLI-05-15, 

61 NRC at 377 (discussing the content requirements of 10 C.F.R. § 50.82(a)(9)(ii)(A),(C) 

for LTPs). The purpose of site characterization is to define relevant features of the soil, 

water, and buildings in order to assess risks and develop adequate plans to complete 

decommissioning. The LTP must deal with issues already identified and those reasonably 

anticipated. The key question at the LTP stage is whether the site characterization is 

sufficiently detailed to allow the evaluation of the adequacy of each element prescribed by 

10 C.F.R. § 50.82(a)(9) and for making the findings required for approval of the LTP (see

10 C.F.R. § 50.82(a)(10)). Id. at 381. 

A showing of a violation of 10 C.F.R. § 50.82(a)(9) – which contains the words, “[t]he 

[license termination plan] must include” – could constitute a significant indication of a 

possible violation of 10 C.F.R. § 50.82(a)(10); if a site characterization as required under 

Section 50.82(a)(9)(ii)(A) is shown to be inadequate, then areas not covered by the site 

characterization might be omitted or given inadequate attention in cleanup efforts and in 

the final status survey, which could in turn be an indication that the LTP has not 

“demonstrate[d] that the remainder of the decommissioning activities [1] will be performed 

in accordance with the regulations in this chapter, [2] will not be inimical to the common 

defense and security or to the health and safety of the public and [3] will not have a 

significant effect on the quality of the environment,” under Section 50.82(a)(10). 

Connecticut Yankee Atomic Power Co. (Haddam Neck Plant), LBP-01-21, 54 NRC 33, 66-

67 (2001). 
GENERAL MATTERS 170 JUNE 2011 

Spent fuel management is outside the scope of a license termination proceeding, which is 

confined to a review of the matters specified in 10 C.F.R. § 50.82(a)(9) and (10). Yankee 

Atomic Electric Co. (Yankee Nuclear Power Station), CLI-98-21, 48 NRC 185 (1988). 

6.30 Procedures in Other Types of Hearings

6.30.1 Military or Foreign Affairs Functions 

Under the Administrative Procedure Act, 5 U.S.C. § 554(a) (4), and the Commission’s 

Rules of Practice, 10 C.F.R. § 2.301 (formerly § 2.700a), procedures other than those 

for formal evidentiary hearings may be fashioned when an adjudication involves the 

conduct of military or foreign affairs functions. Nuclear Fuel Services, Inc. (Erwin, 

Tennessee), CLI-80-27, 11 NRC 799, 802 (1980). 

The fact that an applicant lists a foreign-owned entity among its contractors does not 

indicate foreign ownership, domination, or control over the applicant. PPL Bell Bend, 

LLC (Bell Bend Nuclear Power Plant), LBP-09-18, 70 NRC __ (Aug. 10, 2009) (slip 

op. at 50).

6.30.2 Import/Export Licensing 

Individual fuel exports are not major federal actions. Westinghouse Electric Corp.

(Exports to the Philippines), CLI-80-15, 11 NRC 672 (1980). (Also see Section 3.4.6.) 

Commission regulations provide in 10 C.F.R. § 110.82(c)(2) that hearing requests on 

applications to export nuclear fuel are to be filed within fifteen (15) days after the 

application is placed in the Commission’s Public Document Room. Westinghouse 

Electric Corp. (Nuclear Fuel Export License for Czech Republic – Temelin Nuclear 

Power Plants), CLI-94-7, 39 NRC 322, 327 (1994). 

United States non-proliferation policy, as set forth in the Nuclear Non-Proliferation Act 

of 1978 (NNPA) requires the NRC to act in a timely manner on export license 

applications to countries that meet U.S. non-proliferation requirements. Because 

Congress viewed timely action on export license applications as fundamental to 

achieving the non-proliferation goals underlying the NNPA, the Commission is reluctant 

to grant late hearing requests on export license applications. Because timely action on 

export licenses supports U.S. nuclear non-proliferation goals under the NNPA, it is 

particularly important that petitioners in this context demonstrate that the pertinent 

factors weigh in favor of granting an untimely petition. Westinghouse Electric 

Corporation (Nuclear Fuel Export License for Czech Republic – Temelin Nuclear 

Power Plants), CLI-94-7, 39 NRC 322, 328 (1994). 

Under the NNPA, the Commission is required to hold a hearing only if it concludes that 

public participation will be in the public interest and assist it in making the statutory 

determinations required by the AEA. Nothing in the statutory language suggests that 

the Commission must hold a hearing if a member of the public requesting a hearing 

has standing – or as AEA § 189 puts it, “an interest which may be affected.” U.S. Dep’t 

of Energy (Plutonium Export License), CLI-04-17, 59 NRC 357, 366-67 (2004). In its 

export licensing orders, the Commission has typically addressed the standing of 

requesters but has not explicitly found that if a person has standing the Commission 

must hold a hearing. See id. at 367. 
JUNE 2011 GENERAL MATTERS 171 

In a case where petitioners requested a hearing challenging an export license to export 

weapons-grade plutonium oxide to France, the Commission stated that (under the 

NNPA and 10 C.F.R. § 110.84(a)), the petitioners’ requested export license hearing for 

the purpose of delving into the specifics of the physical security measures of a recipient 

foreign country to determine the adequacy of those measures and of the existing 

standards clearly would not be appropriate, both because of legal restrictions on 

dissemination of such information and because further dissemination of such 

information could endanger security. See U.S. Dep’t of Energy (Plutonium Export 

License), CLI-04-17, 59 NRC 357, 368-69 (2004). 

In a case where petitioners requested a hearing challenging an export license to export 

weapons-grade plutonium oxide to France, and petitioners argued standing in part 

because of proximity to cross-country shipments of the plutonium, the Commission 

stated (via dicta in a footnote) that the NRC’s jurisdiction to license DOE exports of 

SNM under AEA § 54.d. does not extend to any aspects of DOE’s domestic 

transportation of such material. Therefore, it was unclear that denial of DOE’s 

proposed export license would redress or avoid the harm that petitioners asserted for 

standing purposes – i.e., DOE’s transportation of the plutonium oxide near petitioners’ 

residences. See U.S. Dep’t of Energy (Plutonium Export License), CLI-04-17, 59 NRC 

357, 366 n.13 (2004). 

The transfer of nuclear material to an intermediate consignee performing only shipping 

services does not in any respect constitute an “export” to a foreign sovereign under the 

Commission’s regulations (see 10 C.F.R. § 110.2) or under international law. U.S. 

Dep’t of Energy (Plutonium Export License), CLI-04-17, 59 NRC 357, 370 (2004). 

Under 10 C.F.R. § 110.84(c), untimely hearing requests may be denied unless good 

cause for failure to file on time is established. In reviewing untimely requests, the 

Commission will also consider: (1) the availability of other means by which the 

petitioner’s interest, if any, will be protected or represented by other participants in a 

hearing; and (2) the extent to which the issues will be broadened or action on the 

application delayed. The potential for delay of action on an export license application 

is an important factor in the Commission’s analysis of a late-filed petition on such 

applications, in light of the NNPA’s directive for timely decisions on export license 

applications. Westinghouse Electric Corporation (Nuclear Fuel Export License for 

Czech Republic – Temelin Nuclear Power Plants), CLI-94-7, 39 NRC 322, 328 (1994). 

The first and principal test for late intervention is whether a petitioner has demonstrated 

“good cause” for filing late. In addressing the good-cause factor, a petitioner must 

explain not only why it failed to file within the time required, but also why it did not file 

as soon thereafter as possible. Lacking a demonstration of “good cause” for lateness, 

a petitioner is bound to make a compelling showing that the remaining factors 

nevertheless weigh in favor of granting the late intervention and hearing request. The 

fact that no one will represent a petitioner’s perspective if its hearing request is denied 

is in itself sufficient for the Commission to excuse the untimeliness of the request. 

Westinghouse Electric Corporation (Nuclear Fuel Export License for Czech Republic – 

Temelin Nuclear Power Plants), CLI-94-7, 39 NRC 322, 329 (1994). Also, in the 

absence of evidence that a hearing would generate significant new information or 

analyses, a public hearing would be inconsistent with the NNPA. CLI-94-7 at 334. 
GENERAL MATTERS 172 JUNE 2011 

6.30.2.1 Jurisdiction of Commission re Export Licensing 

The Commission is neither required nor precluded by the AEA or NEPA from 

considering impacts of exports on the global commons. Provided that NRC review 

does not include visiting sites within the recipient nation to gather information or 

otherwise intrude upon the sovereignty of a foreign nation, consideration of impacts 

upon the global commons is legally permissible. Westinghouse Electric Corp.

(Exports to the Philippines), CLI-80-14, 11 NRC 631, 637-644 (1980). The 

Commission’s legislative mandate neither compels nor precludes examination of 

health, safety and environmental effects occurring abroad that could affect U.S. 

interests. The decision whether to examine these effects is a question of policy to 

be decided as a matter of agency discretion. CLI-80-14, 11 NRC at 654. 

As a matter of policy, the Commission has determined not to conduct such reviews 

in export licensing decisions primarily because no matter how thorough the NRC 

review, the Commission still would not be in a position to determine that the reactor 

could be operated safely. Westinghouse Electric Corp. (Exports to the Philippines), 

CLI-80-14, 11 NRC 631, 648 (1980). 

The Commission lacks legal authority under AEA, NEPA, and NNPA to consider 

health, safety and environmental impacts upon citizens of recipient nations because 

of the traditional rule of domestic U.S. law that federal statutes apply only to conduct 

within, or having effect within, the territory of the U.S. unless the contrary is clearly 

indicated in the statute. Id., 11 NRC at 637. See also General Electric Co. (Exports 

to Taiwan), CLI-81-2, 13 NRC 67, 71 (1981). 

The alleged undemocratic character of the Government of the Philippines does not 

relate to health, safety, environmental and non-proliferation responsibilities of the 

Commission and are beyond the scope of the Commission’s jurisdiction. 

Westinghouse Electric Corp. (Exports to the Philippines), CLI-80-14, 11 NRC 631, 

656 (1980). 

The NRC views actions as being inimical to the common defense and security 

where there is an unacceptable likelihood of grave or exceptionally grave damage to 

the United States. Thus, the NRC’s principal concern once fissile nuclear materials 

have left the United States is the possibility of theft. U.S. Dep’t of Energy, 

CLI-04-17, 59 NRC 357, 375 (2004). 

6.30.2.2 Export License Criteria 

The AEA, as amended by the NNPA, provides that the Commission may not issue a 

license authorizing the export of a reactor, unless it finds, based on a reasonable 

judgment of the assurances provided, that the criteria set forth in §§ 127 and 128 of 

the AEA are met. The Commission must also determine that the export would not 

be inimical to the common defense and security or health and safety of the public 

and would be pursuant to an Agreement for Cooperation. Westinghouse Electric 

Corp. (Exports to the Philippines), CLI-80-14, 11 NRC 631, 652 (1980). 

In order to grant an export license to a nuclear-weapons state, the Commission 

must determine that the nonproliferation criteria set forth in Section 127 of the AEA 

have been met, and also, pursuant to Section 57.c(2) of the AEA, that a proposed 
JUNE 2011 GENERAL MATTERS 173 

export will not be “inimical to the common defense and security” of the United 

States. See U.S. Dep’t of Energy (Plutonium Export License), CLI-04-17, 59 NRC 

357, 372, 373 (2004). 

The Commission may not issue a license for export unless it determines that the 

three specific criteria in Section 109(b) of AEA are met and determines that the 

export will not be inimical to common defense. Westinghouse Electric Corp.

(Exports to the Philippines), CLI-80-14, 11 NRC 631, 654 (1980). 

The legislative history of the NNPA indicates that, in the absence of “unusual 

circumstances,” the Commission “need not look beyond the non-proliferation 

safeguards [in Section 127 for nuclear-weapons states] in determining whether the 

common defense and security standard is met.” U.S. Dep’t of Energy (Plutonium 

Export License), CLI-04-17, 59 NRC 357, 374 (2004) (quoting Natural Res. Def. 

Council, Inc. v. NRC, 647 F.2d 1345, 1363 (D.C. Cir. 1981)). 

The NRC may properly rely on the conclusions of the Executive Branch regarding 

the common defense and security requirements of Section 126 of the AEA 

(regarding export licensing procedures). Transnuclear, Inc. (Export of 93.3% 

Enriched Uranium), CLI-00-16, 52 NRC 68, 77 (2000). See also U.S. Dep’t of 

Energy (Plutonium Export License), CLI-04-17, 59 NRC 357, 374 (2004) (quoting

Natural Res. Def. Council, Inc. v. NRC, 647 F.2d 1345, 1363 (D.C. Cir. 1981). (The 

NRC can rely on the Executive Branch’s noninimicality determinations because they 

involve “strategic judgments” and foreign policy and national security expertise. 

6.30.2.3 HEU Export License – Atomic Energy Act 

Diplomatic notes containing a foreign government’s assurance that it will use lowenriched uranium (LEU) targets when such targets become available, provided that 

their use does not result in a large percentage increase in the total cost of operating 

the pertinent reactor, constitute assurance sufficient to satisfy AEA Section 134.a(2), 

42 U.S.C. § 2160d. That provision requires that the proposed recipient of highenriched uranium (HEU) provide assurance that, whenever an alternative nuclear 

reactor target can be used in that reactor, it will use that alternative in lieu of HEU. 

Transnuclear, Inc. (Export of 93.3% Enriched Uranium), CLI-99-20, 49 NRC 469, 

473 (1999). 

The requirement under AEA Section 134.a(3) of an active program for the 

development of an LEU target that can be used in the particular reactor to which the 

HEU exports are being made is satisfied where the Commission finds that the 

principals have executed a confidentiality agreement to enable the principals to 

forward technical information that would enable a feasibility study to be completed 

and have provided information pursuant to that agreement. Transnuclear, Inc.

(Export of 93.3% Enriched Uranium), CLI-99-20, 49 NRC 469, 473 (1999). 

6.30.2.4 Import Licensing

“[T]he Commission will issue an LLW import license if it finds that: (1) the proposed 

import will not be inimical to the common defense and security; (2) the proposed 

import will not constitute an unreasonable risk to the public health and safety; 

(3) the environmental requirements of Part 51 have been satisfied (to the extent 
GENERAL MATTERS 174 JUNE 2011 

applicable); and (4) an appropriate facility has agreed to accept the waste for 

management or disposal.” EnergySolutions, LLC (Radioactive Waste Import/Export 

Licenses), CLI-08-24, 68 NRC 491, 494 (2008). An integral aspect of the 

Commission’s determination of a facility’s appropriateness for disposal of imported 

waste is whether the facility can actually accept that waste for disposal. Id. at 495. 

6.30.3 High-Level Waste Licensing 

There is no legal requirement for a notice-and-comment rulemaking proceeding 

concerning the Commission’s statutory concurrence in DOE’s General Guidelines for 

Recommendation of Sites for Nuclear Waste Repositories, pursuant to Section 112(a) 

of the Nuclear Waste Policy Act of 1982. NRC Concurrence in High-Level Waste 

Repository Safety Guidelines Under Nuclear Waste Policy Act of 1982, CLI-83-26, 

18 NRC 1139, 1140 (1983). 

The procedures that govern the conduct of an adjudicatory proceeding on the 

application for authorization to construct a high-level radioactive waste repository at a 

geologic repository operations area (GROA) and an application for a license to receive 

and possess high-level radioactive waste at a GROA are specified in Subparts J, C 

and G. See 10 C.F.R. § 2.1000. The procedures in Subpart J take precedence over 

the rules of general applicability in 10 C.F.R. Part 2, Subpart C, except for those 

provisions listed in 10 C.F.R. § 2.1000. 

Subpart J prohibits appeals except as prescribed in 10 C.F.R. § 2.1015(b), (c), and (d). 

See U.S. Dep’t of Energy (High-Level Waste), CLI-10-10, 71 NRC __ (Mar. 11, 2010) 

(slip op. at 3-4) (noting that Subpart J does not provide for appeals of a Presiding 

Officer’s ruling on a late-filed intervention petition). A request for interlocutory review 

that is not permitted under Subpart J may be granted as an exercise of the 

Commission’s inherent supervisory authority over adjudications if the basic structure of 

the proceeding is affected in a pervasive and unusual manner. U.S. Dep’t of Energy

(High-Level Waste), CLI-10-13, 71 NRC __ (Apr. 23, 2010) (slip op. at 3 & n.6) 

(reviewing and reversing Board decision to suspend the proceeding pending court 

action on matters related to DOE’s request to withdraw its license application). 

Subpart J provides procedures for the development and operation of the Licensing 

Support Network (LSN), an electronic information management system that makes 

documentary material relevant to the proceeding electronically available to the 

participants. See Digest Section 2.12.7, Discovery in High-Level Waste Licensing 

Proceedings. Because many of the features of the system contemplated under the 

original 1988 rule no longer provide optimal approaches to electronic information 

management, the Commission adopted a revised approach to the LSN in a rulemaking 

published at 63 Fed. Reg. 71,729 (Dec. 30, 1998). 

The duty to certify compliance with the LSN applies only to documents in existence at 

the time the certification occurs. There is no requirement that certification be delayed 

until all the materials that a party intends to rely on are complete and final. U.S. Dept. 

of Energy (High-Level Waste Repository), CLI-08-12, 67 NRC 386, 392 (2008); U.S. 

Dept. of Energy (High Level Waste Repository), LBP-08-1, 67 NRC 37 (2008). See 

also U.S. Dept. of Energy (High Level Waste Repository), LBP-08-5, 67 NRC 205 

(2008) (rejecting Dept. of Energy’s Motion to Strike the State of Nevada’s certification). 

However, participants must make a diligent and good faith effort to include all after-
JUNE 2011 GENERAL MATTERS 175 

created and after-discovered documents in each monthly LSN supplementation. U.S. 

Dep’t of Energy (High-Level Waste Repository), LBP-09-06, 69 NRC 367, 387 (2009), 

rev’d in part on other grounds, CLI-09-14, 69 NRC 580 (2009). 

6.30.3.1 Intervention in the High-Level Waste Proceeding 

A petitioner may not be granted party status in the high-level waste proceeding if it 

cannot demonstrate substantial and timely compliance with the requirements in 

10 C.F.R. § 2.1003. U.S. Dep’t of Energy (High-Level Waste Repository), 

LBP-09-06, 69 NRC 367, 381-83 (2009), rev’d in part on other grounds, CLI-09-14, 

69 NRC 580 (2009). If a party is found not to be in substantial and timely 

compliance, it can later request party status upon a subsequent showing of 

compliance and its participation will be “conditioned on accepting the status of the 

proceeding at the time of admission.” Id. at 383 (quoting 10 C.F.R. § 2.1012(b)(2)). 

With regard to standing, the Commission has conferred standing as of right to 

certain parties including the State of Nevada, local governmental bodies in which 

the GROA is located, and any affected federally recognized Indian tribe as defined 

in 10 C.F.R. Part 63, if the party satisfies the 10 C.F.R. § 2.309(f) requirements with 

respect to at least one contention. U.S. Dep’t of Energy, LBP-09-06, 69 NRC at 381 

(2009), rev’d in part on other grounds, CLI-09-14, 69 NRC 580 (2009). 

The Commission has imposed additional requirements in 10 C.F.R. § 51.109 on the 

admissibility of contentions that involve NEPA. U.S. Dep’t of Energy, LBP-09-06, 

69 NRC at 391-92, aff’d, CLI-09-14, 69 NRC at 402. The additional requirements 

are that (1) each contention must be supported by an affidavit that sets forth factual 

and/or technical bases, and (2) the affidavit must set forth “significant and 

substantial” grounds for the claim that it is not practicable to adopt the EIS. Id. at 

392 (quoting 10 C.F.R. § 51.109). An affidavit is not, however, required for NEPA 

contentions that raise purely legal issues because the requirement to provide 

supporting factual and/or technical bases is not applicable to purely legal 

contentions. Id. at 422, aff’d, CLI-09-14, 69 NRC at 590. 

6.30.3.2 Consideration of Character and Competence in the High-Level Waste 

Proceeding 

The high-level waste (HLW) proceeding is unique with regard to consideration of 

character and competence because the government, not a private enterprise, is the 

applicant. U.S. Dep’t of Energy (High-Level Waste Repository), CLI-09-14, 

69 NRC 580, 605 (2009). The NRC will not question whether DOE is an appropriate 

applicant. Id. The Commission extends comity to other governmental entities and 

presumes, absent strong and concrete evidence to the contrary, that government 

agencies and their employees will do their jobs honestly and properly. Id. at 606. 

The NRC does not have statutory authority to consider DOE’s character because 

DOE is not a “person” as defined in Section 11 of the AEA. Id. at 607-08. 

6.30.4 Low-Level Waste Disposal 

Faced with a looming shortage of disposal sites for low-level radioactive waste in 

31 states, Congress enacted the Low-Level Radioactive Waste Policy Amendments 

Act of 1985, which, among other things, imposes upon states, either alone or in 
GENERAL MATTERS 176 JUNE 2011 

“regional compacts” with other states, the obligation to provide for the disposal of waste 

generated within their borders, and contains three provisions setting forth “incentives” 

to states to comply with that obligation. The three incentives are: (1) the monetary 

incentives; (2) the access incentives; and (3) the “take title” provision. 

Because the Act’s take title provision offers the states a “choice” between two 

unconstitutionally coercive alternatives – either accepting ownership of waste or 

regulating according to Congress’ instructions – the provision lies outside Congress’ 

enumerated powers and is inconsistent with the Tenth Amendment. On the one hand, 

either forcing the transfer of waste from generators to the states or requiring the states 

to become liable for the generators’ damages would “commandeer” states into the 

service of federal regulatory purposes. On the other hand, requiring the states to 

regulate pursuant to Congress’ direction would present a simple unconstitutional 

command to implement legislation enacted by Congress. Thus, the states’ “choice” is 

no choice at all. New York v. U.S., 505 U.S. 144, 176-77 (1992). 

The take title provision is severable from the rest of the Act, since severance will not 

prevent the operation of the rest of the Act or defeat its purpose of encouraging the 

states to attain local or regional self-sufficiency in low-level radioactive waste disposal. 

New York v. U.S., 505 U.S. 144, 186-87 (1992). 

6.30.5 (RESERVED) 

6.30.6 Certification of Gaseous Diffusion Plants 

Individuals who wish to petition for review of an initial Director’s decision must explain 

how their “interest may be affected.” 10 C.F.R. § 76.62(c). For guidance, petitioners 

may look to the Commission’s adjudicatory decisions on standing. U.S. Enrichment 

Corp. (Paducah, Kentucky), CLI-01-23, 54 NRC 267, 272 (2001); U.S. Enrichment 

Corp. (Paducah, Kentucky, and Piketon, Ohio), CLI-96-12, 44 NRC 231, 234, 236 

(1996). 

An analysis of potential accidents and consequences is required by 10 C.F.R. § 76.85 

and should include plant operating history that is relevant to the potential impacts of 

accidents. U.S. Enrichment Corp. (Paducah, Kentucky, and Piketon, Ohio), CLI-96-12, 

44 NRC 231, 245-46 (1996). 

By rejecting a petition for review pursuant to 10 C.F.R. § 76.62(c), the Commission 

allows a Director’s decision to become final. U.S. Enrichment Corp. (Paducah, KY), 

CLI-98-2, 47 NRC 57 (1998). 

To be eligible to petition for review of a Director’s decision on the certification of a 

gaseous diffusion plant, an interested party must have either submitted written 

comments in response to a prior Federal Register notice, or provided oral comments 

at an NRC meeting held on the application or compliance plan. 10 C.F.R. § 76.62(c). 

U.S. Enrichment Corp. (Paducah, Kentucky, and Piketon, Ohio), CLI-96-10, 

44 NRC 114, 117 (1996); U.S. Enrichment Corp. (Paducah, Kentucky, and Piketon, 

Ohio), CLI-96-12, 44 NRC 231, 233-34 (1996). 

10 C.F.R. Part 76 contemplates a Commission decision on petitions for review of 

certification decisions within a relatively short (60-day) time period. See
JUNE 2011 GENERAL MATTERS 177 

10 C.F.R. § 76.62(c). Extending the Part 76 petition deadline in the absence of a 

strong reason is not compatible with the contemplated review period. U.S. Enrichment 

Corp. (Paducah, Kentucky, and Piketon, Ohio), CLI-96-10, 44 NRC 114, 118 (1996). 

Pursuant to 10 C.F.R. § 76.45(d), “any person whose interest may be affected,” may 

file a petition requesting the Director of the Office of Nuclear Material Safety and 

Safeguards review NRC Staff determinations made on an application for amendment 

to a certification of a gaseous diffusion plant. U.S. Enrichment Corp. (Paducah, 

Kentucky), CLI-01-23, 54 NRC 267, 271-72 (2001). Pursuant to 10 C.F.R. § 76.54(e), 

“any person whose interest may be affected and who filed a petition for review or filed 

a response to a petition for review under § 76.54(d), may file a petition requesting the 

Commission’s review of a Director’s decision. U.S. Enrichment Corp. (Paducah, 

Kentucky), CLI-01-23, 54 NRC 267, 271-72 (2001). 

6.30.7 Senior Operator License Proceedings 

The NRC Staff’s policy states that an applicant must score “at least” an 80% on the 

written exam to pass. The Commission declines to accept a Presiding Officer 

procedure of rounding up lower scores and declares the practice “impermissible.” 

Ralph L. Tetrick (Denial of Application for Reactor Operator License), CLI-97-10, 

46 NRC 26, 32 (1997). 

“A presiding officer properly can look to NUREG-1021, ‘Operator Licensing 

Examination Standards for Power Reactors’ (Interim Rev. 8, Jan. 1997), as an 

important source in assessing whether the Staff has strayed too far afield of the stated 

twin goals of ‘equitable and consistent’ examination administration.” 

Michel A. Phillippon (Denial of Senior Reactor Operator License), LBP-99-44, 50 NRC 

347, 358 (1999), quoting Frank J. Calabrese, Jr. (Denial of Senior Reactor Operator 

License), LBP-97-16, 46 NRC 66, 86 (1997). 

6.30.8 Subpart K Proceedings 

Under 10 C.F.R. § 2.341 (formerly § 2.786(b)(4)(1)), the Commission will grant a 

petition for review if the petition raises a “substantial question” whether a finding of 

material fact is clearly erroneous or in conflict with a finding as to the same fact in a 

different proceeding. The general reviewability standards set out in 10 C.F.R. § 2.341 

(formerly § 2.786) apply to Subpart K by virtue of 10 C.F.R. § 2.1103 (formerly 

§ 2.1117), which makes the general Subpart C rules applicable “except where 

inconsistent” with Subpart K. Subpart K has no reviewability rules of its own. 

Northeast Nuclear Energy Co. (Millstone Nuclear Power Station, Unit 3), CLI-01-3, 

53 NRC 22, 27, n.6 (2001). 

6.31 License Transfer Proceedings

The AEA and NRC’s own rules unquestionably confer to the NRC the legal power to 

approve the indirect transfer of control over NRC operating licenses. Northeast Nuclear 

Energy Co. (Millstone Nuclear Power Station, Units 1, 2, & 3), CLI-00-18, 52 NRC 129 

(2000). See 42 U.S.C. § 2234; 10 C.F.R. § 50.80(a). 

On its face, Section 184 not only broadly prohibits all manner of transfers, assignments, 

and disposals of NRC licenses, but also all manner of actions that have the effect of, in 
GENERAL MATTERS 178 JUNE 2011 

any way, directly or indirectly, transferring actual or potential control over a license without 

the agency’s knowledge and express written consent. Safety Light Corp. (Bloomsburg 

Site Decommissioning and License Renewal Denials), LBP-95-9, 41 NRC 412, 451 

(1995). 

If the statutory proscription against the transfer of control of NRC licenses could be 

avoided by the expedience of a corporate restructuring, complex or otherwise, then 

Section 184 would be a toothless tiger. Safety Light Corp. (Bloomsburg Site 

Decommissioning and License Renewal Denials), LBP-95-9, 41 NRC 412, 454 (1995). 

As long as Section 184 and any other regulation or license condition is not violated, a 

material licensee may transfer its assets without notifying and obtaining the agency’s 

permission. Safety Light Corp. (Bloomsburg Site Decommissioning and License Renewal 

Denials), LBP-95-9, 41 NRC 412, 456 (1995). When the transfer of control of NRC 

licenses is involved, Section 184 requires the agency’s express written consent, not just 

that the agency be notified. Id.

The language of the AEA itself demonstrates that Congress placed no importance on the 

corporate form in enacting Section 184. Safety Light Corp. (Bloomsburg Site 

Decommissioning and License Renewal Denials), LBP-95-9, 41 NRC 412, 456 (1995). 

The inclusion of a “corporation” in the definition of a “person” in Section 11.s. of the AEA 

and the use of the latter term in the inalienability of licenses provision in Section 184 

indicates that Congress intended a corporation to be treated in the same manner as all 

other entities. Corporate law principles, which are applicable only to the corporate form of 

organization, are entitled to no consideration under Section 184 and do not thwart NRC 

regulatory jurisdiction over a corporation for violating that provision. It long has been 

established that the fiction of corporate separateness of state-chartered corporations will 

not be permitted to frustrate the policies of a federal statute. Safety Light Corp.

(Bloomsburg Site Decommissioning and License Renewal Denials), LBP-95-9, 41 NRC 

412, 457 (1995). 

The statutory frustration principle permits the NRC to disregard the corporate form and 

impose liability on the parent corporation shareholder for the obligations of its subsidiary. 

And, this is true whether or not its intent was to avoid the statutory prohibition of 

Section 184 for “intention is not controlling when the fiction of corporate entity defeats a 

legislative purpose.” Safety Light Corp. (Bloomsburg Site Decommissioning and License 

Renewal Denials), LBP-95-9, 41 NRC 412, 458 (1995), quoting Kavanaugh v. Ford Motor 

Co., 353 F.2d 710, 717 (7th Cir. 1965). 

A hearing on the transfer of a license need not be a pre-effectiveness or prior hearing. 

AEA § 189.a(1); 42 U.S.C. § 2239. The NRC has strictly construed 189.a(1). Although 

this section mentions numerous actions for which hearings shall be granted if requested 

by an interested person, the discussion of pre-effectiveness hearings mentions only four 

of these actions for which a prior hearing is required. A transfer of control is not one of 

these four actions. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), 

CLI-92-4, 35 NRC 69, 76-77 (1992). 

Section 189.a.(1)(A) of the AEA requires the Commission to offer an opportunity for a 

hearing for certain kinds of proceedings, including those involving the “transfer of control” 

over licensed facilities. In order to trigger hearing rights under the “transfer of control” 
JUNE 2011 GENERAL MATTERS 179 

provision of § 189.a.(1)(A), there must actually be a license transfer. Where a corporate 

merger did not propose to change either operating or possession authority, there was no 

direct license transfer. Similarly, where the same parent company would indirectly control 

the licensee – both before and after the proposed merger – there was no indirect license 

transfer. Therefore, the proceeding did not involve a “transfer of control,” and no hearing 

rights attached. Amergen Energy Co., LLC (Three Mile Island Nuclear Station, Unit 1), 

CLI-05-25, 62 NRC 572, 573-74 (2005). 

The Commission’s rules for the license transfer at 10 C.F.R. Part 2, Subpart M, set out 

two possible avenues to address issues that may arise from license transfer applications: 

written comments or an oral hearing. Duquesne Light Co., FirstEnergy Nuclear Operating 

Co., and Pennsylvania Power Co. (Beaver Valley Power Station, Units 1 & 2), CLI-99-23, 

50 NRC 21, 22 (1999). 

When a license is transferred, the new licensee is subject to both the terms of the license 

and the applicable sections of Part 40. Moab Mill Reclamation Trust (Atlas Mill Site), 

CLI-00-7, 51 NRC 216, 224 (2000). 

6.31.1 Subpart M Procedures 

Subpart M to 10 C.F.R. Part 2 is intended to apply in all license transfer proceedings 

unless the Commission directed otherwise in a case-specific order. Moab Mill 

Reclamation Trust (Atlas Mill Site), CLI-00-7, 51 NRC 216, 221-22 (2000). 

Motions for a Subpart G proceeding are expressly prohibited in Subpart M 

proceedings, pursuant to 10 C.F.R. § 2.1322(d). Power Authority of the State of New 

York, et al. (James FitzPatrick Nuclear Power Plant; Indian Point Nuclear Generating 

Unit 3), CLI-00-22, 52 NRC 266, 290 (2000), citing Vermont Yankee Nuclear Power 

Corp. (Vermont Yankee Nuclear Power Station), CLI-00-20, 52 NRC 151, 162 (2000). 

However, 10 C.F.R. § 2.335 provides for waiver of the rules under “special 

circumstances” that demonstrate that the “application of a rule or regulation would not 

serve the purposes for which it was adopted.” Consolidated Edison Co. of New York 

and Entergy Nuclear Indian Point 2, LLC, and Entergy Nuclear Operations, Inc. (Indian 

Point Nuclear Generating Units 1 & 2), CLI-01-19, 54 NRC 109, 130 (2001). 

The interpretation of Subpart M as dealing only with financial matters is overly 

restrictive and does not meet the requisite “special circumstances” for a waiver of the 

rules. Power Authority of the State of New York, et al. (James FitzPatrick Nuclear 

Power Plant; Indian Point Nuclear Generating Unit 3), CLI-00-22, 52 NRC 266, 290 

(2000). 

Subpart M calls for “specificity” in pleadings. Power Authority of the State of New York, 

et al. (James FitzPatrick Nuclear Power Plant; Indian Point Nuclear Generating, 

Unit 3), CLI-00-22, 52 NRC 266, 300 (2000), n.23, citing Northeast Nuclear Energy Co. 

(Millstone Nuclear Power Station, Units 1, 2, & 3), CLI-00-18, 52 NRC 129, 131-32 

(2000). However, where critical information has been submitted to the NRC under a 

claim of confidentiality and was not available to the petitioners when framing their 

issues, the Commission has deemed it appropriate to defer ruling on the admissibility 

of an issue until the petitioner has had an opportunity to review this information and 

submit a properly documented issue. Power Authority of the State of New York, et al.

(James FitzPatrick Nuclear Power Plant; Indian Point Nuclear Generating Unit 3), 
GENERAL MATTERS 180 JUNE 2011 

CLI-00-22, 52 NRC 266, 300 (2000). The issues in license transfer proceedings 

constitute contentions under 10 C.F.R. 2.309(f) and must therefore meet the standards 

for admissibility set forth in that regulation. Consumers Energy Co., Nuclear 

Management Co, LLC, Entergy Nuclear Palisades, LLC, and Entergy Nuclear 

Operations, Inc. (Palisades Nuclear Power Plant), CLI-07-18, 65 NRC 399 (2007). 

Specific pleadings are required in license transfer hearings. Neither “notice pleading,” 

nor “the filing of a vague, unparticularized issue,” nor the submission of “general 

assertions or conclusions,” suffices to trigger a license transfer hearing. Northeast 

Nuclear Energy Co., et al. (Millstone Nuclear Power Station, Units 1, 2, & 3), 

CLI-00-18, 52 NRC 129, 132 (2000) (citing GPU Nuclear Inc. (Oyster Creek Nuclear 

Generating Station), CLI-00-6, 51 NRC 193, 202-03 (2000); Northern States Power Co.

(Monticello Nuclear Generating Plant; Prairie Island Nuclear Generating Plant, Units 1 

& 2; Prairie Island Independent Spent Fuel Storage Installation), CLI-00-14, 52 NRC 

37, 47 (2000)). 

These standards do not allow “mere notice pleading”; the Commission will not accept 

“the filing of a vague, unparticularized” issue, unsupported by alleged fact or expert 

opinion and documentary support. General assertions or conclusions will not suffice. 

However, the threshold admissibility requirements should not be turned into a fortress 

to deny intervention. Power Authority of the State of New York, et al. (James 

FitzPatrick Nuclear Power Plant; Indian Point Nuclear Generating Unit 3), CLI-00-22, 

52 NRC 266, 295 (2000). An individual license transfer adjudication is not an 

appropriate forum for a legislative-like inquiry into issues affecting the entire nuclear 

industry. Id. at 296. 

In the NRC’s Subpart M rulemaking, which established the agency’s current license 

transfer hearing process, the Commission expressed a willingness to review labor-type 

issues to a limited extent. Power Authority of the State of New York, et al. (James 

FitzPatrick Nuclear Power Plant; Indian Point Nuclear Generating Unit 3), CLI-00-22, 

52 NRC 266, 315 (2000), citing Final Rule, “Streamlined Hearing Process for NRC 

Approval of License Transfers,” 63 Fed. Reg. 66,721, 66.723 (Dec. 3, 1998). See also

Fla. Power & Light Co., FPL Energy Seabrook, LLC, FPL Energy Duane Arnold, LLC, 

Constellation Energy Group, Inc. (Calvert Cliffs Nuclear Plant, Units 1 & 2; Calvert 

Cliffs Independent Spent Fuel Storage Installation; Nine Mile Point Nuclear Station, 

Units 1 & 2; R.E. Ginna Nuclear Power Plant; Turkey Point Nuclear Generating Plants, 

Units 3 & 4; St. Lucie Nuclear Power Plant, Units 1 & 2; Seabrook Station; Duane 

Arnold Energy Center), CLI-06-21, 64 NRC 30, 34 (2006) (Although the Commission is 

disinclined to “step into the middle of a labor dispute,” there may be cases where 

employment-related contentions which are “closely tied to specific health-and-safety 

concerns or to potential violations of NRC rules[] can be admitted for a hearing” 

(quoting FitzPatrick, CLI-00-22, 52 NRC at 314, 315)). However, general assertions, 

unsupported by specific facts or expert opinion, that personnel reductions may 

adversely affect health and safety do not meet the Commission’s contention-pleading 

standards (whose “hallmark” is “specificity”) and are inadmissible. Calvert Cliffs, 

CLI-06-21, 64 NRC at 34 (citing FitzPatrick, CLI-00-22, 52 NRC at 315, and quoting

Northeast Nuclear Energy Co. (Millstone Nuclear Power Station, Units 1, 2, & 3), 

CLI-00-18, 52 NRC 129, 132 (2000)). Overall, the Commission generally does not 

involve itself in the personnel decisions of licensees. “[T]he Commission is interested 

in whether the plant poses a risk to the public health and safety, and so long as 

personnel decisions do not impose that risk, NRC regulations and policy do not 
JUNE 2011 GENERAL MATTERS 181 

preclude a licensee from reducing or replacing portions of its staff.” Power Authority of 

the State of New York, et al. (James FitzPatrick Nuclear Power Plant; Indian Point 

Nuclear Generating Unit 3), CLI-00-22, 52 NRC 266, 315 (2000), quoting Oyster 

Creek, CLI-00-6, 51 NRC at 214, and citing Nuclear Power Corp. (Vermont Yankee 

Nuclear Power Station), CLI-00-20, 52 NRC 151, 170 n.1600 (2000). 

The Commission’s license transfer hearings under Subpart M are designed solely to 

adjudicate genuine health-and-safety disputes arising out of license transfers. “The 

grant of hearings merely on the broad assertion that contentious labor controversies 

will lead to deleterious health and safety consequences would have no stopping point 

and would risk converting [the NRC] into a labor relations forum, contrary to [the 

Commission’s] statutory mission and at a significant cost in resources and effort.” 

Power Authority of the State of New York, et al. (James FitzPatrick Nuclear Power 

Plant; Indian Point Nuclear Generating Unit 3), CLI-00-22, 52 NRC 266, 316 (2000). 

Petitioners are obligated to put forward and support contentions when seeking 

intervention, based on the application and information available. See, e.g., Duke 

Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, 

Units 1 & 2), CLI-03-17, 58 NRC 419, 429 (2003). See generally 10 C.F.R. § 2.309(c) 

and (f)(2) (providing for admission of late-filed contentions if based on previously 

unavailable information). The Commission may decide the admissibility of such 

contentions or defer ruling on them, considering the need for access to redacted 

information and other relevant factors. See Power Authority of the State of New York 

and Entergy Nuclear Fitzpatrick, LLC, Entergy Nuclear Indian Point 3, LLC and Entergy 

Nuclear Operations, Inc. (James A. FitzPatrick Nuclear Power Plant and Indian Point 

Nuclear Generating Unit 3), CLI-00-22, 52 NRC 266, 296-319 (2000). 

To demonstrate that contentions are admissible under Subpart M, a petitioner must: 

set forth the [contentions] (factual and/or legal) that petitioner seeks to 

raise,...demonstrate that those [contentions] fall within the scope of the 

proceeding,...demonstrate that those [contentions] are relevant and 

material to the findings necessary to a grant of the license transfer 

application,...show that a genuine dispute exists with the applicant 

regarding the [contentions], and – provide a concise statement of the 

alleged facts or expert opinions supporting petitioner’s position on such 

[contentions], together with references to the sources and documents on 

which petitioner intends to rely. 

Power Authority of the State of New York and Entergy Nuclear Fitzpatrick, LLC, 

Entergy Nuclear Indian Point 3, LLC and Entergy Nuclear Operations, Inc. 

(James A. FitzPatrick Nuclear Power Plant and Indian Point Nuclear Generating 

Unit 3), CLI-00-22, 52 NRC 266, 295 (2000); see also Niagara Mohawk Power 

Corporation, New York State Electric & Gas Corporation, and AmerGen Energy 

Company, LLC (Nine Mile Point, Units 1 & 2), CLI-99-30, 50 NRC 333, 342 (2000). 10 

C.F.R. § 2.309(f). As the Commission observed in FitzPatrick, “[t]hese standards do 

not allow mere notice pleading; the Commission will not accept the filing of a vague, 

unparticularized [contention], unsupported by alleged fact or expert opinion and 

documentary support.” In short, “[g]eneral assertions or conclusions will not suffice.” 

FitzPatrick, CLI-00-22, 52 NRC at 295 (internal quotation marks omitted). Consumers 

Energy Co., Nuclear Management Co, LLC, Entergy Nuclear Palisades, LLC, and 
GENERAL MATTERS 182 JUNE 2011 

Entergy Nuclear Operations, Inc. (Palisades Nuclear Power Plant), CLI-07-18, 

65 NRC399 (2007). 

6.31.2 Standing in License Transfer Proceedings (Also see 2.10.4.1.4, “Standing to 

Intervene in License Transfer Proceedings”) 

The Staff ordinarily does not participate as a party in the adjudicatory portion of license 

transfer proceedings. (See 10 C.F.R. 2.1316(b), (c); see also Consumers Energy Co., 

Nuclear Management Co, LLC, Entergy Nuclear Palisades, LLC, and Entergy Nuclear 

Operations, Inc. (Palisades Nuclear Power Plant), CLI-07-18, 65 NRC 399 (2007). 

To demonstrate standing in a license transfer proceeding, the petitioner must: 

(1) identify an interest in the proceeding by 

(a) alleging a concrete and particularized injury (actual or threatened) that 

(b) is fairly traceable to, and may be affected by, the challenged action 

(e.g., the grant of an application to approve a license transfer), and 

(c) is likely to be redressed by a favorable decision, and 

(d) lies arguably within the “zone of interests” protected by the governing 

statute(s). 

Consumers Energy Co., Nuclear Management Co, LLC, Entergy Nuclear Palisades, 

LLC, and Entergy Nuclear Operations, Inc. (Palisades Nuclear Power Plant), 

CLI-07-18, 65 NRC 399 (2007). 

 

The petitioner must also specify the facts pertaining to that interest. See Port Authority 

of the State of New York (James A. FitzPatrick Nuclear Power Plant; Indian Point 

Nuclear Generating Unit 3), CLI-00-22, 52 NRC 266, 293 (2000); Niagara Mohawk 

Power Corp. (Nine Mile Point Nuclear Station, Units 1 & 2), CLI-99-30, 50 NRC 333, 

340-41 & n.5 (1999) (and cited authority). 

Organizations seeking to intervene in their own right must satisfy the same standing 

requirements as individuals seeking to intervene. Florida Power & Light Co. (Turkey 

Point Nuclear Generating Plant, Units 3 & 4), ALAB-952, 33 NRC 521, 528, aff’d in 

relevant part, CLI-91-13, 34 NRC 185, 187-88 (1991). This is because an 

organization, like an individual, is considered a “person” as defined in 10 C.F.R. § 2.4 

and as used in 10 C.F.R. § 2.309 regarding standing. Consumers Energy Co., Nuclear 

Management Co, LLC, Entergy Nuclear Palisades, LLC, and Entergy Nuclear 

Operations, Inc. (Palisades Nuclear Power Plant), CLI-07-18, 65 NRC 399 (2007). 

In a license transfer case in which petitioners plausibly claim that deficiencies may 

result in a general safety risk affecting their persons or property, the petitioners have 

standing to seek a hearing on the merits of their arguments. Northern States Power 

Co. (Monticello Nuclear Generating Plant; Prairie Island Nuclear Generating Plant, 

Units 1 & 2; Prairie Island Independent Spent Fuel Storage Installation), CLI-00-14, 

52 NRC 37, 47 (2000). 
JUNE 2011 GENERAL MATTERS 183 

The standing of petitioners in a license transfer case, involving simply a change in 

corporate structure, is not affected by the same petitioners having been granted 

standing to intervene in a separate case which involved an addition to the physical 

facility. Northeast Nuclear Energy Co., et al. (Millstone Nuclear Power Station, 

Units 1, 2 & 3), CLI-00-18, 52 NRC 129, 132 (2000) citing Texas Utilities Electric Co.

(Comanche Park Steam Electronic Station, Unit 2), CLI-93-4, 37 NRC 156, 163 (1993). 

Local government entities, such as school districts or townships, have standing to 

intervene in a license transfer case when the township is the locus of the power plant 

because it is in a position analogous to that of an individual living or working within a 

few miles of the plant. Power Authority of the State of New York, et al.

(James FitzPatrick Nuclear Power Plant; Indian Point Nuclear Generating Unit 3), 

CLI-00-22, 52 NRC 266, 294-95 (2000). Assertions that a member lives within the 

service area of the utility that operates a licensed facility or within the same county as 

the facility are insufficiently specific to justify a finding of standing. To demonstrate an 

interest based on proximity, a petitioner must provide greater specificity than merely 

stating that some of its members live, work, or engage in recreation “adjacent” to or 

“near” an NRC-licensed facility. See, e.g., Yankee Atomic Electric Co. (Yankee 

Nuclear Power Station), CLI-94-3, 39 NRC 95, 102 n.10 (1994); Atlas Corp. (Moab, 

Utah Facility), LBP-97-9, 45 NRC 414, 426-27, aff’d, CLI-97-8, 46 NRC 21 (1997). The 

Commission requires fact-specific standing allegations, not conclusory assertions. 

Consumers Energy Co., Nuclear Management Co, LLC, Entergy Nuclear Palisades, 

LLC, and Entergy Nuclear Operations, Inc. (Palisades Nuclear Power Plant), CLI-07-

18, 65 NRC 399 (2007). 

The Commission has granted standing in license transfer proceedings to petitioners 

who raised similar assertions and who were authorized to represent members living or 

active quite close to the site. E.g., Power Authority of the State of New York, et al.

(James FitzPatrick Nuclear Power Plant; Indian Point Nuclear Generating Unit 3), 

CLI-00-22, 52 NRC 266, 293-94 (2000), citing Nuclear Power Corp. (Vermont Yankee 

Nuclear Power Station), CLI-00-20, 52 NRC 151, 163-64 (2000). 

The Commission denied a state public utilities commission standing to represent the 

interests of electric consumers in a proceeding before the Commission when the state 

commission provided no facts or legal arguments suggesting that it represented 

citizens on nuclear safety issues. The Commission stated, “the ‘zone of interests’ test 

for standing in an NRC proceeding does not encompass economic harm that is not 

directly related to environmental or radiological harm.” Pacific Gas and Electric Co.

(Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-02-16, 55 NRC 317, 336 

(2002). 

Employees who work inside a nuclear power plant should ordinarily be accorded 

standing as long as the alleged injury is fairly traceable to the license transfer. Power 

Authority of the State of New York, et al. (James FitzPatrick Nuclear Power Plant; 

Indian Point Nuclear Generating Unit 3), CLI-00-22, 52 NRC 266, 294 (2000). 

However, in an indirect license transfer proceeding, an employee’s standing cannot be 

based on proximity alone but must demonstrate how the transfer could harm the 

employee’s interest. Entergy Nuclear Operations, Inc. and Entergy Nuclear Fitzpatrick, 

LLC (James L. FitzPatrick Nuclear Power Plant) et al., CLI-08-19, 68 NRC 251, 260-61 

(2008) (finding that a union did not have representational standing based on a union 

member and plant employee’s authorization affidavit where the affidavit rested on 
GENERAL MATTERS 184 JUNE 2011 

proximity alone and failed to state precisely how employee was aggrieved by the 

proposed transfer). 

As part of a petitioner’s required demonstration of standing for intervention in a license 

transfer proceeding, the petitioner must show it “has suffered [or will suffer] a distinct 

and palpable harm that constitutes injury-in-fact within the zone of interests arguably 

protected by the governing statute [and that this] injury can fairly be traced to the 

challenged action” (the approval of the license transfer). FirstEnergy Nuclear 

Operating Co. (Beaver Valley Power Station, Units 1 & 2; Davis-Besse Power Station, 

Unit 1; Perry Nuclear Power Plant, Unit 1), CLI-06-2, 63 NRC 9, 13-14 (2006) (quoting

Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), CLI-96-1, 43 NRC 1, 6 

(1996)). 

A union failed to demonstrate standing in an indirect license transfer proceeding where 

it described no causal nexus between the asserted potential injury to its members’ 

“employment and financial well-being” and the indirect transfer of licenses for six of the 

seven facilities at issue, whose employees it did not even claim to represent. Fla. 

Power & Light Co., FPL Energy Seabrook, LLC, FPL Energy Duane Arnold, LLC, 

Constellation Energy Group, Inc. (Calvert Cliffs Nuclear Plant, Units 1 & 2; Calvert 

Cliffs Independent Spent Fuel Storage Installation; Nine Mile Point Nuclear Station, 

Units 1 & 2; R.E. Ginna Nuclear Power Plant; Turkey Point Nuclear Generating Plants, 

Units 3 & 4; St. Lucie Nuclear Power Plant, Units 1 & 2; Seabrook Station; Duane 

Arnold Energy Center), CLI-06-21, 64 NRC 30, 34-35 (2006). 

A union failed to demonstrate standing in an indirect license transfer proceeding where 

it provided no factual support, only speculation, for its alleged link between the 

proposed merger and personnel decisions affecting its members, and where the 

personnel actions of which it complained commenced at least a year before the parent 

corporations filed their transfer applications. Fla. Power & Light Co., FPL Energy 

Seabrook, LLC, FPL Energy Duane Arnold, LLC, Constellation Energy Group, Inc.

(Calvert Cliffs Nuclear Plant, Units 1 & 2; Calvert Cliffs Independent Spent Fuel 

Storage Installation; Nine Mile Point Nuclear Station, Units 1 & 2; R.E. Ginna Nuclear 

Power Plant; Turkey Point Nuclear Generating Plants, Units 3 & 4; St. Lucie Nuclear 

Power Plant, Units 1 & 2; Seabrook Station; Duane Arnold Energy Center), CLI-06-21, 

64 NRC at 30, 35 (2006); Entergy Nuclear Operations, Inc. and Entergy Nuclear 

Fitzpatrick, LLC (James L. FitzPatrick Nuclear Power Plant) et al., CLI-08-19, 68 NRC 

251, 266-67 (2008). 

In a reactor license transfer proceeding, the threatened injury (i.e., the grant of the 

license transfer application) is fairly traceable to the challenged action because the 

alleged increase in risk associated with AmerGen taking over a majority interest in 

Unit 2 could not occur without Commission approval of the application. Similarly, this 

threatened injury can be redressed by a favorable decision because the Commission’s 

denial of the application would prevent the indirect transfer of interest. North Atlantic 

Energy Service Corp. (Seabrook Station, Unit 1) and Northeast Nuclear Energy Co.

(Millstone Station, Unit 3), CLI-99-28, 50 NRC 257, 263 (1999). Cf. North Atlantic 

Energy Service Corp. (Seabrook Station, Unit 1), CLI-99-6, 49 NRC 201, 215 (1999). 

“It is hard to conceive of an entity more entitled to claim standing in a license transfer 

case than a co-licensee whose costs may rise...as a result of an ill-funded license 

transfer. This kind of situation justifies standing based on the ‘real-world 
JUNE 2011 GENERAL MATTERS 185 

consequences that conceivably could harm Petitioners and entitle them to a hearing.’” 

Niagara Mohawk Power Corp., et al. (Nine Mile Point, Units 1 & 2), CLI-99-30, 50 NRC 

333, 341 (1999), quoting North Atlantic Energy Service Corp. (Seabrook Station, Unit 

1), CLI-99-6, 49 NRC 201, 215 quoting Yankee Atomic Electric Co. (Yankee Nuclear 

Power Station), CLI-98-21, 48 NRC 185, 205 (1998); North Atlantic Energy Service 

Corp. (Seabrook Station, Unit 1) and Northeast Nuclear Energy Co. (Millstone Station, 

Unit 3), CLI-99-27, 50 NRC 257, 262-63 (1999). 

The standing of petitioners in a license transfer case, involving simply a change in 

corporate structure, is not affected by the same petitioners having standing to intervene 

in a separate case which involved an addition to the physical facility. Northeast 

Nuclear Energy Co., et al. (Millstone Nuclear Power Station, Units 1, 2, & 3), 

CLI-00-18, 52 NRC 129 (2000) (citing Texas Utilities Electric Co. (Comanche Peak 

Steam Electronic Station, Unit 2), CLI-93-4, 37 NRC 156, 163 (1993)). 

In a license transfer proceeding, the Commission found a petitioner’s “highly general 

comment” that it and its members “compete with [the entities involved in the transfer] 

for generation...services” to be too vague and general to show a real potential for injury 

sufficient for standing. Petitioners failed to explain how their distribution, generation, 

and transmission rights would be adversely affected in connection with certain antitrust 

license conditions that they claimed would allegedly be rendered unenforceable by the 

license transfer. FirstEnergy Nuclear Operating Co. (Beaver Valley Power Station, 

Units 1 & 2; Davis-Besse Power Station, Unit 1; Perry Nuclear Power Plant, Unit 1), 

CLI-06-2, 63 NRC 9, 16 (2006) (citing GPU Nuclear, Inc. (Oyster Creek Nuclear 

Generating Station), CLI-00-6, 51 NRC 193, 203 (2000); Pac. Gas and Elec. Co.

(Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-02-16, 55 NRC 317, 337 

(2002)). 

6.31.3 Scope of License Transfer Proceedings 

The “NRC’s role in evaluation of transferee’s financial qualifications is to decide 

whether the plan as proposed, including the [power sale agreement], will meet our 

financial qualifications regulations.” Pacific Gas & Electric Co. (Diablo Canyon Nuclear 

Power Plant, Units 1 & 2), CLI-02-16, 55 NRC 317, 340 (2002). “If an application lacks 

detail, a Petitioner may meet its pleading burden by providing ‘plausible and 

adequately supported’ claims that the data are either inaccurate or insufficient.” 

Consolidated Edison Co. of New York and Entergy Nuclear Indian Point 2, LLC, and 

Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 1 & 2), 

CLI-01-19, 54 NRC109, 134 (2001); citing GPU Nuclear, Inc. (Oyster Creek Nuclear 

Generating Station), CLI-00-6, 51 NRC 193, 213-214 (2000). 

Claims that a proposed license transfer is not in the public interest are too broad and 

vague to be considered in an NRC adjudication. Consolidated Edison Co., Entergy 

Nuclear Indian Point 2, LLC, and Entergy Nuclear Operations, Inc. (Indian Point 

Nuclear Generating Units 1 & 2), CLI-01-19, 54 NRC 109, 149 (2001). The NRC’s goal 

is to protect the public health and safety, not to make general judgments concerning 

public interest. Consolidated Edison Co., Entergy Nuclear Indian Point 2, LLC, and 

Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 1 & 2), CLI01-19, 54 NRC 109, 149 (2001). Such determinations regarding public policy are best 

left to agencies charged with that mission, such as the Federal Energy Regulatory 

Commission and state public service commissions. Consolidated Edison Co., Entergy 
GENERAL MATTERS 186 JUNE 2011 

Nuclear Indian Point 2, LLC, and Entergy Nuclear Operations, Inc. (Indian Point 

Nuclear Generating Units 1 & 2), CLI-01-19, 54 NRC 109, 149 (2001). 

A license transfer proceeding is not a forum for a full review of all aspects of current 

plant operation. GPU Nuclear, Inc. (Oyster Creek Nuclear Generating Station), 

CLI-00-6, 51 NRC 193, 213-214 (2000), cited in Northeast Nuclear Energy Co., et al.

(Millstone Nuclear Power Station, Units 1, 2, & 3), CLI-00-18, 52 NRC 129, 133 (2000). 

Substantive questions related to plant operation, such as the necessity for future 

remediation, are outside the scope of a license transfer proceeding. Consolidated 

Edison Co., Entergy Nuclear Indian Point 2, LLC, and Entergy Nuclear Operations, Inc.

(Indian Point Nuclear Generating Units 1 & 2), CLI-01-19, 54 NRC 109, 145 (2001). 

The question in indirect transfer cases is whether the proposed shift in ultimate 

corporate control will affect a licensee’s existing financial and technical qualifications. 

See 65 Fed. Reg. at 18,381 (2000). The transfer applicants need provide only 

information bearing on the inquiry at hand, and not more extensive information that 

may be required in other contexts. Northeast Nuclear Energy Co., et al. (Millstone 

Nuclear Power Station, Units 1, 2, & 3), CLI-00-18, 52 NRC 129, 133 (2000). “A 

license transfer proceeding is not a forum for a full review of all aspects of current plant 

operation.” GPU Nuclear, Inc. (Oyster Creek Nuclear Generating Station), CLI-00-6, 

51 NRC 193, 202-03 (2000), cited in Northeast Nuclear Energy Co., et al. (Millstone 

Nuclear Power Station, Units 1, 2, & 3), CLI-00-18, 52 NRC 129, 133 (2000). 

A petitioner in an individual adjudication cannot challenge generic decisions made by 

the Commission in rulemakings. Thus, general attacks on the agency’s competence 

and regulations are not admissible issues in license transfer proceedings. Molycorp, 

Inc. (Washington, Pennsylvania, Temporary Storage of Decommissioning Wastes), 

LBP-00-24, 52 NRC 139 (2000). See also North Atlantic Energy Service Corp.

(Seabrook Station, Unit 1), CLI-99-6, 49 NRC 201, 217 (1999). 

The enforcement or revision of power purchase contracts entered into by private 

parties, subject to NRC regulatory authority, is not within the jurisdiction of the NRC, 

and is outside the scope of a license transfer proceeding. Consolidated Edison Co., 

Entergy Nuclear Indian Point 2, LLC, and Entergy Nuclear Operations, Inc. (Indian 

Point Nuclear Generating Units 1 & 2), CLI-01-19, 54 NRC 109, 139 (2001). 

A license transfer hearing is not the proper forum in which to conduct a full-scale 

health-and-safety review of a plant. Power Authority of the State of New York, et al.

(James FitzPatrick Nuclear Power Plant; Indian Point Nuclear Generating Unit 3), 

CLI-00-22, 52 NRC 266, 311 (2000), quoting Vermont Yankee Nuclear Power Corp.

(Vermont Yankee Nuclear Power Station), CLI-00-20, 52 NRC 151, 169 (2000), and

citing GPU Nuclear, Inc. (Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 

193, 213, 214 (2000). A petitioner may file a petition for Staff enforcement pursuant 

to10 C.F.R. § 2.206 if it is concerned about current safety issues, citing Vermont 

Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), CLI-00-20, 52 

NRC 151, 169 n.14 (2000). 

The NRC’s responsibility in license transfer cases “is to protect the health and safety of 

the nuclear workforce and general population by ensuring the safe use of nuclear 

power.” Consolidated Edison Co., Entergy Nuclear Indian Point 2, LLC, and Entergy 

Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 1 & 2), CLI-01-19, 
JUNE 2011 GENERAL MATTERS 187 

54 NRC 109, 140 (2001). Issues that are not in conflict with Commission jurisdiction 

and are properly contested under an individual state’s law, such as contractual matters, 

are issues for the state to handle and should not be a part of an NRC license transfer 

proceeding. Consolidated Edison, Entergy Nuclear Indian Point 2, LLC, and Entergy 

Nuclear Operations, Inc. (Indian Point Units 1 & 2), CLI-01-19, 54 NRC 109, 140 

(2001). 

The Commission has regulations at 10 C.F.R. § 50.54(m) that require specific staffing 

levels and qualifications for key positions necessary to operate a plant safely. Other 

than those specific positions, the licensee has a responsibility to ensure that it has 

adequate staff to meet the Commission’s regulatory requirements. If a licensee’s staff 

reductions or other cost-cutting decisions result in its being out of compliance with NRC 

regulations, then the agency can and will take the necessary enforcement action to 

ensure the public health and safety. However, so long as personnel decisions do not 

impose a risk to the public health and safety, NRC regulations and policy do not 

preclude a licensee from reducing or replacing portions of its staff. Power Authority of 

the State of New York, et al. (James FitzPatrick Nuclear Power Plant; Indian Point 

Nuclear Generating Unit 3), CLI-00-22, 52 NRC 266, 313 (2000), citing GPU Nuclear, 

Inc. (Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 209, 214 

(2000). An intervenor’s speculation about the likelihood of staff reductions is 

insufficient to trigger a hearing on this issue. Power Authority of the State of New York, 

et al. (James FitzPatrick Nuclear Power Plant; Indian Point Nuclear Generating Unit 3), 

CLI-00-22, 52 NRC 266, 313 (2000). 

In a license transfer adjudication, petitioners who have been granted access to an 

applicant’s or licensee’s proprietary information must show that any new or revised 

contentions could not have been submitted without the requested access to the 

redacted proprietary information in the license transfer application. If petitioners cannot 

make this showing, then they will have to meet not only the contention requirements 

set forth above, but also the late-filing requirements set forth in 10 C.F.R. § 2.309(c). 

Consumers Energy Co., Nuclear Management Co, LLC, Entergy Nuclear Palisades, 

LLC, and Entergy Nuclear Operations, Inc. (Palisades Nuclear Power Plant), 

CLI-07-18, 65 NRC 399 (2007). 

New licensees must meet all requirements of 10 C.F.R. § 50.47 and Appendix E to 

10 C.F.R. Part 50 concerning emergency planning and preparedness. For the issue to 

be admissible at a license transfer hearing, the petitioner must allege with supporting 

facts that the new licensee is likely to violate the NRC’s emergency planning rules. 

Power Authority of the State of New York, et al. (James FitzPatrick Nuclear Power 

Plant; Indian Point Nuclear Generating Unit 3), CLI-00-22, 52 NRC 266, 317 (2000). 

A plant’s proximity to various cities, towns, entertainment centers, and military facilities 

is not relevant to the question whether to approve the license transfer to that plant. 

Power Authority of the State of New York, et al. (James FitzPatrick Nuclear Power 

Plant; Indian Point Nuclear Generating Unit 3), CLI-00-22, 52 NRC 266, 317 (2000). 

The Commission denied a petitioner’s request to arrange for an independent analysis 

of plants’ conditions based on “historical problems” in the NRC’s Region I since such 

an inquiry would go considerably beyond the scope of the license transfer proceeding. 

Power Authority of the State of New York, et al. (James FitzPatrick Nuclear Power 

Plant; Indian Point Nuclear Generating Unit 3), CLI-00-22, 52 NRC 266, 318 (2000), 
GENERAL MATTERS 188 JUNE 2011 

citing, Vermont Yankee, CLI-00-20, 52 NRC at 171 (2000); GPU Nuclear, Inc. (Oyster 

Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 210 (2000); see Final Rule, 

Rules of Practice for Domestic Licensing Proceedings – Procedural Changes in the 

Hearing Process, 54 Fed. Reg. 33,168, 33,171 (Aug. 11, 1989). 

A petitioner’s contentions regarding the overall performance of NRC’s Region I office in 

overseeing a plant for which a license transfer was being considered were deemed to 

be far outside the scope of a license transfer proceeding. Vermont Yankee Nuclear 

Power Corp., et al. (Vermont Yankee Nuclear Power Station), CLI-00-20, 52 NRC 151, 

171 (2000). 

In a license transfer proceeding, the Commission held that where both petitioners have 

independently met the requirements for participation, the Presiding Officer may 

provisionally permit petitioners to adopt each other’s issues early in the proceeding. 

Consolidated Edison Co., Entergy Nuclear Indian Point 2, LLC, and Entergy Nuclear 

Operations, Inc. (Indian Point Nuclear Generating Units 1 & 2), CLI-01-19, 54 NRC 

109, 132 (2001). If the primary sponsor of a contention withdraws from the proceeding, 

the remaining petitioner must demonstrate that it can independently litigate the issue. 

If the petitioner cannot make such a showing, the issue is subject to dismissal prior to 

hearing. Consolidated Edison Co., Entergy Nuclear Indian Point 2, LLC, and Entergy 

Nuclear Operations, Inc. (Indian Point, Units 1 & 2), CLI-01-19, 54 NRC 109, 132 

(2001). The Commission cautioned that it did not “give carte blanche approval of this 

practice of incorporation by reference, particularly in cases where it would have the 

effect of circumventing NRC-prescribed page limits or specificity requirements.” 

Consolidated Edison Co., Entergy Nuclear Indian Point 2, LLC, and Entergy Nuclear 

Operations, Inc. (Indian Point Nuclear Generating Units 1 & 2), CLI-01-19, 54 NRC 

109, 132-33 (2001). Incorporation should also be denied to parties who merely 

establish standing and then attempt to incorporate issues of other petitioners. 

Consolidated Edison Co., Entergy Nuclear Indian Point 2, LLC, and Entergy Nuclear 

Operations, Inc. (Indian Point Nuclear Generating Units 1 & 2), CLI-01-19, 54 NRC 

109, 133 (2001). Incorporation by reference would also be improper in cases where a 

petitioner has not independently established compliance with requirements for 

admission in its own pleadings by submitting at least one admissible contention. 

Consolidated Edison Co., Entergy Nuclear Indian Point 2, LLC, and Entergy Nuclear 

Operations, Inc. (Indian Point Nuclear Generating Units 1 & 2), CLI-01-19, 54 NRC 

109, 133 (2001). 

6.31.3.1 Consideration of Financial Qualifications 

Outside of the reactor context, it is sufficient for a license applicant to identify 

adequate mechanisms to demonstrate reasonable financial assurance, such as 

license conditions and other commitments. Private Fuel Storage, L.L.C.

(Independent Spent Fuel Storage Installation), CLI-00-13, 52 NRC 23, 30 (2000) 

(citing Louisiana Energy Services (Claiborne Enrichment Center), CLI-97-15, 

46 NRC 294 (1997)). In a license transfer proceeding, the NRC’s financial 

qualifications rule is satisfied if the applicant provides a cost and revenue projection 

for the first five years of operation that predicts sufficient revenue to cover operating 

costs. GPU Nuclear, Inc. (Oyster Creek Nuclear Generating Station), CLI-00-6, 

51 NRC 193, 206-08 (2000), cited in Vermont Yankee Nuclear Power Corp., et al.

(Vermont Yankee Nuclear Power Station), CLI-00-20, 52 NRC 151, 176 (2000). 
JUNE 2011 GENERAL MATTERS 189 

In a case of a license transfer where the new owner and the new operator of the 

nuclear power plant facility is not an electric utility, as defined in applicable 

regulations, the transferee must demonstrate its financial qualifications to own 

and/or operate the plant. Consolidated Edison Co., Entergy Nuclear Indian Point 2, 

LLC, and Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating 

Units 1 & 2), CLI-01-19, 54 NRC 109, 129 (2001), citing 10 C.F.R. § 50.33. 

Pursuant to 10 C.F.R. § 50.33(f)(2), applicants for a license transfer “shall submit 

estimates for total annual operating costs for each of the first five years of operation 

of the facility.” The Commission has interpreted this rule as requiring “data for the 

first five 12-months periods after the proposed transfer....” Consolidated Edison 

Co., Entergy Nuclear Indian Point 2, LLC, and Entergy Nuclear Operations, Inc.

(Indian Point Nuclear Generating Units 1 & 2), CLI-01-19, 54 NRC 109, 131 (2001). 

If the submissions are deemed sufficient, this alone is not grounds for rejecting the 

application. Consolidated Edison Co., Entergy Nuclear Indian Point 2, LLC, and 

Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 1 & 2), CLI01-19, 54 NRC 109, 131 (2001); citing Curators of the University of Missouri, CLI95-1, 41 NRC 71, 95-96 (1995), reconsid. denied, CLI-95-8, 41 NRC 386, 395 

(1995). If the missing data concerning financial qualifications can easily be 

submitted for consideration at the adjudicatory hearing, the Presiding Officer need 

not reject the application. Consolidated Edison Co., Entergy Nuclear Indian Point 2, 

LLC, and Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating 

Units 1 & 2), CLI-01-19, 54 NRC 109, 131 (2001). 

Where a petitioner raises a genuine issue about the accuracy or plausibility of an 

applicant’s cost and revenue projections, the petitioner is entitled to a hearing. 

North Atlantic Energy Service Corp. (Seabrook Station, Unit 1), CLI-99-6, 

49 NRC 201, 220-21 (1999), cited in Vermont Yankee Nuclear Power Corp., et al.

(Vermont Yankee Nuclear Power Station), CLI-00-20, 52 NRC 151, 176 (2000). 

The adequacy of a corporate parent’s supplemental commitment is not material to 

the NRC’s license transfer decision, absent a demonstrated shortfall in the revenue 

predictions required by 10 C.F.R. § 50.33(f). GPU Nuclear, Inc. (Oyster Creek 

Nuclear Generating Station), CLI-00-6, 51 NRC 193, 205 (2000), cited in Vermont 

Yankee Nuclear Power Corp., et al. (Vermont Yankee Nuclear Power Station), 

CLI-00-20, 52 NRC 151, 177 (2000). 

Consideration of supplemental funding is not warranted where the applicant has not 

relied on supplemental funding as a basis for its financial qualifications. 

Consolidated Edison Co., Entergy Nuclear Indian Point 2, LLC, and Entergy Nuclear 

Operations, Inc. (Indian Point Nuclear Generating Units 1 & 2), CLI-01-19, 54 NRC 

109, 139 (2001). 

In a license transfer proceeding, the NRC’s financial qualifications rule is satisfied if 

the applicant provides a cost and revenue projection for the first five years of 

operation that predicts sufficient revenue to cover operating costs. GPU Nuclear, 

Inc. (Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 206-08, 

cited in Vermont Yankee Nuclear Power Corp., et al. (Vermont Yankee Nuclear 

Power Station), CLI-00-20, 52 NRC 151 (2000). In determining the applicable 

financial requirements to be met by applicants in license transfer proceedings, the 

NRC does not need to examine site-specific conditions in calculating the cost of 
GENERAL MATTERS 190 JUNE 2011 

decommissioning. The NRC’s decommissioning funding regulation, 10 C.F.R. 

§ 50.75(c), generically establishes the amount of decommissioning funds that must 

be set aside. Vermont Yankee Nuclear Power Corp., et al. (Vermont Yankee 

Nuclear Power Station), CLI-00-20, 52 NRC 151, 165-166 (2000). 

Under 10 C.F.R. § 50.33(f)(2), the sufficiency vel non of the transferee’s 

supplemental funding does not constitute grounds for a hearing; and the parent 

company guarantee is supplemental information and not material to the financial 

qualifications determination. Power Authority of the State of New York, et al.

(James FitzPatrick Nuclear Power Plant; Indian Point Nuclear Generating Unit 3), 

CLI-00-22, 52 NRC 266, 299-300 (2000), citing Vermont Yankee Nuclear Power 

Corp. (Vermont Yankee Nuclear Power Station), CLI-00-20, 52 NRC 151, 175 

(2000); GPU Nuclear, Inc. (Oyster Creek Nuclear Generating Station), CLI-00-6, 

51 NRC 193, 205 (2000). 

Petitioner can challenge the transferee’s cost and revenue projections if the 

challenge is based on sufficient facts, expert opinion, or documentary support. 

Power Authority of the State of New York, et al. (James FitzPatrick Nuclear Power 

Plant; Indian Point Nuclear Generating Unit 3), CLI-00-22, 52 NRC 266, 300 (2000), 

citing Oyster Creek, CLI-00-6, 5 NRC at 207-08. 

The Commission does not require “absolute certainty” in financial forecasts. Power 

Authority of the State of New York, et al. (James FitzPatrick Nuclear Power Plant; 

Indian Point Nuclear Generating Unit 3), CLI-00-22, 52 NRC 266, 300 (2000), citing

North Atlantic Energy Service Corp. (Seabrook Station, Unit 1), CLI-99-6, 49 NRC 

20, 221-22 (1999). Challenges by intervenors to financial qualifications “ultimately 

will prevail only if [they] can demonstrate relevant certainties significantly greater 

than those that usually cloud business outlooks.” Power Authority of the State of 

New York, et al. (James FitzPatrick Nuclear Power Plant; Indian Point Nuclear 

Generating Unit 3), CLI-00-22, 52 NRC 266, 300 (2000), quoting North Atlantic 

Energy Service Corp. (Seabrook Station, Unit 1), CLI-99-6, 49 NRC 20, 222 (1999). 

A petitioner’s argument that the applicant must meet financial requirements in 

addition to those imposed by NRC regulations constitutes a demand for additional 

rules, but does not provide an adequate basis for a hearing. Power Authority of the 

State of New York, et al. (James FitzPatrick Nuclear Power Plant; Indian Point 

Nuclear Generating Unit 3), CLI-00-22, 52 NRC 266, 301 (2000), n.24, citing

Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), CLI-00-20, 

52 NRC 151, 178 (2000). 

6.31.3.2 Antitrust Considerations 

The AEA does not require, and arguably does not allow, the Commission to conduct 

antitrust evaluations of license transfer applications. As a result, failure by the 

NRC to conduct an antitrust evaluation of a license transfer application does not 

constitute a federal action warranting a NEPA review. Vermont Yankee Nuclear 

Power Corp., et al. (Vermont Yankee Nuclear Power Station), CLI-00-20, 

52 NRC 151, 168 (2000). See also Kansas Gas & Electric Co. (Wolf Creek 

Generating Station, Unit 1), CLI-99-19, 49 NRC 441 (1999); Final Rule, Antitrust 

Review Authority: Clarification, 65 Fed. Reg. 44,649 (July 19, 2000). The fact that 

a particular license transfer may have antitrust implications does not remove it from 
JUNE 2011 GENERAL MATTERS 191 

the NEPA categorical exclusion. Power Authority of the State of New York, et al.

(James FitzPatrick Nuclear Power Plant; Indian Point Nuclear Generating Unit 3), 

CLI-00-22, 52 NRC 266 (2000), quoting Vermont Yankee Nuclear Power Corp.

(Vermont Yankee Nuclear Power Station), CLI-00-20, 52 NRC 151, 167-68 (2000). 

The Commission no longer conducts antitrust reviews in license transfer 

proceedings. Power Authority of the State of New York, et al. (James FitzPatrick 

Nuclear Power Plant; Indian Point Nuclear Generating Unit 3), CLI-00-22, 52 NRC 

266, 318 (2000), citing Vermont Yankee Nuclear Power Corp. (Vermont Yankee 

Nuclear Power Station), CLI-00-20, 52 NRC 151, 168, 174 (2000); GPU Nuclear, 

Inc. (Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 210 (2000); 

Kansas Gas & Electric Co. (Wolf Creek Generating Station, Unit 1), CLI-99-19, 49 

NRC 441 (1999); Final Rule, Antitrust Review Authority: Clarification, 56 Fed. Reg. 

44,649 (July 19, 2000). 

NRC antitrust review of post-operating license transfers is unnecessary from both a 

legal and policy perspective. GPU Nuclear, Inc., et al. (Oyster Creek Nuclear 

Generating Station), CLI-00-6, 51 NRC 193, 210 (2000) (responding to petitioner’s 

concern that corporations may be “stretched too thin in their ability to operate a 

multitude of nuclear reactors”). 

6.31.3.3 Need for EIS Preparation 

License transfers fall within a categorical exclusion for which EISs are not required, 

and the fact that a particular license transfer may have antitrust implications does 

not remove it from the categorical exclusion. Vermont Yankee Nuclear Power 

Corp., et al. (Vermont Yankee Nuclear Power Station), CLI-00-20, 52 NRC 151, 

167-168 (2000). See also 10 C.F.R. § 51.22(c)(21). 

The Commission may reject a petitioner’s request for an EIS on the ground that the 

scope of the proceeding does not include the new owner’s operation of the plant – 

but includes only the transfer of their operating licenses. Power Authority of the 

State of New York, et al. (James FitzPatrick Nuclear Power Plant; Indian Point 

Nuclear Generating Unit 3), CLI-00-22, 52 NRC 266, 309 (2000). 

6.31.3.4 Concurrent Proceedings 

Simultaneous litigation in multiple proceedings does not impose a “tremendous 

burden” upon parties in reactor license transfer proceedings sufficient to suspend 

the NRC proceedings, as such parties are frequently participants in proceedings 

concurrently conducted by other state and federal agencies. Niagara Mohawk 

Power Corp., et al. (Nine Mile Point, Units 1 & 2), CLI-99-30, 50 NRC 333, 343 

(1999). See also Kerr-McGee Corp. (West Chicago Rare Earths Facility), CLI-82-2, 

15 NRC 232, 269 (1982), aff’d, City of West Chicago v. NRC, 701 F.2d 632 (7th Cir. 

1983); Southern California Edison Co. (San Onofre Nuclear Generating Station, 

Units 2 & 3), ALAB-171, 7 AEC 37, 39 (1974). 

The occurrence of concurrent proceedings before a state regulatory agency is not a 

sufficient ground for suspension of a reactor license transfer proceeding, when the 

state agency is reviewing a license transfer under a different statutory authority than 

the NRC (and its conclusion would therefore not be dispositive of issues before the 
GENERAL MATTERS 192 JUNE 2011 

NRC) and when an insufficient explanation of financial burden reduction on the 

parties has not been fully explained. Niagara Mohawk Power Corp., et al. (Nine 

Mile Point, Units 1 & 2), CLI-99-30, 50 NRC 333, 344 (1999). 

6.31.3.5 Decommissioning 

Pursuant to 10 C.F.R. § 50.33(k)(1), a license transfer application must contain 

information pertaining to the adequacy of its funding for decommissioning of the 

facility. Consolidated Edison Co., Entergy Nuclear Indian Point 2, LLC, and Entergy 

Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 1 & 2), CLI-01-19, 

54 NRC 109, 142 (2001). A reactor licensee must provide assurances that it has 

adequate resources to fund decommissioning by one of the methods described in 

10 C.F.R. § 50.75(e). Consolidated Edison Co., Entergy Nuclear Indian Point 2, 

LLC, and Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating 

Units 1 & 2), CLI-01-19, 54 NRC 109, 142 (2001). The Commission has held that 

showing compliance with 10 C.F.R. § 50.75 demonstrates sufficient assurance of 

decommissioning funding. Consolidated Edison Co., Entergy Nuclear Indian Point 

2, LLC, and Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating 

Units 1 & 2), CLI-01-19, 54 NRC 109, 142 (2001); see also North Atlantic Energy 

Service Corp. (Seabrook Station, Unit 1), CLI-99-6, 49 NRC 201, 217 (1999). 

The Commission’s regulations regarding decommissioning funding are intended to 

minimize administrative effort and provide reasonable assurance that funds will be 

available to carry out decommissioning in a manner that protects public health and 

safety. Consolidated Edison Co., Entergy Nuclear Indian Point 2, LLC, and Entergy 

Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 1 & 2), CLI-01-19, 

54 NRC 109, 143 (2001); citing Final Rule: General Design Requirements for 

Decommissioning Nuclear Facilities, 53 Fed. Reg. 24,018, 24,030 (June 27, 1988). 

The generic formulas set out in 10 C.F.R. § 50.75(c) fulfill the dual purpose of the 

rule. Consolidated Edison Co., Entergy Nuclear Indian Point 2, LLC, and Entergy 

Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 1 & 2), CLI-01-19, 

54 NRC 109, 144 (2001). 

“Price-Anderson indemnification agreements continue in effect even after plants 

have ceased permanent operation and are engaged in decommissioning.” Power 

Authority of the State of New York, et al. (James FitzPatrick Nuclear Power Plant; 

Indian Point Nuclear Generating Unit 3), CLI-00-22, 52 NRC 266, 301 (2000), citing

10 C.F.R. § 140.92 and quoting Vermont Yankee Nuclear Power Corp. (Vermont 

Yankee Nuclear Power Station), CLI-00-20, 52 NRC 151, 175 (2000). 

The Commission has accepted the question of whether the applicants’ financial 

assurance arrangement is lawful under 10 C.F.R. § 50.75 as a genuine dispute of 

law and fact that is admissible at a hearing. Power Authority of the State of New

York, et al. (James FitzPatrick Nuclear Power Plant; Indian Point Nuclear 

Generating Unit 3), CLI-00-22, 52 NRC 266, 302 (2000). Other issues which have 

been recognized as appropriate in a hearing on a license transfer are whether NRC 

approval of the transfers will deprive the Commission of authority to require the 

applicant to conduct remediation under decommissioning, and whether, under those 

circumstances, the applicant would no longer have access to the decommissioning 

trust for the remediation it would need to complete. Power Authority of the State of 
JUNE 2011 GENERAL MATTERS 193 

New York, et al. (James FitzPatrick Nuclear Power Plant; Indian Point Nuclear 

Generating Unit 3), CLI-00-22, 52 NRC 266, 307 (2000). 

A petitioner’s challenge to an applicant’s use of the very decommissioning cost 

estimate methodology sanctioned by the Commission’s rules amounts to an 

impermissible collateral attack on 10 C.F.R. § 50.75. Power Authority of the State of 

New York, et al. (James FitzPatrick Nuclear Power Plant; Indian Point Nuclear 

Generating Unit 3), CLI-00-22, 52 NRC 266, 303 (2000); Vermont Yankee Nuclear 

Power Corp. (Vermont Yankee Nuclear Power Station), CLI-00-20, 52 NRC 151, 

165-66 (2000). 

The Commission does not have statutory authority to determine the recipient of 

excess decommissioning funds. Power Authority of the State of New York, et al.

(James FitzPatrick Nuclear Power Plant; Indian Point Nuclear Generating Unit 3), 

CLI-00-22, 52 NRC 266, 305 (2000). 

In addition, once the funds are in the decommissioning trust, withdrawals are limited 

by 10 C.F.R. § 50.82, so that “non-decommissioning” funds (as defined by the NRC) 

could be spent after the NRC-defined “decommissioning” work had been finished or 

committed. Power Authority of the State of New York, et al. (James FitzPatrick 

Nuclear Power Plant; Indian Point Nuclear Generating Unit 3), CLI-00-22, 52 NRC 

266, 308 n.52 (2000). 

The use of site-specific estimates was expressly rejected by the Commission in its 

decommissioning rulemaking, although the Commission did recognize that sitespecific cost estimates may be prepared for rate regulators. Consolidated Edison 

Co., Entergy Nuclear Indian Point 2, LLC, and Entergy Nuclear Operations, Inc.

(Indian Point Nuclear Generating Units 1 & 2), CLI-01-19, 54 NRC 109, 144 (2001); 

citing Final Rule: Financial Assurances Requirements for Decommissioning Nuclear 

Power Reactors, 63 Fed. Reg. 50,465, 50,469-69 (Sep. 22, 1998); Final Rule: 

General Design Requirements for Decommissioning Nuclear Facilities, 

53 Fed. Reg. 24,018, 24,030 (June 27, 1988). 

NRC regulations do not require a license transfer application to provide an estimate 

of the actual decommissioning and site cleanup costs. Instead the Commission’s 

decommissioning funding regulation under 10 C.F.R. § 50.75(c) generically 

establishes the amount of decommissioning funds that must be set aside. A 

petitioner cannot challenge the regulation in a license transfer adjudication. The 

NRC’s decommissioning funding rule reflects a deliberate decision not to require 

site-specific estimates in setting decommissioning funding levels. Power Authority 

of the State of New York, et al. (James FitzPatrick Nuclear Power Plant; Indian Point 

Nuclear Generating Unit 3), CLI-00-22, 52 NRC 266, 308 (2000), citing Northern 

States Power Co. (Monticello Nuclear Generating Plant; Prairie Island Nuclear 

Generating Plant, Units 1 & 2; Prairie Island Independent Spent Fuel Storage 

Installation), CLI-00-14, 52 NRC 37, reconsid. denied, CLI-00-14, 52 NRC 37, 59 

(2000). 

The argument that decommissioning technology is still in an experimental stage is 

considered a collateral attack on 10 C.F.R. § 50.75(c) establishing the amount that 

must be set aside, and is thus invalid. Power Authority of the State of New York, 

et al. (James FitzPatrick Nuclear Power Plant; Indian Point Nuclear Generating 
GENERAL MATTERS 194 JUNE 2011 

Unit 3), CLI-00-22, 52 NRC 266, 309 (2000), quoting Vermont Yankee Nuclear 

Power Corp. (Vermont Yankee Nuclear Power Station), CLI-00-20, 52 NRC 151, 

167 n.9 (2000) and citing Northern States Power Co. (Monticello Nuclear 

Generating Plant; Prairie Island Nuclear Generating Plant, Units 1 & 2; Prairie Island 

Independent Spent Fuel Storage Installation), CLI-00-14, 52 NRC 37, reconsid.

denied, CLI-00-14, 52 NRC 37, 59 (2000). 

NRC regulations regarding decommissioning funding do not require the inclusion 

of costs related to nonradioactive structures or materials beyond those necessary 

to terminate an NRC license. Consolidated Edison Co., Entergy Nuclear Indian 

Point 2, LLC, and Entergy Nuclear Operations, Inc. (Indian Point Nuclear 

Generating Units 1 & 2), CLI-01-19, 54 NRC 109, 145 (2001). 

6.31.4 Motions for Stay/Suspension of Proceedings 

When ruling on stay motion in a license transfer proceeding, the Commission applies 

the four-pronged test set forth in 10 C.F.R. § 2.1327(d): 

 (1) Whether the requestor will be irreparably injured unless a stay is granted. 

 (2) Whether the requestor has made a strong showing that it is unlikely to 

 prevail on the merits. 

 (3) Whether the granting of a stay would harm other participants; and 

 (4) Where the public interest lies. 

Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), 

CLI-00-17, 52 NRC 79 (2000). 

A temporary suspension of a license transfer proceeding where several parties have 

not yet exercised their right of first refusal to buy out a co-owner’s share of a reactor 

does not contravene the Commission’s stated policy of expedition in Subpart M 

proceedings, because it would not be sensible to require the expenditure of both public 

and co-owner funds in a proceeding, part or all of which may well be rendered moot in 

the immediate future. See Final Rule, Streamlined Hearing Process for NRC Approval 

of License Transfers, 63 Fed. Reg. 66,721, 66,722 (Dec. 3, 1998) (Subpart M 

“procedures are designed to provide for public participation...while at the same time 

providing an efficient process that recognizes the time-sensitivity normally present in 

transfer cases.”) Niagara Mohawk Power Corp., et al. (Nine Mile Point, Units 1 & 2), 

CLI-99-30, 50 NRC 333, 343 (1999). 

The pendency of parallel proceedings before other forums is not an adequate ground 

to stay a license transfer adjudication. Power Authority of the State of New York, et al.

(James FitzPatrick Nuclear Power Plant; Indian Point Nuclear Generating Unit 3), 

CLI-00-22, 52 NRC 266, 289 (2000), citing Niagara Mohawk Power Corp. (Nine Mile 

Point Nuclear Station, Units 1 & 2), CLI-99-30, 50 NRC 333, 343-44 (1999). But the 

parties should inform the Commission promptly of any court or administrative decision 

that might in any way relate to, or render moot, all or part of the proceeding. Power 

Authority of the State of New York, et al. (James FitzPatrick Nuclear Power Plant; 

Indian Point Nuclear Generating Unit 3), CLI-00-22, 52 NRC 266, 289 (2000). 

When a number of arguments apply to the plants for which a request for a joint license 

transfer hearing was made, and the Commission’s resources would be better spent by 
JUNE 2011 GENERAL MATTERS 195 

addressing these arguments only once, the Commission may grant the motion to 

consolidate the license transfer proceedings. Power Authority of the State of New 

York, et al. (James FitzPatrick Nuclear Power Plant; Indian Point Nuclear Generating 

Unit 3), CLI-00-22, 52 NRC 266, 288 (2000). 

6.32 Television and Still Camera Coverage of NRC Proceedings

Under current agency practice, any individual or organization may videotape a 

Commission-conducted open meeting so long as their activities do not disrupt the 

proceeding. See U.S. Nuclear Regulatory Commission, “A Guide to Open Meetings,” 

NUREG/BR-0128, Rev. 2 (4th ed.); see also Yankee Atomic Electric Co. (Yankee Nuclear 

Power Station), LBP-96-14, 44 NRC 3, 5 (1996). 

Videotaping of a Board proceeding must be done in a manner that does not present an 

unacceptable distraction to the participants or otherwise disrupt the proceeding. The 

Board may terminate videotaping at any time it determines a videotape-related activity is 

disruptive (i.e., interferes with the good order of the proceeding). Yankee Atomic Electric 

Co. (Yankee Nuclear Power Station), LBP-96-14, 44 NRC 3, 6 (1996). 

Anyone videotaping a proceeding held in the Atomic Safety and Licensing Board Panel 

Hearing Room must abide by the following conditions: 

 1. Cameras must remain stationary in the designated camera area of the 

 Licensing Board Panel Room. 

 2. No additional lighting is permitted. 

 3. No additional microphones will be permitted outside of the designated 

 camera area. A connection is available in the designated camera area 

 that provides a direct feed from the hearing room audio system. 

Yankee Atomic Electric Co. (Yankee Nuclear Power Station), LBP-96-14, 44 NRC 3, 6 

(1996). 

As provided in the 1978 Commission policy statement, 43 Fed. Reg. 4,294 (1978), when a 

Licensing Board is using other facilities, such as a state or federal courtroom, the Board 

generally will follow the camera policy governing that facility, even if it is stricter than the 

agency’s camera policy. However, in order to prevent disruption of the proceeding and 

maintain an appropriate judicial atmosphere, the Board reserves the right to impose 

restrictions beyond those generally used at the facility. Yankee Atomic Electric Co., 

LBP-96-14, 44 NRC 3, 6 n.2 (1996). 

6.33 National Historic Preservation Act Requirements

The National Historic Preservation Act (NHPA) contains no prohibition against a “phased 

review” of a property. Section 470(f) of that statute provides only that a federal agency 

shall, “prior to the issuance of any license...Take into account the effect of the undertaking 

on any district, site, building, structure, or object that is included in or eligible for inclusion 

in the National Register.” Nor does federal case law suggest any such prohibitions. The 

regulations implementing Section 470(f) are ambiguous on the matter. Hydro Resources, 

Inc., CLI-98-8, 47 NRC 314, 323 n.15 (1998); Hydro Resources, Inc., CLI-99-22, 50 NRC 

3, 12 (1999). 
GENERAL MATTERS 196 JUNE 2011 

Absent a clear congressional statement, adjudicatory tribunals should not infer that 

Congress intended to alter equity practices such as the standards for reviewing stay 

requests. The National Historic Preservation Act contains no such clear congressional 

statement. Hydro Resources, Inc., CLI-98-8, 47 NRC 314, 323 (1998). 

Unlike NEPA, consideration of alternatives under the NHPA comes into play only if the 

project will have an adverse effect on historic properties and only after that determination 

is made. USEC, Inc. (American Centrifuge Plant), CLI-06-9, 63 NRC 433, 448-49 (2006). 

Section 106 of the NHPA provided the Oglala Sioux Tribe a procedural right to protect its 

interests in cultural resources. Crow Butte Resources, Inc. (In Situ Leach Facility, 

Crawford, Nebraska), LBP-08-24, 68 NRC 691, 714-15 (2008). Failure to follow 

consultation requirements of Section 106 would have been a violation of this right, and 

would therefore be an injury within the zone of interest protected by the NHPA. Id. at 715. 

This injury was sufficient to establish standing for the tribe. Id.

Section 106 of the NHPA provides a federally recognized Indian tribe with a procedural 

right to protect its interest in cultural resources. The petitioner’s interest, as a federally 

recognized Indian tribe, was that there were cultural resources that had not been properly 

identified and may have been harmed as a result of activities authorized per the grant of a 

license by the NRC. Without the consultation to which the petitioner was entitled pursuant 

to Section 106 of the NHPA, culturally significant resources might have gone unidentified 

and unprotected. Therefore, the petitioner’s threatened injury was considered within the 

zone of interests protected by the NHPA and, as such, the petitioner was accorded 

standing. Powertech (USA), Inc. (Dewey-Burdock In Situ Uranium Recovery Facility) 

LBP-10-16, 71 NRC at __ (slip op. at 25) (Aug. 5, 2010). 

Only Indian tribes that appear on the Department of the Interior’s list of recognized tribes 

have consultation rights under Section 106 of the NHPA. As the petitioner was not on that 

list, any claims of injury as a result of the NRC Staff’s failure to consult with the petitioner 

pursuant to Section 106 of the NHPA were not cognizable in the proceeding. Cogema 

Mining, Inc. (Irigaray and Christensen Ranch Facilities), LBP-09-13, 70 NRC 168, 188 

(2009). 

6.34 Trust Responsibility

“The trust responsibility requires federal agencies to take actions or refrain from taking 

actions ‘in fulfillment of [Congress’s] duty to protect the Indians.’” Cogema Mining, Inc.

(Irigaray and Christensen Ranch Facilities), LBP-09-13, 70 NRC 168, 189 (2009). (quoting

United States v. Navajo Nation, 537 U.S. 488, 515 (2003)). However, when the petitioner 

has presented no plausible chain of causation whereby it or its members would be 

harmed by the proposed operations that would be authorized by the grant of the license, 

the trust responsibility is not triggered. Id.

6.35 Native American Graves Protection and Repatriation Act Requirements

Under the Native American Graves Protection and Repatriation Act, consultation and 

concurrence of the affected tribe take place prior to the intentional removal from or 

excavation of Native American cultural items from federal or tribal lands. Where no 

intentional removal or excavation of cultural items is planned, the applicable regulatory 

provision is 43 C.F.R. § 10.4, which applies to inadvertent discoveries of human remains, 
JUNE 2011 GENERAL MATTERS 197 

funeral objects, sacred objects, or objects of cultural patrimony. The regulations generally 

do not require prior consultation or concurrence with the affected tribe for unintentional 

activities. Hydro Resources, Inc., CLI-99-22, 50 NRC 3, 14-15 (1999). 

6.36 Hybrid Procedures under Subpart K (Also see Section 6.16.9) 

The procedures in Subpart K apply to contested proceedings on applications filed after 

January 7, 1983, for a license or license amendment under Part 50 of this chapter, to 

expand the spent fuel storage capacity at the site of a civilian nuclear power plant, through 

the use of high density fuel storage racks, fuel rod compaction, the transshipment of spent 

nuclear fuel to another civilian nuclear power reactor within the same utility system, the 

construction of additional spent nuclear fuel pool capacity or dry storage capacity or by 

other means. See 10 C.F.R. § 2.1103. 

The Subpart K process empowers a Licensing Board to resolve fact questions, when it 

can do so accurately, at the abbreviated hearing stage. Pacific Gas and Electric 

Company (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), 

CLI-08-26, 68 NRC 509, 514 (2008); Carolina Power & Light Co. (Shearon Harris Nuclear 

Power Plant), CLI-01-11, 53 NRC 370, 383 (2001). 

Subpart K establishes a two-part test to determine whether a full evidentiary hearing is 

warranted: (1) there must be a genuine and substantial dispute of fact “which can only be 

resolved with sufficient accuracy” by a further adjudicatory hearing; and (2) the 

Commission’s decision “is likely to depend in whole or in part on the resolution of that 

dispute.” See 10 C.F.R. § 2.1115(b). Carolina Power & Light Co. (Shearon Harris 

Nuclear Power Plant), CLI-01-11, 53 NRC 370, 383 (2001). 

Subpart K derives from the Nuclear Waste Policy Act (NWPA), where Congress called on 

the Commission to “encourage and expedite” onsite spent fuel storage. See

42 U.S.C. § 10151(a)(2). To help accomplish this goal, the NWPA required the 

Commission, “at the request of any party,” to employ an abbreviated hearing process – 

i.e., discovery, written submissions, and oral argument. See 42 U.S.C. § 10154. The 

NWPA authorized the Commission to convene additional “adjudicatory” hearings “only” 

where critical fact questions could not otherwise be answered “with sufficient accuracy.” 

See 42 U.S.C. § 10154(b)(1)(A). Pacific Gas and Electric Company (Diablo Canyon 

Power Plant Independent Spent Fuel Storage Installation), CLI-08-26, 68 NRC 509, 514 

(2008); Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), CLI-01-11, 

53 NRC 370, 384 (2001). 

In promulgating Section 2.1115(b) of Subpart K, the Commission used the same test 

described in the NWPA at 42 U.S.C. § 10154(b)(1). The statutory criteria are quite strict 

and are designed to ensure that the hearing is focused exclusively on real issues. They 

are similar to the standards under the Commission’s existing rule for determining whether 

summary disposition is warranted. They go further, however, in requiring a finding that 

adjudication is necessary to resolution of the dispute and placing the burden of 

demonstrating the existence of a genuine and substantial dispute of material fact on the 

party requesting adjudication. Carolina Power & Light Co. (Shearon Harris Nuclear Power 

Plant), CLI-01-11, 53 NRC 370, 383-84 (2001), quoting, Final Rule, Hybrid Hearing 

Procedures for Expansion of Spent Nuclear Fuel Storage Capacity at Civilian Nuclear 

Power Reactors, 50 Fed. Reg. 41,662, 41,667 (Oct. 15, 1985). 
GENERAL MATTERS 198 JUNE 2011 

Subpart K proceedings are intended to be decided “on the papers” with no live evidentiary 

hearing unless issues such as witness credibility require it. Pacific Gas & Electric Co.

(Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), LBP-03-11, 

58 NRC 47, 57-58 (2003). 

It seems unlikely that Congress intended the Commission to enact Subpart K simply to 

replicate the NRC’s existing summary disposition practice. Congress “cannot be 

presumed to do a futile thing.” Halverson v. Slater, 129 F.3d 180, 184 (D.C. Cir. 1997). 

Accord Independent Insurance Agents of America, Inc. v. Hawke, 211 F.3d 638, 643 

(D.C. Cir. 2000). Hence, Subpart K extends beyond the NRC’s pre-existing summary 

disposition practice. Unlike summary disposition, which requires an additional evidentiary 

hearing whenever a Licensing Board finds, based on the papers filed, that there remains a 

genuine issue of material fact, Subpart K’s procedure authorizes the Board to resolve

disputed facts based on the evidentiary record made in the abbreviated hearing, without 

convening a full evidentiary hearing, if the Board can do so with “sufficient accuracy.” 

Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), CLI-01-11, 53 NRC 

370, 384-85 (2001). 

Subpart K directs the Board to “[dispose] of any issues of law or fact not designated for 

resolution in an adjudicatory hearing.” See 10 C.F.R. § 2.1115(a)(2) (emphasis added). 

“Issues” are, by definition, points of debate or dispute. To “dispose” of issues, a Board 

must resolve them. To move from Subpart K’s abbreviated hearing stage to an additional 

evidentiary hearing, a Licensing Board must make a specific determination that issues 

“can only be resolved with sufficient accuracy” at such a hearing. See

10 C.F.R. § 2.1115(b)(1) (emphasis added). Carolina Power & Light Co. (Shearon Harris 

Nuclear Power Plant), CLI-01-11, 53 NRC 370 (2001). 

The Statement of Considerations for Subpart K reinforces the rule’s text: 

The appropriate evidentiary weight to be given an expert’s technical 

judgment will depend, for the most part, on the expert’s testimony and 

professional qualifications. In some circumstances, it may be possible to 

make such a determination without the need for an adjudicatory hearing. 

The presiding officer must decide, based on the sworn testimony and 

sworn written submissions, whether the differing technical judgment gives 

rise to a genuine and substantial dispute of fact that must be resolved in 

an adjudicatory hearing. 

See 50 Fed. Reg. at 41,667 (1985). Carolina Power & Light Co. (Shearon Harris Nuclear 

Power Plant), CLI-01-11, 53 NRC 370, 385 (2001). 

The NWPA and the NRC rule implementing it (Subpart K) contemplate merits rulings by 

Licensing Boards based on the parties’ written submissions and oral arguments, except 

where a Board expressly finds that “accuracy” demands a full-scale evidentiary hearing. 

Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), CLI-01-11, 53 NRC 

370, 385 (2001). Under 10 C.F.R. § 2.1115(b), a two-part test is used to determine 

whether a full evidentiary hearing is warranted on a contention in a 10 C.F.R. Part 2, 

Subpart K proceeding: (1) There must be a genuine and substantial dispute of fact which 

can only be resolved with sufficient accuracy by the introduction of evidence in an 

adjudicatory hearing; and (2) the decision of the Commission is likely to depend in whole 

or in part on the resolution of that dispute. Northeast Nuclear Energy Co. (Millstone 
JUNE 2011 GENERAL MATTERS 199 

Nuclear Power Station, Unit 3), CLI-01-3, 53 NRC 22, 26 (2001). The criteria of 10 C.F.R. 

§ 2.1115(b), for determining whether a full evidentiary hearing is warranted are strict and 

are designed to ensure that the hearing is focused exclusively on real issues. They are 

similar to the standards for determining whether summary disposition is warranted. They 

go further in requiring a finding that adjudication is necessary to resolution of the dispute 

and in placing the burden of demonstrating the existence of a genuine and substantial 

dispute of material fact on the party requesting adjudication. Northeast Nuclear Energy 

Co. (Millstone Nuclear Power Station, Unit 3), CLI-01-3, 53 NRC 22, 26 (2001) n.5. 

Licensing Boards are fully capable of making fair and reasonable merits decisions on 

technical issues after receiving written submissions and hearing oral arguments. The 

Commission is a technically oriented administrative agency, an orientation that is reflected 

in the makeup of its Licensing Boards. Most Licensing Boards have two, and all have at 

least one, technically trained member. In Subpart K cases, Licensing Boards are 

expected to assess the appropriate evidentiary weight to be given competing experts’ 

technical judgments, as reflected in their reports and affidavits. The inquiry is similar to 

that performed by presiding officers in materials licensing cases, where fact disputes 

normally are decided “on the papers,” with no live evidentiary hearing. See, e.g., Hydro 

Resources, Inc., CLI-01-4, 53 NRC at 45; Curators of the University of Missouri, CLI-95-1, 

41 NRC at 118-20. The NRC’s administrative judges, in other words, and the 

Commission itself, are accustomed to resolving technical disputes without resort to 

in-person testimony. Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), 

CLI-01-11, 53 NRC 370, 385-86 (2001). 

There may be issues, such as those involving witness credibility, that cannot be resolved 

absent face-to-face observation and assessment of the witness. Or there may be issues 

involving expert or other testimony where key questions require follow-up and dialogue to 

be answered “with sufficient accuracy.” In these kinds of cases, Subpart K contemplates 

further evidentiary hearings. Many issues, however, particularly those involving 

competing technical or expert presentations, frequently are amenable to resolution by a 

Licensing Board based on its evaluation of the thoroughness, sophistication, accuracy, 

and persuasiveness of the parties’ submissions. Carolina Power & Light Co. (Shearon 

Harris Nuclear Power Plant), CLI-01-11, 53 NRC 370, 386 (2001). 

The Commission generally will defer to Licensing Boards’ judgment on when they will 

benefit from hearing live testimony and from direct questioning of experts or other 

witnesses. If a decision can be made judiciously on the basis of written submissions and 

oral argument, the Boards are expected to follow the mandate of the NWPA and 

Subpart K to streamline spent fuel pool expansion proceedings by making the merits 

decision expeditiously, without additional evidentiary hearings. See

42 U.S.C. §§ 10151(a)(2), 10154. Carolina Power & Light Co. (Shearon Harris Nuclear 

Power Plant), CLI-01-11, 53 NRC 370, 386 (2001). 

The Commission is generally not inclined to upset the Board’s fact-driven findings and 

conclusions, particularly where it has weighed the affidavits or submissions of technical 

experts. Where the Board analyzed the parties’ technical submissions carefully and made 

intricate and well-supported findings in a 42-page opinion, the Commission, on appeal, 

saw no basis to redo the Board’s work. Carolina Power & Light Co. (Shearon Harris 

Nuclear Power Plant), CLI-01-11, 53 NRC 370, 388 (2001). 
GENERAL MATTERS 200 JUNE 2011 

The Commission saw no basis for upsetting the Board’s probability estimate or its 

decision against a further evidentiary hearing. Even if a further evidentiary hearing were 

convened, intervenor apparently intends merely to reiterate its critique of the probabilistic 

risk assessment of others (the NRC Staff and the licensee), but not to offer a fresh 

analysis of its own. Under these circumstances, scheduling a further hearing would serve 

only to delay the proceedings and increase the costs for all parties, in direct 

contravention of the NWPA. Carolina Power & Light Co. (Shearon Harris Nuclear Power 

Plant), CLI-01-11, 53 NRC 370, 389 (2001). 

In a 10 C.F.R. Part 2, Subpart K proceeding, general allegations are insufficient to trigger 

an evidentiary hearing. Factual allegations must be supported by experts or documents to 

demonstrate that an evidentiary hearing is warranted. The applicant cannot be required to 

prove that uncertain future events could never happen. Although the ultimate burden of 

persuasion is on the license applicant, the proponent of a contention has the initial burden 

of coming forward with factual issues, not merely conclusory statements and vague 

allegations. Northeast Nuclear Energy Co. (Millstone Nuclear Power Station, Unit 3), 

CLI-01-3, 53 NRC 22, 27 (2001). 

Under 10 C.F.R. § 2.341(b)(4)(1) (formerly § 2.786(b)(4)(1)), the Commission will grant a 

petition for review if the petition raises a “substantial question” whether a finding of 

material fact is clearly erroneous or in conflict with a finding as to the same fact in a 

different proceeding. 

Once an intervenor crosses the admissibility threshold relative to its environmental 

contention, the ultimate burden in a Subpart K proceeding then rests with the proponent of 

the NEPA document – the Staff (and the applicant to the degree it becomes a proponent 

of the Staff’s EIS-related action) – to establish the validity of that determination on the 

question whether there is an EIS preparation trigger. Carolina Power & Light Co.

(Shearon Harris Nuclear Power Plant), LBP-01-9, 53 NRC 239, 249 (2001). 

Subpart K presentations cannot be supplemented. Pacific Gas and Electric Company

(Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), CLI-08-26, 

68 NRC 509, 524 (2008) citing 10 C.F.R. § 2.1113. 

6.37 Agreement State Issues

In reviewing a petition under 10 C.F.R. § 2.206 to revoke, suspend or modify an 

agreement state license, the NRC will respond only to common defense and security 

issues, not public health and safety issues. For agreement state licenses, public health 

and safety issues are the domain of the agreement state, while the NRC retains authority 

only to regulate issues relating to the common defense and security. Radiac Research 

Corp. (License No. NYDOL 1944-1879), DD-04-4, 60 NRC 387, 389, 396 (2004). 

6.38 Generic Security Issues

The NRC will not analyze the petitioner’s concern that the fears of local residents would 

make the facilities attractive terrorist targets. While psychological fear exists, the NRC 

can only evaluate the technical merits of the common defense and security issues that 

may contribute to the concerned citizens’ fears and openly and accurately communicate 

those findings. Radiac Research Corp., DD-04-4, 60 NRC 387, 392 (2004) (reviewing a 
JUNE 2011 GENERAL MATTERS 201 

petition under 10 C.F.R. § 2.206 to revoke, suspend or modify an agreement state 

license). 

6.39 Deferred Plant Status 

The Commission has established a policy statement containing procedures that apply to 

nuclear power plants in a deferred or terminated plant status and when they are being 

reactivated. A deferred plant means a nuclear power plant that has ceased construction 

or reduced activity to maintenance level, while maintaining in effect a construction permit 

(CP). A terminated plant is a nuclear power plant that has announced that construction 

has permanently stopped, but still has a valid CP. Deferred plant licensee is required to 

protect and retain records, maintain and preserve equipment and materials, and 

implement a quality assurance program. Reactivation of construction is announced at 

least 120 days before construction is resumed via a letter from the CP licensee to the 

NRC. If a plant in terminated status implements the requirements of a deferred plant, a 

terminated plant may then be reactivated under the same provisions as a deferred plant. 

52 Fed. Reg. 38,077, 38079 (Oct. 14, 1987). 

Deferred and terminated status plants are reminded to ensure that their CPs do not 

expire. 52 Fed. Reg. 38,078 (Oct. 14, 1987). On a case-by case basis, the Commission 

under its interpretation of the broad discretion provided by the AEA has authorized the 

reinstatement of the CPs of deferred plants that had voluntarily surrendered their 

unexpired CPs, or extension to the completion date of a plant that had inadvertently 

allowed its CP to lapse for a short period of time. See e.g., Tennessee Valley Authority

(Bellefonte Nuclear Plants Units 1 & 2), CLI-10-6, 71 NRC at _ (slip op) (2010); and 

Texas Utilities Electric Company (Comanche Peak Electric Station Unit 1), CLI-86-14, 

23 NRC 113 (1986), aff’d in Citizens Association for Sound Energy v. NRC, 821 F.2d 725 

(D.C. Cir. 1987). 
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 ___________________________________ 

 Case History Index 

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CASE HISTORY INDEX 

JUNE 2011 CH 1 

NRC ADJUDICATORY DECISIONS (CLIs & ALABs) 

APPEALED TO THE U.S. COURTS (through Aug. 2009) 

Advanced Med. Sys., Inc. (One Factory Row, Geneva, Ohio 44041), CLI-94-6, 39 NRC 285 

(1994), aff’d, Advanced Medical Sys., Inc. v. NRC, 61 F.3d 903 (6th Cir. 1995). 

Advanced Nuclear Fuels Corp. (Import of South African Enriched Uranium Hexafluoride), CLI87-10, 26 NRC 123 (1987), aff’d, Dellums v. NRC, 863 F.2d 968 (D.C. Cir. 1988). 

Alaska Dep’t of Tptn, see State of Alaska Dep’t of Tptn and Pub. Facilities, infra. 

AmerGen Energy Co. (Oyster Creek Nuclear Generating Station), CLI-07-8, 65 NRC 124 

(2007), petition for review filed sub nom. New Jersey Dep’t of Env’t v. NRC, Docket No. 07-2271 

(3rd Cir. April 25, 2007). 

Baltimore Gas & Elec. Co. (Calvert Cliffs Nuclear Power Plant, Units 1 & 2), CLI-98-25, 

48 NRC 325 (1998), petition for review denied, National Whistleblower Ctr. v. NRC, 

208 F.3d 256 (D.C. Cir. 2000), cert. denied, 531 U.S. 1070 (2001). 

Bellotti v. NRC, 725 F.2d 1380 (1983). 

Bauer, see Dr. James E. Bauer, infra. 

Boston Edison Co. (Pilgrim Nuclear Power Station), ALAB-83, 5 AEC 354 (1972), aff’d, Union of 

Concerned Scientists v. AEC, 499 F.2d 1069 (D.C. Cir. 1974). 

Boston Edison Co. (Pilgrim Nuclear Power Station), CLI-82-16, 16 NRC 44 (1982), aff’d, Bellotti 

v. NRC, 725 F.2d 1380 (D.C. Cir. 1983). 

Brodsky v. NRC, 578 F.3d 175 (2d Cir. 2009). 

Calvert Cliffs 3 Nuclear Project, LLC and Unistar Nuclear Operating Services, LLC (Combined 

License Application for Calvert Cliffs, Unit 3), CLI-09-20, 70 NRC __ (Oct. 13, 2009) (slip op.). 

Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), CLI-86-24, 24 NRC 769 

(1986), aff’d, Eddleman v. NRC, 825 F.2d 46 (4th Cir. 1987). 

Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), CLI-01-11, 53 NRC 370 

(2001), petition for review denied, Orange County v. NRC, 47 Fed. Appx. 1, 2002 WL 31098379 

(D.C. Cir. 2002). 

Citizens Association for Sound Energy v. NRC, 821 F.2d 725 (D.C. Cir. 1987). 
CASE HISTORY INDEX 

CH 2 JUNE 2011 

Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), CLI-86-7, 

23 NRC 233, aff’d, Ohio Citizens for Responsible Energy v. NRC, 803 F.2d 258 (6th Cir. 1986). 

Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), CLI-86-20, 

24 NRC 518 (1986), aff’d, Ohio v. NRC, 814 F.2d 258 (6th Cir. 1987). 

Cogema Mining, Inc. (Irigaray and Christensen Ranch Facilities), LBP-09-13, 70 NRC 168 

(2009). 

Commonwealth Edison Co. (Carroll County Site), ALAB-601, 12 NRC 18 (1980), dismissed, 

Citizens Against Nuclear Power v. NRC, No. 81-1016 (7th Cir. March 4, 1981) (unreported). 

Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 & 2), CLI-99-4, 49 NRC 185 

(1999), petition for review denied, Dienethal v. NRC, 203 F.3d 52 (D.C. Cir. 2000). 

Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-123, 6 AEC 331 (1973), rev’d, 

Aeschliman v. NRC, 547 F.2d 622 (D.C. Cir. 1976), rev’d, Vermont Yankee Power Corp. 

v. NRDC, 435 U.S. 519 (1978). 

Consumers Power Co. (Big Rock Point Nuclear Plant), ALAB-636, 13 NRC 312, appeal 

dismissed, Christa Maria v. NRC, No. 81-1920 (D.C. Cir. Oct. 27, 1981) (unreported). 

Crow Butte Resources, Inc. (North Trend Expansion Area), CLI-09-12, 69 NRC 535 (2009). 

David Geisen, CLI-09-23, 70 NRC 935 (2009). 

Dellums v. NRC, 863 F.2d 968, 971 (D.C. Cir. 1988). 

Dep’t of Transp. v. Public Citizen, 541 U.S. 752 (2004). 

Detroit Edison Power Co. v. NRC, 630 F.2d 450 (6th Cir. 1980). 

Detroit Edison Co., Fermi Power Plant (Independent Spent Fuel Storage Installation), 

LBP-09-20, 70 NRC __ (Aug. 21, 2009) (slip op.). 

Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 2), CLI-03-18, 58 NRC 433 

(2003), aff’d, Connecticut Coalition Against Millstone v. NRC, 2004 WL 2309754 (2d Cir. 

Oct. 14, 2004), amended and superseded, Nuclear Reg. Rep. P 20,644, 114 Fed. Appx. 36 

(2nd Cir. Nov 16, 2004) (again affirming the NRC). 

Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 2), CLI-05-24, 62 NRC 551 

(2005), appeal docketed sub nom. County of Suffolk v. NRC, No. 05-6684-ag (2nd Cir. 

Dec. 16, 2005), appeal later withdrawn. 
CASE HISTORY INDEX 

JUNE 2011 CH 3 

Dr. James E. Bauer (Order Prohibiting Involvement in NRC-Licensed Activities), CLI-95-3, 

41 NRC 245, appeal dismissed, Bauer v. NRC, No. 95-3310 (3rd Cir. Aug. 8, 1995) 

(unreported). 

Duke Energy Carolinas, LLC (Combined License Application for William States Lee III Nuclear 

Station, Units 1 & 2)/Tennessee Valley Authority (Bellefonte Nuclear Power Plant, Units 3 & 4), 

CLI-09-21, 70 NRC 927 (2009). 

Duke Power Co. (William B. McGuire Nuclear Station, Units 1 & 2), ALAB-128, 6 AEC 399 

(1973), aff’d, Carolina Envtl. Study Group v. United States, 510 F.2d 796 (D.C. Cir. 1975). 

Duke Power Co. v. NRC, 770 F.2d 386 (4th Cir. 1985). 

Eddleman v. NRC, 825 F.2d 46 (4th Cir.1987). 

Edlow International Company (Exports of Special Nuclear Material to India), CLI-76-6, 

3 NRC 563 (1976), appeal dismissed on grounds of mootness, Natural Resources Defense 

Council v. NRC, 580 F.2d 698 (D.C. Cir. 1978). 

Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), CLI-08-27, 

68 NRC 655 (2008), petition for review filed, Burton v. NRC, No. 09-0005 ag (2d Cir. 

Jan. 5, 2009). 

Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating, Units 2 & 3), CLI-09-6, 

69 NRC 128 (2009). 

Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power 

Station), CLI-10-11, 71 NRC __ (March 26, 2010) (slip op.). 

Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power 

Station), CLI-10-15, 71 NRC __ (June 17, 2010) (slip op.). 

Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power 

Station), CLI-10-22, 72 NRC __ (Aug. 27, 2010) (slip op.). 

Entergy Nuclear Vermont Yankee LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee 

Nuclear Power Station), CLI-07-3, 65 NRC 13, reconsid. denied, CLI-07-13, 65 NRC 211 

(2007), aff’d, Massachusetts v. United States, 522 F.3d 115 (1st Cir. 2008). 

Entergy Nuclear Vermont Yankee, LLC and Energy Nuclear Operations, Inc. (Vermont Yankee 

Nuclear Power Station), CLI-10-17, 71 NRC __ (July 8, 2010) (slip op.). 
CASE HISTORY INDEX 

CH 4 JUNE 2011 

Exelon Generation Co. (Early Site Permit for Clinton ESP), CLI-05-29, 62 NRC 801 (2005), 

aff’d, Environmental Law and Policy Ctr. v. NRC, 470 F.3d 676 (7th Cir. 2006). 

Florida Power & Light Co. (St. Lucie, Unit 2), ALAB-335, 3 NRC 830, rev’d, Hodder v. NRC 

(D.C. Cir. No. 76-1709, October 21, 1976) (unreported; unavailable on Westlaw). 

Hamlin Testing Laboratories, Inc., [no CLI number], 2 AEC 423 (1964), aff’d, Hamlin Testing 

Laboratories v. AEC, 357 F.2d 632 (6th Cir. 1966). 

Hydro Resources Inc. (P.O. Box 777, Crownpoint, New Mexico 87313), 

(1) LBP-99-30, 50 NRC 77 (1999), review denied, CLI-00-12, 52 NRC 1 (2000); 

(2) LBP-05-17, 62 NRC 77 (2005), review denied, CLI-06-1, 63 NRC 1 (2006); 

Int’l Broth. of Elec. Workers, Local 1245 v. NRC, 966 F.2d 521 (9th Cir. 1992). 

International Uranium (USA) Corp. (Receipt of Material from Tonawanda, N.Y.), CLI-98-23, 

48 NRC 259 (1998), aff’d, Envirocare of Utah v. NRC, 194 F.3d 72 (D.C. Cir. 1999). 

Kelley v. Selin, 42 F.3d 1501 (6th Cir. 1995). 

Kerr-McGee Corp. (West Chicago Rare Earths Facility), CLI-82-2, 15 NRC 232 (1982), aff’d, 

City of West Chicago v. NRC, 701 F.2d 632 (7th Cir. 1983). 

Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719 (3rd Cir. 1989). 

Louisiana Energy Serv., L.P. (National Enrichment Facility), CLI-06-15, 63 NRC 687 (2006), 

aff’d, Nuclear Info. & Res. Service v. NRC, 509 F.3d 562 (D.C. Cir. 2007). 

Louisiana Power & Light Co. (Waterford Steam Elec. Station, Unit 3), CLI-85-3, 21 NRC 471 

(1985), aff’d, Oystershell Alliance v. NRC, 800 F.2d 1201 (D.C. Cir. 1986). 

Louisiana Power & Light Co. (Waterford Steam Elec. Station, Unit 3), CLI-86-1, 23 NRC 1, aff’d, 

Oystershell Alliance v. NRC, 800 F.2d 1201 (D.C. Cir. 1986). 

Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 & 4), LBP-09-17, 

70 NRC 311 (2009). 

Luminant Generating Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 & 4), LBP-10-05, 

71 NRC __ (Mar. 11, 2010) (slip op.). 

Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power Station), ALAB-161, 

6 AEC 1003 (1973), aff’d, CLI-74-2, 7 AEC 2 (1974), aff’d, Citizens for Safe Power v. NRC, 

524 F.2d 1291 (D.C. Cir. 1975). 

Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power Station), ALAB-175, 7 AEC 62 

(1974), aff’d, Citizens for Safe Power v. NRC, 524 F.2d 1291 (D.C. Cir. 1975). 
CASE HISTORY INDEX 

JUNE 2011 CH 5 

Massachusetts v. NRC, 878 F.2d 1516 (1st Cir. 1989). 

Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-81-3, 13 NRC 291, 

dismissed, Three Mile Island Alert, Inc. v. NRC, No. 81-1557 (D.C. Cir. Aug. 19, 1981) 

(unreported). 

Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-85-2, 21 NRC 282, 

appeal dismissed, Aamodt v. NRC, No. 85-3242 (3d Cir. June 7, 1985) (unreported). 

Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-85-5, 21 NRC 566, 

aff’d, Three Mile Island Alert, Inc. v. NRC, 771 F.2d 720 (3d Cir. 1985), cert. denied, 

475 U.S. 1082 (1986). 

Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-85-9, 21 NRC 1118, 

aff’d, In re Three Mile Island Alert, Inc., 771 F.2d 720 (3d Cir. 1985), cert. denied, 475 U.S. 1082 

(1986). 

MetWest Inc. v. Sec’y of Labor, 560 F.3d 506 (D.C. Cir. 2009). 

Morris v. NRC, 598 F.3d 677 (10th Cir. 2010). 

Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007). 

Natural Resources Defense Council v. Hodel, 865 F.2d 288, 294 (D.C. Cir. 1988). 

Natural Resources Defense Council v. Morton, 458 F.2d 827 (D.C. Cir. 1972). 

New Jersey Department of Environmental Protection v. NRC, 561 F.3d 132 (3rd Cir. 2009). 

Northern Ind. Pub. Serv. Co. (Bailly Generating Station, Nuclear-1), CLI-78-7, 7 NRC 429 

(1978), aff’d, Porter County Chapter v. NRC, 606 F.2d 1363 (D.C. Cir. 1979). 

Northern Ind. Pub. Serv. Co. (Bailly Generating Station, Nuclear-1), ALAB-619, 12 NRC 558 

(1980), dismissed, City of Gary v. NRC, No. 81-1429 (D.C. Cir. Sep. 16, 1981) (unreported). 

Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), CLI-73-12, 

6 AEC 241 (1973), aff’d, BPI v. AEC, 502 F.2d 424 (D.C. Cir. 1974). 

Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-455, 

7 NRC 41 (1978), remanded, Minnesota v. NRC, 602 F.2d 412 (D.C. Cir. 1979). 
CASE HISTORY INDEX 

CH 6 JUNE 2011 

Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), CLI-10-27, 

72 NRC __ (Sep. 30, 2010) (slip op.). 

Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), 

CLI-10-14, 71 NRC __ (June 17, 2010) (slip op.). 

Ohio Edison Co. (Perry Nuclear Power Plant, Unit 1), CLI-92-11, 36 NRC 47 (1992), petition for 

review denied, City of Cleveland v. NRC, 68 F.3d 1361 (D.C. Cir. 1995). 

Pacific Gas and Elec. Co. (Stanislaus Nuclear Project, Unit 1), ALAB-550, 9 NRC 683 (1979), 

dismissed, Southern Cal. Edison v. NRC, No. 79-7529 (9th Cir. May 14, 1980) (unreported). 

Pacific Gas and Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-84-5, 

19 NRC 953, aff’d, San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287 (D.C. Cir. 1984), 

aff’d on reh’g, 789 F.2d 26 (D.C. Cir.) (en banc), cert. denied, 479 U.S. 923 (1986). 

Pacific Gas and Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-775, 

19 NRC 1361, aff’d, San Louis Obispo Mothers for Peace v. NRC, 751 F.2d 1287 (D.C. Cir. 

1984), aff’d on reh’g, 789 F.2d. 26 (D.C. Cir.) (en banc), cert. denied, 479 U.S. 923 (1986). 

Pacific Gas and Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-86-12, 

24 NRC 1, rev’d, San Luis Obispo Mothers for Peace v. NRC, 799 F.2d 1268 (9th Cir. 1986). 

Pacific Gas and Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-880, 

26 NRC 449 (1987), rev’d, Sierra Club v. NRC, 862 F.2d 222 (9th Cir. 1988). 

Pacific Gas and Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-02-16, 

55 NRC 317 (2002), petition for review dismissed, San Luis Obispo Mothers for Peace v. NRC, 

No. 02-72735 (9th Cir. May 5, 2005). 

Pacific Gas and Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-03-2, 

57 NRC 19 (2003), vacated without Commission objection on grounds of mootness, Northern 

Cal. Power Agency v. NRC, 393 F.3d 223 (D.C. Cir. 2004). 

Pa’ina Hawaii, LLC (Materials License Application), CLI-10-18, 71 NRC __ (July 8, 2010) 

(slip op.). 

Petition for Derating of Certain Boiling Water Reactors, CLI-73-18, 6 AEC 567, motion for 

summary reversal denied, Friends of the Earth v. AEC, 485 F.2d 1031 (D.C. Cir. 1973). 

Philadelphia Elec. Co. (Peach Bottom Atomic Power Station, Units 2 & 3), ALAB-216, 8 AEC 13, 

rev’d in part, CLI-74-32, 8 AEC 217 (1974), rev’d in part, York Comm. for a Safe Env’t v. NRC, 

527 F.2d 812 (D.C. Cir. 1975). 
CASE HISTORY INDEX 

JUNE 2011 CH 7 

Philadelphia Elec. Co. (Limerick Generating Station, Units 1 & 2), ALAB-262, 1 NRC 163, 

petition for review denied, Environmental Coalition on Nuclear Power v. NRC, 524 F.2d 1403 

(3rd Cir. 1975). 

Philadelphia Elec. Co. (Limerick Generating Station, Units 1 & 2), ALAB-765, 19 NRC 645 & 

ALAB-778, 20 NRC 42 (1984), petition for review denied, Anthony v. NRC, 770 F.2d 1066 

(3d Cir. 1985). 

Philadelphia Elec. Co. (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681 

(1985), aff’d in part, CLI-86-5, 23 NRC 125 (1986), aff’d in part and rev’d in part, Limerick 

Ecology Action, Inc. v. NRC, 869 F.2d 719 (3d Cir. 1989). 

Portland Gen. Elec. Co. (Trojan Nuclear Power Station), CLI-95-13, 42 NRC 125, dismissed, 

Don’t Waste Oregon Council v. NRC, No. 95-70776 (9th Cir. Oct. 26, 1995) (unreported). 

PPL Bell Bend, LLC (Bell Bend Nuclear Power Plant), LBP-09-18, 70 NRC 385, 397-398 (2009), 

aff’d by CLI-10-07, 71 NRC __ (Jan. 7, 2010) (slip op.). 

Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-02-20, 

56 NRC 147 (2002), appeal dismissed, Ohngo Gaudadeh Devia v. NRC, No. 02-9583 (10th Cir. 

June 2, 2003) (unreported), subsequent petition for review filed sub nom. Ohngo Gaudadeh 

Devia v. NRC, No. 05-1419 (D.C. Cir. Nov. 7, 2005), petition for review held in abeyance, 

Ohngo Gaudadeh Devia v. NRC, 492 F.3d 421 (D.C. Cir. 2007). 

Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), 

(1) CLI-05-19, 62 NRC 403 (2005); 

(2) CLI-05-12, 61 NRC 345 (2005); 

(3) CLI-04-4, 59 NRC 31 (2004); 

(4) CLI-02-25, 56 NRC 340 (2002); 

(5) CLI-02-8, 55 NRC 222 (2002); 

(6) CLI-01-22, 54 NRC 255 (2001); 

(7) LBP-03-4, 57 NRC 69, reconsid. granted, 2003 WL 1831114 (NRC) (Apr. 04, 2003); 

(8) LBP-02-8, 55 NRC 171, rev’d, CLI-02-20, 56 NRC 147 (2002), reconsid. denied, 

CLI-04-9, 59 NRC 120 (2004); 

(9) LBP-01-23, 54 NRC 163 (2001); 

(10) LBP-00-27, 52 NRC 216 (2000); 

(11) LBP-98-29, 48 NRC 286 (1998); and 

(12) LBP-98-7, 47 NRC 142, reconsid. granted in part, LBP-98-10, 47 NRC 288, aff’d, 

CLI 98 13, 48 NRC 26 (1998). 

Public Citizen v. NRC, 573 F.3d 916 (9th Cir. 2009). 
CASE HISTORY INDEX 

CH 8 JUNE 2011 

Public Serv. Co. of Ind. (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-459, 7 NRC 

179 (1978), aff’d, Kentucky v. NRC, 626 F.2d 995 (D.C. Cir 1980). 

Public Serv. Co. of Ind. (Marble Hill Nuclear Generating Station, Units 1 & 2), CLI-80-10, 

11 NRC 438 (1980), aff’d, Save the Valley v. NRC, 714 F.2d 142 (6th Cir. 1983) (Table). 

Public Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), ALAB-422, 6 NRC 33 (1977), aff’d, 

CLI-78-1, 7 NRC 1, aff’d, New England Coalition on Nuclear Pollution v. NRC, 582 F.2d 87 

(1st Cir. 1978). 

Public Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), ALAB-899, 28 NRC 93 (1988), aff’d, 

Massachusetts v. NRC, 924 F.2d 311 (D.C. Cir.), cert. denied, 502 U.S. 899 (1991). 

Public Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), CLI-90-3, 31 NRC 219 (1990), aff’d, 

Massachusetts v. NRC, 924 F.2d 311 (D.C. Cir.), cert. denied, 502 U.S. 899 (1991). 

Public Service Company of New Hampshire v. NRC, 582 F.2d 77 (1st Cir. 1978). 

Public Serv. Elec. and Gas Co. (Salem Nuclear Generating Station, Unit 1), ALAB-650, 

14 NRC 43 (1981), aff’d, Township of Lower Alloways Creek v. Public Serv. Elec. & Gas Co., 

687 F.2d 732 (3d Cir. 1982). 

Puget Sound Power and Light Co. (Skagit Nuclear Power Project, Units 1 & 2), CLI-80-34, 

12 NRC 407 (1980), dismissed, Upper Skagit Indian Tribe v. NRC, No. 79-2277 (D.C. Cir. 

Jan. 19, 1981) (unreported). 

Quivira Mining Co. (Ambrosia Lake Facility, Grants, N.M.), CLI-98-11, 48 NRC 1 (1998), petition 

for review denied, Envirocare of Utah, Inc. v. NRC, 194 F.3d 72 (D.C. Cir. 1999). 

Radiation Technology, Inc., ALAB-567, 10 NRC 533 (1979), final administrative decision led to 

collection action in U.S. Nuclear Regulatory Commission v. Radiation Technology, Inc. 

519 F.Supp. 1266 (D.N.J. 1981). 

Rochester Gas and Elec. Corp. (Sterling Power Project, Unit 1), ALAB-507, 8 NRC 551 (1978), 

aff’d, Ecology Action of Oswego v. NRC, No. 78-1885, 10 ELR 20,293 (D.C. Cir. Mar. 12, 1980) 

(unreported in F.2d; unavailable on Westlaw). 

Sacramento Mun. Util. Dist. (Rancho Seco Nuclear Generating Station), CLI-92-2, 35 NRC 47 

(1992), petition for review denied, Environmental & Res. Conservation Org. v. NRC, 

996 F.2d 1224 (9th Cir. 1993). 

Safety Light Corp. (Bloomsbury Site Decontamination), ALAB-931, 31 NRC 350 (1990), 

dismissed (subject to reinstatement), USR Industries v. United States, Nos. 89-1863 and 

90-1407 (D.C. Cir. Nov. 30, 1994) (unreported). 

Shieldalloy Metallurgical Corp. v. NRC, 624 F.3d 489 (D.C. Cir. 2010). 
CASE HISTORY INDEX 

JUNE 2011 CH 9 

Shieldalloy Metallurgical Corp. (License Amendment Request for Decommissioning of the 

Newfield, New Jersey Site), CLI-10-08, 71 NRC __ (Jan. 7, 2010) (slip op.). 

Shoreham-Wading River Cent. School Dist. v. NRC, 931 F.2d 102 (D.C. Cir. 1991). 

South Carolina Elec. and Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-642, 

13 NRC 881 (1981), aff’d, Fairfield United Action v. NRC, 679 F.2d 261 (D.C. Cir. 1982). 

South Texas Project Nuclear Operating Co. (South Texas Project Units 3 & 4), CLI-09-18, 

70 NRC 859 (2009). 

South Texas Project Nuclear Operating Company (South Texas Project, Units 3 & 4), 

CLI-10-24, 72 NRC __ (Sep. 29, 2010) (slip op.). 

South Texas Project Nuclear Operating Co. (South Texas Project, Units 3 & 4), LBP-09-21, 

70 NRC 581 (2009). 

South Texas Project Nuclear Operating Co. (South Texas Project, Units 3 & 4), LBP-10-14, 

72 NRC __ (July 2, 2010) (slip op.). 

Southern Cal. Edison Co. (San Onofre Nuclear Generating Station, Units 2 & 3), ALAB-717, 

17 NRC 346 (1983), aff’d, Carstens v. NRC, 742 F.2d 1546 (D.C. Cir. 1984), cert. denied, 

471 U.S. 1136 (1985). 

Southern Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), CLI-10-5, 70 NRC __ 

(Jan. 7, 2010) (slip op.). 

Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 & 4), LBP-10-8, 

71 NRC __ (May 19, 2010) (slip op.). 

State of Alaska Dep’t of Tptn. and Pub. Facilities, CLI-04-26, 60 NRC 399, reconsid. denied, 

CLI-04-38, 60 NRC 652 (2004), petition for review dismissed without opinion for lack of 

prosecution, Farmer v. NRC, No. 05-70718 (9th Cir. June 22, 2006) (unpublished, no further 

citation available). 

Tennessee Valley Authority (Bellefonte Nuclear Plants Units 1 & 2), LBP-10-07, 71 NRC __ 

(Apr. 2, 2010) (slip op.). 

Texas Util. Elec. Co. (Comanche Peak Steam Electric Station, Units 1 & 2), CLI-88-12, 

28 NRC 605 (1988), reconsid. denied, CLI-89-6, 29 NRC 348 (1989), aff’d, Citizens for Fair Util. 

Regulation v. NRC, 898 F.2d 51 (5th Cir. 1990). 
CASE HISTORY INDEX 

CH 10 JUNE 2011 

Texas Util. Elec. Co. (Comanche Peak Steam Electric Station, Unit 1), CLI-86-4, 23 NRC 113 

(1986), aff’d, Citizens Ass’n for Sound Energy v. NRC, 821 F.2d 725 (D.C. Cir. 1987). 

Texas Util. Elec. Co. (Comanche Peak Steam Electric Station, Units 1 & 2), CLI-92-1, 

35 NRC 1, aff’d, Dow v. NRC, 976 F.2d 46 (D.C. Cir. 1992) (Table). 

Toledo Edison Co. (Davis-Besse Nuclear Power Station, Units 1, 2, & 3), ALAB-560, 

10 NRC 265 (1979), aff’d, City of Cleveland v. NRC, 68 F.3d 1361 (D.C. Cir. 1995). 

Town of Winthrop v. FAA, 535 F.3d 1 (1st Cir. 2008). 

United States v. Navajo Nation, 537 U.S. 488 (2003). 

U.S. Army Installation Command (Schofield Barracks, Oahu, Hawaii, and Pohakuloa Training 

Area, Island of Hawaii, Hawaii), CLI-10-20, 71 NRC __ (Aug. 12, 2010) (slip op.). 

United States Dep’t of Energy (Clinch River Breeder Reactor Plant), CLI-82-23, 16 NRC 412, 

rev’d and remanded, Natural Res. Defense Council v. NRC, 695 F.2d 623 (D.C. Cir. 1982) 

(per curiam). 

U.S. Dep’t of Energy (High-Level Waste Repository), LBP-09-06, 69 NRC 367 (2009), rev’d in 

part on other grounds, CLI-09-14, 69 NRC 580 (2009). 

U.S. Dep’t of Energy (High-Level Waste), CLI-10-10, 71 NRC __ (Mar. 11, 2010) (slip op.). 

United States Energy Research and Dev. Admin. (Clinch River Breeder Reactor Plant), 

CLI-76-13, 4 NRC 67 (1976), dismissed, Natural Res. Def. Council, Inc. v. NRC, No. 76-1966 

(D.C. Cir. Jan. 31, 1977) (unreported). 

US Ecology, Inc. (Sheffield, Illinois Low-Level Radioactive Waste Disposal Site), ALAB-866, 

25 NRC 897, dismissed, U.S. Ecology v. NRC, No. 87-1325 (D.C. Cir. June 6, 1988) 

(unreported). 

Virginia Elec. and Power Co. (North Anna, Units 1 & 2), ALAB-256, 1 NRC 10 (1975), aff’d, 

North Anna Envtl. Coalition v. NRC, 533 F.2d 655 (D.C. Cir. 1976). 

Virginia Elec. and Power Co. (North Anna Power Station, Units 1 & 2), CLI-76-22, 4 NRC 480 

(1976), aff’d, Virginia Elec. and Power Co. v. NRC, 571 F.2d 1289 (4th Cir. 1978). 

Virginia Electric and Power Co. (North Anna Station, Units 1 & 2), ALAB-584, 11 NRC 451 

(1980), remanded, Potomac Alliance v. Nuclear Regulatory Commission, 682 F.2d 1036 

(D.C. Cir. 1982). 

Virginia Electric and Power Co., d/b/a Dominion Virginia Power and Old Dominion Electrical 

Coop. (Combined License Application for North Anna Unit 3), LBP-10-17, 72 NRC __ 

(Sep. 2, 2010) (slip op.). 
CASE HISTORY INDEX 

JUNE 2011 CH 11 

Westinghouse Electric Corporation (Exports to the Philippines), CLI-80-14, 11 NRC 631 (1980) 

and CLI-80-15, 11 NRC 672 (1980), aff’d, Natural Resources Defense Council, Inc. v. NRC, 

647 F.2d 1345 (D.C. Cir. 1981). 

Westinghouse Electric Co., LLC (Hematite Decommissioning Project License Amendment 

Request), LBP-09-28, 70 NRC __ (Dec. 3, 2009) (slip op.). 
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 CFR Index 

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CFR INDEX 

JUNE 2011 CFR 1 

10 CFR 2, Subpart B 3.1.2.4 

 6.1.4.4 

 6.10.2.1 

 6.25.2 

 

10 CFR 2, Subpart C 3.1.2.7 

 3.4 

 6.30.3 

 6.30.8 

10 CFR 2, Subpart G 3.3.6 

 6.6 

 6.14.1 

 6.31.1 

 

10 CFR 2, Subpart H 6.21.4 

10 CFR 2, Subpart J 2.12.7.2 

 6.30.3 

10 CFR 2, Subpart K 3.8 

 6.16.1.1 

 6.16.9 

 6.30.8 

 6.36 

10 CFR 2, Subpart L 2.12.2.4.3 

 3.1.2.12.1 

 3.3.6 

 3.5.7 

 5.12.2 

 6.5.5.1 

 6.14.1 

 6.14.2 

 

10 CFR 2, Subpart M 6.31 

 6.31.1 

 6.31.4 

10 CFR 2.4 1.2 

10 CFR 2.101 1.3 

 1.5.1 

 1.7 
CFR INDEX 

CFR 2 JUNE 2011 

10 CFR 2.101(a)(1) 6.5.4.1 

 6.7 

10 CFR 2.101(a)(2) 1.5.1 

10 CFR 2.101(a)(3) 1.7 

 

10 CFR 2.101(a-1) 1.3 

 6.7 

10 CFR 2.102 1.9 

10 CFR 2.102(a) 6.5.4.1 

10 CFR 2.102(d)(3) 2.10.3.3.1 

 3.1.2.1 

10 CFR 2.103(a) 6.16.1.1 

10 CFR 2.103(b) 6.17.1 

10 CFR 2.104 3.1.2.1 

 6.16.1 

10 CFR 2.104(a) 1.8.1 

 2.5.3 

 3.1.2.2 

 3.3.1 

 3.3.1.1 

 3.4 

10 CFR 2.104(b)(1) 3.20 

10 CFR 2.104(b)(2) 3.1.2.2.A 

 3.20 

10 CFR 2.104(b)(3) 3.1.2.2.A 

10 CFR 2.104(c) 3.1.2.2.B 

10 CFR 2.105 2.5.1 

 3.1.2.1 

10 CFR 2.105(a) 2.5 

10 CFR 2.105(a)(3) 6.1.4 
CFR INDEX 

JUNE 2011 CFR 3 

10 CFR 2.105(a)(6) 6.1.4 

10 CFR 2.105(a)(7) 6.1.4 

10 CFR 2.105(e)(2) 3.19.1 

10 CFR 2.107 1.10 

 3.1.2.1 

10 CFR 2.107(a) 1.10 

 1.10.2 

 3.1.2.2.A 

 3.19.1 

 3.19.2 

10 CFR 2.109 1.2 

10 CFR 2.109(a) 1.2 

10 CFR 2.202 2.10.3.3.1 

 3.1.2.1 

 3.1.2.5 

 6.1.4 

 6.25.2 

 6.25.3 

 6.25.4 

 6.25.6 

10 CFR 2.202(a) 6.25.2 

 

10 CFR 2.202(a)(1) 6.25.5.1 

10 CFR 2.202(a)(3) 2.10.3.3.2 

10 CFR 2.202(a)(5) 6.25.5 

 6.25.5.1 

10 CFR 2.202(b) 6.25.5.1 

10 CFR 2.202(c)(1) 6.25.9 

10 CFR 2.202(c)(2)(i) 3.8 

 6.25.5.1 

10 CFR 2.202(c)(2)(ii) 6.25.5.1 

 6.25.9 
CFR INDEX 

CFR 4 JUNE 2011 

10 CFR 2.203 3.19.1 

 4.1 

 5.6 

 6.25.11 

10 CFR 2.204(a) 6.25.2 

10 CFR 2.204(b) 6.25.2 

10 CFR 2.205 6.25.10 

10 CFR 2.205(a) 3.1.2.8 

10 CFR 2.205(e) 3.1.2.1 

10 CFR 2.205(f) 3.1.2.8 

10 CFR 2.206 2.10.3.3.1 

 2.10.3.3.3.E 

 2.10.4.1.1.2 

 2.10.5.5.5 

 2.12.2.4.6 

 3.1.1 

 3.1.2.1 

 3.1.2.2 

 3.1.2.5 

 3.4.5.2 

 4.4 

 5.7.1.2 

 6.1.6 

 6.5.2 

 6.14.3 

 6.25.2.2 

 6.25.3 

 6.25.3.1 

 6.25.6 

 6.31.3 

 6.37 

10 CFR 2.206(c) 6.5.2 

 6.25.3.1 

10 CFR 2.206(c)(1) 6.25.3 

 6.25.3.1 
CFR INDEX 

JUNE 2011 CFR 5 

10 CFR 2.206(c)(2) 6.25.3.1 

10 CFR 2.301 6.30.1 

10 CFR 2.302(b) 2.9.1.1 

 3.1.4.1 

 6.5.4.2 

10 CFR 2.302(c) 2.10.3.3.1 

 

10 CFR 2.306 2.10.10 

 5.10.2 

10 CFR 2.307 1.8.4 

 2.12.1 

 3.1.2.9 

 6.14.2 

10 CFR 2.307(a) 3.1.2.9 

10 CFR 2.309 2.10.3 

 2.10.3.1 

 2.10.3.2 

 2.10.3.3.3 

 2.10.3.3.4 

 2.10.3.6 

 2.10.4.1.1.1.E 

 2.10.4.1.2 

 2.10.5.2.1 

 2.10.5.2.2 

 2.10.5.5 

 2.10.5.8 

 2.10.5.10 

 2.10.8.1 

 2.11.2 

 3.1.2.7 

 4.4.1 

 5.12.2.2 

 6.3.2
CFR INDEX 

CFR 6 JUNE 2011 

10 CFR 2.309(a) 2.10.3.1 

 2.10.8 

 3.1.2.5 

 3.1.2.7 

10 CFR 2.309(a)(1) 2.10.5.10 

10 CFR 2.309(b) 3.1.2.7 

10 CFR 2.309(c) 2.10.3.3 

 2.10.3.3.3 

 2.10.3.3.3.A 

 2.10.3.3.3.E 

 2.10.3.3.3.F 

 2.10.3.3.3.G 

 2.10.3.3.4 

 2.10.3.5 

 2.10.3.6 

 2.10.4.1.1.1.A 

 2.10.5.2 

 2.10.5.5 

 2.10.5.5.1 

 2.10.5.5.5 

 2.10.7 

 2.10.8 

 3.1.2.7 

 3.4.1 

 5.6.1 

 6.3.2 

 6.25.2 

10 CFR 2.309(c)(1) 2.10.3.3 

 2.10.3.3.3 

 2.10.3.3.3.A 

 2.10.3.3.3.E 

 2.10.3.3.3.G 

 2.10.3.3.3.H 

 2.10.3.5 

 2.10.3.6 

 2.10.5.1 

 2.10.5.5 

 2.10.5.5.1 

 2.10.5.5.5 

 5.7.1.2 
CFR INDEX 

JUNE 2011 CFR 7 

10 CFR 2.309(d) 2.10.1 

 2.10.3.1 

 2.10.5 

 3.1.2.7 

10 CFR 2.309(d)(1) 2.10.3 

 2.10.3.3.3 

 2.11.2 

10 CFR 2.309(d)(2) 2.11.2 

10 CFR 2.309(e) 3.1.2.7 

10 CFR 2.309(e)(1) 2.10.4.2 

10 CFR 2.309(e)(2) 2.10.4.2 

10 CFR 2.309(f) 2.10.3.1 

 2.10.5 

 2.10.5.2 

 2.10.5.5 

 2.10.5.10 

 3.1.2.7 

 4.4.1 

 5.12.2.2 

10 CFR 2.309(f)(1) 2.10.3 

 2.10.5 

 2.10.5.2 

 2.10.5.2.1 

 2.10.5.2.2 

 2.10.5.4 

 2.10.5.5 

 2.10.5.8 

 2.10.5.10 

 5.6.1
CFR INDEX 

CFR 8 JUNE 2011 

10 CFR 2.309(f)(2) 2.10.3.3.1.A 

 2.10.5.2 

 2.10.5.4 

 2.10.5.5 

 2.10.5.5.1 

 2.10.5.8 

10 CFR 2.311 1.8.4 

 2.6.2.3 

 2.10.3 

 2.10.3.3.4 

 2.10.10 

 5.0 

 5.1 

 5.1.4 

 5.3 

 5.4 

 5.5.3 

 5.8.4 

 5.10.1 

 5.10.2.2 

 5.12.1 

10 CFR 2.311(a) 5.1.4 

 5.10.2 

10 CFR 2.311(b) 5.1.4 

10 CFR 2.311(c) 5.1.4 

 5.12.2 

10 CFR 2.313 3.1.4.1 

10 CFR 2.313(b) 2.9.1 

10 CFR 2.313(b)(2) 3.1.4.1 

10 CFR 2.313(c) 3.1.5 

10 CFR 2.314 6.4.1 

 6.4.2 

 6.18.1
CFR INDEX 

JUNE 2011 CFR 9 

10 CFR 2.314(a) 6.4.1 

 6.18.1 

 2.10.2 

10 CFR 2.314(b) 2.10.2 

10 CFR 2.314(c) 6.4.2 

10 CFR 2.315 2.11.1.1 

 5.1.4 

 5.2.1 

10 CFR 2.315(a) 2.11.1.2 

10 CFR 2.315(c) 2.10.3.3.3 

 2.10.3.3.3.A 

 2.10.4.1.2.3 

 2.10.5 

 2.10.8.2.1 

 2.11.2 

 5.2 

10 CFR 2.315(d) 5.2.1 

 5.11.3 

10 CFR 2.316 2.10.6 

 2.10.8.2.2 

 3.3.6 

 3.14.1 

10 CFR 2.317 3.3.6 

10 CFR 2.318(a) 3.1.2.6 

 3.19.1 

 5.1.3 

10 CFR 2.318(b) 3.1.2.5 

10 CFR 2.319 2.10.6 

 2.10.8.5 

 3.1.2.8 

 3.1.2.10 

 3.1.2.12 

 3.1.2.12.1 

 3.3.4 
CFR INDEX 

CFR 10 JUNE 2011 

10 CFR 2.319 (Cont.) 3.3.6 

 3.4.4 

 3.12 

 3.12.1.1 

 3.13.4 

 3.14.1 

 6.14.3 

 6.18.1 

 6.20.2 

 6.24 

10 CFR 2.319(b) 3.1.2.12.1 

10 CFR 2.319(d) 3.14.1 

10 CFR 2.319(g) 2.10.5.5 

 2.12.2.2 

 3.1.2.12 

 3.5.6 

 3.14 

 6.4.1 

10 CFR 2.319(l) 3.1.1 

 5.12.4 

10 CFR 2.319(m) 3.1.2.6 

10 CFR 2.320 2.10.8.5 

 2.12.5.2 

 3.1.2.12 

 6.18.1 

10 CFR 2.320(b) 3.7 

10 CFR 2.321 1.10.2 

10 CFR 2.321(c) 3.1.3 

10 CFR 2.322 3.1.1 

 6.12 

10 CFR 2.322(a)(3) 6.12 

10 CFR 2.323 5.7 

 6.15 

 6.15.2.1
CFR INDEX 

JUNE 2011 CFR 11 

10 CFR 2.323(a) 2.9.1.1 

 2.9.2 

 2.12.1 

 3.1.4.1 

 6.15 

10 CFR 2.323(b) 2.9.2 

 6.15.1 

 6.15.1.1 

10 CFR 2.323(c) 3.5.6 

10 CFR 2.323(f) 3.1.1 

 5.12.1 

 5.12.4 

10 CFR 2.323(g) 5.7.1.2 

10 CFR 2.324 2.12.5.2 

 3.1.2.12 

10 CFR 2.325 2.10.3 

 2.10.8.1 

 3.8 

10 CFR 2.326 4.4 

 4.5 

 6.16.1.1 

10 CFR 2.326(a) 2.2.2 

 4.4.1 

10 CFR 2.326(a)(1) 4.4.1.1 

10 CFR 2.326(a)(3) 4.4.2 

10 CFR 2.329 2.6 

 2.12.1 

 

10 CFR 2.329(d) 2.6.1 

 6.5.3
CFR INDEX 

CFR 12 JUNE 2011 

10 CFR 2.329(e) 2.6.2.1 

 2.6.2.2 

10 CFR 2.330 3.10 

10 CFR 2.333 3.14.1 

10 CFR 2.333(c) 3.14 

10 CFR 2.333(f) 3.14.1 

10 CFR 2.335 2.10.5.2.1 

 2.10.5.6 

 3.1.2.1 

 3.8.3.2 

 5.4 

 5.12.1 

 6.9 

 6.11 

 6.21.4 

 6.31.1 

10 CFR 2.335(b) 6.9 

 6.11 

10 CFR 2.335(d) 6.21.4 

10 CFR 2.337 3.12 

10 CFR 2.337(a) 3.11 

 3.12.1.1 

 3.12.1.1.1 

 4.4.1 

10 CFR 2.337(f) 3.11 

10 CFR 2.337(g) 3.12.2 

10 CFR 2.338 2.12.2 

 4.1 

10 CFR 2.338(g) 4.1 

10 CFR 2.338(i) 4.1 
CFR INDEX 

JUNE 2011 CFR 13 

10 CFR 2.340 3.1.2.2.B 

 3.5.7.1 

 4.3 

 5.7.5 

 6.10.1 

10 CFR 2.340(a) 3.1.2.8 

 3.4.2 

 4.1 

10 CFR 2.340(f) 4.3 

10 CFR 2.340(f)(2) 5.7.5 

10 CFR 2.341 3.1.2.6 

 4.3 

 5.1 

 5.1.1 

 5.7.5 

 5.8.3 

 5.9.1 

 5.10.1 

 5.10.2 

 5.12.1 

 6.30.8 

10 CFR 2.341(a) 5.0 

10 CFR 2.341(b) 5.0 

 5.1 

 5.1.1 

 5.2.1 

 5.3 

 5.9.1 

10 CFR 2.341(b)(1) 5.4 

10 CFR 2.341(b)(2) 5.3
CFR INDEX 

CFR 14 JUNE 2011 

10 CFR 2.341(b)(4) 5.1.3 

 5.3 

 5.5 

 5.6 

 5.12.2 

 6.36 

10 CFR 2.341(c) 5.0 

 5.2 

 5.10.1 

 5.10.2 

10 CFR 2.341(d) 5.0 

 5.14 

10 CFR 2.341(e) 5.0 

10 CFR 2.341(f) 5.0 

 5.8.2.1 

 5.12.1 

 5.12.2 

 5.12.4 

10 CFR 2.341(f)(1) 5.12.2 

10 CFR 2.341(f)(2) 5.12.1 

 5.12.2.1 

 5.12.2.2 

10 CFR 2.342 4.3 

 4.6.3 

 5.7 

 5.7.1.2 

 5.7.1.3 

 5.7.2 

 6.14.2 

 6.26 

10 CFR 2.342(a)(3) 6.26 

10 CFR 2.342(b)(2) 5.7.1.3
CFR INDEX 

JUNE 2011 CFR 15 

10 CFR 2.342(e) 5.7 

 5.7.1.2 

 5.7.1.3 

 5.7.1.3.3 

 6.14.2 

10 CFR 2.342(f) 5.7 

10 CFR 2.343 5.11 

10 CFR 2.345 5.14 

10 CFR 2.390 2.12.2.4 

 2.12.2.4.3 

 2.12.2.4.5 

 2.12.3 

 3.1.2.8 

 6.24 

 6.24.1 

 6.24.3 

 6.24.3.1 

 6.24.3.2 

10 CFR 2.390(a) 2.12.3 

 6.24.3 

 

10 CFR 2.390(a)(4) 2.12.2.4 

10 CFR 2.390(a)(7) 2.12.2.4.2 

 6.24.3.1 

10 CFR 2.390(b) 6.24.3 

10 CFR 2.390(b)(1) 6.24 

 6.24.3 

 6.24.3.2 

10 CFR 2.390(b)(4) 6.24.3 

 6.24.3.1 

10 CFR 2.390(b)(6) 2.12.2.4 

 6.24.3.1
CFR INDEX 

CFR 16 JUNE 2011 

10 CFR 2.390(d) 2.12.2.4.2 

 6.24.3 

 6.24.3.2 

10 CFR 2.600-2.606 1.3 

 6.7 

10 CFR 2.633(a) 3.14.2 

10 CFR 2.700a 6.30.1 

10 CFR 2.701(b) 2.9.1.1 

 3.1.4.1 

 6.5.4.2 

10 CFR 2.701(c) 2.10.3.3.1 

10 CFR 2.704 2.9.1 

 3.1.4.1 

10 CFR 2.704(c) 3.1.4.1 

10 CFR 2.704(d) 3.1.5 

10 CFR 2.707 2.10.8.5 

 2.12.2 

 2.12.2.2 

 2.12.5.2 

 3.1.2.9 

 3.1.2.12 

 6.18.1 

10 CFR 2.707(b) 3.7 

10 CFR 2.707(d) 2.12.4 

10 CFR 2.708 2.12.3 

10 CFR 2.708(d) 2.10.9.1
CFR INDEX 

JUNE 2011 CFR 17 

10 CFR 2.710 2.2 

 2.10.10 

 3.5.1 

 3.5.2 

 3.5.7 

 5.8.4 

 5.10.2 

10 CFR 2.710(a) 3.5.3 

 3.5.4 

 3.5.5 

 3.5.6 

10 CFR 2.710(a) (Cont.) 3.5.7.1 

10 CFR 2.710(b) 3.5.3 

 3.5.4 

10 CFR 2.710(c) 3.5.3 

10 CFR 2.710(d) 3.5.7.2 

 6.1.4.3 

10 CFR 2.710(d)(1) 3.5.5 

10 CFR 2.710(d)(2) 3.5.2 

10 CFR 2.711 2.12.1 

 3.1.2.9 

 3.12 

 3.14 

 

10 CFR 2.711(a) 3.1.2.9 

 3.14 

10 CFR 2.711(b) 3.14 

10 CFR 2.711(c) 3.14 

10 CFR 2.711(d) 3.12 

 3.14 

10 CFR 2.711(e) 3.12.1.1 
CFR INDEX 

CFR 18 JUNE 2011 

10 CFR 2.712 4.2 

 4.2.2 

 6.15.2.1 

10 CFR 2.712(a) 3.1.2.12 

10 CFR 2.712(c) 4.2 

 4.2.1 

10 CFR 2.712(e)(3) 4.4.1.1 

10 CFR 2.712(f) 2.10.9.1 

10 CFR 2.713 4.3 

 6.4.1 

 6.4.2 

10 CFR 2.713(a) 2.10.2 

 3.1.2.6 

 6.4.1 

 6.18.1 

10 CFR 2.713(b) 2.10.2 

10 CFR 2.713(c) 6.4.2 

10 CFR 2.714 2.10.3 

 2.10.3.1 

 2.10.4.1.2 

 2.10.5.2 

 2.10.5.2.2 

 2.10.5.10 

 2.10.8.1 

 2.11.2 

 3.1.2.7 

 5.12.2.2 

 6.3.2 

 

10 CFR 2.714(a) 2.10.3.3.3 

 2.10.3.3.3.A 

 2.10.3.3.3.E 

 2.10.3.3.3.F 

 2.10.3.3.4 

 2.10.5 

 2.10.5.1 

 2.10.5.5 

 2.10.5.5.1 

 2.10.7 
CFR INDEX 

JUNE 2011 CFR 19 

10 CFR 2.714(a) (Cont.) 3.1.2.5 

 3.1.2.7 

 3.4.1 

 4.4.1 

10 CFR 2.714(a)(1) 2.10.3.3 

 2.10.3.3.3 

 2.10.3.3.3.A 

 2.10.3.3.3.E 

 2.10.3.5 

 2.10.5.5 

 2.10.5.5.1 

 3.1.2.7 

 5.6.1 

 5.7.1.2 

 6.3.2 

 6.25.2 

10 CFR 2.714(a)(2) 2.10.3 

10 CFR 2.714(a)(3) 2.10.3.3.3.H 

10 CFR 2.714(b) 2.10.3.1 

 2.10.3.5 

 2.10.5 

 2.10.5.4 

 2.10.8 

 4.4.1 

 5.1.4 

 5.12.2.2 

10 CFR 2.714(b)(2) 2.10.5.2 

 2.10.5.2.1 

 2.10.5.2.2 

 2.10.5.4 

 2.10.5.5.1 

 2.10.5.8 

 2.10.5.10 

10 CFR 2.714(c) 5.1.4 

 

10 CFR 2.714(d) 2.10.3 

10 CFR 2.714(d)(1) 2.10.3.3.3 

 

10 CFR 2.714(f) 2.10.6 

 2.10.8.2.2 
CFR INDEX 

CFR 20 JUNE 2011 

 

10 CFR 2.714a 2.6.2.3 

 2.10.3 

 2.10.3.3.4 

 2.10.10 

 5.0 

 5.1 

 5.1.4 

 5.3 

 5.4 

 5.5.3 

 5.8.4 

 5.10.1 

 5.10.2.2 

 5.12.1 

10 CFR 2.714a(a) 5.10.2 

10 CFR 2.714a(b) 5.1.4 

 5.4 

10 CFR 2.714a(c) 5.1.4 

10 CFR 2.715 2.11.1.1 

 5.2.1 

10 CFR 2.715(a) 2.11.1.2 

 

10 CFR 2.715(c) 2.10.3.3.3 

 2.10.3.3.3.A 

 2.10.4.1.2.3 

 2.10.5 

 2.10.8.2.1 

 2.11.2 

 5.1.4 

 5.2 

 5.2.1 

10 CFR 2.715(d) 5.2.1 

 5.11.3 

10 CFR 2.715a 2.10.6 

 2.10.8.2.2 

 3.3.6 

 3.14.1 

10 CFR 2.716 3.3.6 
CFR INDEX 

JUNE 2011 CFR 21 

10 CFR 2.717(a) 3.1.2.6 

 3.19.1 

 5.1.3 

10 CFR 2.717(b) 3.1.2.5 

 

10 CFR 2.718 2.10.8.5 

 3.1.2.8 

 3.1.2.10 

 3.1.2.12 

 3.1.2.12.1 

 3.3.4 

 3.4.4 

 3.12.1.1 

 3.13.4 

 3.14.1 

 6.18.1 

 6.20.2 

 6.24 

10 CFR 2.718(c) 3.14.1 

10 CFR 2.718(e) 2.10.5.5 

 2.12.2.2 

 3.1.2.12 

 3.5.6 

 3.14 

 6.4.1 

10 CFR 2.718(i) 3.1.1 

 5.12.4 

 

10 CFR 2.718(j) 3.1.2.6 

10 CFR 2.718(l) 5.12.4 

10 CFR 2.720 2.12.2 

 2.12.3 

 2.12.5 

 2.12.5.1 

 3.13.1
CFR INDEX 

CFR 22 JUNE 2011 

 

10 CFR 2.720(a) 2.12.5 

 3.13.1 

10 CFR 2.720(a)-(g) 3.13.1.1 

10 CFR 2.720(d) 2.12.2.2 

 3.13.4.1 

10 CFR 2.720(f) 2.12.5 

 3.13.4.1 

10 CFR 2.720(h) 3.13.1.1 

 

10 CFR 2.720(h)(2) 2.12.3 

 3.13.1.1 

 6.17.1.2 

10 CFR 2.721(d) 1.10.2 

 3.1.3 

10 CFR 2.722 3.1.1 

 6.12 

10 CFR 2.729(c) 3.5.3 

10 CFR 2.730 5.7 

 6.15 

 6.15.2.1 

10 CFR 2.730(a) 2.9.1.1 

 2.12.1 

 3.1.4.1 

10 CFR 2.730(b) 6.15.1 

10 CFR 2.730(c) 6.15 

10 CFR 2.730(f) 3.1.1 

 5.8.2.1 

 5.8.3 

 5.12.1 

 5.12.4 

 

10 CFR 2.730(g) 5.7.1.2 
CFR INDEX 

JUNE 2011 CFR 23 

10 CFR 2.731 2.12.5.2 

 3.1.2.12 

10 CFR 2.732 2.10.3 

 2.10.8.1 

 3.8 

10 CFR 2.733(a) 3.14.2 

10 CFR 2.734 4.4 

 4.4.1 

 4.5 

 

10 CFR 2.734(a) 2.2.2 

10 CFR 2.734(a)(1) 4.4.1.1 

10 CFR 2.734(a)(3) 4.4.2 

10 CFR 2.734(b) 4.4.1 

10 CFR 2.734(c) 3.11 

 4.4.1 

10 CFR 2.740 2.12.5 

 3.1.2.1 

10 CFR 2.740(b) 2.12.2.2 

 2.12.2.4 

 6.3.3.1 

10 CFR 2.740(b)(1) 2.12.1 

 2.12.2.2 

 2.12.2.4 

 2.12.4 

 10 CFR 2.740(b)(2) 2.12.2.4.1 

 2.12.2.7 

10 CFR 2.740(b)(3) 2.12.2.2
CFR INDEX 

CFR 24 JUNE 2011 

10 CFR 2.740(c) 2.12.2.2 

 2.12.2.6 

 2.12.4 

 2.12.5 

 3.13.4.1 

10 CFR 2.740(c)(6) 2.12.2.4 

10 CFR 2.740(e) 2.12.2.8 

10 CFR 2.740(f) 2.12.2.6 

 2.12.5 

10 CFR 2.740(f)(1) 2.12.4 

10 CFR 2.740(f)(2) 2.12.2.6 

10 CFR 2.740(h) 3.13.4.1 

10 CFR 2.740a 2.12.2.2 

10 CFR 2.740a(d) 2.12.2.2 

10 CFR 2.740a(h) 2.12.2.2 

10 CFR 2.740b 2.12.2.2 

10 CFR 2.740b(a) 2.12.3 

10 CFR 2.741 2.12.2 

 2.12.2.2 

 3.1.2.9 

10 CFR 2.741(d) 2.12.4 

10 CFR 2.742 2.12.3 

10 CFR 2.743 3.12 

 3.14 

10 CFR 2.743(a) 3.14 

10 CFR 2.743(b)(2) 3.14 

10 CFR 2.743(b)(3) 3.12 

 3.14 
CFR INDEX 

JUNE 2011 CFR 25 

10 CFR 2.743(c) 3.12.1.1 

 3.12.1.1.1 

 4.4.1 

10 CFR 2.743(g) 3.12.2 

10 CFR 2.743(i) 3.11 

10 CFR 2.744 6.24.1 

10 CFR 2.744(d) 2.12.2.4.2 

 

10 CFR 2.749 2.2 

 3.5.1 

 3.5.2 

 3.5.4 

 3.5.7 

 5.8.4 

10 CFR 2.749(a) 3.5.3 

 3.5.4 

 3.5.6 

 3.5.7.1 

10 CFR 2.749(b) 3.5.3 

 3.5.4 

10 CFR 2.749(d) 3.5.7.2 

 6.1.4.3 

10 CFR 2.750(c) 2.10.9.1 

10 CFR 2.751a 2.6 

 2.12.1 

 

10 CFR 2.751a(c) 2.6.1 

10 CFR 2.751a(d) 2.6.2.1 

 

10 CFR 2.752 2.6 

10 CFR 2.752(b) 2.6.1 

10 CFR 2.752(c) 2.6.2.1 

 6.5.3 
CFR INDEX 

CFR 26 JUNE 2011 

10 CFR 2.753 3.10 

10 CFR 2.754 4.2 

 4.2.2 

10 CFR 2.754(a) 3.1.2.12 

10 CFR 2.754(b) 4.2.2 

10 CFR 2.754(c) 4.2 

 4.2.1 

10 CFR 2.757 3.14.1 

10 CFR 2.757(c) 3 14 

 3.14.1 

10 CFR 2.758 2.10.5.2.1 

 2.10.5.6 

 3.1.2.1 

 3.8.3.2 

 5.4 

 5.12.1 

 6.9 

 6.11 

 6.21.4 

10 CFR 2.758(b) 6.9 

 6.21.4 

10 CFR 2.758(b)(2) 6.11 

10 CFR 2.758(d) 6.21.4 

10 CFR 2.759 2.12.2 

 4.1 

10 CFR 2.760(a) 3.1.2.6 

 4.3
CFR INDEX 

JUNE 2011 CFR 27 

10 CFR 2.760a 3.1.2.2.B 

 3.1.2.8 

 3.4.2 

 3.5.7.1 

 6.10.1 

10 CFR 2.763 5.11 

10 CFR 2.764 3.1.2.2.B 

 

10 CFR 2.764(e) 4.3 

10 CFR 2.764(f)(2) 5.7.5 

10 CFR 2.771 4.5 

 5.14 

 

10 CFR 2.780 6.5 

 6.5.1 

10 CFR 2.780(a) 6.5.1 

10 CFR 2.780(d) 6.5.1 

10 CFR 2.781 6.5 

10 CFR 2.781(a) 6.5 

 6.5.2 

10 CFR 2.786 3.1.2.6 

 4.3 

 5.1 

 5.1.1 

 5.7.5 

 5.9.1 

 5.10.1 

 5.10.2 

 5.12.1 

 5.12.2 

 5.12.2.2 

 6.30.8 

 6.36 

10 CFR 2.786(a) – (f) 5.0 
CFR INDEX 

CFR 28 JUNE 2011 

10 CFR 2.786(b) 5.1.1 

 5.2.1 

 5.3 

 5.9.1 

10 CFR 2.786(b)(2) 5.3 

10 CFR 2.786(b)(4) 5.1 

 5.1.1 

 5.1.3 

 5.3 

 5.5 

 5.6 

 5.12.2 

 6.30.8 

 6.36 

10 CFR 2.786(d) 5.2 

 5.10.1 

 5.10.2 

 

10 CFR 2.786(e) 5.14 

10 CFR 2.786(g) 5.0 

 5.12.1 

 5.12.2 

 5.12.2.1 

 5.12.4 

10 CFR 2.788 4.3 

 4.6.3 

 5.7 

 5.7.1.2 

 5.7.1.3 

 5.7.2 

 6.14.2 

 6.26 

10 CFR 2.788(a)(3) 6.26 

10 CFR 2.788(b)(2) 5.7.1.3
CFR INDEX 

JUNE 2011 CFR 29 

10 CFR 2.788(e) 5.7 

 5.7.1.2 

 5.7.1.3 

 5.7.1.3.3 

 6.14.2 

10 CFR 2.788(f) 5.7 

10 CFR 2.790 2.12.2.4 

 2.12.2.4.5 

 3.1.2.8 

 6.24 

 6.24.1 

 6.24.3 

 6.24.3.1 

 6.24.3.2 

10 CFR 2.790(a) 6.24.3 

10 CFR 2.790(a)(7) 2.12.2.4.2 

 2.12.2.4.3 

 6.24.3.1 

10 CFR 2.790(b) 6.24.3 

 6.24.3.1 

10 CFR 2.790(b)(1) 6.24 

 6.24.3 

 6.24.3.2 

10 CFR 2.790(b)(4) 6.24.3 

 6.24.3.1 

10 CFR 2.790(b)(6) 6.24.3.1 

10 CFR 2.790(d) 2.12.2.4.2 

 6.24.3 

 6.24.3.2 

10 CFR 2.800-2.807 6.21.4 

 6.22 

10 CFR 2.802 3.1.2.1 

 6.22.2 
CFR INDEX 

CFR 30 JUNE 2011 

10 CFR 2.1000 6.30.3 

10 CFR 2.1010 2.12.7.1 

10 CFR 2.1103 6.30.8 

 6.36 

10 CFR 2.1115(a) 6.36 

10 CFR 2.1115(b) 6.36 

10 CFR 2.1117 6.30.8 

10 CFR 2.1203 2.10.3.3.5 

 2.12.1 

 3.1.2.12.1 

10 CFR 2.1203(c) 6.5.5.1 

10 CFR 2.1205(e) 2.10.1 

10 CFR 2.1205(m) 6.16.1.1 

10 CFR 2.1205(o) 2.10.10 

10 CFR 2.1209(c) 3.1.2.12.1 

 

10 CFR 2.1209(d) 6.14.3 

 

10 CFR 2.1213 6.14.2 

 6.26 

10 CFR 2.1231(b) 3.1.2.12.1 

10 CFR 2.1231(c) 6.5.5.1 

10 CFR 2.1233 6.14.1 

10 CFR 2.1239 6.21.4 

10 CFR 2.1263 6.14.2 

 6.26 

10 CFR 2.1322(c) 5.2.1 

10 CFR 2.1322(d) 6.31.1 
CFR INDEX 

JUNE 2011 CFR 31 

10 CFR 2.1327(d) 5.7.1.2 

 6.31.4 

10 CFR 9.3-9.16 6.24 

10 CFR 9.50 6.24 

10 CFR 9.51 6.24 

10 CFR 20.1101 2.10.8.1 

 6.6 

10 CFR Part 30 2.10.4.1.1.1.E 

10 CFR 30.10(a)(1) 6.25.4 

10 CFR 30.32(a) 6.14.4 

10 CFR 30.35(a) 6.6.1.1 

10 CFR 30.35(c)(2) 6.6.1.1 

10 CFR Part 36 3.8 

10 CFR Part 40 6.14 

 6.31 

10 CFR Part 40, Appendix A 6.6.1.1 

10 CFR 40.42(c) 6.14.5 

10 CFR 40.42(e) 6.14.5 

10 CFR Part 50 1.3 

 2.10.4.1.1.1.E 

 2.12.2.2 

 3.1.2.2.B 

 3.1.2.5 

 3.4 

 6.7 

 6.9 

 6.16.7 

 6.16.9 

 6.20 

 6.21.6 

 6.31.3 

 6.36 
CFR INDEX 

CFR 32 JUNE 2011 

10 CFR Part 50, Appendix A 6.21.6 

10 CFR Part 50, Appendix E 3.4 

 6.31.3 

10 CFR 50.10 6.20 

 6.20.1 

10 CFR 50.10(c) 6.20 

 6.20.1 

 

10 CFR 50.10(e) 6.20 

 6.20.2 

10 CFR 50.12 2.2.3 

 6.20 

 6.21.4 

10 CFR 50.12(a) 6.20 

10 CFR 50.12(b) 6.20 

10 CFR 50.13 2.10.5.9 

10 CFR 50.22 6.23 

10 CFR 50.30(d) 6.3.1 

10 CFR 50.33 6.31.3.1 

10 CFR 50.33(f) 3.4 

 6.9 

 6.31.3.1 

10 CFR 50.33(k)(1) 6.31.3.5 

10 CFR 50.33a (Not in current CFR) 1.10 

10 CFR 50.34(b) 6.3.1 

10 CFR 50.36 6.28 

10 CFR 50.40 6.1 

10 CFR 50.40(d) 6.17.1 

10 CFR 50.44 3.4 
CFR INDEX 

JUNE 2011 CFR 33 

10 CFR 50.46 6.16.7 

10 CFR 50.47 3.4 

 6.31.3 

10 CFR 50.47(a)(1) 1.9 

 3.8 

 6.11 

10 CFR 50.47(a)(2) 1.9 

 3.12.1.5 

10 CFR 50.47(b) 6.21.3 

10 CFR 50.47(d) 6.17.1 

10 CFR 50.54(m) 6.31.3 

10 CFR 50.55 3.4.5.1 

10 CFR 50.55a 6.16.9 

10 CFR 50.56 3.4.5 

10 CFR 50.57 6.14 

 6.17.1 

10 CFR 50.57(a) 6.17.1 

10 CFR 50.57(a)(1) 3.4.5 

10 CFR 50.57(a)(3) 2.10.5 

10 CFR 50.57(c) 6.15.3 

 6.16.1.1 

 6.17.1 

10 CFR 50.58(b)(6) 5.7.1.2 

 

10 CFR 50.59 3.1.2.2 

 6.1.6 

10 CFR 50.59(a)(1) 2.5 

 6.1.6 

10 CFR 50.59(a)(2) 6.1.6 
CFR INDEX 

CFR 34 JUNE 2011 

10 CFR 50.62 6.21.6 

10 CFR 50.68 6.21.6 

10 CFR 50.68(b) 6.16.9 

10 CFR 50.72 6.5.5.1 

10 CFR 50.72(b)(1) 6.21.7 

10 CFR 50.75 3.4 

 6.31.3.5 

10 CFR 50.75(c) 6.6.1.1 

 6.31.3.1 

 6.31.3.5 

10 CFR 50.82 6.6.1.1 

 6.29 

 6.31.3.5 

10 CFR 50.82(a) 6.29 

10 CFR 50.82(b) 6.6.1.1 

10 CFR 50.82(c) 6.6.1.1 

10 CFR 50.82(e) 2.10.8.1 

 6.6 

10 CFR 50.90 6.1 

 6.1.5 

 6.3.1 

 6.3.1.1 

10 CFR 50.91 6.1 

10 CFR 50.100 6.25.1 

 6.25.4 

10 CFR 50.109 6.10.2.1 

10 CFR Part 51 1.2 

 3.4.1 

 6.1 

 6.7 

 6.11 

 6.16.1 
CFR INDEX 

JUNE 2011 CFR 35 

 6.16.6 

 6.30.2.4 

10 CFR Part 51, Subpart A 1.2 

 6.11 

10 CFR 51.5(b) 6.1.3.1 

 6.1.4.4 

10 CFR 51.5(c) 6.1.3.1 

 6.1.4.4 

10 CFR 51.21 6.16 

10 CFR 51.22 2.10.4.1.1.1.E 

 2.10.5.2.1 

 6.16.1.1 

10 CFR 51.22(c) 2.10.4.1.1.1.E 

 6.16.1.1 

 6.16.10 

 6.31.3.3 

10 CFR 51.23 6.16.1.1 

10 CFR 51.23(b) 6.16.11 

10 CFR 51.25 6.1.4.4 

10 CFR 51.30(a)(2) 6.16 

10 CFR 51.33(c) 1.2 

 6.13 

10 CFR 51.53(a) 6.16.1.1 

10 CFR 51.53(b) 6.16.1.2
CFR INDEX 

CFR 36 JUNE 2011 

10 CFR 51.53(c)(3) 1.2 

 3.8.3.2 

 6.13 

10 CFR 51.71(d) 6.11 

10 CFR 51.92 6.16.1.1 

10 CFR 51.95 6.16.4 

 6.16.5 

10 CFR 51.95(c) 6.11 

10 CFR 51.102 6.16.3 

10 CFR 51.106 6.16.4 

 6.16.5 

10 CFR 51.109 6.16.1 

10 CFR 51.109(c) 6.16 

10 CFR 51.109(d) 6.16 

10 CFR Part 52 1.3 

 2.2.5 

 6.1.4 

 6.7 

 6.25.3 

10 CFR 52, Subpart A 1.3 

 6.7 

10 CFR 52, Appendix Q 1.3 

 6.7 

10 CFR 52.97(b)(2) 6.1.4 

10 CFR 52.103(a) 2.2.5 

10 CFR 52.103(b) 2.2.5 

10 CFR 52.103(d) 6.7 

10 CFR Part 54 3.4.5.1 

 6.11 
CFR INDEX 

JUNE 2011 CFR 37 

10 CFR 54.4 6.11 

10 CFR 54.21(a) 6.11 

10 CFR 54.21(c) 6.11 

10 CFR 54.27 6.11 

10 CFR 54.29(a) 2.10.5.2.1 

 6.11 

10 CFR 54.29(b) 6.11 

10 CFR 54.29(c) 6.11 

10 CFR Part 70 2.12.2.2 

 3.1.2.2.B 

 3.1.2.5 

 5.4 

 5.8.10 

 6.14 

 6.14.4 

10 CFR 70.18 6.14 

10 CFR 70.21(a)(3) 6.14.4 

10 CFR 70.23 6.14 

 6.17.1 

10 CFR 70.23(a)(7) 6.14 

10 CFR 70.23(a)(8) 6.14 

10 CFR 70.23(b) 6.14 

10 CFR 70.23a 6.14 

10 CFR 70.25(a) 6.6.1.1 

10 CFR 70.25(c)(2) 6.6.1.1 

10 CFR 70.31 6.14 

 6.17.1 
CFR INDEX 

CFR 38 JUNE 2011 

10 CFR 70.31(e) 6.14 

10 CFR 71.12 6.14 

10 CFR Part 72 2.10.5.9 

 6.9 

10 CFR Part 73 2.10.5.9 

10 CFR 73.1 2.10.5.9 

10 CFR 73.5 2.2.3 

 2.10.5.9 

 6.1.4 

10 CFR 73.60(f) 2.10.5.9 

10 CFR 76.62(c) 5.8.13 

 6.30.6 

10 CFR 76.85 6.30.6 

10 CFR 110.82(c)(2) 6.30.2 

10 CFR 110.84(a) 2.10.4.1.3 

 6.30.2 

10 CFR 110.84(a)(1) 2.10.4.1.3 

10 CFR 110.84(c) 6.30.2 

10 CFR Part 171 6.25.6 

40 CFR 1500 6.16 

43 CFR 10.4 6.35 
 

 ___________________________________ 

 

 Statute Index 

 ___________________________________ 
This page intentionally left blank. 
STATUTE INDEX 

JUNE 2011 STATUTE 1 

In using this index, check any indicated parallel citations for additional references. 

AEA = Atomic Energy Act of 1954 

FOIA = Freedom of Information Act 

NEPA = National Environmental Policy Act 

5 U.S.C. 552(a)(6)(A) [FOIA] 6.24.1 

5 U.S.C. 552(a)(6)(C) [FOIA] 6.24.1 

5 U.S.C. 552(b) [FOIA] 6.24 

5 U.S.C. 552(b)(4) [FOIA] 6.24.1 

5 U.S.C. 552(b)(7)(D) [FOIA] 2.12.2.4.2 

6.24.3.1 

5 U.S.C. App. 3 § 6(a)(2) [Inspector General Act] 6.25.14 

5 U.S.C. App. 10(b) [Federal Advisory Committee Act] 6.24 

28 U.S.C. 144 3.1.4.2 

28 U.S.C. 455 3.1.4.2 

28 U.S.C. 455(a) 3.1.4.2 

28 U.S.C. 455(b)(2) 3.1.4.2 

28 U.S.C. 455(e) 3.1.4.2 

28 U.S.C. 1821 3.13.4.1 

28 U.S.C. 2341 et seq. [Hobbs Act] 4.5 

5.14 

5.15 

28 U.S.C. 2347(c) 5.15 

AEA § 11e(2) 2.2.5 

42 U.S.C. 2014(aa) [AEA § 11] 6.14 
STATUTE INDEX 

STATUTE 2 JUNE 2011 

42 U.S.C. 2014(z) [AEA § 11] 6.14 

42 U.S.C. 2018 [AEA § 271] 6.16 

AEA § 274o 2.2.5 

42 U.S.C. 2071 [AEA § 51] 6.14 

42 U.S.C. 2073 [AEA § 53] 6.14 

42 U.S.C. 2091 [AEA § 61] 6.14 

42 U.S.C. 2093 [AEA § 63] 6.14 

42 U.S.C. 2133(b) [AEA §103] 1.6.2 

2.10.4.1.1.2 

42 U.S.C. 2135c(5) [AEA § 105c(5)] 6.3 

42 U.S.C. 2201(b) [AEA § 161] 2.10.4.1.1.2 

6.25.1 

42 U.S.C. 2201(c) [AEA § 161] 2.12.5 

6.25.12 

42 U.S.C. 2201(i) [AEA § 161] 6.25.1 

42 U.S.C. 2232a [AEA § 182(a)] 1.6.2 

6.9 

42 U.S.C. 2234 [AEA § 184] 6.31 

42 U.S.C. 2235 [AEA § 185] 1.2 

3.4.5 

42 U.S.C. 2236 [AEA § 186] 1.6.2 

6.25.1 

42 U.S.C. 2236a [AEA § 186] 6.5.5.1 

6.25.2 

42 U.S.C. 2239 [AEA § 189] 6.1.4.4 

6.31 

42 U.S.C. 2239(a) [AEA § 189] 2.10.1 

2.10.3.3 

2.10.4.1.3 

6.1.4 
STATUTE INDEX 

JUNE 2011 STATUTE 3 

6.25.2 

42 U.S.C. 2239(a)(1)(A) [AEA § 189] 2.10.3 

2.10.4 

2.10.4.1.1.2 

42 U.S.C. 2243 [AEA § 193] 6.14 

42 U.S.C. 2280 [AEA § 232] 6.25.1 

42 U.S.C. 2282 [AEA § 234] 6.25.1 

42 U.S.C. 2282(b) [AEA § 234] 6.25.10 

42 U.S.C. 4332 [NEPA] 6.16 

42 U.S.C. 4332(2)(c) [NEPA] 6.7.1 

6.16.1.1 

 

42 U.S.C. 4332(2)(c)(iii) [NEPA] 6.14.4 

42 U.S.C. 5851(a) [Energy Reorganization Act § 211] 2.10.3.3.3.A 

Administrative Procedure Act, 5 U.S.C. 551 et seq. 6.25.3 

Administrative Procedure Act, 5 U.S.C. 554 [§ 5] 6.25.3 

Administrative Procedure Act, 5 U.S.C. 554(a)(4) [§ 5] 6.30.1 

Administrative Procedure Act, 5 U.S.C. 554(b)(3) [§ 5(a)] 2.5.2 

Administrative Procedure Act, 5 U.S.C. 554(d) [§ 5(c)] 3.1.5 

Administrative Procedure Act, 5 U.S.C. 554(e) [§ 5(d) 3.1.2.5 

Administrative Procedure Act, 5 U.S.C. 556(c) [§ 7(b)] 3.3.4 

Administrative Procedure Act, 5 U.S.C. 556(c)(9) [§ 7(b)] 3.1.2.5 

Administrative Procedure Act, 5 U.S.C. 556(d) [§ 7(c)] 3.14.1 

Administrative Procedure Act, 5 U.S.C. 558(c) [§ 9(b)] 3.1.2.9 

6.25.5 
STATUTE INDEX 

STATUTE 4 JUNE 2011 

Administrative Procedure Act, 5 U.S.C. 701(a)(2) [§ 10] 6.25.3.1 

Administrative Procedure Act, 5 U.S.C. 705 § 10(d) [§ 10(d)] 5.7.3 

Atomic Energy Act § 11e(2) [42 U.S.C. 2014(e)(2)] 2.2.5 

Atomic Energy Act § 11s [42 U.S.C. 2014(s)] 6.31 

Atomic Energy Act § 103b [42 U.S.C. 2133(b)] 1.6.2 

2.10.4.1.1.2 

Atomic Energy Act § 104b [42 U.S.C. 2134(b)] 6.3 

Atomic Energy Act § 105 [42 U.S.C. 2135] 2.10.3.6 

2.10.4.1.1.1.B 

6.3 

6.3.1 

6.3.1.1 

6.3.2 

Atomic Energy Act § 105c [42 U.S.C. 2135(c)] 2.10.3.6 

6.3 

6.3.A 

6.3.B 

6.3.1 

6.3.2 

Atomic Energy Act § 105c(1) [42 U.S.C. 2135(c)(1)] 6.3.1 

Atomic Energy Act § 105c(2) [42 U.S.C. 2135(c)(2)] 6.3.1 

Atomic Energy Act § 105c(5) [42 U.S.C. 2135(c)(5)] 6.3 

Atomic Energy Act § 105c(6) [42 U.S.C. 2135(c)(6)] 6.3 

Atomic Energy Act § 109(b) [42 U.S.C. 2139(b)] 6.30.2.2 

Atomic Energy Act § 126 [42 U.S.C. 2155] 6.30.2.2 

Atomic Energy Act §§ 127 and 128 [42 U.S.C. 2156 & 2157] 6.30.2.2 

Atomic Energy Act § 134 [42 U.S.C. 2160d] 3.2.1 

Atomic Energy Act § 134a(2) [42 U.S.C. 2160d] 6.30.2.3 

Atomic Energy Act § 161 [42 U.S.C. 2201] 6.25.1 
STATUTE INDEX 

JUNE 2011 STATUTE 5 

Atomic Energy Act § 161b [42 U.S.C. 2201(b)] 2.10.4.1.1.2 

6.25.1 

Atomic Energy Act § 161c [42 U.S.C. 2201(c)] 2.12.5 

6.25.12 

Atomic Energy Act § 161i(3) [42 U.S.C. 2201(i)] 6.25.1 

Atomic Energy Act § 181 [42 U.S.C. 2231] 3.14.1 

Atomic Energy Act § 182 [42 U.S.C. 2232] 1.6.2 

Atomic Energy Act § 182(a) [42 U.S.C. 2232] 6.9 

Atomic Energy Act § 182(b) [42 U.S.C. 2232] 3.12.2 

Atomic Energy Act § 184 [42 U.S.C. 2234] 6.31 

Atomic Energy Act § 185 [42 U.S.C. 2235] 1.2 

3.4.5 

Atomic Energy Act § 186 [42 U.S.C. 2236] 1.6.2 

6.5.5.1 

6.25.1 

6.25.2 

Atomic Energy Act § 189 [42 U.S.C. 2239] 2.2.3 

2.10.3 

2.10.4.1.3 

2.10.5.9 

6.1.4.4 

6.11 

6.30.2 

Atomic Energy Act § 189a [42 U.S.C. 2239(a)] 2.2.2 

2.2.3 

2.2.5 

2.10.1 

2.10.3 

2.10.4 

Atomic Energy Act § 189a [42 U.S.C. 2239(a)] (Cont.) 2.10.4.1 

2.10.4.1.1.1.D 

2.10.4.1.3 

2.10.5.2 

2.10.5.2.2 
STATUTE INDEX 

STATUTE 6 JUNE 2011 

2.10.5.5.1 

3.2.2 

6.1 

6.1.4 

6.3.1.1 

6.25.2 

Atomic Energy Act § 189a(1) [42 U.S.C. 2239(a)] 2.2 

2.2.2 

2.2.4 

2.10.4 

6.31 

Atomic Energy Act § 189a(1)(A) [42 U.S.C. 2239(a)] 2.2.4 

6.31 

Atomic Energy Act § 189b [42 U.S.C. 2239(a)] 6.25.6 

Atomic Energy Act § 232 [42 U.S.C. 2280] 6.25.1 

Atomic Energy Act § 234 [42 U.S.C. 2282] 1.6.2 

6.25.1 

6.25.10 

Atomic Energy Act § 271 [42 U.S.C. 2018] 6.16 

Atomic Energy Act § 274(i) [42 U.S.C. 2021] 2.11.2 

Atomic Energy Act § 274o [42 U.S.C. 2021(o)] 2.2.5 

Endangered Species Act § 7 6.8.1 

Energy Reorganization Act of 1974, 42 U.S.C. 5801 et seq. 1.9 

Energy Reorganization Act of 1974 § 211 [42 U.S.C. 5851] 2.10.3.3.3.A 

Equal Rights Act § 211 6.25.15 

Federal Advisory Committee Act § 10(b) [5 U.S.C. App.] 6.24 

Federal Register Act, 44 U.S.C. 1508 1.8.1 

2.5.3 

Federal Water Pollution Control Act 6.16.6.1 

6.16.8.5 

Federal Water Pollution Control Act § 401 3.11 
STATUTE INDEX 

JUNE 2011 STATUTE 7 

Federal Water Pollution Control Act (Clean Water Act) § 511(c)(2) 6.16.8.5 

Freedom of Information Act (FOIA) 2.12.2.4 

2.12.2.4.2 

2.12.2.4.3 

Freedom of Information Act, 5 U.S.C. 552(a)(6)(A) 6.24.1 

Freedom of Information Act, 5 U.S.C. 552(a)(6)(C) 6.24.1 

Freedom of Information Act, 5 U.S.C. 552(b) 6.24 

Freedom of Information Act, 5 U.S.C. 552(b)(4) 6.24.1 

Freedom of Information Act, 5 U.S.C. 552(b)(7)(D) 2.12.2.4.2 

6.24.3.1 

Hobbs Act, 28 U.S.C. 2341 et seq. 4.5 

5.14 

5.15 

Inspector General Act of 1978, 5 U.S.C. App. 3 6.25.14 

National Environmental Policy Act (NEPA) 1.9 

2.10.3 

2.10.3.3.1.A 

2.10.4.1.1 

2.10.4.1.1.1.B 

2.10.4.1.1.1.D 

2 10.4.1.1.1.F 

2.10.4.1.1.2 

2.10.4.1.2 

2.10.4.1.3 

2.10.5.2.1 

2.10.5.4 

2.10.5.5 

2.10.5.8 

2.10.5.9 

2.10.8 

2.10.8.1 

3.1.2.2.A 

3.1.2.8 

3.1.2.10 

3.1.2.11 
STATUTE INDEX 

STATUTE 8 JUNE 2011 

National Environmental Policy Act (Cont.) 3.3.1 

3.4.1 

3.8.3.2 

3.8.3.6 

3.9.1 

3.10 

3.17 

5.7.1.3.1 

5.7.5 

5.12.2.1 

5.12.2.2 

6.1.4.4 

6.1.6 

6.3.1.1 

6.7 

6.7.1 

6.11 

6.16 through 6.16.9 

6.16.11 

6.17.1 

 6.20.2 

6.30.2.1 

6.31.3.2 

National Environmental Policy Act § 102(2) [42 U.S.C. 4332(2)] 6.7 

National Environmental Policy Act § 102(2)(c) [42 U.S.C. 4332(2)(c)] 6.7.1 

6.16.1.1 

6.16.2 

6.16.4 

National Environmental Policy Act § 102(2)(e) [42 U.S.C. 4332(2)(e)] 6.16.1 

6.16.4 

National Historic Preservation Act, 16 U.S.C. 470-470(b), 470(c)-470(n) 6.16.8 

6.33 

Native American Graves Protection and Repatriation Act 6.35 

Nuclear Non-Proliferation Act of 1978 3.2.1 

6.30.2 

6.30.2.2 

Nuclear Waste Policy Act of 1982 6.16 

6.16.6 

6.21.6 

6.30.3 

6.36 
STATUTE INDEX 

JUNE 2011 STATUTE 9 

Privacy Act, 5 U.S.C. 552a 6.24 

6.24.2 

Public Utilities Regulatory Policies Act of 1978 6.3 
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BIBLIOGRAPHIC DATA SHEET

(See instructions on the reverse)

NRC FORM 335

(12-2010)

NRCMD 3.7

U.S. NUCLEAR REGULATORY COMMISSION 1. REPORT NUMBER

 (Assigned by NRC, Add Vol., Supp., Rev.,

 and Addendum Numbers, if any.)

NUREG-0386

Digest 16

3. DATE REPORT PUBLISHED

MONTH

June

YEAR

2011

4. FIN OR GRANT NUMBER

2. TITLE AND SUBTITLE

United States Nuclear Regulatory Commission

Staff Practice and Procedure Digest

5. AUTHOR(S) 6. TYPE OF REPORT

Legal digest on rules of practice

7. PERIOD COVERED (Inclusive Dates)

July 1972 - September 2010

8. PERFORMING ORGANIZATION - NAME AND ADDRESS (If NRC, provide Division, Office or Region, U.S. Nuclear Regulatory Commission, and mailing address; if contractor,

Office of the General Counsel

9. SPONSORING ORGANIZATION - NAME AND ADDRESS (If NRC, type "Same as above"; if contractor, provide NRC Division, Office or Region, U.S. Nuclear Regulatory Commission, 

Office of the General Counsel

provide name and mailing address.)

and mailing address.)

10. SUPPLEMENTARY NOTES

11. ABSTRACT (200 words or less)

The 16th edition of the NRC Practice and Procedure Digest contains a digest of Commission, Atomic Safety and Licensing

Appeal Board, and Atomic Safety and Licensing Board decisions issued from July 1972 to September 2010, which interpret the

NRC's rules of practice for NRC adjudications.

12. KEY WORDS/DESCRIPTORS (List words or phrases that will assist researchers in locating the report.)

Practice and Procedure Digest

Rules of Practice 14. SECURITY CLASSIFICATION

13. AVAILABILITY STATEMENT

unlimited

(This Page)

unclassified

(This Report)

unclassified

15. NUMBER OF PAGES

800

16. PRICE

NRC FORM 335 (12-2010)

U.S. Nuclear Regulatory Commission

Washington, DC 20555-001

U.S. Nuclear Regulatory Commission

Washington, DC 20555-001