(d) The notice of hearing will state that the board will determine whether the application and the record of the proceeding contain sufficient information, and the review of the application by the Commission's regulatory staff has been adequate, to support the findings proposed to be made by the Director of Regulation and the issuance of the proposed provisional construction permit. The notice of hearing will also state that the board will not conduct a de novo evaluation of the application.

(e) Prior to a hearing, board members should review and become familiar with:

The record of any relevant prior proceedings in the case, including initial decisions and Commission orders. The Advisory Committee on Reactor Safeguards (ACRS) report, the staff safety analysis, the application and all other papers filed in the proceeding. The Commission's Rules of Practice, 10 CFR Part 2, and such other regulations or published statements of policy of the Commission as may be pertinent to the proceedings. (f) At any time when a board is in existence but is not actually in session, the chairman has all the powers of the board to take action on procedural matters. The chairman may have occasion, when the board is not in session, to dispose of preliminary procedural requests including, among other things, motions by parties relating to the conduct of the hearing. He may wish to discuss such requests with the other members of the board before ruling on them. No interlocutory appeal 2 may be taken by a party as a matter of right from a ruling of the chairman or the board. The board should refer the challenged ruling to the Commission for a final decision if, in its judgment, a prompt decision is necessary to prevent detriment to the public interest or unusual delay or expense. This authority should be exercised sparingly, and only when deemed essential in fairness to the parties or the public.

II. PREHEARING CONFERENCE

(a) A prehearing conference, which is authorized in 10 CFR § 2.752, serves a vital function in defining substantive issues and in settling matters of procedure before the start of the hearing. A prehearing conference should be regarded as an informal meeting of the board with the parties to facilitate and expedite the conduct of the hearing where (1) the significant safety questions can be identified and discussed, (2) any matters in controversy between the parties can be clearly identified, and (3) any preliminary matters, such as identifying the witnesses to be presented by the parties or requested by the board; specifying the order and method of presentation of their testi

2 An interlocutory appeal means an appeal to the Commission from a ruling made by the board during the time between the issuance of a notice of hearing and the issuance of the initial decision.

mony; scheduling the exchange of prepared testimony and documentary evidence; determining the contents of the decisional record and the method of designating exhibits; discussing procedures to be followed at the hearing; and arriving at such agreements as will aid in the conduct and expeditious disposition of the proceeding, can be disposed of. The Commission strongly encourages their use and expects that a prehearing conference will ordinarily be held in each licensing proceeding before an atomic safety and licensing board. However, the prehearing conference is not a substitute for the hearing and matters discussed and agreements reached therein become a part of the decisional record only to the extent they are specifically incorporated in the decisional record by order or otherwise.

(b) The timing of the prehearing conference will depend on the nature of the case. When feasible, it will assist preparation for the hearing if the prehearing conference is held well in advance of the hearing. The date and place of the prehearing conference will usually be announced in the notice of hearing. Prehearing conferences are open to the public except under exceptional circumstances involving matters such as those referred to in 10 CFR 2.790 (a) and (b) ("company confidential" information; classified information; and certain privileged information not normally a part of the hearing record).

(c) It is expected that a transcript of each prehearing conference will be prepared.

(d) Any agreements reached or decisions made at the conference will be incorporated promptly in the formal record of the hearing without prejudice to the rights of any subsequent intervenor. The board will be expected at the opening of the hearing to state on the record that such a conference has been held and the time and place of the meeting and the persons who attended.

(e) The applicant, the regulatory staff and other parties will ordinarily provide each other and the board with copies of prepared testimony in advance of the hearing. A schedule may be established at the prehearing conference for exchange of prepared testimony. The applicant ordinarily files a summary of his application, including a summary description of the reactor and his evaluation of the considerations important to safety, and the staff files a safety analysis prior to the hearing. These may constitute the testimony of witnesses sworn at the hearing. All of these documents and prepared testimony are filed in the Commission's Public Document Room and are available for public inspection.

III. THE HEARING

The following procedures should be observed in the conduct of public hearings:

(a) Preliminary. (1) A verbatim transcript will be made of the hearing.

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(2) The chairman should hearing by stating the title of the proceeding and describing its nature.

(3) He should state the date, time, and place at which the prehearing conference was held, and identify the persons participating in it. He should summarize the prehearing order, or, if there is no written prehearing order, the results of the prehearing conference.

(4) He should explain the procedures for the conduct of the hearing. He should request that counsel for the parties identify themselves on the record, and provide them with the opportunity to make opening statements of their respective positions.

(5) He should describe, for the benefit of members of the public who may be present, the respective roles of the board, the ACRS and the staff, and the Commission procedures for review of the decision. He should also describe the continuing review and inspection surveillance conducted by the Commission after a construction permit or an operating license has been issued.

(b) Intervention and limited appearances. (1) The chairman should call attention to the provisions of 10 CFR 2.714 Intervention and 2.715 Participation by a person not a party (limited appearance). Не should briefly explain these provisions and the rights of persons who may qualify as intervenors or as persons to be permitted to make limited appearances. He should call attention to the provision of 10 CFR 2.714(d) that the granting of a petition to intervene does not change or enlarge the issues specified in the notice of hearing unless expressly provided in the order allowing intervention.

(2) The chairman should inquire of those in attendance whether there are any who wish to participate in the hearing by intervention or by limited appearance.

(3) The board should rule on each request to participate in the hearing on either basis. The Commission's rules require that a petition for intervention be filed at least seven days prior to the start of the hearing. A board has general authority to extend the time for good cause with respect to allowing intervention.

(4) As required by 10 CFR 2.714, a person who wishes to intervene must set forth, in a petition for leave to intervene, his interest in the proceeding, how the interest may be affected by Commission action, and his contentions. After consideration of any answers, the board will rule on the petition. In any event, the board should not permit enlarging of the issues, or receive evidence from an intervenor, with respect to matters beyond the jurisdiction of the Commission.

(5) Those permitted to intervene become parties to the proceeding. Persons permitted to make limited appearances do not become parties, but should be permitted to make statements at such stage of the proceeding as the board may consider appropriate. A person making a limited appear

ance may only make an oral or written statement on the record, and may not participate in the proceeding in any other way. The board may wish to limit the length of oral statements. A member of the public does not have the right to participate unless he has been granted the right to intervene as a party or the right of limited appearance for the purpose of making a statement.

(6) It is important that the board make clear to the members of the public seeking to participate the difference between intervention and limited appearance. An intervenor, unlike a person making a limited appearance, has all the rights of the applicant and the staff to participate fully in the conduct of the hearing. For example, he may examine and cross-examine witnesses. A person making a limited appearance may want not only to state his position, but to raise questions which he would like to have answered. This should be permitted to the extent the questions are within the scope of the proceeding as defined by the issues set out in the notice of hearing, the prehearing conference report, and any later orders. Usually such persons should be asked to make their statements and raise their questions early in the proceeding so that the board will have an opportunity to be sure that relevant and meritorious questions are properly dealt with during the course of the hearing.

(7) It is the Commission's view that the rules governing intervention and limited appearances are necessary in the interest of orderly proceedings. The Commission also believes that though these two methods of public participation all members of the public are assured of the right to participate by a method appropriate to their interest in the matter. This should be fully explained at the beginning of the hearing. In some cases the board may feel that it must deny an application to intervene but that it can still accommodate the desire of the person involved by allowing him to make a statement and raise questions under the limited appearance rule.

(8) Boards have considerable discretion as to the manner in which they accommodate their conduct of the hearing to local public interest and the desires of local citizens to be heard. Particularly in cases where it is evident that there is local concern as to the safety of the proposed plant, boards should so conduct the hearing as to give appropriate opportunity for local citizens to express their views, while at the same time protecting the legal interest of all parties and the public interest in an orderly and efficient licensing process. Boards should give full public recognition to the fact that utilization of such opportunity is one of the important reasons why public hearings are held by the Commission and are held in the locality of interest.

(c) Opening statements and testimony. (1) In order to facilitate public understanding of the proceeding it is anticipated that

the applicant (who has the burden of proof in licensing proceedings), will, at an appropriate time early in the proceeding, make an oral statement describing in terms that will be readily understood by the public, the manner in which the safety of the public will be assured, by such provisions as siting, safety features of the reactor, including engineered safeguards, etc. It may be that the "summary description of the reactor and * * evaluation of the considerations important to safety" referred to at paragraph (e) of section II above, will satisfactorily serve as the basis for such oral statement.

(2) The staff will also, early in the proceeding but after the applicant has made the oral statement referred to in the preceding paragraph, make an oral statement describing the staff's evaluation of the application and the reasons for the conclusions reached by the staff, and summarizing the various steps taken by the staff and the ACRS in their review of the application.

(3) The testimony of all witnesses will be given under oath. These witnesses may be collectively sworn at the opening of the hearing or if additional witnesses are called upon to testify at a subsequent stage they may be sworn at the time of their appearance.

(4) There is ordinarily no need for oral recital of prepared testimony unless the board considers that some useful purpose will be served. Each witness presented by a party may be questioned by other parties and by the board. Unless testimony is being taken on a roundtable basis or there is some occasion for clarification of testimony as rendered, the board may wish to reserve its questions until the parties have completed questioning of the witnesses, since counsel for the respective parties will generally be prepared to develop the various lines of pertinent questions.

(5) Opportunity should be assured, on an orderly basis, for each party to comment on statements made by other parties.

(6) The proceedings should be conducted as expeditiously and informally as practicable, without impairing the development of a clear and adequate record. The order of presenting testimony may be freely varied in the conduct of the hearing. The board may find it helpful to take expert testimony from witnesses on a roundtable basis after the

receipt in evidence of prepared written testimony.

(7) Objections may be made by counsel to any questions or any line of questioning, and should be ruled upon by the board. The board may admit the testimony, may sustain the objection, or may receive the testimony, reserving for later determination the question of admissibility. In passing on objections, the board, while not bound to view proffered testimony according to its admissibility under strict application of the rules of evidence in judicial proceedings, should exclude testimony that is clearly irrelevant to issues in the case, or that pertains to matters outside the jurisdiction of the board

or the Atomic Energy Commission. Examples of matters which are considered irrelevant to the issues in the case or outside the jurisdiction of the board or the Atomic Energy Commission include the thermal effects (as opposed to the radiological effects) of the facility operation on the environment; the effect of the construction of the facility on the recreational, economic or political activities of the area near the site; and matters of aesthetics with respect to the proposed construction.

(d) Documentary evidence. (1) Documentary evidence may be offered in evidence as provided in 10 CFR 2.743.

(2) Such evidence offered during the course of the hearing should be described by counsel, and furnished to the reporter for marking. Documents offered for marking should be numbered in order of receipt. On identification of a document, it may be offered in evidence.

(e) Record. The transcript of testimony and the exhibits, together with all of the papers and requests filed in a proceeding, constitute the record for decision, except to the extent that official notice is taken pursuant to the following paragraph.

(f) Official notice. (1) "Official notice" is a legal term of art. Generally speaking, a decision by a board must be made on the basis of evidence which is in the record of the proceeding. A board, however, is expected to use its expert knowledge and experience in evaluating and drawing conclusions from the evidence that is in the record. The board may also take account of and rely on certain facts which do not have to be "proved" since they are "officially noticed"; these facts do not have to be "proved" since they are matters of common knowledge.

(2) Pursuant to 10 CFR 2.743 (1) "official notice" may be taken of any fact of which judicial notice might be taken by the courts of the United States and of any technical or scientific fact within the knowledge of the Commission as an expert body, if (i) the fact is specified in the record or is brought to the attention of the parties before the final decision, and (ii) every party adversely affected by the decision is afforded an opportunity to controvert the fact. (For example, a board might take "official notice" of the fact that high level wastes are encountered mainly as liquid residue from fuel reprocessing plants.) Matters which are "officially noticed" by a board furnish the same basis for findings of fact as matters which have been placed in evidence and proved in the usual sense.

(g) Participation by board members. (1) Boards are neither required nor expected to duplicate the review already performed by the regulatory staff and the ACRS and they are authorized to rely upon the uncontroverted testimony of the regulatory staff and the applicant and the uncontroverted conclusions of the ACRS. The role of the board is to decide whether the application and the record of the proceeding contain sufficient

information, and the review of the application by the Commission's regulatory staff has been adequate, to support the findings proposed to be made by the Director of Regulation and the issuance of the provisional construction permit proposed by the Director of Regulation. The board will not conduct a de novo evaluation of the application, but rather, will test the adequacy of the staff's review upon which are based the findings and form a provisional construction permit which the Director of Regulation proposes to issue. If the board believes that additional information is required in the technical presentation in such a case, it would be expected to request the applicant or staff to supplement the presentation. If a recess should prove necessary to obtain such additional evidence, the recess should ordinarily be postponed until available evidence on all issues has been received.

(2) A question may be certified to the Commission for its determination when the question is beyond the board's authority, or when a major or novel question of policy, law or procedure is involved which cannot be resolved except by the Commission and when the prompt and final decision of the question is important for the protection of the public interest or to avoid undue delay party. For example, a board may find it apor serious prejudice to the interests of a propriate to certify novel questions to the Commission as to the regulatory jurisdiction of the Commission or the right of persons to intervene.

(h) Close of hearing. (1) A board should give each party the opportunity to make a brief closing statement.

(2) A schedule should be set by the board and recorded, either in the transcript or by written order, of the dates upon which the parties are directed by the board to file proposed findings of fact and conclusions of law. Proposed transcript corrections and proposed findings and conclusions are ordinarily filed in the first instance by the applicant, with opportunity for response by the regulatory staff and any intervenor. The atomic safety and licensing board need allow only a minimum time for the filing of proposed findings of fact and conclusions of law, briefs, and proposed form of order or decision, as permitted by 10 CFR 2.754. It is expected that the proposed findings will ordinarily be extremely brief. Since there will be no significant issues in controversy, there will be no need for extensive findings.

(3) The board should dispose of any additional procedural requests.

(4) The chairman should formally close the hearing.

tions of the parties are made part of the record by issuance of written orders.

(b) On receipt of proposed findings and conclusions from the parties, the board should prepare the initial decision. Under the Administrative Procedure Act and the Commission's regulations, the decision should include:

(1) Findings, conclusions, and rulings, with the reasons or basis for them, on all material issues of fact, law or discretion presented on the record;

(2) All facts officially noticed and relied on, if any, in making the decision;

(3) The appropriate ruling, order or denial of relief, with the effective date and time within which exceptions to the initial decision may be filed;

(4) The time when the decision becomes final.

(c) A board will not ordinarily be expected to make formal recital of findings in greater detail than general or ultimate findings on the issues specified in the notice of hearing, namely, whether the application and the record of the proceeding contain sufficient information, and the review of the application by the Commission's regulatory staff has been adequate, to support the findings proposed to be made by the Director of Regulation and the issuance of the proposed provisional construction permit. The board will, of course, rule on findings of fact and conclusions of law proposed by the parties. To the extent that there may be disagreements between any of the parties on any particular matters, the board will be expected to make such detailed findings of fact as are appropriate to support the decisions reached on those matters. If the board finds affirmatively on the issues referred to above, the Director of Regulation will, upon his making the proposed findings, issue the permit. If the board finds negatively on those issues, the Director of Regulation will deny the application.

(d) A board will be expected to discuss concisely, in its decision, the principal safety matters involved in the issuance or denial of the proposed provisional construction permit. A board's initial decision should be prepared with the objective of familiarizing the public and the Commission with the reasons for the board's conclusions as to the sufficiency of the application and the record of the proceeding and the adequacy of the review of the application by the Commission's regulatory staff to support both the findings proposed by the Director of Regulation and the issuance of the provisional construction permit.

(e) It is expected that ordinarily a board will render its initial decision in an uncontested case within 15 days after its receipt of proposed findings of fact and conclusions of law filed by the parties.

(f) The initial decision will be transmitted to the Chief, Public Proceedings Branch, Office of the Secretary, for issuance.

(g) After a board's initial decision is issued, the entire record of the hearing, including the board's initial decision, will be sent to the Commission for review. In the course

of this review, the Commission may allow a board's decision to become the final decision of the Commission, may modify a board's decision, or may send the case back to the board for additional testimony on particular points or for further consideration of particular issues.

(h) After completion of construction, the applicant must obtain an operating license; but a hearing on the operating license will not be held unless demanded by a party or ordered by the Commission. Where a hearing is held at the operating stage, it would be the practice of the Commission to attempt to use the same board which conducted the construction permit hearing.

V. GENERAL

(a) Two members, being a majority of the board, constitute a quorum. The vote of a majority controls in any decision by a board, including rulings during the course of a hearing as well as formal orders and the initial decision. A dissenting member is, of course, free to express his dissent and the reasons for it in a separate opinion for the record.

(b) The Commission may designate a technically qualified alternate for a board. The alternate will receive copies and become familiar with the application and other documents filed by the parties prior to the start of the hearing. It is expected that the alternate will be constituted by the board as a member of the board in situations where a technically qualified member of the board becomes unavailable for further service prior to the start of the hearing.

(c) Title 10 CFR 2.719 and 2.780 specify the conditions on which there is permitted to be consultation between Commissioners and boards, on the one hand, and the staff, on the other hand, in initial licensing proceedings other than contested proceedings. Title 10 CFR 2.719 also permits a board, in the same type of proceeding, to consult with members of the panel from which members of the boards are drawn. Except for consultation by a board with the Chairman or Vice Chairman of the Atomic Safety and Licensing Board Panel, it is expected that such consultation by a board, when it occurs, will relate to specific technical matters rather than to matters of broad policy.

issues specified in the notice. In a contested proceeding, the board will determine:

(1) Whether in accordance with the provisions of 10 CFR 50.35(a);

(1) The applicant has described the proposed design of the facility, including, but not limited to, the principal architectural and engineering criteria for the design, and has identified the major features or components incorporated therein for the protection of the health and safety of the public;

(ii) Such further technical or design information as may be required to complete the safety analysis and which can reasonably be left for later consideration, will be supplied in the final safety analysis report;

(iii) Safety features or components, if any, which require research and development have been described by the applicant and the applicant has identified, and there will be conducted, a research and development program reasonably designed to resolve any safety questions associated with such features and components; and

(iv) On the basis of the foregoing, there is reasonable assurance that (a) such safety questions will be satisfactorily resolved at or before the latest date stated in the application for completion of construction of the proposed facility, and (b) taking into consideration the site criteria contained in 10 CFR Part 100, the proposed facility can be constructed and operated at the proposed location without undue risk to the health and safety of the public.

(2) Whether the applicant is technically qualified to design and construct the proposed facility;

(3) Whether the applicant is financially qualified to design and construct the proposed facility;

(4) Whether the issuance of a permit for the construction of the facility will be inimical to the common defense and security or to the health and safety of the public.

In considering those issues, however, the board will, as to matters not in controversy, be neither required nor expected to duplicate the review already performed by the Commission's regulatory staff and the ACRS; the board is authorized to rely upon the uncontroverted testimony of the regulatory staff and the applicant and the uncontroverted conclusions of the ACRS.

(c) Prehearing conference:

In contested proceedings, the use of the prehearing conference to identify what matters are in controversy and to clarify their relationship to the issues before the board is of primary importance.

(d) Participation by board members:

In contested proceedings, the board will determine controverted matters as well as decide whether the findings required by the Act and the Commission's regulations should be made. Thus, in such proceedings, the board will determine the matters in controversy and may be called upon to make technical judgments of its own on those matters. As to matters which are not in controversy,