ML19247D381
| ML19247D381 | |
| Person / Time | |
|---|---|
| Issue date: | 05/24/1979 |
| From: | Harold Denton, Dircks W NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS), Office of Nuclear Reactor Regulation |
| To: | |
| Shared Package | |
| ML19219A599 | List: |
| References | |
| REF-10CFR9.7 SECY-79-353, NUDOCS 8103040162 | |
| Download: ML19247D381 (13) | |
Text
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.i ATTACHMEVT C May 24, 1979 0
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COMF t!SSIONER ACTION For:
The Commissioners From:
Harold R. Denton, Director Office of Nuclear Reac:ce Reculation William J. Circks, Director Office of Nuclear Material Safety and Safeguards M /
Executive Ofrector for Operationse / J Thru:
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..s LICENSE APPLICATIONS Purcose:
1)
To obtain Conmission accreval of a delegation of authcrity f r determina:icn of "signif d car.:
changes" at the c;erating license antitrust review stage, and 2}
t: 'nferm the C;--itsien f
ev' sed antitrus review cr cedures fer ::erating license a:;lica:icns im:lemen:ir.; the prc:csec :eiegaticn, including crevisions for acti#ying the Commission as to all Staff determinations of whetner "significan changes" have cccurred.
Catecory:
This pa:er covers a cinct policy matter.
Resource estima:es are Category !.
Issue:
Whether the Commission seculd deisgate :: the Staff the authcrity :: determir.e une:her "signi#ican:
changes" in a licensse's activities nave cccurred subsecuen; :: the previous antitrust review by the A : rney General an: the C: missi:n.
A determination tna: ;ignifican: changas" na: :::urra: acui: initia:a another review by the A:::rney 3eneral in ::nnectier.
witn the Ocerating license a::'i:ation.
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2 Discussion:
A.
Delecation of Authority for Determinino "Sionificant Chances" Section 105c of the Atomic Energy Act of 1954, as amended, provides for a two stage antitrust review by the NRC.
The first stage is conducted as part of the NRC's review of an application for a construction permit.
This initial stage involves the principal NRO antitrust review and s'rves to identify any antitrust problems early in the licensing process.
During this initial stage, the' Attorney General is consulted and renders advice as to whether the ac-tivities under the license would create or maintain a situation inconsistent with the antitrust laws.
In connection with operating license applications that have had such an antitrust review 3t the con-struction permit stage, Section 105(c)(2) of the Atomic Energy Act of 1954, 2< emended, provides for a second, limited antitrust review by the Attorney General in those cases in which the Commission determines that "significant cnanges" have occurred subsequent to the previcus review by the Attorney General and the Commission.
The NRC Staff is seeking Commission approval to modify current internal procedures with regard to the making of a decision on whether "significant changes" have occurred.
Currently, an outside party, an applicant, or the NRC Staff may reouest the Commission to make the "significant changes" determination.
See Houston Lichtira & Power Co.
(South Texas oroject, Unit Nos. I and 2), Cocket Nos. 50-498A ana 50-499A, 5 NRC 1303,1318-1319 (1977); Texas Utilities Generatinc Co.,
(Comanche Peak Steam Elec ric Sta-ion, Units i and 2) Occket Nos. 50-445A and 50-446A, 7 NRC 950 (1973).
If this determination is made, the Staff then requests advice from the Attorney Generai cursuant to Section 105(c)(1) of the Atomic Energy Act of 1954, as amended.
The Staff pro;oses that the Commission delegate the authority to make "significant changes" determinations to the Staff.
ATTACHMENT C
3 The pros and cons of this proposed delegation are as follows:
pros:
1.
The croposed char.ge folicws the Commission's suggestien in South Texas, suora at 1318, where the Commission statec:
'The making of a 'significant change' determination triggering a referral to the Attorney General for his advice on its antitrust implications is a function which could and perhaps should be delegated to the regulatory staff."
2.
A "significant changes" determina:icn is a threshold determination which would trigger seeking formal advice from the Attorney General.
It is not a firal datermination that an NRC antitrust hearing must be held.
That decision is made by the Cornission after receipt of the Attorney General's advice-Thus the Commission, while removing itself from making the "significant changes" finding, would not be removed from subsequent consideration af an operating license antitrust review and, pcssi'ly, a o
hearing.
The Commission, which may ultimately adjucicate an appeal pertaining to the anti: rust operating license review, would also be relieved from having to make a finding of "significant cnanges" early in an cperating license proceeding.
This would insure :nat the Cem-mission would hear the appeal witnout any predispo-sition tcward the activities under scrutiny.
9 3.
The Staff's initial review and its informal contacts with the Department of Justice previce it with the factual basis to make a "significant enanges" dete rmi na ti o n.
Any determination by the Commission has been and wouic continue to :e based to 50 e extent en the Staff's reccamendation.
4.
In effect, the Staff already makes a det.erminaticn in those cases where it believes "signi#icant :hanges" have 00: occurred, by n : recuesting frem the C:.e-ission "significan: :hanges" ceterm.inati:ns. The :r::csec delegaticn gives the Staff the authority to :etermine ATTACHMENT C
4 that "significant changes" have occurred. Concomitantly, the revised OL review procedures provide for notifying the Commission ~whenever any determination on "significant changes" is made, including the situation where 3 request for a determination is made of the Staff by a third party.
5.
The proposed change would make NRC operating license antitrust review procedures parallel to the construction permit antitrust review procedures, particularly as to the Staff itself requesting advice from the Attorney General.
Cons:
1.
The proposed action would delegate authority for determining "significant changes" to the Staff. As stated above, the Ccmmission would retain the same authority over the OL revic, unct it has for the CP review, but would be delegating the triggering determination to request the Attorney General's advice.
2.
In Comanche Peak Steam Electric Statien, suora, the Commission deciced to maxe tne "significant changes" determination itself.
There, the Commission reasoned that this would "...[ex;edi te] the hearing process in order to reduce as far as possible any delay in.the licensing of the Comanche Peak facilities."
3.
The Staff would be a party to any operating license antitrust hearing in the event that such a hearing was deemed necessary.
Thus, it might be argued that the Staff's neutrality in making the prior "significant changes" determination would be offected.
S.
Prcocsed 0:eratina License Antitrust Review Procedures Currently, the Staff has informal internal :recedures which provide it with infor:2 icn to aid ir. de'.artir,-
ing whether "significant :hanges" ir a lice 1cae's activities have Occurred.
The pe mary Orccess for d
ATTACHMENT C
5 gathcring infor.atien for the preliminary NRC operating license antitrust review and for making sucn a determination is the review of the submittal by the applicant of information specified in Regulatory Guide 9.3.
Although applicants have voluntarily provided the information specified in Regulatory 1/
Guid 9.3, suomittal of sucn information is optional.-
Notice of receipt'of this operating license antitrust information is not published in the Federal Register, nor is tnere any reference to antitrust matters in the published notice of receipt of an operating license application covering health, safety and environmental matters.
The NRC learns of cotential antitrust problems at the operating licen! e stage through its analysis of Regulatory Guide 9.3,Mormation submitted by the apolicant, through its informal contacts with the Federal Energy Regulatory Commission (FERC), through intentional or fortuitous relay of information to MRC Staff frcm outside sour ce;; or through reports in trade publications or r ews mecia.
To increase the probability of receiving fall and reliable information ger.ane to.NRC's operating license antitrust review, to provide a forma", and consistent mechanism f:r obtaining ccmments from interested parties during the operating license review, and to foster the Commission's general policy of encouraging greater public participation in the licensing process, the Sta.ff has revised and proposes to implement procedures for operating license antitrust reviews.
The revised procedures are parallel to procedures currently used for constructic-permit antitrust reviews.
These revised procedures provide for the publication in the Federal Register and appropriate trade publications of a separate
" Notice of Receipt of Antitrust Information."
This notice will invite interested persons to suomit
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The question of wnether tne specified information in Regulatory Guide 9.3 should be inccrpcreted explicitly in NRC regulations is being namined by the Staf#.
ATTACHMENT C comments concerning antitrust matters to the NRC within 30 days of ;ublication.
Any such coments will be considered by NRC Staff during its conduct of the antitrust review.
The revised procedures also include provisions f:r Staff determinations of "significant changes" and for notification of the Comission and other apprcpriate carties, depending on the nature of the Staff's determination.
This action involves no new resource requirements.
Recomend' tion:
That the Cormission accrove the delegaticn of authority to the Staff (the Director, Office of Nuclear Reactor Regulation for reactors and the Director, Office of Nuclear Material Safety and Safeguards for production facilities) for determina icn of "sienificant changes" during operating license antitrust reviews as indicated in draft in Enclosure II.
Note that Staff will initiate augmented antitrust operating license review :rocedures at described in Enclosure I when and if the Ccmmission apprcves the proposed delegation of authority.
Note that no rulemaking is contemolatec for this action at this time, newever, in :ne near future conforming cnanges will t:e made to the regulatiens in 10 CFR Part 1, " Statement of Organi:ation and General Information."
Coordination:
The Office of the Executhe Legal Director concurs with this paper.
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Partid R. Dent:n, Direc cr Office of Nuclear Reactor
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Willi F J. Di cks, irector Office :f %ciear "a:erial Safety 1 Safeguarcs
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Draft Ceisga:icn of
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ATTACHMENT C
Commissioners' comments should be provided directly to the Office of the Secretar;,
by c.c.b. Friday, June 8,1979.
Commission Staff Office conments, if any, should te submitted to the Commissioner:
NLT June 4,1979, wi'5 an informaticr. ccpy to the Office of the Secretary.
If the paper is cf such a nature that it requires additional time for analytical review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected.
DISTRIBUTION Commissioners Commissior. Staff Offices Exec Dir for Ooerations Regional Offices ACRS Secretariat ATTACHMENT C
ENCLOSURE I OPERATING LICENSE ANTITRUST REVIEW PROCEDURES 1.
Upon docketing of an application for a facility operating license, the Office of Nuclear Reactor Regulation (NRR) or the Office of Nuclear Material Safety and Safeguards (NMSS), as apprcpriate, will cause to be published a " Notice of Receipt of Operating License Application and Request for Antitrust Information" in the Federal Register and in appropriate trade journals.
This Notice would invi te submittal to the NRC of comments or information concerning the antitrust aspects of the application to assist the NRC Staff in determining whether significant changes in the licensee's activities or proposed activities had occurred since the ccepletion cf the antitrust review at the ccnstruction permit stage, pursuant to Section 105c of the Atomic Energy Act cf 1954, as amended.
2.
Copies of the facility operating license application, including the antitrust information provided by the aoplicant under Regulatory Guide 9.3, will be transmitted to both the Office of the Executive Legal Director (CELD) and to the Antitrust and Indemni:y 3rouo of NRR (AIG) for review to determine whether tnere have been any sig-nificant changes since the ccmcletion of the antitrust review at the constructicn permit stage.
Each of these reviews will ake into account comments er infcreation received in res;cnse to the published Notice and also any infcrma:icn egarding the ap:lican:
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ATTACHMENT C
3.
Upon completion of its review, AIG will transmit the results to OELD together with a recommendation as to whether or not there have 1
been significant changes.
OELD will then complete its own review.
4.
If, as a result of their reviews, it is concluded that there have been no significant changes since the completien of the antitrust review at the construction permit stage, a document in the form of a finding will be prepared jointly by CELD and AIG for the signature of the appropriate Office Director (NRR or NMSS).
This document will set forth the bases for the finding.
Copies of this docament will be sent to the Ccemissien and to the NRR or NMSS iicensing project manager for the facility invcived.
C0 pies of this c cument will also be sent to nose persons provicing cccments or information in response to the Notice, anc to tne Washington and local public document rects.
5.
If, as a result of their reviews, it is concluded that significant changes have occurred since the completion of the antitrust review at the construction permit stage, a 000. men
'n :he #0r Of a finding will be pre;ared jointly by AIG and OELD for the signature of the appropriate Of# ice Direc:O r (NRR :r *:' DSS ).
This document will set forth the bases f;r the #incing.
This document together with a cooy of the a: plication anc :ne inf:rmation sa:mit:ac unrer Regulatory Guide 9.3 will be trars-d::et ::. e A ::rney General by ATTACHMENT C
OELD with a formal request for antitrust advice, pursuant to Section 105c(1) and (2) of the Act.
Copies of the Office Director's finding and the request addressed to the Attorney General will be transmitted to the Commission, the NRR or MMSS licensing project manager, those persons providing comments or information in response to the Notice, and to the Washington and local public document rooms.
6.
If a finding is made by an Office Director that there have been no significant changes since the completion of the antitrust review at the construction permit stage ano there is a subsequent request from a member of the public for a determination that significant changes have occurred, then the finding will be reevaluated by CELJ and AIG in light of any new information contained in the request.
If, as a result of the reevaluation, it is determined that there is no reasonaole basis for changing the Office Director's finding, then the Office Director shall deny the request, stating the reasons for the denial, and will so notify bo:h tne Commission and the requesting party.
Copies of the notification shall also be transmitted to the NRR or NM55 licensing project manager, and to the Washington and local public document rooms.
If, however, as a result c# the eevaluation, it is determined : hat there is a reasonable basis 'cr : hanging tne Cf# ice T ect:r's ATTACHMENT C
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finding in light of the new information contained in the reques;,
OELD shall so inform the Attorney General and formally request his antitrust advice, pursuant to Section 105c(1) and (2) of the Act.
Copies of the revised Office Director's finding along with copies of the license applicatien, the information submitted under Regula-tory Guide 9.3, and the information and request received from the member of the public shall be transmitted to the Attorney General.
Copies of the revised Office Director's finding and the request for advice addressed to the Attorney General will be transmitted to the Commission, the NRR or NMSS licensing project manager, the re-questing me:nber of the public, and to the Washington and local public dccument rooms.
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ATTACHfiENT C
ENCLCSURE II MEMORANDUM FOR:
Harold R. Denton, Director Office of Nuclear Reactor Regulation William J. Dircks, Director Office of Nuclear Material Safety and Safeguards FROM:'
Joseph M. Hendrie, Chairman
SUBJECT:
DELEGATION OF AUTHCRITY TO MAKE "SIGNIFICANT CHANGES" DETERMINATION FOR OPERATING LICENSE ANTITRUST REVIEW The Commission hereby delegates the authority to make the "significant changes" determination under Section 105c(2) of the Atomic Energy Act of 1954, as anended, 'l U.S.C.12135c(2), for the purpose of cbtainina the Attorney General's advice pursuant to Section 105(c)(1) of that Act to either the Director, Office of Nuclear Reactor Regulation (for reactors) or the Director, Nuclear Material Safety and Safeguards (for production facilities), as appropriata.
This delegation is mad 2 in connection witn the revised Operating License Antitrust Revicw Procedures (attached to thi; Memorandum) which shall centrol the method cf determining whetner there have been "significant changes" in the licensee's activities or proposed activities subsequent to the previous antitrust review by the Attorney General and the Ccmmission in connection with the ccr.struction permit.
Jcsech M.
'"e r c r i e ATTACHMENT C
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