ML19250E402
| ML19250E402 | |
| Person / Time | |
|---|---|
| Issue date: | 03/20/1981 |
| From: | Bickwit L NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML19240A177 | List: |
| References | |
| REF-10CFR9.7, TASK-RINV, TASK-SE SECY-81-182, NUDOCS 8103250377 | |
| Download: ML19250E402 (17) | |
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SECY-81-182 March 20, 1981 e
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Leonard Bickwit, Jr.
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General Counsel w
Subject:
DRAFT FEDERAL REGISTER NOTICE NNG APPENDIX B TO PART 2 AS IT APPLIES TO OPERATING LICENSES
Purpose:
To obtain Comr.9ission approval of a draft Federal Register notice announcing th a t th e Commission is considering amending Appendix B and soliciting comments from the public.
Discussion:
The draft Federal Register notice proposes two options for modifying Appendix B as it applies to operating license decisions.
Option A provides for expedited Commission review of operating licent decisions before granting effectiveness.
Option B provides for immediate effectiveness of Operauing license decisions with concurrent Appendix B review.
The notice establishes a 30-day period for public comment and includes appropriate regulatory language for each of die options.
Recommendation:
Approval of the proposed Federal Register Notice.
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Leonard Bickwit, Jr.
General Counsel Actachment:
Oraft Federal Register notice SECY t10TE:
This paper is identical CONTACT:
to advance copies circulated by OGC Richard A.
Parrish, OGC to Commission office; on March 19, 1931.
634-3224
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2 Commissioners' commen's should be provided directly to the Office of the Secretary as soon as possible per the request of OGC.
DISTRIBUTION:
Commissioners Commissior. Staff Offices Exec Dir for Operations ACRS ASLBP ASLAP Secretariat
Title 10--Energy CHAPTER l--NUCLEAR REGULATORY COMMISSION PART 2--RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEFDINGS Commission Review Procedures for Power Reactor Operating Licenses AGENCY:
U.S.
Nuclear Regulatory Commission ACTION:
Proposed Rule
SUMMARY
The Nuclear Regulatory Commission is considering amending its rules of oractice to permit more immediate operation of plants which have received favorable Atomic Safety and Licensing Board initial decisions on operating licenses for fuel loading and low power testing or full power operating licenses.
Th e Commission has determined that, in the case of operating licenses, the ful? fre-licensing review contemplated by Appendix B to Part 2 of its rules of practice is no longer necessary to protect the public health and safety.
These proposed amendments are designed to decrease the time between the completion of construction and the operation of nuclear power reactors when the applicable safety and environmental reviews and evidentiary hearings have been completed.
DATES:
Comment period expires (30 days after publication in the Federal Register).
ADDRESSES:
All interested persons who desire to submit comments in connection with the proposed amendments sh ould send them to the Secretary of the Commission, U.S.
Nuclear Regulatory Commission, W ashington,
D.C.
20555.
Attention:
Docketing and Service Branch.
Copies of comments on the proposed amendments may be examined at the Commission's Public Document Room at 1717 9 Street, ?!.W.,
W a sh ing ton,
D.C.
2 FOR FURTHER INFORMATION CONTACT:
Martin G. Malsch, Esq.,
Deputy General Counsel, U.S.
Nuclear Regulatory Commission, Wash ing to n,
D.C. 20555 (202 634-1465).
SUPPLEMENTARY INFORMATION:
Appendix B to Part 2 was adopted as an interim response to the Three Mile Islanc (TMI) accident in order to increase conmission supervision of adjudicatory licensing decisions involving pcwer reactors.
Under Appendix B, initial decisions of the Atomic Safety and Licensing Board in f avor of granting nuclear power reacter construction permits and operating licenses are denied effectiveness pending Atomic Safety and Licensing Appeal Board and Commission determination of whether permit or license issuance should be stayed per. ling further review.
The review process contained in Appendix B nominally postpones th e issuance of operating licenses for close to three months beyond a favorable Licensing Board decision.
Following the Three Mile Island accident, the Commission reassigned most of its staf f who had been reviewing applications seeking authorization to construct or operate nuclear power reactors to other tasks, such as investigating the cause of the accident and developing new regulations based on the lessons learned.
As a direct result of these reassignments it is apparent th a t if th e licensing review process is not altered, construction of a nunber of plants will be finished pricir to the completion of the Appendix
3 B review.
The potential cost impact of this Appendix B process on utilities and, ultimately,, ratepayers could be as high as 100 million dollars per plant.
The Commission has now determined that substantive licensing requirements are sufficiently settled in light of the numerous studies of TMI and regulatory actions taken in response thereto that th e full Appendix B reviews of operating license decisions are no longer necessary.1/
Th ere f o re, in an effort to avoid unwarranted and expensive delays, the Commission hereby proposes to adopt one of two alternative modifications to Appendix B as it applies to operating license decisions.
Summarv of Accendix B Procedures As it presently operates, Appendix B provides for both Appeal Board and Commission review of Licensing Board decisions in favor of granting operating licenses.
Issuance of such licenses is thereby postponed for a period of about 60 days for Appeal Board review and a further period of about 20 days for the Commission 1/
The continued application of Appendix B to construction permit decisions will be considered by the Commission in a separate rule-making procee6ing.
See 45 Fed. Reg. 34279 (May 22, 1980).
4 review.
The Commission and Appeal Board reviews focus on possible reasons for staying the ef fectiveness of the Licensing Board decision pending further, more detailed review of Ele record.
In instances where a stay is not imposed, th e license will issue ordinarily within 80 days of the Licensing Board decision.
Extensions of these time periods are available to the Appeal Board and the Commission, as necessary.
Appendix B replaced a system whereby a license generally issued within 10 days of a favorable Licensing Board decision.
Ootions for Changing Appendix B The two options which are being considered for changing the present system are as follows:
OPTION A - Expedited Commission Review This option would entail expedited Commission review of Licensing Board decisions for the purpose of considering
'l stay before allowir 3 the license to be issued.
This Commission review won d ordinarily be completed within 10 days of a fuel loading / low power testing decision and within 30 days of a full power operating license decision and would be performed regardless of whether any party requested a stay.
In the event th at the s e time limits are not met by the Commission, the Commission would state the reasons for its further consideration
5 and the time required for a s' y decision, and the Licensing Board's initial decision would be considered stayed pending the Commi -ion 's stay ruling.
The Appeal Board would not become involved in this expedited stay consideration and the matter would ordinarily be decided by the Commission without the need for filings f rom the parties.
It is intended that Appeal Board review of any stay applications filed pursuant to 10 CFR 2.788 will begin concurrently with this Commission review.
However, as noted, issuance of a license will no longer await an Appeal Board decision.
Of course, an Appeal Board could impose i stay of a license which the Commission had passed favorably upon, in which case operation of the plant, permitted by the Commission, would cease pending resolution of the issue that prompted the stay This scenario is made possible by the f act that Appeal Board review would have the benefit of filings from the parties and would proceed under the traditional stay criteria contained in 10 CFR 2.788, while the Commission 's stay review wou: d focus narrowly on significant TMI-rela +,ed oolicy 10 sues identified by the commission from d'es own review of the case.
6 Depending upon the type of license being reviewed, Option A would provide a time savings of 50 or 70 days over Appendix B in the normal case where a stay is not granted.
Of course, decision times will vary under either system depending upon the complexity of the case.
OPTION B Granting Immediate Ef fectiveness with Concurrent Appeal Board and Commiraion Review This option would allow favorable Licensing Board decisions to become immediately effective.
The license would then issue, pursuant to 10 CFR 2.764, within 10 days of the initial decision.
Appeal Board an? Commission stay review would follow under current Appendix B procedures.
The potential time savings under this option would be the 70 day difference between Appendix B procedures and immediate effectiveness (license issued within 10 days of favorable decision).
Again, this period could vary depending upon the complexity of the case at issue.
Under either option, the standard Appeal Board review of the merits of Licensing Board decisions, as opposed to the stay determinations at issue here, would continue as before.
Th e Commission wishes to emphasize th at the proposed modifications of
7 Appendix B are not intended to allow any reduction in the overall quality of NRC adjudicatory proceedings.
The changes, if adopted, would be applicable to ongoing NRC adjudications.
REGULATORY FLEXIBILITY ACT:
In accordance with the Regulatory Flexibility Act cf 1980, 5 U.S.C.
605(b), the Commission hereby certifies that this rule will not, if promulgated, have a significant economic inpact on a substantial number of small entities.
This rule affects the Commission 's rules of practice and procedures by permitting expedition of the licensing process.
PROPOSED REGULATORY CHANGES :
Pursuant to the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and cection 553 of the United States Code, notice is hereby given that cdoption of the following amendments to 10 CFR Part 2 are contemplated.
8 Option A 1.
T' e Appendix B to Part 2 is amended by revising the first paragraph in Section 1 and the entire text of Section 2 and Section 3 to read as follows:
Appendix B - Suspension of 10 CFR S2.764 and Statement of Policy on Conduct of Adjudicatory Proceedings 1.
Atomic Safety and Licensing Boards Atomic Safety and Licensing Boards shall hear and decide all issues that come before them, indicating in their decisions the type of licensing action, if any, which their decision would otherwise authorize.
The Boards' decisions concerning construction permits shall not become effective until the appropriate Appeal Board and Commission actions outlined below in paragraphs 2 and 3 have taken place.
The Board's decisions concerning fuel loading and low-power testing operating licenses or full-power operating licenses shall not Lacome effective until the appro-priate commission actions outlined below in paragraph 3 have taken place.
2.
Atomic Safety and Licensing Appeal Boards Within sixty days of the service o any Licen sing r
Board decision that would otherwise authorize issuance of a construction permit, the Appeal Board shall decide any stay motions that are timely filed. 1/
For the purpose of this policy, a " stay" motion is 1/
Such motions shall be filed as provided by 10 CFR 2.788.
No request need be filed with the Licensing Beard prior to filing with the Appeal Board.
Cf.
Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-338, 4 NRC 10 (1976).
The sixty-day period has been selected in recog-nition of two facts:
first, allowing time for service by mail, close to thirty days may elapse before the Appeal Board has all the stay papers before it; second, the Appeal Board may find it necessary to hold oral argument.
9 one that seeks to defer the effectiveness of a Licensing Board decision beyond the period necessary for the Appeal Board and Commission action described herein.
If no stay papers are filed, the Appeal Board shall, within the same time period (or earlier if po ssible ), analyze the record and constructicn permit decision below on its own motion and decide whether a stay is warranted.
It shall not, however, decide that a stay is warranted without giving the affected parties an opportunity to be heard.
In deciding these stay questions, the Appeal Board shall employ the procedures set out. in 10 CFR 2.788.
However, in addition to the factor s set out in 10 CPR 2.788(e), the Board will give particular atten-tion to whether issuance of the permit prior to full administrative review may:
(1) crecto ncvel safety or environtaental issues in light of the Three Mile Island accident; or (2) prejudice review of signifi-cant safety or environmental issues.
In addition to deciding the stay issue, the Appeal Board will in form the Commission if it believes that the case raises issues on which prompt Commission policy guidance, partic.ularly guidance en possible changes to present Commission regulations and policies, would advance the Board's appellate review.
If the Appeal Board is unable co issue a decision within the sixty-day period, it should explain the cause of the delay to tne Commission.
The Commission shall thereupon either allow the Appeal Board the additional time necessary to complete its task or take other appro-priate action, including taking the matter over itself.
The running of the sixty-day period shall not operate to make the Licensing Board's decision effective.
Unless otherwise c rdered by the Commission, the Appeal Board will conduct its normal appellate review of the Licensing Board decision af ter it has issued its decision on any stay request.
3.
Commission Construction Permits Reserving to itself the right to step in at any earlier stage of the proceeding, including the period prior to issuance of the Licensing Board's initial decision, the Commission shall, promptly
10 upon receipt of the Appeal Board decision on whether the effectiveness of a Licensing Board construction permit decision should be further delayed, review the matter on ita own motion,
applying the same criteria.
The Commission will seek to issue a decision in each construction permit case within 20 days of receipt of the Appeal Board's stay decision.
If the Commission does not act finally within that t ime, it will state the reason for its fur ther consideration and indicate that time it anticipates will be required to reach its decision.
In such an event, if the Appeal Board has not stayed the Licensing Board's decision, the initial decision will be considered stayed pending the Commission's decision.
In announcing the result of its review of any Appen! Board stay decision, the Commission may allow the proceeding to run its ordinary course or give whatever instructions as to the future handling of the proceeding it deems appropriate (for example, it may direct the Appeal Board to review the merits of particular issues in expedited fashion; furnish policy guidance with respect to particular issues; or decide to review the merits of particular issues itself, bypassing the Appeal Board).
Furthermore, the Commission may in a particular case determine that compliance with existing regulations and policies may no longer be suf ficient to warrant approval of a license application and may alter those regula-tions and policies.
Operating Licenses Reserving the right to step in at an earlier t ime, the Commission shall, promptly upon receipt of the Licensing Board decision authorizing issu-ance of an operating license, review the matter on its own motion to determine whether to stay the effectiveness of the decision.
An operating license decision will be stayed by the Commission if it determines that operation would prejudice correct resolution of serious Three Mile Island accident-related safety issues.
11 The parties shall have no right to file pleadings with the Commission with regard to this Commission review unless requested to do so by the Commission, except that no stay shall be issued without giving the affected parties an opportunity to be heard.
The Commission will seek to issue a decision regarding each fuel loading and low power testing license within 10 days of receipt of the Licensing Board's decision and regarding each full power operating license within 30 days of receipt of the Licensing Board's decision.
If the Commi ision does not act finally within these time periods, it will state the reason for its further consideration and indicate that time it anticipates will be required to reach its decision.
In such an event, if the Appeal Board has not stayed the Licensing Board's decision, 2/ the initial decision will be considered stayed pending the Commission's decision.
In announcing a stay decision, the Commission may allow the proceeding to run its ordinary course or give whatever instructions as to the future handling of the proceeding it deems appropriate (for example, it may direct the Appeal Board to review the merits of particular issues in expedited fashion; furnish policy guidance with respect to particular issues; or decide to review the merits of particular issues itself, bypassing the Appeal Board).
Furthermore, the Commission may in a particular case determine that compliance with existing regulations and policies may no longer be sufficient to warrant approval of a license application and may alter those regulations and policies.
2/
A Commission stay decision under this appendix is without prejudice to Appeal Bor.rd decisions or stay requests filed under 10 CFR 2.788.
12 B.
Ootion B 1.
The Appendix B to Part 2 is amended by revising the first paragraph in Section 1 and the entire text of Section 2 and Section 3 to read as follows:
Appendix B-Suspension of 10 CFR S2.764 with Respect to Construction Permits and Statement of Policy on Conduct of Adjudicatory Proceedings 1.
Atomic Safety and Licensing Boards Atomic Safety and Licensing Boards shall hear and decide all issue.a that come before th em, indicating in their decisions the type of licensing action, if any, which taeir decision would otherwise authoriz e.
Thn Boards' decisions concerning construction permits shall not become ef fective until the apprcpriate Appeal Board and Conmission actions outlined below have taken place.
The Board's decisions concerning fuel loading and low-power testing licenses or full power operating licenses shall become effective immediately pursuant to 10 CFR 2.764, subject to possible stays issued by the Commission or Appeal Board.
2.
Atomic Safety and Licensing Appeal Boards Within sixty days of the service of any Licensing Board decision that would otherwise authorize licensing action, the Appeal Board shall decide any stay moticas that are timely filed. 1/
For the purpose of the application of this policy to construction permit decisions, a " stay" motion is one that seeks to defer th-effectiveness of a Licensing Board decision beyond the period necessary for the Appeal Board and Commission action described herein.
A stay motion relating to an operating 1/
Such motions shall be filed as provided by 10 CFR 2.788.
No request need be filed with the Licensing Board prior to filing with the Appeal Board. Cf. Public Service Company of New Hampshire, (Seabrook Station, Units 1 and 2), ALAB-338, 4 NRC 10 (1976).
The sixty-day period has been selected in recognition of two facts: first, allowing tine for service by mail, close to thirty days may elapse before the Appeal Board has all the stay papers before it; second, th e Appeal Board may find it necessary to hold oral argument.
13 license decision is one th at seeks to defer or withdraw the immediate effectiveness of a Licensing Board decision pursuant to 10 CPR 2.788.
If no stay papers are filed, the Appeal Board shall, within the same time period (or earlier if possible),
analyze the record and decision below on its own motion and decide whether a stay is warranted.
It shall not, however, decide that a stay is warranted without giving the af fected parties an opportunity to be heard.
In deciding these stay questions, the Appeal Board shall employ the procedures set out in 10 CFR 2.788.
- However, in addition to the factors set out in 10 CFR 2.788(e), the Board will give particular attention to whether issuance of the license or permit prior to full administrative review may:
(1)
Create novel safety or environmental issues in light of the Three Mile Island accident, or (2) prejudice review of significant safety or environmental issues.
In addition to deciding the stay issue, the Appeal Board will inform the Commission if it believes that the case raises issues on which prompt Commission policy guidance, particularly guidance on possible changes to present Commission regulations and policies, would advance the Board's appellate review.
If the Appeal Board is unable to issue a decision within the sixty-day period, it should explain the cause of the delay to the Commission.
The Commission shall thereupon either allow the Appeal Board the addi-tional time necessary to complete its task or take other appropriate action, including taking the matter over itself.
An operating license decision will be stayed, subject to any further Commission review, if the Appeal Board stays the Licensing Board 's deci-sion.
The running of the sixty-day period shall not operate to make the Licensing Board 's construction permit decision effective, nor shall it operate to stay the effectiveness of the Licensing Board's operating license decisions.
Unless otherwise ordered by the Commission, the Appeal Board will conduct its normal appellate review of the Licensing Board decision af ter it has issued its decision on any ctay request.
14 3.
Commisrion Reserving to itself the right to step in at any earlier stage of the proceeding, including the period prior to issuance of the Licensing Board's ini tial decision, the Commission shall, promptly upon receipt of the Appeal Board decision on whether the ef fective-ness of a Licensing Board construction permit deci-sion should be further delayed or whether the ef-fectiveness of a Licensing Board operating license decision should be stayed, review the matter on its own motion.
The parties shall have no right to file pleadings with the Commission with regard to the Appeal Board's stay decision unless requested to do so.
The Commission will seek to issue a decision in each case within 20 days of receipt of the Appeal Board 's deci tons.
If it does not act finally within that time, it will state the reacon for its further consideration and indicate that time it anticipates will be required to reach its decision.
In such an event, if the Appeal Board has not stayed the Li-censing Board's decision, initial construction permit decisions will be considered stayed pending the Commission's decision and initial operating license decisions will be considered ef fective pending the Commission's decision.
In announcing the result of its review of any Appeal Board stay decision, the Commission may allow the proceeding to run it s ordinary course or give whatever instructions as to the future handling of the proceeding it deems appropriate (for example, it may direct the Appeal Board to review the merits of particular issues in expedited fashion; furnish policy guidance with respecu to particular issues; or decide to review the merits of particular issues itself, bypassing the Appeal Board ).
Furthermore, the Commission may in a particular case determine that compliance with existing regulations and policies may no longer be sufficient to warrant approval of a license application and may alter those regulations and policies.
15 (Sec. 161, Pub.
L.83-703, 68 Stat. 948 (42 U.S.C.
2201);
sec. 201, as amended, Pub.
L.93-438, 88 Stat. 1243, Pub.
L.
94-79, 89 Stat. 413 (42 U.S.C.
5841))
Dated at Washington, D.C.,
this day of March, 1981.
For the Nuclear Regulatory Commission, Samuel J.
- Chilk, Secretary of the Commission