ML19262A705
| ML19262A705 | |
| Person / Time | |
|---|---|
| Site: | 05000516, Skagit, Black Fox |
| Issue date: | 11/05/1979 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| Shared Package | |
| ML19262A704 | List: |
| References | |
| 10CFR2.764, NUDOCS 7912100348 | |
| Download: ML19262A705 (10) | |
Text
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Title 10 - Energy CHAPTER I - U.S.
NUCLEAR REGULATORY COM'!ISSION RULES OF PRACTICE FOR DOMESTIC LICENSING PART 2 PROCEEDINGS Modified Adjudicatory Procedures AGENCY:
U.S.
Nuclear Regulatory Commission ACTION:
Suspension of 10 CFR 2.764 and Statement of Policy en Conduct of Adjudicatory Proceedings
SUMMARY
As a result of the Three Mile Island accident, the Conmission has decided to make interim modifications to the procedures by which it supervises and reviews adjudicatory licensing decisions involving power reactors.
It has decided to suspend until further notice 10 CFR 2.764 which is its rule of practice on issuance of licenses after adjudicatory decisions.1/
Furthercore, it has specified the procedures by which new licenses, permits and authorizations may be issued.
As provided in the Interia Statement on Policy and Procedure, 44 Fed. Rec. 53559
'Oc cber 10, 1979),
this action will not affect non-adjudicatory proceedings er other adjudicatory matters including enforcement and license amendment proceedings, appellate decisions and partial initial decisions not authoricing issuance of new licenses or permits.
This suspension of 10 CFR S 2.764 and the related statement of policy deal with Commission Rules of Practice. For that reason, and
,e The Contission currently has underway a study of whether, apart fre.m this temporary measure, the inmediate ef f ectiveness rule shculd be retained, modified, or abolished.
Nothing in today's action is intended to prejudice the outcome of that study.
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because prior notice and comment and delayed effectiveness would further delay adjudicatory decisions from being rendered and from being addressed by the Comcission, and so would be contrary to the public interest, this suspension and statement of policy shall be effective without prior public notice and comment and good cause exists for making the suspension and statement effec-tive upon publication.
However, the Commission will consider any public comments on these modified procedures which are filed with the Secretary of the Commission within 30 days of publication of this notice.
The actions described herein constitute the Commission's final acticn on the petitions it has received in the Black Fox and Skagit proceedings.
EFFICTIVI: DATE:
Noverrber 9,1979 o
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SUPPLEMENTARY INFORMATION:
The Commission's Interim Statement of Policy and Procedure, 44 Fed. Rec. 58559 (October 10, 1979), indicated that the Commission would subsequently decide the procedures by which it would exercise increased supervision over adjudicatory licensing deci-sions in the af termath of the investigations of the Three Mile Island accident.
That Statement also indicated that new con-rtruction permits, limited work authorizations and operating licenses for prwer reactors would be issued "only after ac-icn of the Commission itself."
The Commission has now determined that, until further notice, adjudicatory proceedings will be conducted as described below.
The Commission has adopted this approach because it achieves the objective of increased Commission supervision of licensing actions while (1) avoid ng undue delay and duplication of effort by adjudicators and parties; and (2) allowing the Cemnission
.aximum flexibility in terms of deciding whether, in light of its other responsibilities, particular proceedings or issues warrant
_ts early intercession or can appropriately be left te the ordinary adjudicatory processes (subject, of course, to ultimate Ocm-mission review at the conclusion of the proceeding).
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1.
Atomic,3afety and Licensing Boards Atomic Safety and Licensi q Boards shall hear and decide all issues that ccme before them, indicating in their decisions the type cf licensing action, if any, which their decision would otherwise authorize. The Boards' decisions shall not become effective until the Appeal Board and Commission actions outlined below have taken place.
In reaching their decisions the Boards should interpret existing regulations and regulatory policies with due consideration to the inplications for those regulations and policies of the Ihree Mile Island accident.
In this regard it should be understood that as a result of analyses still under way the Commission may change its present regulations and regulatory policies in important respects and thus compliance with existing regulations may turn out tc no 1:nger warrant approval of a license application.
As provided in
,caragra_h 3 helow, in addition to taking generic rulemaking a::icns, the Conmission will be providing case-by-case guidance en changes in regulatory policies in conducting its reviews in ad udicatory proceedings.
The Boards shall, in turn, apply these revised regulations and policies in cases then pending before ther o the extent that they are applicable.
The Cc.nmission expects the Licensing Boards to pay particular a tention in their decisions to analyzing the evidence on those safety and ervironmsntal isr;es arising under applicable Commission
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regulations and policies which the Boards believe present serious, close questions and which the Boards believe may be crucial to whether a license should become effective before full appellate review is completed.
Furthermore, the Boards should identify any aspects of the case which, in their judgment, present issues on which prompt Commission policy guidance is called for.
The Boards may request the assistance of the parties in identifying such policy issues but, absent specific Commission directive, such policy issues shall not be the subject of discovery, examin-ation, or cross-examination.
2.
Atomic Safety and Licensin Acceal Boards Within sixty days of the service of any Licensing Board decision that would otherwise authorize licensing acticn, th. Appeal Board shall decide any stay motions tnat are timely filed.2/
For the purpose of this policy, a " stay" motion is one that seeks to defer the ef fectiveness of a Licensing ? card fecisica beyond the period necessary for the Appeal Board and Commission action described herein.
If no stay papers ara filef, the Appeal Board 2/
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 Acceal Board.
Cf. Public Service Comcanv of New Hamoshire, (Seabrook Station, Units 1 and 2), AL AB-3 3 8, 4 NRC 10 (1976).
The sixty-day period has been selected in recognition of two facts.
First, allowing time for service by mail, close to thirty days ma" elapse before the Appeal Board has all the stay papers befcte it.
Second, the Appeal Board may find it necessary to held oral argument.
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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 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 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 adrinistrative review may:
(1) create novel safety or environmental issues in light of the Three Mile Island acci-dent; or (2) prejudice review of significant safety or envircamental 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 Com-mission.
The Comnission shall thereupon either allow the Appeal Board the additional time necessary to complete its task or take other appropriate action, including taking the matter over it-self.
The runninc of the sixty-day period shall not operate to make the Licensing Bea-d's decision effective.
Unless otherwise O
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3.
Commission Reserving to itself the right to step in at any earlier stage of
'he proceeding, including the period prior to issuance of the Licensing Board's initial decision, L.le Commission shall, promptly upon recaipt of the Appeal Board decision on whether the effec-tivsness of a Licensing Board decision should be further delayed, review the r.a ter on its own motion.
The parties shall have no right to file pleadings with the Commission with regard to the Appeal 3 card's stay decision unless requested to do so.
The Comnission vill seek to issue a decision in each case within 20 days cf receipt of the \\ppeal Board's decisions.
If it does
.o; act fina11/ within that time, it will state the reason for its fur:her casideration and indicate the time it anticipates will :s recuired to reach its decision.
In such an event, if the Appeal Board has not stayed the Licensing Board's decision, the initial de:ision will be considered stayed pending the Conmission's dscision.
In sn.ouncin: the result of its review of any Appeal Board stay dec;sion, the 00nmissicn may allow the proceeding to run its c rd ina r-Ocarse or give whatever instructions as to the future 1523 ulu
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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 par-ticular issues itself, bypassing the Appeal Scard).
Furthermore, the Commission may in a particular case determine that compliance
'with existing regulations and policies.ay no longer be suffi-cient to warrant approval of a license application and may alter those regulations and policies.
4.
Acolication of Procedures The above procedures apply cnly to matters considered in adjudica-tory proceedings for the issuance of nuclear power reactor con-struction permits (including limited work authorizations) and operating licenses.
They do not govern the issuance of an operat-ing license (a) where no formal adjudicatory proceeding has been conducted on the merits of the application for the license or (b) to the extent that some of the matters :ensidered ir the course of the staff review of the operating license application have been neither placed in issue before nor deternined by the Licens-ing Board or Appeal Board in the formal adjudicatory proceeding which was conducted on the application.
Further, these procedures will not apply to appellate decisions in cases where a complete initial decision has been issuad by a Licensing Boarf before the effective date of this Statement of Policy, er to partial initial decisions not authorizing issuance of new pernits er licenses.
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-9 When no formal adjudicatery proceeding has been c nducted on an application for an operating license for a power reactor, and insofar as issues have not been placed in controversy er detennined by the Licensing Board or Appeal Board in a formal adjudicatory proceeding on such an application, the Com.nission will informally review the recoqmendations of its staff on license
. issuance and any such license will be issued only af ter action of the Commission itself. In ccnducting such an informal review, there vill be due regard for rights to a hearing as provided unter present law.
Pursuant to the Ato-ic Energy Act of 1954, as amer.ded, the Energy Reorganization Act of 1974, as amended and Sections 552 and 553 cf Title 5 of the United States Code, the fcilowir.g amendmerts to Title 10 Chapter 1, Code of Federal Reculations, Part 2, are published as a document subject to codification.
1.
Section 2 754 of 10 C.:R Part 2 is amended by adding a footnote 1 at the end thereof to read as # ll:ws.
"The tenp;rary suspension of this rule in certain proceedirgs and related ma ters are addressed in Appendix B to this part."
2.
10 CFR Part 2 is amented by adcing an Appendix B at the end thereof to read as follows:
"Appencix B - Suscension of 1C CFR 3 2.764 and Statement of Policy on Conduct of Adjudicatory Proceedings".
(Sec.151, Pub. Law 83-7C3, 58 Stat. 948 (t2 U.S.C. 2201); sec. 201, as amended, Public Law 93-423, 85 Stat.1243, Public Law 9a-79, 89 Stat. 413 1523 u/<
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10 (42 L'.S.C. 5841) }.
5 6 day or Novemeer 1979.
Catec at Washir.gton, D. C.
this FOR THE NUCLEAR REGULATORY COMMISSION DJJ
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SAMUEL J. CHILq Secretary of thd Commission e