ML19273B242
| ML19273B242 | |
| Person / Time | |
|---|---|
| Issue date: | 03/14/1979 |
| From: | Bickwit L NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Ahearne J, Bradford P, Gilinsky V, Hendrie J, Kennedy R NRC COMMISSION (OCM) |
| References | |
| NUDOCS 7904060018 | |
| Download: ML19273B242 (21) | |
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4 UNITED STATFS
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NUCLEAR REGULATORY COMMISSION h, ) 21 f
W ASHINGTON, D. C. 20555 W p.. f
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March 14, 1979
?EMORANDUM FOR:
Chairman Hendrie Commissioner Gilinsky Conmissioner Kennedy Conm.issioner Bradford Conmissioner Ahearne bLeonardBickwit, Jr.,
General Counsel FROM:
SUBJECT:
DRAFT SITING AND LICENSING LEGISLATION Attache' 4s our latest draft of a possible Commission-sponsored siting ald licensing proposal.
While some of it will recuire additional redrafting, we believe it is in such form as to provide a reasonable basis for Conmission discussion.
ELD has reviewed most of the sections.
Time has not permitted us to have the benefit of their review on some.
Attachment:
Draft Bill ec:
OPE SECY
Contact:
Peter G.
Crane 634-3288 79040600/8
A BILL Co amend the Atomic Energy Act of 1954 to permit determinations on sites for prcduction and utilization facilities, and for other purposes.
Ee it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that this Act may be cited as the " Nuclear Regulatory Reform Act of 1979".
Sec.
2.
Findings and Purposes. --
(a)
The Con 5ress, recognizing that a clear and coordinated energy policy consistent with sound safety and environmental controls must include an effective licensing process for nuclear power reactors, finds and declares that:
(1) interstate commerce is substantially affected by the siting, construction, and operation of nuclear power reactors; (2) the Nuclear Regulatory Commission should continue to exercise its independent statutory responsibilities to protect the public health and safety and the common defense and security, taking into account that absolute safety is an unattainable goal for any energy source, that adequate protection to the
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health and safety of the public, in accordance with high standards established by the Commission, is the paramount consideration, and that cost is a factor to be considered in evaluating additional reouirenents beyond those necessary to provide such protection; (3) the states have an essential role to fulfill in making determinations with respect to the siting and licensing of nuclear pcwer reacters, and cooperation and coordination between Federal and State agencies should be enhanced;
[(4) the national interest in the timely completion of environmental and other reviews and determinations warrants that Federal exercise of the authority to make these determi-nations be coordinated by the Nuclear Regulatory Commission;]
[(5) the standardization of nuclear power plant designs can enhance safety and the more efficient use of both private and public resources;]
(6)~
early Commission decisions on the acceptability of potential sites for nuclear power reactors, even before a
'particular power plant has been proposed for the particular
. site, can. facilitate advance planning by States and utilities and permit meaningful public participation early in the planning process, when it can be most effective; and
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'(7) public funding of participants in Commission proceedings, where those participants' ability to take part is limited by financial considerations, can help contribute to a full and fair determination of issues in those proceedings.
(b)
The purposes of this Act are:
(1) to improve the effectiveness of the nuclear power reactor licensing process, consistent with sound environmental, safety and safeguards principles; (2) to provide for early Commission determinations on site suitability, to facilitate advance planning, increase the efficiency of the licensing process, and permit early and effective public participation in siting determinations; (3) to provide incentives for earl;' submission of final designs for nuclear power reactors, licluding standardized designs, by authorizing in such circumstances the issuance of combined construction permits and operating licenses; (4) to permit more effective utilization of resources by the Advisory Committee on Reactor Safeguards;
[(5) to provide for a more effective allocation of nuclear power reactor review responsibilities and for cooperation and
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- ocrdination at the Federal level;]
'6) to provide that hearings on app 2ications to construct and to operate production and utilization facilities shall be
" eld when requested by any person whose interest may be affected;
's7) to authorize public funding of qualified participants in Commission proceedings, and other purposes.
Sec. 3 Section 192 of the Atomic Energy Act of 1954 is amended to read as follows:
"Sec. 192.
EARLY SITE APPROVAL OF UTILIZATION AND PRODUCTION FACILITIES. --
a.
Any person may file with the Commission an application for approval of a site for one or more utilization or production facilities, notwithstanding the fact that no application for a construction permit or a combined construction permit and cperating license has beer filed with the Commission.
Each such. site permit application shall be in writing and shall specifically state such information as the Commission, by rule or regulation, may determine to be necessary to decide the suit-ability of the site for its 11. ; ended purpose.
The Commission, on the basis of such siting criteria and other requirements as it may establish by rule, regulation, or order, may issue the site permit, refuse to issue the site permit, or grant the site
5 permit with such conditions as it deems appropriate.
The Commission shall, by rule or regulation, prescribe the period or periods during which site permits issued pursuant to this subsection shall be valid.
Except for good cause shown, the period shall not exceed ten years.
Nothing in this subsection shall preclude a determination that particular aspects of the site are suitable for its intended purpose.
[b.
Unless otherwise ordered by the Commission or the State in which the site is located, any applicant for a con-struction permit or a combined construction permit and operating license for a utilization or production facility to be located on a site approved pursuant to subsection a. may prepare the approved site for construction and perform such limited con-struction activities at the site as the Commission may deter-mine to be permissible by rule or regulation, upon prior written notice to the Commission and to the State and publica-t$ on twice in major newspapers serving the affected area.
Such activities shall be conducted at the risk of the applicant and shall be subj ect to modification or revocation by the Com-mission at any time.
Safety-related construction activities shall not proceed beyond a one-year period unless the Commission extends such period upon good cause shown.
Nothing in this sub-section shall relieve any applicant from complying with any
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provisions of State law applicable to such site preparation or limited construction activities."]
Sec.
4.
Section 185 of the Atomic Energy Act of 1954 is amended to read as follows:
"Sec. 185.
CONSTRUCTION PERMITS AND OPERATING LICENSES. --
a.
All applicants for licenses to construct or modify production or utilization facilities shall be initially granted a construction permit, if the application is otherwise acceptable to the Commission.
The construction permit shall state the earliest and latest dates for completion of the construction or modification.
Unless construction or modifi-cation is completed by the stated date, the construction permit shall expire, and all rights thereunder shall be forfeited, unless the Commission extends the completion date, upon good cause shown.
Upon completion of the con-struction or modification, and upon filing of any additional information needed to bring the original application up to date, and upon finding tha+ one facility authorized has been constructed and will be sperated in conformity with the application as amended and in conformity with the provisions of this Act and the rules and regulations of the Commission,
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and in the absence of any good cause being shown to the Com--
mission why granting a license would not comply with the provisions of this Act, the Co:anission shall thereupon issue a license to the applicant.
For all other purposes of this Act, a construction permit is deemed to be a ' license'.
b.
Notwithstanding any other provision of this section, the Commission may issue a combined construction permit and operating license for a thermal neutron power generation facility to the applicant, if the application contains sufficient information to support issuance of both a construc-tion permit and operating license in accordance with the Commission's rules and regulations and to enable the Commis-sicn to make the determinations relating to the common defense and security and the public health and safety required by sections 103 and 182."
[Sec. 5 The Atomic Energy Act of 1954 is amended by adding a new section 195 to read as follows:
"Sec. 195 FEDERAL COORDINATION. --
a.
With respect to any application for a site permit, for approval of a standardised facility design, for a construction permit and/or operating license, or for a manufacturing license, the Commission shall establish a schedule for the conduct and completion of all required Commission reviews and decisions.
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The Ccnmission is authorized to cooperate with other agencies with review and/or decisionmaking authority regarding the siting, licensing, construction, or operation of nuclear power reactor facilities in order to eliminate duplication of effort, estab21sh a common data base for similar reviews and decisions, and assure timely decisions.
After consultation with the interested agencies, the Commission shall establish target dates con-sistent with the Commission schedule for completion of agency reviews and' decisions.
All Commission cooperative efforts, including establishment of schedules and target dates, shall be accomplished in a manner consistent with the statutory obligations of all Federal agencies, and the Ccanission shall have no authority to require any agency 'to reach a particular decision on the merits of any matter pending before it.
Neither the establishment of a schedule or target date by the Commission nor the failure of any affected agency to meet a schedule or target date shall be subj ec t to judicial review, whether in a proceeding to review or set aside an individual affected agency decision, or otherwise, b.
The Commission shall be the lead agency for purposes of the preparation of any environmental impact statement required by section 102(2)(C) of the National Environmental Policy Act of 1969, as amended, for any action taken under this act."]
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Sec. 6.
Subsection.182b. of the Atomic Energy Act of 1954 is amended to read as follows:
"b.
The Advisory Committee on Reactor Safeguards shall review each application under section 103 or section 104 b.
for a manufacturing license for a facility, each application under section 103 or 104 b.
for a construction permit and/or an opera-ting license for a testing facility, any application under section 104 a.
or c.
specifically referred to it by the Commis-sicn, any application for a site permit under section 192 a.,
and any applicaticn for an amendment to a manufacturing license or construction permit or an amendment to an operating license under section 103 or 104 a.,
b.,
or c.
or an amendment to a site permit under section 192 a.
specifically referred to it by the Commission, and shall submit a report thereon:
- Provided, however, That unless the Commission specifically requests a review and report on an application or portion thereof, the Ccmmittee may dispense with all or part of such review and report by notifying the Commission in writing that all or part of such review by the Committee is not warranted.
Any such notice that review is not warranted shall include a brief state-ment of the basis for this conclusion.
Any report or notice required.by this subsection shall be made a part of the record of the application and available to the public except to the extent that security classification prevents disclosure."
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Sec. 7.
Scction 189 of the Atomic Energy Act of 1954 is amended to read as follows:
"Sec. 189 HEARINGS AND JUDICIAL REVIEW. --
a.
In any proceeding under this Act, for the granting, suspending, revoking, or amending of any license, construction permit, or site permit pursuant tc subsection 192 a.,
or appli-cation to transfer control, and in any proceeding for the issuance or modification of rules and regulations dealing with the activities of licensees or holders of site permits pursuant to subsection 192 a.,
and in any proceeding for the payment of compensation, an award, or royalties under section 153, 157, 186 c.,
or 188, the Commission shall grant a hearing upon.the recuest of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding.
With respect to each application under section 103 or 104 b.
for a license to manufacture a facility, each applica-tion unue. section 103 or 104 b.
for a construction permit and/or operating license for a facility, any application under subsection 104 c.
for a construction permit or operating license for a testing facility, any application for an amendment to a license to manufacture or to a construction permit and/or operating license for such facilities, and any application under subsection 192 a.
for a site permit or for an amendment thereto,
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the Ccmmission shall publish a notice that consideration is being given to granting any such application once in the Federal Register and twice in maj or newspapers serving the affected area, at least one hundred and eighty days (sixty days for operating license applications and thirty days for applications to amend manufacturing and operating licenses, construction permits and site permits) prior to granting any such application.
The Commission may dispense with the thirty days' notice and publication of any application for an amend-ment to a manufacturing license, a construction permit and/or an operating license, or a site permit pursuant to subsection 192 a.,
upon a determination by the Commission that the amend-ment involves no significant additional risk to the health and safety of the public:
provided, that the Commission shall publish notice of issuance of such an amendment once in the Federal Register and twice in maj or newspapers serving the affected area.
b.
Any final order entered in any proceeding described in subsection a.
above, or with respect to the issuance of an interim operating license under section 193, shall be subject to judicial review in the manner prescribed in the Act of December 29, 1950, as amended (ch. 1189, 64 stat. 1129), and to the provisions of section 10 of the Administrative Procedure Act, as amended."
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.Sec. 8.
The Atonic Energy Act of 1954 is amended by adding a new section 193 to read as fo'llows:
"Sec. 193.
INTERIM OPERATING LICENSE. --
a.
Nothwithstanding any other provisions of this Act, the Commission r.ay issue, in the case of a nuclear power reactor, an interim operating license or an interim amendment to an operating license, or may allow interim operation of a facility for which a combined construction permit and operating license has been issued under section 185, in advance of the conduct or completion of any required hearing.
The Commission may not issue an interim operating license or allow interim operation of a facility for which a combined construction per-mit and operating license has been issued unless it determines that such action is necessary because of an urgent public need cr emergency.
The Commission may not issue an interim amend-ment to an operating license unless it deter.aines that such action is [necessary in the public interest] [necessary owing to a demonstrable public need for the power from the facility].
Any operating license or amendment so issued shall contain and any interim operation shall be subject to such conditions as the Commissicn deems necessary to assure that any subsequent findings and orders of the Commission with respect to the
13 subject matter of the proceeding wi.ll be given full force and effect and in all other respects the requirements of the Atomic Energy Act of 1954, as amended, including, but not limited to,
~atters of public health and safety, shall be met.
Prior to issuance of any such interim license or prior to allowing any such interim cperatien, the Commission shall publish in the Federal Register a notice of intent to do so which provides that any persen whcse interest may be affected may request a hearing on whether such action is necessary because of an argent public need or emergency.
The Commission itself shall preside at any such hearing and the nature of the hearing on urgent public need or emergency, whether in accordance with sections 554, 556, and 557 of Title 5 of the United States Code cr otherwise, shall be determined by the Commission in light of the nature of the factual issues in dispute.
Prior to issuance cf any such amendment the Commission shall publish in the Federal Register a notice of intent to do so requesting comments from interested persons on whether such action is [necessary in the public interest][necessary owing to a demonstrable public need for the power from the facility].
No such interim license or amendment may be issued or interim operation allowed for a period to exceed twelve months, unless the Commission extends such period for good cause shown.
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[b.
The Commission shall not make a determination pur-suant to subsection a.
that issuance of an interim operating license or amendment, or authorination of interim operation, is.ecessary without prior written certification from the Secretary of Energy that an urgent public n.ed or emergency, in the case of an interim operating license or interim opera-tion, or a demonstrable public need for ;he power from the facility, in the case of an interim operating license amend-
.ent, exists:
Frovided, however, That the Secretary of Energy shall delegate such certification authority te qualifying States pursuant to subsection c.
of this section.
c.
The Secretary of Energy shall establish procedures by which States may designate a certifying authority, and demon-strate a capability to perform the certificaticns of public need or emergency specified in subsection b.
of this section.
Upon determining that a State qualifies, the Secretary shall delegate authority to make such certifications with respect to all facilities located within its borders and intended to pro-vide 50% or more of its generated electrical power within its borders.
In the event that no single State is intended to use 50% or more of the electrical power from the facility, or that the facility is not located within the State intended to use
15 50% or more of such power, certifications of need shall be by agreement of the two o.a more States in question, or by agree-
.e n t of the State or States and the Secretary of Ene: cy, where one or more of the affected States has not received a delega-tion of certification authority under this subsection:
- Provided, however, That no such certification of need shall be required
.eith respect to any State, other than the State in which the facility is located, that is intended to use less than 10% of the power from the facility.
Where the licensee is not a public atility regulated by a State; such certification of need shall be made by the Secretary of Energy.
In the even<that affected States fail to agree, the Secretary of Energy shall forward his views to the Commission, togetler with the views of the affected State or States.
Certifications of need by the affected State or States or the Secretary of Energy shall be weighed by the Commission in making its determination whether to grant the recuested interim operating license or amendment or permit interim operation.]
Sec. 9(a).
A new section 194 is added to the Atomic Energy Act of 1954 to read as follows:
"Sec. 194.
FUNDING OF INTERVENORS. --
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a.(1)
There are hereby authorized such sums as may be necessary for establishing a pilot program for funding inter-vencrs in initial or renewal licensing proceedings, including site permit, cperating license and amendment proceedings, and in rulemaking proceedings in which an oral hearing is held by the Commission or a presiding officer designated by the Commis-sion, conducted by the Commission pursuant to the Atomic Energy Act of 1954, as amended, or the Energy Reorganization Act of 1974, as amended.
(2)
This section does not authorize funds for merely attending, as opposed to participating as a party intervenor in, Commission proceedings, or for proceedings where the cost of participation is minimal.
(3)
This section does not create any new right to par-ticipate in any Commission proceeding not authorized by cther trovisions of law.
"b.
The Commission shall pay for all or part of the cost of intervention of a party, including attorneys' fees, in Com-mission proceedings of the type described in subsection a.,
upon request and subj ect to available appropriations.
The amount paid, if any, need not cover all the costs of interven-tion and shall be determined with due consideration to procedures
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-and criteria established by the Commission by rule or regulation for selectics and payment of intervenors.
The rules shall stipulate criteria for determining the eligibility of inter-venors for fundins and the amount of funds to be provided.
These criteria shall include the following:
(1) that the intervenor's interest in the matter is one that entitles such inter-vencr to participate in the proceedings; (2) that the intervention would not occur or its effectiveness would be significantly limited in the absence of funding; (3) that the intervenor's participation is likely to lead to presentation of views that would not otherwise have been presented; and (4) that presentation of such views is likely to be necessary in order that a fair determina-tion be made.
The Commission shall by rule, regulation or order, allocate available funds for costs of intervention to types or classes of procecdings.
"c.
The amount of payment shall be based on rules, regu-lations, or orders promulgated pursuant to subsection b.
and the intervenor's contribution co the proceeding.
Payments
18 shall be made following the prcceeding unless the intervenor establishes to the satisfaction of the Commission that advance payments are required in order that its participation not be substantially impaired.
"d.
The Commission may decline to pay all or part of the costs of participation of a party who is otherwise eligible for payment under this section if the Commissien determines that the party has acted toward any other participant or the Commission in an obdurate, dilatory, mendacious, or oppressive A party who receives advance payment pursuant to sub-manner.
section c. chall be liable for repayment of part or all of such. payments actually received whenever the Commission determines that --
(1) the party clearly has not provided the representation for which the payments were made, or (2) the party has acted toward any other participant or the Commission in an obdurate, dilatory, mendacious, or oppressive manner.
"e.
The amount of costs of intervention awarded under this section for a particular proceeding shall be based upon
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the appropriations available and the prevailing market rates for the kind and quality of the services furnished, except that no expert, consultant or attorney shall be compensated at a rate in excess of the highest rate of compensation for experts, attorneys and consultants paid by the Commission.
"f.
Whenever multiple applications for payment under this section are submitted, the Cor.. mission may require con-solidation of duplicative presentations, select one or more effective representatives to participate, offer compensation cnly for certain categories of expenses, or jointly compensate parties representing identical or closely related viewpoints.
"g.
A party may obtain judicial review of a Commission action denying in whole or in part a request for payment under this section in the appropriate court of the United States having jurisdiction of an appeal from the proceeding in which the party participated notwithstanding that such Commission action may be interlocutory in nature:
Provided, however, That no order to stay the proceeding in which application for pay-ment of fees and costs under this section was made shall be entered by that court in such an action; And provided further, That no Commission action under this section may be vacated, enjoined, set aside, or suspended by a court except where there has been a clear abuse of discretion.
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"h.
The Commission shall, within ninety days after the date of enactment of this section, propose regulations to implement the provisions of this section.
Such regulations shall be adopted by the Commission and take effect no later than one hundred and eighty days after the date of enactment of this section.
"1.
This pilot program for intervenor funding shall be limited to applications for funding filed with the Commission before December 31, 1984, in proceedings for which the Ccmmission has issued a notice of opportunity for hearing by that datc.
By December 31, 1983 the Commission shall prepare and transmit to the Congress a report on the impact and effectiveness of this pilot program for funding intervenors.
In the event that there is enacted into law legislation pro-tiding generally for the funding of participants in agency proceedings, this pilot program shall terminate on the date
- pon which the funding program authorized by such general legislation becomes effective."
(b)
Section 189 b.
of the Atomic Energy Act of 1954 is amended by adding a new sentence at the end to read as follows:
" Orders by the Commission pursuant to section 194 denying in whole or in part reauests for funds shall be subject to judicial review as provided in section 194, and shall not be subject to judicial review as part of the final Commission order in the proceeding."