ML19305D186
| ML19305D186 | |
| Person / Time | |
|---|---|
| Issue date: | 03/21/1980 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| Shared Package | |
| ML19305D112 | List: |
| References | |
| RULE-PRM-2-5 NUDOCS 8004140145 | |
| Download: ML19305D186 (23) | |
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NUCLEAR REGULATORY COMISSION (Docket No. PRM-2-5)
State of New Hampshire Notice of Denial of Petition for Rulemaking Notice is hereby given that the Nuclear Regulatory Commission has denied a petition for rulemaking submitted by the State of New Hampshire through its Office of the Attorney General by letter dated October 31, 1978. The peti-tion requested the Nuclear Regulatory Comission to conduct a joint pro-ceeding with the Council on Environmental Quality, Environmental Protection Agency, Secretary of the Army, Secretary of the Interior, Secretary of State and Secretary of Transportation to adopt rules designed to achieve efficiency in the grant or denial of all licenses required for the construction and operation of nuclear power facilities.
In its letter, the petitioner also i
identified sixteen specific objectives or "results" which it sought to achieve.
A summary of each " result " associated public comments,, and the NRC response are set out in Appendix A to this notice.
A notice of the filing of the petition requesting coments by January 29, 1979, was published in the FEDERAL REGISTER on November 30,1978 (43 FR 56110-56111).
On February 1,1979, in response to a request from the firm of Debevoise and Libeman for additional coment time, a second notice was published in the FEDERAL REGISTER (44 FR 6532) extending the initial comment period to Febru-ary 28,1979.
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Eleven letters of public comment were received. Of these, six supported the primary objective of the petition--establishment of an interagency group to review and make recommendations to improve the efficiency of the NRC process for licensing nuclear power plants.
Four commenters opposed the petition, and one, the Council on Environmental Quality, expressed no views on the merits of the petition.
Three of the commenters who supported the petition either opposed or had reservations about many of the specific objectives sought by the petitioner.
The other three commenters who supported the petition expressed no views on the specific items of relief requested by the State of New Hampshire.
Of the four commenters who opposed the petition, one requested that the petition be dismissed for failing to meet minimal requirements for a rule making petition as set out in 10 CFR 9 2.802. A second, the United States Coast Guard, Department of Transportation, pointed out that the current Memorandum of Understanding between the Coast Guard and the Nuclear Regula-tory Commission already contains procedures for consolidating and minimizing duplication in proceedings for issuance of necessary certifications and licenses for floating nuclear power plants, that Coast Guard involvement in the licensing of shoreside nuclear facilities is minimal and can be handled satisfactorily on a case-by-case basis and that accordingly fonnal joint procedures are unnecessary. The other two commenters who opposed the peti-tion favored two of the pet,Joner's suggestions but recommended that the petitioner's remaining proposals be denied.
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The Nuclear Regulatory Commission shares the concern of the State of New Hampshire regarding the need for efficiency in the licensing process. At the same time, the Commission recognizes that the primary purpose of that process is to assure adequate protection of the public health and safety.
In order to improve coordination among Federal agencies with related regula-tory responsibilities and to avoid conflicting standards and unnecessary duplication of effort, the Commission has entered into separate memoranda of understanding with the Environmental Protection Agency,M the Department of Transportation,M he United States Coast Guard,M and the Corps of Engineers t
of the United States Amy.M These memoranda of understanding identify the overlapping statutory responsibilities of each participating agency, describe y
AEC-EPA Memorandum of Understanding with Respect to AEC-Licensed Facilities, effective August, 1973, 38 FR 24936, September 11, 1973.
Second Memorandum of Understanding and Policy Statement Regarding Implementation of Certain NRC and EPA Responsibilities, Under the Federal Water Pollution Control Act Amendments of 1972 and the National Environmental Policy Act of 1969, as amended, effective January 30, i
1976, 40 FR 60115, December 31, 1975.
y Memorandum of Understanding between the Department of Transportation and the Nuclear Regulatory Commission regarding the roles of 00T and NRC in the regulation of the transportation of radioactive materials, effective June 8,1979, 44 FR 38690-38692, July 2,1979.
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Memorandum of Understanding Between the United States Coast Guard and the United States Atomic Energy Commission for Regulation of Floating Nuclear Power Plants, effective January 4,1974, 39 FR 2124, January 17, 1974.
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Memorandum of Understanding Between the Corps of Engineers, United States Army, and the United States Nuclear Regulatory Consnission for Regulation of Nuclear Power Plants, effective July 2,1975, 40 FR 37110, August 25, 1975.
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< how each agency expects to carry out its responsibilities, and specify how the participating agencies will consult and cooperate with one another.
Although improving the licensing process is a matter of continuing Commission concern, recent events at Three Mile Island Unit 2 have made it necessary for the Commission to reorder its priorities. The Commission has committed a significant portion of its staff and resources to direct support of TMI-2 cleanup and reCJVery operations and to a review and evaluation of lessons learned. Although the results of these efforts cannot yet be fully known, additional recomendations for changes in licensing requirements and licensing procedures are quite likely to result.
The Commission notes that some of the petitioner's objectives can be achieved under NRC's existing regulations and memoranda of understanding, while others may be adequately accommodated under the new regulations promulgated by the Council on Environmental Quality (43 FR 55978-56007, November 29, 1978). The CEQ regulations, for example, contain several specific provisionsEl which would facilitate the Federal permitting process for energy facilities, including nuclear power reactors.
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These provisions include:
All pemits identified early.
All agencies with authority over a project required to consult early and work with the lead agency.
All agencies to develop procedures to aid applicants.
Avoidance of delay. Time limits on NEPA process must be set at applicant's request.
All reviews to be prepared concurrently rather than consecutively.
All infomation or mitigation that will be necessary to approve the project to be identified early.
Elimination of duplication in EIS preparation.
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. In view of the foregoing, the Nuclear Regulatory Commission hereby denies the petition for rulemaking filed by the State of New Hampshire on October 31, 1978.
Copies of the petition for rulemaking, comments received and the NRC's letter of denial are available for public inspection in the N,RC's Public Document Room at 1717 H Street, N.W., Washington, D.C.
Dated at Washington, D.C., this bIU day of N, 1980.
F r the U.
7 Nuclear Regulatory Commission.
amue! J.
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Secretary of the Commission
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Appendix A - Docket No. PRM-2-5, State of New Hampshire - Summary of Public Comments and NRC Response ITEM 1.
Designation of NRC as sole depository for all applications for all licenses or other federal authorizations required for construction and operation of nuclear power facilities, and all documents related to such applications.
Public Comment Two commenters favored and two opposed this proposal. One supporter of the concept noted that legislation would be required and recommended that the requisite authority be included in any proposed licensing legislation.
Opponents of the proposal pointed out that the NRC lacked authority to resolve issues raised in connection with authorizations from other Federal agencies, that it was essential that applications be filed with the Federal agency with jurisdiction to act uoon them, and that using NRC as a paper I
drop would not enhance the decisionmaking process. One opponent of the proposal recommended instead that a file containing all documents relating to a nuclear power plant be placed in a local library within 20 miles of the plant site.
NRC Response Designating NRC as the sole depository for all applications for all licenses and other federal authorizations required for the construction and operation
. of nuclear facilities and all documents related to such applications will not change the authority and jurisdiction of Federal agencies who have legal responsibility for granting or denying those licenses and authorizations.
The proposal will not improve the decisionmaking process in any significant way because it will still be necessary for applicants to file applications directly with the Federal agency with jurisdiction to act upon them. The Commission opposes Item 1.
ITEM 2.
The conduct of a single, joint, consolidated hearing on such applications for all agencies involved, including the compilation of a single record, when a hearing is required; the " hearing" to include all processing of an application on and after its filing.
Public Comment Three commenters favored and three opposed this proposal. Two commenters who supported the basic concept recognized that it presented serious practi-cal difficulties from the standpoint of implementation. The third commenter stated that implementing legislation would be required and recomended that the necessary authority be included in any proposed licensing legislation.
Two opponents of the proposal noted that it presented great practical diffi-cul ties. One opponent pointed out that it was of limited value from the standpoint of increased efficiency because the use of a single forum would mean that issues would be considered consecutively instead of concurrently
. i in parallel proceedings. One opponent acknowledged that the present hearing i
process was too fragmented but characterized the solution proposed by the State of New Hampshire as both inappropriate and detrimental. The commenter opposed the New Hampshire proposal because it would single out nuclear 6
projects for a special kind of environmental review--the commenter stated that nuclear projects should not be treated differently from other types of r
major federal projects. The commenter also opposed the proposal because it believed it would dilute agency responsibility. The commenter noted that the respective responsibilities of the agencies who would be participating in a joint hearing would not be identical and that the better approach from the standpoint of unbiased administration of the law would be for each agency to act separately in applying its particular requirements. The commenter noted that the possible benefits of joint examination of projects are already achieved in the NEPA process through Federal agency comments on draft environmental impact statements and that the petitioner's goal might be better achieved if NRC's own hearing process were less fragmented, for example, by making more comprehensive safety determinations during the construction permit stage of the proceeding and leaving fewer safety issues to be resolved at the operating license stage. The commenter acknowledged 3
that the creation of a common record documenting resolution of agency com-ments could provide some public benefits and suggested that special joint l
public hearings might be useful in resolving major areas of conflict among i
i or between agencies.
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9 NRC Response The NRC has adequate authority under its existing rules to conduct joint consolidated hearings with States or other Federal agencies.
(See 10 CFR 99 2.716 and 2.402.
See also 10 CFR 9 2.715 with respect to participation of States and local governments in NRC proceedings.) The NEPA process also provides mechanisms, such as the scoping process and the opportunity to comment on draft environmental impact statements, which encourage joint review of proposed nuclear power projects and can be used to coordinate and resolve the concerns of affected Federal agencies.
In theory, the so-called one-stop hearing concept appears attractive.
In practice, it presents difficulties, both substantive and procedural, arising primarily with respect to the development and use of a common record by separate decisionmakers charged by statute with independent responsibilities for resolving particular i
issues.
In those instances in which decisions can ba based on a common body of evidence, use of a single forum may well increase the efficiency of the l
licensing process since it will eliminate the need to present the same material in two separate forums. Wher. der.isions cannot be made on a common body of evidence, a requirement to conduct a single, joint consolidated hearing may prove counterproductive and tend to complicate the licensing process.
In the opinion of the Commission, the present system, under whic5 l
the NRC, may, as a matter of discretion, hold joint consolidated hearings in selected proceedings chosen on a case-by-case basis, should be retained.
ITEM 3.
Establishment of a joint decisionmaking procedure to be employed after compilation of a record in which all involved agencies will participate and render a joint decision disposing of all issues raised, specifying all limitations on conduct of applicant and specifying all design changes required of applicant to accommodate needs of all agencies involved in the licensing process.
l Public Comment Three commenters favored the basic concept but expressed reservations con-cerning the extent to which it would be consistent with agencies' s tatutory mandates. One commenter stated that implementing legislation woulc be needed and requested that the necessary authority be included in any pro-posed licensing legislation.
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One commenter noted the practical drawbacks involved in a joint decision-i making procedure but pointed out that the overall result could prove bene-ficial in that it would 1hait construction starts to plants in which all systems have a certified design, thereby alleviating the risk to the public health and safety occasioned by the operation of an improperly designed plant.
One commenter stated that the proposal would violate the independence of the Nuclear Regulatory Commission and other Federal agencies and expressed the view that a procedure in which coordinated decisions occur in logical order makes better sense.
. 1 NRC Response The Commission supports retention of the present system for reasons discussed in connection with Item 2.
ITEM 4.
Development and publication of more detailed requirements for the form and content of all applications required for the construction and operation of nuclear power facilities.
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Four of the five commenters expressed the view that further action on this matter was not needed at the present time.
Reference was made to Regulatory Guide 1.70, Standard Fonnat and Content of Safety Analysis Reports for Nuclear Power Plants, LWR Edition, Revision 3, November 1978 now in use.
One commenter who expressed support for the proposal urged that the techni-i t
cal requirements for nuclear power plants be made more specific in terms of results and/or system operability and that these requirements be codified in the Commission's regulations instead of being issued as guidance.
NRC Response One of the Commission's principal responsibilities is to make sure that applicants provide the information which the Commission needs to make the requisite statutory findings on which the Commission's decision to grant or deny a permit or license must be based. Towards this end, the NRC keeps the form and content of its license and pennit applications under t
. continuing review, updating them periodically to assure that needed infor-mation is presented in sufficient detail. The NRC also has broad authority under the regulations to require applicants to supply any additional infor-mation which may be needed (see 10 CFR 5 2.102(a)). Because nuclear power plant designs are not fully standardized, it is impracticable to establish more precise information requirements for applications.
In the opinion of the Commission, further implementation of Item 4 is impractical and unnecessary.
ITEM 5.
Widest popular notice of tendering and filing of applications required for construction and operation of nuclear power facili-ties, including personal notice to executive officers of State and local governnents, local and regional radio and TV broadcasts and publication of notices in local and regional newspapers.
1 Public Comment Although there was general agreement among the six commenters that the public should have early notice of applications to construct and operate nuclear power plants, four commenters expressed the view that the Commis-sion's present regulations are adequate. One commenter stated that any benefits which might result from a broadcasting requirement would be out-
. weighed by the added expense.
One commenter expressed the view that the notice requirements should be more specific, particularly with respect to the use of newspaper ads. Another
. commenter expressed strong support for the proposal, and urged that it be given retroactive effect in order to provide new opportunities to intervene in all pending construction permit and operating license proceedings.
NRC Response The Commission's regulations now provide wide notice of the tendering and filing of applications for permits and licenses to construct and operate nuclear power plants. Upon notification that a tendered application is acceptable for docketing, an applicant is required by the Commision's Rules of Practice to serve a copy of the application on the chief executive of the municipality or county in which the facility is to be located and to serve a notice of availability of the application on the chief execetives of the municipalities or counties identified in the application or in the environ-mental report as the location of all or part of the alternative sites.
In accordance with instructions from the NRC staff, the applicant is also required to distribute additional copies of the application to Federal, State and other local officials. Labor unions and river basin commissions are routinely informed of all construction pennit applications. A copy of l
each tendered application is also placed in the Commission's public document room at 1717 H Street, N.W., Washington, D. C. and in a local public docu-ment room near the proposed site.
Following formal docketing of an application, the NRC sends a notice of docketing to the Governor or other appropriate official of the State in
9-which the facility is to be located and publishes the notice in the Federal Register.
In the case of applications for which a hearing is required, for example, applications for construction permits for nuclear power plants, a notice of hearing is also issued. The notice of hearing is sent to all parties to the proceeding, to those persons who have received permission to make a limited appearance in the proceeding, to persons who have asked to be notified of the hearing, and to appropriate State and local officials. The notice of hearing is published in the FEDERAL REGISTER and in selected newspapers with both statewide and local coverage.
t With respect to matters for which a hearing is nei:her required nor needed in the public interest, a notice of proposed action is issued. This notice, t
which is also published in the FEDERAL REGISTER and in State and local newspapei s, offers the applicant and any interested persons an opportunity to request a hearing.
i In addition to these notices, NRC headquarters staff issues press releases to the media announcing that an application for a construction permit or an operating license for a nuclear power plant has been tendered or formally docketed. To assure adequate local coverage, press releases are also issued by the Commission's regional offices. Copies of these releases are routinely j
sent to local radio and TV stations as well as to newspapers.
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. e In the opinion of the Commission, the NRC's present regulations and prac-l tices adequately implement the "results" cought by the State of New Hampshire i
concerning notice of the tendering and filing of applications..
E ITEM 6.
Requirement that involvement in the processing of applications by f
persons other than the applicant and the licensing agency either l
be commenced at the outset of the proceeding or not at all.
i Public Comment None of the six commenters who addressed this proposal expressed support for the result sought by the petitioner. All considered the Comission's pres-ent regulations for participation in licensing proceedings adequate. Two commenters expressed the view that problems of delay resulting from late-filed petitions could be readily resolved by applying the Comission's i
existing regulations (10 CFR $ 2.714(a)(1)) more strictly. Three comenters expressed strong opposition to the proposal because it would eliminate desirable flexibility, compromise due process and have an adverse effect upon the public interest.
i NRC Response The approach recommended by the State of New Hampshire, that persons be t
barred from participating in a licensing proceeding once such a proceeding has commenced, is overly strict and contrary to the public interest. The Comission has adequate authority under its existing Rules of Practice l
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(10 CFR 5 2.714) to limit participation by persons who apply late for per-l mission to intervene. At the same time the rules are sufficiently flexible to assure Commission consideration of any matters necessary to the develop-ment of a sound record, including matters whose relevance and importance did not become readily apparent until after the proceeding has commenced.
The Commission opposes adoption of the State of New Hampshire proposal.
ITEM 7.
Requirement that the issues and positions of all involved persons be determined and fixed at an early stage in the processing of license applications, i
Public Cemment The consensus of the six commenters who addressed this proposal was that the Commission's existing regulations (10 CFR S 2.714) now contain a mechanism which will achieve this result and that further amendments to the regulations are not needed. Two commenters urged that the present requirements for amending contentions be more strictly applied. These same commenters also expressed the view that, cor.trary to present Cocmission practice, participa-tion by an intervenor in a hearing should be strictly limited to issues involving contentions which that intervenor raised. One commenter character-ized the proposal as vague and impractical and expressed the view that the
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. present deadline for thc identification of contentions already occurs too early in the regulatory process. Two commenters noted that the proposal would preclude any subsequent change in position in response to newly dis-covered evidence, exclude legitimate interests of importance discovered later, and limit the development of a full and complete hearing record.
NRC Response I
The Commission's present Rules of Practice both encourage early identifica-tion of issues and contentions ar 3 permit those issues and contentions to be anended as appropriate to reflec; newly discovered evidence (10 CFR 9 2.714).
It has been the experience of t' e NRC that these procedures provide the degree of flexibility needed tL develop an adequate record on the substan-tive issues which require consideration in a facility licensing proceeding.
In the opinion of the Commission, the NRC's responsibility for protecting the radiological health and safety of the public is not well served by establishing arbitrary time limits which cut short meaningful examination of relevant concerns. The Commission opposes the State of New Hampshire's proposal.
ITEMS 8, 9 and 10. Establishment of a fixed time period for review of and decision on a license application, including establish-ment of firm deadlines for each stage of licensing process. This authority to set mandatory deadlines
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I would be specifically conditioned to provide an auto-matic result, favorable to the applicant whenever the agency failed to complete or take appropriate action t
within the time specified. The authority would also be subject to safeguards which would provide that fixed time periods shall not commence to run until an appli-cation, completed in accordance with agency rules, has '
been filed by the applicant, that the time consumed by the applicant in responding to agency requests for data not be included in such fixed time periods and "that the agencies shall automatically make those findings of fact and conclusions of law necessary to support the granting of licenses to the applicant."
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Public Comment Four of the six commenters who addressed this matter felt that schedules could be helpful in expediting the licensing process. Three commenters also expressed guarded support for the automatic licensing provision. Three commenters were firmly of the opinion that an automatic licensing provision such as that proposed by the State of New Hampshire would be illegal under Federal law, including the Atomic Ener1Y Act and the National Environmental Policy Act.
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, l NRC Response The Commission is precluded by its organic acts from implementing this result. Unless the Commission is able to make the requisite statutory findings, e.g., that issuance of the license would not be inimical to the coninon defense and security or to the health and safety of the public (see sec.103d, Atomic Energy Act of 1954, as amended) it lacks authority to i
issue a license. These statutory requirements cannot be circumvented by establishing mandatory time schedules in the regulations and providing that licenses will be issued automatically whenever the Conmission fails to act within the time specified.
In the opinion of the Commission, the objective sought by the State of New Hampshire is contrary to sound public policy and may in specific instances i
be unachievable. No agency can automatically guarantee a finding of a specific fact by a specific time. Where questions of public health and safety are concerned, mandatory compliance with time schedules is not an j
acceptable substitute for reasoned decisonmaking.
If the Consnission is to carry out its licensing and related regulatory activities in a responsible and effective manner, it must have an adequate opportunity to investigate all matters of concern, old as well as new, those that enhance as well as those that detract from safety. The public health and safety cannot be adequately protected if important substantive issues are subordinate to arbitrary time limits. The Coninission opposes these proposals.
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. ITEM 11.
Requirement that uncontested applications which nevertheless require a hearing be sent directly to the agency head for approval after the applicant and NRC staff have resolved any differences.
Public Comment This proposal, which would pennit the statutory public hearing requirement to be waived under certain circumstances, was opposed by five of the six commenters who addressed it. One commenter supported the proposal, stating that it appeared to be a workable and beneficial suggestion. Three commenters viewed the proposal as contrary to existing law and therefore not a proper subject for rulemaking. (Under section 189a of the Atomic Energy Act of 1954, as amended, the Commission is required to hold hearings on applications for construction permits for utilization and production facilities, including nuclear power reactors, even when an application is uncontested.)
Two commenters expressed the view that the interest of the public would be best served by holding a public hearing in all cases, including those which were uncontested. These commenters urged that a mandatory public hearing be held in connection with each application for an operating license and recom-mended that public hearings be conducted at or near the plant site.
In the opinion of one commenter, direct referral of uncontested cases to the Commission would not expedite the decisionmaking process but would probably result in additional delay.
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. NRC Response Existing law precludes the Commission from waiving the statutory hearing requirement in the case of uncontested applications. Under section 189a of the Atomic Energy Act of 1954, as amended, the Commission is required to l
hold hearings on applications for construction pennits for utilization and f
production facilities in all cases, including those in which the application is uncontested.
ITEM 12.
Requirement that the Advisory Committee on Reactor Safeguards review applications at the same time as the NRC staff, that the ACRS report its findings by a certain time and that the ACRS not reserve issues for further consideration.
Public Comment This recommendation was opposed for a variety of reasons by the six commenters who addressed it. Two commenters stated that the ACRS would cease to serve a useful function if it were not allowed to identify unresolved problems and continue working on them. One commenter pointed out that the ACRS and NRC staff reviews are now condt cted in parallel, but noted that the parties to a proceeding, including NRC staff, need an opportunity to study the results of the ACRS review prior tr the hearing in order to be able to provide construc-tive comments. Three commenters felt that the parallel review process pro-posed by the State of New Hampshire would not be beneficial and would result i
in overlap and duplication of effort. Two conmenters stated that ACRS i
review should be strictly limited to reactor safety matters, the ACRS area i
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. of expertise. One commenter suggested that ACRS resources would be better utilized in reviewing the applicant and staff effort.
NRC Response The Advisory Committee on Reactor Safeguards is a panel of independent advisors established by law to review and report to the Nuclear Regulatory Commission on safety studies and on construction pennit and operating license r
applications for nuclear power reactors and other major nuclear facilities.
The Committee also provides advice to the Commission on a wide range of safety-related matters such as the adequacy of proposed reactor safety i
standards, reactor safety research, specific technical issues of a topical nature, and the safety of operating reactors. The Comittee's functions were enlarged by Public Law 95-209 which added the requirement for Committee f
review of the NRC's Reactor Safety Research Program and an annual report to the Congress concerning the adequacy of the program.
In addition, upon i
request by the Department of Energy (DOE), the Comittee reviews and pro-vides reports with regard to the possible hazards of DOE nuclear activities and facilities. The Committee may also on its own initiative conduct reviews of specific safety-related items.
The Commission opposes those portions of Item 12 which would require the ACRS to report its findings by a time certain and prohibit the ACRS from reserving issues for further consideration. These requirements trench upon the Commit-tee's independence and are inconsistent with its statutory responsibilities.
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. Under the Commission's present licensing procedures, the NRC staff and the Advisory Committee on Reactor Safeguards now conduct parallel reviews of license applications.
ITEM 13.
Prohibition against sending a contested application back to the NRC staff after it has been referred to an administrative law judge or Atomic Safety and Licensing Board for initial decision and requirement that any supplementary information be submitted directly to the presiding officer and evaluated in the initial decision.
Public Comment Four commenters addressed this proposal. Two commenters considered the proposal well-founded and likely to improve the efficiency of the licensing process. These commenters noted that the Commission's regulations now pro-vide such procedures with respect to environmental matters and that these procedures have been approved by the courts. However, these same commenters were also of the opinion that presiding officers should have discretion to refer an application back to the NRC staff for further supplementation and analysis whenever such referral seems necessary.
Two commenters opposed the proposal on the ground that it might prevent pre-siding officers from obtaining additional needed infonnation. One comenter questioned the reason for New Hampshire's concern, noting that presiding officers are now required to evaluate all data and that referral back to the NRC staff only occurs after a remand.
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. NRC Response The Comission opposes this proposal because it is unnecessary, lacks needed flexibility, and reflects a lack of understanding of the Comission's licensing procedures. Under existing Commission practice, once a proceeding has com-mencedM all data and infomation relating to the application is submitted to the presiding officer. The presiding officer is responsible for conduct-ing a fair and impartial hearing, taking appropriate actions to avoid delay, and maintaining order. He is authorized, among other things, to rule on p
offers of proof, receive evidence, examine witnesses, reopen the proceeding for the reception of further evidence at any time prior to initial decision and to issue an initial decision (10 CFR 6 2.718.)
In connection with his authority to receive and evaluate evidence, the presiding officer may request the staff to furnish additional information. Staff responses to these requests are frequently helpful in filling infomation gaps or in clarifying previously submitted infomation.
In making this request, the presiding officer does not relinquish jurisdiction over the proceeding to the staff, which, throughout the proceeding, retains its status as a party.
In each proceeding, the jurisdiction of the presiding officer teminates only upon the expiration of the period within which the Comission may direct that the record be certified to it for final decision, or when the Commission renders l
l a final decision, or when the presiding officer withdraws from the case upon considering himself disqualified, whichever is earliest.
jf The Commission's Rules of Practice state that a proceeding is deemed to comence when a notice of hearing or a notice of proposed action pursuant to i 2.105 is issued (10 CFR 9 2.717(a)).
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l ITEM 14.
Eliminate the Atomic Safety and Licensing Appeal Board.
i Public Comment Three commenters noted that the Commission has this matter under review and declined to provide any substantive comments.
Three commenters opposed this proposal. These commenters pointed out that Commission procedures now permit appropriate cases to be referred directly l
to the Commission. They also stated that the Appeal Board performs a valu-able review function, which includes screening issues for Commission consid-eration.
NRC Response Since the Commission has decided to obtain public comment on the " Study of the Nuclear Regulatory Commission's Appellate System," NUREG-0648, prepared by the Office of the General Counsel and published January 1980 (see FEDERAL REGISTER notice, 45 FR 6873, January 30, 1980), rulemaking action on this proposal at this time is premature.
ITEM 15. Authorization for applicants to prepare draft environmental impact statements based on their environmental reports and any comments and data submitted thereon, and authorization for agency staff, after evaluation and opportunity to make any desired changes, to adopt and issue the draft environmental impact statement prepared by the applicant as its own. The authorization would further
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provide that if the agency staff fails to issue a draft environ-mental impact statement by a date certain, the draft statement prepared by the applicant shall be circulated as the staff's draft environmental impact statement.
3 Public Comment This proposal found no support.
Five commenters opposed the proposal as contrary to law and beyond the scope of NRC's authority. These commenters l
pointed out that the National Environmental Policy Act of 1969, as amended, places responsibility for preparation of environmental impact statements on Federal agencies, not on applicants. One commenter recommended that the NRC l
staff establish time schedules for the preparation of environmental impact statements.
r NRC Response i
The Commission opposes Item 15. The National Environmental Policy Act of 1969, as amended, requires Federal agencies to prepare and issue environ-mental impact statements (NEPA, sec.102(2)(C)). While Federal agencies may i
obtain needed environmental information from various sources, including applicants, the agency is responsible for independently evaluating any information which it uses.
l The Commission's proposed revision of 10 CFR Part 51 addresses this matter affinnatively in sec. 51.41 which provides that the Connission will evaluate
- infonnation submitted by applicants independently and that the Commission will be responsible for any information which it uses. The regulations of the Council on Environmental Quality published November 29, 1978 contain a similar provision (see 40 CFR 9 1506.5.)
ITEM 16. Requirement that final environmental impact statements be com-pleted by a date certain, that applicants be expressly authorized to apply for a court order compelling issuance of a final environ-mental impact statement by a time certain and that no opposition to such an order be permitted.
Public Comment This proposal, which was addressed by six commenters, did not receive sup-port. Three commenters opposed the recommendation as contrary to law.
Three commenters questioned the usefulness of the proposal, pointing out that delays in the preparation and issuance of final environmental impact statements are not critical from the standpoint of the NRC's licensing process and do not significantly increase the time required to review a license application and issue a decision. These commenters indicated that instructions from Licensing Boards requiring the NRC staff to prepare supple-ments to final environmental impact statements are more likely to cause delay. Two commenters felt that the establishment of time schedules would be helpful.
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s l NRC Response The Commission opposes this pronosal. While the use of time schedules is frequently helpful in eliminating unnecessary delay--S 51.15 of the Commis-ston's proposed revision of 10 CFR Part 51 requires NRC staff, when requested, to establish time schedules for all or any constituent part of the NRC staff NEPA process--a requirement that final environmental impact statements be issued on a date certain and that this requirement be enforced by judicial order to which no objection can be made is arbitrary and unreasonable. The proposal ignores the wide variations among environmental impact statements in terms of scope and degree of detail and places procedure ahead of sub-stance. The Commission notes in passing that the timing of the issuance of final environmental impact statements has seldom been a factor in delaying licensing proceedings.
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