ML19318A548
| ML19318A548 | |
| Person / Time | |
|---|---|
| Issue date: | 05/16/1980 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| References | |
| FRN-45FR34279, RULE-PR-2, RULE-PR-50 NUDOCS 8006230342 | |
| Download: ML19318A548 (36) | |
Text
e Title 10 - Energy CHAPTER 1 - U.S. NUCLEAR REGULATORY COMMISSION PART 2 - RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS Amendments to 10 CFR 2.764 AGENCY:
U.S. Nuclear Regulatory Commission ACTION:
Proposed rulemaking SUMtARY: The Commission is considering amendments to its "immediate effectiveness" rule. That rule provides that construction can begin on the basis of an initial decision by an Atomic Safety and Licensing Board even though that decision is subject to further review within the Commission.
The Commission is considering three alternative amendments to that rule, and is also considering retaining the present rule unchanged.
DATE: Comments must be et seived within 45 days of the date of this notice.
ADDRESSES: All persons who desire to submit written comments or suggestions for consideration in connection with the proposed amendments should send them to the Secretary, United States Nuclear Regulatory Commission, Washington, DC, 20555, Attention: Docketing and Service Branch.
Copies of all comments received may be examined in the Commission's Public Document Room at 1717 N Street, NW., Washington, DC. Persons who have commented previously on this subject in connection with the work of the Federal Advisory Committee, mentioned below, may wish to make reference
'to their previous commer.3, and to direct their further remarks to the l
specific features of the three options for change which are now presented.
s 8dO6230 M
FOR FURTHER INFOMATION CONTACT: Peter Crane, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC, 20555, (202)634-1465..
i SUPPLEMENTARY INFO MATION:
In its Seabrook opinion of January 6,1978, l
the Commission announced that it intended to monitor more effectively 1
the proceedings of its lower boards.
Public Service Comoany of New Hamoshire, 7 NRC 1, 7.
It stated that in practice its current rules often prevent it from reviewing a case until construction is 'well underway and that this might adversely affect either the quality of its decisionmaking process or the public's perception of that process, or both.
It directed that a study be made of the following questions:
1.
"the effect which would be achieved by relaxation of our stay standards so that site-related issues in potentially troublesome cases may be taken up before large sums of money are committed and sites irrevocably altered; and 2.
ways in which our appellate admini.strative procedures may assure earlier resolution of all the issues arising out of a licensing an. at relitigation and piecemeal review to a minimum."
In January of 19'., c.w Commission established a Federal Advisory Committee to conduct the study; on December 12, 1979 the Advisory Committee submitted its final report (NUREG-0646) to the Commission. Single copies of i
NUREG-0646 may be obtained without charge by writing to the Director, Division of Technical Information and Document Control, U.S. Nuclear Regulatory Commission Washington, D.C. 20555. The report contained t'1ree cottons for altering the Commission's "immediate effectiveness" rule (10 CFR 2.764), together witn a discussion of the advantages and
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disadvantages of retaining the present licensing system unchanged. It '
should be noted that the report, and the options which it presented, dealt only with the issue of construction during adjudication, and not with the _ issue of operation during adjudication.
The Cc=ission is now considering whether to retain the present system or to adopt one of several possible options for change.
In January 1980, the Commission's Office of General Counsel completed and presented to the Commission a separate but related study, entitled "The Nuclear Regulatory Commission's Appellate System", (NUREG-0648).
The study discussed the history and capabilities of the present appellate system, and the practices of other agencies; analyzed the workload of the Atemic Safety and Licensing Appeal Panel; evaluated options available to the Commission; and presented conclusiens, including some recoc: endations for change of the appellate system. Fersons who are interested in the proposed rules set forth below may wish to provide comments in light of the discussions and conclusions in both studies.
Copies of that study are available for public inspection in the Commission's Public Document Rooms. Single copies of the appellate study (NUREG-0648) may be obtained by written request addressed to the Director, Ohision of Technical Information and Document Control, Nuclear Regulatory Commission, Washington, D.C. 20555. Notice of the availability of NUREG-0648 was published in the Federal Register on January 30, 1980 (45 F. R. 6873). The notice solicited public comment on NUREG-0648, to be forwarded to the Ccmmission by March 17, 1980.
' Sumtrv of the cresent licensina system To construct a nuclear power plant an applicant must file with the Ccemission a detailed appif cation addressing both the design of the procosed facility and its cotential e,vironmental impacts. Once tnat application has been thor ugnly rev'e ed by the Ccemission staff, an adjudicatory hearing is held :n :ne a::licatien before an At:mic Safety s
and Licensing Board. Full adjudicatory procedures, including the right to present and cross-examine witnesses, are available in the hearing and, in addition to NRC staff and the applicant, any persons whose interests may.be affected by the proposed plant may participate as parties. The Licensing B'oard's decision must be based solely on the i
record compiled before it.
If the Board finds reasonable assurance that the plant as designed will not be inimical to the health and safety of the public, and that the overall cost-benefit balance mandated by the National. Environmental Policy Act (NEPA) favors granting the application, it will authorize a construction permit. The pemit will be effective
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immediately unless a party has shown the Board good cause why it shocid not be. 10 CFP. 2.764 provides that the NRC staff must issue the pe:mit within 10 days after the Board's decision. Construction may then begin.
There are two avenues available to a party who objects to the Board's initial decision. The primary mechanism is appellate review. All Licensing Board decisions, whether or not appealed, are reviewed on the merits by a three-member Atomic Safety and Licensing Appeal Board which has full authority to review the legal and factual conclusions reached by the Licensing Board. The Appeal Board's decision in turn is subject to discretionary review by the Commission itself, either on its own j
motion or by the granting of a petition for review (a "certiorari petition")
l filed by a party pursuant to 10 CFR.2.786.
Finally, any party can seek
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judicial review of a final Commission order in one of the United States Courts of Appeals.
In addition, a party appealing a licensing board decision may seek a stay. The immediate effectiveness rule nomally pemits ccnstruction to e.
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proceed during this entire appellate review. The Commission recognized,
'however, the need for a procedure which would allow a party to seek relief from a decision while that decision was on appeal. Rules were therefore adopted which provide that a stay may be sought, first from the Appeal Board, and if the Board denies the request, then from the Cornmission. The criteria used to rule on the stay request were taken i
from those used by courts to judge requests for stay of administrative i
decisions. The criteria are commonly referred to as the Vircinia Petroleun Jobbers criteria, after the case in which they were first articulated, Vircinia Petroleum Jobbers Ass'n v. FPC, 259 F.2d 921 (D.C. Cir.1958).
Ootions for chancino the cresent licensine system The three options which are being considered for changing the present system are as follows:
Ootion A - Effectiveness as an Additional Issue in Licensinc This option would require the Licensing Board to make a separate ruling on the question whether its initial decision should be imemdiately effective. The ruling would be based upon the record, and would deny effectiveness if the Board found, at the close of hearing, any substantial question on an issue which could be affected by the early stages of construction at the site. Such issues would include, for example, alternative sites, site suitability, and the overall NEPA cost-benefit balance; no issue would necessarily be excluded. The merits of any substantial question on these issues would have to be resolved on appeal before construction at the site could begin. A " substantial question,"
for these purposes, does not require the Board c find that its own ruling may be incorrect, but rather that the pa-ty which did not prevail on :ne issue has demonstrated substantial, ncn-f-inicus arguments which 9
e c:dc ce raised on appeal.
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- In a sense, Option A may be seen as the functional equivalent of retaining the present system of immediate effectiveness, but with liberalized stay standards 'in place of_ the strict Vircinia Petroleun Jobbers standard.
Alternatively, the Commission could simply alter its present stay standards to provide that a stay will be granted if a party demonstrates that there is a substantial question as to the correctness of the resolution of an issue which might be prejudiced by construction. (This is the approach taken in Option D.) Option A achieves approximately the same effect, except that in the case of a stay, the burden would be on the proponer. of the stay to overcome the presunption in favor of immediate effectiveness; under Option A, however, there would be no presumption for or against immediate effectiveness. As a practical matter, this might be significant only in uncontested cases, where under Option A, t
effectiveness might be deferred if the Licensing Board found that there was a substantial question as to the correctness of its own resolution of a particular issue which might be prejudiced by construction.
Chronologically, Option A would operate as follows:
A.
At the hearing:
1.
Applicant would advise the Board and parties early by letter of its proposed schedule of construction and expenditure.
2.
If the nature of the issues warranted, discovery would be permitted on this schedule, and testimony would be required from applicant and staff (and pennitted from intervenors) on l
the schedule. These steps would be taken toward the end of l
l the hearing, and at the Licensing Board's discretion. The l
purpose of the testimony would be to identify points in the construction schedule which are critical for particular issues.
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B.
In the initial decision:
1.
The Board would respond to the positions of the parties by ruling on the date when construct. ion may begin.
It would identify (and make findings on) any substantial issue which might be prejudiced by construction and note when construction might affect it.
2.
The Licensing Board would defer construction whenever, as stated above, it found a substantial question (as defined above) on an issue which could be affected by construction.
This decision would be made in light of the construction schedule, so that construction could go forward unless it affected an issue falling into the above categories.
For example, where the issue is which is the best of several possible locations in a river bed for a discharge diffuser, early construction unrelated to the diffuser could not affect the ultimate resolution of that issue.
3.
No construction could begin sooner than 30 days after the initial decision. This gives parties time to evaluate the decision and file papers before the Appeal Board.
C.
On appellate review:
1.
If an appeal is taken from, the decision on effectiveness, 30 more days would be added to the period during which no construction l
could occur. During this total of 60 days the Appeal Board would be required to resolve the effectiveness question on j
appeal. The Apocal Board would use the same criteria for i
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effectiveness as the Licensing Board, and the appeal would be limited to the effectiveness issue alone. Of course, if the f.icensing Board had deferred effectiveness in its Initial Decision, these periods would be irrelevant, since construction could not begin until the date set by the Licensing Board.
It could begin earlier only if the Appeal Board reversed the Licensing Board's deferral.
Since it has the power
.to make such a reversal, the Appeal Board can, under Option A, take itself off the. " critical path" -- that is, remove itself as an cbstacle to construction.
2.
To allow for Commission review of effectiveness, a suitable period of deferral would be added at the conclusion of the Appeal Board's review.
3.
Whenever effectiveness is deferred, the Appeal Board would resolve first, on the merits, all issues which had caused the deferral.
It would decide other issues later. Construction
'could begin if and when the effectiveness-related issues were satisfactorily resolved on appeal.
Ootion B - A Final Decision on LWA Issues Prior to Construction This option requires a final decision on the merits for construction-i related issues before construction can begin.
In essence, the Licensing Board would decide construction-related issues first, those issues would be taken up immediately on appeal, and construction would begin only after final appellate review of those issues. The issues are all those which, if resolved adversely to the applicant, would defeat the plant at 3
the site selected or be prejudiced by the early stages of construction.
They are _ generally the same as these now used for limited work authorizations (LWA)and LWA ) and similar to those used in the standard suggested 2
above in Option A for granting a stay. The main difference between this option and Option A is that here these issues are dMined in advance, and must be resolved on the merits before construction, whereas in Option A the issues are not defined in advance and construction depends upon whether effectiveness is stayed pending appeal.
Final decision is required on all issues related to the National Environmental Policy Act (NEPA) and all safety issues related to site suitability and constructicn of foundations. The NEPA issues would be addressed as they
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are now for the LWA).
For tne site safety issues, however, the review would go beyond the present site suitability report and determine tne design basis or bases for meeting the safety regulation pertinent to each issue. Thus, for each of the site safety issues, the staff and Licensing Board would complete in full the review currently included in the Safety Evaluation Report.
This added scope of review should assure that all site-related issues are completely addressed and should solidify 4
the basis for authori:ing construction. The site safety issues would include:
(1) Geography and Demography (2) Nearby Industrial Transportation and Military Facilities (3) Meteorology (4) Mydr: logy (5) Geology 3rd Seismology 4
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(5) Foundation Engineering
'(7) Quality ' Assurance (8) Any other issue which, in the opinion of the presiding officer, is related to the commencement of construction at the site.
The remaining issues on the construction permit (CP) would be heard by the Licensing Board while the above issues were on appeal. The remaining CP issues would include:
(1) Design Criteria for Structures, Components, Equipment and Systems (2). Reactor and Reactor Coolant System (3) Engineered Safety Features (4) Instrumentation and Controls (5) Electrical Power (6) Auxiliary Systems (7) Steam and. Power Conversion Systen (8) Radioactive Waste Management (9) Radiation Protection (10) Conduct of Operations (11) Initial Tests and Operations (12) Accident Analysis (13) Technical Specifications After appellate affinnance of the LWA issues, the applicant could do all the work a.uthorized by LWA) and LWA. This includes site clearing, 2
preparation and excavation (LWA)) and safety-related foundations (LWA )*
2 Before this work is completed, the Licensing Board should have ample time to complete its hearing on the balance of the issues necessary for
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the construction pennit. The grant of an LWA, which allows work on y
safety-related foundations, signifies clearly that all issues related to the safety of the site have already been resolved satisfactorily.
Option B would operate as follows:
a.
At the hearing:
The Licensing Board takes up the LWA issues first.
This is already the-Board's practice where an LWA is requested. When decided, these issues
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are immediately rice for appellate review. The Board's decisien is not immediately effective. After deciding the LWA issues, the Licensing Board turns to the rest of the issues necessary for the CP. The LWA issues are processed on appeal while the rest of the CP issues are heard by the Licensing Board.
If the intervenor's attorney is unable to pursue the appeal and continue the CP hearing at the same time, the Licensing' Board suspends the CP hearing to allow for briefing time. The CP decision is nonna11y made by the Licensing Board before construction ends under the LWA.
If the applicant does not request a separate decision on LWA issues, effectiveness awaits appellate review of the CP decision.
The issues which belong in the LWA category have been defined above, and i
are based upon actual experience in hearings. The Board rules on any l
dispute over which issues belong in the LWA category.
b.
On appellate review:
1.
The Appeal Board conducts an immediate review of the LWA issues, including disputes over which issues should be in the LWA catego y.
Upon completing its review en the merits and rendering its opinion, the Appeal Board can authorize construction 11
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S to begin.
It can do so notwithstanding a remand for further proceedings on some minor issue (e.o., additional stations to monito'r the effect of construction on muskrats).
Basically, the requirement is that all construction-related issues on appeal must go through at least one merits review before construction.
2.
To allow for Conmission review, an additional period of deferral is added at the conclusion of the Appeal Board's review. The Concission decides whether :o accept review during this period.
If the Commission does accept review it can defer construction until the review is completed. Under this option, the Commission could review all construction-related issues on the merits before construction begins.
Ootion C - Receal the Immediate Effectiveness Rule This option prevents any construction prior to the agency's final decision on all issues.
It does not rely upon stays to discriminate among cases, upon parties or the Licensing Board to identify the grounds for a stay, or upon an LWA or other device to identify certain issues for early treatment.
The Commission would be able to pass on the merits of all issues before construction begins. Since construction does not begin until all CP issues are affirmed on appeal, the LWA procedures would not be used.
Option C would operate as follows:
a.
At the hearing:
l The Licensing Board conducts its usual review, but effectiveness does l
not attach to its CP authorization. Since construction cannot begin on l
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the strength of an LWA, there is little incentive to seek one. The only possible advantage is to ' reduce the time required for the Appeal Board to review the CP decision.because by reviewing the LWA issues earlier fewer issues would remain on appeal of the CP.
b.
On~ appellate review:
1.
The Appeal Board must resolve all issues on the merits before
, construction begins.
If an issue is remanded for further proceedings, the Appeal Board can, as in Option B above.
decide whether to allow construction pending the remand.
2.
To allow for Commission review, an additional period of deferral is added at the conclusion of the Appeal Board's review. The Commission decides whether to accept review during this period.
If the Commission does accept review, it can defer construction until the review is completed. Under this option the Commission could review all issues in the case before construction begins.
Ootion D - Retain the cresent system, but with sienificantly loosened standards for obtainino a stay Under this approach, the standards for determining whether to grant a stay could be the same as those articulated under Option A, above -- whether the party seeking the stay has demonstrated substantial, non-frivolous arguments for the correctness of its position on the merits of its appeal. The functional effect would be similar to that outlined for Option A, except that under this approach, 4
it would be necessary for a party to seek a stay, whereas under Option A, the Board would examine the issue of effectiveness without the need for a party to 13
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make such a request. This would include a period of thirty (30) days after the date of service of the initial decision during which no construction could be commenced, so as to allow a party.taking an appeal to prepare and present a stay request to the Appeal Board.
Ootion E.
Retain the cresent system unchanced (See discussion of presentsystem,above.)
Other Devices In addition to the above options, the Commission is considering two devices -- the increased use of referred rulings, and Co e.ission Bonitor-ing of !.icensing Board pecceedings -- which could aid either the present j
system or the implementation of any of the above options. These natters are described both in flVREG-0646 and in flDREG-0548, the study of the Commission's appellate _ system.
(See " Supplementary Infomation", above.)
Persons commenting on these devices may wish to refer to both studies.
Date of Imolementation The above options, if adopted, would be implemented by applying them to all applications for construction pennits which have not begun hearings.
Pursuant to the Atomic Energy Act of 1954, as amended, the Energy Reorgani-zation Act of 1974, as amended, and 5 U.S.C. 5553, notice is hereby given that ~ adoption of one of the following alternatives is contemplated.
A.
Oction A 1.
10 CFR H 2.750 is revised to read as follows:
l 2.750 Ini-fal decision and its effect.
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(a) The presiding officer, after hearing, will render an initial decision which will constitute the final action of the Commission forty-five (45) days after its date, when it authorizes the issuance or amendment of a license for a facility, or thirty (30) days after its date in any other case, unless exceptions are taken in accordance with section 2.762, or the Commission directs that the record be certified to it for final decision.
(b). Where the public interest so requires, the Commission mai direct that the presiding officer certify the record to it without an initial decision, and may:
(1)
Prepare its own initial decision; or (2) Omit an initial decision on a finding that due and timely execution of its functions imperatively and unavoidably so requires.
(c) An initial decision will be in writing and will be based on the whole record and supported by reliable, probative, and substantial evidence. The initial decision will include:
(1)
Findings, conclusions and rulings, with the reasons or basis for them, on all material issues of fact, law, or discretion presented on the record; (2) All facts officially noticed and relied on in making the decision; (3) The appropriate ruling, order or denial of relief with the effective date; 15 l
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(4) A separate finding, together with a statement of the basis for it, establishing the date upon which any construction authorized by the initial decision may begin; (5) The time withirt which exceptions to the decision and a brief in support of them may be filed, the time within which briefs in support of or in opposition to exceptions filed by another party may be filed and, in the case of an initial decision which may become final in accordance with paragraph (a) of this section, the date when it may become final.
2.
'10 CFR 9 2.764 is revised to read as follows:
i 2.764 The commencement of' construction under an initial decision authori:-
inq construction or directing -issuance or amendment of a construction Demit.I (a) Under an initial decision directing the issuance or amendment of a construction pemit or a construction authorization for a production or utilization facility subject to the provisisons of 151.5(a) of this chapter.
(1) No person shall effect commencement of construction (as " commence-ment of construction" is defined in 9 50.10(c) of this chapter) unless specifically so authorized by the Atomic Safety and Licensing Board.
If the Board finds that no substantial question remains for appeal on an 2
issue related to the commencement of construction during appellate review, the Board shall authorize commencement of construction at the expiration of thirty (30) days after the date of service of the initial
'deci sion.
In the event an appeal under this chapter is taken from such I The temporary suspension of this rule in certain proceedings and related matters are addressed in Appendix 3 to this part.
2Such issues include, for example: alternate sites, site saitability, and the overall NEPA cost-benefit balance.
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an initial decision authorizing commencement of construction, construction shall'not commence within ninety (90) days after the date of service of t se initial decision.
If the Atomic Safety and Licensing Board, the Atomic Safety and Licensing Appeal Board,.or the Commission finds that there is a substantial question on an issue related to the commencement of such construction, construction shall not commence until the merits of that issue are resolved on appeal. A " substantial question," for these purposes, does not require the Board to find that its own ruling may be incorrect, but rather that the party which did not prevail on the issue has demonstrated substantial, non-frivolous arguments which could be raised on appeal.
(b) The Director of Nuclear Reactor Regulation or the Director of Nuclear Material' Safety and Safeguards, as appropriate, shall where authorized by an initial decision issue a construction pennit or an amendment thereto or a construction authorization within 10 days after i
the date upon which commencement of construction is authorized pursuant to this chapter.
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3.
A new paragraph 3 is added to section 2.785(b) of 10.CFR Part 2 to ' read as follows:
i 2.785 Functionc of Atomic Safety and Licensino Acceal Boards.
(b) * * *
(3) In a proceeding on appeal from an initial decision by an Atomic Safety and Licensing Beerd directing the issuance or amendment of a construction pennit or construction authorization for a nuclear pcwer reactor or testing facility:
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'(1) The Atomic Safety and Licensing Appeal Board shall, within 60 days after the date of service of the initial decision, complete its review of exceptions to that part of the initial decision of the Atomic Safety and Licensing Boar,d which, under i 2.764 of this part, establishes the date upon which construction may commence.
If no such exception is filed, the Atomic Safety and Licensing Appeal Board shall conduct any review of such part of the initial decision within 30 days of the date of service of that decision. The Atomic Safety and Licensing Appeal Board may extend these periods, but if it does so, it shall at the same
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time extend, by an equivalent amount, the thirty- (30-) day and ninety-(90-) day periods described in 52.764(a).
(ii) After completing the review in (i) above, the Atcmic Safety and Licensing Appeal Board shall, if it finds that there is a substantial question on an issue related to the commencement of construction, undertake review on the merits of that issue on an expedited basis, and shall order that construction not concence pending ccc:pletion of that expedited review.
4.
A new paragraph (i) is added to 10 CFR $ 2.788 to read as follows:
i 2.788 Ltays of decisions of oresidina officers and Atomic Safety and Licensing Aeoeal Boards pendino review.
(i) The provisions of this section shall not apply to an initial decision directing the issuance or amendment of a constructhn permit or
.,:nstruction authorization.
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B.
Option B 1.
10 CFR i 2.761a is revised to read as follows:
6 2.761a Separate hearings and decisions.
In a proceeding on an application for a construction pennit for a utilization facility which is subject to i 51.5(a) of this chapter, and is of the type specified in il 50.21(b)(2) or (3) or 50.22 of this chapter or is a testing facility,. the presiding officer shall unless the parties agree otherwise or the rights of any party would. be prejudiced thereby, commence a hearing on issues covered by i 50.10(e) und Part 51 of this' chapter as soon as practicable after issuance by the staff of its final environmental impact statement and its final report on the site safety issues described in i 50.10(e), but no later than thirty (30) days after issuance of such statement and report, and complete such a hearing and issue an initial decision on such matters.
Prehearing procedures regarding issues covered by Part 51 and F 50.10(e) of this chapter, including any discovery and special prehearing conferencas and prehearing conferences as provided in il 2.740, 2.740a, 2.740b, 2.741, 2.742, 2.751a, and 2.752, shall be scheduled accordingly. The provisions of il 2.754, 2.755, 2.760, 2.762, 2.763 and 2.764 shall apply to any proceeding conducted and any initial deci: ion rendered in accordance with this section. This section shall not preclude separate hearings and decisions on other particular issues.
2.
10 CFR i 2.764 is revised to read as follows:
1 1 2.764 Beginning construction under an initial decision directino issuance or amendrent of a construction oennit or a const-uction authorization.3 "The tenporary sus ension of this rule in certain proceedings and related matters are sdcressed ir. Appendix B to this part.
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(a)(1)
In a proceeding in which a construction' authorization is granted by an initial decision rendered pursuant to i 2.761a of this
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part, no person shall effect ccnmencement of construction (as " commencement of construction" is defined in i 50.10(c) of this chapter) or conduct any of the activities des'cribed in i 50.10(e)(1) within 30 days after the date of service of the decision by the Atomic Safety and Licensing Appeal Soard reviewing on the nerits any appeal filed under i 2.76? from that initial decision.
If, after such a review, further proceedhp are ordered, no person shall effect commencement of construction until authorized to do so by the Atomic Safety and Licensing Appeal Board.
In granting or denying such an authorization, the Atonic Safety and Licensing Appeal Scard shall consider the relative importance of the matter or matters remanded, and the extent to which the commencement of construction at the site during the pendency of the remand would cause serious environmental impacts to occur at the site or assets to be placed at risk.
If a petition for review is filed with the Commission regarding this authori:ation, construction shall not commence within thirty (30) days after the date of service of the decision by the Atomic Safety and Licensing Appeal Board which grants the authorization.
(2) In a proceeding in which no cons truction authorization pursuant to i 2.761a is granted, and in which an initial decision directs the issuance or amendment of a construction permit, no person shall effect commencement of construction (as defined in 650.10(c) of this chapter) within:
(i) thirty (30) days after the date of service of the decision by the Atomic Safety and Licensing Appeal Board reviewing on the merits at
-least that portion of any apoeal from the initial decision which contains exceptions relating to the issues described by i 2.761a, or (ii) thirty (30) days after the date c' the initial decision if no appeal from the l
i initial decision is taken urder this chapter.
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(3) The ' initial decisions described in subparagraphs (1) and (2) above are appealable immediately in accordance with 6 2.762 of this chapter.
(4) The Commission, pursuant to its appellate review under Part 2 of this chapter, may.in its discretion extend any of the thirty- (30-)
day periods described in (1) and (2) above.
(b) Where so authorized by an initial decision, the Director of Nuclear Reactor Regulation or the Director of Nuclear fiaterial Safety and Safeguards, as appropriate, shall issue a construction permit or an amendment thereto or a construction authori:ation, as apprcpriate, within 10 days after the date upon which commencement of construction is authorized pursuant to paragraph (a) above.
3.
A new paragraph (3) is added to 12.785(b) of 10 CFR Part 2 to read as follows:
i 2.785 Functions of Atomic Safety Licensine Acetal Boards.
(b) * * *
(3) In a proceeding on appeal from an initial decision by an Atomic Safety and Licensing Board directing the issuance 'of a construction pennit, the Atomic Safety and Licensing Appeal Board may in its discretion issue an early partial decision confined to the issues described in i i
2.761a.
4.
A new paragraph (i) is added to 10 CFR I 2.788 to read as follows:
i i 2.788 Stays of decisions of oresidinc officers and Atomic Safety and Licensing Aeoeal Boards :endtno review.
e, I
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(i) The provisions of this section shall not apply to an initial decision directing the issuance or anendment of a construction permit or a construction authorization.
, 5.
Section 50.10(e) of 10 CFR Part 50 is amended to read as follows:
i 50.10 License required.
(e)(1)
The Director of Nuclear Reactor Regulation may authorize an applicant for a construction pennit for a utilization facility which is subject to i 51.5(a) of th.is chapter, and is of the type specified in il 50.21(b)(2) or (3) or i 50.22 or is a testing facility, to conduct tb. following activities:
(1) Preparation of the site for construction
. of the facility (including such activities as clearing, grading, construction of temporary access roads and borrow areas); (ii) installation of temporary construction support facilities (including such items as warehouse and shop facilities, utilities, concrete mixing plants, docking and unloading l
facilities,' and con.struc. tion support buildings); (iii) excavation for facility structures; (iv) construction of ' service facilities (including such facilities as roadways, paving, railroad spurs, fencing, exterior utility and lighting systems, transmission lines, and sanitary sewerage i
treatment facilities); (v) the installation of structural foundations, including any necessary subsurface preparation, for structures, systems r
and components which prevent or mitigate the consequences of postulated accidents that could cause undue risk to the health and safety of the
-public; and' (vi) the construction of structures, systems, and components which do not prevent or mitigate the consequences of postulated accidents that.could cause undue risk to the health and safety of the public. No such authorization shall be granted unless the staff has completed a 22 t
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j final environmental impact statement on the issuance of the construction permit as required by Part 51 of this chapter, and has completed its safety review so as to determine the design basis or bases for meeting the safety regulation pertinent to each of the following site safety issues:
1 (1) Geography and Demography (2) Nearby Industrial, Transportation and Military Facilities (3) Meteorology
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(4)' Hydrology (5) Geology and Seismology (6) Foundation Engineering (7) Quality Assurance (2) Such an authorization shall be granted only after the presiding officer in the proceeding on the construction permit application has made all the findings required by i 51.52(b) and (c) of this chapter to be made prior to issuance of the construction permit for the facility, and has determined that there are no unresolved safety issues which J
relate to the installation of the structural foundations described in (e)(1)(v) above which would constitute good cause for withholding the authorization, and has made the findings under 9 50.35 of this part required for the issuance of the construction pemit with respect to the following site safety issues:
(i) Geography and Demography (11) Nearby Industrial, Transportation and Military Facilities (iii) Meteorology (iv) Hydrology
~(v) Geology and Seismology 9
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(vi) Foundation Engineering,
(vii) Quality Assurance (viii) Any other is'ue which, in the opinion of,the presiding officer, isrelated to the commencement of construction at the site. '
C.
Option C 1.
10 CFR I 2.761a is deleted, and Appendix A to 10 CFR Part 2 is revised accordingly.
2.
10 CFR 5 2.764 is amended to read as follows:
i 2.764 Commencement of construction under an initial decision directino issuance or amendment of a construction cer nit.
(a) In a proceeding in which an initial decision directs the issuance or amendment of a construction pennit, no person shall effect commencement of construction (as " commencement of construction" is defined in i 50.10(c) of this chapter) within thirty (30) days after the date of service of the decision by the Atomic Safety and Licensing Appeal Board reviewing on the merits any appeal under i 2.762 from the initial decision.
If, after such a review, the initial decision is remanded for further proceedings before the Atomic Safety and Licensing Board, no person shall effect commencement of construction within thirty (30) days after the date set for commencement of construction by the Atomic Safety and Licensing Appeal Board.
In setting this date, the l
t Atomic Safety and Licensing Appeal B'oard shall consider the relative importance of the matter or matters remanded, and the exten't to which l
the commencement of construction at the site during the pendency of the remand would cause assets to be placed at risk or serious environmental sacts to oc:ur at the site.
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.a.
--e.
l (b) If no appeal is taken from the initial decision in paragrapn (a) above, no person shall effact commencement of construction within thirty (30) days after the date of any decision by the Atanic Safety and Licensing Appeal Board reviewing the initial decision sua sconte, or within thirty (30) days after the date of the initial decision if no review sua sponte is undertaken.
(c) The initial decisions described in paragraph (a) above are aopealable immediately in accordance with ! 2.762 of this chacter.
(d) The Commission, cursuant to its accellate review under Part 2 of this chapter, nay in its discretion extend any of the thirty- (30-)
days periods in paragraph (a) above.
(e) Where so authorized by an initial decision, the Director of Nuclear Reactor Regulation or the Director of Nuclear Material Safety and Safeguards, as appropriate, shall issue a construction permit or an amendment thereto within 10 days after the date upon which the commencement of construction is authorized pursuant to paragraphs (a), (b) and (d) above.
3.
A new paragraph'(i) is added to 10 CFR i 2.788 to read as follows:
i 2.788 Stays of decisions of oresidina officers and Atomic Safety and Licensing Aeoeal Boards pendina review.
(i) The provisions of this section shall not apply to an initial decision directing the issuance or amendment of a construction pennit.
5.
Section 50.10(e) of 10 CFR Part 50 is deleted.
9 0.
Ootion D.
1.
10 CFR 92.764 is amended -to read as follows:
~12.764 Commencement of constructica under an initia' dec4 tien "directinc issun9ce ca ama9c9 eat c' a constructior ter,it - a Construction au'.cori ltica.
(a) Under an initial decision directing the issuance or amendment of a construction permit or a construction authorization, no person
. shall effect commencement of construction (as " commencement of const'ruction" is defined in 550.10(c)) within thirty (30) days after the date of service of the initial decision. In the event an appeal under Part 2 of this chapter is taken from the initial decision, no person shall effect commencemer.L af construction within ninety (90) days after the date of service of the initial decision.
(b) The Director of Nuclear Reactor Regulation or the Director of Nuclear Materials Safety and Safeguards, as appropriate, shall where so authori:ed by an initial decision issue a construction permit, or an amendment thereto, or a construction authorizati:n within ten (10) days after the expiration of the periods described in paragraph (a) of t;ils section.
2.
In Section 2.788 of 10 CFR Part 2, paragraph (e) is revised and a new paragraph (i) is added to read as follows:
I 2.788 Sta/s of decisions of cresidino officers and atenic Safety and Licensino Acceal Boards cending review.
(e) Except as provided in paragraph (i) of this section, the Commission, the Atomic Safety and Licensing Appeal Soard, or the presiding officer, in determining whether to grant or deny an application for a stay, will censider:
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(1) whether the moving party has made a strong
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showing that it is likely to prevail on the merits; (2) whether the party wi11 be irreparably injured unless a stay is granted; (3) whether tne granting of a stay would harm other parties; and (4) where the public interest lies.
(i) an application for a stay pending appeal of an initial i
decision directing issuance or amendment of a construction permit or a construction authori:ation shall be granted if the appeal presents a substantial question.concerning an issue related to the commencement of construction.
Ootion E.' Retain the present system unchanged. Relevant portions of the Commission's existing regulations ara as follows:
12.760
. Initial decision and its effect.
(a) After hearing, the presiding officer will render an initial decision which will constitute the final action of the Commission forty-five (45) days after its date when it authorizes l
the issuance or amendment of a licen;e or limited work authorization for a facility, or 30 days after its date in any other case, unless exceptions are taken in accordance with 12.762 or the Commission directs that the record be certified to it for final decision.
(b) Where the public interest so requires, the Commission may direct tnat the presiding officer certify the -eco-d to it 9
l w4:n:ut an initial decision, and ay:
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(1) ' Prepare its own initial decision, which will become final unless exceptions are' filed; or (2) Omit an initial decision on a finding that due and. timely execution o'f its functions imperatively and unavoidably so requires.
(c) An initial decision will be in writing and will be based on the whole record and supported by reliable, probative, and substantial evidence. The initial decision will include:
(1)
Findings, conclusions and rulings, with the reasons or basis for them, on all material issue of fact, law, or discretion i
presented on the record; (2) All facts officially noticed and relied on in making the decisions; (3) The appropriate ruling, order or denial of relief with the effective date; (4) The time within which exceptions to the decision and a brief in support of them may be filed, the time within.which briefs in support of or in opposition to ex'ceptions filed by another party may be filed and, in the case of an initial decision which may beccme final in accordance with paragraph (a) of this section, the date when it may become final.
52.760a Initial decision in contested croceedines on acclications for facility coeratinc licenses.
In any initial decision in a contested proceeding on an applica-tion for an operating license for a production or utili:ation facility, the presiding of'icer shall =ake findings of fact 23 wwn v
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-and conclusions of law on the matters put into controversy by the partf as-to the proceeding and on matters which have been determined to be the issues in the proceeding by the Commission or the' presiding offi ar. Patters not put into controversy by the partiis will be examined and decided by the pre:fding officur only where he or she determines that a serious safety, environmental, or common defense and security matter exists. Depending on the resolution of those matters, the Director of Nuclear Reactor Regulation or Director of Nuclear Vaterial Safety and Safeguards, as appropriate, after making the requisite findings, will issue, deny, or appropriately condition the license.
4 62.761 Expedited decisional procedure.
(a) The presiding officer may determine a proceeding by an order after the conclusion of a hearing without issuing an initial decision, when:
(1) All parties stipulate that the initial decision may be emitted and waive their rights to file exceptions, to request oral argument, and to seek judicial review; (2) No unresolved substantial issue of, fact, law, or discretion remains, and the record c.learly warrants granting the relief requested; and (3) The presiding officer finds that dispensing with the issuance of the initial decision is in the public interest.
(b) An order entered pursuant to paragraph (a) of this sec fon shall be sub,*ect to review by the Commission on its cwn metion w1:nin :n'-ty (23) days after its date.
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o (c) An initial decision may be made effective immediately,
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subject to review by the Commission on its own motion within thirty (30) days after its
te, except as otherwiss provided in this chapter, when:
(1) All parties stipulate that the initial decision may be f
made effective immediately and waive their rights to file exceptions, to request oral argument, and to seek judicial review; (2) No unresolved substantial issue of fact, law, or discretion remains and the record clearly warrants granting the reitef requested; and (3) The presiding officer finds that it is in the public interest to make the initial decision effective immediately.
(d) The provisions of this section do not apply to an initial decision directing the issuance or amendment of a construction pemit or construction authorization, or the issuance of an operating license or provisional operating authorization.
62.761a Seoarate hearines and decisiens.
In a proceeding on an application for a construction pemit for a utilization facility which is subject to 551.5(a) of this chapter, and is of the type specified in 1950.21(b)(2) or (3) or 50.22 of this chapter or is a testing facility, the presiding officer shall, unless the parties agree otherwise or the rights of any party would be prejudiced thereby, commence a hearing en issues covered by 550.10(e)(2)(ii) and Part 51 of this cha nea as soon as practicable after issuance by the N
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staff of its final environrental impact statement but no later than thirty (30) days after issuance of such statement and complete such a hearing and issue an initial decision on such matters. Prehearing procedures regarding issues covered by Part 51 and $50.'10(e)(2)(ii) of this chapter, including any discovery and special prehearing conferences and prehearing conferences as provided in 192.740, 2.740a, 2.740b, 2.741, 2.742, 2.751a, and 2.752, shall be scheduled accordingly. The provisions of 562.754, 2.755, 2.760, 2.762, 2.763, and 2.764(a) shall apply to any proceeding conducted and any initial decision rendered in accordance with this section.
paragraph 2.764(b) shall not apply to any partial initial decision rendered in
~accordance with this section. This section shall not preclude separate hearings and decisions en other particular issues.
52.764 Immediate effectiveness of initial decision directina issuance or amendment of construction oermit or coerating license.
l (a) An initial e,ision directing the issuance or amendment r
of a construction permit, a construction authorization or an operating license shall be effective immediately upon issuance unless the presiding officer finds that good cause has been shown by a party why the initial decision should not become innediately effective, subject to -the review thereof and further decision by the Cannission upon exceptions filed by any party ' pursuant to 52.762 or upon its ewn motion.
(b) The Director of Nuclear Reactor Regulation or Director of Nuclear Material Safety and Safeguard:, as appropriate, 31 c:
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-notwithstanding the filing of exceptions, shall issue a construction
' permit, a construction authorization, or an-operating license, or amendments thereto, authorized by an initial decision, within ten (10) days from the date of issuance of the decision.3/
$2.785 Functions of Atomic Safety and Licensine Aeoeal Board.
(a) 1he Commission has authorized Atomic Safety and Licensing Appeal Board to exercise the authority and rarform the review functions which would otherwise have been exercised and per-formed by the Ccmmission, including, but not limited to,- those under 992.760-2.771, 2.912, and 2.913 in (1) proceedings on applications for licenses under Part 50 of this chapter and (2) such other licensing proceedings under the regulations in this chapter as the Commission may specify.
(b)(1)
In the proceedings described in paragraph (a) of this section, the Atomic Safety and Licensing Appeal Board will also exercise the authority and perform the functions which would otherwise have been exercised and performed by the Commission under 552.711, 2.717(a), 2.718(1), 2.720(f), 2.730, 2.742(b), 2.743(b), 2.752(a) and (c) and Subpart I, except those functions referred to in $2.905(c),(e)(2), (g), and (h)(2).
(2)
In a proceeding on an application for an op.erating
' license where the Atomic Safety and Licensing Appeal Board determines that a serious safety, environmental, or common defense and security matter exists that has not been raised by tre parties, it may give aporopriate consideration to that ra::er.
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The tem:cesey suspension cf nis rule in certain preceedings anc L
. re'ated matters are addressed in Appendix B to this part.
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.,.(c)
In the proceedings described in paragrap'h (a) of this section, the Atomic Safety and Licensing Appeal Board shall exercise the authority and perfom,the functiens delegated to it subject to the provisions and limitations of the referenced sections and subpart.
Except as provided in 52.786, any action taken by the Atomic Safety and Licensing Appeal Board pursuant to its delegated authority shall have the same force and effect and shall be made, evidenced, and enforced in the same manner as actions of the Commission.
(d)
In the proceedings described in paragraph (E) of this section, an Atomic Safety and Licensing Appeal Board may, either in its discretion or on direction of the Commission, certify to the Corc.ission for its determination major or novel i;uestions of policy, law or procedure.
62.788 Stays of decisions of presidino officers and Atomic Safety and Licensing Acceal Boards cendino review.
(a) Within ten (10) days after service of a decision or action any party to the proceeding may file an application for a stay of the effectiveness of the decision or. action pending filing of and decision on an appeal or petition for review.
Except as provided in paragraph (f) of this section, such an f
application may be filed with the Commission, Atomic Safety and Licensing Appeal Board, or the presiding officer.
(b) An application for a stay shall be no longer than ten (10) pages, exclusive of affidavits, and shall contain the following:
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(1) A concise surr.ary of the decisio. or action which is
' requested to be stayed; (2) A concise statement of the grounds for stay, with reference to the factors specified in paragraph (e) of this section; (3)
In the case of an application to the Comnission for stay-of decisions or actions by an Atomic Safety and Licensing Appeal Board, a statement where (including record citation, if available) a stay was requested from the Appeal Board and denied. If no such request was made of the Appeal Board, the application should state why it could r.ot h?ve been made; and
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(4) To the extent that an application for t stay relies on facts subject to dispute, appropriate references to the record or affidavits by knowledgeable persons.
- (c) Service of an application for a stay c.n the other parties shall be by the same method, e.g. telegram, mail, as the method for filing the application with the Commission. Atomic Safety and Licensing Appeal Board, or the presiding officer.
(d) Within ten (1C) days after service of an application for a stay under this section, any party may file an asnwer sup-porting or opposing the granting of a stay. Such answer shall be no longer than ten (10) pagts exclusive of affidavits, and should concisely address the matters in paragraph (b) of this section to the extent appropriate.
No further replies to answers will be entertained. Filing of and service of an answer on the other parties shall be by the same method, e.g.
telegram, mail, as the method for filing the application for the stay.
34
(e)
In determining whether to grant or deny an application for a stay, the Commission, Atomic Safety and Licensing Appeal Board, or presiding officer will consider:
(1) Whether the moving party has made a strong showing that it is likely to prevail on the merits; (2) Whether the party will be irreparably injured unless a stay is' granted; (3) Whether the granting of a stay would ham other parties; and (4) Where the public interest ies.
(f) An application to the Commission for a stay of a decision or action by an Atomic Safety and Licensing Appeal Board will be denied if a stay was not, but could have been, sought before the Appeal Board. An application for a stay of a decision or action of a presiding officer may be filed before either the Atomic Safety and Licensing Appeal Board or the presiding officer, but not both at the same time.
(g) -In extraordinary cases, where prompt application is made under this section, the Commission, Atomic Safety and Licensing Appeal Board, or pres... g officer may grant a temporary stay to preserve the status quo without waiting for filing of any answer. The application may be made orally provided the application is promptly confirned by telegram. Any party applying under this paragraph shall make all reasonable efforts to inform the other parties of the application, orally if made orally.
s iC
A party may file an application for a stay of a decision (h)
As to a decision or or action granting or denying a stay.
action of a presiding officer the app 11 cation shall be filed As to a with the Atomic Safety and Licensing Appeal Board.
decision or action of the Atanic Safety and Licensing Appeal In Board the application shall be filed with the Commission.
each case the procedures and criteria.of paragraphs 2.788(a)-
(e). shall be followed.
Authority for Options A through E:
See 161, Pub. L.83-703, 68 Stat. 948 (42 U.S.C. 2201); Sec.102, Pub.
L.91-190, 83 Stat. 853 (42 U.S.C. 4332); Sec. 201, as acerded, Pub. L.
94-79, 89 Stat. 41,3 (42 U.S.C. 5841).
For the Commission, f
....b uA SAMUEL d. CHcLK Secretaryoftheqcmmission Dated at Washington, D.C.
thi day of May 1980.
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