ML20008F577
| ML20008F577 | |
| Person / Time | |
|---|---|
| Issue date: | 03/31/1981 |
| From: | Bickwit L NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Bradford P, Gilinsky V, Hendrie J NRC COMMISSION (OCM) |
| Shared Package | |
| ML19240A177 | List: |
| References | |
| REF-10CFR9.7 NUDOCS 8104210296 | |
| Download: ML20008F577 (21) | |
Text
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March 31, 1981 +.... Memorandum To: Chairman Hendrie Commissioner Gilinsky Commissioner Bradford Commissioner Ahearne h Leonard Bickwit, Jr. From: General Counsel
Subject:
SECY-81-182 -- DRAFT FEDERAL REGISTER NOTICE ON MODIFYING APPENDIX B TO PART 2 AS IT APPLIES TO OPERATING LICENSES ' Attached is a revision of the draft Federal Register notice incorporating modifications suggested by Commissioners Gilinsky and Ahearne. This is intended to serve as a basis for discussion of this subject at today's meeting on Revised Littensing Procedures. cc: SECY OPE OCA
Attachment:
As Stated
Contact:
Richard Parrish, OGC x43224 810.4220Qd h l t
NUCLEAR REGULATORY COMMISSION 10 CFR Part 2 Immediate Effectiveness Rule Ccamission Review Procedures for Power Reactor Operating Licenses AGENCY: Nuclear Regulatory Commission. ACTION: Proposed Rule. ~
SUMMARY
Following the accident at Three Mile Island, the Nuclear Regulatory Commission's staff devoted the bulk of its attention to investigating that accident and determining what remedial actions were required at operating raactors. As a consequence, the staff was unable to process applications for operating licenses at the normal pace. It now appears that the construction.of a number of nuclear plants will be completed before operating licenses can be issued. In an effort to reduce er eliminate the I q'(y' delay between completion of construction and issuance of an operating license, the Commission is considering modifying Appendix 1 fB to Part 2 of its regulations to either (a) reduce the length of f time between.a Licensing Board decision permitting fuel loading I i and low power testing or full power operation and the Commission's I decision to permit the Licensing Board 's decision to become { effective, or (b) allow a Licensing Board decision permitting t fuel loading, low power testing or full power operations to ! become immediately effective. \\s s l
2 DATES: Comment period expires (30 days after publication in the Federal Register). Comments received after (insert date on which comment period expires) will be considered if it is practical to do so, but assurance of consideration cannot be given except as to comments received on or before this date. ADDRESSES: All interested persons who desire to submit comments in connection with the proposed amendments should send them to the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555. Attention: Docketing and Service Branch. Copies of comments on the proposed amendments may be examined at the Commission's Public Document Room at 1717 H Street, N.W., Washington, D.C. FOR FURTHER INFORMATION CONTACT: Martin G. Malsch, Esq., Deputy General Counsel, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555 (202 634-1465). l SUPPLEM NTARY INFORMATION: Appendix B to Part 2 was adopted as i f an interim response to the Three Mile Island (TMI) accident in i i order to increase Commission supervision of adjudicatory licensing decisions involving power reactors. Under Appendix B, an initial l gr {. decision bv_an Atomic Safety and Licensing Board to grant a nuclear power reactor construction permit or to authorize issuance,cf an operating license does not become e##ective until_pr*h th e Atomic Safety and Licensing Appeal Board and the Commission hav_e reviewed daat decision and decided that it shculd become effective.
5 3 The review process contained in Appendix B nominally postpones the issuance of operating licenses for close to three months beyond a favorable Licensing Board decision. the Commission reassigned Following the Three Mile Island accident, most of its staff who had been reviewing applications seeking authorization to construct or operate nuclear power reactors to and such as investigating the cause of the accident other tasks, As 4 developing new regulations based on the lessons learned. 7 direct result of these reassignments it appears that, if the licensingreviewprocessisnotaltere8fconstructionofanumber lg s of plants will be finished prior to the issuance of an operating By reducing the length of time taken to determine license. Board decision should become effective or by whether a Licensing -allowingaLicensinaBoarddecisiontobecomeimgediatelyeffective, the Commission hoces to reduce or eliminate die delay between_ completion of construction and issuance of an operating license. The Commission has now determined that substantive licensing requirements are sufficiently settled in light of the numerous studies of TMI and regulatory actions taken in response thereto j the full Appendix B reviews of operating license decisions that are no longer necessary.,1) Therefore, in an effort to avoid l unwarranted and expensive delays, the Commission hereby proposes l to adopt one of two alternative modifications to Appendix B r.s it applies to operating license decisions. 4 The continued application of Appendix B to construction 1/ permit decisions will be considered by the Commission in a See 45 Fed. Reg. 34279 separate rule-making proceeding. (May 22, 1980).
4 Summary of Appendix B Procedures As it presently operates, Appendix E provides for both Appeal Boord and Commission review of Licensing Board decisions in favor of granting operating licenses. According to the Aeoendix 3 issuance of such licenses w)ill be thereby pos'tponed for Os s ch edule, u a period of about 60 days for Appeal Board review and a further period of about 20 days for the Commission review. The Commission and Appeal Board reviews focus on possible reasons for delaying the effectiveness of the Licensing Board decision pending a further, more detailed review of the record. In instances where (wild (SW IA a further delay is not imposed, the license _m_av issue within 80 g 4 a days of the Licensing Board decision. The time periods available to the Appeal Board and the Commission can be extended as necessary. Prior to the TMI accident, Licensing Board decisions permitting low or full cower operations generally became effective 10 days af ter they were issued. Ootions for changina Aopendix B The two options which are being considered for changing the present system are as follows: OPTION A - Expedited Commission Review This option would entail expedited Commission review of Licensing Board decisions in order to determine whether the decisions should become effective or whether a
5 further delay should be 4 7-ead randino a more thorough VG review of the Licensing on=-d'e da-4e4mn. Th N aim 3 ~M d would be t_or Commission revie(w ordinarily to be completed A within 10 days of a fuel loading / low power testing decision and within 30 days of a full power operating license decision and would be performed regardless of whether any party requested a stay. In the event that these time limits are not met by the Commission, the Commission would state the reasons for its further consideration and the time required for a stay decision, and the Licensing Board's initial decision would be l'c*y) V6 considered stayed pending the Commission's ruling. The n-Appeal Board would not become involved in this expedited review and the matter would ordinarily be decided by the Commission withcut the need for filings from the parties. l It is intended that Appeal Board review of any stay applications filed pursuant to 10 CFR 2.788 will begin concurrently with this Commission review. However, as noted, issuance of a license will no longer await an (sw.pos e. <) Appeal Board decision. An Appeal Board could* stay issuance of a license aopr)oved by the Commission in pe+ss (a.m (r 1 s g y which case operation of the plant, permitted by the Commission, would cease pending resolution of the issue
6 that prompted the stay. This scenario is made possible by the f act that Appeal Board review would have the benefit of filings from the parties and would proceed under the traditional stay criteria contained in 10 CFR 2.788, while the Commission's stay review would focus narrowly on significant TMI-related policy issues identified by the Commission from its own review of the case. Depending upon the type of license being reviewed, (wd T'/4 Option A_could provide a time savings of 50 or 70 days x over Appendix B in the normal case where a stay is not granted. Of course, decision times will vary under either system depending upon the complexity of the Case. Granting Immediate Effectiveness Concurrent with OPTION B Appeal Board and Commission Review This option would allow favorable Licensing Board i decisions to become immediately effective. The license would then issue, pursuant to 10 CFR 2.764, within 10 days of the initial decision. Appeal Board and Commission stay review would follow under current Appendix B procedures. l l l
7 The potential time savings under this option wonld be at least the 70-day difference between Appendix B gpg procedures and immediate effectiveness (license issued within 10 days of favorable decision). Again, this pericd could vary depending upon the complexity of the case at issue. Under either option, the standard Appeal Board review of the merits of Licensing Board decisions, as opposed to the stay determinations at issue here, would continue as before. The Commission wishes to emphasize that the proposed modifications of Appendix B are not intended to allow any reduction in the overall cuality of NRC adjudicatory proceedings. The changes, if adopted, would be applicable to ongoing NRC adjudications. REGULATORY FLEXIBILITY ACT: In accordance with the Regulatory Flexibility Act of 1980, 5 U.S.C. 605(b), the Commission hereby certifies daat this rule will not, if promulgated, have a significant economic impact on a substantial nunber of small entities. This rule affects the Commission's Rules of Practice and procedures by permitting expedition of the licensing process. Pursuant to the Atomic Energy Act of 1954, as amended, the Energy Reorganiration Act of 1974, as amended, and section 553 of the United States Code, notice is hereby given that adoption of the following amendments to 10 CFR Part 2 are contemplated.
8 Rion A The Appendix B to Part 2 is amended by revising the first .regraph in Section 1 and the entire text of Section 2 and !ction 3 to read as follows: Appandix B - Suspension of 10 CFR 52.764 and Statement of Policy on Conduct of Adjudicatory Proceedings 1. Atomic Safety and Licensing Boards Atomic Safety and Licensing Boards shall hear and decide all issues that come before daem, indicating in their decisions the type of licensing action, if any, which their decision would odaerwise authorize. The Boards ' decisions concerning construction permits shall not become effective until the appropriate Appeal Board and Commission actions outlined below in sections 2 and 3 have taken place. The Board 's l l decisions concerning fuel loading and low-power testing operating licenses or full-power operating licenses shall not become effective untj] the appropriate Commission actions out lined below in section 3 have taken place. wm-a 4- -y
9 2. Atomic Safety and Licensing Appeal Boards Within sixty days of the service of any Licensing Board decision that would otherwise authorize issuance of a construction permit, the Appeal Board shall decide any stay motions that are timely filed. 1/ For the purpose of this policy, a " stay" motion is one that seeks to defer the effectiveness of a Licensing Board decision beyond the period necessary for the Appeal Board and Commission action described herein. If no stay papers are filed, the Appeal Board shall, within the same time period (or earlf.sr'if possible), analyze the record and construction permit decision below on its own motion and decide whether a stay is warranted. It shall not, however, decide that a stay is warranted without giving the affected parties an opportunity to be heard. 1/ Such notions shall be filed as provided by 10 CFR 2.788. No request need be filed with the Licensing Board prior to filing with the Appeal Board. Cf. Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-338, 4 NRC 10 (1976). The sixty-day period has been selected in recognition of two facts: first, allowing time for service by mail, close to thirty days may elapse before the Appeal Board has all the stay papers before it; second, the Appeal Board may find it necessary to hold oral argument. 1 i l
10 In deciding these stay questions, the Appeal Board shall employ the procsdures set out in 10 CFR 2.788. However, in addition to the factors set out in 10 CFR 2.788 (e), the Board will give particular attention to whether issuance of the permit prior to full administrative review may: (1) create novel safety or environmental issues in light of the Three Mile Island accident; or (2) prejudice review of significant safety or environmental issues. In addition to deciding the stay issue, the Appeal Board will inform the Commission if it believes that the case raises issues on which prompt Commission policy guidance, particularly guidance on possible changes to present Commission regulations and policies, would advance the Board's appellate review. If the Appeal Board is unable to issue a decision within the sixty-day period, it should explain the cause of the delay to the Commission. The Commission shall thereupon either allow the Appeal Board the additional time necessary to complete its task or cake other appropriate action, including taking the matter over itself. The running of the sixty-day period shall not operate to make the Licensing Board decision offective. Unless otherwise ordered by the Commission, the Appeal Board will conduct its normal appellate review of the Licensing Board decision after it has issued its decision on any stay request. l l [.-
11 3. Commission Construction Permits Reserving to itself the right to step in at any earlier stage of the proceeding, including the period prior to issuance of the Licensing Board's initial decision, the Commission shall, promptly upon receipt of the Appeal Board decision on whether the effectiveness of a Licensing Board construction permit decision should be further delayed, review the matter on its own motion, applying the same criteria. The parties shall have no right to file pleadings with the Commission with regard to the Appeal Board's [* P stay decisicn unless requested to do so. $;.f.zg ( n The Commission will seek to issue a decision in each construction permit case within 20 days of receipt of the Appeal Board's stay decision. If the Commission does not act finally within that time, it will state the reason for its further consideration and indicate that time it anticipates will be required to reach its decision. In such an event, if the Apoeal Board has not stayed the Licensing Board's decision, the initial decision will be considered stayed pending the Commission's decision.
12 In announcing the result of its review of any Appeal Board the Commission may allow the proceeding to stay decision, run its ordinary course or give whatever instructions as to the future handling of the proceeding it deems appropriate it may direct the Appeal Board to review the (for example, furnish merits of particular issues in expedited fashion; policy guidance with respect to particular issues; or decide bypassing to review the merits of particular issues itself, the Commission may in a the Appeal Board). Furthermore, particular case determine that compliance with existing regulations and policies may no longer be sufficient to warrant approval of a license application and may alter those regulations and policies. Ooerating Licenses the i Reserving the right to step in at an earlier time, Commission shall, promptly upon receipt of the Licensing Board decision authorizing issuance of an operating license, review the matter on its own motion to determine whether to An operating stay the effectiveness of the decision. decision will be stayed by the Commission if it license determines that operation would prejudice correct resolution of serious Three Mile Island accident-related safety issues. i l
13 The parties shall have no right to file pleadings with the Commission with regard to this Commission review unless requested to do so by the Commission, except that no stay shall be issued without giving the affected parties an opportunity to be heard. The Commission will seek to issue a decision regarding each fuel loading and low power testing license within 10 days of receipt of the Licensing Board's decision and regarding each full power operating license within 30 days of receipt of the Licensing Board's decision. If the Commission does not act finally within these time periods, it will state the reason for its further consideration and indicate that time it anticipates will be required to reach its decision. In such an event, the initial decision will be considered stayed pending the Commission's decision. In announcing a stay decision, the Commission may allow the proceeding to run its ordinary course or give whatever instructions as to the future handling of the proceeding it deems appropriate (for example, it may direct the Appeal Board to review the merits of particular issues in expedited fashion; furnish policy guidance with respect to particular issues; or decide to review the merits of particular issues itself, bypassing the Appeal Board). Furda ermore, the
14 Commission may in a particular case determine that compliance be with existing regulations and policies may no longer d sufficient to warrant approval of a license application an may alter those regulations and policies. , e sy' the Commission's review under In operatina license cases, b d decisalns Y0 this Appendix is without prejudice to Appeal Boar or to stay requests filed under 10 CFR 2.788. e B. Oction B
- 1. The footnote to 10 CFR 2.764 is amended to read as follows The tenporary suspension of this rule for construction 1
i permit proceedinos and soecial review procedures for operat ng i ' license proceedings are addressed in Appendix B to th s p ~a r t. 1, 2
- 2. The Appendix 3 to Part 2 is amended by revising Sections and 3 as follows:
Appendix B-Suspension of 10 CFR 52.764 with Respect to ( Construction Permits and Special Review Procedures for I c Operating Licenses t l l l L
15 1. Atomic Safety and Licensing Boards Atomic Safety and Licensing Boards shall hear and decide all issues that come before th em, indicating in their decisions the type of licensing action, if any, which their decision would otherwise authorize. Construction Permits {g The Boards' decisions concerning construction permits shall not become effective until the appropriate Appeal Board and Commission actions outlined below have~ taken place. ooeratina Licenses {g The Board's decisions concerning fuel loading and low-power testing licenses and full power operating licenses shall become effective immediately pursuant to 10 CFR 2.764, subject to possible stays issued by the Commission or Appeal Board. One operating license decisions will be {p, ef#ective pending the stay decisions.
) 16 1 2. Atomic Safety and Licensing Appeal Boards Construction Permits Within sixty days of the service of any Licensing Board ((A decision that would authorize a_ construction oermit, the Appeal Board shall decide any stay motions daat are timely filed. 1/ For the purpose of the application' of this policy to construction permit decisions, a " stay" motion is one dhat seeks to defer the effectiveness of a Licensing Board decision beyond the period necessary for the Appeal Board and Concission action described herein. If no stay papers are filed, the Appeal Board all, within the same time period (or earlier if possible), analyze the record and decision below on its own motion and decide whether a stay is warranted. It shall not, however, decide that a stay is warranted i without giving the af fected parties an opportunity to be heard. 1/ Such motions shall be filed as provided by 10 CFR 2.788. No request need be filed with the Licensing Board prior to filing with the Appeal Board. Cf. Public Service Company of i New Hampshire, (Seabrook Station, Units 1 and 2), ALAB-338, 4 NRC 10 (1976). The sixty-day period has been selected in recognition of two facts: first, allowing time for service by mail, close to thirty days may elapse before the Appeal Board has all the stay papers before it; second, the Appeal Board may find it necessary to hold oral argument.
e 17 Board In deciding these stay questions, the Appeal in 10 CFR 2.788. shall employ the procedures set out in addition to the f actors set out in 10
- However, the Board will give particular attention
-b. a CFR 2.788(e), it prior t to whether issuance of the license or perm S$% s' r M full administrative review nay prejudice review of pvF I' In addition g significant safety or environmental issues. the Appeal Board will to deciding the stay issue, the case inform the Commission if it believes that licy guidance, raises issues on which prompt Commission po nt particularly guidance on possible changes to prese commissien regulations and policies, would advance the If the Appeal Board is Board's appellate review. d y period, unable to issue a decision within the sixty-a Commission. should explain the cause of the delay to the it he Appeal The Commission shall thereupon either allow t lt its Board the additional time necessary to comp e e including taking task or take other appropriate action, The running of the sixty-day the matter over itself. Board's period shall not operate to make the Licensing Unless odnerwise construction pernit decision effective. l the Appeal Board will ordered by the Commission, its normal appellate review of the Licensing conduct ii on any Board decision af ter it has issued its dec s on stay request. I r-- .,,,, - ~. .,,,.,.m,,,.,---,n-,,-..- -m,-m-.., g,,----,n a. -,.. - ~.
18 coerating Licenses Within sixty days of the service of any Licensing Board decision that would otherwise authorize a licensing the Appeal Board shall decide any stay motions
- action, that are timely filed.
If no stay papers are filed, the Appeal Board shall, within the same time period (or earlier if possible), analyze the record and decision below on its own motion and decide whether a stay is warranted. It shall not, however, decide that a stay is warranted without giving the af fected parties an opportunity to be heard. Unless otherwise ordered by the Commission, the Appeal Board will conduct its normal appellate review of the Licensing Board decision af ter it has issued its decision on any stay request. 3. Commission Construction Permits Reserving to itself the right to step in at any earlier stage of the proceeding, including the period prior to the issuance of the Licensing Board's initial decision, Commission shall, promptly upon receipt of the Appeal Board decision on whether the effectiveness of a Licensing . Board construction. permit decision should be further The delayed, review the matter on its own motion. parties shall have no right to file pleadings with the Commission with regard to the Appeal Board's stay h unless requested to do so.
19 The Commission will seek to issue a decision in each case within 20 days of receipt of the Appeal Board's If it does not act finally within that decisions. it will state Ehe reason for its further
- time, consideration and indicate that time it anticipates In such an will be required to reach its decision.
if the Appeal Board has not stayed the Li-
- event, initial construction permit censing Board's decision, decisions will be considered stayed pending the Commission's decision. (
rc. pdd ) Q In announcing the result of its review of any Appeal the Commission may allow the Board stay decision, proceeding to run its ordinary course or give whatever instructions as to the future handling of the proceeding it deems appropriate (for example, it may direct the Appeal Board to review the merits of particular furnish policy guidance l issues in expedited f ashion; with respect to particular issues; or decide to itself, bypassing review the merits of particular issues the Commission may Furthe rmore, the Appeal Board). f compliance with in a particular case determine that t existing regulations and policies may no longer be approval of a license application sufficient to warrant and may alter those regulations and policies.
P 20 Operatina Licenses ii on Promptly upon receipt of the Appeal Board dec s en d operating whether the effectiveness of a Licensing Boar the Commission shall license decision should be stayed, The parties shall review the matter on its own motion. have no right to file pleadings with the Commission l s with regard to the Appe al Board's stay decision un es requested to do so. h The Commission will seek to issue a decision in eac d's case within 20 days of receipt of the Appeal Boar decisions. (Sec. 161, Pub. L. 83-703, 68 Stat. 948 (42 U.S.C. 2201); sec. 201, as amended, Pub. L. 93-438, 88 Stat. 1243, Pub. L. 94-79, 89 Stat. 413 (42 U.S.C. 5841)) 1981. this ___ day of March, D.C., Dated at Washington, For the Nuclear Regulatory Commission, Samuel J. Chilk, Secretary of the Commission
UNITED STATES p recq g? 'o NUCLEAR REGULATORY COMMISSION [ h,,( 3 'g WASHINGTON. D. C. 20555 3 s F s /,l MAR 2 41981 ~ s, MEMORANDUM FOR: Chairman Hendrie Commissioner Gilinsky Commissioner Bradford Commissioner Ahearne dbfhLeonardBickwit, Jr., General Counsel FROM:
SUBJECT:
SECY-81-168 -- PROPOSED RULEMAKING ON FINANCIAL QUALIFICATIONS The rule proposed by staff is intended to eliminate the Atomic Energy Act financial review for nuclear power reactor OL appli-cants and eliminate the Atomic Energy Act financial review for almost all nuclear power reactor CP applicants. The salutory concept underlying the proposal is that reviews that seem to serve no substantially useful purpose should be eliminated. However, the rule and supporting documents do not discuss the merits of several key questions that are at the heart of many intervenor contentions in the Atomic Energy Act financial quali-fications area. We are concerned dnat a rule which disallows the raising of these questions in licensing proceedings without offering any supporting rationale will not survive judicial review.* These key questions are: l 1. What are reasonable decommissioning costs at Ehe end of a plant's useful life and is there, and if not should there be, raasonable assurance that there will be adequate funds for decommissioning? Current NRC rules I in 10 CFR 50.33(f) seem to require both an estimate of decommissioning costs 'and reasonable assurance that they can be obtained. Of course there would be no legal difficulty with issuance of a rule that left these questions open for resolution in l individual cases. However, the value of such a rule in l reducing review and hearing time and resources would be l limited. l CONTACT: Martin G. Malsch, OGC X 41465 i
a 2 Should a utility be financially able to decontaminate 2. and decommission a reactor daat has been damaged by an accident (like TMI)? Current rules are not entirely clear on this point. Both these issues should be addressed in the notice of rule-making. The proposed rule does not address financial issues arising under Issues regarding decommissioning costs and costs resulting NEPA. may be raised as a part of NEPA cost / benefit from accidents, Unless these NEPA issues are addressed 'ee believe daat analyses. contentions which prove inadmissible under the Part 50 amendments will merely resurface under NEPA. We recommend that staff be asked to consider the financial issues arising under NEPA and advise the Commission whether such issues can be included in this rule. cc: OPE SECY NRR OELD EDO
mesnaimissed .o R MCg l b 7 I+ f.'( 'T6 (.j 5 SECY-81-168
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March 16,1981 ogv RULEMAKING ISSUE (Affirmation) For: The Comissioners From: William J. Dircks Executive Director for Operations
Subject:
PROPOSED RULEMAKING TO REDUCE OR ELIMINATE REQUIREMENTS WITH RESPECT TO FINANCIAL QUALIFICATIONS FOR POWER REACTORS
Purpose:
To obtain Comission approval for the publication for public coment of a notice of proposed rulemaking to amend 10 CFR Part 50 that would: (a) eliminate, in effect, the financial qualifications review for power reactors at the OL stage and reduce the review at the CP stage, and (b) permit the removal of financial qualifications as an issue in ongoing and l future OL proceedings. Discussion: Since the Comission's Order in Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2) '7 NRC 1 at 20, CLI-781 (1978), the staff has addressed the Comission a number of times with respect to altering or eliminating the requirements for a financial qualification review for production and
Contact:
J. Petersen 492-8599 l w 2 s f o s 2 4:, o v r 7 l l I
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- MEMORANDUM FOR: Chaiman Hendrie
~'.' 9. - / - ', ! ' 5 i ~ 3. l f~ Commissioner Gilinsky "- ^ , ;.? Comissioner Kennedy ' Comissioner Bradford ~ '. P Commissioner Ahearne. 'e ~ \\ Howard K. Shapar. FROM: ~ Executive Legal Director-I Lee Y. Gossick isigned) r. A Rehin 7 THRU: , Executive Director for Operations e
SUBJECT:
~FINAN'CIAL QUALIFICATIONS: MEED FOR LEGISLATION FOR THE , ComISSION TO ABANDON FINANCIAL QUALIFICATIONS REQUIRE' TENTS.( FOR APPLICANTS FOR LICENSES ~ - Cocrtissioner Gilinsky has asked my opinion, by a memorandum dated Septem- .A< ber 20,1979, as to whether legislative authority would be required for the Comission to abandon its inquiry into the financial qualifications of~ \\ applicants for licenses under section 182 of the Atomic Energy Act. \\ ~ Section.182a of the Act; provides in pertineat'part: ' ,] \\ Each application for a lic'ense hereunde'~r shall be in writing 3; and shall specifically state such infomation as the Comission. N by rule or regulation, may detemine' to be necessary to decide \\ such of the technical and financial qualifications of the applicant - the character of the applicant the citizenship of the applicant, or-any other qualifications of the ap~plicant as the Comission may ~ deem appropriate for the license. ~ Thus, on its face, section 182a authorizes, but does not mandate, the Comis-sion to require infomation as to the financial qualifications of applicants - for all kinds of licenses. The Court of Appeals for the First Circuit, in Mew England Coalition v'. U.S. Muclear, etc. 582 F.2d 87 (1978) stated that the Act gives the NRC complete discretion to decide what financial qualifications are appropria'te. In point of fact, the Commissio'n (NRC and AEC) has required information \\ ~\\. concerning financial qualifications from applicants'for facility licenses ', but not, in recent years, from applicants for materials licenses. -Thus, g , F, {c' ' although 5 70.23(a)(5) of part 70 provides as a condition for approial of an 7 fP application. for a license to possess and use special nuclear material.' that 0 ~ n et ~~-Q SbRE'2h p ',. J . p. ',. 492-7C30 -
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. +..., p y-Q y;.: .,,.)., P,. . q-}. i .t , _. ~ ~ "where the nature of the proposed activities is such as to require considera- ' tion by the Comission, the applicant appears to be financially qualified to engage in the proposed activities in accordance with the regulations in this part," such information has not been sought since the enactment of the Private Ownership of Special Nuclear Materials Act in 1964. ~ Further, neither Part.40 nor Part 30 contains requirements, even conditional, for financial qualifica-tion of applicants for source material or byproduct material licenses. t [ The ir.,31slative history of the financial qualification provision in sec-i tion 182a. is obscure. The report of the Joint Comittee on Atomic Energy on S. 3600, the bill to amend the Atomic Energy Act of 1946 (S. -Rep.1699, j i 82d. Cong., 2d Sess.) stated as fo.llows (p. 28). - "Section 182 sets forth the information that the Comission may require in any application for a license so as to assure the Com. mission of adequate information on which to fulfill its obligations to protect the comon. defense and to protect the health and safety ~ cf the public." .2 The main ratioriale for the provisions in Part 50 requiring financial quali-fications information has been that the statutory provision was. intended primarily to provide additional means of assuring that licensed activities would be carried out safely. Thus, in staff paper AEC-R 2/44, it was stated i . that "except for the Comission's interest in determing that an ap$1 cant can pay the Commission for special nuclear material used or consumed, the. only purpcse for our review of financial qualification is to determine that the applicant will have the financial resources to' carry out the proposed activities safely.",.. '. ~ The legislative history ' indicates that further assurance 'of protection of the public. health and safety and the comon defense and security was not the only purpose of the financial qualifications provision. ~ - - l When the Atonite Energy' Act of 1954 was inacted, it was expected'that special l - nuclear o.aterial would be in short supply; accordingly, the financial quali-l fications provision was intended, at least in part, to assure that it was distributed only to persons financially qualified to put it to use.* However, the situation has, changed; special nuclear. material is not a scarce comodity. This is reflected in the~ first version of 10 CFR Part 70, published Februo ary 3,1956 (21 F.R. 764), which contained requirements for financial qual fication to engage in licensed activities, to assume responsibility for payment of Comission charges for use or consumption or loss of special nuclear material and to. carry out the proposed use of special nuclear material within a reasonable period of time. Further, it should be noted that the financial qualifications provision in section 182 is reputed to have been modeled after 47 U.S.C. I 319(a) a provision of the Federal Comunications Act.. That provision has been construed as designed to assure that persons licensed to. use valuable. and scarce frequencies have the financial ability to utilize the frequency for public benefit Gray-bar 'clectric Company v. Foley, 4th Cir., 273 F.2d 284, 291~; t.as Vecas Ya%y Broadcasting Co. v. F.C.C.' D.C. Cir., 589 F.2d 594, 599.
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- *p In view of the rationali 'of the NRC and the AEC linking financial qualifica _
tions to safety,1.f the Comission wished to aba.ndon the financial qualifi-cations requirecent, there would need to be a reasonable basis, derived from experience or otherwise..for doing so. In this connection, it may be noted that the Comission, in the Seabrook case, described the link between safety and financial qualifications as " seemingly tenuous" (7 NRC 19). Sumary 1. Section IC2a cf the Act on its face authorizes, but does not enjoin the Comission to impose financial qualifications requirements on license applicants. - 2. There is nothing in the legislative history to suggest that a financial qualifications requirement is rsandatory rather than discretionary. ~ 3. Comission practice has beeri to impose financial qualifications require-ments on applicants for facility licenses but not, in general, on applicants for materials licenses. 4. Since it has been long-standing Comission practice to ' impose financial qualifications requirements 'on facility license applicants because of the purported connection with protecting the public health and safety, a reasonable basis would be needed to justify a change, presunably that public health and safety is adequately protected by the Comission's safety regulations and inspection and enforcement program. Ori inal sign,q d b7 E. X. k m 2 5 a73 Howard X. Shapar _ Executive Legal Director DISTRIBUTION:- ED0 ~ '.OGC 'SECY (2) NRR ELD R/F ~ Centr &1 Files a JBecker HShapar;(2) ~ . ~. OELD. ELD 't EDO
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\\. ~,p = % March 20, 1981 -. w_ - i. SECY-81-182 i 3 L ;' l, ~ ..., ~ For: The Commission Frcm: Leonard Bickwit, Jr. General Counsel
Subject:
DRAFT FEDERAL REGISTER NOTICE ON MODIFYING APPENDIX B TO PART 2 AS IT APPLIES TO OPERATING LICENSES
Purpose:
To obtain Commission approval of a draft Federal Register notice announcing that the Commission is considering amending Appendix B and soliciting comments from the public. Discussion: The draft Federal Register notice proposes two options for modifying Appendix B as it applies to operating license decisions. Option A provides for expedited Commission review of operating license decisions before l granting effectiveness. Option B provides for immediate effectiveness of operating license decisions with concurrent Appendix B review. The notice establishes a 30-day period for public comment and includes appropriat@ regulatory language for each of the options. Recommendation: Approval of the proposed Federal Register Notice. f ..m..--) l
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( Leonard Bickwit, Jr. General Counsel (
Attachment:
Draft Federal Register totice CONTACT: SECY NOTE: This paper is identical to advance copies circulated by OGC Richard A. Parrish, OGC to Comission offices en March 19, 1981. 634-3224 7i90'[l3[d** A lu I oU S[ff y y 8/032ro 27'1 L
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Q G y) SECY-81-202 March 30,1981 s.... POLICY ISSUE (Commission Meeting) T_o : The Commission o From: Leonard Bickwit, Jr., General Counsel
Subject:
Draft Policy Statement on the Efficient Conduct of Licensing Proceedings Discussion: OGC has prepared the attached draft policy statement which is intended to combine elements of the draft statement submitted to the Commission by the Licensing Board Chairman and the alternative draft letter prepared by the Executive Legal Director. The ASLAP, ASLBP, and OELD have provided us with comments on the draft, which we have incorporated. OGC, the ASLEP, and OELD recommend that the Commission issue the attached statement. The ASLAP has no objection to its issuance. This revised draft differs from the earlier versions in one erjor respect -- it does not address scheduling. There is no reference to how j quickly the hearing should commence after issuance of the staff SSER or how quickly Board decisions should be issued after the record is closed. Those matters were addressed in the Statement of Considerations accompanying the proposed procedural rules that have been published in the Federal Register for comment. We suggest that
Contact:
Trip Rothschild, GC X-41465 SECY NOTE: This paper, which is identical to advcnce copies which were distributed to Comission offices on March 3'),1981, may be the subject of discussion among other related items at the open Comission meeting on Revised Licensing Procedures on Tuesday, March 31, 1981. l l 3.~ m D 3 m \\,l[ 9/O YO3d b 3 7 =. o g' - -.}}