ML20039B375
| ML20039B375 | |
| Person / Time | |
|---|---|
| Issue date: | 09/24/1981 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| Shared Package | |
| ML20039B368 | List: |
| References | |
| NUDOCS 8112220602 | |
| Download: ML20039B375 (8) | |
Text
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SEP.2 51981
- E NUCLEAR REGULATORY COMMISSION 10 CFR Part 2 Emi:e of the Secretat7 8
Sc:hetirig & Service Commission Review Procedures for Power Reactor k Operating Licenses; Imnediate Effectiveness Rule o) cp AGENCY:
Nuclear Regulatory Commission.
ACTION:
Final Rule.
SUMMARY
The Nuclear Regulatory Commission is amending its recen!"Jy adopted final rule on review procedures for Licensing Board decisions granting power reactor operating license applica-tions, 46 Fed. Reg. 28627 (May 28, 1981).
The Commission will retain to itself the decision as to whether or not a plant will be allowed to go into commercial operation, i.e. receive a full-power license.
However, the rule is being modified so as to deleta the requirement that the Commission conduct an effectiveness review prior to fuel loading and low-power testing, and to make other clarifying changes.
The reconsideration is prompted by Commission experience in reviewing several recent cases.
20 EFFECTIVE DATE:
SeptemberPM,1981, FOR FURTHER INFORMATION CONTACT:
Martin G.
Malsch, Deputy General l
- Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555 (telephone:
202-634-1465).
8FL17744 PC9 COMMS NRCC
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SUPPLEMENTARY INFORMATION:
In the aftermath of the accident-at Three Mile Island, the Nuclear Regulatory Commission had suspended in part its so-called immediate effectiveness rule which permitted f avorable Licensing Board decia;ons to go into effect notwithstand-ing the filing of administrative appeals, and imposed in its stead a special sua sponte Commission review process designed to assure that no decision authorizing issuance of a nuclear power reactor construction permit or operating license could become effective without prior Commission review.
See 44 Fed. Reg. 58559 (October 10, 1979), 44 Fed. Reg. 65049 (November 9, 1979), 10 CFR Part 2, Appendix B (1980 ed.).
On May 28, 1981, after consideration of numerous public comments in response to a notice of proposed rule-making, 46 Fed. Reg. 20215 (April 3, 1981), the Commission replaced the special review procedure for operating licenses with new proce-4 dures designed to reduce ur.aecessary delays.
46 Fed. Reg. 28627 (May 28, 1981).
A more complete explanation of the background, and effect of this rulemaking proceeding can be found in
- purpose, the notices of proposed and final rulemaking cited above.
The new procedures still called for Commission review prior to issuance of any power reactor operating license, including a license for fuel loading and low power te_ sting.
The Commission has reconsidered whether it must, as a policy matter, complete a review of favorable Licensing Board decisions prior to fuel loading and low power testing (up to 5 percent of
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rated power), and commercial operation (full power).
The C5imission has concluded that it must retain the authorization of the full power license in order to fulfill the responsibilities of the Commission.
These are the fundamental licenses granted by the NRC.
- However, the Commission has concluded that such review is not necessary for fuel loading and low power testing.
First such activities involve minimal risk to the public health and safety, in view of the limited power level and correspondingly limited amounts of fission products and decay heat, and greater time available to take any necessary corrective action in the event of an accident.
Second, in operating license cases since the Three Mile Island accident the Commission has generally conducted its effectiveness review on a two-stage basis, first reviewing a fuel loading and low power testing license and then reviewing a full power license.
Commission exparience has been that in no case has fuel loading and low power testing prejudiced the later full power decision.
Accordingly, the Commission is reconsidering the review proce-dures adopted on May 28, 1981 so as to, in ef fect, reinstate the immediate effectiveness rule to the. limited extent of allowing nuclear power reactor fuel loading and low power (up to 5% of rated power) testing based on favorable Licensing Board decisions notwithstanding the filing of exceptions.
The Ccmmission will retair.
the power to authorize full power operation.
Also, language has been added to 10 CFR 2.764 to preserve Commission sua soonte authority i
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to, in effect, ' suspend the immediate effectiveness rule in any case where special circumstances indicate this to be sound policy.
This sua sponte authority is not intended to serve as a parallel avenue for parties to seek and obtain stays.
10 CFR 2.788 should be used j
for this purpose.
Thus, in a typical case the Director of Nuclear Reactor Regulation may issue a license within ten days from the date of issuance of a full power decision, 1/ unless a stay motion was granted under 10 CFR 2.788, or there were some uncontested matters still requiring resolution.
The same would hold true for low power decisions.
Finally, the new review procedures, as well as the old proce-dures adopted in 1979, are. intended to apply only to nuclear power reactors, and the new rule has been clarified to this effect.
These rule changes will be applied prospectively, i.e.,
to initial decisions issued after the rule changes' effective date.
I Thus, they will not apply to cases like Diablo Canyon where the decisions were issued before the effective date, and the rules, as amended on May 28, 1981, will still apply to such cases.
- Also, these rule changes will not apply to the Three Mile Island Unit 1 restart cases where special effectiveness procedures are in effect or to any other case which 2nvolves extraordinary circumstances.
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The Commission expects that in the usual case of a favorable full power Licensing Board decision the Director of Nuclear Reactor Regulation would be able to issue the license using the format of a full power license but with the special added condition that operation beyond 5 percent of rated power is not allowed.
This eliminates the need to prepare two separate license documents, one for low power and one for full power, but has no substantive effect on the activities authorized.
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5 The review procedures addressed in this rulemaking app'li only to contested operating license cases.
Uncontested operating license cases are governed by a policy statement, issued in October 1979, 44 Fed. Reg,. 58559 (October 10, 1979), which prohibited NRC staff from issuing any power reactor operating license without prior Commission review.
The Commission, in this same issue of the Federal Register, is' conforming its practice in uncontested cases to the rule changes herein by revising the earlier policy statement so as to delegate to the staff the authority to permit fuel loading and low power testing in uncontested cases without prior Commission review.
See Table of Contents for this' issue of the Federal Register.
The new rule is a variation on one of the proposals submitted for comment in the Commission's recent rulemaking proceeding.
Indeed, many commenters urged the full reinstatement of the immedi-ate effectiveness rule.
Thus the new rule raises no policy consid-erations that were not raised in the earlier rulemaking.
The change is also procedural in nature.
It does not in any way modify any of the Commission's substantive standards for issuance of nuclear power l
reactor operating licenses and it has no significant effect on the l
l participatory rights of parties to contested operating license bearings.
The procedure and standards for parties to seek and obtain stays of adjudicatory decisions are set forth in 10 CFR 2.788 and remain unchanged and fully in effect.
For these reasons the Commission believes that further notice of proposed rulemaking i
and public comment is unnecessary.
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6 In accordance with the Regulatory Flexibility Act of 19,80, 5 U.S.C.
605(b), the Commission hereby certifies that these rule changes will not have a significant economic impact on a substan-tial number of small entities.
These rule changes would affect the Commission's procedures by permitting expedition of the licensing process.
Because these rule changes relate solely to procedural matters and serve to remove procedural restrictions on licensees, the Commission has determined to make them effective upon publication in the Federal Register.
Pursuant to the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and sections 552 and 553 of Title 5 of the United States Code, notice is hereby given that the following amendments
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to 10 CFR Part 2 are published as a document subject to codification.
1.
The authority citation for Part 2 reads as follows:
AUTHORITY:
Secs. 161p and 181, Pub. L.83-703, 68 Stat. 950 and 953 (42 U.S.C.
2201(p) and 2231); sec. 191, as amended, Pub. L.87-615, 76 Stat. 409 (42 U.S.C. 2241); sec. 201, as amended, Pub. L.93-438, 88 Stat. 1242 (42 U.S.C.
5841); 5 U.S.C.
552; unless otherwise noted.
Sections 2.200-2.206 also issued under sec. 186, Pub.
L.83-703, 68 Stat. 955 (42 U.S.C.
2236) and sec. 206, Pub. L.93-438, 88 Stat.
1246 (42 U.S.C. 5846).
Sections 2.800-2.808 also issued under 5 U.S.C. 553.
2.
In both paragraphs,(a) and (b) of 10 CFR 2.764, the opening phrase "Except as provided in paragraphs (c) through (f) of this section," is amended to read "Except as provided in paragraphs (c) through (f) of this section, or as otherwise ordered by the Commission in special circumstances,".
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7 of 10 CFR 2.764 is amend'e$ to The title of subparagraph (e) 3.
read " Nuclear Power Reactor Construction Permits".
I of 10 ~ CFR 2.764 is amended to read as follows:
4.
Paragraph (f)
Nuclear Power Reactor Operating Licenses (f)
Atomic Safety and Licensing Boards (1)
Atomic Safety and Licensing Boards (i) shall hear and decide all issues that come before indicating in their decisions the type of
- them, if any, which their decision licensing action, A Board's decision authorizing would authorize.
issuance of an operating license (including a fuel loading and low power testing license)' shall not become effective insofar as it authorizes operating at greater than 5 percent of rated power until the Commission actions outlined below in paragraph (f)(2) i Insofar as it of this section have taken placed.
the decision authorizes operation up to 5 percent, l
shall beccme effective and the Director shall issue the appropriate license in accordance with paragraph.
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(b) of this section.
(2)
Commission (i)
Reserving the power to step in at an earlier time, the commission will, upon receipt of the Licensing Board decision authorizing issuance of an operating license, other than a decision authorizing only fuel loading and low power (up to j
5 percent of rated power) testing, review the matter
'on its own motion to determine whether to stay the effectiveness of the decision.
An operating license decision will be stayed by the Commission, insofar as it authorizes other than fuel loading and low L.
if it determines that it is in. the power testing, public interest to do so, based on a consideration P
of the gravity of the substantive issue, the likeli-L 3
hood that it has been resolved incorrectly below, the degree to which correct resolution of the issue and would be prejudiced by operation pending review, l
other relevant public interest factors.
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wu-8 (ii) For operating license decisions other than those authorizing only fuel loading and low power testing consistent with the target schedule set forth below, the parties may file brief comments with the Commission pointing out matters which, in their view, pertain to the immediate effectiveness issue.
To be considered, such comments must be received within 10 days of the Board decision.
However, the Commission may dispense with comments by so advising the parties.
No extensive stay shall be issued without giving the affected parties an opportunity to be heard.
(iii) The Commission intends to issue a stay decision within 30 days of receipt of the Licensing Board's decision.
The Licensing Board's initial decision will be considered stayed pending the Commission's decision insofar as it may authorize operations other than fuel loading and low power (up to 5 percent of rated power) testing.
(iv) In announcing a stay decision, the Commission may allow the proceeding to run its ordinary. course or give instructions as to the future handling of the proceeding (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).
Furthermore, the Commission. may in a particular case determine that compliance with exist-ing regulations and policies may no longer be suffici-ent to warrant approval of a license application and may alter those regulations and policies.
(v)
In operating license cases, the Commis-sion's review under this section is without prejudice to Appeal Board or other. Commission decisions, including
. decisions on stay requests filed under 10 CFR 2.788.
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Dated at Washington, D.C.
this 24th day of September, 1981.
Fpr the lear Regulatory Commission.
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AM EL J.< CHILK Secretarytof the Comci sion m
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