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{{#Wiki_filter:MU-a Por -..,[0, UNITED STATES 8 p, NUCLEAR REGULATORY COMMISSION r, el WASHING TON, D. C. 20555 August 16, 1982 MEMORANDUM FOR: Tom Dorian Office of the Executive Legal Director FROM: Joseph T. Cawley,11 Rules and Procedures Branch Division of Rules and Records Office of Administration
SUBJECT:
DRR REVIEW 0F THREE FEDERAL REGISTER NOTICES; 10 CFR PARTS 2 AND 50 I have reviewed the three attached Federal Register notices and inserted required format revisions where necessary. The proposed rule concerning "... No Significant Hazards Considerations..." would amend t 50.91. Another proposed rule ent'tled, "Backfitting"(Jim Tourtellotte's rule), also would amend i 50.91. Since both rules are in the " proposed" stage, coordination between you and Jim Tourtellotte should eliminate any possibility of a problem developing at the " final" rule stage. However, in order to avoid confusing the public with the publication of two different proposed versions of 5 50.91, you may wish to resolve this issue as soon as possible. Please call me on extension 27086 if you have any questions. h [ [ I Js h T. awley, 11 Rui s and Procedures Branch Division of Rules and Records Office of Administration + Attachments: As stated cc: Jim Tourtellotte 8604170365 B6032' h3F 0491 PDM
/ m s. l i- [7590-01] NUCLEAR REGULATORY C0411SSION i 10 CFR Parts 2 and 50 [ofR. Wf "# 5,tandards for Detenninjn'g Whether License Amendments AW5 chd i $ SJM InvolveNo,Signifiban Hazards Consideration AM y Need h ^ kQ yk. ak f con z Oy hcc w e c AGENCY: Nuclear Regulatory Conin,ission; A ACTION: Final rule.
SUMMARY
- AsrequiredbhtheNRCAuthorizationActforFiscalYears1982 m
and 1983, NRC is amending its regulations to specify standards foi deter-mining whether amendments to operating licenses for certain facilities involve no significant hazards consideration. l k, EFFECTIVE DATE:e [ Effective date is 30 days following ;,ublicatior, in \\ ( 3 ... _. _ _ ) ( the FEDERAL REGISTER] ,FOR FURTHER INFORMATION CONTACT: Thomas F. Dorian, Esq., Office of the Executive Legal Director, U.S. Nuclear Regulatory Comission, Washington, l D.C. 20555. Telephone: (301)492-8690. e t F e O L A J
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.t ,s. 2-S'JPFLEMENTARY INFORMATION: Introduction On , Congress passed Publ.ic Law to authorize fiscal year 1982 a,nd 1983 appropriations 'f'or NRC, and for other purposes. Among other things, the legislation directs NRC to promulgate, within 90 days of enactment, regulations which e tabl,ish '(a) standards for detemining .whetheranamendmentto,anoperatlnglicens%;involvesnosignificant hazards consideration, (b) criter,ia for: pro'vjding or for dispensing with prior notice and opportunity for'publid comment on such a determination. and (c) procedures for consultation on such a detemination with the
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State in which the facility of the licensee requesting the amendment is located. Proposed regulations to specify ttandards for determining whether an amendment to operating licenses or construction permits for commercial power reactors (or certain other facilities licensed under $$50.21(b)and50.22)involvesnosignificanthazardsconsideration ,(item (a) above) were published for coment in the Federal Register by the Comission on March 28,1980(45FR20491). The Commission is now promulgating these proposed regulations in final form with respect to operating licenses. It does not intend to use these standards with respect to decisions about amendments to construction pennits. Such decisions have been rare and should remain very few, if any, because the no significant hazards consideration rarely, if ever, applies to O e
'e' ): 4 3-construction permits. Sirice the propcsed rule was published before the new legislation was enacted, the final rule takes accuunt not only of the new legislation but also the public comments received on the proposed. -;,rul e. In addition,',affected prior legislation as well as Commission regulations and practice are discussed as background infomation. )-- ' Simultaneously with the promulgation of these final standards, the l'gisla' tion, is publishing a' proposed Comission, as required by tiie ne e rule which contains criteria jo'r $roviding '6r for dispensing with prior l notice and.public coment on,a determinatio'nias to whether an amendment to an operating license involves'a no significant hazards consideration (item (b)e.bove). Reguiationsarealso,proposedwhichspecifyprocedures f for consultation on such a determination with the State in which the facility of the licensee requesting the amendment is located (item (c) l above). These proposed rules appear in this issue of the Federal Register as the second document in this separate part. A.- Affected Legislation and Regulations Section18Sa.oftheAtomicEnergyActof1954,asamended(theAct), provides that upon thirty-days' notice published in the Federal, Register the Comission may issue an operating license, or an amendment to an operating license, or an amendment to a construction permit, for a facility licensed under sections 103 or 104b. of the Act, or for a testing facility licensed under section 104c., without a public hearing if no hearing is requested by any interested person. Section 189a. also permits the Commission to dispense with such thirty-days' notice and e ~
~ O 1' .~.- ~ _4_ Federal Register publication with respect to the issuance of an amendment to a construction permit or an amendment to an operating license upon a determination by the Ccmission that the amendment involves no significant hazards consideration. The Commiss, ion's regulations impjeidenting section 189a. with respect to no significant hazards consideration are contained in' 10 CFR Parts 2 and 50, " Rules of Practice for Domesth: Li,cens'ing Proceedings" and " Domestic Lice'nsing of Production,and Utili'zation Facilities," respectively. The regulations provide for prior not, ice of ea " proposed action" on an l application for an amendment when a determination is made that there is a significant hazards consideration and provide an opportunity for interested
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1 members of.the public to request a hearing. See 10 C.F.R. 2.105(a)(3) and ) l - 50.91. Hence, if a requested license amendment is found to involve a sign'ificant hazards consideration, the amendment would not nomally be issued until after any required hearing is completed. In addition, 5 50.58(b) provides for thirty-days' notice and opportunity for a hearing on an application for a construction pemit or operating license for a production, utilization or testing facility, or for an amendment to a construction permit or operating license. A. hearing after the notice is required only on an application for a construction permit or an operating license or for an amendment when requested by a person whose interest may be aff cted. The provision also provides that if the Commi:;sion determines that no significant hazards consideration is ~ presented by an application for an amendment to a construction permit or
w w 4 an operating license, it may dispense with the notice. Thus, a determination that a proposed license amendment does or does not present a "significant hazards consideration" significantly affects the public hearing and notice requirements. However, the regulations until now have not defined the term "significant; hazards consideration." i The Comission's practice with. regard to license amendments involving no significant hazards considerat' ion (unl,ess,' as a matter of discretion, . prior notice was given),was to is$ue the am'endment and then publish in the Federal Register a notice of. issuance. '.See 10 C.F.R. 2.106(a). In such cases, interested members of the'public who wished to object to the amendment and request a hearing could do so, but a request for hearing *
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did not, by itself,- suspend the effdctiveness of the amendmer";. ~ B. The Sholly Decision and the New Legislation The Comission's practice of not pruviding an opportunity for a prior hearing on a license amendment not involving significant hazards considerations was held to be improper in Sholly v. NRC, 651 F.2d 780 _(1980), rehearing denied, 651 F.2d 792 (1980), cert. granted 101 S.Ct. 3004 (1981) (Sholly). In that case the U.S. Court of Appeal.s for the District of Columbia Circuit ruled that, under section 189a. of the Act, NRC must hold a prior hearing before an' amendment to a license for a facility can become effective, if there has been a request for hearing (or an expression of interest in the subject matter of the proposed amendment which is sufficient to constitute a request for a hearing). A __m...
=,_ _ s-y 't ~ ~,, . prior hearing, said the Court, is required even when NRC has made a finding that a proposed amendment involves no significant hazards consideration and has determined to dispense with prior publication in the Federal Register. At the request of the Comission and the Department of Justice, the Supreme-Court agreed to review the Court of Appeal's interpretation of section,189a. of the Act. The Court's decision did not involve and has no effect upon the Comis- ~ sior$'s authority to order imediately effecl.ive ainendments, without prior noticeor< hearing,whenthepublichealth,'s5fety,orinterest,orthe comon defense and security so riquires. See, Administrative Procedure Act, 5 9(b, 5 U.S.C. 5 558(c), section 161 of the Act, and 10 C.F.R. ~ , 2.202(,tl and 2.204. Similarly, the; Court did not alter existing law with regard to the Comission's pleading requirements, which are designed to enab'le the Comission to determine whether a person requesting a hearing is, in fact, an " interested person" within the meaning of section 189a. - -- that is, whether the person has demonstrated standing and identified one or more issues to be litigated. See, BPI v. Atomic Energy Comission, 502 F.2d 424, 428 (D.C. Cir.1974), where the Court stated that, "Under .its procedural regulations it is not unreasonable for the Comission to require that the prospective intervenor first specify the basis for his request for a hearing." However, NRC believed that legislation was needed to change the result reached by the Court in Sholly because of the implications of the requirement that NRC grant a requested hearing before it could issue a license amendment involving no significant hazards consideration. Since e
_ _ _ ~ f e. most requested license amendments involve no significant hazards consideration and are routine in nature, hearings on such amendments could result in unnecessary disruption or delay in the operations of
- nuclear power plants and could impose unnecessary regulatory burdens upon NRCandthenuclearindustrythatgrenotrelatedtosignificantsafety matters.' Subsequently, on March.'.11, 1981, the Comission submitted i:
proposed legislation to Congress.(i,ntroduced as. S.912) that would expressly authorize NRC to issuela l'icense amendment involving no , sigriificant hazards considerati' ri before holding a hearing requested by o' aninteregtedperson. 5 s After considering two sYmilar bills, H.,R.2330 and S.1207, Congress passed
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Specifically, section 12 of that law amends section 189a. Public Law. of the Act by adding the following with respect to license amendments involving no significant hazards consideration: ["SH0LLY"] OPERATING LICENSE AMENDMENT HEARINGS SEC. 12. (a) Section 189a. of the Atomic Energy Act of 1954 (42 U.S.C. 2239(a)) is amended-- (1.) by inserting "(1)" after the subsection designation; and (2) by adding at the end thereof the following new paragraph: "(2)(A) The Comission may issue and make immediately effective any amendment to an operating license, upon a determination by the Comission that such amendment involves no significant hazards consideration, notwithstanding the pendency before the Comission of a request for a hearing from any person. Such amendment may be issued in advance of the holding and completion of any required hearing. In determining under this section whether such amendment involves no significant hazards consideration, the Comission shall consult with the State in which the facility involved is located. In all other, respects such amendment shall meet the requirements of this Act.
4.- ~ ~ _8_ "(B) The Comission shall periodically (but not less frequently than once every thirty days) publish notice of any amendments issued, or proposed to be issued, as provided insubparagraph(A). Each such notice shall include all amendments issued, or proposed to be issued, since the date of publication of the last such periodic notice. Such notice shall, with respect to each amendment or proposed amendment (i) identify the facility involved; and (ii) provide a brief description of such amendment. Nothing in this subsection shal.1 be construed to delay the effective date of any amendment. .'. i "(C) The Comission sh'alhduring the ninety-day period .following the effective date~.of this paragraph, promulgate regulationsestablishing(1).,s't.andardsfordete'rmining whether any amendment to enf.operatin license involves no significant hazards consideration; ( i) criteria for ' providing or, in emergency's3tuations,' dispensing with with prior notice and reasonable opportunity for'public coment on any such,, determination, which criteriaesha'll take into account the dxigency of the need foi the amendnient involved; and (iii) procedures for consultation'on any such determination with the State in which the facility involved is located." (b) The authority of the Nuclear Regulatory Comission, undenthe provisions of the amendment made by subsection (a), ~to issue and to make imediately effective any hTA!ndment to an operating license shall take effect upon the promulgation by the Comission of the regulations required in such provisions. Thus, as noted above, the legislation authorizes NRC to issue and make imediately effective an amendment to an operating license upon a determinathn that the amendment involves no significant hazards consideration, even though NRC has before it a request.for a hearing from an interested person. At the same time, however, the legislative history'- w kes it clear that Congress expects NRC to exercise its authority only in the case of amendments not involving significant safety ques ~tions. See Senate Report No. 97-113, May 15,1981, on S.1207, by the Senate Comittee on Environment' and Public Works, at p.14. Additionally, Congress stressed: 89 e
~ ., ~ 7.. A- _~ g. ~ its strong desire to preserve for the public a meaningful right to participate in decisions regarding the comercial use of nuclear power. Thus, the provision does not dispense with the requirement for a hearing, and the NRC, if requested [by an interested person], must conduct a hearing after the license amendment takes effect.'. .I. d. It should be also noted that Section 12 of Public Law separates the standards,for determining whether an amendment involves no significant . '. ' * ~ hazards consideration (now used kith respect to prior noticing and opportunity for hearing)'from the.,c'r.iteria, for provi' ding or for dispensing witt) prior notice and reasonab e pportunity for public coment on'this determination. 'i .y Therefore, the Comission is promulgating as a final rule.the proposed standards;for determining whether an am'endment to an operating license involves no significant hazards consideration, and, simultaneously, it is publishing for thirty-days' coment (as mentioned before) a proposed rule to establish (a) criteria for providing or dispensing with prior notice and public comment on such a determination and (b) procedures for consulting the requisite State on such a determination. C. Final Rule on Standards for Determining Whether an Amendment to an Operating License involves No Significant Hazards Consideration 'The Comission's final rule on standards for determining whether an amendment involves no significant hazards consideration completes its actions on the notice of proposed rulemaking (discussed above), which was issued in response to a petition for rulemaking (PRM 50-17) submitted by letter to the Secretary of the Comission on May 7,1978, by Mr. Robert Lowenstein. The, petitioner requested that 10 CFR Part 50 ~ a
~ l ~ .v ~ . r. of the Commission's regulations be amended with respect to the procedures for issuance of amendments to operating licenses for production and utilization facilities. The petitioner's proposed amendments to the regulations would have required'that the staff take into consideration (in determining whether aproposedamendmenttoanoper,akinglicenseinyolvesnosignificant hazards consideration) whether opera' tion of the plant under the proposed licdnse amendment would (1) sub'stantially increase the probability or consequengesofamajorcredible.reactoracci'dentor(2)decreasethe margins of safety substantially below those previously evaluated for the ~ plant and below those a'pproved for existing licenses. Further, the
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petitioner. proposed that, if the staff reaches a negative conclusion as to both of these standards, the proposed amendment must be considered l not to involve a significant hazards consideration. In issuing the proposed rJ1e, the Comission so';ght to improve the licensing process by specifying in the regulations standards as to the meaning of "no significant hazards consideration." These standards would have applied to amendments to operating licenses, as requested by the petition for rulemaking, and also to construction permits, to whatever extend considered appropriate. As mentioned before, the f Comission now believes that these standards are not applicable t'o amendments to construction permits and has modified the proposed rule accordingly. e li
( 11 _ In the statement of considerations which accompanied the proposed rule, the Comission explained that it did not agree with the petitioner's proposed standards because of the limitation to " major credible reactor accidents" and the failure to include accidents of a type different from those previously evaluated. During the past several years the Comissio'n's staff has been guidedein reaching its detenninations with = respect to "no significant hazards consideratio.n" by staff standards and examples of amendments likely to.i.nvol.ve,'and not likely to involve, , sigriificant hazards considerations. These have proven useful to the staff, ang.the Commission employed them in 'd6veloping~ the proposed e rule. The notice of proposed rulemaking contained revised standards to be incorporated into Part 50, and the s,tatement of considerations
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contained'cxamples of amendments to;a license that are considered likely and not likely to involve a significant hazards consideration. The three standards proposed'were: whetherthelicenseamendmentwould(1) involve a significant incrbase in the probability or consequences of an accident previously evaluated, (2) create the possibility of an accident of a type different from any evaluated previously, or (3) involve a significant reduction in a margin of safety. Nine individuals submitted comrrents regarding the proposed amendments. The coments are part of the public record and may be examined at and copied for a fee at the Comission's Public Document Room at 1717 H Street, N.W., Washington,-D.C. A sumary of and response to the coments is available for examination and copying for a fee at the Public Document Room.
[ tv ~ . A number of comenters recomended, in regard to the second criterion in the proposed rule, that a threshold level for accident consequences (for example, the limits in 10 C.F.R. Part 100) be established to eliminate insignificant types of accidents from being prenoticed. This coment was not accepted. Setting a threshold level for accident consequences could elimi,nate a group of amendheiits with respect to accidents which have not been previously,evaluatbd pr which, if.previously evaluated, mayturnouttohavemoreseveye nse,querices than previously . eval'uated. .q.- It is possible, for example, that there may be a class of license amendments sought by a licensee which, while designed to improve or
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increase safety may, on balance, irivolve a significant hazards consideration because they result in operation of a reactor with a redu'ced safety margin due to other factors or problems (i.e., the net effect is a reduction in safety of some significance). Such amendments typically r.re also proposed by a licensee as an interim or final resolution of some significant safety issue that was not raised or resolved before issuance of the operating license -- and, based on ,an evaluation of the new safety issue, they may result in a reduction of a safety margin believed to have been clear and present when the license was issued. In this instance, the presence of the new safety issue in the review of the proposed amendment, at least arguably, could prevent a finding of no significant hazards consideration, even D
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~ though the issue would ultimately be satisfactorily resolved by the issuance of the amendment.. Accordingly, the Comission has added to the list of examples a new example (vii) in the class of amendments considered likely to involve a significant hazards consideration. -u In additi'on, the Senate Comittee on Environment and Public Works e.... comented upon the Comission's, i roposed rule before it reported S. 1207. It stated: ~ The Comittee recognizes that reasonable persons may differ on whether a license amendment involves a significant hazards consideration. Therefore,.the Compittep expects the Comission to develop and promulgate standards that,'to the maximum extent practicable, draw a clear distinction between license amendments that involve a significant hazards consideration and thost that involve no significant hazards consideration. The Comitttee anticipates, for example, that con *sistent with prior practice, the Comission's standards would not permit a "no significant hazards consideration" determination for license amendments to permit reracking of spent fuel pools. Id., at p. 15. Accordingly, a new' example (viii), fitting somewhat indirectly into the standards, has been added to the list of examples to make clear that spent fuel pool rerackings are specifically considered likely to involve a significant hazards consideration. ~.. The Comittee also stated that: It expects that the Comission, to the extent practicable, will develop and promulgate standards that can be applied with ease and certainty. In addition, the determination of "no significant hazards consideration" should represent a judgment on the nature of the issues raised by the license amendment rather than a conclusion about the merits of those issues. Id. This statement alluded to the point that the proposed rule contained criteria to detemine whether a,n amendment requires prenotice
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s. . which were the same as the standards used to determine the merits of whether a requested amendment should be granted. In the same context, one comenter suggested that application of the criteria with respect.to prenotice in many instances will necessarily require the resolution of substantial factual questions which largely overlap the issues which bear on t'he. merits of the licensh a'mendment. The implication of the coment was that the Commission at the prenotic.ing stage could hock itself into a decision on the merits. Conversely, the comenter stated , that the staff, in using the no's'ignificant' hazards consideration ~ standards {was reluctant to give. prior noti'ce of amendments because its determination about the notice might bs viewed as constituting a negative connotation on the merits. Also of concern was the point that-
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the Comission, under the current regulations as well as under the proposed rule, could avoid notice entirely af ter making a determination of n'o significant hazards consideration. In any event, the legislation has made these coaments moot by separating the criteria used for public notice and comment on no significant hazards consideration determinations from the standards used to make a determination about no significant hazards consideration. Under the legislation, the Comission would not use the same criteria for notice and coment as it would for the standards on no significant hazards consideration determination. As fully described in the accompanying proposed rule on criteria-for notice and coment, the Commission would periodically (but not less frequently than once every thirty days) as e e
s ~_ publish for comment in the Federal Register notice of any amendments issued or proposed to be issued; it would use the standards in 5 50.92(b) to determine whether to issue a requested amendment and whether, under 9 2.105, to issue notice of " proposed action" and, thereby, to provide opportunity for a hearing. .'. i . The Cera.ission has left the prop ^ se,d rule intac.t to the extent that the o rule states standards with respecj to.the ' meaning of "no significant hazdrds consideration.", The sthnViards in the final rule are substan-tially idg,ntical to those in the. proposed rule, though the attendant language has been revised to make the determination somewhat simpler, as well as easier to use and understand. Based on coments received, the examples of amendments likely to involve, and not likely to involve, significant hazards considerations have been revised to ensure that determinations on significant hazards considerations do not prejudge the ultimate safety findings, i.e., that the no significant hazards consideration determinations are not identical to the conclusions in the final staff reviews with respect to the merits of the types of license amendments addressed by the ~ examples. To supplement the standards that are being incorporated into the NRC regulations, the examples will be incorporated into procedures of the Office of Nuclear Reactor Regulation, a copy of which will' be placed in the Comission's Public Document Room.
=.-. tv.- ~ EXAMPLES OF AMENDt1ENTS THAT ARE CONSIDERED LIKELY TO INVOLVE SIGNIFICANT HAZARDS CONSIDERATI'ONS ARE LISTED BELOW. (A seventh and eighth example have been added, as previously discussed.) (i) A significant relaxation of the criteria used to establish safety limi,ts. (ii) 'A significant relaxatio5'of the bases for limiting safety system settings or limiting conditions for; operation. .(iii) A significant relaxat, ion i'n limjting conditions for operation not accompanied by compensatory changes, conditions, or .g e ,t actions that maintain a comensurate level of safety. ' (iv) Renewal of an operating license, (v) iFdr a nuclear power plant, an increase in authorized maximum core power level. ,(vi) A change to technical specifications' involving a significant unreviewed safety question. (vii) A change in plant operation designed to improve safety but which, in fact, allows plant operation with safety margins of some significance reduced from those believed to have been present when the ~. . license was issued. (viii) Reracking of a spent fuel storage pool. EXAMPLES OF AMENDMENTS THAT ARE CONSIDERED NOT LIKELY TO INVOLVE SIGNIFICANT HAZARDS CONSIDERATION ARE LISTED BELOW: (i) A purely administrati,ve change to technical specifications: for example, a change to achieve consistency throughout the technical specifications, correction of an error, or a change in nomenclaturd. e o
r:- u mc.. 2 - 17 - (ii) A change that constitutes an additional limitation, restriction, or control not presently included in the technical specifications: for example, a more stringent surveillance requirement. (iii) For a nuclear power reactor, a change resulting from a nuclear reactor core reloading, if no fuel assemblies significantly different f, rom those found previo,usly acceptable to the NRC for a 1 ~ , pre'viouscoreatthefacilityin(q'uestionareinvolved. This assumes that no significant changes are m{de' to the acceptance criteria for the technical specifications, that th'e analytical mettiods used to demonstrate conformancywiththetechnical.specificationsandregulationsarenot significantly changed, and that NRC has previously found such methods ~ acceptable. ~ (iv) frelief. granted upon dem,onstration of acceptable operation from an operating restriction that was imposed because acceptable operation was not yet demonstrated. This assumes that the operating restriction and the criteria to be applied to a request for relief have been established in a prior review and that satisfaction of the criteria are essentially self-evident. ^ (v) Upon satisfactory completion of construction in connection with an operating facility, a relief granted from an operating restriction ~ that was imposed because the construction was not yet completed satis-factorily. This is intended to involve only restrictions where it is essentially self-evident whether construction has been completed satis-factorily. 0 e 0
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y = -. -.. =... I .g i' ,j w _1g, (vi) A change which either increases the probability or consequences of a previously-analyzed accident or reduces a safety margin but for which the results of the change are clearly within regulatory acceptance criteria: for example, a change resulting from the application of a small refinement of a previously used calculational model or' design method. = .(vii) A change to make a, license confom to changes in the regulations, where the license-chjtnge.results in vbry minor changes to ~ facility operations clearly in keeping with the regulations. ' (vii,i,;) A change to a license to refle'ct a minor adjustment in ownership shares among co-owners already shown in the license. Pape$vorkReductionActStatement
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.This final rule contains no new or amended requirements for recordkeeping, reporting, plans or procedures, applications or any other type of infomation collection. Reculatory Flexibility Certification In accordance with the Regulatory Flexibility Act of 1980, 5 U.S.C. 605(b), the Comission certifies that this rule does not have a significant economic impact on a substantial number of small entities. This rule affects only the licensing and operation of nuclear power plants. The companies that own these plants do not fall within the scope of the definition of "small entities" set forth in the Regulatory Flexibility Act or the Small Business Size Standards set out in regulations issued by the small Business Administration at 13 CFR Part 121. Since these companies are dominant in their service areas, this rule does not fall within the purview of the Act. - ~ e e
s s -x w p . [ Part 2 - Rules of Practice Administrative practice and procedure }(,c vhe) Antitrust Byproduct material N3 4 p# Classified information q, Environmental protection p yD b ph Nuclear materials Nuclear power plants and reactors Penalty Sex discrimination Source material Special nuclear matirial Waste treatment and disposal Part 50 - Domestic Licensing of Production and Utilization Facilities Antitrust Classified information Fire prevention 16vyeecola) rddlens hwr vowerp6ks 4 rucbvs h4 Nialiondedech'.cn %ek q c.r k ;r hy.km rey,r<na ds
L~iW~~b~F*906)c%TV TrWTFT~ Pee 7Y 2 WCo ^ ~ p[Ir su+ ~i~htseras 04M he D" *fF*sk "yh f e.. 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 it hereby given that the following amendments to Title 10, Chapter I, Code of Federal Regulations
- 2. Q 10 CFR Parts {0, are published as a document subject to codification.
s -List. vT ';st,jects in 10- C"'1 Path 4-and 50. ]. - D 9 Phi (je, t.u y uv ide thc58uss-temQ ' i PART 2--RULES OF, PRACTICE FOR
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DOMESTIC LICENSING PROCEEDINGS 1. The authority citation for Part 2 continues to read as follows: . Authority:Seca.1et 1st 98 Stat. Ms. 353 ~1 (42 UAC. 2201. 2231) sec.191. as amended. Pub. L 87-415. 76 StaL 400 (42 USC 2241) sec. 201. Pub. L 93-434. 88 Stat.1242, as <t v vun TTT amended by Pub.L M-re, se Stat. 413 (42 T' C"M USC 5641) 5 UAC 551 (Section 1101 also issaed under secs. 53. E2. EL 103.104.105. 68 5 tat. 930. 932. h35. 938 937. 94 as amer'ded (42 USC 2C73. 2093. 211L 2133. 2134,2135h sec.102. Pub. L 91-190. E3 Stat. 853 (42 USC 4332) sec. 301,88 Stat.1248 (42 USC 5871). Sections 2.1c2. 1104. 2.105. 2.721 also issued under se:s.132 1c3.104.105.183.180. 68 Stat. 94 937. 938 S54. 955, a a amended (C USC 2132,2133. 2134. 2135,2233,2229). Seetions 2.200-2.206 also issued under sec.186. 68 Stat. 955 (42 USC. 2236) sec. 206. 88 Stat.1240 (42 USC. 5666). SeetJens 2.600-2.606. 2J30. 2.772 also issued under sec.102. Pub. L 91-190. 83 Stat. 853 (42 USC 4332). Sections 1700s. 2.719 also issued under 5 USC'554. Sections 1754, 2.760. 2J70 also issued under 5 UAC 557. Section 1790 also luued ender sec.103. 68 l . *st. 9% as amended (42 USC 2133). Sections 2.800-2.807 also issued under 5 USC 553. Seetion 180s also issued under 5 USC 553 and sec.1C2. 83 Stat. 853 (42 USC 4332). Section 2.809 also issued under 5 USC .553 and sec. 29. Pub. L 85.-2% 71 Stat. 579 ee amended by Pub. L 95-209. 91 Stat.1483 (c USC 2tne). AppendLa A is also issued under sec. s. Pub. L et-sec. M Stat.1472 (42 UAC i 2135)) e
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.t j 2. In 5 2.105, paragraph (a)(3) is revised, paragraphs (a)(4) through (a)(8) are redesignated as paragraphs (a)(5) through (a)(9), and a new E paragraph (a)(4) is added to read as follows: % 2.105 Notice of proposed actio. hN -At:# (a) If a hearing is not required by the Act or this Chapter, and if the Comission has not found tha,t a hearing,is in the public j interest, it will, prior to acting t' hereon', cause to be published in the i \\ {, FEDERAL REGISTER a notice of' prop'6 sed action.with respect to an 'j applicatign for: e s (3) An amendment of a license specified in paragraph [(a)(1) or] (a)(2) of this section and which involves a signficant hazards consider-ation; (4) An amendment to an operating license for a facility licensed under sections 103,104b., or 104c. of the Act when the Comission in ~.. its analysis, using the standards in 650.92(b) of this chapter, deter-mines that there is a sianificant hazards consideration; JJ Additions to the currently effective regulation are underscored and deletions are within brackets. Before publication in the Federal Register, the underscores, brackets and this footnote will be deleted. m .y.y-r A
I dica #L 3 g (M g pge - on AUTHORITY: Secs.103,104,161,182,183,186,189, 68 Stat. 936, 937, 948, 953, 954, 955, 956, as amended, sec. 234, 83 Stat. 1244, as amended (42 U.S.C. 2133, 2134, 2201, 2232, 2233, 2236, 2239, 2282); secs. 201, 202, 206, 88 Stat. 1242, 1244, 1246, as amended (42 U.S.C. 5841, 5842, 5846), unless otherwise noted. Section 50.7 also issued under Pub. L. 95-601, sec.10, 92 Stat. 2951 (42 U.S.C. 5851). Section 50.78 also issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152). Sectio 50.80-50.81 also issued under sec. 184, Sechan 60 92. n\\% issve d unLs VM;c Lw - Stat. - 68 Stat. 954, as amended (42 U.S.C. 2234).k Secti,ons 50.100-50.102 also issued under sec.186, 68 Stat. 955 (42 U.S.C. 2236)b ( % S.C -- For the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C. 2273), 'SS501Ta), (b), and (c), 50.44, 50.46, 50.48, 50.54, and 50.80(a) are iss_ued under sec. 161b, 68 Stat. 948, as amended (42 U.S.C. 2201(b)); ff 50.10(b) and (c) and 50.54 are issued under sec. 161i, 68 Stat. 949, as amended (42 U.S.C. 2201(i)); and SS50.55(e), 50.59(b), 50.70, 50.71, 50.72, and 50.78 are issued under sec. 1610, 68 Stat. 950, as amended (42 U.S.C. 2201(o)). 4 a f
- = _. _. _ =. ,, p1 ; PART 50 - DOMESTIC LICENSING 0F PRODUCTION AND UTILIZATION FACILITIES 3. The authority citation for Part 50 is revised to read as follows: ht1Tc.h C ion - yam 0ffD3t. fAJC. e .--G d a rhi'ips te renvide standard referane=]_, ..l. , S=tir se.= :1= imp =* ram u m --( c.;g. 1 C i 4. In550.58,paNgraph(b)isr,evisedtoreadasfollows:
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550.58 Hearings and report of the Advisory Comittee on Reactor Safeguards. ~ g w. (b)(1) The Comission will hold a hearing, after at least 30-days' noticeandpublicationonceintheFEDERALREGIS[ER on each application 2 for a construction permit for a production o,r utilization facility which oF b;f Prl is of a type described in 550.21(b) or 550.22for which is a testing facility. When a construction permit has been issued for such a facility following the holding of a public hearing and an application is made for an operating license or for an amendment to a construction permit or operating license, the Comission may hold a hearing after at least 30-days' notice and publi. cation once in the FEDERAL REGISTER. [of-]
c-- ( I , g g, ~ In the absence of a request [therefore] for a hearing by any person whose interest may be affected, the Comission may issue an operating license or an amendment to a construction permit or operating license, without a hearing, upon 30-days' notice and publication once in the FEDERAL REGISTER of its intent to do so. ~ (2)".If the Commission finds that no significant hazards consideration is presented by an application fon ah amendment to an [ construction t or] operating license fo'r a& facili (b)(1),usingthestandardsin950.92(b),~(rltdescribedin agraph
- u. a;,~
rs t ) -it~ may dispense with notice [and publication] of proposed action under % 2.105 of this chapter and (ii) it may issue the ame'ndment, notwithstanding the pendency before itofardadestforhearingfromanyperson. Such an amendment may be issued and made immediately effective in advance of the holding and completion of any required hearing. 5. Sectic,50.9) is redesignated as s 50.92 and revised to read as follows: 9 50.92 [50.91] Issuance of amendment. ~ (a) In determining whether an amendment to a license or construc-tion permit will be issued to the applicant, the Commission will be guided by the considerations which govern the issuance of initial licenses or construction pennits to the extent applicable and l appropriate. \\
I: 23 ; (b),The Commission will determine that a proposed amendment to an operating license of a facility licensed under 9 50.21(b) or aF % gwt 6 50.22Jor of a testing facility involves no significant hazards n consideration, unless it finds that operation of the facility in accordance with the proposed amendment wceld: "(1) Involve a significant ESeaseintheprobabilityor ~ consequences of an accident from any accident previously evaluated; = .e (2) Create the possibility of a new or different kind of accident from any accident previously evaluated; or
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(3) Involve a significant reduction in a margin of safety. (c) If the Connission determines that the application involves the material alteration of a licensed facility, it will issue a construction permit before it issues [will be issued prior to the issuance of] the amendment to the license. (d) If the Comission determines that the amendment involves a significant hazards consideration, [the Comission] H will give notice of its proposed action pursuant to 5 2.105 of this chapter before' acting 4 g en O
= w. .-_ a i ,e. (. l- !Y j s. j. [ thereon] on the amendment. The notice will be issued as soon as i practicable after the application hat, been docketed. Dated at Washington D.C. this day of 1982. ~ ~.,, for the Nuclear Regulatory Comission, }-: l .. ~. l i._, - 7 Samuel J.lChilk Secrdtary'far the Comission s s 4.' 9 I ~. 9 e 9 e e o G _A
~ s. [7590-01] NUCLEAR REGULATORY COMMISSION 10 CFR Parts 2 and 50 Criteria for Notice and Public Coment and Procedures for State gesnyti ne bS" - i, Consultation on License Amendments Involving (opg pt,n-ng. No Significant; Hazards Consideration b Ad ^ y,,,, l s,,.I ~ << = 4 S ee m ny% g g, gg .~ Pnj," 3 ic AGENCY: Nuclear Regulat6ry Comission NRC S onrepul ) f,"f,,)' A ch** W o * .a t ACTION: Proposed rule. s
SUMMARY
- The NRC is proposing to amend its regulat ons to specify criteria for providing,,or dispensing with prior notice and public coment on deter-taination n bo'ut whether amendments to operating licenses for certain facilities involve no significant hazards consideration.
It is also pro-posing procedures for consultation on these determinations with the State in which the facility of the licensee requesting the amendment is located. (Q,)( wlTIDL ~b^*j* n,,) (so do 90 ont B W ew DATES: Coment period expires 30 days following publication in the FEDERAL REGISTER). Coments received after this date 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: Written coments should be sent to the Secretary of the Comission, U.S. Nuclear Regulatory Comission, Washington, D.C. 20555, a en g a m )
9 ll. 4 , Attention: Docketing and Service Branch. Copies of comments received on the proposed rulemaking may be examined and copied for a fee in the Comiss' ion's Public Document Room at 1717 H Street, N.W., Washington, D.C. FOR FURTHER I,NFORMATION CONTACT: [Th'omasF.Dorian,Esq.,Officeofthe Executive Legal Director, U.S. Nuclea.r Regulatory.Comission, Washington, D.C. 20555. Telephone: (301)492-s690.. SUPPLEMENTARY INFORMATION: e 't Introduction
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On , Congress passed Public Law to authorize appropriations for NRC and for other purposes. Among other things, the legislation directs NRC to promulgate regulations which establish (a) standards for determining whether an amendment to a license involves no significant hazards considera-tion, (b) criteria for providing or dispensing with prior notice and public coment on such a determination, and (c) procedures for consulting on such a, determination with the State in which the facility of the licensee requesting the amendment is located. The legislation also authorizes NRC, to issue and make imediately effective an amendment to a license, upon a determination that the amendment involves no significant hazards consideration, e'ven though NRC has before it a request'for a hearing by an interested person. Addition-ally, the legislation specifies that such an amendment may be issued and made imediately effective in advance of the holding and completion of any required hearing.
tv.- . j j .w .. This proposed rulemaking and request for coments responds to the statutory directive that tiRC expeditiously promulgate regulations for (1) providing or dispensingwithpriornoticeandpubliccommentonwhethefalicenseamend-ment involves no significant hazards. consideration (item (b) above), and (2)providing'forconsultationonsu'c'hadeterminationwiththeStatein which the facility is located (item.(c) above). The new legislation, affected prior legislation, and fir 0!s curren't repulations and practige are discus' sed in the statement of ccnsiderations 3ccompanying the final regu-fations f4RC..is publishing today in.,this issue'.of the Federal Register as the first document in this separate part. Tlie final regulations specify the standards for determining whether amendments to operating licenses for M! gertain.f cilities involve no significant hazards consideration (item (a) t above). Criteria for Providing or Dispensing with Prior tiotice and Opportunity A. for Public Coment Section 12 of Public Law requires tiRC; during the 90-day period following the effective date of the law, to promulgate regulations estab-lishing criteria for providing or, in emergencies, dispensing with prior rotice and reasonable opportunity for public coment on whether an amendment to an operating license involves no significant hazards consideration; it also requires f4RC to take into account the exigency of the need for.the amendment involved. The reguirement was explained by the Senate Comittee on Environment and Public Works in its report on S.1207, the Senate bill which eventually became part of Public Law The Comittee stated: The requirement... that the Comission promulgate criteria for providing or dispensing with prior notice and public i = l
w_a - - - - - ----- m.m. _. 2 4 coment on a proposed determination that a license amendment involves no significant hazards consideration reflects the intent of the Comittee that, wherever practicable, the Comission should' publish notice of, and provide for public comment on, such a ~ proposed determination. The Comission has advised the Comittee that in some cases the need to issue the proposed amendment will arise quickly, and failure to act on the amendment may result in the shut-down or derating of the plant. The Comittee recognizes that the. need to act promptly:.in such situations may foreclose the opportunity for prior public potice and coment. However, in all other cases, the Comittee expects the Comission to exercise _its authority in a manner that will provide for prior public notice and coment. (Emphasis added.) May 15, 1981, at p. 15. ~ Senate Report No. 97-113, section 12 of Public Law ' specifies that:I The Co$iission shall periodically (b$t nok less frequently than once every thirty days) publish notice of any amendments issued or proposed to be issued... Each such notice shall include all amendments issued, or proposed to be, issued, since the date of publication of the last such periodic notice. Such notice shall. with res.pect to each amendment on proposed amendment (1) identify the facility involved; and (ii) provide a brief description of such amendment. Nothing in this subsection shall be construed to delay the effective date of any amendment, Presently, under 10 CFR 2.106(a)(2), the Comission nomally provides notice after it has issued a license amendment. However, where it determines that a significant hazards consideration is involved, under i 2.105(a)(3) it publishes a notice of " proposed action." This is not a notice for public comenti rather, it is a specific method for providing an opportunity for a'- public hearing. The Comission proposes to bu'ild on this foundation. To implement the Congressional mandate, the proposed regulation would require that, as a normal matter, NRC notice for public coment an amendment request after the staff has made a proposed determination that no significant hazards consideration is involved but before it has made the final determination'and issued the license amendment. Accordingly, the Comission proposes to amend its regulations in 10 CFR Part 50, " Domestic Licensing of Production and r.
y ~ a_.
x--
~ \\, v 4 ..s. ~ Utilization Facilities," h :yNising% 50.91 ;==rit to :..p:......... k r, re t. dd : n N RC. we'h
==11y publish in the Federal Register a notice of a proposed determir]ation on an application for an amendment to an operating license with a request for public coment. (The staff's determination about no significant hazards ~ considerati'on.would be made under it new 10 CFR 50.92(b), discussed in the i first document in this separate p,ait.) The Comission expects the licensee to make known to the staff its views, a' out the issue of no significant hazards-b , consideration when it files its ainendment request.. Thirty days would normally 'be provided,jor public comment. '[ e s / 3 If the C6 mission receiveiadverse coments on the proposed determination; . :l! it would take. them into account in its final determination. Additionally, if the Comission receives a request for a hearing during this cement period, the Comission would not act on the hearing request until after it has made the final determination on no significant hazards considera-tion. If the person requesting a hearing meets the provisions fo-inter-vention called for in 10 CFR 2.714, the Comission normally would hold a hearing only after it issues an amendment, unless it determines that a significant hazards consideration is involved.. If the Comission determines in its proposed determination or in its final detemination that a significant hazards consideration is involved, instead of issuing the proposed determination on no significant hazards, it would issue a notice of " proposed action" under 5 2.105, providing an opportunity m
, for a prior hearing. The Comission may also hold a prior hearing in any case in which it finds that it is in the public interest to do so. A concern with the notice and coment procedure discussed above is that a staff detednination--even a quick.first cut--would take time; and this period = coupled with the waiting period f,oh.public comment before the ultimate finding on the merits of the amendment itself.could 'be made, could, in some instances,- put the staff in the position of inaking the requisite safety determinations and acting pn an amendment request. at the,11thihour in ' order to avoid derating or shutting-down the plant, thereby foreclosing a reasonable opportunity for public comment. Therefore, in keeping with Congressional intent, if the -
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\\ Commission receives an amendment request where the need to issue the proposed amendment arises quickly, for example, where failure to act on the amendment may result in the shut-down or derating of the plant, then, under 5 50.91, it would proceed to publish in the Federal Recister a notice of receipt for public comment on the issue of no significant hazards consideration, but would not delay its analysis of the issue or the effective date of any amend-ment to await public comments. This procedure would allow the public to, comment on the issue of no significant hazards. consideration at the same time as staff analysis is proceeding. I In an extraordinary case, when the Comission does not have time to' publish i either a notice of receipt or a notice of a proposed determination under. 5 50.91, it would publish a notice of issuance under 5 2.106, as described l below. In this instance, if it determines that there is no significant
1 ~ 'o' %e o.. . hazards consideration and makes the requisite safety findings, it would issue the amendment but, as noted above, a hearing, if requested, may be held after issuance of the amendment. On the other hand, if the Commission determines that there is a significant hazards consideration, it would, under 5 2.105, 1-normally prov,ide thirty-days' prior notice of " proposed action" on the t. _., i reque'sted amendment in order to affo'rd an opportunity for interested persons ~-. to request a hearing on the determi.natio.n. -(This notice could be issued instead of the notice under 5 50.91'or at any', time after issuance of that e o notice.) ~~ Of course, the Commission retains its separate authority to impose amendments .g, onlicenseespithoutpriornoticeand;hearingifitfindsthatthepublic health, safety or interest so requires. See 10 CFR 2.202(f) and 2.204. Under the new provisions, the Commission would, in effect, normally provide prior notice for public comment as to the issue of no significant hazards consideration on all requests for amendments to certain operating licenses. As mentioned before, under 5 2.106(a)(2) it presently provides notice after the fact by publishing notices of issuance for.all these license amendments. Therefore, to avoid duplication of notices, the Commission proposes to amend 5 2.106(a)(2) by providing for notice of issuance of an amendment only when (1) it has made a determination that an amendment request involves a signifi-cant hazards consideration and it has published a notice of prcposed action under 5 2.105 providing an opportunity for a public hearing; or (2) it has received adverse public comment about the issue of no significant hazards' consideration on a requested amendment under the previously published notice e
z:= (. , for public comment and has decided in its final determination that there is no significant hazards consideration; or (3) it has had to act quickly 'on the amendment request in order to avoid the shut-down or derating of the plant and has not published a notice of receipt or a notice of a proposed deter-mination un' der 1 50.91. = To provide a practical basis for implementirig the new legislation, for , amendments requested before the e'ffective dats.of the final regulation on which the Comission has not acted by that da'te, the Comission proposes to keep its present procedures in Part 2, providing notice of proposed action and opportunity for a hearing under 9 2.105, where appropriate, and notice of
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issuance under 5 2.106. In addition,$it would use the State consultation procedures, described below, for these amendment requests. B. State Consultation As noted above, Public Law requires the Comission to consult with the State in which the facility involved is located and to promulgate regu,, lations which prescribe procedures for such consultation on a determination that an amendment.o the facility license involves no significant hazards consideration. The Senate Comittee on Environment and Public Works explained this requirement in its Report, cited earlier, as follows: The requirement compleroents the directive 't... [the Senate bill] that' the Comission, in deterrdining whether an amendment involves no significant hazards consideration, shall consult with the situs State. The Comittee expects that the procedures for State con:,ultation will include the following elements:
. ~. \\ s. j 9 (1) The State would be notified of a licensee's request for an amendment; (2) The State would be advised of the NRC's evaluation of the amendment request; (3) The NRC's proposed determination on whether the license amendment involves no significant hazards consideration would be discussed with the State and the NRC's reasons for making that determination would be explained to the State; (4) The NRC would listin"to and consider any comments prdvided by the State official designated to consult with the NRC; and (5) The NRC wo01d make a ' good faith attemp't to consult with the State prior to issuing the license amendment. t the same time, however, t'he" procedures for State consultation would not: y t '(1) Give the State a ri'ght to veto the proposed NRC determination; (2) Give the State a right to a hearing on the NRC determination before the amendment becomes effective;
- (3) Give the State the right to insist upon a postponement of.the NRC determination or8 issuance of the amendment; or
~ (4) Alter present provisions of law that reserve to the NRC exclusive responsibility for setting and enforcing radiological health and safety requirements for nuclear power plants. In requiring the NRC to exercise good faith in consulting with a State in determining whether a license amendment involves no significant hazards consideration, the Comittee recognizes that a limited number of cases may arise when the NRC, despite its good faith efforts, cannot contact a responsible State official for purposes of prior consultation. Inability to consult with a responsible State official following good faith attempts should not prevent the NRC from making effective a license amendment involving no significant hazards consideration, if the NRC deems it necessary to avoid the shut-down of a power plant. Id,., at
- p. 16.
The Comission believes that the law and its legislative history ar.e quite ~ specific. Accordingly, the Comission proposes to adopt the elements described above. The Comission notes three points in connection with the legislative ~ history. First, the Comission would do its best to consult with the State, before it makes a determination about no significant hazards e
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a , consideration, but on very rare occasions may be unable to do so. In these few instances it would inform the State about its actions as soon as it'.can. The Comission's regulations in 5 2.106 would cover this situation.
- Second, though the Comission intends to giy.e careful consideration to the coments providedtdi,tbytheaffectedSta)e"onthenosignificanthazardsquestion, the State coments are advisory to'.th.e Comission; the Comissrion remains responsible for making the final adhinistrative decision on the ques, tion.
. Third', State consultation does not' alter preshnt provisions of law that reserve tc.the Comission exclusive responsitiility for setting and enforcing radiological health and safety requiremeiits for nuclear power plants. K Papemork Reduction Act Statement Y n )R;h e r j, This proposed rule contains a new reporting requirement which will be sub-p mitted to the Office'of Management and Budget for its review under the Papemark Reduction Act. Regulatory Flexibility Certification 3[7,4 In accordance with the Regulatory Flexibility Act of 198, 5 U.S.C. 605(b), the Comission certifies that this rule does not have a significant economic impact on a substantial number of small entities. This rule affects only the licensing and operation of nuclear power plants. The companies that own these plants do not fall within the scope of the definition of "smal1 entities" set forth in the Regulatory Flexibility Act or the Small Business Size Standards set out in regulations issued by the Small Business Administration at 13 CFR Part 121. Since these companies are ' dominant in their service' areas, this rule does not fall within the purview of the Act.
- Part 2 - Rults_ of Practic7 u) 7 g
-Administrative practice and procedure e t I ;3h WY:b " il3Miw i y Antitrust Oh
- Byproduct material f3 yt UT 1/ I 0
Classified information [0 Environmental protection hy Nuclear materials Nuclear power plants and reactors
- P;nal ty Sex discrimination
. Source material Special nuclear material Waste treatment and disposal Part 50 - Domestic Licensing of Production and Utilization Facilities - Antitrust Classified information Fire prevention 1 6 rp e e dfal rd dlens mckr vowe> phks q ruebrs hwi Min)-lost iedechkyt bcb sa $ er:6:4 hy.4;$ r7 ~ms 1 t i
T r. . [N.*JasT' oE SbGMCTS h) T0.C(( P4d7S2 4@ Cl) ;j$a s ;'f m )t fc,s-) N ar}s 2 f-S'D 0 f [ ?lue % tspurvT NM Wl.'- f k (mery ?!opez,),.,s hi} *( '41f
- t "*"ded, Accordingly, pursuant to the Atomic Energy Act of 1954, as amended,fand sec-tion 553 of Title 5 of the United States Code, notice is hereby given tilat Rds ExJ adoption of the following amendments to 10 CFR $ 50 is contemplated.
PART 2-R LES OF PRACTICE FOR DOMESTIC UCENSING PROCEEDING 1 Thesaurus: s' " - '" " i s 4
- gpe authority citation for Part 21e-
_. _ d to read as follows: f ~ - Authority: Secs.1n.181. 68 Stat. 948. 953 1 (42 USC 2201,2231); sec.191. as a= ended. Pub. L 87-c15. 76 Stat. 409 (42 USC 2241): b sec.201. Pub. L 93-438,88 Stat.1240 as amended by Pub. L 94-79,89 Stat. 413 (c USC 5641):! U.S.C 55L (Section 1101 also issued under sect. 53, t.2. PART 8t a m. w4 Stat. s30. 932. su. saa. 937. 938. as amended (c USC 2373,2093 2111. 2133,2134. 2135): sec.102. Pub. L 91-DOME 190. 83 Stat. 653 (c USC 4332); sec. 301. 88 Stat.1248 (c USC 5e71). Sections 2.107 ~~~ 2.104. 1105. 2.721 also issued under seca. tc2, 103,104.105.183.189. 68 Stat. 936. S37. G38 ,g[ G54. 955, as amended (c USC 213L 2133. 1. The authority cit ' 2S' 2225 2228 2228) 5*cti "' N " also iseued under sec.186. 68-Stat. 955 (42 d5-USC 2236); sec. 206,88 Stat.124e (42 USC 5646). Sections 2.600-2.606,2.730.1772 also issued under sec. tc:. Pub. L 91-190. 83 Stat. 853 (42 USC 4332). Sections 170os. 2.719 N IIIOEIIY-CeCT.161p ;.d ' also lsaued under 3 UAC 554. Sections 2.754. gnf 953 1760,2.770 also issued under 5 USC 557. ~
- f. d ') If < r 99^11 ' u n u' cc.M
- Section 1793 also Issued und-r sec.103,68 a69 Sta1.936, ae amended (c USC 2133). '615 776-Stat., ---'W/ t Sections 2.800-2.807 also issusd under 5 USC 553. Section 2.aos also Lasved under 5 ._ 4QQ2 1I q r-eoa*4-e USC 553 and sec. ic2. 83 Stat. 353 (c UAC 4t8tPI242- "~ "* ' 4332). Section 2.809 also issued under 5 USC - (42 U.S.C. 5041), 5 U.C.C, [ .553 and sec. 29. Pub. L 85-258. 71 Stat. E*9. as USC 2030). Appendix A is also leaved under l Ions 2. dbh*"* amended by Pub. L e5-309. 91 Stat.1483 (c -2.-206 abc :.ssued r & -_n :. see. e, Pub. L,1-8eo. u stat. ur2 (u USC -fgru.s.c, 212s)) -2225) :nd sec. 200, M.L. 02 4??, stgue! (: ; g.3.c.- ;040)--ss- -tica;-2.000 - 2.000-ehe-4e"ad "ader-5 LS.C.-553:--{ John-PhRipsb 2. In 5 2.106, paragraph (a)(2) is revised to read as follows:E y Additions are underscored ai.d deletions are in brackets. e m
c .m _ _ _ __ ~ _ e.. , 5 2.106 Notice of issuance.
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(a) ine Director of Nuclear Reactor Regulation or Director of Nuclear Material Safety and Safeguards, as appropriate, will cause to be i published in the Federal Register notice of, and will infonn the State and lo'ca.1 officials specified.'.iri. 5 2.104(a) of the issuance of: ]' (2) An amendment of a license.lfor.a facility of the type described in 6 50.21(b) or i 50.22 of this' chapter, or.a te n cility,[wheth ornot[..foranamendmentrequestreceive'd{after5effectivedateof'i;,eb y& n ~ i^=3 where the Commission has received adverse pub)ic econinents_ of jhn chegl4-pursuant to the proposed determination published under 5 50.91t and h'as cc h decided.in its final determination that there is no significant hazards consideration; (ii) or where it has had to act quickly to avoid the ~ shut-down or derating of the facility and has not published a notice of receipt or discussed it_s proposed determination with the appropriate ot-W1is tha State Official under 9 50.9h;jbor (iii) for which a notice of proposed & ibN j%rf 4 action under 9 2.105Ahas been published previously [ published]. If the 't "murY tQ, s udn amendment request is received before { effective date of - --"'-+f^^], the Connission will provide the notice and information procedures in effect at the time the amendment is received. 9 e g a-
e Sev (d 1L s' ar D O v! Mr* '. C k e h e k }L e_ 0 f 1 \\ AUTHORITY: Secs.103,104,161,182,183,186,189, 68 Stat. 936, 937, 948, 953, 954, 955, 956, as amended, sec. 234, 83 Stat. 1244, as amended (42 U.S.C. 2133, 2134, 2201, 2232, 2233, 2236, 2239, 2282); secs. 201, 202, 206, 88 Stat.1*_ 2,1244,1246, as amended (42 U.S.C. 5841, 5842, 5846), unless otherwise noted. Section 50.7 also issued under Pub. L. 95-601, sec.10, 92 Stat. 2951 (42 U.S.C. 5851). Section 50.78 also issued under sec. 122, 68 Stat. alsoissuedunder(sec.184,V. S. C. ~). 939 (42 U.S.C. 2152). Sections 50.80-50.81 Skt. --- $ec};oh 60.4I Also issu cl umJer Pak. l -> 68 Stat. 954, as amended (42 U.S.C. 2234). Sections 50.100-50.102 also issued under sec.186, 68 Stat. 955 (42 U.S.C. 2236). For the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C. 2273), SS 50.10(a), (b), and (c), 50.44, 50.46, 50.48, 50.54, and 50.80(a) are iss_ued under sec.161b, 68 Stat. 948, as amended (42 U.'S.C. 2201(b)); SS 50.10(b) and (c) and 50.54 are issued under sec. 161f, 68 Stat. 949, as amended (42 U.S.C. 2201(i)); and S$50.55(e), 50.59(b), 50.70, 50.71, 50.72, and 50.78 are issued under sec. 1610, 68 Stat. 950, as amended (42 U.S.C. 2201(o')).
g ~ = s. '+ c' .j 13 - 4p'O h 1 ,i g; ir. ;y (l j b4PART.50--DOMESTICLICENSING0F cr 0 PRODUCTION AND UTILIZATION FACILITIES N read 3. The authority citation for Part 50 is revise as follows: x.... s ^LTHORIP : Sec:.103. !% 161,,102,19?,199, 69-Stat. "30 r 937, 348, S',3r-
- cer, i,n -v.a.u,'
_ er, nec - - -,,s.e,*_o 2%,-223o, e m_ - -, o. o., n. s,., cise m., - ........ s - ,caec ___,um, cvv, vo .mx .,n, emm .,..s,- --.m v.a.u., ao,..4, . ~,. a,6 ,s, ic, c ' 58 5)_ "alep ;th;r,;i x :ted. S : tie-Sn ?S ihr Nr:d ;nder ^ :. !99 --65 5i.ai. 335 (42 v.5.C. 215^)---Sections 260:80-50.&l-alse-%s tred-e-de-is - --IS', 69 Et. 354, as o..S'^d (d? '.'.0.0. 223'. }-Section 50:91 eirdssuad., t' .._a__ m1 c _. ..e e s .- 6 4. m m e -- -_-_ __..m. nn inn en
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s__...,... w. s em. i.umd m.uu sec. 156, oo U:5.C. 055-(-42.g e e ??36).==Ter the purposes + '22G, 0^ 5 tai. 050, as :::r ed (42-U:5-t--2273)- 150:54-(t)-issU'ed under-d -seu. ---section 1511, 5S Std- -949-{42-WS r-2201(i)), is50r70,-EO 71 and 50.78 -4med unde, sec. -161o, SS StatM50, ;: : mended-{4EU:S.C. 2201( -)), :nd thc. 4m: refened to in the Ap.pendices.
- ticr.-50r91-elso-1ssued-unde,- Ster-1F vi^ FJb71.T
{Jurm' Fhliipsb 4. 3 _ _. een n, __3_ _ _ ; hi O S0 *11 AYC YN5 5 ~1 te Sec '**on eA I" .ai en 7 \\. ...... n _ _. o rea as o oWs, a.w.s4 a y..,,.,-. 550.91 Public notice and connent; State consultation.M Werk 4*wdm(a)ed With respect to applications received after effective date of -f'n:1 r:1 ], as soon as practicable after receipt of an application for an G e
= .w , amendment to an operapi,gg licegse for a facility which is of a type described or fMr PATI in 5 50.21(b) or 5 50.22, or which is a testing facility, the Comissio'n: h 4 (1) Will normally make a proposed detennination about no significant + ~ hazards consideration and publish fod.'coment in the Federal Register a notice of proposed issuance of tie:. amendment. The notice will identify the l facility concerned, briefly describk t'he requested amendment, and provide a ,30-dai coment period (unless for'(jood reason'it provides a sh rter period) ~ E s;s prf on the quest, ion of whether, pursuant to the criteria in' 5 50.92(b , the amendment involves no significant hazards consideration;
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(2) Wil.1 publish for public coment in the Feder_al Register a notice of (& ,{+:s see Hon - receiptinthemannerdescribedineebparagraph(1)),whentheneedtoissue 4 the proposed amendment arises quickly, such as in an instance where failure to act on the amendment may result in the shut-down or derating of the plant; ob ihis eb kr f (3) Will publish a notice of issuance under 5 2.10% when, in an emergency, it does not have time to publish either a proposed determina-tionoranoticeofreceiptd A .o[ lh;s sedim (b) The licensee requesting an amendment under paragraph (a)fshall make its views, if any, about the issue of no significant hazards consideration, I known to the Comission when it files its application for the amendment.. (c) The Comission will provide for State consultation on its deter- ? ~ mination about no significant hazards consideration as follows: l
w.-.-- . = - -. -....= L * ', w 15 - (1) Each licensee applying for an amendment to an operating license for oic %.3 sec W A a facility specified in paragraph (a)fshall notify the State in which the licensee's facility is located of the licensee's request for an amendment by providing to that State a copy of the application, and shall indicate on the application' that it has done so. ','.. (2) After its evaluation of the amendment request, the Comission nomally will discuss with the State its proposed determination on no sig-nificant hazards consideration, ihcluding its'. reasons for making the deter-mination. {he Commission will consider any coments of the State official designated to consult with it in its detennination on no significant hazards consideration. After it Tssues the requested amendment, the Comission will send the St$k a copy of the amendment, appending its eva)uation. )nur} % -tk ~ -~ 3) Forallamendmentrequestsreceivedbeforegeffectivedateo Mul-g&e-r(but not issued ard for all amendmer.t requ d Wo+ dao Arwi -lk awW date of-fNy r"le],' the Comission will make a good faith attempt to consult g with the State before issuing the license amendment. If failure to act quickly on the amendment, however, may result in the shut-down or derating of the plant, the Comission may dispense. with rior State consultation. In ,(Whech y thisinstance,asspecifiedini2.10%it 11.1 inform the appropriate State official as soon as it can. M) V) -fe) The State consultation procedures in paragraph-fH-of this section do not give the State a right: (1) To veto the Comission's proposed determination; (2) To a hearing on the determination before the amendment becomes effective; or e A
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Y.. , (3) To insist upon a postponement of the determination or issuance of the amendment. Dated at Washington, D.C. this day of 1982. For the Nuclear Regulatory Comission, .A Samuel J. Chilk Secretary for the Comission h, s G l4 ! + en n 0 4 0 9
y, ._ _ _ _ _ u _. _ x. _._1 [7590-01] NUCLEAR REGULATORY COMMISSION 10 CFR Parts 2 and 50 Temporary Operating Licenses AGENCY: Nuclear Regulatory Comission ACTION: Final rule.
SUMMARY
The Commission has adopted amendments to its " Rules of Practice for Domestic Licensing Proceedings" in 10 C.F.R. Part 2 and to its regulations in 10 C.F.R. Part 50, " Domestic Licensing of Production and Utilization Facilities," to reflect.the enactment of temporary operating licensing authority on ,1982. The new authority amended section 192 of the Atomic Energy Act of 1954, as amended (the Act), to authorize the NRC to issue temporary operating licenses for nuclear power plants. Section 192, initially added to the Act on June 2, 1972, authorized the Atomic Energy Commission to issue temporary operating licenses for nuclear power reacters under certain prescribed circumstances. The authority under the original section 192 expired, however, on October 30, 1973. To the extent that the amended section 192 is in substance the same as the original section, the implementing regulations in the amendments to Parts 2 and 50 likewise are similar in substance to the now expired regulations which were published in 1972 to implement the section initially. The amendments to Parts 2 and 50 set ~ e 8 e --.n-.-----
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_. = _. a w = -2_ out below are designed to conform Comission regulations and procedures to the new tempor,ary op rating licensing authority. [le*.t b)c Mr defe DATE: [ Effective date is 30 days following publication in the FEDERA REGISTER.][oments on the amendments are invited from all interested persons within 30 days of publication of this notice in the FEDERAL REGISTER. Consideration will be given to such coments with a view to possible further amendments, if warranted. ADDRESS: All interested persons who desire to submit written coments or suggestions for consideration in connection with the amendments should send them to the Secretary of the Comis'sion, U.S. Nuclear Regulatory Comission, Washington, D.C. 20555, Attention: Docketing and Service Branch. Copies of coments received on the amendments may be examined in the Comission's Public Document Room at 1717 H Street, N.W., Washington, D.C. FOR FURTHER INFORMATION CONTACT: Thomas F. Dorian, Esq., Office of the Executive Legal Director, U.S. Nuclear Regulatory Comission, Washington, D.C. 20555. Telephone: (301)492-8690. SUPPLEMENTARY INFORMATION:
Background
Following the March 1979 accident at the Three Mile Island nuclear power plant, the NRC devoted principal attention to evaluating the
e _x .= 4 o/l E:j...:a l'53 accident and its implications for the safe regulation of nuclear power in Nb M this country, and to developing the necessary regulatory improvements for j;Q presently operating nuclear power plants. During this period, construc-g uh, tion continued on those nuclear power plants with construction permits, ad although only very limited NRC effort was applied to preparing and . completing the necessary safety review and hearing requirements for the ,3 issuance of operating licenses for these facilities. Largely as a result f) M of this situation, it became apparent in late 1980 that delays would be ~ ?j sn experienced between the time when construction of some of these plants
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would br sufficiently completed to allow fuel loading and the start of a 2d operation, and the time when all requirements for the issuance of an 4 operating license, including the hearing requirements of the Atomic Eergy Act, would be met. Y,h Under the Atomic Energy Act of 1954, as amended (the Act), no person l[l) may operate a nuclear power plant without first obtaining an operating 26 SRj license from the NRC. A formal on-the-record evidentiary hearing must be M $g! held - and.a decision rendered on the basis of that record - if requested @l eq by any person whose interest may be affected, before the Comission may
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issue an operating license. Before the enactment of Public Law .d:. however, the Comission lacked the authority to authorize fuel loading E~i >;j and low-power operation and testing on the basis of its safety and 3 ? environmental evaluation; it was required instead to await authorization s { in the course of the hearing process (see 10 C.F.R. 50.57(c)). M) Even with the ad'ministrative changes to the licensing process (7 M.3 figj designed to reduce the time required to complete the license process for W.p Q 9 these plants, the potential for licensing delays remained for some of the id 9 ??: d v. w
n,= ca.. As .mna r.. S. plants scheduled to be completed between 1981 and 1983. Although 'here t are uncertainties as to the precise costs of the projected licensing-delays for these plants, the estimates, even if limited only to the cost of replacement power, indicate that the cost to the utilities and to their ratepayers will be in the range of tens of millions of dollars a month for each completed plant. In order to relieve the burden of these delays, on March 18, 1981, l the Comission submitted a legislative proposal to amend the Act to authorize the Comission to issue a temporary operating license for a nuclear power plant, authorizing fuel loading and low-power operation and i testing, in advance of the conduct or completion of an on-the-record evidentiary hearing on contested issues relating to the final operating license. Public Law , is the final legislative product of the Comission's proposal. General The temporary operating licensing authority could be used in any proceeding upon an application for an operating license for a utilization facility required to be licensed under sections 103 or 104b. of the Act, in which a hearing is otherwise required under section 189a. of the Act on the final operating license for the facility. Pending final action by the Comission on the application for the final operating license for the facility, the applicant may petition the Comission for a temporary operating license for such facility authorizing fuel loading, testing and operation at a specific power level to be detennined by the Comission. The initial petition, however, would be limited to power levels not to
M..:. L. =..- 4 a I i exceed 5 percent of the nuclear facility's rated full thermal power. 4 After the temporary operating license is issued, the utility licensee may file one or more additional petitions with the Comission to allow s facility operation in staged increases in power leiel beyond the initial ( 5 percent limitation. All authorizations for temporary operating i licenses under section 192 and these implementing regulations shall be pursuant to a final order of the Comission itself. Any such action lies within the discretion of the Comission. The present authority and procedures in % 50.57(c) of the regulations (under which a presiding Atomic Safety and Licensing Board may, on motion, and after a decision based on i evidentiary record or upon agreement of the parties to the contested proceeding, authorize the issuance of a fuel load or low-power and tvrting license) remain available, however, and are not affected at all by these regulations implementing section 192 of the Act. The circumstances under which petitions may be filed and conditions under which the Comission may exercise such authority are as prescribed in section 11 of Public Law These provisions are reflected in the implementing amendments to Parts 2 and 50 set out below. In essence, these amendments establish a detailed procedural framework for consider-ing and issuing temporary operating licenses. Section 192, as amended, and its accompanying legislative history clearly contemplate that such procedures are useful and needed safeguards to govern the Commission's actions in exercising the new authority and to preserve for the public a meaningful right to participate in licensing decisions. e
_-_ m. m . New Subpart C to 10 C.F.R. Part 2 " Procedures Applicable to Proce'edings I for the Issuance of Temporary Operating Licenses for Utilization Facilities Pursuant to Section 192." l Subpart C simply adds procedural requirements to 10 C.F.R. Part 2 l which are needed to carry out the temporary operating licensing authority in section 192 of the Act and implemented in a new i 50.57(d) of 10 C.F.R. Part 50. Unlike the hearing on the final operating license, 7 the temporary operating licensing process is subject neither to the hearing requirements of section 189a. of the Act nor to the. requirements l of subparts A or G of the Rules of Practice in 10 C.F.R. Part 2. Subpart C provides all of the necessary procedural guidance regarding requests for, and Comission authorizat' ion of, temporary operating licenses. Briefly, subpart C provides: F l For the petition for a temporary operating license to be filed in the form of a written motion. The written motion, with supporting (' affidavits, shall be served on all parties to the proceeding for the issuance of the final operating license. The initial petition shall be limited to power levels not to exceed 5 percent of full themal power. Following the issuance of the temporary operating license, the licensee may file subsequent petitions with the Comission to amend the temporary operating license in staged increases at specific power levels in excess of the initial 5 percent I limitation. i The subpart provides general guidance on the contents and requirements for affidavits which may be filed in support of or in l
. w =~ + ._ w w ?. -p ! ; _* at-e _s, m, y e.- M j@ .m) Mf,d opposition to petitions for the issuance, or the amendment, of temporary . w -1 operating licenses. 44,{g The rules provide for prompt publication of notice of both d Eg,y petitions for a temporary operating license and for amending !Jch a y.';gg license with a 30-day period for public coment. They providi that the $;y' M 4t notice shall inform interested persons how they can go about obtaining NN {p~e; access to the petition and its supporting affidavits. Such access is ?mt g4ji needed so that such persons might, as the rules also provide, file M"-d responsive affidavits to the petition. The rules do not specify a time s,;n after the 30-day public comment period for Comission action on the petition. In keeping with the purpose of the temporary operating license 59.d - authority, the rules provide that the Comission will act as ~ Txpeditiously as possible on petitions for temporary operating licenses $.3N' s. and for amendments to such licenses. ... y M Issuance of a temporary operating license or amendment thereto -"jj shall be pursuant to a final order of the Comission itself which recites Ov1 WuH the reasons called for in section 192 of the Act and 5 50.57(d) of this W 7 '+J chapter. The final order of the Comission shall be subject to judicial 5 %. je l ~, j review under section 189b. of the Act. The rules restate the procedural safeguards in section 192 to 'ii assure that the issuance of the temporary operating license does not '3 prejudge the outcome of the licensing hearing for the final operating $$q license for that plant or prejudice the rights of any party to the 5 %'28;d "y hearing to raise any proper issue in that hearing and to have that issue
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decided. Moreover, the rules require, as does section 192, that any
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party tu the final operating license hearing, or any licensing board .:: ~,. . Y ;d s: 5
.x . =._ - w =s . member conducting such hearing, promptly notify the Comission of any information made available as part of that hearing that the terms and. conditions of the temporary operating license are not being met, or that they are insufficient to provide reasonable assurance that operation of the facility during the period of the temporary operating license will provide adequate protection to the public health and safety and 4.he environment. Finally, the rules state that the Comission will assert its best efforts to adopt appropriate administrative remedies to minimize the need for the issuance of temporary operating licenses. New $ 50.57(d) of 10 CFR Part 50 A new i 50.57(d) has been added to reflect the substance of the temporary operating licensing authority granted by Public Law and the special provisions which must be satisfied before the Conmission exer-cises this authority. Pursuant to section 11 of Public Law and 9 50.57(d), the following requirements are applicable to a petition for and the issuance of a temporary operating license and amendments thereto: A petition for the issuance of a temporary operating license cannot be filed with the Comission until the Advisory Comittee on Reactor Safeguards (ACRS) report, the NRC staff's initial Safety Evaluation Report and the staff's supplement to the report prepared in response to the ACRS report for the plant, the NRC staff's final environmental statement, and a State, local or utility emergency plan l have been filed. J
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l x2 J_ The initial petition for a temporary operating license is limited f.p' by section 192 to power levels not to exceed 5 percent of the facility's P i,1 bkl rated full thermal power. After the temporary operating license is Wg issued, however, the utility licensee may file petitions with the m F Comission to amend the temporary operating license to allow the facility .~ -to operate at specific power levels exceeding 5 percent of rated full ? 5 thermal power. The latter levels could be up to and include full-power gj, in those cases in which the Comission detemines that such action is Ey-necessary. In all instances, action on such petitions shall be k authorized pursuant to a final order of the Comission itself which shall [ reflect the basis for the findings required by section 192. Moreover, cj such actions lie within the sound discretion of the Comission itself. Following the issuance of a temporary operating license, subse-
- tlh f.'j quent petitions from the utility, notice and public coment periods on kf each petition, and the determinations by the NRC called for by section
$1d 192 (and implemented in this new i 50.57(d)) are required before the h.a Comission can allow operation, by amending the temporary operating ":] license, at power levels beyond the initial 5 percent low-power testing y J. level. JM Before issuing a temporary operating license or amending the f f# license to allow operation at succeeding power levels, NRC must provide NW notice of the request for such authority and a 30-day period for public f}]j coment. f Upon the expira' tion of the 30-day coment period, the Comission Wd may issue the temporary operating license, or amend the license to allow $5gj temporary operation at power levels in excess of the initial license W Eb -) .y, 5
a.x w._
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10 - iimitation, as the case may be, if the Comission itself determines'that: (1) all requirements of law other than the conduct of completion of any required hearing on the final operating license are met; (2) in accord-ance with such requirements, there is reasonable assurance that temporary operation of the facility in accordance with the terms and conditions of the license will provide adequate protection to the public health and safety and the environment; and (3) denial of the temporary operating i license will result in delay between the time when the facility is sufficiently completed, in the judgment of the Comission, to permit issuance of the temporary operating license, and the time when a final operating license for the facility would otherwise be issued. For petitions to amend the temporary operating license to permit operation at ~ power levels in excess of 5 percent of the facility's rated full thermal i power, the Comission's findings must, of courne, be directed to i operation at the increased power levels which would be authorized by the amendment. Any final Comission order authorizing the issuance of a i temporary operating license pursuant to section 192 (i.e., as L. distinguished from an order which may be issued by a presiding Atomic l Safety and Licensing Board under paragraph (c) of 5 50.57) of the Act shall recite with specificity the reasons justifying the findings required by that section and 6 50.57(d). The order must be sent upon l l issuance to the Comittees on Interior and Insular Affairs and Energy and Comerce of the House of Representatives and the Comittee of Environment and Public Works of the Senate. ~ l
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_,.= . The temporary operating license will contain such terms and conditions as the Commission may deem necessary, including the duration of the license and any provision for its extension. Section 192 provides that the authority shall expire on December 31, 1983. The Commission will suspend the temporary operating license if it finds that the applicant is not prosecuting the application for-the final operating license (and on which a hearing under section 189a. is being conducted) with due diligence. ~ Paperwork Reduction Act Statement ~ TKTs proposed rule contains no new or amended requirements for recordkeeping, reporting, plans or procedures, applications or any other type of information collection. Regulatory Flexibility Certification In accordance with the Regulatory Flexibility Act of 1980, 5 U.S.C. 605(b), the Commission certifies that this rule does not have a significant economic impact on a substantial number of small entities. This rule affects only the licensing and operation of nuclear power plants. The companies that own these plants do not fall within the scope of the definition of "small entities" set forth in the Regulatory Flexibility Act or the Small Business Size Standards set out in regulations issued by the Small Business Administration at 13 CFR Part 121. Since these companies are dominant in their service areas, this rule does not fall within the purview of the Act. Since the amendments which follow implement in the Commission's regulations.new statutory provisions in Public Law , the Commission
. u -~ ~p Y /pW foy }>hthnb f*c }his i r)<CVS*'# l *.. p* #hr} Whan g conbrnin M i q%,, g ) g1 e;,g3 pr g J Q A Hix e has found that general notice of proposed rulemaking and public partici-pation therein are unnecessary and impracticable, and that good cause. exists for making the amendments effec'ive 30 days after the date of
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l e*p Pursuant to the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and sections 552 and 553 of l g Title 5 of the United States Code, the following amendments to Title 10 Chapter 1, Code of Federal Regulations, Parts 2 and 50, are published as ~ .n l a document subject to codification, o be effective 30 days after the date lication in the Federal Registe Part 2 - Rules of Practice Part 50 - Domestic Licensing of Production Ad i ative practice and procedure Antitrust [ Byproduct material Classified information Classified information pFire prevention E Envi:onmental protection y e v e^fn} rM,u u 4 T Nuclear materials Nuc\\ car ?owerpI Ard s 4+vl rerebrs j' M Nuclear power plants and reactors Vcuy q Source material N A)'#'olt rdecbn Se crimination Rene.}o,- O ) c.rt hl4 Special nuclear material Waste treatment and disposal gLyebig re rmth PART 2--RULES OF PRACTICE FOR j DOMESTIC LICENSING PROCEEDINGS f 1.y (Authority: The provisions of Subpart C issued under $$ 161, N 192,68 Stat.948,f Stat. 42 U.S.C. 2201 and .) $sE I E Wi!2 ! %nliin$5$ mFuag: +"*"*%n-4 s Uhnl!"]! W 13ijle % 2Ng!:j: = 1ss $f35.2b=$Eiq[!l$a2 l g d f 'i
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7_, , 2. A new subpart C is added to 10 C.F.R. Part 2 to read as follows: ~ Subpart C - Procedures Applicable to Proceedings for the Issuance of Temporary Operating Licenses for Utilization Facilities Pursuant to Section 192. 5 2.300 Scope of subpart. This subpart prescribes the procedures applicable in any proceeding upon an application for an operating license for a utilization facility required to be licensed under sections 103 or 104b. of the Act, in which a hearing is otherwise required pursuant to section 189a., in which the applicant, pursuant to section 192 of the Act and i 50.57(d) of this chaptET7 petitions the Commission for a temporary operating license for such a facility authorizing fuel loading, testing, and operation at a specified p~ower level to be determined by the Conmission, pending action by the Commission on the application for the final operating license for the facility. 5 2.301 Filing of petition and accompanying affidavits. (a) Any petition filed by an applicant for a temporary operating license for each such facility shall be in the form of a written motion. The motion, including the accompanying affidavits, shall be served on all parties to the proceeding for the issuance of the final operating license. Any such petition may be filed at any time after the availa-bility of the documents called for by section 192 of the Act and i50.57(d)ofthischapter. k
rey umm: -- = ?. &{j 2.. i:$ (b) The initial petition for a temporary operating license for each ,]ii
- d such facility shall, in accordance with section 192 of the Act and, r,
j I 50.57(d) of this chapter, be limited initially to power levels not to (1 exceed 5 percent of the facility's rated full thennal power. A licensee, gg following issuance by the Comission of the temporary operating license for each such facility, may file subsequent petitions with the Comission y to amend the temporary operating license to allow facility operation in Y staged increases at specific power levels, to be determined by the n [ Comission, exceeding 5 percent of the facility's rated full thermal 4 '11 power. $,d., .t % 2.302 Contents of affidavits. $1 3 The applicant's petition for a temporary operating license shall be M9 accompanied by an affidavit or affidavits setting forth the specific 'fb d, facts upon which the petitioner relies to justify issuance of the temporary operating license or the amendment thereto. Any such affidavit .h, and any affidavit filed in response thereto shall state separately the specific facts-and arguments and include the exhibits upon which the ]j. person relies. The facts asserted in any affidavit filed shall be sworn h.f to or affirmed by persons having knowledge thereof, and a statement to y ps this effect shall affirmatively appear in the affidavit. Except under y unusual circumstances, such persons should be those who would be available to orally substantiate the facts asserted as the Comission /.d deems appropriate. Any such affidavit shall be accompanied by a list of Sk [4] documents relied on to support the facts stated in the affidavit and the pm sq B m
. place where such documents, other than those issued by the Comission's staff, are available for inspection. % 2.303 Notice of petition. The Comission will promptly publish notice of each petition for issuance of a temporary operating license and any subsequent petitions for amendments thereto in the Federal Register and in such trade or news publications as the Comission deems appropriate to give reasonable notice to persons who might have a potential interest in the grant of such a temporary operating license or amendment thereto. The notice will inform such persons of the arrangements for their access to the petition and supporting affidavits. Any person may file affidavits in support of, ' or in3 position to, the petition within 30 days after the publication of ~ such notice in the Federal Register. The Comission thereafter will act as expeditiously as possible to reach a determination on such petitions. % 2.304 Responsive affidavits. Responsive affidavits in opposition to the petition shall be accompanied by a short and concise statement of the material facts as to which it is contended that there exists a substantial issue concerning the issuance of the temporary operating license or amendment thereto. Any responsive affidavit and any accompanying statement shall be served on all parties to the proceeding for the issuance of the final operating l license. ~ e
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~ 3 S TT- $ M fj 5 2.305 Comission authorization. N1 k'l 8 (a) Issuance of a temporary operating license or amendment thereto G shall be pursuant to a final order of the Comission itself which recites the reasons for such authorization as called for in section 192 of the Act and E 50.57(d) of this chapter. (b) The requirements of section 189a. of the Act with respect to r [ the issuance or amendment of facility licenses shall not apply to the l-I)j issuance or amendment of such a temporary operating license. Thus, y-j neither subpart A nor subpart G of this part applies to the consideration 9.1 ] of a petition for the issuance or amendment of such a temporary operating M
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g (c) The final order of the ComInission with respect to the issuance a. gj of a temporary operating license shall be subject to judicial review pur-PJ jyl suant to Chapter 158 of title 28 of the United States Code, m H Si [:. 5 2.306 14 earing on the final operating license. k' (a) Issuance of a temporary operating license under section 192 of the Act and 6 50.57(d) of this chapter shall be without prejudice to the j. right of any party to a proceeding for the issuance of the final
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operating license to raise any issue in a hearing required pursuant to M J.a section 189a. of the Act. Failure to assert any ground for denial or Y2 limitation of such a temporary operating license shall not bar the k3 assertion of such ground in connection with the issuance of a subsequent final operating license. (b) Any hearing on the application for the final operating license p for a facility required pursuant to section 189a. of the Act shall be h 4, ? o
17 - concluded as promptly as practicable. The Comission shall s'uspend the temporary operating license if it finds that the applicant is not prosecuting the application for the final operating license with due diligence. 5 2.307 Notification to the Comission. (i)Anypartytoahearingrequiredpursuanttosection189a.oftheAct on the final operating license for a facility for which a temporary oper-ating license has been issued under section 192 of the Act and 5 50.57(d) of this chapter, and any member of the Atomic Safety and Licensing Board conducting such hearing, shall promptly notify the Comission of any information made available as part of such hearing that: ( (b)-97 the terms and conditions of the temporary operating license are not being met; or that {c,} M such terms and conditions are not sufficient to provide rea-sonable assurance that operation of the facility will provide adequate protection to the public health and safety and the environment during the period of the facility's temporary operation. l 9 2.308 Administrative remedies. The Comission shall assert its best efforts to adopt such adminis-trative remedies as it deems appropriate to minimize the need for the issuance of temporary operating licenses pursuant to section 192 of the Act and 9 50.57(d) of this chapter. t s 0 e I
r. 3 l I p& $4' 3 ~ N W): ll 6 l s / 4 AUTHORITY: Secs.103,104,161,182,183,186,189, 68 Stat. 936, 937, 948, 953, 954, 955, 956, as amended, sec. 234, 83 Stat.1244, as amended
- 201, (42 U.S.C. 2133, 2134, 2201, 2232, 2233, 2236, 2239, 2282); secs.
r 202, 206, 88 Stat.1242,1244,1246, as amended (42 U.S.C. 5841, 5842, 5846), unless otherwise noted. Section 50.7 also issued under Pub. L. 95-601, sec.10, 92 Stat. 2951 (42 U.S.C. 5851). Section 50.78 also issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152). Sections 50.80-50.81 also issued under sec.184, 68 Stat. 954, as amended (42 II.S.C. 2234). Sections 50.100-50.102 also issued under sec.186, 68 Stat. 955 (42 U.S.C. 2236). For the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C. 2273), 'SS 50.10(a), (b), and (c), 50.44, 50.46, 50.48, 50.54, and 50.80(a) are issued under sec.161b, 68 Stat. 948, as amended (42 U.'S.C. 2201(b)); SS .10(b) and (c) and 50.54 are issued under sec. 161i, 68 Stat. 9, as amended (42 U.S.C. 2201(i)); and SS50.55(e), 50.59(b), 50.70, 50.71, 50.72, and 50.78 are issued under sec. 1610, 68 Stat. 950, as amended (42 U.S.C. 2201(o)).Q j sec}; g go,5) ()) glgo ;sgaj v g w <39 jy},jgg I g 9,S,c, qq) 94 4, 42 U.S,C. 220 ) W_
L,.m .m.o _m ..m. A ' boo f lithe) N*h*c fo*Y &[e$ Y ff $llis iJlL i3 ~ (Qgg c,[Mm 6w m an & h,u) y ~. GH noa L vbr k ~M w & y,qo ahhn htf onc, PART 50--DOMESTIC LICENSING OF P,,RODCTIONSNDUTIIZATIONFACIL4 TIES S'Yvk) Cl& }of Eb l$ rty/R e i +nlin 10 ~h ulkn ? 3. %therity: S _ctier.- 50.57(d) also-isstred =dar $$ -41 r-19E," ar Oll.us: -5S U. 5. 0. O S,- Stat , 42 Co.C. 22G1 and wb c:M.h[Joi. Philip @ o jL n b eg-4. In s 50.57 of 10 CFR Part 50, a new paragraph (d) is added to read as follows: 5 50.57 Issuance of operating lice,nse. (d)(1) An applicant for an operating license, in a case where a hearing is require'd in a pending proceeding for the final operatini license for a facility required to be licensed under sections 103 or 104b. of the Act, may petition the Comission by a written motion, pursuant to section 192 of the Act and this paragraph (d) for a temporary operating license for such a facility authorizing fuel loading, testing, and operation at a specific power level to be determined by the Comis-sion, pending fina, action by the Comission on the application for the final operating license. (2) The initial petition for a temporary operating license for each such facility may be filed at any time after the filing of: (i) the report of the Advisory Comittee on Reactor Safeguards (ACRS) required by subsection 182b. of the Act; (ii) the initial safety evaluation report on
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a ~. - -. -.. ~ - -- --. - 19 - the application by the regulatory staff and the staff's first supplement to the report prepared in response to the ACRS report; (iii) the staff's final detailed statement on the environmental impact of the facility prepared pursuant to section 102(2)(C) of the National Environmental Policy Act of 1969; and (iv) a State, local, or utility emergency preparedness plan for the facility. (3) The initial petition for a temporary operating license for each such facility, and any temporary operating license issued for such a facility based upon the initial petition, shall be limited initially to power levels not to exceed 5 percent of the facility's rated full thermal power. (4) Following issuance by the Comission of the temporary operating liceM for each such facility, the licensee may petition the Comission to amend the license to allow facility operation in staged increases at specific power levels, to be determined by the Comission, exceeding 5 percent of the facility's rated full thermal power. (5) Petitions for the issuance of a temporary operating license, or for an amendment to such a license allowing operation at a specific power level greater than that authorized in the initial temporary operating license, shall be accompanied by an affidavit or affidavits setting forth the specific facts upon which the petitioner relies to justify issuance of the temporary operating license or the amendment thereto. (6) The Comission will publish notice of each such petition in the Federal Register and in such trade or news publications as the Comission deems appropriate to give reasonable notice to persons who might have a potential interest in the grant of such a temporary operating license or
p_ _ _ = a w =_._: = . amendment thereto. The notice will inform such persons of the arrangements for their access to the petition and supporting affidavits. Any person may file affidavits in support of, or in opposition to, the petition within 30 days after the publication of such notice in the Federal Register. (7) With respect to any such petition, the Commission may issue a temporary operating license, or subsequently amend the license to authorize temporary operation at a specific power level greater than that authorized in the initial temporary operating license, as determined by the Commission, upon finding that: (i) in all respects other than the conduct or completion of any required hearing, the requirements of l'aw are met; (ii) in accordance with such requirements, there is reasonable assurance that operation of the facility during the period of the temporary operating license in accordance with its terms and conditions will provide adequate protection to the public health and safety and the environment during the period of temporary operation; and (iii) denial of such temporary operating license will result in 5, delay between the date on which construction of the facility is sufficiently completed, in the judgment of the Comission, to permit issuance of the temporary operating license, and the date on which a final operating license for such facility would otherwise be issued under the Act. (8) Any final Commission order authorizing the issuance of any temporary operating license pursuant to section 192 of the Act and this paragraph will recite with specificity the reasons justifying the find-
. m ~ 4 'm , ings required by that section and this paragraph, and will be transmitted upon such issuance to the Committees on Interior and Insular Affairs and Energy and Commerce of the House of Representatives and the Committee on Environment and Public Works of the Senate. (9) _The temporary operating license will become effective upon issuance and will contain such terms and condit ions as the Connission may deem necessary, including the duration of the l'icense and any provision for the extension thereof. The Commission will suspend the temporary operating license if it finds that the applicant is not prosecuting the application for the final operating license with due diligence. (10) The authority under section 192 of the Act and this paragraph expires on December 31, 1983. Dated-e4 Washington, D.C., this day of , 1982. For the Nuclear Regulatory Commission, Samuel J. Chilk Secretary to the Connission 1 1 \\ .}}