ML20235V784
| ML20235V784 | |
| Person / Time | |
|---|---|
| Issue date: | 02/16/1989 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| References | |
| FRN-52FR3442, RULE-PR-2 NUDOCS 8903100332 | |
| Download: ML20235V784 (10) | |
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?R0 POSED RULE h DothE' usEC NUCLFAR REGULATORY COMMISSION 10 CFR Part ~89 FEB 21 P6 :42 l
l Issuance or Amendment or Permit of Power Following Initial DecisionReactor License [c...y J.
J AGENCY: Nuclear Regulatory Comission.
ACTION: Final rule.
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SUMMARY
- This final rule makes minor changes in the Comission's rules of practice by revising its regulation that specifies when a license, permit, or amendment can'be issued following an initial adjudicatory decision resolving
.all issues before the presiding officer in favor of authorizing the licensing action. Because of recent judicial decisions affirming the validity of the Comission's existing procedures relating to the "imediate effectiveness" of a presiding officer's decision, the Comission has decided to retain the existing rule, with one exception. The final rule, as proposed, deletes outdated language in the existing regulation emanating from Three Mile Island-related regulatory policies upon which action has now been completed. This action is necessary to clarify existing procedures.
EFFECTIVE DATE: March 27, 1989.
FOR FURTHER INFORMATION CONTACT: Paul Bollwerk, Senior Attorney, Office of thn General Counsel, U.S. Nuclear Regulatory Comission, Washington, DC 20555.
Telephone: (301) 492-1634.
I 8903100332 890216 /^
PDR PR 2 52FR3442 PDR h5' gq u P/R7765 DSJO
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i SUPPLEMENTARY INFORMATION:
On February 4, 1987, the Commission published in the Federal Register i l
l (52 FR 3442-3447) proposed amendments to its Rules of Practice (10 CFR Part 2) l that would revise its existing ru7e governing when a presiding officer's decision in favor of authorizing the issuance or amendment of a license or pemit will become " effective" so as to permit the NRC staff to take the licensing action. In addition to clarifying the existing rule regarding the
" effectiveness" of decisions on nuclear power plant construction permits and operating licenses, the proposed rule would have removed language in the rule that provided guidance to the Atomic Safety and Licensing Board and the Atomic Safety and Licensing Appeal Board on how to factor into the adjudicatory process the various regulatory changes resulting from the 1979 accident at Three Mile Island, Unit 2 (TMI-2).
In two recent United States Court of Appeals cases, one decided not long before and one decided not long after the proposed rule was published, the provisions of the Commission's existing rule relating to effectiveness reviews for reactor operating licenses was upheld against arguments thr.t it illegally allowed license issuance prior to the completion of the agency's appellate process and that it violated .the Administrative Procedure Act's (APA) procedural projections for formal adjudicatory hearings. Eddleman v. NRC, 825 F.2d 46 (4th Cir.1987); Oystershell Alliance v. NRC, -800 F.2d 1201 (D.C.
Cir. 1986) (per curiam). In Oystershell Alliance the United States Court of Appeals for the District of Columbia Circuit held that the Commission's eftet.tiveness review procedure allowing for the issuance of an operating license before the completion of the internal agency appellate process was
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lawful. 800 F.2d at 1205-07. In Eddleman, the United States Court cf Appeals for the Fourth Circuit held that this procedure could be conducted without providing the procedural rights and projections afforded by the APA for formal adjudicatory hearings. 825 F.2d at 48.
As a result of these two cases upholding its present effectiveness procedures, the Comission has decided not to revise those procedures as proposed, with one exception. That exception is the revision to remove the TMI-related portions of 9 2.764, specifically all or portions of paragraphs (e)(1)(ii), (e)(2)(ii), and (f)(1)(ii).
Of the fourteen coments on the proposed rule, only three made specific mention of this proposal to delete TM2-2 related language. Two of the coments, one filed by a nuclear utility and the other by a law firm which represents nuclear utilities, supported deletion of the provisions for the reasons stated in the Statement of Considerations supporting the proposed rule, namely that all applicable TMI-2 action items, which are embodied in NUREG-0737, " Clarification of TMI Action Plan Requirements,"1 are now covered by regulatory changes with which licensees must comply. The other comment, filed by two public interest groups, opposed deletion of these provisions on j the ground that all TMI " lessons learned" have not been incorporated adequately into the Commission's regulations.
In the Statement of Considerations supporting the proposed rule, the Commission declared that *[t]he NRC staff has advised the Commission that all 1
Copies of NUREG-0737 may be purchasad from the Superintendent of Documents, U.S. Government Printing Office, P.O. Box 37082, Washington, DC 20013-7082. Copies are also available from the National Technical Infonnation Service, 5285 Port Royal Road, Springfield, VA 22161. A (Footnote Continued) 3
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applicable NUREG-0737 action items are covered by regulatory changes and that a l license applicant's compliance with existirg regulations is a sufficient response to all applicable TMI-2 accident ' lessons learned'" (52 FR 3444).
Accompanying this statement were references to a number of specific regulatory changes that are examples of the incorporation of those action items into the NRC's rules, ld. In opposing this revision, the commenters provide only the er. supported observation that this is not so. They then go on to assert that "NUREG-0737 requirements are not given the same priority as other regulations,"
citing a dispute in the licensing proceeding for the Seabrook nuclear power station over the timing of the installation of a control room safety parameters display system (CRSPDS).
Because, as the Appeal Board noted, the NUREG-0737 CRSPDS requirement in question provided for staff discretion in establishing the timing of installation, see Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-875, 26 NRC 251, 265 & n.52 (1987), this situation hardly provides a compelling example that TMI-related requirements are not given the same priority as other regulations. Moreover, this point is essentially irrelevant to the focal issue of whether all applicable NUREG-0737 requirements have been incorporated into the agency's regulations and orders. The Commission can only reiterate that this indeed is the case and, accordingly, it has determined that these TMI-2 related provisions of 6 2.764 are no longer necessary.
Nonetheless, to ensure there is no uncertainty over the litigation of TMI-2 related issues, as was indicated in the Statement of Considerations for the (Footnote Continued) copy is available for public inspection and/or copying at the NRC Public Document Room, 2120 L Street, NW., Washington, DC.
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proposed rule, the Commission is issuing a policy statement that sets forth its updated policy on litigation of TMI-2 related issues. This policy statement is published elsewhere in this' issue of the Federal Register.
Environmental Impact: Categorical Exclusion The NRC has determined that this final rule is the type of action described in categorical exclusion 10 CFR 51.22(c)(1). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this. final regulation.
Paperwork Reduction Review This final rule contains no new or amended informaticin cullection requirements and therefore is not subject to the requirements of the Paperwork Reductiot. Act of 1980 (44 U.S.C. 3501 et seq.).
Regulatory Analysis As a result of recent judicial decisions affiming the legality cf the Commias lon's existing rule governing the "inenediate effectiveness" of initial decisions in reactor operating license proceedings, the Cammission has decided not to take further action to revise the existing rule's procedures on effectiveness reviews. However, retention of the TMI-2 related provisions of the current immediate effectiveness rule is unnecessary and would be misleading L 5 L
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to participants in NRC licensing proceedings. Those provisions are, therefore, being deleted.
1 The final rule thus constitutes the preferred alternative and the cost involved in its promulgation and application is necessary and appropriate. The foregoing discussion constitutes the regulatory analysis for the final rule.
Regulatory- Flexibility Certification In accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), the NRC certifies that this final rule does not have a significant economic frapact upon a substantial' number of small . entities. Entities seeking reactor construction permits or operating licenses that would be subject to the TMI-2 related provisions that are being deleted from the existing immediate effectiveness rule would not fall within the definiticn of small businesses found in section 34 of the Small Business Act,15 U.S.C. 632, the Small Business Act Size Standards set out in regulations issued by the Small Business Administration at 13 CFR Part 121, or the NRC's size standards published December 9, 1985 (50 FR 50241). Further, interveners who probably would fall within the pertinent Small Business Act definition will not encounter a significant economic impact from the final rule. The previous incorporation in NRC regulations and orders of all applicable TMI action items and the forthcoming publication of a Commission policy statement on litigation of 1NI-related issues are effective substitutes for the existing TMI-2 related provisions of the immediate effective rule being deleted by this final rule.
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Backfit Analysis This final rule does not modify or add to systems, structure, components, or design of a facility; the design approval or manufacturing license for a nuclear reactor facility; or the procedures or organization required to design, construct, or operate a facility. Accordingly, no backfit analysis pursuant to 10 CFR 50.109(c) is required for this final rule.
List of Subject in 10 CFR Part 2 e
Part 2 - Administrative practice and procedure, Antitrust, Byproduct material, Classified information, Environmental protection, Nuclear materials, Nuclear power plants and reactors, Penalty, Sex discrimination, Source material Special nuclear material, Waste treatment and disposal.
For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and 5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR Part 2:
PART 2 -- RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS
- 1. The authority citation for Part 2 continues to read as follows:
AUTHORITY: Secs. 161, 181, 68 Stat. 948, 953, as amended (42 U.S.C.
2201, 2231); sec. 191, as amended, Pub. L.87-615, 76 Stat. 409 (42 U.S.C.
2241); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); 5 U.S.C. 552.
Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104, 105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, as amended (42 U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 2135); sec. 102, Pub. L.91-190, 83 Stat.
853, as amended (42 U.S.C. 4332); sec. 301, 88 Stat. 1248 (42 U.S.C.
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5871). Sections 2.102, 2.103, 2.104, 2.105, 2.721 also issued unaer secs. 102, 103, 104, 105, 183, 189, 68 Stat. 936, 937, 938, 954, 955, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2233, 2239). Section 2.105 also issued under Pub. L.97-415, 96 Stat. 2073 (42 U.S.C. 2239).
Sections 2.200-2.206 also issued under secs. 186, 234, 68 Stat. 955, 83 Stat. 444, as amended (42 U.S.C. 2236, 2282); sec. 206, CS Stat.1246 (42 U.S.C. 5846). Sections 2.600-2.606 also issued under sec.102, Pub. L.91-190, 83 Stat. 853, as amended (42 U.S.C 4332). Sections 2.700a, 2.719 also issued under 5 U.S.C. 554. Sections 2.754, 2.760, 2.770, 2.780 also issued under 5 U.S.C. 557. Section 2.764 and Table 1A of Appendix C also issued under secs. 135, 141, Pub. L.97-425, 96 Stat.
2232, 2241 (42 U.S.C. 10155, 10161). Section 2.790 also issued under sec. 103, 68 Stat. 936, as amended (42 U.S.C. 2133) and 5 U.S.C. 552. Sections 2.800 and 2.808 also issued under 5 U.S.C. 553. Section 2.809 also issued under 5 U.S.C. 553 ano sec. 29, Pub. L.85-256, 71 Stat. 579, as amended (42 U.S.C. 2039). Subpart K also issued under sec.189, 68 Stat. 955 (42 U.S.C. 2239); sec. 134, Pub. L.97-425, 96 Stat. 2230 (42 U.S.C.
10154). Subpart L also issued under sec.189, 68 Stat. 955 (42 U.S.C.
2239). Appendix A also issued under sec. 6, Pub. L.91-560, 8A Stat. 1473 (42 U.S.C. 2135). Appendix B also issued under sec. 10, Pub. L.99-240, 99 Stat. 1842 (42 U.S.C. 2021b et seq.).
- 2. In 5 2.764, paragraphs (e)(1), (e)(2)(iii), and (f)(1) are revised to read as follows:
9 2.764 Immediate effectiveness of initial decision directing issuance or ame.!dment of construction permit or operating license.
(e) * * *
(1) Atomic Safety and Licensing Boards. Atomic Safety and Licensing Boards shall hear and decide all issues that come before them, indicating in their decisions the type of licensing action, if any, which their decision would authorize. The Boards' decisions concerning construction permits shall 8
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not become effective until the Appeal Board and Consission actions outlined in paragraphs (e)(2) ano (e)(3) of this section have taken place.
(2) * * *
(ii) In deciding these stay questions, the Appeal Board shall employ the i procedures set out in 10 CFR 2.788. In addition to deciding the stay issue, the Appeal Board shall inform the Comission if it believes that the case raises issues on which prompt Comission policy guidance, particularly guidance on possible changes in present Comission regulations and policies, would advance the Board's appellate review. If the Appeal Board is unable to issue a decision within the sixty-day period, it should explain the cause of the delay to the Comission. The Comission shall thereupon either allow the Appeal Board the additional time necessary to complete its task or take other appropriate action, including taking the matter over itself. The running of the sixty-day period may not operate to make the Licensing Board decision effective. Unless otherwise ordered by the Comission, the Appeal Board shall conduct its normal appellate review of the Licensing Board decision after it has issued its decision on any stay request.
(f) * * *
(1) Atca.ic Safety and Licensing Boards. Atomic Safety and Licensing Boards chall hear and decide all issues that come before them, inoicating in 9
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their decisions the type of licensing action, if any, which their decision would authorize. A Boara's decision 6uthorizing issuance of an operating license may not become effective insofar as it authorizes operating at greater than 5 percent of rated power until the Comission actions outlined below in paragraph (f)(2)ofthissectionhavetakenplace. Insofar as it authorizes operation up to 5 percent, the decision is effective and the Director shall issue the appropriate license in accordance with paragraph (b) of this section.
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- L Dated at Reckville, MD, this b day of :0J hW 1989.
f F r the Nucl tr Regulatory Comission.
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jSamuel J. Chi lk e.
J__(
' Secretary of the Comission.
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