ML20246B468

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Forwards Regulatory History AD17-1.Encl Filed in Central Files
ML20246B468
Person / Time
Issue date: 08/14/1989
From: Smith K
NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:
NRC OFFICE OF INFORMATION RESOURCES MANAGEMENT (IRM)
Shared Package
ML19317B997 List:
References
FRN-54FR17961, RULE-PR-2 AD17-1-01, AD17-1-1, NUDOCS 8908230366
Download: ML20246B468 (1)
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SV[$ k MQf NUCLEAR REGULATORY COMMISSION '89 F4 21 50:35

'10 CFR Part 2 7 P'N: 3150-AD17 Informal hearing Procedures for Nuclear Reactor Operator Licensing Adjudications AGENCY: Nuclear Regulatory Comission.

, ACTION: Proposed rule. I

SUMMARY

The Nuclear Regulatory Comission (NRC) is proposing an amendment of its regulations to provide rules of procedure for the conduct of informal adjudicatory hearings in nuclear reactor operator licensing proceedings. The Atomic Energy Act of 1954 requires that the NRC, in any proceeding for the granting, suspending, revoking, or amending of an NRC license, including licensing as an operator or senior operator at a nuclear reactor, afford an interested person, upon request, a " hearing." This proposed rule would incluoe reactor operator licensing proceedings under the infomal hearing procedures already established for materials licensing proceedings.

DATES: Coment period expires June 26, 1989.

Coments received after this date will be considered if it is practicable to do so, but assurance of consideration can be given only for coments filed on or before that date.

ADDRESSES: Submit written comments to: Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555, ATTN: Docketing and Service Branch. Hand deliver comments to Docketing and Service Branch, One White flint N rth,11555 Rockville Pike, Rockville, MD between 8:15 am and 5:00 pm.  !

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Examine comments received at: The NRC Public Document Room, 2120 L Street NW., Washington, DC.

FOR FURTHER INFORMATION CONTACT: Karla Smith or Paul Bollwerk, Attorneys, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555, Telephone (301) 492-1600.

SUPPLEMENTARY INFORMATION: Section 189a of the Atomic Energy Act of 1954 (AEA)

(42 U.S.C. 2239(a)) provides that in any proceeding for the granting, suspending, revoking, or amending of any license, the NRC shall grant a hearing upon the request of any person whose interest may be affected by the proceeding. Among the licenses issued by the NRC are those for operators and senior operators of nuclear reactors (AEA section 107, 42 U.S.C. 2137; 10 CFR Part55).

The Commission's rules of practice generally provide for two types of hearing procedures for licensing proceedings -- formal and informal. Under 10 CFR Part 2, Subpart G, those requesting a hearing with respect to a reactor licensing action or any agency enforcement activity affecting a license generally are provided a formal, trial-type hearing conducted in accordance with the provisions of the Administrative Procedure Act 5 U.S.C. 554-557 and 10 CFR Part 2, Subpart G. On the other hand, a request for a hearing regarding an NRC materials licensing action generally entitles an interested person to an informal, legislative-type hearing in accordance with 10 CFR Part 2, Subpart L.

NRC regulations presently do not specify the type of hearir.g to be afforded in the event that an interested person, including an applicant for a '

reactor operator license or a licensee, requests a hearing with regard to agency action concerning a reactor operator license. Previously, the, Commission has declared in individual orders responding to operator hearing 2

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[7590-01]

requests that an applicant for. an operator license whose application is denied is entitled only to an informal hearing in accordance with' procedures like those now embodied in Subpart L. E.g., David W. Held (Senior Operator License.

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'for Beaver Valley Nuclear Power Station, Unit 1), Docket No.- 55-60402 (Comm.

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Aug 7, 1987). In the wake of NRC's recent adoption of Subpart L (54 FR 8696), the Commission has decided that-the Commission's rules should reflect the practice followed in the individual orders. .Accordingly, the Commission.

proposes to amend.Subpart L to include within its scope proceedings for the

. grant, renewal, or. licensee-initiated amendment of a reactor operator's

. license. The proposed rule also specifies that any reactor operator licensing proceeding that was initiated by a notice of hearing issued under 6 2.104, a notice of proposed action under 5 2.105, or a request for hearing under Subpart B of 10 CFR Part 2 on an order to show cause..an order for modification of license, or a civil-penalty'is to be conducted in accordance with the procedures for formal hearings set forth in Subpart G of 10 CFR Part 2.

Environmental Impact: Categorical Exclusion The NRC has determined that this proposed 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 l

prepared for this proposed rule.

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[7590-01]

Paperwork Reduction Review This proposed rule contains no information collection requirements and therefore is not' subject to the requirements of the Paperwork Reduction Act of 1980 (44 ll.S.C. 3501 et seq.).

Regulatory Analysis The Atomic Energy Act affords interested persons the right to a hearing regarding a reactor, operator licensing proceeding. As the Conrnission previously indicated in its oecision in Kerr-McGee Corp. (West Chicago Rare Earths Facility), CLI-82-2,15 NRC 232, 241 (1982), aff'd sub com., City of West Chicago v. NRC, 701 F.2d 632 (7th Cir.1983), the use of informal' procedures generally involves less ccst and delay for the parties and the Commission than the use of formal, trial-type procedures, the principal other procedural . alternative. Also, procedures must be in place to allow for the orderly conduct of those adjudications. Codifying the informal hearing procedures for operator licensing proceedings is preferable to the present practice of establishing the procedures to be followed on a case-by-case basis.

By codifying the procedures, the Commission will avoid the expenditure of time and resources necessary to prepare the individual orders that previously have been used to designate those procedures. This proposed rule is the preferred alternative and the cost entailed in its promulgation and application is necessary and appropriate. The foregoing discussion constitutes the regulatory '

analysis for this proposed rule.

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Regulatory Flexibility Certification As required by the Regulatcry Flexibility Act, 5 U.S.C. 605(b), the NRC hereby certifies that this rule, if promulgated, will not have a significant economic impact upon a substantial number of small entities. Many operator i

license applicants or operator licensees fall within the definition of-small businesses.found in section 34 of the Small Business Act,15 U.S.C. 632, or the-Small Business 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 50.?41). While the proposed rule would reduce the litigation cost burden upon applicants or licensees because of the informal nature of the hearing, the requirement that they submit filings and documentary information detailing contested legal and factual issues is still required.

Some' cost reduction in comparison to the cost of participating in a formal adjudicatory hearing can be anticipated, although it is problematic whether that reduction as a whole will be significant. Certainly, the use of informal procedures will not increase significantly the burden upon applicants or licensees to engage in hearings.

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,' Backfit Analysis-The NRC has determined that the backfit rule,10 CFR 50.109, does not apply,to this proposed rule and, therefore, that a backfit analysis is not required for this proposed rule, because these amendments do not involve any provisions which would impose backfits as defined in 10 CFR 50.109(a)(1).  ;

List of Subjects in 10 CFR Part 2 Administrative practice end procedure, Antitrust, Byprocuct 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 Er.ergy 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:

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i 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, r

' 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. 653, as amended (42 U.S.C. 4332); sec. 301, 88-Stat. 1248 (42 U.S.C. 5871). Sections 2.102, 2.103, ?.,104, 2.105, 2.721 also issued under 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, 88 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 IA of Appendix C also issued under secs. 135, 141, Pub. L. 97 a25, 96 Stat.

2232, 2241 (42 U.S.C. 10155, 10161). Section 2.790 also issued under sec.103, 68 Stat. 936, as amen 6ed (42 U.S.C.' 2133) and 5 U.S.C. 552..

Sections 2.800 ar.d 2.808 also issued under 5 U.S.C. 553. Section

.2.809 also issued under 5 U.S.C. 553 and 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). . Subpar: 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, 84 Stat.1473 (42 P.S.C. 2135).

Appendix B also issued under sec.10. Pub. L.99-240, 99 Stat.1842 (42U.S.C.2021betseq.).

2. The heading of Subpart L of Part 2 is revised to read as follows:

Subpart L - Informal Hearing Procedures for Adjudications in Materials and Operator Licensing Proceedings 7

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[7590-01]

3. Section 2.1201 is revised to read as follows:

E 2.1201 Scope of subpart.

(a) The general rules of this subpart govern procedure in any adjudication. initiated by a request for a hearing in a proceeding for. --

'(1) The grant, transfer, renewal, or licensee-initiated amendment of a materi41s license subject to Parts 30, 32 through 35, 39, 40, or'70 of this chapter; or (2) The grant, renewal, or licensee-initiated amendment of an operator or senior operator license subject to Part 55.

. (b) ' Any adjudication regarding a materials license subject to Parts 30, 32 through 35, 39, 40, or 70, or an operator or senior operator license subject' to Part 55 that is initiated by a notice of hearing issued under 5 2.104, a notice of proposed action under 6 2.105, or a request for hearing under Subpart B of 10 CFR Part 2 on an order to show cause, an order for modification of license, or a civil penalty, is to be conducted in accordance with the procedures set forth in Subpart G to 10 CFR Part 2.

Dated at Rockville, MD, this % day of L , 1989.

For the Nuclear Regulatory Commission.

[

j d u tom Samuel hilk, Secretary of he Commission.

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  • COMMISSION (AEA section 107,42 U.S.C. 2137; 10 CFR emironmental assessment has been

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Part E5). prepared for this proposed rule.

M CFR Paru e ra de r [t of perwork Reduction Rehw RIN 3150-AD17 earing procedures for licensing .

This proposed rule contains no proceedings 4crmal and informat infonation collection requirements and informalHearing Procedures for - . Under 10 CFR Part 2. Subpart G, those therefore is not subject to the Nuclear Reactor Operator Ucensin9 requesting a hearing with respect to a Adjudications requirements of the Paperwork reactor licensing action or any agency Reduction Act of 1980 (44 U.S.C. 3501 et AoENCY: Nuclear Regulatory enforcement activity affecting a license seq.).

Commission, generally are pmvided a formal, trial- -

Action: Proposed rule. type hearing conducted in accordance Regulatog Analysis with the provisions of the The Atomic Energy Act affords

SUMMARY

The Nuclear Regulatory Administrative Pmeedure Act. 5 U.S.C. Interested persons the right to a hearing Commission (NRC)is proposing an 554-557 and to CFR Part 2 Subpart G. regarding a reactor operator licensing cmendment of its regulations to pmvide On the other hand, a request for a pmceeding. As the Commission rules of procedure for the conduct of hearing regarding an NRC materials previously indicated in its decision in informal adjudicatory hearings in licensing action generally entitles an ' Kerr-McGee Corp. (West Chicago Rare nuclear reactor operator licensing interested person to an informal, Earths Facility). CLI-EZ-2,15 NRC 232, proceedings. Tin Atomic Energy Act of legislative-type hearing in accordance 241 (1982), affd sub nom., City of West 1954 requires that the NRC,in any with 10 CFR part 2, Subpart L Chicago v. NRC. 701 F.2d 632 (7th Cir.

proceeding for the granting, suspending, NRC regulations presently do not 1983), the use ofinformal procedu es revoking, or amending of an NRC specify the type of hearing to be generally involves less cost and delay license, including licensing as an afforded in the event that an interested for the parties and the Commission than cperator or senior operator at a nuclear person, including an applicant for a the use of formal, trial-type procedures.

> retetor, afford an interested person, reactor operator license or a licensee, the principal other procedu al upon request, a " hearing " This requests a hearing with regard to agency alternative. Also, procedures must be in proposed rule would include reactor action concerning a reactor operator place to allow for the orderly conduct of operator licensing proceedings under the license. Previously, the Commission has those adjudications. Codifying the informal hearing procedures already declared in individual orders responding informal hearing procedures for operator established for materials licensing to operator hearing requests that an licensing proceedings is preferable to procedings. applicant for an operator license whose the present practice of establisidng the DATE: Comment period expires june 20, application is denied is entitled only to procedures to be followed on a case.by-1989. an informal hearing in accordance with case basis. By codifying the procedures.

Comments received after this date pmcedures like those now embodied in the Commission will avoid the will be considered if it is practicable to Subpart L E.g., David W. Held (Senior expenditure of time and resources do so, but assurance of consideration Operator License for Beaver Valley necessary to prepare the individual can be given only for comments filed on Nuclear Power Station, Unit 1), Docket orders that previously have been used to cr before that date. No. 55-00402 (Comm. Aug. 7,1987). In designate those p ocedures.This AooREssEs: Submit written comments the wake of NRC's recent adoption of proposed rule is the preferred d Subpart L (54 FR 6690), the Commission alternative and the cost entailed in its m sio ngt n 20555 has decided that the Commission's rules promulgation and application is A*ITN: Docketing and Service Branc'h. should reflect the practice followed in necessary and appropriate. The H:nd deliver comments to Docketing the individual orders. Accordingly, the foregoing discussion constitutes the cnd Service Branch. One White Flint Connission proposes to amend Subpart regulatory anlaysis for this proposed North.11555 Rockville Pike, Rockville, L to include within its scope proceedings rule.

MD, between 815 a.m. and 5 00 p.m. egulato@emy Mwah t tefa en of actor Examined comments received at:The NRC Public Document Room,2120 L erstor As required by the Regulatory ofso spec's

, license.

ifies that The operator any reactor proposed Flexibility rule Act,5 U.S.C. 005(b), the NRC Street NW,, Washington, DC.

licensing proceeding that was initiated bereby certifies that this rule,if FOR FURTHER INFORMATION CObrTACT: by a notice of hearing issued under promulgated, will not have a significant K rla Smith or Paul Bollwerk. Attorneys, i 2.104, a notice of proposed action economic impact upon a substantial Office of the General Counsel, U.S.

under i 2.105, or a request for hearing number of small entities. Many operator Nuclear Regulatory Commission, under Subpart B of10 CPR Part 2 on an license applicants or operator licensees W:shington, DC 20555 Telephone (301) order to show cause, an order for 492-1600.

fall within the definition of small modifica tion of license, or a civil penalty businesses found in section 34 of the SUPPLEMENTARY INFORMATIO9C Section is to be conducted in accordance with Small Business Act,15 U.S.C. 632, or the 189a of ths Atomic Energy Act of1954 the procedures for formal hearings set Small Business Size Standards set out in (AEA) (42 U.S.C. 2239{a)) provides that forth in Subpart G of 10 CFR Part 2. regulations issued by the Small Business in cny proceeding for the granting, Administration at 13 CFR Part 121, or suspending, revoking, or amending of EnvironmentalImpact: Categorical E*CI"8I88 the NRC's size standards published cny license, the NRC shall grant a December 9,1985 (50 TR 50241). While bzring upon the request of any person The NRC has determined that this the proposed rule would reduce th9 whose interest may be affected by the proposed rule is the type of action litigation cost burden upon applicants or proceeding. Among the licenses issued described in categorical exclusion 10 licensees because of the informal nature by the NRC are those for operators and CFR 51.22(c)(1). Therefore, neither an of the hearing, the requirement that they senior operators of nuclear reactors er vironmental impact statement nor an submit f1!ings and documentary j

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<. 1790 . Federal Register / V 1. 54, No. 79 / Wednesday April 28, 1989 f Proposed Rules f

information detailing contestad legal _ ander 5 UAC as7. Section L764 and Table 10 CFR Part te and factual issues is still regsdred. Some 1A of Appendix C also tanned under secs, cost reduction in comparison to the cost 135,14L Pub. L 9745, se Stat. 2232,2:41 (42 .(Docket No. PRas-50-48]

of participating ta a lorssal adjudicatory USC 10155,1eter). Section L7s0 slao issued g g gg ho ring can be anticipated, although it is under sec. tes, se Stat. sse, as amended (42 g problematic whether that reduction as a USC 2 as)and sESC 551 Sections 2m l whole will be signincant. Certainly, the and Lees alsoissued under 5 U.8C 553. AoENcn Nuclear Regulatory use ofinformal procedures wi!!not Sachen Laos also issued under 8 U.SC 883 Commission.

increase significantly the burden upon and ser as. Pub L to-ass. 71 Stat. s?s. as acy,osc Denial of petition for amended (42 U.SC sose). Subpart K also rulemaking.

applicants orlicensees to engage in g'"# isoned under sec.18s. Os Stat 966 (42 UAC 22301: esc. SM, Pub. L sW425, se Stat. 2230 SUMMAnn The Nuclear Regulator 3 Backfit Analysis (42 UAC 201M1. Subpart L also loosed under Commission (NRC)is denying a p+

sec.tes,es Stat.ess let UAC 22ss), for rulemaking (PRM-5S-48) filed I The NRC has determined that the Appendix A also issued under sec. 8 Pub. L backfit mie,10 Cilt 50.109, does not Williarn F. Reilly, Manager, Reaett 91-400, se Stat. ins (42 USA 21:51 Upgrade Project, and endorsed b3 cpply to this pro osed rule and. Appendix B also issued under sec.10. Pub. L Don M. Alger. Associate Director I s not

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,p,gp ,9d ,e 96-24 , se Stat. ss42 (42 UAC so21b et seq.). ' Research Reactor Facility of Unh these amendments do not involve any 2.%e heading of Subpart L of Part 2 of Missourt.The petition is being au 1 s provisions which would impose backfits is revised to read as follows:

- g ,g es defined in to CFR 50.1')9(a)(th heal.h and safety in licensing tes.

Subpart L-Iriformat Hearing i IJet of Subjects in is CFR Part E Procedures for Adjudicationsin reactors and testing facilities:(2) proposed amendments would no' Administrative practice and Materials and Operator Ucensing procedure. Antitrust, Byproduct Proceedings . l"fa t , and (3 meterial, Classified information. m d fo e

- Environmentalprotection Nuclear ' 3. Section 2.1201 is revised to read as clanfications proposedis not ott f0IIDW8: demonstrated by the documenta.

m:terials, Nuclear power plants and provided by the petitioner. The p.

reactors Penalty.Sexdiscriminstfon, iLtact scope of a@ert, requested that NRC amend its re, Souwe insterial. Special nuclear (e)ne generalrules of this subpart to add a new definition for the te material, Weste treatment and disposal. ,resear For the reasons set out in the govern procedure in any adjudication terms ,testing ch reactor

  • and redefine t preamble and under the authority of the initiated by a request for a hearing in a facility and,,'teste Atomic Energy Act of1954, as amended, proceeding for --

the Energy fac ! a ap w le el e niration Act of1974 (1)The grant, transfer, renewal, or petitioner stated that the current cs tmendeel, an 5 U.S.C. 552 and 553 licensee-initiated amendment of a deEnition of testing facility" rest the NRC is adopting the following materials license subject to Part 30,32 excessive and unnecessary regula anendments M to CFR Part 2: through 25,30,40, or 70 of this chapter,' requirements being applied to res M reactwa which are contrary 2 PART 2-4 TULES OF PRACTICE PCWI (2) The grant, renewal, orlicensee- Congressionalintent in the Atomi DOMESTIC LICENSING PROCEEDINGS initiated amendment of an operator or Energy Act of1954.

1.The authority citation for Part 2 seni# Operator license subject to Part ApoREss:Copics of the petition f.

continues to read as follows: 55. sulemaking, the public comments (b) Any adjudication regarding a received, and the NRC's letter to 1 Authority: Secs.1e1,181 es Stat. 9ss. 9:3,

.c e c mended (42 U.SC 2201,2231); sec.191, as materials license subjectd to Parts 30. 32 Petitioner are available for public onended. Pub. L 87-015,76 Stat. 409 (42 through 35,39,40, or 70 or an operator in8pection or copying in the NRC I UAC 2241); sec. 201 se Stat.1242, as or senior operator license subject to Part Document Room at 2120 L Street *

' cmended (42 USC bett):8 U.Sn $52. 55 that is initiated by a notice of hearing Washingen. DC.

Section L101 also issued under seca. 53. 62 FOR FURTHER INFORMaTION CONT

82. si, toa,104, sos. es Stat. 930. e32,9 3. cas.' issued under i 2.104, a notice of PFDPosed action under i 2.105, or a Mark L. Au Office of Nucleer eso, ear,esa, me amended (42 UAC 20 3, uclea.'

20012003. 2111, 2133, 2134. 2135); sac. to2, request for hearing under Subpart B of Regulatory Research. U.S. N, ashing,;

Pub. L es-wo, as Stat. ass. se amended (42 Regulatory Commission. M to CFR Part 2 on an order to show UAC 4332); sec. 301 as Stat.1248 [42 UAC cause, an mder for modification of DC 20555. Telephone (301] 492-374 Ba71). Sections 2.102,1103.1104.120s,1721 SUPPLEMENTARY INFORMATION:

cleo issued under secs.102,103.104,105.183 license, or a cfvil penalty,is to be conducted in accordance with the L The Petition 180,68 Stot. 936, 937, s38, 354. 956, as

c. mended (42 UAC 21312133. 2134,2135, pracedures set forth in Subpart G to 10 H.BasMor Rest III.Public comments on the Petition 2:33,2:39). Section 2.105 also issued under . CPR Part 2. IV. Analysis of Public Comments Pub. L 97-415. se Stat. 2073 (42 USC 2239). Deted at Rockvina,lilD.this 20th dey of V. Reasons for Denial Sections 2.300-1200 also tenued under secs. 186,234. 88 Stat. 955,83 Stat. 444, as amende3 April,1988. . The Petition (42 USC 221s. 22a2); sec. sos, as Stat.124s For the Nuclear Regulatory Commission. - In a letier dated November 19,2!

142 USC sees).Sectens teoo-ame also SamuelL Chuk, issued under sec.102 Pub. L 91-190, as Stet. Dr. Don M. Al 88r* Associate Direct 853, as amended (42 USC 4332). Sections Secidey @e Codass.an. Resarch Reactor Facility, Universit 2.700s 1719 also issued under 6 US.C 554. (FR Doc. 80-10(y)4 FileJ 4-2989 It4s aml Missouri, filed with NRC a petition .

Sections 2.754.1780. 2.770,1.780 also issued ==ima caos renewet.as rulemaking (PRM-50-48). The, petit:

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% p) rpl@l)MAY 23 1989 F.G." CHIEF" DAVIS ST.LUCIE NUCLEAR 19 WN 30 N1:44 FLA.PWR& LIGHT TO.US NUCLEAR REGULATORY COMMISSION DULr. [,

GENTLEMEN OMIS IS IN REPLY TO YOUR PROPOSED CHANGE TO 10 CFR PART 2 OF APLEL 26 1989 TO DO AWAY WITH MY RIGHT TO A FORMAL HEARING IF FOR ANY REASON YOU OR YOUR SUBORDINATES DECIDE TO REMOVE MY SRO LICENSE REGARDLESS OF THE REASON. GENTLEMEN THIS VIOLATES MY CONSTITUTIONAL RIGHTS OF BEING INNOCENT UNTIL PROVEN GUILTY BY JURY OR NON JURY TRIAL.

I HAVE BEEN DEALING WITH REPRESENTATIVES OF THE NRC FOR MORE THAN 15 YEARS NOW AND IT IS A SAD THING TO SAY BUT LESS THAN 10%

HAVE ANY EXPERIENCE AT ALL IN THE CONSTRUCTION , OPERATION,OR MAINTENANCE OF COMMERCIAL NUCLEAR REACTORS. BUT THESE ARE THE PEOPLE THAT MAKE THE RULES THAT I MUST CONFORM TO OR LOOSE MY JOB OR MY COMPANY MUST SHUT DOWN THEIR REACTORS;OR EXPEND MILLIONS OF DOLLARS TO SATISFY ONE OF THEIR WHIMS. CASE IN FACT; ALL THE COMMISSIONERS HAD GIVEN MY COMPANY A LICENSE TO TAKE OUR UNIT 2 CRITICAL BUT BECAUSE THE REGION 2 BOSS AT THE TIME HAD A PERSONAL VENDETTA WITH OUR UPPER MANAGEMENT HE TOLD US (WITH TWO COMMISSIONERS PRESENT) THAT WE COULD NOT TAKE OUR UNIT CRITICAL UNTIL WE ACCOMPLISHED ALL HIS PERSONAL WHIMS AND NEITHER COMMISSIONER SAID A THING.

I SPENT THE BEST YEARS OF MY LIFE DEFENDING THE CONSTITUTION OF THE UNITED STATES WHERE EVER AND WHEN EVER MY COUNTRY NEEDED IT. SINCE I HAVE RETIRED, I HAVE WATCHED THE FEDERAL, STATE, COUNTY,OR THEIR APPOINTEE'S SLOWLY CHOP AWAY MY CON-STITUTIONIAL RIGHTS. NOW IN THIS PROPOSAL YOU ARE TRYING TO CHOP OFF ANOTHER BIG HUNK; NO TRIALf I AM GUILTY NO MATTER WHAT WHIM IT MAY BE OR WHO'S WHIM IT MAY BE.

IF YOU ARE GOING TO MAKE A NEW RULE, AT LEAST GIVE ME OR LEAVE ME MY RIGHTS.I AM SORRY IF I HAVE STEPPED ON A FEW TOES WITH THIS REPLY; BUT I HAVE BEEN BUILDING, OPERATING,OR MAINTAINING NAVY OR COMMERCIAL REACTORS SINCE 1958, AND I MUST HAVE LEARNED A LITTLE IN ALL THOSE YEARS. I HAVE WITNESSED MANY CHANGES OVER THIS PERIOD OF TIME AND I WISH THAT I COULD SAY THAT MOST WERE FOR THE BEST. IN ALL HONESTY, I CANNOT SAY THAT MORE THAN 30% WHERE FOR THE BEST; THE REST WHERE NOT NECESSARY OR MADE THE OPERATION OF NUCLEAR PLANTS MORE ON THE UNSAFE SIDE RATHER THAN ON THE SAFE SIDE. THE ONLY THING THAT I CAN CONTRIBUTE THIS TO IS THAT THE PEOPLE THAT WERE RESPONSIBLE FOR THE CHANGES DID NOT HAVE OVER ALL EXPERIENCE OR KNOWLEDGE OF THE CONSTRUCTION, OPERATION,OR MAINTENANCE (SUCH AS INTERRELATION OR INTERACTIONS OF SYSTEMS) OF NUCLEAR REACTORS AND THEIR SUPPORT SYSTEMS. WE DO NOT OPERATE THESE BIG MOMMA'S IN A LABORATORY; WE OPERATE THEM IN THE REAL WORLD WHICH IS A DIFFERENT BALL GAME ALL TOGETHER.

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m- l F.G." CHIEF" DAVIS )

NUCLEAR PLANT SUPERVISOR ST. LUCIE PLANT i

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(ats) sao-sooo June 23, 1989 Mr. Samuel J. Chi'lk S2cretary'of the Commission .

U.S. Nuclear Regulatory Commission

  • Attn: Docketing and Service Branch

< Washington, DC 20555

SUBJECT:

- Comments Concerning the Nuclear Regulatory Commission Proposed Rule Regarding Informal Hearing Procedures for Nuclear Reactor Operator Licensing Adjudications, 10 CFR 2 (54 FR 17961)

Dear Mr. Chilk:

This letter is being submitted in response to the Nuclear Rsgulatory Commipsion's (NRC's) request for comments regarding the Proposed Rule 10 CPR 2, " Informal Hearing Procedures for Nuclear R xctor Operator Licensing Adjudications," published in the Federal Register (54 FR 17961, dated April 26, 1989).

The Philadelphia Electric Company-(PECo) appreciates the opportunity.to comment on this proposed rule. PECo endorses this effort and supports promulgation as a final rule since less formal hearing procedures could 1) be more cost effective, 2) provide for -

f standardization and consistency, and 3) result in a more extensive cxchange of information between interested parties.

l 1

If you have any questions, please do not hesitate to contact us.

Ver: ty ly your g b' ,

E. P. Fogar y Manager Nuclear Support Division 9

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June 26, 1989 Mr. Samuel J. Chilk.

Secretary of the Commission U. S. Nuclear Regulatory Commission Washington, D.C. 20555 Re: Notice of Proposed Rulemaking Informal Hearing Procedures for Nuclear Reactor operator Licensing Adjudications 54 Fed. Reg. 17.961 (Aeril 26, 1989)

Dear Mr. Chilkt In accordance with the above-referenced Notice, Bishop, Cook, Purcell & Reynolds hereby submits the following comments on behalf of Northeast Utilitiest Rochester Gas & Electrict TU Electric; Southern California Edison conpany; and System Energy Resources, Inc. We appreciate the' opportunity to express our views to the NRC on its proposed regulation to govern the conduct of hearings on nuclear power plant operator licenses issued under 10 C.F.R. Part 55. The regulation would amend 10 C.F.R. Part 2 (rules of practice for domestic licensing proceedings) to provide for informal adjudications on the issuance, amendment, renewal, or transfer of Part 55 licenses.

We generally favor any NRC initiative intended to streamline the regulatory process.

However, we also believe that an opportunity for a formal adjudication, for good cause, on a Part 55 license is a necessary measure We to ensure believe, that the therefore, license that the is fairly. issued and renewed.

regulation should explicitly preserve that oppor,tunity upon a demonstration of good cause.

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Materials Licenses Versus Oeerator Licenaes "This proposed rule would include reactor operator licensing proceedings under the informal hearing procedures already 54 Fed. Reg.

established for matierials licensing proceedings."

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Mr. SCmuO1 J. Chilk SGeratory of tho Commiasion June 26, 1989-Page 2 at 17,961. It would apply 10 C.F.R. Part 2, Subpart L (informal hearing procedures for adjudications in materials licensing proceedings) to hearings on Part 55 licenses;1/ consequently, no formal adjudications under Subpart G (rules of general applicability) would be available.

As a legal matter, the extension of Subpart L to hearings on Part 55 licenses arguably would not violate the Atomic Energy Act or the Due Process Clause of the U.S. Constitution.2/ However, as a practical matter, we disagree that the procedures that govern a hearing on a Part 55 license should be identical to those that govern a hearing on a materials license.

First, the interests in a Part 55 license are fundamentally different from those in a materials license. The former is not r.erely an authorization to engage in a regulated activity -- it represents the very livelihood of the licensee. The denial of an '

application for a Part 55 license, particularly for the renewal of that license, effectively terminates a career as a nuclear power plant operator. For this reason, it should not be viewed merely as a typical licensing action. Arguably a materials license also represents the livelihood of the licensee. However, a facility that makes some incidental use of byproduct material is less vulnerable to an unfavorable licensing action. In the interest of fairness, an individual licensee should receive an even greater measure of process compared to that accorded a corporate licensee.

Similarly, the extent of public interest in Part 55 licenses is fundamentally different from that in materials licenses. The 1/ Subpart L was adopted by the Commission on February 28, 1989.

54 Fed. Reg. 8296. It provides for informal adjudications on the issuance, amendment, renewal, or transfer of materials licenses issued under Parts 30, 32-35, 39, 40, or 70.

However, it provides for formal adjudications (i) if the hearing is initiated by the NRC under Section 2.104 (notice j of hearing) or Section 2.105 (notice of proposed action); or l (ii) on show cause orders or orders that impose amendments or f

civil penalties. 10 C.F.R. I 2.1201,

  • l l 2/ However, we observe that the NRC, in its promulgation of

! Subpart L, largely relied on City of West Chicace v. NRC, 701 l F.2d 632 (7th Cir. 1983). The court in that case held that the NRC is not required, under the Atomic Energy Act or the f Due Process Clause, to provide a formal adjudication on a 4 materials license amendment. However, the court never considered a Part 55 license. "In the circumstances of this ,

mang, we find that an informal hearing suffices." 701 F.2d l at 638 (emphasis added). ]

Mr. Scmu01 J. Chilk sacrotary of th9 Commiecion Jun3 26, 1989  ;

Page 3 '

public interest in Part 70 licenses, for example, is apparent. j As a result, Subpart L establishes certain requirements for  !

petitions to intervene in proceedings on materials licenses. 10 >

C.F.R. 6 2.1205. There should be considerably less public interest in involvement in proceedings on Part 55 licenses. We are aware of no instance in which a member of the public j petitioned the NRC to intervene in a proceeding on a Part 55  :

license.

l Seco'nd, the issues adjudicated in hearings on Part 55 licenses are quite different from those adjudicated in hearings on materials licenses. The requirements for a Part 30 license, for example, are largely technical and objective. Egg 10 C.F.R.

$ 30.33 (general requirements for issuance of specific license).

Those requirements are published and understood and are discussed by a license applicant with the NRC before the application is filed. Because they are objective and technical, moreover, they are difficult to misjudge by the individual who reviews and approves the application. In contrast, the requirements for a Part 55 license necessitate several subjective evaluations. Egg 10 C.F.R. S 55.33 (health; written examination and operating test). The examinations and tests for a Part 55 license are not published and understood and are not discussed by a license applicant with the NRC before the application is filed. Because they necessitate several subjective evaluations, they are easy to misjudge by the individual who administers and grades them.

Consequently, the expertise, veracity and demeanor of the individual who reviews and approves a Part 30 license application would not be an issue in a hearing on the license. However, the expertise, veracity and demeanor of the individual who administers and grades the examinations and tests for a Part 55 license could be an issue in a hearing on the license.

Third, and finally, the principal practical rationale for Subpart L is less persuasive in view of the relative volume of Part 55 licenses. "[T]he use of informal procedures involves less cost and delay for parties and the Commission than the use of formal, trial-type procedures . . . . " 54 Fed. Reg. at 8275 (regulatory analysis 'for Subpart L); comeare 54 Fed. Reg. at 17,961 (regulatory analysis for proposed regulation). However, the prospects for hearings on Part 55 licensen are quite j different from those for hearings on materials licenses. In 1987, the NRC issued 700 materials licenses and processed 3800 l

amendments and 1000 renewals. That same year, it issued 798 part 55 licenses and processed 1740 renewals. There apparently were no amendments. Egg cenerally NUREG-1145, vol. 14, 19.83_ NE_C Annual Raport at 30, 73. It is difficult to generalize on the basis of these figures. However, it is apparent that, because its materials licensees generate twice the licensing actions f generated by its Part 55 licenses, the burden on NRC resources of

[ Mr.1Somual'Je Chilk u Sccretary of tho Commiosion June 26, 1989

(' Page 4 1

f Part 55 license hearings should not be expected to rival that of materials license hearings.

Indeed, we have identified only six requests for hearings on Part 55 licenses since 1984 2/ Five of those requests were resolved before a hearing was conducted. Thus the NRC has conducted only one hearing on a Part 55 license since 1984.

Perhaps most importantly, because.of the very limited scope of

.the issues in a Part 55 license renewal hearing, compared to those in a license renewal hearing for a fuel fabrication facility, for example, the former should be brief and involve fewer NRC resources for a shorter period of time.

Opportunity for Formal Adjudication For the foregoing reasons, we believe that, as a practical matter, the procedures that govern a hearing on a Part 55 license f

should not be identical to those that govern a hearing on a materials license. To address the differences between Part 55 licenses and materials licenses, and to acknowledge the different prospects for and issues in hearings on the former, the proposed regulation, at a' minimum, should explicitly preserve the opportunity for a formal adjudication on a Part 55 license upon a demonstration of good cause-that reflects those differences.

Subpart L presently fails to preserve that opportunity explicitly. Section 2.1209(k) authorizes the presiding officer in.a hearing on a materials license to "[rjecommend to the Commission that procedures other than those authorized under this subpart be used in a particular proceeding . . . . " This provision authorizes the presiding officer to advise the Commission to conduct a formal adjudication'under subpart G on a 1

2/ Egg Kenneth L. Burton (Senior Operator License for Millstone Nuclear Power Station Unit No. 3), Docket No. 55-60575, ALJ- I I

86-01, 23 N.R.C. 31 (1986)(unsuccessful examination invalidated and license issued); Alfred'J. Morabito (Senior Operator License for Beaver Valley Power Station Unit No. 1), ]

Docket No. 55-60755, CLI-88-4, 28 N.R.C. 5 (1988) (denial of j license vacated); David W. Held (Senior Operator License for i Beaver Valley Power Station Unit No. 1), Docket No. 55-60402, LBP-88-22, 28 N.R.C. 176 (1988) (issuance of license authorized); Christopher D. Gentile (Senior Reactor Operator License No. 20359), Docket No. 55-20674, 52 Fed. Reg. 47,983 L (Dec. 17, 1987)(rescission of license suspension): Maurice P.

! Acosta, Docket No. 55-08347, 53 Fed. Reg. 32,484 (Aug. 25, 1988)(establishment of Atomic Safety and Licensing Board);

Rodger W. Ellingwood, Docket No. 55-20449, 54 Fed. Reg.

17,847 (April 25, 1989) (designation of presiding of ficer) .

L_. _ _ _ _ . _ _ _ . _ . . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

1

I

'Mr. semuol J. Chilk ..

iSscretary of thoLCommission L- Jun3. 2 6, - 1989 4

.Page'5 materialsTlicense.- However, when'it proposed Subpart L, the NRC

observed that~it " contemplates that this will not be appropriate inLthe. vast majority of cases." 52-Fed. Reg. 20,089, 20,091 (May 29'-1987). ges generally In the Matter-of Seouoyah Fuels Corocration-(Secuovah UF6 to UF4 Facility),.CLI-86-17, 24 N.R.C.

489 (1986) (presiding officer recommendation for formal.

adjudication rejected by Commission).

b .

The-unqualified application of Subpart L to hearings on'Part 55 license's-would result in a similar presumption against formal adjudications. It-also would fail to address and acknowledge the numerous. differences between Part 55 licenses and materials Llicenses. Finally, the proposed regulation-would bolster the L

perception that the NRC issues only two types of licenses --

- those for nuclear power plants-and those not for nuclear power plants.. Ger.erally, Subpart - G' is . appropriate for hearings on Part 50 licenses .ind the procedures codified in Subpart L are appropriate for hearings on Part 55 licenses. However, the codification of that generalization as a legal presumption is neither contemplated by section 189 of the Atonic Energy Act nor

'in'the intrerest of fairness.

We would not urge the Commission to retain its ad hoc development of. procedures for hearings on Part'55 licenses.

Rather, we believe Subpart L should be amended to preserve explicitly the opportunity for.a formal adjudication for' good cause. First,.Section 2.1205(b) should provide the Part 55

-license applicant "who is. issued a notice of proposed denial or a notice of denial" with the opportunity to include in.his request I

, for a hearing a specific request for a formal adjudication. It should require the specific request to explain the circumstances that require discovery, confrontation and examination'of witnesses, and the other-formal-procedures under Subpart G.

~

Those' circumstances would arise, for example, if a Part 55 licensee failed an initial examination but believed the examination was unfairly administered and graded. In that case,

- the' expertise,. veracity, or demeanor of the individuals who administered and graded-the examination would be an issue that is critical-to the resolution of the case.

Second, Section 2.1205(n) should provide that the denial of a specific request for a formal adjudication on a Part 55 license also is appealable. Third, Section 2.1209 should authorize the presiding officer in a Part 55 hearing to grant the specific request; it should not require a Commission order. It also should authorize the presiding officer to entertain a specific i request for a formal adjudication or for certain formal procedures in the course of the hearing if it becomes apparent only later that those procedures are necessary, i

l

_ _- _ _ _ _ _ - _ - _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ .~

Mr. Shmual'J. Chilk-S crOtcry ofotha Ccmmission Jun3 26, 1989'

Page 6 f, .

p Those amendments to Subpart L would explicitly preserve the L

opportunity'for a formal adjudication, for good cause, on a Part L

55 license, which we believe is a necessary measure to ensure

l. that the license is fairly issued and' renewed. It'also would eliminate'the unfair and legally questionable presumption that a L- Part 55 license is no different from a ma er*lls license.

l Sincer ly ours,

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Nichola S. F eynolds Joseph . Kn tts, Jr.

James W Moe ler W

BISHOP, CO , PURCELL

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Mr. Samuel J. Chilk Secretary.

U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Docketing and Service Branch

-RE: Proposed Rule . Informal Hearing Procedures for Nuclear Reactor Operator Licensing Adjudications 54 Fed. Reg. 17960 (April 26, 1989)

Recuest for Comments

Dear Mr. Chilk:

These comments are submitted on behalf of the Nuclear Management and Resources Council, Inc. ("NUMARC") in response to the request of the U.S.

Nuclear Regulatory Commission ("NRC") for comments on the NRC's proposed f rule entitled " Informal Hearing Procedures for Nuclear Reactor Operator Licensing Adjudications" (54 Fed. Reg. 17961 - April 26, 1989).

NUMARC is the organization of the nuclear power industry that is responsible for coordinating the cembined efforts of all utilities licensed by the NRC to construct or operate nuclear power plants, and of other nuclear industry organizations, in all matters involving generic regulatory policy issues and on the regulatory aspects of generic operational and technical issues affecting the nuclear power industry. Every utility responsible for constructing or operating a commercial nuclear power plant in the United States is a member of NUMARC. In addition, NUMARC's members include major architect-engineering firms and all of the major nuclear steam supply system L

vendors.

The nuclear industry believes that the NRC's proposed codification of hearing procedures for nuclear reactor operator licensing adjudications is '

-fair and appropriate. We' agree that it is appropriate for the NRC to codify its practice so that all parties potentially affected can have a clear i

understanding of what procedure would be followed in any particular circumstance.

The NRC's intended use of informal, legislative-type hearings associated with proceedings for the grant, renewal, or licensee-initiated amendment of a reactor operator's license is an effective way to provide an appropriate forum for the resolution of issues in a cost and resource effective way.

The submittal of written testimony, under oath or affirmation, and the opportunity to make an oral presentation to a presiding officer would seem to provide a process that is fair and would lead to a timely decision, which l Wf 1

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] Mr. Samuel J. Chilk June 26, 1989 Page 2 is very important to an operator whose license and ability to perform under the license are at issue.

For. licensing procedures initiated pursuant to 9 2.104 and 9 2.105, l

formal adjudicatory hearings would be appropriate, as the proposed rule would provide, and particularly so for proceedings initiated under Subpart B of Part 2, or where the imposition of a civil penalty under 9 2.205 applies.

Because of the' potential affect on an operator of these types of proceedings, the full legal and procedural projections afforded by Subpart G are appropriate. It would be desirable for the NRC to clarify that appeals by an operator of the denial of his/her initial application or renewal request, because the significance to the operator is similarly so great, will also be conducted in accordance with Subpart G.

Because a result of the codification of the NRC practice would be to  !

establish rights of other persons to intervene in operator licensing adjudications, under either Subpart L or Subpart G, the NRC should clarify its intent that the provisions of both subparts as they pertain to operator licensing adjudication hearings should be interpreted literally; the threshold should be very high for any person other than the operator whose license is the subject of the proceeding to be allowed to participate as a party to that proceeding.

Section 2.1211 of Subpart L provides for potential participation in a hearing by a person not admitted as a party to that proceeding, which would include a representative of an interested State, county, municipality or an agency thereof; Section 2.715 of Subpart G contains similar provisions. The NRC should clarify in the Statement of Considerations accompanying the final rule that. no individual or representative of a governmental instrumentality should be able to use individual operator license proceedings to address any issue other than the issue under 10 C.F.R. Section 55 that is the subject of l

the hearing.

We appreciate the opportunity to comment on this proposed rule and would welcome the opportunity to discuss our comments further with appropriate NRC staff personnel.

Sincerely, Of L* U JFC/RWB:bb

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g>ANKEEATOMCELECTMC COMPANY "C"NM*;"l"I Q, e

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'DGChi % , a LOccretary of,the commission ~ N-m iU.S.' Nuclear-Regulatory commission

  • ;W20hington, D.C.> 20555 Attention:; Docketing'and Service Branch.

'Cubject: Informal Hearing Procedures for Nuclear Reactor l Operator Licensing Adjudications (54FR17961)

Desr' Sir:

Yhnkee Atomic Electric ~ Company : (YAEC) appreciates the opportunity to comment on theLsubject proposed rule change to 10 CFR Part 2.

YAEC owns and operates a nuclear power plant in Rowe,

Massachusetts. Our Nuclear Services Division also provides sngineeringiand licensing. services for other nuclear power plants

'in the Northeast,-including Vermont Yankee, Maine Yankee, and Szabrook.,

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W3' support NRC'.s proposal to provide rules;of' procedure for the ccnduct of informal adjudicatory hearings in nuclear reactor opsrator lic'ense proceedings. We believe, however,.that applicants 2chould be afforded.the opportunity.to request'a formal hearing under 10 CFR Part 2, Subpart-G in special cases. To~our knowledge, tha infrequent. requests for adjudicatory hearings _on operator- L

.' license proceedings indicates that it'is not a process'being abused

by licensees, and it has not been a burdensome regulation.for NRC

.to: implement'(particularly in view of the due process protection it

-offords411censees). The NRC even admits in'the " Regulatory

. Flexibility-Certification" to the proposed rule'that it is questionable as'to'whether there will be a significant cost

~

~raduction in comparison to the cost of participating in a formal

! adjudicatory hearing.

~

,Because the scope of issues in a Part'55 operator license

.proceedi~ng.are limited, and the operator license proceeding is o_f

-cuch fundamental importance to the individual operator, we urge the

Commission.to' explicitly include provisions for formal l adjudications in special circumstances. For instance, it would
esem' appropriate that an individual whose entire' career could be anded as a result of a denial for license renewal, should be efforded the opportunity to-initially request a formal hearing and,

.if_needed, to request one upon appeal of an unfavorable hearing i

' dscision. -

Finally, in addition to the rights of the applicant, the proposed

-rule establishes the rights of other parties to request a hearing

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1f'  ;'cr' intervene in operator license _ proceedings. To ensure that such-requests for participation are not indiscriminate,.such as solely

.for the purpose of creating unnecessary schedular delays, we urge

.the Commission to' impose a threshold for participation that exceeds l- .the strict judicial. standing test that'has been formulated-for licensing hearings for nuclear power plants. We urge the Commission to specifically require that, to be granted standing, a third party demonstrate that it has information that would~

materially alter the outcome-'of the.NRC hearing decision.-

Sincerely,- ..

Donald W. Edwards Director of Industry Affairs JMG/ef i

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[____ _ . _ _ _ _ _ _ _ _ _ _ _ _ ._ . _ _ . _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ . _ _ . _ _ _ _ _ _ _

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PROFESSIONAL

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~J7 SOCIETY E414-755-2725

> Office of the Secretary U.S. Nuclear Regulatory. Commission Wcchington', D.C. 20555 June 26, 1989

. ATTN:-Docketing.and Service Branch 4

SUBJECT:

Federal Register Notice / Vol. 54, No. 79 / April 26, 1989 / Proposed Rules 17961 10:CFR Part 2 Informal Hearing Procedures for Nuclear Reactor Operator Licensing Adjudications I would.like to' request a thirty (30) day extension of the comment period for the above referenced rule.

In the past few days our organization was made aware of the fact.that this proposal may eliminate the option of a formal hearing in cases related to the licensing of reactor operators and senior reactor operators.

I request the extension in order clarify and respond to the implications of this proposal.

Thank you, S M ,-

Jim Peterson j President I

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I xc Karla Smith, Ofice of the General Counsel P.O. Box 181, Mishicot, Wisconsin 54228-0181 4 Q / 3 } h g b 3 2. - QT ~~

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'. Samuel J. Chilk, Secretary U.S. Nuclear Regulatory Commission 1.ttnt Docketing and Service Branch l Washington, DC 20555

s

Subject:

Proposed Rule on Informal Hearing Procedures for Nuclear Reactor Operator Licensing Adjudications (54 Fed. Reo. 17961. Avril 26, 1989)

' Dear Mr. Chilks This provides Commonwealth Edison's comments on the subject proposed rule. In that proposal, the Nuclear Regulatory Commission (NRC) proposes to interpret the hearing provision in Section 189a of the Atomic Energy Act of 1954, as amended,-42 USC 2239(a), as it applies to Operators (ROs) and Senior

. Operators (SROs) of nuclear reactors. Since ROs and SROs are NRC licensees under Section 107 of the Atomic Energy Act, 42 USC 2137, they (ROs and SROs) are entitled to a hearing in any proceeding for the granting, suspending, revoking or amending of an operating license. The nature of that hearing, however,'is not specified by the Atomic Energy Act.

The NRC proposes to interpret the statutory hearing language differently depending.on whether an applicant / licensee or the NRC initiates l

the license proceeding. If an applicant or licensee initiates the proceeding, the hearing would be conducted in accordance with the informal adjudicatory procedures which were recently adopted by the NRC as Subpart L to 10 CFR Part

2. This determination to adopt informal procedures for licensee-initiated proceedings is consistent with recent NRC practice. By contrast, if the NRC initiates the proceeding, then the hearing would be conducted in-accordance with the formal adjudicatory procedures in Subpart G to 10 CFR Part 2. The decision to apply formal procedure under these circumstances is based on an analogy between these circumstances and NRC enforcement actions for which forma 2, trial-type hearings are provided.

This proposed rule is difficult to comment on meaningfully because the Statement of Consideration does not provide adequate information about the NRC's decision-making process as required by the Administrative Procedure Act. Information was not provided on why Subpart L to 10 CTR Part 2 was considered appropriate for proceedings initiated by ROs and SROs. The justification for Subpart L relles strongly on its formulation for materials

' license issues. Those issues are different from the issues involved in proceedings initiated by ROs/SROs, therefore, it is not clear that the issues raised by ROs/SROs can be addressed appropriately by Subpart L or whether some other informal procedures may be more appropriate.

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m .

.2-

!b Additionally, no basis is provided for interpreting the statutory language in Section 189a in two different ways depending solely on who initiates the. proceeding. It can be argued that an RO/SRO initiated l' . proceeding ~on the NRC's denial to grant a license-is just as important to the RO/SRO as the NRC's initiation of a proceeding to suspend or revoke a license.- Conversely, it can be argued that the reduced cost and shorter time f- of an informal proceeding actually provide greater opportunity for relief for

-an'RO/SRO. These are the kinds of issues which the NRC must address in interpreting the, hearing right in Section 189a.

Based on the previous discussion, Commonwealth Edison urges the NRC to re-notice this proposed rule with u clear statement of the NRC's decision-making process, including a showing of the appropriateness of Subpart L for proceedings initiated by ROs/SROs. Otherwise, the proposed rule should be amended to provide for formal adjudicatory procedures for all license proceedings involving ROs/SROs.

Edison appreciates this opportunity to provide comments on this  ;

proposed rule.  :

Respectfully, M.H. Richter Generic Issues Administrator 9001k33/34 I

4

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4'At'.*fe. (roa) se 007 Dr.BORAH S. CHARNOFF

.. i June'27, 1989 Karla Smith, Esq.

Office:of the. General Counsel Nuclear ~ Regulatory Commission Weehington, D.C. 20555

Dear Ms. Smith:

Following'up on our conversations of. yesterday and today, as you requested,'I am hereby making a written request for an

-extension of time with in w hich to submit written comments on the proposed rule entitled Informal Hearing Procedures for Nuclear Reactor Operator Licensing Adjudications, 54 Fed. Reg. 17961 (April 26, 1989). I would appreciate an extension until July 3, 1989 to submit comments.

Thank you very much for your attention-to this matter.

Sincerely,

[ bu Deborah B. Charnoff a DBC/ff l

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DECORAH B. CHARNOFF h July 3, 1989 %terro '{

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c 1 Mr. Samuel J. Chilk Secretary 4 to U.S. Nuclear Regulatory Commission "

Washington, D.C. 20555

~ Attn Docketing and Service Branch Re: Proposed Rule on Informal Hearing Procedures l for Nuclear Reactor Operator Licensing

~

Adjudications, 54 Fed. Reg. 17961 (Apr. 26, 1989)

Dear Mr. Chilk:

The NRC is proposing to amend.Part 2 of.its regulations in

-order to provide for the conduct of informal adjudicatory hearings in nuclear reactor operator licensing proceedings.

" Proposed Rule on. Informal Hearing Procedures for Nuclear Reactor

. Operator. Licensing Adjudications," 54' Fed. Reg. 17961 (Apr. 26, 1989). On behalf of the Professional Reactor Operator Society i (PROS), these comments oppose the proposal. PROS is a professional' organization whose membership includes reactor operators located at nuclear power plants throughout the United States.

There are two basic problems with the proposed rule which, we believe, require further consideration.

First, it is not possible to discern the circumstances to which the proposal would apply. The proposed rule appears to exclude from its scope all proceedings initiated as a result of proposed enforcement action. See last paragraph of Supplementary Information and proposed Section 2.1201(b). What is extremely vague, however, are the circumstances to which the rule would i apply. Not only is the need for the rule not specified, but neither are all of the scenarios in which the NRC feels that an' informal hearing would be sufficient. At issue, in these circumstances, may be the continued validity of a reactor operator's license, which is a license,that requires enormous

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' t' ' ~A PARTNER 5Mip INCLUDING PRCWCSSIONAL CORPORATIONS Mr. Samuel J. Chilk U.S. Nuclear Regulatory Commission July 3,:1989 training, dedication and time for an individual to obtain and

. maintain, and which is.-'a necessary prerequisite to the career path of the nuclear reactor operator. As the-Commission well

'knows, such d license is protected underLthe United States Constitution:because of its value'as property. More!over, the individual. licensee's liberty interests may also be challenged by NRC's proposed action. And yet no consideration is paid in the-L proposed rule to these important rights, nor does the proposal:

specify the precise circumstances under which countervailing-considerations nevertheless should take precedence.

Our._second comment concerns the need for the proposal. In view of the critically important rightd'of operators that are at issue here, PROS would support a proposal which gave to operators the opportunity to utilize informal processes, without requiring:

them to do so. This might simplify procedures when all of the parties agree that it is appropriate and advantageous to do so.

However, this option is not equivalent to the denial to an operator of the opportunity to cross-examine witnesses, for example, when his license may be at stake, and to take advantage of the other more formalized procedures set forth-in Subpart G of 10 C.F.R. Part 2.

In summary, we urge the Commission to reject the proposal as drafted and to either withdraw it, or modify it so that the proposed informal procedures are another-option available to but not adjudi' cations.

required for nuclear reactor operator licensing -

Respectfully submitted, DAkhe44.AA. 0 Deborah B. Charnoff, on behalf of the Professional Reactor Operator Society DBC/ff 9

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Informal Hearing Procedures forfr o s u o^, !

Nuclear Reactor Operator Licensing AdjudWatig[*d h

LAGENCY:. Nuclear. Regulatory Commission.

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y ACTION: Proposed rule: Extension of comment ;,eriod.

4

SUMMARY

.On_ April 26,1989, (54;FR 17961), the. NRC published for public 'coment

'a proposed rule to' amend its regulations to provide procedures for the conduct of

. informal adjudicatory hearings 'in. nuclear reactor operator licensing proceedings.

The coment period for. this-proposea rule was to have expired on June 26, 1989.

On June 26, 1989, the Professional' Reactor Operator Society requested a

. thirty-day extension of the comment period and on June 27, 1989 Shaw, Pittman, Potts _& Trowbridge law firm, on behalf of several of its clients. requested an extension until July 3, 1989. Around this same time, two other individuals -

requested copies of the rule and indicated that they may' file written requests for extensions of time. :In view of the importance of the proposed rule, the

' recent interest of the public in the rule, the amount of time that the' requesters suggest is required in order to provide ~ meaningful. comments, and the desirability-of. developing.a final rule as soon as practicable, the NRC has decided to extend the coment period for an' additional forty-five days. The extended comment period now expires on August 10, 1989.

k DATES: The comment period has been extended and now expires August 10, 1989.

Comments received after this date will be considered if it is practical to do so WBpl '%/~ )

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but the Comission is able to assure consideration only for coments received 'l before this date.

, ADDRESSES: i Send written comments or suggestions to the Secretary.of the'

] t Comission, U.S. Nuclear Regulatory Comission, Washington, DC 40555, ATTN- i Docketing and Service Branch._ ' Hand deliver coments to Docketing and Service Branch. One White Flint North,11555 Rockville Pike, Rockville, MD between 7:30 am and 4:15 pm. Examine comments received at: The NRC Public Document Roora, t i 2120 L Street NW., Washington, DC. j

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1 FOR FURTHER INFORMATION CONTACT: Karla Smith, Attorney, Office of the General Counsel, U.S. Nuclear Regulatory Comission, Washington, DC 20555. Telephone J

(301)492-1606. i

. Dated at Washington, DC this day of , 1989. 4 For the Nuclear Regulatory Comission

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f SAMUEL.7. t,rnLK Secretary of the Comission 1

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DOCKL Mi: J. aos) **a+oor BRati DESORAH 3. CHARNorr' July 5, 1989 BY HAND Mr. Samuel J. Chilk Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attn Docketing and-Service Branch Re:. Proposed Rule on Informal Hearing Procedures for Nuclear Reactor Operator Licensing Adjudications, 54 Fed. Reg. 17961 (Apr. 26, 1989)

Dear Mr. Chilk:

Enclosed please find a corrected copy of our filing, submitted on July 3 on bepalf of the Professional Reactor

- Operator Society (PROS). The prior filing had a word out of order on the second page.

Thank you.

. Respectfully submitted, D M (b .

Deborah B. Charnoff, on behalf of the Professional Reactor Operator Society DBC/ff 4

l 1

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AD17-1 PDR 28822 Federal Register / Vcl. 54. No.130 / Monday. July 10. 1989 / Proposed Rules 1

c.The indemnity will be determined on 21. Contract Changes each untt by: Actsosc Proposed rule: Fxtension of 11l multiplying th3 insured tor:nage of The date by which contrac changes wi!! be comment period.

raisins by the emot it of insurance per ton: available in your service offi eis April 30 pmceding the cancellation d te.

' ' sussenAny:On April 20.1989. (54 FR all su d ma under ged rs s$ns: 12. Meaning of Terms 17961), the NRC published for public and comment a proposed rule to amend its

a. Tmp year"means th calender year in (3) multiplying th(result by your share. which the raisins are plac on trays for regulations to provide procedures for the
d. Undamaged rai ins or raisms damaged drying.

solely by unmsured .auses will be valued at conduct ofinformal adjudicatory the insurance price see subsection 12.c.).

b. "Delieered ton"mes a ton of raisins or hearings in nuclear reactor operator raisin matenal dehvered a buyer or a licent.ing proceedings. The comment
e. Raisins damag d partially by rain and reconditioned. adjusted i moisture over 16 partially by unins ed causes will be valued percent and adjusted for ubstandard raisins period for this proposed rule was to at the highest prica obtainable, subject to an over 5 percent. have exp red on June 26.1989. On June adjustment for anj reduction in value due to c. fasumnceprice.m ans the value 28.1989. the Professional Reactor unmsured causes. established by us for rati in tonnage for the Operator Society requested a thirty-day
f. Raisins damaled by rain, but which are purpose of deternuning l r'idemnities. This extension of the comment period and on recondition,ed and meet the Raisin value is shown in the a .uarial table. June 27.1989. Shaw.Pittman. Potts &

Administrative Ccmmittee (RACI standards for raisins, will be valued at the insurance

d. '%ncontiguous d"means land which Trowbridge law firm, on behalf of is not touching at any int. Land which is several of its clients, requested an price. An allowance for reconditioning will separated by only a pt. lic or pnvete nght-of.

be deducted fra (he value only if you way will be considered to be touching extension until July 3.1989. Around this obtained our writtan consent pnor to guous). same time, two other individuals recond tioning Thd ellowance for (cont)Wolsins e. means a of pecific varietics requested copies of the rule and reconditioning willhe made only when the grapes. designated ins .rable by the actuanal indicated that they may file wntten raisins have been inspected by the USDA table, which have bee ilaid on trays or are in requests for extensions of time. In view and. due to rain dar6 age while on the tray arv rolls in the vineyard t< dry. el the importance of the proposed rule, found to contain mojd. embedded sand. f. 'Roisin tonnope part"means a form the recent interest of the put.Sc m the excessive moisture. Dr micro /orgamsms in prescribed by us for nually reportmg all the rule, the amount of time that the excess of RAC tolerances. tonnage or raisms in he county in which you The reconditioning allowance will be made haveasha e. requesters suggest is required in order to based on the actual (unadjustedl weight of g. 'Substandonf" eens a quality of raisins provide meaningful comments, and the rzisins to be recondaioned. Additionally, that fall to meet the .quirements of U.S* desirability of developing a final rule as i

' when raisins contais excessive moisture due Crade C except the layer or cluster raisins soon as practicable. the NRC has to rain. the reconditloning allowance will be with seeds or Zant Currant raisins will be decided to extend the comment period I

anade only when the moisture is determined considered substa ard if they fail to meet for an additional forty-five days. The to be in excess of 18.0 percent and the raisins the requirements og'U.S. Grade B. extended comment period now expires I

1 are wash-and-dry spconditioned.The h. "Toble g mean Frapes which are on August 10.1989.

rneximunt allowan$e for reconditioning is grown for comme ialsales as fresh grapes

  • contained in the aduarial table, but the total on acreage where he cultural practices t DATES:The comment period has been reconditionmg allowance will not exceed the extended and now expires August 10.

{ro u fresh ut. mar, etable grapes were s alue of the raisms after reconditioning. We 1989. Comments received after this date may require you to recondition a 1. " Ton"means 2 pounds. Raisin will be considered ifit is practical to do I

representative sample of not more than10 tonnage may be camputed on the basis of one so but the Commission is able to assure tons of raisins to deterimine if they meet RAC ton of raisms instred for every four and one- consideration only for comments standards for madetable raisins. On the half tons of fresh grapes when first placed on recelved before this date.

Amsis of determmations made after such trays for drying.

remphng. we may)equire you to recondition f "M insMon"aneans de actual determination by i USDA inspector of all Amm W Wen came m all raisins or we npy value such ransms at suggestions to the Secretary of the the insurance pnce. If the representatwe defects. Limited er pections or inspections on Commission. U.S. Nuclear Regulatory sample does not nmet RAC standards for submitted samples are not considered "USDA inspection ." Commission. Washington. DC 20555, marketable raisins the cost of reconditioning ATTN: Docketing and Service Branch.

the sample will be feducted from the totaj Done in Washin ton. DC on June 22.1989. Hand deliver comments to Docketing

. value of the raisins for the unit. John Marshall.

i g The value to cc unt for any raisins and Service Branch. One White Flint I Afonoper. Adem/C 9pInsumnce North.11555 Rockviile Pike. Rockville.

retur+d on the un, t end not removed from corpomgion.

MD between 7:30 a.m. and 4:15 p.m.

p sal alu of $35. t ton. (FR Doc. 89-10123 yiled 7-7-89; 845aml Examine comments received at:The You must box and' deliver any ra: sins that swuo caos ante NRC Public Document Room,2120 L czn be removed frpm the vineyard. _ Street NW., Washington DC.

h. We may acothre a!! the nghts and title to 3cmr share of any raisins damaged by rain. In NUCLEAR REGULATORY Pon PURTHER mPonesar:0w costf acT:

euch e, vent. the ra sins will be valued at Karla Smith. Attorney. Office of the

'rero in determining the amount of loss and COMMISSION General Counsiel. U.S. Nuclear ws will have the ight of ingress or egress to Regulatory Commission. Washington, the extent neces try to tako possession of. 10 CFR Part 2 DC 23555 Telephone (301) 492-160ft-c:re ior, and te . ved such raisins.

1. Raisins des oyed without USDA RIN 3150-AD17 Dated at Washington. DC, this 3rd day of
  • '" "8 July.1989.

n t i i et die f informal Hearing Procedures for For the Nuclear Regulatory Commission.

insurance Nuclear Reactor Operator Licenalng Adjudications SamuelI Chilk.

10. Cancellation nd Termination Dates Secn tory of the Commission.

The cancellation and termmation dates are Aotwer: Nuclear Regulatory IFR Doc. OS-1c125 riled 7-7-82. 8 45 aml July :tt. Commission. swwo cops rsse.ei-ai t

i i

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