ML23151A381

PR-002 - 52FR03442 - Issuance or Amendment of a Power Reactor License or Permit Following an Initial Decision

ML23151A381
Person / Time
Issue date:	02/04/1987
From:	Chilk S NRC/SECY
To:
References
PR-002, 52FR03442
Download: ML23151A381 (1)

Text

DOCUMENT DATE:

TITLE:

CASE

REFERENCE:

KEYWORD:

ADAMS Template: SECY-067 02/04/1987 PR-002 - 52FR03442 - ISSUANCE OR AMENDMENT OF A POWER REACTOR LICENSE OR PERMIT FOLLOWING AN INITIAL DECISION PR-002 52FR03442 RULEMAKING COMMENTS Document Sensitivity: Non-sensitive - SUNSI Review Complete

STATUS OF RULEMAKING PROPOSED RULE:

PR-002 OPEN ITEM {Y/N) ?

RULE NAME:

ISSUANCE OR AMENDMENT OF A POWER REACTOR LICENSE 0 R PERMIT FOLLOWING AN INITIAL DECISION PROPOSED RULE FED REG CITE:

52FR03442 PROPOSED RULE PUBLICATION DATE:

02/04/87 NUMBER OF COMMENTS:

14 ORIGINAL DATE FOR COMMENTS: 04/06/87 EXTENSION DATE: 05/06/87 FINAL RULE FED. REG. CITE: 54FR07756 FINAL RULE PUBLICATION DATE: 02/23/89 OTES ON COMMISSION APPROVED FINAL RULE BY A 5-0 VOTE (SRM-M890202C).

TATUS SEE SECY 89-076 AND 54 FR 28822 (EXT. COMMENTS).

FILE LOCATED ON OF RULE Pl.

TO FIND THE STAFF CONTACT OR VIEW THE RULEMAKING HISTORY PRESS PAGE DOWN KEY HISTORY OF THE RULE PART AFFECTED: PR-002 RULE TITLE:

ISSUANCE OR AMENDMENT OF A POWER REACTOR LICENSE 0 R PERMIT FOLLOWING AN INITIAL DECISION PROPOSED RULE SECY PAPER: 86-296 FINAL RULE SECY PAPER: 88-358 CONTACTl: PAUL BOLLWERK CONTACT2:

PROPOSED RULE DATE PROPOSED RULE SRM DATE:

12/02/86 SIGNED BY SECRETARY:

01/29/87 FINAL RULE DATE FINAL RULE SRM DATE:

02/09/89 SIGNED BY SECRETARY:

02/16/89 STAFF CONTACTS ON THE RULE MAIL STOP: H-1015 MAIL STOP:

PHONE: 634-3224 PHONE:

DOCKET NO. PR-002 (52FR03442)

In the Matter of ISSUANCE OR AMENDMENT OF A POWER REACTOR LICENSE 0 R PERMIT FOLLOWING AN INITIAL DECISION DATE DATE OF DOCKETED DOCUMENT 01/29/87 01/29/87 01/29/87 01/29/87 03/25/87 03/21/87 04/03/87 04/03/87 04/06/87 04/02/87 04/06/87 04/02/87 04/06/87 04/03/87 04/07/87 04/06/87 04/08/87 04/06/87 04/09/87 04/06/87 04/10/87 04/06/87 04/17/87 04/14/87 04/20/87 04/15/87 04/20/87 04/14/87 04/20/87 04/20/87 05/06/87 05/06/87 TITLE OR DESCRIPTION OF DOCUMENT FEDERAL REGISTER NOTICE - PROPOSED RULE FEDERAL REGISTER NOTICE - PROPOSED RULE COMMENT OF OHIO CITIZENS FOR RESONSIBLE ENERGY, INC (SUSAN L. HIATT) (

1)

LTR FM JAYE. SILBERG TO PAUL BOLLWERK, OGC, RE DISCUSSIONS WITH DOE COMMENT OF ECOLOGY/ALERT (E. NEMETHY) (

COMMENT OF YANKEE ATOMIC ELECTRIC COMPANY (D. W. EDWARDS) (

3)

2)

COMMENT OF NEWMAN & HOLTZINGER (ALVIN H. GUTTERMAN) (

PROPOSED RULE; EXTENSION OF COMMENT PERIOD COMMENT OF DUKE POWER COMPANY (ALBERT V. CARR, JR.) (

COMMENT OF LEBOEUF, LAMB, LEIBY & MACRAE (HARRY H. VOIGT) (

6)

COMMENT OF TUELECTRIC (W. G. COUNSIL) (

COMMENT OF BALTIMORE GAS AND ELECTRIC (JOSEPH A. TIERNAN) (

8)

COMMENT OF ATOMIC INDUSTRIAL FORUM (

7)

9)

COMMENT OF GEORGIA POWER COMPANY (L. T. GUCWA) (

10)

COMMENT OF MARVIN I. LEWIS (

11)

COMMENT OF UCS AND NECNP (DIANE CURRAN/ELLYN R. WEISS) (

12)

4)

5)

DOCKET NO. PR-002 (52FR03442}

DATE DATE OF DOCKETED DOCUMENT 05/06/87 05/12/87 02/21/89 05/06/87 05/11/87 02/16/89 TITLE OR DESCRIPTION OF DOCUMENT COMMENT OF EDISON ELECTRIC INSTITUTE (JOHN J. KEARNEY} (

13}

COMMENT OF DEPARTMENT OF ENERGY (BEN C. RUSCHE} (

14}

FINAL RULE PUBLISHED IN FED REG 2/23/89 AS 54FR07756

10 CFR Part 2

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OOCK[i rn

'89 FEB 21 P 6 :42 Issuance or Amendment of Power Reactor Licen~e -r or Permit Following Initial Decision b~~

AGENCY:

Nuclear Regulatory Commission.

ACTION:

Final rule.

SUMMARY

This final rule makes mir.or changes in the Commission'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 affinning the validity of the Colllllission's existing procedures relating to the "immediate effectiveness" of a presiding officer's decision, the Commission 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 the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555.

Telephone: (301) 492-1634.

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• NU-: EAR REGULATO Y COMMISSIOO DOC ETING & SE VICE SECTION 0~ lCE OF THE SECRET ARY CiF THE COMMISSION D!Xument Statistics ostm~rk Date Copies Received ---------

~ d d' I Copi-3, Reprodu,ed _,__ ____ _

li,e~ral Distribution

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SUPPLEMENTARY INFORMATION:

On February 4, 1987, the Comnission published in the Federal Register (52 FR 3442-3447) proposed amendments to its Rules of Practice (10 CFR Part 2) that would revise its existing rule governing when a presiding officer's decision in favor of authorizing the issuance or amendment of a license or permit will become "effective" so as to pennit 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 Appea1 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 Comnission's existing rule relating to effectiveness reviews for reactor operating licenses was upheld against arguments that 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 protections 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 Cormnission's effec~iveness review procedure allowing for th& issuance of an operating license before the completion of the internal agency appellate process was 2

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lawful. 800 F.2d at 1205-07.

In Eddleman, the United States Court of Appeals for the Fourth Circuit held that this procedure could be conducted without providing the procedural rights and protections afforded by the APA for fonnal adjudicatory hearings.

825 F.2d at 48.

As a result of these two cases upholding its present effectiveness procedures, the Co1T111ission has decided not to revise those procedures as proposed, with one exception. That exception is the revision to remove the TMI-related portions of§ 2.764, specifically all or portions of paragraphs (e)(l)(ii), (e)(2)(ii), and (f)(l)(ii).

Of the fourteen c011111ents on the proposed rule, only three made specific mention of this proposal to delete TMI-2 related language.

Two of the conments, 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 conment, filed by two public interest groups, opposed deletion of these provisions on the ground that all TMI 0 lessons learned' have not been incorporated adequately into the Co11111ission 1s regulations.

In the Statement of Considerations supporting the proposed rule, the Conmission declared that 11[t]he NRC staff has advised the Commission that all 1copies of NUREG-0737 1nay be purchased 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 Infonnatfon Service, 5285 Port Royal Road, Springfield, VA 22161.

A (Footnote Continued) 3

[7590-0lj applicable NUREG-0737 action items are covered by regulatory changes and that a license applicant's compliance with existing regulations is a sufficient response to all applicable TMI-2 accident 'lessons learned 111

• (52 FR 3144).

Accompanying this statt:!lllent were references to a number of specific regulatory changes that are examples of the incorporation of those action items into the NRC's rules.

Id.

In opposing this revision, the. COITl!lenters provide only the unsupported 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§ 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)(l). 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 information collection requirements and therefore 1s not subject to the requirements of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.).

Regulatory Analysis As a result of recent judicial decisions aff1nning th~ legality of the Corrmission 1s existing rule governing the "inmediate effectiveness 11 of initial decisions in reactor operating license proceedings, the Commission has decided not to take further action to revise the existing rule's procedures on effectiveness reviews.

However, retention of the TMI-2 related provi~ions of the current i11111ediate effectiveness rule is unnecessary and would be niisleadlng 5

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to participants in NRC licensing proceedings.

Those provisions are, therefore, being deleted.

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 Certific?tion 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 impact 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 definition 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 1s size standards published December 9, 1985 (50 FR 50241).

Further, intervenors 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 C011111ission policy statement on litigation of 11'11-related issu~s are effective substitutes for the existing TMI-2 related provisions of the inmediate effective rule being deleted by thi~ 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 Part 2 - Administrative practice and procedure, Antitrust, Byproduct material, Classified infonnation, 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 issuedunder secs. 53, 62, 63, 81, 103, 104, 105, 68 Stat. 930, 932, 933, 935, 936 1 937, 938, as amended (42 U.S.C. 2073, 2092, 2093 1 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.

7

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5871). Sections 2.102, 2.103, 2.104, 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 lA 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 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). 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, 84 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§ 2.764, paragraphs (e)(l), (e)(2)(iii), and (f)(l} are revised to read as follows:

§ 2.764 Illlllediate effectiveness of initial decision directing issuance or amendment 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' de~i~ions concerning construct1on*permits shall 8

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not become effective until the Appeal Board and Commission actions outlined in paragraphs (e)(2) and (e)(3) of this section have taken place.

(2) *

(ii) In deciding these stay questions, the Appeal Board shall employ the procedures set out in 10 CFR 2.788.

In addition to deciding the stay issue, the Appeal Board shall inform the Colllllission if it believes that the case raises issues on which prompt Commission policy guidance, particularly guidance on possible changes in present C0111nission 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 Co1T111ission.

The Commission 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 Commission, the Appeal Board shall conduct its nonnal appellate review of the Licensing Board decision after 1t has issued its decision on any stay request.

(f) *

(1) AtGmic Safety and Licensing Boards.

Atomic Safety and Licensing Boards shall hear and decide all issues that come before them, indicating in 9

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their decisions the type of licensing action, if any, which their decision would authorize. A Boara's decision authorizing issuance of an operating license may not become effective insofar as it authorizes operating at greater than 5 percent of rated power until the Conmission actions outlined below in paragraph (f)(2) of this sectivn have taken place.

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) ot this section.

Dated at Rockville, MD, this ;r! day of f.J,~1989.

r Regulatory Conmission.

he Conunission.

10

DOCKET NUMBER PR-~

PROPOSED RULE

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~ /'Y Department of Energy ( 5Z r-~..J.tf,(,t) rolK[ ff Washington, DC 20585

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• J ) *~ < l MAY 111987 Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555 ATTN:

Docketing and Service Branch

Dear Sir:

• a7 MAY 12 Al 1 : 1 4 The Department of Energy, Office of Civilian Radioactive Waste Management has reviewed and would like to provide you comments on the proposed rule regarding Issuance or Amendment; Power Reactor License or Permit Following Initial Decision, 10 CFR Part 2, the immediate effectiveness rule.

The Office of Civilian Radioactive Waste Management is responsible for administration of the Nuclear Waste Policy Act and will be the applicant for a license under 10 CFR Part 72 for the monitored retrievable storage facility, if approved by Congress.

Under the current rule the Commission excepts certain licenses from the immediate effectiveness provisions.

Among these exceptions are licensing of construction and operation of an independent spent fuel storage installation under 10 CFR Part 72, which includes provisions for licensing a monitored retrievable storage facility.

The preamble to the proposed rule clearly states that the Commission has institutionalized into the regulations and regulatory guides the precautions which led to the exceptions to the immediate effectiveness rule.

Therefore, the Commission is deleting the exception to the immediate effectiveness rule with respect to reactor construction and operating licensing actions.

Recently the Commission revised 10 CFR Part 72, making it less restrictive, since there is less perceived accident hazard than for other nuclear facilities.

The current and proposed rules in Part 2 stand in contrast to the position taken in the Part 72 revisions.

On the proposed rule a license for an independent spent fuel storage installation, or a monitored retrievable storage facility, is treated more restrictively than a license for a power reactor.

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Assurance of the public safety will be the goal of both the Commission and the Department of Energy in any licensing actions under Part 72.

The safety concerns to be presented in license applications for a monitored retrievable storage facility are vastly different from those presented in a reactor licensing action.

While the recent revisions to Part 72 recognize these differences the proposed Part 2 rule does not.

We urge the Commission to reconsider the exception with respect to Part 72 under the proposed 10 CFR Part 2.

We appreciate the opportunity to comment on the proposed rule.

~~ ~~

Ben C. Rusche, Director Office of Civilian Radioactive Waste Management

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EDISON ELECTRIC INSTITUTE The association of electric companies 11 1119th Street, NW.

Washington, D.C. 20036-3691 Tel: (202) 778-6400 May 6, 1987 Mr. Samuel Chilk Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D. C.

20555 J. KEARNEY, Senior Vice President DOCKETED l13NRC "87 MAY -6 A9 :t 7 Re:

Proposed Rule (10 CFR Part 2) on Immediate Effectiveness of Adjudicatory Decisions on Licenses, Permits, and Amendments (52 Fed. Reg. 3443)

Dear Mr. Chilk:

On February 4, 1987, the Nuclear Regulatory Commission published in the Federal Register a proposed amendment to 10 CFR

§2.764.

The proposed rule would modify the current NRC regu-lations governing the procedures for issuing licenses, permits, and amendments following a favorable initial adjudicatory deci-sion that resolves all issues before the presiding officer.

The Edison Electric Institute (EEI) and the Utility Nuclear Waste Management Group (UNWMG) are pleased to comment on the proposed rule.

EEI is the association of the nation's investor-owned electric utilities, whose members serve seventy-three percent of all ultimate electricity customers.

UNWMG i s a group of forty-three publicly and investor-owned electric utilities formed specifically to provide active oversight of the implementation of the Federal statutes concerning radioactive waste management.

In general, the proposed rule would treat different types of licensing actions in different ways.

For reactor construction permits, the proposed rule would exclude immediate effectiveness altogether.

For reactor operating licenses, the proposed rule would decouple license issuance from the effectiveness of adjudi-catory decisions.

Instead of requiring affirmative Commission action before a favorable initial decision for operation above 5%

power could become effective, the proposed rule would provide for Commission review (outside the adjudicatory process) of the contested and uncontested issues and a determination by the Commission (also outside the adjudicatory process) whether the Director of Nuclear Reactor Regulation should issue the license.

For initial licenses or construction authorizations under Parts 60, 61, and 72, the proposed rule would make essentially no substantive changes in the present regulation.

Express Commission authorization would continue to be required before MAY o 8 1987 Acknowledged by card, *** : *. ; ~~h.-v

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Mr. Chilk May 6, 1987 Page 2 initial decisions authorizing such licenses or authorizations could become effective and before such licenses or authorizations could be issued.

EEI/UNWMG, in general, support the concept of removing unnecessary restrictions of the issuance of licenses, permits, and amendments and once again making initial adjudicatory de-cisions immediately effective.

For this reason, EEI/UNWMG cannot support the continued restrictions on the effectiveness of licensing decisions under 10 CFR Parts 60, 61, and 72 and on the issuance of licenses under those amendments.

The Commission in its proposed rule has provided no basis for retaining the immedi-ate effectiveness exceptions for these licensing decisions.

The Supplementary Information accompanying the proposed rule merely states that "[t]he rule as proposed continues the existing references to Part 72 and Part 60 proceedings as exceptions to immediate effectiveness."

The proposed rule should be modified to make Parts 60, 61, and 72 initial decisions immediately effective.

EEI/UNWMG see no principled justification for treating licensing decisions under Part 60, 61, and 72 differently from operating reactor licensing decisions under 10 CFR Part 50.

No such justification appears in the proposed rule or in the accompanying Supplementary Information.

(Indeed, should the Commission in issuing a final rule set forth such a justifi-cation, EEI/UNWMG would be unfairly deprived of their rights to comment on it).

EEI/UNWMG believe that licensing decisions under Parts 60, 61, and 72 should at the very least be treated in the same manner as reactor operating license decisions.

This unnecessarily restrictive treatment is perhaps most obvious in the case of Part 72 licensing decisions.

In pro-mulgating and amending 10 CFR Part 72, the Commission has em-phasized that the "potential risk is small" from Part 72 facil-ities. See,~' 43 Fed.~ 46309, 46310 (1978);

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74693, 74695 (1980) ( "The storage of spent fuel in an ISFSI is a low risk operation..* ").

In the recently proposed amend-ments to Part 72 to incorporate the Monitored Retrievable Storage Facility (MRS), the Commission concluded that:

special offsite emergency preparedness is not necessary for spent fuel storage because doses calculated to result from potential accidents are far below the protective action guides set by the Environmental Protection Agency for implementing protective actions for nuclear incidents.

Mr. Chilk May 6, 1987 Page 3 51 Fed.~ 19106, 19109 (1986).

For example, the most serious accident in the NRC's 1981 site-specific analysis of the Morris ISFSI produced postulated doses at 150 meters of only 16 millirem (whole body) and 0.4 millirem (thyroid).

Id.

Accident evalua-tions for dry cask storage yield similarlylow doses.

Id. (3 millirem whole body; 40 millirem thyroid).

Where the postulated risks associated with operation of Part 72 facilities are small and any other impacts associated with such facilities certainly no greater than those associated with reactors, there is no justification for imposing more restrictive licensing procedures on Part 72 facilities than on reactors licensed under Part 50.

For these reasons, EEI/UNWMG urge that the Commission apply the immediate effectiveness rule to licensing decisions under Parts 60, 61, and 72.

Sincerely yours, JJK/nmm

UNITED STATES OF AMERICA BEFORE THE NUCLEAR REGULATORY COMMISSION Proposed Rule:

Issuance or Amendment; Power Reactor License or Permit Following Initial Decision 5 2 Fed. Reg. 3, 4 4 2 (February 4, 1987)

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COMMENTS BY UNION OF CONCERNED SCIENTISTS AND NEW ENGLAND COALITION ON NUCLEAR POLLUTION Introduction DOCKETED USNRC

'87 HAY -6 p 4 :29 The Nuclear Regulatory Commission ("NRC" or "Commission")

has published for comment a proposed rule that would make sig-nificant changes to the Commission's "immediate effectiveness" rule.

As discussed below, the Union of Concerned Scientists

("UCS") and the New England Coalition on Nuclear Pollution

("NECNP") oppose the majority of these changes, which seriously infringe upon the public's right under the Atomic Energy Act to a fair and impartial hearing on the licensing of nuclear power plants.

UCS and NECNP also oppose the Commission's proposal to delete from its regulations governing Licensing Board and Appeal Board review of operating license applications, the requirement to consider the implications of the Three Mile Island accident on regulations and regulatory policy.

These requirements have not been adequately incorporated into the Commission's regulations to justify the deleletion of the requirement that they be consid-ered.

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Immediate Effectiveness Rule Changes It is well established that under Section 189a of the Atomic Energy Act, interested members of the public have a right to a full and fair hearing on all issues that are material to the issuance of nuclear power plant licenses.

See 42 u.s.c. § 2239(a), Union of Concerned Scientists v. NRC, 735 F.2d 1435 (D.C. Cir. 1984), cert. denied, 105 s.ct. 815 (1985).

The pro-posed changes to the immediate effectivness rule seriously impair that hearing right in two fundamental respects

• First, the proposed rule would establish a procedure for a "supervisory review" of Licensing Board decisions by the Commis-sion, outside the strictures of the ex parte rule.

The Commis-sion could consider any extra-record evidence that it wished to, without even informing the public of the nature or source of the information that it was considering.

This extraordinary measure hearkens back to the "star chamber" in which tribunals made secret decisions without accountability to the public.

Such a practice, which has been soundly rejected in this country, affronts basic concepts of due process and open decisionmaking.

It would make a mockery of the hearing rights afforded by the Atomic Energy Act, allowing the Commission to rely on unknown and untested extra-record evidence to decide whether to issue an operating license for a nuclear power plant.

The impartiality of the Commissioners as judges would also be tainted by their exposure to ex parte information.

Second, the proposed practice of allowing the Commissioners to permit the operation of a nuclear power plant before the corn-

3 -

pletion of the merits review in a contested operating license case violates the public's right to a prior hearing before opera-tion of a nuclear power plant.

This illegal practice is already carried out under the immediate effectiveness rule.

However, it is rendered even more egregious by the proposed changes to the immediate effectiveness rule, by virtue of the fact that the Com-mission is no longer restricted to consideration of the record in its immediate effectivness review, but is now permitted to con-sider extra-record, ex parte information in making its decision whether to authorize operation before completion of all appeals.

Thus, the Commission forces intervenors to undertake a merits appeal to the Appeal Board, while it decides whether to allow the plant to operate, based potentially on completely differently grounds.

That decision is insulated from review by the Appeal Board because it is not part of the merits case.

Thus, a plant may be allowed to operate, based on non-merits considerations, before the completion of the appeal of the merits decision.

II. TMI-2-Related Requirements The proposed rule would delete from§ 2.764 its instructions to Licensing and Appeal Boards to consider, when reviewing opera-ting license applications, the implications of the Three Mile Island accident.

The Commission claims that these requirements are no longer necessary because "all applicable NUREG-0737 action items are covered by regulatory changes and that a license applicant's compliance with existing regulations is a sufficient response to all applicable TMI-2 accident 'lessons learned.'

4 -

These "lessons learned" have not been adequately incorporated into the Commission's regulations to justify the deleletion of the requirement that they be considered.

Whether or not they are now encoded as regulations, NUREG-0737 requirements are not given the same priority as other regulations.

The NRC Staff continues to negotiate compliance with NUREG-0737 requirements after the issuance of operating licenses.

For instance, at Seabrook, the NRC Staff failed to enforce requirements for installation of a Safety Parameters Display System prior to licensing, and would not have required compliance with that requirement until after the first refueling outage.

Only after an intervenor challenged that practice did the Licensing Board order the completion and installation of the SPDS before full power operation.

In the absence of a clear indication that NUREG-0737 requirements will be accorded the same status as other regulatory requirements, the Commission should continue to require the consideration of TMI-related issues in reviewing operating license applications.

Conclusion The unfairness and procedural impracticality of the Commis-sion's immediate effectiveness rule has been evident to the Com-mission for many years, and is thoroughly described in the "Report of the Advisory Committee on Construction During Adjudication," (The Milhollen Report), NUREG-0646, January 1980.

This proposal does nothing to remedy those problems -- in fact, with one exception, it makes them much worse.

That exception is the case of construction permits, which the Commission exempts

5 -

from the immediate effectiveness provisions.

The Commission should follow the same course for all licensing actions, and rid itself of the illegal and impractical immediate effectiveness rule.

May 6, 1987 Respectfully submitted, u~~

Diane Curran E 11 y n R

• We is s HARMON & WEISS 2 0 0 1 11 S II St r e et N

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20009 (202) 328-3500 Counsel for UCS and NECNP

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Dear Mr. Secretary; Please accept this letter as my comments on several rulemakings. I am commenting in one letter on several rulemakings c:,use the ru l f?mak i ngs are r*e* 1 ated c,,nd thE* sepai-c:, ti c,r, of thr1S<7?

emakings improper ly hides their common, de l eterious effect n the health and safety of the public. The rulemakings and petitions upon which I am commenting in this letter include

1. 52 FR 23 3442 10 CFR Part 2 Issuance or Amendment: Power Reactor License or Permit Following Initial Decision.

2. 52 FR 47 7432 10 CFR Parts 30 etc. Completeness and Accuracy c,*f I n*for*ma ti on..

3. 52 FR 52 8460 10 CFR Part 50 Kenneth G. Sexton and the State of ME; Petitions for Rulemaking; Extension of Comment Period.

4.

10 CFR Part 50 Commission Policy Statement on De~*ferTf?.d Pl ant,~..

5. 52 FR 44 6980 10 CFR Part 50 Licensing of Nuclear Power Plants Where State and/or Local Governments Decline to Cooperate in Dffsite Emergency Planning.

First, I shall discuss each of the above separately.

Secondly, I shall discuss how the sum of these rule changes other rule changes reduce the guarantee of health and safety the public required in the Atomic Energy Act.

1...

The change in the Part 2 regulations embodied in 52 FF: 23 3442 is another demonstration of how the NRC (also known as the agency) is cutting off any chance for intervenors or whistleblowers to affect the licensing process in an effective or timely manner. The agency states clearly how very poorly a subs,.tantiv<?. is:,s.ue t*Jill *faii-in the J.:i.Cf?.n ~,; ing pr*ocess, ".*. th!?

appropriate subject of any judicial challenge to final agency actio n on a stay motion would be the agency's determination to issue or withhold a stay, not the merits fo r which the stay is

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What the NRC (agency) is saying is that no matter how flawed a decision is on scientific grounds, the only appeal of that decision shall concern whether the NRC had the legal power to make that decision. This sort of intransigence on the NRC's part could easily lead to situations which endanger the health and safety of the public on a grand scale.

The following scenario is provided as an example and is not meant to be comprehensive, inclusive or exclusive.

Dangerous conditions were discovered during the construction of Marble Hill, Zimmer and the cancelled WPPSS reactors.

The construction continued even though whistleblowers provided information which showed that the reactor could experience a major accident. If these reactors had been completed and if an intransigent Hearing rd c.~nd Di rec tc,r <Ji-* anted an c,perc:~ ti n<:.1 l :i.cense c:1nywc.1y, ervenors and public: could not appeal on the merits, but only the legalities to make the decision. This could and would happen if this rule came into effect. This rule could and would endanger the health and safety of the public, and this rule would be an invitation for the licensee to cut all corners.

2.

The changes in 52 FR 47 7432 Completeness and Accuracy of Information invite ways and means to avoid any penalty for not meeting the regulation. Specifically, the new 10 CFR 55.6b stc.~te~=:;,

"(-1n.3.pplicant 01-lic<:c'nsee viccl.atei:::, this paragr-aph c:cr,ly i*f the applicant or licensee fails to notify the Commission of information that the applicant or licensee has identified as having a significant implication for public health and safety or common de*fensf2 and <::.ecur* i ty.

11 This sentence makes the applicant or licensee the ultimate judge and jury for his actions. If the licensee or applicant iial ls to identify c::1 "~;ignificc:u,t implic,:1tion," hEi is in tht::~ cl<.,~i::,r held harmless as far as this regulation is concerned. A simple plea of temporary incompetence or failure to manage adequately exempts any licensee or applicant from any violation as far as reporting information accurately and completely no matter how serious the lapse is.

The rule states that only the Applicant or Licensee is liable for violations of non-reporting of significant implications.

Also, the licensee or applicant must have knowledge and identified the implication as significant. The loophole is that if management is not aware of the significant implication, they are not liable. This loophole allows the applicant and license to escape responsibility. As long as the licensee or applicant can put up barriers 50 that information about significant implication cannot get to them, they are held harmless by the rule. This rule ignores the responsibility of management to be informed. That's thE*ii-job.

Incompetence must never be a defense to avoid proper r egulation.

This 10CFR55.6b makes incompetence a proper defense no matter how serious the danger to the health and safety of the public or the common defense and security. This rule would be an invitation to cut all corners since this rule promotes incompetence and deficient management as a defense.

'.:l

• Denial of 52 FR 52 8460 would be a disaster. The nuclear power industry would have little incentive to prepare emergency plans. The public would take the denial to mean that the NRC does not have the public health and safety as a goal.

These two petitions attempt to strengthen the emergency planning in case of a major accident by reassessing the Emergency Planning Zone. New e.1 frc,m Chernc,byl strongly sugg<::~~:-t:~ that thl"~ methodologif:?s-; and lytical techniques used to evaluate the size of the EPZ are ghly questionable. An improperly small EPZ in the event of a major accident would endanger the health and safety of the public much more than an adequate EPZ.

The present inadequate EPZ does endanger the health and safety of the public. Reevaluating the present EPZ in light of the recent Chernobyl data would improve the safety of the public.

The NRC has continues to attempt to reduce the size of the EPZ, which endangers the health and safety of the public. The NRC's attempts to reduce the size of the EPZ invites the licensee to cut all corners as far as emergency planning is concerned.

4.

The only policy that a deferred plant is entitled to is that any attempt at reinstituting construction must meet all the latest safety requirements. Too often deferment or cancellation provides a cover for inadequate quality or other very dangerous 1ditic:ins,.* Not onE*! :i.ot,A o*f,,,\\1101,-J,::1.ncE~ *fc,1-i:'~ny past 1-equirem<~nt

• be forgiven. The reason that the strictest requirements must be invoked for these plants is that many deferred and cancelled r*eac:tors ~,,:c,uld use this 1**c,utei tc, bUl"Y theii... preiblems ~-uch i:,s~

A. South Texas project was rumored to have buried a supernumerary in c:c,nc:r- <:'*te.

B. WPPSS had innumerable construction difficulties.

C. Zimmer admitted to many construction difficulties prior to Cc:tl"lC:fs?l latic,n.

• -.. 3*-*

The NRC must handle resumption of construction in deferred and cancelled plants sternly. Any but the sternest handling of these plants when they attempt to resume construction is an invitation by the NRC for the licensee or applicant to cut corners. Cutting corners on the construction of a nuclear power plant will endanger the health and safety of the public. A simple but effective policy for deferred and cancelled plants should include a statement that the NRC will view with extreme prejudice any restart of construction on a deferred or cancelled plant.

c::*

,._J" Now I shall discuss the most problematic rule change, 52 FR 44 6980 Licensing of Nuclear Power Plants Where State and Local ernmF2nts DecJ.:i.nE,* tc:, Coop<*?'f"ate in D*f*fisite Eme*r*qf2ncy Planninq.

The Emergency Plan can be likened to lifeboats for passengers a luxury liner.

While ocean going vessels are generally safe, and while passenger vessels must meet very high standards, ships have sunk. The Unsinkable Titanic comes to mind.

The same can be said about major accident at nuclear power plants. Unlikely accidents have occurred. There have been few meltdowns: LS-1, Chernobyl, TMI#2, Fermi. Nonetheless, residents around a nuclear power plant have as much right to an adequate emergency plan as passengers have a right to a seat on a lifeboat. Commissioner Asselstine has pointed out several of the ways that the rule eliminates the public's right to an adequate emergency plan. The proposed rule also invites the licensee or applicant to cut corners and to endanger the health and safety of the public with an inadequate emergency plan. An inadequate emergency plan will endanger the health and safety of the public in the event of a meltdown and melt thru.

CDNCLUSICJN The actions of the NRC have been and continue to be an obvious invitation to licensees and applicants to cut corners.

Cutting corners for the sake of profitability and convenience reduces or eliminates the protection the health and safety of the public: 1-equir*ed by the atc,mic enei-~

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• 87 APR 20 Pl2 :04 Georgia Power LT. Gucwa Manager Nuclear Safety and Licensing OFFIC[ :::, * ::r * *,\\,-.

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Apri l 14, l 987 Secretary of the Commission U. S. Nuclear Regulatory Commission Washington, D. C.

20555 ATTN : Docketing and Service Branch

Dear Mr. Chilk:

Georgia Power Company Comments On Proposed Amendment to 10 CFR Part 2:

Power Reactor License or Permit Following Initial Decision rhe sourhern elecrnc sys/em SL-2247 0188U On February 4,

1987, the Nuclear Regulatory Commission (NRC) published a notice of a proposed rule which would amend its "immediate effectiveness rule, 11 10 CFR Section 2.764.

The proposed rule would amend existing regulations which specify when a full-power license can be issued to an applicant following an initial adjudicatory decision.

Georgia Power Company is an electric utility serving consumers throughout the state of Georgia and holds NRC operating licenses for the dual unit Edwin I. Hatch Nuclear Plant and the Vogtle Electric Generating Plant (Unit 1).

In addition, Georgia _ Power holds a construction permit for Unit 2 of the Vogtle Electric Generating Plant and, therefore, has a significant interest in this rulemaking.

As a general proposition, Georgia Power applauds the Commission's initiative to simplify and clarify the existing immediate effectiveness rule and delete provisions emanating from NRC regulatory policies which have now been completed.

Consequently, Georgia Power supports the intent of the proposed rule.

Georgi a Power al so has some suggestions to further clarify the proposed rule as set forth below.

The proposed rule's elimination of an affirmative Commission determination that an initial Licensing Board decision should become effective as a precondition to full-power license issuance and, instead,

providing for the Commission's supervisory review of contested matters reflects good regulatory practice (proposed rule 10 CFR subparagraph 2.764(e)).

This review approach, in most instances, will streamline the licensing process and shorten the duration of Commission review.

Georgia

Georgia Power.,,\\

U. S. Nuclear Regulatory Commission ATTN: Docketing and Service Branch April 14, 1987 Page Two Power requests an additional clarification to this particular provision.

Georgia Power suggests that proposed subparagraph 2.764 (e)(3) be bolstered so that the Commission's supervisory examination of uncontested issues be initiated as soon as reasonably practical.

The current proposed subparagraph 2.764(e)(3) implies that timely notification of the Commission of uncontested issues by the Director of Nuclear Reactor Regulation is tied to the date upon which a facility is anticipated to be ready for operation above 5% of rated power.

It appears to Georgia Power that material, uncontested issues should be brought to the Commission's attention at an earlier point in time in order to assure timely resolution.

That is, the NRC and an applicant have a mutual interest in addressing uncontested matters as soon as i denti fi ed in order to avoid regulatory delay or missallocation of the agency's resources.

With respect to Commissioner Bernthal 's question of whether the Commission should continue its past practice of holding open meetings just prior to full power license issuance, Georgia Power has several observations.

First, the proposed rulemaking does not preclude such

meetings, nor limit the Commission from addressing any license issue brought before it in accordance with the Commission's procedures.

Second, the licensing process itself provides substantial and adequate public participation.

In the past, the open meetings have served as an opportunity for intervenors to raise,

again, previously adjudicated issues.

Such events waste the Commission ' s time and regulatory resources, as well as unfairly raise decided issues for media attention.

Licensees, correctly recognizing that the contested issue has been resolved, avoid direct rebuttal.

The media, in turn, perhaps not having tracked the entire licensing proceeding, occasionally construes the resolved issue as a significant, new matter.

In short, if open meetings are to be continued as a matter of policy, their scope and structure should be delineated in order to avoid the appearance of an adjudicatory proceeding.

Again, Georgi a Power appreciates the opportunity to comment on the proposed rule.

Comparable to the Commission's initiatives on standardization, this rulemaking reflects an appropriate desire to improve the regulatory role of the Commission.

KWW/jhu 0188U Sincerely, L. T. Gucwa

Georgia Power, \\

U. S. Nuclear Regulatory Commission ATTN: Docketing and Service Branch April 14, 1987 Page Three c:

Georgia Power Company Mr. J.P. O'Reilly Mr. R. E. Conway Mr. J.T. Beckham, Jr.

Mr. G. Bockhold, Jr.

GO-NORMS 0188U Nuclear Regulatory Commission Dr. J. N. Grace, Regional Administrator Mr. J. F. Rogge, Senior Resident Inspector - Vogtle Mr. P. Holmes-Ray, Senior Resident Inspector - Hatch Mr. G. W. Rivenbark, Licensing Project Manager - Hatch Ms. M. Miller, Licensing Project Manager - Vogtle

Secretary Lll,UET fillMBER P*

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~ APR 20 PS :55 OFFICE :;** :,.,,.t.J;.,i,,*

DOCKET ING '< su~v !Cf.

BRANCH U.S. Nuclear Regulatory Commission Washington, D.C.

20555 Attention:

Docketing and Service Branch

Dear Sir:

Re:

NRC proposal entitled "Issuance or Amendment; Power Reactor License or Permit Following Initial Decision," 52 Fed. Reg. 3442-47, February 4, 1987)

On February 4, 1987, the Commission published for comment a proposal to amend 10 CFR 2.764, a rule commonly known as the "immediate effectiveness rule."

The Atomic Industrial Forum's Lawyers Committee has reviewed the proposed rule.

The Committee has previously filed comments on this rule on several different occasions (see Attachment 1) and takes the same position here as in those comments.

With respect to power reactors, we favor a complete reinstatement of the immediate effectiveness rule as it existed prior to its suspension in 197 9.

We appreciate the opportunity to provide these comments.

LLH:als

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History of AIF Lawyers Committee Comments on "Immediate Effectiveness Rule"

1.

Letter dated January 30, 1979, in response to request for public comments on Study of Nuclear Power Plant Construction During Adjudication, 44 Fed. Reg. 33883 (June 13, 1979).

2.

Letter dated July 7, 1980, in response to Notice of Possible Amendments to "Immediate Effectiveness" Rule, 45 Fed. Reg. 34279 (July 7, 1980).

3.

Letter dated May 1, 1981, in response to Notice of Proposed Rule on Immediate Effectiveness Rule (Operating Licenses), 46 Fed. Reg. 20215 (April 3, 1981).

4.

Letter dated November 29, 1982, in response to Notice of Proposed Rule on Immediate Effectiveness Rule (Construction Permits), 47 Fed. Reg. 47260 (October 25, 1982).

5.

Letter dated June 25, 1984, in response to Request for Public Comment on Regulatory Reform Proposal Concerning Rules of Practice, 49 Fed. Reg. 14698 (April 12, 1984).

.JU~KEI miMBER R-z BALTIMORE GAS AND ELECTRIC

..)442-)

CHARLES CENTER* P. 0. BOX 1475

• BALTIMORE, MARYLAND 21203 JOSEPH A. TIERNAN VICE PRESI D ENT NUCLEA R E N E R GY Secretary of the Commission U. S. Nuclear Regulatory Commission Washington, DC 20555 April 14, 1987 ATTENTION: Docketing and Service Branch OCK~TF.O U5NRC

'87 APR 7 P2 :54 OFFICE OF 5ELkl iARY DOCKETING & SERVICL BRANCH

SUBJECT:

Comments on Proposed Regulation for Issuance or Amendment of Power Reactor License or Permit Following Initial Decision Gentlemen:

The following comments are submitted by the Baltimore Gas and Electric Company in response to Federal Register Notice 52 FR 3442, dated February 4, 1987. The Agency proposes to amend its regulations specifying 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 issuance or amendment of a license or permit.

We have reviewed the proposed regulatory change and believe it serves to clarify and simplify the existing rule.

The existing status of initial decisions warrants such clarification, plus deletion of some of the cumbersome review processes which were inserted as the immediate result of the Three Mile Island (TMI) incident. As was aptly described in the regulatory preamble, the additional Commission reviews superimposed on the licensing process, in the immediate wake of TMI, have subsequently been resolved by means of other regulatory initiatives.

The revised procedure is, therefore, a significant improvement over existing practice.

Other changes which should assist the overall efficiency of reactor licensing would include removal of the unnecessary formal pronouncement, regarding the Director's findings, preceding ultimate license issuance. In addition, separating the Commission's ongoing investigatory role from adjudicatory licensing proceedings can only serve to simplify both processes and to significantly sharpen the issues in a given licensing hearing. One of the major problems for licensing in recent years has been the occurrence of excessively complicated hearings which tend to defuse rather than focus attention on the issues of genuine importance. This change should tend to alleviate this deficiency.

p 2.l. 1'037 Acknowledged by card. *****,-n-rr"' -

U.S. NUC / R. r 1 !I.' y, '

OMMISSIOH DOCk TiN -

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Docketing and Service Branch April 14, 1987 Page 2 Requiring the filing of a motion, for purposes of obtaining a stay of license issuance, forces an adverse party to clearly identify and formally establish the legal and regulatory grounds for securing this type of relief, which again should assist in focusing upon the real issues. In addition, the proposed regulation limits the avenues and focal points for judicial review of initial decisions, thereby imposing greater discipline upon such legal challenges to those complicated regulatory proceedings.

The following proposed changes are also beneficial. Specifically, that the Director keep the Commission informed as to the timing of full-power operation capabilities of ongoing licensing cases; and, that the suspension or postponement of a licensing board decision by the Commission be supported by a written statement of the reasons for same, and that such suspension or postponement be limited as to time

• Based on the above considerations, we encourage the NRC to adopt the proposed regulation. Should you have questions regarding our comments, we would be pleased to discuss them with you.

JAT /JPB/dlm cc:

D. A. Brune, Esquire J. E. Silberg, Esquire R. A. Capra, NRC S. A. McNeil, NRC J. M. Allen, NRC T. Foley/D. A. Trimble, NRC Very truly yours,

~~

William G. Counsil Execu1ive Vice Presidem Mr. Samuel J. Chilk 1UELECTR/C Attn:

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

20555

SUBJECT:

PROPOSED RULE :

ISSUANCE OR AMENDMENT; POWER REACTOR LICENSE OR PERMIT FOLLOWING INITIAL DECISION (52 FED. REG. 3442 (FEBRUARY 4, 1987))

Dear Mr. Chilk:

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fT1 r::J TU Electric has reviewed the above-referenced proposed rule with respect to the "immediate effectiveness" of power reactor license initi al decisions.

We conclude that the revision would adequately define the roles of the Commission and Staff, and clarify the rights and obligations of the parties, regarding the issuance of such licenses upon a favorable initial decision on contested issues.

We recommend that the proposed rule be adopted as written.

We request, however, that the Commission clarify that review functions assigned to the Commission by 10CFR

§ 2.764 are not delegated to the Appeal Board by 10CFR §2.785.

The recent revision to Section 2.785 (52 Fed. Reg. 2993 (January 30, 1987)) could be interpreted, if applied literally, to provide for such delegation.

We believe such a result was not intended.

)i~J RDD/ef c - Mr. E. H. Johnson - Region IV Mr. D. L. Kelley, RI - Region IV Mr. H. S. Phillips, RI - Region IV W. G. Counsil 400 North Olive St reet L.B. 8 1 Dallas, Texas 7520 I Ackn \\11..,,

APR 1 "5 1987

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LEBOEUF, LAMB, LEIBY 8c MACRAE (52FJ!,3442)

A PA RTN ERSH IP INCLUDING PROFESSIONAL CO RPORATION O OCKETEO 1333 NEW HAMPSHIRE AVENUE USNHC WASH I NGTON, DC 20036 (202) 45 7 - 7 500

• s7 APR -9 P 4 :02 T ELE X: 4 40 27 4 FACSI M I L E : 2 0 2-457 - 75 11 NEW Y ORK, N Y SALT LA KE CI T Y, UT RALE I GH, N C LE BOE UF, LAMB, LEIB Y a M AC RAE (UC}fFICE,;*- :.r vi.:,_i f..i*.

LON D O N, E N GLAND OOCKET !t'Ci * ~t..:*r.r SAN F RA N CISC O, C A L OS ANGE LES, CA Samuel J. Chilk, Esq.

Secretary U.S. Nuclear Regulatory Commission Washington, D. C.

20555 April 6, 1987 Re:

Proposed Revision of 10 C.F.R. § 2.764

Dear Mr. Chilk :

8HAN vl-i BO S TO N, MA SOU T H P OR T, C T NEWA RK, N J ED I S O N, N J JAC K SO NVILL E, FL On February 4, 1987, the Commission published for comment proposed revisions to 10 C. F.R. § 2.764, governing the immediate effectiveness of decisions by the Atomic Safety and Licensing Board concerning the issuance of operating licenses.

52 Fed. Reg. 3442.

As attorneys representing a number of utilities involved in the Commission ' s licensing and regulatory process, we wish to offer comments in response to the Commission ' s notice.

The proposed revisions would greatly simplify the Commission ' s current regulations concerning the immediate effectiveness of operating license initial decisions and should serve to insure timely completion of Commission review.

We support the Commission ' s effort in this regard.

We believe, however, that the Commission's proposed revisions can and should be carried further.

Specifically, we recommend that subsection (e ) be deleted from the new rule.

Proposed§§ 2. 764 (a) (3) and (b ) (3) provide sufficient authority for Commission review prior to immediate effectiveness when special circumstances dictate such review.

In the absence of special circumstances, the Commission should not routinely review operating license proceedings, but should permit an initial decision approving the issuance of a full-power license to become immediately effective.

Acknowbd[.'::i' by AP

... 5 1987

• *

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• Samuel J. Chilk, Esq.

April 6, 1987 The Commission has noted that all actions necessary to implement the "lessons learned" from the accident at Three Mile Island have now been completed and has properly determined to eliminate references to those requirements from§ 2.764.

The Commission's concern about "lessons learned" initially prompted its departure from immediate effectiveness in 1979.

Now that the Commission's concern has been satisfied, a return to the pre-accident practice is appropriate.

There is no need for the Commission to conduct an individual review of each operating license prior to full-power operation.

The Commission has significant generic issues to deal with; it should not be distracted by reviewing individual licensing decisions in the absence of special circumstances.

While we believe that the provisions of subsection (e) for routine Commission review should be eliminated, the Commission may wish to retain the language of subsection (e) (4), with appropriate modification, to indicate the procedure that it will follow if it finds a suspension of effectiveness to be required by special circumstances in accordance with subsection (a) (3) or (b) (3).

Commissioner Bernthal has separately requested comment on the desirability of holding a public meeting to discuss whether or not an operating license should issue.

The elimination of subsection (e), as recommended above, would dispense with the practice of holding public meetings.

Even if subsection (e) is adopted, we believe that the proposed new procedure for Commission review is superior to the practice of holding a public meeting.

Our experience has been that such meetings generate more heat than light and provide little useful information to the Commission.

Commission review of operating license decisions is essentially technical and can be conducted as well--if not better--without public debate.

The Commission may, of course, nevertheless elect to hold a public meeting in an individual case where special circumstances exist or where the Commission believes that the public interest would be furthered by an open meeting.

In conlusion, we reiterate our support for revision of the immediate effectiveness rule and urge the Commission to return to its pre-1979 practice and permit prompt issuance of full-power operating licenses based upon a favorable initial Samuel J. Chilk, Esq.

April 6, 1987 decision on contested issues and favorable findings by the Director of Nuclear Reactor Regulations on uncontested issues.

Sincerely, LeBOEUF, LAMB, LEIBY & MacRAE DUKE POWER LEOAL DEPARTMENT P. 0. Box 33180 S TEV E C.G RIFFITH,JR.

G EORGE W. F ERG U SO N, J R.

L EW I S F. CAM P, J R.

RAY MOND A. JO LLY, JR.

W ILLI A M L A R RY P O RTER W. WA LLACE GREGORY, J R.

JO HN E. L A N SC HE CHARLOTTE, N. G. 28242 28

'87 APR -8 Pl2 :

R O N A LD V S H EA RIN W. EDWARD P OE, J R.

ELLEN T. R UF F AL BERT V. C ARR, J R.

ROB E R T M. B ISAN AR W ILLIA M J. B OWM AN, JR.

RO N A LD L. G I BSO N JEF F R E Y M. T RE PEL JEFFER SON D. G RIFFITH, m O F" COUNSE L :

WI LLI A M I. WARD, JR, Mr. Samuel J. Chilk Secretary of the Commission April 6, 1987 United States Nuclear Regulatory Commission Wash i ngton, D.C.

20555 Attention :

Docketing and Service Branch Re:

Notice of Proposed Rulemaking Issuance or Amendment:

(7 0 4 ) 3732570 Power Reactor License or Permit Following Initial Decision 52 Fed. Reg. 3442

Dear Mr. Chi 1 k:

Duke Power Company (Duke) hereby submits the following comments on the captioned proposed rule.

Duke has no general objection to rev1s1on of the 11 Immediate Effectiveness 11 rule; however, in Duke's view both the Commission and the entities that participate in proceedings before it would be better served if the Commission would simply return to its prior practice.

In short, Duke favors reinstatement of the rule as it existed prior to its suspension in 1979 following the TMI accident.

Notwithstanding that, however, Duke offers specific comments on the proposal.

At present 10 C.F.R. §2.764(b) requires the appropriate Director to issue, other requirements being satisfied, the relevant permit, license, or amendment within ten (10) days of the time an Atomic Safety and Licensing Board issues an initial decision on issues relevant to the application.

The new rule proposes doing away with that requirement in favor of a statement that, following such an initial dec.ision, the Director 11 promptly shall issue 11 a permit, license, or amendment.

Duke is opposed to that change, and believes i t is neither justified nor warranted.

/

The ten-day requirement assures an applicant or licensee that, once the litigation process is complete, the Staff of the Nuclear Regulatory Commission is obligated to issue, by a date certain, the license or amendment sought.

The proposed amendment to that requirement is said to be necessary to provide 11another explicit recognition that [the appropriate Director must make] certain additional findings... [as] a prerequisite to license issuance even after entry of an initial decision that Acknowled_g-ed by card.*** A~Rl.:. r'Sl.w:-

,ostmark (opies

• resolves in the applicant's favor all contested issues raised in an adjudicatory proceeding." 52 Fed. Reg. 3443, col. 2.

Duke realizes, of course, that litigation associated with an operating license or an amendment to an operating license is but one step in the path to issuance.

However it is no surprise that, notwithstanding issuance of an initial decision, the Director is required by statute and regulation to make appropriate additional findings before license or amendment issuance.

Duke does not believe there is a need to amend the Commission's immediate effectiveness rule to provide "explicit recognition"

• of that basic requirement of law.

Even if there were such a need, there appears to be little discernible nexus between that recognition and removing from the Commission's rules a requirement that the Staff act by a time certain to issue a license or amendment.

If the ten-day requirement is removed, there is a real possibility that the Staff might delay review of issues until after litigation is complete and thereby delay issuance of a license or amendment.

It would appear that, as litigation associated with approval of a license or amendment application is the most time-consuming part of the review process, the Staff can, during the litigation process, complete the reviews necessary to support whatever finding must be made so that the license or amendment can issue ten days after the decision.

That process has been in place -- and has worked well -- for many years during periods of much greater licensing activity than the NRC is now engaged in.

The 11 ten-day 11 requirement was put into place by the Atomic Energy Commission, the NRC's predecessor agency, and has been in effect at least since 1971.

(See 36 FR 828, Jan. 19, 1971).

It has remained in effect through seven separate revisions of the immediate effectiveness rule. ~/ Absent some strong showing of a need for the proposed change -- which showing is absent in the proposed rule --

Duke believes the Commission cannot justify discarding the requirement.

In

sum, Duke urges the Commission to return to the immediate effectiveness rule as it originally existed.

In the alternative, for the reasons set forth above, Duke asks the Commission to retain the 10-day requirement.

AVCjr/clr Sincere Albert Assistant

• I 36 FR 820, Jan. 19, 1971, as amended at 45 FR 74711, Nov. 12, 1980; 46 FR 13978, Feb. 25, 1981; 46 FR 28628, May 28, 1981; 46 FR 47765, Sept.

30, 1981; 47 FR 2305, Jan. 15, 1982; 47 FR 40536, Sept. 15, 1982; 48 FR 52286, Nov. 17, 1983.

uvn~, ltCJltatN

~ -~

A 449 t!UCLEAR REGULATORY COMMISSION 10 CFR Part 2

~ OG:KID-Qj J USNfC

'87 APR -7 P 4 :47 OFF/Cf. :-;; :.

l Issuance or Amendment of PO\\"er Reactor Li cell~~KETJ~r&:s'i-f<~/(/

or Permit Following Initial Deci sion:

NCH Extension of Co~ment Peri od AGENCY:

Nuclear Regulatory Commission.

ACTIOt::

Proposed rule; exterision of comment period.

SUMMARY

On February 4, 1987 ( 52 FR 3442), the ~RC published for public comment a proposed rule to revise its procedures that specify when a license, rermit, or amendment can be issued following an initial adjudicatory decision by the presiding officer in favor of authori zing the issuance or amendment of a license or permit.

The comment period for this proposed rule is to expire on April 6, 1987.

The law firm of Shaw, Pittman, Potts & Trowbridge, on behalf of the Uti li ty Nuclear Waste Management Group, has requested a thirty-day extension of the comment period.

The request is granted.

The extended comment period now expires on May 6, 1987.

DATES:

The comment period has been extended and now expires May 6, 1987.

Comments received after this date will be considered if it is practical to do so but assurance of consideration cannot be given except as to corrunents received before this date.

ADDRESSES:

Send written comments or suggestions to the Secretary of the Commissi on, U.S. Nuclear Regulatory Corrunission, Washingt on, DC 20555, Attention : Docketing and Service Branch.

Copies of comments received may be examined at the NRC Public Document Room, 1717 H St reet, NW.,

\\ashi ngt on

, DC.

2

[7590-01]

FOR FURTHER INFORMATION CONTACT:

Paul Bollwerk, Senior A:torney, Office of the General Counsel, U.S. ~;uclear Re9ulatory Commission, \\1iashington, DC Z0555, telephone (202) 634-3224.

Dated at Washington, DC, this

/ /i b ___:__. day of April, 1987.

F0r t he Nuclear Kegulatory Commissior.

-~7tc#~

{oh~ C. H;?e

/

Assistant Secretary of the Commission

JU(.;l\\tl l'fUMtttK PR iBQfOSED &11£

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(.j-;t_ F~ ~,¢4£;}

NEWMAN & HOLTZINGER, P. C.

OOCKETE JACK R. NEWMAN JOHN E. HOLTZINGER, JR.

HAROLD F. REIS 1615 L STREET, N. w. USNRC WILLIAM E. BAER. JR.

MAURICE AXELRAD WASHINGTON, D.C. 20036 J. A. BOUKNIGHT, JR.

PAUL H. KECK GEORGE L. EDGAR KATHLEEN H. SHEA DOUGLAS G. GREEN KAROL LYN NEWMAN JOHN T. STOUGH, JR.

J AMES B. VASILE MICHAEL A. SAUSER ALVIN H. GUTTERMAN EDWARD J. TWOMEY KEVIN P. GALLEN THOMAS A. SCHMUTZ MICHAEL F. HEALY ROBERT I. WH ITE SCOTT A. HARMAN STEVEN P. FRANTZ DAVID B. RAS KIN 202 - 955 - 6 ~

0 APR -6 P2 :17 ROBERT LOWENSTEIN HERBERT B. COHN ERNEST C. BAYNARD, Il l O,. COU NSEL Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C.

20555 Attn:

Docketing and Service Branch April 3, 1987 DOUGLAS L. BERESFORD JADE A. EATON JANET E. B. ECKER MERLE W. FALLON LOIS R. FINKELSTEIN*

BRIAN R. GISH J ILL E. GRANT ANDREW N. G REENE*

PAMELA A. LACEY FRANK R. LINDH KEV IN J. LIPSON KATHLEEN M. McDERMOTT JEFFREY B. MULHALL*

ERROL R. PATTERSON JANE I. RYAN PAUL J. SAVIDGE*

DONALD J. SILVERMAN JACOLYN A. SIMMONS ROBERT H. SOLOMON JOSEPH E. STUBBS NANCY A. WHITE*

ROBIN T. WIGGINS*

• NO T ADM ITTED IN 0.C.

RE:

Proposed Revisions to 10 CFR § 2.764, the "Immediate Effectiveness Rule 11 52 Fed. Reg. 3,442 (February 4, 1987)

Dear Mr. Chilk:

On February 4, 1987, the NRC proposed to amend Section 2.764 of its Rules of Practice, with respect to certain procedures regarding issuance or amendment of reactor construction permits and operating licenses, authorization to construct or operate independent spent fuel storage installations and certain authoriza-tions regarding high-level radioactive waste storage facilities.

52 Fed. Reg. 3,442 (February 4, 1987).

These comments, which are being filed on behalf of Houston Lighting & Power Company, address only the proposed changes that are related to the issuance of operating licenses for power reactors.

We suggest that the Commission not adopt the procedures relating to reactor operating licenses (Subsection 2.764(e))

because the adoption of these requirements as a formal rule is potentially counterproductive and is unnecessary.

Since there are few pend-ing applications for operating licenses, the rules would have limited application.

On the otherhand, there is a risk that the rules would result in unwarranted and unintended delay in license issuance without any countervailing benefit to the public.

As recognized in the Supplementary Information accompanying the proposed rule, an initial decision in an operating license

Po*-

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.~~

/11)5, j;/@dC

NEWMAN & HOLTZINGER, P. C.

Secretary of the Commission April 3, 1987 Page Two case "only serves to resolve those issues pending before the presiding officer."

Thereafter, the Director of Nuclear Reactor Regulation makes required findings on any matters not pending before the Licensing Board and, if the findings are favorable to the applicant, issues the license (cf. 10 CFR § 50.57).

Thus, the current provisions of Section 2.764 do not affect the author-ity of the Director to issue operating licenses in uncontested cases.

Although perhaps less clear, it also appears that where an initial decision has become final agency action, and is not subject to further Commission review, the authority of the Director to issue an operating license is not affected by Section 2.764.

Under the existing regulations, although the Director has the authority to issue operating licenses up to rated power in such circumstances, the Commission nevertheless retains its inher-ent authority to review the Director's findings on uncontested matters and to supervise the issuance of operating licenses.

This supervision may, at the Commission's discretion, include public meetings such as have been conducted in connection with the recent issuance of full power licenses.

No revision of the rules is necessary to continue this practice.

The proposed rule, by codifying the Commission's practice of reviewing the Director's findings on uncontested matters, would establish new formal procedural requirements for the issuance of operating licenses.

Under paragraph (e)(2), a license to operate above five percent of rated power could not be issued until after written notification from the Commission of completion of its review of uncontested matters.

Paragraphs (e)(2 ) and (e)(3) would control only the actions of the Director and the Commission, and would not establish stan-dards or otherwise provide any guidance to members of the public.

In such circumstances an agency is not required to publish its procedures in the Federal Register or adopt them as formal Rules of Practice.

See Chevron Oil Co. v. Andrus, 588 F.2d 1383, 1388 n.8 (5th Cir. 1979).

Thus, it is unnecessary for the Comrrission to restrict its flexibility by adopting this rule.

However, if the Commission does adopt the rule as proposed, there is a risk that in a suit contesting the issuance of an operating license, a court may question the adequacy of the Commission's compliance with the rule.

Consequently, license issuance could be subject to unwarranted delay.

In addition, it should be noted that paragraph (e)(2) appears to be inconsistent with paragraph (e)(4).

Paragraph (e)(4) would provide that "[n]o suspension of the effectiveness of a Licensing Board's initial decision or postponement of the Director's issuance of a license... will be entered except in writing with a state-ment of the reasons."

We believe this provision is clearly appro-priate.

However, paragraph (e)(2) would provide that the Director

NEWMAN & HOLTZINGER, P. C.

Secretary of the Commission April 3, 1987 Page Three may issue a license for operation above five percent of rated power only after receipt of written authorization from the Commission.

Thus paragraph (e)(2) appears to require that in the absence of written direction from the Commission to the contrary there will be an automatic postponement of license issuance, whether or not the Commission has issued a written statement of the reasons for such postponement.

We appreciate the opportunity to provide these comments.

Respectfully submitted,

~II~

Alvin H. Gutterman

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Telephone (617) 872-8100 TWX 710-380- 7619 YANKEE ATOMIC ELECTRIC COMPANY

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"'Y~KEY FYC 87-010 GLA 87-068 1671 Worcester Road, Framingham, Massachusetts 01 701 April 2, 1987 o C*

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-.J Docketing and Service Branch Comments on the Proposed Rule on Issuance or Amendment of a Power Reactor License or Permit Following an Initial Decision (52FR3442)

Yankee Atomic Electric Company (YAEC) appreciates the opportunity to comment on the subject proposed rule change to 10CFR Part 2.

YAEC owns and operates a nuclear power plant in Rowe, Massachusetts.

Our Nuclear Services Division also provides engineering and licensing services to other nuclear power plants in the Northeast, including Vermont Yankee, Maine Yankee, and Seabrook.

The AIF is filing comments on the subject proposed rule change.

We are an active member of AIF and endorse its comments.

We would also like to offer the following.

We agree with the Commission that a license applicant's compliance with existing regulations is a sufficient response to all applicable TMI-2 "lessons learned," and as such, references to the TMI-2 accident and consideration of its implications on existing regulations and policies during the adjudicatory process are no longer relevant nor material.

Deletion of such references should be undertaken expeditiously.

In conjunction with the proposed requirements on Commission review prior to issuance of an Operating License (OL) above five percent rated power, we foresee such additional requirements as being a potential vehicle for lengthy delays.

We, therefore, reiterate AIF's comment which urges the Commission to reinstate the immediate effectiveness rule as it existed in 1979 prior to the TMI accident.

Reinstatement of that rule will result in an OL issuance process that does not allow for unjustified, lengthy delays, yet provides for the necessary reviews during the stage between issuance of the ASLB initial decision and actual issuance of the OL.

Nonetheless, if the Commission feels compelled to promulgate, as proposed, special immediate effectiveness requirements for issuance of an OL above five percent rated power, we urge APR 1 3 1987 **"

Acknowtedged by cartf ~-,:. i I,1., 1,,'ii I 1 **

I IC J U S. NUCLE.\\R.,

• 1,:I0N DOCKt.l JN...,

OFFICE. V Postmark CQJJI ::; R Add CL Spec1<.1 L.,

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I

United States Nuclear Regulatory Commission Attention:

Docketing and Service Branch April 2, 1987 Page 2 that expeditious review of the ASLB initial decision and noncontested issues that are pertinent to power escalation above five percent be guaranteed by including in the rule a specific time limit, such as ten working days, for Commission review.

Such a limit will preclude the situation in which the time period following the ASLB initial decision is inappropriately used as a forum to address "special" Commission interests.

We further recommend, that given the promulgation of such requirements for issuance of an OL above five percent power, that the Commission clarify the meaning of the term "license for operation of a nuclear power reactor above five percent of rated power" to delineate that such a license refers to that one initial stage of power escalation from an initial low power operating license to one above five percent.

We believe this is needed to ensure that a license renewal process does not fall in the subject category.

Very truly yours, D. w. Edwards Director of Industry Affairs

~COLOGY/ALERT BOX 621 BLOOMSBURG 17815 E Nemet hy, Se c ' y Sec ' y -

NRC Wash, DC 20555 llllldVJl JIUWIO'" PR

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..J-¢,¢L) pr 2 - 87nrocedure fo r Re : Proposed rule -

Amending/Li cense or Permit following initial de-cision Fed Reg Feb 4 p 3442

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A TT : DOCKETING c,. SERVICE BRANCH

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u c-0 Gentlemen=

This gummy little pudding deserves a special niche magazine ' s Dent of Utter Confusion.

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After wading thru it in gumboots for the third time, it apnears to us its main thrust is to speed the granting of construction permits and full-power licensing by circumventing citizen parti-cipa tion in the prmcess.

We offer our commen d tions to Commissioner Bernthal for his Addi-tional Views on the subject.

He got right to the meat of the coco-nut.

het ier the proposed rule would "reduce the potentic:11 for admini-strative delays inherent in the existing process " or not, we feel this is just another in a se ries of ca~mulated moves to insulate the NRC from the public you ' re mandated to protect.

The utilities will no doubt love it.

But in the long run, we feel t he public health and safety, and common defense and security, will be undermined by it.

APR 1 1987

'Xcfnrowledged by card.*.** I I **** UllC!--~

U. S. NUCLEAR REGU..

DOCK _TING & 5 Ofr ICE OF T OF TH E e, C

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TELEX/CABLE 89*2693 (SHAWLAW WSH)

TELEPHONE (202) 663*8063 JAY E. SILBERG, P.C.

~~PR-tZ (52P£..J442}

SHAW. PITTMAN, POTTS & TROWBRID *t.,~ VcL~-'

A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATION S 2300 N STREET, N. W.

WASHINGTON, D. C. 20037

'87 APR -3 P 5

• n 1JRGINIA OFFICE

,M:il FARM CREDIT DRIVE MCLEAN, VIRGINIA 22102 (703) 790*7900 OFFICE Lf ~- t. \\.,,-,l,t.,i {

TELECOPIER DOCK£ Ti

• Ci,'\\ *;~tr ffi~! 223-3760.s. 223-3761 April 3, 1987 3RANC~

ZA;:-;:;-AIL (202) 775-0338 Paul Bollwerk, Esquire Office of General Counsel U.S. Nuclear Regulatory Commission Washington, D.C.

20555 Re:

Proposed Rule: Issuance or Amendment; Power Reactor License or Permit Following Initial Pe.c;i_s;iop_ C.5.2 feo. ;Reg_. _.3:4:4.2J......

Dear Mr. Bollwerk:

Pursuant to our phone conversation of March 31, 1987, this is to confirm my request on behalf of the Utility Nuclear Waste Management Group ("UNWMG") for a thirty day extension in the comment period on the above-captioned rule.

The additional time is needed so that we may have further discussions with UNWMG and the U.S. Department of Energy on the need for, and the substance of comments relating to the Part 72 licensing aspects of the proposed rule.

Thank you for your attention.

Sincerely, il~

JES:dj

NOIS

,1 L :JO lO

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March 21, 1987

("OCRE")

COMMENTS OF OHIO CITIZENS FOR RESPONSIBLE ENERGY, INC.

ON PROPOSED RULE ON IMMEDIATE EFFECTIVENESS OF INITIAL DECISIONS, 52 FED REG 3442 (FEBRUARY 4, 1987).

-a, IWt 25 P3 :\\0 OCRE agrees thot the Pl"'esen!:: immediate effecti v eness r-1.J~~,e.c1/2f St" ~~i/i. ~_Y 2.n need of simplification and clarificcition.

However, on1\\:fc/ETI G & SE!<VICL 1 n the proposc1l requires comment.

It is states in the Federal BR~NC'"I Register notice (but not explicitly in the text of the proposed section 2.764) that the Commission's immediate effecti v eness review is not subject to ex parte and separation of functions constraints, The commission will also not entertain unsolicited comments from the parties regarding its review.

And, proposed 10 CFR 1. 764 (e) (4) requi*r*es that, should the Commission sLispend the effectiveness of an initial decision, the Commission would take review of the matter sua sponte and conduct further proceedings of its own in accordance with procedures apparently to be established by the commission on a case-by-case basis.

It thus appears that the normal appellate procedure before the Appeal Board would be bypassed,

OCRE believes that it is inconsistent and unfair to suspend the ex ~arte and separation of powers constraints in the commi ssion 's review of contested matters while at the same time prohibiting communications from the parties.

parties except the NRC Staff, which is both o party in the proceedings and the commission's source of information for its r eview.

The commission should not make a decision based on information known onl y to it and the NRC Staff without disclosure to the other parties and giving them an opportunity to comment on or refute this information.

OCRE is also concerned that the Appeal Board, which normally reviews initial decisions of licensing boards, which has the

• t.aff, experience, -

  :ind e x pertise to do so, and has shown a high

~egard for procedural due process in its reviews, would be bypa~seci in favo r o

Commission sua sponte review with ad hoc procedures for participation if the Commission decided to suspend the effecti v eness of a decision.

The Commission, with its broader management responsibilities, simply does not have the resources to serve as an effecti v e appellate trib~nol.

This is the unique function of the Appeal Board, A wiser option woulcl be for the commission, if deciding to suspe nd ef ectiveness, to issue a written opinion explaini ng its concerns which will guide the Appeal Board in its normal review process.

Any party aggrieved by suspension of the decision's effecti veness would have the opportunity to file a motion for expedited Appeal Board review, which, for good cause show n and lack of harm to other parties, may be gr ant ed.

Appeal Board review would ensure a high-quality MAR 2 7 19&7 Acknowle~e.d by card,.....,.,. *,,, -****....-

fJl t. ~(w.~ ~cft)iAroiv c~fX/l;f($$'IOII DCXKETING & SfRVICE SECTION OFFICF ~ F THE SECltETARY OF° r.~ COMMISSION

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appellate decision with appropriate procedural safeguards, i ncludin g preservatio n of the ex parte and separation of powers constrGint:s.

OCRE is concerned about the quality and fairness of the ad hoc procedures which would gov~rn the commission's sua sponte review.

Unfortunately, the current Commission majority has shown disregard for due process in some of its decisions.

A glaring example is Cleveland Electric Illuminating co.

( Perry Nuclear Power Plant, Units 1 and 2), CLI-86-07, 23 NRC 233 (1986), in which the commission majority found allowing the parties to speak for a few minutes at the Commission briefing on full power licensing to be an adequate substit ut e for an adversarial adjudicatory hearing, which the Appeal Board had scheduled in the case but the commission overruled.

It is especiall y for this reason that the Appeal Board should retain its review function, even when the commission has found cause to suspend the immediate effectiveness of an initial decision.

The due process provided by the Appeal Board must not be sacrificed in the name of expediency, Respectfully submitted, Sll=-Cm L. Hiatt OCRE Representative 8275 Munson Road 44060 (216) 25-5-3158

(

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AGENCY:

ACTION:

SUMMARY

J Ul,1\\U ~PR-~

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DOCKETED U::NPC

[7590-01]

'87 J 29 P :

NUCLEAR REGULATORY COMMISSION 10 CFR Part 2 Issuance or Amendment of a Power Reactor License or Permit Following an Initial Decision Nuclear Regulatory Co1T1T1ission.

Proposed Rule.

The Nuclear Regulatory Commission proposes to amend 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 t he issuance or amendment of a license or permit. Changes are proposed to simplify and clarify the existing rule and to delete language in the regulation emanating from Three Mile Island-related regulatory policies, action upon which has now been completed. This proposed rule supersedes two prior proposed rules entitled "Possible Amendments to 1 I1T1T1ediate Effectiveness' Rules," published May 22, 1980 (45 FR 34279), and "Commission Review Procedures for Power Reactor Construction Pennits; Immediate Effectiveness Rule," published October 25, 1982 (47 FR 47260).

DATES :

Co111T1ent period expires __

A..._p_r_i_l_6.....,_1_9_8_7 ______ _

• Comments received after this date will be considered if practicable to do so, but assurance of considera-t ion can be given only for comments filed on or before that date.

2

[7590-01]

ADDRESSES:

Submit written conments to: Secretary, U.S. Nuclear Regulatory C0111T1ission, Washington, D.C. 20555, ATTN:

Docketing and Service Branch.

Hand deliver corrments to:

Room 1121, 1717 H Street, NW., Washington, D.C., between 8:15 a.m. and 5:00 P*!11*

Examine comments received at: The NRC Public Document Room, 1717 H St., NW., Washington, D.C.

FOR FURTHER INFORMATION CONTACT:

Paul Bollwerk, Attorney, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, D.C.

20555, Telephone: 202-634-3224.

SUPPLEMENTARY INFORMATION:

I.

INTRODUCTION Prior to the March 1979 accident at Three Mile Island, Unit 2 (TMI-2), 10 CFR 2.764 authorized the Director of Nuclear Reactor Regulation to issue construction permits, operating licenses, and amendments to such permits and licenses irranediately following the issuance of a favorable Atomic Safety and Licensing Board decision on a pending application without regard to whether an administrative appeal was filed. Shortly after the accident, however, the Commission recognized that the various investigations into the accident were likely,

to result in significant changes in the Commission's regulatory policy and in power reactor licensing procedures, making the previous "irrmediate effectiveness" practice inappropriate.

44 FR 58559 {Oct. 10, 1979).

To ensure that such changes were incorporated properly into the licensing process, the Commission provided in a new Appendix B to 10 CFR Part 2 that no initial decision authorizing issuance of a nuclear power

3

[7590-01]

reactor construction pennit, limited work authorization, or operating license could become "effective," in the sense that the pennit or license may then be issued by the Director of the appropriate NRC staff office, prior to Atomic Safety and Licensing Appeal Board and Co1T111ission "effectiveness" reviews {44 FR 65249 {Nov. 9, 1979)).

In addition, in the new Appendix B, the C011111ission set forth a general statement of policy on the implications of the TMI-2 accident for LiGensing and Appeal Board tnterpretation of regulations and regulatory policy.

Id

• Eventually these revised effectiveness procedures a~d the THI-related guidance were incorporated into the language of§ 2.764 (46 FR 28627

{May 28, 1981)).

On the basis of the experience gained in reviewing operating license decisions subsequent to the TMI-2 accident, the Comnission thereafter revised its practice relating to the effectiveness of operating license initial decisions.

For instance, under current regulations review by an Appeal Board is no longer included as part of_

the effectiveness review procedure for full-power operating license decisions.

10 CFR 2.764(f). Also, prior agency practice applicable to operating license decisions now has been reinstated partially in that decisions regarding fuel loading and low power testing are again immediately effective. Id. 2.764(f)(l) (published at 46 FR 47764 (Sept. 30, 1981)).

In addition to these regulatory changes, the COITU!lission has put forth several rulemaking proposals to revise the existing scheme for the effectiveness of initial decisions regarding construction pennits.

These proposals were designed to deal with a number of concerns,

4

[7590-01]

including whether review of site-related issues in potentially troublesome cases should be advanced before large sums of money are coD!llitted and construction sites are altered irrevocably.

{45 FR 34279

{May 22, 1980) and 47 FR 47260 (Oct. 25, 1982)).

After reviewing again the operation of its current effectiveness provisions and the outstanding rulemaking proposals, the Commission believes that further revisions are appropriate

• II.

PROPOSED REVISIONS TO "It+1EDIATE EFFECTIVENESS 11 RULE A.

General Provisions on Issuance of Licenses and License Amendments Following a Favorable Initial Decision Under existing paragraph {a) of§ 2.764, subject to certain stated exceptions, an initial decision rendered in a fonnal adjudicatory proceeding conducted under 10 CFR Part 2, Subpart G, supportiryg the issuance or amendment of a construction pennit, a construction authorization, or an operating license is i11111ediately effective. The exceptions are (1) an authorization under 10 CFR Part 72 allowing construction and operation of an independent spent fuel storage installation, (2) certain authorizations under 10 CFR Part 60 regarding any high-level radioactive waste storage facility, (3) an authorization regarding issuance of a constr~ction permit or operating license for power reactors under 10 CFR Part 50, (4) any instance when a presiding officer finds that good cause exists why the initial decision should not become i111T1ediately effective, and (5) any special circumstance in which the Co11111ission issues an order to the contrary. Further, except in instances covered by these exceptions, under paragraph {b) of§ 2.764,

5

[7590-01]

the Director of the NRC staff office with delegated jurisdiction over the subject matter of the application is to issue the pennit, license, or amendment within ten days of an initial decision favorable to issuance.

The major substantive changes in§ 2.764 that are now proposed, and that are discussed more fully in section II.B., concern initial decisions relating to construction pennits and operating licenses that are covered in paragraphs (e) and (f) of the current rule.

In addition, some clarifying revisions have been made to the other provisions of the existing rule that require explanation.

The language of paragraph (a) and other portions of the proposed *-

rule have been revised to clarify the relationship between the presiding officer's initial decision and issuance of a license. The proposed rule would indicate that an initial decision only serves to resolve those issues pending before the presiding officer; though a necessary step toward issuance of a license in adjudicated cases, an initial decision does not itself constitute the issuance of a license or an amendment.

The act of issuing a lic~nse or amendment is ultimately within the province of the Director of the appropriate NRC staff office under authority delegated by_ the Contnission. See,~, 10 CFR 2.760a, 50.50, 50.92(a). Such issuance takes place only after the Director has made all the appropriate findings requ_ired by the Atomic Energy Act and agency regulations on the basis of the presiding officer's decision on contested matters and the staff's review of other matters. The provisions of the proposed rule have been revised to emphasize this distinction.

6

[7590-01]

Under the proposed rule, an initial decision by a Licensing Board that resolves all contested issues in favor of an applicant is "irrmediately effective" in the sense that a necessary step toward license issuance has been taken.

But the proposed rule also would add language to paragraph (a) to make it clear that a stay order issued in accordance with§ 2.788 would suspend the effectiveness of any initial decision, thereby blocking license issuance until the stay is lifted.

The proposed rule would continue to indicate that the C011D1ission itself can issue an order suspending the effectiveness of an initial decision.

The Coomission further proposes to make certain cl~rifying changes relating to the other stated exceptions to the general rule in

§ 2.764(a) that an initial decision resolving all issues in favor of authorizing the issuance of a license is irrmediately effective. The rule as proposed continues the existing references to Part 72 and Part 60 proceedings as exceptions to immediate effectiveness under paragraphs (c) and (d). In addition, incorporated into paragraph (d) of the proposed rule is the language of existing§ 2.765 relating to low-level waste disposal licensed under 10 CFR Part 61.

Retaining

§ 2.765 as a separate provision is unnecessarily duplicative.

Under paragraph (b}, a Director's authority to issue a license subsequent to an initial decision will continue to be subject to the existing exceptions as well as an additional exception in paragraph (e),

which sets forth the particular practice relating to a Director's issuance of a ful1-power operating license for a reactor. Existing section 2.764(b) nonetheless has been revised to indicate that license issuance by the Director is to occur promptly after the Director is able

7

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to make the appropriate licensing findings. This reference to the Director's licensing findings is another explicit recognition that certain additional findings are a prerequisite to license issuance even after entry of an initial decision that resolves in the applicant's favor all contested issues raised in an adjudicatory proceeding.

B.

Initial Licensing Decisions Regarding Reactor Construction Pennits and Operating Licenses Under the existing§ 2.764(e)(2), a Licensing Board's initial decision supporting issuance of a construction pennit cannot become effective until an Appeal Board, in accordance with 10 CFR 2.788, decides any stay motion filed or, if no such motion is submitted, makes its own detennination about whether a stay should be granted. The Appeal Board has sixty days within which to make its detennination.

In addition, under§ 2.764(e)(3), an initial decision on a construction pennit cannot become effective until the Corrmission, of its own accord, has reviewed and issued a decision on the Appeal Board's detennination on whether a stay should be granted. This is to be completed within twenty days of receipt of the Appeal Board's decision but, in any event, the initial decision will not become effective µntil the Co1T111ission issues its detennination.

Under the revisions now proposed to§ 2.764, the language of paragraph (e) of existing§ 2.764 would be deleted entirely and paragraphs (a) and (b) would be worded to indicate that ini.tial decisions regardin*g construction permits are excluded from the inmediate effectiveness provision altogether. Although the Corrmission 1s notices

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of proposed rulemaking published in 1980 and 1982 discussed several possible revisions of the existing procedures, the Corrmission does not believe that further consideration of those proposals at this time would be fruitful.

The outstanding rulemaking proposals a~d the comments thereon are dated and would not provide the best foundation for further C011111ission consideration of appropriate regulatory changes. Moreover, there currently are no construction pennit applications pending with the Conmission _nor hav_e any been filed for_ the past several years, making Conmission consideration of the matter somewhat academic.

Nonetheless, given the Conmission's general concern that existing effectiveness procedures need to be revised, retaining the present provision would be misleading and somewhat inconsistent. The Coonnission thus has decided simply to ~ve power reactor constructi_on pennit initial decisions from§ 2.764.

However, the COl11llission has directed the NRC staff to undertake consideration of how the effectiveness of initial decisions on such pennits should be handled in the context of staff's ongoing review-of appropriate licensing procedures for standardized reactor design applications. 1 Under existing§ 2.764(f), an initial decision regarding a license t'o operate a power reactor above five percent rated power cannot become effective until the Corrmission, on its own motion, has issued a decision 11n the absence *of a particular rule, the Conmission could establish effectiveness procedures for construction pennit decisions on a case-by-case basis if necessary. See West Chica3 o v. NRC, 701 F.2d 632, 646-47 (7th Cir. 1982). If circumstances so ustified, the

• procedures could provide for the i1m1ediate effectiveness of an initial decision on a construction permit application.

9

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that a stay of effectiveness is not necessary. Absent such an affinnative Comnission decision, which is to be issued within thirty days of CoD111ission receipt of the Licensing Board's decision, the initial decision will not become effective. The proposed rule does not retain the requirement that the C01T11Jission itself make an affinnative detennination that an initial decision favorable to the applicant should become effective during the period when fonnal review of the initial

. decision is ongoing. Consistent with the foregoing discussion, such initial decisions will become effective i11JT1ediately upon issuance.

Such a decision by itself, however, will not be sufficient to authorize the Director of Nuclear Reactor Regulation to issue a full-power license.

As is indicated in paragraph (e)(l), in the exercise of its inherent supervisory power over proceedings conducted by its adjudicatory boards, see Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 503, 516-17 (1977),

the COl1!11ission will undertake its own supervisory examination of the matters contested before the Licensing Board to detennine if any cause exists for suspending the effectiveness of the Licensing Board's initial decision.

As paragraph (e)(l) indicates, this supervisory examination is to be finished prior to issuance of a license authorizing operation above five percent of rated power, and notification that it has been completed must be received by the Director before license issuance.

While the'conduct of this supervisory examination is a prerequisite to issuance of such a license, the Commission need not reach or announce any affirmative decision on contested matters, 'and generally will not do

10

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so, unless the Commission concludes from the examination that Commission intervention in the adjudicatory process is appropriate.

In the course of its supervisory examination of contested matters the C011111ission intends to consider all pertinent infonnation relating to facility operation, including information on ongoing investigations.

Since this supervisory examination is not in any way a part of the adjudicatory proceeding, the ex parte and separation of functions*

constraints applicable to co1T111unications to the Coomission during adjudications would not be applicable to bar C011111ission consideration of any investigation infonnation. Also, because its supervisory examination is not a part of the adjudicatory proceeding, the CoR111ission will not entertain unsolicited conments or requests from the parties concerning its supervisory examination. Rather, as§ 2.764(e)(l) suggests, any party wishing to stay the effectiveness of an initial decision in order to preclude license i~suance should file a motion with the presiding officer, the Appeal Board, or the C011111i-ssion in accordance with 10 CFR 2.788.

In addition to a supervisory examination of contested issues under proposed§ 2.764(e)(2), prior to issuance of a license authorizing operation above five percent of rated power the Cooun1ssion will consider the NRC staff's reviews relative to those matters that were not contested before the Licensing Board but nonetheless must be the subject of appropriate findings by the Director in accordance with 10 CFR 50.57(a) before a license can issue. See 10 CFR 2.760a.

Under proposed paragraph (e)(2), the Co1T111ission will issue a notification that it has completed its review of the NRC staff's findings on uncontested issues

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and a detennination that those findings provide an appropriate basis for issuance of the license. Only after this Corrmission authorization is given will the Director be able to issue a license for operation above five percent of rated power.

As section 2.764(e) states, it is the C01T111ission 1s intention that its supervisory examination of contested matters and its review of uncontested issues be completed prior to the time a facility is ready for operation above five percent of rated_power.

To ensure that the C011111ission can do so in a timely manner, paragraph (e)(3) of the rule imposes upon the Director the responsibility to keep the Corrmission infonned of the expected date when the facility involved will be ready for full-power operation. Because it is the COtTmission's intention that, absent unusual circumstances, a full-power license should not be issued until shortly before a facility is ready for full-power operation, the Director's representations will provide the timetable for Corrmission completion of its supervisory examination-of contested issues under paragraph (e)(l) and its review of uncontested issues under paragraph (e)(2).

Finally, proposed paragraph (e)(4) indicates that, in the event the Commission detennines on the basis of fts supervisory examination of contested issues or fts review of uncontested issues that COfJITiission

• action is necessary, any suspension of the effectiveness of the Licensing Board's decision or substantial postponement of the Director's issuance of the license will include a written statement of the reasons for that suspension or postponement. That suspension or postponement will not be open ended, but instead will be limited to such period as is

12

[7590-01] -

necessary for the Comnission to accept appropriate submissions from the applicant, the NRC staff, and any other party to the licensing proceeding with respect to any contested issue or from the applicant with respect to any uncontested issue and to resolve the issues.

Under this proposed procedure for full-power operating l~censes, judicial review of the issuance of a license following an initial decision will be appropriate only in two circumstances:

(1) upon final agency action on a stay motion filed in accordance with§ 2.788 or (2) upon the completion of the process of agency appellate review of an initial decision.

Any other attempt to seek judicial review regarding an initial decision authorizing ~peration will be challenged by the agency for failure to' exhaust administrative remedies. Moreover, with regard to the first circumstance, the appropriate subject of any judicial challenge to final agency action on a stay motion would,be the propriety of the agency's determination to issue or withhold a stay, not the merits of the initial decision for which the stay is sought.

C. - TMI-Related Provisions As was noted earlier, the Corranission has provided the Licensing and Appeal Boards with guidance on how to factor into the adjudicatory process the various regulatory changes resulting from the TMI-2 accident. Paragraphs (e)(l)(ii) and (f)(l)(i1) of existing§ 2.764 direct the Licensing Boards that in considering construction pennit or operating license applications they should "interpret existing regulations and regulatory policies with due consideration to the implications for those regulations and policies of the Three Mile Island

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Accident.n A similar reminder is given to the Appeal Boards under

§ 2.764{e}{2){ii} with regard to their consideration of construction permit stay requests. Further, paragraph {f}{l}{ii) relating to Licensing Board consideration of operating license applications states that 11[i]n this regard 1t should be understood that as a result of

[TMI-related] analyses under way the Conmission may change its present regulations and regulatory policies in important respects and that compliance with existing regulations may turn out to no longer warrant approval of a license application.

11 While the Coninissio~ rem~ins acutely aware of the need for this agency and the nuclear industry to remain alert to the implications and-consequences of the TMI-2 accident, nonetheless the specific Conmission guidance provided in§ 2.764 and various Commission policy statements relating to the litigation of THI-related issues has become superfluous.

In the six years since the accident, the agency has identified various 11lessons learned" from the TMI-2 acciden't, which are embodied in NUREG-0737, "Clarification of TMI Action Plan Requirements.n2 It has implemented changes to update regulatory requirements on the basis of these 11lessons 11 through specific license conditions, orders, and r-egulations. See,~' 10 CFR 50.44.(hydrogen control); 50.47, 2NUREG-series reports referenced in this document are available_ for inspection and copying for a fee in the NRC Public Document Room, 1717 H Street, NW., Washington, D.C.

These reports may be purchased from the U.S. Government Printing Office by calling 202-275-2060 or by writing this office at P.O. Box 37082, Washington, D.C. 20013-7082.

They also may be purchased from the National Technical Information Service, U.S. Department of Commerce, 5285 Port Royal Road, Springfield, VA 22161.

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50.54(s), and Appendix E to Part 50 (emergency planning); 50.54(w)

{property insurance); Part 55 (operator training}. The NRC staff has advised the Conmission that all applicable NUREG-0737 action items are covered by regulatory changes and that a license applicant's compliance with existing regulations is a sufficient response to all applicable TMI-2 accident alessons learned." As a result, the COfl111ission has reassessed a nunber of its existing policy statements on TMI-related requirements and will be publishing a notice that rescinds previous superseded policy stat~ments and sets forth the C011111ission 1s updated policy on litigation of TMI-related issues. Further, the Conunission proposes in this notice to delete the references to TMI-2 action items**

in existing§ 2.764(e)(l)(ii), (e)(2)(ii), (f)(l)(ii).

ADDITIONAL VIEWS OF COMMISSIONER BERNTHAL For several years it has been C01T111ission practice to convene a public meeting before a nuclear power plant license issues. At that meeting, NRC technical staff, the applicant, and other interested parties are given the opportunity to corrrnent on whether the Co111T1ission should pennit 11 irrrnediate effectivenessM of any Licensing Board decision authorizing full power operation for a conmercial nuclear power plant.

Generally speaking, following presentations from interested_parties, the Corrmission publicly votes on the question of whether or not a license should issue.

This proposed rule suggests that such meetings no longer be held.

'lnstead, the Co111T1ission would conduct a supervisory examination of

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contested issues and a review of uncontested matters to detennine whether the Licensing 'Board's decision should be suspended or not.

Via written public notice, the C0111t1ission would then simply corrmunicate the results of its review to the Director of Nuclear Reactor Regulation.

The public may wish to consider the question of whether the Commission should continue its past practice of holding open meetings as described above, or whether the procedure outlined in this proposed rule adequately serves public interest in the results of the Commission's supervisory review of any issues that may be associated with an application for a full-power license.

ENVIRONMENTAL IMPACT:

CATEGORICAL EXCLUSION The NRC has detennined that this proposed regulation is the type of action described in categorical exclusion 10 CFR 51.22{c){l).

Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this proposed regulation.

PAPERWORK REDUCTION REVIEW This proposed rule contains no new or amended information collection requirements and therefore is not subject to the req.uirements of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.).

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REGULATORY ANALYSIS The existing requirements governing the effectiveness of initial decisions regarding construction pennits and full-power operating licenses act to delay automatic issuance of a license following a Licensing Board's favorable initial decision until such time as the Appeal Board or the C011111ission has had an opportunity to review and make an affinnative detennination about whether the decision should become effective. The alternative put forth in this proposed rule with regard to full-power operating license initial decisions reduces the potential for administrative delay inherent in the existing process while ensuring that mechanisms are available, whether in the fonn of stay requests filed under 10 CFR 2.788 or through the Coomission's supervisory examination or review detailed i.n proposed-§ 2. 764(e)(l), (2), to postpone license issuance in appropriate circumstances.

Some revision of the existing requirements for construction pennits also appears appropriate. However, there are no pending construction permit applications and none has been filed for several years. While the Cotm1ission could retain the existing innediate effectiveness provisions, this would create misleading inconsistencies with the proposed operating license effectiveness procedures.

The Co1m1ission therefore proposes as an alternative the removal of construction permit initial decisions from§ 2.764 with the expressed intent to revisit the issue of the appropriate effectiveness scheme after additional staff study.

Finally, the Commission's previous concern that the imp.lications of the TMI-2 accident be incorporated appropriately into the licensing

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process has now been resolved. Retention of the TMI-2 related provisions of the current immediate effectiveness rule therefore is unnecessary and would be misleading to participants in NRC licensing proceedings. Deletion of those provisions also is proposed.

The proposed 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 proposed rule.

BACKFIT ANALYSIS This proposed rule does not modify or add to systems, structures, components, or design of a facility; the design approval or manufacturing license for a 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 proposed rule.

REGULATORY FLEXIBILITY CERTIFICATION The proposed rule will not have a significant economic impact upon a substantial number of small entities. Entities seeking construction pennits or Conmission operating licenses that would be subject to the revised inunediate effectiveness provisions would not fall within the definition of small businesses found in§ 34 of the Small Business Act, 15 U.S.C. 632, 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 50241).

Further,

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intervenors who probably would fall within the pertinent Small Business

~ct definition will not encounter a significant economic impact from the proposed rule. While the proposed rule would no longer afford intervenors an opportunity to co11111ent directly to the Corranission on the issue whether an initial decision should be inmediately effective, the economic costs of participating in NRC proceedings would not be affected since the rule mere*ly,redirects such conments to an Appeal Board under 10 CFR 2.788, the existing regulation governing stays.

In accordance with the Regulatory 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.

LIST OF SUBJECTS IN 10 CFR 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. 553, the NRC is proposing to adopt the foll owi-ng amendments to 10 CFR Part 2:

PART 2 - RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS

1. The authority citation for Part 2 is revised to read as follows:

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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. 5871}. Sections 2.102, 2.103, 2.104, 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 also issued under 5 U.S.C. 557. 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 and sec. 29, Pub.L.85-256, 71 Stat. 579, as amended (42 U.S.C. 2039). Subpart K crlso 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). Appendix A also issued under sec. 6, Pub.L.91-580, 84 Stat. 1437 (42 U.S.C. 2135).

Appendix A also issued under sec. 10, Pub. L.99-240, 99 Stat.

1842 (42 U.S.C. 2021b et seq.).

2. Section 2.764 is revised to read as follows:

§ 2.764 Issuance or amendment of construction permit, construction authorization, or operating license following an initial decision.

(a)

Pending review and final decision by the Corrmission, an initial decision resolving all issues before the pre~iding officer in favor of authorizing issuance or amendment of a construction permit (other than an initial decision regarding

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issuance of a power reactor construction permit), of a construction authorization, or of an operating license will be irrmediately effective upon issuance except --

(1) as provided in paragraphs (c) and (d) of this section; (2) as provided 1n any order issued in accordance with

§ 2.788 that stays the effectiveness of an initial decision; or (3) as otherwise provided by the C01TD11ission in special circumstances.

(b)

The Director of Nuclear Reactor Regulation or the Director of Nuclear Material Safety and Safeguards, as appropriate, notwithstanding the filing or pendency of an appeal pursuant to§ 2.762 or a petition for review pursuant to § 2.786, promptly shall issue a construction permit, a construction authorization, or an operating license, or amendments thereto, following an initial decision resolving all issues before the presiding officer in favor of the licensing action (other than an initial decision regarding issuance of a power reactor construct1on pennit) upon making the appropriate licensing findings, except --

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(1) as provided in paragraphs (c) through (e) of this section; (2) as provided in any order issued in accordance with

§ 2.788 that stays the effectiveness of an initial decision; or (3) as otherwise provided by the Comnission in special circumstances.

{c)

An initial decision resolving all issues before the presiding officer in favor ~f authorizing the issuance of an initial license for the construction and operation of ~n independent spent fuel storage installation {ISFSI) under 10 CFR Part 72 of this chapter may not become effective until review by the Conmission has been completed.

The Director of Nuclear Material Safety and Safeguards may not issue an initial license for the construction and operation of an independent spent fuel storage installation (ISFSI) under 10 CFR Part 72 of this chapter until expressly authorized to do so by the Corrmission.

(d)

An initial decision resolving all issues before the presiding officer fn favor of authorizing the issuance of a construction authorization or license under Part 60 of this chapter (relating to disposal of high-level radioactive wastes

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in geologic repositories), of a license under Part 61 of this chapter (relating to land disposal of radioactive waste), or of any amendment to such an authorization or a license that authorizes actions that may significantly affect the health and safety of the public, becomes. effective only upon order of the Comnission.

The Director of Nuclear Material Safety and Safeguards may not issue a construction authorization or a license under Part 60 of this chapter, a license under Part 61 of this chapter, or any amendment to such an authorization or a license that may significantly affect the health and safety of the public until expressly authorized to do so by -the Corrmission.

(e)(l) Before the Director of Nuclear Reactor Regulation I

may issue a license for operation of a nuclear power reactor above five percent of rated power in accordance with paragraph (e)(2) of this section, the C001J1ission, in the exercise of its supervisory authority over agency proceedings, shall undertake and complete a supervisory examination of those issues contested in the proceeding before the Licensing Board to consider whether there is any significant basis for doubting that the facility will be operated with adequate protection of the public health and safety, and whether the Commission should take action to suspend or to otherwise condition the effectiveness of a Licensing Board decision that resolves contested issues in a proceeding in favor of authorizing\\

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[7590-01]

operation above five percent of rated power. This supervisory examination is not part of the adjudicatory proceeding and the parties to the proceeding have no right to file pleadings with the Corrrnission with regard to thi's supervisory examination *.

The Conmission shall notify the Director in writing when its supervisory examination conducted in accordance with this paragraph has been completed.

(2) Before the Director of Nuclear Reactor Regulation issues a license that authorizes operation above five percent of rated power, the Corrmission shall review those issues that have not been contested in the proceeding before the Licensing Board but about which the DJrector must make appropriate findings prior to the issuance of such a license. The Director shall issue a license for operation above five percent of rated power only after "iritten notification from the Comnission of its completion of its review under this paragraph and of its detennination that it is appropriate for the Director to issue such a license. This Corrmission review of uncontested issues is not part of the adjudicatory proceeding and the parties to the proceeding have no right to file pleadings with the Corrmission *concerning this review.

(3)

So that the C01m1ission can conduct its supervisory examination of contested issues under paragraph (e)(l) of this section and its review of uncontested issues under paragraph

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[7590-01]

(e)(2) of this section in a timely manner, the Director of Nuclear Reactor Regulation shall keep the C011D11ission infonned of the date upon which the Director anticipates the facility will be ready for operation above fiv~ percent?~ rated po~r.

(4)

No suspension of the effectiveness of a Licensing Board's initial decision or postponement of the Director's issuance of a license that results from a Commission supervisory examination of contested issues under paragraph (e){l) of this section or a review of uncontested issues under paragraph (e)(2) of this section will be entered except in writing with a statement of the reasons*.

Such suspension or postponement will be limited to such period as is necessary fol'.' the Corrmission to resolve the matters at issue. If the supervisory examination results in a suspension of the effectiveness of the Licensing Board's initial decision under paragraph (e)(l) of this section, the C011111ission will take review of the decision sua sponte and further proceedings relative to the contested matters at issue will be in accordance with procedures for participation by the applicant, the NRC staff, or other parties to the Licensing Board proceeding established by-the Coll1Tlission in its written statement of reasons.

If a postponement results from a review under paragraph (e)(2) of this section, corrments on the, uncontested matters at issue may be filed by the. applicant

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within ten {10) days of service of the Conmiss1on's written statement.

§ -2. 765 [Removed]

3.

Section 2.765 is removed.

Dated at Washington, D.C., this ~~

day of ~Ill:.1/2{

1987.

For the Nuclear Regulatory Co1T1T1ission.