ML23156A031

PR-052 - 57FR60975 - Combined Construction Permits and Operating Licenses, Conforming Amendments

ML23156A031
Person / Time
Issue date:	12/23/1992
From:	Chilk S NRC/SECY
To:
References
PR-052, 57FR60975
Download: ML23156A031 (1)

Text

DOCUMENT DATE:

TITLE:

CASE

REFERENCE:

KEYWORD:

ADAMS Template: SECY-067 12/23/1992 PR-052 - 57FR60975 - COMBINED CONSTRUCTION PERMITS AND OPERATING LICENSES; CONFORMING AMENDMENTS PR-052 57FR60975 RULEMAKING COMMENTS Document Sensitivity: Non-sensitive - SUNSI Review Complete

STATUS OF RULBKAKING PROPOSED RULB:

PR-052 OPEN ITEK (Y/N) B RULB NAME:

COMBINED CONSTRUCTION PERMITS AND OPERATING LICENSES; CONFORMING AMENDMENTS PROPOSED RULB FED REG CITE:

57FR60975 PROPOSED RULB PUBLICATION DATB:

12/23/92 ORIGINAL DATB FOR COMMENTS: 02/22/93 HUMBER OF COMMENTS:

EXTENSION DATE:

I I

1 FINAL RULB FED. REG. CITE: 57FR60975 FINAL RULB PUBLICATION DATE: 12/23/92 OTES ON PUBLISHED AS A FINAL RULE. FILE LOCATED ON Pl.

ATUS.

CORRECTION 'l'O FINAL RULB MADB BY OGC 11/20/92.

FRN "FINAL RULE:

OF RULE COMMENT RESPONSE" SIGNED 1/19/95, PUB. 1/25/95 AT 60FR4877.

TO FIND THB STAFF CONTACT OR VIEW THB RULBMAltING HISTORY PRESS PAGB DOWH KEY HISTORY OF THB RULB PART AFFECTED: PR-052 RULB TITLE:

PROPOSED RULB SECY PAPER:

FINAL RULE COMBINED CONSTRUCTION PERMITS AND OPERATING LICENSES; CONFORMING AMENDMENTS PROPOSED RULB SRM DATE:

I I

DATB PROPOSED RULE SIGNED BY SECRETARY:

DATE FINAL RULE I

I SECY PAPER: 92-368 FINAL RULE SRM DATE:

12/15/92 SIGNED BY SECRETARY:

12/16/92 STAFF CONTACTS ON THE RULE CONTACTl: L. MICHAEL RAFKY CONTACT2:

MAIL STOP: 15-B-18 PHONE: 504-1606 MAIL STOP:

PHONE:

DOCKET NO. PR-052 (57FR60975)

In the Matter of COMBINED CONSTRUCTION PERMITS AND OPERATING LICENSES; CONFORMING AMENDMENTS DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT

-12/16/92 02/23/93 03/31/93 03/31/93 12/23/93 06/07/94 07/08/94 01/19/95 12/16/92 02/22/93 10/29/92 12/15/92 12/22/93 06/06/94 07/08/94 01/19/95 FEDERAL REGISTER NOTICE - FINAL RULE COMMENT OF NUCLEAR MANAGEMENT & RESOURCES COUNCIL (ROBERT W. BISHOP, V.P.) (

1)

SECY-92-368, ENTITLED FINAL RULE AMENDING 10 CFR PART 52 STAFF REQUIREMENT MEMORANDUM APPROVING SECY-92-368 RESPONSE TO ONE COMMENT RECEIVED AFTER ISSUANCE OF FINAL RULE, PUBLISHED IN THE FEDERAL REGISTER ON 12/30/93 AT 58 FR 69220 FEDERAL REGISTER NOTICE PROVIDING A SUPPLEMENTARY POST-PROMULGATION COMMENT PERIOD, PUBLISHED ON 6/10/94 AT 59 FR 29965 COMMENT SUBMITTED BY ROBERT BISHOP ON BEHALF OF THE NUCLEAR ENERGY INSTITUTE IN RESPONSE TO FED.

REG. NOTICE RE POST-PROMULGATION COMMENT PERIOD FINAL RULE:

COMMENT RESPONSE PUBLISHED ON 1/25/95 AT 60FR4877.

DOCKETED usw~c 7590-01

• 95 JAN 19 P 1 :39 NUCLEAR REGULATORY COMMISSION OFFICE OF SECRE 1ARY 10 CFR Part 52 DOCK[,Hf I. ";C'"

,r::r BRAHLM RIN 3150-AE42 Combined Licenses; Conforming Amendments; Post-Promulgation Comment AGENCY:

Nuclear Regulatory Commission.

ACTION:

Final rule: Comment response.

SUMMARY

The Nuclear Regulatory Commission (Commission) is addressing the one comment that it received in response to a supplementary post-promulgation comment opportunity on a portion of its final rule amending its regulations to conform to the provisions of Title XXVIII of Public Law 102-486, the "Energy Policy Act of 1992," signed into law on October 24, 1992.

This notice is necessary to inform the public of the Commission's response to that post-promulgation comment.

DATES:

The final rule became effective January 22, 1993.

Comments to the supplementary comment opportunity were due by July 11, 1994.

( <oOFR..~~'11)

~~-,\\~5i~5

2 FOR FURTHER INFORMATION CONTACT:

Grace H. Kim, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555, telephone 301-415-3605.

SUPPLEMENTARY INFORMATION:

Background

By Federal Register notice published on June 10, 1994 (59 FR 29965), the Commission offered a supplementary JO-day opportunity for "post-promulgation" comment on a portion of the final rule revising 10 CFR Part 52 in light of Title XXVIII of the Energy Policy Act of 1992 (Pub. L. 102-486, 106 Stat. 2776),

which amended the Atomic Energy Act to authorize explicitly the issuance of combined construction and operating licenses for nuclear power plants. 1 As the Commission explained in its Federal Register notice, this supplementary comment opportunity, limited to the so-called "Sholly" portion of the final Part 52 rule, 2 was provided by the Commission in conjunction with an 1

As required by 10 CFR 2.804(f), the Commission had also invited post-promulgation comment at the time it promulgated the final Part 52 rule.

See 57 FR 60975 (December 30, 1992).

In response to this comment opportunity, the Commission received comments only from the Nuclear Management and Resources Council (NUMARC).

The Commission responded to this comment in a Federal Register notice published on December 30, 1993 (58 FR 69220).

2 The "Sholly" procedure, which the Commission made applicable to combined licenses in the final rule in accordance with the Energy Policy Act (see 57 FR at 60976; 10 CFR 52.97(b) (2) (ii)), allows the Commission to make an amendment to a combined license immediately effective (i.e., prior to a hearing) r

3 agreement for the voluntary withdrawal of a petition for review of the final Part 52 rule that had been filed by the Nuclear Information and Resource Service in the Court of Appeals for the District of Columbia Circuit.

See id.

The Commission received only one comment in response, which was submitted on July 8, 1994 by the Nuclear Energy Institute (NEI) (the successor organization to NUMARC).

In its submittal NEI essentially mirrors NUMARC's previous comments with respect to the "Shelly" provisions of the final rule, expressing its support for the Commission's amendment of 10 CFR 52.97 to make the "Shelly" procedure applicable to combined licenses and reiterating NUMARC's earlier request that the Commission modify certain language in the final rule's statement of considerations to clarify the Commission's intent regarding the implementation of§ 52.97.

See 58 FR at 69220, 69221.

Because NEI merely reiterates NUMARC's comments, which have already been fully considered and addressed by the Commission (id.), no further response is necessary.

List of Subjects in 10 CFR Part 52 Administrative practice and procedure, Antitrust, Backfitting, Combined license, Early site permit, Emergency planning, Fees, Inspection, Limited work authorization, Nuclear power plants and reactors, Probabilistic risk assessment, Prototype, Reactor siting criteria, Redress of site, Reporting if it makes a finding that there are no significant hazards considerations.

4 and recordkeeping requirements, Standard design, Standard design certification.

fl.

Dated at Rockville, Maryland this..lf...::day of January, 1995.

For the Nuclear Regulatory Commission.

b---

Jo Ac ry of the Commission.

DOCKET NUMBER Pl,_

PROPOSED RULE

~ )

(51 FR 601 7?_/

NUCLEAR ENERGY INSTITUTE DOCKETED us me Mr. Samuel J. Chilk Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Attention: Docketing and Services Branch

• 94 JUL -8 P 4 :49 Robert Willis Bishop VICE PRl:SlDEN T &

SUBJECT:

Final Rule: Supplementary Post-Promulgation Comment Period 10 CFR Part 52 Combined Licenses; Conforming Amendments; Supplementary Post Promulgation Comment Period 59 Fed. Reg. 29965 -- June 10, 1994

Dear Mr. Chilk:

The Nuclear Energy Institute (NEI), 1 on behalf of the nuclear energy industry, hereby provides its comments on the U.S. Nuclear Regulatory Commission's final rule, published at 59 Fed. Reg. 29965 (June 10, 1994), which provides for a supplementary post-promulgation comment period for the amendment to 10 CFR Part 52 that implemented the provisions of Title XXVIII of Public Law 102-486, the Energy Policy Act of 1992. The NRC promulgated as a final rule the amendments to its regulations to incorporate the changes required by the enactment of the licensing reform legislation included in the Energy Policy Act. At the time of the promulgation of that final rule, the 1 NEI is responsible for coordinating the efforts of all utilities licensed by the NRC to construct or operate nuclear power plants, and of other nuclear industry organizations, in all matters involving generic regulatory policy issues and the regulatory aspects of generic operational and technical issues affecting the nuclear industry. NEl's members include every utility licensed to operate a commercial nuclear power plant in the United States, the major nuclear steam supply system vendors, major architect/engineering firms, fuel fabrication facilities, materials licensees and other holders of NRC licenses, and other individuals and organizations involved in the nuclear energy industry. NEI is the successor organization to the Nuclear Management and Resources Council (NUMARC).

1776 I ST REE T, NW SUITE 400 WASHING TON, D C 20006 - 3708 PH ONE 202. 739 8139 FAX 202.785 1898

COCr~t: T 1:*1ti & SERVICE SECTION OFFICE OF THE SECRETARY OF THE COMMISSION Document Statistics stmark Date ffe ;i.pl_ ole.l fl'Jm ~

Copies Recciv~d ___

.L-___

Add'I Copies Reproduced -3.;-----

Special Di tribution 11 t&i; YJfJf4

Mr. Samuel J. Chilk July 8, 1994 Page2 Commission provided that the rule would become effective 30 days after the date of its publication in the Federal Register. Even though the Commission concluded that it need not seek public comment on the rule, the Federal Register notice provided that comments would be entertained within 60 days of the date of publication of the rule. The only comments received during that post-promulgation comment period were those filed by NUMARC on February 22, 1993 on behalf of the nuclear energy industry. Those comments, which supported the amendments to Part 52 adopted by the Commission in the final rule and discussed some clarifications and recommended Commission actions are still relevant. The Federal Register notice seeking supplementary post-promulgation comments specifically invited comments on the Commission's treatment of the "Sholly" provisions in the final rule. This subject was addressed in the industry's February 22, 1993, comments.

As stated in those comments, the nuclear energy industry believes that the Final Rule's amendment to Section 52.97 to make the so-called "Sholly" provisions applicable to combined licenses is not only an appropriate interpretation of the Energy Policy Act, but also necessary for the proper implementation of the Energy Policy Act. Without this amendment to its rules, the Commission would be without the authority to exercise the discretion conferred by Section 2804 of the Energy Policy Act to make combined license amendments immediately effective if the Commission determines that there are no significant safety hazards considerations.

Further, we support the applicability of these same provisions to combined licenses during the post-license construction period. The relevant safety considerations

Mr. Samuel J. Chilk July 8, 1994 Page 3 and regulatory safeguards are equally applicable in both instances. As a result, we do not believe that adoption of this provision will in any way detract from the standardization goals of Part 52. Pursuant to Section 52.63(b)(l), the combined license amendments covered by the revised Section 52.97 require consideration of"whether the special circumstances which Section 50.12(a)(2) requires to be present outweigh any decrease in safety that may result from the reduction in standardization" caused thereby. Such a substantive criterion, rather than the creation of a needless procedural hurdle, is the most appropriate means for accommodating standardization aims in the license amendment process. In sum, whether considered as a matter of required statutory implementation or merely applying sound and consistent policies to the license amendment process, the application of the Sholly provisions to combined licenses, including the processing procedures of 10 CFR 50.91, is the correct step for the Commission to take.

In this supplementary post-promulgation comment period, we should encourage the Commission to consider further the comments relating to the Statement of Considerations associated with Section 52.97 which were included in the industry's February 22, 1993, submittal. We continue to believe that the Commission should modify the Statement of Considerations as discussed in that submittal to clarify the Commission's intent regarding the implementation of Section 52.97.

Because many of the important activities associated with the implementation of Part 52 are now at a crucial stage, we encourage the Commission, upon consideration of comments received during this supplementary post-promulgation comment period, to promptly publish its evaluation of the significant comments and take any other actions

Mr. Samuel J. Chilk July 8, 1994 Page4 necessary to achieve closure of this matter. As before, we would be pleased to respond to any question the Commission or NRC staff have regarding these comments or the industry's position on related matters.

RWB:bjb c:

Karen D. Cyr, Esq.

General Counsel Martin G. Malsch, Esq.

Deputy General Counsel for Licensing & Regulations

DOCKET NUMBER PR PROPOSED AULE..!.1!.~ ~-

(51 f R1c.011s NUCLEAR REGULATORY COMMISSION 10 CFR Part 52 RIN 3150 -

AE 42 DOCKETED

[7~~-P]

• 94 JUN -7 A9 :44 OFFI CE OF SECRETAPY OOCKE TIHG &,.,,_R'. ICE BRANCH Combined Licenses; Conforming Amendments; Supplementary Post-Promulgation Comment Period AGENCY:

Nuclear Regulatory Commission.

ACTION:

Final rule:

Supplementary Post-Promulgation Comment Period.

SUMMARY

The Nuclear Regulatory Commission (Commission) is providing a supplementary post-promulgation comment opportunity on a portion of its final rule amending its regulations to conform to the provisions of Title XXVIII of Public Law 102-486, the "Energy Policy Act of 1992," signed into law on October 24, 1992.

This notice is necessary to inform the public of the comment opportunity.

DATES:

The final rule became effective January 22, 1993.

Comments are due 30 days after the date of publication of this notice.

2 FOR FURTHER INFORMATION CONTACT:

Grace H. Kim, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555, telephone 301-504-3605.

SUPPLEMENTARY INFORMATION:

Background

In 1992 Congress passed, and the President signed, the Energy Policy Act of 1992 (Pub. L. 102-486, 106 Stat. 2776).

Title XXVIII of that Act amended in part the nuclear power plant licensing provisions of the Atomic Energy Act to authorize explicitly the issuance of combined construction and operating licenses for nuclear power plants.

The new legislation largely codified the Commission's existing regulations in 10 CFR Part 52 with respect to such combined licenses, but also made several changes to the licensing process established under those regulations.

On December 23, 1992, the Commission issued a final rule amending part 52 in light of the new legislation (57 FR 60975).

Finding prior public comment on the part 52 amendments unnecessary because the changes were limited to incorporating the language of the Energy Policy Act into the regulations, the Commission established a 60-day post-promulgation comment period. Id.

3 On February 18, 1993, the Nuclear Information and Resource Service (NIRS), which did not submit post-promulgation comments, 1 petitioned the United States Court of Appeals for the District of Columbia Circuit for review of the Commission's final rule.

D.C. Circuit No. 93-1164.

Recently, however, the NIRS voluntarily requested dismissal of its petition for review {which the court granted) after obtaining the Commission's agreement, in the interest of judicial economy, to provide the NIRS another opportunity for post-promulgation comment on the final rule's treatment of the so-called "Sholly" procedure applicable to combined licenses.

The "Sholly" procedure, which the Commission made applicable to combined licenses in the final rule in accordance with the Energy Policy Act (see 57 FR at 60976; 10 CFR 52.97(b) (2) (ii)), allows the Commission to make an amendment to a combined license immediately effective (i.e., prior to a hearing) if it makes a finding that there are no significant hazards considerations.

In light of these specific circumstances, the Commission is providing another opportunity for post-promulgation comment.

Any interested member of the public may submit comments on the Commission's treatment of the "Sholly" procedure in the final rule (see id.) within 30 days of the date of publication of this notice.

Pursuant to 10 CFR 2.804(f), the Commission will publish 1

The only post-promulgation comment that the Commission received was submitted on February 22, 1993 by the Nuclear Management and Resources Council.

The Commission responded to this comment in a Federal Register notice published on December 30, 1993 (58 FR 69220).

4 in the Federal Register an evaluation of the significant comments and any revisions of the rule made as a result of the comments and their evaluation.

List of Subjects in 10 CFR Part 52 Administrative practice and procedure, Antitrust, Backfitting, Combined license, Early site permit, Emergency planning, Fees, Inspection, Limited work authorization, Nuclear power plants and reactors, Probabilistic risk assessment, Prototype, Reactor siting criteria, Redress of site, Reporting and recordkeeping requirements, Standard design, Standard design certification.

Dated at Rockville, Maryland this ~fl-, day of._J£c.A.,,_. -

1994.

For the Nuclear Regulatory Commission.

of the Commission

5 not cross-reference the APA in that Act, and neither does the revised §52.103.

No cross-reference is necessary to invoke the APA, which unquestionably applies to HRC licensing proceedings under Part 52.

see 42 u.s.c. 2231.

Thus, §52.103's failure to mention the APA's "inspections or tests" exemption does not prevent applying the exemption in appropriate situations.

3.

section 52.97, Issuance of Combined License.

NUMARC agrees that the NRC properly interpreted section 2804 of the Energy Policy Act to make the so-called "Sholly" procedure applicable to combined licenses.

The "Sholly" approach allows the commission to make an amendment to a combined license immediately effective(~, prior to a hearing) if it makes a finding that there are no significant hazards considerations.

The commission altered the language of 10 cn 52.97 to reflect this express statutory authority.

Because NtJMARC's comment embraces §52.97 as sound law, and suggests no change in it, no further response is necessary.

4.

statement of Considerations on §52.97.

NUMARC expresses reservations about language in the statement ot considerations on the revised 10 CFR 52.97 stating that the commission "will not look with favor upon license amendments to the combined license filed shortly before planned operation that could have the effect of undermining

6 standardization or changing the scope of imminent or pending hearings on conformance issues."

57 FR at 60976.

NUMARC agrees that the "Sholly provisions should not *** be used as a subterfuge for eliminating contested issues in a pending §52.103 hearing on acceptance criteria performance," but fears that the commission's "overly broad" language may discourage a licensee from applying for a license amendment to permit "a late-occurring minor noncompliance" with an acceptance criterion.

NUMARC indicates that reworking the project to avoid the minor noncompliance may be undesirable "from both a cost and safety standpoint."

The commission finds the language in the statement of considerations appropriate.

Xt merely reiterates the commission's longstanding commitment to standardization evident throughout the statement of considerations on the original part

52.

See 54 FR 15372 (1989).

The language does not disfavor all license amendments, only those that would undermine standardization or change the scope of pending hearings.

A license amendment to deal with a "minor noncompliance" likely would not fall in those categories.

List of Subjects in 10 CPR Part 52 Administrative practice and procedure, Antitrust, Backfitting, combined license, Early site permit, Emergency planning, Fees, Inspection, Limited work authorization, Nuclear

7 power plants and reactors, Probabilistic risk assessment, Prototype, Reactor siting criteria, Redress of site, Reporting and recordkeeping requirements, standard design, standard design certification.

Dated at Rockville, Maryland this-~ day of

_D_e_c_e_rn_b_er _____, 1993.

Por the NUclear Re secretary of the commission.

OFFICE OF THE SECRETARY MEMORANDUM FOR:

FROM:

SUBJECT:

WASHINGTON, O.C. 20555 December 15, 1992 9205594 IN RESPONSE, PLEASE REFER TO:

M921208B

• 93 MA 31 A11 :08 u -"

William C. Parler, General Counsel Samuel J. Chilk, Secretary STAFF REQUIREMENTS -

AFFIRMATION/DISCUSSION AND VOTE, 11:30 A.M., TUESDAY, DECEMBER 8, 1992, COMMISSIONERS' CONFERENCE ROOM, ONE WHITE FLINT NORTH, ROCKVILLE, MARYLAND (OPEN TO PUBLIC ATTENDANCE)

I.

SECY-92-368 -

Final Rule Amending 10 CFR Part 52 The Commission (with the Chairman and Commissioners Rogers, Remick, and de Planque* agreeing) approved amendments to 10 CFR Part 52 which conform the rule to the language of the recently enacted "Energy Policy Act of 1992 11

• Commissioner Curtiss approved in part and disapproved in part: he would seek public comment through a notice and comment rulemaking on whether and how to amend 10 CFR Part 52.97(b) to incorporate the so-called "Shelly authority" for changes to the combined construction and operating licenses.

Commissioner Curtiss' separate views on this matter are attached and will be included in the final rulemaking notice.

The additional views of Commissioners Rogers, Remick, and de Planque are also included.

The Federal Register Notice should be revised as noted in, reviewed by the Regulatory Publications Branch, ADM, and returned for signature and publication.

(OGC)

(SECY Suspense:

12/31/92)

• Section 201 of the Energy Reorganization Act, 42 u.s.c. §5841, provides that action of the Commission shall be determined by a "majority vote of the members present."

Commissioner de Planque was not present when this item was affirmed.

Accordingly, the formal vote of the Commission was 3-1 in favor of the decision.

Commissioner de Planque, however, had previously indicated that she would approve this paper and had she been present should would have affirmed her prior vote.

' L 9205618 2 -

II.

SECY-92-376 - Final Rule on Exclusion of Attorneys from Interviews Under Subpoena The Commission, by a 5-0* vote, approved amendments to its regulations to provide for the exclusion of counsel from a subpoenaed interview when that counsel represents multiple interests in the investigation and there is concrete evidence that the counsel's presence at the interview would obstruct and impeded the investigation.

The Federal Register Notice should be reviewed by the Regulatory Publications Branch, ADM, and returned for signature and publication.

(OGC)

(SECY Suspense:

12/31/92)

Attachment:

As stated cc:

The Chairman Commissioner Rogers Commissioner Curtiss Commissioner Remick Commissioner de Planque EDO OIG Office Directors, Regions, ACRS, ACNW (via E-Mail)

OP, SDBU/CR, ASLBP (via FAX)

PDR -

Advance DCS -Pl-24

• Section 201 of the Energy Reorganization Act, 42 u.s.c. §5841, provides that action of the Commission shall be determined by a "majority vote of the members present."

Commissioner de Planque was not present when this item was affirmed.

Accordingly, the formal vote of the Commission was 4-0 in favor of the decision.

Commissioner de Planque, however, had previously indicated that she would approve this paper and had she been present should would have affirmed her prior vote.

RULEMAKING ISSUE October 29, 1992

SUBJECT:

DISCUSSION:

RECOMMENDATION:

Contact:

Michael Rafky, OGC 504-1606 (Affirmation)

The Commissioners William c. Parler General Counsel SECY-92-368 FINAL RULE AMENDING 10 CFR PART 52 on October 5, 1992, the Congress passed the "Energy Policy Act of 1992."

The Act revises the Atomic Energy Act of 1954, as amended, to provide procedures for the issuance of combined construction permits and operating licenses.

The purpose of this final rule is to make those changes in 10 C.F.R. Part 52 that are necessary to conform the regulation to the language of the Energy Policy Act.

Because the rule does nothing more than adopt the language of the newly passed Act, public comment on the rule is not required.

Attached are (1) the Federal Register notice amending Part 52, and (2) a comparative text showing what language has been added to and removed from the regulation.

That the Commission:

(1)

Approve this final rule amending the licensing process for nuclear power plants for publication in the Federal Register (Enclosure 1).

(a)

That a summary regulatory analysis is included in the final rule.

NOTE:

TO BE MADE PUBLICLY AVAILABLE WHEN THE FINAL SRM IS MADE AVAILABLE

Attachments:

(b)

That neither an environmental impact statement nor an environmental assessment and finding of no significant impact has been prepared for this final rule because it meets the criteria for a categorical exclusion under 10 CFR 51.22(c) (2).

(c)

That because this rule is being issued in final form without a notice of proposed rulemaking, the Regulatory Flexibility Act does not apply.

Accordingly, no Regulatory Flexibility Analysis has been issued in conjunction with this final rule.

(d)

That this final rule contains no information collection requirements and is therefore not subject to the Paperwork Reduction Act.

(e)

That appropriate Congressional committees will be notified of this rulemaking action.

(f)

That a public announcement will be issued.

(g)

That a copy of the final rule will be distributed to all affected licensees and other interested persons.

)Riliam C. Parler General Counsel

1.

Federal Register Notice of Final Rulemaking

2.

Comparative Text 2

3 Commissioners' comments or consent should be provided directly to the Office of the Secretary by COB Friday, November 13, 1992.

Commission Staff Office comments, if any, should be submitted to the Commissioners NLT Thursday, November 6, 1992, with an information copy to the Office of the Secretary.

If the paper is of such a nature that it requires additional review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected.

This paper is tentatively scheduled for affirmation at an Open Meeting during the Week of November 16, 1992.

Please refer to the appropriate Weekly Commission Schedule, when published, for a specific date and time.

DISTRIBUTION:

Commissioners OGC OCAA OIG OCA OPA OPP EDO ACRS ASLBP SECY

ATTACHMENT -

1

I (7590-01]

NUCLEAR REGULATORY COMMISSION 10 CFR Part 52 RIN 3150-AE42 Combined Construction Permits and Operating Licenses; Conforming Amendments AGENCY:

Nuclear Regulatory Commission.

ACTION:

Final rule.

SUMMARY

The Nuclear Regulatory Commission ("NRC" or "Commission") is amending its regulations governing the issuance of combined construction permits and operating licenses for nuclear power plants.

The final rule incorporates all the changes to these provisions that are necessary because of the enactment of licensing reform legislation.

The amendments are necessary to conform the regulations to the provisions of Title XXVIII of Public Law 102-486, signed into law on October 24, 1992.

EFFECTIVE DATE: (30 days after publication in the Federal Register.)

FOR FURTHER INFORMATION CONTACT:

L. Michael Rafky, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone: 301-504-1606.

SUPPLEMENTARY INFORMATION:

I.

Background.

II.

Section-by-section Analysis.

III. Environmental Impact: categorical Exclusion.

IV.

Paperwork Reduction Act Statement.

v.

Regulatory Analysis.

VI.

Backfit Analysis.

I.

Background

Title XXVIII of Public Law 102-486, the "Energy Policy Act of 1992," signed into law on October 24, 1992, amends the Atomic Energy Act to facilitate the standardization of nuclear power plants and to provide explicit authority for the issuance of combined construction permits and operating licenses.

The legislation largely codifies the Commission's regulations in 10 CFR Part 52.

However, the legislation also makes several changes to the licensing process set forth in those regulations.

The purpose of this rule is to make those changes necessary to conform the language of Part 52 to the provisions of the newly enacted Public Law.

Because these changes are limited to incorporating the language of that statute into the regulations, the NRC finds, pursuant to 5 u.s.c. 553(b) (B), that there is good cause not to seek public comment on this rule, as such comment is 2

unnecessary.

The rule will become effective 30 days after the date of publication in the Federal Register.

The final rule incorporates all necessary changes resulting from enactment of licensing reform legislation.

The significant changes (1) Provide that the Commission may authorize a plant to operate during the pendency of a post-construction hearing on a combined construction permit and operating license (combined license) if it makes certain specified safety findings.

Previously, under Part 52, a post-construction hearing had to be completed prior to operation; (2) Provide the Commission with the discretion to order use of either formal or informal procedures for a post-construction hearing on a combined license.

Previously, under Part 52, only formal procedures were permitted; (3) Provide the Commission with the discretion to permit post-construction license amendments to a combined license, notwithstanding the pendency of a hearing request, to become effective if the Commission makes a finding of "no significant hazards considerations." Previously, Part 52 required that hearings be completed prior to commencement of operation; (4) Eliminate the requirement that there be a pre-operational antitrust review by the Department of Justice of a combined license if there have been significant developments from 3

an antitrust perspective arising since the issuance of the combined license; and (5) Eliminate the requirement that a combined license include the earliest and latest construction completion dates.

The amendments to the rule incorporate these changes as well as other less significant changes to ensure that Part 52 conforms as closely as possible to the statutory language.

II.

Section-by-Section Analysis The following analysis of those sections that are affected under this final rule provides additional explanatory information.

All references are to Title 10, Chapter I, U.S. Code of Federal Regulations.

section 52.79 contents of applications; technical information.

The language of this section provides explicitly that the inspections, tests, analyses, and acceptance criteria must include those applicable to emergency planning and that the objective of the inspections, tests, analyses, and acceptance criteria is to provide reasonable assurance that the facility was constructed and will operate in conformity with the combined license, the Atomic Energy Act, and the Commission's rules and regulations.

4

Section 52.83 Applicability of Part 50 provisions.

This section has been revised to remove the applicability of certain provisions of Part 50 which are no longer required under the legislation.

These include S 50.33a, which had required in certain circumstances information to be submitted, by a holder of a combined license, to the Attorney General of the United States for antitrust review;§ 50.55(a), (b) and (d), which had required a construction permit for a nuclear power reactor to state the earliest and latest dates for the completion of the facility's construction, and other conditions thereof; and S 50.58, which had required applications for construction permits or operating licenses to be reviewed by the Advisory Committee on Reactor Safeguards (ACRS).

A final change to§ 52.83 is the substitution of a reference to "S 52.99" for "S 52.103." This was done because the findings to which§ 52.83 refers are now contained in

§ 52.99.

Section 52.97 Issuance of combined licenses.

This section has been amended with regard to making amendments to a combined license immediately effective under the so-called "Shelly Amendment."

Under the Public Law, an amendment to a combined license can be made immediately effective if the Commission determines there are no significant hazards considerations.

This section of the rule has been revised to 5

incorporate the statutory provisions and previously issued Commission regulations implementing the "Sholly" amendment.

The Commission, however, stresses that it will not look with favor upon license amendments to a combined license filed shortly before planned operation that could have the effect of undermining standardization or changing the scope of imminent or pending hearings on conformance issues.

Section 52.99 Inspection During Construction.

Like the other amended sections of Part 52, this section has been changed to track the language of the Public Law.

In this case, the only change is to require explicitly that, prior to operation under a combined license, the NRC staff shall find that the prescribed acceptance criteria are met.

section 52,103 Operation under a combined license.

In an effort to adhere as closely as possible to the new statutory requirements of the Public Law, the NRC has replaced most of its old section S 52.103 with the text of section 2802 of the Public Law.

Under the revised language, any request for a post-construction hearing must show, prima facie, both that one or more of the acceptance criteria are not or will not be met, and those specific operational consequences of nonconformance that would be contrary to providing reasonable assurance that the 6

public health and safety will be adequately protected.

The Commission may permit interim operation of a facility pending a hearing if it determines that this assurance exists.

The Commission has the discretion to decide if any post-construction hearing will use formal or informal hearing procedures, and it must state publicly the reasons for choosing either set of procedures.

The Commission must find, prior to operation of the facility, that the acceptance criteria have been met.

The procedures with regard to S 2.206 petitions remain the same.

9 Additionally, there is now a new paragraph (g), which is a modified version of old S 52.l0J(c).

The commission has done nothing in this section other than to incorporate the language of the Public Law into its rule.

III.

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) (2).

Therefore, neither an environmental assessment nor an environmental impact statement has been prepared for the final regulation.

7

IV.

Paperwork Reduction Act Statement This final rule contains no information collection requirements and, therefore, is not subject to the requirements of the Paperwork Reduction Act of 1980 (44 u.s.c. 3501 et seq.).

V.

Regulatory Analysis The Nuclear Regulatory Commission has made statutorily mandated changes in 10 CFR Part 52 in order to conform it to the language of the Energy Policy Act of 1992.

These changes reflect Congressionally mandated changes to the NRC's licensing process for power reactors.

Only future applicants for combined construction permits and operating licenses will be affected by the changes to the regulations.

VI.

Backfit Analysis The NRC has determined that the backfit rule, 10 CFR 50.109, does not apply to this final rule and that a backfit analysis is not required for this final rule.

The backfit analysis is not required because these amendments are required by law and do not require the modification of or additions to systems, structures, components, or design of a facility or the design approval or manufacturing license for a facility or the procedures or organization required to design, construct or operate a facility.

8

List of Subjects Part 52 - Administrative practice and procedure, Antitrust, Backfitting, Combined license, Early site permit, Emergency planning, Fees, Inspection, Limited work authorization, Nuclear power plants and reactors, Probabilistic risk assessment, Prototype, Reactor siting criteria, Redress of site, Reporting and recordkeeping requirements, Standard design, Standard design certification.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, and 5 u.s.c. 552 and 553, the NRC is adopting the following amendments to 10 CFR Part 52.

PART 52-EARLY SITE PERMITS; STANDARD DESIGN CERTIFICATIONS; AND COMBINED LICENSES FOR NUCLEAR POWER PLANTS

1.

The authority citation for Part 52 continues to read as follows:

AUTHORITY:

Secs. 103, 104, 161, 182, 183, 186, 189, 68 Stat. 936, 948, 953, 954, 955, 956, as amended, sec. 234, 83 Stat. 1244, as amended (42 u.s.c. 2133, 2201, 2232, 2233, 2236, 2239, 2282); secs. 201, 202, 206, 88 Stat. 1242, 1244, 1246, as amended (42 u.s.c. 5841, 5842, 5846).

9

2.

In§ 52.79 paragraph (c) is revised to read as follows:

§ 52.79 Contents of applications; technical information.

(c) The application for a combined license must include the proposed inspections, tests and analyses, including those applicable to emergency planning, which the licensee shall perform and the acceptance criteria therefor which are necessary and sufficient to provide reasonable assurance that, if the inspections, tests and analyses are performed and the acceptance criteria met, the facility has been constructed and will operate in conformity with the combined license, the provisions of the Atomic Energy Act, and the NRC's regulations.

Where the application references a certified standard design, the inspections, tests, analyses and acceptance criteria contained in the certified design must apply to those portions of the facility design which are covered by the design certification.

3.

Section 52.83 is revised to read as follows:

§ 52.83 Applicability of part 50 provisions.

Unless otherwise specifically provided for in this subpart, all provisions of 10 CFR Part 50 and its appendices applicable to holders of construction permits for nuclear power reactors also apply to holders of combined licenses issued under this subpart.

10

Similarly, all provisions of 10 CFR Part 50 and its appendices applicable to holders of operating licenses also apply to holders of combined licenses issued under this subpart, once the Commission has made the findings required under S 52.99, provided that, as applied to a combined license, 10 CFR 50.51 must require that the initial duration of the license may not exceed 40 years from the date on which the Commission makes the findings required under§ 52.99.

However, any limitations contained in Part 50 regarding applicability of the provisions to certain classes of facilities continue to apply.

Provisions of 10 CFR Part 50 that do not apply to holders of combined licenses issued under this subpart include§§ 50.33a, 50.55(a), (b) and (d), and 50.58.

4.

In S 52.97 paragraph (b) is revised to read as follows:

§ 52.97 Issuance of combined licenses.

(b) The commission shall identify within the combined license the inspections, tests and analyses, including those applicable to emergency planning, that the licensee shall perform, and the acceptance criteria that, if met, are necessary and sufficient to provide reasonable assurance that the facility has been constructed and will be operated in conformity with the license, the provisions of the Atomic Energy Act, and the Commission's rules and regulations.

Any modification to, addition to, or deletion from the terms of a combined license, including any modification to, addition to, or deletion from the 11

inspections, tests, analyses, or related acceptance criteria contained in such license, is a proposed amendment to such license.

There shall be an opportunity for a hearing on the proposed amendment pursuant to the procedures specified in 10 CFR 50.91.

Where the Commission makes a final determination that no significant hazards consideration is involved and that the amendment should be issued, the amendment may be effective upon issuance, even if adverse public comments have been received and even if an interested person meeting the provisions for intervention in 10 CFR 2.714 has filed a request for a hearing.

The Commission need hold any required hearing only after it issues an amendment, unless it determines that a significant hazards consideration is involved in which case the Commission will provide an opportunity for a prior hearing.

5.

Section 52.99 is revised to read as follows:

§ 52.99 Inspection during construction.

After issuance of a combined license, the NRC staff shall ensure that the required inspections, tests, and analyses are performed and, prior to operation of the facility, shall find that the prescribed acceptance criteria are met.

Holders of combined licenses shall comply with the provisions of 10 CFR 50.70 and 50.71.

At appropriate intervals during construction, the NRC staff shall publish in the Federal Register notices of the successful completion of inspections, tests, and analyses.

12

6.

Section 52.101 is removed.

§ 52.101 [Removed]

7.

Section 52.103 is revised to read as follows:

§ 52.103 Operation under a combined license.

(a) Not less than one hundred and eighty days before the date scheduled for initial loading of fuel into a plant by a licensee that has been issued a combined construction permit and operating license under section 185 b., the Commission shall publish in the Federal Register notice of intended operation.

That notice shall provide that any person whose interest may be affected by operation of the plant, may within sixty days request the Commission to hold a hearing on whether the facility as constructed complies, or on completion will comply, with the acceptance criteria of the license.

(b) A request for hearing under paragraph (a) of this section shall show, prima facie, that --

(1) One or more of the acceptance criteria in the combined license have not been, or will not be met; and (2) The specific operational consequences of nonconformance that would be contrary to providing reasonable assurance of adequate protection of the public health and safety.

(c) After receiving a request for a hearing, the Commission expeditiously shall either deny or grant the request.

If the request is granted, the Commission shall determine, after considering petitioners' prima facie showing and any answers 13

thereto, whether during a period of interim operation, there will be reasonable assurance of adequate protection of the public health and safety.

If the Commission determines that there is such reasonable assurance, it shall allow operation during an interim period under the combined license.

{d) The Commission, in its discretion, shall determine appropriate hearing procedures, whether informal or formal adjudicatory, for any hearing under paragraph {a) of this section, and shall state its reasons therefor.

(e) The Commission shall, to the maximum possible extent, render a decision on issues raised by the hearing request within one hundred and eighty days of the publication of the notice provided by paragraph (a) of this section or the anticipated date for initial loading of fuel into the reactor, whichever is later.

(f) A petition to modify the terms and conditions of the combined license will be processed as a request for action in accord with 10 CFR 2.206.

The petitioner shall file the petition with the Secretary of the Commission.

Before the licensed activity allegedly affected by the petition (fuel loading, low power testing, etc.) commences, the Commission shall determine whether any immediate action is required.

If the petition is granted, than an appropriate order will be issued.

Fuel loading and operation under the combined license will not be affected by the granting of the petition unless the order is made immediately effective.

14

(g) Prior to operation of the facility, the Commission shall find that the acceptance criteria in the combined license are met.

If the combined license is for a modular design, each reactor module may require a separate finding as construction proceeds.

Commencement of operation under a combined license is not subject to paragraph (a) of this section.

1992.

Dated at Rockville, Maryland this day of For the Nuclear Regulatory Commission, SAMUEL J. CHILIC Secretary of the Commission.

15

ATTACHMENT -

2

List of Subjects 10 CFR Part 52 Applicability of part 50 provisions, Contents of applications, Inspection during construction, Issuance of combined license, Operation under a combined license, Pre-operational antitrust review.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, and 5 u.s.c. 552 and 553, the NRC is adopting the following amendments to 10 CFR Part 52.

PART 52-EARLY SITE PERMITS; STANDARD DESIGN CERTIFICATIONS; AND COMBINED LICENSES FOR NUCLEAR POWER PLANTS

1.

Section 52.79(c) is revised to read as follows:

S 52.79 Contents of applications; technical information.

(c) The application for a combined license must include the proposed liiilil;ll1/4§ni'~ tests:i.~ inspeetieRS, and analyses' e

jl§J.l.ali;n§)rD.IIIMY:IIW~l-.'.l+IWJ:oc.uili}ex*11mwD'i:l. which the licensee shall perform and the acceptance criteria therefor which are necessary and sufficient to provide reasonable assurance that, if the i:fls.p:ifiti1W.S.iii.:}1 tests, inspee:eions and analyses are

~::.:;:;;::::::*.*-*:::::::::::::::::;::1,c,:::5:;:~;c;,,,;.--.:;:,:.-.,:;,:::::;:<-.*:::

performed and the acceptance criteria met, the facility has been constructed and will operate in conformity with the combined 1 icenseM-a-U.Irti&2xii'-1~elt4.'.ffl:<@BIK~!5¥§wlnl~dw.ll;lfifft!ffc!:0:~i:f:~¢l:~

Eiw.!+/-ilaismi:t!!

Where the application references a certified standard design, the ~!!J?:~flj~i)?n!]i:: tests, inspee:eieRs, analyses 1

and acceptance criteria contained in the certified design must apply to those portions of the facility design which are covered by the design certification.

2.

Section 52.83 is revised to read as follows:

§ 52.83 Applicability of part SO provisions.

Unless otherwise specifically provided Iii in this subpart,

• • • • -~:'.~

all provisions of 10 CFR part 50 and its appendices applicable to holders of construction permits for nuclear power reactors also apply to holders of combined licenses issued under this subpart.

Similarly, all provisions of 10 CFR part 50 and its appendices applicable to holders of operating licenses also apply to holders of combined licenses issued under this subpart, once the Commission has made the findings required under S 52.fl1/4G-3-,

provided that, as applied to a combined license, 10 CFR 50.51 must require that the initial duration of the license may not exceed 40 years from the date on which the Commission makes the findings required under S 52.II~. However, any limitations

• • • • • • • ~;~

contained in part 50 regarding applicability of the provisions to certain classes of facilities continue to apply. \\tlfti.l,l;§lii!ii]§;~

3.

Section 52.97 is revised to read as follows:

§ 52.97 Issuance of combined licenses.

2

(b) The Commission shall identify ¥!~in the BP~~n~?

license the tests, inspections, 'E!!~! and analyses:~:: ffiBS!B!:'ni E9Rffi!:i::::::@1~~:~2!ie+/-mim:11:::::::B~gi1e¥ii:::::p!'.!:nn~tffl;:t:::::::::tha t the 1 icensee shal 1 perforn'~:: and the acceptance criteria taerefor waiea '§!!!lit::::::I~~:::::::m~p\\;;:

are necessary and sufficient to provide reasonable assurance that7 if tae tests, inspeetiene, and analyses are performed and tae aeeeptanee eriteria met, the facility has been constructed and will be operated in conformity with the license, the provisions of the Atomic Energy Act, and the Commission's ~g#.¢§

• • • • • • 4*.. ********

ii;l,@regulations.

Any modification to, addition to, or deletion from the terms of a combined license, including any modification to addition to or deletion from the tests ins: -ectiF nst:: tests\\

,-,-,,::-****,,-,,,.,-P,,.,.,,,-,.,-,.*-*.*-*-*-*-,-::Ft-,._.,.,._.,_,,,.,.

analyses, or related acceptance criteria contained in such license, is a proposed amendment to such license.

There shall be an opportunity for a hearing on the proposed amendments and any aearin~ held IMJ:et se completed sefore operation of tae faeility

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4.

Section 52.99 is revised to read as follows:

S 52.99 Inspection during construction.

After issuance of a combined license, the NRC staff shall 1sure that the required inspections, tests, and analyses are performed and)j,@i{.RWP:!IJ~pt::g~~1tf~[w9p.]:::;:e,11m#:;;@1:))t)#!S~+/-i~]¥Y:i:fjj~hi!+1W~~:~'tj?-

that the prescribed acceptance criteria are met.

Holders of e

combined licenses shall comply with the provisions of 10 CFR 50.70 and 50.71.

At appropriate intervals during construction, the NRC staff shall publish in the Federal Register notices of the successful completion of inspections, tests, and analyses.

5.

Section 52.101 is deleted from the regulation.

6.

Section 52.103 is revised to read as follows:

S 52.103 Operation under a combined license.

(a) Not less than1/4&& P9a1111Rilffll][~ln;y days before ~2 g:~JfiiIIi.qll*lslil§.luja1/4IJ£.i.,j;3loading of fuel into the Feaeter, the balder ef the eemsiftea lieeftae shall, in writin~, notify the Commieeien of the e~eeted dates ef seth fael loadin~ aftd er it i ea 1 ity I t~ii)P.1~t;t=~¥1@WJ]f11~1fp,N]~-~;ia,n,n}f$'.s~ggl~

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~he Federal 4

Re1Jister Hotiee must alee advise persofts WAose iAterests may he affected by facility operatioA ef their rights UAder paralJraph c b > of this scot i Oft. Wlll[if!llffiE![::::iali ! :iJP!!&U::::1Ull! :::::;~~!;;[~!etl

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(i) a petitieft whieh shows, prima faeie, that one or more of the acceptance criteria in the combined license have not beentcy§F:

-1/l~l d~J !l;;;i'met-,- and, as a result, there is geed eause to modify or prohieit eperatieftl or (ii) A petitieft to modify the terms aftd eeftditiefts of the n§nqgff~j~-l~I;!)Ctt)p.i)t,J~i-#.~,lliJlJi!81wp.i]I$)~~qjj§i:f9.

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(2)(i)

A good eauee petitioft filed aftder para~raph (b) (1) (i) ef this seetion will be graAted ey the commissioft oRly if it iAeludee, er olearly referefloee, effioial HRC aeeumeRts, doeumeflts prepared ey or fer the eomeifted lieeftse holaer, or eviaeflee admissiele in a preeeedifl~ uflder suepart G ef part 2, waieh shew, prima faoie, that tac aeoeptaRoe eriteria have Hat 5

been met.

~he combined license holder and imc staff may file answers to the petition within the time specified in 10 CFR 2.730 for answers to motions by parties and staff, If the Commission in its judgment decides, on the basis of the petitions and any answers thereto, that the petition meets the reguirements of this paragraph, that the issues raised by the petition are not eMempt from adjudication under 5 U,6,C, 554(a) (3), that genuine issues of material fact are raised, and that settlement or other informal resolution of the issues is not possible, then the genuine issues of material fact raised by the petition JM1st be reselYed in accordance with the proYisions in 5 U,6,C, 554, 556, and 557 which are applicable to determining applications fer initial licenses, In sueh eases, the notice of hearing from the Commission must specify the procedures te be fellowed, Hatters eMempt from adjudieatien under 5 U,S,C, 554(a) (3) may be decided by the Commission solely on the basis of the shewing of good cause and any respensiYe pleadings.

(ii) A petition to modify the terms and cenditions of the combined license will be processed as a reguest fer action in aceord with 10 CFR 2,206,

~he petitioners shall file the petition with the Secretary of the Commission, Before the licensed actiYity allegedly affected by the petition (fuel loading, low power testing, ete,) commences, the Commission shall consider the petition and determine whether any immediate action is required, If the petition is granted, then an appropriate order will be issued, Fuel leading and operation under the 6

eombifted liceftoe will not be affected by the grafttiftEJ of the petitioft Uftless the order is made immediately effective.

(c) Prior to fuel loadiREJ, the Commiasioft shall fiftd that the acceptaftce criteria iA the combined license have beeft met and that, accordiAgly, the facility has beeft eonetructed aftd will operate in ceftfermity with the Atomic Ener!)* Aet aftd the Commissieft!~

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~I:~µ11:1.mrne.1wlf*lfaitlf11rw,r111~t1 1992.

Dated at Rockville, Maryland this_ day of ____ __ _

For the Nuclear Regulatory Commission, SAMUEL J. CHILK Secretary of the Commission 8

OFFICE OF THE SECRETARY MEMORANDUM FOR:

FROM:

SUBJECT:

UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555 December 14, 1992 The Chairman Commissioner Rogers Commissioner Curtiss Commissioner Remick Commissioner de Planque Samuel J. Chilk, Secretary STAFF REQUIREMENTS MEMORAND~

Attached is the staff requirements memorandum from the meeting held on Tuesday, December 8, 1992, on the subject of "Affirmation/Discussion and Vote."

In accordance with the Commission's decision, the SRM will be released within three (3) working days which is Thursday, December 17, 1992, unless I hear otherwise.

Attachment:

As stated cc:

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NUCLEAR MANAGEMENT AND RESOURCES COUNCIL 1776 Eye Street N.W.

• Suite 300

• Washington, DC 20006-2496 (202) 872-1280

• 93 FEB 23 PlZ :Q 1 Robert W. Bishop Vice President &

General Counsel Mr. Samuel J. Chilk Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 February 22, 1993 ATIENTION:

Docketing and Services Branch RE:

Final Rule - 10 CFR Part 52 Combined Construction Permits and Operating Licenses; Conforming Amendments 57 Fed. Re". 60975 (December 23. 1992)

Dear Mr. Chilk:

The Nuclear Management and Resources Council, Inc. (NUMARC)1, on behalf of the nuclear industry, hereby provides its comments on the U.S. Nuclear Regulatory Commission's Final Rule, published at 57 Fed. Reg. 60975 (December 23, 1992),

amending 10 CFR Part 52 to implement the provisions of Title XXVIII of Public Law 102-486, the Energy Policy Act of 1992. The Commission published these Part 52 amendments as a final rule because it concluded that the changes made thereby are limited to incorporating the language of the statute into the NRC regulations. The Commission has, nonetheless, invited interested members of the public to submit comments on the Final Rule.

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1NUMARC is the organization of the nuclear power industry that is responsible for coordinating the combined efforts of all utilities licensed by the NRC to construct or operate nuclear power plants, and of other nuclear industry organizations, in all matters involving generic regulatory policy issues and on the regulatory aspects of generic operational and technical issues affecting the nuclear power industry. Every utility responsible for constructing or operating a commercial nuclear power plant in the United States is a member of NUMARC. In addiction, NUMARC's members include major architect/ engineering firms and all of the major nuclear steam supply system vendors.

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Mr. Samuel J. Chilk February 22, 1993 Page 2 NUMARC supports the amendments to Part 52 effected by the Final Rule. It agrees that these amendments incorporate the relevant language of Title XXVIII of the Energy Policy Act into the Commission's regulations. In making this literal transcription, however, certain ambiguities have been created which merit clarification. The needed clarifications and the recommended Commission actions are discussed below.

Section 52.99, Ins.pection During Construction Section 52.99 has been amended to provide that, after issuance of a combined license, "the Commission" shall ensure that the required inspections, tests, and analyses are performed, as well as find, prior to operation of the facility, that the prescribed acceptance criteria are met. Part 52, as initially adopted, provided that, after issuance of a combined license, "the NRC Staff' shall assure that the required inspections, tests, and analyses are performed and that the prescribed acceptance criteria are met, with provision for a Commission finding of acceptance criteria conformance being specified in Section 52.103. While amended Section 52.99 incorporates the literal language of Section 2801 of Title XXVIII, it is our understanding that assurance of IT AAC performance under a combined license during the period of facility construction (i.e., the period of the so-called "sign-as-you-go" process) will necessarily remain the function of the NRC staff. That understanding is reenforced by the Staffs discussion of its role in the "sign-as-you-go" process in SECY-92-346 (December 31, 1992).

There is nothing in Title XXVIII or its legislative history which compels a change in the Staff responsibilities from that reflected in prior Section 52.99. Indeed, any other implementation of Section 52.99 would be wholly unworkable. Accordingly, it is our understanding that the reference to "the Commission" in amended Section 52.99 is to be read as authorizing the Commission to delegate to the Staff the responsibility for overseeing IT AAC performance during the period of facility construction; and further that this is the Commission's intention. Responsibility for the pre-operational finding of acceptance criteria conformance would, of course, be the responsibility of the Commission, as reflected in both amended Sections 52.99 and 52.103(g). To clarify this, we suggest that the Commission affirm this interpretation as part of its response to comments on the Final Rule.

Mr. Samuel J. Chilk February 22, 1993 Page 3 Section 52,103, Operation Under Combined License In substituting the language of Section 2802 of Title XXVIII for most of old Section 52.103, the amended section does not include the specific acknowledgment contained to prior Section 52.103 that matters exempt from adjudication under 5 U.S.C.

554(a)(3) may be decided by the Commission, without a hearing, solely on the basis of the hearing petition and any responsive pleadings. The authority for that proviso, as reflected in the Code citation, is the Administrative Procedure Act, the provisions of which are made applicable to NRC licensing proceedings by Section 181 of the Atomic Energy Act of 1954, as amended. Plainly, the provisions of the AP A continue to apply to NRC licensing, and there is nothing in the language of Title XXVIII or its legislative history which would indicate otherwise. As respects the appropriateness of maintaining language in Section 52.103 which goes beyond a literal transcription of the terms of Title XXVIII, we note that amended Section 52.103 continues to include provisions of old Section 52.103 which are not contained in Section 2802 of Title XXVIII, i.e., Section 52.103( c) and (g). The referenced AP A proviso should be treated in similar fashion.

Accordingly, we recommended that this AP A provision be incorporated explicitly in Part

52.

Section 52.97, Issuance of Combined License NUMARC believes that the Final Rule's amendment of Section 52.97 to make the so-called "Sholly" provisions applicable to combined licenses is a proper -- indeed necessary -- implementation of the Energy Policy Act. Without this amendment to its rules, the Commission would be without authority to exercise the discretion conferred by Section 2804 to make combined license amendments immediately effective if it determines there are no significant hazards considerations; this would be inconsistent with the Energy Policy Act.

On the substantive merits, moreover, we support the applicability of the Sholly provisions to combined licensees during the post-license construction period. The relevant safety considerations and regulatory safeguards are equally applicable in both instances. As a result, we do not believe that adoption of this provision will serve to detract from the standardization aims of Part 52. That objection would be equally applicable -- and equally without foundation -- as regards the application of the Sholly provisions to combined licensees after facilities have begun operation, which old Section 52.103 sanctioned. In any event, pursuant to Section 52.63(b)(1), the combined license

Mr. Samuel J. Chilk February 22, 1993 Page 4 amendments covered by revised Section 52.97 require consideration of whether the special circumstances which Section 50.12(a)(2) requires to be present outweigh any decrease in safety that may result from the reduction in standardization" caused thereby.

Such a substantive criterion, rather than the creation of a needless procedural hurdle, is the most appropriate means for accommodating standardization aims in the license amendment process. In sum, whether considered as a matter of required statutory implementation or that of applying sound and consistent policies to the license amendment process, the application to combined licenses of the Sholly provisions, including the processing procedures of 10 CFR 50.91, is the correct step for the Commission to take.

Statement of Considerations on Section 52.97 The Statement of Considerations on revised Section 52.97 states that the Commission "will not look with favor upon license amendments to a combined license filed shortly before planned operation that could have the effect of undermining standardization or changing the scope of imminent or pending hearings on conformance issues." We believe the reservation, as stated, is overly broad. The Sholly provisions should not, of course, be used by a licensee as a subterfuge for eliminating contested issues in a pending Section 52.103 hearing on acceptance criteria conformance. This being said, it should also be recognized that, by their nature, many of the required inspections, tests, and analyses will not be fully performable until a plant is completed or almost completed. If there is a late-occurring minor noncompliance with a specified acceptance criterion, a licensee should not be foreclosed from performing an analysis to demonstrate the acceptability of the as-built condition and from applying for an appropriate, Sholly-qualifying, license amendment to permit the condition. In fact, analysis of the condition may be preferable to rework, from both a cost and safety standpoint ( e.g., the rework may be so extensive that it has potential for inadvertently impacting other components). Given the time and expense of obtaining a license amendment, even for those to which the Sholly provisions are applicable, licensees would likely pursue rework of nonconforming conditions rather than seek a license amendment.

Thus, it is unlikely that the Commission would be inundated with applications for license amendments before fuel load; rather, from a practical standpoint, such applications would likely be limited to the truly exceptional cases where there is sound reason for not reworking or otherwise resolving the condition. As respects the stated concern for "undermining standardization," we would point again to the Part 52 safeguards provided by the requirements of Section 52.63(b)(l), i.e., the impact on standardization would be a factor in determining amendment approval.

Mr. Samuel J. Chilk February 22, 1993 Page 5 In light of the foregoing, we recommend that the cited sentence in the Statement of Considerations be modified to focus solely on contested issues in pending hearings on acceptance criteria conformance.

We appreciate the opportunity the Commission provided for the submission of comments on the Final Rule. We would be pleased to respond to any question the Commission or staff have regarding these comments.

RWB:bjb cc:

Chairman Ivan Selin Commissioner Kenneth C. Rogers Commissioner James R. Curtiss Commissioner Forrest J. Remick Commissioner E. Gail de Planque William C. Parler, Esq., General Counsel Martin G. Malsch, Esq., Deputy General Counsel

NUCLEAR REGULATORY COMMISSION 10 CFR Part 52 RIN 3150-AE42 JCKL i U

• USNHC (7590-01]

• 92 OEC 16 P 3 :34 Combined Construction Permits and Operating Licenses; Conforming Amendments AGENCY:

ACTION:

Nuclear Regulatory Commission.

Final rule.

SUMMARY

The Nuclear Regulatory Commission ("NRC" or "Commission") is amending its regulations governing the issuance of combined construction permits and operating licenses for nuclear power plants.

The final rule incorporates all the changes to these provisions that are necessary because of the enactment of licensing reform legislation.

The amendments serve to conform the regulations to the provisions of Title XXVIII of Public Law 102-486, the "Energy Policy Act of 1992," signed into law on October 24, 1992.

1 I :>--1 I C/3 DATES:

The rule becomes effective (30 days after publication in z /-2,;i_, /'fJ the Federal Register.)

Submit comments by (60 days after publication in the Federal Register).

ADDRESSES:

Submit written comments to: Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555, Attn: Docketing and Service Branch.

Hand deliver comments to: 11555 Rockville Pike, Rockville, Maryland 20852, between 7:45 am and 4:15 pm Federal workdays.

(Telephone 301-504-1966.)

Copies of comments received may be examined at the NRC Public Document Room at 2120 L Street NW., Washington, DC 20555, in the lower level of the Gelman Building.

FOR FURTHER INFORMATION CONTACT:

L. Michael Rafky, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone: 301-504-1606.

SUPPLEMENTARY INFORMATION:

I

• Background.

II.

Section-by-Section Analysis.

III. Environmental Impact: Categorical Exclusion.

IV.

Paperwork Reduction Act Statement.

V.

Regulatory Analysis.

VI.

Backfit Analysis.

I.

Background

Title XXVIII of Public Law 102-486, the "Energy Policy Act of 1992," signed into law on October 24, 1992, amends the Atomic Energy Act to facilitate the standardization of nuclear power plants and to provide explicit authority for the issuance of combined construction permits and operating licenses.

The 2

legislation largely codifies the Commission's regulations in 10 CFR Part 52.

However, the legislation also makes several changes to the licensing process set forth in those regulations.

The purpose of this rule is to make those changes necessary to conform the language of Part 52 to the provisions of the newly enacted Public Law.

Because these changes are limited to incorporating the language of that statute into the regulations, the NRC finds, pursuant to 5 u.s.c. 553(b) (B), that there is good cause not to seek public comment on this rule, as such comment is unnecessary.

The rule will become effective 30 days after the date of publication in the Federal Register.

Nevertheless, any interested member of the public who believes that the Commission has not accurately conformed Part 52 to Title XXVIII of Public Law 102-486, the Energy Policy Act of 1992, is invited to submit comments on this matter within 60 days of the date of publication of this rule.

The final rule incorporates all necessary changes resulting from enactment of licensing reform legislation.

The significant changes (1) Provide that the Commission may authorize a plant to operate during the pendency of a post-construction hearing on a combined construction permit and operating license (combined license) if it makes certain specified safety findings.

3

Previously, under Part 52, a post-construction hearing had to be completed prior to operation; (2) Provide the Commission with the discretion to order use of either formal or informal procedures for a post-construction hearing on a combined license.

Previously, under Part 52, only formal procedures were permitted; (3) Provide the Commission with the discretion to permit post-construction license amendments to a combined license, notwithstanding the pendency of a hearing request, to become effective if the Commission makes a finding of "no significant hazards considerations." Previously, Part 52 required that hearings be completed prior to commencement of operation; (4) Eliminate the requirement that there be a pre-operational antitrust review by the Department of Justice of a combined license if there have been significant developments from an antitrust perspective arising since the issuance of the combined license; and (5) Eliminate the requirement that a combined license include the earliest and latest construction completion dates.

The amendments to the rule incorporate these changes as well as other less significant changes to ensure that Part 52 conforms as closely as possible to the statutory language.

In addition, 10 CFR 52.8 is being amended to correct a typographical error and to make revisions of a minor administrative nature.

4

II.

Section-by-Section Analysis The following analysis of those sections that are affected under this final rule provides additional explanatory information.

All references are to Title 10, Chapter I, U.S. Code of Federal Regulations.

section 52.8 Information collection requirements: 0MB approval.

This section is revised to correct data provided in accordance with an Office of Management and Budget (0MB) regulation regarding the information collection requirements contained in this part.

In paragraph (a), a typographical error in the 0MB approval number is corrected.

In paragraph (b), four sections are added to the list of sections containing approved information collection requirements.

These revisions are of a minor administrative nature and are made to improve the accuracy of the information in this section and to comply with 0MB regulations.

section 52.79 contents of applications; technical information.

The language of this section provides explicitly that the inspections, tests, analyses, and acceptance criteria must include those applicable to emergency planning and that the objective of the inspections, tests, analyses, and acceptance 5

criteria is to provide reasonable assurance that the facility was constructed and will operate in conformity with the combined license, the Atomic Energy Act, and the Commission's rules and regulations.

Section 52.83 Applicability of Part 50 provisions.

This section has been revised to remove the applicability of certain provisions of Part 50 which are no longer required under the legislation.

These include S 50.55(a), (b) and (d), which had required a construction permit for a nuclear power reactor to state the earliest and latest dates for the completion of the facility's construction, and other conditions thereof; and S 50.58, which had required applications for construction permits or operating licenses to be reviewed by the Advisory Committee on Reactor Safeguards (ACRS).

A final change to S 52.83 is the substitution of a reference to "S 52.99" for"§ 52.103." This was done because the findings to which§ 52.83 refers are now contained in S 52.99.

Section 52.97 Issuance of combined licenses.

This section has been amended with regard to making amendments to a combined license immediately effective under the so-called "Shelly Amendment."

Under the Energy Policy Act, an amendment to a combined license can be made immediately effective 6

if the Commission determines there are no significant hazards considerations.

This section of the rule has been revised to incorporate the statutory provisions and previously issued Commission regulations implementing the "Sholly" amendment.

The Commission, however, stresses that it will not look with favor upon license amendments to a combined license filed shortly before planned operation that could have the effect of undermining standardization or changing the scope of imminent or pending hearings on conformance issues.

Section 52.99 Inspection during construction.

Like the other amended sections of Part 52, this section has been changed to track the language of the Energy Policy Act.

In this case, the only change is to require explicitly that, prior to operation under a combined license, the Commission shall find that the prescribed acceptance criteria are met.

Section 52.101 Pre-operational antitrust review.

This section, which has been deleted as a result of the new legislation, had provided for a pre-operational antitrust review of a combined license by the Department of Justice if there had been significant antitrust-related developments arising after the issuance of that license.

7

section 52.103 Operation under a combined license.

In an effort to adhere as closely as possible to the new statutory requirements of the Energy Policy Act, the NRC has replaced most of its old section S 52.103 with the text of section 2802 of that Act.

Under the revised language, any request for a post-construction hearing must show, prima facie, both that one or more of the acceptance criteria are not or will not be met, and those specific operational consequences of nonconformance that would be contrary to providing reasonable assurance that the public health and safety will be adequately protected.

The Commission may permit interim operation of a facility pending a hearing if it determines that this assurance exists.

The Commission has the discretion to decide if any post-construction hearing will use formal or informal hearing procedures, and it must state publicly the reasons for choosing either set of procedures.

The Commission must find, prior to operation of the facility, that the acceptance criteria have been met.

The procedures with regard to S 2.206 petitions remain the same.

Additionally, there is now a new paragraph {g), which is a modified version of old S 52.103(c).

The Commission has done nothing in this section other than to incorporate the language of the Energy Policy Act into its rule.

8

Commissioner Curtiss' Separate Views on Final Rules Amending 10 CFR Part 52 to Incorporate Provisions of the Energy Policy Act:

With one exception, I approve the above final rulemaking changes to incorporate the provisions of the Energy Policy Act.

The one exception concerns the proposed amendment to 10 CFR 52.97(b) to incorporate the so-called "Sholly" authority.

For the reasons set forth below, I cannot agree with the recommendation to amend 10 CFR 52.97(b) for the purpose of extending the provisions of the "Sholly" amendment contained in section 189a.(2) of the Atomic Energy Act to amendments to combined licenses (COLs) prior to authorization to operate.

Indeed, I believe that the adoption of this provision will serve to detract from the overall objective that we have established in Part 52 to achieve and maintain a high degree of standardization.

When§ 52.97(b) was originally enacted by the Commission, it was adopted for the sole purpose of ensuring that the level of standardization reflected in a COL, once issued, would not be diluted by subsequent changes that a COL holder might seek during construction.

Recognizing that such changes should not be foreclosed altogether, the approach taken by the Commission in S 52.97(b) was to establish a stringent procedural hurdle for the COL holder who wishes to seek a change in its COL, once issued:

Section 52.97(b) provides that any such changes would be treated as amendments to the COL (thereby requiring a hearing upon 9

request), and that the hearing on any such amendments would have to be completed before operation of the facility.

This approach, the Commission reasoned at the time, would serve to provide yet another strong disincentive against a COL holder seeking changes to a COL, once issued. 1 Indeed, it was exactly this point that the Commission emphasized in its response to a question on this matter from one of our oversight Committees:

The Commission did not extend Sholly as a policy choice because it wanted to discourage late changes to combined licenses or to the ITAAC therein.

Such changes could have the effect of undermining standardization or changing the scope of imminent or pending hearings on conformance issues.

Hearing Before the Subcommittee on Nuclear Regulation of the Committee on Environment and Public Works, United States Senate, on the Nuclear Licensing Provision in s.1220, the National Energy Security Act of 1991, January 23, 1992 (Committee Print), p. 56 (emphasis added).

1It should be noted that a COL holder is permitted to make certain changes in its COL, if those changes satisfy the criteria of the S 50.59-type change procedure.

These S 50.59-type changes are not considered amendments, and hence would not be subject to the requirements of S 52.97(b).

10

This same point was set forth quite persuasively by Chairman Selin in that same hearing:

The Commission specifically did not put [the "Shelly" provision] into part 52.

we are not interested in encouraging design changes, particularly in the standardization area ****

We want to discourage changes -- random changes -- even if they don't, in themselves, have a health and safety impact, because we believe the totality of the configuration has a health and safety impact.** so we consciously did not put that in part 52.

Remarks of Chairman Selin, i.g. p. 22.

In my view, the fundamental policy of S 52.97(b) remains equally sound today.

Hence, the only question that remains, in my judgment, is whether the recently-enacted Energy Policy Act of 1992 dictates a different result.

In this regard, I would note that the Act gives the Commission the discretion to decide whether to modify Part 52 in a manner that would permit COL amendments to be made immediately effective where such amendments involve no significant hazards considerations.

Of particular note, section 2803 of the Energy Policy Act provides that --

11

The Nuclear Regulatory Commission shall modify part 52 of title 10, Code of Federal Regulations, to conform with sections 185b. and 189a.(ll (Bl of the Atomic Energy Act of 1954, as amended by sections 2801 and 2802 of this Act, not later than 1 year after the date of the enactment of this Act (emphasis added).

This provision, which enumerates those sections of the Act for which we must adopt conforming regulations, is limited by its terms to sections 2801 and 2802 of the Act.

It does not reference section 2804, the section of the Act containing the "Shelly" provision.

As a consequence, I read the Act as giving the Commission the discretion to decide whether we wish to extend the "Sholly" authority to COL amendments.

In light of the discretion that we have, and based upon the reasons set forth above, I would not modify section 52.97(b), as proposed in this rulemaking. 2 In all other respects, I approve the changes to Part 52 that are proposed herein.

2In the alternative, if it is the will of the majority of the Commission to modify S 52.97(b), I believe this is a matter that deserves -- and indeed requires -- public comment.

I say this not only because of the significant policy considerations involved here, but more importantly because, as a legal matter, if Congress has conferred upon the Commission the discretion to decide what approach to take in the regulations that we adopt to implement the statute, the justification for publishing this change as a final rule (i.e. that we are simply adopting the language of the newly-passed Act) no longer obtains.

12

Additional Views of Commissioners Rogers. Remick. and de Plangue If the Commission were to leave S 52.97(b) as it stood before enactment of the Energy Policy Act, requiring a prior hearing on every proposed postconstruction amendment to a combined license, our regulations would have been inconsistent with the Act.

This is the view of the Commission's General Counsel, and we adopt it as our own.

It is clear that Congress intended that the Shelly amendment be available for use with each combined license, because Congress did in fact amend Section 189a.(2) of the Atomic Energy Act to make the Shelly provisions available for use with each combined license.

Congress thereby gave us the discretion in each individual case to decide, according to the Shelly provisions, whether to make an amendment immediately effective, but Congress did not give us the discretion to write rules which directly contradict the newly amended Shelly provisions.

Standardization is afforded considerable protection by Part 52.

We have no cause to try to protect it further by, in effect, trying to rewrite the newly amended Shelly provisions.

We would emphasize that the statutory provisions merely give us the discretion to make an amendment to a combined license immediately effective if it satisfies the criteria of Section 189(a) of the Atomic Energy Act.

The Commission would retain the discretion to require a prior hearing in a specific case.

13

III.

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) (2).

Therefore, neither an environmental assessment nor an environmental impact statement has been prepared for the final regulation.

IV.

Paperwork Reduction Act Statement This final rule does not contain a new or amended information collection requirement subject to the Paperwork Reduction Act of 1980 (44 u.s.c. 3501 et seq.).

Existing requirements were approved by the Office of Management and Budget, approval number 3150-0151.

V.

Regulatory Analysis The Nuclear Regulatory Commission has made statutorily mandated changes in 10 CFR Part 52 in order to conform it to the language of the Energy Policy Act of 1992.

These changes reflect Congressionally mandated changes to the NRC's licensing process for power reactors.

Only future applicants for combined construction permits and operating licenses will be affected by the changes to the regulations.

14

VI.

Backfit Analysis The NRC has determined that the backfit rule, 10 CFR 50.109, does not apply to this final rule and that a backfit analysis is not required for this final rule.

The backfit analysis is not required because these amendments are required by law and do not require the modification of or additions to systems, structures, components, or design of a facility or the design approval or manufacturing license for a facility or the procedures or organization required to design, construct or operate a facility.

List of Subjects Part 52 - Administrative practice and procedure, Antitrust, Backfitting, Combined license, Early site permit, Emergency planning, Fees, Inspection, Limited work authorization, Nuclear power plants and reactors, Probabilistic risk assessment, Prototype, Reactor siting criteria, Redress of site, Reporting and recordkeeping requirements, Standard design, Standard design certification.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, and 5 u.s.c. 552 and 553, the NRC is adopting the following amendments to 10 CFR Part 52.

15

PART 52-EARLY SITE PERMITS; STANDARD DESIGN CERTIFICATIONS; AND COMBINED LICENSES FOR NUCLEAR POWER PLANTS

1.

The authority citation for Part 52 continues to read as follows:

AUTHORITY:

Secs. 103, 104, 161, 182, 183, 186, 189, 68 Stat. 936, 948, 953, 954, 955, 956, as amended, sec. 234, 83 Stat. 1244, as amended (42 u.s.c. 2133, 2201, 2232, 2233, 2236, 2239, 2282); secs. 201, 202, 206, 88 Stat. 1242, 1244, 1246, as amended (42 u.s.c. 5841, 5842, 5846).

2.

Section 52.8 is revised to read as follows:

§ 52.8 Information collection requirements: 0MB approval.

(a) The Nuclear Regulatory Commission has submitted the information collection requirements contained in this part to the Office of Management and Budget (0MB) for approval as required by the Paperwork Reduction Act of 1980 (44 u.s.c. 3501 et seq.).

0MB has approved the information collection requirements contained in this part under control number 3150-0151.

(b) The approved information collection requirements contained in this part appear in SS 52.15, 52.17, 52.29, 52.35, 52.45, 52.47, 52.57, 52.63, 52.75, 52.77, 52.79, 52.91 and 52.103.

16

3.

In S 52.79 paragraph (c) is revised to read as follows:

S 52.79 Contents of applications; technical information.

(c) The application for a combined license must include the proposed inspections, tests and analyses, including those applicable to emergency planning, which the licensee shall perform and the acceptance criteria therefor which are necessary and sufficient to provide reasonable assurance that, if the inspections, tests and analyses are performed and the acceptance criteria met, the facility has been constructed and will operate in conformity with the combined license, the provisions of the Atomic Energy Act, and the NRC's regulations.

Where the application references a certified standard design, the inspections, tests, analyses and acceptance criteria contained in the certified design must apply to those portions of the facility design which are covered by the design certification.

4.

Section 52.83 is revised to read as follows:

S 52.83 Applicability of part 50 provisions.

Unless otherwise specifically provided for in this subpart, all provisions of 10 CFR Part 50 and its appendices applicable to holders of construction permits for nuclear power reactors also apply to holders of combined licenses issued under this subpart.

17

Similarly, all provisions of 10 CFR Part 50 and its appendices applicable to holders of operating licenses also apply to holders of combined licenses issued under this subpart, once the Commission has made the findings required under S 52.99, provided that, as applied to a combined license, 10 CFR 50.51 must require that the initial duration of the license may not exceed 40 years from the date on which the Commission makes the findings required under S 52.99.

However, any limitations contained in Part 50 regarding applicability of the provisions to certain classes of facilities continue to apply.

Provisions of 10 CFR Part 50 that do not apply to holders of combined licenses issued under this subpart include§§ 50.55(a), (b) and (d), and 50.58.

5.

In§ 52.97 paragraph (b) is revised to read as follows:

S 52.97 Issuance of combined licenses.

(b) (1) The Commission shall identify within the combined license the inspections, tests, and analyses, including those applicable to emergency planning, that the licensee shall perform, and the acceptance criteria that, if met, are necessary and sufficient to provide reasonable assurance that the facility has been constructed and will be operated in conformity with the license, the provisions of the Atomic Energy Act, and the Commission's rules and regulations.

(2) (i) Any modification to, addition to, or deletion from the terms of a combined construction and operating license, 18

including any modification to, addition to, or deletion from the inspections, tests, analyses, or related acceptance criteria contained in the license is a proposed amendment to the license.

There must be an opportunity for a hearing on these amendments.

(ii) The Commission may issue and make immediately effective any amendment to a combined construction and operating license upon a determination by the Commission that the amendment involves no significant hazards consideration, notwithstanding the pendency before the Commission of a request for a hearing from any person.

The amendment may be issued and made immediately effective in advance of the holding and completion of any required hearing.

The amendment will be processed in accordance with the procedures specified in 10 CFR 50.91.

6.

Section 52.99 is revised to read as follows:

S 52.99 Inspection during construction.

After issuance of a combined license, the Commission shall ensure that the required inspections, tests, and analyses are performed and, prior to operation of the facility, shall find that the prescribed acceptance criteria are met.

Holders of combined licenses shall comply with the provisions of 10 CFR 50.70 and 50.71.

At appropriate intervals during construction, the NRC staff shall publish in the Federal Register notices of the successful completion of inspections, tests, and analyses.

19

S 52.101 [Removed]

7.

Section 52.101 is removed.

8.

Section 52.103 is revised to read as follows:

S 52.103 Operation under a combined license.

(a) Not less than one hundred and eighty days before the date scheduled for initial loading of fuel into a plant by a licensee that has been issued a combined construction permit and operating license under subpart c of this part, the Commission shall publish in the Federal Register notice of intended operation.

That notice shall provide that any person whose interest may be affected by operation of the plant, may within sixty days request the Commission to hold a hearing on whether the facility as constructed complies, or on completion will comply, with the acceptance criteria of the license.

(b) A request for hearing under paragraph (a) of this section shall show, prima facie, that --

(1) One or more of the acceptance criteria in the combined license have not been, or will not be met; and (2) The specific operational consequences of nonconformance that would be contrary to providing reasonable assurance of adequate protection of the public health and safety.

(c) After receiving a request for a hearing, the Commission expeditiously shall either deny or grant the request.

If the request is granted, the Commission shall determine, after considering petitioners' prima facie showing and any answers 20

thereto, whether during a period of interim operation, there will be reasonable assurance of adequate protection of the public health and safety.

If the Commission determines that there is such reasonable assurance, it shall allow operation during an interim period under the combined license.

(d) The Commission, in its discretion, shall determine appropriate hearing procedures, whether informal or formal adjudicatory, for any hearing under paragraph (a) of this section, and shall state its reasons therefor.

(e) The Commission shall, to the maximum possible extent, render a decision on issues raised by the hearing request within one hundred and eighty days of the publication of the notice provided by paragraph (a) of this section or the anticipated date for initial loading of fuel into the reactor, whichever is later.

(f) A petition to modify the terms and conditions of the combined license will be processed as a request for action in accord with 10 CFR 2.206.

The petitioner shall file the petition with the Secretary of the Commission.

Before the licensed activity allegedly affected by the petition (fuel loading, low power testing, etc.) commences, the Commission shall determine whether any immediate action is required.

If the petition is granted, than an appropriate order will be issued.

Fuel loading and operation under the combined license will not be affected by the granting of the petition unless the order is made immediately effective.

21

(g) Prior to operation of the facility, the Commission shall find that the acceptance criteria in the combined license are met.

If the combined license is for a modular design, each reactor module may require a separate finding as construction proceeds.

1992.

-rte..

Dated at Rockville, Maryland this...l..fL day of D~

For the V

SAMUEL Secretary of 22 Regulatory Commission, Commission.