ML23156A085

PR-002 and 051 - 63FR48644 - Streamlined Hearing Process for NRC Approval of License Transfers

ML23156A085
Person / Time
Issue date:	09/11/1998
From:	Hoyle J NRC/SECY
To:
References
PR-002, PR-051, 63FR48644
Download: ML23156A085 (1)

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DOCUMENT DATE:

TITLE:

CASE

REFERENCE:

KEYWORD:

ADAMS Template: SECY-067 09/11/1998 PR-002 AND 051 - 63FR48644 - STREAMLINED HEARING PROCESS FOR NRC APPROVAL OF LICENSE TRANSFERS PR-002 AND 051 63FR48644 RULEMAKING COMMENTS Document Sensitivity: Non-sensitive - SUNS! Review Complete

STATUS OF RULEMAKING PROPOSED RULE:

PR-0*02 AND 051 OPEN ITEM (Y/N) Y RULE NAME:

STREAMLINED HEARING PROCESS FOR NRC APPROVAL OF LICENSE TRANSFERS PROPOSED RULE FED REG CITE:

63FR48644 PROPOSED RULE PUBLICATION DATE:

09/11/98 ORIGINAL DATE FOR COMMENTS: 10/13/98 NUMBER OF COMMENTS:

E~TENSION DATE:

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16 FINAL RULE FED. REG. CITE: 63FR66721 FINAL RULE PU~~ICATION DATE: 1i/03/98 NOTES ON: AMENDING REGS TO PROVIDE FOR EFFICIENT ~LING OF HEARINGS ON LIC STATUS ENSE TRANSFERS & TO ALLOW PROCESSING OF T~SFER APPLICATIONS W/O OF RULE: PREPARATION OF ENVIRONMENTAL ASSESSMENTS.

FI~E IN 16 G4.

HISTORY OF THE RULE PART AFFECTED: PR-002 AND 051 RULE TITLE:

STREAM~INED HEARING PROCESS FOR NRC APPROVAL OF LICENSE TRANSFERS PROPOSED RULE SECY PAPER:

FINAL RULE SECY PAPER:

CONTACT!: JOSEPH GRAY CONTACT2:

PROPOSED RULE SRM DATE:

FINAL RULE SRM DATE:

I I

I I

DATE PROPOSED RULE SIGNED BY SECRETARY:

09/04/98 DATE FINAL RULE SIGNED BY SECRETARY:

11/27/98 STAFF CONTACTS ON THE RULE MAIL STOP: 0-15 B18 PHONE: 415-1740 MAIL STOP:

PHONE:

DOCKET NO. PR-002 AND 051 (63FR48644)

In the Matter of STREAMLINED HEARING PROCESS FOR NRC APPROVAL OF LICENSE TRANSFERS DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT 09/08/98 09/04/98

.09/22/98 09/20/98 FEDERAL REGISTER NOTICE - PROPOSED RULE COMMENT OF DAVID LEONARDI (

1) 09/25/98 09/24/98 COMMENT OF UTILITY WORKERS UNION OF AMERICA, AFL-CIO LOC. 369 (PATRICK CARNEY, PRESIDENT LOC. 369) (

2) 09/29/98 09/24/98 COMMENT OF MARVIN I. LEWIS (

3) 10/09/98 10/13/98 10/13/98.

.10/13/98 10/14/98 10/14/98 10/14/98 10/14/98 10/15/98 10/15/98 10/08/98 COMMENT OF SOUTHERN CALIFORNIA EDiSON COMPANY 10/06/98 10/07/98 10/12/98 10/13/98 10/13/98 (HAROLD B. RAY, EXEC.. VICE PRES.) (

4)

COMMENT OF FLORIDA POWER & LIGHT COMPANY (THOMAS F. PLUNKETT, PRES. NUC. DIV.) (

5)

COMMENT OF TEXAS UTILITIES ELECTRIC COMPANY (TU ELECTRIC)

(C. LANCE TERRY, SR. VP & PNO) (

6)

COMMENT OF AMERGEN ENERGY COMPANY, LLC (EDWARD J. CULLEN, JR.) (

7)

COMMENT OF ALLIANT UTILITIES & STP NUCLEAR OPERATING COMPANY (ALVIN H. GUTTERMAN, ESQ.) (

8)

COMMENT OF SOUTHERN NUCLEAR OPERATING COMPANY, INC.

(H. L. SUMNER, JR., VICE PRESIDENT) (

9) 10/13/98 COMMENT OF NUCLEAR ENERGY INSTITUTE (ROBERT W. BISHOP, VP & GEN. COUNSEL) (

10) 10/13/98 COMMENT OF SHAW PITTMAN POTTS & TROWBRIDGE & 13 UTILITIES (PAUL A. GAUKLER, ESQ.) (

11) 10/13/98 COMMENT OF GPU NUCLEAR (J.C. FORNICOLA, DIR. NUC. SAFETY) (

12) 10/13/98 COMMENT OF DUKE ENERGY CORPORATION (ANNE W. COTTINGHAM, ESQ., ET AL.) (

13)

DOCKET NO. PR-002 AND 051 {63FR48644)

DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT 10/15/98 10/16/98 10/16/98 12/02/98 10/12/98 10/09/98 COMMENT OF OHIO CITIZENS FOR RESPONSIBLE ENERGY

{SUSAN L. HIATT, DIRECTOR OCRE) {

16)

COMMENT OF PECO ENERGY COMPANY

{GARRETT D. EDWARDS, DIRECTOR, LIC.) {

14) 10/12/98 COMMENT OF WISCONSIN ELECTRIC POWER COMPANY

{MICHAEL B. SELLMAN, SR. VP & CNO) {

15) 11/27/98 FEDERAL REGISTER NOTICE - FINAL RULE

OOCl,ETED USN R[7590-01-P]

NUCLEAR REGULATORY COMMISSION

• 9s OEC -2. A11 :06 10 CFR Parts 2 and 51 Of:F;ICf \:f,,.::;t(:P: **

RIN 3150-AG09 R\Jlt:1v:;*t*-.t! *!.:is.1 AOJUDICi.JiC,rf~;

Streamlined Hearing Process for NRC Approval of License Transfers AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

SUMMARY

The Nuclear Regulatory Commission is amending its regulations to provide specific uniform procedures and rules of practice for handling requests for hearings associated with license transfer applications involving material and reactor licenses as well as licenses issued under the regulations governing the independent storage of spent nuclear fuel and high-level radioactive waste. Conforming amendments are also made to certain other parts of the co*mmission's regulations. These new provisions provide for public participation and opportunity for an informal hearing on matters relating to license transfers, specify procedures for filing and docketing applications for license transfers, and assign appropriate authorities for issuance of

• administrative amendments to reflect approved license transfers. This rulemaking also adds a categorical exclusion that permits processing of transfer applications without preparation of Environmental Assessments.

1.{)~..31 IC/98 EFFECTIVE DATE: Tl lis rul~ beeo, I,es effective On pablicatlon.

Pµ};. m, a /3/ 9s j

to3FR fole,7d-/

2 FOR FURTHER INFORMATION CONTACT: James A. Fitzgerald, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555-0001, telephone (301) 415-1607, e-mailJAF@nrc.gov,.

or Leo Slaggie, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555, telephone (301) 415-1605 (TDD), e-mail ELS@nrc.gov.

SUPPLEMENTARY INFORMATION:

I. Background On September 11, 1998 (63 FR 48644), the NRG published in the Federal Register a proposed rule that would amend NRC's regulations by adding to 10 CFR Part 2, the NRC's Rules of Practice for Domestic Licensing Proceedings and Issuance of Orders, a subpart M, which would establish uniform informal procedures for handling requests for hearings associated with license transfer applications. This initiative is part of a broad effort to improv1a the effectiveness of the agency's programs and processes.

A number of categories of NRG licensees, but in particular the electric power industry, have undergone and will continue to undergo significant transformations as a result of changes to the economic and regulatory environment in which they operate. Electric utilities in particular are now operating in an environment which is increasingly characterized by restructuring and organizational change. In recent years, the Commission has seen a significant in~rease in the number of requests for transfers of NRG licenses. The number of requests related to reactor licenses has increased from a historical average of 2-3 per year to more than 20 requests in fiscal year 1997. With the restructuring that the energy industry is undergoing, the Commission

3 expects this high rate of requests for approval of license transfers to continue. Because of the need for expeditious decisionmaking from all agencies, including the Commission, for these kinds of transactions, timely and effective resolution of requests for transfers on the part of the Commission is essential.

In general, license transfers do not involve any technical changes to plant operations.

Rather, they involve changes in ownership or partial* ownership of facilities at a corporate level.

Section 184 of the Atomic Energy Act of 1954, as amended (AEA), specifies, however, that:

[N]o license grante.d hereunder* *

• shall be transferred, assigned, or in any manner disposed of, either voluntarily or involuntarily, directly or indirectly, through transfer of control of any license to any person, unless the Commission shall, after securing full information, find that the transfer is in accordance with the provisions of this Act, and shall give its consent in writing. (42 U.S.C. 2234; 10 CFR 30.34 (b), 40.46, 50.80, 72.50)

Transfers falling within the foregoing provision include indirect transfers which might entail, for example, the establishment of a holding company over an existing licensee, as well as direct transfers, such as transfer of an ownership interest held by a non-operating, minority

.owner, and the complete transfer of the ownership and operating authority of a single or majority owner. Although other req1:1irements of the Commission's licensing provisions may also be addressed to the extent relevant to the particular transfer action, typical NRC staff review of such applications consists largely of assuring that the ultimately licensed entity has the capability to meet financial qualification a*nd decommissioning funding aspects of NRC regulations. These financial capabilities are important over the long term, but have no direct or immediate impact on

4 the requirements for day-to-day operations at a licensed facility. The same is generally true* of applications involving the transfer of materials licenses.

Notwithstanding the nature of the issues relevant to a decision on whether to consent to a license transfer, past Commission practice has generally involved the use of formal hearing procedures under the provisions of 10 CFR Part 2, Subpart G, for license transfers other thari those for materials licenses, which have used the informal hearing procedures provided by 10 CFR Part 2, Subpart L. However, license transfers do not, as a general proposition, involve the type of technical issues with immediate impact on the actual operation of the facilities that might benefit from review by a multi-member, multi-disciplined Atomic Safety and Licensing Board historically used by the Commission in hearings on initial licensing or.license amendmemts that substantially affect the technical operations. It is a matter suitable for reasonable discussion whether such complex hearing procedures provide the best means of reaching decisions on such technical issues, but, be they the best or not, they clearly are not required and are not the mo-st efficient means for resolving the issues encountered in license transfers. Accordingly, the Commission has determined that requests for hearings on applications for license transfers should be handled by a separate Subpart of 10 CFR Part 2. This new Subpart M establishes an efficient and appropriate informal process for handling hearing requests associated with transfer applications commensurate with the nature of the issues involved and the rights of all parties.

The basic requirement for an opportunity for a hearing on a license transfer is found in Section 189.a of the Atomic Energy Act of 1954, as amended (AEA), which provides that:

5

[l]n any proceeding under this Act, for the granting, suspending, revoking, or amending of any license or construction permit, or application to transfer control,

• *

• the Commission shall grant a hearin~ upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding. (42 U.S.C. 2239(1).)

The Commission believes that AEA sections 184 and 189 give the Commission the flexibility to fashion procedures which provide for a fair process to consider any issues raised concerning license transfers while still proceeding in an expedited manner. In 1983, a reviewing court held that Section 189.a of the Atomic Energy Act pid not require that a hearing on a materials license amendment be conducted "on the record." City of West Chicago v. U.S.

Nuclear Regulatory Commission, 701 F.2d 632,.641-45 (7th Cir. 1983). There, the court declined to read Section 189.a as requiring formal trial-type hearings, in the absence of clear Congressional "intent to trigger the formal on-the-record hearing provisions of the APA." _kl. at

~41. The Commission has also taken the position in court that Section 189.a does not require formal hearings in reactorHcensing proceedings. En Banc Brief for Respondents dated August 30, 1991 (filed"in the U.S. Court of Appeals for the District of Columbia Circuit, No. 89-1381, Nuclear Information and Resource Service v. NRG, at pp. 32-38). However', the court did not find it necessary to decide the question. Nuclear Information Resource Services v. NRC, 969 F2d 1169, 1180 (D.C. Cir. 1992).

To promote uniformity, the hearing procedures established in the final rule apply to all license transfers which require prior NRC approval. The Commission has added to the final rule, as appropriate, additional language to make explicit that the new procedures apply to transfers of

6 licenses issued under 10 CFR Part 72 for independent storage of spent nuclear fuel and high level radioactive waste. The procedures are designed to provide for public participation in the~

event of requests for a hearing under these provisions, while at the same time providing an efficient process that recognizes the time-sensitivity normally present in transfer cases.

II. Comments and Commission Responses The Commission received sixteen letters of comment from interested persons.

Commenters included private corporations who hold or plan to acquire NRG licenses for nuclear facilities, the Nuclear Energy Institute, private counsel representing electric utilities and nuclear plant operating companies, a licensed nuclear power plant operator employed at a nuclear power station, the president of Local 369 of the Utility Workers Union of America representing workers at a nuclear power station, a citizens group, and an individual member of the public. Twelve of.

the Commenters expressed strong support for the proposed rule and provided specific comments and suggestions on particular provisions. Two Commenters; the individual member of the public and the citizens group, indicated strong but general opposition to the proposed Subpart M hearing process.

A review of the comments, not necessarily in the order received, and the Commission's responses follows:

Comments from individuals:

Comment 1.

Mr. Marvin Lewis, a member of the public, opposed the adoption of informal procedures for hearings on license transfer applications. Mr. Lewis's brief comment expressed concern that under the proposed procedures there will be no record upon which

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. findings of fact and conclusions of law may rest and that "general findings" will suffice to support a license transfer.

Commission response. The Commission believes the commenter has not fully understood the proposal. While the procedures do not allow discovery as such, there will be an extensive record consi.sting of the hearing transcript, exhibits, and all papers filed or issued in connecUon with the hearing. See §2.1317. The Presiding Officer will certify the completed hearing record to the Commission, which will then issue its decision on the issues raised in the hearing or request additional testimony and/or documentary evidence if it finds that additional evidentiary presentations are needed for a decision on the merits. See §2.1320. The Commission does not understand Mr. Lewis's reference to "general findings" in the context of this rulemaking. Before approving a license transfer the Commission must find that the transfer is in accordance with the provisions of the Atomic Energy Act (42 U.S.C. 2234). This finding will necessarily address the specifics of the transfer in question. Nothing in the rule alters the nature.

of the findings needed to support approval of a license transfer.

Comment 2. The Ohio Citizens for Responsible Energy ("OGRE") generally opposed the proposed rule. OGRE characterizes the Subpart M informal procedures as "a pro forma.

exercise" that in OCRE's view will not be adequate to deal with the complex inquiry that could arise in a license transfer proceeding. OGRE also objects to shortened filing times and to the requirement that common interests be represented by a single party. OGRE sees such provisions as "attempts to make life difficult for intervenors."

Commission response. For the reasons given in the notice of proposed rulemaking, the Commission believes that the Subpart M procedures will be both efficient and effective in dealing with the issues that license transfer application proceedings typi,cally involve. They are not "pro

8 forma" but in fact provide ample opportunity for the parties to raise appropriate issues and build a sound evidentiary record for decision. At the same time, the Commission recognizes that issues might arise that could require additional procedures. Therefore the rule explicitly provides that the Commission may use additional procedures or even convene a formal hearing "on specific and substantial disputes of fact necessary for the Commission's decision, that cannot be resolved with sufficient accuracy except in a formal hearing." See §2.1322(d). The rule thus provides sufficient flexibility to cope with extraordinary or unusual cases. For typical cases, however, a "streamlined hearing process" providing faster decision-making wi~hout loss of quality is a desirable objective. The shortened filing times and other provisions to which OCIRE objects are steps which make this streamlining possible. They are not selective attempts to burden intervenors. The Commission believes that all parties to a license transfer application p*roceeding will benefit from the use of the Subpart M procedures.

Comment 3.

Mr. David Leonardi, a licensed reactor operator, submitted a two-part comment "directed more to what is missing in the propos'ed rule rather than to what it contains."

First, Mr. Leonardi questioned the Commission's statement in the notice of proposed rulemaking that license transfers in general "do not involve... significant changes in personnel of consequence to the continued reasonable assurance of public health and safety." Mr. Leonardi called this "a dangerous assumption" and expressed his view that "significant losses of critical personnel must be anticipated and factored into the transfer decision." He suggested that the proposed rule "must require the applicant to submit a critical staff retention plan."

Second, with regard to the placement in the Public Document Room of documents pertaining to each license transfer application, §2.1303, Mr. Leonardi commented that he finds the Public Document Room d_ifficult to use. He indicated his preference for "a separate section

9 on the NRC web site for each proposed license transfer where all relevant documents and correspondence may be accessed."

Commission response. Mr. Leonardi is correct that if a significant loss and replacement of critical plant personnel can be anticipated as the result of a particular license transfer this might well be a reason not to approve the transfer or to condition the transfer on the maintenance of adequate technical qualifications. However, the Commission does not regard this observation as a reason for modifying this proposed rule, which deals with hearing procedures rather than with the substantive findings that must be made to support approval of a license transfer application. The commenter does not assert that the Subpart M procedures cannot deal adequately with the issue of technical qualifications of the applicant for license transfer, and the Commission perceives no potential inadequacy in this regard. The Commission continues to believe that personnel retention issues and technical qualifications of the applicant do not involve the type of technical questions bearing on the actual operation of a facility that may benefit from different hearing procedures. As for the commenter's suggestion that the rule should incorporate a requirement for a critical staff retention plan to be submitted by the applicant for the license transfer, the Commission finds that Subpart M, which deals primarily with hearing procedures, is not an appropriate place for such a substantive requirement. If, in a particular license transfer case, a need is identified for submission of a critical staff retention plan in order to address the applicant's technical qualifications, this matter can readily be addressed in the hearing process and can ultimately result in a condition on license transfer approval.

Turning to the matter of availability of license transfer application documents on the NRC web site, the Commission notes that the NRC is in the process of developing a new and comprehensive Agencywide Documents Access and Management System ("ADAMS").

Documents filed in a license transfer case after ADAMS becomes operational, probably in the

.,I second half of 1999, will be placed in the ADAMS public library. The public will be able to find relevant documents by using general search criteria such as docket numbers, case names, and subject topics. The details of how ADAMS will operate have yet to be fully worked out, but the Commission believes that this system will prove responstve to the commenter's concern.

In the meantime, the Commission notes that the NRC Public Document Room licensing files have worked quite well in the past and been readily available to members of the public who wish to obtain extensive information on pending licensing actions.

Comment 4. A comment by the president of Local 369, Utility Workers Union of America, representing 197 workers at a nuclear power station, acknowledged the need to streamline the hearing process but identified what the commenter perceived as potential problems with the proposed Subpart M procedures. In particular, the commenter was concerned about the Commission's expectation that the procedures will result in the issuance of a final Commission decision on a license transfer application within about six to eight months of notice of receipt of the application. The commenter said that "a process that proceeds too rapidly could compromise the Union's and the NRC's ability to obtain critical information about the license transferee." The Commission of course agrees that what the commenter calls "a rush to approval" could fail tC>

obtain adequate information about the transferee's experief"!ce and ability to manage the plant safely. The Commission notes, however, that the expectation of completing license. transfer proceedings in six to eight months applies to "routine cases." (63 FR. 48646, col. 2). Subpart M itself does not specify or limit the substantive questions which must be addressed in license transfer proceedings. If difficult issues arise in unusual cases, they will be dealt° wit_h as sound decisionmaking requires, even if this requires a greater time commitment than routine cases.

The Commission's aim in adopting the Subpart M procedures is to provide an efficient and

11 effective hearing process and a structure for compiling a decision record in a timely manner, not a *hurried one.

The commenter also expressed concern that the Union not be denied the opportunity to participate in license transfer hearings. The new Subpart M does not alter the Commission's usual requirement for standing to intervene in a proceeding that a person show an interest which may be affected by the outcome of the proceeding. By showing an interest (within the "zone of interests" of the relevant statutes) which may be affected by the Commission's action on an application for license transfer, any person or organization may participate as of right. See

§2.1306(a). Under current agency case law, the Commission may also allow discretionary intervention to a person who does not meet standing requirements, where there is reason to believe the person's participation will make a valuable contribution to the proceeding and where a consideration of the other criteria on discretionary intervention shows that such intervention is warranted.

Comments by or on behalf of members of the nuclear energy industry:

Comment 5. The Nuclear Energy Institute ("NEI"), an organization representing utilities licensed to operate commercial nuclear power plants in the United States, nuclear materials licensees, and other organizations and individuals involved in the nuclear industry, submitted a.

comment on behalf of its members. NEI supports as a "very positive development" the use of.

informal rather than formal trial-type procedures for consideration of license transfer applications.

NEI suggests the goals of the rule can be furthered by the following proposed clarification:

"Where the proposed change only involves a transfer of ownership of all or a portion of the facility, both NRC staff review and the Subpart M proceeding should be limited solely to the capability of the transferee to meet financial qualifications and decommissioning funding

12 requirements." Several comments by individual members of the nuclear energy industry or their representatives endorsed the comments of NEI.

Commission response. The Commission does not accept NEl's proposed clarification.

The Commission observed in the Notice of Proposed Rulemaking that "typical staff review consists largely of assuring that the ultimately licensed entity has the capability to meet financ:;ial qualification and decommissioning funding aspects of NRC regulations," (63 FR 48644, col.~\.

(emphasis added)). But financial qualification and decommissioning funding are not the sole issues that may bear on a license transfer approval, even when the transfer will change only the ownership of all or part of a facility and will not directly affect management or operation. Section 103d of the Atomic Energy Act, 42 U.S.C. 2133, for example, places certain restrictions on foreign ownership, control, or domination of certain licenses. Consideration of the question whether a proposed license transfer is consistent with this provision of the Act would require a broader scope for the proceeding than the limited one NEI recommends. Generally, the Commission believes it is desirable to focus its Subpart M rulemaking solely on procedures rather than attempting in this rulemaking to describe and enumerate the substantive issues that license transfers may involve.

Comment 6. The Southern California Edison Company ("SCE") stated its strong support for the proposed rule. SCE supported the comments submitted by the Nuclear Energy Institute, which the Commission has already addressed in the re~ponse to Comment 5, supra. SCE also offered suggestions for "minor enhancements" to the proposed rule, which the Commission addresses in its response *to this comment.

Commission response. Change (1) suggested by SCE is that the rule should give the Presiding Officer, in addition to the power to "strike or reject duplicative or irrelevant

13 presentations," §2.1320(a)(9), the responsibility and power to strike or reject unreliable or immaterial presentations. As the commenter points out, this change would make Subpart M similar in this regard to 10 CFR Part 2, Subpart L, Informal Hearing Procedures for Adjudications in Materials and Operator Licensing Proceedings, which gives the presiding officer the power to strike portions of a presentation that are "cumulative, irrelevant, immaterial, or unreliable."

(10 CFR 2.1233(e)). The Commission agrees that unreliable and immaterial presentations detract from the value of the record and should be subject to exclusion in the sound discretion of the Presiding Officer. Therefore the Commission accepts this suggestion and has revised

§2.1320(a)(9) accordingly in the final rule.

Change (2) suggested by SCE deals with responses to papers served by mail. SCE notes that proposed §2.1314(c) provides for three additional days to respond to papers served pursuant to §2.1307 by regular mail. SCE suggests that three additional days for mail service should be allowed for all responses to.service of a paper, not just those made pursuant to

• §2.1307. The Commissiqn accepts this suggestion and has revised §2.1314(c) accordingly in the final rule.

Change (3) suggested by SCE is that proposed §2.1331 (b) be clarified to make plain that the Commission may consider other information on the docket when it decides matters that were not designated as issues for the hearing.. The Commission agrees and has adopted the language proposed by SCE for §2.1331 (b) in the final rule: "The decision on issues designated for hearing pursuant to §2.1308(d)(1) will be based on the record developed at the hearing."

Comment 7. Florida Power & Light Company ("FPL") submitted a comment endorsing the comments of the Nuclear Energy Institute, which the Commission has already addressed in the

14 the context of its response to comment 5, supra. FPL concurred with the Commission's findings in support of the proposed Subpart M and offered the following additional suggestions:

(1) FPL suggested that the Commission should extend the informal hearing process 110 all NRC adjudicatory*proceedings.

Commission response. Although the suggestion goes well beyond the scope of the proposed rule, the Commission notes elsewhere in this *notice that it has argued in court that section 189a of the Atomic Energy Act does not require formal hearings, and the Commission has directed the staff to seek legislation that supports greater use of informal procedures. The Commission has also asked the staff to advise the Commission on ways to enhance the Commission's ability to use informal procedures in any proceeding in which formal procedures are currently used.

(2) FPL supported close Commission oversight of the Presiding Officer but believed that the Commissioners should not personally be involved, as the proposed Subpart M envisions, in developing the evidentiary record in license transfer application proceedings.

Commission response. Under the proposed rule the Commission will ordinarily be the Presiding Officer at a hearing," but the Commission "may provide... that one or more Commissioners, or any other person permitted by law, may preside." See §2.1319. The Commission believes this language provides sufficient flexibility to deal with the commenter's concerns, should the Commission perceive that its direct involvement in Subpart M hearings is in some cases unduly burdensome or impractical for the Commission.

(3) FPL stated its belief that allowing all parties to make oral presentations in every license transfer proceeding "could defeat the underlying purpose of the proposed rule: to streamline license transfer proceedings." Comments by several other members of the nucle1ar energy industry or their representatives questioned the proposed rule's provision that hearin!~S

15 shall be oral unless all parties agree to a hearing on written submissions. These Commenters recognized the Commission's intention to avoid delays caused by_ a need to consider a party's request that a hearing be oral-that is, the Commission intends to avoid needless nonsubstantive "litigation" over the form (oral or written) of the litigation on the merits-- but noted that there are alternative ways to avoid these delays. Two Commenters suggested that the Commission could provide that hearings will be on written submissions unless any party requests an oral hearing.

Commission response. Under the proposed Subpart M oral hearings are the "default choice" in that it provides for oral presentations unless all parties agree to a written hearing.

Under the proposed scheme if the parties take no action the hearing will be oral, and only unanimous action of the parties in favor of a written hearing will cause oral procedures to be supplanted. The Commenters' suggested alternative that the hearing be written unless a party requests an oral hearing would turn this around and make a written hearing the default choice.

The Commission prefers to retain the approach taken in the proposed rule. The Commission believes that oral presentations with the structure established by Subpart M may allow for the compilation of a better record because the Presiding Officer can more readily ask follow-up or clarifying questions. A strictly written hearing is likely to prove more cumbersome in this regard.

Furthermore, members of the public attending oral proceedings will be able to follow the hearing more readily than by combing through extensive written materials in the Public Document Room as they would be required to do in a written hearing context. Accordingly, the Commission does not accept the commenter's proposed alternative.

(4) FPL noted its support of Commission action to ensure timely completion of license transfer proceedings but recommended "that the final rule specifically require automatic Commission review in the event that any of the schedular 'milestones' are exceeded by a Presiding Officer."

16 Commission response. Although the Commission intends to monitor these proceedings carefully and will be fully prepared to step in to address schedular problems when necessary, the Commission is not prepared to require by regulation, and bind itself to, a review of every instance in which a Presiding Officer exercises discretion to enlarge the time provided in the rule for filings or other actions.

• In view of the Commission's recent Policy Statement on Conduct of Adjudicatory Proceedings, 48 NRC 18 (1998), (63 ~R 41872; August 5, 1998), the Commission is confident that persons serving as Presiding Officers will be highly sensitive to the need for.

• expeditious completion of adjudicatory proceedings, consistent with considerations of fairness and the production of an adequate record, and will countenance delays only for compelling reasons. The Commission of course retains discretion to take such action in individual proceedings as it deems necessary to assure timeliness and adherence to all other Commission requirements that govern the hearing process.

Comment 8. Texas Utilities Electric Company ("TU Electric") expressed support for the proposed rule. TU Electric also offered many of the suggestions put forward in the comments already described. In addition, TU Electric expressed concern that the reference in proposed

§2.1330(b) to 10 CFR 2. 790, which is in Subpart G, might convey an implication that other Subpart G procedures also apply in Subpart M proceedings.

Commission response. To allay the commenter's concern, the Commission has modified

§2.1330(b) in the final rule by replacing the language "under 10 CFR 2.790" with the language "in accordance. with law and policy as reflected in 10 CFR 2. 790... " The intent of this modification is to remove any possible implication that Subpart G is intended to apply to license transfer actions.

17 Comment 9. AmerGen Energy Company, LLC ("AmerGen") commented that it favored the proposed rule and urged its prompt adoption. AmerGen also suggested that the Commission should apply the proposed Subpart M procedures, at the request of an applicant, in any license transfer application proceedings that may be undertaken* before the final Subpart M becomes effective. In AmerGen's opinion, the NRC has authority under the Atomic Energy Act and the Administrative Procedure Act to use the Subpart M procedures on a case-by-case basis, prior to finalization of the rule, so long as the Commission provides fair notice to the potential parties.

Commission response. For reasons discussed elsewhere in this notice, the Commission is making this rule effective upon publication, pursuant to the provisions of the Administrative Procedure Act for immediate effectiveness. 5 U.S.C. 553(d)(1) and 553(d)(3). Any applications received but not yet noticed as of the effective date of this rule will be subject to Subpart M procedures. In the case of license transfer applications, if any, that have been noticed and for which proceedings are pending as of the date of this notice of final rulemaking, affected applicants or parties to such proceedings who wish to avail themselves of the new procedures may file motions with the Presiding Officer in those proceedings, requesting that Subpart M procedures be applied as appropriate to the remainder of the pending proceeding.

Comment 10. Morgan, Lewis, & Beckius, a private law firm commenting on behalf of Alliant Utilities-lES Utilities and STP Nuclear Operating Company, endorsed the comments of NEI (see Comment 5, supra) in support of the rule. The commenter also made several suggestions for changes.

Commission response. The changes suggested by this commenter are similar to suggestions made in other comments described and responded to in the preceding discussion.

18 Comment 11. Shaw, Pittman, Potts & Trowbridge ("Shaw Pittman"), a private law firm commenting on behalf of itself and several utilities, strongly supported the proposed rule. Shaw

.Pittman believed, however, that several aspects of the rule require "clarification and refinemeint."

These aspects, together with the Commission's response, are as follows:

(1) Shaw Pittman expressed concern that the rule does not identify the circumstance,s that would permit the NRC Staff to delay the approval or denial of a license transfer request pending any requested hearing." The commenter noted that proposed §2.1316(a) says that during the pendency of a hearing under Subpart M the staff is expected to promptly issue approval or denial of license transfer requests." The commenter believed that the final rule or its statement of consideration "should describe the circumstances or the factors that the NRC Staff are to consider in deciding whether to postpone approval or denial of a transfer pending a requested hearing."

Commission response. The Commission does not accept this suggestion. As noted previously (see response to Comment 5), the scope and focus of the Subpart M rulemaking are on procedures for the conduct of hearings, rather than the substantive questions involved in approval of license transfer applications. The Commission is confident that the present language of §2.1316(a) adequately conveys to the NRC staff that staff action on license transfer requests should not be delayed except for sound reasons. The Commission relies on the staff, subject to Commission oversight, to exercise good judgment in this regard. As the rule indicates, the Commis~ion believes _that staff approval or denial can usually be issued promptly, but it would be unwise for the Commission at this point to attempt to anticipate all the circumstances that might warrant delay in the staff's review or action on the application.

(2) Shaw Pittman commented that the Commission "should clarify the evidentiary value of written position statements and oral presentations allowed under the present rule." The

19 commenter would have the rule specify that the Commission cannot base a decision on "written position statements and oral presentations, in and of themselves." The commenter would require parties to document and support their positions by written testimony with supporting affidavits.

Commission response. The Commission does not believe that extensive clarification is necessary. Setting out evidentiary requirements in more detail could be at variance with the Commiss_ion's. intention to move away from time-consuming formality in its hearing processes. In making a decision based on the record produced in a Subpart M proceeding, the Commission will of course take proper account of the evidentiary value of the record material. Written statements of position and oral arguments will be treated as such statements arid arguments are treated in the NRC's formal adjudications under Subpart G and informal proceedings under Subpart L,~-

as arguments and positions of the parties but not as facts. Factual assertions unsupported by affidavits, expert testimony, or other appropriate evidentiary submissions are less likely to carry weight than assertions with proper evidentiary support.

(3) Shaw Pittman urged the Commission to revise the proposed rule expressly to allow parties to submit proposed questions to the Presiding Officer within seven days of the filing of rebuttal testimony. The commenter noted that under the proposed rule, rebuttal testimony and proposed questions for the Presiding officer to ask witnesses in the Presiding Officer's examination are to be filed at the same time. See §2.1321 (b) and §2.1322(a)(2). Thus, there is no explicit provision for proposing questions directed to the rebuttal testimony itself, although the Presiding Officer has the discretion to provide for such questions. The commenter believed that the timeframe of the rule would reasonably allow for this additional filing without extending the date for commencement of the oral hearing beyond 65 days after the date of the Commission's notice granting a hearing.

I.

I I

20 Commission response. The Commission finds the commenter's point well-taken and has placed language in the final rule to authorize proposed questions directed to rebuttal testimony to be filed within seven days of the filing of the rebuttal testimony.

(4) Shaw Pittman finds confusing the language of proposed 10 CFR 2.1323(a) that "[a)II direct testimony in an oral hearing shall be filed no later than 15 days before the hearing.... " The commenter believes this language "could arguably be read to allow the filing of direct testimony subsequent to the 30 day deadline provided for by proposed 10 CFR 2.1322(a)(1 )."

Commission response. The Commission does not see any reason for confusion. To be timely the filings in question must be made within 30 days after the date of the Commission's notice granting a hearing [§2.1322(a)] but in any event no later than 15 days before the hearing

[§2.132°3(a)]. There is no potential contradiction between the two provisions. Rather than being an unnecessary provision, as the commenter asserts, §2.1323(a) assures that parties will rec1~ive filings in adequate time to prepare for the oral hearing.

(5) S~aw-Pittman asked that the Commission clarify in its promulgation of the final rule:

the extent to which license transfer applications filed before the effective date of the rule will be subject to the new Subpart M procedures. The commenter favored making the new rule immediately effective and applying the Subpart M procedures to pending applications.

Commission response. See the Commission's response to Comment 9.

Comment 12. GPU Nuclear stated its strong support for the rule and recommended that the new procedures be applied as soon as possible.

Commission response. See the Commission's response to Comment 9.

21 Comment 13. Duke Energy Company ("Duke"), represented by Winston & Strawn, supported the proposed rule but expressed concern about the elimination of cross-examination by parties under Subpart M. Duke stated that "the final rule should retain provisions allowing the parties to present recommended questions to the presiding officer." Duke commented that the final rule "should define with greater precision the types of issues appropriate for review... " and suggested limiting the proceedings to issues associated with financial qualifications and decommissioning funding: Duke also commented th2~ the final rule should explicitly grant parties to a contested license transfer hearing the right to appeal an adverse decision by the Commission. Duke suggested that the informal, legislative-style hearing process should be extended to other NRC adjudicatory proceedings.

Commission response. The proposed Subpart M rule provides for parties to submit proposed questions to the Presiding Officer. This will allow the parties to suggest what they believe to be appropriate questions for the witnesses but will allow the Presiding Officer better control of the examination of witnesses. This provision should effectively eliminate the need for objections and interruptions during witness examination. For these reasons the Commission has retained the proposed procedure in the final rule. The Commission rejects the commenter's suggestion that the rule should define and limit the issues appropriate for review, for reasons already discussed in previous responses to similar comments. The Commission also sees no point in addressing statutory appeal rights in the final rule. A party's right to judicial review of an adverse decision is set out in Section 189b. of the Atomic Energy Act in conjunction with Chapter 158 of title 28, United States Code, and the Administrative Procedure Act. Extension of the proposed procedures for license transfer applications to other types of NRC proceedings is beyond the scope of this rulemaking, but, as noted in more detail in response to an earlier

22 comment, the Commission is taking steps to expand the use of similar procedures in other

_proceedings.

Comment 14. PECO Nuclear noted its view that the proposed rule is "a positive step.. "

The commenter suggested several minor changes in words and punctuation needed to clari*fy the text of the rule.

Commission response. The Commission has incorporated in the final rule the commenter's suggested minor changes, which do not affect the substance of the rule.

Comment 15. Wisconsin Electric Power Company supported the Commission's proposed rule and suggested certain "clarifications and refinements."

Commission response. The commenter's suggestions do not differ in substance from suggestions made by other commenters that the Commission has responded to above.

Other Comments.

Members of the NRC staff in Office of Nuclear Materials Safety and Safeguards submitted a comment asking that it be made clear that the proposed Subpart M applies to license transfers under 10 CFR Part 72 and that applications for transfers under Part 72 be noticed in the Federal Register pursuant to §2.1301 (b ).

Commission response. The proposed rules were intended to apply to all license transfer applications, including those filed under Part 72. To make this clear, the Commission has included explicit references to Part 72 in this statement of consideration for the final rule. Th13 Commission has also modified §2.1301 (b) to list transfer applications under Part 72 as one of the class of applications that will be noticed in the Federal Register.

23 Ill. Description of Final Rule The procedures adopted in this rulemaking cover any direct or indirect license transfer for which NRG approval is required pursuant to the regulatory provisions under which the license was issued. NRG regulations and the Atomic Energy Act require approval of any transfer of control of a license. See AEA, Sec. 184, 42 U.S.C. 2234. This includes those transfers that require license amendments and those that do not. It should be recognized that not all license transfers will require license amendments. For example, the total acquisition of a licensee, without a change in the name of the licensee, (e.g., through the creation of a holding company which acquires the existing licensee but which, beyond ownership of the licensee, does not otherwise affect activities for which a license is required), would require NRG approval, but would not necessarily require any changes in the NRG license for the facilities owned by the licensee.

I These procedures do not expand or change the circumstances under which NRG approval of a transfer is necessary nor do they change the circumstances under which a license amendment would be required to reflect an approved transfer. Amendments to licenses are required only to the extent that ownership or operating authority of a licensee, as reflected in the license itself, is changed by a transfer. A discussion of the process for issuing amendments

. associated with an approved transfer, when necessary, is provided below.

The procedures, similar to those used by the Commission in cases involving export licensing hearings under 10 CFR Part 110, provide for an informal type hearing for license transfers. These procedures provide opportunities for meaningful public participation while

24 minimizing areas where a formal adjudicatory process could introduce delays without any commensurate benefit to the substance of the Commission's decisionmaking.

The Commission will either elect to develop an evidentiary record and render a final decision itself, or will appoint a Presiding Officer who will be responsible for collecting evidenc:e and developing a record for submission to the Commission. For such proceedings, the Commission may appoint a Presiding Officer from the Atomic Safety and Licensing Board Panel (ASLBP), although the proposed regulations do not restrict the sources from which the Commission may select.

It should be noted that the regulations do not require the NRC staff to participate in the proceedings as a formal party unless the Commission directs the use of Subpart G procedures or otherwise directs the staff to participate as a party. The Commission expects, nevertheless, that, in most cases, the NRC staff will participate to the extent that it will offer into evidence staff's Safety Evaluation Report that supports its conclusions on whether to initially grant or deny th,~

requested license transfer and provide one or more appropriate sponsoring witnesses. Greater NRC staff involvement may be directed by the Commission on its own initiative or at the staff's choosing, as circumstances warrant.

One aspect of the rule designed to *improve efficiency is the decision to require oral hearings on all transfers where a hearing is to be held under Subpart M, with very limited exceptions. It has been the Commission's experience in Subpart L proceedings that intervenors

• are particularly interested in having the opportunity to make oral presentations or arguments for

25 inclusion in the record. Even though such requests are rarely granted, 1 intervenors can and do introduce the issue of whether to have oral presentations in individual proceedings. Rather than have the issue of oral presentations become a point of contention in individual proceedings (which could introduce unnecessary delays in completing the record) the rule resolves this concern by ensuring that all parties have the opportunity to present oral testimony: The question of whether cross examination of witnesses should be allowed has also led to arguments in Subpart L proceedings. 2 The Commission has addressed,this area of potential dispute by providing in Subpart M for questioning of witnesses only by the Presiding Officer. Although only the Presiding Officer may question witnesses, the rule specifically provides parties the opportunity to present recommended questions to the Presiding Officer.

Another aspect of the rule intended to improve the efficiency of the adjudicatory process is that, while it does not provide for any separate discovery, it does require that a Hearing Docket containing all relevant documents and correspondence be established and be made available at the Commission's Public Document Room. This approach is in keeping with establishment of a case file as described in the Commission's recent Statement of Policy on Conduct of Adjudicatory Proceedings, CLl-98-12 (63 FR 41872; August 5, 1998).

Finally, to improve* the efficiency of the adjudicatory process the rule imposes schedular milestones for the filing of testimony and responses and for the commencement of oral hearings.

Subject to the Presiding Officer's scheduling adjustments in partic~lar proceedings, the 1Curators of the University of Missouri, CLl-95-1, 41 NRC 71120 (1995) 21d.

26 procedures require initial testimony, statements of position on the issues, and responsive testimony to be filed within 50 days of the Commission's decision to grant a request for a hearing.

The hearing will commence in just over two months from the Commission's decision to hold a hearing. Assuming that the NRC staff is able to complete its technical review and take initial action on the transfer application within three to four months of its notice of receipt of the application, these procedures are expected to result in the issuance of a final Commission decision on the license transfer within about six to eight months of the notice of receipt of the application in routine cases. Complex cases requiring more extensive review or the use of different hearing procedures may take more time.

Administrative License Amendments Associated With License Transfers As discussed above, not all license transfers require license amendments. Only when the license specifically has references to entities or persons that no longer are accurate following the approved transfer will a situation exist that requires amendments to the license. Such amendments are essentially administrative in nature. That is, in determining whether to approve such amendments, the only issue is whether the license amendment accurately reflects the approved transfer. Substantive issues regarding requests for a.hearing on the appropriateness of the transfer itself may only be considered using the procedures in this rule. The Commission has previously noted that issuance of such an administrative amendment, following thereview and approval of the transfer itself, "presents no safety questions and clearly involves no

• significant hazards considerations." Long Island Lighting Company, supra, 35 NRC at 77, n.fi.

27 Safety Evaluation Reports (SERs) prepared in connection with previous license transfers confirm that such transfers do not, as a general matter, have significant impacts on the public health and safety. Accordingly, the new regulations provide that conforming amendments to the license may be issued by the NRC staff at any time after*the staff has reviewed and approved the proposed transfer, notwithstanding the pendency of any hearing under the proposed Subpart M.

As is done currently, NRC staff approval of a transfer application will take the form of an order.

Such order will also identify any license amendment issued.

The Commission, through this rulemaking, is making a generic finding that, for purposes of 10 CFR 50.58(b)(5), 50.91 and 50.92, and 72.46 and 72.50, administrative amendments which do no more than reflect an approved transfer and do not directly affect actual operating methods and actual operation of the facility do not involve a "significant hazards consideration" or a "genuine issue consideration," respectively, and do not require that a hearing opportunity be provided prior to issuance. It must be emphasized that any post-effectiveness hearing on such administrative amendments will be limited to the question of whether the amendment accurately reflects the approved transfer. The Commission does note, however, that it retains the authority, as a matter of discretion, to direct completion of hearings prior to issuance of the transfer approval and any required amendments in individual cases and to direct the use of other hearing procedures, if the Commission believes it is in the interest of public health and safety to do so.

28 Environmental Issues The NRG staff has completed many Environmental Assessments related to license transfers. These assessments have uniformly demonstrated that there are no significant environmental effects from license transfers. Indeed, as the Commission has noted previously, amendments effectuating an approved transfer present no safety questions and involve no significant hazards considerations.3 Accordingly, the Commission has determined that a new categorical exclusion should be added to 10 CFR Part 51 which will obviate the need for the NRG staff to continue to conduct individual Environmental Assessments in each transfer case.

Limitation to License Transfers The Commission wishes to emphasize that the proposed rules address only license transfers and associated administrative amendments to reflect transfers. Requests for licens1~

amendments that involve changes in actual operations or requirements directly involving healfth and safety-related activities will continue to be subject to the amendment processes currently in use in Parts 50 and 72, including the requirement for individualized findings under 10 CFR 50.58, 50.91 and 50.92 that address the necessity for pre-effectiveness hearings.

3Long Island Lighting Company, supra, 35 NRC at 77, n. 6.

29 Basis for Immediate. Effectiveness The Commission has determined that this rule should become immediately effective upon publication. The Administrative Procedure Act relieves *the agency of the requirement that publication of a substantive rule be made not less than thirty days before its effective date in the case of "a substantive rule which... relieves a restriction" or "as otherwise provided by the agency for good cause found and published with the rL:!e.". 5 U.S.C. 553(d)(1) and 553(d)(3).

The purpose of the thirty-day waiting period "is to give affected parties a reasonable time to adjust their behavior before the final rule takes effect." Omnipoint Corp. v. F.C.C., 78 F. 3d 620 (D.C. Cir. 1996). The rule deals primarily with procedures that will be used in future hearings on applications for license transfers. The rule adds no burden to the conduct of activities regulated by the NRC. Thus there is no need for NRC licensees or anyone else "to adjust their behavior" to achieve compliance with the rule. Moreover, comments by persons most likely to be affected by the rule (potential applicants) appear to favor the rule and its prompt implementation. The Commission therefore finds there is good cause to make this rule immediately effective.

Alternatively, the Commission notes that the rule in effect "relieves a restriction" in that the hearing process established by Subpart M should be less burdensome for parties to license transfer proceedings than the procedures which the Commission has previously by practice applied.

Thus the Commission's decision to dispense with the thirty day waiting period is also supported by 5 U.S.C. 553(d)(1).

Finding of No Significant Environmental Impact and Categorical Exclusion

30 The Commission has determined under the National Environmental Policy Act (NEPA) of 1969, as amended, and the Commis.sion's regulations in Subpart A of 10 CFR Part 51, that this rule falls within the categorical exclusion appearing at 10 CFR 51.22 (c)(1) for which neither aIn Environmental Assessment nor an Environmental Impact Statement is required.

Further, under its procedures for implementing NEPA, the Commission may exclude from preparation of an environmental impact statement,* or an environmental assessment, a categc>ry of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in NRC proceedings. In this rulemaking, the Commission finds that the approval of a direct or indirect license transfer, as well as any required administrative license amendments to reflect the approved transfer, compriseis a category of actions which do not individually or cumulatively have a significant effect on the human environment. Actions in this category are similar in that, under the AEA and Commiss;ion regulations, transfers of licenses (and associated administrative amendments to licenses) will not in and of themselves permit the licensee to operate the facility in any manner different from that which has. previously been permitted under the existing license. Thus, the transfer will usually not raise issues of environmental impact that differ from those considered in initial licensing of a facility. In addition, the denial of a transfer would also have in and of itself no impact on the environment, since the licensee would still be authorized to operate the facility in accordance with the existing license.

Environment assessments that have been conducted regarding numerous license transfers under existing regulations have not demonstrated the existence of a major federal.

action significantly affecting the environment. Further, the final rule does not apply to any request

31 for an amendment thatwould directly affect the actual operation of a facility. Amendments that directly affect the actual operation of a facility would be subject to consideration pursuant to the existing license amendment processes, including the requirements in 10 CFR Part 2, Subpart G or Las appropriate and applicable environmental reviewrequirernents of 10 CFR Part 51.

Paperwork Reduction Act Statement The final rule does not contain a new or amended,information collection requirement subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et. seq.). Existing requirements for 10 CFR Part 51 were approved _by the Office of Management and Budget, approval number 3150-0021.

Public Protection Notification If an information collection does not display a currently valid 0MB control number, the NRC may not conduct or sponsor, and a person is not required to respond to, the information collection.

Regulatory Analysis

• To determine whether the amendments to 10 CFR Part 2 contained in this final rule were appropriate, the Commission considered the following options:

1.

The No-Action Alternative

32 This alternative was not deemed acceptable for the following reasons. First, this option would leave reactor transfers subject to past practice which generally involved hearings usin~J multi-member, multi-disciplined licensing boards, even though such transfers do not involve the type of complex technical questions for which multi-member boards of diverse background may provide a useful technical pool of experience.

• Second, the formal adjudicatory hearing process would needlessly add formality and resource burdens to the development of a record for reaching a decision on applications for transfer approval without any commensurate benefit to the public health and safety or the common defense and security.

Third, the current process for materials licensees under 10 CFR Part 2, Subpart L, while not utilizing the multi-member licensing boards, does not necessarily result in uniform treatment of all license transfer requests, and provides at least the potential for more formal hearings. Even if the requests for more formal procedures are not granted in typical materials cases, the pro1:::ess of receiving motions for more formal procedures, allowing responses from all parties to those, requests, and the need for parties' responses to those requests, and the need for the Presiding Officer to consider and rule on such requests introduces issues and litigation on matters not involving the merits of the particular application and thus introduces the potential for delays in materials license transfer proceedings, without clear benefit to the public health and safety 01* the common defense and security.

2.

Use 10 CFR Part 2; Subpart G for All License Transfers

33 While assuring uniformity for all license transfer requests, this option would not result in an expeditious process that would avoid the use of multi-member licensing boards, which is unnecessary given the nature of typical transfer applications. It would also result in added formality and resources being devoted to materials license transfers on the part of all parties to the hearing, without any resulting benefit to public health and safety.

3.

Use of 10 CFR Part 2, Subpart L for All License Transfers This option was considered as viable to achieve uniformity and to avoid the need for multi-member licensing boards for conducting requested hearings. Subpart L provides for paper hearings unless oral presentations are ordered by the Presiding Officer. Further, Subpart L allows the Presiding Officer the option of recommending to the Commission that more formal procedures be used. Even though such requests are rarely granted, as a practical matter there are delays in the proceeding while parties petition the Presiding Officer and/or the Commission to have oral hearings and to use additional procedures, such as cross-examination and formal discovery. Such discretion in structuring individual hearings is appropriate where the breadth of potential actions and licensees (covering essentially all amendments for a wide variety of materials licensees) is governed by a single hearing process. This flexibility, however, inevitably leads to delays as each party to the hearings proposes and presents arguments to the Presiding Officer concerning how the hearing should be structured.

4.

Use of a New Subpart M for all License Transfers In the case of license transfer applications the Commission is concerned with only one type of approval, so the Commission has the ability to resolve through rulema~ing many of these procedural points concerning the conduct of the hearing. The resolution of these issues will allow

34 the parties in license transfer proceedings to move expeditiously to examination of the_

substantive issues in the proceeding. The Subpart M process, similar to a legislative-type hearing, will also result in the record promptly reaching the Commission, where a final agency determination can be made. The rule dictates that oral hearings be held on each application for which a hearing request is granted unless the parties unanimously agree to forgo the oral hearing. This will remove the potential for a delay while parties petition the Presiding Officer for an oral hearing. Further, the rule provides that the Presiding Officer will conduct all questioning of witnesses, and there are no provisions for formal discovery, although docket files with relevant materials will be publicly available. The rule resolves several areas of frequent dispute in subpart L proceedings and was seen, therefore, as being more appropriate for license transfer proceedings where a timely decision is important to the public interest. These efficiencies can be achieved without any negative effect on substantive decisonmaking or the rights of all parties to present relevant witnesses, written testimony, and oral arguments, which should result in a hi!~h quality record on substantive issues for use by the Commission in reaching a decision on contested issues.

5.

Conclusion.

Based on the foregoing considerations, the Commission has decided to adopt Subpart M and the attendant conforming amendments to provide the procedures.for actions on license transfer applications. This constitutes the NRC's regulatory analysis.

Regulatory Flexibility Certification

35 In accordance with the Regulatory Flexibility Act of 1980, 5 U.S.C. 605(b), the Commission hereby certifies that this rule will not have a significant economic impact on a substantial number of small entities. This rule does not change any requirements for submittal of license transfer requests to NRG, rather, the procedures designate how NRG will handle requests for hearings on applications for license transfers. Most requested hearings on license transfer applications involve reactor licensees which are large organizations which do not fall within the definition of a small business found in section 3 of the Small Business Action, 15 U.S.C. 632, or within the Small Business Standards set forth in 13 CFR Part 121 or in the size standards adopted by the NRG (1 o CFR 2.810). Based on the historically low number of requests for hearings involving materials licensees, it is not expected that this rule will have any significant economic impact on a substantial number of small businesses.

Backfit Analysis The NRG has determined that the backfit rule, 1 0 CFR 50.109 and 72.62, does not apply to this proposed rule and a backfit analysis is not required, because these amendments do not involve any provisions that would impose backfits as defined in either 1 0 CFR 50.109 or 72.62.

The rule does not constitute a backfit under either of these sections because it does not propose a change to or additions to requirements for existing structures, systems, components, procedures, organizations or designs associated with the constn.iction or operation of a facility under Part 50 or 72.

Small Business Regulatory Enforcement Fairness Act

---

~-----------*

36 In accordance with the Regulatory Enforcement Fairness Act of 1996, the NRC has determined that this action is not a major rule and has verified this determination with the Office of Information and Regulatory Affairs of 0MB.

List of Subjects 10 CFR Part 2 Administrative practice and procedure, Antitrust, Byproduct material, Classified information, Environmental protection, Nuclear materials, Nuclear power plants and reactors, Penalties, Sex discrimination, Source material, Special nuclear material, Waste treatment and disposal.

10 CFR Part 51 Administrative practice and procedure, Environmental impact statement, Nuclear materials, Nuclear power plants and reactors, Reporting and record keeping requirements.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and 5 U.S.C. 5E;2 and 553, the Nuclear Regulatory Commission is adopting the following amendments to 10 CFR Parts 2 and 51:

PART 2 - RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS

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

I I

37 Authority: secs. 161, 181, 68 Stat. 948, 953, as amended (42 U.S.C. 2201, 2231 ); sec. 191, as amended, Pub. L.87-615, 76 Stat. 409 (42 U.S.C. 2241); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); 5 U.S.C. 552.

Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104, 105, 68 Stat. 930, 932, 933,935,936,937,938, as amended (42 U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 2135);

sec. 114 (f); Pub. L.97-425, 96 Stat. 2213, as amended (42 U.S.C. 10143 (f)); sec. 102, Pub. L.91-190, 83 Stat. 853, as amended (42 U.S.C. 4332); sec. 301, 88 Stat. 1248 (42 U.S.C. 5871).

Section 2.102, 2.103, 2.104,2.105, 2. 721 also issued under secs. 102, 103, 104, 105, 183i 189,68 Stat. 936, 937, 938, 954, 955, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2233, 2239). Section 2.105 also issued under Pub. L.97-415, 96 Stat. 2073 (42 U.S.C. 2239).

Sections 2.200-2.206 also issued under secs. 161 b, i, o, 182, 186, 234, 68 Stat. 948-951, 955, 83 Stat. 444, as amended (42 U.S.C. 2201 (b), (i), (o), 2236, 2282); sec. 206, 88 Stat 1246 (42 U.S.C. 5846). Sections 2.205 U) also issued under Pub. L. 101-410, 104 Stat. 90, as amended by section 3100 (s), Pub. L. 104-134, 110 Stat. 1321-373 (28 U.S.C.2461 note). Section 2.600-2.606 also issued under sec. 102, Pub. L.91-190, 83 Stat. 853, as amended (42 U.S.C. 4332).

Section 2.700a, 2.719 also issued under 5 U.S.C. 554. Sections 2.754, 2.760, 2.770, 2.780 also issued under 5 U.S.C. 557. Section 2.764 also issued under secs. 135, 141, Pub. L.97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). Section 2.790 also issued under sec. 103, 68 Stat.

936, as amended (42 U.S.C. 2133) and 5 U.S.C. 552: Sections 2.800 and 2.808 also issued under 5 U.S.C. 553, Section 2.809 also issued under 5 U.S.C. 553, and sec. 29, Pub. L.85-256, 71 Stat. 579, as amended (42 U.S.C. 2039). Subpart K also issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239); sec. 134, Pub. L.97-425, 96 Stat. 2230 (42 U.S.C. 10154). Subpart L also issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239). Subpart M also issued under sec. 184 (42 U.S.C. 2234) and sec. 189, 68 Stat. 955 (42 U.S.C. 2239). Appendix A also issued under sec. 6, Pub. L.91-560, 84 Stat. 1473 (42 U.S.C. 2135).

2. In §2.101, paragraph (a)(1) is revised to read as follows:

§2.101 Filing of application.

(a)(1) An application for a license, a license transfer, or an amendment to a license shall be filed with the Director of the Office of Nuclear Reactor Regulation or Director of the Office of Nuclear Material Safety and Safeguards, as prescribed by the applicable provisions of this chapter. A prospective applicant may confer informally with the NRC staff prior to the filing of an application.

38

3. In §2.1103, after the final sentence the following sentence is added to read as follciws:

§2.1103 Scope.

This Subpart shall not apply to proceedings on applications for transfer of a license issued under Part 72. Subpart M applies to license transfer proceedings.

4. In §2.1201, paragraph (a)(1) is revised to read as follows:

§2.1201 Scope of subpart.

(a)* * *

(1) The grant, renewal or licensee-initiated amendment of a materials license subject to parts 30,.32 through 35, 39, 40, or 70 of this chapter, with the exception of a license amendment related to an application to transfer a license; or

5. In §2.1205, paragraphs (a) and (b) are revised to read as follows:

§2.1205 Request for a hearing: petition for leave to intervene.

(a) Any person whose interest may be affected by a proceeding for the grant, renewal, or licensee-initiated ame~dment of a license subject to this subpart may file a request for a hearing.

39 (b) An applicant for a license, a license amendment, or a license renewal who is issued a notice of proposed denial or a notice of denial and who desires a hearing shall file the request for the hearing within the time specified in §2.103 in all cases. An applicant may include in the request for hearing a request that the presiding officer recommend to the Commission that procedures other than those authorized under this subpart be used in the proceeding, provided that the applicant identifies the special factual circumstances or issues which support the use of other procedures.

6. In Part 2, a new Subpart M is added to read as follows:

Subpart M - Public Notification, Availability of Documents and _Records, Hearing Requests and Procedures for Hearings on License Transfer Applications.

Sec.

2.1300 Scope of Subpart M.

2.1301 Public notice of receipt of a license transfer application.

2.1302 Notice of withdrawal of an application.

2.1303 Availability of documents in the Public Document Room.

2.1304 Hearing procedures.

2.1305 Written comments.

2.1306 Hearing request or intervention petition.

2.1307 Answers and replies.

2.1308 Commission action on a hearing request or intervention petition.

2.1309 Notice of oral hearing.

2.1310 Notice of hearing consisting of written comments.

2.1311 Conditions in a notice or order.

2.1312 Authority of the Secretary.

2.1313 Filing and service.

2.1314 Computation of time.

2.1315 Generic determination regarding license amendments to reflect transfer.

2.1316 Authority and role of NRC staff.

2.1317 Hearing docket.

2.1318 Acceptance of hearing documents.

2.13~ 9 Presiding Officer.

2.1320 Responsibility and power of the Presiding Officer in an oral hearing.

2.1321 Participation and schedule for submissions in a hearing consisting of written comments.

40 2.1322 Participation and schedule for submissions in an oral hearing.

2.1323 Presentation of testimony in an oral hearing.

2.1324 Appearance in an oral hearing.

2.1325 Motions and requests.

2.1326 Burden of proof.

2.1327 Application for a stay of the effectiveness of NRG staff action on license transfer.

2.1328 Default.

2.1329 Waiver of a rule or regulation.

2.1330 Reporter and transcript for an oral hearing.

2.1331 Commission action.

Subpart M - Public Notification, Availability of Documents and Records, Hearing Requeists and Procedures for Hearings on License Transfer Applications.

§2.1300 Scope of Subpart M.

This subpart governs requests for, and procedures for conducting, hearings on any application for the direct or indirect transfer of control of an NRG license which transfer requin~s prior approval of the NRG under the Commission's regulations, governing statutes, or pursuant to a license condition. This subpart is to provide the only mechanism for requesting hearings on license transfer requests, unless contrary case specific orders are issued by the Commission.

§2.1301 Public notice of receipt of a license transfer application.

(a) The Commission will notice the receipt of each application for direct or indirect transfer of a specific NRG license by placing a copy of the application in the NRG Public Document Room.

(b) The Commission will also publish in the Federal Register a notice of receipt of an application for approval of a license transfer involving 10 CFR Part 50 and Part 52 licenses,

41 major fuel cycle facility licenses issued under Part 70, or Part 72 licenses. This notice constitutes the notice required by §2.105 with respect to all matters related to the application requiring NRC approval.

(c) Periodic lists of applications received may be obtained upon request addressed to the Public Document Room, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001.

§2.1302 Notice of withdrawal of an application...

The Commission will notice the withdrawal of an* application by publishing the notice of withdrawal in the same manner as the notice of receipt of the application was published under

§2.1301.

§2.1303 Availability of documents in the Public Document Room.

Unless exempt from disclosure under part 9 of this chapter, the following documents pertaining to each application for a license transfer requiring Commission approval will be placed in the Public Document Room when available:

(a) The license transfer application and any associated requests; (b) Commission correspondence with the applicant or licensee related to the application; (c) Federal Register notices; (d) The NRC staff'Safety Evaluation Report (SER).

(e) Any NRC staff orderwhich acts on the license transfer application; and

42 (f) If a hearing is held, the hearing record and decision.

§2.1304 Hearing procedures.

The procedures in this subpart will constitute the exclusive basis for hearings on license transfer applications for all NRC specific licenses.

§2.1305 Written comments.

(a) As an alternative to requests for hearings and petitions to intervene, persons may submit written comments regarding license transfer applications. The Commission will consid13r and, if appropriate, respond to these comments, but these comments do riot otherwise constitute part of the decisional record.

(b) These comments should be submitted within 30 days after public notice of receipt c,f the application and addressed to the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemakings and Adjudications Staff.

(c) The Commission will provide the applicant with a copy of the comments. Any response the applicant chooses to make to the comments must be submitted within 1 0 days of service of the comments on the applicant. Such responses do not constitute part of the decisional record.

§2.1306 43

• Hearing request or intervention petition.

(a) Any person whose interest may be affected by the Commission's action on the application may request a hearing or petition for leave to* intervene on a license application for approval of a direct or indirect transfer of a specific license.

(b) Hearing requests and intervention petitions must-(1) State the name, address, and telephone number of the requester or petitioner; (2) Set forth the issues sought to be raised and (i) Demonstrate that such issues are within the scope of the proceeding on the license transfer application, (ii) Demonstrate that such issues are relevant to the findirigs the NRC must make to grant the application for license transfer, (iii) Provide a concise statement of the alleged facts or expert opinions which support the petitioner's position on the issues and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the petitioner intends to rely to support its position on the issues, and (iv) Provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact.

(3) Specify both the facts pertaining to the petitioner's interest and how the int~rest may be affected, with particular reference to the factors in §2.1308(a).

(4) Be served on both the applicant and the NRC Office of the Secretary by any of the methods for service specified in §2.1313.

(c) Hearing requests and intervention petitions will be considered timely only if filed not later than:

44 (1) 20 days after notice of receipt is published in the Federal Register, for those applications published in the Federal Register; (2) 45 days after notice of receipt is placed in the Public Document Room for all other applications; or (3) Such other time as may be provided by the Commission.

§2.1307

. Answers and replies.

(a) Unless otherwise specified by the Commission, an answer to a hearing request or intervention petition may be filed within 10 days after the request or petition has been served.

(b) Unless otherwise specified by the Commission, a reply to an answer may be filed within 5 days after service of that answer.

( c) Answers and replies should address the factors in §2.1308.

§2.1308 Commission action on a hearing request or intervention petition.

(a) In considering a hearing request or intervention petition on an application for a transfer of an NRG license, the Commission will consider:

( 1) The nature of the Petitioner's alleged interest; (2) Whether that interest will be affected by an approval or denial of the application for transfer; (3) The possible effect of an order granting the request for license transfer on that interest, including whether the relief requested is within the Commission's authority, and, if so, whether granting the relief requested would 1adres~ the alleged injury; and

45 (4) Whether the issues sought to be litigated are --

(i) Within the scope of the proceeding; (ii) Relevant to the findings the Commission must make to act on the application for license transfer; (iii) Appropriate for litigation in the proceeding; and (iv) Adequately supported by the statements, allegations, and documentation required by

§2.1306(b)(2)(iii) and (iv).

(b) Untimely hearing requests or intervention petitions may be denied unless good cause for failure to file on time is established. In reviewing untimely requests or petitions, the Commission will also consider:

(1) The availability of other means by which the requester's or petitioner's interest will be protected or represented by other participants in a hearing; and

• (2) The extent to which the issues will be broadened or final action on the application delayed.

(c) The Commission will deny a request or petition to the extent it pertains solely to matters outside its jurisdiction.

(d)(1) After consideration of the factors covered by paragraphs (a) through (c) of this section, the Commission will issue a notice or order granting or denying a hearing request or intervention petition, designating the issues for any hearing that will be held and designating the Presiding Officer. A notice granting a hearing will be published in the Federal Register and served on the parties to the hearing.

(2) Hearings under this subpart will be oral hearings, unless, within 15 days of the service of the notice or order granting a hearing, the parties unanimously agree and file a joint motion

46 requesting a hearing consisting of written comments. No motion to hold a hearing consisting of written comments will be entertai.ned absent unanimous consent of all parties.

(3) A denial of a request for hearing and a denial of any petition to intervene will set forth the reasons for the denial.

§2.1309 Notice of oral hearing.

(a) A notice of oral hearing will--

(1) State the time, place, and issues to be considered; (2) Provide names and addresses of participants, (3) Specify the time limit for participants and others to indicate whether they wish to present.views; (4) Specify*the schedule for the filing of written testimony, statements of position, proposed questions for the Presiding Officer to consider, and rebuttal testimony consistent with the schedule provisions of §2. 1321.

(5) Specify that the oral hearing shall commence within 15 days of the date for submittal of rebuttal testimony unless otherwise ordered; *

(6) ~tate any other instructions the Commission deems appropriate; (7) If so determined by the NRC st~ff or otherwise directed by the Commission, direct that the staff participate as a party with respect to some or all issues. *

(b) If the Commission is not the Presiding Officer, the notice of oral hearing will also s.tate:

(1) When the jurisdiction of the Presiding Officer commences and terminates; (2) The powers of the Presiding Officer;

47 (3) Instructions to the Presiding Officer to certify promptly the completed hearing record to the Commission without a recommended or preliminary decision.

§2.1310 Notice of hearing consisting of written comments.

A notice of hearing consisting of written comments will:

(a) State the issues to be considered; (b) Provide the names and addresses of participants;

( c) Specify the schedule for the filing of written testimony, statements of position, proposed questions for the Presiding Officer to consider for submission to the other parties, and rebuttal testimony, consistent with the schedule provisions of §2.1321..

(d) State any other instructions the Commission deems appropriate.

§2.1311 Conditions in a notice or order.

(a) A notice or order granting a hearing or permitting intervention shall--

(1) Restrict irrelevant or duplicative testimony; and (2) Require common interests to be represented by a single participant.

(b) If a participant's interests do not extend to all the issues in the hearing, the notice or order may limit her/his participation accordingly.

§2.1312 Authority of the Secretary.

48 The Secretary or the Assistant Secretary may rule on procedural matters relating to proceedings conducted by the Commission itself under this subpart to the same extent they can do so under §2. 772 for proceedings under subpart G.

§2.1313 Filing and service.

(a) Hearing requests, intervention petitions, answers, replies and accompanying documents must be served as described in paragraph (b) of this section by delivery, facsimile transmission, e-mail or other means that will ensure receipt by_ close of business on the due date for filing.. Any participant filing hearing requests, intervention petitions, replies and accompanying documents should include information on mail and delivery addresses, e-mail addresses, and facsimile numbers in their initial filings which may be used by the Commissio,n, Presiding Officer and other parties for serving documents on the participant.

(b) All filings must be served upon the applicant; the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; the Secretary of the Commission, U.S.

Nuclear Regulatory Commission, Washington, DC 20555-0001; and participants if any. If service to the Secretary is by delivery or by mail the filings should be addressed to the Secretary, U.8.

Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemakings and Adjudications Staff. E-mail filings may be sent to the Secretary at the following e-mail address:

SECY@NRC.GOV. Facsimile transmission filings may be filed with the Secretary using the following number: 301-415-1101.

(c) Service is completed by:

(1) Delivering the paper to the person; or leaving it in her or his office with.someone in charge; or, if there is no one in charge, leaving it in a conspicuous place in the office; or, if the

49 recipient has no office or it is closed, leaving it at her or his usual place of residence with some occupant of suitable age and discretion; (2) Depositing it in the United States mail, properly stamped and addressed; or (3) Any other manner authorized by law, when service cannot be made as provided in paragraphs (c)(1) or (2) of this section.

(4) For facsimile transmission, sending copies to the facsimile machine of the person being served; (5) For e-mail, sending the filing in electronic form attached to an e-mail message directed to the person being served.

(d) Proof of service, stating the name and address of the person served and the manner and date of service, shall be shown, and may be made by--

(1) Written acknowledgment of the person served or an authorized representative; or (2) The certificate or affidavit of the person making the service.

(e) The Commission may make special provisions for service when circumstances warrant.

§2.1314 Computation of time.

(a) In computing time, the first day of a designated time period is not included and the last day is included. If the last day is a Saturday, Sunday or legal holiday at the place where the required action is to be accomplished, the time period will end on the next day which is not a Saturday, Sunday or legal holiday.

(b) In time periods of 7 days or less, Saturdays, Sundays and holidays are not counted.

50 (c) Whenever an action is required within a prescribed period following service of a paper, 3 days shall be added to the prescribed period if service is by regular mail.

§2.1315 Generic determination regarding license amendments to reflect transfers.

(a) Unless otherwise determined by the Commission with regard to a specific applicatit:>n, the Commission has determined that any amendment to the license of a utilization facility or tile license of an Independent Spent Fuel Storage Installation which does no more than conform the license to reflect the transfer action, involves respectively, "no significant hazards consideration" or "no generic issue as to whether the health and safety of the public will be significantly affected."

(b) Where administrative license amendments are necessary to reflect an approved transfer, such amendments will be included in the order that approves the transfer. Any challenge to the administrative license amendment is limited to the question of whether the license amendment accurately reflects the approved transfer.

§2.1316 Authority and role of NRC staff.

(a) During the pendency of any hearing under this subpart, consistent with the NRG staffs findings in its Safety Evalu;:1tion Report (SER), the staff is expected to promptly issue approva.l or denial of license transfer requests. Notice of such action shall be promptly transmitted to the Presiding Officer and parties to the proceeding.

51 (b) Except as otherwise directed in accordance with §2.1309(a)(7), the NRC staff is not required to be a party to proceedings under this subpart but will offer into evidence its SER associated with the transfer application and provide one or more sponsoring witnesses.

(c) If the NRC staff desires to participate as a party, the staff shall notify the Presiding Officer and the parties and shall thereupon be deemed to be a party with all the rights and responsibilities of a party.

§2.1317 Hearing docket.

For each hearing, the Secretary will maintain a docket which will include the hearing transcript, exhibits and all papers filed or issued in connection with the hearing. This file will be made available to all parties in accordance with the provisions of §2.1303 and will constitute the only discovery in proceedings under this subpart.

§2.1318 Acceptance of hearing documents.

(a) Each document filed or issued must be clearly legible and bear the docket number, license application number, and hearing title.

(b) Each document shall be filed in one original and signed by the participant or its authorized representative, with the address and date of signature indicated. The sign~ture is a representation that the document is submitted with full authority, the person signing knows its contents and that, to the best of their knowledge, the statements made in it are true.

(c) A document n9t meeting the requirements of this section may be returned with an explanation for nonacceptance and, if so, will not be docketed.

52

§2.1319 Presiding Officer.

(a) The Commission will ordinarily be the Presiding Officer at a hearing under this part.

However, the Commission may provide in a hearing notice that one or more Commissioners, or any other person permitted by law, will preside.

(b) A participant may subm.it a written motion for the disqualification of any person presiding. The motion shall be supported by an affidavit setting forth the alleged grounds for disqualification. If the Presiding Officer does not grant the motion or the person does not disqualify himself and the Presiding Officer or such other person is not the Commission or a Commissioner, the Commission will decide the matter.

(c) If any person presiding deems himself or herself disqualified, he or she shall withdi-aw by notice on the record after notifying the Commission.

(d) If a Presiding Officer becomes unavailable, the Commission will designate a replacement.

(e) Any motion concerning the designation of a replacement Presiding Officer shall be made within 5 days after the designation.

(f) Unless otherwise ordered by the Commission, the jurisdiction of a Presiding Officer other than the Commission commences as designated in the h~aring notice and terminates upon certification of the hearing record to the Commission, or when the Presiding Officer is disqualified.

§2.1320 Responsibility and power of the Presiding Officer in an oral hearing.

53 (a) The Presiding Officer in any oral hearing shall conduct a fair hearing, develop a record that will contribute to informed decisionmaking, and, within the framework of the Commission's orders, have the power necessary to achieve these ends, including the power to:

(1) Take action to avoid unnecessary delay and maintain order; (2) Dispose of procedural requests; (3) Question participants and witnesses, and entertain suggestions as to questions which may be asked of participants and witnesses.

(4) Order consolidation of participants; (5) Establish the order of presentation; (6) Hold conferences before or during the hearing; (7) Establish time limlts; (8) Limit the number of witnesses; and (9) Strike or reject duplicative, unreliable, immaterial, or irrelevant presentations.

(b) Where the Commission itself does not preside:

(1) The Presiding Officer may certify questions or refer rulings to the Commission for decision; (2) Any hearing order may be modified by the Commission; and (3) The Presiding Officer will certify the completed hearing record to.the Commission,

• which may then issue its decision on the hearing or provide that additional testimony be presented.

§2.1321 Participation and schedule for submission in a hearing consisting of written comments.

54 Unless otherwise limited by this subpart or by the Commission, participants in a hearing consisting of written comments may submit:

(a) Initial written statements of position and written testimony with supporting affidavits on the issues. These materials shall be filed within 30 days *of the date of the Commission's Notice granting a hearing pursuant to §2.1308(d)(1 ), unless the Commission or Presiding Officer directs otherwise.

(b) Written responses, rebuttal testimony with supporting affidavits directed to the initial statements and testimony of other participants, and proposed written questions for the Presiding Officer to consider for submittal to persons sponsoring testimony submitted under paragraph (a) of this section. These materials shall to filed within 20 days of the filing of the materials submitted under paragraph (a) of this section, unless the Commission or Presiding Officer directs otherwise. Proposed written questions directed to rebuttal testimony for the Presiding Officer to consider for submittal to persons offering such testimony shall be filed within 7 days of the filing of the rebuttal testimony.

(c) Written concluding statements of position on the issues. These materials shall be 'filed within 20 days of the filing of the materials submitted under paragraph (b) of this section, unless the Commission or the Presiding Officer directs otherwise.

§2.1322 Participation and schedule for submissions in an oral hearing.

(a) Unless otherwise limited by this. subpart or by the Commission, participants in an oral hearing may submit and sponsor in the hearings:

(1) Initial written statements of position and written testimony with supporting affidavits. on

_the issues. These materials shall be filed within 30 days of the date of the Commission's notii:e

55 granting a hearing pursuant to §2.1308 (d)(1 ), unless the Commission or Presiding Officer directs otherwise.

(2)(i) Written responses and rebuttal testimony with supporting affidavits directed to the initial statements and testimony of other participants; (ii) Proposed questions for the Presiding Officer to consider for propounding to persons sponsoring testimony.

(3) These materials must be filed within 20 days of the filing of the materials submitted under paragraph (a)(1) of this section, unless the Commission or Presiding Officer directs otherwise.

(4) Proposed questions directed to rebuttal testimony for the Presiding Officer to consider for propounding to persons offering such testimony shall be filed within 7 days of the filing of the rebuttal testimony.

(b) The oral hearing should commence within 65 days of the date of the Commission's notice granting a hearing unless the Commission or Presiding Officer directs otherwise.*

Ordinarily, questioning in the oral hearing will be conducted by the Presiding Officer, using either the Presiding Officer's questions or questions submitted by the participants or a combination of

. both.

(c) Written post-hearing statements of position on the issues addressed in the oral hearing may be submitted within 20 days of the close of the oral hearing.

(d) The Commission, on its own motion, or in response to a request from a Presiding Officer other than the Commission, may use additional procedures, such as direct and cross-examination, or may convene a formal hearing under subpart G of 10 CFR Part 2 on specific and substantial disputes of fact, necessary for the Commission's decision, that cannot be resolved with sufficient accuracy except in a formal hearing. The staff will be a party in any such

56 formal hearing. Neither the Commission nor the Presiding Officer will entertain motions from the parties that request such special procedures or formal hearings.

§2.1323 Presentation of testimony in an oral hearing.

(a) All direct testimony in an oral hearing shall be filed no later than 15 days before the hearing or as otherwise ordered or allowed pursuant to the provisions of §2.1322.

(b) Written testimony will be received into evidence in exhibit form.

(c) Participants may designate and present their own witnesses to the Presiding Offict~r.

(d) Testimony for the NRG staff will be presented only by persons designated by the Executive Director for Operations for that purpose.

(e) Participants and witnesses will be questioned orally or in writing and only by the Presiding Officer.. Questions may be addressed to individuals or to panels of participants or witnesses.

(f) The Prei:;iding Officer may accept written testimony from a person unable to appear at the hearing, and may request him or her to respond to questions.

• (g) No subpoenas will be granted at the request of participants for attendance and testimony of participants or witnesses or the production of evidence.

§2.1324 Appearance in an oral hearing.

(a) A participant may appear in a hearing on her or his own behalf or be represented by an authorized representative:

57 (b) A person appearing shall file a written notice stating her or his name, address and telephone number, and if an authorized representative, the basis of her or his eligibility and the name and address of the participant on whose behalf she or he appears.

(c) A person may be excluded from a hearing for-disorderly, dilatory or contemptuous conduct, provided he or she is informed of the grounds and given an opportunity to respond.

§2.1325 Motions and requests.

(a) Motions and requests shall be addressed to the Presiding Officer, and, if written, also filed with the Secretary and served on other participants.

(b) Other participants may respond to the motion or request. Responses to written motions or requests shall be filed within 5 days cJfter service unless the Commfssion or Presiding Officer directs otherwise.

(c) The Presiding Officer may entertain m.otions for extension of time and changes in schedule in accordance with paragraphs (a) and (b) of this section.

(d) When the Commission does not preside, in response to a motion or request, the Presiding Officer may refer a ruling or certify a question to the Commission for decision and notify the participants.

(e) Unless otherwise ordered by the Commission, a motion or request, or the certification of a question or referral of a ruling, shall not stay or extend any aspect of the hearing.

§2.1326 Burden of proo.f.

The applicant or the proponent of an order has the burden of proof.

58

_§2.1327 Application for a stay of the effectiveness of NRC staff action on license transfer.

(a) Any application for a stay of the effectiveness of the NRC staff's order on the lice!nse transfer application shall be filed with the Commission within 5 days of the issuance of the notice of staff action pursuant to §2.1316(a).

(b) An application for a stay must be no longer than 10 pages, exclusive of affidavits, and must contain:

(1) A concise summary of the action which is requested to be stayed; and (2) A concise statement of the grounds for a stay, with reference to the factors specified in paragraph (d) of this section.

(c) Within 1 O days after service of an application for a stay under this section, any participant may file an answer supporting or opposing the granting of a stay. Answers must be

. no longer than 10 pages, exclusive of affidavits, and should concisely address the matters in paragraph (b) of this section, as appropriate. No further replies to answers will be entertained.

(d) In determining whether to grant or deny an application for a stay, the Commission will consider:

merits; (1) Whether the requester will be irreparably injured unless a stay is granted; (2) Whether the requester has made a strong showing that it is likely to prevail on the:

(3) Whether the granting of a stay w~uld harm other participants; and (4) Where the public interest lies.

§2.1328 Default.

59 When a participant fails to act within a specified time, the Presiding Officer may consider that participant in default, issue an appropriate ruling and proceed without further notice to the defaulting participant.

§2.1329 Waiver of a rule or regulation.

(a) A participant may petition that a Commission rule or regulation be waived with respect to the license transfer application under consideration.

(b) The sole ground for a waiver shall be that, because of special circumstances concerning the subject of the hearing, application of a rule or regulation would not serve the purposes for which it was adopted.

(c) Waiver petitions shall specify why application of the rule or regulation would not serve the purposes for which it was adopted and shall be supported by affidavits to the extent applicable.

(d) Other participants may, within 10 days, file a response to a waiver petition.

(e) When the Commission does not preside, the Presiding Officer will certify the waiver petition to the Commission, which, in response, will grant or deny the waiver or direct any further proceedings.

§2.1330 Reporter and transcript for an oral hearing.

(a) A reporter designated by the Commission will record an oral hearing and prepare the official hearing transcript.

60 (b) Except for any portions that must be protected from disclosure ii:, accordance with law and policy as reflected in 10 CFR 2.790, transcripts will be placed in the Public Document Room, and copies may be purchased from the Secretary, u.s: Nuclear Regulatory Commission, Washington, DC 20555.

(c) Corrections of the official transcript may be made only as specified by the Secretary.

§2.1331 Commission action.

(a) Upon completion of a hearing, the Commission will issue a written opinion including its decision on the license transfer application and the reasons for the decision.

(b) The decision on issues designated for hearing pursuant to §2.1308 will be based on the record developed at hearing.

PART 51-ENVIRONMENTAL PROTECTION REGULATIONS FOR DOMESTIC LICENSING AND RELATED REGULATORY FUNCTIONS

6. The authority citation for Part 51 continues to read as follows:

Authority: Sec: 161,68 Stat. 948, as amended, sec. 1701, 106 Stat. 2951, 2952, 2953, (42 U.S.C. 2201, 2297f); secs. 201, as amended, 202, 88 Stat. 1242, as amended, 1244 (42 U.S.C.

5841, 5842).

Subpart A also issued under National Environmental Policy Act of 1969, secs. 102, 104, 105, 83 Stat. 853-854, as amended (42 U.S.C. 4332, 4334, 4335); and Pub. L.95-604, Title 11, 92 Stat. 3033-3041; and sec. 193, Pub. L. 101-575, 104 Stat. 2835 42 U.S.C. 2243). Section 51.20, 51.30, 51.60, 51.80, and 51.97 also issued under secs. 135,141, Pub. L.97-425, 96 Stat. 2;~32, 2241, and sec. 148, Pub. L. 100-203, 101 Stat. 1330-223 (42 U.S.C. 10155, 10161, 10168).

Section 51.22 also issued under sec. 274, 73 State. 688, as amended by 92 Stat. 3036-3038 (42 U.S.C. 10141). Section 51.43, 51.67, and 51.109 also under Nuclear Waste Policy Act of 1Sl82, sec 114(f), 96 Stat. 2216, as amended (42 L:.S.C. 10134).

61

• 7. In § 51.22, a new paragraph (c)(21) is added to read as follows:

§ 51.22 Criterion for categorical exclusion; identification of licensing and regulatory actions eligible for categorical exclusion or otherwise not requiring environmental review.

(c) * * *

(21) Approvals of direct or indirect transfers of any license issued by NRC and any associated amendments of license required to reflect the approval of a direct or indirect transfer of an NRC license.

Dated at Rockville, Maryland, this ;J 7 ~ day of November, 1998.

For the Nuclear Regulatory Commission.-

C. Hoyle, cretary of the Commission.

'98 DOCKETED US~RC OCT 15 P2 :57 r-(ut OCRE")

APPR:)VA":.....

OCF<E opposes this propc,st3d rule.

This proposal app13.,=3_rs tc.,

be based on the assumption that license transfers are such a trivial matter that a pro forma exercise in th8 f,-:.irm of infc.,rrnal hearing procedures will suffice.

0CRE disagrees with this assumption.

An examination of 10 CFR 50 reveals several requirements f~r license applicants which could lead to a complex inquiry, such as that necessitating discovery, cross-i:::xarnin.=:<tic,n.:;1.nd the

,:,ther provisions of a full evidentiary hearing:

the ineligibility 01 applicants who are foreign agents or nationals <10 CFR 50.38),

and the requirement that the applicant be technically and finan-cially qualified to engage in the proposed license activities ( 10 CFR 5,0. 40).

As to the form.=::r c:onc:ern,

ha*;,=, heard snr:*;;*ort.::ffs,:,f the nuclear industry lament the fact that many American ru~clear companies hav8 been taken over by f,:,re ign enti tii:::s.

It is not unlikely that a

foreign entity might wish to operate a

U.S.

nuclear power plant as an indepi:::ndent power producer.

As to technical and financial qualifications. contentions falling under this category could involve inquiries into thi:::

financing and staffing of a company, as well as its past performanci:::

and en-

£ orcement history.

OCRE also finds some of the provisions in the proposed rule to be petty attempts to make life difficult f,:.ir intervE:nc-rs.

5:. g.,

proposed 10 CFR 2. 13O6(c) (ll, which rE:quires hearing requ~sts tu be filed within 20 days of the Federal Register

notice, rather than the usual 30 days:

proposed 10 CFR

2. 13ll(a) (2}.

which REQUIRES common interests tc, ::.ie represented by 3.

single p::.rty, rather than leaving that matter to the discretion of the presid-ing officer; and proposed 10 CFR 2. 1314(c), which adds onLy 3

days to computation of time when a paper is served by regular mail, instead of the typical 5 days ( 10 CFR 2.71C).

OCT 2, 1998 A.ckn ed ca.............. -...................

The Commission's "Principles of Good Regulation" states that "nuclear regulation is the public's business."

Such a

blatant attempt to thwart public scrutiny as contained in this proposal i s incongruent with that declaration.

Respectfully submitted, Susan L. Hiatt Director, OCRE 8275 Munson Road Mentor, OH 44060 440-255-3158 2

0 W1scons1n Electnc POWER COMPANY 231 W M1ch1gan. PO Box 2046. Milwaukee. WI 53201-2046 NPL 98-845 October 12, 1998 Secretary of the Commission U.S. NUCLEAR REGULATORY COMMISSION Washington, DC 20555-0001 ATTN: Rulemaking and Adjudications Staff COMMENTS ON PROPOSED RULE DOCKETED US\./,C

• 95 OCT 16 P 3 :18 r\l STREAMLINED HEARING PROCESS FOR NRC APPROVAL OF LICENSE TRANSFERS - 63 FEDERAL REGISTER 48644 (414) 2:;,1 2345 Wisconsin Electric Power Company submits these comments in response to the Nuclear Regulatory Commission's proposed rule concerning "Streamlined Hearing Process for NRC Approval of License Transfers." This proposed rule was published in the Federal Register (63 FR 48644) on September 11, 1998. The proposed rule adds Subpart M to 10 CFR Part 2 which intends to amend the regulation to establish uniform procedures and rules of practice for processing requests for hearings associated with license transfer applications.

Wisconsin Electric Power Company supports the Nuclear Regulatory Commission's proposed restructuring of its hearing process for the approval of license transfers. The proposed rule is consistent with the Nuclear Regulatory Commission's broader initiative to improve the effectiveness of the agency's programs and processes. The proposed approach is also consistent with industry recommendations to develop a well-managed, disciplined process that allows companies to implement business decisions in a timely manner. The proposed rule should result in a more streamlined process for license transfer applications. The proposed change strikes a proper balance between the need for expeditious action on license transfers and the need for the Commission to allow interested parties an opportunity to raise legitimate concerns with respect to such transfers. We believe the adoption of the proposed rule will benefit the Nuclear Regulatory Commission, the industry, and interested members of the public.

The proposed change from an adjudicatory-style proceeding to a legislative-style proceeding should help achieve the Commission's goal of timely and effective decisions on requests for license transfers.

Wisconsin Electric Power Company agrees with the Commission's conclusion that it has the legal authority to conduct legislative-style hearings. We believe the Atomic Energy Act, Energy Reorganization Act, and the Administrative Procedure Act provide the Commission the flexibility to fashion procedures which provide for a fair process to consider any issues raised concerning license A subsidia,:v of Wisconsin Eneq{V ColJ]Oralion

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NPL-98-845 10/12/98 Page2 transfers while still proceeding in an expedited manner. The legislative-style hearing provided for by the proposed rule will provide interested parties the opportunity to raise legitimate issues regarding a license transfer to the attention of the Commission while assuring that lengthy hearings and unnecessary delays are avoided.

While Wisconsin Electric Power Company fully supports the NRC's proposal to streamline the hearing process for license transfers, we believe that further clarification of some components of the proposed rule is warranted. We recommend that the NRC consider the following clarifications and refinements to the proposed rule.

1. The final rule should clarify how license transfer applications filed before the effective date of the final rule will be processed. We believe that the new legislative-style hearing process should be applied to all pending applications. Such clarification would assure that licensees would not postpone license transfer request submittals until after the rule is effective.

2. The proposed rule does not explicitly limit the scope of any hearing under Subpart M.

Proposed 10 CFR 2.1306 requires that hearing requests and intervention petitions must "demonstrate that such issues are within the scope of the proceeding" and "relevant to the findings the NRC must take to grant that application for license transfer." A similar provision should be applied to the hearings such that the Commission and Presiding Officer are required to limit the scope of the hearing to those matters relevant to the license transfer.

3. Proposed 10 CFR 2.1316 describes the authority and role of the NRC Staff. The proposed rule states that " the Staff is expected to promptly issue approval or denial of license transfer requests". The proposed rule does not specify what conditions or circumstances would permit the Staff to delay approval or denial. We believe that the final rule should be clarified to require prompt Staff approval or denial upon completion of the Safety Evaluation Report unless there are unique circumstances where a license transfer raises significant issues directly affecting plant safety.

4. We suggest that the Commission make clear the evidentiary value of oral presentations and written position statements which are allowed under the proposed rule. We believe that the new streamlined hearing process should still be subject to the same evidentiary requirements as other Commission proceedings.

NPL-98-845 10/12/98 Page 3

5. The proposed rule does not contain a provision to allow parties to submit proposed questions for the Presiding Officer to consider with respect to rebuttal testimony.

We believe the process should afford parties the opportunity to challenge misleading or invalid rebuttal testimony. We recommend that the rule allow for a very short time period following the filing of rebuttal testimony during which parties would be permitted to submit questions on rebuttal testimony. We believe this opportunity can be afforded without extending the hearing process timeframe proposed in the rule.

Wisconsin Electric Power Company appreciates the opportunity to comment on the proposed rule. We support the NRC' s plan to expedite this rulemaking such that the final rule may become effective by the end of 1998. We believe the Commission's proposal will improve the efficiency and effectiveness of the hearing process. We commend the Commission for proposing to revise its procedures to more effectively respond to issues important to the electric power industry.

Sincerely, ~t.1~

Michael B. Sellman Senior Vice President & Chief Nuclear Officer cc:

NP File

Station Support Department DOCKETED USNRr:

PECO NUCLEAR PECO Energy Company A Unit of PECO Energy "98 OCT 16 P 3 :21 965 Chesterbrook Boulevard Wayne PA 19087-5691 October 9, 1998 Mr. John C. Hoyle Secretary of the Commission Nuclear Regulatory Commission Attn: Rulemaking and Adjudications Staff Washington, DC 20555-0001

Subject:

Comments Concerning NRC Proposed Rule 10 CFR Parts 2 and 51, "Streamlined Hearing Process for NRC Approval of License Transfers" (63FR48644, dated September 11, 1998)

Dear Mr. Hoyle:

This letter is being submitted in response to the NRC's request for comments concerning Proposed Rule 1 O CFR Parts 2 and 51, "Streamlined Hearing Process for NRG Approval of License Transfers,"

published in the Federal Register (i.e., 63FR48644, dated September 11, 1998). The NRC is proposing an amendment to its regulations that would provide specific uniform procedures and rules of practice for handling requests for hearing associated with license transfer applications involving both material and reactor licensees.

PECO Energy appreciates the opportunity to comment on this proposed rule. We consider this Proposed Rule a positive step, in that, it will streamline and clearly define the process required for hearings, and will establish a categorical exclusion that would preclude the need to perform environmental assessments for license transfers. PECO Energy is not opposed to promulgation as a final rule. In addition, we offer the following specific comments on the Proposed Rule for consideration by the NRC.

Comments

1.

Section 2.1306 of the Proposed Rule does not appear to clarify the scope of the proceeding to easily determine if issues are relevant. Information in the Supplementary Information section under Introduction and Purpose of this notice, states that typical staff review consists largely of assuring that the ultimately licensed entity has the capability to meet financial qualification and decommissioning funding aspects of NRC regulations. Failing to clarify the scope in the regulation may needlessly result in issues being raised and considered which are not related to financial capabilities.

PECO Energy recommends that Section 2.1306(b)(2)(i) be changed to read as follows:

"Demonstrates that such issues are relevant to assuring that the ultimately licensed entity has the capability to meet financial qualification and decommissioning funding requirements or other provisions unique to the particular transfer action,"....

2.

Section 2.1307(a) and (b) of the Proposed Rule states that documents "may" be filed within various time limits. PECO Energy recommends that "may" be changed to "must."

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3.

Section 2.1309(a)(4) of the Proposed Rule contains a reference to Section 2.1321. This appears to be an editorial error, and should be corrected to refer to Section 2.1322.

4.

Section 2.1310(c) of the Proposed Rule ends in a period when it should end with a semi-colon.

5.

Section 2.1313 of the Proposed Rule promotes the use of e-mail for service of documents.

Unless the software is specified for use in composing the documents, it is possible to serve documents that the recipient cannot read.

6.

The title of Section 2.1315 of the Proposed Rule should be changed to agree with the title in the Table of Contents by changing "transfers" to "transfer."

7. The title of Section 2.1322 of the Proposed Rule should be changed to read, "Participation and schedule... " to agree with the title in the Table of Contents.

8.

Section 2.1322(a)(3) of the Proposed Rule should be re-designated as Section 2.1322(a)(2)(iii) since it refers to materials filed under Section 2.1322(a)(2).

9.

Section 2.1327(d) of the Proposed Rule should be changed to end in a colon.

If you have any questions or require additional information, please do not hesitate to contact us.

Very truly yours, Garrett D. Edwards Director - Licensing

WINSTON & STRAWN 35 WEST WACKER DRIVE CHICAGO, ILLINOIS 60601-9703 1400 L STREET, N.W.

WASHINGTON, D.C. 20005-3502 6, RUE DU CIRQUE 75008 PARIS, FRANCE 200 PARK AVENUE NEW YORK, NY 10166-4193 Secretary of the Commission (202) 371-5700 FACSIMILE (202) 371 -5950 October 13, 1998 U.S. Nuclear Regulatory Commission Attention: Rulemaking and Adjudications Staff Washington, D.C. 20555-0001 DOCKET PAOPOS Re:

Comments on NRC Proposed Rule regarding "Streamlined Hearin2 Process for NRC Approval of License Transfers" 43, RUE DU RHONE On September 11, 1998, the Nuclear Regulatory Commission published for comment in the Federal Register a proposed rule, "Streamlined Hearing Process for NRC Approval of License Transfers." 63 Fed. Reg. 48644 (1998). If adopted, this rule would add a new Subpart M to 10 CFR Part 2. The new subpart would provide for the use of informal, legislative-style hearings when a hearing is requested in connection with a license transfer application involving either a material or a reactor licensee. The following comments concerning the proposed rule are submitted on behalf of Duke Energy Corporation ("Duke").

Informal Hearings Should Make License Transfers Less Burdensome We applaud this proposal to improve the Commission's hearing process associated with license transfer applications. The NRC's license transfer process is important to the future of the nuclear industry, particularly during this period ofrestructuring and organizational change. Like the Commission, we believe that the "timely and effective resolution" of license transfer requests is essential. To settle for less, by perpetuating the use of existing formal hearing processes for license transfers which the Senate Appropriations Committee recently characterized as "interminable," is unfair to the nuclear industry and an ineffective use of Commission resourcesY 11 See the June, 1998 final version of the "Energy and Water Development Appropriation Bill, 1999," Report No. 105-206, at 150.

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WINSTON & STRAWN Proposed Rule re License Transfers Page2 Informal, legislative-type hearing procedures, such as those contemplated in the proposed Subpart M, should make the hearing phase of the license transfer process shorter, more focused and efficient, and less expensive. Duke concurs with the Commission's proposals to establish and adhere to schedule milestones in license transfer hearings, to require the development of a limited evidentiary record by the Commission or a presiding officer, to eliminate open-ended discovery, to allow the opportunity to use oral arguments and evidence, and to focus the hearing witnesses, hearing presentations, and hearing record on only those issues relevant to license transfers. These proposals reflect the NRC's recognition that license transfers do not generally involve the kind of technical issues for which complex hearing procedures provide the most efficient means ofreaching decisions. See 63 Fed. Reg. at 48644, 48645.

Limits on Cross-Examination Must Protect License Transfer Applicants While we support the proposed rule, we are also concerned about the NRC's proposal to eliminate cross-examination by parties to the hearing under Subpart M, and to allow only the presiding officer to question witnesses. In our view, the final rule should retain provisions allowing the parties to present recommended questions to the presiding officer. In addition, we would like to see additional protections afforded to the license applicant in this situation. For example, the applicant must be afforded substantial deference concerning the requested scope and number of questions that it submits for cross-examination by the presiding officer.

In exercising the right to cross-examine witnesses, the presiding officer must act reasonably to protect the interests of all of the parties to the proceeding, not excluding the applicant.

Cross-examination by the presiding officer should not be used as an opportunity to inject irrelevant issues into the proceeding. Nor should it be used as a "fishing expedition" in an effort to create new issues. The Commission will need to monitor the performance of presiding officers in Subpart M proceedings closely, to ensure that the ultimate intent of "streamlining" the proceeding is being achieved. In our view, the Commission should recognize industry concerns in this area and take steps to address those concerns in the final rule.

Clarify the Scope of the Decision To Be Issued by the Presiding Officer The proposed rule does not specifically address the scope of issues that can be adjudicated in license transfer hearings under the proposed Subpart M, other than to propose that intervention petitions would be limited to "such issues... relevant to the findings the NRC must make to grant the application for license transfer." In our view, the final rule should define with greater precision the types of issues appropriate for review as part of a license transfer proceeding.

For example, Subpart M might state that NRC license transfer hearings are limited to issues associated with assuring that the ultimately licensed entity in the license transfer has the capability to meet financial qualification and decommissioning funding aspects of NRC regulations. (In this

WINSTON & STRAWN Proposed Rule re License Transfers Page 3 regard, the NRC acknowledges in the proposed rule that the typical NRC Staff review of license transfer applications is limited largely to these issues. See 63 Fed. Reg. at 48644.) Other issues heard, particularly technical qualifications, should be restricted to matters that would be changed as a result of the license transfer. Such limitations are a necessary adjunct to the presiding officer's authority to ensure that Subpart M hearings are conducted fairly, efficiently, effectively, and without undue delay.

Absent such limits on the scope of the proceeding and on the adjudicatory decisions associated with license transfers, the Commission and the presiding hearing officer could encounter greater difficulty in focusing transfer hearings so as to exclude irrelevant documents, contentions, and/or testimony from the hearing. Indeed, it is the absence of such limits on the scope of license transfer proceedings that has led to the past abuse of these proceedings.

Applicants Should Have an Explicit Right to Appeal an Adverse Commission Determination on a License Transfer In our view, the final NRC rule promulgating 10 CFR Part 2, Subpart M should include provisions explicitly granting the parties to a contested license transfer hearing the right to appeal an adverse decision by the Commission denying the transfer application. Such a right to appeal is not inconsistent with the use of informal NRC hearing procedures.

The Proposed Subpart M Hearing Process Should Be Applied to other Types ofNRC Hearings License Renewal:

We urge the Commission to consider extending the use of informal, legislative-style hearings to other adjudicatory proceedings, such as license renewal hearings and enforcement hearings. A legal basis exists for doing so. In brief, Section 189(a) of the Atomic Energy Act of 1954, as amended (AEA), requires that an opportunity for a hearing be provided in connection with the grant or renewal of nuclear power reactor operating licenses. 42 U.S.C. § 2239(a)(l). While the AEA provides21 that such hearings are subject to the Administrative Procedure Act, the Commission has determined that formal hearings are not required in reactor licensing proceedings? The NRC's analysis in SECY-98-197, which supports the proposed rule for y

See 42 U.S.C. § 2231.

Nuclear Regulatory Commission En Banc Brief for Respondents, dated August 30, 1991 (filed in the U.S. Court of Appeals for the District of Columbia Circuit, No. 89-1381, Nuclear Information and Resource Service v. NRC, at pp. 32-38), cited at 63 Fed. Reg. at 48645.

WINSTON & STRAWN Proposed Rule re License Transfers Page4 streamlined hearings to review license transfer applications, is equally applicable to support streamlined hearings for license renewal and for appealing enforcement decisions. While the Commission's license renewal regulations in 10 CFR Part 54 contemplate the use of formal adjudicatory hearings under 10 CFR Part 2, Subpart G, in connection with contested license renewal applications, this could be changed through rulemaking.

This being the case, the Commission should consider an appropriate rulemaking change to allow for the use of informal, legislative style hearings in license renewal proceedings.

As the Commission is aware, the experience of many reactor licensees with NRC formal hearings conducted under Part 2, Subpart G has triggered widespread concerns regarding the predictability and the high cost of the license renewal hearing process. Absent some assurance from the NRC that the license renewal hearing process will be limited in scope and duration, and thus will be predictable, licensees find it difficult to bound the projected costs for license renewal. Amending NRC regulations to permit the use of informal, legislative hearings in renewal cases could go far to alleviate this obstacle to license renewal. In tum, the removal of this procedural obstacle could significantly strengthen the long-term viability of commercial nuclear power.

Enforcement: Neither the Atomic Energy Act 1-' nor NRC regulations specifies the kind of hearing to be conducted in connection with a licensee's appeal of an NRC civil penalty. This hearing process is triggered when the NRC issues a notice of violation (see 10 CFR § 2.201) and a civil penalty (10 CFR § 2.205)_.5/ Although such hearings must be subject to the APA, the Commission still retains broad authority to tailor procedures appropriate to reaching decisions on appeals related to enforcement actions, and need not rely solely upon the hearing process in Subpart G of Part 2 to review enforcement decisions. Indeed, the formal hearing procedures provided for in Subpart G arguably discourage reactor licensees and other parties from invoking the appeal The Commission's enforcement authority is set forth in Atomic Energy Act Sections 161 (describing the Commission's power to conduct inspections, investigations, and issue orders), 186 (describing the Commission's power to revoke licenses), 223 (describing criminal penalties for defective component suppliers), 232 (allowing injunctive or equitable relief for violations), 234 ( describing the Commission's power to impose civil penalties), 235 (describing criminal penalties for individuals who interfere with NRC inspectors), 236

( describing criminal penalties for sabotage at nuclear facilities), and Section 206 of the Energy Reorganization Act of 1974 (describing the Commission's power to impose civil penalties for knowing and conscious failure to provide information to the NRC). 42 U.S.C.

§§ 2201, 2236, 2273, 2280, 2282-84, 5846.

If a licensee wishes to contest a proposed civil penalty, it may make a written submittal pursuant to 10 CFR § 2.205. The NRC Staff then determines whether the penalty should be withdrawn based on the information provided by the licensee. It is this final decision that is subject to a hearing request. See 10 CFR § 2.205(e).

WINSTON & STRAWN Proposed Rule re License Transfers Page 5 process, thereby eliminating important (but optional) checks and balances on the enforcement process. We believe that an informal, streamlined hearing process such as that provided for in the proposed Subpart M would be appropriate for use in enforcement proceedings.

The NRC Should Expand the Types of License Amendments Classified and Treated as Administrative License Amendments The discussion accompanying the proposed rule recognizes that certain license amendments are administrative license amendments where "the only issue is whether the license amendment accurately reflects the approved transfer." 63 Fed. Reg. at 48646. In this regard, the NRC reiterates its previous determination that issuance of such an administrative amendment, following the review and approval of the license transfer itself, "presents no safety questions and clearly involves no significant hazards considerations."~' Based on this premise, the Commission proposes to make a generic finding that, "for purposes of 10 CFR 50.58(b)(5), 50.91 and 50.92, administrative amendments which do no more than reflect an approved transfer and do not directly affect actual operating methods and actual operation of the facility do not involve a 'significant hazards consideration' and do not require that a hearing opportunity be provided prior to issuance."

63 Fed. Reg. at 48646; see also proposed Section 2.1315( a). Duke concurs with the generic finding that the NRC proposes to make on this issue.11 In this regard, we suggest that the NRC also take this opportunity to expand the scope of license amendments classified as administrative license amendments, and, based on that classification (and the associated de minimis safety significance), avoid the necessity of individual, case-by-case reviews of the "no significant hazards consideration" issue. Examples would include, but not necessarily be limited to, the following:

11 administrative changes to organizations in technical specifications, license amendments categorized as cost beneficial licensing actions,Y and Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1), 35 NRC 69, 77, n.6 (1992).

As part of this proposed rulemaking, the Commission also proposes a new categorical exclusion in Part 51 for license transfer amendments, designed to "obviate the need for the staff to continue to conduct individual Environmental Assessments in each transfer case."

63 Fed. Reg. at 48646-47; see also proposed Section 51.22(c)(21). We support the addition of a categorical exclusion for this type of administrative license amendment.

See NRC Administrative Letter 95-02: Cost Beneficial Licensing Actions (Feb. 23, 1995)

( describing a program to manage to resolution licensee requests that seek to modify or delete

WINSTON & STRAWN Proposed Rule re License Transfers Page 6 license amendments that implement actions directed by generic NRC correspondence

(~, NRC Generic Letters or NRC Bulletins), for which a generic finding is made of no significant hazards and no environmental impact.

Summary treatment of this broader group of administrative license amendments would eliminate the unnecessary administrative burden upon the NRC Staff which individually processes these amendment requests. It would reduce the uncertainty, expense and delay currently associated with processing license amendments that are administrative. Also, these changes could help the NRC Staff reduce the backlog oflicensing actions and focus its review on those amendment requests with greater safety significance.

Duke appreciates the opportunity to provide input on this Commission proposal.

Respectfully submitted, D~~

. tDwyf~

Anne W. Cottingham WINSTON & STRAWN Attorneys for Duke Energy Corporation requirements that have an "incrementally small safety benefit," that will not require significant NRC technical review, and are costly to implement).

DOCKETED US~RC IS'.AB:DD

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OCKET 0 ROPOSE U. S. Nuclear Regulatory Commission Attn: John C. Hoyle, Secretary of the Commission Mail Stop 0-16 Cl One White Flint North 11555 Rockville Pike Rockville, MD 20852-2738 GPU Nuclear, Inc.

One Upper Pond Road Parsippany, NJ 07054-1095 Tel 201-316-7000 October 13, 1998 1920-98-20593

Subject:

Comments on Proposed Rule, "Streamlined Hearing Process for NRC Approval of License Transfers" (63 FR 48644)

GPU Nuclear is pleased to submit these comments in favor of the NRC's Proposed Rule on a "Streamlined Hearing Process for NRC Approval of License Transfers," which was published in the Federal Register on September 11, 1998 (63 FR 48644 ). GPU is currently negotiating the sale of Three Mile Island Unit 1 to AmerGen Energy Company, LLC, and therefore has a considerable, direct interest in this proposal. GPU Nuclear strongly supports the proposed rule and urges it's prompt adoption.

GPU Nuclear believes that application of the procedures provided in the proposed rule will contribute significantly to assuring that any hearing requests on license transfer applications will be handled efficiently and effectively, while at the same time preserving the essential elements necessary to assure that there is a fair hearing of the views and evidence presented by any member of the public whose interests may be affected, consistent with the requirements of the Atomic Energy Act. As recognized by the NRC notice, expeditious decision making by all agencies, including the NRC, is often essential to the success of business transactions of the sort that give rise to license transfer applications. At the same time, license transfers generally do not affect the operation of nuclear plants. Therefore, they are not likely to have a significant affect on the public rim wt card 2 1 1998

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Page 2 of2 1920-98-20593 health and safety. Consequently, an efficient process for approving license transfer applications is both necessary and appropriate. This is particularly important in light of utility deregulation and restructuring, which may increase license transfer requests and the need for prompt agency approvals serving the public interest.

Because the proposed rule would greatly improve the efficiency of the license transfer process, GPU Nuclear submits that the new procedures should be applied as soon as possible. Specifically, the NRC should make any final rule immediately effective (under the Administrative Procedure Act, the NRC may dispense with the 30-day notice period if a rule is not substantive or upon a finding of good cause) and should also specify that these procedures will be applied to any license transfer applications that are then pending. Applying the new process to pending applications would allow these applicants to enjoy the benefit of a more expeditious hearing process with no harm to an opposing party's ability to contest the application.

Further, to make sure that pending applicants enjoy the benefit of these new procedures, GPU Nuclear recommends that the NRC adopt these procedures by case-specific orders in the notices of any license transfer applications received prior to promulgation of the new rule. The NRC has used such case specific orders in analogous circumstances in the past. See Kerr McGee Corporation (City of West Chicago Rare Earth Facility), CLI-82-2, 15 N.R.C. 232 (1982), aff d, City of West Chicagov. NRC, 701 F.2d 632 (7th Cir. 1983).

GPU Nuclear appreciates the opportunity to share with the Commission it's views regarding the proposed rule. GPU Nuclear welcomes the Commission's initiative to establish a fair and effective process for the expeditious consideration of the views of interested parties in connection with the NRC's review and approval of license transfer applications under 10 CFR 50.80.

irector uclear Safety Assessment

PAUL A. GAUKLER.

202.663.8304 paul_gaulcler@shawpittman.com SHAW PITTMAN POTTS & TROWBRIDGE A PMTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS 2300 N Street, N.W.

Washington, D.C. 20037,1128 202.663.8000 Facsimile 202.663.8007 October 13, 1998 DOCKETED USHRC "98 OCT 14 P 2 :12 New York Virginia Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Attn: Rulemakings and Adjudication Staff DOCKET NUMBER PAOFOSED RLlE Pl rfl. < -5 I (b'3FR J./8ttJ'-1tf)

Re:

Comments on Proposed Rule 11Streamlined Hearing Process for NRC Approval of License Transfers 11

Dear Sir:

Pursuant to the Commission's September 11, 1998 Federal Register notice (63 Fed.

Reg. 48,644), we are submitting written comments on the Nuclear Regulatory Commission's

(

11NRC") proposed rule concerning "Streamlined Hearing Process for NRC Approval of License Transfers." These comments are being submitted on behalf of Shaw Pittman Potts &

Trowbridge ("Shaw Pittman 11

) as well as American Electric Power Company, Baltimore Gas and Electric Company, Boston Edison Company, Carolina Power and Light Company, Detroit Edison Company, Duquesne Light Company, FirstEnergy Corp., Great Bay Power Corporation, GPU Nuclear, Inc., Indiana Michigan Power Company, Northern States Power Company, Union Electric Company (dba AmerenUE), and Wisconsin Electric Power Company (referred to hereinafter as the "Utilities").

Shaw Pittman and the Utilities strongly support the Commission's proposed restructuring of its hearing process for the approval of license transfers. We believe that the proposed change from a formal adversarial, adjudicatory-style proceeding governed by Subpart G of the NRC's Rules of Practice to a less contentious legislative-style proceeding strikes a proper balance between the need for expeditious action on NRC license transfers and the need for the Commission to allow interested parties an opportunity to raise legitimate concerns with respect to such transfers. The Commission has properly recognized that the "timely and effective resolution of requests for transfers on the part of the Commission is essential" as the electric utility industry is restructured. 63 Fed. Reg. at 48,644. The legislative style hearing provided for by the proposed rule together with its schedule milestones -- if implemented properly -- should achieve the Commission's goal of timely and effective decisions on requests for license transfers and should avoid lengthy hearings and interminable delays such as that which occurred in connection with the license transfer of Acknowledged by card.. OCT 1 5 1998

SHAW PITTMAN POTTS & TROWBRIDGE A PARTNEI\SHIP INCLUDING PROFESSIONAL CORPORATIONS Secretary of the Commission October 13, 1998 Page 2 operating authority for the Vogtle plant. 1 At the same time, the proposed rule provides interested parties ample opportunity to bring legitimate issues concerning such transfers to the Commission's attention. We commend the Commission for having the vision and willingness to proactively restructure its procedures to more effectively respond to the issues facing the electric power industry.

We fully agree with the Commission that it possesses the necessary legal authority under the Atomic Energy Act to provide for legislative-style hearings for license transfer applications. As observed in the statement of considerations (63 Fed. Reg. at 48,645), the courts have held that Section 189.a of the Atomic Energy Act does not require formal "on-the-record" hearings under the Administrative Procedure Act. See,~' City of West Chicago v. U.S. Nuclear Regulatory Commission, 701 F.2d 632, 641-45 (7th Cir. 1983).

Accordingly, the Commission has the flexibility to fashion appropriate hearing procedures for resolving issues and reaching decisions on particular types of proposed actions which do not include the full panoply of procedures of a formal adjudicatory type hearing. Id. See also Nuclear Information Resource Service v Nuclear Regulatory Commission, 969 F.2d 1169, 1173 (D.C. Cir. 1992); Kelley v. Selin, 42 F.3d 1501, 1511 (6th Cir. 1995). The procedures set forth in the proposed rule provide interested parties ample opportunity to identify pertinent issues concerning a proposed transfer and to bring relevant evidence to bear on those issues. Thus, the hearing provided for by the proposed rule satisfies the Atomic Energy Act's requirement that persons whose interests may be affected by a license transfer be granted an opportunity for a hearing.

Although Shaw Pittman and the Utilities strongly support the NRC's efforts to streamline the hearing process for license transfers, we believe that several aspects of the proposed rule require further clarification and refinement. Our first concern is that the rule does not identify the nature of the circumstances that would permit the NRC Staff to delay the approval or denial of a license transfer request pending any requested hearing. The language of the proposed rule now provides that the Staff "is expected to promptly issue approval or denial of the license transfer" after the Safety Evaluation Report ("SER") is completed (proposed 10 C.F.R. § 2.1316(a), 63 Fed. Reg. at48,651) (emphasis added), with 1 In 1992, Georgia Power Company filed an application to transfer the license authority to operate the Vogtle Electric Generating Plant, Units 1 and 2 to Southern Nuclear Operating Company. As part of the transfer, the nuclear management organization and technical operating staff for Vogtle were to be transferred in toto to Southern Nuclear. A petition for leave to intervene was filed in the proceeding which claimed that the NRC should not permit Georgia Power to transfer the Vogtle license to Southern Nuclear because Vogtle's nuclear management allegedly lacked the requisite character, competence and integrity to abide by regulatory requirements. Despite the fact that the nuclear management and staff for the plant would remain the same, the licensing board admitted the contention. The result was a lengthy evidentiary hearing which dragged on for four years before a settlement was reached between the Company and the petitioner.

SHAW PITTMAN POTTS & TROWBRIDGE A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS Secretary of the Commission October 13, 1998 Page 3 no clarification in either the rule or the statement of considerations of the circumstances under which the Staff would not promptly issue such approval or denial. We believe that either the final rule or its statement of considerations should describe the circumstances or the factors that the NRC Staff are to consider in deciding whether to postpone approval or denial of a transfer pending a requested hearing.

License transfers do not, as recognized by the Commission, generally involve "changes to plant operations or significant changes in personnel of consequence." 63 Fed.

Reg. at 48,644. Accordingly, we believe that either the final rule or its statement of considerations should clearly indicate that the Staff will promptly issue its approval or denial of a transfer upon completion of the SER, except in unusual circumstances where a transfer raises significant issues directly affecting plant safety. This clarification would provide affected parties with a clearer understanding of the potential for delays in the application process and should, at the same time, avoid unnecessary and unexpected delays in implementing the restructuring to the detriment of ratepayers and stockholders alike.

Second, the Commission should clarify the evidentiary value of written position statements and oral presentations allowed under the proposed rule. The statement of considerations notes that under the proposed rule intervenors would be allowed an opportunity for oral presentation to be included in the record, 63 Fed. Reg. at 48,646, as well as an opportunity to file, as expressly provided for by proposed 10 C.F.R. § 2.1322(a)(l), a written statement of position and written testimony with supporting affidavits. Allowing written statements of position and oral presentations ensures that affected parties will have the opportunity to express their positions on the license transfer. However, the integrity of the hearing process requires that all factually related contentions be supported by valid evidence subject to review and rebuttal by opposing parties. To this end, the Commission should make clear that written position statements and oral presentations, in and of themselves, do not constitute valid evidence upon which the Commission could base its decision. Rather, a party must document and support its position by "written testimony with supporting affidavits" as provided for by the proposed rule. Such a requirement is necessary to afford parties a fair opportunity to respond to issues and contentions raised in the hearing process. Also, by so clarifying the proposed rule, the Commission would make clear that the new streamlined hearing process will still be subject to the same evidentiary requirements as other Commission proceedings.

Third, the Commission should revise the proposed rule to expressly allow parties to submit proposed questions to the Presiding Officer with respect to rebuttal testimony. Under the proposed rule, the deadline for filing proposed questions for the Presiding Officer to ask witnesses on cross-examination is the same as that for filing rebuttal testimony. No provision is expressly made by the proposed rule for the filing of questions with respect to rebuttal testimony (although the Presiding Officer could provide for the filing of such questions). Since rebuttal testimony, by definition, would directly challenge a party's

SHAW PITTMAN POTTS &TR.OWBRIDGE A PARTNERSHI P INCLUDING PROFESSIONAL CORPORATIONS Secretary of the Commission October 13, 1998 Page4 primary evidence, a party's legitimate position could be severely undermined if it were denied the opportunity to suggest questions to the Presiding Officer for the cross-examination of rebuttal witnesses. Moreover, because a party can be expected to be familiar with the factual underpinnings of its written testimony, it would be in a position to submit questions that would help ensure that seriously flawed or misleading rebuttal testimony would not be allowed to enter the record unchallenged. To rectify this shortcoming of the proposed rule, we recommend that the proposed rule be revised to allow parties to submit proposed questions on rebuttal testimony within seven days of the filing of the rebuttal testimony.

Sufficient time exists under the proposed rule's schedule timeframe to incorporate this additional filing without extending the commencement of the oral hearing beyond 65 days after the Commission 1 s notice of granting a hearing.

2 Fourth, in addition to establishing a schedule deadline in proposed 10 C.F.R. § 2.1322 for the filing of written testimony (within 30 days after the notice of granting a hearing) and rebuttal testimony (within 20 days after the submittal of written testimony),3 proposed 10 C.F.R. § 2.1323(a) provides that "[a]ll direct testimony in an oral hearing shall be filed no later than.Ll. days before the hearing or as otherwise ordered or allowed pursuant to the provisions of§ 2.1322." 63 Fed. Reg. at 48,652 ( emphasis added). This language is confusing and could arguably be read to allow the filing of direct testimony subsequent to the 30 day deadline provided for by proposed 10 C.F.R. § 2.1322(a)(l). Given the express provisions of proposed 10 C.F.R. § 2.1322(a)(l) on the filing of direct and rebuttal testimony, Shaw Pittman and the Utilities believe that proposed 10 C.F.R. § 2.1323(a) is an unnecessary provision and should be deleted from the final rule. Alternatively, the language of proposed 10 C.F.R. § 2.1323(a) should be revised to provide that "[a]ll direct and rebuttal testimony in an oral hearing shall be filed in accordance with the provisions of 10 C.F.R. § 2.1322."

Fifth, the Commission should expressly clarify in its promulgation of the final rule whether, and to what extent, license transfer applications filed before the effective date of the final rule will be subject to the new legislative-style hearing process. Applying the new process to pending applications would allow these applicants to enjoy the benefit of a more expeditious hearing process with no harm to an opposing partis ability to contest the 2 On a related matter, we presume that suggested cross-examination questions would, or could, be filed confidentially with the Presiding Officer analogous to the filing of cross-examination plans under 10 C.F.R. § 2.743(b)(2). Neither the proposed rule nor the statement of considerations, however, expressly addresses whether such is to be the practice. The Commission should clarify in the final rule, or the statement of considerations, that suggested cross-examination questions can be filed confidentially with the Presiding Officer.

3 Proposed 10 C.F.R. § 2.1322 provides that these deadlines can be changed by order of the Presiding Officer.

SHAW PITTMAN POTTS &TROWBRIDGE

/\ PARTNERSHIP INCLUDING n.OFES.510N/\L CORPOMTIONS Secretary of the Commission October 13, 1998 Page 5 application. In addition, licensees would not be encouraged to postpone filing license transfer applications until after the rule is effective, thereby avoiding a surge of applications during the preliminary development of the new process.

Accordingly, Shaw Pittman and the Utilities believe that the Commission should apply the new legislative-style hearing process to license transfer applications pending at the time the rule becomes effective to the maximum extent practicable.4 For pending applications for which the Commission has not yet published its notice of receipt in the Federal Register, the Commission could apply the new process in its entirety to the pending application. For pending applications where such notice has already been published, the Commission could either publish a second notice initiating the streamlined process and its related deadlines or await the publication of the notice of opportunity for hearing (which under the Commission's current practice is issued in conjunction with the order approving the transfer) to initiate the new hearing process. For those instances where a notice of opportunity for hearing has been already been published, any subsequent notice of hearing issued by the Commission should provide for the use of the legislative-style hearing procedures provided for by the new rule.

Shaw Pittman and the Utilities appreciate this opportunity to provide these comments on the Commission's proposed streamlined hearing process for the NRC's approval oflicense transfers. We strongly support the Commission's efforts to improve the efficiency and effectiveness of its hearing procedures and believe that the proposed streamlined hearing process for license transfers is a significant advancement to that end. We respectfully submit that the clarifications and minor revisions suggested above will further promote the Commission's goal underlying its new proposed hearing procedure of providing a balanced yet expeditious review oflicense transfer applications.

Sincerely,

(?au.()~

Paul A. Gaukler SHAW, PITTMAN, POTTS &

TROWBRIDGE 4 Because the proposed rule would greatly improve the efficiency of the license transfer process, Shaw Pittman and the Utilities urge the Commission to make any final rule immediately effective upon its promulgation.

Under the Administrative Procedure Act, the NRC may dispense with the 30-day notice period and make a rule immediately effective if the rule is not substantive or upon a finding of good cause.

DOCKETED US RC NUCLEAR ENERGY INSTITUTE October 13, 1998 Mr. John C. Hoyle The Secretary of the Commission U.S. Nuclear Regulatory Commission Mail Stop 0-16 G15 One White Flint North 11555 Rockville Pike Rockville, MD 20852-2738 ATTN: Rulemaking and Adjudications Staff "98 OCT 14 p J :Q 1 OFI-\-

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SUBJECT:

Proposed Rule: Streamlined Hearing Process for NRC Approval of License Transfers (63 Fed. Reg. 48644 - September 11, 1998)

Dear Mr. Hoyle:

The Nuclear Energy Institute ("NEl"), 1 on behalf of the nuclear energy industry, submits these comments in response to the NRC's proposed Streamlined Hearing Process for NRC Approval of License Transfers. The proposed rule would establish, in a new Subpart M, uniform procedures and rules of practice for handling requests for hearings associated with license transfer applications.

The Commission is not compelled to conduct contested licensing proceedings as adjudicatory proceedings under the Atomic Energy Act, the Energy Reorganization Act, and the Administrative Procedure Act. Rather, the NRC can comply with those requirements through the adoption of procedures that it concludes will provide fundamental due process to all parties. The proposed Subpart M procedures and rules of practice satisfy those requirements because they include the elements of*..... * *.~... ~-

notice, the right to present evidence, and the full and timely disclosure of the fact'.'s * * **-,*.. ~

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upon which a decision on the record can be rendered.

1 NEI is the organization responsible for establishing unified nuclear industry policy on matters.,

affecting the nuclear energy industry, including the regulatory aspects of generic operational and * ~, *

• technical issues. NEI's members include all utilities licensed to operate commercial nuclear power .,,, :...... I',.'

plants in the United States, nuclear plant designers, major architect/engineering firms, fuel

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• fabrication facilities, nuclear materials licensees, and other organizations and individuals involved in the nuclear energy industry.

CT 1 5 1998 Acknowledged by card.................,.... a,,0000,...

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Mr. John C. Hoyle October 13, 1998 Page 2 The use of informal proceedings rather than adjudicatory, trial-type proceedings also is fully consistent with the Commission's other initiatives to improve the efficiency and effectiveness of the agency's programs and processes. In the Senate FY99 Energy and Water Development Appropriations Act, the Committee expressed concern about the "interminable adjudicatory process" and encouraged the Commission to reconsider its current licensing process. The proposed rule, and the Commission's Policy on Conduct of Adjudicatory Proceedings (63 Fed. Reg. 41872 -August 5, 1998) are responsible initiatives that address those concerns.

The proposed rule should result in a quicker, more streamlined process for the agency's consideration of license transfer applications, whether or not the license transfer involves a license amendment. The adoption of the proposed rule will be beneficial to the NRC, the industry, and to interested members of the public by ensuring that the parties to the proceeding properly focus on those matters relevant to the proposed license transfer.

To better accomplish that goal, the industry recommends that the NRC clarify one aspect of the proposed rule. The Supplementary Information in the proposed rule states, "[a]lthough other requirements of the Commission's licensing provisions may also be addressed to the extent relevant to the particular action, typical staff review of such applications consists largely of assuring that the ultimately licensed entity has the capability to meet financial qualification and decommissioning funding aspects of NRC regulations." Where the proposed change only involves a transfer of ownership of all or a portion of the facility, both NRC staff review and the Subpart M proceeding should be limited solely to the capability of the transferee to meet financial qualifications and decommissioning funding requirements. The inclusion in the sentence quoted above of the qualifiers "typical" and "largely" suggests a potentially broader scope that would not be appropriate for that type of proceeding.

The adoption of the proposed rule is another very positive development that will improve the effectiveness of the NRC's licensing processes. The more efficient license transfer process envisioned by the proposed rule should result in the prompt and fair resolution of any contested issues that are pertinent to the proposed action, and thus result in the improved use of resources of the NRC and all parties to the proceeding. That result is in the best interests of the NRC, the industry, and the public.

Mr. John C. Hoyle October 13, 1998 Page 3 The industry would be pleased to respond to any questions that the NRC may have regarding these comments or that otherwise may be pertinent to the NRC establishing a disciplined license transfer process.

Sincerely, BY COURIER

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Lewis Sumner Vice President Hatch Project Support Southern Nuclear Operating Company, Inc.

40 Inverness Parkway Post Office Box 1295 Birmingham, Alabama 35201 -

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October 13, 1998 Docket Nos.

50-348 50-364 Mr. John C. Hoyle, Secretary 50-321 50-366 U. S. Nuclear Regulatory Commission 50-424 50-425 ATTN: Rulemakings and Adjudications Staff Washington, D. C. 20555-0001 Energy to Serve Your World"'

HL-5695 LCV-1205 Comments on 10 CFR 50.55(a) Proposed Rule, "Streamlined Hearing Process for NRC Approval of License Transfers "

(63 Federal Register 48644 dated September 11, 1998)

Dear Mr. Hoyle:

Southern Nuclear Operating Company (SNC) has reviewed the proposed rule, "Streamlined Hearing Process for NRC Approval of License Transfers," published in the Federal Register on September 11, 1998. In accordance with request for comments, SNC is in total agreement with the NEI comments that are to be provided to the NRC.

Respectfully submitted, H. L. Sumner, Jr.

HLS/JEH cc: (See next page.)

U.S. Nuclear Regulatory Commission Page2 October 13, 1998 cc:

Southern Nuclear Operating Company Mr. M. L. Stinson, General Manager - Plant Farley Mr. P. H. Wells, General Manager-Plant Hatch Mr. J. T. Gasser, General Manager - Vogtle Electric Generating Plant Mr. D. N. Morey, Vice President - Plant Farley Mr. J.B. Beasley, Vice President - Plant Vogtle U.S. Nuclear Regulatory Commission, Washington, DC Mr. J. I. Zimmerman, Licensing Project Manager - Farley Mr. L. N. Olshan, Project Manager - Hatch Mr. D. H. Jaffe, Senior Project Manager - Vogtle U. S. Nuclear Regulatory Commission, Region II Mr. L. A. Reyes, Regional Administrator Mr. T. P. Johnson, Senior Resident Inspector - Farley Mr. J. T. Munday, Senior Resident Inspector - Hatch Mr. J. Zeiler, Senior Resident Inspector - Vogtle HL-5695 LCV-1205 lllf ~~i\: NG..,,~

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Washington, D.C. 20036-5869 202-467-7000 Fax: 202-467-7176 Alvin H. Gutterman 202-467-7468 October 13, 1998 VIA: HAND DELIVERY Secretary of the Commission, U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 DOCKETED S'I C "98 OCT 14 A10 :31 OFF:CI vr SE RULE~',

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'10POSED AfF Morgan, Lewis

& Bockius LLP COUNSELORS AT LAW Attention: Rulemaking and Adjudications Staff Re:

Dear Sir:

Proposed Rule for Streamline Hearing Process for NRC Approval of License Transfers (63 Fed. Reg. 48644)

In response to the Nuclear Regulatory Commission's (NRC) request for comments on its proposed rule for a streamlined hearing process for NRC approval of license transfers (63 Fed.

Reg. 48644, Sept. 11, 1998), we hereby submit comments on behalf of Alliant Utilities - IES Utilities and STP Nuclear Operating Company. We have reviewed the comments being submitted by the Nuclear Energy Institute and endorse those comments. In addition we are providing the following additional comments.

The proposed rule is needed and should be adopted promptly. As recognized by the NRC notice, expeditious decision making by all agencies, including the NRC, is often essential to the success of business transactions of the sort that give rise to license transfer applications. At the same time, license transfers generally do not affect the operation of nuclear plants and are not likely to have a significant affect on public health and safety. Consequently, an efficient process for approving license transfer applications is both necessary and appropriate.

The proposed rule incorporates a number of features that would eliminate some frequent causes of delay in licensing hearings, while preserving a fair opportunity for persons whose interests may be affected by the license transfer to be heard.

oc 1 5 1998 Acknowledged by card.................................,.

Philadelphia Washington New York Los Angeles Miami Harrisburg Princeton London Brussels Frankfurt Tokyo

LI.S. NUCLEAR REGULATORY COMMIS RULEMAKINGS & ADJUDICATIONS ST.

OFRCEOFTHESECRETARY OF THE COMMtSStC>N

Secretary of the Commission October 13, 1998 Page2 Key features of the proposal that we believe are essential to its success are:

Moi:gan. Lewis

&Bocki.USUP

1.

The NRC staff will continue to have the authority, while hearing requests are pending, to issue immediately effective orders approving license transfers.

2.

If the Commission determines that there should be a hearing on an application, it will designate the issues for hearing at the same time it rules on the request for hearing and designates the Presiding Officer. This will prevent delays of the sort that have sometimes occurred in hearings as a result of expansion of the scope of hearings by Presiding Officers through such mechanisms as sua sponte identification of issues and admission of late-filed contentions.

3.

Any hearing will be legislative, rather than adjudicatory.

4.

Discovery will be limited to maintenance of a docket file by the Secretary. This will eliminate an element of past adjudicatory hearings that has been a frequent cause of delay and expense.

5.

A schedule will be established for each hearing to assure it is conducted promptly.

6.

The Commission will issue the only hearing decision, avoiding the delays that would result from a process involving a Presiding Officer initial decision and subsequent Commission review of that decision.

The retention of these features in the final rule will assure that the rule makes a positive contribution to regulatory efficiency. Suggestions for a few enhancements to the proposed rule are provided in the attachment to this letter. We appreciate the opportunity to provide these comments.

Please call me if you have any questions about these comments or suggestions.

Sincerely, AL*/~

Alvin H. Gutterman Enclosure cc(w/encl):

Kenneth E. Peveler Mark A. McBurnett

SUGGESTED CHANGES TO PROPOSED SUBPART M

1.

Hearings Should Normally Be Conducted on Written Submissions: Proposed Subpart M

(§2.1308(d)(2)) provides that hearings will be oral unless all parties agree to a hearing on written submissions. Other Nuclear Regulatory Commission (NRC) procedures for expedited hearings (10 CFR Part 2, Subpart L ("Subpart L") and 10 CFR Part 110), provide that hearings are normally on written submissions absent circumstances justifying oral hearings. The Commission's Supplementary Information on the proposed rule explains that this provision is intended to avoid the delay that occurs to consider a party's request that a hearing be oral. There are alternative ways to avoid such delays without substituting the delay that results from oral hearings. The preferred alternative is to unequivocally state that "oral hearings shall not be held" in the absence of a determination by the Presiding Officer, on his own motion, that an oral hearing is necessary to resolve an issue that depends on the credibility of witnesses.

Alternatively, if the Commission decides to afford oral hearings as a matter of policy, it could provide that hearings will be on written submissions unless a party requests an oral hearing. This would avoid any delay associated with consideration of a request for an oral hearing, yet not require an agreement between adversaries to avoid an oral hearing when neither party has requested one. If this alternative is selected, a time limit should be set for filing such a request. An appropriate limit would be five days after the service of an answer to the request for hearing or petition to intervene.

2.

Unreliable or Immaterial Presentations Should be Excluded: Under the proposed rule the Commission would "restrict irrelevant or duplicative testimony" (§2.131 l(a)(l)) and would assign to the Presiding Officer the authority to strike or reject duplicative or irrelevant

presentations (§2.1320(a)(9)). The Commission should not only exclude such testimony, but also exclude unreliable or immaterial testimony. The Presiding Officer should have the responsibility and power to strike or reject unreliable or immaterial presentations, just as does a Presiding Officer in a Subpart L proceeding (10 CPR 2.1233(e)). Elimination of such material from the record will help expedite proceedings by assuring the other parties that there is no need to rebut such material.

3.

The Computation of Time Rule Should Encompass Other Responses: The proposed rule

(§2.1314(c)) provides three additional days to respond to papers that are served by mail only pursuant to §2.1307. The same additional time should be allowed for other responses authorized under the proposed rules ( e.g., §2.1325(b )). The apparent rationale for allowing extra time to respond to pleadings that are served by mail is equally applicable to such other authorized responses. This change could be effected by revising proposed §2.1314(c) by deleting "a paper served pursuant to §2.1307" and substituting "service of a paper."

4.

The Record for Decisions Should Be Clarified: The proposed rule (§2.133 l(b)) states that the decision on the application will be based on the hearing record. The Commission undoubtedly intends that it also may consider other information on the docket when deciding matters that were not designated as issues for the hearing. This intent could be clarified by revising proposed § 2.1331 (b) to read: "The decision on issues designated for hearing pursuant to §2.1308 will be based on the record developed at hearing."

2

5.

The Reference to §2.790 Should Be Clarified: The proposed rule (§2.1304) properly states that the procedures in Subpart M are the exclusive basis for hearings on license transfer applications. Proposed §2.1330(b), however, refers to 10 CFR 2.790 as if that provision would apply to a hearing conducted under Subpart M. Section 2. 790, by its own terms, applies only to proceedings conducted under Subpart G. To avoid the possible unintended implication that other Subpart G procedures also may apply, §2. l 330(b) should be clarified. A possible clarification is to insert after the word "under" in §2.1330(b ), the words "the policy reflected in."

3

AmerGen A PECO Energy/British Energy Company "98 VIA FEDERAL EXPRESS U.S. Nuclear Regulatory Commission OOCHETED U l\.J:"'lf"'

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OCT 13 P 3 :38 ATTN: John C. Hoyle, Secretary of the Commission Mail Stop 0-16 Cl One White Flint North 11555 Rockville Pike Rockville, MD 20852-2738 AmerGen Energy Company, LLC 965 Chesterbrook Blvd, 63C-3 Wayne, PA 19087-5691 Telephone: 61 0 640 6600 Fax: 610 640 6611 October 12, 1998 Re:

Comments on Proposed Rule, "Streamlined Hearing Process for NRC Approval of License Transfers" (63 FR 48644)

Dear Mr. Hoyle:

The following comments of AmerGen Energy Company, LLC ("AmerGen") are submitted in response to the NRC's Proposed Rule providing for a "Streamlined Hearing Process for NRC Approval of License Transfers," 63 FR 48644 (September 11, 1998) (hereafter Proposed Subpart M). AmerGen is a company formed for the purpose of acquiring and operating nuclear power plants in the United States. Consequently, AmerGen is particularly interested in the regulatory requirements for NRC approval of license transfers.

AmerGen favors the proposed rule and urges its prompt adoption. AmerGen believes that application of the procedures provided in the proposed rule will contribute significantly to assuring that any hearing requests on license transfer applications will be handled efficiently and effectively, while at the same time preserving the essential elements necessary to assure that there is a fair hearing of the views and evidence presented by any member of the public whose interests may be affected, consistent with the requirements of the Atomic Energy Act. As recognized by the NRC notice, expeditious decision making by all agencies, including the NRC, is often essential to the success of business transactions of the sort that give rise to license transfer applications. At the same time, license transfers generally do not affect the operation of nuclear plants. Therefore, they are not likely to have a significant effect on the public health and safety. Consequently, an efficient process for approving license transfer applications is both necessary and appropriate.

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OCT 1 5 1998 Acknowledged by card..............................

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John C. Hoyle, Secretary of the Commission October 12, 1998 Page 2 While this rulemaking is pending, the Commission should apply the procedures set out in the proposed rule to any applicant for NRC consent to a license transfer that requests such treatment.

NRC has the statutory authority to issue a case-specific order applying the procedures described in the Proposed Subpart M to any hearings requested in connection with such an application.

There are no specific rules governing hearings with respect to a 10 CFR § 50.80 consent to a license transfer. The scope of Subpart G (NRC' s procedures for formal adjudications) does not make any reference to review oflicense transfer requests (10 CFR § 2.700), and no other regulation explicitly requires formal adjudications for review of license transfers under Section 50.80. Rather, Section 50.80 states that NRC will approve a license transfer "[a]fter appropriate notice has been made to interested persons, including the existing licensee, and observance of such procedures as may be required by the Act or regulations or orders of the Commission." 10 CFR § 50.80(c) (emphasis added). This reference to "orders" contemplates the Commission's authority to establish procedures with a case-specific order.

Formal adjudicatory hearings regarding license transfer requests are not required under NRC's rules, the Atomic Energy Act of 1954, as amended, (the Act) and/or the Administrative Procedure Act (APA). Under parallel circumstances, where the NRC had no specific separate hearing procedures for contested NRC actions regarding materials licenses, the Commission held that it could proceed with case-specific informal hearing procedures and that it was not required to hold a formal, trial-type hearing under the Act and the APA. Kerr-McGee Corporation (City of West Chicago Rare Earth Facility), CLI-82-2, 15 NRC 232, 247 (1982) affirmed, City of West Chicago

v. NRC, 701 F.2d 632 (7th Cir. 1983). See 5 U.S.C. §§ 554, 556-557. See also, Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 529, 543 (1978) (establishing the basic tenet that courts cannot impose procedures on the NRC that were not provided by Congress).

Section 189a(l) of the Act (42 U.S.C. § 2239) provides that "in any proceeding under this act for the... amending of any license... or application to transfer control,... the commission shall grant a hearing." However, Section 189a does not impose any requirement that a formal trial-type hearing be conducted. See Union of Concerned Scientists v. NRC, 920 F.2d 50, 53 (D.C. Cir. 1990) (noting that "the Act itself nowhere describes the content 9f a hearing or prescribes the manner in which th[e] 'hearing' is to be run"). In the City of West Chicago case, the Commission held that its statutory obligations for conducting a hearing were met by providing an informal hearing in which the parties were given an opportunity to present to the hearing officers their written views and documentary evidence. CLI-82-2, 15 NRC at 247.

Mr. John C. Hoyle October 12, 1998 Page3 On review, the Court of Appeals for the Seventh Circuit held that formal adjudicatory hearings were only required if the applicable legislation required a hearing "on the record" or if Congress clearly intended to have formal hearings conducted. City of West Chicago, 701 F.2d at 641 (citing United States v. Florida East Coast Ry., 410 U.S. 224, 234-238 (1973)). See also, Kelly

v. Selin, 42 F.3d 1501 (6th Cir. 1995) (NRC has discretion to hold informal hearings concerning dry cask storage of spent fuel). The Seventh Circuit acknowledged the obvious absence from Section 189 of the "magic words" "on the record" and further found no clear Congressional intention that formal hearings would be conducted. City ofWest Chicago, 701 F.2d at 641 ("We find no such clear intention in the legislative history of the [Act], and therefore conclude that formal hearings are not statutorily required for amendments to materials licenses.")

NRC's prior practice has been to conduct hearings regarding license transfers using the rules provided in Subpart G. However, the Commission clearly has the statutory authority to change this practice on a case-specific basis prior to the issuance of a Final Rule. NRC should simply provide appropriate notice in its initial Federal Register publication on any license transfer application that the Subpart M procedures will apply. Prior to the City of West Chicago case, the NRC's practice had been to conduct a full-blown adjudicatory hearing whenever a hearing was requested on a materials licensing action, even though no specific rules required this. City of West Chicago, 701 F.2d at 646. Nevertheless, the Seventh Circuit affirmed the NRC's right to set new case-specific procedures as long as it gave adequate notice. Id. at 647 ("though an agency may be bound by its own established customs and practices, it may satisfy due process requisites by prior public notice of its new policy or requirements"). In that case, the intervenor had corresponded with the NRC prior to the NRC' s decision to provide informal hearings, and the Seventh Circuit found that though the "issue of adequate notice [was] a close one," this correspondence alone between the NRC and the City provided "adequate notice that the Commission intended to base its decision on written submission, rather than on a formal adjudicatory proceeding." Id. at 647. The Seventh Circuit opined: "We do not doubt the authority ofNRC to change its procedures on a case-by-case basis with timely notice to the parties involved, but we question the wisdom of doing so without the benefit of published regulations." 701 F.2d at 647 (citation omitted).

Notably, following the 1982 City of West Chicago case, the NRC continued to issue case-specific orders for informal hearings on materials license matters, without the benefit of any published rules, until 1987-1989 when the NRC promulgated Subpart L of 10 CFR Part 2 to govern such hearings. See, e.g.. Perf-Master, Inc. (Well Logging Source), 1986 WL 328202 (NRC) (Oct. 9, 1986); Radiology Ultra Sound Nuclear Consultants (Strontium 90 Applicator), 1986 WL 329739 (NRC) (Oct. 9, 1986). See Informal Hearing Procedures For Materials Licensing Adjudications, 54 FR 8269 (February 28, 1989); Proposed Rule, 52 FR 20089 (May 29, 1987). In contrast, Subpart M has already been published.

Mr. John C. Hoyle October 12, 1998 Page4 The conforming administrative license amendments accompanying a license transfer request arguably could fall within the existing regulations providing for formal Subpart G hearings.

However, the conforming amendments are not a prerequisite to NRC's consenting to a license transfer. Rather, NRC has held that no amendment is required in connection with its consent to transfers under Section 184 of the Act and 10 CFR § 50.80. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-92-04, 35 NRC 69, 77 (1992). Therefore, any formal hearing on the conforming amendments would be limited to the issue of whether such amendments should be issued after NRC has approved the license transfer, i.e., whether the new licensee, as the approved owner/operator, should have its name replace the former licensee's name on the license. No meaningful issues could be litigated in such a proceeding. The substantive issues relating to the license transfer should all be decided in the 10 CFR § 50.80 license transfer proceeding governed by a case-specific order establishing Subpart M procedures.

In Citizens Awareness Network, Inc. v. NRC, 59 F.3d 284 (1st Cir. 1995), the Court of Appeals for the First Circuit held that the NRC erred in failing to provide an opportunity for a hearing under Section 189(a) in connection with its change in policy relating to decommissioning. Id.

at 296. However, this case is inapposite because the issue was not whether a formal vs. informal hearing satisfied Section 189(a) of the Act, but rather the lack of any hearing. The intervenors repeatedly requested that the NRC initiate a formal hearing regarding NRC's approval of Yankee Atomic Electric Company's "early component removal process," but the Commission refused to conduct any hearing based upon its new policy. See Id. at 290. On review, the First Circuit concluded that the policy change triggered the Section 189(a) hearing rights, because "the statute's phrase 'modification of rules and regulations' encompasses substantive interpretative changes like the one involved here, and therefore that the Commission cannot effect such modifications without complying with the statute's notice and hearing provisions." Id. at 292 (citing Natural Resources, Etc. v. NRC, 695 F.2d 623, 625 (D.C. Cir. 1982) ("Fair notice to affected parties requires that the Commission not alter suddenly and sub silentio settled interpretations of its own regulations.")).

In contrast, the Commission's Proposed Subpart M rulemaking involves a procedural issue not a substantive one. So long as NRC provides fair notice to the parties that it intends to proceed using these procedures on a case-specific basis, NRC' s authority to so under the Act and the AP A is supported by judicial precedent.

Mr. John C. Hoyle October 12, 1998 Page 5 AmerGen appreciates this opportunity to share with the Commission its views regarding the Proposed Subpart M. AmerGen welcomes the Commission's initiative to establish a fair and effective process for the expeditious consideration of the views of interested parties in connection with NRC's review and approval oflicense transfer applications under 10 CFR § 50.80.

Respectfully submitted, Edward J. Cullen, Jr.

Secretary

C. Lance Terry Senior Vice President

& Principal Nuclear Officer Secretary of the Commission, U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001

'RJELECTRIC Attention: Rulemaking and Adjudications Staff Log # TXX-98227 File # 10185 DOCKETED USNRC

'98 OCT 13 Al 1 :33 October 7, 1998 OFhC.-

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SUBJECT:

Proposed Rule for Streamline Hearing Process for NRC Approval of License Transfers (63 Fed. Reg. 48644)

Texas Utilities Electric Company (TU Electric) submits these comments in response to the Nuclear Regulatory Commission's (NRC) request for comments on its proposed rule for a streamlined hearing process for NRC approval of license transfers. TU Electric has reviewed the comments being submitted by the Nuclear Energy Institute and endorses those comments, and is providing the following additional comments.

TU Electric supports the proposed rule. As recognized by the NRC notice, expeditious decision making by all agencies, including the NRC, is often essential to the success of business transactions of the sort that give rise to license transfer applications. At the same time, license transfers generally do not affect the operation of nuclear plants and are not likely to have a significant affect on public health and safety. Consequently, an efficient process for approving license transfer applications is both necessary and appropriate.

The proposed rule incorporates a number of features that would eliminate some frequent causes of delay in licensing hearings, while preserving a fair opportunity for persons whose interests may be affected by the license transfer to be heard.

Key features of the proposal that we believe are essential to its success are:

1.

The NRC staff will continue to have the authority, while hearing requests are pending, to issue immediately effective orders approving license transfers.

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1998 Acknowledged by card wM*-*-**.. **................

COMANCHE PEAK STEAM ELECTRIC STATION P.O. Box 1002 Glen Rose, Texas 76043-1002

lJ S. NUCLEAR REGULATOR CO

~ULEMAKINGS & ADJUDICATI OFFICE THE SECR OF THE CO ISSI

TXX-98227 Page 2 of 2

2.

3.

4.

5.

If the Commission determines that there should be a hearing on an application, it will designate the issues for hearing at the same time it rules on the request for hearing and designates the Presiding Officer. This will prevent delays of the sort that have sometimes occurred in hearings as a result of expansion of the scope of hearings by Presiding Officers through such mechanisms as sua sponte identification of issues by a Presiding Officer and admission of late-filed contentions.

Discovery will be limited to the docket file maintained by the Secretary. This will eliminate a frequent case of delay and expense in past hearings.

A schedule will be established for any hearing to assure it is conducted promptly.

The Commission will issue the hearing decision, avoiding the delays that could result from a process involving a Presiding Officer decision and possibly, subsequent Commission review.

TU Electric believes that retention of these features in the final rule will assure that the rule makes a positive contribution to regulatory efficiency. TU Electric does have some suggestions for improvements or corrections to the proposed rule. These are provided in the attachment to this letter. TU Electric appreciates the opportunity to provide these comments.

Please call me if you have any questions about these comments or suggestions.

RDW/grj Attachment c -

Bob Bishop, NEI Steve Floyd, NEI 2

Sincerely, e,B-h C. L. Terry By:~~.

R~r~Walker Regulatory Affairs Manager

Attachment to TXX-98227 Page 1 of 2 SUGGESTED CHANGES TO PROPOSED SUBPART M

1.

Hearings Should Normally Be Conducted on Written Submissions: Proposed Subpart M (§2.1308(d)(2)) provides that hearings will be oral unless all parties agree to a hearing on written submissions. Other Nuclear Regulatory Commission (NRC) procedures for expedited hearings (10 CFR Part 2, Subpart L ("Subpart L") and 10 CFR Part 110), provide that hearings are normally on written submissions absent circumstances justifying oral hearings. The Commission's Supplementary Information on the proposed rule explains that this provision is intended to avoid the delay that occurs to consider a party's request that a hearing be oral. There are alternatives ways to avoid such delays without substituting the delay that results from oral hearings.

2.

TU Electric's preferred alternative is to prohibit oral hearings in the absence of a determination by the Presiding Officer, on his own motion, that an oral hearing is necessary to resolve an issue that depends on the credibility of witnesses.

Another alternative would be to provide that the hearings will be on written submissions unless a party requests an oral hearing. If this alternative is selected, a time limit should be set for filing such a request. An appropriate limit would be five days after the service of an answer to the request for hearing or petition to intervene.

Unreliable or Immaterial Presentations Should be Excluded: Under the proposed rule the Commission would "restrict irrelevant or duplicative testimony" (§2.1311 (a)(1)) and would assign to the Presiding Officer the authority to strike or reject duplicative or irrelevant presentations (§2.1320(a)(9)). The Commission should not only exclude such testimony, but also exclude unreliable or immaterial testimony. The Presiding Officer should have the responsibility and power to strike or reject unreliable or immaterial presentations, just as does a Presiding Officer in a Subpart L proceeding (1 O CFR 2.1233(e)). Elimination of such material from the record will help expedite the proceeding by assuring the other parties that there is no need to rebut such material.

3.

The Computation of Time Rule Should Encompass Other Responses: The proposed rule (§2.1314(c)) provides for three additional days to respond to papers served by mail only if responding to a paper that is served pursuant to §2.1307. The proposed rules also provide for other responses (e.g., §2.1325(b)), and there is no apparent rationale for not allowing extra time for mail service for such other responses. This could be affected by revising proposed §2.1314(c) by deleting "a paper served pursuant to

§2.1307" and substituting "service of a paper."

4.

The Record for Decisions Should Be Clarified: The proposed rule (§2.1331(b)) states that the decision on the application will be based on the hearing record. The Commission undoubtedly intends that it also may consider other information on the docket when deciding matters that were not designated as issues for the hearing. This could be clarified by revising proposed § 2.1331 (b) to read: "The decision on issues designated for hearing pursuant to §2.1308 will be based on the record developed at hearing."

1

Attachment to TXX-98227 Page 2 of 2

5.

The Reference to §2.790 Should Be Clarified: The proposed rule (§2.1304) properly states that the procedures in Subpart M are the exclusive basis for hearing on license transfer applications. Proposed §2.1330(b ), however, refers to 10 CFR 2. 790 as if that provision would apply to a hearing conducted under Subpart M. Section 2.790, by its own terms, applies only to proceedings conducted under Subpart G. To avoid the possible implication that other Subpart G procedures also may apply, §2.1330(b) should be clarified. A possible clarification is to insert after the word "under" in

§2.1330(b), the words "the policy reflected in."

2

Florida P'lfot:,~ ~ mpany, P.O. Box 14000, Juno Beach, FL 33408-0420 US IC FPL L-98-252 Mr. John C. Hoyle Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001

'98 OCT 13 A11 :33 Attn:

Rulemakings and Adjudicatons Staff

Subject:

Florida Power & Light Company Comments Notice of Proposed Rulemaking OCT 6 1998 Streamlined Hearing Process for NRC Approval of License Transfers 63 Fed. Reg. 48644 (Sept. 11, 1998)

Dear Mr. Hoyle:

Florida Power & Light Company (FPL), the licensee for the St. Lucie Nuclear Plant, Units 1 and 2, and the Turkey Point Nuclear Plant, Units 3 and 4, hereby submits the following comments on the above-referenced Notice of Proposed Rulemaking. FPL also endorses the comments of the Nuclear Energy Institute on the proposed rule.

FPL supports the proposal to further streamline the Nuclear Regulatory Commission's (NRC) adjudicatory process by eliminating administrative steps for license transfer applications that provide no added protection to the public health and safety. FPL agrees that the proposed rule will enable NRC to accomplish timely reviews of license transfer applications and thereby promote efficient industry restructuring that will enable newly formed entities to preserve nuclear energy as a viable option in the 21 st century.

In this regard, FPL concurs with the NRC's findings that support the proposal to add a new Subpart M to 10 CFR Part 2 to govern license transfer proceedings:

1.

License transfer applications generally involve no changes to plant operations or operating personnel, and no changes to the reasonable assurance of public health and safety.

2.

Formal adjudicatory hearings in contested cases involving license transfers are not required by the Atomic Energy Act or the Administrative Procedure Act.

3.

Administrative license amendments involve no safety questions and clearly involve no significant hazards considerations. Therefore, conforming license amendments should be issued before the completion of any hearing requested on the transfer application.

4.

License transfers involving changes to corporate forms of ownership of nuclear power plants lC 1998 c nowledged card.. --**----**-***....... -

an FPL Group company

GULATOR

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Mr. John C. Hoyle Page 2 involve no environmental impacts, and therefore, license transfer applications should be categorically excluded from environmental review pursuant to 10 CFR 51.22( c ).

FPL offers additional suggestions on how to further accomplish the important goal of reaching final adjudicatory decisions in a timely and efficient fashion.

First, FPL believes that the informal hearing process should be extended to all NRC adjudicatory proceedings. There is no reason why informal hearings cannot be applied to license renewal proceedings and enforcement proceedings to streamline those proceedings. The proposed process can readily accommodate technical and legal issues that could be raised in those contexts without reducing public participation in NRC adjudicatory proceedings.

Second, FPL does not believe that the Commissioners should personally be involved in developing an evidentiary record as contemplated in the proposed rule. While FPL strongly supports close Commission oversight of the Presiding Officer to ensure compliance with the Rules of Practice and with Commission orders, FPL believes that it would be an inefficient use of the time of each Commissioner to take evidence in proceedings that will not generally involve issues of public health and safety.

Third, FPL believes that allowing all parties to make oral presentations and evidence in every license transfer proceeding could defeat the underlying purpose of the proposed rule: to streamline license transfer proceedings. Since the Commission has wide latitude to fashion the rules of practice that apply to adjudicatory proceedings, the oral presentation of evidence should be limited to those situations in which the Commission believes that the proposed license transfer could have an impact on the public health and safety.

Fourth, FPL supports the concept of Commission action to ensure timely completion of license transfer proceedings. However, FPL questions whether "milestones" will in fact prevent lengthy proceedings. To ensure efficiency in this process, FPL recommends that the final rule specifically require automatic Commission review in the event that any of the schedular "milestones" are exceeded by a Presiding Officer. The Commission should freely exercise interlocutory review to ensure compliance with the Rules of Practice and with Commission scheduling orders.

Finally, the Commission should apply the concepts as discussed in its Policy Statement on Conduct of Adjudicatory Proceedings as added assurance that informal hearings on license transfer applications are conducted in an efficient manner. For example, the Commission should require the following in a final rule on license transfers: ( 1) procedures for electronic filing; (2) strict enforcement of parties' obligations by striking material from the record or dismissing a party from the proceeding for failure to comply with the Rules of Practice or with Commission procedural orders; (3) strict adherence with Commission requirements on standing, admissibility of contentions, and late intervention; and ( 4) specific Commission authorization before a Presiding Officer may proceed on an issue raised sua sponte.

Mr. John C. Hoyle Page 3 FPL appreciates the opportunity to comment on the proposed rule on license transfers.

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Thomas F. Plunkett President Nuclear Division

SOUTHERN CALIFORNIA EDISON Harold B. Ray Executive Vice President An EDISON INTERNATIONAL Company

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Proposed Changes In Nuclear Regulatory Commission (NRC)

Hearing Procedures For License Transfer Requests (Federal Register, Dated September 11, 1998, Volume 63, No. 176, Pages 48644-48653)

Attention: Rulemakings and Adjudications Staff

Dear Mr. Hoyle:

These comments are submitted by Southern California Edison Company (SCE). SCE is also a member of the Nuclear Energy Institute (NED.

SCE supports comments submitted by NEI on the proposed changes in the NRC hearing procedures and offers the following comments to amplify some key points important to SCE, which is located in California, a state that is rapidly transitioning to a competitive generation market.

SCE strongly supports the proposed rule. As the NRC's federal register notice recognizes, electric utilities are operating in a changing environment in which there will be increasing numbers of business transactions that will involve the need for NRC approval of direct or indirect license transfers. Frequently, the success of these business transactions will depend on receipt of prompt decisions from regulatory agencies, such as the NRC. Since license transfers generally do not have a significant effect on the operation of nuclear plants or the public health and safety, the public interest would be served by the adoption of more efficient expedited procedures for hearings on license transfer applications.

SCE strongly supports the following aspects of the proposed rule:

The use oflegislative hearings, rather than a formal adjudicatory process, for review oflicense transfers; Ensuring all parties of an opportunity to present oral arguments and evidence, but limiting questioning of witnesses to the Presiding OCT 1 5 1998 Acknowledged Dy card......................., --..

P.O. Box 800 2244 Walnut Grove Ave.

Rosemead, California 91770 (626) 302-1695 Fax (626) 302-4737

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Mr. John C. Hoyle Secretary Page 2 October 8, 1998 Officer, while parties have the opportunity to present recommended questions to the Presiding Officer; The establishment of a hearing docket containing all relevant documents and correspondence in the Commission's Public Document Room concurrent with the elimination of separate discovery; and The imposition of a scheduler milestones for filing of testimony and responses and for the commencement of oral hearings.

The proposed rule will improve efficiency while providing a fair process for expeditious consideration of issues regarding license transfers applications. Suggestions for minor enhancements to the proposed rule are provided in the attachment to this letter.

Sincerely, CAS:sbw: LW982720.104

SUGGESTED MINOR CHANGES TO PROPOSED SUBPART M

1.

Unreliable Or Immaterial Presentations Should Be Excluded: Under the proposed rule, the Commission would "restrict irrelevant or duplicative testimony" (§2.1311(a)(l)) and would assign to the Presiding Officer the authority to strike or reject duplicative or irrelevant presentations

(§2.1320(a)(9)). The Presiding Officer should also have the responsibility and power to strike or reject unreliable or immaterial presentations, just as does a Presiding Officer in a Subpart L proceeding (10 CFR 2.1233(e)).

Elimination of such material from the record will help expedite the proceeding by assuring the other parties that there is no need to rebut such material.

2.

3.

The Computation Of Time Rule Should Encompass Other Responses: The proposed rule (§2.1314(c)) provides for three additional days to respond to papers served by mail only if responding to a paper that is served pursuant to §2.1307. The proposed rules also provide for other responses (e.g.,

§2.1325(b)), but do not provide for the three additional days for mail service.

There is no apparent rationale for not allowing three additional days for mail service for such other responses. Proposed §2.1314(c) could be effectively revised by deleting "a paper served pursuant to §2.1307" and substituting "service of a paper."

The Record For Decisions Should Be Clarified: The proposed rule

(§2.1331(b)) states that the decision on the application will be based on the hearing record. The Commission undoubtedly intends that it also may consider other information on the docket when deciding matters that were not designated as issues for the hearing. This could be clarified by revising proposed §2.1331(b) to read: "The decision on issues designated for hearing pursuant to §2.1308 will be based on the record developed at hearing."

DOC PRO Smdalyof the Commmio!I USNRC W~on, D, C. 20555 Om Scadaiy and Conmns.,ionmj Mml.Lm 3133 Fairfield st Phil&., PA 19136 (215} 676-1291 DOC ETED USNRC "98 SEP 29 P 3 :46 1'ea.Y indudth cvmmcnts n the dodrl for tht slreamlined haring procm m lianse transfer casts

• Thacruks arc IKllhing but 1.tianst for the ticcmctto ae ~~want.No CRIIS eumination S&y anything~ want. You WJHt diallaigcd.

No lffll£d-Hearing olficcr IS the only one to ask. questions and he caa igrm ~

might embarrass the fK'tl!Stt..

Alrf"Mlhc~ Wlllt UJ irmk at K.aagM-, Coult sorry I meant~.bcariag.

AD parties will w opporbmilyto praal lcslimorJ, but 1hctewill be DC diKowsy

• tut tbci"twil be no read hy11po11 -whidt fnfingl of law and condllSIOIIS of lads may ltll.

"paal flndingt arc sulbciaJt. These license trwfm COff('.fflf sprafic sites, but 'gaml fmdings att suttm tor alicarx traict. Thli's hkc fflllg a law firm to tat a driYing liccme ~

for a dial. Tut 'gcncral find~' i& that the lawyer can pas.s the driving liccnsc tt.SI for his dieal.

1 wlt that I could Sl/,

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Mr Marvin Lewis 3133 Fair6dd St Philadelphia, PA 19136-1107 0

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September 24, 1998 The Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, DC 20055-0001 Attention: Rulemaking and Adjudication Staff

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. I J f/\FF Re: NRC's Proposed Rule for Streamlined Hearing Process in License Transfer Cases

Dear Mr. Secretary:

Local 369, Production and Maintenance Workers, Utility Workers Union of America, AFL-CIO represents 197 workers at Boston Edison Company's Pilgrim Nuclear Power Station in Plymouth, MA. As you may be aware, Boston Edison Company is in the process of selling the Pilgrim Power Station and will be filing for approval of the transfer of its license, if it has not done so already. For the reasons set forth below, the Local is very concerned about the pending sale and intends to petition the NRC for approval to participate in any hearings scheduled on Boston Edison's license transfer proposal. The following comments are submitted in an effort to highlight potential problems with the proposed streamlined process.

Although the Local recognizes the NRC's need to streamline the hearing process given the increase in the number of requests related to reactor operating licenses in recent years, we are concerned that a process that proceeds too rapidly (i.e. with a goal to approve the transfer request within six to eight months) could compromise the Union's and NRC's ability to obtain critical information about the license transferee. For example, given the fact that the Pilgrim plant has been subject to an NRC-mandated shutdown, it is critical to the Union, its members and the local economy, that the license transferee have the experience and ability to avoid such a shutdown in the future. This determination can only be made after an extensive and necessarily time-consuming, review of the licensee's operating record and Licensee Event Reports. A rush to approval could compromise this review.

We are also concerned that if the approval process proceeds too rapidly, Boston Edison, or any similarly situated company, would have little incentive to resolve outstanding labor disputes prior to the license transfer. In the case of the Pilgrim sale, Boston Edison Company has refused to include in its proposed purchase and sale agreement, the requirement that a prospective buyer assume the Union collective bargaining agreement. That collective bargaining agreement protects our members' wages and working conditions, as well as their safety and, by extension, the public's safety as well. If the Union is unable to secure these protections through Boston Edison or to obtain comparable benefits and protections with a new owner prior to approval of the license transfer, then significant disruptions to the plant's operations could result. To avoid such an occurrence, the approval process must take labor issues into consideration and ensure A kno edged by 3 0 1998

L AR REGULA ORY COMMI ION AKINGS & ADJUDICATI AFF OFFICE OF THE ARY OF THE COMMI I

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that they are resolved prior to issuing of any transfer request.

Finally, the Union is concerned that in the effort to streamline and speed up the hearing process, the NRC not define "participant" so narrowly that it would not be permitted to intervene. For all of the reasons set forth above, Local 369 and other similarly situated unions must be afforded the opportunity to participate in license transfer hearings; to have their questions answered and their opinions considered.

Thank you for your consideration of the Local's concerns.

Very truly your, Patrick Camey President, Local 3 69 Utility Workers Union of America 120 Bay State Drive Braintree, MA 02184

DOCKET NUMBER 0 ROPOSED AUi p ~ J 51

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September 20, 1998 DOCKETED USNRC (jJ "98 SEP 22 A 7 :41 The Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, DC 20055-0001 Attention: Rulemaking and Adjudication Staff

Subject:

Comments on Proposed Rule 10 CFR 2 Subpart Part M Federal Register: September 11, 1998 (Volume 63, Number 176)

Page 48644-48653 OFF li..

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I have been a Licensed Operator (op 10984) for 6 years and work at the Pilgrim Nuclear Power Station. I have been an employee of Boston Edison, Pilgrims owner, for 10 years.

Currently, Boston Edison is planning to sell Pilgrim and transfer the operating license.

My comments are directed more to what is missing in the proposed rule rather that to what it contains.

Comment 1. In response to the statement "In general, license transfers do not involve any changes to plant operations or significant changes in personnel of consequence to the continued reasonable assurance of public health and safety, but rather involve changes in ownership or partial ownership of facilities at a corporate level." this is grossly misinformed and a dangerous assumption to base the transfer of an operating license.

The factual matter is that significant losses of critical personnel must be anticipated and factored into the transfer decision. The training time required to replace Licensed Operators and other Critical Personnel of a year or more must be considered in the transfer proceedings. If the retention of critical plant personnel is not assured in advance of the license transfer the pressures on the remaining personnel can greatly reduce the margin of safety to the public. Requiring critical personnel to work extended shifts due to staff shortages, unavailability or lack of qualified staff, has a direct effect on their ability to correctly perform needed tasks during transients and normal operation. The proposed rule must require the applicant to submit a critical staff retention plan. This is a matter clearly with in the jurisdiction of the Commission1, §2.1308 (c) of the proposed rule.

Comment 2. In response to the aspect of the rule where there is no provision for any separate discovery" and relies on the public document room. The Public Document Room is difficult to use. I would prefer a separate section on the NRC web site for each 1 §50.47 Emergency plans. (b) (2) On-shift facility licensee responsibilities for emergency response.... adequate staffing to provide initial facility accident response in key functional areas is maintained at all times, timely augmentation of response capabilities is available....

Also 50.54(m) (I), 50.54 (m)(2) (i, through iv) 2 5 1998 by

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proposed License Transfer. Where all relevant documents and correspondence maybe accessed. This location must also have an index of all relevant documents and a short description of the information contained therein.

I appreciate the opportunity to submit comments on this very important topic. If you have any questions, please contact me at 508-428-3595.

Sincerely, David Leonardi, (op 10984) 1 Pinetree Circle Sandwich, MA 02563 (508) 428-3595

September 21, 1998 NOTE TO:

Emile Julian Chief, Docketing and Services Branch FROM:

Carol Gallagher

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SUBJECT:

DOCKETING OF COMMENT ON PROPOSED RULE - STREAMLINED HEARING PROCESS FOR NRC APPROVAL OF LICENSE TRANSFERS Attached for docketing is a comment letter related to the subject proposed rulemaking.

This comment was received via the rulemaking website on September 20, 1998. The submitter's name is David Leonardi, 1 Pinetree Circle, Sandwich, MA 02563. Please send a copy of the docketed comment to Joseph R. Gray (mail stop 015-8-18) for his records.

Attachment:

As stated cc w/o attachment:

J. Gray

DOCKET NUMBER

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Streamlined Hearing Process for NRC Approval of License Transfers Nuclear Regulatory Commission.

Proposed rule.

SUMMARY

The Nuclear Regulatory Commission is proposing an amendment to its regulations that would provide specific uniform procedures and rules of practice for handling requests for hearings associated with license transfer applications involving both material and reactor licensees. Conforming amendments are also made to certain other parts of the Commission's regulations. These new provisions would provide for public participation and opportunity for an informal hearing on matters relating to license transfers, specify procedures for filing and docketing applications for license transfers, and assign appropriate authorities for issuance of administrative amendments to reflect approved license transfers. This rulemaking would also add a categorical exclusion that would permit processing of transfer applications without preparation of Environmental Assessments.

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ts,,qq8 DATES: The comment period expires (30 days after publieation). Comments received after this date will be considered if it is practical to do so, but the Commission is able to assure consideration only for comments received on or before this date. Comments may be submitted either electronically or in written form.

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ADDRESSES: Written comments should be sent to: Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff.

You may also provide comments via the NRC's interactive rulemaking web site through the NRC home page (http://www.nrc.gov). From the home page, select "Rulemaking" from the tool bar. The interactive rulemaking web site can then be accessed by selecting "Rulemaking Forum." This site provides the ability to upload comments as files (any format), if your web browser supports that function. For information about the interactive rulemaking web site, contact Ms. Carol Gallagher, (301) 415-5905; e-mail CAG@nrc.gov.

Comments received on this rulemaking may be examined at the NRC Public Document Room, 2120 L Street NW (Lower Level), Washington, DC.

FOR FURTHER INFORMATION CONTACT: Joseph R. Gray, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone (301) 415-1740, E-mail JRG@NRC.GOV.

SUPPLEMENTARY INFORMATION:

Introduction and Purpose As part of broader efforts to improve the effectiveness of the agency's programs and processes, the Commission has begun an examination of its practices and procedures for considering proposed licensing and regulatory actions before it. The Commission recently issued a "Statement of Policy on Conduct of Adjudicatory Proceedings" directing its hearing boards and presiding officers to employ certain measures to ensure efficient conduct of proceedings within the framework of 10 CFR Part 2, Subpart G, the agency's formal adjudicatory hearing procedures. (See 63 FR 41872; August 5, 1998).

2

A number of categories of NRC licensees, but in particular the electric power industry, have undergone and will continue to undergo significant transformations as a result of changes to the economic and regulatory environment in which they operate. Electric utilities in particular are now operating in an environment which is increasingly characterized by restructuring and organizational change. In recent years, the Commission has seen a significant increase in the number of requests for transfers of NRC licenses. The number of requests related to reactor licenses has increased from a historical average of 2-3 per year to more than 20 requests in fiscal year 1997. With the restructuring that the energy industry is undergoing, we expect this high rate of requests for approval of license transfers to continue. Because of the need for expeditious decision making from all agencies, including the Commission, for these kinds of transactions, timely and effectively resolution of requests for transfers on the part of the Commission is essential.

In general, license transfers do not involve any changes to plant operations or significant changes in personnel of consequence to the continued reasonable assurance of public health and safety, but rather involve changes in ownership or partial ownership of facilities at a corporate level. Section 184 of the Atomic Energy Act of 1954, as amended (AEA), specifies, however, that:

[n]o license granted hereunder... shall be transferred, assigned, or in any manner disposed of, either voluntarily or involuntarily, directly or indirectly, through transfer of control of any license to any person, unless the Commission shall, after securing full information, find that the transfer is in accordance with the provisions of this Act, and shall give its consent in writing. (42 U.S.C. 2234; 10 CFR 30.34(b), 40.46, 50.80.)

3

Transfers falling within the foregoing provision include indirect transfers which might entail, for example, the establishment of a holding company over an existing licensee, as well as direct transfers, such as transfer of an ownership interest held by a non-operating, minority owner, and the complete transfer of the ownership and operating authority of a single or majority owner. Although other requirements of the Commission's licensing provisions may also be addressed to the extent relevant to the particular transfer action, typical staff review of such applications consists largely of assuring that the ultimately licensed entity has the capability to meet financial qualification and decommissioning funding aspects of NRC regulations. These financial capabilities are important over the long term, but have no direct or immediate impact on the requirements for day-to-day operations at a licensed facility. The same is generally true of applications involving the transfer of materials licenses.

Notwithstanding the nature of the issues relevant to a decision on whether to give consent to a license transfer, past Commission practice has generally used formal hearing procedures in accordance with the provisions of 10 CFR Part 2, Subpart G, for reactor license transfers or informal hearing procedures as provided by 10 CFR Part 2, Subpart L, in connection with materials licenses. As explained above, however, such transfers do not, as a general proposition, involve the type of technical issues with immediate impact on the actual operation of the facilities that could benefit from review by a multi-member, multi-disciplined Atomic Safety and Licensing Board historically used by the Commission in hearings on initial licensing or issuing amendments to licenses that substantially affect the technical operations of a licensed reactor facility. It is a matter suitable for reasonable discussion whether such complex hearing procedures provide the best means of reaching decisions on such technical issues, but, be they the best or not, they clearly are not required and are not the most efficient means for resolving the issues encountered in license transfers. Accordingly, the Commission has determined that 4

requests for hearings on applications for license transfers would be more effectively handled by a separate Subpart of 10 CFR Part 2 which establishes an efficient and appropriate process for handling hearing requests associated with transfer applications commensurate with the nature of the issues involved and the rights of all parties.

The basic requirement for an opportunity for a hearing on a license transfer is found in Section 189.a of the Atomic Energy Act of 1954, as amended (AEA), which provides that:

[i]n any proceeding under this Act, for the granting, suspending, revoking, or amending of any license or construction permit, or application to transfer control,... the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding. (42 U.S.C. 2239(a)(1 ).)

The Commission believes AEA sections 184 and 189 give the Commission the flexibility to fashion procedures which provide for a fair process to consider any issues raised concerning license transfers while still proceeding in an expedited manner. In 1983, a hearing on a materials license amendment was held not to be required by statute, i.e. (Sec. 189.a of the Atomic Energy Act, to be conducted "on the record". City of West Chicago v. U.S. Nuclear Regulatory Commission, 701 F.2d 632, 641-45 (""f" Cir. 1983). There, the court declined to read section 189.a as requiring "on-the-record" hearings, in the absence of clear Congressional "intent to trigger the formal on-the-record hearing provisions of the AP A" Id. at 641. The Commission has since stated that it interprets section 189.a as not requiring formal hearings in reactor licensing proceedings. En Banc Brief for Respondents dated August 30, 1991 (filed in the U.S. Court of Appeals for the District of Columbia Circuit, No. 89-1381, Nuclear Information and Resource Service v. NRG, at pp. 32-38).

5

During the past several years, the Commission has, on several occasions, undertaken to tailor procedures appropriate to reaching decisions on particular types of proposed actions.

These approaches have been upheld by the courts using the principles set forth in Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 842-844 (1984). In Nuclear Information Resource Service v. Nuclear Regulatory Commission, 969 F.2d 1169, 1173 (D.C.

Cir. 1992), upholding the Commission's new procedures for issuance of a combined license for standardized reactor designs, the Court noted that While this section [189.a] plainly requires a "hearing upon request' before the "granting" of a license, it provides no unambiguous instruction as to how the "hearing" is to be held; nor does it speak in any direct fashion to the question of whether the Commission must rehear issues already resolved at earlier stages in the licensing process. As we noted in Union of Concerned Scientists v. NRG, 920 F.2d 50, 53-54 (D.C. Cir. 1990) ( "UCS II"):

[t]he [Atomic Energy] Act itself nowhere describes the content of a hearing or prescribes the manner in which this "hearing" is to be run....

We are, of course, obliged to defer to the operating procedures employed by the agency [i.e., move to a Chevron step II analysis]

when the governing statute requires only that a "hearing" be held.

(emphasis in original).

In Kelley v. Selin, 42 F.3d 1501, 1511 (EJh Cir. 1995), the court followed a similar line of reasoning in concluding that the procedures adopted by the Commission to approve casks for spent nuclear fuel storage were acceptable. These decisions give the Commission confidence 6

that an interpretation of section 189.a to permit the kind of procedures we propose here will find judicial support. 1 To promote uniformity, the proposed hearing procedures for license transfers will apply to both materials and reactor licenses. The procedures are designed to provide for public participation in the event of requests for a hearing under these provisions, while at the same time providing an efficient process that recognizes the time-sensitivity normally present in transfer cases.

The proposed procedures would cover any direct or indirect transfer for which NRG approval is required pursuant to the regulatory provisions under which the license was issued.

NRG regulations and the Atomic Energy Act require approval of any transfer of control of a license. See AEA, Sec. 184. 42 U.S.C. 2234. This would include those transfers that require license amendments and those that do not. It should be recognized that not all license transfers will require license amendments. For example, the total acquisition of a licensee, without a change in the name of the licensee, (e.g., through the creation of a holding company which acquires the existing licensee but which, beyond ownership of the licensee, does not otherwise affect activities for which a license is required), would require NRG approval, but would not necessarily require any changes in the NRG license for the facilities owned by the licensee.

1Further, the Commission has specifically found that the statute does not mandate pre-effectiveness hearings for transfers of NRG licenses, an action which the Commission has noted is not a licensing action under Section 189.a(1) of the AEA. Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1), CLl-92-4, 35 NRG 69, 77 (1992). In this decision, the Commission determined that the consent called for by Section 184 of the AEA was to be granted by order, not by license amendment, though it was recognized that conforming license amendments, of an administrative nature, might also be required to reflect a change in the name of the licensee. 35 NRG at 76-77 and n.6.

7

These procedures do not expand or change the circumstances under which NRG approval of a transfer is necessary nor do they change the circumstances under which a license amendment would be required to reflect an approved transfer. Amendments to licenses are required only to the extent that ownership or operating authority of a licensee, as reflected in the license itself, is changed by a transfer. A discussion of the process for issuing amendments associated with an approved transfer, when necessary, is provided below.

The proposed procedures, similar to those used by the Commission in cases involving export and import licensing hearings under 10 CFR Part 110, provide for a legislative type hearing for license transfers. These procedures will provide opportunities for meaningful public participation while minimizing areas where a formal adjudicatory process could introduce delays without any commensurate benefit to the substance of the Commission's decisionmaking.

The Commission will either elect to develop an evidentiary record and render a final decision itself, or will appoint a Presiding Officer who will be responsible for collecting evidence and developing a record for submission to the Commission. For such proceedings, the Commission may appoint a Presiding Officer from the Atomic Safety and Licensing Board Panel (ASLBP), although the proposed regulations do not restrict the sources from which the Commission may select.

It should be noted that the regulations do not require the NRG staff to participate in the proceedings as a formal party unless the Commission directs the use of Subpart G procedures or otherwise directs the staff to participate as a party. The Commission expects, nevertheless, that, in most cases, the staff will participate to the extent that it will offer into evidence staff's Safety Evaluation Report that supports its conclusions on whether to initially grant or deny the requested license transfer and provide one or more appropriate sponsoring witnesses. Greater 8

staff involvement may be directed by the Commission on its own initiative or at the staff's choosing, as circumstances warrant.

One aspect of the proposed rule designed to improve efficiency is the decision to require oral hearings on all transfers where a hearing is to be held under Subpart M, with very limited exceptions. It has been the Commission's experience under Subpart L proceedings that intervenors are particularly interested in having the opportunity to make oral presentations or arguments for inclusion in the record. Even though such requests are rarely granted,2 intervenors can and do introduce the issue of whether to have oral presentations in individual proceedings. Rather than allow the issue of oral presentations to become a point of contention in individual proceedings (which could introduce unnecessary delays in completing the record) the proposed rule would resolve this concern by ensuring that all parties have the opportunity to present oral arguments and evidence. The question of whether cross examination of witnesses should be allowed has also introduced an area for argument in Subpart L proceedings.3 The Commission has addressed this area of potential dispute in the proposed rules by providing for questioning of witnesses only by the Presiding Officer. Although only the Presiding Officer may question witnesses, the proposed rules specifically provide parties the opportunity to present recommended questions to the Presiding Officer.

Another aspect of the rule intended to improve the efficiency of the adjudicatory process is that, while it does not provide for any separate discovery, it does require that a Hearing Docket containing all relevant documents and correspondence be established and be made available at the Commission's Public Document Room. This approach is in keeping with 2Curators of the University of Missouri, CLl-95-1, 41 NRC 71, 120 (1995) 3/d.

9

establishment of a case file as described in the Commission's recent Statement of Policy on Conduct of Adjudicatory Proceedings (63 FR 41872; August 5, 1998).

Finally, to improve the efficiency of the adjudicatory process, the proposed rules would impose schedular milestones for the filing of testimony and responses and for the commencement of oral hearings. Subject to the Presiding Officer's scheduling adjustments in particular proceedings, the proposed procedures would require initial testimony, statements of position on the issues and responsive testimony to be filed within 50 days of the Commission's decision to grant a request for a hearing, and the hearing would commence in just over two months from the Commission's decision to hold a hearing. Assuming that the NRC staff is able to complete its technical review and take initial action on the transfer application within three to four months of its notice of receipt of the application, these procedures are expected to result in the issuance of a final Commission decision on the license transfer within about six to eight months of the notice of receipt of the application in routine cases. Complex cases requiring more extensive review or the use of different hearing procedures may take more time.

Administrative License Amendments Associated with License Transfers As discussed above, not all license transfers require license amendments. Only when the license specifically has reference to entities or persons that no longer are accurate following the approved transfer will a situation exist that requires amendments to the license. Such amendments are essentially administrative in nature. That is, in determining whether to approve such amendments, the only issue is whether the license amendment accurately reflects the approved transfer. Substantive issues regarding requests for a hearing on the appropriateness of the transfer itself may only be considered using the procedures in this proposed rule. The Commission has previously noted that issuance of such an administrative amendment, following the review and approval of the transfer itself, "presents no safety questions and clearly involves 10

_J

no significant hazards considerations." Long Island Lighting Company, supra, 35 NRC at 77, n.6.

Safety Evaluation Reports (SERs) prepared in connection with previous license transfers confirm that such transfers do not, as a general matter, have significant impacts on the public health and safety. Accordingly, the proposed regulations provide that conforming amendments to the license may be issued by the staff at any time after the staff has reviewed and approved the proposed transfer, notwithstanding the pendency of any hearing under the proposed Subpart M. As is done currently, staff approval of a transfer application will take the form of an order.

Such order will also identify any license amendment issued.

The Commission, through this rulemaking, is making a generic finding that, for purposes of 10 CFR 50.58(b)(5), 50.91 and 50.92, administrative amendments which do no more than reflect an approved transfer and do not directly affect actual operating methods and actual operation of the facility do not involve a "significant hazards consideration" and do not require that a hearing opportunity be provided prior to issuance. It must be emphasized that any post-effectiveness hearing on such administrative amendments will be limited to the question of whether the amendment accurately reflects the approved transfer. The Commission does note, however, that it retains the authority, as a matter of discretion, to direct completion of hearings prior to issuance of the transfer approval and any required amendments in individual cases and to direct the use of other hearing procedures, if the Commission believes it is in the interest of public health and safety to do so.

Environmental Issues The staff has completed numerous Environmental Assessments related to license transfers. These assessments have uniformly demonstrated that there are no significant environmental effects from license transfers. Indeed, as the Commission has noted previously, 11

amendments effectuating an approved transfer present no safety questions and involve no significant hazards considerations.4 Accordingly. the Commission has determined that a new categorical exclusion should be added to 10 CFR Part 51 which will obviate the need for the staff to continue to conduct individual Environmental Assessments in each transfer case.

Limitation to License Transfers The Commission wishes to emphasize that the proposed rules address only license transfers and associated administrative amendments to reflect transfers. Requests for license amendments which involve changes in actual operations or requirements directly involving health and safety-related activities will continue to be subject to the amendment processes currently in use, including the requirement for individualized findings under 1 0 CFR 50.58, 50.91 and 50.92 that address the necessity for pre-effectiveness hearings.

Finding of No Significant Environmental Impact and Categorical Exclusion The Commission has determined under the National Environmental Policy Act (NEPA) of 1969, as amended, and the Commission's regulations in Subpart A of 10 CFR Part 51, that this rule, if adopted, falls within the categorical exclusion appearing at 10 CFR 51.22 (c)(1) for which neither an Environmental Assessment nor an Environmental Impact Statement is required.

Further, under its procedures for implementing NEPA, the Commission may exclude from preparation of an environmental impact statement, or an environmental assessment, a category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in NRC proceedings. In this rulemaking, the Commission proposes to find that the approval of a direct or indirect license transfer, as well as any required administrative license amendments to reflect the approved 4Long Island Lighting Company, supra, 35 NRC at 77, n. 6.

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transfer, comprise a category of actions which do not individually or cumulatively have a significant effect on the human environment. Actions in this category are similar in that, under the AEA and Commission regulations, transfers of licenses (and associated administrative amendments to licenses) will not in and of themselves permit the licensee to operate the facility in any manner different from that which has previously been permitted under the existing license. Thus, the transfer will usually not raise issues of environmental impact that differ from those considered in initial licensing of a facility. In addition, the denial of a transfer would also have, in and of itself, no impact on the environment, since the licensee would still be authorized to operate the facility in accordance with the existing license.

Environmental assessments that have been conducted regarding numerous license transfers under existing regulations have not demonstrated the existence of a major federal action significantly affecting the environment. Further, the proposed regulations do not apply to any request for an amendment that would directly affect the actual operation of a facility.

Amendments that directly affect the actual operation of a facility would be subject to consideration pursuant to the existing license amendment processes, including the requirements in 1 O CFR Part 2, Subparts G or L, as appropriate and applicable environmental review requirements of 10 CFR Part 51.

Paperwork Reduction Act Statement The proposed rule does not contain a new or amended information collection requirement subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et. seq.).

Existing requirements for 10 CFR Part 51 were approved by the Office of Management and Budget, approval number 3150-0021.

Public Protection Notification 13

If an information collection does not display a currently valid 0MB control number, the NRC may not conduct or sponsor, and a person is not required to respond to, the information collection.

Regulatory Analysis To determine whether the amendments to 10 C.F.R Part 2 contained in this proposed rule were appropriate, the Commission considered the following options:

1. The No-Action Alternative.

This alternative was not deemed acceptable for the following reasons. First, this option would leave reactor transfers subject to hearings using multi-member, multi-disciplined licensing boards, even though such transfers do not involve the type of complex technical questions for which multi-member boards of diverse background may provide a useful technical pool of experience.

Second, the formal adjudicatory hearing process would needlessly add formality and resource burdens to the development of a record for reaching a decision on applications for transfer approval without any commensurate benefit to the public health and safety or the common defense and security.

Third, the current process for materials licensees under 10 CFR Part 2, Subpart L, while not utilizing the multi-member licensing boards, does not necessarily result in uniform treatment of all license transfer requests, and provides at least the potential for more formal hearings.

Even if the requests for more formal procedures are not granted in typical materials cases, the process of receiving motions for more formal procedures, allowing responses from all parties to those requests, and the need for the Presiding Officer to consider and rule on such requests introduces issues and litigation on matters not involving the merits of the particular application 14

and thus introduces the potential for delays in materials license transfer proceedings, without clear benefit to the public health and safety or the common defense and security.

2. Use 1 O CFR Part 2, Subpart G for all license transfers While assuring uniformity for all license transfer requests, this option would not result in an expeditious process that would avoid the use of multi-member licensing boards which is unnecessary given the nature of typical transfer applications. It would also result in added formality and resources being devoted to materials license transfers on the part of all parties to the hearing, without any resulting benefit to public health and safety.

3. Use of 10 CFR Part 2, Subpart L for al/ license transfers This option was considered as viable to achieve uniformity and to avoid the need for multi-member licensing boards for conducting requested hearings. Subpart L provides for paper hearings unless oral presentations are ordered by the Presiding Officer. Further, Subpart L allows the Presiding Officer the option of recommending to the Commission that more formal procedures be used. Even though such requests are rarely granted, as a practical matter, there are delays in the proceeding while parties petition the Presiding Officer and/or the Commission to have oral hearings and to use additional procedures, such as cross-examination and formal discovery. Such discretion in structuring individual hearings is appropriate where the breadth of potential actions and licensees ( covering essentially all amendments for a wide variety of materials licensees) is governed by a single hearing process. This flexibility, however, inevitably leads to delays as each party to the hearings proposes and presents arguments to the Presiding Officer concerning how the hearing should be structured.

Where, as in the proposed rule, the Commission is concerned with only one type of approval, the Commission has the ability to resolve through rulemaking many of these procedural points concerning the conduct of the hearing. The resolution of these issues will 15

allow the parties in license transfer proceedings to move expeditiously to examination of the substantive issues in the proceeding. The proposed process, similar to a legislative-type hearing, will also result in the record promptly reaching the Commission where a final agency determination can be made. The proposed rule dictates that oral hearings be held on each application for which a hearing request is granted unless the parties unanimously agree to forgo the oral hearing. This will remove the potential for a delay while parties petition the Presiding Officer for an oral hearing. Further, the proposed rule provides that the Presiding Officer will conduct all questioning of witnesses and there are no provisions for formal discovery, although docket files with relevant materials will be publicly available. The proposed rule resolves several

• areas of frequent dispute in Subpart L proceedings and was seen, therefore, as being more appropriate for license transfer proceedings where a timely decision is important to the public interest. These efficiencies can be achieved without any negative effect on substantive decisionmaking or the rights of all parties to a full and fair hearing since all parties will be allowed to present relevant witnesses, written testimony, and oral arguments, which should result in a high quality record on substantive issues for use by the Commission in reaching a decision on contested issues.

Regulatory Flexibility Certification In accordance with the Regulatory Flexibility Act of 1980, 5 U.S.C. 605(b), the Commission hereby certifies that this rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. This proposed rule does not change any requirements for submittal of license transfer requests to NRC, rather, the procedures designate how NRC will handle requests for hearings on applications for license transfers. Most requested hearings on license transfer applications involve reactor licensees which are large organizations which do not fall within the definition of a small business found in section 3 of the Small Business 16

Action, 15 U.S.C. 632, or within the small Business Standards set forth in 13 CFR Part 121 or in the size standards adopted by the NRC (10 CFR 2.810). Based on the historically low number of requests for hearings involving materials licensees, it is not expected that this rule will have any significant economic impact on a substantial number of small businesses.

Backfit Analysis The NRC has determined that the backfit rule, 10 CFR 50.109, does not apply to this proposed rule and a backfit analysis is not required, because these amendments do not involve any provisions that would impose backfits as defined in 10 CFR 50.109. The rule does not constitute a backfit under 1 O CFR 50.109, because it does not propose a change to or additions to requirements for existing structures, systems, components, procedures, organizations or designs associated with the construction or operation of a facility.

List of Subjects 10 CFR Part 2 Administrative practice and procedure, Antitrust, Byproduct material, Classified information, Environmental protection, Nuclear materials, Nuclear power plants and reactors, Penalties, Sex discrimination, Source material, Special nuclear material, Waste treatment and disposal.

10 CFR Part 51 Administrative practice and procedure, Environmental impact statement, Nuclear materials, Nuclear power plants and reactors, Reporting and record keeping requirements.

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For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 553, the NRC is proposing to adopt the following amendments to 10 CFR Parts 2 and 51.

PART 2 - RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS

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

Authority: Secs. 161, 181, 68 Stat. 948,953, as amended (42 U.S.C. 2201, 2231);

sec. 191, as amended, Pub. L.87-615, 76 Stat. 409 (42 U.S.C. 2241); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841 ); 5 U.S.C. 552.

Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104, 105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, as amended (42 U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 2135); sec. 114(f); Pub. L.97-425, 96 Stat. 2213, as amended (42 U.S.C. 10134(f)); sec. 102, Pub. L.91-190, 83 Stat. 853, as amended (42 U.S.C. 4332); sec. 301, 88 Stat. 1248 (42 U.S.C.

5871). Sections 2.102, 2.103, 2.104, 2.105, 2.721 also issued under secs. 102, 103, 104, 105, 183i 189, 68 Stat. 936, 937, 938, 954, 955, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2233, 2239). Section 2.105 also issued under Pub. L.97-415, 96 Stat. 2073 (42 U.S.C. 2239).

Sections 2.200-2.206 also issued under secs. 161 b, i, o, 182, 186, 234, 68 Stat. 948-951, 955, 83 Stat. 444, as amended (42 U.S.C. 2201 (b), (i), (o), 2236, 2282); sec. 206, 88 Stat 1246 (42 U.S.C. 5846). Sections 2.2050) also issued under Pub. L. 101-410, 104 Stat. 890, as amended by section 31001 (s), Pub. L. 104-134, 110 Stat. 1321-373 (28 U.S.C. 2461 note).

Sections 2.600-2,606 also issued under sec. 102, Pub. L.91-190, 83 Stat. 853, as amended (42 U.S.C. 4332). Sections 2.700a, 2.719 also issued under 5 U.S.C. 554. Sections 2.754, 2.760, 2.770, 2.780 also issued under 5 U.S.C. 557. Section 2.764 also issued under secs. 135, 141, Pub. L.97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). Section 2.790 also issued under sec. 103, 68 Stat. 936, as amended (42 U.S.C. 2133) and 5 U.S.C. 552. Sections 2.800 and 2.808 also issued under 5 U.S. C. 553, Section 2.809 also issued under 5 U.S.C. 553 and sec.29, Pub. L.85-256, 71 Stat. 579, as amended (42 U.S.C. 2039). Subpart K also issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239); sec. 134, Pub. L.97-425, 96 Stat. 2230 (42 U.S.C. 10154). Subpart L also issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239). Subpart M also issued under sec. sec. 184 (42 U.S.C. 2234) and sec. 189, 68 Stat. 955 (42 U.S.C. 2239).

Appendix A also issued under sec. 6, Pub. L.91-560, 84 Stat. 1473 (42 U.S.C. 2135).

2. In §2.101 paragraph (a)(1) is revised to read as follows:

§2.101 Filing of application.

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(a)(1) An application for a license, a license transfer, or an amendment to a license shall be filed with the Director of the Office of Nuclear Reactor Regulation or Director of the Office of Nuclear Material Safety and Safeguards, as prescribed by the applicable provisions of this chapter. A prospective applicant may confer informally with the staff prior to the filing of an application.

3. In §2.1201 paragraph (a)(1) is revised to read as follows:

§2.1201 Scope of subpart.

(a) *

(1) The grant, renewal or licensee-initiated amendment of a materials license subject to parts 30, 32 through 35, 39, 40, or 70 of this chapter, with the exception of license amendments related to an application to transfer a license; or

4. In §2.1205, paragraphs (a) and (b) are revised to read as follows:

§2.1205 Request for a hearing: petition for leave to intervene.

(a) Any person whose interest may be affected by a proceeding for the grant, renewal, or licensee-initiated amendment of a license subject to this Subpart may file a request for a hearing.

(b) An applicant for a license, a license amendment, or a license renewal who is issued a notice of proposed denial or a notice of denial and who desires a hearing shall file the request for the hearing within the time specified in § 2.103 in all cases. An applicant may include in the request for hearing a request that the presiding officer recommend to the Commission that procedures other than those authorized under this subpart be used in the 19

proceeding, provided that the applicant identifies the special factual circumstances or issues which support the use of other procedures.

5. In Part 2, a new Subpart M is added to read as follows:

Subpart M - Public Notification, Availability of Documents and Records, Hearing Requests and Procedures for Hearings on License Transfer Applications

§2.1300 Scope of subpart M.

§2.1301 Public notice of receipt of a license transfer application.

§2.1302 Notice of withdrawal of an application.

§2.1303 Availability of documents in the Public Document Room.

§2.1304 Hearing procedures.

§2.1305 Written comments.

§2.1306 Hearing request or intervention petition.

§2.1307 Answers and replies.

§2.1308 Commission action on a hearing request or intervention petition.

§2.1309 Notice of oral hearing.

§2.1310 Notice of hearing consisting of written comments.

§2.1311 Conditions in a notice or order.

§2.1312 Authority of the Secretary.

§2.1313 Filing and service.

§2.1314 Computation of time.

§2.1315 Generic determination regarding license amendments to reflect transfer.

§2.1316 Authority and role of NRC staff.

§2.1317 Hearing docket.

§2.1318 Acceptance of hearing documents.

§2.1319 Presiding officer.

§2.1320 Responsibility and power of the presiding officer in an oral hearing.

§2.1321 Participation and schedule for submissions in a hearing consisting of written comments.

§2.1322 Participation and schedule for submissions in an oral hearing.

§2.1323 Presentation of testimony in an oral hearing.

§2.1324 Appearance in an oral hearing.

. §2.1325 Motions and requests.

§2.1326 Burden of proof.

§2.1327 Application for a stay of the effectiveness of NRC staff action on license transfer.

§2.1328 Default.

§2.1329 Waiver of a rule or regulation.

§2.1330 Reporter and transcript for an oral hearing.

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§2.1331 Commission action.

Subpart M - Public Notification, Availability of Documents and Records, Hearing Requests and Procedures for Hearings on Licensed Transfer Applications.

§2.1300 Scope of Subpart M.

This Subpart governs requests for, and procedures for conducting, hearings on any application for the direct or indirect transfer of control of an NRC license which transfer requires prior approval ofthe NRC under the Commission's regulations, governing statutes, or pursuant to a license condition. This Subpart is to provide the only mechanism for requesting hearings on license transfer requests, unless contrary case specific orders are issued by the Commission.

§2.1301 Public notice of receipt of a license transfer application.

(a) The Commission will notice the receipt of each application for direct or indirect transfer of a specific NRC license by placing a copy of the application in the NRC Public Document Room.

(b) The Commission will also publish in the Federal Register a notice of receipt of an application for approval of a license transfer involving 10 CFR Part 50 and Part 52 licenses and major fuel cycle facility licenses issued under 10 CFR Part 70. This notice constitutes the notice required by §2.105 with respect to all matters related to the application requiring NRC approval.

(c) Periodic lists of applications received may be obtained upon request addressed to the Public Docum~nt Room, U.S. Nuclear Regulatory Commission, Washington, DC 20555.

§2.1302 Notice of withdrawal of an application.

The Commission will notice the withdrawal of an application by publishing the notice of withdrawal in the same manner as the notice of receipt of the application was published under

§2.1301.

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§2.1303 Availability of documents in the Public Document Room.

Unless exempt from disclosure under Part 9 of this chapter, the following documents pertaining to each application for a license transfer requiring Commission approval will be placed in the Public Document Room when available:

(a) The license transfer application and any associated requests; (b) Commission correspondence with the applicant or licensee related to the application; (c) Federal Register notices; (d) The NRC staff Safety Evaluation Report (SER).

(e) Any NRC staff order which acts on the license transfer application; and (f) If a hearing is held, the hearing record and decision;

§2.1304 Hearing procedures.

The procedures in this Subpart will constitute the exclusive basis for hearings on license transfer applications for all NRC specific licenses.

§2.1305 Written comments.

(a) As an alternative to requests for hearings and petitions to intervene, persons may submit written comments regarding license transfer applications. The Commission will consider and, if appropriate, respond to these comments, but these comments do not otherwise constitute part of the decisional record.

(b) These comments should be submitted within 30 days after public notice of receipt of the application and addressed to the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemakings and Adjudications Staff.

(c) The Commission will provide the applicant with a copy of the comments. Any response the applicant chooses to make to the comments must be submitted within 10 days of 22

service of the comments on the applicant. Such responses do not constitute part of the decisional record.

§2.1306 Hearing request or intervention petition.

(a) Any person whose interest may be affected by the Commission's action on the application may request a hearing or petition for leave to intervene on a license application for approval of a direct or indirect transfer of a specific license.

(b) Hearing requests and intervention petitions must--

(1) State the name, address, and telephone number of the requester or petitioner; (2) Set forth the issues sought to be raised and (i) Demonstrate that such issues are within the scope of the proceeding on the license transfer application, (ii) Demonstrate that such issues are relevant to the findings the NRC must make to grant the application for license transfer, (iii) Provide a concise statement of the alleged facts or expert opinions which support the petitioner's position on the issues and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the petitioner intends to rely to support its position on the issues, and (iv) Provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact.

(3) Specify both the facts pertaining to the petitioner's interest and how the interest may be affected, with particular reference to the factors in §2.1308(a).

(4) Be served on both the applicant and the NRC Office of the Secretary by any of the methods for service specified in §2.1313.

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(c) Hearing requests and intervention petitions will be considered timely only if filed not later than:

(1) 20 days after notice of receipt is published in the Federal Register, for those applications published in the Federal Register; (2) 45 days after notice of receipt is placed in the Public Document Room for all other applications; or (3)

Such other time as may be provided by the Commission.

§2.1307 Answers and replies.

(a) Unless otherwise specified by the Commission, an answer to a hearing request or intervention petition may be filed within 10 days after the request or petition has been served.

(b) Unless otherwise specified by the Commission, a reply to an answer may be filed within 5 days after service of that answer.

(c) Answers and replies should address the factors in §2.1308.

§2.1308 Commission action on a hearing request or intervention petition.

(a) In considering a hearing request or intervention petition on an application for a transfer of an NRC license, the Commission will consider:

(1) The nature of the Petitioner's alleged interest;

{2) Whether that interest will be affected by an approval or denial of the application for transfer; (3) The possible effect of an order granting the request for license transfer on that interest, including whether the relief requested is within the Commission's authority, and, if so, whether granting the relief requested would redress the alleged injury; and

{4) Whether the issues sought to be litigated are (i)

Within the scope of the proceeding; 24

(ii) Relevant to the findings the Commission must make to act on the application for license transfer; (iii) Appropriate for litigation in the proceeding, and (iv) Adequately supported by the statements, allegations, and documentation required by §2.1306(b)(2)(iii) and (iv).

(b) Untimely hearing requests or intervention petitions may be denied unless good cause for failure to file on time is established. In reviewing untimely requests or petitions, the Commission will also consider:

(1)

The availability of other means by which the requester's or petitioners' interest will be protected or represented by other participants in a hearing; and

{2)

The extent to which the issues will be broadened or final action on the application delayed.

(c)

The Commission will deny a request or petition to the extent it pertains solely to matters outside its jurisdiction.

{d){1) After consideration of the factors covered by paragraphs (a) through (c) of this section, the Commission will issue a notice or order granting or denying a hearing request or intervention petition, designating the issues for any hearing that will be held and designating the Presiding Officer. A notice granting a hearing will be published in the Federal Register and served on the parties to the hearing.

(2}

Hearings under this Subpart will be oral hearings, unless, within 15 days of the service of the notice or order granting a hearing, the parties unanimously agree and file a joint motion requesting a hearing consisting of written comments. No motion to hold a hearing consisting of written comments will be entertained absent unanimous consent of all parties.

25

(3)

A denial of a request for hearing and a denial of any petition to intervene will set forth the reasons for the denial.

§2.1309 Notice of oral hearing (a) A notice of oral hearing will - -

(1)

State the time, place and issues to be considered; (2)

Provide names and addresses of participants, (3)

Specify the time limit for participants and others to indicate whether they wish to present views; (4)

Specify the schedule for the filing of written testimony, statements of position, proposed questions for the Presiding Officer to consider, and rebuttal testimony consistent with the schedule provisions of §2.1321; (5)

Specify that the oral hearing shall commence within 15 days of the date for submittal of rebuttal testimony unless otherwise ordered; (6)

State any other instructions the Commission deems appropriate; (7)

If so determined by the NRC staff or otherwise directed by the Commission, direct that the staff participate as a party with respect to some or all issues.

(b}

If the Commission is not the Presiding Officer, the notice of oral hearing will also state:

(1)

When the jurisdiction of the Presiding Officer commences and terminates; (2)

The powers of the Presiding Officer; (3)

Instructions to the Presiding Officer to certify promptly the completed hearing record to the Commission without a recommended or preliminary decision.

§2.1310 Notice of hearing consisting of written comments.

A notice of hearing consisting of written comments will:

26

(a)

State the issues to be considered; (b)

Provide the names and addresses of participants; (c)

Specify the schedule for the filing of written testimony, statements of position, proposed questions for the Presiding Officer to consider for submission to the other parties, and rebuttal testimony, consistent with the schedule provisions of §2.1321.

(d)

State any other instructions the Commission deems appropriate.

§2. 1311 Conditions in a notice or order.

(a)

A notice or order granting a hearing or permitting intervention shall - -

(1)

Restrict irrelevant or duplicative testimony; and (2)

Require common interests to be represented by a single participant.

(b)

If a participant's interests do not extend to all the issues in the hearing, the notice or order may limit her/his participation accordingly.

§2.1312 Authority of the Secretary.

The Secretary or the Assistant Secretary may rule on procedural matters relating to proceedings conducted by the Commission itself under this Subpart to the same extent they can do so under §2.772 for proceedings under Subpart G.

§2.1313 Filing and service.

(a) Hearing requests, intervention petitions, answers, replies and accompanying documents must be served as described in paragraph (b) of this section by delivery, facsimile transmission, e-mail or other means that will ensure receipt by close of business on the due date for filing.

Any participant filing hearing requests, intervention petitions, replies and accompanying documents should include information on mail and delivery addresses, e-mail addresses, and facsimile numbers in their initial filings which may be used by the Commission, Presiding Officer and other parties for serving documents on the participant.

27

(b) All filings must be served upon the applicant; the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555; the Secretary of the Commission, U.S.

Nuclear Regulatory Commission, Washington, DC 20555, and participants if any. If service to the Secretary is by delivery or by mail, the filings should be addressed to the Secretary, U.S.

Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemakings and Adjudications Staff. E-mail filings may be sent to the Secretary at the following e-mail address:

SECY@NRC.GOV. Facsimile transmission filings may be filed with the Secretary using the following number: 301-415-1101.

(c) Service is completed by:

(1)

Delivering the paper to the person; or leaving it in her or his office with someone in charge; or, if there is no one in charge, leaving it in a conspicuous place in the office; or, if the recipient has no office or it is closed, leaving it at her or his usual place of residence with some occupant of suitable age and discretion; (2)

Depositing it in the United States mail, properly stamped and addressed; or (3)

Any other manner authorized by law, when service cannot be made as provided in paragraphs (e)(1) or (2) of this section.

(4)

For facsimile transmission, sending copies to the facsimile machine of the person being served; (5)

For e-mail, sending the filing in electronic form attached to an e-mail message directed to the person being served.

(d) Proof of service, stating the name and address of the person served and the manner and date of service, shall be shown, and may be made by-(1)

Written.acknowledgment of the person served or an authorized representative; or (2)

The certificate or affidavit of the person making the service.

28

(e) The Commission may make special provisions for service when circumstances warrant.

§2.1314 Computation of time.

(a) In computing time, the first day of a designated time period is not included and the last day is included. If the last day is a Saturday, Sunday or legal holiday at the place where the required action is to be accomplished, the time period will end on the next day which is not a Saturday, Sunday or legal holiday.

(b) In time periods of 7 days or less, Saturdays, Sundays and holidays are not counted.

(c) Whenever an action is required within a prescribed period by a paper served pursuant to

§2.1307, 3 days shall be added to the prescribed period if service is by regular mail.

§2.1315 Generic determination regarding license amendments to reflect transfers.

(a) Unless otherwise determined by the Commission with regard to a specific application, the Commission has determined that any utilization facility license amendment conforming the license to reflect the transfer action is administrative in nature and involves no significant hazards considerations.

(b) Where administrative license amendments are necessary to reflect an approved transfer, such amendments will be included in the order that approves the transfer. Any challenge to the administrative license amendment is limited to the question of whether the license amendment accurately reflects the approved transfer.

§2.1316 Authority and role of NRC staff.

(a) During the pendency of any hearing under this Subpart, consistent with the NRC staffs findings in its Safety Evaluation Report (SER), the staff is expected to promptly issue approval or denial of license transfer requests. Notice of such action shall be promptly transmitted to the Presiding Officer and parties to the proceeding.

29

(b) Except as otherwise directed in accordance with §2.1309(a)(7), the staff is not required to be a party to proceedings under this Subpart but will offer into evidence its SER associated with the transfer application and provide one or more sponsoring witnesses.

(c) If the staff desires to participate as a party, the staff shall notify the Presiding Officer and the parties and shall thereupon be deemed to be a party with all the rights and responsibilities of a party.

§2.1317 Hearing docket.

For each hearing, the Secretary will, maintain a docket which will include the hearing transcript, exhibits and all papers filed or issued in connection with the hearing. This file will be made available to all parties in accordance with the provisions of §2.1303 and will constitute the only discovery in proceedings under this Subpart.

§2.1318 Acceptance of hearing documents.

(a) Each document filed or issued must be clearly legible and bear the docket number, license application number, and hearing title.

(b) Each document shall be filed in one original and signed by the participant or its authorized representative, with the address and date of signature indicated. The signature is a representation that the document is submitted with full authority, the person signing knows its contents and that, to the best of their knowledge, the statements made in it are true.

(c) A document not meeting the requirements of this section may be returned with an explanation for nonacceptance and, if so, will not be docketed.

§2.1319 Presiding officer.

(a) The Commission will ordinarily be the Presiding Officer at a hearing under this part.

However, the Commission may provide in a hearing notice that one or more Commissioners, or any other person permitted by law, will preside.

30

(b) A participant may submit a written motion for the disqualification of any person presiding.

The motion shall be supported by an affidavit setting forth the alleged grounds for disqualification. If the Presiding Officer does not grant the motion or the person does not disqualify himself and the Presiding Officer or such other person is not the Commission or a Commissioner, the Commission will decide the matter.

(c) If any person presiding deems himself or herself disqualified, he or she shall withdraw by notice on the record after notifying the Commission.

(d) If a Presiding Officer becomes unavailable, the Commission will designate a replacement.

(e) Any motion concerning the designation of a replacement Presiding Officer shall be made within 5 days after the designation.

(f) Unless otherwise ordered by the Commission, the jurisdiction of a Presiding Officer other than the Commission commences as designated in the hearing notice and terminates upon certification of the hearing record to the Commission, or when the Presiding Officer is disqualified.

§ 2.1320 Responsibility and power of the presiding officer in an oral hearing (a) The Presiding Officer in any oral hearing shall conduct a fair hearing, develop a record that will contribute to informed decisionmaking, and, within the framework of the Commission's orders, have the power necessary to achieve these ends, including the power to:

(1)

Take action to avoid unnecessary delay and maintain order; (2)

Dispose of procedural requests; (3)

Question participants and witnesses, and entertain suggestions as to questions which may be asked of participants and witnesses.

(4)

Order consolidation of participants; 31

(5)

Establish the order of presentation; (6)

Hold conferences before or during the hearing; (7)

Establish time limits; (8)

Limit the number of witnesses; and (9)

Strike or reject duplicative or irrelevant presentations.

(b) Where the Commission itself does not preside:

(1)

The Presiding Officer may certify questions or refer rulings to the Commission for decision; (2)

Any hearing order may be modified by the Commission; and (3)

The Presiding Officer will certify the completed hearing record to the Commission, which may then issue its decision on the hearing or provide that additional testimony be presented.

§2.1321 Participation and schedule for submission in a hearing consisting of written comments.

Unless otherwise limited by this Subpart or by the Commission, participants in a hearing consisting of written comments may submit:

(a) Initial written statements of position and written testimony with supporting affidavits on the issues. These materials shall be filed within 30 days of the date of the Commission's Notice granting a hearing pursuant to §2.1308( d)( 1), unless the Commission or Presiding Officer directs otherwise.

(b) Written responses, rebuttal testimony with supporting affidavits directed to the initial statements and testimony of other participants, and proposed written questions for the Presiding Officer to consider for submittal to persons sponsoring testimony submitted under paragraph (a) of this section. These materials shall be filed within 20 days of the 32

filing of the materials submitted under paragraph (a) of this section, unless the Commission or Presiding Officer directs otherwise.

(c) Written concluding statements of position on the issues. These materials shall be filed within 20 days of the filing of the materials submitted under paragraph (b) of this section, unless the Commission or the Presiding Officer Directs otherwise.

§2.1322 Participation schedule for submissions in an oral hearing.

(a) Unless otherwise limited by this Subpart or by the Commission, participants in an oral hearing may submit and sponsor in the hearing:

(1) Initial written statements of position and written testimony with supporting affidavits on the issues. These materials shall be filed within 30 days of the date of the Commission's notice granting a hearing pursuant to §2.1308(d)(1), unless the Commission or Presiding Officer directs otherwise.

(2) (i) Written responses and rebuttal testimony with supporting affidavits directed to the initial statements and testimony of other participants; (ii) Proposed questions for the Presiding Officer to consider for propounding to persons sponsoring testimony.

(3) These materials must be filed within 20 days of the filing of the materials submitted under paragraph (a)(1) of this section, unless the Commission or Presiding Officer directs otherwise.

(b) The oral hearing should commence within 65 days of the date of the Commission's notice granting a hearing unless the Commission or Presiding Officer directs otherwise. Ordinarily, questioning in the oral hearing will be conducted by the Presiding Officer, using either the Presiding Officer's questions or questions submitted by the participants or a combination of both.

33

(c) Written post-hearing statements of position on the issues addressed in the oral hearing may be submitted within 20 days of the close of the oral hearing.

(d) The Commission, on its own motion, or in response to a request from a Presiding Officer other than the Commission, may use additional procedures, such as direct and cross-examination, or may convene a formal hearing under Subpart G of 10 CFR Part 2 on specific and substantial disputes of fact, necessary for the Commission's decision, that cannot be resolved with sufficient accuracy except in a formal hearing. The staff will be a party in any such formal hearing. Neither the Commission nor the Presiding Officer will entertain motions from the parties that request such special procedures or formal hearings.

§2.1323 Presentation of testimony in an oral hearing.

(a) All direct testimony in an oral hearing shall be filed no later than 15 days before the hearing or as otherwise ordered or allowed pursuant to the provisions of §2.1322.

(b) Written testimony will be received into evidence in exhibit form.

(c) Participants may designate and present their own witnesses to the Presiding Officer.

(d) Testimony for the NRC staff will be presented only by persons designated by the Executive Director for Operations for that purpose.

(e) Participants and witnesses will be questioned orally or in writing and only by the Presiding Officer. Questions may be addressed to individuals or to panels of participants or wit-nesses.

(f) The Presiding Officer may accept written testimony from a person unable to appear at the hearing, and may request him or her to respond to questions.

(g) No subpoenas will be granted at the request of participants for attendance and testimony of participants or witnesses or the production of evidence.

34

§2.1324 Appearance in an oral hearing.

(a) A participant may appear in a hearing on her or his own behalf or be represented by an authorized representative.

(b) A person appearing shall file a written notice stating her or his name, address and telephone number, and if an authorized representative, the basis of her or his eligibility and the name and address of the participant on whose behalf she or he appears.

(c) A person may be excluded from a hearing for disorderly, dilatory or contemptuous conduct, provided he or she is informed of the grounds and given an opportunity to respond.

§2.1325 Motions and requests.

(a) Motions and requests shall be addressed to the Presiding Officer, and, if written, also filed with the Secretary and served on other participants.

(b) Other participants may respond to the motion or request. Responses to written motions or requests shall be filed within 5 days after service unless the Commission or Presiding Officer directs otherwise.

(c) The Presiding Officer may entertain motions for extension of time and changes in schedule in accordance with paragraphs (a) and (b) of this section.

(d) When the Commission does not preside, in response to a motion or request, the Presiding Officer may refer a ruling or certify a question to the Commission for decision and notify the participants.

{e) Unless otherwise ordered by the Commission, a motion or request, or the certification of a question or referral of a ruling, shall not stay or extend any aspect of the hearing.

§2.1326 Burden of proof.

The applicant or the proponent of an order has the burden of proof.

35

§2.1327 Application for a stay of the effectiveness of NRC staff action on license transfer.

(a) Any application for a stay of the effectiveness of the NRC staff's order on the license transfer application shall be filed with the Commission within 5 days of the issuance of the notice of staff action pursuant to §2.1316(a).

(b) An application for a stay must be no longer than 10 pages, exclusive of affidavits, and must contain:

(1)

A concise summary of the action which is requested to be stayed; and (2)

A concise statement of the grounds for a stay, with reference to the factors specified in paragraph (d) of this section.

(c) Within 10 days after service of an application for a stay under this section, any participant may file an answer supporting or opposing the granting of a stay. Answers must be no longer than 10 pages, exclusive of affidavits, and should concisely address the matters in paragraph (b) of this section, as appropriate. No further replies to answers will be entertained.

(d) In determining whether to grant or deny an application for a stay, the Commission will consider (1) Whether the requestor will be irreparably injured unless a stay is granted; (2) Whether the requestor has made a strong showing that it is likely to prevail on the merits; (3) Whether the granting of a stay would harm other participants; and (4) Where the public interest lies.

§2.1328 Default.

When a participant fails to act within a specified time, the Presiding Officer may consider that participant in default, issue an appropriate ruling and proceed without further notice to the defaulting participant.

36

§2.1329 Waiver of a rule or regulation.

(a) A participant may petition that a Commission rule or regulation be waived with respect to the license transfer application under consideration.

(b) The sole ground for a waiver shall be that, because of special circumstances concerning the subject of the hearing, application of a rule or regulation would not serve the purposes for which it was adopted.

(c) Waiver petitions shall specify why application of the rule or regulation would not serve the purposes for which it was adopted and shall be supported by affidavits to the extent applicable.

(d) Other participants may, within 10 days, file a response to a waiver petition.

(e) When the Commission does not preside, the Presiding Officer will certify the waiver petition to the Gommission, which, in response, will grant or deny the waiver or direct any further proceedings.

§2.1330 Reporter and transcript for an oral hearing.

(a) A reporter designated by the Commission will record an oral hearing and prepare the official hearing transcript.

(b) Except for any portions that must be protected from disclosure under 10 C.F.R. 2.790, transcripts will be placed in the Public Document Room, and copies may be purchased from the Secretary, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555.

(c) Corrections of the official transcript may be made only as specified by the Secretary.

§2.1331 Commission action.

(a) Upon completion of a hearing, the Commission will issue a written opinion including its decision on the license transfer application and the reasons for the decision.

37

(b) The decision 'On the application following the hearing will be based on the record developed at hearing.

PART 51 -ENVIRONMENTAL PROTECTION REGULATIONS FOR DOMESTIC LICENSING AND RELATED REGULA TORY FUNCTIONS

6. the authority citation for Part 51 continues to read as follows:

AUTHORITY: Sec. 161, 68 Stat. 948, as amended, sec. 1701, 106 Stat. 2951, 2952, 2953, (42 U.S.C. 2201, 2297f); secs. 201, as amended, 202, 88 Stat. 1242, as amended, 1244 (42 U.S.C. 5841, 5842).

Subpart A also issued under National Environmental Policy Act of 1969, secs. 102, 104, 105, 83 Stat. 853-854, as amended (42 U.S.C. 4332, 4334, 4335); and Pub. L.95-604, Title 11, 92 Stat. 3033-3041; and sec. 193, Pub. L. 101-575, 104 Stat. 2835 42 U.S.C. 2243). Section 51.20, 51.30, 51.60, '51.80, and 51.97 also issued under secs. 135, 141, Pub. L.97-425, 96 State. 2232, 2241, and sec. 148, Pub. L. 100-203, 101 Stat. 1330-223 (42 U.S.C. 10155, 10161, 10168). Section 51.22 also issued under sec. 274, 73 Stat. 688, as amended by 92 Stat. 3036-3038 (42 U.S.C. 2021) and under Nuclear Waste Policy Act of 1982, sec 121, 96 Stat. 2228 (42 U.S.C. 10141). Sections 51.43, 51.67, and 51.109 also under Nuclear Waste Policy Act of 1982, sec 114(f), 96 Stat. 2216, as amended (42 U.S.C. 10134).

7. In §51.22, a new paragraph (c)(21) is added to read as follows:

§51.22 Criterion for categorical exclusion; identification of licensing and regulatory actions eligible for categorical exclusion or otherwise not requiring environmental review.

(c) 38

(21) Approvals of direct or indirect transfers of any license issued by NRC and any associated amendments of license required to reflect the approval of a direct or indirect transfer of an NRC license.

~.J!-

AoLt I

Dated at Rockville, Maryland, this__.7:....__~_day of.:;...~~

......... ~----'-' 1998.

For Nuclear Regulatory Commission.

Secretary of the Commission 39

NOTE TO:

Emile Julian FROM:

Chief, Docketing and Services Branch Carol Gallagher ADM,DAS October 13, 1998

SUBJECT:

DOCKETING OF COMMENT ON PROPOSED RULE, "STREAMLINED HEARING PROCESS FOR NRC APPROVAL OF LICENSE TRANSFERS" Attached for docketing is a comment letter related to the subject proposed rule. This comment was received via e-mail October 13, 1998. The submitter's name is J.C. Fornicola, Director, Nuclear Safety Assessment, GPU Nuclear, 1 Upper Pond Road, Parsippany, New Jersey 07054. Please send a copy of the docketed comment to Joseph Gray (mail stop O15-B-

18) for his records.

Attachment:

As stated cc w/o attachment:

J. Gray

NOTE TO:

Emile Julian FROM:

Chief, Docketing and Services Branch Carol Gallagher ADM,DAS October 13, 1998

SUBJECT:

DOCKETING OF COMMENT ON PROPOSED RULE, "STREAMLINED HEARING PROCESS FOR NRC APPROVAL OF LICENSE TRANSFERS" Attached for docketing is a comment letter related to the subject proposed rule. This comment was received via the rulemaking forum website on October 13, 1998. The submitter's name is Anne W. Cottingham, Winston & Strawn, 1400 L Street, NW, Washington DC 20005.

Please send a copy of the docketed comment to Joseph Gray (mail stop O15-B-18) for his records.

Attachment:

As stated cc w/o attachment:

J. Gray

NOTE TO:

FROM:

Emile Julian Chief, Docketing and Services Branch Carol Gallagher ADM,DAS September 24, 1998

SUBJECT:

DOCKETING OF COMMENT ON PROPOSED RULE - STREAMLINED HEARING PROCESS FOR NRC APPROVAL OF LICENSE TRANSERS Attached for docketing is a comment letter related to the subject proposed rulemaking.

This comment was received via the rulemaking website on September 24, 1998. The submitter's name is Patrick Carney, Utility Workers Union Of America, AFL-CIO Local 369, 120 Bay State Drive, Braintree, MA 02184. Please send a copy of the docketed comment to Joseph R. Gray (mail stop 015-8-18) for his records.

Attachment:

As stated cc w/o attachment:

J. Gray