ML20203E152

Comment on Final Policy Statement on Restucturing & Economic Deregulation of Electric Industry.Final Policy Statement Does Not Impose Any Regulatory Obligation on Licensees

ML20203E152
Person / Time
Issue date:	02/20/1998
From:	Hoyle J NRC OFFICE OF THE SECRETARY (SECY)
To:	Newell G SPIEGEL & MCDIARMID
References
FRN-61FR49711, RULE-PR-50 61FR49711, NUDOCS 9802260271
Download: ML20203E152 (2)

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[ga a%\ umTED STATES 4  !' 'l NUCLE AR REGUL ATORY COMMISSION i :i wasmuotos o c rosss-oooi DOCKETED USNRC s

%, February 20, 1993 secanan, DOCKET NUMBER  % FEB 24 P1 :39 PROPOSED RULE PR so Gary J. Newell, Esq.

Spiegel & McDiarmid (G/ pg y97//) OFi ;

Ru 1350 New York Avenue, N. W. ADJL1 " aF Washington, D. C. 20005-4798 RE: FINAL POLICY STATEMENT ON THE RESTRUCTURING AND ECONOMIC DEREGULATION OF THE ELECTRIC UTILITY INDUSTRY

Dear Mr. Newell:

By letter dated October 14,1997, you filed " Publicly Owned Systems' Request for Reconsideration or, in the Alternative, Motion to Delay Effectiveness of a Portion of the Final Policy Stetement in Order to Receive Additional Public Comment", on behalf of eight municipal and coop 3ratively owned electric utility systems (" Publicly Owned Systems"). The Publicly Owned Systems requested that the Commission reconsider that portion cf the Final Policy Statement which addressed joint and severalliability of co-owners / licensees of nuclear plants.

For the following reasons, the Commission declines to reconsider or delay the effectiveness of that portion of the Final Policy Statement.

The Final Policy Statement did not create a binding rule or regulation. It in no way altered any private contractual arrangements. Moreover, it expressed no change in prior NRC practice or policy. It set forth a view that the NRC may, under unusual, specific circumstances, consider

- imposing joint and several responsibility on co-owners / licensees of nuclear plants. A statement of policy creales no binding regulation or rule for licensees. See Limerick Ecology Action v.

NRC,869 F. 2d 719,736 (3rd Cir.1989). Thus, no rights or obligations of licensees are affected by the policy statement.

In addition, the NRC has not stated that it will abrogate contractual relations creating pro-rata responsibilities or interfere with a pro-rata division of responsibility. In fact, the NRC acknowledged that pro-rata division of responsibility is the norm, and should remain the operative standard. Rather, the NRC expressed the view that in extraordinary circumstances, where public health and safety is adversely affected, it would consider imposing joint and several responsibility in order to address the health and safety issue. This does not represent a departure from previous Commission practice. See, e.g., Public Service Comprev of New Hampshire (Seabrook Station, Units 1 and 2), CLI-88-10,28 NRC 573 (1988).

The Final Policy Statement is fully consistent with the " Proposed Rule on Financial Assurance Requirements for Decommissioning Nuclear Power Plants," (62 Fed. Reg. 47588 (September 10,1997)), wherein the NRC noted that the broad imposition of joint and severalliability for decommissioning costs may not be necessary because the Commission generally considers the level of financial assurance for decommissioning to be adequate. Thus the NRC saw "no i

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!a G. Newell need to impose an additional regulatory obligation of joint liability on co-owners or co-licensees " 62 Fed. Reg. 47588 at 47594. If the Publicly Owned Systems, nevertheless, believe there is some inconsistency between the proposed rule and the Final Policy Statement, they may offer such comment with respect to the proposed rule.

The Commission did not intend to create additional uncertainty regardmg liability, especially recognizing the present climate of electric utility restructuring. Rather, the Commission desires to clearty state possible courses of ac%rs should circumstances dictate. The Final Policy Statement does not impose any regulatory obligation on heensees. As stated above, it is a statement of policy, not a binding rule. It merely leaves open, and gives notice of, the possibility that under e=rtain unusual circumstances, the NRC may consider imposing joint and several liability. l The f.cmmission sees no need to delay the effectiveness of that portion of the policy statement l pending additional comment. The comment period for the draft policy statement, which was  ;

open from September 23,1996 until February 9,1997, provided ample time for comment on all issues raised. it is unlikely that an additional comment period would provide information or insight on this issue not previously brought to the attention of the Commission.

For the foregoing reasons, the Commission declines to reconsider or delay implementation of the Final Policy Statement.

Sincerely,

/

Jo n C. Hoy , Secretary

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