ML20126A402
| ML20126A402 | |
| Person / Time | |
|---|---|
| Issue date: | 12/07/1992 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| References | |
| FRN-57FR24394, RULE-PR-52 NUDOCS 9212210035 | |
| Download: ML20126A402 (9) | |
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I:;t.PIRD NUCLEAR REGULATORY COMMISSION UNC 10 CFR Part 54
- 9 P32 Standard Design Certification Rulemaking Procedures; Notice of Availability AGENCY: Nuclear Regulatory Commission.
ACTION: Notice of Availability.
SUMMARY
- The Nuclear Regulatory Commission (NRC) is making available to the public a paper, SECY 92-381 (November 10, 1992),
prepared by the Office of the General Counsel (OGC) which provides final recommendations t; the Commission on design certification rulemaking procedures for the initial design certification rulemaking.
ADDRESSES: Requests for copies of SECY 92-381 shoold be sent to Geary S. Mizuno, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555. Copies of SECY 92-381 may be examined, along with comments received on the draft OGC paper- (SECY-92-170), and the transcript of a July .20, 1992 workshop on design certification procedures, at the NRC Pyblic Document Room at 2120 L Street, NW (Lower Level), Washington, D.C. between the hours of 1:45 a.m. and 5:15 p.m. on Federal workdays.
FOR FURTHER INFORMATION CONTACT: Geary S. Mizuno, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555, telephone: (301) 504-1639. . (). } gl
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i SUPPLEMENTARY INFORMATION: Under 10 CFR Part 52, designs for nuclear power plants are to be certified through rulemaking, in which the- public has an opportunity to submit written comments on f
the proposed design certification rule, as required by the Administrat.1ve Procedure Act (APA). However, Part 52 goes beyond the requirements of the APA by providing the public an opportunity to requent a hearing before an Atomic Safety and Licensing Board (Licensing Board) in the design certification rulemaking. Although hearings in NRC rulemakings are not unprecedented, hg . , the 1 rulemaking associated with proposed adoption of the Generic Environmental Statement on Mixed Oxide Fuel (GESMO), they have been extremely rare and a.ui generis, and therefore provide no compelling precedent on what procedures should be followed here.
To assist the commission in preparing for the first design certification rulemaking proceeding, OGC prepared a draf t paper, SECY 92-170 (May 8, 1992) which identified and analyzed issues relevant to establishing procedures to govern design certification ru?.cmaking. SECY 92-170 was made public by the Commission (57 FR 24394; June 9, 1992), and a Commission meeting on the paper was held on June 1, 1992. Thereafter, in SECY 92-185 (May 19, 1992),
OGC proposed holding a public workshop for the purpose of facilitating public discussior. on the issues raised in SECY 92-170, and to obtain the comments of the public on those issues. Notice of the workshop was published in the Federal Register (57 FR 24394; June 9, 1992). A 30-day period following the workshop was provided i;
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I for the public to submit written comments on SECY 92-170. The 1 workshop was held on July 20, 1992. A transcript was kept of the workshop proceedings and placed in the Public Document Room.
Approximately 46 persons outside of the NRC attended the workshop; an additional 8 persons requested copies of the SECY paper and workshop materials, but did not attend. Eleven written comments were received following the workshop.
After consideration of the panel discussions at the public workshop and the written comments received after the workshop, OGC has prepared SECY 92-381 which identifies and analyzes the issues relevant to design certification rulemaking procedures, and provides final recommendations to the Commission. Five principal issues on design certification rulemaking procedures were identified in SECY-92-170. SECY 92-381 now provides final recommendations on each of these issues, as described below.
l The first issue is the scope of the Atomic Safety and-Licensing Board's responsibilities in a design certification rulemaking hearing. oGC recommended preliminarily that the l Licensing Board act as " limited magistrate" to compile a record on controverted issues and certify the record to the Commission for i
resolution. Af ter consideration of written public comments and the discussions at the public workshop, OGC now recommends an approach similar to that of a " full magistrate." Under this approach, the
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Licensing Board would have the option of, but not be required to, prepare recommendations on controverted hearing issues.
The second issue is whether the Commission should apply n pn tn and/or separation of function limitations to the Commission (and Licensing Board, as applicable) in the design certification rulemaking proceeding. OGC recommended preliminarily that where hearings are held in design certification rulemakings, that the Commission apply limited separation of functions. This would allow the Commission to obtain the advice and assistance of the staff members who participated in the review of the design certification application and any hearing, but that such communications would occur in a public process, M., preparation of SECY papers in response to Commission SRMs, and public meetings between the Commission and the staff. In the absence of a hearing, the Commission could obtain the advice and assistance of the staff the same as in any ordinary rulemaking. In SECY 92-381, OGC continues to recommend this approach. OGC also recommends in SECY 92-381 that regardless of whether hearing requests are received, that n r>arte limitations be followed from the time that an NPR is published, so that all Staff and Commission communications with persons outside the NRC on all substantive rulemaking matters (not just controverted issues) be docketed.
Third, SECY 92-170 discussed whether a threshold should be adopted by the Commission for a hearing request submitted by an
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l interested member of the public in a design certification. OGC ,
recommended preliminarily that a person requesting an informal hearing be required to (a) submit written comments in the written comment period; (b) submit the written presentations proposed to be included in the informal hearing; and (c) demonstrate that they, or persons they intend to retain to represent them in the informal hearing, have the qualifications to contribute significantly to the !
development of the hearing record on the controverted issues. OGC now recommends in SECY 92-381 that a person requesting an informal hearing need only: (a) submit the written presentations proposed to ,
be included in the informal hearing; and (b) demonstrate that they, or persons they intend to retain to represent them in the informal hearing, have the qualifications to contribute significantly to the development of the hearing record on the controverted issues. OGC no longer recommends the proposed third requirement for submission of written comments, since it is largely duplicative of the requirements to submit the written presentations. OGC also recommends that the Commission make clear that a person need not meet the test of an " expert witness" in order to satisfy tne qualifications requirement. Rather, the person must demonstrate that, because of knowledge, experience, education or training, he or she can contribute signficantly to the development of the record ,.
on the controverted issue.
The structure and timing of the hearing, including the time for filing informal hearing requests and requests for additional
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procedures, is the fourth area requiring Commission guidance. OGC recommended preliminarily that informal hearing toquests be filed concurrently with the time for submitting written comments, which oGC preliminarily recommends be set normally at 90 days. If the Commission grants the informal hearing requests, oGC recommended preliminarily that parties be provided the opportunity to make oral presentations before the Licensing Board, and that the Licensing Board be permitted to ask questions at the oral hearing without any special finding by the Licensing Board. Requests for additional '
procedures or full formal hearings under 10 CFR part 2, Subpart G, would normally be submitted at the time the outlines of the oral presentations are due, which OGC preliminarily recommended should be filed 30 days before the oral hearing. Thereafter, a special showing would have to be made for an untimely request for additional hearing procedures or a full formal hearing. As a result of additional consideration following the public comments, OGC now recommends that a 120-day period be provided for submitting written comments and requests for informal hearings. oGC also has 1
changed its recommendation with respect to the timing of requests for additional procedures or full formal hearings. OGC now recommends that parties should filo their requests for additional procedures or a formal hearing at the conclusion of the oral phase.
of the hearing, with the exception of requests for discovery.
Discovery requests would be filed with the Licensing Board within 15 days of . 10 Commission's grant of an informal hearing. The
Licensing Board would refer meritorious requents to the Commission for final determination.
Finally, the use of, and access to, proprietary information in the design certification rulemaking was discussed in SECY 92-170.
oGC recommended preliminarily that both " Tier 1" and " Tier 2" design certification information should not contain any proprietary information. In addition, oGC recommended preliminarily that access to proprietary information be provided following docketing of the design certification application, and that non-disclosure agreements be used in order to obtain access to proprietary information from the NRC's public document room (PDR) . In SECY 92-381 OGC now proposes two alternatives for addressing the incorporation of proprietary information into a design certification rulemaking. The first alternative is that all important design information in Tiers 1 and 2 be non-proprietary, although proprietary information could be referenced as a basis for both tiers. The second alternative is to seek a formal opinion from the office of the Federal Register on incorporation by ref erence of proprietary information into Tier 2. With respect to public access to proprietary information, OGC proposes three alternatives for Commission consideration. The first alternative would require potential commenters and parties in any design certification hearing to seek access to proprietary information directly from the design certification applicant. Disputes over access would be resolved by the Commission or the Licensing Board,
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an appropriate. Access to proprietary information would await the initiation of the formal rulemaking proceeding (publication of an 1
14PR) . Accees would be provided to all persons who would sign a non-disclosure statement. The second alternative would be the same as the first, except the that persons seeking access would have to provide an affidavit explaining why access to proprietary information is necessary to provide comments and shows that the person has the necessary expertise to use the information and contribute significantly to the rulemaking record. The final alternative would grant access only to parties in any rulemaking hearing which the commission authori::es. Access would be granted only to parties who can show that the proprietary information is relevant to the issues at the hearing, the non-proprietary information is insufficient to adeauately address the issues in the hearing, and that the party seeking access has the necessary expertise to use the information and contribute significantly to the rulemaking recoid.
The Commission is making SECY 92-381 available to the public to enhance public awareness of the design certification rulemaking process.
The Commission will establish the procedures to be followed in the first design certification rulemaking proceeding (expected to be for the General Electric (GE) Advanced Boiling Water Reactor (ABWR)) in the notice of proposed rulemaking for that
- design certification.
-9 Dated at Rockville, MD this day of GCgt ,
1992.
For t Nuclear egu ytory Commission.
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'Samusi J. Clillk, JLe N Secretary oH the Commissibn.
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