[Federal Register Volume 60, Number 172 (Wednesday, September 6, 1995)]
[Notices]
[Pages 46316-46318]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-22035]



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[[Page 46317]]


NUCLEAR REGULATORY COMMISSION
[Docket No. 50-29]


Yankee Atomic Electric Co.; Yankee Nuclear Power Station; Federal 
Court Decision and Opportunity for Public Comments

    On July 20, 1995, the United States Court of Appeals for the First 
Circuit issued a decision granting a petition by the Citizens Awareness 
Network (``CAN'') for review of a decision by the Nuclear Regulatory 
Commission. See Citizens Awareness Network, Inc. v. NRC, No. 94-1562, 
------F.3d------, 1995 WL 419188 (1st Cir., July 20, 1995). The First 
Circuit found that the Commission erred when it rejected CAN's request 
for a hearing on the component removal project (``CRP'') that Yankee 
Atomic Electric Power Company (``YAEC'') is carrying out as part of 
decommissioning the Yankee Nuclear Power Station, located in Rowe, 
Massachusetts. The Court held that ``CAN was entitled to a hearing 
under section 189a (of the Atomic Energy Act of 1954) in connection 
with the NRC decision to permit YAEC's early CRP.'' Slip op. at 26. The 
Court also held that the Commission had violated the National 
Environmental Policy Act by permitting YAEC to initiate the CRP before 
the agency had prepared an environmental assessment or impact 
statement. The Court remanded the case to the Commission for further 
action in accordance with these holdings.
    In reaching these results the Court criticized the Commission's 
change in interpretation of its 1988 decommissioning regulations 1 
that it announced in a staff requirements memorandum dated January 14, 
1993. In that memorandum, the Commission decided to allow its licensees 
to conduct ``any decommissioning activity'' prior to NRC approval of a 
decommissioning plan, so long as the activity did not ``violate the 
terms of the licensee's existing license * * * or 10 CFR 50.59 as 
applied to the existing license.'' Previously, the Commission had 
required that ``major dismantling and other activities * * * must await 
NRC approval of a decommissioning plan.'' See Long Island Lighting Co. 
(Shoreham Nuclear Power Station, Unit 1), CLI-91-2, 33 NRC 61, 73 n.5 
(1991). Accord, Sacramento Municipal Utility District (Rancho Seco 
Nuclear Generating Station), CLI-92-2, 35 NRC 47, 61 n.7 (1992). 
Relying on the Commission's new interpretation, YAEC began removing 
major components from its Yankee reactor before obtaining approval of a 
decommissioning plan.2 In its decision, the First Circuit held 
(among other things) that the Commission had failed to give an adequate 
explanation for its shift in policy.

    \1\ See 53 FR 24018 (June 27, 1988).
    \2\ Subsequently, on February 14, 1995, the NRC approved a 
decommissioning plan for Yankee Rowe. See 60 FR 9870 (February 22, 
1995). During the approval process, the NRC staff held an informal 
public meeting to receive comments about the plan.
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    The Commission will not seek either rehearing of this decision by 
the First Circuit or review in the United States Supreme Court. When 
the First Circuit's mandate issues, the Commission will comply with the 
decision.3 By this notice the Commission intends (1) to inform 
persons with an interest in decommissioning activities at Yankee about 
the Commission's present views on what compliance likely will entail 
and (2) to solicit those persons' views on the compliance issue.

    \3\ Pursuant to Rule 41 of the Federal Rules of Appellate 
Procedure, the Court's mandate will issue no later than September 
12, 1995, unless the intervenor YAEC petitions for rehearing or 
obtains a stay of mandate pending a petition for Certiorari.
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    The Commission currently believes that, pending completion of its 
ongoing rulemaking on decommissioning, further decommissioning 
activities must be conducted under NRC decommissioning regulations as 
the Commission interpreted and applied them prior to the 1993 change in 
interpretation that the court rejected.4 Prior to January, 1993, 
NRC licensees could not initiate major dismantling activities prior to 
Commission approval of a decommissioning plan. Furthermore, prior to 
1993 the Commission consistently offered opportunities for hearings on 
proposed decommissioning plans.5

    \4\ The Commission has published for comment a proposed 
decommissioning rule that would introduce significant changes in the 
present regulations. See 60 FR 37374 (July 20, 1995). Because this 
new rulemaking is underway, the Commission does not intend to 
undertake procedures to reinstate the 1993 policy change.
    \5\ The NRC staff offered an opportunity for hearings on 
proposed orders approving the Shoreham, Fort St. Vrain, and Rancho 
Seco decommissioning plans, which were the only plans approved under 
the Commission's 1988 decommissioning regulations. See, e.g., 56 FR 
66459 (December 23, 1991); 57 FR 8940 (Mar. 13, 1992); and 57 FR 
9577 (Mar. 19, 1992). A hearing was requested on the Rancho Seco 
plan and was being conducted when the case was settled. A hearing 
was requested on the Shoreham plan, but the case was settled before 
the hearing opened.
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    Thus, after the mandate issues, the Commission intends to issue a 
Federal Register notice that will offer an opportunity for a hearing on 
the Yankee decommissioning plan and on whatever remains to be done 
under the CRP. In addition, the Commission is considering whether it is 
necessary to halt any decommissioning activity at Yankee, pending a 
hearing. The First Circuit's decision does not require the Commission 
to take affirmative action halting dismantling activities YAEC 
currently is conducting in reliance on the interpretation rejected by 
the court. Nevertheless, the Commission's prior interpretation of its 
rules precludes major dismantling activities prior to approval of a 
decommissioning plan.
    Comments submitted at this time by interested persons should 
address the Commission's legal authority to allow or forbid further 
decommissioning activity at Yankee and should address the current 
balance of equities, including (1) any consequences for public health 
and safety and the environment, (2) the costs to YAEC and others from 
interrupting decommissioning activities, and (3) the public interest. 
The Commission also requests comments on the Commission's proposed 
response to the First Circuit decision as a general matter. Alternative 
suggestions on how the Commission should oversee decommissioning in the 
wake of the First Circuit decision are welcome.
    The NRC requests YAEC to submit its comments no later than 10 
calendar days after publication of this notice. The NRC requests other 
interested members of the public, including CAN, to submit comments as 
soon thereafter as possible, but no later than 17 calendar days after 
publication of this notice. The NRC promptly will place copies of all 
comments in its Public Document Room and in the Local Public Document 
Room at the Yankee site.
    In addition, CAN and YAEC should serve their comments on each other 
and on the NRC staff. All comments should be addressed to: Emile 
Julian, Chief, Docketing and Service Branch, Office of the Secretary, 
U.S. Nuclear Regulatory Commission, Washington, DC 20555. Service of 
comments on the NRC Staff may be accomplished by addressing them to: 
Seymour H. Weiss, Chief, Non-Power Reactors and Decommissioning Project 
Directorate, Office of Nuclear Reactor Regulation, U.S. Nuclear 
Regulatory Commission, Washington, DC 20555, and Lawrence J. Chandler, 
Esq., Assistant General Counsel for Hearings and Enforcement, U.S. 
Nuclear Regulatory Commission, Washington, DC 20555. Comments may be 
hand-delivered to the NRC's Offices at 11555 Rockville Pike, Rockville, 
Maryland 20852.

FOR INFORMATION CONTACT: Charles Mullins, Office of the General 
Counsel, U.S. Nuclear Regulatory Commission, 

[[Page 46318]]
Washington, DC 20555, telephone (301) 415-1606.

    Dated at Rockville, MD, this 30th day of August, 1995.

    For the Nuclear Regulatory Commission.
Andrew L. Bates,
Acting Secretary of the Commission.
[FR Doc. 95-22035 Filed 9-5-95; 8:45 am]
BILLING CODE 7590-01-P