[Federal Register Volume 68, Number 192 (Friday, October 3, 2003)]
[Proposed Rules]
[Pages 57383-57392]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-25094]


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NUCLEAR REGULATORY COMMISSION

10 CFR Part 52

[Docket No. PRM 52-1]


Nuclear Energy Institute; Denial of Petition for Rulemaking

AGENCY: Nuclear Regulatory Commission.

ACTION: Denial of petition for rulemaking.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is denying a petition 
for rulemaking (PRM 52-1) submitted by the Nuclear Energy Institute 
(NEI or the petitioner). The petitioner requested that the NRC amend 
its regulations to allow applicants seeking an early site permit (ESP) 
and a combined license (COL) to use existing information from prior 
licensing actions as resolved information that has been approved by the 
NRC and has been subject to a public hearing. The Commission is denying 
the petition because most of the efficiencies, regulatory stability and 
predictability which are the object of the petitioner's proposal can be 
achieved under existing regulations and the guidance that the 
Commission has directed the NRC staff to prepare. In addition, several 
key aspects of the petition are based on a misapplication of the 
``current licensing basis'' concept and the Backfit Rule, and the 
petition does not represent a viable approach for achieving the desired 
efficiencies.

ADDRESSES: Copies of the petition for rulemaking, the public comments 
received, and the NRC's letter of denial to the petitioner are 
available for public inspection, or copying for a fee, at the NRC's 
Public Document Room, located at One White Flint North, 11555 Rockville 
Pike (first floor), Rockville, Maryland. These documents are also 
available on the NRC's rulemaking web site at http://ruleforum.llnl.gov.

FOR FURTHER INFORMATION CONTACT: Stephen S. Koenick, Office of Nuclear 
Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 
20555-0001, telephone (301) 415-1239, e-mail: [email protected].

SUPPLEMENTARY INFORMATION: 

[[Page 57384]]

Background

    By letter dated July 18, 2001, NEI submitted a petition for 
rulemaking (PRM) to amend 10 CFR part 52. The petitioner requested that 
the NRC amend its regulations governing ESP and COL applications at 
existing reactor sites to make the development and regulatory review of 
the application more efficient. The petitioner proposes to incorporate 
by reference and treat as resolved, existing information. By so doing, 
the petitioner wishes to eliminate the need for what it believes is 
duplicate applicant preparation and NRC review of existing information 
relating to a licensed facility that has been previously approved by 
the NRC and has been subject to a public hearing. The petitioner 
believes that its proposed amendments would enhance the focus and 
efficiency of the ESP and COL licensing processes.
    A notice of receipt of the petition was published in the Federal 
Register on September 24, 2001 (66 FR 48832). The comment period closed 
on November 8, 2001. The NRC received letters from ten commenters. Nine 
of the ten commenters were in favor of the petition. Seven of the 
favorable letters were from nuclear utilities, one was from a vendor, 
and one was from the petitioner. One commenter, a member of a public 
advocacy group, opposed the petition. The comments are discussed in 
this document.
    Separately, the NRC is currently conducting rulemaking to amend 10 
CFR Part 52. This rulemaking activity addresses lessons learned during 
previous design certification reviews and addresses certain elements of 
the ESP, design certification, and COL review processes. NEI requested 
in its July 18, 2001, letter forwarding the petition that this petition 
be incorporated into the ongoing rulemaking effort. The Commission has 
decided further consideration of the petition during the part 52 
rulemaking is not necessary, but the Commission will consider any 
relevant proposals to increase efficiencies, regulatory stability and 
predictability for part 52 regulatory processes that may be submitted 
during the public comment period on the proposed Part 52 rule.

The Petition

    The petitioner expects that existing licensees will order new 
nuclear power reactors in the future and that many of the new reactors 
will be located on sites of currently operating plants. Additionally, 
the petitioner anticipates that the new reactors will rely on a number 
of the operational programs currently being used by the existing 
licensees. The petitioner believes that its proposed Sec. Sec.  52.16 
and 52.80 should be added to part 52 to allow the use of existing 
information as a baseline and to limit the review and opportunity for a 
hearing to the consideration of changed circumstances, such as new 
regulations and significant new information, to improve the efficiency 
of the ESP and COL licensing processes. In its July 18, 2001, letter 
forwarding the petition, the petitioner requested that the proposed 
amendments be included in the part 52 rulemaking now in progress.
    The petitioner notes that Subpart A of Part 52 contains provisions 
governing issuance of ESPs. The petitioner proposes that a new Sec.  
52.16 be added to Subpart A to allow an ESP applicant to incorporate, 
by reference, all or portions of the ``current licensing basis'' for an 
existing reactor site to the extent that it is valid and applicable to 
one or more additional nuclear power plants that ``fit within the ESP 
envelope.'' The proposed Sec.  52.16 also would require that any 
information incorporated by reference be augmented to include:
    1. Significant new safety or environmental information that 
materially affects the ability of the site to support the proposed 
additional nuclear facility;
    2. Information regarding the cumulative radiological and 
environmental impacts of the existing facility and the facility as 
described in the ESP application;
    3. An analysis of the potential safety impacts of the existing 
facility on the suitability of the site for the facility as described 
in the ESP application;
    4. An analysis of the potential safety impacts on the existing 
facility from the facility as described in the ESP application; and
    5. Information that addresses regulations applicable to siting 
issues that became effective after licensing of the current facility to 
the extent that these regulations are not addressed in the current 
licensing basis.
    The petitioner states that under proposed Sec.  52.16, the NRC 
would treat those matters incorporated by reference as resolved, except 
to the extent that those matters are subject to augmentation with the 
new information described above. The petitioner also states that this 
section would allow the NRC to impose a change in the application with 
respect to the information incorporated by reference to the extent that 
the change satisfies the principles underlying the Backfit Rule in 10 
CFR 50.109. The petitioner believes that in preparing the environmental 
impact statement (EIS) for the ESP, the NRC should adopt the applicable 
portions of the existing EIS for the site, modified or supplemented as 
necessary to reflect the NRC's review of the new environmental 
information proposed in Sec.  52.16.
    The petitioner notes that subpart C of 10 CFR part 52 contains 
provisions governing issuance of COLs. The petitioner states that 
proposed Sec.  52.80, with provisions similar to those proposed in 
Sec.  52.16, would be added to Subpart C. The petitioner also states 
that proposed Sec.  52.80 would allow a COL applicant to incorporate by 
reference programmatic information identified in the ``current 
licensing basis'' of an existing licensed facility located at the same 
site or at a site owned or operated by the same licensee. Programmatic 
information, as identified by the petitioner, includes, but is not 
limited to, radiological emergency response plans, organizational 
structure, administrative controls to assure safe operation, plans for 
conducting normal operations, physical security plans, and quality 
assurance programs. The proposed Sec.  52.80 would require this 
programmatic information to be augmented to include information on 
regulations that became effective after the existing facility was 
licensed to the extent that these regulations are not addressed by the 
current licensing basis for the existing facility. The petitioner 
states that under this proposed section, the NRC would treat those 
matters incorporated by reference from the existing facility as 
resolved, except to the extent that there is new information. The 
petitioner believes that the NRC could direct that a change be made in 
the COL application with respect to the information incorporated by 
reference to the extent that the change satisfies the principles 
underlying the Backfit Rule, 10 CFR 50.109.
    The petitioner states that the proposed amendments would not only 
be consistent with NRC's mission to ensure adequate protection of the 
public health and safety, the common defense and security, and the 
environment, but also would focus NRC reviews on new information and 
``the incremental impact of an additional unit at an existing site.'' 
The petitioner also states that the proposed amendments would enhance 
the efficiency of the regulatory process, reduce regulatory burden by 
eliminating duplicate reviews of matters resolved in previous 
proceedings, and focus agency resources on new and material information 
and the impact of a potential new plant on the site.

[[Page 57385]]

Public Comments on the Petition

    The NRC received ten comments in response to the petition. Nine of 
the ten comments were in favor of the petition. Seven of the favorable 
comments were from nuclear utilities, one was from a vendor, and one 
was from the petitioner. These commenters summarized the arguments in 
the petition but provided no additional bases in support of the 
petition. They suggested that the petition be included in the current 
Part 52 rulemaking activity. One commenter, a member of a public 
advocacy group, opposed the petition.

Reasons for Denial

    The petition requests that the ESP and COL processes set forth in 
10 CFR part 52 be amended to allow an applicant to use existing 
information supplied to support the license for a different facility in 
an ESP or a COL application and to treat the information as resolved. 
The petition also discusses prior NRC activities that the petitioner 
claims are precedent for the petitioner's proposal. The Commission 
recognizes the advantages of licensing plants in a mature industry 
environment, rather than an emerging industry as was the case for the 
majority of the existing plant licenses. For example, referencing 
already proven programs utilized by a mature industry is much less 
uncertain than new programs proposed for an emerging industry. To the 
extent practicable, the Commission expects applicants for ESPs and COLs 
to rely on previously filed siting and programmatic information, as is 
permitted under existing NRC regulations. To ensure that future license 
applicants and the public understand the staff's review process, the 
Commission has directed the staff to articulate in appropriate guidance 
documents the specific criteria it will use to make its determination 
as to whether new siting information or a program modification is 
necessary. However, there are limitations to using previously filed 
information and insufficient legal bases for the petitioner's 
proposals. Existing information may be referenced, however, applicants 
need to demonstrate the information is technically applicable to the 
prospective licensing action. In addition, this information cannot be 
treated as resolved for the purposes of a hearing, in as much as 
principles of res judicata and collateral estoppel would not provide 
sufficient legal bases to support the petitioner's rulemaking proposal. 
Therefore, for these reasons, the Commission is denying the petition.
    In addition, certain key aspects of the proposal are based on a 
misapplication of the ``current licensing basis'' concept and the 
Backfit Rule. For ESPs and COLs there are no ``current licensing 
bases'' that exist with respect to a new facility-including a new 
facility to be located adjacent to a site of an existing licensed 
facility.

Early Site Permits

    According to the petitioner's proposal, the siting information to 
be used as a basis for evaluating the acceptability of an ESP 
application for a site that is near a site for which a construction 
permit or license has been previously issued by the NRC \1\ would be 
established, in part, by the siting information which the applicant 
proposes to ``incorporate by reference'' from the ``current licensing 
basis'' for the prior construction permit or license. See proposed 
Sec.  52.16(a). The applicant would have to supplement the incorporated 
information to the extent that there is significant new information on, 
inter alia, the ability of the site to support the additional nuclear 
facility contemplated by the applicant, information on cumulative 
radiological impacts, and information addressing new regulations. See 
proposed Sec.  52.16(b). The information incorporated by reference that 
need not be supplemented under paragraph (b), would be treated as 
resolved, unless the NRC met the Backfit Rule. See proposed Sec.  
52.16(d). The information incorporated by reference that must be 
supplemented under paragraph (b) would be subject to NRC review and 
approval, and the Backfit Rule would not apply. A similar approach 
would be used for environmental information. See proposed Sec.  
52.16(c) and (f) [sic].
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    \1\ In pre-application interactions, two of the prospective ESP 
applicants have identified the physical locations of the proposed 
facilities to be at different locations on the proposed sites than 
were considered during the previous licensing actions.
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Use of Information From Prior Licensing Actions
    The petitioner's proposal implies that prior regulatory 
determinations by the NRC staff and licensing decisions in NRC 
adjudicatory proceedings with respect to siting for currently licensed 
plants should have preclusive effect in proceedings for ESPs to be 
located at or near a site for which a construction permit or operating 
license has been issued for another facility. The Commission recognizes 
that practical efficiencies may occur through incorporation of 
previously filed information or reference in some instances to prior 
adjudicatory hearings.
    The Commission's regulations and guidance already afford an 
applicant the opportunity to use information from prior licensing 
decisions. Under Sec.  50.32, ``Elimination of Repetition,'' an 
applicant may incorporate by reference information already filed with 
the Commission. This regulatory provision may be used by an ESP 
applicant to reference information from existing sources, including the 
safety analysis report and the environmental report on the facility 
which is near the location that the applicant proposes to obtain an ESP 
for. Although the current part 52 does not contain a provision that 
explicitly allows ESP applicants to take advantage of Sec.  50.32, it 
was the intent of the Commission that the licensing provisions in Part 
50 would be applicable to the licensing processes in Part 52. See SECY-
02-0077 (May 8, 2002; ADAMS Accession No.: ML021040011), Attachment at 
p.10.
    With respect to the agency's compliance with the National 
Environmental Policy Act (NEPA), the current part 51 regulations 
already permit an applicant or licensee to use prior information. 
Following the receipt of an ESP application, the NRC would conduct a 
scoping process involving interested stakeholders. Under the provisions 
of Sec.  51.29(a), the NRC would use the scoping process to ``identify 
and eliminate from detailed study those issues which are peripheral or 
are not significant or which have been covered by prior environmental 
review'' and to identify other environmental assessments and impact 
statements which are ``related to but are not part of the scope of the 
statement under consideration.'' Another process to use prior 
information is ``tiering.'' Tiering allows federal agencies to rely on 
previous environmental assessments (EAs) and EISs to aid in the 
presentation of issues, eliminate repetition, or reduce the size of an 
EIS. Tiering is encouraged by the Council on Environmental Quality (see 
40 CFR 1520.20), and the NRC's regulations permit the use of tiering 
and incorporation by reference (see 10 CFR part 51, Appendix A.1.(b)). 
The Commission expects that both scoping and tiering with be used in 
appropriate circumstances to limit and focus the environmental issues 
to be addressed in an EIS for an ESP application for a site near an 
existing licensed facility.
    The Commission also expects that the NRC staff's licensing review 
of an application for an ESP located at or near the same site as a 
current or formerly

[[Page 57386]]

licensed facility will draw upon, and be informed by, the body of 
information that has already been amassed for that site as part of the 
previous licensing review. After demonstrating the relevance and 
technical adequacy of the baseline of information for that site, the 
ESP application and the NRC's review should be focused on determining 
whether (1) there is significant new information for determining site 
characteristics; (2) there are new methodologies or techniques for 
collecting and analyzing information on site characteristics which have 
been developed since the earlier review and which are now accepted by 
the staff for conducting such collections and analyses; and (3) the 
regulatory requirements governing the site evaluation and the criteria 
for acceptance of the site have changed since the earlier review. On 
December 23, 2002, the NRC staff issued NRR Review Standard, RS-002, 
``Processing Applications for Early Site Permits: Draft for Interim Use 
and Public Comment,'' (ADAMS Accession No.: ML023530045). The objective 
of this document is to ensure that staff reviews of ESP applications 
and associated environmental reports (ERs) are efficient, effective, 
and consistent, and that the reviews result in high-quality products. 
The primary source of guidance for the site safety assessment review is 
applicable portions of NUREG-0800, ``Standard Review Plan for the 
Review of Safety Analysis Reports for Nuclear Power Plants,'' as 
modified for the ESP review. The primary source of guidance for the ER 
review is applicable portions of NUREG-1555, ``Standard Review Plans 
for Environmental Reviews for Nuclear Power Plants,'' as supplemented 
by RS-002. The Commission has directed the staff to develop specific 
criteria that the staff will use in making its determination whether 
former siting information must be supplemented and new findings made 
with respect to an ESP application at or near a previously licensed 
facility. In developing this guidance, the staff will consider the five 
criteria in proposed Sec.  52.16 for augmenting information. RS-002 and 
the specific criteria will assist the NRC's review in determining 
whether the referenced information is technically relevant to the ESP 
and focus the review on newly identified issues of significant 
technical merit.
    With respect to adjudicatory decisions, it is clear that Commission 
and Licensing Board holdings on legal issues in an earlier proceeding 
constitute precedent for all subsequent proceedings where the same 
legal issue is presented. The Commission also believes that, apart from 
the issue resolution provisions in Part 52 applicable to an ESP 
referenced in a COL application, the doctrines of res judicata (or 
``claim preclusion'') and collateral estoppel (or ``issue preclusion'') 
may be available to preclude certain claims and issues from being 
relitigated in an ESP proceeding where the same party has raised the 
claims and issues in an earlier licensing proceeding at or near a 
previously licensed facility. However, the Commission does not believe 
that either res judicata or collateral estoppel provides a sufficient 
basis for adopting the petitioner's rulemaking proposal. Res judicata 
applies where (1) there has been a final adjudication of the merits of 
a particular cause of action or claim by a tribunal of competent 
jurisdiction; and (2) one of the parties to that adjudication (or party 
in privity with such party) subsequently seeks to advance or defeat the 
same cause of action or claim in either the same proceeding or in a 
separate proceeding involving the parties to the first action or their 
privies. Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 and 
2), CLI-74-12, 7 AEC 203, 212 (1974). The related doctrine of 
collateral estoppel applies when (1) the issue for which preclusion is 
sought is the same issue involved in the previous action; (2) the issue 
was actually litigated; (3) the issue was determined by a valid final 
judgment; and (4) determination of the issue was essential to the prior 
judgment. Carolina Power and Light Co. and North Carolina Eastern 
Municipal Power Agency (Shearon Harris Nuclear Power Plant), ALAB-837, 
23 NRC 525, 536-37 (1986); see also Alabama Power Co. (Joseph M. Farley 
Nuclear Power Plant, Units 1 and 2), ALAB-182, 7 AEC 210, 213 
(1974)(collateral estoppel, unlike res judicata, does not require an 
identity between two causes of action). Additionally, the party in the 
second litigation, who is to be bound by the judgment of the prior 
litigation, must be in privity to a party in the earlier litigation.\2\ 
Id. at 1560. The primary purpose of collateral estoppel and res 
judicata is to ``protec[t] litigants from the burden of relitigating an 
identical issue with the same party or his privy * * *.'' Parklane 
Hosiery Co. v. Shore, 439 U.S. 322, 326 (1979). Both doctrines operate 
in the interest of fairness and efficient case management to bar a 
party to a prior litigation from relitigating an issue or claim 
resolved adverse to it in the prior litigation. Neither of these legal 
doctrines provides a basis for the petitioner's rulemaking proposals, 
inasmuch as the petitioner's proposed rule would attempt to bar any 
party, including a nonparty to the original proceeding, from raising 
the issue in the subsequent ESP proceeding whose application references 
the earlier proceeding.
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    \2\ The concept of privity is the same for res judicata and 
collateral estoppel. It pertains to the relationship between a party 
to a suit and a person who was not a party, but whose interest in 
the action was such that he will be bound by the final judgment as 
if he were a party.
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    The Commission does not agree with the petitioner's suggestion that 
the petitioner's proposed rule is akin to the License Renewal Rule, 10 
CFR part 54, the generic environmental impact statement (GEIS) for 
license renewal which was adopted by rule in part 51, or part 52, each 
of which provide for a delineated scope of issue resolution and a bar 
to litigation. The limited scope of review at license renewal under 
part 54 was supported by technical bases which were referenced in the 
part 54 rulemaking. (See 56 FR 6443; December 13, 1991, and 60 FR 
22461; May 8, 1995). For the GEIS supporting license renewal, the 
environmental issues were resolved on their merits as part of a 
rulemaking adopting the GEIS. (See 10 CFR part 51, appendix B to 
subpart A; 61 FR 66564; December 18, 1996). By contrast, the 
petitioner's proposed rule does not include any reviews of the 
technical basis or a rulemaking finding on the merits of the issues 
that would be precluded in later proceedings. With respect to part 52, 
the Commission explicitly stated that the rule establishes a process 
for determining the adequacy of siting (including related environmental 
issues) for a period of up to 20 years for the purpose of providing 
issue resolution in subsequent proceedings where the ESP is referenced. 
(See 54 FR at 15372, 15378; April 16, 1989). The public is provided 
notice and opportunity to participate in the ESP through a request for 
hearing. Thus, Part 52 establishes a regulatory regime whereby the 
public has fair notice that siting issues must be raised in the ESP 
proceedings, inasmuch as the Commission's resolution of the adequacy of 
siting will ordinarily be binding in a subsequent proceeding 
referencing that ESP. By contrast, when a current plant's siting 
decisions were considered in the construction permit proceeding, there 
was no knowledge or contemplation that issues reviewed and resolved in 
that construction permit proceeding would be given preclusive effect in 
another proceeding for an entirely different plant to be licensed to a 
different location on the same site and

[[Page 57387]]

perhaps an entirely different licensee, as is contemplated under the 
petitioner's proposed rule. For these reasons, the Commission does not 
find that any of these rulemakings constitute a valid legal model for 
the petitioner's proposed rulemaking.
Misapplication of ``Current Licensing Basis'' Concept and the Backfit 
Rule
    While the Commission expects that practical efficiencies, as 
described above, would be realized from using previously filed 
information, the petitioner's proposal to treat such information as 
resolved does not represent a viable approach. Paragraphs (b) through 
(f) of proposed Sec.  52.16 constitute the heart of petitioner's 
proposal, viz., resolution of issues in an ESP proceeding. However, the 
NRC regards the proposal as a misapplication of the ``current licensing 
basis'' concept and the Backfit Rule. The petitioner's proposal uses 
the term ``current licensing basis'' in the context of a site for which 
a construction permit or license has been issued for a different 
facility at a different location on the site. The NRC developed this 
concept for renewing nuclear power plant operating licenses under 10 
CFR part 54. The NRC uses the concept to determine the scope of the NRC 
safety review necessary to support the NRC's decision to renew a 
nuclear power plant's operating license. The NRC limited the scope of 
the NRC safety review for license renewal partly because the NRC has 
already made a licensing finding for the facility. Furthermore, as part 
of the Part 54 rulemaking, the NRC completed a comprehensive 
examination of NRC's post-licensing regulatory activities and 
determined that for all facilities the current licensing bases have 
been subject to continuing NRC oversight and have been appropriately 
updated. Thus, a broad-scope safety review against current requirements 
is unnecessary at license renewal. The renewed license is issued to the 
same facility for which the NRC previously granted operating authority, 
and except for aging management programs, the operating authority for 
the facility under the renewed license is identical to the authority 
under the previous operating license. By contrast, there is no 
``current licensing basis'' for a facility not yet granted a license, 
even if it is located at a site for which a construction permit or 
operating license has been issued to another facility.
    More importantly, information for an existing facility, even if 
updated in accordance with the NRC's regulatory requirements and 
oversight activities, may not be applicable from a technical basis to a 
new facility to be located on the same site as an existing licensed 
facility. The NRC considered two representative areas that could arise 
in reviewing an ESP application, to determine if the NRC's findings on 
these subjects could be used for a new facility to be constructed at 
the same site without change or supplementation, in order to avoid 
duplicative NRC review and approval. These areas are geotechnical 
information and meteorology. In both of these areas, which would not be 
expected to have significant changes from earlier reviews, the NRC 
concluded that simple application of the updated information would be 
insufficient to demonstrate compliance with regulatory requirements in 
effect at the time of the ESP application (which petitioner's proposal 
would require, see Sec.  52.16(d)), and accordingly there would be 
little basis for avoiding necessary NRC review and approval.
    In the geotechnical area, the NRC accepted the suitability of the 
site for construction and operation of a specific facility design. The 
NRC's findings were based upon the applicant's subsurface 
investigations to obtain the necessary geologic and seismic data, and 
the applicant's evaluations of the data to determine the suitability of 
the site for that facility's reactor design. Even if the proposed ESP 
is to be located precisely on the footprint of a previously-approved 
facility that has not been constructed, the NRC believes that 
additional information must be submitted by the applicant and evaluated 
by the NRC to demonstrate that the site is suitable.
    The applicant would need to demonstrate that the data originally 
collected to determine the suitability of a specific reactor type to be 
constructed and operated at a specific location supports the 
suitability of the site for some as-yet-unspecified design. The 
certified designs and contemplated designs provide a range of depths of 
embedment and implications for hydrological radionuclide transport. In 
addition, the applicant needs to demonstrate that the data collected 
more than 20 years ago for example is still relevant, given the current 
knowledge of regional seismic activity, current data collection and 
analytical methods, and that the acceptance criteria of the previous 
licensing action are still relevant. There have been advances in the 
knowledge of seismic activity in the United States and how ground 
motion propagates from the seismic source to the site, particularly in 
seismic source zones such as the New Madrid and the Wabash Valley 
regions in the Midwest. There have been changes in the state-of-the-art 
techniques for performing subsurface investigations, (e.g., cone 
penetrometer testing and suspension logging inside one of the deep 
boreholes rather than across two boreholes). Furthermore, the reactor 
site criteria in 10 CFR part 100 were significantly revised in 1996, 
(61 FR 65176, December 11, 1996). Therefore, none of the currently 
licensed nuclear plants utilized current reactor siting criteria. The 
applicant would have to supplement the geotechnic information as 
necessary to meet the current requirements of the revised Part 100.
    The NRC would need to evaluate the geotechnical and seismic 
information against the current knowledge of regional seismic activity, 
the current data collection and analytical methods, and the current 
acceptance criteria to make its safety determination against the 
revised Part 100. Thus, even in the most favorable case, the NRC 
believes that additional information, analyses and evaluation is 
necessary to determine whether existing findings on geotechnical data 
are applicable to a proposed facility which may be constructed on the 
same footprint as a previously-approved but unconstructed facility.
    These concerns about applicability of the data for the existing 
facility and review effort would only increase if the ESP was for an 
alternate location on the site. The distance between the existing 
licensed facility (or footprint for a facility that was authorized but 
not constructed) and the proposed facility may result in differences in 
site suitability. Localized subsurface faults which were not adequately 
characterized during the previous licensing action could bring 
representativeness of the incorporated geotechnical information into 
question. There may be other differences in the characteristics of 
local subsurface materials (e.g., depth of bedrock and soil types) 
between the existing licensed facility (or footprint for a facility 
that was authorized but not constructed) and the proposed facility, 
that may render inapplicable the original data and findings with 
respect to geotechnical characteristics (or at least require 
supplementing the original data and findings).
    In the area of meteorology, the existing licensee will have 
collected data that the NRC previously determined was sufficiently 
representative of the meteorological environment for the (then 
proposed) facility. While this data will have been supplemented to a 
certain extent by data

[[Page 57388]]

collected throughout the period of operation of the facility, the type 
of data that has been collected in many cases has been reduced to a 
limited set necessary to support emergency action determinations. Also, 
as a technical matter, data collected to support the original findings 
may not be representative of current meteorological conditions at the 
proposed site. Localized changes such as changes in land use, the 
erection of new structures and the removal of existing structures, have 
the capability to significantly alter the previous characterization of 
the site's meteorology. These changes in local conditions may not be 
reflected in the licensing basis for the plant, inasmuch as they are 
unnecessary to support emergency action determinations. Furthermore, 
the meteorological data previously collected to support the existing 
facility's design may be insufficient to characterize the release 
characteristics unique to the specific design (or the envelope of 
designs) that may be built under the ESP. For example, the NRC guidance 
contains different consequence analyses, viz., elevated release versus 
ground-level release (and therefore the meteorological data necessary 
to support such analyses), depending upon whether the facility is a 
boiling water reactor or a pressurized water reactor. The application 
and review effort would only increase if the ESP was for an alternate 
location on the site. The distance between the existing licensed 
facility (or footprint for a facility that was authorized but not 
constructed) and the proposed facility may result in sufficient terrain 
differences or orientation differences to call into question the 
applicability of the meteorological data collected at the existing 
facility to a facility that may be constructed under the proposed ESP.
    In summary, prior NRC findings with respect to the characteristics 
of a site and compliance with the then-current regulatory requirements 
with respect to an existing facility, updated in accordance with 
existing requirements and practices, does not ensure that the data is 
sufficiently accurate and comprehensive to support a current ESP siting 
determination. Thus, the petitioner's proposal to extend the concept of 
a ``current licensing basis'' in the manner contemplated by its 
proposed Sec.  52.16 is technically inappropriate.
    The NRC also believes that the petitioner's proposal would 
essentially extend the Backfit Rule to situations for which the 
policies underlying the Backfit Rule are not applicable. The Backfit 
Rule was intended to address a licensee's expectation of regulatory 
stability. A licensee expects that the terms and conditions of the 
licensee's authority under a license will not be changed after the NRC 
has issued the license, except as permitted in the Backfit Rule. The 
Backfit Rule established regulatory criteria to be used by the NRC in 
evaluating the application to existing facilities of proposed new and 
changed regulatory requirements and changes in NRC interpretations and 
findings with respect to compliance with those requirements.
    An ESP applicant, albeit one that already possesses a construction 
permit or operating license at the site for which an ESP is being 
sought, has no regulatory expectation that the NRC's determination of 
whether the application complies with applicable regulatory standards 
would be constrained by the ``current licensing basis'' for the 
earlier-issued construction permit or operating license at the site. An 
ESP application, submitted years after the issuance of the construction 
permit or license for an existing facility on the site, cannot 
reasonably be viewed as implicating the ``regulatory stability'' 
concept underlying the current Backfit Rule. The NRC further notes that 
the petitioner's proposal would also permit an ESP applicant that does 
not have a construction permit or license at the site to reference and 
treat as resolved the ``current licensing basis'' of another licensee's 
facility located at the proposed ESP site. Again, under current 
regulatory practice the ESP applicant does not have any reasonable 
expectation of regulatory stability with respect to its new 
application, inasmuch as the NRC has not taken any licensing action for 
the ESP applicant with respect to a facility located at that site.
Summary of Denial of Petitioner's ESP Proposal
    In summary, most of the efficiencies and regulatory stability and 
predictability which are the object of the petitioner's proposal can be 
achieved under existing regulations and the guidance that the 
Commission has directed the staff to prepare. In addition, key aspects 
of the petition are based on a misapplication of the ``current 
licensing basis'' concept and the Backfit Rule, and the petition does 
not represent a viable approach for achieving the desired efficiencies. 
For these reasons, the Commission is denying the ESP proposal as set 
forth in the petition.

Combined Licenses

    According to the petitioner's proposal, a COL applicant for a 
facility to be located at a site with a currently licensed facility \3\ 
and a COL applicant who holds a facility license at another site, may 
incorporate by reference the siting information described in proposed 
Sec.  52.16 from the ``current licensing basis'' of the currently 
licensed facility. The incorporation would be subject to the 
requirements in proposed Sec.  52.16. See proposed Sec.  52.80(a). In 
addition, a COL applicant for a facility to be located at a site where 
the COL applicant currently holds a facility license, and a COL 
applicant who holds a facility license at another site, may incorporate 
by reference the information required to address certain NRC 
requirements. These ``programmatic requirements,'' which are delineated 
in proposed Sec.  52.80(b), include: (1) Emergency preparedness plans 
under Sec.  50.33(g) and compliance with the emergency preparedness 
provisions of 10 CFR part 50, appendix E; (2) physical security plans 
under 10 CFR 50.34(c) and safeguard contingency plans under Sec.  
50.34(d); (3) the quality assurance (QA) program under Sec.  
50.34(f)(3)(iii); and (4) the managerial plan for design and 
construction activities under Sec.  50.34(f)(3)(vii). The COL applicant 
would have to supplement the incorporated information to the extent 
that there are new regulations. See proposed Sec.  52.80(b)(1).
---------------------------------------------------------------------------

    \3\ The petitioner's proposal would, by its terms, permit an 
applicant to seek a COL at a site with a facility whose license is 
not held by the applicant.
---------------------------------------------------------------------------

    The bases for evaluating the acceptability of the COL application 
would be established, in part, by the siting and programmatic 
information for which the applicant proposes to incorporate by 
reference from the ``current licensing basis'' of an existing licensed 
facility located at the same site or another site owned or operated by 
the COL applicant. See proposed Sec.  52.80(b). The information 
incorporated by reference that need not be supplemented in accordance 
with Sec.  52.16(b) or (c), or Sec.  52.80(b)(1), would be treated as 
resolved, unless the NRC complies with the Backfit Rule. See proposed 
Sec.  52.16(d). The information incorporated by reference that must be 
supplemented under Sec.  52.16(b) or (c), or Sec.  52.80(b)(1) would be 
subject to NRC review and approval, and the Backfit Rule would not 
apply.

[[Page 57389]]

Use of Information From Prior Licensing Actions
    The petitioner's proposals to give prior NRC staff regulatory 
determinations and NRC adjudicatory decisions preclusive effect in 
subsequent COL proceedings are apparently rooted in a desire to 
maximize regulatory efficiency and predictability. The Commission 
shares the petitioner's desire that the regulatory processes for review 
and approval of COLs be fair and efficient and maximize regulatory 
stability and predictability. Clearly, the nature of review of a 
program for a new facility, which is based, in whole or in part, on a 
program currently being implemented at a licensed facility, should be 
different in approach than where the NRC is reviewing the adequacy of 
the program for the first time. Moreover, the Commission also 
recognizes that the context in which programs are reviewed for a new 
plant is fundamentally different than when currently licensed plants 
were being reviewed and licensed. The regulatory standards and review 
criteria for many existing plants were being developed for the first 
time or were evolving concurrently with the original licensing of those 
plants. The NRC's review of the adequacy of an operating license 
applicant's proposed operational programs occurred without extensive 
operational experience or data, and therefore, took conservative 
approaches to predicting the efficacy of such programs. Today, however, 
the NRC has the benefit of a body of regulatory requirements developed 
over a 45-year time span, and substantial experience and knowledge 
collected over 40 years on over 100 plants with thousands of reactor-
years of operation. The Commission believes that the licensing review 
process can take advantage of this body of information and experience 
to focus the NRC's review of COL applications when the application 
references an existing program currently being implemented at another 
nuclear power plant. Indeed, there are substantial regulatory 
advantages where an applicant proposes to implement an existing proven 
program at a new plant, if the applicant demonstrates that such 
reliance is appropriate and technically justified. A mature program is 
likely to have been revised to reflect corrective actions and lessons 
learned. Application of such a program to a similar situation at a 
different nuclear power plant may be preferable to developing and 
implementing a completely new, untested program. This approach would 
likely avoid the need for overly conservative program elements to 
compensate for unknowns and unproven assumptions or correcting errors 
in ineffective programs.
    Therefore, the Commission expects that the licensing review for 
COLs that rely upon existing programs at other plants will draw upon, 
and be informed by, the body of information associated with that 
program's approval and implementation over the years, so that review 
will be focused on technical and legal (or regulatory) issues of merit, 
and the review will avoid re-review of matters for which there does not 
appear to be significant new information or technical considerations. 
In such cases, the NRC's review should be focused on determining 
whether (1) there is significant new information on relevant issues; 
(2) there are new methodologies or techniques for complying with 
relevant regulatory requirements, developed since the original program 
review and approval, which are now accepted as the ``industry norm'' 
for complying with that requirement; and (3) the relevant regulatory 
requirements governing the evaluation and approval of that program have 
changed since the earlier review and the existing program was not 
required to comply with the updated requirements. The Standard Review 
Plan (SRP) contains the staff's acceptance criteria that would be used 
in reviewing new applications, including COLs. The Commission has 
directed the staff to develop criteria for review of COL applications 
when the application references programmatic information from another 
license.\4\ The Commission believes that the SRP, together with the 
review guidance to be developed, will provide the licensing discipline 
necessary to ensure that the NRC's review of COL applications is 
appropriately focused.
---------------------------------------------------------------------------

    \4\ The COL guidance will use the same ESP criteria for 
assessing siting information developed in an earlier licensing 
proceeding, as described in the section on ESPs.
---------------------------------------------------------------------------

    In addition, the Commission reiterates that prior adjudicatory 
holdings on matters of law have precedential weight in subsequent 
adjudicatory proceedings, and that there may be occasions where res 
judicata and collateral estoppel may be applied in a COL proceeding to 
avoid relitigation of claims and issues raised by the same parties in 
an earlier proceeding. However, for the reasons discussed in the 
context of ESPs, the Commission does not believe that res judicata or 
collateral estoppel would provide a legal basis for the petitioner's 
rulemaking proposals on COLs.
Misapplication of ``Current Licensing Basis'' Concept and the Backfit 
Rule
    As with the ESPs, the Commission expects practical efficiencies may 
be realized from using previously filed information. However, the 
petitioner's proposal to treat such information as resolved does not 
represent a viable approach. The fundamental objective of the 
petitioner's proposal, viz., resolution of issues and regulatory 
standards in a COL proceeding referencing an earlier licensing 
decision, appears to be based on a misapplication of the ``current 
licensing basis'' concept and backfitting. The ``current licensing 
basis'' concept was intended only to apply to renewal of a license for 
a nuclear power plant. It was not intended, and has no regulatory 
meaning, in the context of licensing another separate and unrelated 
facility that may be located at the same site--much less a separate 
facility located at a different site. Moreover, with respect to 
information on compliance with programmatic requirements which may be 
incorporated by reference, proposed Sec.  52.80(b) does not require the 
COL applicant to demonstrate that the programmatic information is 
relevant and technically applicable to the proposed COL site and 
facility.\5\ For example, under the petitioner's proposal, an applicant 
referencing an emergency plan from a licensee-owned facility located at 
a different site need not demonstrate that the siren alerting system 
for the referenced plant would be effective at the COL site. Thus, the 
petitioner's proposal to extend the ``current licensing basis'' concept 
in the manner contemplated by its proposed Sec.  52.80 is not 
acceptable.
---------------------------------------------------------------------------

    \5\ This may have been a drafting error on the part of NEI, 
which could be corrected by including a provision in the proposed 
Sec.  52.80 requiring the COL applicant to demonstrate that the 
programmatic information from the referenced site and facility is 
relevant and technically applicable to the proposed COL site and 
facility. However, inclusion of such a provision would not address 
the other concerns with respect to ``current licensing basis,'' 
backfitting, and regulatory effectiveness.
---------------------------------------------------------------------------

    In addition, the NRC does not believe that programmatic information 
for an existing facility, even if that information was routinely 
updated in accordance with the NRC's regulatory requirements (e.g., 10 
CFR 50.71(e) and 10 CFR 50.59) and oversight activities, may simply be 
``imported'' and used at a new facility either at the same site (or a 
different site). In general, it is unlikely that such wholesale 
``importation'' of programmatic information without change or 
supplementation to reflect the new facility and its location can be 
justified without NRC evaluation of the

[[Page 57390]]

acceptability of the information with respect to the specific 
characteristics and location of the proposed facility. The NRC examined 
three programmatic areas to determine whether programmatic information 
for an existing facility may be used without change or supplementation 
at a different facility, in order to avoid repetitive NRC review and 
approval: (1) Physical protection, (2) emergency preparedness, and (3) 
quality assurance (QA).
    Proposed Sec.  52.80(c) would provide issue resolution for all or 
part of the physical security and safeguards contingency plans 
(including compliance with the provisions of 10 CFR part 73 under Sec.  
50.34(c) and Sec.  50.34(d)), which would be incorporated by reference 
either from an already licensed facility at the site for the proposed 
COL or from a facility at another site whose license is held by the COL 
applicant. However, the adequacy of physical protection commitments for 
a nuclear power reactor depends on the design of the plant, the nature 
of the site, the location and configuration of the plant on the site 
(including its proximity to other structures), and the physical 
characteristics of the surrounding land. Adding a new facility to an 
existing site--even if located on the footprint of a previously 
approved but never built facility--would necessitate a reevaluation of 
the existing physical security plan and the safeguards contingency plan 
to determine if the proposed facility meets the eight elements of 
physical security in Sec.  73.55 and the five categories of information 
for the safeguards contingency plan in appendix C to part 73.\6\ For 
example, the existing physical barriers on the site would need to be 
evaluated to assure that there are two physical barriers of the 
appropriate size in place for the vital area of the proposed facility. 
With respect to the physical security organization, the NRC would 
evaluate whether the guard force is sufficient to perform their 
assigned duties and responsibilities for both the existing and proposed 
facility. Thus, it is unlikely that programmatic information on 
safeguards and security for an existing facility could be used without 
change or supplementation at a different facility, with a concomitant 
need for NRC review and approval of that safeguards and security 
program.
---------------------------------------------------------------------------

    \6\ The NRC notes that a proposed facility located on a site 
with an existing facility could adversely affect the adequacy of the 
existing facility's physical security and safeguards contingency 
plans. However, unlike the provisions in proposed Sec.  52.16(b)(1) 
and (4), Sec.  52.80 would not require the COL applicant to address 
the impacts of the proposed facility on the existing facility, 
including cumulative impacts.
---------------------------------------------------------------------------

    Proposed Sec.  52.80(c) would provide issue resolution for all or 
part of an emergency plan (including compliance with 10 CFR part 50, 
appendix E, and the requirements for the size and configuration of 
emergency planning zones under Sec.  50.33(g) and Sec.  
50.34(b)(6)(v)), which would be incorporated by reference either from 
an already licensed facility at the site for the proposed COL or from a 
facility at another site whose license is held by the COL applicant. If 
the COL applicant referenced an emergency plan for a facility at the 
site for which the COL would be issued, the NRC believes that the 
addition of a new facility could have a bearing on whether the existing 
plans meet the 16 planning standards in 10 CFR 50.47. In addition, the 
NRC must evaluate the impacts of the proposed facility on the existing 
facility, as well as any impact the existing facility would have on the 
proposed facility. The design of the facility determines the type and 
severity of accidents which need to be addressed by the emergency plan. 
If the new facility used a different design than the existing facility, 
the existing emergency plan would need to be evaluated to determine 
whether it can accommodate the type and severity of accidents 
associated with the new facility, or whether new provisions (e.g., 
emergency action levels tailored to the particular accident sequences 
of the proposed COL facility) are necessary. If the plan cannot 
accommodate the accidents, the plan would have to be supplemented. For 
example, with respect to emergency planning zones (EPZs), the NRC would 
have to determine whether the specific location and configuration of 
the proposed facility would lead to some adjustment to the existing 
EPZ. Furthermore, the protective actions associated with the EPZs may 
not be appropriate for a different design and radioactive inventory 
associated with the proposed facility. For a COL applicant who 
references an emergency plan from another site, a new EPZ would have to 
be developed inasmuch as the existing facility's EPZ could not be used 
at the COL site. The NRC would also have to identify and consider any 
differences between the existing site and the proposed COL site in 
order to determine whether the existing emergency plan meets the Sec.  
50.47(b) planning standards. Therefore, the Commission does not believe 
that emergency planning information for an existing facility could be 
used at a different facility without change or supplementation, and a 
concomitant need for NRC review and approval of that emergency planning 
information.
    Proposed Sec.  52.80(c) would provide issue resolution for all or 
part of a QA program (including compliance with the provisions of 
appendix B to part 50, under Sec.  50.34(b)(6)(ii), Sec.  
50.34(f)(3)(i), Sec.  50.34(f)(3)(ii) and Sec.  50.34(f)(3)(vii)), 
which would be incorporated by reference either from an already 
licensed facility at the site for the proposed COL or a facility at 
another site whose license is held by the COL applicant. The 
petitioner's proposal does not distinguish between construction and 
operation. Operational QA programs cannot be used for design and 
construction of a new facility because the scope and nature of 
activities performed during construction are different than during 
operation. A construction QA program focuses on design, procurement, 
fabrication and construction, whereas an operational QA program focuses 
on maintenance, modification, and operation. Furthermore, the QA 
organization is different for construction than for operation because a 
construction QA program relies heavily on an architect-engineer and an 
operational QA program relies on licensee personnel. If the COL 
applicant intended to rely on a construction QA program which it used 
in construction of an existing facility (either on site or at another 
site), an extended period of time might have elapsed since the major 
provisions of that construction QA program had been utilized. Thus, the 
construction QA program might not address the design, procurement, 
fabrication and construction activities that the COL applicant proposes 
to use in the construction of the proposed facility. Moreover, 
applicable industry standards and practices for construction QA have 
evolved, so that the NRC may not consider the original construction QA 
programs to be acceptable for constructing a new facility. For example, 
American Society of Mechanical Engineers (ASME) NQA-1, ``Quality 
Assurance Program Requirements for Nuclear Facilities,'' which was 
referenced in the construction QA programs for many existing plants, 
has undergone numerous revisions since the 1970s editions. Since the 
original endorsement of these industry standards, the NRC has withdrawn 
its endorsement of several quality standards as more effective 
standards developed by industry groups became available. Accordingly, 
any construction QA program that was used for an existing facility 
could not be used

[[Page 57391]]

at a new facility without substantial change, and concomitant need for 
NRC review and approval of those changes.
    With respect to operational QA, the NRC would need to review the 
existing operational QA program to assure the licensee's commitments in 
the QA program area are applicable to the proposed facility. The 
adequacy of QA program elements depends upon facility design, 
fabrication and construction technologies, and how systems, structures, 
and components (SSCs) and services are procured. For example, modular 
construction, in which portions of the plant are prefabricated off 
site, transported to the site, and integrated into the portions of the 
plant constructed on site, will likely involve different QA programs, 
procedures, and considerations than those for (current generation) 
plants constructed entirely on site. Another example is the use of SSCs 
which are procured from sources outside the United States. These 
components may be manufactured, tested, and qualified to different 
standards than the standards of the COL applicant's construction QA 
program. While there may not be the need to make substantial changes to 
an operational QA program at an existing plant, the Commission believes 
that an operational QA program could not be used with some changes or 
supplementation. Those changes or supplementation would need to be 
reviewed and approved by the NRC.
    Based upon the review of these three areas, the NRC does not 
believe that it is technically possible to apply programs such as 
physical protection, emergency preparedness, and QA from another 
facility to a proposed COL without evaluation and consideration of the 
acceptability of the information with respect to the specific 
characteristics and location of the proposed facility.
    The NRC also believes that the petitioner's proposal would 
essentially extend the Backfit Rule to situations for which the 
policies underlying the Backfit Rule are not applicable. A COL 
applicant simply can have no reasonable regulatory expectation that the 
NRC's determination of whether the application complies with applicable 
regulatory standards would be constrained by the ``current licensing 
basis'' for a previously licensed facility at that site. This is even 
more true for a COL applicant referencing a previously licensed 
facility at a different site.
Summary of Denial of Petitioner's COL Proposal
    Most of the efficiencies and regulatory stability and 
predictability which are the object of the petitioner's proposal can be 
achieved under existing regulations and the guidance that the 
Commission has directed the staff to prepare. In addition, several key 
aspects of the petition are based upon a misapplication of the 
``current licensing basis'' concept and the Backfit Rule, and the 
petition does not represent a viable approach for achieving the desired 
efficiencies. For these reasons, the Commission is denying the COL 
proposal as set forth in the petition.

NRC Regulatory Activities as Precedents for Petitioner's Proposal

    The petitioner cites several examples of NRC's practice to support 
the petition. The NRC does not believe that these examples are valid 
precedents for the petitioner's proposals. Each of these examples is 
addressed below.
License Renewal
    The petitioner suggests that its proposal is consistent with the 
regulatory concepts underlying the Commission's adoption of Parts 51 
and 54 for license renewal of power reactors. See petition at p.7.
    As discussed in the ESP section of the Reasons for Denial, the NRC 
disagrees with the petitioner's analogy.
License Amendments
    The petitioner compares the issuance of an ESP to the issuance of a 
license amendment for a facility, and argues that the NRC does not 
conduct a fresh assessment of issues that were thoroughly considered in 
initial licensing of that facility and that are not affected by the 
proposed amendment. See petition at pp.7-8.
    Contrary to the petitioner's suggestion, an application for an ESP 
or a COL is not analogous to a license amendment. After the NRC 
licenses a facility, the safety and environmental findings made when 
NRC initially authorized the facility's construction and operation 
remain effective throughout the term of the license, and need not be 
revisited in their entirety in a subsequent license amendment 
proceeding of limited scope. Only those matters which are within the 
scope of the proposed license amendment and, therefore, are affected by 
the amendment, fall within the scope of the NRC's consideration of the 
license amendment.
    The NRC's review of an ESP or COL application is the NRC's initial 
licensing action. As suggested in the earlier discussion on 
backfitting, the NRC's licensing decision for a facility located on a 
specific site is limited to that facility. The NRC never envisioned 
that its licensing decision for that facility would have any regulatory 
significance years later for either a new, separate facility (likely of 
different design) located at the same site, or a new, separate facility 
to be located at an entirely different site.
Table S-3 and Spent Fuel Storage Casks
    The petitioner states that the Table S-3 generic environmental 
rulemaking and the rulemakings approving spent fuel storage casks are 
regulatory precedents for making generic findings by rulemaking, and 
thereby reducing the scope, or eliminating the need for consideration, 
of matters in a facility-specific hearing.
    The NRC does not regard these rulemakings as analogous to the 
proposed Sec. Sec.  52.16 and 52.80. In the Table S-3 rulemakings, the 
Commission made generic environmental findings which were applicable to 
all light-water-cooled nuclear power plants. In every spent fuel 
storage cask rulemaking, the Commission made generic safety and 
environmental findings which were applicable to every spent fuel 
storage cask constructed in accordance with the specific cask design 
approved in that rulemaking. Moreover, each cask design was reviewed 
and approved by the Commission through the rulemaking for generic use 
across the United States. By contrast, the NRC licensing 
determinations, which petitioner's proposals would permit an ESP and 
COL applicant to reference, are not generic but are limited solely to a 
consideration of an applicant's proposals and relevant information 
available at the time of the proposal. Nor did the NRC approve the 
applicant's proposals with the understanding, and notice to the public, 
that they would be deemed by rule to be acceptable in a subsequent 
licensing proceeding for a different facility, without a requirement 
that their suitability for use in the subsequent licensing action be 
assessed.
Quality Assurance and Facility Procedure Change Process
    The petitioner cites the quality assurance (QA) program change 
process under Sec.  50.54(a)(3)(ii), and the facility and procedure 
change process under Sec.  50.59(a)(2)(ii) as examples of situations in 
which the NRC by rule permits a licensee to implement changes that have 
been previously approved by the NRC for use by other licensees. See 
petition at p.8.
    While the NRC acknowledges that these two regulatory provisions 
permit a licensee to implement changes that have been previously 
approved by the NRC

[[Page 57392]]

for use by other licensees, these provisions both require that the 
licensee demonstrate that the proposed change previously approved by 
the NRC is applicable to the licensee's facility. For example, Sec.  
50.54(a)(3)(ii) requires a licensee desiring to make a QA program 
change to demonstrate that ``the bases of the NRC approval are 
applicable to the licensee's facility.'' Such a demonstration is not 
required by proposed Sec.  52.80(b). Therefore, the petitioner's 
analogy to the implementation of changes without prior NRC approval is 
not valid for original licensing proceedings.

Conclusion

    In conclusion, the petitioner proposes to incorporate by reference 
existing information for the site and, by so doing, eliminate the need 
for what it believes is duplicate applicant preparation and NRC review 
of existing information relating to a licensed facility that has been 
previously approved by the NRC and has been subject to a public 
hearing. The Commission is denying the petition because most of the 
efficiencies and regulatory stability and predictability which are the 
object of the petitioner's proposal, can be achieved under existing 
regulations and the guidance that the Commission has directed the staff 
to prepare. In addition, key aspects of the petition are based on a 
misapplication of the ``current licensing basis'' concept and the 
Backfit Rule, and the petition does not represent a viable approach for 
achieving the desired efficiencies.
    For these reasons, the Commission denies the petition.

    Dated at Rockville, Maryland, this 26th day of September, 2003.

    For the Nuclear Regulatory Commission.
Annette Vietti-Cook,
Secretary of the Commission.
[FR Doc. 03-25094 Filed 10-2-03; 8:45 am]
BILLING CODE 7590-01-P