[Federal Register Volume 73, Number 75 (Thursday, April 17, 2008)]
[Notices]
[Pages 20963-20973]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-8272]
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NUCLEAR REGULATORY COMMISSION
Conduct of New Reactor Licensing Proceedings; Final Policy
Statement
AGENCY: Nuclear Regulatory Commission.
ACTION: Final policy statement.
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SUMMARY: The Nuclear Regulatory Commission (NRC or the Commission) is
adopting a statement of policy concerning the conduct of new reactor
licensing proceedings.
DATES: This policy statement becomes effective April 17, 2008.
FOR FURTHER INFORMATION CONTACT: Robert M. Weisman, Senior Attorney,
U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001,
telephone 301-415-1696, e-mail [email protected].
SUPPLEMENTARY INFORMATION: On June 11, 2007 (72 FR 32139), the
Commission published in the Federal Register a request for public
comment on the draft statement of policy on Conduct of New Reactor
Licensing Proceedings (draft Policy Statement). The Commission received
eight letters transmitting comments on the draft Policy Statement by
the deadline set in the June 11, 2007, notice for receipt of comments.
Commenters included a law firm (Morgan Lewis on behalf of five energy
companies), a lawyer (Diane Curran), two advocacy groups, (Beyond
Nuclear/Nuclear Policy Research Institute (BN/NPRI) and the Union of
Concerned Scientists (UCS)), an industry organization (the Nuclear
Energy Institute (NEI)), a vendor (GE-Hitachi Nuclear Energy), and one
individual energy company (UniStar Nuclear)(two letters). BN/NPRI
endorsed Ms. Curran's comments, and UCS incorporated them by reference
in the UCS comments. Similarly, GE-Hitachi and UniStar endorsed the NEI
comments.
The comments fell primarily in the following three categories.
First, many comments related to 10 CFR 2.101(a)(5), which permits an
applicant to submit its application in two parts filed no more than
eighteen months apart. The comments were primarily concerned with
whether the NRC should issue a Notice of Hearing (required by 10 CFR
2.104) for each part of the application or just one Notice of Hearing
when the application is complete. Second, many comments related to the
NRC's consideration of applications that propose to build and operate
reactors of identical design (except for site-specific elements). The
comments addressed the implementation of the ``design-centered review
approach'' in the NRC Staff's (Staff) review of the applications and
the adjudicatory proceedings on the applications before the Atomic
Safety and Licensing Board (Licensing Board). Third, many comments
requested rulemaking to implement a variety of measures that the
commenters believe desirable or necessary for the effectiveness or
efficiency of the review or adjudicatory processes. Below, the
Commission summarizes and responds to the comments beginning with these
three categories of comments. Discussion of additional comments
follows. In response to the comments, the Commission has revised the
policy statement in several respects, as noted below. The Commission
has also corrected the Policy Statement or added explanatory text in a
few instances.
[[Page 20964]]
Comments on Notice of Hearing
Comment: The Commission should modify the final Policy Statement to
provide that the NRC will issue a Notice of Hearing for the complete
partial Combined License Application (hereinafter COLA) ``as soon as
practicable'' after the NRC dockets that portion of the COLA, unless
the applicant affirmatively requests that the Notice of Hearing be
issued after the entire COLA is docketed. (NEI 2, Morgan Lewis 1,
UniStar 1)
The commenters state that the approach they suggest will lessen the
burdens on all parties. Specifically, these commenters submit that a
Notice of Hearing should be issued upon the docketing of the first part
of an application submitted under 10 CFR 2.101(a)(5) so that the
hearing on that portion of the application may be completed sooner,
thus providing an applicant the opportunity to shorten the critical
path for the licensing proceeding. These commenters also state that the
proposed approach ``smoothes'' peak resource demands for all parties,
provides for earlier public participation, would not call for different
NRC staff support or different Staff or Licensing Board reviews,
minimizes the likelihood of potential new issues arising late in the
review process, would not affect any person's substantive rights, and
is consistent with the NRC intent to publish a separate Notice of
Hearing on a request for a limited work authorization (LWA). Further,
these commenters indicated that docketing one part of an application
and then waiting up to 18 months to issue the Notice of Hearing cannot
be considered to result in issuing the notice ``as soon as
practicable'' after docketing, as required by 10 CFR 2.104(a). These
commenters also state that the draft Policy Statement approach of
normally issuing only one Notice of Hearing appears to ignore NRC
precedent for adjudication of safety and environmental issues on
separate hearing tracks. One commenter states that issuing separate
notices focuses all parties on results, not process, while another
asserts that the draft Policy Statement, as written, discourages early
application submission and causes delay in the licensing process.
UniStar bases its comments on its plans to submit the environmental
portion of its COL application first, in accordance with Sec.
2.101(a)(5), and provides the following additional comments. UniStar
believes issuing a Notice of Hearing in connection with the first part
of the application docketed provides an earlier opportunity for public
participation on environmental matters, offers the Staff an early
opportunity to consider and address environmental issues unique to
COLs, and lessens the potential for the NRC environmental review to be
``critical path'' for the UniStar application.
NRC Response: The NRC does not believe that an overall benefit can
reasonably be predicted to derive from issuing separate Notices of
Hearing for separate portions of applications filed pursuant to 10 CFR
2.101(a)(5). The assertion that issuing two Notices of Hearing will
provide an applicant the opportunity to shorten the critical path for a
licensing proceeding is speculative. The nature and complexity of
contentions that may be raised with respect to the safety and
environmental aspects of any application may vary considerably.
Moreover, while an earlier, separate Notice might be advantageous to an
applicant by allowing potential intervenors to raise their concerns
early and thus allow the applicant more time to consider the gravity of
those concerns and provide information to the staff to address them, if
appropriate, we do not believe those possible advantages overcome the
inefficiencies that could be introduced into the NRC's internal review
and hearing processes as well as the potential burden on the resources
of the advocacy community to monitor and respond to multiple Notices of
Hearing.
Industry commenters assert that issuing separate notices would not
impair the substantive rights of any party, and is consistent with the
practice established in the LWA rule and previous licensing
proceedings. The Commission agrees that no person's substantive rights
would be impaired if either a single Notice of Hearing is issued on a
complete application, or if two such notices are issued on parts of an
application submitted under 10 CFR 2.101(a)(5). In this respect, the
two procedures are equivalent. However, in the case of a request for an
LWA, there is a clear potential benefit--issuance of an LWA to permit
an applicant to begin certain safety-related construction activities
before a COL is issued--not just a more nebulous ``smoothing'' out of
resource demands, to balance against the potential negative impacts
noted above.
The industry commenters point to a proceeding in which a Notice of
Hearing was issued for a single part of an application relating solely
to antitrust matters. See Pacific Gas & Electric Co. (Stanislaus
Nuclear Project, Unit 1), LBP-83-2, 17 NRC 45, 47 (1983). The
requirements of 10 CFR 50.33a that applied in that proceeding, however,
explicitly required submission of antitrust information in advance of
the rest of the application, presumably because litigation of antitrust
matters before the Licensing Boards were virtually always the
lengthiest portion of a licensing proceeding. See 10 CFR 50.33a (1983).
As described above, that rationale does not apply here. Similarly, the
fact that in some proceedings safety and environmental matters were
considered on separate tracks, based on the admitted contentions, does
not present a rationale for issuing separate Notices of Hearing for
such matters. Specifically, hearings on admitted safety and
environmental contentions may proceed on separate tracks, if the
presiding officer finds that this is warranted. The advantages derived
from establishing such separate hearing tracks can be obtained without
issuing separate notices for each part of an application submitted
under Sec. 2.101(a)(5).
Accordingly, the Commission does not support issuing a separate
Notice of Hearing on each part of an application filed under 10 CFR
2.101(a)(5). With respect to the additional issues UniStar raises that
are unique to its application, and which are summarized above, the
Commission does not believe it appropriate to address such application-
specific concerns in responses to comments on a generally applicable
policy statement such as this one. The comments do not warrant changes
in the Policy Statement.
Comment: Why not, in the name of efficiency and fairness, wait
until the application process is complete before holding a hearing--one
hearing--on a completed design and completed application for a specific
reactor site? (UCS 1, Curran 2). The Commission has previously
recognized the unfairness of piecemeal litigation governed by a license
applicant's indecision about whether to pursue a project. The
Commission should redraft its policy statement to ensure that COL
hearings will be conducted in a manner that is fair to all parties
(Curran 4).
In essence, the commenter is objecting to the Commission's proposal
to consider exemptions to the requirements of Sec. 2.101 if the
granting of such exemptions will further the design centered review
approach. The commenter indicates that such exemptions will result in
issuing two rather than one Notice of Hearing on each complete
application, and will overtake the Commission's stated intention to
issue just one Notice of Hearing on each complete application in the
absence of the advantages of the design centered review approach. The
[[Page 20965]]
commenters indicate that under the design-centered approach,
intervenors will be forced to participate in ``abstract'' proceedings
in order to protect their rights, and that this will waste the
intervenors' resources. Further, the commenters assert that such
proceedings may subject them to abusive litigation tactics, since an
applicant could request consideration of one design pursuant to an
exemption from Sec. 2.101(a)(5), and then drop that design in favor of
another upon filing the remaining portion of the application. They
conclude that potential intervenors will not be able to prioritize the
most important issues that should be raised with respect to a proposed
new plant on a particular site.
NRC Response: The commenters misapprehend the effect of an
exemption from Sec. 2.101 that would further the design-centered
review approach. Such an exemption would not result in an ``abstract''
application. Rather, the applicant would, in its application, request
approval to construct and operate a particular facility at a particular
site. Prospective intervenors will not need to guess what plant might
be described in an application for a COL that could affect them, nor
will they need to participate in proceedings on proposed reactors that
do not affect their interests.
Further, exemptions from Sec. 2.101 in furtherance of the design-
centered review approach would not result in litigation of design
matters that an individual applicant might readily change. The point of
allowing such a procedure is to permit the Staff and the Licensing
Board to consider the standard portions of an incomplete application
submitted pursuant to an exemption from Sec. 2.101 together with other
applications involving the same design or operational information. An
individual applicant obtains the benefits of participating in such a
proceeding by relinquishing some of its ability to change that
information.
Although the Commission notes that established doctrines of repose
(res judicata, collateral estoppel) apply once an adjudication is
finally decided, prospective intervenors need not seek to participate
in proceedings unrelated to their locale by virtue of the Policy
Statement provisions discussing possible exemptions from Sec. 2.101.
With respect to the concern that an applicant might decide to
substitute one design for another in an application, modify its
proposal, or decline to complete or pursue an application, and thus
render any hearings related to those aspects of an application moot,
that possibility exists whether or not an applicant has sought an
exemption from Sec. 2.101. For example, it may become apparent during
the course of the NRC staff review that the proposed plant is not
acceptable for the proposed site. Accordingly, the Commission concludes
that these comments do not warrant changes to the Policy Statement.
The Commission notes that UCS, in connection with its comment,
identified a confusing sentence in the draft Policy Statement to the
effect that the NRC ``may give notice'' with respect to a complete
application. This sentence has been revised to read that the NRC ``will
give notice'' with respect to a complete application.
Comments on Design-Centered Review Approach
Comment: The proposed policy appears to relax or abandon the
requirement for reliance on design certifications, allowing license
applicants to depart from certified designs in license applications,
and then forcing the consolidation of hearings where the applications
appear to have something in common. In this respect, the policy seems
intended to maximize the rigidity of design certification where
intervenors' interests are at stake, and maximize flexibility where
license applicants' interests are at stake. The policy should be
consistent for both intervenors and applicants. (Curran 3, UCS 1, BY/
NPRI)
NRC Response: Part 52 has never required an applicant for a COL to
reference a certified design. Rather, a COL applicant has always had
the option of requesting a COL for a design that is not certified under
Part 52, Subpart B (a ``custom'' plant). See 10 CFR 52.79. Similarly,
Part 52 has always provided for exemptions or departures from a
certified design. See 10 CFR Part 52, Appendices A, B, C, and D,
Section VIII. The draft Policy Statement offered guidance on the effect
these provisions might have in the context of an adjudication
consolidated to take advantage of the design-centered review approach.
The design-centered review approach is an effort to encourage
applicants to adopt identical approaches to issues, which should
increase reliance on standard design certifications. Moreover, multiple
applicants could choose the same uncertified design (e.g., a gas-cooled
reactor), which the NRC could review using the design-centered
approach. This circumstance would be consistent with the Commission's
policy encouraging greater standardization, albeit not via design
certification.
With respect to whether proceedings should be consolidated, the
draft Policy Statement does not require consolidation. Rather, it
provides, among other things, that the Chief Judge of the Atomic Safety
and Licensing Board Panel (ASLBP) should do so only if consolidation
will not impose an undue burden upon the parties. Further, the draft
Policy Statement recommends that applicants and intervenors alike agree
on a lead representative. The Policy Statement does not treat
intervenors and applicants inconsistently in this regard.
Finally, the draft Policy Statement does not state that
consolidation is appropriate when ``applications appear to have
something in common.'' Rather, the Commission is suggesting that
intervenors, applicants, and the NRC alike may save and appropriately
focus resources by litigating matters relating to applications for
identical designs in consolidated proceedings. Our rules of practice
have long provided for the possibility of consolidation of issues and
parties.
Comment: Encouraging generic ``variances and exemptions'' from
certified designs and endorsing the notion that ``security''
considerations in reactor siting are ever ``identical'' from one site
to another flies in the face of the commonly accepted view that each
piece of land is unique. To encourage licensees to seek variances,
exemptions, and generic licenses based on the premise that only
components are at issue without reference to where they are located is,
in a Post-9/11 world, burying one's head in the sand. If the Commission
needs to encourage, under the guise of a policy statement, myriad
exemptions to the new Part 52 rules, the new Part 52 rules patently
need revision. (UCS 2)
NRC Response: The Commission of course recognizes that certain
aspects of security are site-specific. The Commission has not
``endorsed the notion that `security' considerations in reactor siting
are * * * `identical' from one site to another[,]'' as suggested by the
commenter. Nonetheless, certified designs include certain features or
design elements directed to security and safeguards, and these design
matters will be common at sites referencing the design certification.
The Policy Statement is focused on ``components'' in this regard
because it is focused on the design-centered approach. The Policy
Statement's focus should not be read to exclude site-specific issues
from the scope of NRC review. The Commission does not believe it is
encouraging a ``myriad'' of exemptions by this Policy Statement. The
Statement identifies limited circumstances under which an exemption to
Part 2 may be
[[Page 20966]]
entertained or granted. The regulations in Part 52 have long
accommodated the need for exemptions to design certification rules in
defined circumstances. See 10 CFR part 52, Appendices A, B, C, and D,
Section VIII.
Comment: The final Policy Statement should more clearly explain the
parameters or necessary conditions for consolidation. (NEI 3, Morgan
Lewis 4)
NRC Response: Whether separate proceedings should be consolidated
depends on their particular circumstances, and is within the discretion
of the presiding officers in the proceedings, as currently set forth in
Part 2. See 10 CFR 2.317. The draft Policy Statement adequately
explains how the design-centered review approach may be appropriately
factored into the presiding officers' decision on consolidation.
Whether two applications are sufficiently close in time to warrant
consolidation depends on the particular facts involved. No modification
to the Policy Statement is warranted.
Comment: The Commission should clarify that consolidation of
hearings on identical portions of the COL application is not required
to obtain the NRC staff's design-centered review. While the use of
Subpart D is permissible, it is not required and should not be
presumed. (NEI 4, Morgan Lewis 4)
NRC Response: The Commission believes that the Policy Statement
already makes clear that consolidation of hearings is not required to
obtain the NRC staff's design-centered review. Without consolidation of
hearings, however, some of the benefits of the design-centered review
approach may not be realized. Therefore, the Policy Statement presumes
the use of Subpart D because the Commission believes that such use will
offer benefits not otherwise available. A particular applicant's choice
not to seek the use of Subpart D will mean that such benefits will not
be available to that applicant.
Comment: The draft Policy Statement should treat COL applications
that reference applications for design certification amendments in a
manner comparable to COL applications that reference design
certifications. (Morgan Lewis 3, NEI 5)
NRC Response: The draft Policy Statement explicitly discusses
applications for design certification. The Commission believes that
discussion also encompasses an application for an amendment to a design
certification, and the Policy Statement need not be changed.
Comment: The Policy Statement should direct the Licensing Board to
deny a contention in a COL proceeding if the contention addresses a
matter subject to a design certification rulemaking, rather than
holding the contention in abeyance and denying it later upon adoption
of the final design certification rule. (NEI 6)
NRC Response: While the approach NEI suggests is consistent with
the Commission decisions cited in the draft Policy Statement, the
Commission believes that an application for design certification calls
for a different approach. An applicant for a COL may choose to pursue
its application as a custom design if, for example, the review of an
application for design certification originally referenced is delayed.
In such a case, the Commission believes it inefficient to require
previously admitted intervenors to justify, for a second time,
admission of contentions which address aspects within the scope of the
design certification rulemaking. Holding these contentions in abeyance
instead of denying them resolves this problem. Accordingly, the
Commission has determined to leave the Policy Statement unchanged in
this regard.
Comment: The Commission should clarify the statement in section B.3
of the Policy Statement that ``[i]f initial COL applicants referencing
a particular design certification rule succeed in obtaining COLs, the
Commission fully expects subsequent COL applicants to reference that
design certification rule.''
NRC Response: The Commission has clarified the sentence by stating
that if the NRC grants an initial application referencing a design
certification rule, the Commission believes it is likely that
subsequent applications referencing that rule will be filed.
Comments Relating to Rulemaking
Comment: The NRC should ensure consistency in its rules by
conforming 10 CFR 51.105, which contains mandatory findings on NEPA
matters in uncontested proceedings, to 10 CFR 2.104, which does not
specify the findings to be made. (Morgan Lewis 6)
NRC response: This proposal would involve rulemaking, which is
beyond the scope of the development of this Policy Statement. Because
this matter has been raised as a comment on this Policy Statement, the
agency is not treating the comment as a petition for rulemaking under
Sec. 2.802. If the commenter wishes the agency to undertake such a
consideration, the commenter should file such a petition. The
Commission would note that the commenter's proposed change was
considered in the development of the final Part 52 rulemaking, but was
rejected for several reasons. Such a change would have represented a
fundamental change to the NRC's overall approach for complying with
NEPA, in which the agency's record of decision consists of the
presiding officer's findings with respect to NEPA, as required by
Section 51.105. The Commission did not believe it made sense to modify
the NRC's approach in one specific situation--the issuance of combined
licenses--without considering the implications or desirability of
adopting a global change to Part 51 with respect to the agency's NEPA's
procedures. Moreover, the Commission believed that such a change in the
NRC's NEPA compliance procedures should be subject to a notice and
comment process and did not want to further delay agency adoption of a
final part 52 rule.
Comment: The NRC should revise 10 CFR 2.101(a)(5) to permit the
first part of a phased application to consist solely of the
environmental report plus the general administrative information
specified in Sec. 50.33(a) through (e). It is not necessary for the
NRC to have complete seismic and other siting information, plus
financial and emergency planning information, to review an
environmental report. (Morgan Lewis 7)
NRC response: First, this proposal would require a change to
Commission rules, which is beyond the scope of the development of this
Policy Statement. Second, with respect to the commenter's proposal that
siting (which includes seismic) information is not necessary for the
first part of a phased COL application (even if the rest of the first
part is the environmental report), the Commission does not find
persuasive this argument for omitting siting information.
The Commission requirements governing site safety are based upon
the Atomic Energy Act (AEA). The NRC's National Environmental Policy
Act (NEPA) review responsibilities do not expand its AEA authority, but
are complementary thereto. Consequently, there is no need for a NEPA
siting review absent consideration of site safety under the AEA.
Regarding site safety, the information an applicant must submit to
satisfy the requirements of 10 CFR 2.101(a)(5) addresses the
suitability of the site with respect to manmade and natural hazards
(including seismic information) and potential radiological consequences
of postulated accidents and the release of fission products.
Furthermore, the site characteristics must comply with 10 CFR part 100,
``Reactor Site Criteria.'' Additional safety elements required in a
[[Page 20967]]
siting determination include information on emergency preparedness and
security plans. Administrative information, including the protection of
sensitive information is necessary to fulfill requirements under the
AEA. The Commission considers that much of the above site safety
information may be of use in informing the Commission NEPA review.
Because the commenter's suggestion that the agency undertake
rulemaking has been raised as part of the comment process on this
Policy Statement, the agency is not treating the comment as a petition
for rulemaking under 10 CFR 2.802. If the commenter continues to
believe the agency should consider rulemaking on this matter, the
agency would suggest the commenter file such a petition.
Comment: The final Policy Statement should direct the NRC staff to
consider, on a case-by-case basis, whether generic or design-specific
issues could be addressed through rulemaking. (GE-Hitachi Nuclear
Energy 1, NEI 10)
NRC Response: The Commission does not believe that a direction to
the NRC staff to undertake rulemaking, which is an internal agency
matter, is an appropriate subject for a policy statement. The
Commission has, however, directed the NRC staff, in consultation with
the Office of the General Counsel, to consider initiating rulemakings
in appropriate circumstances to address issues that are generic to COL
applications. See SRM COMDEK-07-0001/COMJSM-07-0001--Report of the
Combined License Review Task Force (June 22, 2007) (ADAMS Accession No.
ML0717601090). Accordingly, the Commission does not see any further
benefit in duplicating this Commission direction in a policy statement.
Comment: The NRC should institute notice-and-comment rulemaking to
provide for meaningful public participation in the licensing hearing
process under Subpart L of Part 2, including full and fair discovery
procedure and cross-examination of adverse witnesses. (UCS 3)
NRC Response: The Commission does not agree that its current
requirements in 10 CFR Part 2, Subpart L, governing discovery and
cross-examination, are unfair to any potential party in an NRC
adjudication, nor does the Commission believe that Part 2 fails to
provide for meaningful public participation in the licensing hearing
process. The Commission addressed the fairness and expected benefits of
the reconstituted discovery process in Subpart L in the statement of
considerations for the final 2004 revisions to Part 2. See 69 FR 2182
(January 14, 2004) upheld by Citizens Awareness Network, Inc. v. U.S.,
391 F.3rd 338 (1st Cir. 2004). The discovery process provides for
mandatory disclosures by all parties of information relating to
admitted contentions, and Staff preparation of a hearing file.
Furthermore, cross-examination is allowed or may be allowed by the
presiding officer under those circumstances in which the Commission has
determined that cross-examination would be best-suited to result in the
timely development of a record sufficient to inform a fair decision by
the presiding officer. The commenter provided nothing other than the
generalized assertion that the new procedures are unfair or would
preclude meaningful public participation in the licensing hearing
process. Because the commenter's suggestion that the agency undertake
rulemaking has been raised as part of the comment process on this
Policy Statement, the agency is not treating the comment as a petition
for rulemaking under 10 CFR 2.802. If the commenter continues to
believe the agency should consider rulemaking on this matter, the
agency would suggest the commenter file such a petition.
Comment: The NRC should decrease the time periods in the 10 CFR
part 2 Milestone Schedules to further streamline the hearing process
and promote more timely hearings on ESP and COL applications, by (1)
decreasing the 175 day period between issuance of the SER and final EIS
and the start of the evidentiary hearing; and (2) reducing from 90 to
60 days the period for the presiding officer to issue its initial
decision following the end of the evidentiary hearing. (NEI 13)
NRC Response: The Commission does not agree that the Model
Milestones in Appendix B to 10 CFR part 2 should be modified to adopt
the two changes suggested by the commenter. The 175 day time period
provides for, among other things, scheduling and holding a pre-hearing
conference, issuance of the presiding officer's order following the
prehearing conference, mandatory disclosures, preparation of summary
disposition motions, issuance of presiding officer orders on such
motions, preparation of pre-filed written testimony, suggested
presiding officer questions based upon the pre-filed testimony, and any
motions for cross-examination together with cross-examination plans. It
may well be that, with the particular parties involved or matters at
issue in any individual case, the schedule can be shortened by the
presiding officer. But, given the activities outlined above, the
Commission does not believe that the 175 day period is unreasonable or
should be significantly shortened at this time.
The Commission believes that the 90 day period provided for
issuance of a presiding officer decision is reasonable, given the
likelihood--as described above--that the first set of combined license
application hearings may be complex and raise issues of first
impression for the NRC. If, however, the issues to be addressed in an
initial decision are small in number, simple in nature and lack
complexity, enabling the presiding officer to issue the initial
decision in a shorter period of time, the Commission expects the
presiding officer to do so rather than taking the full 90 day period.
The Commission also notes that the Model Milestones were adopted on
April 20, 2005 (70 FR 20457), and have yet to be applied in full in any
early site permit or combined license proceeding. Hence, the NRC has
yet to develop any extensive experience on their application in such
proceedings. Absent some fundamental problem or error with the Model
Milestones--which the commenter has not described--the Commission is
unwilling to modify the Model Milestones at this time. Once the
Commission has had greater experience with the conduct of combined
license application hearings, the Commission will revisit the Model
Milestones to see if adjustments are desirable or if a specific
schedule of milestones should be established for early site permit and
combined license proceedings. Because the commenter's suggestion that
the agency undertake rulemaking has been raised as part of the comment
process on this Policy Statement, the agency is not treating the
comment as a petition for rulemaking under 10 CFR 2.802. If the
commenter continues to believe the agency should consider rulemaking on
this matter, the agency would suggest the commenter file such a
petition.
Other Comments
Comment: The provisions in the draft Policy Statement (in Section
B.1) regarding the finality of COL proceedings should be revised to be
consistent with a recent decision by the U.S. Court of Appeals in which
the Seventh Circuit held that if all of an intervenor's contentions are
resolved by the Licensing Board, then the Board's decision is final
agency action with respect to that intervenor. (Morgan Lewis 5)
NRC Response: The Commission agrees that the draft Policy Statement
could be misinterpreted on this score. Accordingly, the Commission has
modified the pertinent provision of the
[[Page 20968]]
Policy Statement to state that ``a decision on common issues would
become final agency action if it resolves a specific intervenor's
contentions in a proceeding on an individual application.''
Comment: It is not an insubstantial change in the rules to now
state the Commission, presiding officer on any request for hearing
filed under Sec. 52.103, will, by fiat, ``designate the procedures
under which the proceeding shall be conducted.'' A bit of rulemaking
might be in order well before commencement of extraordinary hearings
before the Commission. (UCS 1A) NEI recommends that the NRC identify
the hearing procedures to be used in the 10 CFR 52.103(a) ITAAC
compliance hearings in the near term and certainly well before the
first such hearing is imminent. (NEI 8)
NRC Response: Section 189a.(1)(B)(iv) of the Atomic Energy Act
explicitly authorizes the Commission to establish procedures for ITAAC
compliance hearings. This AEA provision has been reflected in
Commission rules since 1992. ITAAC compliance hearing procedures
warrant in-depth consideration, which would unduly delay the issuance
of the Policy Statement. The Commission believes it appropriate to
first issue guidance on proceedings on COL applications, which are
indeed imminent, before turning to ITAAC compliance hearings. While the
Commission is not addressing ITAAC compliance hearing procedures in
this Policy Statement, the Commission intends to do so ``well before''
the first such hearing, as both intervenor and industry commenters
request. The Commission, however, does not believe it necessary to
establish such procedures by rule, and retains the discretion to
specify such procedures in a future policy statement or on a case-by-
case basis by order.
Comment: The draft policy statement instructs licensing boards to
tailor hearing schedules to accommodate limited work authorizations, by
holding hearings on environmental matters and portions of the Safety
Evaluation Report that are ``relevant'' to environmental matters. Given
that compliance with safety regulations is the principal means by which
the NRC protects the environment, it is difficult to conceive of any
safety-related issues whose resolution could lawfully be considered
unrelated to compliance with the National Environmental Policy Act.
Therefore, the Commission should eliminate this instruction from the
policy statement. (Curran 5)
NRC Response: The Commission agrees that the portion of the draft
Policy Statement to which the comment is addressed could be
misunderstood, but disagrees with the comment's underlying premise.
Specifically, the Commission need not resolve all safety issues in
order to perform the environmental evaluation required in connection
with a request for an LWA. Rather, the Commission need only resolve
those safety issues identified in 10 CFR 50.10 as needing resolution
before the Commission may issue an LWA. The Commission has revised the
Policy Statement to eliminate the ambiguity identified in the comment.
Comment: The final Policy Statement should incorporate the
following revision: ``In all proceedings, the licensing boards should
formulate hearing schedules to accommodate any limited work
authorization request, unless the applicant specifically requests
otherwise.'' (NEI 2A) (additional suggested text in italics)
NRC Response: The presiding officer already has the authority to
modify the schedule of a proceeding consistent with fairness to all
parties and the expeditious disposition of the proceeding. See 10 CFR
2.319, 2.332, and 2.334. In this regard, the presiding officer must
consider the interests of all parties, as well as the overall schedule,
and not just the interests of the applicant. Accordingly, the
Commission declines to add the suggested language to this portion of
the Policy Statement.
Comment: The final Policy Statement should incorporate the
following revision: ``Specifically, if an applicant requests [an LWA]
as part of an application, the licensing board should generally
schedule the hearings so as to first resolve those issues prerequisite
to issuing [an LWA], up to and including an early partial decision on
the LWA.'' (NEI 2B) (additional suggested text in italics)
NRC Response: ``Resolution'' of issues prerequisite to issuing an
LWA necessarily includes a Licensing Board decision on those issues. To
add the suggested language would be redundant and possibly confusing.
Accordingly, the Commission declines to add the suggested language.
Comment: The draft Policy Statement should provide guidance for a
proceeding in which a COL application references an early site permit
(ESP) application or an application for ESP amendment, comparable to
guidance set forth for COL applications which reference a design
certification application. (Morgan Lewis 2, NEI 5)
NRC Response: The Commission agrees with this comment, and has
modified the Policy Statement accordingly.
Comment: The Commission need not delay issuance of a combined
license referencing a design certification application until the
certification rule is final, absent a legal prohibition. A COL license
condition premised on promulgation of the DC rule could be imposed,
allowing any judicial challenge to be raised in a timely manner without
adversely impacting the COL. (GE-Hitachi 2, NEI 7)
NRC Response: As the comment recognizes, the AEA requires the NRC
to make certain findings before issuing a license. While a license
condition may, in some instances, impose specific design or operational
requirements to allow the NRC to make the required findings, a license
condition may not be used to defer the required findings beyond the
issuance of the license, e.g., in order to complete a rulemaking. The
Commission believes that the approach proposed in the comment may be
inconsistent with the AEA in this respect, and so declines to adopt it.
Comment: The final Policy Statement should clarify the definition
of completeness in the context of whether an application is acceptable
for docketing, particularly given Commission approval of the Combined
License Review Task Force recommendation to extend the duration and
broaden the scope of the NRC licensing acceptance reviews. (NEI 1)
NRC Response: The NRC staff is developing detailed guidance on this
subject. Such guidance is beyond the scope of this Policy Statement and
will not be addressed in it.
Comment: The Commission should seek legislation to eliminate
mandatory uncontested hearings. (NEI 9)
NRC Response: The question of whether legislation on a particular
matter should be sought is beyond the scope of the Policy Statement.
The Commission is not modifying the Policy Statement in response to
this comment.
Comment: The Commission should commence COL licensing hearings
based on the availability of draft licensing documents where
circumstances warrant. (NEI 11)
NRC Response: We have recently addressed this question in our
decision in Southern Nuclear Operating Co. (Early Site Permit for
Vogtle ESP Site), CLI-07-17, 65 NRC 392 (2007). In that decision, we
held that the Licensing Board, pursuant to 10 CFR 2.332(d), may not
commence a hearing on environmental issues before the final
environmental impact statement has been issued. Id. at 394. Hearings
may be held on safety issues, however, prior to the staff's publication
of its safety evaluation. The commenter has not
[[Page 20969]]
identified any reason for us to revisit that decision, which provides
the basis for our position on the matter, and we decline to do so.
Comment: Commission policy should seek to ensure the NRC staff's
timely completion of licensing reviews for new plant applications. (NEI
12)
NRC Response: The NRC has, for the last several years, been
diligently preparing to review applications to build and operate new
reactors. Part of that preparation has involved significant NRC staff
effort in planning for timely reviews that assure that the agency
discharges its duties under the Atomic Energy Act and NEPA. These
efforts have been and continue to be reflected in the agency's
Strategic Plans and budget requests, among other statements. The
commenters can be assured that the NRC is committed to timely reviews
provided it receives complete, high quality information from
applicants.
In closing, the Commission notes that several commenters offered
general statements of support or criticism of the Commission's
licensing process or parts of that process. While the Commission
acknowledges those comments, they do not raise any specific issue
related to the Policy Statement, and no response to them is necessary.
STATEMENT OF POLICY ON CONDUCT OF NEW REACTOR LICENSING PROCEEDINGS
CLI-08-07
I. Introduction
Because the Commission has received the first several applications
for combined licenses (COLs) for nuclear power reactors and expects
that several more applications for COLs will be filed within the next
two years, the Commission has reexamined its procedures for conducting
adjudicatory proceedings involving power reactor licensing. Such
examination is particularly appropriate since the Commission will be
considering these COL applications at the same time it expects to be
reviewing various design certification and early site permit (ESP)
applications, and the COL applications will likely reference design
certification rules and ESPs, or design certification and ESP
applications. Hearings related to the COL and ESP applications will be
conducted within the framework of our Rules of Practice in 10 CFR part
2, as revised in 2004 and further updated in 2007 to reflect the
revisions to 10 CFR part 52, and the existing policies applicable to
adjudications. The Commission has, therefore, considered the
differences between the licensing and construction of the first
generation of nuclear plants, which involved developing technology, and
the currently anticipated plants, which may be much more standardized
than previous plants.
We believe that the 10 CFR part 2 procedures, as applied to the 10
CFR part 52 licensing process, will provide a fair and efficient
framework for litigation of disputed issues arising under the Atomic
Energy Act of 1954, as amended (Act) and the National Environmental
Policy Act of 1969, as amended (NEPA), that are material to
applications. Nonetheless, we also believe that additional improvements
can be made to our process. In particular, the guidance stated in this
policy statement is intended to implement our goal of avoiding
duplicative litigation through consolidation to the extent possible.
The differences between the new generation of designs and the old,
including the degree of standardization, as well as the differences
between the 10 CFR part 50 and 10 CFR part 52 licensing processes, have
led the Commission to review its procedures for treatment of a number
of matters. Given the anticipated degree of plant standardization, the
Commission has most closely considered the potential benefits of the
staff's conducting its safety reviews using a ``design-centered''
approach, in which multiple applicants would apply for COLs for plants
of identical design at different sites, and of consolidation of issues
common to such applications before a single Atomic Safety and Licensing
Board (licensing board or ASLB). The Commission has also considered its
treatment of Limited Work Authorization requests; the timing of
litigation of safety and environmental issues; and the order of
procedure for hearings on inspections, tests, analyses, and acceptance
criteria (ITAAC), which are completed before fuel loading. In
considering these matters, the Commission sought to identify procedural
measures within the existing Rules of Practice to ensure that
particular issues are considered in the agency proceeding that is the
most appropriate forum for resolving them, and to reduce unnecessary
burdens for all participants.
The new Commission policy builds on the guidance in its current
policies, issued in 1981 and 1998, on the conduct of adjudicatory
proceedings, which the Commission endorses. Statement of Policy on
Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18 (July 28,
1998), 63 FR 41872 (August 5, 1998); Statement of Policy on Conduct of
Licensing Proceedings, CLI-81-8, 13 NRC 452 (May 20, 1981), 46 FR 28533
(May 27, 1981). The 1981 and 1998 policy statements provided guidance
to licensing boards on the use of tools, such as the establishment of
and adherence to reasonable schedules, intended to reduce the time for
completing licensing proceedings while ensuring that hearings were fair
and produced adequate records. Since the Commission issued its previous
statements, the Rules of Practice in 10 CFR Part 2 have been revised,
and licensing proceedings are now usually conducted under the
procedures of Subpart L, rather than Subpart G. See ``Changes to
Adjudicatory Process,'' Final Rule, 69 FR 2182 (January 14, 2004). In
addition, we have recently amended our licensing regulations in 10 CFR
Parts 2, 50, 51 and 52 to clarify and improve the 10 CFR Part 52
licensing process. This statement of policy thus supplements the 1981
and 1998 statements.
With both the recent revisions to 10 CFR Part 2 and this guidance,
the Commission's objectives remain unchanged. As always, the Commission
aims to provide a fair hearing process, to avoid unnecessary delays in
its review and hearing processes, and to enable the development of an
informed adjudicatory record that supports agency decision making on
matters related to the NRC's responsibilities for protecting public
health and safety, the common defense and security, and the
environment. In the context of new reactor licensing under 10 CFR part
52, members of the public should be afforded an opportunity for hearing
on each genuine issue in dispute that is material to the particular
agency action subject to adjudication. By the same token, however,
applicants for a license should not have to litigate each such issue
more than once.
The Commission emphasizes its expectation that the licensing boards
will enforce adherence to the hearing procedures set forth in the
Commission's Rules of Practice in 10 CFR Part 2, as interpreted by the
Commission. In addition, the Commission has identified certain specific
approaches for its licensing boards to consider implementing in
individual proceedings, if appropriate, to minimize burdens on all
parties involved. The measures suggested in this policy statement can
be accomplished within the framework of the Commission's existing Rules
of Practice. The Commission may consider further changes to the Rules
of Practice as appropriate to enable additional improvements to the
adjudicatory process.
[[Page 20970]]
II. Specific Guidance
Current adjudicatory procedures and policies provide the latitude
to the Commission, its licensing boards and presiding officers to
instill discipline in the hearing process and ensure a prompt yet fair
resolution of contested issues in adjudicatory proceedings. In the 1981
and 1998 policy statements, the Commission encouraged licensing boards
to use a number of techniques for effective case management in
contested proceedings. Licensing boards and presiding officers should
continue to use these techniques, but should do so with regard for the
new licensing processes in 10 CFR part 52 and the anticipated high
degree of new plant standardization, which may afford significant
efficiencies.
The Commission's approach to standardization through design
certification has the potential for resolving design-specific issues in
a rule, which subsequently cannot be challenged through application-
specific litigation. See 10 CFR 52.63 (2007). Matters common to a
particular design, however, may not have been resolved even for a
certified design. For example, matters not treated as part of the
design, such as operational programs, may remain unresolved for any
particular application referencing a particular certified design.
Further, site-specific design matters and satisfaction of ITAAC will
not be resolved during design certification. The timing and manner in
which associated design certification and COL applications are docketed
may affect the resolution of these matters in proceedings on those
applications, e.g., with respect to what forum is appropriate for
resolving an issue. As discussed further below, a design-centered
review approach for treating such matters in adjudication may yield
significant efficiencies in Commission proceedings.
As set forth below, the Commission has identified other approaches,
as applied in the context of the current Rules of Practice in 10 CFR
Part 2, as well as variations in procedure permitted under the current
Rules of Practice that licensing boards should apply to proceedings.
The Commission also intends to exercise its inherent supervisory
authority, including its power to assume part or all of the functions
of the presiding officer in a given adjudication, as appropriate in the
context of a particular proceeding. See, e.g., Public Service Co. of
New Hampshire (Seabrook Station, Units 1 and 2), CLI-90-3, 31 NRC 219,
229 (1990). The Commission intends to promptly respond to adjudicatory
matters placed before it, and such matters should ordinarily take
priority over other actions before the Commissioners. We begin with the
docketing of applications.
A. INITIAL MATTERS
1. Docketing of Applications
The rules in part 52 are designed to accommodate a COL applicant's
particular circumstances, such that an applicant may reference a design
certification rule, an ESP, both, or neither. See 10 CFR 52.79. The
rules also allow a COL applicant to reference a design certification or
ESP application that has been docketed but not yet granted. See 10 CFR
52.27(c) and 52.55(c). Further, we have changed the procedures in Sec.
2.101 to address ESP, design certification, and COL applications, in
addition to construction permit and operating license applications.
Accordingly, a COL applicant may submit the safety information required
of an applicant by Sec. Sec. 52.79 and 52.80(a) and (b) apart from the
environmental information required by Sec. 52.80(c), as is now
permitted by Sec. 2.101(a)(5). In addition, we have lengthened the
time allowed between submission of parts of an application under Sec.
2.101(a)(5) from six to eighteen months.
Notwithstanding these procedures, the Commission can envision a
situation in which an applicant might want to present a particular ESP
or COL application for docketing in a manner not currently authorized.
For example, an applicant might wish to apply for a COL for a plant
identical to those of other applicants under the design-centered
approach, and request application of the provisions of 10 CFR part 52,
Appendix N and Part 2, Subpart D, before it has prepared the site- or
plant-specific portion of the application. Such an applicant might not
be prepared to submit its application as required by the rules, even
considering the flexibility afforded by Sec. 2.101(a)(5).
Under such circumstances, the Commission would be favorably
disposed to the NRC staff's entertaining a request for an exemption
from the requirements of Sec. 2.101. Such an exemption request could
be granted if it is authorized by law, will not endanger life or
property or the common defense and security, and is otherwise in the
public interest. Moreover, because this is a procedural rule
established for the effective and efficient processing of applications,
the Commission can exercise its inherent authority to approve such
exemptions based on similar considerations of effectiveness and
efficiency. The Commission strongly discourages piecemeal submission of
portions of an application pursuant to an exemption unless such a
procedure is likely to afford significant advantages to the design-
centered review approach described in more detail below. The Commission
intends to monitor requests for exemptions from the requirements of
Sec. 2.101, and to issue a case-specific order governing such matters
if warranted. Whether a COL application is submitted pursuant to Sec.
2.101 or an exemption, the first part of an application submitted
should be complete before the staff accepts that part of the
application for docketing. Similarly, the staff should not docket any
subsequently submitted portion of the application unless it is
complete.
2. Notice of Hearing
As required by Sec. 2.104(a), a Notice of Hearing on an
application is to be issued as soon as practicable after the
application is docketed. A Notice of Hearing for a complete COL
application should normally be issued within about thirty (30) days of
the staff's docketing of the application. Section 2.101(a)(5), which
provides for submitting applications in two parts, does not specify
when the Notice of Hearing should be issued, nor is it clear when a
Notice of Hearing would be issued for an application filed in parts
under an exemption from Sec. 2.101. With two exceptions, the
Commission believes it most efficient to issue a Notice of Hearing only
when the entire application has been docketed. The first exception is a
construction permit application submitted in accordance with Sec.
2.101(a-1), which results in a decision on early site review. The
second exception involves circumstances in which: (1) A complete
application is submitted; (2) one or more other applications that
identify a design identical to that described in the complete
application are submitted; and (3) another application is incomplete
with respect to matters other than those common to the complete
application. Under such circumstances, the Commission will give notice
of the hearing on the complete application, and give notice of the
hearing on the other application with respect to the matters common to
the complete application. The Commission determination in this regard
will consider the extent to which any notice is consistent with the
timely completion of staff reviews using the design-centered approach
and with the efficient conduct of any required hearing, with due regard
for the rights of all parties. Upon submission of information
[[Page 20971]]
completing the other application, the Commission would give notice of a
hearing with respect to that information. Under all other
circumstances, the Commission will issue a Notice of Hearing only when
a complete application has been docketed in order to avoid piecemeal
litigation.
3. Limited Work Authorizations
Section 50.10 contains provisions for limited work authorizations,
which allows certain construction activities on production and
utilization facilities to commence before a construction permit or
combined license is issued. The Commission has redefined the term
``construction'' in 10 CFR 50.10, as well as the provisions governing
limited work authorizations. Accordingly, we are providing additional
guidance regarding limited work authorizations.
In all proceedings, the licensing boards should formulate hearing
schedules to accommodate any limited work authorization request.
Specifically, if an applicant requests a limited work authorization as
part of an application, the licensing board should generally schedule
the hearings so as to first resolve those issues prerequisite to
issuing a limited work authorization. This may lead to hearings on the
safety and environmental matters specified in 10 CFR 50.10 before
commencement of hearings on other issues. Such considerations should be
incorporated into the milestones set for each proceeding in accordance
with 10 CFR Part 2, Appendix B.
B. Treatment of Generic Issues
1. Consolidation of Issues Common to Multiple Applications
The Commission believes that generic consideration of issues common
to several applications may well yield benefits, both in terms of
effective consideration of issues and efficiency. Such benefits would
accrue not only to the staff review process, but also to litigation of
such matters before the licensing board. We acknowledge that
consideration of generic matters common to several applications may be
possible in several contexts. For example, an applicant might seek
staff review of a corporate program such as quality assurance or
security that is common to several of its applications. If contentions
on such a program are admitted with respect to more than one
application, consolidation of such contentions before a single
licensing board may result in more efficient decision making, as well
as conserving the parties' resources. Licensing boards should consider
consolidating proceedings involving such matters, pursuant to an
applicant's motion or pursuant to their own initiative under Sec.
2.317(b). In addition, different applicants may seek COLs for plants of
identical design at multiple sites, as in the design-centered review
approach, and may therefore seek to implement the provisions of 10 CFR
Part 2, Subpart D. In this regard, we have amended Subpart D to Part 2
and Appendix N to 10 CFR Part 52 to provide explicit treatment of COL
applications for identical plants at multiple sites.
Because we believe that the design-centered approach is the chief
example of circumstances in which generic consideration of issues
common to several applications may yield benefits, we discuss that
approach in detail below. While much has changed since we first
promulgated Subpart D in 1975, we believe many of the concepts
originally underpinning Subpart D still apply today, and we presume
that Subpart D procedures, as well as other applicable Rules of
Practice in 10 CFR Part 2, will be applied to applications employing a
design-centered review approach. Our vision for the implementation of a
``design-centered'' approach under the procedures of Subpart D is set
forth below.
As indicated above, issues, such as those involving operational
programs or design acceptance criteria,\1\ common to several
applications referencing a design certification rule or design
certification application may be most effectively and efficiently
treated with a single review in a ``design-centered'' approach and,
subsequently, in a single hearing. In order to achieve such benefits,
however, applicants who intend to apply for licenses for plants of
identical design and request the staff to employ the design-centered
review approach should submit their applications simultaneously.
Subpart D nonetheless affords the licensing board discretion to
consolidate applications filed close in time, if this will be more
efficient and otherwise provide for a fair hearing. While not required,
we believe applicants for COLs for plants of identical design should
consolidate the portions of their applications containing common
information into a joint submission. In doing so, each applicant would
also submit the information required by Sec. Sec. 50.33(a) through (e)
and 50.37 and would identify the location of its proposed facility, if
this information has not already been submitted to the Commission.
---------------------------------------------------------------------------
\1\ Design acceptance criteria are a special type of ITAAC that
are used to verify the resolution of design issues for which
completed design information was not provided in the design
certification application.
---------------------------------------------------------------------------
Appendix N requires that the design of those structures, systems,
and components important to radiological health and safety and the
common defense and security described in separate applications be
identical in order for the Commission to treat the applications under
Appendix N and Subpart D. The Commission believes that any variances or
exemptions requested from a design certification in this context should
be common to all applications. In addition, while not required, the
Commission encourages applicants to standardize the balance of their
plants insofar as is practicable.
Subpart D provides flexibility in the hearing process. Each
application will necessarily involve a separate proceeding to consider
site-specific matters, and the required hearings may, as appropriate,
be comprised of two (or more) phases, the sequence of which depends on
the circumstances. For any of the phases, the hearings may be
consolidated to consider common issues relating to all or some of the
applications involved.
An applicant requesting treatment of its application under the
design-centered approach may seek to submit separate portions of the
application at different times, pursuant to Sec. 2.101(a)(5) or an
exemption from Sec. 2.101, as discussed above. Under such
circumstances, the Commission intends to issue a Notice of Hearing for
the portion of the application to be reviewed under the design-centered
approach, and a second notice limited to the portion of the application
not treated under the design-centered review approach upon submission
of the complete application. Such a procedure would not affect any
prospective intervenor's substantive rights; i.e., members of the
public will still have a right to petition for intervention on every
issue material to the Commission's decision on each individual
application.
The staff would review the common information in the applications,
or in the joint submission, for sufficiency for docketing and, if
acceptable, would docket this information as a portion of each
application. Each application would be assigned a docket number in
connection with the first portion of the application docketed, which
could be the common submission. The applicants should designate one
applicant to be the single point of contact for the staff review of
this common information, and to represent the applicants before the
licensing board.
[[Page 20972]]
Consistent with our guidance set forth above, we would expect to
issue a Notice of Hearing only upon the docketing of at least one
complete application that includes the common information. The Notice
of Hearing will not only provide an opportunity to petition to
intervene in the proceeding on the complete individual application, but
will also provide such an opportunity with respect to the information
common to all the applications, which would be docketed separately.
Accordingly, upon issuance of such a notice, the Chief Judge of the
Atomic Safety and Licensing Board Panel (ASLBP or Panel) should, as is
the normal practice, designate a licensing board to preside over the
application-specific proceeding, and should also designate a licensing
board to preside over the consolidated portions of the applications.
Initially, these two licensing boards could be the same.
A person having standing with respect to one of the facilities
proposed in the applications partially consolidated would be entitled
to petition for intervention in the proceeding on the common
information. Such a petitioner would be required to satisfy the other
applicable provisions of Sec. 2.309 with respect to the application
being contested to be admitted as a party to the proceeding on the
common information. Petitioners admitted as parties to such a
proceeding with respect to a proposed facility for which the
application remains incomplete at the time of the initial Notice of
Hearing would have an opportunity to propose contentions with respect
to the rest of the application upon the docketing of a complete
application, but would not need to demonstrate standing a second time.
Those persons granted intervention are required to designate a lead for
common contentions, as required by Sec. 2.309(f)(3); as stated above,
applicants submitting common information under the design-centered
approach would likewise designate a representative to appear before the
licensing board. In addition, the presiding officer may require
consolidation of parties in accordance with Sec. 2.316.
The Commission is willing to consider other methods of managing
proceedings involving consideration of information common to several
applications. For example, the Commission does not intend to foreclose
the Chief Judge of the Panel from designating a licensing board to
preside over common portions of applications on the motion of the
applicants, even if separate proceedings have already been convened on
one or more of the applications involved. In such a case, however, the
applicants should jointly identify the common portions of their
respective applications when requesting the Chief Judge to take such
action. Petitioners admitted as parties to any affected proceeding
would of course have the right to answer such a motion.
As stated above, upon issuance of a Notice of Hearing for a
complete plant-specific application that includes information on
``common issues,'' the Chief Judge of the Panel should designate a
licensing board to preside over the plant-specific portion of each
application that is then complete. Each licensing board, whether
designated to consider the common issues or a specific application,
should manage its respective portion of the proceedings with due regard
for our 1981 and 1998 policy statements. We emphasize that the Chief
Judge of the Panel should not designate another licensing board to
consider specific aspects of a proceeding unless the standards we
enunciated in Private Fuel Storage, LLC (Independent Spent Fuel Storage
Installation), CLI-98-7, 47 NRC 307, 310-11 (1998) for doing so are
met. These standards are that the proceeding involve discrete and
separable issues; that multiple licensing boards can handle these
issues more expeditiously than a single licensing board; and that the
proceeding can be conducted without undue burden on the parties. Id.
An initial decision by the licensing board presiding over a
proceeding on a joint submission containing information common to more
than one plant-specific application will be a partial initial decision
for which a party may request review under Sec. 2.341 (as is also
provided in Subpart D) and which we may review on our own motion. Such
a decision would become part of each initial decision in the individual
application proceedings, which will become final in accordance with the
regulation that applies depending on which subpart of our Rules of
Practice has been applied in a proceeding on a particular application
(e.g., Sec. 2.713 under Subpart G; Sec. 2.1210 under Subpart L).
Accordingly, a decision on common issues would become final agency
action if it resolves a specific intervenor's contentions in a
proceeding on an individual application.
Revisions of specific applications during the review process could
result in formerly common issues being referred to the licensing board
presiding over a specific portion of one or more applications. These
issues would be resolved in the normal course of adjudication, but may
well result in delay in final determination of the individual
application.
2. COL Applications Referencing Design Certification and ESP
Applications
With respect to a design for which certification has been requested
but not yet granted, the Commission intends to follow its longstanding
precedent that ``licensing boards should not accept in individual
license proceedings contentions which are (or are about to become) the
subject of general rulemaking by the Commission.'' Duke Energy Corp.
(Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 345
(1999), quoting Potomac Elec. Power Co. (Douglas Point Nuclear
Generating Station, Units 1 and 2), ALAB-218, 8 AEC 79, 85 (1974). In
accordance with these decisions, a licensing board should treat the
NRC's docketing of a design certification application as the
Commission's determination that the design is the subject of a general
rulemaking. We believe that a contention that raises an issue on a
design matter addressed in the design certification application should
be resolved in the design certification rulemaking proceeding, and not
the COL proceeding. Accordingly, in a COL proceeding in which the
application references a docketed design certification application, the
licensing board should refer such a contention to the staff for
consideration in the design certification rulemaking, and hold that
contention in abeyance, if it is otherwise admissible. Upon adoption of
a final design certification rule, such a contention should be denied.
Similar considerations apply if a COL applicant references an ESP
application that has not been granted. In such a case, the Licensing
Board presiding over the proceeding on the COL application should refer
contentions within the scope of the ESP proceeding to the Licensing
Board presiding over the ESP proceeding.
An individual applicant, nonetheless, may choose to request that
the application be treated as a ``custom'' design, and thereby resolve
any specific technical matter in the context of its individual
application. An applicant might choose such a course if, for example,
the referenced design certification application were denied, or the
rulemaking delayed. The application-specific licensing board would then
consider contentions on design issues, which otherwise would have been
treated in the design certification proceeding. Similarly, a COL
applicant referencing a design
[[Page 20973]]
certification application may request an exemption from one or more
elements of the requested design certification, as provided in Sec.
52.63(b) and Section VIII of each appendix to 10 CFR Part 52 that
certifies a design. As set forth in those provisions, such a request is
subject to litigation in the same manner as other issues in a COL
proceeding. Since the underlying element of the design may change after
the exemption request is submitted, such an exemption may ultimately
become unnecessary or may need to be reconsidered or conformed to the
final design certification rule. Such matters would be considered by an
application-specific licensing board. A licensing board considering a
COL application referencing a design certification application might
conclude the proceeding and determine that the COL application is
otherwise acceptable before the design certification rule becomes
final. In such circumstances, the license may not issue until the
design certification rule is final, unless the applicant requests that
the entire application be treated as a ``custom'' design.
COL applicants should coordinate with vendors applying for
certified designs to ensure that decisions on design certification
applications do not impede decisions on COL applications. If design
certification is delayed, a licensing board considering common
technical issues may likewise be delayed.
3. Subsequent Applications Referencing a Design Certification Rule
If the Commission grants initial COL applications referencing a
particular design certification rule, the Commission believes it likely
that subsequent COL applicants will also reference that design
certification rule. In this event, the Commission would expect to
develop additional processes to facilitate coordination of proceedings
on such applications. We observe, however, that an issue associated
with such matters as operational programs or design acceptance criteria
may be resolved through the design-centered review approach for initial
applications containing common information, but we do not intend to
impose any resolution so obtained on subsequent COL applicants. While
there is no requirement to adopt a previously-approved resolution of an
issue, and subsequent applicants are free to use the most recent state-
of-the-art methods to resolve such issues, we nevertheless urge such
applicants to consider adopting previous resolutions in order to
maximize plant standardization. If a COL applicant adopts an approach
to a technical issue previously found acceptable, no further staff
review of the adequacy of the approach is necessary. Rather, the staff
review should be limited to verification that the applicant has indeed
adopted the previously approved approach and will properly implement
it, and, for technical issues that depend on site-specific factors,
that the previously-approved approach applies to the applicant's
proposed facility.
C. ITAAC
In first promulgating 10 CFR Part 52 in 1989, we determined that
hearings on whether the acceptance criteria in a COL have been met
(ITAAC-compliance hearings) would be held in accordance with the
Administrative Procedure Act (APA) provisions applicable to determining
applications for initial licenses, but that we would specify the
procedures to be followed in the Notice of Hearing. See 10 CFR
52.103(b)(2)(i) (1990); 54 FR 15395 (April 18, 1989). In enacting the
Energy Policy Act of 1992, Congress subsequently confirmed our
authority to adopt 10 CFR Part 52, and by statute accorded us
additional discretion to determine procedures, whether formal or
informal, for ITAAC-compliance hearings. See Atomic Energy Act section
189a.(1)(B)(iv), 42 U.S.C. 2239(a)(1)(B)(iv). We therefore amended
Sec. 52.103(d) to provide that we would determine, in our discretion,
``appropriate hearing procedures, whether informal or formal
adjudicatory, for any hearing under [Sec. 52.103(a)].''
While we recognize that specification of procedures for the
treatment of requests for hearings on ITAAC would lend some
predictability to the ITAAC compliance process, we are not yet in a
position to specify such procedures, since we have not approved even
one complete set of ITAAC necessary for issuing a COL. Further, ITAAC-
compliance hearings are likely several years distant, and we have no
experience with the type and number of hearing requests that we might
receive with respect to ITAAC compliance. While it may not be necessary
to consider the first requests for ITAAC-compliance hearings in order
for us to determine the procedures appropriate to govern such hearings,
we believe it premature to specify such procedures now. In addition,
the staff is now formulating guidance on the times necessary for the
staff to consider different categories of completed ITAAC, and this
guidance should assist licensees in scheduling and performing ITAAC so
as to minimize the critical path for staff consideration of completed
ITAAC.
In view of the above considerations, we have identified one measure
to lend predictability to the ITAAC compliance process: The Commission
itself will serve as the presiding officer with respect to any request
for a hearing filed under Sec. 52.103. In acting as the presiding
officer under these circumstances, we will make three initial
determinations. First, we will decide whether the person requesting the
hearing has shown, prima facie, that one or more of the acceptance
criteria in the COL have not been, or will not be met, and the
attendant public health and safety consequences of such non-conformance
that would be contrary to providing reasonable assurance of adequate
protection of the public health and safety. Second, if we decide to
grant a request for a hearing on ITAAC compliance, we will decide,
pursuant to Sec. 52.103(c), whether there will be reasonable assurance
of adequate protection of the public health and safety during a period
of interim operation. Third, we will designate the procedures under
which the proceeding shall be conducted. We have amended Sec. 52.103
and our Rules of Practice (10 CFR 2.309, 2.310, and 2.341) to
incorporate these changes.
III. Conclusion
The Commission reiterates its long-standing commitment to ensuring
that hearings are fair and produce an adequate record for decision,
while at the same time being completed as expeditiously as possible.
The Commission intends to monitor its proceedings to ensure that they
are being concluded in a fair and timely fashion. To this end, the
Commission will act in individual proceedings, as appropriate, to
provide guidance to licensing boards and parties, and to decide issues
in the interest of a prompt and effective resolution of the matters set
for adjudication.
Dated at Rockville, Maryland, this 11th day of April 2008.
For the Nuclear Regulatory Commission.
Annette Vietti-Cook,
Secretary of the Commission.
[FR Doc. E8-8272 Filed 4-16-08; 8:45 am]
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