Draft Statement of Policy on Conduct of New Reactor Licensing Proceedings, 32139-32144 [E7-11264]

Agencies

• NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 72, Number 111 (Monday, June 11, 2007)]
[Notices]
[Pages 32139-32144]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-11264]


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NUCLEAR REGULATORY COMMISSION


Draft Statement of Policy on Conduct of New Reactor Licensing 
Proceedings

AGENCY: Nuclear Regulatory Commission.

ACTION: Issuance of draft policy statement and notice of opportunity 
for public comment.

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SUMMARY: The Nuclear Regulatory Commission (NRC or the Commission) is 
considering adopting a statement of policy concerning the conduct of 
new reactor licensing adjudicatory proceedings in view of the 
anticipated receipt of a number of applications for combined licenses 
for nuclear power reactors expected to be filed within the next two 
years. This draft policy statement is being issued for public comment.

DATES: Comments on this draft policy statement should be submitted by 
August 10, 2007, and will be considered by the Commission before 
publishing the final policy statement. Comments received after this 
date will be considered if it is practical to do so, but the Commission 
is able to ensure consideration only for comments received on or before 
this date.

ADDRESSES: You may submit comments by any one of the following methods. 
Please include Draft Statement of Policy on Conduct of New Reactor 
Licensing Proceedings in the subject line of your comments. Comments on 
this draft policy statement submitted in writing or in electronic form 
will be made available for public inspection. Because your comments 
will not be edited to remove any identifying or contact information, 
the NRC cautions you against including any information in your 
submission that you do not want to be publicly disclosed.
    Mail comments to: Secretary, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001, ATTN: Rulemakings and Adjudications Staff.
    E-mail comments to: SECY@nrc.gov. If you do not receive a reply e-
mail confirming that we have received your comments, contact us 
directly at (301) 415-1966. You may also submit comments via the NRC's 
rulemaking Web site at https://ruleforum.llnl.gov. Address questions 
about our rulemaking Web site to Carol Gallagher (301) 415-5905; e-mail 
cag@nrc.gov. Comments can also be submitted via the Federal eRulemaking 
Portal https://www.regulations.gov.
    Hand deliver comments to: 11555 Rockville Pike, Rockville, Maryland 
20852, between 7:30 a.m. and 4:15 p.m. Federal workdays. (Telephone 
(301) 415-1966)
    Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at 
(301) 415-1101.
    Publicly available documents related to this draft policy statement 
may be viewed electronically on the public computers located at the 
NRC's Public Document Room (PDR), Room O1 F21, One White Flint North, 
11555 Rockville Pike, Rockville, Maryland. The PDR reproduction 
contractor will copy documents for a fee. Selected documents, including 
comments, may be viewed and downloaded electronically via the NRC 
rulemaking Web site at https://ruleforum.llnl.gov.
    Publicly available documents created or received at the NRC after 
November 1, 1999, are available electronically at the NRC's Electronic 
Reading Room at https://www.nrc.gov/reading-rm/adams.html. From this 
site, the public can gain entry into the NRC's Agencywide Document 
Access and Management System (ADAMS), which provides text and image 
files of NRC's public documents. If you do not have access to ADAMS or 
if there are problems in accessing the documents located in ADAMS, 
contact the PDR Reference staff at 1-800-397-4209, 301-415-4737 or by 
e-mail to pdr@nrc.gov.

FOR FURTHER INFORMATION CONTACT: Robert M. Weisman, Senior Attorney, 
U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, 
telephone 301-415-1696, e-mail rmw@nrc.gov.

SUPPLEMENTARY INFORMATION:

[[Page 32140]]

Draft Statement of Policy on Conduct of New Reactor Licensing 
Proceedings; CLI-07

I. Introduction

    Because the Commission anticipates that the first several 
applications for combined licenses (COLs) for nuclear power reactors 
will be filed within the next two years, the Commission has re-examined 
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 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 (Aug. 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 (Jan. 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 reduce the time for 
completing new licensing proceedings. 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.

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 Sec.  52.63 (2006). 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

[[Page 32141]]

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 Sec.  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 
Sec. Sec.  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 may 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 
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
    The Commission has redefined the term ``construction'' in Sec.  
50.10, as well as the provisions governing limited work authorizations. 
Section 50.10 still contains provisions for limited work authorizations 
to govern certain structures and associated preparatory work. 
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 
environmental matters and the portions of the Safety Evaluation Report 
relevant to such findings before commencement of hearings on other 
issues. Such considerations should be incorporated into the milestones 
set for each

[[Page 32142]]

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 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, 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.
    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.
    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

[[Page 32143]]

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, L.L.C. (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 only in the context of final Commission action with respect to 
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 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 rule making 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 
rule making. 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 rule making 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 rule making, 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.
    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 
rule making 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 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 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. 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

[[Page 32144]]

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.

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 Sec.  
52.103(b)(2)(i) (1990); 54 FR 15395. 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 (Sec. Sec.  2.309, 2.310, and 2.341) to 
incorporate these changes.

III. Conclusion

    The Commission reiterates its long-standing commitment to the 
expeditious completion of adjudicatory proceedings while still ensuring 
that hearings are fair and produce an adequate record for decision. 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.

    For the Nuclear Regulatory Commission.

    Dated at Rockville, Maryland, this 4th day of June 2007.
Annette Vietti-Cook,
Secretary of the Commission.
 [FR Doc. E7-11264 Filed 6-8-07; 8:45 am]
BILLING CODE 7590-01-P