Conduct of New Reactor Licensing Proceedings; Final Policy Statement, 20963-20973 [E8-8272]

Download as PDF sroberts on PROD1PC64 with NOTICES Federal Register / Vol. 73, No. 75 / Thursday, April 17, 2008 / Notices that they wish to participate in the proceeding, so that the filer need not serve the documents on those participants separately. Therefore, applicants and other participants (or their counsel or representative) must apply for and receive a digital ID certificate before a hearing request/ petition to intervene is filed so that they can obtain access to the document via the E-Filing system. A person filing electronically may seek assistance through the ‘‘Contact Us’’ link located on the NRC Web site at http://www.nrc.gov/site-help/esubmittals.html or by calling the NRC technical help line, which is available between 8:30 a.m. and 4:15 p.m., Eastern Time, Monday through Friday. The help line number is (800) 397–4209 or locally, (301) 415–4737. Participants who believe that they have a good cause for not submitting documents electronically must file a motion, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by firstclass mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. Documents submitted in adjudicatory proceedings will appear in NRC’s electronic hearing docket which is available to the public at http:// ehd.nrc.gov/EHD_Proceeding/home.asp, unless excluded pursuant to an order of the Commission, an Atomic Safety and Licensing Board, or a Presiding Officer. Participants are requested not to include personal privacy information, such as social security numbers, home addresses, or home phone numbers in their filings. With respect to copyrighted works, except for limited excerpts that serve the purpose of the adjudicatory filings and would constitute a Fair Use application, Participants are requested not to include copyrighted materials in their submissions. VerDate Aug<31>2005 17:08 Apr 16, 2008 Jkt 214001 Non-timely requests and/or petitions and contentions will not be entertained absent a determination by the Commission, the presiding officer, or the Atomic Safety and Licensing Board that the petition and/or request should be granted and/or the contentions should be admitted, based on a balancing of the factors specified in 10 CFR 2.309(c)(1)(i)–(viii). To be timely, filings must be submitted no later than 11:59 p.m. Eastern Time on the due date. For further details with respect to this exigent license application, see the application for amendment dated April 10, 2008, from Arizona Public Service Company which is available for public inspection at the Commission’s Public Document Room (PDR), located at One White Flint North, Public File Area O1 F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible electronically from the Agencywide Documents Access and Management System’s (ADAMS) Public Electronic Reading Room on the Internet at the NRC Web site http://www.nrc.gov/readingrm.html. Persons who do not have access to ADAMS or who encounter problems in accessing the documents located in ADAMS should contact the NRC PDR Reference staff by telephone at 1–800–397–4209, or 301–415–4737, or by e-mail to pdr@nrc.gov. Dated at Rockville, Maryland, this 11th day of April, 2008. For the Nuclear Regulatory Commission. Michael T. Markley, Senior Project Manager, Plant Licensing Branch LPL4, Division of Operating Reactor Licensing, Office of Nuclear Reactor Regulation. [FR Doc. E8–8271 Filed 4–16–08; 8:45 am] BILLING CODE 7590–01–P NUCLEAR REGULATORY COMMISSION Conduct of New Reactor Licensing Proceedings; Final Policy Statement Nuclear Regulatory Commission. ACTION: Final policy statement. AGENCY: 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 PO 00000 Frm 00059 Fmt 4703 Sfmt 4703 20963 301–415–1696, e-mail Robert.Weisman@nrc.gov. 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. SUPPLEMENTARY INFORMATION: E:\FR\FM\17APN1.SGM 17APN1 sroberts on PROD1PC64 with NOTICES 20964 Federal Register / Vol. 73, No. 75 / Thursday, April 17, 2008 / Notices 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 § 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 VerDate Aug<31>2005 17:08 Apr 16, 2008 Jkt 214001 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, PO 00000 Frm 00060 Fmt 4703 Sfmt 4703 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 § 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 applicationspecific 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 § 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 E:\FR\FM\17APN1.SGM 17APN1 sroberts on PROD1PC64 with NOTICES Federal Register / Vol. 73, No. 75 / Thursday, April 17, 2008 / Notices 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 § 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 § 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 § 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 § 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 § 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 VerDate Aug<31>2005 17:08 Apr 16, 2008 Jkt 214001 applicant has sought an exemption from § 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 PO 00000 Frm 00061 Fmt 4703 Sfmt 4703 20965 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 E:\FR\FM\17APN1.SGM 17APN1 sroberts on PROD1PC64 with NOTICES 20966 Federal Register / Vol. 73, No. 75 / Thursday, April 17, 2008 / Notices 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 VerDate Aug<31>2005 17:08 Apr 16, 2008 Jkt 214001 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 § 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 PO 00000 Frm 00062 Fmt 4703 Sfmt 4703 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 § 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 E:\FR\FM\17APN1.SGM 17APN1 sroberts on PROD1PC64 with NOTICES Federal Register / Vol. 73, No. 75 / Thursday, April 17, 2008 / Notices 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 VerDate Aug<31>2005 17:08 Apr 16, 2008 Jkt 214001 (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 crossexamination together with crossexamination 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 PO 00000 Frm 00063 Fmt 4703 Sfmt 4703 20967 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 E:\FR\FM\17APN1.SGM 17APN1 sroberts on PROD1PC64 with NOTICES 20968 Federal Register / Vol. 73, No. 75 / Thursday, April 17, 2008 / Notices 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 § 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 caseby-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 VerDate Aug<31>2005 17:08 Apr 16, 2008 Jkt 214001 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. PO 00000 Frm 00064 Fmt 4703 Sfmt 4703 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 E:\FR\FM\17APN1.SGM 17APN1 Federal Register / Vol. 73, No. 75 / Thursday, April 17, 2008 / Notices 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 sroberts on PROD1PC64 with NOTICES 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 VerDate Aug<31>2005 17:08 Apr 16, 2008 Jkt 214001 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 ‘‘designcentered’’ 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 PO 00000 Frm 00065 Fmt 4703 Sfmt 4703 20969 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. E:\FR\FM\17APN1.SGM 17APN1 sroberts on PROD1PC64 with NOTICES 20970 Federal Register / Vol. 73, No. 75 / Thursday, April 17, 2008 / Notices 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 VerDate Aug<31>2005 18:11 Apr 16, 2008 Jkt 214001 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 § 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 §§ 52.79 and 52.80(a) and (b) apart from the environmental information required by § 52.80(c), as is now permitted by § 2.101(a)(5). In addition, we have lengthened the time allowed between submission of parts of an application under § 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 designcentered 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 § 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 § 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 PO 00000 Frm 00066 Fmt 4703 Sfmt 4703 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 § 2.101, and to issue a case-specific order governing such matters if warranted. Whether a COL application is submitted pursuant to § 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 § 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 § 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 § 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 designcentered approach and with the efficient conduct of any required hearing, with due regard for the rights of all parties. Upon submission of information E:\FR\FM\17APN1.SGM 17APN1 Federal Register / Vol. 73, No. 75 / Thursday, April 17, 2008 / Notices 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 sroberts on PROD1PC64 with NOTICES 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 VerDate Aug<31>2005 17:08 Apr 16, 2008 Jkt 214001 proceedings involving such matters, pursuant to an applicant’s motion or pursuant to their own initiative under § 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 designcentered 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 §§ 50.33(a) through (e) and 50.37 and would identify the location of its proposed facility, if this information 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. PO 00000 Frm 00067 Fmt 4703 Sfmt 4703 20971 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 designcentered approach may seek to submit separate portions of the application at different times, pursuant to § 2.101(a)(5) or an exemption from § 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. E:\FR\FM\17APN1.SGM 17APN1 sroberts on PROD1PC64 with NOTICES 20972 Federal Register / Vol. 73, No. 75 / Thursday, April 17, 2008 / Notices 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 applicationspecific 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 § 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 § 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 § 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 VerDate Aug<31>2005 17:08 Apr 16, 2008 Jkt 214001 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 plantspecific 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 § 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., § 2.713 under Subpart G; § 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 PO 00000 Frm 00068 Fmt 4703 Sfmt 4703 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 E:\FR\FM\17APN1.SGM 17APN1 Federal Register / Vol. 73, No. 75 / Thursday, April 17, 2008 / Notices sroberts on PROD1PC64 with NOTICES certification application may request an exemption from one or more elements of the requested design certification, as provided in § 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 previouslyapproved 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 VerDate Aug<31>2005 17:08 Apr 16, 2008 Jkt 214001 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 ITAACcompliance hearings. See Atomic Energy Act section 189a.(1)(B)(iv), 42 U.S.C. 2239(a)(1)(B)(iv). We therefore amended § 52.103(d) to provide that we would determine, in our discretion, ‘‘appropriate hearing procedures, whether informal or formal adjudicatory, for any hearing under [§ 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, ITAACcompliance 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 ITAACcompliance 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 PO 00000 Frm 00069 Fmt 4703 Sfmt 4703 20973 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 § 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 nonconformance 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 § 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 § 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 longstanding 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] BILLING CODE 7590–01–P SECURITIES AND EXCHANGE COMMISSION Proposed Collection; Comment Request Upon written request, Copies available from: U.S. Securities and Exchange E:\FR\FM\17APN1.SGM 17APN1

Agencies

[Federal Register Volume 73, Number 75 (Thursday, April 17, 2008)]
[Notices]
[Pages 20963-20973]
From the Federal Register Online via the Government Printing 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.

-----------------------------------------------------------------------

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 Robert.Weisman@nrc.gov.

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